April152022DamagesadminOpinion CategoriesDamagesTort LawFerdon ex rel. Petrucelli v. Wisconsin Patients Comp. Fund, 2005 WI 125, 284 Wis. 3d 573, 701 N.W.2d 440This lawsuit concerned a claim for medical malpractice during childbirth, which left a newborn with a partially paralyzed, deformed arm. A jury awarded the baby $700,000 in noneconomic damages, but a Wisconsin law capped these damages at $350,000. Writing for the majority, Abrahamson declared the law unconstitutional. Due to the cap, people who suffer severe injuries do not receive full compensation for noneconomic damages, whereas people who sustain minor injuries do. The Wisconsin Supreme Court later reversed this decision, but courts around the country remain divided on this issue.DamagesWischer v. Mitsubishi Heavy Industries America, Inc., 2005 WI 26, 279 Wis. 2d 4, 694 N.W.2d 320A Wisconsin statute provided that in a personal injury action a plaintiff may recover punitive damages from a tortfeasor who showed “an intentional disregard of the rights of the plaintiff.” Writing for the majority, Abrahamson held that this statute requires the plaintiff to prove that the tortfeasor was aware that its conduct was substantially certain to result in a disregard of the plaintiff’s rights, not that the tortfeasor intended to cause the harm that the plaintiff suffered. DamagesStanhope v. Brown County, 90 Wis. 2d 823, 280 N.W.2d 711 (1979)A passenger injured in a car accident sued the county government and its insurers for damages. A statute limited the amount of damages that a government tortfeasor must pay, but not the amount a private tortfeasor would pay for the same accident. Abrahamson held that the legislature had a rational basis for limiting the damages a government tortfeasor must pay: it preserves public funds to ensure that the government can serve the citizenry. However, she further held that if the government tortfeasor has insurance coverage exceeding the statutory limit, the injured party may be compensated from that excess coverage.Return to Opinion Categories
DamagesTort LawFerdon ex rel. Petrucelli v. Wisconsin Patients Comp. Fund, 2005 WI 125, 284 Wis. 3d 573, 701 N.W.2d 440This lawsuit concerned a claim for medical malpractice during childbirth, which left a newborn with a partially paralyzed, deformed arm. A jury awarded the baby $700,000 in noneconomic damages, but a Wisconsin law capped these damages at $350,000. Writing for the majority, Abrahamson declared the law unconstitutional. Due to the cap, people who suffer severe injuries do not receive full compensation for noneconomic damages, whereas people who sustain minor injuries do. The Wisconsin Supreme Court later reversed this decision, but courts around the country remain divided on this issue.
DamagesWischer v. Mitsubishi Heavy Industries America, Inc., 2005 WI 26, 279 Wis. 2d 4, 694 N.W.2d 320A Wisconsin statute provided that in a personal injury action a plaintiff may recover punitive damages from a tortfeasor who showed “an intentional disregard of the rights of the plaintiff.” Writing for the majority, Abrahamson held that this statute requires the plaintiff to prove that the tortfeasor was aware that its conduct was substantially certain to result in a disregard of the plaintiff’s rights, not that the tortfeasor intended to cause the harm that the plaintiff suffered.
DamagesStanhope v. Brown County, 90 Wis. 2d 823, 280 N.W.2d 711 (1979)A passenger injured in a car accident sued the county government and its insurers for damages. A statute limited the amount of damages that a government tortfeasor must pay, but not the amount a private tortfeasor would pay for the same accident. Abrahamson held that the legislature had a rational basis for limiting the damages a government tortfeasor must pay: it preserves public funds to ensure that the government can serve the citizenry. However, she further held that if the government tortfeasor has insurance coverage exceeding the statutory limit, the injured party may be compensated from that excess coverage.
April152022Tribal SovereigntyadminOpinion CategoriesTribal SovereigntySheboygan County v. Neal J.G., 2003 WI 11, 259 Wis. 2d 563, 657 N.W.2d 363When the State seeks to terminate a person’s parental rights to an Indian child, it must comply with the Indian Child Welfare Act, a federal law aimed at promoting the stability of Indian tribes and families. In this case, the majority held that the state court did not have reason to know that the children involved might be Indian. Abrahamson dissented and argued that a father’s assertion that his children had Indian heritage, even if he could not identify the tribe, was sufficient to trigger the federal law.Tribal SovereigntyTeague v. Bad River Band of Lake Superior Tribe of Chippewa Indians, 2003 WI 118, 265 Wis. 2d 64, 655 N.W.2d 899Sometimes an Indian tribal court and a state court have concurrent jurisdiction over a civil dispute. Ultimately, one court must yield to the other—but how do they decide? Abrahamson, writing for the majority, reinforced an earlier ruling that when tribal and state courts realize that they have concurrent jurisdiction over a dispute they should apply principles of comity to determine which court should proceed. Then she listed 13 comity principles and explained how their application fosters tribal self-government and collaboration between tribal and state courts.Return to Opinion Categories
Tribal SovereigntySheboygan County v. Neal J.G., 2003 WI 11, 259 Wis. 2d 563, 657 N.W.2d 363When the State seeks to terminate a person’s parental rights to an Indian child, it must comply with the Indian Child Welfare Act, a federal law aimed at promoting the stability of Indian tribes and families. In this case, the majority held that the state court did not have reason to know that the children involved might be Indian. Abrahamson dissented and argued that a father’s assertion that his children had Indian heritage, even if he could not identify the tribe, was sufficient to trigger the federal law.
Tribal SovereigntyTeague v. Bad River Band of Lake Superior Tribe of Chippewa Indians, 2003 WI 118, 265 Wis. 2d 64, 655 N.W.2d 899Sometimes an Indian tribal court and a state court have concurrent jurisdiction over a civil dispute. Ultimately, one court must yield to the other—but how do they decide? Abrahamson, writing for the majority, reinforced an earlier ruling that when tribal and state courts realize that they have concurrent jurisdiction over a dispute they should apply principles of comity to determine which court should proceed. Then she listed 13 comity principles and explained how their application fosters tribal self-government and collaboration between tribal and state courts.
February72022Election LawadminOpinion CategoriesElection LawState ex rel. Two Unnamed Petitioners v. Peterson, 2015 WI 85, 363 Wis. 2d 1, 866 N. W.2d 165Wisconsin’s campaign finance law prohibits candidates for elective office from coordinating spending by outside groups on “issue advocacy.” “Issue ads” do not expressly ask the public to vote for or against a candidate, but they often attack a candidate’s opponent. In this case, the majority held Wisconsin's law unconstitutional because the First Amendment and the Wisconsin Constitution only permit states to regulate “express advocacy.” Abrahamson dissented, arguing that by adopting a faulty interpretation of the Wisconsin law and the First Amendment, the majority subjected the democratic process to potential corrupting influences. Two years later, the United States Supreme Court summarily affirmed a lower court decision holding that under the First Amendment states may indeed regulate issue advocacy. Independence Institute v. Federal Election Commission, 216 F. Supp.3d 176 (2016), aff’d 137 S. Ct. 1204 (2017). Election LawLeague of Women Voters of Wisconsin Education Network v. Walker, 2014 WI 97, 357 Wis. 2d 360, 851 N.W.2d 302In general, Wisconsin may require voters to verify their identity before casting a ballot. But Act 23 imposed a new restriction: people who meet the constitutional requirements to vote may be stripped of that right if they fail to produce a specific type of government-issued ID. The majority held Act 23 constitutional. Abrahamson dissented, arguing that Act 23 is unconstitutional. She said the majority was following “not James Madison—for whom Wisconsin’s capital city is named—but rather Jim Crow—the name typically used to refer to repressive laws used to restrict rights, including the right to vote, of African-Americans."Return to Opinion Categories
Election LawState ex rel. Two Unnamed Petitioners v. Peterson, 2015 WI 85, 363 Wis. 2d 1, 866 N. W.2d 165Wisconsin’s campaign finance law prohibits candidates for elective office from coordinating spending by outside groups on “issue advocacy.” “Issue ads” do not expressly ask the public to vote for or against a candidate, but they often attack a candidate’s opponent. In this case, the majority held Wisconsin's law unconstitutional because the First Amendment and the Wisconsin Constitution only permit states to regulate “express advocacy.” Abrahamson dissented, arguing that by adopting a faulty interpretation of the Wisconsin law and the First Amendment, the majority subjected the democratic process to potential corrupting influences. Two years later, the United States Supreme Court summarily affirmed a lower court decision holding that under the First Amendment states may indeed regulate issue advocacy. Independence Institute v. Federal Election Commission, 216 F. Supp.3d 176 (2016), aff’d 137 S. Ct. 1204 (2017).
Election LawLeague of Women Voters of Wisconsin Education Network v. Walker, 2014 WI 97, 357 Wis. 2d 360, 851 N.W.2d 302In general, Wisconsin may require voters to verify their identity before casting a ballot. But Act 23 imposed a new restriction: people who meet the constitutional requirements to vote may be stripped of that right if they fail to produce a specific type of government-issued ID. The majority held Act 23 constitutional. Abrahamson dissented, arguing that Act 23 is unconstitutional. She said the majority was following “not James Madison—for whom Wisconsin’s capital city is named—but rather Jim Crow—the name typically used to refer to repressive laws used to restrict rights, including the right to vote, of African-Americans."
February72022Insurance LawadminOpinion CategoriesInsurance LawHedtcke v. Sentry Insurance Co., 109 Wis. 2d 461, 326 N.W.2d 727 (1982)A husband and wife jointly owned their home and were both named insureds on a fire insurance policy. When the wife sued for divorce and the circuit court ordered the husband to vacate their home, he burned it down. The insurance company refused to pay because the husband, one of the insureds, had cause the property damage. Writing for a unanimous court, Abrahamson overruled case law favoring the insurance company and held that an innocent insured under a fire insurance policy is not barred from recovering under the policy merely because another insured intentionally damaged the insured property. Insurance LawRanes v. American Family Mutual Insurance Company, 219 Wis. 2d 49, 580 N.W.2d 197 (1998)An insured person injured in a car accident settled with the tortfeasor and then sued his insurer for underinsured motorist benefits. The insurer claimed that the lack of notice precluded it from seeking subrogation from the tortfeasor. Writing for a unanimous court, Abrahamson brought Wisconsin law in line with that of other states. She held that an insured’s failure to give notice to his insurer that he entered a settlement with the tortfeasor creates a rebuttable presumption that the insurer was prejudiced by the lack of notice. The insured must prove that the insurer was not prejudiced. Return to Opinion Categories
Insurance LawHedtcke v. Sentry Insurance Co., 109 Wis. 2d 461, 326 N.W.2d 727 (1982)A husband and wife jointly owned their home and were both named insureds on a fire insurance policy. When the wife sued for divorce and the circuit court ordered the husband to vacate their home, he burned it down. The insurance company refused to pay because the husband, one of the insureds, had cause the property damage. Writing for a unanimous court, Abrahamson overruled case law favoring the insurance company and held that an innocent insured under a fire insurance policy is not barred from recovering under the policy merely because another insured intentionally damaged the insured property.
Insurance LawRanes v. American Family Mutual Insurance Company, 219 Wis. 2d 49, 580 N.W.2d 197 (1998)An insured person injured in a car accident settled with the tortfeasor and then sued his insurer for underinsured motorist benefits. The insurer claimed that the lack of notice precluded it from seeking subrogation from the tortfeasor. Writing for a unanimous court, Abrahamson brought Wisconsin law in line with that of other states. She held that an insured’s failure to give notice to his insurer that he entered a settlement with the tortfeasor creates a rebuttable presumption that the insurer was prejudiced by the lack of notice. The insured must prove that the insurer was not prejudiced.
February72022EvidenceadminOpinion CategoriesEvidenceSeifert v. Balink, 2017 WI 2, 372 Wis. 2d 525, 888 N.W.2d 816In 2011, the Wisconsin legislature adopted the federal “Daubert standard” that circuit courts must apply when deciding whether to admit an expert’s opinion into evidence. In this case, the Court’s first opportunity to interpret the standard, the justices issued 4 separate opinions. Abrahamson’s opinion established the history, purpose, and methodology of the Daubert standard. She held that an expert physician’s testimony about the standard of care for a family-practice doctor doing obstetrics satisfied Daubert though it was based solely on his own experience. Only the dissenting opinion disagreed with her analysis. EvidenceBrantner v. Jenson, 121 Wis. 2d 658, 360 N.W.2d 529 (1985)Due to a car accident, the plaintiff suffered a back injury and was told he might need surgery. After consulting a surgeon and speaking to his father who had the same surgery, the plaintiff became fearful about the pain and recovery time associated with the procedure. In a unanimous opinion, Abrahamson held that evidence of the plaintiff’s fear of possible future surgery was admissible and could be considered by the jury when determining damages for mental distress from the injury he sustained in the accident. Return to Opinion Categories
EvidenceSeifert v. Balink, 2017 WI 2, 372 Wis. 2d 525, 888 N.W.2d 816In 2011, the Wisconsin legislature adopted the federal “Daubert standard” that circuit courts must apply when deciding whether to admit an expert’s opinion into evidence. In this case, the Court’s first opportunity to interpret the standard, the justices issued 4 separate opinions. Abrahamson’s opinion established the history, purpose, and methodology of the Daubert standard. She held that an expert physician’s testimony about the standard of care for a family-practice doctor doing obstetrics satisfied Daubert though it was based solely on his own experience. Only the dissenting opinion disagreed with her analysis.
EvidenceBrantner v. Jenson, 121 Wis. 2d 658, 360 N.W.2d 529 (1985)Due to a car accident, the plaintiff suffered a back injury and was told he might need surgery. After consulting a surgeon and speaking to his father who had the same surgery, the plaintiff became fearful about the pain and recovery time associated with the procedure. In a unanimous opinion, Abrahamson held that evidence of the plaintiff’s fear of possible future surgery was admissible and could be considered by the jury when determining damages for mental distress from the injury he sustained in the accident.
February42022Tort LawadminOpinion CategoriesTort LawBowen v. Lumbermens Mut. Cas. Co., 183 Wis. 2d 627, 517 N.W.2d 432 (1994)A mother who witnessed the aftermath of a bicycle accident that killed her son brought a claim for negligent infliction of emotional distress. At the time, Wisconsin law barred her claim because she was not in the “zone of danger” and her distress had no physical manifestations. Abrahamson’s majority opinion established new rules governing claims of negligent infliction of emotional distress, and they allowed the mother to pursue her claim.Tort LawWangen v. Ford Motor Co., 97 Wis. 2d 260, 294 N.W.2d 437 (1980)Ford Motor Company knew that its 1976 Mustangs had a gas tank defect but did not fix it or warn consumers about it. The defect killed and injured people. Ford was sued for products liability, a doctrine that holds a manufacturer liable for injuries caused by placing a defective product in the hands of a consumer. In this opinion, Abrahamson surveyed the history of punitive damages in Wisconsin and around the country and established that punitive damages may be recovered in a products liability case.Tort LawJohnson v. Kokemoor, 199 Wis. 2d 615, 545 N.W. 2d 495 (1996)A doctor did not tell his patient that he was inexperienced in performing a difficult aneurysm surgery, that experienced surgeons could achieve better outcomes, and that he could refer the patient to a facility staffed with experienced surgeons. The doctor’s surgery left the patient a quadriplegic. Abrahamson’s opinion established that where provider-specific risk information is relevant to the patient’s decision, the doctor has a duty provide it before obtaining her “informed consent” to a procedure.Tort LawHoven v. Kelble, 79 Wis. 2d 444, 256 N.W.2d 379 (1977)Under the doctrine of res ipsa loquitor, a court or jury may infer that a defendant was negligent without any direct testimony about his conduct at the time the negligence occurred. Instead, the plaintiff must show that the accident could not have occured in the absence of negligence, and that the defendant had “exclusive control” over the instrument of negligence. Abrahamson’s majority opinion clarified the definition of “exclusive control” so that more of these claims could be pursued by injured people.DamagesTort LawFerdon ex rel. Petrucelli v. Wisconsin Patients Comp. Fund, 2005 WI 125, 284 Wis. 3d 573, 701 N.W.2d 440This lawsuit concerned a claim for medical malpractice during childbirth, which left a newborn with a partially paralyzed, deformed arm. A jury awarded the baby $700,000 in noneconomic damages, but a Wisconsin law capped these damages at $350,000. Writing for the majority, Abrahamson declared the law unconstitutional. Due to the cap, people who suffer severe injuries do not receive full compensation for noneconomic damages, whereas people who sustain minor injuries do. The Wisconsin Supreme Court later reversed this decision, but courts around the country remain divided on this issue.Tort LawLestina v. West Bend Mutual Insurance Co., 176 Wis. 2d 901, 501 N.W.2d 28 (1993)A soccer player sued an opposing team’s players for leg injuries suffered during an organized game. In most states, participants in contact sports could recover damages for injuries only if they were inflicted intentionally or through reckless misconduct. Writing for a majority, Abrahamson held that the injured player need only prove negligence—that the player who caused the injury failed to use that degree of care which would be exercised by a reasonable person under the circumstances. Applied to recreational sports, this standard requires consideration of matters such as the sport’s risks, rules, customs, and level of physical contact. Return to Opinion Categories
Tort LawBowen v. Lumbermens Mut. Cas. Co., 183 Wis. 2d 627, 517 N.W.2d 432 (1994)A mother who witnessed the aftermath of a bicycle accident that killed her son brought a claim for negligent infliction of emotional distress. At the time, Wisconsin law barred her claim because she was not in the “zone of danger” and her distress had no physical manifestations. Abrahamson’s majority opinion established new rules governing claims of negligent infliction of emotional distress, and they allowed the mother to pursue her claim.
Tort LawWangen v. Ford Motor Co., 97 Wis. 2d 260, 294 N.W.2d 437 (1980)Ford Motor Company knew that its 1976 Mustangs had a gas tank defect but did not fix it or warn consumers about it. The defect killed and injured people. Ford was sued for products liability, a doctrine that holds a manufacturer liable for injuries caused by placing a defective product in the hands of a consumer. In this opinion, Abrahamson surveyed the history of punitive damages in Wisconsin and around the country and established that punitive damages may be recovered in a products liability case.
Tort LawJohnson v. Kokemoor, 199 Wis. 2d 615, 545 N.W. 2d 495 (1996)A doctor did not tell his patient that he was inexperienced in performing a difficult aneurysm surgery, that experienced surgeons could achieve better outcomes, and that he could refer the patient to a facility staffed with experienced surgeons. The doctor’s surgery left the patient a quadriplegic. Abrahamson’s opinion established that where provider-specific risk information is relevant to the patient’s decision, the doctor has a duty provide it before obtaining her “informed consent” to a procedure.
Tort LawHoven v. Kelble, 79 Wis. 2d 444, 256 N.W.2d 379 (1977)Under the doctrine of res ipsa loquitor, a court or jury may infer that a defendant was negligent without any direct testimony about his conduct at the time the negligence occurred. Instead, the plaintiff must show that the accident could not have occured in the absence of negligence, and that the defendant had “exclusive control” over the instrument of negligence. Abrahamson’s majority opinion clarified the definition of “exclusive control” so that more of these claims could be pursued by injured people.
DamagesTort LawFerdon ex rel. Petrucelli v. Wisconsin Patients Comp. Fund, 2005 WI 125, 284 Wis. 3d 573, 701 N.W.2d 440This lawsuit concerned a claim for medical malpractice during childbirth, which left a newborn with a partially paralyzed, deformed arm. A jury awarded the baby $700,000 in noneconomic damages, but a Wisconsin law capped these damages at $350,000. Writing for the majority, Abrahamson declared the law unconstitutional. Due to the cap, people who suffer severe injuries do not receive full compensation for noneconomic damages, whereas people who sustain minor injuries do. The Wisconsin Supreme Court later reversed this decision, but courts around the country remain divided on this issue.
Tort LawLestina v. West Bend Mutual Insurance Co., 176 Wis. 2d 901, 501 N.W.2d 28 (1993)A soccer player sued an opposing team’s players for leg injuries suffered during an organized game. In most states, participants in contact sports could recover damages for injuries only if they were inflicted intentionally or through reckless misconduct. Writing for a majority, Abrahamson held that the injured player need only prove negligence—that the player who caused the injury failed to use that degree of care which would be exercised by a reasonable person under the circumstances. Applied to recreational sports, this standard requires consideration of matters such as the sport’s risks, rules, customs, and level of physical contact.
February42022Separation of PowersadminOpinion CategoriesSeparation of PowersState v. Holmes, 106 Wis. 2d 31, 315 N.W.2d 703 (1982)Litigants have the right to request a substitute judge for their case if they follow certain procedures. Abrahamson held that the doctrine of separation of powers does not demand a strict division of functions among the three branches. Some powers are shared. The substitution of trial judges is an aspect of the judicial system which may be regulated by the legislature, subject to the Wisconsin Supreme Court’s authority to preserve the integrity of the judicial system and the doctrine of separation of powers.Return to Opinion Categories
Separation of PowersState v. Holmes, 106 Wis. 2d 31, 315 N.W.2d 703 (1982)Litigants have the right to request a substitute judge for their case if they follow certain procedures. Abrahamson held that the doctrine of separation of powers does not demand a strict division of functions among the three branches. Some powers are shared. The substitution of trial judges is an aspect of the judicial system which may be regulated by the legislature, subject to the Wisconsin Supreme Court’s authority to preserve the integrity of the judicial system and the doctrine of separation of powers.
February42022Property LawadminOpinion CategoriesProperty LawPrah v. Maretti, 108 Wis. 2d 223, 321 N.W.2d 182 (1982)Historically, Wisconsin law did not permit one landowner to sue another landowner for obstructing access to sunlight across his property. Recognizing that by the 1980s sunlight had become viable alternative energy source, Abrahamson held, as an issue of first impression, that an owner of a solar-heated residence has a claim for private nuisance when his neighbor’s proposed construction interferes with his access to sunlight.Return to Opinion Categories
Property LawPrah v. Maretti, 108 Wis. 2d 223, 321 N.W.2d 182 (1982)Historically, Wisconsin law did not permit one landowner to sue another landowner for obstructing access to sunlight across his property. Recognizing that by the 1980s sunlight had become viable alternative energy source, Abrahamson held, as an issue of first impression, that an owner of a solar-heated residence has a claim for private nuisance when his neighbor’s proposed construction interferes with his access to sunlight.
February42022Open RecordsadminOpinion CategoriesOpen RecordsState ex rel. Bilder v. Town of Delavan, 112 Wis. 2d 539, 334 N.W.2d 252 (1983)A police chief sued the Town of Delavan regarding his suspension for alleged misconduct while in office. A newspaper sought access to the court file. In a unanimous opinion, Abrahamson held that newspapers have a protectible legal interest in opening court documents for public examination. Pleadings and exhibits on file with the circuit court fall within Wis. Stats. §59.14, which reflects a basic tenet of democracy--people have the right to know about the operations of their government, including the judicial branch. There are limited exceptions to this rule, but the police chief did not meet them.Open RecordsSchill v. Wisconsin Rapids School District, 2010 WI 86, 327 Wis. 2d 572, 786 N.W.2d 177Wisconsin drafted its public records law before email technology existed. This case involved an open records request for personal emails that teachers sent and received on government email and computer systems. Abrahamson held that Wisconsin’s Public Records Law is a powerful tool for keeping track of government, and email generally qualifies as a “record” under that law. However, personal emails that evince no violation of law or policy should not be released to the public simply because they were sent and received on government email and computer systems.Return to Opinion Categories
Open RecordsState ex rel. Bilder v. Town of Delavan, 112 Wis. 2d 539, 334 N.W.2d 252 (1983)A police chief sued the Town of Delavan regarding his suspension for alleged misconduct while in office. A newspaper sought access to the court file. In a unanimous opinion, Abrahamson held that newspapers have a protectible legal interest in opening court documents for public examination. Pleadings and exhibits on file with the circuit court fall within Wis. Stats. §59.14, which reflects a basic tenet of democracy--people have the right to know about the operations of their government, including the judicial branch. There are limited exceptions to this rule, but the police chief did not meet them.
Open RecordsSchill v. Wisconsin Rapids School District, 2010 WI 86, 327 Wis. 2d 572, 786 N.W.2d 177Wisconsin drafted its public records law before email technology existed. This case involved an open records request for personal emails that teachers sent and received on government email and computer systems. Abrahamson held that Wisconsin’s Public Records Law is a powerful tool for keeping track of government, and email generally qualifies as a “record” under that law. However, personal emails that evince no violation of law or policy should not be released to the public simply because they were sent and received on government email and computer systems.
February42022New FederalismadminOpinion CategoriesCriminal LawNew FederalismState v. Forbush, 2011 WI 25, 332 Wis. 2d 620, 796 N.W.2d 741Wisconsin long recognized that if the State charged a person with a crime, and the person had retained or appointed counsel, the 6th Amendment precluded the police from questioning him or her. This case addressed a new United States Supreme Court decision, which held that the 6th Amendment permits police to question a person charged with a crime unless he invokes the right to counsel. Wisconsin’s justices could not agree on a majority opinion. Abrahamson, one of the nation’s leading proponents of “new federalism,” filed a concurrence arguing that Article I, §7 of the Wisconsin Constitution should be interpreted to continue the longstanding rule because it better protects the right to counsel.Criminal LawNew FederalismState v. Pallone, 2000 WI 77, 236 Wis.2d 162, 613 N.W.2d 568Under the “new federalism” doctrine, the United States Constitution establishes minimum individual rights, but state courts may interpret their own constitutions as providing greater rights. Following New York v. Belton, 453 U.S. 454 (1981), a majority of the Wisconsin Supreme Court held that when officers arrest the driver of a car, the 4th Amendment permits them to search the entire car including containers, purses, bags or luggage in the passenger compartment. Abrahamson dissented arguing that the scope of warrantless searches had reached a shockingly low standard and that, under “new federalism”, Article 1, §11 of the Wisconsin Constitution can and should be construed to preclude police from searching passenger areas of a car without a warrant, and that therefore Wisconsin should reject Belton. Ten years later, the United States Supreme Court rejected the majority’s understanding of the 4th Amendment, which prompted the Wisconsin Supreme Court to overrule Pallone. See State v. Dearborn, 2010 WI 84, 327 Wis. 2d 252, 786 N.W.2d 97.Return to Opinion Categories
Criminal LawNew FederalismState v. Forbush, 2011 WI 25, 332 Wis. 2d 620, 796 N.W.2d 741Wisconsin long recognized that if the State charged a person with a crime, and the person had retained or appointed counsel, the 6th Amendment precluded the police from questioning him or her. This case addressed a new United States Supreme Court decision, which held that the 6th Amendment permits police to question a person charged with a crime unless he invokes the right to counsel. Wisconsin’s justices could not agree on a majority opinion. Abrahamson, one of the nation’s leading proponents of “new federalism,” filed a concurrence arguing that Article I, §7 of the Wisconsin Constitution should be interpreted to continue the longstanding rule because it better protects the right to counsel.
Criminal LawNew FederalismState v. Pallone, 2000 WI 77, 236 Wis.2d 162, 613 N.W.2d 568Under the “new federalism” doctrine, the United States Constitution establishes minimum individual rights, but state courts may interpret their own constitutions as providing greater rights. Following New York v. Belton, 453 U.S. 454 (1981), a majority of the Wisconsin Supreme Court held that when officers arrest the driver of a car, the 4th Amendment permits them to search the entire car including containers, purses, bags or luggage in the passenger compartment. Abrahamson dissented arguing that the scope of warrantless searches had reached a shockingly low standard and that, under “new federalism”, Article 1, §11 of the Wisconsin Constitution can and should be construed to preclude police from searching passenger areas of a car without a warrant, and that therefore Wisconsin should reject Belton. Ten years later, the United States Supreme Court rejected the majority’s understanding of the 4th Amendment, which prompted the Wisconsin Supreme Court to overrule Pallone. See State v. Dearborn, 2010 WI 84, 327 Wis. 2d 252, 786 N.W.2d 97.