Conference on the Wisconsin Supreme Court: Review and Preview

Rick Esenberg at Shark and Shepherd with a summary of this event held Friday at Marquette Law School

Recusal not required on account of campaign contribution, independent expenditure of party to proceedings

Alex De Grand, State Bar of Wisconsin, October 28, 2009, reports

A divided Wisconsin Supreme Court voted today to adopt a petition to amend the Code of Judicial Conduct so that the receipt of a campaign contribution from a party in a proceeding cannot be the sole reason for a judge to recuse him or herself.

Similarly, the justices voted to amend the Code of Judicial Conduct so that a judge is not required to recuse him or herself where a party to the proceedings sponsored an independent expenditure or issue advocacy during the judicial campaign.

See Preview of Hearing and Conference on rules for recusal

Supreme Court shapes recusal standards, by Jack Zemlicka, Wisconsin Law Journal, October 29, 2009

Courting Politics, by Christian Schneider, WPRI, October 28, 2009 10:37 am (via WisOpinion)

Under new law, petitions for review must wait

David Ziemer, Wisconsin Law Journal, July 10, 2009, on changes in appellate procedure taking effect November 1, 2009:

a motion for reconsideration must be filed within 20 days of the date of the Court of Appeals’ decision, and the 30-day time limit for filing the petition for review starts on the date the Court of Appeals either denies the motion or issues an amended decision. [2009 Wisconsin Act 25]
...
appeals in Chapter 980 cases (sexually violent persons commitments) and sec. 971.17 (not guilty by reason of mental disease or defect), are subject to the appeal procedures in Rules 809.30 – 809.32, rather than Rule 808.04 and 809.30. [2009 Wisconsin Act 26]
...
allow suppression of evidence issues to be raised on appeal in delinquency cases, despite entry of a guilty, no contest, or Alford plea. [2009 Wisconsin Act 27]

Understanding new appellate procedure rules, by April M. Southwick, Wisconsin Judicial Council, State Bar of Wisconsin, September 2, 2009

These people can't be serious

Believe it or not, there exists a special interest group even more powerful than the teacher's union: the Wisconsin Coalition Against Sexual Assault.

Petition filed by Justice Bablitch on rules for recusal

Yesterday retired Supreme Court Justice William A. Bablitch filed a Petition asking for a rule requiring recusal when "a person or entity having a direct or indirect interest in the outcome of the case" contributes $10,000 or more to the judge's campaign or an organization which did so but will not disclose its contributors. It further asks that the petition be heard along with those of the League of Women Voters of Wisconsin Education Fund, Inc., Wisconsin Realtors Association, and Wisconsin Manufacturers and Commerce on October 28, 2009. In the Matter of Amending the Code of Judicial Conduct (09-11). See Preview of Hearing and Conference on rules for recusal.

Preview of Hearing and Conference on court record retention

November 2, 2009 9:45 a.m. In re amendment of SCR 72.01 regarding record retention (09-02), see the Wisconsin Supreme Court Pending Rules Petitions Scheduled For Public Hearing [html|pdf], and Order for Hearing [html| pdf]. See Petition filed on court record retention.

Preview of Hearing and Conference on required court reporting

October 29, 2009 9:30 a.m. In re amendment of SCR 71.01 regarding required court reporting (09-05)

On the Wisconsin Supreme Court Pending Rules Petitions Scheduled For Public Hearing [html|pdf]

The Order for Hearing [html|pdf] says,

On June 5, 2009, the Director of State Courts, on the recommendation of the Committee of Chief Judges and District Court Administrators, petitioned [Addendum] this court to amend Supreme Court Rule (SCR) 71.01(2) governing the reporting of court proceedings.

See Petition filed on reporting recordings played during trial

Preview of Hearing and Conference on lawyer support, monitoring, and referral procedures

October 29, 2009 9:30 a.m. In the Matter of the Petition for Lawyer Support and Monitoring and Procedures for Referrals from the Office of Lawyer Regulation (08-28)

On the Wisconsin Supreme Court Pending Rules Petitions Scheduled For Public Hearing [html|pdf]

The Order for Hearing [html|pdf] says,

On December 29, 2008, the State Bar of Wisconsin (State Bar), by its then-President, Diane S. Diel, and the Office of Lawyer Regulation (OLR), by its director, Keith R. Sellen, jointly petitioned [Appendix A; Appendix B] this court to establish procedures for lawyer support and monitoring within the State Bar and for OLR to refer lawyers for assessment, treatment, and monitoring.

See Conditional admission in abeyance

J.B. Van Hollen with CYPM October 27, 2009

Conservative Young Professionals of Milwaukee hosts Wisconsin Attorney General J.B. Van Hollen October 27, 2009 at The Palms, 221 North Broadway. The event runs from 5:30 to 8:00 p.m., with remarks by Mr. Van Hollen at 6:30.

Preview of Hearing and Conference on classes of State Bar membership

October 29, 2009 9:30 a.m. In the matter of: The petition of the State Bar of Wisconsin proposing revisions to SCR 10.03(3), relating to classes of membership (08-27)

On the Wisconsin Supreme Court Pending Rules Petitions Scheduled For Public Hearing [html|pdf]

The Order for Hearing [html|pdf] says,

On October 31, 2008, the State Bar of Wisconsin, by its then-President, Diane S. Diel, petitioned this court to amend Supreme Court Rule (SCR) 10.03(3), relating to classes of membership in the State Bar.
...
IT IS FURTHER ORDERED that at the court's conference in this matter, the court may discuss and consider Rule 06-09, In the Matter of the Petition of the United States Administrative Law Judges Appointed Under 5 U.S.C. § 3105 to Amend SCR 10.03(3)(a). [Petition; April 12, 2007 hearing audio]

See Bar petitions on ALJ as judicial members

Contest Time

Enter your law firm in a contest and win first prize -- the book of your choice by either Ayn Rand or Richard Epstein.

Petition filed by WMC on rules for recusal

On October 16, 2009 Wisconsin Manufacturers & Commerce filed a Petition and supporting memorandum with the Wisconsin Supreme Court asking that contributions independent of a judicial candididates campaign not be grounds for recusal. It further asks that the petition be heard along with those of the League of Women Voters of Wisconsin Education Fund, Inc. and Wisconsin Realtors Association on October 28, 2009. In the Matter of Amending the Code of Judicial Conduct (09-10). See Preview of Hearing and Conference on rules for recusal.

Decision in 'Office of Lawyer Regulation v. Trudgeon' 2009 WI 96

Wisconsin Supreme Court decision today in this case (2008AP2558-D) accepting the referee's recommendation and ordering a public reprimand. Opinion Per Curiam.

See 2009-2010 Term of the Wisconsin Supreme Court

Appellate opinions week of October 19, 2009

Wisconsin Supreme Court and Wisconsin Court of Appeals

Preview of Hearing and Conference on rules for recusal

October 28, 2009 9:30 a.m. In re creation of rules for recusal when a party or lawyer in a case made contribution effecting a judicial campaign (08-16) and In the Matter of Amending the Rules of Judicial Conduct (08-25) on the Wisconsin Supreme Court Pending Rules Petitions Scheduled For Public Hearing [html|pdf]

The Order for Hearing [html|pdf] says,

On June 20, 2008, the League of Women Voters of Wisconsin Education Fund petitioned this court to create Supreme Court Rules (SCRs) relating to recusal when a party in an action or the lawyers in an action have previously made a campaign contribution to or spent money on a media campaign relating to a judicial election for a judge who is presiding in the case. On July 28, 2009, the League of Women Voters of Wisconsin Education Fund filed an amended petition.

On September 30, 2008, the Wisconsin Realtors Association, Inc., petitioned [Attachment a, Attachment b, Attachment c] this court to amend the Code of Judicial Conduct to provide that the receipt of a lawful campaign contribution by a judicial campaign committee or an endorsement of a candidate does not, by itself, warrant judicial recusal.

Responses have been filed by Justice at Stake, Wisconsin Association for Justice, Brennan Center for Justice, State Bar of Wisconsin, and Center for Competitive Politics. Update: and by American Justice Partnership, State of Wisconsin, Department of Justice , and Attorney Robert R. Henak. Ten organizations filed Notices of Joinder in Petition 08-25 (Realtors), and Petition 09-10 (WMC). Update 2: Responses have also been filed by Wisconsin Democracy Campaign, and Wisconsin Association of Justice (second response).

Petition filed by WMC on rules for recusal October 16, 2009, In the Matter of Amending the Code of Judicial Conduct (09-10).

Petition filed by Justice Bablitch on rules for recusal, October 26, 2009, In the Matter of Amending the Code of Judicial Conduct (09-11).

See Two rules petitions not to be heard April 21

Supreme Court pending cases October 16, 2009

The Wisconsin Supreme Court posted an updated Table of Pending Cases [html | pdf] "Added the recently accepted case":

State v. Sveum (2008AP658-CR) review of the Court of Appeals decision, 2009 WI App 81, granted on the issues:

Does a warrantless placement of a Global Positioning System (GPS) tracking device on a vehicle and its subsequent 24-hour monitoring of the vehicle’s location on public roads by police violate the Fourth Amendment to the United States Constitution?

Does the Wisconsin Electronic Surveillance Control Law (Wis. Stat. §§968.27-.37) require judicial approval for the police to place a GPS tracking device on a vehicle to record its travel?

A Christian Nation?

Beyond Historical Blushing: A Plea for Constitutional Intelligence, by Robert F. Blomquist, 2009 Cardozo L. Rev. de novo 244. The abstract says,

In this Essay, Professor Blomquist responds to the remarks of Seth Tillman, which critiqued an article by Professor Geoffrey Stone on whether or not the Founders contemplated a “Christian Nation."

We Americans—We the People—relish our national Constitution and delight in the game of constitutional interpretation. The game of American constitutional interpretation recalls the complexity and nuance of other great games like the Glass Bead Game and Chess. In never-ending iterations about the meaning of our Constitution we pontificate and debate about intellectual antecedents, historical background, provisions of the Constitution, ratification, contemporary exigencies, and much more.

Seth Barrett Tillman has provided constitutional law “gamers” with two hard-hitting legal think pieces—one, a full-blown article in Penn State Law Review, the other, an abridged version of that article in Cardozo Law Review De Novo—evaluating and critiquing Professor Geoffrey R. Stone’s Melville B. Nimmer Memorial Lecture and Essay published in the UCLA Law Review. In this modest and concise Essay, I seek to praise Tillman’s intellectual virtues (while empathizing, in part, with Professor Stone). My pivoting gambit and larger purpose, however, is to urge legal scholars, jurists and lawyers to strive for what I call contextual constitutional intelligence in playing the vital game of interpreting our American Constitution.

Mr. Tillman was responding to Professor Geoffrey R. Stone, The World of the Framers: A Christian Nation?, 56 UCLA L. Rev. 1 (2008).

Preview of argument in 'State v. Carter'

October 21, 2009 11:00 a.m. State v. Carter (2006AP1811-CR)

This case is scheduled for argument [html | pdf] before the Wisconsin Supreme Court to review the Court of Appeals decision, 2007 WI App 255, on the issue [html | pdf]:

Is a defendant who is arrested in another state on both a violation of the other state’s criminal law and a Wisconsin-issued fugitive warrant based on pending criminal charges entitled to sentence credit on a concurrent sentence for the time spent in custody in the other state after arrest and before sentencing on the other state’s conviction?

Issue of Gableman recusal divides state Supreme Court, by Patrick Marley, Milwaukee Journal Sentinel. Posted: October 16, 2009

The court is split, but on what? by Rick Esenberg, Shark and Shepherd, October 21, 2009

Preview of argument in 'E-L Enterprises, Inc. v. Milwaukee Metropolitan Sewerage District'

October 21, 2009 9:45 a.m. E-L Enterprises, Inc. v. Milwaukee Metropolitan Sewerage District (2008AP921)

This case is scheduled for argument [html | pdf] before the Wisconsin Supreme Court to review the Court of Appeals decision, 2009 WI App 15, on the issues [html | pdf]:

Does a private landowner own the groundwater under its land such that the government’s use of groundwater under neighboring land constitutes a “taking”?

Is a building owner entitled to relief on a takings claim if the government’s use of groundwater caused reparable foundation damage but did not deprive the owner of all economically beneficial or productive use of its property?

Was the District’s use of groundwater an “occupation” of E-L’s property, entitling E-L to recover litigation expenses and attorney fees on an inverse condemnation claim under Wis. Stat. §32.10?

What is the applicability of the provisions regarding takings of property in the United States Constitution?

Tort or taking? Wisconsin Supreme Court to consider legal consequence of property damage linked to sewer construction, by Alex De Grand, State Bar of Wisconsin, Octtober 7, 2009

Preview of argument in 'State v. Harris'

October 20, 2009 2:00 p.m. State v. Harris (2008AP810-CR) in Dodgeville

This case is scheduled for argument [html | pdf] before the Wisconsin Supreme Court to review the Court of Appeals decision, on the issues [html | pdf]:

Do comments suggesting a circuit court considered a defendant’s race at sentencing provide an independent basis for vacating a sentence? Or must defendants continue to establish that a circuit court actually relied on irrelevant or improper factors like race?

If comments suggesting that a circuit court considered race at sentencing provide an independent basis for vacating sentences, what would a defendant need to prove to succeed?

If comments suggesting that a circuit court considered race at sentencing provide an independent basis for vacating sentences, what standard of review would apply?

If comments suggesting that a circuit court considered race at sentencing provide an independent basis for vacating sentences, must a defendant contemporaneously object to comments to preserve the right to raise the new resentencing claims?

Justices seek standard to judge offensive racial remarks during oral arguments in ‘baby mama’ case, by Alex De Grand, State Bar of Wisconsin, October 22, 2009

B-A-N-A-N-A-S Bananas! Bananas!

To politicians, the people who produce the wealth and pay their salaries are inferior primates who can't even be allowed sufficient liberty of contract to buy bananas for themselves.

Preview of argument in 'Bank Mutual v. S.J. Boyer Construction, Inc.'

October 20, 2009 11:00 a.m. Bank Mutual v. S.J. Boyer Construction, Inc. (2008AP912) in Dodgeville

This case is scheduled for argument [html | pdf] before the Wisconsin Supreme Court to review the Court of Appeals decision, 2009 WI App 14, on the issues [html | pdf]:

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?

Appellate opinions week of October 12, 2009

Wisconsin Court of Appeals

Preview of argument in 'State v. Henley'

October 20, 2009 9:00 a.m. State v. Henley (2008AP697-CR) in Dodgeville

This case is scheduled for argument [html | pdf] before the Wisconsin Supreme Court on certification from the Court of Appeals of the issues [html | pdf]:

Is the circuit court permitted to grant a new trial in the interest of justice under Wis. Stat. §805.15(1) without time limit?

If it is not so permitted, does the circuit court have inherent authority to grant this relief?

If it does not, may the Court of Appeals use its power of discretionary reversal under Wis. Stat. §752.35 to reach back to the original judgment of conviction and grant the same relief?

If it may not, does the Court of Appeals have inherent authority to grant such relief?

If it does not, should the Supreme Court exercise its inherent authority to grant relief in this case?

Argument in 'State v. Fischer'

The Wisconsin Supreme Court oral argument Assignment for the Month of October 2009 (September 22, 2009) [html | pdf] includes:

October 13, 2009 1:30 p.m. State v. Fischer (2007AP1898-CR)

The Wisconsin Supreme Court on February 10, 2009 granted the petition to review the Court of Appeals decision, 2008 WI App 152, in this case. The Table of Pending Cases (February 12, 2009) [html | pdf] says the issues are:

Were the defendant’s constitutional rights to a defense, a fair trial, and due process violated when exculpatory expert opinions were excluded pursuant to Wis. Stat. § 343.303?

Under Wisconsin law, is the trial court empowered to keep out expert opinion evidence for “invalidity,” when the evidence is relevant and the expert properly qualified?

Argument in 'Pawlowski v. American Family Mutual Ins. Co.'

The Wisconsin Supreme Court oral argument Assignment for the Month of October 2009 (September 22, 2009) [html | pdf] includes:

October 13, 2009 11:00 a.m. Pawlowski v. American Family Mutual Ins. Co. (2007AP2651)

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. The Table of Pending Cases (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?

According to the Synopsis

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 'Brunton v. Nuvell Credit Corporation'

The Wisconsin Supreme Court oral argument Assignment for the Month of October 2009 (September 22, 2009) [html | pdf] includes:

October 13, 2009 9:45 a.m. Brunton v. Nuvell Credit Corporation (2007AP1253).

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. The Table of Pending Cases (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?

According to the Synopsis,

This case examines jurisdictional issues arising from a car loan. More specifically, the Supreme Court has been asked to review when a defendant is deemed to have waived a challenge of improper venue under Wis. Stat. §421.104 – the Wisconsin Consumer Act’s venue provision.

Some background: In 2003, Denice Brunton bought a new car from Hesser Oldsmobile, Inc. Both Brunton and the dealership are in Rock County. Brunton and Hesser executed a monthly installment contract, which Nuvell Credit Corp. later purchased. In late 2005, Brunton fell behind in monthly payments to Nuvell. In November 2005, Nuvell began trying to collect the debt. Brunton felt Nuvell’s collection practices were improper.

In December 2005, Brunton filed a lawsuit against Nuvell in Dane County Circuit Court. The lawsuit alleged that Nuvell violated various provisions of the Wisconsin Consumer Act (WCA). In February 2006, Nuvell filed a Notice of Appearance and an Answer denying Brunton’s allegations. Over the next year, the parties litigated the dispute, engaging in discovery and making several court appearances.

In February 2007, Nuvell filed a motion for summary judgment asserting the court should dismiss the action for lack of jurisdiction on the theory that pursuant to the terms of the statute, the action was improperly venued in Dane County. Brunton responded that Nuvell had waived any challenge to venue by litigating the action for more than a year. The circuit court granted Nuvell’s motion for summary judgment. Brunton appealed and the Court of Appeals reversed.

Brunton has conceded that Dane County was not a proper venue for her action under § 421.401. The parties further agree that §421.401 (2) provides that a party who appears in an action brought under the WCA may waive an objection to improper venue. The question is when and how is improper venue waived?

The Court of Appeals then concluded that Nuvell “appear[ed] and waive[d]” its objection to improper venue within the meaning of Wis. Stat. §421.401(2) “at some point prior to filing its venue challenge.”

From Dane County.

Put this in your pipe and smoke it

The “Family Smoking Prevention and Tobacco Control Act” is destined for futility.

Appellate opinions week of October 5, 2009

Wisconsin Court of Appeals

Supreme Court pending cases October 1, 2009

The Wisconsin Supreme Court posted an updated Table of Pending Cases [html | pdf] which "Added recently accepted cases". Those not already included in the September 23, 2009 Table are:

State v. Ringer (2008AP652-CR) review of the Court of Appeals decision granted on the issues:

Under the court’s ruling in State v. DeSantis, 155 Wis. 2d 774, 456 N.W.2d 600 (1990), what is the necessary threshold to show that a victim’s previous rape allegations were untruthful?

May a prior untruthful allegation of sexual assault be proven by extrinsic evidence under State v. Rognrud, 156 Wis. 2d 783, 457 N.W.2d 573 (Ct. App. 1990)?

Did the State waive its right to raise the issue regarding proof by extrinsic evidence?

State v. Imani (2008AP1521-CR) review of the Court of Appeals decision, 2009 WI App 98, granted on the issue:

Whether a remand for a new trial or for a retrospective evidentiary hearing is the appropriate remedy following a circuit court’s omission to conduct a self-representation colloquy under State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997).

Maryland Arms Limited Partnership v. Connell (2008AP1700) review of the Court of Appeals decision, 2009 WI App 87, granted on the issue:

Can a landlord and tenant contractually agree to affix liability on a tenant for any property damage that, while caused by an act of the tenant, was not caused by the tenant’s negligence or improper use of the leased premises?

Supreme Court accepts eight new cases

The Wisconsin Supreme Court press release October 5, 2009 announced:

The cases accepted are:
State v. McGuire (2007AP2711-CR)
Admanco Inc. v. 700 Stanton Drive, LLC (2007AP2791)
State v. Ringer (2008AP652-CR)
State v. Pinkard (2008AP1204)
State v. Imani (2008AP1521-CR)
Maryland Arms Ltd. Partnership v. Connell (2008AP1700)
Sands v. Menard Inc. (2008AP1703)
Sheboygan Co. DHHS v. Tanya M.B. and William S.L. ((2008AP3065, 2008AP3066, and 2008AP3067; 2009AP136, 2009AP137, and 2009AP138)

Among the cases not accepted were:

Yates v. Holt-Smith (2008AP17) Justices Ziegler and Gableman dissent.
State v. Busk (2008AP825-CR) Chief Justice Abrahamson and Justice Prosser dissent.
Her v. Scolman (2008AP979) Chief Justice Abrahamson and Justice Bradley dissent.
State v. Bridges (2008AP1207-CR) Chief Justice Abrahamson dissents.
State v. Ridener (2008AP1640-CR) Chief Justice Abrahamson and Justice Prosser dissent.
State v. Wisth (2008AP1748-CR) Justice Prosser dissents.
State v. Mercer (2008AP1763-CR) Chief Justice Abrahamson concurs.
Bucyrus Int. v. Price Erecting (2008AP2088) Justices Bradley and Prosser dissent.
State v. Jensen (2009AP898-CR) Chief Justice Abrahamson and Justice Roggensack dissent.
Automax v. Trunnel (2009AP223) Justice Roggensack dissents.
Brown v. Department of Corrections (2009AP1598-OA) Chief Justice Abrahamson dissents.

Supreme Court pending cases September 23, 2009

The Wisconsin Supreme Court posted an updated Table of Pending Cases [html | pdf] that "Added recently accepted cases".

State v. McGuire (2007AP2711) review of the Court of Appeals decision granted on the issues:

Whether the statute of limitations tolling provision of Wis. Stat. §939.74 (1) (1966 – 69) for any time when the defendant “was not publicly a resident within the state,” as applied to this case, violated either the defendant’s right to equal protection and due process or the privileges and immunity clauses of the United States Constitution.

Whether a 36-year delay in filing criminal charges violates a defendant’s right to due process in relation to the statute of limitations.

Whether reversal in the interests of justice under Wis. Stat. §751.06 due to the delay in filing charges is an appropriate remedy.

Admanco, Inc. v. 700 Stanton Drive, LLC (2007AP2791) review of the Court of Appeals decision, 2009 WI App 57, granted on the issues:

Is a beneficiary of a letter of credit from a bank which holds a general business security agreement on all of the debtor’s property a “secured creditor” as that term is defined under Wis. Stat. §128.25 (1) and therefore outside the purview of Wis. Stat. ch. 128?

Is there a violation of the “independence principle” of Wis. Stat. §405.103 and common law governing letters of credit in allowing an action against the beneficiary of a letter of credit arising out of the issuer’s enforcement of its security interest against the debtor’s estate?

State v. Pinkard (2008AP1204-CR) review of the Court of Appeals decision, granted on the issue:

Whether a warrantless search of a defendant’s residence falls within the “community caretaker” exception (discussed in State v. Kramer, 2009 WI 14, 315 Wis.2d 414, 759 N.W.2d 598) to the guarantees against unreasonable search and seizure found in the Fourth and Fourteenth Amendments to the U.S. Constitution and Article I Section 11 of the Wisconsin Constitution.

Sands v. Menard, Inc. (2008AP1703) review of the Court of Appeals decision, 2009 WI App 70, granted on the issue:

Must an employer/client’s right to choose its general counsel yield to an arbitration award for reinstatement when neither the employer/client nor its former employee/general counsel had requested that remedy and when the attorney-client relationship is irretrievably broken?

Sheboygan County DH & HS v. Tanya M. B. (2008AP3065, 2008AP3066, and 2008AP3067) and Sheboygan County DH & HS v. William L. (2009AP136, 2009AP137, and 2009AP138) review of the Court of Appeals decision, granted on the issues:

Whether Wis. Stat. §48.355 requires the trial court to order the DH &HS to provide specific services in a CHIPS (Children In Protective Services) dispositional order aside from the Department’s inherent duty to supervise the case, such that failure to do so render the order void.

Whether the parents waived their right to challenge the form and validity of the CHIPS order by submitting to the court’s jurisdiction for four years.

Insurance rates

Now, Wisconsin legislators think insurance companies should issue auto policies at a loss, just because they think its unfair that some people have to pay higher premiums than others.

Decision in 'Office of Lawyer Regulation v. DeMaio' 2009 WI 95

Wisconsin Supreme Court decision today in this case (2008AP1119-D). While retained to represent the client on debt relief matters, the attorney failed to notify the client of a refund received of funds tendered to a bankruptcy trustee, failed to ascertain the status of a foreclosure sheriff's sale of the client's home, and failed to obtain a written waiver of a conflict of interest after expressing interest in purchasing the client's home. The court issued the referee's recommended public reprimand. Opinion Per Curiam.

See 2009-2010 Term of the Wisconsin Supreme Court