Thank you Duluth Sign for a job well-done!
New Signage on Tower Avenue in Superior, WI
WI Supreme Court Takes On Two Shitty Cases.
It’s a crass headline, but it isn’t every day that I can use one like it! The Wisconsin Supreme Court screens which cases it will review each year. Two cases involving manure and waste products will be coming before the Court for review.
You may remember a past posting of mine about the difference between bat guano and cow manure. In Wilson Mutual Ins. Co. v. Falk, a court of appeals ruled that a farmer who spread cow manure on field and polluted local water supplies was entitled to insurance coverage because the manure was not a “pollutant” which would have prevented coverage. Yes, the cow manure case is up for review by the Supreme Court.
The second case, Priesler v. Kuettel’s Septic Service, L.L.C. involves a farm family that also operated a septic business. The septic business, at the request of the Priesler family, applied human septage (waste) to the Priesler’s farm property. As in the other case, the water supply was contaminated and an unknown number of the Prisler’s cows got sick or died. Preislers sued Kuettels and the Kuettels turned to their insurance company to handle the suit. The insurance company, relying on the ever-growing area of court opinions about shit, argued they had no obligation to cover the damages or defend the Kuettels because septage is a “pollutant” under their policy. The local trial court agreed with the insurance company and ruled that septage is a “pollutant.” The Court of Appeals agreed finding that septage is clearly a “pollutant.”
In light of the conflicting opinion in the cow manure case, the Supreme Court has decided to take on both cases to hopefully bring some resolution to this issue. Each case is in the briefing stage right now, which means the parties get a chance to put their arguments on paper for the Court Justices to review. Hearings have not been scheduled. I will keep you posted. In the meantime, if you’d like to follow the cases, a link to the Wisconsin Court System records are above. From those links you can learn about the parties, upcoming deadlines, and if you click on the “Case History” button on the right-hand side, you can even read the submitted briefs.
Enjoy!
Johanna R Kirk; Kirk Law Office, LLC
Speaking To Paraprofessionals At CESA 12
On Friday May 16, 2014 I presented at the CESA 12 9th Annual Paraprofessional Conference. I had the distinguished honor to be the keynote speaker on Friday night, kicking off the conference. For those of you who don’t know, CESA 12 is nonprofit governmental agency that assists school districts in meeting the needs of their communities. There CESA system operates statewide and partners with school districts to offer training, resources, and guidance on many topics facing school districts.
And for further clarification, “paraprofessionals” are individuals who work within the special education system providing services and supports to special education students. They are sometimes called aides, assistants, para’s, and they are the workhorses of special ed. Physical therapists, occupational therapists, speech therapists, classroom assistants, one-to-one aides are just a few examples of the jobs para’s serve.
My session last Friday was an interactive and fun presentation that taught para’s about the legal aspects of what they do. The special education system is highly regulated and requires the use of timelines, procedures, and documentation. I discussed the various roles para’s may serve in evaluation, planning and implementation of special education plans. I also shared information about the use of seclusion and restraint, confidentiality of student information, implications of harassment and bullying.
It was a very fun evening for me with a group of enthusiastic learners. They had great questions and we had wonderful conversations about many topics and issues. Thank you, CESA 12 for the opportunity to present!
Johanna R. Kirk; Kirk Law Office, L.L.C.
Coming to the Veterans’ Expo on May 13, 2014
On May 13, 2014 I will be attending the UW-Superior Veterans Expo. For a few years now, I have been accredited with the Department of Veteran Affairs to represent vets through the disability and other benefit application and review process. Accreditation required training specific to the Veterans Benefit system and in order to maintain my status, I am required to continue training every three years on veterans systems. I became involved through an effort from the American Bar Association’s Young Lawyers Division – Project Salute. The initiative sought to enlist attorneys to volunteer their time helping veterans gain benefits they deserve.
At the Veterans Expo I will be sharing information about Project Salute, the process for obtaining veterans benefits, and other programs offered by the Department of Veteran Affairs and American Bar Association to help vets get cheap (or free) legal advice on many areas of law. There are countless non-profit organizations working together to help veterans with legal issues such as benefits, foreclosures, employment issues, divorces and so much more.
Hope to see you at the Expo!
Johanna R Kirk
How To Wednesdays…NonCompete Agreements With Employees
I’ve helped a lot of employers draft and implement non-compete agreements with their employees. Wisconsin has strict requirements about how you can restrict an employee both during and after employment. The goal of a non-compete is to protect your business’ secrets, customers, and geographic area of sales. Non-competes, like any contract must be supported by “consideration.” The employer must give something to the employee in exchange for the employee promising not to divulge secrets or compete against the business during or after employment. Historically, employment or continued employment could be the consideration from the employer. “If you want to keep working here, you will need to sign a non-compete.” This rule is going to be reviewed by the Wisconsin Supreme Court.
In Runzheimer International Ltd. v. Friedlen, 2013AP1392 (April 15, 2014), the Wisconsin Supreme Court will decide whether an existing, at-will, employee can be required to sign a non-compete as a condition for keeping their job. I’ll keep you informed as the case moves ahead.
In the meantime, if you have considered non-compete and confidentiality agreements with your employees, call me to learn about the requirements and enforceability of the documents. I can help navigate you through the different areas that may need protection (information, processes, sales, customer lists, etc.) and assist with drafting documents which will be enforceable if an employee leaves you and tries to break the agreement. If you have confidentiality or non-compete agreements in place, when were they last reviewed by an attorney?
Johanna R Kirk
How To Wednesday… Learn More About Superior Events
At the Superior Sunrise Centennial Rotary Club’s meeting yesterday, I learned about a new opportunity to discover and promote Superior, Wisconsin events and activities. Explore Superior is a new offering thanks to a forward-thinking group from the Superior Leadership program. The page allows you to register and post your Superior events, photos, and thoughts as well as search for others.
The site has a “blog” format, but don’t let that intimidate you. There are helpful directions on the page that can be printed off, taking you through every step from registration to posting and categorizing your posts. The goal of the site is to be a gathering place for information from all Superior businesses, non-profits, educational institutions, and people. It has a great interactive format so you can find things to do today, or next month!
Thank you to the group who brainstormed this idea and has seen it through development and launching. I look forward to using the site often!
Johanna R Kirk
Office Closed on 4/10 and 4/11, 2014.
On April 11, 2014 I will be presenting at the 2014 Wisconsin Bar Leaders Conference in Madison Wisconsin. I am also chair of the event which is sponsored by the Wisconsin Bar Association. This means Kirk Law Office will be closing at noon on 4/10/14 and will be closed all day on 4/11/14. Sorry for any inconvenience this may cause and thank you for your understanding.
Johanna R Kirk
How To Wednesday…Begin To Plan For Your End.
My husband just celebrated a birthday this week. We are still young people, with children, a home, cars, life insurance policies, modest investments and debt. Personal disclosure coming – we do not have an estate plan. It’s just something we keep saying we need to do, but never actually get around to.
Most of my estate planning clients fit into a fairly predictable stereotype. They are not thirty-something couples with minor children. I am not surprised by this. Many people in our age bracket are simply too busy living to worry about or plan for dying. Many don’t know where to even start with the planning process. Many think it will cost too much money to get their things in order. My “How To” for this week is going to be the first steps you need to take to make an estate plan.
Step One: Take inventory. Of everything. Bank account and loan balances, values of real estate and vehicles. Don’t forget the “toys” a/k/a snowmobiles, atv’s, motorcycles, and your beloved puck collection that you started at age four. As for the household goods (dishes, furniture, clothing, kids’ toys) what would it be worth if you sold it all in a garage sale? Create your very own net-worth statement that includes account numbers and names of the banks or investment companies you have assets or debts with.
Step Two: Think, very seriously, about what you would want to happen with all that stuff if you died. Are there particular family heirlooms that you want to pass on to children, nieces or nephews? Would you like money from your life insurance policy paid to a designated charity or to your kids’ college funds? Speaking of kids, if they should need a guardian appointed by a court, who do you want that to be? How about an alternate? If you are married, this should be a conversation. Keep in mind that you and your spouse do not need to agree about everything. Your plan can be different from your spouse’s plan.
Step Three: Do some of the work yourself. Many of your assets, such as bank accounts, life insurance policies, car titles, can be shared or designated to a specific beneficiary. This is what a joint checking account does. It creates two owners and when one dies, everything goes to the survivor. If you are reluctant to share assets now, most financial institutions offer pay on death (POD) beneficiary designations. You can name who gets your account when you die.
Step Four: Talk to a lawyer. Now that you have a comprehensive plan in mind, it is worth the time to talk to someone who might be able to explain what Wills, Trusts, Powers of Attorney, and Health Care Powers of Attorney are, what they do, and how they affect or assist the other planning you’ve already taken care of. There are concepts you need to understand, such as what property is part of your “taxable estate” versus your “probated estate”. You need to understand the implications of dying with a will versus without one. You deserve to understand the power that you might be signing over with a Power of Attorney. You should have a grasp on any tax implications that may come from your death. The lawyer is going to suggest various documents and options to you. If you don’t understand completely what the lawyer is suggesting, ask questions until you do understand. After all, this is your plan, not your lawyer’s. If you are worried about the cost of talking to a lawyer, call me. I do not charge for initial consultations.
Johanna R Kirk
Kirk Law Office, L.L.C. 1418 Tower Ave. Suite #6; Superior, WI 54880 (715)-718-2424
How To Wednesday… Creating and LLC
Please note that I actually wrote this on Wednesday, just didn’t get it published until today!
I help a lot of people set up an LLC with the State of Wisconsin. The process isn’t very complicated and I sometimes do it online, with my clients present. Don’t think that this post is going to give you everything you need to know about setting up your LLC. Choosing to do business as an LLC as opposed to a partnership, corporation, non-profit, or sole proprietorship has implications on your taxes and your legal exposure if your business gets into trouble. Creating an LLC has implications on your estate if you should die. It becomes an asset that potentially is subject to division if you (or your partner) get divorced. I advise talking to a lawyer who can explain the different entity choices and what long-term effects the different choices have for you.
That being said, here we go, off to the State of Wisconsin Department of Financial Institutions. Your first step for setting up your LLC is to choose a name for it. You cannot pick a name that someone else is already using. How do you know if your choice is available?
Go to www.dfi.gov and click on “I want to search…” a menu will drop down, choose “Corporate Records”
You will get a page with a search box. Type in the name you want to use. Any similar name will show up in the results.
Search results for “Kirk Law” were:
If the name you would like to use is not listed, you are good to go because it is available. Wisconsin requires that you will have to use “L.L.C./Limited Liability Company/LLC” or some other variation in your name. This is a requirement because it lets the world know what type of entity you are choosing.
Go back to the main DFI page. Click on, “I want to file…” in the dropdown menu choose “Create a Corporation/LLC”
The website will take you through several questions, some seem very repetitive. Here are a few keywords you will need to know:
“Member” is an owner of the LLC, like a stockholder in a corporation. An LLC can have one or many members. Members can be people or other legal entities like another company.
“Manager” is the person or people who get to make decisions about how the LLC operates. I can be a member, or not a member. You will have a question asking whether the LLC will be “member-managed.” If you want to restrict decision-making only to owners you should choose to be member-managed.
“Registered Agent” is the person who is the official contact for the LLC. If you get sued, this person is the one who must be served with paperwork.
“Organizer” is the person who is creating the LLC. It may be a member, or could be someone else, like your attorney or accountant.
“Article of Organization” is the document that creates your LLC. It’s like your very own constitution, or charter.
“Operating Agreement” is the rule-book for how your LLC operates. It can determine who gets to be a member, how profits are paid, memorializes what everyone’s initial contribution to the LLC was, designates what happens if a member dies or wants to get out of the LLC. There are some standardized forms available over the internet, but if you have a spouse or a partner, you should review your operating agreement with a lawyer. I’m not trying to hard sell you here. I just think that getting a lawyer’s perspective matters. What if your LLC co-member gets divorced? What if you become seriously ill or are injured in a car accident and can’t do your fair-share for the LLC anymore? There are lots of contingencies you can plan ahead for to avoid trouble down the road.
There is a filing fee of $130 for registering your LLC. You will have to pay it online. Alternatively, you can have a lawyer draft up the paperwork and send it to the DFI with a check. Once you “file” the registration, you will be notified via e-mail that it has been received. That does not mean it has been “filed.” Once it is “filed” you will receive a notice providing you with a DFI Entity Number.
And that, folks, is how an L.L.C. is created. It is not magical, it’s an online form-filling and payment process. The real “magic” of what I do is sit down with people and explain how creating an LLC or any business entity establishes a relationship with co-owners, impacts your relationship with your spouse, and affects your annual income tax exposure, medical assistance eligibility, and so much more. Contact me if you have questions.
Johanna R. Kirk
Kirk Law Office, L.L.C. – 1418 Tower Ave. Suite #6; Superior, WI 54880 (715)-718-2424
How To Wednesday: Informal Background Check
WARNING:
Before I launch into the “How To” portion of today’s post, let me extend a few words of caution. This post is going to teach you how to check someone’s history with the Wisconsin Court System. It is an informal search of public court records. If you are an employer who is obligated to background check employees, this is NOT a background check process that complies with laws or insurance company protocols. Further, if you are an employer who is “curious” about an employee or applicant there are laws that govern how you can and cannot use public record information in making a hiring or employment decision. To be honest, the best use of this tool is for checking up on an annoying in-law that will give you gossip for the next family get-together. Now that we’re clear, here is How To Do an Informal Background Check.
The Wisconsin Court System keeps an online website that reports court activity which can be searched by name, case number, or county. Most people want to know about local, Circuit, cases (small claims suits, criminal charges, personal injury cases, probates, etc.) If you ever hear a lawyer or court official use the term “C-Cap” they are talking about this website – Circuit Court Access Program.
STEP 1: Go to the Wisconsin Court System website. Click on “Case Search” and pick “Circuit Court” from the drop down menu.
STEP 2: The next page is a warning (like mine above) that cautions you about how you use any information you may find on the site. If it is your first time using the site, read it. After that, ignore it. It seldom changes. Click on “I Agree.”
STEP 3: Enter that information about your in-law! The more information you provide, the more accurate your results will be.
Let me define the Case Number category. Each time a case, whether criminal, civil, small claims, or otherwise is filed it receives a case number. If you are involved in some kind of court proceeding the case number is usually is found on the top right portion of your court documents. The numbering system has some logic to it. The first two numbers are the year it was filed. The letters in the middle indicate what kind of case it is. The final two numbers are the number of that type of case filed. For example:
“12 PR 36” was the thirty-sixth probate case filed in the year 2012 in that county.
“14 FA 0003” was the third family or divorce action filed in 2014.
Each county maintains separate cases and numbers. 14 FA 0003 in Douglas County is NOT the same case as Ashland County 14 FA 0003.
So as a trial, let’s look at one of my in-laws. Just kidding. We’ll check on me instead. I entered my last and first name. No restrictions on a particular county and hit “Search”
RESULT: No result?!
This could mean I entered information incorrectly, or that I have a perfectly clean court history! Because this doesn’t make for a very fun ending to the post, let’s try someone who I know won’t disown me for using his name – my dad.
RESULT: You get a list of every court case he’s been involved in:
From that page you can click on any of the individual cases to learn more about the other party or parties, attorneys and outcome of the case. If a fine or judgment was entered against someone you can even check to see if the amount owed has been paid.
Have fun stalking those in-laws, or exes. As I said, just be cautious about using any information you find about employees. If you want the dirt on your staff, there are procedures to do that properly so they are given notice and consent to an official background check.
Johanna R. Kirk
Kirk Law Office, L.L.C. 1418 Tower Avenue Suite #6; Superior, WI 54880 715-718-2424