Oral argument November 1, 2007

The Wisconsin Supreme Court has scheduled oral argument in the following in Hudson.

9:30 a.m. State v. William Troy Ford (06AP806-CR)

11:00 a.m. State v. Donald W. Jorgensen (06AP1847-CR)

2:00 p.m. State v. Ramon Lopez Arias (06AP974-CR)

Synopses are available at the link above. Live audio of arguments is available, and WisconsinEye has live video.

My Grandfather's Son

Coverage of Justice Thomas' book tour in Chicago last week.

I don't get it

For some reason, if you file one suppression motion, that does not waive other suppression motions that could have been made; those are only forfeited. But if you object to one aspect of a presentence report, that does waive other objections that could have been made.

Oral argument October 31, 2007

The Wisconsin Supreme Court has scheduled oral argument in the following in Hudson.

9:30 a.m. State v. Douglas J. Plude (05AP2311-CR)

11:00 a.m. State v. Leonard J. Quintana (06AP499-CR)

2:00 p.m. Bruce Muller v. Society Insurance, et al. (06AP976)

Synopses are available at the link above. Live audio of arguments are available. WisconsinEye has live video and audio of arguments.

Oral Argument October 30, 2007

The Wisconsin Court of Appeals [pdf] has scheduled oral argument in the following At Dist. II, 2727 North Grandview Blvd., Waukesha.

9:30 a.m. Johnson v. Burmaster (2006AP1380)

This Week in Liberal Judicial Activism: Week of October 29, 2007

Ed Whelan at Bench Memos.

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

Appellate Opinions Released October 25, 2007

The Wisconsin Supreme Court did not release any opinions.

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

State v. Ebersold (sexually explicit electronic messages sent in an Internet chat room are "verbal communications" within the meaning of Wis. Stat. sec. 948.11(2)(am)).

Appellate Opinions Released October 24, 2007

The Wisconsin Supreme Court did not release any opinions.

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

State v. Hubbard (new trial ordered in injury by intoxicated use of a vehicle because the judge told the jury to use the ordinary meaning of "materially impaired" instead of the definition contained in a prior Wisconsin Supreme Court opinion).

Malefactors of Megawealth

Review by David M. Kennedy in last Sunday's New York Times of The Conscience of a Liberal by Paul Krugman.

as for national security — well, as Krugman sees things, it was not Democratic bungling in the Iranian hostage crisis or humiliation in Somalia or feeble responses to the first bombing attack on the World Trade Center or the assault on the U.S.S. Cole, but the runaway popularity of the Rambo films (I’m not making this up) that hoodwinked the public into believing that the party of Carter and Clinton (not to mention McGovern and Kucinich) might not be the most steadfast guardian of the Republic’s safety.

Rules Hearings and Oral Argument October 29, 2007

The Wisconsin Supreme Court has scheduled a hearing on the following at 9:45 a.m.

07-01 [pdf] In the matter of: The petition of the State Bar of Wisconsin proposing revisions to SCR 11.06 concerning group and prepaid legal services plans, filed on 02/02/07 by Steve Levine, President, State Bar of Wisconsin

07-02 [pdf] In the Matter of Amendment of SCR 10.05(1) Nonresident Lawyer Representation on the State Bar of Wisconsin Board of Governors, filed on 02/05/07 by Steve Levine, President, State Bar of Wisconsin


The Wisconsin Court of Appeals [pdf] has scheduled oral argument in the following at Dist. III 2100 Stewart Avenue, Suite 310 Wausau.

1:30 p.m. Judith Anderson v. Jacqueline Quinn, 2006AP2462

Bill enacted October 26, 2007, Act 20

Act 20 [674 pp. pdf] State finances and appropriations, constituting the executive budget act of the 2007 legislature. (see LFB Summary)

Update: Governors' Veto Message (vetoed in part)

Defending the indefensible

Over at ACS, former AG Peg Lautenschlager defends abuse of power by her and other state attorneys general around the country.

The Role of Disenting Opinions

The 20th Annual Leo and Berry Eizenstat Memorial Lecture, October 21, 2007, by Ruth Bader Ginsburg, Associate Justice, Supreme Court of the United States

I turn now to another genre of dissent, one aiming to attract immediate public attention and to propel legislative change. My example is the second dissent [Ledbetter v. Goodyear Tire & Rubber Company, Inc. 47 pp. pdf] I read from the bench last term. ...

Several members of Congress responded within days after the Court's decision issued. A corrective measure passed the House on July 31, 2007. Senator Kennedy introduced a parallel bill, with 21 co-sponsors. The response was just what I contemplated when I wrote: "The ball is in Congress' court . . . . to correct [the Supreme] Court's parsimonious reading of Title VII." But the fate of the proposed legislation has been clouded. On July 27, the Administration announced that if the measure "were presented to the President, his senior advisors would recommend that he veto the bill."

(via Orin Kerr at The Volokh Conspiracy)

Supreme Court accepts seven new cases

Hornback v. Archdiocese of Milwaukee and Diocese of Madison (2006AP291)

C. Coakley Relocation Systems v. City of Milwaukee (2006AP2292), 2007 WI APP 209

Novell v. Migliaccio (2005AP2852)

Rao v. WMA Securities, Inc., (2006AP813)

Finder v. American Heartland Insurance Co. (2006AP918)

State v. Keyes (2004AP1104-CR and 2004AP1105-CR), 2007 WI APP 163

No kidding

Multi-factor tests are “redundant, incomplete, and unclear.”

Market rates control attorney fees in class actions

A district judge erred in looking to the attorney's degree of success, rather than the market value of the attorney's services, when awarding fees in a class action lawsuit.

Pigment makers not liable to lead paint plaintiffs

Manufacturers of lead pigment can't be the latest deep pocket for lead paint plaintiffs under court of appeals holding.

Scalia opines on faith and justice

David O'Reilly reported in the Philadelphia Inquirer on Justice Antonin Scalia's remarks last week at Villanova University on the topic "the role of Catholic faith in the work of a judge".

Via Robert T. Miller's post on Antonin Scalia: Not a Catholic (Judge).

Stephen Bainbridge on 'Stoneridge Investment v. Scientific Atlanta'

October 24, 2007 SCOTUScast audio by Stephen Bainbridge, William D. Warren Professor of Law, UCLA Law School, (and blogger)

On October 9th, 2007, the Supreme Court heard oral arguments in the 'Stoneridge Investment v. Scientific Atlanta' case. In a securities law case of paramount importance, the Court is asked to consider under what (if any) circumstances private investors can sue actors – whether accountants, lawyers, financial advisors or other businesses – that allegedly participate in a scheme to violate Section 10(b) of the Securities Exchange Act of 1934.

'State v. Cooke': A Step Toward Judicial Acknowledgement of a "CSI Effect"

by Stephen P. Laitinen and David Classen, "This Week's Feature" in DRI's The Voice, October 24, 2007

See Wisconsin's Lethargic Response to "The CSI Effect" [7 pp. pdf] by Brian Hayes, Wisconsin Interest, Fall 2005

Political Tidbits, October 24, 2007

The latest report

The vote [on the state budget bill] in the Assembly was 60-39. Twenty-three Republicans voted yes, along with 37 Democrats.

In the Senate, the vote was 18-15, Democrats for, Republicans against.

from The Hamilton Consulting Group

State Bar welcomes new members, 126 lawyers attend swearing in ceremonies

Our State Bar reports

One hundred twenty-six lawyers were admitted by exam to practice in Wisconsin on Monday.

and 100% joined our State Bar of Wisconsin, as well.

Appellate Opinions Released October 23, 2007

The Wisconsin Supreme Court did not release any opinions.

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

State v. Jones (severely hearing-impaired defendant may be entitled to new trial if his impairment interfered in his communication with his attorney).

Madely v. RadioShack Corp. (classification of employees as exempt from overtime payment).

Appellate Opinions Released October 18, 2007

The Wisconsin Supreme Court did not release any opinions unrelated to attorney discipline.

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

Village of Hobart v. Brown County (injunction against County's operation of a waste transfer facility based on noncompliance with Village ordinances).

Gehl v. Connors (County's alleged open records violation (for deleting e-mails) cannot be reached through a claim under the public records law).

Appellate Opinions Released October 17, 2007

The Wisconsin Supreme Court did not release any opinions.

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

State v. Pfeil (supervision under the intensive sanctions program constitutes "actual confinement" for purposes of computing the habitual offender penalty enhancement).

Appellate Opinions Released October 16, 2007

The Supreme Court did not release any opinions.

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

Godoy v. E.I. du Pont de Nemours and Company (complaint did not sufficiently allege that white-lead carbonate pigment was defectively designed).

Tracking court cases just got easier: CCAP adds RSS

Derrick Nunnally at Proof and Hearsay in the Milwaukee Journal Sentinel

Already, we've got one quibble: would it have killed the CCAP folks to put the RSS feed on the "Court Record Events" page? That way, we users could RSS-track every time something actually happened in a case, not just every time the date of the next hearing changes...

(via WisBlawg)

2007-09 Wisconsin State Budget [LFB Summary]

2007-09 Wisconsin State Budget
Committee of Conference
Summary of Budget Provisions
Legislative Fiscal Bureau
October, 2007

Amendment of the Supreme Court Internal Operating Procedures

Supreme Court Internal Operating Procedures II.B.1, II.B.2, II.B.3., and II.E. have been amended on the court's own motion, effective October 19, 2007. Justice Roggensack's dissent summarizes that the changes

require the affirmative vote of four justices to direct the parties to address an issue not specifically identified in: (1) the petition for review or response; (2) the court of appeals briefs of the parties in bypass and in certification; (3) the request, or response, that the supreme court commence an original action; and (4) after oral argument before the supreme court has occurred.

Bork's Nomination Is Rejected, 58-42; Reagan 'Saddened'

Twenty years ago today.

Linda Greenhouse reported, Special to the New York Times, October 24, 1987.

ERISA "Tagalong" Securities Class Actions:

Fiduciary Liability a Decade after IKON
by John C. Minett
DRI ERISA Report, Summer 2007

Wisconsin Court System RSS

What information on this site is available as an RSS feed?
- News releases
- Supreme Court opinions and dispositional orders
- Supreme Court rules
- Supreme Court oral arguments
- Supreme Court dispositional orders
- Court of Appeals opinions
- Court of Appeals certifications

(via WisBlawg)

This Week in Liberal Judicial Activism: Week of October 22, 2007

Ed Whelan at Bench Memos.

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

The day of the netroots

The Economist reviews The Argument: Billionaires, Bloggers, and the Battle to Remake Democratic Politics by Matt Bai.

most of the “netroots” (internet grassroots activists) are not, as you might imagine, tech-savvy 20-somethings. They tend to be like Chuck: middle-aged suburbanites alienated from their neighbours. “If college kids wanted to commiserate with someone over the fear and misery of life under Bush, all they had to do was walk across the hall,” notes Mr Bai. “For affluent boomers, there was MoveOn.”

Leadership opportunities

Our State Bar has announced this new directory.

Repeal the entire Progressive Movement

While it is marvelous that Wisconsin's minimum markup law has been struck down (with respect to gasoline prices), the grounds leave much to be desired. It was struck down only because the state failed to adequately monitor the market.

With that in mind, let us recall the words of the great Justice McReynolds, dissenting in Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 524 (1934), when the majority upheld a state statute setting a minimum price for retail milk at 9 cents per quart:

"Not only does the statute interfere arbitrarily with the rights of the little grocer to conduct his business according to standards long accepted-complete destruction may follow; but it takes away the liberty of 12,000,000 consumers to buy a necessity of life in an open market. It imposes direct and arbitrary burdens upon those already seriously impoverished with the alleged immediate design of affording special benefits to others. To him with less than 9 cents it says: You cannot procure a quart of milk from the grocer although he is anxious to accept what you can pay and the demands of your household are urgent! A superabundance; but no child can purchase from a willing storekeeper below the figure appointed by three men at headquarters! And this is true although the storekeeper himself may have bought from a willing producer at half that rate and must sell quickly or lose his stock through deterioration. The fanciful scheme is to protect the farmer against undue exactions by prescribing the price at which milk disposed of by him at will may be resold!"

Political Tidbits, October 17, 2007

The latest report

Legislature Acts on Special Session Budget Bill

Federal Magistrate Rules Minimum Markup Unconstitutional

Commerce Secretary Resigns

from The Hamilton Consulting Group

State of the Judiciary 2007

Address [11 pp. pdf] by Chief Justice Shirley S. Abrahamson today in Green Bay at the annual meeting of the Wisconsin Judicial Conference

(via WisPolitics)

'Lotus Business Group LLC v. Flying J, Inc.'

Magistrate William E. Callahan, Jr., of the U.S. District Court for the Eastern District of Wisconsin held [23 pp. pdf] Wisconsin's mininum markup law, Wis. Stat. sec. 100.30, unconstitutional as applied to motor fuels.

(via JSOnline)

Supreme Court accepts 16 new cases

They are:

2006AP672-CR State v. Louis H. LaCount
2006AP217 State v. Hintz
2005AP2935 Larry v. Harris
2006AP450 Town of Rhine v. Bizzell
2006AP3163 Washburn County v. Eric D. Smith
2006AP1153 and 2006AP1974 Acuity v. Bagadia
2006AP1521 Rechsteiner v. Hazelden
2006AP1859 Walgreen Co. v. City of Madison
2006AP882-CR State v. Harris
2006AP1954-CR State v. Davis
2006AP396 Donohoo v. Action Wisconsin, Inc.
2006AP562-CR State v. Clayborn L. Walker
2006AP964 Racine County v. Int'l Assoc. of Machinists and Aerospace Workers
2006AP939 Sustache v. American Family Mutual Insurance Co.
2006AP2554 Town of Madison v. County of Dane

Scheme Liability, Section 10(b), and 'Stoneridge Investment Partners v. Scientific Atlanta'

Video of this October 5, 2007 symposium co-sponsored by the Federalist Society's Litigation Practice Group, its Corporations, Securities, & Antitrust Practice Group, and Case Western Reserve University School of Law.

Blinded teen seeks to compel use of unpublished court rulings

Michael Doyle reports for McClatchy Newspapers on this case filed in federal court in California.

The 19-year-old restaurant worker is suing the California Supreme Court to reverse its practice of largely ignoring unpublished court opinions. ...

Because the appellate court's opinion was unpublished, further appeals face long odds. [Plaintiff Joshua] Hild's lawsuit claims that appellate judges violated his constitutional due-process guarantees by leaving the June opinion unpublished and thereby essentially immune from further appeals.

(via WisBlawg)

Administrative Register effective October 15, 2007

The Revisor of Statutes Bureau has issued the first half of Administrative Register No. 622 [16 pp. pdf].

Oral argument October 16, 2007

The Wisconsin Court of Appeals [pdf] has scheduled oral argument in the following at Dist. I, 633 W. Wisconsin Ave., #1400, Milwaukee.

10:30 a.m. State of Wisconsin v. Scott G. Tikkuri, 2007AP170-CRLV

This Week in Liberal Judicial Activism: Week of October 15, 2007

Ed Whelan at Bench Memos.

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

Appellate Opinions Released October 12, 2007

The Wisconsin Supreme Court released the following opinion:

Heikkinen v. United Services Automobile Assn. (the Court was equally divided on the decision, thereby affirming the Court of Appeals' decision).

The Wisconsin Court of Appeal did not release any opinions.

Appellate Opinions Released October 11, 2007

The Wisconsin Supreme Court released a restatement of its opinion in State v. Grady ().

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

Appellate Opinions Released October 10, 2007

The Wisconsin Supreme Court did not release any opinions.

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

Brown County v. Wisconsin Employment Relations Commission (Countrywide Home Loans, Inc. v. Schmidt (County has discretion to terminate employment, but that discretion is circumscribed by collective bargaining agreement.)

Countrywide Home Loans, Inc. v. Schmidt (Mortgagee not entitled to equitable subrogation against purchaser of property when the mortgage was granted by seller after he had already entered into an enforceable contract to sell the subject property).

State v. Newer (Officer's knowledge that owner of vehicle had a revoked license, but who did not know who was actually driving, is sufficient reasonable suspicion to support a traffic stop.).

Eisenberg v. Hansen (denial of post judgment motion to vacate assessment of sanctions against Mr. Eisenberg for bringing a frivolous action affirmed).

Nastier, Noisier, Costlier

Our State Bar's President Thomas J. Basting Sr. in his monthly column in Wisconsin Lawyer

As president of the State Bar, I intend to respond to Justice Kennedy's challenge by creating as soon as possible an ad hoc Wisconsin Judicial Campaign Commission for the 2008 Wisconsin Supreme Court campaign. The commission will be composed of five to nine individuals appointed to three-year staggered terms, with a majority of the members being nonlawyers. I envision that this commission will: 1) educate the public about the unique role and responsibilities of judges; 2) actively and publicly seek signed pledges from the candidates in which they will agree to adhere to the Wisconsin Code of Judicial Conduct (the pledge will be a contract between the candidate and the citizens of the state of Wisconsin); and 3) review print and electronic media campaign advertising, position papers, press releases, statements, and other materials that attempt to influence judicial election voters. The commission will issue findings regarding compliance with the requirements of the Code of Judicial Conduct and the candidates' pledge.

Bar supports AB468 - Notarios

Our State Bar has announced it supports AB-468, a bill

relating to: notaries public who are not attorneys and providing penalties.

Shabaz clears way for successor

Kevin Murphy reports in the Wisconsin State Journal

In a letter to Bush dated Oct. 4, [Judge John] Shabaz [of the U.S. District Court for the Western District of Wisconsin], 76, said he will assume senior status if the U.S. Senate confirms his successor by Jan. 20, 2009, Bush 's last day in office.

(via WisPolitics)

Family Law Section opposes AB462 - Moving with a Child

Our State Bar's Family Law Section has announced it opposes AB-462, a bill amending divorce statutes

relating to: moving with a child.

'Medellin v. Texas': Presidential Power and International Tribunals

Audio and video of these September 27, 2007 panel discussions at the American Enterprise Institute, Washington, DC

Panel I American Law and the Decisions of International Tribunals

Professor Michael J. Matheson, The George Washington Universiy Law School
Professor John O. McGinnis, Northwestern University School of Law
Professor Peter B. Rutledge, Catholic University Columbus School of Law
Professor John C. Yoo, University of California, Berkeley School of Law, Moderator

Panel II Presidential Power and Federalism

Mr. R. Ted Cruz, Solicitor General, State of Texas
Professor Michael D. Ramsey, University of San Diego School of Law
Professor Edward T. Swaine, The George Washington University Law School
The Honorable Edwin D. Williamson, Sullivan & Cromwell LLP, Moderator

Update: Here's a transcript of the oral argument [103 pp. pdf].

(via Althouse)

Update 2: SCOTUScast featuring R. Ted Cruz, October 11, 2007 audio [mp3]

On October 10th, 2007, the Supreme Court heard oral arguments in the Medellin v. Texas case. The issue is whether state courts, on their own or by presidential directive, must follow an International Court of Justice decision that violates state law and contradicts a U.S. Supreme Court decision. In this episode of SCOTUScast, Texas Solicitor General Ted Cruz, who argued the Medellin v. Texas case on behalf of the state of Texas, offers his own analysis of the case.

Electronic Filing in the Eastern District

Effective January 1, 2008, attorneys will no longer have the option of filing paper documents with the Bankruptcy Court for the Eastern District of Wisconsin. Electronic filing will be required for all petitions, pleadings, orders, correspondence and documents of any kind filed with the Bankruptcy Court by both debtors' attorneys and creditor's attorneys.

(via WisBar)

Bar supports AB434 - Compensation Rates

Our State Bar has announced it supports AB-434, a bill

relating to: the State Public Defender reimbursement rate for private attorneys and time for the State Public Defender to make indigency determinations and assign counsel.

Individual Rights and Responsibilities Section supports AB390 - Restoring Voting Rights to Felons

Our State Bar's Individual Rights and Responsibilities Section Section has announced it supports AB-390, a bill

restoring the right to vote to a person barred from voting as a result of a felony conviction.

Bar Sections oppose SB8 and AB260 - Employment Discrimination Against Unpardoned Felons

Our State Bar's Public Interest Section and Individual Rights and Repsponsibilities Section have announced they oppose SB-8 and AB-260, bills

permitting an educational agency to refuse to employ or to terminate from employment an unpardoned felon.

Bar Sections oppose AB30 - Employment Discrimination Against Unpardoned Felons

Our State Bar's Public Interest Section and Individual Rights and Repsponsibilities Section have announced they oppose AB30, a bill

permitting an educational agency to refuse to employ or to terminate from employment an unpardoned felon

Bar Sections oppose AJR 17 - Photo ID for Voting

Our State Bar's Public Interest Section and Individual Rights and Repsponsibilities Section have announced they oppose AJR-17,a constitutional amendment

requiring a photographic identification to vote, or register to vote, at the polls on election day (second consideration).

Class Action Watch September 2007

This issue [32 pp. pdf] contains

From the Editor

Omission in FACTA Might Be Windfall for Plaintiff's Bar by Ted Frank

New Jersey and Missouri Supreme Courts Reject Lead Paint Public Nuisance Claims by Mark Behrens & Christopher Appel

ALI Principles and Litigation Trends by James Beck

More Searching Fact-Based Scrutiny of Proposed Class Actions Reaches Securities and Antitrust Actions by Brian D. Boyle & Julia A. Berman

Fluid Recovery: Manufacturing "Common" Proof in Class Actions? by Jessica D. Miller & Nina Ramos

Has the Eleventh Circuit Set a New Standard for Federal Diversity Jurisdiction? by Kenneth J. Reilly & Frank Cruz-Alvarez

Bar Sections support SB40 - Benefits for Domestic Partners for UW and State Employees

Our State Bar's Public Interest Section and Individual Rights and Responsibilities Section have announced they support this provision of SB-40, a bill

relating to: state finances and appropriations, constituting the executive budget act of the 2007 legislature.

Pro bono counsel

A new Seventh Circuit opinion sets forth a comprehensive framework for district courts considering a plaintiff's request that the court request an attorney to litigate his.

The time is here...

To reconsider the rules applicable to governmental immunity in this state when, even if it is true, as alleged, that the school principal, secretary, a teacher, the janitor, the other bus drivers, and the drivers' supervisor, all knew a bus driver was sexually abusing children on the bus, they are still immune from tort liability.

Public Interest Law Section on SB40 (Budget)

Our State Bar's Public Interest Law Section has announced that in the Senate's budget bill it opposes Job Ready Classification for W-2, Proof of Citizenship or Legal Status for Public Benefits, Assembly Cuts in Child Care Subsidies and Cost-Saving Measures, and Assembly Elimination of Family Planning Demonstration Project, but supports Badger Care Plus, and Healthy Wisconsin.

A kingdom of judges

From Canada's Western Standard Shotgun blog

On December 1, 2005, Beverley McLachlin, the chief justice of the Supreme Court of Canada, told a legal conference in New Zealand that she and her colleagues not only had the power but also the duty to invoke “unwritten values” not actually put down on paper in Canadian law, and then to employ those values as justification for inserting new, formal rights into the Canadian Charter of Rights and Freedoms. “There exists,” McLachlin opined, “fundamental norms of justice so basic that they form part of the legal structure of governance and must be upheld by the courts, whether or not they find expression in constitutional texts.” ...

That was the warning shot across the bow. A full judicial salvo hit the side of the ship of state on Friday, June 8 when McLachlin and the majority of Supreme Court justices struck down a five-year-old B.C. Liberal government law which had unilaterally rewritten costly health-worker contracts signed by the previous union-friendly NDP government. In so doing, the McLachlin court invented a new Charter right, the right to collective bargaining. ...

Bar Sections support SJR2 - Equal Rights

Our State Bar's Public Interest Section and Individual Rights and Repsponsibilities Secti