State Court Docket Watch July 2007

In an effort to increase dialogue about state court jurisprudence, the Federalist Society presents the latest issue [20 pp. pdf] of State Court Docket Watch. This issue features articles on the state courts of New York, Maine, West Virginia, Washington, South Carolina, Missouri, and California.

New York and Maine High Courts Review State Financing of Schools, by Amber Taylor

West Virginia Supreme Court of Appeals Finds Significant Economic Presence Test Better Indicator for Nexus than Physical Presence Requirement, by Dean A. Heyl

Washington Supreme Court Upholds Talk Show Hosts' Right to Free Speech, by Andy Cook

South Carolina Supreme Court Creates New Duty of Medical Care Providers to Non-Patients

Missouri High Court Finds Constitutional Right to Collective Bargaining for Public Sector Employees, by Jonathan Bunch

New York Court of Appeals Rules on Contraception Case, by Gerard Bradley

California Supreme Court to Consider Partisan Government Campaigning

Administrative decisions July 2007

LIRC Equal Rights Decisions

LIRC Unemployment Insurance Decisions

LIRC Workers Compensation Decisions

Appellate Opinions Released July 31, 2007

The Wisconsin Supreme Court did not release any opinions today.

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

Blunt v. Medtronic, Inc. (common law tort claim arising out of allegedly defective implantable defibrillator pre-empted by federal law because the device had gone through the FDA's pre-market approval process).

Administrative Register effective August 1, 2007

The Revisor of Statutes Bureau has issued the second half of Administrative Register No. 619 [55 pp. pdf].

A Juror's Notes: Testifying in the stop-snitchin' era

Madison Smartt Bell in Oxford American on

the case of Maryland v. Crudup, in which the defendant, William Floyd Crudup, was accused of having shot two policemen during an unsuccessful narcotics arrest.

(via Arts & Letters Daily)

State Bar Urges Budget Conferees to Make Access to Justice a Wisconsin Priority

Our State Bar issued this press release with a statement by President Tom Basting supporting $1 million in the 2007-2009 state budget for susidizing legal services for poor people.

2007-09 Budget Comparisons

July 18, 2007 memorandum [3 pp. pdf] by the Legislative Fiscal Bureau comparing

budget recommendations of the Governor, Joint Committee on Finance, Senate, and Assembly.

(via WisBlawg)

Seventeen apply for federal judgeship

Our State Bar posted this press release [pdf] on the applicants for the United States District Court for the Eastern District of Wisconsin seat opening when Judge Randa takes senior status:

William W. Brash III; Michael B. Brennan; Nathaniel Cade Jr.; Gwendolyn G. Connolly; Mac Davis; Timothy G. Dugan; Christopher Foley; Gordon P. Giampietro; Daniel J. Graber; Elsa C. Lamelas; Paul V. Malloy; Kevin E. Martens; Gerald P. Ptacek; Ralph M. Ramirez; Paul F. Reilly; James L. Santelle; Maxine A. White.

In re discretionary transfer of civil cases to tribal court

Petition [10 pp. pdf]

filed 07/24/07 by A. John Voelker, Director of State Courts. [07-11]

This Week in Liberal Judicial Activism: Week of July 30, 2007

Ed Whelan at Bench Memos.

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

Appellate Opinions Released July 26, 2007

The Wisconsin Supreme Court did not release any opinions.

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

Cambier v. Integrity Mut. Ins. Co. (for purpose of insurance coverage, insured did not occupy a cabin primarily as a dwelling because he was using the cabin primarily as rental property).

Block v. Waupaca Co. Bd. of Zoning Adjustment (certiorari review of a board of zoning appeal decision).

State v. Radke (Wis. Stat. sec. 940.225(7) does not criminalize necrophilia).

State v. Nicholas Owen Grunke (same as State v. Radke).

State v. Alexander Caleb Grunke (same as State v. Radke).

Morrison v. Rankin (directed verdict against physician and insurer was appropriate sanction for spoliation of evidence).

Unintended Irony

Trust me, you can't write parody as funny as this NYTimes op-ed.

Appellate Opinions Released July 25, 2007

The Wisconsin Supreme Court did not release any opinions today.

The Wisconsin Court of Appeals released the following opinion, and recommended it for publication:

Western Wisconsin Water, Inc. v. Quality Beverages of Wisconsin, Inc. (sufficiency of evidence to support a jury verdict).

Appellate Opinions Released July 24, 2007

The Wisconsin Supreme Court did not release any opinions today.

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

Estate of Dale Otto v. Physicians Ins. Co. of Wisconsin, Inc. (plaintiff need not establish prejudice to obtain default judgment).

Petition for Revision of Supreme Court Rule 10.04

Petition [6 pp. pdf] for Revision of Supreme Court Rule 10.04 filed 07/18/07 by Thomas Basting, Sr., President of the State Bar of Wisconsin [07-10]

Rationale:

"This petition, in particular Attachment #1, sets forth the Board of Governors requested amendment to SCR 10.04 to limit the President and Chairperson to one term each."

This requested rule change is related to bylaw changes.

"Candidate [Steven] Levine’s election was viewed by many in the Out-State district as a disenfranchisement and a great deal of concern was raised about the viability of future Out-State candidates if they would have to face self-nominated candidates from Milwaukee or Madison.

"The Election Bylaws Committee appointed by President Guerin at the direction of the Board of Governors addressed the issue of how to amend the Supreme Court Rules and the State Bar bylaws to ensure that Out-State candidates would have a fair chance to serve as presidents of the State Bar of Wisconsin in the future."

Stoughton Trailers, Inc. v. Labor and Industry Review Commission, 2007 WI 105

This case was among those released July 17, 2007. Justice Louis Butler, in the majority opinion [58 pp. pdf], says in footnote 3

The dissent chides this court for "abdicat[ing] its role as the state's ultimate policy making court," and later for "adding insult to injury" by deciding this case on the grounds that are presented by the facts. Dissent, ¶¶ 76, 78. In essence, the dissent faults this court for exercising judicial restraint.

Appellate Opinions Released July 19, 2007

The Wisconsin Supreme Court did not release any opinions.

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

Chippewa County Dept. of Human Services v. Bush (the Department may not seek financial support from a nursing home resident's spouse).

Appellate Opinions Released July 18, 2007

The Wisconsin Supreme Court released these opinions:

State v. Johnson (sentence credit for an individual held as a juvenile pending charges as an adult).

Szleszinski v. LIRC (procedure in filing a "Fair Employment Act" claim when an interstate truck driver's medical qualification is at issue).

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

State v. Roou (Court has discretion to fashion remedy when defendant's plea was defective as to only one of two counts upon which he was convicted).

Appellate Opinions Released July 17, 2007

The Wisconsin Supreme Court released these opinions:

City of Milwaukee v. Washington (statute authorizes court to confine to jail a person with noninfectious tuberculosis, but who is at a high risk of developing infectious tuberculosis, when she fails to comply with a treatment regimen).

Milwaukee Regional Medical Center v. City of Wauwatosa (land leased by Milwaukee Regional Medical Center from Milwaukee County for a day care facility is not tax-exempt because the MRMC, not the County, is the beneficial owner).

Frisch v. Henrichs (remedial contempt power).

Castenada v. Welch (Milwaukee Fire and Police Commission rule governing filing of complaints against members of those departments was ultra vires).

Stoughton Trailers, Inc. v. LIRC (company failed to abide by its own policy in terminating an employee suffering from recurring migraines, thereby justifying LIRC conclusion that employee was terminated for his disability).

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

Hipp v. Circuit Court for Milwaukee County (persons filing John Doe proceedings may compel witnesses to appear on their behalf).

State v. Wood (interplay between motion for sentence modification and motion to vacate sentence and re-sentence).

No new claims after remand

When an appellate court affirms a dismissal of a complaint, the plaintiff can't add new claims, unless the court expressly says it can.

"Costs" includes "reasonable costs"

A defrauded buyer of an automobile can recover "reasonable" litigation expenses, not just statutory costs.

This Week in Liberal Judicial Activism: Week of July 23, 2007

Ed Whelan at Bench Memos.

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

Conference committees 101

Capitol podcast July 17, 2007 from the Milwaukee Journal Sentinel

(via WisBlawg)

Labor and Employment Law Briefing

Video or audio of this July 17, 2007 Labor and Employment Practice Group event.

Panelists include:

Hon. Ronald S. Cooper, General Counsel, Equal Employment Opportunity Commission
Hon. Ronald E. Meisburg, General Counsel, National Labor Relations Board
Jonathan L. Snare, Acting Solicitor, United States Department of Labor
Hon. Eugene Scalia, former Solicitor, United States Department of Labor -- Moderator

Environmental Law News July 2007

Our State Bar's Environmental Law Section newsletter includes three articles on the companion cases Rapanos v. United States, and Carabell v. United States Army Corps of Engineers, 126 S.Ct. 2208, 62 ERC 1481 (2006).

Engage Volume 8, Issue 3, June 2007

This issue [164 pp. pdf] is the third in our twenty-fifth-anniversary year, which began at the November 2006 Annual Lawyers Convention. Transcripts from that event appeared on our website in May as the second issue of the current volume. February's edition contained a great number of articles dealing with the "war on terror." A more common theme in this edition is proper jurisdiction, or, questions of federalism, national sovereignty, and separation of powers. Considering the Federalist Society's mission statement, this seems altogether fitting.

Bills enacted July 17, 2007, Acts 16-18

Act 16 Annual or consecutive month permits for vehicles or combinations of vehicles transporting loads near the Wisconsin-Michigan border.

Act 17 Calculation of operating revenues of certain energy utilities for the purpose of determining spending on certain energy efficiency and renewable resource programs.

Act 18 Time-share licenses.

July 19, 2007 Gregory Katsas, "Fighting A War: The Administration's Approach to the Detention, Interrogation, and Trial of Enemy Combatants"

Gregory Katsas, Principal Deputy Associate Attorney General of the United States, is schedulte speak on this topic at a Noon luncheon Thursday, July 19th at the Milwaukee Athletic Club, presented by the Milwaukee Lawyers Chapter and Marquette Law Student Chapter.

Wigs off as Britain ends courtroom tradition

Reuters reported

Britain's lawyers and judges are to break with centuries-old tradition and cease wearing white horse-hair wigs in non-criminal cases, the head of the country's judiciary announced on Thursday [July 12th]. ...

Wing collars and bands -- white cotton strips worn round the neck -- can also be dispensed with in such cases according to the reforms, while judges will need just one gown in future instead of a variety of colorful outfits currently required.

The wigs will still be worn in criminal courts. ...

(via WisBlawg)

A modest proposal

It may be too much to ask that Congress repeal the Sherman Act as an outdated relic of misguided statist philosophy. Or that the Supreme Court would hold it an unconstititutional denial of liberty of contract.

But Congress could at least amend it to preempt states from enforcing their "Little Sherman Acts" in ways that are even more restrictive of contract rights than the Big Sherman Act.

And could anyone give me one reason why I live in this state, or why anybody does business in this state at all?

Link is to recent Wisconsin Supreme Court antitrust decision telling business to just go away.

Orin Kerr on 'Brendlin v. California'

Audio of this July 12, 2007 SCOTUScast

On June 18, 2007, the U.S. Supreme Court decided the case of Brendlin v. California. The Court was asked to consider whether a passenger is "seized" when an officer pulls over the car for a traffic stop. In this episode of SCOTUScast, Professor Orin Kerr, a law professor at George Washington University Law School and a regular contributor to the Volokh Conspiracy blog offers his analysis of the recent decision.

Assembly budget would cut $19 million from circuit courts

Jack Zemlicka explains the calculation in the Wisconsin Law Journal.

The Assembly budget would maintain the current spending levels for the circuit courts and eliminate increases of more than $9.1 million in 2007-08 and $10 million in 2008-09.

Political Tidbits, July 18, 2007

The latest report

Budget Work Will Continue in Conference Committee

Recent Wisconsin Supreme Court Cases

Hamiltonians in the News

from The Hamilton Consulting Group.

Oral argument July 19, 2007

The Wisconsin Court of Appeals [2 pp. pdf] has scheduled oral argument in the following.

07/19/07 9:30 a.m. at Dist. II, 2727 North Grandview Blvd., Waukesha, David Seifert v. School District of Sheboygan Falls 2006AP2071

Shakespeare and the Art of Judging

Video or audio of this event.

On Tuesday, June 12, 2007, the Boston Lawyers Chapter of the Federalist Society presented a discussion on the art and practice of judging framed by a staged reading of Shakespeare's Measure for Measure. The event was the seventh in a series, entitled Shakespeare and the Law, produced by the Boston Lawyers Chapter in conjunction with the Commonwealth Shakespeare Company. The event was directed by CSC's Artistic Director Steven Maler and produced by McCarter & English partner Daniel J. Kelly. The Massachusetts Bar Association served as a co-sponsor of the event.

Frivolity

Section 802.05, Wisconsin's new rule governing frivolous actions, is retroactive to cases pending on its effective date, July 1, 2005, but only if its application would not be unduly burdensome to the party seeking sanctions.

Takin' care of business

Cities can take business property, regardless of whether or not they can provide a replacement property.

Oral argument July 18, 2007

The Wisconsin Court of Appeals [2 pp. pdf] has scheduled oral argument in the following.

07/18/07 9:30 a.m. at Dist. II, 2727 North Grandview Blvd., Waukesha, State v. Francisco Vara 2006AP1970-CR

State Bar of Wisconsin Statement Regarding the Assembly Budget Provision to Phase Out State Funding of the University of Wisconsin Law School

Our State Bar, or its President Tom Basting, opposes [doc] this.

2007 Annual Supreme Court Round Up

Your choice of video or just audio of this July 13, 2007 event at the National Press Club in Washington, DC, featuring

Mr. Douglas R. Cox, Gibson, Dunn & Crutcher
Hon. Theodore B. Olson, Gibson, Dunn, & Crutcher and former U.S. Solicitor General

Administrative Register effective July 15, 2007

[We're back after a few days of a major outage at our ISP.]

The Revisor of Statutes Bureau has issued the first half of Administrative Register No. 619 [32 pp. pdf].

This Week in Liberal Judicial Activism: Week of July 16, 2007

Ed Whelan at Bench Memos.

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

Appellate Opinions Released July 13, 2007

The Wisconsin Supreme Court released these opinions:

State v. Schweda (constitutional right to a jury trial does not attach to an action seeking forfeitures for violations of waste disposal regulations).

Meyers v. Bayer AG (antitrust claim may proceed under Wisconsin's antitrust statute when the combination or conspiracy was formed out-of-state but substantially affects the people of Wisconsin).

The Wisconsin Court of Appeals neither released any opinions nor certified any appeals.

Gary Lawson on 'Wilkie v. Robbins'

On June 25, 2007, the U.S. Supreme Court delivered its decision on the Wilkie v. Robbins case. This case involved the regulatory responsibilities of the Bureau of Land Management in attempting to obtain a reciprocal right-of-way across private property intermingled with public lands. In this episode of SCOTUScast [audio], Professor Gary Lawson of Boston University Law School offers his analysis of the recent decision.

Appellate Opinions Released July 12, 2007

The Wisconsin Supreme Court released the following opinions today:

Kolupar v. Wilde Pontiac Cadillac, Inc. (recoverable costs under Wis. Stat. sec 218.0163(2) includes all reasonable costs, not just taxable costs within the meaning of Wis. Stat. sec. 814.04).

State v. Jenkins ("fair and just reason" for withdrawing guilty plea prior to sentencing).

Tietsworth v. Harley-Davidson, Inc. (absent a clear directive from an appellate court, a circuit court does not have authority to reopen a case and allow an amended complaint after it has already been dismissed on the merits and affirmed on appeal).

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

Carolina Builders Corp. v. Dietzman (junior lienholder need not file a lis pendens to maintain lien rights when senior lienholder has already filed a lis pendens).

United Cooperative v. Frontier FS Cooperative (owned property exclusion in context of coverage for environmental contamination).

Appellate Opinions Released July 11, 2007

The Wisconsin Supreme Court released these opinions:

Doe v. Archdiocese of Milwaukee (negligent supervision claims arising out of sexual molestation allegations barred by statute of limitations; however, intentional misrepresentation claims based on the archdiocese's knowledge of priests' prior sexual molestation are not barred, and the discovery rule applies to toll the statute of limitations).

HSBC Realty Credit Corp. v. City of Glendale (courts have statutory authority to transfer a condemnation award from a clerk of court's account to an interest-bearing account where it will earn interest for the benefit of the award's owners pendente lite)

City of Janesville v. CC Midwest, Inc. (City met statutory obligation to make available to condemnee comparable replacement property/business).

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

International Flavors & Fragrances, Inc. v. Valley Forge Ins. Co. (timeliness of notice of claims to insurance company).

We stay open late

Locking up the courthouse at the end of the business day violates the defendant's right to a public trial, if his trial continues after closing time.

Sentencing guidelines (state not federal)

Effective Sept. 1, trial courts have to state on the record that they have considered any applicable sentencing guidelines.

Timothy Sandefur on 'Wilkie v. Robbins'

On June 25, 2007, the U.S. Supreme Court delivered its decision on the Wilkie v. Robbins case. This case involved the regulatory responsibilities of the Bureau of Land Management in attempting to obtain a reciprocal right-of-way across private property intermingled with public lands. In this episode of SCOTUScast [audio], Attorney Timothy Sandefur of the Pacific Legal Foundation offers his analysis of the recent decision.

Political Tidbits, July 11, 2007

The latest report

Budget update

from The Hamilton Consulting Group.

Six retired judges prepare for service on new Government Accountability Board

Six retired Wisconsin judges will serve the state in a new capacity as the first members of the Government Accountability Board (GAB), which will replace the state Elections Board and Ethics Board. The Wisconsin Legislature has now officially confirmed all six to the new board.

They are: Judge Michael W. Brennan, Chief Judge Tom Cane, Judge David G. Deininger, Judge William Eich, Judge James B. Mohr, and Judge Gerald C. Nichol.

Chapter Officers

Rebecca Bradley is our new President
Daniel Kelly is our new Vice-president
Jonathan Koenig is our new Secretary and Treasurer

Terrence Berres continues as Webmaster

Thanks to Gordon P. Giampietro and Daniel W. Gentges for their hard work.

Chapter Board of Directors

Katherine Longley and Luke Steffel have become directors, joining:
Donald A. Daugherty, Jr., and David W. Simon, Co-Chairmen;
Larry J. Bonney; Karl R. Dahlen; Kenneth A. Dortzbach; G. Michael Halfenger; Michael E. Hartmann; Thomas R. Hrdlick; Daniel Kelly; Jonathan H. Koenig; Paul D. Langer; Tim Lopez; Stephen D. Rogers; Theodore R. Rolfs; and David J. Tolan

Marquette Federalists

The Marquette University Law School Student Chapter has a new president, Daniel Suhr, and a new web site at mufederalists.com.

John Eastman on 'Hein v. Freedom From Religion Foundation'

On June 25, 2007, the U.S. Supreme Court delivered its decision on the Hein v. Freedom From Religion Foundation case. The case asked whether or not tax-payers have standing under Article III of the Constitution to challenge on Establishment grounds the actions of Executive Branch officials pursuant to an Executive order. In this episode of SCOTUScast [audio], Dean John Eastman of Chapman University School of Law offers his analysis on the recent decision in response to Professor Steven Calabresi's analysis in another episode of SCOTUScast.

Appellate Opinions Released July 10, 2007

The Wisconsin Supreme Court released these opinions today:

DeHart v. Wisconsin Mutual Ins. Co. (uninsured motorist coverage not implicated in a "hit-and-run" accident in which insured's vehicle was not actually struck, but spun out of control in an effort to avoid the offending unidentified driver who had struck a different vehicle in front of the insured).

Lornson v. Siddiqui (claimant's cause of action in a wrongful death case does not survive the death of the claimant).

Marotz v. Hallman (reducing clauses in underinsured motorist coverage).

State Farm Mutual Automobile Ins. Co. v. Bailey (same as Marotz v. Hallman).

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

Rosario v. Acuity (structural defects v. unsafe conditions associated with the structure of a building).

Hearing set on continuing education for Wisconsin Judiciary

Public Hearing re In the matter of the Amendment of Supreme Court Rule 32.09 regarding continuing education for Wisconsin Judiciary - Friday, October 5, 2007, 9:30 a.m., Supreme Court Room, State Capitol, Madison. [07-05]

Hearing set on amending Wis. Stat. 809.19 (Rule on Briefs and Appendix)

Public Hearing re In the matter of the Proposed Amendment to Wis. Stat. Rule 809.19 (Briefs and Appendix) - Friday, October 5, 2007, 9:30 a.m., Supreme Court Room, State Capitol, Madison. [07-03]

Donald J. Simon on 'Federal Election Commission v. Wisconsin Right to Life, Inc.'

On June 25, 2007, the U.S. Supreme Court delivered its decision on the Federal Election Commission v. Wisconsin Right to Life, Inc. case. The case involved a constitutional challenge to the federal prohibition on the use of corporate treasury funds to finance "electioneering communications" under the Bipartisan Campaign Reform Act. Attorney Donald J. Simon of Sonosky, Chambers, Sachse, Endreson & Perry, LLP, offers his analysis on the recent decision. James Bopp, Jr., of Wisconsin Right to Life, provides his own analysis in another edition of SCOTUScast. [audio]

Gail Heriot on 'Parents Involved in Community Schools v. Seattle School District No. 1' and 'Meredith v. Jefferson County'

On June 28, 2007, the U.S. Supreme Court delivered its decision on Parents Involved in Community Schools v. Seattle School District No. 1 and Meredith v. Jefferson County cases. The Court was asked to consider the school districts' use of race in assigning students to schools. In this episode of SCOTUScast [audio], Professor Gail Heriot of the University of San Diego School of Law offers her thoughts on the recent decision.

This Week in Liberal Judicial Activism: Week of July 9, 2007

Ed Whelan at Bench Memos.

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

Appellate Opinions Released July 6, 2007

The Wisconsin Supreme Court released the following opinions today:

Trinity Petroleum, Inc. v. Scott Oil Company, Inc. (retroactivity of new "frivolous action" rule).

Rouse v. Theda Clark Medical Center, Inc. (The University of Wisconsin Hospital & Clinics Authority is a political corporation, and so an action may not be commenced against it without first complying with the notice of claim requirement of Wis. Stat. sec. 893.80).

The Wisconsin Court of Appeals neither released any opinions nor certified any appeals today.

Federal Nominating Commission seeks applicants for federal judgeship

Our State Bar reported,

Wisconsin's Federal Nominating Commission, a bipartisan body charged with making recommendations for vacancies in federal judgeships and U.S. attorney positions, is accepting applications [pdf] for a vacancy on the United States District Court for the Eastern District of Wisconsin. The opening results from the pending retirement of United States District Judge Rudolph Randa.

Applications are due July 24, 2007. Here are

The Commission's application [13 pp. doc] and instructions [2 pp. pdf] ...

William Otis on 'Panetti v. Quarterman'

On June 28, 2007, the U.S. Supreme Court delivered its decision on the Panetti v. Quaterman case. The court was asked to consider the standard for when a person is too crazy to execute under the 8th and 14th Amendments. In this episode of SCOTUScast [audio], William Otis, former Special White House Counsel, provides an analysis on the recent decision.

Bill enacted July 2, 2007, Act 15

Act 15 Fraud in advertising of musical performances and providing a penalty.

Nonresidents meet division goal; more members vote in 2007

Our State Bar's Nonresident Lawyers Division met one of its strategic goals when members voting for State Bar officers increased to nine per cent.

Appellate Opinions Released July 5, 2007

The Wisconsin Supreme Court did not release any opinions today.

The Wisconsin Court of Appeals released these opinions today, but did not recommend any for publication