Order in the jungle

The rule of law has become a big idea in economics. But it has had its difficulties

The Economist, March 13, 2008

Arguments April 1, 2008

Wisconsin Court of Appeals at Dist. I, 633 W. Wisconsin Ave., #1400, Milwaukee

11:00 a.m. State v. Adrian J. Jackson (2007AP1362-CR)

Professor: Don't be too quick to criticize negative ads

Heather Laroi reports in the Wisconsin State Journal

negative campaigns ads may be getting a bad rap, says UW-Madison political science professor Ken Goldstein.

Goldstein 's research suggests that, counter to what many may think, negative ads can enrich the political process by focusing vital attention on issues and the differences between candidates.

(via WisPolitics)

Mr. Goldstein was the featured speaker at our chapter's February 12, 2004 event.

Review granted in 'State v. Patrick C. Carter'

(2006AP1811)

In this criminal case, the state’s petition for review sets forth a single issue: "Is a defendant who is arrested in a foreign state on both a violation of the foreign state’s criminal law and a fugitive warrant based on pending criminal charges entitled to sentence credit on a concurrent sentence for the time spent in custody in the foreign state after arrest and before sentencing on the foreign state’s conviction?"

Some background: On July 23, 2003, a criminal complaint charging Patrick C. Carter with first-degree recklessly endangering safety was filed in the Milwaukee County Circuit Court. A felony arrest warrant, which authorized Carter’s extradition from any state, was then issued.

On Dec. 14, 2003, Carter was arrested in the Chicago area in connection with an armed robbery and a charge of driving under the influence (DUI). The Illinois authorities also placed a hold on Carter because of a Wisconsin "fugitive warrant." Two days later, Carter was "charged" with the Wisconsin warrant. Carter remained in Cook County Jail nearly a year, during which time he was sentenced to a seven-day jail term for the DUI charge. He was also convicted of the armed robbery charge and was given a 14-year sentence for that offense.

On March 14, 2004, while in Cook County Jail, Carter was served with a Wisconsin governor’s warrant. After being sentenced on the Illinois armed robbery conviction, Carter was extradited to Wisconsin. On Aug. 30, 2005, Carter entered a guilty plea to the Wisconsin charge of first-degree recklessly endangering safety. He was sentenced to seven and a half years of initial confinement and five years of extended supervision. The court stated the sentence was to run concurrently to the existing Illinois sentence. Pursuant to an agreement between defense counsel and the prosecutor, Carter was given 91 days of sentence credit for the period between his initial appearance in Wisconsin on June 1, 2005, and the sentencing date.

The circuit court denied Carter’s post-conviction motion seeking a sentence credit for 324 days for the time he had been incarcerated in Illinois prior to the beginning of his Illinois armed robbery sentence, concluding Carter had not been in custody "in connection with the course of conduct for which (the Wisconsin) sentence was imposed" under Wis. Stat. § 973.155 until he had been placed under the control of Wisconsin authorities.

The Court of Appeals reversed [2007 WI App 255], granting Carter credit for 227 additional days of incarceration, in part because some of the time served in custody in Illinois was attributable to the Wisconsin fugitive charge.

A decision by the Supreme Court could clarify how the rulings in prior cases fit together when interpreting the sentence credit statute in Carter’s situation. From Milwaukee County.

Review granted in 'State v. Denk'

(2006AP1744-CR)

The District IV Court of Appeals has certified the question of whether the police may search the personal belongings of a passenger that are found outside a motor vehicle incident to the arrest of the driver based on the reasoning of a previous case, State v. Pallone, 2000 WI 77, 236 Wis. 2d 162, 613 N.W. 2d 568 [cert. denied, Pallone v. Wisconsin, 121 S.Ct.1148 (2000)].

Some background: A police officer in Pepin County came upon a car parked on the side of the road and asked its driver, Christopher Pickering, if he needed help.

Upon running a license plate check, the officer discovered the license plates on the vehicle did not belong to Pickering’s car. When the officer returned to the car, he smelled marijuana and eventually found drug paraphernalia and marijuana.

After formally arresting Pickering, the officer walked around to the passenger side of the car, where he saw a small eyeglass case on the ground in the vicinity where the passenger, Jordan A. Denk, was standing. Denk conceded the eyeglass case belonged to him and placed the case on the hood of the car at the officer’s request. Denk denied owning the contents, which turned out to be a glass "methamphetamine pipe" and "some cleaning tools." The officer arrested Denk and searched him, finding a baggie of marijuana, two marijuana pipes and a baggie containing methamphetamine.

Denk was initially charged with two felonies, including possession with intent to deliver THC and simple possession of methamphetamine, and two misdemeanors. The state later dropped the felony charge of possessing THC with intent to deliver but amended the complaint to include a Class H felony charge of possession of methamphetamine-related drug paraphernalia.

The circuit court denied Denk’s motion to suppress the results of the search of his eyeglass case and his person, concluding the officer was justified in his search incident to Pickering’s arrest. The circuit court also concluded that Denk had consented to the search of the eyeglass case. After the circuit court denied the suppression motion, Denk reached a plea agreement with the state under which he pleaded no contest to a Class I felony count of possessing methamphetamine-related drug paraphernalia. The state agreed to dismiss the more serious Class H felony and the two misdemeanors.

Denk filed a post-conviction motion to withdraw his guilty plea, contending the state could not have legally charged Denk with the Class H felony.

The Court of Appeals certification memorandum focuses on the search of the eyeglass case and whether its search could be justified as incident to the arrest of the driver, Pickering.

The state argues the search incident to the arrest of a driver of a vehicle should extend beyond a vehicle’s interior to an immediate area surrounding the vehicle from which the driver could retrieve a weapon or evidence. To rule otherwise would allow criminals to get rid of evidence or contraband simply by throwing it out of the vehicle, the state contends.

Denk asserts the search-incident-to-arrest exception authorizes police to search only the interior compartment of an automobile in which the individual was a recent occupant.

A decision by the Supreme Court could develop law in this area and determine how case law applies to this situation. From Pepin County.

Review granted in 'D.L. Anderson’s Lakeside Leisure Co. v. Anderson Marine'

(2007AP46)

This case involves claims that a non-compete clause was violated and that a common law trade-name infringement occurred after the execution of an asset purchase agreement involving businesses in the Waunakee area.

D.L. Anderson’s Lakeside Leisure Co., Inc., M. Scott Statz and Steven Statz seek review of a decision affirming in part, reversing in part, and remanding a judgment entered on a jury’s verdict against Donald Anderson and Anderson Marine, LLC.

Some background: In October 2000, the Statzes purchased D.L. Anderson Marine Contractors, which also operated under the name D.L. Anderson Co. The agreement included a non-compete clause, stating that for seven years within a 120-mile radius of Waunakee, Donald Anderson would not permit his name to be used by any competing business.

Around January 2002, Anderson began working as a dealer representative for a pier manufacturer and boat-lift distributor in Wisconsin and four other states. In the fall of 2003, Anderson formed another business, Anderson Marine, LLC, which operated under the name "The Sailboat House at Anderson Marine", which sold boats and marine accessories about a mile away from the Statzes’ business.

The Statzes sued, and, after a three-day trial, a jury found Anderson breached the non-compete clause and awarded $15,000 in compensatory damages. The jury also found Anderson had infringed on the D.L. Anderson Co. trade name and awarded $75,000 in compensatory damages on this claim, $160,000 in punitive damages against Anderson Marine, LLC. The court extended the duration of the non-compete clause and awarded $118,435 in attorney fees for both claims in accordance with the contract.

The Andersons appealed. The Court of Appeals [2007 WI App 269] first determined sufficient evidence supported the jury’s finding of breach of the non-compete clause and the $15,000 in compensatory damages. Second, it concluded sufficient evidence supported the finding of trade name infringement but the $75,000 compensatory damage award was unsupported. Therefore, it reversed both the compensatory and punitive damage award on the trade name infringement. Third, it ruled that with one geographical modification, the injunctive relief extending the duration of the non-compete provision was proper. Finally, it held that based on the contract language, the attorney fee award must be reduced and remanded for that purpose.

Both sides have asked the Supreme Court to review. A decision by the Supreme Court could develop the area of law involving trademark infringement, damages and non-compete clauses. From Dane County. Justice Annette Kingsland Ziegler did not participate.

Review granted in 'Plastics Engineering Co. (Plenco) v. Liberty Mutual'

(2008AP333-CQ)

The U.S. Court of Appeals for the 7th Circuit has asked the Wisconsin Supreme Court to certify three questions related to this case, which involves insurance coverage for asbestos-related lawsuits [see this earlier post]. As the 7th Circuit points out, there does not appear to be any Wisconsin precedent addressing the three specific issues:

What constitutes an "occurrence" in an insurance contract when exposure injuries are sustained by numerous individuals at varying geographical locations over many years;

Whether Wisconsin Wis. Stat. § 631.43 (1) applies to successive insurance policies; and

Whether Wisconsin courts would adopt an "all sums" or pro rata allocation approach to determining liability when an injury spans multiple successive insurance policies.

Some background: Plenco, which began manufacturing molding compounds in 1934, has been a defendant in hundreds of lawsuits for claims arising from individuals’ exposure to asbestos-containing products it manufactured from 1950 to 1983. Liberty Mutual Insurance Co. provided primary general liability policies to Plenco beginning in 1957 and umbrella policies for most of the years since May 1970.

In 2004, Plenco filed a complaint in U.S. District Court for the Eastern District of Wisconsin against Liberty Mutual. Plenco sought a declaratory judgment that Liberty Mutual was obligated to fully defend Plenco in all of its pending and future asbestos-related lawsuits. Liberty Mutual sought an opposing declaration that it was not obligated to pay certain defense and indemnification expenses and was entitled to a refund for some expenses.

The parties stipulated to a joint statement of facts and subsequently filed motions for summary judgment in the 7th Circuit.

On Oct. 2, 2006, the 7th Circuit Court issued a decision and order granting in part and denying in part each party’s motion for summary judgment. The court subsequently entered a final declaratory judgment to which both parties consented.

The judgment lays out an understanding on how coverage will be handled, depending on the timing and definition of "occurrences." Both side appealed.

A decision by the Supreme Court could clarify the definition of "occurrence" under Wisconsin law and control the outcome of the appeal in the 7th Circuit. A decision also could have public policy implications and resolve questions likely to recur in the state. This case originated in the U.S. District Court for Eastern Wisconsin.

Review granted in 'Godoy v. E.I. du Pont'

(2006AP2670)

This is a product liability case involving lead paint and pigment manufacturers. A decision by the Supreme Court could affect more than 30 similar cases pending in Milwaukee County Circuit Court and how the Supreme Court’s 2005 decision in Thomas ex rel. Gramling v. Mallett [see this earlier post] may be applied in other cases.

Some background: According to the complaint, Ruben Baez Godoy, now 10 years old, was poisoned when he was one year old after ingesting white lead carbonate derived from painted surfaces, paint chips, paint flakes and dust while living in a Milwaukee apartment with his family in 1998.

The complaint alleges that the defendants, including du Pont, the Sherwin-Williams Company and American Cyanamid Co., knew that the white lead carbonate was dangerous when used in paint. The companies allegedly lied by failing to disclose the hazardous nature of white lead carbonate and by representing their products as safe.

Attorneys for Godoy have asked the Supreme Court to determine if the white lead carbonate pigment was defectively designed where the injury-causing lead is a prominent ingredient in the paint pigment.

The circuit court dismissed the plaintiff’s strict liability and negligence defective-design claims, concluding that lead is inherent in the product white lead carbonate and that white lead carbonate could not be designed without using lead.

The Court of Appeals affirmed [2007 WI App 239], saying the issue presented is whether a product can be considered defectively designed when the design is inherent in the nature of the product.

The parties are at odds as to whether Godoy’s claim complies with the Supreme Court’s decision in Thomas, which expressly recognized the right of a lead-poisoned child to sue the former manufacturers of lead pigment for personal injury damages under both negligence and strict liability.

Godoy contends the theory that there is no alternative design is predicated on the incorrect assumption that the product in question here is leaded pigments. He says the product in question is paint pigment, and the appropriate question is whether paint can be made without lead.

DuPont argues the issues presented here do not bear on the "risk contribution" doctrine, and the Supreme Court’s decision in Thomas does not apply because Thomas did not appeal design defect claims.

DuPont also contends the defective design argument is "akin to alleging that a manufacturer of knives should have made spoons instead," and that the issue of paint pigment was not brought up until appeal.

Another of Godoy’s claims -- "failure to warn" -- was not dismissed by Milwaukee County Circuit Court, and that portion of the case is still pending in the circuit court during leave for this appeal. From Milwaukee County. Justice Patience Drake Roggensack did not participate.

This Week in Liberal Judicial Activism: Week of March 31, 2008

Ed Whelan at Bench Memos.

Mr. Whelan was the featured speaker at our chapter's March 8, 2007 luncheon.

Uncivil Action

by Steven Brill, review of The Appeal, by John Grisham, The New York Times, March 30, 2008


(see these earlier posts on reviews by Collin Levy and Rick Esenberg)

Faith and Reason: Why We Do Good

Pallium Lecture, June 11, 2007, by Prof. Robert P. George, Marquette Laywer (Spring/Summer 2008) pp. 62-71

Mr. George was the featured speaker at our chapter's March 30, 2000 luncheon.

American Religious Democracy:

Coming to Terms with the End of Secular Politics, by Bruce Ledewitz, review by Kenneth Krause, Wisconsin Lawyer, March 2008

Shots fly in final Supreme Court debate

Rhetorical shots. Greg Bump reports at WisPolitics, March 28, 2008

Mark Behrens on 'Hall Street Associates v. Mattel'

March 28, 2008 SCOTUScast audio

In Hall Street Associates v. Mattel the Supreme Court was asked to consider whether or not a federal court can enforce an arbitration agreement that provides for more expansive judicial review of an arbitration award than the narrow standard of review provided for in the Federal Arbitration Act. The Court held on March 25, 2008 that the FAA’s grounds for prompt vacatur and modification of awards are exclusive for parties seeking expedited review under the FAA. In this episode of SCOTUScast, Mark Behrens, a partner at the DC based law firm, Shook Hardy & Bacon, discusses the case.

Supreme Court Limits Review of Arbitration Awards, by John Harding, Morrison Mahoney LLP, Boston, Massachusetts, This Week's Feature from DRI's The Voice, April 16, 2008, Volume 7, Issue 15

Civil Procedure: Arbitration; judicial review, Wisconsin Law Journal case digest

2008 Future Wisconsin Conference April 4-5

presented by the Wisconsin Conservative Leadership Coalition at Blue Mound Gardens, Wauwatosa, Wisconsin

Parents not strictly liable for teen drinking

"Things sure have changed since we got kicked out of high school." The Ramones, "Rock and Roll High School."

It is no longer be acceptable for parents to allow high school students to have parties with alcohol at home, like it was "back in the day."

But at least parents are not strictly liable for the consequences of teen drinking parties on their property, even when they don't enable the party.

Arguments week of March 30, 2007

April 1, 2008 Wisconsin Court of Appeals at Dist. I, 633 W. Wisconsin Ave., #1400, Milwaukee

11:00 a.m. State v. Adrian J. Jackson (2007AP1362-CR)


April 4, 2008 Wisconsin Supreme Court

9:45 a.m. State v. Sou W. Her (2006AP1239-CR)
(see earlier post on grant of review)

10:45 a.m. Diana G. Sanders v. Estate of David R. Sanders (2006AP424)
(see earlier post on grant of review)

1:30 p.m. Michael J. Watton v. Nanette H. Hegerty (2006AP3092)
(see earlier post on grant of review)

Board may regulate issue ads

Mark Pitsch reported in the Wisconsin State Journal

Displaying a willingness to exercise its newly granted authority, the state Government Accountability Board voted Wednesday to consider regulating the thinly veiled campaign spots known as issue ads.

The Board voted to ask the Brennan Center for Justice at New York University to propose rules for review by Board staff.

Deborah Goldberg, the director of the Democracy Program at the Brennan Center who urged the board Wednesday to regulate issue ads, said the board could consider:

- Requiring disclosure of all individuals, corporations and groups that fund issue ads.

- Declaring that ads discussing the character and qualifications of a candidate don 't fit the definition of issue ads and instead advocate for or against a candidate.

- Declaring all ads in state Supreme Court races are advocacy ads, thus requiring the disclosure of donors for ads in those races only.

(via Christian Schneider at Wisconsin Policy Research Institute, Voters’ Date of Birth: Yesterday)

'AccuWeb, Inc. v. Foley & Lardner' 2008 WI 24

On March 28, 2008, the Wisconsin Supreme Court issued its opinion in this case (2005AP3190) reversing the Court of Appeals [unpublished opinion].
Opinion by Justice Crooks for a unanimous court
Justice Ziegler did not participate.


Civil Procedure: Summary Judgment - Genuine Issues of Material Facts Regarding Damages, Supreme Court Digest, by Prof. Daniel D. Blinka and Prof. Thomas J. Hammer, Wisconsin Lawyer, June 2008

'Washburn County v. Smith' 2008 WI 23

On March 28, 2008, the Wisconsin Supreme Court issued its opinion in this case (2006AP3163) affirming the Court of Appeals [unpublished opinion].
Opinion by Chief Justice Abrahamson for a unanimous court

(see earlier post on grant of review)

Motor Vehicle Law: OWI - Implied Consent - Elements of a Refusal Hearing - Probable Cause for Arrest - Informing the Accused - Oversupply of Information Before Refusal
Supreme Court Digest, by Prof. Daniel D. Blinka and Prof. Thomas J. Hammer, Wisconsin Lawyer, May 2008

OWI/ Refusal/ Probable Cause/ Arrest/ Reasonable Suspicion/ Statutes/ Statutory Construction-Interpretation/ Evidence
CaseLaw Express, Week of March 24, 2008

Wisconsin Law Journal current Case Digests

'Stuart v. Weisflog's Showroom Gallery, Inc.' 2008 WI 22

On March 28, 2008, the Wisconsin Supreme Court issued its opinion in this case (2005AP886) affirming the Court of Appeals, 2006 WI App 109, 293 Wis. 2d 668, 721 N.W.2d 127 (2006) and remanding for further proceedings
Opinion by Justice Crooks
Concurrence by Chief Justice Abrahamson
Concurrence and Dissent by Justice Roggensack, joined by Justices Prosser and Ziegler
See Stuart v. Weisflog's Showroom Gallery, Inc., 2008 WI 86.

Consumer Law: Home Improvements - Negligence - Damages - Statute of Limitation
Supreme Court Digest, by Prof. Daniel D. Blinka and Prof. Thomas J. Hammer, Wisconsin Lawyer, May 2008

Court doubles damages for home improvement violations, by David Ziemer, Wisconsin Law Journal, April 2, 2008

Supreme Court Plants another Sloppy Wet Kiss on State Trial Bar, by Deb Jordahl, Wisconsin Policy Research Institute, March 31, 2008
(via WisPolitics)

Justices side with homeowners: Shoddy home addition merits double damages, by Marie Rohde, Milwaukee Journal Sentinel, March 29, 2008

Wisconsin Law Journal current Case Digests

See Everyone's Business: Emerging Issues in the Wisconsin Supreme Court (2008) by Rick Esenberg, p. 9

Key Findings from a Survey of 500 Likely Voters in Wisconsin

On behalf of The Federalist Society, the polling company™, inc. conducted a statewide telephone survey of 500 likely voters in Wisconsin to assess their knowledge, opinions, and expectations of the state’s Supreme Court. The survey revealed that Wisconsin’s voting public approved of their current role in seating the state’s highest court. They vowed to select those who purge all personal perspectives in their decisionmaking processes in order to ensure a restrained and responsible judiciary.

Court of Appeals opinions week of March 24, 2008

Opinions March 27, 2008

including State v. Kramer (No. 2007AP1834-CR)
Community caretaker activity re-examined: But court must follow its own precedents, by David Ziemer, Wisconsin Law Journal, April 1, 2008


Opinions March 26, 2008


Opinions March 25, 2008

including Noesen v. State of Wisconsin Dept. of Regulation and Licensing (2006AP1110)
New Federalism goes every which way, Rick Esenberg at Shark and Shepherd, April 28, 2008 7:44 AM
Pharmacist says discipline violated rights: After refusing to fill order in 2002, he wants high court to hear case, by Marie Rohde, Milwaukee Journal Sentinel, April 28, 2008
Birth control denial revisited, by Marie Rohde, Milwaukee Journal Sentinel, April 24, 2008
Conscience questions remain after Catholic pharmacist loses appeal, by Franz Klein, Catholic News Service, April 7, 2008
Rebuke upheld in refusal to fill birth control, by Marie Rohde, Milwaukee Journal Sentinel, March 26, 2008


CaseLaw Express, Week of March 24, 2008


Wisconsin Law Journal current Case Digests

Supreme Court Debate-Butler/Gableman

Video download is available from this Tuesday, March 25, 2008 event at the State Bar headquarters in Madison.

Richard Esenberg on 'Federal Express v. Holowecki'

March 25, 2008 SCOTUScast audio

On February 27, 2008, the Supreme Court decided the case of Federal Express v. Holowecki. The Court held that an "intake questionnaire" submitted to the EEOC may suffice for the charge of discrimination that must be submitted pursuant to the ADEA. Marquette Law professor Richard Esenberg discusses the case.

Mr. Esenberg was a panel member at our chapter's March 11, 2008 event and the featured speaker at our March 26, 2007 event.

He is the author of Everyone’s Business: Emerging Issues in the Wisconsin Supreme Court (2008), and A Court Unbound? The Recent Jurisprudence of the Wisconsin Supreme Court (2007)

No one here but us Scalias

Patrick McIlheran in the Milwaukee Journal Sentinel, March 26, 2008

Supreme Court opinion March 26, 2008

Disciplinary matter only

Towns can ban billboards on state highways

The federal Highway Beautification Act, and the State's compliance with it, do not bar municipalities from outlawing billboards along state highways.

Other statutes not discussed in the opinion, however, suggest that they cannot.

Everyone’s Business: Emerging Issues in the Wisconsin Supreme Court (2008)

by Richard Esenberg

The purpose of this paper is not to rehearse the arguments that I made last year, but to examine a series of issues that are likely to come before the court in the near future. Of course, doing so is something of an educated guess. The Court’s calendar is a function of the choices of litigants and the Court’s responses to the cases that it is asked to review. These issues may not present themselves and it is almost certain that other important questions – including some that have not occurred to me – will come before the court. My purpose here is to simply suggest some potential judicial frontiers as we once again debate the role of the Wisconsin Supreme Court in the midst of an election.

Mr. Esenberg was a panel member at our chapter's March 11, 2008 event and the featured speaker at our March 26, 2007 event.

State Judicial Selection: Once More Unto the Breach

by Michael DeBow, Engage Volume 9, Issue 1, February 2008

Another election season approaches and with it the debate over the proper mechanism to select state judges. This has been a recurring debate in American politics, and today’s critics of judicial elections show no sign of fatigue. The ABA and various state bar associations, the American Judicature Society, and quite a few academic and judicial critics have recently been joined by retired Supreme Court Justice Sandra Day O’Connor in the attack on judicial elections. This article offers, by contrast, a look at the seldom-heard arguments in favor of electing judges, and raises significant questions about the alternatives urged by some of the critics....

'In the matter of the Amendment of SCR 13.015 and SCR 13.045 Governing the Assessment on Attorneys for WisTAF' 2008 WI 18

On March 25, 2008 the Wisconsin Supreme Court entered an order [html/pdf] in this rules proceeding (07-06). The order extends the $50 per year WisTAF assessment to judges.

(See SCR Ch. 13 and earlier posts on the open administrative conference and hearing and petition)

'Nichols v. Progressive Northern Ins. Co.' 2008 WI 20

On March 25, 2008, the Wisconsin Supreme Court issued its opinion in this case (2006AP364) reversing the Court of Appeals [unpublished opinion].
Opinion by Justice Crooks
Concurrence by Chief Justice Abrahamson, joined by Justice Butler

(See post on grant of review)

Social Host Liability for Underage Drinking, by Mark R. Hinkston, Wisconsin Lawyer, June 2008

Torts :Underage Drinking - Social Hosts
Supreme Court Digest, by Prof. Daniel D. Blinka and Prof. Thomas J. Hammer, Wisconsin Lawyer, May 2008

Insurance/ Common Law Negligence/ Public Policy/ Duty Of Care
Week of March 24, 2008

Liability for teen drinking party denied: Allowing recovery would have no logical stopping point, by David Ziemer, Wisconsin Law Journal, March 28, 2008

Torts: Social host liability, Wisconsin Law Journal case digest

2 not liable in girl's crash after party at their house, by Marie Rohde, with Patrick Marley, Milwaukee Journal Sentinel, March 26, 2008

See Everyone's Business: Emerging Issues in the Wisconsin Supreme Court (2008) by Rick Esenberg, p. 8

Interactive Chat with Louis Butler, State Supreme Court candidate

This March 21, 2008 Milwaukee Journal Sentinel Q&A includes

Q: Daniel of Milwaukee - Good afternoon, Mr. Justice. In remarks to the Milw. Bar Assn., you described your method of statutory interpretation as textualist in the mold of Scalia & Black. Do you approach constitutional and/or administrative law cases in the same way you approach statutory construction?

A: Louis Butler - Daniel, thank you for the question. In the interpretation of administrative law, and rules governing administrative agencies, our process is essentially the same as statutory construction. However, there is a difference, in that we do provide deference to administrative agencies in certain circumstances. With respect to interpreting the constitution, that is complex -- while we look at the language of the founding fathers, we must also look at the historical foundations of our constitution and the intent of our founding fathers.

Update: Michael Gableman March 26, 2008 chat transcript

Grisham's Judicial Appeal

Collin Levy on The Appeal in The Wall Street Journal, March 20, 2008

(see this earlier post)

State Court Docket Watch March 2008 - Special Education Issue

The latest issue of this Federalist Society publication was posted March 19, 2008

Few areas of law are the source of more contentious litigation than education cases, particularly regarding school financing and school choice. The decisions issued by courts in these cases directly impact the lives of students, parents, teachers and taxpayers in every state in which they are decided. This issue looks at two particular sub-sets of education cases: those dealing with judicially compelled or managed state aid to public schools and those dealing with school choice and voucher programs. In each category, this issue analyzes national data, then looks at specific merit selection (also known as "Missouri Plan") states where courts have issued "activist" decisions.

This Week in Liberal Judicial Activism: Week of March 24, 2008

Ed Whelan at Bench Memos.

Mr. Whelan was the featured speaker at our chapter's March 8, 2007 luncheon.

In court race, key issues may hang in balance

In the Milwaukee Journal Sentinel, March 23, 2008

In the April 1 election, Wisconsin voters will give Louis Butler or Michael Gableman a 10-year term on the state Supreme Court - a court that could decide such important future cases as the constitutionality of school-aid formulas and whether the state Constitution was legally rewritten to ban gay marriages.

As a result, the race has attracted the attention of third-party groups that will spend millions of dollars before it's over, hoping to sway voters with TV ads that have saturated the airwaves. On some key issues, the seat is viewed as one that could define the balance of the court.

The two have distinctly different ideas about the judiciary and the role of Supreme Court justices.

Butler touts experience as a judge, voting record on court and Law enforcement backing is centerpiece of Gableman run, both by Stacy Forster

In the Crossroads opinion section, People want public funding of court races by Mike McCabe is executive director of the Wisconsin Democracy Campaign, and Outside ads, messy as they are, give voters substance, by John Coleman, a professor of political science at the University of Wisconsin-Madison


Update: Voters urged to ignore ads in Supreme Court race by Scott Bauer, Associated Press, in the Wiscosin State Journal

...the race is seen as crucial to the future of the court and could tilt the ideological balance from a 4-3 liberal-leaning majority to a 4-3 conservative-leaning majority.

...

The court 's makeup will help decide how it rules on major cases in the coming years ...

Such cases could include a challenge to the state's new cap of $750,000 on medical malpractice damages, a lawsuit seeking benefits for the gay and lesbian partners of public employees and a case seeking to bar the transfer of $200 million from a state malpractice fund for other purposes.

(via WisPolitics)


Update 2: Ask questions in this high-stakes state Supreme Court race, op-ed by Tim Casey and Katie Longley, The Daily Telegram, Superior, March 22, 2008


Update 3: Supreme Court candidate questionnaires

The Milwaukee Journal Sentinel sent a questionnaire to candidates for state Supreme Court.

Louis Butler (inc.) and Michael Gableman

Their answers will be used by the editorial board when it decides which candidates to endorse for the April 1 election.

Natural Law

Article by Robert P. George in the Harvard Journal of Law & Public Policy, Volume 31, Number 1, Winter 2008, pp. 171-196

Mr. George was the featured speaker at our chapter's March 30, 2000 event.

Legislative Officer Succession:

Part III - A Constitutional Conjecture, by Seth Barrett Tillman

Engage Volume 9, Issue 1, February 2008

The latest issue of this publication by the Federalist Society's practice groups has been posted.

Miller Baker on 'Washington State Grange v. Washington State Republican Party'

SCOTUScast audio March 20, 2008

On March 18, 2008, the [United States Supreme] Court decided the case of Washington State Grange v. Washington State Republican Party. The Court held that Washington's modified blanket primary system does not on its face violate the First and Fourteenth Amendments' right to freedom of association by denying political parties control over which candidates to endorse. Miller Baker of McDermott Will & Emery discusses the case.

Constitutional Law: Freedom of association, Wisconsin Law Journal case digest

Supreme Court Opinion, March 21, 2008

Disciplinary matter only.

Wisconsin Supreme Court needs volunteers:

Lawyers and public members statewide sought for committee service

Our State Bar's report quotes Chief Justice Abrahamson,

The court relies on volunteers, both lawyers and nonlawyers, because of their diverse expertise and community presence, to serve on our numerous committees and boards. It’s a steep hill to find 300-plus volunteers annually, and currently several committees and boards are operating without full representation. I urge lawyers to volunteer and to speak with their community leaders about serving – even if only for a single term.

Court of Appeals opinions week of March 17, 2008

(We're trying this new format for these.)

Opinions March 18, 2008


Opinions March 19, 2008

including 'Donaldson v. Town of Spring Valley' (2007AP1418)
Towns can ban billboards along state highways: Statutes don’t preempt local laws, by David Ziemer, Wisconsin Law Journal, March 25, 2008


Opinions March 20, 2008

Wisconsin Law Journal current Case Digests

CaseLaw Express, Week of March 17, 2008

'Spitzer v. United States' No. 09-102 (2010)

Michael Stokes Paulsen at Balkinization with an opinion from the way in advance sheets

This case presents the issue we carefully reserved in Lawrence [v. Texas, 539 U.S. 558 (2003)]. See Slip Op. at 18 (noting that that case did "not involve . . . prostitution").

(via Instapundit)

Supreme Court Inc.

Jeffrey Rosen in The New York Times Magazine, March 16, 2008

A generation ago, progressive and consumer groups petitioning the court could count on favorable majority opinions written by justices who viewed big business with skepticism — or even outright prejudice. An economic populist like William O. Douglas, the former New Deal crusader who served on the court from 1939 to 1975, once unapologetically announced that he was "ready to bend the law in favor of the environment and against the corporations."

Today, however, there are no economic populists on the court, even on the liberal wing.

This Week in Liberal Judicial Activism: Week of March 17, 2008

Ed Whelan at Bench Memos.

Mr. Whelan was the featured speaker at our chapter's March 8, 2007 luncheon.

Why do we fear democracy?

Rick Esenberg in the Wisconsin State Journal, March 13, 2008, on The Appeal by John Grisham.

What’s Left

by Scott McLemee, review of Why We're Liberals: A Political Handbook for Post-Bush America by Eric Alterman, The New York Times, March 16, 2008

The challenge, then, is translating this durable but inchoate mass of left-leaning public sentiment into an effective political movement. We might call it the policy problem. Another approach is to ask why, if a majority of Americans are liberal at heart, only a minority identify themselves as liberals. Call it the identity problem — determining why the label “liberal” has so often been used as a term of contempt, often even by people whose opinions ought to lead them to embrace it.

Straight Talk on Suffrage

Christian Schneider at the Wisconsin Policy Research Institute on the article "The Election Process in Wisconsin" in the Blue Book 1958

Challenges to Judicial Independence and the Rule of Law:

A Perspective from the Circuit Courts, by Judge Carolyn Dineen King, U.S. Court of Appeals for the Fifth Circuit, 2007 Hallows Lecture, Marquette Lawyer (Spring/Summer 2008) pp. 48-61


Update: Not-So-Serious Threats to Judicial Independence by William H. Pryor, Jr., 93 Va. L. Rev. 1759 (2007)
(via Southern Appeal)

Sterilization: A Progressive Measure?

by Rudolph J. Vecoli, Wisconsin Magazine of History, Spring 1960

(via Sykes Writes)

A Fragment on Shall and May

by Nora Rotter Tillman and Seth Barrett Tillman

This short paper has some comments on the Constitution's use of the verbs shall and may (and will). We suggest the dominant view needs to be reexamined.

Freedom For Religion

Richard John Neuhaus reviews Liberty of Conscience by Martha Nussbaum, in The New York Sun, February 27, 2008
(via Arts & Letters Daily)


Update: Good Faith, review by Emily Bazelon, The New York Times, March 23, 2008

The Origin and Evolution of Partial Veto Power

Frederick B. Wade in Wisconsin Lawyer, March 2008 on the history of the governor's partial veto under the Wisconsin Constitution and the amendment to it to be voted on in the April 1, 2008 election. The Governor's veto power is set forth in the Wisconsin Constitution Art. V, § 10. The Constitutional Amendment to Be Considered by Wisconsin Voters April 1, 2008 is the subject of the March 2008 issue of Wisconsin Briefs by the Legislative Reference Bureau.

Dickie Scruggs pleads guilty

It's such good news, I think I'll celebrate by smoking a whole pack of cigarettes, and snorting a big line of asbestos!

Board reaffirms president’s authority to appoint ad hoc committees and supports amicus in public access to mental health records case ...

Our State Bar reports on the February 29, 2008 Board of Governors meeting.

On the Wisconsin Judicial Campaign Integrity Committee (WJCIC), and on attorney-client privilege, see these earlier posts on the Wisconsin Law Journal report and the Judicial Campaign Watch press release about the meeting.

On public access to mental health records, the Board voted to approve the Government Lawyers Division request to file an amicus brief in 'Watton v. Hegarty' (see this earlier post).

Finally,

The board set the fiscal year 2009, July 1, 2008 - June 30, 2009, Keller dues at $9.50 per member, under the standard set in SCR 10.03(5). Under Keller [v. State Bar of California, 496 U.S. 1 (1990)], the State Bar cannot use compulsory dues of objecting members for political or ideological activities that are not reasonably related to regulating the legal profession or improving the quality of legal services.

State Budget Woes and the Practice of Law

Our State Bar's executive director George C. Brown in the Inside the Bar column in Wisconsin Lawyer, March 2008

What does this budget situation mean for lawyers and the courts? As of this writing, no solutions have been offered formally, but some legislative leaders have responded by insisting that the state enact no new legislation that would require spending money. This means that efforts to increase private bar rates and to raise indigency standards for public defender cases probably are stalled for the balance of this legislative session.

Our State Bar supports AB434, Compensation Rates, and supports SB321 and AB576, Eligibility for Appointed Counsel.

It also means that efforts to change the law regarding the treatment of 17-year-olds charged with crimes are unlikely to gain any traction until at least next year.

Amid all this fiscal uncertainty there is one bit of positive news. Our State Bar government relations coordinators are confident that the five circuit courts scheduled to open in August 2008 will do so.

Our State Bar supports SB199 and AB393, Circuit Court Branches.

Rules hearings and conference March 14, 2008

Wisconsin Supreme Court

9:30 a.m. open administrative conference 'In the matter of the Definition of the Practice of Law and the Administration of a Rule Defining the Practice of Law' (07-09)
Petition, attachment 1, attachment 2
December 10, 2007 public hearing audio (a.m.), audio (p.m.)
Justices continue to wrestle with law practice petition by Jack Zemlicka, Wisconsin Law Journal, March 21, 2008

9:30 a.m. Public Hearing 'In the matter of the Amendment to SCR 70.14(2) formalizing vice-chairperson position on the Planning and Policy Advisory Committee (PPAC)' (07-14)
Petition

9:30 a.m. Public Hearing 'In the matter of the Proposed Amendment to Wis. Stat. sec. (Rule) 809.18 (Voluntary Dismissal)' (07-15)
Petition


Update: Our State Bar reports Wisconsin Supreme Court tackles consumer protection and the definition of the practice of law, and dismissal of cases pending before the court of appeals

Court of Appeals opinions March 13, 2008

Recommended for publication

State v. Hannon (2007AP1142-CR)
Criminal Procedure: Ineffective assistance, Wisconsin Law Journal case digest

Not recommended for publication

Weidner v. General Motors Corp. (2007AP1642)
Torts: Wrongful death; causation, Wisconsin Law Journal case digest

State v. Diehl (2006AP2860-CR)
Criminal Procedure: Plea withdrawal; ineffective assistance, Wisconsin Law Journal case digest

Petition filed to amend SCR 20:1.15 on trust accounts

A Petition was filed with the Wisconsin Supreme Court on March 12, 2008 by Earl Munson and De Ette Tomlinson of Wisconsin Trust Account Foundation, Inc.
'In the Matter of the Amendment of SCR 20:1.15 Safekeeping Property; Trust Accounts and Fiduciary Accounts' (08-03)


Board supports higher interest rates for IOLTA accounts to support legal services for poor people, WisBar May 21, 2008


Legal service groups could see IOLTA grants decline, Wisconsin Law Journal, May 19, 2008


A Matter of Interest: Bar supports petition to seek higher interest rate for IOLTA accounts, by Jack Zemlicka, Wisconsin Law Journal, May 9, 2008

'State v. Harenda Enterprises, Inc.' 2008 WI 16

On March 13, 2008, the Wisconsin Supreme Court issued its opinion in this case (2005AP1829), reversing the Court of Appeals, 2006 WI App 230, 297 Wis. 2d 571, 724 N.W.2d 434.
Opinion by Justice Bradley
Dissent by Justice Ziegler, joined by Justices Prosser and Roggensack


Administrative Law: Ambiguity - Agency Interpretation
Supreme Court Digest, by Prof. Daniel D. Blinka and Prof. Thomas J. Hammer, Wisconsin Lawyer, May 2008


Environmental Law: Asbestos testing
Wisconsin Law Journal case digest

States can't strip federal courts of jurisdiction

Wisconsin's statute requiring that a lawsuit seeking appraisal of corporate shares be litigated in state court, sec. 180.1330(2), is unconstitutional.

Wisconsin Supreme Court among nation's most influential high courts

The Wisconsin Court System is referring to "Followed Rates" and Leading State Cases, 1940-2005 by Jake Dear and Edward W. Jessen, University of California-Davis Law Review, Volume 40, No. 2, December 2007. The law review article is discussed in a sidebar, Around the U.S., High Courts Follow California’s Lead, to a column by Adam Liptak in The New York Times, March 11, 2008.

Arguments March 13, 2008

Wisconsin Supreme Court

09:45 a.m. J. G., et al. v. Deborah S. Wangard, et al. (2006AP818)
See earlier post on grant of review
Audio

10:45 a.m. Kenneth W. Hornback, et al. v. Archdiocese of Milwaukee (2006AP291)
See earlier post on grant of review
WI Supreme Court Could End 1st Amendment Shield for Clergy Pedophiles, SNAP, the Survivors Network of those Abused by Priests, press release, at The Wheeler Report
Audio
Supreme Court justice recuses himself in church sex abuse cases by Pat Schneider, The Capital Times, posted 3/14/2008 8:27 am
(via WisPolitics)

01:30 p.m. WIREdata, Inc. v. Village of Sussex, et al. (2005AP1473), WIREdata, Inc. v. Village of Thiensville, et al. (2006AP174), and WIREdata, Inc. v. City of Port Washington, et al. (2006AP175)
See earlier post on grant of review
Audio

Court of Appeals opinions March 12, 2008

Recommended for publication

Daniels v. Wisconsin Chiropractic Examining Board (2007AP1072 )
Administrative Law: Due process; chiropractors, Wisconsin Law Journal case digest

Michels Pipeline Construction v. Labor And Industry Review Commission (2007AP607)
Employment: Workers compensation; vocational rehabilitation, Wisconsin Law Journal case digest

Not recommended for publication

State v. Adrian S. (2007AP2438-FT)
Juveniles: Delinquency; search and seizure; weapons pat-down, Wisconsin Law Journal case digest

State v. Klick (2007AP2322-CR)
Motor Vehicles: OWI; due process; judicial recusal, Wisconsin Law Journal case digest

State v. Vanairsdale (2007AP2321-CR)
Motor Vehicles: OAR; stoop and detention, Wisconsin Law Journal case digest

State v. Esposito (2007AP2044-CR)
Motor Vehicles: OWI; prior convictions, Wisconsin Law Journal case digest

Know your client’s business

From the Guide for Counsel in Cases to be Argued before the Supreme Court of the United States (October Term 2007), Part II. E. 1. Preparation

One counsel representing a large beer brewing corporation was asked the following by a Justice during argument: “What is the difference between beer and ale?” The question had little to do with the issues, but the case involved the beer brewing business. Counsel gave a brief, simple, and clear answer that was understood by everyone in the Courtroom. He knew the business of his client, and it showed. The Justice who posed the question thanked counsel in a warm and gracious manner.

(via Orin Kerr at The Volokh Conspiracy)

"Judicial Elections and Free Speech" March 11, 2008

The Milwaukee Lawyers Chapter of the Federalist Society presents a panel discussion on "Judicial Elections and Free Speech", Tuesday, March 11, 2008, noon, at the Milwaukee Athletic Club, 758 North Broadway

Panelists include:
- James Bopp, General Counsel, James Madison Center for Free Speech
- James Sample of the Brennan Center for Justice at New York University Law School
- Richard Esenberg of Marquette University Law School (and of Shark and Shepherd)

Cost: $10 ($5 students). Lunch will be served.

R.S.V.P. by email.


Some background: Judges can have no constituents by Thomas J. Basting, Milwaukee Journal Sentinel, January 20, 2008, and Improper role for state Bar by Don Daugherty, Rebecca Bradley, David Simon and Daniel Kelly, Milwaukee Journal Sentinel, January 20, 2008


P.S. Outside influences enter state Supreme Court race by Jack Zemlicka, Wisconsin Law Journal, February 27, 2008, includes comments from Mr. Sample, Mr. Bopp, and Mr. Esenberg.


P.P.S. Brownie points at Plaisted Writes, In the Belly of the Beasts


Update: Daniel Bice reports in the Milwaukee Journal Sentinel, March 6, 2008, Judge seeks right to be openly political. James Bopp is representing Judge John Siefert of the Circuit Court for Milwaukee County in a challenge to Wisconsin's prohibition against judges being members of political parties. [SCR 60.06(2)(b)1.]
More: Milwaukee judge wants a party: Siefert files federal lawsuit challenging prohibition against joining political party, and Milwaukee’s chief judge doesn’t want to join the party, by Jane Pribek, Wisconsin Law Journal, March 13, 2008


Update 2: Justice for Sale, by James Sample, The Wall Street Journal, March 22, 2008

A Giant Among Its Peers

Our State Bar's president Thomas J. Basting Sr. on our State Bar in his President's Column in our State Bar's magazine, Wisconsin Lawyer, March 2008

Court of Appeals opinions March 11, 2008

Not recommended for publication

State v. Laura R. (2007AP2455)
Juveniles: Delinquency; criminal trespass, Wisconsin Law Journal case digest

State v. Putnam (2007AP1666-CR)
Search and Seizure: Warrantless earch; apparent authority, Wisconsin Law Journal case digest

State v. Brown (2007AP1044-CR)
Criminal Procedure: Ineffective assistance, Wisconsin Law Journal case digest

Lee v. Veith (2006AP1922)
Family: Property division; modification, Wisconsin Law Journal case digest

Crowded ballots mean higher turnout for State Bar elections

Jack Zemlicka reports in the Wisconsin Law Journal, March 10, 2008.

Don't Sell Ads on Your Blog

or even have a tipjar, says Eugene Volokh at The Volokh Conspiracy.

...many homeowner's insurance policies cover you for libel, invasion of privacy, and the like, including for the costs of defending the lawsuits. But they generally expressly exempt liability that's based on your "business pursuits," which may include even those pursuits on which you make a pittance.

So check your insurance policy...

Debating philosophies

High court forum gets heated

Stacy Forster reports in the Milwaukee Journal Sentinel on the Wisconsin Supreme Court candidates forum in Dodgeville.

This Week in Liberal Judicial Activism: Week of March 10, 2008

Ed Whelan at Bench Memos.

Mr. Whelan was the featured speaker at our chapter's March 8, 2007 luncheon.

Justices decry outside campaign ads

Special interest groups' commercials dominate on TV

Stacy Forster reports in the Milwaukee Journal Sentinel, March 9, 2008.

Both Justice Louis Butler and Burnett County Circuit Judge Mike Gableman have decried the ads against them.

Campaign numbers confusion

Tony Anderson at Wisconsin Law Journal, March 7, 2008

Retired Appeals Court Judge Neal Nettesheim Joins WJCIC

Judicial Campaign Watch press release March 7, 2008

Arguments and Hearings week of March 9, 2008

March 13, 2008 Wisconsin Supreme Court arguments

09:45 a.m. J. G., et al. v. Deborah S. Wangard, et al. (2006AP818)
See earlier post on grant of review

10:45 a.m. Kenneth W. Hornback, et al. v. Archdiocese of Milwaukee (2006AP291)
See earlier post on grant of review

01:30 p.m. WIREdata, Inc. v. Village of Sussex, et al. (2005AP1473), WIREdata, Inc. v. Village of Thiensville, et al. (2006AP174), and WIREdata, Inc. v. City of Port Washington, et al. (2006AP175)
See earlier post on grant of review


March 14, 2008 Wisconsin Supreme Court rules hearings and conferences

9:30 a.m. open administrative conference 'In the matter of the Definition of the Practice of Law and the Administration of a Rule Defining the Practice of Law' (07-09)
Petition, attachment 1, attachment 2
December 10, 2007 public hearing audio (a.m.), audio (p.m.)

9:30 a.m. Public Hearing 'In the matter of the Amendment to SCR 70.14(2) formalizing vice-chairperson position on the Planning and Policy Advisory Committee (PPAC)' (07-14)
Petition

9:30 a.m. Public Hearing 'In the matter of the Proposed Amendment to Wis. Stat. sec. (Rule) 809.18 (Voluntary Dismissal)' (07-15)
Petition

Bar Association to host candidate forums

Small Business Times reported

... On Wednesday March 12 from 12- 1 p.m. the forum will include candidates for Wisconsin Supreme Court, Wisconsin Court of Appeals- District 1 and Milwaukee County Circuit Court. Louis Butler and Michael Gableman will appear for the Wisconsin Supreme court, Patricia Curley will appear for Wisconsin Court of appeals.

The following will appear for the Milwaukee County Circuit Court: Francis Wasielewski, Branch 17; Bill Brash, Branch 21; Kevin E. Martens, Branch 27; Daniel A. Noonan, Branch 31; Michael D. Guolee, Branch 32; Rebecca Dallet and Jeffrey Norman; Branch 40; John J. DiMotto, Branch 41.

The forums will take place at the Milwaukee Bar Association, 424 E. Wells St., Milwaukee.

Supreme Court Election: The Candidates Speak

The Wisconsin Taxpayer, January 2008

(via The Wheeler Report)

Electing Judges: Save Us From the Horrors of Democracy

Christian Schneider at Wisconsin Policy Research Institute

Court of Appeals opinions March 6, 2008

Not recommended for publication

Columbia County v. Arendt (2007AP1523)
Minor in Possession: Sufficiency of Evidence, Wisconsin Law Journal case digest

State v. Danforth (2007AP246)
Criminal Procedure: Ineffective assistance, Wisconsin Law Journal case digest

Cooper v. American Family Mutual Ins. Co. (2006AP2394)
Civil Procedure: Frivolous lawsuits; safe harbor provisions, Wisconsin Law Journal case digest

'State v. Harris' 2008 WI 15

(2006AP882-CR) March 6, 2008
Opinion by Chief Justice Abrahamson for a unanimous court affirming the Court of Appeals

Audio of January 17, 2008 oral argument

(see earlier post on grant of review)

Criminal Procedure: Discovery - State's Failure to Disclose Discoverable Materials - Remedy
Supreme Court Digest, by Prof. Daniel D. Blinka and Prof. Thomas J. Hammer, Wisconsin Lawyer, May 2008

Criminal Procedure: Discovery, Wisconsin Law Journal case digest

Cumulative effect of harmless errors is still harmless by David Ziemer, Wisconsin Law Journal, March 6, 2008

Criminal Law, Discovery, New Trial, Evidence, Constitutional Law-Due Process, CaseLaw Express, Week of March 3, 2008

Board members question Bar sponsorship of campaign committee

Jack Zemlicka reports in the Wisconsin Law Journal, March 5, 2008

(see this earlier post)


Update: Voelker field questions about electronic filing. Jack Zemlicka reports further in the Wisconsin Law Journal, March 5, 2008, on a presentation by A. John Voelker, Director of State Courts, to our State Bar's February 29, 2008 Board of Governors meeting.

(see this earlier post)

On another item,

The board hesitantly answered the American Bar Association’s call to support legislation designed to strengthen attorney-client privilege.

Rather than join local bar associations from 10 other states in backing U.S. Senate Bill 186 [companion to HR3013] , which seeks to reverse the recent trend of pressuring companies to waive attorney-client privileges, the State Bar drafted a revised policy statement.

Court of Appeals opinions March 5, 2008

Recommended for publication

Rogers v. Saunders (2007AP306)
Torts: Medical malpractice; nurses, Wisconsin Law Journal case digest
Staffing agency is not liable for nurse's negligence, by David Ziemer, Wisconsin Law Journal, March 10, 2008

Not recommended for publication

State v. Gobis (2007AP2039-CR)
Motor Vehicles: Implied consent, Wisconsin Law Journal case digest

Staege v. Town of Norway (2007AP231)
Municipalities: Zoning and planning, Wisconsin Law Journal case digest

Diarmuid O'Scannlain "Lawmaking and Interpretation" March 10, 2008

Marquette University Law School presents this year's Hallows Lecture.

Hon. Diarmuid F. O'Scannlain of the United States Court of Appeals for the Ninth Circuit will speak on "Lawmaking and Interpretation: The Role of an Article III Judge in the Constitutional Framework".

March 10, 2008 4:00 p.m. in Room 307 of the Law School

Full event details (R.S.V.P. extended to March 7th)


Judge O'Scannlain was the featured speaker at our chapter's fourth annual Constitution Day celebration on September 29, 1998.

Arguments March 5, 2008

Wisconsin Supreme Court

9:45 a.m. C. Coakley Relocation Systems v. City of Milwaukee (2006AP2292)
See earlier post on grant of review

10:45 a.m. State v. Carmen L. Doss (2006AP2254-CR)
See earlier post on grant of review

1:30 p.m. State v. Alexander Caleb Grunke (2006AP2744-CR), State v. Nicholas Owen Grunke {2006AP2745-CR), and State v. Dustin Blake Radke (2006AP2746-CR)
See earlier post on grant of review
Does sex assault law apply to necrophilia? by Tony Anderson, Wisconsin Law Journal, March 4, 2008

Packers quarterback Brett Favre is retiring

The Green Bay Press-Gazette relays reports.

Update:

He lost several feet of intestine after an automobile accident in college but had more guts than most.
--Drew Sharp

If given a choice, who wouldn't rather have Brett Favre for 17 years than a large intestine?
--Christian Schneider

Update 2: retrospective at The Onion

Court of Appeals opinion March 4, 2008

Not recommended for publication

State v. Rozenski (2006AP3124-CR)
Criminal Procedure: Ineffective assistance; prosecutorial misconduct, Wisconsin Law Journal case digest

Supreme Court opinion March 4, 2008

Disciplinary matter only.

Arguments March 4, 2008

Wisconsin Supreme Court

9:45 a.m. State v. Bruce Duncan MacArthur (2006AP1379-CR)
See earlier post on grant of review
Audio
Prosser steps aside in priest case by Marie Rohde, Proof and Hearsay, Milwaukee Journal Sentinel

10:45 a.m. Ramachandra Rao, M.D. v. WMA Securities, Inc., et al. (2006AP813)
See earlier post on grant of review
Audio

1:30 p.m. State v. Angela A. Keyes {2004AP1104-CR) and State v. Matthew E. Keyes (2004AP1105-CR)
See earlier post on grant of review

This Week in Liberal Judicial Activism: Week of March 3, 2008

Ed Whelan at Bench Memos.

Mr. Whelan was the featured speaker at our chapter's March 8, 2007 luncheon.

State Bar Association Board of Governors Endorses Creation of Judicial Campaign Committee

Judicial Campaign Watch press release February 29, 2008

State Bar of Wisconsin President Tom Basting thanked members of the association’s Board of Governors for endorsing his decision to create the Wisconsin Judicial Campaign Integrity Committee (WJCIC) to help monitor the 2008 state Supreme Court race. The 49-member board manages and directs the Bar’s activities. "I am grateful that my peers from across Wisconsin and all practice areas recognize the unique and important role the Bar is playing in educating voters about the functions of the judiciary and judicial elections in our system of government,” Basting said.

Board members expressed strong support for the WJCIC and its mission at the body’s February 29 meeting at the State Bar Center in Madison.

So, where next?

Rick Esenberg in the Milwaukee Journal Sentinel.

Does the passing of William F. Buckley Jr. coincide with the end of a movement that he did so much to create?

Mr. Esenberg was the featured speaker at our chapter's March 26, 2007 luncheon.

March arguments and hearings

March 4, 2008 Wisconsin Supreme Court arguments

9:45 a.m. State v. Bruce Duncan MacArthur (2006AP1379-CR)
See earlier post on grant of review

10:45 a.m. Ramachandra Rao, M.D. v. WMA Securities, Inc., et al. (2006AP813)
See earlier post on grant of review

1:30 p.m. State v. Angela A. Keyes {2004AP1104-CR) and State v. Matthew E. Keyes (2004AP1105-CR)
See earlier post on grant of review


March 5, 2008 Wisconsin Supreme Court arguments

9:45 a.m. C. Coakley Relocation Systems v. City of Milwaukee (2006AP2292)
See earlier post on grant of review

10:45 a.m. State v. Carmen L. Doss (2006AP2254-CR)
See earlier post on grant of review

1:30 p.m. State v. Alexander Caleb Grunke (2006AP2744-CR), State v. Nicholas Owen Grunke {2006AP2745-CR), and State v. Dustin Blake Radke (2006AP2746-CR)
See earlier post on grant of review


March 13, 2008 Wisconsin Supreme Court arguments

09:45 a.m. J. G., et al. v. Deborah S. Wangard, et al. (2006AP818)
See earlier post on grant of review

10:45 a.m. Kenneth W. Hornback, et al. v. Archdiocese of Milwaukee (2006AP291)
See earlier post on grant of review

01:30 p.m. WIREdata, Inc. v. Village of Sussex, et al. (2005AP1473), WIREdata, Inc. v. Village of Thiensville, et al. (2006AP174), and WIREdata, Inc. v. City of Port Washington, et al. (2006AP175)
See earlier post on grant of review


March 14, 2008 Wisconsin Supreme Court rules hearings and conferences

9:30 a.m. open administrative conference 'In the matter of the Definition of the Practice of Law and the Administration of a Rule Defining the Practice of Law' (07-09)
Petition, attachment 1, attachment 2
December 10, 2007 public hearing audio (a.m.), audio (p.m.)

9:30 a.m. Public Hearing 'In the matter of the Amendment to SCR 70.14(2) formalizing vice-chairperson position on the Planning and Policy Advisory Committee (PPAC)' (07-14)
Petition

9:30 a.m. Public Hearing 'In the matter of the Proposed Amendment to Wis. Stat. sec. (Rule) 809.18 (Voluntary Dismissal)' (07-15)
Petition

April 1, 2008 Court of Appeals argument at Dist. I, 633 W. Wisconsin Ave., #1400, Milwaukee

11:00 a.m. State v. Adrian J. Jackson (2007AP1362-CR)