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Recent Posts by Arnom Zamir

Appellate courts in California have repeatedly reversed findings of neglect based on parental marijuana use where there was no evidence establishing a connection between such use and an actual or a substantial risk of harm to the children (see e.g., In re David M., 134 Cal App 4th 822, 827-833, 36 Cal Rptr 3d 411, 414 - 418 (Cal App 4th Dist 2005) and Jennifer A. v. Superior Court (117 Cal App 4th 1322, 1333-1347, 12 Cal Rptr 3d 572 (Cal App 4th Dist 2004); In re Aliyah G., 2011 WL 3190697, 8 (Cal App 2d Dist)).

In David M., the appellate court held that the Family Court erred by entering a finding of neglect since there was no evidence tying the mother's marijuana use to actual harm or a substantial risk of serious harm to the children.

Although the mother tested positive for marijuana at the birth of her youngest child, that child was healthy and showed no signs of withdrawal from any controlled substances. The older child was loved, healthy and well-cared for. The parents had obtained regular, appropriate medical care for the older child from the time of his birth. The home was clean and contained all necessary provisions.

The worker never spoke to anyone who had seen the mother use drugs during her pregnancy or had seen her in possession of drugs or drug paraphernalia. There was no evidence of a specific risk of harm to either child from the mother's substance abuse.

The Court wrote that even if subsequent reports from the baby's foster parent that he experienced tremors and muscle stiffness were true, there was no evidence that these symptoms were caused by the mother's use of marijuana.

Applying similar reasoning in Jennifer A. v. Superior Court, the appellate court held that the Family Court erred in finding that the mother's one positive test for marijuana and one positive test for alcohol created a substantial risk of detriment to the children's physical or emotional well-being.

The worker never saw the mother under the influence of drugs or alcohol and the worker testified that the mother did not have a drug problem that affected her parenting skills. There was no evidence linking the mother's marijuana or alcohol use to her parenting skills or judgment.

There was no evidence that she had ever used any drugs other than alcohol or marijuana or that she ever drank alcohol or smoked marijuana in the presence of the children. There was no history of mental illness or incarceration.

There was no evidence of clinical substance abuse, no testimony from a medical professional and no report of a clinical evaluation establishing a pattern of substance abuse leading to clinically significant impairment or distress);

In re Aliyah G., 2011 WL 3190697, 8 (Cal App 2d Dist) (the evidence was insufficient to support a finding that the father's use of cocaine, marijuana and alcohol caused the children to suffer or put them at substantial risk of suffering, serious harm where none of father's drug tests were positive for cocaine and although he admitted to drinking alcohol, he stated that his drinking was not excessive and he tested positive for alcohol only once. None of the children reported that the father's drinking or marijuana use adversely affected his ability to care for them and two of the children said that the father did not drink or use marijuana around them);

compare, In re Alexis E., 171 Cal App 4th 438, 452 453, 90 Cal Rptr 3d 44 (Cal App 2d Dist 2009) (the mere use of marijuana by a parent, without more, will not support a finding of risk, however, here the father's marijuana use supported a finding because he used around his children and it had a negative effect on his demeanor towards them);

In re Jeremiah L., 2011 WL 3964653, 7 (Cal App 2d Dist) (the children were at substantial risk of serious harm due to the father's domestic violence and marijuana use);

In re Elijah F., 2011 WL 3652740, 4 (Cal App 2d Dist) (in spite of the baby's healthy condition at birth, the mother posed a risk of harm to him and the findings were supported by substantial evidence where the mother repeatedly used marijuana during her pregnancy, she failed to take her medication for schizophrenia, she physically abused her older child and had a positive toxicology for marijuana the day the baby was born);

In re Nicholas B., 2003 WL 122651 (Cal App 1st Dist) (the evidence supported a finding that the three children were at substantial risk of suffering serious harm where the mother used marijuana and methamphetamine during her pregnancy with her infant son, received minimal prenatal care, had a long history of drug abuse, the toddler was dirty, had severe diaper rash, and had not received immunizations since she was two months old, the mother was unable to keep a clean and orderly household and she and the father were in an ongoing violent relationship and he acknowledged that he frequently used marijuana and was regularly under its influence when the children were in his care)).

In Tempelis v. Aetna Casualty & Surety Co., 169 Wis. 2d 1, 485 N.W.2d 217 (Wis. 1992), the Wisconsin Supreme Court held that a clause, which is substantially similar to the clause in this case, is ambiguous. Arising in the context of a fire insurance policy, in Tempelis, 485 N.W.2d 217, the insureds created fraudulent receipts for living expenses and made false statements with regard to their fire insurance.

In denying coverage, Aetna relied upon the policy clause that provided: "We do not provide coverage for any insured who has: a. intentionally concealed or misrepresented any material fact or circumstance; b. made false statements or engaged in fraudulent conduct; related to this insurance." Id. 485 N.W.2d at 219.

The court determined that this policy language was ambiguous as to the extent to which a material misrepresentation would void coverage:

"When read by a reasonable person in the position of the insured, we conclude the policy is reasonably susceptible to more than one construction. A reasonable insured could read the policy in at least one of two different ways: 1) as canceling coverage only for the subsection or element of the claim to which the material misrepresentation relates; or 2) canceling coverage of the entire claim for any material misrepresentation. The policy language is therefore ambiguous." Id. 485 N.W.2d at 221.

Accordingly, the court determined that only the portion of the insurance claim to which the fraud related was void, and coverage should be denied for that portion alone. See id. 485 N.W.2d at 222.

The court added:

"Although our decision is based on the fact that we conclude that the Tempelises' insurance policy is ambiguous, it is understandable why other courts have simply refused to allow a material misrepresentation that relates to one element of a claim, e.g., additional living expenses, to void coverage of the entire claim. Such an interpretation of an insurance contract could produce extremely harsh results. For example, if an insured had a two million dollar insurance policy, and he or she submitted one fraudulent receipt for a $ 50 meal, the policy would void coverage of his or her entire insurance claim, including the two million dollar coverage of the home." Id.

In State v. Tarrant, 2009 WI App 121, 321 Wis. 2d 69, 772 N.W.2d 750 (Wis. Ct. App. 2009), the appealing prisoner invoked his rights under the IAD after Wisconsin filed an arrest warrant against him while he was serving a sentence in Kansas. Id. at 752.

Wisconsin then modified the warrant so that it would not operate as an interstate detainer. Id. When Tarrant later moved to dismiss the charges in Wisconsin for a violation of the IAD, the trial court concluded that the modification of the warrant rendered the IAD inapplicable. Id.

The Wisconsin Court of Appeals reversed, holding that "once a prisoner has properly requested a prompt and final disposition of pending criminal charges, the only way the State can avoid its obligation to bring the prisoner to trial within 180 days of the request is to dismiss the untried complaint or information." Id. at 757.

The Tarrant Court explained:

We believe that the approach of the Colorado Court of Appeals best fulfills the principal purpose of the IAD and adopting that approach insures uniformity in interpretation of the IAD. See Estate of Matteson v. Matteson, 2008 WI 48, P42, 309 Wis. 2d 311, 749 N.W.2d 557 ("The purpose of uniform laws is to establish both uniformity of statutory law and uniformity of case law construing the statutes, ensuring certainty and guidance to litigants who rely on the courts to interpret uniform statutes in a predictable and consistent manner."). Under the Colorado interpretation of the IAD, the withdrawal of the detainer must be accompanied by the dismissal of the charges if the time limits of the IAD are to be avoided. This makes sense, because a prisoner who responds to the lodging of a detainer by filing an Inmate's Notice of Place of Imprisonment and Request for Disposition of Indictments, Informations or Complaints, accompanied by a warden's Certificate of Inmate Status, as provided for by WIS. STAT. § 976.05(3)(a), is demanding a prompt and final disposition of the underlying charges. A final disposition can only be achieved by a trial or dismissal of the charges. It is only after the charges "have gone away" that the prisoner is no longer exposed to the detrimental effects of pending criminal charges.

Applying the Colorado approach requires us to reverse Tarrant's conviction and dismiss the charges because he was not brought to trial within 180 days of his demand for a prompt and final disposition. It was not enough for the Green Lake county district attorney to modify the warrant to exclude the possibility of interstate extradition. Because the underlying criminal complaint was still pending, the basis for Tarrant's right to demand a speedy trial still existed. (Id. at 756-57.)

In State v. Perry, 181 Wis. 2d 43, 510 N.W.2d 722 (Wis. Ct. App. 1993), the defendant was charged with aggravated battery arising from an incident in which he inflicted cutting wounds on the victim with a knife during a fight.

A friend of his also was charged in relation to the same incident and was tried separately. The defendant was convicted and sentenced and began serving time before his co-defendant's trial was completed.

The trial court decided that, because both men were charged with crimes causing the victim's injuries, it would be fair and efficient to determine the issue of restitution at a joint proceeding with the co-defendant, if he were convicted.

The co-defendant then was convicted, and the court held a restitution hearing and ordered the defendant to pay restitution.

The defendant appealed, arguing that the trial court had violated the restitution statutes and his double jeopardy rights when it ordered him to pay restitution after he already had been sentenced.

The Wisconsin restitution statute permitted a trial court to "'adjourn a sentencing proceeding for up to 60 days pending resolution of the amount of restitution.'" 510 N.W.2d at 725 (quoting the relevant statute).

The trial court's award of restitution was made outside that 60-day period, but the appellate court held, for reasons not relevant to our analysis, that the time period was directory, not mandatory, and the trial court had compelling reasons to delay the restitution hearing until after the co-defendant's trial.

The appellate court rejected the defendant's argument that the award of restitution violated his "constitutional protection against double jeopardy," opining:

The defendant himself points out that Wisconsin courts in fact are allowed to increase or add restitution after the initial disposition. The law of double jeopardy largely conforms to the applicable statutory framework, but this is because the protection is keyed to the convicted offender's expectations about the finality of the punishment meted out. See United States v. DiFrancesco, 449 U.S. 117, 136-37, 101 S. Ct. 426, 66 L. Ed. 2d 328 (1980). The defendant knew at the conclusion of the September 1992 sentencing hearing that the restitution determination proceedings were very likely to follow; he had no legitimate expectation that he would escape the restitution order. Therefore, his restitution determination proceedings did not offend any finality expectations. 510 N.W.2d at 727.

In State v. Laxton, 2002 WI 82, 254 Wis. 2d 185, 647 N.W.2d 784 (Wis. 2002), the jury was instructed that in order to find the defendant eligible for civil commitment, the jury must find that the defendant was "dangerous to others because he has a mental disorder which creates a substantial probability that he will engage in acts of sexual violence." Id. at 795.

The trial judge further instructed the jury that "a substantial likelihood means much more likely than not." Id.

The Wisconsin Supreme Court stated that an instruction that required proof that due to a mental disorder it is substantially probable that a person will engage in acts of sexual violence if not civilly confined satisfied Crane. See id. at 794-95.

Moreover, the court explicitly stated that it was "settled law" that "substantially probable" meant "much more likely than not." Id. at 793-94.

According to the court, it was specifically this requisite proof of substantial probability that distinguished a typical recidivist from a dangerous sexual offender.

In State v. Knight, 143 Wis. 2d 408, 421 N.W.2d 847 (1988), Knight and a codefendant were charged with robbery, endangering safety by conduct regardless of life, and false imprisonment.

After 14 hours of deliberations, the jurors sent a note to the judge saying they were unable to reach a unanimous decision on the two robbery charges (one for each defendant).

The parties agreed to accept the jury's verdicts without further deliberation. When the jury was brought out, a juror informed the court that it was "deadlocked" as to the robbery counts and they "did not want any more time to deliberate" because more time would not help them reach verdicts on those counts. 143 Wis.2d at 412.

The court took the verdicts on the decided counts, which were that both defendants were guilty of endangering safety and false imprisonment.

The judge then gave an Allen charge and retired the jurors to deliberate on the robbery charges. They returned with guilty verdicts later that day.

The Supreme Court of Wisconsin reversed Knight's robbery conviction.

It held that, because in taking the verdicts on the endangering safety and false imprisonment counts, the court did not "indicate . . . that it was accepting only the verdicts that the jury had agreed upon," the court "effectively accepted" the two verdicts and the deadlock. Id. at 417-18.

Accordingly, the trial court should have declared a mistrial on the robbery count, due to the deadlock, and not retired the jury to deliberate further, that being an "invasion of the province of the jury." Id. at 418.

In State v. Johnson, 177 Wis. 2d 224, 501 N.W.2d 876 (Wis. App. 1993), the Wisconsin Court of Appeals reversed the defendant's conviction because the evidence against him was derived from an illegal search. Officers patrolling an apartment building in a high crime area stopped and frisked the defendant and, finding no drugs or weapons, asked him to produce identification.

He told them that it was in his girlfriend's apartment in the building. One of the officers then accompanied the defendant to the apartment.

When the defendant went inside, the officer followed him. The officer "did not ask for Johnson's permission to enter, and Johnson did not ask him to come in." Johnson, 501 N.W.2d at 877.

Rejecting the state's argument that, because there was no credible testimony that the defendant objected to the police entry, he impliedly consented to it, the court held that consent "'cannot be found by a showing of mere acquiescence.'" Id. at 880.

In State v. Buelow, 122 Wis 2d 465, 363 NW2d 255 [1984], the Wisconsin court set forth a series of factors including foremost, "the natural tendency to place the burdens on the party desiring change" and added as the party desiring free services, the defendant should bear the burden of proof. (122 Wis 2d at 471, 363 NW2d at 259.)

In addition, because the defendant is the party in possession of all the material proof regarding her own wealth, and is asserting the negative--lack of funds--the court held that she should be required to come forward with proof. (122 Wis 2d at 472, 363 NW2d at 259.)

In State v. Alexander, 214 Wis. 2d 628, 571 N.W.2d 662 (Wis. 1997), the defendant was accused of operating a motor vehicle with a prohibited alcohol concentration.

Because of his prior record the defendant was charged with an aggravated version of the crime, similar to the felony driving under the influence offense in Florida.

One of the offense's elements was that the defendant must have two or more prior convictions, suspensions, or revocations as counted under statute. 571 N.W.2d at 664.

Despite the defendant's admission of that element of the crime, the trial court admitted the particulars of the prior offenses into evidence and the defendant was convicted.

The Wisconsin Court of Appeals held that it was error to allow the particulars of the prior convictions into evidence, but found the error harmless.

On review, the Wisconsin Supreme Court relied on Old Chief v. United States, 519 U.S. 172 (1997) in its analysis:

Introducing evidence of the defendant's prior convictions . . . served no purpose other than to prove the status element of the charged offense. Admitting this evidence to prove this status element, and submitting the status element to the jury adds nothing to the State's evidentiary depth or descriptive narrative. It does nothing to fulfill a juror's expectations. This evidence and element, does, however, tell a juror that the defendant has had a problem in the past, probably with drinking and driving. It raises an inference that the defendant has a bad character and a propensity to drink and drive, and that is the very result prohibited by the rules of evidence. Id. at 671.

Nevertheless, the court found the error harmless due to the "overwhelming nature" of the evidence supporting the defendant's guilt. Id. at 672.

In School Dist. of Stockbridge v. Evers, 2010 WI App 144, 330 Wis. 2d 80, 792 N.W.2d 615, 616 (Wis. Ct. App. 2010), the Wisconsin Court of Appeals determined "whether a resident school district may limit the number of student transfers to non-resident school districts under the statute or, in the alternative, limit the number of transfers via an exercise of its general authority . . . ."

The plaintiffs--parents filed for administrative review with the superintendent against the defendant--school district ("school district") when it denied their childrens' applications to attend school in an adjoining county. Id. at 617.

The school district averred that funding the students to a non-resident district placed an undue financial burden on it. Id. at 620.

The superintendent reversed the school district's ruling, stating that its decision was "arbitrary and unreasonable." Id. at 617.

The school district filed a petition for judicial review, and the trial court affirmed. Id. at 618.

The Wisconsin statute provided in pertinent part that "'a pupil may attend a public school . . . in a non-resident school district under this section.'" Id.

On appeal, the Wisconsin Court of Appeals noted that the only reasons that its legislature offered to enforce a limitation on the number of students who applied for permission to attend an out-of-county school was (1) racial balance and (2) a financial burden regarding special education services only. Id. at 621.

The statute did not, however, provide for an exception relating to the entire district's financial well-being. Id. Therefore, although the Court acknowledged possible financial concerns, it was not a statutory reason to deny open enrollment applications for non-resident students. Id. at 622.

The Court affirmed the superintendent's ruling. Id.

In Production Credit Asso. of Madison v. Laufenberg, 420 N.W.2d 778, 779 (Wis. Ct. App. 1988), a creditor claimed that it was entitled to post-judgment attorney's fees based on the provisions of its loan agreement with the debtors, which provided, in pertinent part, that the creditor was authorized to pay for certain expenses from the debtors' account, including the following:

Except where and to the extent prohibited by applicable law, promptly pay or reimburse the creditor for all expenses, fees, and disbursements, including reasonable attorneys' fees, incurred either before or after any default in connection with: this Agreement and the documents related to it, the perfection of the creditor's security interest or other lien in collateral, or incurred in connection with protecting or enforcing its rights with respect to collateral or foreclosing against the same as more fully detailed in any security agreements, mortgages, or other collateral documents given in accordance with Section 5.0 of this Agreement. Id. at 779.

The Wisconsin Court of Appeals observed that attorney's fees are only recoverable if "such liability arises from a specific statute or the contract of the parties," and, that, under the doctrine of merger, "upon entry of judgment, the contract sued upon loses all of its vitality and ceases to bind the parties to its execution." Id.

The Court cited to Restatement (Second) Judgments § 18 and concluded that the creditor could not recover attorney's fees incurred after the entry of judgment on the loan agreement because, at that point, the creditor no longer had a contractual right to those fees. Id. at 780.

In Production Credit Asso. of Madison v. Laufenberg, 143 Wis. 2d 200, 420 N.W.2d 778 (Wis. Ct. App. 1988), a creditor sought post-judgment attorney's fees based on the provisions of its loan agreement with the debtors, which provided, in pertinent part, that the creditor was authorized to pay for certain expenses from the debtors' account, including the following:

Except where and to the extent prohibited by applicable law, promptly pay or reimburse the creditor for all expenses, fees, and disbursements, including reasonable attorneys' fees, incurred either before or after any default in connection with: this Agreement and the documents related to it, the perfection of the creditor's security interest or other lien in collateral, or incurred in connection with protecting or enforcing its rights with respect to collateral or foreclosing against the same as more fully detailed in any security agreements, mortgages, or other collateral documents given in accordance with Section 5.0 of this Agreement. Id. at 779.

Attorney's fees in Wisconsin are only recoverable if "such liability arises from a specific statute or the contract of the parties." Id.

Additionally, the Laufenberg Court observed that, under the rule of merger, "upon entry of judgment, the contract sued upon loses all of its vitality and ceases to bind the parties to its execution." Id.

The court thus cited to Restatement (Second) Judgments § 18, which we quoted supra, and concluded that the creditor could not recover attorney's fees incurred after the entry of judgment on the loan agreement because, post-judgment, the creditor no longer had a contractual right to those fees. Id. at 780.

In Peterson v. Sinclair Refining Co., 20 Wis. 2d 576, 123 N.W.2d 479 (Wis. 1963), property damage arose after a delivery of the wrong type of liquid product. The Petersons ordered fuel oil and gasoline from Sinclair.

The Sinclair delivery truck had four separate compartments, two containing fuel oil and two containing gasoline.

The delivery person pumped the gasoline into a gasoline tank on the Peterson property. He then moved his truck and prepared to pump the fuel oil into an oil tank in the Petersons' basement.

He erroneously attached the fuel oil hose to the wrong compartment in his truck, however, and pumped gasoline into the oil tank.

When the delivery person went into the Petersons' basement to determine if the tank was full, he realized his mistake. He tried to "ladle the gasoline out of the storage tank . . . with a bucket" and pour it back into the gasoline compartment of his truck. Id. at 481.

He then drained the rest of the gasoline into a sewer in the basement using a small hose. After he had removed most of the gasoline, he prepared to pump fuel oil into the oil tank.

Around this time, an explosion occurred, damaging the Peterson home and causing personal injury to Mr. Peterson and the delivery person.

Sinclair's automobile liability policy insured the delivery truck and contained the following relevant exclusion:

It is agreed that the insurance afforded by the policy for bodily injury liability and for property damage liability does not apply to accidents arising out of the delivery of any liquid product into a wrong receptacle or the erroneous delivery of one liquid product for another, if the accident occurs after such operations have been completed or abandoned at the place of occurrence thereof. Such operations shall not be deemed incomplete because improperly or defectively performed or because further operations may be required pursuant to a service or maintenance agreement. Id. at 486.

The insurer argued that the phrase "such operations" in the exclusion referred to the mis-delivery of one liquid product for another.

Thus, it maintained that, because the explosion had occurred after the delivery person had ceased mis-delivering the gasoline and was beginning to properly deliver the fuel oil, the mis-delivery was "completed" and the exclusion applied.

The court rejected this argument, concluding that the phrase "such operations" more reasonably encompassed "the total process of attempting to deliver petroleum products into their proper containers." Id. at 486-87.

The court further reasoned that the phrase "abandonment and completion of 'such operations'" meant "a state of affairs where the driver of the truck physically leaves the unloading area, after erroneous delivery, thus creating a situation in which an intervening instrumentality, not insured by the driver's insurer, may provide a causal link in the chain leading to the accident." Id. at 487.

Because the delivery person still was on-site and in the process of attempting to correct the mis-delivery of the gasoline at the time the explosion occurred, the operations were not complete and had not been abandoned.

Thus, the exclusion was inapplicable.

In Otto v. Cornell, 119 Wis. 2d 4, 349 N.W.2d 703 (Wis. App. 1984), parties were next door neighbors. For many years, Otto "maintained a fence on what he believed was the southern boundary of his lot and the northern boundary" of the Cornells' property. Id. at 705.

He later removed the fence and replaced it with "four maple trees to mark the boundary," and thereafter maintained his property up to the trees for well over twenty years. Id.

Thereafter, the Cornells discovered that the property line lay "between .7 feet and 7.2 feet north of the line on which Otto had planted the trees." Id.

The Wisconsin appellate court upheld the trial court's finding that Otto had acquired the disputed area by adverse possession, despite the Cornells' alleged reentries on the land. Id. at 706.

The Wisconsin court said, id. :

The Cornells made no notorious reentry to dispossess Otto until after his adverse possession had been established. . . . The trial court may . . . have considered the Cornells' alleged activities, such as raking leaves and their children playing on the disputed strip, to be casual reentries. It was not necessary for Otto to treat the disputed property more protectively than he treated his own lot to satisfy the requirement of exclusivity. He was not required to be belligerent if his neighbors happened to step across a particular line.

In Missionaries of La Salette v. Whitefish Bay, 267 Wis. 609, 66 N.W. 2d 627 (1954), the Village of Whitefish Bay, by zoning ordinance, purported to restrict the use of property in the particular district to single-family dwellings. The ordinance defined "family" as "one or more individuals living, sleeping, cooking, or eating on premises as a single housekeeping unit." (p. 611).

In La Salette, the building in a residential neighborhood was occupied by a group of priests and lay brothers, who at no time exceeded eight in number. The two lay brothers did the housekeeping and prepared and served the meals. The priests lived at the home but performed their religious duties elsewhere.

The Village of Whitefish Bay argued that the term "family" was restricted in meaning to a group of individuals related to one another by blood or marriage.

The Court disagreed, relying upon the public policy that restrictions placed upon the use of land must be strictly construed.

The Court stated that a violation of a zoning ordinance can only occur when there is a plain disregard of limitations imposed by express words.

The court said:

"Covenants restricting the use of land are construed most strictly against one claiming their benefit and in favor of free and unrestricted use of property; a violation of the covenant occurs only when there is a plain disregard of the limitations imposed by its express words." (p. 614)

The court pointed out that this rule is equally applicable to private deed restrictions and building and zoning ordinances. The court held that the Missionaries of Our Lady of La Salette were not in violation of the zoning restriction, because the ordinance did not expressly define a "family" to exclude all who are not related by blood or marriage relationship. The court stated:

"Had it been the pleasure of the legislative body when defining the word 'family,' to have excluded in the district any dwelling use of premises there situated, by a group of individuals not related to one another by blood or marriage, it might have done so. Since there is a complete absence of any such limitation, it seems clear that it was not the legislative intent to restrict the use and occupancy to members of a single family related within degrees of consanguinity or affinity." (p. 615)

In McMorrow v. Benson, 2000 WI App 173, 238 Wis. 2d 329, 617 N.W.2d 247, 251-52 (Wis. Ct. App. 2000), the plaintiff--student desired to finish the last two years of his secondary education in a non-resident school district. He submitted his application to the non-resident district, but it was denied. Id. at 252.

The plaintiff appealed to the defendant--superintendent ("superintendent"), who affirmed the school district's decision because of class size guidelines. Id.

The plaintiff then filed a petition for judicial review to the trial court. Id. The trial court reversed, and found that there was no substantial evidence that there was an issue with available space, and concluded that the superintendent's decision was arbitrary and capricious. Id. The superintendent then noted an appeal. Id.

On appeal, the Wisconsin Court of Appeals discussed the class sizes of the grade that the plaintiff sought, and found that two of the six curriculum courses were beyond the maximum capacity. Id. at 254.

However, the Court noted that this did not hinder the school district's decision to permit other students to continue their education at the non-resident school. Id. The superintendent argued that pursuant to the statute, current non-residents received first priority. Id.

The Court disagreed, stating that the statute provided that, "when there are more applicants than spaces available, the pupils accepted shall be determined on a random basis." Id. at 255.

Because the statute was clear and unambiguous, the Court reversed the superintendent's ruling, indicating that "it was arbitrary and unreasonable to make an exception to the class size guidelines to admit three students into the 11th grade, but deny the plaintiff's admission without a valid reason." Id.

In Kramschuster v. Shawn E., 211 Wis. 2d 699, 565 N.W.2d 581 (Wis. Ct. App. 1997), the Court of Appeals of Wisconsin considered the grant of summary judgment in favor of Donald McClelland, the head of a deer hunting party.

McClelland planned a hunting trip for the opening day of deer hunting season. He invited two minors, including 15 year old Shawn E., a tenth grader who had completed hunter education and firearm safety courses, had hunted "numerous times" (including by himself), and was licensed and legally "permitted to hunt without adult supervision." Kramschuster, 565 N.W.2d 581 at 583.

After spending the night at a cabin on property that McClelland owned, the three set out in the dark for the adjacent property. Although McClelland did not own or lease that property, they planned to hunt there that morning.

When they arrived, "McClelland told Shawn where to sit, where the McClellands would be located and some generalized suggestions as to Shawn's field of fire so as to drive the deer toward the McClellands in the event Shawn missed the deer." Id.

McClelland, however, did not tell Shawn about a nearby path "that was used by other hunters seeking access to nearby hunting areas," nor did he tell Shawn "to wait for the official start of hunting season in that area or for sufficient light before firing his gun." Id.

"While it was still dark and before the official start of the hunting season, Shawn observed what he believed to be a group of deer. . . . but was in fact a group of hunters, which included Allen Kramschuster, walking up the trail." Id. Shawn "fired his weapon," killing Kramschuster. Id.

His widow sued Shawn, his insurer, and McClelland. The trial court granted summary judgment in favor of McClelland, on the ground that he had no duty to Kramschuster, and that there was no evidence of McClelland's causal negligence.

On appeal, Mrs. Kramschuster argued that (1) McClelland had a duty to instruct Shawn about hunting rules against shooting too early and without adequate visibility; and (2) "McClelland had a duty to supervise Shawn as a member of his hunting party." Kramschuster, 565 N.W.2d 581 at 585.

She also suggested "that McClelland actively misled Shawn into shooting before the official start of the season and induced the erroneous belief that no one else would be in the area." Id.

Rejecting all these arguments, the Wisconsin appellate court affirmed the judgment because "there was no duty owed by McClelland." Kramschuster, 565 N.W.2d 581 at 583.

The court first considered "whether an adult hunter, who is not the child's parent, has a duty to supervise or instruct a fifteen-year-old certified and experienced hunter who is a member of the adult's hunting party." Kramschuster, 565 N.W.2d 581 at 584.

It "answered that question under the facts of that case in the negative because . . . it was not reasonably foreseeable that Shawn would flagrantly violate hunting rules he knew and understood." Id.

The Kramschuster Court specifically rejected the contention that McClelland had a duty, as the head of a hunting party, to ensure that an independent member of his party complied with fundamental hunting safety rules, by giving pre-hunt instructions.

In retrospect, admonitions about adequate light and adequate field of vision before shooting may have averted this tragedy. At the time in question, there were a myriad of other hunting safety rules that may also have come into play and could, under different facts, just as easily have supported allegations of negligence against McClelland. . . . The failure to reiterate basic hunting rules to an independent member of the hunting party does not create a foreseeably unreasonable risk of injury to another person under these facts. Because of his experience in hunting and education in firearm safety and because there was no understanding either expressed or implied that McClelland would instruct Shawn in regard to hunting safety regulations, we conclude that McClelland had no duty to so instruct prior to the commencement of this hunt. (Kramschuster, 565 N.W.2d 581 at 584-85.)

In Kopke v. A. Hartrodt S.R.L., 2001 WI 99, 245 Wis. 2d 396, 629 N.W.2d 662, 666-67 (Wis. 2001), a court was presented with an analogous shipping scenario in which a Wisconsin truck driver was injured when a pallet loaded with paper fell on him while he was unloading an ocean-going container that had been negligently packed by an Italian loading company.

The Kopke court concluded that Wisconsin's exercise of personal jurisdiction complied with the limits of due process because the cargo "was introduced into the stream of commerce with the expectation that it would arrive in the forum." See id. at 675.

The Kopke court considered a stream of commerce analysis applicable because the truck driver's injuries "arose out of commercial activities and the distribution of goods in the stream of commerce" and "the facts . . . presented a 'regular course of dealing that resulted in deliveries' of multiple units of the product into the forum over a period of years."

The court determined that personal jurisdiction was proper based upon the shipper's contractual relationship with the manufacturer; loading instructions that identified the container's destination as "Neenah" or "CTI Appleton," the place of injury; damage reports demonstrating that at least 40 containers were loaded by the shipping company workers for delivery to the forum; and a regular business arrangement with the manufacturer benefitting the shipping company. See id. at 675-76.

With regard to the loading instruction identifying the container's destination, the court concluded that "these products did not randomly or fortuitously appear in Wisconsin; they were specifically intended to arrive in the forum. The injury that the truck driver suffered occurred in the forum to which the cargo containers were directed to arrive." See id. at 675.

The Kopke court concluded that these facts were sufficient to satisfy the purposeful availment requirement. The court also determined that the shipping company had sufficient minimum contacts with the forum to be held accountable if any negligence on its part in loading the cargo containers had resulted in damages. See id. at 676.

In Keiting v. Skauge, 198 Wis. 2d 887, 543 N.W.2d 565 (Wis. Ct. App. 1995), the Wisconsin Court of Appeals dealt with a contractual provision that shortened the period of limitations and specified the time for accrual of a cause of action.

A homeowner sued a home inspection company, alleging that the company had failed to report defects in the home. 543 N.W.2d at 567-68.

By statute, Wisconsin recognizes the right of parties to contract for a shorter period of limitations than that provided by Wisconsin law.

In Kieting, the court perceived no reason why parties should be able to contract for a shorter limitations period but not be able to assign a date from which the period of limitations would run. Id.

The court found that "where parties freely and voluntarily wish to alter that state of affairs, public policy supports their right to do so." Id. at 567.

In Johnson v. Burmaster, 2008 WI App 4, 307 Wis. 2d 213, 744 N.W.2d 900, 902 (Wis. Ct. App. 2007), a virtual charter school was established in Northern Ozaukee, Wisconsin. Children from across the state registered, but were taught in their homes by means of internet and postal mail. Id.

The virtual school was financed via "open-enrollment transfer payments" from the students' residential districts to the defendant, Northern Ozaukee's school district. Id.

The plaintiffs, individual citizens and an education council, filed a complaint against the Northern Ozaukee school district, alleging that operating the virtual school was a violation of Wisconsin's statute. Id. at 903. Both parties filed their respective motions for summary judgment. Id. at 903-04. The trial court granted the defendant's motion, and the plaintiffs appealed. Id. at 904.

On appeal, the Wisconsin Court of Appeals examined "whether a non-resident pupil enrolled in the virtual school triggered the open-enrollment statute's provisions, including a shift in funding from the resident school district to the Northern Ozaukee school district." Id. at 906.

To determine this issue, the Court researched the statute, which allowed a student to "'attend a public school . . . in a non-resident school district." Id.

The parties disputed the meaning of "attend," arguing whether it constituted "physical" or "non-physical" presence. Id.

The Court determined that although the students "attended" the virtual school, they engaged in online learning and resources from their homes. See id.

Accordingly, the Court reversed the grant of summary judgment, and ordered the trial court to declare that the defendants violated the education statute and to "enjoin the education department from making pupil transfer payments based upon non-resident students enrolled in the virtual school." Id. at 909.

In City of Franklin v. Badger Ford Truck Sales, 58 Wis. 2d 641, 207 N.W.2d 866 (Wis. 1973), the seller of a fire truck equipped with a defective and unreasonably dangerous wheel was found strictly liable along with the wheel manufacturer and the truck chassis manufacturer.

Despite the observation that the seller "was in no position to detect the hidden defect," the Franklin court reversed an indemnity judgment in favor of the seller and against the other defendants.

Franklin held that where each of multiple defendants is guilty of negligence as a matter of law toward the plaintiff, the applicability of contribution, not indemnity, between multiple defendants is required. Id. at 870.

The Franklin court noted: "'The granting of indemnity in any situation represents a judicial choice of policy.'" Id. at 872 n. 17.

In West Virginia v. Woodall, 182 W. Va. 15, 385 S.E.2d 253, 263-64 (W. Va. 1989), the appellate court held that the trial court did not err in denying defendant's motion for a mistrial after jurors discussed the case at lunch during trial.

The trial court questioned the jurors, who assured the court that they could and would determine the facts fairly. See id.

The appellate court observed that, when an outsider speaks to a juror, we are most concerned, because inadmissible testimony might be received. Jury discussions among themselves, however, are less troublesome, because they have heard the same evidence in court and remain free to weigh and argue when they later retire to reach a verdict. Id. at 264.

In West Virginia v. Kelly, 145 W. Va. 70, 112 S.E.2d 641 (1960), the West Virginia Department of Motor Vehicles revoked a used car dealer's business license on the ground of record-keeping violations.

The used car dealer was charged with the violations as a result of an investigation by the commissioner of the Department of Motor Vehicles.

A revocation hearing was held and was presided over by one of the commissioner's deputies. The commissioner appeared and testified about the findings of his investigation.

The used car dealer gave contrary testimony. The deputy commissioner chose to believe his superior over the used car dealer, and ruled to revoke the dealer's license.

On appeal, the used car dealer argued that having the deputy commissioner serve as the fact-finder and decision-maker in a hearing in which his superior's investigation and findings were at issue created "command influence" that undermined his due process rights to a fair and impartial hearing.

The Supreme Court of West Virginia agreed.

It noted that due process requires that a trial or hearing . . . be fair, unbiased and by an impartial tribunal, whether the tribunal be administrative or judicial, and that the power exercised by the tribunal . . . not be exercised in an arbitrary or capricious manner. Id. at 74.

The court then stated:

In Tumey v. Ohio, 273 U.S. 510 (1927), Mr. Chief Justice Taft . . . stated: "Every procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law."


Therefore, remembering the history giving rise to the adoption of the due process provisions, and keeping in mind the freedoms assured the people thereby, we are of the view that the record discloses that the used car dealer has been denied due process of law and that, for that reason, the order should be set aside and the writ prayed for awarded. It can hardly be contended that the commissioner, in the making of the investigation and in testifying before the deputy commissioner appointed by him and responsible to him, beyond any reasonable probability, did not become biased and prejudiced in the matter being heard. It would seem to be beyond human experience and expectation for impartiality to result where the officer is investigator, prosecutor, witness and trier of facts. It would seem clear, in these circumstances, that the deputy commissioner could not have acted with impartiality in the consideration of the used car dealer's rights. His actions were for the commissioner, and could not be expected to be free and independent of his influence. Such procedure would most certainly "offer a possible temptation to the average man to forget the burden of proof." This, of course, is not to intimate that the commissioner or deputy commissioner acted with any evil intention or design. But denial of due process, within the meaning of the law, is of itself arbitrary and capricious action, though the officer or tribunal may have acted with the most worthy intentions. (Id. at 145 W. Va. 75-76.)

In Griffis v. Griffis, 202 W. Va. 203, 503 S.E.2d 516 (1998), two identical questions were certified to the court by the Circuit Court of Boone County in three separate cases.

In one case, in which no paternity action was filed, but a subsequent divorce order found that Mr. Griffis was the child's father, the court concluded that the "marriage or remarriage of parents automatically terminates the preexisting child support order; however, mere cohabitation does not." Id. at 205.

The court stated that the "substantial differences that exist between marriage and cohabitation unquestionably compel the conclusion that cohabitation, without marriage, is insufficient to automatically nullify the provisions of an existing court order related to child custody and support." Id. at 211.

In Dalton v. Dalton, 207 W. Va. 551, 560, 534 S.E.2d 747 (2000), the parties were married, had a child, and divorced. The Husband was ordered by the court to pay $ 225 per month in child support.

The parties, however, continued to reside together for approximately eight years. In considering whether the husband met his child support obligation, the court found that cohabitation did not create a "presumption that the obligor has fulfilled his or her support obligations.

Rather, the parties' cohabitation is but one factor in determining whether the obligor former spouse met his or her support obligations. Id. at 560.

The court also stated that the "obligor bears the burden of proving that he or she has made court-ordered support payments." Id.

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