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  • December 19, 2018

    Can This Year’s Wisconsin Supreme Court Jollify Scrooge?

    Amid parties and presents, how is our profession faring at the end of this year? Kate Knowlton takes a Dickensian visit upon some 2018 cases that remind lawyers their work is vital to the justice system, culture, and society. “These ghosts of our legal past and present point to a less frightening future,” she writes.

    Kathryn L. Knowlton

    I told my colleagues on the Communications Committee for our section that I wanted to do something festive, holiday-ish and (dare I say) inspiring/reassuring for the December blog. Many problems with that actually, the first and most obvious being that I have never done a blog before (gasp).

    Kate Knowlton Kate Knowlton, Marquette 2000, is owner and managing attorney of Knowlton Law Group, LLC in Wauwatosa. Her primary areas of practice are family, elder, and employment law, with special emphasis in survivor advocacy and representation, and she is occasionally haunted by the ghosts of her English-teaching past.

    I am middle age (proudly, thank you very much) with a healthy appreciation and relatively minor curiosity about technology, as well as a very established self-consciousness which (happily) keeps me OFF social media. Yes, I accept this disastrous taboo, which might not keep me in business into the next decade – but as I am only talking about this particular December right now, back off.

    The second problem being my rather dour and cynical take on our chosen profession (Scrooge-ish even?) at the present moment, thus, even if I could get the format as “blog,” I might indeed miss the festive and inspirational objective.

    However, as an English major, a serious advocate of searching for lessons in literary and life experiences, as well as a Marquette-trained legal analysist, I seem to present in myself, the perfect candidate in need of professional and seasonal cheering. A challenge then, as it were – worthy of Dickens himself.

    Stave One: The Beginning

    Where to start. The usual? Perhaps a review of the highlights and accomplishments of the chosen topic: reasons to be glad (proud even) to be a lawyer.

    And nothing jumps out at me immediately (thanks high profile and usually political negatives that we need not examine here, as that is too frightening even for fans of “true” ghost stories).

    Stave Two: The Past

    In the blissful naiveté of my past, my impression was that there was properly-assigned merit in seeking strong, analytically-driven wisdom and advice from a lawyer. Lawyers were problem-solvers, scholars who protected and reinforced the social and legal construct that invented this whole country. They were respected as necessary to maintain order because they crafted, interpreted, and clarified the law.

    Ok. That seems positive, and justified, and frankly, pretty dang important. Maybe we should just hold on to that “good old” rose-colored ghost of our professional past. Sigh, but relentlessly, time marches on.

    Stave Three: The Present

    To our lessons of the present, in 2018? What have lawyers done in Wisconsin?

    I sought the easy way out: the internet (caveat: already admitted my relatively limited tech status, so continue with all required disclosure to check and correct my work). 

    Thus, I present this completely abbreviated and cherry-picked summary of 2018 Wisconsin Supreme Court cases, which could only happen because of Wisconsin lawyers:

    Professors Tout the ‘American Way’
    A university dispute resolution process cannot limit a professor’s access to state courts, nor limit a contracted guarantee of academic freedom (McAdams v. Marquette University, July 6, 2018).

    You Can Put a Price on “Whole”
    Ferdon ex rel (providing arguments to overcome the statutory “cap” on noneconomic damages in medical malpractice judgments) is overruled, and the $750,000 cap is indeed constitutional, because the Ferdon decision “erroneously invaded the province of the legislature and applied an erroneous standard of review.” (Mayo v. Wisconsin Injured Patients & Families Compensation Fund, June 27, 2018).

    RIP Joint Ownership
    Wis. Stat. sections 157.067(2) and 445.12(6) (the anti-combination laws), which prohibit the joint ownership or operation of a cemetery and a funeral home, do not violate the equal protection or due process clauses of the Wisconsin and U.S. Constitutions (Porter v. State, June 27, 2018).

    You Might Work for the Government, but You Still Have Rights
    Government agencies and heads thereof, may select their own counsel and are not required to accept the Wisconsin Department of Justice as their representation (Koschkee v. Evers, June 27, 2018).

    It Matters What You Meant
    Proof of discriminatory intent is required in conjunction with the Labor and Industry Review Commission’s version of the “inference method” to find a violation of the Wisconsin Fair Employment Act (Wisconsin Bell, Inc. v. Labor & Industry Review Commission, June 26, 2018).

    The Boss is the Boss
    Employers have autonomy to even devise their own policies that differ from the policy set forth in the statute, and termination for the violation of the employer’s absenteeism policy will result in disqualification from receiving unemployment compensation benefits, even if the employer’s absenteeism policy is more restrictive than the policy set forth in Wis. Stat. section 108.04(5)(e). (Wisconsin Department of Workforce Development v. Wisconsin Labor & Industry Review Commission, June 26, 2018).

    Billboards and Rights
    Billboards can be two-faced (hee hee), but don’t have enforceable property rights (Adams Outdoor Advertising Limited Partnership v. City of Madison, June 19, 2018).

    Judges Are People, Too, Entitled to Their Day in Court, and Accountable for Their Actions
    The Wisconsin Supreme Court ordered that a circuit court commissioner be suspended without compensation and prohibited from exercising any of the powers or duties for a period of 15 days, due to the commissioner’s judicial misconduct. (Wisconsin Judicial Commission v. Honorable Frank M. Calvert, June 15, 2018).

    Referee and Resource
    Courts can be citizens’ redress as power-players and formidable change-makers (kind of and sometimes), because certiorari review by a court may be the proper mechanism to test the validity of a legislative determination when tax incremental district moneys were implicated in a (popular/not popular) city redevelopment plan (Voters with Facts v. City of Eau Claire, June 6, 2018).

    If You Don’t Build It, They Might Still Come
    Building permit verbiage should be deliberate and comprehensive, as building permit rules can extend to land identified in a building permit application as part of a project though no actual “building” (construction) is planned (Golden Sands Dairy LLC v. Town of Saratoga, June 5, 2018).

    You Can’t Get Drunk Off Wine (?) So Contract Freely 
    The operative definition of “intoxicating liquor” for purposes of Wis. Stat. chapter 135 explicitly excludes wine, and therefore, a wine grantor-dealer relationship is not included within the definition of a dealership in Wis. Stat. section 135.02(3)(b). (Winebow, Inc. v. Capitol-Husting Co., Inc., June 5, 2018).

    Also Consider

    • If your employee intentionally punches someone in the face, make sure you were negligent in your supervision of said employee if you want insurance coverage for the same (Talley v. Mustafa, May 11, 2018).

    • Don’t mess … the Wisconsin DNR can (and will) tell you where to go (well, venue-wise at the very least). (State ex rel. Department of Natural Resources v. Wisconsin Court of Appeals, District IV, April 3, 2018).

    • Labor unions need to work together and act timely to maintain certification and self-determination (Wisconsin Ass’n of State Prosecutors v. Wisconsin Employment Relations Commission, Feb. 28, 2018);

    • Public records can be weaponized, and voters must be protected from intimidation – wait, what? (Madison Teachers, Inc. v. Scott, Feb. 6, 2018); and

    • The Fourth Amendment is a real thing, so probably we should all brush up (State v. Faith N. Reed, Dec. 7, 2018).

    Staves Four and Five: Epiphany on the Yet to Come

    So, in the most keenly artistic way, these cases do remind me that the basics – literally, the historic foundational principles of this country and state that protect people, property, ideas, and even hopes – are only articulated, defined, safeguarded, and upheld because of practicing lawyers.

    That’s something.

    And it seems to me with these present examples, regardless of agreement with the holdings, as long as the lawyers remain independent and fierce in their ethical pursuit of good faith and zealous advocacy for their clients’ rights, the ghost of Christmas future isn’t so scary.


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    Solo/Small Firm & General Practice Blog is published by the Solo/Small Firm & General Practice Section and the State Bar of Wisconsin; blog posts are written by section members. To contribute to this blog, contact Nancy Trueblood and review Author Submission Guidelines. Learn more about the Solo/Small Firm & General Practice Section or become a member.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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