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  • Supreme Court Will Hold Public Hearing on SPD Rate, Takes Other Actions

    Joe Forward

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    Supreme Court chamber in Wisconsin State Capitol

    June 22, 2017 – The state supreme court will hold a public hearing on a petition requesting increased pay for court-appointed lawyers and a declaration of unreasonableness concerning rates paid to attorneys who take public defender cases.

    At the court’s open rules conference yesterday, the last one of the term, the court unanimously voted to set a public hearing date, likely in December, and solicit comments related to petition 17-06, which would raise the per hour fee paid to court-appointed attorneys, under Supreme Court Rule (SCR) 81.02(1), from $70 to $100.

    The petition also asks the court to declare, through SCR 81.02(2), that an hourly rate less than $100 for legal services rendered by private attorneys who take appointments from the State Public Defender, under Wis. Stat. § 977.08, is unreasonable.

    Wisconsin’s current rate is the lowest indigent defense compensation rate in the country. Petitioners say this extremely inadequate rate is causing a constitutional crisis, because the Sixth Amendment demands that criminal defendants receive effective representation, and financial conflicts put that constitutional mandate in jeopardy.

    Petitioners hope a court declaration would clearly express the constitutional violations that occur in failing to increase the pay rate, which the legislature has not done since 1995, when it reduced the rate from $50 per hour to $40 ($25 for travel time). From 1978 to 1992, the pay rate was $35 per hour, $5 less than the current rate of $40.

    The petitioners argue that the Wisconsin Supreme Court has the authority to act on this issue, as a co-equal branch of government charged with authority to uphold provisions of the constitution and ensure the effective administration of justice in Wisconsin.

    Justices Set a Public Hearing

    A number of justices appeared to agree that the $40 per hour rate, which has remained largely unchanged since 1978, is too low. But some justices questioned the court’s authority to make constitutional declarations through a rule change petition.

    “The compensation rate is, frankly, shocking,” said Justice Daniel Kelly. “It needs to increase substantially. However, I do want to make sure that we do it in the correct way.

    “Our authority to address the constitution comes to us generally by cases. Whether we can make a constitutional proclamation as a consequence of a petition, well that I don’t know. … Do we handle the petition like an original action in terms of fact-finding?”

    Joe ForwardJoe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.

    Justice Shirley Abrahamson said in this area of compensation, both the legislature and the judiciary can act, so long as the legislature does not interfere with the primary function of the court, which includes ensuring the constitutional rights of defendants.

    Justice Annette Ziegler said invoking shared legislative-judicial authority is not so simple, since SPD appointment compensation rates are set by the Legislature.

    “I think we can all agree that $40 is much too low, there’s no question about that. The issue is, is it within our province to act. That’s the sticking point,” said Ziegler.

    Through a public hearing, the court will likely ask petitioners and other proponents and/or opponents to address the issue of legislative versus judicial authority, and the court’s authority to make constitutional declarations through the rule-making process.

    Court Will Schedule Hearing on Dues Petition

    The court voted to hold a public hearing, likely in December, on a petition (17-04) that would require the State Bar of Wisconsin to create two budgets, one funded with mandatory member dues and another funded with voluntary member dues.

    Madison attorney Steven Levine argues that mandatory dues should only fund the costs of regulatory programs, including: preparing and participating in rulemaking proceedings before the Wisconsin Supreme Court; administering the fund for client protection; administering the Wisconsin Lawyer Assistance Program (WisLAP); the ethics program; and other regulatory programs that the supreme court may approve after a hearing.

    Levine argues that all other State Bar programs and services not related to these specific regulatory programs should be funded with a voluntary dues budget.

    Other Business

    · The court approved changes to rules that govern education requirements for municipal judges to clarify that the municipal judge orientation and four-credit requirements apply according to calendar year and apply to appointed judges, in addition to elected judges.

    · The court will, as required, set a public hearing on a Judicial Council petition (17-05), which addresses perceived ambiguity in the appellate rules that relate to size, number, and timing of briefs that may be filed in multi-party cases.

    · Finally, the court voted (5-2) to end its practice of holding rules conferences open to the public. Starting next term, conferences on rule-making will be closed.

  • Condo Ownership: Testing the Limits of Wisconsin Laws

    Condominium ownership – owning a cubicle of air floating above the earth – is a peculiar creature of statutory law. William Pharis Horton talks about the state of condominium laws in Wisconsin and the need for updates. “For it to be of most effective use, the laws under which it exists must be kept current and relevant,” he writes.

    Wm Pharis Horton

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    In 1963, Wisconsin and most other states in the country adopted laws permitting the condominium form of real estate ownership. A cubicle of air floating unattached above the surface of the earth while having the properties of a parcel of real estate does not fit the concepts of the common law. Specific statutory authority was necessary to allow this form of ownership and to establish its elements and limits.

    Wisconsin’s first condominium law, Wis. Stat. section 230.70 (1963), merely authorized the legal existence of condominium ownership without much guidance in how to use it. Condominiums created during this early period often reflect this lack of guidance.

    Chapter 703

    The original law was reshaped in 1978, under the guidance of Lowell Sweet, to establish the basis of the condominium law we now use: Wis. Stat. chapter 703. It set patterns and offered a level of guidance and limitation the original had not.

    Flexibility was built into it: sec. 703.30(2) allows substantial compliance with the law to submit a parcel of real estate to condominium ownership status; sec. 703.09(1)(j) permits adaptation of a project to its particular needs so long as the basic requirements for its declaration are met; land use regulations may not be differently applied because of property is a condominium, sec. 703.27.

    net cphorton sbcglobal William Pharis Horton, Georgetown 1963, is a solo practitioner in Madison whose primary area is real estate, especially condominium law. He is a charter member of the American College of Real Estate Lawyers.

    Since the parameters of this type of ownership – and in fact its very existence – depend on statute, as further needs and developments in the field arose, specific statutory fixes were adopted (e.g., permitting local review and approval of certain aspects of condominium documents, sec. 703.115; allowing condominiums to operate shared amenities by use of a master association, sec. 703.155; and simplification of the creation and operation of small condominiums, sec. 703.365).

    A legislative Council Study Committee on Condominium Law, established in the early 2000s, made a number of changes to the condo law – although not a comprehensive rewrite of it: 2003 Wis. Act 283.

    The Need for Ongoing Updates and Review

    Condominium ownership has proven a very dynamic idea. New uses and new types of development and styles of construction have challenged the structure and coverage of the condominium law. In addition to this statutory obsolescence, oversights, incomplete operational procedures, and inconsistencies between it and other laws call for on-going review and revision of condo law.

    (My favorite needed correction is the fact that when Wisconsin’s lien laws, Wis. Stat. chapter 779, were rewritten, the term “mechanics lien” was applied to vehicle repair, while “construction lien” was used for improvements to real estate. The condo law still refers to mechanics liens, sec. 703.22; the term is now probably only appropriate if the condominium is a Winnebago.)

    Another situation underlines the need for the updating and clarification of the condominium law: when condominium owners, who, after control shifts from the developer/declarant to unit owner control, wish to revise their basic documents.

    The goal of the declarant is to create a valid condominium and get its unit sold. The viability of the project as a home (or office in the case of a commercial condominium) is not a primary concern. With experience and use of the project, adjustments to reflect the desires of the unit owners is appropriate. Redrafting is made more difficult if law does not address the type of changes that are needed.

    150 Good Ideas

    Following service on the Legislative Council Study Committee, I began a list of prospective changes to the law, from simple corrections, to supplementation in areas not fully covered by it. I quit when the list hit 150. I have been unable to find or generate legislative interest to address the subject. It does not have the political charisma of other issues.

    Since I was admitted to practice the same year Wisconsin adopted its first condominium law, I find that I am running out of steam to push the statutory updating effort. It is something that should be pursued and the RPPT Section, working through the State Bar, is the logical group to do it.

    If such an effort could be raised, I’ve got 150 good ideas to start on.

  • Wisconsin Economic Development Corporation: Helping Your Clients Thrive in a Global Environment

    The Wisconsin Economic Development Corporation offers resources to help Wisconsin businesses, communities, and people thrive in a globally competitive environment. Jennifer Jin talks about the programs that can provide your clients with financial and technical support to accelerate their success.

    Jennifer H. Jin

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    Transitions and New Beginnings

    Considering that this will be the last blog that I write as the chair of the State Bar of Wisconsin International Practice Section, it seemed appropriate to start by thanking the section for the opportunity to serve in this position over the past two years.

    I give special thanks to my amazing board members for their engaged, excited, and dedicated service to this section. Thank you. It’s been a privilege to serve as your board chair.

    And I welcome Betty Eberle, the incoming chair. Having served with Betty over the last few years, I know that she has the talent, energy, and leadership to be an amazing board chair! Thank you, Betty! You will be great!

    This transition from International Practice chair is just one of many personal transitions over the past few months. In May, I transitioned from private practice and accepted a role as chief legal counsel and compliance officer for the Wisconsin Economic Development Corporation (WEDC).

    It is an exciting transition into an organization that I believe in whole-heartedly, which is why I’ve decided to dedicate my final blog entry to share about the WEDC’s mission.

    About the WEDC

    The WEDC leads economic development efforts for Wisconsin by advancing and maximizing opportunities in Wisconsin for businesses, communities, and people to thrive in a globally competitive environment. It provides resources, operational support, and financial assistance to companies, partners, and communities throughout the state.

    The WEDC is an important resource for lawyers because it can provide your clients with financial and technical support that can help accelerate their success.

    Growing Businesses

    The WEDC’s tailored business development services are designed to help Wisconsin companies at every stage of their development.

    Early-stage companies can benefit from our Qualified New Business Venture tax credit program, which provides a 25 percent state tax credit for individuals who invest in qualified startups, and our Technology Development Loan program, aimed at companies that provide high-tech or innovative solutions with national or global market potential.

    Jennifer Jin com Jennjin01 yahoo Jennifer Jin, Notre Dame 2008, is a chief legal counsel and compliance officer with Wisconsin Economic Development Corporation in Madison.

    Growth-oriented companies around the state are eager to expand their facilities, hire more employees, and add new equipment in order to take advantage of market opportunities, and it is not uncommon for such companies to consider alternative locations for their operational expansion projects.

    The WEDC works with those companies to help them meet their growth objectives in Wisconsin, ensuring that jobs not only stay here in Wisconsin but also that new jobs and new capital investments occur that benefit the state’s economy.

    The WEDC also helps Wisconsin companies fulfill their growth potential by developing export strategies. From trade ventures around the world to intensive training through our ExporTech Program, the WEDC provides the tools, resources, connections, and on-the-ground contacts necessary for Wisconsin companies to build and execute successful targeted international growth strategies.

    Strengthening Communities

    Vibrant communities that offer equal opportunities to Wisconsin’s diverse populations are critical to the state’s economy, which is why the WEDC makes strategic investments in community development projects designed to establish a firm foundation for the economic growth of an area.

    The WEDC’s community development programs are designed to leverage a community’s existing assets or to overcome challenges a community faces in attracting and retaining businesses and the workforce necessary to support them. Environmental contamination, vacant industrial sites, and blight are some of the issues our community development investments help address in order to remove the barriers a municipality faces in pursuing new business development activities.

    The WEDC’s Main Street and Connect Communities programs, Community Development Investment Grant Program and Historic Preservation Tax Credit also help communities enhance the aesthetic appeal of their business districts and deliver on quality-of-life measures necessary to develop strong business activity.

    Building Wisconsin’s Industry Leadership

    The WEDC works with key partners in the state’s leading industries to extend Wisconsin’s competitive advantage in addressing global challenges.

    Our public-private model includes investments in “centers of excellence,” such as the Global Water Center in Milwaukee, to spur research and development, support startup formation and growth, advance product commercialization, and attract new business investments.

    The WEDC has provided seed funding to the Energy Innovation Center in Milwaukee and Starting Block, a software engineering and cybersecurity center of excellence in Madison. We have plans for additional centers of excellence in the aerospace and aviation, advanced composites, and food and beverage fields.

    Developing a Talent Pipeline

    Wisconsin is faced with the challenge of filling current job openings, and the need for workers will outpace the state’s population growth between now and 2030.

    To address that challenge, there is an urgent need to enhance and expand perceptions regarding the career and personal fulfillment opportunities that Wisconsin offers. The WEDC and partners throughout Wisconsin have developed a unified marketing strategy to promote opportunities our state offers for career and personal fulfillment: Think-Make-Happen In Wisconsin.

    We are also collaborating with young professional organizations throughout the state to develop ways to attract and retain young talent in Wisconsin through efforts such as YPWeek, which taps and channels the passion Wisconsin’s young professionals bring to the workplace to build and sustain Wisconsin’s strong workforce.

    Forging Strong, Diverse Partnerships

    We understand there are organizations on the ground that are often closer to the businesses in their community than we are, which is why we work closely with more than 600 economic development partners throughout Wisconsin to ensure that all appropriate resources are made available to companies and communities seeking to maximize their potential.

    Our partners include local and county governments; regional planning commissions; workforce organizations; educational institutions; industry and trade groups; and local, county and regional economic development organizations.

    For more information, see the WEDC’s website, inwisconsin.com.  

  • Ethical Dilemmas:
    Contact with a Person Represented in an Unrelated Matter

    When you need to talk to a witness for a case, and that witness is in jail on an unrelated matter, should you contact that witness’ lawyer before talking with the witness? Are you free to contact a person represented in an unrelated matter?
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    June 21, 2017 – When you need to talk to a witness for a case, and that witness is in jail on an unrelated matter, should you contact that witness’ lawyer before talking with the witness? Are you free to contact a person represented in an unrelated matter?


    I represent a client charged with attempted homicide for shooting at a person on a street corner. When I review possible witnesses on any matter, I always check the names on CCAP to see if there are any pending charges. It turns out that one of the most important witnesses against my client is now in jail on wholly unrelated burglary charges. I would like to go with my investigator to the jail to see if the witnesses will speak to us about the attempted homicide charges.

    Do I need the permission of the lawyer who represents the witness on the unrelated burglary charge to speak to the witness?


    Contact with represented parties is governed by SCR 20:4.2, which provides as follows:

    (a) In representing a client, a lawyer shall not communicate about the subject of the representation with a person 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 by law or a court order.

    (b) An otherwise unrepresented party to whom limited scope representation is being provided or has been provided in accordance with SCR 20:1.2(c) is considered to be unrepresented for purposes of this rule unless the lawyer providing limited scope representation notifies the opposing lawyer otherwise.

    ABA Comment paragraph [4] states

    [4] This Rule does not prohibit communication with a represented person, or an employee or agent of such a person, concerning matters outside the representation. For example, the existence of a controversy between a government agency and a private party, or between two organizations, does not prohibit a lawyer for either from communicating with nonlawyer representatives of the other regarding a separate matter. Nor does this Rule preclude communication with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter. A lawyer may not make a communication prohibited by this Rule through the acts of another. See Rule 8.4(a). Parties to a matter may communicate directly with each other, and a lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make. Also, a lawyer having independent justification or legal authorization for communicating with a represented person is permitted to do so.

    (emphasis added)

    The Rule and comment make plain that the prohibition contained in SCR 20:4.2 applies only to a person or party represented in the same matter in which the contacting lawyer represents a client.

    Thus, the lawyer who represents the client charged with attempted homicide is free to contact the witness without the consent of the lawyer who represents the witness on an unrelated burglary charge.1

    Lawyers are free to communicate with represented persons concerning matters in which the contacting lawyer does not represent any client.

    SCR 20:4.2 also does not prohibit a lawyer from contacting a person who is represented on a different, but related matter. For example, in People v. Santiago, 925 N.E.2d 1122, (Ill. 2010), the Illinois Supreme Court held that prosecutors didn't violate Rule 4.2 by interviewing a mother who was a suspect in a child abuse case without notifying the lawyer who had been appointed to represent her in a separate child protection proceeding arising from the same underlying facts.2

    In Case You Missed It: Read Past Ethical Dilemmas

    Ethical Dilemmas appears monthly in InsideTrack. Check out these topics from recent issues:

    Where Are the Conflicts After a Lawyer Leaves a Firm?, May 17, 2017

    When lawyers leave a firm, do they take their conflicts with them? Or do the conflicts remain at the firm after the lawyer is gone? The answer may come down to this: where is the file, and did that lawyer have help with the case?

    When Do Job Negotiations Require Conflict Waivers?, April 19, 2017

    There is a difference between sending out resumes, and a mutual expression of interest between a lawyer and a firm. So, just when do you need to let a client know that you are seeking a job with another firm?


    1 See also Grievance Comm. v. Simels, 48 F.3d 640 (2d. Cir. 1995); N.Y. State Ethics Op. 884 (2011) and N.Y. State Ethics Op. 904 (2012).

    2 See also State ex. Rel. Oklahoma Bar Assoc. v. Harper, 995 P.2d 1143 (Okla. 2000).

  • On Family Law:
    Is There a Formula for That?

    Many legal issues in family law can be resolved by applying a mathematical formula, such as for setting child support or spousal maintenance. When determining marital property for purposes of division, gifted or inherited property is excluded, unless excluding it creates a hardship for the noninheriting spouse. Determining “hardship” is an issue that requires a lawyer’s advocacy skills rather than a math equation.

    Diane S. Diel

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    June 21, 2017 – Many legal issues in the field of family law are resolved with arithmetic. Obviously, we set child support by applying the percentage guidelines found in Wis. Admin. Code chapter DCF 150. Maintenance has become a sophisticated calculation based on leaving each spouse with a percentage of net income after taxes. There are calculators and apps to do all that. Child placement is routinely established at equal or nearly equal placement. Division of the marital estate is an easy calculation with a property division worksheet, a programmed Excel spreadsheet that embeds the formulas to calculate a 50-50 split.

    When the first “objective” child support formulas were developed, the hue and cry against this idea was remarkable. Judicial discretion was in peril; support figures would not be “fair,” and the end of lawyer advocacy was surely just around the corner. Today, the world runs on child support percentage guidelines, and the numbers calculated by those guidelines are understood to be fair results or even considered by some to be “rights.”

    This trend to mathematical formulas and cookie-cutter child placement and custody arrangements has helped fuel the movement to self-representation in family court. As predicted by Richard Susskind in The End of Lawyers? (Oxford Univ. Press, 2008), the creation of simple or routine solutions to legal issues that can be resolved with straightforward, even fill-in-the-blank documents, makes law a commodity. Setting child support has become a commodity. You don’t need a lawyer for that, you just need your own computer. Lawyers are irrelevant and marginalized.

    Not all areas of family law are quite so precise. Maybe lawyers are not yet completely irrelevant. Take, for example, the topic of “hardship.” Under Wis. Stat. section 767. 61(2)(b) property shown to be gifted to or inherited by one party is not divisible “unless it will be shown to create a hardship.” Hardship is defined by case law as “a condition of financial privation or difficulty.”1 Unlike child support, there is no precise formula for this. Instead, a finding of “hardship is a discretionary finding which we will affirm if there is any reasonable basis for it.”2

    Diane Dielcom ddiel diellaw Diane Diel (Wisconsin 1976) of Diane S. Diel S.C. practices family law in Milwaukee. She is a past president of the State Bar of Wisconsin, past chair of the Wisconsin Collaborative Family Law Council, and past president of the International Academy of Collaborative Professionals.

    Not helpfully, in Asbeck v. Asbeck, the court observed that “Hardship in one case may not be hardship in another case.”3 This translates roughly to “I know it when I see it.” More helpfully, the Asbeck court praised the circuit court’s “reasoned exposition” of its decision and stated that:

    “[the] trial court’s discretionary choice should reflect the variety of considerations weighed and the conclusion logically derived from that weighing process. The result should show something more than an arbitrary choice and something less than application of a fixed standard.”4

    In the more recent Popp v. Popp,5 the court reflected the urge to commoditize the law and observed:

    “Since Asbeck, we have considered fashioning a more definite rule, noting that hardship issues are appearing with regularity in family law cases. We now conclude that a more specific rule is desirable and necessary.”6

    It seems clear that the Popp court is seeking a way to commoditize the issue of hardship. Did it succeed? This is the Popp definition of hardship:

    “The dictionary defines hardship, in part, as ‘privation’ or ‘difficulty.’ Webster’s Third New International Dictionary 1033 (1976). Adopting this definition, we conclude that the party claiming hardship must demonstrate that a failure to include the exempt assets in the marital estate will result in a condition of financial privation or difficulty. As we noted in Asbeck, whether a hardship exists will depend upon the varying considerations in each individual case. Asbeck, 116 Wis. 2d at 296, 342 N.W.2d at 754. A hardship determination must therefore be made in light of the facts and history of the case and the relative financial circumstances of the parties before and after the divorce. We reaffirm our statement in Asbeck that this consideration is not limited to essential needs only.”7

    Is that definition helpful? Consider these case vignettes:

    1) Long-term marriage. Marital estate net of debt is less than $350,000 in assets, and the recent inheritance is approximately $2 million. Neither husband nor wife work; the inheriting spouse has not worked for the entire marriage. Over the course of the marriage, the noninheriting spouse supported the family and included his family gifts into the marriage. The noninheriting spouse receives a monthly pension but will have to pay rent or mortgage payments. The inheriting spouse has a paid-for home in the inherited assets.

    2) Short-term marriage. Marital estate is less than $40,000. Inheritance is $400,000. Young noninheriting spouse does not consistently work. Young inheriting spouse is employed full time. Inheriting spouse has no living family left; noninheriting spouse is being supported by her family.

    Assume there are no issues of transmutation, mixing, or appreciation during the marriage. The only question is whether there is hardship. Are either or both noninheriting spouses in positions of hardship? In Asbeck and Hughes v. Hughes,8 both marriages were 40-plus years. However, no cases in this line of cases turn on the length of the marriage, and instead cases seem to turn on whether the circuit court articulates reasons the court of appeals finds persuasive or credible for why there is a hardship.

    In Hughes, the inability of the wife to provide herself a proper lifestyle without the inherited funds was approved. In Popp v. Popp, the court of appeals did not find the circuit court’s reasons – that the wife’s standard of living would be adversely affected and that she would be “deprived of the economic benefit of her years of contribution to the family unit” – at all consistent with invasion of the inheritance. However, the Popp decision noted that each party received one-half of a substantial marital estate.

    If this article were a trial skills workshop, this would be the time the moderator would say to discuss and advocate your client’s position. The topic of hardship provides a chance for truly, as Susskind would say, individually tailored, carefully handcrafted, “bespoke” services. This is the chance to use advocacy skills to carry the day. In other words, this is an issue for which a math equation might seem like a wonderful idea for lawyers wishing to use a formula and existing forms. Instead, this is an opportunity for lawyers to be relevant.


    1 Doerr v. Doerr,189 Wis. 2d 112, 119, 525 N.W.2d 745 (Ct. App. 1994).

    2 Asbeck v. Asbeck,116 Wis. 2d 289, 295, 342 N.W.2d 750 (Ct. App. 1983).

    3 Id.at 296.

    4 Id. at 295.

    5 Popp v. Popp, 146 Wis. 2d 778, 432 N.W.2d 600 (Ct. App. 1998).

    6 Id. at 792.

    7 Id.

    8 Hughes v. Hughes, 148 Wis. 2d 167, 434 N.W.2d 813 (Ct. App. 1988).

  • West's Jury Verdicts, Bench Decisions, Settlements, and Arbitration Awards

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    June 21, 2017 – As a service to its members, the State Bar of Wisconsin has entered into an alliance agreement with West, a Thomson Reuters business, to provide award information on Wisconsin civil jury trials, bench trials, settlements, and arbitrations. West's editorial staff selects a few key Wisconsin cases from Westlaw's® West's Jury Verdicts – Wisconsin Reports to highlight in each issue of WisBar InsideTrack.

    This Edition’s Featured Cases:

    Suoja v. Owens-Illinois Inc. (U.S.D.C. - W.D. Wisconsin)

    Products Liability - Bench: Defense
    Absestos Claim Results in Defense Judgment

    Budney v. American Fam. Mut. Ins. Co. (Wis. Cir. Ct. - Milwaukee County)

    Bad Faith - Verdict: $236,042
    Jury Awards $236K in UIM Benefits

    M.L.S. v. State Farm Ins. (Wis. Cir. Ct. - Rock County)

    Vehicle Negligence - Settlement: $52,000
    Minor Receives $52K for Dog Bite Injuries

    State Bar members can:

    • Request a full case summary, free of charge
    • Submit their own case results for online publication in Westlaw’s® West's Jury Verdicts – Wisconsin Reports, free of charge
    • Order a paid online subscription to Westlaw’s® West's Jury Verdicts – Wisconsin Reports
    • Contact West: com west.juryverdicts thomsonreuters thomsonreuters west.juryverdicts com or (800) 689-9378

    For State Bar members submitting their own results for publication, West will:

    • Send each submitter a pdf of his/her published case as it appears online in Westlaw’s® West's Jury Verdicts – Wisconsin Reports, free of charge
    • Consider featuring the case in the State Bar’s WisBar InsideTrack publication

    © 2017 Thomson Reuters/West. All rights reserved. Users may download and print extracts of content from this Web site for their own personal and noncommercial use only. Republication or redistribution of Thomson Reuters/West content is expressly prohibited without the prior written consent of Thomson Reuters/West.

  • Case Maker or Case Breaker? Find Out Quickly with The Law of Damages in Wisconsin

    Learn quickly which details matter most when evaluating the viability of potential litigation with PINNACLE’s newly revised The Law of Damages in Wisconsin.
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    June 21, 2017 – It’s summertime, and the living is easy: the open road, the swimming pool, the overgrown lawn (OK, maybe not that last one) beckon. Travel, recreational activities, and outdoor work, however, also can result in accidents and injuries.

    Some folks who were joyful when June finally arrived might appear dolefully in your office months later, seeking to recover damages for their or family members’ injuries.

    But why do some personal injury cases end with “Thank you, members of the jury,” while others (begin and) end with, “Sorry, I don’t think you have a winnable case”?

    The newly revised seventh edition of The Law of Damages in Wisconsin, from State Bar of Wisconsin PINNACLE®, helps tell the difference, by identifying ways in which the Wisconsin Legislature and Wisconsin courts have barred or limited suit in certain situations, against certain individuals or entities, or above certain dollar amounts.

    Contributory Negligence Can Reduce Available Damages

    Here’s an example: Two automobiles collide and a motorcycle runs into one of the cars. Car driver A was at fault; car driver B was not wearing a seat belt and incurred serious injuries; motorcycle operator C, who was not wearing a helmet, also was severely injured. B’s and C’s medical costs exceed the available insurance.

    Will B’s failure to wear a seatbelt and C’s lack of a helmet at the time of the collision affect the availability of damages?

    According to Chapter 31 (Contributory Negligence), “[b]ecause the stated purpose of making seatbelt use mandatory was ‘to promote the safety of the traveling public,’ … it is likely that Wis. Stat. section 347.48 will be considered to be a safety statute and that, as a result, the failure to wear seat belts will be found to be negligence per se.”

    In contrast, the Chapter 31 authors point out, Wis. Stat. section 895.049 states that “the failure to use protective headgear by operators or passengers on motorcycles, ATVs, snowmobiles, or utility terrain vehicles will not reduce the operator’s or passenger’s recovery for injuries or damages in any civil action.” So B’s recovery might be limited, but C’s will not.

    A Defendant Might Have Immunity

    Even when injury victims are blameless, characteristics of the defendant might limit suit or recovery.

    Think about swimmer D, who was in a pool at the same time as a dirty diaper. D became ill but because he left the pool before it was evacuated, neither he nor his physician put two and H2O together, and his ailment initially was misdiagnosed. He spent several weeks in the hospital before dying of complications. D’s spouse wonders if she can sue the physician, the pool operators, or both.

    The answer is “maybe, but. …” Chapter 16 (Wrongful Death) explains that the Wisconsin statutes cap damages in wrongful death cases. “The wrongful death cap [$350,000 in cases involving the death of an adult] applies to a claimant’s noneconomic damages for post-death loss of society and companionship in medical malpractice actions.”

    The chapter also notes that all medical malpractice litigants must comply with Wis. Stat. Chapter 655 (health care liability and injured patients and families’ compensation), which imposes significant procedural hurdles.

    As for the pool operators, a preliminary issue is who they are. If the pool is owned and operated by a municipality, governmental immunity under Wis. Stat. section 893.80(4) might bar the family’s claim.

    Even if the suit is not foreclosed, the statutes cap damages. According to Chapter 16, “[i]n wrongful death claims against local governmental entities, the court has determined that, while Wis. Stat. section 893.80(3) allows each member of an entitled class to recover damages up to the statutory limit, the aggregate damages in an action brought under Wis. Stat. section 895.04 for the loss of the decedent’s society and companionship may not exceed the statutory limit, no matter how many individuals comprise the entitled class.” If the pool is privately owned, governmental immunity will not bar the suit.

    Egregious Misbehavior Does Not Necessarily Lead to High Damages Awards

    Some situations in which harm is severe, foul is obvious, or both seem to cry out for greater penalties against the tortfeasor.

    For example, a potential client tells you her foot was permanently damaged when the lawn tractor she was using continued moving after it tipped over because it lacked one of several common safety switches. A jury might be inclined to award the victim punitive damages.

    But, as the authors of Chapter 4 (Punitive Damages) explain, the Wisconsin Legislature has amended the statutes to limit such damages. Wis. Stat. section 895.043(6) now provides that, “Punitive damages received by the plaintiff may not exceed twice the amount of any compensatory damages recovered by the plaintiff or $200,000, whichever is greater.” The costs of proving negligence will need to be weighed very carefully against the available damages, particularly if the victim has already been made whole for her injuries.

    Three Volumes, Thousands of Case Law and Statutory Citations

    The book’s 41 chapters, packed with thousands of case law and statutory citations, tell nearly everything you need to know to accurately evaluate a case involving damages and to successfully represent a plaintiff or a defendant once the decision is made to proceed.

    The three volumes cover the full range of potential damages, including compensatory and punitive damages, damages for bodily and personal injuries, damages for injuries to property and contractual rights, and third-party damages.

    You’ll learn how to effectively meet evidentiary burdens; analyze the effects of contributory negligence; plan for taxation of damages awards; calculate interest, costs, and attorney fees; and protect your client’s interests in cases involving subrogation.

    How to Order

    The Law of Damages in Wisconsin is available both in print and online via Books UnBound®, the State Bar’s interactive online library. The print book costs $219 for members and $269 for nonmembers.

    Annual subscriptions to Books UnBound start at $159 per title (single-user price, call for full-library and law-firm pricing). Subscribers to the State Bar’s automatic supplementation service will receive future updates at a discount off the regular price.

    For more information, or to place an order, visit the WisBar Marketplace or call the State Bar at (800) 728-7788 or (608) 257-3838.

  • Alaska Lawyer Journeys to Wausau with Help of Northwoods Bus Tour

    Moving from Alaska to northern Wisconsin, Will Baynard found his opportunity after participating in the 2016 Greater Wisconsin Initiative Bus Tour. The second annual tour in September is a chance to explore your own opportunities for work in the northwoods.
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    2016 Greater Wisconsin Initiative Bus Tour

    Last fall, Will Baynard, third from right, poses with participants at the start of the 2016 Greater Wisconsin Initiative Bus Tour – which helped him find his current position with Wisconsin Judicare.

    June 21, 2017 – After five years of practicing law in Anchorage, Alaska, Will Baynard moved back to the Midwest to be closer to family.

    “I moved into my sister’s basement in Minnesota and applied to join the Wisconsin bar,” he said. He chose Wisconsin over Minnesota, which required another full year of practice for him before applying. He went to law school at Case Western in Cleveland and had worked in Alaska – so he didn’t know Wisconsin at all.

    That’s when he found out about the first State Bar of Wisconsin Greater Wisconsin Initiative Bus Tour last fall. The tour introduced him to northern Wisconsin, and to lawyers and judges practicing in Rhinelander and Wausau.

    “It sounded just awesome to me,” he said.

    He grew up just outside Washington, D.C., but didn’t want to work in a large urban area. “I always thought I was better off in a small town,” Baynard said.

    He talked to many people on the tour – other participants, the lawyers, judges, and community leaders. “It was a lot of fun, with beautiful weather and good food. Everyone was very welcoming – and they were almost begging us to come up there,” he said. “It was very well planned.”

    Practicing in 33 Northern Wisconsin Counties

    A month later, he found his job in Wausau with Wisconsin Judicare, where he travels to 33 northern Wisconsin counties. “That’s our service area – the northwoods.” He is getting to know the fly fishing areas of northern Wisconsin and was introduced to ice fishing last winter. “Every other day, I wake up thinking there’s no better place in the world.”

    He is now a member of the Marathon County Bar Association. “There’s a good number of lawyers my age. They’ve all been very welcoming,” he said.

    The tour was the catalyst for him to land his job. “The bus tour gave me some bearings on the area. Otherwise, I’d have been a literal babe in the woods,” he said, joking. “What it offers is amazing. That bus should be packed.”

    Will Baynard in Alaska

    Will Baynard takes a break from practicing law in Anchorage, Alaska.

    Join the Greater Wisconsin Initiative Bus Tour, Sept 15-16

    Looking for an opportunity? There are jobs – and a fulfilling life and career – for lawyers in rural Wisconsin.

    The tour, sponsored by the Wisconsin Law Foundation and the Senior Lawyers Division, takes lawyers into areas where vital legal needs go unmet and access to justice is jeopardized.

    Every other day, I wake up thinking there’s no better place in the world.

    – Will Baynard

    This year’s tour visits Barron, Rice Lake, Ashland, and Bayfield. Meet those who are working in these areas to see if a rural practice is right for you.

    The bus tour is a free opportunity for lawyers and 3L law students – and their spouses or significant others – to connect with local judges, attorneys, and community and business leaders, and to learn more about life and practice in northern Wisconsin.

    The tour is Friday and Saturday, Sept. 15 and 16, and it includes:

    • Bus transportation from Madison;

    • Lunch receptions in Barron on Friday and in Ashland on Saturday, and a dinner and reception in Rice Lake on Friday;

    • Informational sessions with local judges, attorneys, and other business professionals in Rice Lake and Ashland;

    • An opportunity to explore Bayfield and a guided bus tour of Rice Lake;

    • Tours of the courthouses in Barron and Bayfield counties; and

    • Plenty of time to network.

    Participants are encouraged to bring their family along on the tour.

    The bus leaves from the State Bar Center in Madison and goes to Barron, Rice Lake, Bayfield, and Ashland. Riding the bus is not mandatory.

    Applicants selected to participate in the tour must provide a $30 seat deposit, refunded after participation in the tour. Riding on the bus is encouraged but not mandatory; however, the refundable deposit is still required.

    Will Baynard flyfishing

    Will Baynard goes fly fishing in Wisconsin, after moving to Wausau from Alaska in 2016.

    Sign Up Before Aug. 11

    For more information, for the schedule of events, and to apply, visit the tour's website on WisBar.org. Feel free to contact org lberning wisbar Lois Berning at (608) 250-6125 if you have questions.

  • Gov. Tommy Thompson on the Future of Health Care at Health, Labor, and Employment Law Institute, Aug. 17-18

    Gov. Tommy Thompson will bring health care and employment issues into focus at this year’s Health, Labor, and Employment Law Institute, Aug. 17-18, at the Wilderness in Wisconsin Dells. Register by July 28 to save $50.
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    June 21, 2017 – When it comes to determining the future of health care, employment, and the areas where they intersect, all of the predictions and opinions being tossed around can seem confusing and even conflicting.

    Tommy G. Thompson, the former Health and Human Services secretary and four-term governor of Wisconsin, will give his unique experience and perspective to help bring health care and employment issues into focus for attorneys at the this year’s Health, Labor, and Employment Law Institute, Aug. 17-18, at Glacier Canyon Lodge at the Wilderness in Wisconsin Dells.

    Governor Tommy Thompso

    Governor Tommy Thompson speaks at the 50-year member reunion in May 2016 in Delafield.

    Thompson, the speaker at the optional luncheon at the Institute, will share observations on proposed sweeping changes to health care in the U.S., and discuss the role of attorneys in helping employers and health care entities manage new reforms in the face of rapid changes and political controversy.

    Powerful Plenaries, Insightful CLE, Beneficial Networking Opportunities, and More

    Enjoy a late summer getaway and stay on top of changing laws and policies at the federal and state levels by attending the 2017 Health, Labor, and Employment Law Institute.

    Take a closer look at topics like ethics, cyber threat, social media, and whistleblower claims in the Institute’s four plenary sessions.

    The Institute is also your opportunity to network with judges, lawyers, and other legal professionals from across the state and the U.S., and to relax at the Thursday evening cocktail reception and optional dinner at Field’s at the Wilderness, the premier steakhouse of the Dells.

    Three CLE Tracks

    Earn up to 12 CLE credits and 1 EPR credit while receiving robust analysis of critical changes in your practice area. Customize your CLE experience by selecting breakout sessions from the Health Law, Labor and Employment Law, and Practical Perspectives tracks.

    Here’s a sampling of the CLE sessions:

    Health Law Track

    • HIPAA: Not Just for Health Lawyers
    • The Soap Opera of Law: Unique Labor and Employment Challenges in Health Care
    • False Claims Act Litigation in Health Care

    Labor & Employment Law Track

    • Emerging Issues in Restrictive Covenants in Wisconsin
    • Equal Pay for Equal Work: Preventing Gender Discrimination in Compensation
    • Remote Control: Legal Trends in Telecommuting Workplaces

    Practical Perspectives Track

    • Leading a Horse to Water: Getting Tough Cases to the Mediation Table
    • The Eleventh Hour Complaint: Managing Problem Employees
    • Antitrust Red Flags in Hiring and Compensation Practices

    Visit hle.wisbar.org for a complete schedule, CLE session descriptions, and registration information. The Institute will be submitted for general program approval by the Wisconsin Board of Bar Examiners and for Minnesota CLE credit for up to 12 CLE credits, including up to 1 EPR credit.

    Family Fun at Glacier Canyon Lodge in Wisconsin Dells – Register by July 17 for Best Rate

    A limited number of rooms have been reserved at the Glacier Canyon Lodge for Institute attendees. Reserve your room by July 17 to receive the discounted rate. Call the reservation desk at (800) 867-WILD and mention block #524199. After July 17, Glacier Canyon Lodge cannot guarantee room availability or provide a discount on room rates.

    As a Glacier Canyon Lodge guest, you can also take advantage of the many attractions on the Wilderness Resort property.

    Register for the Institute by July 28 to Save up to $50!

    Register for the Institute by July 28 to save $50. If you wish to participate in any optional Institute activities, including the optional luncheon and dinner, be sure to select them during the registration process.

    There are four ways to register:

    • Go online to WisBar.org’s Marketplace
    • Call Customer Service at (800) 728-7788
    • Fax your registration form to (608) 257-5502
    • Mail your registration form to State Bar PINNACLE Registrations, P.O. Box 7158, Madison, WI 53707-7158

  • Supreme Court Assessments and State Bar Dues are Due July 1 – Online Payment Now Available

    Statements for annual Wisconsin Supreme Court assessments and State Bar of Wisconsin membership dues were mailed in May. New this year: online payment option.
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    June 21, 2017 – To date, about one-third of State Bar of Wisconsin members are paying their annual Supreme Court assessments and State Bar dues in a new way this year – via online payment.

    Thanks to a newly revised Supreme Court Rule – 20:1.15, the trust account rule or e-banking rule – that went into effect last July, State Bar members can now pay their annual assessments and dues online.

    Paying online is easy, said State Bar Treasurer John Danner of Minocqua, who has been in practice for nearly 40 years. “With no training, I completed the registration in less than 10 minutes,” Danner said. “It works really well.”

    Who Can Pay Court Assessments and Dues Online?

    Fully enrolled attorneys in good standing – those who have a Bar card – may pay online.

    You cannot pay your dues online if:

    • You are a new member who will join on or before July 1, 2017;
    • You want to change your name or membership status;
    • Your membership is suspended; or
    • Your office would like to pay for firm members in bulk

    Pay Online, by Mail, or by Phone – Pay by July 1 to Avoid Late Fees

    State Bar of Wisconsin membership dues and Wisconsin Supreme Court assessments for fiscal year 2018 (July 1, 2017, to June 30, 2018) are due July 1, 2017. Pay your dues and assessments by July 1 to avoid late fees.

    All members received their statements in May via the USPS. Members may pay:

    · By phone during May, June, and July by calling Customer Service at (800) 728-7788.

    Find Out More

    For more information on the Supreme Court assessments and State Bar dues, see “Pay Annual Court Assessments and Dues By July 1: Members Can Now Pay Online,” in the May 3, 2017, issue of InsideTrack.

    For more information about paying online, see Membership FAQs and Paying Your Assessments and Dues FAQs on WisBar.org, or contact Customer Service at (800) 728-7788 or email at service@wisbar.org.

  • The Innovation Mindset: Getting Back to Lawyers as Counselors

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    June 21, 2017 – How do lawyers compete with nonlawyers and other entities for legal services in today’s environment?

    Madison attorneys Jeff Glazer and Erin Ogden joined moderator Tom Watson for a Facebook Live interview last week at the State Bar of Wisconsin’s Annual Meeting & Conference. This interview followed a panel discussion, “An Innovation Mindset: Think Like a Client,” in which Glazer, Ogden, and other panelists shared their thoughts about how lawyers can leverage technology and competitive disruption to be valued counselors to clients demanding innovative solutions.

    Lawyers as Counselors

    “I really think the future is not in competition,” said Jeff Glazer. Nonlawyers can’t compete with us as counselors. “So we need to be counselors. We have a different skill set. We help clients understand how the world around them relates to what they are trying to do.”

    “Focus on being a counselor versus a scrivener,” says Glazer, a clinical professor at the U.W. Law School’s Law and Entrepreneurship Clinic. “If your practice is simply filling out forms, your practice likely won’t exist in five years.”

    Automation is catching up, Glazer explains, and lawyers will need to figure out how to build these tools into their practices. You don’t need to spend two hours drafting a contract when that contract already exists, but you do have to understand your client’s needs and how to integrate those needs with these forms. 

    Recognize Your Niche

    “Recognize your niche, and do that,” advises Ogden, managing attorney at OgdenGlazer LLC. “Stop trying to be everything to everyone.”

    When forming their practice, Ogden and Glazer decided “we’re going to do what we do really well,” and then help clients find other professionals to get the work done. What are the client’s goals, and how do we help them get there?

    Ogden quickly embraced blogging as a way to deliver information in the way that clients want to get information. Listen to your clients, and they will tell you how to serve better serve them.

    Are You Our Next Legal Innovator? Last Call for Nominations

    November 2016 Wisconsin Lawyer magazine cover

    Are you a Wisconsin Legal Innovator? Know one? Last year’s Wisconsin Legal Innovators, from left, William Caraher, Rebecca Scheller, Sam Owens, Mary Turke, and Colleen Ball, put new ideas to work to solve problems facing their clients and communities.

    Do you know a legal innovator? Are you one? Nominate a Wisconsin Legal Innovator by June 30, 2017.

    Through the “That’s a Fine Idea: Legal Innovation Wisconsin” initiative, the State Bar of Wisconsin is asking the legal community to help it tell the story of legal innovation.

    Tell us about the people and ideas that are changing Wisconsin’s legal landscape. Nominate a Wisconsin Legal Innovator who breaks with tradition to do it better. The Wisconsin Lawyer will feature the people behind the best examples of legal innovation in November.

    Innovation can come in many forms. It could mean:

    • New ways to use technology to improve client service or serve a new market
    • Best practices for promoting workplace diversity
    • New marketing/business development strategies
    • New ways of providing pro bono or reduced-cost services
    • Changes in internal operations that result in greater efficiency

    Learn more or find the nomination form at ThatsaFineIdea.com. The deadline for nominations is June 30, 2017.

  • Implementing Wisconsin’s New Multi-Discharger Variance for Phosphorus

    The Department of Natural Resource’s newly approved multi-discharger variance for phosphorus provides another option for municipal publicly owned treatment plants and other point source dischargers. Vanessa D. Wishart outlines the new policy and its implementation.

    Vanessa D. Wishart

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    In February, the U.S. Environmental Protection Agency (EPA) approved the Wisconsin Department of Natural Resource’s (DNR) Multi-Discharger Variance (MDV) for phosphorus.

    The MDV provides a new variance option for municipal publicly owned treatment plants (POTW), among other point source dischargers.

    The New Variance Option

    The MDV provides permittees with the opportunity to participate in a statewide program that gives point sources facing restrictive phosphorus limits a time extension for compliance in exchange for implementation of a watershed project.

    Vanessa D. Wishart com vwishart staffordlaw Vanessa D. Wishart, U.W. 2011, is an associate in Stafford Rosenbaum's environmental and government law practice areas in Madison, where she concentrates her practice on water, wastewater, and remediation and redevelopment issues.

    Permittees can implement a watershed project through cooperation with the DNR or a third party, or by paying counties a fee of $50 per pound of phosphorus in the permittee’s discharge that exceeds its target value.

    Qualifying for the MDV

    In order to qualify for the MDV, a POTW must be an existing facility that requires a major facility upgrade to comply with its phosphorus limit. This means a permittee must establish that it cannot achieve its limits through another means such as optimization, adaptive management, or water quality trading.

    A POTW must also meet certain primary and secondary indicators to establish that compliance with phosphorus limits would have a substantial economic impact. The primary screener is treatment cost as a percentage of median household income (MHI) in the community serviced by the POTW.

    The DNR uses these secondary screeners for the county in which the POTW is located:

    • transfer receipts as a share of total personal income;
    • jobs per square mile;
    • population change;
    • net earnings by place of residence;
    • job growth; and
    • capital costs as a share of total wages.

    POTWs with an MHI of less than 1 percent will not be eligible to participate in the MDV. Where MHI is between 1 to 2 percent, the county in which the permittee is located must have a score of at least three secondary indicators in order for the permittee to qualify. Where MHI is more than 2 percent, the county in which the permittee is located must have at least two secondary indicators. Permittees in counties with less than two secondary indicators are not eligible regardless of MHI.

    Applying for the MDV

    POTWs can apply for the MDV in the following circumstances:

    • As part of a permit renewal/reissuance.
    • Within 60 days of a DNR reissuance of a permit.
    • During the permit term if the permit was reissued containing a water quality-based effluent limit (WQBEL) for phosphorus prior to April 25, 2014. (Permit modification required in this case).
    • When there is an existing permit with a compliance schedule that requires selecting a compliance option, the permittee may opt for the MDV option as part of that process.

    After a POTW has applied for the MDV, the DNR has 30 days to review the variance request and issue a final decision. If the DNR does not grant approval within 30 days, the variance is deemed approved and incorporated into the permit as a modification or as part of the reissuance.

    Limits of Phosphorus Load Still Required

    POTWs opting for the MDV are still required to reduce their phosphorus load each permit term.

    As a general rule, the required limits are:

    • Permit term 1: 0.8 mg/L
    • Permit term 2: 0.6 mg/L
    • Permit term 3: 0.5 mg/L
    • Permit term 4: Phosphorus limit compliance

    These limits may be adjusted if they are not achievable. However, interim limits must result in achievement of the “highest attainable condition” for the receiving waterbody. This means that in some circumstances the DNR may institute a limit that is more restrictive than those listed above.

    Meeting the Load Limit

    The MDV requires participating permittees to implement a watershed project that offsets the difference between a POTW’s current actual annual phosphorus load and a target value. The target value is either the total maximum daily load (TMDL) where one has been approved or a default of 0.2 mg/L in the absence of a TMDL. A POTW can meet this offset requirement a number of ways, including through an agreement with the DNR or a third party to implement a watershed project.

    The POTW can also meet this requirement by making payments in the amount of $50 per pound of phosphorus above target value to the county in which the POTW is located. The county must then use that money to implement a watershed project to reduce phosphorus loading.

    DNR Review Process

    The DNR will review the MDV on a number of different occasions. Permit-specific review occurs at each permit reissuance, wherein the DNR will evaluate whether the MDV and related permit terms continue to be appropriate for a particular POTW.

    The DNR will also review annual plans and reports for watershed projects. The DNR will also conduct triennial program level reviews, to evaluate whether the MDV continues to be appropriate at a statewide level, based on new information relevant to current technology and economic conditions.

    The MDV expires Feb. 5, 2027, and permit terms and conditions that reflect the MDV cannot extend beyond this expiration date. However, the DNR may seek EPA approval to extent the MDV for a second ten-year term.

    For additional information on MDV implementation, visit DNR’s phosphorus page.

  • U.S. Supreme Court Shakes Up Patent Lawsuits – Is Inter Partes Review Next?

    A recent U.S. Supreme Court decision narrows where plaintiffs alleging patent infringement may file suit. In this article, two IP trial attorneys explain the development, as well as a challenge to Inter Partes Review (IPR) proceedings.

    Christopher R. Liro & Aaron Thomas Olejniczak

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    June 21, 2017 – Last month, the U.S. Supreme Court upended the 27-year-old venue standard for patent infringement lawsuits, narrowing where plaintiffs may file suit. Will the next Supreme Court term drop an even bigger bombshell?

    The Inter Partes Review (IPR) proceeding, introduced in 2012 as part of the landmark America Invents Act (AIA), created a new administrative procedure to challenge patents outside of the court system. Last week, however, the Supreme Court granted certiorari in a case that may hold IPRs unconstitutional.

    TC Heartland Upends Venue Standards

    On May 22, 2017, the Court issued its decision in TC Heartland LLC v. Kraft Foods Group Brands LLC,1 reversing the Federal Circuit’s interpretation of the patent venue statute,2 first announced in VE Holding Corp. v. Johnson Gas Appliance Co.3

    Chris LiroAaron OlejniczakChris Liro (Michigan 2000) and Aaron Olejniczak (U.W. 2002), of Andrus Intellectual Property Law LLP, are intellectual property trial attorneys who represent parties on both sides of disputes in court actions and in IPR and other proceedings before the U.S. PTO Patent Trial and Appeal Board. Chris is the chair of the State Bar of Wisconsin’s Intellectual Property and Technology Law Section.

    28 U.S.C. § 1400(b) provides: “Any civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.”

    VE Holding interpreted “where the defendant resides” in light of the general venue statute, 28 U.S.C. §1391(c), providing that a defendant is deemed to reside “in any judicial district in which such defendant is subject to the court’s personal jurisdiction.”

    Since personal jurisdiction usually exists in any jurisdiction where accused products reached the stream of commerce, companies that offered products for sale nationwide also faced suit nationwide.

    One result was the growth of certain federal district court jurisdictions, most notably the Eastern District of Texas, but also including the Western District of Wisconsin and others, which attracted plaintiffs who viewed the venues as relatively speedy (“rocket dockets”) or otherwise plaintiff-friendly.

    In 2016, for example, over one-third of all patent cases filed in the U.S. were filed in the Eastern District of Texas. At the same time, VE Holding’s permissive venue standard allowed for the less controversial practice of patent plaintiffs filing in their home venue.

    Decision Significantly Narrows Venue

    In TC Heartland, the Supreme Court held that “resides” as used in Section 1400(b) does not include any venue supporting personal jurisdiction. Rather, it held that earlier Supreme Court precedent limits “resides” in the defendant’s state of incorporation. The Court pointed out that the decision only applied to domestic entities.

    Prior decisions suggest that foreign companies “reside” nationwide, though that issue is expected to face future litigation. Thus, a domestic patent defendant can be sued in its state of incorporation or “where the defendant has committed acts of infringement and has a regular and established place of business.” The scope of the latter provision currently is not well-defined, but likely requires a physical presence.

    For most Wisconsin companies, the good news is that they most likely will no longer face the potential of a patent infringement lawsuit in Texas or other locations where they do not operate, with a big exception: Any company may be sued in its state of incorporation, regardless of the presence of business operations.

    Whether courts in popular states for incorporation, such as Delaware, are inclined to transfer such cases to other venues remains to be seen. But Delaware already requested judicial reinforcements from Pennsylvania in anticipation of increased patent infringement filings.

    In addition, certain companies with nationwide operations may still be sued nationwide under the second part of the venue statute, a point made by Steven E. Anderson, vice president and general counsel of Wisconsin’s Culver Franchising System, Inc., during his June 13, 2017 testimony before the U.S. House Subcommittee on Courts, Intellectual Property, and the Internet. Whether a plaintiff or defendant, all parties should take care not to waive venue defenses or file lawsuits that face certain dismissal.

    Ready for the 12 Annual Door County Intellectual Property Academy?

    It’s coming up. The 12th Annual Intellectual Property Academy in Door County will take place July 13-14, 2017, at the Stone Harbor Resort and Conference Center. Early bird registration runs through this Friday, June 23. Check out the schedule and register now!

    This year’s IP Academy provides a strong framework for lawyers just starting out in the Intellectual Property field and is perfect for seasoned veterans who want updates on the ever changing world of IP. Plus, have some fun! Cruise aboard the historic Chicago Fireboat and bring your family for other vacation opportunities in beautiful Door County.

    Will Oil States Energy Kill the IPR?

    On the heels of its TC Heartland decision, the Supreme Court made another big splash on June 12, 2017, when it granted certiorari in Oil States Energy Services v. Greene’s Energy Group (No. 16-712), on the question of “Whether inter partes review – an adversarial process used by the Patent and Trademark Office (PTO) to analyze the validity of existing patents – violates the Constitution by extinguishing private property rights through a non-Article III forum without a jury.”

    IPRs Have Changed the Patent Litigation Landscape

    Since the first IPR petition was filed in September 2012, petitioners have filed more than 6,000 IPR challenges to previously issued patents.

    Though similar to the earlier reexamination proceedings, which also allowed an entity to challenge the validity of an issued patent outside of the court system, the ability for more robust discovery and an expedited schedule – final decisions typically are issued within 18 months of when a petition is filed – have resulted in IPR filings exceeding what the PTO first expected.

    One result of this is an impact on the number of cases filed in court and the treatment of cases that are filed. More than 80 percent of patents challenged in IPRs and the related Covered Business Method (CBM) procedure are also being litigated in the federal courts.

    When a court defendant files an IPR petition, the PTO usually institutes a proceeding. And in almost all cases the court will stay the litigation before or upon institution. IPR challenges, moreover, are generally successful – in many cases, challenged claims are ruled invalid.

    While current trends suggest that IPRs may not be the “death squads” initially feared, the number of filings remains strong. In just a few short years, the IPR (and related CBM and Post-Grant Review (PGR) AIA proceedings) fundamentally changed how patents are litigated in the U.S.

    Supreme Court to Address Constitutionality

    Now, several years in, the Supreme Court will decide the question of whether the IPR procedure is constitutional.

    The challenge to the IPR statute is based on the premise that, once granted, a patent is a private right.  As such, it can be extinguished, in accordance with Article III and the Seventh Amendment to the U.S. Constitution, only through a jury proceeding in the federal courts, and not through an administrative proceeding.

    The challenge relies, in part, on McCormick Harvesting Mach. Co. v. C. Aultman & Co.,4 which ruled that once a patent is granted, it “is not subject to be revoked or canceled by the president, or any other officer of the Government” because “[i]t has become the property of the patentee, and as such is entitled to the same legal protection as other property.”

    The supporters of the statute, on the other hand, including the PTO, take the position that a patent is a public right, whose bounds are dictated by Congress. Under this view, Congress has the power to authorize an administrative agency such as the PTO to review granted patents and revoke such rights if improperly granted.

    The supporters see the McCormick decision not as stating an overarching constitutional limit, but merely explaining the statute in effect at the time.

    To many observers, the certiorari grant comes as a surprise. The IPR proceeding itself is relatively new but carries on the paradigm of a challenger requesting that the PTO invalidate claims of an issued patent introduced in reexaminations, first authorized by Congress in 1980.

    The Federal Circuit upheld the constitutionality of reexaminations, and the Supreme Court declined to review the question. The Federal Circuit first upheld the constitutionality of IPR proceedings in MCM Portfolio LLC v. Hewlett-Packard Co.,5 The Supreme Court denied review in that case in 2016, as well as in two other cases also presenting constitutional challenges.

    What Now?

    The Supreme Court will hear Oil States Energy in the next term beginning October 2017. Despite the fact that the Court previously declined to address constitutional challenges to both reexaminations and IPRs, many suspect that the Court would not have accepted this case unless at least some justices viewed the IPR proceeding as unconstitutional.

    If the Supreme Court upholds the constitutionality of IPRs, there will be little to no change to the status quo. If, however, the Court rules IPRs unconstitutional, the impacts will be far reaching. First, IPRs themselves will come to a grinding halt. But if IPRs are unconstitutional, it should follow that PGRs, CBMs, and reexaminations are as well.

    What about interference proceedings (now replaced with derivation proceedings under the AIA), that can examine whether another inventor invented the subject matter of an issued patent? Will the ruling apply retroactively, such that patent claims previously ruled invalid in reexamination or IPRs are resurrected?

    Will such past rulings constitute takings that entitle patent owners to compensation from the government? As the case proceeds at the Supreme Court, briefing from the parties, the PTO, and others may shed some light on these issues. But substantial uncertainty will exist until the Court decides the case, and potentially even after.


    1 137 S.Ct. 1514 (2017).

    2 28 U.S.C. §1400(b).

    3 917 F. 2d 1574 (Fed. Cir. 1990).

    4 169 U.S. 606, 608-09 (1898).

    5 812 F.3d 1284 (Fed. Cir. 2015).

  • Wisconsin Redistricting Case Takes National Stage, Redraw on Hold

    Wisconsin will take center stage when the U.S. Supreme Court decides whether the Republican-controlled Wisconsin Legislature violated the U.S. Constitution when drawing and enacting new maps that altered voter district boundaries in 2011.

    Joe Forward

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    June 21, 2017 – The U.S. Supreme Court will review a decision that struck down voter redistricting maps that Wisconsin Republican lawmakers drew and enacted in 2011, following the 2010 census. Any decision could have far-reaching implications.

    On Monday, the nation’s high court announced that it will review the lower court’s decision in Gill v. Whitford, a challenge to redistricting (also known as reapportionment) on partisan gerrymandering grounds.

    Gerrymandering involves the manipulation of voting districts, in this case the alleged manipulation of voting districts to the advantage of Republicans in Wisconsin.

    The Wisconsin Legislature reapportioned the state legislative and congressional districts through 2011 Wisconsin Act 43 (state) and 2011 Wisconsin Act 44 (congressional) in August 2011. Redistricting maps, once established, control representation and elections for 10 years.

    A special three-judge panel for the U.S. District Court for the Western District of Wisconsin ruled (2-1) last year that the Republican-controlled legislature engaged in unconstitutional partisan gerrymandering when it enacted the redistricting maps.

    The panel ordered the legislature to redraw the maps by Nov. 1, 2017, to ensure they would be in place for November 2018 elections. The state, through Wisconsin Attorney General Brad Schimel, asked the Supreme Court to nix the November deadline pending the state’s appeal. Five justices agreed to let the maps stand until resolution.

    The Stay: An Indication?

    The case will not likely be resolved until the court’s next term, which starts in October. But at least one legal commentator suggested that the decision to keep the redistricting maps in place pending the appeal was an indication of something bigger.

    Joe Forwardorg jforward wisbar Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by org jforward wisbar email or by phone at (608) 250-6161.

    “[T]he fact that the state could muster the five votes needed for the stay bodes poorly for the [Democrat] challengers, because one factor that the justices had to consider in making their decision was whether the state is likely to succeed on the merits of its claim,” wrote Amy Howe for SCOTUS blog. “No matter how the Supreme Court ultimately rules, its decision will be significant.”

    Howe noted that if the U.S. Supreme Court rules that courts cannot review partisan gerrymandering claims, the political party in power at the time of each decennial census would be emboldened to draw maps that maximize the chances of maintaining control.

    “On the other hand, a ruling that courts can evaluate partisan gerrymandering claims could open the door to a flood of litigation challenging existing and future maps,” wrote Howe, noting the court could also sidestep the issue on jurisdictional grounds.

    “Today’s announcement also indicated that the justices would put off a decision on whether the court has jurisdiction to review the case until they hear the merits of the case,” she wrote. “Postponing the determination of whether the court has jurisdiction could prove to be just a formality, or it could provide a way for the justices to sidestep a ruling on the merits if the case proves too hard – only time will tell.”

    Noah Feldman, a constitutional law professor at Harvard Law School, has said this Wisconsin redistricting case “may become the most important judicial decision of our political era” and could be decided by the swing vote of Justice Anthony Kennedy, who was among the five justices that voted to keep the maps in place pending resolution.

    Gerrymandering and the U.S. Supreme Court

    The case was initiated by Wisconsin voters within the Democratic Party, including lead plaintiff William Whitford. Plaintiffs allege that Republican lawmakers engaged in unconstitutional partisan gerrymandering by intentionally altering voting districts in a way that ensured Republicans would be entrenched in power for years to come.

    Defendants are members of the Wisconsin Elections Commission, which administers Wisconsin election laws, including Commission Secretary Beverly Gill.

    Last year, a special 28 U.S.C. section 2284 judicial panel designated by Judge Diane Wood, chief judge of the U.S. Court of Appeals for the Seventh Circuit, ruled (2-1) that Republican-drawn maps constituted an unconstitutional partisan gerrymander, setting up a direct appeal to the U.S. Supreme Court under 28 U.S.C. section 1253.

    The majority – Seventh Circuit Appeals Court Judge Kenneth Ripple (author) and Judge Barbara Crabb of the U.S. District Court for the Western District of Wisconsin – decided the case despite a “significant analytical problem.”

    “Although the Supreme Court’s political gerrymandering cases establish that ‘an excessive injection of politics is unlawful’ … the Court has not come to rest on a single, judicially manageable or discernable test for determining when the line between ‘acceptable’ and ‘excessive’ has been crossed,” Judge Ripple noted.

    The U.S. Supreme Court has ruled that the Equal Protection Clause guarantees the opportunity for equal participation by all voters in the election of state legislators.

    “Diluting the weight of votes because of place of residence impairs basic constitutional rights under the Fourteenth Amendment just as much as invidious discriminations based upon factors such as race or economic status,” wrote Chief Justice Earl Warren in Reynolds v. Simms, 377 U.S. 533 (1964). Only one justice dissented in that case.

    One of the first partisan gerrymandering cases was Davis v. Bandemer, 478 U.S. 109 (1986), where Indiana Democrats challenged redistricting maps that Republicans drew in 1981. Importantly, a six-justice majority concluded that partisan gerrymandering claims are justiciable – that discernable and manageable standards could be applied.

    But they did not reach a consensus on the standard, leaving lower courts with little guidance on resolving partisan gerrymandering cases.

    Four justices ruled that the Indiana Democrats’ claims failed because, although there was sufficient evidence that Republican lawmakers intended to discriminate against Democratic voters, plaintiffs failed to prove discriminatory effect.

    The plaintiff-Democratic voters had relied on the results of the 1982 elections, where Indiana Democrats earned 52 percent of the statewide vote but secured only 43 seats. Indiana Republicans earned only 48 percent of the votes but took 57 seats.

    Four justices found that the Indiana Democrats’ partisan gerrymandering claim could not be supported with evidence from a single election.

    “[A] finding of unconstitutionality must be supported by evidence of continued frustration of the will of a majority of the voters or effective denial to a minority of voters of a fair chance to influence the political process,” Justice Byron White wrote.

    Two justices concluded that Republicans violated the Equal Protection Clause with its 1981 redistricting plan, identifying a number of factors courts should use to review partisan gerrymandering claims. But other justices disagreed with that approach.

    Justice Sandra Day O’Conner led the dissent’s charge that partisan gerrymandering claims of major political parties, unlike racial gerrymandering claims, are nonjusticiable political questions because “judicially manageable standards” cannot be applied.

    Decision Might Come Down to Justice Kennedy

    The U.S. Supreme Court revisited Bandemer in Vieth v. Jubelirer, 541 U.S. 267 (2004), where Democratic voters in Pennsylvania challenged Republican-drawn districts.

    Again, the issue of justiciability arose. Four justices concluded that political gerrymandering cases are nonjusticiable because “no judicially discernable and manageable standards for adjudicating such claims have emerged” since Bandemer.

    The votes of five justices kept the gates open on partisan gerrymandering claims. Justice Kennedy, largely viewed as the swing vote in Gill v. Whitford, noted that “great caution is necessary when approaching this subject,” which involves court intervention into the American political process, but said “I would not foreclose all possibility of judicial relief if some limited and precise rationale were found to correct an established violation of the Constitution in some redistricting cases.”

    Now, the defendants are asking again: Are partisan gerrymandering claims justiciable? The ultimate decision may come down to whether Justice Kennedy believes that the Republicans intended to discriminate against certain voters in drawing the maps, the maps had that discriminatory effect, and plaintiffs present a “limited and precise rationale” to correct a constitutional violation that Justice Kennedy can embrace.

    Democrat-plaintiffs inWhitford offered a “judicially manageable and discernable test” for unconstitutional partisan gerrymandering, one the district court panel’s majority applied as corroborating evidence of the redistricting plan’s discriminatory effect on Democratic voters.

    Under the test, challengers must prove intent to gerrymander for partisan advantage, as well as partisan effect, through a new measure called the “efficiency gap.”

    The efficiency gap measures the impacts of gerrymandering tools referred to as “packing” and “cracking” – in this case, packing Democrats into limited districts or scattering them (cracking) them across districts to dilute the strength of their vote.

    Professors at the University of Chicago developed the efficiency gap test, which would measure “wasted votes” – surplus votes for a winning party in packed districts and lost votes in cracked districts, where the party has no chance of winning.

    The plaintiffs asserted that a redistricting map that results in an efficiency gap of seven percent or higher should be deemed unconstitutional, so long as the partisan advantage was intended, and defendants cannot show the plan “is the necessary result of a legitimate state policy, or inevitable given the state’s underlying geography.”

    Howe noted that the state is “playing for all the marbles” on the justiciability issue.

    But justiciability is not the only issue. Even if the Democrat plaintiffs overcome justiciability, they still must contend with the state’s argument that, under Vieth, a party cannot make a partisan gerrymandering claim on a statewide basis, but must do so county-by-county, and that no partisan gerrymandering claim can be upheld if the redistricting party follows traditional redistricting principles.

    Wisconsin argues that it followed traditional principles in drawing the maps, and the maps merely reflect Wisconsin’s political geography, where many of the state’s Democrats reside in the urban centers of Milwaukee and Madison.

    What’s Next?

    Howe said the court will likely hear the case in November or December, with a decision to come in 2018, less than two years from the next decennial census in 2020.

    The decision will likely impact how Wisconsin and other state legislatures draw new maps in the future, and will directly impact whether current Wisconsin maps must be redrawn.

    Any ordered redraw could impact the 2018 (midterm elections), 2019, and 2020 elections (presidential election year). The Wisconsin Legislature will likely enact new redistricting maps in 2021, after the 2020 census.

  • Defendant Entitled to Self-defense Instruction after Standoff with DNR Wardens

    Deborah Spanic

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    Hunter with Rifle

    June 20, 2017 – As a result of a tense standoff with DNA wardens on his property, a Lafayette County man was convicted by a jury for resisting a law enforcement officer and intentionally pointing a firearm at an officer.

    Recently, in State v. Stietz, 2017 WI 58 (June 13, 2017), the Wisconsin Supreme Court reversed (4-2) and remanded for a new trial because it concluded the circuit court erred in not allowing a jury instruction on self-defense.

    The Confrontation

    Robert Stietz, a 64-year-old farmer in Lafayette County, owns property where he pastured cows, hunted, and gathered morel mushrooms. Over the years, he has encountered problems with trespassers hunting illegally and vandalizing his property.

    In November 2012, on the last day of gun deer season, Stietz was patrolling his property for trespassers and walking his fence line to ensure there were no holes.

    He drove and parked his wife’s vehicle in a field near the gate to his land. He carried his rifle in a safe position with the safety on and kept a handgun in his pocket. He wore a camouflage coat and hat, and did not wear any blaze orange as most hunters would.

    Two wardens with the Wisconsin Department of Natural Resources (DNR) were patrolling that afternoon, looking for hunters who were trying to get a deer after gun deer season ended at 4:45 p.m.

    About 10 minutes after gun season ended, the wardens noticed Stietz’s car parked in a field along the fence line, a quarter mile from the highway. Peering into the vehicle they learned it was registered to Stietz, and they saw an empty gun case, scent-killer spray, and a camouflaged tree seat.

    Concluding that the owner of the sedan was hunting after deer season ended, the wardens decided to look around. They wore their DNR uniforms, blaze-orange, department-issued jackets that had the DNR insignia on the sleeve and hats with the DNR insignia. Neither had a rifle, but both carried a handgun and a long flashlight.

    The wardens walked the fence line and through the partially-open cattle gate and onto Stietz’s property. Stietz testified that he saw blaze orange in the woods. He headed toward the cattle gate to identify the figures. Both the wardens and Stietz testified that it was almost completely dark when the three men crossed paths.

    Deborah SpanicDeborah Spanic, Marquette 2004, is a guest writer for the State Bar of Wisconsin. She can be reached by email.

    Stietz testified that he did not see the DNR insignia or badges as the men approached, and that in his mind, the blaze-orange signified hunters. In addition, Stietz testified that neither man clearly identified himself as a game warden as they approached him, leading him to suspect they were two trespassers hunting illegally on his land.

    After the wardens asked Stietz if he had seen any deer, they then asked if his rifle was loaded. He said yes. One warden asked twice for the rifle and Stietz said no both times. Stietz testified that at this time he feared for his life. The warden then grabbed Stietz by the front of his jacket while reaching for the rifle.

    The men grappled for the rifle, with the warden eventually obtaining it then casting it aside. Stietz then testified he saw the other warden fumbling to pull a handgun from his hip holster, then the first warden drew his handgun and pointed it at Stietz.

    Stietz then reached for his own handgun, stating to the two men that he had a right to protect himself. While continuing to point his gun at Stietz with one hand, the warden called Lafayette County dispatch for assistance. Stietz said he was relieved when the call was made, and only then started to realize that the two men were wardens.

    Stietz continued to point his handgun at the wardens because he said he felt unsafe, even after realizing the two men were wardens. After the deputy sheriffs arrived, there was still some time before Stietz would drop his gun. He stated that after the deputies assured him he would not be "gang tackled" he finally lowered his gun, unloaded it, and dropped the gun to the ground. He was then arrested.


    The issue in this case was whether the circuit court, and the court of appeals in affirming the circuit court, erred in refusing to instruct the jury on self-defense, and if there was error, whether that error was harmless.

    Justice Shirley Abrahamson noted in the opinion that a jury must be instructed on self-defense when the jury could find that “a prudent person in the position of the defendant under the circumstances existing at the time of the incident could believe that he was exercising the privilege of self-defense.”

    The evidentiary bar to be entitled to the self-defense jury instruction is low, and “evidence satisfies the ‘some evidence’ quantum of evidence even if it is ‘weak, insufficient, inconsistent or of doubtful credibility.'”

    When determining the role of the court in the decision, Justice Abrahamson noted that it is crucial that “a court is not to weigh the evidence,” and that “the question of reasonableness of a person’s actions and beliefs, when a claim of self-defense is asserted, is a question peculiarly within the province of the jury.”

    In this case, the majority concluded that, “the evidence that the defendant was in fear for his life and believed he was exercising the threat of reasonable force went beyond the minimal quantum of ‘some evidence’ necessary to establish the defendant’s right to a jury instruction on self-defense,” and as a result the circuit court erred in not allowing the jury instruction.

    The second prong the court then considers is whether the error affected the defendant’s "substantial rights," in accordance with Wisconsin’s harmless error rule in Wis. Stat. § 805.18(2). A defendant’s substantial rights remain unaffected if it is clear beyond a reasonable doubt that a rational jury would have come to the same conclusion absent the error.

    “The jury’s acquittal of the defendant on four of the six charges (including the most serious felony count) in part depended on the defendant’s testimony that at times conflicted with that of the wardens,” Justice Abrahamson noted.

    “The acquittals suggest that the jury believed all or some of the defendant’s testimony and, if given the self-defense instruction, might have acquitted the defendant on one or both of the two charges upon which they convicted the defendant.”

    As a result, the majority found that the circuit court’s error was not harmless, reversed the decision of the court of appeals, and remanded the case for a new trial.


    In addition to self-defense, Stietz also wanted the jury to receive instruction on the law of trespass, which was also denied by the circuit court.

    Justice Rebecca Bradley drafted a concurring opinion on this issue, joined by Chief Justice Patience Roggensack and Justice Daniel Kelly.

    Stietz wanted to tell the jurors he believed the two men were trespassers, but the circuit court barred this testimony, which, Justice R. Bradley noted, “prevented Stietz from fully presenting his defense.”

    In addition, Stietz’s attorney also sought to argue the wardens were in fact trespassers, and requested a trespass jury instruction, but the circuit court refused both requests.

    Wisconsin’s trespass statute prohibits any person from entering the land of another without the express or implied consent of the owner or occupant.

    In addition, section 23.58(1) authorizes DNR wardens to conduct a Terry stop, whereby an enforcing officer, having identified him- or herself as such, may stop a person “in a public place” for a reasonable period of time when the officer reasonably suspects that such person is committing, is about to commit, or has committed a violation of any applicable laws or rules.

    Justice R. Bradley noted that “[t]he wardens here were not in a public place, and even if Terry permitted investigatory stops on private property, the wardens did not have reasonable suspicion that Stietz was breaking the law when they drove onto private property to investigate.”

    “A car legally parked on private property does not, alone, create a reasonable suspicion of a hunting violation. A mere ‘hunch’ that the car means someone is hunting illegally is also insufficient,” R. Bradley wrote.

    The state asserted that the ‘open fields’ doctrine “justified the wardens’ intrusion on private property, reasoning that the doctrine made Stietz’s secluded, remote land a ‘public place’ on which the wardens were privileged to traverse. The State is wrong,” Justice R. Bradley wrote.

    “The open fields doctrine does not sanction the seizure of a person, nor does it create the requisite constitutional basis for seizing a person acting lawfully simply because the person is standing in an open field,” Bradley stated.

    “The State’s bald assertion … that ‘wardens do not need reasonable suspicion to believe that a crime has been committed before they enter private land’ is erroneous,” R. Bradley continued. “The reasonable suspicion standard applies to public places, not an individual’s remote, secluded, fenced, and posted private land.”

    Finally, Justice R. Bradley noted: “It appears the circuit court’s reasoning for refusing to instruct the jury on trespass arose from the court’s mistaken belief that the wardens had the authority to be on the private land and therefore could not be trespassers. The circuit court erred.”


    Justice Annette Ziegler dissented, joined by Justice Michael Gableman. Ziegler noted arguments “that Stietz is not to blame for the escalation of his interaction with the wardens into an armed standoff … but a jury … concluded that … Stietz’s subsequent decision to hold two wardens at gunpoint – despite Stietz’s own admission that he knew the wardens were law enforcement officers by that time – was a bridge too far.”

    “This is not a self-defense case,” Ziegler noted. “The jury’s verdict demonstrates that it found his reaction to law enforcement somewhat excusable with respect to the initial contact. The jury, however, found that the continued exhibition of force was not.”

    Concluding the circuit court did not err in withholding a self-defense instruction, Ziegler stated that “Stietz had no independent legal right to forcibly resist the wardens simply because he thought the wardens lacked the legal authority to seize or disarm him.”

    In addition, “if Stietz thought that law enforcement was in error, his recourse was the judicial system, not physical assault,” Justice Ziegler concluded.

    Even if the court erred, the dissenters found the error was harmless, because by reviewing the counts the jury acquitted Stietz of and the counts he was convicted of, the jury would have reasonably come to the same conclusion.

    “The jury was unwilling to assign guilt to Stietz regarding the initial struggle over Stietz’s rifle, but concluded that Stietz was guilty with regard to the prolonged standoff.”