Category: Wisconsin Supreme Court

Legislature Files Legal Challenge to DHS “Safer At Home” Order Extension

Posted on by Hamilton

On April 16, Gov. Tony Evers directed Department of Health Services Secretary-designee Andrea Palm to extend Wisconsin’s Safer at Home Order to May 26 under Emergency Order #28. Less than a week later, the Republican-led Wisconsin Legislature filed a lawsuit challenging DHS’s authority to issue such an order.

DHS issued the order under Wis. Stat. §§ 252.02(3), (4), and (6), which allow the secretary to “close schools and forbid public gatherings in schools, churches and other places,” “promulgate and enforce rules or orders,” and “authorize and implement all emergency measures” to control communicable diseases, epidemics and outbreaks like COVID-19.

The Legislature’s lawsuit alleges that, even given this statutory authority:

  • The Emergency Order is a “rule” under Wisconsin rulemaking statutes (Wis. Stat. Ch. 227) and should have gone through the statutory emergency rulemaking process, which allows for legislative oversight and public input.
  • Even if the order does not violate Wisconsin rulemaking laws, the content of the order exceeds DHS’s authority under those statutes.
  • DHS acted arbitrarily and capriciously in issuing the order because it did not provide a reasoned basis for distinguishing between essential and nonessential businesses.

The Legislature is asking the court for a temporary injunction of the Emergency Order, but suggests the court give DHS six days of lead time to promulgate an emergency rule to lawfully enforce the order. The intent of the six day stay request is to ensure the state is not without protective measures against COVID-19 and to continue mitigation of the public health risk, but still ensure that DHS is acting within its authority under the law.

The Legislature filed the action at the Wisconsin Supreme Court. DHS filed their response on April 28. Then, the Legislature will have until April 30 to respond before the court makes a decision.

As of right now, the Emergency Order extending Safer at Home is still in effect.

Wisconsin Supreme Court Rejects ACLU Coronavirus Lawsuit

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The Wisconsin Supreme Court has denied the petition of American Civil Liberties Union of Wisconsin (ACLU) seeking removal of inmates from Wisconsin correctional facilities to address the COVID-19 pandemic. The lawsuit had argued that Wisconsin prisoners and jail inmates should be released because subjecting prisoners to a likely outbreak of COVID-19 violates the rights to be free of cruel and unusual punishment and to receive due process.

The plaintiffs asked the court to ensure enough prisoners are released so that no person shares a cell with another person, there is six feet of separation between beds, and other social distancing guidelines are achieved in order to reduce the spread of the coronavirus. ACLU suggested that individuals at high risk of contracting the disease should be prioritized for removal.

ACLU, along with Wisconsin Association of Criminal Defense Lawyers and Disability Rights Wisconsin, filed the lawsuit against Gov. Tony Evers, Wisconsin Department of Corrections Secretary Kevin Carr, and the chairman of the Wisconsin Parole Commission. The defendants opposed the petition. The Wisconsin Supreme Court denied the petition for original action on April 24, stating that the administration is already taking concrete steps to manage COVID-19 in Wisconsin correctional facilities and the remedies requested by the plaintiffs are outside the scope of the court’s powers.

Karofsky Wins State Supreme Court Election

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April 7 Election Results

 One week after election day, Wisconsin spring election results were finally released on April 13. On the ballot on April 7 was the Democratic primary for president, a state Supreme Court seat, and many local races. Turnout was the highest for a spring election since 2016, when there were primaries for both Democrat and Republican presidential nominees.

Wisconsin Supreme Court: Liberal Dane County Circuit Court Judge Jill Karofsky beat incumbent conservative Justice Daniel Kelly in the race for Wisconsin Supreme Court with about 55 percent of the vote. When she is inaugurated to the bench in August, Karofsky’s addition will move the court from a 5-2 to a 4-3 conservative majority. The next Supreme Court election will not be until Chief Justice Roggensack is up for reelection in 2023.

Democratic primary: Vice President Joe Biden won the Democratic primary for president in Wisconsin. His opponent Sen. Bernie Sanders dropped out on April 8, the day after the Wisconsin election, making Wisconsin the last contested primary of the 2020 primary race. Biden had around 63 percent of the Wisconsin vote, and Sanders had about 32 percent. Biden gained the endorsement of both Sanders and President Barack Obama following his win in Wisconsin.

Constitutional amendment: Voters approved a constitutional amendment on victims’ rights. Known as Marsy’s Law, the constitutional amendment passed the Legislature for the second time in 2019 and now, with voter approval, becomes law. About 75 percent of voters voted in favor of the constitutional amendment.

 

Election Litigation

Wisconsin’s spring election on April 7 gained national attention as several lawsuits sought to make changes to in person and absentee voting in the midst of the COVID-19 pandemic.

Although the lawsuits were resolved the day before the election, it is expected that there will be more post-election litigation. Already, before election results were released, on April 13 a group of Milwaukee-area residents filed a class action lawsuit against the Legislature and the Wisconsin Elections Commission seeking a partial revote for the April 7 election and election changes for Wisconsin’s remaining elections in 2020. (Plaintiffs’ press release)

After Court Rulings, In-Person Voting Proceeds in Supreme Court Election

Posted on by Hamilton

After rulings from the Supreme Court of the United States and the Wisconsin Supreme Court the night before election day upheld the April 7 date and absentee voting requirements, Wisconsin’s election for state Supreme Court proceeded with few changes. In-person voting was held, and absentee voter requirements were largely the same (though at record high numbers). Wisconsin’s spring elections included the race between incumbent state Supreme Court Justice Daniel Kelly and Judge Jill Karofsky, as well as the Democratic primary for president and many local offices. Results will not be released until April 13, the deadline for clerks to receive absentee ballots.

 

Background

As COVID-19 began spreading throughout the state, Wisconsin Gov. Tony Evers had initially maintained – and legislative leadership agreed – that the April 7 election in Wisconsin should not be moved. Instead, the Governor and other state and local officials encouraged voters to request absentee ballots. The Governor’s Office was also working with the Wisconsin Elections Commission and local election officials on obtaining sanitizing supplies to keep polling sites clean, obtaining more absentee ballots, recruiting poll workers, and addressing other issues related to the unusual circumstances of these elections.

As the election date came closer, local governments began putting pressure on the Evers administration to make changes to keep poll workers and voters safe. On March 22, a large group of local officials sent Gov. Evers and legislative leadership a letter asking for options to make holding elections easier on municipalities and voters in the midst of COVID-19.

On March 27, Gov. Evers called on the Legislature via Twitter to send absentee ballots to all Wisconsin voters. Legislative leadership said this would not be logistically feasible in time for the April 7 election. (Senate Majority Leader Fitzgerald statement. Assembly GOP statement.)

On April 3, Gov. Evers called for a special session of the legislature to make changes for the April 7 election, including: making the election mail-in only, sending ballots to all registered voters who have not yet requested one, and extending the time for ballots to be received to May 26. The Legislature gaveled in and out of the session without taking up any legislation.

 

State Lawsuit on Changing the Election Date

Despite stating multiple times that he could not and did not want to move the election date, on April 6, the night before the election, Gov. Evers issued Executive Order #74, moving the spring election date to June 9, 2020 and calling the Legislature into special session to address the election date. Under the order, voters could continue to request absentee ballots until then and ballots already submitted would be counted. Local elected office terms would be extended until the results of the June date were finalized.

Legislative leaders immediately filed an emergency petition for original action and motion for temporary injunction with the Wisconsin Supreme Court to block the Governor from moving the election (memo in support of the filings). Later the same day, the Supreme Court approved the Legislature’s motion, reinstating in person voting for April 7.

The 4-2 decision (split between the conservative and liberal justices) said the Governor does not have the constitutional or statutory authority to suspend the elections statutes. According to the court, the Governor’s emergency powers in Wis. Stat. § 323.12(4)(b) give him the power to suspend administrative rules, not statutes, in the name of public safety. The Legislature would have to give the Governor explicit authority to change statutes in the event of an emergency.

A dissent from Justices Walsh Bradley and Dallet argued that Wisconsin statutes do provide the Governor and the Department of Health Services the authority to implement emergency measures, including moving elections, during a public health emergency (see Wis. Stat. § § 252.02 and 323.12(4)(b). The dissent said the court should have upheld the executive order for the safety of Wisconsin voters.

Justice Daniel Kelly, who is on the April 7 ballot, did not participate.

 

Federal Lawsuit on Election Date & Absentee Voting Requirements

Also the night before the election, a major case in federal court regarding Wisconsin’s April election was resolved by the U.S. Supreme Court.

Three cases seeking changes to absentee voting for the April 7 election had been consolidated by a federal judge. 

  1. The Democratic National Committee sought to move the mail-in registration deadline and waive voter ID requirements during the pandemic. (A federal judge had already extended the deadline to request a mail-in ballot to April 2.)
  2. The League of Women Voters sought to waive the witness signature requirement on absentee ballots during the pandemic.
  3. Another lawsuitfiled by Souls to the Polls, Voces de la Frontera and Black Leaders Organizing for Communities argued that minority voters will be disenfranchised if the Wisconsin Elections Commission does not move the April 7 election date.

The state Department of Justice, representing Gov. Evers, had submitted a brief asking that the court again extend the deadline for requesting an absentee ballot and relax witness signature requirements, among other recommendations, while still keeping in person voting on April 7.

On April 2 the judge ruled there would be no change to the election date, but absentee ballots could be received until April 13. Ballots postmarked after April 7 could still be counted, contrary to current law. The judge’s amended order noted that election results could not be made public until April 13. The judge declined to waive voter ID requirements.

The district court judge also waived the requirement for absentee voters to have their ballot signed by a witness, but this provision was overturned by the 7th Circuit Court of Appeals.

Republicans ultimately appealed to the U.S. Supreme Court. The night before the election, the U.S. Supreme Court overturned the district judge’s ruling. The decision says absentee ballots must be postmarked by April 7 and received by April 13. Ballots delivered in person must be delivered on April 7.

 

Other Lawsuits

The City of Green Bay filed a lawsuit against the Wisconsin Elections Commission, Gov. Evers, and Department of Health Services Secretary Andrea Palm, seeking to move the election date and switch to mail-in voting only. A federal judge dismissed the case on March 27.

The Republican Party of Wisconsin asked the Wisconsin Supreme Court to intervene in Milwaukee and Dane counties, where clerks have said voters may note their status as “indefinitely confined” to avoid voter ID requirements. A Supreme Court order barred election officials from giving such advice.

 

Election Day

With the lawsuits resolved, Wisconsin’s election day proceeded largely as planned. Gov. Evers deployed the National Guard to help where there are shortages of poll workers, and many local clerks took creative safety precautions to protect poll workers and voters.

On the ballot for Supreme Court was incumbent conservative Justice Daniel Kelly and liberal Dane County Circuit Court Judge Jill Karofsky. Read more about the candidates. Results will be available April 13.

 

 

 

Wisconsin Courts Respond to COVID-19

Posted on by Hamilton

As Wisconsin government and the public struggle with the COVID-19 pandemic, Wisconsin courts remain operational but with reduced calendaring.

  • Subject to certain exceptions, all proceedings in Wisconsin courts are to be conducted via remote audio-video technology if practicable. (Supreme Court order)
  • Wisconsin Supreme Court March 18, March 30, and April 1 oral arguments cancelled. (More on oral arguments)
  • State courts administrative offices closed until at least April 3. (March 17 press release)
  • Some appellate filing deadlines extended and other filing procedures amended.  (Supreme Court order, extended order)
  • Nonemergency motions to the Court of Appeals and Supreme Court are discouraged through April 3. (Supreme Court order)
  • Many individual circuit courts have issued emergency orders related to COVID-19. (See COVID-19 tab at https://www.wicourts.gov/.)
  • The Supreme Court has also temporarily increased the number of credits from on-demand programs that lawyers may use to satisfy CLE requirements.
  • Civil and criminal jury trials are suspended until May 22.
  • The Supreme Court has postponed bar admissions ceremonies through May and instituted temporary procedures for admission to the bar.
  • The Supreme Court has established a temporary rule for the remote administration of oaths at depositions via remote audio-visual equipment.
  • The Supreme Court will hold a public hearing on May 1 (with written comments open until April 24) and its interim rule to temporarily suspend statutory deadlines for civil jury trials due to the pandemic.

 

 

Wisconsin Supreme Court Oral Arguments – March & April

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Due to COVID-19 concerns, the Wisconsin Supreme Court has canceled its oral arguments for most of March and April. New dates for oral arguments will be set at a later date, unless all parties stipulate to the court proceeding with a decision without oral arguments. As of right now, oral arguments are still on for April 20. Below are the cases of note that were scheduled to be heard.

 

April 20 – Veto Authority Cases

Still on the schedule as of right now are oral arguments on April 20 in two cases challenging the veto authority of the governor. Bartlett v. Evers challenges vetoes by Gov. Tony Evers in the 2019-21 state budget, and Wisconsin Small Business United, Inc. v. Brennan challenges vetoes by Gov. Scott Walker in the 2017-29 state budget.

 

April 1 (Canceled) – Federal Preemption of Weight Limits

On April 1, the court had been scheduled to hear Town of Delafield v. Central Transport Kriewaldt. The case will decide whether federal transportation law preempts the town’s seasonal weight restriction on certain roads. Federal law (U.S. Code Title 49 s. 31114(a) and Title 23 s. 658.19) requires towns provide “reasonable access” between the interstate and terminals. The court will determine whether Delafield’s seasonal weight limits provided reasonable access.

 

March 30 (Canceled) – Gambling Statutes

On March 30, the court had been scheduled to hear Quick Charge Kiosk, LLC v. Josh Kaul. The court will determine whether gaming and cell phone charging machines operated by Quick Charge violate certain Wisconsin gambling statutes.

The Quick Charge machines allow customers who insert a dollar in the machine to receive one minute of charging time and 100 credits to play the video chance game. After the charging time expires, customers can no longer play the game but can redeem their remaining credits for cash at the same rate for which they paid for the credits ($1 for 100 credits).

Some municipalities attempted to remove the Quick Charge machines because they believed the machines were illegal gambling devices. In this case, Quick Charge filed an action seeking a declaratory judgment that the machines are in compliance with Wisconsin’s gambling statutes. The state Department of Justice moved for summary judgment, asking the court to declare the machines unlawful.

The Supreme Court will examine whether or not the gambling statutes apply to this specific type of machine and to promotions run by Quick Charge.

 

March 18 (Canceled) – Administrative Rulemaking & Guidance Documents

On March 18, the court had been scheduled to hear Papa v. Department of Health Services. In this case, the court will determine whether a Wisconsin Department of Health Services (DHS) policy in DHS’s Medicaid Provider Handbook has the “force of law” (Wis. Stat. § 227.01(13)) and should be promulgated as an administrative rule and subject to judicial review.

Medicaid-certified nurse Kathleen Papa and Professional Homecare Providers, Inc. (PHP) filed this lawsuit against DHS regarding Topic #66 in DHS’s Medicaid Provider Handbook. Topic #66 states that Medicaid providers must “meet all applicable program requirements” for reimbursement. If providers fail to meet all requirements, DHS can recoup payments from the providers. Papa and PHP argued that Topic #66 was an illegal unpromulgated administrative rule and that the policy exceeded DHS’s explicit statutory authority under Wis. Stat. Ch. 227.

The Supreme Court will review the Court of Appeals finding that Topic #66 was not an administrative rule, and thus Papa and PHP could not obtain a declaratory judgement via Wis. Stat. Ch. 227 judicial review of administrative rule proceedings. Additionally, the Supreme Court will review whether Topic #66 – if not a rule – is a guidance document also subject to judicial review under Ch. 227.

Wisconsin Supreme Court Accepts New Veto Authority Case

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The Wisconsin Supreme Court recently accepted a new case, Wisconsin Small Business United, Inc. v. Brennan (2019AP2054), which will decide whether the governor’s partial veto authority allows him to change dates in a piece of legislation.

Petitioners challenge the constitutional validity of two vetoes by Gov. Scott Walker in the 2017-19 budget bill. In that budget, the Governor used his partial veto authority to delay the effective date of a program by 60 years and extend another program by 1,000 years.

The court will decide whether Art. V § 10 of the Wisconsin Constitution allows governors to change dates in appropriations legislation. The constitution provides that governors may partially veto numbers in appropriations and may veto entire words but may not create a new word by vetoing individual letters. At issue is whether the governor can veto individual numbers in dates in appropriations legislation.

Also on the Supreme Court’s docket is a case challenging vetoes by Gov. Tony Evers in the 2019-21 state budget, Bartlett v. Evers. The cases are both scheduled for oral argument on April 20.

 

Piper v. Jones Dairy Farm (Donning & Doffing Compensation)

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In Piper v. Jones Dairy Farm (2020 WI 28), the Wisconsin Supreme Court determined that employees’ donning and doffing activities are compensable under state law and such compensation cannot be precluded by collective bargaining agreement.

 

Facts

Plaintiffs are employees of Jones Dairy Farm seeking compensation for time spent putting on and removing safety shoe covers, frocks, hairnets, etc. before and after their shifts. Compensation for donning and doffing was not included in multiple collective bargaining agreements between the employees’ union and Jones Dairy.

Jones Diary argued the employees had bargained away their rights to donning and doffing compensation in their collective bargaining agreements. According to Jones Dairy, the employees during multiple negotiations had withdrawn proposals for donning and doffing compensation in exchange for higher base wages.

Alternatively, Jones Dairy argued the time spent donning and doffing was de mininmis or that the equitable defenses of promissory estoppel, waiver, laches, and unjust enrichment bar the plaintiffs’ claims.

 

Decision

A 4-3 court held that compensation for donning and doffing cannot be bargained away in a collective bargaining agreement. The law does not exempt employers from compensating employees for all hours worked, and donning and doffing is included in “hours worked” under Wis. Admin. Code § DWD 272.12. Wisconsin statute does not specifically allow employers to modify donning and doffing through collective bargaining, whereas federal law does. The federal law does not preempt state law because there is no Wisconsin statutory equivalent to the federal provisions. Furthermore, § DWD 274.05, which allows exemptions from certain wage requirements if both management and labor seek a waiver from DWD, does not apply to § DWD 272.12 requirements.

On Jones Dairy’s alternative arguments, the court found that the aggregate time employees spent donning and doffing was not de minimis. The court also found that Wis. Stat. § 109.03(5), which provides a private right of action in state court for employee wage claims, does not bar Jones Dairy’s equitable defenses. The Supreme Court remanded the case to the circuit court to reconsider the equitable defenses argued by Jones Dairy.  

Justice Dallet wrote the decision, joined by Justices Walsh Bradley, Kelly and Hagedorn.

 

Dissents

In a dissent, Justice Ziegler (joined by Chief Justice Roggensack) argued that donning and doffing compensation is subject to collective bargaining. According to the dissent, donning and doffing compensation requirements can be waived under § DWD 274.05. Chapter 274 incorporates § 272.12, which governs the compensability of donning and doffing.

Although Jones Dairy and the employees did not apply for a waiver under § DWD 274.05, the statute and previous case law allow wage requirements to be waived without a formal request to DWD if it is agreed upon in collective bargaining and other factors are met (i.e. waiving requirements is not dangerous to the life, health, safety or welfare of the employees). In this case, the dissent found there was an issue of material fact as to whether donning and doffing compensation was bargained away, so the dissent would have remanded to circuit court to rule whether Jones Dairy and the employees’ agreement met the conditions to waive donning and doffing wage requirements.

The dissent further argued that the de minimis doctrine does apply in Wisconsin and criticized the court for failing to adopt a standard to determine what is de minimis. Additionally, the dissent would have provided guidance to the circuit court on Jones Dairy’s equitable defenses.

In a second dissent, Justice R. Bradley agreed with the court that donning and doffing compensation cannot be bargained away but would have found the time spent donning and doffing de minimis. The dissent would have adopted the de minimis doctrine for wage claims under Wisconsin law and used the federal standard for determining when wages owed are de minimis.

Lang v. Lions Club of Cudahy Wisconsin, Inc. (Recreational Immunity)

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In Lang v. Lions Club of Cudahy Wisconsin, Inc. (2020 WI 25), the Wisconsin Supreme Court held that recreational immunity applied to a sound engineer who set up cords that injured a woman at a music performance because the sound engineer was an agent of the festival owner.

 

Facts

At an event run by the Lions Club, plaintiff Antoinette Lang tripped over an electrical cord placed by sound engineer Fryed Audio, LLC. Fryed’s principal and a member of the band using the cords, Steve Fry, positioned the cord prior to the event. Freyed Audio, LLC was the lead member of Rhythm Method, LLC, with whom the Lions Club contracted to provide music for the festival.

A separate case ruled the Lion’s Club was entitled to recreational immunity as “owner” of the event under Wis. Stat. § 895.52(2). The question before the Wisconsin Supreme Court was whether Fryed Audio was also entitled to immunity as an “agent” of the Lions Club.

 

Decision

 The court held that Fryed was an agent of the Lion’s Club entitled to recreational immunity because the Lion’s Club had the right to control Fryed’s conduct in setting up the music equipment that allegedly caused Lang’s injury.

The court rejected Lang’s argument that the Lion’s Club did not have the right to control Fryed’s conduct because the Lion’s Club lacked expertise to perform and control such a complicated task. The injury-causing conduct in this case – placing the cords – was not so complicated that the Lion’s Club could not have controlled the conduct. Furthermore, placing the cords did not require the Lion’s Club to provide Fryed with “reasonably precise specifications” in order for Fryed to be determined an agent. (The court noted that this case differed from Westmas v. Creekside Tree Service, Inc. (2018), where reasonably precise specifications would have been required for the tree-trimming service to be considered an agent of the immune owner because the injury-causing conduct was too complicated for the property owner to have control over.)

Since Fryed was the subagent of Rhythm Method, LLC, which was acting as the Lion’s Club’s agent in setting up the music for the festival, the court determined Fryed was an agent entitled to recreational immunity.

Chief Justice Roggensack wrote the lead opinion for the court, joined by Justice Ziegler.

 

Concurring Opinion

In a concurring opinion, Justice R. Bradley (joined by Justice Kelly) agreed that Fryed was an agent entitled to recreational immunity but disagreed with the court’s reasoning related to Westmas. The concurring opinion would have overturned Westmas and simply relied on whether the Lion’s Club had a right to control Fryed’s actions, instead of on whether the Lion’s Club had the expertise to do so. The concurring opinion argued that a principal’s lack of expertise or precise specifications, as the court said in its Westmas analysis, does not equate to lack of control. Therefore, the court should have eliminated the “reasonably precise specifications” and expertise analysis and found Fryed an agent simply based on the Lion’s Club’s ability to control Fryed’s actions.

 

Dissents

In a dissent, Justice Dallet (joined by Justice Walsh Bradley) would have determined that Fryed was not an agent of the Lion’s Club entitled to recreational immunity. According to the dissent, the contract between the Lion’s Club and Rhythm Method did not establish the Lion’s Club’s right to control Rhythm Method and its subagent Fryed; instead, the contract left control of setting up the music equipment up to Rhythm Method.

The dissent argued it does not matter if the task is simple or complex. Since the Lion’s Club did not give “reasonably precise specifications” to Rhythm Method, Westmas dictates that Fryed was not an agent of the Lion’s Club. The dissent also would not have provided immunity to Fryed because it was a subagent, not an agent, of the Lion’s Club.

Overall, the dissent argued that, under the court’s decision, recreational immunity would be too broad, applying to anyone associated with the event.

In a second dissent, Justice Hagedorn would also have determined Fryed was not an agent of the Lion’s Club entitled to recreational immunity. The dissent would have determined that Fryed was acting as an independent contractor of the Lion’s Club, not in a master-servant relationship where the agent’s physical conduct is controlled by the principal. As an independent contractor, Fryed was not acting within the scope of agency when it allegedly negligently placed the cords causing injury. The Lion’s Club did not have the right to control how Fryed set up the music equipment. Therefore, Fryed was not an agent entitled to recreational immunity.

DSG Evergreen Family Limited Partnership v. Town of Perry (Eminent Domain)

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In DSG Evergreen Family Limited Partnership v. Town of Perry (2020 WI 23), a unanimous Wisconsin Supreme Court held that claim preclusion did not apply, but the plaintiff had no private right of action against the town, barring this eminent domain case.

The Town of Perry took property from DSG in an eminent domain action. The land taken included a road, and the condemnation petition required the town to replace the road with the same standards as the former road – the statutory standards for construction of town roads in Wis. Stat. § 82.50(1). DSG argued that the new road did not meet the statutory standards, so the town violated the petition.

At issue before the Supreme Court was whether claim preclusion barred DSG’s lawsuit and whether DSG had a private right of action to hold the town accountable for failing to meet the statutory standards.

The court found that claim preclusion did not bar DSG’s claims against the town. The previous two cases litigated between DSG and the town were limited by statute to only certain issues regarding eminent domain procedure. DSG in the previous cases would not have been able to bring its instant claims about the town’s failure to construct the road to appropriate standards. Because there was no identity of the causes of action between the previous cases and the instant case, claim preclusion did not apply.

However, the court did bar DSG’s claims on the grounds that DSG had no private right of action either to 1) request a declaration that the town must improve the road to the statutory standards or 2) seek damages from the town via a private cause of action so DSG could improve the road itself. The court could not award DSG a declaration of rights because § 82.50 gives the town discretion as to if and how it meets the construction standards. The town can petition to the Department of Administration for exceptions to some of the statutory standards. Thus, the request for declaration of rights was not ripe for judicial review. The court further found that § 82.50 does not create a private cause of action against a municipality, so DSG could not seek damages.