Similarities between 'Crawford' and 'McConnell'

Jonathan Adler at The Volokh Conspiracy

In McConnell [v. FEC], the Court held that the government had an important interest in preventing "the eroding of public confidence in the electoral process through the appearance of corruption," that could justify regulation of campaign contributions and campaign-related speech. Similarly in Crawford [v. Marion County], the Court held that public concerns about election integrity were a legitimate government interest that could justify a voter identification requirement. In each case, this interest is independent of any actual threat to campaign or election integrity, and arguments that the measures in question are unwise or ineffective at preventing actual threats are not particularly responsive. What matters is that the measures in question have the potential to increase public confidence in the electoral system as a whole.

Law Day 2008 celebrates "The Rule of Law"

A message from Shirley S. Abrahamson
Chief Justice, Wisconsin Supreme Court

Police can release DMV information

The Associated Press reported in (or is it at?) The Capital Times,

Police responding to public record requests can legally release personal information they've obtained from motor vehicle records, Attorney General J.B. Van Hollen said in an opinion released Tuesday.

The opinion is the first attempt to reconcile Wisconsin's open records law with the federal Driver's Privacy Protection Act (DPPA), which limits the release of personal information in state motor vehicle records. ...

(via WisPolitics)

Sandra Day O'Connor to speak

Marie Rohde reported in Proof and Hearsay

Sandra Day O'Connor, the first woman to serve on the U.S. Supreme Court, will be the keynote speaker at the May 7 luncheon kicking off the Milwaukee Bar Association's 150th anniversary celebration.

... The event, which will be held at the Midwest Express Center, is almost sold out according to Jim Temmer, the bar's executive director.

Rebel with a Cause

Jack Zemlicka reports in the Wisconsin Bar Journal, April 29, 2008, on reaction from some of our State Bar's leaders to Douglas W. Kammer as its president-elect, elected on a one-issue platform of ending mandatory membership in the State Bar.

Current State Bar President Thomas J. Basting, Sr., criticized Kammer for his narrow focus.

"He apparently could care less about what the bar does for the court or the members of the bar and the public," said Basting. "He’s a one-trick pony, and fortunately it is the Board of Governors who will dictate the policies of the bar, not Mr. Kammer."

Bertz [Thomas W. Bertz, who finished third], who favors a mandatory bar and is a member of both the Board of Governors and the Executive Committee, said the composition of both is similar to when Levine presented the idea.

Mr. Kammer's election might, however, produce other changes.

Basting suggested the State Bar adopt a "run-off election" whenever there are three or more candidates. Choosing between the two highest vote getters would assure a president would be elected by more than 50 percent of the vote.

Update: An easier solution, by David Ziemer, Wisconsin Law Journal, April 30, 2008

Four former judges up for two spots on Goverment Accountability Board

Fifteen judges had applied (see this earlier post). Mike Miller now reports in The Capital Times.

The Board replaces the old Election Board and Ethics Board and is comprised of six former judges with the members being nominated by the Government Accountability Candidate Committee, comprised of four current Appeals Court judges. That committee nominated former Eau Claire County Circuit Judge Thomas Barland, former Winnebago County Circuit Court Judge Robert Haase, former Milwaukee county Circuit Judge Victor Manian and former Court of Appeals Judge Gordon Myse.

(via WisPolitics)

Supreme court moves on multijurisdictional practice and gives bar nod to further study unauthorized practice of law petition, among other actions

Our State Bar reports on Wisconsin Supreme Court actions.

The court tentatively adopted a number of amendments to SCR 20:5.5, (Petition 06-06), pertaining to the occasional practice of law in Wisconsin by lawyers who are not licensed to practice here but are licensed in another state. ...

The court unanimously supported a State Bar request to grant the bar more time to analyze two proposals currently before the court that resulted from a March 14 administrative conference on State Bar Petition 07-09. ...

The court unanimously denied State Bar Petition 04-03 to establish a system for licensure and regulation of paralegals in Wisconsin. ...

The court adopted in principle a statute governing the use of videoconferencing in the courts, as requested in Petition 07-12. ...

The court continued its discussion of Rules Petition 08-01: In the matter of the Amendment of Rules of Pleading, Practice and Procedure: Wis. Stat. ch. 756, Juries. ...

Update:

Justices adopt multijurisdiction petition, by Jack Zemlicka, Wisconsin Law Journal, May 1, 2008

Supreme Court will wait before considering UPL exemptions, by Jack Zemlicka, Wisconsin Law Journal, May 1, 2008

'In the matter of Proposed Amendment to Wis. Stat. § 887.26' 2008 WI 32

James C. Alexander filed the Petition June 15, 2005 on behalf of the Judicial Council, regarding requirements for depositions conducted outside the Wisconsin. (See current Wis. Stat. § 887.26.) The Wisconsin Supreme Court held a hearing November 14, 2005. Mr. Alexander filed an Amended Petition January 26, 2006. The Wisconsin Supreme Court entered this order today effective July 1, 2008.

'In the matter of Proposed Amendment to Wis. Stat. § 887.26' (05-06)

'In the matter of SCR 70.40' 2008 WI 31

The Wisconsin Supreme Court entered this order today correcting typographical errors in this Supreme Court Rule.

'In the matter of SCR 70.40' (08-12)

State Bar welcomes new members, 40 lawyers attend swearing in ceremonies

With remarks by Chief Justice Shirley Abrahamson and our State Bar's President Thomas Basting.

Steven Teles, 'The Rise of the Conservative Legal Movement'

Posts on this book at The Volokh Conspiracy.

Making Your Case: The Art of Persuading Judges

by Antonin Scalia and Bryan A. Garner, excerpted in ABA Journal May 2008

and Justice Scalia On The Record: 60 Minutes' Lesley Stahl Interviews The Supreme Court Justice About His Public And Private Life, April 27, 2008

"But what you're saying is, let's try to figure out the mindset of people back 200 years ago? Right?" Stahl asks.

"Well, it isn't the mindset. It's what did the words mean to the people who ratified the Bill of Rights or who ratified the Constitution," Scalia says.

(via Althouse)


Update: Tony Anderson on an interview of Justice Scalia by Nina Totenberg for National Public Radio, Scalia advocates a "dead" U.S. Constitution, Wisconsin Law Journal, April 28, 2008

President-elect post goes to Kammer, Pennow wins secretary, Hanan wins Judicial Council

Our State Bar reports that Douglas W. Kammer of Portage has been elected to the post of President-elect, defeating the slated candidates Thomas W. Bertz of Stevens Point and Kenneth A. Knudson of Superior.

Kammer received 1,871 votes, Knudson received 1,764 votes, and Bertz received 1,646 votes. Kammer’s term begins July 1 when Diane S. Diel, solo practitioner, Milwaukee, succeeds Thomas J. Basting Sr., Madison, as State Bar president.

In his campaign statement Mr. Kammer said,

There is only one issue in this campaign: Does the majority want to end mandatory Bar membership?

Mark A. Pennow of Green Bay defeated Pamela J. Veith of Eau Claire for State Bar Secretary 2,527 to 2,156. Beth Ermatinger Hanan of Milwaukee defeated Kevin J. Lyons of Milwaukee a Judicial Council seat 2,444 to 2,192.

This Week in Liberal Judicial Activism: Week of April 28, 2008

Ed Whelan at Bench Memos.

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

The new old Capital Times

The Capital Times ceases publication as a print daily, and sums up editorially.

Not much has changed in the 90 years since Evjue [founder William T. Evjue] started the presses.

A Tale of Two Sovereigns

A Tale of Two Sovereigns: The Implications of Dairyland Greyhound Park, Inc. v. Doyle on Tribal and State Self-Government, by Kyle S. Conway, 2007 Wisconsin Law Review 1313 (opinion linked at this earlier post)

Supreme Court adopts MJP petition

Jack Zemlicka in the Wisconsin Law Journal, April 25, 2008

On April 24, the court revised aspects of SCR 20:5.5 and SCR 10.03(4) regarding the unauthorized practice of law and multijurisdictional practice to allow judges discretion when attorneys apply for pro hoc vice.

...

The court unanimously adopted, in principle, a petition to govern the use of videoconferencing in the courts...

...

The court also approved changes to Wis. Stats. Ch. 756, regarding the governing and managing of juries in the circuit courts.

Judge Reggie Walton "Overcoming Educational Deficiencies" May 1, 2008

Judge Reggie B. Walton of the U.S. District Court for the District of Columbia will be the keynote speaker at the third annual Literacy Luncheon and Report to the Business Community, May 1, 2008 at the Italian Conference Center. His topic will be "Overcoming Educational Deficiencies: Conquering Illiteracy Must Be a National Priority."

Voters deserve say on judges

Michael D. Dean of the First Freedoms Foundation in the Milwaukee Journal Sentinel, April 25, 2008

an expansionist judiciary removes societal decisions from the people at large, enabling outcomes to which they demonstrably would not otherwise consent.

Since the periodic need to face those pesky voters is the only barrier separating an aggressive judiciary from untrammeled freedom to order up its desired outcomes, it is hardly surprising that the coalescing legal oligarchy would like to remove from the voters' hands yet one more decision: determining who will be the judges.

New court ruling removes funding source from DARE program

Jo Anne Kileen for Lee Newspapers in the LaCrosse Tribune, April 25, 2008

A new law became effective March 27 that repeals the ability of judges to force a defendant or make a contribution to a crime-prevention organization as an alternative to sentencing or judgment.

In a letter to municipal court judges, the Supreme Court of Wisconsin stated, “Although the organizations that receive the funds are often valuable to the community, this funding mechanism creates the potential for inappropriate prosecutorial charging decisions, the appearance of fundraising or favoritism by the judges and a general perception by the public that favorable outcomes in criminal cases can be bought by defendants who can afford them.”

(via The Wheeler Report)

Ex-judges apply for board of ethics spot

Steven Walters reports in the Milwaukee Journal Sentinel, April 25, 2008

Former state Court of Appeals Judge Charles Schudson is one of 15 ex-judges who met a Thursday deadline to apply to serve on the new state board that investigates ethics and campaign-finance violations.

The vacancies resulted because judges are not eligible for nonjudicial offices during the term to which they were elected, even if they resign their judgeship, see this earlier post. Judge James Mohr, one of the two judges whose resignations created the vacancies, re-applied. Other applicants included,

Former District 3 Court of Appeals Chief Judge Gordon Myse; Raymond Gieringer, Adams County; Richard Greenwood, Brown County; Robert Haase, Winnebago County; Thomas Barland, Eau Claire County; Timothy Vocke, Vilas County; Willis Zick, Waukesha County; Dennis Costello, Racine County; and Robert Crawford and Victor Manian, both of Milwaukee County.

In addition,

Three other ex-judges applied, although their judicial terms have not yet expired: Dennis Montabon, La Crosse County; Robert DeChambeau, Dane County; and Robert Kinney, Oneida County.

Court of Appeals opinions week of April 21, 2008

Errata April 25, 2008


Opinions April 24, 2008


Opinions April 23, 2008

including State v. Weiss (2007AP000778-CR)
Sex-assault verdict rejected: Appeals court cites prosecutor tactics, by Dan Benson, Milwaukee Journal Sentinel, April 24, 2008


Opinions April 22, 2008


CaseLaw Express, Week of April 21, 2008


Wisconsin Law Journal current case digests

Arguments week of April 28, 2008

April 29, 2008 Wisconsin Court of Appeals arguments at Dist. I, 633 W. Wisconsin Ave., #1400, Milwaukee

10:30 a.m. State v. Devaillous R. Hankins (2007AP1421-CR)

Birth control denial revisited

Marie Rohde reported in the Milwaukee Journal Sentinel, April 24, 2008

The Thomas More Society, a law firm based in Chicago that represents abortion opponents, on Wednesday asked the Wisconsin Supreme Court to hear an appeal of a disciplinary action brought against a pharmacist who refused to fill a prescription for birth control because of his religious beliefs.

Here's the Court of Appeals opinion, Noesen v. State of Wisconsin Dept. of Regulation and Licensing, (2006AP1110)

At the Thomas More Society, Thomas More Society Files Lawsuit Protecting Pharmacist’s Rights of Conscience


Update: 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

Supreme Court declines to license and regulate paralegals

Our State Bar's Board of Governors had filed a Petition February 13, 2004 asking

this Honorable Court to establish a system for the licensure and regulation of paralegals in Wisconsin.

The court held a public hearing October 27, 2004 [hearing audio] and held an open administrative conference April 7, 2007. The court today entered this order denying the petition.

'In the matter of the Licensure and Regulation of Paralegals' (04-03)

Discharging Disabled Employees Under No-Fault Attendance Policies

by John C. Carlson Jr., Wisconsin Lawyer, April 2008, on Stoughton Trailers Inc. v. LIRC, 2007 WI 105, 303 Wis. 2d 514, 735 N.W.2d 477 (opinion linked at this earlier post)

Employers should take care when discharging disabled employees under a no-fault attendance policy. To effectively counsel their business clients, attorneys need to know why the Wisconsin Supreme Court recently awarded a disabled employee the maximum remedy under the Wisconsin Fair Employment Act for an employer's discriminatory application of a no-fault attendance policy.

State Court Judicial Selection

Address by Diane S. Sykes to the Eastern District [of Wisconsin] Bar Association, April 17, 2008

(via John Diedrich at Proof and Hearsay)

Judgepedia

Judgepedia is an online encyclopedia that strives to be a consummate source for authoritative articles, open and respectful discourse, and reputable research for all things judicial.

'The Political Foundations of Judicial Supremacy' by Keith Whittington

Reviewed by Thomas W. Merrill, Engage Volume 9, Issue 1, February 2008

Princeton is probably the most esteemed university in America not to have a law school. It has made up for this deficiency, at least in part, by serving as the home of some of the most astute political scientists specialized in the study of the Supreme Court. The tradition began with Edward Corwin, perhaps the foremost constitutional scholar of the early decades of the twentieth century. Corwin was followed by Walter Murphy, a pioneer in the study of strategic interaction among the justices. The current heir to this title is Keith Whittington, the William Nelson Cromwell Professor of Politics at Princeton. Whittington combines a superb knowledge of Supreme Court history with a sophisticated understanding of the history and dynamics of American political institutions. As a result, his scholarship situates the Court and its decisions in a much broader political context than most lawyers are able to offer. Yet, at the same time, it avoids the reductionism associated with many accounts of the Supreme Court produced by political scientists.....

Mr. Merrill was the featured speaker at our chapter's May 18, 2005 event.

Sounds strangely familiar.

Mrs. Bertholt: You elect judges in the United States?

Chief Judge Dan Haywood: Yes, in some states.

Bertholt: I didn't know that.

Haywood: It's either one of the virtues or one of the defects of our judicial system. I thought it was one of the virtues until last year, when I was defeated.

--Judgment at Nuremburg

Earth Day

This is the only sensible thing we're likely to read or hear today.

WASHINGTON, D.C. - In celebration of Earth Day, the Libertarian Party issued a statement from Executive Director Shane Cory calling for a reduction in government in what he says is the best way to go 'green':

"The best way to 'go green' is fixing environmental problems at their source, and that source is government. The federal government is by many accounts the largest polluter in the United States. By reducing the size of government and recycling redundant and unnecessary government bureaucracies, we will shrink the size of our 'government footprint,' and in turn, help our environment. More government is not the solution to environmental woes -- it's the problem. Until we reduce the size of government, our environmental problems will continue to grow."

Drunk driving is not a violent felony

The Supreme Court's opinion of what constitutes a violent felony under the Armed Career Criminal Act leaves reverses Seventh Circuit law, but provides uncertain guidance regarding other crimes.

In fact, the opinion provided so little guidance that, just five days later, the court granted certiorari to decide whether failure to report to jail is a violent felony.

Had the opinion in the drunk driving case contained any useful guidance, the court could have simply remanded the failure to report case for reconsideration in light of it.

Robert Levy "The D.C. Gun Ban in the Cross-Hairs" April 22, 2008

Robert A. Levy spoke on "The D.C. Gun Ban in the Cross-Hairs: A Discussion of District of Columbia v. Heller" at a noon luncheon Tuesday, April 22, 2008 at the Milwaukee Athletic Club, 758 North Broadway.

Over five years ago, Bob Levy and three other attorneys filed Parker v. District of Columbia, a Second Amendment case on behalf of six local residents who want to defend themselves in their own homes. On March 9, 2007, in a blockbuster opinion, the U.S. Court of Appeals for the D.C. Circuit overturned the city's gun ban - holding that "the Second Amendment protects an individual right to keep and bear arms." A year later, on March 18, 2008, the Supreme Court heard oral argument in Parker (now captioned District of Columbia v. Heller) - the first Second Amendment case to come before the Court since 1939.

Bob Levy is senior fellow in constitutional studies and a member of the board of directors at the Cato Institute, which he joined in 1997 after 25 years in business. He also sits on boards of the Institute for Justice, the Federalist Society, and the George Mason University School of Law. He founded CDA Investment Technologies, a major provider of financial information and software, and was its CEO until 1991. Levy clerked for Judge Royce C. Lamberth on the U.S. District Court in Washington, D.C., and for Judge Douglas H. Ginsburg on the U.S. Court of Appeals for the D.C. Circuit. From 1997 until 2004, Levy was an adjunct professor of law at Georgetown University. He has written numerous articles on investments, law, and public policy. His writing has appeared in the New York Times, Wall Street Journal, USA Today, Washington Post, National Review, and many other publications. Levy has also discussed public policy on national radio and TV programs, including ABC's Nightline, CNN's Crossfire, Fox's The O'Reilly Factor, MSNBC's Hardball, and NBC's Today Show. His next book, co-authored with William Mellor and scheduled for Spring 2008 release, is The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom. Levy received his Ph.D. in business from the American University and his J.D. degree from the George Mason University School of Law.

For more background on the issues, see D.C. Gun Case.

Presented by the Milwaukee Lawyers Chapter and Marquette Law Student Chapter.

GAB should change judicial campaigns

Sen. Jon Erpenbach (D-Waunakee) in The Monroe Times

Judges have no constituency; they write no bills and vote on no laws. Since judges do not participate in legislative decisions, there is the clear ability for illegal money to be banned completely, right now. Since it is illegal to lobby a judge, there is no need for any group to advocate to the public to lobby a judge. In fact, ex-parte communication with a judge is strictly prohibited by state rules, so calling a judge, to tell them they are a scum bag, is illegal.

(via WisOpinion)

Appointing Judges a Supremely Bad Idea

James H. Miller at Wisconsin Policy Research Institute.

When Annette Ziegler was elected, one of the first reactions was to form a committee to dictate what you could and could not do in a campaign for the Wisconsin Supreme Court. The names for that committee were hardly pulled out of a hat. They were part of the Madison establishment, liberal to a fault, that represented no more than the several people who were actually on the committee. Yet during the past year, the media treated these people as if they were actually important. They were not. They simply represented the self-interest of the legal profession in getting to dictate who gets to be a judge.

(via WisOpinion)

Review granted in 'Apple Valley Gardens v. MacHutta'

The Wisconsin Supreme Court has granted review in this case. (2007AP191)

The petitioner in this case asks the Supreme Court to review whether a restriction on the use of a condominium unit, such as a prohibition on renting the unit to others, must be stated in the condominium declaration, or whether such a restriction may be contained in the owners' association's bylaws. Condominium declarations are usually drafted by a condominium developer and filed with the register of deeds; bylaws are adopted and amended from time to time by the unit owners.

Some background: Steven MacHutta developed the Apple Valley Gardens condominium complex in the late 1970s, but apparently had trouble selling some of the units. A declaration of condominium contained, as required by statute, a declaration of purpose and of restrictions on use. The declaration provided, in part, that any rental or lease agreement shall not relieve an owner from his or her obligation to pay common expenses.

The MacHuttas assert that this part of the declaration gives them the affirmative right to rent any of the units they own. Eventually, Steven MacHutta ended up owning 15 units, most of which they leased to tenants. The association (Apple Valley Gardens) contends the sentence grants no such right but merely states, in a negative manner, that if a lease is allowed, an owner is not relieved from all owner obligations.

Steven MacHutta and the association reached an agreement and most of MacHutta's units were sold. Under the agreement, MacHutta ultimately retained one of the units and sold one to his wife, Gloria. She rented it out, leading to another dispute.

In 2002, the association enacted an amendment to a bylaw that required owner occupancy, thereby prohibiting rentals. The bylaw required that when the tenant moved out, the unit had to become owner occupied, like the other units.

When Gloria rented to another tenant despite the association's objection, the association filed a declaratory judgment, requesting enforcement of the owner-occupancy bylaw. The MacHuttas filed counterclaims for breach of contract.

The circuit court granted summary judgment in favor of the association. The Court of Appeals affirmed, concluding that although the Apple Valley declaration did not prohibit units from being rented, it also did not forbid the association from subsequently enacting bylaws to require owner occupancy. [2007 WI App 270] From Waukesha County.

Review granted in 'County of Dane v. LIRC'

The Wisconsin Supreme Court has granted review in this case. (2006AP2695)

This disability claim case examines whether a state agency is entitled to judicial deference when the agency reverses its long-standing interpretation of a statute and implements a new one, even though the statute did not change.

Further, Dane County asks the Supreme Court to consider if the Labor and Industry Review Commission abandoned a reasonable interpretation of "disfigurement" as the term has been used in Wis. Stat. § 102.56 and adopted an unreasonable interpretation.

Some background: Gloria N. Graham slipped and fell while working in food service for Dane County. Graham was awarded 25-percent permanent partial disability. The dispute here is whether Graham's limp that resulted from the fall should qualify for an additional award for disfigurement under the Workers Compensation Act, Wis. Stat. § 102.56 (1), even though there is no amputation, scarring or burns.

The Court of Appeals rejected the county’s claim that its interpretation of disfigurement being limited to amputations, scarring or burns was more reasonable. The Court of Appeals also determined that the LIRC’s current interpretation was a reasonable one, and that LIRC’s prior interpretation in another case had not been more reasonable. [2007 WI App 262] The county argues that review is necessary because the LIRC’s about-face on this issue will have a profound effect on the number of disfigurement awards that will be given to claimants and could potentially be extended for the first time to other alterations in the body's movements. From Dane County.

Review granted in 'State v. Johnson'

The Wisconsin Supreme Court has granted review in this case. (2007AP1114CR and 2007AP1115–CR)

These consolidated criminal cases examine sentencing credits as applied to concurrent sentences. The Supreme Court has been asked to review how a statute and case law apply when a circuit court imposes two concurrent sentences at the same time. More specifically in this case, the Court could decide if the circuit court must apply the same credit toward both sentences in order to ensure that credit on one sentence is not negated by the lack of credit on the concurrent sentence.

Some background: In 2004, Johnson entered guilty plea on a drug offense and was released on bail pending sentencing. In 2005, while awaiting sentencing, he was arrested on a new drug offense. After the second arrest, he remained held on his 2004 case, spending 50 days in custody before being released on bail in his 2005 case. Johnson later pled guilty in his 2005 case.

At a joint sentencing hearing on both cases, Johnson received 50 days credit against one of his two concurrent sentences – the 2005 case. He claims that he is entitled to sentence credit against both sencences to ensure that credit awarded on one sentence is not negated by the lack of credit on the concurrent sentence.

The Court of Appeals rejected this argument, holding that a defendant is entitled to credit on concurrent sentences imposed at the same time only when the custody was "in connection with" both offenses [2008 WI App 34]. From Milwaukee County.

Review granted in 'Blunt v. Medtronic'

The Wisconsin Supreme Court has granted review in this case. (2006AP1506)

This case examines whether state law negligence and product liability claims are pre-empted by federal law where a defective product received FDA pre-market approval, but the manufacturer was not required to sell the defective device because it had also obtained FDA pre-market approval for an alternative, non-defective design.

Some background: Joseph Blunt had a defibrillator manufactured by Medtronic implanted in May of 2004. In early 2005, Medtronic advised physicians of a possible battery shorting problem in the defibrillator. As a precautionary measure, Joseph and his physician decided to remove the device and replace it with an improved Medtronic version. At the time Blunt received his defibrillator, both the original and the model with the better battery were available for implantation, and the FDA had placed no restrictions on selling devices with the original design.

After the surgery, Blunt sued Medtronic, alleging negligence, strict product liability, and a loss of consortium and companionship.

The circuit court sided with Medtronic, which argued that because the defibrillator had been approved by the FDA’s extensive pre-market approval process, the claim was pre-empted by U.S.C. § 360k(a) (2000). The Court of Appeals affirmed [2007 WI App 191].

This petition was held in abeyance pending the U.S. Supreme Court’s decision in Riegel v. Medtronic, Inc., which was issued on Feb. 20, 2008. The U.S. Supreme Court held that the pre-emption clause of the Medical Device Amendments Act barred common law claims challenging the safety or effectiveness of a medical device marketed in a form that received pre-market approval.

(see this earlier post)

From Milwaukee County.

Wisconsin SC accepts Medtronic defibrillator case by Chris Rizo, Legal Newsline, April 21, 2008
(via The Wheeler Report)

Supreme Court accepts four new cases

Posts on the accepted cases are above. Among the denials of review:

Chief Justice Abrahamson dissented in State v. Meilahn (2007AP850)
and Wright v. Wright (2006AP2111) and concurred in Nault v. West Bend Mut. (2007AP1670);

Justice Bradley dissented in State v. Vongphakdy (2007AP104-CR);

Justice Roggensack dissented in State v. Champlain (2006AP2435-CR) and State v. McGuire (2005AP2832-CR);

Justice Butler dissented in State v. Diaz (2007AP1740-CR); and

Justice Ziegler dissented in State v. Edmunds (2007AP933).

Entrenching Activist Liberal Judges

Daniel Suhr at The Triumvirate on Richard S. Brown's proposed judicial nominating commission (see this earlier post).

(via WisOpinion)

This Week in Liberal Judicial Activism: Week of April 21, 2008

Ed Whelan at Bench Memos.

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

'Reapraisals' by Tony Judt

Reappraisals: Reflections on the Forgotten Twentieth Century by Tony Judt


The fate of nations, by Tim Rutten, Los Angeles Times, April 23, 2008

The best of them (and they are very good indeed) deal with some of 20th century Europe's major intellectual figures -- Albert Camus, Arthur Koestler, Primo Levi, Hannah Arendt and Leszek Kolakowski, among others -- or with consequential historical phenomena such as the fall of France in 1940 and Romania's emblematic nationalism.

A handful engage his more recent preoccupation with contemporary U.S. domestic and foreign policies, and there his arguments are more problematic, his grasp of the material less sure.

Only two touch on the direction that has, in recent years, made Judt the object of so much controversy -- his emergence as a passionate and formidable critic of America's relationship with Israel, of Israel's conduct generally and, in fact, of Zionism itself.

(via Arts & Letters Daily)


Through the Past, Darkly, review by Geoffrey Wheatcroft, The New York Times, April 20, 2008

In one judicious examination of this subject, Judt observes that European progressives have been better than their American counterparts at allowing “that there might really have existed a secret Communist underground” — and a real mortal, moral conflict, one could add.

Appraiser appraised, review in The Economist, April 17, 2008

The authoritative tone which is so convincing when he is talking about the continental intellectuals of the last century works less well when it is peddling the conventional wisdom of the left.

Alan Gura "The Supreme Court and the Right to Keep and Bear Arms" April 25, 2008

If you practice in northwestern Wisconsin, this Minnesota Lawyers Chapter event might interest you.

Semantic Originalism

(draft April 16, 2008) by Lawrence B. Solum

(via Ed Whelan at Bench Memos)

'Elitist': The Rarefied Term That's a Low Blow

Paul Farhi in the Washington Post, April 18, 2008

Some liberal college towns are caricatured as elitist (Cambridge, Berkeley) but other liberal college towns (Madison, Austin) are not.

Via Terry Mattingly at Get Religion who warned "If you live in Texas, you’ll want to read this one sitting down." (see this earlier post)

Sunday Symposium: Judicial selection

Recent op-eds brought letters from readers Lawrence G. Polzin of Greendale, Fred Wagner of Clinton, Terry Neafie of Elm Grove, Dick Feyrer of Waukesha, Cecil Streeter of Oshkosh, Lew A. Wasserman of Whitefish Bay, and George J. Smullen of Waupun, in the April 20, 2008 Milwaukee Journal Sentinel

How Judge Posner Thinks Judges Should Think

An unpersuasive case for pragmatism.

Review by Edward Whelan of How Judges Think by Richard A. Posner, National Review Online, April 17, 2008

Court of Appeals opinions week of April 14, 2008

Errata April 18, 2008


Opinions April 17, 2008

including 'Coulee Catholic Schools v. LIRC' (2007AP496)
Age discrimination case, by Marie Rohde, Proof and Hearsay, Friday, April 18, 2008, 01:31 PM


Opinions April 16, 2008


Opinions April 15, 2008

including 'Schneider v. Schneider' (2007AP1404)
Divorce case sent back, by Marie Rohde, Proof and Hearsay, Tuesday, Apr 15 2008, 12:46 PM. "A divorce court judge will have to reconsider a decision that a man was not responsible for the cost of his wife’s elective co[s]metic surgery..."

and including 'State v. Payano' (2007AP1042-CR)
Wisconsin Appeals Court reverses and remands case involving suspect who shot Police Officer, Badger Blogger, April 17, 2008
(via WisOpinion)


CaseLaw Express, Week of April 14, 2008


Wisconsin Law Journal current case digests

Judge Sykes on judicial selection

Rick Esenberg at Shark and Shepherd, April 18, 2008, on yesterday's address by Judge Diane Sykes to a meeting of the Eastern District of Wisconsin Bar Association.

In choosing an elected judiciary, Wisconsin has accepted a reduction in judicial independence in order to achieve a greater level of judicial accountability.

Wisconsin Supreme Court lets 'shaken baby' ruling stand

Ryan J. Foley of the Associated Press reports on denial of review in State v. Edmunds, 2008 WI App 33.

(via WisPolitics)

Court elections give voters needed voice

Maureen Martin in the Wisconsin State Journal, April 17, 2008
(via WisOpinion)

Take care when entering stipulations

by David Ziemer, Wisconsin Law Journal, April 18, 2008 on 'Stone v. Acuity' (linked at this earlier post)

You may think you are merely conceding liability and damages, where those issues aren’t seriously in dispute, while preserving all legal issues for appeal. But the stipulation could be read to be much broader than intended.

Appeals court judges lament negative campaigning

John Diedrich reports in the Milwaukee Journal Sentinel on remarks by Judge Terence Evans and Judge Diane Sykes of the U.S. Court of Appeals for the Seventh Circuit on the recent Wisconsin Supreme Court election.

(via The Wheeler Report)


P.S. Sykes, Evans discuss Supreme Court election, by Milwaukee Journal Sentinel staff, Proof and Hearsay, Thursday, Apr 17 2008, 07:15 AM


Update: "...We Could Be Giving a Wristwatch to a Fish?" Jeff Wagner wonders why Judge Michael Gableman's election to the Wisconsin Supreme Court with five years experience on the Circuit Court troubles Judge Evans who was appointed to the U.S. District Court with five years experience on the Circuit Court.

When Irony Becomes Farce

David Bernstein at The Volokh Conspiracy

I'm a big fan of The Innocence Project, which assists individuals unjustly convicted of crimes. But I did a massive double-take when I saw that Janet Reno is on its board of directors. Janet Reno! She bears as much responsibilty as anyone for the child abuse witch hunt trials of the late 80s that claimed many innocent victims, including several prosecuted by her office, via the "Miami method" she pioneered. To my knowledge, Reno has never apologized for what we might euphemistically call the "excesses" of her prosecutorial tactics. ...

Chief Justice coming to town

From the Manitowoc Herald Times Reporter, April 17, 2008,

Wisconsin Chief Justice Shirley Abrahamson will discuss "A Fair and Impartial Judiciary" at the Manitowoc County League of Women Voters Annual Meeting on Tuesday, May 6 at the Holiday Inn.

The Taking of Port Chester

Editorial in Forbes by University of Chicago professor Richard Epstein on the Takings Clause.

Teacher fired for viewing pornography sues district

Tom Ketrscher reported in the Milwaukee Journal Sentinel.

In a $9 million civil rights lawsuit filed Wednesday, the former Cedarburg teacher fired for viewing pornography on his school computer said he did a search that turned up the adult images only because he wanted to see if the school district had installed software to block such images.

(see this earlier post)

Ed Meese "Would the Founding Fathers Recognize Today's Supreme Court?" April 17, 2008

Former United States Attorney General Edwin Meese, III delivers a lecture, "Would the Founding Fathers Recognize Today's Supreme Court?"
Thursday, April 17, 2008.
11:45: Lunch served, catered by Einstein Bagels
12:15: Lecture, followed by Q&A

(Due the a change in Mr. Meese's schedule, a 1:00 p.m. reception has been canceled.)

Marquette University Law School Room 307
1103 West Wisconsin Avenue, Milwaukee

Mr. Meese is Ronald Reagan Distinguished Fellow in Public Policy and Chairman of the Center for Legal and Judicial Studies at The Heritage Foundation.

Presented by the Marquette Law Student Chapter of the Federalist Society


Mr. Meese was the featured speaker at our chapter's First Annual Constitution Day Celebration, September 17, 1996.


Update: Mav on Meese, by Sam Sarver at Brazen Maverick, April 17, 2008
(via WisOpinion)

Supreme court discusses discretionary transfer of cases to tribal court petition;

will seek more input on this important issue

Our State Bar reports

At an open administrative conference on April 15, the Wisconsin Supreme Court tentatively adopted in principle the concept of the discretionary transfer of civil cases to tribal court as requested in Petition 07-11.

(see this earlier post)

Respect court for planning ahead

An editorial in the Wisconsin State Journal on

The court recently voted 6-1 to prepare for the very real possibility that it will need to help re-draw boundaries for legislative districts after the 2010 census.

'In the matter of the adoption of procedures for original action cases involving state legislative redistricting' (02-03) (see this earlier post)

The Wisconsin Constitution is clear that the Legislature is responsible for redrawing the lines.

Article IV, section 3

...The court has made it clear that it will not step into this politically volatile fight over district maps unless all of the following three things happen:
- The Legislature is at impasse.
- Someone asks the court to intervene.
- The court agrees to take the case.

(via The Wheeler Report)

A better way to select justices

Richard S. Brown in the April 16, 2008 Milwaukee Journal Sentinel proposes an alterntive to appointment as an alternative to election of judges.

I propose that we take the governor largely out of the equation in the first instance. Rather, the process would begin with candidates applying to a judicial commission composed of a wide range of interested entities.

...Up to three names could be sent to the governor, and the governor would have to choose one.

So a Republican governor doesn't like the choices because there's not a "true believer" in the bunch? Tough. A Democratic governor doesn't like the choices because there is no guarantee that any of them will vote "the right way"? That's too bad.

The Official 'Village Voice' Election-Season Guide to the Right-Wing Blogosphere

by Roy Edroso, April 15, 2008

Must...update...blogroll...

(via Just One Minute)

In Chambers – Judge Michael W. Hoover, Dist. III Court of Appeals

The jugde is interviewed by Nicholas C. Zales in the April 2008 issue of De Novo, our State Bar's Appellate Practice Section newsletter

A Conversation With Peter B. Edelman

Interview By Tim Wells in the Legends in the Law series in Washington Lawyer, April 2008

What was [U.S. Supreme Court] Justice [Arthur] Goldberg like?

He was a wonderful person. Very warm. He treated his law clerks like family. Working for him was an eye-opening experience. His first question in approaching a case always was, “What is the just result?” Then he would work backward from the answer to that question to see how it would comport with relevant theory or precedent. It took me a while to get used to that approach. The way I had learned the law at Harvard was that you looked up the answer in a book. The law was composed of “neutral principles” that you could apply to get the proper result, and you never really asked whether it was just or not. Justice Goldberg opened my consciousness to the fact that the overarching purpose is about justice.

(via Dad29)


Update: At Bench Memos, Ed Whelan on Candor About Liberal Judicial Activism and Gerard V. Bradley with More on Arthur Goldberg

Mr. Whelan was the featured speaker at our chapter's March 8, 2007 luncheon. Mr. Bradley was the featured speaker at our chapter's February 4, 1998 luncheon.

Will Abrahamson face a tough race?

Jack Zemlicka reports in the Wisconsin Law Journal, April 15, 2008

...[Wisconsin Supreme Court Chief Justice Shirley] Abrahamson and opponent Sharren Rose combined to spend a then-record $1.3 million on their [1999] campaigns.

Abrahamson declined to speculate on what impact third parties might have on the 2009 race, but joked about being knocked out of the number one spending spot by the [2007] Ziegler-Linda M. Clifford race, during which the two candidates combined to spend more than $2.6 million.

Some background: Where does high court go from here? Impact of race between Abrahamson and Rose tough to call, experts say, by Steve Schultze and Richard P. Jones, Milwaukee Journal Sentinel, April 4, 1999

[Rose supporter and Marquette Law School Dean Howard] Eisenberg and Herbert Kritzer, a University of Wisconsin-Madison professor of law and political science and an Abrahamson supporter, discounted the suggestion that ousting Abrahamson would have a significant impact on the high court's rulings.

They agreed that she does vote on the liberal side, but said her vote could rarely be considered the deciding one on a case. Only a handful of cases every year are decided by 4-3 votes, and most decisions are unanimous, they said.

and Abrahamson fends off Rose: Chief justice gets over 60% of vote in contentious race, by Richard P. Jones, Milwaukee Journal Sentinel, April 7, 1999

Some observers expressed concern about the damage the race may have done to the court, saying the costly, negative campaign might discourage others from running for the court.

Arguments April 16, 2008

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

10:00 a.m. Edward U. Notz v. Everett Smith Group, Ltd. (2006AP3156)

Enrollment cannot be denied a student based on expulsion from private or out-of-state public school OAG 5-08

Wisconsin Attorney General J. B. Van Hollen responds in the negative to questions from Anthony Evers, Deputy State Superintendent, Department of Public Instruction, regarding Wis. Stat. § 120.13(1)(f), April 10, 2008.

1. May a Wisconsin school district rely upon Wis. Stat. § 120.13(1)(f) to deny enrollment to a pupil who is currently expelled from an out-of-state public school?

2. May a Wisconsin school district rely upon Wis. Stat. § 120.13(1)(f) to deny enrollment to a pupil who is currently expelled from an out-of-state public school because the pupil has been found to have violated the Gun Free Schools Act, 20 USC 7151?

3. May a Wisconsin school district rely upon Wis. Stat. § 120.13(1)(f) to deny enrollment to a pupil who is currently expelled from a private school?

Electronic filing is on its way to Wisconsin courts

Supreme Court approves voluntary e-filing of circuit court documents

Jack Zemlicka reports in the Wisconsin Law Journal, April 14, 2008

(see this earlier post on the hearing)

Weakening the Bill of Rights: A Victory for Terrorism

Review by Stephen Reinhardt, 106 Mich. L. Rev. 963, of Not a Suicide Pact: The Constitution in a Time of National Emergency by Richard A. Posner

I feel more confident in judges than in elected officials safeguarding our constitutional liberties. But I would feel even better were there some Warrens, Brennans, Marshalls, Douglases, Blackmuns, or even more Stevenses currently making the decisions that will determine the nature of our rights and freedoms—and indeed the nature of our society—for years to come.

(via Dad29)

Alfred Regnery "The Ascendance of American Conservatism" April 22, 2008

Presented by the Wisconsin Forum at the Milwaukee Athletic Club

Mr. Regnery is the Publisher of The American Spectator, a monthly magazine of politics, international affairs and culture. Prior to joining The American Spectator, he was the President and Publisher of Regnery Publishing, Inc. a Washington D.C. book publishing firm.

Regnery's latest book, chronicling the conservative movement from 1945 to the present, came out in February 2008 by Simon & Schuster under the title Upstream: The Ascendance of American Conservatism.

Contact Brenda Bass for cost, time, and to reserve.

Arguments April 15, 2008

Wisconsin Supreme Court

9:45 a.m. Estate of Dale Otto v. Physicians Insurance Company of Wisconsin, Inc., et al. (2006AP1566)
Argument audio
(see earlier post on grant of review)

This Week in Liberal Judicial Activism: Week of April 14, 2008

Ed Whelan at Bench Memos.

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

'Terror and Consent' by Philip Bobbitt

Terror and Consent: The Wars for the Twenty-First Century by Philip Bobbitt.


War Plans, review by Niall Ferguson, The New York Times, April 13, 2008

To summarize: Bobbitt believes that there is a real war against terror; that civil liberties as previously understood may need to be curtailed to win it; that we must nevertheless fight it without violating our commitment to the rule of law; and that the United States cannot win it alone.

Race didn't doom Louis Butler

Walter C. Farrell, Jr. in the April 13, 2008 Milwaukee Journal Sentinel

Wisconsin's white voters turned out for Butler in every corner of the state, much like they did for Barack Obama. Butler essentially split their votes with Gableman.

But unlike Obama, Butler did not energize or brand himself in Wisconsin's minority communities, and Gableman consistently garnered votes in overwhelmingly black, American Indian, Asian and Hispanic precincts across the state, providing him with his small margin of victory.

Judicial elections are an imperfect, best option

Rick Esenberg in the April 13, 2008 Milwaukee Journal Sentinel

Appointment may serve impartiality, but at the expense of accountability. This lack of accountability - if it contributes to an "imperial" judiciary - is just as problematic as electoral threats to impartiality, threatening to impinge upon the prerogatives of the executive and legislative branches.

And it attracts political attention. When judges believe that they can read the law in light of their political predilections, it is only natural to expect that people will come to care passionately about the ideologies of judges.

This is, in large part, responsible for the way in which battles over the confirmation of judges have turned into little Armageddons. Appointment doesn't drive out politics; it just moves it from the campaign trail to the hearing room and, of course, the back room.

Although appointment for life may eliminate political concerns once a judge assumes the bench (at least if the judge doesn't aspire to higher office), that impartiality comes at the price of a lack of accountability. Nor is greater impartiality ensured.

Elect or appoint?

Frederick P. Kessler in the April 13, 2008 Milwaukee Journal Sentinel. Rep. Kessler (D-Milwaukee) represents the 12th Assembly District.

...I have proposed an amendment to the state Constitution that would give the governor the authority to appoint Supreme Court justices. After a gubernatorial appointment, justices would have to be confirmed by a majority vote in the state Senate. At the conclusion of a 10-year term, justices would be automatically reappointed, unless 21 of the 33 members of the Senate vote against reappointment. If the justice is not reconfirmed by the Senate, the governor appoints a new justice.

What's wrong with Pennsylvania

Talking with campaign contributors in California, Senator Barack Obama (D-IL) said,

You go into some of these small towns in Pennsylvania, and like a lot of small towns in the Midwest, the jobs have been gone now for 25 years and nothing's replaced them. And they fell through the Clinton Administration, and the Bush Administration, and each successive administration has said that somehow these communities are gonna regenerate and they have not. And it's not surprising then they get bitter, they cling to guns or religion or antipathy to people who aren't like them or anti-immigrant sentiment or anti-trade sentiment as a way to explain their frustrations.

Ann Althouse comments that this

sounded like a typical law-school-liberal remark. I think it was quite sincere, and I'm rather sure he believed he was being admirably intellectual and raising politics to a new, higher level. Within a liberal law school environment, that statement would be heard as a thoughtful, compassionate insight. Some of your colleagues might think you were excessively, squishily tolerant of what they see as ignorant, bigoted people, but I don't think they'd push you to be more understanding of the alien culture you were observing.

P.S. from The Onion, August 9, 2000, Visiting Gore Calls Pennsylvania 'A Hellhole'

Torts and courts

Life, liberty and the pursuit of a fair judiciary

The Economist on the Wisconsin Supreme Court election.

Arguments week of April 14, 2008

April 15, 2008 Wisconsin Supreme Court arguments

9:45 a.m. Estate of Dale Otto v. Physicians Insurance Company of Wisconsin, Inc., et al. (2006AP1566)
(see earlier post on grant of review)


April 16, 2008 Wisconsin Court of Appeals arguments at Dist. I, 633 W. Wisconsin Ave., #1400, Milwaukee

10:00 a.m. Edward U. Notz v. Everett Smith Group, Ltd. (2006AP3156)

Stone v. Acuity '2008 WI 30'

The Wisconsin Supreme Court today issued its opinion in this case (2005AP1629) affirming the Court of Appeals, 2006 WI App 205, 296 Wis. 2d 240, 723 N.W.2d 766

Opinion by Justice Bradley, with Chief Justice Abrahamson and Justices Crooks and Prosser

¶2 Relying on precedent, we conclude that by failing to provide the Stones with notice of the availability of UIM coverage as part of their umbrella insurance, Acuity violated the notice provision of § 632.32(4m). We further determine that where an insurer fails to provide notice of the availability of UIM coverage as part of an insurance policy, the appropriate remedy is to read in the level of coverage necessary for the policy to conform to § 632.32(4m)(d)——$50,000 per person and $100,000 per accident.

¶3 In the present case, however, the Stones' recovery is set [at $500,000] by a stipulation between the parties, and we honor their agreement.

Justice Roggensack concurred in part and dissented in part

¶80 I respectfully dissent from the majority opinion's discussion and conclusions relative to the stipulation for three reasons: (1) the stipulation is ambiguous as to the parties' intent; (2) the majority opinion unreasonably interprets the parties' stipulation to effect an unwarranted penalty against Acuity; and (3) in the alternative, even were I to agree with the majority opinion's interpretation of the stipulation, fairness requires that the penalty to which Acuity should be subjected for failing to comply with Wis. Stat. § 632.32(4m)(a)1 be referred to the circuit court so that Acuity can bring a motion pursuant to Wis. Stat. § 806.07(1), to request relief from the stipulation, in order that Acuity be treated the same as would any other insurer who did not give the notice required by § 632.32(4m)(a)1.

Justice Butler concurred in part and dissented in part

¶103 ...I dissent from that part of the majority opinion establishing the remedy for other cases in which Wis. Stat. § 632.32(4m) is violated but where, unlike this case, a stipulation does not set the remedy for the parties.

¶120 ...What is necessary is a remand to determine whether the stipulation should take effect. Even if this case were not resolved through the application of the stipulation, however, I still disagree with the majority's new rule adopting the statutory minimum coverage for primary insurance policies as the required statutory minimum for umbrella insurance policies as well, where there is a violation of § 632.32(4m)(d), particularly where the finder of fact has not determined whether and at what amount umbrella UIM coverage would have even been purchased, and in light of the minimum umbrella insurance amount of $1,000,000.

Analysis from "Insurance Coverage Decisions that Will Impact Your Clients - 2008", by Terry J. Booth, Civil Trial of Wisconsin Summer Conference, August 14, 2008, Wisconsin Dells


Insurance: UIM Coverage - Umbrella Policies - Notice - Remedy, Supreme Court Digest, by Prof. Daniel D. Blinka and Prof. Thomas J. Hammer, Wisconsin Lawyer, June 2008


Take care when entering stipulations, by David Ziemer, Wisconsin Law Journal, April 18, 2008


Insurance payment ruled valid: High court finds bicyclist hurt in crash entitled to $500,000, by Marie Rohde, Milwaukee Journal Sentinel, April 13, 2008

Get a Great Rate of Return

In our State Bar's Inside the Bar newsletter for April 2008, our State Bar's executive director George C. Brown highlights some events at our State Bar's annual convention May 7-9 in Madison.

Two years ago, South Dakota voters were asked to enact an initiative measure called "J.A.I.L. for judges" [Jail 4 Judges] which would have stripped judicial immunity in the state. Tom Barnett, South Dakota State Bar executive director, helped lead a successful campaign to defeat this measure by a vast majority of the votes. Barnett will speak about the J.A.I.L. (Judicial Accountability Initiative Law) effort. Other participants will discuss legislative proposals that threaten judicial independence and judicial campaign reform and the effect of elections on the judiciary during this Friday Morning Spotlight Program, from 8:30 - 10:10 a.m. Following the speakers, State Bar president Tom Basting will moderate a panel discussion with several members of the Wisconsin Judicial Campaign Integrity Committee.

The WJCIC's Bill Kraus is also on a Thursday panel, with Bob Williams, "That was Then, But Now is Now: Two Campaign Veterans Discuss the Degeneration of Election Campaigns, Including Judicial Campaigns, in Wisconsin" presented by the Administrative & Local Government Law Section, the Government Lawyers Division, and the Professionalism Committee.

Wisconsin Supreme Court Election Raises New Questions About Judicial Election Reform

Press Release, April 2, 2008, by Mike Webb and James Sample of the Brennan Center for Justice at New York University Law School

The Butler-Gableman campaign also highlights the trend in which African Americans who receive interim appointments to the bench have difficulty retaining their seats when they stand for election.

(via The Wheeler Report)

Mr. Sample was a panelist at our chapter's March 11, 2008 event.

Court of Appeals opinions week of April 7, 2008

Opinions April 10, 2008


Opinions April 9, 2008

including 'Marquez v. Mercedes-Benz USA, LLC' (2007AP681)

‘Lemon’ buyer has duty to return seller’s calls: Buyer can’t obstruct seller’s efforts at refund, by David Ziemer, Wisconsin Law Journal, April 11, 2008

Buyer must prove he didn't twist lemon law: Appeals court orders trial to resolve questions about refund for Mercedes, by Marie Rohde, Milwaukee Journal Sentinel, April 10, 2008


Opinions April 8, 2008

including 'State v. Cherry' (2007AP1808-CR)
Court vacates DNA surcharge, by David Ziemer, Wisconsin Law Journal, April 14, 2008


CaseLaw Express, Week of April 7, 2008


Wisconsin Law Journal current case digests

Decision in 'Stone v. Acuity' 2008 WI 30

Preventing a Plaintiff’s Attempt to “Read In” Underinsured Motorists Coverage in an Umbrella Policy, by Ariella Schreiber, of Winner, Wixson & Pernitz, Wisconsin Civil Trial Journal, Winter 2008

The Wisconsin Supreme Court today issued its decision in this case (2005AP1629) affirming the Court of Appeals, 2006 WI App 205.

Three Months and Counting

Our State Bar's Wisconsin Lawyer magazine for April 2008 includes this President's Message column by President Thomas J. Basting Sr., now in the final quarter of his one-year term.

Finally, the Wisconsin Judicial Campaign Integrity Committee has been formed, has operated throughout this judicial election cycle, and has received accolades from many sources (and criticism from others).

(See, e.g., this earlier post)

More about that in my next column.

Member input sought on section amicus request: Feedback due April 16

Our State Bar reports

The Elder Law Section requests authorization to file an amicus brief in Judith Van Handel v. Wisconsin Department of Health and Family Services, currently before the Wisconsin Court of Appeals, District III.

(2008AP146)

At issue is an appeal of circuit court decision denying Judith Van Handel’s post judgment motion for costs and attorneys fees under Wisconsin Equal Access to Justice Act. § 814.245 Wis. Stat. The request for fees arose when Ms. Van Handel was the prevailing party in the substantive portion of this case, which was a petition for review of a final fair hearing decision of the Wisconsin Department of Health and Family Services (DHFS). § 227.58 Wis. Stat.

Scalia Justifies His Jurisprudence: ‘I am Not a Nut’

Dan Slater at the Wall Street Journal's Law Blog on one of Justice Antonin Scalia's recent school appearances, this one at Roger Williams University law school.

On his judicial philosophy, Scalia reportedly said it was dangerous for interpretations to evolve over time and according to a particular judge’s opinion. “I am a textualist, I am an originalist. I am not a nut,” he said. “You want the right to abortion? Create it the way most rights are created in a democracy. Persuade your fellow citizens it’s a good idea — and pass a law,” Scalia said. “You don’t like the death penalty? Persuade your fellow citizens it’s a bad idea and repeal it.”

(via Stephen Dillard at Southern Appeal)

See No one here but us Scalias, by Patrick McIlheran, Milwaukee Journal Sentinel, March 26, 2008

Justice Scalia was the keynote speaker at our chapter's February 23, 2006 event.

Village wants jury to rule on hospital sewer fees

Jackson, Synergy Health dispute deal

Dan Benson reports in the Milwaukee Journal Sentinel

The lawsuit follows a state appeals court decision last year [Washington County v. Village of Jackson (May 30, 2007 2006AP943)] that affirmed a Circuit Court ruling ordering the hospital to pay the village a $1.08 million connection fee for municipal sewer and water service.

Certification in 'American Family Mutual Ins. Co. v. Golke'

The Wisconsin Court of Appeals in this case (2006AP3003) has certified to the Supreme Court these questions

involving the spoliation of evidence: (1) under what circumstances may evidence crucial to a potential legal claim be destroyed; and (2) what notice must be given to a civil litigant before the evidence is destroyed.

Supreme Court Race Examined

At Wisconsin Public Television, April 4, 2008, on an episode of Here and Now

Carol Toussaint of the Wisconsin Judicial Campaign Integrity Committee an organization that provides oversight of judicial campaigns, will join us to discuss these aspects of the campaign, as well as what can be done differently in future court races.

Arguments April 10, 2008

Wisconsin Supreme Court

9:45 a.m. State ex rel. Adrian T. Hipp v. Circuit Court for Milwaukee County (2007AP230-W)
Argument audio
Case of the month, April 2008 summary and briefs
Review of decision of the Court of Appeals 2007 WI App 202

10:45 a.m. State v. Jonathan J. Hubbard (2006AP2753-CR)
Argument audio
(see earlier post on grant of review)

01:30 p.m. Office of Lawyer Regulation v. Paul W. Humphrey (2006AP2842-D)
Argument audio

Former judges resign from panel

Steven Walters reported in the Milwaukee Journal Sentinel on resignations from the Government Accountability Board.

David Deininger of Monroe and board member James Mohr of Eagle River resigned from their judgeships before they started serving on the board.

But [state Attorney General J. B.] Van Hollen said [OAG 4-08] they are not qualified to serve because a little-known section of the state constitution [Wis. Const. art. VII, § 10(1)] says that judges can hold no other "office of public trust . . . during the term for which elected."

Doyle signs bill creating state tartan

The Associated Press reported in the Stevens Point Journal, April 7, 2008

Wisconsin no longer has to worry about being without an official state tartan.

Gov. Jim Doyle signed into law on Monday a bill creating the official tartan.

2007 Wis. Act 217

A tartan is a pattern of crisscrossed horizontal and vertical bands. The official Wisconsin tartan contains the colors of muted blue, scarlet, gray, black, dark green, dark yellow and dark brown.

Perhaps modeled on the tartan of the clan McCheese.

The tartan now joins a host of other official state designations including the song, domestic animal, insect, fossil and fruit.

See Wisconsin State Symbols, Blue Book 2007-2008

Doyle’s signing of the tartan bill Monday was celebrated in the Capitol rotunda by the playing of bagpipes by the measure’s supporters.

(via The Wheeler Report)

Opportunity missed

The Economist, March 27, 2008, reviews Leave Us Alone : Getting the Government's Hands off Our Money, Our Guns, Our Lives, by Grover G. Norquist (reader discretion is advised)

According to Mr Norquist, America is engaged in a life-and-death struggle between two great political coalitions: the “leave us alone coalition” (gun-owners, people of faith, entrepreneurs) and the “takings coalition” (bureaucrats, holier-than-thou liberals and rent-seekers). The key that will decide who wins this battle is taxation. “In politics, taxation is not the most important thing,” he argues, “it is the only thing.” Turn the key one way, and America remains America; turn it the other way and it becomes Europe, with lethargic growth, structural unemployment and scrotum-shrinking dependence on big government.

Supreme Court opinions April 8, 2008

Disciplinary matters only.

Supreme Court selects chief judges

For the two year term beginning August 1, 2008, the Wisconsin Supreme Court has appointed

Judge Mary K. Wagner, Kenosha County Circuit Court, to serve as the new chief judge of the Second Judicial Administrative District. The Second District encompasses Kenosha, Racine and Walworth counties in southeastern Wisconsin.

The court reappointed four incumbants.

Chief Judge J. Mac Davis, Waukesha County, Third Judicial District (Waukesha, Jefferson, Ozaukee and Washington counties)

Chief Judge John R. Storck, Dodge County, Sixth Judicial District (Adams, Clark, Columbia, Dodge, Green Lake, Juneau, Marquette, Portage and Sauk counties)

Chief Judge Sue E. Bischel, Brown County, Eighth Judicial District (Brown, Door, Kewaunee, Marinette, Oconto, Outagamie and Waupaca counties)

Chief Judge Dorothy L. Bain, Marathon County, Ninth Judicial District (Florence, Forest, Iron, Langlade, Lincoln, Marathon, Menominee, Oneida, Price, Shawano, Taylor and Vilas counties)

State Voter ID Requirements and the Constitution

by Allison R. Hayward, Engage, Volume 9, Issue 1, February 2008

Most likely because it is an election year, the argument in Crawford v. Marion County Board of Elections, has attracted spirited attention, and almost forty briefs from outside groups. Supporters of the law, which requires Indiana voters to present a government-issued photo ID before voting (or vote provisionally or swear indigency or other inability to obtain an ID) argue that an ID requirement is necessary to prevent voter fraud. Opponents argue that ID requirements attack a phantom problem, because there is little evidence of impersonation fraud. The problem with both perspectives is that they attempt to score public policy points in the context of constitutional adjudication. The question before the Court in Crawford is not whether Indiana’s voter ID requirement is good policy, canny politics, or even whether it is justified. The question is whether it is facially unconstitutional for a state to impose this specific ID requirement on all voters....

To Begin a Conversation on Judicial Independence

by The Honorable Patricia Drake Roggensack, Marquette Law Review, Volume 91, page 535 (Number 2, Winter 2007)

Exercising Judicial Power: A Response to the Wisconsin Supreme Court's Critics

by The Honorable Lynn Adelman and Shelley Fite, Marquette Law Review, Volume 91, page 425 (Number 2, Winter 2007)


Judge Adelman lead the roundtable discussion at our chapter's March 11, 1993 event.

Rules hearings April 8, 2008

Wisconsin Supreme Court

9:30 a.m. open administrative conference 'In the matter of the adoption of procedures for original action cases involving state legislative redistricting' (02-03)
Respect court for planning ahead, Wisconsin State Journal editorial April 17, 2008
Wis. Supreme Court may get involved in legislative redistricting, Associated Press, April 8, 2008
Supreme Court Orders, Wisconsin Lawyer, February 2008
The Courts and Redistricting in Wisconsin: A Proposal, Wisconsin Supreme Court: Redistricting Committee, September 21, 2007
See Jensen v. Wisconsin Elections Board, 2002 WI 13, 249 Wis. 2d 706, 639 N.W.2d 537 (2002)

9:30 a.m. Public Hearing 'In the matter of the Creation of a Court Rule Authorizing Use of Electronic Signatures by Court Officials' (06-07)
Electronic filing is on its way to Wisconsin courts: Supreme Court approves voluntary e-filing of circuit court documents, by Jack Zemlicka, Wisconsin Law Journal, April 14, 2008
Hearing audio
Supreme Court Orders, Wisconsin Lawyer, February 2008
Petition filed by A. John Voelker, Director of State Courts, December 6, 2006

9:30 a.m. Public Hearing 'In the matter of the Creation of a Court Rule Governing Electronic Filing in the Circuit Courts' (06-08)
Hearing audio
Supreme Court Orders, Wisconsin Lawyer, February 2008
Petition filed by A. John Voelker, Director of State Courts, December 6, 2006

Double damages for misrepresentation under HIPA

The transformation of garden variety contract disputes into statutory fraud actions allowing double damages and attorney fees continues unabated.

Class Action Watch March 2008

The latest issue of this Federalist Society publication has been posted.

This Week in Liberal Judicial Activism: Week of April 7, 2008

Ed Whelan at Bench Memos.

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

Next time, vote as you're told

Patrick McIlheran in the Milwaukee Journal Sentinel, April 6, 2008

Rules hearings April 7, 2008

Wisconsin Supreme Court

9:45 a.m. Public Hearing 'In the matter of the Amendment of Rules of Pleading, Practice and Procedure: Wis. Stat. Ch. 756, Juries' (08-01)
Hearing audio
Supreme Court Orders, Wisconsin Lawyer, February 2008
Petition filed by A. John Voelker, Director of State Courts, January 3, 2008

9:45 a.m. open administrative conference 'In the matter of the Licensure and Regulation of Paralegals' (04-03)
Supreme Court Orders, Wisconsin Lawyer, February 2008
October 27, 2004 hearing audio
Petition filed by the Board of Governors, State Bar of Wisconsin on February 13, 2004

Butler lost court race but not his integrity

Eugene Kane in his column in the April 6, 2008 Milwaukee Journal Sentinel quotes Justice Louis Butler.

"It's a mischaracterization when people accuse you of using the Constitution as a loophole."

The joys of parenthood

Why conservatives are happier than liberals

The Lexington column in The Economist, March 27, 2008, reviews Gross National Happiness by Arthur Brooks

Mr Brooks proposes that whatever their respective merits, the conservative world view is more conducive to happiness than the liberal one (in the American sense of both words). American conservatives tend to believe that if you work hard and play by the rules, you can succeed. This makes them more optimistic than liberals, more likely to feel in control of their lives and therefore happier. American liberals, at their most pessimistic, stress the injustice of the economic system, the crushing impersonal forces that keep the little guy down and what David Mamet, a playwright, recently summed up as the belief that “everything is always wrong”.

Progressive renaissance? Not in high court race

Editorial in the Green Bay Press-Gazette

We have been led to believe there is a progressive renaissance under way, fueled by the fact that the most liberal Democratic and Republican senators in the presidential race appear headed for a showdown in November. And yet the politically savvy handlers who run [judicial] campaigns scrambled to make viewers believe their candidates were conservatives. ...

See Patrick McIlheran, No one here but us Scalias.

Clearly, the message of conservatism still resonates with voters. Incumbents and potential challengers alike should take notice.

(via The Wheeler Report)

Wisconsin's Judicial Revolution

John Fund at The Wall Street Journal, April 5, 2008

In the wake of Justice Butler's defeat, some liberals have declared that elections for the state's supreme court should end, and its members be appointed by the governor. Tom Basting, president of the Wisconsin Bar, claims that "judges are different from other elected officials" and "that means some of the standards voters typically use when evaluating candidates don't apply to judges."

The U.S. Supreme Court has rejected the distinction between judicial and legislative elections. In expanding the political free speech rights of judicial candidates, it declared in 2002 (Republican Party of Minnesota v. White [536 U.S. 765]) that completely separating the judiciary from the notion of "representative government" ignores the fact that state-court judges possess the power to "make" common law as well as to shape their state constitutions. Thus it is entirely appropriate for voters to have a say in whether that "immense power," as the Supreme Court called it, will be used with restraint or abandon.

(via WisOpinion)

Mr. Fund was the featured speaker at our chapter's January 26, 2001 event.

Why Our Next President May Keep His Or Her Senate Seat:

A Conjecture On The Constitution’s Incompatibility Clause
by Seth Barrett Tillman

The Illusory Blogger

At WUWM's Lake Effect, April 3, 2008

Thomas Foley is the formerly anonymous author of the blog, Illusory Tenant: The Champagne of Hate Blogs. The Marquette Law School graduate [2007] is originally from Canada. He talks with Jane Hampden as part of Lake Effect’s year-long series of conversations with Wisconsin bloggers.

Remembering William F. Buckley, Jr.

National Review Online archive

(via Wigderson Library & Pub, Buckley funeral mass today)

Arguments and hearings week of April 7, 2008

April 7, 2008 Wisconsin Supreme Court rules hearings

9:45 a.m. Public Hearing 'In the matter of the Amendment of Rules of Pleading, Practice and Procedure: Wis. Stat. Ch. 756, Juries' (08-01)
Supreme Court Orders, Wisconsin Lawyer, February 2008
Petition filed by A. John Voelker, Director of State Courts, January 3, 2008

9:45 a.m. open administrative conference 'In the matter of the Licensure and Regulation of Paralegals' (04-03)
Supreme Court Orders, Wisconsin Lawyer, February 2008
October 27, 2004 hearing audio
Petition filed by the Board of Governors, State Bar of Wisconsin on February 13, 2004


April 8, 2008 Wisconsin Supreme Court rules hearings

9:30 a.m. open administrative conference 'In the matter of the adoption of procedures for original action cases involving state legislative redistricting' (02-03)
Supreme Court Orders, Wisconsin Lawyer, February 2008
The Courts and Redistricting in Wisconsin: A Proposal, Wisconsin Supreme Court: Redistricting Committee, September 21, 2007
See Jensen v. Wisconsin Elections Board, 2002 WI 13, 249 Wis. 2d 706, 639 N.W.2d 537 (2002)

9:30 a.m. Public Hearing 'In the matter of the Creation of a Court Rule Authorizing Use of Electronic Signatures by Court Officials' (06-07)
Petition filed by A. John Voelker, Director of State Courts, December 6, 2006
Supreme Court Orders, Wisconsin Lawyer, February 2008

9:30 a.m. Public Hearing 'In the matter of the Creation of a Court Rule Governing Electronic Filing in the Circuit Courts' (06-08)
Supreme Court Orders, Wisconsin Lawyer, February 2008
Petition filed by A. John Voelker, Director of State Courts, December 6, 2006


April 10, 2008 Wisconsin Supreme Court arguments

9:45 a.m. State ex rel. Adrian T. Hipp v. Circuit Court for Milwaukee County (2007AP230-W)
review of decision of the Court of Appeals 2007 WI App 202

10:45 a.m. State v. Jonathan J. Hubbard (2006AP2753-CR)
(see earlier post on grant of review)

01:30 p.m. Office of Lawyer Regulation v. Paul W. Humphrey (2006AP2842-D)

Some high-profile names in the news took one on the electoral chin on Tuesday.

Doug Hissom reports, Special to OnMilwaukee.com

One of the bigger upsets of Tuesday's ballot bout was Greendale Municipal Court Judge Anthony Machi's re-election defeat. Machi, known for his steady temperament and more so his affinity for auto racing, went down in defeat to Mark Kapocius, who's been out of law school all but a year. He does, however, wear his ideology on the sleeve a tad, being a member of the right-wing Federalist Society of legal thinkers.

We do not actually offer chevrons, but shirts, ties, scarves and pins are available. We congratulate Mr. Kapocius, a past president of the Marquette Law Student Chapter.

Arguments April 4, 2008 Wisconsin Supreme Court

Live audio of arguments is available.

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

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

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

After bitter race, calls for reform

Steven Walters, Stacy Forster and Patrick Marley, with Greg J. Borowski, report in today's Milwaukee Journal Sentinel.

The drumbeat for changing the system is already picking up, although it's unlikely efforts will go anywhere this year. State Rep. Fred Kessler (D-Milwaukee) called for a constitutional amendment to establish a system for appointing justices.

But Senate Majority Leader Russ Decker (D-Weston) did not embrace that idea.

"I was with Butler, but just because my guy didn't win doesn't mean we should change the rules," he said.

Decker helped push a public financing system for Supreme Court elections through the state Senate this year, but it died in the Republican-controlled Assembly.

Update: Christian Schneider at WPRI, The Voters Should Keep Speaking

there are some interesting facts that the Journal Sentinel seems to leave out. Take, for instance, the results of the last four Wisconsin Supreme Court races:

2000: Conservative woman defeats liberal man (Sykes v. Butler)

2003: Conservative woman defeats liberal man (Roggensack v. Brunner)

2007: Conservative woman defeats liberal woman (Ziegler v. Clifford)

2008: Conservative man defeats liberal man (Gableman v. Butler)

Could it be possible that Wisconsin voters simply prefer conservative justices?

Abrahamson to run for re-election

Brian Clark reports at the WisPolitics Election Blog

"I will run and will work hard," Abrahamson said emphatically in a meeting with the Channel 3 editorial board and WisPoltics.com.

"And I will mobilize the forces of good," she added with a wry smile.

Abrahamson said she was not put off by the negative overtones of the just concluded high court race between Justice Louis Butler Burnett County Circuit Judge Michael Gableman.

Update:

Conservatives eyeing state Supreme Court chief justice: Abrahamson has held top seat for past 12 years, by Scott Bauer of the Associated Press in the Green Bay Press-Gazette, April 4, 2008

Abrahamson said Thursday she expects a challenger like in her past three races. She said she will run for her seat based on her qualifications and record.

"I've got a long record and from my perspective, of course I'm not a disinterested observer, I think it will stand up," she said in an interview in her office. "I know it will stand up."

Chief justice ready to 'run hard', by Scott Bauer of the Associated Press with Dee J. Hall in the Wisconsin State Journal

[Justice-elect Michael] Gableman criticized Abrahamson as anti-law enforcement and liberal during his final, televised debate with Butler. The chief justice said she wouldn't hold the comments against him and congratulated him on his victory in a phone call Thursday.

"Despite an election and despite what people are concerned about in terms of the television ads, the court will remain the same in treating each case on the facts and the law without regard to political pressure and outside influence," she said.

(via WisPolitics)


Update 2: Abrahamson plans for re-election run: Chief justice says she believes in system, by Patrick Marley and Stacy Forster, Milwaukee Journal Sentinel, April 4, 2008

Abrahamson will be 76 when she runs next year and would be 86 when she completed her term in 2019. Asked if she would serve a full 10-year term on the court if re-elected, Abrahamson said: "Absolutely - I might even run again."

Former Justice William Bablitch said Abrahamson was "the best politician on the court" but beatable given Gableman's election and the successful campaign of Annette Ziegler last year.

Chief Justice Abrahamson was the featured speaker at our chapter's May 7, 1998 luncheon.