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Court adopts broad definition of ‘school staff’

“While we share Kaster’s and the trial court’s concerns that interpreting this phrase to include delivery persons or ushers at sporting events might not be precisely what the legislature intended by creating Wis. Stat. sec. 948.095, this problem is for the legislature, not us, to remedy.” Judge Thomas Cane Wisconsin Court of Appeals Any person who provides any services to ...

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School Staff Case Analysis

It is reasonable to think that, even if the court had found the statute ambiguous, it would have affirmed the conviction of Kaster. As the court noted, regardless of when his formal duties as coach may terminate, the contract plainly provided it was for the entire school year. However, it is obvious that the court’s interpretation goes far beyond what ...

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Child abuse investigation held unconstitutional

Section 48.981(3)(c)(1) is unconstitutional to the extent it authorizes government officials to conduct an investigation of child abuse on private property without a warrant, probable cause, consent, or exigent circumstances, the Seventh Circuit held on April 16. Nevertheless, the court found that officials who conducted such an unlawful investigation are entitled to qualified immunity, because reliance on the statute was ...

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Investigation Case Analysis

It should be expected that the most frequent applications of this decision will not be in civil rights actions in federal court, like this case, but in state court, where defendants attempt to use it to suppress evidence against them. A number of hurdles await defendants who attempt to do so. First and foremost is whether Wisconsin courts, which are ...

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Doctor can be forced to testify as expert

“Understanding that the ‘particularly harsh sanction’ of dismissal would inevitably follow from acceding to Dr. Koh’s wishes, Judge White reasonably exercised discretion in ordering his testimony and denying Dr. Plante’s motion to dismiss.” Judge Charles B. Schudson Wisconsin Court of Appeals Where refusing to compel a doctor to testify as an expert would result in dismissal of the plaintiff’s case, ...

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Expert Testimony Case Analysis

For all of the ample reasons stated by Judge Curley in her dissent, this decision was clearly decided incorrectly, and it should be expected that, if published or reviewed by the Supreme Court, it will ultimately be overruled. An additional ground for reversal is the majority’s failure to appreciate the difference between direct and collateral consequences. The court repeatedly referred ...

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IOLTA remains in place

"Under our rules, the client then makes a claim, it’s reviewed, they can then be paid their interest from the IOLTA funds. They can be made whole.” Patricia K. Ballman State Bar President The U.S. Supreme Court ruling upholding the use of Interest on Lawyer Trust Account (IOLTA) programs is good news for Wisconsin legal service groups, which receive more ...

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Non-techies can dazzle ‘em with technology

Image of chad displayed as part of PowerPoint presentation which Fred H. Bartlit Jr. gave during the Florida presidential election trial. To all you trial lawyers: You’re NOT using PowerPoint, or some other evidence presentation software? You’re not alone. At the American Bar Association’s TechShow 2003 in Chicago earlier this month, in a room of more than 100 attorneys attending ...

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Senate considers adopting Daubert

“Jurors are like computers; garbage in, garbage out.” J. Ric Gass The Wisconsin Senate’s Committee on Judiciary, Corrections and Privacy held a public hearing on April 9 on a bill that would amend Wisconsin’s rules of evidence to make expert testimony subject to the same requirements as in federal court. 2003 Senate Bill 49, proposed by Sen. Robert Welch, would ...

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Zoning/Platting distinction abolished

“Any regulation relating to the ‘quality’ of a subdivision must necessarily consider the ‘most appropriate use’ of land. We cannot fathom how an ordinance can consider the most appropriate use of land if it cannot consider the use of land.” Justice Ann Walsh Bradley Wisconsin Supreme Court The Wisconsin Supreme Court held on April 11 that Chapter 236 authorizes a ...

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Zoning Case Analysis

Effectively, the decision in the case at bar does exactly what Justice Prosser says — gives municipalities authority to downzone land by use of its extraterritorial subdivision powers. A property owner can still challenge a platting decision that usurps zoning powers by asserting the Takings Clause, but, as can be seen from Hoepker v. City of Madison Plan Comm’n, 209 ...

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Standing Case Analysis

There is a reason that the court made its holding on the standing issue as though it were a matter of undeniable common sense, rather than citing precedent to support it — no such precedent exists, either in the Seventh Circuit or the United States Supreme Court. The entirety of the court’s reasoning consists of three sentences: “Haywood was not ...

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Appeals judge moves to Supreme Court bench

Hon. Patience Roggensack Having served on the District IV Court of Appeals, Pat Roggensack is no stranger to the Supreme Court courtroom. That’s where her Madison-based appellate court hears its oral arguments. Come August, Roggensack will have a new perspective from that bench as she joins six other Supreme Court justices. Roggensack garnered 51 percent of the votes in the ...

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Unlicensed driver has no standing to contest search

“Haywood should not have been driving any car, much less a rental car that Enterprise never would have given him permission to drive. As a result, Haywood’s expectation of privacy was not reasonable.” Hon. Terence T. Evans Seventh Circuit The driver of a rental car who lacks a valid driver’s license has no standing to challenge the legality of a ...

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BOG discusses amicus issue

“I felt very strongly that the Executive Committee was not only authorized, but required, to consider member feedback before deciding whether to move forward.” Patricia K. Ballman Members of the State Bar’s ruling body engaged in a lengthy discussion March 21 over the Executive Committee’s decision not to join an amicus brief in a case against the University of Michigan ...

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Client must reimburse attorney for appraiser’s bills

Hon. Paul Lundsten A client is liable to her attorney for the bill of an appraiser retained by the attorney in the client’s action, the Wisconsin Court of Appeals held on March 27. Attorney Patricia Heim, of Parke O’Flaherty, Ltd., in La Crosse, was retained by Patricia M. Knuth to represent her in a divorce action. They entered into a ...

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Expenses Case Analysis

As an appeal from a small claims action decided by one judge, the decision cannot be published and is of no precedential value. Inasmuch as it concerns an issue as important as attorneys getting reimbursed for their expenses, however, it is obviously noteworthy. If there is any client in the world worse than one who won’t pay his attorney’s fees, ...

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‘No reasonable use’ necessary for variance

“The purposes of zoning laws demand that variances be granted sparingly and only when the applicant has demonstrated that he or she will have no reasonable use of the property, in the absence of a variance.” Judge Harry G. Snyder Wisconsin Court of Appeals For a property owner to obtain any variance from a shoreland ordinance, he must show that ...

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Variance Case Analysis

If the decision in this case is any indication, judges and attorneys may soon be longing for reestablishment of the use and area variance distinction. The two opinions in this case run to 59 paragraphs, and still manage to confuse the law, while the decision could easily have been written in a three paragraph summary opinion, if only Wisconsin still ...

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‘Probably’ is enough to prove causation

“While we find these bright-line tests useful in establishing important factors to be considered within our pre-existing causation framework, we decline to adopt a bright-line rule regarding causation for fear of over-simplifying such a complex issue.” Hon. Patricia S. Curley Wisconsin Court of Appeals Causation in asbestos cases must be decided on a narrow case-by-case basis, the Wisconsin Court of ...

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Asbestos Case Analysis

Because of the diverse citizenship of defendants in asbestos litigation, which frequently entails many defendants, forum selection is always an important consideration for parties. Parties thus need to look at this decision, and evaluate whether Wisconsin state courts are a favorable jurisdiction to be in, relative to other courts. Unfortunately, the court examined case law from very few other jurisdictions ...

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BOG defeats pro bono reporting

“All we are doing is gathering information to find out what people are, or are not doing.” Earl H. Munson Jr. The State Bar Board of Governors has voted down a proposal that would have petitioned the State Supreme Court to implement mandatory pro bono reporting. During Friday’s meeting, the board voted 30-6 against the proposal, which came from the ...

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Both Supreme Court candidates will emphasize experience

“The public is better served by a clear unanimous rule of law. Appellate judges need to ask, ‘how can we best let the public understand, the next time this issue arises, on which side they fall.’” Hon. Patience Roggensack The two remaining candidates for the Wisconsin Supreme Court, Barron County Circuit Court Judge Edward R. Brunner and Wisconsin Court of ...

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Veteran judge 'will be missed'

Hon. Marianne E. Becker Waukesha County Circuit Court Judge Marianne E. Becker is remembered for bringing compassion and dedication to the bench. Becker, 61, died March 10 after suffering a stroke one day earlier. The 18-year veteran was in the midst of running her fourth campaign for the bench. She was the first woman elected to the Waukesha bench. “She ...

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Judges can't prohibit home monitoring

“The legislature has left county jail oversight to the sheriff, and the trial court’s decision to prevent home monitoring when jail time is ordered as a probation condition interferes with those responsibilities.” Judge Thomas Cane Wisconsin Court of Appeals A circuit court may not prohibit a sheriff from granting home monitoring to a probationer ordered to serve jail time as ...

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Home Monitoring Case Analysis

The decision marks the death knell for “straight-time” sentences, in which circuit courts order that the sheriff not permit a defendant to serve his time on home monitoring. As common as such orders are, the decision is not unexpected. As the court noted, it declined to address this issue in Eastman. However, it also added in dicta in that case, ...

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Other acts admissible in predator action

“The evidence was not offered to show Franklin’s character trait in order to draw the inference that he acted in conformity with that trait on a previous occasion. Rather, the evidence was offered to prove an element of the State’s case — that Franklin was a sexually violent person.” Judge Patricia S. Curley Wisconsin Court of Appeals The admission of ...

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Other Acts Case Analysis

The decision in this case, combined with the decision in Wolfe, invariably will mandate that what traditionally is called "other acts evidence" is admissible in Chapter 980 actions. Nevertheless, the decision in this case, if published, will create a conundrum for prosecutors and judges in dealing with respondents’ Rule 904.04(2) objections. Even the terminology to be used will be problematic. ...

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Admitting too many priors harmless error

“This appeal involves the difference between two convictions and five convictions, a difference that we conclude was too slight to have contributed to the jury’s verdict.” Judge David G. Deininger Wisconsin Court of Appeals Although it was error to permit three 25-year-old convictions to be used to impeach a defendant’s credibility, the error is harmless when the defendant could properly ...

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Impeachment Case Analysis

The decision is a good candidate for further review in the Wis-consin Supreme Court for a couple of reasons. First is the court’s rejection of the U.S. Supreme Court’s reasoning in Ohler. Given the decision in Vanlue, which the court of appeals cannot overrule, the court had no option but to reject Ohler. Nevertheless, its reasoning is ultimately inconsistent with ...

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