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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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Jury Instructions Case Analysis

The court agreed that a per se rule against supplemental jury instructions on lesser-included offenses is not warranted, although such instructions should be rare, and reserved for exceptional circumstances. The question is, what constitutes “exceptional” — a difficult question, given the similarities between the case at bar and U.S. v. Welbeck, 145 F.3d 493 (2d Cir. 1998), the only case ...

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Contamination exclusion unambiguous

A bacterial outbreak at a food company is “contamination” within the meaning of a pollution exclusion in its commercial property insurance policy, the Wisconsin Court of Appeals held on Jan. 28. Landshire Fast Foods of Milwaukee, Inc., prepares sandwiches and other foods for sale to businesses and institutions. In 1999, Landshire began delivering sandwiches to the commissary at Great Lakes ...

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Contamination Case Analysis

The decision is remarkable for its failure to even cite to the governing Wisconsin Supreme Court decision on pollution exclusions, Donaldson v. ULI, 211 Wis.2d 224, 564 N.W.2d 728 (1997), in which the court held that the identical exclusion at issue in the case at bar was ambiguous. Donaldson involved a “sick building” case — because of inadequate ventilation, the ...

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Roundtable Discussion – Part II

Case Evaluation (Front) Kelly Centofanti, Stadler & Centofanti, LLC; Mark Silverman, Legal Action of Wisconsin, Inc.; Charles Barr, Croen & Barr, LLP; (Back) Jeffrey Hynes, Jeffrey S. Hynes & Associates, S.C.; Jay Urban, Urban Taylor & Stawski, Ltd.; Merrick Domnitz, Domnitz, Mawicke & Goisman, S.C. One of the most important aspects of practicing law is the effective evaluation of cases. ...

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Defendants must be told about Truth in Sentencing

“Because the court did not inform Uhde that Wisconsin’s Truth in Sentencing legislation mandates that he serve each day of confinement imposed by the court, and because Uhde asserted that he did not understand this information, Uhde has made a prima facie showing that the plea was not knowing, voluntary and intelligent.” Hon. Charles P. Dykman Wisconsin Court of Appeals ...

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Sentencing Case Analysis

Inasmuch as the decision threatens to undermine the validity of every conviction entered pursuant to a plea since the inception of Truth in Sentencing, it should be expected that the State will seek review, and that the Supreme Court will accept it. If it does, the Court may find it difficult to reverse the court of appeals, without also overturning ...

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Court should decide corporate veil issue

Where state law requires a finding that a corporate veil must be pierced to prevent injustice or inequity, the decision whether to pierce the veil is for the court to decide, rather than the jury, the Seventh Circuit held on Jan. 23. The doctrine allows an individual or entity to be liable for purely corporate obligations, where the corporation is ...

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Corporate Veil Case Analysis

Although the decision does not apply to actions governed by Wisconsin law, the result would likely be the same in such cases. In Consumer’s Co-op of Walworth County v. Olsen, 142 Wis.2d 465, 484, 419 N.W.2d 211, 217-218 (1988), the Wisconsin Supreme Court set forth two tests for determining whether the corporate veil should be pierced, and called those tests ...

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Curfews on minors violate First Amendment

A curfew on minors impermissibly chills the exercise of their First Amendment rights and is unconstitutional, the Seventh Circuit held on Jan. 22. In Indiana in 1999, shortly after 11 p.m., Colin Hodgkins and three friends left a restaurant after stopping to eat there after a school soccer game. As they left the restaurant, they were arrested for violating Indiana’s ...

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Curfews Case Analysis

Even though the case only held an Indiana statute unconstitutional, the reasoning will have repercussions in Wisconsin. Because Wisconsin has no statute establishing a curfew, but leaves that to individual municipalities, compliance with the decision will be far more complicated here. Many curfew ordinances are patently unconstitutional in the wake of the holding. For example, Milwaukee City Ordinance 106-23 provides ...

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Labor Logic

Compensatory, punitive damages not available in ADA retaliation claims

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Assembly hears testimony on SPD bill

State attorneys educated the state Assembly’s Committee on Corrections and the Courts in testimony on Jan. 14, concerning 2003 Assembly Bill 616, which would increase eligibility for appointment of counsel by the State Public Defender. The bill, introduced by Rep. Terri McCormick, among others, would change the current standards — still based on 1987 AFDC eligibility — to mirror W-2 ...

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Under FDCPA, a lawsuit is ‘communication’

“They were doing what lawyers traditionally do — filing a lawsuit in state court on behalf of their client. To hold that they must include in their court pleadings all the notice/validation, etc. information required by the FDCPA seems very odd indeed.” Hon. Terence T. Evans in dissent A law firm’s filing a summons and complaint on behalf of a ...

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FDCPA Case Analysis

The decision has the potential to not only expose attorneys to liability merely for filing a legitimate complaint, but to create havoc in the courts in numerous ways. First, requiring these notices will create confusion for the debtor. The notice will state that the debtor has 30 days to challenge the debt. However, the summons will state that the debtor ...

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Schudson’s supporters respond to Kessler’s allegations

Foley & Lardner partner Joan Kessler has said she chose to run against Court of Appeals Judge Charles B. Schudson because he was handling fewer cases than his colleagues and he had misused his position to solicit support for his campaign. The Wisconsin Court of Appeals chief judge and three lawyers have responded with a letter challenging the veracity of ...

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Builder’s insurance must replace faulty building

“There is nothing in the language of the current CGL policy to support any definitive tort/contract line of demarcation for purposes of determining whether a loss is covered by the CGL’s initial grant of coverage. ‘Occurrence’ is not defined by reference to the legal category of the claim. The term ‘tort’ does not appear in the CGL policy.” Hon. Diane ...

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CGL Insurance Case Analysis

Justice Roggensack’s dissent characterizes the majority opinion as transforming a standard CGL policy into a “performance bond,” an accurate assessment that need not be iterated. The decision can also be understood (especially by attorneys) as transforming the standard CGL policy into an Errors and Omissions (or Professional Liability) policy. While the dissent concludes that there has been no “occurrence” within ...

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7th Circuit vacates deporations to Bulgaria

“There is evidence that Bulgaria’s former communist bigwigs, quickly recycled as socialists and now busy cosying up to the United States, retain significant power in Bulgaria and continue to pursue the old vendettas against anticommunists.” Hon. Richard A. Posner Seventh Circuit Court of Appeals The Seventh Circuit on Jan. 7 issued a scathing opinion in two consolidated cases, vacating the ...

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Persecution Case Analysis

The decision does not necessarily mean that either of the immigrants will actually obtain withholding of removal. However, some of the court’s language is so strong as to suggest that it may be a foregone conclusion. For example, while the court states it is for the IJ to decide whether, if Niam is returned to Sudan, he will be tortured ...

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