July 1, 2022 – A member of the Wisconsin Board of Natural Resources (DNR Board) is entitled to remain on the board although his term ended on May 1, 2021, the Wisconsin Supreme Court has ruled in a 4-3 decision.In State ex rel Kaul v. Prehn, 2022 WI 50 (June 29, 2022), the court held that the expiration of DNR Board member Frederick Prehn’s term did not create a vacancy in his position. Consequently, he remained a lawful
Continue Reading Walker Appointee Entitled to Hold Over on DNR Board, Wisconsin Supreme Court Rules

July 1, 2022 – The Wisconsin Supreme Court has ruled that a sexual abuse verdict was supported by reasonable jury inferences, even though the state failed to ask victims specifically whether the statutorily-defined sexual contact occurred during the time periods charged in the complaint.In State v. Coughlin, 2022 WI 43 (June 21, 2022), the supreme court held (5-1) the state’s failure did not negate the heavy burden that the defendant had to overcome the deference traditionally accorded a jury
Continue Reading Sex Abuse Verdict Supported by Reasonable Jury Inferences

July 1, 2022 – The admission of testimony by a victim about her lack of sexual activity in the period preceding an alleged sexual assault did not warrant reversing a defendant’s sexual assault conviction, the Wisconsin Supreme Court has ruled.In State. v. Mulhern, 2022 WI 42 (June 21, 2022), a supreme court majority held that the term “sexual conduct” as used in the rape shield law includes a lack of sexual conduct.Evidence of such lack of conduct barred
Continue Reading Rape Shield Law Applies To Testimony About Lack of Sexual Activity

July 1, 2022 – A search warrant affidavit stated sufficient facts to find probable cause although it listed the driveway of the driver’s home address as the location of the drunk driving offense, the Wisconsin Supreme Court has ruled.In

State v. Green, 2022 WI 41 (June 15, 2022), the supreme court held (6-1) that the facts listed in the affidavit allowed an inference that the drunk driving offense occurred somewhere other than on the driveway of the driver’s
Continue Reading OWI Search Warrant Affidavit Sufficient After Stop on Driveway

June 30, 2022 – The Wisconsin Supreme Court has issued an
order, effective June 29, 2022 extending the five-year-old Commercial Docket Pilot Project.The order amends the Interim Commercial Court Rule to extend the end date of the project to July 30, 2024.Additionally, the order amends the rule to 1) make the selection of specified number of judges in pilot project counties by the Chief Justice of the supreme court permissive instead of mandatory; and 2) specify that the
Continue Reading Wisconsin Supreme Court Extends Business Court Pilot Project on 4-3 Vote

June 29, 2022 – The proper remedy for a circuit court’s failure to specify the grounds for extending a mental health commitment that has since expired is reversal, the Wisconsin Supreme Court has ruled.In Sheboygan County v. M.W., 2022 WI 40 (June 10, 2022), the supreme court held (4-3) that reversal, rather than remand, was the property remedy because the circuit court lacked competency to conduct any further proceedings since the order extending the commitment had expired.Series of RecommitmentsM.W.
Continue Reading Reversal is Remedy Where Court Failed to Specify Grounds for Recommitment

June 29, 2022 – The Wisconsin Supreme Court has ruled that the state’s penalty scheme for operating while intoxicated (OWI) convictions is unconstitutional because it allows a penalty enhancement for a refusal to consent to a warrantless blood draw.In State. Forrett, 2022 WI 37 (June 3, 2022), the supreme court held (4-3) that the penalty scheme ran afoul of U.S. Supreme Court precedent that prohibits imposing a criminal penalty for the blood draw refusal, because such a refusal
Continue Reading Wisconsin Supreme Court Rules OWI Penalty Scheme Unconstitutional

June 28, 2022 – A lawsuit filed to block the release of a list of all Wisconsin businesses with over 25 employees that had at least two employees test positive for COVID-19 is barred by the state public records law, the Wisconsin Supreme Court has ruled.In Wisconsin Manufacturers and Commerce v. Evers, 2022 WI 38 (June 7, 2022), the supreme court held 4-3 that a provision that generally prohibits the pre-release judicial review of decisions to release records
Continue Reading Lawsuit to Stop Release of COVID-19 Testing Data Barred by Public Records Law

June 23, 2022 – An insurance policy that covered physical damage to property and losses caused by a suspension of operations did not cover losses caused when a coffee shop closed because of the pandemic, the Wisconsin Supreme Court has ruled.In Colectivo Coffee Roasters, Inc. v. Society Insurance, 2022 WI 36 (June 1, 2022), the supreme court unanimously held that neither the physical presence of COVID-19 virus particles nor the a state order closing the coffee shop amounted
Continue Reading Loss From COVID-19 Closure Not Covered by Property Insurance Policy

County v. Buffalo v. Kevin J. Rich, 2020AP1526, 6/7/22, District 3 (1-judge opinion, ineligible for publication); case activity (including briefs)

The court of appeals rejected all three of Rich’s challenges to his OWI 1st conviction. It held that the deputy did have reasonable suspicion to stop Rich’s jeep and to expand the stop to require field sobriety tests. It also held that even though Rich gave six breath samples, he consented to and completed just one breath test.
Continue Reading COA affirms OWI 1st; Rejects Challenges to Traffic Stop, FSTs, and Consent

June 9, 2022 – The Wisconsin Supreme Court will not hear the appeal of a criminal defendant who sat in jail for 113 days before his preliminary hearing.In 2018, Nhia Lee was arrested on felony drug charges in Marathon County. After Lee’s initial appearance, the circuit court deemed him eligible to be represented by a public defender.It took the county 110 days to find a private lawyer willing to represent Lee. As a result, he wasn’t brought before the
Continue Reading Review of Defendant’s Appeal Over Lack of Counsel was Improvidently Granted

June 8, 2022 – The Wisconsin Department of Justice (DOJ) erred by revoking a concealed weapons permit issued to a man who was convicted of disorderly conduct after threatening his wife, the Wisconsin Supreme Court has ruled.In Doubek v. Kaul, 2022 WI 31 (May 20, 2022), the supreme court unanimously held that a disorderly conduct conviction under Wisconsin law does not constitute a misdemeanor crime of domestic violence, a category of offenses which under federal law bars offenders
Continue Reading Disorderly Conduct Conviction No Bar to Concealed Carry Permit

June 8, 2022 – A defendant must present more than conclusory allegations to be entitled to an evidentiary hearing on a motion claiming ineffective assistance of counsel, the Wisconsin Supreme Court has unanimously ruled.  In State. Ruffin, 2022 WI 34 (May 26, 2022), the supreme court held that a defendant claiming that his lawyer was ineffective because she withdrew a request for a self-defense instruction was not entitled to a hearing, because his testimony showed that his actions
Continue Reading Sufficient Facts Alone Not Enough to Mandate Machner Hearing

May 31, 2022 – The judicially-created rule that grants an automatic stay to a defendant appealing an involuntary medication order does not apply to pre-trial proceedings, the Wisconsin Supreme Court has ruled.In State v. Green, 2022 WI 30 (May 13, 2022), the supreme court held that the rule should not apply to pre-trial proceedings because application of the rule was making it difficult for the state to bring criminal defendants to competence within the 12-month period set by
Continue Reading Automatic Stay of Involuntary Medication Order Doesn’t Apply Pre-trial

May 24, 2022 – A video recording of an interview of a minor victim was not rendered inadmissible by the fact a separate audio recording of the interview was merged with the video, the Wisconsin Court of Appeals has ruled.In State v. Marks, 2020AP1746 (April 27, 2022), the Court of Appeals District III held that because the alteration enhanced the quality of the recording, the recording was accurate.Calls From Stepmother, TeacherMoyer, a social worker with the Barron County Department
Continue Reading Merger of Audio, Video Does not Make Recording Inadmissible, Court of Appeals Rules

May 24, 2022 – A policy exclusion designed to cut off liability for property damage caused by the insured’s own work applied to interior damages caused by raising a house.In Wiegert v. TM Carpentry, LLC, 2020AP1833 (May 4, 2022), the Court of Appeals District II held that the exclusion applied because the scope of the work included raising the entire house; it didn’t matter that individual components were not mentioned.A Heavy LiftIn October 2014, Terry and Deborah Wiegert hired
Continue Reading Policy Exclusion Applied to Damages Caused by Raising House