Wisconsin Supreme Court Accepts Two More Cases, Including Question of Probable Cause to Arrest for OWI

Posted on Categories Wisconsin Civil Litigation, Wisconsin Criminal Law & Process, Wisconsin Law & Legal System, Wisconsin Supreme Court2 Comments on Wisconsin Supreme Court Accepts Two More Cases, Including Question of Probable Cause to Arrest for OWI

Yesterday the Wisconsin Supreme Court voted to accept two more cases this term, Zellner v. Herrick, no. 2007AP2584, and State v. Lange, 2008AP882-CR.

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.

From Russia with Love

Posted on Categories Judges & Judicial Process, Wisconsin Supreme Court2 Comments on From Russia with Love

In my first post, I want to thank Dean O’Hear for the invitation to serve as January’s Student Blogger of the Month, as well as my predecessors for the high bar they have set for me.  It’s rare that someone willingly gives me a forum to opine on topics of my choosing, and I am glad (and honored!) to have this one. 

A little over a month ago The Economist ran a special report on corruption in Russia, including a brief note about the mounting problems within the Russian judiciary.  Although the latter article mostly contains interesting observations regarding prosecutorial abuse within the criminal justice system, I want to highlight one particular passage concerning civil litigation:

Things are not much better in corporate disputes. Large companies rarely trust in a judge’s unprompted decision. In commercial courts a judge often takes a bribe for reaching a speedy conclusion. All this helps to explain why the European Court of Human Rights is overwhelmed with Russian cases, and why large Russian companies seek justice in London. The Yukos case [described in the former link] showed that the courts have become part of the Kremlin machinery. The problem, says one Moscow lawyer, is that “the law in Russia is often trumped by money and always by high-level power.”

According to some, the same thing may be happening in the United States.  Continue reading “From Russia with Love”

Is Cheerleading A Sport?

Posted on Categories Sports & Law, Wisconsin Law & Legal System, Wisconsin Supreme Court9 Comments on Is Cheerleading A Sport?

Brittany Noffke, a ninth-grade student at Holmen High School, fell while practicing a three-person cheerleading stunt and suffered a severe head injury.  She sued Kevin Bakke, another cheerleader, for alleged negligence in failing to properly spot her during the stunt. Bakke defended on the ground he is immune from negligence liability under Wisconsin Stat. § 895.525(4m)(a).  This statute provides that a participant “in a recreational activity that includes physical contact between persons in a sport involving amateur teams” is liable only for causing injury to another participant by acting “recklessly or with intent to cause injury.”

In Noffke v. Bakke, 308 Wis.2d 410, 748 N.W.2d 195 (Wis. App. 2008), a Wisconsin appellate court held that cheerleading is not a “contact sport” for purposes of this statute.  The court initially assumed, without deciding, that cheerleading is an amateur team sport.  Finding that the statutory  meaning of “physical contact” is ambiguous, the court relied on the title of the statute (“Liability of contact sports participants”) and a dictionary definition of “contact sport” (“any sport that necessarily involves physical contact between opponents”) to define this term.  It concluded that, although “the risks and the athleticism involved in cheerleading are comparable to those in contact sports,” cheerleading is not a “contact sport” because “it does not involve physical contact between opponents.”  Therefore, Wisconsin Stat. § 895.525(4m)(a) does not bar Noffke’s negligence claim against Bakke.

The Wisconsin Supreme Court granted Bakke’s petition to appeal this ruling, and the case is awaiting decision after oral argument last fall.   Continue reading “Is Cheerleading A Sport?”

Thoughts on Welda and Hate Crimes

Posted on Categories Criminal Law & Process, Wisconsin Criminal Law & Process, Wisconsin Supreme CourtLeave a comment» on Thoughts on Welda and Hate Crimes

I wanted to comment briefly on one of the cases recently accepted by the Wisconsin Supreme Court, as reported here by Jessica Slavin.

In State v. Welda, the court will consider the application of the hate crime penalty enhancer set forth in § 939.645(1) providing for increased penalties where the state can prove that a defendant “[i]ntentionally select[ed] the person against whom the crime . . . is committed . . . in whole or in part because of the actor’s belief or perception regarding the race . . . of that person . . . .”

Without getting into the distasteful detail, the defendants were convicted of disorderly conduct arising out of what seems to be an argument with some African-American passers-by who objected to the defendants’ repeated use of the n-word.

There are some not very interesting (and not particularly powerful) arguments that the comments were not directed to the African-American complainants.

But there are three things that I think merit comment. Continue reading “Thoughts on Welda and Hate Crimes”

Wisconsin Supreme Court Accepts Three More Cases

Posted on Categories Wisconsin Civil Litigation, Wisconsin Criminal Law & Process, Wisconsin Law & Legal System, Wisconsin Supreme CourtLeave a comment» on Wisconsin Supreme Court Accepts Three More Cases

Supreme Court sealThe Wisconsin Supreme Court recently voted to accept review in three more cases, one criminal case and two civil ones.

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.” Continue reading “Wisconsin Supreme Court Accepts Three More Cases”

Newly Accepted Civil Cases at Wisconsin Supreme Court, Including Biskupic Slander Case

Posted on Categories Tort Law, Wisconsin Civil Litigation, Wisconsin Supreme CourtLeave a comment» on Newly Accepted Civil Cases at Wisconsin Supreme Court, Including Biskupic Slander Case

Supreme Court sealAs just mentioned, the Wisconsin Supreme Court has decided to accept six new cases, three criminal cases and three civil ones. My prior blog post about those cases discussed the criminal cases; this post discusses the civil ones.

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. Continue reading “Newly Accepted Civil Cases at Wisconsin Supreme Court, Including Biskupic Slander Case”

Wisconsin Supreme Court Accepts Six New Cases, Will Consider Constitutionality of Hate-Crime Penalty Enhancer

Posted on Categories Wisconsin Criminal Law & Process, Wisconsin Supreme CourtLeave a comment» on Wisconsin Supreme Court Accepts Six New Cases, Will Consider Constitutionality of Hate-Crime Penalty Enhancer

Supreme Court sealThe Wisconsin Supreme Court recently considered a number of petitions for review and voted to accept six new cases.  (As I said before, I am planning to write here whenever the Wisconsin Supreme Court accepts new cases.  This is the second of that series.)

The cases accepted today include three criminal cases and three civil cases.  This post describes only the three criminal cases.  I’ll blog next about the civil cases.

Probably the most interesting of the three criminal cases is State v. Welda, 2007AP2024-CR.  State v. Welda presents questions of interpretation and constitutionality of Wisconsin’s disorderly conduct crime and hate crime enhancer penalty.  The underlying charges stem from incidents in which three Janesville residents used offensive racial epithets against a number of African-American residents, including two children.  State v. Welda, 2008 WI App U 135, ¶ 2-5.  When police arrived at the scene, 10-15 residents had gathered in the area of the disturbance.  Id. ¶ 2. In addition to describing their African-American neighbors with inflammatory racial epithets, one of the Defendants also waved a Confederate flag during the incident, and two of the Defendants continued to speak the racial epithets after police directed them not to stop.  Id. ¶ 3-5. Continue reading “Wisconsin Supreme Court Accepts Six New Cases, Will Consider Constitutionality of Hate-Crime Penalty Enhancer”