Argument in 'Board of Attorneys Professional Responsibility v. Schlieve'

On April 30, 2009 the Wisconsin Supreme Court published an updated oral argument Assignment for the Month of May 2009 [html | pdf] including:


May 1, 2009

9:45 a.m. Board of Attorneys Professional Responsibility v. Schlieve (1997AP3862-D)

Update: On April 30, 2009 the Wisconsin Supreme Court published a second updated oral argument Assignment for the Month of May 2009 [html | pdf] rescheduling this hearing to May 14, 2009 8:45 a.m..

Argument in 'Office of Lawyer Regulation v. Reitz'

On April 30, 2009 the Wisconsin Supreme Court published an updated oral argument Assignment for the Month of May 2009 [html | pdf] including:


May 1, 2009

9:45 a.m. Office of Lawyer Regulation v. Reitz (2007AP2935-D)

Decision in 'State v. Tody' 2009 WI 31

The Wisconsin Supreme Court today issued its decision in this case (2007AP400-CR) reversing the Court of Appeals.
Opinion by Chief Justice Abrahamson, with Justices Bradley, Crooks, and Roggensack

¶5 ...the defendant was deprived of his right under the Sixth Amendment to the United States Constitution and Article I, Section 7 of the Wisconsin Constitution to be tried by an impartial jury and accordingly reverse the conviction and order a new trial. A presiding judge's mother serving as a juror is a special circumstance so fraught with the possibility of bias that we must find objective bias regardless of the particular juror's assurances of impartiality.[footnote omitted]

Concurrence by Justice Prosser

¶55 I cannot join an opinion that seeks to transform a questionable example of "objective bias" into a per se violation of the Sixth Amendment.

Concurrence by Justice Ziegler, with Justice Prosser

¶66 ... the combination of these two people and the concern it produces does not square with objective juror bias as the lead opinion would have us believe. ...

¶67 I concur because I believe the judge should have either stricken his mother from the jury or recused himself from the case.

Justice Gableman did not participate

See Argument in 'State v. Tody'.


Judge should not have seated his mother on jury, by David Ziemer, Wisconsin Law Journal, May 6, 2009


And Now, The Rest Of The Judge's-Mother-On-The-Jury Story, by Anne Reed, Wisconsin Law Journal, May 1, 2009


Wisconsin Supreme Court says judge’s mom should not sit on jury but disagree why, by Alex De Grand, State Bar of Wisconsin

Supreme Court accepts five new cases

Press release from the Wisconsin Court System, April 27, 2009


The cases accepted are:

Jackson v. Buchler (2006AP948)
See Review granted in 'Jackson v. Buchler'

Brunton v. Nuvell Credit Corp. (2007AP1253)
See Review granted in 'Brunton v. Nuvell Credit Corp.'

Johnson Controls v. London Market (2007AP1868)
See Certification accepted in 'Johnson Controls, Inc. v. London Market'

Solowicz v. Forward Geneva National (2008AP10)
See Review granted in 'Solowicz v. Forward Geneva National'

Bank Mutual v. S.J. Boyer Const. (2008AP912)
See Review granted in 'Bank Mutual v. S.J. Boyer Construction, Inc.'


Among the cases not accepted are:

Estate of Reif v. Automotive & Truck Svcs. (2007AP2582)
Justices Roggensack and Ziegler dissent.

State v. Wilk (2007AP2628-CR)
Chief Justice Abrahamson and Justice Bradley dissent.

City of Milwaukee v. NL Industries (2007AP2873 )
Chief Justice Abrahamson dissents.


Update: Wisconsin Supreme Court Accepts Five New Cases for Review, Including Challenge to a Prison Discliplinary Action, by Jessica E. Slavin, Marquette University Law Faculty Blog, April 29, 2009

Order remands admission of foreign law grads to BBE

The Wisconsin Supreme Court today issued an order [html | pdf] in this rules matter.

Having signaled its intent to proceed with the development of a rule that will permit graduates of foreign law schools to sit for the Wisconsin bar examination, the majority of the court now urges the BBE to consider requests for waiver under SCR 40.10 submitted by graduates of foreign law schools.

Dissent by Justice Bradley

This interim order fails to provide adequate guidance to BBE because it lacks sufficient criteria for evaluating such waiver requests.

In the matter of creation of Supreme Court Rule 40.055 Relating to Admitting Graduates of Law Schools in Other Nations (08-09)


See Supreme Court supports BBE discretion for foreign attorneys

Decision in 'Notz v. Everett Smith Group, Ltd.' 2009 WI 30

The Wisconsin Supreme Court today issued its decision in this case (2006AP3156) affirming in part and reversing in part the Court of Appeals, 2008 WI APP 84.
Opinion by Justice Crooks, with Chief Justice Abrahamson, and Justices Prosser and Gableman

¶4 ... We agree with the court of appeals that the claims of harm alleged--the loss of a corporate opportunity and the sale of a subsidiary with high growth potential--caused harm primarily to the corporation, and thus we affirm the dismissal of Notz's direct claim of breach of fiduciary duty as to those allegations. On the cross-appealed issue, we also agree with the court of appeals that the majority shareholder's appropriation of the due diligence paid for by the corporation resulted in a constructive dividend to the majority shareholder because it received a benefit at the expense of the minority shareholders. ...

¶5 ... Wisconsin Stat. § 180.1106(1)(d) is straightforward in its requirement that a pending claim "may be continued as if the merger did not occur." Notz's judicial dissolution claim, initiated prior to the merger, alleged harm to that shareholder, not to the corporation. Because the statute precludes a merger from operating to strip such a claimant of the right to pursue a pending action, such as his direct action here, and because we find persuasive support for that position, we reverse the court of appeals' decision on that issue.

Concurrence by Justice Roggensack

¶43 ... His [Notz's] dissenter's rights claim is pending in a federal court action, where the fair value of his ATS shares is being adjudicated.[footnote omitted]

¶44... Accordingly, when this case is returned to the circuit court, if grounds for dissolution are proved, the determination of what, if anything, will be paid to Notz must await the federal court's determination of the fair value because Notz is not entitled to be paid twice for the fair value of his interest in ATS.

Concurrence and dissent by Justice Bradley

¶63 ... Notz states a direct claim for breach of fiduciary duty arising out of the defendants' usurpation of a corporate opportunity. The defendants breached their fiduciary duty to minority shareholders by using their position of trust to further their private interest. Unlike the majority shareholders, Notz was denied continued participation in a thriving growth industry. This injury was unique to him.

¶64 Further, I conclude that the majority fails to articulate and apply a consistent analysis. It provides no principled distinction justifying the disparate treatment of the two breach of fiduciary duty claims.

Justice Ziegler did not participate


Wisconsin Supreme Court distinguishes breach of duty to minority shareholders, by Alex De Grand, State Bar of Wisconsin, April 29, 2009


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

Review granted in 'Bank Mutual v. S.J. Boyer Construction, Inc.'

The Wisconsin Supreme Court on April 14, 2009 granted the petition to review the Court of Appeals decision, 2009 WI App 14, in this case (2008AP912). The Table of Pending Cases (Updated April 16, 2009) [html | pdf] says the issues are:

Does a commercial mortgage holder’s exercise of the right to obtain a shortened redemption period under §846.103(2) require it to forfeit rights against a guarantor of payment because the guarantor is a “… party who is personally liable for the debts secured by the mortgage” under the statute?

Can a guarantor of payment contractually waive an objection to, and consent to, a mortgage holder’s election under §846.103(2) such that all rights against the guarantor are retained?

Bradley Foundation

The Bradley Foundation has awarded one of its four 2009 Bradley Prizes to the Federalist Society.

"The Bradley Foundation selected the founders and leaders of the Federalist Society for their ingenuity in forming and nurturing an organization dedicated to preserving rule of law," said Michael W. Grebe, the Foundation's president and chief executive officer. "The Federalist Society has become a vital resource in American legal education."

Voluntary bar candidate captures presidency, again

Jack Zemlicka in the Wisconsin Law Journal, April 28, 2009

A membership survey issued by the State Bar of Wisconsin this year revealed that 57 percent of respondents favored a move to a voluntary bar.

[State Bar President Diane] Diel said that she and others bar leaders are in the process of reviewing the results of the survey. She also noted that the Bar’s Membership Committee will meet on May 5 to discuss the next step in the process.

One of the primary issues Boll said the committee needs to discuss is the financial impact moving to a voluntary bar would have on the organization.

“I hope they look at the cost structure if we lose 20 to 30 percent of membership,” Boll said.

See State Bar president-elect post goes to James C. Boll...

Justice Thomas' concurrence in FCC v. Fox

Decision in 'State v. Fernandez' 2009 WI 29

The Wisconsin Supreme Court today issued its decision in this case (2007AP1403-CR) affirming the Circuit Court on certification from the Court of Appeals.
Opinion by Justice Crooks, with Justices Prosser, Roggensack, Ziegler, and Gableman

¶2 ... [Wis. Stat. §973.20] when read as a whole, clearly permits a circuit court to order full restitution so long as it properly considers the defendant's ability to pay in setting the total restitution and, where applicable, in setting the amount that must be paid during any probation, parole, or extended supervision. The statute gives no indication that that power is curtailed when probation is involved.
...
¶62 It is within the court's discretion to award restitution to insurers. Evidence was submitted as to the costs which both insurers had borne for the victims. [footnote omitted]

Dissent by Justice Bradley, with Chief Justice Abrahamson

¶ 65 ... Wis. Stat. § 973.20(5)(d) requires that the court distinguish between crime victims and insurers. The statute provides that the sentencing court must order restitution to crime victims. However, an order for restitution to an insurer is discretionary, and is to be awarded only "[i]f justice so requires." [footnote omitted]

Restitution can survive sentence: Court need not determine ability to pay, by David Ziemer, Wisconsin Law Journal, April 29, 2009


Criminal defendant can pay restitution after expiration of sentence, by Alex De Grand, State Bar of Wisconsin, April 29, 2009

Court of Appeals opinions week of April 27, 2009

(linked from post title)

Wisconsin Law Journal current case digests

Review granted in 'Solowicz v. Forward Geneva National'

The Wisconsin Supreme Court on April 14, 2009 granted the petition to review the Court of Appeals decision, 2009 WI App 9, in this case (2008AP10). The Table of Pending Cases (Updated April 16, 2009) [html | pdf] says the issues are:

Has Wisconsin law changed so that a clear and specific restrictive covenant need not be reasonable?

May a restrictive covenant governing condominiums create developer control exceeding that allowed by Wisconsin’s Condominium Act?

Are the restrictive covenant’s terms, which have been redefined outside the restrictive covenant, ambiguous?

Is a provision granting a developer unlimited control over condominiums reasonable under Wisconsin law?

New law restores a consumer safeguard for Wisconsin homebuyers

Our State Bar on 2009 Wisconsin Act 4

The State Bar’s Real Property, Probate & Trust Section supported the legislation.

See Tort actions in residential real estate transactions

State Bar president-elect post goes to James C. Boll...

Our State Bar announced election results, including Mr. Boll's for president-elect.

I am looking forward to working with President-Elect Kammer, President Diel, and the Board of Governors to improve Bar services, achieve better communication with Bar members, and involve more members in our organization. In addition, I hope all members of our organization will support an open and honest debate about the mandatory versus voluntary Bar membership issue.

Petition filed on electronic discovery

On April 23, 2009 the Wisconsin Judicial Council filed a Petition with the Wisconsin Supreme Court.

The proposed amendments contained herein are adapted from the Uniform Rules on the Discovery of Electronically Stored Information and the 2006 amendments to the Federal Rules of Civil Procedure.

In re: Proposed Amendments to Wisconsin Statutes 802.10, 804.08, 804.09, 804.12, and 805.07 (09-01)

Certification accepted in 'Johnson Controls, Inc. v. London Market'

The Wisconsin Supreme Court on April 14, 2009 accepted the Court of Appeals certification, in this case (2007AP1868). The Table of Pending Cases (Updated April 16, 2009) [html | pdf] says the issues are:

Should a duty to defend be imported from an underlying umbrella insurance policy into an excess umbrella liability policy by language in the excess policy stating that it is subject to the same terms, definitions, exclusions and conditions as the underlying policy “except as otherwise provided”?

Is the excess liability carrier’s duty to defend primary in nature, such that it may be triggered even if the excess policy expressly requires exhaustion of the underlying policy as a precondition to liability and the underlying policy has not been exhausted?

Review granted in 'Brunton v. Nuvell Credit Corp.'

The Wisconsin Supreme Court on April 14, 2009 granted the petition to review the Court of Appeals decision, 2009 WI App 3, in this case (2007AP1253). The Table of Pending Cases (Updated April 16, 2009) [html | pdf] says the issue is:

In a case arising out of a consumer credit transaction, when is a Defendant deemed to have waived a challenge of improper venue under Wis. Stat. §421.401 – the Wisconsin Consumer Act’s venue provision?

I feel pity

Somewhere in this country, a federal agent who used to track a suspected Al-Qaeda terrorist has been assigned to monitor my articles on esoteric issues on Wisconsin civil procedure.

Federalism Amendment

A proposal by Professor Randy Barnett for a constitutional amendment to restore its original meaning.

Review granted in 'Jackson v. Buchler'

The Wisconsin Supreme Court on April 14, 2009 granted the petition to review the Court of Appeals decision, in this case (2006AP948). The Table of Pending Cases (Updated April 16, 2009) [html | pdf] says the issues are:

Was the petitioner denied a fair and impartial decision maker in violation of due process and equal protection of law under the Fifth and Fourteenth Amendments to the United States Constitution and Art. I, § 9 of the Wisconsin Constitution?

Did the petitioner fail to exhaust his administrative remedies concerning his claim that he was unconstitutionally denied the opportunity to review a videotape, and if he has failed to exhaust his administrative remedies, may the court nonetheless decide the issues set forth in the petition for review and listed below? See Wis. Stat. §801.02(7)(b); Wis. Admin. Code §DOC 310.05; State ex rel. Hensley v. Endicott, 2001 WI 105, 245 Wis. 2d 607, 629 N.W.2d 686; State ex rel. Smith v. McCaughtry, 222 Wis. 2d 68, 586 N.W.2d 63 (Ct. App. 1998); Santiago v. Ware, 205 Wis. 2d 295, 556 N.W.2d 356 (Ct. App.), rev. denied, 207 Wis. 2d 284, 560 N.W.2d 273 (1996).

Does the obligation of governmental authorities to produce exculpatory information, as set forth in Brady v. Maryland, 373 U.S. 83 (1963), and its progeny, apply to all or some prison disciplinary proceedings, and, in particular, to the disciplinary proceeding against the petitioner? See, e.g., Wolff v. McDonnell, 418 U.S. 539 (1974); Piggie v. Cotton, 344 F.3d 674 (7th Cir. 2003); State ex rel. Ortega v. McCaughtry, 221 Wis. 2d 376, 585 N.W.2d 640 (Ct. App. 1998).

If there is an obligation on governmental authorities to produce potentially exculpatory information, what should be the process for determining whether the information sought is exculpatory and what should be the remedy for the failure to produce it?

Was the petitioner deprived of due process and equal protection of the law under the Fifth and Fourteenth Amendments to the United States Constitution and Art. I, § 9 of the Wisconsin Constitution when he was denied the right to obtain a videotape that he contends is exculpatory evidence?

Was the petitioner deprived of due process and equal protection when there was insufficient evidence of his guilt, as he contends?

Earth Day

In honor of Lenin's birthday, otherwise known as Earth Day, I'm posting a picture of a beautiful, V8, 5.7 liter, rear-wheel drive, gas guzzling Buick Roadmaster.

Imagine That

A routine traffic arrest is not grounds for police conducting a search of the suspect's car, after he has been handcuffed and locked in the squad car.

Tort actions in residential real estate transactions

2009 Wisconsin Act 4, effective tomorrow, creates Wis. Stat. § 895.10, reversing the decision in 'Below v. Norton' 2008 WI 77

New law restores a consumer safeguard for Wisconsin homebuyers, State Bar of Wisconsin, April 22, 2009

Argumentum sub ubi

Justice Stephen Breyer at yesterday's U.S. Supreme Court hearing in Safford Unified School District v. Redding (via Althouse)

Review granted in 'State v. Smith'

The Wisconsin Supreme Court on March 18, 2009 granted the petition to review the Court of Appeals decision, 2009 WI App 16, in this case (2008AP1011-CR). The Table of Pending Cases (Updated April 16, 2009) [html | pdf] says the issue is:

Does Wis. Stat. §801.54, which requires persons convicted of non-sexual crimes to register as sex offenders, violate the substantive due process and equal protection clauses of the United States and Wisconsin constitutions?

See Synopsis of 'State v. Smith'

Argument in 'Zellner v. Herrick'

On January 23, 2009 the Wisconsin Supreme Court published an oral argument Assignment for the Month of April 2009 [html | pdf] including:

April 22, 2009 1:30 p.m. Zellner v. Herrick (2007AP2584)

See Review granted in 'Zellner v. Herrick' and Synopsis of 'Zellner v. Herrick'

Argument assigned for May 2009

On April 13, 2009 the Wisconsin Supreme Court published an oral argument Assignment for the Month of May 2009 [html | pdf].


May 1, 2009 9:45 a.m.

Office of Lawyer Regulation v. Reitz (2007AP2935-D)

Board of Attorneys Professional Responsibility v. Nancy A. Schlieve (1997AP3862-D)


May 4, 2009 10:00 a.m.

Office of Lawyer Regulation v. Anderson (2007AP2617-D)

Office of Lawyer Regulation v. Nunnery (2006AP1191-D and 2007AP1908-D)


On April 10, 2009 the Wisconsin Court of Appeals published an updated Oral Argument Schedule.


May 19, 2009 9:30 a.m. at Dist. II, 2727 North Grandview Blvd., Waukesha

State v. Tarrant (2008AP1736-CR)


May 21, 2009 10:00 a.m. at Dist. I, 633 W. Wisconsin Ave., #1400, Milwaukee

Konkel v. Acuity (2008AP2156)


May 28, 2009 10:00 a.m. at Dist. I, 633 W. Wisconsin Ave., #1400, Milwaukee

Donaldson v. West Bend Mutual Insurance Company (2008AP2289)

Argument in 'State v. Lange'

On January 23, 2009 the Wisconsin Supreme Court published an oral argument Assignment for the Month of April 2009 [html | pdf] including:

April 22, 2009 10:45 a.m. State v. Lange (2008AP882-CR)

See Review granted in 'State v. Lange' and Synopsis of 'State v. Lange'

Argument in 'Osborn v. Dennison'

On January 23, 2009 the Wisconsin Supreme Court published an oral argument Assignment for the Month of April 2009 [html | pdf] including:

April 22, 2009 9:45 a.m. Osborn v. Dennison (2007AP1799)

See Review granted in 'Osborn v. Dennison' and Synopsis of 'Osborn v. Dennison'

2010 US News Rankings Leaked

April 20, 2009 at Law School Headlines

Wisconsin moves up one into a four-way tie for 35th.

Marquette moves up eight into a seven-way tie for 87th.

(via Althouse)

Court of Appeals opinions week of April 20, 2009

(linked from post title)


Wisconsin Law Journal current case digests

Open carry, in itself, not disorderly conduct

Wisconsin Attorney General J.B. Van Hollen's April 20, 2009 Advisory Memorandum to District Attorneys, Deputy District Attorneys and Assistant District Attorneys on "The Interplay Between Article I, § 25 Of The Wisconsin Constitution, The Open Carry Of Firearms And Wisconsin’s Disorderly Conduct Statute, Wis. Stat. § 947.01"

The Department believes that mere open carry of a firearm, absent additional facts and circumstances, should not result in a disorderly conduct charge.

Review granted in 'State v. Allen'

The Wisconsin Supreme Court on March 18, 2009 granted the petition to review the Court of Appeals decision, in this case (2007AP795). The Table of Pending Cases (Updated April 16, 2009) [html | pdf] says the issues are:

Where a defendant fails to raise a potential claim in response to a no-merit report, what additional showing, if any, is necessary to constitute “sufficient reason” authorizing that defendant to raise the claim in a subsequent motion under Wis. Stat. §974.06?

Does requiring a defendant to respond to a no-merit report with arguable claims that were overlooked by appointed counsel and barring the defendant from ever raising any claim not so raised, conflict with the right to counsel on direct appeal?

See Synopsis of 'State v. Allen'

Review granted in 'Pawlowski v. American Family Mut. Ins. Co.'

The Wisconsin Supreme Court on March 17, 2009 granted the petition to review the Court of Appeals decision, 2009 WI App 7, in this case (2007AP2651). The Table of Pending Cases (Updated April 16, 2009) [html | pdf] says the issues are:

Was the defendant a “keeper” of the dog who bit the plaintiff and therefore subject to liability under Wis. Stat. §174.02 at the time of the plaintiff’s injury where the dog’s owner had control of the animal?

Does public policy dictate against finding the defendant liable for the injuries inflicted by the dog where the dog was still under the control of its legal owner at the time it bit the plaintiff?

See Synopsis of 'Pawlowski v. American Family'

Synopsis of 'State v. Smith'

(2008AP1011-CR) See Supreme Court accepts three new cases

In this case, the Supreme Court is asked to review the constitutionality of requiring a person convicted of a crime with no sexual component to register as a sex offender.

Some background: In 2001, James W. Smith was convicted of false imprisonment of a minor victim as party to a crime. There is no dispute that the crime did not have any sexual component. The record indicates that Smith and other individuals falsely imprisoned the victim and threatened him with a gun in a dispute over a drug debt.

Smith pleaded no contest to false imprisonment and theft, and he was required under Wis. Stat. §301.45 to register as a sex offender.

In 2005, Smith was charged with failing to provide an annual update and respond to written requests from the state Department of Corrections. Smith moved to dismiss the charges, claiming §301.45 is unconstitutional because it is overbroad, denied equal protection, and violated substantive due process because it lacked a rational basis when applied to his circumstances.

Smith’s motion was denied, and he pled guilty. He was sentenced to one year initial confinement and one year extended supervision. Smith appealed, and the Court of Appeals [2009 WI App 16] affirmed.

The Court of Appeals said due process protects against government action that either shocks the conscience or interferes with rights implicit in the concept of ordered liberty. The Court of Appeals said Smith only raised an “as applied,” and not facial challenge to the statute. He had the burden of showing beyond a reasonable doubt that §301.45 as applied to him was unconstitutional and Smith did not meet that burden, the Court of Appeals concluded.

Smith raises questions of due process and equal protection. He argues being labeled a sex offender damages his reputation and restricts his right to privacy, his choice of residency, and employment. He notes that many local jurisdictions are creating or have already created restrictions on a person’s ability to reside in certain locations if they are registered as a sex offender.

The state says Smith has not identified a fundamental liberty interest being infringed upon. The Court of Appeals correctly recognized that including false imprisonment of a minor as a sex offender furthers the goal of protecting children from violence, the state contends. In addition, the state argues a sex offense is defined under §301.45 to include the crime of false imprisonment of a minor.

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

From Brown County.

In-house Counsel

We can't let a silly little thing like the constitutional right to counsel of one's choice get in the way of our counterproductive employment discrimination laws now, can we?

Supreme Court pending cases April 16, 2009

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

Added the granting of petitions for review in [Jackson v. Buchler] 2006AP948, [Brunton v. Nuvell Credit Corp.] 2007AP1253, [Solowicz v. Forward Geneva National] 2008AP10, and [Bank Mutual v. S.J. Boyer Construction, Inc.] 2008AP912, and certification in [Johnson Controls, Inc. v. London Market] 2007AP1868.

State Supreme Court hears arguments on open records

by Stacy Forster, Milwaukee Journal Sentinel, posted April 15, 2009

See Argument in 'Milwaukee Journal Sentinel v. Department of Administration'

A Limp as Permanent Disfigurement

by Steven Snedeker, Hills Legal Group, Ltd, Waukesha, and republished with permission.


The Wisconsin Supreme Court addressed what constitutes permanent disfigurement for purposes of worker’s compensation. In County of Dane v. LIRC, 2009 WI 9, [see Decision in 'County of Dane v. Labor and Industry Review Commission' 2009 WI 9] the employee had no visible burns, scars or amputations but did use a cane and had a pronounced foot-dragging limp. The high court found that the limp was a permanent disfigurement under the statute.

The employee sustained a significant knee injury when her leg was twisted behind her back. She underwent arthroscopic surgery and other procedures to repair the knee. The recovery did not go well and she required a cane to walk and even then it was with a foot-dragging limp. The employer denied that the worker was entitled to additional compensation for a permanent disfigurement pursuant to §102.56(1):

If an employee is so permanent disfigured as to occasion potential wage loss, the department may allow such sum as it deems just as compensation therefore. . .Consideration for disfigurement allowance is confined to those areas of the body that are exposed in the normal course of employment. The department shall also take into account the appearance of the disfigurement, its location, and the likelihood of its exposure in occupations for which the employee is suited.

The court found that LIRC’s interpretation of the statute was reviewed with no deference. The court was to construe the statute itself. The court first looked to Webster for the definition of disfigure. The dictionary definition was “to make less complete, perfect, or beautiful in appearance” and disfigurement as “the state of being disfigured.” Black’s Law Dictionary contained similar definitions. The court concluded that the plain meaning of the statute encompassed an impairment that significantly affects the appearance of a person. The court found that the Administrative Law Judge’s finding that the employee’s severe limp, foot-drag and the fact that her legs looked imperfect and asymmetrical constituted a disfigurement.

The next step was to determine whether this disfigurement was of such an extent that it occasioned a potential wage loss. Again, the court turned to the ALJ’s findings. It was determined that the look of the worker’s legs and her altered gait will negatively affect her potential employability. In fact, it was undisputed that several potential employers had refused to hire the employer due to her disfigurement. Therefore, the employee had fulfilled the statutory requirements and was entitled to compensation.

Argument in 'State v. Welda'

On January 23, 2009 the Wisconsin Supreme Court published an oral argument Assignment for the Month of April 2009 [html | pdf] including:

April 16, 2009 1:30 p.m. State v. Welda (2007AP2024-CR)

See Review granted in 'State v. Welda' and Synopsis of 'State v. Welda'

Philip Howard "Life Without Lawyers" April 15, 2009

Philip K. Howard will speak on the subject of his recent book Life Without Lawyers: Liberating Americans from Too Much Law at a noon luncheon Wednesday, April 15, 2009, at the Milwaukee Athletic Club, 758 North Broadway. Reservations may be made by printing and completing the registration form and mailing with $20.00 to Federalist Society, c/o Dan Kelly, Suite 1700, 1000 North Water Street, Milwaukee, Wisconsin 53202, for receipt on or before April 13, 2009. There will be a $25.00 charge at the door for those without reservations. Seating is limited. Refunds cannot be given to those who choose not to attend.

Mr. Howard is a well-known leader of legal reform in America. In addition to Life Without Lawyers (Norton 2009), he is the author of the best-seller The Death of Common Sense (Random House, 1995) and The Collapse of the Common Good (Ballantine, 2002), and he is a periodic contributor to the op-ed pages of The New York Times, The Wall Street Journal, and The Washington Post. He advises leaders of both parties on legal and regulatory reform issues, and wrote the introduction to Vice President Al Gore’s book Common Sense Government. A practicing lawyer, Howard is a partner in the law firm Covington & Burling LLP.

In 2002, Howard founded Common Good, a national bipartisan coalition organized to restore common sense to American public life. The Advisory Board of Common Good is composed of leaders from a broad cross-section of American political thought including, among others, former Senators Howard Baker, Bill Bradley, George McGovern and Alan Simpson. With the cooperation of a number of nonprofit organizations, Howard recently founded NewTalk, an online forum of thought leaders.

Howard has long been a civic leader in New York. He is Chair of the Committee that installed the "Tribute in Light" Memorial for those who died on September 11th. He is also Chair-Emeritus of the Municipal Art Society of New York, a leading civic group that spearheaded initiatives to preserve Grand Central Terminal.

Howard grew up in Eastern Kentucky, the son of a minister, and lives in Manhattan with his wife Alexandra. They have four children.

Presented by the Milwaukee Lawyers Chapter.


Update: review by Anthony Lewis in The New York Review of Books, April 9, 2009, Shall We Get Rid of the Lawyers?

Argument in 'Baldwin-Woodville Area School Dist. v. West Central Education Assoc.'

On January 23, 2009 the Wisconsin Supreme Court published an oral argument Assignment for the Month of April 2009 [html | pdf] including:

April 16, 2009 10:45 a.m. Baldwin-Woodville Area School Dist. v. West Central Education Assoc. (2008AP519)

See Review granted in 'Baldwin-Woodville Sch. v. West Central Ed.' and Synopsis of 'Baldwin-Woodville Area School Dist. v. West Central Education Assoc.'

Argument in 'Farmers Automobile Insurance Association v. Union Pacific Railway Company'

On January 23, 2009 the Wisconsin Supreme Court published an oral argument Assignment for the Month of April 2009 [html | pdf] including:

April 16, 2009 9:45 a.m. Farmers Automobile Insurance Association v. Union Pacific Railway Company (2007AP1992)

See Review granted in 'Donaubauer v. The Farmers Auto Ins. Assoc.' and Synopsis of 'Donaubauer v. The Farmers Auto Ins. Assoc.'

Open records challenge among today’s oral arguments

Tony Anderson in the Wisconsin Law Journal, April 15, 2009, on the three cases scheduled for arguement in the Wisconsin Supreme Court today.

Synopsis of 'Pawlowski v. American Family'

(2007AP2651) See Supreme Court accepts three new cases

In this strict liability dog-bite case, the Supreme Court has been asked to review statutes and case law to help clarify statutory keeper provisions of Wis. Stat. §174.02.

Some background: After discussions among mutual friends, Walter Waterman and his two dogs moved into Nancy L. Seefeldt’s residence in June 2003, after Waterman lost his job and needed a place to live that allowed dogs. Seefeldt’s residence had a large backyard, and she already had two dogs of her own.

On Oct. 26, 2003, Seefeldt was home when Waterman opened the front door to go to the grocery store. The dogs immediately charged across the street with Waterman chasing behind and bit Colleen Pawlowski three times, resulting in 16 puncture wounds and soft tissue damage. Seefeldt testified in her deposition that Waterman always put the dogs in his car and took them with him when he left the house. She also testified she was unaware of the dog bite until after Waterman had returned from the grocery store.

Waterman subsequently moved out of Seefeldt’s home with his two dogs and could not be located for purposes of this litigation. Pawlowski and her husband sued Seefeldt and her insurance carrier, American Family Mutual Insurance Co.

Seefeldt and American Family moved for summary judgment on the grounds the Pawlowskis had failed to state a claim upon which relief could be granted because Seefeldt was not the “keeper” of the dogs at the time of the incident and was not a statutory owner subject to liability under §174.02.

The trial court granted summary judgment for the Seefeldts and American Family, concluding that at the moment the dog bit Pawlowski, the dog’s legal owner had control of the animal and thus Seefeldt was not a statutory keeper. The Court of Appeals [2009 WI App 7] reversed, concluding Seefeldt was a keeper under the statute, and that both a legal owner and statutory keeper can be simultaneously liable.

The Court of Appeals reasoned by permitting the dogs to reside at her home over a period of months, Seefeldt provided the dogs with both shelter and protection on an ongoing basis and therefore was a keeper within the meaning of the statute.

In asking the Supreme Court to review the case, Seefeldt and American Family note it is not uncommon for a dog owner to reside with other individuals. Specifically, they ask the Court to review if under §174.02, Seefeldt was a keeper of the dog at the time of the injury and whether public policy is contrary to the imposition of liability on Seefeldt.

The Pawlowskis contend the goal of the statute is to protect innocent third parties from injuries caused by a dog and the only way to do that is to place the responsibility on the person or persons who have control over the dog.

From Winnebago County.

Argument in 'Hocking v. City of Dodgeville'

On January 23, 2009 the Wisconsin Supreme Court published an oral argument Assignment for the Month of April 2009 [html | pdf] including:

April 15, 2009 1:30 p.m. Hocking v. City of Dodgeville (2007AP1754)

See Certification accepted in 'Hocking v. City of Dodgeville' and Synopsis of 'Hocking v. City of Dodgeville'

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

On January 23, 2009 the Wisconsin Supreme Court published an oral argument Assignment for the Month of April 2009 [html | pdf] including:

April 15, 2009 10:45 a.m. Milwaukee Journal Sentinel v. Department of Administration (2007AP1160)

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

Update: State Supreme Court hears arguments on open records, by Stacy Forster, Milwaukee Journal Sentinel, posted April 15, 2009

Argument in 'State v. McClaren'

On January 23, 2009 the Wisconsin Supreme Court published an oral argument Assignment for the Month of April 2009 [html | pdf] including:

April 15, 2009 9:45 a.m. State v. McClaren (2007AP2382-CR)

See Review granted in 'State v. McClaren' and Synopsis of 'State v. McClaren'

Court of Appeals opinions week of April 13, 2009

(linked from post title)


Wisconsin Law Journal current case digests

Non-profit Recreational Immunity

by Steven Snedeker, Hills Legal Group, Ltd, Waukesha, and republished with permission.

The Wisconsin Supreme Court confirmed that an “organization or association not organized or conducted for pecuniary profit” was entitled to recreational immunity from liability for injuries during recreational activity on its land. Trinidad v. Capitol Indemnity Corp., 2009 WI 8. [see Decision in 'De La Trinidad v. Capitol Indemnity Corporation' 2009 WI 8] The defendant, Halter Wildlife, Inc., was organized as a hunt and sportsman club. The regulations allowed its 275 members to invite quests to events such as picnics on the club’s grounds. Halter collected extra fees from its members for such events. At one such company picnic, the Trinidads’ two children drowned in a pond.

The Trinidads filed suit against Halter alleging negligence and safe place violations. They also sued the lifeguard on duty at the time for negligence. The circuit court granted summary judgment to the defendants. The plaintiffs argued that because Halter was organized as a stock-issuing corporation under Chapter 180 of the Wisconsin Statutes, it did not meet the definition of a non-profit. The court of appeals affirmed. The appellate court held that the recreational immunity statute did not define a “non-profit” with respect to the chapter under which it was incorporated.

The only question before the supreme court was whether Halter was “’an organization or association not organized or conducted for pecuniary profit’ under Wis. Stat. §895.52(1)(c) and as such entitled to immunity from liability for negligence, as well as for safe place violations.” The supreme court noted that the recreational immunity statute did not define a “nonprofit” by the statutory chapter it was organized under. Therefore, the court looked at the articles of incorporation, tax returns and financial statements. The articles of incorporation stated that it was a non-profit formed exclusively for educational, benevolent, fraternal, social, and athletic purposes within the meaning of the Internal Revenue Code. Furthermore, the Department of the Treasury granted it tax exempt status. The secretary of the state of Wisconsin had on several occasions accepted its filings as a not-for-profit entity.

The plaintiffs attempted to argue that because Halter could potentially become a for profit corporation in the future, it did not meet the definition of a nonprofit. The court summarily denied the potential for profit argument. It ruled that public policy was best served by protecting nonprofits until the time they actually become for profit. Thus, as long as the corporation is formed and operated as a nonprofit, it is entitled to immunity. The statute under which it was created matters not.

Foreign Law

An excellent post by David Bernstein at the Volokh Conspiracy on citation to foreign legal authority.

Synopsis of 'State v. Allen'

(2007AP795) See Supreme Court accepts three new cases

This criminal case examines post-conviction motions and procedures under Wis. Stat. §974.06 in light of case law and the Sixth Amendment to the U.S. Constitution. More specifically, the Supreme Court is asked whether it is appropriate for circuit courts to rule, without additional findings, that a failure to file a response to a no-merit report constitutes a waiver of all subsequent claims of error.

Some Background: Aaron Antonio Allen is serving a 37-year prison sentence arising from his 1999 conviction following a jury trial of one count of armed robbery and one count of felon in possession of a firearm committed when he was out on parole from his sentence for a felony murder.

Allen has asked the Supreme Court to review if his failure to respond to a “no-merit report” filed by his appointed appellate counsel pursuant to Wis. Stat. §809.32 results in waiver. A no-merit report must be filed with a court if an appointed attorney concludes that a direct appeal on behalf of the person would be frivolous and without any arguable merit. In this case, the issue is whether Allen is barred from bringing a motion on the ground that Allen failed to raise his arguments in his pro se response to his appointed counsel’s no-merit report.

In 2007, Allen filed a motion for post-conviction relief under §974.06, giving rise to this appeal. He argued counsel had been ineffective “for failing to file a post-conviction motion alleging that pretrial counsel was ineffective when he failed to file any motions to suppress the unlawful arrest, the illegal lineup, and the prosecution’s use of defendant’s alleged guilt.”

The circuit court denied his motion as procedurally barred under State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), noting Allen had not raised his issues in a response to the no merit report. Allen appealed, and the Court of Appeals affirmed.

The Court of Appeals held that because Allen offered no reason why he was unable to raise his issues in a response to the no merit report, he failed to show a sufficient reason to overcome the "Escalona-Naranjo/Tillman bar." See also State v. Tillman, 2005 WI App 71, ¶ ¶ 19-20, 281 Wis. 2d 157, 696 N.W. 2d 574. Allen contends defendants are not informed, “at or before the filing of no-merit reports, that their failure to file a response or failure to raise a particular issue at that time constitutes a waiver of claims that went unaddressed.”

Allen’s pro se petition for review was initially considered by the Supreme Court in June 2008, and the Court ordered the state to file a "supplemental response," which the state did on July 14, 2008. Because the state had responded that the law is unclear, the Court appointed pro bono appellate counsel to address certain issues.

The state contends that the law is unclear as to the requirement of a response in a no-merit proceeding to avoid application of the Escalona bar. The state also argues that guidance is needed regarding the application of the “sufficient reason” standard of §974.06 and Escalona. The state asks the Supreme Court to consider what additional showing, if any, is necessary to constitute “sufficient reason” authorizing a defendant to raise a claim.

A decision by the Supreme Court could clarify apparently conflicting Court of Appeals’ decisions and the application of the procedural bar to no merit proceedings and harmonize the holdings of Fortier and Tillman. See State v. Fortier, 2006 WI App 11, ¶19 289 Wis. 2d 179, 709 N.W.2d 893.

From Milwaukee County.

Plea withdrawal

Last week, the Wisconsin Court of Appeals inexplicably held that disorderly conduct can count as a misdemeanor crime of domestic violence, despite the fact that federal statutes limit the definition for that term to crimes that have, as an element, the use or threat of force.

Now, they've taken the next logical step. Everyone who has pleaded guilty to disorderly conduct over the last 13 years, specifically so they can continue to own a gun, gets to withdraw their pleas.

7th Circuit takes on diploma privilege

Judges question whether State's rationale for privilege can pass muster under the dormant commerce clause.

Influential Wisconsin justice wins re-election

Ryan J. Foley of the Associated Press reports on results of yesterday's election for a seat on the Wisconsin Supreme Court.

[Chief Justice Shirley] Abrahamson defeated [Jefferson County Circuit Judge Randy] Koschnick 59 percent to 41 percent, based on preliminary results.

(via WisPolitics)

Court of Appeals opinions week of March 6, 2009

(linked from post title)


Wisconsin Law Journal current case digests

Not that this is news

But Wisconsin still thinks there is no right to bear arms in this country.

Argument assigned for April 2009

On January 23, 2009 the Wisconsin Supreme Court published an oral argument Assignment for the Month of April 2009 [html | pdf].

April 15, 2009

9:45 a.m. State v. McClaren (2007AP2382-CR)
See Review granted in 'State v. McClaren' and Synopsis of 'State v. McClaren'

10:45 a.m. Milwaukee Journal Sentinel v. Department of Administration (2007AP1160)
See Review granted in 'Milwaukee Journal Sentinel v. Department of Administration' and Synopsis of 'Milwaukee Journal Sentinel v. Department of Administration'

1:30 p.m. Hocking v. City of Dodgeville (2007AP1754)
See Certification accepted in 'Hocking v. City of Dodgeville' and Synopsis of 'Hocking v. City of Dodgeville'

April 16, 2009

9:45 a.m. Farmers Automobile Insurance Association v. Union Pacific Railway
Company (2007AP1992)
See Review granted in 'Donaubauer v. The Farmers Auto Ins. Assoc.' and Synopsis of 'Donaubauer v. The Farmers Auto Ins. Assoc.'

10:45 a.m. Baldwin-Woodville Area School Dist. v. West Central Education Assoc. (2008AP519)
See Review granted in 'Baldwin-Woodville Sch. v. West Central Ed.' and Synopsis of 'Baldwin-Woodville Area School Dist. v. West Central Education Assoc.'

1:30 p.m. State v. Welda (2007AP2024-CR)
See Review granted in 'State v. Welda' and Synopsis of 'State v. Welda'

April 22, 2009

9:45 a.m. Osborn v. Dennison (2007AP1799)
See Review granted in 'Osborn v. Dennison' and Synopsis of 'Osborn v. Dennison'

10:45 a.m. State v. Lange (2008AP882-CR)
See Review granted in 'State v. Lange' and Synopsis of 'State v. Lange'

1:30 p.m. Zellner v. Herrick (2007AP2584)
See Review granted in 'Zellner v. Herrick' and Synopsis of 'Zellner v. Herrick'


On January 21, 2009 the Wisconsin Supreme Court published an update of Pending Rules Petitions Scheduled For Public Hearing [html|pdf].

See Petition for rules on original actions for redistricting dismissed

Court applies forest fire statute beyond railroads

David Ziemer, Wisconsin Law Journal, March 31, 2009

See Decision in 'Heritage Farms, Inc. v. Markel Insurance Company' 2009 WI 27