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

This case concerned Mitchell D. Pask's conviction for child enticement under Wis. Stat. § 948.07, based on evidence that he attempted to lure a nine-year-old girl to a park shelter area with candy for the purpose of sexual contact. The central issue on appeal was the proper meaning of the statutory term "secluded place," which the trial court had instructed the jury meant "a place screened or hidden from view or remote from others." Pask argued via an ineffective assistance of counsel claim that the term required a location completely blocked from view or access. The court concluded that the statute aims to prevent removal of a child from public protection, so a partially screened or hidden location qualifies, and the jury instruction was narrower than required and thus beneficial to the defendant. The court therefore found no deficient performance by counsel, determined the evidence was sufficient, and affirmed the conviction.

criminal law

The case involved Benjamin Mercer, who was charged with fourteen counts of possession of child pornography under Wis. Stat. § 948.12(1m) for viewing such images on the Internet via his work computer. The court affirmed the conviction, holding that there was sufficient evidence for the jury to find knowing possession even though the images were not recovered from Mercer's hard drive. The core reasoning was that prior cases do not impose a requirement for images to be stored on a hard drive; instead, the statute is satisfied when a defendant affirmatively seeks out and obtains child pornography images while having the ability to control them, as shown by the monitoring software logs of Mercer's repeated searches and navigation to the relevant websites.

criminal law

The case involved two patients civilly committed under Wis. Stat. ch. 980 at the Wisconsin Resource Center who challenged, via writ of certiorari, the warden's reduction of their therapeutic work program wages below the federal minimum wage, claiming violations of facility policy, Wis. Stat. § 51.61(1)(b), the Wisconsin Administrative Code, and due process. The circuit court quashed the writ and dismissed the petition, and the Court of Appeals affirmed. The court held that ch. 980 patients are not "employees" covered by the FLSA or Wisconsin minimum wage law, relying on Seventh Circuit precedent establishing that neither prisoners nor civilly committed persons in secure facilities qualify as employees under the FLSA's definitions, and interpreting Wisconsin statutes as not extending minimum wage rights to these patients. The court further found no violation of internal policies after reviewing the updated handbook and related documents.

labor & employmentcivil rights

Allen Goudy purchased a new Yamaha motorcycle that had been modified by dealer Winnebagoland with over forty aftermarket accessory parts and soon experienced mechanical problems. He sued Yamaha and Winnebagoland for breach of warranties under state and federal law, revocation of acceptance, breach of contract, violations of Wisconsin's Lemon Law, and violations of the Deceptive Trade Practices Act after warranty claims were denied because the modifications were not covered. The trial court granted summary judgment to both defendants on all claims. The appellate court affirmed on every issue except the § 100.18 claim against Winnebagoland, concluding that Goudy could proceed on the theory that the dealer failed to disclose the modifications and their effect on warranty coverage, and remanded for further proceedings.

business & regulatory

In State v. Barfell, the defendant appealed his 2008 burglary sentencing after pleading no contest, arguing that the circuit court erred by failing to consider or note on the record the then-applicable sentencing guidelines as required by Wis. Stat. § 973.017(2)(a) under State v. Grady. While the appeal was pending, the legislature repealed that statute effective July 1, 2009. The court affirmed the judgment, holding that the repeal is a procedural change that applies retroactively to pending cases, so Barfell is not entitled to resentencing where guidelines would no longer be considered. It rejected arguments based on Wis. Stat. § 990.04 preserving rights of action, non-retroactivity of substantive changes, and ex post facto protections, because the guidelines statute concerned sentencing procedure rather than substantive rights or accuracy of information used at sentencing.

criminal lawprocedure

The case concerned whether a defendant held on an Illinois parole warrant should receive Wisconsin sentence credit for 285 days spent in presentence confinement in a Kenosha County jail. The trial court denied credit, citing the possibility that Illinois might later grant credit for the same period and create double credit. The Court of Appeals reversed, concluding that Wisconsin must award credit because it is the only sentence presently in effect and the double-credit issue is not ripe until Illinois actually revokes parole and acts. The court reasoned that denying credit risks the defendant receiving none at all if Illinois never proceeds, contrary to Wis. Stat. § 973.155(1).

criminal lawprocedure

This case involved charges against Clifford D. Bvocik for using a computer to facilitate a meeting with a person he believed to be a 14-year-old girl for sexual purposes, in violation of Wis. Stat. § 948.075. The communications began with a 28-year-old woman who falsely claimed to be underage on an adult website, after which police took over the persona to arrange a meeting, leading to Bvocik's arrest. The court reversed the conviction and remanded in the interest of justice, holding that the prosecutor's closing argument improperly invited the jury to infer the individual was actually 14 despite knowing this was untrue, which misled the jury on the central issue of whether Bvocik had reason to believe she was a minor, consistent with the precedent in State v. Weiss.

criminal law

In State v. Garcia, the defendant appealed his convictions for substantial battery and criminal trespass after a jury trial in which he did not testify and the circuit court failed to conduct an on-the-record colloquy to confirm a knowing waiver of the right to testify, as required by State v. Weed. Garcia sought a new trial based on the omission, but the circuit court instead held a postconviction evidentiary hearing at which it heard testimony from Garcia and his attorneys, found that he had knowingly, voluntarily, and intelligently waived the right after consultation, and denied the motion. On appeal, the court agreed the colloquy was mandatory but concluded that a postconviction hearing was the proper remedy to determine the validity of the waiver, following the approach used for other fundamental rights such as jury trial waivers. The appellate court affirmed the judgments and order after reviewing the hearing evidence and determining that the waiver was valid.

criminal lawprocedure

The case involved Jeffrey A.W., who was convicted by a jury of repeated sexual assault of his three-year-old daughter based on her later testimony that she had contracted genital herpes from him as the only person with whom she had sexual contact. After trial, Jeffrey obtained negative herpes test results showing he did not have the virus, along with expert testimony on the test's high accuracy, which the prosecution had highlighted as absent during closing arguments to attack his credibility. The court reversed the conviction and remanded for a new trial in the interest of justice under Wis. Stat. § 752.35, determining that the jury had not heard critical evidence on a central credibility issue that was available but not presented at trial. The reasoning focused on the fact that the real controversy—whether Jeffrey had herpes—was not fully tried due to the absence of this exculpatory evidence.

criminal law

The case involved Benjamin Mercer, the former human resources director for the City of Fond du Lac, who sued the city, its council members, and city manager after resigning from his position. Mercer alleged wrongful termination and related claims stemming from an investigation into his use of a work computer to view pornography, which later led to criminal charges for possession of child pornography. The court granted summary judgment to the defendants, concluding that Mercer had voluntarily resigned rather than being terminated, which undermined his claims of breach of contract, civil rights violations, and other issues. Additionally, the court upheld an award of costs to the city for internal photocopying expenses under Wisconsin statute, finding that such costs were recoverable even without involving a third party.

labor & employmentcivil rightsprocedure

The case involved former insurance agents who sued Country Insurance for breach of their Agent's Agreements by refusing to pay termination commissions, asserting that a separate settlement agreement and release barred Country from raising defenses to those claims. Country moved to compel arbitration under a broad mandatory arbitration clause in the Agent's Agreements that covered any claims relating to the agency relationship, the agreements, or their termination. The trial court denied the motion, concluding that the settlement agreement without an arbitration provision governed the dispute and superseded the arbitration clause. The appellate court reversed and ordered arbitration, reasoning that the claims for commissions arose squarely under the Agent's Agreements so that the scope and effect of the release were questions for the arbitrator to decide.

business & regulatorylabor & employmentprocedure

This case arose from Alexander Shister's purchase of a home from Bipin and Ranjan Patel, where Shister alleged that the Patels and their real estate broker failed to disclose an unpermitted basement remodel and a pending property tax reassessment that later increased the assessed value and taxes. Shister brought claims including breach of professional duties and misrepresentation against the broker and her employer, seeking damages for permit costs and higher taxes. The trial court granted summary judgment to the broker defendants, ruling that the economic loss doctrine barred the tort claims and that tax-related damages were too speculative. On appeal, the court reversed, concluding that the economic loss doctrine does not bar the tort claims against the broker and that Shister had presented sufficient evidence to raise a genuine issue of material fact on the tax damages.

propertytorts & liabilitytaxes

This case involves an appeal from circuit court orders appointing a guardian of the person and estate for Genevieve M. under Wis. Stat. ch. 54 and ordering her protective placement under Wis. Stat. ch. 55. The Wisconsin Court of Appeals addressed whether such an appeal, which combines both types of orders decided together in the trial court, must be heard by a three-judge panel or a single judge. The court held that a three-judge panel is required. Its reasoning was that Wis. Stat. § 752.31(1) establishes a default rule of three-judge panels for all appeals, with the single-judge exception for ch. 55 matters in § 752.31(2)(d) and (3) to be strictly construed; when an appeal includes a ch. 54 guardianship order alongside protective placement, the general rule controls to avoid inefficiency and ensure uniformity.

procedurefamily law

In State v. Carter, the defendant pled guilty to operating while intoxicated (OWI) and challenged whether two prior Illinois 'zero tolerance' license suspensions for underage alcohol consumption should count as prior convictions under Wisconsin Statute § 343.307, which determines sentencing enhancements for OWI under § 346.65(2). The trial court included the suspensions, treating the case as a fourth offense, but the appeals court reversed. The court held that the suspensions did not qualify as convictions under subsection (1)(d) because Illinois zero tolerance laws involve administrative actions without requiring a finding of guilt or impairment equivalent to DUI, and they did not arise from a refusal to submit to chemical testing under subsection (1)(e). The decision was based on statutory interpretation of the Wisconsin counting provisions and distinctions in Illinois law between zero tolerance suspensions and standard DUI proceedings. The case was remanded for sentencing as a second offense.

criminal law