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 12, 2022 – The state statutory scheme that governs medical malpractice lawsuits does not apply to bar a wrongful death lawsuit filed against a community-based residential facility (CBRF), the Wisconsin Supreme Court has ruled.In Estate of Anne Oros v. Divine Savior Healthcare Inc., 2020 WI 27 (May 6, 2022), the supreme court unanimously held that because CBRFs are not included in the statutory scheme’s list of providers, a wrongful death lawsuit brought by the adult child of a
Continue Reading Wrongful Death Claim Can Proceed Against Community-Based Residential Facility

May 6, 2022 – A statue that extends the time limits to file lawsuits by mentally ill persons didn’t toll the three-year statute of limitations for a lawsuit against a long-term care provider brought by the estate of a mentally ill person, the Wisconsin Court of Appeals has ruled.In Estate of Cohen v. Trinity Health Management, LLC, 2021AP1195 (April 14, 2022), the Court of Appeals District IV held that the statute didn’t apply because the decedent’s mental illness
Continue Reading Tolling Statue Didn’t Apply to Lawsuit Brought by Estate of Mentally Ill Person

May 6, 2022 – The U.S. Supreme Court’s decision in Keller v. State Bar of Cal., 496 U.S. 1 (1990), in which the Court upheld a challenge to a mandatory state bar association, remains good law, the U.S. Court of Appeals for the Seventh Circuit has held.In File v. Martin et al, No. 20-2387 (April 29, 2022), a three-judge panel ruled that “File’s claim is squarely foreclosed by the Supreme Court’s decision in Keller,” and that only the U.S.
Continue Reading Seventh Circuit Rejects Challenge to State Bar’s Mandatory Status

May 6, 2022 – The Wisconsin Court of Appeals has ruled that a defense lawyer did not provide ineffective assistance of counsel by failing to object to a police officer’s testimony about the truthfulness of a confidential informant.In State v. McReynolds, 2021AP943 (April 12, 2022), the Court of Appeals District III held that the lawyer’s failure to object was not ineffective assistance of counsel because the officer’s testimony was not unconstitutional vouching testimony.Testimony About TruthfulnessIn 2014, the Eau
Continue Reading Failure to Object to Police Testimony About Informant Not Ineffective Assistance of Counsel

May 6, 2022 – A company that fired an employee who admitted to felony charges that were the subject of deferred prosecution agreements did not violate the Wisconsin Fair Employment Act (WFEA), the Wisconsin Court of Appeals has ruled.

In Vega v. Labor and Industry Review Commission, 2021AP24 (April 19, 2022), the Court of Appeals District III held that because the agreements were part of the employee’s arrest record rather than his conviction record, the company did not
Continue Reading Firing Worker Based on Deferred Prosecution Agreements Did Not Violate WFEA

May 3, 2022 – The City of Brookfield committed an unconstitutional taking by conditioning its approval of a land split on the completion of a through street across a parcel located between two subdivisions, the Wisconsin Court of Appeals has ruled.In Fassett v. City of Brookfield, 2021AP269 (April 20, 2022), the Court of Appeals District II held that the city failed to show that building the through street was closely related to a government interest.Two Dead EndsBridget Fassett
Continue Reading Requiring Property Owner to Build Through Street Was Unconstitutional Taking

A trial judge’s modification of a special verdict question confused a jury considering whether to extend a woman’s involuntary commitment, the Wisconsin Court of Appeals has ruled.

In Outagamie County v. C.J.A., 2020AP2032 (April 12, 2022), the Court of Appeals District III held that the modification asked the jury to consider the woman’s future dangerousness, when the relevant statute required the jury to consider the woman’s current dangerousness.
Threat Against Judge
In 2016, C.J.A. was committed under Wis. Stat.
Continue Reading Change to Special Verdict Question Confused Jury Considering Re-Commitment

April 26, 2022 – The Wisconsin Supreme Court has ruled that a defendant collaterally attacking a prior conviction based on a claimed violation of her right to counsel bears the burden of proving that violation, even where no transcript of the prior trial exists.In State v. Clark, 2022 WI 21 (April 20, 2022), the supreme court held (4-3) that the standard for adjudicating a collateral attack on a plea should apply to a collateral attack on a conviction
Continue Reading Missing Transcript Does Not Shift Burden to Prosecution in Collateral Attack on Conviction

April 25, 2022 – In a unanimous decision, the Wisconsin Supreme Court has upheld the results of a recount that resulted in a five-vote margin of victory for a schools referendum in Racine in 2020.In Sewell v. Racine Unified School District Board of Canvassers, 2022 WI 18 (April 12, 2022), the supreme court held that a statute that allows for ballots to be opened in circuit court when a recount is challenged did not apply to a lawsuit alleging
Continue Reading Wisconsin Supreme Court Upholds Recount of Racine Schools Ballot Measure

​April 20, 2022 – Redistricting maps drawn by the Wisconsin Legislature but vetoed by Governor Tony Evers will govern state legislative elections beginning this November, the Wisconsin Supreme Court ruled last week.​In

Johnson v. WEC, 2022 WI 19 (April 15, 2022), the supreme court (4-3) held that the legislature’s maps were the only maps among the six submitted to the court last year that met all the legal requirements for redistricting.Under the decision, maps dr​awn by Gov. Evers
Continue Reading In 4-3 Decision, Wisconsin Supreme Court Chooses Legislature’s Redistricting Maps

The Wisconsin Supreme Court has ruled that a subpoena for the results of a diagnostic blood draw did not violate a suspect’s Fourth Amendment rights, even though the subpoena came after the results of a warrantless investigative blood draw on the suspect were made known to the police.

In State v. Van Linn, 2022 WI 16 (March 24, 2022), the supreme court held (6-1) that the independent source doctrine, an exception to the exclusionary rule, applied to the
Continue Reading Subpoena of Hospital Blood Draw Did Not Violate Fourth Amendment

April 15, 2022 – The Board of Review for the City of Kenosha properly determined that a nine-acre parcel of raw, unimproved land was correctly assessed as residential, the Wisconsin Supreme Court has ruled.In State of Wisconsin ex rel Nudo Holdings, LLC v. Board of Review for the City of Kenosha, 2022 WI 17, (April 12, 2022) the supreme court held that the board’s determination was proper because the board concluded that the land was not primarily used for
Continue Reading Wisconsin Supreme Court Upholds Residential Assessment for Raw Land

​​​​
April 7, 2022 – State law did not authorize the Department of Corrections (DOC) to deduct 50% of an inmate’s wages to pay restitution because a judgment of conviction (JOC) specified that 25% of the inmate’s wages were to go toward restitution.In

State ex rel Ortiz v. Carr, 2020AP1394 (March 17, 2022) the Court of Appeals District IV held that the terms of the JOC regarding the deduction amount were not ambiguous and that the DOC was
Continue Reading Terms of Circuit Court Judgment Controlled Amount Deducted from Inmate’s Pay

April 7, 2022 – Exigent circumstances did not justify the warrantless search of a hotel room occupied by a man who allegedly stole a pistol and was reportedly suffering from post-traumatic stress disorder (PTSD) and drug problems, a state appeals court has ruled.In State v. Bourgeois, 2020AP1808-CR (March 23, 2022), the Court of Appeals District II held that because the circumstances of the search did not present a serious and immediate risk to the police officers, they didn’t obviate
Continue Reading Warrantless Search of Hotel Room Not Justified by Exigent Circumstances

April 7, 2022 – A federal district court properly denied a plaintiff’s motion to remand her class-action lawsuit over medical records to state court after it had been removed to federal court, the U.S. Court of Appeals for the Seventh Circuit has ruled.

In Schutte v. Ciox Health, LLC, No 22-1087 (March 1, 2022), a three-judge panel held that the defendant had met the requirements for removal established by Congress in the Class Action Fairness Act (CAFA). The
Continue Reading Class Action Lawsuit Over Medical Records Properly Removed to Federal Court

April 7, 2022 – The Wisconsin Court of Appeals has affirmed a Dane County Circuit Court’s decision to vacate an arbitration award because the arbitrator fell asleep during testimony by the plaintiff’s expert witness.In Imhoff Homebuilders, Inc. v. Taylor, 2019AP2205 (March 31, 2022), the Court of Appeals District IV held that the plaintiffs had shown by clear and convincing evidence that the award must be vacated because the arbitrator failed to perform his duty.Homeowners Claim Arbitrator Fell AsleepHomeowners
Continue Reading Circuit Court Properly Vacated Award Based on Evidence Arbitrator Fell Asleep