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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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.

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