WisBar Court Review

WisBar Court Review, published by the State Bar of Wisconsin, includes summaries and analysis of decisions from the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit, as well as other court developments.

Latest from WisBar Court Review

May 4, 2021 – On a deer hunting trip in 2017, Tyler Mueller was using his brother’s AR-15 rifle when it accidentally discharged. A bullet struck Tyler’s foot, which prompted his negligence lawsuit against the gun shop that assembled and sold the rifle. Before the lawsuit was filed, Tyler’s brother (Jordan) took the AR-15 back to the same gun shop that assembled and sold it to him, Bulls Eye Sports Shop LLC (Bulls Eye). Jordan granted permission for a Bulls Eye employee to modify the firearm with knowledge that litigation concerning the hunting accident (and the firearm) was likely. In…
April 30, 2021 – A party with a right of first refusal on agricultural land argued that a competing buyer’s offer was purposely inflated to circumvent the party’s right of first refusal, and asked the circuit court to set a an “exercise price” at fair market value. Recently, in Country Visions Cooperative v. Archer-Daniels-Midland Company, 2021 WI 35 (April 21, 2021), the Wisconsin Supreme Court (7-0) ruled that the circuit court did not err when it set an exercise price that was higher than an expert’s appraised value. “For rights of first refusal, a prospective buyer may choose to offer…
April 30, 2021 – The Wisconsin Supreme Court has unanimously approved Rule Petition 20-07, introducing a comprehensive system of electronic filing for the Wisconsin Court of Appeals and Wisconsin Supreme Court. In the court of appeals, eFiling will become mandatory for attorneys on July 1, 2021. As of that date, all new cases and all new documents in pending cases must be filed through the appellate eFiling system. If you have a pending case, you must opt-in by July 1. The appellate eFiling system is built on the model of circuit court eFiling and will look and feel familiar to…
April 16, 2021 – Ruling on a moot issue that will only guide future action, the Wisconsin Supreme Court has confirmed, once again, that a statewide emergency order limiting capacity at restaurants, bars, and other indoor facilities was invalid and unenforceable. Then-Department of Health Services (DHS) Secretary Andrea Palm issued Emergency Order No. 3 in October 2020, expiring 30 days later, to control the spread of COVID-19 in Wisconsin. It limited indoor gatherings to 25 percent of total occupancy limits. The emergency order exempted certain entities, including daycare centers, schools, government and tribal facilities, health care centers, and other gatherings…
April 13, 2021 – Reporters from the MacIver Institute for Public Policy sued Wisconsin Gov. Tony Evers, alleging they were denied access to a press event because of their organization’s viewpoint. Recently, a federal appeals court rejected that claim. In John K. MacIver Institute et al. v. Evers, No. 20-1814 (April 9, 2021), a three-judge panel for the Seventh Circuit Court of Appeals “found no evidence of viewpoint discrimination under any First Amendment test with which we might view the claim.” Thus, the panel affirmed the decision of the U.S. Court of Appeals for the Western District of Wisconsin,…
The state election laws require municipal clerks or municipal election commissions to change the registration status of electors who may have moved, not the Wisconsin Election Commission (WEC), the Wisconsin Supreme Court has ruled (5-2). In Zignego at al v. Wisconsin Elections Commission, 2021 WI 32 (April 9, 2021), a majority ruled that “the responsibility to change the registration of electors who may have moved out of their municipality is given to ‘the municipal clerk or board of election commissioners,’” rejecting an argument that this statute also applies to the WEC. “To translate, a board of election commissioners is…
The Wisconsin Supreme Court today, in a 4-3 decision, concluded that Gov. Tony Evers exceeded his authority when declaring a public health emergency due to COVID-19, extending previous orders, without the legislature’s consent. Under emergency declarations, the governor may issue other orders deemed necessary for the security of persons or property. One order was a controversial statewide mask mandate, requiring masks in enclosed spaces open to the public, with some exceptions. Petitioner Jere Fabick filed an original action petition to the supreme court last November, challenging the validity of two executive orders under Wis. Stat. section 323.10, which relates…
March 30, 2021 – The U.S. Court of Appeals for the Seventh Circuit has ruled that city of Madison and U.W. police officers are entitled to qualified immunity for excessive force claims brought by a man arrested after a U.W.-Madison Badger Football game. In 2015, Todd and Shelly Cibulka attended a Badger game on Homecoming weekend against Purdue, a 24-7 win for the Badgers at Camp Randall Stadium. The Cibulkas left the game early, about 2 p.m., and ventured to the Library Café’ & Bar to meet friends. They drank alcohol for several hours before their daughter, a U.W. freshman…
March 24, 2021 – Mark Jensen’s wife, Julie, made several statements before she died from poisoning in 1998, directing police to investigate Mark if something happened to her. Jensen has argued, since then, that those statements were inadmissible at trial. Julie wrote a letter before she died, pointing to Jensen as her killer. The neighbor was to deliver the letter to police if something happened to her. She also left a voicemails with a police officer, two weeks before she died, noting Jensen should be a prime suspect if she were found dead. The state charged Jensen, in 1998, with…
March 16, 2021 – The Wisconsin Supreme Court has ruled (4-3) that a defendant may seek discovery of Wisconsin-specific data in a Wisconsin Department of Corrections (DOC) database to challenge his status as a sexually violent person. In 2016, the state petitioned to commit Anthony Jendusa as a sexually violent person, and a licensed psychologist testified that Jendusa was considered a sexually violent person under the statutory definition in Wis. Stat. Chapter 980. The psychologist assessed Jendusa’s likelihood of engaging in future acts of sexual violence using sex-offender risk assessments, which are based on recidivism data collected on sex offender…
Feb. 24, 2021 – The North woods getaway called “Bibs Resort” and its red “bibs” logo was the subject of a recent 4-3 decision by the state supreme court, which ruled that ownership of the tradename and trademark in dispute transferred to a new owner. The decision in Ritter v. Farrow, 2021 WI 14 (Feb. 23, 2021), interprets the Wisconsin Condominium Ownership Act with respect to “intangible” personal property and settles a longstanding dispute on who owns the tradename and trademark in the lakeside resort. Justice Jill Karofsky wrote the majority opinion, joined by Justices Rebecca Bradley, Rebecca Dallet,…
Feb. 19, 2021 – A state appeals court has clarified a circuit court’s authority to order the use of bail money to pay restitution if the bail-related charges are later dismissed but a defendant enters a global plea deal to resolve other outstanding criminal charges. In 2016, James Jones faced criminal charges in four cases, all in Outagamie County. The cases involved possession of burglary tools, burglary, misdemeanor retail theft, and felony retail theft. Prosecutors alleged the crimes took place on different dates. In June 2016, Jones’s mother posted a $2,500 bail bond for one case, possession of burglary tools.…
Feb. 15, 2021 – The U.S. Court of Appeals for the Seventh Circuit has ruled that a jury must decide whether a Wisconsin police officer’s actions were objectively reasonable when he fired four shots into a vehicle, killing one of the vehicle’s occupants. East Troy Deputy Juan Ortiz fired four shots into a vehicle from 50 feet away, killing Christopher Davis. The incident occurred as part of a drug bust. Davis was a passenger in a Pontiac suspected of carrying cocaine for delivery in a restaurant parking lot. When police arrived in a marked car, the Pontiac pulled out and…
Feb. 11, 2021 – The Wisconsin Supreme Court has unanimously upheld an operating while intoxicated (OWI) conviction, eighth offense, despite the defendant’s argument that the state did not meet its burden to prove a prior OWI conviction from 30 years ago. Alfonso Loayza was convicted of an eighth OWI offense in circuit court. But a state appeals court reversed after concluding the state did not prove, by a preponderance of the evidence, that Loayza was previously convicted for OWI in California in 1990. Because the sentences for OWI convictions vary based on the number of prior convictions, the appeals court…
Feb. 4, 2021 – The Wisconsin Supreme Court has ruled that a jail inmate who admitted stealing another inmate’s property in a telephone call with police was not “in custody,” which would have required the officer to give a Miranda warning before questioning him. The defendant, Brian Halverson, returned a call from an officer investigating an incident at a correctional facility at which Halverson was previously housed. The officer did not give Halverson any Miranda warnings prior to initiating the conversation. Miranda warnings, such as the “right to remain silent,” are required prior to a “custodial interrogation” of someone suspected…
Jan. 27, 2021 – The Wisconsin Supreme Court has ruled (5-2) that the Town of Newbold had authority to prohibit a property owner from dividing his lakefront lot into two parcels, rejecting the claim that the town’s ordinance was preempted. Michael Anderson owns property on Lake Mildred, northwest of Rhinelander, with more than 250 feet of shoreline frontage. He wanted to divide the lot into two parcels. However, the Town of Newbold’s Plan Commission denied his request under an ordinance which requires lakefront lots to be a minimum of 225 feet in width. Under Anderson’s proposal, the divided parcels would…