The New Class, Palin and Obama

Kenneth Anderson at Law of War and Just War Theory

That a society, governed by representative democracy, needs elites is beyond issue. The question is, what kind, and what should their relationship be to those whom they govern?

Palin [Gov. Sarah Palin (R-AK)] and Obama [Sen. Barack Obama (D-IL)] cast that issue pretty squarely on the table, and they put it on the table for the next generation in American politics, once the Bidens and McCains have passed from the historical stage.

Definition of terms

The United States Supreme Court term begins each October and is called the October term. For example, here are its opinions from the October Term 2007 (October 1, 2007, through September 30, 2008).

In the Wisconsin Supreme Court, justices full terms begin on August 1st. For example, Justice Gableman joined the court August 1, 2008. The court schedules arguments September to June. Before Justice Gableman joined the court, it had in July set specific cases for September, October, and November, but it did not set its calendar for the full year (September 2008 through August 2009) until August. Decisions from a term continue to be issued through August. Justice Gableman did not participate in Office of Lawyer Regulation v. Scanlan, 2008 WI 116, issued August 19th. He presumably did participate in the August decisions on certifications and petitions for review, see Aug 22, 2008 SC Table of Pending Cases [html | pdf].

So is the Wisconsin Supreme Court term called an August term or a September term? Apparently not.


Update: At the Marquette University Law School Faculty Blog, Andrew Hitt posts that "the term officially ends at the end of June."

2008 Democratic Vice Presidential Nominee Senator Joe Biden Speaks at the 2005 ACS National Convention

44:52

(via ACSblog)

Also at ACS, "Momentum for change", its 2007 Annual Report.

Analysis: 'Stuart v. Weisflog's Showroom Gallery, Inc.'

[Terry J. Booth on Stuart v. Weisflog's Showroom Gallery, Inc., 2008 WI 86 (2005AP1287)]

Weisflog’s Showroom Gallery, Inc., (Weisflog) contracted with the Stuarts (Stuart) to design and build an addition to their home. Several years after the construction was completed, defects in the design and construction of the home were discovered. Those defects had led to damages to the addition. Stuart sued Weisflog for the costs to repair those damages.

Stuart alleged that their damages were caused by Weisflog’s negligence. They also claimed that their damages were caused by misrepresentations under the Home Improvement Trade Practices Act, codified as Wis. Admin. Code Ch. ATCP 110.

American Family Mutual Insurance Company (American Family) had issued a liability insurance policy to Weisflog. American Family provided a defense for Weisflog under a reservation of rights. American Family then moved for summary judgment dismissal from any duty to indemnify or defend Weisflog. Among other grounds, American Family argued that the ATCP 110 claim was not an occurrence under the policy. The trial court denied American Family’s motion.

The denial of American Family’s summary judgment motion was affirmed by the court of appeals. In doing so, the court of appeals declared that statutory misrepresentation claims under ATCP 110 are not misrepresentations which are subject to Everson v. Lorenz, 2005 WI 51, 280 Wis. 2d 1, 695 N.W.2d 298. In arriving at that conclusion, the court suggested that statutory misrepresentation claims under Wis. Stat. §100.18, were also not subject to Everson. The court stated that statutory misrepresentation claims under ATCP 110 and Wis. Stat. §100.18 were intent neutral, unlike the common law misrepresentation claims that were addressed in Everson.

The supreme court reversed the decisions of the trial court and court of appeals. The court found that ATCP 110 claims described volitional conduct which was subject to Everson and which did not constitute an “occurrence” as that term is typically defined in commercial liability insurance policies. In doing so, it also suggested that Wis. Stat. §100.18 misrepresentation claims also describe volitional conduct which is subject to Everson, and which is not an “occurrence” under typical commercial liability insurance policies.

PRINCIPLES ESTABLISHED AND FUTURE CONSIDERATIONS

1. The continued vitality of Everson was affirmed.

2. Everson is applicable to ATCP 110 claims.

3. Everson is probably applicable to Wis. Stat. §100.18 claims.

4. The scope of what constitutes a volitional act for the purpose of applying Everson remains unsettled. Possibilities include the following:

A. An act is volitional if the intended harm is accomplished.

B. An act is volitional if the intended act is accomplished.

C. An act is volitional if the wrongfulness of the act is known.

D. The act is volitional if the conduct intended is accomplished and the conduct is, knowingly or unknowingly wrongful.

E. The act is volitional if the conduct intended is accomplished, and the result of the act is known to be wrongful.

[The preceding is from Mr. Booth's August 14, 2008 presentation at the Civil Trial of Wisconsin Summer Conference, Wisconsin Dells, and is used with his permission.]

Elections watchdog wants to regulate political Supreme Court ads

Patrick Marley reports in the Milwaukee Journal Sentinel on possible new regulations from the Government Accountability Board.

Those “issue ads” have been running for years against candidates for governor, attorney general and the Legislature, but they didn’t start in earnest in Supreme Court races until last year.

Any new regulations the board imposes would likely apply to candidates for any state office, but the board members — all six of whom are former judges — expressed the deepest concerns over the ads in court races.

See Wisconsin Government Accountability Board urged to regulate issue ads

Hearing set on trust accounts and fiduciary accounts

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

IT IS ORDERED that a public hearing on the amended petition shall be held in the Supreme Court Room in the State Capitol, Madison, Wisconsin, on Tuesday, November 18, 2008, at 9:30 a.m.

IT IS FURTHER ORDERED that the court's conference in the matter shall be held promptly following the public hearing.

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

Amended Petition filed August 22, 2008, by the WisTAF Board of Directors

(See Petition filed to amend SCR 20:1.15 on trust accounts)

Hearing set on admitting lawyers upon proof of practice elsewhere

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

On April 1, 2008, the Board of Bar Examiners, by its director, John E. Kosobucki, petitioned this court to amend Supreme Court Rule 40.05, relating to admitting lawyers upon proof of practice elsewhere. On July 24, 2008, an amended petition was filed in this matter to show a marked version of the proposed amendments to SCR 40.05.

IT IS ORDERED that a public hearing on the amended petition shall be held in the Supreme Court Room in the State Capitol, Madison, Wisconsin, on Tuesday, November 18, 2008, at 9:30 a.m.

IT IS FURTHER ORDERED that the court's conference in the matter shall be held promptly following the public hearing.

In the matter of amendment to Supreme Court Rule SCR 40.05 relating to admitting lawyers upon proof of practice elsewhere (08-07)

(See Rules Petitions filed April 1, 2008)

Titleholder is not "owner"

A woman who titled her boyfriend's motorcycle in her name to keep it out of her boyfriend and his wife's marital property estate can recover under her car's UIM coverage, even though the auto policy excludes coverage for injuries sustained during operation of another vehicle she "owns."

So, because she engaged in fraud upon both the divorce court and her boyfriend's wife, therefore, her insurer should be compelled to pay for a risk they did not agree to insure.

Asking the question

Jack Zemlicka reports in the Wisconsin Law Journal, August 27, 2008, on Tuesday's inaugural meeting of our State Bar's Mandatory Bar Committee.

Should the State Bar of Wisconsin be a voluntary or mandatory organization?

...

most [committee members] recommended that the longstanding debate on the issue could not be solved by simply asking members whether they favored one over the other.

With the committee's deciding this is not a simple matter,

[State Bar President Diane S.] Diel said that she will be working with the State Bar executive director and staff to contact a professional group to craft the questions and administer the survey.

(See Mandatory membership debate heats up prior to committee meeting)

Court of Appeals opinions week of August 25, 2008

(linked from post title)


Court orders new suppression hearing: Previous holding on same issue does not control, by David Ziemer, Wisconsin Law Journal, September 2, 2008, on State v. Wasserman (August 26, 2008 2007AP1441-CR)


Wisconsin Law Journal current case digests

Analysis: 'Stone v. Acuity'

[Terry J. Booth on Stone v. Acuity, 2008 WI 30 (2005AP1629)]

Stone was injured when hit by a van. Stone had automobile liability insurance with Acuity which included UIM coverage in the amount of $300,000.00. Acuity also provided Stone with “Personal Umbrella Liability Insurance,” with limits of 1 Million dollars. That insurance was listed in the automobile liability insurance policy declarations under a heading entitled “Forms.” The umbrella did not include UIM coverage.

Acuity originally issued the Stone auto policy and umbrella endorsement in 1993. In 1996, Acuity sent notices of availability of UIM coverage with its auto insurance renewals, in order to comply with Wis. Stat. §632.32(4m). In 1996, Acuity did not offer UIM coverage with its umbrella insurance. When it began offering such coverage in 1999, it did not give Stone notice of the availability of such UIM coverage.

Stone sought UIM coverage under the umbrella policy. He claimed that he was entitled to such coverage because he had not been given notice of the availability of the umbrella UIM coverage. The court held that he was entitled to such coverage because of the lack of notice. It also held that he was entitled to only the minimum level of UIM coverage required by Wis. Stat. §632.32(4m)(d), $50,000.00 per person and $100,000.00 per occurrence.

PRINCIPLES ESTABLISHED AND FUTURE CONSIDERATIONS

1. The court found the umbrella coverage to be a separate policy, requiring separate notice under Wis. Stat. §632.32(4m), even though Stone purchased the underlying auto and umbrella coverages at the same time and as a single unit.

2. According to the court, documents referred to as either a “form” or an “endorsement” can be construed to be a separate insurance policy.

3. Acuity’s argument that the 1996 notice was sufficient notice for both the underlying auto and the umbrella coverages was rejected by the court. The court reasoned that since Acuity didn’t begin offering UIM coverage in its umbrella endorsements until 1999, “[i]t would be meaningless to provide notice of the availability of UIM coverage when that type of coverage was in fact not available.” The court’s rationale suggests that while notice of the availability of UIM coverage in an excess policy is required if such coverage is offered by the insurer, it is not required if the insurer does not offer the coverage. The necessary underlying premise of that reasoning is that UIM coverage is not required to be offered in umbrella policies. That premise is contrary to the holding in the subsequent court of appeals case of Nault v. West Bend Mutual Insurance Company, 2008 WI App 91 (2007AP1670). Future consideration of the holding in Nault is, therefore, likely.

4. The court found Wis. Stat. §631.15(3m) to control the measure of relief available for a failure to provide the Wis. Stat. §632.32(4m) notice. That section provides that a “policy that violates a statute or rule is enforceable against the insurer as if it conformed to the statute or rule.” The court construed that section to require that the minimum limits required by statute, $50,000.00 per person and $100,000.00 per occurrence, be read into the policy. If that remedy is, in fact, a fixed universal remedy, it has several consequences:

A. A fixed remedy avoids the need to litigate the question of what the insured would have done if he or she had been given notice of the availability of the UIM coverage.

B. A fixed remedy prevents an insured from obtaining excess UIM coverage in an amount between the statutory minimum of $50,000.00 and the liability limit of the excess policy.

C. A fixed remedy prevents the insurer from proving that the insured would not have purchased excess UIM coverage even if the insured had been notified of the availability of such coverage. That circumstance ensures that an insured with an umbrella will always have twice the UIM coverage required by statute, $50,000.00 under the underlying auto coverage, and $50,000.00 under the umbrella coverage.

5. Wis. Admin. Code §Ins 6.77(4)(a) exempts umbrella liability and excess liability insurance policies from the requirements of Wis. Stat. §632.32(4). Wis. Admin. Code §Ins 6.77(4)(c) exempts umbrella liability and excess liability insurance policies issued or renewed on or after July 1, 2007, from the requirements of Wis. Stat. §632.32(4m). Wis. Admin. Code §Ins 6.77(6)(a) specifies disclosure requirements for umbrella liability and excess liability insurance policies. Wis. Admin. Code §Ins 6.77(6)(c) states: “Nothing in this subsection shall be interpreted to require insurers to provide underinsured motorist coverage in policies.” In Stone, the court questioned, but did not rule upon, the enforceability of such regulations.

[The preceding is from Mr. Booth's August 14, 2008 presentation at the Civil Trial of Wisconsin Summer Conference, Wisconsin Dells, and is used with his permission.]

Wisconsin Government Accountability Board urged to regulate issue ads

Mark Pitsch reports in the Wisconsin State Journal

The proposal to be considered by the board Thursday would regulate ads that discuss:

• The qualities, character or fitness of a candidate.

• A candidate's stand on an issue.

• A candidate's record.

• A candidate's supporters or opponents.

• Campaign ads run by or on behalf of a candidate or a candidate's opponents.

The proposal would have to be approved by the Legislature.

(via WisPolitics)

Board awaits member response to election survey

Jack Zemlicka reported in the Wisconsin Law Journal, August 22, 2008, on our State Bar's request for member opinion on the Attorney General's request it join him in opposing Milwaukee County Circuit Court Judge John Siefert's free speech challenge to some provisions of the Wisconsin Code of Judicial Conduct.

State Bar Public Relations Coordinator Thomas Solberg verified that a survey had been sent out to members and said a “handful” of responses were received by the prescribed July 25 deadline.

If that's literally the case, I can predict 20% of the vote.

The two questions posed were whether the Board of Governors should file an amicus curiae brief in support of the state, and what harm, if any, would be done if the rules prohibiting political affiliation and personal solicitation of campaign donations is found to be unconstitutional?

(see DOJ asks State Bar to get involved in 'Siefert' case and Member input sought in judicial free speech case)

Joe Biden, World Government Guy

Peter Spiro at Opinio Juris "obviously engaging in some cartooning" on Joseph R. Biden Jr. and John B. Ritch III, The War Power at Constitutional Impasse, 77 Geo. L.J. 367, 397-98 (1988).

(via Jonathan Adler at The Volokh Conspiracy)

Who followed Lincoln?

At GarveyBlog,

I once had to follow Jesse Jackson to the microphone to give a speech and I asked myself, I wonder who followed Lincoln at Gettysburg...

Wikipedia provides the answer from the Program,

Dirge, sung by Choir selected for the occasion

Analysis: 'McNeil v. Hansen'

[Aaron R. Berndt on McNeil v. Hansen, 2007 WI 56 (2005AP423)]

The “negligently operating a motor vehicle” exception to the exclusive remedy provision of the Worker’s Compensation Act is inapplicable when an employee starts a vehicle while standing outside of that vehicle, when the act in question was undertaken to service or repair the vehicle and the condition of the vehicle rendered it unable to be driven on a public roadway.

Facts

Two employees of Fast Track Oil Change were performing service on a vehicle. Employee 1, McNeil, asked employee 2, Hansen, to start the vehicle so that a radiator flush could be undertaken. Meanwhile, McNeil stood in front of it to determine whether the hoses being used to flush the radiators were leaking. Hansen started the vehicle but did so while standing outside of it and leaning through an open window to turn the ignition switch. The vehicle had a manual transmission. When Hansen started the vehicle, the vehicle moved forward, striking and injuring McNeil.

The circuit court granted summary judgment to Hansen. The Wisconsin Supreme Court granted the certification request of the Wisconsin Court of Appeals.

Issue

Whether Hansen’s actions in turning the ignition switch on a vehicle that could not be driven on a public roadway is “operation of a motor vehicle” under the exception to the exclusive remedy provision in Section 102.03(2) of the Wisconsin Worker's Compensation Act.

Holding

Hansen’s actions did not constitute "operation of a motor vehicle" under the exception to the exclusive remedy provision in Section 102.03(2).

Analysis

There are three limited exceptions to the exclusive remedy provision of the Wisconsin Worker’s Compensation Act by which an injured employee can sue a co-employee. One of the exceptions is described in Wis. Stat. § 102.03(2) and provides that the Act does not limit the right of an employee to bring an action against any co-employee for negligent operation of a motor vehicle not owned or leased by the employer. Because the Act establishes that it is the exclusive remedy for an injured worker, where the co-employee is held personally responsible for the loss, the injured employee cannot then sue their employer for contribution or indemnification. In construing this language, the Court reviewed legislative history and case law, which indicated that this and the other exceptions were drafted with the intent of limiting co-employee liability to instances where some person or entity other than the co-employee would satisfy any resulting judgment (i.e. a private insurer insuring for negligent operation). The Court also noted that limiting the exception to instances where the co-employee will be covered by other insurance rectifies the concern the legislature had regarding the financial burden that workplace injuries could place on workers due to co-employee liability. However, because vehicle insurance is not required in Wisconsin, there is no guarantee that there will be insurance to cover injuries inflicted by a co-employee.

Holding a co-employee responsible under these circumstances could significantly shift liability costs to co-employees in the vehicle maintenance and repair industry where injuries to workers caused by negligent co-employees while performing maintenance or repairs on a motor vehicle that could not be driven on a public roadway are common occurrences.

The Court strictly construed the exception, noting that the Act was written to limit suits between co-employees for work related injuries and that the purpose of and intent behind the exception was to make co-employee immunity the rule and co-employee liability the exception,

In narrowly construing the exception and ruling that the Hansen’s actions were not “operation of a motor vehicle” for purposes of the exception, the court referenced other statutes for which the term "operation of a motor vehicle" has been narrowly construed to distinguish between the operation of a vehicle and actions associated with the maintenance and repair of a vehicle. This distinction is consistent with the purpose of the Act, as the distinction fosters allocation of the cost of employee injuries to the industry in which they occur and protection of workers from the financial burden of co-employee suits.

[The preceding is from Mr. Berndt's August 14, 2008 presentation at the Civil Trial of Wisconsin Summer Conference, Wisconsin Dells, and is used with his permission.]

State high court to hear John Doe case vs. district attorney

Adam Rodewald in today's Wausau Daily Herald

Ira Robins, an investigative consultant from Wauwatosa, accuses [Taylor County District Attorney Karl] Kelz of false arrest, criminal defamation, extortion and intimidation.

Mr. Robins' appealed after the case was dismissed.

The Wisconsin District 3 Court of Appeals then denied an appeal by Robins in January on the grounds that additional witness testimony would repeat information already presented in the investigation report, according to the court opinion and order.

See Review granted in 'Robins v. Madden'

(via The Wheeler Report)

Justice Crooks: A year without dissent

David Ziemer in the Wisconsin Law Journal on voting records and patterns in the recent term, including

In the 65 cases he participated in that resulted in a full opinion, [Wisconsin Supreme Court Justice N. Patrick] Crooks voted in the majority every time.

Obama's lost law review article

Ben Smith and Jeffrey Ressner at Politico last Friday, on a previously unattributed Note by Senator Barrack Obama (D-IL) when a member of the Harvard Law Review: Tort Law - Prenatal Injuries - Supreme Court of Illinois Refuses to Recognize Cause of Action Brought by Fetus Against Its Mother of Unintentional Infliction of Prenatal Injuries, 103 Harv. L. Rev. 823

(via Orin Kerr at The Volokh Conspiracy)

This Week in Liberal Judicial Activism: Week of August 25, 2008

Ed Whelan at Bench Memos.

Mr. Whelan was the featured speaker at our chapter's March 8, 2007 luncheon.

Review granted in 'Robins v. Madden'

The Wisconsin Supreme Court on August 15, 2008 granted the petition to review the Court of Appeals decision denying a writ of mandamus in this case (2007AP1526-W). The issues:

Whether the John Doe statute, Wis. Stat. § 968.26, requires the John Doe judge to subpoena every witness that a John Doe petitioner requests or whether the John Doe judge has discretion to decide which subpoenas should be issued.

If a John Doe judge has discretion to decide which of the petitioner’s requested subpoenas should be issued, are there guidelines or factors that the John Doe judge should consider in exercising that discretion?

Is a John Doe judge compelled under Wis. Stat. § 968.26 to examine every witness that the complainant produces or does the judge have discretion to refuse to allow the testimony of some or all of the complainant's witnesses?

Whether the John Doe judge should apply a legal standard of “probable cause” that a crime has been committed or a “reason to believe” standard that a crime has been committed in evaluating the merits of a John Doe petition.

Statements of issues are from the most recent Table of Pending Cases.


State high court to hear John Doe case vs. district attorney, by Adam Rodewald, Wausau Daily Herald, August 26, 2008
(via The Wheeler Report)

Review granted in 'State v. Fernandez'

The Wisconsin Supreme Court on August 18, 2008 granted the petition to review the Court of Appeals decision in this case (2007AP1403-CR). The issue:

Does State v. Loutsch, 2003 WI App 16, 259 Wis.2d 901, 656 N.W.2d 781 (when presented with evidence of a defendant’s ability to pay, the trial court must determine the reasonable amount of restitution the defendant will be able to pay within the term of the sentence) correctly interpret Wis. Stat. § 973.20 with respect to the setting of restitution at sentencing?

Statements of issues are from the most recent Table of Pending Cases.

Certification accepted in 'Harvot v. Solo Cup Company'

The Wisconsin Supreme Court on August 15, 2008 accepted the Court of Appeals certification in this case (2007AP1396). The issues:

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?

Statements of issues are from the most recent Table of Pending Cases.

Review granted in 'Luckett v. Bodner'

The Wisconsin Supreme Court on August 18, 2008 granted the petition to review the Court of Appeals decision in this case (2007AP308). The issue:

Whether granting the motion to withdraw an admission reflects a proper interpretation of the standards to determine prejudice under Wis. Stat. § 804.11(2) and Mucek v. Nationwide Communications, Inc., 2002 WI App 60, 252 Wis. 2d 426, 643 N.W.2d 98.

Statements of issues are from the most recent Table of Pending Cases.

Certification accepted in 'Polsky v. Virnich'

The Wisconsin Supreme Court on August 18, 2008 accepted the Court of Appeals certification in this case (2007AP203). The issues:

Under Beloit Liquidating Trust v. Grade, 2004 WI 39, 270 Wis. 2d 356, 677 N.W.2d 298 (in order for officers and directors to have a fiduciary duty to creditors, a corporation must be both insolvent and no longer a going concern) do directors and officers who own a corporation have any fiduciary duty to creditors or the corporation when the corporation is insolvent but still a going concern?

Statements of issues are from the most recent Table of Pending Cases.

Review granted in 'Notz v. Everett Smith Group, Ltd.'

The Wisconsin Supreme Court on August 18, 2008 granted the petition to review the Court of Appeals decision, 2008 WI APP 84, in this case (2006AP3156). The issues:

Can a minority shareholder pursue a direct action against a majority shareholder for alleged harmful conduct having a disparate impact on minority shareholders?

Can a majority shareholder cause the dismissal of a claim of shareholder oppression under Wis. Stat. § 180.1430 (2) (b) by initiating a cash-out merger while the claim is pending?

Does a shareholder retain standing to pursue a claim for dissolution of a corporation after ceasing to hold shares of the corporation?

Statements of issues are from the most recent Table of Pending Cases.

For a stronger democracy: Disclosure needed, says speaker

Frank Zufall reported in the Spooner Advocate on an August 9th meeting in Shell Lake of the Washburn County Democratic Party. Mike McCabe, executive director of Wisconsin Democracy Campaign was invited to speak on “Wisconsin democracy, campaigns past and current efforts.”

"McCabe alleged WMC [Wisconsin Manufacturers and Commerce] said it was against 'activist judges' but the irony was the Supreme Court in 1886, in its Santa Clara County versus Southern Pacific Railroad [118 U.S. 394 (1886)] ruling, gave corporations the same rights as individuals, a status the founders of the nation did not intend because they mistrusted the economic clout corporations could bring to politics."

Also addressing the meeting was state Senator Robert Jauch (D-Chippewa Falls).

"He did direct some angry comments at WMC, which has placed issue ads against Jauch. He said the WMC acted like the Ku Klux Klan in bullying candidates.

"'Take the hoods off,' Jauch said of the WMC."

Court of Appeals opinions week of August 18, 2008

(linked from post title)


Drunken driver not liable for punitive damages, by David Ziemer, Wisconsin Law Journal, August 29, 2008, on Henrikson v. Strapon (2007AP2621 August 21, 2008)


Titleholder is not vehicle “owner”: “Drive other car” exclusion does not apply, by David Ziemer, Wisconsin Law Journal, August 28, 2008, on Young v. West Bend Mutual Ins. Co. (2008AP184 August 21, 2008)


Man convicted of sex abuse to get hearing, by Marie Rohde, Proof and Hearsay, on State v. Garcia (2007AP002631-CR August 21, 2008)


One Of Sheboygan's Judges Gets Spanked, by Jeff Wagner, August 21, 2008, on State v. Applewhite (2007AP1734-CR August 20, 2008)


Animosity between attorneys not basis for removal, by David Ziemer, Wisconsin Law Journal, August 21, 2008, on State v. Peterson (2007AP1867-CR August 20, 2008)


Burnett County must pay store owner $200,000, by Marie Rohde, Proof and Hearsay, on Yourchuck Video, Inc. v. Burnett County (2007AP2093 August 19, 2008)


Wisconsin Law Journal current case digests

What’s the Matter With Washington?

Michael Lind, in last Sunday's New York Times, reviews The Wrecking Crew: How Conservatives Rule, by Wall Street Journal columnist Thomas Frank.

Missing from The Wrecking Crew is any acknowledgment of what, from a left perspective, should be considered good news: the defeat of the antigovernment right in most major policy battles, from Social Security privatization to private school vouchers.

A court contest contrast in Assembly race

John Nichols in The Capital Times on a debate between Democratic Party candidates in the 81st District.

[Assistant District Attorney Tom] Kiefer supports so-called "merit selection" of judges -- a system that would have an elite panel appointed by the governor select "a list of candidates" from which the governor would then name justices.

Contrasted with,

...Justin Sargent, who highlighted his support for the proposed Impartial Justice Act. That plan would clean up court contests by establishing a system of full public financing of state Supreme Court elections.

Former Supreme Court justice to head liquor panel

The Associated Press reported yesterday that Milwaukee Alderman Willie Hines, President of the Common Council, will appoint former Wisconsin Supreme Court Justice Louis Butler to chair a task force on reform of the city's liquor licensing.

The move follows former Alderman Michael McGee's conviction for shaking down business owners in his district and threatening them with the loss of their liquor licenses.

(via WisPolitics)

Mandatory membership debate heats up prior to committee meeting

Jack Zemlicka reports in the Wisconsin Law Journal, August 19, 2008

[State Bar President Diane] Diel recently appointed a 12-person Bar Membership Committee, which will meet on Aug. 26, to study the issue, solicit feedback from bar members and issue a report to the Board of Governors by Jan. 31, 2009.

...

In a draft of the committee’s objectives, Diel targeted the Feb. 27 Board of Governors meeting for action on the issue.

President-elect Douglas Kammer seemed skeptical, perhaps taking the Board of Governors' acronym literally.

“You didn’t tell me you intended to bypass the membership, rehash the issue, and then bury it with action by the BOG [before I assume office] who are, as you know, cheerleaders for the status quo,” stated Kammer in the e-mail.

For some background, here's A History of the Organized Bar in Wisconsin, here's Chapter Fourteen, Integration of the Bar. It covers

from the first mention in 1914 [by Wisconsin Bar Association President Claire Bird] to the court's order on the Kelly Committee report in 1983 [112 Wis. 2d xix].

Implied Warranty of Merchantability

Is privity of contract a prerequisite for an implied warranty claim? A recent federal case says yes, but Wisconsin state case law is full of precedents that simply assume it is not.

'Office of Lawyer Regulation v. Scanlan' 2008 WI 116

The Wisconsin Supreme Court today issued its decision in this disciplinary matter (2004AP1930-D). Reinstatement granted upon conditions.
Justice Gableman did not participate.

Analysis: 'Acuity Mutual Insurance Company v. Olivas'

[William R. Sachse, Jr., on Acuity Mutual Insurance Company v. Olivas, 2007 WI 12 (2005AP685)]

Miguel A. Olivas, a drywall installer, and five other workers he knew obtained work from Steve Tenpas Drywall. Tenpas told Olivas in order for him to obtain work from Tenpas, Olivas had to have worker’s compensation insurance. Olivas purchased a worker’s compensation insurance policy from Acuity. The policy was written with a payroll estimate of $25,000.00, resulting in an initial premium of $3,513.00 for one year of coverage. Olivas did not elect coverage for himself under the policy, pursuant to Wis. Stat. Sec. 102.075(1). Olivas did not list with Acuity’s agent the names or payroll of any of his drywall crew members.

At the end of the policy year, Acuity hired an auditor to review Olivas’ payroll. The auditor located a 1099 tax form showing that Olivas had been paid more than $190,000.00 by Tenpas during the year the insurance policy was in effect. Further investigation indicated that Olivas distributed a large amount of the $190,000.00 to the five drywall crew members. Therefore, Acuity sent Olivas a bill for additional premiums of $32,192.30.

Olivas refused to pay the additional premium, contending he did not employ the other five drywall hangers. Olivas said he did not control the work group. He did not control the hours they worked. He did not hire or fire the workers. Each worker was responsible for his own tools and supplies. According to Olivas, the group of workers would divide whatever money they received from Tenpas based on the work each performed. Olivas dealt with Tenpas only because he was the only one of the workers who spoke English and had appropriate “papers.”

A trial was held in the Circuit Court for Sheboygan County, after which the trial judge determined that Olivas’ crew were independent contractors pursuant to Wis. Stat. Sec. 102.07(8)(b). Therefore, the trial court dismissed Acuity’s complaint, finding that Acuity was not entitled to collect a premium on non-employees. Acuity appealed to the Wisconsin Court of Appeals, which affirmed the trial court’s dismissal, but for a different reason. The appeals court [2006 WI App 45] held that Olivas’ crew members were independent contractors, but instead of applying Wis. Stat. Sec. 102.07(8)(b) to assess that status, the appeals court applied general common law principles.

Acuity again appealed, this time to the Wisconsin Supreme Court. The supreme court affirmed the trial and appellate courts, but again for a different reason. The supreme court, applying Wis. Stat. Sec. 102.07(8)(b), determined that Olivas’ crew were not independent contractors. However, the supreme court refused to find that Olivas’ crew were employees of Olivas, agreeing with Olivas that Acuity did not establish that the crew members were Olivas’ employee under Wis. Stat. Sec. 102.07(4)(a).

The court agreed with Acuity that the only test to determine if a worker is an employee covered under the Worker's Compensation Act or an uncovered independent contractor is Wis. Stat. Sec. 102.07(8)(b). This section creates a nine-part test, all nine of which must be satisfied in order for the person to be an independent contractor. If any of nine parts of the test are not satisfied, then the person is an employee under Wis. Stat. Sec. 102.07(8)(a). Interestingly, the supreme court did not rule out independent contractor status for Olivas’ crew because they lacked federal employer identification numbers or had not filed self-employment income tax returns. This is despite the fact that these two items were clearly missing from the record. The court did not rule out that test, but it did not apply it. Instead, the court applied less concrete tests, finding that Olivas’ crew members were not independent contractors because they did not have offices, had no continuing business liabilities and did not provide tools or materials. Instead, they simply provided their labor.

The court rejected Acuity’s argument that non-independent contractors were automatically employees of Olivas under Wis. Stat. Sec. 102.07(8)(a). This is despite the fact that Olivas, a drywall subcontractor, obtained the work from his general contractor Tenpas, solicited the workers to help him on the project, brought them to the work sites, distributed their pay and trained some new workers. The court held that the policyholder Olivas had not entered into a contract of hire with the workers because he and one of them testified in the trial that no one was the boss, that they collectively agreed on how much each of them would be paid, that they collectively decided on who would do what work, and each brought his own tools to the work sites. The court held that in order to make Olivas the employer, Acuity had to establish that Olivas had entered into a contract of hire with the crew members, as contemplated by Wis. Stat. Sec. 102.07(4)(a). In determining whether there was a contract of hire, the court applied a test established under Kress Packing Co., v. Kottwitz, 61 Wis. 2d 175, 182, 212 N.W.2d 97 (1973). Under the Kress test, the question was whether Olivas had the right to control the details of the work performed by the drywall hangers. The court did not find that Olivas had that control because he did not specify how much drywall to hang, did not establish work hours and did not establish the pay rate. The court accepted Olivas’ contention that the crew collectively decided how many workers to use on a job and how much each of them was to have been paid. It determined Olivas was a “go-between, middle man, or broker” of the labor provided by the other drywall hangers.

The supreme court also rejected Acuity’s argument that Olivas was an “employer” under the Worker's Compensation Act because he purchased a policy of insurance from Acuity. Wis. Stat. Sec. 102.04(1)(e) provides that every person who has elected to become subject to the Act can be an employer. A person elects coverage under the Act by purchasing a policy of insurance. Wis. Stat. Sec. 102.05(2). But the court held that Olivas’ purchase of the policy did not make him an employer because Wis. Stat. Sec. 102.04(1)(e) also requires that the person purchasing the policy have “any person in service under any contract of hire, express or implied, oral or written . . .” The court held that Olivas did not have any people under a contract of hire or service because the other drywall hangers were not his employees. The court did not say whose employees they were, only that they were not Olivas’ employees.

The supreme court’s decision was split, four to three. The three dissenting judges argued that if one of Olivas’ crew members had sustained injury, the Worker’s Compensation Division would clearly have found Olivas to have been the employer and made Acuity pay the compensation claim. The dissent argued that Olivas purchased the worker’s compensation policy specifically to cover the crew members, received his assignments from Tenpas and then instructed the crew where to work, received compensation from Tenpas and distributed it to his crew, and issued 1099 tax forms to each crew member at the end of the year. The dissent reasoned that Olivas had to be responsible for the quality of the work, or Tenpas would have stopped giving it to him. In that Acuity would have been required to pay for injuries to Olivas’ crew, the dissent argued that it should also have collected a premium to account for that risk.

What if Olivas had been injured? He purchased a policy that did not cover him. Would Ten Pas have been liable? Remember, the court specifically rejected Acuity’s argument that by purchasing the policy Olivas was automatically an employer under Wis. Stat. Sec. 102.04(1)(e). It added a requirement that he have employees under his service before he had to pay a premium on their work. Strangely, the court allowed Acuity to collect the minimum premium on a policy the court held covered no one. The majority refused to take the dissent’s bait and discuss insurance coverage in the event of injury and limited its holding to whether Olivas had to pay the extra premium.

[The preceding is from Mr. Sachse's August 15, 2008 presentation at the Civil Trial of Wisconsin Summer Conference, at Wisconsin Dells, and is used with his permission.]

This Week in Liberal Judicial Activism: Week of August 18, 2008

Ed Whelan at Bench Memos.

Mr. Whelan was the featured speaker at our chapter's March 8, 2007 luncheon.

Court of Appeals opinions week of August 11, 2008

(linked from post title)


Fired counsel only recovers value of services, by David Ziemer, Wisconsin Law Journal, August 22, 2008, on Lorge v. Rabl (2007AP2133 August 14, 2008)


Wisconsin Law Journal current case digests

Review: 'Making Your Case' by Antonin Scalia and Bryan A. Garner

Pete Boll reviews Making Your Case: The Art of Persuading Judges, by Antonin Scalia and Bryan A. Garner (2008)

Even those outside the legal profession will find this book useful in understanding effective persuasion.

"This Just In...", WSLL @ Your Service, August 2008

Shedding Light on Recent Developments Affecting LLCs

by Joseph W. Boucher, George R. Kamperschroer and Jennifer L. Knudson, Wisconsin Lawyer, August 2008, including discussion of Gottsacker v. Monnier, 2005 WI 69, 281 Wis. 2d 361, 697 N.W.2d 436, Brew City Redev. Group LLC v. The Ferchill Group, 2006 WI 128, 297 Wis. 2d 606, 724 N.W.2d 879, and Kasten v. Doral Dental USA LLC, 2007 WI 76, 301 Wis. 2d 598, 733 N.W.2d 300

Standing up for public safety in the Wisconsin Supreme Court

Wisconsin Attorney General J. B. Van Hollen in yesterday's Superior Daily Telegram

(via WisOpinion)

State high court rulings affect open government

Christa O. Westerberg in the Your Right To Know column, July 2008, at the Wisconsin Freedom of Information Council

On 'State v. Beaver Dam Area Development Corporation' 2008 WI 90,

Justices noted that the corporation was entirely city-funded, performs a public function (economic development), appears in its presentation to the public to be part of the city, and is subject to a degree of city control, including access to its records.

On 'Sands v. Whitnall School District' 2008 WI 89

The Supreme Court said the information was inappropriately withheld from Sands because the open meetings law’s limited exemptions do not create a “deliberative process” privilege as the school district had contended.

On WIREdata, Inc. v. Village of Sussex' 2008 WI 69

the court clarified that a governmental body cannot pawn off a records request to an independent contractor — in this case, the contractor who developed the database — and thereby avoid liability under the open records law.

On 'Watton v. Hegerty' 2008 WI 74

The court ruled the statements were treatment records that should be kept confidential. To reach this conclusion, it determined that the documents were created by a police officer in the course of providing treatment to individuals with mental illness.

(via WisOpinion)

Wisconsin Legal Update

Bernard T. McCartan, in Wisconsin Civil Trial Journal, Spring 2008

This Week in Liberal Judicial Activism: Week of August 11, 2008

Ed Whelan at Bench Memos.

Mr. Whelan was the featured speaker at our chapter's March 8, 2007 luncheon.

Dilbert on civil litigation

retaining a lawyer

service of process

voir dire

cross-examination

the verdict

Television Commercials

I realize our state bar leaders aren't as bad as the Chinese communists. But even the pettiest of tyrants are still tyrants.

Appellate digests, August 2008

Supreme Court Digest and Court of Appeals Digest by Professor Daniel D. Blinka and Professor Thomas J. Hammer in Wisconsin Lawyer

Court of Appeals opinions week of August 4, 2008

(linked from post title) Among the decisions:


Panama v. Hepp (2008AP000084-W Aug 7, 2008)
Court of Appeals is forum for ineffective claim, by David Ziemer, Wisconsin Law Journal, August 15, 2008


State v. Fox (2007AP685-CR August 7, 2008)
Meth lab evidence admissable, by Marie Rohde, Proof and Hearsay


State v. Ridley (2007AP1730-CR August 6, 2008)
True threats, not hyperbole, by Thomas Foley, Illusory Tenant


Thomas v. Milwaukee City Board of Fire and Police Commissioners (2007AP1771 August 5, 2008)
Cop to get hearing on residency, by Marie Rohde, Proof and Hearsay


Stageberg v. Egan (2007AP2917 August 5, 2008)
Contingency fee award upheld: No conflict from dual representation, by David Ziemer, Wisconsin Law Journal, August 6, 2008


State v. Tostado (2007AP1105-CR August 5, 2008)
Woman must repay stolen money, by Marie Rohde, Proof and Hearsay


Wisconsin Law Journal current case digests

New York Gets Favre, Trades Hillary to GOP

Scott Ott for ScrappleFace

ABA Watch August 2008

Posted yesterday at the national Federalist Society website, it includes

Recommendations on Racial Profiling, International Criminal Court, and Medical Care to be Considered at ABA Annual Meeting

The American Bar Association and Gun Control

Attorneys Fee Negotiations

ABA Reacts to Boumediene Decision

Judicial Nominations

To Cite or Not to Cite:

To Cite or Not to Cite: Should Wisconsin Permit Citing of Unpublished Opinions? by Beth Ermatinger Hanan, Wisconsin Lawyer, August 2008

On Oct. 14, 2008, the Wisconsin Supreme Court will consider a fourth request to permit citation of unpublished Wisconsin appellate opinions as persuasive authority. ...

(see Hearing set on citing unpublished opinions)


In the matter of the Proposed Amendments to Wis. Stat. s. (Rule) 809.23 (08-02)

Butler speech attacks WMC

David Ziemer reported in yesterday's Wisconsin Law Journal on former Justice Louis Butler's address to National Association of Criminal Defense Lawyers annual convention in Milwaukee last Friday.

Butler traced his defeat to three civil cases decided in 2005: the Miller Park case [Wischer v. Mitsubishi Heavy Industries America, Inc., 2005 WI 26], which lowered the threshold for awarding punitive damages (see this earlier post); the Ferdon case [Ferdon v. Wisconsin Patients Compensation Fund, 2005 WI 125], which struck down the cap on medical malpractice damages for pain and suffering (see this earlier post); and Thomas v. Mallett [2005 WI 129], which applied the risk contribution theory of liability to manufacturers of lead paint (see this earlier post).

Exploring Mandatory Membership

Our State Bar's President Diane S. Diel in Wisconsin Lawyer, August 2008

The real underlying question is: What are the reasons to have a bar association at all and how can the bar association best advance those purposes? The State Bar exists because lawyers have a special duty to serve the public and the judiciary, maintain integrity and competence in the law, and assist members of the profession. Traditionally, all professionals care about and seek to serve the public and to maintain the public's trust in the profession. We share those public-spirited goals and ambitions with educators, psychologists, doctors, and many other professionals. As lawyers, we are unique as professionals because we alone are entrusted with serving in the highest positions in an entire branch of government--the judiciary. To understand whether a voluntary or mandatory bar association is the best form for this organization, we must define clearly the organization's objectives.

Back Issues of The Gargoyle, UW Law School Alumni Magazine, Available Online

Bonnie Shucha at WisBlawg announced yesterday that

the entire run of the University of Wisconsin Law School's alumni newsletter, The Gargoyle, has been digitized and is freely available...

Looking way back, Volume 8, Issue 2 (Winter 1976) reported Professor Abrahamson Appointed to Supreme Court.

A "Simple" Probate Should Not Be This Complicated:

A "Simple" Probate Should Not Be This Complicated: Principles and Proposals for Revising Wisconsin's Statutes for Probate Summary Procedures, Comment by Mark T. Johnson, 2008 Wis. L. Rev. 575

Third-Party Beneficiaries:

Third-Party Beneficiaries: Can an Owner in Wisconsin Claim to be a Third-Party Beneficiary of a Contract Between a General Contractor and a Subcontractor? by Ariella Schreiber, Wisconsin Civil Trial Journal, Spring 2008

In Linden v. Cascade Stone Company, Inc. [2005 WI 113], the Wisconsin Supreme Court held that the application of the economic loss doctrine prevents an owner from bringing a claim in tort directly against a subcontractor. In so holding, the court suggested that an owner may still have direct rights against subcontractors because the owner is a third-party beneficiary of the contract between the general contractor and the subcontractor. This is an unresolved issue of law in Wisconsin. [footnotes omitted]

Disposition Table for May & June 2008, 2008 WI 115

Case Dispositions of Petitions to Wisconsin Supreme Court, Decided May 1, 2008 to June 30, 2008 (August 4, 2008) [html | pdf]

This Week in Liberal Judicial Activism: Week of August 4, 2008

Ed Whelan at Bench Memos.

Mr. Whelan was the featured speaker at our chapter's March 8, 2007 luncheon.

Some wisdom from Justice David Prosser

Rick Esenberg at Shark and Shepherd on Donohoo v. Action Wisconsin 2008 WI 110

Justice Prosser takes aim at the pressure currently being brought to bear upon Justices and observes that it presents a danger that they will recuse themselves when they ought not to do so.

He then fires this shot across the bow of those who believe that judicial elections have become overly politicized...

(opinion linked at this earlier post)

Supreme Court rules lawyer must pay fees in defamation case

Marie Rohde in today's Milwaukee Journal Sentinel on Donohoo v. Action Wisconsin 2008 WI 110

Donohoo represented Grant E. Storms, a Louisiana preacher, talk show host and opponent of gay rights, in a defamation suit brought against Action Wisconsin, a gay rights group. A Milwaukee judge dismissed the case and held that Donohoo had to pay the legal fees for Action Wisconsin.

That decision was reversed by the 1st District Court of Appeals, but by a 4-3 vote the high court upheld the decision that Donohoo had to pay Action Wisconsin’s legal fees. Butler was in the majority; if the decision had been a tie vote, the appellate decision would have stood and Donohoo would not have to pay the judgment.

(opinion linked at this earlier post)

Review: 'How Judges Think', and 'Constitutional Conscience'

Paul Horwitz reviews How Judges Think, by Richard Posner, and Constitutional Conscience, by H. Jefferson Powell, in Engage: The Journal of the Federalist Society Practice Groups, June 2008, p. 155

What do we want of our judges? And what can we reasonably expect from them? However much these questions bedevil us, we rarely ask them so directly. The first question has featured prominently in every contested federal judicial nomination and presidential campaign since Robert Bork, but the public and politicians generally neglect the second question. Constitutional theorists often act as if the role and limitations of judges are a mere nuisance; surely, they will suggest sotto voce, the best judge is the one who most closely tracks my own thinking—institutional constraints be damned....

Mr. Horwitz is an Associate Professor of Law at the University of Alabama.

Butler cleared of conflict

Marie Rohde at Proof and Hearsay

Butler [then-Justice Louis B. Butler] had accepted and disclosed a $300 donation from an attorney in the case but the high court found that it would be unduly burdensome to require a judicial candidate to research every possible organization with which contributors may have an affiliation.

Donohoo [James R. Donohoo] also said Butler acted improperly in attending a fund raiser. The court noted that the judicial commission found that judges can announce their views on political and legal issues as long as they are not pledges or promises to vote a certain way.

(opinion linked at this post)

Diel: Action needed on SPD, ADA issues

David Ziemer reported yesterday in the Wisconsin Law Journal on our State Bar's President Diane S. Diel.

Diel recently authored a pair of letters to Doyle asking for state assistance in solving the prosecutor shortage as well as the stagnant level of compensation for private bar attorneys who take assignments from the State Public Defender’s Office (SPD).

See State Bar asks Governor to adequately fund prosecutors and public defenders, press release, July 24, 2008

Review granted in 'State v. Tody'

The Wisconsin Supreme Court on July 28, 2008 granted the petition to review the Court of Appeals decision, 2007 WI App 202, 738 N.W.2d 570, in this case (2007AP400-CR). The issues:

Was the defendant deprived of his right to a fair and impartial jury where the judge denied the defendant’s motion to strike the judge’s mother as a juror and where the judge commented during voir dire that he considered himself “part of law enforcement”?

Should the trial judge have recused himself from deciding the defendant’s motion to strike the judge’s mother as a juror?

Should the Supreme Court exercise its superintending authority to prohibit judges’ immediate family members from serving on juries?

Statements of issues are from a Table of Pending Cases.

See Supreme Court accepts six new cases, press release, August 1, 2008.

Review granted in 'State v. Baron'

The Wisconsin Supreme Court on July 28, 2008 granted the petition to review the Court of Appeals decision, 2008 WI App 90, in this case (2007AP1289-CR). The issues:

Whether the identity theft statute (Wis. Stat. § 943.201 (2) (c) prohibiting, in part, the unauthorized use of a person’s identity for the purpose of harming a person’s reputation) is unconstitutional as applied to the facts.

Does the identity theft statute violate a defendant’s right to defame a public official by criminalizing the unauthorized use of a public official’s personal indentifying information to send email messages intended to defame that public official?

Statements of issues are from a Table of Pending Cases

See Supreme Court accepts six new cases, press release, August 1, 2008.

Review granted in 'State v. Payano'

The Wisconsin Supreme Court on July 28, 2008 granted the petition to review the Court of Appeals decision 2008 WI App 74, in this case (2007AP1042-CR). The issues:

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?

Statements of issues are from a Table of Pending Cases.

See Supreme Court accepts six new cases, press release, August 1, 2008.

Certification accepted in 'American Family Mutual Ins. Co. v. Golke'

The Wisconsin Supreme Court on July 28, 2008 accepted the Court of Appeals certification in this case (2006AP3003). The issues:

Under what circumstances may evidence crucial to a potential legal claim be destroyed?

What notice must be given to a civil litigant before such evidence is destroyed?

Statements of issues are from a Table of Pending Cases

See Supreme Court accepts six new cases, press release, August 1, 2008.

Review granted in 'Heritage Farms, Inc. v. Markel Insurance Company'

The Wisconsin Supreme Court on July 28, 2008 granted the petition to review the Court of Appeals decision, 2008 WI App 46, 747 N.W.2d 762, in this case (2007AP983). The issues:

Does Wis. Stat. § 26.21 (1), which allows recovery of double damages and reasonable costs of legal representation for damages suffered due to forest fires resulting from willfulness, malice or negligence, apply to all tortfeasors or only to “railroad corporations?”

Does Wis. Stat. § 26.21 (1) apply to all negligence or only to “gross negligence?”

Statements of issues are from a Table of Pending Cases.

See Supreme Court accepts six new cases, press release, August 1, 2008.

Review granted in 'State v. Ferguson'

The Wisconsin Supreme Court on July 9, 2008 granted the petition to review the Court of Appeals decision (unpublished) in this case (2007AP2095-CR). The issues:

Does the court of appeals’ decision conflict with the abrogation of the common law privilege to forcibly resist an unlawful arrest articulated in State v. Hobson, 218 Wis. 2d 350, 577 N.W.2d 825 (1998)? How does the decision in State v. Hobson interact with the obstructing an officer statute (Wis. Stat. § 946.41 (1))? Does the decision conflict with State v. Annina, 2006 WI App 202, 296 Wis. 2d 599, 723 N.W.2d 708 (2006)?

Should the jury be instructed to consider whether a police officer’s warrantless entry into a home was constitutionally justified by exigent circumstances or should that determination be made by the court as a matter of law? See State v. Hughes, 2000 WI 24, 233 Wis. 2d 280, 607 N.W.2d 621.

Should the hot pursuit doctrine apply to render constitutional a warrantless entry into an individual’s home when the police are seeking to arrest the individual for a misdemeanor?

Statements of issues are from a Table of Pending Cases.

See Supreme Court accepts six new cases, press release, August 1, 2008.

Gableman joins high court

Patrick Marley reports in today's Milwaukee Journal Sentinel that Michael Gableman was sworn in as a Justice of the Wisconsin Supreme Court yesterday at the Burnett County Government Center in Siren. Justice Patrick Crooks administered the oath of office.

About 200 people — including Justices David Prosser and Patience Roggensack — attended, Gableman said.

Court of Appeals opinions week of July 28, 2008

(linked from post title) Among the decisions:


State v. Schutz (2008AP729-CR July 31, 2008)
Citing unpublished opinions, by David Ziemer, Wisconsin Law Journal, August 1, 2008


State v. Miller (2007AP2551-CR July 29, 2008)
Restitution order overturned, by Marie Rohde, Proof and Hearsay


Wisconsin Law Journal current case digests

Rule governing the discretionary transfer of cases to tribal court 2008 WI 114

The Wisconsin Supreme Court yesterday entered an order [html | pdf] creating Wis. Stat. §801.54 Discretionary transfer of civil actions to tribal court, effective January 1, 2009.
Dissent by Justice Roggensack, with Justices Prosser and Ziegler

I write in dissent because: (1) Rule 801.54 is inadequate and misleading in regard to addressing tribal court concurrent subject matter jurisdiction, which jurisdiction is extremely limited in scope when nonmembers are parties to the action; (2) Rule 801.54 impermissibly alters the substantive rights of tribal members, as well as nonmembers, contrary to the provisions of Wis. Stat. § 751.12(1) (2005-06),[3] which limits the court's rule-making power; (3) Rule 801.54 undermines federal and state constitutional and statutory rights of litigants; and (4) a majority of the court has pushed this rule-change through before the end of the 2007-08 term of the court, even though the court has been presented with no information about the substantive rights and civil procedures that are available in tribal courts.

Hearing audio January 8, 2008


Petition filed July 24, 2007 by A. John Voelker, Director of State Courts


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

Arguments in the Court of Appeals August 2008

August 7, 2008 Wisconsin Court of Appeals at District II, 2727 North Grandview Blvd., Waukesha
10:00 a.m. State v. Krueger (2007AP2064-CR)

August 28, 2008 Wisconsin Court of Appeals at District I, 633 W. Wisconsin Ave., #1400, Milwaukee
10:30 a.m. State v. Carroll (2007AP1378-CR)

Current Wisconsin Supreme Court Justices

(with the year of taking office, and year first elected if later)

Chief Justice Shirley S. Abrahamson (1976, 1979, Chief 1996)

Justice Ann Walsh Bradley (1995)

Justice N. Patrick Crooks (1996)

Justice David T. Prosser, Jr. (1998, 2001)

Justice Patience D. Roggensack (2003)

Justice Annette Kingsland Ziegler (2007)

Justice Michael J. Gableman (2008)