Those keeping an eye on the Wisconsin Supreme Court know that it’s been in the news a bit over the last month. But in this column, we look past the internal politics of the court and review the civil cases currently pending before it, paying special attention to those affecting civil practitioners in Wisconsin. The court kicks off its 2023–24 term with a relatively light September oral argument calendar, featuring just two civil cases. Constitutional rights and tax issues lead the way into the new term.
Cases Decided
With the term getting underway this month, there are no recent decisions to report.
Up for Review
A.M.B. v. Circuit Court for Ashland County, No. 2022AP1334
Family Law
Oral Argument: September 11
This adoption case asks the following question: May the state require a would-be adoptive father to be married to the child’s mother as a condition of adoption? Wisconsin Stat. § 48.81 provides that a child may be adopted when, among other circumstances, the “person filing the petition for adoption is the spouse of the child’s parent with whom the child and the child’s parent reside.” See also Wis. Stat. § 48.92(2). The would-be adoptive father raises constitutional challenges to this statute under article I, section 1 of the Wisconsin Constitution and the Equal Protection Clause of the Fourteenth Amendment. Despite the potential constitutional significance of this case, briefing in the case is sealed, so it’s impossible to tell exactly what arguments the justices are considering. In addition, the court took the case on a petition for bypass, meaning the court of appeals never issued an opinion on the case. The sole public record shedding light on the case is a press release from the Wisconsin Supreme Court indicating that the court granted bypass and listing the issues.
Catholic Charities Bureau, Inc. v. Labor & Industry Review Commission, No. 2020AP2007
Taxation & First Amendment
Oral Argument: September 11
Full disclosure: MTFN filed an amicus brief in this case on behalf of several parochial schools and organizations, arguing for an inclusive interpretation of Wis. Stat. § 108.02(15)(h)2.
By default, employers must pay unemployment insurance taxes for their employees. However, some employees, such as those for churches and schools, are exempt from the tax. This case involves an exception for non-church organizations that are (1) “operated primarily for religious purposes,” and (2) “operated, supervised, controlled, or principally supported by a church or convention or association of churches.” Wis. Stat. § 108.02(15)(h)2. Catholic Charities Bureau and several of its sub-entities challenge the imposition of the unemployment insurance tax for their employees, arguing that the Roman Catholic Church operates these charity organizations primarily because of the church’s religious motivations. The court of appeals rejected the argument, holding that § 108.02(15)(h)2. calls for an inquiry into the organization’s activities, not just its motivations. In the court of appeals’ view, the charitable activities of Catholic Charities and its sub-entities were insufficiently religious in character to qualify for the exemption. Briefing at the supreme court—which includes no fewer than ten amicus briefs—raises both statutory and First Amendment arguments.
New to the Docket
Amazon Logistics, Inc. v. Labor & Industry Review Commission, No. 2022AP13
Employment & Taxation
Petition for Review Granted: August 17, 2023
The court granted review in this case involving the classification of Amazon “delivery partners”—gig economy workers who deliver packages using their own vehicles—as independent contractors or employees. On the line is a sizable bill for unemployment insurance taxes. Ostensibly, the case involves the interpretation of Wis. Stat. § 108.02(12)(bm)2.’s description of independent contractors. But it could also call into question the application of Tetra Tech EC, Inc. v. DOR, 2018 WI 75, 382 Wis. 2d 496, 914 N.W.2d 21 (a case which ended deference to administrative interpretations of law) in the worker’s compensation and unemployment insurance contexts. The court of appeals determined that the state properly classified Amazon’s delivery partners as employees.
Sojenhomer LLC v. Village of Egg Harbor, No. 2021AP1589
Eminent Domain
Petition for Review Granted: August 17, 2023
The court also granted review in an eminent domain case involving a question of statutory interpretation. Wisconsin Stat. § 32.015 restricts government authority to use its eminent domain power “to establish or extend . . . a pedestrian way,” defined as “a walk designated for the use of pedestrian travel.” See also Wis. Stat. §§ 61.34(3)(b) & 346.03. But is that restriction limited to things like standalone paths and trails, or does it apply more broadly to cover sidewalks running alongside a street? The court of appeals held that a sidewalk running alongside a street is within the definition of a “pedestrian way,” and therefore use of the eminent domain power to construct a sidewalk was not permitted.
