My Garage Is Bigger Than Yours

My Garage Is Bigger Than Yours

As of late, Wisconsin courts have been grappling with one of the most important questions facing the nation: What is a garage? Is it defined by size or exterior proportions? Do the construction materials define what it means to be a garage? Attached or detached? Is it defined by the contents it holds within? Or should it be defined by the conduct of those who frequent the garage?

For those among us who have long grappled with these fundamental issues, rest easy as the Wisconsin Court of Appeals in Buehrens v. Schave provides clarity. Like all good lawsuits, it started between feuding neighbors. The Schaves built a “building” with “an electric garage door” that is “thirty-six feet by eighty feet, reaching sixteen feet high.” To put this in context, the Schaves’ building was the dimensional equivalent of a great blue whale. Angry neighbors decried that it was a “pole barn” that violated restrictive covenants “as its size rendered it something other than a garage.” Without casting judgment, it is fair to say that there is no community barn-raising taking place in this subdivision.

In filing their lawsuit, the neighbors asked the court to order the building removed. The Schaves would have none of it and declared that the building fell squarely within the definition of a “garage.” Which, of course, was allowed by the subdivision’s covenants. To determine the fate of the building, the court turned to Webster’s Dictionary. There, the court found that “a reputable dictionary defines ‘garage’ as ‘a building or compartment of a building used for housing an automotive vehicle’.” With this definition, the court waved its wand and crowned the “building” a “garage” because the Schaves could show it was used for storing automobiles. As a result, the Schaves get to keep their garage.

However, the case reveals the problem with clear-line definitions. For instance, if the Schaves decided not to store automobiles would it revert to a pole barn and lose its status as a garage? Also, as most of us know, many garages have never been kissed by the warm rubber of a car’s tire, but instead have been disgraced by boxes of endless clutter. Does this make such a structure any less of a garage? Wouldn’t it be as good, if not better, to define a garage based on the activities that take place within such as band practice and startup companies? Otherwise, what fate befalls punk rock bands like Nirvana and industrious businesses following in the footsteps of Apple? To me, defining a garage by one item that may be found inside is like defining a human by the presence of an appendix or tonsils.

 

The COVID Trials

The COVID Trials

The constitutional right to a jury trial does not take a back seat to coronavirus (COVID-19.) Yet, COVID-19 has impacted the ability of courts to supply juries for trial. The Seventh Amendment codifies the right to a jury trial not only for criminal trials, but in civil cases as well. This article explores how courts are grappling with the challenge of seating a jury and trying cases.  Litigants know too well the meaning of the legal maxim, “justice delayed is justice denied.” Nevertheless, a jury that is distracted and afraid for their physical well-being because of COVID-19 cannot deliver justice. Herein lies the conflict facing our courts – the right to a jury of one’s peers and juror’s right to safety.

One of the first federal judges to resume jury trials during the COVID-19 pandemic likened the experience to “building an airplane while you’re flying it.” A playbook for resuming jury trials is emerging from these pioneering judges who have conducted jury trials in the wake of COVID-19.

First, the layout and the physical arrangement of jurors, in particular the confinement of the jury box, must be addressed. One solution has been to spread jurors out in the gallery — to allow for social distancing. Going further, other courtrooms have added physical barriers and guards. In addition to plexiglass barriers, some courts have installed audio systems with headsets that enable clients and lawyers to whisper to each other, much as they would in a traditional courtroom, but from a safe distance. One such recommendation is to proceed with smaller juries.  For instance, Wisconsin law allows for a jury of six persons in civil cases.

The next set of the recommendations focus on safety practices, which include requiring facial coverings be worn by all individuals in the courtroom (judges and staff included), having prospective jurors’ temperatures taken as they enter the court building, providing hand sanitizer, disinfectant wipes, disinfectant spray and paper towels. Another practical policy is to avoid passing exhibits between jurors.

Courts also have wrestled with the question of who must wear masks in the courtroom. Most courts seem to be on the side of masks for all persons in the courtroom. This is problematic because of the difficulty of assessing credibility of someone in a mask, a core function of the jury. Where possible, courts have permitted witnesses to be examined without masks, via video from within a room in the courthouse.

The challenges of in-person jury trials have led some courts to experiment with more novel ideas. Could a jury trial be conducted by Zoom? It appears so. Remote civil jury trial pilot programs in Florida and Texas are already in place. A jury trial that occurred in Florida commenced entirely via Zoom; some potential jurors had to be dismissed for technical issues during jury selection. As expected, audio and video feeds occasionally froze. The judge was often asking each individual juror: “Can you see me? Can you hear me?” Despite technical issues, the Florida Zoom trial was successful.

There is no single antidote for resuming jury trials in the wake of this pandemic. In the words of Hibbing, Minnesota’s most famous resident, “the times they are a-changin’.” More than ever, courts and communities must work together to safely preserve the right to a jury trial and concomitant duty to serve as a juror.

 

Employees’ Voting Rights in Wisconsin

Employees’ Voting Rights in Wisconsin

With in-person national, state and local partisan voting set for Tuesday, November 3, 2020, it is timely for employees and employers to review Wisconsin law with respect to voting rights.

An employer must allow an employee to be absent from work to vote in a political election for up to three consecutive hours while the polls are open, if the employee requests such time off before the day of the election. However, the employer may decide the time of the workday for such an absence. The employee is not entitled to be paid for the time away from work but depending on workplace rules (check the employee handbook), the employee may substitute paid time off for time that is otherwise unpaid.

For this election, registered Wisconsin voters may request an absentee ballot. Due to the growing popularity of voting by absentee ballot, it may be that employers experience fewer requests by employees for leave to vote on the day of the election. An employer may request an employee who requests to leave to vote on election day to certify that he or she has not voted by absentee ballot.

An employer is prohibited from penalizing an employee who is absent from work to vote after making previous arrangements with the employer to vote.

May an employee take an unpaid leave of absence from work to work as an election official?

Wisconsin law requires every employer to grant an unpaid leave of absence to each employee who is appointed to serve as an election official, as long as the employee who is serving as an election official provides his or her employer with at least seven days’ notice. The leave is for the entire 24-hour period of each election day in which the employee serves in his or her official capacity as an election official. Upon the request of any employer, a municipal clerk must verify such appointment. In this instance, an employee who wishes to serve as an election official must notify the employer of such appointment no later than October 26, 2020.

Employers may not use threats of discharge, threats of compensation reduction, promise compensation increases to influence exercise of an employee’s voting rights, discriminate against employees who refuse to participate in employer communications about political matters, or display or otherwise circulate communications containing threats to reduce compensation or conduct layoffs depending upon election results.

Wisconsin employers may not discriminate against employees because of their use of lawful products. Use of lawful products may be broadly defined in certain circumstances to include such things as blogging software, Twitter, political signage and other products used to speak. Therefore, an employer needs to consider all Wisconsin laws before it acts with respect to an employee who is exercising his or her voting or speech rights.

Under Wisconsin’s constitution, there is a right to free speech: “Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right and no law shall be passed to restrain or abridge the liberty of speech or of the press. . .” However, this right of free speech applies to state/governmental action, not action by a private employer. Jacobs v. Major, 139 Wis. 2d 492 (1987).

For any questions that an employer or an employee may have with respect to workplace rules that affect employees’ right to vote, contact your employment lawyer or human resources professional.

 

TIF – A Development Tool for New and Expanding Businesses

TIF – A Development Tool for New and Expanding Businesses

My litigation practice has taken me into many areas of law in my career, including handling matters for both municipal and business clients that involve tax incremental financing (TIF.) Despite these turbulent economic times, new and existing businesses as well as municipalities are still searching for ways to move forward. TIF may be one very useful tool for a successful public-private partnership.

TIF is a mechanism for financing development from taxes that are generated from a tax incremental district (TID.)  TIDs, governed by state law, have been in existence for decades. In simple terms, a TID is a geographic area that is created to advance development within the district for a limited time. The tax revenue generated on property within the TID at the time of creation will continue to be shared with overlying tax entities. However, tax revenue generated from new development within the TID will be retained entirely by the TID to finance further development during its life.

Financing can come in many forms. Cash grants to new and expanding businesses to incentivize development may be one such form. Pay-as-you-go incentives, which involve developers retaining tax revenue generated by their own specific development, may be another form. Hybrid arrangements of these two financing tools are another potential.

For new businesses especially, TIF can serve as added security for a lender. Moreover, TIF may often work in combination with private financing, other state incentives and gap financing to make a new business venture a reality and a win-win for business and local taxpayers in the long run.

However, a win-win situation starts with understanding the options available, the typical municipal processes to go through and ultimately structuring a strong development agreement.  Poorly drafted development agreements can lead to litigation from both sides.  Securing TIF advice from municipal counsel early in the process can pay dividends and avoid problems on either side down the line.

 

Don’t Get Burned by “Fire” Insurance’s 12-month Statute of Limitation

Don’t Get Burned by “Fire” Insurance’s 12-month Statute of Limitation

If you were trying to get yourself to sleep by perusing the Wisconsin Statutes on Insurance Contracts, you may run across Wis. Stat. § 631.83(1)(a) – statutory periods of limitation on fire insurance.  The section states: “An action on a fire insurance policy must be commenced within 12 months after the inception of the loss.  This rule also applies to riders or endorsements attached to a fire insurance policy covering loss or damage to property or to the use of or income from property from any cause, and to separate windstorm or hail insurance policies.”  This is a sneaky statute that can have huge implications for homeowners and should be known by all.

First, “fire insurance” means a whole lot more than just “fire.”  In fact, Wisconsin courts have said that “fire insurance” is merely a “generic term” that “covers indemnity insurance for losses to property caused by many other perils than fire.”  Villa Clement, Inc. v. Nat’l Union Fire Ins. Co., 120 Wis. 2d 140 (Ct. App. 1984).  “Fire insurance” is broad enough to include perils such as fire, lightning, hail, tornado and even theft.  Considering the many possible causes of property damage that have nothing to do with actual fire, it is crucial to know that this 12-month statute of limitation applies “to any suit to recover for loss from any peril covered by the policy.”  Id. at 145-46.

Second, fire insurance’s statutory limitation of 12 months is much shorter than many commonly known statutes of limitation in Wisconsin, such as three years for most negligence actions or six years for most contract disputes.  Also, the limitation is 12 months “after the inception of the loss,” not the discovery of the loss.  Wisconsin courts have ruled that “inception of the loss” unambiguously means the date on which the loss occurs.  It does not matter when the owner-insureds discover the damage.  In other words, it is the date of the storm that is important, not the date you discovered the hail damage.

As such, if you are unable to reach an agreement with your insurance company on your property damage, it is crucial to act fast, getting counsel or filing suit yourself, to avoid having your claim completely time-barred by this sneaky 12‑month cutoff.

 

What is a Supported Decision-Making Agreement?

What is a Supported Decision-Making Agreement?

A supported decision-making agreement is a method of decision-making available to individuals with disability through an arrangement with another trusted person. These agreements give individuals with functional impairments the ability to create a formal arrangement for support that service providers must recognize, while retaining rights and self-direction that might otherwise be lost through guardianship or even by using power of attorney. These agreements are based on three principles: (1) that everyone has the right to make choices, (2) that people can get help making choices without giving up that right, and (3) that people will often need help in understanding, making and communicating their choices.

With supported decision-making agreements, the individual retains their right to make decisions. The individual can make their own decisions and they can identify areas of their life where they would like to have someone support them in their decision making. The supporter would assist the functionally impaired individual in gathering information, comparing the different options, as well as helping the individual communicate their decision to a third party. All the tasks that the supporter can assist with are only used to assist the functionally impaired individual and it does not give the supporter any legal authority over the individual. Therefore, these agreements can be useful in maintaining the impaired individual’s rights and self-direction.

These agreements can be used in combination with other legal arrangements, such as power of attorney and/or guardianship. These documents are not mutually exclusive and in fact can be used to complement each other. A supported decision-making agreement can help cover areas that are not traditionally covered by a power of attorney, such as housing, filing taxes or even choosing a service provider. Additionally, these agreements can be a way to transition an individual to more support when needed, especially in cases where the individual’s impairment gets worse over time.

It is important to note that a supported decision-making agreement is distinctly different from a power of attorney. Firstly, the supporter does not have any authority to make the decision for the individual. The impaired individual still retains their right to make the decision, whether or not the supporter agrees with the decision is irrelevant. Secondly, the supporter does not have the legal authority to sign documents for the impaired individual or bind that individual to a legal agreement. Lastly, the supporter is limited in their role by the specific terms of the agreement as determined by the impaired individual. Therefore, the impaired individual can specifically designate in what areas and to what extent the supporter is allowed to assist with the decision-making process.

In respect to guardianship proceedings, the presence of a supported decision-making agreement is not evidence of incapacity or incompetency. In fact, now during a guardianship proceeding, the judge must consider the use of alternatives to guardianship. These alternatives include whether a supported decision-making agreement has been attempted. Additionally, the judge may consider whether less restrictive means, such as a supported decision-making agreement, could be used in the situation. Therefore, it is important to consider whether a supported decision-making agreement would be a feasible possibility for an impaired individual prior to considering a full guardianship proceeding.

If considering entering into a supported decision-making agreement, it may be a good idea to get your attorney involved. When entering into these types of agreements, it is important to consider what areas you would like support in your decision-making and what kind of support you would want. You need to consider if you would like the supporter to gather information, help you understand your options and/or help you communicate those decisions. Additionally, it will be important to consider the person you would like to designate as your supporter. Who will be able to assist you the most effectively in making decisions in certain areas of your life? Due to all of these considerations that go into the process of drafting a supported decision-making agreement, it is important that an attorney assist you in making sure the agreement represents your wishes and provides you with the needed support you require in making decisions.

 

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