Today, the Wisconsin Supreme Court in a 5-2 decision (Mayo v. Wisconsin Injured Patients and Families Compensation Fund) upheld Wisconsin’s limit on noneconomic damages in medical malpractice cases. Importantly, the Court reversed its 2005 decision, Ferdon v. Wisconsin Patients Compensation Fund, which held unconstitutional Wisconsin’s previous limit on noneconomic damages.

“The Court’s decision is a victory for the rule of law and reconfirms that the legislature, not the judiciary, is the proper branch of government to determine public policy,” said Bill G. Smith, president of the Wisconsin Civil Justice Council and Wisconsin Director for the National Federation of Independent Business.

“The importance of this decision cannot be overemphasized. Gone are the days of the Supreme Court of Wisconsin setting public policy and overriding laws enacted by the legislative branch,” added Smith. “We applaud the Court for correcting its erroneous decision in Ferdon and upholding the law.”

It is also important to note that neither the statutes nor the Court’s decision preclude plaintiffs from being compensated for their injuries. Current law only limits the amount of noneconomic damages, i.e., pain and suffering, a plaintiff may receive at $750,000. There is no limit on the amount of damages a plaintiff can receive for his or her physical injuries.

The Wisconsin Civil Justice Council consists of representatives from Wisconsin’s leading business and professional organizations whose mission is to promote fairness and equity in Wisconsin’s civil justice system, with the ultimate goal of making Wisconsin a better place to work and live.

In a 5-2 decision, the Supreme Court upheld the dismissal of plaintiffs’ claims for declaratory judgement in a case protesting the formation of two tax incremental districts (TIDs) in the city of Eau Claire. The case sets a precedent for other TID and tax credits such as Foxconn to proceed.

The plaintiffs claimed that:

1. The city did not establish a lawful purpose for the TIDs under Wis. Stat. § 66.1105(4)(gm)4.a because it did not give evidence for its findings of blight in the TID area.
2. The city’s joint review board did not reasonably conclude that development would not occur without the TID (Wis. Stat. § 66.1105(4m)(b)2).
3. The city unlawfully allowed developers to use cash grants from the TID to destroy historic properties (Wis. Stat. § 66.1105(2)(f)1.a) because the development agreement did not explicitly prohibit them from using the grants for this purpose.
4. The city violated the Uniformity Clause of the Wisconsin Constitution (Art. 8 § 1) because the cash grants effectively reimbursed developers for their property taxes, thus taxing the developers at a more favorable rate than identically assessed properties.

The Court decided the plaintiffs did not present claims upon which relief could be granted because:

1. The statutory language does not require the city to provide evidence for findings of blight. Other closely related sections near the TID statutes explicitly state when there must be itemized evidence for findings of blight, but the TID section does not. Overall, the Court held that findings of blight are legislative determinations and not justiciable issues of fact or law.
2. The statutory language does not require the joint review board’s assertion that development would not occur without the TIDs to be backed by itemized evidence. Again, the Court held that the joint review board’s conclusions are legislative determinations and not justiciable issues of fact or law.
3. The historic buildings were already demolished, and the complaint failed to present facts showing the developer used tax incremental financing (TIF) funds to reimburse demolition costs.
4. The list of costs that may be covered by cash grants in Wis. Stat. § 66.1105(2)(f)1.a-n does not include property taxes, and the plaintiffs’ complaint did not establish the grants were used or were intended to be used to reimburse property tax payments. Since constitutional challenges must be demonstrated “beyond a reasonable doubt,” the plaintiffs did not provide enough facts to present a claim for relief to be granted.

On the first two claims, the Supreme Court remanded the case to the circuit court for certiorari review, since there is no statutory appeal process for reviewing TID formation.

In their dissent, Justices R. Bradley and Kelly parted with the majority on each of the four claims.

On the plaintiffs’ first and second claims, the dissent said the majority mistakenly characterizes the city’s finding of blight and joint review board’s approval as legislative determinations. The dissent agreed that the city’s authority to create TIDs is a legislative determination, but the preconditions of that authority (e.g. finding of blight) are not, and taxpayers must have a judicial avenue to challenge the accuracy of the city’s findings.

On the third and fourth claims, the dissent disagreed with the majority by arguing that the plaintiffs’ complaints are sufficient under Wisconsin’s notice pleading law (Wis. Stat. § 802.02(1)(a)). However, the dissent noted that TIF cash grants do not act as tax rebates and thus do not violate the Uniformity Clause.

In a long-awaited decision of this term, the U.S. Supreme Court decided the plaintiffs in Gill v. Whitford, the legal challenge to Wisconsin Republicans’ 2010 redistricting map, lack standing to challenge the statewide map. The Court remanded the case to district court, giving the plaintiffs another opportunity to demonstrate concrete injuries to their individual votes. The opinion was unanimous, with Chief Justice Roberts writing the lead opinion, and each justice writing or joining a concurring opinion.

The plaintiffs, all Democratic voters from Wisconsin, argued that the map violated their rights to association and equal protection because it unfairly diminished their chances to achieve a majority and resultant legislative outcomes. The map, they said, unfairly gave Republicans a better chance of “translating their votes into seats.”

In defense, the state of Wisconsin argued the plaintiffs lack standing to challenge the entire map. The Court agreed that plaintiffs can only challenge their own voting districts and thus lacked standing for their statewide gerrymandering claim.

Justice Kagan, joined by Justices Ginsburg, Breyer, and Sotomayor agreed that the plaintiffs did not have standing, and suggested the plaintiffs expand on the theory that the redistricting infringed upon their First Amendment rights of association. Kagan also suggested if enough plaintiffs allege the map diluted their votes in their individual districts, the aggregate claims could force the statewide map to be redrawn.

Justice Thomas, joined by Justice Gorsuch, agreed the plaintiffs lacked standing, but did not agree with the Court’s decision to remand the case to district court because remanding is not the standard practice of the Supreme Court in such cases.

In a 4-3 decision, the Court held that an outdoor advertising company is not entitled to compensation from the City of Madison after the City constructed a bridge blocking visibility of a billboard. Justice Walsh Bradley wrote the decision, joined by Justices Abrahamson, Gableman, and Ziegler.

The City of Madison constructed a pedestrian bridge that blocked visibility from the Beltline Highway of the west-facing side of Adams Outdoor Advertising’s billboard. The billboard is nonconforming to a Madison City Ordinance stating that new outdoor advertising signs are prohibited, so Adams may keep but not modify the billboard.

Adams argued they were entitled to just compensation for private property taken for public use, under the Fifth Amendment of the U.S. Constitution and Art. 1 § 3 of the Wisconsin Constitution. According to Adams, the property interest in this case is the right to the legal nonconforming use of its property, which was taken when the bridge diminished the property’s sole use – visibility. The Court said that Adams still retains the right to legal nonconforming use of the billboard, despite the bridge placement, because the City did not physically alter Adams’ property.

The Court agreed with the City that the property interest in this case is Adams’ right to visibility of his property from a public road, which is not a recognized property right. Thus, a property interest does not exist for the purpose of just compensation under the U.S. and Wisconsin Constitutions. Since Adams failed to demonstrate a recognized property interest, the Court affirmed the summary judgement in favor of the City of Madison.

Justices R. Bradley, Kelly, and Chief Justice Roggensack dissented, writing that an unconstitutional taking occurs when government denies all economically viable use of a person’s property. In contrast to the majority, the dissent defined the property interest as the billboard permit. The dissent determined that the value of the property was in the permit for nonconforming use and the visibility of the billboard for advertisers wishing to rent space. Because the bridge eliminated the entire value of the permit for the west-facing side of the billboard, the bridge construction was a compensable taking.

The U.S. Supreme Court issued a decision this week in Epic Systems Corp. v. Lewis, holding that individualized arbitration contracts between employers and employees that waive class actions are enforceable under the Federal Arbitration Act.

Previously, courts and the National Labor Relations Board have held that individualized arbitration agreements are enforceable. However, a 2012 NLRB decision ruled otherwise, and subsequent executive and solicitor general opinions have been conflicting. The SCOTUS decision clarifies the legal uncertainty for employers in these cases.

The Court combined the Epic case with two similar disputes: Ernst & Young LLP et al. v. Morris et al. and National Labor Relations Board v. Murphy Oil USA, Inc., et al. In each of the cases, the employers and employees entered into contracts requiring individualized arbitration proceedings for employment disputes. However, the employees sought to litigate claims in class actions.

The plaintiffs in this case argued that the contracts were invalid because the “saving clause” of the Federal Arbitration Act says that arbitration agreements need not be enforced if they violate another federal law. The plaintiffs held that their contracts violated the National Labor Relations Act’s (NLRA) provision that ensures employees the right to “concerted activities.” Further, they argued the Court should give Chevron deference to the NLRB’s recent decision that employees have a right to class actions outside of the enforceability of arbitration agreements. Chevron deference is a judicially created doctrine that requires courts to defer automatically to agency interpretations of statutes.

The Court ruled in favor of the employers, holding that, since NLRA focuses on collective bargaining and there is no clear reference to employees’ rights to class actions, NLRA does not displace the Federal Arbitration Act. The opinion, written by Justice Neil Gorsuch, emphasizes that under constitutional separation of powers, courts should not pick and choose between statutes when there is no overwhelming congressional intention implying the statutes are not harmonious.

The Court also held that Chevron deference to agencies does not apply here because Congress has statutorily given NLRB authority to administer the NLRA but not the Federal Arbitration Act. Furthermore, Chevron deference is due only when traditional tools for statutory construction leave ambiguity. The Court held that the statutes are clear enough in this case to dismiss Chevron deference to NLRA.

In a concurring opinion, Justice Clarence Thomas added that, under the Federal Arbitration Act’s “saving clause,” courts may revoke contracts under the grounds of improper formation but cannot refuse to enforce contracts for public policy reasons. The concurring opinion states the contracts in this case were not formed improperly, so they must be enforced.

In her dissent, Justice Ruth Bader Ginsburg argues that collective proceedings do fall under the scope of the “concerted activities” provision of the NLRA and that the NLRA’s specificity prevails over the more general Federal Arbitration Act. The dissent argues that employees should always have the right to address disputes with their employers collectively instead of on an individual basis.