Assembly Democrats Amend
Oil Franchise Tax
One of the major issues facing the Assembly Caucus prior to voting on the
budget this week was Gov. Jim Doyle’s oil franchise tax.
The original budget proposal sought to levy a new tax of up to 3 percent of
the “gross receipts” of motor vehicle fuel suppliers. The proposal also
contained a “no pass through” provision to prohibit the entities subject to
the tax from passing the cost of the tax down the distribution chain and,
ultimately, to consumers.
A
number of groups opposed the provision arguing that it was unconstitutional
and likely would be overturned in court, leaving the State without a proper
funding source and wasting hundreds of thousands of dollars in legal costs.
In addition, there was concern over the potential oil disruption, as oil
could simply be diverted to more profitable states which don’t have a law
preventing oil companies from passing on taxes.
The amendment proposed by Rep. Jennifer Shilling (D-La Crosse) allows oil
companies to pass on the tax at the pump, but caps how much the wholesaler
can pass at 4.48 cents a gallon. The new proposal generates roughly the same
amount of money – $260 million per year – as the original proposal for
transportation projects.
The proposal garnered support from a broad coalition of groups, including
the Cooperative Network Association, Wisconsin Petroleum Marketers &
Convenience Store Association, Wisconsin Retail Council, and among others.
For more information on this
provision, contact Pat Osborne at the Hamilton Consulting Group.
See also the Hamilton Consulting Fuel Tax Update.
Liability Provisions Pulled from
Budget
The Assembly Democrats on Wednesday voted in Caucus to remove the joint and
several liability, combined fault, and jury instructions provisions from the
budget. The motion was submitted by Reps. Mary Hubler (D-Rice Lake), Louis
Molepske (D-Stevens Point) and Rep. Fred Clark (D-Baraboo).
The three provisions removed from the budget include:
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Joint & Several Liability. Anyone
with equal or greater fault than the plaintiff would be held 100%
responsible (”jointly and severally liable”), even if only 1% at fault.
Existing law requires a person to be at least 51% at fault before he or
she can be held responsible for 100% of damages.
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Combined Fault. A person or business
that is less at fault than the plaintiff could be sued so long as the
“combined” fault of all persons sued is equal or greater than the
plaintiff. Existing law requires the plaintiff to be less at fault than
each defendant he or she is suing.
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Jury Instructions. The court would be
required to inform the jury how the jury’s findings on fault affect
responsibility for damages; that is, to allow the jury to adjust fault
determinations to maximize awards. Existing law limits a jury’s duty to
fact finding, consistent with over a hundred-year rule of jurisprudence.
The provisions provoked opposition from over 70 groups, including hospitals,
tourist attractions, cooperatives, farmers, local chambers of commerce,
taverns, timber producers, health care providers, retail stores and many
others.
The Joint Finance Committee amended the original joint and several liability
proposal from one percent to 20 percent. However, the amendment was written
in a way that allowed a plaintiff attorney to exclude certain parties
when calculating percentage of fault, which would have led to some
defendants as little as one percent at fault still responsible for 100
percent of the damages.
While the provisions have been removed in the Assembly, it remains to be
seen whether the Senate will reinsert the provisions.
Although the liability provisions were removed, the Assembly kept in place
the auto insurance provisions. These measures require drivers to purchase
higher minimum levels of auto insurance. In addition, the budget imposes a
new mandate that coverage limits from family vehicles not involved in an
accident be “stacked” on the coverage limit for the vehicle in an accident.
The practical effect of this is to double, triple, quadruple (depending on
the number of vehicles in the family) the coverage on each of the vehicles.
For more information on this
provision,
go to the WCJC website, or contact Andy Cook.
$18 Rental Car Tax to Fund Regional
Transit Authority
The Assembly Democrats adopted a proposal to the budget bill that would
increase the car rental tax to $18, from the current $2, in order to fund
the Kenosha-Racine-Milwaukee commuter rail line. The proposal was introduced
by Representatives Cory Mason (D-Racine), Bob Turner (D-Racine), and Peter
Barca (D-Kenosha), among others.
Under the proposal, $16 of the rental car tax would fund the
Kenosha-Racine-Milwaukee commuter rail project; $1 would go to City of
Racine BUS (Belle Urban System), and $1 to Kenosha Area Transit. The City of
Racine and the City of Kenosha would be required to generate local funds to
match the $1 tax.
The amendment further creates a Milwaukee Transit Authority, which gives the
Milwaukee County Board the authority to impose a 65 cent tax to pay for the
new entity. Fifty cents of the tax would go toward transit operations, while
15 cents would be used to offset police and fire costs in Milwaukee County.
For more information on this
provision,
contact Amy
Boyer.
Doyle Signs Bill Adding Punitive
Damages in Employment Discrimination Cases
Gov. Jim Doyle this week signed into law Senate Bill 20, sponsored by Sen. Dave Hansen (D-Green Bay), which adds
punitive and compensatory damages to employment discrimination cases brought
under Wisconsin’s Fair Employment Law.
Under current law, a person alleging employment discrimination may file a
complaint with the Department of Workforce Development (DWD). If a hearing
examiner finds a violation, the hearing examiner may require reinstatement
of the employee, force the employer to provide back pay, and pay attorney
fees and costs. Current law does not allow a plaintiff to seek punitive and
compensatory damages.
The bill signed by Gov. Doyle allows an employee discriminated against to
recover punitive and compensatory damages. The original bill did not set a
cap on the amount of the punitive damages a plaintiff could seek. In
addition, the original bill did not require the employee to provide evidence
proving that the employer acted maliciously or intended to discriminate.
The bill was amended to exempt employers with 15 or fewer employees and to
cap the amount of punitive damages based on the amount of employees:
An employer that employs 100 or fewer
employees for each working day in each of 20 or more calendar weeks in
the current preceding year, $50,000; 100 to 200 employees, $100,000; 200
to 500 employees, $200,000; 500 or more employees, $300,000.
Under the new law, if a DWD hearing examiner or the Labor and Industry
Review Commission (LIRC) affirms a finding that an employer has engaged in
discrimination, unfair genetic testing, or unfair honesty testing, the
employee may then bring an action in circuit court to recover punitive and
compensatory damages.
Advisory Group Releases Final
Recommendations
The Midwestern Greenhouse Gas Reduction Accord Advisory Group this week
released its finalized recommendations. Advisory Group members were appointed by the governors of the six states
that signed the Accord and assigned with the task of creating a
cap-and-trade program for the Midwest. The six states that signed the Accord
include Wisconsin, Illinois, Iowa, Michigan, Minnesota, and Kansas.
According to the Advisory Group, the final recommendations have not been
officially endorsed or approved by the individual governors. Instead, the
Advisory Group is submitting the final recommendations to the Midwestern
Governors asking for their support of the final recommendations. It is not
apparent, however, whether each of the governors will agree to support the
final recommendations.
Recently Introduced Legislation
Following are some recent bill introductions:
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Senate Bill 225 (Smoking Rooms in Lodging Establishments): Under
newly signed Wisconsin Act 12, establishments may no longer designate
smoking areas at indoor locations. This bill would authorize the owner
of a lodging establishment to designate up to 25 percent of the guest
rooms in the lodging establishment as guest rooms in which smoking is
permitted. If the lodging establishment has fewer than four guest rooms,
the owner may designate one guest room as a guest room in which smoking
is permitted. A companion bill, Assembly Bill 295, has also been introduced.
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Assembly Bill 291 (Medical Malpractice): Allows for a parent to have
the right to recover for loss of society and companionship if the
parent’s adult child is injured as the result of medical malpractice,
and for an adult child's right to recover for loss of society and
companionship if the adult child’s parent dies as the result of medical
malpractice.
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Assembly Bill 299 (Regulation of certain products containing
mercury): Regulates the sale of products to which mercury has been
added during formulation and manufacture (mercury-added products),
including fever thermometers, manometers (instruments for measuring
pressure), thermostats, instruments and measuring devices, switches and
relays, and household items.
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Assembly Bill 311 (Payday loans): Prohibits payday loans in a
principal amount that exceeds $800 or 50 percent of the applicant’s next
paycheck, whichever is greater; Limits a consumer’s ability to
“rollover” a payday loan.
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Assembly Bill 305 (Notice in Foreclosure Actions): Requires lender,
mortgage holder, or any other party bringing a foreclosure action
against a homeowner to include, in its pleading that sets forth a claim
for relief, a statement that either party may request the court to order
alternative dispute resolution for the foreclosure claim. This is a
companion bill to SB 213.
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Assembly Bill 309 (Storage or spent fuel from nuclear power plants):
Requires a public utility that uses dry cask storage to store spent fuel
from a nuclear power plant to make annual payments to the city, village,
or town (municipality), and to the county, in which the spent fuel is
stored.
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