Currently, judicial conservatives enjoy a 4-3 majority on Wisconsin’s elected supreme court. Justice Patience Roggensack, a judicial conservative, is not seeking reelection, creating a vacancy which will decide control of the court. The race will be hotly contested, attracting a significant amount of attention. The top two vote-getters in the February 21 primary will square off in the general election on April 4. The four candidates for the open seat on the Wisconsin Supreme Court met for a candidate forum on January 9.
Category: Wisconsin Supreme Court
State Supreme Court Appoints New Chief Appellate Judge
The Wisconsin Supreme Court has announced the appointment of a new chief appellate judge and the reappointment of five chief circuit court judges, effective August 1.
Graef v. Continental Indemnity Company (Worker’s Compensation Exclusive Remedy)
In Graef v. Continental Indemnity Company (2018AP1782), the Wisconsin Supreme Court held that an employee’s negligence claim was barred by the exclusive-remedy provision of the Wisconsin Worker’s Compensation Act.
Kemper Independence Insurance Company v. Islami (Insurance Denial for Concealment or Fraud)
In Kemper Independence Insurance Company v. Islami (2019AP488), the Wisconsin Supreme Court upheld an insurer’s denial of coverage based on the actions of a claimant’s estranged spouse.
State Supreme Court Chooses New Chief Justice
On April 14, a majority of the seven members of the Wisconsin Supreme Court voted to select Justice Annette Ziegler as the state’s next chief justice. She assumed the office on May 1. Justice Ziegler was first elected to the court in 2007 and ran unopposed in 2017. She is the court’s third longest-serving member.
Wisconsin Supreme Court Rules Against Gov. Evers in Public Health Emergency Case, Ending Statewide Mask Mandate
On Wednesday, March 31, the Wisconsin Supreme Court issued a ruling in Jeré Fabick v. Tony Evers, holding 4-3 that the governor cannot issue successive emergency declarations on the same subject. Petitioner Jeré Fabick sought a declaratory judgement on Governor Tony Evers’ authority to issue multiple public health emergency declarations related to the COVID-19 pandemic. Justice Brian Hagedorn delivered the majority opinion, joined by Chief Justice Pat Roggensack and Justices Annette Ziegler and Rebecca Bradley. Justice Ann Walsh Bradley wrote a dissenting opinion joined by Justices Rebecca Dallet and Jill Karofsky.
Mohns v. BMO Harris Bank (Discovery Violations)
In Mohns v. BMO Harris Bank (2018AP71), the Wisconsin Supreme Court held that the circuit court was within its discretion to impose judgement on liability, including for intentional misrepresentation, as a sanction for discovery violations.
Chief Justice Roggensack Delivers the State of the Judiciary
On November 5th, Chief Justice Roggensack delivered the first ever virtual State of the Judiciary at the Annual Meeting of the Wisconsin Judicial Conference.
Wisconsin Supreme Court Declines to Immediately Take Up Capacity Limit Case
In a 4-3 decision on November 4th, the Wisconsin Supreme Court declined to bypass the court of appeals and take up the capacity limit case brought by The Mix Up and Pro-Life Wisconsin.
Wisconsin Supreme Court Oral Arguments – April 2020
Several oral arguments that had been postponed in March due to COVID-19 were rescheduled for the April calendar. April oral arguments were conducted remotely and featured several high-profile cases.
April 20 – Veto Authority Cases
The Supreme Court heard oral arguments in two cases challenging the veto authority of the governor.
Bartlett v. Evers challenges vetoes by Gov. Tony Evers in the 2019-21 state budget. The court will review whether the governor can strike “essential, integral, and interdependent parts” of a state budget passed by the Legislature, using examples from Evers’s budget such as the redirection of Volkswagen settlement funds from a school bus replacement program to an electric vehicle charging stations program and the transfer of $74 million in funding to local government transportation projects.
Wisconsin Small Business United, Inc. v. Brennan challenges vetoes by Gov. Scott Walker in the 2017-19 state budget. In that budget, the Governor used his partial veto authority to delay the effective date of a program by 60 years and extend another program by 1,000 years. This case asks whether the governor’s partial veto authority allows him to change dates in a piece of legislation.
April 22 – Administrative Rulemaking & Guidance Documents
The court heard oral arguments in Papa v. Department of Health Services. In this case, the court will determine whether a Wisconsin Department of Health Services (DHS) policy in DHS’s Medicaid Provider Handbook has the “force of law” (Wis. Stat. § 227.01(13)) and should be promulgated as an administrative rule and subject to judicial review.
Medicaid-certified nurse Kathleen Papa and Professional Homecare Providers, Inc. (PHP) filed this lawsuit against DHS regarding Topic #66 in DHS’s Medicaid Provider Handbook. Topic #66 states that Medicaid providers must “meet all applicable program requirements” for reimbursement. If providers fail to meet all requirements, DHS can recoup payments from the providers. Papa and PHP argued that Topic #66 was an illegal unpromulgated administrative rule and that the policy exceeded DHS’s explicit statutory authority under Wis. Stat. Ch. 227.
The Supreme Court will review the Court of Appeals finding that Topic #66 was not an administrative rule, and thus Papa and PHP could not obtain a declaratory judgement via Wis. Stat. Ch. 227 judicial review of administrative rule proceedings. Additionally, the Supreme Court will review whether Topic #66 – if not a rule – is a guidance document also subject to judicial review under Ch. 227.
April 27 – Gambling Statutes
The court heard Quick Charge Kiosk, LLC v. Josh Kaul, which will determine whether gaming and cell phone charging machines operated by Quick Charge violate certain Wisconsin gambling statutes.
The Quick Charge machines allow customers who insert a dollar in the machine to receive one minute of charging time and 100 credits to play the video chance game. After the charging time expires, customers can no longer play the game but can redeem their remaining credits for cash at the same rate for which they paid for the credits ($1 for 100 credits).
Some municipalities attempted to remove the Quick Charge machines because they believed the machines were illegal gambling devices. In this case, Quick Charge filed an action seeking a declaratory judgment that the machines are in compliance with Wisconsin’s gambling statutes. The state Department of Justice moved for summary judgment, asking the court to declare the machines unlawful.
The Supreme Court will examine whether or not the gambling statutes apply to this specific type of machine and to promotions run by Quick Charge.