Wisconsin Law Journal – WI Legal News & Resources Wisconsin Legal News & Resources

“Unless law enforcement has some basis for believing the first test is unreliable or unusable, the exigent circumstances permitting law enforcement to conduct a forcible blood draw no longer exist.” Hon. Richard S. Brown Wisconsin Court of Appeals Once an individual arrested on probable cause for OWI has provided a satisfactory and useable breath test, the exigent circumstances justifying a ...

Two aspects of the case are particularly noteworthy. First, the court’s reasoning creates the anomalous result that, in most cases, if a drunken driving suspect is given a breath test and tests over the legal limit, he cannot be subjected to a blood test, while a driver who tests under the legal limit may be so subjected. In the former ...

The hearing pursuant to sec. 51.35(1)(e) to transfer an outpatient to inpatient status must be held within 10 days or the court lacks jurisdiction, the Wisconsin Court of Appeals held on Oct. 1. In November 2001, Elizabeth M.P., had a commitment to the Fond du Lac County Department of Community Programs extended for treatment of her mental illness, until Nov. ...

The decision in this case is suspect, and may not be reconcilable with the Supreme Court’s holding this past summer in State ex rel. Marberry v. Macht, 2003 WI 79, 262 Wis.2d 720, 665 N.W.2d 155. Given the confused state of the law that the Supreme Court has created in this area, however, it could hardly be otherwise. The problem ...

Newly-retired state Supreme Court Justice William A. Bablitch is carving out a new niche for himself offering appellate tips to lawyers at Michael Best & Friedrich LLP, his new firm, as well as to those outside his firm. Speaking recently to two different groups of lawyers, Bablitch offered a number of suggestions for attorneys taking cases to the state’s high ...

The State Bar of Wisconsin Board of Governors gave a resounding “no” to a controversial measure designed to curb fee-related ethics complaints at its Sept. 20 meeting in Madison. The proposal, from the Wisconsin Courts Fee Arbitration Study Committee, calls for ethics rule revisions so that, for clients they do not regularly represent, and when it is anticipated that the ...

“Public policy supports providing governmental entities with the three-week window to complete the task of cleaning up natural accumulations of snow in a public parking lot.” Hon. Richard S. Brown Wisconsin Court of Appeals A public parking lot is a “highway” within the meaning of sec. 81.15 (2001-02), and thus, a city has limited immunity from liability for injuries suffered ...

Although the public policy analysis by the court is reasonable, it is not the only reasonable interpretation. Further-more, it is irrelevant, because the court’s discussion of the definition of “highway” is contrary to the plain language of the statutes. Thus it should be expected that the decision will be reversed if it receives further review. The Phillips case, which the ...

Hon. Ted E. Wedemeyer Jr. A municipal employee who receives worker’s compensation benefits may also file suit against a co-worker when the municipality is obligated to pay judgments against that co-worker pursuant to a collective bargaining agreement or a local ordinance, the Wisconsin Court of Appeals held on Sept. 23. On Aug. 31, 2000, Christopher Keller was driving his personal ...

Parties should not rely on this decision until the Supreme Court has the opportunity to review it, be-cause there it will almost certainly be reversed if reviewed. This is evident from comparing the language in the Milwaukee ordinance with the language in sec. 895.46. Section 895.46 provides that municipalities shall pay the judgments against its officers in two circumstances: (1) ...

The state Supreme Court is considering whether or not an insurer has to cover a claim against a contractor for property damage, which arose out of negligent work performed by a subcontractor, despite a CGL policy’s contractual liability exclusion. According to court records, the case involves a claim The Pleasant Company, a Middleton doll manufacturer, made against The Renschler Company ...

“The district judge simply disagrees with the Justice Department’s exercise of prosecutorial discretion. The judge thus is playing U.S. Attorney. It is no doubt a position that he could fill with distinction, but it is occupied by another person.” Hon. Richard A. Posner Seventh Circuit Court of Appeals A federal judge may not refuse to dismiss a charge and order ...

The Wisconsin Supreme Court on Sept. 15 vacated three recently published decisions of the court of appeals, all concerning underinsured motorist (UIM) coverage: Gohde v. MSI Ins. Co., 2003 WI 69, 261 Wis.2d 710, 661 N.W.2d 470; Dowhower v. Marquez, 2003 WI App 23, 260 Wis.2d 192, 659 N.W.2d 57; and Van Erden v. Sobczak, 2003 WI App 57, 260 ...

On remand of these three cases, two of the court of appeals’ decisions were so deficient, that even if Folkman was not decided the way it was, the court of appeals would have to virtually start over from scratch; the third was relatively sound prior to the Folkman decision, and needs little more than a balancing of the competing principles ...

The government can move to dismiss a criminal appeal before the filing of any briefs, but the defendant is not bound by the time limits of Rule 27, the Seventh Circuit held on Sept. 9. D’Marcus Mason was sentenced, in Indiana federal court, to 135 months in prison for a drug offense, after pleading guilty pursuant to a plea agreement ...

It should be expected that, in light of this decision, it will become standard operating procedure for prosecutors to file motions to dismiss before the appellant’s brief deadline, whenever a plea agreement contains a waiver of the right to appeal. Doing so has the potential to save a great deal of resources on the government’s part. By filing a motion ...

“It would be incongruous to maintain that Mr. Page has a Sixth Amendment right to counsel on direct appeal, but then to accept the proposition that he can waive such right by simply failing to assert it in his pro se response challenging his counsel’s Anders motion.” Hon. Kenneth F. Ripple Seventh Circuit Court of Appeals The Seventh Circuit held ...

The effect of the decision is that, for all practical purposes, a defendant can obtain a second shot at appeal, regardless of whether his appellate counsel files an appeal or a no-merit brief. In the recent decision by the Wisconsin Supreme Court in State v. Lo, 2003 WI 107, par. 50, the court quoted at great length from Judge David ...

Patience D. Roggensack is sworn in as Wisconsin’s 72nd Supreme Court justice while her son, Matthew, holds the family Bible “Fair.” “Even-handed.” Author of “high-quality opinions.” These were just a few of the words of praise directed at the state’s newest Supreme Court justice during her investiture ceremony Friday. Several hundred friends, colleagues, family members and supporters gathered in the ...

Justice William A. Bablitch In the Wisconsin Supreme Court’s 2002-03 term, Justice William A. Bablitch was the justice most likely to be in the majority, displacing Justice David Prosser, who had occupied that position the two previous terms. On the other end, the justice most likely to dissent was Diane S. Sykes, edging out Justice Ann Walsh Bradley and Chief ...

"In situations where companies are trying to protect their brands, reputation and image, being damaged in the court of public opinion often means they are losing the larger battle, regardless of what happens in the courtroom." Evan N. Zeppos Zeppos & Associates In high-profile cases or major litigation, lawyers and public relations professionals have to work together. While some people ...

“To use worker’s compensation cases as precedent for construing the exclusion in the general liability policy is at odds with insurance law principle that we are to interpret the language of an insurance policy according to what a reasonable person in the position of an insured would have understood the words to mean.” Judge Thomas Cane Wisconsin Court of Appeals ...

It should be assumed that this decision is limited to employers that are also Indian casinos, and thus, exempt from worker’s compensation laws. Nevertheless, if one accepts the court’s reasoning as sound, the only logical result is that private employers’ general liability policies also provide coverage for injuries such as this, even though they should only be covered by worker’s ...

Hon. Patience D. Roggensack The latest addition to the state’s highest court is very enthusiastic about her new judicial role. Acknowledging that it still doesn’t seem real, Justice Patience D. Roggensack said her first few weeks have been enjoyable. Until now, Roggensack has been settling into her new digs, reviewing the cases coming up for oral argument and contemplating petitions ...

The Seventh Circuit held on Aug. 28 that the evidence was sufficient to support a jury’s finding of age discrimination, where the employer had previously attempted to lay off the employee during a reduction in force (RIF), gave shifting reasons for the discharge, and had treated a younger employee less severely for a similar infraction. Doris Appelbaum’s employment with the ...

Because most age discrimination cases the Seventh Circuit considers involve summary judgment, rather than a trial, the decision in this case is particularly useful as precedent. That the plaintiff was successful also makes the case noteworthy. The case is most significant, however, for the discussion of who is the relevant decisionmaker. Here, that person was Schriefer. However, arguably the most ...

A district court cannot grant a “safety valve reduction” to a defendant’s sentence, even if his criminal history category overstates the seriousness of his prior offenses, the Seventh Circuit held on Aug. 22. Victor Vega-Montano pleaded guilty to one count of conspiracy to distribute in excess of 500 grams of mixtures containing cocaine, a charge that arose from his participation ...

Much of the majority’s discussion, as well as the reasoning of the trial court, misses the mark as to why the case must be decided this way. One of the cases cited with approval by the court will be more useful in other cases involving attempts to evade a mandatory minimum sentence — United States v. Boddie, 318 F.3d 491 ...

“You get litigants who have spent all this extra money to appeal the decision all the way to the Supreme Court then due to the fact that there are not an odd number of justices up there they end up losing the case.” Rep. Gregory B. Huber State Assembly Two legislators are seeking support for a proposal that would allow ...