Synopsis of 'Behrendt v. Gulf Underwriters Insurance Co.'

The Wisconsin Supreme Court on September 8, 2008 granted the petition to review the Court of Appeals decision in this case (2006AP2910), see Review granted in 'Behrendt v. Gulf Underwriters Insurance Co.'.

This case derives from a 2004 accident in which a fabricated metal tank used to collect oil at an oil change business exploded, injuring the petitioner, Kenneth Behrendt, an employee of the oil change business. Behrendt filed a number of claims against individuals, companies and insurers who were involved in making the vessel.

Here, Behrendt seeks review of an unpublished Court of Appeals' decision that affirmed an order granting summary judgment to two of the defendants, Silvan Industries, Inc., and its insurer, Gulf Underwriters Insurance Co., thereby dismissing Behrendt’s strict liability and general negligence claims against Silvan Industries. On appeal and in this petition for review Behrendt asserts that summary judgment in favor of Silvan was improper because factual issues exist and certain questions relating to negligence liability should be decided by a jury.

Some Background: Silvan manufactures tanks designed to be used under pressure. Silvan has a policy that employees can use scrap metal and company tools to make items for personal use, such as Christmas tree stands, barbecue grates, and plant stands. Its policy prohibits employees from making pressurized tanks for personal use.

Around 1994, Silvan employee, James Fisher, used this policy and fabricated a large tank for his son-in-law, Dan Linczeski. Linczeski owned Dan’s Faster Lube, an oil change business. He had asked Fisher for a tank to collect drained oil. Fisher and fellow employee/welder Rex Sommers helped make the tank. Once complete, the tank had more holes in it than were needed, so Linczeski asked Peter Harding (not a Silvan employee) to make some modifications to the tank. Once the modifications were made, Linczeski used air pressure to force collected oil from the tank into other holding tanks. The Court of Appeals decision noted that there was “considerable dispute” in the record as to whether Fisher knew Linczeski wanted a pressure vessel, whether Linczeski told Harding he planned to use air pressure with the tank, whether Harding advised against it, etc. What is undisputed is that the tank was not designed to be used under pressure.

In 2004, ten years after its manufacture, the tank exploded. Behrendt, an employee of Linczeski, was injured. After the explosion causing his injuries, Behrendt sued Fisher, Silvan, Harding, and Harding’s employer, along with various insurance companies, alleging negligence against all the parties and further alleging strict liability and vicarious liability against Silvan.

Fisher, Silvan, Harding, and Harding’s employer all moved for summary judgment. Behrendt agreed to dismiss the claims against Harding’s employer. The court denied Fisher’s and Harding’s motions, but granted Silvan’s.

The circuit court concluded there could be no strict liability against Silvan because Silvan did not manufacture the tank. It further concluded that even if Silvan were negligent, the negligence was too remote from the injury and noted that public policy considerations precluded any award.

Behrendt appealed the portion of the summary judgment order dismissing the negligence claims against Silvan. The strict liability dismissal was not at issue on appeal. The Court of Appeals affirmed. Behrendt asks the Supreme Court to review two questions:
- Does Silvan owe a duty under Wisconsin law and pursuant to Pfeifer v. Standard Gateway Theater, Inc. 262 Wis. 229, 55 N.W.2d 29 (1952) to Behrendt under the pleadings and facts in this negligence case?
- Is Sylvan entitled to summary judgment under Wisconsin negligence law for (1) its own negligence regarding its program for allowing employees to use Sylvan materials and equipment to fabricate items; and (2) vicarious liability for the negligence of its employee, Fischer?

From Marinette County.

Statute in the Abyss:

Statute in the Abyss: The Implications of Insanity on Wisconsin's Slayer Statute, by Christopher M. Eisold, Marquette Law Review, Volume 91, page 875 (Spring 2008), on Wisconsin Statues §854.14.

Petition filed on prosecutor's duties after convictions

A Petition was filed with the Wisconsin Supreme Court on September 19, 2008 by Ralph M. Uttke, President, the Wisconsin District Attorneys Association to amend SCR 20:3.8 on a prosecutor's duties after learning of evidence indicating a convicted defendant likely was innocent.

In the matter of the Amendment of Supreme Court Rules Chapter 20 Rules of Professional Conduct for Attorneys (08-24)

This Week in Liberal Judicial Activism: Week of September 29, 2008

Ed Whelan at Bench Memos.

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

Synopsis of 'City of Milwaukee Post No. 2874 v. Redevelopment Authority of the City of Milwaukee'

The Wisconsin Supreme Court on September 8, 2008 granted the petition to review the Court of Appeals decision, 2008 WI APP 24, in this case (2006AP2866), see Review granted in 'City of Milwaukee Post No. 2874 v. Redevelopment Authority of the City of Milwaukee'.

This extensively litigated case arises from the condemnation of an abandoned 11-story building at 2601 West Wisconsin Ave. in Milwaukee and the application of the “unit rule” to value the property. The unit rule requires that real estate be valued in respect to its gross value as a single entity as if there was only one owner. (4-13 Nichols, Eminent Domain § 13.01[16] § 13-28).

Some background: Briefly, in 1942, the VFW owned the building located on the property and used it as its post headquarters. In 1961, the VFW conveyed the land and improvements to Towne Metropolitan, Inc., which constructed an 11-story hotel. In exchange for the conveyance, the VFW obtained a 99-year lease, with the option to renew for another 99 years. Under the leasehold, the VFW paid $1.00 annually and the lessor would pay all real estate taxes, all utilities, and cover maintenance on the property.

The property operated as a Hilton Hotel and then as a Holiday Inn. In 1986, Towne sold the property to Marquette University, which used it as a dormitory. In 1994, the property was sold to the Maharishi Vedic University for $600,000. Both sales required the new owners to assume the responsibility to comply with the VFW’s lease. The Maharishi never occupied the building after its acquisition.

The Redevelopment Authority of the City of Milwaukee (RACM) eventually condemned the abandoned building. As compensation, RACM offered Maharishi and the VFW $440,000 for the property. In December 2001, a circuit court divided the $440,000, allocating $300,000 to the VFW for the value of its leasehold interest. The VFW appealed the adequacy of this award to the Condemnation Commission, which requested instruction from the trial court as to how to value the property. The trial court instructed the Commission to value the property using the unit rule. The VFW petitioned for leave to appeal this determination. The Court of Appeals granted this request and ruled that the unit rule should be used but declined to address questions concerning the constitutionality of the application of the rule. See City of Milwaukee Redev. Auth. v. Veterans of Foreign Wars Post 2874, 2003 WI App 225, 267 Wis. 2d 960, 671 N.W.2d 717, unpublished slip op. (Sept. 30, 2003).

In December 2004, the Condemnation Commission found the value of the property to be $15,000 less than the initial award. The VFW appealed this conclusion and asked the trial court to declare the application of the unit rule in this case unconstitutional. The trial court denied the motion and the case was tried to a jury on the question of the value of the property. The jury returned a verdict that the hotel building at 2601 West Wisconsin Avenue had no value. Judgment was then entered against the VFW in the amount of $387,348.24, which included the $300,000 it had already been paid, plus accumulated interest and costs.

VFW challenged the constitutionality of this decision. The circuit court dismissed the claim, ruling that the decision was consistent with the application of the unit rule. VFW appealed. The Court of Appeals reversed in a published decision, ruling that the application of the unit rule under the unique circumstances presented in this case was unconstitutional.

The RACM seeks Supreme Court review of this decision. RACM asserts that the Court of Appeals’ decision violates its due process rights insofar as RACM complied with what the court had previously directed them to do and that the circuit court order was consistent with earlier litigation involving this property. RACM describes the court of appeals’ decision as creating a “new doctrine – a first-ever leasehold exception to the unit rule.” RACM also VFW should have been precluded from challenging the unit rule’s constitutionality at this stage in the litigation.

VFW opposes review, primarily on the grounds that this is an unusual fact scenario unlikely to recur. Several non-party amicus briefs have been filed advocating Supreme Court review. The State of Wisconsin asserts that the published Court of Appeals’ decision “improperly expands” the concept of “just compensation” and contends that the decision affects “all Wisconsin condemnors, every associated public project, and all tenants with long-term leases in their path.” From Milwaukee County.

Court of Appeals opinions week of September 22, 2008

(linked from post title)


Relatives who assist suicide can inherit, by David Ziemer, Wisconsin Law Journal, October 2, 2008, on Lemmer v. Schunk (2007AP2680 September 25, 2008)


Suicide and Inheritance: A New Ruling by the Wisconsin Court of Appeals, by Judith G. McMullen, Marquette University Law Faculty Blog, October 1, 2008, on Lemmer v. Schunk (2007AP2680 September 25, 2008)


Court rules mother was a victim: Woman put up bail for her son, who then took off, by Marie Rohde, Milwaukee Journal Sentinel, September 27, 2008, on State v. Agosto (2006AP2646-CR September 23, 2008)


Man must repay forfeited bail to his mother, by David Ziemer, Wisconsin Law Journal, September 26, 2008, on State v. Agosto (2006AP2646-CR September 23, 2008)


Court rules on suicide heirs: State allows inheritance for people who assist others in killing themselves, by Marie Rohde, September 26, 2008, on Lemmer v. Schunk (2007AP2680 September 25, 2008)


Storage company loses appeal: Firm auctioned couple’s belongings, by Marie Rohde, September 26, 2008, on Cook v. Public Storage, Inc. (2007AP2077 September 25, 2008)


Appellate decisions released, by Marie Rohde, Proof and Hearsay, on Lemmer v. Schunk (2007AP2680 September 25, 2008), and on Lubinski v. Lubinski (2007AP1701 September 25, 2008)


Court upholds jury award, by Marie Rohde, Proof and Hearsay, on Cook v. Public Storage, Inc. (2007AP2077 September 25, 2008)


Court: Relatives who assist in suicide can inherit, Associated Press in the Chicago Tribune, on Lemmer v. Schunk (2007AP2680 September 25, 2008)


Court tells son to pay mom back, by Marie Rohde, Proof and Hearsay, on State v. Agosto (2006AP2646-CR September 23, 2008)


Wisconsin Law Journal current case digests

Ten Liberal Movies So Lame They Make Even Democrats Want to Vote Republican

Dan Kois at New York magazine, starting at number 10 with Bob Roberts.

The first movie directed by Lucky Ones star Tim Robbins is a clumsy mockumentary about a conservative folksinger turned senator and his semi-evil deeds. It's clever at times, but more often eye-roll-inducing in its obviousness.

The IMDB Quotes include lyrics of one of the movie's songs, "Complain".

Some people will have /
Some simply will not /
But they'll complain and complain and complain and complain and complain /

Some people will work /
Some never will /
But they'll complain and complain and complain and complain and complain /

Like this: /
It's society's fault I don't have a job /
It's society's fault I'm a slob /
I'm a drunk, I don't have a brain /
Give me a pamphlet while I complain /
Hey pal you're living in the land of the free
No-one's gonna hand you opportunity

According to Wikipedia, "A soundtrack album was never released because Robbins feared that the songs might be played out of context. However, the Californian punk rock band The Vandals covered the song 'Complain' on their album Play Really Bad Original Country Tunes."

(via Althouse)

Supreme Court accepts 17 new cases

The cases and synopses are in today's Wisconsin Supreme Court press release along with a listing of cases denied review.

The accepted cases and the issues in each are covered in September 22, 2008 posts, below.

Update: On denials of review in:
Evans v. Bertrand (2004AP2680-W) Chief Justice Abrahamson and Justice Crooks dissent;
State v. Greene (2007AP269-CR) Chief Justice Abrahamson dissents;
Willowglen Academy v. Connelly (2007AP1178) Justice Roggensack dissents;
Joyce v. Joyce (2007AP1751 Justice Roggensack dissents;
Brewer v. Brickline (2007AP2949) Chief Justice Abrahamson and Justice Bradley dissent.

Wisconsin Supreme Court term moves forward

David Ziemer in the Wisconsin Law Journal

The Wisconsin Supreme Court term for 2008-09 just began this month,

But see Definition of terms

and some important cases have already been heard or are scheduled to be heard soon.

Former State Supreme Court Justice to Teach at UW Law School

The UW announced today that

[Louis] Butler, who served on the Supreme Court from 2004-08, will serve a two-year stint as the school's Justice in Residence.

His duties will include teaching courses in criminal law, appellate advocacy and legal process. Butler will also work with students and faculty in the Law School's moot court and clinical programs and other areas of the curriculum that can benefit from his body of experience.

Update: Justice Butler to teach at UW for two years, by Mike Miller, The Capital Times

Butler, meanwhile, said he looks forward to the move back to academia. "I'm excited about this chance to return to the UW Law School," he said. "It's a wonderful opportunity to work with a top-notch faculty and to teach these promising young lawyers. To be able to come back to the place that taught me to be a lawyer is a privilege," he said.

Update 2: Butler plans to teach at UW Law School, by Tony Anderson, Wisconsin Law Journal, September 25, 2008

The new role begins Oct. 1. Although they were still working out the details, Butler said he expected to spend the rest of this semester doing some guest lectures, preparing to teach in the spring and possibly working with the moot court team.

Wisconsin Civil Jury Instruction Committee meets September 24-26, 2008

The agenda includes:
Risk Contribution Theory;
Private Nuisance;
Public Nuisance;
Negligence per se;
Punitive Damages after Exxon Shipping Co. v. Baker;
Existence of a Partnership;
Statute of Limitations after 'James Gumz v. Northern States Power Co.' 2007 WI 135;
Wis. J. I. Civil 7060 Protective Placement after 2007 Wis. Act 45;
Eminent domain: Unit rule;
Wis. J. I. Civil 1723 Enhanced Injuries;
Wis. J. I. Civil 1023 Medical negligence: Misdiagnosis;
Mispresentation series after 'Below v. Norton' 2008 WI 77;
Updates to instruction comments.

Subsequent meetings are scheduled for: November 6-7, 2008; January 29-30, 2009; May 21-22, 2009; September 23-25, 2009; and November 5-6, 2009.

Decision on reconsideration in 'Hipp v. Circuit Court for Milwaukee County' 2008 WI 118

The Wisconsin Supreme Court today issued its decision in this case (2007AP230-W) denying a Motion for Reconsideration of 'Hipp v. Circuit Court for Milwaukee County' 2008 WI 67.
Per Curiam
Chief Justice Abrahamson and Justice Gableman did not participate.

Board supports electronic filing in appellate court, opposes BBE’s proposed conditional admission petition, among other actions

More on the September 12-13, 2008 meeting of our State Bar's Board of Governors, at which it decided its positions on ten rules petitions pending before the Wisconsin Supreme Court.

Certification accepted in 'Tammi v. Porsche Cars North America, Inc.'

The Wisconsin Supreme Court on September 11, 2008 accepted the Seventh Circuit certification in this case (2008AP1913-CQ). The issues:

When a consumer defined in Wis. Stat. § 218.0171 (1) (b) 4 brings an action pursuant to subsection (7), if that consumer, after making his Lemon Law demand, then exercises an option to purchase and buys the vehicle as provided in the lease, is the consumer then entitled to recover the amount of the purchase price?

If the consumer defined in Wis. Stat. § 218.0171 (1) (b) 4 is entitled to recover the vehicle purchase price when he exercises the purchase option provided in the lease, does the purchase amount qualify as pecuniary loss subject to the doubling provision in subsections (7)?

If the answers above are in the affirmative, is the consumer permitted to keep the purchased vehicle in addition to the receipt of the damage award or must the vehicle be returned to the manufacturer?

Is a damage award under subsection (7) subject to a reduction for reasonable use of the vehicle?

Statements of issues are from the most recent Table of Pending Cases.

Certification accepted in 'State v. Wood'

The Wisconsin Supreme Court on September 11, 2008 accepted the Court of Appeals certification in this case (2007AP2767-CR). The issues:

Whether Wis. Stat. § 971.17 (3) (c), which authorizes the involuntary medication of persons committed to the Department of Health and Family Services after being found not guilty of a crime by reason of mental disease or defect, and who are further determined to be incompetent to refuse medication or treatment violates due process because: (1) it allows involuntary medication without a finding of dangerousness; and (2) fails to provide a mechanism for periodic review of the medication order.

Statements of issues are from the most recent Table of Pending Cases.

Review granted in 'Ho-Chunk Nation v. Department of Revenue'

The Wisconsin Supreme Court on September 11, 2008 granted the petition to review the Court of Appeals decision, 2008 WI App 95, in this case (2007AP1985). The issues:

Is the petitioner entitled to a refund of cigarette tax revenue for the sale of cigarettes on DeJope property pursuant to Wis. Stat. §§ 139.31 and 139.323 (3)?

What is the reasonable interpretation of Wis. Stat. § 139.323 (3)’s “designated . . .trust land” within the context of the sale of cigarettes on the DeJope property?

Statements of issues are from the most recent Table of Pending Cases.

Review granted in 'State v. Gajewski'

The Wisconsin Supreme Court on September 11, 2008 granted the petition to review the Court of Appeals decision in this case (2007AP1849-CR). The issue:

Whether trial counsel provided ineffective assistance by an “objective standard of reasonableness” or whether the “reasonableness of counsel’s actions” were “substantially influenced by the defendant’s own statements or actions” under the Strickland v. Washington, 466 US 668, 688 (1984) test.

Statements of issues are from the most recent Table of Pending Cases.

Review granted in 'Kenosha Professional Firefighters v. City of Kenosha'

The Wisconsin Supreme Court on September 11, 2008 granted the petition to review the Court of Appeals decision [Summary Disposition May 28, 2008] in this case (2007AP1198). The issues:

Whether a request for an award of costs was timely in view of Wis. Stat. § 806.06 (4).

Whether the denial of a request for costs was a final order for purposes of appeal (see Sanders v. Estate of Sanders, 2008 WI 63, ____ Wis. 2d ___, 750 N.W.2d 806).

Statements of issues are from the most recent Table of Pending Cases.

Review granted in 'Milwaukee Journal Sentinel v. Department of Administration'

The Wisconsin Supreme Court on September 11, 2008 accepted certification from the Court of Appeals decision in this case (2007AP1160). The issue:

Whether courts have jurisdiction to review the process the legislature used to amend the open records law (Wis. Stat. § 19.37 (1) (a)) by ratifying a collective bargaining agreement; and, if so, whether the legislative process was effective to bring about a change in the law.

Statements of issues are from the most recent Table of Pending Cases.

Election Reality Check

Jenny Price in the "Campus News - Dispatches" feature, On Wisconsin, Fall 2008, on the Wisconsin Advertising Project

“I don’t have to be in the Obama strategy room or the McCain strategy room to know which states they’re targeting. I’ll know when I see the [advertising] buys,” Goldstein [political science Professor Ken Goldstein, the project’s director] says. “I don’t need to sit in on their focus groups to know what issues are working for them. I can tell that from the ads they’re running.”

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

Review granted in 'Bubb v. Brusky'

The Wisconsin Supreme Court on September 11, 2008 granted the petition to review the Court of Appeals decision, 2008 WI App 104, in this case (2007AP619). The issues:

Whether a jury should have been permitted to consider plaintiff’s informed consent claim as part if a medical malpractice suit.

Where there is debate in the medical community concerning two distinct methods of treating a particular medical condition, is the treating physician required to inform the patient of the two alternatives under Martin v. Richards, 192 Wis. 2d 156, 176, 531 N.W.2d 70 (1995)?

Statements of issues are from the most recent Table of Pending Cases.

Review granted in 'Estate of Genrich v. OHIC Insurance Company'

The Wisconsin Supreme Court on September 12, 2008 granted the petition to review the Court of Appeals decision in this case (2007AP541). The issues:

Is there a conflict between Paul v. Skemp, 2001 WI 42, 242 Wis. 2d 507, 625 N.W.2d 860 and Fojut v. Stafl, 212 Wis. 2d 827, 569 N.W.2d 737 (Ct. App. 1997) concerning the rule of law as to when an “injury” results from medical malpractice and begins the running of the statute of limitations?

Whether the statute of limitations for wrongful death based on medical malpractice runs less than three years from the date of death.

Statements of issues are from the most recent Table of Pending Cases.

Review granted in 'Coulee Catholic Schools v. Labor and Industry Review Commission'

The Wisconsin Supreme Court on September 17, 2008 granted the petition to review the Court of Appeals decision, 2008 WI App 68, in this case (2007AP496). The issues:

Whether deference should be accorded to a religious organization’s classification of a position of employment for purposes of determining whether state employment discrimination laws may be enforced against the religious organization and, if so, to what degree?

In determining whether an employment position qualifies as a "ministerial" one under the First Amendment's guarantee of the free exercise of religion, may a court analyze the hiring criteria and process that the religious organization used to fill the position?

Is the Jocz test (Jocz v. LIRC, 196 Wis. 2d 273, 538 N.W.2d 588 (Ct. App. 1995)) adequate for resolving cases involving the interplay of First Amendment guarantee of religious freedom and state law prohibiting employment discrimination?

May a state court order that a person be reinstated to an employment position with a religious organization after a finding of employment discrimination if the position involves the teaching of religious doctrine or participation in religious ritual and worship?

Statements of issues are from the most recent Table of Pending Cases.

Review granted in 'PRN Associates LLC v. Department of Administration'

The Wisconsin Supreme Court on September 12, 2008 granted the petition to review the Court of Appeals decision, 2008 WI App 103, in this case (2007AP476 and 2007AP751). The issues:

Whether the trial court lacked personal jurisdiction over a state agency based upon sovereign immunity because the state did not consent to the declaratory judgment action.

Whether the action falls within the takings exception or waiver exception (Wis. Stat. § 775.01) to a sovereign immunity.

Whether the sole remedy of a proposer, wronged by the state in a state procurement, is an injunction against letting the contract.

Statements of issues are from the most recent Table of Pending Cases.

Review granted in 'Umansky v. ABC Insurance Co.'

The Wisconsin Supreme Court on September 11, 2008 granted the petition to review the Court of Appeals decision, 2008 WI App 101, in this case (2007AP385). The issue:

Under current public officer immunity analysis, whether any duties were delegated and, if so, whether the delegation of a state officer’s duties under 29 CFR § 1910.23 (c) (1), as adopted by Wis. Admin. Code §§ Comm 32.15 and 32.50, were ministerial or discretionary in nature.

Statements of issues are from the most recent Table of Pending Cases.

Review granted in 'State v. Ward'

The Wisconsin Supreme Court on September 12, 2008 granted the petition to review the Court of Appeals decision in this case (2007AP79-CR). The issue:

Whether incriminating statements and waiver of counsel made during the police interrogation of the defendant were voluntary.

Statements of issues are from the most recent Table of Pending Cases.

Review granted in 'Nedvidek v. Kuipers'

The Wisconsin Supreme Court on September 12, 2008 granted the petition to review the Court of Appeals decision in this case (2006AP3075). The issues:

Whether state university officials violated university system regulations in renaming an athletic stadium.

Whether state university officials violated state open meetings and public records law in renaming a stadium.

Whether local veterans' organizations were third-party beneficiaries of a use agreement between a state university and a local municipality regarding the use and status of an athletic stadium.

Whether the petitioners have legal standing to challenge the state university officials’ renaming of a stadium.

Statements of issues are from the most recent Table of Pending Cases.

Review granted in 'Horst v. Deere & Company'

The Wisconsin Supreme Court on September 11, 2008 granted the petition to review the Court of Appeals decision, 2008 WI App 65, in this case (2006AP2933). The issue:

Whether Wisconsin law includes a “bystander contemplation” test as part of its strict products liability jurisprudence.

Statements of issues are from the most recent Table of Pending Cases.

Review granted in 'Behrendt v. Gulf Underwriters Insurance Co.'

The Wisconsin Supreme Court on September 8, 2008 granted the petition to review the Court of Appeals decision in this case (2006AP2910). The issues:

Does the defendant manufacturer owe a duty under Wisconsin law and pursuant to Pfeifer v. Standard Gateway Theater, Inc., 262 Wis. 229, 55 N.W.2d 29 (1952), to the plaintiff under the pleadings and facts in this negligence case?

Is the defendant manufacturer entitled to summary judgment under Wisconsin negligence law for (1) its own negligence regarding its program for allowing employees to use its materials and equipment to fabricate items and (2) vicarious liability for the negligence of an employee?

Statements of issues are from the most recent Table of Pending Cases.

Review granted in 'City of Milwaukee Post No. 2874 v. Redevelopment Authority of the City of Milwaukee'

The Wisconsin Supreme Court on September 8, 2008 granted the petition to review the Court of Appeals decision, 2008 WI APP 24, in this case (2006AP2866). The issues:

Did the circuit court violate the due process rights of the Redevelopment Authority of the City of Milwaukee (RACM) by first issuing decisions requiring the “unit rule” of real estate valuation to be followed and then issuing a decision requiring the opposite?

Did the court violate RACM’s federal and state constitutional rights, its statutory rights, and established case law by creating a first-of-its-kind leasehold exception to to Wisconsin’s unit rule and by requiring RACM to pay more for property taking in condemnation than is required under (a) the “just compensation” clauses of the state and federal constitutions, (b) Wis. Stat. Ch. 32, and (c) Wisconsin and U.S. Supreme Court decisions?

Despite Supreme Court decisions recognizing that condemnation terminates leases and admissions by the tenant that fee title to the property was worthless, may the court order RACM to value a terminated lease in worthless real estate and pay the tenant some other award for that value?

Did claim preclusion and waiver prevent the tenant from challenging the unit rule’s constitutionality?

Statements of issues are from the most recent Table of Pending Cases.

This Week in Liberal Judicial Activism: Week of September 22, 2008

Ed Whelan at Bench Memos.

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

Sarah Palin

In October of 1987, I saw a then-unknown band called Guns & Roses open for Alice Cooper in front of a crowd of only about 2,000 people. Two months later, they performed a concert on New Year's Eve from CBGB on MTV (alot of people watched MTV back then).

I was thrilled. Everybody is going to love this band, I thought. Many did; six months later, they were the biggest rock and roll band in the world. But many hated them with a fury I could not even comprehend.

So, why am I writing about Guns and Roses on the blog of the Milwaukee Federalist Society, you ask?

Because. Two years ago, the Republican party in Alaska was as corrupt as Democrats are everywhere. But the Wall Street Journal would, fairly regularly, write about a new reformer named Sarah Palin, who was taking on that corrupt establishment, and winning.

Then, a month ago, she was named McCain's running mate, and 37 million people watched her speak at the Republican National Convention.

I was thrilled; everybody is going to love this woman, I thought. Many did; but many others responded with a visceral hatred I could not, and cannot comprehend.

Senator Obama is frequently referred to as a "rock star." Indeed, he's been on the cover of Rolling Stone. Twice. People talk about him as if he represents something new.

And yet, he has nothing to offer but the same, tired statist and collectivist policies, and appeasement of foreign enemies, that was in vogue in the Seventies, and that most folks thought we forever turned our backs on with the 1981 tax cuts and arms build-up.

Yet, there Obama is, on the cover of Rolling Stone. While Sarah Palin is mocked.

It is as if it were January 1988, and there were no mention of Guns & Roses anywhere to be found in the magazine, while Barry Manilow is on the cover.

Worse, actually. It's as if some nobody who does Barry Manilow cover songs was on the magazine cover. At least Barry Manilow was doing his own thing, whereas Sen. Obama is just reviving an old worn-out canard of failed wealth restribution.

Oh, well. There is no accounting for some peoples' taste. But I still love Guns & Roses. And I so love Sarah Palin.

Court of Appeals opinions week of September 15, 2008

(linked from post title)


Injured motorcyclists can't collect damages, by Marie Rohde, on Buckel v. Allstate Indemnity Company (2007AP1836 September 17, 2008)


Appellate court only allows simple interest, by David Ziemer, Wisconsin Law Journal, September 19, 2008, on Morrisson v. Rankin (2008AP422 September 16, 2008)


Ex-attorney general loses appeal on bill drafts: Out of office, Lautenschlager can’t pursue claim, judges say, by Steven Walters, Milwaukee Journal Sentinel, September 22, 2008, on State v. Zien (2007AP1930 September 16, 2008)


Court dismisses case over lawmakers’ secrecy, Associated Press, LaCrosse Tribune, September 17, 2008, on State v. Zien (2007AP1930 September 16, 2008)
(via WisPolitics)


Court: Reconsider taxes on Crandon mine site, Associated Press, LaCrosse Tribune, September 17, 2008, on Forest County Potawatomi Community v. Township of Lincoln (2007AP2523 September 16, 2008)
(via WisPolitics)


Appeals Court ruling on mining land favors tribes, by Marie Rohde, Milwaukee Journal Sentinel, September 17, 2008, on Forest County Potawatomi Community v. Township of Lincoln (2007AP2523 September 16, 2008)


Tribes win tax case, by Marie Rohde, Proof and Hearsay, on Forest County Potawatomi Community v. Township of Lincoln (2007AP2523 September 16, 2008)


Wisconsin Law Journal current case digests

Redistricting committee files update with Supreme Court

The Wisconsin Court System announced

A committee recommending procedures that could be used to help settle disputes over legislative and congressional redistricting has filed an updated memo on its findings with the Wisconsin Supreme Court.

Cover letter and Redistricting Committee's 09/12/08 supplemental memorandum.

The Supreme Court is expected to consider the committee’s supplemental memo and proposed procedures in early 2009.

In the meantime, the Court invites public comment on the supplemental memo.

See Rules hearings April 8, 2008

In the matter of the adoption of procedures for original action cases involving state legislative redistricting (02-03)

'Office of Lawyer Regulation v. Chvala' 2008 WI 117

The Wisconsin Supreme Court today issued its decision in this case (2006AP1423-D) accepting the referee's recommendation of reinstatement.
Per Curiam
Justices Prosser and Gableman did not participate.


Chvala gets his law license back, by Steven Walters at NewsWatch

What’s in a business name?

David Ziemer in the Wisconsin Law Journal, September 17, 2008, on D.L. Anderson’s Lakeside Leisure Co. Inc. v. Anderson (2007AP46), see Supreme Court arguments September 2008

A Long Cup of Coffee with SPD Nick Chiarkas

Randy Kraft interviews Nick Chiarkas in our State Bar's monthly magazine, Wisconsin Lawyer, September 2008

Nick Chiarkas is State Public Defender.

Randy Kraft is communications director of the Wisconsin State Public Defender's Office.

Economic Liberty

The Ninth Circuit on September 16 struck down a California regulation that licensed pest control.

In a footnote, the court wrote, "We conclude that mere economic protectionism for the sake of economic protectionism is irrational with respect to determining if a classification survives rational basis review. In doing so, we agree with the Sixth Circuit in Craigmiles and reject the Tenth Circuit’s reasoning in Powers v. Harris, 379 F.3d 1208, 1218-19 (10th Cir. 2004). Powers rejected the Sixth Circuit’s conclusion that economic protectionism for its own sake is irrational. Id. We do not disagree that there might be instances when economic protectionism might be related to a legitimate governmental interest and survive rational basis review. However, economic protectionism for its own sake, regardless of its relation to the common good, cannot be said to be in furtherance of a legitimate governmental interest."

hat tip Amber.

Unfortunately, the court rejected the Privileges and Immunities Clause claim.

Appellate Court E-Filing on the Horizon

David R. Schanker in Wisconsin Lawyer, September 2008

Under the proposed rules, the filing of an electronic brief, no-merit report, or petition for review will be mandatory for lawyers and optional for self-represented parties. E-filed documents will be available online to judges, court staff, and the lawyers or pro se litigants in the case but will not be electronically accessible by the public.

See Hearing on appellate e-filing October 28, 2008

Wisconsin A.G. Lawsuit May "Disenfranchise Voters"

Comment enabled ACSblog quotes Wisconsin Government Accountability Board Director Kevin Kennedy.

State Bar narrowly supports petition to cite unpublished opinions

Jack Zemlicka reports in today's Wisconsin Law Journal.

29 of the 46 board members in attendance at the Sept. 12 meeting, or the required 60 percent, endorsed the Wisconsin Judicial Council’s petition

See Supreme Court arguments and hearings October 2008

Update: WisBar reported September 15, 2008 Board supports petition to allow citation of unpublished opinions for certain purposes

Supreme Neglect of Property Rights

New book by Prof. Richard Epstein.

Wisconsin law prohibits unlimited contracts for court reporting services

Jordan Lamb in the Legal News & Trends feature in Wisconsin Lawyer September 2008 on Wis. Stat §804.03(3).

In general, depositions may not be taken before "a person who has entered into a contract for court reporting services unless the contract is limited to a particular action or incident." This statute was designed to end the practice of entities who are frequent parties to litigation from entering into long-term, unlimited contracts with Wisconsin court reporters or court reporting firms operating in Wisconsin under which the parties receive volume discounts, priority status, early transcripts, and so on. [footnotes omitted]

Wisconsin Supreme Court Justice Roggensack to Address Common Cause Board on Reform Issues Today at Meeting in State Capitol

Press release

(via The Wheeler Report)

Celebrate the 221st Birthday of the United States Constitution on September 17

Our State Bar's President Diane Diel observes Constitution Day.

As President of the State Bar of Wisconsin, I am privileged to represent over 20,000 attorneys who embody this heritage. As close observers of our judicial system, we recognize that it is not perfect –

For example -

critical components are underfunded and many citizens lack the resources needed to gain full access to justice – but we also know that it remains an indispensable cornerstone of the democracy envisioned by the patriots who gathered in Philadelphia over 200 years ago.

(via The Wheeler Report)

Board takes action on Siefert v. Alexander in appellate court

Our State Bar announced yesterday that at the September 12-13, 2008 Board of Governors meeting

The board reaffirmed the State Bar’s strong support for an independent judiciary and expressed its continuing support for existing regulations as established by the Judicial Commission. While the board agreed not to file an amicus brief at this time, it reserved the right to consider filing an amicus if and when the case has been decided on the record by the district court and the case is appealed in the 7th Circuit Court of Appeals. The State Bar will send a letter to the district court informing it of these actions.

See DOJ asks State Bar to get involved in 'Siefert' case, Board discusses Attorney General's request to support 'Siefert', among other actions, Member input sought in judicial free speech case), and Board awaits member response to election survey.

Law Blogs: The Great Equalizer

Kevin O'Keefe in Wisconsin Lawyer September 2008 on blogging as a means of marketing a law practice.

Also in this issue, On your mark, get set, Blog!, by Jon Groth and Rob Teuber, on how to do it.

This Week in Liberal Judicial Activism: Week of September 15, 2008

Ed Whelan at Bench Memos.

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


P.S. (via Matthew J. Franck at Bench Memos)

As it was written in 1973, Roe v. Wade was far from a model of legal reasoning, and conservatives have been correct to criticize it. The court failed to root the abortion right in either the text of the Constitution or its own precedents. --Cass Sunstein

Of beer and bikers

The Lexington column in The Economist on Wisconsin as a swing state

Court of Appeals opinions week of September 8, 2008

(linked from post title)


Privacy Interests in Extremis, by Michael K. McChrystal, Marquette University Law School Faculty Blog, September 13, 2008, on State v. Johnson (2007AP1485-CR September 11, 2008)


Secret sex tape can’t be used, court says: Man accused of assault of wife in coma, by Marie Rohde, Milwaukee Journal Sentinel, September 12, 2008, on State v. Johnson (2007AP1485-CR September 11, 2008)


Agile driver's conviction reversed, by Marie Rohde, Proof and Hearsay, on State v. Ross (2008AP457-CR September 9, 2008)


Wisconsin Law Journal current case digests

Torture and Taking the Fifth

Jonathan Mahler in tomorrow's New York Times reviews Is There a Right to Remain Silent: Coercive Interrogation and the Fifth Amendment After 9/11, by Alan M. Dershowitz.

Dershowitz acknowledges that the precise language of the [fifth] amendment — “No person shall be . . . compelled in any criminal case to be a witness against himself” — doesn’t explicitly create a right to remain silent. But his generosity toward Thomas [Justice Thomas's opinion in Chavez v. Martinez, 538 U.S. 760 (2003)] ends there.

Why don't they hire lawyers?

Our State Bar's president Diane S. Diel in Wisconsin Lawyer September 2008 on the article Lawyers could go the way of the dodo, magazine suggests, by Janice Tibbetts. The magazine referred to in that article is the Canadian Bar Association [l'Association du Barreau canadien] National magazine which reported on the rising number of pro se litigants, especially in family court. President Diel says,

It is clear that the growth in the number of pro se litigants is partly attributable to the many accommodations made by the courts for them. The availability of self-help clinics, mandatory legal forms found online, and easy Internet research are among the factors contributing to the increase in the number of self-represented litigants. Those accommodations have combined to create the "commoditization" of legal services referenced by [National editor Jordan] Furlong.

Argument in 'State v. Johnson'

September 12, 2008 1:30 p.m. (2007AP1114-CR and 07AP1115-CR)

Review of the Court of Appeals

In an analysis applying Wis. Stat. § 973.155(1)(a) and State v. Ward, 153 Wis. 2d 743, 452 N.W.2d 158 (Ct. App. 1989), is a defendant entitled to sentence credit on concurrent sentences imposed at the same time only when the custody was “in connection with” both offenses?

Statements of issues are from a Table of Pending Cases


Oral argument September 12, 2008

Argument in 'Star Direct, Inc. v. Dal Pra'

September 12, 2008 10:45 a.m. (2007AP617)

Review of the Court of Appeals

Were non-compete clauses in an employment contract divisible and enforceable under Wis. Stat. § 103.465 and Mutual Service Casualty Insurance Co. v. Brass, 2001 WI App 92, 242 Wis.2d 733, 625 N.W.2d 648?

Can the analyses for determining the enforceability of non-compete clauses in employment contracts in Mutual Service Casualty Insurance Co. v. Brass, 2001 WI App 92, 242 Wis.2d 733, 625 N.W.2d 648 and Streiff v. American Family Mut. Ins. Co., 118 Wis. 2d 602, 613 – 15, 348 N.W.2d 505 (1984) be reconciled?

Statements of issues are from a Table of Pending Cases


Argument audio September 12, 2008

Argument in 'State v. Carter'

September 12, 2008 9:45 a.m. (2006AP1811-CR)

Review of the Court of Appeals

Is a defendant who is arrested in another state on both a violation of the other state’s criminal law and a Wisconsin-issued fugitive warrant based on pending criminal charges entitled to sentence credit on a concurrent sentence for the time spent in custody in the other state after arrest and before sentencing on the other state’s conviction?

Statements of issues are from a Table of Pending Cases


Argument audio September 12, 2008

Killing talk radio

Brian C. Anderson and Adam D. Thierer in The New Criterion, September 2008

Fairness Doctrine challenges didn’t have to win to have an effect. In 1981, [Jesse] Walker points out, the Milwaukee mayor Henry Maier called in the FCC after a local TV station blasted his administration in editorials. The station won in both the FCC and, later, the courts, but it had to shell out considerable legal fees.

Centennial Symposium: Origins of Marquette Law School

Matthew J. Parlow at the MULFblog on yesterday's first event in the series

celebrating the 100th anniversary of Marquette University’s acquisition of the Milwaukee Law School and the Milwaukee University Law School.

Argument in 'County of Dane v. Labor and Industry Review Commission'

September 10, 2008 1:30 p.m. (2006AP2695)

Review of the Court of Appeals

What level of judicial deference should be accorded an agency’s statutory interpretation (concerning Wis. Stat. § 102.56 (1) “disfigurement”) where the agency reverses its long-standing interpretation and implements a new interpretation?

Statements of issues are from a Table of Pending Cases

Argument in 'Godoy v. E.I. du Pont de Nemours and Company'

September 10, 2008 10:45 a.m. (2006AP2670)

Review of the Court of Appeals

Does a complaint in a products liability case sufficiently allege that white lead carbonate pigment is defectively designed where the injury-causing lead is a prominent ingredient in the paint pigment?

Statements of issues are from a Table of Pending Cases

State by State Breakdown: Wisconsin, Understanding Lead Pigment Litigation

Argument audio September 10, 2008

Argument in 'D.L. Anderson's Lakeside Leisure Co., Inc. v. Anderson'

September 10, 2008 9:45 a.m. (2007AP46)

Review of the Court of Appeals

Petitioner’s stated issues:

Where a tradename owner can show intentional infringement by establishing a likelihood of confusion and secondary meaning, and can show a measurable value to the tradename/goodwill, may damages be awarded for diminished goodwill based on the alleged infringer’s use of that goodwill without showing specific proof of lost profits or sales?

Where a tradename owner has shown infringement, but at most nominal damages, are punitive damages permissible under an extension of Jacque v. Steenberg Homes, Inc., 209 Wis. 2d 605, 563 N.W.2d 154 (1997)?

If a contract allows recovery of attorney fees if the Plaintiff obtains a monetary judgment, is the Plaintiff entitled to a full award of attorney fees on all claims when monetary damages are recovered on only one claim in a common action, and does the award of costs on an injunction constitute a “monetary judgment.”

Cross-Petitioner’s stated issues:

In a breach of covenant to compete claim, is evidence of gross sales without establishing lost profits sufficient to uphold an award of damages?

Is a covenant not to compete breached where a defendant is not engaged in businesses that are in competition with plaintiff’s business?

Is there trademark infringement where a person’s own name is used in a way that is not restricted by contract?

Is an injunction that prohibits a defendant from engaging in activities that would not violate a covenant not to compete overly broad?

Statements of issues are from a Table of Pending Cases


Argument audio September 10, 2008

Supreme Court appoints two new chief judges

At the Wisconsin Court System,

In [the First Judicial District, which includes only the County of] Milwaukee, Deputy Chief Judge Jeffrey A. Kremers was appointed to succeed Chief Judge Kitty K. Brennan, who recently was appointed to the Court of Appeals.

...

...[Marathon County Circuit] Judge Gregory E. Grau was appointed to succeed Chief Judge Dorothy L. Bain...

in the Ninth Judicial District, which includes

the circuit courts in Florence, Forest, Iron, Langlade, Lincoln, Marathon, Menominee, Oneida, Price, Shawano, Taylor and Vilas counties.

Update: Kremers new chief: Kremers named Milwaukee chief judge, by Jack Zemlicka, Wisconsin Law Journal, September 8, 2008

What Second Amendment?

I'm afraid D.C. v. Heller will not be followed in the lower courts. Check out this nonsense, upholding the constitutionality of the federal statute criminalizing the possession of firearms by anyone with a misdemeanor domestic violence conviction.

Although the statute did not become law until the mid-90s, it somehow qualifies as a "longstanding" ban comparable to that for felons and those who have been found mentally ill.

Argument in 'Plastics Engineering Co. v. Liberty Mutual Ins. Co.'

September 9, 2008 2:00 p.m. (2008AP333-CQ)

Certification from the Seventh Circuit

What constitutes an “occurrence” in an insurance contract when exposure injuries are sustained by numerous individuals, at varying geographical locations, over many years?

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

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

Statements of issues are from a Table of Pending Cases


Argument audio

Paul Clement "Supreme Court Review" September 8, 2008

Paul Clement will present a review of the most recent term of the United States Supreme Court at this year's Constitution Day celebration luncheon, Monday, September 8, 2008, 12 o’clock Noon, at the Milwaukee Athletic Club, 758 North Broadway.

Mr. Clement is a former Solicitor General of the United States, Visiting Professor at the Georgetown University Law Center, and Senior Fellow at the Center's Supreme Court Institute.

Reservations may be made by email and sending $15.00 to: Federalist Society, c/o Dan Kelly, Suite 2100, 1000 North Water Street, Milwaukee, Wisconsin 53201, for receipt on or before September 4, 2008. There will be a $20.00 charge at the door for those without reservations. Seating is limited. Refunds cannot be given to those who choose not to attend.

Mr. Clement has been our chapter's most-often-featured speaker, presenting a Supreme Court review at our September 17, 2007, September 25, 2006, September 13, 2005, September 16, 2004, and May 9, 2002 events. He also was a panelist at the February 23, 2006 Rehnquist retrospective.

Presented by the Milwaukee Lawyers Chapter.

This Week in Liberal Judicial Activism: Week of September 8, 2008

Ed Whelan at Bench Memos.

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

Criminal justice and mental illness

Crocker Stephenson at Proof and Hearsay on the Council of State Governments selecting Wisconsin to participate in a program on improving how law enforcement and courts deal with the mentally ill.

Called the "Chief Justices' Criminal Justice/Mental Health Leadership Initiative," Wisconsin Supreme Court Justice Shirley S. Ambrahamson will convene and chair a statewide task force of criminal justice and mental health professionals.

Update: At the Wisconsin Court System, Mental-health initiative aims to improve criminal justice system

BBE petitions for electronic CLE reporting

The Petition was filed on August 28, 2008 by John Kosobucki, Director, Board of Bar Examiners.

Lawyers must report their compliance with continuing legal education requirements every two years and, if they do not comply and report timely, must pay the late fee set out in SCR 31.03(2). Under existing SCR Chapter 31, these reports must be made by transmitting paper reports to the BBE offices. Late payments must be made by check or in cash.

A web-based reporting and payment system would be more efficient for the board and, more importantly, for reporting lawyers. The board, therefore, asks the Court to adopt the proposed amendments to SCR 31.01 and SCR 31.03, and to direct the CCAP and the Court’s fiscal officer to assist in implementing this Electronic CLE Reporting System as soon as it is conveniently possible.

In the Matter of the Petition for Amendment of Supreme Court Rules (SCR) 31.01 and 31.03 Relating to the Electronic Filing of Continuing Legal education (CLE) Reports (08-23)

BBE petitions for electronic application signatures and payment

The Petition was filed with the Wisconsin Supreme Court on August 28, 2008 by John Kosobucki, Director, Board of Bar Examiners.

Applicants for admission to the Wisconsin Bar can download application forms from the World Wide Web and can complete them on-line. However, for lack of a system for electronic signatures and payment, applicants must then print their applications and submit them to the board on paper. A web-based system will be more convenient both for applicants and the board. The board, therefore, asks the Court to adopt the proposed amendments to SCR 40.01 and 40.14, and to direct the CCAP and the Court’s fiscal officer to assist in implementing this Electronic Application System as soon as conveniently possible.

In the Matter of the Petition for Amendment of Supreme Court Rules (SCR) 40.01 and 40.14 Relating to the Electronic Filing of Applications for Admission to the Bar and Payment of the Related Fees (08-22)

Yoo's Labour's Lost

Yoo's Labour's Lost: Jack Goldsmith's Ninemonth Saga in the Office of Legal Counsel, by Douglas W. Kmiec, Harvard Journal of Law & Public Policy, Vol. 31, No. 2, 795 (Spring 2008), review of The Terror Presidency: Law and Judgment Inside the Bush Administration, by Jack Goldsmith (2007)

If there is one theme that runs through Professor Goldsmith’s book, it is his professed doubt about the wisdom of what he terms the “legalization of war.” There is much wisdom in Professor Goldsmith’s observation, even though it sits uneasily with two other features of the book: (1) Professor Goldsmith’s willingness to assail the legal analysis of his predecessors (most notably Professor [John] Yoo) and (2) his own obvious contribution to the legalization of war, both by that criticism and by his selfportrayal as the vindicator of law over politics. (p. 818)

Mr. Kmiec was the featured speaker at our chapter's November 10, 2006 and January 12, 1995 events.

Analysis: 'J. G. v. Wangard'

[Terry J. Booth on J. G. v. Wangard, 2008 WI 99 (2006AP818)]

A minor was sexually assaulted by Steven Wangard. The minor and her mother sued Steven and his wife, Deborah, for the assaults. Deborah was alleged to have been negligent for failing to prevent Steven’s intentional sexual assault of the minor.

Deborah sought coverage under two homeowners insurance policies. The insurers argued that coverage was precluded for both Steven and Deborah by the policies’ intentional acts exclusions. Those exclusions provided, in relevant part:

Intentional acts. We do not cover any damages arising out of an act intended by any covered person to cause personal injury or property damage, even if the injury or damage is of a different degree or type than actually intended or expected.

The policies also included language under the heading “Application of coverage” that reads: “Coverage applies separately to each covered person.”

The court found Jessica M.F. v. Liberty Mutual Fire Insurance Co., 209 Wis. 2d 42, 561 N.W.2d 787 (Ct. App. 1997) and Taryn E.F. v. Joshua M.C., 178 Wis. 2d 719, 505 N.W.2d 418 (Ct. App. 1993) to be persuasive. It held that the intentional injury exclusion provision excluding coverage for damages caused intentionally by “any insured” excluded coverage for all insureds, regardless of whether their liability was based on an intentional act.

PRINCIPLES ESTABLISHED AND FUTURE CONSIDERATIONS

1. The use of the word “any” in the context of the intentional injury exclusion is legally distinguishable from such words as “an” or “the.”

2. The severability clause was found to not be inconsistent with the court’s interpretation and application of the intentional injury exclusion.

3. Justice Bradley’s dissenting opinion states that the majority’s opinion is limited to cases involving the intentional act of sexual assault. Only a cursory basis was given for that statement. Arguably, the reasoning that was the basis of the majority’s opinion is equally applicable to any intentional act.

4. Justice Bradley’s dissenting opinion finds the intentional injury exclusion and the severability clause to be contradictory. It then suggests that the contextual ambiguity created by those two policy provisions requires that the policy be automatically construed in favor of coverage. The majority’s approach, in contrast, was to first attempt to reconcile the potential ambiguity by evaluating the reasonable expectations of the insured.

[The preceding is from Mr. Booth's August 14, 2008 presentation at the Civil Trial of Wisconsin Summer Conference, Wisconsin Dells, and is used with his permission.]

State Court Docket Watch Summer 2008

Published by the Federalist Society "In an effort to increase dialogue about state court jurisprudence", this issue includes

California: In re Marriage Cases by John Shu

Washington Supreme Court Round-Up: 2007 Highlights, by Andrew Cook

Ohio Supreme Court Upholds Civil Liability Reforms, by David J. Owsiany

Connecticut Supreme Court Reverses $41 Million Judgment in Construction Injury Case, by Karen Torre

Oklahoma: The Inverted Federalism of Grider v. Compaq, by Theodore H. Frank

Minnesota: Vacation Question is Settled, But Contract Issue Surprises Employers, by Samuel W. Diehl

Washington State Supreme Court Strikes Down Campaign Restrictions, by Seth Cooper

Supreme Court accepts six new cases

The six cases in which review was granted or certification accepted were each the subject of a post on August 24, 2008, below. This announcement from the Wisconsin Court System also includes a listing of cases the court will not take up.

Court of Appeals opinions week of September 1, 2008

(linked from post title)


Wisconsin Law Journal current case digests

Obama Met With Fox News Executives

Howard Kurtz reports from St. Paul in the Washington Post

After resisting invitations for months, [Senator Barack] Obama now plans to appear on Bill O'Reilly's prime-time Fox program on Thursday, the night that [Senator] John McCain delivers his acceptance speech at the Republican convention here.

(via Drudge Report)

Do not limit political speech

An editorial in yesterday's Beloit Daily News on possible proposals by the Government Accountability Board of regulations for issue ads.

(via The Wheeler Report)

Free online legal research is coming November 1 to State Bar of Wisconsin members

At WisBar

With this new benefit, you will have 24/7 access to free, online legal research through Fastcase’s national database of caselaw, statutes, administrative codes, and court rules.

State Supreme Court refuses to hear appeal in priest abuse case

Steve Schultze reports in the Milwaukee Journal Sentinel.

[David] Schauer initially lost his case in Circuit Court but won a review by the state Court of Appeals.

Schauer v. Diocese of Green Bay, 2004 WI App 180, affirmed the Circuit Court dismissal but remanded on the issue of whether the diocese was equitably estopped from asserting the statute of limitations defense. The Circuit Court then ruled the defense was not estopped, and dismissed the case. The Court of Appeals affirmed the dismissal in an unpublished decision, Schauer v. Diocese of Green Bay.

The diocese appealed that ruling to the Supreme Court.

Actually it was Schauer who petitioned for review, which was denied.

Legal advice

The Economist, August 21, 2008, reported on publicly traded law firms.

Slater & Gordon, an Australian law firm that went public in May 2007, used the proceeds to go on an acquisition spree, swallowing up six smaller rivals within a year. The firm’s share price has risen 50% since the IPO.

The firm's website includes information for investors.

Integration of the Bar

The recent discussion of a survey of State Bar members on mandatory or voluntary membership (see Asking the question) recalls this from Chapter Fourteen of A History of the Organized Bar in Wisconsin.

On July 7, 1978, 476 active members of the State Bar petitioned the Board of Governors for a referendum presenting three questions pertaining to compulsory membership and dues. The Board declined to honor this petition, and instead on Nov. 3 resolved to present to the members of the State Bar, by an advisory poll or referendum, the question: 'Do you favor continuation of the State Bar of Wisconsin as an integrated bar?'

The Bar advised the court that it had resolved to conduct an advisory poll, using the question quoted above, and asked the court to allow the poll to proceed.

On Jan. 9, 1979, the court allowed the advisory poll to proceed, but declined to order the referendum requested by the petitioners on July 7. In denying the mandamus relief requested, the court said that the ultimate decision on integration was for the court, not members of the bar, and the questions framed by the petitioners did not raise matters of association policy which must be put to a vote if requested by 300 members. A concurring opinion noted the recent review of the integration question by the Parnell committee and suggested that a vote would not be particularly helpful at that time.

Subsequently, on Jan. 23, 1979, the Board of Governors reversed its action and decided not to poll the members.

The petitioners of July 7 then took their own poll, mailing the same question as the Bar had proposed to 9,319 members. Over 51 percent of those polled responded, with over 60 percent of those responding voting against continuation of the State Bar as an integrated bar. The vote, tabulated by a CPA firm, was 2,820 against continuation and 1,892 in favor.

On May 8, 1979, the petitioners armed with the results of what they considered to be a favorable poll submitted the results to the court and asked it to forthwith discontinue the State Bar as an integrated bar. ...

The matter was again decided in favor of the State Bar on Jan. 8, 1980.

Analysis: 'Estate of Sustache v. American Family Mutual Ins. Co.'

[Terry J. Booth on Estate of Sustache v. American Family Mutual Ins. Co., 2008 WI 87 (2006AP939)]

Jeffery Matthews (Matthews) punched James Sustache (Sustache) in the face, causing him to fall to the ground and sustain severe injuries that ultimately led to his death. Sustache’s estate and his parents sued Matthews and others. Among the claims asserted was one for battery. In response, both Matthews and his liability insurer, American Family Mutual Insurance Company (American Family) alleged, along with other defenses, the affirmative defense of self defense.

American Family provided Matthews with a defense under a reservation of rights. American Family then moved for summary judgment dismissal from its duty to indemnify and defend Matthew because the plaintiffs’ damages were not caused by an “occurrence” covered by the policy, and because the policy excluded coverage for intentional injury. Matthews opposed American Family’s motion, arguing that under Berg v. Fall, 138 Wis. 2d 115, 405 N.W.2d 701 (Ct. App. 1987), American Family had an obligation to defend Matthews because the affirmative defense of self defense had been alleged.

The trial court granted American Family’s motion, finding that Berg had effectively been overruled by Doyle v. Engelke, 219 Wis. 2d 277, 580 N.W.2d 245 (1998) and Smith v. Katz, 226 Wis. 2d 798, 595 N.W.2d 345 (1999). The court of appeals agreed with the trial court, and affirmed its holding. In doing so, it declared that the duty to defend was controlled by the four corners rule, and that there were no exceptions to the four corners rule unless and until the supreme court recognized such exceptions.

The supreme court affirmed the decisions of the trial court and court of appeals. It did so, however, on grounds different from the grounds relied upon by the trial court and court of appeals. In particular, the court declared that the applicability of the four corners rule was really not the controlling issue. Instead, the court declared that because the duty to indemnify had been determined, and because a duty to indemnify had been found not to exist, there was no longer a duty to defend Matthews.

The court did not rule directly on the continued viability of Berg. However, as a practical matter, Berg will be circumvented and rendered a non-factor when a determination is made that a duty to indemnify does not exist. Since, generally, self defense is a privileged act for which liability does not attach, an assertion of self defense should not create a duty to indemnify.

PRINCIPLES ESTABLISHED AND FUTURE CONSIDERATIONS

1. Sustache provides a good outline of the interrelationship between the duty to indemnify and the duty to defend.

2. The four corners rule is the standard used to determine the initial duty to defend.

3. There is no duty to defend if there is no duty to indemnify.

4. When the duty to indemnify is resolved as a matter of law and fact, the duty to defend is controlled by that determination.

5. As a practical matter, Berg has been overruled. The supreme court did not consider the defense of self defense in determining whether there was a duty to indemnify. Because that defense was not a factor in determining the duty to indemnify, it cannot be a legal ground upon which a claim could be based under the four corners rule.

6. Mullins’ Cheese, Inc. v. Schumacher, No. 2007AP2920 (Ct. App. June 24, 2008), an unpublished court of appeals decision, appears to be inconsistent with the procedural framework reaffirmed by Sustache. Based on an application of the four corners rule, the court found that no duty to defend existed. The court then, however, remanded the case to the circuit court to determine if a duty to indemnify existed. That holding seems both procedurally and substantively inconsistent with Sustache. The duty to defend is broader than the duty to indemnify. In other words, the duty to defend is determined based on an evaluation of all possible claims that are includable within the scope of a claimant’s pleading, whether or not the actual facts when ultimately proven support those claims. The duty to indemnify is a subset of the duty to defend, consisting of the claims stated in the claimant’s pleading which are actually proven. Therefore, as stated in Sustache, there is a duty to defend only if there is a duty to indemnify.

7. Some intentional injury exclusions now expressly except acts done in self defense from the intentional injury exclusion with language such as the following: “This exclusion does not apply to bodily injury if the person acted with reasonable force to protect any person.” While the intentional injury exclusion in such policies probably will not exclude coverage for acts done in self defense, the insuring clause which includes an “occurrence” requirement may. It could be argued that the foregoing exception to the intentional injury exclusion could, however, create sufficient contextual ambiguity to override the “occurrence” requirement.

[The preceding is from Mr. Booth's August 14, 2008 presentation at the Civil Trial of Wisconsin Summer Conference, Wisconsin Dells, and is used with his permission.]

No issue preclusion for suppression motions

The court correctly holds that issue preclusion does not apply to a defendant's suppression motion. The reasoning, however, is faulty.

The court should have held so, only because this defendant had no opportunity to appeal the ruling. There's no reason why the doctrine should not apply to such hearings as a general rule.

Marquette University Law School Faculty Blog

Up since yesterday.

Dean Howard Eisenberg once said he wished faculty email software didn't have the immediate Send button. We hope Dean Kearney will find himself better disposed toward the blog Publish button.

Supreme Court arguments September 2008

September 9, 2008

2:00 p.m. Plastics Engineering Co. v. Liberty Mutual Ins. Co. (2008AP333-CQ)
Certification from the Seventh Circuit

What constitutes an “occurrence” in an insurance contract when exposure injuries are sustained by numerous individuals, at varying geographical locations, over many years?

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

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

September 10, 2008

9:45 a.m. D.L. Anderson's Lakeside Leisure Co., Inc. v. Anderson (2007AP46)
Review of the Court of Appeals

Petitioner’s stated issues:

Where a tradename owner can show intentional infringement by establishing a likelihood of confusion and secondary meaning, and can show a measurable value to the tradename/goodwill, may damages be awarded for diminished goodwill based on the alleged infringer’s use of that goodwill without showing specific proof of lost profits or sales?

Where a tradename owner has shown infringement, but at most nominal damages, are punitive damages permissible under an extension of Jacque v. Steenberg Homes, Inc., 209 Wis. 2d 605, 563 N.W.2d 154 (1997)?

If a contract allows recovery of attorney fees if the Plaintiff obtains a monetary judgment, is the Plaintiff entitled to a full award of attorney fees on all claims when monetary damages are recovered on only one claim in a common action, and does the award of costs on an injunction constitute a “monetary judgment.”

Cross-Petitioner’s stated issues:

In a breach of covenant to compete claim, is evidence of gross sales without establishing lost profits sufficient to uphold an award of damages?

Is a covenant not to compete breached where a defendant is not engaged in businesses that are in competition with plaintiff’s business?

Is there trademark infringement where a person’s own name is used in a way that is not restricted by contract?

Is an injunction that prohibits a defendant from engaging in activities that would not violate a covenant not to compete overly broad?

What’s in a business name? Parties contest evidence necessary to support trade name infringement award, by David Ziemer, Wisconsin Law Journal, September 17, 2008


10:45 a.m. Godoy v. E.I. du Pont de Nemours and Company (2006AP2670)
Review of the Court of Appeals

Does a complaint in a products liability case sufficiently allege that white lead carbonate pigment is defectively designed where the injury-causing lead is a prominent ingredient in the paint pigment?

1:30 p.m. County of Dane v. Labor and Industry Review Commission (2006AP2695)
Review of the Court of Appeals

What level of judicial deference should be accorded an agency’s statutory interpretation (concerning Wis. Stat. § 102.56 (1) “disfigurement”) where the agency reverses its long-standing interpretation and implements a new interpretation?

September 12, 2008

9:45 a.m. State v. Carter (2006AP1811-CR)
Review of the Court of Appeals

Is a defendant who is arrested in another state on both a violation of the other state’s criminal law and a Wisconsin-issued fugitive warrant based on pending criminal charges entitled to sentence credit on a concurrent sentence for the time spent in custody in the other state after arrest and before sentencing on the other state’s conviction?

10:45 a.m. Star Direct, Inc. v. Dal Pra (2007AP617)
Review of the Court of Appeals

Were non-compete clauses in an employment contract divisible and enforceable under Wis. Stat. § 103.465 and Mutual Service Casualty Insurance Co. v. Brass, 2001 WI App 92, 242 Wis.2d 733, 625 N.W.2d 648?

Can the analyses for determining the enforceability of non-compete clauses in employment contracts in Mutual Service Casualty Insurance Co. v. Brass, 2001 WI App 92, 242 Wis.2d 733, 625 N.W.2d 648 and Streiff v. American Family Mut. Ins. Co., 118 Wis. 2d 602, 613 – 15, 348 N.W.2d 505 (1984) be reconciled?

1:30 p.m. State v. Johnson (2007AP1114-CR and 07AP1115-CR)
Review of the Court of Appeals

In an analysis applying Wis. Stat. § 973.155(1)(a) and State v. Ward, 153 Wis. 2d 743, 452 N.W.2d 158 (Ct. App. 1989), is a defendant entitled to sentence credit on concurrent sentences imposed at the same time only when the custody was “in connection with” both offenses?

Statements of issues are from a Table of Pending Cases

This Week in Liberal Judicial Activism: Week of September 1, 2008

Ed Whelan at Bench Memos.

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

Court of Appeals arguments September 2008

September 17, 2008 Wisconsin Court of Appeals at Dist. I, 633 W. Wisconsin Ave., #1400, Milwaukee

9:30 a.m. State v. Carroll (2007AP1378-CR)

11:00 a.m. City of Milwaukee v. NL Industries, Inc. (2007AP2873)