Dane County Circuit Judge Richard G. Niess said the pairing of two sentences in the amendment - one addressing marriage and the other similar legal relationships, such as civil unions - did not violate a provision in the Wisconsin Constitution that says if more than one amendment is submitted, voters must be able to vote for or against each amendment separately.
Will the subtler disrespect for law sown by the 1960s break into the open contempt likewise sanctioned by the decade? People assure me that the 1960s will never be repeated. But I wonder. The example of the Sixties still remains. Social volcanoes go quiet for a time, only to erupt when crisis conditions come again. We are a changed country because of the Sixties, more prone to larval protest and destruction than before. There will be a next time, and I worry the law will not stand in its way. Much of its back was broken long ago.
¶2 Olson is a real estate developer who owns 69.72 acres of land in the Town of Cottage Grove (Town) in Dane County (County). Olson brought a declaratory judgment action challenging the legality of the Town's Land Division and Planning Code § 15.15 (the ordinance or § 15.15). Olson sought to have the ordinance declared unconstitutional on various grounds, and he sought other relief, including approval of a final subdivision plat and compensation for the alleged taking of his property.
...
¶4 We are asked to address two questions: (1) What is the appropriate standard of review for a circuit court's decision granting summary judgment in a declaratory judgment suit on the basis that the suit is not ripe?; and (2) Is Olson's suit ripe for declaratory judgment, and therefore justiciable?
¶5 We determine that the appropriate standard of review in these circumstances is de novo review. Applying this standard of review to the record before us, we conclude that Olson's declaratory judgment suit is ripe for adjudication, and therefore justiciable.
¶80 ... the majority opinion silently overrules Loy's [Loy v. Bunderson, 107 Wis. 2d 400, 414, 320 N.W.2d 175 (1982)] core holding that whether an issue is ripe for judicial determination under the Declaratory Judgments Act [Wis. Stat. § 806.04] lies within the circuit court's discretion. The majority opinion now declares that the standard of review of the circuit court's determination that Olson's case was not ripe is the same as the standard of review of a decision to grant summary judgment: de novo.
¶4 We hold that the made whole doctrine is not implicated in this case. Specifically, the doctrine does not apply when an insurer has fully satisfied its obligations under an insurance contract, given its insureds the opportunity to settle their claim with the tortfeasor and the tortfeasor's insurer, the pool of settlement funds available to the insureds exceeds the total claims of both the insureds and the insurer, and the insureds settle their claim, even though the insureds' settlement, together with the insurer's policy payments, does not satisfy the insureds' total claim. In these circumstances, the inequitable prospect of an insurer competing with its insureds for an inadequate pool of funds is not present, and the equities favor the insurer. Thus, we conclude that Society is entitled to retain its entire subrogation settlement with United and Jerrick and that the Mullers have no right to a portion of Society's subrogation settlement.
¶140 Our decision in Schulte [v. Frazin, 176 Wis. 2d 622, 628, 500 N.W.2d 305 (1993)] recognizing indemnification agreements properly furthered the policy of promoting settlement. In contrast, the majority opinion's de facto requirement that a plaintiff wanting to take advantage of the made whole doctrine utilize an indemnification agreement constrains both the plaintiff-victim's and the defendant tortfeasor's ability to settle on their own preferred terms. This constraint does not seem to offer any benefits that might offset its obvious cost.
¶6 We conclude that the Estate, representing the retired partner, has the burden under Wis. Stat. § 178.37 [footnote omitted] of proving the profits attributable to the business's use of the retiring partner's right in the property, and that the circuit court erred in applying a predissolution profit-sharing ratio as the basis for postdissolution division of profits under § 178.37. However, we conclude that the circuit court did not err in conditioning a stay of execution of judgment upon Robert's depositing with the court the judgment amount plus 12 percent interest for one year.
¶114 In sum, Judge Ziegler violated a rule [SCR 60.04(4)(e)1.] that clearly mandated that she either recuse herself from the 11 cases involving the bank [of which her husband was a director] or obtain a waiver of recusal. Judge Ziegler's conduct was a serious failing. "While the potential for harm to the court system, to the litigants in the cases she decided, and to the public's perception of the fairness of the judicial system was great," Tesmer, 219 Wis. 2d at 733, neither Judge Ziegler nor her family benefited financially from her participation in the cases. None of the litigants has asked to have a case reopened. Judge Ziegler took prompt steps to prevent a recurrence, and after the election the Judge has publicly apologized for her misconduct. ...
¶115 We determine that on the facts and circumstances before us, Judge Ziegler's judicial misconduct warrants the reprimand recommended by the panel.
¶119 As the majority observes, when the [Judicial Conduct] Panel explained its decision to take no testimony at the November 19, 2007, hearing in this matter, it explained that it would instead "rely on the assertions of fact in the documents before it, the pleadings, the stipulation, as well as the assertions of fact made by counsel in the briefs and in argument." Per curiam op., ¶20. However, briefs and arguments do not constitute evidentiary facts of record. See Merco Distrib. Corp. v. O&R Engines, Inc., 71 Wis. 2d 792, 795-96, 239 N.W.2d 97 (1976).
¶120 In light of the lack of an evidentiary record in this
case [footnote omitted], I cannot accept the court's stated reasons for denying
remand.
Experts Should Test Alternative Designs Or Be Able To Justify Scientifically The Absence Of Testing; Differential Diagnosis Can Satisfy Daubert [Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993)] Only If Potential Causes Are “Ruled In” and “Ruled Out”
Abstract:
This Article asks whether a fair application of the Supreme Court's current doctrine of stare decisis to the Supreme Court's current doctrine of stare decisis would counsel in favor of adhering to current doctrine or departing from it. Professor Paulsen argues that the paradoxical answer is that current doctrine of precedent suggests that current doctrine of precedent disserves all of the doctrine's supposed policy justifications. Accordingly, the Court's current doctrine of stare decisis may and should be overruled - according to the Court's current doctrine of stare decisis.
¶2 The parties agreed to stipulate to the first element of the ground [for termination of parental rights], that is, that Junior had been adjudged a child in need of protection or services (CHIPS) and placed outside the home for a cumulative total period of six months or longer pursuant to one or more court orders containing the termination of parental rights notice required by law. Andrea maintains such a stipulation constitutes an invalid withdrawal of her demand for a jury trial on that element. She argues that it is invalid because the circuit court erred in failing to engage her in a personal colloquy in order to determine that the withdrawal was knowing and voluntary.
¶3 We determine that Andrea received a jury trial on the element regardless of the stipulation. The stipulation in this case does not constitute a withdrawal of the demand for a jury trial on an element. Despite the fact that the parties agreed to enter a stipulation regarding the first element of the ground for termination, the jury was presented with ample evidence of the element, was instructed on the element, and answered a verdict question on that element.
¶4 We further determine that there would be no error here even if the circuit court rather than the jury had decided the first element. Under the circumstances of this case, the circuit court was not required to engage in a personal colloquy in order to ascertain that a withdrawal was knowing and voluntary. Andrea agreed to the stipulation in open court. The stipulation addressed a single, undisputed, "paper" element [footnote omitted] where another element was the focus of the controversy at issue. Additionally, there was ample uncontroverted evidence to support the stipulated element.
¶66 The majority in Kelley H. [Steven V. v. Kelley H., 2004 WI 47, 271 Wis. 2d 1, 678 N.W.2d 856] declared that any right to trial by jury in the fact-finding phase of a termination case is statutory, not constitutional. Id., ¶¶41, 44. That conclusion is reasserted here. Majority op., ¶29. Yet there has never been a serious analysis whether Article I, Section 5 of the Wisconsin Constitution affords this right in termination cases.
¶2 ... This case involves this court's authority under 29 U.S.C. § 1132(a)(1)(B)-(e)(1) (2000) [footnote omitted] to review claims arising from an Employee Retirement Income Security Act (ERISA) governed plan for the recovery of benefits due under such a plan, the enforcement of rights under the terms of such a plan, or the clarification of rights to future benefits under such a plan. See Evans v. W.E.A. Ins. Trust, 122 Wis. 2d 1, 5, 361 N.W.2d 630 (1985). The case also involves 29 U.S.C. § 1133 and 29 C.F.R. § 2560-503-1 (2002) [footnote omitted].
...
¶4 ...We hold that the termination decision itself was arbitrary and capricious because Touchpoint's interpretations of the plan were inconsistent. We also are satisfied that Touchpoint's decision was arbitrary and capricious because Touchpoint's termination of benefits decision was made despite the external review agency's finding that the requested treatment met the standard of care and was medically necessary, and despite the external review agency recommending approval for the treatment. We further hold that the second termination letter of December 12, 2002, was arbitrary and capricious, because it did not provide a sufficient and adequate explanation of the reasons for Touchpoint's termination of benefits. As a result, the Summers were not provided with the opportunity for a full and fair review of the termination, which is required by 29 U.S.C. § 1133 and 29 C.F.R. § 2560-503-1.
¶5 Lastly, we hold that, given the inconsistent interpretations of the plan by Touchpoint, as well as the ambiguous policy provisions concerning participation in a clinical trial, the appropriate remedy for the termination of benefits in this case is the reinstatement of benefits forward from the date that the benefits were terminated.
¶58 I conclude that, because Touchpoint has the power to interpret and apply the policy, we are required to uphold the plan administrator's interpretation and application of the policy if it is reasonable. Firestone [Tire & Rubber Co. v. Bruch], 489 U.S. [101 (1989)] at 111. Touchpoint decided that the treatment for which benefits were sought is defined as an "experimental" treatment in the policy and that "experimental" treatments are excluded from coverage under the policy. This is a reasonable interpretation of the policy; and therefore, it is not arbitrary and capricious. I also conclude that the notice of denial of claim substantially complied with the notice requirements of 29 U.S.C. § 1133 and 29 C.F.R. § 2560.503-1(g). Accordingly, I would reverse the court of appeals and remand the case to the circuit court to dismiss the Summers' complaint on the merits.
¶3 Based on an examination of the words of the statute, its purpose, and our case law interpreting the statute, we conclude that a plaintiff is not required to prove reasonable reliance as an element of a § 100.18 misrepresentation claim. However, the reasonableness of a plaintiff's reliance may be relevant in considering whether the representation materially induced (caused) the plaintiff to sustain a loss. We further conclude that the circuit court erred in granting summary judgment because there remained genuine issues of material fact as to whether the reliance on the representation was unreasonable, that is whether the representation here was a material inducement causing the plaintiff's loss. Accordingly, we affirm the decision of the court of appeals.
¶71 I write separately because I believe that under different facts the court may rightfully determine, as a matter of law, that a party's reliance is so unreasonable that summary judgment or dismissal of a Wis. Stat. § 100.18 claim is appropriate.
The Federalist Society is now seeking applications for a Membership Director, a Publications Director, and an Associate Director of Development. [More]
we make a mistake if we see in the Lincoln memorial a starry-eyed innocence, a naivete ripe for debunkers and revisionists. The attitude of the generation that built the memorial was subtler and more knowing, and nicely expressed by President Harding at the dedication 86 years ago.
"Lincoln was a very natural human being," Harding insisted, "with the frailties mixed with the virtues of humanity. There are neither supermen nor demigods in the government of republics. It will be better for our conception of government and institutions if we will understand this fact."
Last month, Wisconsin voters did something that is routine in the United States but virtually unknown in the rest of the world: They elected a judge.
Sandra Day O'Connor, the former Supreme Court justice, has condemned the practice of electing judges. "No other nation in the world does that," she said at a conference on judicial independence at Fordham Law School in April, "because they realize you're not going to get fair and impartial judges that way."
After Reagan and the end of the Cold War, conservatism lost the ties that had bound together its disparate factions—libertarians, evangelicals, neoconservatives, Wall Street, working-class traditionalists. Without the Gipper and the Evil Empire, what was the organizing principle?
Contrast that distinctively American method of selecting judges with the path to the bench of Jean-Marc Baissus, a judge on the Tribunal de Grand Instance, a district court, in Toulouse, France. He still recalls the four-day written test he had to pass in 1984 to enter the 27-month training program at the École Nationale de la Magistrature, the elite academy in Bordeaux that trains judges in France.
“It gives you nightmares for years afterwards,” Judge Baissus said of the test, which is open to people who already have a law degree, and the oral examinations that followed it. In some years, as few as 5 percent of the applicants survive. “You come out of this completely shattered,” Judge Baissus said.
If Buckley’s magazine was to achieve the influence it sought, it had to do more than assault and attack the liberals. It had to bring together the conflicting strands of conservatism (the Christian and other traditionalists, the libertarians, the free marketers, the isolationists and, in later years, the neoconservatives, paleoconservatives and others too sectarian to mention), all held together by the glue of anti-Communism under the now-forgotten rubric of “fusionism.” And it had to provide them a forum to air their differences.
Nor will those seeking some admission of the networks' ideological bias find it here, amid Mudd's fond recollections of his visits to the Kennedys at Hickory Hill.
The book is peppered with descriptions of instructor- and student-types most lawyers encountered in law school, such as the sadistic professor, the gunner, and the do-gooder.
In recent months, there has been a lot of discussion about the “sub-prime mortgage crisis”, its causes, and what should be done about it. One response has been calls from a number of quarters for financial services reform. George Mason University Professor of Law Todd Zywicki, University of North Carolina Law Professor Melissa Jacoby, and Cleveland-Marshall College of Law Professor Kathleen Engel discuss these issues.
Multiple choice question: Local court rules are: (a) a trap for the unwary; (b) a useful means of regulating local practice in the circuit courts; (c) both; or (d) none of the above? Answer: it depends.
Chief Justice Shirley Abrahamson and James Alexander, Director of the Wisconsin Judicial Commission, will speak about “A Fair and Impartial Judiciary” at a luncheon during the League of Women Voters of Wisconsin Annual Meeting at the Pyle Center in Madison, June 7, 2008. ...
¶1 ...Rose [Mrs. Steinmann] challenges the circuit court's property division, which she argues included a flawed "double-counting" of assets; improper application of transmutation rather than tracing principles; and an erroneous failure to allocate debts related to unpaid taxes on assets from a lawsuit settlement, rather than a proper application of tracing principles. She also challenges the court's maintenance award. ...
Sixty-one percent (61%) say they trust voters more than judges or elected officials to decide important decisions facing the country. That figure includes 66% of unaffiliated voters, 64% of Republicans, and 54% of Democrats.
Overall, 16% say they trusted elected officials to make those decisions while 11% trust judges the most.
the increasingly bitter campaigns for the state supreme court seem to be a reflection of the role that the Wisconsin Supreme Court, like the U.S. Supreme Court on the national level, has come to play on many of the major issues of the day; and of the closely divided make-up of the court's current membership along ideological lines.
The replacement of a justice on one side of the ideological divide with someone from the other side can significantly alter the direction of the court on the most controversial issues it faces. Given the role that the supreme courts, both of Wisconsin and the United States, play as the final arbiters of some of the most important issues of the day, it is not surprising to see the kinds of battles over these seats that we have witnessed over the last decade. Attacks on U.S. Supreme Court nominees have been going on even longer. Unless one side or the other becomes clearly dominant, it is hard to see how things will be much different the next time a "crucial seat" on the Wisconsin Supreme Court comes up for election.
the Board of Governors supported a Wisconsin Trust Account Foundation (WisTAF) petition that encourages financial institutions in Wisconsin to provide interest rates for Interest on Lawyer Trust Accounts (IOLTA) that are comparable to those of similarly situated non-IOLTA business accounts.
The board approved President-elect Diane Diel’s appointments to the Nominating Committee for the FY 09 board chair. Committee members include Paul Norman, Madison, Chair; and Bill Domina, Marla Stephens, and Lynn Laufenberg, all of Milwaukee.
Former State Bar President Michelle Behnke, Madison, Nathaniel Cade Jr., Milwaukee,and John P. Macy, Waukesha,were elected to the ABA House of Delegates.
Feingold's career in the Senate today shines as a bright light for progressive Democrats across the country _ the "democratic wing of the Democratic Party," as Howard Dean put it.
This breach-of-contract claim presents the question whether a city or county may by resolution or ordinance alter the health benefits that it had previously promised for those who had accumulated sufficient work time but had not yet reached the age of retirement.
This case involves the level and cost of health coverage benefits available to a City of Milwaukee retiree.
Some background: Albert Loth was hired as an accountant with the city of Milwaukee in 1984. When he was hired, Loth claims he was told he would have “free” health care after retirement.
However, the city contends that the city’s employment handbook contains a provision that states that the “city will have the right to establish such procedures as it may deem necessary to restrict excessive costs in application of the benefits provided.”
In 1973, the city adopted a resolution outlining no-cost retiree health-care benefits under a “basic plan” to certain retirees between the ages of 55 and 65, based on years of service.
In July 2002, due to the rising cost of health insurance, the city adopted a new resolution to require retirees from management positions with 15 years of creditable service to pay the same portion of premiums paid by active management employees.
In later years, the city added other plans, including a Health Maintenance Organization plan with some restrictions on choice of physicians but no employee premium cost. Other plans were offered that required employee contributions toward the premium.
When the 2002 resolution was passed and at the time when it became effective, Loth had been a city employee for more than 15 years. However, he was not age 60 as of either date; he turned 60 on April 12, 2005 and retired on April 23, 2005.
After his retirement, the city continued to deduct the same health insurance premium as it had been deducting while he was an active employee. Loth filed suit, alleging claims for breach of contract, contending he was entitled to coverage under any city-offered health plan at no cost to him. The circuit court granted summary judgment to the city, concluding Loth had not developed a vested right in no-cost health insurance at the time the city adopted the 2002 resolution.
The Court of Appeals reversed [2008 WI APP 12], citing case law that established that an employer’s unilaterally adopted pension plan can be an offer for a unilateral contract, which the employee accepts and makes binding by performing the work requested of the employer.
The Court of Appeals stated that it had allowed employers to change the wages/benefits of their workers so long as the change was prospective only and the employee is informed of the change before beginning to perform the work.
A decision by the Supreme Court could clarify law in this area. Although this case involves a certain retiree, the case could have implication for public employers and employees statewide. From Milwaukee County.
This case, which was previously denied certification, examines underinsured motorist (UIM) coverage and could help resolve possible conflicts between Court of Appeals’ decisions on the topic.
Some background: Jonathan Lisowski, a passenger in his father's car, was injured in an auto accident caused by his friend – who was driving drunk. Several people were killed; Lisowski was injured. Lisowski settled his claim against the driver. He then sued Hastings claiming UIM coverage under the "Wisconsin Underinsured Motorists Coverage" endorsement to a business auto policy his father had purchased.
The policy identified one of the vehicles Lisowski's father owned as a "covered auto," but not the car in which Lisowski was injured. The declarations limited all coverage, including UIM coverage, to "covered autos." Because the stated purpose of the UIM endorsement was to modify the policy, however, the issue became whether the endorsement extended UIM coverage to injuries from the use of vehicles that were not identified as "covered autos."
Lisowski contends that a circuit court judge and the Court of Appeals have recognized the reasonableness of his arguments. He challenges the interpretation of language in the UIM coverage agreement and how that language may apply in this case.
The trial court found Lisowski's arguments persuasive but was bound by Crandall ex rel. Johnson v. Society Insurance [2004 WI App 34, 269 Wis. 2d 765, 676 N.W.2d 174], which said that the introductory language, "for a covered auto" in the UIM endorsement required Lisowski to be an occupant of "a covered auto" to trigger UIM coverage. Accordingly, it granted Hastings’ motion for declaratory judgment and dismissed Lisowski's claim.
On appeal, Lisowski argued the endorsement extended UIM coverage to injuries from the use of vehicles that were not identified in the policy as "covered autos." The Court of Appeals agreed but reached the same determination as the circuit court: it was bound by the holding in Crandall which ruled otherwise [unpublished opinion].
Hastings opposes review, arguing this case is fact driven and that all the courts involved properly held that there was no coverage pursuant to the Crandall decision. It contends that the vehicle was not a covered vehicle under the terms of the contract, which is confirmed by the declarations page of Hasting’s policy.
Hastings says that this court properly denied certification from the court of appeals and it would inappropriate to accept this case now. From Buffalo County.
Key to defeating the measure was using laypersons as spokespersons against the measure.
Focus groups that Barnett assembled indicated that judges were the worst messengers for the group, with lawyers being second worst.
This medical malpractice case, which is before the Supreme Court for a second time, arises out of the 1998 death of infant Adam Phelps at St. Joseph's Hospital. Adam died due to the negligence of physician Matthew Lindemann, a first-year unlicensed resident employed by the Medical College of Wisconsin Affiliated Hospitals (MCWAH). The cause of death was a combination of asphyxia due to cord entrapment and placental abruption, which impaired oxygen supply.
This case has a lengthy history dating from the bench trial in 2003, an appeal [2004 WI App 91, 273 Wis. 2d 667, 681 N.W.2d 571], and review by the Supreme Court. In Phelps v. Physicians Ins. Co., of Wisconsin, 2005 WI 85, ¶4, 282 Wis. 2d 69, 681 N.W.2d 571, the Supreme Court remanded “the matter to the circuit court for a determination of whether Lindemann was a “borrowed employee” of St. Joseph’s Hospital and therefore entitled to the cap protection as an “employee” of a health care provider under Wis. Stat. § 893.55(4)(b)
Following remand, the circuit court ruled that Lindemann was a "borrowed employee" of St. Joseph's. It also ordered that Gregory Phelps was entitled to the trial court's award of $200,000 emotional distress bystander damages due to Adam's injuries and death caused by Lindemann's and St. Joseph's negligence.
The Court of Appeals affirmed in part and reversed in part [2008 WI App 6]. It reversed the circuit court’s determination with regard to Lindemann’s “borrowed employee” status. Because it held Lindemann was not a “borrowed employee” of a health care provider, the Court of Appeals determined the Wis. Stat. Ch. 655 caps were irrelevant and declined to address whether the caps would prevent Gregory from obtaining the damages awarded for his emotional distress claim. It also noted the scope of the remand was limited to the "borrowed employee" issue and declined to address the validity of Gregory's emotional distress bystander award.
Physicians Insurance Company of Wisconsin and Lindemann (collectively, "PIC") now challenge the Court of Appeals’ rulings on several fronts, including whether case law precludes the award for emotional distress bystander damages to Gregory. PIC also asks the Supreme Court if rulings in previous cases apply only if the negligence which caused the death resulted from the acts or omissions of an individual who is a licensed "health care provider" or an employee of an authorized "health care provider."
Finally, PIC asks if it was appropriate for the Court of Appeals to make its own findings of fact, giving no deference to the circuit court's fact findings on remand, because the circuit court relied solely on the record and took no new evidence on remand. From Milwaukee County.
This personal injury action arises from an accident that occurred during cheerleading practice. While performing a stunt, cheerleader Brittany Noffke fell and hit her head on a tile floor. She sued her 16-year-old spotter, Kevin Bakke, the school district, and various insurers.
The circuit court entered a summary judgment dismissing her complaint, ruling that the spotter was immune from liability under Wis. Stat. § 895.525(4) as a co-participant in a team sport. It further determined that there were no exceptions to the rule of government immunity under Wis. Stat. § 893.80(4), so that the school district also was immune from liability.
The Court of Appeals affirmed the dismissal against the school district but reversed the dismissal against Bakke [2008 WI App 38]. It held that the facts were undisputed that Noffke and the spotter were not participating in a sport between opponents within the meaning of 895.525(4m). Accordingly, it determined that this section did not bar Noffke's negligence claim against Bakke.
Both Noffke and Bakke filed petitions for review. Noffke asks the Supreme Court to review if a cheerleading coach is entitled to discretionary immunity when she negligently directs inexperienced cheerleaders to attempt a dangerous stunt without the spotting and matting required by rules that govern the coach's duty.
Bakke's asks the Supreme Court to determine if Wis. Stat. § 895.525(4m) includes in its protective umbrella, cheerleading, thus, providing immunity from suit for Kevin Bakke's purely negligent acts. From La Crosse County.
This prisoner-litigation case involves a class action complaint filed on behalf of Milwaukee County jail inmates alleging constitutional violations by Milwaukee County and the Milwaukee County Sheriff based upon conditions at the jail.
Some background: In July 1996, the Legal Aid Society of Milwaukee, Inc. filed a class-action complaint on behalf of all persons then or in the future confined in the Milwaukee County jail. The action claimed overcrowded conditions led to the infliction of needless pain and suffering and creating a threat to the inmates’ mental and physical well being.
The parties resolved their differences in a consent decree, which was approved by the circuit court in May 2001. In the fall of 2004, the plaintiffs moved for enforcement of the consent decree, and sought a finding of contempt and damages for breach of the terms of the consent decree (contractual damages).
The circuit court found intentional contempt, but concluded that remedial sanctions were not available because the violations ended in May 2004, and there was no continuing contempt. The circuit court concluded that damages based on breach of contract were not available because the 2001 complaint did not request money damages, the relief sought applied to conditions for inmates and not damages, and the consent decree did not indicate either party contemplated money damages would be available in the event of a breach.
The Court of Appeals reversed [2008 WI APP 18]. It ruled that under Frisch v. Henrichs, 2007 WI 102, 304 Wis. 2d 1, 736 N.W.2d 85, which was decided while the appeal in this matter was pending, the remedy for sanctions for continuing contempt under Wis. Stat. § 785.04 applied. Therefore, it remanded for a determination as to the amount of the sanction.
Milwaukee County and the Milwaukee County Sheriff (the county) have asked the Supreme Court to review the interaction between statutes and case law applied to this case. A decision could have statewide impact.
The Wisconsin Counties Association has filed an amicus brief, contending that the Court of Appeals’ decision creates precedent with unforeseen consequences for parties who settle their disputed by entering into a consent decree. From Milwaukee County.
This certification from the District IV Court of Appeals involves questions about estate planning services provided by two attorneys and their law firms.
Some background: Robert and Ruth Tensfeldt, who had three adult children, divorced in Wisconsin in 1974. The divorce judgment incorporated a stipulation in which Robert agreed to execute and keep in effect a will “leaving not less than two-thirds of his net estate outright to the three adult children of the parties, or to their heirs by right of representation.”
One attorney is alleged to have negligently failed to provide the client relevant advice about the effect of Florida law on estate plans, while the other attorney is alleged to have aided and abetted the client in violating a stipulated provision of a Wisconsin divorce judgment requiring that he execute and maintain a will in his adult children’s favor.
The Court of Appeals asks the Supreme Court to examine, among other things, whether a trial court has authority to incorporate into a divorce judgment a stipulation requiring a party to maintain a will in favor of an adult child.
If the trial court has such authority, the Court of Appeals asks if such a stipulation is then enforceable only as a judgment or as a contract to make a will, or both. Also, should an attorney who advises the client that the will could potentially be challenged as a breach of contract, be excused from any third party liability under either a qualified immunity theory or some other good faith advice defense?
A decision by the Supreme Court could clarify issues not readily resolved by existing law. From Dane County.
This case examines whether an organization qualifies as a non-profit organization for the purposes of immunity under Wis. Stat. § 895.52, “the recreational immunity statute.”
Some background: In 2002, Elizabeth Callejas De La Trinidad and Marisol Aguilar-Torres drowned while at a picnic at Halter Wildlife, a hunting club in Pleasant Prairie. The plaintiffs, the girls’ parents and the administrators of their estates, sued Halter, its insurance carrier, and the on-duty lifeguard.
The defendants moved for summary judgment, claiming recreational immunity. The circuit court granted the motion. The plaintiffs appealed, and the Court of Appeals affirmed [unpublished opinion].
The Court of Appeals said the only issue presented was whether Halter was a non-profit organization as defined in § 895.52 (1) (c).
The Court of Appeals noted that Halter’s articles of incorporation identify it as a non-profit corporation, but the plaintiffs argue it is not because it was organized under statutes that control “for profit” corporations, and it has shareholders.
In asking the Supreme Court to review the case, the plaintiffs argue the essential characteristic of non-profits is that they cannot distribute their profits or net earnings to their directors, officers or members. They contend money raised from holding picnics had the effect of reducing dues for Halter’s members.
The defendants argue the case does not present a question of corporate organization – only whether Halter is a non-profit organization under the recreational immunity statute. From Kenosha County.
This case involves questions about a defendant’s right to a public trial.
Some background: The circuit court removed Dhosi Ndina’s disruptive family members from the courtroom during a portion of his trial on charges of first-degree recklessly endangering safety. Ndina had allegedly stabbed his nephew in the back at a family gathering in November 2002.
The trial court had entered a sequestration order and instructed the individuals involved in the disruption to remain silent. Disturbances recurred later in the trial, and the trial court ordered the exclusion of all family members except the mother. The defendant did not object to the exclusion or dispute the court’s observations.
The trial court concluded that the exclusion of disruptive family members did violate the defendant’s right to a public trial. The Court of Appeals [2007 WI App 268] concluded that the only context in which the defendant’s claim of a violation of his constitutional right to a public trial could be considered was in an ineffective assistance of counsel claim.
A decision by the Supreme Court could determine what kind of showing is necessary to establish a waiver of the fundamental right to a public trial. From Milwaukee County.
Niess ruled in September that McConkey did not have standing to sue on that issue.
Niess did, however, allow McConkey to proceed on the question of whether the referendum on the fall 2006 ballot asked two questions rather than one -- whether to ban gay marriage and whether to prohibit anything "substantially similar" to marriage. Significantly, a provision in the Wisconsin Constitution, known as the single subject rule, prohibits referendum questions from asking multiple questions.
...provided, that if more than one amendment be submitted, they shall be submitted in such manner that the people may vote for or against such amendments separately.
The Wisconsin Supreme Court has ruled only three times in the last 124 years on whether a constitutional amendment was improperly put to voters, Packard says. On two occasions [State ex rel. Hudd v. Timme, 54 Wis. 318, 11 N.W. 785 (1882) and Milwaukee Alliance v. Elections Board, 106 Wis. 2d 593, 317 N.W. 2d420 (1982)], the court ruled the amendment was constitutional. In State ex rel. Thomson v. Zimmerman [264 Wis. 644, 60 N.W.2d 416], however, the court in 1953 said a referendum question on redistricting did not pass the single amendment requirement and therefore the amendment was thrown out.
I also found highly offensive Mr. Basting's [State Bar President and WJCIC Chair Thomas Basting] statement in a press release that any attorney who referred to Justice Butler as "Loophole Louie" could be subject to discipline under the Wisconsin Rules of Professional Conduct. Apparently the importance Mr. Basting attaches to the First Amendment doesn't apply here. ... It is too bad that there weren't any loopholes for those attorneys like myself who objected to our dues funding the WJCIC. The creation of the WJCIC is an excellent argument for a voluntary State Bar.
Mr. Urbik also misinforms by claiming the WJCIC is or will be funded by mandatory bar dues. I think it is highly unlikely the costs of the committee will be charged to bar dues; instead, they will be subject to a Keller [v. State Bar of California, 496 U.S. 1 (1990)] deduction.
So as you read this, keep in mind that it is my opinion, not the official words of the State Bar or the Wisconsin Judicial Campaign Integrity Committee (WJCIC).
...we need to have a very serious debate about amending the Wisconsin Constitution to create a merit selection process that will ensure that Wisconsin's tradition of a competent, qualified, independent, fair, and impartial court will endure. There are other steps to be taken while that multi-year process unfolds (more on that next month)...
...Solicitor General Paul D. Clement will end his current service to the Department on June 2, 2008.
Nominated by President Bush on March 14, 2005, Clement was confirmed as Solicitor General on June 8, 2005, and was sworn in on June 13, 2005. Prior to his confirmation, he served for over four years as Principal Deputy Solicitor General, and during that period served for nearly a year as Acting Solicitor General. Clement’s tenure of over seven years in the Office of the Solicitor General is the longest period of continuous service in that office by an individual who served as Solicitor General since Samuel Phillips, who served from 1872-1885.
...
During his time in the Office of the Solicitor General, Clement argued 49 cases before the Supreme Court, prevailing in the vast majority of them. ...
The proposal encourages financial institutions around the state to provide interest rates for Interest on Lawyer Trust Accounts (IOLTA), comparable to those of similar business accounts.
Though the State Bar’s Board of Governors unanimously voted to support of the petition at its May 7 meeting, some questioned the peripheral impact of the proposal.
[Outgoing Presidetn Thomas] Basting was especially critical of the legal community for not voicing their distaste for the negative campaign tools used in this year’s race.
“I didn’t see lawyers come forward and say, ‘What the hell is wrong here?’” said Basting.
“Frankly, I was embarrassed by that.”
But other board members said the committee’s actions were more of an embarrassment to the State Bar. ...
A new wrinkle in the proposal states that the State Bar will provide funding and staff for the commission for the first three years.
“By then, it will have to justify itself,” said Diel, who added that no permanent funding solutions have been discussed with the state judiciary or Legislature.
The State Bar will invest $20,000 in start-up costs and an additional $50,000-$60,000 during the second and third year. Bar funding will come from a $300,000 reserve fund.
... Nor does the article mention the Board's [State Bar Board of Governors's] discussion over the true cost of the Access to Justice program. Instead, it simply parrots the "$20,000" cost without any mention of the staffing costs which are considerable. I estimate them to be $75,000/year, give or take $10,000. That would make the true first-year cost $95,000, not $20,000. ...
Lastly, there is no mention of how $300,000 of member money ended up in a "reserve fund." The Board of Governors never voted for that; it's input on what to do with last year's $775,000 surplus was not solicited. Rather, the executive committee made that decision for the full Board. ...
A fully searchable edition of the largest body of texts detailing the lives of non-elite people ever published, containing 197,745 criminal trials held at London's central criminal court.
Moments after being sworn in as the new State Bar president on May 8, attorney Diane S. Diel announced that she will seriously address the issue of whether or not the bar should abandon its mandatory nature.
“It is clear that it’s an issue of some passion for many of our members,” said Diel in a separate interview with the Wisconsin Law Journal. “We don’t elect candidates who run on a single issue unless that’s an important issue.”
“The assaults on the judiciary, in my opinion, cause us to be looking at the risk of creating a government system that will become a two-legged stool – Not one I would sit on. We need to be sure that all the legs of our foundation are strong and intact and we cannot do that without educating the people of the state of Wisconsin,” said Diel.
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“Remember, we do have three branches of government but as a profession we are unique,” she continued. “We are the only profession that is in charge of one of those three branches and that obligation is sacred and important and we need to live with it. ..."
John Voelker takes to the road with Chief Justice Abrahamson on four stops of her 72-county tour. Tag along on Voelker’s first-person account of adventures in snow and cold.
Before a recent question and answer session [video] she was handed a Capital Times article in which Republicans branded her "an ultra-liberal judicial activist." The article was published on March 18, 1989.
During National Library Week, WSLL [Wisconsin State Law Library] unveiled a new READ poster and READ bookmarks featuring Wisconsin Supreme Court Chief Justice Shirley Abrahamson. Produced by WSLL staff using American Library Association (ALA) graphics software, both pieces were modeled after ALA’s long-running series of celebrity posters to promote reading. ...
... There may be circumstances of an applicant who currently satisfies all requirements for admission to practice law, including character and fitness requirements, and possesses the requisite good moral character for admission, but whose recent history demonstrates rehabilitation from past chemical abuse or dependency, treatment for a mental health condition, or other conduct or condition that, if it should recur, would impair the applicant’s ability to practice law or pose a threat to the public. A conditional admission rule would allow the Board of Bar Examiners the leeway of admitting the applicant under conditions whereby the applicant would be monitored or until the applicant demonstrates rehabilitation from the conduct which gave rise to the Board’s concerns. ...
¶1 ...The plaintiffs [footnote omitted] accuse 24 taverns in the immediate vicinity of the University of Wisconsin campus in Madison and the Madison-Dane County Tavern League, Inc. (collectively, the defendants) of horizontal price-fixing violations under Wis. Stat. § 133.03(1) [footnote omitted] because, in response to pressure from city government to ban all drink specials after 8 p.m. in the city, the 24 taverns agreed to eliminate drink specials at their establishments on Friday and Saturday nights after 8 p.m. ...
¶2 ...The defendants contend that their conduct is immune from Wisconsin antitrust law under: (1) the so-called "implied repeal doctrine" articulated in Town of Hallie v. City of Chippewa Falls, 105 Wis. 2d 533, 314 N.W.2d 321 (1982) (Hallie I)...
¶3 We conclude that the defendants' challenged actions are immune from state antitrust law under the implied repeal doctrine of Hallie I. ...
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¶39 The "implied repeal doctrine" addresses situations in which there is no explicit statutory exception to antitrust law but it is reasonably clear that the legislature intended to allow municipalities to undertake an action that is anticompetitive. ...
¶137 To allow coercive tactics of individual aldermen, even coupled with the threat of potential future regulation, to rise to the level of democratically approved regulatory action is to strip from this country the fundamental protections that distinguish us from a tyrannical system of government. ...
Kammer said that, if he should succeed in making State Bar of Wisconsin membership voluntary, he would not join right away — at least not until an organization that is more responsive to members has been established.
That effort would be, at best, a long shot, said [current State Bar President Thomas] Basting, because the Wisconsin State Supreme Court decides on the issue, and in recent years has consistently come down in favor of mandatory membership.
"Mr. Kammer will find that trying to get this change made will be very difficult unless he gets the majority of the (association's) Board of Governors to go along with him," he said.
This brings me to the fourth approach I have discussed, which has variously been called "liberalism," or "judicial activism," or "not strict constructionism." In my view, a better and more descriptive term would be "constitutionalism."
Prior to the name change, the program specifically referenced students who successfully completed their first year of law school and who are “African American, Hispanic American, Asian American or Native American” as eligible applicants.
Materials also indicated that “members of other historically disadvantaged groups are considered on a case-by-case basis.”
Flores [Program Chair Roger Flores] admitted that the inclusion of specific ethnicities and races in earlier materials was a “mistake,” but also noted that in years past, more than just students who would have been considered minorities applied for the clerkships.
Minority Clerkship: A summer clerkship program promotes minority placements in settings where minorities traditionally have been underrepresented, and it assists employers interested in diversifying their legal staff.
First-year Marquette University Law School and University of Wisconsin Law School students of diverse backgrounds who are in good standing may apply. Successful applicants demonstrate a commitment to diversity and a record of academic achievement.
Whispers heard in the Milwaukee County courthouse: One special interest group has promised to spend $3 million on ads for the right candidate willing to run against [Wisconsin Supreme Court Chief Justice] Shirley Abrahamson, the state high court's chief justice for the past 11 years. ...
"It will take a lot more than $3 million," Abrahamson told members of the Journal Sentinel's editorial board and this reporter. ...
¶3 We agree with the State and conclude that State v. Gee [2007 WI App 32, 299 Wis. 2d 518, 729 N.W.2d 424] misinterpreted our decision in Brown [State v. Brown, 2006 WI 131, 298 Wis. 2d 37, 725 N.W.2d 262]. We conclude that a circuit court is not required to read the original sentencing transcript in every reconfinement hearing. Rather, the circuit court should be familiar with the particulars of the case at issue. That can be accomplished in any number of ways, and we acknowledge that this may differ from case to case. ...
¶2 ... We conclude that the forehead qualifies as an "other bodily member" under Wis. Stat. § 940.21, Mayhem. ...
¶3 ... We conclude that the violent crime in a school zone penalty enhancer [Wis. Stat. § 939.632] is not unconstitutional as applied to Quintana. ...
Justice Butler dissented from the adoption of that portion of the rule which permits the immediate destruction of paper copies of filed documents after scanning by the circuit court clerk, sub. (9) (c).
