Open Meetings/Public Records Apply to Quasi-Governmental Corporations
Supreme Court Decision includes (at least some) Economic
Development Corporations
On Friday, July 12, the Wisconsin Supreme Court handed
down its decision in State of Wisconsin v. Beaver Dam Area Economic Development
Corporation, et al. in
which it determined that the
Beaver Dam Area Economic Development Corporation (BDADC) is a
“quasi-governmental” corporation subject to Wisconsin’s open
meetings and public records laws.
The Court, however, provided minimal guidance to local economic development
entities by declaring that a determination of whether or not an entity is a
“quasi-governmental” corporation requires a case-by-case analysis.
Rhode Island Supreme Court Overturns Verdict against Lead Paint Companies
On July 1, 2008, the Rhode Island Supreme Court issued a decision ruling
that the trial court should have dismissed a nuisance suit against lead
paint pigment manufacturers who had been sued by the state under a nuisance
theory.
The Court held that under no set of circumstances could the facts pled in
the complaint rise to a public nuisance. The court also opined that
causation is a basic requirement in any public nuisance action, consistent
with the law of torts, generally and that there was no allegation that the
defendants had control of the lead pigment at the time it caused injury.
Wisconsin Supreme Court Finds Software System
Not Subject to
Tax
The Majority opinion in Wisconsin Dept of Revenue v. Menasha Corporation concluded that the
Tax Appeals Commission’s interpretation of statutes is entitled to “due
weight deference” and its interpretation of administrative rules is entitled
to “controlling weight deference” and is not bound to defer to the
Department of Revenue (DOR).
Based on the “controlling weight
deference,” the court concluded the Tax Appeals Commission’s interpretation
of the rule was reasonable when it determined the Menasha software system
was custom and, thereby, not subject to sales and use tax.
Justice Ziegler opined that the decision
has great import to the average taxpayer who is entitled to a fair hearing
before a neutral tribunal when that person believes that he or she has been
taxed incorrectly by the DOR. Although subject to judicial review, the Tax
Appeals Commission is the final authority for determining questions of law
and fact under the tax code.
This was a 4 (Justices Ziegler, Prosser,
Roggensack and Crooks) to 3 (Justices Abrahamson, Bradley and Butler)
decision with concurring and dissenting opinions filed.
While a victory for business and
individual taxpayers, the Legislative Fiscal Bureau has estimated that the
decision could cost the state nearly $300 million in refunds and diminished
sales tax collections between now and next June 30.
Global Warming Task Force Finalizes Recommendations
On Thursday, June 26, the Governor’s Task Force on Global Warming
approved on a 23-3 vote the”Revised
Strawman Proposal.” Co-chairs Roy Thilly and Tia Nelson developed the
strawman proposal to address several key issues on which the full Task Force
failed to reach a consensus.
The proposal sets targets to reduce greenhouse gas emissions to 2005 levels
by 2014, 22 percent below 2005 levels by 2022, and 75 percent by 2050. The
linchpin recommendation is for the establishment of a federal or regional
multi-sector cap and trade program. The proposal also includes
recommendations for a three- to four-fold increase in Wisconsin’s investment
in energy efficiency. Changes to the state’s renewable portfolio standard
would require utilities to produce 10 percent of their electricity from
renewable sources by 2013, 20 percent by 2020, and 25 percent by 2025.
The recommendations of the Task Force regarding vehicle emissions included
an endorsement of California Vehicle Emission Standards (often referred to
as California Cars). Auto manufacturers assert that such a standard provides
no meaningful improvement over the federal Corporate Average Fuel Economy
(CAFE) program and will ultimately reduce the availability of certain
products in Wisconsin such as flex-fuel vehicles. (See Comments of the Alliance of Automobile Manufacturers.)
The report recommends developing a declining GHG emissions profile measured
in CO2-equivalent gram per unit of fuel energy (BTUs). The standard will be
measured on a life-cycle basis to include all emissions from fuel
consumption and production, including upstream emissions. A related issue is
how such a standard would limit the availability of Canadian crude oil
derived for oil sands. (See Comments by Flint Hills Resources.)
The group also recommended modifying Wisconsin’s nuclear moratorium law to
ensure that any nuclear plant must meet stringent waste disposal standards.
The Task Force co-chairs will now finalize the document and policy
templates, which will be added as appendices, and reconvene the Task Force
on July 24 for a final vote before the document is forwarded to Governor
Doyle. Most of the policies contained in the Task Force recommendations will
require legislative action. The Wisconsin Legislature will not convene until
January 2009.
Go to the following inks for related documents.
For further information on this issue, contact Amy Boyer or Bob Fassbender at the Hamilton Consulting Group.
Natural Resources Board Approves Mercury Reduction Rule
On June 25, the Natural Resources Board approved a mercury reduction
rule that would require 90 percent reductions in mercury emissions from
utilities operating in our state. The controversial rule is now undergoing
legislative review, with hearings expected before the respective
environmental committees.
Large coal-fired power plants must either meet a 90 percent mercury emission
reduction by January 1, 2015 or opt into a multi-pollutant alternative. The
multi-pollutant alternative, aimed at alleviating ozone and particulate
matter pollution, requires the affected power plants to achieve nitrogen
oxides (NOx) and sulfur dioxide (SO2) reductions beyond those currently
required by federal and state regulations. Under the multi-pollutant
approach, an additional six years (2021) is allowed to achieve the 90
percent mercury emission reduction standard, with interim targets set at 70
percent (2015) and 80 percent (2018).
Beyond the aggressive mercury targets, the business community opposed using
the mercury rule as a sort of Trojan horse for otherwise not needed ozone
and particulate matter mandates. For example, the rule marks the first time
since the 1990 Clean Air Act Amendments that ozone regulations would apply
outside the Southeast Wisconsin ozone nonattainment areas. Moreover, DNR has
repeatedly asserted the new ozone and particulate matter controls were not
needed to meet the federal air quality standards, making these requirements
unnecessary and unauthorized under state law.
For further information on this issue,
contact Bob Fassbender at the Hamilton Consulting Group.
Wisconsin Supreme Court Asked to Resolve Lemon Law Issues
On July 14, the U.S. Court of Appeals for the Seventh Circuit found in Bruce A. Tammi v. Porsche Cars North America, Inc. that Wisconsin’s
Lemon Law statute provides insufficient guidance on a key issue of damages.
While affirming the district court’s $266,160 verdict against Porsche, the
Court stayed a remand pending resolution of issues relating to pecuniary
loss. The issues certified for Wisconsin Supreme Court resolution involve
those situations in which a consumer exercises an option to purchase a lease
vehicle.
Gov. Doyle Issues Major Budget Policies for 2009-11
Gov. Jim Doyle has ordered state agencies to submit their 2009-11 budget
requests by September 15. Most state agencies were told to hold their
spending flat in each year of the upcoming budget and to prepare plans to
reduce all non-federally-funded state administration operations
appropriations by 10 percent.
See Doyle's letter to agency heads (including major budget policies):
http://www.doa.state.wi.us/docview.asp?docid=7110&locid=3
See 2009-11 Technical Budget Instructions:
http://www.doa.state.wi.us/docview.asp?docid=7141&locid=3
For more information on legislation of interest to CTCW
members, go to the CTCW Tracking Report. |
