America’s Vital Interests

Ted McAllister at First Principles, Part I, August 10, 2009, Part II, August 12, 2009

Decision in 'Village of Newburg v. Town of Trenton' District II

Zoning change found by its effect, not its label, says Wisconsin Court of Appeals, by Alex De Grand, State Bar of Wisconsin, August 27, 2009


The Wisconsin Court of Appeals August 26, 2009 issued its decision in this case (2008AP2997) reversing the Circuit Court. Opinion by Chief Judge Brown. Recommended for publication.

This can't be right

Defendants who are not actually repeat offenders can nevertheless be sentenced as such, if they were erroneously classified as such at the time of the offense.

[State v. Justiniano (2008AP2783-CR and 2008AP2784-CR) -TRB]

Petition filed to further limit uses of compulsory State Bar dues

Forty-three attorneys file petition to restrict use of dues, by David Ziemer, Wisconsin Law Journal, August 27, 2009


On August 24, 2009 Steven Levine and 42 other state bar members filed a Petition with the Wisconsin Supreme Court to amend SCR 10.03(5)(b)1 as follows.

The State Bar may engage in and fund any activity that is reasonably intended for the purposes of the association. The State Bar may not use compulsory dues of any member who objects to that use for political or ideological activities that are not reasonably intended for the purpose of regulating the legal profession or improving the quality of legal services. The state bar shall fund those political or ideological activities by the use of voluntary dues, user fees or other sources of revenue.

Petition to Amend SCR 10.03(5)(b)1 (09-08)

See Arbitrator determines that Public Image Campaign funding was properly treated by the Bar for dues purposes.

Senate judiciary committee approves Impartial Justice Bill...

"Senate judiciary committee approves Impartial Justice Bill, holds hearing on Family Justice Bill, medical malpractice, increased statute of limitations for intentional torts"

Adam Korbitz, our State Bar's Government Relations Coordinator, with an August 25, 2009 report on pending legislation.

Imagine ... the Tenth Amendment

Imagine if every federal judge in the nation stopped taking criminal cases that don't belong in federal court in the first place. Not what John Lennon might have had in mind, but alot closer to what James Madison would have had in mind than what we have today.

Appellate opinions week of August 24, 2009

Wisconsin Court of Appeals

Supreme Court accepts four new cases

Announced August 24, 2009, the accepted cases, with synopses, are:

State v. Conger (2008AP755-CR)

Racine County v. Oracular Milwaukee, Inc. (2007AP2861)

Groshek v. Trewin (2008AP787)

Milwaukee Symphony v. Department of Revenue (2008AP1684)

See Supreme Court pending cases August 19, 2009

Appellate Judicial Efficiency

Andrew Hitt at Marquette University Law School Faculty Blog

The Wisconsin Supreme Court should work towards releasing a steady flow of cases throughout the term. ... while the Wisconsin Supreme Court released over 70 percent of its opinions in May, June, and July, the United States Supreme Court released only 40 percent during that same period.

'International Outsourcing Law and Practice', reviewed by Seamus G. Flaherty

International Outsourcing Law and Practice, edited by Herald Jongen, reviewed by Seamus G. Flaherty, Wisconsin Lawyer, June 2009

Minimum markup ruling will be appealed after all

David Ziemer, Wisconsin Law Journal, August 20, 2009


See Federal court rules minimum mark-up law unconstitutional.

Massachusetts adopts "pro rata" allocation

John T. Harding of Morrison Mahoney LLP, Boston, Massachusetts, writes in "This Week's Feature" in DRI's The Voice, August 19, 2009, on Boston Gas Company v. Century Indemnity Company, 454 Mass. 337, 2009 Mass. LEXIS 419 (2009). Where an insurer had liability policies in effect during only part of the time of an ongoing loss, the Massachusetts Supreme Judicial Court held that the "during the policy period" language in the insurance policy required allocation pro rata by time on the risk. (See Justice Gableman's dissent in the Decision in 'Plastics Engineering Co. v. Liberty Mutual Ins. Co.' 2009 WI 13.)

Voluntary Dismissal

Even though the district court concluded it lacked authority to grant relief from a voluntary dismissal, the Seventh Circuit reviewed the decision for abuse of discretion. Go figure.

Supreme Court pending cases August 19, 2009

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

Adding August 17, 2009 grants of review and certification

Racine County v. Oracular Milwaukee, Inc. (2007AP2861) review of the Court of Appeals decision, 2009 WI App 58, granted on the issues:

Is expert testimony required to prove a breach of contract claim based on timely completion/delay when a contract involves complex interdependent bilateral performance?

What is the proper analysis/criteria for determining whether something is considered a “profession” under Wisconsin law?

Are persons providing computer software programming services relating to customized software considered “professionals” under Wisconsin law?

Supreme Court to hear programming lawsuit, Regional News Briefs, Milwaukee Journal Sentinel, August 23, 2009


State v. Conger (2008AP755-CR) certification by the Court of Appeals accepted on the issues:

What is the trial court’s scope of review when deciding whether to accept or reject a plea agreement?

What factors must a trial court consider when determining whether a plea agreement is in the public interest?

May a trial court take into account the view of law enforcement when considering the public’s interest in a plea agreement?

Groshek v. Trewin (2008AP787) review of the Court of Appeals decision granted on the issues

May punitive damages be awarded to a plaintiff who sought and obtained equitable relief?

Does an attorney owe a fiduciary duty to former clients when negotiating and entering into a transaction with them, when they are represented by independent successor counsel, and allegedly have sought out the transaction and initiated negotiations?

Milwaukee Symphony Orchestra v. Wisconsin Dept. of Revenue (2008AP1684) review of the Court of Appeals decision, 2009 WI App 69, granted on the issue

Does the term “entertainment” as used in Wis. Stat. § 77.52(2)(a)2. include the admission to a symphonic event, such as performed by the Milwaukee Symphony Orchestra?

Supreme Court to hear orchestra tax dispute, by Bruce Vielmetti, Proof and Hearsay, Milwaukee Journal Sentinel, August 21, 2009

Decision in 'State v. Bailey' District I

Suspect’s 'persistence' in furtive-type movements can be part of basis for search, court of appeals says, by Alex De Grand, State Bar of Wisconsin, August 17, 2009


The Wisconsin Court of Appeals yesterday issued its decision in this case (2008AP3153) affirming the Circuit Court. Opinion by Judge Brennan. Recommended for publication.

Appellate opinions week of August 17, 2009

Wisconsin Court of Appeals

State AG Tracker, Vol. 1, No. 4, 2009

In the latest issue of this Federalist Society publication, Matthew R. Salzwedel and Devona Wells discuss the National Arbitration Forum Settlement with Minnesota Attorney General

'Cases and Materials on Civil Terrorism Law', reviewed by Kevin L. Ferguson

Cases and Materials on Civil Terrorism Law, by David J. Strachman and James P. Steck, reviewed by Kevin L. Ferguson, Wisconsin Lawyer, June 2009

Reimbursement claim denied

The Wisconsin Court of Appeals held that the legislature sub silentio extinguished the right of tortfeasors to seek reimbursement from a plaintiff's health care providers, if the doctor performed unnecessary medical treatments.

The statutory explanations are questionable, but the policy discussion is laughable. The court found that to permit recovery would "enter a field that has no sensible or just stopping point." However, the right to reimbursement that the court held extinguished has existed at common law since at least 1920. I understand when a court says that it refuses to recognize some new-fangled cause of action because to do so would enter a field with no just stopping point. But how can any court possibly make such an assertion about a claim that has existed at common law for almost one hundred years, and has only been questioned in the last year or two?

[Konkel v. Acuity (2008AP2156) -TRB]

Decision in 'Kraenzler v. Brace' District II

Parties cannot contract away all debtor rights in security agreement, court of appeals says, by Alex De Grand, State Bar of Wisconsin, August 13, 2009


The Wisconsin Court of Appeals August 5, 2009 issued its decision in this case (2008AP1709) reversing the Circuit Court. Opinion by Chief Judge Brown. Recommended for publication.

Ziegler bumps Crooks from majority top spot

David Ziemer on the Wisconsin Supreme Court's 2008-2009 term, Wisconsin Law Journal, August 10, 2009

Hoffman v. Red Owl Stores: The Rest of The Story

William C. Whitford and Stewart Macaulay of the University of Wisconsin Law School revisit this case after locating and interviewing plaintiff Joseph Hoffmann. Here's the abstract.

Hoffman v. Red Owl Stores [26 Wis.2d 683, 133 N.W.2d 267 (1965)] is one of the most famous 20th century cases in American contract law, usually credited both with expanding the reach of the promissory estoppel doctrine and with opening up the issue of liability for precontractual reliance. It is a staple in contracts casebooks. By fortunate circumstance we have located the plaintiff, who retains a vivid memory about many of the circumstances in his famous case. We have interviewed him and we have examined the full trial record as well as the briefs on appeal. In this article we tell the story of what we have learned about this famous case, including what happened after the appellate decision. We conclude that a fuller understanding of the facts provides information about a promise that was made, yet was not described in the Court’s opinion. This promise supports the outcome of the litigation . Justice was done! The plaintiff substantially relied to his detriment after receiving specific assurances from an authorized agent of the defendant that he would receive a franchise if he relied by selling his bakery building and business. Reimbursing precontractual reliance in this circumstance can be done without creating a rule that would justify reimbursement of precontractual reliance in all circumstances.

Univ. of Wisconsin Legal Studies Research Paper No. 1085, July 30, 2009


(via the Wisconsin Law Journal Blawg Log)

Hate Crimes Law

I could have guessed as much without even reading the bill, but on close examination, there is no doubt: the Matthew Shepard Hate Crimes Prevention Act, recently passed by the Senate, far exceeds Congress' power under the Commerce Clause.

Appellate opinions week of August 10, 2009

Wisconsin Court of Appeals

Decision in 'Donaldson v. West Bend Mutual Insurance Company' District I

Complaint tolls time for counterclaim, by David Ziemer, Wisconsin Law Journal, August 6, 2009


The Wisconsin Court of Appeals August 4, 2009 issued its decision in this case (2008AP2289) reversing the Circuit Court. Opinion by Judge Kessler, Recommended for publication.

There is no Particular Format Required for a District Court’s Evaluation Under 'Daubert'

Seventh Circuit Summary, by Patrick J. Kenny, in DRI's Daubert Online, Volume 1, Issue 8

Decision in 'State v. Bowser' District IV

State protocol for child porn access upheld, by David Ziemer, Wisconsin Law Journal, August 4, 2009


The Wisconsin Court of Appeals July 30, 2009 issued its decision in this case (2008AP206-CR) affirming the Circuit Court. Opinion by Presiding Judge Higginbotham. Dissent by Judge Dykman. Recommended for publication.

Conditional admission in abeyance

The Wisconsin Supreme Court August 3, 2009 issued an order [html | pdf] that the pending petition on conditional admission to the bar be held in abeyance until it can be scheduled for hearing along with the related petition (08-28) on creating a program to monitor lawyers conditionally admitted. In the Matter of Creation of Supreme Court Rule 40.075 Relating to Conditional Admission to the Bar (08-13)

See Hearing and Conference on Conditional Admission to the Bar

Appellate opinions week of August 3, 2009

Wisconsin Court of Appeals

The 25 Greatest Legal TV Shows

Stephanie Francis Ward reports in the August 2009 ABA Journal on the results from a panel of judges, and also lists Honorable Mentions.

Among series not mentioned were The Tony Randall Show (1976-1978) and The Associates (1979-1980).

Via David R. Papke at Marquette University Law School Faculty who served as a judge.

Decision in 'Olson v. Darlington Mutual Ins. Co.' District IV

Court nixes jury instruction on damage limits, by David Ziemer, Wisconsin Law Journal, July 31, 2009


The Wisconsin Court of Appeals July 23, 2009 issued its decision in this case (2008AP1744) reversing the Circuit Court. Opinion by Judge Dykman. Recommended for publication.

Decision in 'Xerox Corporation v. Department of Revenue' Distict IV

Agency’s expertise in applying statute, not subject matter governed, is basis to defer to its interpretation, by Alex De Grand, State Bar of Wisconsin, August 11, 2009


Xerox loses tax dispute with state, by Associated Press, The Capital Times (via The Wheeler Report)


The Wisconsin Court of Appeals July 30, 2009, issued its decision in this case (2007AP2884) affirming the Circuit Court. Opinion by Presiding Judge Higginbotham. Recommended for Publication.

ABA Watch August 2009

In this issue, we offer an overview of the ABA’s Standing Committee on the Federal Judicial Committee and its evaluation of United States Supreme Court nominee Sonia Sotomayor. We also discuss a recent study evaluating the Committee’s judicial ratings. And, as in the past, we digest and summarize actions before the House of Delegates.