Filed Under: Appellate Law
Wisconsin Court of Appeals Reiterates Clear Prohibition on Judicial Fact Investigation
For years, the legal profession has debated the propriety of judges conducting independent research into facts undeveloped in or omitted from legal briefs. Last year, the Seventh Circuit moved to the forefront of that debate when a panel of that Court splintered over the propriety of using non-record information to inform its deliberations. See Rowe […]
Filed Under: Appellate Law Trust & Estates Law
Court of Appeals: Statute of Frauds Does Not Nix Unsigned Agreement to Convey Property Upon Death
The Wisconsin Court of Appeals recently adjudicated a dispute about the legal standard applicable to a decades-old contract to transfer property after the owner’s death. See Haug v. Greve, 2015AP54 (April 26, 2016). The case involved the common law statute of frauds, as well as two Wisconsin statutes adopted at the very end of the […]
Filed Under: Appellate Law
A Split Between Federal and State Law – Appealing Foreclosure Judgments
In Bank of America v. Martinson, No. 13-3892 (7th Cir. July 5, 2016), the Seventh Circuit recently dismissed an appeal from a foreclosure judgment – issued by a federal court after removal from Wisconsin state court – based on Circuit precedent that a judgment of foreclosure is not a final, appealable order. The Circuit precedent […]
Filed Under: Appellate Law Municipal Law
How Will Wis. Stat. § 895.463 Affect Disputes Over the Validity of Zoning Regulations?
A new statutory provision adopted as part of 2015 Wisconsin Act 391 asserts that, in any dispute, “the court shall resolve an ambiguity in the meaning of a word or phrase in a zoning ordinance or shoreland zoning ordinance in favor of the free use of private property.” Wis. Stat. §895.463. On its face, this […]
Filed Under: Appellate Law
Supreme Court’s Non-Decision in State v. Lynch Raises Questions About How the Court Does Its Work
Last week, the Wisconsin Supreme Court threw up its hands in a case it had agreed to adjudicate. At issue were what consequences attend a criminal complainant’s refusal to waive the privilege of keeping personal mental health treatment records private. See State v. Lynch, 2016 WI 66. This echoed the last time the Court considered […]
Filed Under: Appellate Law
Wisconsin Supreme Court Reaffirms Four-Corners Rule Governs Duty to Defend, No Exceptions
The Wisconsin Supreme Court recently issued two decisions, Marks v. Houston Casualty Co., 2016 WI 53, and Water Well Solutions Service Group, Inc. v. Consolidated Insurance Co., 2016 WI 54, concerning the four-corners rule, which was the subject of our previous blog post. Water Well and Marks reaffirm the application, without exception, of the four-corners […]
Filed Under: Dealership & Franchise Law
Putting “Secrets” in the FDD: A Franchisor Nondisclosure Trap
The Federal Trade Commission mandates disclosure of “any material action involving the franchise relationship during the last fiscal year” under Item 3 of the Franchise Disclosure Document (“FDD”), which must be provided to all prospective franchisees. But as a recent opinion of the U.S. Court of Appeals for the Seventh Circuit illustrates, this seemingly innocuous […]
Filed Under: Appellate Law Municipal Law
Wisconsin Supreme Court Favors Dodgeville on Retroactivity Question in Property Tax Litigation
This week, the Wisconsin Supreme Court ruled in favor of the City of Dodgeville, represented by Stafford Rosenbaum, in a major procedural dispute related to property tax litigation between the City and Lands’ End. Lands’ End, Inc. v. City of Dodgeville, 2016 WI 64. The Court’s decision affirms the plain text of the statute governing […]
Filed Under: Appellate Law
The Wisconsin Supreme Court Takes a Second Bite at the Apple in ‘Fontana Builders’ Case
In Fontana Builders, Inc. v. Assurance Co. of America, the Wisconsin Supreme Court recently considered an insurance dispute featuring intricate facts and presenting a procedural puzzle. It may well be, as Justice Rebecca Bradley suggests in her separate opinion, that the outcome is motivated at least partially by a sense that the facts in this […]
Filed Under: Dealership & Franchise Law
New Law Limits Franchisors’ Joint Employer Liability Exposure In Wisconsin
In an environment where franchisors are increasingly concerned about being deemed “joint employers” with their franchisees, the Wisconsin Legislature has provided some welcome relief. It has enacted legislation that provides franchisors with assurances that they will not be treated as an “employer” of the employees of a franchisee for purposes of Wisconsin laws pertaining to […]
Filed Under: Appellate Law Municipal Law
Supreme Court Upholds Warrantless Breath Tests and Limits Penalties for Blood Test Refusals
In Birchfield v. North Dakota, 579 U.S. __ (June 23, 2016), the United States Supreme Court held warrantless breath tests incident to arrest for drunk driving constitutional, but found warrantless blood tests unconstitutional. The Court also held that, despite the existence of implied consent laws in all States, criminal penalties cannot be imposed against drivers […]
Filed Under: Appellate Law
Wisconsin Court of Appeals Suggests Circuit Courts Have Discretion Not to Follow Procedural Rules
A recent Wisconsin Court of Appeals seems to suggest that circuit courts have broad latitude in complying with the Wisconsin Rules of Civil Procedure. First Nat’l Bank of Am. v. Hanson, No. 2015AP925 (Wis. Ct. App. July 6, 2016). While judges should construe the Rules to “secure just, speedy, and inexpensive determination[s]” in litigation, the […]
Filed Under: Appellate Law Municipal Law Trust & Estates Law
Wisconsin Supreme Court Holds that Milwaukee Cannot Enforce City Employee Residency Requirements
In Milwaukee Police Association v. City of Milwaukee, 2016 WI 47, the Wisconsin Supreme Court held that Wis. Stat. § 66.0502 precludes the City from enforcing its residency requirement. For many years, the City of Milwaukee has required its city employees to reside within city limits as a condition of employment. On June 20, 2013, […]
Filed Under: Appellate Law
Why Murr v. Wisconsin is a Fascinating Takings Case that the U.S. Supreme Court Should Not Decide
The U.S. Supreme Court is commanding attention this week for its decisions in the final, and sometimes more contentious, cases of this Term. And while we too are following the Court this week, we’re also looking at a case the Court will hear in the fall. Murr v. Wisconsin, No. 15-214 (U.S.), is a fascinating […]
Filed Under: Appellate Law
Part 1: The Factual and Procedural Background of Murr v. Wisconsin
The case involves two adjacent riverfront lots along the St. Croix River in northwest Wisconsin. In 1968, the Upper St. Croix River was one of eight rivers granted federal protection under the Wild and Scenic Rivers Act. In 1972, another act of Congress extended protection to the Lower St. Croix River. Legislation and regulation on […]
Filed Under: Appellate Law
Part 2: Why the Supreme Court Should Decide Not to Decide Murr v. Wisconsin
The amicus brief we filed on behalf of WCA, WTA and the League did not delve into the merits of the takings issue that the parties are disputing. Rather, it sought to complement the parties’ arguments and assist the Court in two ways: First, based on our clients’ expertise as representatives of Wisconsin local governments, […]
Filed Under: Appellate Law
Part 3: The Arguments of the Parties and the Federal Government in Murr v. Wisconsin
The dispute over the validity of the St. Croix County zoning ordinance at issue in Murr really depends on how you define the petitioners’ property. (For an overview of the facts of this case, click here.) If, like the petitioners, you believe that Lots E and F are separate properties and must be considered as […]
Filed Under: Municipal Law
Beware the Liability Boogeyman
When it comes to opposing governmental decision-making, ‘boogeyman’ threats are not just the stuff of bedtime stories. Traditionally, the term ‘boogeyman’ serves as a common allusion to a mythical creature used in many cultures to frighten children into good behavior. If many nay-sayers at local governmental meetings are to be believed, these ‘boogeyman’ are no […]
Filed Under: Appellate Law
Seventh Circuit Imposes Monetary Sanctions Against Lawyer for Forum Shopping
It is fairly accepted that strategic considerations factor into most plaintiffs’ choices of forum in which to sue. Yet the Seventh Circuit last week held that such forum shopping can rise to the level of conduct punishable by monetary sanctions. See Boyer v. BNSF Ry. Co., Nos. 14-3131 & 14-3182, slip op. (7th Cir. June […]
Filed Under: Appellate Law
Wisconsin Supreme Court Provides Little Guidance with Hyper-textual Ruling on Service of Process
Before filing suit against the state for the actions of a state employee, a plaintiff must notify the attorney general. Specifically, notice “shall be served upon the attorney general at his or her office in the capitol by certified mail.” Wis. Stat. §893.82(5). Because the attorney general’s office in the capitol does not accept mail […]
