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2009

Supreme Court accepts seven new cases

Madison, Wisconsin - December 3, 2009

The Wisconsin Supreme Court has voted to accept seven 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.

2007AP900-CR  State v. Littlejohn
This case, which examines the search-incident-to-arrest doctrine as applied to a vehicle search, was held in abeyance until the U.S. Supreme Court decided Arizona v. Gant, 129 S. Ct. 1710 (2009). Gant holds that once an arrestee is safely in custody and unable to gain access to his vehicle, the search of the vehicle incident to arrest doctrine is no longer available. The state and public defender agree that Gant is a clear break in precedent and creates new rules that apply to Littlejohn. The Gant decision is viewed as limiting the broad powers that officers previously had to search a vehicle after arresting the vehicle’s occupant.  

Some background:  The underlying facts are essentially undisputed.  Two patrol officers followed Michael A. Littlejohn while he drove his car into a parking lot at his apartment building.  They pulled in behind him.  Littlejohn exited the car, locked it, and as he was walking away, the officers approached.  Upon learning that his driver's license had been revoked, they placed him under arrest and in handcuffs.  The officers secured him in the back of the patrol car.

Using his car key, the police began to search the passenger compartment, where they found a small bag containing what appeared to be marijuana and a straw with a white powdery substance that appeared to be cocaine.  In the car’s trunk, the officers found four gallon-sized bags containing what appeared to be additional marijuana, a plastic bag containing what appeared to be more cocaine, and a digital scale.  Based on the items found in the car, a search warrant was obtained, and additional drugs and a handgun were seized from Littlejohn's residence.

Littlejohn was charged with several crimes, including possession of marijuana and cocaine, both with intent to deliver.  The circuit court granted his suppression motion, concluding that the vehicle and trunk searches were illegal.  The circuit court declined to apply State v. Fry, 131 Wis. 2d 153, 388 N.W.2d 565 (1986), concluding the search was unlawful because Littlejohn was arrested when he was outside his vehicle.

The state appealed, and the Court of Appeals reversed. The Court of Appeals concluded that the search was valid incident to arrest under New York v. Belton, 453 U.S. 454 (1981) and Fry.

Littlejohn has asked the Supreme Court to review whether the warrantless search violated protections under both the Fourth Amendment to the U.S. Constitution and Art. I, § 11, of the Wisconsin Constitution, and whether the blanket rule adopted in Belton, and Thornton v. United States, 541 U.S. 615 (2004), violates the Fourth Amendment to the U.S. Constitution.

The Wisconsin Supreme Court is expected to decide this case in light of Gant. A decision could affect pending and future cases involving search-incident-to-arrest doctrine and vehicle searches. From Monroe County.

2007AP1894-CR  State v. Dearborn
As in State v. Littlejohn, 2007AP900-CR, this case examines the search-incident-to-arrest doctrine in light of the U.S. Supreme Court’s decision in Arizona v. Gant.  

Some background: David A. Dearborn asks the Wisconsin Supreme Court to review a July 24, 2008, published decision affirming his conviction for assaulting, or otherwise obstructing or resisting a conservation warden, and for possession of THC.  The Court of Appeals relied on its earlier decision in Littlejohn to affirm Dearborn’s conviction.

A DNR warden arrested Dearborn for operating a vehicle after revocation.  Dearborn resisted, fled, and was eventually subdued with the help of a state trooper.  Dearborn was handcuffed and placed in the trooper's squad car.  Once Dearborn was in the squad, the warden searched the passenger compartment of Dearborn's vehicle and found a container with a small amount of marijuana and drug paraphernalia.  Dearborn was charged with assaulting or otherwise resisting or obstructing a warden, possession of THC and possession of drug paraphernalia.  Dearborn filed a motion to suppress the evidence discovered in his vehicle.  His motion was denied.

Over Dearborn's objection, the court gave the instruction proposed by the state, which described the first element of the offense as assaulting, resisting or obstructing, and also defined the terms resisting and obstructing.  The instruction did not require the jury to unanimously agree as to whether Dearborn specifically resisted or obstructed.  The jury found Dearborn not guilty of possession of drug paraphernalia, but guilty of the other two charges.  Dearborn appealed, and the Court of Appeals affirmed.

Dearborn raised two issues on appeal:  (1) Whether his constitutional right to a unanimous verdict was violated by jury instructions that stated he may be found guilty of violating Wis. Stat. § 29.951 (assaulting or otherwise obstructing or resisting), if the jury found he assaulted or resisted or obstructed a conservation warden, rather than requiring the jury to unanimously agree on what he did; and (2) whether the circuit court erred in denying his motion to suppress the evidence found in the search of the passenger compartment. 

The Court of Appeals said that the threshold question in Dearborn's unanimity challenge was whether the violation of Wis. Stat. § 29.951 was a single offense with multiple modes of commission or were multiple offenses.

The Court of Appeals said that the Littlejohn case rejected the arguments that Dearborn made on appeal.  In State v. Fry, 131 Wis. 2d 153, 388 N.W.2d 565 (1986), the government was not required to show that the area searched was actually accessible to the arrestee.  See Littlejohn, at ¶11.  Rather, the inquiry was whether the vehicle's passenger compartment was within an area into which an arrestee might reach.

Dearborn asks the Supreme Court to review the issues raised on appeal. 

On the first issue, Dearborn argues that the jury instructions for § 961.41 provide separate instructions for "resisting" and "obstructing."  See Wis. JI--Criminal 1765, 1766.  He says that if the Court of Appeals’ reasoning is applied to § 961.41, the separate jury instructions are superfluous. 

Dearborn goes on to argue that under State v. Norman, 2003 WI 72, ¶58, 262 Wis. 2d 506, 664 N.W.2d 97, jury unanimity as to each offense is required to convict the accused of each offense.  See id. at ¶60.  He claims that his constitutional right was violated by the jury instruction in this case.

Dearborn states that Gant directly affects his second issue, and following Gant, no reasonable basis exists to support the court of appeals decision in his case. From Grant County.

2008AP266  State v. Robinson
This case examines "the good-faith exception" to the exclusionary rule and two other issues arising from the conviction of Terion Robinson, who pleaded guilty to possession with intent to deliver THC.  

Robinson asks the Supreme Court to review: (1) if the Court of Appeals' decision expands Wisconsin's "good-faith exception" to the exclusionary rule; (2) if a commitment order is a warrant for purpose of a lawful arrest; and (3) if reliance on an anonymous tip is sufficient to enter and arrest a subject at the home of a third party?

Some background: A Milwaukee Police officer testified that on Nov. 6, 2006, an anonymous tipster walked into a district police station and reported that Robinson was selling "narcotics, marijuana" from his apartment. The tipster also told the officer Robinson’s cell phone number. As a result, the officer "conducted a warrant check" which revealed, according to the officer, that Robinson had two open warrants – "[o]ne warrant was [for] a family offense, and another warrant was for, I believe, the possession of, delivery of a controlled substance." Police later learned the “warrant” actually was a commitment order, not signed by a judge, for nonpayment of a fine.

Police went to the apartment building, where a tenant let them in. They knocked several times and heard Robinson's cell phone ring when they dialed the number. Robinson also responded affirmatively when police called his name, police said. The officer said he kicked the door in when he said he heard footsteps running away from the door because he was concerned Robinson was planning on escaping or destroying evidence.

Once inside the apartment, police say they smelled burnt marijuana and saw marijuana on a coffee table and bags of marijuana in a cooler. Robinson was arrested and a search was conducted of the apartment. A large amount of currency also was found in the apartment, as well as paraphernalia used for weighing and packaging drugs.

The circuit court concluded that the officer had probable cause, a good faith belief that there was a felony arrest warrant pending and that Robinson resided at the apartment.

Robinson appealed, and the Court of Appeals affirmed the trial court. Robinson argued that the search was unlawful because police lacked a valid arrest warrant and that the arrest and resulting evidence obtained in the search should have been suppressed.

The Court of Appeals noted that under both the United States and Wisconsin constitutions, a warrantless search is per se unreasonable and evidence derived from it will be suppressed, subject to certain exceptions.  One of the exceptions, first articulated in United States v. Leon, 468 U.S. 897 (1984) is the good faith exception.  This exception was adopted by this court in State v. Eason, 2001 WI 98, 245 Wis. 2d 206, 629 N.W.2d 625 and holds that "where police officers act in objectively reasonable reliance upon the warrant, which had been issued by a detached and neutral magistrate, a good faith exception to the exclusionary rule applies."

The Court of Appeals said applying the logic of the good faith exception to the facts of this case yielded a similar outcome to that of Leon. The Court of Appeals affirmed the circuit court's finding of fact that the defendant lived in or was staying in the apartment, so he was not a third party but a resident.

The state contends the Court of Appeals’ decision was a reasonable and correct application of precedent and that the lower courts appropriately held that the defendant was in fact a resident at the apartment, not the third party.

A decision by the Supreme Court could clarify the good-faith exception and other issues presented here. From Milwaukee County.

2008AP1144  Borek Cranberry Marsh Inc. v. Jackson County
In this case, the Supreme Court is asked to examine Wis. Stat. § 706.10(3) and two issues raised by Jackson County:  1) whether sand extraction rights contained in a 1978 deed applied only to the property owner at the time, or if those rights were conveyed to heirs and assignees; and 2) if precedent dictates that deeds be interpreted in favor of public entities.

Some background:  Jackson County owns property adjacent to a cranberry farm owned by Borek Cranberry Marsh Inc. in the Town of Knapp. Borek received ownership of its property from the original shareholders of the corporation, Julius and Darlene Borek, who received their interest from Carl and Ann Nemitz in a deed dated May 8, 1978. That deed also granted an easement to Carl Nemitz providing water flowage rights and the right to remove sand from the adjacent county land for $500.

Seeking to make use of the sand removal right in its cranberry farming operation, Borek brought an action for a declaratory judgment to enforce the easement. The parties filed cross motions for summary judgment.

The circuit court granted summary judgment to the county, concluding that the right of sand removal in the deed was personal to Nimitz and therefore was not transferable to Borek. Borek appealed, and the Court of Appeals reversed. Jackson County now asks the Supreme Court if the deed conveyed the extraction rights, and if the deed should be interpreted in the county's favor according to Brody v. Long, 13 Wis. 2d 288, 108 N.W.2d 662 (1961).

Borek successfully argued before the Court of Appeals that the sand removal right was transferable because the sand removal right does not evince an express or necessarily implied intent to create a personal right that would overcome the presumption of transferability of conveyances established in WIS. STAT. § 706.10(3) (2007-08).

The county argues that § 706.10(3) does not require every reference to a party in every deed be interpreted to include heirs or assigns of that party. The county says that the only plausible reading of the deed's language makes the water rights assignable but not the sand rights. The county submits the Court of Appeals’ failure to give weight to Brody permits Borek to operate a business at the expense of a public resource. 

Borek says Brody's principles should not be applied and the Court of Appeals properly found that because there was no express declaration that the sand removal right was personal to Nemitz, the right to remove sand was transferable. From Jackson County.

2008AP1210  Washington Co. v. Washington Co. Depty. Sheriff’s Assoc.
This case examines whether staffing a courthouse weapons screening station is among a county sheriff's constitutionally protected powers, and whether that power can be limited to a collective bargaining agreement.

Some background: In the summer of 2005, Washington County was constructing a new justice center consolidating the county courts into one wing of the building.  Part of the process involved enhancing the security for the courthouse by having an entrance security station.  At a Public Safety Commission budgetary meeting, the Washington County Sheriff requested two sworn officers to be budgeted for 2006 to man the security screening station.  At that meeting, the commission raised questions about privatizing the security services for the new justice center's entrance. 

At a subsequent meeting, the sheriff proposed using special deputies for the screening services, which include a walk-through metal detector and an x-ray machine to look for weapons and items not permitted in the center.

Ultimately, it was decided to select the option of having special deputies man the security station. 

The Washington County Deputy Sheriff's Association union grieved this decision, claiming that it was subject to a contract between the union and Washington County.  Washington County filed the action for declaratory judgment.  In awarding judgment to Washington County, the circuit court relied in part on Wisconsin Prof'l Police Ass'n v. Dane County, 106 Wis. 2d 303, 305, 316 N.W.2d 656 (1982) (WPPA I) and Dunn County v. WERC, 2006 WI App 120, ¶14, 293 Wis. 2d 637, 718 N.W.2d 138, stating it must consider the particular job to determine whether it was the sheriff's responsibility at common law.

The circuit court noted that the sheriff had testified at his deposition that it was his final decision to use the special deputies.  The circuit court granted declaratory judgment to the county, finding that the dispute was not grievable and enjoining the deputy sheriff’s association from proceeding further. 

The Washington County Deputy Sheriff's Association appealed. The Court of Appeals reversed, concluding that staffing the x-ray and metal detector security screening station at the justice center entrance is not one of those "certain immemorial, principal, and important duties of the sheriff at common law that are peculiar to the office of sheriff and that characterize and distinguish the office."  Slip op. at ¶1, citing Kocken v. Wisconsin Council 40, 2007 WI 72, ¶39, 301 Wis. 2d 266, 732 N.W.2d 828.

The Court of Appeals concluded that no previous Wisconsin case addressed the question.

Washington County contends a compact body of law has developed in Wisconsin around the issue of what jobs fall within the constitutional duties of a county sheriff.  These duties, while not defined in the constitution, have been determined through decisions of the supreme and appellate courts dating back from 1870 through this case decided June 16, 2009. 

Washington County says that WPPA I and Dunn County determine that a job that provides security services to the court falls within the sheriff's constitutional duty of attendance on the courts.

The deputy sheriff’s association did not file a response to the county's petition for review filed with the Supreme Court.

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

2008AP2342   State v. Dwight Glen Jones
In this criminal case, the Supreme Court is asked to examine whether a defendant had a right to a new trial and at least a limited right to choice of counsel because he was allegedly unable to effectively communicate with his attorney due to hearing impairment.

Some background: Dwight Glen Jones was convicted of two counts of resisting or obstructing an officer, one count of operating a motor vehicle without the owner's consent, one count of theft of movable property, one count of criminal damage to property, one count of entry into a locked motor vehicle, and one count of driving with a revoked license, all as a habitual criminal.  Prior to the trial, the defendant had complained about what his appointed attorney was doing for him.

He wrote a number of letters to the attorney, the public defender's office, and the court, complaining he did not believe his lawyer was acting in his best interest and accusing the lawyer of not being truthful with him.

The defendant filed a motion for post-conviction relief arguing that he was entitled to a new trial because he was unable to effectively communicate with his attorney due to his hearing impairment.  The trial court denied the motion without a hearing.  The court of appeals reversed and remanded the matter to the trial court with instructions to hold an evidentiary hearing, giving the defendant sufficient leeway to prove his contention that he had an irresolvable breakdown in communications with his trial lawyer.  State v. Jones, 2007 WI App 248. 

After remand, the trial counsel described communicating with the defendant without a sign language interpreter and defendant's mother testified that she does not know sign language and that she communicates with her son using spoken English. The defendant testified and claimed he had difficulty understanding his attorney and that he couldn't trust counsel when counsel was talking without an interpreter.

The defendant explained that none of the 15 letters he wrote to trial counsel before the trial mentioned either an inability to understand his attorney or a need for an interpreter because his attorney had promised to bring an interpreter to future meetings. 

He also explained his letters to the trial court requesting new counsel did not mention the need for an interpreter because the court knew the defendant was deaf and would know that he would have problems with his attorney without an interpreter. 

In support of his motion to withdraw, the defense attorney told the court that the defendant had expressed frustration with him, although the lawyer said that he believed he had handled the case appropriately. 

In response to the trial court's question, the attorney said he did not read American Sign Language at all.  The defendant told the court he wanted a new lawyer. When asked why, the defendant responded directly, not through an interpreter, that he did not feel the lawyer was representing his best interests.  When the trial court indicated it was very reluctant to allow the attorney to withdraw because that would delay the case, the defendant responded in speech, "We have had too many disagreements.  . . .  I don't feel comfortable with him.  I don't trust him.  . . .  So I don't want him." 

The trial court responded this was not a sufficient reason.  The trial court denied the attorney's motion to withdraw, saying defendants are not entitled to counsel of their choice and the court had heard nothing to make it think the defendant was being deprived of his Sixth Amendment right to counsel.  The trial court made arrangements to have interpreters for the hearing impaired at the trial.  Three interpreters for the hearing impaired appeared at the trial, although only two were used for part of the trial.

The defendant filed a motion for post-conviction relief arguing that he was entitled to a new trial because he was unable to effectively communicate with his attorney due to his hearing impairment.  The trial court denied the motion without a hearing.  The Court of Appeals reversed and remanded the matter to the trial court with instructions to hold an evidentiary hearing, giving the defendant sufficient leeway to prove his contention that he had an irresolvable breakdown in communications with his trial lawyer.  State v. Jones, 2007 WI App 248. 

The circuit court concluded the defendant failed to prove a substantial breakdown in communications with his trial counsel.  Consequently, it denied the motion for a new trial.  The Court of Appeals affirmed.

Jones argues that the record contains direct evidence that he was having difficulty understanding his attorney and that he made numerous attempts to resolve that problem before the trial. A decision from the Supreme Court may resolve the significant constitutional question whether indigent defendants should have a limited right to choice of counsel.  From Milwaukee County.

2008AP3135  Society Ins. and James Meyer, Inc v. LIRC
This certification asks the Supreme Court to review if the Legislature violated the constitutional rights of employers and their worker’s compensation carriers by retroactively shifting the burden of ongoing disability compensation from the state to the insurer as provided in Wis Stat. §§ 102.17(4) and 102.66(1), amended effective April 1, 2006.  

Some background: On June 25, 1982, Gary Liska sustained a work-related injury to his right leg that required amputation below the knee.  Society Insurance paid temporary total disability benefits intermittently from June 25, 1982, through June 12, 1990.  It also paid permanent partial disability benefits for each week that Liska did not receive temporary disability.  Society paid the permanent disability benefits in advance on Feb. 18, 1983.

According to the worker's compensation law as it read at the time, specifically the 12-year statute of limitations, Society’s liability for Liska’s medical claims would have expired in 2002, and subsequent payments would have been paid from the Work Injury Supplemental Benefit Fund (WISBF).  See Wis. Stat. § 102.17(4) (2003-04). [2] 

On Feb. 25, 2004, Liska filed a claim for additional medical expenses in excess of $14,000.  An administrative law judge (ALJ) determined that Society was liable for the ongoing expenses in light of the revised statute of limitations, which shifts liability for expenses accruing after 12 years to the worker’s compensation insurer unless those expenses derive from an "occupational disease."  See Wis. Stat. § 102.17(4). [3] 

Society appealed the ALJ decision to the Labor and Industry Review Commission (LIRC), which affirmed and adopted the ALJ decision as its own. Society then sought review in the circuit court, arguing that retroactive application of the statute of limitations was unconstitutional.  The circuit court agreed, holding that retroactive application violates due process and the contract clause.  WISBF appealed, leading to this certification from the District II Court of Appeals. From Fond du Lac County.

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).

Brown
2008AP1701-CR State v. Ferguson
2008AP2069  Brown Co. Sheriff’s Dept. v. Brown Co.
2009AP2408/09-W al Ghashryah v. Circ. Ct. Brown Co. - Justice N. Patrick Crooks did not participate.

Calumet
2007AP2109  Ecker Bros. v. Calumet Co.

Dane
2007AP431 Green v. Berge
2007AP2369-CR State v. Mey
2007AP2610-CR State v. Adeyanju
2007AP2924-CR State v. Cuesta
2008AP935-CR State v. Darby - Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley dissent.
2008AP2009  WI Dairyland Fudge v. Transform
2008AP2387  Combs v. Voigt
2009AP2179-W Obriecht v. Cir. Ct. Dane Co.

Door
2009AP437  Fitzgerald Mahnoma Trust v. Town of Gibraltar Board of Review

Forest
2008AP2429  State v. Lewis

Grant
2008AP2507-CR State v. Salisbury
2008AP3033  Jacobs v. Raemisch

Kenosha
2007AP2452-CR State v. Kellam
2007AP2967  Tocholke v. Tocholke

Manitowoc
2008AP2710-12 Manitowoc Co. HSD v. Jacob G.
2009AP1662-W Olm v. Smith

Milwaukee
2007AP2796-CR State v. Bach
2008AP167 Vegas v. City of Milwaukee
2008AP904 Coleman v. Graham
2008AP1238-CR State v. Gee
2008AP1269  State v. Harrell
2008AP1858-CR State v. Hard
2008AP2107-CR State v. Robinson
2008AP2156  Konkel v. Acuity - Justice Patience Drake Roggensack dissents.
2008AP2290  Milw. Deputy Sheriff’s v. Clarke, Jr.
2008AP2513-CR State v. Hurst
2008AP2745-CR State v. Groves
2008AP3167-CRNM State v. Oliver
2009AP79-CRNM State v. Cowans
2009AP366  Patrick v. Graham
2009AP998-W Harris v. Boatwright
2009AP2172-W Williams v. Thurmer
2009AP2208-W Avery v. Cir. Ct. Milw. Co.
2009AP2346-W Jones v. Cir. Ct. Milw. Co.
2009AP2579-W Jackson v. Grams

Monroe
2009AP499-CRNM State v. Tubbs

Outagamie
2008AP1452-CR State v. Hoffman

Racine
2008AP2459  State v. Rogers 

Sauk
2008AP1583  Maldonado v. Schwarz
2009AP2550-OA Frier v. Watters

Walworth
2008AP1937  Torstenson v. Graham

Washington
2009AP1251-CRNM State v. Gabelbauer - Justice Annette Kingsland Ziegler did not participate.

Waukesha
2008AP2844  Ybarra v. Majewski
2009AP1349-CRNM State v. Ionescu

Wood
2009AP1464  American Family Mut. Ins. v. Staab

Contact:
Tom Sheehan
Court Information Officer
(608) 261-6640

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