Kirk Law Office L.L.C.

County Fair Season… and murder.

Summer in Wisconsin is County Fair season. With seventy-two counties, I imagine every week from July 15 through the end of August includes multiple fairs. Want to find one near you? The Wisconsin Association of Fairs has a listing of events. Summer reminds me of preparing 4-H projects, decorating animal barns and pens, showing and selling animals at the youth auction. If you grew up in 4-H or FFA, you know the routine and excitement of preparing for and participating in a county fair. For many of us, the fair was not about rides, games, demolition derbies, or grandstand shows. The county fair was our chance to showcase a year of learning and working. The season has inspired me to find and share a case that involves a county fair, infidelity, and murder – Eckert v. State, decided by the Wisconsin Supreme Court on April 1, 1902.

The facts are based upon the confession of the accused, Mr. Eckert. On August 25, 1899, his wife, Mrs. Eckert, attended a county fair with her uncle who was visiting. The uncle returned to the Eckert home about 5:00 pm, without Mrs. Eckert. Mr. Eckert went looking for his wife of twenty years. He found her leaving the fair with a Mr. Turner. For some time, Mr. Eckert had suspected “improper relations” between his wife and Mr. Turner, so he followed them. He confronted them in front of a saloon, telling Mr. Turner he was digging his own grave. Mrs. Eckert refused to go home without Mr. Turner so all three walked back to the Eckert residence. The Eckerts began fighting and Mr. Turner left to go downtown with the visiting uncle. Mrs. Eckert made supper. Mr. Eckert initially refused to eat, but eventually did. With full bellies, they reconciled and went for a carriage ride. During the ride, they passed Mr. Turner. Mrs. Eckert asked her husband to apologize to Mr. Turner. Mr. Eckert refused. They returned home about 10:00 pm. Mrs. Eckert sat down to write a letter. When she was done writing, she left the house to mail it. She did not return until 2:00 am. They fought again. During the fight, she grabbed a razor and threatened to cut Mr. Eckert’s throat. When she went to bed, she put the razor under her pillow. Mr. Eckert slept on the couch. Between 4:00 am and 5:00 am, Mr. Eckert tried a final appeal to his wife, asking her to stop seeing Mr. Turner. She said she loved Mr. Turner. Mr. Eckert threatened divorce. Mrs. Eckert said he would never live to get a divorce and pulled the razor from under her pillow. Mr. Eckert ran to the drawer of the washstand, grabbed a revolver and shot is wife in the head twice. Please keep in mind that this is Mr. Eckert’s version of events, which the Courts have adopted as true because no one testified differently.

A jury convicted Mr. Eckert of second-degree murder. Mr. Eckert appealed. One of the arguments on appeal was that the trial court failed to properly instruct the jury about insanity. While the decision from the Supreme Court does not give many details about what happened at trial, it appears that Mr. Eckert pled insanity – that he was so distraught by his wife holding the razor, he had no clue what he was doing. The attorney for the Defendant asked the trial court to instruct the jury, “If the defendant killed his wife in a manner that would be criminal and unlawful if the defendant were sane, the verdict should be, ‘Not guilty, by reason of insanity,’ if the killing was the offspring or product of mental disease in the defendant.” The trial court refused to give that specific instruction, instead telling the jury, “If the defendant at the time of the homicide had sufficient mind to know right from wrong, and to understand the nature and quality of the act he was committing, that then he was sane in the law.”

I am not a criminal law attorney. I do not know if the word “insanity” is even used anymore. I do not know if the standards for “insanity” are even remotely close to what they were in the early 1900’s. I think the judge’s instruction seems easier to understand than the lawyer’s version. The Wisconsin Supreme Court decided that both versions say the same thing, and the Judge’s version was fine. It upheld the conviction.

Is there wisdom to share from this case? I think so. I am reminded to simplify my words and cut back on fancy legal lingo. I am also reminded of a saying my late father used when telling me about his days of dating, “When you go out dating – to a dance, to a movie, to a dinner, you leave with the one you came with.” It was sound advice. He would have told Mrs. Eckert, “Go enjoy the county fair. But if you go to the fair with your uncle, be sure to leave with your uncle when he goes home.” If Mrs. Eckert had done that, who knows?

Has it Really Been Four Years?!

I have been updating my website since my move and noticed that the last time I posted on my blog was in February 2020!? Pre-COVID??! What have I been doing for four-and-a-half years?

A lot.

In 2020 my father became unable to live by himself. I took him in and he lived with me until his death in May, 2024. Somewhere in the process, I shared with a client my frustration about balancing children, a business, and my dad’s needs. My client reminded me, “The days are long, but the years go fast.” How true. How very true. I am still in the midst of wrapping my head around all that has happened in the past few years. I know that my time at work declined as Dad needed more from me. I know that I got to a point where I was refusing to take on new work and my office door would remain locked for days on end. I know that my kids felt left out and left behind because so much of my time and energy focused on my Dad. I also know that having my Dad with me, watching Brewers games or John Wayne movies, are memories that I will never lose. I am grateful for those.

On a lighter note, I am so happy to be living back in my hometown of Lublin, WI. My office in Thorp is getting unpacked and set up. The fact that I am at a desk typing this gives me courage and optimism. I have so many goals for this new chapter of my life. I want to do more gardening, more fishing, more work with community non-profit groups. I want to explore area county roads on my motorcycle. I want to make new friends.

I have business goals too. I want to provide the people and businesses of this area the legal services that you deserve. Gilman, Withee, Owen, Stanley, Boyd, Thorp, and beyond, I am here to help. I suspect my process may be slightly different from other lawyers, so let me give you a preview. I never charge for an initial meeting. In my first meeting with clients, my job is to understand your problem and your goals. I may not have answers that first day, and might have to do some research to develop options for you. When I do have potential plans ready, you get to hear about all of them. I will explain the pros and cons of the options and you will choose how to proceed. How much will it cost? It depends on your choice, but all my work is performed on a flat fee basis. My bill is 100% predictable and I can always explain the reason for the cost. I offer payment plans. I never demand a down payment to start your work. While I am your attorney, we can communicate the way you prefer – in-person meetings, e-mail, phone – it is your choice. Except for carrier pigeons. I tried them once and it got messy.

It was over ten years ago that I started my solo practice and it has been so rewarding. Many of my clients in Superior became friends and vice versa. I hope to replicate the success I had there and continue my mission of providing client-focused services. I look forward to the next years and all the new opportunities I will have here. I promise not to take so long to post again.

Some Wednesday Ramblings…

As February is closing down, I realize that I have been using my new office space for nearly three months now and I still haven’t shared photos! I teased my followers with a post back in November 2019 showing the pre-construction/remodeled space. Better late than never? Let me introduce you to the new Kirk Law Office:

Some of the pictures above still include holiday decorations because it was such a festive season at my office. I had the honor of hosting my Rotary club’s annual holiday party where we wrap presents for an adopted Salvation Army Family:

It turns out my new office is the nearly perfect place to host a party!

Kirk Law Office is now located in the original City Hall for the City of Superior at the intersection of Broadway Street and Hammond Avenue. The building opened in 1890 and is on the National Registry of Historic Buildings! So far, clients’ reactions have been nothing but positive. I have said for the last six years that opening my own firm was partially motivated by a desire to “do law differently.” My space is a true reflection of that desire. Clients have described it as “cozy”, “comfortable”, “fun”. I like to think of it as humble, down to earth, and a place where my clients, colleagues and friends will always feel welcome and never feel intimidated.

When the Hard Work Pays Off.

Six years ago I opened Kirk Law Office not knowing if I’d be able to pay the rent in 60 days. This journey has been both demanding and rewarding. In the next couple weeks I am taking another scary step and moving my office to a new location that better reflects who I am as a lawyer and a person. For the past few months I have been working late nights and weekends cleaning and remodeling the new Kirk Law Office. #KLO v2019

Below are some pictures of what the space looked like when I started. I can’t wait to get moved in and share updated photos. The change has been amazing. I want to thank all of my colleagues, clients, friends and family who have been so patient and understanding during this process. The finish line is in sight and the hard work is going to pay off!

WI Liquor Law Changes Just in time for the Fourth of July!

Yesterday, Govenor Tony Evers signed legislation that grants the public UNLIMITED access to off-sale liquor. Prior law limited sales by Class B (off-sale) to a maximum of four liters per transaction. This is the new law:

2019 WISCONSIN ACT 6 An Act to amend 125.51 (3) (b) of the statutes; relating to: retail sales of intoxicating liquor for consumption off the licensed premises. The people of the state of Wisconsin, represented in senate and assembly, do enact as follows: Section 1. 125.51 (3) (b) of the statutes is amended to read: 125.51 (3) (b) In all municipalities electing by ordinance to come under this paragraph, a retail “Class B” license authorizes the sale of intoxicating liquor to be consumed by the glass only on the premises where sold and also authorizes the sale of intoxicating liquor in the original package or container, in ~~multiples not to exceed 4 liters at any one time, and~~ any quantity, to be consumed off the premises where sold. ~~Wine, however, may be sold for consumption off the premises in the original package or otherwise in any quantity.~~ This paragraph does not apply to a winery that has been issued a “Class B” license. Paragraph (am) applies to all wineries that have been issued a “Class B” license.

4th Of July Fireworks Law Reminder

With the Fourth just a few days away, here is some guidance from the Wisconsin Department of Justice on fireworks rules and regulations.

fireworks-advisory-2014

A few highlights:

“State law allows the sale, possession and use, without a permit, of sparklers not
exceeding 36 inches in length, stationary cones and fountains, toy snakes, smoke
bombs, caps, noisemakers, confetti poppers with less than ¼ grain of explosive mixture,
and novelty devices that spin or move on the ground. Wis. Stat. § 167.10(1). There is
no age restriction on sale, possession or use of these devices and the statute does not
classify them as fireworks.”

That’s right, my three year old can buy these!

“Possessing or using any other fireworks, including, for example, firecrackers, roman
candles, bottle rockets and mortars, in Wisconsin without a valid permit is illegal. Wis.
Stat. § 167.10(3). A commonly used rule of thumb is that a permit is required if the
device explodes or leaves the ground. The sale of these restricted fireworks to a
resident of this state without a valid permit is also illegal. Wis. Stat. § 167.10(2).”

Penalties
“A person who possesses or uses fireworks without a valid permit, or who sells fireworks
to a person who does not have a valid permit, is subject to a forfeiture of up to $1,000
per violation. Wis. Stat. § 167.10(9)(b). Each firework illegally possessed, used or sold
may be a separate violation.
A parent or guardian who allows a minor to possess or use fireworks (not including
those for which no permits are required) is subject to a forfeiture of up to $1,000 per
violation. Wis. Stat. § 167.10(9)(c).
A city, village or town may obtain an injunction prohibiting a person from violating Wis.
Stat. § 167.10(8)(a). Violations of such an injunction are criminal misdemeanors, subject
to up to 9 months in jail and a $10,000 fine. Wis. Stat. § 167.10(9)(a).”

Before you stop at a roadside stand and then hand all those “under the table” goodies over to your teenager, keep in mind the potential fine is $1,000 for them and $1,000 for you! I have seen some of those roadside stands authorized by the local town/village to issue permits so that shoppers can obtain their permit for “fireworks,” buy, and use them legally. The linked document above sets out the permitting requirements in more detail.

Enjoy, and be safe!

Johanna R Kirk

Supreme Court Rules on Mandatory Reporter Testimony

It is common sense that the relationship between a student and his teacher is very different from that between a citizen and the police.

– U.S. Supreme Court, Ohio v. Clark, No. 13–1352 (U.S. Jun. 18, 2015)

In October 2014 I wrote about the case of Ohio v. Clark. On June 18, 2015 the Supreme Court issued its decision determining that statements from minors, made to a mandatory reporter, can be repeated by the mandatory reporter in criminal trials against the accused abuser. The primary issues of the case were whether mandatory reporters are serving as “law enforcement” when interviewing children about suspected abuse and whether the statements made by the children are “testimony” about the alleged abuse. The Court ruled that mandatory reporters are NOT “law enforcement” because their purpose isn’t to uncover and prosecute criminal behavior.

When an individual receives statements designed to be used for evidence or prosecution they are considered “testimony” and cannot be repeated unless the accused has an opportunity to confront the accuser. This is the general constitutional protection under the 6th Amendment. The Court found that in this situation, statements to the teacher about abuse were made in order to protect the child, not to build a case against the abuser. Because the statements weren’t “testimony” and the teacher wasn’t “law enforcement” the defendant did not have a constitutional right to confront (cross examine) the minor children who made the statements.

For more information about the Court’s ruling and reasoning, visit the National School Boards Association summary.

As I said back in October, my biggest concern about the case is whether or not prosecutors are now going to be able to subpoena mandatory reporters and force them to testify about the statements children make to them.

Johanna R. Kirk

New Resources Available for FREE!!

In order to help clients and non-clients understand what to do after someone dies, I’ve created two resources that are available for FREE!

The first is a checklist for practical steps that should be taken after someone dies: After Death – A Checklist

The second is a brief description of Probate and the Probate process: Probate

As always, feel free to call me if you have a question about Probate.

Johanna R Kirk

Buying or Selling A Home? Here are a few tips.

In the past few months I’ve received many calls from people who are either trying to buy or sell a home and have general questions about the process. Many people opt to use a realtor who can help you through the paperwork process. Others choose to try it on their own, venturing into the world of For Sale By Owner. So just what steps are there to a residential sale?

The basic steps and paperwork you will absolutely want to include are:

Real Estate Condition Report disclosing any “defects” in the property which MUST be given to the buyers before they make an offer. It is required by Wisconsin Law!
Offer to Purchase (including any contingencies from the buyers such as financing, selling their current home, inspection, closing date, etc.) Traditionally the buyer generates the offer and seller accepts, creating a binding sale agreement.
After the sale agreement is in place, the buyers and sellers get busy arranging financing, inspection, and making sure all the contingencies are met.
Proof of title. If buyers are financing the purchase with a loan, their bank is likely going to require title insurance. This process involves a title company who checks the history of piece of land for any outstanding owners, rights, liens, etc. Usually if a title company is involved, they handle all the rest of the closing documents.

At the “closing” you will see the following documents:

Settlement statement. This sets out the purchase price, reduction for the current year’s taxes which will be paid by the new owners, costs for title insurance, fees for recording the documents, the tax that sellers have to pay, any mortgage payoff you may have, and details the exact amount of money that the buyers will be paying and the seller will be receiving.
A deed transferring the property and any other documents needed to ensure the title to the property is clean such as a Satisfaction of Mortgage from the bank who holds the sellers’ loan.
Tax reporting. Whether a title company, lawyer, or realtor handles the “closing” there usually is a 1099-S disclosing the sale price to the IRS. You will need to talk to your tax preparer to get advice on reporting the sale for purposes of income tax.

Because realtors, banks and title companies handle so much of the paperwork, there usually is very little for a lawyer to do in the typical home sale, unless they are hired by the realtor, bank or title company. That doesn’t mean you absolutely won’t or don’t need a lawyer. You should always feel free to contact a lawyer if you have concerns about the process, documents, or if issues arise.

If you are interested in more details about the sale process, the State Bar of Wisconsin’s website has a page that explains Buying/Selling Real Estate. The site provides information about each step and the documents in more detail.

Non-Compete Agreements Get a Boost From the WI Supreme Court

On April 30, 2015 the Wisconsin Supreme Court issued a decision that finally clarifies the enforceability of a non-compete agreement signed by an existing employee. It has long been settled that new employees can be required to sign non-compete agreements because the employee is receiving employment in exchange for the promise not to compete during or after employment. What has been unclear was whether an employer can use continued employment as the “consideration” in exchange for the employee’s promise. “Consideration” is a legalese term in contract law. It is the “stuff” exchanged by parties to a contract. For example, if you buy a dog for $300, one party gives $300 as consideration and the other party gives a dog as consideration. A promise to do (or not do) something can be consideration.

In Runzheimer International Ltd. V. Friedlen, 2015 WI 45 (April 30, 2015) the Supreme Court confirmed that continued employment can be the value exchanged for a non-compete. ““We hold that an employer’s forbearance in exercising its right to terminate an at-will employee constitutes lawful consideration for signing a restrictive covenant.” wrote the Court. A non-compete may still be unenforceable if the terms and conditions are unreasonable as to the geography or time after employment that an employee is prohibited from working. It may also be unenforceable if the employer acts in bad faith.

For more information about the ruling, visit the State Bar of Wisconsin’s website which has an article summarizing the Court’s decision. Also coming along in the world of non-compete agreements and restrictive post-employment contracts is proposed legislation that could change how non-competes are enforced after employment. If enacted, the legislation would be favorable to employers who can show a legitimate business interest in the restrictions, that adequate consideration was given to the employee, and that the restrictions are reasonable considering the industry and nature of business. For more information about the pending legislation the State Bar of Wisconsin has an article that summarizes the proposal and it’s possible impact on business owners and employees.

Johanna R. Kirk