Headlines archive

2016

Wisconsin Supreme Court accepts eight new cases

Madison, Wisconsin - November 15, 2016

The Wisconsin Supreme Court has voted to accept eight new cases and acted to deny review in a number of other cases. The case numbers, issues, and counties of origin of granted cases are listed. Hyperlinks to Court of Appeals' decisions are provided where available. The synopses provided are not complete analyses of the issues presented. More information about any particular case before the Supreme Court or Court of Appeals can be found on the Supreme Court and Court of Appeals Access website.

2015AP1877-CR State v. Ozuna
Supreme Court case type: Petition for Review
Court of Appeals: District II
Circuit Court: Walworth County, Judge Kristine E. Drettwan, affirmed
Long caption: State of Wisconsin, Plaintiff-Respondent, v. Lazaro Ozuna, Defendant-Appellant-Petitoner.

Issues presented: This case examines the expungement statute, due process rights and the requirements for determining whether a defendant has successfully satisfied the conditions of probation for expungement purposes.

The Supreme Court reviews two issues:

  • Whether to "satisf[y] the conditions of probation" under Wis. Stat. § 973.015(1m)(b), a probationer must perfectly comply with every probation condition, or whether under State v. Hemp, 2014 WI 129, 359 Wis. 2d 320, 856 N.W.2d 811, it is enough that the probation agent determines that the probationer has "successfully completed . . . probation."
  • Whether defendant Lazaro Ozuna's procedural due process rights were violated when the circuit court failed to provide him with notice or a hearing before denying expungement.

Some background: In May 2014, Ozuna pled guilty to two misdemeanors for criminal damage to property and disorderly conduct. The circuit court imposed and stayed jail terms and placed Ozuna on probation for a period of one year. The court imposed a number of conditions of probation, including that Ozuna had to pay the DNA surcharge and court costs, that Ozuna could not possess weapons, and that he could not possess or consume alcohol or illegal drugs.

The judgment of conviction also contains the following provision regarding expungement of the convictions: "IT IS ORDERED, pursuant to Wis. Stat. § 973.015, that upon successful completion of the sentence imposed, as evidenced by receipt by this Court of a Certificate of Discharge from the probationary authority, AND WITH NO VIOLATIONS OF PROBATION OR LAW ENFORCEMENT CONTACTS RISING TO THE LEVEL OF PROBABLE CAUSE, the Clerk of Court shall issue an order expunging the record."

On June 5, 2015, Ozuna's probation agent filed a document entitled "Verification of Satisfaction of Probation Conditions for Expungement," attached to which was a "Balance Inquiry" showing that Ozuna had paid $600 and had a balance due of $1,042.05. The verification form contained check boxes with apparently conflicting indications about whether Ozuna had met all of the requirements of his probation. One box was checked to indicate he successfully completed his probation, while checked boxes on other parts of the form indicated he had not met all the court-ordered conditions of probation.

Walworth County Circuit Court Judge Kristine E. Drettwan denied Ozuna's expungement on June 12, 2015.

Ozuna appealed unsuccessfully, arguing that according to the Department of Corrections' (DOC) verification form, he had successfully completed his sentence (his one-year term of probation) and was therefore entitled to automatic expungement.

The Court of Appeals focused on whether Ozuna had "successfully completed" his sentence, as that phrase is defined in Wis. Stat. § 973.015(1m)(b): "A person has successfully completed the sentence if the person has not been convicted of a subsequent offense and, if on probation, the probation has not been revoked and the probationer has satisfied the conditions of probation."

The Court of Appeals stated that even where a person completes probation without revocation and does not have a new conviction, the person still fails to complete probation successfully if the person does not satisfy all of the conditions of probation.

The Court of Appeals said the DOC verification noted that Ozuna had been cited for underage drinking after giving a preliminary breath test of 0.102 percent. This violated the condition that he not consume alcohol while on probation. Consequently, the Court of Appeals concluded that Ozuna had not been entitled to expungement.

Ozuna argues that the automatic denial of expungement based solely on a blind acceptance of the DOC's representations on the verification form violated his due process rights. Ozuna also asserts that a probationer does not need to comply with 100 percent of the conditions to successfully complete probation and be entitled to expungement.

A decision by the Supreme Court could build on its decision in Hemp by clarifying what is meant by satisfying all conditions of probation in the expungement statute.

Justice Shirley S. Abrahamson did not participate in the order granting review. Justice Ann Walsh Bradley dissents on procedural grounds.

2016AP46-FT Waukesha County v. J.W.J.
Supreme Court case type: Petition for Review
Court of Appeals: District II
Circuit Court: Waukesha County, Judge William Domina, affirmed
Long caption: In the matter of the mental commitment of J.W.J.: Waukesha County, Petitioner-Respondent-Respondent, v. J.W.J., Respondent-Appellant-Petitioner.

Issue presented: Should the standard adopted in Fond du Lac County v. Helen E.F., 2012 WI 50, 340 Wis. 2d 500, 814 N.W.2d 179 for determining whether an individual is a proper subject for treatment under Chapter 51 be modified?

Some background: J.W.J. suffers from paranoid schizophrenia. He has been diagnosed with that condition since at least 1990 and has at various times since been subject to Wis. Stat. ch. 51 involuntary commitment orders.

To involuntarily commit a person, a county must show that the person is mentally ill and dangerous. See Wis. Stat. § 51.20(1)(a)1.-2., (13)(e). The same standards apply to extensions of the commitment, except the county may satisfy the showing of dangerousness by demonstrating that "there is a substantial likelihood, based on the subject individual's treatment record, that the individual would be a proper subject for commitment if treatment were withdrawn." Sec. 51.20(1)(am). Whether the county has met its burden is a mixed question of law and fact.

J.W.J.'s most recent commitment began in 2009 and has been extended each year since. The Waukesha County Circuit Court held a hearing on the county's extension petition on July 7, 2015. The sole witness called by the county was Dr. Richard Koch, a licensed psychologist, who had been appointed at various times since 1990 to evaluate J.W.J., including in connection with the county’s most recent extension petition. Koch was unable to personally examine J.W.J. because J.W.J. refused to meet, but he reviewed J.W.J.'s treatment records and the social worker's report. Koch testified that his record review was sufficient to allow him to reach conclusions to a reasonable degree of certainty. Koch testified that in his opinion J.W.J. was dangerous as that term was defined in the statute.

The circuit court concluded that the county had met its burden of proof that J.W.J. was mentally ill, was a proper subject of treatment, and was dangerous because there was a substantial likelihood that he would be a proper subject for commitment if treatment would be withdrawn. The court ordered that J.W.J.'s commitment be extended for one year and that the maximum level of treatment would be "outpatient with conditions." The court also authorized involuntary medication and treatment. The Court of Appeals affirmed, concluding that Koch's testimony about J.W.J.'s condition and the effect of medication on his symptoms was sufficient to meet the standard adopted in Helen E.F.

In Helen E.F., the Wisconsin Supreme Court adopted the standard to determine whether an individual is a proper subject for treatment under Wis. Stat. ch. 51, ruling in part:

If treatment will "maximize the individual functioning and maintenance" of the subject, but not "help in controlling or improving their disorder," then the subject individual does not have rehabilitative potential, and is not a proper subject for treatment. However, if treatment will "go beyond controlling . . . activity" and will "go to controlling the disorder and its symptoms," then the subject individual has rehabilitative potential, and is a proper subject for treatment.

J.W.J. argues that Waukesha County failed to prove by clear and convincing evidence that J.W.J. is a proper subject for treatment under WIS. STAT. ch. 51. He contends the Helen E.F. standard is "confusing, difficult to apply, and leads to inconsistent results as it depends on the word choice of the testifying doctors."

J.W.J. contends that the standard developed in Helen E.F. resulted from the type of illness present in that case—Alzheimer's disease. He argues it is well-settled that while some symptoms of that disease can be ameliorated, the vast majority of the symptoms do not respond at all to treatment. Thus, there was little chance that Helen E.F. would improve with treatment.

The county responds that the standard is not intended to direct circuit courts on how to address any particular type of symptom, but is designed to address how to consider symptoms generally. It says that if a particular person's symptoms are behavioral and treatment positively affects those symptoms and the underlying disorder, then the standard for rehabilitation is met and the commitment should be extended.

The county argues that the application of the Helen E.F. standard has not been shown to be problematic or confusing. In the Helen E.F. case itself, the court made clear that while the treatment would have controlled some of Helen E.F.'s symptoms, that was not sufficient because the treatment must "go to controlling [the] disorder and its symptoms." 340 Wis. 2d 500, ¶36. The county says that this reasoning clearly delineated the line between cases appropriate for commitment under Wis. Stat. ch. 51 and those that are not.

Justice Shirley S. Abrahamson did not participate in the order granting review. Justice Ann Walsh Bradley dissents on procedural grounds.

2014AP1623-CR State v. Nieves
Supreme Court case type: Petition for Review
Court of Appeals: District I
Circuit Court: Milwaukee County, Judge Jeffrey A. Wagner and Judge Richard J. Sankovitz, reversed and cause remanded for further proceedings
Long caption: State of Wisconsin, Plaintiff-Respondent-Petitioner, v. Raymond L. Nieves, Defendant-Appellant-Respondent.

Issues presented: This homicide case examines issues relating to the Sixth Amendment's confrontation clause in light of several U.S. Supreme Court decisions. More specifically, the state raises the following issues:

  • Did the admission of Johnny Maldonado's nontestimonial statement at his and Raymond Nieves's joint trial violate Nieves's Sixth Amendment right to confront the witnesses against him given that, after the change in confrontation law initiated by Crawford v. Washington, 541 U.S. 36 (2004), "only testimonial statements are excluded by the Confrontation Clause?" Giles v. California, 554 U.S. 353, 376 (2008).
  • Even if Bruton v. United States, 391 U.S. 123 (1968) prohibits the admission of a non-testifying codefendant's nontestimonial statements, did the admission of Maldonado's statement at trial violate Nieves's confrontation rights when Ramon Trinidad's testimony about the statement did not say that Nieves was involved in the crimes, but instead used "they" to refer to the perpetrators?
  • Was any Bruton violation harmless error in light of the strong evidence against Nieves?
  • Was the admission of the "Boogie Man" testimony harmless error?

Some background: Raymond Nieves and Johnny Maldonado were jointly tried and each convicted in 2012 of first-degree intentional homicide and attempted first-degree intentional homicide, both as a party to a crime and with the use of a dangerous weapon.

The convictions stemmed from a 2009 shooting incident in Milwaukee that resulted in the death of Spencer Buckle and in nonfatal injuries to another victim, to whom the Court of Appeals assigned the pseudonym "David," per Wis. Stat. Rule § 809.19(1)(g).

"David" told police officers that before the shootings, he and Buckle had been with Nieves and Maldonado, who had suggested they drive from Kenosha to Milwaukee to hang out with other Maniac Latin Disciple gang members. "David" said that when they arrived in Milwaukee, he, Buckle, Nieves, and Maldonado exited the vehicle and began walking in an alley. "David" told officers that while they were walking in the alley, he heard a gunshot and saw Buckle fall to the ground. "David" said he dropped to the ground and played dead when he heard more gunshots. "David" said that after falling to the ground, he felt a pain in his left hand and he realized he had been shot, and he also felt air pass through his hoodie as bullets went past his head. "David" told the officers that Nieves had shot Buckle and that Maldonado had shot at him.

The trial court denied a motion made by Nieves to sever his case from Maldonado's on grounds that the state's witness, Ramon Trinidad, intended to testify about a confession that Maldonado allegedly made to him concerning Maldonado's involvement in the shootings of Buckle and "David."

Based on written statements of what Trinidad disclosed to the state, portions of Maldonado's alleged confession mentioned, or at least implicitly referenced, Nieves. The state argued that severance was unnecessary because it could couch its questions of Trinidad concerning his conversation with Maldonado in a manner that would preclude any mention of Nieves.

"David" also testified over Nieves's objection, about a conversation he had before the shootings with an individual identified only as "Boogie Man." According to "David," "Boogie Man" had told him that Nieves and Maldonado were planning to kill him.

After trial counsel attempted to point to more specific comments that Maldonado allegedly made about Nieves's involvement, the trial court cut counsel off and stated, without further argument, that it was denying Nieves’s motion to sever and that Nieves could later "raise additional reasons why [the court] should sever [the trials] that aren’t resolved by the proposal . . . to confine . . . questions to [Trinidad] to conversations that involve the defendant against whom those statements would be admissible as the statements of party opponent."

Nieves argued that severance was required under Bruton because the state planned to introduce—and did introduce—testimony from Trinidad that Nieves's codefendant, Maldonado, confessed to the shootings and implicated Nieves by reference. Specifically, Nieves pointed to Trinidad's frequent use of the pronoun "they" in recounting what Maldonado told him.

The State responded by arguing that, under Richardson v. Marsh, 481 U.S. 200 (1987), it was permissible for it to question Trinidad in a way that would omit any reference to Nieves. The state also argued that Trinidad's multiple uses of "they" referred only to Maldonado and the two victims and in no way implicated Nieves.

The central question examined by the Supreme Court is whether Nieves and Maldonado should have been tried together given that: (1) Maldonado did not testify; and (2) the trial court allowed a witness to testify about an alleged confession by Maldonado that arguably implicated both Maldonado and Nieves.

2014AP2581 Parsons v. Associated Banc-Corp.
Supreme Court case type: Petition for Review
Court of Appeals: District I
Circuit Court: Milwaukee County, Judge Jeffrey A. Conen, reversed and cause remanded
Long caption: Taft Parsons, Jr. and Carol Parsons, Plaintiffs-Appellants-Respondents, v. Associated Banc-Corp., Defendant-Respondent-Petitioner, XYZ Insurance Company, Defendant.

Issues presented: The Supreme Court reviews whether, in advance of civil litigation, the right to a jury trial may be contractually waived, and if so, the process and requirements that may be involved in such a waiver. Discussion of this issue concerns Wis. Const. art. I, § 5, which guarantees the right to a jury trial—even for civil litigants—and provides for the waiver of that right "in the manner prescribed by law."

Some background: This case starts in 2012 with Taft Parsons, Jr.'s and Carol Parsons's plan to develop townhomes in their Milwaukee neighborhood, and ends up in a dispute with a bank in a case now before the Supreme Court. In the meantime, the couple faced bankruptcy, foreclosure, and loan repayment demands for work that was never done. The bank originating the loan was also sold to another bank, and the loan officer involved was convicted of bank fraud in a different case in federal court.

Over the course of events, one of the many loan documents presented to the Parsons was a promissory note that contained a jury waiver clause. According to the Parsons' complaint, the Parsons were not allowed any time to review the documents in question or to consult with an attorney before signing them. The complaint also alleges that the loan officer threatened to withdraw the construction loan if Taft Parsons did not promptly sign the documents.

In 2011, five years after Associated Bank acquired State Financial Bank (the bank that originated the loan), the Parsons sued Associated Bank, alleging a pattern of racketeering activity under Wis. Stat. § 946.83, and alleging that the bank negligently hired, supervised, and trained the loan officer that was ultimately convicted of bank fraud related to a different townhouse project. The Parsons alleged that the loan officer's multiple acts of fraud, extortion, and threats occurred under State Financial Bank's watch, for which Associated Bank assumed liability when it purchased State Financial Bank and continued to employ the loan officer in question.

The Parsons' complaint contained a jury demand, as did a subsequent amended complaint. The Parsons paid the jury fee. Associated Bank participated actively in the litigation for nearly three years, filing multiple pleadings with no objection to the jury demand. Three years into the litigation, at the third pretrial conference in 2014, Associated Bank raised an off-the-record objection to the Parsons' jury demand. Later, the bank filed a motion to strike the Parsons' jury demand, arguing that when Taft signed the promissory note with the waiver clause 10 years earlier, the Parsons waived any right to a jury trial involving the bank. The trial court granted Associated Bank’s motion to strike the Parsons' jury demand.

The Court of Appeals granted the Parsons' motion for leave to appeal the trial court's non-final order and stayed the trial. The Court of Appeals held that the Parsons have both a constitutional and a statutory right to a jury trial that can be waived. The Court of Appeals ultimately concluded that the trial court erroneously exercised its discretion when it ignored the bank’s unexplained three-year delay in in asserting its jury waiver claim, as well as the prejudice to the Parsons and the waste of judicial resources caused by changing the mode of trial after years of preparation for a jury.

Associated Bank petitioned this court for review, challenging the Court of Appeals' decision.

Justice Daniel Kelly did not participate.

2015AP491 AllEnergy Corp. v. Trempealeau Co. Environment & Land Use Comm.
Supreme Court case type: Petition for Review
Court of Appeals: District III
Circuit Court: Trempealeau County, Judge Elliott M. Levine, affirmed
Long caption: AllEnergy Corporation and AllEnergy Silica, Arcadia, LLC, Petitioners-Appellants-Petitioners, v. Trempealeau County Environment & Land Use Committee, Respondent-Respondent-Respondent.

Issues presented: This appeal by AllEnergy Corporation and AllEnergy Silica, Arcadia, LLC (AllEnergy) involves a conditional-use zoning permit that was denied by a five-to-three vote by Trempealeau County Environment & Land Use Committee in October 2013.

The Supreme Court reviews the following issues:

  • Do unsubstantiated public comments on the possible negative impacts of a non-metallic mine constitute substantial evidence upon which to base a conditional use permit denial?
  • Should the court adopt a new doctrine that where a conditional use permit applicant has shown that all conditions and standards, both by ordinance and as devised by the zoning committee, have been or will be met, the applicant is entitled to the issuance of the permit?
  • Did the Trempealeau County Environment & Land Use Committee exceed its jurisdiction by denying a conditional use permit based upon generalized concerns, reflecting the exercise of policy-based, quasi-legislative authority by a committee whose members are appointed, not elected?

Some background: If issued, the permit would have allowed AllEnergy to operate a 265-acre frac sand mine in the town of Arcadia. The committee held a public hearing and approved 37 potential conditions for a permit, before ultimately voting against issuing the permit itself.

Committee members voting against the permit stated four primary reasons for their denial: (1) AllEnergy's application was rushed and incomplete; (2) the proposed mine raised environmental concerns; (3) the proposed mine would have adverse effects on the landscape, wildlife, and recreational opportunities available to residents and tourists; and (4) the proposed mine posed risks to the local population’s health, culture, and social conditions.

AllEnergy sought certiorari review of the committee's decision. The trial court denied the certiorari petition, holding that substantial evidence supported the committee’s denial of AllEnergy's application, and that AllEnergy's legal arguments were unpersuasive.

AllEnergy appealed. The Court of Appeals affirmed, emphasizing that the court could not substitute its view of the evidence for the committee's when reviewing the sufficiency of the evidence on certiorari.

AllEnergy petitioned this court for review, and this court accepted review of the three issues listed above.

The Court of Appeals further noted, AllEnergy cannot have an intrinsic property right to operate a frac sand mine given that such mining is a conditional use subject to local governmental approval – not a use as of right.

AllEnergy argues that the committee was without authority to adjudge the completeness of the application and the "record shows that the [permit] application was complete as a matter of law under the [o]rdinance."

AllEnergy asserts the committee's "adopti[on] of 37 conditions of approval was a de jure approval of the [permit]" under the zoning ordinance and it "met the conditions of the [o]rdinance and agreed to be bound by the additional 37 conditions of approval adopted by the [Committee]."

Justice Shirley S. Abrahamson did not participate in this order. Justice Ann Walsh Bradley dissents on procedural grounds.

2015AP643 North Highland, Inc. v. Jefferson Machine & Tool Inc.
Supreme Court case type: Petition for Review
Court of Appeals: District IV
Circuit Court: Jefferson County, Judge William F. Hue, affirmed
Long caption: North Highland Inc., Plaintiff-Appellant-Petitioner, v. Jefferson Machine & Tool Inc. and Steven M. Homann, Defendants, Frederick A. Wells, Defendant-Respondent-Respondent.

Issues presented: This fairly fact-specific case arises from a dispute over a bidding process. The Supreme Court reviews whether:

  • the amount of money that a company bids on a contract is "information" protectable as a trade secret under Wis. Stat. § 134.90(1)(c), when it has value through secrecy meeting the requirements of Wis. Stat. § 134.90(1)(c)(1)-(2)?
  • under the circumstances here, may North Highland Inc. maintain suit against other defendants for any of the following when it covenanted not to sue one defendant, Dwain Trewyn, after Trewyn filed for bankruptcy: (a) conspiracy with Trewyn to violate Trewyn's fiduciary duties to North Highland, (b) aiding and abetting Trewyn's breach of fiduciary duties to North Highland, (c) interference with Trewyn’s contractual or fiduciary obligations to North Highland, or (d) for interference with North Highland’s prospective contract with another person?

Some background: North Highland is a machining and fabrication company that in 2012 began a lawsuit against Frederick Wells; its former employee, Dwain Trewyn; and Jefferson Machine & Tool Inc., a company formed by Wells and Trewyn. North Highland alleged that Trewyn and Wells formed Jefferson Machine to compete with North Highland and that Trewyn formulated a bid for a Tyson Foods Inc. project on behalf of Jefferson Machine while still employed by North Highland. Tyson ultimately awarded Jefferson Machine the contract for its project.

North Highland brought a trade secret misappropriation claim against Trewyn and Wells, alleging that its bid amount for the Tyson project constituted a trade secret; that Trewyn had disclosed North Highland's bid amount to Wells; and that Wells and Trewyn used that information in order for their company to present a more favorable bid to Tyson Foods. North Highland also asserted a claim against Trewyn for breach of fiduciary duty, and a claim against Wells for conspiracy to breach a fiduciary duty.

Trewyn and Wells moved for—and the trial court granted—summary judgment against North Highland's trade secret misappropriation claim. The case therefore proceeded on only North Highland's claims for: (1) breach of fiduciary duty against Trewyn; and (2) conspiracy to breach fiduciary duty against Wells.

Before trial was held on those claims, Trewyn declared Chapter 7 bankruptcy, which resulted in a stay in North Highland's action against Trewyn. North Highland then filed an adversary action against Trewyn in bankruptcy court. North Highland and Trewyn ultimately reached a settlement agreement that led to the dismissal of the adversary proceeding in bankruptcy court and the dismissal of Trewyn as a party in the instant case.

Following Trewyn's dismissal, Wells moved the trial court for summary judgment on North Highland's conspiracy claim, arguing that as a result of the dismissal of North Highland's claim against Trewyn, North Highland's conspiracy claim against Wells was barred by claim preclusion. The trial court granted Wells' motion.

North Highland unsuccessfully appealed the dismissal of both its conspiracy to breach fiduciary duty claim and its trade secret misappropriation claim against Wells.

The Court of Appeals ruled that the trial court appropriately granted summary judgment against North Highland’s conspiracy claim because North Highland failed to set forth sufficient facts in evidence to show that there was a genuine issue as to whether Wells and Trewyn conspired.

As for North Highland's trade secret misappropriation claim, the Court of Appeals ruled that North Highland had failed to adequately explain why its bid amount constituted "information" protected by Wisconsin's trade secret statute.

Among other things, North Highland maintains that this court should consider its bid amount to be "information" protected by Wisconsin's trade secret statute.

Justice Shirley S. Abrahamson did not participate in this order. Justice Ann Walsh Bradley dissents on procedural grounds.

2015AP959-CR State v. Suriano
Supreme Court case type: Petition for Review
Court of Appeals: District III
Circuit Court: Door County, Judge D.Todd Ehlers, affirmed
Long caption: State of Wisconsin, Plaintiff-Respondent, v. Jack M. Suriano, Defendant-Appellant-Petitioner.

Issues presented: This case examines whether the trial court erred by ruling that the defendant, Jack M. Suriano, forfeited his Sixth Amendment right to counsel after three appointed attorneys withdrew from his case, without first warning Suriano that forfeiture was a possibility or advising him of the difficulties and dangers of self-representation.

Some background: Jack M. Suriano was charged with obstructing an officer as a result of an incident that occurred after he refused the Door County sanitation department access to his property to check his septic system.

During pretrial proceedings, three attorneys appointed by the State Public Defender's Office (SPD) withdrew from representing Suriano. At the hearing on the third such lawyer's motion to withdraw, the trial court ruled that Suriano had forfeited his right to appointed counsel. Suriano was unable to arrange for an attorney on his own to represent him at his one-day trial. He was sentenced to 10 days in jail, with the jail time stayed and the stay to become permanent if Suriano pays a $100 fine plus costs.

In previous cases, the Wisconsin Supreme Court has recommended, but not required, that to establish a valid forfeiture of representation, a trial court should: (1) provide the defendant with an explicit warning that he will forfeit the right to counsel and have to represent himself if he persists in specific conduct; (2) engage in a colloquy to ensure that the defendant has been made aware of the difficulties and dangers of self-representation; (3) make a clear ruling when the court deems the right to counsel to have been forfeited; and (4) make factual findings to support the ruling. State v. Cummings, 199 Wis. 2d 721, 756 n.18, 546 N.W.2d 406 (1996).

The trial court did not do all of the things the Cummings court recommended. Specifically, the trial court never warned Suriano that forfeiture of his right to counsel was a possibility and did not engage Suriano in a colloquy about the difficulties and dangers of self-representation.

Suriano appealed, and the Court of Appeals affirmed. The Court of Appeals wrote that the decisive issue was whether Suriano frustrated the orderly and efficient progression of the case and had the purpose to do so. The Court of Appeals held that, on the facts before it, the answer was yes.

Suriano argues that this court should either make the four-step procedure in Cummings mandatory, or should implement some other basic, mandatory procedure for courts to follow when contemplating a forfeiture finding.

The state's position in this case is that Suriano has failed to present a convincing reason why this court should overrule or modify the recommended four-step procedure described in Cummings.

The state also argues that requiring trial courts to warn an uncooperative defendant that forfeiture is a possibility and to advise them of the difficulties of self-representation would hurt the interests of finality and the conservation of judicial resources.

2015AP1292-CR and 2015AP1293-CR State v. Zimbal
Supreme Court case type: Petition for Review
Court of Appeals: District III
Circuit Court: Brown County, Judge William M. Atkinson, affirmed
Long caption: State of Wisconsin, Plaintiff-Respondent, v. Edward J. Zimbal, Defendant-Appellant-Petitioner.
Issues presented: The question in this case is whether, under the circumstances presented, defendant Edward J. Zimbal properly invoked his right to substitution of a circuit court judge.

Some background: Zimbal unsuccessfully appealed judgments convicting him of four felonies and two misdemeanors, and an order denying his post-conviction motion. He contends the trial judge erred by denying his request for substitution.

The Court of Appeals held that Zimbal did not properly invoke Wis. Stat. § 971.20(7), which governs requests for substitution following appeal. Although Zimbal made an oral request within the time set by that statute, the statute requires the request to be "filed," which would require a written document. The Court of Appeals also noted that any doubt about the requirement for filing a written request is clarified by § 971.20(10), which provides an example of the form a request for substitution should take, and requires the request to be signed by the defendant or his attorney.

The Court of Appeals then noted that a written substitution request filed by Zimbal's subsequently appointed attorney was not filed within 20 days of remittitur, and therefore, was not timely filed under Wis. Stat. § 971.20(7).

Zimbal argued that the Court of Appeals should apply an equitable "tolling rule" because circumstances beyond Zimbal's control—the delay in appointment of counsel by the state public defender—resulted in the belated filing of the substitution request. Zimbal claimed he "could not file an acceptable request for substitution until he had a lawyer, but he could not get a lawyer until one was assigned by the State Public Defender."

The appellate court held that although the trial court ruled it would not grant a request for substitution until Zimbal was represented by counsel, the trial court did not prevent Zimbal from timely filing a written request.

Zimbal argues to this court that his efforts to make a substitution request should have been deemed sufficient, despite their technical flaws.

Justice Shirley S. Abrahamson did not participate in this order. Justice Ann Walsh Bradley dissents on procedural grounds.

Review denied: The Supreme Court denied review in the following cases. As the state's law-developing court, the Supreme Court exercises its discretion to select for review only those cases that fit certain statutory criteria (see Wis. Stat. § 809.62). Except where indicated, these cases came to the Court via petition for review by the party who lost in the lower court:

Brown
2015AP228 State v. Neal — Justice Daniel Kelly did not participate.

Clark
2015AP886-87 State v. Utecht

Dane
2014AP2338-CRNM State v. Singleton — Justice Daniel Kelly did not participate.
2014AP2351-52-CR State v. Gatlin
2014AP2462 Shrago v. Burke
2015AP704-CR State v. Matticx — Justice Daniel Kelly did not participate.
2015AP850-CR State v. Singh — Justice Shirley S. Abrahamson dissents.
2015AP1443 Chisholm v. Krosnicki
2015AP2131 Co Leigh Co v. LIRC
2015AP2417 Balele v. LIRC

Dodge
2014AP1841 State v. Weyker — Justice Shirley S. Abrahamson did not participate.

Douglas
2015AP1077-CR State v. Hawkins

Eau Claire
2016AP492-W Northern v. Tegels

Fond du Lac
2014AP1378-CR State v. Gandy
2015AP1631-CR State v. Vickers
2015AP2190 AASTHA Petroleum v. DNR

Jackson
2015AP339-40 State v. Spangler
2016AP1135-W State v. Thums

Jefferson<br /> 2015AP1199-CR State v. Delap

Kenosha
2015AP521 State v. Eternicka
2015AP1411 State v. Rodriguez
2015AP1458-CR State v. Martinez — Justice Shirley S. Abrahamson dissents.
2015AP1540-CR State v. Luiz-Lorenzo

La Crosse
2015AP1499 Smith v. Wis. Mut. Ins.

Marathon
2014AP2975-CR State v. Saechao
2015AP378 Swiderski v. Swiderski — Justice Ann Walsh Bradley did not participate.
2015AP674 State v. Vang — Justice Ann Walsh Bradley did not participate.

Marinette
2015AP958-CR State v. Allen

Milwaukee
2013AP2843-CRNM State v. Baker
2014AP2614-16-CR State v. Below — Justice Rebecca Grassl Bradley did not participate.
2014AP2742-CR State v. Hopgood
2014AP2812 Mayo v. Wis. Injured Patients & Families Comp. Fund
2015AP43-44-CR State v. Duewell
2015AP635 State v. Stallings — Justice Shirley S. Abrahamson and Justice Daniel Kelly did not participate. Justice Ann Walsh Bradley dissents.
2015AP637-CR State v. Dengsavang — Chief Justice Patience Drake Roggensack did not participate.
2015AP782-CR State v. Jones
2015AP819-CR State v. Heart — Justice Daniel Kelly did not participate.
2015AP964-CR State v. Seals
2015AP1153-CR State v. Johnson
2015AP1518-CR State v. Thomas
2015AP1577 Milwaukee Deputy Sheriffs' Assoc. v. Milwaukee Co.
2015AP1578 State v. Taylor
2015AP1606 State v. G.H.
2015AP1783-CR State v. Britton
2016AP421 State v. S.J.
2016AP1065-W Purifoy v. Bellile
2016AP1206-W Collins v. Percy
2016AP1428-W Dallas v. Clarke

Ozaukee
2015AP199-CRNM State v. Ammerman

Pierce
2015AP1691 Bertelsen v. WERC

Portage
2015AP601-CR State v. Perez

Rock
2015AP141-42-CR State v. Clark
2015AP2469 Rock Co. HSD v. W.J.
2016AP208-W Gordon v. Humphreys
2016AP255-FT Rock Co. v. S.J.M.

Shawano
2015AP642 Fuller v. Schultz

Sheboygan
2014AP2638 Adema v. Dell — Justice Shirley S. Abrahamson and Justice Daniel Kelly did not participate. Justice Ann Walsh Bradley dissents.
2014AP2876-CR State v. Barbeau

Vernon
2016AP65-W Sell v. Rosborough

Vilas
2015AP1893 Town of Winchester v. Stilson

Walworth
2015AP1257-CR State v. Torstenson
2015AP2504-FT County of Walworth v. Robinson
2016AP269-W Babcock v. Meisner

Washburn
2014AP2762 Ninedorf v. Joyal

Winnebago
2015AP1949 State v. Shong
2016AP1004-W Grant v. Bartow

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

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