In October 2020, the Department of Energy (DOE) adopted a rule defining a new dishwasher class as “standard residential dishwashers with a cycle time for the normal cycle of one or less from washing through drying.”[1] Not long after passing the 2020 Dishwasher Rule, the DOE created an analogous rule creating new classes of “top-loading clothes washers and consumer clothes dryers” having a “normal cycle time of less than 30 minutes.”[2] Then, in January 2022, the DOE repealed the 2020 Dishwasher Rule and 2020 Laundry Rule (the “Repeal”). Consumer Reports took note:

“Not so long ago you could count on most washers to get your clothes very clean. Not anymore. Our latest tests found huge performance differences among machines. Some left our stain-soaked swatches nearly as dirty as they were before washing. For best results, you’ll have to spend $900 or more.” (Italics added).

 

“What happened? As of January, the U.S. Department of Energy has required washers to use 21 percent less energy, a goal we wholeheartedly support. But our tests have found that traditional top-loaders, those with the familiar center-post agitators, are having a tough time wringing out those savings without sacrificing cleaning ability, the main reason you buy a washer.”

 

A group of states, led by Louisiana (state motto: “Union, Justice and Clean Laundry”) sued to overturn the repeal and to return to the halcyon days when clean laundry was king. Don Henley, who made a living on the evening news, summed up the sentiment of the suing states:

                      You don’t really need to find out what’s goin’ on
                      You don’t really wanna know just how far it’s gone
                      Just leave well enough alone
                      Eat your dirty laundry

The DOE and the states aired their dirty laundry in front of the United States Court of Appeals for the Fifth Circuit. In favor of speed cleaning, the Fifth Circuit noted:

Appliances including dishwashers, clothes washers, and clothes dryers with faster normal-cycle completion times that also maintain cleaning and drying effectiveness, such as dishwashers that complete a normal cycle in one hour or less, are desirable in the bunkhouse setting. Such features are beneficial and productivity enhancing, since they would permit faster washing and completion of additional cycles during the workday.[3]

The States argued that the DOE’s repeal actually had the opposite effect of what was intended – higher efficiency: “They make Americans use more energy and more water for the simple reason that purportedly ‘energy efficient’ appliances do not work” requiring the use of more energy and water to “preclean, reclean, or handwash their stuff before, after, or in lieu of using DOE-regulated appliances.”[4] The evidence presented to the Fifth Circuit showed that “dishwasher cycle time has increased from around one hour at the advent of DOE’s conservation program to around two and a half hours in 2020.”[5]

In a 25-page opinion, the Fifth Circuit ultimately found that DOE’s Repeal was “arbitrary” and “capricious” and sent the matter back to the DOE for further proceedings. To come to this opinion they looked at the connection between the facts found and the decision made. They argue that the DOE does not have the authority to regulate water usage and that the DOE did not consider the negative consequences of re-washing, pre-washing, and hand-washing clothing. In trying to conserve water and make machines more efficient, these new rules have had the opposite effect.

The next time you are considering purchasing a dishwasher or clothing washer, be sure to look at the overall functionality of the machine. Do not be swayed by the “more efficient” fast cycle terms.

[1] See Establishment of a New Product Class for Residential Dishwashers, 85 Fed. Reg. 68723 (Oct. 30, 2020) (the “2020 Dishwasher Rule”).

[2] See Establishment of a New Product Class for Residential Clothes Washers and Consumer Clothes Dryers, 85 Fed. Reg. 81359 (Dec. 16, 2020) (the “2020 Laundry Rule.”) .

[3] Louisiana v. United States DOE, No. 22-60146, 2024 U.S. App. LEXIS 507, p. 7-8 (5th Cir. Jan. 8, 2024)

[4] Id. p. 14.

[5] Id. p. 15.

Most people have heard of small claims court and large claims court, but how do the differences between these two impact the claim that you may have?  Generally speaking, large claims civil lawsuits involve civil claims where the damages are more than $10,000.00, or more than $5,000.00 for a tort claim (such as personal injury or property damage). If you have a claim such as a breach of contract, business dispute, real estate dispute, employment dispute where the damages sought exceed $10,000.00, then this claim must be filed in large claims court. If someone has a personal injury claim such as tort claim and property damage claim in which damages exceed $5,000.00, those claims also must be filed in large claims court.

The process in large claims cases is more involved and more expensive than in small claims court. The filing fee in a large claims is several hundred dollars just to start the case. The litigants must draft their own legal documents to file and to serve in the case (there are no standard court forms for starting a large claims action). In addition litigants in large claims cases must abide by a scheduling order imposed by the court. A large claims case usually involves a lengthy process where parties are required to name witnesses, engage in written discovery and depositions by certain times; there are deadlines for filing motions; the parties are typically ordered to attend a mediation to see if they can settle their dispute. Then, after all of the above are completed, the parties may finally have their chance for a trial in front of a jury or a judge. Because of this more complex procedure involved in large claims cases, most litigants typically retain attorneys to assist in representing them throughout this process. It can take at least 18 months or more from the start of the lawsuit until a trial finally takes place in large claims court.

By contrast, a small claims case can be handled much more quickly and efficiently, and many people handle these cases by themselves in order to save on costs. Small claims court, however, may be used only for certain types of cases, such as the following:

• Claim for money damages where the amounts do not exceed $10,000.00
• Claim for property damage or personal injury (tort actions) if the damages sought are less than $5,000.00
• Eviction actions, regardless of the amount of rent claimed
• Repossessions of property (replevins) when it is a:

– Non consumer credit action or the value of the property does not exceed $10,000.00
– Consumer credit transaction (personal property that was the subject of a lease or credit from a dealer) where the financed amount is $25,000.00 or less.

• Evictions due to foreclosure
• Return of earnest money for purchase of real property, regardless of the amount
• Actions on an arbitration award for the purchase of real property, regardless of the amount.

Even if someone files a claim in small claims court where the damages exceed $10,000.00, the small claims court cannot award any more than $10,000.00 maximum, plus costs.

Unlike large claims cases, there are sample forms that individuals can fill out to initiate a small claims action. The filing fee is also much less than a large claims case. One of the most significant distinctions between large and small claims court is how fast the case goes through the court system. The entire case can be filed and tried to the Court in only a few months in some instances in small claims court, as opposed to a couple of years in large claims court.

It is important for individuals to be aware of the differences when selecting which court to file in. Seeking the advice of an attorney can be helpful in making this assessment as well as assisting with navigating the legal process.

What are the rules for landlords and tenants when it comes to emotional support animals?

For landlords there are important rules to follow to avoid running afoul with Wisconsin and Federal Discrimination laws.

An Emotional Support Animal (ESA) is defined in Wis. Stat. §106.50 as “an animal that provides emotional support, well-being, comfort, or companionship for an individual but that is not trained to perform tasks for the benefit of an individual with a disability.” That means that an ESA does not need any specific training in order to qualify under this statute.

In general ESAs are protected and landlords cannot discriminate against tenants with ESAs and must provide reasonable accommodations for owners of ESAs during the application process, when deciding on fees or in an eviction. The ESA must be necessary to afford the tenant the equal opportunity to use the dwelling and there needs to be a connection between the disability of the tenant and the accommodation the ESA provides.

Landlords can request the tenant seeking the accommodation to submit “reliable documentation” from a licensed health professional that shows (1) the tenant has a disability and (2) the related need for the ESA. If the disability and the need for the ESA are readily apparent or already known by the landlord, the landlord should not require the tenant to provide this documentation because that could be considered harassment.

Landlords can follow-up with the listed licensed health professional to ensure the professional is real and licensed. The health professional will not be able to discuss the tenant’s health with the landlord without violating HIPPA. However, it is likely that if the tenant supplies the landlord with a letter, the health professional will be willing to acknowledge they wrote a letter for the client. This should give the landlord comfort in knowing that the tenant is likely not lying.

If the tenant can provide the necessary paperwork, landlords cannot refuse housing, impose fines, evict or harass the tenant as a result of the ESA and must provide reasonable accommodations. The most common accommodations are (1) allowing the tenant to live with an ESA where the landlord normally has a no-pets policy or (2) waiving any pet deposit or other pet related fee.

From the legal perspective, ESAs are not “pets” and are closer to medical devices that the tenant needs in order to have an equal opportunity to enjoy the housing. This is an important distinction and can help landlords justify letting one tenant have an ESA but not allowing another tenant to have a pet.

Even though the tenant cannot be forced to pay a deposit or fee for having the ESA in the dwelling, the tenant is still liable “for sanitation with respect to, and damage to the premises caused by the [ESA].” This means that a landlord does not need to take on any extra liability when it comes to the ESA. Upon termination of the lease, the landlord should check for any sanitation issues with or damage to the property, because those are things that the tenant is responsible for and for which the tenant cannot receive accommodations.

It is common for a group of people to want one attorney to represent them all in a legal matter. Whether it is a married couple looking for estate planning representation or if it is two people who own a property together and are both looking to evict a tenant or sell the property.

Attorneys can be expensive, so from an economic standpoint, it can be financially beneficial to have one attorney rather than paying two or more attorneys to work with you.

This may seem like a great idea, but for an attorney, it may cause some tricky ethical problems. Attorneys are inclined to zealously advocate for their clients. This can be difficult when there is more than one client involved. If the individuals that are being represented by one attorney, do not agree on the right way forward there can be issues. The individuals may even decide they want different things throughout the process.

In this scenario, you can expect the attorney to request to be allowed to withdraw as counsel because the attorney will not be able to take any action when it is against what one of the clients wants. If client “A” wants to dismiss the case, but client “B” wants to keep going, the attorney will not be able to do either action without going against one of their wishes and will need to withdraw.

Another issue for people considering joint representation is that the attorney-client privilege applies to the group of clients. That means if there is anything client “A” is trying to keep secret from the client “B”, the Attorney will be allowed to tell client “B.” Moreover, the attorney likely has to tell client “B” in order to protect client “B’s” interest in the matter.

If you are considering having one attorney represent you and another person or other people, be sure you have thought about what happens if you all disagree. You may save money if things go as planned. But, you may still have to hire a separate attorney to represent you, if complications arise between you and the other clients.

If you find yourself in this situation, please contact one of our experienced attorneys.

There are many cases decided by the U.S. Supreme Court that receive scant attention from the public. Despite ideological divisions among the justices, it is not uncommon for the Court to vote 9-0 in case. In the case of Tyler v. Hennepin County, Minnesota, the Court issued a unanimous decision concerning the constitutionality of a tax lien foreclosure.

Geraldine Tyler owed $15,000 in unpaid real estate taxes on a condominium she owned in Hennepin County, Minnesota. The County seized the condomin and sold it for $40,000, keeping the $25,000 excess over what Tyler owed in unpaid taxes. Tyler argued the windfall to the County was unconstitutional in violation of the Takings Clause of the Fifth Amendment. The Takings Clause provides that “private property [shall not] be taken for public use, without just compensation.” U. S. Const., Amdt. 5. The question the Court concerned itself with was whether the surplus funds from the sale of the condominium are protected from uncompensated appropriation by the County. The Court’s analysis provided a history lesson in our English common law roots:

Parliament gave the Crown the power to seize and sell a taxpayer’s property to recover a tax debt, but dictated that any “Overplus” from the sale “be immediately restored to the Owner.” 4 W. & M., ch. 1, §12, in 3 Eng. Stat. at Large 488–489 (1692). As Blackstone explained, the common law demanded the same: If a tax collector seized a taxpayer’s property, he was “bound by an implied contract in law to restore [the property] on payment of the debt, duty, and expenses, before the time of sale; or, when sold, to render back the overplus.” 2 Commentaries on the Laws of England 453 (1771).

Ultimately, the Court held that “Tyler has plausibly alleged a taking under the Fifth Amendment,” reasoning that a “taxpayer who loses her $40,000 house to the State to fulfill a $15,000 tax debt has made a far greater contribution to the public fisc [treasury] than she owed.” Wisconsin’s law on foreclosure of tax liens, Wis. Stat. § 75.521, is similar to the law that was challenged in Tyler. While the Wisconsin law is still on the books, a challenge to its constitutionality seems inevitable.

If you have any questions about tax liens or foreclosures, please discuss it with one of our experienced real estate or tax attorneys.