By Gretchen Schuldt
Chief circuit court judges would be stripped of their power to appoint judges to preside over many cases involving businesses, under a bill pending in the state Legislature.
That power would shift to the chief judge of the state Supreme Court, who would only have to "consider" recommendations from the chief judges of the state courts' administrative districts, according to the Republican-backed measure. The bill is a significant legislative intrusion into the internal workings of the court system.
Another Republican bill would put teachers and school officials at risk of arrest under the state's obscenity laws and strip from them the immunity they now enjoy if their violations occur in their capacity as employees or officials.
And a bill backed by Democrats would eliminate common defenses in criminal cases if a crime allegedly was motivated by issues related to sexual orientation or gender identity.
More detail about the bills is below. A chart showing the sponsors of each is at the bottom of this post.
SB275/AB 280 – Business courts
The chief justice of the state Supreme Court would hand-pick circuit court judges across the state who would hear commercial cases, under this bill.
Judicial assignments at the circuit court level now generally are decided at the lower court level. The chief justice, in appointing commercial docket judges, would "consider" but not be bound by recommendations from chief judges of administrative districts.
The bill also would leave the decision to create specific commercial courts up to the chief justice, who would act on the recommendations of the director of state courts, an unelected bureaucrat. At a minimum, under the bill, the chief justice would be required to appoint four judges for business cases in each of the court system's second, third, fifth, eighth, and 10th administrative district.
Judges hearing commercial cases also could hear other types, according to the bill.
Wisconsin courts administrative districts
"The commercial court docket is designed to operate within the framework of the existing state court system with minimal impact on the balance of court operations," the bill states. "It is intended to leverage judicial expertise in commercial law and disputes with commercial litigants' desire to tailor case management practices best suited for resolving substantial business disputes fairly and expeditiously."
The Supreme Court, at the direction of then-Chief Justice Patience D. Roggensack, established a commercial court pilot program in 2017 and directly appointed the judges who heard those cases. Retired Dane County Circuit Judge Richard Niess criticized it, saying "the (judicial appointment) process largely bypasses the voter-controlled and otherwise random judicial assignment of cases. It creates a two-tiered court system — one controlled by business interests and one for everybody else."
Roggensack "stacked" a committee she appointed to develop the court "with lawyers representing business interests," Niess wrote. "The committee included no labor or consumer advocates, no one representing the viewpoints of the public, and no one speaking for the other stakeholders in our circuit court system."
"The committee included no labor or consumer advocates, no one representing the viewpoints of the public, and no one speaking for the other stakeholders in our circuit court system."
Under the bill, which would expand the business courts, commercial docket judges would have jurisdiction over a wide variety of cases, including cases involving the internal governance or internal affairs of business organizations.
The specialty courts would hear cases involving laws governing partnerships, business corporations, cooperatives, banks, savings and loans, and other fiduciaries.
They would also hear cases involving allegedly improper business conduct, including unfair competition; private suits alleging violations of the state mark-up law for gasoline or tobacco; deliberate injury to a business; wrongful interference with a business; non-compete clauses; confidentiality agreements; business mergers and consolidations; securities law and securities fraud; intellectual property rights; trademarks; trade secrets; copyright; patent rights; franchise law; the state Fair Dealership Law; sales representative commissions; some Uniform Commercial Code claims exceeding $100,000; receivership cases of more than $250,000; and commercial real estate construction disputes exceeding more than $250,000.
The bill would make some case types ineligible for the new dockets. They include small claims, governmental actions seeking to enforce laws or regulations, most cases involving consumer transactions, landlord-tenant disputes, domestic relations, civil rights, taxes, some arbitration issues, construction (except for the commercial disputes above), and environmental claims.
SB305/AB308 – Targeting teachers with obscenity statute
Public and private school employees would lose their immunity from prosecution under the state's obscenity laws, under a Republican-backed bill in the Legislature.
Currently, the law protects from prosecution employees, board members, or trustees of some educational institutions and libraries, as long as they are acting within the scope of their jobs.
The obscenity statute explains the reason the immunity was granted:
The Legislature "finds that the libraries and educational institutions ... carry out the essential purpose of making available to all citizens a current, balanced collection of books, reference materials, periodicals, sound recordings and audiovisual materials that reflect the cultural diversity and pluralistic nature of American society. The legislature further finds that it is in the interest of the state to protect the financial resources of libraries and educational institutions from being expended in litigation and to permit these resources to be used to the greatest extent possible for fulfilling the essential purpose of libraries and educational institutions."
The bill would make elementary, secondary, and tribal school employees and officials subject to prosecution. The immunity still would apply to employees and officials of libraries, technical colleges and tax-exempt colleges and universities.
The obscenity statute makes it a crime to import, print, sell, possess for sale, publish, exhibit, play, or distribute any obscene material; to produce or perform in any obscene performance; to distribute, exhibit, or play any obscene material to a person under the age of 18 years; or to possess with intent to distribute, exhibit, or play to a person under the age of 18 years any obscene material.
First-offense violations of the statute are punishable by forfeitures of up to $10,000, and every day the obscenity violation continues is be a new violation.
Under state law, “Obscene material" is any writing, picture, film, or other recording that:
1. The average person, applying contemporary community standards, would find appeals to the prurient interest if taken as a whole;
2. Describes or shows sexual conduct in a patently offensive way; and
3. Lacks serious literary, artistic, political, educational or scientific value, if taken as a whole.
The law also prohibits prosecutions without the express permission of the attorney general.
SB307/AB307 – Eliminating defenses
Defendants in criminal cases would be unable to plead they acted in self defense or were provoked into committing their alleged criminal actions if the action stemmed from learning or knowing about the alleged victim's gender identity or expression or sexual orientation or the potential disclosure of those factors. The defense elimination would apply in situations where the victim "made a romantic or sexual advance without use or threat of force or violence toward the defendant or in which the victim dated or had a romantic or sexual relationship with the defendant," according to the Legislative Reference Bureau explanation of the bill. It would apply, too, when the alleged victim dated or had a romantic or sexual relationship with the defendant.
The bill also would eliminate the ability of a defendant to plead not guilty by reason of mental disease or defect if the state were brought about by the factors listed above.
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