Author: Hamilton

President Trump Nominates Judge Neil Gorsuch to Supreme Court

Posted on by Hamilton

Neil Gorsuch, a 49-year-old appellate judge in Colorado, was appointed to the Supreme Court by President Trump on Tuesday. Born in Denver, Colorado, Judge Gorsuch attended Georgetown Preparatory School in Washington, D.C. while his mother led the Environmental Protection Agency under President Reagan. He completed his undergraduate degree at Columbia University and went on to graduate in the same class as President Obama at Harvard Law School in 1991. He additionally received his doctorate at Oxford University, where he was a Marshall Scholar.

In the legal realm, Judge Gorsuch has clerked for Judge David B. Sentelle of the D.C. Circuit Court of Appeals, Supreme Court Justice Byron White, and current Supreme Court Justice Anthony Kennedy.  He practiced law in Washington, D.C. at a large firm for 10 years and additionally served as principal assistant to the deputy attorney general in the Department of Justice before being appointed to the 10th Circuit Court of Appeals in Colorado by President George W. Bush in 2006. In announcing Judge Gorsuch as his Supreme Court nominee on Tuesday, President Trump sought to appoint a legal conservative to fill the late Justice Antonin Scalia’s seat. If appointed, Judge Gorsuch will serve as the 113th justice of the Supreme Court of the United States.

Leak of John Doe Documents Being Looked at by AG

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In what appears to be a targeted leak aimed at Gov. Walker, the Guardian US published sealed Wisconsin court documents from the controversial John Doe investigation. It has been reported that over six million records were seized in the politically driven investigation. The leak involved 1,350 records.

Assembly Speaker Robin Vos and other GOP leaders requested Attorney General Brad Schimel appoint a special prosecutor to “investigate this apparent violation of Supreme Court order and state law.” TheSeptember 15 letter notes that “should this potential crime go unprosecuted it runs the risk of undermining the integrity of our courts and judicial system.”

In an interview posted on September 23, Schimel noted that DOJ does not have the power to appoint a special prosecutor on its own. That authority resides in the courts, particularly the judge overseeing the John Doe.

In a related development, the Wisconsin Democracy Campaign filed a formal complaint with the IRSalleging that Wisconsin Club for Growth violated IRS regulations. The complaint alleges that the group engaged in deceptive and improper fundraising practices and that engaging in political campaigns was its “primary activity” that contravened the group’s tax-exempt status.

AG Schimel Files Complaint Against New DOL Overtime Rule

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On Sept. 20, Wisconsin Attorney General Brad Schimel joined a bipartisan coalition of states in filing a federal complaint against the U.S. Department of Labor’s new overtime rule. The complaint cites federal overreach by DOL and asks the court to prevent implementation of the rule before it is scheduled to take effect on Dec. 1.

The rule, released in late May, would double the salary threshold for “white collar” workers who are exempt from overtime pay from $23,660 to $47,476. According to the rule, the new threshold will automatically increase every three years. DOL estimates the threshold will be $51,168 in 2020. Once implemented, the changes would impact 4.2 million salaried workers.

Business groups say the new rule will force millions of salaried professionals to be reclassified as hourly wage workers. They argue that small businesses, nonprofits, and public sector employers will be especially hurt. The U.S Department of Labor estimates businesses will end up paying workers an additional $1.3 billion a year.

In its fact sheet explaining the rule, DOL provides businesses a “choice” under the new rule:

  1. Increase their employees’ salaries to the $47,476 threshold.
  2. Pay workers the time-and-a-half overtime premium for every hour beyond 40 per week.
  3. Limit workers to a 40-hour work week.

Some groups assert that market considerations over time will prove the paycheck benefits an illusion. To curb costs, some businesses will simply forbid employees from working over 40 hours. They may also have to cut back other expenses such as non-cash benefits or suppress the base pay itself.

Wisconsin joins 20 other states in this complaint, which was filed in Texas on Tuesday, including Alabama, Arizona, Arkansas, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Michigan, Mississippi, Nebraska, Nevada, New Mexico, Ohio, Oklahoma, South Carolina, Texas and Utah.

Department of Justice Submits Budget Request

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Attorney General Brad Schimel submitted the Department of Justice (DOJ) 2017-19 budget request to Governor Walker on September 15, 2016. Including all funding sources, DOJ’s request is a 6.2 percent increase over the base fiscal year (2016-17) doubled. This increase amounts to $6.6 million in new general purpose revenue (GPR) over the biennium.

The largest cost drivers for the additional funding request are due to legislation that passed in the 2015-2016 session. 2015 Wisconsin Act 388 provided a funding increase to county grants for the Treatment Alternative and Diversion (TAD) program. The TAD program provides options for offenders for voluntary substance abuse treatment, case management, and other services, instead of incarceration. DOJ’s budget request includes $2 million in each year of the biennium to expand the TAD program.

DOJ’s budget request includes $1.5 million over the biennium for the cost-to-continue of overtime and training for local and state Internet Crimes Against Children (ICAC) taskforces. The additional investment for ICAC taskforces and staff is a result of 2015 Wisconsin Act 369, otherwise known as Alicia’s Law.

In addition to additional funding, DOJ’s request establishes an appropriation for new officer training and officer recertification training reimbursement to local law enforcement agencies. DOJ states that this change will ensure the training reimbursements are fully funded going forward.

Outside of his agency’s budget, Attorney General Brad Schimel asks in his budget letter that the governor address the staffing levels and compensation for District Attorneys. The District Attorneys submitted a separate budget request that included funding for a pay progression for assistant attorney generals and adds 96.3 positions across the state.

Supreme Court Justice Annette Ziegler Announces “Likely” Run for Second Term

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Wisconsin Supreme Court Justice Annette Ziegler announced she will “likely” run for re-election in April 2017. The conservative justice already claims endorsements of 48 sheriffs and 30 district attorneys.

Among others, her steering committee will include former Gov. Tommy Thompson, former Lt. Gov. Margaret Farrow, and former Wisconsin Supreme Court Justice John Wilcox. Her Sept. 20 preannouncement states that her formal announcement will be made later this year. She has over $200,000 cash in hand in her campaign account.

With Gov. Walker’s July 22 appointment of attorney Daniel Kelly, the Wisconsin Supreme Court has a 5-2 conservative majority. Justice Kelly is serving out the remaining term of former Justice David Prosser who resigned earlier this year. Kelly will face re-election in 2020. Conservative Justice Michael Gableman is next up after Ziegler, with his term expiring in 2018.

Former Chief Justice Shirley Abrahamson, initially appointed in 1976 by Gov. Pat Lucy, has her latest 10-year term ending in 2019.

Suit Challenging Wisconsin “Minimum Markup Law” Filed

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On Tuesday, August 23, 2016, the Wisconsin Institute for Law & Liberty (WILL) filed a lawsuit in Vilas County Circuit Court on behalf of plaintiffs Krist Oil and Robert Lotto challenging the constitutionality and legality of s. 100.30 of the Wisconsin statutes, Wisconsin’s Minimum Markup Law. Krist Oil is an independent, family-owned Michigan corporation having its principal place of business in Iron River, Michigan. Mr. Lotto is a Wisconsin citizen who regularly purchases gasoline, including gasoline from Krist Oil.

The lawsuit alleges the state’s Minimum Markup Law

(1) violates the Wisconsin Constitution’s Due Process Clause, which states “[a]ll people are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness,” because the law “arbitrarily and irrationally prevents Plaintiff Krist Oil from charging appropriate and non-predatory prices in connection with its business and from freely operating an otherwise lawful business in a manner that is in its own best interest and the best interest of its customers” and that “Wisconsin has no compelling, substantial, or legitimate government interest in regulating minimum prices, even prices below some measure of costs, except where such prices could result in an actual and persistent adverse effect on competition.”

(2) violates the Wisconsin Constitution’s guarantee of equal protection of the law because the law “creates irrational and arbitrary classifications. Businesses that sell gasoline must mark that product up 9.18%. Businesses that sell alcohol or tobacco must mark those products up 6%. Businesses that sell any other product only have to sell their products above “cost.” There is no rational reason for forcing retailers to sell certain products at a specified percentage above “cost” when other products do not have the same requirements. There is no reasonable basis for those classifications and they serve no legitimate government purpose.”

Matt Hauser, on behalf of the Wisconsin Petroleum Marketers & Convenience Store Association(WPMCA), expressed confidence the law will be upheld and said the law “ensures that Wisconsin’s independent petroleum retailers can continue to provide their customers with a competitively priced product.”

A spokesman for Wisconsin Attorney General Brad Schimel said the Department of Justice plans to defend the state in the lawsuit.

Under s. 100.30 of the Wisconsin statutes, sales of merchandise below cost are generally prohibited. In addition, alcohol or tobacco products may not be sold less than cost, with the definition of cost including, as paraphrased by the Department of Agriculture, Trade and Consumer protection, “a presumptive 3% markup by wholesalers and presumptive 6% markup by retailers.”  Sales of motor vehicles fuels, again as paraphrased by the Department of Agriculture, Trade and Consumer protection, “the definition of ‘cost’ relies on the ‘average posted terminal price’ and includes a 9.18% markup over this amount.”

 

Related Items:

WILL Video Overview of Lawsuit

WPMCA Press Release

Walker Appoints Daniel Kelly to Wisconsin Supreme Court

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On Friday, July 22, Gov. Walker appointed attorney Daniel Kelly to the Wisconsin Supreme Court to replace retiring Justice David Prosser. Gov. Walker selected Kelly over the two other finalists, appeals court judges Thomas Hruz and Mark Gundrum.

Kelly is a founding partner and commercial litigator at the Milwaukee law firm Rogahn Kelly. Before starting the firm, Kelly worked for 15 years as a lawyer at the firm Reinhart Boerner Van Duren.

The Waukesha attorney has litigated cases before the U. S. Court of Appeals for the 7th Circuit in Chicago, the Wisconsin Supreme Court and the U. S. Supreme Court. Like outgoing Justice David Prosser and Justice Shirley Abrahamson, Kelly comes to the high court without any previous judicial experience.

In his career, Kelly served on the legal team that defended the 2010 Republican-drawn legislative maps before a panel of federal judges. Kelly has also served as an attorney to Justice David Prosser’s campaign during a 2011 recount after a close election against opponent Joanne Kloppenburg. Most recently, Kelly served as an advisor to Justice Rebecca Bradley’s 2016 campaign.

Kelly currently serves as President of the Milwaukee chapter of the Federalist Society and on the litigation advisory board for the Wisconsin Institute for Law and Liberty. Additionally, Kelly is on the state’s advisory board to the U. S. Commission on Civil Rights.

Many insiders view this as a legacy pick for Gov. Walker. Daniel Kelly will hold the seat until he is up for election in April 2020 and could potentially sit on Wisconsin’s high court for decades. The next Wisconsin Supreme Court justice up for re-election is Annette Ziegler in 2017. Justices Michael Gableman and Shirley Abrahamson follow in 2018 and 2019, respectively.

Prosser, who announced his retirement in early May, has served on the court since 1998 after being appointed by Gov. Tommy Thompson. Prosser then went on to win re-election in 2001 and 2011. He also served in the Assembly from 1979 to 1997 and spent two years as Speaker. Prosser’s last day on the bench will be July 31.

Supreme Court Finalists Narrowed to Three

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After the second round of interviews in late June, Gov. Scott Walker announced the final three contenders for the Supreme Court appointment. The three finalists include: Appeals Court judges Mark Gundrum, Thomas Hruz and attorney Daniel Kelly.

Judge Mark Gundrum was appointed by Walker in 2011 to the Wisconsin District II Court of Appeals. Prior to his appointment, Gundrum served as Waukesha circuit court judge from 2010 to 2011 and was a state representative from 1998 to 2010. Daniel Kelly is an attorney at Milwaukee law firm Rogahn Kelly and served on Justice Rebecca Bradley’s campaign. Judge Thomas Hruz was appointed by Walker in 2014 to the Wisconsin District III Court of Appeals. Before his appointment, he was an attorney at Meissner Tierney Fisher & Nichols in Milwaukee.

The three finalists are vying to replace outgoing Justice David Prosser, who is retiring at the end of July. Gov. Walker has stated he hopes to have a replacement selected by this time. The applicant selected by Walker will hold the seat until the April 2020 election. Many consider this to be a legacy appointment by Walker considering a younger selection may sit on the state’s highest bench for over three decades.

Applicant Field for Supreme Court Vacancy Narrowed

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Gov. Scott Walker narrowed the field of Supreme Court applicants from 11 to five after the first round of interviews took place on June 13. The five finalists include: Appeals Court judges Mark Gundrum and Thomas Hruz, Jefferson County Judge Randy Koschnick, Marinette County Judge James Morrison, and attorney Daniel Kelly.

Milwaukee area attorney Daniel Kelly previously requested his name be kept confidential until the list of finalists was released.

Those who did not make it to the second round of interviews include: Appeals Court Judge Brian Hagedorn, Public Service Commission Chair Ellen Nowak, attorney Claude Coveli and former Dane County Judge Jim Troupis.

The five finalists are vying to replace retiring Justice David Prosser, whose last day on the bench will be July 31. Gov. Walker has stated he hopes to have a replacement selected by this time. The applicant selected by Walker will hold the seat until it opens for an April 2020 election. Many consider this to be a legacy appointment by Walker considering some of the younger applicants may sit on the state’s highest bench for over three decades.

The finalists are:

  • Judge Mark Gundrum, Wisconsin District II Court of Appeals, appointed by Walker in 2011. Served as Waukesha circuit court judge from 2010 to 2011 and was a state representative from 1998 to 2010.
  • Attorney Daniel Kelly from Milwaukee, served on Justice Rebecca Bradley’s campaign.
  • Judge Thomas Hruz, Wisconsin District III Court of Appeals, appointed by Walker in 2014.
  • Judge Randy Koschnick, Jefferson County Circuit Court. Koschnick served as a public defender prior to his election to the Jefferson County Circuit Court, and ran against Wisconsin Supreme Court Justice Shirley Abrahamson in 2009.
  • Judge James Morrison, Branch 2 of the Marinette County Circuit Court, appointed by Walker in 2012.

AG Opinion Validates Act 21 Limits on Agency Authority

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On May 10, 2016, Attorney General Brad Schimel issued a formal opinion finding that 2011 WI Act 21requires explicit delegation of authorities to agencies, making it clear that regulatory mandates may no longer arise from implied authority.

Whether enacting rules, imposing permit conditions, or exercising public trust authority, the Department of Natural Resources (DNR) and other agencies must point to explicit statutory delegations or their actions are legally void and unenforceable.

Key excerpts from the 23-page opinion include:

  • “Act 21 makes clear that permit conditions and rulemaking may no longer be premised on implied agency authority.”[1]
  • Given the lack of explicit authority in the statutes, “a monitoring well condition on a high capacity well permit is prohibited and unenforceable.”[2] Similarly, DNR lacks authority to require cumulative impact analysis as a well permit condition.
  • “[M]uch of the [Wisconsin Supreme] Court’s reasoning in Lake Beulah, including the breadth of the DNR’s public trust authority. . . , is no longer controlling.”[3]

The AG Opinion is significant, but also is consistent with prior positions taken by the AG’s Office, DNR, and by the court in the New Chester case[4]. One issue clarified by Schimel was that a key Act 21 provision, Wis. Stat. § 227.10 (2m), is not retroactive. Act 21’s effective date is June 8, 2011. Thus, any standard, requirement, or threshold, including permit terms, issued on or after June 8, 2011, must be tethered to explicit statutory or rule language. And draft rules submitted to the Legislative Council (before the public hearing) on or after that date must also arise from explicit statutory authority.

Hamilton Consulting represented several clients in advancing Act 21. Through the Great Lakes Legal Foundation, some of us were attorneys of record for business associations on the leading cases, including Lake Beulah[5], Rock-Koshkonong Lake Dist.[6], and New Chester.

For more on this issue, consider WMC’s June 22 Symposium: Act 21: The Demise of Implied Agency Authority.

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[1] OAG-01-16 (May 10, 2016), p. 15, ¶29.

[2]Id. p. 22, ¶50.

[3] Id. P. 8, ¶16

[4] New Chester Dairy v. DNR, No. 14CV1055 (Wis. Cir. Ct. Outagamie Cty. Dec. 2, 2015).

[5] Lake Beulah Management District v. Department of Natural Resources, 2011 WI 54, 3355 Wis. 2d. 47 (2011).

[6] Rock-Koshkonong Lake Dist. V. DNR, 2013 WI 74, 350 Wis. 2d 45 (2013)