State Court Docket Watch

Service Employees International Union, Local 1 v. Vos

December 17, 2020

Docket Watch 2020

By Andrew C. Cook & Corydon James Fish

I. Introduction

In 2018, Wisconsin Governor Scott Walker and Attorney General Brad Schimel were unseated in the midterm elections by their Democratic opponents, while the Republicans in the legislature maintained full control of both the assembly and senate. A month after the 2018 gubernatorial and attorney general elections, the Republican-controlled legislature enacted three bills during an extraordinary session limiting the powers of incoming Democratic Governor Tony Evers and Attorney General Josh Kaul. The bills were signed into law by outgoing Governor Scott Walker just weeks before he left office.

The bills became 2017 Wisconsin Acts 368, 369, and 370. The new laws made numerous changes to Wisconsin’s Administrative Procedure Act[1] as well as laws governing interactions among the legislature, governor, and attorney general.

In response, several labor unions, political interest groups, and individual taxpayers (including the state senate assistant minority leader) filed a series of lawsuits in state and federal courts arguing the laws facially violated the Wisconsin Constitution’s separation of powers. On July 9, 2020, the Wisconsin Supreme Court issued its long-awaited decision. Instead of issuing one decision, the court issued two: the first upholding the majority of the laws limiting the powers of the governor and attorney general, and a second which struck down a portion of the laws that regulating state agency guidance documents.[2]

Justice Brian Hagedorn wrote the majority opinion on all issues except for the Act 369 provisions concerning guidance documents. Justice Hagedorn’s opinion was joined by Chief Justice Patience D. Roggensack, and Justices Annette Ziegler, Rebecca Bradley, and Daniel Kelly.[3] Justice Kelly wrote the majority opinion regarding the guidance document provisions. His opinion was joined by Justices R. Bradley, Ann Walsh Bradley, and Rebecca Dallet. Chief Justice Roggensack authored a separate opinion criticizing the court’s decision on the guidance documents issue. Justice Hagedorn, joined by Justice Ziegler also filed a dissenting opinion. Justice Kelly wrote an entire section in his majority decision addressing the significant criticisms contained in the dissenting opinions.

Given the breadth of the new laws and the court’s decision, this article focuses on those portions of the decision that dealt with the most noteworthy statutes.

II. Summary of Extraordinary Session Laws Limiting the Governor and Attorney General Powers

The 2018 extraordinary session laws were meant to provide the legislature more oversight authority of the governor and attorney general. Below is a summary of the main provisions of the laws that were challenged in court:

  • Suspension of Administrative Rules – Prior to the passage of Act 369, the Joint Committee for Review of Administrative Rules (JCRAR) could suspend an administrative rule for up to a single legislative session. The legislature could then pass a bill to make the suspension permanent. If the legislation was not enacted, then the rule would come back into effect and JCRAR could not suspend it again. Act 369 changed this procedure to allow JCRAR to suspend a rule multiple times prior to legislation being passed.[4] This in effect gave JCRAR the authority to indefinitely strike down a proposed administrative rule rather than requiring the full legislature to vote to strike down the rule.
  • Agency Deference – Act 369 codified the Wisconsin Supreme Court’s ruling in Tetra Tech EC Inc. v. Wisconsin Department of Revenue, which held that Wisconsin courts must not accord any deference to a state agency’s interpretation of law.[5]
  • Guidance Documents – Wisconsin administrative agencies routinely provide plain language explanations of statutes and administrative rules. However, some assert that guidance documents might contain standards or requirements that are found nowhere in statute or rule, essentially creating new law. In Act 369, the legislature defined a “guidance document”[6] and created a series of protections against agency attempts to use guidance documents to avoid rulemaking. These protections include requirements that agencies cite to statutory and regulatory authorities discussed in the document, make these documents publicly available, allow public comment periods, and permit private parties to petition an agency to promulgate a rule instead of issuing a guidance document.[7]
  • Legislative Intervention – Act 369 gave the legislature, through the Joint Committee on Legislative Organization, authority to intervene in any lawsuit challenging the validity of a state statute.[8]
  • Attorney General’s Settlement Authority – Prior to Act 369, the attorney general had the authority to compromise or discontinue any civil action on behalf of the state of Wisconsin, provided the governor approved the action. Act 369 provided the legislature with oversight over both of these functions, requiring legislative, instead of gubernatorial, approval to compromise or discontinue a civil action. Specifically, in order to compromise or discontinue a case, the attorney general must now submit a proposed plan to the Joint Finance Committee for its approval.[9]

Further, the attorney general cannot submit a settlement agreement for approval to the Joint Finance Committee in which the unconstitutionality or invalidity of a state statute is conceded without the approval of the Joint Committee on Legislative Organization.[10]

III. The Court’s Decision – Separation of Powers

The plaintiffs facially challenged[11] the constitutionality of the provisions described above in Acts 369 and 370. They alleged the statutes violated the separation of powers doctrine.

In its opinion, the court explained that when the Wisconsin Constitution was adopted in 1848, government power was divided among three separate branches, each “vested” with a specific core government power.[12] The court noted that “[w]hile separation of powers is easy to understand in theory, it carries with it not-insignificant complications.”[13] The court further explained the Wisconsin Constitution “sometimes takes portions of one kind of power and gives it to another branch.”[14] As a result, determining “where the functions of one branch end and those of another begin” is not always clear.[15]

According to the court, a “separation of powers analysis begins by determining if the power in question is core or shared,” with core powers being those powers that are “conferred to a single branch by the constitution.”[16] If a power is “core,” “no other branch may take it up and use it as its own.”[17] Shared powers, on the other hand, are those that “lie at the intersections of these exclusive constitutional powers.”[18] The three branches of government “may exercise power within the borderlands but no branch may unduly burden or substantially interfere with another branch.”[19] Using this legal framework, the court addressed the various laws passed by the legislature to determine whether they “unduly burdened” or “substantially interfered” with the core powers of executive branch, and thus violated the separation of powers doctrine.

A. Decision Upholding Laws Limiting Governor and Attorney General Powers

1. Legislative Involvement in Litigation

The court addressed the legislature’s authority to involve itself in litigation through both intervention and approval authority over the settling or discontinuing of cases involving either revenues deposited in the treasury or the validity of a statute. The court noted that while the attorney general is an executive officer, and the Wisconsin Department of Justice is an agency created by the legislature residing in the executive branch, the Wisconsin Constitution gives the legislature the authority to proscribe the powers of the attorney general.[20]

The court discussed the history of the legislature carrying out certain powers alongside the attorney general, namely engaging in litigation.[21] The legislature did so in its first ever legislative session in 1848, giving the attorney general the power to represent the state in cases where the state is a party or may have an interest when required by the governor or either house of the legislature.[22] According to the court, the attorney general’s ability to engage in litigation is not always a core executive function because of the legislature’s institutional interest in various types of cases, especially those involving revenue and statutes passed by the legislature.[23] The court determined that these interests were sufficient to defeat the facial challenges regarding legislative intervention and the ability to review settlements and discontinuances of certain cases.

2. Suspension of Administrative Rules

The legislature delegates a portion of its legislative power to administrative agencies by allowing them to make rules. These delegations are subject to procedural constraints contained in Wisconsin’s Administrative Procedure Act. One such constraint is JCRAR’s authority to temporarily suspend a rule a single time, which was created in 1985 and subsequently upheld by the state supreme court in Martinez v. DIHLR.[24]

In upholding the constitutionality of the law empowering JCRAR to suspend a rule multiple times, the court explained that no party raised constitutional concerns with the holding or underlying principles in Martinez, which held that one three-month suspension was constitutionally permissible because of the safeguards put in place and the need for bicameralism and presentment to permanently suspend a rule. Here, the court held that if one three-month suspension is permissible, then surely a second suspension is permissible as well because, like in Martinez, the suspension would be temporary.[25]

3. Agency Deference

The court disposed of the plaintiffs’ challenge to the constitutionality of Act 369’s codification of the court’s holding in Tetra Tech in a few short sentences noting, “[g]iven our own decision that courts should not defer to the legal conclusions of an agency, a statute instructing agencies not to ask for such deference is facially constitutional.”[26]

B. Decision Striking Down Agency Guidance Document Provisions

Justice Kelly, joined by Justices R. Bradley, A. Bradley, and Dallet, wrote the majority opinion striking down most of Act 369’s guidance document provisions as a facially unconstitutional infringement on core executive branch powers.[27]According to the court, the executive branch’s authority to execute the law “encompasses determining what the law requires as well as applying it.”[28] The majority went on to find that guidance documents are not the law and do not have the force or effect of law and that therefore the executive branch has authority to issue guidance documents.

After determining that the creation of guidance documents is an executive power, the court next considered whether creation of guidance documents is a “core” executive power or a power “shared” with the legislature. The court determined it is a core executive power because (1) it is created by executive branch employees with executive branch authority, (2) it requires no legislative authority or personnel involvement, and (3) it does not affect what the law is, create policy or standards, or bind anyone or anything.[29] In other words, a guidance document is simply the executive saying what the law requires prior to executing it.[30]

Chief Justice Roggensack and Justices Hagedorn and Ziegler, in two different dissenting opinions, disagreed that the creation of guidance documents is a core executive power and that they do not, in practice, have the force of law. Chief Justice Roggensack’s dissent argued that while the execution of laws is a core executive power, the power to interpret laws is not, but is instead shared across all three branches of government. Interpretations of law, outside of court proceedings, are a shared constitutional function.[31] The Chief Justice further stated that guidance documents historically have been used by administrative agencies to circumvent rulemaking.[32] She explained that administrative agencies use guidance documents to avoid the procedural guardrails the legislature put on their delegations of legislative power.[33] Additionally, the Chief Justice argued that the legislature has a legitimate interest in providing these safeguards and that “Justice Kelly should not be so quick to dismiss the history that led to the enactment of [Act 369].”[34]

Justice Hagedorn, joined by Justice Zeigler, agreed with the Chief Justice that the creation of guidance documents is a shared power. Justice Hagedorn further argued that the legislature has long regulated the creation of certain executive branch communications on the law and that regulating the manner in which guidance documents are created does not regulate how the executive branch interprets the law but how that interpretation is documented.[35] According to Justice Hagedorn:

The majority’s abstract approach misses what’s actually going on here. The legislature is not invading the executive’s ability to read the law or think about the law when it regulates how agencies officially communicate to the public about what the law is and where in the statutes the law may be found.[36]

Rather than protect the separation of powers, Justice Hagedorn argued, the majority’s opinion undermines it “by removing power the people gave to the legislature through their constitution.”[37]


In SEIU, the Wisconsin Supreme Court continued its trend of upholding laws increasing legislative oversight of administrative agencies and legislative interaction with the executive branch. The court found that the legislature has a legitimate role in conducting and settling litigation that affects its institutional interests, the authority to temporarily suspend administrative rules, and the warrant to forbid judicial deference to agency interpretations. Even in striking down the legislature’s attempt to exert control over the publication of guidance documents, the court held that guidance documents do not have “the force or effect of law,” further reinforcing past decisions that agencies can only create law through rulemaking, a process heavily influenced by the legislature. While several minor contested provisions of the laws were not addressed by the court and remanded to the circuit court, this decision effectively ends the “extraordinary session” litigation that has been before Wisconsin courts for the past two and a half years.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We do invite responses from our readers. To join the debate, please email us at

[1] Ch. 227, Wis. Stats.

[2] Service Employees Int’l Union (SEIU) v. Vos, 2020 WI 67 (2020).

[3] Justice Kelly was subsequently defeated in his election and replaced on the bench by Justice Jill Karofsky.

[4] Wis. Stat. § 227.26(2)(im).

[5] Wis. Stat. § 227.10(2)(g) (codifying Tetra Tech EC Inc. v. Wisconsin Dep’t of Revenue, [citation]).

[6] Wis. Stat. § 227.01(3m).

[7] Wis. Stat. § 227.112.

[8] Wis. Stat. § 165.25(1m).

[9] Wis. Stat. §§ 165.08(1); 165.25(6)(a)1.

[10] Wis. Stat. §§ 165.08(1); 165.25(6)(a)1.

[11] A facial challenge is when a party seeks to strike down a law in its entirety as compared to an as-applied challenge which seeks to strike down a law “as applied to a given party or set of circumstances.” SEIU, 2020 WI at ¶ 4. The threshold for striking down a law in its entirety is high, as a party must show that “every single application of a challenged provision is unconstitutional.” Id.

[12] Id. at ¶ 31. See Wis. Const. art. IV, § 1 (“The legislative power shall be vested in a senate and assembly.”); id. art. V, § 1 (“The executive power shall be vested in a governor.”); id. art. VII, § 2 (“The judicial power of this state shall be vested in a unified court system.”).

[13] SEIU, 2020 WIat ¶ 32.

[14] Id. at ¶ 32.

[15] Id. at ¶ 34.

[16] Id. at ¶ 35.

[17] Id.

[18] Id.

[19] Id.

[20] Id. at ¶¶ 57-62.

[21] Id. at ¶ 63.

[22] Id. at ¶ 65.

[23] Id. at¶¶ 67-71.

[24] Martinez v. DIHLR, 165 Wis. 2d 687, 699-700, 478 N.W.2d 582 (Wis. 1992).

[25] SEIU, 2020 WIat ¶ 82.

[26] Id. at ¶ 84.

[27] Id. at ¶ 88 (The court did not strike down the provisions that defined guidance documents and judicial review of guidance documents. Wis. Stat. §§ 227.01(3m), 227.40.).

[28] Id. at ¶ 99.

[29] Id. at ¶ 105.

[30] Id. at ¶¶ 96-97.

[31] Id. at ¶ 139 (citing Tetra Tech EC, Inc. v. DOR, 2018 WI 75, ¶¶ 140-41, 382 Wis. 2d 496, 914 N.W.2d 21 (Ziegler, J., concurring)).

[32] Id. at ¶¶ 142-43 (citing Andrew C. Cook, Extraordinary Session Laws: New Limits on Governor and Attorney General, 92 Wis. Law. 26, 27 (2019)).

[33] Id. at ¶¶ 144-47.

[34] Id. at ¶ 145.

[35] Id. at ¶¶ 201-06.

[36] Id. at ¶ 204.

[37] Id. at ¶ 212.

Foster v. Commissioner of Correction

December 17, 2020

Docket Watch 2020

By Kymberlee Stapleton

Correctional facilities across the United States house and employ large numbers of people. Keeping these people safe during the COVID-19 pandemic has been a tremendous challenge. In April 2020, several incarcerated inmates and individuals civilly committed for substance abuse treatment filed a class action lawsuit in a Massachusetts court that alleged their conditions of confinement posed an unreasonable risk of COVID-19 exposure.[1] They claimed that the failure to reduce the number of confined individuals to allow for greater social distancing amounted to cruel and unusual punishment and violated their substantive due process rights.[2]

In Foster v. Commissioner of Correction (“Foster I), the Supreme Judicial Court of Massachusetts addressed the plaintiffs’ motion for a preliminary injunction that sought to require the Department of Correction (“DOC”) to take immediate steps to reduce the number of detained individuals while the suit proceeded to trial. To prevail, the plaintiffs would have to show a likelihood of success on the merits of their underlying claims.

The court first examined class certification and narrowed the plaintiffs into two smaller subgroups: (1) medically vulnerable inmates, and (2) individuals civilly committed for substance abuse treatment.[3] The court then addressed the constitutional claims of the two subclasses separately because only individuals being “punished” can assert claims of cruel and unusual punishment under the Eighth Amendment. Because the civilly committed individuals were not being punished, their claims were limited to substantive due process violations.[4]

Eighth Amendment Claims

The medically vulnerable inmate plaintiffs argued that their conditions of confinement and the failure to expedite the release of inmates violated their constitutional rights.[5] To succeed on this claim, the plaintiffs were required to satisfy a two-part test. The first element required an objective showing that their living conditions “pose a ‘substantial risk of serious harm.’”[6] The second element was subjective, requiring a showing that “prison officials acted or failed to act with deliberate indifference.”[7] The court found that the plaintiffs met the first element, but failed the second element.

Almost immediately after the governor declared a state of emergency in Massachusetts, the DOC implemented policies that included social distancing in all of its facilities, the elimination of almost all group programming and recreation time, increased sanitation, distribution of cleaning supplies and masks to all inmates and staff, lockdowns prohibiting access into the facilities by visitors, a mandatory two week quarantine for all new inmates, daily health screening for all staff, and widespread testing for all staff and inmates.[8]

The court acknowledged that despite these policies, it may not be feasible to maintain sufficient physical distancing in all instances, and thus the increased risk of contracting COVID-19 while incarcerated poses an objectively substantial health risk.[9] However, because prison officials took significant steps to reduce exposure to and protect inmates from the spread of COVID-19, it was unlikely the plaintiffs would be able to establish that the DOC acted with subjective “deliberate indifference.”[10]

Substantive Due Process Claims

In Massachusetts, individuals can be civilly committed to a secure facility for substance abuse treatment if they pose a danger to themselves or others.[11]  The purpose of inpatient substance abuse treatment is “to promote the health and safety of the individual committed[.]”[12] The second subclass of plaintiffs argued that civilly committing them during a pandemic violates their substantive due process rights under the federal and state constitutions. 

For such a claim to pass muster under the federal Constitution, a “reasonable relation” must exist between the “‘conditions and duration of confinement’” and “‘the purpose for which persons are committed.’”[13] Under this lenient standard, the government must simply show that confining an individual for treatment is reasonably related to the public safety needs of the state.[14] The state constitution, however, mandates a strict level of judicial review. The statute must be “‘narrowly tailored to further a legitimate and compelling governmental interest and [be] the least restrictive means available to vindicate that interest.’”[15]

The court found that the need for substance abuse treatment has not diminished during the pandemic. It then concluded that on the record before it, the civil commitment statute satisfied both levels of scrutiny and that the plaintiffs did not show a likelihood of success on the merits of their substantive due process claims.

However, the court went on to use its supervisory authority to prohibit lower court judges from civilly committing individuals during the state of emergency absent a written or oral finding on the record that the danger of an individual’s substance abuse disorder outweighs the risk of COVID-19 exposure and transmission. Committed individuals were given the ability to seek reconsideration of their commitment orders under this mandate.[16]

The court denied the motion for preliminary injunction and transferred the case to the Superior Court for a final adjudication on the merits. Chief Justice Ralph D. Gants wrote a concurring opinion, joined by two other justices, to emphasize that the DOC is doing its best to manage the COVID-19 crisis under the circumstances. Justice Gants wrote separately to highlight three points. First, he said more can be done to reduce the prison population, such as releasing inmates on home confinement, increasing parole release, and providing more opportunities for inmates to earn good time credit.[17] Second, he emphasized the need to plan beyond the current lockdown policies that, if left unaltered, could become Eighth Amendment violations if continued long term.[18] Finally, he urged the DOC to prepare for a “second wave.”[19]

The same day it decided Foster I, the court also decided two motions to dismiss filed by the governor and the chair of the parole board in Foster v. Commissioner of Correction (Foster II).[20] The plaintiffs alleged that both “fail[ed] to implement an effective mechanism to reduce the incarcerated population to a safe level. . .”[21] 

In regard to the governor, the plaintiffs claimed he was liable because he refused to utilize his executive authority to pardon and grant clemency, and they sought to compel him to use that plenary emergency power to order a reduction in the prison population. The court proclaimed that it “should tread lightly in telling any Governor when or how to exercise his or her powers.”[22] The court then found that the “failure to act” claims against the governor were not actionable and granted his motion to dismiss.

In regard to the parole board, the plaintiffs argued that the board made little effort to increase the use of medical parole or to modify the criteria for release to better streamline the parole process in light of the virus. The court concluded that the plaintiffs alleged facts that were sufficient to state a claim if proven and denied the parole board’s motion.[23]

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We do invite responses from our readers. To join the debate, please email us at

[1]Foster v. Comm’r of Correction, 146 N.E.3d 372, 378 (Mass. 2020).


[3]Id. at 388.

[4]Id. at 390.


[6]Id. at 391 (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)).

[7]Id. at 390-91.

[8]Id. at 394.

[9]Id. at 391-92.

[10]Id. at 395-96.

[11]Id. at 397-98; Mass. Gen. Laws ch. 123, § 35.

[12]Foster, 146 N.E.3d at 398.

[13]Id. at 397 (quoting Seling v. Young, 531 U.S. 250, 265 (2001)).

[14]Id. at 398.

[15]Id. (quoting Commonwealth v. Weston W., 455 Mass. 24, 35, 913 N.E.3d 832 (2009)).

[16]Id. at 401.

[17]Id. at 404 (Gants, J., concurring).

[18]Id. at 407-08.

[19]Id. at 408.

[20]Foster v. Comm’r of Correction, 146 N.E.3d 408 (Mass. 2020).

[21]Id. at 410.

[22]Id. at 412.

[23]Id. at 414.

Hawkins v. Wisconsin Elections Commission

December 17, 2020

Docket Watch 2020

By Andrew C. Cook

Wisconsin was one of the few swing states in 2016 and was considered a key battleground state again in 2020. In 2016, President Donald Trump carried Wisconsin by 22,748 votes. With such a razor-thin margin separating the top two presidential candidates, in 2020 the major parties were concerned about which candidates would qualify to appear on the general election ballot. Green Party candidate Jill Stein received 31,006 votes in Wisconsin in 2016.

On August 7, 2020, Allen Arnsten filed a complaint with the Wisconsin Elections Commission (Commission) challenging numerous signatures submitted by the Green Party presidential and vice presidential candidates. Specifically, the challenger alleged that the Green Party nominee for vice president, Angela Walker, listed an incorrect home address on her nomination forms that included 1,834 signatures filed with the Commission. Wisconsin law requires 2,000 valid signatures for nominees for president and vice president to be certified and placed on the ballot. The Green Party candidates filed a total of 3,966 signatures.

The Commission, a six-member board that includes three Democratic and three Republican commissioners, deadlocked 3-3 on whether the signatures were invalid, with the Democrats voting to strike the signatures and the Republicans approving the signatures.[1] The Republican commissioners noted during the hearing that Ms. Walker voluntarily notified the Commission of her recent move and that she sought guidance from the Commission on how to proceed. The Commission staff responded to Ms. Walker as follows:

If Ms. Walker has previously filed a declaration of candidacy [] with the Wisconsin Elections Commission, it can be amended to reflect the address change. Technically speaking, however, federal candidates are not required to list an address of their declaration of candidacy. So, if Ms. Walker chooses to list her address on her declaration of candidacy, she can include the most current one.[2]

On August 20, the Commission ultimately voted on a motion that 1) certified 1,789 signatures for the Green Party candidates and 2) stated that the Commission was deadlocked on the remaining 1,834 signatures that included Ms. Walker’s previous address. Based on this motion, the Commission staff notified the Green Party candidates that they were not certified and ordered that ballots be printed without the Green Party candidates appearing on the 2020 general election ballot.[3]

On September 3, 2020, two days after the Commission voted to confirm the presidential and vice presidential candidates that would appear on the ballot, the Green Party candidates filed a petition for leave to commence an original action[4] with the Wisconsin Supreme Court seeking to overturn the Commission’s actions.

Wisconsin Supreme Court Decision

In a 4-3 order issued on September 14, 2020, the Wisconsin Supreme Court upheld the Commission’s decision to exclude the Green Party candidates from appearing on the ballot. The per curiam majority opinion was not signed by any of the justices, but since Chief Justice Patience Roggensack and Justices Annette Ziegler and Rebecca Bradley wrote dissenting opinions, it is clear that Justices Ann Walsh Bradley, Rebecca Dallet, Jill Karofsky, and Brian Hagedorn were in the majority.

The majority’s decision to “exercise [its] discretion to deny the petition for leave to commence an original action” turned on its determination that the Green Party waited too long to file its lawsuit.[5] According to the majority, “[a]lthough we do not render any decision on whether the respondents have proven that the doctrine of laches applies,” the Green Party candidates “delayed in seeking relief in a situation with very short deadlines,” and therefore it was “too late to grant petitioners any form of relief that would be feasible and that would not cause confusion and undue damage to Wisconsin electors.”[6] The majority’s order did not address whether the challenged signatures were lawful or whether the Commission properly excluded the Green Party candidates.

Dissenting Opinions

In dissenting opinions, Chief Justice Roggensack and Justices Ziegler and Rebecca Bradley rebuked the majority’s decision. Chief Justice Roggensack opined that the “people of Wisconsin have the right to know the acts of the Commission that took the right of ballot access away from candidates of a small independent party” which “followed all the requirements of Wisconsin law necessary for ballot access.”[7]

Justice Ziegler in her dissenting opinion criticized the Commission for failing to follow Wisconsin law and procedures. According to Justice Ziegler, under Wisconsin law, when a motion of the Commission deadlocks 3-3, the motion fails and no action should be taken.[8] On multiple votes, the three Democratic commissioners voted to exclude 1,824 signatures submitted by the Green Party candidates, while the three Republican commissioners voted to approve the signatures. Therefore, the 1,824 signatures should have been approved, as the Commission had no authority to remove the signatures absent “an affirmative vote of at least two-thirds of the members.”[9] Had the 1,824 signatures been included, Justice Ziegler continued, the Green Party candidates would have easily met the 2,000 signature threshold and been placed on the ballot. And “[n]ot only did the Green Party candidates have a right to appear on the ballot, but the Commission had a statutory obligation to place them on the ballot, which the Commission violated.”[10] The dissent further argued that the “Commission did not just fail the Green Party candidates . . . it failed the people of Wisconsin.”[11]

Finally, Justice Ziegler’s dissent took aim at the majority’s “too late” analysis, noting that the majority did not apply a legal analysis of the laches doctrine, which was argued as a defense by the Commission. According to the dissent, the reason the majority did not address laches is that the Commission would have been unable to meet the three elements of the defense needed to bar a claim under Wisconsin law: 1) a party unreasonably delays in bringing a claim; 2) a second party lacks knowledge that the first party would raise that claim; and 3) the second party is prejudiced by the delay.[12] Justice Ziegler’s opinion explained that, as to the first element, the Green Party filed a lawsuit with the Wisconsin Supreme Court two days after the Commission denied the presidential candidates access to the ballot.[13] As to the second element regarding the Commission’s knowledge of a potential lawsuit, the Green Party specifically announced it planned to file a lawsuit at the Commission hearing.[14] Additionally, during the public hearing, the three Republican commissioners explained they crafted the final motion in order to narrow the issues for a court when the Green Party files its lawsuit.[15] Finally, there was plenty of time to print and issue the ballots with the Green Party candidates well in advance of the election.[16]

In a third dissenting opinion, Justice Rebecca Bradley stated that in “dodging its responsibility to uphold the rule of law, the majority ratifies a grave threat to our republic, suppresses the votes of Wisconsin citizens, irreparably impairs the integrity of Wisconsin’s elections, and undermines the confidence of American citizens in the outcome of a presidential election.”[17]

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We do invite responses from our readers. To join the debate, please email us at

[1] Hawkins v. Wisconsin Elections Commission, et al., 2020 WI 75 (Sept. 14, 2020).

[2] Hawkins, 2020 WI at ¶ 37.

[3] Id. at ¶ 2.

[4] Emergency Petition, Hawkins v. Wisconsin Elections Commission, et al., 393 Wis.2d 629 (2020), available at

[5] Hawkins, 2020 WI at ¶ 5.

[6] Id.

[7] Id. at ¶ 14.

[8] Wis. Stat. § 5.05(1e) (“Any action by the commission … requires the affirmative vote of at least two-thirds of the members.”).

[9] Hawkins, 2020 WIat ¶ 40. 

[10] Id. ¶ 48.

[11] Id.

[12] Id. at ¶ 55.

[13] Id. at ¶ 58.

[14] Id. at ¶ 65.

[15] Id. at ¶ 41.

[16] Id. at ¶ 34 (“Both state and federal law allow for corrections to be made and dates to be adjusted when ballots are improper or the law is not followed . . . . The record before the court demonstrates that the errors can be corrected, yet our court stands silent.”).

[17] Id. at ¶ 86.

Pennsylvania Democratic Party v. Boockvar

December 17, 2020

Docket Watch 2020

By J. Christian Adams & Kaylan L. Phillips

Pennsylvania, like most states in 2020, has seen contested election litigation. In Pennsylvania Democratic Party v. Boockvar, the state supreme court determined that the county board of elections may accept mail-in ballots outside of their offices, including in unmanned drop-boxes; and that the deadline for mail-in and absentee ballots is extended by three days, even for ballots lacking a postmark.[1]

The case centered around Pennsylvania’s Act 77 of 2019, which authorized no-excuse mail-in voting for the first time in the Commonwealth.[2] The bill was signed into law in late October 2019,[3] before COVID-19 was a household name and a part of the debate about how elections should be conducted. Section 1301-D of Act 77 allows any Pennsylvania registrant who is not qualified to cast an absentee ballot under Pennsylvania law to be a “qualified mail-in elector.” Under this new law, a registrant must submit an Application for Mail-In Ballot.[4] The registrant’s county board of elections then processes the application and, if approved, mails the registrant a ballot. Included with the ballot are two envelopes so that the ballot may be placed in one envelope with only the words “Official Mail-In Ballot” on the front which is then placed in a larger envelope to be signed by the registrant attesting that he is qualified to vote by mail and has not already voted in the election.

It was unusual for the state’s high court to take this case so close to the election because of a long established principle that the rules of elections should not change too close to elections, but it did so due to the ongoing COVID-19 crisis. The petition for review was initially filed in an intermediate appellate court by the Pennsylvania Democratic Party, Democratic officials, and Democratic candidates in mid-July.[5] The petition sought relief against Secretary of the Commonwealth Kathy Boockvar and county election boards.[6] Multiple entities sought to intervene in the matter, including Trump for President, Inc. and the Pennsylvania GOP, as well as several groups such as Common Cause of Pennsylvania and the League of Women Voters of Pennsylvania.[7]  

In August, Secretary Boockvar asked the Pennsylvania Supreme Court to exercise “extraordinary jurisdiction” over the claims.[8] The Democratic Party did not object, and the Pennsylvania Supreme Court granted the request on September 1, 2020.[9] The Supreme Court also allowed the Pennsylvania GOP to intervene along with members of the Pennsylvania Senate and House of Representatives but denied the motions to intervene of other entities.[10]

The plaintiffs wanted two significant changes. First, the Democratic Party sought a declaration that county boards of election can utilize as many ballot “drop boxes” as they wish. Pennsylvania law states that mail-in ballots should be sent “by mail, postage prepaid, except where franked, or deliver[ed] [] in person to said county board of election.”[11] The Democratic Party and the Secretary advocated that this language must allow drop boxes in places designated by the county board.[12] The Pennsylvania GOP, however, argued that the General Assembly intended the ballots to be delivered to the office of the county board.[13]

The court found that the competing interpretations of state law were reasonable but sided with the Democratic Party and Secretary because their position “favors the fundamental right to vote and enfranchises, rather than disenfranchises, the electorate.”[14]

Second, the Democratic Party sought to extend Pennsylvania’s deadline for the receipt of ballots by seven days. Pennsylvania statute requires that ballots be received by 8:00 pm on Election Day.[15] The Secretary reversed her previous position against any extension and consented to a 3-day extension for the receipt of ballots.[16] The court determined that the present circumstances qualify as a “natural disaster” and that “[i]t is beyond cavil” that there will be an extraordinary number of Pennsylvanians seeking to vote by mail.[17] Additionally, the court expressed concern over the  United States Postal Service’s handling of the anticipated high volume of ballots.[18] For these reasons, the court found that it “can and should act to extend the received-by deadline for mail-in ballots to prevent the disenfranchisement of voters.”[19]  

The Democratic Party also sought a declaration that Pennsylvania’s requirement that poll watchers be appointed only to locations within the county in which they reside is constitutional.[20] The Secretary agreed with the Democratic Party. The court determined that the “requirement does not burden one’s constitutional voting rights” and that the legislature’s choice to require that poll watchers serve where they reside is reasonable in light of how Pennsylvania runs its elections.[21] Therefore, the court granted the requested relief.[22]

The Democratic Party also requested a mandate that county boards contact voters who submitted faulty ballots to allow an opportunity to cure as well as a declaration that ballots lacking a secrecy envelope must still be counted. As to the former, the court decided that such policy changes are best left up to the legislature.[23] As to the latter, the court determined that the secrecy envelope requirement is mandatory.[24]

Justice David Wecht joined the majority’s opinion in full and wrote a concurring opinion emphasizing that “the convergence of a once-in-a-century pandemic and unprecedented operational delays in United States Postal Service delivery capacity threatens to undermine the integrity of our general election, this force majeure necessitates relief.”[25]

Justice Thomas Saylor dissented as to the majority’s allowance of drop boxes and the 3-day extension for receipt of mail-in ballots. Justice Saylor expressed concern over the fact that “although the majority decision appears to be designed to accommodate only ballots actually mailed on Election Day or before, the majority does not so much as require a postmark. Particularly in combination with the allowance of drop boxes, this substantially increases the likelihood of confusion, as well as the possibility that votes will be cast after 8:00 p.m. on Election Day.”[26]

Justice Christine Donohue also wrote separately to state that while current circumstances support extending the deadline for receipt of mail-in ballots, such a decision should have been presented along with a sufficient showing of the existence of a constitutional injury. Justice Donohue constructed a chart of the election deadlines along with the USPS expectation of delivery for mail and concluded that “the deadline for requesting a ballot should be moved to Friday, October 23, 2020. . . .The legislative choice of Election Day at 8:00 p.m. should remain intact.”[27]

Editor’s Note: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the authors. We do invite responses from our readers. To join the debate, please email us at

At the time this article was published on November 5, a petition for full review of this case is currently pending at the U.S. Supreme Court. On September 22, 2020, Republican state officials filed an application for stay, but the state supreme court denied it on September 24. Four days later, two applications for stay were filed at the U.S. Supreme Court; the first came from Joseph Scarnati III and Jake Corman, president pro tempore and majority leader of the Pennsylvania Senate, and the second came from the Pennsylvania Republican Party. On October 19, the U.S. Supreme Court denied these applications 4-4 and let stand the state supreme court’s ruling. On October 24, a petition for certiorari was filed by the Republican Party of Pennsylvania at the U.S. Supreme Court, followed by an October 28 denial of motion to expedite consideration for certiorari issued by the Supreme Court. For more details, please visit

[1] Pa. Democratic Party v. Boockvar, No. 133 MM 2020, 2020 Pa. LEXIS 4872, at *88-90 (Sep. 17, 2020).

[2] 25 P.S. §§ 3150.11-3150.17.

[3] Press Release, Governor Tom Wolf, Governor Wolf Signs Historic Election Reform Bill Including New Mail-in Voting(Oct. 31, 2019), available at  

[4]  Pennsylvania Application for Mail-In Ballot,

[5] Boockvar, No. 133 MM 2020, at *1-2.

[6] Id. at *2.

[7] Id. at *6-7.

[8] See 42 Pa.C.S. § 726.

[9] Boockvar, No. 133 MM 2020, at *6.

[10] Id. at *6-7.

[11] 25 P.S. § 3150.16(a).

[12] Boockvar, No. 133 MM 2020, at *12-13.

[13] Id. at *16.

[14] Id. at *23.

[15] See 25 P.S. §§ 3146.6(c), 3150.16(c).

[16] Boockvar, No. 133 MM 2020, at *32-35.

[17] Id. at *47.

[18] Id. at *47-48.

[19] Id. at *48.

[20] Id. at *74-77.

[21] Id. at *87.

[22] Id. at *88.

[23] Id. at *56-57.

[24] Id. at *73-74.

[25] Id. at *94.

[26] Id. at *103.

[27] Id. at *112.

Berry v. City of Chicago

December 17, 2020

Docket Watch 2020

By Christopher Appel

In Berry v. City of Chicago,[1] the Illinois Supreme Court held that plaintiffs alleging an increased risk of injury as a result of a defendant’s negligence cannot recover medical monitoring damages in the absence of a present physical injury. The court’s decision to reject a recovery based on the mere possibility of future harm adhered to the traditional tort law requirement that a claimant must demonstrate an existing injury.

Berry involved a proposed class action against the City of Chicago on behalf of all city residents who resided in an area where the city had replaced water mains or meters between 2008 and the present.[2] The named plaintiffs asserted that the city negligently performed construction work to modernize and replace hundreds of miles of water lines made of lead, and negligently failed to warn residents about the risks of lead exposure related to such work. The action sought the establishment of “a trust fund . . . to pay for the medical monitoring” of all class members to diagnose potential incidences of lead poisoning.[3]

The trial court dismissed the plaintiffs’ complaint for failure to state a valid cause of action, but a mid-level appellate court reversed the decision.[4] The city appealed to the Illinois Supreme Court, which granted review and reversed the mid-level appellate court.

The state high court explained that the “plaintiffs’ allegation that they require ‘diagnostic medical testing’ is simply another way of saying they have been subjected to an increased risk of harm.”[5] The court determined that Illinois common law makes clear that “in a negligence action, an increased risk of harm is not an injury.”[6] Accordingly, the court concluded that a “plaintiff who suffers bodily harm caused by a negligent defendant may recover for an increased risk of future harm as an element of damages, but the plaintiff may not recover solely for the defendant’s creation of an increased risk of harm.”[7]

In rejecting the availability of a medical monitoring remedy without a physical injury, the Illinois Supreme Court aligned itself with the approach followed in many other states.[8] The court recognized that “there are practical reasons for requiring a showing of actual or realized harm before permitting recovery in tort.”[9] “Among other things,” the court explained, a present physical injury requirement “establishes a workable standard for judges and juries who must determine liability, protects court dockets from becoming clogged with comparatively unimportant or trivial claims, and reduces the threat of unlimited and unpredictable liability.”[10] The U.S. Supreme Court and other state high courts have similarly expressed these policy rationales in rejecting medical monitoring claims by the unimpaired.[11]

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We do invite responses from our readers. To join the debate, please email us at

[1] No. 124999, 2020 IL 124999 (Ill. Sept. 24, 2020).

[2] See id. at *1.

[3] Id. at *3 (quoting complaint).

[4] Id. at *1.

[5] Id. at *7.

[6] Id. (citing Restatement (Third) of Torts, Liability for Physical & Emotional Harm § 4, cmt. c (2010)).

[7] Id.

[8] States are divided on whether a claimant can recover medical monitoring damages in the absence of a present physical injury.  Of the states in which a state appellate court has decided the issue as a matter of common law, a slim majority have rejected such claims.  In most states, however, neither a state appellate court nor the legislative branch has decided the availability of medical monitoring absent a present physical injury.  See Mark A. Behrens & Christopher E. Appel, American Law Institute Proposes Controversial Medical Monitoring Rule in Final Part of Torts Restatement, IADC Defense Counsel Journal, Nov. 2020, available at (discussing courts’ treatment of medical monitoring claims by plaintiffs without a present physical injury and including a 50-state case law survey).

[9] Berry, 2020 IL 124999, at *7. 

[10] Id.

[11] See id. (citing Metro-North Commuter R.R. Co. v. Buckley, 521 U.S. 424 (1997), and Caronia v. Philip Morris USA, Inc., 5 N.E.3d 11 (N.Y. 2013)); see generally Victor E. Schwartz et al., Medical Monitoring – Should Tort Law Say Yes?, 34 Wake Forest L. Rev. 1057 (1999).

Thompson v. DeSantis

December 17, 2020

Docket Watch 2020

By Chloe C. Leedom

On September 11, 2020, the Supreme Court of Florida unanimously granted Florida State Representative Geraldine Thompson’s amended petition for a writ of mandamus ordering Florida Governor Ron DeSantis to appoint an eligible nominee to fill the vacancy left on Florida’s Supreme Court by Justice Robert Luck in November 2019.[1] After considering the governor’s response to an order to show cause for his delayed appointment,[2] the court ordered Governor DeSantis to fully comply by appointing an eligible justice to the court no later than September 14, 2020.[3]

Governor DeSantis had announced on May 26, 2020, that he would choose Judge Renatha Francis to fill the seat—one of seven people preapproved by the Judicial Nominating Commission (“JNC”).[4] She currently serves on the Fifteenth Judicial Circuit in Palm Beach County, Florida.[5]

Judge Francis has been a member of the Florida Bar since September 24, 2010. The Florida Constitution requires ten years of Florida Bar membership before a jurist is eligible to serve on the state supreme court.[6] When Governor DeSantis announced his choice on May 26, Judge Francis was four months shy of the ten-year requirement.[7] Representative Thompson sought relief against Supreme Court JNC Chair Daniel Nordby and Governor DeSantis in their official capacities.[8] The factual basis for the petition was that, on the date of her appointment, Judge Francis had not been a member of the Florida Bar for the preceding ten years.[9]

The court held that the bar eligibility requirement “attaches at the time of appointment,” instead of when the appointee assumes the duties of the office.[10] Thus, the governor argued that what happened on May 26 was merely an “announcement” and that the petitioner was calculatingly adhering to formalism.[11] The court was not convinced that the May 26 press conference was merely an announcement and instead held that it was an appointment, noting that the governor had asserted, in response to the initial petition, that “Governor DeSantis completed his legal duty by appointing Judge Francis . . . to the Florida Supreme Court on May 26, 2020.”[12] The court also criticized the governor because the Florida Constitution’s sixty-day deadline to fill the vacancy expired months prior to when the court stepped in.[13] Moreover, the court acknowledged its penchant for formalism and responded with a quotation from the late Justice Antonin Scalia, who said that “formalism . . . is what makes a government a government of laws and not of men.”[14]

On September 14, 2020, in compliance with the order, Governor DeSantis named Judge Jamie Grosshans to the Florida Supreme Court.[15] Judge Grosshans was serving on Florida’s Fifth District Court of Appeal, where she was appointed in 2018, and she was previously a judge on the Ninth Judicial Circuit in Orange County, Florida.[16]

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We do invite responses from our readers. To join the debate, please email us at

[1] Thompson v. DeSantis (Thompson I), No. SC20-985, slip op at 1 (Fla. Aug. 27, 2020), (Thompson II) No. SC20-985, slip op. at 1 (Fla. Sept. 8, 2020) reh’g denied, (Thompson III) SC20-985, slip op (Fla. Sept. 11, 2020) mandamus granted.

[2] Id. at 2.

[3] Id. at 2, 3.

[4] Brief for Respondents at 1, No. SC20-985, (Fla. Aug. 3, 2020). Florida precedent requires the governor to choose from a list of nominees selected by the commission. See Pleus v. Crist, 14 So. 3d 941 (Fla. 2009).

[5] Id.

[6] Fla. Const. art. V, § 8.

[7] Anthony Man & Gray Rohrer, Renatha Francis Withdraws, Hours After Supreme Court Invalidates Her Appointment and Orders DeSantis to Pick a New Justice, Sun Sentinel (Sept. 11, 2020, 3:00 PM),

[8] Thompson I, No. SC20-985, slip op. at 2 (Fla. Aug. 27, 2020).

[9] Id.

[10] Governor’s Response to the Court’s Order to Show Cause Why Petitioner’s Amended Petition Should not be Granted, No. SC20-985, at 10 (Fla. Sept. 9, 2020).

[11] Governor’s Response in Opposition to Motion on Rehearing, No. SC20-985, at 12 (Sept. 4. 2020).

[12] Thompson I, No. SC20-985, slip op. at 1 (Fla. Aug. 27, 2020); Id. at 2 n. 1.

[13] Id. at 2.

[14] Thompson I, No. SC20-985, slip op. at 2 (Fla. Aug. 27, 2020) (quoting Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 25 (1997).

[15] Florida Supreme Court, (last visited Oct. 18, 2020).

[16] Id.

McClay v. Airport Management Services, LLC

December 17, 2020

Docket Watch 2020

By Mark A. Behrens

In McClay v. Airport Management Services, LLC,[1] the Tennessee Supreme Court upheld the state’s $750,000 cap on noneconomic damages in personal injury cases ($1 million for “catastrophic loss or injury”).[2] The court, answering certified questions from the United States District Court for the Middle District of Tennessee, concluded that the cap satisfies the Tennessee Constitution’s right to a trial by jury, separation of powers, and equal protection provisions.

Plaintiff Jodi McClay, a California resident, brought suit against the defendant, an operator of a retail store at the Nashville International Airport, after a wooden panel in the store fell and struck her foot. Following a trial, the jury returned a verdict for the plaintiff and awarded $444,500 for future medical expenses and $930,000 for noneconomic damages.[3]

The Tennessee Supreme Court, in an opinion written by Chief Justice Jeffrey Bivins, first addressed the legislature’s authority to weigh competing public and private interests and to legislatively alter the common law. The court noted that the legislature had altered common law causes of action and available remedies on numerous occasions, citing several examples. The court said that “one could view the statutory cap on noneconomic damages as a limitation on the available remedy for certain causes of action, or as an abrogation of causes of action for claims exceeding the statutory limit.”[4] “Under either view,” the court added, “the General Assembly was within its legislative authority to alter the common law by enacting the statutory cap on noneconomic damages.”[5]

The court concluded that the cap does not violate the Tennessee Constitution’s right to a trial by jury. The court said that the right to jury trial is satisfied “when an unbiased and impartial jury makes a factual determination regarding the amount of noneconomic damages, if any, sustained by the plaintiff.”[6] Once the jury satisfies that role, the trial judge “then applies, as a matter of law determined by the legislature, the statutory cap on noneconomic damages in entering the final judgment.”[7] The right to a jury trial “does not entitle a plaintiff to any particular cause of action or any particular remedy.”[8] The court found “persuasive the reasoning from many [other state supreme courts] that similarly concluded that statutory caps on damages do not violate a plaintiff’s right trial by jury.”[9]

In a significant footnote, the court repudiated a 2019 decision by the federal Sixth Circuit Court of Appeals predicting that the Tennessee Supreme Court would find the state’s punitive damages cap to violate the right to jury trial, and therefore holding that the cap violated the state’s constitution.[10] The court found the Sixth Circuit’s reasoning “unpersuasive” and criticized the Sixth Circuit’s failure to certify that question of state law, while noting that the punitive damages cap was not at issue in McClay.[11]

Next, the Tennessee Supreme Court held that the statutory cap does not violate the separation of powers doctrine. The court explained that the cap is a substantive change in the law that “does not interfere with the judicial power of the courts to interpret and apply law.”[12]

Lastly, the court rejected plaintiff’s assertion that the statutory cap violates equal protection by discriminating against women.[13] The court said that Equal Protection Clause of the United States and Tennessee Constitutions “does not provide for disparate impact claims.”[14] To prove a constitutional violation, the plaintiff would have to show that the statutory cap was enacted with “discriminatory purpose.”[15] The court said there was “no allegation or evidence that the General Assembly acted with the purpose of discriminating against women in enacting the statutory cap on noneconomic damages.”[16] And, while the court did not examine the veracity of plaintiff’s disparate impact allegations because “a disparate impact, without evidence of discriminatory purpose, is not cognizable,”[17] the court noted the plaintiff did “little more than reference a 2004 law journal article regarding tort reform” and “provided no evidence that Tennessee’s statutory cap on noneconomic damages has a disparate impact.”[18]

Two justices wrote dissenting opinions arguing that they would hold that the statutory cap violates the right to a trial by jury. Justice Cornelia Clark claimed that the cap “usurps and replaces the jury’s constitutionally protected function of determining damages with an arbitrary ceiling,”[19] adopting the reasoning of the minority of high courts that have “struck down statutory damages caps as unconstitutional under constitutional provisions that use the term ‘inviolate’ to describe the jury trial right.”[20] Justice Clark’s dissent interprets Tennessee’s constitutional right to a jury trial as “divest[ing] the General Assembly of all authority to modify the common law right of trial by jury.”[21]

Putting “[l]egal analysis aside,”[22] Justice Lee’s dissent criticized the General Assembly for enacting a statute with which she disagrees based on policy. A concurring opinion said her dissent “cites statistics suitable for a legislative committee hearing and describes in vivid detail the injuries” to a plaintiff in an unrelated case “as an example of how the legislature’s policy choice will be unfair to . . . seriously injured claimants.”[23] Justice Lee’s dissent also cites holdings by the minority of courts in other states that have struck down statutory damages caps. The dissent concludes that the majority’s decision to uphold the statutory noneconomic damages cap “tells the citizens of Tennessee that their right to trial by jury and their right to be fairly compensated for noneconomic damages are trumped by the desire to limit the financial exposure of big corporations and insurance companies in civil negligence lawsuits.”[24]

Justice Holly Kirby filed a concurring opinion joining “fully” in the majority’s conclusion that Tennessee’s statutory noneconomic damages cap is constitutional.[25] The concurring opinion provides an insightful history of the right to jury trial at the time of British rule and in post-revolutionary America. The opinion explains that the right to jury trial was originally about “establishing the role of juries vis-à-vis judges.”[26] The right served as “a ‘restraint on judicial power’”[27] and “is not implicated by the legislature’s alteration of the remedies available to litigants.”[28]

Justice Kirby also criticized Justice Lee’s dissent for first strongly advocating for the statutory damages cap to be struck down, then describing “at length why the dissent disagrees with the legislature’s policy decision to enact it in the first place.”[29] This sequence, Justice Kirby said, “could give a misimpression that the two points are linked.”[30]

Justice Kirby said that courts must not “inquire into the motives of the General Assembly” or review a “statute’s wisdom, expediency, reasonableness, or desirability.”[31] “These are matters entrusted to the electorate,” he said, “not the courts.”[32] “Admittedly, this can sometimes be a hard principle to maintain,” Justice Kirby concluded, “[b]ut maintain it we must.”[33]

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We do invite responses from our readers. To join the debate, please email us at

[1] 596 S.W.3d 686 (Tenn. 2020).

[2] Tenn. Code Ann. § 29-39-102.

[3] McClay, 596 S.W.3d at 688.

[4] Id. at 691.

[5] Id.

[6] Id. at 693.

[7] Id. at 692.

[8] Id. at 691.

[9] Id. at 692 (citing Murphy v. Edmonds, 601 A.2d 102 (Md. 1992); Kirkland v. Blaine County Med. Ctr., 4 P.3d 1115 (Idaho 2000); Arbino v. Johnson & Johnson, 880 N.E.2d 420 (Ohio 2007); Evans ex rel. Kutch v. State, 56 P.3d 1046 (Alaska 2002); Gourley ex rel. Gourley v. Nebraska Methodist Health Sys., Inc., 663 N.W.2d 43 (Neb. 2003); Tam v. Eighth Jud. Dist. Court, 358 P.3d 234 (Nev. 2015); Judd ex rel. Montgomery v. Drezga, 103 P.3d 135 (Utah 2004); Wright v. Colleton County Sch. Dist., 391 S.E.2d 564 (S.C. 1990); Phillips v. Mirac, Inc., 685 N.W.2d 174 (Mich. 2004)).

[10] Id. at 693 n.6 (citing Lindenberg v. Jackson Nat’l Life Ins., 912 F.3d 348 (6th Cir. 2019), reh’g en banc denied, 919 F.3d 992 (6th Cir. 2019), cert. denied sub nom. Tennessee v. Lindenberg, 140 S. Ct. 635 (2019)).

[11] Id.

[12] Id. at 695.

[13] Id. at 696.

[14] Id. at 695.

[15] Id. at 696.

[16] Id.

[17] Id.

[18] Id. at n.7.

[19] Id. at 698 (Clark, J, dissenting).

[20] Id. at 698 & n.3 (citing Moore v. Mobile Infirmary Ass’n, 592 So. 2d 156 (Ala. 1991); Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 691 S.E.2d 218 (Ga. 2010); Hilburn v. Enerpipe. Ltd., 442 P.3d 509 (Kan. 2019); Watts v. Lester E. Cox Med. Ctrs., 376 S.W.3d 633 (Mo. 2012); Sofie v. Fibreboard Corp., 771 P.2d 711 (Wash. 1989), amended by 780 P.2d 260 (Wash. 1989)).

[21] Id. at 699 (Clark, J, dissenting) (emphasis in original).

[22] Id. at 705 (Lee, J, dissenting).

[23] Id. at 711-712 (Kirby, J., concurring).

[24] Id. at 709 (Lee, J, dissenting).

[25] Id. at 709 (Kirby, J., concurring).

[26] Id. at 711 (Kirby, J., concurring).

[27] Id. at 710 (Kirby, J., concurring) (quoting Stephan Landsman, The Civil Jury in America: Scenes from an Unappreciated History, 44 Hastings L.J. 579, 600 (1993)).

[28] Id. at 711 (Kirby, J., concurring).

[29] Id. at 712 (Kirby, J., concurring).

[30] Id. (Kirby, J., concurring)

[31] Id. (Kirby, J., concurring) (citation omitted).

[32] Id. (Kirby, J., concurring) (citation omitted).

[33] Id. (Kirby, J., concurring).

State v. Arevalo

December 17, 2020

Docket Watch 2020

By Jacob Huebert

People who want to challenge a state or federal law for violating their constitutional rights face an uphill battle, thanks in part to the “presumption of constitutionality”—a principle invented by judges under which legislation is presumed to be constitutional unless a party challenging it can prove otherwise. But a recent concurring opinion by Arizona Supreme Court Justice Clint Bolick argues that courts should discard that presumption because it unduly protects government power at the expense of individual rights. 

The case, State v. Arevalo, presented a state constitutional challenge to a state law that enhanced the sentence for the crime of “threatening or intimidating” based on a defendant’s membership in a criminal street gang.[1] The majority opinion invoked the “strong presumption in favor of a statute’s constitutionality” under which “the challenging party bears the burden of proving its unconstitutionality,” but nonetheless struck the law down for violating substantive due process under the Fourteenth Amendment and the Arizona Constitution.[2] The statute didn’t require any connection between the underlying crime of threatening or intimidating and a defendant’s gang membership—the crime could have nothing to do with the defendant’s gang membership, but the enhancement would still apply—so the court concluded that the statute impermissibly punished membership in itself.[3]

The decision is not unique inasmuch as the court simply applied the U.S. Supreme Court’s Scales v. United States, a 1961 case that struck down a statute criminalizing Communist Party membership,[4] and followed the example set by the Florida Supreme Court[5] and the Tennessee Court of Criminal Appeals[6] when they struck down similar sentence-enhancement statutes.[7]

But Justice Bolick’s concurrence—joined by retired Justice John Pelander, sitting by designation—is noteworthy. Bolick agrees with the majority’s reasoning but argues that the court should eliminate the presumption of constitutionality because it tips the scales of justice in the government’s favor and “is antithetical to the most fundamental of ideals: that our constitutions are intended primarily not to shelter government power, but to protect individual liberty.”[8]

Bolick rejects the idea that comity or respect for the other branches of government requires courts to presume that statutes are constitutional. Courts that apply the presumption might believe they are respecting the separation of powers, but the separation of powers only demands that judges not substitute their own policy judgments for those of the legislature; it doesn’t require judges to defer to the legislature on the legal question of whether a statute is constitutional.[9] He further argues that deferring to legislators on constitutionality actually defeats the purpose of the separation of powers: the protection of individual rights.[10] It also ignores the judiciary’s role in the separation of powers, which is to ensure that the political branches don’t exceed their constitutional authority. In particular, they must ensure that legislation favored by the majority does not oppress the minority. If courts defer to the legislature, they won’t fulfill that responsibility, and legislators will be the sole judges of their own laws’ constitutionality—something James Madison warned against in Federalist No. 10.[11]

Bolick acknowledges that his view runs contrary to longstanding precedents of both his own court and the U.S. Supreme Court.[12] But he observes that scholars have increasingly questioned the presumption of constitutionality, citing the work of Randy E. Barnett, F. Andrew Hessick, and the late Washington Supreme Court justice Robert F. Utter.[13] And he notes that three members of the Texas Supreme Court, led by then-Justice Don Willett (now a judge of the U.S. Court of Appeals for the Fifth Circuit), recently questioned excessive judicial deference to the legislature.[14] Now Justice Bolick’s opinion has drawn, and will draw, even more attention to this issue.[15]

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We do invite responses from our readers. To join the debate, please email us at

[1] State v. Arevalo, 470 P.3d 644 ¶ 1 (Ariz. 2020).

[2] Id. at ¶¶ 9, 11, 20 (citing U.S. Const. amend. XIV, § 1; Ariz. Const. Art. 2 § 4).

[3] Id. at ¶¶ 20, 27.

[4] Scales v. United States, 367 U.S. 203, 224-25 (1961).

[5] State v. O.C., 748 So.2d 945, 950 (Fla. 1999).

[6] State v. Bonds, 502 S.W.3d 118, 154-58 (Tenn. Crim. App. 2016).

[7] Arevalo, 470 P.3d 644 at ¶¶ 11-14, 16-21.

[8] Id. at ¶ 30 (Bolick, J., concurring).

[9] Id. at ¶¶ 33-40 (Bolick, J., concurring).

[10] Id. at ¶¶ 35-36 (Bolick, J., concurring).

[11] Id. at ¶¶ 37-39 (Bolick, J., concurring) (citing, inter alia, Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 179 (1803); The Federalist No. 10 at 27 (Richard Beeman ed., 2012) (James Madison)).

[12] Id. at ¶¶ 30-31, 46 (Bolick, J., concurring).

[13] Id. at ¶ 43 (Bolick, J., concurring) (citing Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty (2004); F. Andrew Hessick, Rethinking the Presumption of Constitutionality, 85 Notre Dame L. Rev. 1447 (2010); Robert F. Utter, Freedom and Diversity in a Federal System: Perspectives on State Constitutions and the Washington Declaration of Rights, 7 U. Puget Sound L. Rev. 491, 507 (1984)).

[14] Id. at ¶ 44 (Bolick, J., concurring) (citing Patel v. Tex. Dep’t of Licensing and Regulation, 469 S.W.3d 69, 93 (Tex. 2015) (Willett, J., concurring)).

[15] See, e.g., George F. Will, A Useful Litmus Test for the Next Supreme Court Justice, Wash. Post, Sept. 25, 2020, (citing Bolick’s concurrence and proposing rejection of the presumption of constitutionality as a litmus test for Supreme Court nominees); Eugene Volokh, Arizona Supreme Court Justice Clint Bolick, Writing Against the “Presumption of Constitutionality, Reason, Sept. 1, 2020, (reproducing the concurrence).

Frlekin v. Apple Inc.

December 17, 2020

Docket Watch 2020

By Jeremy B. Rosen

Shoplifting and theft costs U.S. retailers $48.9 billion each year, and 30 percent of all retail theft is committed by employees.[1] These sizable costs sap revenues for businesses, raise prices for consumers, and decrease wages and available jobs for workers. In response, many retailers require exit searches or bag checks of employees when they leave work. In Frlekin v. Apple Inc., the California Supreme Court resolved whether California law requires employers to compensate employees for time spent waiting for, and undergoing, such exit searches.[2]

Apple required store employees to undergo theft-prevention searches of their bags before leaving work.[3] Employees also had to show that any personal Apple technology devices, including iPhones, in their possession belonged to them.[4] These exit searches happened after clocking out and usually took five to twenty minutes (though some employees reported that, on the busiest days, it took up to 45 minutes to find an available supervisor and undergo a search).[5]

A class of retail employees sued Apple in federal court, alleging that Apple had violated a California law—Industrial Welfare Commission Wage Order 7[6]—requiring employers to compensate employees for all “hours worked.”[7] The Ninth Circuit requested the California Supreme Court’s guidance on the state law issue of whether exit searches were compensable under Wage Order 7 as “hours worked.”[8]

A unanimous California Supreme Court held that an employee’s time spent on the employer’s premises waiting for, and undergoing, mandatory exit searches of bags, packages, or personal technology—even those items brought to work purely for personal convenience—is compensable.[9]

The court’s analysis centered on interpreting Wage Order 7, which defines “hours worked” to include “the time during which an employee is subject to the control of an employer.”[10] Applying a “strictly textual analysis,” the court determined that Apple controlled its employees during exit searches in several ways: enforcing compliance with the policy under threat of discipline; confining employees to the premises until completion of the search; and compelling performance of multiple tasks, such as locating a manager, unzipping and opening bags, and removing Apple devices for inspection.[11]

The court rejected Apple’s argument that employees were not subject to Apple’s control since they were not required to bring a bag, package, or Apple device with them to work. Neither the text nor history of Wage Order 7 suggests that only mandatory activities are compensable.[12] Rather, the law requires compensation for “employer-controlled conduct,” which is determined by several factors including “the location of the activity, the degree of the employer’s control, whether the activity primarily benefits the employee or employer, and whether the activity is enforced through disciplinary measures.”[13] According to the court, each factor favored compensating the employees in this case.[14] 

What’s more, the court reasoned that the exit searches were required “as a practical matter.”[15] In ordinary life, most people carry valuables and personal items in a bag, purse, or satchel. Likewise, having a cell phone is one of the “practical necessities of modern life.”[16] Thus, the court explained that, though bringing such items to work was “not ‘required’ in a strict, formal sense, many employees may feel that they have little true choice when it comes to the search policy, especially given that the policy applies day in and day out.”[17]

In the end, the court held that since employees were “subject to Apple’s control while awaiting, and during, Apple’s exit searches,” Wage Order 7 required Apple to compensate those employees for their time.[18]

Importantly, the court declined to limit Frlekin to prospective application. According to the court, the decision did not upset settled law, and neither fairness nor public policy concerns displaced the traditional rule that judicial opinions apply retroactively.[19] This retroactivitycould expose many retailers in California to significant lawsuits and liability for using similar anti-theft practices in the past.

Applying the California Supreme Court’s new guidance, the Ninth Circuit held that summary judgment must be granted to the plaintiffs who had indisputably not received wages for the time spent waiting for and during the exit searches.[20] The Ninth Circuit then remanded the case back to the federal district court to determine what remedy to afford to each individual in the class.[21]

Frlekin is especially noteworthy because it makes California the outlier relative to both federal law and the laws of several other states. The United States Supreme Court has held that time spent undergoing similar security screenings was not compensable under the Fair Labor Standards Act.[22] And it appears most other states to consider the same question have nearly identical rules.[23]

Note from the Editor: The author, Mr. Rosen, filed an amicus brief in this case. The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the authors. We do invite responses from our readers. To join the debate, please email us at

[1] Nat. Retail Fed’n, 2017 National Retail Security Survey (2017),

[2] Frlekin v. Apple Inc., 8 Cal. 5th 1038 (2020), reh’g denied (May 13, 2020).

[3] Id. at 1043.

[4] Id.

[5] Id. at 1044.

[6] Cal. Code Regs. tit. 8, § 11070(2)(G).

[7] Frlekin, 8 Cal. 5th at 1042, 1044.

[8] Id. at 1045 (citing Frlekin v. Apple, Inc., 870 F.3d 867, 869 (9th Cir. 2017)).

[9] Id. at 1042.

[10] Id. at 1046-47 (emphasis added).

[11] Id. at 1047.

[12] Id. at 1048-49.

[13] Id. at 1056.

[14] Id.

[15] Id. at 1054.

[16] Id. at 1055 (citation omitted).

[17] Id. at 1054.

[18] Id. at 1056-57.

[19] Id. at 1057.

[20] Frlekin v. Apple, Inc., No. 15-17382, 2020 WL 5225699, at *4 (9th Cir. Sept. 2, 2020).

[21] Id.

[22] Integrity Staffing Solutions, Inc. v. Busk, 135 S. Ct. 513, 515 (2014).

[23] See In re, Inc., Fulfillment Center Fair Labor Standards Act (FLSA) and Wage and Hour Litigation, 261 F. Supp. 3d 789, 793, 796 (W.D. Ky. 2017) (Nevada and Arizona law); UPS Supply Chain Solutions, Inc. v. Hughes, No. 2014-CA-001496-ME, 2018 WL 1980775, at *7 (Ky. Ct. App., Apr. 27, 2018) (Kentucky law); Cinadr v. KBR, Inc., No. 3:11-cv-00010, 2013 WL 12097950, at *7 (S.D. Iowa, Feb. 15, 2013) (Iowa law); Sleiman v. DHL Express, No. 09-0414, 2009 WL 1152187, at *6 (E.D. Pa., Apr. 27, 2009) (Pennsylvania law).

In Re State of Texas

December 17, 2020

Docket Watch 2020

By Cory Liu

In In re State of Texas, the Texas Supreme Court held that a voter’s lack of COVID-19 immunity, without more, does not qualify as a “disability” for an application to vote by mail under Texas Election Code § 82.002.

In Texas, voters are generally required to vote in person. Voting by mail is permitted in only five specific circumstances: (1) absence from the county of residence;[1] (2) disability;[2] (3) old age;[3] (4) confinement in jail;[4] and (5) participation in an address confidentiality program.[5]

On March 7, 2020, the Texas Democratic Party, its Chairman, and two voters filed a lawsuit in the Travis County District Court against the Travis County Clerk seeking a declaration that “any voter who believes social distancing is necessary to hinder the spread of the [COVID-19] virus” has a “disability” that authorizes voting by mail under Texas Election Code § 82.002.[6] The State of Texas and several advocacy groups intervened in the lawsuit.[7]

On April 17, the district court issued a temporary injunction declaring that any voter without COVID-19 immunity is entitled to vote by mail under Texas Election Code § 82.002.[8] After the court of appeals allowed the district court to enforce its injunction, the State of Texas filed a petition for a writ of mandamus in the Texas Supreme Court. The petition asked the court to compel officials in various counties to reject requests for mail-in ballots based solely on the claim that a generalized risk of contracting COVID-19 was a “disability” under Texas Election Code § 82.002.

Just two weeks after the petition was filed, Chief Justice Hecht delivered an opinion for the majority of the court. Justices Green, Guzman, Lehrmann, Devine, Blacklock, and Busby joined the opinion. The court began with the text of Texas Election Code § 82.002, which states that a voter is entitled to vote on the basis of “disability” if “the voter has a sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of needing personal assistance or of injuring the voter’s health.” A voter who is concerned about the risk of a COVID-19 infection while voting obviously does not have “a sickness.” Therefore, the court focused its analysis on the question of whether a lack of COVID-19 immunity is a “physical condition.”

The court interpreted the word “condition” to mean to an “abnormality,” such as a heart condition.[9] That interpretation is in accord with the Texas Legislature’s use of the word “disability” in Texas Election Code § 82.002, which the court interpreted as referring to an “incapacity.” Voters who lack COVID-19 immunity have neither a physical abnormality nor an incapacity.[10] Therefore, the majority held that a voter is not entitled to vote by mail under Texas Election Code § 82.002 based purely on a lack of COVID-19 immunity.

Having clarified the law, the court declined to issue a writ of mandamus. Mandamus is a discretionary remedy, and the court sought to give county officials an opportunity to “follow the guidance” that it had just provided in its opinion.

Justice Boyd and Justice Bland both concurred in the judgment only. Each wrote separate opinions.

Justice Boyd argued that “physical condition” should be construed more broadly as “a bodily state of being that limits, restricts, or reduces a person’s abilities.”[11] He believed that a lack of COVID-19 immunity could, in some instances, allow a person to vote by mail, depending on “innumerable factors, including the nature of the person’s sickness or physical condition, the person’s health history, the nature and level of the risk that in-person voting would pose in light of the particular sickness or physical condition, the adequacy of safety and sanitation measures implemented at and near the polling station to reduce that risk, and the level of caution the voter exercises.”[12] Justice Boyd argued for a case-by-case approach that turns on whether the facts of a particular voter’s situation demonstrate that in-person voting poses a “likelihood” of “injuring the voter’s health” under Texas Election Code § 82.002.[13]

Justice Bland would have construed “physical condition” even more broadly as referring to a person’s “state of health or physical fitness.”[14] Like Justice Boyd, she too argued for a case-by-case approach based on each voter’s particular situation, focusing on the “likelihood” of injury.[15] Justice Bland went out of her way to emphasize that county officials did “not have any authority to police” voters’ personal determinations about whether Texas Election Code § 82.002 applied to them.[16] She explained that the “Legislature left it to the voter” to determine the law’s applicability, and she cautioned the State of Texas that “the possibility of fraud does not allow for the disenfranchisement of eligible voters.”[17]

Three months after the Texas Supreme Court’s decision in In re State of Texas, the Harris County District Clerk announced his intention to send more than 2 million unsolicited applications for mail-in ballots to all registered voters. The State of Texas is now back at the state high court with a petition for a writ of mandamus (Case No. 20-0715). On September 15, the court ordered the Harris County District Clerk “not to send or cause to be sent any unsolicited mail-in ballot applications pending disposition of the State’s appeal to the Court of Appeals and any proceedings in this Court, and until further order of this court.” The State’s mandamus petition was still pending at the time this article was published.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We do invite responses from our readers. To join the debate, please email us at

[1] Tex. Elec. Code § 82.001.

[2] Id. § 82.002.

[3] Id. § 82.003.

[4] Id. § 82.004.

[5] Id. § 82.007.

[6] In re State of Texas, No. 20-0394, slip op. at 4 (Tex. May 27, 2020).

[7] Id. at 5.

[8] Id.

[9] Id. at 20.

[10] Id. at 21.

[11] In re State of Texas, No. 20-0394, Opinion of Justice Boyd at 5 (Tex. May 27, 2020).

[12] Id. at 7.

[13] Id. at 7–8.

[14] In re State of Texas, No. 20-0394, Opinion of Justice Bland at 4 (Tex. May 27, 2020).

[15] Id. at 6–8.

[16] Id. at 9.

[17] Id. at 9.