On Whose Authority? Recent COVID-19 Lawsuits Challenge Claims of Constitutional and Statutory Authority

Back in May, Wisconsin Legislature v. Palm settled the question of whether the Wisconsin Department of Health Services had explicit authority to extend a state of emergency. (Short answer: no.) But as policies surrounding COVID-19 prevention continue full force, it looks like the Wisconsin Supreme Court will hear three more lawsuits challenging the authority of government officials: […]

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Wisconsin Supreme Court Accepts Five New Cases

The Wisconsin Supreme Court recently accepted five new cases. Of note: United America, LLC v. DOT (2018AP2383) – Nonstructural Damages in DOT Takings) In this case, the Court of Appeals District III held that nonstructural damages to private property are not compensable when the Department of Transportation (DOT) makes a change of grade to an abutting street. The […]

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Wisconsin Supreme Court 2020-21 Term Begins August 1 with Karofsky in, Kelly out.

Wisconsin’s Supreme Court 2020-21 term began August 1, 2020, with initial oral argument set for September 8. Go here for a list of cases to be heard in September and here for the 2020-21 court calendar. With the new term brings in a significantly different court. Conservative Justice Daniel Kelly is replaced by liberal Justice Jill Karofsky. Karofsky was sworn […]

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Wisconsin Supreme Court Accepts New Cases

The Wisconsin Supreme Court accepted three new cases this past week. Of particular note: Stroede v. Society Insurance and Village of Slinger v. Polk Props., LLC. In Stroede v. Society Insurance (2018AP1880/2018AP2371), the Court of Appeals, District I found the defendant immune from liability for a trespasser’s injury because the defendant was a “lawful occupant” on the premises where the incident occurred. […]

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Commercial Docket Pilot Project Expands

The Wisconsin Supreme Court recently ordered the extension and expansion of the state’s Commercial Docket Pilot Project. The order extends the length of the pilot for two additional years and expands the project to District 10, District 2 and Dane County. These regions, in addition to existing regions District 8 and Waukesha County, will now […]

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Kathleen Papa v. DHS (Act 21 Explicit Authority Requirement)

In Papa v. DHS (2020 WI 66), the Wisconsin Supreme Court ruled that DHS’s practice of recouping wages from Medicaid providers for minor documentation errors fell outside the boundaries of its explicit statutory authority. Facts In Wis. Stat. § 49.45(3)(f)1.-2, the Wisconsin Legislature authorizes the Department of Health Services (DHS) to audit in-home Medicaid providers […]

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WSBU v. Brennan & Bartlett v. Evers (Gubernatorial Vetoes)

Released on the same day, WSBU v. Brennan (2020 WI 69) and Bartlett v. Evers (2020 WI 68) both involve challenges to gubernatorial vetoes. The court dismissed WSBU v. Brennan but declared 3 of the 4 challenged vetoes in Bartlett v. Evers unconstitutional. Under the Wisconsin Constitution (Article V, Section 10), governors can partially veto […]

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SEIU Local 1 v. Vos (Separation of Powers)

In SEIU Local 1 v. Vos (2020 WI 67) the Wisconsin Supreme Court upheld provisions from 2017 Wis. Act 369 and 2017 Wis. Act 370 (including legislative involvement in litigation, legislative review of proposed changes to security in the capitol, temporary suspension of administrative rules, and the codification of the non-deference doctrine from Tetra Tech […]

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Wisconsin Supreme Court Declares Safer at Home Order Unenforceable

The Wisconsin Supreme Court has issued a 4-3 decision in Legislature v. Palm, declaring the Department of Health Services’s (DHS) “Safer at Home” order unenforceable and immediately striking down the order. The court held that the Safer at Home order is a “rule” that was required to go through statutory rulemaking processes and that the […]

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Legislature Files Legal Challenge to DHS “Safer At Home” Order Extension

On April 16, Gov. Tony Evers directed Department of Health Services Secretary-designee Andrea Palm to extend Wisconsin’s Safer at Home Order to May 26 under Emergency Order #28. Less than a week later, the Republican-led Wisconsin Legislature filed a lawsuit challenging DHS’s authority to issue such an order. DHS issued the order under Wis. Stat. §§ […]

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