Month: September 2017

Assembly Holds Hearing on Bill Putting Expiration Dates on Rules

Posted on by Hamilton

With respect to regulatory reform, the governor’s small business agenda includes legislation that would sunset all regulations every seven years. He was referencing AB 384/SB 295, authored by Sen. Alberta Darling (R-River Hills) and Rep. Jim Steineke (R-Kaukauna).

On Sept. 19, the Assembly Committee on Regulatory Licensing Reform held a hearing on AB 384. Among other business groups supporting the legislation, WMC’s testimony noted that “once a regulation is promulgated it stays in the books indefinitely.” The bill creates an expedited process for rule promulgation and legislative review, for existing and new regulations.

The bill requires that the legislature set a seven-year schedule to review every existing regulatory code chapter. Only if the legislature requests “re-adoption” would the existing rule be required to be promulgated again or face expiration. Such a review presents a daunting challenge for the legislature and agencies. For example, the Department of Natural Resources (DNR) alone has 385 individual code chapters, consisting of over 4,500 pages. There are 76 departments, commissions, and boards in Wisconsin with regulations contained in Wisconsin’s Administrative Code.

Lawsuit and Regulatory Reform on Gov. Walker’s Small Business Agenda

Posted on by Hamilton

On Sept. 26, Gov. Walker set forth his small business agenda while hosting the seventh annual Small Business Summit. His plan to improve Wisconsin’s business climate includes lawsuit and regulatory reform.

At the summit, the governor renewed his commitment “to enact lawsuit reforms to protect small businesses.” According to the National Federation of Independent Businesses, a typical small business is six times more likely to be sued than to sue.

The Wisconsin Civil Justice Council (WCJC) hailed the renewed commitment to litigation reform, with WCJC President Billy G. Smith noting “the easiest way to lower litigation costs for everyone, including large and small businesses, state and local governments, plaintiffs and defendants, is to address the escalating transaction costs associated with discovery.”

A recent study found that most of the documents retrieved in discovery are never submitted as evidence. In 2008, for example, of the close to 5 million pages of documents produced in discovery in major cases that went to trial, only 4,772 exhibit pages were marked. That means over 99.9 percent of those documents retrieved were never used. “That is an incredible waste of time and money,” according to Smith.

Supreme Court and Governor Eliminate Funding for Judicial Council

Posted on by Hamilton

Earlier this year, the Supreme Court sent an order to the Department of Administration (DOA) that it will no longer transfer funds to DOA in support of the Judicial Council. Separately, Gov. Scott Walker defunded the Council through a veto in the state budget.

The Supreme Court cited concerns about an “extraordinary” 38 percent salary increase for the Judicial Council staff attorney effective July 1 and the “means and manner” by which the increase was obtained. Justices Ann Walsh Bradley and Shirley Abrahamson dissented, arguing for the Judicial Council’s importance to Wisconsin’s judicial system.

The Judicial Council’s four-person executive committee met in June and voted to raise the Council’s only staff attorney April Southwick’s salary from $59,600 to $82,326. The Wisconsin State Journal reported that on August 1, Director of State Courts Randy Koshnick sent an email to DOA saying that under state law, the executive committee could not authorize a raise without a quorum of 11 council members. According to the Wisconsin State Journal article, in a later email to the Associated Press, Southwick said the raise was meant to increase her salary to the level of “a male judicial branch employee in a similar position.”

After the Supreme Court sent the order to DOA, Gov. Scott Walker issued a veto of provisions relating to the Judicial Council in the state budget. Walker had originally proposed eliminating the Judicial Council, but the Joint Finance Committee and the budget bill as passed by the legislature restored the Council. Walker’s veto did not eliminate the Council, but eliminated funding for the Council. The statute (20.670) creating the Judicial Council remains in place.

Bills of Note: Device Use While Driving

Posted on by Hamilton

Last week, the Assembly Committee on Criminal Justice and Public Safety held a public hearing on a bill that would prohibit using electronic devices while driving. The bill expands existing state law prohibiting texting and emailing while driving to include entering, transmitting, or accessing data via an “interactive electronic device.” These infractions would be categorized under “inattentive driving.” Exceptions to device usage include device use for reporting an emergency, verbal communication, navigation, and electronics integrated into the vehicle.

The committee hearing on the bill (AB 463/SB 380), authored by Rep. Ron Tusler (R-Harrison) and Sen. Van Wanggaard (R-Racine), took place on Sept. 21. At the hearing, Tusler said the bill’s expansion of distracted driving prohibitions and increased penalties would discourage the dangerous practice of cell phone use while driving and clarify that texting is considered negligent driving. Tusler said the exceptions give the bill some flexibility and mentioned the possibility of adding another exception for the use of electronic devices for medical needs.

Also testifying in favor of the bill was Rep. Shannon Zimmerman (R-River Falls), Wisconsin Association for Justice, Milwaukee Police Association, Wisconsin State Fire Chiefs Association, and Wisconsin Bicycle Federation. Also registered in favor of the bill are Wisconsin Chiefs of Police Association and Wisconsin EMS Association.

Throughout the hearing, lawmakers questioned the scope of the bill, asking, for example, whether the bill would apply to law enforcement, what would happen if a Bluetooth device stopped working mid-call, and if leaving apps open on your phone would count as “transmitting data.”

No groups testified against the bill, but Bob Fassbender testified on behalf of Wisconsin Civil Justice Council (WCJC) for information only. Fassbender agreed that the current law is too narrow to address the wide range of distractive driving while engaging electronic devices. But as drafted, according to Fassbender, the bill is overly broad and will create unintended and mostly unavoidable violations because too many non-exempt devices will be transmitting or accessing data while driving. Also, these violations will trigger the legal concept of negligence per se, making any defense an uphill battle at best.