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Gov. Evers Signs Legislation with COVID-19 Liability Protections

Posted on by Hamilton

On April 15, Gov. Tony Evers signed into law legislation on COVID-19 that included liability protections for health care workers and a limited liability provision for manufacturers. The bill was sent to the governor after passing on a bipartisan basis in both the Senate and Assembly.

The bill (AB 1038, now 2019 Wisconsin Act 185) includes provisions to: 

  1. Exempt manufacturers, distributors and sellers of emergency medical supplies and equipment that donate or sell their product from civil liability. Entities would be exempt from civil liability only if the product were sold or donated at a price that does not exceed the cost of production.
  2. Create liability protections for health care professionals acting to address the COVID-19 pandemic during the public health emergency. To be immune from liability, actions must be in good faith or be consistent with state or federal guidance related to the public health emergency.

WCJC worked with the Legislature on including protections for healthcare providers and their employees. However, WCJC opposed the unnecessary limitations on the civil liability protections for manufacturers of PPE and COVID-19 treatment equipment. WCJC also encouraged the Legislature to enact civil liability protections for employers keeping their workers and workplaces safe and for persons rendering aid. Those provisions were not included in the final legislation. (WCJC memo on liability protections in Wisconsin COVID-19 legislation.)

WCJC is continuing to work with the Legislature, the Governor, and the Wisconsin business community on enacting these further liability protections for employers and manufacturers as the state begins to look at reopening the economy.

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

Posted on by Hamilton

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.

AG Kaul Asks EPA to Strengthen PFAS Regulations

Posted on by Hamilton

Wisconsin Attorney General Josh Kaul on April 20 joined 17 other state attorneys general in comments asking the Environmental Protection Agency (EPA) to strengthen its proposed regulations on importation of PFAS products.

PFAS (per- and polyfluoroalkyl substances) are a group of thousands of man-made chemicals found in many everyday products, including nonstick pans, cleaning products, paints, and firefighting foam. The most extensively studied PFAS compounds are “long-chain” PFOA and PFOS, which have been phased out of domestic manufacturing over the past decade. Competing studies debate whether or not these chemicals have negative health effects and, if they do, at what level they are harmful.

 EPA is proposing to require importers of products that contain long-chain PFAS as part of surface coating to notify EPA before importation. EPA would then evaluate the conditions of use associated with the intended significant new use of the product before manufacturing and processing could begin.

In their comments, the attorneys general ask EPA to strengthen these regulations on imported PFAS-containing products by

  1. Including the entire family of long-chain PFAS in the regulations, not just the individual PFAS chemicals specified in the proposed rule.
  2. Expanding the regulations to products that contain PFAS anywhere within them, not just within surface coating.
  3. Applying the rule to all processing of PFAS-containing products, not just imports.
  4. Removing exemptions for de minimis amounts of PFAS.

Joining AG Kaul in the comments were the attorneys general of New York, Pennsylvania, California, Connecticut, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, Oregon, Rhode Island, Virginia, and Washington.

More on proposed PFAS regulation in Wisconsin.

AG Kaul also recently joined a group of state attorneys general asking EPA to rescind its policy of limiting civil enforcement in environmental actions during the COVID-19 crisis.

Assembly Passes COVID-19 Liability Protections

Posted on by Hamilton

On April 14, the Wisconsin Assembly met in its first ever virtual session to pass legislation on COVID-19. The bill included liability protections for health care workers and a limited liability provision for manufacturers. The Senate is expected to pass the bill, also in virtual session, on Wednesday. With the Assembly passing the bill on a bipartisan basis, it is expected that Gov. Tony Evers will sign the bill into law.

The Assembly’s virtual session featured many members participating remotely via Skype, while the remaining legislators, including leadership, were present in the chamber and practicing social distancing.

As passed by the Assembly, the bill, SB 932/AB 1038, includes provisions to: 

  1. Exempt manufacturers, distributors and sellers of emergency medical supplies and equipment that donate or sell their product to be exempt from civil liability. Entities would be exempt from civil liability only if the product were sold or donated at a price that does not exceed the cost of production.
  2. Create liability protections for health care professionals acting to address the COVID-19 during the public health emergency. To be immune from liability, actions must be in good faith or be consistent with state or federal guidance related to the public health emergency.

WCJC worked with the Legislature on including protections for healthcare providers and their employees. However, WCJC opposed the unnecessary limitations on the civil liability limitations for manufacturers of PPE and COVID-19 treatment equipment. WCJC also encouraged the Legislature to enact civil liability protections for employers keeping their workers and workplaces safe and for persons rendering aid. Those provisions were not included in the final legislation. (WCJC memo on liability protections in Wisconsin COVID-19 legislation.)

Democrats offered several amendments to the bill, including one that would remove the provision providing immunity for health care providers acting in good faith in response to the public health emergency. That amendment was tabled on a party line vote with no discussion.

After voting on amendments, the bill passed 97-2, with Reps. Jonathan Brostoff (D-Milwaukee) and Marisabel Cabrera (D-Milwaukee) the only no votes.

Karofsky Wins State Supreme Court Election

Posted on by Hamilton

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.

 

 

 

States, Federal Government Seek to Curb Coronavirus Lawsuits

Posted on by Hamilton

As COVID-19 strains the health care system and economy, lawsuits related to the coronavirus are already beginning. Some states and the federal government are taking action to limit liability for businesses and health care workers acting in good faith to help address the pandemic. WCJC is working with Wisconsin legislators to do the same. President of the U.S. Chamber Institute for Legal Reform (ILR) Harold Kim has stated that “limiting litigation abuse is essential to ensuring the stability and economic recovery from COVID-19.”

Already, lawsuits related to COVID-19 have been filed across the country. Legal Newsline recently reported on plaintiff attorneys looking to cash in on the pandemic. Litigation targets range from false advertising claims to medical malpractice lawsuits to securities lawsuits.

  • A lawsuit has been filed against the maker of Purell hand sanitizer, alleging the claim that Purell sanitizer kills 99.9 percent of germs is misleading. Similar false advertising claims have been filed against drug manufacturers, and manufacturers of protective equipment could also be at risk.
  • USA Today recently reported on lawsuits against cruise lines, colleges, and insurers.
  • Employees, including some government employees and workers at essential businesses, are suing their employers arguing they were exposed to coronavirus.
  • Businesses are seeing price gouging complaints from private parties and state attorneys general.
  • Health care providers are suing their hospitals and clinics for failing to provide personal protective equipment. Patients are in turn suing their health care providers for medical malpractice.
  • At least two securities lawsuits have already been filed by shareholders about stocks decreasing in value due to COVID-19.
  • Legal Newsline has reported that grocery stores and pharmacies could be the next target of litigation.
  • Consumers are filing lawsuits when they are unable to obtain refunds for services no longer offered due to the pandemic, such as gym memberships, tuition payments, and events.
  • Thousands of banks have stated hesitations about participating in the federal government’s small business loan programs due to concerns about taking on legal responsibility for preventing fraudulent claims.
  • The National Law Journal predicts False Claims Act litigation will likely follow the passage of the federal CARES Act stimulus package. (WCJC successfully advocated for the repeal of Wisconsin’s False Claims Act in 2015 and successfully helped remove provisions in Gov. Evers’ 2019-21 state budget that would have revived false claims lawsuits.)

ILR President Kim said this early litigation is just “the tip of the iceberg.”

States including New York, Kentucky and Michigan have already taken bipartisan action to protect health care workers fighting COVID-19 on the frontlines from frivolous lawsuits. Protecting providers from liability will allow those treating COVID-19 patients to act quickly and effectively without fear of facing expensive lawsuits when they are acting in good faith. Liability protections will give providers flexibility to treat more patients and treat them in innovative ways during this crisis.

WCJC is looking at enacting similar provisions in Wisconsin, as well as working with Wisconsin Manufacturers & Commerce on provisions to protect manufacturers of personal protective equipment and employers who are working to keep their essential employees safe.

Some liability reforms to protect businesses during COVID-19 have already passed at the federal level. The Families First Coronavirus Response Act (FFCRA) included liability protection for N95 face mask manufacturers. After passage of the bill 3M said it will almost double production of the masks to make 2 billion this year.

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 DOJ Actions on COVID-19

Posted on by Hamilton

Since the outbreak of the COVID-19 pandemic, Wisconsin Attorney General Josh Kaul has taken several actions to address the crisis. Below is a timeline of the Department of Justice’s (DOJ) response:

 March 31, 2020. DOJ, representing Gov. Evers, submitted a brief asking a federal court 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. Read about the outcome of the case and more election lawsuits here.

AG Kaul also warned Wisconsinites to be alert to COVID-19 marketing scams.

 March 27, 2020. AG Kaul and the Wisconsin Department of Financial Institutions warned consumers about charity scams related to COVID-19.

 March 26, 2020. AG Kaul joined 27 attorneys general in a letter to U.S. Secretary of Education Betsy Devos, seeking emergency measures to protect student loan borrowers during the COVID-19 economic downturn.

Another multistate coalition sent a letter to President Donald Trump, requesting the federal government end the ban on scientists working with fetal tissue. The coalition argued that rescinding the ban would help accelerate COVID-19 vaccine development.

 March 24, 2020. AG Kaul led a multistate coalition in sending a letter to President Donald Trump, asking the President to utilize the Defense Production Act to prioritize production of personal protective equipment and other critical items to fight the pandemic. DOJ also issued guidance about consumer rights under Wisconsin’s price gouging statutes.

 March 16, 2020. AG Kaul warned Wisconsin residents of COVID-19 scams and price gouging. DOJ also issued an advisory on Wisconsin’s open meeting laws in light of COVID-19.

 

For more information on COVID-19 in Wisconsin, please visit https://www.hamilton-consulting.com/covid-19-in-wisconsin/.

 

Read about other multistate actions by AG Josh Kaul.