Appellate Opinions Released September 29, 2006

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

Appellate Opinions Released September 28, 2006

The Wisconsin Supreme Court did not release any opinions on September 28, 2006.

The Wisconsin Court of Appeals released these opinions on September 28, 2006, recommending the following for publication:

Helgeland v. Wisconsin Municipalities (denial of Legislature's and Wisconsin Municipalities' motion to intervene in case claiming a state statute violated constitutional equal protection rights by discriminating against same-sex couples in the state's provision of health and other benefits).


State v. Harmon ("accident" encompasses intentional acts within the meaning of Wisconsin's hit-and-run statute).


State v. Williams (ineffective assistance and other alleged irregularities on the way to conviction for Mr. Williams' spanking of his daughter).


Schmidt v. Northern States Power Co. (discovery of injury for purpose of calculating statute of limitations).


Wisconsin Central Farms, Inc. v. Agricultural Marketing, Inc. (double damages and attorney's fees under Wis. Ch. 100).

Appellate Opinions Released September 27, 2006

The Wisconsin Supreme Court did not release any opinions on September 27, 2006.

The Wisconsin Court of Appeals released these opinions on September 27, 2006, recommending the following for publication:

Motte v. Motte (stipulations regarding child support obligations are void as against public policy).


State v. Anthony D. (restitution order against a juvenile is limited in amount to what he is able to pay during his period of supervision).

New legislation, effective Oct. 1, changes time period for service of a responsive pleading

Our State Bar reminds us,

Act 442 [4 pp. pdf] 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.

Supreme Court accepts three new cases September 27, 2006

They are

State v. Thomas S. Mayo (challenge to conviction on ground of prosecutors remarks in closing argument on charging decision and disparaging defense counsel)

Steven J. Wickenhauser, et al. v. Jack Lehtinen, et al. (whether failure to counterclaim as defendants in earlier action barred later suit as plaintiffs for damages for fraud)

Wendy S. DeHart, et al. v. Wisc. Mut. Ins. Co., et al. 2006 WI APP 129 (uninsured motorists coverage where unidentified driver causes collisions without contact with any of the other vehicles)

The court also denied one certification and 54 petitions for review.

State Bar seeks candidates for officer and district governor in 2007 elections

Our State Bar's Inside the Bar newsletter reports that

The State Bar will elect a president-elect, a treasurer, and a Judicial Council representative in 2007. Members wishing to be considered for one of these offices should send a letter of interest to Jan Marks, State Bar of Wisconsin, P.O. Box 7158, Madison, WI 53707-7158, by Nov. 7.

Or

State Bar members also can make officer nominations by filing a petition signed by 100 active Bar members with the State Bar by Feb. 1, 2007.

To be considered for a seat on the Board of Governors, members must submit a petition signed by 10 active members in their district at the State Bar by March 1, 2007.

Ballots will be mailed April 13, 2007 for return by April 27.

Political Tidbits September 27, 2006

The latest report from The Hamilton Consulting Group.

Study Confirms Falling Economic Development Climate Based on "Litigation Atmosphere"

Governor Proposes $450 Million Public, Private Investment Strategy to Develop Renewable Energy

Requested Increases in Major GPR Programs Highlight Budget Demands

Green to Seek Supreme Court Review

Former State Representative Brandemuehl Has Died

Frivolous action statute is retroactive

Rule 802.05, which went into effect July 1, 2005, applies retroactively to all cases pending on that date, even if it is not practicable or just in some cases.

No state law against necrophilia???

Apparently, subsection (7) of the sexual assault statute, sec. 940.225 isn't clear and unambiguous enough: “This section applies whether a victim is dead or alive at the time of the sexual contact or sexual intercourse.”

Wilcox Reflects On Court As He Enters Final Months

A webcast of an interview by WisPolitics editor J. R. Ross of retiring Wisconsin Supreme Court Justice John Wilcox.

Government Lawyers News September 2006

The latest newsletter of our State Bar's Government Lawyers Division.

Appellate Opinions Released September 26, 2006

The Wisconsin Supreme Court did not release any opinions today.

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

Patrick Cudahy, Inc. v. LIRC (employee's use of alcohol or illegal drugs on or off the job in violation of a "last chance agreement" was misconduct justifying dismissal from employment).


Housing Authority v. Barrientos Designs (one co-defendant not entitled to equitable contribution from the other defendant in a breach of contract claim because damage caused by each defendant was independently ascertainable).


Szukalski v. Crompton Corp. (Applying the new understanding of the scope of Wisconsin's antitrust law, Chapter 133, the court concluded the plaintiffs failed to demonstrate either that (a) the actionable conduct had occurred in Wisconsin, or (b) the people of Wisconsin had been substantially affected by actionable conduct occurring outside of Wisconsin.)

CaseLaw Express (TM) gets a facelift; Free service notifies subscribers of recent court decisions

Our State Bar's Inside the Bar newsletter reports that

This free weekly email service keeps members abreast of recent cases that have been added to WisBar's case law archives. Recently redesigned, the new format is easier to scan, saving subscribers valuable time.

Would there be any readership for a weblog posting each day's opinions?

Green for Wisconsin v. State of Wisconsin Elections Board

Dane County Circuit Judge Richard G. Niess's September 25th decision [15 pp. pdf]

(via The Wheeler Report)

Uncovering Coherence in Compelled Subsidy of Speech Doctrine:

Johanns v. Livestock Marketing Ass'n, 125 S. Ct. 2055 (2005)

Mark Champoux in the Harvard Journal of Law & Public Policy Volume 29, Number 3 (Summer 2006) [11 pp. pdf]

September 25th Paul Clement "2006 Supreme Court Review"

For our chapter's 11th annual Constitution Day celebration, Paul Clement, Solicitor General of the United States, returns to review the last term of the United States Supreme Court at a luncheon at the Milwaukee Athletic Club. More information can be found on the invitation.

Sorry, your browser doesn't support the embedding of multimedia.
Update: In this video clip from the event, Mr. Clement summarizes Hamdan v. Rumsfeld. We've also posted a page of photos from the event.

Here is a list of our past chapter events.

Legal group looks at dropping bar exam

Avrum D. Lank reports in the business section of today's Milwaukee Journal Sentinel on President Steve Levine's proposals of bar exams for everybody or nobody and also for a referendum on eliminating mandatory membership in the State Bar.

Holding such a referendum would require the approval of the Bar's Board of Governors. Its executive committee has asked for a report on the possible financial impact of a voluntary bar before considering the matter, Levine said.

Appellate Opinions Released September 25, 2006

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

Changes on tap for WCCA (CCAP)

Changes take effect this week on Wisconsin Circuit Court Access (WCCA), more commonly know as CCAP.

Among the most visible changes will be the addition of executive summaries that will appear when accessing a criminal, traffic, forfeiture or a civil case filed with a restraining order.

And

Another key change involves the length of time that certain records remain accessible on the site.

The article summarizes the March 2006 report [42 pp. pdf] of the Wisconsin Circuit Court Access Oversight Committee.

Todd Richmond of the Associated Press reports, in the LaCrosse Tribune, State revamps criminal record Web site, with reader comments.

(via WisPolitics)

Political Tidbits September 22, 2006

The latest report from The Hamilton Consulting Group.

Legislative Committees Have Scheduled Hearings for the Upcoming Weeks

Wisconsin Elections

Two Legislative Candidates Seek Recount; Two Others Concede

Elections Board Action Remains in the Headlines

Appellate Opinions Released September 22, 2006

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

Appellate Opinions Released September 21, 2006

The Wisconsin Supreme Court did not release any opinions on September 21, 2006.

The Wisconsin Court of Appeals released these opinions on September 21, 2006, recommending the following for publication:

Olson v. Darlington Mutual Insurance Company (plaintiff could not be compelled to disclose to remaining defendants the amount of a confidential settlement agreement under a Pierringer release).


Kang v. Board of Regents of the University of Wisconsin System (Open Records plaintiff not entitled to attorney's fees because he did not "prevail in substantial part" in his mandamus action).

Appellate Opinions Released September 20, 2006

The Wisconsin Supreme Court did not release any opinions on September 20, 2006.

The Wisconsin Court of Appeals released these opinions on September 20, 2006, recommending publication of the following:

Wisconsin Power & Light Co. v. PSC (30-day limitation period for petitioning for judicial review of Public Service Commission ruling begins when Commission files decision).


Bockin v. Farmers Insurance Exchange (Insurer's offer of judgment was unenforceable, and so not entitled to costs when plaintiff failed to recover a more favorable judgment).


Trinity Petroleum, Inc. v. Scott Oil Company, Inc. (new "frivolous claim" statute applies retroactively to pending litigation because it is a procedural provision).


State v. Kueny (read-in charge was sufficient to support weapon forfeiture order).

Appellate Opinions Released September 19, 2006

The Wisconsin Supreme Court did not release any opinions on September 19, 2006.

The Wisconsin Court of Appeals released these opinions on September 19, 2006, recommending the following for publication:

Griffin v. The Mark Travel Corporation (service of process in Mexico under the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters).

Hamdan v. Dawicki (Circuit Court's change of jury answer on basis of insufficient evidence reversed).

Appellate Opinions Released September 18, 2006

Neither the Wisconsin Supreme Court nor the Wisconsin Court of Appeals released any opinions on September 18, 2006.

This will cause problems

Section 809.32 gives court-appointed appellate counsel three (and only three!) options if an appeal would be frivolous: close the case; withdraw so the client can proceed pro se or with retained counsel; or file a no-merit brief.

Nevertheless, the court of appeals held that the client has a right to refuse the no-merit option and to direct his attorney not to file a no-merit brief, and said it would violate the rules of professional responsibility if the attorney does so anyway.

Update: Today, Sept. 26, the court reissued the decision, adding a footnote stating that the current text of sec. 809.32 was not in effect in 1996, when the defendant's attorney moved to withdraw as counsel. So the court's decision apparently does not apply to attorneys currently representing indigent clients on appeal.

No jurisdiction to enforce fee agreement

A court improperly retained ancillary jurisdiction over a case to make sure the defendant's attorneys got paid.

Washington's Farewell Address

September 19, 1796

Is it time to overhaul state’s constitution?

Tom Sheehan in the LaCrosse Tribune on the upcoming conference at Marquette Law School on this topic.

Many of the “key issues” for the conference are outlined in terms of economic competitiveness. But Joseph “Jay” Ranney, a Madison-based constitutional lawyer, said he intends to prepare a paper on whether social policy belongs in the constitution. The discussion is particularly timely because voters will decide Nov. 7 if they want to ban same-sex marriages and civil unions in the constitution, Ranney said.

(via WisOpinion)

Defining the Court's Role as Faithful Agent in Statutory Interpretation:

Exxon Mobil Corp. v. Allapattah Services, Inc., 125 S. Ct. 2611 (2005)

Joel Schellhammer in the Harvard Journal of Law & Public Policy Volume 29, Number 3 (Summer 2006) [13 pp. pdf]

Oral argument week of September 17, 2006

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

Dist. IV, in Supreme Court Hearing Room, Capitol, 2d Floor, East Wing

09/20/06 10:00 a.m. Stephen G. Butcher, et al v. Ameritech Corp., et al, 2005AP2355

Appellate Opinions Released September 15, 2006

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

Administrative Register effective September 15, 2006

The Revisor of Statutes Bureau has issued the first half of No. 609 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.

September 28th Joseph Sobran at the Wisconsin Forum

Syndicated columnist Joseph Sobran will speak in "The Hijacking of Conservatism" at a Wisconsin Forum dinner on September 28, 2006 at the Milwaukee Athletic Club. See the Forum web site for details and registration information.

Update: Sobran Invitation Rescinded.

Sobran Out - Owen [Robinson] In

(via Sykes Writes)

"unreasonably and vexatiously" defined ... sort of

Subjective bad faith is not a prerequisite for sanctions under 28 U.S.C. 1927.

But we still have no definitive answer for what constitutes objective bad faith.

I don't know what these people are doing

Aug. 11, the Seventh Circuit holds X.

Aug. 18, different panel holds "not X."

Aug. 28, second panel withdraws its opinion. You assume its to avoid an intracircuit split of authority, don't you?

Nope. Sept. 7, the second opinion gets reissued. The Aug. 11 opinion is mentioned nowhere, but the court states in a footnote that it would be "ridiculous" if any court were to hold such a thing.

How'd you like to be a fly on the wall during an en banc discussion of this issue?

Appellate Opinions Released September 14, 2006

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

The Wisconsin Court of Appeals released this opinion today, but did not recommend it for publication.

Appellate Opinions Released September 13, 2006

The Wisconsin Supreme Court did not release any opinions or dispositional orders on September 13, 2006.

The Wisconsin Court of Appeals released these opinions on September 13, 2006, recommending these for publication:

Grumbeck v. Grumbeck (property division in divorce).

State v. Annina (person may be guilty of disorderly conduct for resisting police officer's forced entry into her home on an invalid search warrant).

Van Hout v. Endicott (writ of habeas corpus seeking reinstatement of his appellate rights denied because defendant knowingly and intelligently waived those rights).

Appellate Opinions Released September 12, 2006

The Wisconsin Supreme Court did not release any opinions or dispositional orders on September 12, 2006.

The Wisconsin Court of Appeals released these opinions on September 12, 2006, recommending these for publication:

Draskovich v. McCauley (separation agreement between Cannon & Dunphy and one of its attorneys, containing an allocation of fees and costs relating to cases pending when the attorney left, was not contrary to public policy; additionally, retainer contract between Cannon & Dunphy and client created valid attorney's fees lien).

Cuellar v. Ford Motor Company (Ford's upgrade program (to address fuel tank issues) violated the Wisconsin Motor Vehicle Adjustment Programs Act).

Markwardt v. Zurich American Insurance Company (same case as Draskovich).

Tucek v. State Farm Insurance (same case as Draskovich).

Rodriguez v. Allstate Insurance Company (same case as Draskovich).

October 16th Eugene Volokh to give Boden Lecture

Prof. Volokh will speak on "Law, Politics, and Slippery Slopes" for the Tenth Annual Boden Lecture, presented by Marquette University Law School. The lecture will take place October 16, 2006 4:30-5:30 p.m. in the Imperial Ballroom of the Pfister Hotel, 424 East Wisconsin Avenue, in Milwaukee.

Professor Volokh is an especially prominent commentator on the law. His established the popular Volokh Conspiracy blog, and his extensive scholarly work has appeared in the Harvard and Stanford law reviews, Supreme Court Review, Law and Contemporary Problems, among many other places ... . He is a former law clerk to Justice O'Connor and Judge Kozinski.

See the invitation for more information. There is no charge to attend.

Judges cite more blogs in rulings

Pamela A. MacLean reports in the National Law Journal on a survey by Ian Best.

Best has found 32 citations of legal blogs in 27 different cases dating back to 2004. Perhaps the most noted was by Justice John Paul Stevens in his dissent in an important sentencing decision, U.S. v. Booker, 543 U.S. 220 (2005).

(via WisBlawg)

Appellate Opinions Released September 11, 2006

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

Appellate Opinions Released September 8, 2006

The Wisconsin Supreme Court did not release any opinions on September 8, 2006.

The Wisconsin Court of Appeals did not release any opinions on September 8, 2006, but did release this errata sheet.

Appellate Opinions Released September 7, 2006

The Wisconsin Supreme Court did not release any opinions on September 7, 2006.

On September 7, 2006, the Wisconsin Court of Appeals released these opinions, recommending publication of the following:

Homeward Bound Services, Inc. v. Office of the Insurance Commissioner (Homeward Bound must have a certificate of authority before selling assisted living contracts because they are, statutorily, insurance policies).

Summary of the 2005-2006 Wisconsin Legislative Session

A report [59 pp. pdf] by the Legislative Reference Bureau

(via WisBlawg)

Law firm's intervention denied

There was no abuse of discretion in a trial court's decision not to allow the plaintiff's former law firm to intervene in the action to claim its share of the attorney fees.

Motions for plea withdrawal denied

A defendant's claim that "I didn't know I couldn't be convicted just for being there" does not permit withdrawal of his guilty plea.

Candidate's debate

Tomorrow is election day!

Federalism on ICE: State and Local Enforcement of Federal Immigration Law

Daniel Booth in the Harvard Journal of Law & Public Policy Volume 29, Number 3 (Summer 2006) [21 pp. pdf]

The consequences of Richard Weaver

Roger Kimball in The New Criterion

Political Tidbits September 8, 2006

The latest report from The Hamilton Consulting Group.

Primary Elections Coverage:

Lieutenant Governor

Secretary of State

Chief justice adapts to changing times

Ben Jones of Gannett Wisconsin Newspapers interviews Chief Justice Abrahamson in the Green Bay Press-Gazette.

(via WisPolitics)

State Financing of K-12 Education in Wisconsin

An overview [23 pp. pdf] prepared by the Legislative Fiscal Bureau.

(via The Wheeler Report)

Appellate Opinions Released September 6, 2006

The Wisconsin Supreme Court did not release any opinions today.

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

Town of Schoepke v. Rustick (road abandonment).

Heikkinen v. United Services Automobile Assn. (insurance coverage in personal injury action).

Decker v. Decker (application of contract terms to a simple fact pattern; difficult to discern need to publish).

State v. Bembenek. Yes, that Bembenek. In exchange for a "time-served" sentencing recommendation in relation to the reduced charge of second-degree murder, she agreed not to collaterally attack any evidence supporting her plea or to assert any claim of innocence. After sentencing in accord with the plea, she asked the State to DNA-test certain items she "believes will exonerate her." The Court of Appeals remedied this breach of the plea bargain by dismissing her appeal.

Supreme Court accepts two new cases

The cases are

Shannon E.T., et al v. Alicia M. V.M., et al 2006 WI APP 104 (paternity action by alleged father to then prosecute claim for stillborn child's wrongful death)

In re the estate of Harold E. Mennes: Univ. of WI Foundation v. M. Jenson, 2006AP703 (finality for appeal of probate order denying objection to codicil, or of order admitting will and codicil to probate, and necessity for written order in the latter case)

The court also denied review in 51 other cases.

Appellate Opinions Released September 5, 2006

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

Marquette Law Conference Asks: Is the Wisconsin Constitution Obsolete?

At least five ex-Wisconsin governors have committed to appear in a roundtable on the evening of Oct. 5 in Milwaukee to kick off the conference and set the stage for a full day of discussion on Oct. 6. On that Friday, national experts and Wisconsin scholars will explore key areas such as taxation, local government, education, and checks and balances.

The Making of a New Copyright Lockean

Lior Zemer in the Harvard Journal of Law & Public Policy, Volume 29, Number 3 (Summer 2006) [57 pp. pdf]

Administrative Register effective September 1, 2006

The Revisor of Statutes Bureau has issued the second half of No. 608 which includes

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.

Appellate opinions released August 31, 2006

Wisconsin Court of Appeals opinions, including for publication

State v. Andrae D. Howell (denial of plea withdrawal motion without evidentiary hearing)

State v. Timothy J. Goyette (denial of plea withdrawl motion when plea had been part of a "package plea agreement")

Appellate opinions released August 30, 2006

Wisconsin Court of Appeals opinions, none for publication