Richard S. Brown

This case concerned the authority of the Wisconsin Department of Natural Resources (DNR) to consider the public trust doctrine when approving permits for high-capacity wells that could impact nearby navigable waters, specifically Well #7 proposed by the Village of East Troy near Lake Beulah. The court held that the DNR has discretion to consider potential environmental effects on waters of the state in deciding whether to approve, condition, or deny such permits for intermediate wells, but that the DNR failed to properly exercise this discretion in this instance by not adequately investigating possible adverse effects. The reasoning was that general statutes provide the DNR with flexibility to evaluate environmental impacts, which aligns with the public trust doctrine's protection of navigable waters, and there is no statutory conflict limiting this authority for wells consuming between 100,000 and 2,000,000 gallons per day.

environmentbusiness & regulatoryprocedure

The case involved a challenge to a fourth-offense prohibited alcohol concentration (PAC) charge against Brian Sowatzke following his May 2008 arrest. At the time of the arrest, Sowatzke had two prior OWI convictions, making his legal BAC limit 0.08 percent, and his measured BAC was 0.048 percent. After additional convictions were entered, the State amended the complaint to allege a fourth offense, which would have lowered the applicable PAC limit to 0.02 percent. The circuit court dismissed the PAC count, and the Court of Appeals affirmed on statutory grounds, holding that Wisconsin's graduated PAC statute requires the prohibited concentration to be assessed based on the number of countable prior convictions existing at the time of the alleged offense.

criminal lawprocedure

The case involved a patient suing his surgeon and surgery center for medical malpractice, alleging failure to inform him of a final pathology report showing his neck tumor was cancerous and recommending follow-up care, after the tumor recurred years later. The circuit court granted summary judgment dismissing the 2008 complaint as time-barred under Wisconsin's five-year medical malpractice statute of repose, Wis. Stat. § 893.55(1m)(b). The Court of Appeals affirmed, concluding that the claim was filed well beyond five years after the 2000 omission and that the plaintiff did not establish facts triggering the concealment exception under § 893.55(2). The court reasoned that the statute of repose extinguishes the right of recovery after the repose period regardless of discovery, and any alleged concealment did not meet the requirements to extend the deadline.

healthcareproceduretorts & liability

This case involves post-remand proceedings in the 2006 divorce of Daniel and Judith Ladwig, focusing on determinations of maintenance and child support. The appellate court affirmed the remand court's decision to increase both awards based on its independent review of the existing record, including credibility assessments, as permitted by the parties' stipulation. It also upheld the overall exercise of discretion in setting the amounts to meet support and fairness objectives under Wisconsin law. However, the court reversed the remand court's reduction of Daniel's child support obligation by $65,000 to offset amounts spent on Judith's daughter from a prior marriage, holding that such an adjustment must instead be addressed through maintenance or property division rather than altering statutory child support. The matter was remanded for adjustments on that issue and for further consideration of tax implications.

family law

This case involves a civil lawsuit by Kalvin Loppnow against Steven Bielik arising from a physical altercation in which Loppnow was injured. After Bielik moved to Florida, Loppnow made multiple attempts to serve process, including database searches, hiring investigators, subpoenas to Bielik's parents, and publication in a Florida newspaper. The trial court granted summary judgment to Bielik and dismissed the action with prejudice, finding that Loppnow failed to exercise reasonable diligence in serving process under Wis. Stat. § 801.11(1)(c). The appellate court reversed, concluding that the undisputed facts demonstrated Loppnow had exercised reasonable diligence in attempting to locate and serve Bielik.

proceduretorts & liability

The case concerned whether the defendant's Sixth Amendment right to counsel was violated by the admission of incriminating statements he made to his jailhouse cellmate after being charged with multiple counts of armed robbery, false imprisonment, reckless endangerment, and firearm possession. The cellmate, who had signed a federal proffer agreement a year earlier in an unrelated drug case, testified about the defendant's account of the crimes without any promise of consideration from state authorities or ongoing instructions from law enforcement. The court held that the prior proffer did not create an agency relationship for this case because it lacked evidence of a formal continuing agreement or governmental control, so the statements were not deliberately elicited by a state agent and were properly admitted at trial. The convictions on all counts were therefore affirmed. A separate claim regarding jury instructions about dismissed counts was deemed waived due to lack of objection.

criminal lawprocedure