Wisconsin Law Journal - August 2015

VOLUME29 | NUMBER8
AUGUST 2015
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Meet Our Newest Team Members

Sherry D. Coley
Sherry Coley has joined the firms Litigation Team, in its Green Bay and Oshkosh
offices, with a focus on complex financial services litigation and product liability. During her
12 years of practice, Sherry has earned significant trial experience in both state and federal
courts and jury trials representing clients in appeals pending in the state appellate courts
of Wisconsin and the United States Court of Appeals for the Seventh Circuit. In the area
of product liability, she has represented manufacturers in actions involving personal injury,
wrongful death and property damage. Additionally, she has represented financial institutions
in state and federal court on a variety of commercial lending disputes, including defense of
counterclaims raised in response to foreclosure or deficiency actions, and disputes arising
from insolvent borrowers, including proceedings in bankruptcy court. Since 2009, Sherry
has been selected as a Wisconsin Rising Star by Super Lawyers Magazine. She earned
her Juris Doctorate from Marquette University Law School, and her Bachelors degree from
Drake University, magna cum laude. Prior to joining Davis & Kuelthau, Sherry practiced with
a nationally known law firm in Green Bay.
Hugo P. Rojas
Hugo Rojas, Milwaukee, has joined the firms Immigration and Labor &
Employment Teams. Hugo focuses his practice on advising employers on strategies
for navigating the complex regulations of the U.S. immigration system while seeking a
path for permanent residency for their multinational workforce. He assists and advises
businesses with every phase of the employment-based immigration process to help
employers meet their objective of building a talented workforce in Wisconsin and
beyond. Hugos clients include mid-large sized global manufacturers, engineering firms,
financial services institutions, health care providers, IT firms, and school and higher
education institutions. Hugo earned his Juris Doctorate from University of
Wisconsin Law School and received his Bachelor of Science Degree in Business
Administration from the University of Southern California. Prior to joining Davis &
Kuelthau, Hugo worked at a nationally known minority-owned law firm in Milwaukee.
Anthony S. Wachewicz, III

Anthony Wachewicz, III has joined the firms Labor & Employment Team in its
Green Bay office. Tony has significant experience working in both the public and private
sectors. Prior to joining Davis & Kuelthau, he served as the City of Green Bays Assistant
City Attorney in 2008, the City Attorney in 2011, and most recently as a staff attorney for
Prevea Health. Tony will concentrate his practice on serving the firms business, municipal,
and education clients on labor & employment matters across Wisconsin. His services will
include representing employers in wage and hour matters, internal employee investigations,
labor negotiations, discrimination defense, disability and ADA issues, wrongful discharge or
employment contract disputes, and other sensitive personnel transactions. He received his
Juris Doctorate from William Mitchell College of Law and his Bachelor of Science degree,
cum laude, from the University of Wisconsin-Eau Claire.
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August 2015 Volume 29, No. 8
CONTENTS
10 Disciplinary Actions
STAFF PHOTO BY KEVIN HARNACK
14 Bench Blog

Courts deciding when open-records can include
personal notes
17 Commentary
Backdating scheme fells New York law firm
Doubling down on failed attempts at controlling
gun violence
20
26 Case Digests
Attorneys uneasy about using bar dues for political reasons
34 Verdicts & Settlements
BAR TAB
40 People and Places

Whos Doing What
42 Closing arguments

Lawyers debate the case for same-sex marriage
38
JOHN DOE RULING
RECORDING TECHNOLOGY
Ruling may reshape search and campaign

finance laws
Man vs machine in the courtroom
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News & Views
What the John Doe ruling means

Challenge to Walker probe may reshape search, campaign finance laws
Quite frankly, the U.S.

Supreme Court did
uphold a campaignfinance restriction
this last term, so the
idea that the First
Amendment blows
a hole through all
campaign finance laws
is not correct.
MIKE BURLEY/TELEGRAPH HERALD VIA AP
Wisconsin Gov.ScottWalkeraddresses a crowd in Dubuque, Iowa, on July 19. Walker won a legal victory July
16 when Wisconsins Supreme Court ended a secret investigation into whether he had illegally coordinated with
conservative groups during the 2012 recall election.
Erika Strebel
erika.strebel@wislawjournal.com
The Wisconsin Supreme Courts order

closing an investigation that had threatened
to ensnare Gov. Scott Walker upholds the
states John Doe law but could encourage
more defense lawyers to challenge search
warrants.
The three cases the court decided July 16
stem from a special investigation into whether
Walkers campaign violated campaign-finance
laws when working with conservative groups
to win his 2012 recall election.
The decision not only ended an
investigation that had lasted for years, but
also much uncertainty for Walker, who is
running for president.
No one had been charged in the probe,
but it had nonetheless cast a shadow over
Walker and his political ambitions. With it
behind him, Walker can now campaign in
early primary states without concern about
possibly damaging revelations.
All this is not to say that the investigation
could not be started again. Prosecutors can
still appeal the state Supreme Courts decision
to the U.S. Supreme Court. But it would be
months before the high court of the land could

rule, if it even agreed to take the case.
Republicans have relied heavily on the
words partisan witch hunt when referring to
the John Doe investigation. They have made
much of the fact that the legal proceedings
were started by Milwaukee County District
Attorney John Chisholm, a Democrat.
The conservative group Wisconsin Club
for Growth and its director, Eric OKeefe,
filed a federal civil rights lawsuit in 2014
seeking to halt the probe, arguing it was
violating their rights of free speech. U.S.
District Judge Rudolph Randa sided with
the club, but a federal appellate court later
tossed out the lawsuit, saying the fight
belonged in state courts.
The club and OKeefe then turned to the
state Supreme Court, which is controlled by a
four-justice conservative majority.
The resulting review was anything but
ordinary.
For one, the lead prosecutor in the case,
Francis Schmitz, asked at least two state
justices Michael Gableman and David
Prosser to rule in the case, noting that the
campaigns of both had benefited greatly from
contributions from conservative groups. The
Ed Fallone
Marquette University law professor
justices responded with silence.
Justice Ann Walsh Bradley was the only
one to recuse herself from the case. She did
so, she said, because her son works for a law
firm involved in the litigation.
Making the proceedings even more
extraordinary, the case became the occasion
for the state Supreme Court to break with
its long-established practice of hearing oral
arguments. Justices cited the secret nature of
John Doe investigations as reason to prevent
certain facts and arguments from receiving a
public airing.
Chipping away at search warrants
In her concurring opinion, Justice Annette
Ziegler wrote that even though a particular
search warrant might have been lawfully
issued, its execution could still be subject to
scrutiny under the Fourth Amendment and
Wisconsin Constitution.
I also recognize that the State might have
had a legitimate reason for executing the
search warrants pre-dawn in paramilitary
fashion, she wrote.
Ziegler went on to say that the courts
John Doe Ruling, continued on page 8
News & Views
John Doe Ruling, continued from page 7

scrutiny of a particular search warrant could
consider the time when it was executed, the
type of evidence that was being sought and any
accompanying steps taken to protect the safety
of both the public and officers of the law.
Ed Fallone, professor at Marquette
University, predicts that the state Supreme
Courts ruling in the John Doe case will lead
defense lawyers to more frequently challenge
evidence obtained from search warrants.
Justice Zieglers concurrence was the most
surprisingly restrictive on search warrants, he
said, noting that the majority opinion made no
move to distance itself from it.
Zieglers concurrence could have farreaching effects because the rules governing
the execution of search warrants depend
mostly on interpretations handed down by
state and federal courts.
The current rules call for a person to at
least knock and announce his presence,
although officers can get a warrant allowing
a no-knock entry and the use of force, said
David Schultz, a University of Wisconsin law
professor.
The rules of execution come from the
Fourth Amendment as the state and U.S.
Supreme Courts have interpreted it, he said.
Even those mentioned in Wisconsin statues
are interpreted based on how the courts have
interpreted the Fourth Amendment.
Schultz said evidence obtained from
search warrants is usually tougher for
defense lawyers to challenge in court
because law-enforcement officials cannot
get a warrant without convincing a
judge that they have probable cause. If

prosecution follows a search, most defense
attorneys, he said, resort to filing a motion
calling for the suppression of any evidence
that was obtained without a search warrant.
Motions to suppress are usually made on
the grounds that there was no probable
cause or that false statements were made in
a warrant application.
Motions to suppress are very common,
Schultz said, but are not often successful
when a warrant is involved.
Julius Kim, a criminal defense attorney
who was once an assistant district attorney
in Milwaukee County, said defense lawyers
typically challenge evidence that was obtained
using a search warrant by questioning
whether there were grounds for the warrant
to be issued in the first place.
Although challenging search warrants is
fairly common, theyre difficult challenges to
win, said Kim. The law regarding search
warrants is pretty well developed and the
good-faith exception forgives many of the
perceived wrongs raised by attorneys.
Zieglers concurrence, he said, suggests
that warrants may be challenged on the back
end by arguing that they were executed in an
unreasonable way.
In other words, how a search warrant is
executed matters, Kim said, and Justice
Zieglers words may open up further avenues
to challenge search warrants down the line.
Doing an about-face on campaign finance
laws
The discussion of search warrants is just part
of the 388-page decision the state Supreme
The rules of execution

come from the
Fourth Amendment
as the state and U.S.
Supreme Courts have
interpreted it. Even
those mentioned in
Wisconsin statues are
interpreted based on
how the courts have
interpreted the Fourth
Amendment.
David Schultz
University of Wisconsin law professor
Court handed down in the John Doe case.
Search procedures aside, the main thrust
of the majority of the state Supreme Court
justices ruling was that the Wisconsin Club
for Growths and other conservative groups
collaboration with Walker was protected as
free speech under the First Amendment.
The justices in the majority argued those
protections trumped the states campaignfinance laws.
In short, the special prosecutor
completely ignores the command that, when
seeking to regulate issue advocacy groups,
such regulation must be done with narrow
specificity, Justice Michael Gableman wrote.
Justice Shirley Abrahamson took the
majority to task, slamming it for delivering
a faulty interpretation of state campaignfinance law and the First Amendment.
Disregarding the statutory text that the
majority opinion professes to interpret,
the majority opinion takes theabsolutist
position that Chapter 11 does not reach
any issue advocacy, she wrote, and that
any manner of government regulation of
any issue advocacy contravenes the First
Amendment.Thus, within the realm of issue
advocacy, the majority opinions theme is
Anything Goes.
Fallone, agreeing with points that

Abrahamson made, argued that the courts
ruling concerning the states campaignfinance laws did not rely on settled precedent.
Quite frankly, the U.S. Supreme Court
did uphold a campaign-finance restriction
this last term, so the idea that the First
Amendment blows a hole through all
campaign finance laws is not correct,
he said.
Similar points were made by the states
Government Accountability Board, which is
charged with upholding various election laws. In
a statement released July 16, the board argued
that the decision in the John Doe case reverses
a long-standing interpretation of campaign
finance law going back to the U.S. Supreme
Courts 1976 decision in Buckley v. Valeo.
The Government Accountability Board
contended that the John Doe decision
furthermore reverses a 1999 state Court of
Appeal decision that had backed that previous
interpretation.
Keeping Doe whole

In the majority opinion, Gableman took
special care to note the history of the John

Doe proceeding, citing the courts 1889
explanation of its purpose in State v. Keyes.
John Doe proceedings have been utilized
in Wisconsin since it was a territory, he
wrote, and have no doubt served our state
well. But the simple fact that the John Doe
proceeding has a long and near constant
use should not blind us to the potential for
abuse. We must be mindful of the purpose
of the John Doe proceeding and why it was
originally instituted.
It does seem to me that the majority
opinion by Justice Gableman does preserve
the John Doe process and express strong
support for (it), said Fallone.
Even so, the Legislature has before it two
pieces of legislation that are meant to rein
in the John Doe proceedings. To prevent
perceived political abuses, Senate Bill 43 and
Assembly Bill 68 would allow judges to order
John Doe probes only in response to certain
allegations, excluding misconduct in office and
violations of campaign finance and ethics laws.
Temporary and reserve judges would be
prohibited from initiating the proceedings. And
full-time judgescould no longer decide on

their own that secrecy is warranted, but would
instead have to be convinced by compelling
evidence presented by a prosecutor.
The John Doe proceeding is unique to
Wisconsin; no other state has a law that
allows for the secret probes. Its roots stem
from Wisconsins time as a territory and from
common law, which has long relied on grand
juries to check prosecutors power to issue
criminal charges and warrants for arrest.
Those who moved into the territory that
would later become Wisconsin brought with
them a desire to protect citizens right to due
process. The trouble was that there were
often too few settlers in the vast region to
ensure they could always convene a grand
jury when needed.
In Wisconsin, the proceedings were
validated by the state Supreme Court in 1889
and formally spelled out in state statutes in
1949. The John Doe law has undergone only
a few minor changes since then, specifically
in 1989, 1998 and 2009.
The Associated Press also contributed
to this report.
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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
Green Bay attorney faces

18-months suspension
An attorney from Green Bay could see
her license be suspended for 18 months for
participating in a national debt-refinancing
scheme.
An OLR complaint filed June 30 alleges
that Tiffany Luther helped Costa Mesa,
Calif.-based Morgan Drexen, a national
debt-settlement company operating under the
guise of a legal-services provider, operate an
illegal debt-relief scheme in Wisconsin.
The company shut down June 21 during
bankruptcy proceedings, following the federal
governments victory in a lawsuit against it
in May.
Morgan Drexen offered a program that
instructed debtors to stop paying their
creditors and instead put their money in
an account from which Morgan Drexen
paid itself. Once the amount in the account
reached a certain level, Morgan Drexen
would approach creditors with a settlement.
According to court records, Morgan Drexen
made more than $4.2 million in fees while
paying less than $4 million in settlements to
creditors.
The OLR alleges Luther, who joined
Morgan Drexen in 2007, was the only
attorney who provided services to Wisconsin
residents enrolled in that program. Luther,
according to the OLR, let Morgan Drexen use
her law license so that it could do business in
Wisconsin.
The OLR also noted in its complaint that
Luther has represented at least 226 Indiana
residents, although she is not licensed to
practice law in that state.
In October 2011, the state Department of
Financial Institutions Division of Banking
filed a complaint against Morgan Drexen,
alleging it was conducting business in the
state without a license and violating various
administrative rules, including charging
excessive fees and deceiving clients.
In April 2013, an administrative court
judge ordered Morgan Drexen to pay
10
back the more than $4.2 million in fees

the company had charged to more than
1,000 Wisconsin residents. The judge also
ordered Morgan Drexen to pay nearly $2
million in forfeitures for 1,890 violations of
adjustment services laws.
The order was affirmed in both circuit
court and a court of appeals. Morgan
Drexen appealed to the state Supreme Court
on May 1.
In addition to asking the Wisconsin
Supreme Court to suspend Luthers license
for 18 months, the OLR is asking that the
court order her to pay $865 in restitution to
a client.
Court suspends Wausau lawyer

for not working on case
The Wisconsin Supreme Court has
suspended a Wausau attorneys license
for five months for not working on cases
assigned to him by the State Public Defender.
Joseph Kaupies license was suspended
for failing to pay mandatory bar dues and
for not cooperating with an Office of Lawyer
Regulation investigation.
The discipline stems from an OLR
complaint filed in October 2014. According to
the complaint, Kaupie took on cases assigned
to him by the State Public Defender but either
failed to work on them or missed deadlines.
Eventually, the cases were assigned to other
attorneys, and Kaupie was suspended from
taking public-defender cases. The OLR asked
that his license be suspended for six months.
Kaupie and the OLR later reached a
stipulation agreeing that the misconduct
warranted a five month suspension. The
referee agreed to the sanctions, noting that
although Kaupie did prey on vulnerable,
indigent clients, he had no disciplinary
history and had fully admitted to the
misconduct.
The court agreed with the referee and
ordered Kaupie to pay the full costs of the
proceeding, which was $2,309.
Attorney publicly reprimanded for

drunken driving, 11 traffic tickets
The Wisconsin Supreme Court has publicly
reprimanded an attorney for racking up 11
traffic tickets and violating his probation for
a drunken-driving arrest in Minnesota, thus
violating the conditions of his admission to
practice law in both states.
Jordan Galls Wisconsin license had been
suspended for failure to pay dues, failure to
report completion of continuing-education
requirements and for not submitting an
annual trust-account certification. Gall,
according to disciplinary proceedings in
Minnesota, practices in Plymouth, Minn.
However, the office address listed with the
Wisconsin State Bar and Office of Lawyer
Regulation is in Minneapolis.
The discipline handed down July 9
stemmed from an OLR complaint filed
in August 2013 requesting that the court
publicly reprimand Gall as reciprocal
discipline to sanctions imposed by the
Minnesota Supreme Court.
That states Supreme Court publicly
reprimanded Gall in May 2013 and put him
on a two-year disciplinary probation that
requires him to abstain from alcohol, submit
to random drug screening four times a month
and report any citations, charges or arrests
within 72 hours.
According to the OLR complaint, Gall
violated probation on a drunken-driving
conviction and failed to tell the Minnesota
Board of Law Examiners of the violation. He
also was cited for 11 traffic violations from
June 2011 to September 2012. The violations
included two citations for failing to obey a
traffic sign, three speeding citations, one
citation for illegal or improper passing, and
driving with a suspended license three times.
Attorney faces suspension for

giving inmate toothbrush, pepper
A Madison attorney faces a 60-day
News & Views

suspension of his law license after being
accused of giving an inmate supplies to make
pepper spray and makeshift knives, then lying
about his deeds to law-enforcement officials.
Steven Cohen was graduated from the
University of Wisconsin Law School in 1996.
His license is in good standing, according to
the State Bar and Office of Lawyer regulation
websites. Cohen has not previously been
professionally disciplined.
An Office of Lawyer Regulation complaint
filed July 8 stems from a number of Cohens
convictions in Columbia County Circuit Court
and misconduct involving a client.
In February 2014, the Vilas County District
Attorney filed a complaint charging Cohen
with felony delivery of contraband to an
inmate and one misdemeanor count of
resisting or obstructing an officer.
According to court documents, Cohen
met with his client, Ralph Santori, an inmate
at the Columbia Correctional Institution in
Portage, and slipped him toothbrushes and a
container of McCormick crushed red pepper.

When the two were moved to a different
room, Santori threw a bag, which Cohen
alleged was his lunch, into a garbage can.
Prison officials searched the bag, found
an empty toothbrush box, then searched
Santori and his belongings. They found two
toothbrushes and the container of pepper
that Cohen is accused of sneaking into
Santoris legal folder.
The toothbrushes, which were heavier
than those available at the prison to inmates,
could be fashioned into shanks, and the
pepper could be used to make pepper
spray, according to prison officials. When
they asked Cohen about the pepper and
toothbrushes, he denied knowing anything
about them.
In November 2014, the court found Cohen
guilty of one felony count of delivery of illegal
articles to an inmate, one count of resisting
or obstructing an officer and disorderly
conduct. Cohen pleaded no contest to
the two misdemeanor counts and entered

deferred prosecution on the felony charge.
The OLR is asking the Wisconsin Supreme
Court to suspend Cohens license for 60 days
for four counts of misconduct.
Court reinstates former Madison

attorney after 26 years
The Wisconsin Supreme Court has reinstated
the license of an attorney who voluntarily
asked that his license be revoked 26 years ago
because of long-standing drug abuse.
The court reinstated Daniel Linehans
license under several conditions, including that
he consult with an accountant and complete
15 hours of ethics courses over the next year.
Linehan, who used to practice in Madison,
had requested the court to reinstate his
license on Feb. 28, 2014.
Disciplinary Actions, continued on page 12
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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
Disciplinary Actions, continued from page 11

According to the courts decision on July
17, Linehan plans to have a solo practice in
Black River Falls. Before 1989, Linehan had
a general practice and had more than 100
criminal jury trials and 25 to 30 civil trials.
Linehan petitioned the court in 1989 to
have his own license revoked while he was
under investigation by the Board of Attorneys
Professional Responsibility, now the Office of
Lawyer Regulation, for mishandling his trust
account, including using trust account money
for personal expenses and depositing money
from a personal loan into his trust account.
Long-standing drug abuse contributed to the
allegations of misconduct, according to the
courts decision.
Linehan stated that he could not get the
treatment required to recover while practicing
law, and that he sought the suspension of
his law license because he needed medical
treatment.
However, it took more than a decade for
Linehan to get his life back together.
The referee in the case found that Linehan
had abused drugs and alcohol since he was 15.
High court denies attorneys

second request for reinstatement
The Wisconsin Supreme Court has denied
a former Eau Claire attorneys petition for
reinstatement.
According to the decision, released on
July 17, Nancy Schlieve has not shown that
she is fit to practice law. The court noted
that testimony from an administrator at the
Wisconsin Lawyers Assistance Program,
which offers non-legal aid to lawyers on
matters such as addiction, retirement and
other personal issues, suggested that
Schlieve had not been reasonably cooperative
with the programs drug-monitoring system.
12
The court also noted that two people

from the Eau Claire City Attorneys Office
had testified that Schlieve was difficult to
communicate with. For example, an assistant
city attorney noted that she would try to
delay cases by sending undated faxes with no
return numbers.
Schlieve petitioned the court in 2012 for
reinstatement.
Attorney faces license revocation

over five counts of misconduct
A Madison attorneys license could
be revoked over several allegations of
misconduct, including that he took more than
$1 million from companies in which he had
ownership.
Patrick Sweeneys license has been
suspended since November 2013 for failing
to pay dues and not reporting continuing
education requirements.
According to an Office of Lawyer
Regulation complaint filed July 10, the
misconduct stems from two client matters.
The complaint alleges that Sweeney practiced
while his license was suspend, appearing in
court and filing motions in a case throughout
December 2013.
The remaining misconduct involves three
corporations in which Sweeney had part
ownership, according to the complaint. The
OLR alleges that, in 2007, one of Sweeneys
friends and clients borrowed money from
the corporations. Despite the conflict of
interest, according to the OLR, Sweeney
drafted, signed and guaranteed the friends
promissory note to the corporations.
Later, according to the OLR, Sweeney took
more than $1 million from the corporations
for his personal use, but told partners he was
loaning the money to the client. He took out
$255,104 in his name, and then he took out
another $788,935.19 under a different name.
When Sweeney and his wife later filed for

bankruptcy, in 2013, he refused to pay the
filing fee, even when the U.S. Bankruptcy
Clerk ordered him to do so.
The OLR is asking that the Wisconsin
State Supreme Court revoke his license to
practice law.
High court suspends Milwaukee

bankruptcy attorneys license
The Wisconsin Supreme Court has
suspended a Milwaukee attorneys license
for 60 days because of how he dealt with his
clients bankruptcy cases.
The discipline stems from an Office of
Lawyer Regulation complaint alleging that
Paul Strouse, a bankruptcy attorney, had
mishandled four bankruptcy cases between
2008 and 2010. The OLR requested that
Strouses license be suspended for 60 days
for eight counts of misconduct.
According to the complaint, Strouse didnt
properly inform two clients of the fees owed
to him and did not respond to requests for
information from two other clients. He also
lost a piece of fuel-monitoring equipment
given to him by a client, according to the
complaint.
Strouse disputed the misconduct
identified in two of the bankruptcy cases.
Still, the justices only threw out the charge
that accused Strause of fraud, deceit or
misrepresentation. That charge was related
to allegations that he had gone back on an
agreement to provide legal services to a client
in exchange for website design services.
The court-appointed referee never
determined the details of the agreement
between Strause and that client, so the
justices dismissed the charge.
The court also ordered Strouse to pay
$67,562.12 to cover the full cost of the
proceeding.
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Commentary
WISCONSIN LAW JOURNAL
COMMENTARY
BENCH BLOG
Court helps define when open-records can include personal notes
Judge Jean
DiMotto retired
in 2013 after
16 years on
the Milwaukee
County Circuit
bench and now
serves as a
reserve judge.
She also is of
When a mid-state newspaper made a fullcourt press for the release of employee notes
that were taken during a school districts disciplinary investigation, the Court of Appeals
took the opportunity to construe an exception
to the public-records law.
In The Voice of Wisconsin Rapids v.
Wisconsin Rapids Public School District, the
plaintiff newspaper cited the states openrecords law in petitioning for a writ of mandamus that would compel the local school
district to allow access to the handwritten
materials.
The School District objected on the
grounds that the notes taken down during
an investigation into an alleged impropriety in
a school athletic program did not fall within
the statutory definition of a public record.
Circuit court proceedings

During the discovery phase of the lawsuit,
the
newspaper conducted depositions of
Nistler Law office
various
district employees. Those questioned
SC. She can
testified that they had written down the notes
be reached at
individually, then used them to refresh their
jeandimotto@
memories concerning parts of the investigagmail.com.
tion that they had taken part in directly.
They kept the notes in their offices, not
distributing them to anyone else, and there
was no evidence that the notes had served as the foundation for
a cumulative document.
At the newspapers request and over the districts objection,
Wood County Circuit Judge Mark Slate conducted an in-camera
inspection of the documents and then sealed them.
Slate stated that the materials were primarily highlights recorded for the originators own personal use. The notes consisted, in
counsel with
14
part, of reminders of what each interviewee had said and listed

tasks for the originators to undertake in the investigation.
Also included were
doodles, as well as
comments reflecting
frustration with some
parts of the investigation. Slate saw
those contents as
indicia that the documents were made
solely for employees
own use.
Together with the
deposition evidence,
Slate stated he
had no doubt that
the materials were
personal notes that
were made for the
originators personal
use as defined in
section 19.32(2) of
the open-records law.
Accordingly, he denied the petition for
writ of mandamus.
The newspaper
appealed.
The Voice of Wisconsin

Rapids v. Wisconsin
Rapids Public School
District presents
a timely reminder
that legislative and
executive drafting
and alterations are
not merely notes but
memorials of those
government branches
activities and deserve
to be open to public
scrutiny.
Court of Appeals decision

The District 4 Court of Appeals decision was written by Presiding Judge Brian Blanchard. The court indicated that the matter at
issue was the exception to the definition of a public record contained in section 19.32(2). According to the exception, Record
does not include drafts, notes, preliminary computations and like
Commentary
materials prepared for the originators
personal use.
To analyze the word notes, the
court looked to the common dictionary
definition of the word. After reviewing
the sealed documents that Slate had
inspected, Blanchard wrote, We cannot
think of a more suitable word to describe
how these documents appear than
notes, for the same reasons given by the
circuit court.
They are mostly handwritten and at
times barely legible. They include Post-it
notes and telephone message slips, and
in other ways appear to reflect hurried,
fragmentary, and informal writing.
Personal-use exception
The court then analyzed the statutory phrase prepared for the originators
personal use. A 1988 attorney generals
opinion indicated that the phrase should
be construed narrowly to mean notes
taken for the sole purpose of refreshing
ones recollection later.
If the notes are instead distributed to
others to communicate information, or are
retained to memorialize agency activity,
then they are not excluded from the broad
definition of record.
In the end, the court was convinced
that the attorney generals opinion had
put forth a correct interpretation of the
personal-use exception. It noted that the
interpretation was consonant with a 1998

Court of Appeals decision concluding that
a judges personal sentencing notes fell
within the exception.
The court also found significance in the
fact that the attorney general is charged
with interpreting the public-records law.
Moreover, state lawmakers in the more
than 25 years since this opinion was
issued have not seen fit to amend this
section of the law despite making many
changes elsewhere.
Applying the legal interpretation of the
subsection, and considering the deposition testimony, the court concluded that
School Notes, continued on page 16
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.
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Commentary
School Notes, continued from page 15
Slate was correct in finding that the notes
were for the employees personal use.
In so concluding, the court rejected
various arguments put forward by the
newspaper in a speculative effort to argue
the notes might have been distributed
to others in the future (e.g., a supervisor
might have received a report based on
the notes, or the notes might have been
retained for use in the event of litigation).
Commentary
The vigor of the newspapers appeal
is evident in the discussion section of the
opinion. Still, I believe the sheer number
of arguments it contained resulted in a
discussion that was not consistently clear
or easy to follow.
Nonetheless, this case presents an
excellent example of what kinds of materials are envisioned by notes and what
is meant by the personal-use exception.
Accordingly, it is an important contribution
to open-records jurisprudence.
This case was published just before
the brouhaha created by the Wisconsin
Legislatures attempt to use the state
budget to change the open-records law in
order to hide records of changes made to
legislation.
The case therefore presents a timely
reminder that legislative and executive
drafting and alterations are not merely
notes but memorials of those government
branches activities and deserve to be
open to public scrutiny.
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Commentary
ON ETHICS
Backdating scheme fells law firm

Ethics missing from now-defunct New York firm of Dewey & LeBouef
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
I am often asked by the readers of

this column how I go about selecting
my topics.
I wish I had some sort of grandiose
reply about doing research and staying
up hours into the night. But the truth is
that I more often than not find myself
pulling a Dick Wolf the creator of
the Law & Order franchise and
ripping my stories from the headlines.
Hence todays column.
I had started off with plans to write
about an entirely different topic but
then came across an article about
the trial of the former leaders of the
now-defunct New York firm of Dewey
& LeBouef.
I have written previously about
Deweys demise. But that was before
the current trial, which is offering a
bit of juicy TMZ-style gossip for those
in the legal profession.
The former head of the firm, the
firms chief financial officer and
former finance director are now all
facing criminal charges. Among other
things, they stand accused of lying
to investors about the firms financial
condition.
Thearticle that grabbed my
attentionconcerned a low-level
employee who had the responsibility
of calling the firms partners at the
end of the year and asking about the
collection of receivables, a practice
also known as dialing for dollars.
Following the advice of her superiors,
she apparently would not only tell
the partners to bring in receivables
so the firm could meet its revenue

targets, but also would ask them to
have their clients backdate payments.
Specifically, the calls encouraging the
collection of receivables were being
made in early January 2010, but the
checks were to be backdated to make
it appear as though they had been
written the previous month.
During direct examination, this
client-relationship manager confirmed
that a handful of partners had in fact
questioned whether the practices
were appropriate, but most had
not. Of the more than 30 powerful
partners who had received an email
about the backdating, she said, only a
few complained.
These partners clearly had no
understanding of the applicable
ethics rules. Specifically, Rule
5.1 (Responsibilities of Partners,
Managers, and Supervisory Lawyers)
states, among other things, that, A
partner in a law firm ... shall make
reasonable efforts to ensure that the
firm has in effect measures giving
reasonable assurance that all lawyers
in the firm conform (their behavior) to
the Rules of Professional Conduct.
The rainmakers involved in the
Dewey case were apparently not
guilty of initiating the backdating
scheme. That makes it no less
troubling, though, that they were so
willing to go along.
Did these same partners ever
consider the firms representations
to its outside lenders or creditors?
As several readers of this column

probably know, many firms use debt
financing to pay for their operations.
Some, for instance, take out a line of
credit that can be drawn on during
lean months.
The various loan and credit
agreements used for these purposes
often contain covenants and
representations that can require a
borrowing firm to provide accurate and
detailed pictures of the firms finances.
And, as you, my ethical friends, know,
a lawyer may not ... engage in conduct
involving dishonesty, fraud, deceit or
misrepresentation. (Rule 8.4(c).)
So, here, the Dewey rainmakers,
who clearly have power within the
firm, and arguably have supervisory
or managerial duties however
those are defined shirked their
responsibilities and allowed the firm
to engage in fraud.
Although some might argue that
these partners should not be held
responsible for the actions of a small
number of people, the simple truth
is that Dewey collapsed not only
because of how it was being run, but
also because of who was running it.
Being a lawyer can be fulfilling,
empowering and even lucrative. That
does not mean, though, that there are
not also great responsibilities.
Dewey collapsed for many reasons.
One of those, it is clear now, was that
the now-former partners ignored their
responsibilities to the firm and to
each other.
17
Commentary
ON THE DEFENSIVE
Doubling down on a failed approach

Putting resources into prosecution wont curb gun violence
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.
18
There has been an explosion in

gun violence in Milwaukee this year.
Homicides have hit a record number,
even though Milwaukee is saturated
with shot spotter technology.
Shot spotter consists of thousands
of microphones that have been placed
throughout the city. The system
enables law-enforcement officers to
learn almost immediately when and
where a shooting occurs.
As a result, emergency personnel
are responding to gun crimes in record time, evidence is being collected
promptly, and suspects are being
apprehended in short order.
So why has there been no reduction in violence?
Policymakers at all levels have
been scrambling to find answers.
Unfortunately, the ones theyve come
up with so far do nothing but add to
the same failed script that has been in
place for decades.
Consider the Memorandum
of Agreement that was recently
executed between the Attorney
Generals Office and the Milwaukee
District Attorneys Office. In short, the
agreement will result in the Department of Justices providing two
Assistant Attorneys General to work
with the District Attorneys Office to
handle firearms-related investigations
and prosecutions involving unlawful
possession of firearms and non-fatal
shootings. The DOJ has also committed to providing $50,000 in federal
JAG grant funding to pay the overtime
expenses that the Milwaukee Police
Department will incur during these
investigations.
In other words, we are going to
try to prosecute our way out of these
afflictions.
MARK HOFFMAN/MILWAUKEE JOURNAL SENTINEL VIA AP
Authorities work the scene of a double homicide in Milwaukee on July 7. Milwaukee has
surpassed its homicide total from 2014 already in 2015. A sign that the current path isnt working.
Shortly after this Memorandum of

Agreement was executed, Attorney
General Brad Schimel issued a news
release declaring war on those who
commit crimes involving firearms.
Declaring war on violence and
putting more resources into prosecution fails to deal with the root cause
of this sort of behavior.
Policymakers should instead begin
the discussion by asking themselves
why the epicenters of gun violence
are found in the most impoverished
parts of Milwaukee. They should then
reflect on what they can do to bring
opportunity back to our blighted
communities. People who perceive
their lives as hopeless, meaningless,
and without opportunity will never
respond constructively to the threat
of a felony conviction or the thought
of a draconian prison term.
Absent from the discussion has
been any serious talk about improving services on the back-end of the
criminal justice system. Too often,
men and women are released from
custody only to be supervised by
an overworked probation agent.
Little to no resources are dedicated
to rehabilitating the probationer. In
other words, the person leaves incarceration with none of the changes in
mindset or abilities that would make a
return far less likely.
Bold solutions are certainly needed.
In the meantime, we should shift
more of our resources away from
punitive measures and put them toward rehabilitative ones. America has
5 percent of the worlds population,
but 25 percent of its prisoners. As a
society, we should have the courage
to recognize that doubling down on a
failed system is not a means of making our communities safer.
Cover story
PAYING
THE BAR
TAB
KELLER DUES AT HEART OF LATEST
STATE BAR SKIRMISH
Erika Strebel
erika.strebel@wislawjournal.com
The latest development in a long-festering dispute over mandatory dues finds the Wisconsin State Bar once again preparing to go to the arbitration table to fight off a challenge of its
ability to collect money for purposes that members might object to.
In June, three lawyers asked arbitrators to intervene in a dispute concerning the dues they
have been charged to support the bar during its 2016 fiscal year, which started July 1. Specifically, the lawyers are raising objections about the $5.25 that they are allowed to withhold in
order to avoid supporting the bars various lobbying and political endeavors.
All three argue that the amount should be higher. At least one, Steve Levine, a former member of the bars board of directors and a frequent critic of the organization, is suggesting that
it should be more in the neighborhood of $20.
Although that would still be less than 10 percent than the $254 in total dues that are being
charged for the 2016 fiscal year, the bar is refusing to go along.
State Bar, continued on page 22
20
Cover story
STAFF PHOTO BY KEVIN HARNACK
Steve Levine, a former member of the State Bars

Board of Governors, has been a frequent critic of the
organization. His latest fight revolves around the bars
ability to collect money for purposes that members
might object to.
21
Cover story
State Bar, continued from page 20
Keller dues
At the heart of the dispute is what are
commonly referred to as Keller dues. In the
case of Keller vs. State Bar of California, the
U.S. Supreme Court held that state bars may
not use mandatory dues to pay for political
purposes unless the money is put, in some
way, toward regulating the profession or
improving legal services.
Every time Wisconsin lawyers learn what
they owe the bar for the coming fiscal year,
they are given the choice of not paying the part
of their dues that is designated for supporting political candidates or pushing for various
pieces of legislation. This system, simple
enough on its face, is complicated only by the
fact that it is the bar itself which decides what

the Keller portion of the dues should be.
The current request for arbitration is just
the latest skirmish in a decades-long fight
between various legal professionals and the
State Bar. Disputes of this sort have been going on since at least 1943, when membership
in the bar was made mandatory for lawyers.
In the early years, lawyers goals often
were simply to prevent the use of dues for
political purposes. The Keller decision,
handed down in 1990, was in part meant to
eliminate that cause of grievance.
With Keller, lawyers were supposed to
have gained an easy means of ensuring
that their dues go only to endeavors related
directly to the legal profession. Those
who didnt want to pay for lobbying or
BY THE
NUMBERS
$5.25
Amount lawyers can choose to withhold

from their dues. The figure was calculated by
taking what the bar spent on lobbying and
other political activities in 2014 and dividing
that number by an adjusted tally of the bars
total membership.
$254
Dues the State Bar is charging for its 2016

fiscal year, which started July 1
25,149
Number of lawyers who were members of

the State Bar on July 1
Attorneys at Law
22
Bobbi Howell, a lawyer who represents the

State Bar, says Wisconsins bar is held in
high regard compared to other states.
similar activities could simply elect to withhold a portion of their dues.

Instead of an end to litigation, though, the
result has been a new crop of disputes over the
boundary lines drawn by the Keller decision.
The latest request for arbitration more or
less fits into that mold. In June, the State
Bar received objection letters from Levine,
whose main office is in Madison; Jon Kingstad, a lawyer with his main office in Oakdale,
Minn.; and John Sobotik, a lawyer at the
Wisconsin Department of Transportation.
All three complained of the bars previous
use of dues money for lobbying purposes.
Among the examples cited was spending related to the states current budget, to a proposed
overhaul of the rules governing criminal procedures and to a constitutional amendment that
would increase the length of state Supreme
Court justice terms to 16 years.
Seeing arbitration as likely inevitable, the
bars Board of Governors agreed at a meeting on June 24 to take $75,000 in surplus
money and transfer it to the organizations
legal services budget. Long experience has
taught board members that fighting these
sorts of challenges is not cheap.
At the Board of Governors meeting, State
Bar Executive Director George Brown said
that arbitration almost always leads to an
appeal in court. The last time a case did not
follow that route was in 1995, and the bar
still spent $80,000 defending itself.
Mishlove and Stuckert
Wisconsin OWi defense

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Cover story
23
Cover story
Taking the fight before a judge is even
more expensive.
Before the current dispute, the previous
request for arbitration in 2008 eventually
turned into the case of Kingstad vs. State
Bar of Wisconsin, which was finally decided
in 2010 in the federal Seventh Circuit Court
of Appeals. In the end, the State Bar spent

more than $100,000, according to Brown.
Cost of fighting
One likely reason the bar is willing to
shell out so much to fight dues challenges
is the possibility that defeat will prove
even more costly. In the current dispute,
Levine and his fellow objectors are arguing
professional
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announcements
For additional information contact

Jamie.Kerr@wislawjournal.com
that all expenses related to lobbying and

government relations, including the salaries
of some bar employees, should be included
in the Keller portion of bar dues.
According to State Bar officials, that
would push the amount covered to between
$18 and $22. At the upper end, that would
amount to a quadrupling of what the bar is
now offering. Still, the higher dues, taken
by themselves, are not necessarily the main
cause for concern.
More troubling, according to Brown, is that
the larger the Keller amount, the greater the
incentive members would have to not pay that
part of their dues. The real threat to the bar
would be that lawyers, suddenly finding they
have much more to gain, would begin withholding their Keller dues in greater numbers.
As things stand today, the $5.25 Keller
amount set for 2016 was arrived at using a
fairly simple formula. First, bar officials took
into account the $104,946 that was spent in
its 2014 fiscal year on purposes other than
those permitted by the Keller decision. Next,
they divided the total by 20,661 a figure
used as a proxy for the number of members
who pay full dues. (The tally is adjusted to
account for the fact that emeritus members
and others pay slightly lower amounts).
Echoes of yesterday
As in many recent disputes, the arguments raised in the latest one concern the
boundaries that the Keller ruling has set on
spending. Levines points, in particular, bear
a resemblance to many of the questions that
he had posed years before, in the case of
Thiel vs. State Bar of Wisconsin.
That case, decided in 1996, saw two Wisconsin lawyers, James Thiel and Barbara
James, contend that mandatory fees were
going toward purposes not permitted by
Keller. The pair, who were represented by
Levine, objected to the bars relying on mandatory dues to cover a variety of expenses,
including awards given to journalists who
write about the law and a program called
Lawyers Concerned for Lawyers, which assists lawyers dealing with alcohol problems.
The 7th Circuit, agreeing with the U.S.
district court, found that the expenditures
were in fact related to improving the quality
of legal services throughout the state. In
other words, they were permitted by Keller.
This time, though, Levine, Kingstad and
24
Cover story

Sobotik are raising questions specifically
about lobbying expenses. The spending they
are objecting to including that on the
state budget could easily be construed to
be more related to politics and less to regulating the legal profession or improving legal
services in the state.
The bar, for its part, maintains that its
2016 Keller amount was set by the book.
The Kingstad decision (of 2008) established the parameters and the bar has complied with those parameters, said Bobbi
Howell, a lawyer who represents the State
Bar. I dont think the law has changed with
that regard.
A hotbed of controversy
The American Bar Association lists 32
states as having a mandatory bars. Of

those, not a single one has ever permanently
moved to allow voluntary membership.
Wisconsin was the temporary exception
from 1988 and 1992; Levine was once again
involved.
The state Supreme Court suspended its enforcement of mandatory membership when a
U.S. district court ruled in his favor in Levine
vs. Supreme Court of Wisconsin, a case that
examined whether the state bars rules violated First Amendment rights. Levines victory
was short lived, though. The 7th Circuit Court
of Appeals eventually reversed the decision,
paving the way for the state Supreme Court
to reinstate the mandatory bar.
Levine has been a plaintiff in at least two
other cases against the state bar or its officials, and, as happened in the Thiel case,
has also represented other lawyers in chal-
lenges. In 2011, he and Thiel unsuccessfully

attempted to petition the state Supreme
Court to have the institution abolished.
The long history of litigation between the
State Bar and Wisconsin attorneys is wellenough known to be noted from time to time
in the court record. For example, in Thiel,
the 7th Circuits decision made reference to
the seemingly never-ending battle between
Wisconsin attorneys and the Wisconsin
State Bar.
And yet, Wisconsins mandatory bar appears to be held in high regard by other states.
There have been other states where
the issue has come up, Howell said, and
interestingly in those cases, the Wisconsin
Bar is held up as sort of an example of the
way things should be done in those states.
So its a little bit ironic that theres such an
active objectors group.
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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
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cases. Welcome to our new, and improved, Case Digests:
CIVIL CASES:
Commitment Discharge
WI Court of Appeals District IV
Appellant Kerby Denman appeals a circuit court
order denying without a hearing his 2013 petition
for discharge from his commitment as a sexually
violent person under WIS. STAT. ch. 980 (201112). The court concluded that the psychological
report that Denman submitted in support of
his 2013 petition did not allege, as required at
the time under WIS. STAT. 980.09(1), facts
from which the court or jury may conclude that
Denman has changed since the date of his
initial commitment order so that [he] does not
meet the criteria for commitment as a sexually
violent person. More specifically, the court
concluded that the psychological report contains
no new facts or psychological research that could
not have been considered at the 2012 discharge
hearing at which a prior petition for discharge
filed by Denman was denied.
Reversed
2014AP2133 State of Wisconsin v. Kerby G.
Denman
Official Blanchard P.J., Lundsten, and
Higginbotham, JJ
Arbitration Motion to Vacate or Modify

Award WI Court of Appeals District III
Appellant Green Bay Professional Police
Association appeals arbitration award denying
appellants motion to vacate or modify the arbitration award and granting respondents motion to
confirm the award. Appellant argues that (1) the
circuit court should have vacated the arbitration
award because the Citys offer violated WIS.
STAT. 62.13(7), which prohibits a municipality
from decreasing police officers salaries without
a previous recommendation from the board of
police and fire commissioners, (2) that the award
should have been vacated because the arbitrator
exceeded his authority by failing to give weight
to the effect of health insurance on overall compensation, as required by WIS. STAT. 111.77(6)
(bm)6, and (3) that the circuit court should have
modified the award because it is based on an
evident material mistake. We reject these arguments and affirm.
Affirmed. Per Curiam.
Officials: Stark and Hruz, JJ., and Thomas Cane,
Reserve Judge
2014AP2727 Green Bay Professional Police
Association v. City of Green Bay
Ordinance Violation Statutory Interpretation WI Court of Appeals District III
Appellant Mark Slusarczyk appeals a judgment
finding he violated a City of Eagle River sign
ordinance. Slusarczyk argues the ordinance does
not apply because his sign does not meet the
definition of an off-premises sign. He also argues

the Citys ordinance conflicts with a preemptive
state statute, and that the ordinance, as applied,
violates his constitutional rights. We conclude the
Eagle River ordinance conflicts with a preemptive
state statute and reverse.
Reversed
Officials: Stark, J
2014AP2760 City of Eagle River v. Mark
Slusarczyk
Personal Injury Comparative Negligence
Jury Instructions Supreme Court of
Wisconsin
The necessity for a new trial does not follow from
a negligence instruction given in error unless it is
shown to have been prejudicial jury instruction
need not be perfect.
Even if the truck driver negligence instruction
was in error, the defendant is not necessarily
entitled to a new trial. Erroneous jury instructions
warrant reversal and a new trial only when the
error is prejudicial.11 Whether an error is prejudicial is a question of law this court decides independently of, but benefiting from, the analyses of
the circuit court and court of appeals . . . Could
the truck driver negligence instruction have been
more clearly worded? Perhaps. But perfection is
not what the law requires. An appellate court
need decide only whether the overall meaning
communicated by the instruction . . . was a correct
statement of the law[] . . . . In the instant case,
the overall meaning communicated by the totality
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Wisconsin Law Journal|CASE DIGESTS

of the negligence instructions was a correct statement of the law and was not misleading.
Affirmed
13-AP-1750 Ronald J. Dakter v. Dale L. Cavallino
SHIRLEY S. ABRAHAMSON, J.
Concurring: ROGGENSACK, C. J. concurs (Opinion
filed). ZIEGLER, joined by GABLEMAN, JJ. concur
(Opinion filed).
Statutory Time Limits Request for De Novo
Trial WI Court of Appeals District II
Appellant appeals decision dismissed by a circuit
court commissioner on October 13, 2014. The circuit court later held that a letter filed by Hoeller
on October 24, 2014, constituted a request for a
de novo trial, but was untimely under WIS. STAT.
799.207(2). Hoeller appeals the circuit courts
determination that his request was untimely,
arguing that WIS. STAT. 799.28(2) applies
to time limits in this case and allows him the
right to file a request for a de novo hearing up
to one year after the commissioners decision.
We affirm the circuit courts decision that
799.207(2) governs time limits for small claims
actions heard before circuit court commissioners
and find Hoellers request to be untimely.
Affirmed.
Officials: REILLY, J
2014-AP-2859 Timothy L. Hoeller v. Dr. Michael
Kula, Psy.D.
CONTRACTS
Contract Enforceability
Supreme Court of Wisconsin
An enforceable contract exists when there is a
remedy available for a breach for such a contract.
A remedy is indisputably available for a breach
of the purchase contract between Ash Park and
Alexander & Bishop. Indeed, Ash Park has already
obtained the remedy of specific performance for
Alexander & Bishops breach. In response to the
sole issue presented for our review, we therefore
conclude that the purchase contract between
Ash Park and Alexander & Bishop constitutes an
enforceable contract within the meaning of
the listing contract between Ash Park and Re/
Max. Re/Max is entitled to a brokers commission
from Ash Park even though Alexander & Bishop
breached the purchase contract and the sale was
never consummated.
Affirmed
SHIRLEY S. ABRAHAMSON, J
Concurring: ROGGENSACK, C. J. concurs (Opinion
filed)
Not Participating: PROSSER, J.

2013-AP-1532 Ash Park, LLC v. Alexander &
Bishop, Ltd.
Subrogation Bad Faith
Based on the undisputed facts presented on summary judgment, we first conclude that Dairyland
has no subrogation rights under Valley Forge Ins.
Co. v. Home Mut. Ins. Co., 133 Wis. 2d 364, 396
N.W.2d 348 (Ct. App. 1986), because Dufour has
not been made whole considering his total loss.
We further conclude that Dairyland acted in bad
faith when it denied Dufours claim to the funds
at issue. Accordingly, Dufour is entitled to summary judgment in his favor on both his claim to
the subrogated property damage funds and his
bad faith claim. Therefore, we affirm the circuit
courts order in part and reverse it in part, and
remand for proceedings on Dufours damages,
including punitive damages, in regard to his bad
faith claim.
Affirmed in Part. Reversed in Part. Remanded. Per
Curiam.
Officials: Lundsten, Higginbotham and
Kloppenburg, JJ.
Subrogation Bad Faith
2014-AP-157 Dennis D. Dufour v. Progressive
Classic Ins. Co
Motion to Dismiss Breach of Warranty
Alan Goldberg, Wendy Goldberg, and the
Goldberg Family Trust (collectively, Goldberg)
appeal a circuit court order that granted Pella
Corporations motion to dismiss Goldbergs breach
of warranty claim against Pella at the close of the
plaintiffs case. Goldberg contends that the court
erred by dismissing Goldbergs breach of warranty
claim against Pella because: (1) Pellas warranty
established coverage for Goldbergs claim based
on condensation on Pella windows and doors in
Goldbergs home; (2) Pellas admission that the
condensation was not consistent with the proper
functioning of its windows and doors established
a prima facie case of breach of warranty; (3) there
was no evidence to establish that an exclusion to
the warranty coverage applied; and (4) dismissal
was inconsistent with the courts decision denying a motion to dismiss Goldbergs claim against
the sellers of the house for failing to disclose
the condensation as a defect. We reject these
contentions and affirm the circuit courts order
dismissing Goldbergs claim against Pella.
Officials: Blanchard, P.J., Higginbotham, and

Sherman, JJ.
2014-AP-1117 Alan Goldberg v. Michael
DiMaggio
FAMILY LAW
Family Law Child Custody Stipulation
Order WI Court of Appeals District I
Background/Posture
Jill Irene Glidewell (n/k/a Jill Irene Riley) appeals
from a post-judgment custody order continuing
joint custody with Jills former husband Herbert
Glidewell, but allocating certain decision-making
to each party. Jill argues that (1) the circuit court
erred in concluding that she had permanently
waived the domestic violence presumption when
she stipulated to joint custody in the original
divorce and (2) contends that the great weight
and clear preponderance of the evidence does not
support the circuit courts post-judgment modified
joint custody order.
Affirmed
Official: Brennan, J.; Curley, P.J.; and Thomas
Cane, Reserve Judge
Family Law Child Custody Stipulation Order
14AP1957 Herbert Raymond Glidewell v. Jill Irene
Glidewell
Family Law Termination of Parental Rights
WI Court of Appeals District I
Jodie A. appeals the orders terminating her
parental rights to two of her children, B.A. and
J.C. We affirm.
Affirmed
Officials: Curley, P.J.
Family Law Termination of Parental Rights
2015AP46; 2015AP47 State of Wisconsin v. Jodie A.
Family Law Divorce Child Placement
Christopher Hynek appeals a judgment entered by
the circuit court in this divorce action. He argues
on appeal that the circuit court failed to maximize
physical placement of the parties children with
each party wrongfully granted grandparent visitation, exhibited bias, made various errors with
respect to evidentiary issues, ruled against the
best interests of the children regarding electronic
communication, failed to rule upon domestic
abuse issues raised, and failed to properly rule
on health care issues. For the reasons set forth
below, we affirm the order of the circuit court.
Officials: Blanchard, P.J., Sherman and
27

Kloppenburg, JJ.
Family Law Divorce Child Placement
2014-AP-243 Julie Ann Hynek V. Christopher M.
Hynek
Family Law Divorce Motion to Enforce
James Sterr appeals an order of the circuit court,
which granted Kathy Sterr-Mackes motion to
enforce a 1989 judgment of divorce and awarded
Kathy monthly payments from Jamess pension.
Kathy asserts that the appeal is frivolous and has
moved for costs, fees, and attorney fees pursuant
to WIS. STAT. RULE 809.25(3) (2013-14). For the
reasons set forth below, we affirm the order of
the circuit court, but deny the motion for costs,
fees, and attorney fees under RULE 809.25(3).
Officials: Lundsten, Higginbotham and Sherman,
JJ.
2014-AP-1356 James R. Sterr v. Kathy E. SterrMacke
CIVIL PROCEDURE
Civil Procedure Summary Judgment
Frivolous Appeal
WI Court of Appeals District III
Jason Edmonson, pro se, appeals a summary
judgment granted to Michelle DeWitt, Darren
DeWitt, DeWitt Enterprises, Inc., and DeWitt
Enterprises, LLC (collectively, the DeWitts). Prior
to filing their response brief, the DeWitts moved
to declare Edmonsons appeal frivolous. We agree
the appeal is frivolous. We therefore affirm, grant
the frivolousness motion, and remand for an
award of reasonable attorneys fees.
Affirmed. Per Curiam
Officials: Hoover, P.J., Stark and Hruz, JJ.
2014AP282 Jason L. Edmonson v. Michelle Dewitt
Civil Procedure Motion to Enlarge Time to
Answer
Deutsche Bank National Trust Company appeals
a foreclosure judgment entered in favor of Royal
Credit Union (RCU). Deutsche Bank argues the
circuit court erred by denying its motion to
enlarge the time to answer RCUs complaint and
its motion for relief from judgment. Deutsche
Bank also raises arguments based on unjust
enrichment and equitable subrogation. We reject
all of Deutsche Banks arguments and affirm the
foreclosure judgment.
28
Reserve Judge
2014AP2850 Royal Credit Union v. Frances M.
Schneider
Failure to State Claim
Harry and Georgia Hall, pro se, appeal a judgment
dismissing their complaint for failure to state a
claim upon which relief can be granted. We agree
with the circuit court that the Halls, who seek
to recover for an allegedly excessive property
tax assessment, failed to state a claim because
they did not allege compliance with the statutory
prerequisites necessary to bring such an action.
We reject the Halls various arguments to the
contrary, and affirm.
2014-AP-2239 Harry Hall v. Village of
Ashwaubenon Board of Directors
Contempt Sanctions
WI Court of Appeals District II
Respondent-Appellants appeal a money judgment
in favor of appellant, Thomas P. Dreifurst. The
judgment imposed $140,000 in aggregated contempt sanctions, plus costs and attorneys fees.
The companies challenge the contempt sanctions.
For the reasons discussed below, we affirm.
Affirmed.
Official: Lundsten, Sherman and Kloppenburg, JJ
2013AP2087 Thomas P. Dreifuerst v. Wisconsin
Movers Supply Company, Inc.
CIVIL RIGHTS
Racial Discrimination Retaliation
7th Circuit Court of Appeals
Where appellants claim fell short for failure to
provide evidence that he was prevented from taking an examination necessary for promotion.
We cannot draw the conclusion that Burks was
given the run-around, for the following reasons.
First, Burks has not provided any evidence that
anyoneStorbeck or any other individualcommunicated to Burks that Stearns was setting
up the SCBT for him. In order for Kachnowskis
statement to carry any retaliatory force, Burks
must show that it prevented him from following
the proper application procedures. Burks has not
provided any facts to show he was even aware of
Kachnowskis statementlet alone that he acted
upon it. Second, Burks has provided no evidence
that Kachnowski had any knowledge of Burkss
prior race- discrimination complaint. Without that
knowledge, Kachnowski would have had no basis
for retaliatory behavior.

Affirmed.
Officials: EASTERBROOK, KANNE, and
HAMILTON, Circuit Judges.
No. 14-2707 Frank Burks v. Union Pacific Railroad
Company
5th Amendment Violation
Where the Due Process Clause of the Constitution
does not protect an individual against defamation.
Reading the facts in the light most favorable to
Hinkle, the defendants defamed himhorribly so.
But the Due Process Clause of the Constitution
does not provide a remedy for defamation, even
of the worst kind. Rather, to establish his due process claim, Hinkle needed to show a liberty interest with which the defendants interfered. While
there is a liberty interest in following ones trade
or profession, the government does not deprive a
plaintiff of such an interest by defamation alone.
The defamation must combine with an alteration
or removal of a legal status. Hinkle did not show
any alteration of his legal status and thus cannot
succeed on his due process claim. Accordingly,
the district court properly granted the defendants
summary judgment. We AFFIRM.
Affirmed.
Officials: WOOD,Chief Judge, and FLAUM and
MANION, Circuit Judges.
14-2254 Jimmy Hinkle v. Rick White
Involuntary Civil Commitment
M. M. L. appeals from an order for involuntary
commitment and from an order for involuntary
medication. M. M. L. argues that there was insufficient evidence to find her dangerous under the
third standard, WIS. STAT. 51.20(1)(a)2.c. M. M.
L. argues that the circuit court erred in allowing a
court-appointed examiner to testify about hearsay
statements made by M. M. L.s family members
and contained in her treatment and detention
records. The circuit court did not err. These statements were taken from records that were part
of the basis for the court-appointed examiners
report and opinion and of the type usually relied
on by experts in his field. The examiners reliance on these statements was permissible under
WIS. STAT. 907.03. While M. M. L. argues that
the circuit court could not find dangerousness
without independent evidence of recent acts and
omissions manifesting impaired judgment, we
conclude that the court could rely on the experts
conclusion regarding this ultimate issue. See

WIS. STAT. 907.04. The County presented sufficient evidence to establish dangerousness. We
affirm.
Affirmed.
Officials: NEUBAUER, P.J
14-AP-2845 Walworth County DH&HS v. M.M.L
Nursing Care Negligence Immunity
Judy Moretto, as special administrator of the
estate of Theresa Moretto, and Theresas heirs
(collectively, the Morettos), appeal a judgment of
the circuit court in favor of Northern Bridges. The
Morettos brought suit against Northern Bridges
asserting various claims of negligence against
Northern Bridges related to Northern Bridges role
as Theresas care management organization. The
circuit court dismissed the Morettos claims and
entered judgment in favor of Northern Bridges on
the basis that Northern Bridges is immune from
liability under WIS. STAT. 893.80(4) (2013-14).
For the reasons discussed below, we affirm.
Officials: Higginbotham, Sherman and
Kloppenburg, JJ.
2014-AP-1498 Judy Moretto v. Free Bird, LLC
REAL ESTATE AND TENANCY

Apparent Authority Title Service
William and Sandra Haselow appeal a summary
judgment dismissing their claims against Chicago
Title Insurance Company. The circuit court determined the Haselows could not prove the elements
of apparent authority. We conclude the Haselows
could not satisfy the second element of apparent
authority, that Chicago Title had knowledge of its
purported agents representations. Accordingly,
we affirm.
2014-AP-1599 William C. Haselow v. Vilas Title
Service, Inc.
Adverse Possession
WI Court of Appeals
Appellant Mary Podgorak appeals an order dismissing without prejudice an action for adverse
possession and money damages. We conclude
Podgorak failed to plead facts sufficient to show
entitlement to relief and therefore affirm.
2014-AP-1822 Mary Podgorak v. Barbara A.
Engelking
Foreclosure Mortgage Modification

Appellant Marilynn Weeden appeals an order dismissing her action against Bank of America, N.A.
which claimed that the Bank failed to properly
act on Weedens mortgage modification request.
Weeden also appeals an order denying Weedens
motion to reopen the Banks foreclosure action
against Weeden so that Weeden could pursue
her claims against the Bank as counterclaims in
the foreclosure case. We conclude that the circuit
court properly dismissed Weedens action against
the Bank. We also conclude that the circuit court
properly denied Weedens motion to reopen the
foreclosure case. We affirm.
Official: Blanchard, P.J., Lundsten, and Sherman,
JJ.
2013AP2411 Marilynn G. Weeden v. Bank of
America, N.A.
2014AP737 Countrywide Home Loans, Inc. v.
Marilynn G. Weeden
Landlord Tenant Eviction
This is a landlord-tenant dispute involving a long
term farm property lease. Keith Trost appeals a
circuit court order and judgment evicting Trost
from property belonging to persons who include
Roy Dobbs and granting damages based on past
due rent. For the following reasons, I affirm the
circuit court.
Affirmed.
Official: BLANCHARD, P.J.
Landlord Tenant Eviction
2014AP2816 Roy E. Dobbs v. Keith Douglas Trost
Landlord Tenant Housing Codes
Where Wis. Stat. 66.0104(2)(d)1.a. preempts
requirement of landlords to notify tenants of City
inspections under the Citys inspection and registration program.
At the same time, our interpretation has minimal
impact, if any, on the requirement in WIS. STAT.
704.07(2)(a)5. that landlords comply with local
housing codes. As far as we can tell, nothing in
our interpretation stops local governments from
implementing rental housing inspection and
registration programs as part of a housing code,
let alone precludes other substantive housing
code regulations. We simply conclude that the
responsibility for communicating to tenants about
housing code programs like the Citys program
must, under WIS. STAT. 66.0104(2)(d)1.a., fall on
the government instead of on landlords.

Remanded. Recommended for Publishing.
Officials: Blanchard, P.J., Lundsten and
Higginbotham, JJ.
2015-AP-127 David E. Olson v. City of La Crosse
STATUTE OF LIMITATIONS
Statute of Limitations Judicial Estoppel
Appellant Michael L. Robinson, pro se, appeals
orders dismissing his medical malpractice suit.
Because his suit is barred by the statute of limitations as to one respondent and by the doctrine
of judicial estoppel as to the other respondents,
we affirm.
Officials: Curley, P.J., Kessler and Brennan, JJ.
2014-AP-1151 Michael L. Robinson v. Aurora St.
Lukes Medical Center
DISCIPLINARY PROCEEDINGS
Disciplinary Proceedings Reinstatement
Where attorneys license is reinstated with conditions due to medical incapacity even though
voluntary petition for revocation made no explicit
mention of medical incapacity
Per Curiam.
1989AP1848-D Office of Lawyer Regulation v.
Daniel W. Linehan
Disciplinary Proceedings Reinstatement
Petition for reinstatement denied even though
attorneys previous medical incapacity of alcoholism has been removed.
Per Curiam.
Dissenting: ABRAHAMSON, J., dissents. (Opinion
Filed.)
1996AP3390-D Board of Attorneys Professional
Responsibility/Office of Lawyer Regulation v.
Nancy A Schlieve
License Suspension
Where attorney with three previous public reprimands for professional misconduct receives sixty
day suspension for continuing pattern of disregard of supreme court rule requirements.
Per Curiam
BRADLEY, J. did not participate.
Paul A. Strouse
29

License Suspension
Attorney with no prior disciplinary history fails
to provide documents and communicate with
clients successive counsel and fails to respond
to multiple inquiries from OLR regarding pending
investigation ultimately leading to five month
suspension.
Per Curiam.
Joseph J. Kaupie
Attorney Misconduct License Suspension
A public reprimand would be a disservice to the
public interest and minimalize the severity of misconduct where there is a vast disciplinary history
of professional misconduct.
Per Curiam
Concurring: ABRAHAMSON, J
Dissenting: ROGGENSACK, C. J., joined by
ZIEGLER, J. dissent (Opinion filed). GABLEMAN,
J. dissents (Opinion filed).
2012-AP-1845 Office of Lawyer Regulation v.
David J. Winkel
Reciprocal Public Reprimand
Where appropriate, the disciplinary order of
another jurisdiction shall be imposed and
enforced within Wisconsin.
Per Curiam.
2013-AP-1769-D Office of Lawyer Regulation v.
Jordan E. Gall
Conditional Admission
The manner in which an outside jurisdiction
addressed subject attorneys case made it unnecessary to issue a show cause order.
Per Curiam.
2014-XX-817-BA Board of Bar Examiners v. J.E.G.
Attorney Sanctions Protective Order
David Braeger appeals the circuit courts order
that: (1) dismissed Braegers first amended
complaint against Edith Braeger; (2) sanctioned
Davids attorney on grounds that include pursuing this action for an improper purpose; and (3)
denied David leave to file a second amended
complaint. David also appeals the circuit courts
ruling that denied Davids motion for a protective
order. For the following reasons, we affirm.
Affirm. Per Curiam.
Official: Blanchard P.J., Lundsten, and
30
Kloppenburg, JJ.
Attorney Sanctions Protective Order
2014AP1890 David O. Braeger v. Edith Braeger
Ineffective Assistance of Counsel
Lavell Deangelo Love appeals an order denying
his motion for postconviction relief under WIS.
STAT. 974.06 (2013-14). He asserts that, in his
trial for first-degree intentional homicide, his
trial counsel was ineffective for requesting a jury
instruction on a lesser-included offense that the
jury ultimately agreed he committed.
2013AP1309 State of Wisconsin v. Lavell
Deangelo Love
CRIMINAL CASES:
Illegal Campaigning Activity Statutory
Interpretation
Investigation led by special prosecutor dismissed
for lack of factual or legal support. Court defines
political purposes as construed in Wis. Stat.
11.01(16). Reserve Judges accepting appointment as reserve judge, appointing a special prosecutor and convening a multi-county John Doe
proceeding not held to violate plain legal duty.
To be clear, this conclusion ends the John Doe
investigation because the special prosecutors
legal theory is unsupported in either reason or
law. Consequently, the investigation is closed.
Although the circumstances surrounding the
formation of the John Doe investigation raise
serious concerns, and although the appointment
of the special prosecutor may well have been
improper, such concerns do not satisfy the stringent preconditions for a supervisory writ.10 Put
another way, were we to grant the supervisory
writ in this case, we would risk transform[ing]
the writ into an all-purpose alternative to the
appellate review process, which we cannot do.
Id. Accordingly, we deny the supervisory writ and
affirm the decision of the court of appeals.
Supervisory Writ Denied
Circuit Court DecisionAffirmed
MICHAEL J. GABLEMAN, J.
Concurring: PROSSER, J., ROGGENSACK, C.J.
(joining Sections IV and V), ZIEGLER, J. (joining
Section IV) and GABLEMAN, J. (joining Section
IV) concur (Opinion filed). ZIEGLER, J. concurs
(Opinion filed).
Dissenting: ABRAHAMSON, J. concurs and dissents (Opinion filed). CROOKS, J. concurs and
dissents (Opinion filed).
BRADLEY, J., did not participate.
2013AP296-OA, 2014AP417-W through
2014AP421-W, 2013AP2504-W through
2013AP508-W
Three Unnamed Petitioners v. Gregory A. Peterson
Francis D. Schmitz v. Honorable Gregory A.
Peterson
Discovery Government Disclosure
Where governments failure to produce correct
and complete copies of discovery constituted
prejudice and grounds to vacate conviction for
possession of a firearm.
Adequate preparation of a defense includes the
ability to intelligently weigh ones plea options.
The denial of that opportunity here constituted
prejudice. See United States v. Muniz-Jaquez,
718 F.3d 1180 (9th Cir. 2013) (A defendant who
knows that the government has evidence that
renders his planned defense useless can alter his
trial strategy. Or he can seek a plea agreement
instead of going to trial.); Lee, 573 F.3d at 165
(Lee might have chosen to enter into plea negotiations with the Government if he had accurate
information about the strength of its case.)
Vacated and Remanded
Officials: FLAUM, KANNE, and SYKES, Circuit
Judges.
No. 14-3602 United States of America v. Joshua
R. Mackin
Commitment Petition for Discharge
Appellant Michael Alger appeals an order denying his 2014 petition for discharge from his WIS.
STAT. Ch. 980 commitment. Algers petition
included an expert report applying new research
concluding that Alger no longer met the criteria
for commitment under WIS. STAT. Ch. 980
Under the circumstances, we conclude Algers
petition is sufficient under WIS. STAT. 980.09(1)
and (2). Based on Dr. Subramanians report, which
reflects the opinions of an independent, agencyappointed expert, as well as the similar opinions
of Dr. Rypma, a jury would likely conclude Alger
no longer meets the criteria for commitment as a
sexually violent person. Accordingly, we reverse
and remand with directions for the circuit court
to hold a discharge trial pursuant to WIS. STAT.
980.09(3).
Reversed and Remanded. Per Curiam.

2014AP1871 State of Wisconsin v. Michael Alger
Certiorari Review Revocation
John R. Chic, pro se, appeals an order of the
circuit court denying his motion for clarification.
Chic alleged the existence of a latent ambiguity in an earlier order that resolved his petition
for certiorari review of a probation revocation by
remanding the matter to the Division of Hearings
and Appeals. The circuit court rejected his claim,
and we affirm.
2013AP1704 John R. Chic. v. Brian Hayes
Double Jeopardy Motion to Dismiss
7th Circuit court of Appeals
Appellant double jeopardy argument fails for lack
of showing that charges to which he pled and
was found guilty of were identical.
Affirmed.
Officials: WOOD, Chief Judge, ROVNER, Circuit
Judge, and SPRINGMANN, District Judge
14-3332 United States of America v. Joseph
Faulkner
Standard of Review Grant of New Trial
Appellant request for new trial granted by appellate court but reversed by Supreme Court due to
court of appeals flawed standard of review.
A reviewing court upholds the findings of fact
by a trier of fact unless they are clearly erroneous. The determination of whether a party has
met his or her burden is a matter of fact, not law.
Therefore, unless it is clearly erroneous, the court
of appeals is obligated to uphold the finding that
Kucharski did not meet his burden of showing by
the greater weight of the credible evidence that
he was not mentally responsible for the crimes. .
. . Applying the proper standard of review and not
disturbing the factual findings of the circuit court
concerning the burden of proof because they are
not clearly erroneous, we conclude that the court
of appeals erroneously exercised its discretion. In
this case the only reason offered by the court of
appeals for the new trial in the interest of justice
was that courts improper de novo weighing of the
evidence concerning the burden of proof on the
NGI plea of the defendant. When the evidence is
reviewed under the proper standard, there is not a
probability of a different result on retrial such that
a new trial in the interest of justice is warranted.
Reversed and remanded.
N. PATRICK CROOKS, J
Dissenting: BRADLEY, J., joined by

ABRAHAMSON, J. dissent (Opinion filed)
2013-AP-557-D State of Wisconsin v. Corey
Kucharski
Prior Convictions RICO Conspiracy
When actions under a prior conviction are related
to a later violation of a related criminal statute, a
defendant is rightfully subject to penalty enhancer.
Guarneros contention misses his mark in at least
two respects. First, our construction of Wis. Stat.
961.41(3g)(c) is not novel, but rather, a commonsense reading of the words the legislature chose.
Second, Moline explained that [i]f it is found to
be related to drugs, it is very clearly an offense
which may serve as the basis for an enhanced
penalty. Moline, 229 Wis. 2d at 42. Our statutory
interpretation herein is consistent with Moline
where the same plain language, relating to controlled substances that appears in 961.41(3g)(c)
was interpreted in Wis. Stat. 961.48(3), thereby
giving notice of conduct that could result in sentence enhancement. Accordingly, due process
does not bar enhancement of Guarneros conviction under 961.41(3g)(c).
Affirmed
PATIENCE DRAKE ROGGENSACK, C.J.
Dissenting: BRADLEY, ABRAHAMSON, J.J., dissent. (Opinion Filed.)
2013-AP-1753 & 2013-AP1754 State of Wisconsin
v. Rogelio Guarnero
Petition for Rehearing
If a discovery order is proper, Section 3731 of the
Criminal Appeals Act (18 U.S.C. Section 3731)
grants the court the power to decide whether an
indictment was properly dismissed.
Reversed and Remanded.
Officials: WOOD, Chief Judge, and BAUER,
POSNER, FLAUM, EASTERBROOK, KANNE,
ROVNER, WILLIAMS, SYKES, and HAMILTON,
Circuit Judges.
No. 14-1124 United States of America v. Paul
Davis
Statutory Interpretation
Dijon L. Carter appeals from a judgment of
conviction entered after he pleaded guilty to
possession of a firearm by a felon as set forth in
WIS. STAT. 941.29(2)(b) (2013-14).1 He argues
that the complaint against him should have been
dismissed because when he was adjudicated
delinquent for the predicate offense, the juvenile
court failed to inform him of the lifetime firearm

prohibition as it was required to do pursuant to
WIS. STAT. 938.341
Affirmed.
Officials: Kessler, Brennan and Bradley, JJ.
2014AP2707-CR State of Wisconsin v. Dijon L.
Carter
Insufficiency of Evidence
Appellant appeals decision of the circuit court
arguing that the evidence was insufficient on
the utter disregard for human life element. On
that element, the jury was instructed to decide
whether the defendants conduct showed utter
disregard for human life, after considering factors
such as what the defendant was doing, and why;
how dangerous the conduct was; and whether
the conduct showed any regard for life. We affirm
the verdict unless the evidence, viewed most
favorably to the State and the conviction, is so
insufficient in probative value and force that no
reasonable trier of fact could have found guilt
beyond a reasonable doubt. State v. Poellinger,
153 Wis. 2d 493, 501, 451 N.W.2d 752 (1990).
Credibility of witnesses is for the trier of fact. Id.
at 504.
Officials: Blanchard, P.J., Higginbotham and
Kloppenburg, JJ
2014AP1759-CR State of Wisconsin v. Damon
James Edward Howard
PLEAS AND SENTENCING

Breach of Plea Agreement
Warren Schabow appeals a judgment of conviction, entered upon no-contest pleas to one count
of armed burglary and two counts of theft, and
an order denying his postconviction motion for
resentencing or sentencing modification. Schabow
contends the State breached this plea agreement
generally by highlighting negative facts about
Schabow after the victim requested a five-to-ten
year prison sentence, and specifically by stating
the recommended two years initial confinement
was the very minimum period of initial confinement that should be considered. We conclude
that, evaluating the prosecutors remarks in their
totality, including the prosecutors repeated affirmation of the States sentencing recommendation,
there was not a material and substantial breach of
the plea agreement. Accordingly, we affirm.
Holding. Affirmed.
Officials: Hruz, JJ., Hoover, P.J., Stark
31

2014AP1254-CR State of Wisconsin v. Warren E.
Schabow
Motion for Plea Withdrawal
Kenneth E. Freeman appeals a judgment of conviction entered upon his no-contest plea to one
count of second-degree sexual assault of a child.
See WIS. STAT. 948.02(2) (2013-14). He also
appeals a postconviction order that denied his
motion for plea withdrawal. Because Freeman
does not show that the circuit court failed to
establish a factual basis for his plea, we affirm.
2014AP1318-CR State of Wisconsin v. Kenneth E.
Freeman
Motion to Withdraw
Darryl Pruett appeals an order denying his WIS.
STAT. 974.06 (2013-14) motion to withdraw
his guilty pleas to sexual assault of a child and
repeated sexual assault of the same child.2 He
argues: (1) the circuit court judge should have
recused himself because of bias; (2) his trial
counsel was ineffective for failing to present a
defense of not guilty by reason of mental disease
or defect (NGI); and (3) Pruett established sufficient reason to allow him to raise the ineffective
assistance of counsel claim despite the procedural bar set forth in State v. Escalona-Naranjo, 185
Wis. 2d 168, 181-82, 517 N.W.2d 157 (1994). We
reject these arguments and affirm the order.
2014AP1937 State of Wisconsin v. Darryl Wayne
Pruett
Operating While Intoxicated
Rachael Dickenson appeals her judgment of
conviction for operating a motor vehicle while
intoxicated (OWI), second offense, entered upon
her guilty plea following the circuit courts denial
of her motion to suppress evidence. For the following reasons, we affirm.
Affirm.
Officials: GUNDRUM, J
2015AP277 State of Wisconsin v. Rachael A.
Dickenson
Sentence Credit
Undetermined sentence issued by a circuit court
remains running when parole is revoked so sen-
32
tence credit can be accepted.

We conclude that because Obriecht had completed
the sentences for his misdemeanor convictions
when his parole from incarceration for the felony
was revoked and he first requested sentence credit, the only sentence to which sentence credit could
be applied was the indeterminate sentence for the
felony conviction. We also conclude that not all
of the days of Obriechts custody prior to his 2001
incarceration at Dodge Correctional Institution
were in connection with the conduct that led to the
felony sentence. We further conclude that although
Obriecht had 105 days of custody for which he had
not yet received sentence credit when his parole
was revoked, as we have explained, only 42 days
of custody were in connection with the course of
conduct that led to the felony sentence. Therefore,
42 of the 105 days of custody prior to Obriechts
2001 incarceration should have been applied to his
term of reincarceration for the felony conviction.
Wis. Stat. 973.155.
Reversed.
PATIENCE DRAKE ROGGENSACK, C.J
Concurring: BRADLEY, J., joined by
ABRAHAMSON and CROOKS, JJ. concur (Opinion
filed)
2013-AP-1345-CR State of Wisconsin v. Andrew
M. Ocbreicht
An attorney is required to give correct advice, not
speak in absolute terms as it relates to the potential outcome of litigation.
We conclude that Shata is not entitled to withdraw his guilty plea because he did not receive ineffective assistance of counsel. Specifically, Shatas
attorney did not perform deficiently. Shatas attorney was required to give correct advice to Shata
about the possible immigration consequences of his
conviction. Padilla, 559 U.S. at 369. Shatas attorney
satisfied that requirement by correctly advising
Shata that his guilty plea carried a strong chance
of deportation. Shatas attorney was not required to
tell him that his guilty plea would absolutely result
in deportation. In fact, Shatas deportation was
not an absolute certainty. Executive action, including the United States Department of Homeland
Securitys exercise of prosecutorial discretion, can
block the deportation of deportable aliens.
Reversed.
ANNETTE KINGSLAND ZIEGLER, J.
2013-AP-1437 State of Wisconsin v. Hatem M.
Shata

Trial counsels indication that a plea could result
in deportation was sufficient to advise client of
adverse immigration consequences.
[T]he immigration advice that Attorney Singh
provided to Ortiz-Mondragon was sufficient
under Padilla. Because the law is not succinct,
clear, and explicit with respect to whether
Ortiz-Mondragons substantial battery was a
crime involving moral turpitude, his trial counsel
need[ed] [to] do no more than advise [him] that
pending criminal charges may carry a risk of
adverse immigration consequences. See Padilla,
559 U.S. at 369 (emphases added). Counsel met
that requirement by advising Ortiz-Mondragon
that the plea could result in deportation, the
exclusion of admission to this country, or the
denial of naturalization under federal law.
ANNETTE KINGSLAND ZIEGLER, J.
2013-AP-2435-CR State of Wisconsin v. Fernando
Ortiz-Mandragon
Sentencing Guidelines Child Pornography
Even though appellant did not directly engage
in activity explicitly encompassed in 18 U.S.C.
2251(a), his conduct was consistent with the
notion that he sought out minors to engage in
sexually explicit conduct for the purpose of producing the live type of visual depiction that gratified his sexual tastes.
Affirmed.
Officials: POSNER, KANNE, and SYKES, Circuit
Judges
14-2557 United States of America v. Jason
Nicoson
Sentence Modification
David Townsend appeals a judgment convicting
him of two counts of possessing child pornography and an order denying his postconviction
motion to modify his sentences. He contends that
his sentence was based on inaccurate information regarding the type of treatment his therapist
offers, and that the court erroneously exercised
its discretion in refusing to impose sentences
less than the presumptive statutory minimum. For
these reasons, Townsend contends he is entitled
to a sentence modification. We reject Townsends
arguments and affirm the judgment and order

2014AP849-CR State of Wisconsin v. David J.
Townsend
Pleas & Sentencing Sentence Modification
WI Court of Appeals
Jamie F. DeJesus appeals from a circuit court
order denying his motion for sentence modification. DeJesus claimed that a new factor warranted
modification. The circuit court held the motion was
procedurally barred and, in any event, there was
insufficient evidence of a new factor. We affirm.
Decision.
2014AP2316-CR State of Wisconsin v. Jamie F.
DeJesus
Pleas & Sentencing Plea Withdrawal
Appellant Jeffrey S. Marisch appeals from a judgment convicting him upon his no-contest pleas
to two counts of felony attempted intimidation
of a victim and from an order denying his motion
for postconviction relief. The issue is whether
he should be allowed to withdraw his pleas to
correct a manifest injustice. We reject his contentions that the pleas are without an adequate factual basis and that his counsels inaccurate advice
caused him to misunderstand the charges intent
element. We affirm the judgment and order.
Officials: Neubauer, P.J., Reilly and Gundrum, JJ.
2014AP1975-CR State of Wisconsin v. Jeffrey S.
Marisch
INEFFECTIVE ASSISTANCE OF COUNCIL

Motion for Resentencing
Appellant Turnell Q. Lewkowski appeals a judgment convicting him of one count of armed robbery with threat of force. He also appeals the
circuit courts order denying his postconviction
motion without a hearing. Lewkowski argues that:
(1) the circuit court should have held an evidentiary hearing on his motion for resentencing; and (2)
he received ineffective assistance from his trial
lawyer during the sentencing hearing. We affirm.
Officials: Curley, P.J., Kessler, J., and Thomas
Cane, Reserve Judge.
2014AP1760-CR State of Wisconsin v. Turnell Q.
Lewkowski
Ineffective Assistance of Counsel Right to
Fair Trial

Where overwhelming evidence against appellant, and failure to make a showing of prejudice
to his case trivialized admission of statements
referencing appellants other criminal charges
into evidence, ultimately trumping his claim for
ineffective assistance of counsel and violations of
right to a fair trial.
Affirmed.
Officials: BAUER, MANION, and HAMILTON,
Circuit Judges.
14-1164 Cory Welch V. Randall Hepp
Appellan Yia X. Lee appeals a judgment convicting him of two counts of manufacturing or
delivering cocaine, as a second or subsequent
offense. He also appeals the circuit courts order
denying his postconviction motion. Lee argues
that he received ineffective assistance of counsel
from Attorney Robert DArruda. We reject this
argument. Therefore, we affirm the judgment of
conviction and order denying postconviction relief.
Officials: Curley, P.J., Kessler, J., and Thomas
Cane, Reserve Judge.
2014AP2545-CR State of Wisconsin v. Yia X. Lee
Plea Withdrawal Ineffective Assistance of
Counsel
Appellant fails to identify any meritorious claims
on appeal or any evidence of deficient performance on behalf of appellant trial counsel.
Officials: Hoover, P.J., Hruz and Sherman, JJ.
2014-AP-1570 State of Wisconsin v.
JURY INSTRUCTIONS
Jury Instructions Prejudicial Error
Appellant Mark J. Mey appeals circuit court decision arguing that the circuit court committed plain
error when reading the jury instruction for the
second and third counts, which were two of the
attempted homicide counts. Each time, the court
stated: To this charge, each of the defendants
before you has entered a plea of guilty, which
means the State must prove every element of
the offense charged beyond a reasonable doubt.
(Emphasis added.) Mey argues that this caused him
prejudice by leading the jury to believe that he had
already pled guilty, and that it need not deliberate
and reach a decision of its own. We agree with the
State that Mey was not prejudiced by this error.
We believe that most jurors would understand this

was an error by the court. The remainder of the
instructions made it clear that it was the jurys task
to determine the defendants guilt on all counts that
were the subject of the trial.
Officials: Sherman, Kloppenburg and Neubauer,
JJ.
2011AP1147 State of Wisconsin v. Mark J. Mey
Jury Instructions Precedent Clarification
Clarification of the legal standards in State v.
Wulff, 207 Wis. 2d 143, 557 N.W.2d 813 (1997)
and State v. Beamon, 2013 WI 47, 347 Wis. 2d
559, 830 N.W.2d 681 as related to harmless
errors in jury instructions. New standard applied
to case at hand.
Thus, when an erroneous jury instruction raises
the States burden by adding an element not
necessary for conviction, and the jury convicts,
the jury verdict will often sufficiently show that
the jury would have convicted if instructed on the
proper elements. However, if an erroneous jury
instruction omits an element or instructs on a different theory, it will often be difficult to surmise
what the jury would have done if confronted with
a proper instruction, even if the jury convicted
under the erroneous instruction. In other words,
in the latter situation it will be more difficult to
demonstrate that the error in the jury instruction
was harmless.
DAVID T. PROSSER, J.
Concurring: ABRAHAMSON, J., concurs. (Opinion
Filed.)
2014-AP-1099-CR State of Wisconsin v. Maltese
Lavele Williams
NGI Plea Jury Instructions
Appellant Aaron Schaffhausen appeals denial of
NGI defense arguing the circuit court erred by:
(1) erroneously telling jurors they would decide
whether a defense psychiatrist and psychologist
were qualified as expert witnesses and promising
to give the jury an instruction on expert qualifications, but failing to do so; and (2) denying the
jurys request during deliberations to provide it
with three expert witness reports. Schaffhausen
also seeks a new trial in the interest of justice.
We reject these arguments and affirm.
Reserve Judge.
2014AP2370-CR State of Wisconsin v. Aaron
Schaffhausen
33
Verdicts & Settlements
VERDICTS&
SETTLEMENTS
For a complete database of all verdicts and settlements

and to submit your own online visit
wislawjournal.com
Parties settle suit

over womens death
in automobile crash
Following mediation in a wrongful death
action, the parties collectively agreed to settle
all claims for $285,000. Kenosha County
Circuit Court Judge Wilbur Warren signed the
parties stipulation and order for dismissal on
May 14, 2014.
According to court documents, Farmers
Insurance Exchange was to pay $150,000; State
Farm Mutual Automobile Insurance Company
was to pay $100,000; and Unitrin Preferred
Insurance Company was to pay $35,000.
The net settlement came to $182,331.32,
after allocations of $95,000 for attorney fees,
$2,689.56 for costs, $3,548.34 for liens, and
$1,430.78 for funeral costs.
Case history (according to court
documents):
Dawn Freehoff was a passenger in a
vehicle driven by the defendant Jennifer
Kasparian on Jan. 22, 2011, and was
traveling southbound on 104th Avenue, near
Highway 50 in Pleasant Prairie.

At the same time, another defendant,
Micah Kimes, was driving east on State
Highway 50. Yet another defendant, Carroll
Sharpe, owned the vehicle Kimes was driving.
The vehicle Kimes was driving collided
with Kasparians, fatally injuring Freehoff.
Freehoffs estate and her husband, Steven
Freehoff, brought a wrongful-death lawsuit.
The plaintiffs asserted that Kimes was under
the influence of an intoxicant or controlled
substance at the time of the crash, and that
the defendants were negligent.
Farmers Insurance had issued a policy
that covered the vehicle owned by Sharpe;
State Farm had issued a policy to Freehoff,
providing uninsured and underinsured
motorist coverage; and Unitrin had issued a
policy covering the vehicle that was driven by
Kasparian and occupied by Freehoff.
Cristina Janda
For help submitting or to get an

email copy of the form, contact
Jenny Byington at 414-225-1803 or
jenny.byington@wislawjournal.com.
SETTLEMENT
$285,000
Case
name: Estate of Dawn Freehoff and

Steven Freehoff, et al v. Farmers Insurance
Exchange, Micah Kimes, Carroll Sharpe, et al
Case type: wrongful death
Court: Kenosha County Circuit Court
Case number: 11CV2303
Date of incident: Jan. 22, 2011
Disposition date: May 14, 2014
Injuries: death
Special damages: medical expenses, funeral
and burial expenses, compensatory and punitive
damages, spouses related loss of consortium
claim, attorney fees and costs
Plaintiffs attorneys and firm: Evan Claditis of
Hupy and Abraham SC, Milwaukee, and Jesus
Garza (attorney for Wisconsin Department of
Health Services)
Defendants attorneys: John Swietlik Jr. of
Kasdorf Lewis & Swietlik SC (representing
Unitrin), Milwaukee; Rachel Kiley of Bollinger
Connolly Krause LLC (representing Unitrin),
Milwaukee; Gino Alia of Alia DuMez Dunn
& McTernan SC (representing State Farm),
Kenosha, Christine Benson of Hills Legal Group
Ltd. (representing Kasparian), Waukesha;
and Douglas Carroll of Carroll & Cuthbert
(representing Kimes), Brookfield
Parties settle claims over child hit by car in crosswalk

On Jan. 15, Judge David
Hansher of the Milwaukee County
Circuit Court approved a $27,000
settlement to be paid by the
defendants insurer in a personalinjury case.
The settlement included
payments of $321.60 to Childrens
Hospital of Wisconsin, $2,666 to
the Medical College of Wisconsin,
$1,061.60 to the city of West Allis
Fire Department, $356 to Capital
Rehabilitation Clinic, and $704.62
to the Wisconsin Department of
34
Health Services.
The settlement also accounted
for $6,985.59 in attorney fees and
costs. The remaining $14,904.99
was to be placed in an interestbearing account until the minor
reached the age of 18 years.
Case history (according to
court documents):
Minor N.K. was walking in
a crosswalk on Nov. 19, 2013,
when she was injured by a
vehicle that hit her.
Cristina Janda
SETTLEMENT
$27,000
Case name: In re the matter of
court approval of settlement on
behalf of N.K., a minor
Case type: personal injury
Court: Milwaukee County Circuit
Court
Date
of incident: Nov. 19, 2013

date: Jan. 15, 2015
Special damages: medical
expenses
Plaintiffs attorneys and firm:
Nicholas Hermann (as guardian ad
litem and attorney), Milwaukee
Disposition
Parking lot settlement: Needs more salt

On May 28, 2014, Judge
Barbara Key of the Winnebago
County Circuit Court approved a
$10,000 settlement in a trip-andfall lawsuit.
The settlement included
$741.76 to cover the plaintiffs
attorney fees, and $5,000 to the
plaintiffs workers compensation
carrier as reimbursement for
medical expenses.
court documents):
On Jan. 18, 2012, Margie
Bricco suffered injuries from
falling in a parking lot on
Province Terrace in Menasha.
Bricco was employed by Salon
Eternity LLC.
At the time, the defendant,
David Jacek, was responsible
for salting and performing
other winter maintenance at the

parking lot.
The plaintiff, Hawkeye Security
Insurance Co., had issued a
workers compensation policy
covering employees of Salon
Eternity, including Bricco.
Pursuant to the policy, Hawkeye
stated that it paid $22,652.88 to
or on behalf of Bricco.
In its complaint filed in
September 2013, Hawkeye
argued that Jacek was negligent
in that he had improperly
inspected the parking lot, had
not maintained the parking lot
and had not kept the parking lot
reasonably clear of hazards.
Hawkeye also argued that the
negligence was a direct cause of
Briccos injuries.
Cristina Janda
SETTLEMENT
$10,000
Case name: Hawkeye Security
Insurance Co., et al v. David Jacek,
defendant
Case type: trip and fall
Court: Winnebago County Circuit
Court
Date of incident: Jan. 18, 2012
expenses, pain and suffering,
diminished capacity to fully enjoy life,
interest, costs and disbursements
Plaintiffs attorneys and firm:
Michael Emer of the Law Offices
of Thomas Stilp, Milwaukee
(representing plaintiff), and Brian
Hodgkiss, of Sigman, Janssen,

Stack, Sewall & Pitz (representing
involuntary plaintiff), Appleton
Defendants attorneys: Patrick
Coffey of the Menn Law Firm Ltd.
(representing Jacek), Appleton;
Gregory Knapp of Smith Amundsen
LLC, Milwaukee (representing
Jacek); Eric Darling of Schmidt,
Darling and Erwin (representing
Jacek), Milwaukee; Christine
Benson of the Hills Legal Group
Ltd. (representing Allstate),
Waukesha; and Thomas Cabush
of Kasdorf, Lewis & Swietlik SC
(representing Alpha Property),
Milwaukee
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35
(Not so) grate fall ends in settlement

Judge Lee Dreyfus Jr. of
the Waukesha County Circuit
Court signed an order May 13,
2014, approving a $35,000
settlement reached in a tripand-fall lawsuit.
The resulting money
was to be allocated as
follows: $15,000 for the
plaintiffs attorney fees and
costs, $10,000 to Travelers
Casualty and Surety Co. for
reimbursement of its workers
compensation lien, $3,333.34
to the plaintiff as a cushion or
credit against any additional
workers compensation claim,
and the remaining $6,666.66
to the plaintiff.
court documents):
On Nov. 6, 2009, at
approximately 5:30 p.m., the
then 57-year-old plaintiff Hugh
West was delivering a heavy

package to a manufacturing
plant, Bracemasters
International LLC, which is on
South Emmer Drive in New
Berlin, when he tripped over
a grate. The grate was 4 to 6
inches above the floor.
West hurt his right elbow in
the fall.
In his lawsuit against
Bracemasters International
and its insurer, Penn-Star
Insurance Co., West argued
that Bracemasters failed
to make the building safe
and failed to do what was
reasonably necessary to
protect the safety of visitors.
West also argued that
Bracemasters failed to inspect
the property and repair the
raised grate.
Cristina Janda
SETTLEMENT
$35,000
Case
name: Hugh West, Travelers

Casualty and Surety Co., and Aetna
Health and Life Insurance Co.
v. Penn-Star Insurance Co. and
Bracemasters International LLC
Case type: trip and fall
Court: Waukesha County Circuit
Court
Case number: 12-CV-033264
Date of incident: Nov. 6, 2009
Injuries: right elbow injury
expenses, pain and suffering,
loss of wages and loss of earning
capacity, compensatory damages,
costs, disbursements, and attorney
fees
Plaintiffs
attorneys: James
McCann of Hurt at Work SC,
Milwaukee (representing West), and
Phillip Theesfeld of Yost & Baill LLP
(representing Travelers Casualty and
Aetna), Milwaukee
Defendants attorney: Noelle
Muceno of Crivello Carlson
SC (representing Penn-Star),
Milwaukee
Plaintiffs expert: Dr. Mysore
Shivaram of Franklin Orthopedics
and Sports Medicine, Franklin
Defendants experts: Dr. Roger
Daley, orthopedic and hand
surgeon, and Timothy Galarnyk of
Construction Risk Management
Inc., Eau Claire

Search online at verdicts.wislawjournal.com
New reports every week.
36
Child nets settlement

following bite from dog
Milwaukee County Circuit Court Judge
Christopher Foley signed an order May 5,
2014, approving a settlement in a dog bite
case. According to the order, Liberty Mutual
Fire Insurance Co. agreed to pay $41,700
in full and final settlement of all claims,
compensatory or punitive.
The settlement included $10,577.48 for
attorney fees and costs, and $1,122.52 to
Humana as reimbursement of its subrogated
interest. The remaining $30,000 was to be
deposited in a 529 college savings plan for
the minor.
Case history (according to court

documents):
As M.K. was walking with her parents past
an outside seating area of Caf Hollander on
West State Street in Wauwatosa on Aug. 26,
2011, a customers dog, unprovoked, lunged
and bit her on the left cheek.
The minor was taken to the emergency
department of Childrens Hospital of
Wisconsin. Three 8-millimeter lacerations on
her left cheek were repaired with sutures.
Cristina Janda
SETTLEMENT
$41,700
Case name: In the matter of the approval
of minor settlement for M.K., a minor
Case type: personal injury
Court: Milwaukee County Circuit Court
Date of incident: Aug. 26, 2011
Disposition date: May 5. 2014
Injuries: dog bite on left cheek and scars
Special damages: medical expenses,
compensatory damages and disbursements
Plaintiffs attorneys and firm: Miles
Lindner of Hausmann-McNally SC, Milwaukee
Plaintiffs expert: Dr. Terrence Wilkins of
Plastic, Cosmetic and Hand Surgery SC,
Milwaukee
Join us as we recognize the rising stars in Wisconsins legal community

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When: Wednesday, Sept. 23
5:00-7:00.: Registration, cocktails,
dinner and dessert stations
7:00: Awards ceremony
Our up and Coming Lawyer honorees

have been practicing eight years or less
and are chosen from industry-submitted
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37
Practice Management
Recording Technology
Man vs machine in the courtroom
Eight years after becoming the first state
judge to embrace audio digital recording in
the court, Dodge County Circuit Judge John
Storck is exploring another groundbreaking
means of keeping records.
I propose we have a blended digital audiorecording/stenographic-recording system,
said Storck, presiding judge in Dodge County,
where he has been using the technology
since 2001 and has been conducting a formal
test of audio digital-recording technology for
the past eight years.
I see digital audio recording as a tool,
Storck said. I believe that every stenographic
courts reporter should also have available the
38
use of a digital audio-recording system. It can

be a backup, but you need to have this tool
integrated into the court system.
Yet for some, such as Washington County
Circuit Judge Andrew Gonring, the debate
over audio digital recording, often called
ADR, is far from settled.
Since the state first began testing out
the technology around 2006, only about 30
county units have adopted it; about half of
those are in Milwaukee County. Many of the
systems are used by court commissioners
overseeing high-volume, low-transcript
courts, according to the state courts office.
Use rates vary greatly by county. Dodge
Jessica Stephen | Special to the Wisconsin Law Journal
Countys courts, for instance, are equipped

with ADR systems. The circuit branches
there rely on Storcks hybrid stenographerrecorder system.
Storcks own branch goes even further,
making exclusive use of audio digital
recording. The systems, according to the
state courts office, also relied on by circuit
court judges in Bayfield, Grant and St. Croix
counties. Plans call for the technology to be
installed in Adams County courtrooms in the
next few months.
Not everyone is accepting of the changes.
I have no interest in piloting anything,
said Gonring, presiding judge in Washington
Practice Management
County. The up and trendy thing is to buy

into all these changes in the court system,
and I second-guess those things.
Gonrings biggest gripe is that digital
recording could be seen as a replacement for
court reporters, otherwise known as people.
I consider my court reporter an integral
part of the Branch 4 team. I rely on her for
recall of individuals, not to mention being
able to provide me a rough transcript in
just minutes. And theres a lot to be said for
immediate recall of a portion of the record,
whether its a particular question asked or a
particular response. I dont know how you do
that with a machine.
You do it by replaying the audio, which
can capture not only the words spoken but
the way in which they were said, said Judge
Richard Kopf, senior U.S. district judge for
the District of Nebraska.
Like Storck in Wisconsin, Kopf has become
a champion of adding the latest technology

to his courtrooms. He was chief judge
when his district went paperless, making
his the first federal court in the nation to
adopt that change. He was also quick to see
the opportunities offered by audio digital
recording, which he began using in 2004.
And, most recently, he has been supportive of
tests conducted in Lincoln, Neb., to learn the
advantages of turning to video equipment to
record court proceedings
I hope within my lifetime well be able
to upload video and the court would be
controlling the cameras, Storck said.
For Kopf, who first took the bench in 1987
and served as a U.S. magistrate for five years
before being appointed a district judge in
1992, its all about transparency.
Its always seemed to me that the way for
people to better understand the courts is to
see how the sausage is made, and the way
to see how the sausage is made is, I think, to
hear what actually happened.
So, every day, whether hes in trial or engaged
in sentencings or hearing motions, Kopf uploads
the days audio recordings to an electronic-filing
system that the public can access through the
online federal database PACER.
Ive been completely satisfied, Kopf said.
And the attorneys who have spoken to me
(about the system) are almost uniformly happy
with it because they can pick it off CM/ECF
without having to go through a court reporter.
And if they really want a transcript, they can
have somebody in their office transcribe it or
they can hire their own transcriber.
The response has been similar in Dodge
County, where Storck said the only concern
attorneys have raised is whether the
recording system might pick up confidential
conversations held at counsel tables.
Storck said, though, that in the 14 years
he has used the technology, he has never
heard a complaint about an ostensibly private
conversation being intercepted. To prevent
such mishaps, he reminds attorneys to step
back from or mute the microphone when they
are making remarks that are not intended for
wide circulation. Signs posted throughout the
courtroom also reinforce that message.
As for judges, Storck said, If you ask the
judges who do have (ADR systems), I think
to the person theyd tell you they wouldnt go
back. Id encourage judges and counties to
look at it.
In fact, Storck, who has relied solely on digital
audio recording for eight years, is developing

procedures to guide those who would adopt
ADR. In the meantime, he said, hell continue to
advise anyone who is interested.
Hes more than happy, he said, to explain
how using ADR has helped his county
eliminate overtime for paid-by-the-hour court
reporters, how the county has only had to
call for a backup stenographer once in eight
years, and how court reporters have learned
to rely on their audio recording counterparts
to free up time for making transcripts.
Listen Up
All this is not to say its a perfect system.
Kopf readily acknowledges that the startup
costs can be large. Those costs can quickly
undermine the estimated $110,000 in overall
savings his courts have seen from adopting
ADR; at the federal level, it can cost nearly
$40,000 to equip a courtroom with ADR,
although Storck estimated the state could set
up a system for closer to $5,000 or $6,000
per court.
Kopf also predicted increasing resistance
from what hes dubbed the court reporter
mafia which is his way of referring to the
many judges who go to great lengths protect
their staff members.
You do have employees who are at risk,
conceded Kopf, who estimated nine out of
94 federal district courts only 61 courts in
total are using ADR systems. So, this is
going to be a slow process.
And yet, he said, change must come.
Not to be flip, but welcome to the digital
world. Im sympathetic, but I think the
economies and the improved product are
going to drive the use of court reporters
down. I think there will be jobs for court
reporters, but I think their jobs are going to
be different.
On that point, even Gonring can agree. Almost.
I suspect at some point someone is going
to say, Its cheaper to have this machine
than a certified court reporter, and that may
control things, Gonring said. There may be
a time when somebody says, We dont have
enough certified court reporters, and you
have to go to a machine.
But until that day comes, the benefits of a
live court reporter outweigh having a machine
recording the record, he said. I just really
do believe that a live court reporter is
essential to the courtroom litigation process
and the orderly presentation of evidence.
39
People and Places

WHOS DOING WHAT
AWL announces
Board of Directors
The Association for Women Lawyers has announced its
new Board of Directors. Members, who took office July 1,
and will serve for one year. They are:
President: Caroline Spongberg, Northwestern Mutual
President-Elect: Malinda Eskra, Wisconsin Court of
Appeals
Secretary: Katie Perhach, Quarles & Brady
Treasurer: Shannon Brusda, Godfrey & Kahn
Past President: Laura Kwaterski, U.S. Attorneys Office,
Eastern District
Director of Membership: Patricia Jenness, Michael
Best & Friedrich
Director of Professionalism: Linda Grady, The Strategic
Financial Alliance
Director of Programs: Jennifer Hong, U.S. District Court,
Eastern District
Director of Special Events: Kelly Noyes, von Briesen
& Roper
Fetherston named
shareholder at firm
Peterson, Johnson & Murray
has named attorney Ryan
Fetherston a shareholder of
the firm.
Fetherston has been with the
firm for nine years and focuses
his practice in civil litigation and
workers comp.
honored by the Pulp and Paper Safety Association with its

Distinguished Service Award.
The award is the PPSAs highest honor for service and
recognizes leadership and service within the association.
Casimir Laska has rejoined Michael Best & Friedrichs

Intellectual Property Practice Group as senior counsel.
Laska is based in the firms Waukesha office.
DeWitt Ross & Stevens has announced its inclusion in

the 2015 IAM Patent 1000.
DeWitt received its recommendation from IAM Patent
1000 for its depth of expertise, market presence and level
of work.
Joseph Miotke and Charles Sara were both honored as
leaders in the IP field.
Goodwill names Kalscheur

to Board of Directors
DeWitts Frazer
honored by MBA
Laska rejoins Michael Best
Goodwill Industries of Southeastern Wisconsin Inc.

recently named Brad Kalscheur, partner in the Wealth
Planning Services Practice Group at Michael Best &
Friedrich, to its Board of
Directors.
Kalscheurs practice includes
all areas of estate and business
succession planning, as well as
the structuring and taxation of
partnerships and limited liability
companies.
Kalscheur
Michael Best
partners
named leaders in their field
Fetherston
Attorneys
named to leading lawyers list
Eighteen partners at Michael Best & Friedrich have

been recognized as Leaders in Their Field by Chambers
USA.
Additionally, the Labor and Employment Practice
was ranked in Band 1 (the highest ranking available) in
Wisconsin for the ninth consecutive year.
Hupy and Abrahams Jason Abraham and Todd Korb

have been named to M Magazines Leading Lawyers list.
Michael Best earns

high patent ranking
Hupy earns award

from the MBA
Michael Best & Friedrich has been ranked in the

top 20 percent of all law firms for patent practices by
Intellectual Property Today magazine in a recent issue of
the publication.
The patent list, composed of 271 law firms from across
the U.S., is ranked according to the number of utility
patents issued in 2014. Michael Best secured the issuance
of 915 total patents for its clients in 2014, including 829
utility patents and 86 design patents.
Michael Hupy, president of Hupy and Abraham, was

recently honored with the Milwaukee Bar Associations
Distinguished Service Award.
The MBA presents the award to a member of the bar
whose extraordinary service over the years has helped to
support and better the legal profession.
Wachewicz, Coley join

Davis & Kuelthau
Anthony Wachewicz III has joined Davis & Kuelthaus
Labor and Employment Team as senior counsel and Sherry
Coley has joined the firms Litigation Team as senior
counsel.
Both attorneys are based in the firms Green Bay office.
Hobbs earns service award
Murphy joins Ruder Ware

Ruder Ware has announced the addition of
Shaughnessy Murphy to its Eau Claire attorney team.
Murphy advises clients on a wide variety of business
transactional matters, including the organization
of business entities; financing, sale and acquisition
transactions; and related matters. He also assists clients
who are involved in general business litigation matters.
Michael Best & Friedrich partner Eric Hobbs has been
40
DeWitts IP Group
earns inclusion honor
DeWitt Ross & Stevens

Douglas Frazer has received
the Messenger Award from the
Milwaukee Bar Association,
which recognized the best
article published in the MBAs
Messenger Magazine in 2014.
Frazers article, The
Cranberry Brief, traced the
Frazer
historic roots of Wisconsins
protective cranberry growers law.
WHDs practice groups

earn Chambers recognation
Whyte Hirschboeck Dudek has announced that its
Corporate/M&A, Intellectual Property, Litigation (General
Commercial), and Real Estate practices have been ranked
among the best in Wisconsin by Chambers and Partners.
Additionally, Corporate/M&A attorneys John Emanuel,
Eric Lenzen and Richard Silverthorn; Intellectual Property
attorney Gina Carter; Natural Resources and Environment
attorneys Jennifer Drury Buzecky and Donald Gallo; Real
Estate attorneys Brad Dallet, Nathaniel Hoffman and
Hal Karas; and Health Care attorney Patrick Coffey each
earned individual recognition in the Chambers USA guide.
Steiner rejoins
Halling & Cayo
Attorney Roberta Steiner has returned to Milwaukeebased Halling & Cayo.
Steiner practiced at Halling & Cayo for 15 years before
starting her own practice at Steiner Law, which she
continued for 10 years.
Karch named co-leader

of WHD practice group
Paul Karch has joined Andrew Schlidt and Eric Lenzen
as co-leaders of Whyte Hirschboeck Dudeks Corporate and
Finance Practice Group.
Karch is a shareholder in WHDs Madison office where
he leads the Agribusiness Team and is a member of the
Corporate Transactions, Emerging Companies and Health
Care Law teams.
Ryan Kromholz & Manion, S.C.
Attorney
Molly Lavin
Intellectual
Property
Counselors
Attorney
Jesse Blocher
Congratulations on being certified as

Civil Trial Specialists by the
National Board of Trial Advocacy.
Over 75 Years of Helping Wisconsins Injured
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in recently instituted patent review processes at the
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41
Closing Arguments
PRO | SAME-SEX MARRIAGE
QUESTION:
BAN SHOULD GO
Should language banning same-sex marriage
n June 26, the U.S.
be removed from the state constitution?
Supreme Court held,
once and for all, that
BACKGROUND:
same-sex couples have equal
In Obergefell vs. Hodges, the U.S. Supreme Court ruled on June 26 that same-sex couples
rights to civil marriage under
throughout the country have the right to get married. In Wisconsin, the ruling immediately gave
rise to questions about the ban on same-sex marriage contained in the state constitution. The
the equal protection and due
legality of that prohibition had already been struck down by a federal judge just over a year
process clauses of the U.S.
before, yet the language establishing the ban remains in the states foundational charter. As
Constitution. There is no going
had happened following the federal courts ruling, the U.S. Supreme Courts decision in June
back.
quickly led to calls for an amendment to remove the ban. Some say, though, that an amendment
would serve no purpose because the U.S. Supreme Courts ruling is the law of the land.
The 2006 anti-marriage
amendment to the Wisconsin
Whats more, several large conventions were
Constitution cannot be enforced and has no legal
canceled and the state faced countless boycotts.
effect. Thus, while repeal is not necessary from
Lawmakers quickly retreated. With Wisconsins
a legal point of view, it should be done. This ugly
economy trailing so far behind our neighbors, we
stain of second-class citizenship for lesbian, gay
cannot afford to alienate businesses.
and bisexual people and their children ought to
Whether to delete this embarrassing artifact is
be removed from the Wisconsin Constitution.
ultimately up to the voters of Wisconsin. Polling
Whether intended or not, the amendment
over the past nine years demonstrates that
sends the message to married same-sex couples
Wisconsin voters have quickly retreated from the
and their children that their lawmakers and fellow
prejudices that led to enactment in the first place.
citizens do not value them. These families hear
If the question were put before voters today, it is
that even though the U.S. Supreme Court is
highly likely that they would vote to repeal.
demanding that the state treat all of its citizens
To remove the amendment, we must go through
equally, we go along grudgingly, and would not
the same process it took to adopt it: The proposal
recognize these families if we were not required
must be approved in two successive sessions of
to. Although people are certainly entitled to their
the state Legislature and then placed
own opinions, it is mean-spirited to house such
on a statewide ballot. The current
sentiment in our constitution.
Legislature should begin that process
Retaining the amendment is also bad for
by immediately passing the proposed
business. That same message of disrespect and
resolution calling for repeal.
hostility to married same-sex couples and their
Tamara B. Packard is a partner
children is broadcast to businesses considering
at Cullen Weston Pines & Bach.
Tamara B. Packard
moving to Wisconsin or doing business in
Wisconsin. Just a few
months ago, in response
to a legislative proposal
thought to be hostile to
LGBT people, Indiana
lost a $40 million
headquarters expansion
bid from Angies List.
The project would have
added 1,000 jobs.
42
Closing Arguments
CON | STATES SAME-SEX BAN SHOULD REMAIN
onsigning dissent to the memory hole
is not the way free people do business.
Justices dissents raise profound
questions, challenge orthodoxy, frame continuing
debate, and often become tomorrows law.
Wisconsin citizens overwhelmingly approved the
constitutional amendment in 2006 as a pre-emptive
constraint against judicial fiat, and it now serves
as their continuing dissent against exactly that. It
should no more be stricken from the Wisconsin
Constitution than the Obergefell dissents should
be stricken from the United States Reports.
The first objection is to Obergefells imperium. Rule
of laws essence is prescription in language. What is
written by the legislature today is to be understood
and followed by the judiciary tomorrow. But
convinced they are more wise and compassionate
than anyone in human history, the majority derive
their holding, not from constitutional text, but
from their powers of invention. They admit their
constructions of liberty and equality have no
basis in history, but impose new meanings anyway.
The arrogance is breathtaking. Justice Scalia
calls it hubris and astounding. Chief Justice
Roberts asks, Just who do we think we are?
Reminiscent of Wisconsins resistance to the
court in the Booth case, Scalia even extends a
remarkable invitation to push back, warning that
the court has taken one step closer to being
reminded of our impotence.
Second, Obergefell is grounded on logical
fallacies. Virtually all cultures and courts have
acknowledged that marriage serves two essential
purposes: fulfilling the man and woman who
comprise it, and rearing the children they
produce. Now Justice Kennedy declares children
non-essential because some heterosexuals do
not or cannot have children. But if that is correct,
then fulfillment is not essential either divorce
being proof enough that many individuals do not
or cannot find fulfillment. Worse, citing Loving as
an authority, Kennedy reflexively equates race and
sex, despite the numbingly obvious distinction
that in bearing and raising children, difference in
race is irrelevant, difference in sex is essential.

Third, Obergefell crosses a profound
jurisprudential divide. Kennedy no longer asks
whether law should acknowledge marriage as a prepolitical institution that, as Roberts notes, arose in
the nature of things. Rather, the constitution now
entitles a person to create his own reality grounded
in sexual autonomy, and requires government
to dignify and support it. There is no limiting
principle other than the predilections of whatever
judges happen to hold power at the moment.
Fourth, the majority substitutes its own
reasoned judgment for that of Wisconsin citizens.
Children are ends in themselves, not means to
adult fulfillment, and marriage laws have always
acknowledged biological reality and institutionalized
the norm of children being raised by their own
parents. But in equating same-sex unions and
marriage, Obergefell confirms a mothers power to
subordinate her sons need for his father to her own
need for a same-sex partner. It lays the groundwork
for limiting or denying a childs right to be reared by
her own parents, and for diluting or ending official
preference for the natural biological unit on which
civilizations have rested time out of mind.
Last, Obergefell raises grave concerns for
rights of conscience and free exercise. Kennedy
labels disagreement with the new orthodoxy
as disrespect, stigma and injury. So is
supporting man-woman marriage animus? Were
the 1.2 million Wisconsin citizens who voted yes
all bigots? Will the courts permit non-compliance
with demands to violate conscience or faith?
If bakers and photographers can be forced to
create and express same-sex messages that
violate conscience, can an Orthodox deli or Halal
butcher be forced to cut pork and cater a barbeque
during Ramadan or Sabbath? Or a vegan ad agency
be forced to create a Got Milk
campaign? Lets hope not.
The amendment is a continuing
basis for tolerance and debate. It
should remain.
Michael Dean is a lawyer from
Brookfield.
Michael Dean
43
These Failing Metal-on-Metal Hip Implants

May Be Causing Problems for Your Client:
Stryker Rejuvenate Hip Implant
Stryker ABG II Hip Implant
DePuy ASR XL Acetabular System
In 2012, Stryker Corporation voluntarily recalled

its Rejuvenate and ABG II metal-on-metal modular neck hip systems because of problems with early
implant failure. However, these Stryker implants
are not the only devices that have been recalled or are
causing problems; several other metal-on-metal
(MOM) hip implants are prone to early failure, including the models listed above, putting patients at
risk of requiring surgical removal and replacement.

The signs of trouble with any hip implant include
swelling, pain and difficulty walking. Persistent
symptoms can signal a loose implant, fracture of
the bone around the implant or dislocation of the
implants ball and socket. In addition, due to the
construction and design of MOM hip implants,
microscopic chromium and cobalt shards can
enter the blood stream as a result of MOM contact.
It is possible to have elevated chromium and cobalt
levels with no symptoms, no groin pain, no hip
pain and no adverse reactions. Consequently, hip
implant recipients should follow up with their
physician even if they are not having symptoms.

Some manufacturers have been issuing consent forms
to patients, which authorize these companies to obtain your clients medical records and to carry out
tests on any removed implant product components.
Many physicians are asking their patients to sign

these consent forms before consulting with an
attorney. In order to make sure that these
individuals do not prejudice their right
to make a claim against the company, it is
important for them to consult with an
attorney before signing any documents associated with their potentially defective implant.
Referring Your Clients to the Right Law Firm
If you represent a client who has had a hip
replacement and there is a suspicion that the hip
joint has been recalled or is defective, Habush
Habush & Rottier S.C. is ready to work with you
to ensure the best possible result for your client. Our
dedicated team of product liability attorneys and
professional staff has over 300 years of combined
experience fighting for and successfully protecting
the rights of those injured by defective products.
Our law firm has a long history of working closely
and cooperatively with referring counsel. We are
flexible with regard to the participation by referring
counsel, as well as the arrangement regarding payment of co-counsel fees and costs. Our primary goal is to reach a mutually agreeable relationship designed to best advance your clients case.

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VOLUME29 | NUMBER8

Whos Doing What

Meet Our Newest Team Members

Anthony S. Wachewicz, III

BROOKFIELD | GREEN BAY | MADISON | MILWAUKEE | OSHKOSH

August 2015 Volume 29, No. 8

Attorneys uneasy about using bar dues for political reasons

34 Verdicts & Settlements

40 People and Places

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