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2008

Supreme Court accepts 17 new cases

Madison, Wisconsin - September 26, 2008

The Wisconsin Supreme Court has voted to accept 17 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.

2007AP476/AP751 PRN Associates and PGN Associates (Prism) v. State Dept. of Admin.
These consolidated cases arise from the procurement process for the Kenilworth building redevelopment project at UW-Milwaukee.

Some background: In October 2002, the University of Wisconsin System and UW-Milwaukee issued a request for proposals (RFP) from private contractors to renovate the building. Prism submitted the winning response.  Before the state could begin contract negotiations with Prism, the UW System and the state building commission both had to approve Prism's response. The UW System gave its approval. UW-Milwaukee filed a request for state building commission approval, but the request was withdrawn before final action was taken when it became apparent there was no support for approval by the state building commission. 

Prism unsuccessfully protested and appealed the decision to withdraw the request to the UW System. After UW-Milwaukee withdrew its request for state building commission approval, the building commission ordered that a second RFP be issued for the project. Prism submitted another response, but another contractor, WEAS Development, submitted the winning proposal.  Both the UW System and the state Building Commission approved the WEAS proposal. On Feb. 3, 2005, the Wisconsin Department of Administration (DOA) sent a letter to Prism, advising that the contract would be awarded to WEAS. Prism protested the decision to award the contract to WEAS and appealed the denial of the protest to the DOA. The appeal was denied on June 6, 2005.

On July 6, 2005 Prism filed a petition for judicial review and a complaint for declaratory judgment in Ozaukee County Circuit Court.  The declaratory judgment action was transferred to Dane County.  The decision in that case is the subject of appeal in Case No. 2007AP751. The state filed a motion to dismiss the Ozaukee County case.  On Sept. 21, 2006, the circuit court found Prism's claims were moot because Prism never sought an injunction that would have kept the project from going forward with WEAS and ordered the case dismissed.  The dismissal order was entered on Oct. 17, 2006. The Dane County Circuit Court dismissed the declaratory judgment action against the DOA based on sovereign immunity grounds because the state did not consent to the suit.

Prism asks the Supreme Court to review the following three questions:
- Is the sole remedy of a proposer, wronged by the state in a state procurement, an injunction against letting the contract?
- Can the state be estopped from arguing that an injunction is the sole remedy of a wronged proposer?
- Is the claim of a wronged proposer, in a procurement by the state, barred by sovereign immunity or does it fall within the takings exception or the waiver (§ 775.01) exception? 

The state says the only issue presented in the Ozaukee County case is whether the matter is moot because Prism never sought injunctive relief. The state also says the Dane County Circuit Court correctly held that that action was barred by sovereign immunity. From Ozaukee County.

2007AP619 Bubb v. Brusky
The issue raised in this medical malpractice case is whether the trial court committed reversible error when it precluded the jury from considering an informed consent claim by plaintiffs Richard and Marjorie Bubb.

The Bubbs seek review of a Court of Appeals' decision affirming a circuit court judgment dismissing their claims after a jury verdict finding that Drs. William Brusky and Xian Feng Gu were not negligent in their care and treatment of Richard Bubb. 

Some background: On the evening of Oct. 24, 2001, Richard Bubb was taken by ambulance to St. Agnes Hospital after he fell to the floor while having dinner. Dr. Brusky was on duty in the emergency department and reviewed Richard's symptoms and ordered various tests including a CT scan, EKG, and blood test.

Richard's symptoms began to diminish while he was at the hospital.  After the tests were done, Richard said he was feeling better and wanted to go home.  Based on the tests performed and the fact that Richard's symptoms were resolving, Dr. Brusky concluded Richard had experienced a transient ischemic attack, or TIA.  The primary cause of a TIA is atherosclerotic disease, a buildup of cholesterol plaque that is often called hardening of the arteries which can diminish the heart's capacity to provide blood to the brain.  After consulting with Dr. Gu, a neurologist, it was agreed Richard would see Dr. Gu for a follow up. However, before the follow-up appointment, Richard was taken to the emergency room at St. Joseph’s Hospital in West Bend because he suffered a stroke. The doctors there discovered that Richard's right carotid artery showed a 90 percent blockage.

The plaintiffs filed suit, claiming that the negligence of Drs. Brusky and Gu caused Richard serious and permanent injuries to his left arm, left leg, and the left side of his face. 

The jury returned a verdict in favor of Drs. Brusky and Gu, determining that neither doctor was negligent in his care and treatment of Richard.  The trial court entered judgment dismissing the plaintiffs' claims and awarding costs to the defendants.  The plaintiffs moved for a new trial arguing, among other things, that the trial court had improperly dismissed the informed consent claim and specifically challenging the decision to omit the informed consent jury instruction and special verdict question.  The circuit court denied the motion.  The plaintiffs appealed, and the Court of Appeals affirmed.

A decision from the Supreme Court would further develop and clarify the law on informed consent issues which are likely to recur. From Fond du Lac County. Justice Annette Kingsland Ziegler did not participate.

2007AP1849-CR State v. Gajewski
In this third-degree sexual assault case, the Supreme Court has been asked to review how the law should have been applied to claims of ineffective assistance of counsel by the defendant, Jordan L. Gajewski.

Some background: A jury found Gajewski guilty of third-degree sexual assault. The female victim testified that after attending a party on May 8, 2005, she spent the night at a friend's house, as did the defendant, a high-school classmate the victim said she did not know well.

The victim testified at trial that during the night she woke up to find the defendant kissing her and removing her clothing.  She said he then had intercourse with her.  She testified that she told the defendant to stop and that he eventually did stop and went back to sleep.  Two other people were sleeping in the same room at the time, and two other friends of the victim were in the house.  None of the other people awakened, and the victim did not yell for help.  The victim reported the assault on May 18, 2005.

Sentence was withheld and Gajewski was ordered to serve five years probation with 12 months in jail, with Huber privileges, as a condition.  The sentence was stayed pending appeal. The defendant filed a post-conviction motion alleging newly discovered evidence and ineffective assistance of counsel.  The newly discovered evidence consisted of a witness saying that he overheard the victim making a statement that "it never happened; I just did it to piss him off" the day after the trial ended.  The circuit court concluded the comment the witness overheard was so vague that there was no reasonable probability that a different result would be reached at trial if the jury had heard the statement.

With respect to the ineffective assistance of counsel claim, the postconviction court said it agreed with the state's position that the defendant was bringing up information post-trial that he never conveyed to his attorney.  The court said it did not find counsel's performance to be outside the range of the professionally competent assistance.  The defendant appealed, and the Court of Appeals reversed and remanded.

A decision from the Supreme Court would help to develop and clarify the law on how ineffective assistance of counsel issues are to be analyzed. From Marathon County.

2007AP1985 Ho-Chunk Nation v. Wisconsin Department of Revenue
The Ho-Chunk Nation asks the Supreme Court to review denial of a claim for a refund of cigarette taxes under § 139.323, Stats., with respect to cigarette sales on the DeJope property in Madison.

In reliance on § 139.323, the nation filed a claim for a refund of 70 percent of the taxes paid on cigarette sales by the nation on the Dejope property during certain periods in 2003 and 2004. 

The Department of Revenue denied the claim on the ground that the property was not "designated . . . trust land on or before Jan. 1, 1983."  The nation filed a petition for review with the Tax Appeals Commission (the commission), arguing that the property was "designated . . . trust land" in August of 1982, when the Secretary of the Interior's authorized representative approved the purchase of the land in trust. 

The commission affirmed the department's decision on summary judgment, agreeing with the department that the property was not "designated . . . trust land" until the United States held title, and that did not occur until an authorized representative of the United States approved the deed on Jan. 31, 1983.  The commission denied the nation's request for a rehearing. The Court of Appeals affirmed a circuit court order, which affirmed the Commission.

The Ho-Chunk Nation asks the Supreme Court to review if ambiguities in the statute should be construed in favor of the tribes under the law, and how the timing of conveyance of land to trust affects the possible tax refund under the statute. From Dane County.

2008AP1913-CQ   Tammi v. Porsche 
This certification from the U.S. District Court for the 7th Circuit asks the Wisconsin Supreme Court to clarify issues related to the state’s “lemon law.” A decision could impact the sale of motor vehicles throughout Wisconsin, for both consumers and manufacturers.

Some background: On May 30, 2003, the plaintiff, Bruce Tammi, leased a 2003 Porsche 911 Turbo.  The lease was through US Bank for a 36-month term and required an initial payment of $1999.85 and 35 subsequent monthly payments of $1912.35, for a total amount of lease payments of $68,844.50.  The lease provided a purchase option at the end of the lease term for $64,344.10 plus tax and imposed a $395 termination fee if the lessee elected not to purchase the car.
The plaintiff said he had taken the car in for repairs to an automatically deploying spoiler at least four times during the first year under warranty, but the spoiler didn’t work properly. The problem set off warning lights and alarms inside the vehicle.

On Oct. 14, 2004, the plaintiff filed a complaint in Wisconsin state court alleging a violation by Porsche of the Wisconsin Lemon Law.  Porsche removed the case to federal court on the basis of diversity jurisdiction. 

During the course of the lease, the plaintiff paid the initial payment followed by 21 scheduled monthly payments, some of which were paid after he had filed suit.  As the litigation continued and before the lease expired, the plaintiff purchased the car in December 2005 with a final payment of $75,621.88, despite the problems that persisted with the rear spoiler.  Thus, the plaintiff bought a vehicle that he claimed was a lemon.

The 7th Circuit has certified the following issues:
1) When a consumer defined in Wisconsin Statute § 218.0171(1)(b)4 brings an action pursuant to subsection (7), if that consumer, after making his Lemon Law demand, then exercises an option to purchase and buys the vehicle as provided in the lease, is the consumer then entitled to recover the amount of the purchase price?
2) If the consumer defined in Wisconsin Statute § 218.0171(1)(b)4 is entitled to recover the vehicle purchase price when he exercises the purchase option provided in the lease, does the purchase amount qualify as pecuniary loss subject to the doubling provision in subsection (7)?
3) If the answers to questions 1 and 2 are in the affirmative, is the consumer permitted to keep the purchased vehicle in addition to the receipt of the damage award or must the vehicle be returned to the manufacturer?
4) Is a damage award under subsection (7) subject to a reduction for reasonable use of the vehicle?

The 7th Circuit says Wisconsin law, both case and statutory, is silent on the four questions certified.  It says guidance from the Supreme Court would be most helpful since resolution of the issues presented here implicate important policy considerations. 

2006AP2866 Post 2874 VFW v. Milw. Redev. Authority
This extensively litigated case arises from the condemnation of an abandoned 11-story building at 2601 West Wisconsin Ave. in Milwaukee and the application of the “unit rule” to value the property. The unit rule requires that real estate be valued in respect to its gross value as a single entity as if there was only one owner. (4-13 Nichols, Eminent Domain § 13.01[16] § 13-28).

Some background: Briefly, in 1942, the VFW owned the building located on the property and used it as its post headquarters. In 1961, the VFW conveyed the land and improvements to Towne Metropolitan, Inc., which constructed an 11-story hotel.  In exchange for the conveyance, the VFW obtained a 99-year lease, with the option to renew for another 99 years.  Under the leasehold, the VFW paid $1.00 annually and the lessor would pay all real estate taxes, all utilities, and cover maintenance on the property.

The property operated as a Hilton Hotel and then as a Holiday Inn.  In 1986, Towne sold the property to Marquette University, which used it as a dormitory.  In 1994, the property was sold to the Maharishi Vedic University for $600,000.  Both sales required the new owners to assume the responsibility to comply with the VFW’s lease.  The Maharishi never occupied the building after its acquisition. 

The Redevelopment Authority of the City of Milwaukee (RACM) eventually condemned the abandoned building.  As compensation, RACM offered Maharishi and the VFW $440,000 for the property.  In December 2001, a circuit court divided the $440,000, allocating $300,000 to the VFW for the value of its leasehold interest.  The VFW appealed the adequacy of this award to the Condemnation Commission, which requested instruction from the trial court as to how to value the property.  The trial court instructed the Commission to value the property using the unit rule. The VFW petitioned for leave to appeal this determination.  The Court of Appeals granted this request and ruled that the unit rule should be used but declined to address questions concerning the constitutionality of the application of the rule.  See City of Milwaukee Redev. Auth. v. Veterans of Foreign Wars Post 2874, 2003 WI App 225, 267 Wis. 2d 960, 671 N.W.2d 717, unpublished slip op. (Sept. 30, 2003). 

In December 2004, the Condemnation Commission found the value of the property to be $15,000 less than the initial award.  The VFW appealed this conclusion and asked the trial court to declare the application of the unit rule in this case unconstitutional.  The trial court denied the motion and the case was tried to a jury on the question of the value of the property.  The jury returned a verdict that the hotel building at 2601 West Wisconsin Avenue had no value. Judgment was then entered against the VFW in the amount of $387,348.24, which included the $300,000 it had already been paid, plus accumulated interest and costs. 

VFW challenged the constitutionality of this decision.  The circuit court dismissed the claim, ruling that the decision was consistent with the application of the unit rule.   VFW appealed.  The Court of Appeals reversed in a published decision, ruling that the application of the unit rule under the unique circumstances presented in this case was unconstitutional.
The RACM seeks Supreme Court review of this decision.  RACM asserts that the Court of Appeals’ decision violates its due process rights insofar as RACM complied with what the court had previously directed them to do and that the circuit court order was consistent with earlier litigation involving this property.  RACM describes the court of appeals’ decision as creating a “new doctrine – a first-ever leasehold exception to the unit rule.”  RACM also VFW should have been precluded from challenging the unit rule’s constitutionality at this stage in the litigation.

VFW opposes review, primarily on the grounds that this is an unusual fact scenario unlikely to recur. Several non-party amicus briefs have been filed advocating Supreme Court review.  The State of Wisconsin asserts that the published Court of Appeals’ decision “improperly expands” the concept of “just compensation” and contends that the decision affects “all Wisconsin condemnors, every associated public project, and all tenants with long-term leases in their path.” From Milwaukee County.

2006AP2910 Behrendt v. Gulf Underwriters
This case derives from a 2004 accident in which a fabricated metal tank used to collect oil at an oil change business exploded, injuring the petitioner, Kenneth Behrendt, an employee of the oil change business. Behrendt filed a number of claims against individuals, companies and insurers who were involved in making the vessel. 

Here, Behrendt seeks review of an unpublished Court of Appeals' decision that affirmed an order granting summary judgment to two of the defendants, Silvan Industries, Inc., and its insurer, Gulf Underwriters Insurance Co., thereby dismissing Behrendt’s strict liability and general negligence claims against Silvan Industries.  On appeal and in this petition for review Behrendt asserts that summary judgment in favor of Silvan was improper because factual issues exist and certain questions relating to negligence liability should be decided by a jury. 

Some Background: Silvan manufactures tanks designed to be used under pressure.  Silvan has a policy that employees can use scrap metal and company tools to make items for personal use, such as Christmas tree stands, barbecue grates, and plant stands. Its policy prohibits employees from making pressurized tanks for personal use.

Around 1994, Silvan employee, James Fisher, used this policy and fabricated a large tank for his son-in-law, Dan Linczeski.  Linczeski owned Dan’s Faster Lube, an oil change business.  He had asked Fisher for a tank to collect drained oil.  Fisher and fellow employee/welder Rex Sommers helped make the tank.  Once complete, the tank had more holes in it than were needed, so Linczeski asked Peter Harding (not a Silvan employee) to make some modifications to the tank.  Once the modifications were made, Linczeski used air pressure to force collected oil from the tank into other holding tanks.  The Court of Appeals decision noted that there was “considerable dispute” in the record as to whether Fisher knew Linczeski wanted a pressure vessel, whether Linczeski told Harding he planned to use air pressure with the tank, whether Harding advised against it, etc.  What is undisputed is that the tank was not designed to be used under pressure. 

In 2004, ten years after its manufacture, the tank exploded.  Behrendt, an employee of Linczeski, was injured.  After the explosion causing his injuries, Behrendt sued Fisher, Silvan, Harding, and Harding’s employer, along with various insurance companies, alleging negligence against all the parties and further alleging strict liability and vicarious liability against Silvan. 

Fisher, Silvan, Harding, and Harding’s employer all moved for summary judgment.  Behrendt agreed to dismiss the claims against Harding’s employer.  The court denied Fisher’s and Harding’s motions, but granted Silvan’s. 

The circuit court concluded there could be no strict liability against Silvan because Silvan did not manufacture the tank.  It further concluded that even if Silvan were negligent, the negligence was too remote from the injury and noted that public policy considerations precluded any award. 

Behrendt appealed the portion of the summary judgment order dismissing the negligence claims against Silvan. The strict liability dismissal was not at issue on appeal. The Court of Appeals affirmed. Behrendt asks the Supreme Court to review two questions:
- Does Silvan owe a duty under Wisconsin law and pursuant to Pfeifer v. Standard Gateway Theater, Inc. 262 Wis. 229, 55 N.W.2d 29 (1952) to Behrendt under the pleadings and facts in this negligence case?
- Is Sylvin entitled to summary judgment under Wisconsin negligence law for (1) its own negligence regarding its program for allowing employees to use Sylvan materials and equipment to fabricate items; and (2) vicarious liability for the negligence of its employee, Fischer?
From Marinette County.

2006AP2933 Horst v. Deere & Co. 
This product liability action was previously before the Supreme Court on a petition to bypass, which the Court denied.

The petitioners, Jonathan Horst, by his Guardian ad Litem, and Kara Horst, seek review of a published Court of Appeals’ decision that affirmed a circuit court order dismissing their personal injury claim and their request for a new trial against Deere & Company.

Essentially, the question presented in this is whether Wisconsin law includes a “bystander contemplation” test as part of its strict products liability jurisprudence. 

Some background: In May 2004, while mowing the lawn with his 1999 Deere LT160 riding lawn mower, Michael Horst intentionally activated the manual override button so that he could mow his lawn "in reverse." He then accidentally backed over his two-year-old son, Jonathan, resulting in severe injuries requiring amputation of the child’s feet.

The Horsts filed suit against the manufacturer claiming negligence and strict liability and seeking punitive damages.  They alleged that the manufacturer breached an independent duty it owed to third-party bystanders by permitting such mowers to even have an “override” feature that allows “back-up” mowing. Deere moved for summary judgment on grounds that the “consumer contemplation test” barred Jonathan’s strict liability claim.  Deere also argued that the negligence claim and the claim for punitive damages failed as a matter of law.

The jury found for the defendants.  The Horsts sought a new trial and, when this was denied, appealed.  On appeal, the Horsts argued that the circuit court gave incorrect jury instructions. Essentially, they assert that the instructions given to the jury foreclosed the jury from deciding whether Deere’s tractor design resulted in a product that was unreasonably dangerous to an innocent bystander like Jonathan.  They contend this resulted in instructions that are not consistent with Wisconsin law.  As noted, the Court of Appeals affirmed and this petition followed.

Horst asks the Supreme Court to review if the Court of Appeals misinterprets Howes [v. Hansen, 56 Wis. 2d 247, 201 N.W.2d 825 (1972)] and Shawver [v. Roberts Corp., 90 Wis. 2d 672, 280 N.W.2d 226 (1979)] by holding that a manufacturers’ § 402A duty to design a reasonably safe product as to bystanders is satisfied if the product is not unreasonably dangerous to users? From Washington County. Justice Annette Kingsland Ziegler did not participate.

2007AP385 Umansky v. ABC Ins.
This case, stemming from a wrongful death action, asks the Supreme Court to examine the extent of immunity provided to state officers under certain circumstances.

Some background: On Nov. 23, 2003, Richard Umansky, working as a cameraman for ABC Sports Broadcasting at Camp Randall, fell to his death from a platform unprotected by a railing. 

Umansky’s parents filed a wrongful death complaint against Barry Fox, who served as the Director of Facilities at UW-Madison, who is alleged to have been responsible for compliance with safety regulations at Camp Randall Stadium. 

The trial court concluded that Fox was entitled to public officer immunity and entered a summary judgment dismissing the complaint. In a published decision, the Court of Appeals reversed and remanded for fact finding as to the applicability of the ministerial duty exception. The state asks the Supreme Court to review the nature of the duty imposed by state safety statutes and regulations.

The plaintiffs argue that Wisconsin law is quite clear that a "state officer or employee is not shielded from liability for the negligent performance of a purely ministerial duty."  See Meyers v. Schultz, 2004 WI App 234, ¶12, 277 Wis. 2d 845, 690 N.W.2d 873.  On the other hand, the state claims Fox's duties, if any, were discretionary. 

A decision by the Supreme Court could clarify how immunity may apply to some state officers under certain circumstances. From Dane County.

2007AP1160 Milw. Journal Sentinel v. Wisc. Dept. of Admin.
This is a certification from the District IV Court of Appeals, addressing Wis. Stat. § 19.37(1)(a), Wisconsin's public record statute.

Some background: The Milwaukee Journal Sentinel and Lakeland Times newspapers seek to compel access to state employee records in the possession of the Wisconsin Department of Administration and the Wisconsin Department of Natural Resources. The state agencies provided the requested documents but redacted the names of specific employees pursuant to a collective bargaining agreement.  The circuit court granted the plaintiffs' motions for summary judgment requiring the release of records.  The Wisconsin State Employees Union, which intervened, appealed.  The office of the State Employment Relations filed a non-party brief supporting the union's arguments. 

The newspapers argue that any change to the open records law had to be specifically identified in ratifying the bill or companion bill.  They claim that the legislature violated Wis. Const. art. IV, Sec. 17, when it ratified the contract without passing bills specifically identifying changes in the law as required by § 111.92. 

The certification asks the Supreme Court to address two issues:
- Whether courts have jurisdiction to review the process the Legislature used to amend the open records law by ratifying a collective bargaining agreement; and
if so, whether the legislative process was effective to bring about a change in the law. From Dane County.

2007AP1198 Kenosha Professional Firefighters v. City of Kenosha
This case, which involves an attempt to recovery attorney fees, began as an open-records request in December 2005 and now contemplates when an order is considered final for the purposes of recovering attorney fees.

Some background: The Kenosha Professional Firefighters had asked the city and its personnel director to disclose personnel records of fire chiefs and other officials.  Among the materials sought were copies of the officials' written applications for their positions and their "matrix scores." 

Receiving an unsatisfactory response, in January 2006, the firefighters filed a petition for a preemptory writ of mandamus seeking disclosure of these items. In an amended answer, the city said that matrix scores had previously been destroyed by the contractor, and the contractor later provided an affidavit, attesting to the destruction.

In March 2006, at the hearing on the mandamus petition, the city conceded that if the matrix scores had been in its possession they would have been subject to disclosure but because the scores had been destroyed, the matter was moot.

On Aug. 4, 2006, the firefighters filed an application for an award of statutory damages, attorney fees and costs, in an amount exceeding $15,000. It was not until Oct. 26, 2006 and Nov. 9, 2006, after briefing on the fee application had been completed, that the city furnished the contractor's affidavit, which satisfied the firefighters that the matrix scores had in fact been destroyed and no record of them existed.

In a Jan. 19, 2007, decision, the circuit court held that the fees sought by the firefighters were reasonable, but that the application had been untimely filed.  It concluded that the April 2006 writ was the final document from which an appeal could have been taken and therefore the fee application should have been filed within 30 days.  See Wis. Stat. § 806.06(4).  The circuit court said that the statute requires a successful party causing the judgment to be entered to perfect the judgment within 30 days of entry or forfeit the costs.  A judgment is perfected by the taxation of costs and the insertion of that amount into the judgment.  See Wis. Stat. § 806.06(1)(c).  The circuit court said that the clerk taxes the costs pursuant to Wis. Stat. § 814.10(1), when application to do so is made by the prevailing party.  It noted that under § 814.04, attorney fees are included as an "item of cost."

The circuit court rejected the firefighters' argument that no final judgment had been entered and therefore no time period had begun to run with respect to the taxation of costs.  It said if that were true, there would be no reason for the application of attorney fees and costs being made.

The Court of Appeals noted that since the preemptory writ granted the firefighters' requests, it was not an adverse ruling subject to an appeal by the firefighters.  See Ford Motor Credit Co. v. Mills, 142 Wis. 2d 215, 217, 418 N.W.2d 14 (Ct. App. 1987).
 
The Court of Appeals said that a judgment is final even though a claim for attorney fees under a fee shifting statute remains unresolved because the taxation of costs is akin to the mere execution of the decision related to but separate from the underlying action.

A decision by the Supreme Court could clarify the concept of finality for the purposes of appeal and recovering fees. From Kenosha County.

2007AP2767-CR State v. Wood
This certification from the District IV Court of Appeals could affect the rights of people who may refuse medication but are not competent to make decisions involving medication.

Some background: John A. Wood was committed to the state Department of Health and Family Services in 1999 under Wis. Stat. § 971.17, after being found not guilty by reason of mental disease or defect following a trial on charges of having non-consensual sexual contact with a resident of a hospital in 1998.  Wood was remanded to the care of the Department for a period not to exceed 160 months.  He has been confined at Mendota Mental Health Institute ever since and has unsuccessfully petitioned for supervised release on a number of occasions.

Wood had previously been diagnosed with paranoid schizophrenia. In 1978, he was found not guilty of second-degree homicide by reason of mental disease and committed until his conditional release in 1991.

In 2006, Mendota moved for an order finding Wood incompetent to refuse medication and authorizing the involuntary administration of medication.  The circuit court issued the order following a hearing, without determining whether Wood was a danger to himself or others and without making any provision for periodic review of the medication order. 

Wood filed a postconviction motion challenging the constitutionality of the involuntary medication statute for criminally committed persons, § 971.17(3)(c). Wood's postconviction motion was denied and Wood appealed. 

The certification involves the interpretation of  § 971.17(3)(c) and the application of Wis. Stat. § 971.16(3), which provides the standard to determine whether a criminally committed person is not competent to refuse medication or treatment.  The court of appeals said that these statutes do not require any finding with respect to dangerousness and do not contain any provision for automatic review of medication orders.

A decision by the Supreme Court could clarify law as it relates to people found not guilty by reason of mental defect who may be in need of medication and not competent to make medication decisions. From La Crosse County.

2006AP3075 Nedvidek v. Kuipers
This case concerns a lengthy dispute involving the city of La Crosse, University of Wisconsin System and military veterans groups over the naming of a football field, stadium and surrounding grounds in La Crosse.

The Supreme Court has been asked to review, among other things, whether two veterans, Rudy Nedvidek, Commander of VFW Post 1530 and Tom Hundt, president of Vietnam Era Veterans have standing to sue former UW-La Crosse Chancellor Judith L. Kuipers and others.

Some background: The football field was created on land that was part of what was formerly known as the "fairgrounds."  The property was owned by the City of La Crosse.  In October 1945, the La Crosse Common Council resolved to establish a memorial recreation center that was to honor the area residents who had served in this country's military.  The football field and the immediately surrounding area became known as Memorial Field.  When a stadium was built next to the football field, it became known as Veterans Memorial Stadium.

In 1987, the city proposed to transfer the property to the UW System to become part of the UW-La Crosse. The city's resolution and proposal to the UW System sought a condition that the public would continue to be allowed to use the facility as it had been doing.  The UW Board of Regents agreed to accept the property via quit claim deed for $1 and then to expend money to repair the stadium, but required that any deed be without restrictions.  The city's 1988 deed nonetheless stated that the conveyance was being made upon the express condition that the public could continue to use the field and facilities.  The deed, however, contained no clause that called for reversion of the property if the university did not allow such use.

Ultimately, despite the Board of Regents' decision that it would not accept any conditions on the transfer of the property, the La Crosse mayor and the UW-La Crosse chancellor executed a use agreement. The use agreement provided that the name of the football stadium was to remain "Veterans Memorial Stadium" and that the public would continue to be able to use the facility as it had in the past for the following 25 years, which will expire in 2012.

In 2000, the long-time football coach of UW-La Crosse, Roger Harring, retired.  Within a few days, UW-La Crosse Chancellor Kuipers, issued a memorandum stating that the football stadium would be renamed "Roger Harring Veterans Memorial Stadium."  A controversy arose over this renaming.  Within a few months Coach Harring had requested the removal of his name.  The new UW-La Crosse chancellor then rescinded the prior renaming of the stadium and instead named the football field itself Roger Harring Field.

After the city filed an unsuccessful action to reverse the university's naming decisions, the city, the university and several local veterans representatives negotiated a compromise by which the stadium would be named Roger Harring Stadium and the football field would be known as Memorial Field.  On December 9, 2005, the Board of Regents passed a resolution waiving its normal naming procedure and approving the negotiated names.

Nedvidek and Hundt argue that because the chancellors of UW-La Crosse acted unilaterally in the various renamings, they, all veterans, and all members of the public have been deprived of their First Amendment right to petition the government.  Secondly, they claim that because UW System employees and the Board of Regents did not follow their own policies regarding the renaming of buildings and facilities, they and other veterans were denied due process of law. Nedvidek and Hundt assert that they have a protected interest to maintain the name of the stadium as Veterans Memorial Stadium for 25 years under the 1988 Use Agreement. 

The Supreme Court is expected to review if the plaintiff-appellants in this case have standing, if the controversy is moot, and how the public meetings and open records laws may apply in certain cases involving the UW System officials. From Dane County, stemming from a controversy that began in La Crosse County. Justice Ann Walsh Bradley did not participate.

2007AP79-CR State v. Ward
The Court of Appeals' affirmed Jennifer Ward’s conviction for first-degree reckless homicide.  The state's theory was that Jennifer Ward had shaken her infant nephew, causing a subdural hemotoma, which had ultimately led to his death.  Her petition for review lists the two issues:
7) Are incriminating statements made after an arrestee is held incommunicado while being subject to deceitful interrogation tactics involuntary and inadmissible?
8) Is a waiver of counsel involuntary when it is made after an arrestee is held incommunicado and is told she cannot use the telephone during an overnight break in the interrogation?

Some background: Somewhere around 5 a.m. on Dec. 1, 2004, Jennifer called her husband, Joe, who was a truck driver and was sleeping at the time in Bloomington, IL.  Jennifer had been babysitting her infant nephew, Thomas Ward, for several days.  Jennifer was greatly upset and explained to Joe that Thomas had stopped breathing.  Joe instructed Jennifer to contact a first responder who lived across the street.  When the neighbor, Dawn Conley, came to Jennifer's house, Jennifer told her that Thomas had been throwing up and had stopped breathing.  Conley performed CPR on Thomas until EMTs arrived to transport Thomas to the hospital.  Shortly thereafter, Thomas died. 

Conley was told of Thomas' death and relayed this information to Jennifer.  At that point Jennifer became greatly agitated and blacked out.  A deputy who had come to the Ward residence stated that Jennifer became non-responsive and appeared to have a seizure.  A second ambulance transported Jennifer to the hospital, and Jennifer's own two children were taken there as well. 

During initial questioning at the hospital, Jennifer denied having any knowledge as to the cause of Thomas' death. Detective Glenn Schaepe repeatedly told Jennifer during questioning that she must have caused an injury to Thomas in some way and that she was blocking the memories from her consciousness.  Detective Schaepe also told Jennifer that her daughter had seen Jennifer shake Thomas, although he did not explain that the daughter had described Jennifer's shaking of Thomas as an effort to rouse him after he had become unconscious.

Because the police had arranged for a family friend to take Jennifer's children home while she was still in the hospital, Jennifer had no means to get home when discharged from the hospital.  Detective Schaepe told Jennifer that he wanted to speak further with her and asked her to come to the sheriff's department.  Jennifer agreed to be driven to the sheriff's department.  Jennifer's husband and an attorney he had hired for Jennifer arrived shortly after Jennifer reached the sheriff's department, but Detective Schaepe refused to notify Jennifer of their presence.  He did inform Jennifer of her Miranda rights and asked if she wanted to speak with an attorney.  Although Jennifer asked whether this question meant she needed an attorney, she did not state that she wanted an attorney.  The interrogation continued for three more hours until approximately 5:20 p.m.

At the end of the interrogation, Detective Schaepe told Jennifer that she was being taken into custody in connection with the death of Thomas.  Jennifer was then taken to the county jail. Detective Schaepe told her that she would not be allowed to make any phone calls until he had completed his interrogation of her the next day.  He did not advise her that this prohibition against phone calls did not pertain to calls to an attorney.  Detective Schaepe testified that he subsequently informed jail personnel that although Jennifer was not allowed to contact any family members or friends, she could make a telephone call to an attorney.  It is not clear whether this was communicated to Jennifer.  In any event Jennifer did not speak with anyone during the night.  The next morning the attorney retained by Jennifer's husband again attempted to see Jennifer, but was rebuffed.  Jennifer was questioned further and made a number of inculpatory statements.

After the criminal action was filed, Jennifer filed a motion to suppress the statements she had made during each of three interviews.  She argued that her statements had been involuntary, and that she had not intelligently and knowingly waived her right to the assistance of counsel.  The circuit court rejected Jennifer's arguments and concluded that she had knowingly waived her constitutional rights and had voluntarily incriminated herself.  The court of appeals agreed and affirmed her conviction.

In addition, to support her claim that this was not a shaken baby case, Jennifer points to expert testimony that some of the bleeding between the infant's brain and skull had occurred long before he died.

Jennifer asks the Supreme Court to review, under the totality of the circumstances, including her isolation from her husband and the attorney he hired and the half-truth about her daughter's statement, whether her statements to police and her waiver of her right to an attorney were knowing and voluntary.  From Oneida County.

2007AP541 Genrich v. OHIC
This medical malpractice suit, brought by the estate of Robert V. Genrich and Kathy Genrich, asks the Supreme Court to review three issues related to the statute of limitations.
- Whether a Supreme Court decision regarding the medical malpractice statute of limitations controls where it conflicts with a Court of Appeals decision.
- Whether the statute of limitations for a medical malpractice action begins to run only after a definite irreversible injury.
- Whether the statute of limitations for wrongful death based on medical malpractice runs less than three years from the date of death.

On July 23, 2003, Robert Genrich underwent an abdominal surgical procedure at Meriter Hospital to remedy a perforated duodenal ulcer.  The surgeons and/or nurses unknowingly left a sponge inside Robert's abdomen.  Within a short time after the surgery, Robert showed signs of an infection, including a fever.  The doctors were initially unable to figure out the cause of the infection or to treat it successfully.

Ultimately, the health care providers deduced that a sponge must have been left inside Robert's abdomen.  On Aug. 8, 2003, a second surgery occurred during which the sponge was removed.  Despite the removal of the sponge, Robert's infection continued to get worse and he died three days later, on Aug. 11, 2003.

Kathy Genrich subsequently retained an attorney in connection with making a claim against the relevant health care providers and the hospital.  Meriter and its employees were covered by an insurance policy issued by OHIC Insurance Company. According to Kathy Genrich, an OHIC claims adjuster twice told her lawyer that the statute of limitations would expire on Aug. 13, 2006.

The parties were not able to resolve Kathy's claim.  On Aug. 9, 2006, Kathy filed an action against Meriter, the health care providers and their insurers.  The action included a claim for Robert's pain and suffering brought by the Estate, and a wrongful death claim brought by Kathy individually.

The parties continued settlement negotiations for several months after the filing of the lawsuit, but could not resolve their dispute.  In October 2006, the defendants filed a motion to dismiss both the Estate's and Kathy's claims as time-barred under the statute of limitations.  The circuit court granted the motion and dismissed the claims by both the Estate and Kathy Genrich, concluding that at the latest Robert Genrich suffered an injurious change when he was forced to undergo a second surgery on August 8, 2003, that would not have been necessary but for the negligence of the medical providers.  Thus, because the action was not filed until August 9, 2006, the action was not timely.  The circuit court did not draw any distinction between the Estate's survival claim and Kathy's wrongful death claim as to when the statute of limitations began to run.

The Court of Appeals treated the circuit court's decision as one granting summary judgment and affirmed in an unpublished decision. 
On appeal, Kathy Genrich argued that her wrongful death claim could not have accrued until Robert's death, which occurred on Aug. 11, 2003.  Thus, her complaint filed on Aug. 9, 2006, was timely. 

A decision by the Supreme Court could clarify existing case law and the statute of limitations as they relate to wrongful death claims involving allegations of medical malpractice. From Columbia County.

2007AP496 Coulee Catholic Schools v. Labor and Industry Review Commission
This age-discrimination case examines the interplay of the First Amendment's guarantees of religious freedom and the state's laws prohibiting discrimination.

The Supreme Court previously refused certification by the District IV Court of Appeals, which subsequently affirmed a decision denying Coulee Catholic Schools’ (CCS) motion to dismiss the age discrimination complaint of Wendy Ostlund, a former first-grade teacher.

Some background: Ostlund was a teacher at St. Patrick's Elementary School in Onalaska from 1974 until the end of the 2001-02 school year. In March 2002, St. Patrick's, a part of CCS, opted not to renew the teaching contract of Ostlund and eight other teachers for the 2002-03 school year. St. Patrick's described this situation as a "reduction in force" related to declining enrollments. St. Patrick's apparently explained that it looked at whether a teacher possessed an elementary education degree and teaching certification for the grade they taught as a criterion for determining which teachers' contracts would not be renewed. 

In response to Ostlund's claim that she had been non-renewed because she was over 50 years of age, St. Patrick's noted that eight teachers over age 40 who possessed a certification had been renewed, and a teacher older than Ostlund had been renewed because that teacher possessed a certification. Four teachers younger than age 40 were not renewed because they, like Ostlund, lacked a certification.  CCS has not alleged that its non-renewal of Ostlund's teaching contract occurred due to religious differences or her failure to abide by or promulgate Roman Catholic teachings.

Ostlund filed an age discrimination claim under the Wisconsin Fair Employment Act (WFEA) with the Equal Rights Division of the Department of Workforce Development (DWD).  The DWD initially determined that there was not probable cause to believe that St. Patrick's had engaged in age discrimination against Ostlund. Ostlund appealed, and after a detour to the circuit court, the agency was ordered to consider whether it could proceed with Ostlund's complaint, i.e., whether the First Amendment precluded governmental inquiry because Ostlund's position was "ministerial" or "ecclesiastical." 

An administrative law judge (ALJ) determined that the DWD could proceed to the merits of Ostlund's complaint because her teaching position was not ministerial. The ALJ's decision focused primarily on the fact that the majority of Ostlund's time during her work day involved teaching subjects that the ALJ found to be non-religious.

CCS petitioned for review of the ALJ's decision to the Labor and Industry Review Commission (LIRC).  The LIRC agreed with the ALJ's findings of fact and conclusions of law and adopted them as its own.

  The circuit court also agreed that Ostlund's position was not a ministerial one because her primary job duty was to teach non-religious subjects, and that therefore the First Amendment did not prevent further adjudication of her age discrimination claim.

On appeal, the Court of Appeals acknowledged that the "primary duties" test it had set forth in Jocz v. LIRC, 196 Wis. 2d 273, 538 N.W.2d 355 (Ct. App. 1995), was not sufficient in its current form to answer whether a particular position or category of positions were ministerial.  It expanded that test to include consideration of the criteria used by the religious organization in hiring the plaintiff employee (i.e., did the individual need to have certain religious degrees or qualifications to be hired). 

The Court of Appeals also refused to grant substantial deference to the religious organization's pronouncements regarding the ministerial nature of a particular position.  It concluded that although a religious elementary school may be important to the mission of the church, that fact did not make its teachers ministers who were not covered by state anti-discrimination laws.  It further determined, however, that when a religious organization claims that an employment position at issue in a discrimination claim is a ministerial one, administrative agencies and reviewing courts may not consider the organization's reasons for the employment action it took.  Ultimately, the Court of Appeals concluded that the types of activities that fall within the ministerial exception, teaching religion classes, leading prayers, and participating in religious services, were not "the primary part of [Ostlund's] work day" nor "the primary focus either of the job description or job evaluation." In addition, the court stated that there were not any religious criteria that Ostlund had to satisfy to obtain the job, and that while she was obligated to hold a basic and advanced certification in religion, her religious duties were not her primary duties.  In the end the court stated that the balance of free exercise rights and the state's discrimination policy tipped in favor of proceeding with the adjudication of Ostlund's discrimination claim.

A decision by the Supreme Court could help clarify the interplay between the religious provisions of the First Amendment and Wisconsin's employment laws and will have a statewide impact on the state's citizens who are members of religious organizations and the individuals who are employed by those organizations. From La Crosse County.

2007AP2095-CR State v. Kelly R. Ferguson
This criminal case examines the interplay between the elements of the obstructing an officer statute, Wis. Stat. § 946.41(1), and the constitutional requirement of a warrant to enter an individual's home.

Some background:  In the early morning hours of Dec. 29, 2005, Wausau police were called to investigate an attempted break in of an apartment.  The resident of the apartment stated that his upstairs neighbor, Kelly Ferguson, had been pounding on his door and screaming that he had to vacate his apartment by 6:00 a.m.  Ferguson, however, was not the landlord, but simply a tenant in the upstairs apartment.  When the officers contacted Ferguson, she began to scream and curse at them.  Standing on the stairway landing in front of her apartment door, she announced that she was going to call her landlord.  When the officers asked her not to make the call because it was 4:45 a.m., she cursed.

At that point Ferguson's 19-year-old nephew attempted to calm her down and lead her back into their apartment.  Ferguson pushed him out of her way, screamed at him, and told him to pack his belongings and leave her apartment.  Apparently concerned about leaving the nephew with Ferguson, the officers entered her apartment without a warrant and arrested her for disorderly conduct.  Ferguson attempted to avoid being led down the stairs.  When the officers subsequently picked her up to carry her down the remaining stairs, she kicked her legs up in front of her and began to flail around.  Ferguson was ultimately convicted of disorderly conduct and obstructing an officer.

Ferguson appealed the obstruction conviction, alleging that the officers' warrantless entry into her home had been without lawful authority, one of the elements of the crime of obstructing an officer, and that the circuit court had given an erroneous jury instruction on the lawful authority element.  The Court of Appeals, in an unpublished opinion, agreed with Ferguson that because the officers arrested her for the very crime that led them into her home, the officers could not have been acting with lawful authority unless their warrantless entry into her home to arrest her had been justified by exigent circumstances.  The Court of Appeals vacated the conviction for obstruction and remanded the matter to the circuit court for a new trial.

The state asks the Supreme Court to determine whether the Court of Appeals should have determined the legality of the officers' warrantless entry as a matter of law, rather than submitted the issue to the jury in a new trial.  It also asks the Supreme Court to review whether there is any conflict between the court of appeals' decision and a prior Supreme Court decision that eliminated the affirmative defense of an individual's privilege to resist physically an unlawful arrest as long as the individual uses reasonable physical force.  Finally, the state asks the Supreme Court to review whether the officers' warrantless entry into Ferguson's apartment was justified by the "hot pursuit" exception to the warrant requirement, even though the crime for which the police sought arrest was a misdemeanor rather than a felony.

A decision by the Supreme Court may provide some guidance on the interplay between the elements of the obstructing an officer statute, Wis. Stat. § 946.41(1), and the constitutional requirement of a warrant to enter an individual's home. From Marathon County. Note: This case was granted in July, during the Supreme Court’s previous term.

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). Except where indicated, these cases came to the Supreme Court via petition for review by the party who lost in the lower court.

Ashland
2007AP1506-CR State v. Greene
Chief Justice Shirley S. Abrahamson dissents.
Justice Michael J. Gableman did not participate.

Bayfield
2008AP1769-W Gordon v. Van Hollen
2008AP2086-W “

Brown
2007AP124  Cuene v. Hillaird
Justice David T. Prosser, Jr. did not participate.

2008AP719-CR State v. Walker

Chippewa
2007AP2543  State v. Poirier

Columbia
2007AP2192-CR State v. Wilson

2008AP1550-W Smith v. George

Dane
2007AP269-CR State v. Greene
Chief Justice Shirley S. Abrahamson dissents.

2007AP1846  Sveum v. Smith

2007AP2350  State v. Bethel

2008XX464  State v. Hagberg

2008XX499  State v. Moore

2008AP543  Voigt v. Frank

2008AP1758-W Hagberg v. Circ. Ct. for Dane Co.

2008AP1768-W Staples v. Circ. Ct. for Dane Co.

Douglas
2007AP901  State v. DuPuis

Eau Claire
2007AP2661-CR State v. Goulet

2007AP2699  State v. Brown

Fond du Lac
2007AP908-CR State v. Corrao

Green
2006AP262  State v. Schaar

Jefferson
2007AP964-CR State v. Marinez

2007AP1686  Torzala v. Torzala

Kenosha
2006AP2209  State v. Stokes
2006AP2636  “
2007AP1382  “

2007AP348  Peterson v. PDQ Food

2007AP593-CR State v. Robinson

2007AP1848-CR State v. Delphie

La Crosse
2006AP2743  Eagle Mort. v. Rodriquez

2007AP1270-CR State v. Alexander

2007AP1952-CR State v. Weber

Langlade
2007AP1786-CR State v. Pearson

Marinette
2007AP1263-CRNM State v. Kelley

Milwaukee
2004AP2680-W Evans v. Bertrand
Chief Justice Shirley S. Abrahamson and Justice N. Patrick Crooks dissent.

2006AP1440-CR State v. Townsend

2006AP1636-CR State v. Muskin

2006AP2220  State v. Williams

2006AP3052  State v. Claudio

2007AP407-CRNM State v. T.C.B.

2007AP503  Aslani v. Country Creek Homes
Justice David T. Prosser, Jr. dissents.

2007AP585-CRNM State v. Mattox

2007AP664-CR State v. Robinson

2007AP1080  State v. Ellis

2007AP1177-CR State v. Wesley

2007AP1178  Willowglen Academy v. Connelly
Justice Patience Drake Roggensack dissents.

2007AP1187-CR State v. Hernandez

2007AP1192-CR State v. Payette
2007AP1193-CR “

2007AP1216-CR State v. Matamoros

2007AP1256-CR State v. Orville

2007AP1464-CR State v. Jones

2007AP1621  State v. Jones

2007AP1688-CR State v. Welch

2007AP1878-CR State v. Smith

2007AP2191-W Smith v. Kingston

2007AP2232  State v. Ezell

2007AP2433  Milw. Police Ass’n v. City of Milw.

2007AP2781-CR State v. Griffin

2008AP1446-W Johnson v. Malone

2008AP1973-CA Burkett v. COA

Oconto
2007AP1166-CR State v. Seymour

Outagamie
2007AP2949  Brewer v. Brickline
Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley dissent.
Justice David T. Prosser, Jr. did not participate.

2008AP451-CR State v. Wolf

Polk
2005AP2336  Tyler v. The Riverbank

Racine
2007AP1334-CR State v. Martin

Rock
2007AP1753  JP Morgan Chase Bank v. Green

Sauk
2007AP2491  Town of Merrimac v. Vill. of Merrimac

2007AP2764  State v. Alvarado

Sheboygan
2007AP1268  Swinson v. Hart

Washburn
2007AP2877  Co. of Washburn V. Rasmussen

Washington
2007AP1751  Joyce v. Joyce
Justice Patience Drake Roggensack dissents.
Justice Annette Kingsland Ziegler did not participate.

Waukesha
2007AP1447  Henderson v. Gomez

Winnebago
2007AP1752  Nature Conservancy v. Altnau

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