Next Tuesday, voters will decide which two judicial candidates to the Supreme Court of Wisconsin will advance to the general primary held on April 3, 2018. The three candidates are Madison attorney Tim Burns, Milwaukee County Circuit Court Judge Rebecca Dallet, and Sauk County Circuit Court Judge Michael Screnock. The seat is currently held by Justice Michael Gableman, who is not seeking re-election.

Although Supreme Court races are officially nonpartisan, Burns and Dallet are seen as the two liberal candidates, while Screnock is considered the conservative. Because turnout for spring elections are typically very low, usually those who do show up to vote are partisans and very few swing voters. Because of that, some expect Dallet and Burns to be battling for the liberal votes, while most expect Screnock to get enough conservative votes to put him into the general election. Yet, with such a low turnout, many election experts say anything can happen, especially if the anti-Trump voters show up in full force next Tuesday.

Below are the campaign websites for all three candidates:

Tim Burns

Judge Rebecca Dallet

Judge Michael Screnock

Last week, the Wisconsin Civil Justice Council (WCJC) filed an amicus brief with the Supreme Court of Wisconsin in Ascaris Mayo v. Wis. Injured Patients and Families Compensation Fund. WCJC supports the patients’ compensation fund position on the validity of the $750,000 cap on noneconomic damages arising out of medical malpractice claims. The brief asked that the court grant the fund’s request for review.

In a July 5 opinion, the Wisconsin Court of Appeals, District 1 (Milwaukee County), found the statutory $750,000 cap unconstitutional. The court found the cap was “an unfair and illogical burden only on catastrophically injured patients, thus denying them equal protection of the law.”

The WCJC brief sets forth the parties’ interest in the case, focusing on the appropriate standard for courts considering reversal of legislative enactments. Since Ferdon v. Wis. Patient Comp. Fund, the courts have been unclear regarding the “rational basis” test as it relates to an equal protection claim. WCJC’s brief asks the Supreme Court to draw a clear line to make damages more predictable.

The case arose from a septic infection resulting in the amputation of the plaintiff’s limbs. The lower court did not find negligence, but instead rested liability on improper informed consent regarding diagnosis and treatment options. The jury awarded the plaintiff $15 million in noneconomic damages, such as pain and suffering, and $1.5 million to the plaintiff’s husband for loss of society and companionship. Unaffected is the reported $8.8 million award for economic damages, which has no statutory limitation.

Joining WCJC on the brief was the American Tort Reform Association and the National Federation of Independent Businesses.

This week, Great Lakes Legal Foundation (GLLF) filed an amicus brief with the Wisconsin Supreme Court in Tetra Tech Inc. v. Wisconsin Department of Revenue (DOR). The brief was filed on behalf of 11 Wisconsin associations, including Wisconsin Manufacturers and Commerce and Associated Builders and Contractors, Wisconsin Chapter.

The Supreme Court specifically requested parties brief the constitutionality of courts providing deference to agencies on questions of law. GLLF’s amicus brief argues that Wisconsin courts afford regulatory agencies too much deference to interpret statues that define agencies’ own power and reach. Under the Wisconsin and federal constitution, it is exclusively the duty of judges, not unelected agency officials, to say what the law is. When courts grant deference to an agency’s interpretation of the law, the predisposed bias of agencies poses unconstitutional, systematic disadvantage to the other party in the dispute.

In 2007, the Environmental Protection Agency (EPA) required several paper companies to remediate the environmental impact of harmful chemicals into the Fox River. The collective group of paper companies formed Fox River Remediation, which hired Tetra Tech to perform the remediation. Tetra Tech subsequently hired Stuyvesant Dredging, Inc. (SDI) as a subcontractor. DOR audited the entities and found that Tetra Tech owed sales tax on the portion of its sale for services to Fox River Remediation on SDI’s activities, and Fox River Remediation owed use tax on the purchase of remediation services from Tetra Tech on SDI’s activities. The entities filed petitions for redetermination with DOR, then with the Tax Appeals Commission. A Wisconsin circuit court, then appeals court upheld the commission’s ruling, giving great weight deference to DOR’s interpretation of tax statutes. The case is now being appealed again at the Wisconsin Supreme Court.

On June 19, the U.S. Supreme Court announced it will review the legal challenge to the Republicans’ redistricting map. By 5-4 vote, the Supreme Court also granted Attorney General Brad Schimel’s request to stay the lower court’s order requiring a timely redrawing of the Assembly district map.

The redistricting case, Gill v. Whitford, was brought by Democratic voters against officials of the Wisconsin Elections Commission. Last November, a panel of two federal district court judges in the U.S. Court of Appeals held 2-1 in a 159-page decision that the state assembly boundaries, drawn by Republicans in 2011, constituted partisan gerrymandering that was “intended to burden the representational rights of Democratic voters … by impeding their ability to translate their votes into legislative seats.” The court ordered the Wisconsin Legislature to timely enact a constitutional district plan for the Assembly districts or face having the court redraw the map.

The case is expected to have national implications, possibly setting a new standard for courts when determining whether a redistricting plan is constitutional if based on party affiliation of voters. The hearing on the case is expected to be scheduled for oral argument early in the term starting in October 2017.

Last week, the Wisconsin Supreme Court rejected a petition to change its recusal rules. The proposal, submitted in January by 54 retired judges and justices, would have required judges and justices to recuse themselves if they received donations past a certain contribution threshold from litigants or attorneys in a case. Under the petition, the threshold would be $1,000 or more donated to circuit court judges, $2,500 to appeals judges and $10,000 to Supreme Court judges.

The Court rejected the petition 5-2, with only justices Ann Walsh Bradley and Shirley Abrahamson voting for the restrictions. Bradley and Abrahamson argued that recusal rules are necessary to ensure that judges act impartially.

Justices Bradley and Abrahamson had also submitted motions to hold a public hearing on the petition, but conservatives on the Court voted down the motion. More than 75 people and groups across Wisconsin submitted comments both in favor of and against the petition.

The justices who rejected the petition said that judges should be able to decide for themselves whether they should step off a case. A letter from 11 retired judges also affirmed that judicial campaign contributions are an exercise of free speech rights, and recusal rules would lead to gamesmanship and deter voters from participating in future elections.

The Court voted on current rules regarding campaign contributions in 2010, establishing in a 4-3 vote that election spending cannot force a judge off a case.