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Jan. 2, 2014 – With federal and state legislation and court decisions impacting lawyers and their practices, contributing authors covered a lot of ground in the 2013 issues of WisBar InsideTrack. Here we highlight the year’s top 10 articles.
Numerous attorneys submitted articles for publication in InsideTrack, which is published online twice per month and provides timely information to State Bar members. We certainly thank those who contributed this year.
Special congratulations to attorney Marcus Berghahn, of Hurley Burish & Stanton S.C. in Madison, who had the most-read article of 2013. Without further ado, we present the top 10 InsideTrack articles of 2013:
1. What Does Missouri v. McNeely Mean For the Prosecution of Drunk Driving in Wisconsin? (May 1)
In this article, Marcus Berghahn discussed a U.S. Supreme Court case decided in April, noting that the decision would impact prosecutions for drunk driving here at home.
The case involved a Missouri man, Tyler McNeely, who declined a preliminary breath test, then refused to have his blood drawn. However, a blood sample was taken anyway, and it revealed that McNeely was over the legal limit.
In Missouri v. McNeely, the court ruled that “dissipation of alcohol” does not support a categorical exception to the warrant requirement when police want breath or blood samples. In McNeely’s case, the court ruled that the sample must be suppressed.
“As a result, Wisconsin’s categorical exception is no longer valid,” Berghahn wrote. “Thus, McNeely changes how Wisconsin trial courts review evidentiary blood draws.”
2. Landlord-Tenant Law: Proposed Bill Impacts Eviction Process, Property Rights (June 5)
Landlord-tenant law is always a hot topic in Wisconsin. In this article, State Bar Legal Writer Joe Forward discussed proposed legislative changes in this area, gaining insight from both tenant- and landlord-side lawyers. The bill became law on Dec. 14, 2013.
Enrolled as 2013 Wisconsin Act 76, Forward explained that the bill would allow landlords to “serve eviction actions by postal mail, fast-track eviction trials, and give landlords more options to deal with the personal property of evicted tenants.”
3. Same-Sex Marriage Decision Impacts Wisconsin, Despite Misconceptions (Aug. 21)
The U.S. Supreme Court made some landmark rulings related to same-sex marriage in 2013, including U.S. v. Windsor. On its face, Windsor does not impact people in states, like Wisconsin, where same-sex marriages are not recognized as valid.
But Madison attorney Christopher Krimmer, in his article, explained that the Windsor decision still impacts gay and lesbian couples who reside in Wisconsin.
“Although the hundreds of state benefits and privileges associated with marriage will remain unavailable to same-sex couples in Wisconsin,” Krimmer wrote, “the Windsor decision does open the door for same-sex couples to receive some federal benefits.”
Watch for Krimmer’s article on federal benefits for married, same-sex couples in the January Wisconsin Lawyer magazine.
4. Final HIPAA Regulations Impose New Obligations on Employer Health Plans (Aug. 7)
ObamaCare drew a lot of headlines this year, but Milwaukee lawyer Todd Cleary drew his own readership with an article on rule changes involving protected health information under the Health Insurance Portability and Accountability Act (HIPAA).
The article explained new rules for employers that sponsor group health plans, and other changes related to an individual’s right to obtain protected health information.
“Employers with health plans have a lot of work to do,” wrote Cleary. “Employers, with the help of lawyers, should carefully review the new rules to determine if any other changes may affect their practices and activities.”
5. Proposed State Budget: Expansion of Medicaid Estate Recovery and the Death of Divestment Planning? (May 1)
West Allis lawyer Bruce Tammi, in this article, was one of the first to describe how the proposed 2013-15 budget bill would impact individuals who received long-term care by expanding the type of property the state could “recover” and from whom.
“Gov. Scott Walker’s budget bill incorporates statutory changes expanding estate recovery to the probate and non-probate estates of community spouses, meaning Medicaid estate recovery claims live on after the recipient dies,” Tammi wrote.
Tammi’s article highlighted important changes buried deep within the budget bill, and played a role in having some of these provisions removed through another bill highlighted recently in an article by Wauwatosa lawyer Carol Wessels.
6. Legislation Affects Publication and Citation of Statutes and Regulations (July 17)
Wisconsin Legislative Reference Bureau lawyers Bruce Hoesly and Michael Duchek, in this article, explain how changes allow legislation to be published electronically. In addition, they explain that electronic citations can be cited as primary authority.
“Act 20 establishes a legal requirement for the LRB to electronically publish updated versions of the Wisconsin Statutes and Annotations on the Internet and allows the LRB to publish the statutes in other electronic formats as well,” the authors wrote.
7. Waivers of Liability: Are They Worth the Paper They are Written On? (June 19)
Madison attorney Timothy Fenner kicked off the summer with an article on waivers of liability, those contract provisions that supposedly insulate host entities or individuals from liability for injuries sustained during activities like swimming or boating.
But do they really? Fenner asked. “Waivers of liability are not invalid per se. But provisions of any such waiver are closely scrutinized and strictly construed against the party seeking to rely on it,” Fenner wrote.
8. KABOOM: Brushing Up On Fireworks Law in Wisconsin (July 3)
In the spirit of the July 4 holiday, Joe Forward explained the state’s fireworks laws, noting that “state law allows local police to impose fines up to $1,000 for possession or use without a permit, extending to parents who let their kids use fireworks.”
Forward highlighted what constitutes a “firework,” and spoke with DNR representatives about the forest fire dangers of fireworks and what happens if fireworks set them off.
“Once a responsible party is identified, there could be charges brought against that individual at the prosecutor’s discretion,” said a DNR forest fire prevention specialist.
9. Legislative Update: Trust Code Overhaul, Estate Recovery, Landlord-Tenant, Informed Consent, and Other Legislative Actions (Nov. 20)
In this article, Forward provided an update on various bills that were explained or otherwise covered by the State Bar or contributing authors during the year.
Those included bills on criminal procedure, estate recovery for long-term care, landlord-tenant law, and informed consent in the physician-patient context, among other bills.
10. The Next Big Thing in e-Discovery: Wisconsin Adopts Federal Rules Regarding Inadvertent Disclosure and Clawback (April 17)
In this article, co-authors explained how Wisconsin’s adoption of certain federal discovery rules “manage the difficulties that arise when privileged communications and trial preparation materials are inadvertently disclosed during discovery, particularly in the course of producing large volumes of electronically stored information.”
Former Richland County Circuit Court Judge Edward Leineweber, current Milwaukee County Circuit Court Judge Richard Sankovitz, and Judicial Council attorney April Southwick note that around 90 percent of discoverable information is produced electrically, and e-discovery battles are waged even in small claims cases.
11. Bonus Article: Look Out: Here Comes the Affordable Care Act (Feb. 6)
The Affordable Care Act (ACA), referred to commonly as Obamacare, was passed several years ago. But the law is slowly being implemented. Madison lawyer Gesina Seiler, in this article, discussed what employers (and their lawyers) should know about.
“This article gives an overview of some requirements that employers will need to comply with now and in the near future,” Seiler wrote. “Lawyers should continue to monitor proposed regulations in order to properly advise clients on ACA requirements.”