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VOLUME29 | NUMBER12

DECEMBER 2015

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CHANGES
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(ERRATIC)
DRIVING
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THE PUSH IS ON
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INSIDE:

Disciplinary Actions

Bench Blog

Case Digests

Practice Management

Whos Doing What

PA G E 10

PA G E 1 2

PA G E 2 2

PA G E 4 0

PA G E 4 4

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December 2015 Volume 29, No. 12

CONTENTS
10 Disciplinary Actions

STAFF BY PHOTO KEVIN HARNACK

12 Bench Blog

Choice of wrong legal route wastes opportunity
14 Commentary
In race to stand out in social media, the first can
end up last
With pay progression, prosecutors and
defenders should come before judges
36 Verdicts & Settlements

18

4 4 People and Places


Whos Doing What

46 Closing Arguments

Were Republican lawmakers right to dismantle
the GAB?

STICKING POINT
Will lawmakers find support to make first drunken driving offenses criminal?

STAFF PHOTO BY KEVIN HARNACK

ON COVER: Glendale criminal defense attorney Andrew


Mishlove says Wisconsin wont be making first-time
drunken driving offenses a crime anytime soon.

43

Starting July 1, courts will be able to


electronically transmit appeals records

Lawyers ways of coping with stress can


lead to even more stress

ELECTRONIC FILING COMING SOON

ANXIOUS TO SUCCEED

CHANGES ARE COMING TO THE


WISCONSIN LAW JOURNAL! CHECK
PAGES 24 & 25 FOR MORE INFORMATION!

WHATS HOT ON wislawjournal.com


Wisconsin Law Journal is live 24/7 at wislawjournal.com. Here are the stories and special
sections getting the most attention from readers in the past month.

Should defendants be served


via social media?

TOP FIVE MOST READ


1. Commentary: Laws vary on whether recording is allowed

Yes

2. Law Journals Unsung Heroes event set for Dec. 3

45%

3. States high court disciplines suspended attorney


4. Crime and punishment: Sentencing in financial fraud cases
No

55%

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5. On the Defensive: She was just 17 and shouldnt be tried as an


adult
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News & Views

Electronic filing
arrives in Wisconsin
Story on page 8
Starting July 1, courts
around the state will be
able to electronically
transmit records related to
cases that are on appeal.
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DECEMBER 2015 WISCONSIN LAW JOURNAL

News & Views

E-CHANGE
Court gives go signal for electronic transmission of appeals
Erika Strebel
erika.strebel@wislawjournal.com

Starting July 1, courts around the state


will be able to electronically transmit records
related to cases that are on appeal.
Wisconsin Supreme Court justices
unanimously voted Nov. 16 to approve a
petition calling for the change.
The new policy will not require trial
courts to use electronic means to send
records on appeal; the courts will instead
be merely allowed to use e-filing if they
choose to.
The petition calling for the change
was filed by Diane Fremgen, clerk of the
Supreme Court and Court of Appeals.
The justices recent approval means
the Consolidated Court Automation
Programs will most likely work with
various counties to test out the new
policy starting in early 2016.
Under the new rules, documents in the
record will still be submitted in paper form
but will then be scanned into computers
by trial-court clerks, who will then be
under an obligation to destroy the paper
versions after 48 hours. Judges and attorneys will retain their current option to
print out parts of the record.
Jim Smith, deputy clerk of circuit court
for Milwaukee County, said he and his
staff are looking forward to the change.
The current process is pretty oldfashioned, he said.
Milwaukee County allows some cases
to be filed electronically. But when there is
an appeal, every page must be printed out
and paginated by hand.
Wed rather do the work to scan a case
and submit it electronically, he said.
The new rule also means trial courts
no longer have to pay postage to send
records on appeal to the Supreme Court
clerk. The appeals court, for its part, will

not have to pay postage to send the records


between its district offices and the Supreme
Court clerks office.
Smith said that in many cases, postage is
charged to appellants at the trial court level.
The change will help the courts function more
efficiently because staff members outside of

the civil division often deal with appeals, in


addition to their other work.
The new rule is also expected to help
courts reduce storage costs, making it
acceptable for courts to keep an electronic
e-filing, continued on page 9

Changes on the horizon


The justices will be discussing
and hearing testimony on more rules
changes in the coming months. Those
include two petitions related to a rule
that lets circuit courts transfer cases to
tribal courts.
The rule, contained in state statute
801.54, was passed six years ago. It
has since been modified to let tribes
hear child support cases sent to them
from state courts.
Six tribes in Wisconsin receive
federal money to operate child
support programs. More than 2,000
of those cases have been transferred
to various tribes since July 1, 2009,
when the Supreme Court approved an
amendment to the rule allowing child
support cases to be moved to the
tribal courts.
The justices held a public hearing
Nov. 10 on the petition to review the
rule and a separate petition to repeal
the rule. More than 17 attorneys,
Oneida tribe members and other
professionals testified. Because the
hearing ended up going all day,
the justices were unable to discuss
the petitions in open conference
afterward, as scheduled.
As of Nov. 20, the justices had not
decided when they would discuss the

DECEMBER 2015 WISCONSIN LAW JOURNAL

petition but planned to later announce


their intentions, according to Supreme
Court Commissioner Julie Rich.
Other petitions are waiting for
preliminary action from the justices.
Two petitions were filed in October:
The State Bars petition for pro
bono legal work to be counted as
continuing legal education credit
and the Wisconsin Access to Justice
Commissions petition to use 50
percent of unclaimed class-action
settlements to pay for civil legal aid
organizations throughout the state.
Also, two Kenosha attorneys
petitioned the court in September to
consider a change to the courts rules
on what information attorneys can
share about their clients. The State Bars
past president, Bob Gagan, had also
petitioned the court in June to amend
the Supreme Court Rules of Professional
Conduct to include changes made to the
American Bar Associations Model Rules
of Professional Conduct.
Rich said there will most likely
be two public hearings on Gagans
petition. The second will include
the petition from the two Kenosha
attorneys. The dates of the hearings
had not been decided by Nov. 20.
- Erika Strebel

www.wislawjournal.com

News & Views


e-filing, continued from page 8
version of records that are on appeal.
One of the other advantages to the electronic transmission of records on appeal will
be that more than one person will be able to
access them at a time. The public will also
be able to see records using public-access
stations in the court where a case originated,
but will still not be able to see parts that have
been placed under seal.
Fremgen had originally petitioned for the
new rule to take effect on Jan. 1, but the date
was moved back after a conference on the
then-proposed rule was cancelled so that the
newly appointed Justice Rebecca Bradley,
who had been sworn in the day before,
could become familiar with the petitions the
justices were considering. Gov. Scott Walker
appointed Bradley on Oct. 9 to take a spot on
the bench that was left vacant by the sudden
death of Justice Patrick Crooks.

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News & Views

DISCIPLINARY ACTIONS
The latest complaints filed and discipline ordered against attorneys licensed to practice in state
Stories by Erika Strebel

Attorney faces discipline over


misconduct in Minn.

A Minnesota attorney is facing discipline in


Wisconsin after his Minnesota law license was
suspended.
The Office of Lawyer Regulation filed a
complaint Nov. 13, asking that the Wisconsin
Supreme Court discipline Scott Selmer, who
practices in Minnesota, for failing to notify the
OLR that the Minnesota Supreme Court had
suspended his license in July. The OLR is also
asking the court to impose reciprocal discipline
for the conduct that resulted in his Minnesota
suspension.
Supreme Court Rules of Professional Conduct require that attorneys report professional
discipline in other states within 20 days of the
disciplines effective date.
His Minnesota license was suspended for
12 months for misconduct he committed while
handling suits and countersuits related to his
time at the helm of the St. Paul Urban League,
from 2008 to 2011. According to the Minnesota
Supreme Court, he failed to follow court orders,
refused to comply with discovery requests and
engaged in harassing and frivolous litigation.
Selmer, who practices in Minneapolis, earned
his degree from the University of Wisconsin law
School in 1975, and was admitted to practice
law in Wisconsin in 1978. His license is now
suspended in Wisconsin for failing to pay bar
dues and failing to report completing legaleducation requirements.
Selmer has had an extensive history of
professional discipline in Wisconsin. He was
publicly reprimanded in 1990 and 2009 for
conduct such as failing to provide a client with
an accounting of the money he received on her
behalf and then suing her for an unreasonable
fee. Selmer was privately reprimanded in 1990
for practicing while his license was suspended
for failing to meet continuing-education requirements. In 1999, his license was suspended for
one year for frivolous and harassing conduct
that involved countersuing his creditors for racial discrimination and offering false evidence.
Selmer has also been disciplined in Minne-

10

sota, where he was admitted to the bar in 1984.


He was publicly reprimanded in 1995 and 2008
for failing to pay a judgment against himself,
failing to file tax returns and failing to properly
maintain trust accounts and other records.
In 1995, the Minnesota Supreme Court affirmed an admonition for charging a client for
the cost of copying a file before returning that
file to a client after Selmer had been discharged
from representing that client. In 1997, Selmer
was suspended for harassing and frivolous
litigation and making false statements in discovery requests from 1983 to 1995.
Selmer has said that his legal troubles have
forced him to retire from practicing law, that
he has been basically homeless for several
years and struggled to find a job, according to
Minnesota Lawyer, a sister publication of the
Wisconsin Law Journal.

Green Bay attorney faces


public reprimand

A Green Bay attorney faces a public reprimand following allegations that he mishandled
client fees.
An OLR complaint filed in November alleges
Alf Langan, who practices in Green bay, committed 11 counts of misconduct stemming from the
cases of six clients whose fees he is accused of
mishandling. The OLR alleges that Langan entered into advanced fee agreements with clients,
who then paid part or all of the fee. Langan is
suspected of then failing to provide clients with
an account of his fees at the end of his representation and, in a number of cases, taking months
to refund unearned fees to clients.
The OLR is asking the Wisconsin Supreme
Court to publicly reprimand Langan for the
alleged misconduct, according to the complaint.
Langan has been licensed to practice law in
Wisconsin since 1991. He graduated from Saint
Louis University School of Law in 1984, according to the State Bar. Langans license is in good
standing, according to both the OLR and the bar.
This was not Langans first encounter with
the OLR. He was publicly reprimanded in 2011
in two client matters.
DECEMBER 2015 WISCONSIN LAW JOURNAL

In a clients tax case, he was found to have


violated advertising rules, to have failed to act
with due diligence and to have not refunded the
unearned part of his fee. In the second case,
Langan failed to competently represent a client
in divorce and post-divorce matters, failed to
advise that client about a conflict of interest
related to fees and put his own interests above
his clients by having his client sign a release
concerning malpractice without advising the
client to get independent representation.

High court suspends Minn.


lawyers Wis. law license

The Wisconsin Supreme Court has suspended a Minnesota lawyers Wisconsin law license
for six months.
Wednesdays discipline stems from an OLR
complaint filed April 6 in Wisconsin, alleging
six counts of misconduct involving a settlement
Amoun Sayaovong failed to pay to three of his
clients and for practicing while his license was
administratively suspended in October 2013 for
failing to pay bar dues.
The complaint also asked the Supreme Court
to suspend his license for six months.
The justices agreed and also held Sayaovong
in default for failing to respond to the OLRs
complaint and for failure to appear at hearings
related to the complaint.
According to the State Bar and Wisconsin
Court System websites, Sayaovongs work address is in St. Paul, Minn. But according to an
Office of Lawyer Regulations complaint, the address does not exist and Sayaovong has listed
a Milwaukee address in some correspondence.
Sayaovong previously had a website and phone
number that place him in Milwaukee.
Sayaovong was publicly reprimanded in 2014
for mishandling immigration and Social Security
cases. He also has not paid mandatory bar dues
or fulfilled continuing legal education requirements, according to the State Bar website.
Sayaovong graduated from the University of
Michigan in 2006 and was admitted to practice
law in Wisconsin in 2007.

www.wislawjournal.com

News & Views

High court grants ex-teachers


request for license revocation

The Wisconsin Supreme Court has granted a license-revocation


request submitted by a man who was convicted of possessing child
pornography and also once worked as a high school teacher.
Michael Switalski earned his degree from the University of Wisconsin
Law School and was admitted to practice law in the state in 1988. His
license is inactive, according to the State Bar, and he is not currently
practicing law. He was also previously a teacher and coach at Newman
Catholic High School in Wausau.
In 2014, Switalski was accused of having nearly 100 photos and 12
DVDs containing sexually explicit images of boys. According to a criminal
complaint, Switalski was one of hundreds of customers who bought the
material from a Toronto company that was raided in 2012.
In March, Switalski pleaded guilty to 10 felony counts of possessing
child pornography, for which he is serving time in prison. In June, he was
sentenced to ten three-year prison terms, with each term followed by five
years of extended supervision.
Switalski filed his petition to the court in August, stating that he was
under investigation by the Office of Lawyer Regulation for possessing
child pornography and cannot successfully defend himself against the
misconduct alleged by the OLR. The OLR filed a recommendation that
Switalskis petition be granted.

Northern Wisconsin attorney


suspended for trust-account violations

The Wisconsin Supreme Court suspended a northern Wisconsin


attorneys license in October for using trust-account money to pay for
personal expenses.
The disciplinary action against Thomas Mulligan stemmed from an
Office of Lawyer Regulation complaint filed in December 2013. The
complaint alleged Mulligan used as much as $9,488 from his clients trust
accounts to pay for personal expenses between 2007 and 2011. It also
accused him of entering improper fee agreements with two clients when
he represented them in criminal and divorce cases.
The eight-count complaint also stated that Mulligan, through his attorney, admitted to the OLR that he had not kept individual client ledgers.
According to the decision, Mulligan contended that the ethical violations do not warrant restitution, suspension or full costs.
The OLR had asked the court to suspend Mulligans license for two years.
It did not ask the court to impose restitution because it could not calculate an
amount from the evidence it had collected, but a court-appointed referee suggested that Mulligan pay back $7,500 to a client for fees he did not earn.
However, the justices decided to suspend his license for 1-1/2 years,
ordered him to attend a trust-account seminar and, upon reinstatement,
submit to monitoring of his trust account.
The court did not order restitution, according to the per curiam decision, because it agreed with the OLR that there was not enough evidence
to ascertain the amount of restitution to be paid.
The court also ordered that Mulligan pay for the full costs of the disciplinary proceeding, which was $17,720.02.
Mulligan earned his degree from Indiana Universitys Robert H. McKinney
School of Law in 1972. He has been disciplined three times since being admitted to the Wisconsin State Bar in 1985. Mulligan practices and lives in Spooner.

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11

Commentary

COMMENTARY
BENCH BLOG

Choice of wrong legal route wastes opportunity


Couple challenges constitutionality of 2 statutes in adoption case

Judge Jean
DiMotto retired
in 2013 after
16 years on

The attorney for a same-sex couple recently


tried unsuccessfully to use an adoption action to
challenge the constitutionality of statutes related
to artificial insemination and to the presumption
of paternity stemming from marriage.
Susan R. and Christie L., both college
professors, have been in a relationship since
2010. In the fall of 2013, Ms. R. was artificially
inseminated with sperm from an anonymous
donor. She gave birth on June 7, 2014, and
married Ms. L. six days later.

Adoption action
Just before Thanksgiving 2014, the couples
attorney filed an adoption action. Ms. L.s adoption
County Circuit
of the child, however, was not the goal of the action.
bench and now
Rather, in their Joint Petition for Determination
serves as a
of Parentage, the couple sought an order: (1)
reserve judge.
declaring C.L. a legal parent of the child; (2)
She also is of
declaring C.L. and S.R. to be equal legal parents of
counsel with
the child; (3) declaring that the anonymous sperm
Nistler Law office
donor was not a legal parent of the child; and (4)
directing the Wisconsin Department of Health
SC. She can
Services, Vital Records Office, to identify C.L. and
be reached at
S.R. as the childs legal parents and to issue a birth
jeandimotto@
certificate listing both C.L. and S.R. as parents.
gmail.com.
As part of their petition, the couple challenged
the constitutionality of two statutes.
The first sec. 891.41, the presumption of
paternity stemming from the marriage of the parties provides that
a man is presumed to be the natural father of a child if he and the
childs natural mother were married after the child was born and had
a relationship when the child was conceived, and if no other man has
been adjudicated the father.
The second sec. 891.40, artificial insemination provides that
if a wife is artificially inseminated, her husband, rather than the sperm
donor, is the natural father.
the Milwaukee

12

Court hearing
Because it was an adoption action, only the couple and their attorney
appeared at the hearing on the petition before Winnebago County
Circuit Judge Karen Seifert.
Counsel argued that the two statutes in question needed to be
ungendered under sec. 990.001(2) (words relating to one gender
shall be applied to both genders). This would allow Ms. L. to be
declared the natural, legal parent of the child. Not to do so, she argued,
would violate Ms. L.s due process and equal protection rights as
established by recent federal cases allowing same-sex marriages.
Judge Seifert said the couple could continue with the adoption action.
But: The relief that youve requested in your petition are all basically
asking for a declaratory judgment. Seifert recommended that the
couple file a civil action seeking either declaratory judgment or a
paternity action.
Counsel agreed that her clients were actually not seeking adoption.
She argued that a paternity action or a family action would be just as
inappropriate as an adoption action; in the end, counsel said, her clients
simply chose the option that came without a filing fee.
Seifert denied the petition because the action was one for adoption.
Because the constitutionality of the two statutes was being challenged,
she again said the couple could bring an action for declaratory
judgment and serve notice on the attorney generals office.
Rather than file an action for declaratory judgment, the couple
appealed.
Court of Appeals
In the appeal In the Interest of P.L.L.-R. v. Circuit Court for
Winnebago County the couple put forward similar arguments,
including that the matter was controlled by Judge Barbara Crabbs
decision in Wolf v. Walker (as affirmed by the 7th Circuit Court of
Appeals) and the subsequent U.S. Supreme Court decision in Obergefell
v. Hodges. Moreover, she asserted that the current version of the two
statutes violated not only the constitutional rights of the same-sex
parent but also those of the child.
Judge Mark Gundrum, writing for the District 2 Court of Appeals,
noted that Judge Crabb had indicated a few months ago that Obergefell

DECEMBER 2015 WISCONSIN LAW JOURNAL

www.wislawjournal.com

Commentary

THINKSTOCK

did not answer questions about Wisconsins


presumption-of-paternity statute. Nor, for
that matter, did it answer questions about the
artificial-insemination statute.
The court agreed with the state that the
couples decision to file an adoption action
not only permitted them to avoid paying a
filing fee but also allowed them to advance
their claims unilaterally without any other
party having an opportunity to advocate an
alternative position.
Moreover, since the action was in
essence one for declaratory judgment,
the requirements of sec. 806.04 were
controlling. Subsection (11) specifically
states that if the constitutionality of a statute
is challenged, the attorney general must
receive notice of the proceeding and have an
opportunity to be heard.
The court ruled that failure to give notice
to the attorney general raised questions over
whether the circuit court was competent to
adjudicate the couples action. Competency is
the power of a court to exercise its subject
matter jurisdiction in a particular case.

Appealing the dismissal of the adoption action


instead of filing a civil action for declaratory
judgment was penny-wise and pound-foolish.
Therefore the court affirmed Judge Seifert,
ruling that she had appropriately dismissed
the petition.
Commentary
Apparently eight couples in four counties
have had such a petition granted, so there
was at least that rationale for the couples
attorney to file it in an adoption action.
But appealing the dismissal of the adoption
action instead of filing a civil action for
declaratory judgment was penny-wise and
pound-foolish. The couples investment of
time and emotion in their desired outcome
was for naught because the wrong legal route
to that outcome was chosen.
Counsel for the couple has been quoted
as saying that a technicality won over the

rights of a child and family. But the avenue


to relief in circuit court is paved by filing the
appropriate type of case.
The Court of Appeals decided that the
failure to provide notice to the attorney
general of a constitutional challenge deprived
the circuit court of competency to decide the
matter. The absence of judicial capacity to
rule is hardly a technicality.
Its all so unfortunate.
The constitutional challenges here are a
natural outgrowth of the decisions in Wolf
and Obergefell. It is appropriate for a circuit
court to consider them.
But that consideration has now been
delayed by at least a year, and the couple is
still without their desired relief.
A pity.

READ MORE ONLINE


Reserve Judge Jean DiMotto regularly provides insight on
recent court decisions for Wisconsin Law Journal.
View all of her columns at wislawjournal.com.

www.wislawjournal.com

DECEMBER 2015 WISCONSIN LAW JOURNAL

13

Commentary

ON ETHICS

Sometimes the first will be last and the last first

Nate Cade is a
solo attorney
who previously
served on and
chaired the State
Bars Ethics
Committee
and served
on the ABAs
Standing Ethics
Committee.
You can contact
him at nate@
cade-law.com

14

Although I have written before about


social media and ethics, a recent court
order has me thinking yet another
admonition is in order.
Lawyers are trained to be quick to
provide answers or information to
their clients. Speed creates value. And
thats what we want to do for clients,
because when they find themselves in
need of help, we hope that the value
we had previously created gets us that
first phone call.
If nothing else, it should help keep
us first in the minds of former clients
and make us stand out from the pack
for prospective clients. But, unfortunately, sometimes in the world of
social media as it is written in the
Bible the last shall be first, and the
first last.
A case in point a young partner in
the Chicago office of an Indiana-based
law firm found himself in hot water
recently over some of his tweets. His
transgression? He was live tweeting during a trial in the North District
of Illinois. Unfortunately, his short
messages were sent out during the
trial of a commodities trader who
stood accused of market manipulation (spoofing). The traders alleged
transgressions involved rapidly
placing orders and then subsequently
cancelling them, a maneuver the Feds
apparently dont like.
Yet, live tweeting does not sound
so bad, right? Where could the harm
possibly lie? Oh yeah, one thing I
forgot to mention U.S. District Court
Judge Harry Leinweber had issued an
order specifically forbidding the use of
phones in his courtroom.
Then again, it is somewhat understandable that a lawyer who was
apparently so giddy to watch this
trial might not have first thought to
log into PACER to pull that particular

THINKSTOCK

court order. Yet, even with granting


our young transgressor that benefit
of the doubt, how do we explain his
overlooking the four foot sign hung
outside the courtroom? Written in all
caps, it clearly proclaimed, Photographing, recording or broadcasting is
prohibited.
Before we rush to condemn him,
though, we should keep in mind that
its not as if this lawyer was tweeting
from a trial in which he or anyone
from his firm was directly involved as
an attorney of record. No, here he was
nothing more than a spectator.
Clearly, the subject matter of the

DECEMBER 2015 WISCONSIN LAW JOURNAL

trial interested him (at least I think


it did from what I can discern from
his online bio and some of his other
tweets from that day). So while the
trial was ongoing, he apparently
thought it a good idea to be the first to
broadcast reports on the proceedings.
The goal, no doubt, was to provide
something of value to his 224 Twitter
followers (yes, you read that number
correctly). And if that figure is any
sort of reliable indicator, he succeeded to an extent. As I write this article
two weeks after the fact, I see that the
Ethics, continued on page 15

www.wislawjournal.com

Commentary

Ethics, continued from page 14


number of his Twitter followers has doubled.
Unfortunately for this young partner, the
Chief Judge in the Northern District of Illinois
has now requested that he again be first the
first in line for an order to show why he should
not be sanctioned. Zoinks!
Clearly this was a screw-up. The natural
question then is: What lessons can be drawn
from this Twitter fiasco?
Well, obviously, one is that lawyers should
obey court orders at all times. For some
reason this partner thought he could get
some much needed street cred (seriously,
fewer than 225 followers?) from showing
that he was Johnny on the Spot and reporting
breaking news.
I mean, who could fail to feel the tension
that was no doubt present in the courtroom
after reading tweets such as: #hft in the

Clearly this was a screw-up.


The natural question then is:
What lessons can be drawn from this Twitter fiasco?
spotlight and We have been watching the
prosecution and the defense at the Cosica
#HFT spoofing trial?
A second obvious thing this smackdown
teaches us is to think before we act. One
thing we should all know by now is that our
ability to get a smart phone into a courtroom
does not in itself justify informing the world
of everything we witness. Along the same
lines, just because we might have thoughts
running through our heads, it does not
necessarily follow that it is wise to begin
broadcasting them.
Although having a quick answer or social
post could arguably create value for clients,

being the first to comment on something is


at the same time not always a sign of intelligence. Sometimes it could just make you the
first person to get in trouble, which could be
long-lasting, since posts on social media tend
to stay around forever.
Finally, its important to remember that if
you are going to persist in thinking that being
the first to broadcast information on social
media will help you create value and have your
clients, colleagues and the rest of the world
take you seriously, you ought to have more
than 225 Twitter followers. Seriously. A Twitter
account about Kim Kardashians shoes has
over 1,500 followers. Just saying.

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DECEMBER 2015 WISCONSIN LAW JOURNAL

15

Commentary
ON THE DEFENSIVE

With pay progression, prosecutors and defenders


should come before judges

Anthony Cotton
is a partner at
Kuchler & Cotton
SC, Waukesha.
He is the vice
president of
the Wisconsin
Association of
Criminal Defense
Lawyers and
served two terms
on the board
of the National
Association of
Criminal Defense
Lawyers.

16

Wisconsin Supreme
Court Chief Justice Pat
Roggensack promised,
in her State of the
Judiciary Address, that
she will fight for higher
judicial salaries when
the Legislature begins
work on the states
next budget.
Roggensack
emphasized that
judicial salaries should
reflect the important
role that their recipients
play in maintaining
constitutional liberties.
A Wisconsin
Supreme Court
justice currently earns
$147,403 a year. State
court judges are paid
$131,200. Justice Roggensack said
that she wants the judiciary to be the
best it can be. Few would doubt that
fair compensation raises the quality
of the candidate pool.
Justice Roggensack (and every
other judge in the state) would
obviously reap personal benefits from
a salary increase. But are they truly
the ones who are in need? What about
the far more pressing concern the
unconscionably low salaries paid to
prosecutors and public defenders?
Under the current system in
Wisconsin, prosecutors and public
defenders will see virtually no pay
progression throughout their career.
In practical terms, this means
that regardless of performance,
prosecutors and public defenders
will spend virtually their entire
careers making between $50,000
and $60,000. Take, for example, an
assistant district attorney in Milwaukee
who has worked in that office for
fourteen years. He or she now earns

THINKSTOCK

$58,079 a year, which amounts to


$8,000 more than a new graduate.
The same is true for a public
defender with the same amount of
experience.
The lack of pay progression
explains the high turnover rate within
the public defender and district
attorneys offices. Although the
work may be rewarding, it is nearly
impossible to retain high quality
lawyers when they have almost no
financial incentive to stay in these
positions.
Most prosecutors and public
defenders, finding they have no
good way to earn substantially more
money, end up looking for privatesector work after only a few years.
Among those who dont, many find
that the abysmal pay structure of
public work ends up forcing them to
moonlight as bartenders and servers.
The entire system suffers because
of this poorly developed pay
structure. For one, crime victims lose
experienced and competent attorneys

DECEMBER 2015 WISCONSIN LAW JOURNAL

who could effectively prosecute their


case. On the other side of that coin,
criminal defendants lose lawyers
who understand what motions to file,
what arguments to make and how to
try a case. From the perspective of
the judiciary, nothing is made more
efficiently when new graduates are
left to fight things out in court.
If Justice Roggensack is going to
advocate for anyone, it should be
for the staff public defenders and
prosecutors who have worked for
over a decade without any significant
pay increase. They should come first,
before anyone else in the criminal
justice system gets a raise.
Every single one of these
lawyers puts in more than 40 hours
a week. Most of them take work
home with them and spend their
weekends and evenings preparing
for trial. These lawyers should be
able to earn a decent living without
suffering perverse incentives that
encourage them to leave, rather
than keep their jobs.
www.wislawjournal.com

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Cover story
STAFF PHOTO BY KEVIN HARNACK

Attorney Andrew Mishlove says that when drunken


driving stakes are made higher for clients, lawyers tend
to respond by litigating more.

18

DECEMBER 2015 WISCONSIN LAW JOURNAL

www.wislawjournal.com

Cover story

STICKING POINT
Will lawmakers find support to make first
drunken driving offenses criminal?

We have such a lenient first-offense program. A system where there is no


negotiation or plea bargaining no options or incentive is a failure. I think we
need a dramatic increase in treatment options.
Andrew Mishlove, Defense Attorney

Erika Strebel
erika.strebel@dailyreporter.com

Despite plenty of compelling arguments for


making first-time drunken driving offenses
a crime, Wisconsin wont be moving in that
direction anytime soon, predicts defense attorney Andrew Mishlove.
The financial and bureaucratic impact is
so daunting it has never been given serious
consideration in my 35 years of doing this,
said Mishlove, whose office is in Glendale. It is
periodically proposed and never gets very far.
Rather than trying to impose criminal
penalties on those nabbed the first time for
drunken driving, lawmakers this year have
introduced bills specifically targeting repeat
offenders. Deterrence, they hope, will come
from higher fines, mandatory jail sentences
and similar measures.
We at least have to do everything we can
to keep them from getting behind the wheel
while drunk, said, state Rep. Jim Ott, R-Mequon, a lawmaker who frequently sponsors
legislation meant to fight drunken driving.

Doing what they can


About a dozen drunken driving-related bills
have been introduced this year, including bills
that would require the state Department of
Transportation to revoke the licenses of those
who have been caught driving drunk five
times or more.
Among the proposals is a package of OWI
bills that were introduced in October by Ott and
Sen. Alberta Darling, R-River Hills. In general,
the two lawmakers have proposed increasing
penalties and creating mandatory minimum
sentences for some drunken driving offenses.
Theres too much drunk driving Wisconsin, Ott said. There are too many injured,
too many killed and too many outrageous
things happening. Some people are arrested
for the 11th or 12th time driving drunk
wrong-way drivers. Thats the reason.
In comparison to other states, Wisconsin
is more lenient, Ott added, and one of the
ways to discourage drunk driving is to make
the penalties higher.

Lawyering up
Some question, though, whether heightened penalties are ever enough, on their own
at least, to prevent someone from getting
behind the wheel after having had too much
to drink. Skeptics say the real beneficiaries of
deterrence attempts are likely to be lawyers.
For defense attorneys in particular, higher
penalties generally mean more business.
Not one study of which I am aware has
ever shown that criminal sanctions decrease
the incidents, said attorney Chris Van
Wagner. Not one.
Mishlove said that when the stakes are
made higher for clients, lawyers tend to
respond by litigating even more.
Even a first offense can destroy a career,
he said. We have lots of good citizens who
have been good for decades who wind up
having their careers and families destroyed.
Van Wagner, a defense attorney in Madison, agreed, saying that mandatory minimum
sentences and higher penalties often do little
more than stiffen a clients resolve to fight.
Basically it doubles the amount of lawyers
Drunken driving , continued on page 20

www.wislawjournal.com

DECEMBER 2015 WISCONSIN LAW JOURNAL

19

Cover story

Drunken driving, continued from page 19


that get hired because people dont want to
have a record, he said.
At the same time, both Mishlove and
Van Wagner are quick to concede that state
lawmakers did manage in 2010 to pass an
effective deterrent when they required that
ignition-interlock devices be installed in the

vehicles of those who had been convicted


of drunken driving two or more times. The
devices prevent a vehicle from being started
if the driver, after breathing into a sensor, is
found to have an alcohol concentration above
a certain level.
As effective as such technology can be,
many say it does not get to the root of the
problem.

We at least have to do everything


we can to keep them from getting
behind the wheel while drunk.
Jim Ott
Republican state representative from Mequon
20

DECEMBER 2015 WISCONSIN LAW JOURNAL

STAFF PHOTO BY KEVIN HARNACK

Longtime state Rep. Jim Ott is a strong proponent of


tougher drunken driving laws. Most recently, Ott has
proposed increasing penalties and creating mandatory
minimum sentences for some offenses.

Elephant in the room


The most successful deterrents, Mishlove
said, often couple the threat of tougher
penalties with the opportunity to avoid harsh
punishment by taking various remedial steps.
First-time offenders, he said, should be given
a chance to opt out of jail time or fines if they
agree to go through treatment.
Most states, Mishlove said, provide that sort
of choice. Illinois, for example, has a system
that rarely if ever results in criminal convictions for first-time drunken driving offenses.
Defendants are instead allowed to avoid jail
time or fines by going into a court diversion
Drunken driving, continued on page 21

www.wislawjournal.com

Cover story
Drunken driving, continued from page 20
program, and most choose that option.
But its hard to make the carrots effective,
Mishlove said, unless there is a big stick
hanging overhead.
We have such a lenient first-offense program, Mishlove said. A system where there is
no negotiation or plea bargaining no options
or incentive is a failure. I think we need a
dramatic increase in treatment options.

www.wislawjournal.com

No will, no way
Berceau said her bill faces two hurdles. The
first, she said, is opposition from the powerful Tavern League of Wisconsin, which gives
campaign donations to lawmakers on both
sides of the political aisle. The second is the
tolerance that many lawmakers continue to
show toward first-time drunken drivers.
The perspective is the first time you (get
caught driving drunk) its a mistake, and you
shouldnt be punished and that youve probably learned your lesson, she said.
Mishlove said he thinks such proposals
fail because criminalizing first-time offenses
would necessitate an overhaul of Wisconsins
court system. As a result of such a change,

thousands of the sorts of cases now handled


by municipal courts would be shifted to
circuit courts, burdening prosecutors and
judges with more work.
Ott, drawing on his 14 years of experience
in the Assembly, has concluded that there
simply is a lack of political will. The opposition
has shown itself to be bipartisan and is strong
enough to prevent any attempt at criminalizing
first-time offenses from passing.
He noted that in the state Legislatures 20092010 session, when Democrats controlled both
houses, he worked with then-state Rep. Peggy
Krusick, D-Milwaukee, on a series of OWI bills,
including one that would have imposed criminal
penalties on anyone found guilty of drunken
driving for the first time. Support was lacking
then and Ott said he has found no reason to
believe it has increased since.
Rather than criminal penalties for all firsttime offenders, lawmakers had to settle for a
law making first-time drunken driving a misdemeanor only if a child is present in the vehicle.
Ott said that he thought anything broader
simply would not have gotten enough votes.
This is a problem, he said. It cuts
across political lines.

THINKSTOCK

Seeking safe passage


Ultimately, the biggest question for lawmakers is: What can they realistically hope to get
passed? Compared with proposals to place
tough penalties on first-time offenders, bills
such as those put forward by Ott are more likely
to make it out of committee and on to the floor
of one of the state Legislatures two chambers.
Ott, for instance, said he sees strong
chances of adoption for a bill that would
increase the penalties for third, fifth and sixth
drunken-driving offenses. Likewise for his
proposal to eliminate a rule stipulating that
an instance of drunken driving, in order to
be considered a subsequent offense, has to
occur within a certain number of years
usually five to 10 of a previous offense.
Tougher to pass, meanwhile, will be a bill
that would require seven years of imprisonment for those who kill someone while driving
drunk. As with so many of these proposals,
lawmakers seem likely to balk at the predicted
cost to the state of prosecuting those who,
threatened with heightened penalties, might
feel they have little choice but to fight in court.
Such considerations have been the chief
undoing of past attempts at making first-time
drunken driving offenses a crime, and could
easily be so again this year.
Gov. Scott Walker, when serving as a state
Assemblyman, joined former state Sen. Gary
Drzewiecki in 1997 to introduce a bill that
would have imposed criminal penalties on
first-time offenders.
The proposal didnt even make it to a committee vote.
A similar fate could be in store for a bill
introduced this year by state Rep. Terese Berceau, D-Madison, in September. The bill would
not only make a first instance of drunken
driving a misdemeanor but would also offer an
incentive to avoid repeat offenses. Drivers who
were convicted but then went on to have no
subsequent OWI-related offenses within five

years would be able get the original charges


reduced to a civil violation.
Berceau said the odds of the bill passing are
bleak, although its not for a lack of support
from at least some of the Republicans who
control the state Legislature. Ott, for one, has
signed on as a supporter, but said he too is not
optimistic about the proposals chances.
The bill had not been scheduled for a committee vote as of late November.

DECEMBER 2015 WISCONSIN LAW JOURNAL

21

CASE DIGESTS|Wisconsin Law Journal

PUBLISHED OPINIONS
The Wisconsin Law Journal publishes case digests of every U.S. Supreme Court,
Wisconsin Supreme Court and state Court of Appeals opinion, as well as those cases
decided by the 7th Circuit that apply either Wisconsin or federal law.
In print, we offer shortened digests of the past months notable opinions from those
courts. Split into civil and criminal cases and organized by
practice area, this roundup of digests serves as an ideal case research tool.
Visit wislawjournal.com for links to the full opinions, as well as digests of other
cases. Welcome to our new, and improved, Case Digests:

CIVIL CASES:
Ch. 51 Commitment
WI Court of Appeals District IV
T. B. appeals an order of commitment, an order
for involuntary medication and treatment, and an
order denying postdisposition relief. T. B. argues
that the circuit court erred in denying his postdisposition motion to vacate the order for commitment because, according to T. B., the circuit court
lost competency to adjudicate [his] case when
it failed to make a verbatim record of [his] probable cause hearing, as mandated by WIS. STAT.
51.20(5), and the issue is not moot. For the
reasons set forth below, I reject T. B.s argument
and affirm the orders.
Decision.
Affirmed.
Officials: Kloppenburg, P.J.
2015AP799, Dane County v. T.B.
Immigration Asylum
7th Circuit Court of Appeals
Petition for review granted after Appellant petition for asylum denied. Appellant sought to
escape persecution from Chinas coercive population control program.
Petition granted. Remanded.
Officials: Posner, Kanne, and Hamilton,
Circuit Judges
No. 15-1261, Lishou Wang v. Loretta E. Lynch

Americans with Disabilities Act


Failure to Accommodate
7th Circuit Court of Appeals
Appellant failure to notify Defendant-respondent
of failure to accommodate claim, and lack of
merit fatal to action.
Affirmed.
Officials: Kanne and Sykes, Circuit Judges, and
Ellis, District Judge
No. 14-2344, Larry Hooper v. Proctor Health Care
Incorporated

Agency Union Investigation


7th Circuit Court of Appeals
Company re-enactment video not sufficient
replacement for on-site investigation of employee death.
Company petition to review denied.
Officials: Posner, Manion, and Hamilton,
Circuit Judges
No. 14-3729; 14-3528, NLRB v. Caterpillar, Inc.

Constitutionality of City Ordinance


7th Circuit Court of Appeals
Difficulty in complying with city ordinance not
grounds to deem ordinance unconstitutional.
Affirmed.
Officials: Posner, Easterbrook, and Williams,
Circuit Judges.
No. 14-3678, Discount Inn, Inc. v. City of Chicago

PROCEDURAL MATTERS
Motion for New Trial
Reasonable Accommodations
7th Circuit Court of Appeals
Denial of appellant motion for reasons of her
being disabled was improper given the facts.
Reversed and Remanded.
Officials: POSNER, WILLIAMS, and SYKES,
Circuit Judges.
No. 14-1745, Linda Reed v. State of Illinois

ERISA
7th Circuit Court of Appeals
Chiropractic Association v. Independence
Hospital
Service provider not a beneficiary under ERISA
& Insurer not required to utilize fee-for-service
system in paying providers.
Reversed.
Officials: Easterbrook, Kanne, and Williams,
Circuit Judges.
No. 15-1274; 14-3174; 14-2322 Pennsylvania

Abuse of Process Summary Judgment


Court of Appeals District IV
Barbara Becker appeals a summary judgment
granted in favor of Gebert Law Office, LLC,
dismissing her action for abuse of process on
grounds of attorney immunity. We conclude that
genuine issues of material fact preclude summary judgment.
Reversed and Remanded. Per Curiam.
Officials: Higginbotham, Sherman and Blanchard, JJ
2014AP487, Barbara Becker v. Gebert Law Office, LLC

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Sign on to wislawjournal.com for a complete listing of all decisions issued, as well as links to the full opinions.
New digests are posted every day. Prefer a weekly roundup instead? Wisconsin Law Journal posts a pdf each
Friday of all opinions issued that week. Print it off, read online whatever you prefer.

22

DECEMBER 2015 WISCONSIN LAW JOURNAL

www.wislawjournal.com

Wisconsin Law Journal|CASE DIGESTS


Statute of Limitations
7th Circuit Court of Appeals
Appellant FMLA suit time barred Barrett
does not contest her ninth, tenth, eleventh,
or twelfth unauthorized absences, the last of
which occurred on May 14, 2010. On September
30, 2010, Barrett was suspended without pay
pending termination for excessive absenteeism. She was fired on October 15, 2010. Barrett
sought review before the Illinois Civil Service
Commission. She did not raise an FMLA argument at the hearing.
Affirmed.
Officials: FLAUM, KANNE, and SYKES, Circuit
Judges
No. 13-2833, Cindy Barrett v. Illinois Department
of Corrections
Sufficiency of Evidence Injunction
WI Court of Appeals District I
Daniel Joseph Miller appeals from an order
granting Alan L. Keltner a harassment injunction
against Miller. Miller challenges the sufficiency
of the evidence and the circuit courts findings of
fact, as well as its conclusion that Millers conduct constituted harassment that could be properly
enjoined under [WIS. STAT.] 813.125 (2013-14).
Miller also argues that the injunction effectively prevents [Miller] from exercising his First
Amendment rights, constitutes an impermissible
prior restraint on speech, and is excessively
broad. We reject Millers arguments and affirm
the order.
Decision
Affirmed. Per Curiam.
Officials: Curley, P.J., Kessler and Brennan, JJ.
2015AP77, Alan L. Keltner v. Daniel Joseph
Miller
Cruel & Unusual Punishment
7th Circuit Court of Appeals
Magistrate judge misunderstanding of alleged
cruel & unusual punishment warrants reversal.
Reversed and Remanded
Officials: WOOD, Chief Judge, and POSNER and
ROVNER, Circuit Judges
No. 14-2489, Ronald Beal v. Brian Foster
BUSINESS LAW
Breach of Contract
7th Circuit Court of Appeals
Defendant-appellant reneging on paying leasing fees because of alleged defects breached
agreement with subcontractor
Affirmed in part

www.wislawjournal.com

Reversed and Remanded in part


Officials: POSNER, SYKES, and HAMILTON,
Circuit Judges.
No. 14-1342; 14-1283; 14-1267, Pileco, Inc. v.
Slurry Systems, Inc. et al
Dissolution of Partnership
Court of Appeals District IV
Ricky Hensen appeals a summary judgment order
that dismissed his petition for the dissolution of
a business partnership. He challenges the exclusion of a number of exhibits that he submitted
with his summary judgment materials, and contends that those exhibits in conjunction with his
other materials were sufficient to establish material disputes of fact on several potential theories
for dissolution.
Affirmed. Per Curiam.
Officials: Higginbotham, Sherman and Blanchard, JJ.
2014AP1030, Ricky E. Hensen v. Hensen
Associates, LLP
Shareholders Suit Stock Option Plan
7th Circuit Court of Appeals
Shareholder failure to make demand to corporation to correct alleged violations of Delaware law
fatal to action.
Affirmed.
Officials: POSNER, MANION, and HAMILTON,
Circuit Judges.
No. 15-1006, Jan Donnawell v. Daniel Hamburger
Franchise Law Arbitration Process
WI Court of Appeals District III
We conclude Building Werks concerns about
the fairness of the arbitration process are insufficient to permit anticipatory judicial intervention.
Building Werks must submit its claims in this lawsuit to arbitration in accordance with the franchise
agreements before seeking to vacate any award
as tainted by fraud, bias or a manifest disregard
of the law. However, because Building Werks
unconscionability claim was directed solely at the
validity of the arbitration provisions, and not the
entire franchise agreements, the case law dictates
it was a proper subject for judicial resolution. We
conclude the circuit court properly granted summary judgment on the unconscionability claim
because, as a matter of law, Building Werks has
not demonstrated procedural or substantive unconscionability. Furthermore, the circuit court acted
within its discretion in not compelling additional
discovery with respect to the unconscionability
claim. Accordingly, we affirm.
Decision. Affirmed. Per Curiam.

DECEMBER 2015 WISCONSIN LAW JOURNAL

Officials: Stark, P.J., Hruz, J., and Thomas Cane,


Reserve Judge.
2014AP1849, Building Werks Holdings, LLC v.
Paul Davis Resotration, Inc.
Breach of Contract Damages
WI Court of Appeals District III
Don Frazier appeals judgments and an order granting CJB Rentals, LLC, strict foreclosure on a land
contract and awarding $1 nominal damages to
Frazier in his breach of contract action against CJB
Rentals and Christopher J. Bauer. After a trial to
the court, the circuit court initially ruled in Fraziers
favor on the breach of contract action and set the
matter for further proceedings to establish Fraziers
damages. On reconsideration, the court concluded
it lacked authority to bifurcate liability and damages under WIS. STAT. 805.05(2) (2013-14).
Concluding Frazier failed to prove damages, the
court awarded Frazier nominal damages and granted strict foreclosure on the land contract. Because
we conclude Frazier adequately proved damages
and, to prevent Bauers unjust enrichment, should
have been awarded title to the property, we
reverse the judgments and order and remand the
matter with directions.
Decision
Reversed and Remanded. Per Curiam.
Officials: Stark, P.J., Hruz, J., and Thomas Cane,
Reserve Judge.
2014AP2492, Don Frazier v. CJB Rentals, LLC
Receivership Real Estate Fixtures
WI Court of Appeals I
Bouraxis, Ltd. appeals from an order approving
the receivership sale of real estate, including
the fixtures in the building, owned by Riverwood
Village, LLC, which Bouraxis had been operating
as an Omega restaurant. Bouraxis argues the
fixtures were actually restaurant equipment
or trade fixtures that it owned and should have
been allowed to remove before the sale, or be
paid its monetary value. Because the trial court
did not err in finding that the items at issue were
fixtures, we affirm.
Decision.
Affirmed.
Officials: Curley, P.J., Kessler and Bradley, JJ.
2015AP143, Drexel Commercial Limited
Partnership v. Rebecca R. DeMarb
Breach of Fiduciary Duty Court Error
WI Court of Appeals District III
Michael Trewin appeals a judgment granting
Darryel and Mary Hearley rescission of a 2005

23

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CASE DIGESTS|Wisconsin Law Journal


conveyance of real property to Trewin based on
Trewins breach of his fiduciary duties as the
Hearleys attorney. We agree with Trewin that
the circuit court erred when it determined the
applicable statute of limitations for the Hearleys
claim was WIS. STAT. 893.33, which establishes a thirty-year limitations period for actions
affecting real property.
Decision.
Affirmed in part, reversed in part.
Officials: Stark, P.J., Hruz, J., and Thomas Cane,
Reserve Judge
2014AP2246, White Knight Commercial Funding,
LLC v. Michael G. Trewin
DISCIPLINARY PROCEEDINGS
Disciplinary Proceedings
Attorney takes loan from former client and fails
to repay pursuant to promissory note, fails to
properly notify client regarding case dismissal,
fails to return advanced fees in trust and fails to
cooperate with OL investigation.
License Suspended for 9 months. Restitution
Ordered.
2014AP804-D, Office of Lawyer Regulation v.
Pamela J. Smoler

Disciplinary Proceeding
Attorney license suspended for failure to comply
with OLR investigation, pay bar dues and adhere
to CLE requirement.
License Suspended for two years
Per Curiam.
2014AP2476-D, OLR v. Phillip J. Ramthun

Mercury Insurance Company

Disciplinary Proceeding
WI Supreme Court
Finding of incompetency leads to attorney suspension of license.
Attorney license suspended
Per Curiam
2013AP2235-D, OLR v. Kristy Joi Downing

Insurance Law
Stranger Oriented Life Insurance
7th Circuit Court of Appeals
Ohio National Life Assurance v. Steven Egbert
Insurance company induced to issue fraudulent
death benefits entitled to attorneys fees and
allowed to retain premiums paid by defendants
in fraudulent scheme.
Affirmed.
Officials: BAUER, POSNER, and EASTERBROOK,
Circuit Judges.
No. 1403664, No. 14-3725, Ohio National Life
Assurance v. Douglas W. Davis

INSURANCE LAW
Insurance Ambiguous Terms
Denial of Coverage
7th Circuit Court of Appeals
The term publication not ambiguous as utilized
in insurance policy
Affirmed.
Officials: KANNE, WILLIAMS, and HAMILTON,
Circuit Judges.
No. 14-1805, Defender Security Company v. First

EMPLOYMENT LAW
Retaliatory Termination
7th Circuit Court of Appeals
Appellant Title VII case dismissed in error
The pleading standards in Title VII cases are, of
course, different from the evidentiary burden a
plaintiff must subsequently meet. Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 511 (2002). It may be
that Huri, once discovery has run its course, cannot
produce evidence to survive summary judgment.

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But that question can safely be postponed to
another day. Defendants have fair notice of Huris
claims and the grounds upon which those claims
rest, and the details in her Second Amended
Complaint present a story that holds together.
Reversed and Remanded.
Officials: BAUER and SYKES, Circuit Judges, and
REAGAN, Chief District Court Judge
No. 12-2217, Fozyia Huri v. Office Chief Judge
Cook County

Mertzs claim that he was entitled to unpaid


wages for activities he performed as a correctional officer with the Department of Corrections
(DOC).
Decision
Affirmed. Per Curiam.
Officials: Kloppenburg, P.J., Lundsten and
Sherman, JJ
2014AP2602, Paul J. Mertz v. Wisconsin
Department of Workforce Development

tion is subject to de novo review, we are unable


to address Douglass argument. Accordingly, we
affirm in part; reverse in part, and remand with
directions to make detailed factual findings.
Decision
Affirmed in part, Reversed in Part. Recommended
for Publication.
Officials: Stark, P.J., Hruz, J., and Thomas Cane,
Reserve Judge.
2014AP2656, Douglas L. V. Arika B.

Wrongful Termination
Collective Bargaining Agreement
7th Circuit Court of Appeals
Labor Management Relations Act preempts
appellants tortious interference claim.
Affirmed.
Officials: BAUER, KANNE, and ROVNER, Circuit
Judges
No. 15-1241, Joseph Healy v. Metropolitan Pier
and Exposition Authority
Claim for Unpaid Wages
WI Court of Appeals District IV
Paul Mertz appeals a circuit court order that
affirmed a decision of the Department of
Workforce Development (DWD) dismissing

FAMILY LAW
Paternity Petition
WI Court of Appeals District III
Douglas L. appeals an order dismissing, without
prejudice, his petition to determine paternity.
Douglas argues the circuit court erroneously
concluded that a paternity determination was not
in the best interest of the child. Arika B. crossappeals, arguing the petition should have been
dismissed with prejudice. We reject Arikas argument and conclude the circuit court was authorized to dismiss the petition without prejudice.
However, the court set forth no factual findings
underlying its decision. Because the WIS. STAT.
767.863(1m) best-interest-of-the-child determina-

Divorce Judgment Real Estate


WI Court of Appeals District III
Michael Paulson appeals that part of an order
denying his request to invalidate or reform a quit
claim deed and granting Debra and David Lutze
quiet title to the subject real estate. Paulson
argues the circuit court erred by failing to reopen
Paulsons divorce judgment to allocate the real
estate as an omitted asset. Paulson also contends the deed executed in favor of the Lutzes
was invalid because it lacked Paulsons signature. Finally, Paulson asserts that the court erred
by concluding his suit is barred by laches.
Decision.
Affirmed.

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CASE DIGESTS|Wisconsin Law Journal


Officials: Stark, P.J., Hruz and Seidl, JJ
2015AP230-FT, Michael Paulson v. Debra Lutze
Divorce Court Error
WI Court of Appeals District II
Carrie Marie Hickmann appeals from an amended
judgment of divorce effecting an unequal property division in favor of Andrew Marc Lentz and
ordering an equalization payment to Carrie of
$19,918. She argues that the trial court erroneously exercised its discretion by using a previously rejected formula to divide the marital estate
and affording Andrew a credit for her nonmarital
childs private school tuition.
Decision
Reversed and Remanded.
Officials: Neubauer, C.J., Reilly, P.J., and
Gundrum, J.
2015AP1148-FT, Andrew Marc Lentz v. Carrie
Marie Hickmann
Termination of Parental Rights
WI Court of Appeals District III
G.G. appeals an order terminating his parental
rights to his son. G.G. argues he is entitled to a
new trial because the circuit court erroneously
declined to sequester the childs stepfather, J.J.,
at trial. We reject G.G.s argument and affirm.
Decision
Affirmed.
Officials: SEIDL, J.
2015AP1549, X.J. v. G.G
Termination of Parental Rights
WI Court of Appeals III
F.S. appeals orders terminating his parental
rights to his two minor children, B.S. and E.S. He
asserts the circuit court lost competency to proceed to the dispositional phase of the termination
proceedings because the court failed to explicitly
state that it was finding F.S. unfit after granting
the petitioner, A.N., partial summary judgment in
the grounds phase. Under the applicable statutes
and case law, a circuit court must find the parent
unfit if it concludes grounds for termination have
been established. Because the circuit courts duty
to find a parent unfit necessarily flows from the
conclusion that sufficient grounds for termination exist, we conclude the circuit courts implicit
finding of unfitness was sufficient in this case.
Accordingly, we affirm the orders.
Decision.
Affirmed.
Officials: HRUZ, J.
2015AP1405; 2015AP1406, A.N. v. F.S.

28

Divorce Property Division


Court of Appeals District II
Shawn Sternat appeals the property-division portion of the judgment divorcing him and Rebecca
Sternat after a ten-year marriage. He contends
that the testimony of Rebeccas business valuation expert failed to meet the Daubert reliability
standard for expert testimony and that the court
erroneously concluded that Rebeccas failure
to pay tax liabilities did not constitute marital
waste.
Affirmed. Per Curiam.
Officials: Neubauer, C.J., Reilly, P.J., and
Gundrum, J.
2014AP2844, Rebecca Lynn Sternat v. Shawn
William Sternat
Termination of Parental Rights
WI Court of Appeals District IV
A.C. appeals from orders of the circuit court
terminating her parental rights to S.W. and
M.W. on the basis that they were in continuing
need of protection or services. See WIS. STAT.
48.415(2). A.C. contends that she is entitled to
a new trial on the grounds phase because she
received ineffective assistance of counsel and in
the interest of justice. For the reasons discussed
below, I affirm.
Decision
Affirmed
Officials: SHERMAN, J.
2015AP000899, Sauk Co. DHS v. A.C.

State dismissed seven counts at trial, and the


jury acquitted her on seven additional counts.
This left a finding of guilt and a conviction on a
single misdemeanor offense: intentionally failing to provide food for one of the five horses,
contrary to WIS. STAT. 951.13(1), as penalized
under WIS. STAT. 951.18(1).
Decision
Reversed and Remanded.
2015AP863-CR, State of Wisconsin v. Barbara J.
Thiry
Abuse of Discretion Amended Information
WI Court of Appeals District II
Timothy Johnson appeals from judgments
convicting him of felony bail jumping and misdemeanor receiving stolen property. On appeal,
Johnson challenges the circuit courts discretionary decision to permit the State to amend the
information during trial from misdemeanor theft
to misdemeanor receiving stolen property.
Decision
Affirmed. Per Curiam. Officials: Neubauer, C.J.,
Reilly, P.J., and Gundrum, J.
2014AP2301-CR, State of Wisconsin v. Timothy
J. Johnson

Joinder - Removal from Courtroom


7th Circuit Court of Appeals
United States of America v. Terrance P. Daniels
Appellants not prejudiced by joinder of cases.
Appellant conduct equated to surrender of rights
to be present during court proceedings.
Affirmed.
Officials: WOOD,Chief Judge, and FLAUM and
MANION, Circuit Judges
No. 13-2078; No. 13-2982, United States of
America v. Dahveed Dean

Juvenile Delinquency
WI Court of Appeals District IV
B.A.H. appeals the circuit courts order that
imposed restitution on B.A.H. after the court
found him not competent to proceed on juvenile
delinquency allegations. Because of B.A.H.s
incompetency, the court never made a finding
as to delinquency and instead found that B.A.H.
was a juvenile in need of protection or services.
B.A.H. argues that, under these circumstances,
the circuit court lacked statutory authority to
impose restitution. I agree because, as B.A.H.
points out, the applicable restitution provision
requires a finding that the juvenile committed a
delinquent act resulting in damage or physical
injury. See WIS. STAT. 938.34(5).
Decision
Reversed and Remanded.
Officials: LUNDSTEN, J.
2015AP1256-FT, State of Wisconsin v. B.A.H

FINES & EXPENSES


WI Court of Appeals District IV
Officials: BLANCHARD, J.
Five horses owned by Barbara Thiry were seized
by law enforcement officers and held as part of
an investigation of alleged mistreatment. Thiry
was then charged with fifteen misdemeanor
counts of crimes involving animals. However, the

Plain Error
7th Circuit Court of Appeals
Overwhelming evidence overcomes argument
that court made plain error in identifying
appellant.
Affirmed.
Officials: BAUER, KANNE, and WILLIAMS, Circuit
Judges.

CRIMINAL CASES:

DECEMBER 2015 WISCONSIN LAW JOURNAL

www.wislawjournal.com

Wisconsin Law Journal|CASE DIGESTS


No. 14-2515, United States v. Frederick Addison
Order of Forfeiture
Court of Appeals District II
Steven T. Baumgard and Gladys A. Vogel appeal
from the circuit courts order of forfeiture of the
above-captioned 2013 Toyota Corolla. Defendants
argue forfeiture of the Toyota pursuant to WIS.
STAT. 961.55 (2013-14) is improper because (1)
Vogel is an innocent owner of it under the statute and (2) forfeiture violates the Excessive Fines
Clause of the Eighth Amendment to the United
States Constitution.
Affirmed in Part. Reversed and Remanded in Part.
Recommended for Publication
Officials: Neubauer, C.J., Reilly, P.J., and
Gundrum, J.
2014AP2226, State of Wisconsin v. One 2013,
Toyota Corolla
PLEAS & SENTENCING
Breach of Plea Agreement
7th Circuit Court of Appeals
States departure from plea agreement sentence
recommendation warrants reversal.
Reversed and Remanded

Officials: BAUER and HAMILTON, Circuit Judges,


and ELLIS, District Judge.
No. 12-2606, United States of America v.
Salvador Navarro

Officials: FLAUM, WILLIAMS, and HAMILTON,


Circuit Judges
No. 15-1604, United States of America v. Charles
Armour

Sentence Modification
WI Court of Appeals District I
Jovan T. Mull, pro se, appeals orders denying
his motion for modification of the sentences he
received for crimes he committed in 1999. The
circuit court concluded that an alleged change
in parole policy does not constitute a new factor warranting sentencing relief. We agree and
affirm.
Decision.
Affirmed.
Officials: Kessler, Brennan and Bradley, JJ
2014AP2297-CR; 2014AP2296-CR, State of
Wisconsin v. Jovan T. Mull

Child Pornography
7th Circuit Court of Appeals
Court did not err in sentencing, restitution order,
or conditions of supervised release conditions
imposed.
Affirmed.
Officials: MANION, ROVNER, and HAMILTON,
Circuit Judges.
No. 15-1090; 14-2211, United States of America
v. Christopher Bour
Sentence Modification
WI Court of Appeals District II
Daniel Gandy appeals from a judgment convicting
him of second-degree sexual assault of a child
under sixteen years old and from a postconviction
order denying his motion (1) seeking sentence
modification due to a new factor or (2) resentencing because the circuit court relied upon
inaccurate information. We agree with the circuit
court that Gandy neither demonstrated a new

Abuse of Discretion
7th Circuit Court of Appeals
District court did not abuse its discretion in
ordering restrictive conditions when appellant
revoked.
Affirmed.

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CASE DIGESTS|Wisconsin Law Journal


factor nor established grounds for resentencing.
We affirm.
Decision
Affirmed. Per Curiam.
Officials: Neubauer, C.J., Reilly, P.J., and
Gundrum, J.
2014AP1378-CR, State of Wisconsin v. Daniel J.
Gandy
Resentencing
7th Circuit Court of Appeals
District court imposition of sentence significantly
above the guideline range was court error.
Remanded for resentencing.
Officials: POSNER, KANNE, Circuit Judges, and
DARRAH, District Judge.
No. 14-2368, United States of America v. Alexsis
Garcia
Sentence Modification
WI Court of Appeals District II
Courtney Sobonya requested expungement of her
criminal record at her sentencing for possession
of heroin. The trial court denied her request on the
ground that granting expungement would undermine the deterrent effect of the courts sentence.

30

Sobonya thereafter retained an expert who opined


that granting expungement would not undermine
the deterrent effect of the courts sentence and
offered his report as a new factor relevant to the
courts decision on expungement.
Decision.
Affirmed. Recommended for Publication.
Officials: Neubauer, C.J., Reilly, P.J., and
Gundrum, J
2014AP2392-CR, State of Wisconsin v. Courtney
E. Sobonya
Resentencing
WI Court of Appeals District I
Robert Dale Ramczyk appeals a judgment of
conviction and an order denying postconviction
relief. Ramczyk contends that he is entitled to
resentencing as to restitution and eligibility for
the Challenge Incarceration Program (CIP). We
reject those arguments for the reasons set forth
below. We affirm.
Decision.
Affirmed. Per Curiam.
Officials: Kloppenburg, P.J., Lundsten and
Blanchard, JJ.
2014AP2917-CR, State of Wisconsin v. Robert

DECEMBER 2015 WISCONSIN LAW JOURNAL

Dale Ramczyk
Sentence Modification
Court of Appeals District IV
John G. Dahlk appeals an order denying a motion
for sentence modification. For the reasons
stated below, we reverse and remand for further
proceedings on the question whether Dahlks
post-sentence cooperation with authorities
constitutes a new factor that warrants sentence
modification.
Reversed and Remanded. Per Curiam.
Officials: Kloppenburg, P.J., Lundsten, and
Blanchard, JJ.
2015AP717-CR, State of Wisconsin v. John G.
Dahlk
Sentence Modification
Court of Appeals District I
Kelvin D. Kirk appeals an order denying his motion
for sentence modification. He argues: (1) that the
circuit court sentenced him based on inaccurate
information; (2) that he is entitled to sentence
modification based on a new factor; and (3) that
the circuit court should have recused itself from
deciding the postconviction motion. We affirm.

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Wisconsin Law Journal|CASE DIGESTS


Affirmed. Per Curiam.
Officials: Curley, P.J., Kessler and Brennan, JJ.
2015AP19-CR, State of Wisconsin v. Kelvin D.
Kirk
Pleas & Sentencing
WI Court of Appeals District IV
Gerald Orton appeals a judgment of conviction
and orders denying his postconviction motions.
We affirm.
Decision
Affirmed. Per Curiam.
Officials: Lundsten, Higginbotham and Sherman,
JJ.
2013AP1237-CR, State of Wisconsin v. Gerald O.
Orton
Plea Withdrawal
WI Court of Appeals District III
On appeal, Finley asserts the circuit court erroneously concluded the State met its burden of
showing that his plea was knowing, intelligent,
and voluntary at the time it was entered. The
State has abandoned the argument that it satisfied its burden, and the State also does not
directly respond to Finleys argument, and we

deem the issue conceded.


Decision
Reversed and Remanded. Recommended for
Publication.
Officials: Stark, P.J., Hruz, J., and Thomas Cane,
Reserve Judge.
2014AP2488, State of Wisconsin v. Timothy L.
Finley, Jr.
Court Error Unreasonable Sentencing
General Appeal
7th Circuit Court of Appeals
Court findings appropriate given the severity of
defendant and extensive criminal history
Affirmed.
Officials: BAUER, WILLIAMS, and HAMILTON,
Circuit Judges.
No. 14-3311; 14-3363, United States of America
v. Vernon Chapman
EVIDENCE
Motion to Suppress
WI Court of Appeals District II
John Martin appeals from a judgment of
conviction for possession of tetrahydrocannabinols (marijuana) in violation of WIS. STAT.

961.41(3g)(e). Martin moved to suppress the


evidence, arguing that reasonable suspicion to
justify the police detention of him was lacking.
The circuit court denied the motion to suppress,
concluding that the police had reasonable suspicion to detain him. We agree and affirm Martins
subsequent conviction.
Decision
Affirmed.
Officials: NEUBAUER, C.J.
2015AP597-CR, State of Wisconsin v. John C.
Martin
Admission of Hearsay Evidence
7th Circuit Court of Appeals
Statement of appellant excluded because it
lacked sufficient indicia of trustworthiness.
Affirmed.
Officials: POSNER, MANION, and HAMILTON,
Circuit Judges.
No. 14-2210, United States of America v. Scott
Hawkins
Sentencing Sufficiency of Evidence
WI Court of Appeals District I
Abraham Rodriguez appeals from a judgment of

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CASE DIGESTS|Wisconsin Law Journal


conviction and from an order denying his postconviction motion. He raises arguments regarding
his charges, sufficiency of the evidence, and his
belief he should be resentenced. We affirm.
Decision
Affirmed. Per Curiam.
Officials: Kessler, Brennan and Bradley, JJ.
2014AP2477-CR, State of Wisconsin v. Abraham
Rodriguez

facto clauses of the United States and Wisconsin


Constitutions. We disagree and, thus, affirm the
judgment and order of the circuit court.
Decision
Affirmed. Recommended for Publication.
Officials: Neubauer, C.J., Reilly, P.J., and
Gundrum, J.
2014AP2981-CR, State of Wisconsin v. Tabitha
A. Scruggs

DNA Surcharge
WI Court of Appeals District II
Tabitha A. Scruggs appeals from a judgment
of conviction for burglary as a party to a crime,
which imposed a $250 DNA surcharge pursuant
to WIS. STAT. 973.046(1r)(a) (2013-14), and an
order denying her motion for postconviction relief
vacating the $250 DNA surcharge. At the time
Scruggs committed the crime, the imposition of a
$250 DNA surcharge for that offense was subject
to the courts discretion; however, by the time
she was convicted and sentenced, the legislature
had made the $250 DNA surcharge mandatory
for all felony convictions. Scruggs contends that,
as applied to her, the mandatory imposition of
the $250 DNA surcharge violates the ex post

Sufficiency of Evidence
WI Court of Appeals District I
Joshua J. Feltz appeals from a judgment entered
after a jury found him guilty of two counts of
repeated first-degree sexual assault of the same
child, contrary to WIS. STAT. 948.025(1)(a)
(2013-14)1 , and from an order denying his postconviction motion. Feltz argues: (1) the evidence
was insufficient to support a conviction on the
second count; (2) the police officers testimony
that the victim appeared to be telling the truth
violated State v. Haseltine, 120 Wis. 2d 92, 352
N.W.2d 673 (Ct. App. 1984); and (3) the prosecutors closing argument referencing the victims
religious schooling improperly enhanced her
credibility. We affirm.

Ryan Kromholz & Manion, S.C.


is pleased to announce Keith L. Reese-Kelley
has joined the firm as an associate attorney.
Keith received his B.E.
(2009) and M. Eng.
(2012) from Vanderbilt
University, and his J.D.
(2015) from Marquette
University Law School.
His practice includes all
aspects of intellectual
property law with an
emphasis on IP litigation
and dispute resolution.

Decision
Affirmed.
Officials: Curley, P.J., Kessler and Bradley, JJ
2014AP2675-CR, State of Wisconsin v. Joshua
J. Feltz
Sufficiency of Evidence
Court of Appeals District II
Dewayne D. Knight appeals from a judgment of
conviction entered after a jury found him guilty of
three offenses, including two counts of robbery
stemming from separate incidents. Knight argues
that the evidence at trial was insufficient to sustain the jurys verdict on count three, and that the
trial court erred in denying his motion to sever
charges. We disagree and affirm.
Affirmed.
Per Curiam.
Officials: Neubauer, C.J., Reilly, P.J., and
Gundrum, J.
2014AP2757-CR, State of Wisconsin v. DeWayne
D. Knight

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DECEMBER 2015 WISCONSIN LAW JOURNAL


Wisconsin Law Journal - December
2015

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Wisconsin Law Journal|CASE DIGESTS


Sufficiency of Evidence
Ineffective Assistance of Counsel
WI Court of Appeals District IV
Patrick Gage appeals a judgment convicting
him of two counts of first-degree sexual assault
of a child under thirteen years of age and one
count of second-degree sexual assault of a child
under the age of sixteen and an order denying
him postconviction relief. He was acquitted on
another count involving the same victim and two
additional counts involving a different child. Gage
challenges the sufficiency of the evidence to support the verdicts; raises three claims of ineffective assistance of counsel; requests a new trial
in the interest of justice; and, alternatively, seeks
resentencing based upon a new factor, undue
reliance on a single factor, or a determination
that his sentences were unduly harsh. For the
reasons set forth below, we reject each of these
claims and affirm the judgment of conviction and
postconviction order. We incorporate the relevant
facts and standard of review in our discussion of
each issue.
Decision
Affirmed. Per Curiam.

Officials: Kloppenburg, P.J., Lundsten and


Higginbotham, JJ.
2014AP433-CR, State of Wisconsin v. Patrick J.
Gage
INEFFECTIVE ASSISTANCE
Ineffective Assistance of Counsel
WI Court of Appeals District I
James Washington appeals a judgment of conviction for four counts of first-degree intentional
homicide, as party to a crime, and an order
denying his motion for postconviction relief.
Washington contends that he is entitled to a
new trial because: (1) the jury during voir dire
was given information that he claims made
it more likely for them to convict him; (2) he
received ineffective assistance of trial counsel;
(3) a key witness recanted his testimony, which
Washington asserts constitutes newly-discovered
evidence warranting a new trial; and (4) the real
controversy was not tried. For the reasons discussed below, we affirm.
Decision
Affirmed. Per Curiam.
Officials: Lundsten, Sherman and Blanchard, JJ.

2013AP956-CR, State of Wisconsin v. James R.


Washington

Ineffective Assistance of Counsel


Court of Appeals District IV
Stanley J. Maday, Jr. appeals his conviction for
three counts of first-degree sexual assault of a
child, in violation of WIS. STAT. 948.02(1)(b) and
(e) (2013-14), and an order denying his motion for
post-conviction relief. Maday contends that his
trial counsel was ineffective. Maday argues that
trial counsel performed deficiently by failing to
object to testimony that he asserts was impermissible expert opinion testimony to the effect that
the victim was telling the truth when the victim
made a statement incriminating Maday, and that
Maday was prejudiced by the experts impermissible testimony. Maday raises other issues that we
need not address because we agree with Maday
that his trial counsel was ineffective.
Reversed and Remanded. Per Curiam.
Officials: Higginbotham, Sherman and Blanchard, JJ
2015AP366-CR, State of Wisconsin v. Stanley J.
Maday, Jr.

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33

CASE DIGESTS|Wisconsin Law Journal


Ineffective Assistance of Counsel
WI Court of Appeals District I
Appellant Darryl P. Benson appeals an order denying his postconviction motion. He argues: (1) he
received ineffective assistance of appellate counsel
because his lawyer did not argue that the circuit
court erred when it answered a question from the
jury; (2) he received ineffective assistance of appellate counsel because his lawyer did not argue that
his trial counsel ineffectively represented him; (3)
he received ineffective assistance of trial counsel
because his trial lawyer did not object to the circuit
courts response to the jury question; and (4) the circuit court should not have denied his postconviction
motion without an evidentiary hearing. We affirm
Decision
Affirmed. Per Curiam.
Officials: Curley, P.J., Kessler and Brennan, JJ.
2013AP918, State of Wisconsin v. Darryl P.
Benson
Ineffective Assistance of Counsel
Court Error
WI Court of Appeals District IV
Eric Koula appeals a judgment of conviction for

two counts of first-degree intentional homicide


and one count of forgery, and an order denying
his motion for postconviction relief. Koula contends that: (1) the circuit court erred in admitting
out-of-court statements of one of the victims;
(2) he received ineffective assistance of counsel
at trial; (3) the circuit court erred in excluding
evidence at trial; and (4) he should be granted a
new trial in the interest of justice because the
real controversy was not fully tried. For the reasons discussed below, we affirm.
Decision
Affirmed. Per Curiam.
Officials: Higginbotham, Sherman and Blanchard,
JJ.
2014AP2224-CR, State of Wisconsin v. Eric G.
Koula
Writ of Habeas Corpus
Ineffective Assistance of Counsel
7th Circuit Court of Appeals
State failed to correct eyewitness recantation
of testimony that ultimately led to conviction of
Appellant.
Reversed and Remanded
Writ Granted.

Officials: BAUER and HAMILTON, Circuit Judges,


and ELLIS, District Judge. *
No. 13-3327, Paysun Long v. Kim Butler
Ineffective Assistance of Counsel
Juror Confusion
Court of Appeals District III
Richard Brabson appeals a judgment of
conviction for felony criminal damage to property
and disorderly conduct and an order denying
his motion for postconviction relief. Brabson
argues his trial counsel was ineffective for failing
to request a proper jury instruction regarding
the law of easements, seeks a new trial in
the interest of justice due to juror confusion
regarding easements, argues there was
insufficient evidence that the criminal damage
to property exceeded $2500, and argues the
trial court improperly ordered restitution for the
victims attorneys fees. We reject Brabsons
arguments, except that we agree some of the
attorneys fees were not properly ordered to be
paid as restitution.
Affirmed in Part. Reversed and Remanded in Part.
Per Curiam.
Officials: Stark, P.J., Hruz and Seidl, JJ.

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DECEMBER 2015 WISCONSIN LAW JOURNAL

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Wisconsin Law Journal|CASE DIGESTS


2014AP2784-CR, State of Wisconsin v. Richard
L. Brabson
OPERATING WHILE INTOXICATED
Ineffective Assistance of Counsel
Court of Appeals District IV
Joseph William Netzer, pro se, appeals a judgment convicting him of operating a motor vehicle
while under the influence of a controlled substance, first offense, in violation of WIS. STAT.
346.63(1)(am). Netzer argues on appeal that he
received ineffective assistance of counsel, was
denied his constitutional right to a jury trial, and
that the results of his blood tests were impermissibly admitted into evidence. We conclude that
Netzer possessed no constitutional right to effective assistance of counsel in a civil proceeding,
that the trial court properly exercised its discretion in denying Netzers motion to extend jury
demand time limits, and that Netzer has failed to
present a fully developed argument on and properly preserve his claims of improperly admitted
evidence. Accordingly, we affirm the circuit court
Affirmed.
Officials: HIGGINBOTHAM, J.
2015AP213, State of Wisconsin v. Joseph
William Netzer
OWI 10th Issue Preclusion
Court of Appeals District III
Anthony Mastro appeals a judgment of conviction for tenth-offense operating while intoxicated
(OWI) and an order denying his postconviction motion seeking an amended judgment of
conviction and resentencing. Prior to this case,
Mastros most recent OWI conviction occurred
in a 2009 case in Brown County, in which the
State acquiesced to Mastros collateral attack

against four prior OWI-related convictions in


Minnesota. On appeal, Mastros only argument
is the circuit court in this case erroneously
refused to apply the doctrine of issue preclusion
to foreclose penalty enhancement based upon
the four Minnesota convictions challenged in the
2009 case. Mastro has failed to demonstrate the
court erroneously exercised its discretion when
it determined that fundamental fairness did not
require the State in the present case to be bound
by its earlier concessions.
Affirmed.
Per Curiam.
Officials: Stark, P.J., Hruz and Seidl, JJ
2014AP2716-CR, State of Wisconsin v. Anthony
S. Mastro
OWI 3rd Denial of Motion to Suppress
Court of Appeals District III
Joshua Vitek appeals a judgment convicting him
of operating a motor vehicle while intoxicated
(OWI), third offense, based on the circuit courts
denial of his motion to suppress. Vitek argues the
circuit court erroneously concluded a police officer had reasonable suspicion to stop the vehicle
he was driving based solely on information that
the operating privileges of one of the vehicles
registered owners was suspended. We conclude
the State failed to meet its burden of proving the
stop was supported by reasonable suspicion, and
we therefore reverse and remand with directions
that the circuit court grant Viteks suppression
motion and hold such further proceedings as are
necessary to resolve the case.
Reversed and Remanded.
Officials: HRUZ, J.
2015AP421-CR, State of Wisconsin v. Joshua
Allan Vitek

Mishlove and Stuckert


Attorneys at Law

Wisconsin OWi defense


the law and Practice,
by Andrew Mishlove and
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lawyers and Judges
Publishing

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Board Certified Specialist


in Drunk Driving Defense
By the National College for
DUI Defense ABA Accredited.
Wisconsin-OWI.com andrew@MishloveandStuckert.com

DECEMBER 2015 WISCONSIN LAW JOURNAL

PARENTAL RIGHTS
Termination of Parental Rights
Court of Appeals District IV
J.R.D., the father of three minor children, M.L.D.,
E.N.D., and V.A.D., appeals the orders terminating his parental rights to the children. The
father argues that the orders should be reversed
because: (1) the petition to terminate did not
give him sufficient notice of the grounds for termination; and (2) the circuit court demonstrated
a lack of impartiality when, according to the
father, it told the Petitioner [mother] to proceed
on different grounds. For the reasons set forth
below, I reject the fathers arguments and affirm.
Affirmed.
Officials: KLOPPENBURG, P.J.
2015AP1726; 2015AP1727; 2015AP1728, N.A.H.
v. J.R.D.
Termination of Parental Rights
Court of Appeals District I
Mr. G appeals from an order terminating his
parental rights to A.K. and from an order denying
his postdisposition motion. He argues that: (1)
the trial court failed to ensure that his stipulation
to grounds was made voluntarily and with an
understanding of the nature of the failure-toassumeparental-responsibility ground; (2) WIS.
STAT. 48.415(6), as applied to him, violates his
right to substantive due process; and (3) the trial
court erroneously exercised its discretion when
it denied him a new dispositional hearing based
upon alleged newly discovered evidence. For the
reasons which follow, we affirm.
Affirmed.
Officials: BRENNAN, J.
2015AP245, State of Wisconsin v. K.G.

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Phone 24/7: 414-332-3499
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35

Verdicts & Settlements

VERDICTS&
SETTLEMENTS

For a complete database of all verdicts and settlements


and to submit your own online visit

wislawjournal.com

For help submitting or to get an


email copy of the form, contact
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Parties reach settlement in lawsuit over childs injuries from eyeglass display
Milwaukee County Circuit Court Judge Richard Sankovitz approved
a $300,000 settlement of a lawsuit involving a minor injured at a WalMart store, and signed a dismissal order July 14, 2014.
The settlement included attorney fees, costs, and payment of medical expenses, as well as $31,220.86 to the minors mother for her loss
of aid, society, comfort and companionship as a result of her childs
injuries. Also included was $150,000 to purchase an annuity for the
minors benefit.
Wal-Mart agreed to pay the $300,000 settlement, and the plaintiffs
were directed to execute a release in full to all defendants.
Case history (according to court documents):
On Nov. 7, 2010, then 4-year-old J.M.A. was injured at a Wal-Mart
store in Monroe when a metal spike on a childrens sunglasses display
penetrated his left eye, causing him to suffer a large corneal laceration
and a cataract.
The minor underwent immediate emergency surgery. Two days
later, he underwent a lensectomy, removal of the cataract, and wound
revision. After a five-month recovery period, the anterior portion of
the minors eye was reconstructed, a corneal scar was removed, and
the minor was given both a corneal transplant and a lens implant.
Vision in the eye, with a corrective contact lens, remained at
20/200, making him legally blind. He wore glasses, not for corrective
purposes, but to protect his remaining eye from injury.
According to the complaint, defendant Syndicate Systems Inc., a
division of the defendant Leggett & Platt Inc., designed and set up the
sunglass display that injured the minor.
The plaintiffs argued Syndicate Systems had failed to exercise ordinary
care with respect to the design, nature, and condition of the sunglass
display, including the use of metal spikes to display the sunglasses.
Cristina Janda

SETTLEMENT

$300,000
Case name: J.M.A., a minor, by
his guardian ad litem, Paul Scoptur,
and Brenda Myers, individually and
as mother and natural guardian
of J.M.A., plaintiffs, and State
of Wisconsin, Department of
Health Services, and Dean Health
Plan Inc., involuntary plaintiffs
v. Wal-Mart Stores East LP, ABC
Insurance Company, a fictitious
insurance company, Syndicate
Systems Inc., and Leggett & Platt
Inc., defendants
Case type: personal injury
Court: Milwaukee County Circuit
Court
Case number:12-CV-2221
Date of incident: Nov. 7, 2010
Disposition date: July 10, 2014
Injuries: large corneal laceration
and traumatically induced cataract
Special damages: Pain, medical
and hospital expenses, future loss
of earning capacity, attorney fees
and costs
Plaintiffs attorneys and firm:

Paul Scoptur of Aiken & Scoptur


SC, Milwaukee (representing
plaintiffs), Jesus Garza
(representing involuntary plaintiff
Wisconsin Department of Health
Services), and Jamie Stock-Retzloff
(representing involuntary plaintiff
Dean Health Plan)
Defendants attorneys:
Thomas Ewing of Whyte
Hirschboeck Dudek SC, Milwaukee
(representing Wal-Mart), Minh Wai
of Patton & Ryan LLC, Chicago Ill.
(representing Leggett & Platt), and
W. Patrick Sullivan of Siesennop &
Sullivan, Milwaukee (representing
Syndicate Systems)
Plaintiffs experts: Dr. Neil
Lucchese, pediatric ophthalmology,
of Dean Clinic, Madison; and
Dr. Christopher Croasdale,
ophthalmology, Dean Clinic,
Madison
Defendants expert: Alex Balian,
retail industry consultant at Balian
& Associates, West Hills Calif.

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DECEMBER 2015 WISCONSIN LAW JOURNAL

www.wislawjournal.com

Verdicts & Settlements

Fight between company president, delivery


driver results in settlement
Racine County Circuit Court Judge Gerald Ptacek signed a stipulation
and order June 30, 2014, for distribution of proceeds in a lawsuit involving a company president who was injured in a fight with a delivery driver.
The parties agreed to a settlement of $182,696.01, which included
$54,000 in attorney fees and $4,057.51 in costs. The settlement also
included $34,031.63 to General Casualty Co. of Wisconsin, $41,130.71
to the plaintiff, and $49,476.16 to the plaintiff as a cushion or credit
against any additional workers compensation claim.
Case history (according to court documents):
On Sept. 7, 2010, the defendant, James Ferguson, while working as
a delivery driver for the defendant Nassco Inc., went to Gallo Manufacturing Co. Inc. in Racine to deliver certain products. Thomas Sollman,
another plaintiff, was the president of Gallo.
After Sollman told Ferguson the product was inadequate, Ferguson
started to argue. Sollman said he asked Ferguson to leave the premises.
However, according to Sollman, Ferguson refused to leave, began yelling at Sollman and attacked Sollman.
Ferguson is suspected of having punched Sollman in the face several
times, causing him to fall to the ground, and then continued to punch
Sollman.
Sollman suffered facial fractures, chipped teeth and an impacted
sinus cavity.
Sollman, his wife, and Gallo filed a lawsuit against Ferguson, Nassco Inc.,
and Nassco Inc.s insurer, The Cincinnati Insurance Co., in December 2010.
The plaintiffs asserted claims for intentional tort and negligent hiring and
supervision. Gallo also claimed that, as a result of the assault and Sollmans
subsequent hospitalization, the fulfillment of customer orders was delayed,
causing the company to incur more than $40,000 in extra shipping costs
to expedite the delivery and satisfaction of the orders. Sollmans spouse
brought a related claim of loss of society and companionship.
Before the parties settled, the court had dismissed the plaintiffs claim
of negligent hiring and supervision. Subsequently, a jury decided Fergu-

SETTLEMENT

$182,696.01
Case name: Thomas and Doreen
Sollman, and Gallo Manufacturing.
Co. Inc., plaintiffs, and General
Casualty Company of Wisconsin
and Anthem Insurance Companies
Inc., involuntary plaintiffs v. James
Ferguson, Nassco Inc., and The
Cincinnati Insurance Co., defendants
Case type: torts
Court: Racine County Circuit
Court
Case number:10-CV-3885
Date of incident: Sept. 7, 2010
Disposition date: July 30, 2014
Injuries:facial fractures, chipped
teeth and impacted sinus cavity
Special damages: past
and future medical expenses,
pain and suffering, loss of
ability to enjoy life, costs and
consequential damages, spouses
related claim for loss of society
and companionship, punitive

damages, costs, disbursements,


and attorney fees
Trial dates: March 4, 2014
Plaintiffs attorneys: Michael
Piontek,of Michael Piontek LLC,
Racine (representing plaintiffs),
John Becker of Becker, French
& Durkin, Racine (representing
plaintiffs), James Ratzel of Ratzel
& Associates LLC, Brookfield
(representing involuntary plaintiff
General Casualty Co.), and Joel
Tilleson of the Falk Legal Group,
Milwaukee (representing involuntary
plaintiff Anthem Insurance)
Defendants attorneys: James
Ferguson proceeding pro se,
and Michael Murray of Kasdorf,
Lewis & Swietlik SC (representing
defendants Nassco Inc. and
Cincinnati Insurance)
Defendants expert: Dr. Scott
Levin, oral and maxillofacial surgeon

son had been acting within the scope of his employment at Nassco Inc.
at the time of the incident.
Cristina Janda

Verdicts & Settlements


Search online at verdicts.wislawjournal.com
New reports every week.
www.wislawjournal.com

DECEMBER 2015 WISCONSIN LAW JOURNAL

37

Verdicts & Settlements

Parties settle in lawsuit involving child hit by car while exiting bus
Judge Jeffrey Conen of the Milwaukee County
SETTLEMENT
Circuit Court approved a minor settlement totaling $87,500 in a personal-injury lawsuit.
The settlement, reached with ArgonautMidwest Insurance Co., included $21,875 to
Case name: H.G. and Zaid Gebremehin,
the plaintiffs attorneys for fees, $2,348.91 to
elbow injuries
Special damages: medical and hospital
the plaintiffs attorneys for costs, $3,000 to the plaintiffs, and State of Wisconsin Department
minors mother, $50,788.63 to be deposited
of Health Services and United Healthcare of
expenses, pain and suffering, restricted
into an interest-bearing account for the benefit
Wisconsin Inc., involuntary plaintiffs v. The
enjoyment of life, mothers related claim
of the minor, and $9,487.46 for subrogation.
Bus Stop LLC, Argonaut-Midwest Insurance
for loss of society and companionship,
Case history (according to court
Co., and Tammy Rose, defendants
compensatory damages, attorney fees and
Case type: personal injury
documents):
costs
Court: Milwaukee County Circuit Court
Plaintiffs attorneys: Michael Trager of
H.G., a minor, was a passenger on a school bus
operated by the defendant Tammy Rose and owned Case number: 12-CV-008078
Phillips, Cymerman & Stein SC, Milwaukee
Date of incident: June 9, 2011
Plaintiffs experts: Dr. Scott Van Valin,
by the defendant The Bus Stop LLC. The defendant
Disposition date: July 8, 2014
Argonaut-Midwest Insurance Co. provided insurpediatric orthopedic surgeon at Childrens
Injuries: fractured shin bone, and head and
ance coverage for The Bus Stop LLC, including
Hospital of Wisconsin, Milwaukee
coverage for negligence by uninsured motorists.
vide H.G. with adequate warning of the imminent risk of harm, exposing
Rose stopped the bus for H.G. to exit. When
H.G. to an unreasonable risk of harm and failing to ensure H.G. was safe
exiting, H.G. was struck by a vehicle operated by an unknown driver.
and protected upon leaving the bus.
The driver failed to yield to H.G. while she was crossing the street.
In addition, the plaintiffs contended that the unknown driver, an
H.G. suffered injuries to her head and elbow, and a fractured shin bone.
uninsured
driver covered by The Bus Stops insurance policy, was negH.G. and her mother, Zaid Gebremehin, brought negligence claims.
ligent
in
failing
to act as a proper lookout, driving inattentively, failing to
Specifically, the plaintiffs argued that The Bus Stop failed to follow adequate
control
his
vehicle
and driving too fast for the conditions.
safety precautions and failed to properly train and supervise its bus drivers.
Cristina Janda
The plaintiffs also asserted that Rose was negligent in failing to pro-

$87,500

Jury awards more than


$83K in trip-and-fall lawsuit

SETTLEMENT

$83,859.98

Judge Jeffrey Conen of the Milwaukee County


Circuit Court approved a minor settlement total Case name: Mona Lynn, plaintiff, and
Trial dates: July 15, 2014
ing $87,500 in a personal-injury lawsuit.
Plaintiffs attorney: Geoffrey Wilber of
Kathleen Sebelius, Secretary of the United
The settlement, reached with ArgonautStates Department of Health and Human
Gruber Law Offices, LLC, Milwaukee
Midwest Insurance Co., included $21,875 to
Defendants attorneys: Charles Bohl and
Services, involuntary plaintiff v. Southridge
the plaintiffs attorneys for fees, $2,348.91 to
Limited Partnership LLC, defendant
Benjamin Dyer of Whyte Hirschboeck Dudek
the plaintiffs attorneys for costs, $3,000 to the
Case type: trip and fall
SC, Milwaukee
minors mother, $50,788.63 to be deposited
Court: Milwaukee County Circuit Court
Plaintiffs experts: Dr. Wong, West Allis,
into an interest-bearing account for the benefit
Case number: 13-CV-000506
and Dr. Xa Xasap and Dr. James Baisden
of the minor, and $9,487.46 for subrogation.
Date of incident: Aug. 17, 2011
of Froedtert Memorial Lutheran Hospital,
Case history (according to court documents):
Disposition date: Oct. 3, 2014
Milwaukee
H.G., a minor, was a passenger on a school bus
Injuries: injured nose, mouth, neck & wrists
Defendants experts: Dr. Robert Krippendorf
operated by the defendant Tammy Rose and owned
Special damages: pain, medical expenses,
of Froedtert Memorial Lutheran Hospital,
by the defendant The Bus Stop LLC. The defendant
interest, costs, attorney fees and disbursements Milwaukee
Argonaut-Midwest Insurance Co. provided insurance coverage for The Bus Stop LLC, including
The plaintiffs also asserted that Rose was negligent in failing to procoverage for negligence by uninsured motorists.
vide H.G. with adequate warning of the imminent risk of harm, exposing
Rose stopped the bus for H.G. to exit. When exiting, H.G. was struck H.G. to an unreasonable risk of harm and failing to ensure H.G. was safe
by a vehicle operated by an unknown driver. The driver failed to yield to and protected upon leaving the bus.
H.G. while she was crossing the street.
In addition, the plaintiffs contended that the unknown driver, an
H.G. suffered injuries to her head and elbow, and a fractured shin bone. uninsured driver covered by The Bus Stops insurance policy, was negH.G. and her mother, Zaid Gebremehin, brought negligence claims.
ligent in failing to act as a proper lookout, driving inattentively, failing to
Specifically, the plaintiffs argued that The Bus Stop failed to follow adequate control his vehicle and driving too fast for the conditions.
safety precautions and failed to properly train and supervise its bus drivers.
Cristina Janda
38

DECEMBER 2015 WISCONSIN LAW JOURNAL

www.wislawjournal.com

Verdicts & Settlements

Parties settle lawsuit over three-car accident


Milwaukee County Circuit Court Judge
SETTLEMENT
Jeffrey Conen signed an order July 30, 2014,
approving a $68,000 settlement in a motorvehicle lawsuit.
The settlement included $22,666.66 for attor Case type: motor vehicles
Defendants attorneys: Rick Hills and
ney fees, $2,987.15 for costs, $14,115.40 to the
Court: Milwaukee County Circuit Court
plaintiff, $15,901.65 for a workers compensation
Katherine Steffe of the Hills Legal Group Ltd.,
Case number: 13CV000493
lien and $12,320 to serve as a cushion against
Waukesha (representing Hartford), Shannon
Date of incident: March 26, 2012
any future workers compensation benefits.
Tevithick of Britton & Associates SC, Milwaukee
Disposition date: July 30, 2014
Case history (according to court documents):
(representing Twin City Fire), and Edward Stewart
Injuries: torn left shoulder joint & shoulder pain
The plaintiff, Desmond Washington, was
of Stotler & Stewart, Waukesha (representing
Special damages: medical expenses, prevented
driving north on March 26, 2012, on North 76th
Universal Underwriters, Zurich American
Street near its intersection with West Bradley
from engaging in normal activities, loss of earnings, Insurance Co., Russ Darrow LLC, and Gray)
Plaintiffs experts: Dr. Bindu Bamrah
Street in Milwaukee. At the same time, the
interest, costs, attorney fees, and disbursements
Plaintiffs attorneys and firm: Eric Knobloch
defendant Carl Gray, while employed by another
of the Orthopedic Institute of Wisconsin,
defendant, Russ Darrow LLC, failed to stop at a
Franklin, and Dr. Benjamin Gozon of Capital
of Gruber Law Offices LLC, in Milwaukee
traffic signal at the intersection, and caused a col- (representing plaintiff), and Russ Delury
Rehabilitation Clinic, Milwaukee
Defendants expert: Dr. Stephen Barron, St.
lision in which Washingtons vehicle was struck.
of Gibson & Sharps PSC, Louisville, Ky.,
Another defendant, Valencia Walton, was also
(representing intervenor Auto Owners)
Louis Park, Minn.
involved in the accident while employed by the defenand such negligence was a direct and proximate cause of the accident.
dant On Time Transportation Service LLC. According
According to the pretrial report of Gray, Russ Darrow LLC and their insurto Washington, Walton lost control of her vehicle after entering the intersection.
ers,
Gray drove through the intersection at a green or yellow light when
Washington was injured in the accident. She had a torn left shoulder
Walton,
who drove through a red light, unexpectedly struck his vehicle. The
joint and shoulder pain.
nature
and
extent of any injuries suffered by the plaintiff were disputed.
In the lawsuit, Washington argued that Gray and Walton were negligent,
Cristina Janda

$68,000

Leaders in the Law 2016


Nominations due: Dec. 10
In February, Wisconsin Law
Journal will honor the top
members of the states
legal community with our
14th annual Leaders in the
Law awards. But we need
your help to decide who
deserves recognition.

Honorees will be chosen based on a wide variety of achievement criteria, including


outstanding leadership, vision and legal expertise. Well also recognize those who
have contributed important pro bono work and improved their community at large.
Nominations are due by Dec. 10 and a form is available online at
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Each Leader in the Law will be recognized at the February 18, 2016 event
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If you have questions on the event or
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39

Practice Management

t
i
e
t
Wri
t
h
g
i
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at
,
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ty
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it
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By Jessica Stephen
Law Journal
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40

DECEMBER 2015 WISCONSIN LAW JOURNAL

www.wislawjournal.com

Practice Management
Lenn Eidson Espenschied resisted writing
about grammar.
Im not a grammarian; I didnt study English, even in college, said Espenschied, who
wrote The Grammar and Writing Handbook
for Lawyers.
But, one day, she knew she had found her
calling.
I was in the law office one day and a
partner came storming in, and he was irate
because an associate didnt understand that
irregardless is not a word. He was absolutely losing it, so I decided that day I would
write the grammar book after all because I
could see these lawyers needed it.
The foundation for her future was laid in
1994, when the National Council of Teacher
of English recommended deleting grammar
from school curricula. Since then, students at
all levels have largely lacked formal instruction in grammar.
Now, Espenschied said, those students
are emerging from law schools.
And their lack of grammatical knowledge

Jim Cole brought a huge amount


of knowledge, experience and skill
to our dispute settlement.
Matej Kosmrlj, Managing Director,
European software company
Jims patience and input made both sides look forward.
I dont think anyone could expect more from a mediator.

GRAMMAR, continued on page 42

Jim Cole
Jim Cole brought
a huge amount
Mediatorexperience
& Arbitrator
of knowledge,
and skill
to our dispute settlement.
If your disputes require
Matej Kosmrlj, Managing Director,
expertEuropean
mediation
call
Jim Cole.
software
company

Mediator
Certificate
The both
Franklin
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Jims patience
andgranted
input by
made
sides
lookLaw
forward.
I dont think anyone could expect more from a mediator.
Member:
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& Arbitrators
ADR Systems of America Panel of Neutrals
Resolute Systems Panel of Mediators & Arbitrators

Designated:
The Best Lawyers in America, Alternate Dispute Resolution
(2005 -)
Chambers USA
Wisconsin Super Lawyers
Dane Countys Top Alternative Dispute Resolution Attorneys
(Madison Magazine, 2004 -)

Jim Cole
Mediator & Arbitrator

Who Gets
What
Attorney prepares will for a client who is
matriarch to a complex set of families and
potential beneficiaries. At her death, some
are unhappy with their share and sue the lawyer.
Explore likely complications when doing an estate
plan and document everythingincluding

the clients intent. Wisconsin Lawyers


Mutual is paying attention, along with our
policyholders, to this growing practice area.

If your disputes require


expert mediation call Jim Cole.
Mediator Certificate granted by The Franklin Pierce Law Center

33 E. Main St., Suite


900 Madison, WI 53703
Member:
Phone:
(608)283-2403
Email: Panel
jim@coleadr.com
American
Arbitration Association
of Mediators
Website:
& www.coleadr.com
Arbitrators
ADR Systems of America Panel of Neutrals
Resolute Systems Panel of Mediators & Arbitrators

Madison WI 800.373.3839 wilmic.com


Professional liability coverage for solo and
small firm practices in Wisconsin since 1986.

Designated:
DECEMBER 2015 WISCONSIN LAW JOURNAL
The Best Lawyers in America, Alternate Dispute Resolution
(2005 -)

www.wislawjournal.com

41

Practice Management

You dont have to remember all the rules of grammar, but you do have to have a flag that goes
up to check it. Then, you need to know to check it and get it right.

Mary Barnard Ray

University of Wisconsin Law School senior lecturer emerita and author

GRAMMAR, continued from page 41


is raising the collective blood pressure of
an entire generation of older attorneys,
while leaving less-than-senior associates
unaware even that they are such a source
of irritation.
Younger lawyers are not lazy, and they
are not careless all these negative adjectives you could use to describe them,
said Espenschied, a consulting faculty
member at Thomson Reuters who offers
webinars and instructional videos through
the Westlaw legal education center.
They are products of an educational
system that, basically, failed them, in my
opinion, because they simply are not being
taught grammar.
And, yet, younger associates are not
alone in their inability to grasp grammar.
Occasionally, we could all use a little help.
But how do you know if its time to brush
up?
If you have a partner or senior counsel
who is actually correcting your grammar,
you need to go and do some remediation,
Espenschied said.
Thats not the only sign.
If your subjects and verbs dont agree, if
you have an incomplete sentence or if you
have a comma splice (or wouldnt know one
if your law license depended on it) you are
at risking of making a grammatical gaffe.
Of course, not every error is fatal.
On a scale of one to 10, not knowing the
difference between who and whom would
be a four, Espenschied said. Not writing in
complete sentences is a 10.
But even little mistakes make a difference.
A lawyer loses credibility immediately with
clients, colleagues, judges, if you cant use
grammar correctly, Espenschied said.
Mary Barnard Ray agreed.
There are certain grammar errors that, if you
make them, people think youre not smart, said
Ray, senior lecturer emerita at the University of
Wisconsin Law School and the author of several
42

Reading List
The Grammar and Writing Handbook for Lawyers,
by Lenn Eidson Espenschied
Legal Writing: Getting it Right and Getting it
Written, by Mary Barnard Ray
Things Your Grammar Never Told You, by Maurice
Scharton and Janice Neuleib
Legal Writing in Plain English, by Bryan A. Garner
Writing Tools: 50 Essential Strategies for Every
Writer, by Roy Peter Clark

books on legal writing, among them The


Basics of Legal Writing and Legal Writing:
Getting it Right and Getting it Written.
Things matter in legal writing that dont
matter in other (forms of writing), and a lot
of it is about controlling meaning, Ray said.
Not all documents require controlling meaning, but when you have to control meaning,
when you need to avoid having a debate later,
your punctuation, your word choice, everything has to be consistent. You cant create
an inaccuracy and you dont want ambiguity,
if you dont want wiggle room.
All of this is particularly true since
the interpretation of documents, mainly
of contracts, is based on the rules of
construction.
If a provision comes under scrutiny, the
court is going to apply the rules of grammar because that is one of the first rules of
construction: The lawyer is to apply those
rules of grammar when drafting a contract,
Espenschied said.
How can attorneys avoid contract-killing
errors?
You dont have to remember all the rules
of grammar, but you do have to have a flag

DECEMBER 2015 WISCONSIN LAW JOURNAL

that goes up to check it, Ray said. Then,


you need to know to check it and get it right.
Computer grammar and spell-check
programs are often good places to start. But,
instead of relying on Word to do the work,
Ray and Espenschied suggested attorneys try
to learn why they are making errors.
Spell checkers, grammar checkers are
pretty good, but its good to know how to do
it yourself, Ray said. You just have to know
how sentences work, how English works, to
be really good at grammar.
In other instances, its best to take the spell
checker out of the equation and remove easily
confused pairs of words such as: advice,
advise; but, butt; facts, fat; trial, trail.
Take those words out of your spell
checker, Ray said. Its so easy to flip them.
When it comes to sentence structure, Ray
suggested keeping it simple.
Identify the verbs, find the subject, make
sure they agree, then go through every document, every email. Its slow at first, but once
you get the hang of it, it goes pretty quickly,
she said.
And it builds a grammatical muscle that no
spell check can ever replace.

www.wislawjournal.com

Practice Management

THE STRESS TEST

How to know when anxiety is harming your work

Jessica Stephen
Special to the Wisconsin Law Journal

For attorneys, anxiety is more than a matter


of mental health.
It affects lawyers in terms of malpractice
claims, said Tom Watson, senior vice president
of Wisconsin Lawyers Mutual Insurance Co.
Malpractice, and even small errors, dont
occur because people are necessarily bad
lawyers, but because things fell through the
cracks, argued Watson, a former family law
attorney who has worked at Wisconsin Lawyers Mutual for about 10 years. They have too
much to do. They dont have a good work-life
balance. Things can creep up on a lawyer.
Those things often lead to even more stress
and anxiety, which can build to the point that
they harm a persons performance.
How often is it stress or anxiety or being
overwhelmed by work? How often do those
things play a role in a malpractice claim? I
dont have a percentage, Watson said. But I
can tell you for sure that we do see it.
Anxiety is the second-most common
subject of mental-health complaints made by
attorneys who get in touch with the State Bar
of Wisconsins Lawyer Assistance Program
trailing just behind depression. And of the 700
contacts the program records each year, about
50 percent are for mental illness; the other 50
percent are usually for substance abuse, said
Linda Albert, the program manager.
With anxiety being found in about 18 percent of the general population, those numbers
indicate an inordinate amount of worry, even
considering the inherently stressful work
found in the legal world.
The situational anxiety with attorneys tends
to center on high caseloads, missing deadlines, not being prepared, the adversarial approach, Albert said. I see a lot of anxiety over
competing interests, not really having time
for leisure and home life. Theres been a lot of
anxiety around financial concerns, particularly
since 2008 or 2009. But, typically, the lawyers
just have too much on their plates.

www.wislawjournal.com

Attorneys usually can tell that theyre in


trouble when their work begins to suffer. But,
Albert said, warning signs almost always
emerge well before that point.
The common signs are racing thoughts, a
pit in the stomach, a sense of dread; they dont
really know what theyre dreading but they
have a bad feeling something is going to happen, said Albert, a psychotherapist who has
worked in the mental health field for nearly 35
years. They have trouble sleeping. They have

DECEMBER 2015 WISCONSIN LAW JOURNAL

tension. A lot of times people with anxiety feel


like theyre vibrating, theyre humming, like
those of us who feel like they have too much
caffeine, explained Albert.
The constant worry can lead to increased respiration and heart rates. These are often symptoms of a panic attack, but can be mistaken for
those of a heart attack or other ailment.
You actually feel like youre going to die,
ANXIETY, continued on page 45

43

People and Places


WHOS DOING WHAT

Gonzalez Saggio & Harlan


adds Pastrana to labor
group
Carlos Pastrana has joined Gonzalez Saggio &
Harlans Milwaukee office as an associate in the labor
and employment group.

AGC hires Jurowski as


general counsel
The Associated General Contractors of Greater
Milwaukee has announced the addition of Nathan
Jurowski to the association staff as the new AGC
general counsel.
Among his responsibilities will be to head AGCs
negotiation team and manage all labor relations and
contract administration.
Jurowski was formerly with the law firm of Rizzo and
Diersen S.C. He graduated from the William Mitchell
College of Law and received his bachelors degree from
the University of Wisconsin-Eau Claire.

Brenner

Cameli

and nationally, in the recently released 2016 Best Law


Firms listings.

Probst opens new


Wauwatosa office
Jane Probst, a 1990 Marquette graduate, has
opened Probst Law Office at 1011 N. Mayfair Road,
Suite 203, Wauwatosa.
Marquette 2015 graduate Kelsey Burazin has joined
the firm as an associate attorney.
The firm will continue to practice primarily in the
areas of family law, divorce, custody placement, child
support, grandparent rights, paternity, guardianships,
termination of parental rights, adoption and equine law.

Horizons Law Group


launches student loan
defense practice
Horizons Law Group has
launched a new, unique
practice for student loan
defense, led by an experienced
bankruptcy attorney.
Laurie Bigsby has more
than 20 years experience
representing clients in personal
Bigsby
finance matters, including
Chapter 7 and 13 bankruptcy
cases, and administration of probate cases. Her student
loan solutions practice was launched in response to
$1.2 trillion in student loan debt hanging over the
nations economy.

GRGB has attorneys named


Super Lawyers

Hansen

Peterson

Reinhart earns
nationwide
honors
Reinhart Boerner Van
Deuren s.c has received
Benchmark Litigation 2016s
highest honor being named
Schlinsog
a highly recommended law
firm. The publication also recognized attorneys Laura
Brenner, Mark Cameli, Scott Hansen, David Peterson
and Allen Schlinsog Jr.
Reinhart also had 46 attorneys recognized as 2015
Wisconsin Super Lawyers and 19 recognized as Super
Lawyers Rising Stars.
Also, U.S. News Best Lawyers highly ranks
Reinhart in numerous practice areas, within Wisconsin

44

Gimbel, Reilly, Guerin & Brown LLP has announced


that nine attorneys from its team have been recognized
as Super Lawyers by Super Lawyer Magazine, including
Thomas Brown, Raymond DallOsto, Franklyn Gimbel,
Joshua Gimbel, Michael Guerin, Kathryn Keppel, Patrick
Knight Richard Reilly and Christopher Strohbehn.
Franklyn Gimbel was also recognized as one of the
top-50 lawyers in Wisconsin, out of a pool of more than
25,000, and one of the top-25 lawyers in Milwaukee,
out of 5,500.
In addition to the Super Lawyers designation, Emily
Lonergan, Jason Luczak, Steven McGaver and Erin
Strohbehn were recognized as Rising Stars.

Quarles & Brady names pro


bono award winners
Quarles & Brady LLP has announced the recipients
of its first Michael Gonring Pro Bono Award. The 2015
inaugural class includes a team of attorneys led by
Emily Feinstein and Leah McNeely, Steven Hunter,
Danny Lewin and Melissa McCord.

DECEMBER 2015 WISCONSIN LAW JOURNAL

The firm is donating $1,000 to nonprofits designated


by each individual honoree. The announcement was
made during National Pro Bono Week. The award is
named in honor of firm partner Michael Gonring.
The team was recognized for its efforts in providing
legal services to domestic violence victims.

Kendall joins Quarles IP


practice group
Elizabeth Kendall has
joined Quarles & Brady in its
Intellectual Property Practice
Group.
She focuses her practice
on patent law, including
prosecuting both design
and utility patents, as well
Kendall
as performing patentability,
infringement, and validity
analyses.
She received her degree from Marquette University
Law School.

WHD lands on Best Law


Firms list
The law firm of Whyte Hirschboeck Dudek S.C. has
announced that 28 of its practice areas have received
national and/or local recognition in the U.S. News Best
Lawyers 2016 Best Law Firms rankings.
The Best Law Firms rankings, which are presented
in tiers, include more than 12,000 law firms. National
rankings cover 74 practice areas, while as many as 122
practice areas are covered in the metropolitan lists.
WHD received national recognition in the following
areas: Bankruptcy and Creditor Debtor Rights/
Insolvency and Reorganization Law; Litigation Real
Estate; Litigation Tax; Mass Tort Litigation/Class
Actions Defendants; and Tax Law.
Also, 26 of the firms lawyers have been named
to the Wisconsin Super Lawyers list. Additionally,
11 WHD lawyers have been named to the Wisconsin
Rising Stars list.

Ogletree Deakins named a


Law Firm of the Year
Ogletree, Deakins, Nash, Smoak & Stewart P.C. has
announced that the firm has been named a Law Firm
of the Year for the fifth consecutive year in the 2016
edition of the U.S. News Best Lawyers Best Law
Firms list.
Ogletree Deakins is named the Law Firm of the Year
in the Employment Law Management category.
Additionally, Ogletree Deakins Milwaukee office
earned metropolitan First Tier practice area rankings
in the Litigation - Labor & Employment category.
Nationally, the firm maintained its First Tier practice
area rankings in six categories: Employee Benefits
Law; Employment Law - Management; Immigration

www.wislawjournal.com

People and Places


Law; Labor Law - Management; Litigation - Labor &
Employment; and Construction Law.
Earlier, 188 of the firms attorneys were selected by
their peers for inclusion in The Best Lawyers in America
2016. Many earned recognition in multiple categories
147 were named under the Employment Law Management category; 101 were named under the Labor
Law - Management category; and 111 were named under
the Litigation - Labor and Employment category.

addition of associate Andrew Bezouska to its Employee


Benefits, Labor & Employment, Tax and Corporate Practice
Groups. He will be based in the firms Madison office.
Bezouska has more than 10 years of law firm
experience. He earned his degree from Marquette
University Law School.

26 Quarles attorneys
named Super Lawyers

Quarles & Brady LLP has announced that it received


a perfect score of 100 percent on the 2016 Corporate
Equality Index, a national benchmarking survey and
report on corporate policies and practices related to LGBT
workplace equality, administered by the Human Rights
Campaign Foundation. The firm joins the ranks of 407
major U.S. businesses that also earned top marks this year.
This is the firms second consecutive year of a perfect
score from the HRC, said George Marek, Quarles &
Brady partner and LGBT Affinity Group leader. We are
once again extremely honored to be recognized for our
continued commitment to diversity and inclusion.
The 2016 CEI rated 1,027 businesses in the report,

Quarles & Brady has announced that 26 attorneys


from the firms Milwaukee office have been named by
Wisconsin Super Lawyers magazine as among the top
attorneys in Wisconsin for 2015. Additionally, 13 attorneys
were named to the 2015 Wisconsin Rising Stars list.

DeWitt adds Bezouskato


Madison office
DeWitt Ross & Stevens S.C., and its affiliate DeWitt
Mackall Crounse & Moore S.C., have announced the

ANXIETY, continued from page 43


Albert said.
Unfortunately, the same traits that make
attorneys particularly well-suited for coping
with these types of pressures can also drive
them to ignore signs that they have reached
their limits.
Attorneys tend to push themselves and be
high achievers and perfectionists, so you can
see where that might also push the scale in
terms of anxiety, Albert said.
Watson agreed. Several attorneys have said
their instinct, when theyre falling behind or
theyre overwhelmed, is to work harder. But that
becomes a vicious cycle. Its almost like the rat
on the wheel; the harder they run, the faster that
wheel goes and, pretty soon, its disaster.
Often the effects can be seen in the
chemicals the body produces. Many times
they will appear in increasing levels of stress
hormones, such as cortisol, which is tied to
the fight-or-flight response.
If someone doesnt intervene at that point,
decision-making can be impaired, Albert
said. The important thing is its very treatable, if people take the time and its worth
taking the time to learn the techniques to
manage anxiety.
For some, that might mean changing what
theyre doing to how theyre thinking about it.

www.wislawjournal.com

Quarles earns top marks in


Corporate Equality Index

If theyve piled up a lot of stuff, if theyve


overbooked, think about, What can I do
tomorrow? What can wait? Because, if you
think, Ive got too much to do. Ill never get
this done, that can trigger the cascade.
Simple breathing exercises can also help.
I tell attorneys, As youre going up
the courthouse steps, start focusing on
your breathing, clear out your mind. Thats
where you can have some level of control

Several attorneys have said


their instinct, when theyre
falling behind or theyre
overwhelmed, is to work
harder. But that becomes
a vicious cycle. Its almost
like the rat on the wheel; the
harder they run, the faster
that wheel goes and, pretty
soon, its disaster.

Tom Watson

Wisconsin Lawyers Mutual Insurance Co.


senior vice president
DECEMBER 2015 WISCONSIN LAW JOURNAL

which evaluates LGBT-related policies and practices,


including non-discrimination workplace protections,
domestic partner benefits, transgender-inclusive
health care benefits, competency programs, and public
engagement with the LGBT community. Quarles &
Bradys efforts in satisfying all of the CEIs criteria
results in a 100 percent ranking and the designation as
a Best Place to Work for LGBT Equality.

Bell Giftos adds Kevin


St. John
Bell Giftos LLC has announced the addition of its
newest partner, Kevin St. John. Named a Leader in
the Law by the Wisconsin Law Journal, St. John is a
seasoned litigator and proven problem-solver.
St. John was formerly Wisconsins Deputy Attorney
General. He was responsible for the executive
oversight and management of about 100 lawyers. Since
concluding his government service earlier this year, St.
John has been operating St. John Law LLC.
St. Johns practice with the firm will primarily focus
on litigation and appellate advocacy.

because the external world is just not going


to slow down.
Others find help in calendar alerts, which
can send pre-programmed reminders for attorneys to check in with themselves.
Anything that cues you to pay attention
to yourself, not your achievements and your
productivity, but your mind and your body,
because thats the thing thats going to give
you messages about how youre doing.
If all that seems a little silly to the average
attorney, Albert said, consider this: People
can be more productive when their self-awareness is better.
Its about awareness, Albert added. Its
about checking in with yourself and putting
yourself in the question of your life.
Whatever their motivation, attorneys should
not ignore anxiety, he said.
Again, Watson agreed.
Its a critical part of practice and a critical
part of being a good lawyer and a critical part of
providing good service to your clients, because if
youre not in a good place, youre not going to be
able to provide excellent service to your clients
and, ultimately, thats what youre trying to do.
Unfortunately, he said, its something
lawyers often overlook. They look at, How do I
deal with these files? What do I have to do for
this case? And managing stress and anxiety is
often at the bottom of the list.

45

Closing Arguments
INACTION ANY DAY OVER PARTISAN
WITCH HUNTS

QUESTION:
Is the breaking up of the GAB justified?

PHOTO CREDIT: NIENHUIS PHOTOS

Will the breaking up of the states Government Accountability Board into two agencies controlled
he idea behind the GAB turning
mostly by representatives of the main political parties result in nothing more than gridlock and inaction?
the administration of elections
and campaign finance over to a
Our first columnist this month argues, that even if thats the case, those outcomes will be better
than the political witch hunts that critics contend the GAB was able to indulge in under ostensibly
nonpartisan group of judges had
nonpartisan overseers. In other words, if inaction is the price of preventing the agencies of
merit. But an idea, in order to be shown
government from being used for political purposes, so bet it.
to be good, must eventually withstand
The same columnist Rick Esenberg, president and general counsel of the Wisconsin Institute
the test of experience.
of Law & Liberty also provides the starting point for the second Closing Arguments article this
The second Doe investigation was
month. In a piece that appeared Nov. 2 on the conservative news outlet Right Wisconsin, Esenberg
implied that journalists are being hypocritical when they argue that politicians should not be
facilitated by the GAB at the instigation
allowed to keep the names of campaign donors secret and then go on to vigorously defend their
of the Milwaukee County District
right to cite anonymous sources.
Attorney. Whatever the DAs motives, his
The piece, entitled What the Press Doesnt Get about Freedom of Speech, caused quite a
membership in one particular political
stir, especially since it came around the same time that Republican lawmakers were voting for
party cannot be overlooked.
legislation that will prevent them and other politicians from having to disclose the names of donors
on official documents. Brendan Fischer, general counsel at the Center for Media and Democracy,
The states former John Doe law
argues this month that Esenbergs arguments fail to take into account important differences and,
allowed him to launch an investigation
in doing so, lead to a false comparison.
into almost the entire political
Now, gentlemen, to your corners.
infrastructure of the opposing party.
From the beginning, the hypothesis the
no matter the good intentions behind the agency,
DA was working with was beset by flaws. This is
then it was in desperate need of reform.
evident in the fact that every court that has reached
From our current vantage point, its easy to see
the merits of the prosecutors view of the laws
that this type of misadventure was likely from the
scope has ruled against it.
beginning. Retired judges have usually stopped
Even if GAB officials and
working for a reason and could have been expected
prosecutors thought that these
to be willing to spend only so much time on their
flaws could be overcome, they
duties related to the GAB. Judges, moreover, are
should have understood them. They
by their disposition and experience used to ruling in
should have appreciated the danger
response only to what others have brought before
to freedom of expression entailed
them. This tendency made it likely that the board
Rick Esenberg
by aggressive criminal investigations
would be highly dependent on staff.
of political activity and tempered
The GAB staff, even under the best of
their prosecutorial zeal accordingly.
circumstances,
was likely to have its own biases.
But they did not. The nature of their suspicions
Regulators, for example, generally like to regulate. If
might have led to a civil investigation, but they
partisan bias is introduced to the mix and there is
instead pursued a criminal one. They cast a
some very uncomfortable evidence emerging that it
broad round up the usual suspects net in an
may have been youve got the potential for disaster.
extraordinarily aggressive way using predawn
And disaster is precisely what happened.
raids that are not the normal stuff of campaignThe current plan to return to a board with a
finance law. They accompanied these unusual steps
calculated
partisan balance has its own flaws. The
by another one a gag order that prevented those
board, for instance, may fail to act when it should.
who were targeted from telling anyone but their
But when it comes to the regulation of speech, I
own lawyer what was being done to them.
would prefer inaction to action that targets protected
Nevertheless, those targets knew that the
expression. I would prefer a truce between partisans
investigation, like the first and largely ineffectual
even one that is rooted in deadlock to the potential
Doe investigation, was likely to be beset by leaks.
for partisans to use regulation as a political weapon.
If the goal was to send a chilling message to
advocacy groups throughout the state, this was the
Rick Esenberg is president and general counsel
way to do it. If this was the actual fruits of the GAB,
of the Wisconsin Institute for Law & Liberty.
46

DECEMBER 2015 WISCONSIN LAW JOURNAL

www.wislawjournal.com

Closing Arguments

ANONYMOUS CAMPAIGN DONORS IN NO WAY LIKE


REPORTERS ANONYMOUS SOURCES

n the subject of campaign finance and


a reporters supposed right to protect
sources, these two issues are not even in
the same territory.
The overarching purpose of requiring disclosure
of campaign finances is to prevent corruption as
much as possible. Mandatory disclosure of the
sources of a politicians financial support helps
the press and public track whether big donors are
improperly influencing elected officials.
Giving the public the means of connecting the
dots between big contributions and political favors
can also help deter bad behavior in the first place.
As U.S. Supreme Court Justice Louis Brandeis
once wrote, Sunlight is said to be the best of
disinfectants.
Reporters, in contrast, rely on a source who
insists on anonymity when the facts may not get
out otherwise. The anonymous source Deep
Throat, for example, helped break the Watergate
scandal and led to revelations that secret donations
were secretly buying influence in Richard Nixons
White House, which had used a slush fund to raise
and spend money in partisan elections.
Another way of looking at this issue is to assess
who bears the risk in each situation.
An anonymous source poses a risk to the news
outlet that relies on that source. If the information
turns out to be untrue, it will undermine the
credibility and trustworthiness of the news outlet.
Some sources may wish to stay anonymous
because the person or corporation they are
exposing is extremely powerful. But others may
want to stay anonymous to spread false rumors.
Journalists know that they are putting their

www.wislawjournal.com

credibility on the line when they rely on anonymous


sources, which is why they usually verify the facts
from the source through other means.
In contrast, the risk posed by anonymous political
contributions is to the integrity of our democracy
as a whole. Secret cash can lead to closed-door,
backroom pay-to-play schemes being hatched
without public knowledge. It can result in big donors
holding undue influence over our elected officials
without any chance for public scrutiny.
Journalists put their own credibility on the line
when relying on an anonymous source, but that
isnt the case with politiciansin fact, it is quite the
opposite.
Anonymous donations pose less risk to an
individual politician than a disclosed contribution,
because the politician wont face public criticism if
he or she later provides special treatment to that
donor, or if the donor turns out to be an unsavory
individual.
This underscores the grave flaws in the notion
that money is indistinguishable from speech.
There is always a risk that information from an
anonymous source will be unreliable.
In contrast, there is never a risk that a politician
will be unable to cash an anonymous donors check.
Likewise, words and information will hardly lead
to corruptionyet money certainly can. There is no
real chance of anonymous sources corrupting the
press. Yet limiting disclosure and failing to enforce
reasonable limits on candidate
coordination with secretly funded
political groups will breed a climate
of corruption in this state.
Brendan Fischer is general counsel
for the Center for Media and
Democracy, a group that often takes
up liberal causes.
Brendan Fischer

DECEMBER 2015 WISCONSIN LAW JOURNAL

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