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State Bar will consider $14 dues increase

The State Bar of Wisconsin Board of Governors will be asked next week to approve a measure permitting the bar’s Finance Committee, as it finalizes next year’s budget, to include a $14 dues hike for the state’s 21,000 lawyers. That sum represents a compromise, says Finance Committee Chair Dean R. Dietrich, of Wausau’s Ruder, Ware & Michler LLSC, because it’s ...

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Frisk of nervous passenger held unlawful

“An officer’s concern for his or her safety, or lack thereof, is only one part of the rich tapestry of factors that is the totality of the circumstances inquiry.” Hon. Shirley S. Abrahamson Wisconsin Supreme Court An officer’s subjective belief that his safety or that of others is in danger is not a prerequisite to conducting a protective search for ...

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Frisk Case Analysis

Aquestion that the decision leaves notably unaddressed is the continued vitality of the penultimate paragraph in State v. Mohr, 2000 WI App 111, par. 17, 235 Wis.2d 220, 613 N.W.2d 186. The court of appeals wrote, “We also consider noteworthy the fact that the stop and frisk of Mohr occurred during a vehicle search consented to by the driver after ...

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Landowners can contest enforcement of decision

Hon. Ann Walsh Bradley A landowner may contest enforcement of an adverse zoning decision, even though he has already been found in violation of the zoning laws, the Wisconsin Supreme Court held on March 5. Eric and Christine Winkelman own a lot containing two houses in the Town of Delafield. The Winkelmans used one of the two homes on their ...

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Zoning Case Analysis

While the Supreme Court affirms the decision of the court of appeals, it changes the result somewhat in that, on remand, the circuit court will be free to consider all equitable arguments, regardless of whether the certiorari court has already considered them. Under the Supreme Court’s decision, issue preclusion has no place in the circuit court, regardless of whether equitable ...

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Sex predator laws face changes

Fewer of those deemed sexually violent persons may win supervised release from commitment if the provisions in a bill before the state Assembly become law — and that’s as it should be, according to one of the bill’s authors. State Sen. Mary Lazich (R-New Berlin) told the Assembly Committee on Criminal Justice at a public hearing last week that studies ...

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Guilty plea bars malpractice claim

A client’s guilty plea bars her from bringing a malpractice action against her attorney, the Wisconsin Court of Appeals held on Feb. 26. Patricia Mrozek, a financial advisor and securities agent, retained the law firm of Mallery & Zimmerman, S.C., to assist her in forming PMI, a corporation formed to construct and operate a motel. After hiring the Mallery firm, ...

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Preclusion Case Analysis

An interesting question raised by the case is whether the result would be the same as to Mrozek’s claim, if she had pleaded no contest instead of guilty. The seemingly obvious answer is that issue preclusion would not apply. The “essential characteristic” of a no contest plea is that it can’t be used collaterally as an admission in future civil ...

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Search warrant permits arrest also

Police may arrest a suspect at his home, without an arrest warrant, if they are on the premises pursuant to a valid search warrant, the Wisconsin Court of Appeals held on Feb. 25. The court also held that a plea agreement that allows a judgment to be reopened and amended to recite a lesser offense prior to sentencing is permissible. ...

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Warrants Case Analysis

Defendants affected by the decision that a search warrant justifies an arrest without an arrest warrant, prior to the search itself, should continue to raise this issue and preserve it for possible review in the Supreme Court. It may not succeed, but it is worth preserving. The problem with the court of appeals’ decision is that it rests on an ...

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13-page auto policy unambiguous

“As each policy’s length including the endorsement is only thirteen pages, a policy holder can easily flip through the policy and find the clearly-labeled endorsement page at the end.” Hon. Patricia Curley Wisconsin Court of Appeals An automobile insurance policy that is only 13 pages long, and contains no confusing language, is not so organizationally complex that the reducing clause ...

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Reducing Clause Case Analysis

The decision is a good candidate for review in the Wisconsin Supreme Court, for two reasons: (1) it creates conflict between District I and District III as to whether reducing clauses can include any sources other than the three enumerated examples in sec. 632.32(5)(i); and (2) the court arguably failed to apply Badger Mutual Ins. Co. v. Schmitz, 2002 WI ...

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Guerin, Shriner vie for president-elect

“We need to keep pounding the message to lawyers about the ‘Jimmy Stewart mentality.’ Lawyers need to step back sometimes and recognize how they have changed people’s lives, and how truly rare they are.” D. Michael Guerin Gimbel, Reilly, Guerin & Brown Those who enjoy mud-slinging will have to look to other contests, because that’s just not the style of ...

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Lying to disabled is misrepresentation

“There were multiple opportunities for someone to tell Betterman the truth, yet no one did. The jury could have reasonably found that, under the circumstances, Fleming’s representations were outrageous.” Hon. Gregory A. Peterson Wisconsin Court of Appeals Punitive damages were properly awarded to an employee on leave who was told he had a job waiting when he got better, but ...

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Misrepresentation Case Analysis

There are several possible grounds for this decision to be either reversed in whole or in part, if it were to receive further review in the Wisconsin Supreme Court. The first is whether the elements of intentional misrepresentation were met. As the court noted, one of the elements is, “the statement must be made with the intent to defraud and ...

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Court looks at open records vs. attorney-client privilege

The state Supreme Court is considering whether a zoning board of appeals can assert attorney-client privilege or whether documents sent between the board chair and the municipal attorney are subject to open records laws. During Feb. 12 oral arguments, petitioners in the case, who had been denied a zoning variance, maintained that a zoning board of appeals is required to ...

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Do Good

Pro Bono Opportunities for Attorneys This is a joint project that we produce with the help of groups and agencies such as Legal Action of Wisconsin and the Dane County Delivery of Legal Services Committee. We invite additional groups with pro bono opportunities to contact us about participating in this project, as well. -Tony Anderson, Editor (414) 276-0273, Ext. 123 ...

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Revoked probationer can reopen proceedings

“Our system of justice would have little meaning if it failed to provide a procedure for individuals who have substantial credible evidence to prove their innocence.” Hon. Ted E. Wedemeyer Wisconsin Court of Appeals A probationer has the right to reopen a revocation hearing based on newly discovered evidence, the Wisconsin Court of Appeals held on Feb. 10. On July ...

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Probation Case Analysis

An interesting question raised by the case is whether or not it will change the standards when a probationer or parolee is not revoked, and the Department subsequently initiates a second revocation hearing based on the same conduct. In such cases, the law is currently established in State ex rel. Leroy v. DHSS, 329 N.W.2d 229, 110 Wis.2d 291 (Ct.App.1992). ...

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Fees must be set before review

“This is not an appropriate occasion for [appellate review], because we cannot be sure what the dismissal order would have provided, yet its details could affect the question whether plaintiffs are prevailing parties.” Hon. Frank Easterbrook 7th Circuit Court of Appeals Unless attorney fees owing under Rule 37 have been quantified, the decision whether to award fees in the first ...

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Appeal Case Analysis

In the wake of this decision, a question arises how much, if any, of the holding in Bittner v. Sadoff & Rudoy Industries, 728 F.2d 820 (7th Cir. 1984), remains valid law. In that case, Bittner was an employee of Sadoff & Rudoy. Bittner’s son became mentally disabled, and received benefits pursuant to an ERISA plan. The benefits were terminated, ...

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2000 school referendum is finally resolved

“Because there is a qualifying mark in a qualifying place on the ballot, the vote should be counted, so as to give effect to the will of the voter.” Justice N. Patrick Crooks Wisconsin Supreme Court A slash mark next to the “no” box on a ballot was a qualifying mark that had to be counted, even though it was ...

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Ballots Case Analysis

It is ironic that, as Wisconsin prepares to vote in the 2004 presidential primary, its Supreme Court is finally settling an election, involving fewer than 800 total votes, that was held on the same day as the disputed Bush-Gore election resolved long ago. The irony is apparently lost on the court, though, for, by rejecting the framework set forth in ...

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Funding issues rock Legal Action

A little more than a year after the merger of three of the firms providing civil legal assistance to the poor in Wisconsin, the merged entity is suffering the effects of staff cuts in 2003, the consolidation of two of its offices and the impending closing of another office. According to John Ebbott, executive director of Legal Action of Wisconsin ...

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Supplemental instructions should be rare

“Our system of justice should not permit the State also to ask for additional substantive instructions once it realizes why the jurors may be experiencing difficulties in reaching a verdict.” Hon. Patricia S. Curley Wisconsin Court of Appeals It was error to instruct a jury on lesser-included offenses after the jury became deadlocked, the Wisconsin Court of Appeals held on ...

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