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General repeater statute applies to drunken drivers

“The words ‘felony’ and ‘misdemeanor’ are only utilized in the discussion of prior convictions, not present convictions. Wis. Stat. sec. 939.62(3). By contrast, the legislature referred to ‘any crime’ in defining the present conviction under sec. 939.62(1).” Justice N. Patrick Crooks Wisconsin Supreme Court A sentence for multiple-offense drunken driving can be enhanced by both the drunken driving enhancers and ...

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Repeater Case Analysis

Both the majority opinion and dissent in this case miss the mark by failing to notice that sec. 939.62 is ambiguous. The majority concluded the statute is unambiguous, and therefore, wisely declined to even consider legislative history — any attempt to reconcile its holding with that legislative history would have unavoidably required a great deal of dissembling. The dissent, meanwhile, ...

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Court: subdivision meets public purpose doctrine

"[W]e hold that the combination of the town’s enunciated goals of creating jobs, promoting orderly growth, increasing the tax base, and preserving and conserving an environmentally sensitive area for the benefit of the citizens of the town is a legitimate and valid public purpose…" Justice N. Patrick Crooks Wisconsin Supreme Court The state Supreme Court has determined that the Town ...

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MBF joins China Alliance

John R. Sapp One of the state’s largest law firms is stepping into the Chinese market through a unique joint venture with three other law firms. Michael Best & Friedrich LLP is establishing a presence in Beijing and Shanghai in conjunction with two other U.S. firms and one from Canada. John R. Sapp, managing partner at Michael Best & Friedrich, ...

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Proposal to allow citating unpublished decisions losing ground

“My concern is that the ‘Foley and Lardners’ will have a huge advantage if citation to unpublished decisions is allowed.” Hon. William A. Bablitch Wisconsin Supreme Court Citation to unpublished decisions of the court of appeals, which had appeared to be fait accompli, is looking less and less likely to become a reality in Wisconsin, as more justices expressed disfavor ...

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Loose tiles not a structural defect

"The Rizzutos offer no evidence that the granite tiles, as they were installed originally, were unsafe. Thus, they have presented no evidence that the tiles, as installed originally, constituted a ‘structural defect.’" Judge Ralph Adam Fine Wisconsin Court of Appeals Where an elevator was renovated by attaching 20-pound granite tiles to the walls, and a tile fell, striking an occupant, ...

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Structure Case Analysis

The decision in this case is unlikely to be used as precedent in future cases, except to distinguish it. Although Rizzuto did present expert evidence that it is unsafe to use nothing more than glue to adhere 20-pound granite tiles to an elevator wall above people’s heads, it was presented only in a response to the defendant’s reply brief, and ...

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Defendants can’t assert Vienna Convention

“Nowhere in the text of the treaty can we find a statement or even a suggestion that the signatory nations intended to provide for a private right of enforcement of the provisions in the courts of the receiving states in criminal cases.” Judge Richard S. Brown Wisconsin Court of Appeals Article 36 of the Vienna Convention does not bestow a ...

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Article 36 Case Analysis

This is the first Wisconsin case to consider the Vienna Convention in a criminal context, but, as can be seen from the large number of cases cited from other jurisdictions, it is not a novel question, nor is it one that is likely to disappear. In federal court, the issue has been considered by the Seventh Circuit in several cases, ...

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Roggensack accepts Brunner's PAC challenge

“Additionally, we will challenge Judge Brunner to join us in our commitment to ask all PACs not to make any positive or negative campaign ads.” Hon. Patience Roggensack Throughout the race for state Supreme Court, Barron County Circuit Court Judge Ed Brunner has challenged his opponents to pledge not to take donations from political action committees (PACs). Friday, District IV ...

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Attorneys have no right to consult with witnesses

“It is not viewpoint discrimination to prefer prosecutors, family, and clergy over defense lawyers in a police station. The goal is not to throttle a disfavored viewpoint, but to devote the public building to the purpose for which it is maintained.” Judge Frank H. Easterbrook Seventh Circuit Court of Appeals Attorneys have no First Amendment right to consult at a ...

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Witness Case Analysis

Even though the court held in dicta that witnesses have no right to be notified that an attorney wishes to see them (and given Moran, there is no reason to think the court would hold otherwise if the issue were squarely presented), some of the issues discussed in this case are likely to return to the court. The opinion virtually ...

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Opening ‘legal mail’ does not violate right to counsel

Hon. Margaret J. Vergeront Opening an envelope addressed to an inmate, labelled “legal mail,” did not violate the inmate’s Sixth Amendment right to counsel, or procedural due process rights, the Wisconsin Court of Appeals held on Feb. 13. Lieutenant Clyde Maxwell, an officer at Fox Lake Correctional Institution, received anonymous notes stating that an inmate, Joseph Steffes, was dealing drugs ...

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Right to Counsel Case Analysis

If one were to read solely the body of this case, without looking at the footnotes, the case would appear a significant contraction of prisoners’ constitutional rights. The lengthy paragraph quoted above, discussing the Sixth Amendment, suggests that prisoners have no constitutional rights to be present when their legal mail is opened, unless it is from an attorney representing them ...

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Contractor regulations not absolute

Hon. Patricia S. Curley A home improvement contractor’s noncompliance with the regulations in ATCP 110.05 does not necessarily give the buyer the option to cancel the contract, the Wisconsin Court of Appeals held on Feb. 11. In October 2000, Richard J. & Carol J. Snyder entered into a home improvement contract with Badger-land Mobile Homes, Inc., for installation of a ...

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Home Improvement Case Analysis

Three observations need to be made concerning the decision in this case. First, no reasonable person can dispute that the decision is fair, just, and equitable. Second, the decision might be consistent with existing case law and the terms of the regulations. But third, the path the court took to reach its decision ignores both governing precedent and the plain ...

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Court considers duty to defend

"Isn’t advertising implicit in this? If they have the product, but no one knows they have the product, there’s going to be no injury. Somehow, word has to get out to the public through some form of advertising." Hon. William A. Bablitch Wisconsin Supreme Court Following oral arguments last week, the state Supreme Court is considering whether an insurance company ...

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New MU Law School dean comes from within

Joseph D. Kearney Scholar. Teacher. Practitioner. Pro bono advocate. Family man. White Sox fan. All those labels describe Prof. Joseph D. Kearney. He’s about to take on a new role: law school administrator. Kearney, 38, will become Marquette University Law School’s new dean on July 1. Kearney succeeds the late Dean Howard Eisenberg, who was widely respected among Wisconsin’s legal ...

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Worker can’t sue for pain and suffering

An injured employee suing his employer for tort damages under the dual persona doctrine cannot sue for pain and suffering if he has accepted a settlement from the employer under the Worker’s Compensation Act (WCA), the Wisconsin Court of Appeals held on Feb. 4. The court determined that prevailing on such a claim would constitute a double recovery for the ...

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Double Recovery Case Analysis

If published, as recommended by the court, the decision would likely turn the law of third-party liability in worker’s compensation cases on its head. The decision in Page is inapposite to this case. The Supreme Court emphasized, in the very first sentence of its opinion, “We are faced with one question in this review: Whether the Worker’s Compensation Act permits ...

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Suppression not remedy for arrest

Even if the stop and detention of a defendant is unlawful, by virtue of it occurring outside the police officer’s jurisdiction, suppression of the evidence is not required, the Wisconsin Court of Appeals held on Feb. 6. On Nov. 14, 2000, Officer Eric Krueger was driving a marked squad car outside his jurisdiction, when he observed a vehicle driven by ...

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Suppression Case Analysis

It has long been assumed that an unlawful extrajurisdictional action by a police officer is grounds for suppressing the evidence found as a result. Keith would not have challenged the stop otherwise, nor would the defendants in the leading cases on the issue – State v. Slawek; 114 Wis.2d 332, 338 N.W.2d 120 (Ct.App.1983) and City of Waukesha v. Gorz, ...

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Consultation doesn't create right to counsel

Hon. Richard S. Brown A police officer’s courtesy in permitting a drunken driving suspect to talk to an attorney who was present at the arrest does not implicitly suggest that the suspect has a right to counsel, the Wisconsin Court of Appeals held on Jan. 29. Therefore, the officer’s action does not justify the suspect’s subsequent refusal to submit to ...

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Implied Consent Case Analysis

The decision in this case is going to be very difficult to apply should facts similar to those in Goss occur, i.e., the officer permits a drunken driving suspect to call an attorney from the police station. As noted, when discussing the application of Goss to Verkler’s case, the court stated, "the facts in Goss are not only inapposite to ...

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Candidates discuss issues at DCBA luncheon

Hon. Patience D. Roggensack Dane County’s legal community recently had an opportunity to pose questions to Wisconsin’s three state Su-preme Court candidates. Judges Edward R. Brunner, Paul B. Higginbotham and Patience D. Roggensack offered their thoughts on abortion rights, frivolous lawsuit sanctions, the U.S. Supreme Court’s handling of Bush v. Gore and more. The Jan. 28 luncheon, hosted by the ...

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Promoting of supervisors not discriminatory

"Because the interim assignments were temporary and not accompanied by higher pay, the person discriminated against may not have had a legal basis or a practical occasion to press a lawsuit. But the victim may discover later that he has been defeated by a discriminatory series of personnel actions that effectively cloaked the identity of the decisionmaker." Judge Richard D. ...

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Promoting Case Analysis

Although the court found that Grayson was not discriminated against, the court expressed significant suspicion of the means of promotion used by the City of Chicago that could be useful to plaintiffs in other cases. In addition to the quotation above that it might be suspicious if an employer based promotions on title, even though two positions were otherwise identical, ...

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Banishment Case Analysis

Even though the court of appeals has previously upheld a banishment order in Nienhardt, the analysis in this case bears little resemblance to that case. Although the court stated, after discussing the decision in Nienhardt, "Thus, banishment is not a per se constitutional violation," there was no constitutional analysis in Nienhardt. The court acknowledged in Nienhardt that the banishment order ...

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Internet Case Analysis

Given the ubiquity of the Internet, and the growth of Internet-facilitated crime, it is noteworthy that this is the first Seventh Circuit case to consider the legality of a condition of supervised release barring Internet use without permission. Even more noteworthy is the degree of the court’s vehemence against sentencing courts imposing such a condition. Of course, this is a ...

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