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July 18, 2007
On Tuesday, July 17, 2007, the State Senate concurred in the Joint
Resolution previously adopted by the Assembly which authorizes the creation
of a 2007-09 State Budget Conference.
Senate President Fred Risser appointed Majority Leader Judy Robson,
Finance Co-Chair Russ Decker, and Sen. Bob Jauch as conferees while Senator
Scott Fitzgerald appointed himself to serve as the Republican member from
the Senate. Speaker Huebsch said he will appoint himself, Majority Leader Jeff
Fitzgerald and Finance Co-Chair Kitty Rhoades to represent Assembly
Republicans. Rep. Kreuser, the Assembly
minority leader, will represent Assembly Democrats.
Please see the
Hamilton Consulting Group's Budget Update for summaries of selected
Budget provisions of interest to our clients and friends.
(The conference committee is made up of three members from the majority
party and one member from the minority party in each house of the
legislature. Three members from each house must sign the final conference
report before it is submitted to the legislature for final action. The
minority members of the conference committee are selected by the minority
leaders while the majority members are appointed by the Speaker in the
Assembly and the President of the State Senate.)
Rep. Huebsch and Sen. Robson have reserved the right to appoint
“rotating” members to the panel as it deliberates. It is expected that Gov.
Doyle or someone from his office will be included in the conference
committee deliberations, but will have no official standing or vote on any
issue.
We have included below a brief synopsis of several recently released
Wisconsin Supreme Court decisions of interest. While the Court is
technically in recess, decisions are continuing to be released. As noted
below, these are not unanimous decisions of the Court and some of the delay
in reporting out these cases is related to number of concurring and
dissenting opinions, which cannot be written until the majority opinion is
completed and approved.
We extend our heartfelt sympathy to State Sen. Dave Hansen and his
entire family on the very sad loss of the Senator’s granddaughter in a
tragic accident late last week.
Policy Developments
Budget Work Will Continue in Conference
Committee
Because the Assembly and Senate have passed different versions of the
biennial budget, a conference committee has been created to work on a
compromise between the two versions. 2005 Assembly Joint Resolution 59
created the committee.
The committee will include Senators
Robson, Decker, Jauch, and Scott Fitzgerald, and Representatives Huebsch, Jeff
Fitzgerald, Rhoades, and Kreuser. No specific date has been set for the committee
to meet.
The Hamilton Consulting Group has
prepared an
Update outlining the differences between the
Governor, Joint Finance, Senate and Assembly versions of the budget.
For further information on these initiatives,
please contact a
Hamilton Consulting Group lobbyist.
Recent Wisconsin
Supreme Court Cases
Supreme Court Rules Against Jury
Trials in Environmental Regulatory Case
State of Wisconsin v. Schweda and ECI Special Waste Services
ECI Waste Services claimed that it was entitled to a jury trial because an
action seeking forfeiture for waste disposal regulation violations was
analogous to a common law nuisance claim--a claim which is guaranteed a jury
trial based upon common law and the 1848 Wisconsin State Constitution.
The Supreme Court, on a 4-3 decision upheld the denial of a jury trial,
holding that the regulatory claims being made in this case are not
sufficiently analogous to common law public nuisance. The majority held
that the claims asserted did not exist, were not known and were not
recognized at the time the state’s constitution was adopted. The court
noted that this holding does not preclude jury trials in environmental
regulation cases but application revolves upon finding that the asserted
claim has an ‘essential counterpart’ that existed and was recognized as
actionable in common law in 1848.
The 81 page opinion contained a 53 page dissent by Justice Prosser, joined
by Justices Roggensack and Wilcox which opined that the majority opinion
severs the historic connection between public nuisance at common law and
modern environmental regulation. The dissent also noted that the majority
opinion does not preclude the right to a jury trial in all environmental
regulatory cases but provides no guidance to trial judges as to when that
might be appropriate.
Class Action Suit Against Drug Manufacturers Allowed to Proceed
Barbara A. Meyers, et.al. v. Bayer AG
In another 4-3 decision(Roggensack, Prosser and Wilcox dissenting), the
Wisconsin Supreme Court ordered further proceedings under it's
interpretation of Wisconsin’s Antitrust Act under Chapter 133.
The Wisconsin Antitrust Act states that in order to allege price fixing that
the action must “substantially affect” the people of Wisconsin and have
“impact” in the state when the conduct occurs predominantly outside of the
state. The courts have defined this to mean that prices must be fixed or
supplies must be restricted in combination with illegal combination or
conspiracy.
The court rejected the contention that allegations needed to be
particularized to Wisconsin consumers. The court stated that requiring
greater specificity than the notice pleading statute would inadvertently
exclude otherwise legitimate suits from being brought. The case involved
allegations that thousands of Wisconsin consumers paid inflated prices for a
drug as the result of an agreement among four companies, including Bayer.
In her dissent, Justice Roggensack concluded
that the conduct alleged in the complaint is not illegal nor alleged to have
an illegal effect and as a result cannot “substantially affect” the people
or “impact” the state.
Court Upholds Dismissal for Failure to Allege
Actual Damages
Steven C. Tietsworth v. Harley-Davidson, Inc.
At the trial court level, negligence and strict liability claims against
Harley were dismissed because the complaint failed to allege any actual
damages and because the claims were barred by the economic loss doctrine.
The Wisconsin Appeals Court decided that the
plaintiffs were not able to reopen their case. The court concluded this
because a remand order was not given by the appeals court and thus claim
preclusion excluded reopening the case. The court also stated that
Wisconsin has very liberal complaint amendment policies that could have been
utilized by the parties much earlier in the process and should have been
undertaken before a judgment was rendered.
This was yet another 4-3 decision, with the
dissent written by Chief Justice Abrahamson, joined by Justices Bradley and
Crooks, which took the position that the majority had adopted a “new rule”
that is not easy to apply and is subject to manipulation.
Court in Frivolous Action Case Rules On
Retroactivity of Procedural Rules
Trinity Petroleum Inc., v. Scot Oil Company
The ruling dealt with a statute pertaining to commencing and maintaining
frivolous lawsuits. It required that the party seeking damages for a
frivolous claim meet a notice requirement by informing the opposing party in
the suit of its intentions at least 21 days before making the claim.
The Wisconsin Supreme Court decided that the
rule was a procedural rule and that rules of procedure are usually applied
retroactively. The court established a test for determining application of
the statue. The court held that a procedural rule will not have retroactive
application if it impairs contracts, disturbs vested rights, or imposes an
unreasonable burden of the party attempting to comply. In this case the
court determined that the rule was to be applied with the above listed
exceptions. Thus, the case was remanded to the lower court.
Justice Roggensack was joined by Justices
Prosser and Wilcox in concurring with the remand but asserting that the new
rule should not have any retroactive application.
City Upheld on Comparable Replacement in
Eminent Domain Case
City of Janesville v. CC Midwest, Inc.
In the underlying case, the City of Janesville was granted a writ of
assistance to remove CC Midwest from property the city previously acquired
by eminent domain.
The trial court concluded the city met its statutory obligation to make
available a comparable replacement business or property. The Court of
Appeals reversed the trial court and the Supreme Court agreed with the trial
court. A majority of the Court held that the city had met its statutory
obligation.
A
concurring opinion by Justice Wilcox disagreed with the majority that the
statute is ambiguous. Justice Bradley, joined by Chief Justice Abrahamson,
joined the majority opinion concluding the city met its obligation, but did
not join that part of the opinion that “constitutes only a lead opinion
because it reaches out and unnecessarily discusses and decides a
constitutional issue that was not advanced by either of the parties.”
Justices Prosser and Butler dissented, filing separately.
Court holds Stoughton Trailers Violated Fair
Employment Law
Stoughton Trailers, Inc. v. Labor and Industry Review Comm'n and Douglas
Scott Green
In this case an employee brought a suit against Stoughton Trailers, Inc. for
wrongful termination after Stoughton failed to accommodate his disability.
Stoughton Trailers has a no-fault attendance
policy that mandates employees be terminated after 6 occurrences. An
employee had used 4.5 occurrences when he developed migraine headaches. He
was absent for a period of several weeks due to the migraine headaches but
was assessed only one occurrence for the entire period of time.
The employee failed to return to work following
a vacation and was assessed an occurrence which placed him over the
company’s six occurrence limit. The employee was notified that he had 15
days to provide medical documentation for his absence, but he provided
none. He was terminated immediately.
The employee brought suit claiming that
Stoughton failed to comply with Wisconsin’s Fair Employment Act which
requires employers to reasonably accommodate an employee’s disability.
Stoughton argued that while the employee was
fired prior to the end of the fifteen day period, the medical documentation
he provided did not cover his absence on the day in question. The court held
that Stoughton had a duty to allow employee fifteen days to provide all
documentation and should have shown lenience when employee failed to provide
documentation by the deadline.
Justices Prosser and Wilcox dissented, partially
on the basis that most of the employee’s absences were not caused by the
disability and the Court did not answer the question of whether an employer
may apply an apparently neutral no fault policy without risk of employment
discrimination. (Justice Roggensack did not participate.)
Wrongful Death Claims Do Not Survive
Claimant’s Death
Holly Lornson v. Nadeem Siddiqui, M.D.
The court held in a 4-3 decision that an eligible claimant’s cause of action
does not survive the death of the claimant in wrongful death actions.
Lornson and her adult sister brought action in
this case as the personal representatives of their father’s estate as well
as individual claimants as adult children of their late mother. Their
father, Joseph Sanders, filed a wrongful death claim against the defendants
for medical negligence in the death of his wife. Sanders died before the
case went to trial so his daughters attempted to follow through with the
claim.
The court held that in medical malpractice
wrongful death cases, eligible claimants are not subject to a statutory
hierarchy like non-medical malpractice wrongful death claims are.
Adult children of the deceased are not listed as
eligible claimants under Wisconsin Statute s. 655.007 so the plaintiff could
not pursue a wrongful death claim as the daughters of the deceased.
The Court further held that Sanders’ medical
malpractice claim did not survive his death so his daughters could not
continue the claim as personal representatives for their father’s
estate. The Court held that this interpretation of the statute in no way
deprives Joseph Sanders or his estate of a vested property right without due
process and does not violate equal protection of the law.
Justice Crooks concurred in part and dissented
in part, with Chief Justice Abrahamson and Justice Bradley joining the
opinion. The dissent disagreed with the holding that the daughters, as
personal representatives of the estate, could not maintain the wrongful
death claim that the father had for the death of his spouse.
Hamiltonians in the News
BusinessWatch
Magazine Features Henry Sanders
Henry Sanders, Jr.
is featured in the July issue of Dane County’s BusinessWatch
magazine. The “Spotlight” article discusses Henry’s thoughts on
similarities between business and boxing, how he stays focused,
and, when it’s all said and done, how he’d like to be
remembered.
More on Henry.
Hamilton Co-Hosting State
Budget Teleconference
Jim Hough and Amy Boyer of the Hamilton Consulting Group and the
Wisconsin Economic Development Association will be hosting an hour
teleconference to discuss the 2007/2008 State Budget on Thursday, July 26
from 10:00 am - 11:00 am.
Political News
Editorial: Now the real work on budget begins: Green Bay
Press-Gazette July 12, 2007. Now that both the
Democratic-controlled Senate and the Republican-controlled
Assembly have laid their cards on the table, it's time for an
entertaining few rounds of "I know you are, but what am I?
Editorial: Deadline is more than just a suggestion: Green Bay Press
Gazette July 13, 2007. Perhaps it's not fair to compare everyday deadlines
to something as momentous as a major public works project or a complicated
state budget.
Doyle, city leaders assail budget:
Milwaukee Journal Sentinel July 13, 2007. In February, a host of Milwaukee
leaders stood behind Gov. Jim Doyle to hail his "Milwaukee package," some
$80 million in initiatives to help boost the city.
GOP budget said to weaken Amber Alert: Milwaukee Journal Sentinel July
12, 2007. The budget Assembly Republicans passed this week would all but
eliminate taxpayer support for public broadcasting, a move that officials
said Thursday would cripple the state's Amber Alert program.
New budget stiffs Beloit: Beloit Daily News July 11, 2007. For the
Stateline Area, the outlook seems to be particularly grim, local officials
and area representatives say, characterizing the budget as draconian and
irresponsible.
Senator pushing for accurate prices: Janesville Gazette July 15, 2007.
The dairy market has its ups and downs, but Sen. Russ Feingold is concerned
that some prices also are open to tampering.
Assembly action won’t help poor people get dental care: La Crosse
Tribune July 14, 2007. Area legislators were quick to put the nicest
possible face on the state Assembly’s rejection of a pilot program that
sought to get more dentists to take Medical Assistance cases.
Senate Democrats and Assembly Republicans write budget with 2008 election in
mind: Wisconsin State Journal July 16, 2007. The wildly disparate
budgets crafted by the state Senate and the Assembly are more than spending
plans.
Editorial: Ban fundraising during budget: Wisconsin State Journal July
16, 2007. At best, it's unseemly. At worst, it's corrupting.
Upcoming Fundraisers
July 24
July 25
July 29
Aug. 3
For
details, go to
Hamilton Consulting Fundraiser Calendar.
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