Spontaneous identifications admissible in court

The Wisconsin Supreme Court held that its exclusion of "showup" identifications in State v. Dubose does not apply to spontaneous identifications occurring during accidental confrontations between a defendant and a witness.

Good Samaritan immunity limited

The Wisconsin Supreme Court limited immunity for laymen who provide emergency care to the period before professional medical assistance can be provided.

State Bar welcomes 175 new members; Marquette Law School class sworn in at Capitol

"Today is a day that sets you apart as a human being," observed State Bar President D. Michael Guerin, a Marquette Law School alumni. "What you have learned in law school provides you with the skills you need to succeed, because the ultimate beneficiary of your skills and knowledge is your client. As lawyers, you fall into a very privileged class. Less than two percent of the population are lawyers. Remember There are many people that need your help – the underserved and the unserved portions of our population are far greater than the two percent.

"You are privileged to be here today (for admission), to have the support of your family and friends, and the support of 21,000 members of the State Bar of Wisconsin to get you involved in activities for the benefit of the profession," he said.

Speaking of percentages, our State Bar reports that once again 100% of newly-admitted lawyers joined up.

Appellate Decisions Released May 31, 2006

The Wisconsin Supreme Court released its opinion in Richards v. First Union Securities, Inc. today. The Court ruled that when a party seeks to set aside a default judgment because of improper service, the moving party bears the burden of proving ineffective service. The Court also ruled that a "managing agent," for purposes of sufficiency of service, is "a person possessing and exercising the right of general control, authority, judgment, and discretion over the business or affairs of the corporation, either on an overall or part basis, i.e., everywhere or in a particular branch or district."

The Wisconsin Court of Appeals released these opinions today, recommending publication of the following:

Norda, Inc. v. Wisconsin Educational Approval Board. The Court of Appeals ruled that a company offering programs that lead to Department of Public Instruction teacher certification is not subject to oversight by the Wisconsin Education Approval Board.

Linda L. v. James Collis (custody of a minor).

State v. Rockette. State's witness, who had previously made inculpatory statements in prior interviews and testimony regarding the defendant, claimed no present memory of the statements. The Circuit Court declared the witness hostile and allowed the State to ask leading questions about his prior statements. Cross-examination, naturally, bore no fruit as the witness continued to claim no memory of the prior statements. The Court of Appeals ruled this did not violate Defendant's right to confront witnesses against him. There was no mention of dance revues.

Bills enacted May 22, 2006, Acts 430-437

Act 430 mandatory terms of confinement for certain child sex offenses and providing penalties.

Act 431 global positioning system tracking and a residency requirement for certain sex offenders, changes to the sex offender registry Web site, and providing a penalty.

Act 432 registered sex offenders and photographing persons under the age of 17.

Act 433 child pornography, sexual exploitation of a child, using a computer to facilitate a child sex crime, grants to nonprofit organizations providing services to victims of sexual assault, making appropriations, and providing penalties.

Act 434 the definition of sexually violent person, sexually violent person commitment proceedings, criteria for supervised release, battery by certain committed persons, escape from custody by a person who is subject to a sexually violent person commitment proceeding, and providing penalties.

Act 435 the definition of sexual contact and providing penalties.

Act 436 sexual intercourse or sexual contact with a person who is under the influence of alcohol beverages and providing a penalty.

Act 437 sexual assault of a child and providing a penalty.

The Internet Theologian Explains The Da Vinci Code

Q: How do we know these non-canonical works are more accurate than the canonical ones?
A: Because the people who regarded them as sacred came out on the losing end.

Q: So, the fact that they were ultimately less popular and successful than the canonical gospels means they're true?
A: As Elaine Pagels explains it, yes.

Q: So, in that case, is the "real" foundational document of the U.S. government actually the Articles of Confederation?
A: Yes! I was just saying that to the President of Congress the other day.

State-Level Protection for Good-Faith Pharmaceutical Manufacturers

Former FDA General Counsel Daniel Troy has written a white paper [37 pp. pdf] discussing a particular tort reform measure undertaken in the State of Michigan. Michigan created by statute an "FDA compliance" defense, restricting product liability claims against companies that meet FDA labeling and production requirements. Other states have passed similar legislation. Should patients be limited in bringing claims against companies who met FDA requirements? Does the Supremacy Clause bar such product liability claims? Dan Troy discusses these and other legal and policy issues in his paper.

You can also view a webcast of his presentation of the paper.

Vetoes May 26, 2006

Veto message regarding AB 4 creating a nonrefundable individual income tax credit for certain amounts relating to health savings accounts that may be deducted from, or are exempt from, federal income taxes.

Veto message regarding AB 55 immunity of private campground owners and operators.

Veto message regarding AB 461 requiring legislative approval to locate a gaming establishment on certain lands taken into trust for the benefit of Indian tribes.

Veto message regarding AB 850 the regulation of certain wharves, piers, boat shelters, boat hoists, and boat lifts.

Veto message regarding AB 1021 inadmissibility of a statement of apology or condolence by a health care provider.

Veto message regarding AB 1182 requiring the secretary of administration to submit certain reports to the joint committee on finance.

Veto message regarding SB 446 interfund transfers in state government.

Veto message regarding SB 551 creating an exemption for certain wetlands for the construction of a structure located in the town of Franklin, Kewaunee County.

Veto message regarding SB 567 limiting eligibility for public assistance programs to U.S. citizens and qualifying aliens, requiring documentary proof of citizenship or satisfactory immigration status, granting rule-making authority, and providing a penalty.

Board creates Ethics 2000 review committee, votes on multijurisdictional practice petition, among other actions

Our State Bar reports on the Board of Governors May meeting. On the agenda,

Rules of Professional Conduct for Attorneys.
Multijurisdictional practice.
Keller dues reduction.

There were elections and appointments

Board Chair.
Executive Committee.
ABA House of Delegates.
Wisconsin Trust Account Foundation (WisTAF) board.
WisTAF assessment task force.

The board "unanimously supported cosponsoring a resolution from the ABA Presidential Advisory Council on Diversity in the Profession" and "unanimously approved the FY 07 annual State Bar budget."

P.S. Here are the draft minutes [Word] from the Board's previous meeting in March

Political Tidbits May 26, 2006

The latest report from The Hamilton Consulting Group.

Gov. Doyle Signs Bills/Expected to Veto Gaming Oversight

Endorsement of Mark Green for Governor Energizes GOP at Convention

Wisconsin Women in Government Host Annual Banquet

First Sir Richard May Seminar on International Law and International Courts - A Retrospective View from a Participant

From the International Judicial Monitor, by Justice Ann Walsh Bradley of the Wisconsin Supreme Court

(via WisBlawg)

Appellate Decisions Released May 29, 2006

Neither the Wisconsin Supreme Court nor the Wisconsin Court of Appeals released any opinions or dispositional orders today.

How Welfare Reform Worked

Kay S. Hymowitz in City Journal says Though successful beyond anyone's wildest dreams, welfare reform left key problems unsolved.

Bills enacted May 19, 2006, Acts 411-429

Act 411 vehicle owner liability for violations arising from the failure to stop at the scene of an accident and providing a penalty.

Act 412 causing property damage, injury, or death while operating a vehicle without a valid driver's license or after suspension or revocation of an operating privilege and providing penalties.

Act 413 testing of persons involved in certain motor vehicle accidents and providing a penalty.

Act 414 authority for an off-duty peace officer to act outside his or her territorial jurisdiction and making an appropriation.

Act 415 ratification of the agreement negotiated between the state of Wisconsin and the Wisconsin Law Enforcement Association, for the 2003-05 biennium, covering employees in the law enforcement collective bargaining unit, and authorizing an expenditure of funds.

Act 416 ratification of the agreement negotiated between the state of Wisconsin and the Wisconsin Law Enforcement Association, for the 2005-07 biennium, covering employees in the law enforcement collective bargaining unit, and authorizing an expenditure of funds.

Act 417 the prohibition against a public officer or employee having a private interest in a public contract.

Act 418 identification and cleanup of properties that are environmentally contaminated; properties with residual contamination; modifying the environmental remediation tax incremental financing program; exempting local governmental units from solid waste management standards with respect to certain properties; the liability of certain persons for environmental contamination on property on which a cleanup has been conducted; and granting rule-making authority.

Act 419 the rights of adult children of crime victims.

Act 420 the organization and funding of public libraries and public library systems and granting rule-making authority.

Act 421 the Uniform Real Property Electronic Recording Act, creating an electronic recording council, and granting rule-making authority.

Act 422 references to certificates granted by the Marriage and Family Therapy, Professional Counseling, and Social Work Examining Board and eligibility requirements for training certificates for marriage and family therapists and professional counselors.

Act 423 the prohibition against the harvest of raw forest products from tax delinquent lands and notice and recording requirements for persons who harvest raw forest products.

Act 424 designation of state aviation facilities at the Dane County Regional Airport as the Fritz E. Wolf Aviation Center.

Act 425 excavation notices and installation of certain water and sewer laterals.

Act 426 ratification of the agreement negotiated between the state of Wisconsin and the District 1199W/United Professionals for Quality Health Care, SEIU, AFL-CIO, for the 2005-07 biennium, covering employees in the professional patient care collective bargaining unit, and authorizing an expenditure of funds

Act 427 ratification of the agreement negotiated between the state of Wisconsin and the State Engineering Association for the 2003-05 biennium, covering employees in the professional engineering collective bargaining unit, and authorizing an expenditure of funds.

Act 428 ratification of the agreement negotiated between the state of Wisconsin and the State Engineering Association for the 2005-07 biennium, covering employees in the professional engineering collective bargaining unit, and authorizing an expenditure of funds.

Act 429 ratification of the agreement negotiated between the state of Wisconsin and the Association of State Prosecutors for the 2005-07 biennium, covering employees in the assistant district attorneys collective bargaining unit, and authorizing an expenditure of funds.

Supreme Court accepts 11 new cases

Catching up with the news, the Wisconsin Supreme Court accepted review in these cases.

The court also denied review or petitions to bypass in another 59 cases, with dissents in one.

Bills enacted May 18, 2006, Acts 408-410

Act 408 consecutive monthly registration of certain vehicles used exclusively to transport calcium chloride liquid or a weight transfer machine for truck or tractor pulling competitions or events.

Act 409 fenced areas of farm-raised deer that are located both in this state and in an adjoining state.

Act 410 posting of information relating to certain pending state contracts and orders on the Internet.

Is There a "Qualified Teacher" Shortage?

Michael Podgursky in Education Next

Bills enacted May 10, 2006, Acts 386-407

Act 386 contracts with entities to operate resource centers and care management organizations under the Family Care Program, the option of self-directed services, review of expansions of capitation of payments under managed care programs for provision of long-term care services, evaluations of certain managed care programs for provision of long-term care services, requiring increased payment to nursing homes for care provided as a Family Care benefit, and requiring an annual report concerning relocations and diversions from nursing homes, intermediate care facilities for the mentally retarded, and centers for the developmentally disabled.

Act 387 guardianships, conservatorships, and wards; involuntary administration of psychotropic medication; protective placements and protective services; powers of attorney for health care; durable powers of attorney; venue, residence, and county of responsibility; requiring the exercise of rule-making authority; receipt and acceptance of foreign guardianships; and providing a penalty.

Act 388 adult protective services and providing penalties.

Act 389 drunken driving and creating a penalty.

Act 390 the conveyance of certain submerged lands to Brown County.

Act 391 approval of state building projects and contracts and use of bidding procedures on such contracts and the allocation of village assets and liabilities upon dissolution.

Act 392 sale, by the Department of Transportation, of surplus real property.

Act 393 appointment to limited term and project positions in the state civil service.

Act 394 the use by the Department of Natural Resources of seized, confiscated, or unclaimed property for educational hunting, fishing, trapping, and other conservation activities; the sale by the Department of Natural Resources of seized, perishable property and confiscated wild animals and carcasses; and the receipt of proceeds by the Department of Natural Resources for skins of fur-bearing animals that are prepared as part of the course of instruction under the trapper education program.

Act 395 warning methods for ice holes or openings in streams, ponds, and lakes, liability resulting from the creation of ice holes or openings, and providing a penalty.

Act 396 the membership of the Kickapoo Reserve Management Board.

Act 397 licensing and activities of driver schools and instructors, granting rule-making authority, and providing a penalty.

Act 398 the possession and use of inhalers in private schools.

Act 399 eliminating an outdated reference regarding the calculation of the school levy property tax credit (suggested as remedial legislation by the Department of Revenue).

Act 400 abandoned and unclaimed property.

Act 401 terms of office of and vacancies in the office of county highway commissioner.

Act 402 income continuation insurance errors (suggested as remedial legislation by the Department of Employee Trust Funds).

Act 403 the compensation paid for temporary reserve judges.

Act 404 membership of the State Laboratory of Hygiene Board; nonresident tuition exemption for veterans; and the transfer program at the University of Wisconsin School of Medicine and Public Health (suggested as remedial legislation by the Board of Regents of the University of Wisconsin System).

Act 405 the payment of interest on property tax refunds for manufacturing property and making an appropriation.

Act 406 the confidentiality of information entered into the statewide automated child welfare information system.

Act 407 certification of substance abuse counselors, clinical supervisors, and prevention specialists and requiring the exercise of rule-making authority.

Taking the Constitution Seriously

Eric R. Claeys in the Claremont Review of Books reviews The Heritage Guide to the Constitution edited by Edwin Meese III, Matthew Spalding, and David Forte

Though many originalists are suspicious of legal realism and the other legal theories that supplanted natural law, they have a long way to go to reconstruct the moral imagination that informed the Constitution's drafting and ratification. Absent this moral context, the Free Speech Clause and many other important rights guarantees reduce to unprincipled assertions that cannot be explained by the few concrete examples we have of the founders' attitudes and practice.

Bill enacted May 8, 2006, Act 385

Act 385 the failure to publish certain notices relating to the creation, or attempted creation, of a tax incremental financing district in the village of Kimberly.

Getting Theirs

Julie Ann Ponzi in the Claremont Review of Books reviews Female Chauvinist Pigs: Women and the Rise of Raunch Culture by Ariel Levy

But despite her clear-eyed insights, Levy can't quite bring herself to indict feminism for its role in all this. Too much seems to be at stake for her: her politics, her upbringing in a family of feminists, her education at Wesleyan, her firm--almost quaint and precious--belief in the natural irrelevance of gender difference. All these seem to inhibit her drawing the conclusions to which her research and arguments naturally point. Instead of condemning feminism and the sexual revolution for what they have wrought, she insists that they have been misunderstood by "raunch feminists."

Bills enacted May 5, 2006, Acts 369-384

Act 369 ratification of the agreement negotiated between the state of Wisconsin and the Wisconsin State Public Defenders Association, WFT/AFT, Local 4822, AFL-CIO, for the 2003-05 biennium, covering employees in the public defenders collective bargaining unit, and authorizing an expenditure of funds.

Act 370 ratification of the agreement negotiated between the state of Wisconsin and the Wisconsin State Public Defenders Association, WFT/AFT, Local 4822, AFL-CIO, for the 2005-07 biennium, covering employees in the public defenders collective bargaining unit, and authorizing an expenditure of funds.

Act 371 ratification of the agreement negotiated between the state of Wisconsin and the Professional Employees in Research, Statistics, and Analysis, WFT/AFT, AFL-CIO, for the 2003-05 biennium, covering employees in the professional research, statistics, and analysis collective bargaining unit, and authorizing an expenditure of funds.

Act 372 ratification of the agreement negotiated between the state of Wisconsin and the Professional Employees in Research, Statistics, and Analysis, WFT/AFT, AFL-CIO, for the 2005-07 biennium, covering employees in the professional research, statistics, and analysis collective bargaining unit, and authorizing an expenditure of funds.

Act 373 ratification of the agreement negotiated between the state of Wisconsin and the Teaching Assistants' Association, AFT, Local 3220, AFL-CIO, for the 2003-05 biennium, covering employees in the program, project, and teaching assistants of the University of Wisconsin-Madison and University of Wisconsin-Extension collective bargaining unit, and authorizing an expenditure of funds.

Act 374 ratification of the agreement negotiated between the state of Wisconsin and the Teaching Assistants' Association, AFT, Local 3220, AFL-CIO, for the 2005-07 biennium, covering employees in the program, project, and teaching assistants of the University of Wisconsin-Madison and University of Wisconsin-Extension collective bargaining unit, and authorizing an expenditure of funds.

Act 375 ratification of the agreement negotiated between the state of Wisconsin and the Wisconsin Education Association Council, for the 2003-05 biennium, covering employees in the professional education collective bargaining unit, and authorizing an expenditure of funds.

Act 376 ratification of the agreement negotiated between the state of Wisconsin and the Wisconsin Education Association Council, for the 2005-07 biennium, covering employees in the professional education collective bargaining unit, and authorizing an expenditure of funds.

Act 377 ratification of the agreement negotiated between the state of Wisconsin and the Wisconsin State Employees Union, AFSCME Council 24, and its appropriate affiliated locals, AFL-CIO, for the 2005-07 biennium, covering employees in the administrative support collective bargaining unit, and authorizing an expenditure of funds.

Act 378 ratification of the agreement negotiated between the state of Wisconsin and the Wisconsin State Employees Union, AFSCME Council 24, and its appropriate affiliated locals, AFL-CIO, for the 2005-07 biennium, covering employees in the blue collar and nonbuilding trades collective bargaining unit, and authorizing an expenditure of funds.

Act 379 ratification of the agreement negotiated between the state of Wisconsin and the Wisconsin State Employees Union, AFSCME Council 24, and its appropriate affiliated locals, AFL-CIO, for the 2005-07 biennium, covering employees in the security and public safety collective bargaining unit, and authorizing an expenditure of funds.

Act 380 ratification of the agreement negotiated between the state of Wisconsin and the Wisconsin State Employees Union, AFSCME Council 24, and its appropriate affiliated locals, AFL-CIO, for the 2005-07 biennium, covering employees in the technical collective bargaining unit, and authorizing an expenditure of funds.

Act 381 ratification of the agreement negotiated between the state of Wisconsin and the Wisconsin State Building Trades Negotiating Committee, AFL-CIO, and its appropriate affiliated locals, for the 2005-07 biennium, covering employees in the building trades crafts collective bargaining unit, and authorizing an expenditure of funds.

Act 382 ratification of the agreement negotiated between the state of Wisconsin and the Wisconsin Science Professionals, AFT, Local 3732, for the 2005-07 biennium, covering employees in the professional science collective bargaining unit, and authorizing an expenditure of fund.

Act 383 ratification of the agreement negotiated between the state of Wisconsin and the Wisconsin Physicians and Dentists Association, for the 2005-07 biennium, covering employees in the professional patient treatment collective bargaining unit, and authorizing an expenditure of funds.

Act 384 ratification of the agreement negotiated between the state of Wisconsin and the Milwaukee Graduate Assistants Association, AFT/WFT, Local 2169, AFL-CIO, for the 2005-07 biennium, covering employees in the program, project, and teaching assistants of the University of Wisconsin-Milwaukee collective bargaining unit, and authorizing an expenditure of funds.

Appellate Decisions Released May 26, 2006

The Wisconsin Supreme Court released its decision in State v. Hibl today, which addresses the issue of eyewitness identification.

The Wisconsin Court of Appeals did not release any opinions today.

Telecommunications Federalism Conference

Audio recordings of these May 3rd presentations are now available [mp3].

How to Stop Medicaid Fraud

Steven Malanga in City Journal says For starters, states should try.

Appellate Decisions Released May 25, 2006

On May 25, 2006, the Wisconsin Supreme Court released the following opinions:

Mueller v. Warner Ins. Co. Good Samaritan statute does not immunize defendant for care provided over a six- to seven-hour period following the immediate intervention and care given after the injured plaintiff arrived at defendant's house. The Court held that trained medical personnel could have been summoned during that period of time, and that the "emergency" had ceased when it became possible to obtain professional care.

Wisconsin Auto Title Loans v. Jones. Arbitration provision in loan agreement between the parties was unconscionable because (1) the borrower was poor and needed cash; (2) the lender had substantially greater bargaining power; (3) the agreement was an adhesion contract; and (4) the lender had full access to the courts, while the borrower was limited to arbitration.


On May 25, 2006, the Wisconsin Court of Appeals released these opinions, recommending publication of the following:

State v. Nelson. A person has a reasonable expectation of privacy in using one's bathroom, and so videotaping one's neighbor on the throne constitutes a violation of Wis. Stat. sec. 942.09. The Court of Appeals held that "reasonable expectation of privacy" need not be interpreted in a Fourth Amendment context; the words bear their common and ordinary meanings.

L.M.S. v. Atkinson (denial of pre-trial relief; use of "other acts" evidence; quantum of evidence supporting damages for future medical expenses).

Shannon E.T. v. Alicia M. V.M. A man may not bring a paternity action relating to a still-born infant for the purpose of bringing a wrongful death claim.

Is God ambidextrous?

From the Lexington column in The Economist

The biggest problem for the religious left is that it is badly outgunned by the secular left.

Daily reports from the 2006 WHO World Health Assembly

As part of our NGOWatch project, the Federalist Society has sent representatives to Geneva, Switzerland this week to monitor the activities and policies decided upon by delegations from the 192 Member States of the World Health Organization at the World Health Assembly. The Assembly is the supreme decision-making body for WHO, and often has made controversial policy pronouncements on intellectual property, AIDS, reproductive health, and drug pricing, among other issues. The main function of the World Health Assembly is to determine the policies of the Organization. We will be bringing our members and friends reports from the Assembly all week. We hope that you find them informative and thought-provoking.

CCW statute trumps constitutional rights

Wisconsin's constitutional right to bear arms for, among other purposes, security, does not protect citizens from prosecution under the state's carrying a concealed weapon law, if the possession of the weapon is in a motor vehicle.

Giving laxatives to suspect is constitutional

Reversing the court of appeals, the Wisconsin Supreme Court held that administering laxatives to a suspect who ingested a package of heroin does not violate the Fourth Amendment.

Appellate Decisions Released May 24, 2006

The Wisconsin Supreme Court did not release any opinions or dispositional orders today.

The Wisconsin Court of Appeals released these opinions today, and recommended publication of the following:

Wangard Partners v. Gerald Graf. Real estate broker does not need to include the mandatory disclosures of Wis. Stat. sec. 452.125(2) in the listing contract; the disclosures simply need to be provided in writing before provision of brokerage services.

Terrorist Surveillance and the Constitution

In light of the recent debate over the President's powers during wartime, the Federalist Society has produced a monograph [136 pp. pdf] on the legal and constitutional issues implicated by NSA's global al Qaeda surveillance program. Although this surveillance program is important in its own right, the ongoing dialogue about its proper legal and policy parameters has become a surrogate for a broader discourse about the constitutional balance among the Executive, Congress, and the Judiciary.

Job Redistribution a la Francaise

Luther Carpenter in Dissent

Ten percent unemployment, plus or minus a point, maintained for twenty-five years, has had corrosive effects. Job redistribution has been the main line of defense against these corrosive effects. Mass unemployment lengthens the waiting line for jobs. Only the best-educated young graduates in areas such as the sciences get a real job before they are twenty-five. Until then, they stay in school, piling up credentials, and getting more tense because of the heightened competition in school and in the job market. They may take apprenticeships or temporary contracts. To the French, a real job means a full-time one, with the protections of labor law, not an assignment scheduled to vanish in six months. Small wonder in this climate that 77 percent of a sample of young people said they would like a civil service job.

An amusing concurrence by Justice Stevens

From today's U.S. Supreme Court decision, Brigham City v. Stuart:

This is an odd flyspeck of a case. The charges that have been pending against respondents for the past six years are minor offenses—intoxication, contributing to the delinquency of a minor, and disorderly conduct—two of which could have been proved by evidence that was gathered by the responding officers before they entered the home. The maximum punishment for these crimes ranges between 90 days and 6 months in jail. And the Court’s unanimous opinion restating well-settled rules of federal law is so clearly persuasive that it is hard to imagine the outcome was ever in doubt.

Under these circumstances, the only difficult question is which of the following is the most peculiar: (1) that the Utah trial judge, the intermediate state appellate court, and the Utah Supreme Court all found a Fourth Amendment violation on these facts; (2) that the prosecution chose to pursue this matter all the way to the United States Supreme Court; or (3) that this Court voted to grant the petition for a writ of certiorari.

Appellate Decisions Released May 23, 2006

The Wisconsin Supreme Court did not release any opinions or dispositional orders today.

The Wisconsin Court of Appeals released these opinions today, and recommended publication of the following:

DeHart v. Wisconsin Mutual Ins. Co. An unidentified motor vehicle that struck another vehicle forcing plaintiff's car off the road is an "unidentified motor vehicle involved in a hit-and-run accident" under Wis. Stat. sec. 632.32(4)(a)2.b., which mandates coverage.


B&D Contractors v. Arwin Window Systems, Inc. (construction of "'property damage' to 'your product'" insurance exclusion).


State v. Bannister. The State's failure to corroborate a significant fact in defendant's confession invalidated the judgment of conviction.

Appellate Decisions Released May 22, 2006

Neither the Wisconsin Supreme Court nor the Wisconsin Court of Appeals released any opinions today.

Oral argument week of May 21

The Wisconsin Court of Appeals has scheduled oral argument in the following.

05/23/06 at Dist. I, 633 W. Wisconsin Ave., #1400, Milwaukee

09:00 a.m. Milwaukee Regional Medical Center, Inc v. City of Wauwatosa 2005AP1160

10:30 a.m. Linda T. Peterson v. Cornerstone Property Development, LLC 2004AP3358

The insanity of the rational basis test

Clark Neily of the Institute for Justice, in the NYU Journal of Law and Liberty exposes the sham we call the rational basis test.

Citing the Wisconsin Supreme Court's decision in Ferdon v. WI Patients Compensation Fund, 701 N.W.2d 440 (2005): "the rational basis test is nothing more than a Magic Eight Ball that randomly generates different answers to key constitutional questions depending on who happens to be shaking it and with what level of vigor."

Administrative Register effective May 15, 2006

The Revisor of Statutes Bureau has issued the first half of No. 605 which includes

Emergency rules now in effect.
Scope statements.
Submittal of rules to legislative council clearinghouse.
Rule-making notices.
Submittal of proposed rules to the legislature.
Rule orders filed with the revisor of statutes bureau.
Public notices.

The Bureau also announces

The 2003-04 Wisconsin Statutes and Annotations are now available in bound volumes or on the WisLaw CD-ROM.

2006 National Lawyers Convention November 16-18

The theme for this year's Convention is "Limited Government." Members should receive updates and registration information by mail this summer.

Appellate Decisions Released May 19, 2006

The Wisconsin Supreme Court released its opinion in Orion Flight Services, Inc. v. Basler Flight Service today. In this case the Supreme Court ruled that aviation fuel does not constitute "motor vehicle fuel" for purposes of the Wisconsin Unfair Sales Act, which requires a minimum markup on the price of motor vehicle fuel.

The Wisconsin Court of Appeals did not release any opinions today.

Appellate Decisions Released May 18, 2006

The Wisconsin Supreme Court released the following opinions today:

State v. Payano-Roman. The question before the Court was whether the administration of a laxative, subsequent to which Mr. Payano-Roman, er, expressed a baggie of heroin, was a government search subject to the Fourth Amendment. The Wisconsin Supreme Court ruled this a search, albeit a reasonable one that did not offend Mr. Payano-Roman's constitutional right to continence.

Coleman v. McCaughtry. The Court held that petitioner had unreasonably delayed in petitioning for writ of habeas corpus (based on appellate counsel's alleged ineffective assistance). However, it found the record insufficient to determine whether the delay had prejudiced the State, and so remanded to the Court of Appeals for fact-finding.

Buyatt v. Metropolitan Property and Casualty Ins. Co (consolidated with Kontowicz v. American Standard Ins. Co. of Wisconsin). An insurer of a negligent tortfeasor is liable under Wis. Stat. sec. 646.31(2) for simple interest at 12% per annum when three conditions exist: (1) There is no question regarding the insured's liability; (2) the amount of damages are a sum certain; and (3) the claimant provides the written notice of liability and the sum certain owed.

Royster-Clark, Inc. v. Olsen's Mill, Inc. UCC and contractual provisions requiring written amendments may be obviated through either waiver or partial performance.

The Wisconsin Court of Appeals released these opinions today, recommending publication of the following:

Bryan v. Pink. In small claims cases, the trial court should first apportion fault between parties based on the total proven damages, and then apply the small claims jurisdictional cap of $5,000 to the result.

Appellate Decisions Released May 17, 2006

The Wisconsin Supreme Court released its opinion in State v. Fisher today.

The Supreme Court considered whether the right to keep and bear arms, vouchsafed to Mr. Fisher by Article I, section 25 of the Wisconsin Constitution, prohibited his prosecution under these circumstances. The Circuit Court held it did, and upon the State's appeal, the Court of Appeals certified the question to the Wisconsin Supreme Court. The case arose as follows:

In a discussion with a DNR warden, Mr. Fisher acknowledged he carried a gun in his car for security purposes. Mr. Fisher said he needed the gun because, as a tavern owner, he routinely carried large amounts of cash. The warden seized the gun and issued Mr. Fisher a citation for unlawfully carrying a concealed weapon.


The constitutional provision reads as follows:

"The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose."

The State pursued Mr. Fisher pursuant to Wis. Stat. sec. 941.23, which reads:

"Any person except a peace officer who goes armed with a concealed and dangerous weapon is guilty of a Class A misdemeanor."

The people of the State of Wisconsin adopted the constitutional provision subsequent to enactment of the criminal statute. The people of the Wisconsin Supreme Court decided the constitutional provision erected no bar to prosecution because Mr. Fisher did not demonstrate a "substantial need to exercise his right to keep and bear arms for security purposes."

By the way, let's welcome the National Rifle Association to Wisconsin for its yearly convention.

The Wisconsin Court of Appeals released these opinions today, of which it recommended publication of the following:

State v. Sutton (voluntariness of a guilty plea).

Appellate Decisions Released May 16, 2006

The Wisconsin Supreme Court did not release any opinions or dispositional orders today.

The Wisconsin Court of Appeals released these opinions today, of which it recommended publication of the following:

Bain v. Tielens Construction, Inc. (preoccupation of a worker in the performance of his work as it relates to the determination of his negligence).


State v. Mattox (double jeopardy).

Interrogation by prosecutors raises ethical questions

Prosecutors who participate in questioning suspects prior to charging may need to do more than ensure that the Miranda warnings are given. They may need to explain the prosess for appointment of counsel to indigents, and give the suspect a reasonable opportunity to obtain counsel.

Discharged attorney denied fees

An attorney hired on a contingency fee basis, and then discharged without cause, was denied an award of any attorney fees, because the reasonable value of successor counsel's legal services exceeded the amount of the contingency fee.

Unfortunate dicta in the decision could result in an absurd situation, in which an attorney discharged, before undertaking any work on the case, could recover more than the attorney who successfully prosecuted the case.

Appellate Decisions Released May 15, 2006

Neither the Wisconsin Supreme Court nor the Wisconsin Court of Appeals released any opinions today.

Appellate Decisions Released May 12, 2006

The Wisconsin Supreme Court did not release any opinions or dispositional orders unrelated to attorney discipline today.

The Wisconsin Court of Appeals did not release any opinions today.

Appellate Decisions Released May 11, 2006

The Wisconsin Supreme Court did not release any opinions or dispositional orders today.

The Wisconsin Court of Appeals released these opinions, but did not recommend publication of any of them.

Judge Luttig resigns

Judge Michael Luttig has resigned from the U.S. Court of Appeals for the Fourth Circuit to work for Boeing. Luttig was frequently mentioned as a possible U.S. Supreme Court nominee.

Hat tip to Amber

Appellate Decisions Released May 10, 2006

The Wisconsin Supreme Court did not release any opinions or dispositional orders today.

The Wisconsin Court of Appeals released these opinions today, of which it recommended publication of the following:

Nicholas C.L. v. Julie R.L. (standards involved in determining custody of child).

Making a mess of a simple foreclosure

There is no reason to file a foreclosure action on a home in federal court, even if diversity is present.