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New Supreme Court Cases

The Wisconsin Supreme Court has voted to accept six new cases. The case numbers, issues, and counties of origin are listed below.

2008AP2759-CR State v. Daniel H. Hanson

The principal issue in this case is whether a person can be convicted of attempting to elude an officer while they are speaking with 911 and driving to a police station. More specifically, the Supreme Court is asked to review the application of Wis. Stat. § 346.04(3) to the facts of this case. The case also raises the question whether the real controversy was tried because the trial court excluded certain evidence.

The Court of Appeals ruled that there was sufficient credible evidence that Hanson’s actions “interfered with or endangered the operation of other vehicles or pedestrians.” Klinkhammer testified that Hanson interfered with vehicles as he cut over to exit at Highway 50, noting that Hanson had to swerve to avoid hitting a squad car parked at the bottom of the off-ramp.

Hanson, however, maintains that none of this captures the real controversy and the case should be retried. Hanson asserts that this case is about a citizen’s right to protect himself from a perceived threat from law enforcement and that the trial court improperly excluded character evidence relating to Klinkhammer’s reputation in the community as being “confrontational, aggressive and hot-tempered.” From Kenosha County.

2009AP2907-CR State v. Spaeth

In this certification, the Supreme Court examines whether compelled incriminating statements made to a probation agent as part of a standard requirement of probation may be considered a “legitimate source wholly independent of compelled testimony” under Kastigar v. United States, 406 U.S. 441 (1972). In that case, the U.S. Supreme Court held that the government may compel incriminating testimony so long as it comes with a grant of use and derivative use immunity.

On appeal, the defendant argues that his statement to police should have been suppressed under the Fifth Amendment to the U.S. Constitution and Article I, § 8 of the Wisconsin constitution. The defendant argues that his statement was a mere extension of compelled statements he made to his probation agent and thus must be suppressed because it too was compelled.

The  District II Court of Appeals says because the defendant’s statements before speaking to police were compelled, the statement he made to police is only admissible if there was a sufficient break from the compelled statements and if the statement to police was not “derived from” the compelled statements

The Court of Appeals points out that under Wis. Admin Code § DOC 328.04(2)(w), the defendant’s probation agent was required to report all violations of the criminal law by clients to a supervisor or appropriate law enforcement authority.  Therefore, the Court of Appeals says once the defendant was compelled to give his incriminating statements to the polygraph examiner and to his probation agent, the agent had a legal obligation to report the statements to police.

The Court of Appeals concludes by saying this area of law is in need of clarification because the fact pattern here will likely recur and because of the tension between Kastigar and the needs and policies of the DOC.  From Winnebago County.

2009AP2176 Maxwell v. Hartford Union High

This case examines whether an insurance company defending a school district owes the district coverage for damages after the district lost a breach of contact lawsuit filed by a teacher whose job was terminated due to budget concerns.

The district sought a declaratory judgment that the CIC policy provided coverage and that CIC was barred from asserting coverage defenses and policy limit defenses. The district argued there is an exception to this rule in situations where the insurer fails to notify the insured of a coverage issue until after the insured suffered prejudice.

The circuit court concluded the critical issue presented was whether, regardless of the exclusion of coverage, CIC’s conduct created coverage where none would otherwise exist. The circuit court said there was a split of authority as to whether, based on waiver, estoppel, negligence, failure to disclaim, or substantial prejudice, an insurer’s conduct can create coverage where none otherwise exists.

The circuit court held that CIC’s conduct could not be determined to create coverage.  The district appealed, and the Court of Appeals reversed and remanded. The Court of Appeals said in part that the pertinent facts in this case were undisputed and the legal issue presented is whether CIC’s exercise of dominion over the underlying lawsuit, without a reservation of rights, operated to provide coverage to the district.

CIC argues that the Court of Appeals confused the duty to defend with the duty to indemnify.  It says pursuant to its duty to defend, it furnished counsel to defend the district on the merits of all claims alleged in Maxwell’s complaint. From Washington County.

2009AP2422 State v. David W. Domke

In this child sexual assault case, the Supreme Court examines law surrounding a claim of ineffective assistance of counsel.

The state’s petition raises the following issues:

h Did defense counsel perform deficiently under Strickland v. Washington, 466 U.S. 668 (1984), because he mistakenly believed that statements the victim made to a therapist during the course of treatment for mental health issues fell within the hearsay exception for statements made for purposes of medical diagnosis or treatment contained in Wis. Stat. § 908.03(4)?

h Did defense counsel perform deficiently when he asked Rusch, the therapist who had treated the victim, whether it was possible that what the victim described as the first of a series of sexual assaults was really a dream?

h Did the Court of Appeals err in finding that Domke suffered prejudice under Strickland v. Washington from the cumulative effect of counsel’s decision to call the victim’s mother as a witness and his failure to seek exclusion of Kim Rusch’s testimony under State v. Huntington, 216 Wis. 2d 671, 695, 575 N.W.2d 268 (1998)? From Oconto County.

2010AP445 State v. Sharon A. Sellhausen

This case examines whether a trial court must on its own initiative, or sua sponte, remove a family member from a panel of potential jurors, and whether the defendant is entitled to a new trial even though the family member did not sit on the jury because the defendant exercised a preemptory strike to remove the juror.

Relying on State v. Tody, 2009 WI 31, 316 Wis. 2d 689, 764 N.W.2d 737, the Court of Appeals ruled that the circuit court erred when it failed to strike the judge’s daughter-in-law from the jury panel.

The Court of Appeals reasoned that forcing an attorney to question the judge’s daughter-in-law or to use a peremptory challenge raised the risk of creating personal animosity between the party and the judge, potentially affecting the attorney’s performance. The Court of Appeals concluded that risk imperiled the overall fairness of the proceedings.

In its petition, the state argues this court should grant review to determine whether a trial judge is required to remove a family member sua sponte from the venire panel and, if so, which family members are subject to the rule.  Also, it contends the court should review whether reversal is required when a trial court fails to sua sponte remove a family member from the venire panel when the family member did not serve on the jury due to the peremptory strike. From Sheboygan County.

2009AP608 Adams v. State

This case involves two petitions for review. A decision by the Supreme Court is expected to establish a precedent as to how the state’s livestock facility permitting process interacts with local zoning authority.

Background: The state’s Livestock Facility Siting Law (Siting Law), 2003 Wis. Act 235 [codified in Wis. Stat. § 93.90 and Department of Agriculture, Trade and Consumer Protection Rule (ATCP) 51,] was enacted in 2004. The law created the Livestock Facility Siting Review Board (Review Board) and establishes standards and procedures for local governments if they choose to require conditional-use permits for the siting of new and expanded livestock operations.

The Town argues that the legislative history of the siting law demonstrates that the law was not intended to eliminate the decision-making authority of local governments over the siting of livestock facilities or to diminish the authority of local governments to protect water quality.

The Town and Adams assert that the Court of Appeals’ preemption decision contradicts the state’s statutory scheme for protecting water quality.  They both emphasize that the protection of water quality is an important public policy that has generally involved all levels of government working together.  They argue that the Court of Appeals’ decision significantly impairs this partnership that has been developed in state statutes and administrative rules as well as local zoning ordinances over the last 35 years.

Larson contends the Court of Appeals reached its decision by simply applying well-established rules of statutory construction to the plain language of the siting law. It notes that the Court of Appeals applied preexisting preemption rules to the question of whether the siting law preempted local governments from adopting more stringent water quality standards. From Rock County.

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