On April 2, incumbent Justice Patience Roggensack will face Marquette Law professor Ed Fallone for her chance to win another 10-year term on the Wisconsin Supreme Court. According to unofficial results from the Associated Press, with 99 percent of precincts reporting, Roggensack received 64 percent of the primary vote and Fallone, 30 percent, to lemon law attorney Vince Megna’s 6 percent.

Wisconsin Supreme Court Justice Patience Roggensack is up for reelection for a 10-year term on the court, and she is being challenged by Wisconsin’s “King of Lemon Laws,” Vince Megna, and Marquette University Law School professor Edward Fallone. WisconsinEye recently sat down with each of the candidates for one on one interviews that touched on judicial philosophy, the role of court, and issues that may come before the court.

The Wisconsin Civil Justice Council’s 2013 Guide to the Wisconsin Supreme Court and Judicial Evaluation, which highlights the most important business decisions issued by the court over the past two years, is now available.

According to the report, Justice Patience Roggensack led the court the past two terms with a 74 percent rating in cases favoring businesses, followed by Justices David Prosser, Jr. (70 percent), Michael Gableman (70 percent), Annette Ziegler (68 percent), Patrick Crooks (55 percent), Ann Walsh Bradley (27 percent) and Chief Justice Shirley Abrahamson (17 percent).

The public trust doctrine has been in the news in Wisconsin recently because of a challenge to a proposed development in Milwaukee; however, interest in this obscure doctrine is not new. Two recent law review articles explore how the doctrine is being used in other states.

A Dane County Circuit Court judge has narrowly struck down a portion of 2011 Wisconsin Act 21, the regulatory reform bill passed during the 2011-12 Legislative Session and signed into law by Gov. Scott Walker.

The U.S. Court of Appeals for the Ninth Circuit has dismissed a federal common law claim of public nuisance for global warming by greenhouse gases, ruling the common law was displaced by the comprehensive federal regulatory scheme of the Clean Air Act. Combined with the U.S. Supreme Court’s ruling in American Electric Power v. Connecticut, this case all but eliminates the availability of public nuisance climate change claims.

A recent article in Michael Best & Friedrich’s Agribusiness, Food and Beverage Newsletter discusses the impact of the Wisconsin Supreme Court’s Lake Beulah decision.

Landmark case tests DNR’s Public Trust authority: Lakeland Times, September 14, 2012.

Lake Koshkonong ruling could set precedent: Janesville Gazette, September 6, 2012.

Lake Koshkonong level before Supreme Court: Jefferson County Daily Union, September 6, 2012.

Contact: Andrew Cook

Status: Wisconsin Supreme Court oral arguments held September 5, 2012.

Summary: On September 5, 2012, the Wisconsin Supreme Court heard oral arguments in a case that will determine whether the Wisconsin Department of Natural Resources (DNR) is required to consider evidence of a navigable water level’s effect on property values when deciding whether to grant a petition to raise or lower water levels.

The Wisconsin Supreme Court today is hearing oral arguments in a case (Rock-Koshkonong Lake District v. DNR) that could have a significant impact on property owners. The issue is whether the Department of Natural Resources has the authority to regulate private, non-navigable wetlands under the public trust doctrine.

Administrative agencies continuously promulgate new rules and often do so quickly. Tracking the various proposed rules can be time-intensive and complicated. The Foundation’s Regulatory Calendar includes the dates of important steps in the rulemaking process for various rules we are following at the state and federal level.

An environmental group is trying to stop development of a high-rise apartment building in Milwaukee because the group alleges the site is located on former Lake Michigan lakebed, and therefore subject to the Wisconsin Constitution’s public trust doctrine.

The Wisconsin Supreme Court has scheduled oral arguments in the Rock-Koshkonong Lake District, et al. v. Department of Natural Resources, et al. case for September 5, 2012 at 1:30PM. The Great Lakes Legal Foundation filed an amicus curiae (friend of the court) brief on behalf of the Wisconsin Manufacturers and Commerce and the Midwest Food Processors Association.

The Great Lakes Legal Foundation has filed a friend of the court brief in support of the petitioners in the Rock-Koshkonong Lake Dist. et al. v. DNR (2008AP1523) case on behalf of Wisconsin Manufacturers & Commerce and the Midwest Food Processors Association.

The Spring 2012 edition of the Federalist Society’s State Court Docket Watch features an article authored by GLLF Director of Legal Services Andrew Cook. The article, Wisconsin Supreme Court Rules Plaintiffs Entitled to Receive “Phantom Damages,” provides an in-depth analysis of the high court’s unanimous decision in Orlowski v. State Farm Mutual Auto. Ins. Co.

Part I of the article begins with a discussion of previous Wisconsin Supreme Court decisions applying the collateral source rule in personal injury cases where the plaintiff’s medical expenses were written off by the medical provider. Part II concludes by discussing the Wisconsin Supreme Court’s latest decision in Orlowski, which extends the collateral source rule to underinsured motorist claims.
 

The Wisconsin Supreme Court has decided to hear a case that will determine whether the Wisconsin Department of Natural Resources is required, when making water level decisions on impounded lakes, to consider evidence of the water level’s effect on property values.

By Andrew Cook and Pat Osborne

The Wisconsin Supreme Court has issued a decision that is likely to negatively affect not just the aggregate industry, but other related industries. The Court’s decision broadens Wisconsin towns’ authority to regulate certain types of land uses under the guise of its police powers, rather than through a zoning ordinance, which requires county board approval.

InAnderson v. Department of Natural Resources, 2001 WI 19 (March 23, 2011), the Wisconsin Supreme Court relied on concepts of federalism to decide the DNR’s authority to overrule the EPA’s application of the federal Clean Water Act.

Curt Andersen, John Hermanson, Rebecca Leighton Katers, Christine Fossen-Rades, Thomas Sydow, and James L. Baldock (collectively, the petitioners), through legal counsel at Midwest Environmental Advocates, petitioned the DNR for review of a Wisconsin Pollutant Discharge Elimination System (WPDES) permit that the DNR reissued to Fort James Broadway Mill in Green Bay.

The Wisconsin Supreme Court this month heard oral arguments in a case that could have broad implications determining the amount of regulatory authority state agencies have when it comes to issuing permits. The Great Lakes Legal Foundation (GLLF) filed an amicus brief requesting the Court accept the case.
In Lake Beulah Management District v. Village of East Troy, the underlying issue is whether the Department of Natural Resources (DNR) has authority to regulate high capacity wells beyond the specific provisions set forth in the statutes by the Legislature.

The primary election for a seat on the Wisconsin Supreme Court will be held on Tuesday, February 15. Incumbent Wisconsin Supreme Court Justice David T. Prosser, Jr. is being challenged by three candidates: Joanne Kloppenburg, an assistant attorney general; Marla Stephens, director of the state public defender's appellate division, and Joel Winnig, a Madison attorney.

The two candidates that receive the most votes in the February primary election will advance to the general election on April 5.

The race is considered to be very important by many groups. Many of most important recent decisions issued by the Court have been decided 4-3, or 5-2 in some instances, with Justice Prosser in the majority. If Justice Prosser were unseated, his successor could considerably alter the makeup of the court.

For more information about the race and the Wisconsin Supreme Court, please see the Wisconsin Civil Justice Council's 2011 Guide to the Wisconsin Supreme Court.