'Judgment Calls', reviewed Donald A. Daugherty, Jr.

From Engage Volume 10, Issue 2, July 2009, the latest issue of the journal of the Federalist Society's practice groups:

Judgment Calls: Principle and Politics in Constitutional Law, by Daniel A. Farber & Suzanna Sherry, reviewed by Donald A. Daugherty, Jr.*

Although it claims to reject interpretive schools on both the left and the right in favor of a “middle ground,” Judgment Calls is another effort to propose a way to interpret the Constitution without relying on the publicly understood meaning of the document’s express provisions at the time they became law. The authors, Daniel A. Farber of the University of California-Berkley and Suzanna Sherry of Vanderbilt University, assert that they seek a way between strict constructionist theories, in which judges are wholly constrained by objective criteria, and a cynical legal realism, in which judges act as quasi-legislators reading the founding document in the way that satisfies their political preferences. Although Judgment Calls offers some interesting discussion, the book ultimately fails to deliver the promised middle way.

Farber and Sherry attempt to show an approach to constitutional interpretation that is both principled and flexible, and one that reconciles the democratic rule of law with the inevitability that judges will have some discretion. The book offers various examples of the strict, “overly principled” end of the spectrum (e.g., originalism, intratextualism, minimalism), but it is unclear who follows the “overly flexible,” political school. In any event, Farber and Sherry explain how they believe judicial discretion can be exercised responsibly in constitutional decisionmaking, they describe the existing constraints that guide and contain such discretion, and recommend various improvements (e.g., favoring foxes on the bench over hedgehogs; enlarging the mandatory jurisdiction of the Supreme Court; emphasizing actual practice experience in hiring law school faculty).

The authors do not review the text of the Constitution in Judgment Calls, which could be explained by the fact that the book is an extended essay on the decisionmaking process generally, not a close consideration of what specific portions of the founding document mean as a legal matter. The authors write, however, that the absence of any textual analysis in their book is because the text “usually does not offer much in the way of either guidance or constraint;” this remarkable assertion reveals the authors’ bias towards an overly flexible, political approach, undermining their claim of seeking some “middle ground.”

A major assumption of Judgment Calls is that “[m]any key constitutional cases leave judges with leeway because the results are not clearly dictated by any source of constitutional authority, whether the language of the Constitution, its history or precedent.” At the same time, the authors believe that “this leeway does not preclude reasoned decision making.” The authors write that when a constitutional question cannot be answered by the Constitution itself, the process must safeguard against judges “either freely imposing their own values or deciding cases on a purely ad hoc basis.” Of course, they do not consider whether the Constitution’s silence may mean that the issue is not “constitutional” as a threshold matter, but is left to the political processes and/or states for resolution. Nonetheless, Judgment Calls provides a worthwhile review of the constraints on judicial discretion that exist apart from the law itself, such as our hierarchical court structure, the give-and-take among members of appellate courts during the deliberative process, the public and scholarly scrutiny of judicial decisions, and the institutional pressure towards transparency in the reasoning that supports a court’s holding. Under an originalist approach, these constraints serve to reinforce the law, which is what judges are supposed to be interpreting in the first place. But the safeguards identified by Farber and Sherry are useful, additional deterrents against judges who would otherwise be prone to follow their personal notions of the best policy.

The authors’ thesis is that judicial decisions can be judged on the basis of “[a] standard of reasonableness—whether their readings of text are plausible, whether they consider all of the relevant factors (but not others), whether they acknowledge and adequately account for competing considerations, whether they articulate plausible distinctions and intelligible standards—in short, on the basis of the strength of their legal reasoning.” However, the rub is whether that reasoning must adhere to the text’s original meaning or, with the help of the many other “tools” purportedly available to the judge, can diverge from that meaning.

Where originalists believe in the primacy of the text as it was generally understood, Judgment Calls treats textual meaning as merely another tool in a judge’s toolbox. As Justice Breyer has pointed out, he uses the same tools as Justice Scalia to arrive at a decision, but just has some additional ones.[1] Thus, the judge’s toolbox may also contain, for example, “’evolving standards of decency,’”[2] rights that migrate into the Constitution without need of the Article V amendment process,[3] empathy for particular categories of litigants over others,[4] or foreign law.[5] Without fail, these extra tools help to construct decisions that happily coincide with the judge’s own view of what the Constitution requires.

The need for a variety of additional tools can be understood when it is considered that the greatest “flexible” decisions—e.g., Roe, Miranda, Lawrence—have little or no relation to the language of the Constitution. Thus, a judge must have more tools that he or she can employ to achieve a righteous decision. The text and its original meaning are important tools but in the middle ground of Judgment Calls, they are only two of many and, when they are an impediment to the correct result, can be ignored.

Judgment Calls points to “constitutional values” as a source of authority, which seems reasonable enough. Who could argue that “constitutional values” are not relevant to interpreting the Constitution? On closer inspection, however, it appears that the term may be little more than cover for a judge’s notions about, for example, contemporary values. To “make value judgments,” the book instructs judges to look to constitutional values. But considering “[h]ow... should judges go about identifying constitutional values?,” the authors ignore completely the obvious answer: read the Constitution. Rather, Judgment Calls invites judges to look elsewhere, allowing that “broad support for a value, even if not consensus,” can be enough to elevate it to a constitutional level. Notably, discussion of the use of “constitutional values” follows on the heels of a discussion of “contemporary social values,” in which the authors acknowledge that “[e]veryone agrees that the text and original understanding are relevant factors,” along with precedent, but that fundamental disagreement remains over contemporary values. Like “judicial activism,” tools such as “contemporary values” may not poll well in the public debate over the role of judges, which would explain efforts to find a substitute bottle for old wine.

That “contemporary values” has become pejorative would not be surprising. Besides being an illegitimate method, judicial consideration of current values makes no sense as a practical matter. Assuming that today’s values are categorically better than yesterday’s, why is it that the Supreme Court justices have a better sense of the values currently held by Americans than the broad cross-section of citizenry represented by democratically elected legislators and executives from all regions of the country at both the state and federal level? The far better, and only legitimate, method for gauging the values held by citizens is through the opinion polls that our democracy conducts regularly at the ballot box. Standards of decency and the like evolve to become firmly implanted among our national values when they are made law through federal statute, Constitutional amendment or by an overwhelming majority of states, not when five to nine lawyers in Washington, D.C., believe that they are there.

Also showing an inclination towards politics over principle, Farber and Sherry sprinkle Judgment Calls with unnecessary asides that detract from their credibility. This is most evident in the final chapters, which apply the book’s interpretive approach to jurisprudence in three of the most contentious constitutional areas—terrorism, abortion and affirmative action. For example, the authors write, “We are no fans of the Bush Administration’s handling of terrorism issues or foreign policy, but [Hamdi] obviously presented a very serious and difficult constitutional issue.” Similarly, although they recognize that the approach of the Casey dissenters to stare decisis was superior to that of the majority, the authors feel compelled to state that “we think they were quite wrong on the merits of the abortion decision.” Similarly, the authors note the problematic aspects of Grutter, but make certain their readers know that by doing so, they do not mean to suggest “that the Court was necessarily wrong to uphold the law school’s affirmative action program, but to show that the Court failed to provide a tenable argument for doing so while striking down the undergraduate admissions program” in the companion case, Gratz. This apparent anxiety about potential accusations of political incorrectness is surprising from law professors who in the past have unflinchingly challenged radical multiculturalism in their academy.[6]

In closing, the authors recognize that their “prescription for judges is perhaps deceptively simple: Respect precedent, exercise good judgment, provide reasoned explanations, deliberate with your colleagues, and keep in mind the possible responses of critics.” However, their articulation of their prescription reinforces the conclusion that the authors do not achieve what they set out to do. Transparency, peer review, etc., are essential to any defensible, intellectually honest exercise. They are no less important to drafting legislation (or, for that matter, writing a graduate school dissertation or preparing a business plan for potential investors) than they are to constitutional decisionmaking. The authors’ prescription applies to so many other activities that it tells little specifically about the very subject of the book.

Although Judgment Calls may be a good try, its aim of finding a middle way was doomed from the start. Principle and flexibility are simply not equally important for making legal decisions. Even where the meaning of the Constitution is susceptible to more than one plausible interpretation, constitutional law must always be founded on principles drawn directly from, if not expressly in, the Constitution itself. Constitutional analysis cannot start from (and, ultimately, return to) any place other than the meaning of the text as reasonably understood by the majority that originally consented to elevate it from mere words on paper into governing law. To do otherwise is to “reduce to nothing what we have deemed the greatest improvement on political institutions—a written constitution.”[7]

Endnotes
1. See “A Conversation on the Constitution: Perspectives from Active Liberty
and A Matter of Interpretation,” ABC (Dec. 5, 2006), available here.
2. See Kennedy v. Louisiana, 554 U.S. ___, 128 S.Ct. 2641, 2649 (2008).
3. See generally Cass Sunstein, The Second Bill of Rights (2004).
4. The President’s Remarks on Justice Souter (May 1, 2009, 04:23 EST).
5. See Lawrence v. Texas, 539 U.S. 558, 598 (2003).
6. See generally Farber & Sherry, Beyond All Reason (2004).
7. Marbury v. Madison, 5 U.S. 137, 178 (1803).

* Donald A. Daugherty, Jr. is a Shareholder with Whyte Hirschboeck
Dudek, S.C., Milwaukee (WI).

Appellate opinions week of July 28, 2009

Wisconsin Court of Appeals

New state budget permits auto policy stacking, mandates coverage

Adam Korbitz, Government Relations Coordinator, State Bar of Wisconsin, reports.

Fulfilling a long-standing policy goal of the State Bar of Wisconsin, the new 2009-11 biennial state budget ... repeals a 14-year statutory provision that effectively banned insureds from stacking auto insurance policy limits for uninsured and underinsured motorist coverage. ...

Our State Bar elsewhere provides this compendium of its policy positions on what it considers "Issues Related to Administration of Justice".

Decision in 'Bubb v. Brusky' 2009 WI 91

Wisconsin Supreme Court Rules on Medical Malpractice Case, by Andrew Cook, Hamilton Consulting Group, July 24, 2009


Wisconsin Supreme Court lets patient sue for doctor’s failure to explain treatments, by Alex De Grand, State Bar of Wisconsin, July 24, 2009


The Wisconsin Supreme Court today issued its decision in this case (2007AP619) reversing the Court of Appeals, 2008 WI App 104.

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

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

See Synopsis. Opinion by Justice Prosser for a unanimous court. Justice Ziegler did not participate.

Decision in 'American Transmission Co., LLC v. Dane County' District IV

Court ruling rebuffs Dane County on power line permits, by Thomas Content, at Plugged In, Milwaukee Journal Sentinel, July 23, 2009


The Wisconsin Court of Appeals July 23, 2009 issued its decision in this case (2008AP2604) affirming the Circuit Court. Opinion by Judge Vergeront. Recommended for publication.

Decision in 'Office of Lawyer Regulation v. Reitz' 2009 WI 90

The Wisconsin Supreme Court today issued its decision in this case (2007AP2935-D) ordering a 90 day suspension. Opinion Per Curiam.

Supreme Court accepts two new cases

The Wisconsin Supreme Court issued a press release July 22, 2009.

The cases accepted are:

State v. Cross (2009AP3-CR) bypassing the Court of Appeals

State v. Kleser (2007AP2827) review of the Court of Appeals.

See Supreme Court pending cases July 20, 2009

Decision in 'Office of Lawyer Regulation v. Nunnery' 2009 WI 89

Madison lawyer saves his license, Proof and Hearsay, July 21, 2009


The Wisconsin Supreme Court today issued its decision in this case (2006AP1191-D and 2007AP1908-D) ordering a three year suspension. Opinion Per Curiam.

Decision in 'Coulee Catholic Schools v. LIRC' 2009 WI 88

More on Coulee Catholic Schools v. LIRC, by Daniel Suhr, Marquette University Law School Faculty, July 23, 2009


Coulee Catholic: Of loopholes and legislating, by Rick Esenberg, Shark and Shepherd, July 22, 2009


Freedom of religion guarantees trump schoolteacher’s job discrimination claim, by Alex De Grand, State Bar of Wisconsin, July 21, 2009


Update: Wisconsin court rules religious teachers can't claim bias, by The Associated Press, La Crosse Tribune, July 21, 2009 (via The Wheeler Report)


Wis. court: Religious teachers can't claim bias, by Ryan J. Foley, Associated Press (via WisPolitics)


The Wisconsin Supreme Court July 21, 2009 issued its decision in this case (2007AP496) reversing the Court of Appeals. The issues on review were:

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

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

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

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

See Synopsis. Opinion by Justice Gableman. Dissent by Justice Crooks, with Chief Justice Abrahamson and Justice Bradley.

Decision in 'Christensen v. Sullivan' 2009 WI 87

Milwaukee jail officials’ contempt falls outside statute, Wisconsin Supreme Court says, by Alex De Grand, State Bar of Wisconsin, July 22, 2009


Supreme Court says no damages for jail inmates, by Marie Rohde, Milwaukee Journal Sentinel (via The Wheeler Report)


The Wisconsin Supreme Court July 21, 2009 issued its decision in this case (2006AP803) reversing the Court of Appeals, 2008 WI APP 18. The issues on review were:

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

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

See Synopsis. Opinion by Justice Prosser. Dissent by Chief Justice Abrahamson, joined by Justices Bradley and Crooks.

Decision in 'State v. Payano' 2009 WI 86

Evidence of criminal defendant’s “other acts” may be used to establish context of arrest, by Alex De Grand, State Bar of Wisconsin, August 4, 2009


Supreme Court upholds conviction of man who shot police officer, by Marie Rohde, Milwaukee Journal Sentinel


The Wisconsin Supreme Court July 21, 2009 issued its decision in this case (2007AP1042-CR) reversing the Court of Appeals, 2008 WI App 74. The issues on review were:

Under State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998), is “other acts” evidence admissible to provide context and rebut a self-defense claim, when the evidence was relevant to explain what the police were doing at the defendant’s residence and what the defendant knew at the time?

Under Sullivan’s independent review doctrine, did the court of appeals independently search the record for other bases to sustain the circuit court’s discretionary decision to admit the evidence?

Opinion by Justice Prosser. Dissent by Justice Bradley, with Chief Justice Abrahamson.

Supreme Court pending cases July 20, 2009

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


State v. Kleser (2007AP2827-CRAC) granting July 15, 2009 review of the Court of Appeals, 2009 WI App 43, on:

Does Wis. Stat. § 970.032 (reverse waiver statute) require that any evidence concerning the facts of a crime be introduced only at a preliminary hearing (or in a criminal complaint if a preliminary hearing is waived)?

Is expert testimony at a reverse waiver hearing by a psychologist concerning a juvenile defendant’s version of the events underlying the alleged offenses inadmissible under the hearsay rules, and may a circuit court substantively rely on such testimony regarding the underlying facts?

Did the circuit court err in relying on a defense psychologist’s opinion regarding the circumstances of an alleged offense by a juvenile? Did the psychologist’s testimony constitute an opinion regarding the truthfulness of the juvenile’s statements concerning the facts of an alleged offense?

May a circuit court consider the full testimony of a defense psychologist regarding a juvenile’s statements concerning the facts of an alleged offense, after prohibiting the state’s psychological expert witness from interviewing the juvenile defendant regarding the facts of the relevant incidents?

State v. Cross (2009AP3-CR) granting July 15, 2009 bypass of the Court of Appeals on:

Whether a defendant who plead guilty to a crime under the mistaken belief that he faced greater potential punishment than he actually faced is, upon postconviction motion, entitled to an automatic plea withdrawal under due process grounds or whether he must show that a plea withdrawal is necessary to correct a manifest injustice.

Whether the Court of Appeals’ holdings in State v. Harden, 2005 WI App 252, 287 Wis. 2d 871, 707 N.W.2d 173 and State v. Quiroz, 2002 WI App 52, 251 Wis. 2d 245, 641 N.W.2d 715 (petition for review denied) are in conflict.

Party can amend pleadings midtrial

Despite contradicting Wisconsin Supreme Court precedent addressing the issue, the Court of Appeals nevertheless reaches the correct result in light of more recent precedent discussing similarly-worded statutes.

Appellate opinions week of July 20, 2009

Wisconsin Supreme Court and Wisconsin Court of Appeals

Day 4 Reflections - What we can agree on

Rick Esenberg at Shark and Shepherd, July 17, 2009, on the confirmation hearing for Judge Sotomayor

See Day 3 reflections

Decision in 'Harvot v. Solo Cup Company' 2009 WI 85

Jury trial right in civil cases must be expressly provided by statute or preserved by constitution, by Alex De Grand, State Bar of Wisconsin, August 6, 2009


No right to jury trial under WFMLA, by David Ziemer, Wisconsin Law Journal, July 23, 2009


No Right to Jury Trial under Wisconsin’s Family or Medical Leave Act, by Andrew Cook, Hamilton Consulting Group, July 21, 2009


The Wisconsin Supreme Court today issued its decision in this case (2007AP1396) affirming the Circuit Court on certification from the Court of Appeals:

Does the Wisconsin Family Medical Leave Act (WFMLA), Wis. Stat. § 103.10, confer an implied statutory right to a jury trial in a civil action for damages?

In the alternative, under the test set forth in Village Food & Liquor Mart v. H & S Petroleum, Inc., 2002 WI 92, 254 Wis. 2d 478, 647 N.W.2d 177, does the Wisconsin State Constitution confer the right to a jury trial in a WFMLA civil action for damages?

See Synopsis. Opinion by Justice Prosser. Dissent by Chief Justice Abrahamson, with Justice Bradley.

Decision in 'City of Milwaukee Post No. 2874 v. Redevelopment Authority of the City of Milwaukee' 2009 WI 84

Supreme Court refuses to hear case: VFW loses eminent domain battle, by Sean Ryan, The Daily Reporter


Condemnation award does not factor in value of a lease, Wisconsin Supreme Court holds, by Alex De Grand, State Bar of Wisconsin, August 3, 2009


Condemnation - Unit rule does not violate constitutional right to just compensation, Real Property News, July 24, 2009


Wisconsin Supreme Court ruling fortifies eminent domain, by Sean Ryan, Special to Wisconsin Law Journal, July 23, 2009


State Supreme Court rules Milwaukee can recover money it gave to VFW post, by Tom Daykin, Milwaukee Journal Sentinel


The Wisconsin Supreme Court today issued its decision in this case (2006AP2866) reversing the Court of Appeals, 2008 WI APP 24. The issues on grant of review were:

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

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

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

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

See Synopsis. Opinion by Chief Justice Abrahamson. Concurrence by Justice Ziegler, with Justice Gableman. Dissent by Justice Prosser, with Justices Crooks and Roggensack.

Decision in 'Tammi v. Porsche Cars North America, Inc.' 2009 WI 83

Lemon Law damages exclude purchase price of leased vehicle, Wisconsin Supreme Court says, by Alex De Grand, State Bar of Wisconsin, August 7, 2009


Wisconsin Supreme Court Rules on Lemon Law, by Andrew Cook, Hamilton Consulting Group, July 21, 2009


The Wisconsin Supreme Court today issued its decision in this case (2008AP1913-CQ) answering in part certified questions from the U.S. Court of Appeals:

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

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

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

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

See Synopsis. Opinion by Justice Prosser for a unanimous court.


What Constitutes Pecuniary Loss Under the Wisconsin Lemon Law? Tammi v. Porsche Cars North America, Inc., 536 F.3d 702 (7th Cir. 2008), Products Liability Bulletin, February 5, 2009, Hinshaw & Culbertson LLP

Decision in 'Umansky v. ABC Insurance Co.' 2009 WI 82

State high court: Stadium official can face lawsuit, by Associated Press, LaCrosse Tribune, July 18, 2009 (via WisPolitics)


UW-Madison facilities director owed duty in death of cameraman, Wisconsin Supreme Court says, by Alex De Grand, State Bar of Wisconsin, July 17, 2009


The Wisconsin Supreme Court today issued its decision in this case (2007AP385) affirming the Court of Appeals, 2008 WI App 101, and remanding to the circuit court for a trial on the claim of negligence. The issues on grant of review were:

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

See Synopsis. Opinion by Justice Crooks. Concurrence by Justice Crooks, with Justice Prosser. Concurrence by Justice Prosser, with Justice Crooks. Dissent by Justice Ziegler, with Justices Roggensack and Gableman.

The Sotomayor Nomination

The latest in The Federalist Society Online Debate Series

Part III

In this installment of Originally Speaking, Thomas C. Goldstein, Wendy Long, Louis Michael Seidman, David Stras, Scott A. Moss, Matthew J. Franck, and M. Edward Whelan III evaluate the hearing.

Part II

In this installment of Originally Speaking, Thomas C. Goldstein, Wendy Long, Louis Michael Seidman, David Stras, Scott A. Moss, Matthew J. Franck, and M. Edward Whelan III discuss issues that relate to and arise during the confirmation hearing.

Part I

In this installment of Originally Speaking, Thomas C. Goldstein, Louis Michael Seidman, David Stras, Wendy Long, and M. Edward Whelan III discuss how to approach Sotomayor's nomination: what standard Senators should use to support or oppose the nomination, what deference should be given to the President, what weight should be given to the nominee's views on issues, what questions the Committee should ask and which ones the nominee should answer.

Still "no one here but us Scalias"

Patrick McIlheran in the Milwaukee Journal Sentinel on The week judicial liberalism gave up

she went out of her way to spurn President Barack Obama's view about empathy: "Judges can't rely on what's in their heart," she said. She's disavowed that moral superiority is granted by being part of a minority. "I do not believe that foreign law should be used to determine the result under constitutional law or American law," she said Thursday, throwing overboard the progressive dream of correcting our bad habits in the court of world opinion. Asked whether the Constitution is a living, breathing document, she replied it is "immutable" but for amendments. "It doesn't live other than to be timeless," she said.

Antonin Scalia must have wept at the beauty of this statement.

P.S. from March 2008, No one here but us Scalias

Day 3 reflections

Rick Esenberg at Shark and Shepherd, July 16, 2009, on the confirmation hearing for Judge Sotomayor

See Day 2 reflections

Judicial Verbosity – It’s Not Easy Being Green

John J. Kircher at the Marquette University Law School Faculty, July 15, 2009

In 1978 volume 83 of the second series of the Wisconsin Reporter was published. The average opinion length of Wisconsin Supreme Court cases in that volume was a bit under twelve and a quarter pages. The longest opinion was thirty-nine and a half pages. Twenty years later in 2008, the average length of the court’s opinions in volume 312 of the same reporter was a bit over fifty pages. The longest was eighty-four.

He doesn't suggest page limits, like those for briefs. Perhaps no one wants to be the lawyer who signs the rule petition.

Decision in 'Ecker Brothers v. Calumet County' District II

Court ruling wipes out local wind ordinances, by Gina Duwe, Janesville Gazette, August 2, 2009 (via WisPolitics)


State court tosses local wind turbine regulations, by Ryan J. Foley, Associated Press, in The Capital Times (via WisPolitics)


The Wisconsin Court of Appeals on July 15, 2009 issued its decision in this case (2007AP2109) reversing the Circuit Court. Recommended for publication. Opinion by Judge Brown for a unanimous court.

Day 2 reflections

Rick Esenberg at Shark and Shepherd, July 15, 2009, on the confirmation hearing for Judge Sotomayor

See Day One


P.S. At Althouse, July 14, 2009, Did you notice how Sonia Sotomayor has backed away from any identification with Obama's notion that "empathy" is a component of judging?


Update: I did notice at ACSblog the consecutive posts: In Support of Empathetic Umpires, by Scott A. Moss, July 13, 2009 10:31am; On Education, Empathy & Affirmative Action, by Lawrence F. Keller, July 13 2009 1:00pm; Briefly: Justice Marshall Preempted Sen. Sessions's Attacks on Empathy, by Walter J. Kendall III, July 13, 2009 2:37pm; and Judicial Empathy: A Short Historical Context, by Rebecca Latham Brown, July 14 2009 9:16am; but that the word disappeared from post titles after the hearings started.


Ann Althouse explains.

Obama comes from the law academia environment that I'm very familiar with [she's a law professor at the University of Wisconsin] where that talk about "empathy" is what you hear all the time. It's very normal, it's "sophisticated," and I can understand how Obama has just been soaking in that. And then when he, as a former constitutional law professor, comes to us and starts to tell us about law, I can really understand how he thought he was saying something profound and meaningful.

(via InstaPundit)

Decision in 'American Family Mutual Ins. Co. v. Golke' 2009 WI 81

Extent of duty to preserve evidence spelled out by Wisconsin Supreme Court, by Alex De Grand, State Bar of Wisconsin, July 16, 2009


The Wisconsin Supreme Court today issued its decision in this case (2006AP3003) reversing the Circuit Court, on certification from the Court of Appeals:

(1) under what circumstances may evidence crucial to a potential legal claim be destroyed; and (2) what notice must be given to a civil litigant before the evidence is destroyed.

Opinion by Justice Gableman.

¶5 We conclude that the duty to preserve relevant evidence is discharged when a party or potential litigant with a legitimate reason to destroy evidence provides reasonable notice of a possible claim, the basis for that claim, the existence of evidence relevant to the claim, and a reasonable opportunity to inspect that evidence. We further hold that such notice can be properly effectuated by mailing a letter via first-class mail. We also affirm that dismissal is an appropriate sanction for spoliation of evidence only if a party acts egregiously——that is, in a conscious effort to affect the outcome of litigation or in flagrant, knowing disregard of the judicial process. Applying the law to the facts of this case, we conclude that as a matter of law, Joseph and Charles Golke received the March 13, 2000, letter, and that American Family provided the Golkes with reasonable and sufficient notice, thereby discharging its duty to preserve the evidence from the fire.

Concurrence by Chief Justice Abrahamson, with Justice Bradley.

¶61 The record supports the circuit court's findings of fact and discretionary determination that American Family violated its duty to preserve evidence and may be sanctioned. Because American Family's conduct was not egregious, that is, because the conduct was not a conscious attempt to affect the outcome of the litigation or a flagrant knowing disregard of the judicial process, the circuit court erred in imposing the sanction of dismissing American Family's claim. But on its findings of fact and this record the circuit court could have imposed another sanction.

Decision in 'Zellner v. Herrick' 2009 WI 80

State Supreme Court upholds secrecy order in firing of Cedarburg teacher, by Steven Walters and Dan Benson, with Tom Kertscher, Milwaukee Journal Sentinel (via The Wheeler Report)


The Wisconsin Supreme Court today issued its decision in this case (2007AP2584) dismissing the appeal and affirming the Circuit Court, on certification from the Court of Appeals. See Argument.

Opinion by Justice Crooks.

¶23 Having established that Morgan is a party, it is further obvious that she is a party who is "appeal[ing] a decision of the court under sub.(7)." Wis. Stat. § 19.356(8). The remainder of the sentence concerns the expediting of the appeal, a matter to which we will return shortly. It is the next sentence that needs our close attention: "An appeal shall be taken within the time period specified in s. 808.04(1m)." Id.

¶24 The question to answer then is, what is "the time period specified in s. 808.04(1m)"? Wis. Stat. § 808.04(1m) reads as follows: "An appeal by a record subject under s. 19.356 shall be initiated within 20 days after the date of entry of the judgment or order appealed from."

¶25 Wis. Stat. § 19.356(8) tells us to look for the time period referenced in Wis. Stat. § 808.04(1m). When we do so, the only time period referenced in § 808.04(1m) is 20 days. There simply is no other way to read § 19.356 that gives effect to its words. If the legislature had, as Morgan contends, intended that the 20-day time period for appeal for this type of order be limited to the record subject alone, and that a 45-day time period for appeal apply to everyone else, it could have clearly indicated that by referring to "the applicable sections" in Wis. Stat. § 808.04.[footnote omitted]

Dissent by Justice Roggensack.

I write in dissent because although § 19.356 provides the initial procedural pathway for our review, § 808.04(1) applies to Morgan's appeal. Section 808.04(1) provides a minimum of 45 days in which to commence an appeal and Morgan's appeal was filed within 45 days of the circuit court decision. And, although Morgan intervened,[footnote omitted] she was not a "party" when the circuit court entered its order, nor was she a party during the 20-day period when the majority opinion concludes that she was required to appeal.[footnote omitted] Accordingly, this court should proceed to decide the important questions for which we granted certification.

Decision in 'Milwaukee Journal Sentinel v. Department of Administration' 2009 WI 79

Court keeps state labor info open to you, by Bob Dreps, Your Right to Know column, July 2009, Wisconsin Freedom of Information Council


Wisconsin Supreme Court upholds newspaper access to state employee records, by Alex De Grand, State Bar of Wisconsin, July 16, 2009


State Supreme Court says personnel records wrongly denied, by Stacy Forster, Milwaukee Journal Sentinel (via The Wheeler Report)


Court: Wis. can't shield names of union workers, Associated Press, Chicago Tribune (via WisPolitics)


The Wisconsin Supreme Court today issued its decision in this case (2007AP1160) affirming the Circuit Court, on certification from the Court of Appeals:

(1) Whether courts have jurisdiction to review legislative action to determine if that action was sufficient to amend the Public Records Law; and

(2) If so, whether the action taken by the legislature in ratifying a collective bargaining agreement between the Wisconsin State Employees Union (WSEU)[footnote omitted] and the State of Wisconsin was sufficient to amend the Public Records Law.

See Argument.

Opinion by Justice Roggensack.

¶3 We conclude that courts have jurisdiction to review whether the legislature's ratification of a collective bargaining agreement under Wis. Stat. § 111.92(1)(a), without introducing a companion bill to specifically amend the Public Records Law, is sufficient to effect a change in that law. We so conclude because courts have jurisdiction to determine the meaning of statutes, here § 111.92(1)(a), and of constitutional provisions, here Article IV, Section 17(2) of the Wisconsin Constitution.[footnote omitted] We also conclude that ratification of the collective bargaining agreement was insufficient to amend the Public Records Law because Article 2/4/4 of the collective bargaining agreement was not "introduce[d] in a bill or companion bills" within the meaning of § 111.92(1)(a), as that meaning is driven by the requirements of Article IV, Section 17(2) of the Wisconsin Constitution. Accordingly, the ratification of the collective bargaining agreement did not create an exception to the Public Records Law. Additionally, we conclude that Wis. Stat. § 111.93(3) does not support WSEU's assertion that Article 2/4/4 supersedes the disclosure provision of the Public Records Law, Wis. Stat. § 19.35(1)(a).[footnote omitted]

¶4 Finally, we affirm the circuit court's application of the balancing test, which it appears the circuit court applied to the WSEU members as a group because that is how the issue was argued to the circuit court. However, we do not decide what our conclusion would be if, on remand, individual record subjects intervene and request the circuit court to apply the balancing test to them, individually.

Concurrence by Justice Bradley.

¶75 ... In a close case, I conclude that the weighty public policies of notice and transparency in government tip the scale. I would therefore determine that Wis. Stat. § 111.92(1)(a) is not a rule of legislative proceeding, and the court may intervene to examine whether its conditions were met.

¶76 I turn then to the statute to determine whether the collective bargaining agreement was properly ratified. ... Thus, I must determine whether the legislature followed the dictates of Wis. Stat. § 111.92(1)(a) when it ratified the agreement.

¶77 I determine that it did not.

Dissent by Chief Justice Abrahamson.

¶107 In considering all these factors in this close case, I conclude that the balance tips in favor of holding that a court should refrain from interfering with the legislature in the present case under the doctrine of separation of powers embodied in the Wisconsin Constitution and the principle of comity. The legislature's adherence to rules or statutes prescribing legislative procedure (even those regarding the method for satisfying a statute regulating the content of a bill or act) is a matter entirely within legislative control and discretion, not subject to judicial review unless the legislative procedure is mandated by or violates the constitution.[footnote omitted]

¶108 It is not the role of the court to sit in judgment of the legislature when the legislature's own rules of procedure are at issue and the constitution has not otherwise been violated. Respecting this limit on the court's authority, I conclude that 2003 Wisconsin Act 319 is valid in full, even insofar as it ratifies that portion of the collective bargaining agreement amending the public records law.

Live-blogging Day 2 of the Sotomayor confirmation hearings.

At Althouse, July 14, 2009

Hearing reflections - Day One

Rick Esenberg at Shark and Shepherd, July 13, 2009

Of course, judge as umpire is not a perfect analogy. ...

Decision in 'Godoy v. E.I. du Pont de Nemours & Co.' 2009 WI 78

Supreme Court Upholds Dismissal of Lead Pigment Design Defect Claim, by Jim Hough, Hamilton Consulting Group, July 17, 2009


Decisions leave design defect law in limbo, by David Ziemer, Wisconsin Law Journal, July 16, 2009


State high court denies defective design claim in lead paint lawsuit, by Marie Rohde of the Journal Sentinel


Lead in lead paint is not a design defect, Wisconsin Supreme Court says, by Alex De Grand, State Bar of Wisconsin, July 14, 2009


Wis. Sup. Ct. resolves existential dilemma, by Tom Foley, Illusory Tenant


State Supreme Court gives victory to lead paint makers, Associated Press, The Capital Times (via The Wheeler Report)


The Wisconsin Supreme Court today issued its decision in this case (2006AP2670) affirming the Court of Appeals, 2007 WI App 239. See Argument.

Opinion by Justice Bradley.

¶31 Lead is a characteristic ingredient of white lead carbonate pigment. By definition, white lead carbonate pigment contains lead. Removing lead from white lead carbonate pigment would transform it into a different product. Under these circumstances, we conclude that the design of white lead carbonate pigment is not defective.

Concurrence by Justice Bradley, with Chief Justice Abrahamson.

¶68 I am uncertain whether the Restatement (Third) should be adopted. What I am certain of, however, is that rather than pushing a predetermined agenda, I would wait until the issue is raised by a party, and briefed and argued before this court.

Concurrence by Justice Crooks, with Chief Justice Abrahamson and Justice Bradley.

¶73 ... We should address the question of adopting Restatement (Third) § 2(b) when a case arises in which one of the parties asks us to do so and not before.

Concurrence by Justice Prosser, with Justices Ziegler and Gableman.

¶77 In 2001 former Justice Diane S. Sykes wrote that Wisconsin was "seriously out of step with product liability law as it has evolved since this court adopted Restatement (Second) of Torts § 402A [(1965)] in Dippel v. Sciano, 37 Wis. 2d 443, 155 N.W.2d 55 (1967)." Green v. Smith & Nephew AHP, Inc., 2001 WI 109, ¶122, 245 Wis. 2d 772, 629 N.W.2d 727 (Sykes, J., dissenting).
...
¶86 The principal concern with Section 402A today is that it is outdated and no longer reflects the complexities that have developed in products liability law over the past 45 years.

Justice Roggensack did not participate.

Decision in 'Tensfeldt v. Haberman' 2009 WI 77

Stipulation in divorce judgment enforceable as court order, Wisconsin Supreme Court holds, by Alex De Grand, State Bar of Wisconsin, July 29, 2009


Attorney's liability for aiding and abetting client's unlawful act - Ability of third parties to sue for malpractice (application of the Auric exception), Probate & Trust News, July 24, 2009


Attorney is liable to third parties for tort, by David Ziemer, Wisconsin Law Journal, July 17, 2009


The Wisconsin Supreme Court today issued its decision in this case (2007AP1638) affirming in part and reversing in part the Circuit Court on certification by the Court of Appeals. See Argument.

Opinion by Justice Bradley.

¶54 ... we conclude that the court judgment requiring Robert [Tensfeldt] to maintain a will giving two-thirds of his net estate outright to his children was enforceable. We further determine that it was unlawful for Robert to violate the judgment and that his obligation to abide by the judgment was not fairly debatable.
...
¶66 ... We acknowledge that in some circumstances, an attorney may in good faith advise a client to breach a contract. That is not the situation before us today.

¶67 The action here is not for breach of contract. Rather, it is an action in tort for assisting a client to unlawfully violate a court judgment. Further, LaBudde did not merely give advice. He drafted an estate plan that violated the judgment. We conclude that, under these facts, LaBudde is not entitled to this privilege.

¶68 In sum, we determine that the circuit court properly concluded that LaBudde is liable as a matter of law for aiding and abetting his client's unlawful act. The divorce judgment was enforceable at the time it was entered and at the time Robert asked LaBudde to draft an estate plan that violated the judgment.
...
¶74 It is undisputed that LaBudde carried out Robert's explicit instructions when he crafted an estate plan that did not leave two-thirds of Robert's net estate outright to his children. To this end, we determine that the children's third party negligence claim cannot be maintained because they cannot establish that LaBudde's negligence thwarted Robert's clear intent.
...
¶81 ... None of Haberman's statements to the court reflects any personal knowledge about what Robert would have done had he been properly advised.

¶82 ... Haberman is not liable to third parties for his negligent advice, and further, the children failed to present sufficient evidence that they were harmed by Haberman's negligent advice to create a genuine issue of material fact.

Concurrence and dissent by Justice Roggensack, with Justice Ziegler.

¶138 ... I conclude that even if I were to assume, arguendo, that the directive to make a will in the 1974 divorce judgment were enforceable when made, Wis. Stat. § 893.40, a 20-year statute of repose, precluded actions on the divorce judgment after December 5, 1994. Therefore, the divorce judgment had no effect, as a judgment, in 1999 when Robert reaffirmed the will that he made in 1992, and it had no effect at his death in 2000. As a result, the aiding and abetting claim against LaBudde must be dismissed.

Justice Gableman did not participate.

Decision in 'Star Direct, Inc. v. Dal Pra' 2009 WI 76

Memo To The New Justices: That’s Not How We Do Things On The Court, Edward A. Fallone at Marqutte University Law Faculty, November 25, 2009


Star Direct Takes Restrictive Covenant Law in a New Direction, by Bradden C. Backer, Wisconsin Lawyer, November 2009


The Blue Pencil Comes to Wisconsin, by Paul M. Secunda, Marquette University Law School Faculty, August 13, 2009


Wisconsin Supreme Court adopts new standard for non-compete clauses, by Alex De Grand, State Bar of Wisconsin, July 31, 2009


The Wisconsin Supreme Court today issued its decision in this case (2007AP617) affirming in part and reversing in part the Court of Appeals. See Argument.

Opinion by Justice Gableman.

¶83 We conclude that the customer and confidentiality clauses are reasonably necessary to protect Star Direct and therefore enforceable. The business clause, however, is overbroad and unenforceable. We also hold that the customer and confidentiality clauses are divisible from the business clause and enforceable on their own terms.

Concurrence and Dissent by Justice Bradley, with Chief Justice Abrahamson.

¶85 I write separately, however, for two reasons: (1) contrary to the majority, I conclude that Star Direct has not met its burden to demonstrate that the customer clause is reasonably necessary to protect its legitimate interests in past customers, including past customers that Dal Pra never developed a relationship with or serviced; and (2) I find that the new interpretive tool created today by the majority——that silence on an issue signals approval——is contrary to precedent, principles of judicial restraint, and makes no sense.

Dissent by Chief Justice Abrahamson.

¶116 Wisconsin Stat. § 103.465 has placed the onus on employers to draft reasonable restrictive employment covenants. As a result of § 103.465, Wisconsin courts give effect to reasonable covenants but do not rewrite unreasonable covenants to save them.

Decision in 'Horst v. Deere & Company' 2009 WI 75

Strict Products Liability Claim Rejected by High Court, by Andrew Cook, Hamilton Consulting Group, July 17, 2009


Decisions leave design defect law in limbo, by David Ziemer, Wisconsin Law Journal, July 16, 2009


High court tosses lawsuit over mower mishap, Associated Press, Janesville Gazette Extra (via The Wheeler Report)


The Wisconsin Supreme Court today issued its decision in this case (2006AP2933) affirming the Court of Appeals, 2008 WI App 65. See Argument.

Opinion by Justice Gableman.

¶3 ... the main question before us is whether Wisconsin has adopted or should adopt a "bystander contemplation test." If the bystander contemplation test is the law, we must determine whether the circuit court's jury instructions were a misstatement of the law, and if so, whether the error was prejudicial.

¶4 We hold that the consumer contemplation test, and not a bystander contemplation test, governs all strict products liability claims in Wisconsin, including cases where a bystander is injured.

Concurrence by Justice Crooks.

¶85 These glancing references [in the briefs] to Restatement (Third) provide an exceedingly flimsy basis for reaching the question of whether the court should adopt § 2(b) in design defect cases. Because any consideration of such a fundamental change in Wisconsin law should not be done without a full and thorough briefing followed by oral arguments before this court, I believe we should decline to reach beyond the controversy the parties ask us to resolve, which in this case is whether Wisconsin law recognizes a bystander contemplation test. It does not. That is as far as we should go.

Concurrence by Justice Gableman, with Justices Prosser and Roggensack.

I write separately because this case highlights some of the serious deficiencies with our current approach, the "nearly universally reviled"[footnote omitted] consumer contemplation test, to determining whether a product is unreasonably dangerous in design defect products liability cases. As the majority opinion makes clear, a bystander contemplation test is not the answer. Rather, I believe it is time for this court to adopt the Restatement (Third) of Torts: Products Liability (hereafter "Restatement (Third)") § 2(b) (1998) in design defect cases.

Dissent by Justice Bradley, with Chief Justice Abrahamson.

¶128 Based on the evidence presented at trial, the jury was required to answer "no" to the special verdict question because there was no evidence presented that the lawn mower was unreasonably dangerous to Michael, its user. Nevertheless, there was evidence from which a properly instructed jury could have determined that the mower was unreasonably dangerous to Jonathan [a bystander]. Because Deere & Company has not demonstrated that the errors did not contribute to the verdict obtained, I conclude that they were prejudicial.

Justice Ziegler did not participate.

Appellate opinions week of July 13, 2009

Wisconsin Supreme Court and Wisconsin Court of Appeals

Litigants leery of appellate court e-filing

Jack Zemlicka, Wisconsin Law Journal, July 10, 2009

Attorneys Erin M. Patterson and Raymond M. Dall’Osto of Gimbel, Reilly, Guerin & Brown in Milwaukee e-filed one of the first appellate briefs on July 2.

Patterson said the process was “bumpy” compared to the federal filing system, largely because you must have a password, username, PIN number and document access verification code to be able to enter information.

See Order on appellate electronic filing, 2009 WI 4

Judge Sonia Sotomayor Confirmation Hearings

On C-SPAN (via Althouse who will be liveblogging)

"Marquette and Madison are law schools of national stature..."

according to Judge Richard Posner's July 9, 2009 opinion in Wiesmueller v. Kosobucki (via comment by Daniel Suhr to Diploma-Privilege Case Continues, posted by Joseph D. Kearney at Marquette University Law School Faculty)

Wisconsin Supreme Court ducks, dodges and deadlocks

Ryan J. Foley of The Associated Press in the LaCrosse Tribune, July 13, 2009

On four occasions since March, justices have refused to issue rulings on cases after reviewing them for months.

In one, they deadlocked 3-3 after a member recused herself. In three others, they said they shouldn’t have taken the cases — a maneuver the court used that many times from 2006 to 2008 combined, according to a review of decisions.

(via The Wheeler Report)

Decision in 'Phelps v. Physicians Insurance Company of Wisconsin, Inc.' 2009 WI 74

Bystander cannot claim negligent infliction of emotional distress tied to malpractice, Wisconsin Supreme Court holds, by Alex De Grand, Legal Writer, State Bar of Wisconsin, July 14, 2009


Damages denied for dad who witnessed son's death, by Steven Walters, Milwaukee Journal Sentinel. Posted: July 10, 2009 (via The Wheeler Report)


State Supreme Court clarifies malpractice law: Bystanders ruled unable to claim emotional distress, by Ryan J. Foley of The Associated Press, Green Bay Press Gazette, July 11, 2009 (via WisPolitics)


The Wisconsin Supreme Court today issued its decision in this case (2006AP2599) reversing the Court of Appeals, 2008 WI App 6. See Argument.

An on-call resident physician was a “borrowed employee” of the hospital under the Seaman Body Corp. v. Industrial Commission, 204 Wis. 157, 235 N.W. 433 (1931) test. The hospital is a health care provider, so Wis. Stat. Ch. 655 applies. Negligent infliction of emotional distress to a bystander is not a claim for medical negligence permitted under Wis. Stat. §§ 655.005(1) and 655.007.

Opinion by Justice Roggensack. Dissent by Justice Bradley, with Chief Justice Abrahamson.

Decision in 'Farmers Automobile Insurance Association v. Union Pacific Railway Company' 2009 WI 73

Appraisal Provision Validated: Setting the amount of insured loss, by Monte E. Weiss & Charles W. Kramer, Wisconsin Lawyer, February 2010


Memo To The New Justices: That’s Not How We Do Things On The Court, Edward A. Fallone at Marquette University Law Faculty, November 25, 2009


Appraisal awards presumed valid, receive limited review, says Wisconsin Supreme Court, by Alex De Grand, State Bar of Wisconsin, July 27, 2009


The Wisconsin Supreme Court today issued its decision in this case (2007AP1992) affirming the Court of Appeals, 2008 WI App 116. See Argument. Opinion by Justice Gableman.

¶3 We hold that the circuit court did not erroneously exercise its discretion in enforcing the agreement between the parties to participate in the binding appraisal process. We also hold that the circuit court properly affirmed the appraisal award because there was no evidence that the appraisers engaged in fraud, bad faith, material mistake, or that they lacked understanding of their contractually assigned task. Finally, we hold that the circuit court did not erroneously exercise its discretion when it denied Donaubauer the opportunity to conduct discovery into the appraisal process.

Dissent by Justice Bradley, with Chief Justice Abrahamson.

¶57 The majority, however, seems oblivious to the necessity of establishing minimum standards for fairness in the appraisal process because it: (1) allows for the forfeiture of an important right by erroneously reading into the appraisal clause the word "binding" where it does not exist; (2) appears to constrain meaningful review of an appraisal award under most circumstances by limiting review to the face of the award; and (3) affirms the circuit court's erroneous decision refusing to permit Donaubauer to conduct necessary discovery in an action in the circuit court to invalidate the appraisal award.

Supreme Court accepts one new case

The Wisconsin Supreme Court announced it has granted review in State v. Carter (2008AP1185-CR). See Supreme Court pending cases July 6, 2009.


Among the cases not accepted were:

PSC v. Andrews (2007AP2673)
Justice Roggensack dissents.

State v. Bell (2008AP1003-CR)
Justice Bradley dissents.

Cartlein Inv. v. Boyd (2008AP1538-FT)
Chief Justice Abrahamson dissents.

Diploma privilege back to trial court

David Ziemer, Wisconsin Law Journal, July 9, 2009, on a Seventh Circuit decision

The court rejected the state’s argument that the study of law at a Wisconsin law school is a reasonable substitute for passing the bar exam.

Given the procedural history of the case -– dismissal on the pleadings -– the court found an “evidentiary vacuum” that prevented it from deciding whether that contention by the state is true.

See 7th Circuit takes on diploma privilege


Update: Challenge to ‘diploma privilege’ reinstated by U.S. Court of Appeals, by Alex De Grand, State Bar of Wisconsin, July 9, 2009


Update: Lawsuit challenges policy that lets some grads skip bar exam by Erica Perez, Milwaukee Journal Sentinel. Posted: July 12, 2009

Decision in 'Osborn v. Dennison' 2009 WI 72

Disappointed seller of real estate can’t keep earnest money and sue breaching buyer, by Alex De Grand, State Bar of Wisconsin, July 23, 2009


WB-11 Residential Offer to Purchase - Prerequistie to Sellers suit for actual damages where Buyer defaults, Real Property News, July 10, 2009, Real Property Probate and Trust Law Section, State Bar of Wisconsin


The Wisconsin Supreme Court today issued its decision in this case (2007AP1799) affirming the Court of Appeals, 2008 WI App 139. See Argument. Opinion by Justice Prosser for a unanimous court.

Decision in 'Behrendt v. Gulf Underwriters Ins. Co.' 2009 WI 71

Justices clarify meaning of foreseeable harm in negligence claims, by Alex De Grand, State Bar of Wisconsin, July 21, 2009


Duty of care remains thorny issue, by David Ziemer, Wisconsin Law Journal, July 15, 2009


The Wisconsin Supreme Court today issued its decision in this case (2006AP2910) affirming the Court of Appeals. See Argument.
Opinion by Justice Crooks.
Concurrence by Chief Justice Abrahamson.
Concurrence by Justice Roggensack, with Justices Ziegler and Gableman.

Decision in 'Hocking v. City of Dodgeville' 2009 WI 70

Duty of care remains thorny issue, by David Ziemer, Wisconsin Law Journal, July 15, 2009


Does an uphill landowner have a duty to abate naturally occuring surface water that runs downhill on another property? Real Property News, July 10, 2009, Real Property Probate and Trust Law Section, State Bar of Wisconsin


The Wisconsin Supreme Court today issued its decision in this case (2007AP1754) affirming the Circuit Court, on certification from the Court of Appeals. See Argument. Opinion by Justice Ziegler. Concurrence by Chief Justice Abrahamson, with Justice Bradley. Justice Crooks did not participate.

Decision in 'State v. McClaren' 2009 WI 69

Prosecutor entitled to defendant’s state-of-mind evidence in self-defense cases, by Alex De Grand, State Bar of Wisconsin, July 10, 2009


The Wisconsin Supreme Court today issued its decision in this case (2007AP2382-CR) reversing the Court of Appeals, 2008 WI App 118. See Argument. Opinion by Justice Crooks. Dissent by Justice Bradley. Chief Justice Abrahamson did not participate.

Decision in 'State v. Miller' District IV

Court issues decision for third time, by David Ziemer, Wisconsin Law Journal, July 8, 2009


The Wisconsin Court of Appeals on July 2, 2009 issued its decision in this case (2007AP1052-CR) affirming in part and reversing in part the Circuit Court. Recommended for publication. Opinion by Presiding Judge Higginbotham. Dissent in part by Judge Vergeront.

Decision in 'Kuehne v. Burdette' District III

Court says law to create village unconstitutional, by Associated Press, Wisconsin State Journal (via The Wheeler Report)


The Wisconsin Court of Appeals on July 7, 2009 issued its decision in this case (2008CV406) affirming the Circuit Court. Recommended for publication. Opinion by Judge Peterson for a unanimous court.

Supreme Court pending cases July 6, 2009

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

updated with the July 1, 2009 grant of petition for review in [State v. Carter] 2008AP1185-CR

Decision in 'Luckett v. Bodner' 2009 WI 68

High court finds broad discretion: Prejudice must be to merits of the case, by David Ziemer, July 9, 2009


Litigant must show more than burden of having to prove once-settled matter to prevent withdrawal of admission, by Alex De Grand, State Bar of Wisconsin, July 8, 2009


The Wisconsin Supreme Court today issued its decision in this case (2007AP308) affirming the Court of Appeals. See Argument.

¶41 The circuit court's discretionary determination that withdrawal of the plaintiffs' admissions will subserve the presentation of the merits of the action was not an erroneous exercise of discretion. The parties in the instant case evidently regard the question of Ms. Luckett's damages for conscious pain and suffering as a key issue that they will dispute at trial. The plaintiffs' admissions, if allowed to stand, would effectively eliminate a determination on the merits of these issues. Thus, granting the plaintiffs' motion to withdraw the admissions will aid in the ascertainment of the truth and the development of the merits.
...
¶70 ... The case law is clear that the party opposing a motion to withdraw or amend an admission "must show prejudice in addition to the inherent consequence that the party will now have to prove something that would have been deemed conclusively established if the opposing party were held to its admissions."[42] As we have stated, the defendants will not be prejudiced in maintaining a defense on the merits if they are placed in the same position they would have been in had the admissions not been mistakenly made.

Concurrence by Justice Ziegler, with Justices Roggensack and Gableman

¶79 The problem with the defense's argument now is that even if the defense is placed back in the position they would have been at the time of the admission, the defense fails to show that an expert would be able to do something different than he or she could do now. The burden was on the defense to show the circuit court how they are prejudiced by that admission being withdrawn and how it impacts their ability to go back any differently than it does now. If the timing of the persistent vegetative state admission and withdrawal were different, then the outcome in this case could be different. There simply is no showing of that prejudice.

Dissent by Justice Prosser

¶112 In my view, and also in the view of the majority, the circuit court applied the wrong legal standard. The court also failed to examine the relevant facts in that there were no facts to support withdrawal of two of the three admissions. It misstated facts in its written decision in relation to August and September 2000, showing that it was operating under a misunderstanding. Finally, the court concluded that requiring the defendants to defend 30 times the period of exposure that they had to defend before the requested withdrawal was a factor that it could not even consider in assessing prejudice.

¶113 This was an erroneous exercise of discretion. When the majority disregards a court's multiple errors, it rewrites the law on erroneous exercise of discretion.
...
¶132 When the circuit court decided to allow the withdrawal of the three admissions, it knew the prejudicial consequences of its ruling. The projected three-week trial scheduled for February 5, 2007, would have to be rescheduled. This would cause additional delay in a case that had been ongoing since December 5, 2003, and had already been bumped once the year before. This was prejudice in and of itself because it delayed the final disposition of the matter, it caused an increase in costs, and it disrupted the judicial process.[footnote omitted]

Decision in 'Genrich v. OHIC Insurance Company' 2009 WI 67

Wrongful death claim can predate death, by David Ziemer, Wisconsin Law Journal, July 10, 2009


Time to file wrongful death claim begins with negligent medical treatment, not death, by Alex De Grand, State Bar of Wisconsin, July 7, 2009


The Wisconsin Supreme Court today issued its decision in this case (2007AP541) affirming the Court of Appeals, . See Argument.
Opinion by Justice Roggensack

¶2 Because we conclude that Robert suffered an "injury" for purposes of Wis. Stat. § 893.55(1m)(a) when he experienced a "physical injurious change," and that the "physical injurious change" occurred more than three years prior to the filing of the estate's claim, we conclude that the estate's claim is time-barred by § 893.55(1m)(a). We further conclude that Kathy's wrongful death claim based on Robert's death that allegedly was caused by medical negligence accrued on the same date as the estate's claim. Therefore, it, too, is precluded by § 893.55(1m)(a).

Concurrence and dissent by Justice Bradley, with Chief Justice Abrahamson and Justice Crooks

¶72 What is particularly troublesome is that all of the uncertainty engendered by the majority's analysis is unnecessary. The majority has no need to determine that "the presence of an infection-causing sponge" is an injury.

¶73 The estate's claim for medical malpractice was not filed until August 9, 2006, three years and one day after the circuit court determined that the action accrued. Even if Robert's injury occurred as late as August 8, 2003, the estate's medical malpractice claim accrued more than three years before the claim was filed. Thus, I agree that the claim is barred by the statute of limitations.
...
¶85 Here, the majority fails to elucidate a clear standard for determining whether a court's statement is dicta. Instead, it employs the term dicta selectively to dismiss a difficult proposition from a prior decision without meaningful analysis.

Concurrence and dissent by Justice Crooks, with Chief Justice Abrahamson and Justice Bradley

¶90 Because long-standing precedent in Wisconsin establishes the date of death as the date on which a wrongful death claim accrues, and because the majority rule creates an unnecessary exception to this sensible approach, I respectfully dissent from that portion of the majority opinion.

¶91 I agree with the majority, however, that the estate's claim for injury to Robert Genrich allegedly caused by medical malpractice is time-barred because of the application of Wis. Stat. § 893.55(1m)(a).
...
¶99 In the case before the court, since Robert Genrich had a claim at the time of his death on August 11, 2003, his surviving spouse, Kathy Genrich, had a claim for wrongful death that accrued on that date——the date of his death. This wrongful death claim, therefore, was brought within the applicable statute of limitations when commenced on August 9, 2006.

Decision in 'Polsky v. Virnich' 2009 WI 66

State Supreme Court deadlocks on compensation case, by Judy Newman, Wisconsin State Journal (via WisPolitics)


The Wisconsin Supreme Court today issued its decision in this case (2007AP203) vacating acceptance of certification by the Court of Appeals and remanding to it. See Argument. Opinion Per Curiam. Justice Roggensack did not participate.

¶1 ... The court is equally divided on whether to affirm or reverse the judgment of the circuit court. Chief Justice Shirley S. Abrahamson, Justice Ann Walsh Bradley, and Justice N. Patrick Crooks would affirm. Justice David T. Prosser, Jr., Justice Annette Kingsland Ziegler, and Justice Michael J. Gableman would reverse. ...

¶2 When a certification or bypass results in a tie vote by this court, the better course of action is to vacate our decision to accept certification or bypass and remand the cause to the court of appeals. ...

Decision in 'Office of Lawyer Regulation v. McKloskey' 2009 WI 65

The Wisconsin Supreme Court today issued its decision in this case (2007AP2135-D) ordering the 60 day suspension recommended by the referree. Opinion Per Curiam.

Appellate opinions week of July 6, 2009

Wisconsin Supreme Court and Wisconsin Court of Appeals

Yearly Oral Argument Schedule: 2009 - 2010 Term

The Wisconsin Supreme Court, July 2, 2009, [html | pdf] subject to change

2009
September 11, 15, 18
October 13, 20, 21
November 3, 10, 11
December 1, 2, 8
2010
January 5, 6, 7
February 9, 10, 11
March 2, 3, 9
April 12, 13, 15, 16, 28, 29
May 3, 4

Decision in 'Office of Lawyer Regulation v. Winch' 2009 WI 64

The Wisconsin Supreme Court today issued its decision in this case (2008AP3016-D) ordering the stipulated three year suspension. Opinion Per Curiam

"Overlawyered" in its eleventh year

Mickey Kaus, yesterday, with congratulations to

Walter Olson [who] started his Overlawyered blog 10 years ago. The high process costs of litigation are what lawyers--for obvious reasons--habitually leave out of their let's-have-notice-and-a-hearing-for-everything reasoning. One thing Olson does is to put them back in.

Order on transfer of post-judgment child support cases to tribal court, 2009 WI 63

The Wisconsin Supreme Court on July 1, 2009 issued an order [html | pdf] effective immediately. See Rule governing the discretionary transfer of cases to tribal court 2008 WI 114

The court agreed to amend the proposal to reflect a suggestion from the Wisconsin Department of Justice requiring an explicit finding of concurrent jurisdiction as part of the amendment. ... A majority of the court then confirmed its decision to grant the request of the Department. Justice Patience Drake Roggensack stated she dissented from the adoption of the amendment and made a statement on the record explaining the basis for her dissent. She was joined by Justice Ziegler and Justice Gableman.

In the matter of the petition to create a rule governing the discretionary transfer of cases to tribal court (07-11A)

Order for IOLTA comparability, 2009 WI 62

The Wisconsin Supreme Court on July 1, 2009 issued an order [html | pdf] effective January 1, 2010. See WisTAF and banks meet in friendly debate at Wisconsin Supreme Court on petition seeking comparable interest rates on IOLTA accounts.

the court granted the petition with modifications. Justice Ziegler did not participate. Justice Roggensack dissented from the adoption of the removal provision, SCR 20:1.15 (cm)(2)d., of the rule, and Justice Roggensack and Justice Gableman dissented from the adoption of that portion of the rule which permits the use of sweep accounts for IOLTA accounts.

In the matter of amendment of SCR 20:1.15 Safekeeping property; trust accounts and fiduciary accounts (08-03)

Petition filed to permit expungement of records without statutory authorization

On June 30, 2009, Diane S. Diel, President, State Bar of Wisconsin, filed a Petition with the Wisconsin Supreme Court to permit courts to expunge records, even in the absence of statutory authority, on the basis of their inherent authority. Among the reasons given is (pp. 11-12)

As this Court is aware, CCAP can be reviewed by anyone with internet access and the information contained on the website is regularly misused. CCAP publishes the original criminal case information regardless of the outcome of the case. Court records may also be open to public inspection at each county courthouse. To allow continued access to such easily misunderstood information especially in cases in which the case was dismissed or there was a judgment of acquittal, poses the risk that such a record could be “a vehicle for improper purposes,” whether intentional or not. Nixon [v. Warner Communications, Inc.], 435 U.S. [589] at 597.

In the Matter of: The Petition of the State Bar of Wisconsin to Modify Chapter 72 of the Supreme Court Rules (09-07)

Decision in 'Office of Lawyer Regulation v. Molinaro' 2009 WI 61

The Wisconsin Supreme Court today issued its decision in this case (2007AP869-D) imposing a 60 day suspension, rather than the referee's recommended 30 months, and requiring reimbursement of less than the entire cost of the proceeedings. Opinion Per Curiam

Appellate opinions week of June 29, 2009

Wisconsin Supreme Court, Wisconsin Court of Appeals before July 1, 2009 (non-citable unpublished), and Wisconsin Court of Appeals after June 30, 2009 (citable unpublished), see Order permitting citing unpublished Court of Appeals opinions, 2009 WI 2


Citation of unpublished opinions starts July 1, by David Ziemer, Wisconsin Law Journal, June 24, 2009


Committee to study impact of allowing unpublished opinion cites, The Third Branch, Spring 2009 (via WisBlawg)

The Supreme Court ordered that a committee be convened to gather information on the impact of the rule amendment. Over a three-year period the committee will compile statistics and analyze trends of filings and dispositions as they relate to unpublished opinions.