Category: Court Watch

Supreme Court Justice Annette Ziegler Announces “Likely” Run for Second Term

Posted on by Hamilton

Wisconsin Supreme Court Justice Annette Ziegler announced she will “likely” run for re-election in April 2017. The conservative justice already claims endorsements of 48 sheriffs and 30 district attorneys.

Among others, her steering committee will include former Gov. Tommy Thompson, former Lt. Gov. Margaret Farrow, and former Wisconsin Supreme Court Justice John Wilcox. Her Sept. 20 preannouncement states that her formal announcement will be made later this year. She has over $200,000 cash in hand in her campaign account.

With Gov. Walker’s July 22 appointment of attorney Daniel Kelly, the Wisconsin Supreme Court has a 5-2 conservative majority. Justice Kelly is serving out the remaining term of former Justice David Prosser who resigned earlier this year. Kelly will face re-election in 2020. Conservative Justice Michael Gableman is next up after Ziegler, with his term expiring in 2018.

Former Chief Justice Shirley Abrahamson, initially appointed in 1976 by Gov. Pat Lucy, has her latest 10-year term ending in 2019.

Walker Appoints Daniel Kelly to Wisconsin Supreme Court

Posted on by Hamilton

On Friday, July 22, Gov. Walker appointed attorney Daniel Kelly to the Wisconsin Supreme Court to replace retiring Justice David Prosser. Gov. Walker selected Kelly over the two other finalists, appeals court judges Thomas Hruz and Mark Gundrum.

Kelly is a founding partner and commercial litigator at the Milwaukee law firm Rogahn Kelly. Before starting the firm, Kelly worked for 15 years as a lawyer at the firm Reinhart Boerner Van Duren.

The Waukesha attorney has litigated cases before the U. S. Court of Appeals for the 7th Circuit in Chicago, the Wisconsin Supreme Court and the U. S. Supreme Court. Like outgoing Justice David Prosser and Justice Shirley Abrahamson, Kelly comes to the high court without any previous judicial experience.

In his career, Kelly served on the legal team that defended the 2010 Republican-drawn legislative maps before a panel of federal judges. Kelly has also served as an attorney to Justice David Prosser’s campaign during a 2011 recount after a close election against opponent Joanne Kloppenburg. Most recently, Kelly served as an advisor to Justice Rebecca Bradley’s 2016 campaign.

Kelly currently serves as President of the Milwaukee chapter of the Federalist Society and on the litigation advisory board for the Wisconsin Institute for Law and Liberty. Additionally, Kelly is on the state’s advisory board to the U. S. Commission on Civil Rights.

Many insiders view this as a legacy pick for Gov. Walker. Daniel Kelly will hold the seat until he is up for election in April 2020 and could potentially sit on Wisconsin’s high court for decades. The next Wisconsin Supreme Court justice up for re-election is Annette Ziegler in 2017. Justices Michael Gableman and Shirley Abrahamson follow in 2018 and 2019, respectively.

Prosser, who announced his retirement in early May, has served on the court since 1998 after being appointed by Gov. Tommy Thompson. Prosser then went on to win re-election in 2001 and 2011. He also served in the Assembly from 1979 to 1997 and spent two years as Speaker. Prosser’s last day on the bench will be July 31.

Supreme Court Finalists Narrowed to Three

Posted on by Hamilton

After the second round of interviews in late June, Gov. Scott Walker announced the final three contenders for the Supreme Court appointment. The three finalists include: Appeals Court judges Mark Gundrum, Thomas Hruz and attorney Daniel Kelly.

Judge Mark Gundrum was appointed by Walker in 2011 to the Wisconsin District II Court of Appeals. Prior to his appointment, Gundrum served as Waukesha circuit court judge from 2010 to 2011 and was a state representative from 1998 to 2010. Daniel Kelly is an attorney at Milwaukee law firm Rogahn Kelly and served on Justice Rebecca Bradley’s campaign. Judge Thomas Hruz was appointed by Walker in 2014 to the Wisconsin District III Court of Appeals. Before his appointment, he was an attorney at Meissner Tierney Fisher & Nichols in Milwaukee.

The three finalists are vying to replace outgoing Justice David Prosser, who is retiring at the end of July. Gov. Walker has stated he hopes to have a replacement selected by this time. The applicant selected by Walker will hold the seat until the April 2020 election. Many consider this to be a legacy appointment by Walker considering a younger selection may sit on the state’s highest bench for over three decades.

Applicant Field for Supreme Court Vacancy Narrowed

Posted on by Hamilton

Gov. Scott Walker narrowed the field of Supreme Court applicants from 11 to five after the first round of interviews took place on June 13. The five finalists include: Appeals Court judges Mark Gundrum and Thomas Hruz, Jefferson County Judge Randy Koschnick, Marinette County Judge James Morrison, and attorney Daniel Kelly.

Milwaukee area attorney Daniel Kelly previously requested his name be kept confidential until the list of finalists was released.

Those who did not make it to the second round of interviews include: Appeals Court Judge Brian Hagedorn, Public Service Commission Chair Ellen Nowak, attorney Claude Coveli and former Dane County Judge Jim Troupis.

The five finalists are vying to replace retiring Justice David Prosser, whose last day on the bench will be July 31. Gov. Walker has stated he hopes to have a replacement selected by this time. The applicant selected by Walker will hold the seat until it opens for an April 2020 election. Many consider this to be a legacy appointment by Walker considering some of the younger applicants may sit on the state’s highest bench for over three decades.

The finalists are:

  • Judge Mark Gundrum, Wisconsin District II Court of Appeals, appointed by Walker in 2011. Served as Waukesha circuit court judge from 2010 to 2011 and was a state representative from 1998 to 2010.
  • Attorney Daniel Kelly from Milwaukee, served on Justice Rebecca Bradley’s campaign.
  • Judge Thomas Hruz, Wisconsin District III Court of Appeals, appointed by Walker in 2014.
  • Judge Randy Koschnick, Jefferson County Circuit Court. Koschnick served as a public defender prior to his election to the Jefferson County Circuit Court, and ran against Wisconsin Supreme Court Justice Shirley Abrahamson in 2009.
  • Judge James Morrison, Branch 2 of the Marinette County Circuit Court, appointed by Walker in 2012.

AG Opinion Validates Act 21 Limits on Agency Authority

Posted on by Hamilton

On May 10, 2016, Attorney General Brad Schimel issued a formal opinion finding that 2011 WI Act 21requires explicit delegation of authorities to agencies, making it clear that regulatory mandates may no longer arise from implied authority.

Whether enacting rules, imposing permit conditions, or exercising public trust authority, the Department of Natural Resources (DNR) and other agencies must point to explicit statutory delegations or their actions are legally void and unenforceable.

Key excerpts from the 23-page opinion include:

  • “Act 21 makes clear that permit conditions and rulemaking may no longer be premised on implied agency authority.”[1]
  • Given the lack of explicit authority in the statutes, “a monitoring well condition on a high capacity well permit is prohibited and unenforceable.”[2] Similarly, DNR lacks authority to require cumulative impact analysis as a well permit condition.
  • “[M]uch of the [Wisconsin Supreme] Court’s reasoning in Lake Beulah, including the breadth of the DNR’s public trust authority. . . , is no longer controlling.”[3]

The AG Opinion is significant, but also is consistent with prior positions taken by the AG’s Office, DNR, and by the court in the New Chester case[4]. One issue clarified by Schimel was that a key Act 21 provision, Wis. Stat. § 227.10 (2m), is not retroactive. Act 21’s effective date is June 8, 2011. Thus, any standard, requirement, or threshold, including permit terms, issued on or after June 8, 2011, must be tethered to explicit statutory or rule language. And draft rules submitted to the Legislative Council (before the public hearing) on or after that date must also arise from explicit statutory authority.

Hamilton Consulting represented several clients in advancing Act 21. Through the Great Lakes Legal Foundation, some of us were attorneys of record for business associations on the leading cases, including Lake Beulah[5], Rock-Koshkonong Lake Dist.[6], and New Chester.

For more on this issue, consider WMC’s June 22 Symposium: Act 21: The Demise of Implied Agency Authority.

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[1] OAG-01-16 (May 10, 2016), p. 15, ¶29.

[2]Id. p. 22, ¶50.

[3] Id. P. 8, ¶16

[4] New Chester Dairy v. DNR, No. 14CV1055 (Wis. Cir. Ct. Outagamie Cty. Dec. 2, 2015).

[5] Lake Beulah Management District v. Department of Natural Resources, 2011 WI 54, 3355 Wis. 2d. 47 (2011).

[6] Rock-Koshkonong Lake Dist. V. DNR, 2013 WI 74, 350 Wis. 2d 45 (2013)

Supreme Court Upholds Independence of State Superintendent of Public Instruction

Posted on by Hamilton

In a split opinion, the Wisconsin Supreme Court upheld lower court decisions that 2011 Wisconsin Act 21 (Act 21) is unconstitutional as applied to the Superintendent of Public Instruction (SPI) and the Department of Public Instruction (DPI).

Act 21 amended various provisions in the statutes that set forth procedures agencies must follow when promulgating administrative rules. The provisions the court found problematic related to the governor’s ability to withhold approval of SPI and DPI rules.

The May 18 decision was written by Justice Michael J. Gableman and rests on the constitutional provision that gives supervisory powers to the Superintendent of Public Instruction and other officers of public instruction. According to the opinion, “Act 21 does not allow SPI and DPI to proceed with their duties of supervision without the Governor’s, and in some circumstances the Secretary of the Administration’s approval [which] unconstitutionally vests the Governor. and the Secretary of Administration with the supervision of public instruction in violation of the [Constitution].”

Chief Justice Pat Roggensack wrote the dissent, joined by justices Annette Ziegler and Rebecca Bradley. The dissenting justices found that Act 21 provided constitutional procedural safeguards to be employed in rulemaking by DPI and other administrative agencies. Ziegler wrote a separate dissenting opinion. Justices David Prosser and Shirley Abrahamson wrote separate concurring opinions.

Given the numerous separate opinions, some believe the decision has little precedential value. Regardless, the opinion only affects Act 21 as it relates to SPI and DPI. Act 21 provisions relating to gubernatorial approval and the requirement that agency regulatory authorities be “explicitly” set forth in the statutes are not affected as they relate to all other agencies. (See article on AG’s opinion on Act 21 and DNR)

Court of Appeals Puts a Hold on Dane County Right to Work Decision

Posted on by Hamilton

On May 24, a state court of appeals reversed Dane County Circuit Judge William Faust’s ruling not to grant a stay of his controversial decision that the state’s new right-to-work law was unconstitutional. The appeals court decision allows the right-to-work law to be in effect and enforceable pending appeal of Faust’s underlying decision.

Wisconsin became the 25th right to work state last year. Right-to-work laws bar businesses and unions from reaching labor agreements that force workers to pay fees to the union. Various state unions challenged the constitutionality of the law.

On April 15, 2016, Faust granted the unions’ request for summary judgment, concluding that the right-to-work law effects an unconstitutional taking of private property of Wisconsin’s labor organizations. As a result, the Dane County court enjoined the state and the attorney general from enforcing the statute.

The decision by the Wisconsin Court of Appeals District 3, based in Wausau, does not directly go to the merits of the case. But presiding judge Lisa K. Stark rested her decision on the finding that the law was presumed constitutional and that the state established “there is sufficient likelihood of success on appeal to warrant the grant of the stay.”

Attorney General Brad Schimel had initially requested Faust stay his own decision during the pendency of the appeal. Faust refused to do that, which moved that request to the court of appeal. The attorney general filed a memorandum in support of the stay on April 29, 2016. Wisconsin Manufacturers and Commerce (WMC) and the National Federation of Independent Business Small Business Legal Center also filed briefs in support of the state.

The bulk of the attorney general’s brief focuses on his argument that the state is “extremely likely to succeed on the merits.” Schimel issued a May 24 press release lauding the Court of Appeals decision and expressing his confidence “the law will ultimately be found constitutional.” WMC also issued a press release praising the decision.

11 Applicants Vie for Open Wisconsin Supreme Court Seat

Posted on by Hamilton

Eleven applications have been submitted to Gov. Scott Walker to replace Wisconsin Supreme Court Justice Prosser, who announced his retirement in early May. The seat opens on July 31 after Prosser’s resignation takes effect.

The applicant selected by Walker will hold the seat until it opens for an April 2020 election. Many consider this to be a legacy appointment by Walker considering some of the younger applicants may sit on the state’s highest bench for over three decades.

Notable applicants of interest to those in the lobbying business include:

  • Judge Mark Gundrum, Wisconsin District II Court of Appeals, appointed by Walker in 2011. Served as Waukesha circuit court judge from 2010 to 2011 and was a state representative from 1998 to 2010.
  • Judge Brian Hagedorn, District II Court of Appeals, appointed by Walker in July 2015. Also served as chief legal counsel for the governor and was an assistant attorney general at the Wisconsin Department of Justice.
  • Public Service Commission Chairperson Ellen Nowak, appointed by Walker in 2011. Also previously served as chief of staff to Waukesha County Executive Dan Vrakas and legal counsel and chief of staff to the Speaker of the Assembly.

Other applicants include:

  • Attorney Andrew Brown of River Falls.
  • Attorney Claude Covelli of Madison, a former candidate for Wisconsin Supreme Court in 2015.
  • Judge Thomas Hruz, Wisconsin District III Court of Appeals, appointed by Walker in 2014.
  • Judge Randy Koschnick, Jefferson County Circuit Court. Koschnick served as a public defender prior to his election to the Jefferson County Circuit Court, and ran against Wisconsin Supreme Court Justice Shirley Abrahamson in 2009.
  • Judge James Morrison, Marinette County Circuit Court.
  • Attorney Paul Scoptur of Milwaukee.
  • Judge James Troupis, Dane County Circuit Court, appointed by Walker in May 2015. Also served as Prosser’s legal counsel during the 2011 election recount.

The eleventh candidate requested confidentiality.

New Vacancy on State Supreme Court

Posted on by Hamilton

Wisconsin Supreme Court Justice David T. Prosser Jr. has announced he will retire from the highest court in Wisconsin later this summer with four years left in his term.

In his letter of resignation Justice Prosser said, “Public service was the career I chose at an early age. The goal has been fulfilled… For me, the time has come to step down, pass the torch, and begin a new chapter in my life.”

Gov. Scott Walker will accept applications for an appointment to fill the seat through mid-May, and the appointee will hold the seat until elections are held in April 2020.

Justice Prosser was appointed to the Wisconsin Supreme Court in 1998 by Gov. Tommy Thompson and then won reelection in 2001 and 2011. Prior to serving on the Wisconsin Supreme Court, Justice Prosser was an appointee during the Thompson administration. He also served in the Assembly from 1979 to 1997 and spent two years as speaker.

Since the application process for the appointment was announced, the following have reported their intention to apply for the appointment:

Judge Mark Gundrum previously served as circuit court judge for Waukesha County before being appointed to his current positon to the District 2 Court of Appeals in 2011. Gundrum also served in the Wisconsin State Assembly as a Republican.

Judge Randy Koschnick currently serves on the Jefferson County Circuit Court. He has been a judge in Wisconsin for 17 years. He ran for the Wisconsin Supreme Court in 2009 and lost to Justice Shirley Abrahamson.

Judge Jim Troupis was appointed by Gov. Walker to the Dane County Circuit Court in May 2015. Judge Troupis also served as Justice Prosser’s legal counsel during the 2011 election recount.

Whitford v. Nichol — How much partisan bias is too much?

Posted on by Hamilton

Last Thursday, April 7, a three judge panel ruled that a group of voter’s challenge to Wisconsin’s 2012 redistricting map can head to trial.

The Wisconsin Department of Justice had filed a motion for summary judgment on behalf of the defendants in the case. The Court ruled that deciding the case, as a matter of law “would be premature because there are factual disputes regarding the validity of plaintiffs’ proposed measurement for determining the existence of a constitutional violation.” Therefore, the case will move forward toward trial.

The plaintiffs argue that the Wisconsin legislature unconstitutionally redistricted, or gerrymandered, in the latest decennial redistricting according to political affiliation. The Supreme Court precedent regarding analyzing redistricting by partisan affiliation is muddled at best.

In Davis v. Bandemer the Supreme Court ruled that partisan gerrymandering claims are justiciable and the standard for the claim is proving discriminatory intent and a discriminatory effect under the Equal Protection Clause (14th Amendment). However, in Vieth v. Jubelirer a plurality of the Court stated that partisan gerrymanders are political questions and therefore cannot be answered by the federal courts. However, another plurality of the Court stated partisan gerrymandering was a justiciable issue (and therefore could be answered) and the standard in Bandemer should be followed. Justice Kennedy, straddled the center ground writing that the issue was justiciable but that the standard in Bandemer was not workable. The final case on this issue is League of United Latin American Citizens v. Perry, where the Court assumed the case was justiciable, but concluded that there was not a manageable standard for determining whether a partisan gerrymander violates the Constitution. Thus it has been left to lower courts to create a workable standard.

In their briefs to the Court the plaintiffs propose a standard for the Court to apply to measure partisan bias in legislative maps through a standard called an “efficiency gap.” An efficiency gap measure analyzes to what extent a legislative district has been drawn to favor a party by measuring “wasted” votes (more votes than were needed to win the district) compared to the total amount of votes cast. Specifically the test involves three steps: (1) State acted with discriminatory intent; (2) discriminatory effect shown through the efficiency gap; and (3) if elements one and two are shown, then the burden shifts to the defendants who must show the discrimination was unavoidable due to the nature of political geography and “legitimate” redistricting objectives.

The State argues the Court should grant their summary judgment motion because the plaintiffs’ measure of discriminatory effect, the efficiency gap, is not a good measure of unconstitutional partisan discrimination. The State proffers multiple reasons for this including that even neutrally drawn maps can have large efficiency gaps, and that political geography favors Republican candidates as democratic voters live in densely populated urban areas.

The Court ultimately stated the State did not meet its burden, to show there is no question of material fact to try. Therefore the case will go to trial. The three judge panel was made up of Circuit Court Judge Kenneth Ripple (President Reagan appointee), District Judge Barbara Crabb (President Carter appointee) and District Judge William Griesbach (President George W. Bush appointee).