Monday, July 31, 2006
Sunday, July 30, 2006
The Hard Right
Dean's book calls to mind nothing so much as the scurrilous treatment of Barry Goldwater back in the 1964 campaign. Yeah, yeah, politics ain't beanbag and all that. But our political discourse is rancorous enough without attempting to psychologize our adversaries out of decent debate.
Saturday, July 29, 2006
Oral argument week of July 30, 2006
08/1/2006 10:30 a.m. at Dist. I, 633 W. Wisconsin Ave., #1400, Milwaukee
Hilario Cuellar, Jr., et al v. Ford Motor Company 2005AP2003
Appellate opinions released July 28, 2006
State v. Roberto V. Rodriguez (Police officers trial testimony of statements by persons who did not testify qualified as excited utterances and thus did not deny defendant right to confront witnesses.)
Appellate opinions released July 27, 2006
Hunt Club Condominiums, Inc. v. Mac-Gray Services, Inc. (Condominium association could not terminate contract for coin-operated laundry machines entered into by building owner before conversion.)
Stoughton Trailers, Inc. v. Labor and Industry Review Commission (Finding of unlawful termination "because of" disability upheld where administative agency gave sufficient explanation of variation from prior interpretation of statutory language.)
Friday, July 28, 2006
New legislation changes time period for service of a responsive pleading, Bar seeks member feedback
Act 442 provides that a responsive pleading must be made within 20 days, except that a 45-day period applies in the following cases: 1) The defendant is the state or an officer, agent, employee or agency of the state; or 2) The defendant in an action is an insurance company or the complaint alleges that a tort occurred.
The text of the act is among those linked from this earlier post.
The State Bar's Litigation Section seeks feedback from Bar members regarding problems posed by this Act.
Thursday, July 27, 2006
Viewing Law Blogs as a Vast Amicus Brief
What should judges do if, while visiting the legal blogosphere, they encounter discussions about how pending cases ought to be decided?
(via WisBlawg)
Wednesday, July 26, 2006
Road Trip
Anyone interested in carpooling down there, give me a call. (414) 276-0273 x120.
Tuesday, July 25, 2006
Mistake of law can't support probable cause
Fee sharing agreement unenforceable
For an entertaining discussion of ambulance chasing, 1920s-style, check out Chicago, M., St. P. & P. Ry. Co. v. Wolf, 199 Wis. 278, 226 N.W. 297 (1929).
Appellate argument week of July 23, 2006
07/27/06 10:00 a.m. in Supreme Court Hearing Room, Capitol, 2d Floor, East Wing
Stephen G. Butcher, et al v. Ameritech Corp., et al 05AP2355
Appellate Opinions Released July 25, 2006
The Wisconsin Court of Appeals released these opinions today, recommending publication of the following:
Camp v. Anderson (Negligent infliction of emotional distress is an actionable tort in Wisconsin).
Monday, July 24, 2006
Appellate Opinions Released July 24, 2006
The Wisconsin Court of Appeals did not release any opinions today.
Friday, July 21, 2006
Big Brother would be proud
Appellate Opinions Released July 21, 2006
The Wisconsin Court of Appeals did not release any opinions today.
Thursday, July 20, 2006
Political Tidbits July 20, 2006
Wisconsin Supreme Court Upholds Hub Airline Tax Exemption
Supreme Court Overturns Two Year Old Decision on Med Mal/Wrongful Death Caps
Supreme Court’s First Amendment Protection is Prospective Only in High Profile Defamation Case
The Gubernatorial Candidates: A Comparison
Candidates Set for Fall Election
Bush stands alone in patriotic shoes from Allen-Edmonds
"It was a great source of excitement for everybody, a real morale booster and something everybody could rally behind, regardless of your politics," Birmingham [Mark Birmingham, chief operating officer] said. "We make shoes for the left and the right."
Appellate Opinions Released July 20, 2006
Bilda v. Milwaukee County (Milwaukee County complied with ch. 405, Wis. Stats., in adopting an amendment to the retirement system; change to retirement system did not constitute a "taking"; Circuit Court may strike an expert's affidavit that contains nothing but conclusions of law; no "notice" violation of unnamed class members' due process rights).
Wednesday, July 19, 2006
Appellate Opinions Released July 19, 2006
State v. Thums (State should have used second set of "truth-in-sentencing" statutes because not all of the elements of defendant's crime had been committed before the new statutes took effect) (UPDATE: the previous holding posted belonged to a different case; this is the correct holding).
Five Questions debate on Hamdan v. Rumsfeld
Professor John Baker, Jr. is a Dale E. Bennett Professor of Law at the Louisiana State University Law School.
Mr. Timothy Lynch is the Director of the Project on Criminal Justice at the Cato Institute.
Wisconsin judge chosen for 2006 Rehnquist Award
In addition to his work on tribal court relations, Brunner is noted for establishing restorative justice practices in the Barron County courts.
The award will be presented in a November 16, 2006 ceremony at the Great Hall of the United States Supreme Court (which coincides with the beginning of the Federalist Society's National Lawyers Convention, also in Washington, DC).
Tuesday, July 18, 2006
Sitting in a parked car is suspicious behavior
Like you really need to be an experienced police officer to assume that five young men sitting in a parked car for ten minutes are blowing a joint.
Appellate Opinions Released July 18, 2006
Abbott v. Marker (an illegal contract to compensate a non-lawyer for client referrals is not enforceable under any theory).
City of Prescott v. Holmgren (no, not that one) (City's declaratory judgment action regarding rights in an unrecorded highway not barred by 30-year recording requirement of Wis. Stat. sec. 893.33(2)).
State v. Terrell (definition of "correctional staff member").
TV series moves to Green Bay-Fox Valley region, Bar seeks lawyers who epitomize community service
The Bar seeks nominations of lawyers or groups of lawyers who demonstrate exemplary commitment to community or pro bono service to feature in a 30-second TV vignette to air in 14 counties in January 2007. Nominations are due Aug. 31.
Monday, July 17, 2006
Liberals who hurt own cause
No one knows if Barrett's nonsense will persuade any of his students. One thing, however, is clear: His course, and the university's lame defense of it, are a gift to all those who want to malign liberals as America-haters and to portray the academy as a hotbed of left-wing lunacy.
(via WisOpinion)
Our Runaway Court
Court protects political speech, but only in the future, not now
Update: On the other left hand, GarveyBlog on the same decision.
Saturday, July 15, 2006
Administrative Register effective July 15, 2006
The 2003−04 Wisconsin Statutes and Annotations are now available in bound volumes or on the WisLaw CD−ROMEmergency 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.
Friday, July 14, 2006
Appellate Opinions Released July 14, 2006
AKG Real Estate, LLC v. Kosterman. In an especially well-reasoned opinion, the Court ruled that a servient estate owner may not unilaterally move or terminate an express easement.
Dairyland Greyhound Park, Inc. v. Doyle (1993 constitutional amendments did not affect gaming compacts reached in 1992-92).
The Wisconsin Court of Appeals did not release any opinions today.
Thursday, July 13, 2006
Appellate Opinions Released July 13, 2006
Adams Outdoor Advertising, Ltd. v. City of Madison (assessment of personal property tax).
Butler v. Advanced Drainage Systems, Inc. (property owners' negligence and nuisance claims against firm retained by City to lower level of lake precluded by public policy).
Burbank Grease Services, LLC v. Sokolowski (trade secret statute does not preclude common law tort claims for misappropriation of confidential information that does not fall within scope of statute).
Lassa v. Rongstad (ordinarily (but not here), Circuit Courts should decide a motion to dismiss for failure to state a claim before sanctioning a party for refusing to comply with a discovery order).
The Wisconsin Court of Appeals released these opinions today, recommending the following for publication:
Rsidue, LLC v. Michaud (company that buys overdue consumer credit accounts for purposes of collection is not a creditor within the meaning of the Wisconsin Consumer Act, and so does not need to meet the specialized pleading requirements otherwise applicable under that act).
Glendenning's Limestone & Ready-Mix Co., Inc. v. Reimer (Faulty workmanship, in and of itself, does not constitute an "occurrence" within the meaning of the CGL policy at issue, but the facts alleged in this case disclosed at least one occurrence within the policy's scope).
Wednesday, July 12, 2006
Jury rejects claim decedent was armed with water bottle, not gun
A Tampa federal jury on April 17 rejected an estate's claim that a Pasco County deputy wrongfully killed a woman. Sharleen Jones, a 38-year-old jewelry shop owner, was shot and killed by Deputy Erica Fernandez in her store. Her lawyer argued that the officer mistook Jones' water bottle for a gun.
Open to Debate
He hopes to include in next spring's election a referendum to gauge Bar members' sentiments on the mandatory versus voluntary question. That referendum could occur in two ways. Either the Board of Governors would agree to hold the referendum, or members could petition the Board to do so.Levine feels there's a chance the Board of Governors may approve the idea. "Even those who feel Bar membership should be mandatory might be interested in finding out how the membership feels about it," he says.
Levine is adamant that, contrary to the assumptions of many, "I am not anti-Bar in any way," he says. "I think the Bar is a tremendous professional association. It's very high quality, and the staff is excellent. I just think it's wrong to force people to join any organization."
Appellate Decisions Released July 12, 2006
Jo-El Hanson v. American Family Mut. Ins. Co. (Personal injury plaintiff entitled to expenses for a surgery performed after her injury, even if it turns out the surgery was not necessary).
State v. Campbell (in prosecution in which an element consists of violating a prior judgment, defendant may collaterally attack the judgment as fraudulently procured if the fraud would have deprived the court of jurisdiction).
State v. Kelty (guilty plea waives subsequent challenge to multiplicity of charges; no express wavier of a defendant's double jeopardy rights is necessary in the plea colloquy).
State v. Young (circumstances under which a "seizure" occurs for purposes of suppression motion).
State v. Brown (circumstances under which defendant entitled to evidentiary hearing on motion to withdraw plea).
The Wisconsin Court of Appeals released these opinions today, but did not recommend either of them for publication.
Tuesday, July 11, 2006
MBA program targets citizens of modest means
DNR actions not arbitrary and capricious
The legislature and courts give such unbridled power to the DNR that nothing it does can be "arbitrary and capricious" in the legal sense of the term.
However, in the vernacular sense of the term, because there are no rules that it must use and apply in a consistent fashion, everything they do is inherently arbitrary and capricious.
Governor Doyle Announces Appointments
Governor Doyle announced the following appointments, as of July 1, 2006:
Among the 37,
Marc Marotta of Mequon was appointed to the Bradley Center Sports and Entertainment Corporation [2 pp. pdf] for a term to expire July 1, 2013.
And
Governor Doyle announced the following reappointments, as of July 1, 2006:
Among the 115,
Al Foeckler of Oak Creek was reappointed to the Judicial Council for a term to expire July 1, 2009....
Bill Vander Loop of Kaukauna was reappointed to the Wisconsin Judicial Commission for a term to expire August 1, 2009.
Appellate Decisions Released July 11, 2006
Jackson County v. Department of Nat. Resources (County cannot rescind deed through which it obtained ownership of property in an attempt to foist the property back onto the prior owner).
Wisconsin Mall Properties, LLC v. Younkers, Inc. (condemnation proceedings did not necessarily preclude a landlord's breach of contract claim against tenant).
Kenosha County Department of Human Services v. Jodie W. (A finding of parental unfitness may not be based solely on a condition impossible for the parent to fulfill).
Sonday v. Dave Kohel Agency, Inc. (real estate broker entitled to commission when property was acquired through condemnation by a government agency).
1325 North Van Buren, LLC v. T-3 Group Ltd. (a customized AIA contract to construct a 42-unit condominium complex calls for provision of both materials and services, but predominantly materials, so the economic loss doctrine applies to bar tort claims).
The Wisconsin Court of Appeals released these opinions today, but did not recommend any for publication.
Monday, July 10, 2006
Thought police rebuked by Seventh Circuit
Appellate Decisions Released July 10, 2006
Sunday, July 09, 2006
Burkesday?
Bertie Ahern, the Irish prime minister, has called Burke "one of our famous Irish writers." This ranks prominently in the annals of understatement. Having already established a day for that other famous author, Dublin could do worse than hold a "Burkesday." He was born on January 12 (in 1729) and he died on July 9 (in 1797). Either date would suffice. And the chief entertainment is obvious: dramatic readings of Reflections on the Revolution in France. Revelers could even burn effigies of Robespierre and Warren Hastings.
Mayor served 'the public welfare'
He held tight to his political principles: He was elected as a Socialist when it was possible to be one and still be in the mainstream in Milwaukee, and he stayed one to the end, when it was a movement on the political margin.Principle sometimes meant more than family to Zeidler. When [his brother] Carl ran for mayor [in 1940], Frank endorsed [Daniel] Hoan, who had been mayor since 1916, because Hoan was a Socialist and Carl was not.
Among his wide-ranging accomplishments was a 1979 version of Shakespeare's Hamlet "translated into modern verse". He kindly signed my copy at a June 18, 2002 presentation he and local historian John Gurda gave on the political history of Milwaukee.
Saturday, July 08, 2006
The Midwest Social Forum
Marc Becker reported on last year's meeting.
Two overarching themes defined many of the discussions at this year's RadFest/Midwest Social Forum. The first was grappling with what is often the unacknowledged problem of racism within the white left, and second is the ongoing discussion concerning the role of electoral politics in attempts to change the world.
Of Pills and Profits: In Defense of Big Pharma
Somehow or other, the average price of the pill has to end up high enough to pay off the up-front cost.No law of economics decrees that you can always accomplish this. Competition ordinarily pushes price down to marginal cost, paying no heed at all to costs that were sunk years ago. The problem is especially acute with drugs, where so much cost lies in the original chemical design. The pioneer also shoulders the considerable financial burden of persuading the FDA that the drug is safe and effective, while me-too applicants can, in principle, just photocopy what the pioneer has already filed. It is not impossible for the pioneering company to end up as the only player that fails to profit from its discovery.
Patents address this problem by granting a monopoly for a fixed term, during which the manufacturer can keep prices high or, better still, calibrate them to each buyer’s willingness to pay.
(Mr. Huber spoke to our chapter on March 6, 1992.)
Unrealists
They do not express any special sympathy for the Jewish predicament in the Middle East or in Europe, the Holocaust notwithstanding. On a personal level, as someone who experienced anti-Semitism firsthand in the Soviet Union, I would have welcomed a little more understanding on their part--but there is a great difference between not being particularly sympathetic to a person or group and expressing bigotry or hatred, such as anti-Semitism. Nothing in Mearsheimer and Walt's paper merits the latter accusation.
Friday, July 07, 2006
State v. Heath on Wis. Stat. 765.001(2)
The [Circuit] court appeared to believe that, because the legislature determined that "[m]arriage is the institution that is the foundation of the family and of society" and that its "stability is basic to morality and civilization and of vital interest to society and the state," the legislative intent was to recognize marriage of the parents as a necessary ingredient of healthy family life, an ingredient missing from Heath's family relationship. We conclude that this interpretation ofWis. Stat. § 765.001(2) is mistaken. The statute expressly refers only to the marital relationship. It does not mention or compare marriage to any other type of familial or intimate relationship. Moreover, we look at the context of the statute and note that it appears inWis. Stat. ch. 765 , which is entitled "Marriage." We presume that the legislature highlighted the importance of marriage to society in ch. 765 because marriage is the subject matter of that chapter. Thus, we do not read the legislature's recognition that marriage is an important and vital societal institution worthy of preservation and protection as a policy judgment that other intimate relationships are of lesser value or legitimacy.
The opinion is also available in pdf [21 pp.].
(via Dad29)
Wisconsin Supreme Court needs volunteers
Appellate Decisions Released July 7, 2006
Bartholomew v. Wisconsin Patients Compensation Fund. Claims for noneconomic damages in a wrongful death action are not aggregated for purposes of imposing a single, global cap on such damages. Rather, the cap is applied to each individual claim. Thus, in this case, the estate of Helen Bartholomew was entitled to the full amount of damages for predeath pain and suffering, and Robert Bartholomew, as surviving spouse, was entitled to the full cap amount for both (a) predeath loss of society and companionship, and (b) post death society and companionship.
Northwest Airlines, Inc. v. Wisconsin Department of Revenue. The ad valorem tax exemption for airlines operating a hub in Wisconsin does not violate the Equal Protection Clause of the United States Constitution, or the Uniformity Clause of the Wisconsin Constitution. The Court also held that because Congress authorized differential taxation of airlines by the several states, the courts may not entertain a negative Commerce Clause challenge to a state's exercise of that authority.
Huml v. Vlazny. The Court held that a settlement in a civil action has no effect on a restitution order resulting from criminal proceedings while the defendant is yet on probation. However, after the defendant completes probation and the restitution order is reduced to a civil judgment, a settlement of the civil suit will preclude enforcement of the civil judgment on the restitution order.
Teschendorf v. State Farm Ins. Companies (insurer may not reduce uninsured motorist policy limits by worker's compensation payments that are not made to, or on behalf of, the insured).
Buyatt v. Metropolitan Property and Cas. Ins. Co (interest on an overdue claim begins to accrue 30 days after claimant provides statutory notice (33 days when notice is mailed)).
Kontowicz v. American Std. Ins. Co. of Wisconsin (interest on an overdue claim begins to accrue 30 days after claimant provides statutory notice (33 days when notice is mailed)).
The Wisconsin Court of Appeals did not release any opinions today.
Appellate Decisions Released July 6, 2006
Hilton v. Department of Natural Resources. When an administrative agency adopts by rule an ALJ's decision, that decision is entitled to great weight deference on review.
All Star Rent A Car, Inc. v. Wisconsin Department of Transportation. When seeking review of a Division of Hearings and Appeals decision a petitioner must, in addition to naming and serving the adverse party (in this case the Department of Transportation), also name and serve the Division of Hearings and Appeals. The Supreme Court found the judicial review statute ambiguous, but held that the "Notice" section included with the DHA's written decision, which included this requirement, dispelled the ambiguity.
Racine Harley-Davidson, Inc. v. State of Wisconsin Division of Hearings and Appeals (assignment of territory to a dealer is part of the motor vehicle dealer agreement).
The Wisconsin Court of Appeals released these opinions on July 6, 2006, but did not recommend any for publication.
Thursday, July 06, 2006
EPA's New Source Review Enforcement Initiative: Legal and Policy Flaws
The last six years of the Environmental Protection Agency's ("EPA") coal-fired power plant New Source Review ("NSR") enforcement initiative have seen many twists and turns. These range from settlements with several large electric utilities, including Virginia Electric Power Co. and Ohio Edison Co., to having part of the Clean Air Act's adjudicatory provisions declared unconstitutional by the United States Court of Appeals for the Eleventh Circuit. However, the last month has seen two occurrences that could lead to an across-the-board resolution of the coal-fired power plant enforcement initiative at some point in the next year. An extensive study [35 pp. pdf] of this issue has been authored by David B. Rivkin, Jr., Lee A. Casey, and Mark W. DeLaquil.
"How safe and effective is the FDA?"
"The systematic error of the FDA is to overstate the risk of conspicuous losses and to overlook the major, if hidden, benefits forgone by unnamed persons when new therapies are kept off the market and older ones are removed at the first sign of trouble. The vestigial limbs from Thalidomide anyone can understand. The hidden spread of a liver tumor that some drug might have arrested if the FDA hadn't kept that drug off the market does not etch itself into the public consciousness in the same way."
UIM definition is impermissible reducing clause
Wednesday, July 05, 2006
The Blogofascistas
As Siegel explained, if bloggers don't like something you write, they may respond with posts -- or emails -- expressing that disagreement stridently, much as Hitler (or, for that matter, the obscure but equally brutal Croatian ustashe) did.
Appellate Decisions Released July 5, 2006
The Wisconsin Court of Appeals released these opinions today, recommending publication of the following:
Grubb Stake Properties, III, LLC v. Silver Bullet Management Corp. (sale of property subject to a lease in default constituted an acceptance of lessee's surrender of lease, so lessor could seek only unpaid rent, not diminution in value of property).
Paulhe v. Riley (child support payments).
Roberts v. Manitowoc County Board of Adjustment (standard of review of a regulatory board decision).
Thomas v. Schwarz (revocation of extended supervision).
State v. Moore (matters to be reviewed in camera during sentencing).
HSBC Realty Credit Corp. v. City of Glendale. The Court of Appeals concluded the Circuit Court does not have the authority to transfer a condemnation award from a Clerk of Court's account to a money market account where interest will accrue for the benefit of the parties entitled to the award.
Tuesday, July 04, 2006
Administrative Register effective July 1, 2006
New material (for insertion in the print edition)
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.
Rules published with this register and final regulatory flexibility analyses.
Sections affected by rule revisions and corrections.
Sections affected by revisor’s corrections not
published.
Executive orders.
Public notices.
Saturday, July 01, 2006
Governor Doyle Appoints William Pocan as Milwaukee County Judge
Pocan will fill the vacancy created by the retirement of Judge Michael P. Sullivan. Pocan will begin serving July 17, 2006 for a term to end July 31, 2007.