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.

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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…
Jan. 21, 2021 – Although Wisconsin law requires a court to hold a preliminary hearing within 10 days of an initial appearance for those in custody on alleged felony charges, Nhia Lee – an indigent defendant – sat in jail for 113 days before his hearing. He remained in custody with no lawyer to represent him because the State Public Defender (SPD) could not find private counsel to take his case. The statutory 10-day deadline for holding a preliminary hearing was repeatedly extended for this reason. Lee ultimately obtained an SPD-appointed attorney and filed a motion to dismiss the case…
Jan. 6, 2021 – The Wisconsin Supreme Court has ruled (5-1) that an aggrieved party’s right to certiorari review of a zoning board’s decision was triggered when a written copy of the decision was filed in the board’s office, not when an oral decision was rendered. Gail Moreschi filed a writ for certiorari review within 30 days after the Village of Williams Bay Extraterritorial Zoning Board of Appeals (zoning board) voted orally to grant a variance requested by Moreschi’s neighbor, Suzanne and William Edwards (Edwards). Wis. Stat section 62.23(7)(e)10 says a party aggrieved by a decision of a zoning board…
Dec. 23, 2020 – The Wisconsin Supreme Court (4-3) recently denied an original action petition challenging a Dane County order that placed restrictions on business and indoor sports activities and prohibited indoor gatherings of extended family and friends. Emergency Order 10, addressing the ongoing COVID-19 pandemic, expired on Dec. 16, 2020. A ruling from the supreme court may have addressed the county’s authority to issue such emergency orders in the future. But a majority declined to hear it. The petitioners – a gymnastics center incorporated as Gymfinity Ltd., as well as parents of children who participate in youth hockey…
Dec. 17, 2020 – A recent state appeals court decision has rejected the “conglomerate argument” when an adult child pursues wrongful death claims leveled against assisted living facilities owned and operated by a larger health care system. Adult children can bring wrongful death claims, on their own behalf, if a parent’s death is allegedly caused by a party’s negligence. When claims involve medical malpractice against health care providers, however, adult children have no standing. Under Wis. Stat. section 655.007 and Czapinski v. St. Francis Hospital, Inc., 2000 WI 80, 236 Wis. 2d 316, N.W.2d 120, adult children of a deceased…
Dec. 14, 2020 – The Wisconsin Supreme Court has clarified that a “stay-at-home” order amid a pandemic is not a basis, on its own, for voters to declare “indefinitely confined” status and vote by absentee ballot without showing photo identification. The Republican Party of Wisconsin filed an original action to the state supreme court in March, seeking a preliminary injunction and a declaration of rights against Dane County. Prior to the April primary election, the Dane County city clerk posted on Facebook that “during this emergency and based on the Governors Stay at Home order I am declaring that all…
Dec. 9, 2020 – An employer unlawfully discriminated against a job applicant based on the applicant’s conviction record, a state appeals court has ruled. Derrick Palmer filed a complaint with the Wisconsin Department of Workforce Development after Cree Inc. (Cree) rescinded a job offer to be a lighting schematic layout applications specialist. Cree manufactures and sells LED lighting products. An administrative law judge concluded Cree did not unlawfully discriminate, but the Labor and Industry Review Commission (LIRC) reversed. A circuit court reversed LIRC, also concluding Cree did not unlawfully discriminate. But in Cree Inc. v. LIRC, 2019AP1671, a three…
Dec. 7, 2020 – A state appeals court has ruled that the City of Monroe is immune from tort claims by a resident who slipped and fell on a city street outside his office, concluding the state’s “discretionary immunity statute” applied to bar the suit. Gregory Knoke slipped on a patch of snow and ice in 2017 and in a subsequent lawsuit, alleged the city was negligent in allowing the snow and ice to accumulate on the street. The city argued that it had governmental immunity from such lawsuits. Wis. Stat. section 893.80(4) provides that no suit may be brought…
Dec. 3, 2020 –The Wisconsin Supreme Court today denied (4-3) an original action petition challenging absentee ballot counts in Milwaukee and Dane counties, concluding the petitioner must file presidential election grievances in circuit court. Chief Justice Patience Roggensack, Justice Annette Ziegler, and Justice Rebecca Bradley all dissented in Trump v. Evers, filed just two days ago by President Donald J. Trump, Vice President Mike Pence, and Trump for President Inc. Justice Brian Hagedorn joined with Justice Ann Walsh Bradley, Justice Rebecca Dallet, and Justice Jill Karofsky to form a majority, denying President Trump’s petition to bypass the lower courts…
Dec. 1, 2020 – An Alford plea allows defendants to maintain their innocence but accept a conviction, so long as a sufficient factual basis exists for each element of the crime. Recently, the Wisconsin Supreme Court clarified the Alford plea requirements. In State v. Nash, 2020 WI 85 (Nov. 19, 2020), the court’s first criminal case decision of the term, the justices unanimously affirmed a decision to deny Kevin Nash’s post-conviction motion to withdraw his Alford plea in a child sexual assault case. In 2015, three minor girls ages 8, 12, and 15, told a forensic interviewer Nash sexually…
Nov. 17, 2020 – A state appeals court has ruled that a man convicted for a seventh offense operating while intoxicated (OWI) charge is not entitled to early release from prison even though he successfully completed a substance abuse program. The decision in State v. Gramza, 2020AP100-CR (Nov. 10, 2020) resolves an apparent conflict between a statute requiring a mandatory prison term for OWI-7th offenders and a statute that allows early release upon successful completion of a treatment program. Seventh-time OWI offenders are subject to a minimum of three years in prison, plus three years of extended supervision, under…