Will This Term of Wisconsin’s Supreme Court Be the Last for Agency Deference in Wisconsin?

Justice Neil Gorsuch’s confirmation process earlier this year brought attention to the issue of agency deference, given a concurring opinion that he had written in Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149 (10th Cir. 2016). That was an immigration appeal where he argued that Chevron ought to be revisited because it “permit[s] executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.” Those who regularly watch the Supreme Court’s docket are waiting with bated breath to see if Justice Gorsuch can convince his colleagues that the issue merits the Court’s review.

But Wisconsin’s supreme court might beat Justice Gorsuch to the punch. In April, in an order granting a petition for review in Tetra Tech EC, Inc. v. Wis. Dep’t of Revenue, No. 2015AP2019 (Wis. Apr. 24, 2017), an appeal from the Wisconsin Tax Commission, the court asked the parties to brief a similar issue:

IT IS FURTHER ORDERED that in addition to the issue identified in the petition for review, the parties are directed to brief an additional issue: Does the practice of deferring to agency interpretations of statutes comport with Article VII, Section 2 of the Wisconsin Constitution, which vests the judicial power in the unified court system?

Tetra Tech concerned the meaning of “processing” in Wisconsin’s sales-and-use-tax statute. The court of appeals had applied “great weight deference” to the commission’s interpretation of the statute.

When the supreme court issued its order in Tetra Tech, only 16 days after Justice Gorsuch took the bench, we suspected that this was more than mere coincidence.

Continue reading this entry

“You Can’t Beat Something with Nothing”: 7th Cir. Explains the Importance of Disclosing Experts

Some cases present issues that are difficult for the parties to litigate or for the courts to decide. But those cases tend to be the exception. Much of litigation—at least when practiced successfully—requires the mastery of a fundamental set of skills or tasks, the blocking and tackling of the craft.

This week’s decision by the Seventh Circuit in Cripe v. Henkel Corp., No. 17-1231 (June 7, 2017), written by Judge Frank Easterbrook, is a reminder for litigators of the importance of mastering the fundamentals. The court held that the plaintiff in a personal-injury action had failed to disclose any experts, or provide any expert reports, under Fed. R. Civ. P. 26(a)(2) to rebut the defendant’s expert on causation. When the defendant moved for summary judgment, the trial court granted the motion, given that there was no contrary evidence. The Seventh Circuit affirmed, reaching the profound conclusion that “[y]ou can’t beat something with nothing.”

Continue reading this entry

BNSF Railway: SCOTUS Narrows General Jurisdiction for Corporate Defendants and Limits the Reach of Wisconsin's Long-Arm Statute

Last week, in BNSF Railway Co. v. Tyrrell, 581 U.S. ___, No. 16-405, the U.S. Supreme Court reversed the Montana Supreme Court and concluded that BNSF Railway was not subject to general jurisdiction in Montana to answer for alleged work-related injuries occurring in North Dakota and South Dakota. Though BNSF maintained over 2,000 miles of railroad track in Montana and employed more than 2,000 workers there, it was a Delaware corporation with its principal place of business in Texas. Despite BNSF’s significant ties to Montana and the revenue it generated from its work there, the Court nevertheless held that the Railway was not “at home” there for purposes of defending claims arising outside the state.

This represents a continuation of the Court’s earlier decisions in Goodyear Dunlop Tires Operations v. Brown, 564 U.S. 915 (2011), and Daimler AG v. Bauman, 134 S. Ct. 746 (2014). As the Court noted in Goodyear, “specific jurisdiction has become the centerpiece of modern jurisdiction theory, while general jurisdiction [has played] a reduced role.” Accordingly, Goodyear took a deep look at what was necessary to subject corporations to general jurisdiction in a state and concluded that it was appropriate only “when their affiliations with the State are so ‘continuous and systematic’ as to render them essentially at home in the forum State.”

Continue reading this entry

Water Splash Reveals a Glaring Omission in Wisconsin's Service-of-Process Rules, Which Ought To Be Fixed

Today’s unanimous U.S. Supreme Court decision in Water Splash, Inc. v. Menon, 581 U.S. ___, No. 16-254, points out a glaring omission in Wisconsin’s service-of-process rules that ought to be fixed, so that Wisconsin plaintiffs are not unnecessarily put at a disadvantage when suing overseas defendants in state court. Justice Samuel Alito’s decision, reversing the Texas Court of Civil Appeals, held that Article 10(a) of the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, Nov. 15, 1965 (Hague Service Convention), 20 U. S. T. 361, T. I. A. S. No. 6638, authorizes service of process, including summons, by mail in any country that is party to the Hague Service Convention and does not object to mail service. Canada, where the respondent Tara Menon lives, does not object, so the Supreme Court upheld the judgment that Water Splash obtained against her by default when she refused to appear in Texas. The Texas courts had not determined whether Texas law allows service by mail, so the Court sent the case back to allow them to make that call.

Wisconsin’s state law clearly precludes service by mail in this situation. Wis. Stat. § 801.11 requires personal or substituted service on defendants or their agents, unless the plaintiff can be served by publication and mailing under § 801.11(1)(c). That statute requires the plaintiff first to attempt personal or substituted service “with reasonable diligence,” which certainly takes time, and service by publication in a foreign country is itself a dicey proposition from the plaintiff’s perspective. How do you do it, and is such publication constitutionally effective?
Continue reading this entry

Midland Funding Highlights Peculiar Feature of Wisconsin's Statute-of-Limitations Law

The U.S. Supreme Court’s decision today in Midland Funding, LLC v. Johnson, 581 U.S. ___, No. 16-348, draws attention in passing to a peculiar feature of Wisconsin law on the effect of statutes of limitations. The 5-3 decision, in an opinion by Justice Stephen Breyer, holds that a debt collector that files a proof of claim in bankruptcy when collection is barred by a statute of limitations does not thereby violate the Fair Debt Collection Practices Act’s prohibitions on asserting any “false, deceptive, or misleading representation,” or using any “unfair or unconscionable means” to collect a debt. 15 U.S.C. §§ 1692e, 1692f. In reversing the Eleventh Circuit’s contrary holding, the Court agreed with all the other federal courts of appeals that have decided the issue, including the Seventh Circuit. See Owens v. LVNV Funding, LLC, 832 F.3d 726 (7th Cir., 2016). Owens involved cases from Indiana and Illinois, whose common law holds (like that of the majority of states) that the running of a statute of limitations only bars an action to collect but does not extinguish the claim. Id. at 731.

Wisconsin is different, at least on the surface. As Justice Breyer noted in his Midland Funding opinion, slip op. at 3, Wis. Stat. § 893.05 provides that “[w]hen the period within which an action may be commenced . . . has expired, the right is extinguished as well as the remedy.” The statute codifies Wisconsin’s common law. See Maryland Cas. Co. v. Beleznay, 245 Wis. 390, 14 N.W.2d 177 (1944). Nevertheless, the practical significance of Wisconsin’s minority view on extinction of debt as well as remedy is difficult to assess, for the statute of limitations is an affirmative defense that must be raised in an answer or motion, Wis. Stat. §§ 802.06(2)(a)9., 802.06(8)(b), and failure to raise it waives it. See Johnson v. Heintz, 73 Wis. 2d 286, 298-99, 243 N.W.2d 815 (1976).
Continue reading this entry