Wisconsin Supreme Court accepts ten new cases

Madison, Wisconsin - June 28, 2012

The Wisconsin Supreme Court has voted to accept ten 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.

2011AP407-09-CR State v. Novy
This case examines two issues arising from the conviction of Brent T. Novy on two counts of stalking, six counts of bail jumping, and one count of violating a harassment restraining order:

  • Did the trial court err in allowing fingerprint evidence to be admitted in the state's rebuttal when the court had previously ruled the evidence was not admissible because the state violated the discovery statute by not providing it to the defense?
  • Was Novy deprived the right to an impartial jury and fair trial when defense counsel observed a juror sleeping during his closing argument?

Some background: One of the bail jumping counts against Novy arose out of an allegation that, after having previously been charged with felony stalking and having been released from custody, he violated the conditions of his release by telephoning his former fiancée on Nov. 9, 2008, from the pay phone at L&M Meats.

In its opening statement, the prosecutor represented that the jury would hear testimony from a police officer who had obtained Novy's thumb print from the pay phone and that the jury would also hear testimony from the officer who had matched the thumb print found on the pay phone to the defendant.

At the close of opening statements, defense counsel moved to exclude the fingerprint evidence because the state had not provided test results or comparisons of any such evidence, despite a timely discovery demand by Novy. The circuit court excluded the fingerprint evidence based on the state's failure to designate the analyst as an expert prior to trial.

As the state presented its case, the former fiancée testified that on Nov. 9, 2008, she had received a call from the pay phone at L&M Meats. She said she found the phone number from which the call was made was assigned to that pay phone by calling her sister from the pay phone and having the sister write down the number from caller ID.

At the close of the state's case, the defendant moved to dismiss one count (count seven) of the bail jumping charges based on a lack of evidence linking him to the pay phone call from L&M Meats. The state conceded that without the fingerprint evidence there was no evidence linking the defendant to the call. Based on the state's concession, the circuit court dismissed count seven. When the state asked if the fingerprint evidence would be available on rebuttal, the trial court responded that it did not know.

On cross-examination, Novy said he did not call his former fiancée from L&M Meats on Nov. 9, 2008, at approximately 8 p.m. When asked if it anticipated calling rebuttal witnesses, the state said given the defendant's denial of making the L&M Meats phone call, "I think at this time the fingerprint evidence is proper for rebuttal." Defense counsel objected, arguing the fingerprint evidence would not rebut the defendant's testimony. Defense counsel also argued that the use of previously requested and undisclosed physical evidence was not akin to a "rebuttal witness."

The circuit court ruled that the fingerprint evidence was "bona fide rebuttal evidence" and noted a rebuttal witness is permitted to use physical evidence in connection with his testimony. On rebuttal, the state presented evidence from the officer who took the fingerprints from the pay phone and from the officer who verified that the fingerprints belonged to the defendant. Novy testified that he had used the pay phone but said he had called a friend in the Philippines.

The majority of the Court of Appeals concluded that the circuit court's initial exclusion of the fingerprint evidence did not necessarily preclude its later admission as rebuttal evidence. The majority noted the trial court expressly left open the question of whether the fingerprint evidence could be used in rebuttal.

Court of Appeals Judge Paul F. Reilly dissented, saying in part "the evidence of the phone call from Nov. 9, 2008, as received by the trial court, was irrelevant to any of the charges Novy was being tried on."

While the state notes that Reilly's dissent drew the conclusion that there was no criminal charge associated with the defendant's conduct in making a phone call from L&M Meats the state says, "Novy did not raise an "other acts" objection to the admissibility in the circuit court or on appeal."

Novy also contends he was deprived of his right to an impartial jury when the circuit court refused to strike a juror who was sleeping during defense counsel's closing argument. Justice David T. Prosser did not participate. From Kenosha County Circuit Court.

2011AP564 Schinner v. Gundrum
This case examines the meaning of "occurrence" and "accident" under the terms of a homeowners insurance policy and how they apply to the facts presented here. The Supreme Court is asked to review whether a homeowners insurance policy covers the 21-year-old host of a drinking party who provided alcohol to an underage guest who assaulted another guest.

Some background: Marshall Schinner filed a lawsuit alleging that he sustained serious injuries after being assaulted by Matthew Cecil. Cecil was a guest at a party hosted by Michael Gundrum in a shed on Gundrum's parent's business property. The shed was used in part to store personal property, including snowmobiles that were explicitly listed in a West Bend homeowner's policy.

Cecil, who was under the legal drinking age at the time, became belligerent and assaulted Schinner during the party. The parties agree that Cecil's assault on Schinner was intentional and that Schinner's injuries did not result from inadvertent or merely reckless conduct by Cecil. The parties also agree there is no allegation that Gundrum personally participated in or assisted Cecil in the assault.

Schinner sued Gundrum for negligence, alleging that Gundrum's conduct, which included providing alcohol to Cecil, was a cause of the assault and Schinner's resulting injuries. West Bend was added to the suit. West Bend moved for summary judgment, arguing it should be dismissed from the case because there was no "accident," and therefore no "occurrence" under the policy.

The circuit court agreed with West Bend and dismissed it from the case. The circuit court explained, "Based on the undisputed facts in this case, there is simply no ‘occurrence.' ... There is no allegation of any accidental conduct. The acts of Cecil are intentional acts – punching Schinner twice and kicking Schinner in the head. Further, any acts on the part of Michael Gundrum were intentional, namely his providing of alcoholic beverages to underaged persons."

The circuit court also agreed with West Bend's alternate argument that the homeowner's policy was inapplicable because the injury to Schinner did not occur at an insured location. Schinner appealed, and the Court of Appeals reversed and remanded.

The Court of Appeals said the primary issue presented was whether there was an "occurrence" for purposes of coverage. While the West Bend policy does not define the term "accident," the Court of Appeals noted that prior cases have defined the term as an event which takes place without one's foresight or expectation. The Court of Appeals agreed with Schinner that the assault was an "accident" from Gundrum's standpoint as well as from Schinner's standpoint.

West Bend says a decision from this court would resolve an apparent conflict in previous appellate court decisions and provide needed guidance on the proper analysis for Wisconsin courts to employ when determining whether an assault constitutes an "occurrence" under a homeowner's liability insurance policy. From Washington County.

2011AP914 Est. of Hopgood v. Boyd
This case involves a claim against the state of Wisconsin arising from an accident involving a state-owned vehicle that was driven by a state prison inmate when it rolled over on the highway, resulting in the death of one passenger and injuring four others.

The Supreme Court examines what constitutes an oath for purposes of complying with Wis. Stat. § 893.82, which dictates the process and requirements for filing a claim against the state.

Essentially, the issue raised in the petition is whether the plaintiffs properly "swore to" the contents of their notices of claim and thereby strictly complied with § 893.82, Stats., and the requirements of Kellner v. Christian, 197 Wis. 2d 183, 539 N.W.2d 685 (1995).

Some background: On June 17, 2009, Danny Hopgood, Perry Macon, Aaron Stroud, John Odom, Jr., and Michael Sensy were all passengers in a vehicle owned by the state of Wisconsin and being driven by Jimmy D. Boyd, then an inmate in the Wisconsin Prison System. Boyd lost control of the vehicle, which traveled off the roadway and rolled several times. All passengers were seriously injured and Hopgood died as the result of his injuries.

As required by § 893.82, Stats., the plaintiffs filed notices of claim with the State of Wisconsin within 120 days of the accident. All of the notices were notarized and contained an oath, swearing to the truth of the statements in the claims and acknowledging potential penalties for false swearing.

In lieu of filing an answer, Boyd filed a motion to dismiss. The motion argued, among other things, that the plaintiffs failed to strictly comply with § 893.82 because, although the body of the notices of claim contained a statement that an oath had been taken, the fact that the statement was within the body of the notice and not within the notary public's signature block, rendered the notices defective.

In opposing the motion, the plaintiffs argued that in Kellner, this court held that in order for a notice of claim to strictly comply with the statute, the notice must contain a formal oath or affirmation as to the truthfulness of the claim and a statement in the notice that the oath or affirmation occurred. The plaintiffs argued because their notices of claim contained all elements required by Kellner, the motion to dismiss should be denied.

Relying on Kellner and Newkirk v. Dept. of Transp., 228 Wis. 2d 830, 598 N.W.2d 610 (Ct. App. 1999), the circuit court held that in order to strictly comply with the statute, the notary public's signature block must contain an acknowledgment that an oath was taken and having such a statement in the body of the notice was not sufficient.

The plaintiffs filed a motion for reconsideration and clarification, arguing that there was no question but that the plaintiffs swore to the contents of their notices of claim. The circuit court heard oral argument on the motion for reconsideration and denied it. The plaintiffs appealed, and the Court of Appeals summarily affirmed.

The Court of Appeals said it was undisputed that each of the notices of claim contained a statement by the claimant that the notary who signed the notice had given the claimant an oral oath, and it was also undisputed that none of the notices of claim contained a statement by the notary who witnessed it that the notice was sworn to under oath.

The plaintiffs argue that the Court of Appeals' decision in Newkirk impermissibly extended the requirements established by this court in Kellner as to when a claim is properly "sworn to" for purposes of § 893.82(5). From Dane County.

2011AP1044-CR/2011AP1105-CR State v. Neumann
This certification involves consolidated appeals that raise issues related to statutory construction, constitutional rights and appropriate jury instructions for persons charged with reckless homicide based on their choice to rely on prayer rather than medical treatment for an ill child.

Some background: The defendants, Dale and Leilani Neumann, were the parents of 11-year-old Madeline Kara Neumann, who died from uncontrolled diabetes mellitus. Madeline had been showing symptoms of illness for approximately two weeks before her death on March 23, 2008.

The emergency room doctor who examined Madeline said hers was the most advanced case of juvenile diabetic ketoacidosis (DKA) he had ever seen. The doctors who testified at trial agreed that DKA is survivable, and the prognosis for a still breathing DKA patient with a heartbeat is very good. One doctor who testified at trial said he believed Madeline's DKA was treatable and that her chances of survival were high until well into the day of her death.

The Neumanns were both charged with second-degree reckless homicide, contrary to § 940.06(1), which provides: "whoever recklessly causes the death of another human being is guilty of a Class D felony." They claimed a statutory right under § 948.03(6), the child abuse statute, and a constitutional right to substitute prayer for medical treatment.

Two weeks before her death, Madeline began experiencing fatigue, thirst, and frequent urination. Three days before her death, she would have appeared generally healthy to a casual observer. On March 21, 2008, Mrs. Neumann noticed that Madeline was very tired, but no one believed she was suffering from a serious illness. On March 22, Madeline said she was feeling tired. Mrs. Neumann told her to stay home and rest rather than working at the family's coffee shop. When Mrs. Neumann returned from work, she noticed that Madeline's legs were skinny and blue. Mrs. Neumann massaged Madeline's legs, and the Neumanns prayed over her. Mrs. Neumann said she believed Madeline was under spiritual attack and that prayer was the only answer.

The family enlisted help from others to pray for Madeline. Dale Neumann broadcasted an e-mail seeking emergency prayer and assistance from a church elder. Neumann's father suggested using Pedialyte since Madeline seemed dehydrated, but Leilani Neumann said, "That could be taking the glory from God." The family believed Madeline's health had improved later that night because her breathing was easier and more regular and her hands were warmer. On the morning of March 23, Mrs. Neumann described Madeline's condition as comatose and hanging between life and death. As 1:30 p.m., Madeline's parents expressed optimism about her prognosis but an hour later she stopped breathing.

The defendants were convicted, following separate jury trials, of one count of second-degree reckless homicide. They were each sentenced to ten years of probation, with six months in the county jail stayed. In addition, each parent was ordered to serve 30 days in jail during the month of March, every other year, for six years.

Both parents separately appealed, asking for review on several issues, including due process rights, jury instructions, effectiveness of counsel, and whether the statutory exemption for faith healing applies.

The Neumanns argue jury instructions negated the prayer treatment privilege granted by the child abuse statute and that the instructions violated their constitutional right to direct the medical care for their child. The state reiterates that the prayer exception is not applicable to the homicide statute and that the general right of parents to make decisions about their children's care does not prohibit the state from imposing a medical obligation on a parent necessary to preserve a child's life.

In certifying the case, the Court of Appeals asks the Supreme Court, in part, "to determine the scope of the prayer treatment exception and to inform trial courts regarding the appropriate jury instructions when that exception is raised in a reckless homicide case." From Marathon County.

2011AP2067 Marlowe v. IDS Property Cas. Ins. Co.
This case, arising from a dispute over insurance coverage, examines the arbitration process and the authority of arbitrators to determine the necessity and scope of allowable discovery.

Some background: The Marlowes were involved in an auto accident with an insured motorist. They asserted an uninsured motorist claim under their policy with IDS Property Casualty Insurance Co. (IDS). The parties agreed to arbitrate, and a panel of three arbitrators was selected. IDS requested discovery from the Marlowes, including depositions, production of medical records, and an independent medical examination. The Marlowes said they would not comply because, under § 788.07, Stats., discovery in arbitration is limited to taking depositions.

In response, IDS pointed to the portion of the arbitration agreement which said, "Local rules of law as to procedure and evidence will apply." IDS argued that this provision meant that discovery procedures found in Wisconsin statutes govern the scope and method of discovery. The Marlowes disagreed and continued to refuse to comply with the discovery requests.

In October of 2010, the arbitration panel issued a decision and order allowing discovery to the extent permitted by ch. 804, Stats., governing discovery in civil litigation. The panel concluded that since the arbitration agreement said "local rules of procedure and evidence" would apply, the agreement unambiguously allowed for routine discovery according to the civil rules of procedure. The Marlowes sought reconsideration of this decision. The panel issued a supplemental decision and order confirming its earlier ruling.

The Marlowes filed a declaratory judgment action in circuit court, asking the court to declare that IDS was limited to discovery provided by § 788.07. IDS moved to stay the circuit court proceedings and asked the court for an order compelling arbitration. IDS argued that the arbitration panel, not the circuit court, had the authority to determine the scope of discovery allowed by the arbitration agreement.

Following a hearing, the circuit court denied IDS's motion and granted the Marlowes' request for a declaratory judgment. The circuit court found in part that arbiters are empaneled to arbitrate, but the arbiters have no authority to interpret the contract between the parties. They're to arbitrate what the contest is all about.

IDS appealed, and the Court of Appeals reversed. IDS argued that the circuit court lacked authority to grant a declaratory judgment on the discovery issue because an arbitration panel's intermediate rulings are not reviewable by a court until after the panel has rendered its final award. The Court of Appeals noted the Wisconsin Arbitration Act does not specifically allow for or prohibit circuit court review of a panel's intermediate rulings, and it said the question of whether intermediate rulings may be challenged in court before a final award is made appears to be an issue of first impression in Wisconsin.

The Court of Appeals agreed with the reasoning of federal cases that an arbitration panel's intermediate decisions are generally not immediately reviewable since if every individual decision were independently reviewable by a circuit court, the advantages of arbitration would become meaningless, as both litigation costs and delay would increase significantly. Having concluded that a party generally may not seek immediate circuit court review of an arbitration panel's intermediate decision, the Court of Appeals said the circuit court's order must be reversed.

The Marlowes say the Court of Appeals' decision will not apply just to arbitration clauses in uninsured motorist policies but will apply to all arbitration clauses in all contracts, whether commercial purchase contracts, employment contracts, and partnership or shareholder agreements. The Marlowes argue the Court of Appeals' decision will have a chilling effect on all types of arbitration and will likely create a burden on the trial system because parties would not be willing to engage in arbitration if it is going to be as costly and time consuming as litigation. IDS argues that once an arbitration agreement makes some arguable reference to a set of established procedures, the arbitration panel then has the authority to interpret the reference. IDS says it is arguable that the phrase "local rules of law as to procedure and evidence" refers to the Wisconsin procedural statutes which specify allowable discovery procedures.

A decision by the Supreme Court would help to further develop and clarify the holding of Borst v. Allstate Ins. Co., 2006 WI 70, 291 Wis. 2d 361, 717 N.W.2d 42. Borst said that "parties would be well served to either: (1) explicitly address the scope of discovery and the procedures to resolve disputes regarding discovery; or (2) reference a set of established ADR provider rules that specify how discovery should be handled." From Brown County.

2011AP364 Koscielak v. Stockbridge-Munsee Community
This case examines whether tribal sovereign immunity bars a state law tort claim arising from a slip-and-fall incident and the proper legal standard involved in guiding that analysis.

Some background: On Feb. 22, 2008, Robert Koscielak sustained injuries when he slipped and fell on ice in the Pine Hills Golf and Supper Club parking lot in Gresham, Wis. He and his wife, Mary Koscielak, filed suit against the Stockbridge-Munsee Band of Mohicans under the tribe's business name, Pine Hills, on June 1, 2010, alleging a variety of tort claims.

Pine Hills moved to dismiss the lawsuit and its motion was converted to a motion for summary judgment. The Tribe argued that Pine Hills was a subordinate economic entity of the Tribe such that Pine Hills was entitled to the sovereign immunity conferred upon the Tribe by federal law. The circuit court agreed. The court also ruled that because the Koscielaks' claims against the tribe were barred, their claims against the tribe's insurer, First Americans Insurance, were barred, too.

The Koscielaks appealed, arguing, among other things, the circuit court erred in applying the doctrine of tribal immunity under the specific facts presented. The Court of Appeals affirmed.

The Court of Appeals ultimately concluded that Wisconsin law has never before distinguished between tort and contract claims for tribal immunity purposes. The court thus declined to draw such a distinction here, stating that the "matter is best left to the Wisconsin Supreme Court or the federal courts." The Koscielaks do not directly challenge tribal immunity, per se. Rather, they argue that Pine Hills is not entitled to tribal sovereign immunity because its business activities are too attenuated from the Tribe.

More specifically, they state the issues as follows:

  • Does a federally recognized Indian tribe enjoy sovereign immunity from suit on a state law tort claim not arising out of a contract with the tribe, of a Wisconsin citizen who is not a member of any Indian tribe, for personal injuries sustained at an off-reservation tribally owned for profit supper club open to the general public, to extend to a true "arm of the tribe" business?
  • Is the multi-factor "arm of the tribe" analysis set forth in McNally CPA's & Consultants, S.C. v. DJ Hosts, Inc., 2004 WI App 221, ¶8, 277 Wis. 2d 801, 692 N.W.2d 247, which the Court of Appeals discredited and failed to apply to the business at issue, the controlling legal test for Wisconsin courts to apply to determine when any sovereign immunity enjoyed by a tribe may properly extend to a tribally-owned business entity?
  • Based on a de novo review with proper application of that test, or other "arm of the tribe" test that this court may establish, is Pine Hills Golf Course and Supper Club an "arm of the tribe"?
  • Under an "occurrence" type insurance policy, are the Koscielaks entitled to the benefit of mandated non-immune liability insurance coverage based on the tribe's legal position at the time of the "occurrence" in an unrelated federal case that Pine Hills was a gaming entity under its Gaming Compact?

The tribe and First American frame the issues as follows:

  • Does this court have any reason or authority to create an exception to the established rule of tribal sovereign immunity?
  • Do the facts of this case, which involve a unit of the tribe itself, present any occasion for clarifying or modifying factors developed by other courts for determining whether a tribe's immunity extends to a separately-incorporated organization?
  • May an ordinary commercial general liability carrier be held directly liable to an injured party if its insured is immune?

From Shawano County.

2010AP3034-CR State v. Sobczak
This case involves charges of possession of child pornography and examines whether a temporary houseguest may consent to a police search of a host's home and a computer located inside.

Some background: Kenneth M. Sobczak, an adult, lived with his parents. While his parents were away on vacation, Sobczak invited a girlfriend to stay with him at his house for the weekend. She arrived on Friday evening and spent the night. Late in the afternoon on Saturday, Sobczak left to go to work and she stayed at the house. Before Sobczak left, the girlfriend asked him if she could use his laptop computer, as she had no transportation to leave the residence and nothing to do while he was gone. Sobczak agreed that she could use it during his absence.

After Sobczak left, the girlfriend began using the computer. She said an error message appeared on the screen, and she opened a file that contained a video showing two naked females, who appeared younger than 18 years of age, engaged in sexual activity.

The girlfriend walked to a nearby gas station and called her grandmother, who called the police. She then returned to the front porch of Sobczak's home, where she explained the situation to a police officer. The officer told the girlfriend they either needed to go inside to view the video or she needed to bring the laptop to him, whichever was more comfortable for her. The girlfriend responded that they could go inside and that the laptop was on a couch that was 20-30 feet inside the front door. The girlfriend then led the officer into the residence and to the couch, where she showed the video to the officer.

The officer seized the computer and took it with him to the police department. Later that same evening, the police obtained and executed a search warrant for the rest of the Sobczak residence.

The state charged Sobczak with possession of child pornography. Sobczak filed a motion to suppress, claiming that his girlfriend had neither actual nor apparent authority to give consent to a search of the Sobczak home.

The circuit court concluded that as a guest of the Sobczak house, the girlfriend had actual authority to allow the police to enter the home and to search Sobczak's computer. After the circuit court denied the suppression motion, Sobczak entered a no contest plea.

The Court of Appeals affirmed. Although it acknowledged that a "mere guest in a home may not ordinarily consent to a search of the premises," the Court of Appeals stated that when "the guest is more than a casual visitor" and has "the run of the house," the guest may consent to a search of the residence. The Court of Appeals concluded that the girlfriend here had sufficient authority to consent to the police entry into the Sobczak home. Further, the Court of Appeals concluded that because Sobczak had given her express permission to use his laptop, the girlfriend also had authority to consent to the officer's search and seizure of that particular item.

Sobczak contends the Court of Appeals' decision runs counter to the generally accepted rule that a temporary guest may not consent to a search of the host's home and to the Wisconsin Supreme Court's determination in State v. McGovern, 77 Wis. 2d 203, 252 N.W.2d 365 (1977) that there is no distinction between an entry into a home and a search of the home by the police. Justice David T. Prosser did not participate. From Washington County.

2012AP544-W State Public Def. v. COA, Dist. IV
In this case, the Supreme Court will hear arguments on whether post-conviction/appellate defense counsel must obtain permission from a circuit court to access, cite to, or discuss the contents of a pre-sentence investigation report (PSI) in a post-conviction or appellate brief or hearing.

The State Public Defender (SPD) has asked the Supreme Court to issue a supervisory writ, ordering the Court of Appeals to allow counsel for a criminal defendant to access, cite to, and discuss the PSI in appellate briefs without first obtaining permission from the circuit court. A decision by the Supreme Court is expected to clarify the law and help judges and lawyers handling future criminal cases.

Some background: The SPD's writ petition was filed in response to District IV Court of Appeals' order denying the SPD's and the state's motions for authorization from the Court of Appeals to cite and discuss Michael Buchanan's PSI in his criminal appeal.

Buchanan had pled no contest to one count of first-degree sexual assault of a child and one count of child enticement, both with a dangerous weapon modifier. Prior to sentencing Buchanan filed a motion to strike certain parts of the PSI. The circuit court granted the motion in part and denied it in part. The court then imposed consecutive sentences of 25 years and 15 years.

Assistant State Public Defender Steven Grunder was appointed to represent Buchanan on appeal. The SPD's writ petition states that Grunder filed a motion with the Court of Appeals asking for authorization to cite parts of the PSI, although the SPD asserts that such a motion was unnecessary. The motion asserted that Buchanan would need to include excerpts of the PSI in his appellate brief in order to present his claims on appeal. The motion further stated that the excerpted portions would contain no confidential information about the victim or the victim's family and that Buchanan's brief would refer to sources of information in the PSI only by their initials.

On Nov. 30, 2011, the Court of Appeals granted the motion filed by Grunder. Grunder then filed Buchanan's brief consistent with the scope of reference to the PSI requested in the motion.

The state then filed its own motion in the Court of Appeals, noting that the state's practice since State v. Parent, 2006 WI 132, 298 Wis. 2d 63, 725 N.W.2d 915, has been to seek permission from the circuit court when it wants to cite a PSI in its appellate briefs. It further stated that the Court of Appeals' order granting Buchanan's motion gave the impression that permission from the circuit court was not necessary. It then requested that it be allowed to examine and quote the PSI in the same manner as had been granted to Grunder.

In light of the state's motion, the Court of Appeals vacated its Nov. 30, 2011 order and now ordered Buchanan's counsel (SPD) and the state to file motions seeking permission from the circuit court.

The Court of Appeals asserts, in part, that the law is clear that such permission must be sought from the circuit court. It contends that the statement in Wis. Stat. § 972.15(2) that the circuit judge "shall disclose the contents of the report to the defendant's attorney and the district attorney prior to sentencing" means that the circuit court is the master of the PSI and that the parties are not automatically entitled to it.

The SPD's petition lists the following single issue:

Is postconviction counsel required to first seek circuit court permission to "access, cite to, and quote from a PSI report" before litigating a PSI-related sentencing issue where: (1) by statute postconviction counsel have a right to have and keep a copy of a PSI report; (2) due process requires that a defendant be permitted to challenge, deny or explain information in a PSI report; and (3) counsel must by operation of law and not circuit court permission or discretion keep the PSI report "confidential" as defined in Wis. Stat. § 809.81(8)? From Wood County.

2010AP3153 Bethke v. Auto-Owners Ins. Co.
This case, arising from a fatal car accident, examines two issues related to underinsured motorist (UIM) coverage: whether an insurance policy that excludes self-insured vehicles from UIM coverage contains an impermissible reducing clause; and whether refusal to pay proceeds based on the definition of underinsured motor vehicle under the facts presented in this situation is contrary to public policy.

Some background: On July 19, 2007, Kathryn Bethke and Andrew Bethke were involved in a traffic accident with Frederick Goddard in Sheboygan Falls, Wisconsin. Both Kathryn and Goddard died as a result of their injuries. Andrew, a passenger in Kathryn's car, was injured in the collision. Goddard was driving a car rented from AVIS Rent-A-Car.

The Bethkes allege that Goddard, who did not have his own car insurance, was driving negligently. AVIS had obtained a Wisconsin safety responsibility self-insurance certificate as permitted by Wis. Stat. § 344.16. Under its self-insurance certificate, AVIS is liable for damages in the amount of $25,000 per claim and $50,000 per accident – the minimum statutorily allowable amount. AVIS tendered $25,000 each to Andrew and to Kathryn's estate.

At the time of the accident, Kathryn had a car insurance policy through Auto-Owners Insurance Co. (Owners). The policy included underinsured motorist (UIM) coverage in the amount of $500,000 per occurrence. After receiving the statutory minimum $50,000 from AVIS, the Bethkes made a $450,000 demand under the UIM provisions of Kathryn's policy with Owners.

Owners denied the claim, contending that AVIS' automobile was a self-insured automobile excluded from coverage under its UIM policy provisions.

The Bethkes sued Owners for a survivor's action, wrongful death, bad faith, and personal injuries to Andrew. The trial court granted declaratory relief to Owners, holding that the UIM policy provisions permissibly and unambiguously excluded the self-insured vehicles owned by AVIS. The Court of Appeals affirmed.

The Court of Appeals concluded that Owners' exclusion of self-insured vehicles from its policy definition of "underinsured automobiles" is permitted under Wis. Stat. § 632.32(6), does not function as an impermissible reducing clause, and cannot be deemed contrary to public policy.    The Bethkes challenge these conclusions in their arguments to the Supreme Court.  From Sheboygan County.

2011AP593 Jamerson v. Dept. of Children & Families
This case examines Wisconsin's new caregiver law, specifically, Wis. Stat. § 48.685(5)(br)5., which mandates that a childcare provider's certification must be revoked if the provider has been convicted of the enumerated public assistance offenses.

A decision by the Supreme Court could help determine the proper standard of review to apply to state Department of Children and Family (the department) decisions involving Wis. Stat. § 48.685(5)(br)5., and clarify whether a previous conviction under § 49.12(1) & (6) (1989-90), now renumbered as § 49.95, constitutes a barring conviction for purposes of § 48.685(5)(br)5.

Some background: At issue in this case is the department's determination that Angelina Jamerson was permanently prohibited from obtaining a group childcare license under Wisconsin's new caregiver law.

Jamerson was the owner of Children's Fantasy Child Care & Preschool. On Dec. 11, 2009, the department notified Jamerson that her group childcare license would be summarily suspended as of 12 a.m. the next day. The Department summarily suspended her license because four months earlier, a Children's Fantasy employee, Brenda Ashford, allegedly had sold marijuana to an undercover police officer as part of a controlled buy; the buy had taken place during business hours and on a corner just west of Children's Fantasy.

Shortly after receiving the summary suspension notice, Jamerson faxed a letter to the Department stating that she had terminated Ashford and that Ashford would remain terminated regardless of the results of the pending charges. Three days later, on Dec. 14, 2009, Jamerson submitted an affidavit explaining that: (1) she had no knowledge of the charges against Ashford until the Department had contacted her about them; (2) she had fired Ashford and prohibited her from coming near the vicinity of Children's Fantasy; and (3) she had met with her staff regarding the incident.

Despite Jamerson's submissions, the Department revoked Jamerson's childcare license on Jan. 20, 2010. The notice of revocation cited two grounds for the revocation:  (1) Ashford's marijuana charges, to which Ashford had by this point pled guilty; and (2) the Department's interpretation of the new child caregiver law, which would become effective Feb. 1, 2010.

Jamerson was convicted in 1991 of offenses relating to food stamps and public assistance, The Department alleged that Jamerson's 1991 convictions of offenses relating to food stamps and public assistance (1989-90), contrary to Wis. Stat. §§ 49.127(2m) and 49.12(1) & (6) (1989-90), permanently prohibited her from holding a license under § 48.685(5)(br)5.

Jamerson appealed the Department's revocation, and the case was assigned to an administrative law judge ("ALJ") at the Division of Hearings and Appeals. A few weeks before a scheduled hearing on the matter, the Department filed a motion to dismiss Jamerson's appeal. The Department argued that under the new caregiver law, Jamerson's prior food stamp offense amounted to an "automatic bar" preventing her from ever obtaining or holding a group childcare license. The ALJ agreed, and the Department adopted the ALJ's decision as its final order on the matter.   Jamerson appealed the Department's final order to the trial court. The trial court affirmed. Jamerson appealed. The Court of Appeals reversed the Department's final decision and the trial court's order.

The Department asks the Supreme Court to review whether Jamerson's 1991 conviction under Wis. Stat. § 49.12(1) and (6) bars Jamerson from licensure under Wis. Stat. § 48.685(5)(br)5.  The Department additionally asks the Supreme Court to determine the appropriate level of deference to afford the department's decision on this point, and to decide whether the ALJ properly upheld the revocation without first conducting a contested case hearing. 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:

2011AP294 State v. Fankhauser

2011AP1753-55-W Gordon v. Haines

2010AP377 State v. Moore - Justice N. Patrick Crooks did not participate.
2010AP2081 DeBauche v. DeBauche
2010AP3123 Truck Equipment v. Stoughton Trailers
2011AP844-CR State v. Nash
2011AP996-CR State v. Vasquez-Ramos
2011AP1333-CR State v. Hammersley

2011AP2613 Chippewa Co. DHS v. James A.

2010AP2339-CRNM State v. Cowins
2011AP1214-CR State v. Emmenegger
2011AP1455-W Howard v. Cir. Ct. Dane Co.
2011AP1958 Griswold v. Wierzbicki
2011AP2737 Gray v. Stutleen

2011AP19 Hamann v. Progressive Ins. Co.

2010AP1716 Olson v. Phys. Ins.
2011AP1988-W Thomas v. Juneau County

2010AP2578-CR State v Fargo
2011AP82-CR State v. Wilfert
2011AP573 State v. Land - Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley dissent.
2011AP1056-CR State v. Boyd

2011AP2499-FT Manitowoc Co. v. Harland H. - Justice David T. Prosser, Jr. did not participate.

2011AP800-CR State v. Millerleile - Chief Justice Shirley S. Abrahamson dissents.

2010AP1228-CR State v. Lathan
2010AP2500 Burns v. Silverman
2010AP2614 Singer v. Pneumo Abex - Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley dissent.
2010AP2814-CR State v. Crawford
2010AP3020 Kramschuster v Schwefel
2010AP3033 Systems Eng. v. Est. of Wittbrot
2011AP348-CR State v. Johnson
2011AP547 Harris v. Milw. City Fire & Police - Chief Justice Shirley S. Abrahamson dissents.
2011AP566 State v. Amonoo
2011AP774-CR State v. Brewer
2011AP820/21 State v. Conley
2011AP1017-CR State v. Prince
2011AP1433-W Thomas v. Pollard
2011AP2825-28 State v. Laura M. - Chief Justice Shirley S. Abrahamson dissents.
2012AP173-W Davis v. Bartow
2012AP549-W Thomas v. Cir. Ct. for Milw. Co.
2012AP784-OA Smith v. Paquin

2011AP106-CR State v. Marshall
2011AP1006-CR State v. Spoerl
2011AP1717-CR State v. Holan

2011AP125-CR State v. Helson - Justice David T. Prosser, Jr. did not participate.

2010AP3080-CR State v. Robinson - Justice David T. Prosser, Jr. did not participate.
2011AP1263-CR State v. Powell
2012AP493-W Washington v. Schmaling

2011AP1740-CR State v. Little

2012AP84-W Kupaza v. Baenen - Justice Patience Drake Roggensack did not participate.

2011AP1204 Butzen v. City of Sheboygan Falls
2011AP1290-CR State v. Moffett

St. Croix
2011AP172-CR State v. Poznikowich
2011AP939-CR State v. Wiegand

2010AP2307-CR State v. Laudie

2008AP2897 Link Snacks v. Link - Justice David T. Prosser, Jr. did not participate. Justice Patience Drake Roggensack dissents.

2011AP2 Artisan & Truckers Cas. v. Thorson - Justice David T. Prosser, Jr. did not participate.

2011AP1225-CRNM State v. Boyd
2012AP692-94-W Rieckhoff v. Cir. Ct. Waushara Co.

2011AP225-CR State v. Wallace - Chief Justice Shirley S. Abrahamson dissents.

Tom Sheehan
Court Information Officer
(608) 261-6640

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