Supreme Court accepts six new cases

Madison, Wisconsin - December 19, 2008

The Wisconsin Supreme Court has voted to accept six new cases. The Court also acted to deny review in a number of cases. The case numbers, issues, and counties of origin are listed below. Court of Appeals’ opinions/certification memos available online for the newly accepted cases are hyperlinked.  

2007AP2382-CR  State v. McClaren
In this criminal case, the state has asked the Supreme Court to review if a trial court may order a defendant who claims self-defense to make pretrial disclosure of possible evidence of the victim’s prior violent acts.

Some background: Jason McClaren is charged with one count of aggravated battery by use of a dangerous weapon, one count of attempted first-degree intentional homicide, and one count of first-degree reckless injury. McClaren is accused of hitting Conrad Goehl in the neck with a pick axe during an incident in McClaren’s garage on March 31, 2007.

During a videotaped interview with police following the incident, McClaren stated that he had acted in self-defense.  He asserted that he knew that Goehl had a violent nature and that Goehl had been "in and out of prison." 

Prior to trial, McClaren filed a motion in limine indicating that he intended to present evidence of specific instances of conduct that showed violence or a violent nature by Goehl.  This was done to support McClaren's claim of perfect self-defense.

The state did not oppose McClaren's attempt to submit such McMorris evidence. See McMorris v. State, 58 Wis. 2d 144, 205 N.W.2d 559 (1973) (allowing defendant to introduce evidence concerning prior specific instances of violent conduct by the victim to show the defendant's knowledge of that violent character).

The circuit court indicated that McClaren would be allowed to introduce such evidence at trial, but ordered McClaren to disclose the nature of such evidence to the state prior to trial.  In particular, the circuit court required McClaren to give the state before trial "a (written) summary of all specific instances of the (complainant's) violent conduct of which the defendant was aware and that the defendant intends to introduce at trial, including witnesses to such conduct and the date and place such conduct occurred." 

The Court of Appeals reversed the circuit court's order. McClaren argued that the circuit court's order requiring pretrial disclosure violated his state and federal constitutional right against compelled self-incrimination. He also claimed that if the circuit court would exclude evidence for failure to comply with the disclosure requirement, the exclusion would violate his constitutional right to due process and to present a defense. 

The Court of Appeals concluded that the trial court’s general superintending authority cannot be read so expansively as to allow a court to require pretrial disclosure that is not authorized under the criminal discovery statute. The Court of Appeals also stated it did not have authority to promulgate rules of criminal practice or procedure.

The state contends that if disclosure is delayed until the middle of trial, the circuit court will be obligated to grant a continuance so the opposing party may investigate and prepare rebuttal. The state also contends that disclosure would be consistent with the federal rule of evidence, which requires the prosecution to provide pretrial notice of “other acts” evidence committed by the defendant.

A decision by the Supreme Court may clarify trial court authority regarding disclosure rules in this type of case. From Jefferson County.

2007AP1754   Hocking v. City of Dodgeville
This certification asks the Supreme Court to consider a possible conflict between “reasonable use” rules regarding liability for surface water runoff and a previous decision that there may be liability under certain circumstances for failing to abate a nuisance.

Specifically, the District IV Court of Appeals certified the following issue: Can an uphill landowner who has done nothing to affect surface water flow be held liable to the owner’s downhill neighbor for damages sustained as a result of the water flow?

Some background: In 1991, the City of Dodgeville developed a subdivision on land surrounding a single-family home that Glenn and Louann Hocking had purchased in 1978. When the Hockings purchased the home, the nearest home was more than 200 feet away and they did not have problems with water collecting on their property.

Since 1991, after curb and gutter were installed and a number of homes were built, the Hockings claim that significant amounts of water have collected on their property and in their basement. In 2003, mold was discovered in their basement, the walls were unstable, and they were forced to move out, the Hockings contend.

In August 2006, the Hockings filed suit against the city and a number of individuals, including the owner and a previous owner of a home just uphill from the Hockings. The circuit court issued summary judgment in favor of the defendants, concluding that the property owners had not altered their property to affect water flow.

The Hockings appealed, asking the Court of Appeals to consider if the facts supported the circuit court judge’s findings; if an adjacent landowner has a duty to mitigate the nuisances; and if there is a duty, could there be liability for an adjacent landowner failing to mitigate the nuisance.

A decision by the Supreme Court may help resolve a possible conflict between the "reasonable use" rule regarding liability for surface water runoff adopted in State v. Deetz, 66 Wis. 2d 1, 224 N.W.2d 407 (1974), and the court's statement in Milwaukee Metropolitan Sewerage Dist. V. City of Milwaukee, 2005 WI 8, 277 Wis. 2d 635, 691 N.W.2d 658 (MMSD), that there can be liability under certain circumstances for negligently failing to abate a nuisance.  From Iowa County.
2007AP2307-CR  State v. Michael Scott Long
Michael Scott Long, the defendant in this criminal case, is serving life in prison without parole as a result of a penalty enhancer under the provisions of Wisconsin’s “three-strikes law,” Wis. Stat. § 939.62(2m)(b)1 and (c).
Long asks the Supreme Court to review whether the facts support his convictions of false imprisonment and second-degree sexual assault as a persistent repeater under the three-strikes law.
This dispute involves the interpretation of provisions of a homeowners insurance policy regarding replacement value of a home destroyed by fire.
This case examines whether Wisconsin’s hate crime statute, § 939.645(1)(b), permits additional punishment when applied to the facts of this disorderly conduct case, referred to by the defendant as a “speech-only” offense.

Some background, according to the Court of Appeals: While wearing white spandex shorts, Long asked a female desk clerk at a hotel if the spandex was supposed to be revealing. She responded it was supposed to be tight. Long then requested that she accompany him to a nearby breakfast room where he asked her to rate his penis. Long asked if he could hug her, and the victim answered “no” and started to back away. Long then grabbed her and held her tightly and forcefully from the front and from behind, with his clothed penis touching her buttocks, inner thigh and groin area. Long then went across the room and pulled down his pants, exposing his penis. The victim turned away and left the room.

A jury convicted Long of false imprisonment and second-degree sexual assault. At sentencing, the court applied the persistent repeater penalty enhancer under § 939.62, based on Long's previous convictions in Minnesota -- one was a fourth-degree criminal sexual conduct on Jan. 7, 2004; the other a burglary on Dec. 18, 2003. Long's conduct with respect to those convictions bears similarities to the facts charged here.

The Court of Appeals affirmed the trial court’s decision that these acts would constitute a second-degree sexual assault and burglary if committed in Wisconsin.

Long claimed the Minnesota burglary conviction would not have constituted a serious felony in Wisconsin because the crime he committed after making an illegal entry would have constituted fourth-degree sexual assault in Wisconsin, a misdemeanor. Long also argues the “force” used in the case now on appeal is not the type of force envisioned by the Legislature as second-degree sexual assault.

Long does not challenge the facts underlying his offenses; he challenges the legal significance of those facts. Until the three strikes legislation, the type of conduct charged here would not have resulted in life imprisonment. The stakes are “so great, the need for accurate decision making is heightened,” Long contends. From St. Croix County.

2007AP1992   Donaubauer v. The Farmers Auto Ins. Assoc.
Some background: On April 15, 2003, Joseph P. Donaubauer’s house was destroyed by fire started by a passing train owned by the Union Pacific Railway Co. Donaubauer’s insurer, The Farmers Automobile Insurance Association, paid approximately $530,000 in fire loss claims to Donaubauer, who made an additional claim under the policy’s Home Guard replacement endorsement.

Farmers calculated that Donaubauer’s house could be rebuilt with equivalent construction for $380,819.38. Donaubauer sued, contending replacement value of $720,309. Under a process initially agreed upon to determine replacement value, appraisers concluded that full replacement cost was $396,260.75. Donaubauer twice turned down offers, including one of an additional $90,000, to settle terms of the Home Guard provision.

On April 12, 2004, Donaubauer sued Farmers, alleging, among other things, issues on appeal –
breach of contract, bad faith and that Farmers failed to pay the “actual replacement value of the home.”

Farmers contends that Donaubauer’s attorney agreed to follow an appraisal process, similar to an arbitration process, to determine the replacement value of the home as outlined in the policy.

The circuit court found there had been a written agreement to resolve the case through the appraisal process and declined to set aside the appraisal process as a way to determine replacement value. The circuit court granted summary judgment to Farmers and dismissed Donaubauer’s breach of contract and bad faith claims. The Court of Appeals affirmed, concluding the appraisal process was designed as an alternative dispute resolution process and that grounds for vacating an award are extremely narrow.

Donaubauer has asked the Supreme Court to review if the standards for challenging appraisals and arbitrations precisely mirror one another and to provide guidance on the method to challenge an appraisal. He also asks if it was appropriate for him to be forced to participate in a binding appraisal process, even though nothing in his insurance policy mandated a binding process. He also wants the Supreme Court to review if he should have been allowed to conduct discovery on the undertakings of the appraisal process.

Farmers contends that Donaubauer agreed in writing to the appraisal process and that his attorney acknowledged doing so in court. Farmers also contends the Court of Appeals correctly decided that under the facts, requiring actual replacement under the policy was not unfair but commercially reasonable.

A decision by the Supreme Court could clarify law in this area. From Milwaukee County.

2007AP2024-CR   State v. Welda
Some background: The following facts, outlined by the Court of Appeals, are taken from identical complaints filed against three defendants, Anthony Welda, Victoria Trappe, and Timothy Wagner.

The defendants were charged with disorderly conduct and hate crime enhancer after Janesville police had been dispatched to investigate a reported disturbance where 10 to 15 people had gathered in Trappe’s front yard.

Trappe told police the disturbance was about “niggers” on her property without her permission and that that the officers needed to “get these niggers off my property.” The officer told Trappe to watch her language and to go back onto her porch, which she did. As she was walking back to her porch, she continued to yell the word “niggers” and stated that someone was going to end up “getting taken care of.”

Two African American men had approached Trappe’s home after being told by two child relatives that two men outside at Trappe’s residence had called them “niggers.” One of the defendants, Welda, told police that he, Wagner and others had been talking about the “niggers” in Beloit when two children, both African American, overheard them.

Welda stated that during the course of the confrontation with the two African-American males, Wagner retrieved a confederate flag from his truck and waved it around them.

A police officer told Wagner that “niggers” was a word he should not use, to which Wagner replied that is “bullshit,” and that he will use the word any time he wants.

After being cited, Trappe, Wagner and Welda successfully moved the circuit court to dismiss the hate-crime enhancer. Trappe and Wagner had argued there were insufficient facts contained in the complaint to support the application of the hate crime penalty enhancer.

Welda argued that the charge of disorderly conduct and the increased penalty under the hate crimes law were multiplicitous, in violation of double jeopardy provisions in the state and federal constitutions. The circuit court agreed.

The Court of Appeals reversed, noting the penalty enhancer required proof that the defendants "intentionally selected the person against whom the crime . . . is committed . . . in whole or in part because of the actor's belief or perception regarding the race . . . of that person. . . ."  § 939.645(1)(b), Stats.

The facts of the case support the allegation that Wagner and Trappe used the term “nigger” because of the race of people targeted by their comments, the Court of Appeals found. In addition, the Court of Appeals concluded Welda failed to show that the Legislature had not intended to provide for cumulative punishments under the hate crime statute.

Welda petitioned for review by the Supreme Court, which is expected to consider three issues:
- If Wisconsin's hate crime law permits additional punishment in a speech-only disorderly conduct case when the speech itself forms the basis for the penalty enhancer?
- Whether Wisconsin’s hate crime law, § 939.645(1)(b), Stats., is unconstitutional as applied to the facts of this case.  See R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)?
- Whether this is in fact a “speech only” disorderly conduct case or whether the facts would support a disorderly conduct charge based on the defendant’s actions in addition to his speech? From Rock County.

2007AP2314     Biskupic v. Cicero
In this case, Vince Biskupic, a former Outagamie County district attorney and an unsuccessful candidate for Wisconsin attorney general in 2002, asks the Supreme Court to reinstate his libel and slander lawsuit filed against eight defendants, including a Shawano newspaper that falsely reported he had been convicted of bribery and graft.

The Court of Appeals agreed that the newspaper had published false statements, but concluded that Biskupic was a public figure and that he had not proven that the defamatory statements had been made with actual malice as required under libel laws.  Actual malice means that the speaker or writer made the false statement with actual knowledge that it was false or with reckless disregard for whether the statement was false.

In August 2004, the Shawano Leader newspaper reported that circuit court judges in the Ninth Judicial Administrative District had voted to stop allowing judges to order convicted defendants to pay money to nonprofit organizations.

In its reporting, the newspaper quoted Stacey Cicero, the director of an anti-domestic violence group as saying: “ ‘I believe it was done in response to the bribery and graft cases involving former Winnebago County District Attorney Vince Biskupic.’”

The article continued with an unattributed statement: “Biskupic was convicted of accepting bribes to dismiss cases. Some of the money that defendants paid to have their cases dismissed went to organizations that he (Biskupic) was involved in or into his own pocket.”

Biskupic was never Winnebago County District Attorney, and he was never convicted of accepting bribes. Biskupic had served as an assistant district attorney in Winnebago County from 1989 to 1994 under then-Winnebago County District Attorney Joe Paulus. In 2002, Paulus was voted out of office amid bribery allegations and Paulus was convicted in 2004 on two federal counts that he accepted approximately $50,000 to fix cases.

According to the Court of Appeals decision in Biskupic’s libel suit: “During Biskupic’s 2002 campaign for attorney general, open records requests revealed payments by Outagamie County criminal defendants and potential defendants to a crime prevention fund Biskupic controlled. Some of the payments were ordered as part of the defendants’ sentences, while other payments were made under agreements in which no charges were filed or in which defendants entered a deferred prosecution agreement.”

A Wisconsin Ethics Board investigation expressed concerns about the practice, but did not sanction Biskupic. The board concluded Biskupic did not profit personally from the fund nor was he affiliated with any organization that received money from it.

Biskupic filed suit in August 2005, alleging Cicero’s comments were slanderous and that the Leader, which twice attempted to correct the story in print, had libeled him.

The circuit court granted summary judgment in favor of Cicero, the Leader and reporter, who used the byline name Joe Vandel at the time. The Court of Appeals affirmed the circuit court, which concluded “the defamation occurred as a result of confusion and negligence, not malice.”

Biskupic asks the Supreme Court to review three issues:

-- Based on the applicable case law, and considering the evidence in the light most favorable to the non-moving party (the petitioner), were the defendants entitled to summary judgment?

-- For purposes of the debate reported in the August 23, 2004 newspaper article, was the petitioner a "limited-purpose" public figure?

-- Was the plaintiff entitled to a sanction against the newspaper defendants or a jury instruction on spoliation based on the destruction of reporter's interview notes subsequent to the newspaper defendants being placed on notice of potential libel litigation? From Shawano County.

Review denied: The Supreme Court denied review in the following cases. Supreme Court review is a matter of judicial discretion, not of right, and will be granted only when special and important reasons are presented. As the state’s law-developing court, the Supreme Court exercises its discretion to consider for review only those cases that fit certain criteria, but these criteria neither control nor fully measure the Court’s discretion (see Wis. Stat. (rule) § 809.62). Except where indicated, these cases came to the Supreme Court via petition for review by the party who lost in the lower court.

2008AP1685-LV Dan Samp Ag. V. Am. Fam.

2008AP521-CRNM State v. Upthegrove

2007AP2443-CR State v. Lins

2007AP687-CR State v. Sussman

2007AP827  Westphal v. Smelser

2007AP1646-50 State v. Larkin

2007AP1698  Glasbrenner v. Obriecht

2007AP2133  Lorge v. Rabl
Justice David T. Prosser, Jr. did not participate.

2007AP2923  Flint v. Noble

2008AP184  Young v. West Bend Mut.
Justice Annette Kingsland Ziegler did not participate.

Eau Claire
2007AP883/2289-CR State v. McReynolds

Fond du Lac
2007AP2062  Weinke v. Freeman
Justice Ann Walsh Bradley dissents.

2007AP2474  Jacobs v. DOC
Justice Ann Walsh Bradley did not participate.

2008AP277-FT City of Mineral Point v. Ford

2007AP2260-CR State v. Brush

2008AP174-CRNM State v. Chavez-Chavez

2008AP2624-OA Harden V. Boatwright

2008AP2352-W Drexler v. Hompe

2005AP3063-W David L. v. DOC

2006AP285-CR State v. Harris

2006AP746  State v. Cannon

2006AP2031-CR State v. Wallace

2006AP2471-CR State v. Smith

2006AP2612-CRNM State v. Kloss

2007AP626-CRNM State v. Hughes

2007AP1021  State v. Walker

2007AP1028-CR State v. Tillery

2007AP1119-W Harris v. Pollard

2007AP1356-CRNM State v. Terry

2007AP1699-CR State v. Jones

2007AP2120  State v. Smith

2007AP2183-CR State v. Evans

2007AP2249  Lampe v. Allstate Ins.

2007AP2296-CR State v. Pride

2007AP2327-CR State v. Wilber

2007AP2407  Snapp v. Rivera

2007AP2552-CR State v. Camacho

2007AP2607-CR State v. Simmons

2007AP2761-CRNM State v. Williams

2007AP2955-CR State v. Sileno

2007AP2963  State v. Boyd

2008AP196  State v. Otis G.
Chief Justice Shirley S. Abrahamson dissents.

2008AP1542  State v. Jaworski

2007AP309-CR State v. Zinn

2008AP1574  Ripley V. Quistorff

2007AP1124-CR State v. Trattner

2008AP373  State v. Smith

2008AP344-CRNM State v. Petrowsky

2008AP2431-W Conner v. Cr. Ct. Richland Co.

2007AP2550-W Steel v. Spooden

2007AP2108  State v. Bohardt

2007AP1734-CR State v. Applewhite

2008AP2407-W Magritz v. Gonring
Justice Annette Kingsland Ziegler did not participate.

2008AP2580-W Polizzi v. Gonring
Justice Annette Kingsland Ziegler did not participate.

2007AP438  State v. Schweiner

2007AP2147  Parkland Plaza Vet v. Gerard

2008AP2408-W Stuart v. Murray
Justice Annette Kingsland Ziegler did not participate.

2007AP2173  Renaissance Learning v. Omron

2008AP640-CRNM State v. Meinen

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