WISCONSIN SUPREME COURT CALENDAR
AND CASE SYNOPSES
March 2005
This calendar contains cases that
originated in the following counties:
Adams
Brown
Dane
Douglas
Milwaukee
Portage
Rock
Walworth
These cases will be heard in the
Wisconsin Supreme Court Hearing Room, 231 East Capitol:
TUESDAY, MARCH 1, 2005
9:45 a.m. 02-2448 Patricia Mrozek, et al
v. Intra Financial Corp., et al
10:45 a.m. 03-2164 Julie Ann Walberg v. St.
Francis Home, Inc., et al
1:30 p.m. 03-1959 Patricia A. Steiner, et
al v. Wisconsin Mutual Ins. Co., et al
WEDNESDAY, MARCH 2, 2005
9:45 a.m. 03-1907 Village of Hobart v.
Brown County, et al
10:45 a.m. 04-0723 In re the Termination of
Parental Rights to Chezron M.: State v. James P.
1:30 p.m. 03-1690-CR State v. Tyrone L.
DuBose
THURSDAY, MARCH 3, 2005
9:45 a.m. 03-0801 Gerald Grams, et al v.
Milk Products, Inc., et al
10:45 a.m. 03-0113-CR State v. Antwan B.
Manuel
1:30 p.m. 03-0580 Gregory G. Phelps, et al
v. Physicians Insurance Co. of Wis., Inc. et al
THURSDAY, MARCH 10, 2005
9:45 a.m. 03-1794 Dane County v. Kenneth
R. McGrew
10:45 a.m. 03-2097-CR State v. Peter A. Fonte
1:30 p.m. 03-2934 State v. Michael S., Jr.
In addition to the cases
listed above, the court will consider and determine on briefs, without oral
argument, the following cases:
03-1244-D In the Matter of Disciplinary
Proceedings Against Arik J. Guenther: OLR v. Arik J. Guenther (no summary
available; Guenther is a Fond du Lac attorney).
WISCONSIN SUPREME COURT
TUESDAY, MARCH 1, 2005
9:45 a.m.
02-2448 Patricia Mrozek, et al v. Intra
Financial Corp., et al
This is a review
of a decision of the Wisconsin Court of Appeals, District IV (headquartered in
Madison), which affirmed a judgment of the Portage County Circuit Court Judge
Frederic Fleishauer presiding.
This case involves a woman who set out to build a motel
and ended up convicted of three counts of theft by fraud and two counts of
securities fraud. The Supreme Court will decide if she can sue her lawyers for
allegedly giving her the bad advice that led to the criminal convictions.
Here is the background: In spring 1992, Patricia Mrozek
hired the law firm of Mallery & Zimmerman, S.C., to help her form a
corporation called Plover Motel, Inc. (PMI) in order to build and operate an
AmericInn Motel on Interstate 39 in Plover. Mrozek was a financial advisor and
licensed securities agent who had never before owned or operated a motel. She
estimated that $2.8 million would be required for the project. She intended to
raise $1.4 million through a private stock offering and borrow the rest from a
bank. The law firm was to help her file paperwork with the Securities
Commission to set up the stock sale.
Mrozek solicited investments of more than $500,000 mostly
from senior citizens in the Plover/Stevens Point area. In spite of the fact
that the investments fell far short of the $1.8 million needed to secure the
bank’s financing commitments, Mrozek moved ahead with the motel, breaking
ground in fall 1992. When PMI filed for bankruptcy in 1994, the bankruptcy
judge made the following observation:
In
truth, the project appears to have been launched in haste and without due
consideration of the possibility that the necessary funds might never
materialize. After the initial $500,000 in invested funds dwindled to nothing,
the relationship between the debtor [PMI] and IFC [the general contractor]
deteriorated….
Mrozek
had hoped to shore up the project’s funding through the stock sale. But shortly
after the groundbreaking, her license to sell securities was revoked because of
illegal investment activities in an unrelated case. When the law firm, which
did not know about the revocation, submitted the paperwork for the stock sale,
the Securities Commission rejected it. Eventually the Securities Commission
agreed to permit Mrozek to sell PMI stock but only to qualified investors -
people who met certain net worth and income standards. Mrozek was unable to
find any investors in this league. The Securities Commission eventually revoked
the special permission it had granted to Mrozek and any hope of a stock sale
was gone. At this point, the law firm withdrew from representing her.
The
Portage County District Attorney’s Office, at the request of the Securities
Commission, then filed 13 criminal charges against Mrozek alleging that she
misled the motel investors. She entered into a plea agreement, pleading guilty
to three counts, and was incarcerated and ordered to pay restitution to her
investors.
She
then tried to sue the law firm for professional negligence. She wanted to
recover legal fees, lost wages, the restitution she had to pay to the investors,
and the future profits that a successful motel could have generated. The
circuit court dismissed her claims against the law firm, concluding that her
plea of guilty amounted to an acknowledgement that she was responsible for her
crimes and precluded her from trying to blame the lawyers. The Court of Appeals
agreed.
The
Supreme Court will decide if Mrozek’s guilty pleas will preclude her from
pursing a malpractice claim against the law firm.
WISCONSIN SUPREME COURT
TUESDAY, MARCH 1, 2005
10:45 a.m.
03-2164 Julie
Ann Walberg v. St. Francis Home, Inc., et al
This is a review of a decision of the
Wisconsin Court of Appeals, District III (headquartered in Wausau), which
reversed an order of the Douglas County Circuit Court, Judge George L. Glonek
presiding.
This
case involves a claim against a nursing home by a person who suffered from
Alzheimer’s disease and who is now dead. The Supreme Court is expected to
clarify the length of time available to the person’s survivors to pursue the
claim. This clarification involves analysis of the interplay of two sections of
the state statutes:
Wis. Stat. § 893.22:
If a person entitled to bring an action
dies before the expiration of the time limited for the commencement of the
action and the cause of action survives, an action may be commenced by the
person’s representatives after the expiration of that time and within one year
from the person’s death.
Wis. Stat. § 893.16:
If a person entitled to bring an action is, at the
time the cause of action accrues, either under the age of 18 years, except for
actions against health care providers; or mentally ill, the action may be
commenced within 2 years after the disability ceases, except that where the
disability is due to mental illness, the period of limitation prescribed in
this chapter may not be extended for more than 5 years.
Here
is the background: between March 1994 and December 1996, Lucille Genevieve Yox
was a resident of St. Francis Home, a 96-bed nursing facility in Superior. Yox,
who suffered from Alzheimer’s disease during her time at St. Francis, died in
August 2000. Two years after her death, in August 2002, Julie Ann Walberg was
appointed special administrator for Yox’s estate and sued St. Francis for
negligence and substandard care. St. Francis responded that the claim should be
dismissed because the statute of limitations had already run out.
The
circuit court concluded that the applicable statute of limitations was § 893.22
and, because more than a year had passed since Yox’s death, the court dismissed
the claim.
Walberg
appealed, and the Court of Appeals - relying in part upon an 1887 case from Wood
County that involved a dispute over a dead man’s bank account - reversed the
circuit court. The Court of Appeals concluded that, because Yox was mentally
disabled, the statute governing claims on her behalf is § 893.16, and that §
893.22 simply acts to lengthen the time she was given under § 893.16 by tacking
on an extra year, and that therefore, under any calculation, the claim was
timely.
In
the Supreme Court, St. Francis argues that § 893.16 is in force only when a
person is alive, and at the time of the individual’s death, the one-year period
set up in § 893.22 applies. The Supreme Court will clarify how a limitation
period is to be calculated when a disabled person dies.
WISCONSIN SUPREME COURT
TUESDAY, MARCH 1, 2005
1:30 p.m.
03-1959 Patricia
A. Steiner, et al v. Wisconsin Mutual Ins. Co., et al
This is a review of a decision of the
Wisconsin Court of Appeals, District IV (headquartered in Madison), which
affirmed a ruling of the Adams County Circuit Court, Judge Duane Polivka
presiding.
This
case involves a woman who was injured at a resort, and a dispute about who
owned the resort at the time of the incident. The Supreme Court will clarify
the point at which the title to a property that is subject to a strict
foreclosure transfers to the lender.
The strict foreclosure process is based on the premise
that the lender owns the property until the mortgage has been paid in full. If
the borrower breaks any of the conditions established in the mortgage prior to
the time the loan is paid in full, s/he will lose any right to the property and
the lender will either take possession of the property or arrange for its sale.
However, Wisconsin law also provides for a redemption period following the
judgment of foreclosure, which gives the purchaser one final opportunity to
come up with the required payment. In this case, the judge set a 30-day
redemption period and then several weeks passed before the final judgment was
entered. The woman was injured on the property in question in the time between
the end of the redemption period and the entry of the final foreclosure
judgment, and the question for purposes of insurance coverage is: who owned the
property during this time?
Here
is the background: In 1954, Patricia and John Steiner and John’s brother,
Robert, purchased land near Fort McCoy on Castle Rock Lake and built several
cabins, a bait shop, a bar, and a trailer park. In 1995, the three Steiners
transferred their interest in the property to the Steiner Corporation, which
was controlled by their sons, John Jr., Patrick, and David Steiner. Then, in
1999, Robert and Patricia Steiner filed a foreclosure action because the Steiner
Corporation had failed to make its monthly payments.
As
the foreclosure proceeded, the resort began to shut down for the winter. On
Oct. 15, 1999, Robert was doing maintenance on the cabins’ waterlines and
removed a cover on a dry well, covering the hole with a sheet of Styrofoam.
Patricia was walking near the hole, lost her footing, and fell in. Patricia was
injured after the redemption period had run, but four days prior to the trial
court’s granting of the strict foreclosure. Patricia filed a claim to recover
the costs of her medical care from Wisconsin American Mutual Insurance Company,
the Steiner Corporation’s insurer, but the coverage was denied because the
insurance company concluded that the corporation did not own the property on
the date of the accident. The circuit court agreed, finding that the title had
automatically transferred at the end of the redemption period in spite of the
lack of a final judgment.
The
Court of Appeals affirmed, concluding that the corporation had not owned the
resort on the date of Patricia’s injuries and that therefore it could not be
held liable.
Now,
the Supreme Court will look at this case and clarify when a strict foreclosure
judgment becomes final.
WISCONSIN SUPREME COURT
WEDNESDAY, MARCH 2, 2005
9:45 a.m.
03-1907 Village
of Hobart v. Brown County, et al
This is a review of a decision of the
Wisconsin Court of Appeals, District III (headquartered in Wausau), which
reversed a ruling of the Brown County Circuit Court, Judge Peter J. Naze
presiding.
This
case involves a dispute over construction of a $1.3 million waste transfer
station in the Village of Hobart. The Supreme Court will decide whether the
project should move forward.
Here
is the background: Brown County receives and disposes of solid waste for 13
municipalities including the Village of Hobart. Because of increased volume,
the county decided to build a waste transfer station where hauling companies, businesses, and residents could
bring their waste. The waste then would be consolidated at the station and
taken to landfills. The county proposed building the waste station on a site
that, until 1998, had been a landfill. Since then, the land has been used as a
recreation area and dog park.
County
representatives met with village officials and were informed that the county
did not need approval to build the waste transfer station because the site was
zoned as “public use” (this representation later would become an issue, as the
village zoning ordinances do not contain a “public use” classification). The
Hobart Village Board voted unanimously to accept the county’s proposal to build
the transfer station, and both sides moved forward. The county hired an
engineering firm and secured approval from the Department of Natural Resources,
and the village drafted a document called a Memorandum of Understanding that
set forth its approval of the station and its commitment to negotiate a 30-year
contract. Representatives of the village and the county signed the document,
which provided that the county would pay the village $14,000 per year for the
right to operate the waste station on that site.
In
August 2002, six months after discussions between the county and village had
begun, the Village Board sent a letter to all residents of the village
informing them that the dog park would become a waste transfer station.
Residents responded with anger, and the Village Board revisited its position on
the waste station. At a meeting during which it was expected to approve a sewer
permit for the project, the board instead rejected the permit and followed that
action with a letter informing the county that it was rescinding the Memorandum
of Understanding. At this point, the county had spent about $130,000 on the
project and sought advice from its attorneys on whether to move forward without
the permit from the village. The attorneys advised proceeding with the project,
and construction began.
Two
weeks after the start of construction, the village went to court seeking to
stop the waste station. The village argued that the facility violated its
zoning code, which, it now said, classified the land for agricultural use only.
The court dismissed the village’s claim, concluding that the village’s
Memorandum of Understanding essentially trumped the zoning code.
The
village appealed and won, with the Court of Appeals concluding that the waste
station violated the zoning code and therefore was illegal in spite of anything
the village might have agreed to.
The
Supreme Court is expected to determine whether the zoning ordinances, or the
village’s incorrect representations to the county, will carry the day.
WISCONSIN SUPREME COURT
WEDNESDAY, MARCH 2, 2005
10:45 a.m.
04-0723 In re the Termination of Parental
Rights to Chezron M.: State v. James P.
This is a
review of a decision of the Wisconsin Court of Appeals, District I
(headquartered in Milwaukee), which affirmed a ruling of the Milwaukee County
Circuit Court, Judge Joseph R. Wall presiding.
This case involves the termination
of a father’s rights to his daughter, Chezron M., who was born in 1995. The
Supreme Court will clarify the definition of “parent” and decide whether James
P.’s rights were properly terminated based on evidence that he had abandoned
his daughter, even though the abandonment occurred before DNA testing proved he
was the child’s parent.
State law provides several grounds
for termination of parental rights. One of them is abandonment; that is, that
the child “has been left by the parent with any person, the parent knows or could
discover the whereabouts of the child and the parent has failed to visit or
communicate with the child for a period of 6 months or longer.” On this ground,
the circuit court terminated James’ rights to Chezron
James does not dispute that he had
no contact with Chezron; rather, he argues that he was not a parent under the
law until the results of a DNA test revealed in early 2002 that he was
Chezron’s father. State law gives three methods by which a parent can be
legally recognized: (1) when the husband and wife biologically conceive a
child; (2) when a wife conceives a child by artificial insemination; and (3)
when the husband and wife adopt a child. It gives several additional ways that
a parent can be recognized when a child is born outside of wedlock: (1) the
person can adopt the child; (2) the person can marry the child’s parent; (3) a
father can acknowledge his paternity; or (4) a father can be adjudicated
(declared by a court) to be the biological parent. James argues that he was not
Chezron’s parent in the eyes of the law until he was adjudicated as such in
2002.
The Court of Appeals was not
persuaded by this argument, and concluded that James had always been Chezron’s
father regardless of when this was formally adjudicated. The Court of Appeals
wrote:
…the fact of biological parenthood does not turn on whether it is
recognized, found, or adjudicated, any more than the fact that a tree has
fallen in the forest depends on someone’s perception of the crashing sound, or,
in another context gravity’s existence depended on Sir Isaac Newton’s
formulation of its principles.
In the Supreme Court, James argues that adjudication of paternity
will become meaningless if the Court of Appeals’ conclusion is allowed to
stand, and he maintains that the Legislature’s clear intent, through its
separate mention of adjudication as a way to be recognized as a child’s parent,
was to distinguish adjudication from assumed-from-birth biological parenthood.
Now, the Supreme Court will clarify the definition of “parent” under
Wisconsin law.
WISCONSIN SUPREME COURT
WEDNESDAY, MARCH 2, 2005
1:30 p.m.
03-1690-CR State
v. Tyrone L. DuBose
This is a review of a
decision of the Wisconsin Court of Appeals, District III (headquartered in
Wausau), which affirmed a conviction in Brown County Circuit Court, Judge Sue
E. Bischel presiding.
This case centers on a procedure that police sometimes use to identify
crime suspects. The procedure is called a “show-up,” and involves letting an
eyewitness look at an arrestee very soon after a crime has been committed and
asking the eyewitness if the arrestee is the person who committed the crime.
The Supreme Court will decide whether this method of identification is impermissibly
suggestive, as the defendant in this case argues.
Here is the background: On Jan. 9,
2002, Timothy Hiltsley left the Camelot Bar in Green Bay with a friend and met
two men on the street whom he thought he recognized. Hiltsley had been drinking
and “had a buzz on.” The group went back to Hiltsley’s apartment to smoke
marijuana. Shortly after they entered the apartment, one of the men whom they
had met on the street pulled a gun on Hiltsley and ordered him to empty his
wallet. Hiltsley complied, and the two men fled on foot.
A chase began and soon police were
summoned. Hiltsley described the men as African-American, one about 5’6” and
one a bit taller. A neighbor who had seen two men run out of Hiltsley’s home
told police that one of them had been wearing a large flannel shirt with a
hood. One officer spotted two men walking about a half block from Hiltsley’s
apartment. He could not determine their race, but saw that one was wearing a
large, hooded shirt. When he approached them, they ran. The canine unit was
called, and a dog sniffed out a man - Tyrone L. DuBose - in a backyard. He told
the officer he was walking home from his girlfriend’s house, and the officer
later testified he was unsure whether DuBose was one of the men he initially
had spotted. DuBose was not wearing a hooded shirt.
The officer handcuffed DuBose and
placed him in a squad car and Hiltsley was permitted to view him through the
window. Hiltsley said he was “98 percent” sure the man in the car was the one
who robbed him. Hiltsley again viewed DuBose through a two-way mirror at the
police station and again said he was the robber.
DuBose was charged with armed
robbery and he filed motions challenging the use of the identification
procedure, which he called impermissibly suggestive, and the arrest itself -
which he argued was without probable cause. His motions were denied and he was
convicted after a jury trial.
In the Court of Appeals, DuBose
renewed his argument that the show-ups were too suggestive and that the results
of them should not have been admitted into evidence. The Court of Appeals
disagreed, affirming DuBose’s conviction.
Now, the Supreme Court will
reexamine the standards for eyewitness identification to determine whether
show-ups are permissible.
WISCONSIN SUPREME COURT
THURSDAY, MARCH 3, 2005
9:45 a.m.
03-0801 Gerald
Grams, et al v. Milk Products, Inc., et al
This is a review of a decision of the
Wisconsin Court of Appeals, District IV (headquartered in Madison), which
affirmed a ruling of the Rock County Circuit Court, Judge John W. Roethe
presiding.
This case focuses on the use of the
economic loss doctrine, which says that when people are involved in a business
relationship and money is lost, one cannot bring a tort lawsuit against the
other to recover the money. Torts are reserved for acts and omissions that
result in injuries. Economic losses are remedied instead through enforcement of
the terms of the business contract, with certain exceptions (for example, for
fraud) that have been carved out in the courts.
In this case, the Supreme Court is
expected to decide whether a farmer may sue the corporations that manufactured
and marketed a milk replacer that allegedly injured and killed some of his
calves.
Here is the background: Gerald and Joliene
Grams have been raising calves since 1992. Between 1999 and 2000, the Grams
raised about 6,000 calves. They purchase them at three-days-old, raise them to
about the age of four months, and sell them. In the first two or three weeks of
their lives, calves develop their immune systems. During that period, they are
fed milk replacer.
For several years, the Grams had purchased
Half Time medicated milk replacer, which is manufactured by Milk Products,
Inc., from the retailer Cargill. Then, in November 2000, the Grams asked the
Cargill salesman whether there was a less expensive milk replacer on the market
and the salesman suggested a version of Half Time that did not have medication
added. The Grams allege that the Cargill salesman told them that the
non-medicated version was in widespread use, but they later learned it was a
custom mix and they were the only people to whom it had ever been sold.
Further, it was not tested to ensure the proper levels of nutrients.
Shortly after they switched to the
non-medicated Half-Time formula, the Grams noticed their calves were getting
sick and dying at an unusually high rate. They eventually took the calves off
the Half-Time product and found that they began to gain weight and develop
normally as did the calves that were raised before the switch to the new
formula. The Grams, in their filings with the Supreme Court, maintain that the
new formula was nutritionally inadequate and that the lack of medication in it
was not was caused the problems.
The Grams sued Milk Products and Cargill
for breach of warranty, negligence, intentional misrepresentation, and more.
The circuit court dismissed their claims, concluding that they were barred by
the economic loss doctrine and that the Grams had failed to prove fraud. The
Grams appealed, and the Court of Appeals affirmed the circuit court, concluding
that the Grams had not proved that they suffered any harm beyond the economic
losses resulting from the damage to the calves.
The Supreme Court will take another look
at the case and will determine whether the Grams will be allowed to proceed
with a lawsuit against the manufacturer and distributor of this allegedly
faulty product.
WISCONSIN SUPREME COURT
THURSDAY, MARCH 3, 2005
10:45 a.m.
03-0113-CR State
v. Antwan B. Manuel
This is a review of a decision of the
Wisconsin Court of Appeals, District IV (headquartered in Madison), which
affirmed a ruling of the Dane County Circuit Court, Judge Stuart A. Schwartz
presiding.
This case arises from an attempted first-degree intentional
homicide and focuses on whether the defendant’s constitutional right to
confront his accusers was violated when the judge allowed a hearsay statement
into evidence under the “statement of recent perception” exception to the
hearsay rule. State law defines a statement of recent perception as follows:
Wis.
Stat. § 908.045(2):
A
statement, not in response to the instigation of a person engaged in
investigating, litigating, or settling a claim, which narrates, describes, or
explains an event or condition recently perceived by the declarant, made in
good faith, not in contemplation of pending or anticipated litigation in which
the declarant was interested, and while the declarant’s recollection was clear.
This
exception, like other exceptions to the hearsay rule, comes into play when the
“declarant” mentioned in the statute is unavailable to testify in person.
Here
is the background: Shortly after midnight on June 25, 2000, a group of men were
standing around in the space between the sidewalk and the curb in a City of
Madison neighborhood. One of the men, later identified as Derrick Stamps,
flagged down a passing motorist. The driver stopped, and Stamps began talking
with him through the driver’s-side window. As they talked, a man later
identified as Antwan B. Manuel walked up to the car, reached around Stamps, and
shot the driver in the shoulder. Although the bullet lodged in his neck, he
lived and gave police the names of his assailants.
Both
Manuel and Stamps were arrested. Stamps initially was charged as party to a
crime but those charges were later dismissed. Still, he invoked his Fifth
Amendment privilege and refused to testify at Manuel’s trial on charges of
attempted first-degree intentional homicide, aggravated battery, endangering
safety, possession of a firearm by a felon, and bail jumping.
Stamps’
girlfriend, Anna Rhodes, testified at trial that she could not recall what
Stamps had told her about the shooting. However, one of the arresting officers
was permitted to recount what Rhodes had told him at the time of the arrest:
that Stamps indicated Manuel “came out of nowhere” and shot the driver of the
car. This piece of testimony eventually formed the centerpiece of Manuel’s
appeal. He was convicted on all counts and sentenced to 14 years’ initial confinement
and eight years’ extended supervision.
Manuel
appealed, and the Court of Appeals affirmed his conviction.
Now,
the Supreme Court will analyze the facts and determine whether the officer’s
testimony about what Rhodes told him about her conversation with Stamps was
properly admitted.
WISCONSIN SUPREME COURT
THURSDAY, MARCH 3, 2005
1:30 p.m.
03-0580 Gregory
G. Phelps, et al v. Physicians Insurance Co. of Wis., Inc. et al
This is a review of a decision of the
Wisconsin Court of Appeals, District I (headquartered in Milwaukee), which
reversed a ruling of the Milwaukee County Circuit Court, Judge Michael P.
Sullivan presiding.
This is an obstetric medical malpractice case. The
questions before the Supreme Court include (1) whether a first-year resident
physician is to be held to the same standard of care under the law as a fully
licensed physician, and (2) whether the defendants (the doctor and his insurer)
were wrongly barred from trying the case to a jury.
Here
is the background: Marlene Phelps was pregnant with twin boys Kyle and Adam and
had been placed on strict bed rest at St. Joseph’s Hospital. On the morning of
Nov. 24, 1998, she awakened with pain. A first-year resident, Matthew
Lindemann, M.D., was on call. He performed a number of tests but did not call
the senior resident or attending physician and did not move Phelps to the
labor/delivery area for closer monitoring. He allegedly assured her that the
babies were fine and ordered her a shot of painkiller. A short time later,
Phelps found Adam’s feet beginning to poke out. He was born at 7:20 a.m. and
declared dead 16 minutes later. Kyle survived. Experts testifying at trial
indicated that Adam would have lived had the problem been diagnosed and a
Caesarian section performed.
The
Phelpses sued Lindemann and the hospital in April 2000. The defendants demanded
a jury trial and were provided with a standard scheduling order that noted they
were required to pay a jury fee of $72 on or before Sept. 1, 2001, or the jury
trial would be presumed waived. They did not pay the jury fee until Sept. 13,
2001, but the case was nonetheless set for a jury trial until the Phelpses’
attorney discovered the discrepancy and - two days before the trial was to
begin - asked the judge to cancel the jury and hear the case himself (this is
called a bench trial). Defense counsel asked that the missed deadline be
excused, explaining that the attorney handling the case when the fee was due
had been diagnosed with kidney cancer and that the case file had been passed
among colleagues who were attempting to cover it for him. The judge’s mind was
not changed, and the case was tried to the court rather than a jury.
The
court found in favor of the Phelpses and awarded the couple damages of just over
$900,000 and each of their two children (the surviving twin and an older child)
damages in the amount of $45,000.
Lindemann
appealed, and the Court of Appeals reversed after concluding that the missed
jury fee deadline was excusable neglect and that the trial court had held
Lindemann to a standard of care applicable only to fully licensed physicians,
rather than that applicable to first-year residents. The Court of Appeals sent
the case back to the trial court, instructing it to hold a jury trial. This has
not yet occurred.
Now, the Phelpses have come to the Supreme Court, which will analyze the questions that this case presents and ultimately decide whether the verdict in the plaintiffs’ favor will stand.
WISCONSIN SUPREME COURT
THURSDAY, MARCH 10, 2005
9:45 a.m.
03-1794 Dane
County v. Kenneth R. McGrew
This is a review of a decision of the
Wisconsin Court of Appeals, District IV (headquartered in Madison), which
affirmed a conviction in Dane County Circuit Court, Judge C. William Foust presiding.
This case involves a man who received a
speeding ticket and was given a trial before a six-person jury. He wanted a
full, 12-person jury. The Supreme Court will determine whether the state
statute that establishes six-person juries in civil cases and in cases
involving civil forfeitures violates a defendant’s right to a trial by jury.
Here
is the background: On May 2, 2002, Kenneth R. McGrew was traveling west on
Highway 12 when, near the Gammon Road exit, he was pulled over and issued a
ticket for traveling 79 miles per hour in a 55 zone. The deputy who pulled him
over had been traveling on the shoulder of the road in a police pick-up truck
that was not equipped with a certified police speedometer. The deputy visually
estimated McGrew’s speed and then checked it with a radar device that McGrew
later contended could not have been accurate.
After
McGrew requested a jury trial, the charge was amended to 80 miles per hour,
which dramatically raised the stakes by pushing the charge into a
classification that would result in the suspension of McGrew’s license. He was
convicted by a six-person jury, and he raised a variety of issues on appeal,
including the reliability of the evidence, the credibility of the officer’s
testimony, and the size of the jury.
The
Court of Appeals affirmed McGrew’s conviction but did not deal with the
jury-size argument, noting that this was a question for the Supreme Court.
In the Supreme Court, McGrew notes that
six-person jury trials in criminal misdemeanor cases have been ruled
unconstitutional, and suggests that defendants in civil forfeiture trials
should have the same right to a trial by a 12-person jury. In deciding this
case, the Court is expected to analyze the language of the law alongside the
constitutional provision that guarantees the right to a jury trial in a civil
forfeiture case.
WISCONSIN SUPREME COURT
THURSDAY, MARCH 10, 2005
10:45 a.m.
03-2097-CR State
v. Peter A. Fonte
This is a review of a decision of the
Wisconsin Court of Appeals, District II (headquartered in Waukesha), which
reversed a conviction in Walworth County Circuit Court, Judge Robert J. Kennedy
presiding.
This
is a homicide case stemming from a motorboat incident allegedly caused by a
drunken boater. The question before the Supreme Court is how a judge may
instruct a jury before sending the jury out to deliberate, when the case
involves a blood-alcohol test that was given more than three hours after the
incident.
Under
Wisconsin law, chemical tests of blood, breath, and urine that are conducted within
three hours of an incident are presumed valid. Tests conducted after that
three-hour window has closed are only admissible in court if they are paired
with expert testimony that establishes their value. In this case, the
blood-alcohol test was conducted on defendant Peter A. Fonte after more than
three hours had passed, but the results were admitted into evidence along with
testimony from an expert witness who said the test results showed Fonte must
have been legally drunk at the time of the incident.
Here
is the background: On July 16, 2001, several days after attending a concert at
Alpine Valley, Fonte and a group of friends gathered in Lake Geneva and rented
a motorboat. They strung together a float out of lifejackets and began towing
one another behind the boat. At one point, Fonte was in the boat and most of
the others were in the water. The boat had been drifting but then began to move
toward the swimmers. One of the swimmers later testified that she dove
underwater to avoid being hit, and felt the boat scrape her side. The swimmers
saw blood in the water and realized that one of the group - Traci Paladino -
was missing. Five months later, her body was recovered. She had been killed by
the boat’s propeller.
Immediately
after the incident, as divers searched for Paladino, police interviewed the
boaters and Fonte allegedly identified himself by a false name and told a
deputy sheriff that he had not been drinking. The officer smelled alcohol on
him and noted that his eyes were bloodshot and his speech impaired. At about 9
p.m., more than three hours after the incident, Fonte was given a Breathalyzer
test that showed an alcohol level of .06. Fonte told the officer he thought he
had put the boat into neutral, and that he had walked away from the controls.
The officer placed Fonte under arrest and another test was conducted - this
time a blood-alcohol test - at about 10:42 p.m., or seven hours after the
incident. The test showed an alcohol level of .052 percent.
Fonte
was charged with by intoxicated operation of a motor vehicle, which required
the State to prove that he was intoxicated at the time he ran over Paladino
with the boat. The judge permitted the jury to hear about the chemical tests
that showed the alcohol in his system hours after the incident. Fonte’s defense
rested on the theory that he had had whiskey immediately before the incident,
so that he was not drunk when he ran over Paladino because the alcohol had not
yet entered his bloodstream.
Before
sending the jury off to deliberate, the judge gave a standard jury instruction
that he had modified to eliminate any reference to the three-hour window. Fonte
was convicted and appealed, and the Court of Appeals reversed his conviction
after concluding that the trial court’s modification of the jury instruction
was confusing. The case was sent back for a new trial, which is pending.
In
its petition for review by the Supreme Court, the State underscores the
importance of this case by pointing out that, “with thousands of drunk driving
arrests in this state each year under a myriad of factual circumstances that
may delay detection in investigation, it is hardly uncommon for blood, breath
or urine samples to be taken from persons more than three hours after vehicle
operation.”
In
a decision that will have broad impact, the Supreme Court is expected to
clarify how a jury is to be instructed when chemical samples are taken outside
of the three-hour window.
WISCONSIN SUPREME COURT
THURSDAY, MARCH 10, 2005
1:30 p.m.
03-2934 State v. Michael S., Jr.
This is a
review of a decision of the Wisconsin Court of Appeals, District I
(headquartered in Milwaukee), which affirmed an order of the Milwaukee County
Circuit Court, Judge Christopher R. Foley presiding.
This
case involves a teenager who was adjudicated delinquent, placed on supervision
for a year, and then - after the year was up - had the supervision extended and
revised. The question before the Supreme Court is whether a trial court judge
may -after the expiration of an order - reach back in time to extend the
deadline for acting in a case.
Here
is the background: Michael S., who will turn 18 next month, was found
delinquent (on charges of possession of a dangerous weapon by a child) after a
hearing in Milwaukee County Children’s Court on Oct. 23, 2001. At the time of
the adjudication, he was 14.
The judge placed Michael under the supervision of the
Milwaukee County Department of Human Services until Oct. 23, 2002. About a
month before Michael’s supervision was due to end, the State filed a petition
to extend and revise it, and to change his placement from his family’s home to
Ethan Allen School. On Oct. 2, 2002, Michael informed the court that he planned
to contest the proposed extension of his supervision. He asked for a quick
hearing and Judge Christoper R. Foley replied, “A quick hearing is a foreign
concept here.” Michael’s attorney told the court he wanted to explore hiring a
psychologist to examine Michael, and the court set another hearing for Oct. 24,
2002. Although no one realized it at the time, this was one day after the
supervision was due to expire.
At the Oct. 24, 2002 hearing, it was noted that the
supervision had expired and that the court no longer had authority over
Michael. After ascertaining that no extension of time had been ordered, the
judge decided that the Oct. 2, 2002 decision to allow the defense time to
obtain a psychological exam for Michael, coupled with the crowded nature of the
court calendar, amounted to an informal extension of the time limit. He
formalized this with an order retroactive to Oct. 23, 2002 extending the
court’s supervision of Michael for 30 days. At a subsequent hearing, the court
granted the State’s motion to extend Michael’s supervision for an additional
year and to send him to the Ethan Allen School.
Michael appealed, and the Court of Appeals affirmed the
circuit court, concluding that the law does not require that a formal request
for an extension be filed prior to the original expiration date, and that the
judge’s indication that the calendar was full and no quick hearing could be
held was sufficient to extend the time.
The
Supreme Court will decide if the judge’s retroactive order to extend Michael’s
supervision was lawful.