Foxconn Law Transforms State Courts
Company gets more and quicker access, while everyone else waits for justice.
The new Foxconn law changes the rules for how Wisconsin courts work in cases involving government decisions about the firm and its site, giving Foxconn quicker access and more access to appellate courts than other firms and individuals in the state have.
And Foxconn’s ability to push to the head of the line means that other Wisconsin citizens seeking justice in the courts face potentially lengthy delays.
Under the new law, Foxconn gets multiple appeals of unfavorable trial court rulings in a single case. It doesn’t work that way for others. With a few exceptions, litigants in trial courts must await final judgment before appealing the case.
If Foxconn doesn’t like how a circuit court rules, it gets to jump right to the highest court in the state for its appeals. The vast majority of non-Foxconn appellants head first to the Wisconsin Court of Appeals. Only after that court issues its decision does the losing party petition the Supreme Court of Wisconsin to review the case.
Not so for litigants in an EITM-zone case. Instead, the Court of Appeals must certify an EITM-zone appeal to the Supreme Court, meaning that the case may bypass the Court of Appeals. Contrary to its exercise of discretion in other cases, the Court of Appeals has no choice regarding certification, regardless of whether that court believes certification is justified.
Moreover, the briefing and certification process in Foxconn cases occur on an expedited schedule. Previously, the legislature directed expedited schedules for cases involving termination of parental rights and consent to a minor’s abortion. The Foxconn legislation puts EITM-zone appeals on a similar fast track.
Certification does not mean the Supreme Court must take the case. The Supreme Court generally reviews cases that involve a significant question of constitutional law, new doctrine, a novel issue with statewide impact, a legal question likely to recur, a conflict between a lower-court decision and decisions of other courts, or the need for policy. Four of the seven justices must agree to the bypass.
The Foxconn legislation bumps any appeal concerning governmental decisions about an EITM zone to the Supreme Court for consideration of certification regardless of whether that case involves matters of statewide concern, unsettled law or policy, or lower-court conflicts. A Foxconn appeal of, say, a building inspector’s requirement, a municipal zoning decision, or an environmental agency determination may not have statewide significance.
Nevertheless, the Supreme Court now must spend time considering each certification, impacting the Court’s other work.
Certification is generally not a quick process. Each one requires a commissioner to draft a memorandum analyzing the facts and law involved in the appeal and recommending whether certification should be granted. The justices are expected to read each certification and memorandum, listen to an oral report by the commissioner, then decide whether to grant certification. During the 2016-2017 term, the Supreme Court received only six certifications from the courts of appeals and accepted only one. Presumably, EITM-zone litigation will significantly increase the number of certifications the Supreme Court will have to consider.
It’s too early to know whether the Court will actually grant more certifications. Will EITM-zone litigation cause the Supreme Court to accept fewer cases not related to Foxconn?
Moreover, the Foxconn legislation mandates that the Supreme Court “give preference” to a certification regarding an EITM-zone appeal. In other words, the Supreme Court must place any Foxconn EITM-zone case ahead of other appeals, including those concerning important civil and criminal matters.
Once Foxconn starts filing appeals, no matter how inconsequential, the court’s work on issues of statewide importance will get pushed to the side.
Based on this term’s calendar, here are the types of cases that could sit when Foxconn skips ahead in line:
- Issue – Whether contractors are immune from liability for injuries or death occurring on recreational land. Property owner Conference Point hired Creekside Tree Service to trim trees on land that included a public right-of-way path around Geneva Lake. Creekside set up cones and its employees tried to halt tree work until pedestrians passed. Nevertheless, as Jane Westmas walked on the path near the trimming work, a tree limb fell and killed her. Her husband and son sued Creekside, which argues to the Supreme Court that it should escape liability under a statute providing a land owner with immunity regarding death or injury of a person engaged in recreational activity on the property.
- Issue – Whether the “implied consent” law that applies to all drivers on Wisconsin roads allows police to draw blood from an unconscious motorist without a warrant. A police officer received information that Gerald Mitchell appeared drunk and was driving a gray minivan. The officer found Mitchell walking near the van. Mitchell appeared intoxicated and blew a .24 on a preliminary breath test, so the officer arrested him. On the way to the hospital for a blood test, Mitchell became incapacitated and would not wake up or respond to stimulation. The officer admitted in court that he could have applied for a warrant but did not, and no emergency circumstances existed. Wisconsin law provides that any person who drives on public roads in the state is deemed to consent to breath, blood or urine tests to determine the presence of alcohol and presumes that an unconscious person did not withdraw consent. The case has statewide impact regarding whether drawing blood from an unconscious motorist violates the United States Constitution’s protection against unreasonable searches and seizures
- Issue – Whether constitutional free-speech rights prohibit prosecution for statements made within the privacy of the home. Ginger Breitzman was convicted of disorderly conduct for berating her son with profanities after her son burned popcorn in the microwave. The son had been talking with a friend and hid his phone in his pocket, allowing the friend to hear Breitzman’s tirade. Breitzman argued that though her speech was offensive, it was in her own home and could not have caused a disturbance in the community. A decision could have statewide application regarding what constitutes disorderly conduct and the scope of free-speech rights within the home.
- Issue – The interplay between the concealed-carry statute and the weapon safe-transport statute. When police stopped Brian Grandberry he admitted having a loaded gun in his glove compartment. Grandberry did not have a concealed-carry permit but argued that he did not violate the law because he was following the safe-transport statute, which controls the lawful placement of weapons in vehicles.
- Issue – Whether an adult can be charged with a crime for conduct occurring when he was under 10 years old. As an adult, Shaun Sanders was charged with fondling his younger sister’s breasts. The fondling occurred when Sanders was between nine and 12 years old. He argues that he should not be held criminally responsible for the conduct occurring when he was nine, as 10 is the earliest age for a juvenile delinquency charge. The case could have statewide impact regarding the legal treatment of criminal conduct by children.
- Issue – Whether the Wisconsin Employment Relations Commission must disclose names of those voting in a municipal employees’ union recertification election while the election is ongoing or can withhold those names until after the election period closes. During a 20-day school-district union recertification election in 2015, Madison Teachers, Inc. filed a public record request for the names of those who had voted up to that date. James Scott, chairman of the Commission, withheld the names until after the election period closed. On appeal, Attorney General Brad Schimel contends on Scott’s behalf that public policy against voter intimidation outweighed public policy in favor of disclosing public records. The case should have statewide impact due to the yearly recurrence of public-employee unions’ recertification elections and Scott’s alleged withholding of names upon public-records requests during at least one subsequent election.
More about the Foxconn Facility
- Wisconsin Can’t Afford Another Foxconn “Nuclear Bomb” - Democratic Party of Wisconsin - Oct 20th, 2017
- What are Walker and Foxconn hiding? - Democratic Party of Wisconsin - Oct 17th, 2017
- Foxconn gamble shrouded in secrecy - State Sen. Jennifer Shilling - Oct 16th, 2017
- Court Watch: Foxconn Law Transforms State Courts - Margo Kirchner - Oct 12th, 2017
- Walker and Forty-Fifth President Sweeten Deal for Foxconn - State Sen. Lena Taylor - Sep 28th, 2017
- Walker picks Foxconn over Wisconsin schools and roads - State Sen. Jennifer Shilling - Sep 18th, 2017
- Governor Walker Signs Wisconn Valley Special Session Bill into Law - Gov. Scott Walker - Sep 18th, 2017
- The State of Politics: Mr. Gou – Your Turn - Steven Walters - Sep 18th, 2017
- Governor Walker Applauds Legislature for Approving Wisconn Valley Special Session Bill - Gov. Scott Walker - Sep 14th, 2017
- Governor Walker Releases Statement on Bipartisan Senate Passage of Wisconn Valley Special Session Legislation - Gov. Scott Walker - Sep 12th, 2017
- WEDC’s Poor Jobs Accountability Record Makes Foxconn Deal a Scandal Waiting to Happen - Citizen Action of Wisconsin - Sep 11th, 2017
- Op Ed: Foxconn Deal Suspends Judicial Rules - Wisconsin Democracy Campaign - Sep 11th, 2017
- GOP Puts $3 Billion Foxconn Thumb on Scales of Justice - One Wisconsin Now - Sep 5th, 2017
- Op Ed: Foxconn Multiplier Overstates New Jobs - William L. Holahan and Charles O. Kroncke - Sep 2nd, 2017
- Walker administration misleads on environmental rollbacks for Foxconn - State Rep. Katrina Shankland - Aug 31st, 2017
- Murphy’s Law: Newest Deal Shows Foxconn Flaws - Bruce Murphy - Aug 29th, 2017
- The State of Politics: Would Democratic Governor Kill Foxconn Deal? - Steven Walters - Aug 28th, 2017
- Op Ed: Illinois Loves Our Foxconn Deal - State Sen. Kathleen Vinehout - Aug 26th, 2017
- Biking: Foxconn, Biking and State Roads - Dave Cieslewicz - Aug 25th, 2017
- Op Ed: Foxconn Should Embrace Green Goals - John Torinus - Aug 24th, 2017
- Washington State Representative Offers Warning for Wisconsin on Foxconn - One Wisconsin Now - Aug 24th, 2017
- Murphy’s Law: Paper Peddles Bogus Foxconn Report - Bruce Murphy - Aug 23rd, 2017
- Representative Lisa Subeck Calls on Joint Finance Committee Co-Chairs to Focus on Budget, Prioritize People over Profits - State Rep. Lisa Subeck - Aug 22nd, 2017
- Governor Walker Highlights Opportunities Foxconn Brings for Wisconsin’s Healthcare Industry - Gov. Scott Walker - Aug 22nd, 2017
- The State of Politics: Foxconn Biggest Deal in State History - Steven Walters - Aug 21st, 2017
- Statewide Online Tool Assists Wisconsin Companies Seeking to Do Business with Foxconn - Gov. Scott Walker - Aug 21st, 2017
- The Senate Must be The Grownups in the Room… Again. - State Sen. Tim Carpenter - Aug 21st, 2017
- Op Ed: The Many Broken Promises of Foxconn - State Rep. David Bowen - Aug 20th, 2017
- Rep. Goyke Statement on Foxconn Special Session Bill - State Rep. Evan Goyke - Aug 18th, 2017
- Wisconsin Budget: Foxconn Could Take Till 2058 To Pay Off - Jon Peacock - Aug 18th, 2017
- Governor Walker Releases Statement on Bipartisan Assembly Passage of Wisconn Valley Special Session Legislation - Gov. Scott Walker - Aug 18th, 2017
- Republican Agenda Puts Corporate Welfare Package for Taiwanese Company Ahead of our Public Schools - State Rep. Dianne Hesselbein - Aug 17th, 2017
- Rep. Sinicki Votes No on Foxconn Package - State Rep. Christine Sinicki - Aug 17th, 2017
- Statement from Rep. Barca on the Assembly Passage of Foxconn Bill - State Rep. Peter Barca - Aug 17th, 2017
- Facts on Foxconn Trump Proponents’ Protestations Deal Would Benefit Wisconsin - One Wisconsin Now - Aug 17th, 2017
- Foxconn Debate Cheat Sheet - State Rep. Gordon Hintz - Aug 17th, 2017
- $3 Billion Foxconn Boondoggle Sells Out Wisconsin’s Future to Foreign Corporation - State Rep. Lisa Subeck - Aug 17th, 2017
- Op Ed: How to Get a Better Deal From Foxconn - John Torinus - Aug 17th, 2017
- Data Wonk: Will Foxconn Deal Fight Poverty? - Bruce Thompson - Aug 16th, 2017
- Governor Walker Moderates Foxconn Roundtable Discussion in Green Bay - Gov. Scott Walker - Aug 16th, 2017
- Op Ed: Where Will Foxconn Find Workers? - State Rep. Gordon Hintz - Aug 16th, 2017
- Vukmir: The time is now for Foxconn - Assistant Majority Leader Leah Vukmir - Aug 15th, 2017
- Foxconn tax break could exceed $1 million per job - State Sen. Jennifer Shilling - Aug 14th, 2017
- Paul Ryan Challenger Opposes $3 Billion Corporate Handout to Foxconn - Cathy Myers - Aug 14th, 2017
- The State of Politics: 10 Tough Questions About Foxconn Deal - Steven Walters - Aug 14th, 2017
- Dana Wachs Announces Opposition to Foxconn Package - State Rep. Dana Wachs - Aug 13th, 2017
- Campaign Cash: Did Foxconn Lobby Illegally? - Wisconsin Democracy Campaign - Aug 12th, 2017
- Statement from Rep. Barca Regarding Republican Amendment to Foxconn Bill - State Rep. Peter Barca - Aug 11th, 2017
- Statement: Amendment to Special Session Assembly Bill 1 - Wisconsin Assembly Speaker Robin Vos - Aug 11th, 2017
- Op Ed: Renegotiate the Foxconn Deal - Matt Flynn - Aug 11th, 2017
- Murphy’s Law: Walker’s Desperate Deal With Foxconn - Bruce Murphy - Aug 10th, 2017
- Foxconn Deal Flounders in State Legislature - One Wisconsin Now - Aug 10th, 2017
- If ‘Ifs’ and ‘Buts’ Are Candies and Nuts We’ll Have Foxconn Deal Paid Off in 2043 - One Wisconsin Now - Aug 9th, 2017
- Rep. Shankland: Statement on Foxconn Analysis - State Rep. Katrina Shankland - Aug 8th, 2017
- Foxconn Fiscal Analysis Deeply Troubling for Wisconsin Taxpayers - State Rep. David Crowley - Aug 8th, 2017
- Statement from Rep. Barca on New Fiscal Analysis of Proposed Foxconn Deal - State Rep. Peter Barca - Aug 8th, 2017
- Rep. Hintz Statement on Foxconn Cost to Taxpayers - State Rep. Gordon Hintz - Aug 8th, 2017
- Campaign Cash: Bill Has $10 Million Giveaway to Fiserv - Wisconsin Democracy Campaign - Aug 8th, 2017
- Wisconsin Veterans Chamber of Commerce Calls For Foxconn Project to Include Disabled Veteran Owned Businesses - Wisconsin Veterans Chamber of Commerce - Aug 7th, 2017
- Wisconsin Budget: The High Cost of Foxconn - Jon Peacock - Aug 4th, 2017
- What Does the Foxconn CEO Say About His Employees? - One Wisconsin Now - Aug 4th, 2017
- Foxconn Hearing: Big Promises, Little Details, Lacks Transportation Plan - State Rep. David Crowley - Aug 3rd, 2017
- One Wisconsin Now Testimony on Foxconn Subsidy Legislation - One Wisconsin Now - Aug 3rd, 2017
- No Guarantees to Prevent Wisconsin Tax Dollars From Subsidizing Illinois Jobs in Foxconn Deal - One Wisconsin Now - Aug 2nd, 2017
- Unnecessary to Sacrifice Natural Resources for Foxconn - Wisconsin League of Conservation Voters - Jul 31st, 2017
- Statement from Rep. Barca on Foxconn Developments - State Rep. Peter Barca - Jul 28th, 2017
- The Contrarian: Walker’s Reelection Now A Certainty - George Mitchell - Jul 28th, 2017
- Eyes on Milwaukee: Foxconn Loves Wisconsin, Walker - Jeramey Jannene - Jul 27th, 2017
- Governor Walker, Foxconn Founder and CEO Terry Gou Sign Memorandum of Understanding in Milwaukee - Gov. Scott Walker - Jul 27th, 2017
- REALTORS® Welcome Foxconn - Greater Milwaukee Association of REALTORS® - Jul 27th, 2017
- MATC Statement on Foxconn - Milwaukee Area Technical College - Jul 26th, 2017
- Statement from Rep. Barca on Foxconn Economic Development Announcement - State Rep. Peter Barca - Jul 26th, 2017
- Milwaukee County Executive Chris Abele Statement on Foxconn Announcement - County Executive Chris Abele - Jul 26th, 2017
- Global High-Tech Manufacturer Foxconn Announces $10 Billion Investment, Will Create 13,000 Jobs in New Wisconsin Campus - Gov. Scott Walker - Jul 26th, 2017
- Foxconn Frenzy: Proceed with Caution - State Sen. Chris Larson - Jul 26th, 2017
- Shilling cautious on Foxconn announcement - State Sen. Jennifer Shilling - Jul 26th, 2017
- Op Ed: Loss of Talgo Train Hurts Foxconn Deal - James Rowen - Jul 20th, 2017
- Mayor Barrett Supports Siting Foxconn Facility in Southeastern Wisconsin - Mayor Tom Barrett - Jul 17th, 2017
- On the Air: How Likely Is It Foxconn Will Create 10,000 Jobs? - Urban Milwaukee - Jul 13th, 2017
- Murphy’s Law: Walker Building Yesterday’s Economy - Bruce Murphy - Jul 13th, 2017
- Eyes on Milwaukee: Foxconn Lands in Milwaukee - Jeramey Jannene - Jul 10th, 2017