New Supreme Court Cases

Listen to this article

The Wisconsin Supreme Court has voted to accept 16 new cases. The Court also acted to deny review in a number of cases. The case numbers, issues, and counties of origin are listed below. The first half of this listing ran in the Oct. 22, 2007 issue.

2006AP1859 Walgreen Co. v. City of Madison

The issue presented in this case is whether two Walgreen Co.-owned properties in Madison were properly valued for tax purposes.

The city assessor used an income approach, which considered locked-in rent rates specified in leases. Walgreen argues that the assessments should have been based on a “fee-simple” method, which depends on several factors, including sales of comparable properties but not contract rents.

The difference is significant. For example, the city assessor calculated the 2003 assessed value of one of the properties at $4,618,000; Walgreen’s expert calculated the value for the same year at $1,790,000.

The city argues that Walgreen’s approach does not reflect the true value of the properties because it ignores the guaranteed rents under the terms of a 20-year contract. There is no “comparable” property because other properties don’t have that feature, according to the city.

Walgreen asks the Supreme Court to review a Court of Appeals’ published decision that affirmed the assessments and the methodology used to make the assessments. From Dane County.

2006AP882-CR State v. Harris

In this case, the Supreme Court has been asked to determine if a mistrial or continuance should have been granted due to, among other things, tardy disclosure by the prosecution regarding possible fingerprint evidence.

Ronell Harris was convicted of possessing cocaine with intent to deliver. His pretrial discovery request sought exculpatory evidence and reports of scientific evidence. On the morning of the trial, the prosecutor indicated no usable fingerprints were lifted from a baggie. The defense counsel took the position that the state’s inability to find usable prints as evidence that scientific testing has been attempted but not disclosed.

The circuit court denied a request for a mistrial — a decision upheld by the court of appeals. The court of appeals concluded that the defendant was not prejudiced by the lack of disclosure, and that the verdict would not have changed as a result of disclosure.

Defense counsel argues that late disclosure destroyed his trial strategy, making it exceedingly difficult to render effective assistance.

The Supreme Court could decide if the failure to disclose the fingerprint information alone or in combination with other errors were so prejudicial to deprive the defendant of effective assistance of counsel. From Sheboygan County.

2006AP1954-CR State v. Davis

This certification asks the court to review the admissibility of statements made in conjunction with a polygraph test and whether statements made in conjunction with a voice stress test may be treated in the same fashion. Certification of another case, (2006AP285-CR, State v. Shawn Harris), involving a similar question, is held in abeyance pending a decision in this case.

Background: Police gave defendant Keith Davis a voice stress test, not a polygraph test. However, the parties’ arguments in circuit court assumed that the law related to polygraph tests should also be applied to voice stress tests, and the circuit court applied the law.

The circuit court found that after conducting the voice stress test, an officer advised Davis that he believed Davis had been untruthful about two questions. Davis was told the voice stress test was over, but he was taken to a second room and gave a statement that he later moved to suppress.

Statements made during a polygraph examination, or during a post-polygraph interview that was closely related to the examination are inadmissible. A multi-factor test helps a court determine if statements are admissible.

The Court of Appeals has asked the Supreme Court to clarify rules or develop a legal framework to help courts determine the admissibility of statements made during or closely related to a polygraph test. From Brown County

2006AP396 Donohoo v. Action Wisconsin, Inc. and Christopher Ott

This case involves a defamation lawsuit and the process to be followed when an appellate court reviews a circuit court’s findings of frivolousness.

Background: In February 2004, Grant E. Storms, a pastor in a Louisiana church and an opponent of gay rights, filed a defamation suit against Action Wisconsin, Inc. and Christopher Ott. Storms accused Action Wisconsin and Ott of posting a press release on its Web site that suggested Storms advocated the murder of gay people.

Attorney James Donohoo, on behalf of Storms, sent a letter to Action Wisconsin President Timothy O’Brien, asking for a retraction and to have the press release, issued by Christopher Ott, taken off the Web site. Donohoo filed the defamation suit after getting no response. Attorneys for Action Wisconsin told Donohoo the lawsuit was frivolous, and that Donohoo could face sanctions for filing a frivolous lawsuit. Action Wisconsin argued that because Storms was a public figure, he would have to show proof of malice and that his reputation was damaged.

The circuit court, which dismissed the defamation suit, said Donohoo failed to present sufficient evidence to meet his burden to prove Wisconsin Action’s press release was false and malicious. That decision was not appealed, but Storms filed a motion for reconsideration, and Action Wisconsin filed a motion seeking costs and attorney fees.

The circuit court denied the motion for reconsideration, but granted the motion seeking costs and attorney fees, which added up to more than $87,000. The Court of Appeals reversed.

A decision by the Supreme Court could clarify Court of Appeals’ standard of review in deciding frivolousness and the appropriate analysis of “actual malice.” Justice Annette Kingsland Ziegler did not participate. From Milwaukee County.

2006AP562-CR State v. Clayborn L. Walker

In this case, the state has asked Supreme Court to review how previous court decisions may apply to cases involving sentences imposed at re-confinement hearings.

More specifically, does the Supreme Court’s decision in State v. Brown create a per se rule that requires circuit courts that did not impose the original bifurcated sentence to consider the original sentencing transcript at a re-confinement hearing? And, would that rule apply retroactively to re-confinement decisions made before the Brown decision was issued?

Background: In May 2003, Clayborn L. Walker pled guilty to being party to armed robbery with use of force. He was sentenced to two years in prison, followed by four years of extended supervision. He was released on extended supervision in late 2004, but was eventually arrested for violating the rules of his supervision and absconding. He was sentenced to two years in prison. Walker appealed, arguing there was nothing on the record to indicate that the re-confinement court took into account factors weighed at the original sentencing.

A decision by the Supreme Court could clarify case law on sentences imposed at re-confinement hearings. From Milwaukee County.

2006AP964 Racine Co. v. Int’l A
ssoc. of Machinists and Aerospace Workers

This case involves the question of whether Racine County violated the terms of a collective bargaining agreement between it and the International Association of Machinists and Aerospace Workers.

In the fall of 2003, Donald LaFave and Judith Berndt, family court social workers/ case managers, were told that they would be laid off if they chose not to exercise bumping rights under a labor agreement. Another social worker/case manager, was informed if she didn’t accept a reduction to part-time status that she would be laid off.

The county’s family court commissioner and director of family court counseling services, Kevin Van Kampen, advised several workers, including LaFave and Berndt, that the county wanted to continue to provide statutorily required counseling services with them working as independent contractors. LaFave and Berndt entered such contracts. The union filed a grievance, contending the arrangement violated a collective bargaining agreement.

An arbitrator sustained the grievance — a decision reversed by the circuit court, but upheld by the court of appeals.

The county argues the arbitrator exceeded her powers; the union says the arbitrator’s award simply prohibits the county from labeling employees as independent contractors to evade terms of a labor agreement.

A decision by the Supreme Court could clarify the interplay between collective bargaining agreements and statutes, and if this case is distinguishable from previous cases. From Racine County.

2006AP939 Sustache v. American Family Mutual Insurance Co.

This case involves the “four-corners rule,” which with few exceptions, confines an insurer’s duty to defend to what’s spelled out in the policy.

Background: James Sustache, a teenager, was killed when he was punched by Jeffrey Mathews during an altercation at a party. James’ parents and his estate sued Jeffrey and his insurer, American Family.

The amended complaint alleged that Jeffrey had committed intentional battery, and that his actions were wanton and malicious, warranting an award for punitive damages. Jeffrey said he was exercising his right of self-defense when he delivered the fatal blow to James. Citing the four-corners rule, American Family moved for summary judgment, arguing it had no duty to defend Jeffrey because he had acted intentionally.

The circuit court granted American Family’s motion, concluding that it was bound by a previous decision — Doyle v. Engelke. Mathews appealed, and the court of appeals certified the case. The Supreme Court refused certification on April 17, 2007, but now has agreed to review it upon Mathews’ appeal.

A decision by the Supreme Court may help sort out a possible conflict in Doyle and other decisions by the court of appeals and this Court. Justice Annette Kingsland Ziegler did not participate. From Kenosha County.

2006AP1094, 2006AP1956 Hefty v. Strickhouser

In this case, which stems from a dispute between a farmer and an animal nutrition consultant, the court is asked to review a judge’s authority to issue a scheduling order that deviates from standard deadlines in Wis. Stat. sec. 802.08(2).

Jeannie Hefty, doing business as Heft-Kat Farm, hired Daniel R. Strickhouser as a dairy cow nutritionist. For a time, milk production at the farm increased, but Hefty sued Strickhouser and ADM Alliance Nutrition, Inc. after milk production dropped and cattle began exhibiting signs of illness.

The defendants moved for summary judgment, and the circuit court issued a scheduling order with a 20-day deadline for Hefty to respond. Hefty responded five days late, and the court granted summary judgment. Hefty appealed, and the court of appeals reversed, relying heavily on a prior Court of Appeals’ decision.

The Court of Appeals said it was unconvinced the circuit court judge had sufficient reason to approve a shortening of the time limit in this particular case.

Strickhouser asks the Supreme Court to determine if the Court of Appeals exceeded its authority and to what extent circuit courts have inherent authority to control their dockets. From Walworth County.

2006AP2554 Town of Madison v. County of Dane

In this case, Dane County is asking the Supreme Court to review if it is required to pay the Town of Madison half the town’s cost in constructing a bridge under Wis. Stat. sec. 81.38.

On June 10, 2004, the town petitioned the county for aid in constructing a bridge that would cross over a railway corridor and connect two previously unconnected portions of a frontage road. The county denied the town’s petition on Sept. 9, 2004, concluding the town’s petition did not qualify for aid. The town filed a notice of claim with the county and began construction on the bridge in January 2005. The town filed suit, challenging the county’s denial of its petition. The town argued in a motion for summary judgment that it was entitled to aid because the bridge was constructed “on a highway maintainable by the town,” as required by Wis. Stat. sec. 81.38 (1). The circuit court agreed with the town and granted summary judgment. The Court of Appeals affirmed.

The County argued the bridge was not constructed “on a highway maintainable by the town,” and “because the bridge was not on a section of pre-existing highway.

A decision by the Supreme Court could help clarify the law statewide on an issue that is likely to recur. From Dane County.