United States: Wisconsin Supreme Court Update: July & August 2023

The Wisconsin Supreme Court finished up its 2023–24 term in June, issuing a slew of new decisions and granting review in one new case for next term. In this update, we take a closer look at the civil cases the court decided to round out the term.

Cases Decided

Allsop Venture Partners III v. Murphy Desmond SC, No. 2020AP806

Evidence

Decision Filed: June 2, 2023

Public Citation: 2023 WI 43

Practice pointer: Take caution when entering a settlement agreement that involves a Pierringer release. The settlement might be admissible. The dispute in this case flowed from a complex commercial transaction where the plaintiff incurred significant tax penalties due to faulty tax advice provided by several defendants. The plaintiffs settled with some of the defendants via Pierringer releases, leaving only legal malpractice claims against Murphy Desmond. At trial, the circuit court admitted evidence that other firms were formerly named as defendants and had settled with the plaintiffs. In a 4-3 decision by Justice Hagedorn, the court upheld the circuit court's admission of settlement evidence under Wis. Stat. § 904.08. That statute says that settlement evidence "is not admissible to prove liability for or invalidity of the claim or its amount," but it may be offered "for another purpose, such as proving bias or prejudice of a witness." Relying on a case from 2000, the court held that the settlement evidence was admissible here to show that the litigation "posture of a settling party was significantly different as a result of the settlement." Here, the circuit court reasonably concluded that the settlement prompted the plaintiff to change its litigation posture, so it was not error to admit the evidence. Chief Justice Ziegler authored a dissent, joined by Justices Roggensack and Rebecca Grassl Bradley, arguing that admission of settlement evidence to prove a change in litigation posture would swallow the rule against admission of settlement evidence.

Miller v. Zoning Board of Appeals of the Village of Lyndon Station, No. 2021AP1764

Zoning

Decision Filed: June 6, 2023

Public Citation: 2023 WI 46

This case presented the question of whether a mom, who happened to be on the village board, could vote on whether to rezone a parcel of property owned by her daughter. A village resident brought a due process challenge to the village's decision to rezone a parcel owned by a daughter of the village board member to allow commercial development on the property. Naturally, the property-owner's mom cast the deciding vote. In a unanimous decision by Justice Dallet, the court held that there is no due process right to an impartial decision-maker when a legislative body like the village board modifies a generally applicable law like a zoning ordinance. The due process challenge therefore failed.

5 Walworth, LLC v. Engerman Contracting, Inc., Nos. 2019AP1085 & 2019AP1086

Insurance

Decision Filed: June 20, 2023

Public Citation: 2023 WI 51

This is a CGL coverage dispute regarding a defective in-ground pool complex. The plaintiff brought claims against the contractors who built the complex, a materials supplier, and several insurers. On summary judgment, all three insurers argued they had no duty to defend the contractors, advancing several theories. The most significant of those theories was that the general contractor's insurers had no duty to defend because, under Wisconsin Pharmacal Co., LLC v. Nebraska Cultures of California, Inc., 2016 WI 14, 367 Wis. 2d 221, 876 N.W.2d 72, there had been no "property damage" caused by an occurrence. In Pharmacal, the court had held that the "property damage" requirement in a CGL policy is satisfied only if there is damage to "other property" besides the insured's own product. In a decision by Justice Hagedorn, the court overruled Pharmacal, holding that the plain language of the CGL policy's initial grant of coverage does not require that there be damage to "other property" to trigger coverage. In light of its decision to overrule Pharmacal, the court held summary judgment was not warranted for the general contractor's insurer because some damage to property had occurred. The opinion expressly declined to consider whether any of the policy exclusions, such as the business risk exclusion, might still exclude coverage where damage is limited only to the insured's own product. The court also considered and rejected arguments under the "known loss" and "your product" exclusions, holding both presented disputed issues of fact.

Greenwald Family Limited Partnership v. Village of Mukwonago, No. 2021AP69-FT

Taxation & Service

Decision Filed: June 21, 2023

Public Citation: 2023 WI 53

Wisconsin Stat. § 66.0703(12)(a) provides that a party wishing to obtain judicial review of a special assessment "shall serve a written notice of appeal upon the clerk of the city, town or village." But in this case, the property owner served its notice of appeal on the village attorney with the expressed understanding that doing so was sufficient to accomplish service on the village clerk. In a 4-3 decision authored by Justice Ann Walsh Bradley, the court upheld the circuit court's dismissal for lack of service, explaining that § 66.0703(12)(a)'s directive to serve the clerk is unambiguous and not controverted by other statutes. Chief Justice Ziegler authored a concurrence, joined by Justices Roggensack and Rebecca Grassl Bradley, arguing that service on the village attorney is sufficient, particularly in light of Wis. Stat. § 801.11, which governs service on municipalities. Greenwald Family Limited Partnership has since filed a motion for reconsideration.

Wisconsin Property Taxpayers, Inc. v. Town of Buchanan, No. 2022AP1233

Taxation

Decision Filed: June 29, 2023

Public Citation: 2023 WI 58

In 2019, the Town of Buchanan employed a creative mechanism to increase revenue to pay for road construction. Relying on Wis. Stat. § 66.0827, the town established a "transportation utility district" and began charging a "transportation utility fee" on town properties. The size of the fee varied depending on the vehicle traffic associated with the property. Wisconsin Property Taxpayers challenged the legality of the transportation utility fee, arguing it violated the town's property tax levy limit. In a unanimous decision authored by Justice Rebecca Grassl Bradley, the court agreed, holding that the transportation utility fee was a property tax, and that the town's property taxes therefore exceeded its statutory levy limit. Justice Rebecca Grassl Bradley also authored a separate concurrence in which she argued the fee violates the Wisconsin Constitution's Uniformity Clause because it is not applied on an ad valorem basis. Justice Roggensack joined the concurrence.

Sanders v. Wisconsin Claims Board, No. 2021AP373

Administrative Law

Decision Filed: June 30, 2023

Public Citation: 2023 WI 60

By statute, the Wisconsin Claims Board may award wrongfully incarcerated individuals up to $25,000 to compensate them for their wrongful incarceration. But that statute, Wis. Stat. § 775.05, goes on to say, "If the claims board finds that the amount it is able to award is not adequate compensation it shall submit a report specifying an amount which it considers adequate" to the legislature. In this case, Derrick Sanders was wrongfully incarcerated for 26 years. The Claims Board awarded him $25,000 but, by all appearances, did not decide one way or the other whether to recommend that the legislature appropriate a greater award for him. In a fractured 3-1-3 decision, the court held that the Claims Board did not act improperly. Justice Rebecca Grassl Bradley authored a lead opinion, in which she explained that although the statute requires a report to the legislature if the Claims Board finds the amount it may award is inadequate, there is no requirement in the statute that the Claims Board make a determination of adequacy one way or the other. Because the obligation to submit a report was triggered only "if" the Board determined it could not provide sufficient compensation, its non-determination did not trigger the report requirement. The lead opinion also concluded the "finding" described in § 775.05 is not a reviewable "finding" as that term is used in other administrative review settings. Justice Hagedorn supplied the fourth vote for the majority view but did not join the lead opinion. Instead, he authored a solo concurrence expressing reservations about discussing issues not briefed by the parties. Finally, Justice Karofsky authored a dissent, joined by Justices Ann Walsh Bradley and Dallet. The dissent argued that the statute's use of mandatory language ("shall submit a report") indicated that the Claims Board had a duty to decide whether $25,000 was adequate compensation, triggering the report requirement, and then to explain its reasoning.

Up for Review

The court has no oral arguments scheduled for the remainder of the 2022–23 term. Click here to see the oral argument calendar for September 2023, the first month of arguments in the 2023–24 term.

New to the Docket

Andrade v. City of Milwaukee Board of Fire and Police Commissioners, No. 2020AP333

Due Process

Petition for Review Granted: June 22, 2023

The court granted review to analyze whether a Milwaukee police officer was deprived due process due to the chief of police terminating the officer without providing an explanation. The officer's petition for review made arguments under the Due Process Clause and Wis. Stat. § 62.50(13).