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2017

Wisconsin Supreme Court accepts 13 new cases

Madison, Wisconsin - January 11, 2017

The Wisconsin Supreme Court has voted to accept 13 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 below. 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.

2014AP2701-CR State v. Stietz
Supreme Court case type: Petition for Review
Court of Appeals: District IV
Circuit Court: Lafayette County, Judge James R. Beer, affirmed
Long caption: State of Wisconsin, Plaintiff-Respondent, v. Robert Joseph Stietz, Defendant-Appellant-PETITIONER.

Issues presented: Petitioner Robert Joseph Stietz presents the following issues to the Supreme Court:

  • Did the Court of Appeals deny Stietz's federal and state constitutional rights to present a complete defense of self-defense by weighing his credibility and requiring more than "some evidence," even if inconsistent, to support a self-defense instruction?
  • Did the Court of Appeals deny Stietz's federal and state constitutional rights to present a defense by forbidding arguments that Stietz was defending himself against two men he reasonably believed were armed trespassers?
  • Did the Court of Appeals contradict the Supreme Court's decision in State v. Hobson, 218 Wis. 2d 350, 577 N.W.2d 825 (1998), by foreclosing a self-defense claim against wardens who Stietz did not know were law enforcement officers; were not claiming to make an arrest but were only trying to disarm a man without apparent right; and were not acting peaceably in any event but were trying to violently disarm a lawfully armed man?

Some background: Stietz was originally charged with first-degree reckless endangerment, negligent handling of a weapon, two counts of resisting a law enforcement officer while threatening to use a dangerous weapon, and two counts of intentionally pointing a firearm at a law enforcement officer. He was convicted after a jury trial of resisting a law enforcement officer and intentionally pointing a firearm at an officer.

The charges arose out of a confrontation between Stietz and two Department of Natural Resources (DNR) conservation wardens, Joseph Frost and Nick Webster. Stietz was accused of pointing and holding a handgun at the wardens after they confronted him in a field for possibly hunting deer after allowable hours.

Stietz's pretrial motion to dismiss the charges based on his Second Amendment rights was denied following a hearing.

The wardens testified that they went looking for hunters who may have been hunting after hours after they had spotted hunting items in Stietz' vehicle parked along a fence line.

When Stietz was about 20 yards away from them, Frost turned on his flashlight and each warden identified himself as "Conservation Warden" in a voice "loud enough to be heard pretty well." Webster asked Stietz if he had seen any deer. Stietz, who was armed with a rifle, said he had seen seven doe. Stietz told the wardens he was not hunting but was looking for trespassers.

As Stietz walked toward the two wardens, Frost noticed a gun in Stietz's right front pocket and alerted Webster. Webster testified Stietz "went from holding his gun off to the side and then turned his gun facing straight on as I was approaching him, which is unusual."

When the wardens and Stietz were "within arm's reach" of each other, Webster asked Stietz if the rifle was loaded and Stietz said it was. After Stietz twice denied the wardens' requests to see the rifle, Frost became concerned for his and Webster's safety.

In a struggle for the rifle, Frost ended up with the rifle in his hands, lying on his back. When Stietz reached for his handgun, Webster drew his own handgun and Frost threw the rifle aside and drew his handgun as well.

As Frost stood up, Stietz continued to point his handgun in Webster's direction. For the next 10 minutes the wardens unsuccessfully tried to convince Stietz to lower his weapon, but it was not until a sheriff's deputy arrived on the scene that Stietz lowered the handgun.

Stietz testified at trial that he had been walking his fenced-in property looking for trespassers when he encountered two strangers clad in blaze orange. Stietz testified when he refused to give the strangers his rifle, they forcibly wrestled it away and when one of the strangers drew a pistol on Stietz, he responded in kind. Stietz claimed he feared for his life and had acted in self-defense to protect himself. Stietz sought a self-defense jury instruction, but the request was denied.

The circuit court denied Stietz's post-verdict motion for acquittal or a new trial. The court imposed a four-year sentence consisting of one year of initial confinement and three years of extended supervision on the intentionally pointing a firearm at an officer charge. The court withheld sentence on the resisting conviction and imposed a consecutive two-years of probation.

Stietz appealed, and the Court of Appeals affirmed. On appeal, Stietz argued that the circuit court erred when it denied his request for a self-defense jury instruction. The Court of Appeals noted that although Stietz testified he did not know Frost and Webster were wardens until Webster called the sheriff’s department for backup, Stietz' testimony indicated that when the wardens first approached one "looked at him and said a Warden, but it was kind of mumbled. . . ." Stietz also testified that "one kind of said, Green County," while "the other one looked at him and said something warden."

Justice Ann Walsh Bradley did not participate. Justice Daniel Kelly did not participate in this order.

2015AP207 Smith v. Kleynerman
Supreme Court case type: Petition for Review
Court of Appeals: District I [Dist. IV judges]
Circuit Court: Milwaukee County, Judge Pedro Colón, affirmed
Long caption: Scott Smith, Plaintiff-Respondent-Cross-Appellant-RESPONDENT, Alpha Cargo Technology, LLC, Plaintiff, v. Greg Kleynerman, Defendant-Appellant-Cross-Respondent-PETITIONER, Red Flag Cargo Security Systems, LLC, Defendant

Issues presented:

  • Whether Greg Kleynerman, as a 50-percent member in a Wisconsin limited liability company, owed Scott Smith, the other 50-percent member, a fiduciary duty.
  • Whether an LLC member personally has standing to recover lost profits putatively suffered by an LLC.
  • What is the proper gatekeeping role of a circuit judge under the statutory Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) admissibility standard with respect to expert's testimony?

Some background: In 2002, Smith and Kleynerman formed Alpha Cargo Technology, LLC (ACT) to distribute cargo security seals in the United States. Kleynerman and Smith each owned a 50 percent interest in ACT. Smith was designated as ACT’s president. Kleynerman was the executive vice president. Kleynerman and Smith ran ACT out of their respective homes in Milwaukee and Minneapolis. ACT bought cargo security seals made by Chinese and European manufacturers and resold them to ACT's customers in the Americas. After Kleynerman improved the cargo seal locking mechanism, ACT filed patent applications in the United States on the locking mechanism inventions. Kleynerman was listed as one of the inventors, and the inventors assigned the rights in the patents to ACT.

Kleynerman was responsible for technical aspects of the business, such as receipt of products in the United States, storage, packaging, and shipments of products to customers. Smith was responsible for marketing and sales. The business showed strong sales for several years, which then tapered off, leaving the partners to look for options.

In late 2008 and early 2009, Kleynerman began discussions with Milwaukee attorney and CPA Bruce Glaser, who became interested in investing by forming new companies to buy ACT’s assets and retaining ACT as a sales agent. Glaser subsequently entered into business dealings with Kleynerman and his wife and loaned money to Kleynerman.

Glaser set up new and separate limited liability companies—one each to handle production and sales. He owned 75 percent of each company, and another investor, Greg Grinberg, owned 25 percent of each.

Glaser prepared a memorandum of understanding describing an arrangement by which ACT would sell it assets, including patents, to Red Flag and ACT would serve as sales representative for a year. The sale price depended on sales, which fell flat.

Glaser asked Kleynerman to continue to work for Red Flag but did not make a similar offer to Smith. In February 2011, Glaser sold his 75 percent interest in Red Flag to Kleynerman for a nominal value. Kleynerman subsequently made changes to the cargo seal product, which improved cost and performance. Red Flag's gross revenue increased from $98,152 in 2011, to more than $1.5 million in 2012.

In December 2011, Smith sued Kleynerman and Red Flag, claiming that Kleynerman breached his fiduciary duty owed to Smith as it related to Smith's interests in the June 2009 transaction with Red Flag. Smith also alleged that Kleynerman made various misrepresentations to Smith to induce him to agree to the transaction to his detriment. One of Smith's claims was that he suffered from severe depression following the death of his wife in 2007, and this caused Smith to be less involved in running ACT and led to ACT's declining sales.

The case was tried to a jury over the course of six days. The jury found that Kleynerman owed a fiduciary duty to Smith and that Kleynerman had breached that duty, resulting in damages to Smith in the amount of $499,000. While the jury found that Kleynerman had made certain representations to Smith, it found the representations were not untrue. The jury awarded Smith $200,000 in punitive damages.

The parties filed cross-post-verdict motions. The circuit court concluded that the jury's award of punitive damages was legally inconsistent with the jury's verdict that the representations made by Kleynerman were not untrue. Accordingly, the circuit court struck the punitive damages award. The circuit court denied the parties' motions seeking to alter any other portion of the verdict.

The Court of Appeals affirmed.

A decision by the Supreme Court is expected to clarify the law regarding the rights and obligations of Wisconsin LLC members to each other and expand upon the decision in Gottsacker v. Monnier, 2005 WI 69, 281 Wis. 2d 361, 697 N.W.2d 436.

2015AP671-CR State v. Wilson
Supreme Court case type: Petition for Review
Court of Appeals: District I
Circuit Court: Milwaukee County, Judge William S. Pocan, affirmed
Long caption: State of Wisconsin, Plaintiff-Respondent, v. Keimonte Antonie Wilson, Sr., Defendant-Appellant-PETITIONER

Issues presented: This case examines statutes in Wisconsin that address subpoenas. In particular, Wis. Stat. § 885.03, which specifically applies to criminal cases, provides that service of a subpoena can be accomplished by simply "leaving such copy at a witness's abode."

The Supreme Court reviews, whether a witness in a criminal case is properly served when a subpoena is left at the witness's abode, and whether trial counsel was ineffective for: (1) failing to argue that a key witness was properly subpoenaed; or in the alternative, (2) failing to properly subpoena the witness.

Some background: Keimonte Antonie Wilson, Sr., seeks review of a Court of Appeals' decision affirming a judgment of conviction for possession with intent to deliver between five and 15 grams of cocaine and also affirming an order denying a motion for post-conviction relief.

Milwaukee police officers said they saw a truck parked in a vacant lot with a "No Trespassing" sign. They saw Wilson exit the truck and approach a known drug house. Wilson was briefly out of the officers' sight before he walked back to the truck, so officers did not see whether Wilson had entered the house. The officers approached Wilson.

He denied having drugs or weapons on him and police say he consented to a search of his person. Wilson denies that he consented, and he said police had guns drawn as they approached. Police said they did not have guns drawn. Police found 10.65 grams of cocaine base and $449 cash. Wilson was charged with possession with intent to deliver cocaine as a second offense.

Wilson filed a suppression motion, arguing that there had been no basis for the stop and that he had not given consent to the search. The circuit court held a hearing. After officer William Savagian testified, defense counsel said he had subpoenaed Jacqueline Brown for the hearing, but she had failed to appear. Wilson contends that having Brown testify would have helped his case.

Defense counsel presented testimony from Brown's son, Darryl Roberts. After Roberts testified, defense counsel moved to adjourn in order to re-subpoena Brown. The state suggested a body attachment instead, and it objected to having Brown testify by phone. Defense counsel noted that Brown had been served by leaving the subpoena with her daughter at their residence. The circuit court reviewed the subpoena and concluded that service, a single attempt that had used substitute service, was inadequate. The court said, "[Y]ou have to attempt on a couple of occasions and make reasonable efforts before you can serve by substitute service." The court denied both the body attachment and an adjournment of the hearing.

Wilson testified at the hearing. The state presented rebuttal testimony from Savagian and officer James Hunter. The circuit court concluded there had been reasonable suspicion and that Wilson had consented to the search, so it denied the suppression motion. Wilson subsequently pled guilty and the repeater enhancer was dropped. The circuit court imposed five years imprisonment.

Wilson filed a postconviction motion, arguing that the circuit court erroneously determined that service of the subpoena on Brown had been faulty. He also argued he received ineffective assistance of trial counsel due to counsel's failure to make an appropriate legal argument about the subpoena and/or in failing to serve Brown correctly in the first place.

The circuit court denied the motion. The Court of Appeals affirmed.

The Court of Appeals noted there is no specific criminal procedure statute that describes the subpoena process for witnesses in criminal cases.

Wilson argued that the criminal witness subpoena process was found exclusively in § 885.03, Stats., which says, "Any subpoena may be served by any person by exhibiting and reading it to the witness, or by giving the witness a copy thereof, or by leaving such copy at the witness's abode."

The Court of Appeals said § 885.03 is not the only civil rule of practice dealing with subpoenas, and § 805.07(1) says that "[s]ubpoenas shall be issued and served in accordance with ch. 885." The court further noted that § 805.07(5) states, "[a] subpoena may be served in the manner provided in s. 885.03 except that substituted personal service may be made only as provided in s. 801.11(1)(b)."

While Wilson argued that § 801.11 could not apply because it refers to serving a defendant and not a witness, the Court of Appeals pointed out that § 801.11 also refers to serving a summons, not a subpoena, but the legislature incorporated the procedure by reference. Having concluded that a subpoena for a witness in a criminal case is subject to the reasonable diligence requirement of § 801.11(1)(b) before substitute service may be used, and because there was no dispute that the single attempt at serving Brown was insufficient to satisfy the due diligence standard, the Court of Appeals held that the lower court did not err when it concluded that Brown had not been properly served, nor did it err in refusing to issue a body attachment or in refusing to adjourn the motion hearing.

The Court of Appeals found that Brown's proposed testimony would not have improved the plausibility of the things the circuit court questioned, so she would not have bolstered either man's credibility.

Wilson argues that if the Legislature had wanted to impose a reasonable diligence requirement for serving subpoenas in criminal cases, it could have easily included such language in § 885.03 or, in the alternative, referenced § 801.11(1)(b) in § 885.03.

2015AP1493 The Segregated Acct. of Ambac Assur. Corp. v. Countrywide Home Loans, Inc.
Supreme Court case type: Petition for Review
Court of Appeals: District IV
Circuit Court: Dane County, Judge Peter Anderson, reversed and cause remanded
Long caption: The Segregated Account of Ambac Assurance Corporation (the “Segregated Account”) and Ambac Assurance Corporation ("Ambac"), Plaintiffs-Appellants-RESPONDENTS, v. Countrywide Home Loans, Inc., Defendant-Respondent-PETITIONER

Issues presented:

  • Does a foreign corporation's appointment of an agent to receive service of process in Wisconsin, as required by Wis. Stat. § 180.1507 when registering to do business here, without more, constitute consent to the general jurisdiction of the Wisconsin courts?
  • Would requiring a foreign corporation to consent to general jurisdiction of the Wisconsin courts as a condition of doing business in the state violate the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution?

Some background: Ambac is a Wisconsin-domiciled stock insurance corporation with its principal place of business in New York. Countrywide is a New York corporation with its principal executive offices in California. Countrywide originated mortgage loans.

In 2005, Ambac issued policies insuring against losses resulting from residential mortgage-backed securities, based on representations made by Countrywide to Ambac during 2004-05 regarding Countrywide’s mortgage origination practices. Ambac is obligated to make more than $350,000,000 in claims payments.

The Segregated Account was established in 2010, under a plan approved by the Wisconsin Commissioner of Insurance. Ambac allocated the insurance policies to the Segregated Account. A circuit court placed the Segregated Account into statutory rehabilitation. The rehabilitation proceedings were pending in Dane County Circuit Court at the time the complaint in this action was filed.

After the housing market collapsed, Ambac filed multiple lawsuits, including four against Countrywide, seeking to hold the security issuers, underwriters, and originators liable for the risks Ambac insured against. All lawsuits except for this one were brought in New York courts.

In 2014, Ambac filed a fraud case in Wisconsin arising out of five residential-backed securities securitizations that originated in 2005. Ambac filed a nearly identical suit in New York, apparently to preserve its rights in the event the Wisconsin case was dismissed. The New York case is apparently stayed pending this litigation.

Countrywide moved to dismiss the Wisconsin suit arguing, among other things, that no basis existed for personal jurisdiction over Countrywide in Wisconsin. Following oral argument, the circuit court dismissed the suit for lack of personal jurisdiction over Countrywide. The circuit court concluded that Countrywide did not consent to general jurisdiction in Wisconsin by appointing a registered agent for service of process; Countrywide did not consent to general jurisdiction by appearing in the rehabilitation; and Countrywide is not subject to specific jurisdiction because Ambac's alleged injury occurred in New York.

In reaching its decision, the circuit court relied in large part on Daimler AG v. Bauman, 134 S. Ct. 746 (2014).

The Court of Appeals reversed and remanded. The appellate court noted that a foreign corporation "authorized to transact business in this state shall continuously maintain in this state a registered office and registered agent." § 180.1507, Stats. The court said it was undisputed that, although Countrywide was not incorporated in Wisconsin and did not maintain a principal place of business here, it had a designated Wisconsin agent for service of process during the pertinent time periods. The Court of Appeals agreed with Ambac that by maintaining a Wisconsin agent to receive service of process during the pertinent time periods, Countrywide subjected itself to the general jurisdiction of Wisconsin courts and actually consented to personal jurisdiction. The Court of Appeals said this result was dictated by two prior decisions.

First, the appellate court pointed to Punke v. Brody, 17 Wis. 2d 9, 115 N.W.2d 601 (1962), in which this court addressed the plaintiff's argument that service on an agent for the defendant was sufficient because the defendant had conferred authority to accept service on the agent, which "is essentially a claim that [the defendant] consented to the exercise of jurisdiction by Wisconsin courts." Id. at 13.

The second case cited by the Court of Appeals was Hasley v. Black, Sivalls & Bryson, Inc., 70 Wis. 2d 562, 235 N.W.2d 446 (1975). After concluding that the defendant was "within the reach of" the long-arm statute and had received adequate notice through service of process, the Hasley court turned to due process concerns. The Hasley court noted that International Shoe Co. v. Washington Office of Unemployment Comp. and Placement, 326 U.S. 310 (1945), requires certain minimum contacts between the defendant and the forum such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.

Countrywide argues that the question of whether a foreign corporation's appointment of an agent to receive service of process constitutes consent to general jurisdiction even if the corporation has no other ties to Wisconsin implicates federal constitutional law.

Countrywide further notes that the Daimler Court said, "A corporation that operates in many places can scarcely be deemed at home in all of them. Otherwise, 'at home' would be synonymous with 'doing business' tests framed before specific jurisdiction evolved in the United States." 134 S. Ct. 773 n.20.

Countrywide says in 2015 alone, there were more than 3,500 foreign businesses that newly registered to do business in Wisconsin in order to sell goods or services here. Countrywide says it is not supportable to think that each of those foreign corporations consented to be brought to court in Wisconsin for any action that occurs in any state, regardless of the connection to Wisconsin, yet that is the conclusion of the Court of Appeals' holding.

Ambac argues it is well established that appointment of an in-state agent for service of process is a valid method of establishing consent to jurisdiction. Ambac contends that Countrywide misreads Daimler, which has nothing to do with consent based exercises of personal jurisdiction and cannot be read as upending nearly a century of jurisprudence.

Justice Daniel Kelly did not participate.

2015AP1523 Milewski v. Town of Dover
Supreme Court case type: Petition for Review
Court of Appeals: District II
Circuit Court: Racine County, Judge Phillip A. Koss (Walworth County), affirmed
Long caption: Vincent Milewski and Morganne MacDonald, Plaintiffs-Appellants-PETITIONERS,v. Town of Dover, Board of Review for the Town of Dover and Gardiner Appraisal Service, LLC, as Assessor for the Town of Dover, Defendants-Respondents-RESPONDENTS.

Issues presented:

  • Whether government entry into a citizen's home under Wis. Stat. § 70.47(7)(aa) and § 74.37(4)(a) (which together require property owners to permit interior inspections of homes for tax assessment purposes or forfeit their right to challenge their assessment in any manner) constitute a search for Fourth Amendment purposes.
  • Whether warrantless searches under Wis. Stat. § 70.47(7)(aa) and § 74.37(4)(a) are reasonable as a matter of law.
  • Whether Wis. Stat. § 70.47(7)(aa) and § 74.37(4)(a) violate the Due Process Clause by depriving a citizen of any right to appeal a tax assessment if the citizen denies consent to an assessor to conduct an interior inspection of the citizen's home.

Some background: Plaintiffs Vincent Milewski and Morganne MacDonald own a home in the town of Dover. In 2013, the town performed a new assessment of all real property. Gardiner Appraisal Service, LLC, was hired to perform property tax assessment services.

Section 70.32(1), Stats., provides that real property shall be valued by the assessor in the manner specified in the Wisconsin Property Assessment Manual. The manual provides that "in the case of real property, actual view requires a detailed viewing of the interior and exterior of all buildings and improvement and recording of complete cost, age, use, and accounting treatments."

Gardiner sent the plaintiffs a notice saying, "We must view the interior of your property for the Town wide revaluation program which is in progress. An assessor will stop by to view your property on Tues, Aug 20 at 6:10 PM." The plaintiffs denied the Gardiner representative entry into the interior of their home.

On Oct. 4, 2013, Gardiner sent the plaintiffs a certified letter seeking to set an appointment and advised Milewski and MacDonald that the property would be assessed according to Wis. Stat. §§ 70.32(1) and 70.47(7)(aa). The plaintiffs wrote the town a letter saying that interior home inspections were not legally required for a revaluation and that the plaintiffs "have not refused a 'reasonable' request to view our property by refusing to allow an unknown stranger entry into our private and secure residence."

Without the benefit of an interior viewing, Gardiner valued the property at $307,100, a 12.12 percent increase from the previous assessment which was made in 2004. Gardiner said it reached this figure after considering the possibility that the plaintiffs had remodeled over the past nine years, which had not been disclosed or could not be verified; Gardiner's inability to evaluate if the effective age of the home increased or decreased; Gardiner's "reasonable assumption that homes in which no inspection is permitted will have less increase in effective age than average"; that it is not fair to assume that there have been no improvements for any home where access has been denied; that assessed values of many homes had increased in 2013; and a 13 percent increase in value from 2004 to 2013 is not uncommon.

The plaintiffs filed a formal objection to the assessment with the town. They attended the board of review hearing, seeking to object to the property assessment. The board of review rejected the plaintiffs' request because they had refused a reasonable request of the assessor to view the property. After consulting with the Department of Revenue (DOR), the board of review determined the plaintiffs had waived their appeal rights under § 70.47(7)(aa).

Because the plaintiffs could not challenge their assessment before the board of review, they filed a complaint against the town and Gardiner in circuit court, arguing that Wisconsin statutes for property tax assessment and appeals are unconstitutional and that Gardiner over-assessed their property in violation of §§ 70.501 and 70.503.

The court granted motions for summary judgment filed by the town and Gardiner, dismissing all claims against them.

The plaintiffs appealed. The Court of Appeals affirmed.

The Court of Appeals said the plaintiffs' primary argument was that §§ 70.47(7)(aa) and 74.37(4)(a) are unconstitutional as applied because they deprive the plaintiffs of property without due process of law and punish the plaintiffs for exercising their Fourth Amendment right. The Court of Appeals said when a party challenges a law as being unconstitutional on its face, the party "must show that the law cannot be enforced 'under any circumstances.'" League of Women Voters of Wis. Educ. Network, Inc. v. Walker, 2014 WI 97, ¶13, 357 Wis. 2d 360, 851 N.W.2d 302.

The Court of Appeals agreed with the circuit court that the statutory scheme is reasonable because it is based on the government’s requirement to comply with the uniformity clause of the Wisconsin Constitution: "Between all of the plaintiffs' references to the British and citations to the Bible, there is not a single citation to any case from any jurisdiction supporting their position that the Fourth Amendment is implicated here."

The plaintiffs maintain that an entry into a citizen's home for purposes of tax assessment is a "search" and penalizing those who refuse to consent to such a search is a violation of the Fourth Amendment of the U.S. Constitution and Article I, § 11 of the Wisconsin constitution. They contend that the punishment for withholding consent, which is the elimination of all rights to appeal the assessment, is a denial of due process.

Justice Daniel Kelly did not participate in this order.

2015AP829 Springer v. Nohl Electric Products Corporation
Supreme Court case type: Petition for Review
Court of Appeals: District IV
Circuit Court: Jefferson County, Judge William F. Hue, reversed and cause remanded
Long caption: Penny L. Springer, Plaintiff-Appellant-RESPONDENT, v. Nohl Electric Products Corporation, General Refractories Company, Dana Sealing Products, LLC, John Crane, Inc., Union Carbide Corporation, Rockbestos Surprenant Cable Corporation a/k/a Rockbestos Products Corp and RSCC Wire & Cable, Inc., Garlock Sealing Technologies LLC, Anchor Packing Company, Inc., Gaskets, Inc., Cincinnati Valve Company, Leslie Controls, Inc. and Trac Regulator Company, Inc., Defendants, Powers Holdings, Inc. and Fire Brick Engineers Company, Inc., Defendants-Respondents-PETITIONERS, Secure Horizons by United Health Care Insurance Company, Subrogated Defendant

Issue presented: Whether the "fraudulent transfer" exception to Wisconsin's general rule against successor liability must be analyzed in the context of Wisconsin's Uniform Fraudulent Transfer Act (WUFTA), Wis. Stat. ch. 242, such that the petitioners, Powers Holdings, Inc. and Fire Brick Engineers Company, Inc., are subjected to successor liability for a former entity's sale of asbestos-containing products.

Some background: Penny L. Springer contends that the petitioners, whose previous corporate entities distributed materials that contained asbestos, are liable for her husband's death under the theory of successor liability because the corporate sales and mergers were fraudulently structured to avoid liability for its distribution of asbestos-related products.

FBE Company was formed by Harry J. Schofield in the 1940s. Before 1983, FBE Company distributed refractory and foundry supplies, some of which contained asbestos. In 1983, a group of investors, including attorneys who had previously provided legal representation to FBE Company, formed FBE Corporation, which purchased the assets of FBE Company. FBE Corporation later changed its name to Fire Brick Engineers Company, Inc., one of the petitioners in this case.

In 1989, FBE Company, Inc. merged with another company to form Powers Holdings, Inc., the other petitioner, and continued to do business as Fire Brick Engineers.

Springer filed her lawsuit in 2010, alleging that the petitioners are liable under theories of negligence and strict liability for damages stemming from the death of her husband. Springer alleged that from approximately 1963 through 1969, her husband was exposed to asbestos-containing products that were manufactured and/or sold by FBE Company and that the exposure to those products contributed to her husband's mesothelioma and subsequent death. Springer sought to hold the petitioners liable, as successors to FBE Company.

The petitioners moved for summary judgment, arguing that there was no evidence that they distributed or sold asbestos-containing products. They argued that, although they acquired the assets of FBE Company, there was no basis upon which to impose liability on them as successors to FBE Company.

Focusing primarily on evidentiary issues relating to the 1983 purchase agreement, the circuit court granted judgment in favor of the petitioners. Springer appealed, and the Court of Appeals reversed.

As the party seeking the benefit of an exception to a general rule, Springer had the burden of proving one of the exceptions to the general rule against successor liability applies. Acuity Mut. Ins. Co. v. Olivas, 2007 WI 12, ¶44, 298 Wis. 2d 640, 726 N.W.2d 258 ("one who relies on an exception to a general rule … has the burden of proving that the case falls within the exception") (quoting State v. Big John, 146 Wis. 2d 741, 756, 432 N.W.2d 576 (1988), which cites Charles T. McCormick, McCormick's Handbook of the Law of Evidence, § 337 at 787-89 (2d ed. 1972)).

Ultimately, the Court of Appeals focused on the possible exception provided when a transaction is entered into fraudulently to escape liability for the obligations at issue.

The Court of Appeals stated that it considered it "evident" that the question of whether a transfer transaction was entered into fraudulently should be answered in the context of WUFTA.

The petitioners say this is the first time a Wisconsin appellate court has addressed the question of whether courts should look to the factors listed in § 242.04-where no cause of action is brought under Chapter 242-to determine whether a transfer was "fraudulent" as that term is used in the exceptions to successor non-liability. See, e.g., Fish v. Amsted Indus., Inc., 126 Wis. 2d 293, 298

The petitioners argue that the court should not look to § 242.04(1) as the standard for a fraudulent transfer in the context of this exception to the general rule against successor liability.

The petitioners note that the "very language of the 'fraudulent transfer' exception refers to a situation where the defendant enters into the transaction for the sole purpose of escaping the seller’s existing liability," and point out that by contrast, the WUFTA addresses transfers that are fraudulent to both present and future creditors, a distinction they deem relevant. See Wis. Stat. §§ 242.05, 242.05.

A decision in this case could determine if the "fraudulent transfer" exception to Wisconsin's general rule against successor liability must be analyzed in the context of WUFTA.

2015AP993-CR State v. Steinhardt
Supreme Court case type: Petition for Review
Court of Appeals: II [Dist. IV judges]
Circuit Court: Ozaukee County, Judge Sandy A. Williams, affirmed
Long caption: State of Wisconsin, Plaintiff-Respondent, v. Heather L. Steinhardt, Defendant-Appellant-PETITIONER

Issues presented:

  • Was Heather L. Steinhardt's right to be free from double jeopardy violated when she was convicted of both failure to protect a child and first-degree sexual assault of a child pursuant to Wis. Stat. §§ 948.02(3) and 948.02(1)(e)?
  • Did Steinhardt relinquish her right to raise the double jeopardy issue by pleading no contest to the charges?
  • In Steinhardt's postconviction claim that her trial attorney was ineffective for failing to advise her of the double jeopardy issue, did she sufficiently allege that she was prejudiced by her attorney's failure?

Some background: Steinhardt was convicted after entering no contest pleas to both Failure to Protect a Child from Sexual Assault and First-Degree Sexual Assault of a Child under the age of 13 as a party to a crime, and of child enticement. The charges stem from her participation in and acquiescence to the sexual assault of a 12-year-old girl by a man as Steinhardt sat by.

Steinhardt was charged with three offenses: Failure to Protect a Child from Sexual Assault, in violation Wis. Stat. § 948.02(3); First-Degree Sexual Assault of a Child under Age 13 as a Party-to-a-Crime, in violation of Wis. Stat. §§ 948.02(1)(e) and 939.05; and Child Enticement, in violation of Wis. Stat. § 948.07.

On May 13, 2014, the circuit court accepted Steinhardt's no-contest pleas to all three counts. The court found that the complaint provided a sufficient factual basis for the pleas. Steinhardt was sentenced to 22.5 years initial incarceration (IC) followed by 15 years extended supervision (ES), as follows: count one: 12.5 years (7.5 years IC, 5 years ES); count two: 25 years (15 years IC, 10 years ES); and count three: 25 years (15 years IC, 10 years ES). Counts two and three were ordered to run concurrent to each other, but consecutive to count 1.

In post-conviction proceedings, Steinhardt claimed the two charges were multiplicitous and that counsel was ineffective for not so advising her and that she was entitled to plea withdrawal. The circuit court conducted an evidentiary hearing and ruled that Counts one and two were not multiplicitous. The court accepted an offer of proof that Steinhardt’s trial attorney had not recognized the multiplicity issue and therefore had no strategic reason for not advising Steinhardt about that issue. The court then denied her ineffective assistance of counsel claim, based on its finding that the charges were not multiplicitous.

Steinhardt maintains that under the clear language of § 939.66, she cannot be convicted of a crime "which is a less serious or equally serious violation under s. 948.02 than the one charged." The failure to act offense under § 948.02(3) is a Class F felony and it is a less serious type of violation than first-degree sexual assault, which is a Class A or B felony, depending on circumstances. See § 939.66 (2p).

Steinhardt thus contends that under the clear language of § 939.66, conviction of both offenses is not permitted, at least when the acts or omissions occurred at the same time and are of the same nature.

On appeal, the state conceded that the same criminal act cannot support more than one charge under Wis. Stat. § 948.02 because Wis. Stat. § 948.66(2p) provides that any violation of § 948.02 is an included offense of any other less or equally serious violation of § 948.02. Slip op. at ¶7.

However, the Court of Appeals ruled that by pleading no-contest, Steinhardt relinquished her right to direct review of her double jeopardy claim, citing State v. Kelty, 2006 WI 101, 294 Wis. 2d 62, 716 N.W.2d 886. With respect to Steinhardt's alternate claim (that her attorney was ineffective for failing to advise her of a double jeopardy issue), the court found her proffered testimony to be conclusory such that she failed to properly allege prejudice and denied the claim on that basis.

In Kelty, the Wisconsin Supreme Court held that, in general, a plea waives one's right to raise a double jeopardy violation, but a plea does not waive a double jeopardy claim if the claim can be resolved "on the record as it existed at the time the defendant pled." Kelty at ¶38. Here, the parties disputed whether the record here permits this exception.

The Court of Appeals reasoned that Steinhardt's multiplicity claim could not be resolved based solely on the allegations made in the criminal complaint.

Steinhardt maintains that her double jeopardy claim can be resolved by facts that were on the record at the time of her plea. She also challenges the ruling that she failed to adequately allege prejudice, contending that is an unreasonable standard because obviously she was prejudiced if she pled unknowingly to multiplicitous claims.

The State notes that each of these crimes requires proof of a fact that the other does not. The State points to Blockburger v. United States, 284 U.S. 299, 304 (1932), which holds that a "single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other."

A decision by the Supreme Court would clarify how a double-jeopardy claim applies to the circumstances presented in this case.

Justice Daniel Kelly did not participate in this order.

2015AP1452-CR State v. Lemberger
Supreme Court case type: Petition for Review
Court of Appeals: IV
Circuit Court: Dane County, Judge William E. Hanrahan, affirmed
Long caption: State of Wisconsin, Plaintiff-Respondent, v. Gary F. Lemberger, Defendant-Appellant-PETITIONER

Issues presented: The Supreme Court reviews this drunken driving case in light of recent state and U.S. Supreme Court decisions and considers whether it should expressly overrule Bolstad and Albright (full citations below). The petitioner, Gary F. Lemberger, presents the following issues to the Wisconsin Supreme Court:

  • Did the State violate Lemberger's constitutional right against self-incrimination by asking the jury to infer Lemberger had a "guilty mind" because he refused a warrantless breathalyzer?
  • Was defense trial counsel ineffective for failing to object to the state's comments to the jury seeking an inference of guilt from Lemberger's refusal of a warrantless breathalyzer?
  • Did Lemberger forfeit his argument that the state violated his constitutional right against self-incrimination by failing to cite Bolstad and Albright (full citations below) before the circuit court, and instead relying on recent case law supporting Lemberger's position?

Some background: In State v. Bolstad, 124 Wis. 2d 576, 584, 370 N.W.2d 257 (1985) and State v. Albright, 98 Wis. 2d 663, 669, 298 N.W.2d 196 (Ct. App. 1980), the Wisconsin Supreme Court and the Court of Appeals respectively held that a refusal to take a breathalyzer was admissible as evidence of a "guilty mind" in a drunk-driving case because "Wisconsin drivers [had] no constitutional right to refuse" a breathalyzer. The U.S. Supreme Court and the Wisconsin Supreme Court have since held that Wisconsin drivers do have the constitutional right to refuse a breathalyzer. See, e.g., Skinner v. Ry. Labor Exec. Ass 'n, 489 U.S. 602, 616-17 (1989); State v. Kennedy, 2014 WI 132, ¶5, 359 Wis. 2d 454, 856 N.W.2d 834.

In April 2014, police officers arrested Lemberger on suspicion of drunken driving following reports of his "aggressive driving." Lemberger did not perform well on field sobriety tests but refused to take a breathalyzer test. The police officers did not obtain a warrant for one and no blood test was conducted. Lemberger was charged with fourth-offense OWI and the matter proceeded to trial.

At trial, the state repeatedly argued to the jury that Lemberger's refusal to take the breathalyzer test amounted to strong evidence of his intoxication. Defense counsel did not object to the state's comments or to a jury instruction. Lemberger was convicted.

Lemberger filed a postconviction motion seeking a new trial. He argued that the State had violated his constitutional right against self-incrimination by seeking an inference of guilt from his refusal to take a breathalyzer; that violation was prejudicial enough to warrant a new trial; and that defense trial counsel was ineffective for failing to object to this.

The circuit court denied Lemberger's postconviction motion, ruling that Bolstad and Albright—which predated Skinner and State v. Banks 2010 WI App 107, ¶24, 328 Wis. 2d 766, 790 N.W.2d 526—still governed the issue and rendered Lemberger's claim meritless. The Court expressed considerable concern that Lemberger's lawyer had completely failed to cite to Bolstad and Albright, suggesting this implicated defense counsel's duty of candor to the court.

Lemberger argued that the Court of Appeals' 2010 decision in Banks, made clear that the State cannot seek an inference of guilt from a defendant's refusal of a warrantless Fourth Amendment search. 2010 WI App 107, ¶24, 328 Wis. 2d 766, 790 N.W.2d 526. Lemberger asserted that Banks was consistent with a long line of federal case law holding the same, citing United States v. Moreno, 233 F.3d 937, 940-41 (7th Cir. 2000); United States v. Dozal, 173 F.3d 787, 794 (10th Cir. 1999); United States v. Thame, 846 F.2d 200, 206-07 (3rd Cir. 1988). Lemberger then argued that, since the United States Supreme Court had held that a breathalyzer consists of a Fourth Amendment search, Banks applied to breathalyzer refusals. See Skinner, 489 U.S. 602, 616-17 (1989).

At the Court of Appeals, Lemberger acknowledged that both Bolstad and Albright clearly permitted an adverse inference from refusal but suggested they were both based on the (allegedly outdated) premise that Wisconsin drivers had no constitutional right to refuse a breathalyzer. He maintains that since the Court in Skinner (and this Court in State v. Kennedy, 2014 WI 132, ¶5, 359 Wis. 2d 454, 856 N.W.2d 834) deemed a breathalyzer a Fourth Amendment search, that premise is no longer valid.

The Court of Appeals ruled that Lemberger forfeited this argument because he had utterly failed to distinguish relevant and potentially controlling case law against this position in the circuit court.

Now, Lemberger contends that in 2014, the Wisconsin Supreme Court adopted and expanded Missouri v. McNeely, 569 U.S. __ (2013) in Kennedy, 2014 WI 132, ¶5. That same year, the Court of Appeals held that implied consent laws do not diminish individuals' constitutional rights to refuse a blood alcohol test. State v. Padley, 2014 WI App 65, ¶¶23-31, 354 Wis. 2d 545, 849 N.W.2d 867. Noting common confusion, the Padley Court explained that a driver’s "implied consent" means consent to having a civil penalty imposed should the driver refuse an alcohol test. Id. at ¶24. The Padley Court made clear that this "implied consent" does not affect, and is distinct from, a driver’s consent to a warrantless search.

Lemberger contends that federal and state case law now are "clearly contrary" to the premise of Bolstad, Albright and State v. Crandall, 133 Wis. 2d 251, 394 N.W.2d 905 (1986). He contends that the law now gives Wisconsin drivers the right to refuse a warrantless breathalyzer.

A decision by the Supreme Court is expected to clarify how the law may be applied in cases involving refusal to take a breathalyzer test.

Justice Daniel Kelly did not participate in this order.

2015AP1782-CR State v. Pal
Supreme Court case type: Petition for Review
Court of Appeals: IV
Circuit Court: Rock County, Judge Richard T. Werner, affirmed
Long caption: State v. Sambath Pal

Issue presented: Whether Sambath Pal was properly convicted of two counts of leaving the scene of an accident causing death.

Some background: Sambath Pal was involved in a motor vehicle accident in which he struck two motorcyclists, causing their deaths; he then left the scene. He was apprehended and pled guilty to two counts of hit and run involving death pursuant to Wis. Stat. § 346.67(1), arising from Wis. Stat. § 346.74(5)(d) (classifying hit and run involving death as a Class D felony).

Pal faced a maximum term of 15 years of initial confinement and 10 years of extended supervision on each count. See Wis. Stat. § 973.01(2)(b)4. and (d)3. The circuit court sentenced Pal to 10 years of initial confinement and 10 years of extended supervision on each count, to be served consecutively. He appealed and the Court of Appeals summarily affirmed.

Pal argues that it was multiplicitous, in violation of his constitutional protection against double jeopardy, for the state to charge him with two counts of hit and run for a single act of flight from the accident scene. See generally U.S. Const. amend. V.

In State v. Hartnek, 146 Wis. 2d 188, 430 N.W.2d 361 (Ct. App. 1988), the Court of Appeals ruled that a single event of failing to stop and render aid may give rise to multiple charges when there are multiple victims. The Court of Appeals thus declined Pal's invitation to reverse Hartnek, citing Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997), which provides that only the Supreme Court has the power to overrule, modify or withdraw language from a published opinion of the Court of Appeals.

Pal now asks the Supreme Court to reverse Hartnek because, since that case was decided, "numerous other jurisdictions, analyzing statutory language identical in relevant part to that for the State of Wisconsin, have concluded a criminal defendant can only be convicted of leaving the scene of the same accident once."

Pal is critical of the reasoning in Hartnek. He says the penalty section does not determine the number of violations of § 346.67; it sets the level of punishment.

In Hartnek, a defendant pled no contest to two counts of hit and run, after he struck two vehicles while driving and then fled the scene. 146 Wis. 2d at 191. The Court of Appeals interpreted the statute in effect at the time, § 346.67 and its penalty section counterpart, § 346.74(5).

Pal asserts that, applying the four-part Tappa analysis [State v. Tappa, 127 Wis.2d 155, 161, 378 N.W.2d 883, 885 (1985)] to the applicable statutory scheme, "it is apparent only one offense can be charged when one leaves the scene of an accident defined in § 346.67, regardless of the number of victims in the accident."

The court noted that multiple injury accidents are not rare and the Legislature could have made it clear that only one penalty per accident could be imposed if it had intended to do so. The court concluded that several of the penalty sections could be invoked in a single accident.

Among the cases Pal cites is State v. Stone, 728 S.E.2d. 155 (2012), where the West Virginia Supreme Court addressed a nearly identical issue. In Stone, a defendant was in an accident that led to the death of five persons. He was convicted of five counts. On appeal, the court, interpreting a similar law, applied the rule of leniency, and interpreted the West Virginia Code §17C-4-1 "to mean that a driver of a vehicle involved in an accident resulting in injury or death may be punished only once for leaving the accident scene regardless of the number of injuries or death resulting therefrom.

A decision by the Supreme Court could determine whether a single event of failing to stop and render aid following an automobile accident may give rise to multiple violations of sec. 346.67, Stats., when there are multiple victims.

Justice Daniel Kelly did not participate in this order.

2016AP82 Oklahoma Specialty Insurance Company v. Mecum Auction, Inc.
Supreme Court case type: Certification
Court of Appeals: District II
Circuit Court: Walworth County, Judge Phillip A. Koss
Long caption: Oklahoma Specialty Insurance Company f/d/b/a Houston Specialty Insurance Company, Plaintiff-Appellant, Sam Pierce Chevrolet, Inc. and World of Wheels, Inc., Involuntary-Plaintiffs, v. Mecum Auction, Inc., Defendant-Respondent.

Issue presented: This case, arising from the theft of two collector automobiles from the auction block, examines the validity of exculpatory clauses as applied to a commercial contract. Wis. Stat. § (Rule) 809.62(1r)(c). The Supreme Court reviews whether the same public policy analysis the Supreme Court has employed in invalidating exculpatory clauses involving personal injury claims, culminating most recently in Roberts v. T.H.E. Ins. Co., 2016 WI 20, ¶48, 367 Wis. 2d 386, 879 N.W.2d 492, may be applied to the release of business losses in a contract between two commercial entities.

Some background: Sam Pierce Chevrolet, Inc. (Sam Pierce) and World of Wheels, Inc. (WOW) each entered into separate contracts with Mecum Auction, Inc. (Mecum). They agreed that, in exchange for a fee or a commission, Mecum would sell at auction, respectively, a 1957 Chevrolet Bel Air and a 1961 Chevrolet Impala.

Both Sam Pierce and WOW signed an "Auction Listing Contract." Only Sam Pierce signed an "Auction Selling Contract." Mecum claims that the Auction Selling Contract was incorporated into the Auction Listing Contract WOW signed. The Auction Selling Contract provided, in paragraph 8: "Mecum Auctions is not responsible for lost, stolen or damaged properties; or for any and all liabilities."

The general manager of Mecum, Harold Gerdes, testified that the seller is required to sign the Auction Selling Contract before the car will be auctioned, and that it is a "standard rule contract" in the industry. WOW had done business with Mecum for approximately 10 years and had contracted with Mecum for the auction of at least 810 cars.

The Bel Air and the Impala were delivered to Mecum to be sold at an auction in Monterrey, California. The vehicles were stolen off the auction block.

Sam Pierce and WOW each filed claims with their insurer, Oklahoma Specialty Insurance Company (Oklahoma). Oklahoma paid them, respectively, $52,463.00 and $46,933.30 for their losses.

Oklahoma then commenced a subrogation action against Mecum, alleging breach of bailment and negligence, and seeking recovery of the amounts paid for of the vehicles. Mecum moved for summary judgment against Oklahoma, arguing that it was relieved of liability under paragraph 8 of the Auction Selling Contract.

Oklahoma opposed the motion, arguing that there was an issue of fact as to whether WOW agreed to paragraph 8, because WOW didn't sign the Auction Selling Contract, and even if both Sam Pierce and WOW agreed to paragraph 8, it was unenforceable because it was an exculpatory clause that violated public policy. Oklahoma argued that paragraph 8 was impermissibly broad and all-inclusive, was not highlighted, contained within a document having multiple purposes, and there was no opportunity to bargain, thereby meeting the criteria of an impermissible exculpatory clause.

Mecum maintains that Oklahoma failed to offer any evidence to contradict Mecum's claim that the Auction Listing Contract was incorporated into the Auction Selling Contract. As such, Mecum says there was no issue of fact as to whether WOW had agreed to paragraph 8.

Mecum argues that paragraph 8 is not an exculpatory clause, but rather is an indemnity provision designed to apportion risk. In other words, "[t]he parties agreed to a de facto plan with respect to insurance." And, even if it was an exculpatory clause, Mecum says that the public policy analysis Oklahoma relied on applies to personal injury cases, not to a commercial agreement between two businesses. Finally, Mecum adds that to the extent any part of paragraph 8 was overbroad, it could be severed.

Rejecting Oklahoma's argument that paragraph 8 had to be invalidated, the circuit court granted summary judgment to Mecum and dismissed the complaint,

Oklahoma appealed, leading to this certification.

The Court of Appeals says Wisconsin law typically does not favor exculpatory clauses, and that in Roberts v. T.H.E. Ins. Co., 2016 WI 20, ¶48, 367 Wis. 2d 386, 879 N.W.2d 492, the Supreme Court outlined the factors that may render an exculpatory clause invalid on public policy grounds. The Court of Appeals acknowledges that most – but not all – of the cases where exculpatory clauses have been invalidated under a public policy analysis have involved claims of personal injury. But, at least two cases did involve commercial contracts: Discount Fabric House v. Wisconsin Telephone, Inc., 117 Wis. 2d 587, 345 N.W.2d 417 (1984) and Finch v. Southside Lincoln-Mercury, Inc., 2004 WI App 110, 274 Wis. 2d 719, 685 N.W.2d 154.

The Court of Appeals says that a decision from the Supreme Court will help "develop, clarify [and] harmonize the law" on the validity of exculpatory clauses, as applied to a commercial contract. Wis. Stat. § (Rule) 809.62(1r)(c).

2015AP231 Krueger v. Appleton Area School Dist. Bd. of Ed.
Supreme Court case type: Petition for Review
Court of Appeals: District III
Circuit Court: Outagamie County, Judge Vicki L. Clussman, affirmed
Long caption: State of Wisconsin ex rel. John Krueger, Plaintiff-Appellant-PETITIONER, v. Appleton Area School District Board of Education and Communication Arts 1 Materials Review Committee, Defendants-Respondents-RESPONDENTS

Issues presented:

  • Whether a formal committee, created by school district officials, pursuant to school district policies, in order to carry out school district functions, is a "governmental body" subject to the Open Meetings Act.
  • Whether the Court of Appeals properly struck a portion of John Krueger's reply brief.
  • Whether, if the committee is a "governmental body," it met in violation of the Open Meetings Act.

Some background: Wisconsin's Open Meetings Law, Wis. Stat. § 19.82(1), only applies to "governmental bodies," which are statutorily defined as any "state or local agency, board, commission, committee, council, department or public body corporate and politic created by constitution, statute, ordinance, rule or order."

This case examines what the terms "rule or order" mean, and specifically whether the Appleton Area School District Board of Education and Communication Arts 1 Materials Review Committee was created by "rule or order," such that it was subject to the Open Meetings Law.

Krueger pays taxes in the Appleton School District, and his son attends a district school. In July 2011, Krueger requested that the district provide an alternative ninth-grade Communication Arts 1 course due to concerns with the course reading materials. Krueger wanted the alternative course to use books that contained no profanity, obscenities, or sexualized content.

Lee Allinger, the superintendent of the school district, asked two members of the school district's Assessment, Curriculum, and Instruction Department—Kevin Steinhilber and Nanette Bunnow—to respond to Krueger's concerns. The superintendent did not direct Steinhilber and Bunnow to use any particular process in responding to Krueger’s concerns.

Steinhilber and Bunnow ultimately decided to conduct a review of the existing Communications Arts 1 books to determine whether different books, as opposed to an entirely new course, would resolve Krueger's concerns. They formed the Review Committee to conduct the book evaluation. Steinhilber and Bunnow expanded the Review Committee's duties to include a full review of the course materials for Communications Arts 1 because the materials had not been reviewed for several years. Review of the Communications Arts 1 reading materials also allowed the school district to address the impact of the common core requirements, including those relating to non-fiction reading materials.

The review committee consisted of 17 members, including district administrators, teachers, and staff. It held nine meetings between October 2011 and March 2012. Bunnow, as co-chair, prepared the agendas for the meetings and recorded and distributed the minutes. The review committee read approximately 93 fiction books, assessed their suitability to meet various curricular needs, and forwarded a recommended list of 23 books to the school board's programs and services committee.

In April 2012, the school board’s programs and services committee adopted the recommended reading list as proposed. The school board then adopted the proposed list later that month. The meetings of the school board and its programs and services committee were both open to the public.

Krueger sued, alleging the school board and review committee violated the open-meetings law by failing to give notice of the review committee meetings and excluding the public. See Wis. Stat. § 19.83(1). The trial court held that, because the review committee was not created by a directive of the school board, the committee was not a "overnmental body" subject to the open-meetings law.

Krueger appealed, unsuccessfully. The Court of Appeals held that the review committee was not a "governmental body" subject to the open-meetings law. See Wis. Stat. §§ 19.82(1), 19.83(1). The Court of Appeals also rejected Krueger’s attempt to raise certain new issues on appeal.

According to Krueger, the "question here is one of delegation: May the government evade the Open Meetings Act by having administrators create committees instead of having superior governmental bodies create them directly?"

The school board says that when a committee is created by school employees in the performance of their day-to-day job responsibilities, the committee is not created by "rule or order" of the governing body.

2016AP275 Gabler v. Crime Victims Rights Bd.
Supreme Court case type: Bypass
Circuit Court: Eau Claire County, Judge James J. Duvall
Long caption: The Honorable William M. Gabler, Sr., Petitioner-Respondent, v. Crime Victims Rights Board, Respondent-Appellant, Wisconsin Department of Justice, Respondent.

Issues presented: The issues as posed by petitioner, Judge William M. Gabler, Sr., Eau Claire County Circuit Court:

I. Real and significant questions of state constitutional law are presented regarding the separation of powers doctrine and due process protections in Crime Victims Rights Board proceedings.

  • An executive branch agency cannot sanction a judge for a discretionary scheduling decision.
  • Judges have due process protections in Crime Victims Rights Board proceedings, regardless of the form of sanction imposed.

II. Review by this court is necessary to clarify the law concerning the scope of crime victim rights and authority of the Crime Victims Rights Board.

  • Crime victims do not have a right to demand a judge sentence a defendant on particular charges until the entire case is adjudicated.
  • The Crime Victims Rights Board is required to confirm that the Department of Justice (DOJ) Office of Crime Victim Services has mediated or sought consent to mediate crime victim complaints before it has jurisdiction.

Some background: This case involves a dispute between Eau Claire County Circuit Court Judge William A. Gabler Sr. and the Crime Victims' Rights Board over the timing of a sentencing in a sexual assault case. The Supreme Court examines the relationship between crime victims’ rights as addressed in the Wisconsin Constitution and a trial judge’s inherent authority to control how a case is handled.

Wis. Stat. § 950.09(2) provides for the board to review crime victim complaints and sanction those whom it determines violate a crime victim’s rights.

The board's remedial authority includes the power to issue public or private reprimands, refer a matter to the Judicial Commission, seek equitable relief, and bring punitive forfeiture actions. Wis. Stat. § 950.09(2)(a)-(d).

The Victims Rights Amendment, Wis. Const. Art. 1, § 9m, states that the state shall ensure all crime victims have specific privileges and protections, including timely disposition of a case and reasonable protection from the accused throughout the criminal justice process.

Here, the board concluded Gabler violated a sexual assault victim's rights under state law and the state constitution to a speedy disposition by delaying the defendant's sentencing. Gabler successfully challenged the board's decision in circuit court.

The circuit court held that: (1) certain sections of Wis. Stat. § 950.09(2) unconstitutionally intrude upon the exclusive power of courts to control their dockets and the exclusive power of the Wisconsin Supreme Court to regulate and sanction the judiciary; and (2) the board committed a variety of errors, including some that violated Gabler’s procedural due process rights.

The DOJ appealed. Gabler petitioned the Supreme Court for a bypass of the Court of Appeals, which the Supreme Court granted.

Gabler contends the board violated the separation of powers doctrine by sanctioning him for his discretionary scheduling decision. Gabler also asserts that the manner in which the administrative proceedings before the board were handled violated his due process rights.

The board says there is no separation of powers problem because under the state constitution, the board and the judiciary share authority to set time limits for judicial decision making, and any decisions by the board its decisions are subject to judicial review under Wis. Stat. ch. 227. The board also argues that the trial court's proposed limitations on the board’s remedial powers are untenable because they would deprive crime victims of any remedy in many cases involving judges. The board also argues that it gave Gabler any legal process he was due.

Justice Ann Walsh Bradley did not participate.

2015AP1989 Flug v. LIRC
Supreme Court case type: Petition for Review
Court of Appeals: District III
Circuit Court: Chippewa County, Judge James M. Isaacson, reversed and remanded
Long caption: Tracie L. Flug, Plaintiff-Appellant-RESPONDENT, v. Labor and Industry Review Commission, Wal-Mart Associates, Inc. and New Hampshire Insurance Company c/o Claims Management, Inc., Defendants-Respondents-PETITIONERS

Issues presented: This case involves the interpretation of Wis. Stat. § 102.42(1m), which addresses liability for unnecessary treatment in workers compensation cases. The Supreme Court reviews issues presented by both the Labor and Industry Review Commission (LIRC), and Wal-Mart Associates, Inc. and New Hampshire Insurance Company (collectively referred to as "Wal-Mart"). As posed by the parties:

LIRC:
Does Wis. Stat. § 102.42(1m) require a worker’s compensation claimant to prove that invasive treatment she underwent was related to a compensable work injury?
Wal-Mart:
Does Wis. Stat. § 102.42(1m) apply to invasive treatment that is not related to the employee’s work injury, regardless of whether the treatment is medically necessary, or does it only apply to invasive treatment that is related to a work injury and determined to be medically unnecessary?

Some background: In February 2013, Tracie Flug was employed by Wal-Mart as a department supervisor in one of its stores. Some of her work involved overhead work scanning stock. She developed a severe sudden pain in her right upper back that went down the posterior shoulder and arm to the wrists.

Flug was examined by several physicians to address pain in her neck, shoulder and arm, as well as some numbness at times in her wrist and fingers of one hand. There was some question as to whether the condition was related to work or a pre-existing condition.

Flug had medical imaging tests performed and received a steroid shot, which she said did not improve her condition. She was referred for surgery—an anterior cervical discectomy with fusion/fixation at the C5-C6 and C6-C7 levels—which was performed on June 4, 2013.

Approximately one month after the surgery, Flug reported she was "doing excellent" and was feeling "almost 100%." Flug returned to work on July 17, 2013, with a 20-pound lifting restriction. That restriction was increased to 30 pounds in August 2013 and was eliminated in November 2013.

Wal-Mart initially paid Flug worker's compensation benefits. However, Wal-Mart's worker's compensation carrier retained a physician to conduct an independent review of Flug's medical records. A claims manager concluded that Flug "had reached end of healing for your work related injury prior to surgery on 6/4/13…" Flug was allowed no permanent partial disability, and medical and disability payments stopped.

In August 2013, Flug filed a hearing application with the Worker's Compensation Division of the Department of Workforce Development. She sought medical expenses, temporary total disability benefits from June 22, 2013 through August 8, 2013, and permanent partial disability benefits.

The LIRC denied her claim, determining that Flug failed to prove that the surgery was necessary to treat her neck and shoulder strain. The surgery was, instead, performed to fix a pre-existing condition. The circuit court affirmed; the Court of Appeals reversed, narrowing the issues now before the Supreme Court.

A decision by the Supreme Court is expected to clarify whether Wis. Stat. § 102.42(1m) requires an employer to pay disability benefits if medical treatment may be unrelated to a compensable work injury, but the employee has a good faith belief that the medical treatment is related to a compensable work injury.

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:

Barron
2015AP771 KNA Family v. Fazio

Brown
2015AP999-1000-CR State v. McGuire
2015AP297-CR State v. Hatcher
2015AP969-CR State v. Gonzalez

Calumet
2015AP872 State v. Neuens–Justice Daniel Kelly did not participate in this order.

Columbia
2015AP2656-CR State v. Hams

Dane
2014AP333-CR State v. Cole
2014AP697 Richards v. Heise
2014AP2012-CR State v. Hill–Justices Shirley S. Abrahamson and Ann Walsh Bradley dissent.
2015AP1314 Santiago v. LIRC–Justice Ann Walsh Bradley did not participate.
2015AP1453-CR State v. Robinson
2015AP1602-CR State v. Benitez
2016AP1694-W Nora v. Sellen–Justice Daniel Kelly did not participate in this order.
2014AP1998 State v. Thomas–Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley dissent. Justice Daniel Kelly did not participate in this order.
2015AP836 Crabtree v. Westfield
2015AP893-CR State v. James–Justice Shirley S. Abrahamson dissents. Justice Daniel Kelly did not participate in this order.
2015AP1870 Woodburn v. Rock Solid Ventures–Justice Daniel Kelly did not participate.
2016AP491 Mitchell v. Wis. DHS–Justice Daniel Kelly did not participate in this order.
2016AP1531-W Nora v. Winiarski

Dunn
2015AP1771 Dunn Co. DH&HS v. M.R.–Justice Daniel Kelly did not participate in this order.
2015AP1772 Dunn Co. DH&HS v. C.R.R.–Justice Daniel Kelly did not participate in this order.

Eau Claire
2015AP16 State v. Beauchamp–Justice Shirley S. Abrahamson dissents. Justice Daniel Kelly did not participate.
2015AP2083 Bakken v. the City of Eau Claire–Justice Rebecca Grassl Bradley dissents.

Fond du Lac
2016AP1433-W Jones v. Schaub
2014AP2882 Romero v. West Bend Mut. Ins. Co.–Justice Annette Kingsland Ziegler did not participate.

Grant
2015AP1018 Estate of Collis v. Hazel Green Rescue Squad–Justice David T. Prosser, Jr. dissents.
2015AP905-06-CR State v. Sedlak

Green Lake
2015AP2069-CR State v. Schwochert

Juneau
2014AP2555 Stransky v. Rockweiler–Justice Daniel Kelly did not participate in this order.
2015AP1723 Kaufman v. Kemper

Kenosha
2015AP811-CR State v. McDowell–Justice Daniel Kelly did not participate in this order.
2015AP1302-CR State v. Dunham
2015AP1623-CR State v. Slaughter–Justice Daniel Kelly did not participate in this order.
2015AP1160-CR State v. Cooper

La Crosse
2015AP641-CR State v. Petty–Justice Daniel Kelly did not participate in this order.
2015AP1764-CR State v. Thompson

Lafayette
2014AP2701-CR State v. Stietz–Justice Ann Walsh Bradley did not participate. Justice Daniel Kelly did not participate in this order.

Marinette
2015AP1951-CRNM State v. Block
2015AP742-CR State v. Hayes

Milwaukee
2014AP995-96-CRNM State v. Carpenter
2014AP2252-CR State v. Calderon-Encarnacion–Justice Daniel Kelly did not participate in this order.
2014AP2622-CR State v. Woods–Justice Daniel Kelly did not participate in this order.
2014AP2825-CR State v. Triplett–Justice Daniel Kelly did not participate in this order.
2014AP2915 State v. Starks–Justice Daniel Kelly did not participate in this order.
2015AP209 Sanchez v. LIRC–Justice Daniel Kelly did not participate in this order.
2015AP590-CR State v. Wesley
2015AP623-CR State v. Long–Justice Daniel Kelly did not participate in this order.
2015AP657-58-CR State v. Redmond–Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley dissent.
2015AP781 Eiland v. Anderson–Justice Daniel Kelly did not participate in this order.
2015AP895 Bully v. Allstate Prop. & Cas. Ins. Co.–Justice Shirley S. Abrahamson dissents. Justice Daniel Kelly did not participate in this order.
2015AP1087-CR State v. McGee
2015AP1088-CR State v. Cameron–Justice Shirley S. Abrahamson dissents.
2015AP1096-W Gillespie v. Foster
2015AP1126-CR State v. Green–Justice Daniel Kelly did not participate in this order.
2015AP1190-CR State v. Allen–Justice Shirley S. Abrahamson dissents.
2015AP1195-CR State v. Berry–Justice Shirley S. Abrahamson dissents. Justice Daniel Kelly did not participate in this order.
2015AP1267 Wauwatosa Savings Bank v. Scruggs–Justice Daniel Kelly did not participate in this order.
2015AP1275-CR State v. Garrison
2015AP1347-48 State v. Hernandez
2015AP1420-CR State v. Heidke
2015AP1617 State v. L.N.S.–Justice Rebecca Grassl Bradley did not participate. Justice Daniel Kelly did not participate in this order.
2015AP1618 State v. A.M.B.–Justice Rebecca Grassl Bradley did not participate. Justice Daniel Kelly did not participate in this order.
2015AP1754-CR State v. Liederbach
2016AP194-95 State v. J.J.–Justice Rebecca Grassl Bradley did not participate. Justice Daniel Kelly did not participate in this order.
2016AP449 State v. Wilkinson–Justice Daniel Kelly did not participate in this order.
2016AP824 State v. C.A.P.–Justice Rebecca Grassl Bradley did not participate.
2016AP933 McKinnie v. Bartow–Justice Daniel Kelly did not participate in this order.
2015AP618 Sasson v. Kravit–Justice Annette Kingsland Ziegler did not participate.
2015AP963-CRMN State v. Kahill
2015AP1614 State v. V.A.
2015AP2031 Milwaukee Co. v. C.L.-K.
2015AP2048 State v. Bouldin
2015AP2236-CR State v. Banks
2015AP2336-CR State v. Anton
2016AP440-41 State v. D.B.–Justice Rebecca Grassl Bradley did not participate.
2016AP735-36 State v. D.L.–Justices Shirley S. Abrahamson and Ann Walsh Bradley dissent.
2016AP817-18 State v. J.M.
2016AP827-W Luckett v. Meisner

Oconto
2015AP457-CR State v. Schmidt

Outagamie
2012AP2464/2013AP2681 M.L. v. Outagamie Co.–Justice Shirley S. Abrahamson dissents.
2015AP1571-72-CR State v. Ort
2015AP1392 State v. Edmonson

Ozaukee
2015AP1064-FT Suburban Motors of Grafton v. Gamerdinger–Justice Daniel Kelly did not participate in this order.
2015AP954-CR State v. Reddick

Portage
2015AP1487-CR State v. McCaskill
2015AP1855-CR State v. Pagenkopf

Racine
2015AP609-CR State v. Rogers–Justice Daniel Kelly did not participate in this order.
2015AP1779-CR State v. Estrada

Rock 2015AP15 State v. Garcia 2015AP1552-CR State v. Brown

Sauk
2015AP1035-CR State v. Sullivan–Justice Shirley S. Abrahamson dissents. Justice Daniel Kelly did not participate in this order.
2015AP1210-CR State v. Burger–Justice Shirley S. Abrahamson dissents.

Shawano
2015AP1004-CR State v. Weso–Justice Daniel Kelly did not participate in this order.

Sheboygan
2016AP551-52/2016AP1235-W State v. Chavez
2015AP268-CR State v. Rickaby
2015AP1787-CR State v. Applewhite

St. Croix
2015AP140 Village of Somerset v. Hoffman–Justice Shirley S. Abrahamson dissents.
2015AP496-CR State v. Greeley–Justice Daniel Kelly did not participate in this order.

Trempealeau
2015AP52 Middleton v. Am. Fam. Mut. Ins. Co.
2015AP806 Okroley v. Doro, Inc.

Vernon
2014AP2953-54-CR State v. Molzahn

Walworth
2014AP2880 State v. Ruman–Justice Daniel Kelly did not participate in this order.
2015AP1746-47-CR State v. Mezo-Reyes
2015AP995 State v. Rzeplinski
2016AP865 Wilmot v. McMaster

Washington
2015AP97-CR State v. Chitwood–Justice Daniel Kelly did not participate in this order.

Waukesha
2014AP1388 State v. Schroeder
2015AP803-04-CR State v. Wegge
2016AP222 Waukesha Co. DH&HS v. K.R.G.–Justice Daniel Kelly did not participate in this order.
2015AP1429-CR State v. Williams
2015AP1628 Slater v. DOT
2015AP2054 Harry v. C&C Admin., LLC
2015AP2331-FT Wexford Heights v. Town of Lisbon Plan Comm.–Justice Daniel Kelly did not participate.

Waupaca
2015AP2168 Bernegger v. Thompson

Winnebago
2015AP2561 Victory Valley Church v. George
2015AP161-CR State v. Thurber–Justices Shirley S. Abrahamson and Ann Walsh Bradley dissent.
2015AP2619 Winnebago Co. v. M.O.S.

Wood
2015AP1820 Estate of Smith v. Agne

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