Supreme Court New Cases

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The Wisconsin Supreme Court has voted to grant review in nine 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.

2008AP446-CR State v. Michael L. Popke

In this case, the state’s petition asks the Supreme Court to review if a brief swerve of three-quarters of a motor vehicle across the center line of the road provides probable cause to believe that the driver has violated Wis. Stat. § 346.05, which requires all motorists to “drive on the right half of the roadway.” If such a temporary crossing constitutes “driving” on the wrong side of the road, then the police may stop a motorist who has engaged in such conduct for the traffic offense, which in turn might lead the police to discover that the driver is intoxicated, even though the traffic offense, by itself, might not allow a stop for drunk driving. Alternatively, the state also asks if such a left-of-center violation followed by two instances of weaving within a single traffic lane within a distance of two blocks give a police officer reasonable suspicion to make an investigatory stop for possible drunk driving?

The state argues the issue in this case is not whether Popke would in fact have been convicted of a violation of Wis. Stat. § 346.05, but whether the police had probable cause to believe that a traffic law had been violated. The state contends that Popke’s crossing of the center of the roadway, even if for only a short time, clearly provided such probable cause.

Popke asserts that under the state’s view of the statute, there would be a violation of the statute and probable cause to make a traffic stop even if only one tread of an individual’s tire crossed the center line of the road. He asserts that under this interpretation, thousands of vehicles could be pulled over every day.

A decision by the Supreme Court could clarify if a momentary crossing of the center line creates probable cause to believe that a motorist has failed to drive on the right side of the roadway, as required by Wis. Stat. § 346.05. Alternatively, the court may provide further guidance as to what driving conduct a police officer must observe in order to create a reasonable suspicion of an OWI violation. From Waupaca County.

2007AP1799 Osborn v. Dennison

This case involves a dispute over a failed residential real estate transaction and whether the sellers elected the remedy of liquidated damages, preventing the sellers from obtaining their actual damages.

Summary judgment motions were filed by both sides. The circuit court granted the partial summary judgment motion filed by Dennison and ruled that the Osborns were limited to collecting the $2,000 in earnest money as liquidated damages. The circuit court believed that the Osborns had irrevocably elected the remedy of liquidated damages when they had refused Dennison’s request in May 2005 for the return of his earnest money. The Court of Appeals affirmed.

The Osborns ask the Supreme Court to review if under these circumstances they “retained” the earnest money and thereby irrevocably elected the remedy of liquidated damages and forfeited their right to actual damages. From Kenosha County.

2008AP519 Baldwin-Woodville Sch. v. West Central Ed.

In this case involving a dispute over a teacher’s pay rate, the Supreme Court has been asked to review application of the “perverse misconstruction” doctrine and if courts may vacate arbitration awards where parties gave the arbitrator express authority to decide procedure and timeliness.

The School District moved to vacate the arbitrator’s award, arguing that the award exceeded the arbitrator’s powers and authority and manifestly disregarded the law in violation of § 788.10(1)(d). The circuit court denied the district’s motion, concluding that the arbitrator’s decision was rational and supported by the evidence.

The district appealed, and the Court of Appeals reversed and remanded, concluding the grievance was not timely.

The association’ says even if the Court of Appeals believed the arbitrator made the wrong determination, Wisconsin law is clear that a court may not vacate an arbitration award for errors of law or fact.

A decision by the Supreme Court could clarify issues regarding the timeliness of grievances and the scope of appellate review of an arbitrator’s decision. From St. Croix County.

2007AP2382-CR State v. McClaren

In this criminal case, the state has asked the Supreme Court to review if a trial court may order a defendant who claims self-defense to make pretrial disclosure of possible evidence of the victim’s prior violent acts.

The Court of Appeals concluded that the trial court’s general superintending authority cannot be read so expansively as to allow a court to require pretrial disclosure that is not authorized under the criminal discovery statute. The Court of Appeals also stated it did not have authority to promulgate rules of criminal practice or procedure.

The state contends that if disclosure is delayed until the middle of trial, the circuit court will be obligated to grant a continuance so the opposing party may investigate and prepare rebuttal. The state also contends that disclosure would be consistent with the federal rule of evidence, which requires the prosecution to provide pretrial notice of “other acts” evidence committed by the defendant.

A decision by the Supreme Court may clarify trial court authority regarding disclosure rules in this type of case. From Jefferson County.

2007AP1754 Hocking v. City of Dodgeville

This certification asks the Supreme Court to consider a possible conflict between “reasonable use” rules regarding liability for surface water runoff and a previous decision that there may be liability under certain circumstances for failing to abate a nuisance.

Specifically, the District IV Court of Appeals certified the following issue: Can an uphill landowner who has done nothing to affect surface water flow be held liable to the owner’s downhill neighbor for damages sustained as a result of the water flow?

A decision by the Supreme Court may help resolve a possible conflict between the “reasonable use” rule regarding liability for surface water runoff adopted in State v. Deetz, 66 Wis. 2d 1, 224 N.W.2d 407 (1974), and the court’s statement in Milwaukee Metropolitan Sewerage Dist. V. City of Milwaukee, 2005 WI 8, 277 Wis. 2d 635, 691 N.W.2d 658 (MMSD), that there can be liability under certain circumstances for negligently failing to abate a nuisance. From Iowa County.

2007AP2307-CR State v. Michael Scott Long

Michael Scott Long, the defendant in this criminal case, is serving life in prison without parole as a result of a penalty enhancer under the provisions of Wisconsin’s “three-strikes law,” Wis. Stat. § 939.62(2m)(b)1 and (c).

Long asks the Supreme Court to review whether the facts support his convictions of false imprisonment and second-degree sexual assault as a persistent repeater under the three-strikes law.

Long claimed a Minnesota burglary conviction w
ould not have constituted a serious felony in Wisconsin because the crime he committed after making an illegal entry would have constituted fourth-degree sexual assault in Wisconsin, a misdemeanor. Long also argues the “force” used in the case now on appeal is not the type of force envisioned by the Legislature as second-degree sexual assault.

Long does not challenge the facts underlying his offenses; he challenges the legal significance of those facts. Until the three strikes legislation, the type of conduct charged here would not have resulted in life imprisonment. The stakes are “so great, the need for accurate decision making is heightened,” Long contends. From St. Croix County.

2007AP1992 Donaubauer v. The Farmers Auto Ins. Assoc.

This dispute involves the interpretation of provisions of a homeowners insurance policy regarding replacement value of a home destroyed by fire.

Farmers contends that Donaubauer’s attorney agreed to follow an appraisal process, similar to an arbitration process, to determine the replacement value of the home as outlined in the policy.

The circuit court found there had been a written agreement to resolve the case through the appraisal process and declined to set aside the appraisal process as a way to determine replacement value. The circuit court granted summary judgment to Farmers and dismissed Donaubauer’s breach of contract and bad faith claims. The Court of Appeals affirmed, concluding the appraisal process was designed as an alternative dispute resolution process and that grounds for vacating an award are extremely narrow.

Donaubauer has asked the Supreme Court to review if the standards for challenging appraisals and arbitrations precisely mirror one another and to provide guidance on the method to challenge an appraisal. He also asks if it was appropriate for him to be forced to participate in a binding appraisal process, even though nothing in his insurance policy mandated a binding process. He also wants the Supreme Court to review if he should have been allowed to conduct discovery on the undertakings of the appraisal process.

Farmers contends that Donaubauer agreed in writing to the appraisal process and that his attorney acknowledged doing so in court. Farmers also contends the Court of Appeals correctly decided that under the facts, requiring actual replacement under the policy was not unfair but commercially reasonable.

A decision by the Supreme Court could clarify law in this area. From Milwaukee County.

2007AP2024-CR State v. Welda

This case examines whether Wisconsin’s hate crime statute, § 939.645(1)(b), permits additional punishment when applied to the facts of this disorderly conduct case, referred to by the defendant as a “speech-only” offense.

After being cited, Trappe, Wagner and Welda successfully moved the circuit court to dismiss the hate-crime enhancer. Trappe and Wagner had argued there were insufficient facts contained in the complaint to support the application of the hate crime penalty enhancer.

Welda argued that the charge of disorderly conduct and the increased penalty under the hate crimes law were multiplicitous, in violation of double jeopardy provisions in the state and federal constitutions. The circuit court agreed.

The Court of Appeals reversed, noting the penalty enhancer required proof that the defendants “intentionally selected the person against whom the crime . . . is committed . . . in whole or in part because of the actor’s belief or perception regarding the race . . . of that person. . . .” § 939.645(1)(b), Stats.

The facts of the case support the allegation that Wagner and Trappe used the term “nigger” because of the race of people targeted by their comments, the Court of Appeals found. In addition, the Court of Appeals concluded Welda failed to show that the Legislature had not intended to provide for cumulative punishments under the hate crime statute.

Welda petitioned for review by the Supreme Court, which is expected to consider three issues:

If Wisconsin’s hate crime law permits additional punishment in a speech-only disorderly conduct case when the speech itself forms the basis for the penalty enhancer?

Whether Wisconsin’s hate crime law, § 939.645(1)(b), Stats., is unconstitutional as applied to the facts of this case. See R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)?

Whether this is in fact a “speech only” disorderly conduct case or whether the facts would support a disorderly conduct charge based on the defendant’s actions in addition to his speech? From Rock County.

2007AP2314 Biskupic v. Cicero

In this case, Vince Biskupic, a former Outagamie County district attorney and an unsuccessful candidate for Wisconsin attorney general in 2002, asks the Supreme Court to reinstate his libel and slander lawsuit filed against eight defendants, including a Shawano newspaper that falsely reported he had been convicted of bribery and graft.

The Court of Appeals agreed that the newspaper had published false statements, but concluded that Biskupic was a public figure and that he had not proven that the defamatory statements had been made with actual malice as required under libel laws.

Actual malice means that the speaker or writer made the false statement with actual knowledge that it was false or with reckless disregard for whether the statement was false.

In August 2004, the Shawano Leader newspaper reported that circuit court judges in the Ninth Judicial Administrative District had voted to stop allowing judges to order convicted defendants to pay money to nonprofit organizations.

In its reporting, the newspaper quoted Stacey Cicero, the director of an anti-domestic violence group as saying: “ ‘I believe it was done in response to the bribery and graft cases involving former Winnebago County District Attorney Vince Biskupic.’”

The article continued with an unattributed statement: “Biskupic was convicted of accepting bribes to dismiss cases. Some of the money that defendants paid to have their cases dismissed went to organizations that he (Biskupic) was involved in or into his own pocket.”

Biskupic was never Winnebago County District Attorney, and he was never convicted of accepting bribes. Biskupic had served as an assistant district attorney in Winnebago County from 1989 to 1994 under then-Winnebago County District Attorney Joe Paulus. In 2002, Paulus was voted out of office amid bribery allegations and Paulus was convicted in 2004 on two federal counts that he accepted approximately $50,000 to fix cases.

Biskupic filed suit in August 2005, alleging Cicero’s comments were slanderous and that the Leader, which twice attempted to correct the story in print, had libeled him.

The circuit court granted summary judgment in favor of Cicero, the Leader and reporter, who used the byline name Joe Vandel at the time. The Court of Appeals affirmed the circuit court, which concluded “the defamation occurred as a result of confusion and negligence, not malice.”

Biskupic asks the Supreme Court to review three issues:

Based on the applicable case law, and considering the evidence in the light most favorable to the non-moving party (the petitioner), were the defendants entitled to summary judgment?

For purposes of
the debate reported in the Aug. 23, 2004 newspaper article, was the petitioner a “limited-purpose” public figure?

Was the plaintiff entitled to a sanction against the newspaper defendants or a jury instruction on spoliation based on the destruction of reporter’s interview notes subsequent to the newspaper defendants being placed on notice of potential libel litigation? From Shawano County.