Continued at our new location

R.I.P. RSB, WSC

On January 1, 2008 the Revisor of Statutes Bureau will cease to exist and the Legislative Reference Bureau will assume responsibility for the Revisor's duties.

and

The Wisconsin Sentencing Commission and its statutory provisions under [Wis. Stat.] §973.30 were eliminated in the State’s 2007-09 Biennium Budget. Neither the Commission nor any other agency will continue to collect and analyze sentencing guidelines worksheets. Sentencing courts are still required to consider the guidelines under §973.017 (2)(a), yet will not need to complete or submit guidelines worksheets. ...

(both via WisBlawg)

This Week in Liberal Judicial Activism: Week of December 31, 2007

Ed Whelan at Bench Memos.

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

Professor challenges amendment banning gay marriage

Stacy Forster reports in the Milwaukee Journal Sentinel on a lawsuit pending in the Circuit Court for Dane County alleging the recent amendment to the Wisconsin Constitution is invalid.

The amendment [Wisconsin Constitution Article XIII, Section 13] reads: "Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state."

Dane County Circuit Judge Richard G. Niess dismissed all but one of the plaintiff's claims on the ground of lack of standing.

But, Niess said, [Plaintiff Bill] McConkey has the right to challenge the amendment on the grounds it wasn't properly presented to voters.

That issue will be argued in May.

McConkey and Lester Pines, a prominent Madison attorney representing him pro bono, have argued that the amendment wording covered two subjects - marriage and civil unions - that shouldn't have been mixed into one question.

They allege the amendment violated the provision of Article XII, Section 1 that

if more than one amendment be submitted, they shall be submitted in such manner that the people may vote for or against such amendments separately.

The first annotation to that section says,

It is within the discretion of the legislature to submit several distinct propositions to the electorate as one constitutional amendment if they relate to the same subject matter and are designed to accomplish one general purpose. Milwaukee Alliance v. Elections Board, 106 Wis. 2d 593, 317 N.W.2d 420 (1982).

Bills enacted December 21, 2007, Act 42

Act 42 Regulation of cable television and video service providers, granting rule-making authority, and making an appropriation.

Comments of the Speaker of the Assembly, Michael Huebsch, on proposed draft of the Redistricting Committee

The Wheeler Report posts his December 21, 2007 filing with the Wisconsin Supreme Court (No. 02-03) elaborating on his remarks (see this earlier post) on the Committee's report (see this earlier post) proposing procedures if there is a legislative impasse on redistricting after the next census.

This Week in Liberal Judicial Activism: Week of December 24, 2007

Ed Whelan at Bench Memos.

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

State Bar supports limited-license proposal for in-house counsel

Jack Zemlicka reported in the Wisconsin Law Journal, December 17, 2007.

The endorsed proposal would allow non-resident attorneys in good standing with their native bar association to practice with a Wisconsin employer and be subject to a one-time licensure fee and an annual Office of Lawyer Regulation (OLR) assessment.

Open enrollment school district transfers may not be denied because of applicant's race

Wisconsin Attorney General J. B. Van Hollen issued a formal opinion (OAG-4-07) December 20, 2007 applying Parents Involved in Community Schools, et al. v. Seattle School Dist. No. 1, et al., to Wis. Stat. sec. 118.51(7).

Van Hollen’s opinion analyzes the application of the statute and concludes that “the effect of section 118.51(7)(a) upon an otherwise eligible open enrollment applicant who resides in or applies to a school district eligible for Chapter 220 aid is to make the applicant’s racial classification the determining factor in whether the applicant will be permitted to transfer to fill an available space in the receiving district.” Applying Supreme Court precedent, the opinion reasons that the “transfer limitation in section 118.51(7)(a) has all the essential features of the Louisville school assignment policy invalidated in the Seattle School District No. 1 case.” Thus, the opinion concludes that “the portion of section 118.51(7)(a) that requires a school district eligible for Chapter 220 aid to reject an open enrollment application if the requested transfer into or out of the school district would increase the district’s racial imbalance is inconsistent with the equal protection guarantee of the United States Constitution.”

The opinion was requested by the Wisconsin Department of Public Instruction.

Bills enacted December 17, 2007, Acts 40-41

Act 40 Payment of the costs of advanced placement examinations taken by certain pupils.

Act 41 The filing of certain forms related to tax incremental financing district number 6 in the city of Rhinelander.

Exigent circumstances

If police show up at a house with a battering ram, and nothing happens, have the police created exigent circumtances, or are exigent circumstances lacking altogether?

Prior case law in the Seventh Circuit says the former; a new decision says the latter.

Statement of the Wisconsin Judicial Campaign Integrity Committee

One Wisconsin Now had asked the Wisconsin Judicial Campaign Integrity Committee to examine campaign literature for Judge Michael Gableman. Judge Gableman has announced he intends to run against incumbent Supreme Court Justice Louis Butler. The Committee was formed by our State Bar's President Tom Basting. (see this earlier post)

The Committee has now posted its decision at our State Bar's web site.

The Committee indicates it will take no "formal action". It goes on to remind everyone else of the proper role of a judge.

To phrase it in the vernacular, judges and justices are expected to be referees who call the “balls and strikes” as the law and the facts of a case require; they are not expected to express bias for or against one party or another.

It would seem to follow that the Committee is to a judicial election as a referee is to a baseball game.

What happens in Vegas stays in Vegas

Lose a fortune on credit to a Wisconsin Indian casino, and its an enforceable debt. Lose it to a Vegas casino, and it just disappears... as long as you file for bankruptcy before the casino can reduce the debt to a judgment in Nevada first.

Chief Justice Shirley Abrahamson speaks out about public financing for campaigns

Karen Lincoln Michel reported in the Green Bay Press-Gazette on the Chief Justice's remarks about the court's letter supporting, in principle, public financing of campaigns for judicial office. (see this earlier post)

"The reason we all signed on to the concept of a meaningful public financing system for justices is that it is part and parcel of ensuring people a fair, impartial, neutral and nonpartisan judiciary," Abrahamson said in a question-and-answer session.

"Public polls show that people, not everybody, but many, perceive that judges will be beholden to people who contribute to campaigns…Our entire democratic system depends on the public's trust and confidence in the judicial system."

(via WisPolitics)

This Week in Liberal Judicial Activism: Week of December 17, 2007

Ed Whelan at Bench Memos.

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

Administrative Register effective December 15, 2007

The Revisor of Statutes Bureau has issued the first half of No. 624

Bills enacted December 11, 2007, Acts 37-39

Act 37 An exception for law enforcement dogs to the requirement that a dog that bites a person be quarantined.

Act 38 Special distinguishing registration plates associated with first responders.

Act 39 Changes to the Health Insurance Risk-Sharing Plan.

In the matter of the Amendment of Supreme Court Rule 32.01, order December 14, 2007

The order (in No. 07-07) amends Supreme Court Rule 32.01 to add "2 circuit court commissioners appointed by the supreme court" to the Judicial Education Committee.

Appellate Opinions Released December 12, 2007

The Wisconsin Supreme Court released the following opinion:

Wisconsin Realtors Assoc. v. Town of West Point (The Court vacated its order certifying the question of whether certain statutes provide the Town with the authority to enact a moratorium on land division. The Court remanded the case to the Court of Appeals).

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

Supreme Court rules on State Bar petitions, grants nonresidents "pure" CLE comity, moves on unauthorized practice of law, among other actions

Our State Bar reports on the results of the Wisconsin Supreme Court's December 10, 2007 hearings on several petitions by the bar. (see this earlier post)

On continuing legal education comity,

The court adopted a pure comity rule for CLE requirements for State Bar nonresident members. Pure comity respects the CLE requirements of other states without demanding that they be identical or nearly identical to Wisconsin’s. Nonresidents who do not have mandatory CLE requirements in their home state must meet Wisconsin CLE requirements.

Update: Jack Zemlicka reports in the Wisconsin Law Journal December 14, 2007 State Bar endorses, Supreme Court adopts unconditional comity rule

On the Legal Services Consumer Protection petition,

In addition to requesting suggested exemption language from groups that oppose the petition, the court requested additional documentation of likely administrative needs and an assessment of organizational alternatives.

Update: Jack Zemlicka reported in the Wisconsin Law Journal December 12, 2007 Practice Makes Perfect: Court seeks more research on UPL petition

In other actions,

The court created a supreme court rule limiting to one term the number of terms a member can serve as State Bar president. The court also adopted the State Bar’s requested changes to Article II, sections 1 - 4, of the State Bar Rules and Bylaws, but denied a request seeking a formalized system requiring the statewide rotation of elections for the office of president-elect.

Update: Jack Zemlicka also reported, Court rules on a pair of State Bar bylaw revisions, that the term limits passed 4-3, while the rotation was defeated 6-1.

Federal Sentencing Law

"You keep using that word. I don't think it means what you think it means." Princess Bride (1987).

The U.S. Supreme Court addresses appellate review of below-guideline sentences, explicitly discussing the standard applied in the Seventh Circuit. However, it appears from the opinion that the Court misunderstands the standard that the Seventh Circuit uses.

Oral argument December 13, 2007

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

9:45 a.m. State v. Brian H. Duchow (05AP2175-CR)
Update: Summary when review granted

This case involves a boy with Down Syndrome. When his behavior appeared to change after he began riding a school bus driven by the defendant, Brian Duchow, the boy’s parents placed a tape recorder in the boy’s backpack. The recordings revealed that Duchow was threatening the boy and making reference to past incidents involving physical violence. Duchow was charged with intentionally causing bodily harm to a child. The circuit court denied Duchow’s motion to suppress the recordings from evidence, and Duchow pleaded guilty and was convicted.

A divided Court of Appeals reversed the conviction, concluding that the tape recordings should have been suppressed. The Supreme Court is expected to clarify whether recordings of this type – where neither party to the conversation is aware of the recording – are regulated by the Wisconsin Electronic Surveillance Control Law. From Milwaukee County

01:30 p.m. Office of Lawyer Regulation v. Gary R. George (05AP1978-D)
Wisconsin Supreme Court: Will hear oral arguments on Gary George's law license (press release at WisPolitics)

Live audio of arguments are available. WisconsinEye has live video and audio of arguments.

Appellate Opinions Released December 11, 2007

The Wisconsin Supreme Court released the following opinion:

State v. Ford (The bailiff's contact with the crime victim was not structural error requiring automatic reversal of conviction, and the trial court did not abuse its discretion in finding insufficient prejudice to warrant mistrial. Further, the trial court did not err in allowing witnesses testify to the contents of a surveillance tape because the tape was unplayable.)
Update: David Ziemer reports in the Wisconsin Law Journal December 14, 2007 Best evidence rule includes videotapes: If tape can't be viewed, it is 'destroyed'. [TRB]

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

Kriska v. WERC (WERC does not have jurisdiction to hear the appeal of a dismissed Department of Corrections employee who was serving a promotional probationary period).

High court backs public financing

Mark Pitsch reports in the Wisconsin State Journal.

All seven members of the state Supreme Court have endorsed public financing of elections for that court, saying it is needed to "protect " the judiciary.

In addition, another of the prospective candidates in the next Supreme Court election,

[Burnett County Circuit Judge Michael] Gableman supports full public financing of Supreme Court races, a spokesman said.

(via WisPolitics)

Here's the court's letter [pdf]

Oral argument December 12, 2007

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

9:45 a.m. State v. Keith A. Davis (06AP1954-CR)

10:45 a.m.(?) AccuWeb, Inc. v. Foley & Lardner, et al. (05AP3190)

1:30 p.m. State v. Dwight M. Sanders (06AP2060)
Update: Hot pursuit law goes before state Supreme Court by Brendan O'Brien, Racine Journal Times
(via Proof and Hearsay)

Live audio of arguments are available. WisconsinEye has live video and audio of arguments.

I shall purchase this

David Bernstein has signed a contract with the University of Chicago Press to write a book about my favorite U.S. Supreme Court decision of all time, to be entitled, "Rehabilitating Lochner."

Rights not taken can't be "restored"

A misdemeanor counts as a violent felony, for which civil rights have not been restored, even though, because the offense was only a misdemeanor, the defendant's civil rights were never taken away in the first place.

Oral argument December 11, 2007

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

9:45 a.m. Walworth County Dept. of Health & Human Services v. Andrea L. O. (07AP8)

10:45 a.m.(?) State v. Nathaniel L. Sumner (06AP102-CR)

1:30 p.m. Barbara Sands v. The Whitnall School District (05AP1026)

Live audio of arguments are available. WisconsinEye has live video and audio of arguments.


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. Glenn Staege v. Town of Norway (20067AP0231)

This Week in Liberal Judicial Activism: Week of December 10, 2007

Ed Whelan at Bench Memos.

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

Republican lawmaker cries foul as Supreme Court drafts a redistricting plan

Mark Pitsch reports in the Wisconsin State Journal.

The Legislature 's top Republican says the Wisconsin Supreme Court is exceeding its authority by drafting plans to rewrite the boundaries of voting districts. [see this previous post]

Another problem is that the move forces the Republican-led Assembly and the Democratic-led Senate to hire lawyers to respond to a proposal that is before the court, which could lead to big legal bills for taxpayers, said Assembly Speaker Mike Huebsch, R-West Salem. ...

(via WisPolitics)

Update: The Appleton Post-Crescent editorializes Court right to start on redistricting plan.

...Huebsch said the Supreme Court is overstepping its authority, since it's the Legislature's job to draw the boundaries. The courts are only supposed to get involved if the legislators can't agree on a plan.

Gee, what are the odds of that happening? ...

(via The Wheeler Report)

Rule Hearings December 10, 2007

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

In the Matter of the Definition of the Practice of Law and the Administration of a Rule Defining the Practice of Law filed 06/19/07 [Petition, attachment 1, attachment 2] by Thomas J. Basting, Sr., President-Elect, State Bar of Wisconsin. 07-09

Petition 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

In the matter of a petition to review State Bar bylaw amendment filed by Thomas J. Basting, Sr., President State Bar of Wisconsin and the petition for review filed by Steven Levine. 07-13

Live audio of the hearings will be available.

Appellate Opinions Released December 6, 2007

The Wisconsin Supreme Court released these opinions:

Schmidt v. Northern States Power Co. (summary judgment on tolling of statute of limitations inappropriate when there is more than one reasonable inference about when discovery of injury may have occurred; filed rate doctrine did not bar claim for damage to cattle from stray voltage).

Gumz v. Northern States Power Co. (claim for damages resulting from stray voltage not time-barred because plaintiffs exercised reasonable diligence in discovering the cause of harm to their cattle).

Update: Stray voltage cases were timely filed by David Ziemer, Wisconsin Law Journal, December 7, 2007, on Schmidt and Gumz, above. TRB

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

Rowell-Gofton v. Evans (court authority to assign a surname to a child in a paternity action).

Wisconsin DOR v. Estate of Schweitzer (DOR may not add gifts made in contemplation of death to the taxable estate).

Blogs Cited as Reason for Attorney's Change-of-Venue Request

Peter Page reported in The National Law Journal, December 4, 2007.

A Tennessee defense attorney is arguing for a change of venue in a racially charged double murder by citing postings on Internet blogs along with newspaper and television reporting -- a move that legal observers say may become more common.

The case is U.S. v. Boyd (E.D. Tenn. 07-CR-003). Here's the Defedant's Brief. [20 pp. pdf]

(via WisBlawg)

Appellate Opinions Released December 5, 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. Champlain (defense counsel was ineffective for failing to challenge jail administrator's requirement that defendant wear armband taser device during trial).

Johnson v. Burmaster (Wisconsin Virtual Academy is not in compliance with charter school, open-enrollment, and teacher certification statutes).

Appellate Opinions Released December 4, 2007

The Wisconsin Supreme Court did not release any opinions.

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

Winiarski v. The Village at Manor Park (attorney-in-fact who accepted the termination of that status after the court found the principal competent lacks standing to appeal the finding when he did not expressly reserve the right to appeal).

Phelps v. Physicians Ins. Co. of Wisconsin, Inc. (borrowed employee doctrine in the context of a first-year resident physician ).

Wright v. Wright (division of marital estate upon divorce).

Judicial Campaign Watch

Our State Bar's President Tom Basting holds a press conference tomorrow to

announce a major new initiative seeking to protect fair and impartial courts in Wisconsin by monitoring the 2008 state Supreme Court election campaign and educating the public about the unique role of judges in our democracy.

Mr. Basting will introduce members of the Wisconsin Judicial Campaign Integrity Committee, a bi-partisan panel composed of respected Wisconsin citizens who share a commitment to uphold Wisconsin’s standards of judicial integrity, independence and excellence.

The committee's letterhead indicates Mr. Basting will chair it. Other members listed are Timothy F. Cullen, David G. Deininger, Dennis L. Dresang, Anthony S. Earl, Joseph P. Heim, William M. Kraus, and Carol T. Toussaint.

Update: The Committee has a web site.

Update 2: Judith Davidoff reported in The Capital Times on Mr. Basting's announcement press conference, Task force to keep judge races in check.

...The recent face-off between Annette Ziegler, who was sworn into the bench last week, and Madison attorney Linda Clifford was tinged by partisan politics, sensational ads and big spending. According to the Wisconsin Democracy Campaign, $5.8 million was spent on the race, with Wisconsin Manufacturers and Commerce alone spending $2.2 million on Ziegler's behalf.

Bastings said the spectacle did not go unnoticed by members of the State Bar.

"The whole dignity of what a Supreme Court election should be about was questioned by a lot of people by the nature of some of the ads put forth," Bastings said.

He added that he could not give examples of specific ads, but recalled many of them as "demeaning."

More of the same is expected with the current race between Justice Louis Butler and challengers Burnett County Circuit Judge Michael Gableman and Sun Prairie attorney Charlie Schutze. The stakes are actually higher this time around, because the ideological balance of the court could change if Butler, considered a liberal, loses. ...

Update 3: Ed Garvey's on the Supreme Court watch dog

... Basting appointed people with a variety of backgrounds and some rather narrow political diversity. ...

Administrative decisions November 2007

LIRC Equal Rights Decisions

LIRC Unemployment Insurance Decisions

LIRC Workers Compensation Decisions

Alex Kozinski new Chief Judge of the Ninth Circuit

Howard Bashman at How Appealing

(via Jonathan Adler at The Volokh Conspiracy)

Althouse Blog Named to Top 100 by ABA Journal

From Law School New at the University of Wisconsin.

The blog "Althouse," written by Professor Ann Althouse of the UW Law School, has been named one of the the 100 best Web sites by lawyers for lawyers by the editors of the ABA Journal.

Ann Althouse! Ann Althouse!
U-rah-rah! Wisconsin!
Praise to thee, we link...

This Week in Liberal Judicial Activism: Week of December 3, 2007

Ed Whelan at Bench Memos.

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