On August 13th, the California Court of Appeals ruled Amazon strictly liable for for injuries sustained by a customer from a defective products purchased in “marketplace” sales on its site.
Category: Editorials
WCJC Joins Support for Federal “SAFE TO WORK Act.”
On July 30th, the Wisconsin Civil Justice Council signed on in support with the U.S. Chamber of Commerce urging Congress to create COVID-19 liability protections for businesses and schools who comply with applicable government health and safety standards. You can read the full letter of support here.
As the letter noted: “These crucial protections would safeguard healthcare workers, providers, and facilities, as well as businesses, non-profit organizations, and educational institutions against unfair lawsuits so they can continue to contribute to a safe and effective economic recovery from the COVID-19 pandemic.”
The bill is being pushed by U.S. Senate Majority Leader Mitch McConnell for inclusion in the next round of federal COVID-19 legislation.
Wisconsin Supreme Court 2020-21 Term Begins August 1 with Karofsky in, Kelly out.
Wisconsin’s Supreme Court 2020-21 term began August 1, 2020, with initial oral argument set for September 8. Go here for a list of cases to be heard in September and here for the 2020-21 court calendar.
With the new term brings in a significantly different court. Conservative Justice Daniel Kelly is replaced by liberal Justice Jill Karofsky. Karofsky was sworn in August 1 on the 35-mile mark in what would have been a 100-mile competitive race.
Patience Drake Roggensack will sit as Chief Justice during the 2020-21 term, filling out her third consecutive two-year term as chief justice. Roggensack was the first justice chosen to serve as chief justice since a 2015 constitutional amendment that required the chief justice be elected for a term of 2 years by a majority of the justices rather than by seniority.
Wisconsin Supreme Court Accepts New Cases
The Wisconsin Supreme Court accepted three new cases this past week. Of particular note: Stroede v. Society Insurance and Village of Slinger v. Polk Props., LLC.
In Stroede v. Society Insurance (2018AP1880/2018AP2371), the Court of Appeals, District I found the defendant immune from liability for a trespasser’s injury because the defendant was a “lawful occupant” on the premises where the incident occurred. The Supreme Court will address the issue of the meaning of “lawful occupant” as used in Wis. Stat. § 895.529, Civil liability limitation; duty of care owed to trespassers.
Meanwhile, in Village of Slinger v. Polk Properties, LLC (2017AP2244), the Court of Appeals District II held that agricultural use of a residentially zoned property was not a legal nonconforming use, so the village was entitled to recover daily forfeitures and the value of residential taxes on the land. The case arises from the same underlying facts addressed in the 2018 Supreme Court decision Thoma v. Village of Slinger.
In this case, the Supreme Court will address whether Polk affirmatively abandoned the the right to a non-conforming land use on the property and whether the trial court could require a reassessment of property taxes as damages, among other possible errors.
Gov. Evers Issues Executive Order Declaring Public Health Emergency and Requiring Face Coverings Statewide
Governor Evers today declared a public health emergency effective for the next 60 days (or until it is revoked by Governor Evers or by action of the Legislature). Pursuant to the declaration, the Governor issued a statewide requirement for all persons to wear masks. The statewide mask requirement goes into effect at 12:01 a.m. on Saturday, August 1, 2020, and expires on September 28, 2020, or by a subsequent superseding emergency order. We anticipate a legal challenge will be filed.
Under the statewide mask requirement: “[e]very individual, age five and older, in Wisconsin shall wear a face covering if both of the following apply:
- The individual is indoors or in an enclosed space, other than at a private residence; and;
- Another person or persons who are not members of individual’s household or living unit are present in the same room or enclosed space.”
“Enclosed space” includes – but is not limited to – outdoor bars, outdoor restaurants, taxis, public transit, ride-share vehicles, and outdoor park structures.
There are exceptions, detailed in the statewide requirement, for activities such as while eating or drinking or “[w]hen engaging in work where wearing a face covering would create a risk to the individual, as determined by government safety guidelines.”
The statewide requirement specifically supersedes any local order that is less restrictive. In addition, the requirement specifically states local governments may issue orders more restrictive than the statewide requirement.
The statewide requirement is order is enforceable by civil forfeiture of not more than $200.
Declaration of Public Health Emergency (Executive Order #82)
Statewide Mask Requirement (Emergency Order #1)
PSC Extends Utility Shut-Off Moratorium
On July 24, the three-person Public Service Commission (PSC) voted 2-1 to extend the utility shut-off moratorium for only residential customers until September 1. In June, the Commission decided to lift the moratorium and utility disconnections were scheduled for delinquent customers starting on July 25. The moratorium was originally implemented by Governor Evers in March in response to the COVID-19 pandemic and high unemployment rates and originally applied to all customer classes, including commercial and industrial.
The Commission decided to revisit the issue again during their August 20 meeting. The PSC will continue to require utilities submit disconnection plans and other customer data including specifics on disconnection notices, arrears balances and deferred payment agreements. It is estimated that roughly 70,000 customers could have faced a utility shut-off if the Commission did not extend the moratorium.
The Commission will take comments from interested organizations regarding the utility shut-off moratorium in advance of their August 20 meeting.
COVID-19 Liability Update
Wisconsin Civil Justice Council and its partners continue to push for liability protections for Wisconsin businesses as they reopen amid the COVID-19 pandemic. (See this column from WCJC President and National Federation for Independent Business Wisconsin State Director Bill G. Smith, which was featured on the U.S. Chamber Institute for Legal Reform blog and MacIver Institute.)
Wisconsin’s Legislative Council recently issued a brief on businesses’ use of COVID-19 liability waivers. The report notes that Wisconsin courts are “generally skeptical of liability waivers” and would likely refuse to uphold them in future cases. With individual liability waivers likely off the table, it is even more important for Wisconsin to enact state level liability protections for Wisconsin businesses facing COVID-19 lawsuits.
As of early June, at least 2,700 COVID-19 related complaints have been filed across the U.S., according to JD Supra. Insurance complaints make up a large percentage of cases, as well as consumer complaints and labor and employment complaints. Meanwhile, mass tort advertising has increased amid the pandemic.
Stay tuned for more updates from WCJC on efforts to protect businesses from frivolous COVID-19 lawsuits.
WSBU v. Brennan & Bartlett v. Evers (Gubernatorial Vetoes)
Released on the same day, WSBU v. Brennan (2020 WI 69) and Bartlett v. Evers (2020 WI 68) both involved challenges to gubernatorial vetoes. The court dismissed WSBU v. Brennan but declared 3 of the 4 challenged vetoe groupings in Bartlett v. Evers unconstitutional.
Under the Wisconsin Constitution (Article V, Section 10), governors can partially veto provisions in appropriation bills, including biennial budget bills. Some limitations exist: a governor cannot partially veto individual letters to create a new word or create a new sentence by combining parts of two or more sentences. But otherwise, the Wisconsin Constitution gives the governor very broad veto authority.
WSBU v. Brennan
WSBU v. Brennan involved a challenge to two vetoes made by Governor Walker in the 2017-19 biennial budget. First, Governor Walker struck the “1, 2” from “December 31, 2018” (December 31, 2018), effectively delaying implementation of the provision to December 3018, or roughly a thousand years. In the second case, he struck a 1, 2, and 0, turning an implementation date of July 1, 2017 2018 to July 1, 2078, delaying it around 60 years.
Though it accepted it the Wisconsin Supreme Court declined to decide the case, choosing instead to dismiss it under “the equitable doctrine of laches”—which basically means WSBU waited too long to bring the case.
The court walked through a three-prong test where it considered the time it took to bring the case, the availability of notice that a lawsuit was coming, and potential reliance problems with overturning a completed budget. It concluded all these factors against WSBU.
Justice Rebecca Bradley, joined by Justice Kelly, dissented, arguing that the majority wrongly relied on the laches doctrine since the case involved a clear constitutional violation and that by taking the case, the court effectively agreed to decide it. No action previously implied budget veto challenges could only come while the budget was effective, and WSBU rightly expected the court to consider the merits of the case. Justice Bradley then went on to analyze the merits in her dissent, where she concluded that the vetoes were unlawful.
Bartlett v. Evers
Bartlett v. Evers involved challenges to four groups of vetoes by Governor Evers in the 2019–21 biennial budget. No majority opinion arose, but a majority of the justices did find three of the four vetoes unconstitutional. (They just did not agree why.)
Veto 1: The School Bus Modernization Fund
A series of vetoes changed a school bus modernization fund into an alternative fuel fund. Chief Justice Roggensack and Justices Ziegler, Rebecca Bradley, Kelly and Hagedorn found the vetoes unconstitutional.
Veto 2: The Local Roads Improvement Fund
Another series of vetoes removed conditions from a local road improvement fund, effectively changing it into a fund for “local grants” or “local supplements.” Chief Justice Roggensack and Justices Ziegler, Rebecca Bradley, Kelly and Hagedorn found the vetoes unconstitutional.
Veto 3: The Vapor Products Tax
Yet another veto altered a section that imposed a tax on “vapor products” by expanding the definition of vapor product to include liquid heated by a vaping device. Justices Ziegler, Rebecca Bradley, Kelly and Hagedorn found it unconstitutional.
Veto 4: The Vehicle Fee Schedule
Finally, another series of vetoes altered a vehicle fee schedule by changing the amount truck owners must pay to register their vehicles. Chief Justice Roggensack and Justices Ann Walsh Bradley, Ziegler, Dallet and Hagedorn found it constitutional.
Chief Justice Roggensack wrote about the vetoes:
¶11 “I conclude that the part approved by the governor, i.e., the consequences of the partial veto, must not alter the topic or subject matter of the “whole” bill before the veto. Stated otherwise, such a veto does not alter the stated legislative idea that initiated the enrolled bill. Therefore, Governor Evers could not use his partial veto power to change the school bus modernization fund into an alternative fuel fund.”
Justice Ann Walsh Bradley dissented from this position, stating:
¶115 “I would instead turn to and uphold our well-established precedent. It recognizes, time and again, that the Wisconsin governor’s veto power is incredibly broad… I conclude that our precedent inexorably leads to the determination that all four vetoes at issue…are constitutionally permissible exercises of the partial veto power.”
Justice Kelly agreed with Chief Justice Roggensack’s premise but took it farther, arguing the legislative veto has been interpreted wrong almost from the start, and that the ¶180 “powers of amending and vetoing are different things.” Amending belongs only to the legislature. Any action to that effect using the veto was unconstitutional.
Justice Hagedorn echoed some of Justice Kelly’s arguments about legislative law making, but did not take it as far, stating instead:
¶234 “While the governor’s partial veto power is incredibly broad, it should not be read to fundamentally upend the overall structure of our government embedded in our constitution. The constitution’s placement of law-creation in the hands of the legislature means we cannot permit a practice that turns the governor into a one-person legislature.”
SEIU Local 1 v. Vos (Separation of Powers)
In SEIU Local 1 v. Vos (2020 WI 67) the Wisconsin Supreme Court upheld provisions from 2017 Wis. Act 369 and 2017 Wis. Act 370 (including legislative involvement in litigation, legislative review of proposed changes to security in the capitol, temporary suspension of administrative rules, and the codification of the non-deference doctrine from Tetra Tech v. DOR, 2018 WI 75) as facially constitutional, with the exception of sections that attempted to give legislative control of guidance documents, which was found to be unconstitutional.
Facts:
After the 2018 election, and prior to the change in governor, the Wisconsin legislature passed 2017 Wis. Act 369 and 2017 Wis. Act 370. These bills limited the powers of the Attorney General, as well as administrative agencies, while giving the legislature more oversight over both. The bills were signed into law by Governor Walker and were challenged as facially unconstitutional.
Decision:
This was a unique decision, as it had two separate majority opinions; one written by Justice Hagedorn, and the other by Justice Kelly. Justice Hagedorn’s opinion upheld the facial constitutionality of all the provisions that were properly challenged and briefed. It is important to note that the challenge to the statutes were facial only, which means that SEIU was responsible for showing that these statutes have no possible, legitimate constitutional application. This is a hard burden to meet, and as such the challenge to the statutes all failed with one exception.
Justice Kelly’s opinion struck down one portion of the statutes as unconstitutional. Focusing on the separation of powers, Justice Kelly found the Legislature’s attempt to regulate guidance documents from administrative agencies was a violation of the separation of powers. Justice Kelly makes clear that guidance documents have absolutely no force of law behind them, and therefore are only the executive’s thoughts about particular laws or applications of the law. Because they are simply “thoughts”with no power behind them, it violates separation of powers for the legislature to attempt to regulate the thoughts of the executive.
Concurrences and Dissents
As stated before, this was a unique decision. Hagedorn’s opinion was joined unanimously in small part, with the rest of his opinion joined by Roggensack, Ziegler, Rebecca Bradley, and Kelly,with Ann Walsh Bradley and Dallet dissenting. Kelly’s opinion was joined by Ann Walsh Bradley, Rebecca Bradley, and Dallet, with Roggensack and Hagedorn dissenting. Ann Walsh Bradley and Dallet would have held most all of the statutes as unconstitutional. While both Hagedorn and Roggensack took issue with Kelly’s finding of guidance documents as solely within the power of the executive.
Latest AG Actions: AG Kaul Opposes Trump Administration Education Proposals, Infrastructure Permitting Deregulation
Wisconsin Attorney General Josh Kaul recently joined multistate coalitions opposing moves by President Trump’s administration amid COVID-19.
On June 29, Kaul joined a coalition of 15 state attorneys general in a letter opposing President Trump’s executive order on expediting infrastructure investments during COVID-19. Trump issued Executive Order 13927 on June 4, instructing federal agencies to use emergency authority to bypass some regulations to speed up infrastructure projects and facilitate economic recovery. In their letter of opposition, the AGs argue that agencies cannot use their emergency powers to bypass the environmental reviews unless there is an immediate threat to public health. As such, the AGs request the withdrawal of the executive order.
On July 7, Kaul joined five attorneys general in a multistate lawsuit challenging the U.S. Department of Education’s promulgation of a rule allow private schools to utilize federal corona virus relief funding in the CARES Act. The AGs argue that the Department misinterpreted CARES Act requirements and thus the rule should be permanently enjoined
On July 13, Kaul joined a coalition of 18 attorneys general in a lawsuit challenging U.S. Immigration & Customs Enforcement’s (ICE) directive that international students may not live in the U.S. and take all their classes online.The lawsuit claims the directive is arbitrary and capricious, is in violation of the Administrative Procedure Act, and imposes significant economic harms and health risks on international students and universities. UW System President Tommy Thompson said he fully supported Kaul’s actions on the ICE rule. The Trump administration withdrew the rule on July 14.