Justices to tackle constitutionality of agency deference, recreational immunity

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The Wisconsin Supreme Court has voted to take on 11 new cases, including one in which the justices have asked the parties to submit briefs concerning the constitutionality of courts’ practice of deferring to agencies’ interpretations of statutes.

Tetra Tech EC Inc. v. Wisconsin Department of Revenue stems from various paper companies’ release of polychlorinated biphenyls into the Fox River. After being ordered by the federal Environmental Protection Agency to clean up the river, the business decided to create a separate company, Lower Fox River Remediation LLC, to oversee and conduct the required remedial work. That company then hired the contractor Tetra Tech, which in turn hired several contractors to work on the cleanup.

One of the subcontractors, Stuyvesant Dredging Inc., was charged with both separating sand from the polluted sediment that was dredged up from the river and with extracting water from the remaining polluted sediment.

In 2010, the DOR determined that Tetra Tech should have paid sales taxes on its sale of Stuyvesant Dredging’s services to Lower Fox River and that Lower Fox River should pay use taxes on services it got from Tetra Tech.

Lower Fox River and Tetra Tech petitioned the Tax Appeals Commission to review the DOR’s determinations. The commission sided with the DOR, finding SDI’s work was taxable. The two companies continued to challenge the determination, though, filing a petition for review in Brown County Circuit Court.

Judge Marc Hammer affirmed the Tax Appeals Commission’s decision, and the state Court of Appeals also affirmed Hammer’s decision. The companies then petitioned the high court to review the matter.

The main issue the companies have asked the justices to weigh in on is whether Stuyvesant Dredging’s services fall under the definition of “processing” of personal tangible property and are subject to use and sales tax under Wis. Stat. 77.52(2)(a)11.

The justices have also asked the parties to file a brief on a hot topic: Whether courts’ practice deferring to agencies’ interpretations of statutes is in line with a state constitutional provision that vests judicial power in the unified court system.

The issue was brought up in Operton v. Labor and Industry Review Commission, an appeal over whether a Madison woman was properly denied jobless benefits under a recently enacted law. The Labor and Industry Review Commission had contended that it was entitled to the sort of great-weight deference that is usually granted to agencies’ interpretations of the law. In this particular case, though, the commission had no previous experience interpreting the law at issue in the case. Even so, the majority of the justices on the Supreme Court declined to weigh in on the issue of deference and instead found the commission had failed to interpret the statute.

Yet, three of the seven justices, in a concurring opinion written by Justice Rebecca Bradley, called for the court to tackle the deference issue and do away with courts’ long-standing practice of deferring to agencies’ interpretations of statute unless those interpretations are clearly erroneous. The practice, Bradley wrote, runs afoul of the state Constitution and judges’ duties as elected officials.

Justice Annette Ziegler, in her concurring opinion, noted that she would like to see briefs on the issue of agency deference before deciding whether to change the state’s long-established practices.

Chief Justice Pat Roggensack, who wrote the majority opinion in the Operton case, recently wrote a law-review article questioning the notion that the courts should always pay deference to state agencies. If taken too far, Roggensack argued, deference does little more than give court officials a convenient excuse for avoiding the very decisions they were elected to make.

The justices also recently granted certiorari to 10 other cases:

Partnership Health Plan v. OCI: The case stems from a dispute over what ought to be done with $4 million to $5 million worth of money left over from the liquidation proceedings of a charitable service-insurance corporation. A decision from the court could clarify certain provisions of Chapter 645 of the Wisconsin Statutes, which govern rehabilitation and liquidation proceedings.

Metropolitan Associates v. City of Milwaukee: The case, which stems from a dispute between a property owner, Metropolitan Associates, and Milwaukee over several property tax assessments, will have the high court weighing in on various statutes and case precedents concerning property taxes. Metropolitan Associates contends that certain property assessments were invalid because a city assessor had failed to use the proper methods.

Movrich v. Lobermeier: The case stems from a dispute between two neighbors, who are also siblings, over the installation of a pier in Sailor Creek in Price County. The high court will be weighing in on issues involving the public-trust doctrine, under which the state holds navigable waters in trust for the public.

State v. Grandberry: In this criminal case, the high court will be weighing in on laws related to concealed carry and the transportation of weapons. The case stems from the appeal of Brian Grandberry, who was charged and found guilty of carrying a concealed weapon. An officer had stopped Brian Grandberry in Milwaukee in 2014. He told the officer that he had a gun in the glove compartment and that he had a permit for it. The officer later discovered Grandberry did not have a permit. Among other things, Grandberry has been contending that because he complied with the law involving transportation of concealed weapons, there was not enough evidence to convict him of carrying a concealed weapon.

Nationstar Mortgage v. Stafsholt: The civil case out of St. Croix County stems from a dispute over attorney fees resulting from a home-loan foreclosure. Robert Stafsholt and his ex-wife had a mortgage on a New Richmond property, and in 2012 the mortgage holder filed a foreclosure action against them, alleging that they had defaulted on the mortgage by failing to pay past due payments. Eventually, the trial court dismissed the foreclosure action and reinstated the Stafsholts’ mortgage but declined to award them attorney’s fees. After the Stafsholts made a motion for reconsideration, the court found that they could recover some attorney fees and adjusted the principal balance of their mortgage accordingly. Both parties appealed, and the state Court of Appeals found that the trial court had no authority to award attorney fees in that manner.

Westmas v. Selective Insurance Co. of South Carolina: The justices in this case will determine whether a contractor in charge of trimming trees on recreational land is entitled to recreational immunity as either an agent of the landowner or as an occupant. The case stems from a lawsuit filed by the son and husband of a woman who died when a tree limb fell on her as she was walking on a shoreline path along Lake Geneva. At the time, Creekside Tree Services, was trimming trees for the landowner.

State v. Breitzman: The criminal case out of Milwaukee County asks the justices to consider whether the First Amendment prevents a person from being charged with disorderly conduct for making profane statements to family members. The appeal also asks the justices to determine whether the defendant’s trial counsel was ineffective for failing to respond to the arguments in the case by making a motion to dismiss the charge.

State v. Dorsey: In the appeal out of Eau Claire County, the justices will examine how the state’s rule of evidence involving “other acts” applies to domestic abuse cases, including whether evidence of criminal acts committed by people other than victims are admissible for showing a defendant’s motives or goals related to people with whom the defendant has a domestic relationship.

State v. Washington: In the case out of Racine County, the justices are being asked to weigh in on whether a criminal defendant may waive the statutory right to be present during a trial before the proceedings have begun. The case stems from Michael Washington’s refusal to appear at trial and subsequent convictions on burglary and obstruction charges. Unlike at trial, Washington did appear at his sentencing hearing. He later appealed his conviction, contending it was invalid because he was not present at trial. In making that argument, he cited precedents set by the case of State v. Dwyer, a Court of Appeals decision dating to 1994.

State v. Bell: The justices in this case will weigh in on whether a prosecutor may argue that a jury must believe certain witnesses lied in order to find a criminal defendant not guilty and whether the prosecutor may also argue that the defendant must provide evidence that those witnesses lied. The case, out of Monroe County, stems from the conviction of Gerrod Bell on three counts of second-degree sexual assault, one count of misdemeanor bail-jumping and one count of second-degree sexual assault of a child.