CJ Abrahamson and Expansive Rights for Criminal Defendants

Daniel Suhr at The Triumvirate on December 27, 2008

See Decision in 'State v. Dubose' 2005 WI 126 and Decision in 'State v. Knapp' 2005 WI 127

Access to Justice

David Ziemer at his Wisconsin Law Journal weblog, December 30, 2008

Perhaps, as I believe, a loser-pays rule would encourage access to justice. Perhaps, it would not. But the issue belongs on the table.

See Wisconsin high court takes step toward creating legal aid organization, In the matter of the Creation of an Access to Justice Commission (08-17)

Court of Appeals arguments January 2009

From the Wisconsin Court of Appeals Oral Argument Schedule, updated November 25, 2008


January 6, 2009 at Dist. I, 633 W. Wisconsin Ave., #1400, Milwaukee

10:30 a.m. Industrial Risk Insurers v. American Engineering Testing, Inc. (2008AP484)


January 14, 2009 at Dist. II, 2727 North Grandview Blvd., Waukesha

9:30 a.m. State v. Denton (2007AP2825-CR) and State v. Dahl (2007AP2826-CR)

Petition filed for rules on OLR referrals to WLAP

On December 29, 2008 Keith Sellen, Director, Office of Lawyer Regulation (OLR), and Diane Diel, President, State Bar of Wisconsin, filed a Petition with the Wisconsin Supreme Court

for an order establishing procedures for lawyer support and monitoring within the State Bar (Appendix A) and for OLR to refer lawyers for assessment, treatment, and monitoring (Appendix B).

In the Matter of the Petition for Lawyer Support and Monitoring and Procedures for Referrals from the Office of Lawyer Regulation (08-28)

Review granted in 'State v. Long'

The Wisconsin Supreme Court on December 9, 2008 granted the petition to review the Court of Appeals decision in this case (2007AP2307-CR). The December 15, 2008 Table of Pending Cases [html | pdf] says the issues are:

Was the victim’s testimony that the defendant “tightly hugged” the victim sufficient to convict him of second degree sexual assault?

Was the victim’s testimony that the defendant “tightly hugged” the victim sufficient to convict him of false imprisonment?

Was the defendant’s previous Minnesota burglary conviction, which involved allegations that he pulled the victim’s pants down and grabbed her buttocks, sufficient to support the application of the persistent repeater provision, Wis.Stat. § 939.62(2m)(b) and (c)?

Wisconsin Supreme Court Accepts Six New Cases, Will Consider Constitutionality of Hate-Crime Penalty Enhancer, by Jessica E. Slavin, Marquette University Law Faculty, December 19, 2008

CJ Abrahamson and “Judicial Empathy”

Daniel Suhr at The Triumvirate, December 24, 2008

See Decision in 'State v. Picotte' 2003 WI 42, Decision in 'Gehin v. Wisconsin Group Insurance Board' 2005 WI 16, and Decision in 'Wisconsin Auto Title Loans, Inc. v. Jones' 2006 WI 53

Is Cheerleading A Sport?

Matthew J. Mitten at Marquette University Law School Faculty, December 27, 2007

See Argument in 'Noffke v. Bakke'

Court of Appeals opinions week of December 29, 2008

(linked from post title)


Wisconsin Law Journal current case digests

Decision in 'State v. Denk' 2008 WI 130

The Wisconsin Supreme Court today issued its decision in this case (2006AP1744-CR) affirming the Circuit Court on certification by the Court of Appeals.
Opinion by Justice Bradley for a unanimous court.

See Review granted in 'State v. Denk'

Decision in 'Loth v. City of Milwaukee' 2008 WI 129

The Wisconsin Supreme Court today issued its decision in this case (2007AP587) reversing the Court of Appeals, 2008 WI APP 12.
opinion by Chief Justice Abrahamson for a unanimous court.

See Review granted in 'Loth v. City of Milwaukee'

Review granted in 'Donaubauer v. The Farmers Auto Ins. Assoc.'

The Wisconsin Supreme Court on December 9, 2008 granted the petition to review the Court of Appeals decision, 2008 WI App 116, in this case (2007AP1992). The December 15, 2008 Table of Pending Cases [html | pdf] says the issues are:

Did the trial court err in refusing to modify or vacate an appraisal award where there was evidence that the appraisers misunderstood their role in the process and the issues before them?

Did the trial court err in refusing to allow the plaintiff to conduct discovery regarding the appraisal process where there was information suggesting that the appraisers did not appreciate their role in the process and where the appraisal amount was substantially disproportionate to other estimates?

Did the trial court err in requiring the plaintiff to engage in a binding appraisal where there was no evidence that he agreed to participate in a binding appraisal?

Did the trial court err in granting summary judgment on the plaintiff’s claim for breach of contract where the insurance policy did not mandate that the plaintiff replace his home before the insurer was obligated to make payment, where the terms of the policy endorsement were unclear, and where the terms of the endorsement were unconscionable?

Did the trial court err in granting summary judgment on the plaintiff’s claim for bad faith where there was evidence indicating that the insurer failed in its obligations regarding the investigation of the plaintiff’s claim?

Newly Accepted Civil Cases at Wisconsin Supreme Court, Including Biskupic Slander Case, by Jessica E. Slavin, Marquette University Law Faculty, December 19, 2008

C.J. Abrahamson Cites Foreign Law

Daniel Suhr at The Triumvirate, December 23, 2008

See Decision in 'Kalal v. Circuit Court for Dane County' 2004 WI 58

Judicial Elections and an Independent Judiciary

Our State Bar's 2009 convention will include these programs presented by its Professionalism Committee and its Senior Lawyers Division on the afternoon of Thursday May 9.

1:00 - Elected Judges vs. Appointed—The Pros and the Cons
Chief Justice Shirley S. Abrahamson, Wisconsin Supreme Court, Madison
Mr. William Johnston, Wisconsin State Journal, Madison
Mr. David Newby, Wisconsin State AFL-CIO, Milwaukee

1:50 - Judicial Recusal Standards—Should They Be More Rigorous?
Atty. James Sample, Brennan Center for Justice, New York University School of Law, New York, New York
Atty. Charles G. Geyh, University of Indiana Law School, John F Kimberling Professor of Law, Bloomington, Indiana

2:55 - McConnell v. FEC, 540 U.S. 93 (2003), and the Regulation of Third Party Issue Ads in Judicial Elections
Atty. Kevin J. Kennedy, Wisconsin Government Accountability Board-Campaign Finance & Election Divisions, Madison
Atty. Brady C. Williamson, Jr., Godfrey & Kahn SC, Madison

3:45 - What Constitutes Appropriate Judicial Campaigning? An interactive panel discussion with audience participation
Atty. Charles G. Geyh, University of Indiana Law School, John F Kimberling Professor of Law, Bloomington, Indiana
Mr. William Johnston, Wisconsin State Journal, Madison
Atty. Kevin J. Kennedy, Wisconsin Government Accountability Board-Campaign Finance & Election Divisions, Madison
Mr. David Newby, Wisconsin State AFL-CIO, Milwaukee
Atty. James Sample, Brennan Center for Justice, New York University School of Law, New York
Atty. Brady C. Williamson, Jr., Godfrey & Kahn SC, Madison

Chief Justice Abrahamson was the featured speaker at our chapter event "Let Fifty Flowers Bloom" May 7, 1998. Mr. Sample was a panelist at our chapter event "Judicial Elections and Free Speech" March 11, 2008.

Wisconsin high court takes step toward creating legal aid organization

Steven Walters reported in the Milwaukee Journal Sentinel

This month, the court voted 6-0, with Justice David Prosser abstaining, to direct its staff to work with the State Bar of Wisconsin and other officials on a draft order authorizing the nonprofit group.

(via WisPolitics)


See Supreme Court directs its staff to study “Wisconsin Access to Justice Commission” concept advanced by the State Bar, In the matter of the Creation of an Access to Justice Commission (08-17)

This Week in Liberal Judicial Activism: Week of December 29, 2008

Ed Whelan at Bench Memos. This week "Punishing a real Bad Marriage, Barkett’s 'socially redeeming' killer, and Stevens’s hallucination"

Mr. Whelan was the featured speaker at our chapter event "Judicial Confirmations in the New Senate" March 8, 2007.

Review granted in 'State v. Welda'

The Wisconsin Supreme Court on December 8, 2008 granted the petition to review the Court of Appeals decision in this case (2007AP2024-CR). The December 15, 2008 Table of Pending Cases [html | pdf] says the issues are:

Does Wisconsin’s hate crime law, Wis. Stat. § 939.645(1)(b), permit additional punishment in a speech-only disorderly conduct case when the speech itself forms the basis for the penalty enhancer?

Is Wisconsin’s hate crime law unconstitutional applied to the facts of this case?

Do the facts of this case indicate a “speech only” disorderly conduct case or would the facts support a disorderly conduct charge based on the defendant’s actions in addition to his speech?

Thoughts on Welda and Hate Crimes, by Richard M. Esenberg, Marquette University Law Faculty, December 26, 2008

Court to consider hate crime, by David Ziemer, Wisconsin Law Journal, December 24, 2008

Wisconsin Supreme Court Accepts Six New Cases, Will Consider Constitutionality of Hate-Crime Penalty Enhancer, by Jessica E. Slavin, Marquette University Law Faculty, December 19, 2008

Supreme Court accepts three new cases

The Wisconsin Court System provided Synopses of the accepted cases December 22, 2008.

Among the cases not accepted:
Est. of Pulda v. State Farm (2006AP2395) Chief Justice Abrahamson dissents.
Chobanian v. Meriter (2007AP1278) Chief Justice Abrahamson dissents.
State v. Mayo (2007AP1844) Justice Bradley dissents.
Jandre v. PIC (2008AP1972) Chief Justice Abrahamson and Justice Prosser dissent.

Court of Appeals opinions week of December 22, 2008

(linked from post title)


Wisconsin Law Journal current case digests

Decision in 'Office of Lawyer Regulation v. Radcliffe' 2008 WI 128

The Wisconsin Supreme Court today issued its unanimous decision in this case (2008AP1791-D) approving the stipulated 90 day suspension.

Taxes and Textualism:

Taxes and Textualism: Due Weight Deference to the Wisconsin Tax Appeals Commission, by Richard Esenberg [Commentary on 'Wisconsin Department of Revenue v. Menasha Corporation' 2008 WI 88]

This summer’s decision of the Wisconsin Supreme Court in Wisconsin Department of Revenue v. Menasha Corporation¹ involved a relatively dry question of tax law, i.e., whether a base software package that required substantial modification to meet the needs of the purchaser was a “custom computer program” exempt from Wisconsin’s sales tax.² But the case featured a series of less technical subnarratives raising questions of judicial ethics, state fiscal policy and, although less widely appreciated, the relationship between Wisconsin taxpayers and the state’s Department of Revenue.

Menasha Corporation is a packaging and logistics firm located in Neenah, Wisconsin. After a lengthy search process, it purchased a software package known as the R/3 system from a firm called SAP. The R/3 system was a rudimentary business and accounting system that could be modified to meet a user’s unique needs. While the R/3 system has been sold to many companies, no company can—or ever does—use it “off the shelf.” After paying $5.2 million for the system, Menasha spent roughly eighteen million dollars to make the system usable in its operations.

Whether the need to customize a base program makes it “custom” involved interpretation of an administrative rule promulgated by the Department of Revenue (“Department”). That rule defined custom computer programs as “utility and application software which accommodate the special processing needs of the customer” and listed seven factors to be considered, along with “all the facts and circumstances,” in determining whether a program is “custom.”³ The rule distinguished prewritten programs from custom programs, defining the former as “programs prepared, held or existing for general use normally for more than one customer.”⁴

The Department of Revenue took the position that the base R/3 program was not “custom” and that the money paid for it, although not the amounts spent to modify it, was subject to sales tax. Menasha appealed to the Wisconsin Tax Appeals Commission (“Commission”) which held that the purchase price of the R/3 package was not subject to tax. It applied all seven factors and found that they militated in a finding that the system was “custom.” It held that the program was not prewritten because it was not ready to be used and emphasized the need to substantially modify the program to meet Menasha’s needs.

The Department appealed to the Circuit Court for Dane County which reversed the Commission’s decision. The court of appeals then reversed the decision of the circuit court and the supreme court granted review. In a 4-3 decision, the court affirmed the judgment of the court of appeals finding that the R/3 package was nontaxable. Before addressing the court’s reasoning, let us pause over two of the three subnarratives.

The first was a question of judicial ethics. Wisconsin elects its supreme court justices to ten-year terms. In the last two years, we have seen hotly contested and heavily financed elections, spurred, in part, by a series of decisions in 2005 which seemed to suggest a move to a more interventionist jurisprudence.⁵ In the spring of 2006, certain business groups, including Wisconsin Manufacturers & Commerce (“WMC”), spent heavily in support of Judge Annette Ziegler in her race against Attorney Linda Clifford. Ziegler won handily. In the spring of 2007, the same groups spent heavily in support of the challenger, Judge Michael Gableman, against incumbent Louis Butler (who was himself supported by substantial independent expenditures). Gableman won a bitter race and, on the ground, the Wisconsin Supreme Court has become a highly charged subject.

As the Menasha case approached oral argument, a number of voices began to call for the newly elected Justice Ziegler to recuse herself. WMC had not contributed to Ziegler’s campaign but had independently financed ads promoting her election. It was not a party to the case and did not stand to benefit from the result. What it did do is file an amicus brief supporting Menasha’s position and it is fair to say that many of its members, businesses who might purchase software packages similar to the R/3 package—stood to benefit from a ruling in favor of Menasha.

This call coincided with our second subnarrative. Wisconsin, like many other states, faces a biennial budget crisis. The state’s Legislative Fiscal Bureau estimated that a ruling in favor of Menasha would result in lost tax revenues of almost $300 million through the end of the 2008-09 biennium and $28 million annually thereafter. Both dissents estimated the fiscal implication of the majority decision⁶ and press coverage of the decision emphasized the decision’s fiscal impact.⁷ In the wake of the decision, politicians called for various forms of campaign finance reform and public financing of judicial elections.⁸

Thus the decision fueled the debate around the elected judiciary and the nature of judicial elections. It also raised the following issue: whether the notion that a supreme court justice ought to recuse herself from cases in which factions that actively supported her election is ultimately irreconcilable with the idea of an elected judiciary. In last spring’s election, for example, while business interests supported the challenger, an organization associated with public employee unions, trial lawyers and Indian casinos spent heavily in favor of incumbent justice Louis Butler.

Having explored the atmospherics surrounding the case, let us return to the decision itself. For the dissenters, the analysis was focused upon the nature of the R/3 system at the time it was acquired without regard to what happened later. The amount Menasha paid for the system included no customization. It brought only a base package that was its responsibility to modify. This, in their view, made the program not “customized but customizable” and, therefore, it was not a program that “accommodate[s] the special processing needs of the customer.” Because the same base system was sold to many customers for subsequent modification, the dissenters argued that it was available “for general use normally for more than one customer.” and was, therefore, a prewritten program.

This is consistent with the notion that the legislator was trying to avoid taxation of amounts that, while ostensibly spent for tangible personal property subject to tax—i.e., software—are really compensation for the services that were or will be required to modify it.

However, there are other reasonable interpretations. Customized software will almost always begin with a commonly employed base system and the legislature may have not wished to tax what is in effect, the working material to be employed in what will be, for the most part, an acquisition of consulting services to create what will be, in the end, a unique system.

That view is consistent with the approach of the Tax Appeals Commission. It also focused on the nature of the R/3 system at the time of its acquisition but was concerned about what would happen later. Because the system was not useable by Menasha for anything but customization, it was not, in its view, available for “general use” and not prewritten. Because it had to be subject to substantial modification, it was, at the end of the day, a program that would “accommodate the special processing needs of the customer.” For the majority, the fact that the decision of the Tax Appeals Commission was not plainly erroneous or inconsistent with the statute or administrative rule required deference to the Commission.

And that is our third subnarrative. The majority declined to defer—or to even give much weight to the interpretation of the Department of Revenue because state law, in its view, placed final authority with the Commission. Deference to the state’s taxing authority would be inconsistent with the Commission’s quasijudicial function. “The taxpayer brings his or her appeal to the Commission at a significant disadvantage,” it reasoned, “if the Commission must defer to the taxpayer’s opponent.”⁹

Although reasonable people can differ on application of the sales tax in these circumstances, the idea that a taxpayer is entitled to a fresh look at the law when engaged in a dispute is, as Justice Ziegler wrote, an important issue for the individual taxpayer.

---

Endnotes

1 2008 WI 88.

2 Wis. Stat. §77.51(20)(defining tangible personal property subject to tax as including “computer programs except custom computer programs”).

3 Wisconsin Admin. Code § Tax 11.71(1)(e).

4 Id. at §11.71(1)(k).

5 See, e.g., A Court Unbound? The Recent Jurisprudence of the Wisconsin Supreme Court (2007), available at http://www. fed-soc.org/publications/pubID.5/pub_detail.asp (last visited September 28, 2008). [newer URL]

6 2008 WI 88 at ¶128 (Abrahamson, C.J. dissenting)(“The fiscal implications of the new tax exemption created by the majority opinion are substantial”); Id. at ¶ 209 Bradley, J. dissenting)(“Here’s the $300 million question…”).

7 Business Wins Big in High Court, Milwaukee Journal Sentinel, July 11, 2008.

8 See, e.g., Trust in Supreme Court Weakens After Tax Case, (press release by Rep. Steve Hilgenberg (D-Dodgeville) calling for passage of something called the “Impartial Judiciary Bill”), available at http:// www.thewheelerreport.com/releases/July08/jul14/0714hilgenbergmenasha.pdf) (last visited on September 29, 2008).

9 2008 WI 88 at ¶59.


Richard Esenberg is Visiting Assistant Professor at Marquette University Law School.

[Originally published in State Court Docket Watch Fall 2008, republished by permission]

Supreme Court accepts six new cases

The Wisconsin Court System provided synopses of the accepted cases, December 19, 2008.

Among the cases not accepted:
Weinke v. Freeman (2007AP2062) Justice Bradley dissents.
State v. Otis G. (2008AP196) Chief Justice Abrahamson dissents.

This Week in Liberal Judicial Activism: Week of December 22, 2008

Ed Whelan at Bench Memos. This week "ABA scalping, grinching, and misassembling gifts"

Mr. Whelan was the featured speaker at our chapter event "Judicial Confirmations in the New Senate" March 8, 2007.

Supreme Court directs its staff to study “Wisconsin Access to Justice Commission” concept advanced by the State Bar

Our State Bar reported December 18, 2008,

The State Bar of Wisconsin’s petition calling for the creation of a new Wisconsin Access to Justice Commission will be the subject of further deliberations by the state Supreme Court, following a Wednesday, Dec. 17 open conference and hearing on Rules Petition 08-17. The Court voted 6-0 to direct its staff to develop a proposed order forming a not for profit corporation to serve as the Wisconsin Access to Justice Commission with the purpose of improving access to justice.

See Hearing on Creation of an Access to Justice Commission, In the matter of the Creation of an Access to Justice Commission (08-17). Reviewing the history of support for pro bono work, our State Bar's report says,

Wisconsin attorneys have responded to these needs in a variety of other ways, including pro bono or reduced-fee services and the $50 annual assessment they pay to the Public Interest Legal Services Fund which provides almost $800,000 per year in stable funding for legal services to the poor.

The $50 annual assessment is a tax imposed on Wisconsin attorneys by the Wisconsin Supreme Court. Paying that is here characterized as Wisconsin attorneys responding the needs of others, though it might reflect a desire to continue to be allowed to practice.

Supreme Court pending cases December 17, 2008

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

including petitions for review granted and certifications accepted December 9 through 16, 2008.

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

Our State Bar reports

The arbitrator [Christopher Honeyman] concluded that the Bar has “persuasively demonstrated that the public image campaign is within the language and intent of SCR 10.02 and 10.03, such as to make its costs chargeable to objectors.”

See Arbitrator to decide by year’s end on Keller dues objection


Update: Keller dues arbitration does not address constitutionality, by Jack Zemlicka, Wisconsin Law Journal, December 17, 2008

arbitrator Christopher Honeyman did not rule on the broader issue of whether the charges are constitutional, which means Levine could challenge the issue in court.

“If he had decided that the State Bar’s public image campaign was germane to improving the quality of legal services, I would be out of luck as far as going to court,” [Steven A. ] Levine said.

“He only decided whether the campaign was political or not.”

“He basically said, ‘I’m not getting involved in the constitutional issue at all,’” Levine said.

Supreme Court pending cases December 15, 2008

The Wisconsin Supreme Court on December 15, 2008 posted an updated Table of Pending Cases [html | pdf] that

added petitions for review granted and certifications accepted on December 9 through 12, 2008.

Hearing on Creation of an Access to Justice Commission

Per the Wisconsin Supreme Court's November 11, 2008 Pending Rules Petitions [html | pdf]

December 17, 2008 9:30 a.m. In the matter of the Creation of an Access to Justice Commission (08-17) public hearing and open adminstrative conference

See Hearing set on Access to Justice Commission and Bar asks for Access to Justice Commission

Court of Appeals opinions week of December 15, 2008

(linked from post title)

Wisconsin Law Journal current case digests

Argument in OLR v. Sommers''

Per the Wisconsin Supreme Court's September 26, 2008 Assignment for the Month of December 2008 [html | pdf]

December 16, 2008 1:30 p.m. (2006AP2851-D

Argument in 'State v. Ferguson'

Per the Wisconsin Supreme Court's September 26, 2008 Assignment for the Month of December 2008 [html | pdf]

December 16, 2008 10:45 a.m. 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)?

Argument in 'State v. Tody'

Per the Wisconsin Supreme Court's September 26, 2008 Assignment for the Month of December 2008 [html | pdf]

December 16, 2008 9:45 a.m. 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?

This Week in Liberal Judicial Activism: Week of December 15, 2008

Ed Whelan at Bench Memos. This week "Little Brennans on state supreme courts".

Mr. Whelan was the featured speaker at our chapter event "Judicial Confirmations in the New Senate" March 8, 2007.

Bar board splits on BBE plans

Jack Zemlicka reported in the Wisconsin Law Journal, December 12, 2008, on decisions at the December 5, 2008 meeting of our State Bar Board of Governors.

The board unanimously endorsed at its Dec. 5 meeting a proposal from the Board of Bar Examiners to allow graduates of law schools outside the country to take the bar exam in Wisconsin. However, the board opposed a petition to permit foreign attorneys to serve as “legal consultants” in the state, without having to become licensed.

See Board of Governors weighs in on foreign lawyers, changes to character screening of bar applicants, In the Matter of the Petition to Create Supreme Court Rule SCR 40.056 Authorizing Registered Legal Consultants (08-08), and In the Matter of the Petition to Create Supreme Court Rule SCR 40.055 Relating to Admitting Graduates of Law Schools in Other Nations (08-09)

Watchdog group plans to monitor Supreme Court race

Dee J. Hall reports in the Wisconsin State Journal

A self-appointed watchdog will again be weighing in on the race for state Supreme Court this spring, after two campaigns that were as contentious, expensive and partisan as races for other high office.

While self-appointed, the State Bar Board of Governors eventually decided the creation of the WJCIC was within the authority of the President of the State Bar, which was then Tom Basting Sr.. See Board reaffirms president’s authority to appoint ad hoc committees and supports amicus in public access to mental health records case, among other actions

Tom Basting Sr. of the State Bar of Wisconsin said Thursday he plans to reconstitute the [Wisconsin] Judicial Campaign Integrity Committee to monitor advertising and rhetoric in the officially nonpartisan race, which so far pits incumbent Chief Justice Shirley Abrahamson against Jefferson County Circuit Judge Randy Koschnick.

Presumably as Past-president he does not literally mean he has the authority to reconstitute this Bar committee himself.

Earlier this year, Basting's group was criticized as favoring then-incumbent Justice Louis Butler after e-mails from one of the committee members criticizing challenger Michael Gableman's campaign manager were obtained by a group favoring Gableman, then a Burnett County Circuit Court judge.

See Star Chamber's Secret Deliberations Exposed

Update: The Associated Press in the Appleton Post-Crescent reports Organization to monitor state Supreme Court campaigns.

Tom Basting Sr. says the State Bar will reconstitute the group for the current race between Chief Justice Shirley Abrahamson and Jefferson County Circuit Judge Randy Koschnick.

(via WisPolitics)

The Great Divorce:

At Pennumbra, "The Great Divorce: The Current Understanding of Separation of Powers and the Original Meaning of the Incompatibility Clause"

In this lively Debate, Seth Barrett Tillman and Professor Steven Calabresi consider the possibility of a joint senate-presidential office-holding. Tillman makes the bold assertion that there is no constitutional bar to President-elect Obama retaining his Senate seat. Though the President-elect has, in fact, relinquished his seat in the Senate, Tillman argues that this debate is about more than incompatible office-holdings because “it also has clear implications for our understanding of the reach of” several related constitutional provisions. Treating the text formalistically, Tillman carefully parses the Constitution’s Incompatibility Clause (which restricts a member of either house of Congress from “holding any Office under the United States”), other related clauses, and the meaning of the words “officer” and “office,” to reach the conclusion that the presidency is not “an Office under the United States.” Thus, Tillman maintains, the Incompatibility Clause poses no bar to a joint office-holding.

Citing other constitutional provisions that are understood to refer to the President as an “officer” of the United States (such as the Necessary and Proper Clause), Professor Calabresi counters that Tillman has “made an ingenious argument for an utterly implausible proposition” that “is contrary to the plain meaning of the constitutional text and to the way we have done things for eight hundred years.” Calabresi argues that, under an originalist reading, the terms “office” and “officer” should be read according to “what the ordinary citizen on the street would have thought words meant.” Because Tillman’s reading is “too subtle by half,” Calabresi asserts that it would create “a bizarre conflict of interest—a conflict of interest unprecedented in the last eight hundred years.”

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

[Steven Snedeker and Michelle Stoeck on 'Stuart v. Weisflog's Showroom Gallery, Inc.' 2008 WI 86]

The supreme court held that a commercial general liability (CGL) policy did not cover statutory misrepresentation claims because:

(1) the misrepresentations were not accidental occurrences within the meaning of the policy, and
(2) because property damage arising out of their work was excluded from coverage.

The plaintiffs had entered into two contracts with defendants, Weisflog and WSGI, for a home remodeling project that cost about $280,000. The project included an expansion of the living room, family room, master bedroom, garage, an additional bedroom and a spa room.

Four years after the project was completed, problems with the floor in the spa room were discovered and the lawsuit was filed. The complaint included allegations that the defendants had violated the Home Improvement Trade Practices Act (Wis. Admin. Code Ch. ATCP 110). The plaintiffs then amended the complaint and named the insurer of the defendants.

At trial, witnesses testified that the defendants had made assurances that the products were high quality, that they understood local building codes and regulations, and that all of the architectural design work would comply with the codes. The plaintiffs presented evidence of poor quality products and services and produced statements of the defendants allegedly admitting that they were not familiar with the requirements of the applicable residential building code.

The jury found that the defendants had made misrepresentations in order to induce the plaintiffs to enter into the contracts. The jury further found that the defendants were negligent in the design and remodeling of the project. The defendants were found liable for $95,000 in damages, allocating 25% of the damage award to the misrepresentations and 75% to the negligent construction.

On appeal, the appellate court concluded that the entire damage award must be doubled and remanded for a determination of attorney’s fees. It also held that the policy covered the damages award because the statutory misrepresentation claims do not require proof of intent to deceive and are therefore a covered occurrence. The appellate court found that the insurer was responsible for all of the damages because the contract and ensuing negligent construction would not have occurred but for the misrepresentations. The appellate court finally determined that neither of the policy’s business risk exclusions applied to bar coverage.

The supreme court’s reversal of the appellate ruling began with a review of the language of the insuring agreement. The high court noted that the policy pays damages because of property damage caused by an occurrence. Occurrence was defined as “an accident…” The supreme court agreed that “accident” means “an event or condition occurring by chance or one that arises from unknown causes, and is unforeseen and unintended.”

The supreme court noted that Section ATCP 110.02(11) clearly indicates that intent is an element of the statutory misrepresentation violation. As such, the ATCP misrepresentations were not accidental occurrences. Both the ATCP 110 claims and Wisconsin Statute Section 100.18 claims include an element of intent -- to sell or to induce. “As such, ... the act in this case [is] clearly volitional in nature.”

The court noted that the plaintiffs’ attempted to avoid the definition of “intent” by arguing that the representations were false only after the job was completed. However, this characterization was contrary to the plaintiffs’ evidence that the representations were false at the time that they were made and were not merely a promise of future performance.

The court found that case law did not support an interpretation of “accidental occurrence” that would include misrepresentations willingly made with the particular intent to induce a party to act.

The decision is significant not only for its impact on the building/remodeling trade, but also with respect to residential and commercial real estate transactions. The supreme court’s recent ruling that the Economic Loss Doctrine precludes common law misrepresentation claims leaves home buyers who allege leaky basements with only breach of contract or statutory claims, such as Wisconsin Statute Section 100.18 claims. This decision undoubtedly will be applied by litigants in the context of Homeowners policies (with the same insuring agreement language and definition of “occurrences”) to preclude insurance coverage for those leaky basement claims brought under Wisconsin Statute Section 100.18 claims.

Interestingly, the high court appeared to make this decision less broad in its scope by noting that the jury here found that volition and intent existed (apparently because the jury found the misrepresentations had occurred under the Home Improvement Act): “Our holding today does not ... resolve the question of whether an “occurrence” in a future case could involve an accidental misrepresentation, in which a person may have misspoken.” The court went to great lengths to discuss evidence that the defendants’ conduct was a volitional act. Perhaps the court was instructing future litigants what must be shown in order to trigger coverage. To that end, the court provided: “To determine whether an act is accidental within the meaning of the CGL policy....we need only determine whether the occurrence giving rise to the claims was an unintentional act in the sense that it was not volitional.”

Although the misrepresentations did not constitute an occurrence, the court noted that the rule of concurrent risks could still compel coverage due to the negligence claims in the case and the jury’s findings that the negligent construction caused 75% of the damages. Accordingly, it examined the policy’s exclusions and concluded that the “your work” exclusion applied to bar coverage. The supreme court found that the property damage arose out of negligence and misrepresentations, that the damage did not occur on defendants’ property, and that the work was completed at the time that the damages arose.

The court found that the subcontractor exception was “nongermane” as no subcontractors were involved with the initial design other than to implement the design by doing the construction. Per the court, the involvement of subcontractors was insufficient, rather, the negligence of subcontractors was required to have caused the damage in order for the exception to apply to restore coverage. Here, the court found that the subcontractors performed work at the direction and under the supervision of the defendants. Accordingly, the Wisconsin Supreme Court’s finding was that American Family did not have to provide insurance coverage for the damages awarded.

Justice Bradley (joined by Justice Abrahamson) wrote a concurrence which differed from the majority in noting that whether an act is intentional is based upon determining whether the injury or damages are unexpected and unintentional -- not whether there is some intentional act involved somewhere down the line. Further, she wrote that negligent misrepresentations which include a volitional act can be an accident (and hence, may trigger coverage) if: (1) the insured did not intend to make a misrepresentation; (2) if the insured did not intend to cause injury; and if (3) the injury was not foreseeable. In other words, negligent misrepresentations do not give rise to accidents/occurrences where the misrepresentations are akin to fraud.

Justice Roggensack (joined by Justice Ziegler) wrote a concurrence which provided that the jury’s findings did not sustain an actionable claim for misrepresentation because the jury found only promises of future performance (such as that the defendants would comply with the building codes, would build a good product, etc.). She noted that a representation cannot ripen into an actionable misrepresentation if promises are not kept. Justice Roggensack also took issue with the majority for engaging in fact finding (suggesting the court should have looked only to the jury’s special verdict responses), and with the court’s interpretation of Everson, suggesting that the majority read Everson as requiring an intent to deceive along with the volitional act. The justice also stated that the economic loss doctrine should apply to preclude the plaintiffs’ negligent construction claim.

In sum, insurers who are litigating coverage should seek to dismiss Wisconsin Statute Section 100.18 (and other similar statutory misrepresentation claims) based upon this decision.

[The preceding is adapted from "Coverage Issues Involving Statutory Misrepresentation", Hills Legal Group, Ltd., Hearsay newsletter, Volume 8, Issue 2, October 31, 2008 and is used with permission.]

Wisconsin Supreme Court Reviews Cop Shooting Case

At Wisconsin Public Radio, December 10, 2008, on Argument in 'State v. Payano'

Can a suspected drug dealer claim self defense when he is charged with shooting a police officer trying to search his apartment ? That's a question the state Supreme Court will decide sometime next year. Gil Halsted explains... [audio]

Candidly Acknowledging Limitations in Underlying Data Can Help An Expert Survive a Daubert Challenge

Patrick J. Kenny, in DRI's Daubert Online Fall 2008, on United States v. Mikos, 539 F.3d 706 (7th Cir. 2008)

No Money? Draw Your Own!

Richard M. Esenberg at the Marquette University Law School Faculty, December 8, 2008

Wager anyone?

I'll bet a beer and a shot of Jagermeister that this event gets cancelled due to cold and/or snow. Unfortunately, even if that were to happen, the zealots participating in this nonsense are too clueless to even appreciate the irony:

Lt. Governor Lawton and University of Wisconsin-Stevens Point to Co-Host Historic Wisconsin Climate Change Summit
Co-hosts Lieutenant Governor Barbara Lawton and Chancellor Linda Bunnell of the University of Wisconsin-Stevens Point will welcome hundreds of local government, private industry, environmental and other community leaders from across the state, organized as regional teams, to the historic Climate Change Summit: Wisconsin Communities Take Action on Friday, December 12, 2008 from 9:00 a.m. to 3:45 p.m.

Keynote speakers include nationally recognized experts Terry Tamminen, former senior advisor on environmental issues to California Governor Arnold Schwarzenegger and author of Lives Per Gallon: The True Cost of Our Oil Addiction, and Ron Burke, Midwest Director for the Union of Concerned Scientists and former Associate Director of the Illinois Environmental Protection Agency. Breakout sessions led by top state and academic authorities in multiple fields are designed to facilitate regional strategies to tackle the twin challenges of global climate change –adaptation and mitigation. UW-SP Chancellor Linda Bunnell and Stevens Point Mayor Andrew Halverson will also speak at the convention.


WHERE: UW-Stevens PointLee S. Dreyfus University CenterStevens Point, WI

WHEN: Friday, December 12, 2008 9:00 a.m.

NOTE: Lt. Governor Lawton speaks at 9:05 a.m., Terry Taminen speaks at 9:18 a.m., Ron Burke speaks at 11:45 a.m. For full details click below to view the agenda:http://www.uwsp.edu/conted/conferences/climatechange/agenda.aspx

Click the following link for a map of the campus:http://www.uwsp.edu/tour/PDF/UWSP_CAMPUS_MAP.pdf Full summit website:http://www.WiClimateChangeSummit.com

Board of Governors discusses prosecutors’ ethics rule addressing wrongful convictions

Alex De Grand reports at WisBar.

The State Bar Board of Governors discussed the rule sponsored by the Wisconsin District Attorneys Association at its Dec. 5 meeting.

The Bar's Professional Ethics Committee supports the Petition.

Petition 08-24 urges modification to Supreme Court Rule 20:3.8 to require a prosecutor to promptly disclose “new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted.”

See Hearing and Conference on prosecutor's duties after convictions March 9, 2009, In the matter of amendment of Supreme Court Rules Chapter 20, Rules of Professional Conduct for Attorneys (08-24)

Judge running for state Supreme Court criticized

The Associated Press reports in the La Crosse Tribune.

[Jefferson County Circuit Judge John] Ullsvick said he’s not seeking re-election because of the way [Chief Judge Randy] Koschnick assigns the same judges the same types of cases, instead of varying the assignments.

Koschnick said his system is more efficient, improving the county’s justice system and resulting in faster processing.

State court records show Jefferson County disposed of nearly 31 percent more cases under the new system in 2007 than it did the previous year.

The AP report is based on Dissension among Jefferson County judges gets rare public airing, by Steven Elbow

(via WisOpinion and WisPolitics)

Chief justice courts Jefferson

James Debilzen reports in the Fort Atkinson Daily Union, December 8, 2008

Wisconsin Supreme Court Chief Justice Shirley Abrahamson took her re-election campaign to the back yard of her challenger Saturday night as she rode in Jefferson's 13th annual Parade of Lights.

Court of Appeals opinions week of December 8, 2008

(linked from post title)


Wisconsin Law Journal current case digests

Damage Caps and Medical Malpractice Litigation

A series of posts by David Hyman at the Volokh Conspiracy; Part I.

See 'Ferdon v. Wisconsin Patients Compensation Fund' 2005 WI 125

Board of Governors weighs in on foreign lawyers, changes to character screening of bar applicants

Our State Bar reports further on its Board of Governors meeting December 5, 2008. The Board took positions on four pending rules petitions scheduled for hearing February 9, 2009.

The Board opposed

the creation of a category of practitioners known as legal consultants. These individuals are defined as lawyers licensed in other nations who would be limited to advising clients on international and foreign law. Under the proposal, a legal consultant would not be able to practice state law except in conjunction with a Wisconsin lawyer.

See Rules Petitions filed April 1, 2008, In the Matter of the Petition to Create Supreme Court Rule SCR 40.056 Authorizing Registered Legal Consultants (08-08)

Governors approved Supreme Court Petition 08-09 with the slight amendment recommended by the State Bar’s BBE Review Committee. This measure would permit graduates of law schools in other nations to take the Wisconsin bar examination, and if successful, to be admitted to the state’s practice of law. The BBE Review Committee modified the language of the proposal so that a foreign applicant need be engaged in the practice of law for three of the last five years rather than five of the past seven before making an application.

See Rules Petitions filed April 1, 2008, In the Matter of the Petition to Create Supreme Court Rule SCR 40.055 Relating to Admitting Graduates of Law Schools in Other Nations (08-09)

the board rejected Supreme Court Petition 08-10 aimed at granting absolute immunity from civil liability to those who share information about a bar applicant with the BBE as well as for BBE members and its agents.

See Rules Petitions filed April 1, 2008, In the Matter of the Petition to Create Supreme Court Rule SCR 40.065 Relating to Immunity for Persons Who Supply Information Relating to Applicants (08-10)

The governors unanimously embraced Petition 08-11, a proposed change to the character and fitness process that would encourage bar applicants to address questions raised about them.

See Rules Petitions filed April 1, 2008, In the Matter of the Petition to Amend Supreme Court Rule SCR 40.08 Relating to Adverse Determinations of Bar Applicants’ Character and Fitness (08-11)

Legal Organization May Become Influential Beyond Its Dreams

Michael A. Fletcher in the Washington Post, December 7, 2008 on the potential influence in the Obama Administration of the "little-known" American Constitution Society for Law and Policy.

Eric H. Holder Jr., an ACS board member, has been nominated to be attorney general. Executive Director Lisa Brown has been tapped to be White House staff secretary, a key slot that involves reviewing all documents that go before the president. Board member Teresa Wynn Roseborough has been prominently mentioned as a possibility for several jobs in the Obama administration, including solicitor general.

Mr. Fletcher describes the dreams mentioned in the headline.

ACS officials say their organization is modeled on the Federalist Society, a conservative legal group that has seeded Republican administrations and the federal bench with its members. The group has helped foster a network of conservative lawyers and judges while popularizing methods of legal analysis rooted in the idea that the Constitution has a fixed and knowable meaning, rather than an evolving meaning that should adapt to contemporary times. That view has given the federal courts a decidedly conservative tilt, ACS members argue -- something that Federalist Society officials call evidence of the strength of their ideas.

"I think ideas are often underrated in Washington," said Federalist Society President Eugene B. Meyer. "People think it's all about power, but at the end of the day, ideas are very important."

ACS members agree. And they would like nothing more than to duplicate the Federalist Society's influence.

(via ACSblog)

Politics in Civil Jury Selection

Alan M. Tuerkheimer in Wisconsin Lawyer, December 2008, on what mock trial results indicate.

In the end, excessive reliance on party affiliation in civil jury selection is a mistake. While there is a general pro-plaintiff inclination among Democrats and a general pro-defendant inclination among Republicans, these inclinations tend to be on abstract matters and do not correspond with actual juror decisions on damages.

State Bar seeks member input on recusal standards

Our State Bar repeorts that

At its Dec. 5 meeting, the State Bar Board of Governors voted to solicit input from members as it explores judicial recusal reform options.

See State justices consider recusal rules

The Supreme Court has scheduled a hearing on these petitions for April 20, 2009.

Update: State Bar board starts discussion on recusal rules, by Jack Zemlicka, Wisconsin Law Journal, December 5, 2008

Argument in 'State v. Fernandez'

Per the Wisconsin Supreme Court's September 26, 2008 Assignment for the Month of December 2008 [html | pdf]

December 9, 2008 1:30 p.m. 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?

Argument in 'State v. Payano'

Per the Wisconsin Supreme Court's September 26, 2008 Assignment for the Month of December 2008 [html | pdf]

December 9, 2008 10:45 a.m. 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?

Wisconsin Supreme Court Reviews Cop Shooting Case, Gil Halsted, Wisconsin Public Radio, December 10, 2008

Argument in 'Heritage Farms, Inc. v. Markel Insurance Company'

Per the Wisconsin Supreme Court's September 26, 2008 Assignment for the Month of December 2008 [html | pdf]

December 9, 2008 9:45 a.m. 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?”

This Week in Liberal Judicial Activism: Week of December 8, 2008

Ed Whelan at Bench Memos, this week including "Table dancing, Brennan’s stealth, and NARAL’s insights".

Mr. Whelan was the featured speaker at our chapter event "Judicial Confirmations in the New Senate" March 8, 2007.

Judges trade roles in Judicial Exchange Program

WKOW-TV reported.

Established by Wisconsin Supreme Court Chief Justice Shirley S. Abrahamson in 1996, the program offers judges the opportunity to better understand each others' roles by allowing them to temporarily trade duties.

Court of Appeals judges learn more about the practices, procedures and problems of the trial courts; trial judges learn more about creating a trial court record that will pass appellate review.

And, like me, you might try a small claims case to Chief Justice Abrahamson.

(via Illusory Tenant)

Criminal Jury Instruction Committee Report (Summer/Fall 2008)

Jeffren Olsen in The Wisconsin Defender (Summer/Fall 2008) Volume 16, Issue 2

Schechter Poultry

A fascinating post discussing the kosher butchers who won one of the last great victories for liberty of contract, when the Supreme Court struck down the National Recovery Act.

"The Schechters have been forgotten by Jews and by classical liberals, both of whom have every reason to rescue them from the dustbin of history and recognize both their heroism and the fascinating questions of political economy their case raises."

(h/t VC)

How 'activist judge' became a dirty word

Steven Elbow in the Capital Times, December 3, 2008

According to a 2004 California Law Review essay by Keenan Kmiec, Arthur Schlesinger Jr. was the first to use the term -- in a Fortune magazine article in 1947 in which he profiled the U.S. Supreme Court justices, splitting them into camps of "judicial activists" and "champions of self-restraint."

The article was "The Supreme Court: 1947" by Arthur M. Schlesinger, Jr., Fortune, January 1947. Mr. Kmiec quotes this passage from Schlesinger.

This conflict may be described in several ways. The Black-Douglas group believes that the Supreme Court can play an affirmative role in promoting the social welfare; the Frankfurter-Jackson group advocates a policy of judicial self-restraint. One group is more concerned with the employment of the judicial power for their own conception of the social good; the other with expanding the range of allowable judgment for legislatures, even if it means upholding conclusions they privately condemn. One group regards the Court as an instrument to achieve desired social results; the second as an instrument to permit the other branches of government to achieve the results the people want for better or worse. In brief, the Black-Douglas wing appears to be more concerned with settling particular cases in accordance with their own social preconceptions; the Frankfurter-Jackson wing with preserving the judiciary in its established but limited place in the American system.

Alex Pollock "Bubble, Bust and Bailout" December 4, 2008

Alex J. Pollock will speak on the current financial crisis at a luncheon, Thursday, December 4, 2008, 12 o’clock Noon, at the Milwaukee Athletic Club, 758 North Broadway.

Mr. Pollock has been a resident fellow at the American Enterprise Institute since 2004, focusing on financial policy issues, including government-sponsored enterprises, retirement finance, housing finance, corporate governance, accounting standards, and the issues raised by the Sarbanes-Oxley Act. Previously he spent thirty-five years in banking, including twelve years as president and chief executive officer of the Federal Home Loan Bank of Chicago, while also writing numerous articles on financial systems and management. He is a director of Allied Capital Corporation, the Chicago Mercantile Exchange, the Great Lakes Higher Education Corporation, the International Union for Housing Finance, and chairman of the board of the Great Books Foundation.

Presented by the Milwaukee Lawyers Chapter.

Tradename infringement is now a more costly proposition

Alex De Grand, Legal Writer, State Bar of Wisconsin, December 3, 2008, on the Decision in 'D.L. Anderson's Lakeside Leisure Co., Inc. v. Anderson' 2008 WI 126

Supreme Court agrees with BBE petition – reciprocity not always equal – new rule for lawyers not licensed to practice in Wisconsin coming soon

WisBar reported November 19, 2008

On Nov. 18, the Wisconsin Supreme Court adopted Board of Bar Examiners petition 08-07, which amends Supreme Court Rule (SCR) 40.05, relating to admitting lawyers upon proof of practice. The court expects the rule to be effective on Jan. 1, 2009 when SCR 20:5.5, pertaining to the occasional practice of law in Wisconsin by lawyers who are not licensed to practice here but are licensed in another state becomes effective.

See Hearings on admission on proof of practice, trust and fiduciary accounts


In the Matter of the Petition for Amendment to Supreme Court Rule 40.05 Relating to Admitting Lawyers Upon Proof of Practice Elsewhere (08-07)

Membership Satisfaction Survey, November 2008

from our State Bar, consists of four pages containing 30 questions (93 counting sub-parts), including on the fourth page

23. If a vote were held today, would you most likely vote for or against a voluntary Bar?

See State Bar conducts survey on mandatory Bar membership

Reasonable certainty supports damages in tradename dispute

David Ziemer in the Wisconsin Law Journal, December 3, 2008, on the Decision in 'D.L. Anderson's Lakeside Leisure Co., Inc. v. Anderson' 2008 WI 126

Among the court’s holdings:
- Both tradename infringement and damages need only be proved with reasonable certainty;
- Intentional tradename infringement supports an award of punitive damages; and
- A contract providing for attorney fees permits an award of fees incurred pursuing both contract claims and non-contract claims such as tradename infringement.
However, the opinion leaves undecided one very important issue -– whether a contract must include a specific provision for recovery of attorney fees incurred defending contract rights on appeal.

PPAC updates two-year priority list, enhances planning process

Shelly Cyrulik, PPAC policy analyst, in the Wisconsin Court System's quarterly The Third Branch Fall 2008

The Wisconsin Supreme Court's Planning and Policy Advisory Committee (PPAC), based on its planning subcommittee's report, Critical Issues: Planning Priorities for the Wisconsin Court System 2009 -2011, has identified the following priorities for the 2009 - 2011 biennium:
- Improvement of Court System Funding Structure
- Sentencing Alternatives and Strategies to Reduce Recidivism
- Assistance to Self-Represented Litigants
- Judicial Appointment and Selection

CLE reporting procedures amended, 2008 WI 127

The Wisconsin Supreme Court today entered an order [html | pdf] effective immediately "to change the procedures by which Wisconsin attorneys report Continuing Legal Education (CLE) credits." See Hearing on CLE reporting

In the matter of the Petition for Amendment to Supreme Court Rules (SCR) 31.01, 31.03, 31.05, and 31.07 Relating to Procedures for Reporting Continuing Legal Education (CLE) Credits (08-04)

WisTAF and banks meet in friendly debate at Wisconsin Supreme Court on petition seeking comparable interest rates on IOLTA accounts

WisBar reported November 19, 2008

On Nov. 18, the Wisconsin Supreme Court adopted in principle several amendments to SCR 20:1.15 relating to safekeeping property; trust accounts and fiduciary accounts.

See Hearings on admission on proof of practice, trust and fiduciary accounts


In the Matter of the Amendment of SCR 20:1.15 Safekeeping Property; Trust Accounts and Fiduciary Accounts (08-03)

No guns for you!

Seriously, if D.C. v. Heller was not contained in the official reports of the Supreme Court, I would swear it did not exist at all.

Court of Appeals opinions week of December 1, 2008

(linked from post title)


Wisconsin Law Journal current case digests

Decision in 'D.L. Anderson's Lakeside Leisure Co., Inc. v. Anderson' 2008 WI 126

The Wisconsin Supreme Court today issued its decision in this case (2007AP46) affirming in part, and reversing in part, the Court of Appeals, 2007 WI App 269, in a unanimous opinion.


Tradename infringement is now a more costly proposition by Alex De Grand, Legal Writer, State Bar of Wisconsin, December 3, 2008


Reasonable certainty supports damages in tradename dispute, by David Ziemer, Wisconsin Law Journal, December 3, 2008


Supreme Court set to decide tradename, noncompete case, Wisconsin Law Journal, December 1, 2008


See Argument in 'D.L. Anderson's Lakeside Leisure Co., Inc. v. Anderson' and Review granted in 'D.L. Anderson’s Lakeside Leisure Co. v. Anderson Marine'

Assessing respondents for OLR costs continued, 2008 WI 125

Pursuant to a review at the Wisconsin Supreme Court's October 28, 2008 open administrative conference, the court on December 1, 2008 entered an order [html | pdf] including

that the amendments to Supreme Court Rule 22.24 [html | pdf] made pursuant to this court's order dated May 1, 2006, shall continue in effect until further order of this court.

and

that a public hearing on the amendments to Supreme Court Rule 22.24 made pursuant to this court's order dated May 1, 2006, will be scheduled for public hearing prior to December 31, 2010.

In the matter of the Petition for Amendment to Supreme Court Rules relating to Cost Assessments in the Lawyer Regulation System (05-01A)

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

Per the Wisconsin Supreme Court's September 26, 2008 Assignment for the Month of December 2008 [html | pdf]

December 2, 2008 1:30 p.m. 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?

SCOTUScast: Rick Esenberg on 'Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee'

On Wednesday, October 8, the Supreme Court heard oral argument in Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee. Here the Supreme Court considers the extent of employee protection under Title VII's anti-retaliation provision in a case arising from an internal investigation in Nashville, Tennessee, of Gene Hughes, who had been hired by the school district to oversee and investigate all claims of discrimination and harassment but had himself become the subject of sexual harassment complaints. This investigation of the investigator turned up several women, including Vicky Crawford who had worked with Hughes and claimed that he had sexually harassed them, though they had not made any prior claims of offensive conduct. Shortly after the investigation, these women were fired from their jobs, assertedly for unrelated reasons. After filing a complaint with the Equal Employment Opportunity Commission, Vicky Crawford sued the Metropolitan Government, alleging that it had violated the anti-retaliation provisions of Title VII of the Civil Rights Act of 1964, which protects employees who oppose sexual harassment and those who participate in an investigation. The District Court ruled that her activities were not sufficient to bring her within the protections of these provisions, and the Sixth Circuit affirmed. The Supreme Court now considers whether Title VII protects an employee who participates in an internal investigation under either or both of the opposition or participation clauses from retaliation by her employer. Marquette University Law Professor Rick Esenberg discusses the case.

Argument in 'OLR v Brandt'

Per the Wisconsin Supreme Court's September 26, 2008 Assignment for the Month of December 2008 [html | pdf]

December 2, 2008 10:45 a.m. Office of Lawyer Regulation v. Brandt (2007AP187-D)

Argument in 'Tensfeldt v. Haberman'

Per the Wisconsin Supreme Court's September 26, 2008 Assignment for the Month of December 2008 [html | pdf]

December 2, 2008 9:45 a.m. The Wisconsin Supreme Court on May 13, 2008 accepted the Court of Appeals certification in this case (2007AP1638). The issues:

Does a trial court have authority to incorporate into a divorce judgment a stipulation requiring a party to maintain a will in favor of an adult child?

If so, is such a stipulation thereafter enforceable only as a judgment or as contract to make a will, or both?

Should an attorney who drafts a will at his client’s direction, which he/she knows violates the terms of such an incorporated stipulation, but who also advises the client that the will could potentially be challenged as a breach of contract, be excused from any third party liability under either a qualified immunity theory or some other good faith advice defense?

This Week in Liberal Judicial Activism: Week of December 1, 2008

Ed Whelan at Bench Memos on "Subverting text and practicing faux originalism".

Mr. Whelan was the featured speaker at our chapter event "Judicial Confirmations in the New Senate" March 8, 2007.