Blunt cigars

Sometimes a cigar is just a cigar ... except in Wisconsin. Here, it is probable cause for drug trafficking.

Supreme Court arguments and hearings November 2008

November 4, 2008 Oral argument [html | pdf]


9:45 a.m. Phelps v. Physicians Ins. Co. of Wisconsin, Inc. (2006AP2599)
Review of the Court of Appeals

Is the alleged tortfeasor a “borrowed employee” under Seaman Body Corp. v. Industrial Commission, 204 Wis. 157, 235 N.W. 433 (1931) test?

Does Bartholomew v. Wis. Pats. Comp. Fund, 2006 WI 91, 293 Wis. 2d 38, 717 N.W.2d 216 allow an award of non-economic damages under the facts of Phelps v. Physicians Ins. Co. of Wisconsin, 2005 WI 85, 282 Wis. 2d 69, 681 N.W.2d 571?

Whether Finegan v. Wis. Patients Comp. Fund, 2003 WI 98, 263 Wis. 2d 574, 666 N.W.2d 797 and Pierce v. Phys. Ins. Co. of Wis., Inc., 2005 WI 14, 278 Wis. 2d 82, 692 N.W.2d 558 preclude an award for bystander’s emotional distress when the alleged negligent conduct is attenuated in time from the event giving rise to the distress.

10:45 a.m. Loth v. City of Milwaukee (2007AP587)
Review of the Court of Appeals

Whether a governmental entity may, by resolution or ordinance, alter benefits that it had previously promised to employees who had accumulated sufficient work time but had not yet reached the age of retirement.

1:30 p.m. De La Trinidad v. Capitol Indemnity Corporation (2007AP45)
Review of the Court of Appeals

Whether the defendant corporation is a “nonprofit organization” as defined in Wis. Stat. § 895.52(1)(c) and Bethke v. Lauderdale of La Crosse, Inc., 2000 WI App 107, 235 Wis. 2d 103, 612 N.W.2d 332 (petition for review denied) and Szarzynski v. YMCA, Camp Minikani, 184 Wis. 2d 875, 888, 517 N.W.2d 135 (1994) for purposes of determining immunity.

November 5, 2008 Oral argument [html | pdf]


09:45 a.m. Froedtert Mem. Lutheran Hospital, Inc. v. Nat’l. States Ins. Co. (2007AP934)
Review of the Court of Appeals

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

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

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

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

10:45 a.m. State v. Romero (2007AP1139-CR)
Review of the Court of Appeals

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

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

1:30 p.m. State v. Warbelton (2007AP105-CR)
Review of the Court of Appeals

Whether a jury should hear evidence that the defendant had a “previous conviction for a violent crime” and be instructed to make a finding on that matter during trial for stalking while having “a previous conviction for a violent crime” under Wis. Stat. § 940.32(2) and (2m)(a).

November 6, 2008 Oral argument [html | pdf]


9:45 a.m. State v. Grady (2007AP672-CR)
Review of the Court of Appeals

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

Did the trial court err by not suppressing the defendant’s second statement as being a product of the first statement as an alleged continuing violation of Grady's constitutional rights?

10:45 a.m. State v. Kramer (2007AP1834-CR)
Review of the Court of Appeals

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

Was the stop of defendant's vehicle justified by the community caretaker exception to the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Wisconsin Constitution?

Is the community caretaker analysis formulated in State v. Anderson, 142 Wis. 2d 162, 417 N.W.2d 411 (Ct. App. 1987) consistent with Fourth Amendment search and seizure principles?

1:30 p.m. Krier v. Vilione {2006AP1573 and 2006AP2290)
Review of the Court of Appeals

Are the defendants entitled to summary judgment on claims based entirely on alleged injuries to a separate non-party corporation in which none of the plaintiffs have any ownership interest?

November 10, 2008 Rule hearings

9:45 a.m. In the matter of the petitions to amend SCRs 31.10, 31.11 relating to notices of noncompliance with CLE requirements and reinstatement, SCR 31.13(2) relating to the manner of filing documents relating to CLE requirements, SCR 40.14 relating to the filing of applications for admission and the fee for late application under the diploma privilege (08-05, 08-06, and 08-14) Public Hearing

Hearing on CLE late fees and reinstatement November 10, 2008

Proposal for application for admission filed as of mailing but increased late fees

Rules Petitions filed April 1, 2008


Update: November 18, 2008 9:30 a.m. Hearing set on admitting lawyers upon proof of practice elsewhere, and Hearing set on trust accounts and fiduciary accounts

Case Dispositions of Petitions July-August 2008, 2008 WI 122

Case Dispositions of Petitions to Wisconsin Supreme Court Decided July 1, 2008 to August 31, 2008, posted October 28, 2008 [html | pdf].

Synopsis of 'State v. Hoppe'

(2007AP905-CR) See Review granted in 'State v. Hoppe'.

This 2002 criminal case examines the requirements of a plea colloquy and the extent to which a judge may rely on the contents of a plea questionnaire and waiver of rights form and the extent to which the judge just must question the defendant personally on the record.

Some background: Christopher S. Hoppe was charged with sexual assault of a child, physical abuse of a child and multiple counts of possessing child pornography. He reached a plea agreement with the state whereby he would plead guilty to twelve counts of child pornography, while the remaining counts of child pornography, sexual assault of a child and physical abuse of a child would be dismissed and read in. The court sentenced Hoppe to consecutive terms of two years of initial confinement and three years of extended supervision, for a total sentence of 12 years of initial confinement and 18 years of extended supervision.

After sentencing, Hoppe sought to withdraw his guilty pleas, contending that the plea colloquy was defective because the circuit court had merely asked whether he had gone over the plea questionnaire and waiver of rights form with his attorneys and whether he understood the document. Hoppe also claimed that during a short pre-plea meeting with one of his attorneys, he did not personally read the form. He said he was unable to see it as it was read by the attorney, who was seated across the table. In addition, Hoppe said he could not have read the form because he did not have his reading glasses, and even if he did, he would not have understood the substance of the form due to the effect of medication he was taking after hernia surgery. Hoppe also claims his counsel made a "near-promise" that he would receive no more than two years in prison. The court of appeals affirmed the circuit court's denial of Hoppe's plea withdrawal motion.

The court of appeals held that the circuit court could rely on the plea questionnaire and waiver of rights form to meet the requirements of a plea colloquy because such a document is an intrinsic part of the plea colloquy. From Walworth County.

Review granted in 'State v. Hoppe'

The Wisconsin Supreme Court on October 15, 2008 granted review in this case (2007AP905-CR) on the issue:

Is a plea questionnaire and waiver of rights form intrinsic to the plea colloquy such that a defendant’s admission that he read and understood the form satisfies the court’s plea-taking requirements of Wis. Stat. § 971.08 and State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986)?

Decision in 'Office of Lawyer Regulation v. Tully' 2008 WI 121

The Wisconsin Supreme Court yesterday issued its decision in this disciplinary matter (2008AP1900-D) granting the OLR's request for a three year suspension as reciprocal discipline identical to that imposed by the Illinois Supreme Court.

Decision in 'Office of Lawyer Regulation v. Hughes' 2008 WI 120

The Wisconsin Supreme Court on October 14, 2008 issued its decision in this disciplinary matter (2007AP2546-D) accepting the referee's recommendation of a three year suspension.

Decision in 'Office of Lawyer Regulation v. Burke' 2008 WI 119

The Wisconsin Supreme Court on October 9, 2008 issued its decision in this disciplinary matter (2006AP432-D) accepting the referee's recommended reinstatement.
Justice Prosser did not participate.

Court of Appeals opinions week of October 27, 2008

(linked from post title)


Wisconsin Law Journal current case digests

Review of 'The Invisible Consitution'

Tara McKelvey in Nonfiction Chronicle in The New York Times, September 26, 2008, reviews The Invisible Constitution by Laurence H. Tribe.

Tribe does not seem, however, to cite any new invisible powers but rather segues into a confusing discussion of the six “modes of construction” of the invisible Constitution, including the “geodesic” and the “gyroscopic.” The six modes all start with “g” because, Tribe says, he likes alliteration, “even at some loss in transparency of meaning.” With or without “g,” the various modes, and the baffling illustrations accompanying them, add little to the discussion.

Hearing on appellate e-filing

October 28, 2008 9:30 a.m. Public Hearing In the matter of the petitions to create Wis. Stat. ss. (Rule) 809.19, 809.32, 80.62, and 809.80 relating to the electronic filing of appellate briefs, no-merit reports, and petitions for review and responses (08-15 and 08-18)

State Bar Board of Governors supports electronic filing in appellate court and opposes BBE’s proposed conditional admission petition, among other actions, Inside the Bar, October 2008

Appellate Court E-Filing on the Horizon, by David R. Schanker, Wisconsin Lawyer, September 2008

Hearing on appellate e-filing October 28, 2008

Electronic filing of Petitions for Review and Responses proposed

Court of Appeals proposes requiring electronic filing of appellate briefs

Conference on defining the practice of law

October 28, 2008 9:30 a.m. Open Administrative Conference In the matter of the Definition of the Practice of Law and the Administration of a Rule Defining the Practice of Law (07-09)

Comments filed August 7, 2008

Revised draft by State Bar of Wisconsin, August 4, 2008

Court conference on UPL October 28, 2008

UPL Petition held in abeyance

July 9, 2007 a.m. and July 9, 2007 p.m. hearing audio

Petition filed June 19, 2007 by Thomas J. Basting, Sr., President-Elect, State Bar of Wisconsin, attachment 1, attachment 2

This Week in Liberal Judicial Activism: Week of October 27, 2008

Ed Whelan at Bench Memos on

Denying the facts and defying common sense:

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

This Week in Liberal Judicial Activism: Week of October 20, 2008

While I was away, Ed Whelan at Bench Memos on

Bazelon’s disregard for precedent, death by racial quota, the mystery of a pointed gun, the Declaration of Independence as a same-sex-marriage manifesto, and more:

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

This Week in Liberal Judicial Activism: Week of October 13, 2008

While I was away, Ed Whelan at Bench Memos on

Skelly Wright on drugs, Brennan’s recess appointment, and Douglas:

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

The rise of the Obamacons

The Lexington column in The Economist, October 23, 2008, on self-described conservatives who have declared an intention to vote for the Democratic Party nominee for President.

Synopsis of '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), see Review granted in 'Coulee Catholic Schools v. Labor and Industry Review Commission'.

This age-discrimination case examines the interplay of the First Amendment's guarantees of religious freedom and the state's laws prohibiting discrimination.

The Supreme Court previously refused certification by the District IV Court of Appeals, which subsequently affirmed a decision denying Coulee Catholic Schools’ (CCS) motion to dismiss the age discrimination complaint of Wendy Ostlund, a former first-grade teacher.

Some background: Ostlund was a teacher at St. Patrick's Elementary School in Onalaska from 1974 until the end of the 2001-02 school year. In March 2002, St. Patrick's, a part of CCS, opted not to renew the teaching contract of Ostlund and eight other teachers for the 2002-03 school year. St. Patrick's described this situation as a "reduction in force" related to declining enrollments. St. Patrick's apparently explained that it looked at whether a teacher possessed an elementary education degree and teaching certification for the grade they taught as a criterion for determining which teachers' contracts would not be renewed.

In response to Ostlund's claim that she had been non-renewed because she was over 50 years of age, St. Patrick's noted that eight teachers over age 40 who possessed a certification had been renewed, and a teacher older than Ostlund had been renewed because that teacher possessed a certification. Four teachers younger than age 40 were not renewed because they, like Ostlund, lacked a certification. CCS has not alleged that its non-renewal of Ostlund's teaching contract occurred due to religious differences or her failure to abide by or promulgate Roman Catholic teachings.

Ostlund filed an age discrimination claim under the Wisconsin Fair Employment Act (WFEA) with the Equal Rights Division of the Department of Workforce Development (DWD). The DWD initially determined that there was not probable cause to believe that St. Patrick's had engaged in age discrimination against Ostlund. Ostlund appealed, and after a detour to the circuit court, the agency was ordered to consider whether it could proceed with Ostlund's complaint, i.e., whether the First Amendment precluded governmental inquiry because Ostlund's position was "ministerial" or "ecclesiastical."

An administrative law judge (ALJ) determined that the DWD could proceed to the merits of Ostlund's complaint because her teaching position was not ministerial. The ALJ's decision focused primarily on the fact that the majority of Ostlund's time during her work day involved teaching subjects that the ALJ found to be non-religious.

CCS petitioned for review of the ALJ's decision to the Labor and Industry Review Commission (LIRC). The LIRC agreed with the ALJ's findings of fact and conclusions of law and adopted them as its own.

The circuit court also agreed that Ostlund's position was not a ministerial one because her primary job duty was to teach non-religious subjects, and that therefore the First Amendment did not prevent further adjudication of her age discrimination claim.

On appeal, the Court of Appeals acknowledged that the "primary duties" test it had set forth in Jocz v. LIRC, 196 Wis. 2d 273, 538 N.W.2d 355 (Ct. App. 1995), was not sufficient in its current form to answer whether a particular position or category of positions were ministerial. It expanded that test to include consideration of the criteria used by the religious organization in hiring the plaintiff employee (i.e., did the individual need to have certain religious degrees or qualifications to be hired).

The Court of Appeals also refused to grant substantial deference to the religious organization's pronouncements regarding the ministerial nature of a particular position. It concluded that although a religious elementary school may be important to the mission of the church, that fact did not make its teachers ministers who were not covered by state anti-discrimination laws. It further determined, however, that when a religious organization claims that an employment position at issue in a discrimination claim is a ministerial one, administrative agencies and reviewing courts may not consider the organization's reasons for the employment action it took. Ultimately, the Court of Appeals concluded that the types of activities that fall within the ministerial exception, teaching religion classes, leading prayers, and participating in religious services, were not "the primary part of [Ostlund's] work day" nor "the primary focus either of the job description or job evaluation." In addition, the court stated that there were not any religious criteria that Ostlund had to satisfy to obtain the job, and that while she was obligated to hold a basic and advanced certification in religion, her religious duties were not her primary duties. In the end the court stated that the balance of free exercise rights and the state's discrimination policy tipped in favor of proceeding with the adjudication of Ostlund's discrimination claim.

A decision by the Supreme Court could help clarify the interplay between the religious provisions of the First Amendment and Wisconsin's employment laws and will have a statewide impact on the state's citizens who are members of religious organizations and the individuals who are employed by those organizations. From La Crosse County.

Remember the Best Evidence Rule

When the police lose a videotape of a motorist stop and arrest, it may not violate due process, but it should certainly implicate the best evidence rule.

How to Read the Constitution

From The Wall Street Journal, October 20, 2008, an excerpt from Supreme Court Justice Clarence Thomas's Wriston Lecture to the Manhattan Institute last Thursday.

As I have traveled across the country, I have been astounded just how many of our fellow citizens feel strongly about their constitutional rights but have no idea what they are, or for that matter, what the Constitution says. I am not suggesting that they become Constitutional scholars -- whatever that means. I am suggesting, however, that if one feels strongly about his or her rights, it does make sense to know generally what the Constitution says about them. It is at least as easy to understand as a cell phone contract -- and vastly more important.

(via Crankycon at Southern Appeal)

Synopsis of '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), see Review granted in 'Estate of Genrich v. OHIC Insurance Company'.

This medical malpractice suit, brought by the estate of Robert V. Genrich and Kathy Genrich, asks the Supreme Court to review three issues related to the statute of limitations.
- Whether a Supreme Court decision regarding the medical malpractice statute of limitations controls where it conflicts with a Court of Appeals decision.
- Whether the statute of limitations for a medical malpractice action begins to run only after a definite irreversible injury.
- Whether the statute of limitations for wrongful death based on medical malpractice runs less than three years from the date of death.

On July 23, 2003, Robert Genrich underwent an abdominal surgical procedure at Meriter Hospital to remedy a perforated duodenal ulcer. The surgeons and/or nurses unknowingly left a sponge inside Robert's abdomen. Within a short time after the surgery, Robert showed signs of an infection, including a fever. The doctors were initially unable to figure out the cause of the infection or to treat it successfully.

Ultimately, the health care providers deduced that a sponge must have been left inside Robert's abdomen. On Aug. 8, 2003, a second surgery occurred during which the sponge was removed. Despite the removal of the sponge, Robert's infection continued to get worse and he died three days later, on Aug. 11, 2003.

Kathy Genrich subsequently retained an attorney in connection with making a claim against the relevant health care providers and the hospital. Meriter and its employees were covered by an insurance policy issued by OHIC Insurance Company. According to Kathy Genrich, an OHIC claims adjuster twice told her lawyer that the statute of limitations would expire on Aug. 13, 2006.

The parties were not able to resolve Kathy's claim. On Aug. 9, 2006, Kathy filed an action against Meriter, the health care providers and their insurers. The action included a claim for Robert's pain and suffering brought by the Estate, and a wrongful death claim brought by Kathy individually.

The parties continued settlement negotiations for several months after the filing of the lawsuit, but could not resolve their dispute. In October 2006, the defendants filed a motion to dismiss both the Estate's and Kathy's claims as time-barred under the statute of limitations. The circuit court granted the motion and dismissed the claims by both the Estate and Kathy Genrich, concluding that at the latest Robert Genrich suffered an injurious change when he was forced to undergo a second surgery on August 8, 2003, that would not have been necessary but for the negligence of the medical providers. Thus, because the action was not filed until August 9, 2006, the action was not timely. The circuit court did not draw any distinction between the Estate's survival claim and Kathy's wrongful death claim as to when the statute of limitations began to run.

The Court of Appeals treated the circuit court's decision as one granting summary judgment and affirmed in an unpublished decision.

On appeal, Kathy Genrich argued that her wrongful death claim could not have accrued until Robert's death, which occurred on Aug. 11, 2003. Thus, her complaint filed on Aug. 9, 2006, was timely.

A decision by the Supreme Court could clarify existing case law and the statute of limitations as they relate to wrongful death claims involving allegations of medical malpractice. From Columbia County.

Synopsis of '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), see Review granted in 'PRN Associates LLC v. Department of Administration'.

These consolidated cases arise from the procurement process for the Kenilworth building redevelopment project at UW-Milwaukee.

Some background: In October 2002, the University of Wisconsin System and UW-Milwaukee issued a request for proposals (RFP) from private contractors to renovate the building. Prism submitted the winning response. Before the state could begin contract negotiations with Prism, the UW System and the state building commission both had to approve Prism's response. The UW System gave its approval. UW-Milwaukee filed a request for state building commission approval, but the request was withdrawn before final action was taken when it became apparent there was no support for approval by the state building commission.

Prism unsuccessfully protested and appealed the decision to withdraw the request to the UW System. After UW-Milwaukee withdrew its request for state building commission approval, the building commission ordered that a second RFP be issued for the project. Prism submitted another response, but another contractor, WEAS Development, submitted the winning proposal. Both the UW System and the state Building Commission approved the WEAS proposal. On Feb. 3, 2005, the Wisconsin Department of Administration (DOA) sent a letter to Prism, advising that the contract would be awarded to WEAS. Prism protested the decision to award the contract to WEAS and appealed the denial of the protest to the DOA. The appeal was denied on June 6, 2005.

On July 6, 2005 Prism filed a petition for judicial review and a complaint for declaratory judgment in Ozaukee County Circuit Court. The declaratory judgment action was transferred to Dane County. The decision in that case is the subject of appeal in Case No. 2007AP751. The state filed a motion to dismiss the Ozaukee County case. On Sept. 21, 2006, the circuit court found Prism's claims were moot because Prism never sought an injunction that would have kept the project from going forward with WEAS and ordered the case dismissed. The dismissal order was entered on Oct. 17, 2006. The Dane County Circuit Court dismissed the declaratory judgment action against the DOA based on sovereign immunity grounds because the state did not consent to the suit.

Prism asks the Supreme Court to review the following three questions:
- Is the sole remedy of a proposer, wronged by the state in a state procurement, an injunction against letting the contract?
- Can the state be estopped from arguing that an injunction is the sole remedy of a wronged proposer?
- Is the claim of a wronged proposer, in a procurement by the state, barred by sovereign immunity or does it fall within the takings exception or the waiver (§ 775.01) exception?

The state says the only issue presented in the Ozaukee County case is whether the matter is moot because Prism never sought injunctive relief. The state also says the Dane County Circuit Court correctly held that that action was barred by sovereign immunity. From Ozaukee County.

Court of Appeals opinions week of October 20, 2008

(linked from post title)


Wisconsin Law Journal current case digests

Synopsis of '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), see Review granted in 'State v. Ward'.

The Court of Appeals' affirmed Jennifer Ward’s conviction for first-degree reckless homicide. The state's theory was that Jennifer Ward had shaken her infant nephew, causing a subdural hemotoma, which had ultimately led to his death. Her petition for review lists the two issues:
7) Are incriminating statements made after an arrestee is held incommunicado while being subject to deceitful interrogation tactics involuntary and inadmissible?
8) Is a waiver of counsel involuntary when it is made after an arrestee is held incommunicado and is told she cannot use the telephone during an overnight break in the interrogation?

Some background: Somewhere around 5 a.m. on Dec. 1, 2004, Jennifer called her husband, Joe, who was a truck driver and was sleeping at the time in Bloomington, IL. Jennifer had been babysitting her infant nephew, Thomas Ward, for several days. Jennifer was greatly upset and explained to Joe that Thomas had stopped breathing. Joe instructed Jennifer to contact a first responder who lived across the street. When the neighbor, Dawn Conley, came to Jennifer's house, Jennifer told her that Thomas had been throwing up and had stopped breathing. Conley performed CPR on Thomas until EMTs arrived to transport Thomas to the hospital. Shortly thereafter, Thomas died.

Conley was told of Thomas' death and relayed this information to Jennifer. At that point Jennifer became greatly agitated and blacked out. A deputy who had come to the Ward residence stated that Jennifer became non-responsive and appeared to have a seizure. A second ambulance transported Jennifer to the hospital, and Jennifer's own two children were taken there as well.

During initial questioning at the hospital, Jennifer denied having any knowledge as to the cause of Thomas' death. Detective Glenn Schaepe repeatedly told Jennifer during questioning that she must have caused an injury to Thomas in some way and that she was blocking the memories from her consciousness. Detective Schaepe also told Jennifer that her daughter had seen Jennifer shake Thomas, although he did not explain that the daughter had described Jennifer's shaking of Thomas as an effort to rouse him after he had become unconscious.

Because the police had arranged for a family friend to take Jennifer's children home while she was still in the hospital, Jennifer had no means to get home when discharged from the hospital. Detective Schaepe told Jennifer that he wanted to speak further with her and asked her to come to the sheriff's department. Jennifer agreed to be driven to the sheriff's department. Jennifer's husband and an attorney he had hired for Jennifer arrived shortly after Jennifer reached the sheriff's department, but Detective Schaepe refused to notify Jennifer of their presence. He did inform Jennifer of her Miranda rights and asked if she wanted to speak with an attorney. Although Jennifer asked whether this question meant she needed an attorney, she did not state that she wanted an attorney. The interrogation continued for three more hours until approximately 5:20 p.m.

At the end of the interrogation, Detective Schaepe told Jennifer that she was being taken into custody in connection with the death of Thomas. Jennifer was then taken to the county jail. Detective Schaepe told her that she would not be allowed to make any phone calls until he had completed his interrogation of her the next day. He did not advise her that this prohibition against phone calls did not pertain to calls to an attorney. Detective Schaepe testified that he subsequently informed jail personnel that although Jennifer was not allowed to contact any family members or friends, she could make a telephone call to an attorney. It is not clear whether this was communicated to Jennifer. In any event Jennifer did not speak with anyone during the night. The next morning the attorney retained by Jennifer's husband again attempted to see Jennifer, but was rebuffed. Jennifer was questioned further and made a number of inculpatory statements.

After the criminal action was filed, Jennifer filed a motion to suppress the statements she had made during each of three interviews. She argued that her statements had been involuntary, and that she had not intelligently and knowingly waived her right to the assistance of counsel. The circuit court rejected Jennifer's arguments and concluded that she had knowingly waived her constitutional rights and had voluntarily incriminated herself. The court of appeals agreed and affirmed her conviction.

In addition, to support her claim that this was not a shaken baby case, Jennifer points to expert testimony that some of the bleeding between the infant's brain and skull had occurred long before he died.

Jennifer asks the Supreme Court to review, under the totality of the circumstances, including her isolation from her husband and the attorney he hired and the half-truth about her daughter's statement, whether her statements to police and her waiver of her right to an attorney were knowing and voluntary. From Oneida County.

In Wisconsin Expulsions, We Don't Have to Leave Children Behind

by Jennifer A. Kratochvil, Marquette Law Review, Volume 91, page 1213

Synopsis of '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), see Review granted in 'Nedvidek v. Kuipers'.

This case concerns a lengthy dispute involving the city of La Crosse, University of Wisconsin System and military veterans groups over the naming of a football field, stadium and surrounding grounds in La Crosse.

The Supreme Court has been asked to review, among other things, whether two veterans, Rudy Nedvidek, Commander of VFW Post 1530 and Tom Hundt, president of Vietnam Era Veterans have standing to sue former UW-La Crosse Chancellor Judith L. Kuipers and others.

Some background: The football field was created on land that was part of what was formerly known as the "fairgrounds." The property was owned by the City of La Crosse. In October 1945, the La Crosse Common Council resolved to establish a memorial recreation center that was to honor the area residents who had served in this country's military. The football field and the immediately surrounding area became known as Memorial Field. When a stadium was built next to the football field, it became known as Veterans Memorial Stadium.

In 1987, the city proposed to transfer the property to the UW System to become part of the UW-La Crosse. The city's resolution and proposal to the UW System sought a condition that the public would continue to be allowed to use the facility as it had been doing. The UW Board of Regents agreed to accept the property via quit claim deed for $1 and then to expend money to repair the stadium, but required that any deed be without restrictions. The city's 1988 deed nonetheless stated that the conveyance was being made upon the express condition that the public could continue to use the field and facilities. The deed, however, contained no clause that called for reversion of the property if the university did not allow such use.

Ultimately, despite the Board of Regents' decision that it would not accept any conditions on the transfer of the property, the La Crosse mayor and the UW-La Crosse chancellor executed a use agreement. The use agreement provided that the name of the football stadium was to remain "Veterans Memorial Stadium" and that the public would continue to be able to use the facility as it had in the past for the following 25 years, which will expire in 2012.

In 2000, the long-time football coach of UW-La Crosse, Roger Harring, retired. Within a few days, UW-La Crosse Chancellor Kuipers, issued a memorandum stating that the football stadium would be renamed "Roger Harring Veterans Memorial Stadium." A controversy arose over this renaming. Within a few months Coach Harring had requested the removal of his name. The new UW-La Crosse chancellor then rescinded the prior renaming of the stadium and instead named the football field itself Roger Harring Field.

After the city filed an unsuccessful action to reverse the university's naming decisions, the city, the university and several local veterans representatives negotiated a compromise by which the stadium would be named Roger Harring Stadium and the football field would be known as Memorial Field. On December 9, 2005, the Board of Regents passed a resolution waiving its normal naming procedure and approving the negotiated names.

Nedvidek and Hundt argue that because the chancellors of UW-La Crosse acted unilaterally in the various renamings, they, all veterans, and all members of the public have been deprived of their First Amendment right to petition the government. Secondly, they claim that because UW System employees and the Board of Regents did not follow their own policies regarding the renaming of buildings and facilities, they and other veterans were denied due process of law. Nedvidek and Hundt assert that they have a protected interest to maintain the name of the stadium as Veterans Memorial Stadium for 25 years under the 1988 Use Agreement.

The Supreme Court is expected to review if the plaintiff-appellants in this case have standing, if the controversy is moot, and how the public meetings and open records laws may apply in certain cases involving the UW System officials. From Dane County, stemming from a controversy that began in La Cross County. Justice Ann Walsh Bradley did not participate.

Synopsis of '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), see Certification accepted in 'Tammi v. Porsche Cars North America, Inc.'.

This certification from the U.S. District Court for the 7th Circuit asks the Wisconsin Supreme Court to clarify issues related to the state’s “lemon law.” A decision could impact the sale of motor vehicles throughout Wisconsin, for both consumers and manufacturers.

Some background: On May 30, 2003, the plaintiff, Bruce Tammi, leased a 2003 Porsche 911 Turbo. The lease was through US Bank for a 36-month term and required an initial payment of $1999.85 and 35 subsequent monthly payments of $1912.35, for a total amount of lease payments of $68,844.50. The lease provided a purchase option at the end of the lease term for $64,344.10 plus tax and imposed a $395 termination fee if the lessee elected not to purchase the car.

The plaintiff said he had taken the car in for repairs to an automatically deploying spoiler at least four times during the first year under warranty, but the spoiler didn’t work properly. The problem set off warning lights and alarms inside the vehicle.

On Oct. 14, 2004, the plaintiff filed a complaint in Wisconsin state court alleging a violation by Porsche of the Wisconsin Lemon Law. Porsche removed the case to federal court on the basis of diversity jurisdiction.

During the course of the lease, the plaintiff paid the initial payment followed by 21 scheduled monthly payments, some of which were paid after he had filed suit. As the litigation continued and before the lease expired, the plaintiff purchased the car in December 2005 with a final payment of $75,621.88, despite the problems that persisted with the rear spoiler. Thus, the plaintiff bought a vehicle that he claimed was a lemon.

The 7th Circuit has certified the following issues:
1) When a consumer defined in Wisconsin Statute § 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?
2) If the consumer defined in Wisconsin Statute § 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 subsection (7)?
3) If the answers to questions 1 and 2 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?
4) Is a damage award under subsection (7) subject to a reduction for reasonable use of the vehicle?

The 7th Circuit says Wisconsin law, both case and statutory, is silent on the four questions certified. It says guidance from the Supreme Court would be most helpful since resolution of the issues presented here implicate important policy considerations.

Synopsis of 'State v. Wood'

The Wisconsin Supreme Court on September 11, 2008 accepted the Court of Appeals certification in this case (2007AP2767-CR), see Certification accepted in 'State v. Wood'.

This certification from the District IV Court of Appeals could affect the rights of people who may refuse medication but are not competent to make decisions involving medication.

Some background: John A. Wood was committed to the state Department of Health and Family Services in 1999 under Wis. Stat. § 971.17, after being found not guilty by reason of mental disease or defect following a trial on charges of having non-consensual sexual contact with a resident of a hospital in 1998. Wood was remanded to the care of the Department for a period not to exceed 160 months. He has been confined at Mendota Mental Health Institute ever since and has unsuccessfully petitioned for supervised release on a number of occasions.

Wood had previously been diagnosed with paranoid schizophrenia. In 1978, he was found not guilty of second-degree homicide by reason of mental disease and committed until his conditional release in 1991.

In 2006, Mendota moved for an order finding Wood incompetent to refuse medication and authorizing the involuntary administration of medication. The circuit court issued the order following a hearing, without determining whether Wood was a danger to himself or others and without making any provision for periodic review of the medication order.

Wood filed a postconviction motion challenging the constitutionality of the involuntary medication statute for criminally committed persons, § 971.17(3)(c). Wood's postconviction motion was denied and Wood appealed.

The certification involves the interpretation of § 971.17(3)(c) and the application of Wis. Stat. § 971.16(3), which provides the standard to determine whether a criminally committed person is not competent to refuse medication or treatment. The court of appeals said that these statutes do not require any finding with respect to dangerousness and do not contain any provision for automatic review of medication orders.

A decision by the Supreme Court could clarify law as it relates to people found not guilty by reason of mental defect who may be in need of medication and not competent to make medication decisions. From La Crosse County.

Synopsis of '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), see Review granted in 'Ho-Chunk Nation v. Department of Revenue'.

The Ho-Chunk Nation asks the Supreme Court to review denial of a claim for a refund of cigarette taxes under § 139.323, Stats., with respect to cigarette sales on the DeJope property in Madison.

In reliance on § 139.323, the nation filed a claim for a refund of 70 percent of the taxes paid on cigarette sales by the nation on the Dejope property during certain periods in 2003 and 2004.

The Department of Revenue denied the claim on the ground that the property was not "designated . . . trust land on or before Jan. 1, 1983." The nation filed a petition for review with the Tax Appeals Commission (the commission), arguing that the property was "designated . . . trust land" in August of 1982, when the Secretary of the Interior's authorized representative approved the purchase of the land in trust.

The commission affirmed the department's decision on summary judgment, agreeing with the department that the property was not "designated . . . trust land" until the United States held title, and that did not occur until an authorized representative of the United States approved the deed on Jan. 31, 1983. The commission denied the nation's request for a rehearing. The Court of Appeals affirmed a circuit court order, which affirmed the Commission.

The Ho-Chunk Nation asks the Supreme Court to review if ambiguities in the statute should be construed in favor of the tribes under the law, and how the timing of conveyance of land to trust affects the possible tax refund under the statute. From Dane County.

Court of Appeals opinions week of October 13, 2008

(linked from post title)


Wisconsin Law Journal current case digests

Synopsis of '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), see Review granted in 'State v. Gajewski'.

In this third-degree sexual assault case, the Supreme Court has been asked to review how the law should have been applied to claims of ineffective assistance of counsel by the defendant, Jordan L. Gajewski.

Some background: A jury found Gajewski guilty of third-degree sexual assault. The female victim testified that after attending a party on May 8, 2005, she spent the night at a friend's house, as did the defendant, a high-school classmate the victim said she did not know well.

The victim testified at trial that during the night she woke up to find the defendant kissing her and removing her clothing. She said he then had intercourse with her. She testified that she told the defendant to stop and that he eventually did stop and went back to sleep. Two other people were sleeping in the same room at the time, and two other friends of the victim were in the house. None of the other people awakened, and the victim did not yell for help. The victim reported the assault on May 18, 2005.

Sentence was withheld and Gajewski was ordered to serve five years probation with 12 months in jail, with Huber privileges, as a condition. The sentence was stayed pending appeal. The defendant filed a post-conviction motion alleging newly discovered evidence and ineffective assistance of counsel. The newly discovered evidence consisted of a witness saying that he overheard the victim making a statement that "it never happened; I just did it to piss him off" the day after the trial ended. The circuit court concluded the comment the witness overheard was so vague that there was no reasonable probability that a different result would be reached at trial if the jury had heard the statement.

With respect to the ineffective assistance of counsel claim, the postconviction court said it agreed with the state's position that the defendant was bringing up information post-trial that he never conveyed to his attorney. The court said it did not find counsel's performance to be outside the range of the professionally competent assistance. The defendant appealed, and the Court of Appeals reversed and remanded.

A decision from the Supreme Court would help to develop and clarify the law on how ineffective assistance of counsel issues are to be analyzed. From Marathon County.

Hearing on CLE reporting

October 14, 2008 9:30 a.m. Public hearing 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)

State Bar Board of Governors supports electronic filing in appellate court and opposes BBE’s proposed conditional admission petition, among other actions, Inside the Bar, October 2008

Pressure to File

Hearing set on CLE approval and reporting changes

Amended Petition filed April 1, 2008 by John E. Kosobucki, Director, Board of Bar Examiners

Petition filed April 1, 2008 by John E. Kosobucki, Director, Board of Bar Examiners

Hearing and conference on unpublished opinions

October 14, 2008 9:30 a.m. Public Hearing and Open Administrative Conference In the matter of the Proposed Amendments to Wis. Stat. s. (Rule) 809.23 (08-02)

State Bar narrowly supports petition to cite unpublished opinions

To Cite or Not to Cite: Should Wisconsin Permit Citing of Unpublished Opinions? by Beth Ermatinger Hanan, Wisconsin Lawyer, August 2008

Stay Tuned – Supreme Court to Take Up Rule on Citation of Unpublished Opinions, by Beth Hanan, Wisconsin Civil Trial Journal, Spring 2008

Hearing set on citing unpublished opinions

Petition filed to permit citing unpublished opinions

Antitrust Follies

As serious people go about serious business, the FTC is wasting taxpayer money investigating
whether a merger of Whole Foods and Wild Oats, two "organic" food stores, would violate the obsolete (at best) and unconstitutional antitrust laws.

Talk about a fools' errand. It is unfathomable how either store, much less a combination of them, could present any anticompetitive threat. Both are already overpriced, and socially irresponsible.

Suppose all agricultural land was converted to "organic" farming. The result -- massive food shortages -- would result in literally billions dying of starvation. Even those well off enough not to starve would still see their food budgets triple.

Of course, there are still Malthusian remnants among us who would enjoy this, but I am willing to accept the average "organic" food shopper as simply misguided, rather than genuinely evil.

Ultimately, though, these grocery stores fulfill no need whatsoever except to give insecure people, who have more dollars than sense, a false sense of superiority over the masses who are grateful for the agricultural revolution, and don't have the luxury of renouncing its great benefits.

A good analogy for the FTC's actions is to imagine if, back in the 1970s, the FTC were to block a merger of Erhard Seminar Training and Lifeworks (for you young attorneys, those were cults back then).

Like "organic" food stores, these cults made alot of money preying on insecure rich people. Ultimately, they died out, because they charged people alot of money, while providing nothing of any intrinsic value.

Ultimately, "organic" food stores will die out for the same reason, with or without any action on the part of the socialists who still believe that antitrust law is both constitutional and sound policy.

Argument in 'Lisowski v. Hastings Mutual Ins. Co.'

October 13, 2008 10:00 a.m. [html | pdf] (2006AP2662)
Review of the Court of Appeals

Whether enforcement of a “covered auto” limitation in an insurance policy’s endorsement introduction is reasonable under Crandall ex rel. Johnson v. Society Insurance, 2004 WI App 34, 269 Wis. 2d 765, 676 N.W.2d 174

Second Amendment

Second Amendment? What Second Amendment? There's no Second Amendment in the Western District of Wisconsin.

Synopsis of '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), see Review granted in 'Kenosha Professional Firefighters v. City of Kenosha'.

This case, which involves an attempt to recovery attorney fees, began as an open-records request in December 2005 and now contemplates when an order is considered final for the purposes of recovering attorney fees.

Some background: The Kenosha Professional Firefighters had asked the city and its personnel director to disclose personnel records of fire chiefs and other officials. Among the materials sought were copies of the officials' written applications for their positions and their "matrix scores."

Receiving an unsatisfactory response, in January 2006, the firefighters filed a petition for a preemptory writ of mandamus seeking disclosure of these items. In an amended answer, the city said that matrix scores had previously been destroyed by the contractor, and the contractor later provided an affidavit, attesting to the destruction.

In March 2006, at the hearing on the mandamus petition, the city conceded that if the matrix scores had been in its possession they would have been subject to disclosure but because the scores had been destroyed, the matter was moot.

On Aug. 4, 2006, the firefighters filed an application for an award of statutory damages, attorney fees and costs, in an amount exceeding $15,000. It was not until Oct. 26, 2006 and Nov. 9, 2006, after briefing on the fee application had been completed, that the city furnished the contractor's affidavit, which satisfied the firefighters that the matrix scores had in fact been destroyed and no record of them existed.

In a Jan. 19, 2007, decision, the circuit court held that the fees sought by the firefighters were reasonable, but that the application had been untimely filed. It concluded that the April 2006 writ was the final document from which an appeal could have been taken and therefore the fee application should have been filed within 30 days. See Wis. Stat. § 806.06(4). The circuit court said that the statute requires a successful party causing the judgment to be entered to perfect the judgment within 30 days of entry or forfeit the costs. A judgment is perfected by the taxation of costs and the insertion of that amount into the judgment. See Wis. Stat. § 806.06(1)(c). The circuit court said that the clerk taxes the costs pursuant to Wis. Stat. § 814.10(1), when application to do so is made by the prevailing party. It noted that under § 814.04, attorney fees are included as an "item of cost."

The circuit court rejected the firefighters' argument that no final judgment had been entered and therefore no time period had begun to run with respect to the taxation of costs. It said if that were true, there would be no reason for the application of attorney fees and costs being made.

The Court of Appeals noted that since the preemptory writ granted the firefighters' requests, it was not an adverse ruling subject to an appeal by the firefighters. See Ford Motor Credit Co. v. Mills, 142 Wis. 2d 215, 217, 418 N.W.2d 14 (Ct. App. 1987).

The Court of Appeals said that a judgment is final even though a claim for attorney fees under a fee shifting statute remains unresolved because the taxation of costs is akin to the mere execution of the decision related to but separate from the underlying action.

A decision by the Supreme Court could clarify the concept of finality for the purposes of appeal and recovering fees. From Kenosha County.

Synopsis of 'Milwaukee Journal Sentinel v. Department of Administration'

The Wisconsin Supreme Court on September 11, 2008 granted the petition to review the Court of Appeals decision in this case (2007AP1160), see Review granted in 'Milwaukee Journal Sentinel v. Department of Administration'.

This is a certification from the District IV Court of Appeals, addressing Wis. Stat. § 19.37(1)(a), Wisconsin's public record statute.

Some background: The Milwaukee Journal Sentinel and Lakeland Times newspapers seek to compel access to state employee records in the possession of the Wisconsin Department of Administration and the Wisconsin Department of Natural Resources. The state agencies provided the requested documents but redacted the names of specific employees pursuant to a collective bargaining agreement. The circuit court granted the plaintiffs' motions for summary judgment requiring the release of records. The Wisconsin State Employees Union, which intervened, appealed. The office of the State Employment Relations filed a non-party brief supporting the union's arguments.

The newspapers argue that any change to the open records law had to be specifically identified in ratifying the bill or companion bill. They claim that the legislature violated Wis. Const. art. IV, Sec. 17, when it ratified the contract without passing bills specifically identifying changes in the law as required by § 111.92.

The certification asks the Supreme Court to address two issues:
5) Whether courts have jurisdiction to review the process the Legislature used to amend the open records law by ratifying a collective bargaining agreement; and
6) if so, whether the legislative process was effective to bring about a change in the law. From Dane County.

Argument in 'Christensen v. Sullivan'

October 8, 2008 2:00 p.m. [html | pdf]
Review of the Court of Appeals

Under Frisch v. Henrichs, 2007 WI 102, 736 N.W.2d 85, does Wis. Stat. ch. 785 allow an award of damages as a remedial sanction where alleged contemptuous action has ceased and other forms of relief are available?

Should the decision in Frisch v. Henrichs, 2007 WI 102, 736 N.W.2d 85 be applied retroactively to the facts of this case?

Argument in 'Noffke v. Bakke'

October 8, 2008 11:00 a.m. [html | pdf] (2006AP1886)
Review of the Court of Appeals

Whether a cheerleading coach employed by a school district is entitled to discretionary immunity under Wis. Stat. § 893.80(4) for conduct alleged to have contributed to the injury of a cheerleader.

Does Wis. Stat. § 895.52(4m) include the activity of cheerleading, thus providing immunity from suit for a participant’s alleged negligent acts?

Is Cheerleading A Sport?, by Matthew J. Mitten at Marquette University Law School Faculty, December 27, 2007

Court of Appeals opinions week of October 6, 2008

(linked from post title)


Wisconsin Law Journal current case digests

Argument in 'State v. Ndina'

October 8, 2008 9:30 a.m. [html | pdf] (2007AP5-CR)
Review of the Court of Appeals

Whether a defendant’s Sixth Amendment right to a public trial can be waived for purposes of appellate review if the defendant did not raise an objection to the trial court’s exclusion of family members from portions of the trial.

If the public trial challenge is not preserved for appellate review by a defendant’s failure to object to the trial court’s exclusion of family members during portions of the trial and the appellate challenge is to the effectiveness of trial counsel for not preserving the public trial challenge, must the defendant prove actual prejudice?

A historic moment in city's legal history, by Jennifer K. Woldt, The Oshkosh Northwestern, October 7, 2008

The Supreme Court will preside over oral arguments in six cases Tuesday and Wednesday in a Winnebago County courtroom as part of its Justice on Wheels program, which gives the public a chance to watch the court in action, learn about what it does and clear up misconceptions they may have about the court.

(via The Wheeler Report)


Wisconsin Supreme Court Hits the Road, by Marge Pitrof, WUWM Milwaukee, October 6, 2008
(via The Wheeler Report)

Argument in 'Apple Valley Gardens Assoc., Inc. v. MacHutta'

October 7, 2008 2:00 p.m. [html | pdf] (2007AP191)
Review of the Court of Appeals

Whether a bylaw amendment requiring a condominium unit owner to occupy the unit (thereby prohibiting the rental of units) is enforceable or whether such a use restriction must be in the condominium declaration.

Does the Court of Appeals’ decision in this case conflict with Banker’s Trust Co. of Cal, N.A. v. Bregant, 2003 WI App 86, 261 Wis. 2d 855, 661 N.W.2d 498?

Is this case distinguishable from LeFebvre v. Osterndorf, 87 Wis.2d 525, 275 N.W. 2d 154 (St. App. 1979)?

Argument in 'State v. Denk'

October 7, 2008 11:00 a.m. [html | pdf] (2006AP1744-CR)
Review of the Court of Appeals

Whether police officers may search the personal belongings of a passenger that are found outside a motor vehicle incident to the arrest of the driver based on the reasoning of State v. Pallone, 236 Wis. 2d 162, 613 N.W.2d 568 (2000).

Argument in 'Blunt v. Medtronic, Inc.'

October 7, 2008 9:30 a.m. [html | pdf] (2006AP1506)
Review of the Court of Appeals

Are state law negligence and product liability claims preempted by 21 U.S.C. § 360k (a) where the alleged defective medical product received FDA pre-market approval but the manufacturer was not required to sell the product because it had obtained FDA pre-market approval for an alternative design?

What impact does the U.S. Supreme Court’s recent decision in Riegel v. Medtronic, Inc., [518 U. S. 470] (2008) have upon the issue in this case?

This Week in Liberal Judicial Activism: Week of October 6, 2008

Greenhouse’s ethics, Barkett and lovers’ quarrels, and more:

Ed Whelan at Bench Memos.

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

John Fund "Stealing Elections: How Voter Fraud Threatens Our Democracy" October 8, 2008

John Fund will speak on "Stealing Elections: How Voter Fraud Threatens Our Democracy" at an October 8, 2008 Noon luncheon at the Milwaukee Athletic Club, 757 North Broadway, , presented by the Milwaukee Lawyers Chapter and Marquette Student Chapter.

John Fund is a member of the Wall Street Journal’s editorial board and writes the paper’s daily “Political Diary.” He has written on voter fraud and election irregularities for the last decade in the Wall Street Journal, The New Republic, The American Spectator and other publications.

His topic is the subject of his recently revised and updated book Stealing Elections: How Voter Fraud Threatens Our Democracy, published by Encounter Books.

In Stealing Elections, John Fund takes the reader on a national tour of voter fraud scandals ranging from rural states like Texas and Mississippi to big cities like Philadelphia and Milwaukee. He explores dark episodes such as the way “vote brokers” stole a mayoral election in Miami in 1998 by tampering with 4,700 absentee ballots. He reveals how, in the aftermath of the “Motor Voter Law” of 1993 , Californians used mail-in forms to get absentee ballots for fictitious people and pets. Stealing Elections gives us a chilling portrait of our electoral vulnerability.Writing with urgency and authority, John Fund shows how a lethal combination of bureaucratic bungling and ballot rigging have put our democracy at risk.

Update: John Fund on Election Fraud and Its Remedies, The Glenn and Helen Show, October 3, 2006

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

Court of Appeals opinions week of September 29, 2008

(linked from post title)


Appeals court decisions, by Marie Rohde, Proof and Hearsay on State v. Scolman (2007AP2682-CR October 2, 2008) and on State v. Lange (2008AP882-CR October 2, 2008)


Wisconsin Law Journal current case digests

Synopsis of '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), see Review granted in 'Bubb v. Brusky'.

The issue raised in this medical malpractice case is whether the trial court committed reversible error when it precluded the jury from considering an informed consent claim by plaintiffs Richard and Marjorie Bubb.

The Bubbs seek review of a Court of Appeals' decision affirming a circuit court judgment dismissing their claims after a jury verdict finding that Drs. William Brusky and Xian Feng Gu were not negligent in their care and treatment of Richard Bubb.

Some background: On the evening of Oct. 24, 2001, Richard Bubb was taken by ambulance to St. Agnes Hospital after he fell to the floor while having dinner. Dr. Brusky was on duty in the emergency department and reviewed Richard's symptoms and ordered various tests including a CT scan, EKG, and blood test.

Richard's symptoms began to diminish while he was at the hospital. After the tests were done, Richard said he was feeling better and wanted to go home. Based on the tests performed and the fact that Richard's symptoms were resolving, Dr. Brusky concluded Richard had experienced a transient ischemic attack, or TIA. The primary cause of a TIA is atherosclerotic disease, a buildup of cholesterol plaque that is often called hardening of the arteries which can diminish the heart's capacity to provide blood to the brain. After consulting with Dr. Gu, a neurologist, it was agreed Richard would see Dr. Gu for a follow up. However, before the follow-up appointment, Richard was taken to the emergency room at St. Joseph’s Hospital in West Bend because he suffered a stroke. The doctors there discovered that Richard's right carotid artery showed a 90 percent blockage.

The plaintiffs filed suit, claiming that the negligence of Drs. Brusky and Gu caused Richard serious and permanent injuries to his left arm, left leg, and the left side of his face.

The jury returned a verdict in favor of Drs. Brusky and Gu, determining that neither doctor was negligent in his care and treatment of Richard. The trial court entered judgment dismissing the plaintiffs' claims and awarding costs to the defendants. The plaintiffs moved for a new trial arguing, among other things, that the trial court had improperly dismissed the informed consent claim and specifically challenging the decision to omit the informed consent jury instruction and special verdict question. The circuit court denied the motion. The plaintiffs appealed, and the Court of Appeals affirmed.

A decision from the Supreme Court would further develop and clarify the law on informed consent issues which are likely to recur. From Fond du Lac County. Justice Annette Kingsland Ziegler did not participate.

Assisting suicide no bar to inheritance

Assisting a relative to commit suicide is not "killing" the person, the Wisconsin Court of Appeals holds. Legislative history, and the legislative purpose of sec. 854.14, supports the holding.

But the court's odd rationale -- that "killing" unambiguously does not include assisted suicide -- makes the case a good candidate for further review.

Governor Should Appoint Supreme Court Justices

Mary Hubler with a Legislative Watch in Wisconsin Lawyer, October 1999

Supreme court candidates in recent campaigns have resorted to 30-second sound bites to disseminate what often are complex messages. And, unlike the high-minded supreme court campaigns of the past, the 1999 race was characterized by strident, negative television advertising.

Synopsis of '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), see Review granted in 'Umansky v. ABC Insurance Co.'.

This case, stemming from a wrongful death action, asks the Supreme Court to examine the extent of immunity provided to state officers under certain circumstances.

Some background: On Nov. 23, 2003, Richard Umansky, working as a cameraman for ABC Sports Broadcasting at Camp Randall, fell to his death from a platform unprotected by a railing.

Umansky’s parents filed a wrongful death complaint against Barry Fox, who served as the Director of Facilities at UW-Madison, who is alleged to have been responsible for compliance with safety regulations at Camp Randall Stadium.

The trial court concluded that Fox was entitled to public officer immunity and entered a summary judgment dismissing the complaint. In a published decision, the Court of Appeals reversed and remanded for fact finding as to the applicability of the ministerial duty exception. The state asks the Supreme Court to review the nature of the duty imposed by state safety statutes and regulations.

The plaintiffs argue that Wisconsin law is quite clear that a "state officer or employee is not shielded from liability for the negligent performance of a purely ministerial duty." See Meyers v. Schultz, 2004 WI App 234, ¶12, 277 Wis. 2d 845, 690 N.W.2d 873. On the other hand, the state claims Fox's duties, if any, were discretionary.

A decision by the Supreme Court could clarify how immunity may apply to some state officers under certain circumstances. From Dane County.

Moral Judicial Estoppel

by Warren von Schleicher, of Smith, von Schleicher & Associates, Chicago, Illinois, on

the penumbra of the doctrine of judicial estoppel — that if a party wins a suit on one ground, it can’t turn around and in further litigation with the same opponent repudiate the ground in order to win a further victory.

Ladd v. ITT Corp., 148 F.3rd 753, 756 (7th Cir. 1998)

"This Week's Feature" in DRI's The Voice, October 1, 2008, Volume 7, Issue 39

Court of Appeals arguments October 2008

Wisconsin Court of Appeals


October 7, 2008 at Dist. I, 633 W. Wisconsin Ave., #1400, Milwaukee
10:00 a.m. State v. Lee (2008AP390-CR)


October 14, 2008 at Dist. III, 2100 Stewart Ave., Ste. 310, Wausau
1:30 p.m. Hinz v. Wisconsin American Mutual Ins. Co. (2008AP698)


October 21, 2008 at Dist. II, 2727 North Grandview Blvd., Waukesha
10:00 a.m. Racine County v. Oracular Milwaukee, Inc. (#2007AP2861)

Merit selection his 'first choice'

This Wisconsin State Journal editorial says that Bob Edgar, national president of Common Cause, agrees with its position favoring "merit selection" of supreme court justices.

About half of the United States and virtually the entire rest of the world appoints justices rather than electing them, Edgar noted. The process better ensures impartial justice and public respect for high court decisions.

(via The Wheeler Report)

Supreme Court arguments and hearings October 2008

Supreme Court headed for Oshkosh - Limited seating remains for Justice on Wheels

The Wisconsin Supreme Court will move its proceedings to Oshkosh ... hosting a press conference on Monday, October 6 [Winnebago County Courthouse, Branch 4, at 4 p.m.], and conducting hearings in six cases [see below] on October 7 and 8.

October 7, 2008 Oral argument [html | pdf]

9:30 a.m. Blunt v. Medtronic, Inc. (2006AP1506)
Review of the Court of Appeals

Are state law negligence and product liability claims preempted by 21 U.S.C. § 360k (a) where the alleged defective medical product received FDA pre-market approval but the manufacturer was not required to sell the product because it had obtained FDA pre-market approval for an alternative design?

What impact does the U.S. Supreme Court’s recent decision in Riegel v. Medtronic, Inc., [518 U. S. 470] (2008) have upon the issue in this case?

11:00 a.m. State v. Denk (2006AP1744-CR)
Review of the Court of Appeals

Whether police officers may search the personal belongings of a passenger that are found outside a motor vehicle incident to the arrest of the driver based on the reasoning of State v. Pallone, 236 Wis. 2d 162, 613 N.W.2d 568 (2000).

2:00 p.m. Apple Valley Gardens Assoc., Inc. v. MacHutta (2007AP191)
Review of the Court of Appeals

Whether a bylaw amendment requiring a condominium unit owner to occupy the unit (thereby prohibiting the rental of units) is enforceable or whether such a use restriction must be in the condominium declaration.

Does the Court of Appeals’ decision in this case conflict with Banker’s Trust Co. of Cal, N.A. v. Bregant, 2003 WI App 86, 261 Wis. 2d 855, 661 N.W.2d 498?

Is this case distinguishable from LeFebvre v. Osterndorf, 87 Wis.2d 525, 275 N.W. 2d 154 (St. App. 1979)?

October 8, 2008 Oral argument [html | pdf]


9:30 a.m. State v. Ndina (2007AP5-CR)
Review of the Court of Appeals

Whether a defendant’s Sixth Amendment right to a public trial can be waived for purposes of appellate review if the defendant did not raise an objection to the trial court’s exclusion of family members from portions of the trial.

If the public trial challenge is not preserved for appellate review by a defendant’s failure to object to the trial court’s exclusion of family members during portions of the trial and the appellate challenge is to the effectiveness of trial counsel for not preserving the public trial challenge, must the defendant prove actual prejudice?

11:00 a.m. Noffke v. Bakke (2006AP1886)
Review of the Court of Appeals

Whether a cheerleading coach employed by a school district is entitled to discretionary immunity under Wis. Stat. § 893.80(4) for conduct alleged to have contributed to the injury of a cheerleader.

Does Wis. Stat. § 895.52(4m) include the activity of cheerleading, thus providing immunity from suit for a participant’s alleged negligent acts?

2:00 p.m. Christensen v. Sullivan (2006AP803)
Review of the Court of Appeals

Under Frisch v. Henrichs, 2007 WI 102, 736 N.W.2d 85, does Wis. Stat. ch. 785 allow an award of damages as a remedial sanction where alleged contemptuous action has ceased and other forms of relief are available?

Should the decision in Frisch v. Henrichs, 2007 WI 102, 736 N.W.2d 85 be applied retroactively to the facts of this case?

October 13, 2008 Oral argument [html | pdf]

10:00 a.m. Lisowski v. Hastings Mutual Ins. Co. (2006AP2662)
Review of the Court of Appeals

Whether enforcement of a “covered auto” limitation in an insurance policy’s endorsement introduction is reasonable under Crandall ex rel. Johnson v. Society Insurance, 2004 WI App 34, 269 Wis. 2d 765, 676 N.W.2d 174

Statements of issues are from a Table of Pending Cases


October 14, 2008 Rule hearings


9:30 a.m. In the matter of the Proposed Amendments to Wis. Stat. s. (Rule) 809.23 (08-02) Public Hearing and Open Administrative Conference

State Bar narrowly supports petition to cite unpublished opinions

To Cite or Not to Cite: Should Wisconsin Permit Citing of Unpublished Opinions? by Beth Ermatinger Hanan, Wisconsin Lawyer, August 2008

Stay Tuned – Supreme Court to Take Up Rule on Citation of Unpublished Opinions, by Beth Hanan, Wisconsin Civil Trial Journal, Spring 2008

Hearing set on citing unpublished opinions

Petition filed to permit citing unpublished opinions


9:30 a.m. 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) Public Hearing

State Bar Board of Governors supports electronic filing in appellate court and opposes BBE’s proposed conditional admission petition, among other actions, Inside the Bar, October 2008

Pressure to File

Hearing set on CLE approval and reporting changes

Amended Petition filed April 1, 2008 by John E. Kosobucki, Director, Board of Bar Examiners

Petition filed April 1, 2008 by John E. Kosobucki, Director, Board of Bar Examiners


October 28, 2008 Rule hearings


9:30 a.m. In the matter of the Definition of the Practice of Law and the Administration of a Rule Defining the Practice of Law (07-09) Open Administrative Conference

Comments filed August 7, 2008

Revised draft by State Bar of Wisconsin, August 4, 2008

Court conference on UPL October 28, 2008

UPL Petition held in abeyance

July 9, 2007 a.m. and July 9, 2007 p.m. hearing audio

Petition filed June 19, 2007 by Thomas J. Basting, Sr., President-Elect, State Bar of Wisconsin, attachment 1, attachment 2


9:30 a.m. In the matter of the petitions to create Wis. Stat. ss. (Rule) 809.19, 809.32, 80.62, and 809.80 relating to the electronic filing of appellate briefs, no-merit reports, and petitions for review and responses (08-15 and 08-18) Public Hearing

State Bar Board of Governors supports electronic filing in appellate court and opposes BBE’s proposed conditional admission petition, among other actions, Inside the Bar, October 2008

Appellate Court E-Filing on the Horizon, by David R. Schanker, Wisconsin Lawyer, September 2008

Hearing on appellate e-filing October 28, 2008

Electronic filing of Petitions for Review and Responses proposed

Court of Appeals proposes requiring electronic filing of appellate briefs

Synopsis of '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), see Review granted in 'Horst v. Deere & Company'.

This product liability action was previously before the Supreme Court on a petition to bypass, which the Court denied.

The petitioners, Jonathan Horst, by his Guardian ad Litem, and Kara Horst, seek review of a published Court of Appeals’ decision that affirmed a circuit court order dismissing their personal injury claim and their request for a new trial against Deere & Company.

Essentially, the question presented in this is whether Wisconsin law includes a “bystander contemplation” test as part of its strict products liability jurisprudence.

Some background: In May 2004, while mowing the lawn with his 1999 Deere LT160 riding lawn mower, Michael Horst intentionally activated the manual override button so that he could mow his lawn "in reverse." He then accidentally backed over his two-year-old son, Jonathan, resulting in severe injuries requiring amputation of the child’s feet.

The Horsts filed suit against the manufacturer claiming negligence and strict liability and seeking punitive damages. They alleged that the manufacturer breached an independent duty it owed to third-party bystanders by permitting such mowers to even have an “override” feature that allows “back-up” mowing. Deere moved for summary judgment on grounds that the “consumer contemplation test” barred Jonathan’s strict liability claim. Deere also argued that the negligence claim and the claim for punitive damages failed as a matter of law.

The jury found for the defendants. The Horsts sought a new trial and, when this was denied, appealed. On appeal, the Horsts argued that the circuit court gave incorrect jury instructions. Essentially, they assert that the instructions given to the jury foreclosed the jury from deciding whether Deere’s tractor design resulted in a product that was unreasonably dangerous to an innocent bystander like Jonathan. They contend this resulted in instructions that are not consistent with Wisconsin law. As noted, the Court of Appeals affirmed and this petition followed.

Horst asks the Supreme Court to review if the Court of Appeals misinterprets Howes [v. Hansen, 56 Wis. 2d 247, 201 N.W.2d 825 (1972)] and Shawver [v. Roberts Corp., 90 Wis. 2d 672, 280 N.W.2d 226 (1979)] by holding that a manufacturers’ § 402A duty to design a reasonably safe product as to bystanders is satisfied if the product is not unreasonably dangerous to users? From Washington County. Justice Annette Kingsland Ziegler did not participate.