I Refer to the Woman with Whom You Have a Child But Who Is Not Your Wife (Hereafter “Baby Mama”)

Perhaps Professor O’Hear can straighten me out on this.

The decision of a divided Court of Appeals setting aside the sentence of Landray Harris has gotten a fair amount of play in the blogs and on talk radio. Put briefly, the court vacated the sentence because the sentencing judge, apparently frustrated by the defendant’s failure to get a job, referred to the defendant’s “baby mama” (who supports him) and wondered how “you guys” (referring to one out of four defendants who appeared before the court) find women who are willing to support them in idleness. One of the area’s most prominent African-American defense attorneys has come to the defense of the sentencing judge, suggesting that his comments grew out of conversations that they had over the years about the puzzling ability of ne’er-do-wells to find women who enable them.

MULS alum Tom Foley is derisive of the critics, suggesting that they have failed to understand the proper standard for evaluating such matters. He points out that the majority asked whether the sentencing remarks could suggest to a reasonable observer or a “reasonable person in the position of the defendant that the court was improperly considering Harris’s race?” Thus, Tom argues, the question to be answered is not what, say, Jeff Wagner would make of the judge’s remarks but how they would be perceived by an African-American defendant.

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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.

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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.  

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