Only John Doe judge has subpoena power

David Ziemer in today's Wisconsin Law Journal on Hipp v. Circuit Court for Milwaukee County, 2008 WI 67 (see this earlier post)

"A Look Back at the October Supreme Court 2007 Term" July 1, 2008 webcast

from the National Press Club, Washington, DC.

Panelists:
Hon. Rachel Brand, WilmerHale
Hon. Ted Cruz, Morgan, Lewis, & Bockius
Mr. Tom Goldstein, Akin Gump Strauss Hauer & Feld
Prof. Orin Kerr, George Washington University School of Law
Prof. Nelson Lund, George Mason University School of Law
Mr. Charles Rothfeld, Mayer Brown
Moderator: Ms. Jan Crawford Greenburg, ABC Legal Correspondent

The event is scheduled for 11:00 a.m. to 1:30 p.m. (CDT). The live webcast link indicates the panel discussion is expected to start at 11:40 a.m. (CDT).

This Week in Liberal Judicial Activism: Week of June 30, 2008

Ed Whelan at Bench Memos.

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

Back to the Center

Norman Ornstein in The New York Times, June 29, 2008, reviews Grand New Party: How Republicans Can Win the Working Class and Save the American Dream, by Ross Douthat and Reihan Salam

The core thesis of their book “Grand New Party” is that the working class in America — the non-college-educated half of the electorate — continues to ping-pong between the parties and is there for the taking by any group that can seriously and directly address its concerns.

Wisconsin Supreme Court Justice Ziegler won’t recover what she lent campaign

Patrick Marley in today's Milwaukee Journal Sentinel

The Sam’s Club Agenda

David Brooks in today's New York Times

Among the many dark tidings for American conservatism, there is one genuine bright spot. Over the past five years, a group of young and unpredictable rightward-leaning writers has emerged on the scene. ...

(via Just One Minute)

Jensen will likely get new trial

The U.S. Supreme Court rejects broad forfeiture by wrongdoing doctrine in Confrontation Clause analysis, overruling governing Wisconsin precedent on the issue, and almost certainly requiring a new trial for Mark Jensen.

No right to self-representation

A defendant may be competent to stand trial, but not competent enough to represent himself. Exactly how a trial judge is supposed to decide who falls into that category, the U.S. Supreme Court won't say.

'Rao v. WMA Securities, Inc.' 2008 WI 73

The Wisconsin Supreme Court today issued its decision in this case (2006AP813) affirming the Court of Appeals [unpublished decision].
Opinion by Chief Justice Abrahamson, and Justices Bradley, Crooks, and Butler
Concurrence by Justice Ziegler
Dissent by Justice Roggensack, with Justice Prosser


Civil Procedure: Default Judgments - Denial of Jury Trial on Issue of Damages - Hearing on Punitive Damages, Supreme Court Digest, by Professors Daniel D. Blinka and Thomas J. Hammer, Wisconsin Lawyer, September 2008


Discovery conduct waives right to jury trial, by David Ziemer, Wisconsin Law Journal, July 7, 2008


March 4, 2008 argument audio


(See earlier post on grant of review)

Bad Justice

Bad Justice: Don't Blame the Voters for the Ugly Election for the High Court, by Charles J. Sykes, Wisconsin Interest, June 2008

A constitutional right to a gun

Lyle Denniston at SCOTUSblog on the Court's decision today in District of Columbia v. Heller.

Robert Levy spoke on the case at our chapter's April 22, 2008 event.


Update: Blogging Heller, Rick Esenberg at Shark and Shepherd

'State v. MacArthur' 2008 WI 72

The Wisconsin Supreme Court today issued its decision in this case (2006AP1379-CR), on the Court of Appeals certification, affirming the Court of Appeals.
Opinion by Justice Ziegler, with Chief Justice Abrahamson, and Justices Crooks, Roggensack, and Butler
Concurrence by Justice Bradley
Justice Prosser did not participate.


March 4, 2008 argument audio


Prosser steps aside in priest case by Marie Rohde, Proof and Hearsay, Milwaukee Journal Sentinel


(See this earlier post on grant of review)

'State v. Davis' 2008 WI 71

The Wisconsin Supreme Court today issued its decision in this case (2006AP1954-CR), on the Court of Appeals certification, affirming the Circuit Court.
Opinion by Justice Ziegler, with Justices Crooks, Prosser, Roggensack, and Butler
Dissent by Justice Bradley, with Chief Justice Abrahamson

'Racine County v. Int'l Assoc. of Machinists and Aerospace Workers' 2008 WI 70

The Wisconsin Supreme Court today issued its decision in this case (2006AP964) reversing the Court of Appeals [unpublished decision].
Opinion by Justice Crooks, with Justices Prosser, Roggensack, and Ziegler
Dissent by Justice Bradley, with Chief Justice Abrahamson and Justice Butler


Arbitration: Separation of Powers - Vacated Order, Supreme Court Digest, by Prof. Daniel D. Blinka and Prof. Thomas J. Hammer, Wisconsin Lawyer, August 2008


(see earlier post on grant of review)

Certification in 'Polsky v. Virnich'

The Wisconsin Court of Appeals in this case (2007AP203) has today certified to the Supreme Court the question

whether officers or directors who are the sole owners of a corporation may manage that corporation for their own benefit at the expense of the corporation and its creditors.

Court of Appeals opinions week of June 23, 2008

Opinions June 26, 2008


Opinions June 25, 2008


Opinions June 24, 2008


Wisconsin Law Journal current case digests

Attorney is intent on revisions to bar admission

Jack Zemlicka at Wisconsin Law Journal, June 25, 2008, on Wiesmueller v. Kosobucki (W.D. Wis. 07-2601)

In a federal law suit against the Wisconsin Board of Bar Examiners (BBE) and the state Supreme Court, he [Christopher L. Wiesmueller] contends that the diploma privilege, which is only offered in Wisconsin, discriminates against graduates purely on a geographic basis and that graduates from law schools outside of the state should be given the same opportunity to practice without the rigors of a bar exam.

(see this earlier post)

Court wrestles with post-nuptial agreements

Gregg Herman in the Wisconsin Law Journal, June 20, 2008, on Steinmann v. Steinmann, 2008 WI 43 (see this earlier post)

'WIREdata, Inc. v. Village of Sussex' 2008 WI 69

The Wisconsin Supreme Court today issued its decision in this case (2005AP1473, 2006AP174, and 2006AP175), reversing in part and affirming in part the decision of the Court of Appeals, 2007 WI App 22, 298 Wis. 2d 743, 729 N.W.2d 757.
Opinion by Justice Crooks, with Justices Bradley, Prosser, Roggensack, and Ziegler
Concurrence by Chief Justice Abrahamson
Justice Butler did not participate


Public Records Law: Property Assessment Records - Data Collected and Maintained by Independent Contractor Assessors , Supreme Court Digest, by Professors Daniel D. Blinka and Thomas J. Hammer, Wisconsin Lawyer, September 2008


State high court rulings affect open government, by Christa O. Westerberg, Your Right To Know column, July 2008, Wisconsin Freedom of Information Council
(via WisOpinion)


Wisconsin Supreme Court issues ruling in open records case: Municipalities that turned over PDFs instead of databases did not violate law, by Mike Johnson, Milwaukee Journal Sentinel, June 26, 2008


March 13, 2008 argument audio


(See earlier post on grant of review)

'C. Coakley Relocation Systems v. City of Milwaukee' 2008 WI 68

The Wisconsin Supreme Court today issued its decision in this case (2006AP2292) affirming the decision of the Court of Appeals, 2007 WI App 209, 305 Wis. 2d 487, 740 N.W.2d 63.
Opinion by Justice Ziegler, with Chief Justice Abrahamson, and Justices Bradley, Crooks, Prosser, and Butler
Concurrence by Justice Roggensack


Civil Procedure: Statute of Limitation - Tolling, Supreme Court Digest, by Prof. Daniel D. Blinka and Prof. Thomas J. Hammer, Wisconsin Lawyer, August 2008


(See earlier post on grant of review)

'Hipp v. Circuit Court for Milwaukee County' 2008 WI 67

The Wisconsin Supreme Court on June 20, 2008 issued its decision in this case (2007AP230-W) affirming the decision of the Court of Appeals, 2007 WI App 202, 305 Wis. 2d 148, 738 N.W.2d 570.
Opinion by Justice Bradley, with Justices Crooks, Prosser, Roggensack, and Ziegler
Concurrence by Justice Butler
Chief Justice Abrahamson did not participate


Only John Doe judge has subpoena power: Subpoenas from clerk of court are invalid, by David Ziemer, Wisconsin Law Journal, June 30, 2008


April 10, 2008 argument audio


Case of the month, April 2008 summary and briefs

Certification in 'State v. Fernandez'

The Wisconsin Court of Appeals in this case (2007AP1403-CR) has certified to the Supreme Court this question.

In State v. Loutsch, 2003 WI App 16, ¶25, 259 Wis. 2d 901, 656 N.W.2d 781, we held that, when presented with evidence of a defendant’s ability to pay, the trial court must determine the reasonable amount of restitution the defendant will be able to pay within the term of the sentence. Does Loutsch properly interpret Wis. Stat. § 973.20 with respect to the setting of restitution at sentencing?

Certification in 'Harvot v. Solo Cup Company'

The Wisconsin Court of Appeals in this case (2007AP1396) has certified to the Supreme Court these questions.

1. Does the Wisconsin Family or Medical Leave Act (WFMLA), Wis. Stat. § 103.10, confer an implied statutory right to a jury trial in a civil action for damages?

2. In the alternative, under the test set forth in Village Food & Liquor Mart v. H & S Petroleum, Inc., 2002 WI 92, 254 Wis. 2d 478, 647 N.W.2d 177, does the Wisconsin State Constitution confer the right to a jury trial in a WFMLA civil action for damages?

League proposes requiring recusal in cases involving a campaign donor

The League of Woman Voters of Wisconsin Education Fund on June 20, 2008 filed a Petition with the Wisconsin Supreme Court

to adopt rules for recusal when a party in an action or the lawyers in an action has previously made a campaign contribution to or spent money on a media campaign relating to a judicial election for a judge who is presiding in the case.

In re creation of rules for recusal when a party or lawyer in a case made contribution effecting a judicial campaign (08-16)

Court of Appeals proposes requiring electronic filing of appellate briefs

The Wisconsin Court of Appeals on June 19, 2008 filed a Petition with the Supreme Court for rules changes

requiring appellate counsel to file an electronic copy of all appellate briefs and no-merit reports. The proposed rule changes also permit, but do not require, the filing of an electronic copy of the appendix.

In re Proposed Amendments to Wis. Stat. Rule 809.19, Wis. Stat. Rule 809.32, and Wis. Stat. Rule 809.80 relating to the Electronic Filing of the Appellate Briefs and No-Merit Reports (08-15)

This Week in Liberal Judicial Activism: Week of June 23, 2008

Ed Whelan at Bench Memos.

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

Six Uneasy Pieces

Keynote Address by Kenneth B. Davis, Jr. at the The International Conference on Legal Education Reform, Wisconsin International Law Journal, Volume 24, page 31

Taking More Risks Because You Feel Safe

Shankar Vedantam's "Department of Human Behavior" column in The Washington Post, June 9, 2008

"How well does government do in helping the market to improve what it does?" asked Clifford Winston, an economist at the Brookings Institution and the author of the 2006 book "Market Failure Versus Government Failure." "The research consistently finds that, in fact, government efforts to correct market failures have little effect, or actually make things worse."

"There is a tendency for people to say, 'If things are safer, then I will take more risk,'"

(via Arts & Letters Daily)

Actual malice follies

Gross disregard of journalistic standards still not enough for actual malice in defamation action.

Abrahamson gets early start on '09 re-election race

The WisPolitic staff reports, June 22, 2008

Justice wants a clean campaign

Abrahamson emphasizes her bipartisan support

Steven Walters in the Milwaukee Journal Sentinel, June 22, 2008

State Supreme Court rejects pharmacist's petition

The Eau Claire Leader-Telegram, June 20, 2008 reports on the Wisconsin Supreme Court's denial of review in Noesen v. State of Wisconsin Dept. of Regulation and Licensing, (2006AP1110). (see this earlier post)

(via WisPolitics)

Wisconsin Confidential

Wisconsin Confidential: The Mystery of the Wisconsin Supreme Court's Decision in Burbank Grease Services v. Sokolowski and it's Effect Upon the Uniform Trade Secrets Act, Litigation, and Employee Mobility, by Michael Ahrens, 2007 Wisconsin Law Review 1271

On Burbank Grease Services v. Sokolowski, 2006 WI 103, 294 Wis. 2d 274, 717 N.W.2d 781 (opinion linked at this earlier post)

Taming Microsoft Word 2007 in Your Practice: More Gain, Less Pain

from a May 12, 2008 CLE presentation at the Waukesha County Bar Association by Ross L. Kodner.

(and the Windows Vista Inside Story)

Part Two: Microsoft Vista? Yea or Nay?

Review granted in 'State v. Romero'

The Wisconsin Supreme Court has granted review in this case. (2007AP1139-CR)

This case examines questions about the standards used to evaluate hearsay statements contained in a search warrant affidavit.

Some background: A search warrant affidavit signed by a Milwaukee Police officer was offered in support of a search for cocaine at the Milwaukee residence of Jaime Romero. The affidavit, in part, relied on information relayed by an “unwitting co-conspirator” to a confidential informant.

Romero was charged with possession with intent to deliver cocaine. His motion to suppress the evidence for lack of probable cause to issue the search warrant was denied. Romero pled guilty and was sentenced to four years initial confinement and four years extended supervision. He appealed.

The Court of Appeals reversed [unpublished decision], concluding the affidavit was insufficient to provide probable cause for the search. Court of Appeals Judge Ralph Adam Fine dissented, concluding that the majority reached the wrong result by imposing an absolute chain of custody requirement. Judge Fine said if an absolute chain of custody is not needed to convict somebody, where the requisite proof is beyond a reasonable doubt, it is certainly unnecessary to establish probable cause to issue a search warrant.

The state asks the Supreme Court to review two issues:

Whether an affidavit in support of a search warrant states probable cause even if based in part upon an unwitting co-conspirator's statements to the reliable confidential informant?

Whether the good faith exception to the exclusionary rule applies where a neutral and detached magistrate issued a search warrant and the police executed a search in reliance upon it? From Milwaukee County.

Review granted in 'Froedtert Memorial Lutheran Hospital v. National States Insurance Co.'

The Wisconsin Supreme Court has granted review in this case. (2007AP934)

This case involves the interpretation of a Medicare supplement policy and sections of the Wisconsin Administrative Code.

Some background: Following a kidney transplant at Froedtert Memorial Lutheran Hospital in May 2000, Kathleen Ledger was discharged to another hospital on Sept. 15, 2000. She was readmitted to Froedtert Sept. 25-27, discharged and then readmitted to Froedtert on Oct. 26, where she received treatment until her death on Feb. 12, 2001.

Before Oct. 26, 2000, Ledger’s Medicare Part A coverage was exhausted, including her maximum lifetime benefits. However, on Oct. 26, she was covered by the terms of National’s Medicare medical supplement policy issued in 1998, also known as “Medigap.”

National States Insurance Co. seeks review of a decision [2008 WI App 58] affirming a summary judgment awarded to Froedtert and The Loren Ledger Trust. The decision held that National State’s Medicare supplement policy required it to pay the actual hospital charges Froedtert billed Ledger after her Medicare Part A benefits had been exhausted, and to pay 12 percent interest on the unpaid amount pursuant to Wis. Stat. § 628.46 (1) (1999-2000).

Froedtert claimed the policy requires payment of all charges, billed at its standard rates after Ledger was readmitted Oct. 26. National States asserted the policy requires payment of only what Medicare would have paid for these services if Medicare benefits had not been exhausted.

National States asks the Court to review the following issues:

May a hospital that has previously accepted Medicare benefits on behalf of a patient as payment in full for in-patient services collect its much higher "standard charges" after the expiration of the Medicare benefits period?

Did the Wisconsin Administrative Code require all Medigap policies sold in this state to provide coverage for a hospital’s increased charges after the expiration of the Medicare Benefits period?

Did National States’ Medigap policy limit the amount of coverage to the amount covered by Medicare?

Was the issue whether National States was required to pay the higher "standard" charges fairly debatable, precluding enhanced interest under Wis. Stat. § 628.46? From Milwaukee County.

Review granted in 'State v. Warbelton'

The Wisconsin Supreme Court has granted review in this case. (2007AP105-CR)

Jeffrey Warbelton seeks review of a decision [2008 WI App 42] affirming his conviction for stalking “with previous conviction for a violent crime.”

Warbelton raises one issue: whether the jury should hear evidence that he had a "previous conviction for a violent crime" and be instructed to make a finding on that matter during his trial for stalking while having "a previous conviction for a violent crime" under Wis. Stat. § 940.32(2) and (2m)(a).

Warbelton claims the jury should not hear evidence of a prior conviction because it is merely a penalty enhancer.

The Court of Appeals rejected this argument, holding that a previous conviction is a substantive element of the offense.

The Supreme Court has been asked whether the circuit court erred when it handled proof of the “previous conviction for a violent crime” requirement found in Wis. Stat. § 940.32 (2) and (2m) (a) (2001-02). From Winnebago County.

Review granted in 'Krier v. Vilione'

The Wisconsin Supreme Court has granted review in this case. (2006AP1573 and 2006AP2290)

This accounting liability case involves the plaintiffs’ claims that Donald Vilione, a partner in Virchow Krause, knowingly falsified accounting records for certain environment disposal companies in order to cover up and conceal his brother’s misappropriation of funds and expenditures.

Some background from the Court of Appeals’ decision [2007 WI App 235]: Henry J. Krier and Michael Vilione were long-time co-owners of three separate but interrelated companies involved in waste disposal – EOG Environmental, Inc., EOG Disposal and Vil-Kri. A dispute arose, and Krier filed suit over Michael Vilione’s alleged use of corporate assets for personal purposes.

The parties reached a mediated settlement, which laid out the ownership structure of companies and expressly exempted from the releases any claims of Krier, EOG Disposal and Vil-Kri against the accountant, who happened to be Michael Vilione’s brother, Donald Vilione and the accounting firm where he was employed, Virchow Krause.

The parties agreed Krier would become the sole owner of EOG Disposal and Vil-Kri, and Michael Vilione would become the sole owner of IOG Environmental.

Following settlement of the suit against Michael Vilione, Krier, EOG Disposal and Vil-Kri filed suit against Donald Vlione and Virchow Krause.

As a result of the alleged accounting malpractice, Krier, EOG Disposal and Vil-Kri claim to have lost significant income and profits and incurred unnecessary debt, attorney’s fees and expenses. Virchow Krause moved for summary judgment, arguing that the plaintiff’s claims were based almost entirely on Michael Vilione’s alleged thefts of EOG Environmental assets. Virchow Krause argued that only EOG Environmental or its current stockholders had standing to assert claims for damages to EOG Environmental.

The issue presently before the Supreme Court involves the trial court’s decision to grant summary judgment in favor of the defendants. The court of appeals reversed, ruling that there were genuine issues of material fact as to damages incurred by the plaintiffs-appellants.

The defendants have asked the Supreme Court to review the following issue:

Are the defendants entitled to summary judgment on claims based entirely on alleged injuries to a separate non-party corporation in which some of the plaintiffs have any ownership interest? From Milwaukee County.

Review granted in 'State v. Kramer '

The Wisconsin Supreme Court has granted review in this case. (2007AP1834-CR)

Defendant Todd Lee Kramer has asked the Supreme Court to review a Court of Appeals’ decision [2008 WI App 62] affirming his conviction for operating a motor vehicle while under the influence of an intoxicant.

Some background: Kramer was arrested for OWI after an officer observed his pick-up truck pulled over to the side of a highway with its hazard lights flashing. A police officer observed the vehicle and pulled behind the vehicle to see if there was a need for help.

The officer asked if he could help and then noticed the defendant’s speech was slurred and the odor of intoxicants coming from inside the truck. A subsequent investigation led to the defendant’s arrest for OWI.

The circuit court concluded that a seizure had occurred but that the seizure was legal because the officer was acting in a “community caretaker” function by stopping to inquire about the situation. The Court of Appeals said if the seizure in this case was justified, it was because the officer was acting in his community caretaker capacity. If the officer was not acting in a community caretaker capacity at the time of the seizure, the seizure was unlawful and the evidence of the defendant’s intoxication must be suppressed.

The defendant argued the officer was not engaged in a bona fide community caretaker activity because he was not in distress or signaling for help.

The state contended that even if Kramer had been “seized,” the seizure was made during the officer’s valid performance of the community caretaker function.

Kramer has asked the Supreme Court to review the following issues:

Was the stop of Todd Kramer's vehicle a seizure within the meaning of the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Wisconsin Constitution?

Was the stop of Todd Kramer's vehicle justified by the community caretaker exception to the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Wisconsin Constitution? From Columbia County.

Review granted in 'State v. Grady'

The Wisconsin Supreme Court has granted review in this case. (2007AP672-CR)

Marchand Grady has asked the Supreme Court to review a Court of Appeals’ decision [January 28, 2008 summarily] affirming his conviction on charges of first-degree homicide while armed with a dangerous weapon as party to a crime, possession of a short-barreled shotgun and possession of a firearm by a felon.

Some background: Grady was found guilty by a jury and sentenced to life in prison with the potential for release in 52 years. He raises two issues involving his Miranda rights and police interviews conducted on May 16 and 17, 2005.

Grady agreed to be questioned by police and was given his Miranda warnings before he was formally arrested. Police did not repeat the Miranda warnings after the arrest, which occurred after the second interview.

Grady argues that because he was not again given his Miranda warnings, a statement he made was involuntary and should have been suppressed.

The Court of Appeals affirmed the circuit court’s conclusion that Grady “knew exactly what he was doing and was not the subject of improper police coercion when he provided the information to police.”

Grady asks the Supreme Court to review two issues:

Did the trial court err by denying Grady's motion to suppress his first statement where his Miranda rights were not given to him after he was placed under arrest?

Did the trial court err by not suppressing Grady's second statement as being a product of the invalid first statement as a continuing violation of Grady's constitutional rights? From Milwaukee County.

'State v. Straszkowski' 2008 WI 65

The Wisconsin Supreme Court today issued its decision in this case (2006AP64-CR), affirming the Court of Appeals [unpublished opinion]
Opinion by Chief Justice Abrahamson, with Justices Bradley, Crooks, Prosser, and Roggensack

¶3 ... Because the circuit court did not consider the read-in charge to be admitted for sentencing purposes, we conclude that the defendant has failed to show that his guilty plea was not entered knowingly, intelligently, and voluntarily when he asserts that he was unaware that his agreement to have a sexual assault charge read in was an admission of the read-in charge for purposes of sentencing.

...

¶5 ... To avoid confusion, prosecuting attorneys, defense counsel, and circuit courts should hereafter avoid (as they did in the instant case) the terminology "admit" or "deemed admitted" in referring to or explaining a defendant's agreement to read in a dismissed charge. A circuit court should advise a defendant that it may consider read-in charges when imposing sentence but that the maximum penalty of the charged offense will not be increased; that a circuit court may require a defendant to pay restitution on any read-in charges; and that the State is prohibited from future prosecution of the read-in charge.

Concurrence by Justice Butler, with Justice Ziegler

¶100 A defendant's admission or acknowledgement of wrongdoing is an essential part of the read-in process. If a defendant who committed a crime has not acknowledged what he or she did wrong, why should the defendant benefit from having the charge dismissed with prejudice? On the flip side, an innocent criminal defendant should not be held responsible and accountable for conduct that may have been committed by someone else.

Criminal Procedure: Guilty Pleas - Read-in Offenses, Supreme Court Digest, by Prof. Daniel D. Blinka and Prof. Thomas J. Hammer, Wisconsin Lawyer, August 2008


January 16, 2008 argument audio


(see earlier post on grant of review)

'Sheboygan v. Nytsch' 2008 WI 64

The Wisconsin Supreme Court today issued its decision in this case (2005AP2767), remanding to the Court of Appeals, 2006 WI App 191, 296 Wis. 2d 73, 722 N.W.2d 626.
Per Curiam opinion

¶4 What concerns this court is the final footnote to the court of appeals' decision, in which the court characterized the unpublished decision upon which the circuit court relied as "wrongly decided." Id., n.6.

¶5 ...This court is fully aware that appellate courts and lawyers alike look to unpublished decisions to bolster legal arguments and to ensure consistency in outcome. However, our current rules do not sanction this practice.

...

¶8 IT IS ORDERED that the petition for review is granted, and the case is remanded to the court of appeals with directions to strike the language from footnote 6 as set forth herein.

Justice Ziegler did not participate.

Acuity must pay claim

Avrum D. Lank in today's Milwaukee Journal Sentinel on Acuity v. Bagadia, 2008 WI 62 (see this earlier post)

Court of Appeals opinions week of June 16, 2008

Opinions June 19, 2008


Opinions June 18, 2008

including Camacho v. Trimble Irrevocable Trust (2007AP1472)
Judges have duty to do independent research by David Ziemer, Wisconsin Law Journal, June 19, 2008


Opinions June 17, 2008

including Biskupic v. Cicero (2007AP2314)
No actual malice shown in defamation case, by David Ziemer, Wisconsin Law Journal, June 20, 2008
Appeals Court refuses to revive Biskupic lawsuit, by Robert Imrie of The Associated Press, LaCrosse Tribune, June 18, 2008
(via WisPolitics)


CaseLaw Express, Week of June 16, 2008


Wisconsin Law Journal current case digests

Admission of transcript error

David Ziemer in the Wisconsin Law Journal, June 18, 2008, on State v. Jorgensen, 2008 WI 60 (see this earlier post)

Certification in 'Milwaukee Journal Sentinel v. Department of Administration'

The Wisconsin Court of Appeals yesterday certified this case (2007AP1160) to the Supreme Court

to determine: (1) whether courts have jurisdiction to review the process the legislature used to amend the open records law by ratifying a collective bargaining agreement; and (2) if so, whether the process used was effective to bring about a change in the law.

...

The trial court granted summary judgment to the Newspapers. Based on Board of Regents v. Wisconsin Personnel Commission, 103 Wis. 2d 545, 309 N.W.2d 366 (Ct. App. 1981), it concluded courts have jurisdiction to review the legislature’s compliance with Wis. Stat. § 111.92, and the legislature’s failure to comply with the requirements set out in Board of Regents invalidated the attempt to modify the open records law in manner employed. The invalid legislative procedure did not create a new law that would constitute an exception to the open records law under Wis. Stat. § 19.35(1)(a). The court also concluded the provisions at issue did not implicate conditions of employment under Wis. Stat. § 111.93, and therefore did not supercede the open records act. Applying the balancing test identified in Hempel v. City of Baraboo, 2005 WI 120, ¶63, 284 Wis. 2d 162, 699 N.W.2d 551, the court concluded this was not an “exceptional case” where public interest in nondisclosure would outweigh public interest in disclosure.

High court should reject secrecy, Wisconsin State Journal editorial
(via The Wheeler Report)


High court to consider open records issue, by Stacy Forster, NewWatch
(via The Wheeler Report)

'Sanders v. Estate of Sanders' 2008 WI 63

The Wisconsin Supreme Court today issued its decision in this case (2006AP424), reversing the Court of Appeals [memo opinion].
Opinion by Justice Crooks for a unanimous court

¶37 We are satisfied that Sanders did not waive her right to an appeal by stipulating to the entry of the circuit court's February 10, 2006 order. ... Here, the stipulation expressly noted that it did "not . . . waive any appeal rights that ... Sanders ... may have which are expressly reserved." Accordingly, giving effect to the parties' clear intention, we are satisfied that Sanders did not waive her right to an appeal because of the stipulation. [footnote omitted]

...

¶39 Based upon our review of the record, we are satisfied that the February 10, 2006 order of the circuit court met the requirements of a final order in a probate matter. The February 10, 2006 circuit court order specifically noted it dismissed all claims of Diane Sanders on the merits.

Justices Prosser and Roggensack did not participate.


Appellate Procedure: Final Order - Waiver, Supreme Court Digest, by Prof. Daniel D. Blinka and Prof. Thomas J. Hammer, Wisconsin Lawyer, August 2008


April 4, 2008 argument audio


(see earlier post on grant of review)

'Acuity v. Bagadia' 2008 WI 62

The Wisconsin Supreme Court today issued its decision in this case (2006AP1153 and 2006AP1974), affirming the Court of Appeals, 2007 WI App 133, 302 Wis. 2d 228, 734 N.W.2d 464.
Opinion by Justice Roggensack for a unanimous court

"¶3 ... Acuity is liable for the damages entered against UNIK, because Acuity's [CGL] policy assures coverage for the copyright and trademark infringement UNIK committed as a result of advertising Symantec's products."

Insurance: Comprehensive General Liability Policy -Advertising Injury, Supreme Court Digest, by Prof. Daniel D. Blinka and Prof. Thomas J. Hammer, Wisconsin Lawyer, August 2008


Acuity must pay claim: Court rules policy covered client’s loss, by Avrum D. Lank, Milwaukee Journal Sentinel, June 19, 2008


(see earlier post on grant of review)

Steinmann decision contains puzzling implications

Wisconsin Law Journal, June 16, 2008, on Steinmann v. Steinmann, 2008 WI 43 (see this earlier post)

Class action status given to Wis. bar exam lawsuit

The Associate Press reported that U.S. District Judge Barbara Crabb has so ruled in an action alleging the diploma privilege unconstitutionally discriminates against graduates of schools outside Wisconsin.

(via WisPolitics)

Rediscovering the Lawyer School: Curriculum Reform in Wisconsin

by Keith A. Findley, Wisconsin International Law Journal, Volume 24, page 295

To some extent, the limitations of the case method, as practiced in American law schools, arise from the fact that the “cases” that are studied are not really cases at all, but merely the end-product of a case—the post hoc rationalizations of judges— almost always appellate judges—for the decisions they reach.

Dress for success

Who knew Terrence Berres was such a fashionista?

Civil Gideon

Ted Frank's remarks on the nonsense known as "Civil Gideon" to the American Constitution Society.

Surely, you must be joking?

I'm not joking, and don't call me "Shirley."

The Wisconsin Supreme Court has actually held that an attorney may testify as an expert witness regarding the definition of a word in a statute.


(and see this earlier post --TRB)

This Week in Liberal Judicial Activism: Week of June 16, 2008

Ed Whelan at Bench Memos.

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

Judge, prosecutor erred in case

Marie Rohde in the Milwaukee Journal Sentinel, June 15, 2008, on State v. Jorgensen, 2008 WI 60 (see this earlier post)

Judging 'Ziervogel'

Judging Ziervogel: The Twisted Path of Recent Zoning Variance Decisions in Wisconsin, by Alan R. Madry, 91 Marquette Law Review 485 (Winter 2007)

On State ex rel. Ziervogel v. Washington County Board of Adjustment, 2004 WI 23, 269 Wis. 2d 549, 676 N.W.2d 401 (link to opinion at this earlier post), and State v. Waushara County Board of Adjustment, 2004 WI 56, 271 Wis. 2d 547, 679 N.W.2d 514 (link to opinion at this earlier post)

'Lessons' in statutory interpretation

The Seventh Circuit holds that "less" cannot be read as "more," no matter how absurd the plain meaning of the statute is.

Congress here rather reminds me of the old Smothers Brothers joke about the "less ons" and the "more ons," which concludes, "Q. So who's running the country?" "A. The morons."

No expectation of privacy on school bus

I've said it before, and I will say it again: I will quit smoking two packs of cigarettes a day when appellate courts stop making up ridiculous multi-factor tests.

In other words, I will keep smoking until I die.


(and see this earlier post --TRB)

'State v. Jorgensen' 2008 WI 60

The Wisconsin Supreme Court today issued its decision in this case (2006AP1847-CR), reversing the Court of Appeals [unpublished opinion]
Opinion by Justice Ziegler, with Justices Crooks, Prosser, and Roggensack

¶54 As a result of the November 10 hearing transcript ["a plea and sentencing hearing, on a matter unrelated to this appeal"] being read to the jury and the State's closing argument ["prosecutor's assertion of personal knowledge of the facts"], Jorgensen was denied basic constitutional rights at critical junctures of his short trial. We conclude that the unobjected to errors of the judge and the prosecutor in this case are fundamental, obvious, and substantial; and the State has failed to meet its burden of proof that these errors were harmless. Thus, we conclude that these errors constitute plain error. ...

Concurrence by Chief Justice Abrahamson, with Justices Bradley and Butler

¶60 The majority opinion rightfully notes that there is no bright line test for when an error constitutes "plain error" or when reversal is mandated. [footnote omitted] Rather, courts must weigh the particular facts of each case to determine whether reversal is warranted. [footnote omitted] To that end, I would follow the analysis I have set forth: Plain error may be found when the court's overall conclusion is that there was error; the error is obvious; and the State fails to meet its burden of proving that the error did not affect substantial rights.

Admission of transcript error: Judge’s, prosecutor’s statements infected trial, by David Ziemer, Wisconsin Law Journal, June 18, 2008


Judge, prosecutor erred in case: High court tosses man’s conviction, by Marie Rohde, Milwaukee Journal Sentinel, June 15, 2008

30+ Hot Legal PC Tips, Gadgets and Web Resources in 30 Minutes

from a May 12, 2008 CLE presentation at the Waukesha County Bar Association by Ross L. Kodner

DOJ asks State Bar to get involved in 'Siefert' case

The Wisconsin Department of Justice has sent a memorandum to our State Bar suggesting the Bar assist in the defense against Milwaukee County Circuit Judge John Siefert's free speech challenge to provisions of the Wisconsin Code of Judicial Conduct, SCR 60.06(2)(b)(1), (2)(b)(4), and (4). (see this earlier post)

(via The Wheeler Report)


Presumptuous request, by David Ziemer, Wisconsin Law Journal, June 13, 2008

State Bar welcomes 131 new members, U.W. Law School class sworn in at Capitol

Our State Bar's report includes remarks by Justice Louis B. Butler Jr.

...It is the law that brings order into the affairs of people and enables all of us to lift our sights, to develop the arts, to pursue knowledge, to enjoy life among our fellow citizens. Law gives us the individual security that we can obtain in no other way. It is the cement that holds our free society together. While it is not the end in itself, it is a means to an end. Our legal system is simply an attempt to institutionalize our sense of justice and to free us from the terror of the unpredictability of arbitrariness. ...

Update: Butler says hello and goodbye to new attorneys, by Jack Zemlicka, Wisconsin Law Journal, June 13, 2008

Court of Appeals opinions week of June 9, 2008

Opinions June 12, 2008


Opinions June 11, 2008


Opinions June 10, 2008

including State v. Jackson (2007AP1362-CR)
Weapons conviction reversed, by Marie Rohde, Proof and Hearsay


CaseLaw Express, Week of June 9, 2008


Wisconsin Law Journal current case digests

Levine wants public image money added to Keller reduction

Jack Zemlicka reports in the Wisconsin Law Journal, June 10, 2008, on a controversy over the $9.50 amount set for 2008-09 at our State Bar's Board of Governors meeting in February.

According to State Bar Public Relations Coordinator Thomas Solberg, more than 7,400 attorneys opted for the Keller [Keller v. State Bar of California, 496 U.S. 1 (1990)] reduction in the fiscal year 2007-08...

He [Past President Steve Levine] contended that the portion of dues designated for public image promotion does not fall within the definition of “regulating the legal profession or improving the quality of legal services.”

But during the February discussion, President Thomas J. Basting, Sr., indicated that the Executive Committee and counsel to the State Bar determined that campaigns designed to improve the image of the attorneys is a chargeable item to members in a mandatory bar.

Appellate digests, June 2008

Supreme Court Digest and Court of Appeals Digest by Professor Daniel D. Blinka and Professor Thomas J. Hammer in Wisconsin Lawyer

The Truth About Justice Scalia and Sarah Jessica Parker

At Legal Times

(via Althouse)

'State v. LaCount' 2008 WI 59

The Wisconsin Supreme Court today issued its decision in this case (2006AP672-CR), affirming the Court of Appeals, 2007 WI App 116, 301 Wis. 2d 472, 732 N.W.2d 29
Opinion by Justice Crooks, with Justices Prosser and Ziegler

¶4 ... we hold as follows: first, that the circuit court did not erroneously exercise its discretion in admitting the expert opinion testimony of Attorney David Cohen that LaCount had engaged in a securities transaction; second, that the evidence presented at trial was sufficient to support LaCount's conviction for securities fraud; third, that the circuit court did not err by allowing into evidence the results of the search of GP&L's [Gates, Paul & Lear, L.L.C.] office; and, fourth, that the circuit court's finding that LaCount was a habitual criminal did not violate LaCount's right to a jury trial on that issue.

Concurrence by Justice Bradley, with Chief Justice Abrahamson, and Justice Butler

¶60 As the majority notes, LaCount has utterly failed to establish that any particular piece of evidence was seized from his personal office as opposed to being seized from another place in GP&L's offices. He has therefore failed to establish that he had a reasonable expectation of privacy in any record.

...

¶62 Rather than ending its inquiry with the determination that LaCount has failed to meet his burden, the majority makes several unnecessary and problematic determinations...

Concurrence by Justice Roggensack

¶72 ... I write separately to point out the following: (1) it was an erroneous exercise of discretion to permit an expert witness, Cohen, to define "investment contract," which is a legal term of art, because explaining the law to the jury is the exclusive province of the circuit court; (2) it was also an erroneous exercise of discretion to permit Cohen to testify that LaCount committed an element of the crime——here, the sale of a security in the form of an investment contract. However, because I also conclude that the circuit court's errors were harmless, a new trial is not warranted. ...

Criminal Law / Procedure: Securities Fraud - Expert Legal Opinion - Execution of Search Warrant at Business Office - Determination of Habitual Criminality by Court, Supreme Court Digest, by Prof. Daniel D. Blinka and Prof. Thomas J. Hammer, Wisconsin Lawyer, August 2008


Attorneys can testify as expert witnesses: Testimony regarding definition of security was properly admitted, by David Ziemer, Wisconsin Law Journal, June 16, 2008


Oral argument Audio, January 16, 2008


(see earlier post on grant of review)

'State v. Plude' 2008 WI 58

The Wisconsin Supreme Court today issued its decision in this case (2005AP2311-CR), reversing the Court of Appeals [unpublished decision].
Opinion by Justice Roggensack, with Chief Justice Abrahamson, and Justice Bradley, Crooks, and Prosser

¶3 We conclude that the discovery that [prosecution expert witness Dr. Saami] Shaibani testified falsely about his credentials is newly-discovered evidence that gives rise to a reasonable probability that, had the jury heard Shaibani's misrepresentation about his credentials, it would have had a reasonable doubt as to Plude's guilt. Accordingly, we vacate Plude's conviction and remand to the circuit court for a new trial.

Concurrence by Justice Butler

¶51 ... I write separately because I also agree with Justice Ziegler that this matter can be reversed pursuant to Wis. Stat. § 751.06, discretionary reversal, as the real controversy has not been fully tried. ...

Concurrence by Justice Ziegler

¶59 I believe we should reverse in the interest of justice. The majority, on the other hand, reverses on a theory of newly-discovered evidence. This, however, produces five points of concern that preclude me from joining the majority. First, I disagree with how the majority opinion views the theory of the case, both for the State and the defense. Second, Plude never argued the newly-discovered evidence theory set forth by the majority, and thus, the circuit court could not have erroneously exercised its discretion. Third, the newly-discovered evidence theory does not dictate reversal in this case. Fourth, I do not believe the majority explains why this case is different from other cases where an expert lied about his or her credentials. As a result, I believe the majority opinion may be viewed as contrary to precedent. I, however, find this case distinguishable from other Wisconsin precedent. Fifth, I fear the majority opinion could be viewed as decreasing the circuit court's role in evaluating expert testimony.

'State v. Duchow' 2008 WI 57

The Wisconsin Supreme Court today issued its decision in this case (2005AP2175-CR), reversing the Court of Appeals [unpublished decision].
Opinion by Justice Roggensack for a unanimous court

¶1 We review an unpublished court of appeals decision [footnote omitted] reversing a circuit court's [footnote omitted] denial of Brian Duchow's (Duchow) motion to suppress threatening statements he directed to a disabled child aboard a public school bus. The child, Jacob M., surreptitiously recorded Duchow's statements using a voice-activated tape recorder that his parents placed in his backpack. ...

¶2 The dispositive issue in this appeal is whether Duchow's tape-recorded statements were "oral communication" as defined in Wis. Stat. § 968.27(12), a part of the Electronic Surveillance Control Law. We conclude that the statements were not "oral communication" because Duchow had no reasonable expectation of privacy in the statements. Because the statements are not "oral communication," they do not fall within the scope of the Electronic Surveillance Control Law; and therefore, the Electronic Surveillance Control Law provides no basis for suppression. [footnote omitted]

"Baby Mama Drama" Judge No Stranger To Strange Rulings (Volume I), by Jeff Wagner. Created: Jan 22, 2009. Updated: Jan 23, 2009


Evidence: Recorded Statements - Oral Communications, Supreme Court Digest, by Prof. Daniel D. Blinka and Prof. Thomas J. Hammer, Wisconsin Lawyer, August 2008


Recording on school bus is admissible, by David Ziemer, Wisconsin Law Journal, June 13, 2008

Retired U.S. justice O'Connor unveils video game

Claudia Parsons reported for Reuters

America's first female Supreme Court justice unveiled a videogame project on Wednesday to teach children how courts work, saying she wanted to counter partisan criticism that judges are "godless" activists.

(via Feddie at Southern Appeal)

'Made whole' doctrine does not apply

David Ziemer in the Wisconsin Law Journal, June 9, 2008, on Muller v. Society Insurance, 2008 WI 50 (see this earlier post)

Social Host Liability for Underage Drinking

Mark R. Hinkston in Wisconsin Lawyer, June 2008, on Nichols v. Progressive Northern Insurance Co., 2008 WI 20 (see this earlier post)

This Week in Liberal Judicial Activism: Week of June 9, 2008

Ed Whelan at Bench Memos.

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

Thank You and Farewell

Thomas J. Basting Sr. in the President's Message column of Our State Bar's Wisconsin Lawyer magazine, June 2008

So, as you might have guessed by now, although I leave you as State Bar president, I am not going away. I intend to dedicate my time in the future to judicial election reform.

Tossed suit will cost lawyer

Marie Rohde reports in the Milwaukee Journal Sentinel, June 7, 2008, on Donohoo v. Action Wisconsin, 2008 WI 56. (see this earlier post)

Supreme Court allows suppression of evidence

The Wisconsin Law Journal, June 6, 2008, on State v. Popenhagen, 2008 WI 55

In a landmark ruling June 4, the Wisconsin Supreme Court reversed decades of precedent, and held that suppression of evidence may be a remedy for a statutory violation, even in the absence of a constitutional violation, or express statutory authority.

(see this earlier post)

On the Subject of Backup

from a May 12, 2008 CLE presentation at the Waukesha County Bar Association by Ross L. Kodner

See Learn the different types of data backups, a Build Your Skills feature at Tech Republic, December 7, 2001

Alcohol provider is not liable for all injuries

David Ziemer in the Wisconsin Law Journal, June 5, 2008, on Richards v. Badger Mutual Insurance, 2008 WI 52 (see this earlier post)

'Donohoo v. Action Wisconsin' 2008 WI 56

The Wisconsin Supreme Court today issued its decision in this case (2006AP396), reversing the Court of Appeals [unpublished opinion].
Opinion by Justice Bradley, with Chief Justice Abrahamson, and Justices Crooks and Butler

¶57 Because the speech [by Grant E. Storms] is ambiguous, the reasonable alternative interpretation of Storms' speech that Donohoo [attorney for Storms] provides does not permit an inference of actual malice. Action Wisconsin's statements [in a press release] were based on one of at least two rational interpretations.

...

¶71 ...In light of the time and lack of complexity of the issues, the [trial] court determined that Donohoo had failed to conduct a reasonable inquiry prior to filing the suit. This determination is not clearly erroneous. Additionally, consistent with legal authority, the circuit court concluded that there was no basis in fact or law that would support a claim that Action Wisconsin's statements were made with actual malice. Accordingly, we conclude that the circuit court's determination was not an erroneous exercise of its discretion.

¶72 In addition to its determination that Donohoo commenced the lawsuit frivolously, the circuit court determined that Donohoo continued the lawsuit even though he knew or should have known that the claim was brought "without any reasonable basis in law or equity." Wis. Stat. § 814.205(3)(b). [sic]... Here, the court explained that Action Wisconsin's letters to Donohoo put him on notice that there was no support for the element of actual malice, but that Donohoo ignored the warnings and failed to explain how he proposed to show actual malice.

Dissent by Justice Roggensack, with Justices Prosser and Ziegler

¶110 Action Wisconsin's statement on its website that Storms was "apparently advocating the murder" of homosexuals is the focus of this lawsuit. ...

...

¶122 Given the context of where (as a press release placed on the internet) and when (during the legislative debate on a highly charged issue on which Action Wisconsin had taken a position), Action Wisconsin had an obvious reason to make legislative members uncomfortable for their association with Storms and his beliefs, even while doubting the truth of its allegation against Storms. [citation omitted] Stated otherwise, a reasonable attorney in the position of Attorney Donohoo could have believed that a reasonable jury could find that Action Wisconsin knew the statement was not true or made it with reckless disregard as to its truth, because the statement was part of Action Wisconsin's attempt to promote one side of a highly charged political issue. If the jury so found, then Attorney Donohoo would have proved that Action Wisconsin published the statement on its website with actual malice.

Civil Procedure: Frivolous Actions - Defamation, Supreme Court Digest, by Prof. Daniel D. Blinka and Prof. Thomas J. Hammer, Wisconsin Lawyer, July 2008


Court: Butler had no duty to recuse self from case, by David Ziemer, Wisconsin Law Journal, July 31, 2008


Lawyer seeks Butler disqualification, by Marie Rohde at Proof and Hearsay


Tossed suit will cost lawyer: Defamation action against gay rights group was frivolous, by Marie Rohde, Milwaukee Journal Sentinel, June 7, 2008


Gay rights group wins court costs, by Marie Rohde

Court of Appeals opinions week of June 2, 2008

Opinions June 5, 2008


Opinions June 4, 2008


Opinions June 3, 2008

including Pagel v. Marcus Corporation (2007AP1369)
Hilton wins lawsuit, by Marie Rohde, Proof and Hearsay


CaseLaw Express, Week of June 2, 2008


Wisconsin Law Journal current case digests

A New Sexual Constitution?

Michael Uhlmann at The Catholic Thing, June 4, 2008

(via Dad29)

Mr. Uhlmann was the featured speaker at our chapter's September 19, 2003 and June 29, 1995 events.

Liveblogging the Maclean’s Trial

Andrew Coyne, national editor of Maclean's magazine, at proceedings before the British Columbia Human Rights Commission. A complaint was filed against Macleans's based on its publishing an excerpt from America Alone, by Mark Steyn.

(via Five Feet of Fury)

'State v. Popenhagen' 2008 WI 55

The Wisconsin Supreme Court today issued its decision in this case (2006AP1114-CR), reversing the Court of Appeals, 2007 WI App 16, 298 Wis. 2d 388, 728 N.W.2d 45

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

¶4 We conclude that suppression of both the bank documents and the defendant's incriminating statements in the present case is an appropriate remedy when the bank documents were obtained in violation of Wis. Stat. § 968.135 and when the incriminating statements were obtained by law enforcement officers confronting the defendant with the unlawfully obtained bank documents. Accordingly, we conclude that the circuit court did not err as a matter of statutory interpretation in granting the defendant's motion to suppress the bank documents and the defendant's incriminating statements.

Concurrence by Justice Prosser

¶99 I concur in this result. However, because I share some of the concerns voiced in Justice Roggensack's dissenting opinion, I write separately to explain my position.

Concurrence and dissent by Justice Ziegler

¶142 The State's subpoena was fatally defective. Absolutely nothing was done correctly with respect to this subpoena. The district attorney had no authority to request it, and the judge should not have signed it. If there is a remedy for this unusual statutory violation, it lies in the court's inherent authority to administer justice since the legislature did not provide for suppression as a remedy in the statute and the violation did not invoke constitutional protections. The proper remedy in a case like this, where no bad faith exists, is to permit the judge——when the error is discovered——to quash the subpoena and require the State to subsequently seek the documents through a properly enforced subpoena.

Dissent by Justice Roggensack

¶156 I dissent from the majority opinion because I conclude that controlling precedent, as established more than 20 years ago by the appellate courts of this state, precludes suppressing Popenhagen's bank records and her subsequent incriminating statements. I reach this conclusion because: (1) Wis. Stat. § 968.135 does not authorize the suppression of Popenhagen's bank records as a remedy for the circuit court's failure to find probable cause that the bank records were linked to the commission of a crime; and (2) Popenhagen has no privacy right in her bank records under either the Fourth Amendment of the United States Constitution or Article I, Section 11 of the Wisconsin Constitution.

Criminal Procedure: Documentary Subpoena - Wis. Stat. Section 968.135 - Suppression as Remedy for Failure to Comply with Statute, Supreme Court Digest, by Prof. Daniel D. Blinka and Prof. Thomas J. Hammer, Wisconsin Lawyer, July 2008


Supreme Court allows suppression of evidence, Wisconsin Law Journal, June 6, 2008


Bank records evidence suppressed, by Marie Rohde, Proof and Hearsay

Statistical Reports May 2008

Wisconsin Supreme Court

Wisconsin Court of Appeals

'State v. Keyes' 2008 WI 54

The Wisconsin Supreme Court today issued its decision in this case (2004AP1104-CR and 2004AP1105-CR), affirming the Court of Appeals 2007 WI App 163, 304 Wis. 2d 372, 736 N.W.2d 904.
Opinion by Justice Bradley for a unanimous court

¶34 In sum, we determine that under the language of the statute [§ 779.02(5)], the Keyes [Angela and Matthew] are required to pay trust fund money proportionally to subcontractors in cases of deficiency. Here, the uncontroverted evidence is that Angela was paid while $47,000 in claims from subcontractors remained unpaid. Such payments would constitute use of trust fund money for "any other purpose [before] all claims . . . have been paid in full or proportionally in cases of a deficiency." Our interpretation is further supported by the statutory purpose of § 779.02(5), which is to both protect owners from paying twice and secure payments for subcontractors and workers. Accordingly, we determine that the circuit court's finding of probable cause was based on a proper interpretation of the statute.

...

¶46 It is not clear whether the unaccounted for $36,036.28 was merely profit. Further, the court of appeals' approach fails to explain how to construe "profit," implies that contractors or subcontractors may not receive profit on a project until the project ends, and is not required under Sobokowiak [State v. Sobokowiak, 173 Wis. 2d 327, 496 N.W.2d 620 (Ct. App. 1992)]. We therefore disagree with the court of appeals that § 779.02(5) prohibits prime contractors acting as subcontractors from receiving profit prior to paying other subcontractors for their labor and materials.

...

¶52 At the preliminary hearing Jones testified that the payments to Angela had not been supported by adequate documentation. Additionally, she testified that she was dubious that the Keyes were entitled to all of the money they claimed as payment for Matthew Keyes' labor.

¶53 The testimony provided by Jones is substantial, and it is sufficient to support the circuit court's determination that subcontractors should have received proportionate payment. The evidence presented therefore provides a substantial ground for the circuit court's exercise of judgment in determining that a felony had been committed by the Keyes. We therefore decline to upset the circuit court's decision to bind over the defendants.

See earlier post on grant of review.

'Richards v. Badger Mutual Insurance' 2008 WI 52

The Wisconsin Supreme Court today issued its decision in this case (2005AP2796), affirming the Court of Appeals, 2006 WI App 255, 297 Wis. 2d 699, 727 N.W.2d 69.
Opinion by Justice Roggensack, with Justices Crooks, Prosser, and Ziegler

¶2 We conclude as follows: (1) Wis. Stat. § 895.045(2) is the legislative codification of the concerted action theory of liability; (2) the damages in this case resulted from the consumption of beer to the point of intoxication and the subsequent decision to drive while intoxicated; and (3) although Robert Zimmerlee, David Schrimpf, and Tomakia Pratchet acted "in accordance with a common scheme or plan" to procure beer, they did not so act in consuming beer to the point of intoxication and in the subsequent act of driving while intoxicated, and, therefore, David Schrimpf is not jointly and severally liable under § 895.045(2) for the death of Chris Richards. Accordingly, [Schrimpf's insurer] Badger Mutual Insurance Company is relieved from making any further payment to Michelle Richards.

Dissent by Chief Justice Abrahamson, with Justices Bradley and Butler

¶63 The majority opinion errs, as Judge Fine stated [below], in concluding that the question whether a common scheme or plan has resulted in damages for purposes of joint and several liability under Wis. Stat. § 895.045(2) is different from the question whether a common scheme or plan has resulted in damages for purposes of tort liability to the plaintiff. In other words, the majority opinion has concluded that Wis. Stat. § 895.045(2) changes the Wisconsin law on causation.[20] Nothing in the text of Wis. Stat. § 895.045(2) states that the legislature is altering or modifying the substantial factor test of causation, as the majority opinions opine.

¶64 The end! No more need be said.

...

¶84 For the reasons set forth, I dissent.

Torts: Joint and Several Liability - Concerted Activities, Supreme Court Digest, by Prof. Daniel D. Blinka and Prof. Thomas J. Hammer, Wisconsin Lawyer, July 2008


Alcohol provider is not liable for all injuries, by David Ziemer, Wisconsin Law Journal, June 5, 2008


Supreme Court rules on drunk driving case, by Marie Rohde, Proof and Hearsay


Thoughts on 'Richards' by Christian Schneider at Wisconsin Policy Research Institute

Rule barring judges from joining parties remains in place

Scott Bauer of the Associated Press reports on Milwaukee County Circuit Judge John Siefert's case challenging the constitutionality of state rules prohibiting judges from joining political parties or endorsing candidates in partisan elections. Judge Barbara Crabb of the U.S. District Court for the Western District of Wisconsin has denied relief pending next year's scheduled trial. If the rule was invalidated, Judge Siefert would join the Democratic Party.

Siefert hired James Bopp, a high-profile Republican attorney, to argue his case. Bopp is a former adviser to then-Republican presidential candidate Mitt Romney and a member of the Republican National Committee. He argued that the rule should be suspended because Siefert is campaigning and needs to seek donations.

The state, in defense, argued that getting rid of the rule would hurt the court's appearance of impartiality and lead to more judges having to not hear cases because of potential conflicts.

Mr. Bopp was a member of the panel at our chapter's March 11, 2007 event.

(via WisPolitics)


Update: Why Siefert wants to be a Democrat, by Marie Rohde, Proof and Hearsay, Tuesday, June 3, 2008

Insurer must pay for boy's treatment

Marie Rohde in the Milwaukee Journal Sentinel, June 2, 2008 on the Wisconsin Supreme Court's decision in Summers v. Touchpoint Health Plan, Inc., 2008 WI 45

(see this earlier post)

UPL Petition held in abeyance

On May 29, 2008 the Wisconsin Supreme Court entered an order [html | pdf], at our State Bar's request, to hold in abeyance the pending rules matter on the unauthorized practice of law. The request was made "in order to permit the State Bar to carefully evaluate the various proposals submitted regarding this matter." 'In the matter of the Definition of the Practice of Law and the Administration of a Rule Defining the Practice of Law' (07-09)

(see this previous post on the April 24, 2008 open administrative conference, and this earlier post on the March 14, 2008 hearing)

Court of Appeals opinions ordered published May 28, 2008

2008 WI App 65 through 2008 WI App 82

June Arguments

The Wisconsin Court of Appeals has scheduled oral argument in the following.

June 3, 2008 9:30 a.m. Ozaukee County v. Labor Association of Wisconsin (2007AP1615) at Dist. II, 2727 North Grandview Blvd., Waukesha

June 9, 2008 10:00 a.m. David L. Sisson v. Hansen Storage Company (2007AP1426) at Dist. I, 633 W. Wisconsin Ave., #1400, Milwaukee

June 16, 2008 10:00 a.m. Robert Szalacinski v. Christopher A. Campbell (2007AP667) at Dist. I, 633 W. Wisconsin Ave., #1400, Milwaukee

June 17, 2008
9:30 a.m. State v. Kenneth W. Lippold (2007AP1773-CR) at Dist. I, 633 W. Wisconsin Ave., #1400, Milwaukee
10:30 a.m. Toldt Woods Condominiums Owner's Assoc. v. Madeline Square, LLC (2007AP1763) at Dist. II, 2727 North Grandview Blvd., Waukesha

June 18, 2008 9:30 a.m. Racine Harley Davidson v. Harley-Davidson Motor (2007AP1727) at District II, 2727 North Grandview Blvd., Waukesha

This Week in Liberal Judicial Activism: Week of June 2, 2008

Ed Whelan at Bench Memos.

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

Interview with Benjamin Netanyahu at TCS

"Government intervention is like a heavy boot on a coiled spring. When you remove it, that spring expands for some time. And this opportunity now faces all the advanced economies, especially those that still have great constraints on competition."

'Challenging Authority'

Review by Edgey Wildchild of Challenging Authority (2006), by Frances Fox Piven, Z Magazine, April 2, 2008

An advantage to working class people in advanced societies is that they wield considerable power, sometimes more—a lot more—than they think they do. The leverage they have can be activated "by the withdrawal of contributions to social cooperation." This activation is defined by Piven as disruption. It is this force that makes social movements significant.