Wis. Supreme Court takes on 10 new cases

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The Wisconsin Supreme Court has voted to accept 10 new cases.

2011AP407-09-CR State v. Novy

This case examines two issues arising from the conviction of Brent T. Novy on two counts of stalking, six counts of bail jumping, and one count of violating a harassment restraining order.

Did the trial court err in allowing fingerprint evidence to be admitted in the state’s rebuttal when the court had previously ruled the evidence was not admissible because the state violated the discovery statute by not providing it to the defense?

Was Novy deprived the right to an impartial jury and fair trial when defense counsel observed a juror sleeping during his closing argument?

2011AP564 Schinner v. Gundrum

This case examines the meaning of “occurrence” and “accident” under the terms of a homeowners insurance policy and how they apply to the facts presented here. The Supreme Court is asked to review whether a homeowners insurance policy covers the 21-year-old host of a drinking party who provided alcohol to an underage guest who assaulted another guest.

Marshall Schinner filed a lawsuit alleging that he sustained serious injuries after being assaulted by Matthew Cecil. Cecil was a guest at a party hosted by Michael Gundrum in a shed on Gundrum’s parent’s business property. The shed was used in part to store personal property, including snowmobiles that were explicitly listed in a West Bend homeowner’s policy.

Cecil, who was under the legal drinking age at the time, became belligerent and assaulted Schinner during the party. The parties agree that Cecil’s assault on Schinner was intentional and that Schinner’s injuries did not result from inadvertent or merely reckless conduct by Cecil. The parties also agree there is no allegation that Gundrum personally participated in or assisted Cecil in the assault.

Schinner sued Gundrum for negligence, alleging that Gundrum’s conduct, which included providing alcohol to Cecil, was a cause of the assault and Schinner’s resulting injuries. West Bend was added to the suit. West Bend moved for summary judgment, arguing it should be dismissed from the case because there was no “accident,” and therefore no “occurrence” under the policy.

2011AP914 Est. of Hopgood v. Boyd

This case involves a claim against the state of Wisconsin arising from an accident involving a state-owned vehicle that was driven by a state prison inmate when it rolled over on the highway, resulting in the death of one passenger and injuring four others.

The Supreme Court examines what constitutes an oath for purposes of complying with Wis. Stat. § 893.82, which dictates the process and requirements for filing a claim against the state.

Essentially, the issue raised in the petition is whether the plaintiffs properly “swore to” the contents of their notices of claim and thereby strictly complied with § 893.82, Stats., and the requirements of Kellner v. Christian, 197 Wis. 2d 183, 539 N.W.2d 685 (1995).

2011AP1044-CR/2011AP1105-CR State v. Neumann

This certification involves consolidated appeals that raise issues related to statutory construction, constitutional rights and appropriate jury instructions for persons charged with reckless homicide based on their choice to rely on prayer rather than medical treatment for an ill child.

The defendants, Dale and Leilani Neumann, were the parents of 11-year-old Madeline Kara Neumann, who died from uncontrolled diabetes mellitus. Madeline had been showing symptoms of illness for about two weeks before her death on March 23, 2008.

The Neumanns were both charged with second-degree reckless homicide, contrary to § 940.06(1), which provides: “whoever recklessly causes the death of another human being is guilty of a Class D felony.” They claimed a statutory right under § 948.03(6), the child abuse statute, and a constitutional right to substitute prayer for medical treatment.

2011AP2067 Marlowe v. IDS Property Cas. Ins. Co.

This case, arising from a dispute over insurance coverage, examines the arbitration process and the authority of arbitrators to determine the necessity and scope of allowable discovery.

The Marlowes were involved in an auto accident with an insured motorist. They asserted an uninsured motorist claim under their policy with IDS Property Casualty Insurance Co. The parties agreed to arbitrate, and a panel of three arbitrators was selected. IDS requested discovery from the Marlowes, including depositions, production of medical records, and an independent medical examination. The Marlowes said they would not comply because, under § 788.07, Stats., discovery in arbitration is limited to taking depositions.

In response, IDS pointed to the portion of the arbitration agreement which said, “Local rules of law as to procedure and evidence will apply.” IDS argued that this provision meant that discovery procedures found in Wisconsin statutes govern the scope and method of discovery. The Marlowes disagreed and continued to refuse to comply with the discovery requests.

2011AP364 Koscielak v. Stockbridge-Munsee Community

This case examines whether tribal sovereign immunity bars a state law tort claim arising from a slip-and-fall incident and the proper legal standard involved in guiding that analysis.

On Feb. 22, 2008, Robert Koscielak sustained injuries when he slipped and fell on ice in the Pine Hills Golf and Supper Club parking lot in Gresham. He and his wife, Mary Koscielak, filed suit against the Stockbridge-Munsee Band of Mohicans under the tribe’s business name, Pine Hills, on June 1, 2010, alleging a variety of tort claims.

Pine Hills moved to dismiss the lawsuit and its motion was converted to a motion for summary judgment. The Tribe argued that Pine Hills was a subordinate economic entity of the Tribe such that Pine Hills was entitled to the sovereign immunity conferred upon the Tribe by federal law.

2010AP3034-CR State v. Sobczak

This case involves charges of possession of child pornography and examines whether a temporary houseguest may consent to a police search of a host’s home and a computer located inside.

Kenneth Sobczak, an adult, lived with his parents. While his parents were away on vacation, Sobczak invited a girlfriend to stay with him at his house for the weekend. She arrived on Friday evening and spent the night. Late in the afternoon on Saturday, Sobczak left to go to work and she stayed at the house. Before Sobczak left, the girlfriend asked him if she could use his laptop computer, as she had no transportation to leave the residence and nothing to do while he was gone. Sobczak agreed that she could use it during his absence.

After Sobczak left, the girlfriend began using the computer. She said an error message appeared on the screen, and she opened a file that contained a video showing two naked females, who appeared younger than 18 years of age, engaged in sexual activity.

The girlfriend walked to a nearby gas station and called her grandmother, who called the police. She then returned to the front porch of Sobczak’s home, where she explained the situation to a police officer. The officer seized the computer and took it with him to the police department. Later that same evening, the police obtained and executed a search warrant for the rest of the Sobczak residence.

The state charged Sobczak with possession of child pornography. Sobczak filed a motion to suppress, claiming that his girlfriend had neither actual nor apparent authority to give consent to a search of the Sobczak home.

2012AP544-W State Public Def. v. COA, Dist. IV

In this case, the Supreme Court will hear arguments on whether post-conviction/appellate defense counsel must obtain permission from a circuit court to access, cite to, or discuss the contents of a pre-sentence investigation report (PSI) in a post-conviction or appellate brief or hearing.

The State Public Defender has asked the Supreme Court to issue a supervisory writ, ordering the Court of Appeals to allow counsel for a criminal defendant to access, cite to, and discuss the PSI in appellate briefs without first obtaining permission from the circuit court. A decision by the Supreme Court is expected to clarify the law and help judges and lawyers handling future criminal cases.

2010AP3153 Bethke v. Auto-Owners Ins. Co.

This case, arising from a fatal car accident, examines two issues related to underinsured motorist coverage: whether an insurance policy that excludes self-insured vehicles from UIM coverage contains an impermissible reducing clause; and whether refusal to pay proceeds based on the definition of underinsured motor vehicle under the facts presented in this situation is contrary to public policy.

2011AP593 Jamerson v. Dept. of Children & Families

This case examines Wisconsin’s new caregiver law, specifically, Wis. Stat. § 48.685(5)(br)5., which mandates that a childcare provider’s certification must be revoked if the provider has been convicted of the enumerated public assistance offenses.

A decision by the Supreme Court could help determine the proper standard of review to apply to state Department of Children and Family (the department) decisions involving Wis. Stat. § 48.685(5)(br)5., and clarify whether a previous conviction under § 49.12(1) & (6) (1989-90), now renumbered as § 49.95, constitutes a barring conviction for purposes of § 48.685(5)(br)5.