New Supreme Court Cases

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The Wisconsin Supreme Court has voted to grant review in five cases. The case numbers, issues (provided by the Office of the Clerk of Supreme Court), and counties of origin are listed below. To read the full records, go to the Supreme Court Clerk’s Office, Suite 215, Tenney Building, 110 E. Main St., Madison.

2005AP3093 Manning v. Necedah Area School District

This case, which involves a bus driver who was accused of fondling students, addresses questions about the duty of school officials to report suspected sexual contact.

Background: John Lynch was employed by the District as a bus driver from 1992 until 1998. In February 1998, a Juneau County Sheriff’s deputy told a school psychologist for the District that his stepdaughter had told him that Lynch had touched the private parts of two elementary school girls who rode Lynch’s bus. The psychologist and deputy reported these allegations to the District elementary principal, who directed the psychologist to investigate the allegations.

In March 1998, the psychologist provided a written report about her investigation to the principal and the District administrator. She also reported the allegations of abuse to the Juneau County Department of Human Services. The department placed a surveillance camera on Lynch’s bus the following day and arrested him a few days later. Lynch was charged in Juneau County Circuit Court with 18 counts of illicit sexual conduct. He stopped driving for the District and he died before his criminal trial took place.

The circuit court concluded the district was not vicariously liable because Lynch was not acting within the scope of employment and that the district was immune from liability.

The Court of Appeals affirmed, concluding that the plaintiffs failed to show the Necedah Area School District breached a ministerial duty under § 48.981, Stats., to report suspected abuse. The Court of Appeals also concluded that the facts of record did not support a finding of a known and present danger.

The Supreme Court has been asked to determine whether the legislature, in enacting Wis. Stat. § 893.80(4), intended to limit immunity to matters involving governmental legislation or judicial discretion. More specifically in this case, if immunity is available given the circumstances. From Adams County.

2006AP424 Sanders v. Estate of Sanders

This case, which is before the court for a second time, could help clarify when an order in a probate case can be considered final for the purpose of appeal. The Court of Appeals dismissed Diana Sanders’ 2002 appeal as premature; it dismissed a 2006 appeal as belated.

Background: In 2000, following a will contest, David Sanders’ will was admitted to probate, giving his assets to his brothers and nephews and expressly excluding his wife, Diana. Diana and the estate disputed the value of property and the characterization of the assets as marital property.

The parties eventually reached some agreement, but some disputes remained about how much Diana would have to pay for farm property, based on different outside offers. On June 12, 2002, the trial court granted the guardian ad litem’s motion for relief from the settlement agreement and ordered the parties to pursue an $800,000 offer that was contingent on rezoning. Diana, who would be required to pay half the value, sought to purchase the property based on one half of a $375,000 offer.

Diana appealed, and in a Feb. 4, 2003 summary order, the Court of Appeals dismissed the first appeal, concluding the previous court orders were not final.

In 2006, the Supreme Court granted Diana’s first petition for review of an order dismissing for the second time her appeal in the in the probate of her husband’s estate.

This court summarily vacated the 2006 dismissal order and remanded to the Court of Appeals for consideration in light of two other cases. On remand, the Court of Appeals again concluded her appeal was belated and dismissed.

In this petition for review Diana raises one issue: Whether a Feb. 10, 2006 probate order was final for purpose of appeal. From Waupaca County.

2006AP1239-CR State v. Her

This criminal case examines whether the state breached a plea agreement by acknowledging at a sentencing hearing that its sentencing recommendation pursuant to the plea agreement had been based on a factual error.

Background: On Oct. 25, 2000, Her and an associate, Tong Xiong, were stopped by a Sheboygan police officer. Xiong and Her sped off after the officer determined that the car they were riding in had been stolen in Michigan. They subsequently broke into a rural home, pointed a deer rifle at the homeowner and bound the homeowner’s hands and feet before stealing his vehicle.

Approximately two years later, Xiong was arrested and ultimately pled guilty to one count of false imprisonment while armed and masked and one count of carjacking while masked. The circuit court sentenced Xiong to 10 years of initial confinement and five years of extended supervision on false imprisonment count and 15 years of initial confinement and 10 years of extended supervison the carjacking count — to be served concurrently.

In 2004, police were finally able to track down and arrest Her, who was initially charged with the same offenses as Xiong plus a third count of intimidating a witness.

Operating under a mistaken recollection of the sentence Xiong received, the district attorney offered Her a plea agreement including 10 years of initial confinement and five years extended supervision — five years fewer initial confinement. Her accepted the agreement and entered the appropriate pleas. The district attorney realized his mistake prior to sentencing and told Her’s counsel that while he would stick with the agreed-upon sentencing recommendation, but would acknowledge his mistake at the sentencing hearing if questioned by the court. The court did question the district attorney and he explained his mistake in making the plea offer, but still made the agreed-upon recommendation.

Her filed a motion alleging that the state had breached its plea agreement. Her also claims ineffective assistance of counsel for failing to object to the alleged breach of plea agreement.

The Court of Appeals concluded that the district attorney’s honest answer to the court’s inquiry about the disparity in sentences did not constitute a breach of the plea agreement.

A decision by the Supreme Court could clarify the competing interests created by a plea agreement, which is subsequently undermined by truthful comments by a prosecutor. From Sheboygan County.

2006AP1566 Estate of Dale Otto v. Physicians Ins. Co.

This medical malpractice case involving two doctors, a medical clinic and their insurers, examines whether a default judgment was properly entered against an insurance company that allegedly failed to file a timely answer.

Background: In 2003, the estate of Dale Otto and his surviv
ing family members alleged that two physicians failed to diagnose that Mr. Otto’s gastroesophageal reflux disease had been replaced by metastic esophageal cancer. The suit named the two doctors, the clinic and two fictitious insurers.

The names of the fictitious insurers were replaced in an amended complaint with two real insurance companies, including Physi-cians Insurance Co. (PIC). The doctors and the clinic filed an answer in which they denied liability, but PIC was not listed in the text of the answer nor the signature block.

The attorney representing the doctors and clinic, who also had done work on behalf of PIC in the past, said his office had forgotten to include PIC on the list of answering defendants. The estate contends more than a dozen additional filings also failed to include PIC, however. After several months of further proceedings in the case and PIC’s motion for leave to file an amended answer that included PIC, the estate moved for a default judgment against PIC, which the circuit court granted. The estate also dismissed its claims against the doctors and clinic. The circuit court found PIC was liable to the plaintiffs in the total amount of $801,760, which was reduced slightly on appeal.

The Court of Appeals concluded that because PIC had failed to show excusable neglect for its untimely answer, the circuit court had properly entered a default judgment against PIC regardless of the timely answer by PIC’s insureds.

Since an insurer’s liability derives from the liability of its insured, PIC asserts that it would be absurd to adjudge the provider defendants’ insurer liable for their negligence when the provider defendants themselves could have litigated the matter to completion and obtained a finding of no negligence and a dismissal of the plaintiff’s complaint. PIC argues that the result of its default should at most be a finding that it had conceded providing coverage to the doctors and clinic.

The court is expected to address whether an insurer’s default should result in a judgment against it for the full amount of the plaintiff’s claimed damages where the insurer’s insureds have filed a timely answer and denied liability. From Dunn County.

2006AP1379-CR State v. Bruce Duncan MacArthur

This certification involves the interpretation of the statutes of limitation and whether it applies to crimes committed before the enactment of Wis. Stat. ch. 948.

Background: In 2006, the state charged an 84-year-old former hospital chaplin with several counts of sexual assault between March 1965 and June 1972 of three female minors who had been hospital patients. The criminal complaint states that MacArthur moved from Wisconsin in 1970. He was arrested in Missouri and waived extradition. His motion to dismiss was based upon the statute of limitations was denied. The District IV Court of Appeals granted MacArthur’s petition for leave to appeal and the state’s petition for cross-appeal.

The state claims that the six-year statute of limitations was in effect at the time of the offenses. MacArthur claims the applicable statute was the one in effect in 2006, when the charges were brought. From Dodge County.