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New Supreme Court cases

The Wisconsin Supreme Court has voted to accept four new cases.

2009AP1351-CR State v. Kandutsch

In this drunken driving case, the Supreme Court is asked to review if a report from an electronic monitoring device may be admitted into evidence without expert testimony as to the scientific validity, accuracy, and reliability of the device, and if a report generated by an electronic monitoring device is inadmissible hearsay.

The circuit court admitted the evidence, concluding they were properly authenticated and generated in the ordinary course of business. A jury found Kandutsch guilty of fifth or subsequent offense OWI. He appealed, and the Court of Appeals affirmed.

The Court of Appeals concluded that the electronic monitoring system’s operation is not so unusually complex or esoteric as to demand the assistance of expert testimony. It also concluded that readings generated by a machine are generally excluded from the realm of hearsay because they are the result of a process, not a statement by a declarant. From Marathon County.

2009AP2784 Klemm v. American Transmission Co.

This case examines Wis. Stat. § 32.28(3)(d) and litigation costs arising from a dispute over the value of land involved in an easement for land to be used for a high-voltage power transmission line.

Section 32.28(3)(d) provides that litigation expenses shall be awarded to the condemnee if “the award of the condemnation commission under Wis. Stat. § 32.06(8) exceeds the jurisdictional offer or the highest written offer prior to the jurisdictional offer by at least $700 and at least 15 percent. . . .”

More specifically here, Supreme Court is asked to review whether § 32.28(3)(d) requires litigation expenses to be awarded to a property owner who conveys property in lieu of condemnation (meaning no jurisdictional offer was ever issued) and where the property owner then appeals the amount of the just compensation award and ultimately receives an amount that exceeds the amount originally paid by more than $700 and 15 percent.

The circuit court held that the Klemms were entitled to litigation expenses under Wis. Stat. § 32.28(3)(d), even though they accepted ATC’s negotiated offer and there was, consequently, no jurisdictional offer. ATC appealed, arguing the court misinterpreted § 32.28(3)(d), and the Court of Appeals reversed. From Marathon County.

2009AP2934 State v. Buchanan

In this case, the Supreme Court examines issues related to Deandre Buchanan’s conviction for possession of less than 200 grams of THC or less with intent to deliver after police recovered the drug while searching his vehicle during a traffic stop.

The key issue here is whether case law supports the arresting officer’s decision to use the petitioner’s arrest history as part of the basis for performing a protective search following a routine traffic stop.

While checking Buchanan’s license, Gordon learned of a pending charge for possession with intent to deliver. Gordon also learned that Buchanan had multiple previous arrests for murder, armed robbery and false imprisonment. Gordon waited for a backup officer before approaching Buchanan again.

Concerned that Buchanan was armed, the officers opted to conduct a protective search of Buchanan and the portions of the vehicle accessible from the driver’s seat. The pat-down search produced no weapons. As Gordon bent down to inspect the area around the driver’s seat, he smelled marijuana and noticed a green plant underneath the ashtray. Gordon tested the plant, confirmed it was marijuana, and arrested Buchanan.

Buchanan moved to suppress the drug evidence. The circuit court denied the motion and the matter proceeded. On appeal, the key issue was whether the protective search violated Buchanan’s constitutional rights because it was not based on reasonable suspicion that he was dangerous. The court of appeals affirmed and this petition followed. From Trempealeau County.

2009AP1579 State v. West

In this case, the Supreme Court is asked to review statutory and constitutional issues related to Wis. stat. ch. 980, the state’s law that allows civil commitment for persons deemed to be sexually violent.

Specifically, West’s petition raises the following issue: Does 2005 Wis. Act 434 § 118 (codified at Wisconsin Statutes § 980.08(4)(cg)) shift the burden of proof at a supervised release hearing under Chapter 980 to the civilly-committed respondent?

Prior to the effective date of the new legislation on Aug. 1, 2006, the statutory presumption was to grant a petition for supervised release, and the state clearly bore the burden to show that release was not warranted. West argues that the new statute, which does not explicitly assign the burden of proof, should be similarly interpreted to place the burden on the state. Among other things, he urges that the supervised release provision should be treated like a criminal statute under the rule of lenity and be given a narrow construction in favor of the person whose liberty is at stake. In addition, West argues that the statute as modified cannot be interpreted to shift the burden of proof to the committed person because such a shift would violate constitutional due process and equal protection rights.

West’s petition for review essentially asks this court to review the rules of law established by the Court of Appeals in State v. Rachel, 2010 WI App 60, 324 Wis. 2d 465, 782 N.W.2d 443, which decided the burden of proof and constitutionality issues contrary to the position taken by both Rachel and West. From Milwaukee County.

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