Wednesday, November 30, 2005

Burke Sentenced to 6 Months in Jail

Former Dem state Sen. Brian Burke -- once a candidate for attorney general -- said at his sentencing today that he was "deeply sorry," adding: "It's my fault, and I make no excuses."

Burke, D-Milwaukee, was sentenced in Madison today to six months in jail after pleading guilty in October to one felony count of misconduct in office and one misdemeanor count of obstructing an officer.

Dane County Judge William Foust also ordered $75,000 in restitution, which he said could be paid by Burke's campaign fund, and fined Burke an additional $2,500. Foust did not include probation as part of the sentence, citing already overloaded probation agent workloads and stating that he doubted that Burke was in need of the rehabilitative effects of probation.

Burke appeared in a gray, striped suit and light blue shirt. He quietly sat upright and alert throughout the proceeding, and made a brief statement to the court in a steady voice.

"I realize that I'm the reason that we're here today, and I want you to know that I am deeply sorry for what I've done and what I failed to do as a public official," Burke said. "It's my fault and I make no excuses. I'm the one who made the wrong choices, I failed the people who elected me. And it's very difficult because my wife and my three daughters have suffered as much or more than I have, and I realize that it is entirely my fault - I have no one else to blame. Judge, I will spend the rest of my life atoning for this. Thank you."

The six-month jail sentence was what the prosecutor, Dane Co. DA Brian Blanchard, had asked for, and he sounded satisfied following the proceeding.

"I thought it was a fair sentence, and appropriate," Blanchard told reporters. "I thought the judge considered everything submitted by both parties, and I think it was a just result."

Burke's attorney, Bob Friebert, argued against a jail sentence, saying that Burke has already been punished enough for his crime. Friebert painted his client as a man who has been financially, professionally and personally devastated by the case and the charges that he will never live down.

"Even in death he won't escape this," Friebert argued, predicting that the case will be the first line in Burke's obituary.

"Brian is a fallen angel, but he is not the devil," Friebert said. "He's a good and decent person who made a mistake."

But Foust said when he first learned he had drawn the case, he believed the gravity of the charges could have warranted prison time.

"You stole money from the taxpayers of Wisconsin to fund your run for higher office," Foust said. "It always looked that simple to me -- if the state could prove it -- and it looks that simple to me now."

While Burke's guilty pleas mitigated the need for hard time, a strong message needs to be sent with the sentence, said the judge. "I think anybody that steals $75,000 has to be punished."

Burke can serve the term in Milwaukee, near his home, and he is scheduled to begin serving in the next 60 days. He will have work-release privileges.

Tuesday, November 29, 2005

Burke Attorneys Object to Dresang Testimony

Former Sen. Brian Burke's defense attorneys filed a motion Monday to object to the anticipated testimony of University of Wisconsin-Madison professor Dennis Dresang, who has been listed by the prosecution as a witness.

Burke lawyer Jeremy Levinson argued that Dresang's anticipated testimony -- saying that using state employees to conduct campaigns on state time is wrong -- would be "entirely unnecessary," and that the prof's testimony would amount to "political opinion and argument."

See the filing:

In its sentencing recommendation, the prosecution said Dresang would testify that "(u)se of state resources to operate private campaign committees severely disadvantages competing candidates and discourages other potentially qualified candidates from even running for public office. ... the ability to collect 'early' campaign money on a large scale using state resources can essentially dictate victory for officer [sic] holders who violate the law in this way."

See pages 8-9 of the sentencing recommendation for more on Dresang:

Burke Gets Support from Priest, ADA Feiss

When former state Sen. Brian Burke enters the courtroom Wednesday to receive his sentence for one felony count of misconduct in office and one misdemeanor count of obstructing an officer, he'll be armed with a letter of support from Milwaukee County Assistant D.A. David Feiss.

Feiss' letter will be added to the 80-plus page volume of testimonials filed earlier by his defense attorneys as part of a lengthy sentencing recommendation. In his letter, Feiss tells Dane County Judge William Foust of Burke's cooperation with his office in the case against former Senate Majority Leader Chuck Chvala.

After Burke was added to the witness list, Feiss wrote, "Senator Burke on his own offered to and did meet with us voluntarily and was cooperative during our interview. This offer was not part of any plea agreement. In our view Senator Burke answered our questions in a truthful and forthright manner."

See the Feiss letter:

Burke also got a boost from his priest, Rev. Charles Schramm.

"While not seeking to excuse any wrong Brian may have done, I also know that he is a good human being, a caring husband and father, and a man who has a good sense of moral values," Schramm wrote.

See the letter from Schramm:

But not all the correspondence filed with the judge has been on Burke's side. One of Burke's former constituents, Deborah Kristl of Brookfield, filed a letter saying he "has not lived up to his obligation as a public servant. He has instead represented special interests in Madison ... I think punishment should be a jail sentence plus full restitution."

See the letter from Kristl:

Charges Dismissed Against Milwaukee Ald. Donovan has the report


Earlier this year, Alderman Bob Donovan pleaded not guilty to charges that he failed to disclose financial ties to a nonprofit group.

The nonprofit group Donovan founded is called Milwaukee Alliance and the U.S. attorney in Milwaukee said Donovan was initially charged with defrauding the Department of Housing and Urban Development by concealing the fact that his wife had received funds from the non-profit agency.

Under the new agreement, the criminal charges are dropped, but Donovan has agreed the Milwaukee Alliance should go out of business.

In addition, Donovan will have to pay a $2,500 fine and the Milwaukee alderman is forbidden from involvement with non-profit agencies for two years.

Regents Followed Procedure in Marder Firing, Supreme Court Finds

The state Supreme Court sided with the UW System Board of Regents in a decision released today regarding the firing of former tenured UW-Superior prof John Marder.

Marder, who was hired in 1987 as a professor UW-Superior's Department of Communicating Arts, was dismissed in 1999 by Chancellor Julius Erlenbach on multiple charges of misconduct.

The opinion, written by Justice Patience Roggensack, states that the Board correctly employed state statutes in the firing, and dismissed Marder's claims that ex parte communications between Erlenbach and former Regent Toby Marcovich compromised the process.

However, the justices upheld an appeals court decision to send the case back to circuit court to determine if new facts were presented when Erlenbach met with the Board of Regents in closed session immediately before the board voted 11-3 to fire Marder.

"Based on the record before us, we cannot determine whether in the communication between the chancellor and the Board, which occurred immediately before the Board voted to terminate Marder, the chancellor presented new facts to the Board upon which its decision to terminate Marder was based," Roggensack writes.

Chief Justice Shirley Abrahamson and Justice Ann Walsh Bradley did not participate in the decision.

Monday, November 28, 2005

Burkes Cite Family in Arguing for Leniency

After pleading guilty to one misdemeanor and one felony, former Sen. Brian Burke is due to be sentenced by Dane County judge William Foust on Wednesday.

In court filings from last week and today, he and his wife both lamented the affect the case has had on the Burke family.

"My life and the lives of my family will never be the same. ... My focus is on helping my family to heal and helping them rebuild healthy, happy lives," Burke wrote. "I understand the Court must impose punishment for my conduct. My only meaningful request is that the Court's sentence not unnecessarily impedes [sic] my ability to help my family rebuild and heal."

See Brian Burke's personal statement.

Burke's wife Patricia wrote of an incident involving a computer message sent to one of her children.

"It suggested that our daughter should write an essay about 'how my daddy stole millions of tax dollars from good law abiding citizens that trusted him while he represented them as a state senator,'" Patricia Burke wrote. "I felt as though someone had slapped me in the face and I was literally sick to my stomach."

"My husband is not the evil person some critics make him out to be," Burke wrote later in the letter. "We have already suffered more over the last years, and will suffer more in the future, than many criminals who come before you every day. ... All I can ask of the sentence you impose is that it takes into account the whole picture and not only the one that has been advanced by Brian's most severe critics. Brian pled guilty for a number of reasons. A key one was his decision that this needed to end to let our family slip into whatever obscurity we can find to build a new future."

See the letter from Patricia Coorough Burke

Burke Sentence: Prosecution Wants 6 Months in Jail; Defense Favors Restitution and Home Confinement

Court filings in the case of former Sen. Brian Burke show the prosecution, led by Dane County DA Brian Blanchard, is asking for roughly $88,000 in restitution, six months in jail and two years on probation for Burke. Burke is due to be sentenced by Dane County Judge William Foust on Wednesday.

"The defendant's unlawful conduct was planned and calculated, as described in the Criminal Complaint. These multiple decisions reflect a high degree of culpability. ... It was evident that the defendant considered himself beyond the reach of the law because he occupied a position of great authority in state government. Intentionally turning public funds into campaign cash is no different from other forms of embezzlement, and worse than some because of the abuse of public trust," reads one part of the prosecution's sentencing filing.

See the prosecution's recommendations

The defense is arguing for two years of probation, restitution, community service and home confinement in lieu of jail time.

"Those who believe Brian should serve time in jail fail to realize he already has been severely punished over the past three years and will endure the consequences of his offense conduct for many years," reads a recent defense filing.

See the executive summary of the defense recommendations

Friday, November 25, 2005

State Bar Announces Candidates for 2006 Elections

Thomas J. Basting Sr. and Kent I. Carnell, both of Madison, have accepted nominations to run for 2006 State Bar president-elect. Nominees for secretary are Micabil Diaz Martinez of Madison, and Gretchen G. Viney of Baraboo. Nominees for Judicial Council are Jason J. Hanson of Madison, and Robert L. McCracken of Manitowoc.

See more on the elections from the State Bar

Also, the State Bar's Bench and Bar Committee is searching for two outstanding jurists to honor with its annual judicial awards. Nominations are due Dec. 16 for the 2005 Judge of the Year and the Lifetime Jurist Achievement awards. Both awards will be presented at the State Bar Annual Convention in Madison in May.

Send letters of nomination to: Bench and Bar Committee, c/o Patricia Morgan, State Bar of Wisconsin, P.O. Box 7158, Madison, WI 53707-7158, by Dec. 16.

See more on those awards

Wednesday, November 23, 2005

Kesterson Sentenced in E-mail Smear Case

Dane County Board Chair Kevin Kesterson was sentenced Tuesday to 100 hours of community service and fined $1,000 for his actions during an investigation of a smear campaign against another Dane County supervisor. Kesterson was sentenced by Dane County Circuit Court Judge Richard Niess.

Kesterson, a friend of former Dane County Board member Patrick DePula, was charged with lying to police by telling them he did not know about a malicious and defamatory e-mail sent by DePula in the name of County Board member Don Eggert. He entered an Alford plea, meaning he maintained his innocence but also admitted there was enough evidence for him to be found guilty.

See a selection of documents from the case, including Kesterson's plea questionnaire, the defense motion to allow an Alford plea and samples of e-mails entered as evidence.

Read related stories:

Tuesday, November 22, 2005

Decision Issued in Yellow Pages Case

The state Supreme Court issued a decision Tuesday favoring Ameritech in a case involving a yellow pages ad that was mistakenly left out of a phone book.

Case details:

#2004AP239 (2005 WI 153) Rainbow Country Rentals and Retail, Inc. d/b/a Oconomowoc Rental Center v. Ameritech Publishing, Inc. d/b/a Ameritech Advertising Services - THE DECISION OF THE CIRCUIT COURT IS AFFIRMED.
Bradley, J.; dissents - opin. filed.
Abrahamson, C.J. did not participate.

Read the decision

Friday, November 18, 2005

Web Cast: Supreme Court Hears Key Pier Case


As Realtors and Republican lawmakers protest proposed DNR pier regulations, the state Supreme Court is mulling a closely-watched case from Green Lake County.

According to the Supreme Court-provided summary, the case involves a homeowners’ association that owns a 77-foot stretch of lakeshore property with a pier where association members keep their boats. Acting on a complaint, the DNR ordered the association to shorten the pier and remove most of the boat slips. The matter landed in court. The Supreme Court is expected to decide if the administrative law judge correctly balanced the interests of the homeowners against the interests of the public, and whether the removal of boat slips constituted an illegal “taking” without due process.
--You must have a high-speed line and use a Microsoft browser
--Click on the chosen link above.
--Wait until it loads and then adjust volume on your speakers and on the + - scale below the screen on the left.
--Use the "slide'' cues above the screen on the right to page through the interview to the spot you want.
--Watch and listen, or minimize the screen, listen and do other computer work.

Questions? Contact:

Thursday, November 17, 2005

Right to Life Gets Support for FEC Challenge

The ACLU and AFL-CIO were among the organizations filing amicus briefs this week in support of Wisconsin Right to Life's Supreme Court appeal of its case against the FEC.

Wisconsin Right to Life is appealing to establish an exception to McCain-Feingold for grassroots lobbying. The law prohibits funding of electioneering communications within 30 days before a primary election or 60 days before a general election.

The U. S. Supreme Court will hear oral arguments in the case in January.

See the Right to Life release:

Wednesday, November 16, 2005

Supreme Court Accepts Four New Cases

The state Supreme Court accepted four new cases today, including one involving Jackson County and the DNR. This case involves a question of whether a county may, after assuming ownership of property on which taxes have not been paid, return the property to the original owner without that owner's consent. The property at issue in this case is a landfill that presents significant costs and potential liabilities to whoever owns it.

See the remaining cases:

Monday, November 14, 2005

Clifford Aims for '07 Supreme Court Election

Madison lawyer Linda Clifford, who earlier this year had considered running in 2006 for the state Supreme Court seat held by N. Patrick Crooks, now says she's setting her sights on the 2007 race instead.

"The Wisconsin Supreme Court needs the diversity that a practicing lawyer with 32 years of experience will bring to the bench," Clifford said today in a statement. "That is why I began running this summer for one of the Supreme Court's seven seats, and that is why I am today reiterating my intention to continue my campaign for the Court -- for the election on April 3, 2007."

The current term of Justice Jon Wilcox expires July 31, 2007. Clifford said today his decision on whether or not to run for re-election has no bearing on her campaign.

"My decision to run for the 2007 position has been made without regard to whether or not the incumbent or anyone else decides to run, just as my decision not to run for the 2006 position was made without regard to the campaign decisions of others," Clfford said.

See Clifford's statement.

Clifford is currently an attorney at LaFollette Godfrey & Kahn. In July, she filed a campaign finance report for the first half of 2005 showing $203,231 cash on hand, with the majority of her warchest coming from a $140,000 personal loan to the campaign.

Clifford's report shows donations from some well-known Madisonians, such as the Citizens' Utility Board's Charles Higley, former UW administrator Mary Rouse, and James Wood, the president of Wood Communications. She also got a donation from former Doyle budget director David Riemer of Milwaukee.

See Clifford's finance report.

Clifford's current practice includes regulatory work before the state PSC and the Federal Energy Regulation Commission plus immigration issues as well as enviro, media, telecom and other legal work. After getting her UW-Madison law school degree in 1974, she worked as a law clerk in the enviro unit at the Wisconsin DOJ, as an assistant attorney general at DOJ, then as a solo practitioner in environmental law before joining LaFollette Godfrey & Kahn in 1982.

Clifford was up-front about her philosophy in a May interview with WisPolitics, saying she's "been a Democrat all of my life. My political philosophy would be considered liberal." She said she'd bring an important perspective to the court from the angle of a practicing lawyer who knows how the system works.

Crooks Touts New Endorsement List

Talk of a challenger for incumbent state Supreme Court Patrick Crooks is continuing to fade, as the critics who want to take him down just can't seem to find a candidate to challenge him.

A newly released list of endorsements from Crooks' campaign lists three former governors (Govs. Tommy Thompson, Patrick Lucey and Scott McCallum), five former state Supreme Court justices (Bill Bablitch, Louis Ceci, Donald Steinmetz, William Callow and Nathan Heffernan), more than 100 current and former judges, a score of past state Bar presidents, a dozen DAs and other politicos including Republican notables such as Jim Klauser, Scott Klug, Ray Taffora and Tim Sheehy.

Crooks organizer Bablitch, the former justice, says: "This list of supporters is growing daily. Its diversity speaks to the independence, fairness, and intelligence of Justice Crooks."

Crooks may yet be opposed, ventures one court and elections watcher who's unwilling to declare that Crooks is going to get a free ride. But until the "Anybody But Crooks" campaign finds a candidate, Crooks' endorsement list is likely to grow.

Wednesday, November 09, 2005

Attorneys Defend 'Ugly' Mailer as Protected Speech

It's not pretty, it may be unfair, but it is free speech. That was the argument made Wednesday by attorneys arguing against an order to divulge the names of the people behind a 2003 mail piece that tried to tie now-state Sen. Julie Lassa to former Senate Majority Leader Chuck Chvala.

"This piece was ugly. It was guilt by association. It was unfair. But that's what the political process permits," said Brady Williamson, speaking on behalf of seven organizations who filed friend of the court briefs supporting Rongstad's case.

Justices Patience Roggensack, Jon Wilcox and Patrick Crooks recused themselves from the case. Rongstad's attorney, Michael Crooks, is the son of Justice Crooks.

Lassa sued Rongstad, whose company worked on the postcard. The circuit court ordered Rongstad to turn over the names behind the nonprofit The Alliance for Working Wisconsin, the organization that produced the mailer. Rongstad refused to turn over the information, and was sanctioned $65,000 before the case was settled.

Michael Crooks tried to get the court to overturn the sanctions. He said anonymous pamphleteering is a time-honored and constitutionally protected form of political speech. To force the disclosure of those associated with the pamphlet would have a chilling effect on that form of speech.

Crooks argued that the standard for defamation is higher for public officials than for regular citizens because public officials have a greater access to media to defend themselves against charges. He characterized Rongstad as someone who "puts out politically timely pieces relative to the issues of the day."

Pamela McGillivray, Lassa's attorney, said the circuit court judge ruled the postcard was capable of defamatory meaning; it asserted that Lassa was a criminal and acted unethically. She said Lassa sought the names of the people behind The Alliance for Working Wisconsin to add them to the suit and prove malice.

But Lassa attorney John Skilton said there should be some standard for accuracy in mailers. The piece in question went out just days before an election, giving Lassa little time to respond. "The electorate has the right not to be defrauded," he said.

Lassa-Rongstad Case Before Supreme Court Today

The state's high court is due to hear oral arguments this morning in the political case of Julie Lassa vs. Todd Rongstad.

This Dane County case originated as a defamation action filed by a public official (Lassa) against the publishers of an anonymous attack mailer featuring Former Senate Majority Leader Chuck Chvala. According to a court synopsis, the Supreme Court is expected to clarify when the identity of anonymous speakers must be disclosed in a defamation proceeding.

In the Supreme Court, the synopsis says, Rongstad argues that the First Amendment protects the identities of the members of his group. He cites federal cases that establish that groups engaged in political expression need not reveal the names of their members to the government as such disclosure might serve to restrain the freedom of association.

Now-state Sen. Lassa, on the other hand, argues that the constitutional privilege against disclosure is not absolute. She says that group members cannot be permitted to hide behind the privilege when they have acted wrongfully.

See a story from October 2003, when a settlement was announced:

Also before the court today are a case involving the DNR's pier rules and State v. John R. Maloney, the case stemming from the February 1998 death of Sandra Maloney and the subsequent murder conviction of her estranged husband, Green Bay police officer John R. Maloney. The Supreme Court is expected to decide if Maloney will receive a new trial.

See this post for case background from the Supreme Court.

Monday, November 07, 2005

This Week's Supreme Court Oral Arguments

The following is a list of synopses for cases set to be heard by the Supreme Court this week. The synopses come from the court.

9:45 a.m.

03AP2108 Hoida, Inc. v. M&I Midstate Bank

This is a review of a decision of the Wisconsin Court of Appeals, District IV (headquartered in Madison), which affirmed a ruling of the Portage County Circuit Court, Judge Lewis Murach presiding.

This case arises from a construction project involving four eight-unit apartment buildings. The project landed in the court system after one of the developers was indicted and the bank foreclosed. The court proceedings have yielded a question that the Supreme Court now is expected to address: Is giving lenders and title companies immunity from subcontractor negligence claims good public policy?

Here is the background: In October 1996, a Brookfield-based developer called The Villager at Nashotah borrowed $1.32 million from M&I Bank to build four apartment buildings in Plover, a small community south of Stevens Point. The loan agreement specified that M&I “shall not be responsible for any aspect of the construction … or the procurement of lien waivers.”

The Villager hired Packard Construction as the general contractor and Packer hired Hoida, Inc., a lumber company, as a subcontractor to provide prefabricated wall sections and roof trusses.

During the course of the project, M&I and McDonald Title approved requests from The Villager to draw from the loan. Contrary to accepted practice, these draws were permitted without obtaining lien waivers. Eventually, when promised lien waivers did not materialize and progress on the project slowed, the bank and title company cut The Villager off, indicating that no money would be disbursed until the lien waivers were received. Shortly after, it came to light that Packard and Michael Imperl, a principal of The Villager, had misappropriated or diverted between $600,000 and $700,000 of the money they had received. Imperl was subsequently indicted on multiple counts of bank fraud.

In July 1997, Hoida filed a construction lien against the project. M&I foreclosed on the property and eventually obtained a judgment that allowed it to recover its losses. Hoida also obtained a judgment but remains unpaid. Wisconsin law provides priority status to lenders over subcontractors in situations such as this. Hoida estimates that it is owed just under $550,000.

In May 2001, Hoida sued M&I and McDonald Title, alleging that the defendants were negligent in disbursing the money without obtaining lien waivers. The circuit court concluded that the bank and the title company owed no duty to the subcontractor and dismissed the claim.

Hoida appealed, and the Court of Appeals affirmed the lower court but disagreed with the finding that the defendants did not have a duty to Hoida. The Court of Appeals said that the defendants had, in fact, been negligent, but declined to enter a judgment against them for public policy reasons.

Whether a plaintiff who has proven his/her case will be permitted to collect is a public policy decision that the courts must weigh. A court may decline to issue a judgment in favor of a plaintiff if the injury is too remote from the negligence, if the injury is out of proportion to the defendant’s culpability, if allowing recovery would open the door to fraudulent claims, and so on.

Now, Hoida has come to the Supreme Court where it alleges that the Court of Appeals action in this case represents the first time in Wisconsin and in the nation that public policy factors have been applied to insulate lenders and disbursing agents from subcontractor negligence claims.

The bank and the title company, on the other hand, argue that permitting Hoida to recover would place an unreasonable burden on construction lenders and would force disbursing agents to guarantee payment to each and every subcontractor and materials supplier involved in every construction project.

The Supreme Court will decide if giving lenders and title companies immunity from subcontractor negligence claims is good public policy.

10:45 a.m.

03AP2628 Racine Harley-Davidson, Inc. v. State of Wisconsin Division of Hearings and Appeals

This is a review of a decision of the Wisconsin Court of Appeals, District II (headquartered in Waukesha), which reversed a ruling of the Racine County Circuit Court, Judge Charles H. Constantine presiding. The circuit court had reversed a decision of the state Division of Hearings and Appeals.

This case, which the Wisconsin Automobile and Truck Dealers Association notes will affect every car and truck dealer in the state, began with a decision by Harley-Davidson Motor Company to redraw the boundaries of one of its dealer territories, sparking a legal battle. The Supreme Court is expected to clarify the standard of review that the courts use to review an agency’s interpretation of a statute and to decide what is encompassed by the phrase “motor vehicle dealer agreement” in the state statutes.

Here is the background: In 1992, Harley-Davidson Motor Company (Harley) and Racine Harley-Davidson Inc. (Racine Harley) entered into a dealer agreement. Initially, Racine Harley’s territory was defined to include all of Racine County, but in 1994 Harley began using ZIP codes to assign territories and Racine Harley signed a modified agreement reflecting that change. While the contract referenced dealership territories, the actual ZIP code list was a separate document.

In 2001, Harley notified Racine Harley that it was transferring the Burlington ZIP code from the dealer’s assigned territory and to a dealer in Kenosha County. Racine filed a complaint with the Division of Hearings and Appeals (DHA) alleging that the change violated the dealer agreement. Harley moved for summary judgment, asking DHA to dismiss the complaint, and DHA granted Harley’s motion.

Racine Harley sought review by the Racine County Circuit Court, which reversed the DHA, determining that the ZIP code list was, in fact, part of the motor vehicle dealer agreement. The judge said:

It is disingenuous to argue the list is not part of the dealership agreement. The dealership agreement only makes sense if there is a reference to the agreement. The assigned territory is a significant and substantial aspect of the relationship between the parties….

Harley appealed and the Court of Appeals reversed the circuit court after concluding that it must give great weight deference to the DHA decision. The appellate court explained that judicial review of legal conclusions made by a state agency begins with a decision about what, if any, deference the agency decision is due. The highest deference, great weight deference, is given where the Legislature has assigned to the agency the duty of administering the statute and the agency has specialized knowledge. The middle level, due weight deference, is given when the agency has some experience in an area but has not developed expertise that places it in a better position than a court to make judgments about the interpretation of a statute. The final level is no deference at all: the court conducts a de novo hearing either because the issue has not arisen in the past or the agency has no special expertise.

Now in the Supreme Court, Racine Harley argues that the Court of Appeals decision will result in every DHA ruling in every dispute between a manufacturer and a dealer in Wisconsin receiving great weight deference. Racine Harley notes that, following this same reasoning, all decisions by the Tax Commission on questions related to the sales tax and all decisions of the Personnel Commission related to the Wisconsin Fair Employment Act might also be accorded great weight deference by the courts.

For its part, Harley argues that no matter the standard used in review, its contract with Racine Harley permitted it to change the dealer’s territory and the DHA conclusion was correct.

1:30 p.m.

03AP3521 Earl J. Teschendorf v. State Farm Insurance Companies

This is a review of a decision of the Wisconsin Court of Appeals, District I (headquartered in Milwaukee), which reversed an order of the Milwaukee County Circuit Court, Judge Jeffrey A. Kremers presiding.

This case involves a fatal car crash that took place in the course of the victims’ employment. An insurance dispute brought the case into the courts, and the Supreme Court now is expected to decide whether the insurers acted lawfully when they reduced their payments to the family by the amount of worker’s compensation that was paid into the state treasury.

Here is the background: Scott Shira was 33 when he died in a car crash in Woodbury, Minn., while in the course of his employment for Layne Christensen Co., an outfit that drills wells. The crash was caused by an uninsured motorist (UM). Shira was unmarried and had no children. His parents, Bernard and Maria Shira, brought this case. The other plaintiffs are Earl and Linda Teschendorf. Earl was Shira’s passenger and was injured in the accident.

Under Wisconsin’s worker’s compensation law[1], when a person dies in the course of his/her employment and does not have dependents, worker’s compensation benefits are paid to the State of Wisconsin Work Injury Supplemental Benefit Fund. Shira’s benefits amounted to about $160,000 and were mostly paid to the state treasury.

Another state law[2] permits insurance companies to reduce their UM coverage limits by the amount paid under the worker’s compensation law. The insurance policy that covered Shira had a UM limit of $150,000. When American Family Insurance Co. applied the reducing clause, Shira’s parents received nothing.

The Shiras sued, arguing that the reduction was unlawful because the worker’s compensation went into the state treasury rather than to the family. The circuit court ruled in favor of American Family and the Shiras appealed.

The Court of Appeals reversed in a split decision. The majority concluded that the Legislature’s intent in authorizing reducing clauses was to permit insurers to reduce UM payments by the amounts that the insured/heirs/estate actually have received. The dissent, however, argued that the language of the statute is not ambiguous and that the question of whether the family or the state treasury has received the worker’s compensation payout is immaterial.

Now in the Supreme Court, American Family argues that there is no logical reason that the Shiras, who were not dependent upon their son for support, should be able to circumvent the law that limits recovery. The Shiras, on the other hand, argue that there is no logical reason that coverage limits should be reduced when those seeking UM benefits have not collected anything.

The Supreme Court will decide whether and how insurance reducing clauses are to apply in cases where the worker’s compensation money is paid not to the family but to the state treasury.

9:45 a.m.

03AP3353 Jim Hilton v. Dept. of Natural Resources

This is a review of summary decision by the Wisconsin Court of Appeals, which reversed a decision of the Green Lake County Circuit Court, Judge W.M. McMonigal presiding. The circuit court had modified the order of an administrative law judge.

This case involves a homeowners’ association that owns a 77-foot stretch of lakeshore property with a pier where association members keep their boats. Acting on a complaint, the state Department of Natural Resources (DNR) ordered the association to shorten the pier and remove most of the boat slips. The matter landed in court. The Supreme Court is expected to decide if the administrative law judge (ALJ) correctly balanced the interests of the homeowners against the interests of the public, and whether the removal of boat slips constituted an illegal “taking” without due process.

Here is the background: Nelson Page owned land on Green Lake that included a stretch of lakeshore. He subdivided the land several times over the years beginning in 1958, selling off lots to people to build cottages on the back lot and selling shares in the common pier off the riparian (lakefront) property. Over time, the number of boat slips along the pier grew. In 1966, there were six; in the mid-1970s, there were 11; and, by 1990, there were 22.

Under DNR guidelines, a lot with 77 feet of shoreline would be permitted just two or three boat slips. Although the DNR knew about the pier, it took – in the words of the ALJ who initially handled this case – a “wink and nod approach” to the matter until it received a complaint. After the complaint, the DNR took action to reduce the size of the pier substantially, ordering the association to get rid of all but six of the 22 boat slips. The association sought a hearing and the ALJ concluded that the historic use of the pier was for 11 slips because the pier had 11 slips in 1976 when it had been in use for 10 years. The methodology underlying this conclusion is largely the subject of this appeal.

After the ALJ issued his decision, the homeowners’ association sought review in the circuit court. The circuit court concluded that the ALJ’s 11-slip ruling was “arbitrary and not based on sufficient evidence in the record.” The court ruled that 17 slips would be allowed to remain, because that was the number on the pier in 1993 when the municipality where the property is located passed an ordinance that barred the future proliferation of multi-slip piers but allowed piers currently in use to continue at their 1993 capacities.

The DNR appealed the circuit court decision to the Court of Appeals, which reversed the lower court and reinstated the ALJ’s determination. The Court of Appeals concluded that the ALJ’s choice of 1976 as a benchmark for determining the historic use of the pier was appropriate and reasonable.

Now the association has brought the matter to the Supreme Court, which will clarify how decisions on historic use of a property are to be made, determine if the circuit court gave proper deference to the ALJ’s finding, and decide whether this reduction in the size of the pier amounts to an illegal taking of private land by the government.


10:45 a.m.

04AP377 Julie M. Lassa v. Todd Rongstad

This is a certification from the Wisconsin Court of Appeals, District IV (headquartered in Madison). The Court of Appeals may certify cases that cannot be decided by applying current Wisconsin law. The Wisconsin Supreme Court, as the state's preeminent law-developing court, often accepts such certifications from the Court of Appeals. The case began in Dane County Circuit Court, Judge Maryann Sumi presiding.

This case originated as a defamation action filed by a public official against the publishers of an ‘attack ad’ that appeared shortly before an election. The Supreme Court is expected to clarify when the identity of anonymous speakers must be disclosed in a defamation proceeding.

Here is the background: Julie M. Lassa, who is now a state senator, served in the state Assembly from 1998-2002 and was elected in an April 2003 special election to the state Senate. Shortly before that election, a flier produced by an organization called The Alliance for Working Wisconsin – a tax exempt group that says its mission is to educate the public via direct communications on public policy issues related to business, taxes, and families – was mailed to voters in the district. The flier criticized Lassa for her supposed connections to Chuck Chvala, former Senate majority leader.

Lassa sued Todd Rongstad, whose company had worked on the mailer. During the discovery phase of the case, Lassa attempted to learn the identities of the people behind The Alliance but Rongstad refused to divulge them. The circuit court ordered Rongstad to supply this information but Rongstad did not comply. The court sanctioned Rongstad and entered an order for default judgment against him, but before final judgment was entered Ronstad and Lassa reached a stipulated settlement that dismissed the defamation claim, set the amount of sanctions to be levied against Rongstad, and reserved Rongstad’s right to appeal the imposition of the sanctions.

This case is Rongstad’s appeal. He first went to the Court of Appeals, which noted that the case raises an issue that has not previously been decided in Wisconsin: when the identities of anonymous speakers must be disclosed in the context of a defamation action by a public official. The Court of Appeals certified the case to the Supreme Court.

In the Supreme Court, Rongstad argues that the First Amendment protects the identities of the members of the Association. He cites federal cases that establish that groups engaged in political expression need not reveal the names of their members to the government as such disclosure might serve to restrain the freedom of association.

Lassa, on the other hand, argues that the constitutional privilege against disclosure is not absolute. She says that group members cannot be permitted to hide behind the privilege when they have acted wrongfully.

The Supreme Court will clarify the circumstances under which an anonymous speaker may be required to identify him/herself in a defamation action.

1:30 p.m.

03AP2180 State v. John R. Maloney

This is the second time this case has come before the Wisconsin Supreme Court. This is a review of a decision of the Wisconsin Court of Appeals, District III (headquartered in Wausau), which affirmed an order of the Brown County Circuit Court, Judge Peter Naze presiding.

This case stems from the February 1998 death of Sandra Maloney and the subsequent murder conviction of her estranged husband, Green Bay Police Officer John R. Maloney. The Supreme Court is expected to decide if Maloney will receive a new trial.

The Supreme Court first heard this case last April. Its review focused on the actions of the man who prosecuted the case, former Winnebago County District Attorney Joe Paulus, who was convicted of taking bribes in 22 cases between 1998 and 2000 and sent to federal prison. The Court was expected to decide whether Paulus violated the lawyers’ code of ethics in his investigation and, if so, whether the evidence obtained as a result of that violation should have been suppressed. The Court also examined Maloney’s allegation that his defense team, Attorneys Gerald Boyle and Bridget Boyle-Saxton, were ineffective at his trial.

After the oral argument, the Court concluded that it had additional questions that would require further briefing by the attorneys and another oral argument. The questions, which are expected to be the focus of today’s oral argument, are:

1. Whether the Supreme Court has the authority to remand this case to the circuit court for
consideration of a motion for postconviction relief in the interest of justice; and

2. If so, whether the Supreme Court should act upon that authority and send the case back to the circuit court.

Here is the background: On Feb. 11, 1998, Sandra Maloney’s mother entered Sandra’s home and discovered her badly burned body. Fire investigators initially concluded that she had died as a result of the fire, and that the fire had been accidental; the autopsy, however, revealed signs of strangulation, and John Maloney became the prime suspect.

During the investigation, Maloney’s girlfriend, Tracy Hellenbrand, a former criminal investigator, agreed to wear a wire that allowed for the secret video- and audio-taping of her conversations with Maloney. At Maloney’s trial, Paulus – who served as a special prosecutor because the Brown County District Attorney’s Office had worked with Maloney in Maloney’s role as a police officer – showed the jury several hours of videotape and called Hellenbrand to the witness stand to testify that Maloney had confessed the murder to her. Boyle built Maloney’s defense around the theory that Hellenbrand had killed Sandra Maloney. The jury convicted Maloney and he appealed.

In the Court of Appeals, Maloney argued that Boyle had provided an inadequate defense by failing to object to the videotapes on the grounds that Paulus, in directing Hellenbrand’s participation in the secret videotaping, violated the Rules of Professional Conduct for Attorneys, which state, in part:

In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so.

The Court of Appeals concluded that there had been no ethics violation and that, even if there had, suppression of evidence would not be the remedy for this type of violation. The Court of Appeals further found that Boyle’s defense of Maloney, while ultimately unsuccessful, was not ineffective.

In the first round of arguments in the Supreme Court, Maloney renewed his argument that Paulus “egregiously violated his ethical constraints in obtaining evidence” and that the videotapes should be suppressed. He further argued that Boyle, in repeatedly asking the State’s lead investigator at trial whether he thought Maloney was lying, and repeatedly receiving affirmative responses, did him undue harm.

The Supreme Court will decide whether to order a new trial in the interest of justice.

Greg Bump
JR Ross

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