The cases listed below will be heard in
the Wisconsin Supreme Court Hearing Room, 231 East, State Capitol.
This calendar includes cases that originated
in the following counties:
Chippewa
Columbia
Kenosha
Milwaukee
Walworth
WEDNESDAY, JANUARY 9, 2013
9:45 a.m. 10AP425 - State
v. Tramell E. Starks
10:45 a.m. 11AP2166 - David
J. Rosecky v. Monica M. Schissel
1:30
p.m. 11AP788 - Christopher
T. Beidel v. Sideline Software, Inc.
THURSDAY, JANUARY 10, 2013
9:45
a.m. 10AP3158 - Park
Bank v. Roger E. Westburg
10:45
a.m. 11AP685-CR - State
v. Lamont L. Travis
FRIDAY, JANUARY
11, 2013
9:45 a.m.
11AP450-CR - State
v. Julius C. Burton
10:45
a.m. 11AP203 - Xcel
Energy Services, Inc. v. Labor and Industry Review Comm.
In addition to the cases listed above, the
following case is assigned for decision by the court on the last date of oral
argument based upon the submission of briefs without oral argument:
11AP2458-D - Office
of Lawyer Regulation v. Peter J. Thompson
The Supreme Court calendar may change between
the time you receive these synopses and when the cases are heard. It is suggested that you confirm the time and
date of any case you are interested in by calling the Clerk of the Supreme
Court at 608-266-1880. That office will also have the names of the attorneys
who will be arguing the cases.
Radio
and TV, and print media wanting to take photographs, must make media requests
72 hours in advance by calling Supreme Court Media Coordinator Rick Blum at
608-271-4321. Summaries provided are not complete analyses of the issues
presented.
WISCONSIN
SUPREME COURT
WEDNESDAY,
JANUARY 9, 2013
9:45
a.m.
This is
a review of a decision of the Wisconsin Court of Appeals, District I
(headquartered in Milwaukee), which affirmed a Milwaukee County Circuit Court
decision, Judge Kevin E. Martens, presiding.
2010AP425 State
v. Starks
This criminal case examines
pleading standards and procedures arising from a defendant’s claims of
ineffective assistance of both trial and post-conviction counsel.
Specifically, the Supreme Court
reviews whether Tramell E. Starks’s pro
se § 974.06 motion claiming ineffective assistance of counsel is
procedurally barred as a successive motion under Wis. Stat. § 974.06(4) because
Starks had previously filed a pro se
motion to modify his sentence to vacate a DNA surcharge. The Court also reviews
whether Stark’s allegations of ineffective assistance of counsel satisfy
the “sufficient reason” requirement of § 974.06(4).
Some background: Starks was charged with first-degree
intentional homicide, as party to a crime, and possession of a firearm by a
felon. A jury convicted him of the possession charge and of first-degree
reckless homicide, a lesser-included offense of the intentional-homicide
charge. Starks was sentenced to a total of 36 years’ initial confinement and 19
years’ extended supervision.
Starks, through counsel, pursued
and lost a direct appeal. Starks discharged his appellate counsel and filed a pro se motion for reconsideration with
the Court of Appeals, which the court denied.
Starks then filed a pro se
§ 974.06 motion with the circuit court. The circuit court refused to accept the
motion due to Starks’s non-compliance with the local rules, but granted him
leave to re-file the motion within the limitations of the local rules.
Starks then filed with the
circuit court a pro se motion to
vacate a DNA surcharge. The circuit
court denied the motion as time-barred.
Starks then filed with the
circuit court a § 974.06 motion claiming ineffective assistance of trial
counsel, and ineffective assistance of post-conviction counsel for failing to
raise the alleged ineffective assistance of trial counsel.
The circuit court took up
Starks’s § 974.06 motion on its merits.
It rejected each of Starks’s contentions of trial counsel
ineffectiveness, and thus held that Starks’s post-conviction counsel was not
ineffective for failing to raise these issues.
Starks appealed. The Court of Appeals ruled that Starks’s §
974.06 motion was barred by the successive motion bar under § 974.06(4) and State
v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994). The court ruled that Starks could have raised
his ineffectiveness claims at the same time as the motion to vacate the DNA
surcharge.
The Wisconsin Association of
Criminal Defense Lawyers (WACDL) has filed a non-party brief amicus curiae in support of Starks’ pro se petition for review. WACDL argues that the Court of Appeals’
interpretation of § 974.06(4) is unreasonable because it conflicts with the
rationale of Escalona-Naranjo and with an unpublished appellate
decision, State v. Matamoros, 2011 WI App 19, 331 Wis. 2d 487, 795 N.W.2d
62 (Table), Case No. 2009AP2982, unpub. slip op. (Ct. App. 2010).
WISCONSIN
SUPREME COURT
WEDNESDAY,
JANUARY 9, 2013
10:45
a.m.
This is
a certification from the Wisconsin Court of Appeals, District IV (headquartered
in Madison). The Court of Appeals
may certify cases that it believes cannot be resolved by applying current
Wisconsin law. The Wisconsin Supreme Court, as the state’s preeminent
law-developing court, often accepts such certifications from the Court of
Appeals. This case originated in Columbia County Circuit Court,
Judge Alan J. White, presiding.
2011AP2166
Rosecky
v. Schissel
This certification asks the
Wisconsin Supreme Court to decide whether an agreement for a traditional
surrogacy and adoption of a child is enforceable.
Some background: David and Marcia Rosecky and Monica and Cory
Schissel were longtime friends. Marcia
Rosecky’s leukemia treatment prevented her from bearing a child. The Schissels have five children of their
own. In 2004, and again in 2008, Monica offered to carry a child for the
Roseckys to raise. The Roseckys decided to take Monica up on the offer.
The parties entered into an
agreement for a traditional surrogacy whereby an embryo would be conceived via
artificial insemination using Monica’s own egg and David’s sperm. (A gestational surrogacy involves implanting
the surrogate with an embryo created by in vitro fertilization.)
The parties agreed, first
verbally and then in writing through a written parentage agreement that Monica
would carry a child for the Roseckys, who would raise the child to adulthood.
The agreement specified that
after the child was born the Roseckys would have physical placement and custody
and that the Schissels would not have rights to custody or placement. The agreement also provided that Monica would
cooperate with any proceedings for the termination of her parental rights and
adoption of the child by the Roseckys.
Before the child was born, Monica
informed the Roseckys that she was unwilling to terminate her parental rights. Following the birth of the child, David filed
a motion in circuit court seeking specific performance of the parentage
agreement. On Feb. 8, 2011, the circuit
court denied the motion for specific performance and found that the parentage
agreement was null and void because it did not meet the requirements for
voluntary termination of parental rights under ch. 48, Stats. The parties
stipulated to an interim placement order that allowed Monica three hours of
visitation with the child every other week.
A trial was held to determine the
child’s best interests relative to custody and physical placement under §
767.41, Stats. In a decision and order
dated Aug. 25, 2011, the circuit court awarded sole custody and primary
placement of the child to David. The court
awarded secondary placement to Monica, under terms that allow her six hours of
placement every other weekend until the child reaches two years of age (which
occurred in March 2012), after which point Monica is entitled to overnight
placement every other weekend.
David Rosecky appealed, arguing
that the parentage agreement should be enforced. He asserts the parentage agreement can be
enforced without requiring Monica to terminate her parental rights. He also points to the severability clause in
the agreement which allows the court to enforce other valid provisions of the
contract and carry out the parties’ intent, in the event some provisions are
deemed invalid.
David also argues that the
doctrine of equitable estoppel requires enforcement of the contract – that
Monica made both verbal and written promises that she would serve as the
Roseckys’ surrogate. David argues Monica
knew the Roseckys would rely on her promises and with that knowledge she became
inseminated with David’s sperm, became pregnant, and accepted certain payments
from the Roseckys.
Monica argues that the parentage
agreement cannot be enforced because it contains illegal payment provisions;
its attempt to contract away parental rights is invalid; it cannot be binding
on the parties without prior court approval; it impermissibly substitutes the
parties’ agreement for the best interest of the child; and the termination of
parental rights provision is contrary to Wisconsin law. Monica points out that 31 states, including
Wisconsin, have no laws either allowing or prohibiting surrogacy agreements.
In
its certification memo, District IV says whether a surrogacy agreement should
be enforced is a question that is likely to recur and involves policy
determinations of statewide importance that are most appropriately decided by
the Supreme Court.
WISCONSIN
SUPREME COURT
WEDNESDAY,
JANUARY 9, 2013
1:30
p.m.
This is
a review of a decision of the Wisconsin Court of Appeals, District I
(headquartered in Milwaukee), which reversed a Milwaukee County Circuit Court
decision, William W. Brash, presiding.
2011AP788 Beidel v. Sideline Software
This case arises from a dispute
between the two shareholders of Sideline Software, Inc. (Sideline), a tightly
held fantasy football software company. The Supreme Court will examine the
doctrine of “constructive termination” (or “constructive discharge”) in the
context of a stock-repurchase agreement (agreement).
Some background: Christopher T.
Beidel and Michael C. Hall incorporated Sideline in 1998. Hall was the
bare-majority stockholder with 2,505 shares of Sideline stock; Beidel had 2,495
shares. In 2004, Hall and Beidel entered into the agreement, which provided
that if a shareholder was fired without cause, the terminated shareholder could
“put” his shares to the corporation, which would require Sideline to buy that
shareholder’s stock at an agreed price.
The price was periodically
revised as agreed upon at times under the agreement, and the final price the
two shareholders agreed upon was $1,600 per share in March 6, 2007 – a price
that would remain in effect until March 6, 2009.
In the fall of 2008, a third
party apparently made inquiries about buying Sideline. Beidel and Hall were not in agreement on
pursuing a possible sale and could not agree on the future direction of the
company.
Hall spoke with Beidel on the
telephone and indicated that he planned on firing Beidel in March 2009 after
the $1,600 stipulated per share purchase price had expired. At a subsequent
in-person meeting, Hall again indicated that he intended to terminate Beidel’s
employment after the expiration of the stipulated per share price and asked
Beidel to explain in writing what he had been doing for the company so his
duties could transitioned to others.
On Jan. 20, 2009, Beidel sent a
letter to Hall that purported to exercise Beidel’s “put” option for Sideline to
purchase his shares at the stipulated $1,600 per share price. Beidel’s letter stated that it did not
constitute a voluntary termination of his employment. He asserted that Hall had already effectively
terminated his employment by informing Beidel that he would be terminated and
by transitioning Beidel’s dueties to other Sideline employees.
Beidel filed a complaint against
Sideline, Hall and Kevin Austin, another officer of Sideline. Consistent with the language of the
agreement, Beidel’s complaint sought specific performance by Sideline of its
obligation to purchase the shares that Beidel had “put” to the corporation in
his letter.
Sideline filed a motion for
summary judgment. The circuit court
granted summary judgment to Sideline on any claim for “constructive discharge,”
concluding that Beidel’s claim rested on a theory of constructive termination,
which deems an employee to have been fired even when the employer does not
affirmatively terminate the employee’s employment. The circuit court noted, however, that a
claim for constructive termination does not lie unless the employee has
resigned as a result of what the employer has done. See Strozinsky v.
School Dist.
of Brown Deer, 2000 WI 97, ¶83, 237 Wis. 2d 19, 614 N.W.2d 443. Because Beidel had never resigned, the circuit
court concluded that he could not pursue a claim that was based on the doctrine
of constructive termination.
The Court of Appeals reversed and
remanded to the circuit court for a weighing of the equities regarding the
issue of specific performance. The Court
of Appeals agreed with the circuit court that Beidel could not rest his claim
on a theory of constructive termination because he had never resigned. It nonetheless determined that, given
Beidel’s request for specific performance of the agreement and the rule that
all contracts have an implied duty of good faith and fair dealing, the circuit
court should have weighed the equities regarding whether Beidel’s employment
had been terminated before the expiration of the stipulated purchase price such
that he could require the company to buy his shares at that price.
Sideline asks the Supreme Court
to review if Beidel had been terminated within the meaning of the agreement
prior to the expiration of the stipulated per share purchase price, if Beidel
was required to prove a constructive termination under the essential elements
set out in Strozinsky in order to put his shares to Sideline for the
stipulated price.
Additionally,
Sideline asks the Supreme Court to review: if the implied covenant of good
faith and fair dealing require a court to “assess competing equities” between
the parties in making a determination whether an unambiguous provision of a
contract has been breached; and when a breach of contract lawsuit has been pled
as an equitable action for specific performance, if a trial court has greater
latitude in reaching a conclusion that the contract has been breached by the
defendant than if the lawsuit has been pled as one for money damages?
WISCONSIN
SUPREME COURT
THURSDAY,
JANUARY 10, 2013
9:45
a.m.
This is
a review of a decision of the Wisconsin Court of Appeals, District II
(headquartered in Waukesha), which affirmed a Walworth County Circuit Court
decision, John R. Race, presiding.
2010AP3158 Park
Bank v. Westburg
This case examines the legal
doctrines of direct/derivative claims and claim preclusion and the distinction
between a debtor corporation and the persons who guarantee the repayment of a
corporation’s debts.
Some background: In 2004, Roger
E. and Sandra L. Westburg selected a failed woodworking business in Walworth
that they could purchase and use as the location for a new business. They
formed two limited liability entities: Zaddo, Inc. (Zaddo), a corporation, to
be the operating company; and Zaddo Holdings, LLC (Zaddo Holdings), a limited
liability company, to own the real estate on which the business would be
located. The Westburgs were the sole
shareholders and sole operating officers of Zaddo. They were also the sole members of Zaddo
Holdings.
In connection with the startup
and funding of the business, the Westburgs ultimately signed two documents,
each entitled “Continuing Guaranty (Unlimited).” In one document the Westburgs guaranteed
payment of debts owed by Zaddo to Park Bank (the Bank), and in the other they
guaranteed payment of debts owed by Zaddo Holdings.
The Bank provided interim
financing for the purchase of the woodworking equipment and real estate, and
worked with the Westburgs in applying for a loan through the Small Business Administration
(SBA). According to the Westburgs, shortly after Zaddo and Zaddo Holdings had
executed notes in favor of the SBA for its loans, the Bank informed the
Westburgs that they personally needed to invest more than $200,000 in
additional capital.
The Bank apparently extended an
additional loan to Zaddo and took as security a mortgage lien on the Westburgs’
home. After the home was sold, the Bank
required the Westburgs to place some funds into an account at the Bank. According to the Westburgs, those funds were
later transferred to a securities account at the Bank, which the Westburgs used
for their living expenses. They assert
that the Bank released any security interest in the personal funds in that
account.
At a meeting in March 2006, the
Bank gave a letter to Zaddo and the Westburgs that the Bank describes as a
notice of default. The Westburgs assert that the Bank never stated that either
entity was in default.
At another meeting in May 2006,
the Westburgs signed some previously agreed-upon documents that subordinated
their personal loans to Zaddo and Zaddo Holdings to the loans provided by the
Bank. The Westburgs claim that the Bank
representatives also produced an incomplete draft of a letter, dated for six
days later and containing blanks. The
Westburgs claim that out of fear that the Bank would take some action that
would place their more than $1 million personal investment at risk, they signed
the document, which the Bank has characterized as a forbearance agreement.
The Westburgs contend the Bank
put a hold on the securities account and that they were pressured to initiate a
Ch. 128 receivership proceeding in Walworth County Circuit Court on behalf of
Zaddo to regain access. The filing resulted in the liquidation of all of
Zaddo’s assets and the payment of nearly all of the proceeds to the Bank.
The Bank filed a separate
foreclosure proceeding against Zaddo Holdings in Walworth County Circuit
Court. The Bank’s complaint did not name
the Westburgs as defendants individually.
Zaddo Holdings did not contest the lawsuit, and a default judgment of
foreclosure in favor of the Bank was entered.
The real estate owned by Zaddo Holdings was sold at a sheriff’s sale,
which was ultimately confirmed by the circuit court.
In January 2007, the Bank filed
suit in Milwaukee County Circuit Court against the Westburgs personally on the
guarantees of the loans to both Zaddo and Zaddo Holdings. The Bank’s complaint sought slightly more
than $680,000 for outstanding amounts owed by Zaddo and nearly $700,000 for
outstanding amounts allegedly owed by Zaddo Holdings. Venue in the case was transferred to the
Walworth County Circuit Court.
The Westburgs raised a
substantial number of affirmative defenses and counterclaims against the Bank,
including breach of fiduciary duty, breach of contract, and breach of the
implied duty of good faith and fair dealing.
They also included requests for a declaratory judgment, for punitive
damages, and for injunctive relief against the bank.
The circuit court ultimately granted
judgment in favor of the bank. On
appeal, the Court of Appeals viewed the matter as a contract dispute and stated
that there were two issues to be decided on review: (1) whether the Westburgs lacked standing to
assert their claims and affirmative defenses because they belong to the
corporate entities and are therefore derivative, and (2) whether the Westburgs’
claims and affirmative defenses are barred by claim preclusion (i.e., should
have been raised in the receivership and foreclosure actions).
The Westburgs ask the Supreme
Court to review in greater detail the law, legal distinctions and financial
relationships among limited liability entities, their shareholders or members,
lenders and personal guarantors under the circumstances presented here.
WISCONSIN
SUPREME COURT
THURSDAY,
JANUARY 10, 2013
10:45
a.m.
This is
a review of a decision of the Wisconsin Court of Appeals, District II
(headquartered in Waukesha), which affirmed a Kenosha County Circuit Court
decision, William W. Warren III, presiding.
2011AP685-CR
State
v. Travis
This criminal case examines
whether a court’s mistaken belief that a conviction required a minimum sentence
of five years of confinement qualifies as a structural error requiring either
resentencing or automatic reversal of the entire conviction, or as a
non-structural error that can be disregarded if proven harmless.
Some background: The state
alleged that Lamont L. Travis, while drunk, moved his hand down the abdomen
toward the pubic area of a girl under the age of 12 years, but he was prevented
from touching her pubic area because she slapped his hand away.
The complaint charged that Travis
had committed attempted first-degree sexual assault of a child, in violation of
Wis. Stat. § 948.02(1)(d), which prohibits an adult from having “sexual
contact with a person who has not attained the age of 16 years by use or threat
of force or violence.” The factual allegations of the complaint did not mention
the threat or use of force or violence.
Travis pled guilty. Although
there also was no reference to force or violence during the plea hearing, the
court’s written judgment listed the same offense of conviction cited in the
criminal complaint.
The court referenced the
five-year mandatory minimum under Stat. § 948.02(1)(d) multiple times at
the sentencing hearing, but did not explicitly mention the mandatory minimum
when it announced the sentence of eight years of initial confinement and 10
years of extended supervision.
Travis filed a post-conviction
motion, alleging that the circuit court had violated his due process rights by
relying on inaccurate information (the mandatory five-year prison sentence) at
sentencing and requested that he be granted a new sentencing hearing.
The circuit court agreed with
Travis that the error in believing that Travis was subject to a minimum
five-year prison sentence had “ultimately really pervaded the entire file in
this case.” It nonetheless denied
Travis’s motion because it found the error to have been harmless since it had
relied “primarily” on Travis’s prior criminal record. Although both parties and the court now
agreed that Travis should not have been convicted under Wis. Stat.
§ 948.02(1)(d) because no force or violence was involved, the judgment of
conviction was not amended.
The Court of Appeals remanded the
case to the circuit court for resentencing only and ordered the circuit court
to amend the judgment of conviction to show that Travis had actually pled
guilty and been convicted under Wis. Stat. § 948.02(1)(e), which
criminalizes “sexual contact with a person who has not attained the age of 13
years.” Unlike subsection (1)(d),
subsection (1)(e) does not require a five-year mandatory minimum sentence.
The Court of Appeals said in
order for a complaint to be constitutionally valid, it “must contain the
‘essential facts’ constituting the offense charged.” State v. Williams, 47 Wis. 2d 242,
253, 177 N.W.2d 611 (1970). Since the
complaint had not alleged any fact supporting the threat or use of violence or
force, the complaint’s allegation that Travis had violated subsection (1)(d)
was constitutionally invalid.
In appealing to the Supreme
Court, the state contends that the Court of Appeals’ published decision has
“radically expanded” the structural error doctrine and conflicts with the
Supreme Court’s decision in State v. Tiepelman, 2006 WI 66, 291 Wis. 2d
179, 717 N.W.2d 1. Tiepelman indicated that if a defendant proves that a
sentencing judge relied on inaccurate information, harmless error review
applies to the error.
Travis claims that the Court of
Appeals’ decision was narrowly tied to the unusual facts of this case, where
all the parties and the court relied on an erroneous view of the applicable
statute from the filing of the complaint through sentencing. He emphasizes that this was not a case where
a trial court relies on an inaccurate piece of information only at the
sentencing hearing.
WISCONSIN
SUPREME COURT
FRIDAY,
JANUARY 11, 2013
9:45
a.m.
This is
a review of a decision of the Wisconsin Court of Appeals, District I
(headquartered in Milwaukee), which affirmed a Milwaukee County Circuit Court
decision, Patricia D. McMahon and Kevin E. Martens, presiding.
2011AP450-CR State
v. Burton
This case examines whether a
defendant is entitled to withdraw a guilty plea if there is no evidence in the
record that he was advised, either by trial counsel or by the circuit court, of
his right to have a jury trial on the issue of mental disease or defect.
Some background: It is undisputed
that in June of 2009 Julius C. Burton shot two police officers who were trying
to stop him after they saw him commit an ordinance violation. Although the defendant claimed the officers
had drawn their guns, security footage from a nearby building showed that the
officers had not taken their weapons out of the holsters. One officer was shot in the shoulder, knee
and face. The other officer sustained
serious injuries, including the loss of an eye and a portion of his brain.
Burton was charged with two
counts of attempted first-degree intentional homicide by use of a dangerous
weapon.
It is also undisputed the
defendant has a history of mental health issues. At his initial appearance, the circuit court
ordered a competency evaluation. Burton did not object after one physician
found him competent to proceed to trial, and he initially pled not guilty by
reason of mental disease or defect (NGI). Subsequently, another physician
appointed by the court found insufficient evidence to support a not guilty by
mental disease or defect, and another physician retained by defense counsel
concluded there was sufficient evidence to support such a plea.
In January of 2010, the state
offered to recommend 50 years of initial confinement and to stand silent on
extended supervision if Burton would plead guilty to both counts. Burton agreed. He completed a plea questionnaire and waiver
of rights form. The circuit court
engaged him in a colloquy, discussed the fact that he would no longer be
pursuing an NGI plea, accepted the pleas, and found him guilty. At sentencing, the circuit court imposed
consecutive terms of 40 years of initial confinement and 10 years of extended
supervision.
In January of 2011, the defendant
filed a post-conviction motion seeking to withdraw his pleas. He alleged ineffective assistance of trial
counsel and a circuit court failure during the plea colloquy. Both arguments were premised on the fact that
neither trial counsel nor the circuit court advised the defendant at the plea
hearing that he had the right to a bifurcated jury trial and that he could
choose to plead guilty to the two offenses and still have a jury decide whether
or not he was responsible by reason of mental disease or defect. Burton argued
his pleas were not entered knowingly, voluntarily and intelligently.
The circuit court denied the
post-conviction motion without a hearing. The defendant appealed, and the Court
of Appeals affirmed. The Court of
Appeals noted a hearing on a post-conviction motion is required only when the
movant states sufficient material facts that, if true, would entitle him to
relief.
The Court of Appeals noted that
an NGI plea is authorized by § 971.06(1)(d), and that § 971.165 generally
provides for the bifurcation of guilt and mental responsibility phases.
The Court of Appeals said
although the motion alleged that the record failed to show whether trial
counsel advised the defendant about a bifurcated plea, the motion did not
allege that counsel actually failed to so inform him.
The court also noted a defendant
who alleges counsel was ineffective in failing to take certain steps must show
with specificity what the actions, if taken, would have revealed and how they
would have altered the outcome of the proceeding. State v. Byrge, 225 Wis. 2d 702,
724, 594 N.W.2d 388 (Ct. App. 1999).
The Court of Appeals said the
circuit court also had no obligation to personally address the defendant with
respect to the withdrawal of his NGI plea.
Having concluded the circuit court was not obligated to advise the
defendant of the availability of bifurcation, the Court of Appeals said the
post-conviction court properly denied relief.
While the Court of Appeals said
courts must engage in personal colloquies to protect defendants against
violations of fundamental constitutional rights, neither the federal
constitution nor the Wisconsin Constitution confers a right to an insanity
defense or plea. See State v.
Francis, 2005 WI App 161, ¶1, 285 Wis. 2d 451, 701 N.W.2d 632.
The defendant argues that by
failing to advise him of his right to a jury trial in regard to his NGI
defense, even if he pled guilty to the crimes, the circuit court failed to
obtain a knowing, intelligent and voluntary waiver of his right to a jury trial
on that issue.
The defendant says the state of
Wisconsin has conferred on criminal defendants the right to have a jury trial
on the issue of whether they were not criminally responsible by reason of
mental disease or defect, even if they pled guilty to the crimes charged against
them.
A decision by the Supreme Court
could clarify whether a circuit court is required to advise a defendant that he
is entitled to plead guilty to the crimes and still have a jury trial to
determine whether he should be held criminally responsible for those crimes by
reason of mental disease or defect.
WISCONSIN
SUPREME COURT
FRIDAY,
JANUARY 11, 2013
10:45
a.m.
This is
a review of a decision of the Wisconsin Court of Appeals, District III
(headquartered in Wausau), which reversed a Chippewa County Circuit Court
decision, James M. Isaacson, presiding.
2011AP203
Xcel Energy
Services v. LIRC
This insurance case examines the
interpretation of “adverse party” under Wis. Stat. § 102.23(1) and whether
a Court of Appeals’ decision affirmed by the Supreme Court on grounds other
than those relied on by the Court of Appeals remains precedent that must be
followed by the Court of Appeals.
Some background: John Smoczyk was injured on the job while
working for Xcel Energy Services in January 2007 and applied for worker’s
compensation benefits. He was awarded temporary disability, but the
administrative law judge deferred a decision regarding permanent total
disability and loss of earning capacity until Smoczyk received additional
diagnostic tests. Smoczyk did not appeal
from this decision.
Smoczyk renewed his claim for
permanent total disability on Aug. 11, 2009. The administrative law judge
assigned to Smoczyk’s renewed claim concluded Smoczyk had sustained a permanent
partial disability of 60 percent and awarded monetary damages. On appeal, the
Labor and Industry Review Commission (LIRC or the Commission) deemed Smoczyk
permanently and totally disabled.
Xcel filed an action for circuit
court review of the Commission’s decision, naming the Commission and Smoczyk as
respondents. Xcel’s worker’s compensation insurer, Ace American Insurance Co.,
(Ace) was not named as a party in the circuit court action, though it had been
joined throughout the administrative proceedings.
The Commission moved to dismiss
on competency grounds. It maintained that the circuit court lacked competency
to hear the action because Xcel had failed to include Ace as a party.
Competency refers
to a court’s ability to exercise the subject matter jurisdiction vested in it
by the state constitution. See Village
of Trempealeau v. Mikrut, 2004 WI 79, ¶¶8-9, 273 Wis. 2d
76, 681 N.W.2d 190. “[A] failure to comply with a statutory mandate pertaining
to the exercise of subject matter jurisdiction may result in a loss of the
circuit court’s competency to adjudicate the particular case before the court.”
Id., ¶9. A judgment
rendered by a court lacking competency is invalid. Id., ¶14.
In a final order dated Dec. 14,
2010, the circuit court denied the Commission’s motion to dismiss, but
confirmed the Commission’s order on the merits.
Xcel appealed the circuit court’s
final order. The Court of Appeals did
not reach the merits of Xcel’s arguments.
It concluded that Xcel’s failure to name Ace had constituted a failure
to comply with the requirement in Wis. Stat. § 02.23(1)(a) to join
“adverse part[ies],” which had deprived the circuit court of competency to
adjudicate Xcel’s complaint. The Court
of Appeals said that it was bound under Cook v. Cook, 208 Wis. 2d 166,
189-90, 560 N.W.2d 246 (1997), to apply a broad legal interpretation of the
term “adverse party” set forth in a prior Court of Appeals opinion, even though
the Supreme Court used a much narrower analysis when it affirmed the earlier
Court of Appeals’ decision. The Court of Appeals therefore reversed the circuit
court’s order and remanded the case to the circuit court with directions to
dismiss Xcel’s complaint.
Xcel’s petition lists four issues
to be reviewed, two of which address the procedural aspects of the case:
1.
Whether the circuit court lacked competency due to counsel for Xcel and Ace
failing to name Ace a party to the case?
2.
Did the Court of Appeals properly grant itself authority to review the circuit
court’s denial of LIRC’s motion to dismiss when LIRC did not file a notice of
appeal or cross-appeal?
Two other issues raised in the
petition relate more to the merits of Xcel’s arguments against LIRC’s award of
benefits to Smoczyk and the interplay of decisions by the administrative law
judges involved in the case.