SCOW recently rejected a challenge to Wisconsin’s statutory cap on noneconomic damages for victims of medical malpractice. See Mayo v. Wisconsin Injured Patients and Families Compensation Fund, 2018 WI 78. If you are challenging the constitutionality of a Wisconsin statute, you may want to take a careful look at this decision. The justices appear to have split over the proper standard for judging the constitutionality of a statute.
Only three justices (Roggensack, Ziegler, Gableman) agreed with the longstanding principle that the party challenging a statute must prove that is unconstitutional beyond a reasonable doubt. Two justices (R.G. Bradley and Kelly) argue that this test is too tough! See Concurrence ¶¶68-95. Instead, following SCOTUS, the challenger should only have to make a “plain showing” that a statute is unconstitutional. Id., ¶79. Justices A.W. Bradley and Abrahamson dissented but did not comment on this standard. There may be 4 votes for a lower standard–or even 5 depending on Justice Dallett’s views.
