Wisconsin courts, the Legislature, and Gov. Evers's administration are leading the state in its response to COVID-19. Wisconsin's state Supreme Court election gained national attention as various lawsuits sought to make changes to the election date and in person and absentee voting requirements. This WCJC Newsletter covers the election and other COVID-19 updates in Wisconsin, including the growing number of lawsuits related to the coronavirus. Also in this edition: the latest decisions from the Wisconsin Supreme Court and Court of Appeals.
Please feel free to forward this newsletter to others who may benefit from the information it contains.
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After Court Rulings, In-Person Voting Proceeds in State Supreme Court Election
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After rulings from the Supreme Court of the United States and the Wisconsin Supreme Court the night before election day upheld the April 7 date and absentee voting requirements, Wisconsin's election for state Supreme Court proceeded with few changes. In-person voting was held, and absentee voter requirements were largely the same (though at record high numbers). Wisconsin's spring elections included the race between incumbent state Supreme Court Justice Daniel Kelly and Judge Jill Karofsky, as well as the Democratic primary for president and many local offices. Results will not be released until April 13, the deadline for clerks to receive absentee ballots.
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| States, Federal Government Seek to Curb Coronavirus Lawsuits |
As COVID-19 strains the health care system and economy, lawsuits related to the coronavirus are already beginning. Some states and the federal government are taking action to limit liability for businesses and health care workers acting in good faith to help address the pandemic. WCJC is working with Wisconsin legislators to do the same. President of the U.S. Chamber Institute for Legal Reform (ILR) Harold Kim has stated that "limiting litigation abuse is essential to ensuring the stability and economic recovery from COVID-19."
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| Wisconsin Courts Respond to COVID-19 |
As Wisconsin government and the public struggle with the COVID-19 pandemic, Wisconsin courts remain operational but with reduced calendaring.
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| Wisconsin DOJ Actions on COVID-19 |
Since the outbreak of the COVID-19 pandemic, Wisconsin Attorney General Josh Kaul has taken several actions to address the crisis.
Continue reading for a timeline of the Department of Justice's (DOJ) response.
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Other Multistate Actions by AG Kaul
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In addition to actions related to COVID-19, Wisconsin Attorney General Josh Kaul has recently joined several multistate actions on various topics.
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| PFAS Update: Current Status of Legislation, Rulemaking Continues |
When the state Assembly's legislative session wrapped up in February, WCJC closely monitored legislation to address PFAS chemicals contamination in Wisconsin. With the Legislature's attention on COVID-19 for now, PFAS bills have moved out of focus but could be revived when the state Senate reconvenes to take up the remaining bills from the regular legislative session. Meanwhile, the Wisconsin Department of Natural Resources (DNR) is continuing to work on rulemaking to set standards for PFAS in surface water, groundwater, and drinking water.
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| Gov. Evers Signs Bill to Create Certificates of Qualification for Employment for Ex-Offenders |
Gov. Tony Evers has signed into law legislation (Act 123) that creates a Council on Offender Employment to issue certificates of qualification for employment (CQEs) to ex-offenders. The bill seeks to reduce recidivism by helping ex-offenders re-enter the workforce. Wisconsin Civil Justice Council and Wisconsin Manufacturers & Commerce worked closely with the bill's authors, Sen. Alberta Darling (R-River Hills) and Rep. Rob Hutton (R-Brookfield), on the immunity provision to ensure that employers are protected from frivolous lawsuits when they hire ex-offenders possessing a CQE.
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| U.S. Chamber Releases Research on Third Party Litigation Financing |
Recent research from the U.S. Chamber Institute for Legal Reform (ILR) looks at how the third party litigation financing industry has over the last decade grown exponentially, fueling abusive litigation. The ILR policy paper recommends several approaches lawmakers can take to address third party litigation financing, including some that have already been enacted in Wisconsin.
Continue reading about third party litigation financing.
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SUPREME COURT
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Subtitle
Month Year |
| Wisconsin Supreme Court Oral Arguments - March & April |
Due to COVID-19 concerns, the Wisconsin Supreme Court has canceled its oral arguments for most of March and April. New dates for oral arguments will be set at a later date, unless all parties stipulate to the court proceeding with a decision without oral arguments. As of right now, oral arguments are still on for April 20.
Continue reading about the cases of note that were scheduled to be heard.
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Wisconsin Supreme Court Accepts New Veto Authority Case
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The Wisconsin Supreme Court recently accepted a new case, Wisconsin Small Business United, Inc. v. Brennan (2019AP2054), which will decide whether the governor's partial veto authority allows him to change dates in a piece of legislation. Petitioners challenge the constitutional validity of two vetoes by Gov. Scott Walker in the 2017-19 budget bill.
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| Piper v. Jones Dairy Farm (Donning & Doffing Compensation) |
In Piper v. Jones Dairy Farm (2020 WI 28), the Wisconsin Supreme Court determined that employees' donning and doffing activities are compensable under state law and such compensation cannot be precluded by collective bargaining agreement.
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| Lang v. Lions Club of Cudahy Wisconsin, Inc. (Recreational Immunity) |
In Lang v. Lions Club of Cudahy Wisconsin, Inc. (2020 WI 25), the Wisconsin Supreme Court held that recreational immunity applied to a sound engineer who set up cords that injured a woman at a music performance because the sound engineer was an agent of the festival owner.
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DSG Evergreen Family Limited Partnership v. Town of Perry (Eminent Domain)
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In DSG Evergreen Family Limited Partnership v. Town of Perry (2020 WI 23), a unanimous Wisconsin Supreme Court held that claim preclusion did not apply, but the plaintiff had no private right of action against the town, barring this eminent domain case.
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| Town of Wilson v. City of Sheboygan (Annexation) |
In Town of Wilson v. City of Sheboygan (2020 WI 16), the Wisconsin Supreme Court upheld the approval of Kohler Co.'s annexation of land from the Town of Wilson to the City of Sheboygan for the purpose of developing a golf course.
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| Choinsky v. Employers Insurance Co. of Wausau (Duty to Defend) |
In Choinsky v. Employers Insurance Co. of Wausau (2020 WI 13), a 5-1 Wisconsin Supreme Court held that insurers did not breach their duty to defend when they did not immediately accept the defense of their insured. Insurers may initially deny a tendered claim, then follow a judicially preferred method of determining coverage to avoid breaching duty to defend.
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Mueller v. TL90108, LLC
(Wrongful Detention)
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In Mueller v. TL90108, LLC (2020 WI 7), the Wisconsin Supreme Court unanimously determined that plaintiffs may file a wrongful detention claim against a possessor of previously converted property. The statute of repose for wrongful detention begins when the new possessor takes control of the vehicle, not necessarily when a demand for return of the property is made.
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Veritas Steel, LLC v. Lunda Construction Co. (Successor Liability)
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In Veritas Steel, LLC v. Lunda Construction Co. (2019 WI 3), the Wisconsin Supreme Court declined to expand the "de facto merger" and "mere continuation" exceptions to the general rule against successor liability.
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Hinrichs v. Dow Chemical Co.
(Fraudulent Representation)
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In Hinrichs v. Dow Chemical Co. (2020 WI 2), the Wisconsin Supreme Court dismissed misrepresentation claims on the basis of the economic loss doctrine, but ruled the plaintiff might be considered "the public" for the purposes of bringing a statutory fraudulent representation claim. The court further found that heightened pleading standards for fraud claims do not apply to claims made under Wisconsin's fraudulent representation statute (Wis. Stat. ยง 100.18).
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COURT OF APPEALS
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Subtitle
Month Year |
| Wisconsin Court of Appeals Rules in Voter Registration Lawsuit |
*This case is recommended for publication.
In Zignego v. Wisconsin Elections Commission (
2019AP2397/2020AP112
), the Court of Appeals District IV overturned a circuit court order mandating the Wisconsin Elections Commission deactivate the registrations of Wisconsin voters who had recently moved and failed to timely apply for continuation of registration.
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| Applegate-Bader Farm, LLC v. DOR (Agency Rulemaking Procedures) |
*This case is recommended for publication.
In Applegate-Bader Farm, LLC v. DOR (2018AP1239), the Court of Appeals District IV held that the Wisconsin Department of Revenue (DOR) complied with rulemaking procedures in Wis. Stat. Ch. 227 when it promulgated new rules regarding property tax classification.
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| Nooyen v. Wisconsin Electric Power Co. (Construction Statute of Repose) |
*This case is recommended for publication.
In Nooyen v. Wisconsin Electric Power Co. (2019AP289), the Court of Appeals District III dismissed safe place statute claims based on the plaintiff's husband's development of mesothelioma from asbestos. The court found the construction statute of repose barred the claims.
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Stroede v. Society Insurance
(Duty of Care to Trespassers)
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*This case is recommended for publication.
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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| More Court of Appeals Decisions |
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| April 8, 2020 Written and compiled by Paige Scobee Hamilton Consulting Group |
Wisconsin Civil Justice Council
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