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July 20, 2006

After a brief siesta and passage of the official filing deadline (July 11) for this fall’s elections, Tidbits is moving  into the campaign mode in providing candidate information as we approach very significant primary and general elections in September and November. In our last issue, we provided brief biographies of the four individuals (the incumbent and three challengers) who are seeking the constitutional post of Attorney General.

This week we are providing a “side-by-side” profile of the current Governor, Democrat Jim Doyle, and his Republican opponent, current United States Representative Mark Green. In future publications, we will compare and contrast their respective positions on issues of interest to our readers. The election for Governor will clearly be the most significant vote that we will make in Wisconsin this year.

On the legislative side, we have provided a link to all candidates who have filed. The Republicans currently hold a majority in both Houses: 19-14 in the Senate and 59-39, with one vacancy in the Assembly. There is one “open” (no incumbent running) seat in the Senate and 10 “open” seats in the Assembly. There are a surprisingly high number of uncontested races - four in the Senate (two Republicans and two Democrats) and 33 in the Assembly (14 republicans and 19 Democrats).

Additionally, there are five districts (three Democrat and two Republican) in which the incumbent faces a primary only. Party leaders typically try to recruit candidates for as many districts as possible if, for no other reason, than to keep everyone busy and less able to lend a hand in highly contested districts. We will provide more in-depth information on these state legislative races as the “season” progresses. All 99 Assembly seats are up every two years. This year there are 17 (the odd numbered districts) of the 33 Senate seats up for election to four-year terms.

On the federal side, only U.S. Rep. Petri does not face opposition, although Senator Kohl was not challenged by any of the high-profile candidates who had been mentioned as possible opponents. The only “open” seat is that being vacated by Mark Green as he runs for Governor. Speaker John Gard is leaving the Assembly to seek the Republican nomination as is his primary opponent, Rep. Terri McCormick. Three Democrats (Steven Kagen, Jamie Hall and Nancy Nusbaum) are seeking the Democratic nod.

On another front, and, following the close of its term, the Wisconsin Supreme Court has released a number of significant opinions, three of which are covered below. The cases involve a “reversal” of a 2004 decision regarding the application of wrongful death loss of society and companionship caps in a medical malpractice case, the constitutionality of the hub airline ad valorem tax exemption, and a case involving free speech issues in the political arena.

Policy Developments

Wisconsin Supreme Court Upholds Hub Airline Tax Exemption
In 2001 the Wisconsin Legislature enacted an exemption from ad valorem taxation for any airline that operates a hub airline facility (as defined by statute) in Wisconsin. As noted in the majority opinion (the case was decided 5-2 with Justices Abrahamson and Bradley dissenting), the purpose of the exemption is to maintain Wisconsin’s air transportation system, protect jobs, encourage the development of additional air transportation facilities, and preserve the state’s competitiveness in attracting and retaining business and industry.

Midwest Airlines and Air Wisconsin qualified for the exemption in 2002. Northwest Airlines did not qualify and filed suit challenging the constitutionality of the tax exemption. The majority concluded that the tax exemption does not violate either the Commerce Clause or the Equal Protection Clause of the United States Constitution nor does it violate the Uniformity Clause of the Wisconsin Constitution. Northwest Airlines, Inc., v. Wisconsin Department of Revenue, Midwest Airlines, Inc.

Supreme Court Overturns Two Year Old Decision on Med Mal/Wrongful Death Caps
On July 7, 2006, the Wisconsin Supreme Court, in a 4-3 decision (Bartholomew), overturned its own decision in the Maurin case decided in 2004 and allowed the plaintiff to recover $500,000 for his spouse’s pre-death pain and suffering as well as $350,000 for pre-death loss of society and companionship, and an additional $350,000 for post-death loss of society and companionship.

 The majority concluded that “Maurin is unsound in principle and was wrongly decided” - only two short years ago. In doing so, the Court rejects the doctrine of stare decisis (“let the decision stand”) in this case, noting that any departure from this basic tenet of law demands “special justification,” which the majority proceeds to determine.

Justice Abrahamson wrote for the majority, with Justices Crooks and Butler filing concurring opinions. Particularly in light of Justice Butler’s opinion, it is somewhat difficult to determine what the majority is and what it isn’t.

While the “majority” opinion appears to support stacking in such cases, there is no majority in favor of "stacking" the noneconomic cap and wrongful death cap. Actually, Justices Abrahamson, Crooks and Bradley are in the minority on that issue as Justice Butler’s opinion opposes stacking.

The "majority" opinion becomes a minority opinion on that point. In fact, Justice Butler expressly agreed with the position of the defendants in Maurin and would vote for a single global cap if there was a constitutionally valid noneconomic cap. For Bartholomew (and all claims predating April 6, 2006), there was not a valid noneconomic cap because it was invalidated by the Ferdon decision of last year.  Of course, this begs the question of whether the new $750,000 cap will be found constitutional.

The $350,000 pre-death pain and suffering amount was a jury number, not an application of a cap. There was no "stacking" in Bartholomew but rather pre-death damages were "uncapped" along with the capped wrongful death claim. Butler sided with the other three justices only on the point that the majority opinion in Maurin erroneously held the wrongful death limit applied to both pre-death and post-death noneconomic damages.

[Maurin held that when a victim of medical malpractice dies, the cap for wrongful death actions limits all noneconomic damages, which presumably would have been $350,000 instead of $1.2 million. The dissent in Bartholomew would, however, have allowed the plaintiff to have selected one of the caps, obviously whichever was higher, but would not have allowed the award to reach the $1.2 million figure.]

In a strong dissent, Justice Roggensack (joined by Justices Prosser and Wilcox) opined the following: “The lead opinion’s rationale for deciding to overturn our decision is breathtaking. First, it shows a lack of respect for the institutional integrity of our opinions, and second, it shows an equal lack of respect for the policy choices made by the Legislature, as it substitutes its own policy choice for Wisconsin. The lead opinion’s rationale is an insufficient rationale for ignoring stare decisis, one of the pillars that support the institutional integrity of the Court.” Justice Roggensack also noted that a wrongful death claim is totally a creature of statute and that the Legislature could entirely eliminate the claim if it chose.

[My thanks to Attorney Mark Larson who helped walk me through this case and to better understand the decision in light of the Justice Butler concurrence.]

Supreme Court’s First Amendment Protection is Prospective Only in High Profile Defamation Case
On Friday, July 13, with only four of seven justices participating, the Wisconsin Supreme Court upheld the monetary sanctions imposed on Todd Rongstad, a political consultant who was sued for defamation by State Sen. Julie Lassa.

The central, overriding question in this case related to whether the circuit court erroneously exercised its discretion by compelling discovery of Rongstad (including names of members of his client) and imposing sanctions over his claim of constitutional first amendment privilege before determining if Lassa’s complaint stated a claim upon which relief for defamation could be granted.

The Court, in essence, sided with Rongstad’s argument by stating: “When faced with an assertion of constitutional privilege against disclosure of information identifying otherwise-anonymous organization members, the circuit court should decide a pending motion to dismiss for failure to state a claim before sanctioning the party for refusing to disclose that information.”

The majority went on to say: “Having determined that, prospectively (emphasis added), this is the procedure that circuit courts should ordinarily follow, we nonetheless agree with Lassa that the circuit court did not erroneously exercise its discretion here even though it imposed some discovery sanctions before addressing Rongstad’s motion to dismiss.”

In his dissent, Justice Prosser expressed concern about the ability to chill First Amendment rights for all Wisconsin citizens by bringing tort suits such as the defamation case in question in this action. Julie M. Lassa, v. Todd Rongstad and The Valkyrie Group, LLC.

Wisconsin Politics

The Gubernatorial Candidates: A Comparison
Following is a side-by-side profile of the 2006 candidates for Governor. There are some interesting similarities and contrasts in their backgrounds. Both men are lawyers and both have spent the majority of their professional careers in public service. Both volunteered at a young age to serve those less privileged as teachers in Africa. Jim Doyle taught in Tunisia as a member of the Peace Corps and Mark Green taught in Kenya as a member of World Teach Program. Mark Green was born in Massachusetts and went to law school in Wisconsin while Jim Doyle was born in Wisconsin and went to law school in Massachusetts. Both have private practice experience. Mark Green has served in the legislature at both the state and federal levels (14 years). Jim Doyle has no legislative experience but has served as district attorney and Attorney General for a combined 14 years.

Candidates Set for Fall Election
The deadline for filing nomination papers to be a candidate for partisan office has passed (July 11), and things are now lining up for the fall elections, with the State Primary to be held on September 12 and the General Election on November 7.

Candidates Registered By Office

Future issues of Tidbits will provide analyses of key legislative races, focusing first on key primary elections.

As noted above, there are four candidates unopposed in the Senate: Senators. Tim Carpenter (D), Jon Erpenbach (D), Mike Ellis (R), and Scott Fitzgerald (R).

Incumbent Assembly Democrats who are running unopposed are as follows:

Incumbent Assembly Republicans unopposed: 

Political News

Elections Board faces balancing act: Milwaukee Journal Sentinel, July 20, 2006.

Challenger to incumbent Assembly member won't be on ballot: Janesville Gazette, July 20, 2006.

Candidates take to the air: Milwaukee Journal Sentinel, July 18, 2006.

Doyle's campaign unveils first ad of campaign: Oshkosh Northwestern, July 17, 2006.

Feingold takes his war critiques on the road: Milwaukee Journal Sentinel, July 17, 2006.

National Republicans lining up for Gard: Fond du Lac Reporter, July 17, 2006.

Contested races breathe new life into election year: Wausau Daily Herald, July 17, 2006.

Upcoming Fundraisers

July 22

U.S. Rep. Tammy Baldwin (D), Madison