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July 9, 2004
July 11 marks
the 200 year anniversary of what has become known as “the
interview at Weehawken.” In the most famous encounter of its kind
in American history, Alexander Hamilton aimed to miss, while Aaron
Burr aimed to kill. A day later, this country lost a great
statesman when Hamilton died at the young age of 49.
Well known as the first
Treasury Secretary and leading author of “The Federalist Papers,” Hamilton
was also a clerk, college student, youthful poet, essayist, artillery
captain, wartime adjutant to General Washington, battlefield hero,
Congressman, abolitionist, Bank of New York founder, state assemblyman,
member of the Constitutional Convention and New York Ratifying Convention,
orator, lawyer, educator, foreign policy theorist, major general in the
army, principal architect of the federal government, patron saint of Wall
Street, catalyst for the development of the first political parties and a
pivotal force in four consecutive presidential elections. His most recent
biographer, Ron Chernow (see below) suggests that: “Alexander Hamilton was
arguably the most important figure in American history who never attained
the presidency, but he had a far more lasting impact than many who did.”
Coincidental with this
200th anniversary year, Ron Chernow has written an excellent and
very readable best seller biography of our namesake, simply entitled “Alexander
Hamilton” (recommended reading and we do not receive a commission on book
sales.)
In his introduction to
this biography, Chernow notes: “[Alexander Hamilton] was the messenger from
a future that we now inhabit. We have left behind the rosy agrarian rhetoric
and slaveholding reality of Jeffersonian democracy and reside in the
bustling world of trade, industry, stock market and banks that Hamilton
envisioned.”
In his review of the
book, Steve Forbes observes: “That we now have the richest economy that the
world has ever seen is the fruit of Hamilton’s astonishing statecraft. As
our first Treasury Secretary, and against fierce opposition, he pushed
through a far-sighted program of financial management that not only revived
a morbid economy but also gave it a durability and flexibility that has made
it a wonder ever since. We are all Hamiltonians today—a hustling, bustling,
never stay still, always looking ahead, trying to get better, people.”
This anniversary reminds
us that we chose Hamilton as our namesake because he best exemplifies our
philosophy of “making government work for you.”
In other matters closer to
home: The Wisconsin Supreme Court has recently published numerous decisions
regarding issues of interest; as have Courts of Appeal and the Dane Count
Circuit Court; the former Senate Democratic majority leader has confirmed
that he will not be seeking re-election; the former chair of the Public
Service Commission will move on to the private sector; DNR has scheduled
hearings on rules that it has developed to allegedly implement Chapter 118,
the Regulatory reform package; and, the U.S. Senate has derailed class
action legislation.
The filing deadline for
state and federal legislative offices is July 13. The next issue of
Tidbits will
begin analyzing key races and the candidates.
Policy Developments
Recent Court
Decisions
The District IV Court of Appeals recently held that
bleachers are not an improvement to real property within the meaning of
Wisconsin
statutes that would bar an action based on the statute of repose.
The ruling allows the personal injury suit to proceed subject to
the 3 year statute of limitations applicable to personal injury
cases.
In another decision, the
District IV Court
upheld a Labor industry Review Commission (LIRC) ruling that a trucking
company did not unlawfully discriminate for it’s refusal to hire a convicted
felon on the basis that the conviction involved conduct substantially
related to the circumstances of the particular job.
The District II Court of
Appeals held that the language in an automobile insurance policy was
“sufficient to alert a reasonable person that” the insurance company might
use non-OEM (aftermarket or salvaged) parts to restore the vehicle.
The Dane County Circuit
Court has ruled that the DATCP rule allowing private causes of action and
fines for violations of the “No Call List” law are not valid.
Summaries of the Supreme
Court cases and links to the full opinions are as follows:
Medical Malpractice
Yvette M. Maurin v. Gordon Hall, M.D.
The court concluded that non-economic damages in a medical malpractice
wrongful death case are capped by the limitation in Wis. Stat. § 895.04(4)
and that such cap is constitutional. (Non-economic damages include
recovery for concepts such as pain and suffering and loss of society and
companionship as opposed to compensatory damages which are direct costs or
losses such as medical expenses and lost wages.) This case involved
malpractice and wrongful death, both having statutory caps on recovery of
non-economic damages. The Court ruled, however, that “there is a single
cap on noneconomic damages recoverable from health care providers for
medical malpractice when a patient dies.” While the Court was unanimous in
this very important decision, there were 3 concurring opinions filed
including one in which Justice Prosser, who wrote the main opinion, also
joined.
Safe Place
Nancy Megal v. Green Bay Area Visitor & Convention Bureau, Inc.
Affirming the court of appeals decision in a case brought against the
Green Bay Visitor and Convention Bureau, the court found there were no
facts that could be used to show constructive notice of the unsafe
condition that caused the injury, as is necessary to establish a violation
of the safe-place standard of care. The plaintiff was not, however, barred
from proceeding with a common law claim for failure to exercise ordinary
care.
Products Liability
Laverne Haase, v.Badger Mining Corporation
In confirming the dismissal of a products liability claim against Badger
Mining Corp., the court upheld the appeals court decision and held that
Badger's product, silica sand, underwent a material and substantial change
after leaving its possession and therefore Badger could not be held
strictly liable.
Lemon Law
Adele R. Garcia, v.Mazda Motor of America, Inc.
The court concluded that a consumer's demand for a replacement vehicle
under the Wisconsin Lemon Law necessarily implies an offer to transfer
title. The court, therefore, reversed the court of appeals and remanded
the case for further proceedings consistent with this opinion.
Franchisor Vicarious
Liability
Robert Kerl v. Dennis Rasmussen, Inc.
The court ruled that a franchisor may be held vicariously liable for the
tortuous conduct of its franchisee only if the franchisor has control or a
right of control over the daily operation of the specific aspect of the
franchisee's business that is alleged to have caused the harm. In so
holding, the court concluded that the marketing, quality, and operational
standards commonly found in franchise agreements are insufficient to
establish the close supervisory control or right of control necessary to
demonstrate the existence of a master/servant relationship.
Landlord/landowner Dog
Bite Liability
Tatum Smaxwell v. Melva Bayard
Based on public policy factors, the court held that common law liability
of landowners and landlords for negligence associated with injuries caused
by dogs is limited to situations where the landowner or landlord is also
the owner or keeper of the dog causing injury. Allowing recovery against
landowners or landlords who are neither the owners nor keepers of dogs --
that is, landowners or landlords who do not have control over or custody
of dogs -- causing injury to someone on or around their property would
simply have no sensible or just stopping point.
Statute of Limitations
Martin G. Wenke v. Gehl Company
At issue was whether Wisconsin’s statutes of limitation and statutes of
repose apply equally to foreign statutes of limitation and foreign
statutes of repose. The court concluded that the legislature did not
distinguish between these different types of limitation periods when
enacting § 893.07. Accordingly, the plaintiff’s action to recover damages
for injuries sustained in Iowa is barred in Wisconsin and was properly
dismissed by the circuit court.
DNR Hearings on (Chap.
30) Permit Rules
A number of
emergency rules proposed by the Department of Natural Resources to
implement provisions of Act 118, the Jobs Creation Act, were suspended by
the Legislature’s Joint Administrative Rules Committee after a day-long
hearing in Minocqua on June 24.
The committee's action suspends the rules until permanent
ones are promulgated by the DNR, probably this fall.
The DNR will be holding
public hearings to make the previously proposed
emergency rules permanent. Once the permanent rules are adopted by the
Wisconsin Natural Resources Board they will be reviewed by the Assembly
Natural Resources Committee and the Senate Environment and Natural Resources
Committee.
The hearings start at 6
p.m. with an open house from 3 to 5 p.m. during which Department staff will
be available to answer questions regarding the proposed rules.
July 27
-
Room C103,
UW-Waukesha, 1500 University Drive, Waukesha
-
LRC203, Nicolet Area
Tech. College-Lake Julia Campus, Highway G South, Rhinelander
July 28
-
Old Library OL1132,
UW-Eau Claire, 105 Garfield Avenue, Eau Claire
-
Room 218, UW-Wausau,
518 South 7th Avenue, Wausau
July 29
-
Boardroom A & B, Wis.
Indianhead Tech College-Shell Lake Campus, 505 Pine Ridge Drive, Shell
Lake
-
Wing Communications
Room 102, UW-La Crosse, 1725 State St., La Crosse
August 3
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Room 332, Pyle Center,
UW-Madison, 702 Langdon Street, Madison
-
Room 137, Mary
Ann Cofrin Hall, UW-Green Bay, 2420 Nicolet Drive, Green Bay
Listening Sessions Continue
on Act 255
Act 255 includes tax credits for angel and early stage seed investments, a
technology commercialization grant and loan program, and funds to establish
entrepreneurial centers. Commerce is developing administrative rules to
implement the act.
Listening sessions are
scheduled at 10:00 a.m. on each of the following dates and locations:
-
July 15, Chippewa Valley
Technical College, Chippewa Falls
-
July 22, Fox Valley
Technical College, Appleton
-
July 29, MG&E Innovation
Center, Madison
PSC Commissioner Ave Bie Announces Resignation
After 25 years of public service, PSC Commissioner Ave Bie will relinquish
her official responsibilities as of July 23, 2004. She was appointed to the
Public Service Commission by Governor Thompson in August 1998 and served as
chair from January 1999 until January 2003. Among her other state service
positions, she previously served as Deputy Secretary for state departments.
Under her leadership, the
Commission focused on Wisconsin’s electric reliability needs through the
Arrowhead Weston transmission project and the first phase of We Energies
Power the Future project.
Revised Hazardous Air
Pollutants Rule Goes into Effect
A revised hazardous air pollutants rule increasing the number of substances
on the list of hazardous air pollutants that was approved by the Natural
Resources Board and the legislature earlier this year became effective on
July 1.
The revised
rule adds 103 substances to the list of hazardous air pollutants, removes
five substances from the list and revises the emission standards and
threshold levels for many of the listed substances. The revised rule also
establishes a number of improvements to the regulatory system that reduce,
clarify and streamline the requirements. (The Hamilton Consulting Group
worked on this rule package and we will provide a more detailed summary
soon.)
Wisconsin
Politics
Chvala Will Not
Seek Re-election
Former Senate Majority Leader Charles Chvala (D-Madison) has filed
a notification of non-candidacy with the State elections Board.
This confirmation that he is not seeking re-election has been
anticipated since the Senator delivered what observers believed to
be a departure speech in the final day of the most recent regular
session.
Chvala was first elected
State Senator for the 16th District in 1984 after serving one term in the
State Assembly. He served as Senate Democratic Leader in 1995, and was
elected and served as Senate Majority Leader from 1996-1998 and again from
1999 to late 2002.
Doyle to Lead Business
Delegation to Japan
The Department of Commerce will coordinate a delegation to Japan Sept. 23 –
30, 2004 to attend the Midwest US-Japan/Japan-Midwest US Conference.
Wisconsin businesses seeking to begin or expand an export initiative in this
country are encouraged to join the delegation. Biotechnology firms are
especially encouraged to participate
Federal Developments
Class Action
Fairness Act Victim of Procedural Impasse
On Tuesday, July 6, the United States Senate began consideration
of
S.2062, to amend the procedures that apply to consideration of
interstate class actions to assure fairer outcomes for class
members and defendants. A unanimous consent agreement was reached
providing for further consideration of the bill.
The Senate class-action
measure, sponsored by Sen. Charles E. Grassley (R-Iowa) and other members of
the Judiciary Committee, allows class actions involving at least 100
plaintiffs to be sent to federal court if at least $5 million is at stake
and fewer than two-thirds of the plaintiffs live in the same state as the
primary defendant.
The measure failed last
year but has since picked up enough votes for passage when three Democrats
negotiated changes that, among other things, would allow cases that were
local in nature to remain in state courts.
With 62 votes, on paper
filibuster–proof, some observers believe this weeks announcement of U.S.
Senator John Edwards as Vice-Presidential nominee caused Democrats to balk
at reinforcing the GOP claims that Edwards, a plaintiff’s lawyer, is a
“friend to personal injury plaintiff lawyers.” Senate Democrats sought to
offer a number of amendments, one to increase the federal minimum wage,
which were rebuffed by the Majority Leadership. This procedural impasse
appears to have derailed any chances for passage.
For Whom the Road Tolls?
After a history of rejecting tolls on highways built with federal money,
Congress may be weakening on a policy to give states authority to levy
tolls. The proposal is contained in the Senate version of a six-year
transportation bill being negotiated with the House.
Since the passage of the
Federal-Aid Highway Act in 1956, travel on the interstate system has been
largely free of tolls. But with a large disparity between the country’s
transportation infrastructure needs and available resources, the toll idea
is gaining more support than in the past.
Opposition from the AAA,
the American Trucking Associations, the American Farm Bureau and the
American Highway Users Alliance is forcing a clash between their supporters
and those supporting state highway departments, road building groups, the
U.S. Conference of Mayors and leading environmental organizations.
Both the House and Senate
transportation spending bills are much greater than what the White House has
said is acceptable. But the administration has indicated that it favors the
tolling proposals in the Senate bill, signaling a possible way out of the
funding impasse.
Political News
Name recognition cuts both ways for Darrow:
Milwaukee Journal Sentinel, July 9, 2004.
Foti, Chvala won't run for re-election:
Milwaukee Journal Sentinel, July 9, 2004.
PSC's Bie says early goodbye:
Milwaukee Journal Sentinel, July 7, 2004.
Manufacturing expectations soar:
Milwaukee Journal Sentinel, July 7, 2004.
Analysts predict economic boom coming soon:
Marshfield News Herald, July 7, 2004.
Let the lemon law work (opinion): Milwaukee Journal Sentinel, July
6, 2004.
Health
care workers wanted: Milwaukee Journal Sentinel, July 5, 2004.
Court
upholds damage limits for malpractice: Milwaukee Journal Sentinel,
July 5, 2004.
Wary
taxpayers keep watch as state debates tax policy: Milwaukee Journal
Sentinel, July 5, 2004.
Nurse midwife focuses on 'normalcy of birth': Marshfield News
Herald, July 3, 2004.
Jobs growth
slowed in June: Milwaukee Journal Sentinel, July 3, 2004.
Lemon Law ruling helps consumers: Appleton Post-Crescent, July 2, 2004.
Sherman announces reelection bid for Assembly: Ashland Daily Press,
July 2, 2004.
State no call-list survives court fight fairly intact (opinion):
Racine Journal Times, July 1, 2004.
Kenosha
County on EPA pollution list: Milwaukee Journal Sentinel, July 1,
2004.
1st nurse midwife certified: Wausau Daily Herald, July 1, 2004.
Telemarketing Violations: A Tough Call: Wisconsin State Journal,
June 30, 2004.
Give a fair hearing to school finance proposal (opinion): La Crosse
Tribune, June 28, 2004.
Democrat Bakke announces candidacy for state Senate: Hudson
Star-Observer, June 25, 2004.
Reducing mercury (opinion): Ashland Daily Press, June 25, 2004.
Upcoming Fundraisers
Monday, July 12
Tuesday, July 13
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State Senate Democratic Committee, Madison
-
Republican Assembly Campaign Committee, Madison
Thursday, July 14
Saturday, July 17
Monday, July 19
Tuesday, July 20
Wednesday, July 21
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Bill Brandt (D) 35th AD Candidate, Merrill
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Jennifer Morales (D) 8th SD Candidate, Fox Point
Tuesday, July 27
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