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


Oct. 15, 2021­ ­– The impeachment exception to the hearsay rule does not allow the state to use a defendant’s voluntary statement, obtained in violation of
Miranda v. Arizona, during its case-in-chief, under a recent state supreme court decision.The Wisconsin Supreme Court’s 3-3
per curiam decision affirmed the Wisconsin Court of Appeals decision in

State v. Garcia
, 2020 WI App 71 (Oct. 7, 2020). Justice Brian Hagedorn withdrew from participation, which led to an equally divided
Continue Reading State Cannot Use Defendant’s Statement to Rehabilitate Witness

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Oct. 14, 2021 – The Court o​f Appeals District IV has reversed a circuit court ruling that a police officer illegally extended a traffic stop to administer field s​obriety tests because he didn’t observe the driver driving, behaving or talking suspiciously.In
State v. Adell, 2020AP2135-CR (Sept. 16, 2021), the court used a six-factor analysis to assess the validity of the police officer’s decision to extend the traffic stop. The court’s analysis of the factors was governed
Continue Reading Court of Appeals: Odor, Officer’s Training, Prior Convictions Enough to Extend Traffic Stop

 Oct. 14, 2021 – The Wisconsin Supreme Court has issued another extension of a temporary order that allows court reporters to take depositions remotely. The original order was prompted by the pandemic and was issued on March 24, 2020. In that order, the supreme court determined that a court reporter taking a deposition in Wisconsin is not required to be in the physical presence of a witness to administer an oath for a deposition upon oral examination under Wis.
Continue Reading Wisconsin Supreme Court Extends Order That Allows Remote Depositions

Oct. 7, 2021 – A state appeals court has ruled that a restrictive covenant prohibits Door County landowners from converting their parcel into three, single-family units, concluding that the condominium declaration was an improper land division.

The dispute arose in September 2019. Cottage Row Properties, LLC filed an application for a minor land division with Door County for a 7.44-acre tract that fronted Green Bay. Steven Kane and his wife Jacqueline Kane are the only two members of the
Continue Reading Appeals Court Says Condo Plan Divides Land, Violates Restrictive Covenant

​Oct. 6, 2021 – The First Amendment does not prohibit Congress from excluding businesses that offer live adult entertainment from the second round of the Paycheck Protection Program (PPP), the U. S. Court of Appeals for the Seventh Circuit has ruled.In Camelot Banquet Rooms, Inc., et al., v. U.S. Small Business Association, No. 21-2589 (Sept. 15, 2021), a three-judge panel ruled unanimously that when Congress used the term “prurient” to identify a category of business excluded from participating
Continue Reading Seventh Circuit Upholds Congressional Exclusion of Adult Businesses from PPP

July 15, 2021 – A series of digital data discoveries implicated Steven Burch in a murder case. Recently, the Wisconsin Supreme Court rejected Burch’s claim that police obtained the digital data in violation of his Fourth Amendment rights.

In State v. Burch, 2021 WI 68 (June 29, 2021), the supreme court (4-3) upheld the trial court’s decision to allow incriminating cell phone data and (6-1) evidence from a Fitbit device that the murder victim’s boyfriend was allegedly wearing
Continue Reading Cell and Fitbit Data: Supreme Court Upholds Use of Evidence in Murder Trial

July 14, 2021 – The Wisconsin Supreme Court recently held (4-2) that the state’s Department of Natural Resources (DNR) erroneously interpreted the law in concluding that it had no authority to consider the environmental impacts of high-capacity wells.

In 2014 and 2015, the DNR received eight high-capacity well applications. High capacity wells are often used for agricultural irrigation.

At the time, an environmental impact review was required for some wells and not others. However, the DNR sometimes conducted an
Continue Reading Supreme Court: DNR Erroneously Interpreted the Law on High Capacity Wells

June 30, 2021 – The Wisconsin Supreme Court has unanimously ruled that statements made during a post-polygraph interview with a suspect were admissible as evidence, concluding the defendant voluntarily made the statements without police coercion.

Police were investigating allegations of child sexual assault in 2014 in Washburn County. A four-year-old girl told her caregiver that Adam Vice had sexually assaulted her. He asked what he could to clear his name, and officers suggested a polygraph test.

An officer gave
Continue Reading State Supreme Court Upholds Statements made in Post-Polygraph Interview

June 23, 2021 – In another pandemic-related decision, the Wisconsin Supreme Court (4-3) recently ruled that the Dane County Health Department exceeded its authority when it ordered all schools, including private schools, to cease in-person instruction.

Public Health of Madison and Dane County (PHMDC), through local health officer Janel Heinrich, issued a series of emergency orders relating to school closures in 2020.

Before the start of the 2020-21 school year, Heinrich issued an emergency order that closed all private
Continue Reading Supreme Court (4-3): County Health Official Had No Authority to Close Schools

June 4, 2021 – A Milwaukee man challenged a property tax assessment, arguing the assessed value should be zero since contamination rendered the property unmarketable. Recently, the Wisconsin Supreme Court (4-3) disagreed.

In Collison v. City of Milwaukee Board of Review, 2021 WI 48 (June 2, 2021), a 4-3 majority ruled “that by utilizing the income approach to value the property according to its highest and best use as a parking lot, the assessor properly considered the impairment
Continue Reading Supreme Court (4-3) Upholds Tax Assessment on Contaminated Property

June 1, 2021 – The Wisconsin Supreme Court recently issued pandemic-related orders, including one that “no longer requires that personal masking, social distancing, and sanitizing court facilities be part of any plan for circuit court and municipal court proceedings.”

Previously, by supreme court order, circuit and municipal courts were required to operate under COVID-19 safety plans with all participants in the courtroom required to wear face coverings and have protocols for social distancing and regular sanitation.

Those requirements are
Continue Reading Supreme Court Issues Pandemic-related Orders, Denies Eviction Moratorium

May 26, 2021 – The Wisconsin Supreme Court has ruled that an employee who attempted suicide cannot file a tort action for negligence against his employer’s insurer because the state worker’s compensation law provides the exclusive remedy.

Francis Graef filed a lawsuit against his employer’s worker’s compensation insurance carrier, Continental Indemnity Company, alleging that Continental was negligent because it failed to approve payment for refills of his anti-depressant medication.

Graef began taking the medication after a workplace injury. This
Continue Reading Worker’s Compensation was Exclusive Remedy After Suicide Attempt

May 25, 2021 – A man who was patronizing the Saukville tavern where he worked does not have immunity from liability after he physically ejected a drunk patron and caused severe injuries, the Wisconsin Supreme Court has held.

In Stroede v. Society Insurance and Railroad Station, LLC, 2021 WI 43 (May 18, 2021), a majority (4-1) ruled that Jacob Tetting did not have immunity under Wis. Stat. section 895.529, which says “possessors of real property” have no
Continue Reading No Trespasser Immunity After Bar Altercation, Supreme Court Says

May 18, 2021 – The Wisconsin Supreme Court has concluded that proposed procedures for anticipated redistricting litigation ”are unlikely to materially aid this court’s consideration of an as yet undefined future redistricting challenge.”

The court declined to adopt procedures that would send any redistricting litigation directly to the state supreme court, rather than federal courts, as an “original action.”

Scott Jensen, former speaker of the state Assembly, joined the Wisconsin Institute for Law and Liberty (WILL) in filing the
Continue Reading State Supreme Court Rejects Proposal on Redistricting Litigation Procedures

May 12, 2021 – The Wisconsin Supreme Court recently upheld a conviction for operating or going armed with a firearm while intoxicated despite the defendant’s argument that the statute was unconstitutionally applied to him.

Under Wis. Stat. section 941.20(1)(b), whoever operates or goes armed with a firearm while under the influence of an intoxicant is guilty of a Class A misdemeanor.

Mitchell Christen was convicted under this statute after an altercation with roommates in 2018. A jury convicted
Continue Reading Supreme Court Upholds Conviction for Going Armed While Intoxicated

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
Continue Reading Spoliation of Gun Evidence: Appeals Court Rejects Dismissal as a Sanction