'Donohoo v. Action Wisconsin' 2008 WI 110

Denial of Motion to Vacate Decision Relating to the Disqualification of Justice (2006AP396 July 30, 2008) [html | pdf]
Per curiam unanimous decision
Concurrence by Justice Prosser

¶62 It is entirely reasonable to have a dispassionate discussion on the role of public funding in judicial campaigns. But people who care about the judiciary must also look long and hard at why supreme court elections have become so contentious and expensive.

¶63 A court that is in the vanguard of making and changing law in a way that greatly benefits some interest groups and seriously damages others is a court that is actively, if inadvertently, promoting the politicization of its own elections. Every litigant believes he is entitled to an impartial review of his case. If litigants do not believe they can get an impartial review of their cases, they will inevitably attempt to change the composition of the court.

Justice Butler did not participate


Appeals: Judicial Disqualification - Donations, Supreme Court Digest, by Professors Daniel D. Blinka and Thomas J. Hammer, Wisconsin Lawyer, September 2008


Lawyer in gay rights lawsuit loses again, Associated Press in Gannett Wisconsin Newspapers
(via WisPolitics)


Some wisdom from Justice David Prosser, by Rick Esenberg at Shark and Shepherd


Supreme Court rules lawyer must pay fees in defamation case: James Donohoo represented a Louisiana preacher in the case against a gay rights group, by Marie Rohde, Milwaukee Journal Sentinel, August 3, 2008


Butler cleared of conflict, by Marie Rohde, Proof and Hearsay


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

Court: Butler had no duty to recuse self from case

David Ziemer in the Wisconsin Law Journal, July 31, 2008

In a unanimous per curiam opinion, the court [yesterday] held that Justice Louis B. Butler, Jr., had no duty to recuse himself from a case involving a group that supports lesbian, gay, bisexual and transgender (LGBT) rights.

Attorney James R. Donohoo filed a motion seeking vacation of a recent opinion, based on Butler’s receiving campaign contributions from the opposing attorney in the case, and Butler’s appearance at a fundraiser for an LGBT PAC.

On Mr. Donhoo's motion, see this earlier post. The court's decision on the merits is linked at this earlier post. The League of Women Voters petition for a revised recusal rule is linked at this earlier post.

State Bar lauds legislators for their work on a sound and just state legal system

Our State Bar's Inside the Bar newsletter August 2008 reports on our State Bar's Legislative Oversight Committee's June 27, 2008 Scales of Justice Award recipients.

Sen. Mike Ellis (R-Neenah) and Sen. Jon Erpenbach (D-Middleton) for their work on campaign finance reform, Rep. Pedro Colon (D-Milwaukee) for his work on notarios legislation, and Rep. John Townsend (R-Fond du Lac) for his work on guardianship statutes.

Our State Bar posts its positions on state legislation.

Board discusses Attorney General's request to support 'Siefert', among other actions

Our State Bar's Inside the Bar newsletter August 2008 reports further on the June 27, 2008 Board of Governors meeting.

By "support Siefert" is meant oppose Siefert. (see this earlier post)

In "Appointments/elections"

The board elected the following to serve on the FY 09 Executive Committee: Carmen Ortiz-Babilonia, Milwaukee; Thomas W. Bertz, Stevens Point; Margaret Wrenn Hickey, Milwaukee; Eugene A. Gasiorkiewicz, Racine; Kevin Palmersheim, Middleton; and Mark Pennow, Green Bay.

The president, president-elect, past president, chair of the board, and one representative each from the Nonresident, Government, Young, and Senior Lawyers divisions also serve on the committee.

Board supports petition creating commission to improve access to legal services for the poor

Our State Bar's Inside the Bar newsletter August 2008 reports on the June 27, 2008 Board of Governors meeting.

At its June 27 meeting, the Board of Governors voted unanimously to support a State Bar petition to the Wisconsin Supreme Court asking the court to establish a Wisconsin Access to Justice Commission.

The Petition was filed July 7, 2008. (see this earlier post)

Supreme Court decisions July 31, 2008

Disciplinary matters only

Videoconferencing rule order corrected 2008 WI 111

The Wisconsin Supreme Court yesterday entered an order [html | pdf] to correct a typographical error in Wis. Stat. Rule 885.54(1)(e) in its May 1, 2008 order. (see this earlier post)

In the matter of corrections to Supreme Court Order 07-12 creating ch. 885 of the statutes, governing the use of videoconferencing in the courts (08-21)

In the matter of the petition to create a rule governing the use of videoconferencing in the courts (07-12)

"Obvious"

Eugene Volokh at The Volokh Conspiracy, quoting Powell, J., in Georgia, F. & A. Ry. Co. v. Sasser, 61 S.E. 505 (Ga. App. 1908)

“Obvious” is a pretty strong sounding word. Its chief juridic employment, so far as my observation goes, is by judges of courts of review, who generally pronounce obvious those propositions (evolved, perhaps, with many concealed misgivings) which they are able to support with but sparse array of precedent and which they are unwilling to put forth as an original dictum without the supporting influence of some strong, impressive, faith-bearing word; for a proposition weak in substance is oft aided in appearance by the strength of sonancy, and “obvious” is a sonant word.

Hearing on CLE late fees and reinstatement November 10, 2008

The Wisconsin Supreme Court today entered an order [html | pdf]

that a public hearing on these petitions, as amended, shall be held in the Supreme Court Room in the State Capitol, Madison, Wisconsin, on Monday, November 10, 2008, at 9:45 a.m.

(see this earlier post on the Petitions in 08-05 and 08-06)


In the matter of the petition to amend Supreme Court Rules SCRs 31.10 and 31.11, relating to notices of noncompliance with continuing legal education (CLE) requirements and reinstatement (08-05)

In the matter of the petition to amend Supreme Court Rule SCR 31.13(2), relating to the manner of filing documents relating to continuing legal education (CLE) requirements (08-06)

In the matter of the petition to amend Supreme Court Rules SCRs 40.14(2) and 40.14(3)(h), relating to the filing of applications for admission and the fee for late application under the diploma privilege (08-14)

Hearing on appellate e-filing October 28, 2008

The Wisconsin Supreme Court today entered an order [html | pdf]

that a public hearing on these petitions shall be held in the Supreme Court Room in the State Capitol, Madison, Wisconsin, on Tuesday, October 28, 2008, at 9:30 a.m.

(See this earlier post on the Petition in 08-15 and this earlier post on the Petition in 08-18)


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 Appellate Briefs and No-Merit Reports (08-15)

In re Amendments to Wis. Stat. Rule 809.62 and Wis. Stat. Rule 809.80 relating to the Electronic Filing of Petitions for Review and Responses (08-18)

Court conference on UPL October 28, 2008

The Wisconsin Supreme Court today entered an order [html | pdf]

that on Tuesday, October 28, 2008, at 9:30 a.m., at its open administrative conference in the Supreme Court Room in the State Capitol, Madison, Wisconsin, the court shall discuss this matter. As this petition has already been the subject of a public hearing, general public testimony will not be entertained at the open conference. The court may, in its discretion, direct questions to individuals present at the conference to aid the court's consideration of this matter.

(See this earlier post)


In the Matter of the Definition of the Practice of Law and the Administration of a Rule Defining the Practice of Law (07-09)

Rules amended on MJP, pro hac vice 2008 WI 109

The Wisconsin Supreme Court today entered an order [html | pdf] ("pertaining to the temporary practice of law by lawyers not licensed to practice in the state of Wisconsin as well as changes to the rules governing admission pro hac vice") repealing and recreating Supreme Court Rule 10.03 (4), Rule 20:5.5 Unauthorized practice of law; multijurisdictional practice of law, and Rule 20:8.5 Disciplinary authority; choice of law, effective January 1, 2009


(see this earlier post)


Hearing audio April 12, 2007


Petition filed November 20, 2006 by Thomas J. Basting Sr., Esq., President-elect, State Bar of Wisconsin


In the matter of Petition of the State Bar of Wisconsin to Amend Chapter 20 of the Supreme Court Rules (06-06)

'Amendments to Wis. Stat. ss. 809.30, 809.32 and 809.62' 2008 WI 108

The Wisconsin Supreme Court today entered an order [html | pdf] amending the rules of appellate procedure effective January 1, 2009.


Hearing audio, March 15, 2005


Petition filed September 30, 2004 by James C. Alexander on behalf of the Judicial Council.

In 1999, the Supreme Court asked the Appellate Practice Section of the State Bar of Wisconsin and the Judicial Council Appellate Procedure Committee to advise whether changes to the rules were necessary to clarify what must be contained in a petition for review and a petition for cross-review to preserve issues for review in the wake of State v. Scheidell, 227 Wis. 2d 285, 595 N.W.2d 661 (1999) (respondent cannot argue issue raised below unless the issue was raised in a petition for cross-review) and, if so, what those changes might be. The court observed that “questions continue to arise concerning whether a respondent must raise an issue by cross-petition to preserve it or may raise it in a brief.”

In re: Proposed Amendments to Wis. Stat. ss. 809.30, 809.32 and 809.62 (04-08)

Supreme Court decision July 30, 2008

Disciplinary matter only

Wisconsin's Public-Records Law:

Wisconsin's Public-Records Law: Preserving the Presumption of Complete Public Access in the Age of Electronic Records, Comment by Leanne Holcomb and James Isaac, 2008 Wis. L. Rev. 515

Roland Day, former state Supreme Court chief, dies

Sandy Cullen reports in the Wisconsin State Journal

"He had a great sense of humor," said Chief Justice Shirley Abrahamson, who succeeded Day as chief justice when he retired in 1996, a year after assuming the court's leadership.

"When he became the chief, he said, I'm going to be chief for a year. You're going to be chief for a long time.'"

Update: the Supreme Court's press release

(both via The Wheeler Report)


Justice Day put a lid on lawyer donations, by John Nichols, The Capital Times
(via WisPolitics)


Justice Day prevailed on one man, one vote, by John Nichols, The Capital Times
(via WisPolitics)


CJ Day Endorses CJ A. from the morgue? by Daniel Suhr at The Triumvirate

Challengers could be biding time for Supreme Court race

Jack Zemlicka's report in today's Wisconsin Law Journal includes comment by University of Wisconsin Political Science Professor John Coleman.

He points out that three recent Supreme Court candidates — Clifford, Ziegler and Gableman — have been virtual unknowns and the other, Butler, had already lost one bid for the bench.

“So it is quite possible that people are looking in all the wrong places and the next candidate will, again, be a surprise,” said Coleman. “And if I’m a well-known person, do I want to get into a fight with the chief justice and most of the Wisconsin political establishment that is desperate to save that seat?”

Richard Epstein

Unfortunately, I will be unable to attend this event next month in Chicago.
However, I can attest that, if you have never heard Prof. Epstein in person, it is something every attorney should do at some point. There's no one quite like him. And its free!

Diversity jurisdiction

Representing an insurer on a duty to defend issue?
Get thee to federal court if possible. The interpretation of Wisconsin insurance law would not be recognizable to anyone accustomed to state courts.


Update: Opinion --TRB

Development groups weigh impact of verdict

Dan Benson in today's Milwaukee Journal Sentinel on State v. Beaver Dam Area Development Corporation, 2008 WI 90 (see this earlier post)

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

Ed Whelan at Bench Memos.

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

O’Malley and Kuhn Enter Hall, Forever Linked by Bold Moves

Richard Sandomir reports in today's New York Times on the induction of Walter O'Malley and Bowie Kuhn into the the Baseball Hall of Fame.

Kuhn came to prominence when he defended Major League Baseball in an antitrust suit filed by the State of Wisconsin to prevent the Braves’ move to Atlanta.

Judge Elmer Roller had ruled against the National League, see Cold Wind from Wisconsin, Time, April 22, 1966. His decision was reversed on appeal, State v. Milwaukee Braves, 31 Wis. 2d 699, 144 N.W.2d 1 (1966).

Wisconsin appellate case digests

Supreme Court Digest and Court of Appeals Digest, by Prof. Daniel D. Blinka and Prof. Thomas J. Hammer, Wisconsin Lawyer, July 2008

Court of Appeals opinions week of July 21, 2008

(linked from post title)


Including
Cholvin v. Wisconsin Department of Health and Family Services (2007AP1350 July 24, 2008)
Court strikes down tighter Medicaid standards, Greater Milwaukee Today, July 25, 2008
(via WisPolitics)


Including
Cedarburg Education Association v. Cedarburg Board of Education (2007AP852 July 23, 2008)
Court upholds teacher’s termination for viewing pornography, by David Ziemer, Wisconsin Law Journal, July 24, 2008
Court upholds teacher’s firing for viewing pornography: Robert Zellner taught in Cedarburg, by Tom Kertscher, Milwaukee Journal Sentinel, July 24, 2008
Zellner attorney unsure on appeal, by Tom Kertscher at NewsWatch
Porn-Peeper Teacher Still Fired, by Dad29
Court upholds firing of Cedarburg teacher, by Tom Kertscher at NewsWatch
Zellner wants case sent back to appeals court, by Tom Zellner, Milwaukee Journal Sentinel, May 3, 2008
Teacher fired for viewing pornography sues district, by Tom Kertscher, Milwaukee Journal Sentinel, April 17, 2008
Supreme Court gets Zellner case — again: Arbitration dispute could affect many other workers, by Tom Kertscher, Milwaukee Journal Sentinel, April 3, 2008
(April 2, 2008 post on certification)
(May 15, 2007 post on the previous Supreme Court decision)


Including
State v. King (2007AP1420-CR July 22, 2008)
Drug conviction thrown out on constitutional grounds: Search warrant used by police overstepped bounds, by Marie Rohde, Milwaukee Journal Sentinel, July 23, 2008


Including
State v. Yang (2007AP1190 July 22, 2008)
Murder conviction upheld, by Marie Rohde at Proof and Hearsay


Including
State v. Lippold (2007AP1773-CR July 22, 2008)
County where goods stolen was proper venue: Court upholds conviction for receiving stolen property, by David Ziemer, Wisconsin Law Journal, July 25, 2008
Conviction upheld, by Marie Rohde at Proof and Hearsay


Wisconsin Law Journal current case digests

'In the matter of the Creation of a Court Rule Governing Electronic Filing in the Circuit Courts' 2008 WI 106

The Wisconsin Supreme Court today entered a corrected order [html | pdf] in this matter. (May 1, 2008 order linked at this earlier post)

'In the matter of Proposed Amendment to Wis. Stat. § 887.26' 2008 WI 105

The Wisconsin Supreme Court today entered this corrected order [html | pdf] effective July 1, 2008. In the matter of Proposed Amendment to Wis. Stat. § 887.26 (05-06)


Amended Petition filed January 26, 2006 by James C. Alexander.


November 14, 2005 hearing audio.


Petition filed June 15, 2005 by James C. Alexander on behalf of the Judicial Council, regarding requirements for depositions conducted outside the Wisconsin. (See current Wis. Stat. § 887.26.)

'Amendment of Wis. Stat. Ch. 756, Juries' 2008 WI 104

The Wisconsin Supreme Court today entered a corrected order [html | pdf] effective January 1, 2009, In the matter of the Amendment of Rules of Pleading, Practice and Procedure: Wis. Stat. Ch. 756, Juries (08-01)


Hearing audio, April 7, 2008


Petition filed by A. John Voelker, Director of State Courts, January 3, 2008

Venue for receiving stolen property

Court of appeals upholds venue in county where property was originally stolen.

Revolver to commemorate D.C. v. Heller

I wonder if it will be easy to carry concealed.

update: Oh yeah. This weapon provides the perfect means to exercise the constitutional right to carry a concealed weapon.

Viewing porn is "immoral"

Not only that, but somehow it endangers the welfare of children who aren't even present.

Pressure to File

Jack Zemlicka in the Wisconsin Law Journal, July 15, 2008, In the matter of the Petition for Amendment to Supreme Court Rules (SCR) 31.01, 31.03, 31.05, and 31.07, Relating to Procedures for Reporting Continuing Legal Education (CLE) Credits (08-04) (see this earlier post)

Report: Wisconsin property taxes among highest

From the Associated Press

The report [from the Wisconsin Taxpayers Alliance] says Wisconsin has been in the top 10 for 22 of the past 47 years, despite attempts at relief.

(via WisPolitics)


Attempts at relief go back more than 47 years, as Joseph A. Ranney recounts in How the income tax came to Wisconsin.

The Legislature passed the [income tax] law in 1911. A test case was quickly brought before the Supreme Court to make sure the law was constitutional, and in 1912 the court said it was [Income Tax Cases, 148 Wis. 456, 134 N.W. 673]. For a time, many reformers hoped the income tax would completely replace the property tax, but the property tax proved more durable than expected.

Riparian rights can't be reserved

Badly written statutes rarely lead to good case law.

Fannie Mae's Thugs

Jim Lindgren at The Volokh Conspiracy

AG cites Wikipedia in 'Siefert v. Alexander'

Our State Bar posted that Member input sought in judicial free speech case [Siefert v. Alexander, Case No. 08-CV-126-C (W.D. Wis.)].

In this case, Judge John Siefert of Milwaukee has challenged the constitutionality of three provisions of the Wisconsin Code of Judicial Conduct as an infringement on his right to free speech.

Among the selected documents posted is the May 15, 2008 Department of Justice Brief in Opposition to Plaintiff's Motion for Preliminary Injunction, which states on pp. 12-13.

Even White I’s [Republican Party of Minnesota v. White, 536 U.S. 765 (2002)] scope has been questioned by a member of its own narrow majority. Retired Justice Sandra Day O’Connor has suggested that she would have voted the other way had she known the implications the decision would have had on judicial independence. See http://en.wikipedia.org/wiki/Republican_Party_of_Minnesota_v._White, and Paul Greenberg, Justice Sandra Day O’Connor regrets her 2002 vote allowing judges expression of their political views in Minnesota v. White, http://news.lawreader.com/?p=451. [footnote omitted]

Group: State Supreme Court race was most expensive

Today's LaCrosse Tribune reports.

The group [Wisconsin Democracy Campaign] said the two candidates spent $1.2 million in the race, but outside groups spent about $4.8 million.

That's slightly more than the $5.8 million spent on the 2007 race in which Justice Annette Ziegler was elected.

(via WisPolitics)

In Chambers: Burnie Bridge, Judge, District IV Court of Appeals

Nicholas C. Zales interviews Judge Bridge in the July 2008 issue of De Novo, newsletter of our State Bar's Appellate Practice Section.

How can attorneys write better briefs?

“I feel that appellate writing is in many respects much like any other kind of effective legal writing. You think about your audience and try and make your point as directly and persuasively as possible. But for some reason, it often happens that lawyers feel the need to add as many arguments as they can possibly think of. Lengthy, overly detailed briefs usually aren’t helpful. In contrast, just telling a story as directly as possible is very effective. Confronting difficult arguments directly is also extremely effective. Too often attorneys attempt to obscure the ‘hard’ facts or law and go off and talk about other things. That does not help the judges when we have to rule on that difficult issue. For me, effective written advocacy is simply a matter of common sense and the ability to stay your hand and not pile on argument after argument.”

Thurgood Marshall's Bill of Rights for Kenya

Mary L. Dudziak, 11 Green Bag 2d, 307

Marshall drew upon available texts when he wrote a bill of rights for Kenya [in 1960], but curiously, the U.S. constitution was not one of them. (p. 309)

Who’s Afraid of Friedrich Hayek?

"Who’s Afraid of Friedrich Hayek? The Obvious Truths and Mystical Fallacies of a Hero of the Right", by Jesse Larner, Dissent, Winter 2008

One of the unexpected things in Road is that he writes with passion against class privilege.

Less unexpected, perhaps, if one keeps in mind that the full title is The Road to Serfdom.

(via Arts & Letters Daily)

Local cops praise a decision by the Court to allow drug dog sniffs of vehicles.

Wausau television WSAW staff reports on State v. Arias, 2008 WI 84 (see this earlier post)

State Supreme Court Chief gets an earful in Superior meeting Monday

At Business North

People are concerned about the fate of drug offenders in northern Wisconsin. They made their feelings known to the top judge in the state at a meeting in Superior Monday. Amy Swanoski reports,

"You wait three years to go through a five step detox program or an AA treatment it’s not long enough.”

“If we could at least train a portion of the prisoners to get decent jobs good paying jobs these would be people who we know would now would not have to support and would become good citizens and become tax payers.”

Planned bill targets Supreme Court decision on suits by homebuyers

Mark Pitsch in the Wisconsin State Journal on Below v. Norton, 2008 WI 77 (see this earlier post)

(via WisPolitics)

Marital property agreement concerns remain

Gregg Herman in the Wisconsin Law Journal, July 21, 2008, on Steinmann v. Steinmann, 2008 WI 43 (see this earlier post)

U.S. Is Alone in Rejecting All Evidence if Police Err

Adam Liptak in last Saturday's New York Times on the "exclusionary rule".

(via Orin Kerr at The Volokh Conspiracy)

High court stands up for government openness

Tom Giffey for the Eau Claire Leader-Telegram on Sands v. Whitnall School District, 2008 WI 89 (see this earlier post) and State v. Beaver Dam Area Development Corporation, 2008 WI 90 (see this earlier post)

(via The Wheeler Report)

Ruling defines tax status of modified software

Jack Zemlicka in the Wisconsin Law Journal, July 21, 2008, on Wisconsin Department of Revenue v. Menasha Corporation, 2008 WI 88 (see this earlier post)

Court finds no privilege for closed meetings

David Ziemer in Wisconsin Law Journal, July 21, 2008, on Sands v. Whitnall School District, 2008 WI 89 (see this earlier post)

Some Legal Activists Have Hearts Set on 'True Liberal'

Patrick McIlheran observed there's No one here but us Scalias. Robert Barnes and Kevin Merida, with Alice Crites and Madonna Lebling, reported in yesterday's Washington Post

It could be seen as the sincerest form of flattery: Ask some activists on the left the kind of Supreme Court justice they would like to see a President Obama appoint, and the name you hear most is the same justice they most often denounce. They want their own Antonin Scalia.

...

"Someone with vision," said Doug Kendall, who recently helped found a new liberal think tank called the Constitutional Accountability Center. "Someone who looks hard at the text and history of the Constitution, as Justice Scalia does, and articulates a very clear idea of how that text points to liberal and progressive outcomes."

...


Cass R. Sunstein, an informal Obama adviser now at Harvard Law School, last year instigated the debate by lamenting the "absence of anything like a heroic vision on the court's left" to counteract Scalia and Justice Clarence Thomas.

...

Christopher L. Eisgruber, provost at Princeton University and author of a book about Supreme Court nominations titled "The Next Justice," said liberal activists seemed split between "breaking the mold a little between liberals and conservatives" and putting "somebody in the opposite corner in the boxing ring with Antonin Scalia."

(via Matthew J. Franck at Bench Memos)


Justice Scalia was the keynote speaker at our chapter's February 23, 2006 event on "The Legacy of the Rehnquist Court".

Wisconsin must examine tax fairness

State Senator Kathleen Vinehout (D-Alma) in the Tomah Journal, July 17, 2008, on Wisconsin Department of Revenue v. Menasha Corporation, 2008 WI 88 (see this earlier post)

(via WisOpinion)

Supreme Court to Consider Rule on Citing Unpublished Opinions

Beth Ermatinger Hanan reports at WisBar

On Oct. 14, 2008, the Wisconsin Supreme Court will consider a fourth request to permit citation of unpublished Wisconsin appellate opinions as persuasive authority. ...

(see this earlier post)

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

Ed Whelan at Bench Memos.

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

Conservative Thinkers Think Again

Patricia Cohen in today's New York Times

A.E.I. [American Enterprise Institute], like so many other bastions of the intellectual right, has returned to the kitchen to whip up a fresh menu of possibilities for disaffected conservatives looking for solutions to emerging problems like energy, the environment and immigration, as well as a way to comfortably fit these new ideas into a conservative ideological framework.

Merit Selection Is a Demerit on a Free Society

Letter from Don Schultz of Madison to the editor of our State Bar's Wisconsin Lawyer magazine, published in the July 2008 issue, in response to Tom Basting's May 2008 President's column.

Potential turbulence

The Economist, Jun 26, 2008, reviews Fishing in Utopia: Sweden and the Future that Disappeared, by Andrew Brown.

Once home to a system that seems to modern eyes as distant as communism, it is now a more-or-less normal capitalist country, troubled by the task of integrating the tenth of the population that consists of unhappy and often unseen immigrants.

State rules trump local rules

No one in their right mind would use Rule 802.08 to govern their summary judgment motions in an actual case. Nevertheless, the Rule voids any local county rules that set workable timelines.

[on Hefty v. Strickhouser, 2008 WI 96 (see this earlier post) --TRB]

Walgreens chain sues city of Eau Claire

Christena T. O'Brien in the Eau Claire Leader-Telegram staff

Eight days after the release of a state Supreme Court decision that the city of Madison had been charging two Walgreens stores too much in property taxes [see this earlier post], the drugstore giant made a similar claim against the city of Eau Claire.

(via WisPolitics)

Wisconsin Supreme Court decisions July 18, 2008

Disciplinary matter only

Why didn't the Catholic Church in Wisconsin have to warn about pedophiles?

Kevin Fischer at This Just In on Hornback v. Archdiocese of Milwaukee, 2008 WI 98 (see this earlier post)

(via WisOpinion)

Court of Appeals opinions week of July 14, 2008

(linked from post title)


including
Berkos v. Shipwreck Bay Condominium Association (2006AP2747 July 17, 2008)
Water rights can’t be reserved: Court: Both sale and reservation of rights banned, by David Ziemer, Wisconsin Law Journal, July 23, 2008


including
Meriter Health Services v. Travelers Casualty and Surety Co. (2007AP1983 July 17, 2008)
Hospital embezzlement not covered by insurance, Marie Rohde at Proof and Hearsay


including
State v. Mellum (2007AP2828-CR July 17, 2008)
Another decision on frisking, Marie Rohde at Proof and Hearsay


including State v. Bell (2007AP2023-CR July 15, 2008)
Drug conviction reversed, by Marie Rohde at Proof and Hearsay


Wisconsin Law Journal current case digests

'Amendment of Wis. Stat. Ch. 756, Juries' 2008 WI 102

The Wisconsin Supreme Court today entered an order [html | pdf] effective January 1, 2009, In the matter of the Amendment of Rules of Pleading, Practice and Procedure: Wis. Stat. Ch. 756, Juries (08-01)


Hearing audio, April 7, 2008


Petition filed by A. John Voelker, Director of State Courts, January 3, 2008

The people can handle the truth

Editorial in the Beloit Daily News on State v. Beaver Dam Area Development Corporation, 2008 WI 90 (see this earlier post) and Sands v. Whitnall School District, 2008 WI 89 (see this earlier post)

(via The Wheeler Report)

Reform the system

Editorial in today's Milwaukee Journal Sentinel on Wisconsin Department of Revenue v. Menasha Corporation, 2008 WI 88 (see this earlier post)

Wisconsin Supreme Court decisions July 17, 2008

Disciplinary matters only.

Dismissal of lawsuit against two Catholic dioceses upheld

Marie Rohde reports in today's Milwaukee Journal Sentinel on Hornback v. Archdiocese of Milwaukee, 2008 WI 98 (see the earlier post)

One Blueprint For Obama

John O. Mcginnis in the Wall Street Journal, July 15, 2008, with a review.

In Enhancing Government, Erwin Chemerinsky provides a kind of holograph of what federalism -- as the federal-state relation is confusingly called -- would resemble if the U.S. were to enter a period of liberal ascendancy. His timing could not be better, since the chance of such an ascendancy is not exactly remote: A Barack Obama presidency seems possible, together with a Democratic majority in both houses of Congress. Mr. Chemerinsky sketches a vision of federalism that would empower government at all levels and delight civil plaintiffs and criminal defense lawyers of every description. The great virtue of Mr. Chemerinsky's book is that it serves as a blueprint for the Obama administration and a fair warning to its opponents.

(via Althouse)

Blogging Hornback

Rick Esenberg at Shark and Shepherd on Hornback v. Archdiocese of Milwaukee 2008 WI 98, (see this earlier post)

Certification does not violate Confrontation Clause

David Ziemer in the Wisconsin Law Journal, July 16, 2008, on State v. Doss, 2008 WI 93 (See this earlier post)

Who's "swiftboating" the state Supreme Court?

Rick Esenberg at Shark and Shepherd on Wisconsin Department of Revenue v. Menasha Corporation, 2008 WI 88 (see this earlier post)

Begging For Corruption

Christian Schneider at Wisconsin Policy Research Institute on Wisconsin Department of Revenue v. Menasha Corporation, 2008 WI 88 (see this earlier post)

'J. G. v. Wangard' 2008 WI 99

The Wisconsin Supreme Court today issued its decision in this case (2006AP818) affirming the Court of Appeals [Summary Disposition].
Decision by Justice Prosser, with Justices Crooks, Roggensack, and Ziegler
Dissent by Justice Bradley, with Chief Justice Abrahamson and Justice Butler
Dissent by Justice Butler, with Chief Justice Abrahamson and Justice Bradley


Insurance: Homeowners - Intentional Acts, Supreme Court Digest, by Professors Daniel D. Blinka and Thomas J. Hammer, Wisconsin Lawyer, September 2008


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


Argument audio, March 13, 2008


(See earlier post on grant of review)

'Hornback v. Archdiocese of Milwaukee' 2008 WI 98

The Wisconsin Supreme Court today issued its decision in this case (2006AP291) affirming the Court of Appeals [unpublished opinion].
Opinion by Justice Butler

¶63 This court is equally divided on whether to affirm or reverse the decision of the court of appeals dismissing the plaintiffs' complaint against the Archdiocese of Milwaukee. ["¶5 ... Justice N. Patrick Crooks, Justice Patience D. Roggensack, and Justice Annette Kingsland Ziegler would affirm; Chief Justice Shirley S. Abrahamson, Justice Ann Walsh Bradley, and Justice Louis B. Butler would reverse."] Consequently, we affirm the court of appeals' decision to affirm the circuit court's dismissal of the plaintiffs' claims against the Archdiocese of Milwaukee, without further analysis of that issue.

¶64 We further conclude that the plaintiffs have not alleged an actionable claim for negligence against the Diocese of Madison under which relief could be granted under Wisconsin negligence law. The type of failure to warn claim recognized under Wisconsin law does not extend as far as the plaintiffs argue. We finally conclude that even if a viable negligence claim had been made, recovery against the Diocese would be precluded on the public policy ground that allowing recovery would send this court down a slippery slope with no sensible or just stopping point.

Justice Prosser did not participate.


Torts: Negligence - Negligent Failure to Warn -Former Employee's Sexual Misconduct, Supreme Court Digest, by Professors Daniel D. Blinka and Thomas J. Hammer, Wisconsin Lawyer, September 2008


Why didn't the Catholic Church in Wisconsin have to warn about pedophiles? I've got the answers, by Kevin Fischer at This Just In
(via WisOpinion)


Dismissal of lawsuit against two Catholic dioceses upheld, by Marie Rohde, Milwaukee Journal Sentinel, July 17, 2008


Blogging Hornback, by Rick Esenberg at Shark and Shepherd


Supreme Court justice recuses himself in church sex abuse cases by Pat Schneider, The Capital Times
(via WisPolitics)


Argument audio, March 13, 2008


WI Supreme Court Could End 1st Amendment Shield for Clergy Pedophiles, SNAP, the Survivors Network of those Abused by Priests, press release, at The Wheeler Report


(See earlier post on grant of review)

'Rechsteiner v. Hazelden' 2008 WI 97

The Wisconsin Supreme Court today issued its decision in this case (2006AP1521) affirming the Court of Appeals, 2007 WI App 148, 303 Wis. 2d 656, 736 N.W.2d 219.
Opinion by Justice Prosser for a unanimous court
Justice Butler did not participate


Torts: Malpractice - Peer Review - Immunity , Supreme Court Digest, by Professors Daniel D. Blinka and Thomas J. Hammer, Wisconsin Lawyer, September 2008


(see earlier post on grant of review)

Electronic filing of Petitions for Review and Responses proposed

On Monday, David R. Schanker, Clerk of the Supreme Court, filed a Petition

to amend WIS. STAT. RULE 809.62(4) and the proposed WIS. STAT. RULE 809.80(5), the creation of which was requested by the Court of Appeals in its petition filed June 19, 2008. ...

(see this earlier post)

by requiring appellate counsel to file an electronic copy of the Petition for Review and the Response to Petition for Review.

In re Proposed Amendments to Wis. Stat. Rule 809.62 and Wis. Stat. Rule 809.80 relating to the Electronic Filing of Petitions for Review and responses (08-18)

Supreme Court upholds estate theft conviction

Also in Regional News Briefs in the Milwaukee Journal Sentinel, July 16, 2008, on State v. Doss, 2008 WI 93 (See this earlier post)

Search at traffic stop OK, high court says

In Regional News Briefs in the Milwaukee Journal Sentinel, July 16, 2008, on State v. Sumner, 2008 WI 94 (see this earlier post)

White House nominates Timothy Dugan for U.S. district judge

Marie Rohde reports in today's Milwaukee Journal Sentinel that President Bush has nominated Milwaukee County Circuit Judge Timothy Dugan to the United States District Court for the Eastern District of Wisconsin. That position will be open with the retirement of Judge Rudolph Randa.

but it’s late in Bush’s term and the likelihood of the nomination being approved by the Senate is questionable. However, a Kohl spokeswoman noted that Dugan’s name was on the list of candidates acceptable to both Feingold and Kohl. [Sen. Herb Kohl (D-WI) and Sen. Russ Feingold (D-WI)]

Dugan, considered a moderate conservative, was appointed to the Circuit Court in 1992 by then-Gov. Tommy Thompson.

According the the article, Judge Dugan is not now and has never been a member of the Federalist Society.


Update 2: Bush nominates Dugan for seat in Eastern District, by Jack Zemlicka, Wisconsin Law Journal, July 17, 2008


Update: In What's the rush? Ed Garvey construes the above post as a "press release" and with a quote from Judge Dugan within it.

Drug search legal

Marie Rohde at Proof and Hearsay on State v. Sumner, 2008 WI 94 (see this earlier post)

Ziegler, big lobby think alike

Patrick Marley and Stacy Forster, Milwaukee Journal Sentinel, July 12, 2008, on Wisconsin Department of Revenue v. Menasha Corporation, 2008 WI 88 (see this earlier post)

(via The Wheeler Report)

Menasha software decision viewed as a boon to Wisconsin business

Joe Vanden Plas at Wisconsin Technology News, July 11, 2008, on Wisconsin Department of Revenue v. Menasha Corporation, 2008 WI 88 (see this earlier post)

(via The Wheeler Report)

Supreme Court ruling means state take $300 million tax hit

Brian E. Clark at WisBusiness, July 11, 2008, on Wisconsin Department of Revenue v. Menasha Corporation, 2008 WI 88 (see this earlier post)

(via The Wheeler Report)

Wisconsin Supreme Court Delivers a Blow to Economic Development Activities

James E. Hough of The Hamilton Consulting Group, LLC, July 14, 2008 on State v. Beaver Dam Area Development Corporation, 2008 WI 90 (see this earlier post)

(via The Wheeler Report)

'Hefty v. Strickhouser' 2008 WI 96

The Wisconsin Supreme Court today issued its decision in this case (2006AP1094 and 2006AP1956) affirming the Court of Appeals [summary decision].
Opinion by Justice Prosser, with Chief Justice Abrahamson, and Justices Bradley, Crooks, Roggensack, and Butler
Dissent by Justice Ziegler


Civil Procedure: Scheduling Orders - Summary Judgment, Supreme Court Digest, by Professors Daniel D. Blinka and Thomas J. Hammer, Wisconsin Lawyer, September 2008


Local rules conflict with state rules, by David Ziemer, Wisconsin Law Journal, July 18, 2008

'Berner Cheese Corp. v. Krug' 2008 WI 95

The Wisconsin Supreme Court today issued its decision in this case (2005AP1527) affirming the Court of Appeals [unpublished decision].
Opinion by Justice Roggensack, with Justices Crooks, Prosser, and Ziegler
Concurrence by Chief Justice Abrahamson, with Justices Bradley and Butler


Attorneys: Fiduciary Duty - Conflicts, Supreme Court Digest, by Professors Daniel D. Blinka and Thomas J. Hammer, Wisconsin Lawyer, September 2008

'State v. Sumner' 2008 WI 94

The Wisconsin Supreme Court today issued its decision in this case (2006AP102-CR) reversing the Court of Appeals [unpublished decision].
Opinion by Justice Prosser for a unanimous court


Criminal Procedure: Search and Seizure - Protective Frisks, Supreme Court Digest, by Professors Daniel D. Blinka and Thomas J. Hammer, Wisconsin Lawyer, September 2008


Search at traffic stop OK, high court says, Regional News Briefs, Milwaukee Journal Sentinel, July 16, 2008


Drug search legal, by Marie Rohde at Proof and Hearsay

'State v. Doss' 2008 WI 93

The Wisconsin Supreme Court today issued its decision in this case (2006AP2254-CR) reversing the Court of Appeals, 2007 WI App 208, 305 Wis. 2d 414, 740 N.W.2d 410.
Opinion by Justice Butler for a unanimous court


Evidence: Hearsay - Documents - Affidavits, Supreme Court Digest, by Professors Daniel D. Blinka and Thomas J. Hammer, Wisconsin Lawyer, September 2008


Certification does not violate Confrontation Clause: Admission by affidavit non-testimonial, by David Ziemer, Wisconsin Law Journal, July 16, 2008


Supreme Court upholds estate theft conviction, Regional News Briefs, Milwaukee Journal Sentinel, July 16, 2008


(See earlier post on grant of review)

'State v. Hubbard' 2008 WI 92

The Wisconsin Supreme Court today issued its decision in this case (2006AP2753-CR) reversing the Court of Appeals, 2007 WI App 240, 306 Wis. 2d 356, 742 N.W.2d 893.
Opinion by Justice Prosser, with Justices Crooks, Roggensack, and Ziegler
Concurrence by Chief Justice Abrahamson, with Justices Bradley and Butler
Concurrence by Justice Butler


Criminal Law: Injury by Intoxicated Use of a Vehicle - Material Impairment, Supreme Court Digest, by Professors Daniel D. Blinka and Thomas J. Hammer, Wisconsin Lawyer, September 2008


April 10, 2008 argument audio


(see earlier post on grant of review)

"Individual Liberty and the Constitution"

At the Federalist Society Online Debate Series,

In a recent article in The American Spectator [June 2008] Judge Bork set out some thoughts on individual liberty and the Constitution. In the following forum we provide excerpts from this article followed by some thoughts on it from Cato’s Vice President for Legal Affairs and Director, Center for Constitutional Studies, Roger Pilon, Northwestern Law Professor Steve Calabresi, New York University Law Professor Barry Friedman, and George Mason University School of Law Professor Jeremy Rabkin.

Do you really think Justices Stevens and Ginsburg are about to create Supreme Court vacancies?

At Althouse last Saturday, a look back at a January 12, 1976, New York Times piece by political science professor C. Herman Pritchett on the appointment of Justice John Paul Stevens.

Isn't it amazing to think how differently that would be written today? For one thing, someone who favored the Democrats' approach, as Pritchett does, would never concede that the Republicans see the Court as a "law court" and the Democrats see it as "policy court." You never even hear those expressions these days, and you don't even find the idea embodied in that term "policy court" presented in a positive light. Today, both sides claim their judges follow the law and accuse the other side's judges as importing policy preferences into the decisions.

(via Dad29)

Remembering the barricades

The Economist reviews The Fourteenth of July: And the Taking of the Bastille, by Christopher Prendergast

the commemoration of July 14th scarcely began in revolutionary spirit. At a military fete to mark its first anniversary in 1790, and to celebrate the new constitutional settlement, the Marquis de Lafayette, a French general, swore an oath “to be forever faithful to the Nation, to the Law and to the King”. Dismayed, Jean-Paul Marat, a radical journalist and politician, described the proceedings that day as “shameful”, adding: “The Revolution, as yet, has been merely a sorrowful dream for the people!”

Of Detours and Learning Curves

Dianne Molvig profiles our State Bar's new president Diane Diel in Wisconsin Lawyer, July 2008

In her year leading up to taking over the top post, she focused on two key issues. The first was improving Wisconsin citizens' access to justice in civil legal matters. She chaired the committee that revised the petition that ultimately will go to the Wisconsin Supreme Court; the Board of Governors' unanimously approved it in June. Diel is pleased to see that progress seems to be under way on that issue.

(see previous post)

Another of her primary concerns is "the crisis - and I think that's the right word - around elections of judges," she says, "with the low-level advertising and the misrepresentations about what the justice system is and the role judges play in it. I think the state of the judiciary cries out for active engagement by members of the legal profession. It's our professional responsibility."

Those two issues remain in the limelight, Diel notes. But when Portage attorney Douglas Kammer won election this spring as the Bar's new president-elect, she knew another topic also demanded immediate attention - the question of voluntary versus mandatory Bar membership, which Kammer raised in his campaign.

Bar asks for Access to Justice Commission

A week ago our State Bar's then-president Thomas J. Basting, Sr. and then-president-elect Diane Diel filed a June 27, 2008 Petition with the Wisconsin Supreme Court

for an order creating a new Wisconsin Access to Justice Commission.

Such a commission would initially be paid for by our State Bar with some funding eventually coming from taxes.

Petition for Creation of Access to Justice Commission (08-17)

Howard Bichler elected Chairperson of State Bar Board of Governors

Our State Bar issued a press release last Friday announcing

Bowler[, Wisconsin] attorney Howard Bichler, General Counsel of the Stockbridge-Munsee Band of Mohican Indians, has begun one year of service as Chairperson of the State Bar of Wisconsin’s Board of Governors. ...

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

Ed Whelan at Bench Memos.

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

2,691 Decisions

Linda Greenhouse, on her retirement from U.S. Supreme Court reporting, in today's New York Times.

In five days on the witness stand, Judge Bork had a chance to explain himself fully, to describe and defend his view that the Constitution’s text and the intent of its 18th-century framers provided the only legitimate tools for constitutional interpretation. Through televised hearings that engaged the public to a rare degree, the debate became a national referendum on the modern course of constitutional law. Judge Bork’s constitutional vision, anchored in the past, was tested and found wanting, in contrast to the later declaration by Judge Anthony M. Kennedy, the successful nominee, that the Constitution’s framers had “made a covenant with the future.”

Tax ruling by Supreme Court might strain state budget

Jason Stein in the Wisconsin State Journal on Wisconsin Department of Revenue v. Menasha Corporation, 2008 WI 88 (see this earlier post)

(via WisPolitics)

Assessing a tax case

Editorial in today's Milwaukee Journal Sentinel on Walgreen Co. v. City of Madison, 2008 WI 80 (see this earlier post)

Business wins big in high court

Steven Walters and Avrum D. Lank in today's Milwaukee Journal Sentinel on Wisconsin Department of Revenue v. Menasha Corporation, 2008 WI 88 (see this earlier post)

More on Obama and English

Roger Clegg at The Corner

What’s disturbing about it is this: No, Obama does not deny that immigrants should learn English, but he’s clearly dismissive of those who think it’s a big deal or even merits any attention as a public policy matter, and suggests that the bigger deal is that more Americans don’t learn Spanish, and other foreign languages.

Mr. Clegg was the featured speaker at our chapter's August 16, 2007 and September 20, 2001 events.

(via KausFiles)

Power Split Hampers 2007-2008 Legislative Session

Adam Korbitz, Sandra Lonergan and Thomas Solberg with a Legislative Watch in our State Bar's Wisconsin Lawyer magazine, July 2008

The State Bar also successfully lobbied against several pieces of legislation that did not pass. Four proposed constitutional amendments - Assembly Joint Resolutions 24, 30, 31, and 56 - would have, respectively, compelled open supreme court decision conferences; eliminated the current $50 WisTAF assessment on attorneys; eliminated mandatory State Bar membership; and effectively eliminated any regulation of attorneys. None of these proposals advanced further than the committee stage of the legislative process.

In addition, the State Bar successfully lobbied against several perennial "tort reform" bills, none of which passed. These included A.B. 121, which would have imposed the federal Daubert standard on Wisconsin courts, and A.B. 147, which would have significantly curtailed product liability law in Wisconsin.

On our State Bar's website you will find its and its sections positions on matters pending before the Wisconsin Legislature, before Congress, and its policy positions on the "Administration of Justice".

Paperless Courts: E-Filing in Wisconsin Circuit Courts

Jean Bousquet and Marcia Vandercook in our State Bar's Wisconsin Lawyer magazine, July 2008, on In the matter of the Creation of a Court Rule Governing Electronic Filing in the Circuit Courts, 2008 WI 36 (see this earlier post)

Complaint filed against Justice-elect Gableman

The Associated Press reported at The Capital Times

One Wisconsin Now asked the state's Office of Lawyer Regulation to look into calls Gableman made [in 2002] to Republican political operatives before a fundraiser he hosted for then-Gov. Scott McCallum.

(via WisPolitics)

Court: Dog drug sniff is constitutional search

David Ziemer in the Wisconsin Law Journal, July 11, 2008, on State v. Arias, 2008 WI 84 (see this earlier post)

'State v. Beaver Dam Area Development Corporation' 2008 WI 90

The Wisconsin Supreme Court today issued its decision in this case (2006AP662), on certification from the Court of Appeals, reversing the Circuit Court.
Opinion by Justice Bradley, with Chief Justice Abrahamson, and Justices Crooks and Butler
Dissent by Justice Prosser, with Justice Roggensack
Justice Ziegler did not participate.


Open Meetings Law/Public Records Law: Quasi-governmental Corporations - Local Economic Development Corporations, 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)


Development groups weigh impact of verdict: High court says Beaver Dam meetings should be public, by Dan Benson, Milwaukee Journal Sentinel, July 28, 2008


High court stands up for government openness, by Tom Giffey for the Eau Claire Leader-Telegram


The people can handle the truth: Office-holders shouldn't fall in love with secrets, Editorial, Beloit Daily News
(via The Wheeler Report)


Wisconsin Supreme Court Delivers a Blow to Economic Development Activities: High Court Rules Against the Beaver Dam Area Economic Development Corporation in Open Meetings/Public Records Decision, by James E. Hough, The Hamilton Consulting Group, LLC, July 14, 2008
(via The Wheeler Report)


Court rulings favor open records, meetings, by Associated Press at NewsWatch

'Sands v. Whitnall School District' 2008 WI 89

The Wisconsin Supreme Court today issued its decision in this case (2005AP1026) reversing the Court of Appeals, 2007 WI App 3, 298 Wis. 2d 534, 728 N.W.2d 15.
Opinion by Justice Butler, with Chief Justice Abrahamson, and Justices Bradley, Crooks, Roggensack, and Ziegler
Dissent by Justice Prosser



PRC not considering new cases: Preliminary Review Committee on strike, by David Ziemer, Wisconsin Law Journal


Closed Session, Open Book: Sifting the Sands Case, by Donald Leo Bach, Wisconsin Lawyer, October 2009


Civil Procedure: Discovery - Contents of Discussions of Public Bodies in Closed Meetings, 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)


High court stands up for government openness, by Tom Giffey for the Eau Claire Leader-Telegram


Court finds no privilege for closed meetings: Substance of Whitnall School meetings must be disclosed in discovery, by David Ziemer, Wisconsin Law Journal, July 21, 2008


The people can handle the truth: Office-holders shouldn't fall in love with secrets, Editorial, Beloit Daily News (via The Wheeler Report)


Court rulings favor open records, meetings, by Associated Press at NewsWatch

'Wisconsin Department of Revenue v. Menasha Corporation' 2008 WI 88

The Wisconsin Supreme Court today issued its decision in this case (2004AP3239) affirming the Court of Appeals, 2007 WI App 20, 299 Wis. 2d 348, 728 N.W.2d 738.
Opinion by Justice Ziegler
Concurrence by Justice Crooks, with Justices Prosser and Roggensack
Dissent by Chief Justice Abrahamson, with Justices Bradley and Butler


Taxes and Textualism: Due Weight Deference to the Wisconsin Tax Appeals Commission, by Richard Esenberg, republished from State Court Docket Watch Fall 2008


Taxation: Sales and Use Tax - Custom Software Program - Level of Deference to be Accorded Decision of Wisconsin Tax Appeals Commission, Supreme Court Digest, by Professors Daniel D. Blinka and Thomas J. Hammer, Wisconsin Lawyer, September 2008


Ruling defines tax status of modified software, by Jack Zemlicka, Wisconsin Law Journal, July 21, 2008


Wisconsin must examine tax fairness, by State Senator Kathleen Vinehout (D-Alma), Tomah Journal, July 17, 2008
(via WisOpinion)


Reform the system: The state Supreme Court’s ruling in the Menasha case highlights the need to update the sales tax codes — and to take politics out of judicial races, Editorial, Milwaukee Journal Sentinel, July 17, 2008


Who's "swiftboating" the state Supreme Court?, by Rick Esenberg at Shark and Shepherd


Begging For Corruption, by Christian Schneider at Wisconsin Policy Research Institute


Ziegler, big lobby think alike: Business group invested heavily in her election to high court, by Patrick Marley and Stacy Forster, Milwaukee Journal Sentinel, July 12, 2008
(via The Wheeler Report)


Menasha software decision viewed as a boon to Wisconsin business, by Joe Vanden Plas at Wisconsin Technology News, July 11, 2008
(via The Wheeler Report)


Supreme Court ruling means state take $300 million tax hit, by Brian E. Clark at WisBusiness, July 11, 2008
(via The Wheeler Report)


Tax ruling by Supreme Court might strain state budget, by Jason Stein, Wisconsin State Journal
(via WisPolitics)


Business wins big in high court: Sales tax ruling may cost state $265 million, by Steven Walters and Avrum D. Lank, Milwaukee Journal Sentinel, July 12, 2008


Tax Appeals Commission, Ruling and Order (01-S-72 December 1, 2003)

Necrophilia is against the law

Imagine that. The sexual assault statute says that it applies "whether the victim is dead or alive..." And yet, it took a Supreme Court opinion to resolve this issue.


P.S. State v. Grunke, 2008 WI 82 (see this earlier post) --TRB

Use of piers can't be sold

Taking the court's reasoning to its logical conclusion, you can't even rent a vacation home on a lake if it includes use of a pier. Not that the court would actually extend its logic that far.

'Estate of Sustache v. American Family Mutual Ins. Co.' 2008 WI 87

The Wisconsin Supreme Court today issued its decision in this case (2006AP939) affirming the Court of Appeals, 2007 WI App 144, 303 Wis. 2d 714, 735 N.W.2d 186.
Opinion by Justice Prosser, with Chief Justice Abrahamson, and Justices Crooks, Roggensack, Butler, and Ziegler

¶3 The issue presented is whether an insurer has a duty to defend an insured, under the liability coverage provisions of a homeowner's insurance policy, when the plaintiffs' complaint asserts that the insured "without warning or provocation, punched decedent out, causing him to fall into a curb thereby causing serious injuries and ultimately death," leading to a count of "battery ... by intentionally causing bodily harm ... thereby causing decedent's death." ...

¶4 After carefully considering the facts and circumstances of this case, especially the allegations of the complaint and the pertinent homeowner's policy, we conclude that the Mathewses' homeowner's policy does not provide coverage for the plaintiffs' claims.

Concurrence by Justice Bradley

¶69 My view is that we should stick with this court's longstanding doctrine in interpreting insurance policies. Language in an insurance policy should be construed as understood by a reasonable person in the position of the insured. Frost v. Whitbeck, 2002 WI 129, ¶20, 257 Wis. 2d 80, 654 N.W.2d 225. As I have stated elsewhere, in determining whether there is an accident, the focus should be on the injury or damages, not on whether the action that caused the damages was intended. Stuart v. Weisflog, 2008 WI __, ¶4 & n.1, __ Wis. 2d __, __ N.W.2d __ (Bradley, J., concurring) (Stuart II). [see previous post] Such a view comports with the understanding of the reasonable insured.

Insurance: Duty to Defend - Intentional Acts - Four-corners Rule, Supreme Court Digest, by Professors Daniel D. Blinka and Thomas J. Hammer, Wisconsin Lawyer, September 2008


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


Lethal punch not covered by insurance, by Marie Rohde at Proof and Hearsay

'Stuart v. Weisflog's Showroom Gallery, Inc.' 2008 WI 86

The Wisconsin Supreme Court today issued its decision in this case (2005AP1287) reversing the Court of Appeals, 2006 WI App 109, 293 Wis. 2d 668, 721 N.W.2d 127.
Opinion by Justice Butler, with Justices Crooks and Prosser

¶4 ... We agree with American Family that the damages caused by Weisflog and WSGI in this case are not covered by the insurance policy because their misrepresentations were not accidental "occurrences" within the meaning of the policy, and because property damage arising out of their work is excluded from coverage. We therefore reverse the decision of the court of appeals and remand this matter for further proceedings consistent with this opinion and with Stuart I. [Stuart v. Weisflog's Showroom Gallery, Inc., 2008 WI 22]

Concurrence by Justice Bradley, with Chief Justice Abrahamson

¶74 I submit that it is the majority that correctly interprets Everson and that it is the concurrence that misapprehends Everson's intent. The concurrence appears to interpret Everson as determining that any time there is a volitional act involved in causing damages——including the mere act of speaking——no accident has occurred. [citation omitted]

¶75 By implying that accidents involve only circumstances in which there are no volitional acts of any sort, the concurrence appears to not only misinterpret Everson, but also contradicts our prior cases.

Concurrence by Justice Roggensack, with Justice Ziegler

¶83 I join only the majority opinion's conclusion that American Family Mutual Insurance Company's (American Family) policy does not provide coverage for the misrepresentations [citation omitted] and the negligent construction that the jury found. I write separately because: (1) the majority opinion appears to misread Everson v. Lorenz, 2005 WI 51, 280 Wis. 2d 1, 695 N.W.2d 298; (2) the majority opinion employs disputed facts that the jury did not find in order to support its reasoning; and (3) the claim for coverage due to Weisflog's Showroom Gallery, Inc.'s (Weisflog's Showroom) negligent construction of the addition to Robert Stuart and Lynn Farquhar-Stuart's (the Stuarts) residence is barred by the economic loss doctrine.

Analysis: 'Stuart v. Weisflog's Showroom Gallery, Inc.', by Steven Snedeker and Michelle Stoeck, adapted from "Coverage Issues Involving Statutory Misrepresentation", Hills Legal Group, Ltd., Hearsay newsletter, Volume 8, Issue 2, October 31, 2008


Insurance: Commercial General Liability Insurance Policy - Occurrences - Property Damages, Supreme Court Digest, by Professors Daniel D. Blinka and Thomas J. Hammer, Wisconsin Lawyer, September 2008


Analysis: 'Stuart v. Weisflog's Showroom Gallery, Inc.' from "Insurance Coverage Decisions that Will Impact Your Clients - 2008", by Terry J. Booth, Civil Trial of Wisconsin Summer Conference, August 14, 2008, Wisconsin Dells

Court of Appeals opinions week of July 7, 2008

(linked from post title)


Wisconsin Law Journal current case digests

Court rules that dog sniffing outside car was constitutional

Marie Rohde in today's Milwaukee Journal Sentinel on State v. Arias, 2008 WI 84 (see this earlier post)

Supreme Court sides with Walgreens in tax lawsuit

Dean Mosiman in the Wisconsin State Journal on Walgreen Co. v. City of Madison, 2008 WI 80 (see this earlier post)
(via WisPolitics)

Update: Walgreens was made to part with too much green for property taxes, by Mark Cohen at Minnesota Lawyer Blog
(via WisOpinion)

Bridging the Distance: Videoconferencing in Wisconsin Circuit Courts

Hon. Edward E. Leineweber in our State Bar's Wisconsin Lawyer magazine, July 2008, on the new Subchapter III of Chapter 885 of the Wisconsin Statutes

(See earlier posts on the May 1, 2008 order granting of the petition, and the January 8, 2008 hearing)

'State v. Sanders' 2008 WI 85

The Wisconsin Supreme Court today issued its decision in this case (2006AP2060-CR) affirming the Court of Appeals, 2007 WI App 174, 304 Wis. 2d 159, 737 N.W.2d 44.
Decision by Chief Justice Abrahamson, with Justices Bradley and Crooks
Concurrence by Justice Prosser, with Justices Roggensack and Ziegler
Concurrence by Justice Butler


Criminal Procedure: Search and Seizure - Protective Sweep - Search Incident to Arrest, Supreme Court Digest, by Professors Daniel D. Blinka and Thomas J. Hammer, Wisconsin Lawyer, September 2008

'State v. Arias' 2008 WI 84

The Wisconsin Supreme Court today issued its decision in this case (2006AP974-CR), on certification from the Court of Appeals, reversing the Circuit Court.
Opinion by Justice Roggensack, with Justices Crooks, Prosser, and Ziegler
Dissent by Justice Bradley, with Chief Justice Abrahamson and Justice Butler


Criminal Procedure: Traffic Stops - Police Dog's Sniff of Exterior of Vehicle - Prolongation of Stop, Supreme Court Digest, by Professors Daniel D. Blinka and Thomas J. Hammer, Wisconsin Lawyer, September 2008


Local cops praise a decision by the Court to allow drug dog sniffs of vehicles, by Wausau television WSAW staff


Court: Dog drug sniff is constitutional search: Supreme Court finds state and federal search and seizure provisions line up, by David Ziemer,Wisconsin Law Journal, July 11, 2008


Court rules that dog sniffing outside car was constitutional, by Marie Rohde, Milwaukee Journal Sentinel, July 10, 2008


(See this earlier post on grant of review)

'Town of Madison v. County of Dane' 2008 WI 83

The Wisconsin Supreme Court today issued its decision in this case (2006AP2554) reversing the Court of Appeals, 2007 WI App 177, 304 Wis. 2d 402, 737 N.W.2d 16.
Opinion by Justice Butler, with Justices Bradley and Crooks
Concurrence by Chief Justice Abrahamson
Dissent by Justice Roggensack, with Justices Prosser and Ziegler


Local Government: Bridges - County Aid, Supreme Court Digest, by Professors Daniel D. Blinka and Thomas J. Hammer, Wisconsin Lawyer, September 2008


January 17, 2008 argument audio


(see earlier post on grant of review)

'State v. Grunke' 2008 WI 82

The Wisconsin Supreme Court today issued its decision in this case (2006AP2744-CR, 2006AP2745-CR, and 2006AP2746-CR) reversing the Court of Appeals, 2007 WI App 198, 305 Wis. 2d 312, 738 N.W.2d 137.
Opinion by Justice Roggensack, with Justices Crooks, Prosser, and Ziegler
Concurrence by Chief Justice Abrahamson
Dissent by Justice Bradley, with Justice Butler


Necrophilia is against the law: Statute is not limited to rape-murder, by David Ziemer, Wisconsin Law Journal, July 10, 2008


WI Supreme Court quote of the day, by Thomas Foley at Illusory Tenant


Does sex assault law apply to necrophilia? by Tony Anderson, Wisconsin Law Journal, March 4, 2008


(See earlier post on grant of review)

'Larry v. Harris' 2008 WI 81

The Wisconsin Supreme Court today issued its decision in this case (2005AP2935) reversing the Court of Appeals, 2007 WI App 132, 301 Wis. 2d 243, 733 N.W.2d 911.
Opinion by Justice Roggensack, with Justices Bradley, Crooks, Prosser, and Ziegler
Concurrence by Chief Justice Abrahamson
Concurrence and dissent by Justice Butler


January 17, 2008 argument audio


(see earlier post on grant of review)


Civil Procedure: Defaults - Vacated - Summary Judgment, Supreme Court Digest, by Professors Daniel D. Blinka and Thomas J. Hammer, Wisconsin Lawyer, September 2008

State high court sides with Walgreens

Marie Rohde in today's Milwaukee Journal Sentinel on Walgreen Co. v. City of Madison, 2008 WI 80 (see this earlier post)

$800,000-plus mistake

Marie Rohde at Proof and Hearsay on Estate of Otto v. Physicians Insurance Company of Wisconsin, Inc., 2008 WI 78 (see this earlier post)

Reflections of an Observer: The International Conference on Legal Education Reform

by Charles R. Irish, Wisconsin International Law Journal, Volume 24, page 5

'Walgreen Co. v. City of Madison' 2008 WI 80

Madison proposes settlement with Walgreens in property tax dispute, by Nick Heynen of the Wisconsin State Journal, at the LaCrosse Tribune, September 2, 2009 8:00 am
(via WisPolitics)


Taxation: Property Tax Assessments - Income Approach - Leased Property - Above-market Rents, Supreme Court Digest, by Professors Daniel D. Blinka and Thomas J. Hammer, Wisconsin Lawyer, September 2008


Walgreens chain sues city of Eau Claire, by Christena T. O'Brien, Eau Claire Leader-Telegram staff
(via WisPolitics)


Assessing a tax case: The state Supreme Court’s ruling this week in favor of Walgreens in a major tax case could mean higher taxes for other taxpayers. Nonetheless, the court got this one right. Editorial, Milwaukee Journal Sentinel, July 12, 2008


Supreme Court sides with Walgreens in tax lawsuit, by Dean Mosiman, Wisconsin State Journal
(via WisPolitics)


Walgreens was made to part with too much green for property taxes, by Mark Cohen at Minnesota Lawyer Blog
(via WisOpinion)


State high court sides with Walgreens: Property tax case could have wide impact, by Marie Rohde, Milwaukee Journal Sentinel, July 9, 2008


The Wisconsin Supreme Court today issued its decision in this case (2006AP1859) reversing the Court of Appeals, 2007 WI App 153, 303 Wis. 2d 620, 735 N.W.2d 543. February 26, 2008 argument audio. See earlier post on grant of review.
Opinion by Justice Butler, with Justices Bradley, Crooks, Prosser, Roggensack, and Ziegler

¶3 ...As to the issue regarding the proper method of property tax assessment, we reaffirm the holding of Flood v. Bd. of Review, 153 Wis. 2d 428, 431, 451 N.W.2d 422 (1990), that Wis. Stat. § 70.32(1) "proscribes assessing real property in excess of market value." This holding is consistent with the nationally recognized principle that "[a] lease never increases the market value of real property rights to the fee simple estate." Appraisal Institute, The Appraisal of Real Estate 473 (12th ed. 2001). We also affirm that § 70.32(1) requires adherence to the Wisconsin Property Assessment Manual [citation omitted] (the Property Assessment Manual) absent conflicting law. The Manual is consistent with both statutory and case law in this state requiring an income approach assessment of a leased retail property's fair market value of the fee simple interest to be based on market lease rates, not actual contract rates, as long as encumbrances to the property do not cause its leased fee value to fall below a market rate value. ...

Concurrence by Chief Justice Abrahamson

¶98 The court is not bound by the Manual. The "common law which accurately reflects the state of the law, and the language of § 70.32(1), STATS., not the [Manual], control." [citation omitted]

¶99 I am not persuaded that the case law contradicts the Manual. [citation omitted] I therefore join in the mandate.

Engage Volume 9, Issue 2, June 2008

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

Discovery conduct waives right to jury trial

David Ziemer in the Wisconsin Law Journal, July 7, 2008, on Rao v. WMA Securities, 2008 WI 73 (see this earlier post)

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

Ed Whelan at Bench Memos.

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