*This case is recommended for publication.

 

In Zignego v. Wisconsin Elections Commission (2019AP2397/2020AP112), the Court of Appeals District IV overturned a circuit court order mandating the Wisconsin Elections Commission deactivate the registrations of Wisconsin voters who had recently moved and failed to timely apply for continuation of registration.

 

Background

Wis. Stat. § 6.50(3) provides that, if a municipal clerk or “board of election commissioners” receives information that voters have moved, it must notify the voters. If a notified voter fails to respond to the notice within 30 days, the municipal clerk or “board of election commissioners” is required to change the voter registration status to ineligible. At issue in this case was whether “board of election commissioners” refers to the Wisconsin Elections Commission.

The Wisconsin Elections Commission in 2017 received from a third-party data corporation a report on voters who may have moved. Based on that data, the Commission sent notices to those voters stating that they had 30 days to respond or their registration status would switch to ineligible. The Commission subsequently deregistered those individuals who did not respond to the notice.

After receiving another report on voters who may have moved in 2019, the Commission, citing worries about inaccurate data from the 2017 report, sent out a notice to those voters but declined to state the Commission would deregister voters who did not respond.

Subsequently the plaintiffs filed this lawsuit alleging that the Commission violated § 6.50(3) by not deregistering the voters who had not responded to the notice. The Commission argued § 6.50(3) did not apply, as the Commission is not a “board of election commissioners.”

The circuit court ruled in favor of the plaintiffs and issued a writ of mandamus ordering the Commission to deactivate the voters. When the Commission did not deactivate the voters, the court found the Commission in contempt of court. The Commission sought a petition to bypass the Court of Appeals, but the Supreme Court rejected the petition. The next day, the Court of Appeals granted the Commission’s appeal and issued a stay of the circuit court’s writ of mandamus and contempt order.

 

Court of Appeals Decision

 The Court of Appeals agreed with the Commission that the term “board of election commissioners” in § 6.50(3) does not refer to the Commission. Wisconsin’s election statutes consistently refer to the Elections Commission as the “commission” (§ 5.025). At other places in statute, “board of election commissioners” refers to a body in Milwaukee that fills the duties of a municipal election clerk. The court found no reason to hold that “board of election commissioners” would mean something else in § 6.50(3). Even within § 6.50, the statutes use both terms: “commission” and “board of election commissioners.” Thus, assigning “board of election commissioners” to mean the Elections Commission in just one instance in these statutes would render one of the terms superfluous.

Furthermore, the court found that the Elections Commission is an independent agency, not a “board,” so “board of elections commissioners” could not refer to the Elections Commission. The court also dismissed plaintiffs’ arguments that the Legislature intended § 6.50(3) to require removal of moved voters and that the Commission itself at one point believed it had authority to deregister voters under § 6.50(3).

Thus, the Court of Appeals ordered the plaintiffs’ causes of action dismissed and reversed the circuit court’s writ of mandamus and contempt order against the Commission.

Plaintiffs, represented by Wisconsin Institute for Law & Liberty, have filed a petition for review by the Wisconsin Supreme Court.

*This case is recommended for publication.

 

In Applegate-Bader Farm, LLC v. DOR (2018AP1239), the Court of Appeals District IV held that the Wisconsin Department of Revenue (DOR) complied with rulemaking procedures in Wis. Stat. Ch. 227 when it promulgated new rules regarding property tax classification.

 

Background

Wisconsin law provides certain incentives for property owners to participate in state and federal easement programs to achieve agricultural and/or environmental benefits. One incentive for landowners participating in easement programs is property tax classification as “agricultural use,” which is typically a lower tax rate. DOR proposed rules making changes to how and which properties participating in easements qualified for agricultural use classification for property tax purposes.

DOR’s initial draft of the rule listed certain criteria for determining if a property enrolled in an easement program met the definition of agricultural use. Plaintiff Applegate-Bader Farm, which was enrolled in a federal easement program, would have qualified for agricultural use classification under the initial draft.

After holding a public hearing, DOR made substantial changes to the draft rule that changed which properties would be eligible for agricultural use classification. The governor and legislature subsequently approved the rule in accordance with Ch. 227, and DOR promulgated the rule.

 

Plaintiff’s Claims

Applegate-Bader Farm filed this lawsuit seeking to invalidate the rule because DOR allegedly violated Ch. 227 rulemaking procedures by not revising the scope statement, revising the economic impact analysis, or holding another public hearing on the rule after the department made changes to the initial draft rule. Additionally, Applegate-Bader Farm argued that DOR did not sufficiently investigate the need for an environmental impact statement according to the Wisconsin Environmental Protection Act (WEPA).

 

Ch. 227

 First, Applegate-Bader Farm argued that DOR violated § 227.135(2), which prohibits agency employees from working on drafting a rule before a scope statement is approved. Before scope statement approval, agency employees are limited to working only on preparing the scope statement. The court found that Applegate-Bader Farm did not adequately identify DOR communications constituting work on drafting the rule rather than communications related to preparing the scope statement.

Next, Applegate-Bader Farm argued that DOR violated § 227.135(4) requirements that agencies prepare a revised scope statement when “meaningful or measurable” changes are made. Applegate-Bader Farm proposed that any “meaningful or measurable” changes to the draft rules are “meaningful or measurable” changes requiring a revised scope statement. In this case, according to Applegate-Bader Farm, the changes DOR made to its initial rule draft were “meaningful and measurable” and therefore required DOR to issue a revised scope statement. The court agreed with DOR that a revised scope statement is required only when changes to draft rules “meaningfully and measurably” change the scope of the rules. In this case, DOR’s changes to the initial draft rules would not change the substance of the scope statement, so DOR was not obligated to issue a revised scope statement. The court found it would be unreasonable for agencies to have to re-scope draft rules every time they make changes to the draft rules.

Applegate-Bader Farm also argued that DOR should have held another public hearing after changing the initial draft rule. Previous case law Brown County v. DHSS (1981) held that agencies are required to hold an additional public hearing if changes to draft rules significantly differ from initial drafts. In this case, the court found that interested parties had adequate opportunity for input and influence at the first DOR hearing on the proposed rules, so another hearing was not required after DOR made the changes based on input from the first hearing.

Finally, Applegate-Bader Farm argued that DOR violated § 227.137(4) by failing to revise its economic impact analysis after changing the initial draft rules. The court found that Applegate-Bader Farm failed to establish that there would be “significant” changes to the economic impact due to the changes in the draft rule.

 

WEPA

Applegate-Bader Farm claimed that DOR’s decision not to prepare an environmental impact statement on the rule violated WEPA (Wis. Stat. § 1.11(2)). The court dismissed the WEPA claim, finding Applegate-Bader Farm’s argument that the proposed rule would have only “indirect effects” on the environment was insufficient. Previous case law holds that even significant indirect effects do not require agencies to prepare environmental impact statements. Since the plaintiff here alleged only indirect and no direct environmental effects, the court dismissed the WEPA violation claim.

 

 

For more on rulemaking procedures and statutory changes to Wisconsin rulemaking in the past few years, visit: https://www.hamilton-consulting.com/hcg-guide-to-the-wisconsin-administrative-rules-process/.

 

 

In Hendrix v. Secura Insurance (2018AP1103), the Court of Appeals District III allowed a plaintiff’s slip-and-fall safe place statute claim against the operator of a parking lot to proceed. The court found that the operator of the parking lot, Dedicated Fleet Services, could have had constructive notice of the unsafe condition, whereas the owner of the parking lot, 4X Corp., did not have constructive notice, dismissing 4X from the safe place statute claim.

Plaintiff George Hendrix slipped and fell in the parking lot of Dedicated Fleet Services. Hendrix then filed the instant safe place statute and negligence claims against Dedicated Fleet Services and 4X, which leased the parking lot to Dedicated Fleet Services.

Dedicated Fleet Services moved for summary judgment, arguing it did not have control over the snow removal and Hendrix did not provide evidence that Dedicated Fleet Services had constructive notice of the hazard. Under Dedicated Fleet Services’s contract with 4X, Dedicated Fleet Services would inform 4X of any snowfall, and 4X would be responsible for snow removal on the premises. However, testimony indicated that Dedicated Fleet Services did not notify 4X of the snowfall that occurred just before Hendrix’s injury. Because it was disputed whether Dedicated Fleet Services followed appropriate procedures for snow removal, the court found there was an issue of material fact barring summary judgment for Dedicated Fleet Services. Hendrix’s claim against Dedicated Fleet Services was allowed to proceed.

4X also moved for summary judgment, arguing it did not have constructive notice of the unsafe condition in the parking lot. The circuit court granted 4X’s motion for summary judgment, agreeing that 4X, as owner of the property, was not responsible for day-to-day operations and would not have had notice of the unsafe snow in the parking lot. On appeal, Dedicated Fleet Services argued that the circuit court improperly dismissed the claims against 4X. However, the appeals court found that Dedicated Fleet Services had forfeited the argument against 4X by failing to oppose 4X’s motion for summary judgment at the circuit court level.

*This case is recommended for publication.

 

In Nooyen v. Wisconsin Electric Power Co. (2019AP289), the Court of Appeals District III dismissed safe place statute claims based on the plaintiff’s husband’s development of mesothelioma from asbestos. The court found the construction statute of repose barred the claims.

Norbert Nooyen was working on the construction of two nuclear power plants owned by the utility defendants Wisconsin Electric Power Co., Madison Gas & Electric Co., Wisconsin Power & Light Co., and Wisconsin Public Service Corp. In 2016, Nooyen was diagnosed with mesothelioma. Nooyen and his wife filed the instant lawsuit alleging that his mesothelioma was caused by asbestos at the plants and that the utilities violated the safe place statute (Wis. Stat. § 101.11(1)). The safe place statute states that owners have a duty to construct, repair and maintain buildings safely.

The court found that the construction statute of repose (Wis. Stat. § 893.89) barred the Nooyens’ safe place statute claim.[1] Previous case law holds that the statute of repose bars after ten years claims resulting from “structural defects” inherent to the construction of a building, but allows claims resulting from “unsafe conditions” due to improper maintenance and repair to proceed. At issue here was whether Nooyen’s injury resulted from a structural defect or unsafe condition.

Since Nooyen worked and was exposed to asbestos during the original construction of the power plants, the court found his injury resulted from a structural defect. Therefore, because the Nooyens filed their claim more than ten years after the power plants were completed, the statute of repose barred the Nooyens’ claims.

The court also found that the maintenance exception to the statute of repose did not apply to the Nooyens’ claims because the exception applies only to owners’ failure to maintain the construction itself, not failure to maintain a safe workplace, as plaintiffs had argued.

The court also rejected Nooyen’s argument that because the legislature included a statute of repose exception for actions based on latent diseases in 2011 products liability reforms, the Legislature now has embraced policy “to preserve rights of latent disease victims to recover.” The court found that the legislature would have to adopt a specific latent disease exception for the construction statute of repose for that public policy to apply.

Finally, the court found that the construction statute of repose, enacted in 1994, did apply to Nooyen’s claims because he was not diagnosed until 2016. The court held that its decision did not violate Nooyen’s constitutional right to a legal remedy (Wis. Const. Art. I § 9) because the statute of repose extinguishes the right to remedy after the repose period.

 

 

 

 

[1] WCJC helped shorten the construction statute of repose from ten years to seven years in 2017 Act 235. However, this case began in 2017 before the enactment of Act 235, so the ten year statute of repose applied.