Democratic plaintiffs in Gill v. Whitford, the legal challenge to Wisconsin Republicans’ 2010 redistricting map, have refiled their case in district court. A three-judge panel (Chief U.S. District Judge James Peterson, appointed by President Barack Obama; 7th Circuit U.S. Court of Appeals Judge Kenneth Ripple, appointed by President Ronald Reagan; and U.S. District Judge William Griesbach, appointed by George W. Bush) will hear the case, which has been renewed with additional plaintiffs and refreshed arguments.

In June, the U.S. Supreme Court decided the plaintiffs lacked 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.

In their U.S. Supreme Court arguments, 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.

To address the standing issue, Democrats added 28 plaintiffs from districts statewide. Their renewed argument is that what they characterize as a gerrymandered map dilutes their votes in their individual districts. Their aggregate claims could force the map to be redrawn.

Wisconsin’s Assembly Democrats have also filed a lawsuit arguing the redistricting infringed upon their First Amendment rights of association. They are seeking to consolidate their case with Gill v. Whitford.

Earlier this year, Wisconsin Attorney General Brad Schimel and Texas Attorney General Ken Paxton, along with 18 other states, filed a brief in support of preliminary injunction in federal district court against the federal government’s enforcement of the individual mandate of the Affordable Care Act (ACA). A judge from the Northern District of Texas court heard oral arguments in the case last week to decide whether to grant the injunction that would suspend the individual mandate until the case is decided.

Congress repealed the tax penalty, yet left in place the ACA’s individual mandate, in the federal tax reform bill in December 2017. The attorneys general argue that the remaining mandate, without the tax penalty, violates the Commerce Clause of the U.S. Constitution, and Congress does not have the constitutional authority to compel citizens to purchase health insurance.

Wisconsin and Texas, along with four other states, are involved in simultaneous ACA litigation in the same Texas court, contesting imposition of a Health Insurance Providers Fee (HIPF) on Medicaid managed care contracts. A ruling this week agreed with the state attorneys general that the ACA exempted states from paying the HIPF and ordered refunds to the states for payments made in 2014 to 2016. Wisconsin would receive a refund of $88.9 million, so long as the ruling is not appealed.

The U.S. Department of Justice (U.S. DOJ) announced this week it will not defend the constitutionality of the Affordable Care Act (ACA) in Texas v. United States. In a letter to Speaker Paul Ryan, U.S. DOJ said it will side with plaintiffs Wisconsin Attorney General Brad Schimel and Texas Attorney General Ken Paxton, along with 18 other states. The state attorneys general filed the brief in support of a preliminary injunction in federal district court against the federal government’s enforcement of the individual mandate of the ACA.

Congress repealed the tax penalty, yet left in place the ACA’s individual mandate, in the federal tax reform bill in December 2017. The attorneys’ general brief argues that the remaining mandate, without the tax penalty, violates the Commerce Clause of the U.S. Constitution, and Congress does not have the constitutional authority to compel citizens to purchase health insurance. The attorneys general argue further that the individual mandate makes it difficult for states to take individual actions, like Wisconsin’s reinsurance program, to regulate the insurance market.

The attorneys general brief asks the federal district court to enjoin the ACA effective Jan. 1, 2019 – the date the tax reform will officially eliminate the individual mandate. The brief comes after a February brief asking the court to rule the ACA unconstitutional and enjoin the operation of the entire law.

Earlier this month, several U.S. Senators introduced a bill that would require disclosure of third party litigation financing in class action lawsuits. The introduction of the U.S. Senate bill comes after Wisconsin enacted groundbreaking reforms in Act 235 to require notice of third party litigation financing at the state level.

The Litigation Funding Transparency Act, by Sens. Chuck Grassley (R-Iowa), John Cornyn (R-Texas), and Thom Tillis (R-North Carolina), would require disclosure within 10 days of any agreements for commercial enterprises to receive payments contingent upon the monetary outcome of an action. The bill aims to provide transparency of such third party litigation financing arrangements that can increase the cost of litigation and cause suits to be brought that would not otherwise have been financially justified.

This week, Gov. Scott Walker signed Act 235, which contains a number of important civil litigation reforms, including discovery and class action rules. This major legislation will significantly reduce the cost of litigation for Wisconsin businesses.

Common-sense reforms under Act 235 will:

• Prevent litigants from abusing the discovery process to leverage a higher potential settlement or engage in a “fishing expedition.”
• Allow parties to appeal a trial court’s decision to certify a class in a class action lawsuit.
• Lower the statute of limitations for a number of claims.
• Prohibit the Department of Revenue from entering into a contract that includes contingency fee audits for any company domiciled in the state or that maintains its principal place of business in the state. Working under contingency fee arrangements incentivizes aggressive approaches to audits that unfairly increase costs for businesses in Wisconsin.
• Require notice of third-party litigation financing. Such third-party finance can increase the cost of litigation and cause suits to be brought that would not otherwise have been financially justified. Act 235 was recognized by the National Law Journal as being ‘groundbreaking’ legislation, noting that Wisconsin is the first state in the country to pass this provision.

“Act 235 is a major victory for small to large Wisconsin businesses and will greatly reduce the cost of litigation. The legislation brings Wisconsin in line with the vast majority of other states when it comes to its discovery procedures and class action rules. WCJC thanks Gov. Walker and the bill authors, Sens. Tom Tiffany and Dave Craig and Reps. Mark Born and John Nygren,” said Bill G. Smith, president of the Wisconsin Civil Justice Council and state director for National Federation of Independent Business-Wisconsin.

For more information on Act 235, please visit the Wisconsin Civil Justice Council website.