More on Coulee Catholic Schools v. LIRC

Posted on Categories Constitutional Interpretation, First Amendment, Labor & Employment Law, Wisconsin Civil Litigation, Wisconsin Law & Legal System, Wisconsin Supreme Court3 Comments on More on Coulee Catholic Schools v. LIRC

discriminationAs Professor Esenberg has just posted about, earlier this week, the Wisconsin Supreme Court handed down a very important decision, Coulee Catholic Schools v. LIRC (2009 WI 88). Although some describe the holding as “a dramatic change” in Wisconsin employment law, I think the case is more important for its constitutional discussion. On the actual question presented, I think the Court’s holding was straightforward, correct, and not very dramatic.

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. Continue reading “More on Coulee Catholic Schools v. LIRC”

Wisconsin Set to Pass Enhanced Employment Discrimination Law

Posted on Categories Labor & Employment Law, Wisconsin Civil LitigationLeave a comment» on Wisconsin Set to Pass Enhanced Employment Discrimination Law

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).  Continue reading “Wisconsin Set to Pass Enhanced Employment Discrimination Law”

Wisconsin Supreme Court Accepts Three New Cases, Including a Case That Will Determine Whether a Crime with No Sexual Component May Trigger Sex Offender Registration Requirements

Posted on Categories Criminal Law & Process, Tort Law, Wisconsin Civil Litigation, Wisconsin Criminal Law & Process, Wisconsin Law & Legal System, Wisconsin Supreme CourtLeave a comment» on Wisconsin Supreme Court Accepts Three New Cases, Including a Case That Will Determine Whether a Crime with No Sexual Component May Trigger Sex Offender Registration Requirements

 

Supreme Court sealToday 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. Continue reading “Wisconsin Supreme Court Accepts Three New Cases, Including a Case That Will Determine Whether a Crime with No Sexual Component May Trigger Sex Offender Registration Requirements”

Wisconsin Supreme Court Accepts Six New Cases, Including Issue of Inherent Authority of Wisconsin Appellate Courts to Grant a New Trial in the Interests of Justice

Posted on Categories Corporate Law, Criminal Law & Process, Wisconsin Civil Litigation, Wisconsin Criminal Law & Process, Wisconsin Law & Legal System, Wisconsin Supreme CourtLeave a comment» on Wisconsin Supreme Court Accepts Six New Cases, Including Issue of Inherent Authority of Wisconsin Appellate Courts to Grant a New Trial in the Interests of Justice

Supreme Court sealOn March 2, the Wisconsin Supreme Court accepted six new cases for review, five criminal cases and one civil case.

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, Continue reading “Wisconsin Supreme Court Accepts Six New Cases, Including Issue of Inherent Authority of Wisconsin Appellate Courts to Grant a New Trial in the Interests of Justice”

My Favorite Wisconsin Cases

Posted on Categories Legal Education, Tort Law, Wisconsin Civil Litigation, Wisconsin Supreme Court1 Comment on My Favorite Wisconsin Cases

Where does one start?!  I attempt to bring Wisconsin law into my classes for several reasons.  The “Diploma Privilege” permits our students to practice in this state without taking the Bar Exam.  Wisconsin courts have been pacesetters as to matters considered in the subject areas in which I teach.  I believe students should learn, as early as their first year with us, that is not improper for one to find fault with judicial and legislative reasoning, at times even in a humorous fashion, as long as due respect is shown.

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.  Continue reading “My Favorite Wisconsin Cases”

It’s a Rap. Really.

Posted on Categories Legal Writing, Wisconsin Civil Litigation, Wisconsin Law & Legal System2 Comments on It’s a Rap. Really.

In Advanced Legal Writing class, students discuss different persuasive techniques that lawyers and judges use in their writing.  We debate the pros and cons of using literary references, illustrative narratives, pop culture references, historical examples, and unusual formats and organizations.

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.   

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.

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”

Should Non-Precedential Opinions Be “Precedential But Overrulable” Opinions?

Posted on Categories Federal Civil Litigation, Legal Practice, Legal Research, Wisconsin Civil LitigationLeave a comment» on Should Non-Precedential Opinions Be “Precedential But Overrulable” Opinions?

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.”   Continue reading “Should Non-Precedential Opinions Be “Precedential But Overrulable” Opinions?”

Suicide and Inheritance: A New Ruling by the Wisconsin Court of Appeals

Posted on Categories Wisconsin Civil LitigationLeave a comment» on Suicide and Inheritance: A New Ruling by the Wisconsin Court of Appeals

Last week, the Fourth District Court of Appeals in Wisconsin ruled on a case involving a testator (Edward Schunk) who committed suicide and the inheritance rights of the family who survived him. Apparently, Edward was on a one-day pass from a hospital when he was found dead in a cabin which he owned. The death resulted from a single, self-inflicted shotgun blast to his chest. His will left property to his wife, to his daughter from his second marriage, and to some (but not all) of his six older children who were not Linda’s children. Five of those older children challenged the inheritance by the second wife (Linda) and child from that marriage (Megan) on the grounds that they had aided Edward in committing suicide, and thus should be barred from inheriting under a Wisconsin statute that forbids inheritance by persons who unlawfully and intentionally kill the decedent. Linda and Megan denied providing any help to the decedent’s suicidal act, and asserted that Edward had taken his gun and gone to the cabin without their knowledge. Continue reading “Suicide and Inheritance: A New Ruling by the Wisconsin Court of Appeals”

Economic Loss: Learning From Insurance Law

Posted on Categories Legal Scholarship, Tort Law, Wisconsin Civil LitigationLeave a comment» on Economic Loss: Learning From Insurance Law

My colleague Ralph Anzivino has a helpful new article that explores the fine line between contract law and tort law: The Economic Loss Doctrine: Distinguishing Economic Loss from Non-Economic Loss, 91 Marq. L. Rev. 1081 (2008). As developed by Wisconsin and many other states, the economic loss doctrine indicates that purely economic losses are recoverable in contract, while non-economic losses are recoverable in tort. The difficulty lies in distinguishing economic from non-economic, particularly with respect to property damage resulting from product failure. (Imagine, for instance, a defective garage door opener that causes a garage door to close on the owner’s car.) Continue reading “Economic Loss: Learning From Insurance Law”