Please ensure Javascript is enabled for purposes of website accessibility

Wisconsin Supreme Court has voted to accept 18 new cases

By: WISCONSIN LAW JOURNAL STAFF//October 27, 2010//

Wisconsin Supreme Court has voted to accept 18 new cases

By: WISCONSIN LAW JOURNAL STAFF//October 27, 2010//

Listen to this article

2007AP35 Rasmussen v. General Motors Corp.

The issue raised in the petition is whether the Court of Appeals erred in holding that Wisconsin’s long-arm statute, Wis. Stat. § 801.05(1)(d), does not subject Nissan Japan to personal jurisdiction in Wisconsin.

Rasmussen says in determining whether there is general personal jurisdiction over a person, the court will attribute to a defendant any person’s acts for which the defendant is legally responsible. They argue that a corporation is a legal fiction that can act only through its agents. The agents may be other corporations, including subsidiaries. Rasmussen reasoned since corporations cannot act other than through agents, § 801.05(1)(d) necessarily provides that general personal jurisdiction may be exercised over a non-resident corporation where its agents engage in substantial and not isolated activities on its behalf in Wisconsin.

Nissan Japan says the circuit court did not find that Nissan North America’s activities were undertaken on behalf of Nissan Japan. Instead, the circuit court specifically found the absence of any such evidence, and it rejected the plaintiffs’ claim that Nissan North America was merely the alter-ego of Nissan Japan operating in Wisconsin such that Nissan Japan could be subject to general jurisdiction under § 801.05(1)(d). From Milwaukee County.

2008AP3182 Ottman v. Town of Primrose

In this case, the owners of a farm in the Town of Primrose ask the Supreme Court to review the denial by the town board of permits required to build a home and driveway on agricultural property.

Steve and Sue Ottman ask the Supreme Court to review several issues:

Does the current judicial rule on deference to land use decisions by smaller units of government overly insulate the balancing of community interests and individual property rights from judicial review?

Is the town engaged in regulation of the use of land such that statutory certiorari applies and the judicial rule limiting the scope of statutory certiorari should be overruled?

Does the decision by the town fail to withstand conscientious judicial scrutiny of the basis for deference and the customary standard of judicial review?

In their petition for review, the Ottmans contend the town erred in denying their application for building and driveway permits. As an initial matter, they urge this court to grant review in order to revise the historic rule of judicial deference to land use decisions. They argue that it is inappropriate to give great deference to land use decisions made by smaller units of government.

The Ottmans say land use decisions by larger units of government typically have the benefit of input from staff having professional experience in planning or zoning administration. They argue as smaller units of government assume a larger role in land use decision-making, the challenges not only to provide an impartial tribunal but also to provide one having the skill and sensitivity needed to adjudicate the competing legal rights and interests of the community and the applicant. From Dane County.

2009AP538 Kilian v. Mercedes-Benz

This case examines provisions of Wisconsin’s “Lemon Law” as it relates to a lease agreement.

Specifically, Kilian’s petition asks the Supreme Court to review several issues:

1. Is a consumer entitled to an award of attorney fees pursuant to § 218.0171(7), Wis. Stats., where the consumer sues for rescission of a motor vehicle lease to stop the lessor’s enforcement of the lease but the consumer did not suffer a separate pecuniary loss?

2. Does a consumer suffer damages under § 218.0171(7) where attorney fees are incurred to block the enforcement of a motor vehicle lease in violation of § 218.0171(2)(cm)3., Wis. Stats.?

3. Can a consumer recover damages pursuant to § 218.0171(7) for defamation that is a direct result of enforcement of a motor vehicle lease in violation of § 218.0171(2)(cm)3.?

Justice Annette Kingsland Ziegler did not participate. From Waukesha County.

2009AP564 DeBoer Transp. v. Swenson

In this case, the Supreme Court examines when an administrative agency’s interpretation of a statute and its application of facts have a rational basis, and when it does not.

Specifically, Swensen asks the Supreme Court to review:

1. Does Wis. Stat. § 102.35(3) require employers to provide injured workers special accommodations for personal obligations not provided to uninjured workers?

2. If § 102.35(3) requires employers to provide injured workers special accommodations for personal obligations, what standard should the Commission apply when determining which special accommodations should be granted?

DeBoer says the level of deference to be given administrative agency decisions is well established and does not require further clarification. From Wood County.

2009AP1559 Boerst v. Henn

The issue raised in the petition is whether “the doctrine of acquiescence” allows mistaken boundaries to become legal boundaries after 20 years of mistaken belief has been passed.

In their petition for review, the plaintiffs argue that the lower courts erroneously held that the doctrine of acquiescence applied here and that the doctrine of acquiescence requires uncertainty about the true boundary line that causes a controversy which the neighbors choose to resolve by agreeing to a different boundary.

The plaintiffs argue that short of proving adverse possession or acquiescence, owners like the defendants, who are mistaken about their true boundary must rely exclusively on their deed to find it. And, unless they can prove adverse possession, can produce a boundary agreement, or their ownership rests on an ambiguous deed, extrinsic evidence of roads and fences is inadmissible to fix their boundary lines. From Ashland County.

2008AP1139 State v. Ninham

In this case, the Supreme Court is asked to review if the life sentence of a boy convicted of committing first-degree intentional homicide at the age of 14 years constitutes cruel and unusual punishment. The case was held in abeyance pending Sullivan v. Florida, No. 08-7621, 560 U.S. ___ (2010).

Ninham asserts that he is the only person in the State of Wisconsin “who has been sentenced to die in prison” for an offense committed at the age of 14. He asks the Supreme Court to examine several issues:

1. Does United States Supreme Court precedent establishing that age has constitutional meaning in the sentencing of children and Wisconsin law establishing heightened protections for 14-year-old children now require a specialized inquiry into the constitutionality of sentencing a 14-year-old to life without possibility of parole?

2. Whether, in light of the United States Supreme Court precedent and Wisconsin law, the inquiry into whether a sentence is unduly harsh and excessive should include specialized consideration of the offender’s age and level of development at the time of the offense.

3. Whether new scientific evidence regarding adolescent brain development that bears on distinctly diminished culpability and heightened rehabilitative potential of children is, in light of the United States Supreme Court decision in Roper a new factor that is highly relevant to and changes the original sentencing considerations so as to require modification of Omer Ninham’s sentence.

The Court of Appeals’ decision comments that, “[t]he Eighth Amendment does not compel lenity based on a killer’s chaotic childhood.” The Court of Appeals rejected the argument that recent scientific evidence of adolescent brain development constitutes a “new factor” noting that the sentencing court was well aware of the differences between juveniles and adults when it rendered sentence in this case.

The state opposes review, asserting that the death penalty cases cited by Ninham “do not in any way render his sentence unconstitutional.”

A decision by the Supreme Court could clarify if the life sentence handed down under the circumstances presented here is constitutional in light of recent U.S. Supreme Court decisions. From Brown County.

2009AP806-CR State v. Beauchamp

In this case, the Supreme Court examines whether “dying declarations” made under the circumstances presented here constitute a permissible exception to the confrontation clause of the Sixth Amendment to the U.S. Constitution. The confrontation clause generally guarantees a criminal defendant’s right to confront an accusing witness in court.

The Court of Appeals first observed that the traditional rationale for receipt of the dying declaration as an exception to the hearsay rule was the assumption that no person will “leave life with a lie on the lips.” See Idaho v. Wright, 497 U.S. 805, 820 (1990). Beauchamp argues that whatever validity that assumption might have had in the era when the dying-declaration rule was first adopted, it has lost much of its vitality today.

Beauchamp contends that the “rationale ignores other motivations that might be just as powerful, such as bias or the desire for revenge, and the organic changes attendant to traumatic injuries that can affect the brain and the victim’s abilities to accurately perceive, recall, and recount what has occurred.” From Milwaukee County.

2010AP321 Brown County DHS v. Brenda B.

In this termination of parental rights case, the Supreme Court examines a trial court’s discretion in denying a motion to withdraw a no contest plea without an evidentiary hearing.

Brenda argues that it was insufficient for the court to simply confirm that she understood only the two primary dispositions set forth at Wis. Stat. §§ 48.427(2) and (3) (providing that either the termination petition would be dismissed or her parental rights would be terminated). She asserts the court was required to confirm her understanding of “the full range of options” specified under the statute.

The Court of Appeals observed that it “would be not merely burdensome, but practically impossible, to convey a full understanding of the court’s disposition options upon termination.” Thus, the court concluded that “parents must understand they may lose their child as a result of their no contest plea, but need not have a complete understanding of every possible alternative available to the court should it determine termination is in the child’s best interest.” From Brown County.

2007AP203 Polsky v. Virnich

The Supreme Court previously granted certification of this case and vacated the certification on a split vote, remanding to the Court of Appeals.

On remand following the vacated certification, the Court of Appeals reversed. It said Beloit Liquidating ruled that corporate officers did not owe fiduciary duties to creditors until: (1) the corporation became insolvent and (2) was not longer a “going concern.”

The Court of Appeals said Beloit Liquidating ruled that corporate officers did not owe fiduciary duties to creditors until: (1) the corporation became insolvent and (2) was not longer a “going concern.” Here, there was no dispute that at the time of Virnich and Moores’ alleged misconduct, Communications Products was a going concern. Therefore, the Court of Appeals concluded, “under Beloit Liquidating, any claim for a breach of fiduciary duty to creditors is barred.”

Polsky raises four issues in his petition for review by the Supreme Court:

1. Whether the holding of Beloit Liquidating prohibits receivers from asserting claims, on the corporation’s behalf, of breach of fiduciary duty to the corporation;

2. Whether officers and directors, who self-deal against the corporation’s interests “enjoy a unity of interest” with the corporation, mandating application of the intracorporate conspiracy doctrine;

3. Without an underlying actionable violation of an independent right, is a conspiracy claim actionable?

4. Whether a corporation’s tort claim accrues before the claim is capable of enforcement when the tortfeasors are the only individuals who can enable the corporation to assert the claim.

From Grant County.

2008AP2929 Day v. Allstate Indemnity

This insurance case, arising from the tragic death of a child who drowned in a bathtub during an epileptic seizure, examines the interpretation of the family member policy exclusion.

Wendy Day seeks review of the court of appeals’ decision, reversing the summary judgment granting coverage. She presents two issues:

1. In the context of a wrongful death claim brought by someone other than an insured person, whether the subject Allstate family exclusion provision unambiguously precludes coverage?

2. In the context of a wrongful death claim brought by a plaintiff who is not a family member, is not an insured person, and who does not have any family ties with the insured tortfeasor, against a tortfeasor who is not partial to the plaintiff based on family ties, under circumstances where the insured tortfeasor will certainly cooperate and assist the insurer in defending the claim, does public policy preclude application of a family exclusion provision?

The petition argues ambiguities in policies must be construed in favor of coverage and exclusions narrowly construed against the insurer. The petition argues that here, the unique circumstances render the exclusion ambiguous.

Allstate contends the only issue is whether the plain language of the exclusion applies. From St. Croix County.

2009AP191 Stupar River v. Town of Linwood Board of Review

In this case, the Supreme Court examines whether a property assessment was proper, and whether Stupar River, LLC is entitled to reimbursement and interest due to an over-assessment pursuant to Wis. Stat. § 74.37(5).

The Court of Appeals concluded it was incorrect to assume that the town assessor had reduced the property’s 2006 assessment to reflect its true market value. The Court of Appeals explained that the reduction in the 2006 assessment was not based on a change in the fair market value but rather based on an attempt to equalize market value in response to a Wisconsin Department of Revenue report.

Stupar River requests the Supreme Court review three issues: (1) whether the assessor can value real property at something other than fair market value; (2) whether Stupar River, LLC, is entitled to be assessed in 2003-2005 at the same value as in 2006; and (3) whether Stupar River is entitled to reimbursement in interest for an over-assessment pursuant to Wis. Stat. § 74.37(5). From Portage County.

2009AP1252 State v. Harbor

In this case, the Supreme Court examines the circumstances under which a court may modify a sentence because of a “new factor,” and whether a defendant was denied effective assistance of counsel because her lawyer failed to present or investigate pertinent sentencing factors.

The post-sentencing report included information about Harbor’s background, indicating she was sexually assaulted as a child and was born “the child of a child” to a 16-year-old mother who had addiction issues and had been the victim of physical abuse.

The court said given Harbor’s past criminal history, the nature and seriousness of the current offense while committed on supervision, and the risk of harm presented to the community, the sentence was warranted. Therefore, the circuit court did not conclude that counsel had been ineffective, because it was not persuaded Harbor was prejudiced due to the absence of a presentence report.

The Court of Appeals affirmed, observing that the information in the post-sentencing investigation shed light on difficulties Harbor faced in the past, as well as currently, but did not address the circuit court’s overriding concern of protection of the public. The Court of Appeals concluded that because the circuit court’s primary concern was protection of the public, the report received after sentencing failed to show information highly relevant to the imposition of the original sentence. Accordingly, the Court of Appeals concluded Harbor was not entitled to sentence modification based on a new factor.

Harbor asks the Supreme Court to review whether the post-sentencing report presents a new factor justifying sentence modification, and whether she was denied effective assistance of counsel at sentencing. From Milwaukee County.

2009AP956-CR State v. Burris

In this criminal case stemming from a shooting in Milwaukee, the Supreme Court examines the deference to be given to a circuit court’s discretionary use of jury instructions, based on Supreme Court opinions.

The dispute at trial centered on whether Burris had exhibited “utter disregard for human life” (first-degree recklessly causing bodily injury), whether he had simply recklessly caused bodily injury (second-degree recklessly causing bodily injury), or whether the shooting had been accidental (not guilty).

After deliberating a while, the jury sent a written question to the judge asking whether it could consider facts and circumstances after the shooting. The state agreed that the court should give a supplemental instruction proposed by the judge. Defense counsel, however, objected, arguing that the court should simply instruct the jurors to go over the original instructions again. The judge provided a supplemental instruction that quoted language from State v. Jensen, 2000 WI 84, ¶32, 236 Wis. 2d 521, 613 N.W.2d 170.

The Court of Appeals’ decision addressed Burris’s argument that the circuit court had erred in giving an instruction that had misled the jury. The Court of Appeals noted the distinction between a claim that a challenged jury instruction was an inaccurate statement of the law and a claim that an instruction, while legally accurate, misled the jury.

Over a dissent by Judge Ralph Adam Fine, the Court of Appeals agreed with Burris that in the present case the correct answer to the jury’s question was simply “yes,” that it could consider facts and circumstances after the shooting. It concluded that the circuit court’s supplemental instruction had misled the jury. It therefore reversed Burris’s conviction and remanded the case to the trial court for additional proceedings.

The state asks the Supreme Court to review two issues: whether the jury instruction quoting a Supreme Court decision was erroneous and if the Court of Appeals applied the proper standard of review given the circumstances of this case. From Milwaukee County.

2008AP2765-CR State v. Funk

This criminal case, stemming from the sexual assault of a child, examines the method by which a court determines potential juror bias.

The Court of Appeals said once it has been established that a juror gave an incorrect or incomplete response to any material question, the moving party must be afforded the opportunity to establish bias.

The state argued on appeal that it was improper for the trial court to make a finding that the juror failed to answer a material question about giving prior testimony in a criminal matter because the defendant’s motion had focused on whether she had failed to answer a question about whether she had ever been the victim of a sexual assault, and no one asked her at the motion hearing why she had not raised her hand in response to the question about prior testimony.

A decision by the Supreme Court could help resolve possible conflict between prior decisions on the proper test to be used to determine if a juror is biased. From Juneau County.

2009AP25-CR State v. Rhodes

In this homicide case, the Supreme Court is asked to examine the constitutional principles governing confrontation and compulsory process in limiting cross-examination of witnesses.

The Court of Appeals noted that a circuit court’s decision to admit or exclude evidence is discretionary and will not be reversed provided the decision was made in accordance with accepted legal standards and the facts of record. State v. Pharr, 115 Wis. 2d 334, 342, 340 N.W.2d 498 (1983). The court also noted that a defendant’s right to confront the witnesses against him is central to the truthfinding function of a criminal trial, and a defendant’s right to cross examine is an essential and fundamental requirement.

The state now asks the Supreme Court to review the following issues:

1. Did the court of appeals correctly apply the constitutional principles of law governing confrontation and compulsory process when it concluded that the circuit court impermissibly limited Olu A. Rhodes’ cross-examination of a state witness, Nari Rhodes?

2. If the answer to the foregoing question is “yes,” was the circuit court’s error harmless?

From Milwaukee County.

2009AP775 E-Z Roll Off v. County of Oneida

This case involves allegations that Oneida County helped a waste-hauling company engage in monopolistic behavior by selectively charging reduced dumping fees at a county-run landfill. The Supreme Court is asked to examine the notice requirements of Wis. Stat. § 893.80(1) for filing claims against a county.

The Court of Appeals said whether the notice provision of § 893.80(1) applies to specific statutory actions is a question of statutory interpretation. The Court of Appeals noted that E-Z Roll Off argued for an exception to the notice requirements for its ch. 133 antitrust claim. The Court of Appeals said the primary focus in that regard was on § 133.16,  injunction, pleading, and practice. The Court of Appeals went on to note that the notice of claim is not subject to any filing deadline.

Oneida County asks the Supreme Court to review the following issues:

1. Do the notice requirements mandated by Wis. Stat. §893.80(1) and §59.07 apply to Plaintiff-Respondent E-Z Roll Off LLC’s action for declaratory relief under Wis. Stat. §133.03 and damages alleged under Wis. Stat. §133.18?

2. Was the Notice of Injury timely?

3. Did Oneida County have actual notice of the injury and was it prejudiced because it was not timely served with the Notice of Injury?

4. Does the continuing violations doctrine apply to Wis. Stat. §893.80(1)?

From Oneida County.

2009AP1714 Emjay Inv. Co. v. Village of Germantown

In this case, the Supreme Court examines the special assessment process and the application of the statute of limitations on appeals under § 66.0703(12)(a).

Emjay presents three issues for Supreme Court review: (1) Wis. Stat. Ch. 66 does not permit a “contingent” special assessment, rendering the 90-day limitation inapplicable; (2) the Village never adopted a final resolution in compliance with § 66.0703(8)(c), so the 90-day limitation does not apply; and (3) Emjay may challenge the special assessment by means not barred by the 90-day limitation.

Emjay asserts that because of the contingent nature of the special assessment, the village’s notice and resolution failed to apprise him the assessment adversely affected its property, thereby failing to trigger § 66.0703(12)’s 90-day limitation. Emjay claims the lack of reasonable notice and the deprivation of the full proceeds of the sale his property raise issues of due process.

A decision by the Supreme Court could clarify the law and potentially affect property owners statewide. From Washington County.

2009AP1669 Fischer v. Steffen

In this insurance case resulting from an automobile accident, the Supreme Court examines the interaction of law involving arbitration and subrogation claims for medical expenses.

The Court of Appeals concluded, in part, “…that once the plaintiff has been paid in full by the subrogated insurer, that insurer stands in the shoes of the plaintiff.” The insurer is then free to determine how it wishes to go about seeking reimbursement from the other party to the accident and that party’s insurer.

Fischer asks the Supreme Court to rule that an insurer cannot settle or arbitrate a subrogation claim for medical expenses until there has been a determination that the plaintiff insured has been made whole. He contends that the Court of Appeals’ decision “seems to obfuscate” established settlement procedure in tort cases involving subrogation claims.

The Supreme Court’s decision is expected to address the effect of a subrogated insurer’s agreement to arbitrate its subrogation claims against the opposing party and that party’s insurer prior to a lawsuit being filed by the insured and without the insured’s consent. From Sheboygan County.

Polls

Should Steven Avery be granted a new evidentiary hearing?

View Results

Loading ... Loading ...

Legal News

See All Legal News

WLJ People

Sea all WLJ People

Opinion Digests