discretionary standard in Wisconsin

2007State v. Veach, 2002 WI 110, ¶55 , 255 Wis. 2d 390 , 648 N.W.2d 447 .

2007State v. Veach, 2002 WI 110, ¶55 , 255 Wis. 2d 390 , 648 N.W.2d 447 .

2023Applying a discretionary standard of review, the court of appeals determined "the circuit court could [still] reasonably conclude that the testimony was not being offered to show that [Agent] Clauer had, in fact, observed the transaction but, rather, to show why [Sergeant Winterscheidt] had taken subsequent investigative steps." Id. (citation omitted).

2023Applying a discretionary standard of review, the court of appeals determined "the circuit court could [still] reasonably conclude that the testimony was not being offered to show that [Agent] Clauer had, in fact, observed the transaction but, rather, to show why [Sergeant Winterscheidt] had taken subsequent investigative steps." Id. (citation omitted).

2022STAT. § 893.80(4), ultimately concluding that “the absolute immunity statute and the discretionary immunity statute both apply to claims based on accumulations of snow or ice[.]” Knoke v. City of Monroe, 2021 WI App 6, ¶¶13-25, 30-31 , 395 Wis. 2d 551 , 953 N.W.2d 889 . 5 No. 2020AP1473 judgment.” Lodl, 253 Wis. 2d 323, ¶21 .

2020Discretionary immunity also serves separation of powers principles by ensuring that courts do not use tort law to “pass judgment on the policy decisions made by coordinate branches of government.” Schmeling v. Phelps, 212 Wis. 2d 898, 911 , 569 N.W.2d 784 (Ct. App. 1997). ¶34 Certain circumstances are not protected by discretionary immunity, and these include “the performance of ministerial duties imposed by law” and “known and compelling dangers that give rise to ministerial duties on the part of public officers or employees[.]”6 Lodl, 253 Wis. 2d 323, ¶24 .

2022See State v. Avery, 2013 WI 13, ¶32 , 345 Wis. 2d 407 , 826 N.W.2d 60 (“When weighing the new evidence against the evidence presented at trial, we cannot say that the circuit court erroneously exercised its discretion when it concluded that the photogrammetry evidence would not create a reasonable doubt in the minds of the jury.” (emphasis omitted)); State v. Edmunds, 2008 WI App 33, ¶16 , 308 Wis. 2d 374 , 746 N.W.2d 590 (appearing to apply a discretionary standard of review to the circuit court’s determination that “there was not a reasonable probability a new result would be reached with a

2022See State v. Avery, 2013 WI 13, ¶32 , 345 Wis. 2d 407 , 826 N.W.2d 60 (“When weighing the new evidence against the evidence presented at trial, we cannot say that the circuit court erroneously exercised its discretion when it concluded that the photogrammetry evidence would not create a reasonable doubt in the minds of the jury.” (emphasis omitted)); State v. Edmunds, 2008 WI App 33, ¶16 , 308 Wis. 2d 374 , 746 N.W.2d 590 (appearing to apply a discretionary standard of review to the circuit court’s determination that “there was not a reasonable probability a new result would be reached with a

1993See Schulze & Burch, 831 F.2d at 716 ; Pacific Reinsurance, 814 F.2d at 1329 .

1993See Schulze & Burch, 831 F.2d at 716 ; Pacific Reinsurance, 814 F.2d at 1329 .

2026Cody v. Dane County, 2001 WI App 60 , ¶20 n.5, 242 Wis. 2d 173 , 625 N.W.2d 630 (citations omitted); § 893.80(4) (granting immunity to governmental entities, not individuals, for intentional torts).

2026Cody v. Dane County, 2001 WI App 60 , ¶20 n.5, 242 Wis. 2d 173 , 625 N.W.2d 630 (citations omitted); § 893.80(4) (granting immunity to governmental entities, not individuals, for intentional torts).

2023That decision is upheld as long as the court “examined the relevant facts, applied a proper legal standard, and reached a reasonable conclusion using a demonstrated rational process.” State v. Mayo, 2007 WI 78, ¶31 , 301 Wis. 2d 642 , 734 N.W.2d 115 . ¶25 The following additional background illustrates that Dr. Bales and Lashock relied on statements of out-of-court declarants in giving the testimony about alleged historical incidents that G.T.H. challenges. 6 Professor Blinka explains that “[h]earsay’s greatest defect is the … absence of [declarant] demeanor, oath, and cross-examination at the

2023That decision is upheld as long as the court “examined the relevant facts, applied a proper legal standard, and reached a reasonable conclusion using a demonstrated rational process.” State v. Mayo, 2007 WI 78, ¶31 , 301 Wis. 2d 642 , 734 N.W.2d 115 . ¶25 The following additional background illustrates that Dr. Bales and Lashock relied on statements of out-of-court declarants in giving the testimony about alleged historical incidents that G.T.H. challenges. 6 Professor Blinka explains that “[h]earsay’s greatest defect is the … absence of [declarant] demeanor, oath, and cross-examination at the

2021Alternatively, the circuit court could choose to dismiss the action with prejudice.” A.L., 385 Wis. 2d 612 , ¶22 n.8. 10 Nos. 2017AP138 2017AP139 the effect of the circuit court’s orders denying the State’s motions to resume the proceedings is that the cases remain in suspended status and will remain there indefinitely—an outcome that the A.L. court rejected.

2020These exceptions “overlap to an extent, inasmuch as they both require the identification of a ministerial duty.” Pries v. McMillon, 2010 WI 63, ¶24 , 326 Wis. 2d 37 , 784 N.W.2d 648 . ¶35 “[T]he ministerial duty exception is not so much an exception as a recognition that immunity law distinguishes between discretionary and ministerial acts, immunizing the performance of the former but not the latter.” Lodl, 253 Wis. 2d 323, ¶25 .

2020These exceptions “overlap to an extent, inasmuch as they both require the identification of a ministerial duty.” Pries v. McMillon, 2010 WI 63, ¶24 , 326 Wis. 2d 37 , 784 N.W.2d 648 . ¶35 “[T]he ministerial duty exception is not so much an exception as a recognition that immunity law distinguishes between discretionary and ministerial acts, immunizing the performance of the former but not the latter.” Lodl, 253 Wis. 2d 323, ¶25 .

2020Discretionary immunity also serves separation of powers principles by ensuring that courts do not use tort law to “pass judgment on the policy decisions made by coordinate branches of government.” Schmeling v. Phelps, 212 Wis. 2d 898, 911 , 569 N.W.2d 784 (Ct. App. 1997). ¶34 Certain circumstances are not protected by discretionary immunity, and these include “the performance of ministerial duties imposed by law” and “known and compelling dangers that give rise to ministerial duties on the part of public officers or employees[.]”6 Lodl, 253 Wis. 2d 323, ¶24 .

2020Discretionary immunity also serves separation of powers principles by ensuring that courts do not use tort law to “pass judgment on the policy decisions made by coordinate branches of government.” Schmeling v. Phelps, 212 Wis. 2d 898, 911 , 569 N.W.2d 784 (Ct. App. 1997). ¶34 Certain circumstances are not protected by discretionary immunity, and these include “the performance of ministerial duties imposed by law” and “known and compelling dangers that give rise to ministerial duties on the part of public officers or employees[.]”6 Lodl, 253 Wis. 2d 323, ¶24 .

2020Although Knoke did not advance this argument before the circuit court, he advances it now on appeal. ¶12 Knoke’s primary argument is based on Morris v. Juneau County, 219 Wis. 2d 543 , 579 N.W.2d 690 (1998).

2020Although Knoke did not advance this argument before the circuit court, he advances it now on appeal. ¶12 Knoke’s primary argument is based on Morris v. Juneau County, 219 Wis. 2d 543 , 579 N.W.2d 690 (1998).

2020Gordon, Dennis, and Karl do not acknowledge this discretionary standard of review or attempt to explain why they believe the court erroneously exercised its discretion under the specific facts of this case. ¶78 Instead, Gordon, Dennis, and Karl cite Wickert v. Burggraf, 214 Wis. 2d 426 , 570 N.W.2d 889 (Ct. App. 1997), in support of their argument that John and Marlene waived their right to object to the circuit court holding a jury trial.

2020Gordon, Dennis, and Karl do not acknowledge this discretionary standard of review or attempt to explain why they believe the court erroneously exercised its discretion under the specific facts of this case. ¶78 Instead, Gordon, Dennis, and Karl cite Wickert v. Burggraf, 214 Wis. 2d 426 , 570 N.W.2d 889 (Ct. App. 1997), in support of their argument that John and Marlene waived their right to object to the circuit court holding a jury trial.

2016See Haldane v. State, 85 Wis. 2d 182, 188-89 , 270 N.W.2d 75 (1978)(" Generally, questions of consolidation or severance are within the trial court's discretion."); Holmes v. State, 63 Wis. 2d 389, 395-96 , 217 N.W.2d 647 (1974)("What is involved is an exercise of trial court discretion."); State v. Brown, 114 Wis. 2d 554, 559 , 338 N.W.2d 859 (Ct. App. 1983)(same).

2016See Haldane v. State, 85 Wis. 2d 182, 188-89 , 270 N.W.2d 75 (1978)("Generally, questions of consolidation or severance are within the trial court's discretion."); Holmes v. State, 63 Wis. 2d 389, 395-96 , 217 N.W.2d 647 (1974)("What is involved is an exercise of trial court discretion."); State v. Brown, 114 Wis. 2d 554, 559 , 338 N.W.2d 859 (Ct. App. 1983)(same).

2016See Haldane v. State, 85 Wis. 2d 182, 188-89 , 270 N.W.2d 75 (1978)(" Generally, questions of consolidation or severance are within the trial court's discretion."); Holmes v. State, 63 Wis. 2d 389, 395-96 , 217 N.W.2d 647 (1974)("What is involved is an exercise of trial court discretion."); State v. Brown, 114 Wis. 2d 554, 559 , 338 N.W.2d 859 (Ct. App. 1983)(same).

2016See Haldane v. State, 85 Wis. 2d 182, 188-89 , 270 N.W.2d 75 (1978)("Generally, questions of consolidation or severance are within the trial court's discretion."); Holmes v. State, 63 Wis. 2d 389, 395-96 , 217 N.W.2d 647 (1974)("What is involved is an exercise of trial court discretion."); State v. Brown, 114 Wis. 2d 554, 559 , 338 N.W.2d 859 (Ct. App. 1983)(same).

2016See Haldane v. State, 85 Wis. 2d 182, 188-89 , 270 N.W.2d 75 (1978)(" Generally, questions of consolidation or severance are within the trial court's discretion."); Holmes v. State, 63 Wis. 2d 389, 395-96 , 217 N.W.2d 647 (1974)("What is involved is an exercise of trial court discretion."); State v. Brown, 114 Wis. 2d 554, 559 , 338 N.W.2d 859 (Ct. App. 1983)(same).

2016See Haldane v. State, 85 Wis. 2d 182, 188-89 , 270 N.W.2d 75 (1978)("Generally, questions of consolidation or severance are within the trial court's discretion."); Holmes v. State, 63 Wis. 2d 389, 395-96 , 217 N.W.2d 647 (1974)("What is involved is an exercise of trial court discretion."); State v. Brown, 114 Wis. 2d 554, 559 , 338 N.W.2d 859 (Ct. App. 1983)(same).

2015Id. at 618-19 .

2015Deutsche Bank, to the contrary, suggests that we should apply the discretionary standard, citing to State v. Buelow, 122 Wis. 2d 465, 476 , 363 N.W.2d 255 (Ct. App. 1984), and Christensen v. Economy Fire & Casualty Co., 77 Wis. 2d 50 , 55—56, 252 N.W.2d 81 (1977), for the proposition that the admissibility of business records under the business records exception is a discretionary determination that an appellate court will reverse only where the trial court either abused its discretion or exercised its discretion based upon an erroneous view of the law. ¶ 20.

2015Deutsche Bank, to the contrary, suggests that we should apply the discretionary standard, citing to State v. Buelow, 122 Wis. 2d 465, 476 , 363 N.W.2d 255 (Ct. App. 1984), and Christensen v. Economy Fire & Casualty Co., 77 Wis. 2d 50 , 55—56, 252 N.W.2d 81 (1977), for the proposition that the admissibility of business records under the business records exception is a discretionary determination that an appellate court will reverse only where the trial court either abused its discretion or exercised its discretion based upon an erroneous view of the law. ¶ 20.

2015Deutsche Bank, to the contrary, suggests that we should apply the discretionary standard, citing to State v. Buelow, 122 Wis. 2d 465, 476 , 363 N.W.2d 255 (Ct. App. 1984), and Christensen v. Economy Fire & Casualty Co., 77 Wis. 2d 50 , 55—56, 252 N.W.2d 81 (1977), for the proposition that the admissibility of business records under the business records exception is a discretionary determination that an appellate court will reverse only where the trial court either abused its discretion or exercised its discretion based upon an erroneous view of the law. ¶ 20.

2015Deutsche Bank, to the contrary, suggests that we should apply the discretionary standard, citing to State v. Buelow, 122 Wis. 2d 465, 476 , 363 N.W.2d 255 (Ct. App. 1984), and Christensen v. Economy Fire & Casualty Co., 77 Wis. 2d 50 , 55—56, 252 N.W.2d 81 (1977), for the proposition that the admissibility of business records under the business records exception is a discretionary determination that an appellate court will reverse only where the trial court either abused its discretion or exercised its discretion based upon an erroneous view of the law. ¶ 20.

2015In my opinion the trial court either legally abused its discretion or did not properly exercise its discretion in denying the petition for adoption...." Young v. Alderson, 68 Wis. 2d 64, 76 , 227 N.W.2d 634 (1975) (Day, J., dissenting).

2015In my opinion the trial court either legally abused its discretion or did not properly exercise its discretion in denying the petition for adoption...." Young v. Alderson, 68 Wis. 2d 64, 76 , 227 N.W.2d 634 (1975) (Day, J., dissenting).