Wisconsin Supreme Court Research Articles

Wisconsin environmental insurance coverage law is back on traditional, pro‐insured road

Wisconsin has a long history of being pro‐insured in insurance coverage matters. Wisconsin courts have been particularly firm with insurers who fail to defend their insureds. When insurance coverage issues began to arise in the environmental context, there was every reason to believe that Wisconsin courts would join the numerous other courts around the nation finding coverage under comprehensive general liability (CGL) policies for environmental claims. However, the Wisconsin Supreme Court detoured from its normal pro‐insured position in its decision in City of Edgerton v. General Casualty. In Edgerton, Wisconsin's highest court ruled that an insurer had no duty to defend because letters to potentially responsible parties (PRP letters) from the U.S. EPA or the Wisconsin Department of Natural Resources are not “suits”; and that CERCLA response costs are not “damages”; under CGLpolicies. The supreme court has limited Edgerton, finding in Hills and WPS that an insured that has been sued for reimbursement of response costs incurred by another party is subject to a “suit seeking damages”; and entitled to a defense. The state of the law prior to Edgerton, the impact of Edgerton, and recent decisions in Hills and WPS limiting Edgerton are discussed in this article, as well as other significant Wisconsin cases affecting insurance coverage for environmental claims.

Hate Speech and Hate Crimes: Campus Conduct Codes and Supreme Court Rulings

The authors report on a study designed to assess the use of language prohibiting hate crimes in campus codes of conduct and to determine whether such language unlawfully regulates speech or behavior, or both. The familiarity of senior student affairs officers with the R.A.V. and Wisconsin Supreme Court decisions is also assessed, along with the perceived applicability and actual use of the decisions in revising codes of conduct on college campuses.

Hate Speech and Hate Crimes: Campus Conduct Codes and Supreme Court Rulings

The authors report on a study designed to assess the use of language prohibiting hate crimes in campus codes of conduct and to determine whether such language unlawfully regulates speech or behavior, or both. The familiarity of senior student affairs officers with the R.A.V. and Wisconsin Supreme Court decisions is also assessed, along with the perceived applicability and actual use of the decisions in revising codes of conduct on college campuses.

The Wisconsin Supreme Court Responds toLocas

Abstract The Wisconsin supreme court recently decided a case of national significance that could influence other state courts in applying the critical federal takings law created in the case of Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), 44 ZD 302. In Zealy v. City of Waukesha, 548 N.W.2d 528 (Wis. 1996), 48 ZD 335, decided June 4,1996, the Wisconsin supreme court faced the question of whether Lucas overruled its 1972 landmark decision in Just v. Marinette County, 201 N.W.2d 761 (1972), 24 ZD 319 (upholding shoreline zoning). The Zealy case reaffirmed that zoning a portion of a parcel of property in order to protect wetlands does not constitute a regulatory taking of that property requiring compensation under the United States and Wisconsin constitutions.

Messages, motives, and hate crimes

James Weinstein, Jeffrie Murphy, and Larry Alexander all effectively contribute to the conclusion that statutes enhancing the criminal penalties for crimes committed with the motivation of racial hatred do not for that reason present plausible First Amendment issues. If the basis for the First Amendment objection is seen to reside in some supposed impropriety in enhancing punishment based on motive because punishment for motives is tantamount to punishment for thoughts, all three appear to agree that that argument, the views of Susan Gellman and the Wisconsin Supreme Court notwithstanding, should not be taken seriously. Alexander, however, argues that there is a different type of First Amendment concern than the one that drives Gellman and the Wisconsin Supreme Court, and that this First Amendment concern, especially after R.A.V. v. City of St. Paul,(1) should indeed be taken seriously. It is that argument that I want to address here. It is not clear whether Alexander intends to endorse the result and the reasoning in R.A.V., or just to make an argument from positive law--that if R.A.V. is the law, then there is a legal problem. But let us give the Supreme Court the benefit of Alexander's argument (which is much better than the one in justice Scalia's majority opinion), and consider whether R.A.V., as rehabilitated by Alexander, and as reflecting a particular strand of First Amendment thinking, leads to the conclusion that penalty-enhancement is problematic under the First Amendment. So what is Alexander's argument? As I understand it, his argument, with its roots in United States v. O'Brien,(2) starts with the premise that it is presumptively impermissible under the First Amendment for a governmental entity to proscribe otherwise proscribable conduct because of a governmental concern (including both legislative motive(3) and statutory purpose, which are not the same thing) with the message sent out by (the communicative impact of) the proscribed conduct. Although the state may ban flag burning as part of a general proscription on public burning, it may not ban flag burning because of a concern about the effect of the message sent out by the act of burning on someone seeing the burning or hearing about it.(4) From this premise, Alexander argues that similar features are presented by a statute concerned not with assaults simpliciter (the analogue of a statute prohibiting all public burning), a statute which would encompass, incidentally, racially motivated assaults, but with assaults committed because of a motive of racial hatred. To focus on race-based assaults rather than assaults, he argues, is relevantly similar to focusing on flag-burning rather than burning, and thus the O'Brien argument,(5) culminating in R.A.V., presents more of a problem for the penalty-enhancement statutes than may at first sight appear. Even if we take O'Brien and the principle it has spawned as a given, however, I believe that Alexander is mistaken, and I believe his mistake stems from failing to recognize that the concern with communicative impact is only empirically and contingently related to the greater includes the lesser line of argument, and that the invalidity of that argument is an issue only when there is also a governmental concern with communicative impact. In order to isolate the issue, let us return to flag-burning. Because flag-burning could under existing doctrine be prohibited by a more encompassing statute having different motives (such as preventing pollution or the spread of fires), some might think that any less encompassing statute must necessarily be permissible. This is the greater includes the lesser argument, and Alexander and I agree that it is unsound, largely because neither the doctrine nor sound constitutional principles support it. After all, no one would contend that the power to exclude all seventeen-year-olds from the franchise would allow the state to extend the franchise to male but not female seventeen-year-olds. …

The ADL hate crime statute and the first amendment

James Weinstein makes the case admirably for the ADL statute's consistency with the First Amendment.(1) He disposes rather summarily of Susan Gellman's argument that the ADL statute creates a thought crime.(2) He points out that the statute does not increase punishment because of the defendant's thoughts but because of the defendant's motives.(3) And increasing punishment because of motive is not unusual, unjustified, or unconstitutional.(4) Increasing the punishment for, say, assault because it is committed with a bigoted motive is no more problematic than decreasing the punishment for homicide because it is committed out of mercy. Having disposed of Gellman's arguments (and the similar ones of the Wisconsin Supreme Court), Weinstein delves more deeply into the issue. A bigoted motive may be used to enhance the punishment for a crime if it is relevant to interests that the state may legitimately consider in setting punishment.(5) What are those interests in the case of bigoted motives? Weinstein discusses five separate state interests,(6) but the most important ones boil down to tailoring the punishment to the gravity of the crime for either retributive or deterrent purposes. And why is an assault or other similar crime more serious when it is committed with a bigoted motive? One answer, the purely retributive one, is that it reflects a more flawed moral character than would the same crime committed for non-bigoted motives.(7) The other answer is that the crime causes more social harm when accompanied by a bigoted motive, either in terms of added insult to its victims or in terms of the in terrorem effect on others of the victims' race, sex, and so on.(8) But here matters become much dicier, and the first amendment, put to rest quite easily at the outset, begins to creep back into the picture. Weinstein sees the free speech issues. The pure retributive justification for enhanced punishment--that hate crimes reflect a more serious character defect than similar crimes committed from non-bigoted motives--would be viewed as supporting punishment for beliefs, which would make the justification quite problematic given the First Amendment.(9) Weinstein does not think that the retributive justification does amount to punishment for beliefs, but he is uncomfortable with it and turns quickly to the other justification, that of greater social harm.(10) I should say a word about why one might argue that the pure retributive justification is problematic. The retributive argument connects motives accompanying crimes with character traits, which are in turn assessed in terms of the (ill) desert those traits merit.(11) Is punishment for one's character (as reflected in one's acts) punishment for one's beliefs? Surely there is a case that it is. If a character trait consists of certain dispositions to act in particular ways, those dispositions can be translated into a set of beliefs about what is true and what is valuable. If one is punished an extra amount for acting with a bigoted motive, where the justification is the pure retributive one that the bigoted motive reflects a morally depraved bigoted character, then one is being punished the extra amount for being a bigot. And if one is being punished for being a bigot, one is being punished for believing what bigots believe. So Weinstein is right to feel uneasy about the pure retributive justification. The deep issue here is whether retributivism, with its focus on moral desert, can coexist with liberalism and the primacy it gives to autonomy, even if the crimes to which retributive punishments attach are themselves consistent with liberalism.(12) The First Amendment is an adjunct of liberalism. If liberalism coexists uneasily with retributivism, it would not be surprising to discover the doctrinal manifestation of this uneasy relation in the First Amendment. Weinstein places primary justificatory emphasis on the extra social harm caused by hate crimes: psychic injuries and harms due to threats of further violence. …

At Law: Where Is the Sure Interpreter?

The continued efforts of courts and legislatures to answer Sandburg's question about the sure interpreter - especially for those incompetent patients who have never been capable of expressing preferences or appointing a health care agent - have borne notable fruit in recent months. Like the Indiana court in the Lawrance case,[1] the New York State Task Force on Life and the Law, in a March 1992 legislative proposal, favored families as surrogate decisionmakers.[2] The following month, the Wisconsin Supreme Court focused on decisionmaking by court-appointed guardians on behalf of patients in the persistent vegetative state (PVS).[3] In addition, the Wisconsin court addressed another major issue - whether PVS patients are handicapped for the purpose of antidiscrimination laws - with which the Indiana court had also wrestled in Lawrance. Families and Substituted Judgment To complement existing law in New York that permits people to name health care agents, the task force proposed legislation comparable to that enacted in the past several years in about twenty other states, addressing the common situation in which a patient has failed to name an agent before becoming incompetent. These so-called acts formalize the age-old custom of turning to the next of kin for guidance about treatment when a patient is unable to make decisions personally. The priority list recommended in New York is similar to that in most states - it begins with court-appointed guardians, moves on to spouse, adult children, parents, and adult siblings, and concludes with close friends and extended family. The New York proposal is unusual, however, in ranking second any person who the others on the list have mutually agreed should act as the surrogate. By permitting flexibility in the hierarchy, the act recognizes that one person may live closer to the patient, may have professional medical training, or may be the one who generally handles family matters. In sum, the others on the list might want that person to be the health care surrogate. Families prone to dispute may also find that if they can mutually agree on a particular person as the surrogate, better and more acceptable decisions will be made than if they all attempted to arrive at each decision together. At the heart of the task force's recommendation is the view that families are better surrogates for patients than are courts or other entities. This conclusion is in line with the recent report of a council sponsored by the National Center for State Courts, which took the view that decisions about life-sustaining treatment ought not be routinely reviewed by the courts.[4] The increasingly formal prominence given to the role of families in making treatment decisions for incompetent patients is based on two separate assumptions. First, when a patient's wishes are knowable (albeit not reduced to specific instructions that precisely cover the instant circumstances), it is thought that families are most likely to understand those wishes and the patient's general values and preferences, and that they are also best able to apply these wishes, values, and preferences to the medical circumstances. Of course, the intimate connections and history that typically bind members of a family together can be a weakness as well. Family members may have significant emotional and financial conflicts, and they may be prone to confuse their own values and preferences with those of the patient. These concerns have at least some legitimacy; as several studies have shown, relatives (like treating physicians) are not very good at predicting what treatment options a patient would actually prefer. Nonetheless, the alternative - namely, greater governmental involvement in treatment decisionmaking, ultimately including judicial review of all decisions regarding treatment of incompetent patients - would be worse. The courts do not have the resources for such proceedings, nor is there any reason to think that they would come to better decisions in the vast majority of cases. …

Marshall's Plan: The Early Supreme Court and Statutory Interpretation

In Wisconsin Public Intervenor v. Mortier,1 an innocuous case of the 1990 Term involving bugs, molds, and mice (or rather, how to kill them), two Supreme Court Justices engaged in a sharp debate over the Marshall Court's approach to statutory interpretation. Mortier raised the question of whether the Federal Insecticide, Fungicide, and Rodenticide Act,2 which sets labeling and registration standards for pesticides, preempted states and localities from regulating the use of pesticides in their jurisdictions. The Wisconsin Supreme Court held that the Act did preempt local regulation.3 Although the Justices unanimously agreed to overrule the Wisconsin Supreme Court, sparks flew when Justices White and Scalia disagreed over whether Congress intended to preempt state law.4 Writing for the Court, White delved into the legislative history and found it inconclusive, thus leading him to decide that Congress had intended to preempt state law.5 In his concurrence, Scalia argued that the legislative history did show an intent to preempt state authority, but joined in the majority's decision because he maintained that the Court should cease relying on committee reports. Committee reports were unreliable, wrote Scalia, not only as a genuine indicator of congressional intent but as a safe predictor of judicial construction.6 That's when they dragged in Chief Justice John Marshall. Defending the majority's reliance upon legislative history, White cited two Marshall opinions to show that [o]ur precedents demonstrate that the Court's practice of utilizing

Lumber, Law, and Social Change: The Legal History of Willard Hurst

Lumber, like steel, cotton, wheat, coal-heavy and dirty stuff! It was the growing, mining, transporting, manufacture, sale, and use of these products that fueled American economic growth in the nineteenth century, building the economic infrastructure of the country. The power of all this production can hardly be imagined today: it was the stuff of Carl Sandburg's poetry; of Woody Guthrie's songs; and of legends larger than life, Paul Bunyan and John Henry. Surely James Willard Hurst felt some sense of this power when he chose lumber as a context in which to describe the growth and development of American law: not a biography of a great chief justice, not a survey of all of American law, not a study of our changing Constitution, but a history of the development of in relation to a single industry, in a single state: Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin, 1836-1915. The book, first published in 1964, and now reissued in a second edition on its twentieth anniversary, is a landmark in American legal history, and a major statement of the whole law and society movement, so prominent in Wisconsin legal scholarship. Reviewers commonly remark on the awesomeness of the task of even reviewing the book: it is well known for its length (946 pages), its documentation (more than 300 pages of footnotes in very fine print), and the complexity of its analysis. Hurst is widely acknowledged to have read all the legal sources available, including every case involving the lumber industry in the Wisconsin Supreme Court, and major county courts.

Wisconsin Supreme Court Sees the Light: Nuisance Remedy Granted for Obstruction of Solar Access

Wisconsin Supreme Court Sees the Light: Nuisance Remedy Granted for Obstruction of Solar Access

Hospital corporate liability: the walls continue to tumble.

Today's hospitals and health care facilities are being increasingly subjected to pressures to monitor the quality of the health care provided in their institution. One vehicle is the courts which, utilizing the doctrine of hospital corporate liability, have imposed a duty upon the hospital to use reasonable care in the selection and maintenance of physicians on its medical staff. This article will discuss three different approaches from three different states.The first case is Johnson v. Misericordia Community Hospital, decided by the Wisconsin Supreme Court in January 1981. In its decision, the court sought to answer two questions: “Does a hospital owe a duty to its patients to use due care in the selection of its medical staffand the granting of specialized surgical (orthopedic) privileges?;” and second, “What is the standard of care that a hospital must exercise in the discharge of this duty to its patients…?”

A Phantom Doctrine: The Origins and Effects of Just v. Marinette County

No branch of zoning law is more perplexing than the constitutional limits of the police power. How severely may the government reduce the value of land by regulation without compensating the owner? This issue has become particularly prominent during the last decade, as state and local governments have sought to preserve the landscape by novel and sometimes stringent land-use controls. Recently, some scholars have suggested that the familiar “diminution-of-value” test for determining when regulations become unconstitutional should be abandoned, even in cases where the prohibited use is not akin to a nuisance, and the effect of the regulation is to render the tract worthless. In Just v. Marinette County, the Wisconsin Supreme Court seemed to adopt this idea, declaring that development of a shoreland marsh may be forbidden irrespective of the economic impact on the landowner. Naturally, such decisions create the impression that property owners are regularly being sacrificed for the sake of environmental quality. But a study of Just's origins and effects reveals that in Wisconsin and Minnesota this impression of regulatory zeal is inaccurate. As a rule, all four of the counties studied allowed owners of shoreland marshes to fill enough of the marsh to make a remunerative use of the tract. Their main concern was not to preserve marshes but rather to attach erosion-control conditions to the fill permits. Cases in which a county, by denying a fill permit, drastically reduced the value of the land, have been extremely rare, even in the three Wisconsin counties studied, where under Just such denials are clearly constitutionally permissible. In these counties, it appears that ideology and politics, not constitutional law, are the major factors limiting the severity of conservancy zoning and consequently the extent to which this technique preserves open space. In jurisdictions where this is so, it seems likely that judicial decisions that permit the government to prohibit all remunerative uses are more likely to rationalize unjust treatment of an occasional landowner than to make a major contribution toward preserving environmental quality.

A Phantom Doctrine: The Origins and Effects of Just v. Marinette County

No branch of zoning law is more perplexing than the constitutional limits of the police power. How severely may the government reduce the value of land by regulation without compensating the owner? This issue has become particularly prominent during the last decade, as state and local governments have sought to preserve the landscape by novel and sometimes stringent land-use controls. Recently, some scholars have suggested that the familiar “diminution-of-value” test for determining when regulations become unconstitutional should be abandoned, even in cases where the prohibited use is not akin to a nuisance, and the effect of the regulation is to render the tract worthless. In Just v. Marinette County, the Wisconsin Supreme Court seemed to adopt this idea, declaring that development of a shoreland marsh may be forbidden irrespective of the economic impact on the landowner. Naturally, such decisions create the impression that property owners are regularly being sacrificed for the sake of environmental quality. But a study of Just's origins and effects reveals that in Wisconsin and Minnesota this impression of regulatory zeal is inaccurate. As a rule, all four of the counties studied allowed owners of shoreland marshes to fill enough of the marsh to make a remunerative use of the tract. Their main concern was not to preserve marshes but rather to attach erosion-control conditions to the fill permits. Cases in which a county, by denying a fill permit, drastically reduced the value of the land, have been extremely rare, even in the three Wisconsin counties studied, where under Just such denials are clearly constitutionally permissible. In these counties, it appears that ideology and politics, not constitutional law, are the major factors limiting the severity of conservancy zoning and consequently the extent to which this technique preserves open space. In jurisdictions where this is so, it seems likely that judicial decisions that permit the government to prohibit all remunerative uses are more likely to rationalize unjust treatment of an occasional landowner than to make a major contribution toward preserving environmental quality.

Leading cases

EVERY week there are many court decisions that have an impact on the practice of medicine. These decisions are currently reported, in summary, in<i>The Citation</i>, a newsletter published twice a month by the office of the General Counsel, American Medical Association. Some of these decisions are of such special importance that they deserve the wider publicity that can be obtained through the pages ofThe Journal. Trial court decisions, which are of little precedent value and are subject to reversal, are omitted. Selected decisions are usually restricted to those of the highest state or federal court. It should be remembered, however, that a decision by a court in one state is not necessarily binding elsewhere. <h3>Administrative Professional Services</h3> The professional services of a physician may include administrative activities, the Wisconsin Supreme Court has ruled.¹This is an important decision because a physician may wish to bring suit to

Shoreland regulation in Wisconsin

Abstract In 1966 Wisconsin launched a shorelands management program to permit counties to zone all unincorporated areas lying 1000 ft landward of lakes, ponds, and flowages, and to zone 300 ft landward of streams, or to the landward side of the floodplain, whichever is greater. The state developed standards and criteria for the counties including bulk provisions, sanitary restrictions, and subdivision regulations. The state has authority to intervene if counties fail to adopt shoreland regulations. In response to the shorelands program counties have developed planning capabilities which did not exist prior to 1966, and county‐promulgated sanitary standards for shorelands resulted in upgraded state plumbing standards. In 1972 the Wisconsin Supreme Court strongly affirmed the shorelands management program in the leading case Just v. Marinette County. 1

The Political Party Variable: Workmen's Compensation Cases in the New York Court of Appeals

Previous articleNext article No AccessResearch NotesThe Political Party Variable: Workmen's Compensation Cases in the New York Court of AppealsEdward N. Beiser and Jonathan J. SilbermanEdward N. Beiser Search for more articles by this author and Jonathan J. Silberman Search for more articles by this author PDFPDF PLUS Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinkedInRedditEmail SectionsMoreDetailsFiguresReferencesCited by Polity Volume 3, Number 4Summer 1971 The Journal of the Northeastern Political Science Association Article DOIhttps://doi.org/10.2307/3234107 Views: 3Total views on this site Copyright 1971 PolityPDF download Crossref reports no articles citing this article.

A Selective Bibliography on the Evolution of CATV 1950–1970

A full bibliography on one of the most active areas of broadcasting —CATV—is long overdue. Don Le Duc originally prepared this compilation while working on his doctorate at the University of Wisconsin. It is based on an extensive clipping file collected by Kenneth Lichty of India, California, and by the author's major professor, Lawrence W. Lichty of the University of Wisconsin. Support for completing the collection came, in part, through a fellowship awarded by the Department of Communication Arts and a travel grant from the Graduate School of Arts and Sciences of the University of Wisconsin. Dr. Le Duc is a member of the State of Wisconsin and United States Supreme Court Bars, and is on the publications committee of the Federal Communications Bar Association and the communications committee of the American Bar Association. Formerly on the faculty of the University of Maryland, he will be assistant professor in the Department of Speech at the Ohio State University starting this fall.

Begging the Question: Judicial Review of Ballot Questions for Referred State Constitutional Amendments in Wisconsin

Among the most powerful instantiations of popular sovereignty is the people’s right to amend their state constitutions. In Wisconsin, the legislature refers proposed state constitutional amendments to the electorate, who decide whether to ratify based on a brief ballot question. Because a single question often cannot inform voters of the scope or import of an amendment with multiple provisions, voter consent to constitutional amendments becomes a legal fiction, especially where ballot questions are vague, incomplete, or misleading. Insufficient ballot questions that obscure or misrepresent the underlying amendment allow the legislature to manipulate the referendum process. This practice erodes popular sovereignty and abrogates constitutional accountability mechanisms. Effective procedural safeguards are thus necessary to legitimize referenda outcomes. However, the Wisconsin Legislature has created few statutory procedural safeguards to ensure accurate, clear, and complete ballot questions. Additionally, the Wisconsin Supreme Court’s inconsistent approach to judicial review of ballot questions renders these limited safeguards largely ineffective. State constitutional amendment epitomizes a high-stakes, lowinformation process. With the proliferation of state constitutional amendments, often involving polarizing and significant policy issues, preserving state constitutions’ structural commitment to popular sovereignty in the referendum process has become increasingly important. State courts can best preserve this commitment by ensuring that legally sufficient ballot language elicits voter consent to the underlying amendment. Because the Wisconsin Constitution requires voter consent to ratify constitutional amendments, the Wisconsin Supreme Court has a constitutional duty to ensure that ballot questions elicit that consent. This Comment argues that rigorous pre-election judicial review of ballot language is imperative to combat legislative subversion of popular sovereignty in Wisconsin’s constitutional amendment process.