Administrative Law

Administrative Rulemaking – Gubernatorial Approvals of Administrative Rules – Constitutionality of Requiring State Superintendent of Public Instruction to Comply with Approval Requirements

Koschkee v. Taylor, 2019 WI 76 (filed 25 June 2019)

HOLDING: The gubernatorial approval requirement for administrative rulemaking is constitutional as applied to the Superintendent of Public Instruction (superintendent or SPI) and the Department of Public Instruction (DPI).

SUMMARY: This case concerns the provisions of Wis. Stat. chapter 227 that require administrative agencies to 1) submit a statement of scope to the governor for approval before drafting a proposed administrative rule, and 2) submit a final draft of a rule to the governor for approval before submitting it to the legislature. In this original action for declaratory judgment, the petitioners argued that the superintendent and the DPI must comply with these requirements of chapter 227. The superintendent and the DPI contended that the requirement of these gubernatorial approvals is unconstitutional as applied to the superintendent because, pursuant to article X, section 1 of the Wisconsin Constitution, no other officer may be placed in a position equal or superior to that of the superintendent with regard to the “supervision of public instruction.”

In a majority opinion authored by Chief Justice Roggensack, the court concluded that “the gubernatorial approval requirement for rulemaking is constitutional as applied to the SPI and DPI, whether such approval authority is found in 2017 Wis. Act 57 or in previous provisions of ch. 227. Article X, Section 1 vests supervision of public instruction, an executive function, in the SPI. In contrast, when the SPI, through the DPI, promulgates rules, it is exercising legislative power that comes not from the constitution but from the legislature” (¶ 2).

“Stated otherwise, the legislature delegates part of its constitutional power to legislate to the SPI, DPI, and many other agencies in the form of rulemaking power. That the SPI also has the executive constitutional function to supervise public instruction does not transform the SPI’s legislatively delegated rulemaking power into a constitutional supervisory function. Therefore, it is of no constitutional concern that the governor is given equal or greater legislative authority than the SPI in rulemaking” (id.).

The court overruled its prior decision in Coyne v. Walker, 2016 WI 38, 368 Wis. 2d 444, 879 N.W.2d 520, in which it had held that the gubernatorial approval requirements with respect to rulemaking were void as applied to the superintendent and the superintendent’s subordinates (see ¶ 8).

Justice R.G. Bradley and Justice Kelly joined the majority opinion except with regard to a portion “espousing the ostensible importance and necessity of the legislature’s delegation of power to the administrative state” (¶ 42). Justice A.W. Bradley filed a dissenting opinion that was joined in by Justice Dallet. Justice Abrahamson withdrew from participation in this case.

Arbitration

Arbitration Agreements – Appealability of Circuit Court Order Denying Request to Compel Arbitration and For Stay of Pending Lawsuit

L.G. v. Aurora Residential Alternatives Inc., 2019 WI 79 (filed 28 June 2019)

HOLDING: The circuit court’s order denying a request to compel arbitration and stay a pending lawsuit was final for the purposes of appeal.

SUMMARY: After the plaintiff commenced this lawsuit, the defendant filed a motion to compel arbitration pursuant to an arbitration agreement the parties had signed. The defendant also sought a stay of circuit court proceedings pending the arbitration. The circuit court denied the motion, and the defendant appealed.

In an unpublished order, the court of appeals dismissed the appeal. It held that because the order denying arbitration did not dispose of the entire matter in litigation, it was not a final and appealable order as a matter of right under Wis. Stat. section 808.03(1). In a unanimous opinion authored by Justice Kelly, the supreme court reversed the court of appeals.

Wisconsin Statutes section 808.03(1) provides that “[a] final judgment or final order is a judgment, order or disposition that disposes of the entire matter in litigation as to one or more of the parties, whether [it is] rendered in an action or special proceeding….” In this case the court concluded that the order denying the motion to compel arbitration was entered in a “special proceeding” because the order resolved an issue separate and distinct from the issues presented in the pending lawsuit, though it is related and connected to that lawsuit (see ¶ 22). See Voss v. Stoll, 141 Wis. 267, 124 N.W. 89 (1910). The supreme court also concluded that the order disposed of the entire matter in controversy between the parties in the special proceeding (see ¶ 26). Accordingly, the order was final for the purposes of appeal (see ¶ 27).

Justice Abrahamson and Justice A.W. Bradley withdrew from participation in this case.

Criminal Procedure

Search and Seizure – OWI – Implied Consent – Withdrawal of Consent After Blood Sample Withdrawn but Before Sample Is Analyzed

State v. Randall, 2019 WI 80 (filed 2 July 2019)

HOLDING: Testing of a defendant’s blood sample, which had been lawfully obtained with her consent in the first instance, did not constitute a search under the Fourth Amendment, and therefore the defendant could not prevent that testing by revoking her consent before the testing.

SUMMARY: After being arrested for third-offense operating while intoxicated (OWI), defendant Randall was informed of the implied-consent law and agreed to the withdrawal of a blood sample. After the sample was obtained but before the State Laboratory of Hygiene could test it, Randall (through her counsel) sent a letter to the laboratory revoking her consent, asserting her right to privacy in her blood, demanding that no analysis of her blood be conducted, and demanding the immediate return or destruction of her blood sample. The laboratory nevertheless tested the sample, which revealed a blood-alcohol concentration of 0.21.

The defendant moved to suppress the results of the blood test, arguing that the test was an unlawful search under the Fourth Amendment because she had revoked her consent before the laboratory conducted the test. The circuit court agreed and suppressed the evidence.

In an unpublished decision, the court of appeals affirmed, reasoning that the laboratory unconstitutionally tested the defendant’s blood. The appellate court “understood the search to have been one continuous event that commenced with the blood draw and ended with the Laboratory’s analysis. Therefore, the court of appeals said, the Laboratory received [the defendant’s] withdrawal of consent while the search was yet underway” (¶ 13).

The supreme court reversed the court of appeals. There was no majority opinion. The lead opinion was authored by Justice Kelly and was joined in by Justice R.G. Bradley. Justice Kelly concluded that “the State performed only one search when it obtained a sample of Ms. Randall’s blood and subsequently analyzed it for the presence of alcohol or other prohibited drugs. That single search ended when the State completed the blood draw”(¶ 39).

“We further conclude that, although the State must comply with the Fourth Amendment in obtaining a suspect’s blood sample, a defendant arrested for intoxicated driving has no privacy interest in the amount of alcohol in that sample. Where there is no privacy interest, there can be no constitutionally-significant search. Therefore, the State did not perform a search on Ms. Randall’s blood sample (within the meaning of the Fourth Amendment) when it tested the sample for the presence of alcohol. As a result, Ms. Randall’s consent to the test in this case was not necessary” (id.).

Chief Justice Roggensack authored a concurring opinion that was joined in by Justice Ziegler and Justice Dallet. They concluded that “a defendant who has been arrested for driving while under the influence of alcohol has no reasonable expectation of privacy in the alcohol concentration of the blood sample that has been lawfully seized. Therefore, the subsequent testing of the blood sample to determine its alcohol concentration initiates no Fourth Amendment protections through which a defendant may prevent testing the blood sample by ‘revoking’ consent after the blood has been drawn” (¶ 76).

Thus, although there was no majority opinion, five justices agreed that the testing of the defendant’s blood sample, which had been lawfully obtained in the first instance, did not constitute a search because the defendant did not have a reasonable expectation of privacy in the alcohol concentration of her blood sample.

Justice A.W. Bradley filed a dissenting opinion.

Justice Abrahamson withdrew from participation in this case.

Incompetent Defendants – Court Orders for Involuntary Administration of Medication to Restore Defendant’s Competency

State v. Fitzgerald, 2019 WI 69 (filed 13 June 2019)

HOLDING: The standard for ordering involuntary medication to restore a criminal defendant’s competency set forth in Wis. Stat. section 971.14(3)(dm) and (4)(b) is unconstitutional to the extent it requires circuit courts to order involuntary medication based on the standard set forth in paragraph (3)(dm), which does not comport with the requirements of Sell v. United States, 539 U.S. 166 (2003).

SUMMARY: This litigation concerned the standard under which a circuit court may order involuntary medication to restore a defendant’s competency to proceed in a criminal case pursuant to Wis. Stat. section 971.14. Defendant Fitzgerald challenged the constitutionality of this statute, arguing that it is incompatible with Sell v. United States, 539 U.S. 166 (2003).

In Sell, the U.S. Supreme Court held that in limited circumstances the government may involuntarily medicate a defendant to restore his or her competency to proceed to trial. The Supreme Court outlined four factors that must be met before a circuit court may enter an order for involuntary medication: 1) an important governmental interest must be at stake, 2) involuntary medication will significantly further the government’s interest in prosecuting the offense, 3) involuntary medication is necessary to further those interests, and 4) administration of the drugs is medically appropriate, that is, in the patient’s best medical interest in light of his or her medical condition. Sell, 539 U.S. 166.

In a majority opinion authored by Justice R.G. Bradley, the supreme court held that the standard for ordering involuntary medication set forth in Wis. Stat. section 971.14(3)(dm) and (4)(b) “is unconstitutional to the extent it requires circuit courts to order involuntary medication based on the standard set forth in paragraph (3)(dm), which does not comport with Sell” (¶ 2).

Under paragraph (3)(dm), the circuit court must order involuntary medication or treatment if the defendant is “incapable of expressing an understanding of the advantages and disadvantages” of medication or treatment, or the defendant is “substantially incapable of applying an understanding of” his or her mental illness so as to make an informed choice “to accept or refuse medication or treatment” (¶ 20). The court’s holding in this case does not preclude circuit courts from ordering involuntary medication for purpose of restoring competency provided they apply the standard set forth in Sell (see ¶ 32).

“Applying this holding to the present case, the State conceded at oral argument that the circuit court did not consider the side effects of the proposed medication or whether those side effects would interfere significantly with Fitzgerald’s ability to assist in his defense.After reviewing the circuit court’s decision, we agree with the State. The circuit court never found, as it must, ‘that administration of the drugs is substantially likely to render the defendant competent to stand trial’ and ‘unlikely to have side effects that will interfere significantly with the defendant’s ability to assist counsel in conducting a trial defense, thereby rendering the trial unfair.’ See Sell, 539 U.S. at 181. We therefore vacate the circuit court’s order for involuntary medication” (¶ 33).

Another matter before the supreme court in this case involved the application of its decision in State v. Scott, 2018 WI 74, 382 Wis. 2d 476, 914 N.W.2d 141. Scott subjects involuntary medication orders to an automatic stay pending appeal (see ¶ 1). The defendant argued in a petition for a supervisory writ that the stay begins upon entry of the involuntary medication order rather than upon filing a notice of appeal, as the court of appeals ultimately held. The supreme court was equally divided on when the automatic stay established in Scott begins, and therefore it affirmed the decision of the court of appeals (see ¶ 34).

Chief Justice Roggensack filed a concurring opinion that was joined in by Justice Ziegler.

Justice Abrahamson withdrew from participation in this case.

Ineffective Assistance of Counsel – Motion to Withdraw Guilty Plea Before Sentencing – Effect of Attorney Disciplinary Proceeding

State v. Cooper, 2019 WI 73 (filed 20 June 2019)

HOLDING: The circuit court did not erroneously exercise its discretion when it denied the defendant’s motion to withdraw his guilty plea before sentencing.

SUMMARY: The defendant was convicted of armed robbery after he pleaded guilty pursuant to a plea negotiation in which the state agreed to recommend a sentence of three years’ initial confinement followed by three years’ extended supervision.

Before sentencing, he moved to withdraw his guilty plea on the ground that his lawyer, Michael Hicks, had rendered ineffective assistance of counsel. The defendant argued that Hicks was ineffective for failing to meet with him during the 10 months preceding his scheduled trial date, failing to provide him with a copy of the discovery materials as requested, and failing to tell him that his law license had briefly been suspended during the time he represented him. (The license suspension was for reasons unrelated to Hicks’ representation of the defendant.)

The circuit court denied the motion and sentenced the defendant to five years’ confinement followed by five years’ extended supervision.

Two years later and while an appeal of the defendant’s conviction was still pending, the supreme court decided a disciplinary case against Hicks that the Office of Lawyer Regulation (OLR) had brought. See In re Disciplinary Proceedings Against Hicks, 2016 WI 31, 368 Wis. 2d 108, 877 N.W.2d 848. In that proceeding Hicks entered a no-contest plea, agreeing that the OLR referee could use the disciplinary complaint’s facts as a basis for identifying violations of the Rules of Professional Conduct for Attorneys.

Based on that representation, the OLR referee concluded that Hicks had engaged in 19 acts of misconduct, including those summarized above relating to his representation of the defendant. The referee concluded, as a matter of law, that Hicks’ misconduct “prevented [the defendant] from adequately understanding and participating in his own defense” in violation of SCR 20:1.4(a)(2) (¶ 9). After reviewing the referee’s report, the supreme court accepted his factual findings as taken from the OLR’s complaint and agreed with the referee that those factual findings “are sufficient to support a legal conclusion that Attorney Hicks engaged in the professional misconduct set forth in the 19 counts” contained in the OLR’s complaint (¶ 10) (citation omitted).

On appeal, the defendant argued (in part) that the supreme court’s decision in Hicks established that he had received ineffective assistance of counsel before entering his guilty plea. In an unpublished decision, the court of appeals concluded that the defendant had failed to show that Hicks’ allegedly deficient performance caused him prejudice, and it therefore affirmed the circuit court’s decision denying the motion to withdraw the guilty plea.

In a majority opinion authored by Justice Kelly, the supreme court affirmed the court of appeals. It concluded that all facts and allegations about Hicks’ performance that were considered in the disciplinary proceeding had already been brought to the circuit court’s attention before it decided the plea-withdrawal motion (see ¶ 27).

The only exception to that proposition relates to the OLR referee’s conclusion that Hicks’ performance prevented the defendant from adequately understanding and participating in his own defense. However, that conclusion was never adopted by the supreme court in its Hicks decision (see ¶ 20). “Aside from the referee’s statement regarding the effect of Mr. Hicks’ misconduct on [the defendant’s] defense (which we did not adopt), our opinion in Hicks suggests no additional support for [the defendant’s] claim that he received ineffective assistance of counsel prior to entering his plea” (¶ 24).

The court further concluded that the decision in Hicks “does not, of its own force, establish that Mr. Hicks provided ineffective assistance of counsel” (¶ 28). That leaves the defendant with the burden of proving that his lawyer’s performance was deficient and that the deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668 (1984).

Said the court: “Even if we agreed that Mr. Hicks’ misconduct rose to the level of deficient performance within the meaning of Strickland (a question on which we express no opinion), [the defendant] would nonetheless be unable to prove the prejudice element of the Strickland analysis” (¶ 28). When counsel’s alleged deficiency concerns the plea process, Hill v. Lockhart, 474 U.S. 52 (1985), says the prejudice component specifically requires that the defendant show there is a reasonable probability that, but for counsel’s errors, the defendant would not have pleaded guilty and would have insisted on going to trial (see ¶ 29).

In this case the defendant did not show that kind of prejudice. As a matter of fact, successor counsel told the circuit court that “if the Court were to allow [the defendant] to withdraw his plea, he still might decide to enter a plea, because he does like – he’s satisfied, I guess, with the recommendation that [the State] made” (¶ 30). Said the supreme court: “This does not describe a substantial likelihood of a different outcome. At best, it describes something conceivable” (id.).

Justice Dallet filed a dissenting opinion that was joined in by Justice A.W. Bradley. Among other things, Justice Dallet noted that “both Strickland and Hill involved a motion to withdraw a plea post-sentencing and that there is no United States Supreme Court or Wisconsin precedent requiring a defendant to show prejudice as a result of counsel’s deficient performance when moving to withdraw a plea pre-sentencing” (¶ 42) (emphasis added).

Justice Abrahamson withdrew from participation in this case.

Insurance

Subrogation – Waivers – Exculpatory Contracts

Rural Mut. Ins. Co. v. Lester Bldgs. LLC, 2019 WI 70 (filed 18 June 2019)

HOLDING: A subrogation waiver in a building contract was not voided by Wis. Stat. section 895.447, nor was the waiver an unenforceable exculpatory contract.

SUMMARY: A recently built dairy barn was destroyed in a storm. The owner’s insurer, Rural Mutual, paid its insured for the damages and then brought a subrogation action against the contractor who built the barn. The contractor in turn filed third-party cross-claims against various subcontractors and their insurers (hereinafter the contractors). The circuit court granted summary judgment in favor of the contractors based on a subrogation waiver provision in the building contract. In an unpublished decision, the court of appeals affirmed.

The supreme court affirmed in an opinion authored by Justice Dallet. Rural Mutual contended that Wis. Stat. section 895.447 voids the subrogation waiver in the building contract and, alternatively, constitutes an unenforceable exculpatory contract that violates public policy. The supreme court disagreed.

The subrogation waiver did not limit or eliminate “tort liability,” as precluded by section 895.447. “Instead, the subrogation waiver waives Herman’s [the insured owner’s] right to recover damages from the Contractors for their wrongful acts to the extent those damages are covered by a property insurance policy such as the one between Herman and Rural Mutual. Responsibility for payment of damages, the remedy for tort liability, has shifted from the Contractors to Rural Mutual” (¶ 15).

For the same reason, the subrogation waiver did not relieve any party from liability caused by its own negligence; thus, it was not an unenforceable exculpatory contract (¶ 18). “The subrogation waiver in this case does not immunize the allegedly negligent parties from liability or require the injured party to go uncompensated, and thus it is not an unenforceable exculpatory contract contrary to public policy” (id.).

Justice Kelly, joined by Justice A.W. Bradley, dissented. “The court’s error is really pretty simple. Where the legislature said that a contract may not limit a tortfeasor’s liability, the court heard that a contract may not limit the victim’s right to be made whole. These are not the same things” (¶ 26).

Justice Abrahamson and Justice Ziegler did not participate in this case.

Mental Health Law

Wisconsin Statutes Chapter 51 Commitments – Extensions – Jurisdiction – Defaults

Waukesha Cty. v. S.L.L., 2019 WI 66 (filed 12 June 2019)

HOLDING: In a proceeding to extend an existing Wis. Stat. chapter 51 mental commitment, the circuit court had personal jurisdiction and properly entered a default judgment when the respondent failed to appear for the final hearing.

SUMMARY: In August 2016, a county sheriff detained S.L.L. on an emergency basis under Wis. Stat. section 51.15(1). Following a hearing, the judge found S.L.L. to be mentally ill, ordered inpatient placement, and determined she was not competent to refuse psychotropic medication or treatment (see ¶ 5). Later, the county applied for a 12-month extension of S.L.L.’s commitment, alleging that she was not in compliance with various conditions. When S.L.L. failed to appear for the scheduled extension hearing in person (her lawyer was present), the judge entered a default judgment against her that granted the extension.

The circuit court eventually cancelled the orders because S.L.L. could not be located. Nonetheless, S.L.L. appealed. The court of appeals issued a one-judge opinion granting the county’s motion to dismiss the appeal as moot (see ¶ 8). The supreme court granted S.L.L.’s petition for review.

The supreme court affirmed the court of appeals in an opinion authored by Justice Kelly. First, the court had personal jurisdiction. Mootness did not preclude consideration, because Wis. Stat. chapter 51 commitment orders “will expire before we have a chance to review them because their maximum statutory duration is only one year” (¶ 16).

S.L.L. contended that an extension petition represents a “new proceeding” that must comport with all statutory and constitutional requirements governing an initial commitment proceeding (¶ 17). The statutory language and case law indicate otherwise: extensions are not new and separate proceedings (see ¶ 19). S.L.L. also received adequate notice regarding the extension; a document containing a detailed factual recitation was not necessary (see ¶ 24). Finally, such notice was properly served on her lawyer, as permitted by Wis. Stat. section 801.14(2) (see ¶ 27).

Second, S.L.L. was subject to a default ruling for failing to appear at the extension hearing. Rights are subject to waiver or forfeiture. S.L.L. was obligated to explain why her failure to cooperate or appear should not count as a forfeiture, which she did not do (see ¶ 34).

The opinion assesses the various default options that appear in Wis. Stat. chapter 51, none of which precluded the default taken here. “Circuit courts have the authority, pursuant to Wis. Stat. § 806.02(5), as incorporated by § 51.20(10)(c), to enter default judgment for failing to appear at properly-noticed hearings in which the court has jurisdiction over the person. In this case, the circuit court had jurisdiction over [S.L.L], the Extension Hearing had been properly noticed, [S.L.L.] had previously appeared in the action (specifically, at the initial commitment hearing), and she failed to appear for trial. That satisfies the prerequisites for entry of default under § 806.02(5)” (¶ 38).

The court declined to address the factual sufficiency for the extension order on mootness grounds (see ¶ 41).

Justice A.W. Bradley dissented, joined by Justice Abrahamson and Justice Dallet. They argued that the majority opinion permits proceedings in absentia and “creates a procedural end-run around a merits hearing in which an individual’s physical liberty hangs in the balance” (¶ 46).

Municipal Law

Conditional Use Permits – State Preemption

Enbridge Energy Co. v. Dane Cty., 2019 WI 78 (filed 27 June 2019)

HOLDING: A state statute stripped the county of authority to impose additional conditions on a conditional use permit.

SUMMARY: An interstate pipeline company applied to the county for a conditional use permit (CUP) that would allow it to transport liquid petroleum through its pipelines in the county. The county issued the CUP but added two provisions relating to insurance coverage. Meanwhile, the Wisconsin Legislature passed 2015 Wis. Act 55, “which prohibits counties from requiring an interstate pipeline operator to obtain additional insurance when the pipeline operating company carries comprehensive general liability insurance with coverage for ‘sudden and accidental’ pollution liability” (¶ 1). A circuit court struck the two insurance conditions from the CUP as unenforceable.

In an unpublished decision, the court of appeals reversed, finding that the operator failed to show it carried sufficient insurance to trigger Act 55. The company maintained that its coverage comports with Act 55.

The supreme court reversed the court of appeals in an opinion authored by Justice R.G. Bradley. The opinion focuses on the decision made by the county board, not the lower courts (see ¶ 18). Although the county conceded that the conditions were unenforceable, landowners who also sued the pipeline company argued in their favor. “The certiorari record contained ample and uncontroverted evidence that [the company] carried the requisite insurance” (¶ 22). Nor does the statute mandate that the operator “maintain” coverage, though the court found this to be a very unlikely happenstance (¶ 23).

The opinion also considered and rejected the landowners’ sundry contentions about the company’s “time element” pollution insurance, holding that the statute “does not require coverage for all unexpected and unintended pollution regardless of when the pollution event is discovered or reported to the insurer” (¶ 24).

As for the remedy, the court acknowledged that in some circumstances a remand to the municipal authority is appropriate, but that was not the case here (see ¶ 40). The county had “knowingly issued a CUP with unlawful conditions” (¶ 41).

Justice A.W. Bradley dissented on grounds that the majority erred in its construction of the terms “carries” and “sudden and accidental” (¶ 49).

Justice Abrahamson and Justice Dallet withdrew from participation in this case.

State Government

Wisconsin Legislature – Constitutionality of “Extraordinary Sessions”

League of Women Voters v. Evers, 2019 WI 75 (filed 21 June 2019)

HOLDING: The circuit court erred in declaring the December 2018 extraordinary session of the Wisconsin Legislature unconstitutional, enjoining enforcement of the acts passed during that session, and vacating the 82 gubernatorial appointments confirmed by the Wisconsin Senate during the session.

SUMMARY: Article IV, section 11 of the Wisconsin Constitution provides that “[t]he legislature shall meet at the seat of government at such time as shall be provided by law, unless convened by the governor in special session.” “Provided by law” means the Wisconsin Statutes. See State v. City of Oak Creek, 2000 WI 9, 232 Wis. 2d 612, 605 N.W.2d 526.

Wisconsin Statutes section 13.02(3) provides that “[e]arly in each biennial session period, the joint committee on legislative organization shall meet and develop a work schedule for the legislative session … to be submitted to the legislature as a joint resolution.” The legislature adopted its work schedule for the 2017-2018 biennial session in 2017 Senate Joint Resolution 1, which, among other things, makes multiple references to “extraordinary sessions.”

In this litigation the plaintiffs contended that the three acts passed and the 82 gubernatorial appointments confirmed by the Senate during the December 2018 extraordinary session of the legislature were invalid because extraordinary sessions are unconstitutional. The circuit court agreed with the plaintiffs. After granting a petition to bypass the court of appeals, the supreme court reversed the circuit court’s decision.

Writing for a majority of the court, Justice R.G. Bradley concluded that “extraordinary sessions do not violate the Wisconsin Constitution because the text of our constitution directs the Legislature to meet at times as ‘provided by law,’ and Wis. Stat. § 13.02(3) provides the law giving the Legislature the discretion to construct its work schedule, including preserving times for it to meet in an extraordinary session. The work schedule the Legislature formulated for its 2017-2018 biennial session established the beginning and end dates of the session period and specifically contemplated the convening of an extraordinary session, which occurred within the biennial session” (¶ 2).

“The circuit court invaded the province of the Legislature in declaring the extraordinary session unconstitutional, enjoining enforcement of the three Acts, and vacating the 82 appointments. We vacate the circuit court’s order and remand the matter to the circuit court with directions to dismiss the [plaintiffs’] complaint” (id.).

Justice Dallet filed a dissenting opinion that was joined in by Justice Abrahamson and Justice A.W. Bradley.

Torts

Immunity – Expert Testimony

Pinter v. Village of Stetsonville, 2019 WI 74 (filed 20 June 2019)

HOLDING: The plaintiff’s claims against a village for negligence and private nuisance based on the flooding of his basement were properly dismissed

SUMMARY: Pinter sued the village of Stetsonville after wastewater backed up into his basement. The circuit court dismissed his claims for negligence and private nuisance. In an unpublished decision, the court of appeals affirmed.

The supreme court affirmed the court of appeals in an opinion authored by Justice A.W. Bradley. The negligence claim was based on the village’s practice of pumping water from “the pit” when it reached a certain level, a practice it allegedly failed to follow here. The court held that any such practice was predicated on an “oral” (unwritten) “rule of thumb” respecting the water level. As such, this “oral policy” did not give rise to a ministerial duty because it “was rife with discretion” (¶ 52). Thus, the village was immune from the claim under Wis. Stat. section 893.80(4).

The majority (again) rejected a different approach to governmental immunity as set forth in the dissent because it would work an unacceptable “sea change” in long-standing law (¶ 34).

The lower courts also properly rejected the nuisance claim because it required expert testimony to substantiate the claim. None was offered. The workings of municipal sewer systems are not common knowledge (see ¶ 64).

Justice Dallet dissented, joined by Justice R.G. Bradley and Justice Kelly. The dissenting justices said that the majority’s approach to governmental immunity is “artificial” and “impractical” (¶ 72). The dissent posited another approach based on the statute’s plain language. The dissent also concluded that the record as a whole created a genuine issue of material fact on the nuisance claim; additional expert testimony was not needed.

Statute of Limitation – Medical Malpractice – Borrowing Statute

Paynter v. ProAssurance Wis. Ins. Co., 2019 WI 65 (filed 7 June 2019)

HOLDING: In a medical malpractice case, a negligent-diagnosis claim was governed by Wisconsin law and was not time barred by the statute of limitation, but an informed-consent claim was controlled by Michigan law and was time barred under Michigan statutes.

SUMMARY: Plaintiffs David and Kathryn Paynter lived in Michigan, near the Wisconsin border. They sued a doctor who practiced in both Wisconsin and Michigan for negligently failing to diagnose David’s cancer and for an informed-consent violation. The circuit court granted summary judgment in favor of the defendants on grounds that Michigan’s shorter statutes of limitation barred both claims. In a published decision, the court of appeals affirmed, albeit for different reasons. See 2018 WI App 27.

The supreme court affirmed in part and reversed in part in an opinion authored by Justice Abrahamson. “On this issue of first impression, we hold that in medical malpractice cases involving a negligent misdiagnosis that results in a latent, though continuous, injury, whether the action is ‘foreign’ for purposes of Wisconsin’s borrowing statute is determined by whether the plaintiff's first injury occurred outside of Wisconsin” (¶ 10).

The opinion outlines the law governing the borrowing statute, which uses the “unique” phrase “foreign cause of action” (¶ 40). Case law applies a “place of injury” test that has proved to be elusive in later cases when the plaintiff’s place of injury “was not easily pinned down to one particular time and location” (¶ 49). Other cases involved, for example, a “discrete injury” or “multiple discrete injuries,” yet “the instant case involves an alleged negligent misdiagnosis that resulted in a latent, though continuous, injury” (¶ 62).

The supreme court agreed with the court of appeals that “in medical malpractice cases involving a negligent misdiagnosis that results in a latent, though continuous, injury, whether the action is ‘foreign’ for purposes of Wisconsin’s borrowing statute is determined by whether the plaintiff’s first injury occurred in Wisconsin” (¶ 72). The “first injury” must be “capable of ascertainment to a reasonable, non-speculative degree” (¶ 74).

When that place is “unknowable,” but could have occurred within or outside of Wisconsin, Wisconsin’s borrowing statute does not apply” (id.). On this record, the place of injury under the negligence claim was speculative; thus, the borrowing statute did not apply and the claim was timely under Wisconsin’s statute of limitation (see ¶¶ 86, 88).

The supreme court agreed with the court of appeals that the informed-consent claim was foreign under the borrowing statue and thus governed by Michigan law. The test here centers on where an “injury was felt” – and here it was “felt” in Michigan (¶ 99). Because it was undisputed that the informed-consent claim was untimely under Michigan law, summary judgment was properly granted to the defense (see ¶ 102).

Justice A.W. Bradley concurred in part and dissented in part. The dissent centered on the majority’s analysis of the informed-consent claim, which she found unworkable (see ¶ 121).

Justice R.G. Bradley concurred in part and dissented in part as well, joined by Justice Kelly. She concluded that the majority’s test lacked “statutory support and will result in absurdities” (¶ 128).