New Supreme Court Cases

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

2007AP2711-CR State v. McGuire

This case, involving allegations of sexual assault by a priest, examines the statute of limitations’ tolling provision and whether a 36-year delay in prosecuting violated the rights of the accused.

Background: Donald McGuire was a Jesuit priest, who at the time of the allegations taught at an academy in Illinois.

In 2003, Victor B. and Sean C. told police they were students at the academy during the mid-to late-1960s when they traveled separately and on different occasions to a cottage in Fontana, Wis., where McGuire allegedly had sexual contact with them.

A criminal complaint was filed in 2005, and a trial held during 2006. The jury convicted McGuire on five counts, and he was sentenced to seven years initial confinement and 20 years probation. The prison term was stayed while McGuire challenged the conviction. He claims the tolling provision of Wis. Stat. § 939.74 (1) (1966-69) is unconstitutional as applied to him, and that the delay resulted in prejudice. He also contends that new evidence was discovered and that many witnesses who would have aided in his defense are dead, and the memories of those who did testify at trial had faded.

McGuire acknowledges that Wisconsin’s usual six-year statute of limitations is tolled while a defendant is out of state, but he questions whether the unlimited tolling provision is constitutional where it undermines the accused person’s ability to present a defense.

The state contends the Court of Appeals correctly concluded that there was a rational basis for the tolling provision and that the defendant did not suffer actual prejudice because he was still able to confront his accusers and present a defense. From Walworth County.

2007AP2791 Admanco Inc. (Micael Polsky, receiver) v. 700 Stanton Drive, LLC

This case examines letters of credit under Wis. Stat. ch. 128, (2007-08) and the interaction of laws and relationships among parties involved in a real estate agreement and bankruptcy proceeding.

Stanton has asked the Supreme Court to review two issues:

1) if the beneficiary of a letter of credit from a bank which holds a general business security agreement on all of the debtor’s property, is a “secured creditor” as that term is defined under § 128.25(1) and therefore outside the purview of ch. 128?; and

2) if it violates the “independence principle” in Wis. Stat. § 405.103 and common law governing letters of credit to allow an action against the beneficiary of a letter of credit arising out of the issuer’s enforcement of its security interest against the debtor’s estate?

A decision by the Supreme Court could clarify law in this area. From Fond du Lac County.

2008AP1204 State v. Pinkard

This criminal case examines the law as it relates to the “community caretaker” function of police and constitutional protections against unreasonable search and seizure.

During a hearing on the suppression motion, an officer of the Criminal Intelligence Gang Squad testified that another police officer had received an anonymous call, indicating that two individuals were sleeping in a house where the door was open and cocaine, money and scales were present.

The officer testified that police knocked on the door, which was three-quarters open, and announced themselves as police. After 30 seconds to 45 seconds, police “made the determination to enter and check the welfare of the occupants,” and to determine if the occupants were victims of any type of crime. Police woke Pinkard in a bedroom, where they found cocaine, marijuana and scales in plain view and a pistol under a mattress.

The circuit court concluded that police were acting in their community caretaker function when they entered the residence and Pinkard’s bedroom.

Pinkard argues that the officers did not articulate an objectively reasonable basis for performing a caretaker function under the facts of his case. The anonymous caller did not indicate concern for the occupants of the residence, and no paramedic was called, Pinkard contends. Police could easily have called the house or checked with neighbors to determine if there was any reason to expect an emergency situation, Pinkard contends. From Milwaukee County.

2008AP1703 Dawn M. Sands v. Menard Inc.

This case examines whether reinstatement of an employee as provided in an arbitration award is required when neither the employer nor former employee requested it as a remedy.

The arbitration panel awarded Sands approximately $1.4 million in compensatory and punitive damages. It also ordered Menard to reinstate the plaintiff to a position with a specified salary and bonus, although neither party had sought reinstatement.

Menard Inc. has asked the Supreme Court to review lower court decisions denying its motion to vacate a portion of an arbitration award requiring Sands’reinstatement to her former position. Specifically, Menard asks if its right to choose its general counsel must yield to the arbitration award when relations between it and the employee are irretrievably broken.

The Court of Appeals said Menard was essentially arguing that the arbitrators erroneously exercised their discretion in failing to explicitly consider that Menard did not want to reinstate the plaintiff. The court said it does not review arbitration awards for an erroneous exercise of discretion.

In its petition for review, Menard argues that, “supreme court review is critical to determine when a client can be forced to rehire counsel whom it has discharged, in whom it has lost confidence, and with whom it continues to be in direct conflict.”

A decision by the Supreme Court is expected to clarify the competing public policy concerns of prohibiting employment discrimination and requiring a relationship of trust and confidence between a client and its attorney. From Eau Claire County.

2008AP3065-67/2009AP136-38 Sheboygan Co. DHHS v. Tanya M.B. and William S.L.

This case examines law regarding the termination of parental rights (TPR) and whether a trial court order that does not specify services for children, aside from inherent supervision by the county Department of Health and Human Services’ (DHHS), is invalid for failing to comply with Wis. Stat. 48.355.

On March 7, 2008, the county DHHS filed petitions for the involuntary termination of the parental rights of both William and Tanya to all three children, based on the underlying CHIPS dispositional orders entered on March 25, 2004. The TPR petitions cited William’s and Tanya’s failure to meet the conditions set forth in the CHIPS dispositional orders.

A jury ultimately found that the county DHHS had met its burden as to the elements underlying grounds for termination, including that it had made a reasonable effort to provide the services ordered by the court.

William and Tanya then both filed motions after asking the court to dismiss the cases based on the defect in the 2004 CHIPS order. The March 2004 dispositional orders set forth numerous conditions to be met for the return of the childre
n; however, the court did not order any services to be provided to the child and family.

The trial court denied the motions to dismiss on the grounds that the “defects” in the orders had not been timely raised. Both parents appealed. The court of appeals reversed, concluding Wis. Stat. § 48.355 requires the trial court to order the Department to provide specific services in a CHIPS order.

A decision by the Supreme Court could have substantial impact, not only on this case, but potentially statewide as there are likely many CHIPS dispositional orders that don’t itemize services a county must provide. Such a decision also may resolve potentially conflicting Court of Appeals’ decisions. From Sheboygan County.

2008AP652-CR State v. Ringer

In this interlocutory appeal, the Supreme Court examines the threshold necessary for a defendant in a sexual assault case to introduce evidence at trial of the alleged victim’s allegation of sexual assault in a previous case. An interlocutory appeal is an appeal that occurs before the trial court’s ruling on the entire case.

The Court of Appeals ruled that the circuit court properly allowed the evidence pursuant to Wis. Stat. § 972.11(2)(b)3 as untruthful allegations of sexual assault.

The state contends that lower courts misapplied the ruling in State v. DeSantis, 155 Wis. 2d 774, 456 N.W.2d 600 (1990), with respect to the threshold necessary to show the previous allegations were untruthful, and the holding in State v. Rognrud, 156 Wis. 2d 783, 457 N.W.2d 573 (Ct. App. 1990), by ruling that a prior untruthful allegation of sexual assault may be proven by extrinsic evidence. The state also contends, contrary to the court of appeals’ decision, that it has not waived its right to raise the issue regarding proof by extrinsic evidence.

The state says a prior allegation of sexual assault is not proven untruthful just because there was not enough evidence or it was never prosecuted. In addition, there is no precedent addressing whether the failure to prosecute renders a prior allegation untruthful, according to the state.

Ringer did not respond to the state’s petition for review by the Supreme Court.

A decision by the Supreme Court is expected to send the case back to the trial court for a ruling on the entire case. From Barron County.

2008AP1521-CR State v. Imani

This criminal case examines the legal standard for mandating a new trial in a case where there is an inadequate colloquy followed by a denial of a request for the defendant to represent himself in court.

The Court of Appeals rejected the claim that there was a valid waiver of counsel because the trial court failed to conduct a Klessig colloquy. See State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997). Pursuant to Klessig, if a defendant seeks to exercise his right of self-representation, the trial court must ensure that the defendant knowingly, intelligently and voluntarily waives the right to counsel, and is competent to proceed pro se.

The state has asked the Supreme Court to review the Court of Appeals’ decision ordering remand instead of a retrospective evidentiary hearing after finding that the circuit court failed to conduct the colloquy concerning self-representation under Klessig. From Waukesha County.

2008AP1700 Maryland Arms Ltd. Partnership v. Connell

In this landlord-tenant dispute, the Supreme Court is asked to examine whether a landlord and tenant may contractually agree to affix liability on a tenant for any property damage that, while caused by an act of the tenant, was not caused by the tenant’s negligence or improper use of the leased premises.

The Connells argue that Wis. Stat. § 704.07, which regulates the duties of landlords and tenants with regard to damages, requires that Cari must be negligent in connection with the fire as a precondition to the imposition of liability.

The circuit court disagreed, concluding that the lease provision made Cari liable to Maryland Arms “for all damage” to the apartment “in any way caused by the acts of” Cari Connell.

The Court of Appeals reversed, concluding that Maryland Arms should be financially responsible for the fire damage.

Maryland Arms appeals to the Supreme Court. From Milwaukee County.