SCOW watchers might find today’s 3-3 split in Yasmine Clark v. American Cyanamid Company, 2014AP775 interesting. The appeal raises an important constitutional issue in the context of a lead paint products liability case. The court of appeals’ certification asks:
Does applying WIS. STAT. § 895.046—which prohibits plaintiffs from asserting claims against manufacturers of white lead carbonate under the risk-contribution theory as articulated in Thomas v. Mallett, 2005 WI 129, 285 Wis. 2d 236, 701 N.W.2d 523—retroactively deprive a plaintiff of a vested property right in violation of the due process protections guaranteed by Article I, Section I of the Wisconsin Constitution?
If your eyes just glazed over, think about the last time you heard “lead paint” and “SCOW” mentioned in the same breath. You probably also heard the name “Louis Butler” as well. Butler wrote Thomas, which allowed a plaintiff to sue several manufacturers of lead paint even though he could not prove which one made the product that left him with disabilities. The case moved over to the federal courts, where the Seventh Circuit approved the result in Thomas. Click here for more on that. In 2011, the legislature passed § 895.046 to undo Thomas.
Back to the 3-3 split. Unlikely bedfellows Roggensack, Abrahamson and A.W. Bradley would affirm the circuit court, which held that the plaintiff could pursue her personal injury claim as described in Thomas. Familiar bedfellows Prosser, Ziegler, and Gableman would reverse. You may recalls R.G. Bradley was criticized by Abrahamson and the press for suddenly emerging to cast the deciding vote against the defense in State v. Matalonis, a case that was argued while R.G. Bradley was still a court of appeals judge. So you can bet the words “3-3 split” and “Bradley R.G., J. did not participate”in today’s decision from SCOW caught On Point’s attention. Turns out R.G. Bradley was one of the judges on the court of appeals’ certification, so that likely explains why she did not cast the deciding vote in this case.
Because this case reached SCOW via certification, sending it back to the court of appeals is the right result. The parties will get a court of appeals decision. No doubt the loser will file a petition for review with SCOW and garner the 3 votes required for a grant order (see today’s 3-3 split). The more interesting question is whether this case’s next foray into SCOW will also end in a 3-3 split. After all, R.G. Bradley “previously handled the action or proceeding while a judge of an inferior court.” As noted, that is presumably why she did not participate in today’s decision. Under the plain language of §757.19(2)(e), she would seem to be permanently disqualified from reviewing this case as a justice on SCOW. If this problem sounds familiar, that’s because it also arose in State v. Dmitiri Henley. Click here. Interesting times ahead in SCOW.