Supreme Court accepts four new cases

Madison, Wisconsin - January 20, 2011

The Wisconsin Supreme Court has voted to accept four 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 available online for the newly accepted cases are hyperlinked.

2009AP1351-CR State v. Kandutsch
In this drunken driving case, the Supreme Court is asked to review if a report from an electronic monitoring device may be admitted into evidence without expert testimony as to the scientific validity, accuracy, and reliability of the device, and if a report generated by an electronic monitoring device is inadmissible hearsay.

Some background: Police received a call that Gregg B. Kandutsch was trying to enter the home of his estranged wife. He severely injured himself while breaking into the house and was taken to a hospital.  A blood draw revealed a blood-alcohol content of 0.23 percent. When asked how the defendant would have arrived at her home, his wife pointed out a green van in a nearby parking lot.  Kandutsch was charged with OWI, fifth and subsequent offense.

At the time of the incident, the defendant was being supervised under an electronic monitoring program that noted if Kandutsch moved out of range – about 150 feet away from the radio-frequency receiving device. The state introduced daily summary reports showing Kandutsch’s transmitter went out of range approximately 20 minutes before police received a call that the defendant was trying to break into his estranged wife’s house. The state argued that, based on the timing of events, the defendant must have been intoxicated by the time he started driving.

Kandutsch objected to the admission of the daily summary reports, arguing that the state supplied an insufficient foundation and that they were inadmissible hearsay. 

The circuit court admitted the evidence, concluding they were properly authenticated and generated in the ordinary course of business. A jury found Kandutsch guilty of fifth or subsequent offense OWI.  He appealed, and the Court of Appeals affirmed.

The Court of Appeals concluded that the electronic monitoring system’s operation is not so unusually complex or esoteric as to demand the assistance of expert testimony.  It also concluded that readings generated by a machine are generally excluded from the realm of hearsay because they are the result of a process, not a statement by a declarant.  From Marathon County.

2009AP2784 Klemm v. American Transmission Co.
This case examines Wis. Stat. § 32.28(3)(d) and litigation costs arising from a dispute over the value of land involved in an easement for land to be used for a high-voltage power transmission line.

Section 32.28(3)(d) provides that litigation expenses shall be awarded to the condemnee if “the award of the condemnation commission under Wis. Stat. § 32.06(8) exceeds the jurisdictional offer or the highest written offer prior to the jurisdictional offer by at least $700 and at least 15 percent. . . .”

More specifically here, Supreme Court is asked to review whether § 32.28(3)(d) requires litigation expenses to be awarded to a property owner who conveys property in lieu of condemnation (meaning no jurisdictional offer was ever issued) and where the property owner then appeals the amount of the just compensation award and ultimately receives an amount that exceeds the amount originally paid by more than $700 and 15 percent.

Some background: American Transmission Company (ATC) had sought an easement from Mark and Jeanne Klemms to place high-voltage electric transmission lines across their property. ATC obtained an appraisal, which ATC provided to the Klemms, indicating the easement would decrease the value of their property by $7,750.

The Klemms agreed to accept the $7,750 compensation ATC offered in negotiations, with the understanding they had the right to appeal the amount of the award. Accordingly, the Klemms conveyed the requested easement, which was recorded along with a certificate of compensation.  The Klemms subsequently exercised their right to appeal. They then obtained an appraisal, which they presented to ATC three weeks prior to the condemnation commission hearing. The commission awarded the Klemms just compensation in the amount of $10,000.

The Klemms then sought litigation expenses in the circuit court, which held that the Klemms were entitled to litigation expenses under Wis. Stat. § 32.28(3)(d), even though they accepted ATC’s negotiated offer and there was, consequently, no jurisdictional offer. ATC appealed, arguing the court misinterpreted § 32.28(3)(d), and the Court of Appeals reversed.

A group of attorneys who regularly practice in the field of eminent domain law have filed a motion for leave to file an amicus brief in support of the petition for review.  ATC and amici argue that the Court of Appeals’ decision will affect many condemnations and will result in different treatment for condemnees who convey their property in lieu of condemnation and similarly situated condemnees who do not.  From Marathon County.

2009AP2934 State v. Buchanan
In this case, the Supreme Court examines issues related to Deandre Buchanan’s conviction for possession of less than 200 grams of THC or less with intent to deliver after police recovered the drug while searching his vehicle during a traffic stop.

The key issue here is whether case law supports the arresting officer’s decision to use the petitioner’s arrest history as part of the basis for performing a protective search following a routine traffic stop.

 Specifically, Buchanan asks the Supreme Court to review two issues:

  1. Under the totality of the circumstances, did (the state trooper) have an objectively reasonable suspicion that Mr. Buchanan was armed and dangerous?
  2. Did the trial court err in concluding that the marijuana stem found in Mr. Buchanan’s vehicle was in “plain view?”

Some background: At approximately 9:37 p.m. on March 4, 2009, state trooper Randy Gordon clocked Buchanan’s vehicle travelling at 78 miles per hour in a posted 65 mile-per-hour zone.  After Gordon activated his emergency lights, he noticed Buchanan weaving within the lane.  Using his vehicle’s spotlight, Gordon could see Buchanan moving his shoulder and arm up and down.  Gordon would later testify this movement “looked like [Buchanan] was stuffing something either underneath the seat or under his foot area.”

Buchanan stopped his vehicle and Gordon informed Buchanan he was speeding.  Buchanan explained his speedometer was broken.  Gordon asked for Buchanan’s license, and then returned to his squad car.  Throughout the exchange, Buchanan appeared very nervous, and his hands were shaking. 

While checking Buchanan’s license, Gordon learned of a pending charge for possession with intent to deliver.  Gordon also learned that Buchanan had multiple previous arrests for murder, armed robbery and false imprisonment.  Gordon waited for a backup officer before approaching Buchanan again.

Concerned that Buchanan was armed, the officers opted to conduct a protective search of Buchanan and the portions of the vehicle accessible from the driver’s seat.  The pat-down search produced no weapons.  As Gordon bent down to inspect the area around the driver’s seat, he smelled marijuana and noticed a green plant underneath the ashtray.  Gordon tested the plant, confirmed it was marijuana, and arrested Buchanan. 

Buchanan moved to suppress the drug evidence.  The circuit court denied the motion and the matter proceeded.  On appeal, the key issue was whether the protective search violated Buchanan’s constitutional rights because it was not based on reasonable suspicion that he was dangerous.  The court of appeals affirmed and this petition followed. From Trempealeau County.

2009AP1579 State v. West
In this case, the Supreme Court is asked to review statutory and constitutional issues related to Wis. stat. ch. 980, the state’s law that allows civil commitment for persons deemed to be sexually violent.

Some background: Edwin West was committed under ch. 980 in 1997. In April 2008 he filed a petition for supervised release, which was denied by the circuit court in a decision affirmed by the Court of Appeals.

Specifically, West’s petition raises the following issue: Does 2005 Wis. Act 434 § 118 (codified at Wisconsin Statutes § 980.08(4)(cg)) shift the burden of proof at a supervised release hearing under Chapter 980 to the civilly-committed respondent?

Prior to the effective date of the new legislation on Aug. 1, 2006, the statutory presumption was to grant a petition for supervised release, and the state clearly bore the burden to show that release was not warranted. West argues that the new statute, which does not explicitly assign the burden of proof, should be similarly interpreted to place the burden on the state. Among other things, he urges that the supervised release provision should be treated like a criminal statute under the rule of lenity and be given a narrow construction in favor of the person whose liberty is at stake. In addition, West argues that the statute as modified cannot be interpreted to shift the burden of proof to the committed person because such a shift would violate constitutional due process and equal protection rights.

West’s petition for review essentially asks this court to review the rules of law established by the Court of Appeals in State v. Rachel, 2010 WI App 60, 324 Wis. 2d 465, 782 N.W.2d 443, which decided the burden of proof and constitutionality issues contrary to the position taken by both Rachel and West. However, Rachel never reached the Wisconsin Supreme Court.

After conducting an evidentiary hearing, the circuit court concluded that West had not satisfied the new statutory criteria and denied his petition for supervised release.

The court of appeals affirmed in a per curiam decision, stating that it had already decided these issues contrary to the position of the committed individual in Rachel.  Thus, it was bound by the Rachel decision to reject West’s arguments that the burden should be on the state and that to place the burden of proof on the committed person would be unconstitutional.

West notes that only approximately 20 of the 350 people committed under Chapter 980 are on supervised release.  Thus, he contends that resolution of the statutory interpretation and constitutional issues will have a statewide impact on a significant number of individuals. From Milwaukee County.

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:

2009AP1242   State v. Vandenberg
2009AP1353 The Selmer Co. v. Rinn - Justices Patience Drake Roggensack and Annette Kingsland Ziegler dissent.
2009AP1724-CR State v. Ludwig

2009AP2026 Leonard v. Lynn
2010AP723-CR State v. Will

2009AP626-CR State v. Steed
2009AP1373 Adams Outdoor Ad. v. City of Madison
2009AP2591 State v. Howard
2009AP2871 Medina v. Raemisch
2009AP2876 Barrett v. Brown
2010AP155 State v. Gant
2010AP186-CR State v. Evans
2010AP1646-48 Dane Co. DHS v. Tierra M.
2010AP2829-W Tate v. Cir. Ct. Dane Co.

Fond du Lac
2010AP452-CR State v. Wegener

Green Lake
2009AP3204-CR State v. Stewart

2009AP2724-CR State v. Marinez

2009AP1656 Collins v. City of Kenosha Housing Auth.
2010AP182 Godlewski v. Schultz - Justices N. Patrick Crooks and Patience Drake Roggensack did not participate.

La Crosse
2009AP2949-CR/2010AP323-CR State v. Maxy

2008AP3237-44 State v. Carter

2009AP1388-CR State v. Russell
2009AP1718-CR State v. Gollier
2009AP2456-CR State v. Greer
2009AP2826-CR State v. Alicea
2009AP3178-CRNM  State v. Loutsas
2010AP565-CR State v. Ortiz
2010AP1215/16 State v. Jaquita B.
2010AP1697-W Henkel v. Pugh
2010AP2414-NM State v. Tracy M.

2009AP2552-CR State v. Janiak

2010AP2160-W Walker v. Morgan
2010AP2920-W Walker v. Cir. Ct. Outagamie Co.

2008AP340/2010AP329 State v. Tran
2010AP1919-CRNM  State v. Pollard

2009AP475-CR State v. McNamar - Chief Justice Shirley S. Abrahamson dissents.
2009AP1356-CR State v. Darwin - Chief Justice Shirley S. Abrahamson dissents.
2010AP212-CR State v. Peters
2010AP2768-W Phiffer v. COA

2009AP2189 Ardell v. Clarke
2009AP2727-CR State v. Lopez
2009AP3069-CR State v. Batt

2009AP1733 State v. Gentry

2009AP2377-CR State v. Studenec

2009AP2810 Accola v. Fontana Builders - Justice N. Patrick Crooks did not participate.

2009AP2586 National Graphics v. Goggins

2009AP394 Stokes v. Jenkins

2010AP622-CR State v. Jury

Tom Sheehan
Court Information Officer
(608) 261-6640

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