In a 4-3 decision on June 21, the Wisconsin Supreme Court affirmed that the Legislature’s 2018 extraordinary session was constitutional in League of Women Voters v. Evers (2019 WI 75), thus upholding 2017 Acts 368, 369, and 370 and the confirmation of 82 appointments.

 

Background

The Wisconsin Legislature passed three laws limiting the power of the attorney general and the governor in a “lame duck” extraordinary session in December 2018, after Gov. Tony Evers was elected but before he took office. Additionally, the Senate approved 82 former Gov. Scott Walker appointees in the December extraordinary session.

The League of Women Voters and other plaintiffs subsequently filed the instant lawsuit seeking to overturn the laws and appointments. The League argued the Legislature does not have the constitutional authority to convene an extraordinary session.

 

Decision

The Supreme Court opinion, authored by Justice R. Bradley (joined by Chief Justice Roggensack, Justice Kelly, and Justice Ziegler) rules in favor of the Legislature, finding the Legislature constitutionally met to vote on the laws and the appointments.

The court said the Wisconsin Constitution authorizes the Legislature to meet only as provided by law or when convened by the governor (Wis. Const. Art. IV, § 11). Wis. Stat. § 13.02(3) provides that the Legislature can implement a work schedule. The Legislature provided a work schedule for the 2017-18 session in 2017 Senate Joint Resolution 1, specifically stating that any days not reserved for scheduled floorperiods are available for the Legislature to convene an extraordinary session. Furthermore, Art. IV § 8 of the Constitution provides that “Each house may determine the rules of its own proceedings.” Therefore, the court ruled the Legislature met as provided by law under the Constitution and Wis. Stat. § 13.02(3).

The League of Women Voters argued that 13.02(3) only authorizes “regular” sessions, not “extraordinary” sessions. However, the court said the lack of the work “extraordinary” in the statute does not make it unconstitutional.

Regarding separation of powers arguments, the Supreme Court said the circuit court’s decision ruling the extraordinary session unconstitutional improperly encroached on the Legislature’s constitutional powers. While the courts can determine whether laws enacted by the Legislature are constitutional, courts do not have jurisdiction over how the Legislature enacts laws.

 

Dissent

Justice Dallet’s dissent (joined by Justices Abrahamson and Walsh Bradley) would have affirmed the circuit court’s decision blocking the extraordinary session laws. The dissent said the court’s reading of the constitutional provisions would give the Legislature unlimited authority to convene, which was contrary to the intention of the drafters of Art. IV, § 11. Furthermore, the joint resolution allowing the Legislature to meet for extraordinary sessions was not “law” as required by Art. IV, § 11.

 

There are other cases both in state and federal court seeking to declare the extraordinary session laws unconstitutional. Read more about the other litigation here.

In Pinter v. Village of Stetsonville (2019 WI 74), a 4-3 Wisconsin Supreme Court held that a village’s oral policy related to wastewater processes did not create a ministerial duty exempting it from governmental immunity protections. Furthermore, expert testimony was required for the plaintiff to proceed with a public nuisance claim against the village.

 

Facts

The underlying claim in the case arose when the Village of Stetsonville failed to abide by its oral policy to bypass typical wastewater treatment processes during heavy rains. As a result, waste and sewage leaked into Alan Pinter’s basement. Pinter filed the instant lawsuit, claiming negligence and private nuisance. The village argued it was protected under governmental immunity (Wis. Stat. § 891.80(4)). Pinter argued that by not following the village’s oral policy, the village failed to perform a ministerial duty, exempting it from governmental immunity.

 

Decision

The Supreme Court ruled that the oral policy to bypass wastewater treatment processes when excess water reached a certain point did not constitute a ministerial duty. Instead, it was a discretionary “rule of thumb.” Department of Natural Resources rules related to bypassing wastewater treatment underscore the discretionary nature of the decision whether or not to bypass, as they require village employees to determine whether damage would be “unavoidable” and whether there are “feasible alternatives” to bypassing typical processes. Because the decision whether or not to bypass was discretionary, the ministerial duty exception did not apply and governmental immunity blocked Pinter’s negligence claim.

On Pinter’s private nuisance claim, the court determined that expert testimony was required for Pinter to prove that the village’s failure to maintain its wastewater disposal system caused the damages to his basement. In private nuisance cases, the burden is on the plaintiff to prove causation, and without expert testimony on this complex subject, Pinter failed to raise a genuine issue of material fact as to causation. Therefore, the court upheld summary judgment in favor of the village.

 

Dissent

In a dissent, Justice Dallet (joined by Justices R. Bradley and Kelly) advocated that the court should return to the plain text of the governmental immunity statute and afford governmental immunity only to employees acting “in the exercise of legislative, quasi-legislative, judicial, or quasi-judicial functions” (Wis. Stat. § 891.80(4)). In this case, the village employees reacting to the wastewater emergency were not engaging in these functions, especially since the village had not legislatively formalized the “rule of thumb” bypass policy. Therefore, the dissent would not have afforded governmental immunity to the village. These justices authored a similar dissent in Engelhardt v. City of New Berlin earlier this year.

On the private nuisance claim, the dissent takes issue with the court’s decision requiring expert testimony in all cases related to negligent maintenance of wastewater systems. The dissent argues the need for expert testimony should be decided according to the facts on a case-by-case basis. In this case, inferences from the record were sufficient to establish a genuine issue of material fact without expert testimony.

 

In David Paynter v. ProAssurance Wisconsin Insurance Co. (2019 WI 65), the Wisconsin Supreme Court held that in medical malpractice cases where a misdiagnosis causes latent, continuous injury, the plaintiff’s first injury determines whether the action is a “foreign cause of action” under Wisconsin’s statute applying foreign statutes of limitation (Wis. Stat. § 893.07), also known as the “borrowing statute.” The court determines the jurisdiction of the injury based on where it is first felt by the patient.

 

Facts

The underlying claim in the case arose when Dr. James Hamp, who operates offices in both Wisconsin and Michigan, misdiagnosed a growth on patient David Paynter, a Michigan resident. Paynter first saw Dr. Hamp in his Michigan office, but Dr. Hamp called Paynter with the misdiagnosis from his Wisconsin office. Paynter was residing in Michigan at the time of the call and for the next four years before he found out his growth was cancerous. Paynter sued Dr. Hamp and both his Michigan and Wisconsin malpractice insurance policies, claiming both negligence and violation of the patient’s right to informed consent.

 

Decision

The issue before the Supreme Court was whether Paynter’s injury was a “foreign cause of action” under Wis. Stat. § 893.07, thus barring the claim under Michigan’s statute of limitations. The court held that in medical malpractice cases like Paynter’s where a misdiagnosis causes latent, continuous injury, the plaintiff’s first injury determines whether the action is a “foreign cause of action” under the borrowing statute. The court based the determination on previous case law holding that an actionable injury in medical malpractice cases occurs when the misdiagnosis causes a greater harm than previously existed.

On Paynter’s negligence claim, the court could not identify when and where the Paynter’s greater harm first occurred. When the plaintiff’s place of injury is unknowable, the borrowing statute does not apply. Therefore, Wisconsin’s longer medical malpractice statute of limitations applied to Paynter’s negligence claim, allowing this claim to proceed.

On Paynter’s informed consent claim, the court determined that Paynter’s injury occurred in Michigan because Paynter was in Michigan when Dr. Hamp called him with the misdiagnosis. Previous case law states that “the injury occurs where it is felt rather than where it originates.” Therefore, Paynter’s injury was a “foreign cause of action” under the borrowing statute, so Michigan’s shorter medical malpractice statute of limitations barred his informed consent claim.

The Supreme Court declined to adopt Paynter’s argument that at least some of his injuries occurred in Wisconsin since he spent time in Wisconsin during the four year period after the misdiagnosis. The court said Paynter’s proposed analysis would allow almost any misdiagnosis case to proceed as non-foreign and encourage venue-shopping in Wisconsin courts.

The court declined to address the issue of insurance coverage related to this case.

 

Dissents

In a partial dissent, Justice Walsh Bradley disagreed with the court’s determination on Paynter’s informed consent claim. Instead of finding that the injury occurs where it is felt (i.e. where the patient receives the misdiagnosis call), the court should have used the test from International Shoe Co. v. Washington, which requires a defendant to have minimum contacts in Wisconsin in order to apply Wisconsin’s statute of limitations. In this case, Dr. Hamp had enough contacts in Wisconsin to pass the International Shoe test, so the Wisconsin statute of limitations would have applied, allowing the plaintiff’s claims to proceed. The dissent notes complications could occur using the test adopted by the court because patients could be anywhere when they receive a misdiagnosis call.

In another partial dissent, Justice R. Bradley (joined by Justice Kelly) noted similar concerns regarding the impracticalities of the court’s place-of-injury test and “where the injury was felt” test in determining whether the borrowing statute applies in misdiagnosis cases. The dissent would also have remanded the case to lower court to determine whether Paynter actually stated an informed consent claim for which relief may be granted. Furthermore, the dissent agreed with the court’s decision not to rule on coverage, but rejected the court’s criticism of how Dr. Hamp’s insurer ProAssurance Wisconsin Insurance Co. handled its briefing on the subject.

In Teske v. Wilson Mutual Insurance Co. (2019 WI 62), the Wisconsin Supreme Court held that previous litigation related to underinsured motorist (UIM) coverage precludes a second tort claim alleging negligence in the same accident.

The litigation arose from a car accident that injured four members of the Teske family: Julie, Katherine, Elle, and Emily. Emily Teske was driving the vehicle. John Teske was not in the car.

Julie, Katherine, and Elle Teske filed the first action against the other driver and her insurer State Farm. The parties agreed on a settlement wherein State Farm tendered its $300,000 policy limit to the plaintiffs. The Teskes’ insurer Wilson Mutual paid the Teskes their UIM policy limit minus the amount provided by State Farm in accordance with the Wilson policy’s reducing clause. An appeals court determined the validity of the Wilson payment.

After the conclusion of the first action, John, Julie, Katherine, and Elle Teske filed a claim alleging Emily Teske, who was driving the vehicle, was negligent. The Teskes sued Wilson directly as Emily’s insurer. Wilson argued claim preclusion barred this second action.

The Supreme Court held 6-0 that claim preclusion did apply to Julie, Katherine, and Elle’s negligence claim, barring the second action against Wilson. The second action satisfied all three required elements of claim preclusion:

1. Identity of parties. Julie, Katherine, and Elle Teske and Wilson were named parties in both the first and second lawsuit.
2. Identity of causes of action. The lawsuits both arose from a single accident. The decision noted claim preclusion analyses should focus on the identity of the facts, not the identity of the legal arguments. The court held that UIM actions involve both contracts and tort law, so the Teskes’ negligence claim against Emily could have been litigated in the first lawsuit.
3. Final judgment reached. The appeals court did reach a final judgment in the Teskes’ first action.

However, the court was evenly divided as to whether John Teske was a party in the first lawsuit. While he was not named in the first lawsuit, he participated in the settlement process and received proceeds. With an evenly divided court (3-3 with Justice Shirley Abrahamson not participating), the Supreme Court affirmed the appeals court’s decision allowing John Teske’s claims to proceed because the identity of parties element of claim preclusion was not met.

The Wisconsin Supreme Court recently accepted several new cases. The final oral arguments of the 2018-19 term were held on May 15, so new cases will be heard in the fall. Cases of note include:

• Town of Wilson v. City of Sheboygan (2018AP2162). The Supreme Court will review Kohler Co.’s petition to annex land from the Town of Wilson to the City of Sheboygan for the purpose of developing a golf course. The City of Sheboygan adopted the annexation ordinance, and the Town of Wilson filed the instant lawsuit.

  The Town argues that the annexation does not satisfy statutory requirements for contiguity, certified population count, and signatures. Furthermore, the City did not show there was a need for the annexed property.

  On the other hand, the City argues they and Kohler followed all statutory requirements related to the annexation. Furthermore, the City argues it had a need for expanded residential housing and other economic benefits provided by the annexation.

• Steven J. Piper v. Jones Dairy Farm (2018AP1681). The Supreme Court will determine whether employees’ donning and doffing activities are compensable under state law and whether such compensation is precluded by their collective bargaining agreements.

  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 Dairy argues that the plaintiffs bargained away their right to compensation for donning and doffing in the collective bargaining agreements. Furthermore, Jones Dairy does not owe the employees compensation because the time spent changing before and after shifts is de minimis.