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New Supreme Court Cases (74375)

The Wisconsin Supreme Court has voted to grant review in four cases. The case numbers, issues, and counties of origin are listed below.

2008AP755-CR State v. Conger

This certification from the District II Court of Appeals (District IV Court of Appeals’ judges presiding) raises novel issues regarding circuit courts’ supervisory role in accepting or rejecting plea agreements.

Background: After the defendant was bound over for trial, the parties negotiated a plea agreement under which a felony count would be dropped in favor of the defendant pleading guilty or no contest to three misdemeanor counts of possession of marijuana (THC). The drug paraphernalia charge would be dismissed but available as a read in offense for sentencing. The state agreed to recommend two years probation, sentence withheld, conditioned in part on a 90-day jail term.

The trial court refused to accept the plea agreement based on the public interest. The Court of Appeals granted the defendant’s motion for leave to appeal. The state and the defendant are the co-appellants in the appeal, with the trial court, Judge Peter Grimm, the respondent.

The certification asks the Supreme Court to consider three questions:

What is the trial court’s scope of review when deciding whether to accept or reject a plea agreement?

What factors must a trial court consider when determining whether a plea agreement is in the public interest?

Whether a trial court may take into account the view of law enforcement when considering the public’s interest in a plea agreement?

From Fond du Lac County.

2007AP2861 Racine Co. v. Oracular Milwaukee

This case, involving the alleged breach of a contract to set up a software payroll database, examines the definition of “professional services” and whether expert testimony is required under certain circumstances.

Background: The circuit court held that the contract was for services to install computer software and that expert testimony was required as a matter of law.

The County appealed and the Court of Appeals reversed. The Court of Appeals ruled that Oracular “does not have the characteristics shared by the learned professions considered as professionals.” As such, its contract with the County was “a simple contract for services and not a professional services contract.” The Court of Appeals ruled further that expert testimony was not required.

Oracular asks the Supreme Court to review three questions:

Is expert testimony required to prove a branch of contract claim based on timely completion/delay when a contract involves complex interdependent bilateral performance?

What is the proper analysis/criteria for determining whether something is considered a “profession” under Wisconsin law?

Are persons providing computer software programming services relating to customized software considered “professionals” under Wisconsin law?

From Racine County.

2008AP787 Groshek v. Trewin

This case stems from a series of real estate transactions and loan agreements between a couple facing financial difficulties and an attorney who had at times represented them.

Both parties have asked the Supreme Court to review the case.

In their petition for review, the Grosheks ask the Supreme Court to review whether punitive damages may be awarded to a plaintiff who sought and obtained “equitable relief.”

In the petition for cross-review, Trewin asks whether an attorney owes a fiduciary duty to former clients when negotiating and entering into a transaction with them, when they are represented by independent counsel, have sought out the transaction, and initiated negotiations.

Trewin argues that because the conveyance of the property and the lease execution did not occur until late December 2004, when the Grosheks were represented by another attorney, nothing transpired when he was representing them that could constitute a breach of his fiduciary duty. From Portage County.

2008AP1684 Milwaukee Symphony v. DOR

This sales tax case examines whether the term “entertainment,” as used in Wis. Stat. § 77.52(2)(a)2, includes the admission to a symphonic event, such as a Milwaukee Symphony Orchestra (“MSO”) performance.

Background: MSO is a professional, full-time orchestra incorporated as a not-for-profit corporation and presents 100 to 150 concerts each year.

MSO contends that because the Tax Appeals Commission (“the Commission”) has previously excluded events at Circus World Museum and the experimental aircraft association from the definition of an “entertainment” event, the term should be narrowly construed to exclude a symphonic performance with a significant educational component.

The Tax Appeals Commission rejected the argument and determined that the concert performances were taxable.

The circuit court gave deference to the Commission’s decision, while concluding that the Commission erred in distinguishing between education and entertainment because § 77.52(2)(a)2. does not use the term “educational” or “non-educational.” The circuit court remanded to the Commission to permit it to develop a standard to determine whether an event is “entertainment” within the meaning of § 77.52(2)(a)2.

MSO appealed and the Department cross-appealed.

The Court of Appeals affirmed the Commission’s decision, determining that the Commission correctly and reasonably reconciled three previous cases involving questions surrounding sales taxes on certain types of organizations.

A decision by the Supreme Court could affect sales tax revenue and arts organizations statewide. From Dane County.

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