Friday, January 30, 2009

Insurers dealt blow by state Supreme Court

Ryan J. Foley, Associated Press, in the Green Bay Press-Gazette, January 30, 2009
Liberty [Mutual Group] argued the claims should be considered "one occurrence," which would limit the damages, because they were caused by a single mistake: the manufacture and sale of asbestos-tainted products. Liberty also claimed it should not be responsible for costs related to injuries that happened while it was not Plenco's insurer.

The Supreme Court rejected those arguments Thursday. In a majority decision written by Justice Annette Ziegler, the court said each person injured must be treated as a separate occurrence and Liberty has to pay the full cost of defending and compensating victims up to its policy limits.

(via The Wheeler Report)

See Decision in 'Plastics Engineering Co. v. Liberty Mutual Ins. Co.' 2009 WI 13.

Petition for rules on original actions for redistricting dismissed

On January 30, 2009 the Wisconsin Supreme Court entered an order [html| pdf] that
the matter of the adoption of procedures for original action cases involving state legislative redistricting is hereby dismissed. No further action will be taken.

The February 20, 2009 open administrative conference on the petition was canceled. See State Supreme Court scraps redistricting plan.

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

Thursday, January 29, 2009

Wisconsin Supreme Court Rules that Economic Loss Doctrine Bars Tort Claims for Intentional Misrepresentations in Real Estate Transactions:

Andrew Cook, The Hamilton Consulting Group, January 29, 2009
Two bills have been introduced as a result of the Wisconsin Supreme Court’s decision. Senate Bill 9 and Assembly Bill 6, if enacted, would amend Wis. Chap. 895 by adding a tort cause of action for an intentional misrepresentation made by the seller of real estate.

See 'Below v. Norton' 2008 WI 77

Watch the first Supreme Court debate online

Tony Anderson reported in the Wisconsin Law Journal, January 28, 2009, that
The Wisconsin Newspaper Association will host a debate between [Chief Justice Shirley] Abrahamson and [Judge Randy] Koschnick during its annual conference in Green Bay. That debate is scheduled to take place at 2:30 p.m. [today]. The debate, which will be moderated by Milwaukee Journal Sentinel Managing Editor George Stanley, is the first opportunity to hear the two candidates together.

He includes a link to online video of the debate.

Controversial campaign review committee is back for second year

Jack Zemlicka, Wisconsin Law Journal, January 28, 2009, reports on the Wisconsin Judicial Campaign Integrity Committee (WJCIC) and its chair, Thomas J. Basting, Sr..
“Did we learn a lesson from last year?” Basting said. “You know, the people on this committee are sophisticated, seasoned professionals, not easily affected by the kind of stupid criticisms we had.”

See Membership of Wisconsin Judicial Campaign Integrity Committee Was Not Impartial, Star Chamber's Secret Deliberations Exposed, and Trial Lawyers Create Star Chamber Attempt to Shield Judges from their Record

Scope of underinsured motorist insurance limited by Wisconsin Supreme Court

Alex De Grand, State Bar of Wisconsin, January 28, 2009

See Decision in 'Lisowski v. Hastings Mutual Insurance Company' 2009 WI 11

Decision in 'State v. Kramer' 2009 WI 14

The Wisconsin Supreme Court today issued its decision in this case (2007AP1834-CR) affirming the Court of Appeals, 2008 WI App 62.
Opinion by Justice Roggensack for a unanimous court


Court clarifies community caretaker capacity, by David Ziemer, Wisconsin Law Journal, February 9, 2009


Police “caretaker function” cures Fourth Amendment violation, Wisconsin Supreme Court says, by Alex De Grand, State Bar of Wisconsin, January 30, 2009


See Argument in 'State v. Kramer'

Decision in 'Plastics Engineering Co. v. Liberty Mutual Ins. Co.' 2009 WI 13

The 63 Million Dollar Insurance Question, by Michelle Stoeck and Steven Snedeker, Hills Legal Group, Ltd, Waukesha, March 1, 2009


Insurers dealt blow by state Supreme Court: Decision on asbestos suits to impact future litigation on industry, by Ryan J. Foley, Associated Press, in the Green Bay Press-Gazette, January 30, 2009 (via The Wheeler Report)


Insurer must cover all of loss not entirely within policy period, says Wisconsin Supreme Court, by Alex De Grand, State Bar of Wisconsin, January 29, 2009


Gableman drives a judicial Fiat, by Tom Foley, Illusory Tenant, January 29, 2009


The Wisconsin Supreme Court today issued its decision in this case (2008AP333-CQ) on certification from the United States Court of Appeals for the Seventh Circuit. See Argument.
Opinion by Justice Ziegler, with Justices Bradley, Crooks, Prosser, and Roggensack
Concurrence by Chief Justice Abrahamson
Concurrence and dissent by Justice Gableman

Decision in 'Office of Lawyer Regulation v. Mulligan' 2009 WI 12

The Wisconsin Supreme Court today issued its decision in this case (2008AP971-D) approving the stipulated public reprimand.
Justice Gableman did not participate.

Synopsis of 'State v. Lange'

The Wisconsin Supreme Court has granted review in this case. (2008AP882-CR)
In this case, the state has asked the Supreme Court to review how the standards for determining probable cause should apply to an arrest for operating a motor vehicle while intoxicated.

Some background: Maple Bluff Police arrested Mitchell A. Lange for operating a motor vehicle while intoxicated, second offense, after a car crashed into a utility pole around 2:52 a.m. on Jan. 21, 2007. A police officer, who just got off work, and another officer who was on duty, each reported seeing a white car driving on the wrong side of the road. The on-duty officer visually estimated the car was travelling 15 miles per hour over the speed limit and followed the vehicle with activated overhead lights. At one point, the officer increased her speed to eighty-four miles per hour, but said she was unable to close the distance between herself and the white car. She then saw a cloud of gray smoke up ahead, and when she reached it, she saw a downed utility pole held off the ground by its wires, the white car flipped onto its roof, and Lange lying unconscious on the ground.

Lange moved to suppress the evidence obtained when his blood was drawn following his arrest, arguing police did not have probable cause to arrest him. The trial court denied Lange’s motion. The Court of Appeals reversed, concluding that the facts of this case do not establish probable cause to arrest Lange for OWI, and remanding with directions to grant Lange’s motion to suppress.

The state asks the Supreme Court to review whether, as a matter of law, some affirmative proof of the use of intoxicants, such as odor, admission to drinking or a found liquor bottle must be shown for probable cause.

Specifically, the state asks the Supreme Court to review the following issues:
Was there probable cause to arrest for OWI where the defendant was observed by police driving on the wrong side of a four-lane road at speeds over 80 m.p.h. in a 30 m.p.h. zone shortly after “bar time,” and crashed into a utility pole causing his car to flip onto its roof and rendering him unconscious and unable to perform field sobriety tests?

To establish probable cause to arrest for OWI, must the state prove in every case specific “indicia” of intoxicant usage such as odors of intoxicants, the driver’s admission to using intoxicants or the presence of intoxicant containers? Or, can probable cause be established without such indicia when the totality of the circumstances still support a reasonable inference that the driver was impaired by intoxicants?

See Review granted in 'State v. Lange'

Wednesday, January 28, 2009

Overturned OWI conviction sent to state Supreme Court

Kevin Murphy in The Capital Times
In appealing the case to the state's high court, the court will consider if driving 30 mph over the speed limit at bar time, flipping a car over and rendering the driver unconscious and unable to perform field sobriety tests could be considered indications of intoxicated driving.

(via WisPolitics)


See Review granted in 'State v. Lange'

Decision in 'Lisowski v. Hastings Mutual Insurance Company' 2009 WI 11

The Wisconsin Supreme Court today issued its decision in this case (2006AP2662) affirming the Court of Appeals.
Opinion by Justice Crooks, with Justices Prosser, Roggensack, Ziegler, and Gableman
Dissent by Justice Bradley, with Chief Justice Abrahamson

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


Son Not Covered Under Father's Business Auto Policy, by Steven Snedeker, Hills Legal Group, Ltd, May 2009


UIM recovery limited to covered autos, by David Ziemer, Wisconsin Law Journal, February 2, 2009


Scope of underinsured motorist insurance limited by Wisconsin Supreme Court, by Alex De Grand, State Bar of Wisconsin, January 28, 2009

Synopsis of 'Zellner v. Herrick'

The Wisconsin Supreme Court has accepted certification in this case. (2007AP2584)
This certification from the District II Court of Appeals involves another appeal arising from the Cedarburg School District’s discharge of teacher Robert Zellner for allegedly viewing pornography on a district-provided computer. In particular, this certification arises out of a request by a private citizen to obtain a transcript of a closed arbitration proceeding connected with Zellner's grievance under the applicable collective bargaining agreement following the termination of his employment.

The Court of Appeals certified the following questions: Is a transcript of a closed arbitration proceeding a public record under Wisconsin’s “public records” law? If the transcript is a public record, must all personal and medical information be redacted before release?

In a previous appeal, Zellner v. Cedarburg School District, 2007 WI 53, 300 Wis. 2d 290, 731 N.W.2d 240, the Supreme Court affirmed the denial of Zellner’s request for an injunction to prohibit the school district from releasing a memorandum and a compact disc containing adult images and internet searches that Zellner allegedly viewed and conducted.

See 'Zellner v. Cedarburg School District' 2007 WI 53
The Supreme Court also has denied Zellner’s request to review a Court of Appeals’ decision affirming the circuit court’s conclusion that “an arbitration panel exceeded its authority when it ordered Zellner to be reinstated in contradiction of public policy that immoral behavior in our public schools is grounds for immediate termination.” See Cedarburg Education Ass’n v. Cedarburg Board of Education, No. 2007AP852.

See Review granted in 'Zellner v. Herrick'

Tuesday, January 27, 2009

Decision in 'Noffke v. Bakke' 2009 WI 10

The Wisconsin Supreme Court today issued its decision in this case (2006AP1886) affirming in part and reversing in part the Court of Appeals, 2008 WI App 38. See Argument,
Opinion by Justice Ziegler, with Justices Crooks, Prosser, Roggensack, and Gableman
Concurrence by Chief Justice Abrahamson, with Justice Bradley


GO TEAM! Wisconsin’s latest recreational immunity controversy, by Jacques C. Condon in Wisconsin Lawyer, June 2009


Supreme Court: Cheerleading is a contact sport, by David Ziemer, Wisconsin Law Journal, January 30, 2009


If cheerleading is a contact sport, then fetch me a sled, by Mike Nichols, Milwaukee Journal Sentinel, January 30, 2009


Court finds cheerleading is a team sport, by Tony Anderson, Wisconsin Law Journal, January 27, 2009


Immunity for school sports activities withstands challenge before supreme court, by Alex De Grand, State Bar of Wisconsin, January 27, 2009


Cheerleader can't sue school or spotter, court rules, by Marie Rohde, Milwaukee Journal Sentinel, January 27, 2009


“Recklessness” Is the Proper Standard of Care for Injuries Sustained in Connection with Physical Contact Sports, by Kara M. Burgos, of Moen Sheehan Meyer, Ltd., Wisconsin Civil Trial Journal, Winter 2008

Court of Appeals opinions week of January 26, 2009

(linked from post title)

Wisconsin Law Journal current case digests

Review granted in 'State v. Lange'

The Wisconsin Supreme Court on January 14, 2009 granted the petition to review the Court of Appeals decision in this case (2008AP882-CR). The January 21, 2009 Table of Pending Cases [html | pdf] says the issue is:
Whether Washburn County v. Smith, 2008 WI 23, 308 Wis. 2d 65, 746 N.W.2d 248 requires specific indicia of alcohol consumption (such as odor of intoxicants, a driver’s admission of use of intoxicants, presence of alcohol containers) or whether all facts suggestive of impaired use of a motor vehicle may be considered in determining whether there is probable cause to arrest for OWI.

See 'Washburn County v. Smith' 2008 WI 23

Overturned OWI conviction sent to state Supreme Court, by Kevin Murphy, The Capital Times (via WisPolitics)

Wisconsin Supreme Court Accepts Two More Cases, Including Question of Probable Cause to Arrest for OWI, by Jessica E. Slavin, Marquette University Law School Faculty, January 21, 2009

Monday, January 26, 2009

James Wynn and Harold See "A Discussion on Methods of Judicial Selection" January 29, 2009

Judge James Wynn of the North Carolina Court of Appeals and Associate Justice Harold Frend See, Jr., of the Alabama Supreme Court will discuss methods of judicial selection at a luncheon Thursday, January 29, 2009, Noon at the University Club, 924 East Wells Street, Milwaukee.

Reservations may be made by printing and completing the registration form and mailing with $15.00 Federalist Society, c/o Dan Kelly, Suite 1700, 1000 North Water Street, Milwaukee, Wisconsin 53202, for receipt on or before January 27, 2009. 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.


James Wynn received his Bachelor of Arts Degree from the University of North Carolina-Chapel Hill, his Juris Doctor from Marquette University Law School, and a Master of Laws degree from the University of Virginia School of Law. He received a UCMJ Arts 42(a) and (b) Military Judge Certification in 2000.

He practiced with the U.S. Navy JAG Corps, was a North Carolina Assistant Appellate Defender, and with the firm of Fitch, Butterfield & Wynn. He was a Judge, North Carolina Court of Appeals from 1990 to 1998, and Associate Justice, North Carolina Supreme Court in 1998, and again a Judge of the North Carolina Court of Appeals since 1999. He has also been a Certified Military Trial Judge in the U.S. Navy Reserves from 2000 to the present.

Judge Wynn chairs the Judicial Division of the American Bar Association and has served in numerous other leadership positions with the ABA. He is a director of the Justice at Stake Campaign. He is a member of the American Law Institute. He has held various positions with the National Conference of Uniform State Laws and has been active with the North Carolina Bar Association, North Carolina State Bar, and North Carolina Association of Black Lawyers. He is a member of the State Bar of Wisconsin. Among his awards is the 2004 – Marquette University “All University Alumni Merit Award”. His publications include “Judging the Judges,” Marquette University Law Review, 86 Marq.L.Rev. 753, Spring 2003.


Harold See received his Bachelor of Arts degree from Emporia State University, Kansas, his Master of Science degree in economics from Iowa State University, and his Juris Doctor degree from the University of Iowa College of Law, where he graduated with honors and was awarded the Order of the Coif.

He served as Assistant Professor of Economics at Illinois State University and practiced law with Sidley & Austin. Justice See then joined the faculty at the University of Alabama School of Law, where he served for over twenty years successively as Associate Professor, Full Professor, and Herbert D. Warner Professor of Law. In 1996, he was elected Associate Justice of the Alabama Supreme Court.

Justice See has served as a contributing editor to the Federal Circuit Bar Journal, and he is a member of the American Law Institute, the Alabama Law Institute, the American Law and Economics Association, the Federalist Society, the American Bar Association, the Alabama State Bar Association, and V.O.C.A.L., a victims' rights advocacy group. He served as reporter for the Alabama Trade Secrets Acts and the revisions to the Alabama Trademark Law. Justice See has authored or edited over 40 books, chapters, articles, and reviews.


Presented by the Milwaukee Lawyers Chapter of the Federalist Society for Law and Public Policy Studies, and the Milwaukee Lawyer Chapter of the American Constitution Society for Law and Policy

“Disfigurement” given broad meaning under disability statute by supreme court

Alex De Grand, Legal Writer, State Bar of Wisconsin, January 23, 2009

See Decision in 'County of Dane v. Labor and Industry Review Commission' 2009 WI 9

ADR Section Position Summary re: Amicus Curiae Brief Request (Baldwin)

At WisBar
Pursuant to Section 2(a) of Article VII of the Bylaws of the State Bar of Wisconsin, the Alternative Dispute Resolution Section is requesting that the Board of Governors authorize the filing of a non-party amicus curiae brief by the Alternative Dispute Resolution Section in the pending Supreme Court of Wisconsin case of West Central Education Association and School District of Baldwin-Woodville [(2008AP519)].

State Bar members are invited to submit questions and comments, by Noon on February 3, 2009.

See Synopsis of 'Baldwin-Woodville Area School Dist. v. West Central Education Assoc.'

Nonprofit corporation is not “for-profit” because it is profitable, says supreme court

Alex De Grand, Legal Writer, State Bar of Wisconsin, January 23, 2009

See Decision in 'De La Trinidad v. Capitol Indemnity Corporation' 2009 WI 8

"Baby Mama Drama" Judge No Stranger To Strange Rulings (Volume I)

Jeff Wagner on the Court of Appeals decision reversed in 'State v. Duchow' 2008 WI 57

Review granted in 'Zellner v. Herrick'

The Wisconsin Supreme Court on January 14, 2009 accepted the Court of Appeals certification in this case (2007AP2584). The January 21, 2009 Table of Pending Cases [html | pdf] says the issues are:
Is a transcript of a closed arbitration proceeding a public record under Wisconsin’s “public records” law (Wis. Stat. § 19.35)?

If the transcript is a public record, must all personal and medical information be redacted before release?

Wisconsin Supreme Court Accepts Two More Cases, Including Question of Probable Cause to Arrest for OWI, by Jessica E. Slavin, Marquette University Law School Faculty, January 21, 2009

See Fired Cedarburg teacher loses final appeal

Friday, January 23, 2009

State Supreme Court scraps redistricting plan

The LaCrosse Tribune reports
The state Supreme Court scrapped plans Thursday to prepare for boundary disputes over legislators’ districts.
[ ]
The seven justices met in an open meeting Thursday to decide whether to adopt the recommendations.
[ ]
In the end, the justices voted 4-3 vote to jettison the committee’s plan and consider any legal challenges as they come.

See Hearing on original actions for redistricting

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

Decision in 'County of Dane v. Labor and Industry Review Commission' 2009 WI 9

The Debate over Statutory History, by Andrew Hitt, Marquette University Law School Faculty, August 5, 2009


A Limp as Permanent Disfigurement, by Steven Snedeker, Hills Legal Group, Ltd, Waukesha, March 1, 2009


Statutory history part of statute’s plain meaning, by David Ziemer, Wisconsin Law Journal, January 30, 2009


“Disfigurement” given broad meaning under disability statute by supreme court, by Alex De Grand, Legal Writer, State Bar of Wisconsin, January 23, 2009The Wisconsin Supreme Court today issued its decision in this case (2006AP2695) affirming the Court of Appeals, 2007 WI App 262. See Argument
Opinion by Justice Roggensack, with Justices Crooks, Prosser, Ziegler, and Gableman
Concurrence by Chief Justice Abrahamson, with Justice Bradley

Decision in 'De La Trinidad v. Capitol Indemnity Corporation' 2009 WI 8

The Wisconsin Supreme Court today issued its decision in this case (2007AP45) affirming the Court of Appeals.
Opinion by Justice Crooks for a unanimous court


Non-profit Recreational Immunity, by Steven Snedeker, Hills Legal Group, Ltd, Waukesha, March 1, 2009


Nonprofit corporation is not “for-profit” because it is profitable, says supreme court, by Alex De Grand, Legal Writer, State Bar of Wisconsin, January 23, 2009


Supreme Court rules for hunt club in drownings, Regional News Briefs: Wisconsin, Milwaukee Journal Sentinel, January 24, 2009


See Argument in 'De La Trinidad v. Capitol Indemnity Corporation'

Thursday, January 22, 2009

Can this Watch be reset?

Via Illusory Tenant, Rachel Vesco reported in The Badger Herald, January 20, 2009, Candidates to run cleaner Supreme Court race.
In addition to efforts made by the candidates, the watchdog group The [Wisconsin] Judicial Campaign Integrity Committee will also monitor the campaign. The group is composed of lawyers, former judges and media representatives to function as an informative service to the committee.

Former [sic] attorney John [sic Tom] Basting started the group in late 2007 and said it will be examining materials and ads released by the candidates to make sure they comply with judicial code.

“I think it’s important to have a citizen’s committee looking at the issues in the election in an effort to inform the public as to what they should be looking for and how they should make a decision to vote in this election,” Basting said.

In Mr. Basting's briefing to the State Bar Professionalism Committee's August 17, 2007 meeting he reportedly said
These oversight committees are 501c3s, are independent, and are non-profits with no affiliation to the bar or Supreme Court.
[ ]
Any campaign oversight committee / task force formed would be a separate, independent, permanent group. Its funding would come from a variety of sources; such as grants.

The WJCIC was, however, created as an ad hoc committee of the State Bar by Mr. Basting when he became President.

In his report at the February 29, 2008 Board of Governors meeting,
Basting added that the committee is likely to be rechartered as an independent body after the 2008 supreme court election.

Mr. Basting, perhaps in the meantime, said in Wisconsin Lawyer, May 2008
I think it is highly unlikely the costs of the committee will be charged to bar dues; instead, they will be subject to a Keller [v. State Bar of California, 496 U.S. 1 (1990)] deduction.

He apparently meant the costs of the Committee are charged to bar dues, but would be included in the Keller opt-out. If that's turned out to be the case, it hasn't been highlighted.

The WJCIC website's most recent entries are from July 2008 and as of today still says it is "A project of the State Bar of Wisconsin".

Former justice's case raises ethical issues with state high court

Patrick Marley reports in the Journal Sentinel
Heritage Farms - a company owned by former Justice Jon Wilcox and his family - is one of 19 plaintiffs that sued over a 2003 forest fire that decimated 572 acres. At issue is how much in damages is owed.

An expert on judicial ethics said justices should search their consciences to determine whether they can stay on the case. All have remained on the case without explaining their decision.

See Argument in 'Heritage Farms, Inc. v. Markel Insurance Company'

Prior violent offense element of greater stalking felony, Wisconsin Supreme Court holds

Alex De Grand, State Bar of Wisconsin, January 21, 2009

See Decision in 'State v. Warbelton' 2009 WI 6

Supreme Court pending cases January 21, 2009

The Wisconsin Supreme Court posted an updated Table of Pending Cases [html | pdf]

Synopsis of 'Osborn v. Dennison'

(2007AP1799)

(See Review granted in 'Osborn v. Dennison' for a statement of issues)
This case involves a dispute over a failed residential real estate transaction and whether the sellers elected the remedy of liquidated damages, preventing the sellers from obtaining their actual damages.

Some background: Harold Dennison offered to purchase the home of Douglas and Martha Osborn, using the standard WB-11 Residential Offer to Purchase form approved by the Department of Regulation and Licensing. He deposited $2,000 in earnest money with the broker in connection with his offer. The parties reached an agreement.

After two previously scheduled closing dates had passed, Osborn elected to take advantage of his right to conduct a pre-closing inspection. He and the brokers for both parties discovered damp insulation and damp walls in the basement. Dennison requested another extension of the closing date to address these issues, but the Osborns rejected that request and the deal did not close.

The Osborns subsequently directed their broker to hold the earnest money and place the house back on the market. They also told their broker that they intended to sue Dennison for actual damages after the house had been sold. Dennison requested his earnest money be returned, but did not receive it at that time.

The Osborns sold their house to another buyer in October 2005. In April 2006, they filed a complaint against Dennison, which alleged breach of the sales agreement and sought actual damages.

The Osborns say they never requested nor received the earnest money and that Dennison never authorized it to be released to them. Dennison filed a motion to dismiss, which apparently raised the defense that the Osborns had elected the liquidated damages represented by the earnest money. On June 23, 2006, the Osborns directed their broker to return the earnest money to Dennison. The circuit court denied the motion to dismiss in July 2006. The Osborns then filed an amended complaint, which noted that they had authorized the return of the earnest money and which again sought actual damages.

Summary judgment motions were filed by both sides. The circuit court granted the partial summary judgment motion filed by Dennison and ruled that the Osborns were limited to collecting the $2,000 in earnest money as liquidated damages. The circuit court believed that the Osborns had irrevocably elected the remedy of liquidated damages when they had refused Dennison's request in May 2005 for the return of his earnest money. The Court of Appeals affirmed.

The Osborns ask the Supreme Court to review if under these circumstances they “retained” the earnest money and thereby irrevocably elected the remedy of liquidated damages and forfeited their right to actual damages. From Kenosha County.

Wednesday, January 21, 2009

The State Bar did what?

David Ziemer at Wisconsin Law Journal, January 19, 2009
...I expect the State Bar to oppose the change. If I did still practice law, I would be absolutely furious at the State Bar of Wisconsin for supporting, rather than opposing, the rule change.

One of the purposes of the Bar is “to safeguard the proper professional interests of the members of the bar.” SCR 10.02(2).

I suspect that, to most practicing attorneys, as opposed to the Bar’s leadership, this is the primary purpose of the organization. The rule change that the bar supported benefits only out-of-state attorneys. But for dues-paying bar members, there is no benefit; the rule change imposes only costs by benefiting the competition, without getting anything in return.

See Admission eased for out-of-state attorneys

In the matter of amendment to Supreme Court Rule (SCR) 40.05 relating to admitting lawyers upon proof of practice elsewhere (08-07)

Supreme Court accepts two new cases

The Wisconsin Court System announced January 20, 2009 that the Wisconsin Supreme Court has accepted review of:
Zellner v. Herrick (2007AP2584), see Fired Cedarburg teacher loses final appeal
and
State v. Lange (2008AP882-CR)

Among the cases not accepted were:
Cedarburg Education v. Cedarburg Bd. (2007AP852) Chief Justice Abrahamson and Justice Bradley dissent.
Carini v. Acuity (2007AP2603) Justice Roggensack dissents.
State v. Thiel (2007AP2742) Chief Justice Abrahamson concurs.

Hearing on original actions for redistricting

Supreme Court pending rules petitions and audio include:

January 22, 2009 10:00 a.m. In the matter of the adoption of procedures for original action cases involving state legislative redistricting (02-03) open administrative conference
See Hearing set on Original Actions for Redistricting

Decision in 'Office of Lawyer Regulation v. Woods' 2009 WI 7

The Wisconsin Supreme Court today issued its decision in this case (2008AP544-D) ordering the stipulated one year suspension.
Per curiam opinion

Court of Appeals opinions week of January 19, 2009

(linked from post title)

Wisconsin Law Journal current case digests

Decision in 'State v. Warbelton' 2009 WI 6

Prior Conviction as an Element of a Crime: The Effect of Stipulations After State v. Warbelton, by Brent Simerson, Marquette University Law School Faculty, July 6, 2009


Prior violent offense element of greater stalking felony, Wisconsin Supreme Court holds, by Alex De Grand, State Bar of Wisconsin, January 21, 2009


The Wisconsin Supreme Court today issued its decision in this case (2007AP105-CR) affirming the Court of Appeals, 2008 WI App 42. See Argument in 'State v. Warbelton'. Opinion by Justice Bradley for a unananimous court.

Synopsis of 'State v. Popke'

(2008AP446-CR)

(See Review granted in 'State v. Popke' for a statement of issues)
In this case, the state's petition asks the Supreme Court to review if a brief swerve of three-quarters of a motor vehicle across the center line of the road provides probable cause to believe that the driver has violated Wis. Stat. § 346.05, which requires all motorists to "drive on the right half of the roadway." If such a temporary crossing constitutes "driving" on the wrong side of the road, then the police may stop a motorist who has engaged in such conduct for the traffic offense, which in turn might lead the police to discover that the driver is intoxicated, even though the traffic offense, by itself, might not allow a stop for drunk driving. Alternatively, the state also asks if such a left-of-center violation followed by two instances of weaving within a single traffic lane within a distance of two blocks give a police officer reasonable suspicion to make an investigatory stop for possible drunk driving?

Some background: At approximately 1:30 a.m. on July 8, 2007, Sgt Jeff Schlueter of the New London Police Department observed Michael Popke's truck make a left-hand, 90-degree turn onto Cedarhurst Drive. As Schlueter pulled out to follow the truck, he saw three-quarters of Popke's vehicle momentarily cross the center of the road immediately after it had made the left turn, and the truck soon traveled to the far right side of the road where it almost hit the curb. The truck then veered or faded back toward the center of the road, where it almost hit a center median.

Schlueter pulled Popke's truck over and ultimately arrested him. Blood-alcohol tests subsequently revealed that Popke had a blood-alcohol concentration of 0.255 percent. The state charged Popke with operating while intoxicated (OWI) and operating a motor vehicle with a prohibited blood alcohol concentration (BAC) – each the third offense.

Popke filed a motion to suppress all of the evidence obtained after the stop. The circuit court denied the motion, agreeing with the state that Schlueter's observation of a violation of Wis. Stat. § 346.05 provided justification for the officer to make the traffic stop. Popke then entered a no-contest plea to the OWI charge, and the BAC charge was dismissed.

On appeal, Popke challenged the circuit court's suppression ruling, and the Court of Appeals reversed, concluding that under the plain language of the statute a momentary swerve across the center of the road did not constitute a failure to "drive" on the right half of the roadway.

The state argues that the Court of Appeals actually ignored the literal language of Wis. Stat. § 346.05, contending that it is not appropriate to consider the extent and duration of the crossing of the center. The legislature chose to include exceptions where a vehicle may drive in the left lane, such as where it is necessary to avoid an obstacle or to pass a vehicle. None of those exceptions were present here. Thus, the state asserts that when the legislature provides exceptions to a statute, it intends that statute to be interpreted literally.

The state argues the issue in this case is not whether Popke would in fact have been convicted of a violation of Wis. Stat. § 346.05, but whether the police had probable cause to believe that a traffic law had been violated. The state contends that Popke's crossing of the center of the roadway, even if for only a short time, clearly provided such probable cause.

Popke asserts that under the state's view of the statute, there would be a violation of the statute and probable cause to make a traffic stop even if only one tread of an individual's tire crossed the center line of the road. He asserts that under this interpretation, thousands of vehicles could be pulled over every day.

A decision by the Supreme Court could clarify if a momentary crossing of the center line creates probable cause to believe that a motorist has failed to drive on the right side of the roadway, as required by Wis. Stat. § 346.05. Alternatively, the court may provide further guidance as to what driving conduct a police officer must observe in order to create a reasonable suspicion of an OWI violation. From Waupaca County.

Tuesday, January 20, 2009

Defense of cop killer issue in Supreme Court race

Ryan J. Foley of the Associated Press reported in The Capital Times that his prior work as a public defender might be an issue in the campaign for Supreme Court by Circuit Judge Randy Koschnick, particularly his defense of Ted Olson against a charge of murdering a police officer.
[Chiefe Justice Shirley] Abrahamson's campaign manager Heather Coburn pledged the justice would not exploit Koschnick's work as a public defender, which she called noble. And the man who prosecuted Oswald endorsed Koschnick for judge and for the Supreme Court.

But Louis Butler became the first sitting justice lose in 41 years last spring, after opponents ran ads attacking him as "Loophole Louie," a former public defender who was soft on crime.

(via WisPolitics)

Year in Review 2008: Important Opinions

At Wisconsin Law Journal, January 19, 2009
A compilation of the Wisconsin Supreme Court and Wisconsin Court of Appeals (published) opinions from 2008.

Synopsis of 'Baldwin-Woodville Area School Dist. v. West Central Education Assoc.'

(2008AP519)

(See Review granted in 'Baldwin-Woodville Sch. v. West Central Ed.' for a statement of issues)
In this case involving a dispute over a teacher’s pay rate, the Supreme Court has been asked to review application of the “perverse misconstruction” doctrine and if courts may vacate arbitration awards where parties gave the arbitrator express authority to decide procedure and timeliness.

Some background: Christine Johnson has been a full-time teacher at the Baldwin-Woodville School District's Greenwood Elementary School since the 2002-03 school year. At the time of her initial employment in August 2002, she was placed in the applicable compensation schedule, which reflected her graduate level education credits. Her resulting salary was $28,808.

After a new contract was negotiated, her salary was reduced to $28,148 because she was mistakenly placed in the wrong category. Through the next two school years, Johnson was unaware of the change and did not inquire about or challenge it.

On August 30, 2005, Johnson submitted a form titled "Request to Change Lanes for the 2005-06 School Year." After verifying her graduate credits, the District placed Johnson in the higher pay lane for the 2005-06 school year, but did not compensate for past years. Johnson and the local association president met with the school superintendent, who brought the matter to the school board's attention. In late June of 2006, the school board rejected Johnson's request for back pay.

On June 26, 2006, the Association filed a grievance with the superintendent on Johnson's behalf, alleging violations of the collective bargaining agreement. The grievance was denied in a letter from the district's counsel, which said in part that the grievance was untimely. A subsequent grievance was addressed to the school board and was also denied.

The dispute went to binding arbitration before a Wisconsin Employment Relations Commissioner arbitrator, who rejected the district’s contention the grievance was untimely because it was not filed within 15 days of when Johnson became aware she was not being compensated in the appropriate category.

The District moved to vacate the arbitrator's award, arguing that the award exceeded the arbitrator's powers and authority and manifestly disregarded the law in violation of § 788.10(1)(d). The circuit court denied the district's motion, concluding that the arbitrator's decision was rational and supported by the evidence.

The District appealed, and the court of appeals reversed and remanded, concluding the grievance was not timely.

The Association says even if the court of appeals believed the arbitrator made the wrong determination, Wisconsin law is clear that a court may not vacate an arbitration award for errors of law or fact.

A decision by the Supreme Court could clarify issues regarding the timeliness of grievances and the scope of appellate review of an arbitrator's decision. From St. Croix County.

Monday, January 19, 2009

Two rules petitions not to be heard April 21

The Wisconsin Court System in a January 16, 2009 press release announced
The Wisconsin Supreme Court decided Wednesday not to proceed with hearings on two rules petitions concerning campaign contributions and recusals.
[ ]
After the Court scheduled the hearing, the U.S. Supreme Court accepted and scheduled oral argument in Caperton v. A.T. Massey Coal Co., Docket No. 08-22, on Tuesday, March 3.

The following question is before the U.S. Supreme Court in Caperton:

Justice Brent Benjamin of the Supreme Court of Appeals of West Virginia refused to recuse himself from the appeal of the $50 million jury verdict in this case, even though the CEO of the lead defendant spent $3 million supporting his (justice Benjamin’s) campaign for a seat on the court--more than 60 percent of the total amount spent to support Justice Benjamin's campaign-- while preparing to appeal the verdict against his company. After winning election to the court, Justice Benjamin cast the deciding vote in the court's 3-2 decision overturning that verdict. The question presented is whether Justice Benjamin's failure to recuse himself from participation in his principal financial supporter's case violated the Due Process Clause of the Fourteenth Amendment.

(See State justices consider recusal rules)

In re creation of rules for recusal when a party or lawyer in a case made contribution effecting a judicial campaign (08-16), and In the Matter of Amending the Rules of Judicial Conduct (08-25)

Admission eased for out-of-state attorneys

David Ziemer reports in Wisconsin Law Journal, January 16, 2009
Under amendments to SCR 40.05, effective Jan. 1, the Board of Bar Examiners (BBE) no longer varies the requirements for admission based on what rules the applicant’s native state imposes on Wisconsin attorneys.

(See Order permitting admission without reciprocity, 2009 WI 3)

In the matter of amendment to Supreme Court Rule (SCR) 40.05 relating to admitting lawyers upon proof of practice elsewhere (08-07)

Synopsis of 'State v. McClaren'

(2007AP2382-CR)

(See Review granted in 'State v. McClaren' for a statement of issues)
In this criminal case, the state has asked the Supreme Court to review if a trial court may order a defendant who claims self-defense to make pretrial disclosure of possible evidence of the victim’s prior violent acts.

Some background: Jason McClaren is charged with one count of aggravated battery by use of a dangerous weapon, one count of attempted first-degree intentional homicide, and one count of first-degree reckless injury. McClaren is accused of hitting Conrad Goehl in the neck with a pick axe during an incident in McClaren’s garage on March 31, 2007.

During a videotaped interview with police following the incident, McClaren stated that he had acted in self-defense. He asserted that he knew that Goehl had a violent nature and that Goehl had been "in and out of prison."

Prior to trial, McClaren filed a motion in limine indicating that he intended to present evidence of specific instances of conduct that showed violence or a violent nature by Goehl. This was done to support McClaren's claim of perfect self-defense.

The state did not oppose McClaren's attempt to submit such McMorris evidence. See McMorris v. State, 58 Wis. 2d 144, 205 N.W.2d 559 (1973) (allowing defendant to introduce evidence concerning prior specific instances of violent conduct by the victim to show the defendant's knowledge of that violent character).

The circuit court indicated that McClaren would be allowed to introduce such evidence at trial, but ordered McClaren to disclose the nature of such evidence to the state prior to trial. In particular, the circuit court required McClaren to give the state before trial "a (written) summary of all specific instances of the (complainant's) violent conduct of which the defendant was aware and that the defendant intends to introduce at trial, including witnesses to such conduct and the date and place such conduct occurred."

The Court of Appeals reversed the circuit court's order. McClaren argued that the circuit court's order requiring pretrial disclosure violated his state and federal constitutional right against compelled self-incrimination. He also claimed that if the circuit court would exclude evidence for failure to comply with the disclosure requirement, the exclusion would violate his constitutional right to due process and to present a defense.

The Court of Appeals concluded that the trial court’s general superintending authority cannot be read so expansively as to allow a court to require pretrial disclosure that is not authorized under the criminal discovery statute. The Court of Appeals also stated it did not have authority to promulgate rules of criminal practice or procedure.

The state contends that if disclosure is delayed until the middle of trial, the circuit court will be obligated to grant a continuance so the opposing party may investigate and prepare rebuttal. The state also contends that disclosure would be consistent with the federal rule of evidence, which requires the prosecution to provide pretrial notice of “other acts” evidence committed by the defendant.

A decision by the Supreme Court may clarify trial court authority regarding disclosure rules in this type of case. From Jefferson County.

Friday, January 16, 2009

Fired Cedarburg teacher loses final appeal

Dan Benson reports in the Milwaukee Journal Sentinel on the disposition of two cases related to the firing of a Cedarburg High School teacher.
The high court refused to consider a July 2008 appeals court ruling that upheld a judge's decision to overturn an arbitrator's order that the school district give Robert Zellner his job back.

In the other case, the court agreed to hear arguments on whether a transcript of the arbitration hearing should be made public.

(See Court of Appeals opinions week of July 21, 2008)

Synopsis of 'Biskupic v. Cicero'

(2007AP2314)

(See Review granted in 'Biskupic v. Cicero' for a statement of issues)
In this case, Vince Biskupic, a former Outagamie County district attorney and an unsuccessful candidate for Wisconsin attorney general in 2002, asks the Supreme Court to reinstate his libel and slander lawsuit filed against eight defendants, including a Shawano newspaper that falsely reported he had been convicted of bribery and graft.

The Court of Appeals agreed that the newspaper had published false statements, but concluded that Biskupic was a public figure and that he had not proven that the defamatory statements had been made with actual malice as required under libel laws. Actual malice means that the speaker or writer made the false statement with actual knowledge that it was false or with reckless disregard for whether the statement was false.

In August 2004, the Shawano Leader newspaper reported that circuit court judges in the Ninth Judicial Administrative District had voted to stop allowing judges to order convicted defendants to pay money to nonprofit organizations.

In its reporting, the newspaper quoted Stacey Cicero, the director of an anti-domestic violence group as saying: “ ‘I believe it was done in response to the bribery and graft cases involving former Winnebago County District Attorney Vince Biskupic.’”

The article continued with an unattributed statement: “Biskupic was convicted of accepting bribes to dismiss cases. Some of the money that defendants paid to have their cases dismissed went to organizations that he (Biskupic) was involved in or into his own pocket.”

Biskupic was never Winnebago County District Attorney, and he was never convicted of accepting bribes. Biskupic had served as an assistant district attorney in Winnebago County from 1989 to 1994 under then-Winnebago County District Attorney Joe Paulus. In 2002, Paulus was voted out of office amid bribery allegations and Paulus was convicted in 2004 on two federal counts that he accepted approximately $50,000 to fix cases.

According to the Court of Appeals decision in Biskupic’s libel suit: “During Biskupic’s 2002 campaign for attorney general, open records requests revealed payments by Outagamie County criminal defendants and potential defendants to a crime prevention fund Biskupic controlled. Some of the payments were ordered as part of the defendants’ sentences, while other payments were made under agreements in which no charges were filed or in which defendants entered a deferred prosecution agreement.”

A Wisconsin Ethics Board investigation expressed concerns about the practice, but did not sanction Biskupic. The board concluded Biskupic did not profit personally from the fund nor was he affiliated with any organization that received money from it.

Biskupic filed suit in August 2005, alleging Cicero’s comments were slanderous and that the Leader, which twice attempted to correct the story in print, had libeled him.

The circuit court granted summary judgment in favor of Cicero, the Leader and reporter, who used the byline name Joe Vandel at the time. The Court of Appeals affirmed the circuit court, which concluded “the defamation occurred as a result of confusion and negligence, not malice.”

Biskupic asks the Supreme Court to review three issues:

-- Based on the applicable case law, and considering the evidence in the light most favorable to the non-moving party (the petitioner), were the defendants entitled to summary judgment?

-- For purposes of the debate reported in the August 23, 2004 newspaper article, was the petitioner a "limited-purpose" public figure?

-- Was the plaintiff entitled to a sanction against the newspaper defendants or a jury instruction on spoliation based on the destruction of reporter's interview notes subsequent to the newspaper defendants being placed on notice of potential libel litigation?

From Shawano County.

Thursday, January 15, 2009

Court to discuss committee's redistricting reports, public comment

The Wisconsin Court System in a January 15, 2009 press release reminds us that
The Wisconsin Supreme Court will meet in open administrative conferences on Jan. 22 and Feb. 20 to discuss a committee’s findings and public comment regarding court procedures that could be used if it is asked to settle a dispute over legislative redistricting in Wisconsin.[ ]

See Hearing set on Original Actions for Redistricting

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

Wisconsin Civil Jury Instruction Committee meets January 29-30, 2009

The agenda includes:
1. Private nuisance
2. Public nuisance
3. Negligence Per Se
4. Trade Name
5. Violation of Wis. Stat. § 100.20, Home Improvement
6. JI-Civil 2780: Interference with Contract: Burden of Proof
7. Plain Language Revisions
8. Impact of Below v. Norton on Misrepresentation Series
(See 'Below v. Norton' 2008 WI 77)
9. Damages: Real and Personal Property
10. Revisions to Assault; Battery Series: J.I.-Civil 2004-2010

Subsequent meetings are presently scheduled for:
May 21-22, 2009, Spring Green
Sept. 23-25, 2009
Nov. 5-6, 2009, Waukesha
Jan. 28-29, 2010, Madison
May 27-28, 2010, Spring Green
Sept. 22-24, 2010

Synopsis of 'Hocking v. City of Dodgeville'

(2007AP1754)

(See Certification accepted in 'Hocking v. City of Dodgeville' for a statement of issues)
This certification asks the Supreme Court to consider a possible conflict between “reasonable use” rules regarding liability for surface water runoff and a previous decision that there may be liability under certain circumstances for failing to abate a nuisance.

Specifically, the District IV Court of Appeals certified the following issue: Can an uphill landowner who has done nothing to affect surface water flow be held liable to the owner’s downhill neighbor for damages sustained as a result of the water flow?

Some background: In 1991, the City of Dodgeville developed a subdivision on land surrounding a single-family home that Glenn and Louann Hocking had purchased in 1978. When the Hockings purchased the home, the nearest home was more than 200 feet away and they did not have problems with water collecting on their property.

Since 1991, after curb and gutter were installed and a number of homes were built, the Hockings claim that significant amounts of water have collected on their property and in their basement. In 2003, mold was discovered in their basement, the walls were unstable, and they were forced to move out, the Hockings contend.

In August 2006, the Hockings filed suit against the city and a number of individuals, including the owner and a previous owner of a home just uphill from the Hockings. The circuit court issued summary judgment in favor of the defendants, concluding that the property owners had not altered their property to affect water flow.

The Hockings appealed, asking the Court of Appeals to consider if the facts supported the circuit court judge’s findings; if an adjacent landowner has a duty to mitigate the nuisances; and if there is a duty, could there be liability for an adjacent landowner failing to mitigate the nuisance.

A decision by the Supreme Court may help resolve a possible conflict between the "reasonable use" rule regarding liability for surface water runoff adopted in State v. Deetz, 66 Wis. 2d 1, 224 N.W.2d 407 (1974), and the court's statement in Milwaukee Metropolitan Sewerage Dist. V. City of Milwaukee, 2005 WI 8, 277 Wis. 2d 635, 691 N.W.2d 658 (MMSD), that there can be liability under certain circumstances for negligently failing to abate a nuisance. From Iowa County.

Wednesday, January 14, 2009

Disposition table for November & December 2008, 2009 WI 5

Released January 13, 2009 by the Wisconsin Supreme Court [html | pdf]

Synopsis of 'State v. Long'

(2007AP2307-CR)

(See Review granted in 'State v. Long' for a statement of issues)
Michael Scott Long, the defendant in this criminal case, is serving life in prison without parole as a result of a penalty enhancer under the provisions of Wisconsin’s “three-strikes law,” Wis. Stat. § 939.62(2m)(b)1 and (c).

Long asks the Supreme Court to review whether the facts support his convictions of false imprisonment and second-degree sexual assault as a persistent repeater under the three-strikes law.
This dispute involves the interpretation of provisions of a homeowners insurance policy regarding replacement value of a home destroyed by fire.

This case examines whether Wisconsin’s hate crime statute, § 939.645(1)(b), permits additional punishment when applied to the facts of this disorderly conduct case, referred to by the defendant as a “speech-only” offense.

Some background, according to the Court of Appeals: While wearing white spandex shorts, Long asked a female desk clerk at a hotel if the spandex was supposed to be revealing. She responded it was supposed to be tight. Long then requested that she accompany him to a nearby breakfast room where he asked her to rate his penis. Long asked if he could hug her, and the victim answered “no” and started to back away. Long then grabbed her and held her tightly and forcefully from the front and from behind, with his clothed penis touching her buttocks, inner thigh and groin area. Long then went across the room and pulled down his pants, exposing his penis. The victim turned away and left the room.

A jury convicted Long of false imprisonment and second-degree sexual assault. At sentencing, the court applied the persistent repeater penalty enhancer under § 939.62, based on Long's previous convictions in Minnesota -- one was a fourth-degree criminal sexual conduct on Jan. 7, 2004; the other a burglary on Dec. 18, 2003. Long's conduct with respect to those convictions bears similarities to the facts charged here.

The Court of Appeals affirmed the trial court’s decision that these acts would constitute a second-degree sexual assault and burglary if committed in Wisconsin.

Long claimed the Minnesota burglary conviction would not have constituted a serious felony in Wisconsin because the crime he committed after making an illegal entry would have constituted fourth-degree sexual assault in Wisconsin, a misdemeanor. Long also argues the “force” used in the case now on appeal is not the type of force envisioned by the Legislature as second-degree sexual assault.

Long does not challenge the facts underlying his offenses; he challenges the legal significance of those facts. Until the three strikes legislation, the type of conduct charged here would not have resulted in life imprisonment. The stakes are “so great, the need for accurate decision making is heightened,” Long contends. From St. Croix County.

Tuesday, January 13, 2009

Court of Appeals opinions week of January 12, 2008

(linked from post title)


Wisconsin Law Journal current case digests

Synopsis of 'Donaubauer v. The Farmers Auto Ins. Assoc.'

(2007AP1992)

(See Review granted in 'Donaubauer v. The Farmers Auto Ins. Assoc.' for a statement of issues)
Some background: On April 15, 2003, Joseph P. Donaubauer’s house was destroyed by fire started by a passing train owned by the Union Pacific Railway Co. Donaubauer’s insurer, The Farmers Automobile Insurance Association, paid approximately $530,000 in fire loss claims to Donaubauer, who made an additional claim under the policy’s Home Guard replacement endorsement.

Farmers calculated that Donaubauer’s house could be rebuilt with equivalent construction for $380,819.38. Donaubauer sued, contending replacement value of $720,309. Under a process initially agreed upon to determine replacement value, appraisers concluded that full replacement cost was $396,260.75. Donaubauer twice turned down offers, including one of an additional $90,000, to settle terms of the Home Guard provision.

On April 12, 2004, Donaubauer sued Farmers, alleging, among other things, issues on appeal – breach of contract, bad faith and that Farmers failed to pay the “actual replacement value of the home.”

Farmers contends that Donaubauer’s attorney agreed to follow an appraisal process, similar to an arbitration process, to determine the replacement value of the home as outlined in the policy.

The circuit court found there had been a written agreement to resolve the case through the appraisal process and declined to set aside the appraisal process as a way to determine replacement value. The circuit court granted summary judgment to Farmers and dismissed Donaubauer’s breach of contract and bad faith claims. The Court of Appeals affirmed, concluding the appraisal process was designed as an alternative dispute resolution process and that grounds for vacating an award are extremely narrow.

Donaubauer has asked the Supreme Court to review if the standards for challenging appraisals and arbitrations precisely mirror one another and to provide guidance on the method to challenge an appraisal. He also asks if it was appropriate for him to be forced to participate in a binding appraisal process, even though nothing in his insurance policy mandated a binding process. He also wants the Supreme Court to review if he should have been allowed to conduct discovery on the undertakings of the appraisal process.

Farmers contends that Donaubauer agreed in writing to the appraisal process and that his attorney acknowledged doing so in court. Farmers also contends the Court of Appeals correctly decided that under the facts, requiring actual replacement under the policy was not unfair but commercially reasonable.

A decision by the Supreme Court could clarify law in this area. From Milwaukee County.

Monday, January 12, 2009

Synopsis of 'State v. Welda'

(2007AP2024-CR)

(See Review granted in 'State v. Welda' for a statement of issues)
Some background: The following facts, outlined by the Court of Appeals, are taken from identical complaints filed against three defendants, Anthony Welda, Victoria Trappe, and Timothy Wagner.
The defendants were charged with disorderly conduct and hate crime enhancer after Janesville police had been dispatched to investigate a reported disturbance where 10 to 15 people had gathered in Trappe’s front yard.

Trappe told police the disturbance was about “niggers” on her property without her permission and that that the officers needed to “get these niggers off my property.” The officer told Trappe to watch her language and to go back onto her porch, which she did. As she was walking back to her porch, she continued to yell the word “niggers” and stated that someone was going to end up “getting taken care of.”

Two African American men had approached Trappe’s home after being told by two child relatives that two men outside at Trappe’s residence had called them “niggers.” One of the defendants, Welda, told police that he, Wagner and others had been talking about the “niggers” in Beloit when two children, both African American, overheard them.

Welda stated that during the course of the confrontation with the two African-American males, Wagner retrieved a confederate flag from his truck and waved it around them.

A police officer told Wagner that “niggers” was a word he should not use, to which Wagner replied that is “bullshit,” and that he will use the word any time he wants.

After being cited, Trappe, Wagner and Welda successfully moved the circuit court to dismiss the hate-crime enhancer. Trappe and Wagner had argued there were insufficient facts contained in the complaint to support the application of the hate crime penalty enhancer.

Welda argued that the charge of disorderly conduct and the increased penalty under the hate crimes law were multiplicitous, in violation of double jeopardy provisions in the state and federal constitutions. The circuit court agreed.

The Court of Appeals reversed, noting the penalty enhancer required proof that the defendants "intentionally selected the person against whom the crime . . . is committed . . . in whole or in part because of the actor's belief or perception regarding the race . . . of that person. . . ." § 939.645(1)(b), Stats.

The facts of the case support the allegation that Wagner and Trappe used the term “nigger” because of the race of people targeted by their comments, the Court of Appeals found. In addition, the Court of Appeals concluded Welda failed to show that the Legislature had not intended to provide for cumulative punishments under the hate crime statute.

Welda petitioned for review by the Supreme Court, which is expected to consider three issues:
- If Wisconsin's hate crime law permits additional punishment in a speech-only disorderly conduct case when the speech itself forms the basis for the penalty enhancer?
- Whether Wisconsin’s hate crime law, § 939.645(1)(b), Stats., is unconstitutional as applied to the facts of this case. See R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)?
- Whether this is in fact a “speech only” disorderly conduct case or whether the facts would support a disorderly conduct charge based on the defendant’s actions in addition to his speech?
From Rock County.

Friday, January 9, 2009

Hearing and conference on prosecutors' ethical duties March 9, 2009

The Wisconsin Supreme Court on January 6, 2009 issued an order [html | pdf]
that a public hearing on the petition shall be held in the Supreme Court Room in the State Capitol, Madison, Wisconsin, on Monday, March 9, 2009, at 9:45 a.m.

and
that the court's conference in the matter shall be held promptly following the public hearing.

See Board of Governors discusses prosecutors’ ethics rule addressing wrongful convictions

Public Hearing re In the matter of amendment of Supreme Court Rules Chapter 20, Rules of Professional Conduct for Attorneys (08-24)

Review granted in 'Osborn v. Dennison'

The Wisconsin Supreme Court on December 16, 2008 granted the petition to review the Court of Appeals decision in this case (2007AP1799). The December 17, 2008 Table of Pending Cases [html | pdf] says the issue is:
After a failed real estate transaction, when the earnest money is being held in trust by a broker, and the buyer demands its return but the seller directs the broker to hold the money pending his decision as to how he will proceed, has the seller “retained” the earnest money and irrevocably elected the remedy of liquidate damages?

Wisconsin Supreme Court Accepts Three More Cases, by Jessica E. Slavin, Marquette University Law Faculty, December 26, 2008

Thursday, January 8, 2009

Hearing and Conference on conditional admission March 9, 2009

The Wisconsin Supreme Court on January 6, 2009 issued an order [html | pdf]
that a public hearing on the petition shall be held in the Supreme Court Room in the State Capitol, Madison, Wisconsin, on Monday, March 9, 2009, at 9:45 a.m.

and
that the court's conference in the matter shall be held promptly following the public hearing

See Hearing and Conference on conditional admission March 9, 2009

Public Hearing re In the matter of creation of Supreme Court Rule SCR 40.075 Relating to Conditional Admission to the Bar (08-13)

Review granted in 'State v. Popke'

The Wisconsin Supreme Court on December 16, 2008 granted the petition to review the Court of Appeals decision in this case (2008AP446-CR). The December 17, 2008 Table of Pending Cases [html | pdf] says the issues are:
Does a brief swerve of a motor vehicle into the wrong traffic lane provide probable cause, or at least reasonable suspicion, for a police officer to stop the vehicle for a violation of Wis. Stat. § 346.05?

Does a left of center violation by a motor vehicle followed by two instances of weaving within a single traffic lane, all over a two block distance, give a police officer reasonable suspicion to make an investigatory stop for possible drunk driving?

Wisconsin Supreme Court Accepts Three More Cases, by Jessica E. Slavin, Marquette University Law Faculty, December 26, 2008

Supreme Court to take up New London OWI case, Appleton Post-Crescent, December 23, 2008

Wednesday, January 7, 2009

"Since 'Heller', it’s Gun Control: 60, Individual Right: 0."

Before the Supreme Court’s decision, none of the numerous challenges to gun control laws raised in recent months would have had any hope of winning. Now, with a revolutionary ruling recognizing a renewed individual right to keep and bear arms, they still have no hope of winning.

About the only real change from Heller so far is that gun owners have to pay higher legal fees to find out they lose.

Adam Winkler, Professor of Law, UCLA School of Law, at ACSblog, on District of Columbia v. Heller, 554 U.S. __ (2008)

Candidates Boll and Troupis seek better service from State Bar

Wisconsin Law Journal, January 6, 2009, on our State Bar's two slated candidates for President-elect, James C. Boll, and James R. Troupis, of Madison.
Boll, who is in-house counsel for Madison Gas & Electric, Co., supports a voluntary bar and said that it is time the organization admit and address the fact that a portion of its membership is unhappy.

“We need to identify why there is disillusionment,” Boll said. “I think it exists based on some members who don’t believe they get anything from the bar.”

Troupis, a partner with Michael Best & Friedrich, LLP, in Madison, is less concerned with whether the bar goes voluntary, and said the primary focus of the organization should be its members and how they can more effectively work with clients and the judiciary.

He suggests that leaders avoid spending energy and resources on politically divisive issues that do not directly impact the daily lives of attorneys and the public. Troupis conceded that entities like the Wisconsin Judicial Integrity Committee created by former President Thomas J. Basting Jr., spark constructive debate, but monitoring judicial elections is not necessarily a core responsibility of the bar.

Argument in 'State v. Ward'

On January 2, 2009 the Wisconsin Supreme Court published an updated oral argument Assignment for the Month of January 2009 [html | pdf] including:

January 8, 2009 10:45 a.m. State v. Ward (2007AP79-CR)
See Review granted in 'State v. Ward' and Synopsis of 'State v. Ward'

Argument in 'State v. Gajewski'

On January 2, 2009 the Wisconsin Supreme Court published an updated oral argument Assignment for the Month of January 2009 [html | pdf] including:

January 8, 2009 9:45 a.m. State v. Gajewski (2007AP1849-CR)
See Review granted in 'State v. Gajewski' and Synopsis of 'State v. Gajewski'

Court of Appeals opinions week of January 5, 2008

(linked from post title)


Wisconsin Law Journal current case digests

Review granted in 'Baldwin-Woodville Sch. v. West Central Ed.'

The Wisconsin Supreme Court on December 15, 2008 granted the petition to review the Court of Appeals decision in this case (2008AP519). The December 17, 2008 Table of Pending Cases [html | pdf] says the issues are:
Was the traditional application of the “perverse misconstruction” doctrine erroneously expanded by the Court of Appeals when it vacated an arbitration award by substituting its own analysis on the issue of “timeliness,” a classic issue of procedural arbitrability, for that of the arbitrator?

Whether courts may vacate arbitration awards under a perverse misconstruction standard where the parties gave the arbitrator the express arbitrability issue and where the parties were aware of the arbitral tradition of construing timeliness broadly in order to decide cases on the merits?

Wisconsin Supreme Court Accepts Three More Cases, by Jessica E. Slavin, Marquette University Law Faculty, December 26, 2008

Tuesday, January 6, 2009

Argument in 'Board of Attorneys Professional Responsibility (n/k/a Office of Lawyer Regulation) v. Jennings'

On January 2, 2009 the Wisconsin Supreme Court published an updated oral argument Assignment for the Month of January 2009 [html | pdf] including:

January 7, 2009 1:30 p.m. Board of Attorneys Professional Responsibility (n/k/a Office of Lawyer Regulation) v. Jennings (1992AP3208-D)

See Synopsis of 'Board of Attorneys Professional Responsibility (n/k/a Office of Lawyer Regulation) v. Jennings'

Police may search unarrested passenger’s belongings found outside car

Alex De Grand at State Bar of Wisconsin, December 30, 2008

See Decision in 'State v. Denk' 2008 WI 130

Order on appellate electronic filing, 2009 WI 4

Litigants leery of appellate court e-filing, by Jack Zemlicka, Wisconsin Law Journal, July 10, 2009


All out-of-state lawyers now waived in on proof of practice, among other rule changes, by By Alex De Grand, State Bar of Wisconsin, January 8, 2009


See First Steps Toward Electronic Filing in Wisconsin State Appellate Courts


The Wisconsin Supreme Court on January 6, 2009 issued an order [html |
pdf] requiring electronic filing of appellate briefs, no-merit reports, petitions for review and responses, effective July 1, 2009. 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)

Argument in 'Luckett. v. Bodner'

On January 2, 2009 the Wisconsin Supreme Court published an updated oral argument Assignment for the Month of January 2009 [html | pdf] including:

January 7, 2009 10:45 a.m. Luckett. v. Bodner (2007AP308)
See Review granted in 'Luckett v. Bodner' and Synopsis of 'Luckett. v. Bodner'

Order permitting admission without reciprocity, 2009 WI 3

The Wisconsin Supreme Court on January 6, 2009 issued an order [html | pdf] amending SCR 40.05, effective January 1, 2009.
Concurrence and dissent by Justice Prosser


The State Bar did what?, by David Ziemer, Wisconsin Law Journal, January 19, 2009


Admission eased for out-of-state attorneys, by David Ziemer, Wisconsin Law Journal, January 16, 2009


All out-of-state lawyers now waived in on proof of practice, among other rule changes, by By Alex De Grand, State Bar of Wisconsin, January 8, 2009


See Supreme Court agrees with BBE petition – reciprocity not always equal – new rule for lawyers not licensed to practice in Wisconsin coming soon


In the matter of amendment to Supreme Court Rule (SCR) 40.05 relating to admitting lawyers upon proof of practice elsewhere (08-07)

Order permitting citing unpublished Court of Appeals opinions, 2009 WI 2

The Wisconsin Supreme Court, Justice Bradley dissenting, on January 6, 2009 issued an order [html | pdf] amending Wis. Stat. sec. 809.23 effective July 1, 2009.
Judicial Council Note, 2008: Section (3) was revised to reflect that unpublished Wisconsin appellate opinions are increasingly available in electronic form. This change also conforms to the practice in numerous other jurisdictions, and is compatible with, though more limited than, Fed. R. App. P. 32.1, which abolished any restriction on the citation of unpublished federal court opinions, judgments, orders, and dispositions issued on or after January 1, 2007. The revision to Section (3) does not alter the non-precedential nature of unpublished Wisconsin appellate opinions.

All out-of-state lawyers now waived in on proof of practice, among other rule changes, by By Alex De Grand, State Bar of Wisconsin, January 8, 2009

See Supreme Court adopts concept to cite unpublished opinions for persuasive value; adopts rules making reporting CLE credits easier, In the matter of the amendment of Wis. Stat. s. (Rule) 809.23 regarding citation to unpublished opinions (08-02)

Order on notices on CLE noncompliance and reinstatement, 2009 WI 1

The Wisconsin Supreme Court on January 6, 2009 issued an order [html | pdf] amending SCR 31.10(1) and 31.11(1)(b) effective January 6, 2009.

All out-of-state lawyers now waived in on proof of practice, among other rule changes, by By Alex De Grand, State Bar of Wisconsin, January 8, 2009

See Wisconsin Supreme Court adopts BBE petitions relating to noncompliance, suspension, reinstatement, and more, In the matter of the amendment of Supreme Court Rules 31.10(1) and 31.11 regarding notices of noncompliance with continuing legal education requirements and reinstatement (08-05)

Argument in 'Polsky v. Virnich'

On January 2, 2009 the Wisconsin Supreme Court published an updated oral argument Assignment for the Month of January 2009 [html | pdf] including:

January 7, 2009 9:45 a.m. Polsky v. Virnich (2007AP203)


Case could rewrite corporate law in Wisconsin, by Ryan J. Foley of the Associated Press at The Captital Times
(via WisOpinion)

See Certification accepted in 'Polsky v. Virnich' and Synopsis of 'Polsky v. Virnich'

Review granted in 'State v. McClaren'

The Wisconsin Supreme Court on December 10, 2008 granted the petition to review the Court of Appeals decision, 2008 WI App 118, in this case (2007AP2382-CR). The December 15, 2008 Table of Pending Cases [html | pdf] says the issues are:
May a trial court order a criminal defendant who seeks to support a claim of self-defense with evidence of the complainant’s prior violent acts to make pretrial disclosure of such evidence to the state?

If a trial court in Wisconsin may order pretrial disclosure of evidence proffered under McMorris v. State, 58 Wis. 2d 144, 205 N.W.2d 559 (1973), what sanctions may it use to enforce such order?

Wisconsin Supreme Court Accepts Six New Cases, Will Consider Constitutionality of Hate-Crime Penalty Enhancer, by Jessica E. Slavin, Marquette University Law Faculty, December 19, 2008

Monday, January 5, 2009

Argument in 'Harvot v. Solo Cup Company'

On January 2, 2009 the Wisconsin Supreme Court published an updated oral argument Assignment for the Month of January 2009 [html | pdf] including:

January 6, 2009 1:30 p.m. Harvot v. Solo Cup Company (2007AP1396)
See Certification accepted in 'Harvot v. Solo Cup Company' and Synopsis of 'Harvot v. Solo Cup Company'

Timing is everything for retirement benefit, supreme court holds.

Alex De Grand at State Bar of Wisconsin, December 30, 2008

See Decision in 'Loth v. City of Milwaukee' 2008 WI 129

Argument in 'State ex rel. Robins v. Madden'

On January 2, 2009 the Wisconsin Supreme Court published an updated oral argument Assignment for the Month of January 2009 [html | pdf] including:

January 6, 2009 10:45 a.m. State ex rel. Robins v. Madden (2007AP1526-W)

Supreme Court looks at judicial discretion with John Doe petition, by Tony Anderson, Wisconsin Law Journal, January 6, 2009

See Review granted in 'Robins v. Madden' and Synopsis of 'State ex rel. Robins v. Madden'

Argument in 'Notz v. Everett Smith Group, Ltd.'

On January 2, 2009 the Wisconsin Supreme Court published an updated oral argument Assignment for the Month of January 2009 [html | pdf] including:

January 6, 2009 9:45 a.m. Notz v. Everett Smith Group, Ltd. (2006AP3156)
See Review granted in 'Notz v. Everett Smith Group, Ltd.' and Synopsis of 'Notz v. Everett Smith Group, Ltd.'

No More "This Week"

Ed Whelan at Bench Memos.
For various reasons, I’ve decided to recast “This Week in Liberal Judicial Activism” as “This Day in Liberal Judicial Activism”. As the recasting indicates, instead of having one weekly post, I’ll have frequent daily posts. I’ll also continue to add new material.

Mr. Whelan was the featured speaker at our chapter event "Judicial Confirmations in the New Senate" March 8, 2007.

Review granted in 'Biskupic v. Cicero'

The Wisconsin Supreme Court on December 10, 2008 granted the petition to review the Court of Appeals decision, 2008 WI App 117, in this case (2007AP2314). The December 15, 2008 Table of Pending Cases [html | pdf] says the issues are:
Based on the applicable case law, and considering the evidence in the light most favorable to the non-moving party (the petitioner), were the defendants entitled to summary judgment?

For purposes of the debate reported in the August 23, 2004 newspaper article, was the petitioner a “limited-purpose” public figure?

Was the plaintiff entitled to a sanction against the newspaper defendants or a jury instruction on spoliation based on the destruction of reporter’s interview notes subsequent to the newspaper defendants being placed on notice of potential libel litigation?

Newly Accepted Civil Cases at Wisconsin Supreme Court, Including Biskupic Slander Case, by Jessica E. Slavin, Marquette University Law Faculty, December 19, 2008

Slander and libel case goes to high court, by Tony Anderson, Wisconsin Law Journal, December 19, 2008

Sunday, January 4, 2009

Argument assigned for January 2009

On January 2, 2009 the Wisconsin Supreme Court published an updated oral argument Assignment for the Month of January 2009 [html | pdf].

January 6, 2009

9:45 a.m. Notz v. Everett Smith Group, Ltd. (2006AP3156)
See Review granted in 'Notz v. Everett Smith Group, Ltd.' and Synopsis of 'Notz v. Everett Smith Group, Ltd.'

10:45 a.m. State ex rel. Robins v. Madden (2007AP1526-W)
See Review granted in 'Robins v. Madden' and Synopsis of 'State ex rel. Robins v. Madden'

1:30 p.m. Harvot v. Solo Cup Company (2007AP1396)
See Certification accepted in 'Harvot v. Solo Cup Company' and Synopsis of 'Harvot v. Solo Cup Company'

January 7, 2009

9:45 a.m. Polsky v. Virnich (2007AP203)
See Certification accepted in 'Polsky v. Virnich' and Synopsis of 'Polsky v. Virnich'

10:45 a.m. Luckett. v. Bodner (2007AP308)
See Review granted in 'Luckett v. Bodner' and Synopsis of 'Luckett. v. Bodner'

1:30 p.m. Board of Attorneys Professional Responsibility (n/k/a Office of Lawyer Regulation) v. Jennings (1992AP3208-D)
See Synopsis of 'Board of Attorneys Professional Responsibility (n/k/a Office of Lawyer Regulation) v. Jennings'

January 8, 2009

9:45 a.m. State v. Gajewski (2007AP1849-CR)
See Review granted in 'State v. Gajewski' and Synopsis of 'State v. Gajewski'

10:45 a.m. State v. Ward (2007AP79-CR)
See Review granted in 'State v. Ward' and Synopsis of 'State v. Ward'


"In addition to the cases listed above, the following cases will be decided by the court based upon the submission of briefs without oral argument:"

Office of Lawyer Regulation v. Hurley (2007AP478-D)

Office of Lawyer Regulation v. Ginsberg (2007AP2351-D)

Office of Lawyer Regulation v. Osicka (2006AP2931-D)


Supreme Court pending rules petitions and audio include:

January 22, 2009

10:00 a.m. In the matter of the adoption of procedures for original action cases involving state legislative redistricting (02-03) open administrative conference
See Hearing set on Original Actions for Redistricting