The Wisconsin Supreme Court handed down decisions last month on issues involving healthcare, constitutional law, and employment issues. Read on for all the latest.

Cases Decided

Gahl v. Aurora Health Care, Inc., No. 2021AP1787-FT


Decision Filed: May 2, 2023

Public Citation: 2023 WI 35

In October of 2021, Allen Gahl, acting as power of attorney for a Covid-19 patient, petitioned the circuit court for an order compelling Aurora Health Care to administer ivermectin to the patient. The circuit court issued a temporary order providing a process by which ivermectin would be administered to the patient—an order the court of appeals promptly stayed and later reversed. In a majority decision authored by Justice Ann Walsh Bradley and joined by six of the court’s seven justices, the court affirmed. It held that the circuit court erroneously exercise of discretion because it failed to reference any legal basis on which Gahl had a reasonable probability of success on the merits, which is one of the required showings for issuance of preliminary relief. The court did not consider any of the three legal theories Gahl raised on appeal to support the circuit court’s order because a reviewing court could not identify any legal theory the circuit court actually relied on. Justice Rebecca Grassl Bradley authored a lengthy dissent in which she argued that the majority incorrectly applied the erroneous exercise of discretion standard because it did not look for reasons to sustain the circuit court’s decision.

Wisconsin Justice Initiative, Inc. v. Wisconsin Elections Commission, No. 2020AP2003

Constitutional Law

Decision Filed: May 16, 2023

Public Citation: 2023 WI 38

In April of 2020, the people of Wisconsin ratified a constitutional amendment colloquially known as Marsy’s Law. It was aimed at expanding victim rights and included several multi-faceted provisions. In this case, an organization called the Wisconsin Justice Initiative brought a state constitutional challenge, claiming that the short summary of the proposed amendment included on voters’ ballots insufficiently described the contours of the amendment. Six justices rejected the challenge, expressing relatively broad agreement that the ballot question was sufficient.

What’s really interesting about this case, though, are the sharply divided opinions it generated. The majority opinion, authored by Justice Hagedorn and joined primarily by the more traditionally conservative wing of the court, took the opportunity to articulate an originalist method of interpretating the Wisconsin Constitution. That view focuses on the text and history of a constitutional provision to ascertain what it meant when originally ratified. Applying that view, the court concluded the original understanding of the Wisconsin Constitution imposes virtually no requirements on how a ballot question is presented to the voters, so long as it is not “fundamentally counterfactual.” Marsy’s Law easily passed that test.

Justice Dallet, meanwhile, authored a concurring opinion joined in full by Justice Karofsky and in part by Justice Ann Walsh Bradley. She rejected the majority’s embrace of originalism, and instead articulated a “pluralistic approach” to constitutional interpretation, considering the constitutional text, history, precedent, context, historical practice and tradition, and the need to balance majority values against values which should be protected from society’s majorities. Significantly, Justice Dallet went out of her way to note that “reliance on a particular method of interpretation in one case doesn’t bind future courts to use that same method in all future cases”—perhaps a sign of things to come once Justice-Elect Protasiewicz takes the bench. On the merits of the present case, Justices Dallet and Karofsky concluded the Marsy’s Law ballot summary gave voters a sufficient “gist of Marsy’s Law.” Justice Ann Walsh Bradley was the sole dissenter, arguing the summary was insufficient because it did not identify that Marsy’s Law may affect defendant’s rights.

An additional separate writing by Justice Hagedorn and joined by Justice Dallet warrants mention. Since the court’s 2020 decision in Zarder v. Humana Insurance Co., 2010 WI 35, 324 Wis. 2d 325, 782 N.W.2d 682, it has been widely understood (rightly or wrongly) that there is no such thing as non-binding dicta in Wisconsin Supreme Court decisions. Justice Hagedorn invited discussion on whether the pre-Zarder conception of dicta should be reinvigorated, such that statements outside a court’s rationale for its decision are not binding. (For more on this subject, check out MTFN appellate attorney James M. Sosnoski’s recent article on dicta in Wisconsin appellate courts.)

Fleming v. Amateur Athletic Union of the United States, No. 2021AP1054


Decision Filed: May 17, 2023

Public Citation: 2023 WI 40

Does an extended statute of limitations for an “action to recover damages for injury cause by an act that would constitute a violation of” certain sexual assault offenses against children apply to a negligent hiring and supervisions claim? No, answered the court in a 4-3 decision. Wisconsin Stat. § 893.587 extends the statute of limitations for victims of certain sexual assault offenses until the victim turns 35 years old. The statute obviously applies to suits against the perpetrator of sexual assault, but here, the plaintiff sued the Amateur Athletic Union, seeking damages for sexual assaults perpetrated against the plaintiff by her basketball coach while she was a minor. The majority opinion, authored by Chief Justice Ziegler and joined by the more traditionally conservative wing of the court, held that § 893.587 extends the statute of limitations only for claims against the person who committed the sexual assault, not for their employers or supervisors. Justice Karofsky authored a dissenting opinion, joined by Justices Ann Walsh Bradley and Dallet, in which she argued that the statute of limitations applies regardless of whether the defendant or some other party committed the sexual assault that caused the victim’s injuries.

Pepsi-Cola Metropolitan Bottling Co., Inc. v. Employers Insurance Co. of Wausau, No. 2021AP635


Decision Filed: May 24, 2023

Public Citation: 2023 WI 42

MTFN has a representational interest in this case. Accordingly, the discussion here is limited to a brief summary and does not offer commentary on the case.

This case called upon the court to determine the enforceability of consent-before-assignment provisions in third-party liability policies. Proceeding with only five justices, the court failed to reach a majority agreement on how to decide the case and therefore affirmed the court of appeals.

Up for Review

The court has no oral arguments scheduled for the remainder of the 2022–23 term.

New to the Docket

Nothing new to report.

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