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2009

Supreme Court accepts four new cases

Madison, Wisconsin - May 21, 2009

The Wisconsin Supreme Court has voted to accept four new cases. The Court also acted to deny review in a number of cases. The case numbers, issues, and counties of origin are listed below. Court of Appeals’ opinions/certification memos available online for the newly accepted cases are hyperlinked.

2008AP810-CR  State v. Harris

In this criminal case, the Supreme Court has been asked to determine if certain comments made by a trial judge during a sentencing hearing are grounds for reversal or resentencing.

Some background:  Landray M. Harris, a 21-year-old African American male, was sentenced to two years initial confinement and three years extended supervision on charges of possessing cocaine with intent to deliver as party to a crime. Sentencing Judge Joseph R. Wall, Milwaukee County Circuit Court, made Harris eligible for boot camp and the earned release program after 12 months in prison.

During an exchange at the hearing, Harris informed the court that he stayed at home all day with his one-year-old daughter while the girl’s mother was working.

The court told Harris that he was appalled that Harris had no employment history, and that jobs were available.

“These are jobs that will pay benefits; paid vacation, medical care for your daughter. I’m sure your wife, already is providing that – not your wife, your baby mama is providing that, and he says he could spend more time with his daughter, that’s his other woman here,” Wall said, according to the transcript.

The court also commented during sentencing: “Where do you guys find these women, really, seriously? I’d say about every fourth man who comes in here unemployed, no education is with a woman who is working full time, going to school…”


The defendant unsuccessfully moved the circuit court for re-sentencing or sentencing modification on the ground that the sentencing court did not adequately consider mitigating factors and made inappropriate comments during the sentencing proceeding.

A different judge denied the motion, and Harris appealed. The Court of Appeals reversed and remanded.

The Court of Appeals concluded that although the circuit court “thoughtfully considered and weighed numerous appropriate factors,” resentencing was required “because of the racial overtones” that suggested the trial court was improperly considering the defendant’s race at sentencing.

In asking the Supreme Court to review the case, the state says the Court of Appeals recognized a new basis for vacating sentences, but failed to provide any clear guidance about the burden of proof or the standard of review for the new resentencing claim it recognized. Additionally, the state argues that under the Court of Appeals’ analysis, defendants will not have to establish that there was anything wrong with the circuit court’s analysis or with the sentence but will just have to show that a trial judge made comments that suggest something was wrong.

Harris contends the trial court’s remarks were improper and would warrant reversal by any reasonable standard.

A decision by the Supreme Court could develop and clarify the law, not just on use of terms such as “baby mama,” but more broadly on the trial courts comment during sentencing that arguably touch on topics such as race or gender.

2008AP921  E-L Enterprises v. Milw. Metro. Sewerage Dist.

This case examines questions of law and issues related to “takings” and inverse condemnation.

Some background: The Milwaukee Metropolitan Sewerage District, which provides wastewater treatment for 28 communities, contracted with Bowles Contracting Inc./Tomasini Contruction Inc. Joint Venture to construct the “cross-town 7” sewer in 1987-88.

The sewer ran under a private alley directly south of E-L Enterprises’ building, where the District had a construction easement. The sewer did not touch E-L’s land, and neither the District nor the joint venture entered E-L’s property on North 12th Street in Milwaukee, between the Menominee River and West St. Paul Avenue.

During construction, in the vicinity of E-L’s building, groundwater began to enter the sewer trench. The joint venture, which was responsible for any resulting damage to surrounding properties, pumped out the groundwater.

In 2004, E-L filed a lawsuit against the District and CNA Insurance Co.s, the insurer for the now-defunct joint venture The complaint alleged causes of action against the District for negligence, continuing nuisance and inverse condemnation and also claims against CNA for negligence and nuisance.

The circuit court dismissed E-L’s negligence and nuisance claims against the District, based on governmental immunity. CNA settled E-L’s negligence and nuisance claims against the joint venture in a confidential agreement. In its written order denying the District’s post-verdict motions, the trial court said the jury determined E-L should be compensated for the lost groundwater and accompanying loss in property value.

The District appealed, unsuccessfully arguing that as a matter of law, its diversion of groundwater was neither a “taking” nor an occupation of the property. The Court of Appeals noted that where there has been a taking but the entity with condemnation power fails to pay just compensation, the property owner may seek inverse condemnation under Wis. Stat. § 32.10.

The District has asked the Supreme Court to review its assertion that takings claims lie only when the government occupies private property or otherwise deprives the owner of all beneficial use of the entire property. Under the Court of Appeals’ decision, the District contends that the state and all other governmental entities that construct public works in the ground will be exposed to previously unrecognized takings liability for using groundwater and consequential damages resulting from that use.

E-L contends that the effect of the government’s action will determine whether or not there has been a taking. It says Wisconsin case law establishes a takings claim if the taking was foreseeable, even though it may have been unintended.

A decision by the Supreme Court will develop and clarify the law in this area and provide guidance for future cases.

2008AP1868  McConkey v. Van Hollen

In this certification, the District IV Court of Appeals asks the Supreme Court to review issues arising from a state constitutional amendment passed by voters on Nov. 7, 2006.  The ballot measure read, in part, “that only a marriage between one man and one woman shall be valid or recognized as a marriage in this state and that a legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.”

Some background: William McConkey filed suit in Dane County Circuit Court, seeking to have the marriage amendment declared invalid on multiple substantive and procedural grounds, including an allegation that it violated the single-subject rule set forth in Art. XII, Section 1 of the Wisconsin Constitution. 

McConkey asserts that the first part of the referendum question limiting marriage to only one man and one woman was a separate subject from the second part of the question addressing any similar legal status to marriage for unmarried individuals. McConkey argues that if the propositions had been put forth separately, a significant number of voters may have voted yes on one question and no on the other.

The circuit court held that the plaintiff lacked standing to challenge the substantive constitutionality of the marriage amendment, but further held that McConkey did have standing to challenge the amendment on the grounds it may violate the single-subject rule.

The circuit court ultimately held that the ballot question properly complied with the single-subject requirement because it “properly included two propositions that both related to the same subject matter and were designed to accomplish the same general purpose.”

McConkey appealed, contending the amendment should be null and void. Wisconsin Attorney General J.B. Van Hollen cross-appealed, arguing McConkey lacks standing because he personally did not suffer a real and direct, actual or threatened injury. McConkey has said he would have voted “no” on each question if they were listed separately.

A decision by the Supreme Court could clarify the proper formulation of the single-subject test and provide guidance on the purpose of a proposed amendment.

In certifying the case, the Supreme Court acquires jurisdiction of “the entire appeal, which includes all issues, not merely the issues certified or the issue for which the court accepts the certification.”

2008AP1385  Volvo Trucks v. Wausau Truck Center

In this review of an administrative law judge’s decision, the Supreme Court has been asked to clarify the definition of the statutory term “cure” and to determine whether a truck manufacturer unfairly canceled a dealer’s franchise agreement.

Some background: Wausau Truck Center (WTC), which has been a Volvo Truck dealer since 1988, was the only one of eight truck dealerships owned by JX Enterprises (JXE) to sell Volvo Trucks. JXE’s other dealers sold Peterbuilt and Ottawa Trucks. JXE has owned WTC since 1996.

In 2000 and 2001 some changes at Volvo led WTC to re-assess the value of its Volvo franchise and to develop a plan to sell or eliminate the franchise. As part of that plan, WTC formally changed its name to Wausau Truck Center d/b/a Peterbuilt Wisconsin-Wausau, dropped Volvo marketing efforts, stopped buying Volvo trucks for its inventory, and marketed Peterbuilt trucks to past Volvo customers.

In October 2001, the owner of WTC advised Volvo that WTC intended to sell its Volvo franchise and requested Volvo’s assistance with the sale. Volvo did not assist with a possible sale, but negotiated with WTC about purchasing the franchise. The parties were not able to reach agreement on the value of the Volvo inventory and the franchise’s good will.

By the end of 2002, WTC decided not to sell the Volvo franchise and began again to market Volvo trucks actively.

On May 20, 2003, Volvo sent WTC a notice of breach of its dealer agreement for 11 reasons. Volvo contends WTC’s attempts to “cure” the alleged violations of its franchise agreement were insufficient and came too late under terms of the agreement. On Jan. 30, 2004, Volvo served notice of termination of the dealer agreement.

WTC filed an administrative complaint seeking to stop the termination.  An administrative law judge (ALJ) and the Division of Hearings and Appeals (DHA) found that WTC had committed a material breach of the dealer agreement by implementing its plan to eliminate its Volvo dealership and failing to use its best efforts to promote and sell Volvo trucks and parts. However, the ALJ and the DHA found that there was no “just provocation,” which is required to justify a dealership termination, because WTC had cured any material breaches within a reasonable time after being notified of the breach.

Volvo asked the Marathon County Circuit Court to review, contending that DHA had used the wrong definition of cure. However, the circuit court and Court of Appeals upheld the administrative law judge’s decision.

The Court of Appeals noted that contrary to Volvo’s arguments, whether a party has cured its breach is a question of fact, not of law, and that there was no basis to overturn DHA’s factual findings.

In asking the Supreme Court to review the case, Volvo argues the term “cure” in Wis. Stat. § 218.0116 (1) (i) has never been defined by DHA or any court prior to this case. As a result, it contends that manufacturers and dealers are without guidance as to what a dealer must do to cure a breach and whether a manufacturer is entitled to terminate a motor vehicle dealership agreement. 

Review denied: The Supreme Court denied review in the following cases. Supreme Court review is a matter of judicial discretion, not of right, and will be granted only when special and important reasons are presented. As the state’s law-developing court, the Supreme Court exercises its discretion to consider for review only those cases that fit certain criteria, but these criteria neither control nor fully measure the Court’s discretion (see Wis. Stat. (rule) § 809.62).

Ashland
2009AP446  A to Z Plumbing & Htg. v. McDougall

Bayfield
2008AP2394-FT Co. of Bayfield v. Barnes

Brown
2007AP2728-CR State v. Salters

2008AP256  State v. Morris

2008AP588-CR State v. Ponce-Sanchez

2008AP1414  James P.H. v. Pollard

2009AP869-W Almond v. Pollard

Chippewa
2008AP1466  Kunsman v. Woodbeck

2009AP671/72-W Jacobson v. Thurmer

2009AP867-W Maldonado v. Cir. Ct. for Chippewa Co.

Dane
2008AP179  Goodson v. UW Hosp.

2008AP546  Town of Cross Plains v. Kitt’s Korner
Chief Justice Shirley S. Abrahamson concurs.

2008AP1714-CR State v. Templeton

2008AP1996  City of Madison v. Engel

2009AP861-W Haberg v. Pollard

Dodge
2008AP1039-CR State v. Mendoza-Medina

Eau Claire
2008AP106-CRNM State v. Murphy

Fond du Lac
2008AP1154-CR State v. Krumwiede

2008AP2735-CRNM State v. West

Green
2009AP683-W Smith v. Denucci

Green Lake
2008AP1275-CR State v. Vanbeek

Kenosha
2008AP316  Anita A. v. Cassandra B.

2008AP689-CR State v. Keesee

2008AP1447-CR State v. Hunt

La Crosse
2008AP1353  State v. Stahl

Marathon
2007AP2729/2008AP154 Skrzypchak v. Jenson

Marquette
2007AP2489-CR State v. Denson
Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley dissent.

Milwaukee
2005AP548-CRNM State.v McGowan

2006AP3139-CR State v. Jackson

2007AP1879-CR State v. McDowell

2007AP2090-CRNM State v. Vance

2007AP2313-CRNM State v. Ortiz

2007AP2428-CR State v. Collins

2007AP2585-CR State v. Key

2008AP92-CR  State v. Sanchez-Torres

2008AP109  City of Milwaukee v. MK Investments

2008AP159-CRNM State v. Muniz

2008AP629  State v. Wheeler

2008AP720  State v. Rogers

2008AP722/23 Jennifer H. v. Garry H./State v. Christopher L.S.

2008AP828-CR State v. Evans

2008AP837  State v. Soto

2008AP1147  Morters v. Barr

2008AP1203-CR State v. Andersen

2008AP1291-CRNM State v. Daniels

2008AP1320  State v. Bobby G.

2008AP1348/49-CRNM  State v. Morgan

2008AP1451-CR State v. Welton

2008AP1535-CR State v. Carter

2008AP1856  State v. Thornton

2008AP1863-CR State v. Storks

2008AP1949-CRNM State v. McKay

2008AP2542-CR State v. Olson

2008AP2565/66 State v. Lacole C.

2008AP2959  State v. Latrice A.H.

2009AP503-W Johnson v. Grams

2009AP519-W Alston v. COA

Monroe
2008AP2298-NM Donald B. v. Margaret B.

Outagamie
2008AP699  State v. Voigt

2008AP1080-CR State v. Ward

2008AP1790  State v. Ralph D.

2008AP2503  City of Appleton v. Brewer
Justice David T. Prosser, Jr. did not participate.

Pierce
2008AP1842-CR State v. Knudson

Racine
2007AP1355/1998 State v. Hamilton

2007AP2766  Sabol v. Village of Mt. Pleasant Bd. of Rev.

2008XX1101-CR State v. Tiggs

2008AP1582  Racine Co. HSD v. Bryant A.
Chief Justice Shirley S. Abrahamson and Justice David T. Prosser, Jr. dissent.

Sheboygan
2007AP2972  Moore v. Jenkins

2008AP1155-CR State v. Avina

Walworth
2007AP2190  Leontios v. PWS Lake Geneva Dev.

Washington
2008AP2134-CRNM State v. Austin

2008AP2636-W Tolonen v. Hompe
Justice Annette Kingsland Ziegler did not participate.

Waukesha
2008AP378  Treible-Kind v. Waukesha Co.

2008AP1099-CRNM State v. Williams

Waupaca
2007AP1250  Johnson v. Johnson
Justice David T. Prosser, Jr.  dissents.

Winnebago
2008AP949-CR State v. Wallace

2008AP1137-CR State v. Xiong
Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley dissent.

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