Recall of Elected Officials in Wisconsin

By John DiMotto

The political upheaval in Wisconsin, as a result of events in the Wisconsin Legislature over the past two months, has sparked a number of recall elections. While there has been much debate about recalls, there has been little discussion about the law itself. In this blog, I will address both Recall Law and the Recall Process.

Recall Law

Recall law is not unique to Wisconsin. Thirty-eight states have provisions for allowing recall of elected officials. Eleven states allow recall of State, local and federal elected officials. (Wisconsin is one of the eleven.) Seven states only allow recall of State and local elected officials. Twenty states only allow recall of local elected officials. Twelve state have no provisions for recall of elected officials.

Twelve of the states that allow recall of elected officials only do so if certain conditions - "grounds" - are present. However, a majority of the states allow recalls to proceed for no reason at all. Wisconsin is one of the states where grounds are not required.

In Wisconsin, the right of recall is provided for in the Wisconsin Constitution in Article XIII, Section 12. This provision was first enacted in 1926 and amended in April, 1981. It sets forth:

1) The qualified electors of the state, of any congressional, judicial or legislative district or of any county may petition for the recall of any incumbent elective officers after the first year of the term for which the incumbent was elected. (The right of recall has been extended to local elected officials by virtue of Wisconsin Statute section 9.10.)

2) A recall petition must be signed by electors equalling at least 25% of the vote cast for the office of governor at the last preceding election in the area which the elected official represents.

3) If a petition is certified a recall election shall be held on the Tuesday of the 6th week after the petition is filed.

4) The incumbent continues to serve and perform his/her duties until the recall election results are officially declared.

5) Unless the incumbent declines within 10 days after the filing of the petition, the incumbent shall be on the ballot at the recall election without the need to meet any filing requirements. Other candidates must comply with the law for special elections. If more than two people compete for a nonpartisan office, a recall primary shall be held. The two persons receiving the highest number of votes shall be the two candidates in the recall election, EXCEPT that if any candidate receives a majority of the votes, that candidate shall assume office for the remainder of the term and a recall election shall not be held. For any partisan office, a recall primary shall be held for each political party which is by law entitled to a separate ballot and from which more than one candidate competes for the party's nomination in the recall election. The person receiving the highest number of votes in the recall primary for each political party shall be that party's candidate in the recall election. Independent candidates and candidates representing political parties not entitled by law to a separate ballot shall be shown on the ballot for the recall elections only.

6) When a recall primary is required, it shall be held on the Tuesday of the 6th week after the filing of the petition with the recall election to be held on the Tuesday of the 4th week after the recall primary.

7) The person receiving the highest number of votes in the recall election shall be elected for the remainder of the term.

8) After one such petition and recall election, no further recall petition shall be filed against the same officer during the term for which he/she was elected.

9) Laws may be enacted to facilitate the operation of Art. XIII, Sec. 12 but no law shall be enacted to hamper, restrict or impair the right of recall. (The Wisconsin Legislature enacted 9.10 to facilitate this constitutional provision.)

Recall Process

Section 9.10 implements Article XIII, Section 12 by providing the process/framework.

1) A petition for recall of a state or federal elected official does not require any reason.

2) A petition for recall of a local elected official must contain a statement of the reason for the recall which is related to the official responsibilities of the official for whom removal is sought. see 9.10(2)(b).

3) A petition may only be filed after the petitioner has first filed a registration statement with the filing officer.

4) A petition may not be circulated until the registration is completed.

5) A petition must be filed on or before 5:00 pm on the 60th day commencing after registration.

6) Requirements for signatures to be valid and counted are set forth in 9.10(2)(e). (i.e. properly signed, dated, proper residency, qualifed elector, certification of circulator completed, etc)

7) Any challenge to the validity of signatures shall be presented by affidavit or other supporting evidence demonstrating a failure to comply with statutory requirements.

8) Burden of proof is on a challenger to the petition and signatures.

9) Time limit for challenger filing written challenges to petition -- within 10 days of filing. Time limit for petitioner to file a rebuttal -- within 5 days after challenge filed. Time limit for challenger to file a reply -- within 2 days after rebuttal filed. Certification of petition by filing officer -- within 14 days after filing of a reply. Determination on sufficiency of petition -- within 31 days after certification. Time limit to file a petition for writ of mandamus or prohibition with the circuit court by petitioner or elected official for the court to decide the sufficiency of the petition -- within 7 days of the filing officer's determination on sufficiency of petition.

10) There shall be separate elections for each official subject to recall.

The Government Accountability Board has information on its website with respect to the recall process.

While the right of recall is recognized in the Wisconsin Constitution, there is a debate over its use. There are many people who believe that recalls should be the exception and not the rule. They believe that mere disagreement over the decisions made by an elected official should not be the basis for a recall, rather it should be reserved for malfeasance, misconduct, failure to perform duties or particularly egregious behavior. They believe that absent such circumstances that the elected official should have the right to finish out his/her term and be accountable at the next election cycle. On the other hand, there are many people who believe that if they do not have confidence in an elected official, or if an elected official has "lied" to them or disappointed them or if they do not believe that an elected official is serving their interest or if they just don't like an elected official or even if they have no reason at all that they should have the ability to pursue recall of any state or federal elected official.

Whether you agree or disagree with the exercise of the right of recall, it is a recognized right of citizenship; a right of expression guaranteed by the Wisconsin Constitution.

Contempt Law in Wisconsin - Part Two - Case Law Construction

By John DiMotto

In my last blog, I focused on the statutory provisions regarding Contempt of Court in Chapter 785. Today, I want to focus on how appellate courts have construed the statutory law.

In Evans v. Luebke, 267 Wis.2d 596 (Ct. App. 2003), the Court stated that contempt power is an inherent judicial power, one that does not necessarily derive from legislative mandate and which inheres in the definition of a court. However, if a statute prescribes the procedure in prosecution of contempt, or limits the penalty, the statute controls.

In Getka v. Lader, 71 Wis.2d 237 (1976), the Court recognized that the Wisconsin Legislature has given to every court and every judge in the State of Wisconsin, the power to punish a person for not following a court order via contempt. However, the "thing" ordered to be done must be within t he power of the person so ordered.

In the case In re: Adam's Rib, 39 Wis.2d 741 (1968), the Court stated that the power to punish for contempt is to be used sparingly and should not be used arbitrarily, capriciously or oppressively and that whether a person who is under an order to do a "thing" must have it within the person's capability. At a contempt hearing, the burden is on the alleged contemnor to give a satisfactory explanation as to why he/she failed to comply with the court order.

In O'Connor v. O'Connor, 48 Wis.2d 535 (1970), the Court stated that it has long been settled in Wisconsin, that a person cannot be held in contempt of court for failing to comply with an order unless it is willful and contemptuous. If the refusal is to pay money, it cannot be as the result of an inability to pay.

In Staples v. Staples, 87 Wis. 592 (1894), the Court stated that were an inability to pay is willfully brought about by a person himself/herself with the intent to avoid making a payment, the refusal becomes contumacious and the inability so resulting will not purge the person of the contempt.

In Schroeder v. Schroeder, 100 Wis.2d 625 (1981), the Court stated that a sentence to jail for a civil contempt is not to punish for not obeying the court's order but rather to enforce the private right of one of the parties to the action.

In Frisch v. Henrichs, 304 Wis.2d 1 (2007), the Court stated that a purge condition and sanction can be the same and that when a purge condition is outside compliance with the original court order it must serve remedial aims, the contemnor must be able to do it and the condition must be reasonably related to the nature of the contempt.

In City of Wisconsin Dells v. Dells Fireworks Inc., 197 Wis.2d 1 (Ct. App. 1995), the Court stated that courts may impose remedial sanctions for the purpose of termination a continuing violation of a court order.

In Carney v. CNH Health and Welfare Plan, 305 Wis.2d 443 (Ct. App. 2007), the Court stated that an order which requires specific conduct to do or to refrain from doing can be enforced by contempt. The specific term "enjoin" or "injunction" is not necessary before a court can exercise contempt powers.

In State ex rel N.A. v. G.S., 156 Wis.2d 338 (Ct. App. 1990), the Court stated that the review of a trial courts exercise of contempt power is under the abuse of discretion standard.

In Oliveto v. Crawford Co. Circuit Court, 194 Wis.2d 419 (1995), in addressing a summary

contempt in the presence of the court, the Court stated that summary contempt may be used only if the contumacious act is committed in the actual presence of the court, the sanction must be imposed for purpose of preserving order in the court and it is imposed to protect the authority and dignity of the court and the sanction is imposed immediately after the contempt after allocution.

In Gower v. Circuit Court for Marinette Co., 154 Wis.2d 1 (1990), a summary contempt for actions in the presence of the court case, the Court held that it is to be used only under limited circumstances.

In Shepard v. Outagamie Co. Circuit Court, 189 Wis.2d 279 (Ct. App. 1994), the Court held that intent may be inferred from conduct in determining if an action is willful or intentional.

In State v. Pultz, 206 Wis.2d 112 (1996), the Court held that where the State in the exercise of its police power brings its power to bear on an individual through the use of civil contempt and liberty is threatened, the individual is entitled to counsel, and if indigent, appointment of counsel at public expense.

In Christensen v. Sullivan, 320 Wis.2d 76 (2009), the Court held that a contempt of court must be intentional and the trial court has no discretion to impose a remedial sanction against a party after their contempt of court had ceased. Remedial contempt is used to terminate a continuing contempt of court.

In Meyer v. Teasdale, 321 Wis.2d 647 (Ct. App. 2009), the Court held that a contemnor is entitled to an opportunity to request a hearing before being committed to jail for allegedly failing to comply with a purge condition.

These appellate cases tell us that the contempt powers of the court:

1) Are both inherent and statutory in nature.

2) Are to be used sparingly and only when deemed necessary.

3) Must be exercised to stop a continuing contempt or a contempt in the presence of the court.

4) When exercised must be such that the purge condition is within the reach of the contemnor.

5) Are to be used to promote and achieve Law and Order.

Contempt Law in Wisconsin - Part One - Statutory Law

By John DiMotto

Recently, the Republican leadership in the Wisconsin Legislature held the Democratic Senators in contempt for leaving the State and preventing the Senate from taking up the Budget Repair Bill as an appropriations bill. The sanction was to preclude them from voting in committee until the next time the Senate was to be in session. (The same day they imposed the sanction they withdrew it.) Yesterday, SCOTUS heard arguments in Turner v. Rogers as to whether a person facing contempt of court for not paying child support, and facing possible incarceration until payment is made as a purge, has a right to counsel under the due process clause of the 14th Amendment. Given these two recent "contempt" scenarios, I thought this would be a good time to begin a review the law of contempt of court in Wisconsin. This will be a two part review. In today's, blog I will look at Chapter 785 of the Wisconsin Statutes which addresses "Contempt of Court." In my next blog, I will look at how appellate courts have construed the statutory law of contempt.

785.01 sets forth what conduct constitutes contempt of court. First, the conduct must be intentional. Second, it must be:

1) Misconduct in the presence of the court which:

(a) interferes with a court proceeding, or

(b) interferes with the administration of justice, or

(c) impairs the respect due the court.

[This is usually addressed via a summary, punitive sanction, procedure under 785.03(2). See below]

2) Disobedience, resistance or obstruction of:

(a) the authority, or

(b) process, or

(c) order of a court

3) Engaging in certain prohibited action in a family law case under 767.117(1)

4) Refusal of a witness to:

(a) appear, or

(b) be sworn, or

(c) answer a question

5) Refusal to produce a:

(a) record, or

(b) document, or

(c) other object

[2 through 5 are usually addressed via nonsummary, remedial sanction, procedure under 785.03(1)(a) although they can also be subject to nonsummary, punitive sanction, procedure under 785.03(1)(b) or both! See below]

There are two types of Contempt Procedures:

1) Nonsummary:

(a) Remedial sanction -- 785.03(1)(a)

(b) Punitive sanction -- 785.03(1)(b)

A remedial sanction may be imposed for the purpose of terminating a continuing contempt of court. An example would be for nonpayment of child support.

A punitive sanction may be imposed to punish a past contempt of court for the purpose of upholding the authority of the court. An example would be where the court entered an order which was blatantly disregarded by a party and where it is brought to the attention of the local DA who considers it so egregious that he/she wants to obtain a criminal conviction and sentence to jail. No remedy is sought, only punishment.

Nonsummary - remedial is utilized when a person aggrieved by a contempt of court seeks a remedy for himself/herself. After notice and hearing a court may impose one of the remedial sanctions in 785.04(1). A remedial sanction must be purgeable since it is to remedy a wrong.

An example would be where the court finds that the failure to pay child support is so serious that it orders 30 days in jail but if the nonpayer makes a lump sum payment within a reasonable time frame the nonpayer can avoid the jail time.

Nonsummary - punitive is a criminal offense which must be brought by a district attorney, attorney general or special prosecutor. It is commenced by the filing of a criminal complaint and all of the provisions of Chapters 967 -973 apply. A punitive sanction does not have to be purgeable since it is to punish not to remedy. The nonsummary, punitive sanction, procedure could be brought on the same facts as the above nonsummary, remedial sanction, procedure. (However, the use of the nonsummary, punitive sanction, procedure by the DA is rarely used due to limited resources.)

2) Summary -- 785.03(2).

The summary procedure is utilized by a judge who may impose a punitive sanction upon a person who commits a contempt of court in the actual presence of the court. The punitive sanction must be imposed immediately after the contempt occurs and only for the purpose of preserving order in the court and protecting the authority and dignity of the court. The alleged condemner has the right of allocution before the sanction is imposed. An example of the summary procedure would be a situation where a lawyer would show disrespect for the court in open court.

Remedial sanctions under 785.04(1) that are available to the court include:

1) Payment of a sum of money sufficient to compensate a party for a loss or injury suffered by the party as the result of a contempt of court.

2) Imprisonment if the contempt of court is of a type included in 785.01(1)(b) - (d) only so long as the person is committing the contempt of court or 6 months whichever is the shorter period.

3) A forfeiture not to exceed $2000 for each day the contempt of court continues.

4) An order designed to ensure compliance with a prior order of the court.

5) A sanction other than the above sanctions here if the court expressly finds that those sanctions would be ineffectual to terminate a continuing contempt of court.

Punitive sanctions under 785.04(2)(a) [nonsummary procedure] include:

1) A fine of not more than $5000 for each separate contempt of court, or

2) Imprisonment in the county jail for not more than one year or both for each separate contempt of court, or both.

Punitive sanctions under 785.04(2)(b) include:

1) A fine of not more than $500 for each separate contempt of court, or

2) Imprisonment in the county jail for not more than 30 days for each separate contempt of court, or both.

It must also be noted that a punitive sanction may be imposed for past conduct which was a contempt of court even though similar present conduct is a continuing contempt of court. In other words a party may seek a remedial sanction for a continuing contempt and the State may bring a criminal contempt for past conduct which is still continuing.

While contempt proceedings can be brought in a vast variety of scenarios, the use of contempt is the exception not the rule. Courts attempt to resolve misconduct and disobedience via the exercise of reason as opposed to the exercise of power.

In the next blog, I will examine the case law regarding contempt and how the procedures are actually used.

The Law of Temporary Restraining Orders and Injunctions in Wisconsin

By John DiMotto

With the passage of the recent Budget Repair Bill and the threats of legal action to challenge the constitutionality of the legislation, I thought it would be timely to review the law in Wisconsin with respect to restraining orders and injunctions.

Chapter 813 of the Wisconsin Statutes addresses the issue of when and under what circumstances restraining orders and injunctions may be sought. The purpose of a restraining order or injunction is to prevent a person from engaging in conduct or from continuing to engage in conduct in violation of the rights of another person. The restraining order or injunction can address:

1) The constitutionality of a statute.

2) General conduct (i.e. stop a defendant from divesting himself of property which divestiture is being contemplated in order to avoid execution on a judgment that a plaintiff has against the defendant).

3) Specific conduct (i.e. domestic abuse, child abuse, individual at risk or harassment injunctions). A restraining order and injunction can also be sought when a party seeks to challenge the constitutionality of legislation.

Section 813.02 specifically addresses the conditions precedent to obtaining a temporary restraining order or injunction. 813.02(1)(a) sets forth:

"When it appears from a party's pleading that the party is entitled to judgment and any part thereof consists in restraining some act, the commission or continuance of which during the litigation would injure the party, or when during the litigation it shall appear that a party is doing or threatens or is about to do, or is procuring or suffering some act to be done in violation of the rights of another party and tending to render the judgment ineffectual, a temporary injunction may be granted to restrain such act."

Does this mean that a restraining order or injunction is the norm or is it the exception? Case law gives us guidance.

1) An injunction is a prohibitive, equitable remedy issued or granted by a court at suit of a plaintiff directed toward a defendant forbidding a defendant from doing some act which the defendant is threatening or attempting to commit or restraining a defendant in continuance thereof, such act being unjust and inequitable, injurious to the plaintiff and not such as can be redressed by an action at law. State v. O'Dell, 192 Wis.2d 333 (1995).

2) The granting or denial of injunctive relief rests within the trial court's discretion. Hall v. Liebovich Living Trust, 300 Wis.2d 725 (Ct. App. 2007).

3) Injunctions do not issue for inconsequential or trivial causes but only to restrain an act that is clearly contrary to equity and good conscience. Milwaukee Electric Railway and Light Co., 205 Wis. 126 (1931).

4) Injunctions are not to be issued lightly. Bartell Broadcasters v. Milwaukee Broadcasting Co., 13 Wis.2d 165 (1961).

5) An equitable remedy such as a prospective injunction must of necessity, place heavy reliance on the facts of the particular controversy. Prince v. Bryant, 87 Wis.2d 662 (1979).

6) To obtain injunctive relief, a litigant generally must show that the injunction is necessary to prevent irreparable harm. The purpose of an injunction is to prevent future violations. Past injuries are in themselves no ground for an injunction and only granted when necessary to restrain irreparable mischief, suppress oppressive and indeterminable litigation or prevent a multiplicity of suits. There must be no adequate legal remedy available. (i.e. The injury cannot be compensated by damages.) Kohlbeck v. Reliance Construction Co. Inc., 256 Wis.2d 235 (Ct. App. 2002).

7) Factors to be considered for the issuance of a temporary injunction are identified in 813.02(1). The movant must show: Reasonable probability of success on the merits; an inadequate remedy at law and irreparable harm. Spheeris Sporting Goods v. Spheeris on Capitol, 157 Wis.2d 298 (Ct. App. 1990).

8) Before an injunction will be issued, the cause must be substantial. Temporary injunctions are to be issued only when necessary to preserve the status quo. At the temporary injunction stage, the requirement of irreparable injury is met by showing that without it to preserve the status quo pendente lite, the permanent injunction sought would be rendered futile. School District of Slinger v. WIAA, 210 Wis.2d 366 (Ct. App. 1997).

9) An injunction may be no more broad than is equitably necessary. City of Milwaukee v. Burnette, 248 Wis.2d 820 (Ct. App. 2001).

10) When a public entity seeks injunctive relief to enforce a law (i.e. zoning ordinance) it does not have to show irreparable harm. Forest Co. v. Goode, 219 Wis.2d 655 (1998).

11) Injunctive relief should be tailored to the necessity of the particular case. Hoffman v. Wisconsin Electric Power Co., 262 Wis.2d 264 (2003).

12) To warrant an injunction, the injury must be real, serious, material and permanent or potentially permanent. the right to an injunction must be clear and reasons for granting it strong and weighty. Kocken v. Wisconsin Council 40 AFSCME, 301 Wis.2d 266 (2007).

13) Injunctions must be specific as to the prohibited acts and conduct in order for the person being enjoined to know what conduct must be avoided. Welytok v. Ziolkowski, 312 Wis.2d 435 (Ct. App. 2002).

In the context of challenging legislation, we know that statutes are presumed constitutional and that the party challenging constitutionality must prove unconstitutionality beyond a reasonable doubt. In the context of seeking an injunction to prevent the implementation/enforcement of a statute on the grounds that the statute is unconstitutional, the moving party must show:

1) Reasonable probability of success on the merits.

2) Inadequate remedy at law.

3) Irreparable harm.

It will be interesting to see what arguments are made for and against provisions in the Budget Repair Bill. It will be even more interesting to learn not only the ultimate decision made by the trial court and appellate courts but the legal rationale for the ultimate decision.

Determining the Constitutionality of Laws

By John DiMotto

As I am sure everyone knows, the budget problems of State of Wisconsin have been been the focus of local, national and international news for the past three weeks. Today, it was reported that the Milwaukee City Attorney has authored an opinion that provisions of the Governor's Budget Repair Bill are an unconstitutional infringement on the city's "home rule" authority over its pension plan, violates employees' contractual rights and violates workers' due process rights. There will undoubtedly be very lively and heated debate over whether he is correct.

Today, I want to examine the Rules of Statutory Construction that are considered by the courts when a constitutional challenge to legislation is raised.

When a party claims that a law is unconstitutional, that party is claiming that the law is at odds with a provision in either the US or the Wisconsin Constitution or both and, as such, the law cannot stand or be enforced. Black's Law Dictionary, 5th Edition defines "Constitution" as:

"The organic and fundamental law of a nation or a state...establishing the character and conception of its government, laying the basic principles to which its internal life is to be conformed, organizing the government, and regulating, distributing, and limiting the functions of its different departments, and prescribing the extent and manner of the exercise of sovereign powers. A charter of government deriving its whole authority from the governed. The written instrument agreed upon by the people ... of a particular state, as the absolute rule of action and decision for all departments (ie. branches) and officers of the government in respect to all the points covered by it, which must control until is shall be changed by the authority which established it (ie. by amendment), and in opposition to which any act or ordinance of any such department or officer is null and void."

It is a fundamental bedrock of our government, by virtue of the "separation of powers," that:

1) The Legislature enacts the law.

2) The Executive enforces the law.

3) The Judiciary interprets the law.

Thus, when a law is challenged as being unconstitutional -- an affront to the constitution -- it is the judiciary which makes the final decision.

A party has standing to challenge a statute's constitutionality if that party has a sufficient interest in the outcome of a justiciable controversy to obtain a judicial resolution of that controversy. Standing involves a two step analysis. The court must determine whether the plaintiff has suffered threatened or actual injury and the interest asserted must be recognized by law. see State v. Oak Creek, 232 Wis.2d 612 (2000).

The Rules of Statutory Construction as they pertain to constitutionality provide that:

1) Statutes enjoy a presumption of constitutionality, and,

2) All doubts are resolved in favor of constitutionality.

3) Therefore, a party challenging a statute's constitutionality bears a heavy burden and must demonstrate the statute is unconstitutional beyond a reasonable doubt.

see Ferdon v. Wisconsin Patients Compensation Fund, 284 Wis.2d 573 (2005).

The only exception to the challenger bearing the burden of proof is when a statute infringes on a First Amendment Right. In this instance, the State has the burden of proving constitutionality beyond a reasonable doubt. see State v. Trochinski, 253 Wis.2d 38 (2002).

A constitutional challenge to a law can be:

1) A "facial" challenge; that is, on its face, the law is unconstitutional in every context, or

2) An "as applied" challenge; that is, the law is unconstitutional as to the challenger alone.

see State v. Smith, 323 Wis.2d 377 (2010).

A constitutional challenge to a law can be based on:

1) Overbreadth -- a statute is overbroad when its language is so sweeping that its sanctions may be applied to constitutionally protected conduct which the State is not permitted to regulate. see County of Kenosha v. C & S Management Inc., 223 Wis.2d 373 (1999). In order to assert a claim of overbreadth, it is not necessary that a person's own conduct be constitutionally protected. The overbreadth analysis reflects the conclusion that possible harm to society from allowing unprotected speech to go unpunished is outweighed by the possibility that protected speech will be muted. Thus, if a statute included in its prohibition conduct which is constitutionally protected, it is void even if the person's own conduct is unprotected and may be prohibited by a more narrowly drawn law. see State v. Johnson, 108 Wis.2d 703 (Ct. App. 1982). The danger in overbroad statutes is that they provide practically unbridled administrative and prosecutorial discretion that may result in selected prosecution based on certain views deem objectionable law enforcement. However, overbreadth must be real and substantial. Marginal infringement or fanciful hypotheticals of inhibition which are unlikely to occur will not render a statute unconstitutional on overbreadth grounds. see State v. Stevenson, 236 Wis.2d 86 (2000).

2) Vagueness -- a statute is vague if it fails to afford proper notice of the conduct it seeks to proscribe. The test for vagueness is whether a statute is so obscure that men of ordinary intelligence must guess as to its meaning and differ as to its applicability. To withstand a vagueness challenge it must be sufficiently definite so that potential offenders are able to discern boundaries of proscribed conduct. see Johnson, supra. Procedural due process is at issue. see County of Kenosha, supra.

3) Procedural Due Process -- requires that a person who has life, liberty or property at stake must be afforded the opportunity to be heard at a meaningful time and in a meaningful manner. Failure of a statute to so provide renders a statute unconstitutional. see Estate of Makos v. Masons Health Care Fund, 211 Wis.2d 41 (1997).

4) Substantive Due Process -- the Fourteenth Amendment due process clause is a guarantee of "more than a fair process." It contains a substantive sphere as well barring certain government actions regardless of the fairness of the procedures used to implement them. The threshold inquiry when analyzing an alleged violation of substantive due process is whether the challenger has established a deprivation of a liberty or property interest protected by the constitution. see Dowhower v. West Bend Mutual Ins. Co., 236 Wis.2d 113 (2000).

5) Equal Protection -- a statute which treats members of similarly situated classes differently violates the Fourteenth Amendment. If the challenge implicates a fundamental right or suspect classification the statute is subject to a strict scrutiny test. It must be shown by the State that the regulation is necessary to serve a compelling state interest and that it is narrowly drawn. see State v. Baron, 318 Wis.2d 60 (2009). If the challenge does not implicate a fundamental right or suspect classification then the statute is subject to a rational basis test. It must be shown buy the challenger that the regulation is not rational. All doubts are resolved in favor of constitutionality. see Nankin v. Village of Shorewood, 245 Wis.2d 86 (2001).

Whenever there is a challenge to the constitutionality of a state statute, notice must be given to the Wisconsin Attorney General under 806.04(11) so he/she can decide whether the State wishes to be heard above and beyond the parties to the lawsuit.

If the Governor's Budge Repair Bill does become law, the constitutionality of some of the provisions of the bill (ie. home rule, worker contractual rights, worker due process) may be challenged in the courts. Furthermore, the challenger may also seek an injunction to prevent the challenged provisions from taking affect until the constitutionality of those provisions is ultimately decided. Any challenge may well result in a long and winding road.

Summary Judgment Procedure in Wisconsin

By John DiMotto

When a person files a civil lawsuit to seek redress from what he/she perceives to be an injustice, that person is usually entitled to a trial on the merits. I say "usually" because there is a circumstance where a person is denied the right to a trial. That "circumstance" is when there is no genuine issue of material fact a person is NOT entitled to a trial. Whether this "circumstance" is present is determined by Summary Judgment.

Chapter 802 of the Wisconsin Statutes addresses "Pleadings, Motions and Pretrial Practice." One of the motions that Chapter 802 addresses is the Motion for Summary Judgment.

802.08(1) sets forth that a party:

"...may move for summary judgment on any claim, counterclaim, cross claim or 3rd party claim which is asserted by or against the party".

802.08(2) sets forth that:

"The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue to the amount of damages."

802.08(3) sets forth that:

"Supporting and opposing affidavits shall be made on personal knowledge and shall set forth such evidentiary facts as would be admissible in evidence."

802.08(5) sets forth that:

"Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this section is presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur, including reasonable attorney fees."

Finally, 802.08(6) sets forth that:

"If it shall appear to the court that the party against whom a motion for summary judgment is asserted is entitled to a summary judgment, the summary judgment may be awarded to such party even though the party has not moved therefor."

In order to ensure that summary judgment is not abused, appellate courts have set forth principles to be embraced by the trial court.

Summary judgment is only available when "there is nothing to try." When brought by a defendant, it is akin to a motion for dismissal at the end of the plaintiff's case if there is not credible evidence in support of the elements the plaintiff must prove. see Transportation Ins. Co. v. Hunzinger, 179 Wis.2d 281 (Ct. App. 1993)

The party with the burden of proof at trial in connection with a claim has the burden to show that there is a genuine issue of material fact that requires a trial on that claim. This burden can be met by reasonable inferences drawn from circumstantial evidence. Submissions are to be examined in the light most favorable to the nonmoving party. see Tomson v. American Family Ins. Co., 321 Wis.2d 492 (Ct. App. 2009).

An issue of fact is genuine if a reasonable jury could find for the nonmoving part. A material fact is such a fact that would influence the outcome of the controversy. see Marine Bank v. Taz's Trucking Inc., 281 Wis.2d 275 (2005).

A case founded only on hunches and speculation rather than evidence will not justify a trial. see Dyer v. Blackhawk Leather, LLC, 313 Wis.2d 863 (Ct. App. 2008).

Courts do not make findings at the summary judgment stage. Summary judgment methodology prohibits the trial court from making findings of fact. The trial court does not weigh the evidence or determine credibility of evidence. see Continental Casualty v. Milwaukee Metropolitan Sewerage District, 175 Wis.2d 527 (Ct. App. 1993).

While summary judgment is considered a drastic remedy which should not be granted when material facts are in dispute, without a doubt a trial court can and should grant summary judgment in those instances where the controlling material facts are not in dispute and the application of the law to the facts is not doubtful. see Town Bank v. City Real Estate Development LLC, ___Wis.2d___, 2010 WI 134.

Summary judgment should not be granted unless material facts are not in dispute, no competing inferences can arise and the law that resolves the issue is clear. see Tele-Port v. Ameritech Mobile Communications, 248 Wis.2d 846 (Ct. App. 2001).

When a motion for summary judgment is brought, the adverse party may not rest on mere allegations or denial in the pleadings but must set forth evidence. The opponent to summary judgment does not have the luxury of resting upon allegations or denials but must advance specific facts showing the presence of a genuine issue of material fact. see Schreiner v. Wieser Concrete Products, Inc. 294 Wis.2d 832 (Ct. App. 2006).

Any reasonable doubt as to the existence of disputed material fact is resolved against the moving party. see In rel Paternity of Taylor R. T., 199 Wis.2d 500 (Ct. App. 1996).

A question of law is suitable for summary judgment. see Public Service Corporation v. Heritage Mutual Ins. Co., 200 Wis.2d 821 (Ct. App. 1996).

Summary judgment can resolve legal issues and contract construction. see Meyer v. City of Amery, 185 Wis.2d 537 (Ct. App. 1994).

As you can see from the the declarations of appellate courts, if there is a dispute of material fact or if a contract is ambiguous, a trial court should never grant summary judgment. If there is a question of credibility, summary judgment cannot be granted. If there is evidence "to be weighed," summary judgment cannot be granted. Summary judgment is not a substitute for a trial but a mechanism to resolve a lawsuit where there is not dispute of fact or law.

Daubert in Wisconsin -- Seismic or Subtle?

By John DiMotto

Over the past 16 days since, since the Daubert Rule took effect in Wisconsin, I have had numerous conversations with my colleagues about whether this evidentiary rule change will be seismic or subtle. Based on those conversations and my review of statutes and case law, I have come to the "preliminary opinion/conclusion" that it will be subtle because of the considerable overlap between concepts of relevancy and reliability. Let me explain.

Black's Law Dictionary, 5th Edition, defines relevancy as follows:

"Applicability to the issue joined. That quality of evidence which renders it properly applicable in determining the truth and falsity of the matters in issue between the parties to a suit. Two facts are said to be relevant to each other when so related that according to the common course of events, one either taken by itself or in connection with other facts, proves or renders probable the past, present, or future existence or non-existence of the other."

"Relevancy is that which conduces to the proof of a pertinent hypothesis; a pertinent hypothesis being one which, if sustained, would logically influence the issue."

"Relevancy of evidence refers to its probative value in relation to the purpose for which it is offered. ... Term describes the logical relationship between a proffered item of evidence and a proposition that is material or provable in a given case."

Black's Law Dictionary, 5th Edition, defines reliable as follows:

"Trustworthy, worthy of confidence."

I believe that these two definitions must be read together and, if done, the reader will arrive at the inescapable conclusion that to be "relevant" the evidence in question must, in some measure, be "reliable." How can evidence be "probative", that is, "have the effect of proof" or the ability to "prove a fact or hypothesis" unless it has reliability?

I believe that an examination of Wisconsin statutory and case law reinforces my opinion/conclusion/proposition that to be relevant, evidence must have reliability.

The Wisconsin Rules of Evidence address "relevant evidence" in 904.01 The definition is in accord with the definition of relevancy in Black's Law Dictionary. It sets forth:

"'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."

If evidence is to have "any" tendency to make something "more" or "less" probable, doesn't the evidence to have some indicia of reliability?

In State v. Payano, 320 Wis.2d 348 (2009), the Wisconsin Supreme Court reiterated that relevance has two components:

1) The evidence must go to a consequential proposition and,

2) The evidence must make the consequential proposition more probable or less probable.

If the evidence can make the consequential proposition more or less probable, doesn't it stand to reason that it must be reliable?

In State v. Ross, 260 Wis.2d 291 (Ct. App. 2003), the Court of Appeals, in addressing the concept of relevancy stated:

"In determining a dispute concerning the relevancy of proffered evidence, the question to be resolved is whether there is a logical or rational connection between the fact which is sought to be proved and a matter of fact which has been made an issue in the case."

In order for the evidence to make the logical or rational connection, doesn't it stand to reason that it must be reliable?

In Winnebago County v. Harold W., 215 Wis.2d 521 (Ct. App. 1997), the Court of Appeals, in addressing relevancy stated:

"Relevancy is an elastic concept which must be assessed in light of the nature of the proceedings."

Doesn't this definition imply the need for the evidence to have some reliability? And, if it does, then shouldn't it be admitted and let the trier of fact give it such weight as it deems the evidence is entitled to receive?

Finally, I believe that a re-reading of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), supports my opinion/conclusion/proposition.

1) SCOTUS stepped back from the rigid "general acceptance" rule of Frye.

a) The drafting history of Rule 702 makes no mention of Frye and a rigid "general acceptance" requirement would be at odds with the "liberal thrust" of the Federal Rules and their "general approach of relaxing the tradition barriers to 'opinion' testimony.

2) SCOTUS held that the trial judge must decide whether the expert is purporting to testify as to scientific knowledge that will assist the trier of fact to understand or determine a fact in issue and that this entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether it can properly be applied to the facts in issue.

However, and most significantly,

3) SCOTUS made it clear that:

a) This is a flexible inquiry;

b) Rule 702 will not create a "free for all"; and,

c) [1] Vigorous cross examination, [2] presentation of contrary evidence and [3] careful instructions on burden of proof are traditional and appropriate means of attacking shaky but admissible evidence.

I believe that SCOTUS intended to make the introduction of expert testimony easier.

I believe that the thrust of Daubert is that SCOTUS intended the degree of reliability necessary for the introduction of expert testimony to be low.

I believe that while the Wisconsin Walstad Relevancy Rule is more liberal than the Daubert Reliability Rule, that the differences are not very great and that Daubert will not dramatically change the landscape when it comes to the introduction of expert testimony.

In terms of the necessity for and extent of 901.04 (1) hearings, I believe that trial judges need not "re-invent the wheel" when it comes to the qualifications of the expert and the expert principle at issue. If the expert and/or the principle have previously been litigated, I believe that the trial court can rely on "past precedent." For example, I do not think any judge need conduct an extensive hearing as to whether DNA evidence will be admissible. I believe that the reliability of DNA evidence has been decided. With respect to other areas there may be a need for 901.04(1) hearings. However, the trial judge must be mindful that, based on the strong language in Daubert, the threshold for admissibility is a low one. Trial judges must always remember that, for the most part, "weight of evidence" is left to the sound decision of the trier of fact.

Seismic or subtle?

I say subtle.