On appeal, week of April 26, 2010

Opinions issued this week by the Wisconsin Supreme Court and Wisconsin Court of Appeals


Wisconsin Supreme Court Oral Argument Schedule for April 2010 (updated March 1, 2010)


Wisconsin Supreme Court Pending Cases (updated April 27, 2010) added:

Foley-Ciccantelli v. Bishop's Grove Condominium Association, Inc. (2009AP688) review on the issue:

Can a circuit court disqualify retained counsel-of-record in a civil suit, thereby denying the client the right to representation by chosen counsel and restricting the attorney’s right to practice law in a civil action, where the attorney previously represented a nonparty witness for the opposing side?

Synopsis at Supreme Court accepts one new case


Wisconsin Supreme Court Pending Rules Petitions (updated March 25, 2010)


Wisconsin Court of Appeals Oral Argument Schedule (updated April 26, 2010)

The Constitution is like a beautiful hardwood floor

But since the demise of Lochner, it has been covered up with hideous linoleum.

John C. CalhEUn?

The Economist on the European Union's version of the concurrent majority

It has long been accepted in the EU that, where a country has a “vital national interest” at stake—as Britain clearly has in financial services—it is unwise and perhaps even wrong to outvote it by a qualified majority.

State Bar Board of Governors Agenda for May 5, 2010

Agenda for May 5, 2010, Monona Terrace, Madison

‘The “Devastating” Decision’: An Exchange

Floyd Abrams responds to Ronald Dworkin on 'Citizens United v. Federal Election Commission',

One would hardly suspect from Dworkin’s accusations that President Harry S. Truman had vetoed the very section of the Taft-Hartley law in 1947 that first banned corporate and union independent expenditures during election campaigns on the ground that the bill posed a “dangerous intrusion on free speech.”

with a reply by Mr. Dworkin,

the Taft-Hartley Act’s prohibitions were global—President Harry Truman, in his veto message, said that the act “might even prevent the League of Women Voters—which is incorporated—from using its funds to inform its members about the record of a political candidate.” The McCain-Feingold Act that the five conservatives declared unconstitutional banned only electioneering on television and only for sixty days before an election.

The New York Review of Books, April 29, 2010

Richard Epstein writes for Forbes

When the Law is an Ass

Richard E. Morgan reviews 'Life Without Lawyers: Liberating Americans from Too Much Law', by Philip K. Howard, in the Claremont Review of Books.

Mr. Howard was the featured speaker the the Milwaukee Chapter April 15, 2009 event.

State Bar celebrates the end of a victorious 2009-10 legislative session

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

Supreme Court arguments April 28, 2010

9:45 a.m. State v. Allen (2007AP795) review of the Court of Appeals decision on the issues:

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

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

Synopsis at Supreme Court accepts three new cases

Supreme Court Rules Hearings April 27, 2010

2:00 p.m. Public Hearing In the matter of the amendment of Supreme Court Rule 40.08 relating to adverse determination of a bar applicant's character and fitness (08-11) Amended Petition
See earlier posts


2:00 p.m. Public Hearing In the matter of amendment of Wis. Stat. s. 904.085(4)(e) relating to communications in mediation as evidence (09-12) Petition and Supporting Memo

Decision in 'Office of Lawyer Regulation v. Katerinos' 2010 WI 28

Wisconsin Supreme Court decision April 20, 2010 in this case (2008AP001637-D) imposing a public reprimand. Opinion Per Curiam. See 2009-2010 Term of the Wisconsin Supreme Court.

Why the Bill Was Passed

Chapter XV of Part One of Political Reform in Wisconsin (1910) by Emanuel L. Philipp (see Introduction and Contents)

The action of the state senate, while it received the support of the entire stalwart membership of that body, was not in accord with the judgment or wishes of the more conservative members. There was a disposition on the part of several senators, of whom Senator Whitehead was the most positive and uncompromising in his opinion, to defeat the measure, and they had the votes to do it if that plan had been decided upon. But other counsel prevailed.

Earth Day is Lenin's Birthday

So not a coincidence.

Forgotten Constitutional Founders

Gerald J. Russello, at The University Bookman, reviews 'An Incautious Man: The Life of Gouverneur Morris', by Melanie Miller,

he was so well-regarded that he was appointed to the committee responsible for drafting the actual language of the Constitution, which is largely credited to him. Unlike Martin, who opposed the Federalists tooth and nail, Morris was a Federalist but, as Miller describes, this was to seal his fate. After the election of 1800, the Federalists were voted out and eventually disappeared as a political force. Morris was seen as too aligned with them...

and 'Forgotten Founder, Drunken Prophet: The Life of Luther Martin', by Bill Kauffman.

Martin’s argument was with those who wished to scrap the Articles of Confederation in favor of a document that minimized local rights and threatened individual liberties. In the end he walked out of the Convention because of his concern for the states and individual liberties.

Meeting of the Wisconsin Judicial Council March 19, 2010

Minutes approved at the April 16, 2010 meeting.

Next meeting is scheduled for May 21, 2010.

Reading Up on the Right

Review essay by Steven F. Hayward in the Claremont Review of Books, Winter 2009

one strain of Progressivism—the Herbert Croly variety—was thought to be a synthesis of the Hamilton-Jefferson argument: endorsing Hamiltonian means to Jeffersonian ends.

Even if Croly's prose were clear, the idea would still be muddled. Yet it raises one of the central questions in any attempt to define conservatism: is conservatism merely a branch of the liberal tradition, or is it a fundamental alternative to liberalism?

UW Law up in U.S. News list

The University of Wisconsin Law School moved up from 35th into a six-way tie for 28th place in this year's U.S. News rankings. (via Proof and Hearsay)

State Court Docket Watch Spring 2010

In an effort to increase dialogue about state court jurisprudence, the Federalist Society presents State Court Docket Watch. This newsletter is one component of the State Courts Project, presenting original research on state court jurisprudence and illustrating new trends and ground-breaking decisions in the state courts. This issue features articles on the state courts of Illinois, California, West Virginia, Montana, Washington, and New York.

On appeal, week of April 19, 2010

Opinions issued this week by the Wisconsin Supreme Court and Wisconsin Court of Appeals


Wisconsin Supreme Court Oral Argument Schedule for April 2010 (updated March 1, 2010)


Wisconsin Supreme Court Pending Cases (updated April 5, 2010)


Wisconsin Supreme Court Pending Rules Petitions (updated March 25, 2010)


Wisconsin Court of Appeals Oral Argument Schedule (updated April 15, 2010)

The Primary Bill in 1903

Chapter XIV of Part One of Political Reform in Wisconsin (1910) by Emanuel L. Philipp (see Introduction and Contents)


When the legislature convened in January, 1903, Gov. La Follette had an overwhelming majority in the assembly, but he had failed to secure a majority of the senate, although he did succeed in electing ten of the eighteen new members of that body, R. Reukema having been chosen by the voters of the Fourteenth district, Milwaukee, to succeed William H. Devos, resigned to accept the post of collector of the port of Milwaukee.¹ 

The lineup, therefore, was conservative republicans 16, conservative democrats 2; La Follette republicans 14, La Follette democrat 1; conservatives 18, La Follette supporters 15.

The State Bar defends the indefensible

Those people genuinely believe that they have a right to use mandatory bar dues for whatever nonsense tickles their fancy.


Update(-trb): Seventh Circuit Court of Appeals hears oral argument in case challenging State Bar’s public image campaign, by Joe Forward, State Bar of Wisconsin

Decision in 'Office of Lawyer Regulation v. Soldon' 2010 WI 27

Wisconsin Supreme Court decision today in this case (2009AP892-D) ordering the stipulated six months suspension. Decision Per Curiam. See 2009-2010 Term of the Wisconsin Supreme Court.

Shoplifting lawyer suspended for six months, by Bruce Vielmetti, Proof and Hearsay

Supreme Court arguments April 16, 2010

9:45 a.m. Estate of Parker v. Beverly Enterprises, Inc. (2008AP2440-LV) review of the Court of Appeals dismissal. Synopis here.


10:45 p.m. Office of Lawyer Regulation v. Torvinen (2009AP2007-D) Synopis here.


1:30 p.m. Wisconsin Judicial Commission v. Gableman (2008AP2458-J) on the Wisconsin Judicial Commission recommendation. Synopis here.

Gableman complaint before Supreme Court, by Jack Zemlicka, Wisconsin Law Journal

Supreme Court justices hear arguments in a case against one of their own, by Patrick Marley, Milwaukee Journal Sentinel

One sentence too many, by Patrick McIlheran, Milwaukee Journal Sentinel

More Developments at the Wisconsin Supreme Court, by Rick Esenberg, Shark and Shepherd

Gableman wants Crooks off of ethics case, by Patrick Marley, Milwaukee Journal Sentinel

Panel recommends dismissal of Gableman ethics complaint, by Dee J. Hall, The Capital Times

Gableman complaint: Sides debate truthfulness of campaign ad, by Jack Zemlicka, Wisconsin Law Journal, September 16, 2009

Panel grills attorneys in Gableman disciplinary case, by Patrick Marley, Milwaukee Journal Sentinel. Posted: September 16, 2009

Gableman ethics case hinges on defining lie, by Patrick Marley, Milwaukee Journal Sentinel

On appeal, week of April 12, 2010

Opinions issued this week by the Wisconsin Supreme Court and Wisconsin Court of Appeals


Wisconsin Supreme Court Oral Argument Schedule for April 2010 (updated March 1, 2010)


Wisconsin Supreme Court Pending Cases (updated April 5, 2010)


Wisconsin Supreme Court Pending Rules Petitions (updated March 25, 2010)


Wisconsin Court of Appeals Oral Argument Schedule (updated April 13, 2010)

Decision in 'Office of Lawyer Regulation v. Goldstein' 2010 WI 26

Wisconsin Supreme Court decision today in this case (2007AP2771-D), on appeal by OLR of the referee's recommended one year suspension, the court orders a two year suspension. Decision Per Curiam. See 2009-2010 Term of the Wisconsin Supreme Court.

Milwaukee lawyer suspended two years, by Bruce Vielmetti, Proof and Hearsay

Supreme Court arguments April 15, 2010

9:45 a.m. Office of Lawyer Regulation v. Lister (2008AP2766-D)


10:45 a.m. Miller v. The Hanover Insurance Co. (2008AP1494) review of the Court of Appeals decision on the issues:

Under Wis. Stat. §801.14(2), when a defendant has not been dismissed as a party to an action, may a plaintiff serve an amended complaint on that defendant directly and not serve that defendant’s attorney of record or even provide him with a copy of the pleading when:

(a) the defendant appeared in the case through its attorney of record;

(b) the defendant timely answered the original complaint through that attorney;

(c) the defendant’s attorney never withdrew from the case;

(d) the defendant’s attorney remained the attorney of record throughout the course of the proceedings; and

(e) the trial court never issued an order allowing the plaintiff to serve the party in person?

Can a default judgment be entered on a defendant’s failure to answer an amended complaint within 45 days of service on the defendant directly when:

(a) the defendant was represented by an attorney in the action;

(b) the amended complaint was never served on the defendant’s attorney or a copy provided to the attorney; and

(c) the defendant answered the amended complaint before it was served on its attorney of record?

Do the totality of the interests of justice factors need to be considered on a Motion for relief under Wis. Stat. §806.07(1)(h)?

Did the court of appeals err when it upheld the trial court’s decision limiting the Millers’ $9,666,314.98 damages award to $2,000,000 recovery based on the allegations of the amended complaint, the insurance policies and the law related to default judgment?

Synopis at Supreme court accepts three new cases.


1:30 p.m. Wisconsin Medical Society v. Morgan (2009AP728) on the Court of Appeals certification of the issues:

Do the plaintiffs have a protectable property interest in the Injured Patients and Families Compensation Fund?

Is a statute that retroactively repudiates a government’s contractual obligation constitutional?

Synopis at Supreme Court accepts one new case.

Supreme Court hears oral argument to decide fate of $200 million transfer from medical malpractice insurance fund, by Joe Forward, State Bar of Wisconsin

Litigators wanted

Practicing law in the therapeutic society is just no fun.

Supreme Court arguments April 13, 2010

9:45 a.m. State v. Dearborn (2007AP1894-CR) review of the Court of Appeals decision, 2008 WI App 131, 758 N.W.2d 463, on the issues:

Was the defendant denied his right to a unanimous jury verdict due to an instruction defining proof of one element as assault or resistance or obstruction of a conservation warden?

Was a search of the defendant’s locked vehicle after he was arrested, handcuffed, and secured in the back of a squad car constitutionally unreasonable?

Synopis at Supreme Court accepts seven new cases.


10:45 a.m. State v. Robinson (2008AP266-CR) review of the Court of Appeals decision, 2009 WI App 97, 770 N.W.2d 721, on the issues:

Did the court of appeals’ decision expand Wisconsin’s good faith exception to the exclusionary rule?

Is a commitment order a warrant for the purpose of a lawful arrest?

Is reliance on an anonymous tip sufficient to enter and arrest a subject at the home of a third party?

Synopis at Supreme Court accepts seven new cases.


1:30 p.m. State v. Littlejohn (2007AP900-CR) review of the Court of Appeals decision, 2008 WI App 45, 747 N.W.2d 712, on the issues:

Did the warrantless search of the defendant’s car, after he had parked and locked it and begun walking to his residence and was then arrested, handcuffed, and secured in a police car for the offense of operating with a revoked driver’s license, violate the Fourth Amendment of the United States Constitution?

Did the warrantless search of the defendant’s automobile violate Article I, § 11 of the Wisconsin Constitution?

Synopis at Supreme Court accepts seven new cases.

Gov. La Follette Re-elected

Chapter XIII of Part One of Political Reform in Wisconsin (1910) by Emanuel L. Philipp (see Introduction and Contents)

Gov. La Follette was renominated over the opposition of the Wisconsin Republican league and re-elected in November. While the league did not contest his election as an organization, it was no secret that the members bolted in large numbers. In 1900 his total vote was 264,419, and his net plurality over the democratic candidate, Louis 0. Bomrich, was 103,745. In 1902 his total vote was 193,417--a falling off of 71,002--and his net plurality over David S. Bose, the democratic candidate, was 47,599. But the figures showing the shrinkage of the republican vote do not give a complete understanding of the republican bolt or indicate to what extent the republican party was divided. Thousands of democrats who had been "regular" since W. J. Bryan captured the Chicago convention in 1896 were in full sympathy with Gov. La Follette and his reforms. They voted for him in companies, battalions, and regiments. They were, interchangeably, Bryan democrats or La Follette republicans, whatever the occasion might call for. And their assistance had been industriously solicited.

Stevens Retiring

Kevin Russell reported at SCOTUSblog that "The Supreme Court has announced that Justice Stevens is retiring."

Supreme Court arguments April 12, 2010

9:45 a.m. Saddle Ridge Corp. v. Board of Review for Town of Pacific (2007AP2886) review of the Court of Appeals decision on the issues:

Who is assessable for the fair market value of declared but unbuilt condominium units?

Is the property in condominiums assessable to its beneficial owner, just as all other real property is assessable to its beneficial owner?

Is the condominium developer the beneficial owner of the declared but unbuilt units that will be built on undeveloped land?

Synopis at Supreme court accepts three new cases.

Unbuilt units are common element to each owner: Developer not liable for taxes, by David Ziemer, Wisconsin Law Journal


10:45 a.m. State v. Jones (2008AP2342-CR) review of the Court of Appeals decision on the issues:

Should the defendant receive a new trial because the failure to allow him a new attorney when one was available denied Jones his state and federal constitutional right to counsel of his choice?

Should the defendant receive a new trial because the trial court misused its discretion in denying the defendant a new attorney when he had never requested one before, his request came three months and 21 days prior to the scheduled date for trial, and there was evidence of “good cause” in the difficulties between the defendant and trial counsel that were based in part upon the defendant’s deafness?

Synopis at Supreme Court accepts seven new cases.


1:30 p.m. Metropolitan Associates v. City of Milwaukee (2009AP524) review of the Court of Appeals decision on the issue:

Does the court of appeals holding – that portions of Wis. Stat. §74.37, as amended by 2007 Wisconsin Act 86, do not violate the equal protection clause – conflict with this court’s decision in Nankin v. Village of Shorewood, 2001 WI 92, 245 Wis. 2d 86, 630 N.W.2d 141?

Synopis at Supreme court accepts three new cases.

Convention May 6th spotlight

Our State Bar's 2010 convention will include this discussion on Politicization of Judicial Election Campaigns: Whose Party is it Anyway? presented by its Professionalism Committee, Senior Lawyers Division and the Appellate Practice Section on Thursday, May 6, 2010 from 1:00 p.m. to 2:00 p.m.. On the panel:

Moderator: Prof. Janine P. Geske, Marquette University Law School, Milwaukee
Justice Sandra Day O’Connor, U.S. Supreme Court, Washington, D.C.
Chief Justice Shirley S. Abrahamson, Wisconsin Supreme Court, Madison
Atty. John W. Daniels, Jr., Quarles & Brady LLP, Milwaukee
Mr. Bill Kraus, Madison
Mr. Michael McCabe, Wisconsin Democracy Campaign, Madison

Chief Justice Abrahamson was the featured speaker at our chapter's May 7, 1998 event.

Crack and powder cocaine

When any knucklehead can convert powder cocaine to crack at the point of consumption, what's the justification for draconian ratios based on the drug's form at the time of sale?

None.

But that's no excuse for the ACLU to lie about the issue.

Search and Seizure motions

Back in the day, a boilerplate motion drawn in crayon sufficed to get an evidentiary hearing on a motion alleging that a search, stop, or arrest was unlawful. Apparently, that's no longer the case in every county.

De Novo March 2010

Latest issue of our State Bar's Appellate Practice Section's quarterly newsletter

Engage Volume 11, Issue 1, March 2010

The latest issue of Engage, journal of the Federalist Society's practice groups, is now online.

On appeal, week of April 5, 2010

Opinions issued this week by the Wisconsin Supreme Court and Wisconsin Court of Appeals


Wisconsin Supreme Court Oral Argument Schedule for April 2010 (updated March 1, 2010)


Wisconsin Supreme Court Pending Cases (updated April 5, 2010)


Wisconsin Supreme Court Pending Rules Petitions (updated March 25, 2010)


Wisconsin Court of Appeals Oral Argument Schedule (updated April 6, 2010)

The Campaign That Followed

Chapter XII of Part One of Political Reform in Wisconsin (1910) by Emanuel L. Philipp (see Introduction and Contents)


The campaign conducted by both factions during the fifteen months following the publication of the league statement was a lively one, but it is not one that can be pointed to with pride even by those who triumphed at the polls. Whatever experience the members of the league had gained in past campaigns was used for the purpose of perfecting a statewide organization. The term "perfecting" is employed in this instance from force of habit, but the literal definition of the word does not accurately describe the organization of the Wisconsin republican league. Still, it would have served the purpose had there not been another political organization in existence that year. Gov. La Follette had "perfected" his political machine and he gave a new meaning, a new interpretation to the word in Wisconsin. The league had members in every county; Gov. La Follette had workers in every voting precinct. The league started out to make a poll of the state; Gov. La Follette already had a most complete poll and mailing list when he was inaugurated and he had improved it from month to month. The league succeeded in securing a reasonably complete poll of eleven counties and a partial list of voters in about half of the remaining counties; Gov. La Follette not only had his list of republican voters in every precinct of the state, but he also had in his possession the names of thousands of Bryan democrats who were classed by him under the heading "fair minded," and regularly supplied with literature.

Decision in 'Racine County v. Oracular Milwaukee, Inc' 2010 WI 25

The Wisconsin Supreme Court yesterday issued its decision in this case (2007AP2861) affirming the Court of Appeals, 2009 WI App 58, 317 Wis. 2d 790, 767 N.W.2d 280. See Argument.

Opinion by Justice Ziegler.

¶29 In this case, in order to survive summary judgment, Racine County was not required to name an expert witness. As a preliminary point, Racine County alleged breach of contract, not negligence. There is no allegation that Oracular's performance failed to meet the standards of the computer consulting industry——whatever those may or may not be. Accordingly, the issue is not whether Racine County is required to present expert testimony in order to demonstrate that Oracular's performance fell below the industry standard of care.[footnote omitted] Instead, the issue is whether in order to survive summary judgment, Racine County was required to name an expert witness when the complaint alleged that Oracular breached the parties' Agreement.
...
¶31 ... If September 7, 2004, was intended as the project deadline, ... the fact-finder is capable of determining for itself whether the project was indeed completed by that time. Similarly, the fact-finder can evaluate whether the deadline was repeatedly modified and repeatedly missed, as Racine County intends to argue. The question of whether the software installation project was completed by a specified date is distinct from the complexity of the work that goes into the installation——complexity that Racine County concedes. The former is not so "unusually complex or esoteric," ... as to require the assistance of expert testimony. ... [citations omitted]
¶32 Racine County also intends to produce evidence that Oracular breached the Agreement by failing to provide competent training. As shown in the affidavits, several Racine County employees will testify that one of Oracular's training consultants was herself unfamiliar with the software and that Oracular's project manager admitted that the project was staffed for failure. Based upon that evidence, the fact-finder is capable of drawing upon common knowledge and ordinary experience to determine whether Oracular provided competent training. [citation ommited]

See 2009-2010 Term of the Wisconsin Supreme Court.


Average jurors can decide issue: Experts not needed in computer dispute, by David Ziemer, Wisconsin Law Journal


Supreme court holds expert testimony not required for summary judgment, by Deborah G. Spanic, State Bar of Wisconsin


Wisconsin Supreme Court backs county in IT dispute, LaCrosse Tribune (via WisPolitics)

Order on record retention 2010 WI 24

Wisconsin Supreme Court order [html | pdf] today effective July 1, 2010. See prior posts on record retention. In the matter of amendment of Supreme Court Rule 72.01 regarding record retention (09-02)

See 2009-2010 Term of the Wisconsin Supreme Court.