Category: Legislation

Legislature to Intervene in Act 21 Cases

Posted on by Hamilton

The Legislature’s Joint Committee on Legislative Organization has voted to intervene in two cases addressing the application of 2011 Act 21. The 2011 legislation clarified that agencies may not enforce requirements unless explicitly permitted by statute or properly promulgated rule. The two cases, both titled Clean Wisconsin, Inc. v. DNR, would clarify the general scope of Act 21 in environmental cases.

One case (appeal no. 2018AP59) will decide whether Act 21 precludes the Department of Natural Resources (DNR) from considering cumulative environmental impacts in issuing high capacity well permits under Wis. Stat. § 281.34. DNR argues that Act 21 prevents the agency from considering environmental impacts not specifically noted in the statutes. DNR’s argument relies on a May 2016 formal opinion from former Attorney General Brad Schimel.

Clean Wisconsin argues that the 2011 Supreme Court decision Lake Beulah Management District v. DNR still holds. Lake Beulah broadly held that DNR has the authority to preserve waters of the state under the constitutional and statutory public trust doctrines. Since the Supreme Court decided Lake Beulah after the enactment of Act 21 but declined to address the Act’s bearing on the case, a decision in the Clean Wisconsin case would clarify DNR’s authority on high capacity well permits.

The second case (consolidated appeal nos. 2016AP1688 and 2016AP2502) will decide whether DNR has the authority to impose off-site groundwater monitoring requirements and an animal maximum for CAFO wastewater permits. In this case, Clean Wisconsin argues that a Wisconsin Pollution Discharge Elimination System permit allowing the expansion of Kinnard Farms CAFO in Kewaunee County should have included these restrictions. DNR argues Act 21 prohibits DNR from imposing the permit conditions because the statutes do not grant the agency explicit authority.

The Supreme Court accepted both Clean Wisconsin appeals on April 9 and stated it will hear oral arguments on the cases on the same date (not yet scheduled). Several business groups are participating as amici curiae and intervenors in the cases.

Previously, the Department of Justice (DOJ) sided with DNR in both cases. However, this week Attorney General Josh Kaul filed two motions seeking to change DOJ’s position on the cases.

Assembly Committee Passes Bill Allowing DAs to Engage in Private Civil Suits

Posted on by Hamilton

Last week, the Assembly Judiciary Committee voted 8-1 to recommend passage of AB 25, which would allow district attorneys to engage in the private practice of law for certain civil purposes.

Current Wisconsin law explicitly prohibits a full-time district attorney, deputy district attorney, or assistant district attorney from engaging in the private practice of law. AB 25 would reverse current law to allow district attorneys to provide pro bono legal services, defined as including legal services for individuals of “limited means, or for a charitable, religious, civic, community, governmental, or educational organization.”

While AB 25 may be well intentioned, WCJC opposes the bill because it poses several unintended consequences. First, if an attorney is a full-time employee paid by Wisconsin taxpayers, their first and foremost obligation is to work for the taxpayers. Second, allowing a governmental attorney the opportunity to moonlight as a private attorney, even in a pro bono capacity, creates a host of potential conflicts of interest. AB 25 could also lead to situations where district attorneys provide pro bono legal services for interest groups as a means to influence public policy while being subsidized by Wisconsin taxpayers.

The League of Women Voters has also expressed concerns with AB 25, including that the legislation could create the perception of favoritism in Wisconsin’s justice system.

The legislation is supported by the State Bar of Wisconsin. The Wisconsin District Attorneys Association has not taken a position on the bill.

SB 29, the Senate companion to AB 25 is currently in the Senate Committee on Judiciary. No public hearing or vote has been held.

 

 

Abusive Work Environments Cause of Action Legislation Introduced

Posted on by Hamilton

Rep. Sondy Pope (D-Mt. Horeb) has introduced legislation (AB 116) that would create a new cause of action outside of worker’s compensation for abusive work environments.

The bill provides an exception to the exclusive remedy of worker’s compensation when employees allege they have been subjected to an abusive work environment. Employees alleging injury from an abusive work environment may file an action in circuit court. Circuit courts may award prevailing employees relief from the employer including medical expenses, back pay, front pay, compensation for pain and suffering, compensation for emotional distress, punitive damages, and attorney fees.

Under the bill, “abusive conduct” means “conduct, including acts or omissions, by an employer or employee, that a reasonable person would find to be abusive based on the severity, nature, and frequency of the conduct.” “Abusive work environment” means “a work environment in which an employer or one or more of its employees, acting with intent to cause pain or distress to an employee, subjects that employee to abusive conduct that causes physical harm or psychological harm to that employee.”

AB 116 has been referred to the Assembly Committee on Labor & Integrated Employment. In addition to Pope, the bill has 18 Democratic cosponsors – 13 assembly representatives and five senators.

Extraordinary Session Litigation Update

Posted on by Hamilton

Several ongoing cases seeking to void the 2018 extraordinary session legislation are moving through Wisconsin and federal courts. This article provides background on each of the cases and updates on where each of the cases are in the legal process.

League of Women Voters v. Evers

Status

6/21/19: In a 4-3 decision the Wisconsin Supreme Court ruled the Legislature’s 2018 extraordinary session was constitutional, upholding 2017 Acts 368, 369, and 370 and the confirmation of 82 appointments.  

5/15/19: The Wisconsin Supreme Court held oral arguments in League of Women Voters v. Evers. 

4/30/19: In a 4-3 decision, the Wisconsin Supreme Court restored the 82 appointments that Gov. Tony Evers had rescinded under the initial circuit court injunction.

4/15/19: The Wisconsin Supreme Court accepted the League of Women Voters’s petition to bypass the Court of Appeals. The Supreme Court will hold oral arguments on May 15.

4/15/19: Gov. Tony Evers filed a brief in opposition to the Legislature’s motion for emergency temporary relief.

4/10/19: The Legislature has filed a motion asking the Wisconsin Supreme Court to take original jurisdiction over the case or, alternatively, to immediately reinstate the rescinded appointments.

4/9/19: The appeals court denied the Legislature’s motion to enforce the stay, arguing Gov. Tony Evers’s withdrawal of the appointments was valid because the governor had the authority to rescind the appointments while the temporary injunction was in place.

4/3/19: The plaintiff League of Women Voters petitioned the Wisconsin Supreme Court to bypass the Court of Appeals, arguing the case presents novel questions of state constitutional law, and only the Supreme Court can provide a definitive resolution.

4/1/19: Due to the disagreement between Gov. Tony Evers’s administration and the defendant legislature as to whether the appointees who had been rescinded are now reinstated, the legislature filed an expedited motion to enforce the court of appeals stay after the administration prevented appointees from returning to work the day after the court issued the stay.

3/27/19: The Court of Appeals District III has issued a stay of the temporary injunction issued by a Dane County circuit court. The Dane County judge had ordered the injunction of 82 appointments confirmed in the extraordinary session and the extraordinary session laws in their entirety. The appeals court order reasons that the Dane County circuit court failed to evaluate the irreparable harm that could result from enjoining the legislation if it is later found valid. The order stays the temporary injunction and establishes an expedited appeal process with all briefs due by the end of April.

Background

The plaintiffs argue that the extraordinary session was not convened in accordance with the Wisconsin Constitution, which authorizes the legislature to meet only as provided by law or when convened by the governor (Wis. Const. Art. IV, § 11).

The Legislature intervened as a defendant and argues that convening an extraordinary session does not violate the Wisconsin Constitution because the rules for the 2017-18 session prescribed in 2017 Senate Joint Resolution 1 specifically state that any days not reserved for scheduled floorperiods are available for the legislature to convene an extraordinary session. Therefore, the Legislature met as provided by law under the Constitution and Wis. Stat. § 13.02(3).

SEIU v. Vos

Status

10/21/19: The Wisconsin Supreme Court held oral arguments in SIEU v. Vos.

6/11/19: The Wisconsin Supreme Court granted the defendant Legislature’s motion for temporary relief pending appeal by staying the temporary injunction issued by the Dane County Circuit Court. However, the Supreme Court left in place the injunction on Act 369 provisions that would have rescinded improperly promulgated guidance documents on July 1, 2019. Additionally, the Supreme Court stayed proceedings on the case in the lower court, cancelling the trial on guidance document provisions of Act 369 set to begin in Dane County on June 12. Read more. 

4/19/19: The Wisconsin Supreme Court assumed jurisdiction of this case, several weeks after a second Dane County judge issued a temporary injunction preventing enforcement of some extraordinary session legislation provisions requiring legislative approval for the attorney general to discontinue or settle cases, requiring transparency for agency guidance documents, and allowing for more legislative oversight of agency rulemaking, while leaving in place other portions of the laws. The defendant legislature had also appealed this injunction, but the court of appeals had not provided a ruling before the Supreme Court assumed the case.

Whereas the League of Women Voters order enjoined the extraordinary session laws in their entirety, the SEIU circuit court order found the plaintiffs did not establish sufficiently that a court would find other provisions unconstitutional. Specifically, the SEIU circuit court judge left in place provisions

  • Allowing the legislature to intervene and use outside counsel in certain cases.
  • Allowing the Wisconsin Economic Development Corporation to designate an unlimited number of enterprise zones, but requiring approval of the Joint Finance Committee on any new zone.
  • Requiring legislative oversight of agencies applying for federal waivers and seeking to reallocate funds.

Background

The plaintiffs, Service Employees International Union, Wisconsin Federation of Nurses and Health Professionals, American Federation of Teachers-Wisconsin, and Milwaukee Area Service and Hospitality Workers, allege that the extraordinary session laws are an unconstitutional violation of the separation of powers doctrine.

According to the plaintiffs, Article V of the Wisconsin Constitution gives the governor the exclusive power to execute laws. Furthermore, Article V guarantees that one branch may not interfere with another branch’s powers. The plaintiffs allege that extraordinary session provisions, including increased legislative oversight of rulemaking, attorney general lawsuits, and agency appropriations, interfere with the governor’s and attorney general’s constitutional powers. Furthermore, committee oversight without opportunity for a governor veto violates constitutional separation of powers.

The defendant legislature argues that the Wisconsin Constitution explicitly allows the legislature to prescribe the powers of the attorney general. Furthermore, Wisconsin case law has interpreted the Constitution as a fluid rather than rigid political design of separate branches of government.

Democratic Party of Wisconsin v. Vos

Status

The Democratic Party of Wisconsin (DPW) has filed a complaint in the U.S. District Court Western District of Wisconsin seeking to declare the extraordinary session legislation in violation of the U.S. Constitution. Parties are continuing to brief the case, and oral arguments will be held on April 26.

Background

The complaint alleges that the legislation violates the plaintiffs’ First and Fourteenth amendment rights, as well as the Guarantee Clause.

The U.S. Constitution Art. 4 § 4 guarantees states a republican form of government. DPW’s complaint alleges that the Republican legislature violated the Guarantee Clause by removing powers from the incoming Democratic administration to the legislature.

DPW also claims that the extraordinary session violated the plaintiffs’ First Amendment rights to free association and free speech because the state legislature retaliated against Democratic candidates based on their political viewpoints by limiting their ability to enact their policy preferences via the newly elected Democratic Gov. Tony Evers and Attorney General Josh Kaul.

Finally, DPW argues the legislation violates the Fourteenth Amendment’s Equal Protection Clause because it dilutes the power of Democratic votes.

Appeals Court Issues Stay of Injunction on Extraordinary Session Laws

Posted on by Hamilton

The Court of Appeals District III has issued a stay of the temporary injunction in League of Women Voters v. Evers, one of the cases challenging the constitutionality of the 2018 extraordinary session laws. The stay comes after a Dane County circuit court judge ordered the injunction of 82 appointments confirmed in the extraordinary session and the extraordinary session laws in their entirety.

The appeals court order reasons that the Dane County circuit court failed to evaluate the irreparable harm that could result from enjoining the legislation if it is later found valid. The order stays the temporary injunction and establishes an expedited appeal process with all briefs due by the end of April.

Read more about the League of Women Voters case.

Despite the appeals court order reinstating the extraordinary session laws in League of Women Voters, some parts of the extraordinary session laws are still unenforceable after a second Dane County judge issued a temporary injunction in a separate case, SEIU v. Vos. The SEIU injunction prevents enforcement of provisions requiring legislative approval for the attorney general to discontinue or settle cases, requiring transparency for agency guidance documents, and allowing for more legislative oversight of agency rulemaking, while leaving in place other portions of the laws. The defendant Legislature also plans to appeal this injunction, but there has yet to be an appeals court ruling on a stay.

Read more about the SEIU case.

Second Dane County Judge Orders Injunction of Extraordinary Session Legislation

Posted on by Hamilton

Following an injunction ordered by Dane County Judge Richard Niess in the League of Women Voters v. Knudson case against the 2018 Extraordinary Session laws, a second Dane County judge enjoined provisions of the laws this week in SEIU v. Vos.

Judge Frank Remington’s order partially grants the plaintiffs’ motion for temporary injunction. The order prevents enforcement of provisions of the extraordinary session

  • Requiring legislative approval for the attorney general to discontinue or settle cases.
  • Requiring transparency for agency guidance documents.
  • Allowing the legislature’s Joint Committee on Administrative Rules to suspend a rule multiple times.

Whereas the League of Women Voters order enjoined the extraordinary session laws in their entirety, the SEIU order found the plaintiffs did not establish sufficiently that a court would find other provisions unconstitutional. Specifically, the SEIU judge left in place provisions

  • Allowing the legislature to intervene and use outside counsel in certain cases.
  • Allowing the Wisconsin Economic Development Corporation to designate an unlimited number of enterprise zones, but requiring approval of the Joint Finance Committee on any new zone.
  • Requiring legislative oversight of agencies applying for federal waivers and seeking to reallocate funds.

The Legislature plans to appeal the order and has already appealed to the Court of Appeals District III for a stay in League of Women Voters.

Dane County Judge Orders Temporary Injunction of Extraordinary Session Laws

Posted on by Hamilton

On March 21, Dane County Circuit Court Judge Richard Niess issued an order granting a temporary injunction prohibiting the enforcement of laws passed in the 2018 Extraordinary Session. Provisions blocked by the order include limits on the attorney general’s authority to withdraw from or settle certain cases, the legislature’s ability to intervene in certain lawsuits, agency guidance documents transparency requirements, increased legislative oversight of agency rulemaking, and 82 agency appointments.

The plaintiffs in the case, League of Women Voters v. Knudson, argue that the extraordinary session was not convened in accordance with the Wisconsin Constitution, which authorizes the legislature to meet only as provided by law or when convened by the governor (Wis. Const. Art. IV, § 11).

The Legislature intervened as a defendant and argues that convening an extraordinary session does not violate the Wisconsin Constitution because the rules for the 2017-18 session prescribed in 2017 Senate Joint Resolution 1 specifically state that any days not reserved for scheduled floorperiods are available for the legislature to convene an extraordinary session. The Legislature met as provided by law under the Constitution and Wis. Stat. § 13.02(3).

In his order, Judge Niess agreed with the plaintiffs’ argument that non-prescheduled floorperiods in the joint resolutions are not “allowed by law” according to the Constitution because resolutions are not law. The judge stated that temporary injunction is necessary because the plaintiffs are likely to succeed with this argument, enforcement of the extraordinary session legislation would result in “substantial changes to Wisconsin government,” and failure to enjoin the enforcement of unconstitutional laws would be an irreparable harm to the state.

The judge also denied the Legislature’s motion to dismiss the case and its alternative motion to stay the temporary injunction pending appeal.

Immediately following the enjoinment of the extraordinary session laws, Gov. Tony Evers directed Attorney General Josh Kaul to withdraw Wisconsin from the multistate lawsuit seeking to declare the Affordable Care Act unconstitutional. Act 369, now temporarily unenforceable under the court order, had required approval of the legislature before the attorney general could withdraw from the lawsuit. Kaul subsequently filed a motion to withdraw Wisconsin from Texas v. United States.

Evers also rescinded the 82 appointments approved by the Senate in the extraordinary session.

 On March 22, the Legislature filed an emergency motion in the Court of Appeals District III to stay the injunction. The Legislature argues they are exceedingly likely to prevail on the merits on appeal, and a stay will prevent irreparable harm caused by blocking the extraordinary session laws. The appeals court has yet to issue a decision on the stay.

Budget Bill Seeks to Reinsert Anti-Business Qui Tam Law

Posted on by Hamilton

In his proposed 2019-21 state budget, Gov. Tony Evers seeks to reinstate a law repealed in 2015, known as “qui tam,” which allows private individuals to bring lawsuits on the government’s behalf. Evers’s proposal goes even further than Wisconsin’s previous qui tam law by applying the law not only to Medicaid fraud and but to all state agencies. The Wisconsin Civil Justice Council helped repeal the law in 2015 and will work hard to ensure that it is not enacted back into law.

 

Background of Qui Tam in Wisconsin

Qui tam is a Latin term describing a legal action to collect a penalty through supplied information from the public. Under this legal doctrine, a private party called a “relator” may bring a whistleblower lawsuit against a party on the government’s behalf. The relator must first present the information to the government, which can decide to either pursue the case, or deny involvement and allow the plaintiff to bring the case on behalf of the state using a private plaintiff attorney.

In 2007, the Wisconsin Legislature enacted the previous qui tam law, which applied only to Medicaid fraud cases. In 2015, the law was repealed by the Legislature during the budget bill process.

 

Qui Tam Law Reintroduced by Gov. Evers

On February 28, Gov. Tony Evers introduced the 2019-21 budget bill which not only reintroduces the previous qui tam law for Medicaid fraud, but also would expand to the law to all state agencies. This means that if any private party contracting with the state is alleged to have committed a “false claim” with the state of Wisconsin, a relator can bring a claim on behalf of the state against the business.

The problem with the qui tam law is that it provides incentives for private parties to sue. Under the proposed budget bill language, the relator can receive up to 30 percent of the total alleged damages to the state, as well as the ability to recoup his or her attorney’s fees and costs.

Moreover, the business providing the service to the state can be liable for up to three times the damages the state sustained, “or could have sustained,” whichever is higher.

 

State Qui Tam Laws Profit Plaintiff Attorneys and Do Little to Prevent Fraud

Not surprisingly, the main proponents of qui tam laws are plaintiff attorneys who profit off of suing businesses and medical providers on behalf of the state.

The U.S. Chamber Institute for Legal Reform in 2018 published a paper, “The Great Myths of State False Claims Acts,” which explains that there is little evidence that these statutes accomplish the ostensible goal of detecting and recovering damages for Medicaid fraud. Instead, in many instances the states with qui tam statutes may actually recover less from the average Medicaid fraud settlement than those states without, due to the state’s obligation to pay out a share of the settlement to the private party.

At the federal level, the U.S. Department of Justice (U.S. DOJ) is seeking to curb meritless qui tam law suits encouraged by the Federal False Claims Act. Noting record increases in qui tam actions, in 2018 the U.S. DOJ issued a memo providing a general framework for its attorneys on when to dismiss qui tam actions in which the government chooses not to intervene. With the federal trend away from supporting qui tam actions, Wisconsin should not resurrect these ineffective and often meritless actions at the state level.

It’s also important to note that Wisconsin already has a law – Wis. Stat. § 49.49 – that grants the Attorney General the authority to prosecute Medicaid fraud and recover damages on behalf of the state. All damages recovered under this law go to the State of Wisconsin and need not be paid out to a private party or plaintiff attorneys.

 

Conclusion

The Wisconsin Civil Justice Council was instrumental in getting the previous qui tam law repealed in 2015, and will work hard to make sure the law is not enacted back into law.

 

Gov. Evers Budget Would Restore Qui Tam, Reverse Extraordinary Session

Posted on by Hamilton

In his 2019-21 state budget address, Gov. Tony Evers proposed several reforms related to Wisconsin civil procedure. Most notably, the governor is seeking to restore private individuals’ ability to bring qui tam claims by reviving the False Claims Act. WCJC supported the repeal of the False Claims Act in the 2015-16 state budget. Read about the budget proposal’s qui tam provisions and other notable budget provisions below.

 

Qui tam

 Qui tam claims are claims initiated by private individuals on their own behalf and on behalf of the state. Prior to the 2015-16 budget repeal, Wisconsin’s False Claims Act allowed private individuals to bring qui tam claims against persons who make false claims for Medical Assistance. Evers’s proposal goes even further than Wisconsin’s previous qui tam law by applying the law not only to Medicaid fraud and but to all state agencies. The Wisconsin Civil Justice Council helped repeal the law in 2015 and will work hard to ensure that it is not enacted back into law. Read more about the budget’s qui tam provision.

 

Extraordinary session

Evers is proposing the repeal of parts of the 2018 extraordinary session legislation. Evers suggests a full repeal of Act 370 which gives the legislature oversight of agency waiver requests, allows Joint Finance Committee oversight of Medicaid program changes, and codifies Medicaid work requirements and substance abuse screening for FoodShare.

Evers also proposes repealing provisions of Act 369 including:

  • The requirement that the legislature approve settlements by the attorney general.
  • The requirement that the attorney general deposit all settlement funds into the general fund.
  • The ability of the legislature to intervene in lawsuits involving the state.
  • The ability of the legislature to obtain outside legal counsel.
  • The definition and public transparency requirements for agency guidance documents.
  • The requirement that agencies cite statutes supporting any interpretation of law they publicly provide.

 

Settlement funds

In addition to eliminating the current requirement that all settlement funds go to the general fund, Evers proposes new appropriations for settlement funds in DOJ. These new appropriations include:

  • An appropriation to administer and remit payments received by DOJ that are owed to relators (i.e. in qui tam actions).
  • An appropriation to administer settlement funds where the terms of the settlement specify how the funds should be used.
  • An appropriation to administer settlement funds where the terms of the settlement do not specify how the funds should be used. This appropriation may be used in DOJ at the attorney general’s discretion.
  • A requirement that DOJ submit semiannual reports to the Joint Finance Committee on how settlement funds are spent.

 

Judicial Council

Evers’s budget proposal does not restore funding or position authority to the Judicial Council. Former Gov. Scott Walker defunded the Judicial Council in the 2017-19 state budget after the Supreme Court sent an orderto DOA that it will no longer transfer funds to DOA in support of the Judicial Council. While the Judicial Council lacks funding, the statute (Wis. Stat. § 20.670) creating the Judicial Council remains in place.

The Judicial Council’s proposed budget details performance measures and results from 2017 continuing into 2021. The Judicial Council’s goals for 2019, 2020, and 2021 include:

  • Drafting and filing a Supreme Court petition to update rules regarding duty to preserve evidence in civil case.
  • Reviewing ways to incorporate Federal Rules of Evidence into Wisconsin’s rules.
  • Review modifications to the Rules of Civil Procedure created by 2017 Act 235 to update the act with Federal Rules of Civil Procedure. WCJC supported Act 235 in the 2017-18 session.

DPW Files Extraordinary Session Challenge

Posted on by Hamilton

The Democratic Party of Wisconsin (DPW) has filed a complaint seeking to declare the 2018 extraordinary session legislation in violation of the U.S. Constitution. The complaint, one of several challenges to the extraordinary session, alleges that the legislation violates the plaintiffs’ First and Fourteenth amendment rights, as well as the Guarantee Clause.

The U.S. Constitution Art. 4 § 4 guarantees states a republican form of government. DPW’s complaint alleges that the Republican legislature violated the Guarantee Clause by removing powers from the incoming Democratic administration to the legislature.

DPW also claims that the extraordinary session violated the plaintiffs’ First Amendment rights to free association and free speech because the state legislature retaliated against Democratic candidates based on their political viewpoints by limiting their ability to enact their policy preferences via the newly elected Democratic Gov. Tony Evers and Attorney General Josh Kaul.

Finally, DPW argues the legislation violates the Fourteenth Amendment’s Equal Protection Clause because it dilutes the power of Democratic votes.

The complaint is the first federal challenge to the extraordinary session legislation. Other challenges in state courts argue that the extraordinary session was not convened in accordance with the Wisconsin Constitution (League of Women Voters v. Knudson) and that the legislation violates the state Constitution’s separation of powers principles (Service Employees International Union v. Vos).