Judge Sumi’s opinion is straight forward.  The logic of her reasoning is spelled out in the topic headings contained in the opinion’s table of contents.  I paraphrase:

It is within the scope of judicial responsibility to review legislative action for compliance with statutory and constitutional requirements.  The Open Meetings Law presumes that all governmental meetings will be open and subject to notice requirements.  Legislative proceedings are not exempted from the requirements of the Open Meetings Law.  Therefore the legislature must comply with the same Open Meeting rules that apply to other governmental entities.  The evidence at trial demonstrated that the March 9, 2011 meeting did not comply with the Open Meetings Law.  The Open Meetings Law authorizes the court to void actions undertaken in violation of the law’s terms, where the court finds that the public interest does not counsel in favor of sustaining the action.  There is no public interest in favor of sustaining the act taken here, especially since the provisions of 2011 Wisconsin Act 10 can easily be re-enacted by the legislature if it so wishes (provided that any legislative re-enactment complies with the requirements of the Open Meetings Law).

Reading through this summary, one might wonder what all the fuss is about.  Each step in Judge Sumi’s reasoning is supported by citations to statutory language, precedent, and/or evidence adduced at trial. None of the legal principles underlying Judge Sumi’s opinion are novel or controversial.  In fact, for evidence that her opinion is nothing more than mainstream legal analysis, one need look no further than to the multiple citations to Marbury v. Madison, that most “bedrock” of all bedrock cases. 

A great deal of sloppy lawyering has been put forth over the past several weeks in an attempt to create the impression that Judge Sumi is an out of control jurist.  Some of the bill’s advocates are guilty of cherry picking statutory provisions that they deem helpful, while conveniently ignoring contrary provisions.  Others have purported to rely upon sixty year old Wisconsin Supreme Court precedent, without first considering whether later statutory changes and constitutional amendments have rendered that precedent obsolete.  Dicta from the more recent Milwaukee Journal-Sentinel case was relied upon by others in order to support the idea that the Legislative Reference Bureau had the authority to “publish” laws, however these same partisans ignored the holding of that same case when it proved inconvenient on the question of the jurisdiction of the court.  Some advocates appeared willing to sacrifice basic principles of Administrative Law, if so doing would advance their argument that the law had been “published.”

In today’s newspaper we read that the State Attorney General’s Office has even gone so far as to allege that Judge Sumi has exhibited a “bias” in this matter on the grounds that she submitted a brief to the Wisconsin Supreme Court in defense of her exercise of jurisdiction in this case.  It is exceedingly odd to argue that a judge’s defense of her decision to excercise jurisdiction is somehow a reflection of bias towards the merits of a case.  I was a corporate litigator in a previous life, and I certainly understand the hard-nosed litigator’s attitude of “Just Win, Baby.”  However, the Attorney General’s Office is not a private litigator who is entitled to employ whatever aggressive tactics might advance the interests of his client.  To the contrary, the duty of the Attorney General’s Office is to “do justice,” not to do whatever it takes.

For doing her job, Judge Maryann Sumi has been subjected to specious attacks on her character and competence.  Every sitting judge in Wisconsin must be watching this case with great interest.  Every judge in the state has to be wondering, ”Will I be subjected to the same attacks, simply if I get assigned a case that requires the two political branches to comply with the rule of law ?”

As a member of the State Bar of Wisconsin, I am an officer of the court.  I commend Judge Sumi for doing her job, for staying focused on the issues before her, and for ignoring the personal attacks and distractions that have been directed her way.  She has done her job, and done it well.  Now the focus turns to the Wisconsin Supreme Court.  I hope that they stay focused on their job as well.

Right now, however, we are in a state of nature, legally speaking. Case law under the relevancy test, the current standard, is of little avail. And while the new rules are copied from the federal rules, state courts are not bound by federal precedent (yes, that includes Daubert itself!). Last week alone I spoke at two conferences, one a large, attentive gathering of state judges in Elkhart Lake and the other an even larger, equally engaged joint convocation of state prosecutors, public defenders, and private defense counsel here at Eckstein Hall. There is a clamor for answers and a discernable unease about what to do.

In both settings I greatly benefited from my participation on a panel just a week earlier on April 7, 2011 at the annual meeting of the Eastern District of Wisconsin Bar Association in Milwaukee. The panel was entitled “Daubert Today: A Standard for All Wisconsin Courts.”  Organized by Matthew W. O’Neill (of Friebert Finerty & St. John) and moderated by Dean Joseph D. Kearney of Marquette Law School, the panel also consisted of two seasoned federal civil litigators and two federal judges (and me). Let me briefly summarize some of their more salient points.

Ralph A. Weber, a Marquette adjunct professor and partner in Gass Weber Mullins LLC, sees the new rules as a substantial improvement over the “trial-friendly” rules that preceded them precisely because they empower trial judges to exclude unreliable expert testimony. Ralph hopes that trial lawyers and trial judges take the new rules seriously, suggesting that evidentiary hearings and even expert witnesses on reliable methodologies may be in order. One problem, though, is that the state legislature did not mandate that expert witnesses submit reports that conform with Fed. R. Civ. Pro. 26, which is designed to foster Daubert scrutiny.

My Marquette colleague Rick Esenberg (formerly of Foley & Lardner), also an experienced civil litigator, thoughtfully underscored the contingency of the new rules.  Rick noted that their effect on litigation is dependent (“it depends”) on a variety of factors, including especially Wisconsin’s “trial friendly” legal culture. Old habits are hard to break. Moreover, state judges simply do not have the resources available to federal courts when closely scrutinizing expert opinion testimony. Rick also brought up the proscription against ipse dixit (“because he said so”) testimony, the bane of the Seventh Circuit, whereby parties offer well-credentialed witnesses who rely more on inflated (my word) resumes than tested methodologies or proven protocols.

We then turned from the panel’s lawyers to the judges. Judge Rudolph T. Randa, a federal district judge with substantial state judicial experience as well, also addressed the ipse dixit problem, noting the Seventh Circuit’s close scrutiny of such testimony and that some lawyers blur relevancy concerns (the “4s” in the FREs) with the assistance standard (the “7s”). Acknowledging that much of Daubert lore is caught up in how to establish reliable methods, etc., Judge Randa emphasized the equally significant problems that arise when expert witnesses are ignorant of the underlying facts of the case.

Finally, federal magistrate judge William E. Callahan, Jr., spoke of the numerous Daubert challenges he has confronted over the years. Judge Callahan emphasized that nothing in the Daubert case law, or the rules themselves, require an evidentiary hearing. Nonetheless, they are difficult motions that require study by the judge, so counsel should consider pretrial motions, which may be based on “paper” (e.g., dueling affidavits, depositions, expert reports). Judge Callahan forecasts that Wisconsin trial judges will conduct more pretrial hearings on experts than they did under prior practice, especially in connection with summary judgment motions and in the absence of a Rule 26-type reporting requirement.  Finally, he cautioned against the overuse of expert witnesses, reminding those in attendance that not all such witnesses provide meaningful assistance to the court.

Wisconsin law does not permit same-sex couples adoptive rights; only one parent is the “legal parent.” The court justified its decision on the basis that Wisconsin law defines a “parent” as only the biological or adoptive parent. Wendy is neither of these and thus, at least under the law, not a parent at all.

This leads to questions that are more cultural than legal (though still legal, yes). How do we define parent? How do we define family? The Supreme Court has spoken to these questions, though not in the terms at issue here.

In Stanley v. Illinois, a man lost his parental rights because he was not married to his children’s mother. Stanley and his girlfriend lived together on and off for 18 years and had three children together. When she died, Illinois law commanded the children become wards of the state because their father was not married to their mother. His actual fitness to be a parent was irrelevant. (Familiar yet?) The United States Supreme Court held that the Illinois law violated Stanley’s right to due process of law by taking his children without a hearing to determine his fitness. The law allowed Illinois to circumvent the neglect hearing process because Stanley was not married to his children’s mother. The Court wrote,

Procedure by presumption is always cheaper and easier than individualized determination. But when, as here, the procedure forecloses the determinative issues of competence and care, when it explicitly disdains present realities in deference to past formalities, it needlessly risks running roughshod over the important interests of both parent and child. It therefore cannot stand.

Stanley, 405 U.S. 645, 656-57 (1972). In many ways the Stanley case is distinguishable and probably even unreliable—the case is, after all, nearing it’s 40^th birthday and has some questionable history (though it remains good law).  But the Court’s reasoning does suggest that “past formalities” and “presumption” cannot be the basis for denying an unwed father his parental rights (which the Court has protected stringently). Is that really so different from saying that because of the presumption that a same-sex couple is illegitimate, unfit, or other similar reasons, the non-biological or non-adoptive parent is not a parent at all? Really, that’s what Illinois was saying to Stanley by operating on the presumption that most—if not all—unwed fathers are unfit: that he’s not a parent at all.

Though “past formalities” dictate a certain family structure, one ought to be careful in assuming the modern family structure is a long-standing phenomenon; it’s not. It’s relatively new in the span of American history and newer still in the span of human history. The mother, father, 2.5 children structure simply wasn’t practical before the Industrial Revolution allowed it to be so.*  I’m not suggesting that people didn’t live this way, only that the word“family” and those responsible for childcare encompassed a much wider breadth of people than those who fit this pattern. Nuclear, insular families are a rather modern phenomenon, though we’ve latched on to that picture and understanding with formidable might.

In any case, if we allow “past formalities” to rule rather than paying attention to “present realities,” our law fails to keep up with our society. Like Illinois presumed Stanley was an unfit father because he was unmarried, there exists a presumption that same-sex couples are inherently unfit to raise children and that the non-biological/ adoptive parent isn’t a parent at all.  Wendy, then, isn’t just unfit to be a parent; she’s not a parent at all. And unfortunately, the people who suffer most from this unjust presumption will be her children.

*For discussion of construction of the modern family structure in America, see Elaine Tyler May, Homeward Bound: American Families in the Cold War Era (Basic Books 2008).

I spoke briefly with Pat yesterday on the potential fallout from the case and he quoted part of what I said. (The tyranny of 800 words is best understood by those who must submit to it.)

Here’s a more expanded version.

I don’t know how broad Judge Randa’s holding is. The defendant in the case before him did not itself manufacture lead paint pigment but purchased a company who had and assumed its liabilities. It is unclear whether Judge Randa would have reached the same result for a company that had itself participated in the market. The sense I get from his opinion is that he would have, but, for now, we don’t know that.

A decision limited to successors in liability would have limited effect, but, without getting into the merits of Judge Randa’s decision (I’ll do that later), let’s assume that it means that Thomas id flat out unconstitutional. The federal constitution trumps the common law determinations of even the highest state courts.

But here’s where it gets sticky. State courts are not required to follow the decisions of lower federal courts on questions of federal law. Because the Thomas Court did not consider the precise question reached by Judge Randa (they said it was not “ripe” because the defendants had not yet been found liable for any damages), it is still an open question. Lower state courts might agree with Judge Randa. They might not. If Judge Randa’s decision is affirmed by the Seventh Circuit (also a “lower” federal court) all federal judges in the Wisconsin will follow Judge Randa.

Thus, as Pat writes, we may have an extended period of time in which the Thomas is applied in state court but not in federal court. That period of uncertainty could only be definitively resolved by a decision of the United States Supreme Court, although a decision by the Wisconsin Supreme Court – if not reviewed by SCOTUS – would resolve it as a practical matter if it found that Thomas does violate the federal constitution.

And, here we have another twist, the Wisconsin Supreme Court is not the same court that decided Thomas. This may eventually present an opportunity for the Court to abandon Thomas without directly overruling it.

Cross posted at Marquette University Law School Faculty Blog

By my last count, only nine states have adopted GFFD in employment contracts. Though the type of GFFD implied in employment contracts varies, the most common form involves a situation where an employee’s justified expectations to pay or benefits are frustrated by an arbitrary employer action (like an out-of-the-blue firing).

Well, Wisconsin might be the tenth state to recognize such a GFFD in employment in the case of Phillips v. US Bank (Wisconsin Ct App 02/02/2010), though the Wisconsin Appellate Court was careful not to call it that.

From Ross Runkel’s Employment Law Memo:

Phillips sued the employer, alleging that the employer discharged her in order to avoid paying promised benefits.  Although the benefits were described as having accrued, receipt of the benefits was contingent on continued employment.  The trial court granted summary judgment in favor of the employer.  The court reversed.

The court noted that an employer is not obligated to act in “good faith” when exercising its right to discharge an at-will employee.  The court concluded, however, that “an at-will employee does not forfeit benefits that have accrued during his or her employment even though the agreement governing those benefits conditions their receipt on the employee’s continued employment[,] if the employer fires the employee solely to prevent the employee from getting the accrued benefits….”  The court observed that, although an employer need not comply with “good faith” in discharging an at-will employee, “an employer must comply in good faith with its ‘contractual obligations.’”  The court applied agency principles in arriving at its decision.

I’m not sure I understand the distinction the court makes between exercising good faith in discharging an employee versus discharging a contractual obligation, but for me if it walks, talks, and acts like a duck, it’s a duck. Welcome to the good faith in employment club, Wisconsin.

The concept of a constitutional right to counsel in certain civil cases is often referred to as “Civil Gideon,” after the Supreme Court decision that established the right to counsel in criminal cases, Gideon v. Wainwright. Critics charge that recognizing a civil version of the right established in Gideon will cause “waste” by increasing litigation. A recent Wall Street Journal law blog post quoted Ted Frank, for instance: “What is clear is that you will never have a simple eviction because every single one of them will be litigated. . . . The rest of the poor will be worse off because of that.”

I guess “waste” is in the eye of the beholder. As a student noted on another blog,

While I understand the drawback of added litigation, I’ve never found it to be particularly persuasive enough to override a law aimed at a greater level of fairness and justice. In most custody cases, an agreement is more likely reached when the party who can afford an attorney bullies the other party into signing something. As for eviction cases, I believe that at the end of a notice period, a landlord must file an eviction case with the court anyway to have the eviction legally recognized. Moreover, the American judicial system can be overwhelming, confusing and inevitably adversarial. While many civil parties successfully file suits pro se, I think it is fair to say that they often lack the knowledge and skills to successfully plead a case.

Indeed, it seems beyond dispute that pro se litigants are, on average, overwhelmingly disadvantaged by lack of representation.

For instance, the final report of the Access to Justice Committee of the Wisconsin State Bar in 2007 cited research establishing that unrepresented litigants were dramatically less successful in Equal Rights Division hearings on probable cause:

[T]he Equal Rights Division of the state Department of Workforce Development tracks outcomes in probable cause hearings and found that complainants with counsel are successful more than 42% of the time while complainants without are successful only 17% of the time. In a probable cause hearing, the ERD determines whether there is enough believable evidence of job discrimination to let the case move forward to a hearing on the merits. Judges in Rock County reported a similar disparity in outcomes in cases involving domestic abuse injunctions. Large numbers of abuse victims who are unrepresented give up before the case comes to a final hearing. Abuse victims who are represented regularly appear and most often prevail. Judge James Daley observed, “I doubt that this circumstance is the result of [a] chang[e of ] mind[] or that the abuse complained of in the petition stops.”

Likewise, statistics show that immigrants who are represented by counsel stand a greater chance of avoiding deportation, on average. Specifically, according to a report from Minnesota Advocates for Human Rights (reporting to the United Nations, on the United States’ compliance with its international obligations to protect civil and political rights), the Executive Office of Immigration Review’s own statistics for the years 2002 through 2006 demonstrate that

in cases involving represented, non-detained immigrants, 34 percent secured relief; but only 23 percent of unrepresented, non-detained immigrants received relief. Similarly, in cases involving represented detained immigrants, 24 percent secured relief as compared with only 15 percent of their unrepresented counterparts. More pronounced disparities appear in political asylum cases: 39 percent of represented, non-detained asylum seekers received political asylum compared with 14 percent of unrepresented, non-detained asylum seekers; 18 percent of represented, detained asylum seekers were granted asylum, compared to three percent of unrepresented detained asylum seekers. [footnotes and citations omitted, and emphasis added]

In other words, not only do represented immigrants have a better chance of avoiding deportation, that advantage is greatest in some of the most critical cases: aliens in detention and aliens seeking refuge from persecution.

Similar examples abound. The Brennan Center’s Civil Right to Justice web pages document, for instance, the “crisis in legal representation” arising out of the current foreclosure crisis. Wisconsin courts have seem a sharp uptick in foreclosure filings: last year was a record-setter for Wisconsin foreclosure actions, with more than 25,000 actions started, and this year (according to the Law School’s foreclosure mediation program web page) is on pace to pass that record.

Imagining our courts swamped with foreclosure actions suggests another potential benefit of civil Gideon: maybe access to counsel would improve not only fairness but also efficiency? Rather than promoting wasteful litigation, lawyers might help people present their claims more clearly and effectively. They might even convince some who lack a genuine defense to give up the legal fight. (In a similar vein, the National Coalition for a Civil Right to Counsel links to a number of different studies and reports tending to show economic and social benefits resulting from the provision of civil legal aid for the critical legal needs of those who can’t afford attorneys.)

Well, as so often seems to be the case, I have no tidy ending for this post. I just wanted to draw together in one spot various news items and blog posts that had recently caught my attention, at a moment when the question of fairness in critical legal proceedings seems to be on many minds. As always, I welcome your comments and criticisms.

             The presentations spanned a broad array of issues and problems regularly confronted in civil litigation.   The strength of the presentations rested not just in their discussion of doctrine and rules, but in the panelists bringing to bear their experience and insights in preparing and trying cases.   Links to the written CLE material and the accompanying PowerPoint presentations will be posted on the Law School’s website later this week.

             Starting the day was Michael J. Cohen (L’86) of Meissner Tierney Fisher & Nichols SC, who underscored the important relationship between pretrial practice and outcomes at trial.  Drawing on his extensive experience as a commercial litigator, Mike addressed the duty to preserve evidence, especially electronic information, when a lawsuit appears on the horizon.  Mike emphasized the need to work with the client to understand what the law requires so that discoverable information is not destroyed, inadvertently or otherwise, thereby exposing the client (or counsel) to sanctions.  Pat Dunphy (L’76) of Cannon & Dunphy SC, addressed a different aspect of pretrial practice, namely, the creative use of requests to admit during discovery.  Pat described how he used requests to admit to obtain a binding judicial admission in a major product liability case that proved determinative of its outcome.

             Turning from the pretrial to the trial setting, the Hon. Patricia J. Gorence (L’77), a federal magistrate judge in Wisconsin’s Eastern District, spoke about the management of exhibits at trial.  Judge Gorence particularly emphasized some of the issues that arise in the use of electronic exhibits of various sorts, including the introduction of e-mails, website pages, and CGI animations.  Lynn Laufenberg (L’75), of the Laufenberg Law Group SC, then undertook the Herculean task of providing an overview of state law governing the admissibility of expert opinion testimony.  Lynn’s masterful lecture featured his own experience in working with a wide variety of experts, including a seasoned dairy farmer who turned out to be the critical witness in a stray voltage case.

             Leading the afternoon session was one of Wisconsin’s most accomplished women trial attorneys, Mary Lee Ratzel (L’81), of Peterson, Johnson, and Murray SC.  Drawing upon her considerable experience in defending complex civil cases, particularly medical malpractice actions, Mary Lee took up a variety of important issues related to expert testimony, including Wisconsin’s unique expert witness privilege, an expert’s reliance on inadmissible evidence, experts whose opinions “shift” between discovery and trial, and the use of learned treatises at trial.  Her partner, James T. Murray (L’74) then surveyed the law governing the lawyer-client privilege.  Jim focused attention on recurring problems regarding inadvertent disclosures by lawyers, the uncertain contours of the privilege where the client is a corporation, and the sticky problem of contacting employees, officers, and ex-employees of a corporate entity.  Closing the day was Timothy S. Trecek (L’93), of Habush, Habush & Rottier SC, who discussed two subjects that haunt personal injury litigation in particular: the collateral source rule and the admissibility of “other accident” evidence.  Tim addressed recent developments in litigation that have unsettled the long-standing rule that a tortfeasor cannot reap the benefits that might accrue to the plaintiff when, for example, a hospital accepts an insurer’s payment for less than the amount of its invoice.  Tim also skillfully laid out the intricate evidentiary steps required when lawyers want to put in proof of other accidents in order to prove causation, notice, or the existence of defects in a product.

             Next year’s conference will feature a docket of similarly stimulating issues and distinguished lawyers.  We have the good fortune to draw from the very deep well of Marquette trial lawyers to assist us.

In Coulee Catholic Schools, the Court was asked whether a first grade teacher in a Catholic school was subject to the “ministerial exception,” meaning that the school’s religious freedom to select its own ministers and leaders barred her age discrimination claim. Half the courts in the country that have considered this question concluded that a religious school teacher is engaged in sufficient ministry to be included, while half have said that such a teacher is not. The Wisconsin Supreme Court decided that the religious school teacher in this case did engage in and lead sufficient religious activities to fall within the exception.

As the product of seven years of Catholic primary school, and the son of a longtime Catholic schools teacher, I’m convinced the Court got this determination right. Catholic school teachers lead prayer, organize Mass, teach the Catholic faith, model a moral and devout life, and incorporate religious principles into the “secular subjects” they teach as well. A religious organization should have the religious freedom to select those who communicate its faith to the rising generation free from state interference.

In addition to Professor Esenberg’s observations, let me highlight three other key points from the case:

1. Robust Religious Liberty Protection in Wisconsin. The majority’s discussion of the Wisconsin Constitution, Art. 1, Sec. 18 in paragraphs 58-66 describes a very strong protection for the free exercise of religion and conscience in Wisconsi, following the Court’s precedent in State v. Miller. Looking at the text of the clauses, the Court concludes, “It is difficult to conceive of language being stronger than this.”

This language could be important in future cases.  For instance, if future challenges were filed in the health care conscience context after the Compassionate Care for Rape Victims Act or the Madison Surgery Center decision.

2. An emphasis on constitutional text. Since the mid-1970s, the Wisconsin Supreme Court has relied heavily on legislative and popular history when interpreting the Wisconsin Constitution. In this case, the majority cited the standard three-factor test from Beno, but emphasized the importance of text as the first and foremost source. I have been working on a law review article regarding interpretation of the Wisconsin Constitution (more on that soon), and this decision definitely represents a positive step towards a more text-based interpretive method.

3. Elections matter. Justice Gableman wrote the majority opinion in this 4 to 3 decision. It’s quite probable that if Justice Butler were still on the Court, the decision would have gone the other way. As the Wisconsin Family Council noted on its blog, the closing paragraphs of the majority opinion contained an important line: “As a court, our job is to interpret and apply the law the people adopt, not to make it up in accord with ours or society’s current policy preferences.”  This rings especially true when placed alongside Justice Ziegler’s concurrence last week in VFW Post 2874.

WISCTV.com is reporting that the State of Wisconsin is close to passing a bill that would permit compensatory and punitive damages for violations of the Wisconsin’s state employment discrimination law:

A bill designed to stiffen penalties for employer discrimination passed the state Assembly on Wednesday, [April 29th].

The bill requires companies that discriminate against their workers to pay compensatory and punitive damages. This is a step above the current law, which lets the state order companies to rehire workers and pay back pay, along with attorney fees. This bill applies to employers who discriminate based on race, gender and other factors.

Democratic supporters say this bill punishes discrimination, while Republican critics say it will increase lawsuits and hurt businesses.The bill now goes to Gov. Jim Doyle for his signature as both the state Senate and Assembly have both approved it.

Actually, this amendment to the Wisconsin law is consistent with what happened to federal Title VII law after passage of the Civil Rights Act of 1991 (CRA of 1991). 

Under that law, Congress for the first time permitted compensatory and punitive damages for cases of intentional discrimination. However, such awards were limited by damage caps depending on the size of the employer.  Similarly, damage caps are part of the Wisconsin bill.

So, although this bill was opposed by Republicans, it really does nothing more than make Wisconsin anti-discrimination law parallel to federal law in this area.  And FWIW, the federal experience does not suggest that lawsuits have increased dramatically or businesses have been hurt for this reason. If anything, potential employment discrimination plaintiffs continue to find it difficult to access the justice system because of lack of competent counsels who understand the significant procedural and substantive difficulities in this area of the law.

Today the Wisconsin Supreme Court accepted three new cases for review, two criminal cases and one civil case.

One of the criminal cases, State v. Smith, 2008AP1011, asks the court to determine whether the sex offender registration statute, Wisconsin Statute section 301.45, is unconstitutional in its application to a defendant whose crime, false imprisonment of a minor, concededly had no sexual component whatsoever.  The Defendant Smith was convicted of falsely imprisoning a minor in connection with a drug crime.  That conviction triggered application of the sex offender registration requirements in section 301.45.  Smith did not register, and was charged with failing to register as required.  He argues that the sex offender registration requirement violates his due process and equal protection rights because his crime had no sexual component.

The Defendant in the other criminal case, State v. Allen, 2007AP795, argues that, even though he did not respond to his postconviction counsel’s no-merit report, his claims that his pretrial counsel was ineffective should be heard in a new postconviction motion.  Allen argues that he should have a chance to file this additional postconviction motion because his postconviction counsel was ineffective in failing to raise the issues regarding the pretrial counsel’s ineffective assistance.  In an unpublished decision, the court of appeals rejected Allen’s argument, pointing out that Allen had the chance to make these arguments in response to the no-merit report.

In the third case, a civil matter, Colleen Pawloski, who suffered a dog bite from a dog owned by a man named Walter Waterman, is suing Nancy L. Seefeldt and her husband, and their insurer, because they owned the home where Waterman resided with his dogs at the time the bite occurred.  See Pawlowski v. American Family Ins., 2007AP2651. The circuit court held that Seefeldt could not be liable because at the instant when the dog bit Pawlowski, Seefeldt was not its “keeper” because its owner, Waterman, was the one “exercis[ing] dominion” over the dog. The court of appeals reversed, holding that Seefeldt was the dog’s “keeper” at the time of the bite, because she was providing it a home.  The Supreme Court is asked to resolve this question of interpretation of the dogbite statute, Wisconsin Statute section 174.02.

The first case, State v. Henley, 2008AP697, presents an interesting issue regarding the authority of the courts of appeal, or the supreme court, to grant a new trial to a criminal defendant in the interests of justice, without regard to the passing of the time for appeal.  As Judges Vergeront, Lundsten, and Bridge explained in their certification of the questions in the case,

This case is significant because the circuit court has granted a form of relief that does not appear to have been recognized previously in Wisconsin law. There is no authority cited by the parties, and none that we know of, that expressly permits a circuit court to grant a new trial in the interest of justice after the time for direct appeal under WIS. STAT. RULE 809.30 has passed. If such a remedy is available, it has implications for finality of criminal convictions and for the interplay with other forms of postconviction relief, such as WIS. STAT. § 974.06. However, availability of this remedy would also improve the ability of courts to consider unusual circumstances and do what justice requires in individual cases. These competing concerns are implicated in the entire series of legal issues discussed in this certification.

The issues in the next case, State v. Carroll, 2007AP1378, surround whether police violated the defendant’s rights in obtaining photographic evidence from his cell phone. 

The next case, Ehlinger v. Hauser, 2007AP477, arose from a business dispute regarding a disability buyout provision that was invoked after one of the principals in the shared business developed Parkinson’s disease. The court of appeals determined that the buyout provisions were unenforceable but that the circuit court properly exercised its discretion in determing that the shared business could pay the litigation expenses of the party who had been seeking the dissolution.  Both parties are dissatisfied with the outcome in the court of appeals, so the case includes a petition and a cross-petition.

In the next case, State v. Arends, 2008AP52, the court has been asked to clarify certain procedural questions presented by section 980.09 of the Wisconsin statutes, regarding committment of a sexually violent person. 

In the next case, State v. Fischer, 2007AP1898, also criminal, the court of appeals affirmed a circuit court order to exclude the testimony of a defense expert regarding his blood alcohol level, when the defense expert relied in part on results of a preliminary breath test (results that are not admissible at an OWI trial). The petition asks the court to decide whether the exclusion of the expert testimony violated Fischer’s constitutional or statutory rights.

Finally, in the last case, State v. Artic, 2008AP880, the Petitioner argues that that police officers’ alleged violations of his rights (invasion of the curtilage, manufacture of exigent circumstances, and forced entry) were not sufficiently attenuated from the consent to search.  Further, he argues that, per se, the fruits of a search or seizure are inadmissible if police created the exigent circumstances (fear of destruction of evidence) by knocking and announcing before entry.

The first of my favorites is considered in my Torts class.  It is Quesenberry v. Milwaukee County, 106 Wis.2d 685, 317 N.W.2d 468 (1982).  It arises in the discussion of the duties of owners and occupiers of land to those who come upon the property.  It is referenced to show how, at times, state legislatures see fit to modify common law rules.  The case dealt with a provision of the Wisconsin Statutes in effect at the time of an accident (then § 29.68) that barred recovery for injuries received while engaging in “recreational” activities on lands of another. 

The plaintiff broke her leg when she stepped into a hole on a golf course fairway.  She alleged that the hole was not easily visible.  In holding that the statute was not applicable to the plaintiff’s case, the court construed the legislative intent for the statute to apply to “the type of activity that one associates being done on land in its natural undeveloped state as contrasted to the more structured, landscaped and improved nature of a golf course.” 106 Wis.2d at 693, 317 N.W.2d  at 472.  This case also allows noting to the students that the Wisconsin Legislature subsequently amended the statute (now § 895.52) and in so doing stated that the new “legislation should be liberally construed in favor of property owners to protect them from liability” and that it “is intended to overrule any previous Wisconsin supreme court decisions interpreting section 29.68 of the statutes if the decision is more restrictive than or inconsistent with the provisions of this act.” 1983 Act 418, § 1.  It helps for the students to be aware that, at times, member of the legislature do read court decisions interpreting legislation and can act to overturn interpretations they do not like.  I close the discussion of the case by noting that I am unaware if Quesenberry was one of the cases the legislature was unhappy with.  I also note that when I first read the opinion I sent a letter to its author, Justice Day.  Therein I said that either he was a scratch golfer or never played the game because the vast majority of golfers spend most of their time on the “natural undeveloped” portions of golf courses.

The second “favorite” is Gross v. Lloyds of London Ins. Co., 121 Wis.2d 78, 358 N.W.2d 266 (1984), which is considered in my Insurance course.  In August 1982, at The Experimental Aircraft Association’s annual fly-in at Oshkosh, an unoccupied aircraft owned by the insured rolled into the tent occupied by a young woman. She was severely injured by its operating propeller. The plane owner’s insurer investigated and determined that the woman’s damages greatly exceed the policy limits of $100,000 and that their insured’s liability was clear.  It unsuccessfully attempted to settle the case for that amount with the woman’s attorney. It then attempted to tender the policy limits into court so as to be relieved from any further duty to defend its insured.  The Supreme Court held that because the insured had not received notice of the change in the duty to defend provisions of the policy, the insurer’s tender of policy limits into court did not relieve it of the duty to defend.  It further held that “for an insurer to be relieved of its duty to defend upon tender of the policy limits, the ‘tendered for settlements’ language must be highlighted in the policy and binder by means of conspicuous print, such as bold, italicized, or colored type.” 121 Wis.2d at 89, 358 N.W.2d at 271.  Then Justice, now Chief Justice, Abrahamson concurred in remanding the case to the trial court, but she argued that it should be remanded for an evidentiary hearing as to whether the insured knew before the fact that the insurer could terminate its defense effort.  She noted that an appellate court cannot make a finding of fact.  She also said she “cannot join the majority in its adoption of a ‘readability’ and ‘notice’ rule for binders and insurance policies. These are matters for the legislature and the commissioner of insurance.” 121 Wis.2d at 91, 358 N.W.2d at 272.  I also advise my students that the case caused me to write a letter to Justice Abrahamson in which I stated that for the first time I could remember I agreed with one of her opinions in a case dealing with a subject I teach.  The letter came back a few days letter with a penned note at its foot: “My God, I must have done something wrong!  S.”

I never once, however, discussed (or even considered) the possibility that a litigant would submit a brief in the form of a rap.   The pro se litigant submitted the “rap brief” and won.

As professional writers, should we lawyers be concerned?  I can’t imagine this form of writing starting a trend, but does its use suggest something about a changing level of formality in court documents?

I’m not sure.  I think it may be a fluke, but I’m troubled.   

At issue in Zellner v. Herrick is whether the transcript of Robert Zellner’s closed arbitration proceeding is a “public record” under Wisconsin’s public records law, and if so, whether personal information must be redacted before release of that record.  Zellner is the Cedarburg School District teacher who lost his job for allegedly viewing pornography on a school computer.  The issue of whether the transcript of Zellner’s arbitration proceeding is a public record was certified to the court from the court of appeals.  At the same time as it accepted the certification, the Wisconsin Supreme Court declined to hear Zellner’s appeal of the court of appeals decision that affirmed the trial court’s conclusion that an arbitration panel wrongly reinstated Zellner to his position.

Does a police officer have probable cause to suspect a driver is operating a vehicle while intoxicated, when the officer observes a car driving more than 84 miles per hour in a 30 mph zone, on the wrong side of the road, shortly after bars have closed, and then hitting a utility pole and flipping over, leaving the driver unconscious? That is the question in State v. Lange, where the State appeals from the Court of Appeals decision that the police lacked probable cause.

The criminal case is State v. Popke, 2008AP446-CR. From the court’s website, “A decision by the Supreme Court could clarify if a momentary crossing of the center line creates probable cause to believe that a motorist has failed to drive on the right side of the roadway, as required by Wis. Stat. § 346.05. Alternatively, the court may provide further guidance as to what driving conduct a police officer must observe in order to create a reasonable suspicion of an OWI violation. From Waupaca County.”

The first civil case is Osborn v. Dennison, 2007AP1799. Again, the description from the court’s website:

This case involves a dispute over a failed residential real estate transaction and whether the sellers elected the remedy of liquidated damages, preventing the sellers from obtaining their actual damages.

Some background: Harold Dennison offered to purchase the home of Douglas and Martha Osborn, using the standard WB-11 Residential Offer to Purchase form approved by the Department of Regulation and Licensing. He deposited $2,000 in earnest money with the broker in connection with his offer. The parties reached an agreement.

After two previously scheduled closing dates had passed, Osborn elected to take advantage of his right to conduct a pre-closing inspection. He and the brokers for both parties discovered damp insulation and damp walls in the basement. Dennison requested another extension of the closing date to address these issues, but the Osborns rejected that request and the deal did not close.

The Osborns subsequently directed their broker to hold the earnest money and place the house back on the market. They also told their broker that they intended to sue Dennison for actual damages after the house had been sold. Dennison requested his earnest money be returned, but did not receive it at that time.

The Osborns sold their house to another buyer in October 2005. In April 2006, they filed a complaint against Dennison, which alleged breach of the sales agreement and sought actual damages.

The Osborns say they never requested nor received the earnest money and that Dennison never authorized it to be released to them. Dennison filed a motion to dismiss, which apparently raised the defense that the Osborns had elected the liquidated damages represented by the earnest money. On June 23, 2006, the Osborns directed their broker to return the earnest money to Dennison. The circuit court denied the motion to dismiss in July 2006. The Osborns then filed an amended complaint, which noted that they had authorized the return of the earnest money and which again sought actual damages.

Summary judgment motions were filed by both sides. The circuit court granted the partial summary judgment motion filed by Dennison and ruled that the Osborns were limited to collecting the $2,000 in earnest money as liquidated damages. The circuit court believed that the Osborns had irrevocably elected the remedy of liquidated damages when they had refused Dennison’s request in May 2005 for the return of his earnest money. The Court of Appeals affirmed.

The Osborns ask the Supreme Court to review if under these circumstances they “retained” the earnest money and thereby irrevocably elected the remedy of liquidated damages and forfeited their right to actual damages. From Kenosha County.

And the other civil case is Baldwin-Woodville Sch. v. West Central Ed., 2008AP519. Again, from the court’s website: “In this case involving a dispute over a teacher’s pay rate, the Supreme Court has been asked to review application of the ‘perverse misconstruction’ doctrine and if courts may vacate arbitration awards where parties gave the arbitrator express authority to decide procedure and timeliness.”

The most newsworthy civil matter seems to be Biskupic v. Cicero, 2007AP2314. Through this appeal Vince Biskupic seeks to have his libel and slander claims against various defendants reinstated. Biskupic, as you may know, is a former Outagamie County D.A. who ran for state attorney general in 2002. Biskupic v. Cicero, 2008 WI App 117, ¶ 1. The defendants include a Shawano newspaper, the Shawano Leader, which published a false report stating that Biskupic had been convicted of bribery and graft. Id. ¶1

The Defendants moved for summary judgment against Biskupic’s claims. The circuit court “concluded Biskupic was a limited purpose public figure, and the actual malice standard applied. The court held the summary judgment submissions showed ‘the defamation occurred as a result of confusion and negligence, not malice.’”  The circuit court also rejected Biskupic’s argument that he should be granted judgment against the newspaper defendants, or a jury instruction, based on a reporter’s destruction of interview notes. Id. ¶10-11. The Court of Appeals affirmed, and the Supreme Court has accepted Biskupic’s petition for review.

The next civil case, Hocking v. City of Dodgeville, 2007AP1754, is a certification from the Court of Appeals, asking, “Can an uphill landowner who has done nothing to affect surface water flow be held liable to the owner’s downhill neighbor for damages sustained as a result of the water flow?” The Hockings bought a house in 1978, and later, in 1991, the City of Dodgeville developed a subdivision around that home. The Hockings contend that the development changed the surface water flow and damaged their property. They sued the city and some individual homeowners, but the claim was dismissed on summary judgment because the property owners did nothing to their properties to alter the flow to the Hockings’ detriment, so that under the “reasonable use” doctrine, there was no liability. In its certification, the Court of Appeals explains,

The Hockings argue that the neighbors are liable for negligently failing to abate a nuisance, relying on a recent supreme court case, Milwaukee Metropolitan. This case involves damages caused by water in sewers and pipelines, not surface water. In Milwaukee Metropolitan, the sewerage district brought a claim for maintaining a nuisance against the City of Milwaukee for damage to a sewer allegedly caused by a collapse of the city’s water main. Id., ¶3. The supreme court cited with favor RESTATEMENT (SECOND) OF TORTS § 839, which imposes liability on a party who negligently fails to abate a nuisance condition. See id. The Hockings argue that the neighbors have not appropriately managed the surface water flow from their property and are thus subject to liability for negligently failing to abate this nuisance under Milwaukee Metropolitan.

Finally, Donaubauer v. The Farmers Auto Ins. Assoc., 2007AP1992. This case gives the court the opportunity to clarify whether the appraisal process of resolving an insurance dispute is equivalent to the arbitration process. The plaintiff’s home was burned down in a fire caused by a passing Union Pacific train. His insurer paid him $530,000 for the loss, but the plaintiff claimed that more money was due under his “Home Guard replacement endorsement.” After the lawsuit had been filed, the insurer asked the plaintiff to participate in an appraisal process to settle the claim, and the plaintiff initially agreed, but then wished to back out of the process. He also wanted to conduct futher discovery about the appraisal. The circuit court granted summary judgment against his claims, holding that the appraisal could not be set aside. The court of appeals affirms. The Wisconsin Supreme Court news release explains that in the petition,

Donaubauer has asked the Supreme Court to review if the standards for challenging appraisals and arbitrations precisely mirror one another and to provide guidance on the method to challenge an appraisal. He also asks if it was appropriate for him to be forced to participate in a binding appraisal process, even though nothing in his insurance policy mandated a binding process. He also wants the Supreme Court to review if he should have been allowed to conduct discovery on the undertakings of the appraisal process.

Farmers contends that Donaubauer agreed in writing to the appraisal process and that his attorney acknowledged doing so in court. Farmers also contends the Court of Appeals correctly decided that under the facts, requiring actual replacement under the policy was not unfair but commercially reasonable.

A decision by the Supreme Court could clarify law in this area.

A post at Legal Theory Blog alerted me to Amy E. Sloan‘s new article, If You Can’t Beat ‘Em, Join ‘Em:  A Pragmatic Approach to Nonprecedential Opinions in the Federal Appellate Courts, 86 Neb. L. Rev. 895 (2008), available on SSRN.  Amy Sloan is an Associate Professor of Law and Co-Director of the Legal Skills program at University of Baltimore School of Law.  She is well known to legal writing professors, and to many law students, as the author of a popular legal research textbook, Basic Legal Research: Tools and Strategies.

Sloan makes an interesting argument, advocating that Federal Rule of Appellate Procedure 32.1 be amended to assign non-precedential opinions a sort of “mixed” precedential value, specifically, that “non-precedential opinions [would be] binding unless overruled by a later panel’s precedential opinion.”  She contends that giving non-precedential cases this “‘overrulable’ status” would ensure that the opinions’ precedential weight would “correspond[] to their position within the traditional hierarchy of federal decisional law.”  

As Sloan discusses, there are good questions about whether such a change should (or even could) be implemented by rule change.  But setting that procedural issue aside, the changes she recommends have some appeal, to me.  Currently, Federal Rule of Appellate Procedure 32.1 prohibits the circuits from prohibiting citation of non-precedential opinions, but does not specify what weight can or should be accorded any such opinions that are issued.  As Sloan details in her article, under this regime the circuits have developed different, somewhat inconsistent approaches regarding the issuance of and importance of non-precedential opinions.  Uniformity seems preferable.  

Also, assigning the opinions the sort of intermediate weight Sloan advocates is intuitively appealing, if only because it seems a rough approximation of the way that courts will respond to such opinions.  I.e., even if non-precedential opinions are designated as merely “persuasive,” once an on-point non-precedential opinion is presented to a court, the court probably will feel the need to respond to its reasoning in some way or another, either adopting it as good reasoning, or disapproving it.

Sloan’s article also reminded me of a question that Wisconsin Court of Appeals Judge Joan Kessler raised a couple of weeks ago, when I was on a CLE panel sponsored by the Association of Women Lawyers, along with Judge Kessler and Court of Appeals Judge Kitty Brennan.    During discussion of the recent decision to amend Wisconsin Statute 809.23(3), Judge Kessler asked whether Cook v. Cook, the Wisconsin Supreme Court case that prohibits the Wisconsin Court of Appeals from overruling its own opinions, would also apply to non-precedential opinions, when they  become “persuasive” authority after the new rule takes effect in July 2009. 

Judge Kessler seemed to presume, correctly I think, that Cook v. Cook would not limit the court’s ability to overrule or modify such decisions.  The precise holding of Cook v. Cook,  “that the constitution and statutes [of Wisconsin] must be read to provide that only the supreme court, the highest court in the state, has the power to overrule, modify or withdraw language from a published opinion of the court of appeals,” does not reach non-precedential opinions.  

Nonetheless, Judge Kessler’s question, like Sloan’s questions in this new article, lead me to believe that questions about the proper “value” of non-precedential opinions in legal arguments will persist, despite (and maybe because of) the trend toward allowing citation of these opinions.

The court ruled in favor of Linda and Megan in a decision that did not rule on whether or not their conduct (or alleged lack of vigilance) constituted assisted suicide. Instead, the court based its ruling on its conclusion that the statutory language “unlawful and intentional killing” does not include conduct like the conduct of Linda and Megan. The court invoked the plain meaning rule, and pointed out that “kill” means “to deprive of life” while “suicide” means “to put (oneself) to death: kill.” The court opined that even if Linda and Megan had (as the opponents of the will claimed) given the decedent a gun, driven him to his cabin, helped him inside, and left him alone, they still did not kill him, because they did not commit the act that ended his life. According to the Milwaukee Journal-Sentinel, some are now concerned that the decision might give a financial motive to people to provide the means for others to kill themselves. Although I agree that avoidance of any kind of suicide is a good thing, I believe that the Court of Appeals was correct in its decision, and that its interpretation does not provide any motivation for wrongful behavior by folks hoping to inherit.

The situation where an expectant heir or legatee murders someone in order to inherit sooner is a cause for valid concern, and there has long been a common law rule against such actors profiting from their evil deeds. The common law rule evolved slowly, though, and there were some real loopholes both in the cases and in the early statues, which tended to bar inheritance from someone who had “murdered” the decedent. Did second-degree murder count? Manslaughter? Juvenile conviction? What if it was clear that the actor killed the decedent, but the actor was found not guilty by reason of insanity? In terms of the early cases and statues, second-degree murder might bar inheritance, but the other situations likely would not. Hence states like Wisconsin amended their statutes to bar the unlawful and intentional killing of a person by a potential inheritor, but allowing the probate court to determine under a preponderance of the evidence standard whether the killing was unlawful and intentional for purposes of the statute. The statute adds two exceptions: 1) “The court finds that under the factual situation created by the killing, the decedent’s wishes would best be carried out by means of another disposition of the property,” and 2) “The decedent provided in his or her will, by specific reference to this section, that this section does not apply.”

So, does the recent Schunk case coupled with the statutory exceptions give the green light to unscrupulous relatives who will now feel free to urge their loved ones to speed up the inheritance process with suicide? I don’t think so, and here’s why:

The Wisconsin statute, and the cases which have both preceded and accompanied it, have sought to prevent wrongdoers from profiting from intentional acts of destruction directed towards the testator, i.e., “killing.” However, the law distinguished between intentional and unlawful killing and other behavior which could be better described as negligent, ignorant, accidental, or just less than ideal. Why not clamp down on that sort of behavior as well? I can see at least two important reasons. In the first place, penalizing intentional killing certainly removes a prime motivation for that killing. There is no point in killing someone for an inheritance if the act of killing eliminates the inheritance. But it makes less sense to punish unintentional behavior because deterrents don’t work as well when behavior is unintended. Of course, you could argue that punishing unintentional behavior will motivate possible inheritors to be more careful. But how careful would they have to be to avoid losing their inheritances? This brings us to the second reason for the rule: just as we don’t want to allow potential inheritors to retain a method of acting wrongfully in order to speed up their inheritances, we don’t want to give other potential inheritors a new array of grounds upon which they can contest a will.

If we ban inheritance by people who arguably failed to take some step that might have prevented the death of the testator on the grounds that this failure amounted to “killing,” then where will it end? The children from Edward Schunk’s first marriage are apparently claiming that if Linda and Megan had taken Edward’s gun away and prevented him from leaving for his cabin, he would not have died. But what if they had taken away his gun and his car keys? He could have hung himself with his belt or a bed sheet, consumed toxic substances, or done a myriad of other things leading to the same result. We all know that it is almost impossible to prevent a truly determined person from committing suicide. Classifying failure to prevent a suicide as assisted suicide and then equating that with unlawful and intentional killing will not prevent any deaths, but is very likely to encourage a will contest by any heir who thinks he should have inherited more from a person who committed suicide.

Moreover, the exceptions mentioned above do not condone assisted suicide, but rather allow the court to discern whether any contested behavior was the sort of unlawful and intentional killing that the law envisions. They also allow for the fact that the decedent might not want an intended beneficiary to lose his inheritance because he in some way went along with the decedent’s desire for an earlier death. Without this exception, any disappointed heir could accuse a grieving spouse of “killing” in any situation where he or she went along with any behavior, medical treatment (or lack thereof), or anything else that could conceivably have shortened the decedent’s life. For example, if a spouse goes along with a dying mate’s decision to forgo further chemo, receive more morphine, or request a Do Not Resuscitate Order, disgruntled heirs could have a field day in court. The law clearly does not favor such an expansive interpretation of the statutory language, and giving this opening to disappointed heirs would be, in my opinion, a very bad policy.

Ralph nicely summarizes the abundant (and not entirely consistent) case law and other legal authorities on this question, focusing especially on Wisconsin law. He then argues that the courts should look to insurance law to help clarify the line between economic and non-economic losses. Standard commercial liability policies make similar distinctions between property damage that is tortious or contractual in nature, which turns on whether there has been “physical damage to tangible property.” Ralph’s instincts seem quite sensible (and echo some of the work of my colleague Keith Sharfman on valuation): as the courts deal with allocating responsibility for damages after the fact, it may be helpful for them to draw on the way that sophisticated players allocate responsibilities by contract (here, insurance contract)–if bargaining occurs in a rational way, it should result in an economically efficient distribution of liabilities.