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 - Page 2

Feb. 14, 2024 – A circuit court erred by ruling that whether a party had waived its right to arbitration by its litigation conduct was a decision for the arbitrator rather than the court, the Wisconsin Court of Appeals has ruled.

In U.S. Bank National Association v. Klein, 2022AP920 (Jan. 25, 2024), the Court of Appeals (District IV) distinguished a Wisconsin Supreme Court holding that the issue of whether a party had waived its right to arbitration was
Continue Reading Court of Appeals: Waiver by Litigation Conduct Is Issue for Court, Not Arbitrator


Feb. 5, 2024 – A police dog’s warrantless search of the interior of a vehicle did not qualify for an instinct exception to the Fourth Amendment, the Wisconsin Court of Appeals has ruled.In
State v. Campbell, 2020AP1813 (Jan. 23, 2024) the Court of Appeals District III held that even if Wisconsin law were to recognize an instinct requirement, the exception did not apply because a police officer controlled the dog during the search.Traffic StopIn late 2017, Wisconsin
Continue Reading Canine Vehicle Search Controlled by Police Didn’t Meet Instinct Exception

Feb. 5, 2024 – The prohibition in the Wisconin Fair Employment Act (WEFA) against discriminating against an employee based on an arrest record does not apply to information related to civil charges, the Wisconsin Court of Appeals (District II) has held in Oconomowoc Area School District v. Gregory L. Cota, 2022AP1158 (Jan. 10, 2024).Presiding Judge Mark Gundrum wrote the majority (2-1) opinion, joined by Shelley Grogan. Judge Grogan wrote a concurrence and Judge Lisa Neubauer dissented.Brothers FiredThe Oconomowoc
Continue Reading WEFA Ban on Considering Arrest Record Limited to Criminal Charges

Feb. 5, 2024 – A Wisconsin Court of Appeals decision that a judge’s ex parte message to a jury containing unchallenged factual information was harmless error is not a violation of clearly established federal law, the U.S. Court of Appeals for the Seventh Circuit has ruled in Jewell v. Boughton, No. 22-3082 (Jan. 22, 2024).As C.F. was walking from a Milwaukee tavern to her car in 2015, a man threatened to shoot her if she didn’t give up
Continue Reading Court’s Ex Parte Message on Unchallenged Testimony Didn’t Violate Federal Law

Jan. 27, 2024 – The Wisconsin Court of Appeals did not misapply U.S. Supreme Court precedent by ruling against a defendant who argued that he’d invoked his right to remain silent when he said he had nothing to say about a homicide, the U.S. Court of Appeals for the Seventh Circuit has ruled.

In Wesley v. Hepp, No. 22-2968 (Jan. 5, 2024), a three-judge panel for the Seventh Circuit Appeals Court held that the defendant’s statement was equivocal
Continue Reading ‘Nothing to Talk About’ Not Enough to Invoke Right to Remain Silent

Jan. 12, 2024 – A man who applied for asylum in the U.S. and showed he suffered physical attacks in India, based on his politics, still failed to show he’d be persecuted if he were returned, the U.S. Court of Appeals for the Seventh Circuit has ruled.

In Garland v. Singh, No. 23-1192 (Jan. 2, 2024), the Seventh Circuit Court of Appeals also held that the man’s claim under an international treaty failed because he didn’t describe any
Continue Reading Seventh Circuit: Cuts and Bruises Not Enough For Asylum Application

Jan. 11, 2024 – A statute that criminalizes driving with any amount of cocaine metabolites – including non-active ones – in one’s blood is constitutional because it bears a rational relationship to road safety, the Wisconsin Court of Appeals (District IV) has held in State v. VanderGalien, 2023AP458 (Dec. 29, 2023).On July 30, 2019, Dustin VanderGalien caused a fatal head-on collision on County Road B in Dodge County.VanderGalien was driving east in a Chrysler sedan when, driving about
Continue Reading Inclusion of Non-active Substances in Drugged Driving Law Is Constitutional

Jan. 11, 2024 – A corporation is entitled to voting eligibility forms created in guardianship proceedings because the forms are public records whose disclosure is not outweighed by public policy concerns, the Wisconsin Court of Appeals has held.The ruling by the Court of Appeals District II in Wisconsin Voters Alliance v. Secord, 2023AP36 (Dec. 27, 2003) conflicts with a ruling by the Court of Appeals District IV in a similar lawsuit brought by the Wisconsin Voters Alliance (WVA).Records
Continue Reading Split on Court of Appeals Over Access to Voter Ineligibility Forms

Jan. 11, 2024 – The word “shall” in a statute setting a 60-day time limit for circuit court review of family law judgments is not mandatory, the Wisconsin Court of Appeals (District IV) has ruled in Jahimiak v. Jahimiak, 2023AP573 (Dec. 21, 2023).After 27 years of marriage, Ann and David Jahimiak were divorced in La Crosse County in 1999.At the time of the divorce, Ann, age 49, attended college part-time and worked part-time as a sales clerk; David,
Continue Reading Sixty-day Time Limit For De Novo Review of Family Law Judgments is Not Mandatory

Jan. 3, 2024  – A veteran’s conviction of disorderly conduct for his speech and behavior at a Veterans Affairs (VA) clinic did not violate the First Amendment because the clinic is a non-public forum, the U.S. Court of Appeals for the Seventh Circuit has ruled in U.S. v. Krahenbuhl, No. 22-3264 (Dec. 14, 2023).

Jamison Krahenbuhl, an Air Force veteran, visited the Milo C. Huempfner VA Outpatient Clinic in Green Bay in March 2021.

When Tiffany Mueller, a
Continue Reading Disorderly Conduct at VA Clinic Not Protected by First Amendment

Jan. 2, 2024 – The Wisconsin Supreme Court (4-3) has struck down the state’s legislative maps, concluding they violate the contiguity requirement established by Sections 4 and 5 of Article IV of the Wisconsin Constitution.

In Clarke v. Wisconsin Elections Commission, 2023AP1399 (Dec. 22, 2023), the majority urged the legislature to draw and adopt new maps before the August 2024 primary election. If the legislature does not draw the maps or the governor exercises his veto power, the
Continue Reading In 4-3 Decision, Wisconsin Supreme Court Strikes Down Legislative Maps

Jan. 2, 2024 – The Wisconsin Court of Appeals has upheld a decision by an administrative law judge (ALJ) that reversed the Department of Natural Resources’ decision to grant a wetland permit for a golf course development.

In Kohler Co. v. Wisconsin Department of Natural Resources, 2021AP 1187 (Dec. 5, 2023), the Court of Appeals District III held that the ALJ decision was supported by substantial evidence.
New Golf Course
In 2018, the state Department of Natural Resources
Continue Reading Court of Appeals: ALJ Was Correct To Deny Permit for Golf Course

Jan. 2, 2024 – State law bars claims by landowners who filed a lawsuit within three years of discovering flooding on their property but 15 years after the culvert that allegedly caused the flooding was installed, the Wisconsin Court of Appeals has ruled in Ricciardi v. Town of Lake, 2022AP1567 (Dec. 5, 2023).

On Sept. 1, 2015, Carl and Phyllis Ricciardi bought a piece of land in the Town of Lake.

The Ricciardis lived on the land and
Continue Reading Road Rebuild, Not Subsequent Flooding, Triggered Notice Period

Jan 2, 2024 – A Waukesha County Circuit Court erred by retaining jurisdiction over a bitter and long-running lawsuit about four siblings’ inheritance, the Wisconsin Court of Appeals has ruled in a per curiam decision.

In Tikalsky v. Tikalsky, 2020AP1345 (Dec. 6, 2023), the Court of Appeals District II held that the circuit court’s dismissal of one sibling’s claim of undue influence was proper.
Disinherited
In will and trust documents executed in 1999, Donald and his wife Betty
Continue Reading Circuit Court Improperly Kept Jurisdiction Over Family Trust Dispute

Dec. 15, 2023 – Statements an eight-year-old girl made to a nurse and a doctor in the presence of a police officer were made to seek medical care and were thus non-testimonial for Confrontation Clause purposes, the Wisconsin Court of Appeals has held.In State v. Antonio G. Ramirez, Jr., 2021AP1590 (Nov. 15, 2023), the Court of Appeals District II concluded that admitting those statements into evidence did not violate the Sixth Amendment and admission of other statements she
Continue Reading Statements by Abuse Victim to Nurse, Doctor Were Non-Testimonial

Dec. 15, 2023 – Sections of Wisconsin’s hunter harassment law that prohibit approaching or video-recording hunters are unconstitutionally overbroad and vague, the U.S. Court of Appeals for the Seventh Circuit has ruled in Brown v. Kemp, No. 21-1042 (Nov. 13, 2023).Judge David Hamilton wrote the majority opinion, joined by Judge Ilana Rovner. Judge Thomas Kirsch dissented.Monitoring the HuntersJoseph Brown is part of Wolf Patrol. Brown and other Wolf Patrol members monitor hunting on public lands in Wisconsin, to
Continue Reading Seventh Circuit Strikes Down Hunter Harassment Law