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Year in Review – Important Opinions of 2007

WISCONSIN SUPREME COURT

CIVIL OPINIONS

Antitrust

  • In an action under Wisconsin’s antitrust statutes, a complaint need not allege significant effects on consumers in Wisconsin.
    2003AP2840 Meyers v. Bayer AG
    Issue date: July 23, 2007

Civil Procedure

  • A court may not dismiss a claim as a sanction for discovery abuses, unless the party is culpable for the abuse.
    2005P189 Industrial Roofing Services, Inc. v. Marquardt
    Issue date: Feb. 19, 2007
  • A memorandum decision that does not contain an explicit statement either dismissing the entire matter in litigation or adjudging the entire matter in litigation as to one or more parties, is not a final order that can be appealed.
    2005AP1874 Wambolt v. West Bend Mut. Ins. Co.
    Issue date: March 26, 2007
  • A final order must include an explicit statement either dismissing the entire matter in litigation as to one or more parties or adjudging the entire matter in litigation as to one or more parties.
    2005AP2336 Tyler v. The Riverbank
    Issue date: March 26, 2007
  • Where one defendant is granted summary judgment, issue preclusion bars a co-defendant from seeking contribution.
    2005AP1407 Rille v. Physicians Insurance Co.
    Issue date: April 2, 2007
  • When a municipality denies a claim, it must serve the disallowance on the claimant personally.
    2005AP2028 Pool v. City of Sheboygan
    Issue date: April 2, 2007
  • Where the parties agree to dismissal with prejudice, the original action is dismissed.
    2006AP2452-OA Green v. State of Wisconsin Elections Board
    Issue date: April 30, 2007
  • Rule 802.05, the new rule governing frivolous actions, is retroactive, but is not to be applied retroactively when the new rule diminishes a contract, disturbs vested rights, or imposes an unreasonable burden on the party charged with complying with the new rule’s requirements.
    2005AP2837 Trinity Petroleum, Inc. v. Scott Oil Co., Inc.
    Issue date: July 16, 2007
  • In the absence of a remand order in the mandate line or some other clear directive from the appellate court ultimately deciding the appeal, a circuit court has no authority to reopen a case for an amended complaint after an appellate court has affirmed the dismissal of the complaint in its entirety on the merits.
    2004AP2655 Tietsworth v. Harley-Davidson, Inc.
    Issue date: July 23, 2007

Constitutional Law

  • A sheriff’s hiring and firing of personnel to provide food service to the county jail is not a time immemorial, principal, and important duty that characterizes and distinguishes the office of sheriff, and as such, is not within the sheriff’s constitutional powers.
    2005AP2742 Kocken v. Wisconsin Council 40, AFSCME, AFL-CIO
    Issue date: June 25, 2007
  • There is no right to a jury in actions seeking forfeitures for violating modern environmental regulations, for which harm is not an element.
    2005AP1507 State v. Schweda
    Issue date: July 23, 2007

Consumer Protection

  • A retail buyer’s recovery of costs under sec. 218.0163(2) is not limited to the costs enumerated in sec. 814.04, but includes reasonable costs not enumerated in sec. 814.04.
    2005AP935 Kolupar v. Wilde Pontiac Cadillac, Inc.
    Issue date: July 23, 2007

Contracts

  • Even though two businesses had prior business dealings, it was not error to let the jury decide whether the buyer was a member of the public within the false advertising statute, sec. 100.18.
    2005AP2148 K&S Tool & Die Corp. v. Perfection Machinery Sales Inc.
    Issue date: June 18, 2007

Corporations

  • An operating agreement giving LLC members the right to inspect all records and company documents includes the right to inspect document drafts and e-mails.
    2005AP995 Kasten v. Doral Dental USA, LLC
    Issue date: July 2, 2007

Employment

  • Even though workers are classified as employees under the Worker’s Compensation Act, rather than independent contractors, they are not necessarily employees under a worker’s compensation insurance policy.
    2005AP685 Acuity Mut. Ins. Co. v. Olivas
    Issue date: Feb. 5, 2007
  • The LIRC may award a cumulative minimum PPD for multiple ligament repair procedures, even though the resulting award is higher than the highest medical estimate of PPD in evidence.
    2005AP544 DaimlerChrysler v. LIRC
    Issue date: Feb. 12, 2007
  • The Worker’s Compensation Act does not preclude an employee’s bad faith tort claim against the administrator of the Uninsured Employers Fund for its misconduct while processing the worker’s compensation claim.
    2004AP2588 Aslakson v. Gallagher Bassett Services, Inc.
    Issue date: April 9, 2007
  • An action by a co-employee that is undertaken to service or repair a vehicle is not operation of a motor vehicle that is excepted from the exclusive remedy provisions of the Worker’s Compensation Act.
    2005AP423 McNeil v. Hansen
    Issue date: May 28, 2007
  • Where an employer did not follow its own no-fault attendance policy in terminating a disabled employee, it is not entitled to any protection the policy may provide in its termination of the employee.
    2004AP1550 Stoughton Trailers, Inc. v. LIRC
    Issue date: July 23, 2007
  • Under the WFEA’s burden-shifting scheme, the carrier, not the truck driver, is the party that must seek a determination of medical and physical qualification from the DOT if the carrier intends to offer a defense that the driver was not qualified for medical reasons.
    2004AP3033 Szleszinski v. LIRC
    Issue date: July 23, 2007
  • The Milwaukee Fire and Police Commission may implement rules to administer sec 62.50, pertaining to complaints against a member, but may not pass rules that contravene the statute.
    2004AP3306 State ex rel. Castaneda v. Welch
    Issue date: July 23, 2007

Estates

  • A joint checking account established under sec. 705.03 prior to the execution of a power of attorney creates a presumption of donative intent; and the transfer of funds from such joint account by an agent acting under a power of attorney, but for the agent’s own use, creates a presumption of fraud, unless the power of attorney explicitly authorizes self-dealing.
    2005AP2492 Russ v. Russ
    Issue date: July 9, 2007

Family

  • Where a parent had previously bruised a child, the court had reasonable grounds to grant a temporary child abuse restraining order pursuant to sec. 813.122.
    2005AP1034 Kristi L.M. v. Dennis E.M.
    Issue date: July 9, 2007
  • A family court may use its remedial contempt power, where a party has consistently failed to provide tax returns and income information in a timely manner, even though the party does produce the information before the contempt hearing.
    2005AP534 Frisch v. Henrichs
    Issue date: July 23, 2007

Insurance

  • An insurance agent does not have a duty to procure requested insurance coverage until there is an agreement that the agent will do so.
    2005AP1730 Avery v. Diedrich
    Issue date: July 2, 2007
  • Section 632.32(5)(i)1. allows an insurer to reduce the limit of UIM liability by the amount paid to an insured by a non-UIM tortfeasor.
    2005AP1579 Marotz v. Hallman
    Issue date: July 16, 2007
  • Section 632.32(5)(i)1. allows an insurer to reduce the limit of UIM liability by the amount paid to an insured by a non-UIM tortfeasor.
    2003AP2482 State Farm Mutual Auto. Ins. Co. v. Bailey
    Issue date: July 16, 2007

Juveniles

  • A previous order terminating parental rights to another child cannot be collater
    ally attacked in a subsequent proceeding.
    2005AP2656 In re the termination of parental rights to Brianca M.W.
    Issue date: March 19, 2007
  • In determining whether a party seeking termination of parental rights has proven by clear and convincing evidence that a biological father has failed to assume parental responsibility under sec. 48.415(6), a circuit court must consider the biological father’s efforts undertaken after he discovers that he is the father but before the circuit court adjudicates the grounds of the termination proceeding.
    2006AP66-NM State v. Bobby G.
    Issue date: July 2, 2007

Municipal Law

  • When a certification or bypass results in a tie vote by this court, the better course of action is to vacate our decision to accept certification or bypass and remand the cause to the court of appeals.
    2006AP2761 Wisconsin Realtors Ass’n., Inc., v. Town of West Point
    Issue date: Dec. 17, 2007

Municipalities

  • Section 19.84(2) sets forth a reasonableness standard, and the standard strikes the proper balance contemplated in secs. 19.81(1) and (4) between the public’s right to information and the government’s need to efficiently conduct its business.
    2005AP2998 State of Wisconsin ex rel. Buswell v. Tomah Area School District
    Issue date: June 18, 2007

Open Records

  • A school employee cannot block the release of pornographic images that he viewed at work.
    2006AP1143-AC Zellner v. Cedarburg School District
    Issue date: May 21, 2007

Paternity

  • An unmarried man alleging himself to be the father of a stillborn may bring a motion under sec. 885.23 to establish his paternity for purposes of bringing a claim for the wrongful death.
    2005AP77 Shannon E.T. v. Alicia M.V.M.
    Issue date: March 19, 2007

Property

  • Since a riparian owner holds title to the center of a navigable stream, a landowner who owns both shores of a navigable stream owns the entire streambed.
    2005AP1689 FAS, LLC v. Town of Bass Lake
    Issue date: June 25, 2007
  • In satisfying its statutory obligation to make available a comparable replacement property, pursuant to sec. 32.05(8)(b)-(c), a condemnor must identify one or more properties that meet the parameters of sec. 32.19(2)(c) to serve as a comparable replacement business.
    2004AP267 City of Janesville v. CC Midwest, Inc.
    Issue date: July 16, 2007
  • Section 59.40(3)(c) empowers a circuit judge not only to veto the clerk’s authority to invest certain funds and pay all interest on those funds into the county general fund, but also to direct the clerk to transfer certain funds from the clerk’s control into a secure private account for the benefit of persons ultimately entitled to the funds.
    2005AP1042 HSBC Realty Credit Corp. v. City of Glendale
    Issue date: July 16, 2007

Public Health

  • Section 252.07(9)(a) authorizes confinement to a jail for a person with noninfectious tuberculosis who is at a high risk of developing infectious tuberculosis and fails to comply with a prescribed treatment regimen, provided the jail is a place where proper care and treatment will be provided and the spread of disease will be prevented, and that no less restrictive alternative exists to jail confinement.
    2005AP3141 City of Milwaukee v. Washington
    Issue date: July 23, 2007

Real Estate

  • The election of remedies doctrine does not bar a party from obtaining damages, even though they successfully obtained rescission of a contract in a prior action.
    2004AP2681 Wickenhauser v. Lehtinen
    Issue date: July 9, 2007

Tax

  • Assets received through intercompany transfers with wholly-owned subsidiaries of a parent company are not subject to use tax.
    2004AP2468 DOR v. River City Refuse Removal, Inc.
    Issue date: March 19, 2007
  • Where a hospital, rather than a government is the beneficial owner of property, a day care facility on the property is not exempt from property taxes.
    2005AP1160 Milwaukee Regional Medical Center, Inc. v. City of Wauwatosa
    Issue date: July 23, 2007

Torts

  • The collateral source rule bars admission of evidence of the amount actually paid by a plaintiff’s health insurance company for the plaintiff’s medical treatment, even for the purpose of establishing the reasonable value of the medical treatment rendered.
    2005AP2030 Leitinger v. Van Buren Mgmt., Inc.
    Issue date: July 9, 2007
  • Persons sexually abused by priests can assert claims of fraud for intentional misrepresentation based on the Archdiocese’s alleged knowledge of the priests’ prior sexual molestation of children and the Archdiocese’s intent to deceive children and their families; and the date of the accrual of the fraud claims is when the plaintiffs discovered or, in the exercise of reasonable diligence, should have discovered that the Archdiocese’s alleged fraud was a cause of their injuries.
    2005AP1945 John Doe 1 v. Archdiocese of Milwaukee
    Issue date: July 16, 2007
  • Even though an unidentified vehicle hit a third vehicle, an insured’s UM coverage does not cover her damages, where there was no hit to the insured’s vehicle.
    2005AP2962-FT DeHart v. Wisconsin Mutual Ins. Co.
    Issue date: July 16, 2007
  • A statutorily created university hospital is a political corporation under the notice of claim statute, sec. 893.80.
    2005AP2743 Rouse v. Theda Clark Medical Center, Inc.
    Issue date: July 16, 2007
  • In wrongful death actions, an eligible claimant’s cause of action does not survive the death of the claimant.
    2005AP2315 Lornson v. Siddiqui
    Issue date: July 16, 2007
  • The court is equally divided on the question of whether the published decision of the court of appeals, Heikkinen v. United Services Automobile Association, 2006 WI App 207, 296 Wis. 2d 428, 724 N.W.2d 243, should be affirmed or reversed.
    2005AP1638 Heikkinen v. United Services Automobile Ass’n.
    Issue date: Oct. 22, 2007
  • Where a dairy farmer sought out numerous experts to determine the cause of his herd’s problems, the defendant was properly denied a jury question on whether the farmer was diligent in discovering that stray voltage was the cause of damage to his herd.
    2005AP1424 Gumz v. Northern States Power Co.
    Issue date: Dec. 17, 2007
  • Even if the facts are undisputed, where there is more than one reasonable inference when a plaintiff discovered the cause of his injuries, summary judgment is inappropriate.
    2005AP1677 Schmidt v. Northern States Power Co.
    Issue date: Dec. 17, 2007

Transportation

  • eMilwaukee County Ordinance 4.05, which prohibits taxis without airport permits from making prearranged pickups, conflicts with the requirement under sec. 114.14 that the public have equal access to airport services, and to that extent is invalid and unenforceable.
    2005AP2686 & 2005AP2687 County of Milwaukee v. Williams
    Issue date: June 18, 2007

CRIMINAL OPINIONS Criminal Procedure

  • A defendant has the right to access to his presentence investigation when responding to his attorney’s no-merit brief.
    2005AP661-CRNM State v. Parent
    Issue date: Jan. 1, 2007
  • Neither the Interstate Agreement on Detainers nor waivers of extradition under the IAD for prosecution and incarceration by Wisconsin precludes Wisconsin from commencing a ch. 980 commitment proceeding.
    2004AP583 State ex rel. Pharm v. Bartow
    Issue date: Feb. 5, 2007
  • Whether testimonial hearsay evidence is admissible depends on whether, by a probability of the evidence, the defendant was responsible for the declarant being unable to testify.
    2004AP2481-CR State v. Jensen
    Issue date: M
    arch 5, 2007
  • Where a petitioner in a criminal case absconds from supervision while the appeal is pending, certiorari is dismissed as improvidently granted.
    2003AP429-CR State v. Townsend
    Issue date: March 26, 2007
  • Where a plea hearing raises questions whether the defendant is guilty or was herself the victim, an evidentiary hearing is required on the defendant’s motion to withdraw her plea.
    2005AP1189-CR State v. Lackershire
    Issue date: July 2, 2007
  • Although an attorney was ineffective in failing to conduct any independent investigation, the defendant must demonstrate prejudice to obtain a new trial.
    2004AP1592-CR State v. Mayo
    Issue date: July 2, 2007
  • Where a plea colloquy doesn’t show that the defendant understood party-to-a-crime liability, the defendant is entitled to an evidentiary hearing on whether his plea was voluntary, knowing, and intelligent.
    2005AP731 State v. Howell
    Issue date: July 2, 2007
  • The presence of morphine in an overdose victim is a fact sufficient to corroborate a defendant’s confession that he delivered a controlled substance.
    2005AP767-CR State v. Bannister
    Issue date: 7/9/2007
  • A defendant’s unfulfilled hopes of cooperating with law enforcement to obtain a lower sentence is not a sufficient reason to withdraw his plea before sentencing.
    2005AP302-CR State v. Jenkins
    Issue date: July 23, 2007
  • The bailiff’s contact with the crime victim in a criminal case is not a structural error requiring automatic reversal.
    2006AP806-CR State v. Ford
    Issue date: Dec. 17, 2007

Evidence

  • In a prosecution for homicide by intoxicated use of a vehicle, the trial court properly excluded evidence that, on prior occasions, the victim, a passenger in the car, had grabbed the steering wheel from the driver.
    2005AP81-CR State v. Muckerheide
    Issue date: Jan. 22, 2007
  • A witness’ prior statement to a police officer is admissible as a prior inconsistent statement, pursuant to sec. 908.01(4)(a).
    2005AP1920-CR State v. Nelis
    Issue date: May 28, 2007

Motor Vehicles

  • Repeated driving in an S pattern for no discernible reason is reasonable suspicion that the driver may be intoxicated.
    2005AP2778-CR State v. Post
    Issue date: May 28, 2007

Search and Seizure

  • A person may have a reasonable expectation of privacy in belongings in a vehicle, even without an expectation of privacy in the vehicle, based on the totality of the circumstances.
    2005AP1516-CR State v. Bruski
    Issue date: March 5, 2007
  • Furtive or suspicious movements do not automatically give rise to an objectively reasonable suspicion that the occupant of the vehicle is armed and dangerous.
    2005AP573-CR State v. Johnson
    Issue date: March 26, 2007
  • Even if a circuit court errs in authorizing a wiretap for offenses not enumerated in sec. 968.28, suppression is not required, where the order included both enumerated and non-enumerated offenses, and contained sufficient probable cause for the enumerated offenses.
    2005AP2202 State v. House
    Issue date: July 2, 2007

Sentencing

  • Consecutive indeterminate and determinate sentences should be treated as one continuous sentence, with the confinement periods served first, followed by continuous nonconfinement periods of parole and extended supervision.
    2005AP1487 State ex rel. Thomas v. Schwarz
    Issue date: May 28, 2007
  • Section 973.017(10) does not prevent review of a circuit court’s consideration of an applicable sentencing guideline; and a circuit court satisfies its sec. 973.017(2)(a) obligation when the record of the sentencing hearing demonstrates that the court actually considered the sentencing guidelines and so stated on the record.
    2005AP2424-CR State v. Grady
    Issue date: July 9, 2007
  • A juvenile is not entitled to sentence credit for the time he spends in custody under a juvenile commitment or an extension of a juvenile commitment, pending his conviction and sentencing on an adult charge.
    2005AP1492-CR State v. Johnson
    Issue date: July 23, 2007

WISCONSIN COURT OF APPEALSCIVIL PUBLISHED Administrative Law

  • Where a psychologist engaged in a sexual relationship after previously counseling the woman and her husband, revocation of his license was appropriate, even though the sexual relationship did not begin until more than two years after the therapy ended.
    2004AP3251 Bar-Av v. Psychology Examining Board
    Issue date: Feb. 5, 2007
  • A veterinarian cannot seek an injunction in circuit court enjoining an administrative action by the licensing board against him.
    2006AP1611 Metz v. Veterinary Examining Board
    Issue date: Oct. 8, 2007

Business

  • Testimony of two customers that they were confused by trademark infringement is sufficient to prove causation.
    2006AP1029 Western Wisconsin Water Inc. v. Quality Beverages of Wisconsin Inc.
    Issue date: July 30, 2007
  • Where a gun manufacturer’s products accounted for only 4.7 percent of a hardware store’s sale, the Wisconsin Fair Dealership Law does not apply to their dealership agreement.
    2006AP1512 Moe v. Benelli U.S.A. Corp.
    Issue date: Dec. 10, 2007

Civil Procedure

  • A plaintiff in an open meetings case cannot compel the defendant to answer discovery requests concerning the substance of discussions in properly closed meetings.
    2005AP1026 Sands v. The Whitnall School District
    Issue date: Jan. 1, 2007
  • Local rules governing the timeliness of summary judgment briefs are preempted by sec. 802.08(2).
    2006AP872 Hunter v. AES Consultants Ltd.
    Issue date: Feb. 12, 2007
  • A conditional judgment of dismissal is not a final judgment, even if it is not conditioned on the outcome of an appeal.
    2006AP2957 Dyer v. Law
    Issue date: April 16, 2007
  • A defendant is entitled to offset a subrogated interest, even though it permitted a default judgment to be entered against it.
    2006AP1566 Otto v. Physicians Insurance Co. of Wisconsin Inc.
    Issue date: July 30, 2007
  • Where a client contacted an attorney with an office in Wisconsin, Wisconsin courts have personal jurisdiction over the client in a breach of contract action brought by the attorney.
    2006AP1418 Stayart v. Hance
    Issue date: Aug. 6, 2007
  • 21 U.S.C. 360k(a) preempts state negligence and product liability claims against the manufacturer of a defribrillator.
    2006AP1506 Blunt v. Medtronic Inc.
    Issue date: Aug. 6, 2007
  • Where a doctor shredded all of his patient records, the court properly directed verdict against him in a malpractice action.
    2006AP980 Morrison v. Rankin
    Issue date: Aug. 6, 2007
  • An order need not contain a specific injunction against an action for contempt sanctions to apply.
    2006AP1529 Carney v. CNH Health & Welfare Plan
    Issue date: Aug. 20, 2007
  • Where an injured minor did not repudiate a judgment after she became of age, the judgment is binding, even if it did not comply with sec. 807.10.
    2006AP2481 Parsons v. American Family Ins. Co.
    Issue date: Sept. 3, 2007
  • An amended pleading is amended, pursuant to sec. 802.09(1), when it is served upon the parties.
    2006AP3014 Schuett v. Hanson
    Issue date: Oct. 1, 2007
  • It was not an abuse of discretion for a court to decline to address the merits of whether frivolous costs were properly assessed against an attorney five years earlier.
    2006AP2335 Eisenberg v. Hansen
    Issue date: Oct. 15, 2007
  • An injunction issued to prevent breach of a restrictive covenant must be no broader geographically than is necessary.
    2007AP46 D.L. Anderson’s Lakeside Leisure Co., Inc. v. Anderson
    Issue date: Nov. 12, 2007
  • Do
    cuments reproduced in electronic media rather than on paper are not photocopies which costs can be recovered under sec. 814.04(2).
    2006AP2320 Zurich American Ins. Co. v. Wisconsin Physicians Services Ins. Co.
    Issue date: Nov. 19, 2007
  • A default judgment was properly entered where the defendant did not file a timely answer, even though the court did not first strike the untimely answer from the record.
    2006AP2580 Keene v. Sippel
    Issue date: Nov. 19, 2007
  • A court cannot impose postjudgment sanctions for maintaining a frivolous lawsuit under sec. 802.05.
    2006AP353 Ten Mile Investments, LLC v. Sherman
    Issue date: Dec. 10, 2007

Civil Rights

  • A prison may force feed an inmate on a hunger strike, but the court cannot issue a permanent order authorizing such action.
    2005AP2750 DOC v. Saenz
    Issue date: Feb. 5, 2007

Constitutional Law

  • The DOT is not an independent going concern and is, thus entitled to sovereign immunity.
    2006AP2617 Canadian National Railroad v. Noel
    Issue date: June 18, 2007

Consumer Protection

  • Where a credit card contract’s arbitration clause prohibits the customer from proceeding on a class-wide basis, the clause is unconscionable.
    2005AP2770 Coady v. Cross Country Bank Inc.
    Issue date: Feb. 5, 2007
  • Even though a car warranty required the buyer to pay for diagnosis of a vehicle, it violated the Magnuson-Moss Warranty Act for a warrantor to require the buyer to pay for determining the cause of the vehicle’s need for repair.
    2006AP1540 Tang v. C.A.R.S. Protection Plus Inc.
    Issue date: April 9, 2007
  • A credit card company must keep copies evidencing individual transactions pursuant to an open-end credit plan, or it cannot recover on the debt.
    2007AP82-FT Estate of Newgard v. Bank of America
    Issue date: May 21, 2007

Contracts

  • Where both parties to a promissory note had immediate obligations, the note was supported by consideration and is valid.
    2006AP1095 Eli Environmental Contractors Inc. v. 435 Partners, LLC.
    Issue date: March 19, 2007

Corporations

  • Bookkeeping irregularities and imperfect corporate practices are insufficient to warrant dissolution of a corporation.
    2006AP542 Dickman v. Vollmer
    Issue date: May 14, 2007

Employment

  • In a claim alleging sexual harassment, it was error for the LIRC to exclude evidence related to the complaint although it occurred more than 300 days prior to filing of the complaint.
    2006AP987 Bowen v. LIRC
    Issue date: Feb. 12, 2007
  • The dependents of a deceased worker are entitled to death benefits under the worker’s compensation law although the worker’s death occurred before the level of permanent partial disability could be formally established.
    2006AP2398 Edward Brothers Inc. v. LIRC
    Issue date: March 12, 2007
  • There is no public policy exception to the employment-at-will doctrine for employees who complain of Securities and Exchange Commission reporting violations.
    2006AP1328 Repetti v. Sysco Corp.
    Issue date: March 5, 2007
  • There is no exception to the Worker’s Compensation Act to liability for an injured employee who is subsequently terminated, even for good cause.
    2006AP729 Emmpak Foods Inc. v. LIRC
    Issue date: June 11, 2007
  • DWD’s policy of placing W-2 eligible individuals who are deemed ready for employment — but who are nevertheless unemployed — in unsubsidized employment is inconsistent with controlling state law.
    2006AP1276 & 2006AP1855 Weston v. DWD
    Issue date: June 18, 2007
  • An employer must have a journey worker or hold a journeyman license to hire an apprentice.
    2007AP96 Robertson v. DWD
    Issue date: Aug. 20, 2007
  • A person can be both an employer under the Wisconsin Compensation Act, and an employee of another.
    2006AP2379 Acuity Ins. Co. v. Whittingham
    Issue date: Sept. 3, 2007
  • WERC has authority to review a dispute whether a county employee was properly terminated unilaterally for commission of a crime.
    2007AP135 & 2007AP136 Brown County v. WERC
    Issue date: Oct. 15, 2007
  • Radio Shack store managers were properly classified as supervisors exempt from overtime payments.
    2006AP2918 Madely v. RadioShack Corp.
    Issue date: Oct. 29, 2007
  • A worker can be an employee of another, even though he has worker’s compensation insurance as an employer.
    2007AP692 Lloyd Frank Logging v. Healy
    Issue date: Nov. 5, 2007
  • Where an employee could not prove he turned down any other opportunities to work for his employer, he cannot recover on a promissory estoppel theory for breach of contract.
    2006AP2891 Tynan v. JBVBB LLC.
    Issue date: Nov. 12, 2007
  • Under Wisconsin worker’s compensation law, an injured worker may receive a disfigurement award based on a limp.
    2006AP2695 County of Dane v. LIRC
    Issue date: Dec. 10, 2007
  • WERC does not have jurisdiction to hear the appeal of an employee on a promotional probationary period.
    2007AP813 Kriska v. WERC
    Issue date: Dec. 17, 2007
  • A clause in an employment contract that a noncompetition clause is extended by any periods of violation, renders the entire clause invalid.
    2006AP1210 H&R Block Eastern Enterprises Inc. v. Swenson
    Issue date: Dec. 31, 2007

Environmental Law

  • An administrative order directing the DNR to take action, but allowing it to exercise discretion in doing so, is not a final appealable order.
    2006AP2653 Sierra Club v. DNR
    Issue date: July 9, 2007

Evidence

  • Video animations are admissible demonstrative evidence.
    2006AP480 Roy v. St. Luke’s Medical Center
    Issue date: Sept. 10, 2007

Family

  • Parties may not agree that child support can only be modified due to catastrophic circumstances, rather than a substantial change in circumstances.
    2005AP2674 In re the Marriage of: Wood v. Propeck
    Issue date: Feb. 5, 2007
  • Where a stipulation sets a specific amount for child support, it does not create a floating percentage of earnings, even though it states the amount is based on a specific percentage of income.
    2006AP858 Waters v. Waters
    Issue date: Feb. 19, 2007
  • Parties may stipulate to forgive child support arrearages.
    2005AP2776 In re the Marriage of: Motte v. Motte
    Issue date: March 12, 2007
  • Where a married woman moved to Wisconsin while pregnant, and gave birth in Wisconsin, Wisconsin has jurisdiction over the divorce and custody dispute.
    2006AP2259 Hatch v. Hatch
    Issue date: April 30, 2007
  • Financial changes must be substantial to warrant a modification of maintenance.
    2006AP1690 Jantzen v. Jantzen
    Issue date: June 25, 2007
  • Where one child moves from living with his mother to his father, there has been a substantial change of circumstances warranting modification of child support.
    2006AP1872 In re the marriage of: Jalovec v. Jalovec
    Issue date: Aug. 20, 2007
  • An attorney’s failure to reserve a right to appeal upon his termination as a client’s agent under a power of attorney constituted a waiver that deprives him of standing to appeal.
    2007AP331 Winiarski v. The Village at Manor Park
    Issue date: Dec. 10, 2007
  • Where deposits were made to an account comprised of non-marital property, and the deposits may have been from marital property, the account should have
    been classified as divisible marital property.
    2006AP2111 Wright v. Wright
    Issue date: Dec. 10, 2007
  • A circuit court may change a child’s surname after determining paternity.
    2007AP752 Rowell-Gofton v. Evans
    Issue date: Dec. 17, 2007
  • Where the court allowed a father who had been deported to participate in TPR proceedings via Web cam, he was allowed to meaningfully participate in the proceedings.
    2007AP2283 & 2007AP2284 Waukesha County Department of Health & Human Services v. Teodoro E.
    Issue date: Dec. 24, 2007
  • A fit parent has the right to allow only an informal, haphazard schedule of visitation for grandparents.
    2006AP1766 Rogers v. Rogers
    Issue date: Feb. 26, 2007

Insurance

  • Whether an insured made a false statement, and whether the person knew or should have known the statement was false, is a question of fact for the jury, and should not be decided on summary judgment.
    2005AP3049 Pum v. Wisconsin Physicians Service Ins. Corp.
    Issue date: Jan. 1, 2007
  • Where a homeowner’s insurance policy provides coverage for offenses, as well as accidents, and personal injuries from wrongful entry, without exception, the insurer had a duty to defend the homeowner in a suit filed by neighbors, alleging that he built his house in violation of setback restrictions.
    2006AP405 Liebovich v. Minnesota Ins. Co.
    Issue date: Jan. 29, 2007
  • Where a tortfeasor’s insurer had limits that cover the injured party’s damages and the injured party settled, he cannot obtain any of his insurer’s subrogation settlement.
    2006AP976 Muller v. Society Insurance
    Issue date: Feb. 26, 2007
  • Section 631.83(5) does not toll the statute of limitations for complaints against an insurer by a third party.
    2006AP1617 Thom v. OneBeacon Ins. Co.
    Issue date: March 12, 2007
  • An insurance policy requiring an insured to pay the first $100,000 of a claim as a self-insured retention is not other insurance as that term is used in another insurance policy providing full coverage.
    2006AP1063 Brown County v. OHIC Ins. Co.
    Issue date: March 5, 2007
  • A buildup of carbon monoxide in a home is not pollution within the meaning of a pollution exclusion clause in an insurance policy.
    2006AP1332 Langone v. American Family Mutual Ins. Co.
    Issue date: March 19, 2007
  • If both the owner and driver of a motorcycle are negligent, the anti-stacking provision does not limit coverage to the policy maximum.
    2006AP1568 Progressive Casualty Ins. Co. v. Bauer
    Issue date: March 26, 2007
  • A CGL that does not explicitly exclude coverage for trademark infringement in its definition of infringement of title must be interpreted to include coverage.
    2006AP1153 & 2006AP1974 Acuity v. Bagadia
    Issue date: April 30, 2007
  • An indemnitee’s tender is valid, although it occurs before any lawsuit is filed.
    2006AP2302 Three T’s Trucking v. Kost
    Issue date: May 28, 2007
  • An automobile insurer is not liable to a party injured by its insured after it cancelled the policy for nonpayment, even if it gave no notice to the insured’s leasing company.
    2006AP2113 Bruchert v. Tokio Marine & Nichido Fire Ins. Co. Ltd.
    Issue date: May 28, 2007
  • There are no exceptions to the four corners rule when measuring an insurer’s duty to defend.
    2006AP939 Estate of Sustache v. American Family Mutual Ins. Co.
    Issue date: June 4, 2007
  • A rider to an insurance policy may exclude more than preexisting conditions.
    2006AP1035 Aul v. Golden Rule Insurance Co.
    Issue date: June 18, 2007
  • Where a primary insurer breached its duty to defend, it cannot object to arms-length transactions made by excess insurers.
    2005AP2017 Southeast Wisconsin Professional Baseball Park District v. Mitsubishi Heavy Industries America Inc.
    Issue date: July 9, 2007
  • An insurer was not prejudiced by its insured’s failure to give timely notice, even though discovery had already begun by the time notice was given.
    2006AP1028 International Flavors & Fragrances Inc. v. Valley Forge Ins. Co.
    Issue date: July 16, 2007
  • Where a property owner sold polluted land to a buyer with a warranty that the property was not polluted, the insurers of the sellers must provide coverage despite assumed liability exclusions in the policies.
    2006AP2704 United Cooperative v. Frontier FS Cooperative
    Issue date: July 23, 2007
  • A cabin may be occupied primarily as a dwelling under sec. 632.05(2), even if the owner primarily resides elsewhere, but not if he rents the cabin out to tenants.
    2006AP3112 Cambier v. Integrity Mutual Ins. Co.
    Issue date: Aug. 6, 2007

Juveniles

  • A circuit court in a TPR proceeding does not lose competence by failing to enter a disposition within 10 days of the dispositional hearing.
    2006AP2919 Dane County Department of Human Services v. Dyanne M.
    Issue date: April 9, 2007

Municipalities

  • Independent contractors employed by a municipality are not authorities subject to the open records laws.
    2005AP1473, 2005AP174 & 2005AP175 WIREData, Inc. v. Village of Sussex
    Issue date: Jan. 8, 2007
  • Where a hardship was not self-created, it was not error to grant a variance.
    2006AP1268 Accent Developers, LLC v. City of Menomonie Board of Zoning Appeals
    Issue date: March 5, 2007
  • A city cannot impose an extraterritorial minimum lot size on parcels not served by its sewer system.
    2006AP1288 Town of Delton v. Liston
    Issue date: April 9, 2007
  • A city’s regulatory power to condemn, assess, tax, and zone property within its boundaries is an interest in real property that would allow it to seek a declaration of interests in the property.
    2006AP2639 Village of Hobart v. Oneida Tribe of Indians of Wisconsin
    Issue date: June 11, 2007
  • A county is liable to a town under sec. 81.38 for half the cost of building a bridge, even if the bridge does not span a preexisting section of highway.
    2006AP2554 Town of Madison v. County of Dane
    Issue date: June 25, 2007
  • An action to force a city to comply with the direct-legislation statute, sec. 9.20, need not comply with the notice of claim requirements of sec. 893.80(1)(b).
    2006AP2697 Oak Creek Citizen’s Action Committee v. City of Oak Creek
    Issue date: July 9, 2007
  • Even though a village assured a county that a use was permitted by its zoning classification, the village is not estopped from seeking an injunction prohibiting the county from using the property that way.
    2007AP891 Village of Hobart v. Brown County
    Issue date: Oct. 29, 2007

Natural Resources

  • Failure to check tip-ups while ice fishing for more than an hour violates the regulation against fishing with an unattended line.
    2006AP1963 State v. Westphal
    Issue date: May 7, 2007

Open Meetings

  • A city’s desire for confidentiality while negotiating an agreement to develop a plant in the city does not justify closed meetings.
    2006AP427 State v. City of Milton
    Issue date: March 19, 2007
  • An intergovernmental body may move into a closed session under sec. 19.85(1)(e), even though the bargaining position to be protected is not shared by every member of the body.
    2006AP1929 Herro v. Village of McFarland
    Issue date: June 11, 2007

Open Records

  • Attorney work product is exempt from the open records laws.
    2006AP2071
    Seifert v. School District of Sheboygan Falls
    Issue date: Sept. 3, 2007
  • A copy of a record is not itself a record within the meaning of the open records law.
    2006AP2537 Stone v. Board of Regents
    Issue date: Sept. 24, 2007
  • A public records request seeking virtually every email that passed between all employees of five county offices and departments over a two-year period is overbroad and was properly denied by the county.
    2006AP2455 State ex rel. Gehl v. Connors
    Issue date: Oct. 29, 2007
  • Emergency detention reports prepared by police officers are not treatment records exempt from the open records law.
    2006AP3092 Watton v. Hegarty
    Issue date: Nov. 12, 2007

Partnership

  • When a partnership dissolves and one partner continues the business, the departing partner is entitled to a share of the profits until the business is wound up, but the continuing partner’s salary is to be deducted before profits are calculated.
    2005AP2607 Estate of Matteson v. Matteson
    Issue date: Jan. 15, 2007

Property

  • Under sec. 32.28(1), only litigation expenses incurred after the date of the jurisdictional offer in a condemnation case can be recovered.
    2006AP585 D.S.G. Evergreen F.L.P. v. Town of Perry
    Issue date: March 12, 2007
  • Where a property owner built a house too close to a shoreline, in violation of a restrictive covenant, the court has discretion to order damages to other property owners, rather than that the structure be razed.
    2006AP40 Hall v. Gregory A. Liebovich Living Trust
    Issue date: March 19, 2007
  • A strict foreclosure action on a land contract takes precedence over a pending foreclosure action brought by a judgment lienholder.
    2006AP1578 & 2006AP1579 Republic Bank of Chicago v. Lichosyt
    Issue date: May 28, 2007
  • A correction of the description of property in a deed cannot be made by simply recording an affidavit from the broker.
    2006AP3083 Smiljanic v. Niedermeyer
    Issue date: June 18, 2007
  • The holder of a construction lien involved in litigation need not file a lis pendens, if another party has already recorded one.
    2006AP3180 Carolina Builders Corp. v. Dietzman
    Issue date: July 23, 2007
  • Where a shoreland owner was given permission to build a second floor on the condition he remove a non-conforming deck, the zoning board properly denied him a variance seeking to keep the deck.
    2006AP3067 Block v. Waupaca County Board of Zoning Adjustment
    Issue date: Aug. 6, 2007
  • The statute of limitations for seeking relocation payments begins when when the condemnor executes its writ of assistance.
    2006AP2292 C. Coakley Relocation Systems Inc. v. City of Milwaukee
    Issue date: Aug. 20, 2007
  • Where a lienholder would be unjustly enriched absent subrogation of another’s interest, she is not prejudiced by priority being given to that interest.
    2007AP260 Ocwen Loan Servicing LLC v. Williams
    Issue date: Oct. 8, 2007
  • Equitable subrogation does not require payment of interest from another innocent party.
    2006AP2908 Countrywide Home Loans Inc. v. Schmidt
    Issue date: Oct. 15, 2007
  • Where a utility has maintained electrical power poles and transmission lines on property for more than ten years, it obtains a prescriptive right to continue the use under sec. 893.28.
    2007AP52 Williams v. American Transmission Co. LLC
    Issue date: Oct. 15, 2007
  • Section 703.10(6) permits condominiums to restrict occupancy to owners.
    2007AP191 Apple Valley Gardens Assn. Inc. v. Machutta
    Issue date: Dec. 3, 2007
  • Where a driveway ran across a property, the purchasers had constructive notice that the property may be subject to an easement.
    2006AP2462 Anderson v. Quinn
    Issue date: Nov. 26, 2007

Public Health

  • A health care provider is not entitled to reimbursement of legal fees incurred in federal litigation under the EAJA.
    2006AP2311 Park Manor Ltd. v. DHSS
    Issue date: July 2, 2007
  • Section 49.455 bars the government from seeking support from a community spouse pursuant to sec. 49.90 for his or her institutionalized spouse who is receiving medical assistance.
    2005AP1113 Chippewa County Department of Human Services v. Bush
    Issue date: July 30, 2007

Public Housing

  • An applicant cannot be denied admission to the federal Section 8 Housing Voucher Program based on the drug activity of a guest, rather than a household member.
    2006AP2795 Williams v. Integrated Community Services Inc.
    Issue date: June 4, 2007

Schools

  • Virtual charter schools violate Wisconsin’s charter school, open-enrollment, and teacher licensing statutes.
    2006AP1380 Johnson v. Burmaster
    Issue date: Dec. 10, 2007

Tax

  • Even if the phone company unlawfully charged sales taxes on charges that were not for telecommunication services, the voluntary payment doctrine precludes class action status.
    2005AP2355 Butcher v. Ameritech Corp.
    Issue date: Jan. 1, 2007
  • Where software required 3,000 modifications requested by the buyer, it is customized software exempt from the sales and use tax under sec. 77.51(20).
    2004AP3239 DOR v. Menasha Corp.
    Issue date: Feb. 5, 2007
  • A taxpayer may not setoff his gambling winnings with his losses.
    2006AP1660 Dettwiler v. DOR
    Issue date: April 2, 2007
  • Unless an equipment rental company refrains from all rentals of equipment for more than one month, the equipment is subject to municipal personal property taxes.
    2005AP1440 United Rentals Inc. v. City of Madison
    Issue date: May 7, 2007
  • A city may base property taxes based on the rents paid pursuant to a long-term lease, rather than market rents for comparable properties.
    2006AP1859 Walgreen Co. v. City of Madison
    Issue date: May 28, 2007
  • In calculating a taxpayer’s estate tax, the DOR cannot include gifts made in contemplation of death.
    2006AP984 DOR v. Schweitzer
    Issue date: Dec. 17, 2007

Torts

  • A negligence complaint alleging that adults knowingly permitted underage high school students to consume alcohol on their property and to drive away intoxicated, resulting in a car accident, is not barred by public policy.
    2006AP364 Nichols v. Progressive Northern Ins. Co.
    Issue date: Feb. 5, 2007
  • A party who maintains a snowmobile trail is entitled to recreational immunity.
    2006AP914 Held v. Ackerville Snowmobile Club Inc.
    Issue date: Feb. 26, 2007
  • A plaintiff suing a criminal defense attorney for malpractice must prove actual innocence, even if the attorney was only retained for appeal, rather than trial.
    2006AP1075 Tallmadge v. Boyle
    Issue date: Feb. 26, 2007
  • The question of a plaintiff’s competency under sec. 807.10 is a question of fact, rather than law.
    2006AP963 Kainz v. Ingles
    Issue date: March 19, 2007
  • Where various procedures were all related to treating the same condition, they give rise to a single action for medical malpractice, and the statute of limitations does not begin until the last act of negligence.
    2006AP1654 Forbes v. Stoeckl
    Issue date: May 14, 2007
  • A drug and alcohol rehabilitation center that treats a physician at his employer’s expense is immune from suit for defamation by the physician, pursuant to sec. 146.37(1g).
    2006AP1521 Rechsteiner v. Hazelden
    Issue date: May 28, 2007
  • The plain language of sec. 895.04(4) all
    ows an adult child to recover for loss of society and companionship following the death of a parent.
    2006AP1773 Pierce v. American Family Mutual Ins. Co.
    Issue date: June 11, 2007
  • Where it cannot be ascertained whether a child had yet been conceived at the time of a doctor’s misdiagnosis of his father, who later died, summary judgment was improperly granted to the doctor on the child’s derivative malpractice claim.
    2006AP1125 Brusa v. Mercy Health System Inc.
    Issue date: June 11, 2007
  • A defectively designed step is a structural defect, subject to the 10-year statute of repose.
    2006AP2421 Rosario v. Acuity
    Issue date: July 16, 2007
  • Where there are material facts in dispute, it is error to rule in favor of the defendant pursuant to the Good Samaritan statute.
    2007AP51 Clayton v. American Family Mut. Ins. Co.
    Issue date: Oct. 1, 2007
  • Shareholders can sue the corporation’s accountants for the damages suffered as individuals, and can recover all damages that flow from the misconduct.
    2006AP1573 & 2006AP2290 Krier v. Vilione
    Issue date: Oct. 8, 2007
  • The integration of one product, whether manufactured or not, into another product that is thereby made dangerously defective, does not, by that fact alone, impose liability on the maker of the integrated product.
    2006AP002670 Ruben Baez Godoy v. E.I. du Pont de Nemours and Company
    Issue date: Oct. 22, 2007
  • When sec. 895.049 bars a reduction of damages, it also precludes a person’s failure to wear a helmet from being considered a form of negligence.
    2006AP2861 Hardy v. Hoefferle
    Issue date: Nov. 12, 2007
  • Municipalities are immune from suit for the negligent design and installation of water mains.
    2006AP3053 DeFever v. Liberty Mut. Ins. Co.
    Issue date: Dec. 3, 2007
  • A first-year medical resident is not a borrowed employee, so the damage caps in Chapter 655 do not apply.
    2006AP2599 Phelps v. Physicians Ins. Co. of Wisconsin Inc.
    Issue date: Dec. 10, 2007

Trusts and Estates

  • A will is not impermissibly restrictive, even though it effectively disallows alienation or partition of property during the lifetimes of the beneficiaries.
    2006AP1559 Fohr v. Fohr
    Issue date: May 7, 2007

CRIMINAL PUBLISHED Attempted homicide

  • A defendant is not entitled to a new trial, even though he was convicted of a crime, and a lesser-included offense of the same crime.
    2006AP419-CR State v. Cox
    Issue date: Feb. 19, 2007

Confrontation Clause

  • Where a defendant made 21 phone calls to a witness to intimidate her from testifying, he forfeited any objection on Confrontation Clause grounds he may have to admission of her prior statements.
    2005AP1265-CR State v. Rodriguez
    Issue date: Oct. 8, 2007
  • The admission of bank records without the opportunity to cross-examine the witness-affiant violates the Confrontation Clause.
    2006AP2254-CR State v. Doss
    Issue date: Aug. 13, 2007

Conspiracy to Manufacture Psilocybin

  • Although a defendant charged with conspiracy to manufacture psilocybin made only one sale of spores to an undercover agent, the evidence is sufficient to convict him of conspiring with the agent.
    2006AP2557-CR State v. Routon
    Issue date: July 2, 2007

Controlled Substances

  • Evidence that a defendant used a vehicle once to transport cocaine is insufficient to convict him of keeping a drug vehicle, in violation of sec. 961.42(1).
    2006AP775-CR State v. Slagle
    Issue date: March 19, 2007

Criminal Procedure

  • To show a violation of sec. 125.075(1), causing death by procuring alcohol for a minor, the State need not establish direct contact between the defendant and the minor.
    2005AP2839-CR State v. Wille
    Issue date: Feb. 5, 2007
  • A court may impose jury fees against the State for canceling a jury trial less than three days before trial.
    2006AP139 Flottmeyer v. Circuit Court for Monroe County
    Issue date: Feb. 26, 2007
  • Where a brief failed to include the transcript of a hearing and decision by the trial court, the appellant is sanctioned $150.
    2006AP1625-CR State v. Bons
    Issue date: March 19, 2007
  • A court, rather than a jury, may determine the applicability of a prior conviction for sentence enhancement where the applicability of the prior conviction is readily determined on the existing judicial record.
    2006AP672-CR State v. LaCount
    Issue date: March 26, 2007
  • The traditional rules barring impeachment of a jury verdict after the court has accepted the verdict apply with equal force in a bifurcated trial where the issue of juror dissent does not arise until the second phase of the proceedings.
    2006AP1544-CR State v. Wery
    Issue date: June 18, 2007
  • Where the courthouse doors were locked and the public denied access to the courtroom while the defense presented its case and the State presented its rebuttal, the defendant’s right to a public trial was violated.
    2006AP2535 State v. Vanness
    Issue date: July 9, 2007
  • Where only one conviction is defective in a plea colloquy involving multiple charges, a trial court may allow withdrawal of the guilty plea only on the defective conviction, leaving the remainder of the pleas intact.
    2006AP1574-CR State v. Roou
    Issue date: July 23, 2007
  • A court should not convert a motion for sentence modification into a motion for resentencing without the defendant’s approval.
    2006AP1338-CR State v. Wood
    Issue date: July 23, 2007
  • It was not ineffective assistance of counsel for attorneys to not object to the prosecutor’s recommendations regarding extended supervision and probation, where the prosecutor recommended the agreed amount of prison time.
    2006AP2509, 2006AP2510 & 2006AP2511 State v. Quarzenski
    Issue date: Aug. 27, 2007
  • The Double Jeopardy Clause does not bar multiple prosecutions for repeated sexual assault of a child where the acts occurred in multiple venues.
    2006AP2727-CR State v. Nommenson
    Issue date: Sept. 24, 2007
  • It was not improper for the prosecutor to comment on the fact that the defendant’s wife did not appear, despite being subpoenaed by the State.
    2005AP2672-CR State v. Cockrell
    Issue date: Oct. 1, 2007
  • Where the State would suffer prejudice if the defendant were allowed to withdraw his guilty plea, the court properly denied the motion to withdraw.
    2006AP3152-CR State v. Rushing
    Issue date: Oct. 1, 2007
  • Where a defendant is deaf, it was error to deny an evidentiary hearing on whether he was able to effectively communicate with his attorney without a translator.
    2007AP226-CR State v. Jones
    Issue date: Oct. 29, 2007
  • A suspect’s statement, “Then put me in jail. Just get me out of here. I don’t want to sit here anymore, alright? I’ve been through enough today,” is not an unequivocal announcement that she wishes to exercise her right to remain silent.
    2006AP2871-CR State v. Markwardt
    Issue date: Nov. 5, 2007
  • A suspect was not in custody at the lobby of a sheriff’s office where he was not told he had to wait for an ambulance, was not told he was under arrest, was not handcuffed, and was not physically restrained in any way.
    2007AP636-CR State v. Torkelson
    Issue date: Nov. 19, 2007
  • The State need not include the enacting clause for each particular statute for jurisdiction to exist.
    200
    6AP2168-CR State v. Weidman
    Issue date: Dec. 3, 2007
  • Where a defendant did not object to the exclusion of family members from trial, appellate review is for ineffective assistance of counsel, and the defendant must show prejudice.
    2007AP5-CR State v. Ndina
    Issue date: Nov. 26, 2007
  • It was ineffective assistance of counsel for a defense attorney not to object to his client’s being fitted with a taser armband visible to the jury during trial.
    2006AP2435-CR State v. Champlain
    Issue date: Dec. 10, 2007

Due Process

  • A photo array is not impermissibly suggestive, even though the photos were shown to the witness simultaneously, rather than sequentially.
    2006AP2522-CR State v. Drew
    Issue date: Sept. 10, 2007

Evidence

  • Gaps in the chain of command of evidence are relevant to the weight of the evidence but do not preclude its admission.
    2006AP522-CR State v. McCoy
    Issue date: Jan. 1, 2007
  • Even though an expert witness for the State misrepresented his credentials, a defendant is not entitled to a new trial.
    2005AP2311-CR State v. Plude
    Issue date: March 12, 2007
  • A one-party consent recording that was not obtained in cooperation with law enforcement is inadmissible evidence.
    2005AP2175-CR State v. Duchow
    Issue date: April 9, 2007
  • In a prosecution for felon in possession, it was error to exclude evidence that another person present was also a convicted felon.
    2006AP1240-CR State v. Jackson
    Issue date: May 14, 2007
  • It was improper to admit the testimony of a gang expert, absent evidence that the defendant was a gang member.
    2006AP2436-CR State v. Burton
    Issue date: Nov. 5, 2007
  • Where a witness had no motive to be untruthful, it was harmless error for the State to fail to disclose his prior criminal record.
    2007AP516-CR State v. Rice
    Issue date: Dec. 24, 2007

Felon in Possession

  • Indian treaties guaranteeing the right to hunt do not preempt enforcement of the statute barring felons from possessing firearms.
    2006AP2076 State v. Jacobs
    Issue date: May 7, 2007

Forfeiture

  • If a hearing is not held in a forfeiture action within 60 days of the defendant filing an answer, the action must be dismissed with prejudice.
    2006AP2016 State v. One 2000 Lincoln Navigator
    Issue date: April, 2, 2007

Harmful Descriptions to Child

  • Internet chat messages are verbal communications prohibited by sec. 948.11(2)(am), which prohibits verbally communicating a harmful description or narrative account to a child.
    2006AP833-CR State v. Ebersold
    Issue date: Nov. 5, 2007

Hit and Run

  • Section 346.67(1) requires an operator of a vehicle to identify him or herself as the operator of the vehicle, not merely remain on the scene and summon assistance.
    2006AP2248-CR State v. Wuteska
    Issue date: May 28, 2007
  • Where a driver loses control of his vehicle, and crashes into a home adjacent to the highway, an accident has occurred within the scope of the hit-and-run statute.
    2006AP1845-CR State v. Dartez
    Issue date: April 2, 2007

Interference with custody

  • Where a defendant persuaded and manipulated two unfamiliar children to come to his home, the evidence is sufficient to support convictions of interfering with child custody.
    2006AP1127-CR State v. Bowden
    Issue date: Nov. 5, 2007

John Doe Hearings

  • Persons filing a John Doe petition may compel witnesses to appear on their behalf.
    2007AP230-W State ex rel. Hipp v. Murray
    Issue date: July 23, 2007

Mayhem

  • Injury to the victim’s forehead constitutes mayhem.
    2006AP499-CR State v. Quintana
    Issue date: Jan. 22, 2007

Misconduct in Public Office

  • In a prosecution for misconduct in public office, it was error to instruct the jury: The use of a state resource to promote a candidate in a political campaign or to raise money for a candidate provides to that candidate a dishonest advantage.
    2006AP2095-CR State v. Jensen
    Issue date: Nov. 19, 2007
  • In a prosecution for misconduct in public office, it was error to instruct the jury: The use of a state resource to promote a candidate in a political campaign or to raise money for a candidate provides to that candidate a dishonest advantage; and [i]t is a state employee’s duty not to use, or direct the use of, state resources for political campaigns…. Political activity includes any of the following: Campaign fundraising, the preparation and maintenance of campaign finance reports, and candidate recruitment.
    2006AP2121-CR State v. Schultz
    Issue date: Nov. 19, 2007

Motor Vehicles

  • An officer’s knowledge that a vehicle’s owner’s license is revoked will support reasonable suspicion for a traffic stop so long as the officer remains unaware of any facts that would suggest that the owner is not driving.
    2006AP2388-CR State v. Newer
    Issue date: Oct. 15, 2007
  • Where the jury requested a clarification of the term materially impaired, the court erred in not giving the definition found in State v. Waalen, 130 Wis. 2d 18, 27, 386 N.W.2d 47 (1986).
    2006AP2753-CR State v. Hubbard
    Issue date: Oct. 29, 2007
  • An administrative suspension of a defendant’s driver’s license based on probable cause of intoxication is not a prior offense under sec. 346.65.
    2006AP2836-CR State v. Machgan
    Issue date: Dec. 3, 2007
  • The state has no right to an interlocutory review of an order granting a defendant’s motion to collaterally attack a prior OWI conviction.
    2007AP1582-CR State v. Knapp
    Issue date: Dec. 10, 2007

Necrophilia

  • Section 940.225(7) does not prohibit necrophilia.
    2006AP2744-CR, 2006AP2745-CR & 2006AP2746-CR State v. Grunke
    Issue date: Aug. 6, 2007

Prostitution

  • Paying another person to watch her masturbate is not prostitution.
    2006AP2301-CR State v. Turnpaugh
    Issue date: Oct. 1, 2007

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