The Assembly Committee on Natural Resources today held a public hearing on Assembly Bill 138, sponsored by Rep. Spencer Black (D-Madison), which would remove the governor’s authority to appoint the Department of Natural Resources secretary.

Under current law, the DNR secretary is nominated by the governor and confirmed by the Wisconsin Senate. Assembly Bill 138 would remove the governor’s authority to appoint the DNR secretary. The bill would grant the Natural Resources Board the authority to appoint the DNR secretary to a four-year term. In addition, AB 138 grants the Natural Resources Board the authority to remove the secretary at any time.

The proponents of the bill argued that by allowing the Natural Resources Board the authority to appoint the DNR secretary it takes away the political nature of decision making within the agency. Opponents, including current DNR Secretary Matt Frank, argued that the present system works well and ensures that the DNR secretary remains accountable to the governor, an elected official — unlike the Natural Resources Board, which is not accountable to the electorate. Under Wisconsin law, the members of the Natural Resources Board are appointed by the governor and confirmed by the Wisconsin Senate.

While it appears there are enough votes to pass the legislation, with Gov. Jim Doyle publicly announcing his opposition to the bill, it remains to be seen whether the Governor will veto the bill, and if so, whether the Legislature will have enough votes to override a veto. (The Legislature can override a veto with a two-thirds vote in both houses).

By Jim Hough

On July 14, the Wisconsin Supreme Court held that the circuit court in Milwaukee correctly concluded that the plaintiff’s complaint failed to state a claim of defective design of white lead carbonate pigment ultimately used in paint and coatings. The ruling upheld the dismissal of design defect claims in a suit alleging that certain manufacturers are liable under theories of strict (product) liability and negligence. Godoy v. E.I. du Pont de Nemours and Co. (2009 WI 78).

The decision includes an overview of product liability law in Wisconsin and a determination of the product at issue in this case and the court concludes that “lead” is an essential element of white “lead” carbonate pigment and without “lead” it would be something else. The Court distinguishes among three categories of product defects: 1) manufacturing defects; 2) design defects; and, 3) defects on a failure to adequately warn.

The Court discusses the “risk contribution” theory applied to white lead carbonate pigment in the Thomas case — but — distinguishes this case from Thomas since this case is about defective design and Thomas was based on failure to warn claims.

There are three concurring opinions that address the “consumer expectation test” followed in Wisconsin and based on the Restatement of Torts (2^nd) and the “alternative design test” based on the Restatement of Torts (3^rd) and followed in the vast majority of states.