Wisconsin Supreme Court accepts 13 new cases

Madison, Wisconsin - December 17, 2013

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 county of origin are listed below. The Court of Appeals' opinion for the newly accepted case is hyperlinked where available.

2012AP1047 Masri v. LIRC and Medical College of Wisconsin
This case examines whether an unpaid health-care intern is considered an employee protected by Wisconsin's health care worker protection statute, Wis. Stat. § 147.997.

Some background: Asma Masri, who was an intern at the Medical College of Wisconsin, seeks review of a Court of Appeals' decision affirming a circuit court order which, in turn, affirmed a Labor and Industry Review Commission (LIRC) determination that she was not an employee protected by the statute.

In August of 2008, Masri was a doctoral candidate at the UW-Milwaukee. She began an unpaid internship with the Medical College of Wisconsin and was assigned to the transplant surgery unit at Froedtert Hospital. She worked 40 hours a week and was provided with office space, support staff, free parking, full access to facilities and patient records, and professional networking opportunities. Although her supervisor promised to provide her with health insurance and the ability to pursue grants, she did not receive either before she was terminated.

In November of 2008, Masri met with a Medical College of Wisconsin official to report alleged medical ethics violations that she said she had observed during her internship. Her internship was terminated soon thereafter. Masri filed a retaliation complaint with the Equal Rights Division (ERD) of the Wisconsin Department of Workforce Development. An ERD officer issued a preliminary determination and order dismissing Masri's complaint on the grounds that the ERD lacked jurisdiction because Masri was not an employee protected by § 146.997. An administrative law judge (ALJ) affirmed in January 2010. LIRC affirmed in August 2011. The circuit court affirmed LIRC's decision in April 2012.

Masri appealed, and a divided Court of Appeals affirmed. Masri argued that because the statute uses the word "person," this means the legislature intended the statute to protect both employees and non-employees from retaliation. In the alternative, she argued that if the statute only covers employees, she was in fact an employee of the time she reported her ethical concerns. The Court of Appeals disagreed with both propositions.

The Court of Appeals pointed out that under the due weight deference standard applied, it must uphold LIRC's decision unless that decision is contrary to the clear meaning of the statute and no more reasonable interpretation exists. See Milwaukee Symphony Orchestra, Inc. v. Wisconsin DOR, 2010 WI 33, ¶36, 324 Wis. 2d 68, 781 N.W.2d 674.

The Court of Appeals went on to conclude that LIRC's decision that § 146.997 applies only to employees was consistent with the statute's clear language and was reasonable.

The Court of Appeals said Masri correctly pointed out that the legislature did use the word "person" several times in § 146.997(3), which restricts disciplinary action against a person who reports possible violations in good faith.

However, the court said Masri ignored the fact that the other subsections of the statute, which are interrelated with sub. (3) are specifically limited to employees. The Court of Appeals went on to note that § 146.997(1)(b) defines the disciplinary action prohibited by § 146.997(3) as limited to "action taken with respect to an employee."

Court of Appeals Judge Ralph Adam Fine wrote a strong dissent, saying the case affected an important policy: the suppression of information embarrassing to health care facilities and providers. He said the predominant purpose of § 146.997 is not to advance the personal interests of healthcare whistleblowers but to protect the people of Wisconsin. Fine argued that Masri did receive significant intangible benefits as a result of her work for the Medical College. From Milwaukee County.

2012AP2402 Force v. American Family
In this certification, the Court of Appeals asks the Supreme Court to resolve several questions arising from a lawsuit over a fatal car accident. · Can the minor children of a man killed in a car accident recover for wrongful death under Wis. Stat. § 895.04 when there is a surviving spouse, but that surviving spouse has been estranged from the decedent for over 10 years, thus precluding any recovery by the spouse from which to set aside the children's share? · If the statute does not allow the children to recover absent a recovery by the surviving spouse, does the statute violate the Equal Protection Clause of the U.S. Constitution by impermissibly differentiating between minor dependent children by conditioning their recovery on the viability of the surviving spouse's claim? · Is there a rational basis for providing recovery to minor children whose deceased parent's surviving spouse has a viable claim and denying recovery to those whose deceased parent's surviving spouse does not?

Some background: Billy Joe Force died on Dec. 12, 2008 following a car accident. He was married but had long been estranged from his wife Linda. Billy and Linda separated in 1996, after six months of marriage. The couple had no children with each other, but Billy had three minor daughters from other non-marital relationships.

Billy provided Linda no pecuniary support from 1997 to his death and had no contact at all with Linda in the five years preceding his death. Linda, however, as the surviving spouse, is the special administrator of Billy's estate.

Linda, the estate, and Hailey Marie-Joe Force (Billy's adjudicated daughter born Dec. 3, 2008) sought wrongful death damages. Hailey claimed "an independent, cognizable claim for relief of her own" but also claimed, alternatively, that "the court has a duty and obligation to determine an amount that should be set aside for [her] protection."

In a separate case, Mehgan and Lauren Force, Billy's daughters born February 22, 2002, and September 24, 2000, sought damages for wrongful death, claiming that they were entitled to Billy's "aid, society and companionship." The two cases were consolidated in the circuit court.

The plaintiffs in both cases sued Jeffrey Brown, the driver of the other vehicle in the fatal accident, his insurer, American Family Mutual Insurance Company, and Regent Insurance Company, the insurer of Billy's employer, for whom he was driving at the time of the accident.

Regent, American Family, and Brown (collectively, Regent) moved for summary judgment. The circuit court granted the motion, ruling: (1) that the children did not have an independent cause of action under Wis. Stat. § 895.04; (2) that Linda had no compensable damages; (3) that because Linda could not recover, there was no offset for Hailey (the other girls did not claim an offset in their complaint); and (4) dismissing Linda and all three children's claims.

As the Court of Appeals' certification memo explains, it appears that under controlling law, see Wis. Stat. § 895.04 and Cogger v. Trudell, 35 Wis. 2d 350, 353, 151 N.W.2d 146 (1967), the children do not have an independent cause of action because their share, by the terms of the statute, is "set aside" from the spouse's award. Id. at 358. This decision, however, did not contemplate a non-recovery situation where there is no negligence on the part of the surviving spouse and the children are not dependents of the surviving spouse. The court notes that despite a number of amendments to the statute, the legislature has not changed Cogger's reading of the statute, which carves out the minor children's recovery only if the surviving spouse recovers.

The court explains that although "[a]t first blush, Cogger and its progeny seem to unquestionably preclude the children's recovery in this case" public policy and possibly the statute itself arguably supports a ruling that gives minor children the ability to recover even when the spouse cannot. The Court of Appeals expresses concern that the rule precluding recovery for the children potentially raises an equal protection issue by treating marital and non-marital children differently. The court states that "there are real public policy and equal protection questions posed by this case, and, because answering them in a fair manner would require us to overrule Cogger, they are questions for the supreme court, not the Court of Appeals." From Waukesha County.

2012AP2085 Brandenburg v. Luethi
In this case, the Supreme Court examines what constitutes "inherently dangerous" work for purposes of the exception to the general rule that a principal is not liable for an independent contractor's torts.

Some background: Robert Luethi and his insurer, McMillan-Warner Mutual Insurance Company, seek review of the Court of Appeals' authored, unpublished decision reversing a judgment that dismissed claims against them brought by Kelli and Bruce Brandenburg.

The Brandenburgs' complaint alleged that Luethi hired Briarwood Forestry Services, LLC, to apply herbicides to Luethi's property, and that Briarwood's negligent application of the herbicides damaged trees and plants on the Brandenburgs' land.

The central issue is whether Briarwood's application of the herbicides was an "inherently dangerous" activity, such that Luethi could be held liable for injuries to the Brandenburgs even though Briarwood was an independent contractor.

The trial court concluded Luethi could not be held liable for Briarwood's alleged negligence because the application of the herbicides was not an inherently dangerous activity. The Court of Appeals reversed, holding that Briarwood's application of the herbicides was an inherently dangerous activity.

Citing Wagner v. Continental Casualty Co., 143 Wis. 2d 379, 421 N.W.2d 835 (1988) and Wis JI—Civil 1022.6, the Court of Appeals held that two elements are necessary for an activity to be considered inherently dangerous: the activity must pose a naturally expected risk of harm; and it must be possible to reduce the risk to a reasonable level by taking precautions.

Luethi argues that a federal district court in Kansas correctly described the meaning of "inherently dangerous" in Desaire v. Solomon Valley Co-Op, 1995 U.S. Dist. LEXIS 14523 (D. Kan. Sept. 14, 1995), a case with a similar fact pattern involving herbicide damage to a neighboring property. Luethi further argues that if "inherently dangerous" work means merely that "special" safety precautions are required to render the work safe, then it amounts to an almost boundless exception to independent contractor liability.

The Brandenburgs dispute these assertions. They claim that the definition of "inherently dangerous" work in Wagner, 143 Wis. 2d at 392 is sufficient: "A person engaged in an activity . . .  that is inherently dangerous without special precautions, can take steps to minimize the risk of injury. Examples include general construction, demolition, and excavation."

That the federal district court in Kansas used a multi-factor test to define "inherently dangerous" work in a drifting herbicide case is, the Brandenburgs say, totally irrelevant. And, the Brandenburgs say, herbicides are inherently dangerous products, and there are known safety precautions that should be taken to reduce the risks inherently present in spraying herbicides. Thus, the Brandenburgs contend that the work at issue here was inherently dangerous, and Luethi should be on the hook for liability. From Trempealeau County.

2012AP584-AC League of Women Voters v. Scott Walker and 2012AP1652 Milwaukee Branch of the NAACP v. Scott Walker
These cases, arising from two Dane County Circuit Court decisions, deal with two closely related aspects of a single, overriding issue: the validity of 2011 Act 23's photo identification requirements under the suffrage provisions in Wis. Const. Art. III.

Wis. Const. Art. III, § 1 provides: "Every United States citizen age 18 or older who is a resident of an election district in this state is a qualified elector of that district." Wis. Const. Art. III, § 2 provides that laws may be enacted: (1) Defining residency. (2) Providing for registration of electors. (3) Providing for absentee voting. (4) Excluding from the right of suffrage persons: (a) Convicted of a felony, unless restored to civil rights. (b) Adjudged by a court to be incompetent or partially incompetent, unless the judgment specifies that the person is capable of understanding the objective of the elective process or the judgment is set aside. Subject to ratification by the people at a general election, extending the right of suffrage to additional classes.

Some procedural background: This is the fourth time that voter ID issues have been before this court, but the first time the Court has voted to review the underlying issues.

In March 2012 the Court of Appeals certified 2012AP584-AC, League of Women Voters of Wisconsin Education Network, Inc. v. Scott Walker (LWV). The Supreme Court denied certification on April 16, 2012. On Aug. 21, 2012, the state filed a petition to bypass in LWV and in Milwaukee Branch of the NAACP v. Scott Walker (NAACP). The bypass petition was denied on Sept. 27, 2012. On Nov. 7, 2012, the state filed a petition to bypass in NAACP and also moved this court to take jurisdiction of and consolidate NAACP with LWV. The Supreme Court denied the petition to bypass and consolidation motion on Jan. 14, 2013.

On Nov. 20, 2013, the Supreme Court issued an order granting the petition for review in LWV, and took jurisdiction of NAACP, which was fully briefed and awaiting oral argument in the Court of Appeals. The Supreme Court also ordered that the cases be heard at oral argument on the same day, scheduled for Feb. 25, 2014.

Some general background: Gov. Scott Walker signed Wis. 2011 Act 23 into law on June 6, 2011. Prior to Act 23, an eligible Wisconsin elector voting in person or by absentee ballot was not required to present an identification document, other than proof of residence in some circumstances. Act 23 requires, with certain exceptions, that an elector must present an acceptable form of photo identification to an election official, who must verify that the name on the identification conforms to the name on the poll list and that any photograph on the identification reasonably resembles the elector. Section 6.79(2)(a), Stats. An elector must present proof of identification to vote either in person or by absentee ballot. There are various forms of acceptable photo identification, including a Wisconsin driver's license or state identification card issued by the Wisconsin Department of Transportation.

The LWV case focuses on whether Act 23's photo identification requirements established a new qualification for voters that, under Wis. Const. Art. III, §§ 1 and 2 can only be created by a constitutional amendment, rather than by ordinary legislation, and NAACP focuses on whether the photo identification requirements impose an unconstitutional burden on voting rights under Wis. Const. Art. III, § 1.

In LWV, the circuit court declared the photo ID requirements of Act 23 "unconstitutional to the extent they serve as a condition for voting at the polls." The circuit court ruled that the photo identification requirement provisions of Act 23 were facially invalid under Art. III.

The Court of Appeals' reversed, providing analysis of three cited cases and concluding that the League of Women Voters failed to meet its burden of proving beyond a reasonable doubt that the voter ID is unconstitutional under Art. III, § 2.

The League of Women Voters says in so holding, the Court of Appeals gave short shrift to its analysis of the scope and meaning of Art. III, § 2. The League of Women Voters raises the following issues for Supreme Court review:

  • Do the portions of 2011 Wisconsin Act 23 that require constitutionally qualified and registered voters to display a specified form of government-issued photo identification at the polling place as a prerequisite to voting constitute an impermissible additional qualification to vote in violation of Wis. Const. Art. III, § 1?
  • Do the portions of 2011 Wisconsin Act 23 that require constitutionally qualified and registered voters to display a specified form of government-issued photo identification at the polling place as a prerequisite to voting exceed legislative authority under Wis. Const. Art. III, § 2?
  • Did the League and its president, Melanie G. Ramey, have standing to bring this action challenging the facial constitutionality of the Voter ID provisions?

The NAACP case commenced on Dec. 16, 2011, when the plaintiffs filed a complaint seeking a declaratory judgment and injunctive relief. On July 17, 2012, the Dane County circuit court issued an order for judgment and judgment granting declaratory and injunctive relief. Among its 10 conclusions of law, the circuit court found the photo ID requirement creates a substantial burden for potential voters who do not already have photo IDs and impairs the constitutional right to vote.

The permanent injunction issued by the circuit court in NAACP is broader and declared that "the defendants shall cease immediately and permanently all and any effort to enforce or implement the photo identification requirements of 2011 Wisconsin Act 23."

In NAACP, the state argues in briefs filed on behalf of Walker that the circuit court's decision in this case is incorrect for six reasons.

  • The court erred as a matter of law by holding that the voter identification requirements are subject to strict scrutiny.
  • The court erred by holding that the right to vote should be treated differently under the Wisconsin Constitution than it is treated under the federal constitution.
  • The court erred by facially invalidating the voter identification requirements as to all voters in spite of the undisputed evidence that those requirements do not burden the vast majority of voters.
  • The Court erred both in accepting the statistical conclusions of Plaintiffs' expert witness and in finding those statistics sufficient to establish a severe burden on the right to vote.
  • Fifth, the court erred in finding the anecdotal testimony of the individual fact witnesses sufficient to establish a severe burden on the right to vote.
  • The court erroneously failed to recognize that the voter identification requirements are reasonably calculated to advance the state's compelling interests in preventing electoral fraud and promoting voter confidence in the integrity of elections. From Dane County.

2012AP1307-CR State v. Purtell
The underlying issue in this child pornography case is whether the search of the contents of the defendant's computers was supported by reasonable grounds to believe the computers contained contraband.

The Supreme Court examines whether the Court of Appeals went beyond the boundaries of an appellate court when it reversed the trial court's decision based on a sua sponte argument – and subsequent appellate factual determinations – that was never presented to the trial court.

The defendant, Jeremiah Purtell, was convicted of two counts of cruelty to animals, one resulting in the death of the animal. He was placed on probation. A condition of probation was that the defendant not own or possess a computer and that he could only use a computer at his place of business or school. The conditions of probation did not actually impose a limitation on the types of images or written materials the defendant could possess.

At a meeting with the probation agent, the defendant complained about the no computer condition. He told the agent he had a working laptop and a desktop computer that did not work at his residence. He also told the agent he had a Myspace account, and he gave the agent the Myspace password. The probation agent subsequently went to the defendant's residence and removed the laptop and desktop computers. The seizure of the computers themselves is not challenged. The agent looked at the contents of one of the computers at her office. She clicked on files and saw the titles of the files did not always match the images in the files. She found files showing females engaged in sexual acts with animals. She said there was concern that some of the females depicted were underage.

Based on information the probation agent gained from looking at the contents of the computers, law enforcement obtained a warrant to search the computers. The resulting search revealed a large volume of still images and videos depicting young children engaged in sex acts.

Purtell was charged with eight counts of possession of child pornography. He moved to suppress the evidence resulting from the search of the computers, arguing that the probation agent performed an illegal warrantless search. At a hearing on the suppression motion, the probation agent testified that before searching the contents of one of the computers, she looked at the defendant's Myspace account and saw pictures of "animals that were partially human," such as a "woman that was half-woman and half-a-cow." The agent testified that, based on what she had seen on the Myspace account, she thought the defendant's computers might have "files regarding cruelty to animals or death and mutilation of animals." She said she was also concerned about the defendant's mental health issues.

The circuit court denied the suppression motion, finding that the agent had legitimate reasons of probation supervision to view the contents of the computers. The circuit court said images the agent saw on the Myspace account gave her reason to believe there was contraband on the computers.

A jury found the defendant guilty of four of the eight counts of possession of child pornography. Purtell appealed, and the Court of Appeals reversed and remanded.

The Court of Appeals said even if it were to be persuaded that there were reasonable grounds to believe the computers contained images depicting cruelty to animals or the mutilation of animals, the state failed to demonstrate such images were in fact contraband. It also said the state failed to point to reasonable grounds supporting the probation agent's belief that the computers contained something that was otherwise illegal to possess.

The state, which asked the Supreme Court to accept the case, says the Court of Appeals exceeded its authority when it engaged in appellate fact finding and decided the case on an argument never presented to the trial court – ineffective assistance of counsel for failing to argue that there was no prohibition on the defendant's possession of images depicting cruelty to animals.

Purtell says the probation agent lacked reasonable grounds to believe the computers contained contraband, noting that the circuit court did not specifically define the nature of the contraband. He says the application of the legal term "contraband" to the historical facts of this case is a legal question that was appropriately reviewed by the Court of Appeals. From Washington County.

2012AP1582-CR State v. Matasek
This case examines whether a circuit court has the discretion under Wis. Stat. § 973.0315 to withhold its judgment on expungement until after a defendant successfully completes probation. Some background: Andrew J. Matasek, pled no contest to one count of manufacture or delivery of THC, as a party to a crime. At the sentencing hearing, defense counsel asked the court to consider allowing Matasek to come back to court to ask for his record to be expunged if "he does everything that is required of him…"

The circuit court denied the request to hold the issue of expunction open until a later date. The court acknowledged that, as a matter of public policy, it might be appropriate for someone to be able to come back into court later to show that his or her subsequent good behavior justified expunction. However, based on the court's reading of the plain language of the expunction statute, the court concluded a decision about expunction must be made at the time of sentencing.

Defense counsel indicated, and the circuit court acknowledged the possibility, that some circuit courts do interpret the statute to allow that, but the court said, "Until someone tells me I can do it differently I have to interpret the statute by what it says."

Matasek argued that the key portion of the statute was the phrase, "the court may order at the time of sentencing that the record be expunged." He appealed, and the Court of Appeals affirmed.

The Court of Appeals held that the statute plainly and unambiguously directs circuit courts to exercise their discretion in ordering expunction "at the time of sentencing." It said if the legislature had intended the interpretation advanced by the defendant, it could have written it to provide that a court may order expunction "at the time of sentencing or after successful completion of the defendant's sentence."

Because the legislature did not include such language, the Court of Appeals said accepting the defendant's interpretation would require adding words to the statutory text. It noted it may not read language into the text of an unambiguous statute. The Court of Appeals went on to say the text of § 973.015(2) also supported its conclusion that § 973.015(1)(a) requires a court to make its decision on expunction at the time of sentencing.

§ 973.015(1)(a) provides that: when a person is under the age of 25 at the time of the commission of an offense for which the person has been found guilty in a court for violation of a law for which the maximum period of imprisonment is six years or less, the court may order at the time of sentencing that the record be expunged upon successful completion of the sentence if the court determines the person will benefit and society will not be harmed by this disposition.

The defendant says under the Court of Appeals' decision, those criminal defendants would apparently not be able to take advantage of the expunction statute. He says the Court of Appeals' decision will severely limit the ability of circuit court judges to decide who is worthy of expunction since they will not be able to watch how a defendant performs on probation before deciding whether to order expunction. He argues that giving circuit courts the discretion to wait until the end of the probationary period before making an expunction decision will enhance the legislative purpose of the statute since a court will be in a much better position to determine if a defendant will benefit from expunction and if society will not be harmed after the defendant has already successfully completed probation. From Ozaukee County.

2011AP2548-CR State v. Rocha-Mayo
This fatal OWI case arises from an accident involving a car and two motorcycles. The Supreme Court examines several issues relating to the introduction into evidence of a preliminary breath test (PBT) for alcohol that is not approved for evidential use in Wisconsin and that was not administered by a law enforcement officer.

Some background: Luis Rocha-Mayo was involved in a collision with two motorcyclists while driving his car home after bar time. One motorcyclist died; the other was injured. Rocha-Mayo was convicted of first-degree reckless homicide by use of a dangerous weapon; homicide by intoxicated use of a vehicle; first-degree reckless endangerment by use of a dangerous weapon; and operating a motor vehicle without a valid license, causing the death of another person. He appealed those convictions, as well as the order denying his motion for post-conviction relief.

The parties dispute precisely what led to the accident. Rocha-Mayo would contend that the group of motorcyclists was angry because he inadvertently separated them and were threatening him, causing him to become distracted and leading to the accident. The motorcyclists dispute that story.

After the accident an ambulance transported the semiconscious Rocha-Mayo to the hospital. The emergency room (ER) physician directed a registered nurse to perform a PBT to determine whether Rocha-Mayo's confusion was the result of head trauma, suggested by his facial injuries, or intoxication, suggested by the odor of alcohol on his breath. The PBT result was 0.086. Rocha-Mayo admitted consuming a number of beers over several hours.

At trial, Rocha-Mayo tried unsuccessfully to challenge admission of the PBT result. He then entered a guilty plea to operating a motor vehicle without a valid license and causing the death of another person. The remaining three charges were tried to a jury. After several days of deliberations, the jury found him guilty. On appeal, he argued that the trial court erred in admitting his PBT result because Wis. Stat. § 343.303 expressly bars admission of a PBT result in a motor vehicle prosecution. The Court of Appeals disagreed and affirmed.

The Court of Appeals ruled that "[b]y its plain language, Wis. Stat. 343.303 applies to PBTs administered by law enforcement officers for the specified purposes of determining whether probable cause exists to arrest an individual for a motor vehicle intoxication offense, and whether to require or request chemical tests under Wis. Stat. § 343.305(3)."

The court reasoned that "the preliminary breath screening test" in the last sentence of the statute must refer back to the PBTs addressed in the preceding part of the statute. The court decided that this language does not apply to breath alcohol tests performed by medical personnel for diagnostic or treatment purposes. Accordingly, the court ruled that the statute did not bar the PBT's admission. The court thus deemed admission or exclusion of the PBT evidence a decision committed to the trial court's discretion. See State v. Doerr, 229 Wis. 2d 616, 621, 599 N.W.2d 897 (Ct. App. 1999). Rocha-Mayo says the trial court did not merely allow introduction of the test result, but further gave it a prima facie effect. Rocha-Mayo contends this effectively instructed the jury it could convict him on that evidence alone. Rocha-Mayo says that the device used to administer the PBT--the Alco-Sensor IV--is approved for law enforcement use in Wisconsin but it is not, however, certified for evidentiary use in Wisconsin courts.

Moreover, Rocha-Mayo emphasizes that the legislature has established rigid protocol for breath testing that was not met in this case. "For purposes of this section, if a breath test is administered using an infrared breath-testing instrument . . . The test shall consist of analyses in the following sequence: one adequate breath sample analysis, one calibration standard analysis, and a second, adequate breath sample analysis." § 343.305(6)(c), Stats. The legislature went on, subject to this minimum protocol, to authorize the DOT to approve techniques or methods of performing chemical analysis of the breath to be used in OWI prosecutions. § 343.305(6)(b).

Rocha-Mayo emphasizes that it is undisputed the PBT administered to Rocha-Mayo did not adhere to this minimum protocol. From Kenosha County.

2011AP2868-CR State v. Williams
This case examines whether Wis. Stat. § 346.65(2)(am)6 imposes a mandatory minimum period of confinement for OWI seventh offense or more and prohibits the imposition of probation in such cases.

Some background: Clayton Williams was convicted, following entry of a negotiated guilty plea, of operating a motor vehicle while under the influence of an intoxicant, seventh offense, contrary to Wis. Stat. § 346.65(2)(g)2. The State agreed to recommend a bifurcated sentence of six years, including three years of initial confinement. Williams was free to argue for a lesser sentence.

Williams argued for probation. The circuit court refused probation, explaining that it read § 346.65(2)(am)6 to preclude probation and require it to impose a mandatory minimum sentence of six years, including three years of initial confinement. Accordingly, the court imposed a six-year bifurcated sentence with three years of initial confinement.

Williams appealed, arguing that the circuit court sentenced him on the basis of the erroneous belief that it was required to impose a mandatory minimum sentence and was prohibited from ordering probation.

A divided Court of Appeals agreed with Williams, concluding that the plain meaning does not mandate the imposition of a bifurcated sentence with a mandatory period of initial confinement. Accordingly, the Court of Appeals reversed and remanded for resentencing.

Court of Appeals Judge Brian W. Blanchard dissented. He agreed that the state's primary argument was incorrect, namely that, by its plain meaning, the statute requires a mandatory minimum sentence in all seventh and subsequent OWI offense cases. However, like the circuit court, he concluded that the language of § 346.65(2)(am)6. is ambiguous. He then observed in some detail that the legislative history demonstrates that the legislature intended to apply the mandatory minimum sentence to all seventh and subsequent OWI offense cases.

The Court of Appeals concluded that there is no ambiguity.

Contrary to its position at the Court of Appeals, the state now argues that the statute is ambiguous such that the Court of Appeals should have examined the statute's legislative history. The state says that history "clearly reveals that the Court of Appeals' interpretation of the statute is wrong."

A decision by the Supreme Court could clarify sentencing requirements under § 346.65(2)(am)6. From Monroe County.

2012AP320 Waranka v. Wadena Ins. Co.
This case began with a snowmobile accident in Munising, Mich. that resulted in the death of a Wisconsin man. The central issue is which state's laws regarding the terms and limits of the wrongful death claim should apply. In other words, may a Wisconsin court recognize the validity of a Michigan wrongful death claim, but nonetheless determine that who may bring the claim, and how much may be recovered, is governed by Wisconsin law or the law of some other jurisdiction under prevailing choice of law rules?

Some background: On the morning of Jan. 29, 2009, there was an accident involving six snowmobiles and their operators. One of the individuals involved in the accident was Ozaukee County resident Nicholas Waranka, who had gathered with other snowmobilers for a ride in the Hiawatha National Forest sponsored by a snowmobile dealership. The accident occurred before the organized ride for the day.

Nicholas suffered a serious head injury in the accident and ultimately died. Another rider, Paul Murphy, also died as a result of injuries sustained in the accident.

Waranka's wife, Sharon Waranka, on her own behalf and as the personal representative of Nicholas's estate, filed a lawsuit in the Ozaukee County Circuit Court against five individual riders, most of whom if not all, are Wisconsin residents (Michael Eidenberger, Scott Brewer, Zachary Nelson, Larry Neman, and Mark Jonas) and their respective insurers.

She also named as a defendant the insurance carrier for Murphy under Wisconsin's direct action statute. Sharon alleged that each of the named individual defendants and Murphy had been negligent in operating their snowmobiles, which had been a cause of the accident that ultimately killed Nicholas.

The circuit court concluded that although Sharon could not bring a wrongful death claim under Wis. Stat. § 895.03 because that statute applies only to "a death caused in this state," all of the terms and limitations of Wis. Stat. § 895.04 would still apply to the claim. This meant, among other things, that her recovery would be limited by the noneconomic damage caps contained in Wis. Stat. § 895.04.

Sharon filed a petition for leave to file an interlocutory appeal. She claimed that Wis. Stat. § 895.04 was tied to Wis. Stat. § 895.03. Since Wis. Stat. § 895.03 did not apply by its own terms, then Wis. Stat. § 895.04 also should not apply. On the other hand, the defendants argued that Wis. Stat. §§ 895.03 and 895.04 are separate statutes and that § 895.04 may be applied even when § 895.03 is inapplicable.

The Court of Appeals ultimately affirmed in part, reversed in part and remanded the matter to the circuit court for further proceedings on Sharon's claim.

The Court of Appeals agreed with the circuit court that Sharon could not bring a wrongful death action under the plain terms Wis. Stat. § 895.03 because the accident had occurred in Michigan. The Court of Appeals noted, however, that Wisconsin courts are required by the full faith and credit clause of the federal constitution to allow plaintiffs to bring suit in a Wisconsin court based on a claim recognized by the laws of another state where no Wisconsin law provides a cause of action and Wisconsin has no public policy against such a claim.

The Court of Appeals reversed the circuit court's interlocutory order that recognized a wrongful death cause of action under Michigan law but directed that Wisconsin law, including the provisions of Wis. Stat. § 895.04, should apply to all other issues in the case.

Defendants Brewer, Nelson, Jonas and State Farm Mutual Automobile Insurance Company present two specific issues to the Supreme Court:

  • May the court apply Wis. Stat. § 895.04 to the Plaintiff's wrongful death action to define the class of beneficiaries, the limitation on non-economic damages, and to determine who can bring an action for wrongful death, where Wisconsin's choice of law rules strongly favor application of Wisconsin law, but where the accident causing death occurred in Michigan?
  • Is conflict of law analysis required in a wrongful death action, where the death occurred in Michigan but where almost all of the relevant parties and the relatives of the decedent are domiciled in Wisconsin or brought into the lawsuit under Wisconsin's direct action statute?

From Ozaukee County.

2012AP580 Adams v. Northland Equipment Co.
This case examines the standard courts are to use in cases where the plaintiff has received worker's compensation benefits when deciding whether to grant an insurer's motion to compel an injured worker plaintiff to accept a statutory settlement offer and the procedure that they are to use in reaching their decision.

Some background: Russell Adams was an employee of the Village of Fontana. On Feb. 21, 2009, he was plowing snow using a village truck. The plow struck a raised portion of the pavement in the village parking lot. The plow did not release. Instead, the entire truck came to an abrupt stop, causing Adams to be thrown forward and upward. He struck his head against the ceiling of the truck's cab, which resulted in permanent injury to his spinal column.

Northland Equipment Co. (Northland) sold the plow to the village that had been attached to the truck Adams had been driving. It had also repaired the plow just prior to accident.

Adams applied for and received some worker's compensation benefits. His counsel indicated at a hearing that Adams expects to incur additional medical expenses in the future and to make additional compensation claims.

Adams sued Northland and its insurer, Cincinnati Insurance Co. (Cincinnati), on theories of negligence and strict liability to recover damages for his personal injuries. He joined The League of Wisconsin Municipalities Mutual Insurance Company (LWMMIC) as a defendant because of its subrogation interests for the worker's compensation payments it had made to him.

Northland and Cincinnati filed a motion for summary judgment. Although the circuit court apparently believed that Adams may have difficulties with certain parts of his claims, it concluded that he had presented enough evidence to warrant a trial and it denied the motion.

After the denial of the summary judgment motion and just a few weeks prior to trial, however, Northland and Cincinnati made a statutory settlement offer. While Adams rejected the offer out of hand, LWMMIC agreed that it would accept the offer. LWMMIC then filed a motion asking the circuit court to compel Adams to accept the offer pursuant to two cases: Bergren v. Staples, 263 Wis. 477, 57 N.W.2d 714 (1953) and Dalka v. American Fam. Mut. Ins. Co., 2011 WI App 90, 334 Wis. 2d 686, 799 N.W.2d 923.

Bergren held that a worker's compensation insurer could be compelled to accept a settlement because the insurer's right to bring a claim against a tortfeasor was only statutory in nature and therefore the insurer had no state constitutional rights to a jury trial; Dalka held that circuit courts may compel an individual plaintiff to accept a settlement where the plaintiff and the worker's compensation carrier disagree.

The circuit court scheduled a hearing on the motion. In advance of the hearing, the court ordered the parties to provide calculations regarding how the proceeds of the settlement offer, if accepted, would be distributed under Wis. Stat. § 102.29. Adams and LWMMIC filed the requested calculations.

Adams argued that the circuit court could not, as a matter of law, compel him to give up his constitutional right to a jury trial and to accept the settlement over his objection. He also contended that the settlement offer should be rejected because it was far below the value of his claims.

The circuit court concluded that Adams should be compelled to accept the offer in the following terms:

"I believe based upon the evidence submitted in support of and in opposition to the motion for summary judgment that the risk of a finding of no liability in this case exceeds the possibility of recovering something beyond $200,000, and for that reason the motion is granted."

Adams appealed, and the Court of Appeals concluded that the circuit court had reached a decision that "reflected a logical interpretation of the facts surrounding the settlement offer and consideration of the appropriate factors bearing on that decision."

Adams claims that his case raises the question of whether the provision in the worker's compensation law authorizing circuit courts to compel acceptance of settlement offers violates two provisions of the Wisconsin Constitution.

His appeal to the Supreme Court can be boiled down to two issues:

  • May a trial court lawfully compel an injured employee who has accepted worker's compensation benefits and is suing an employer to accept a settlement offer from the employer to which the employee objects, but which the employer/worker's compensation insurance carrier wants to accept?
  • If the trial court has the authority to compel acceptance of such a settlement offer, what process and standard should apply to the trial court's consideration of a motion to compel acceptance of a settlement offer? From Rock County.

2012AP2115 Williams v. Valued Services
The certification from the District IV Court of Appeals asks the Supreme Court to examine two issues related to certain short-term consumer loans:

  • whether the Wisconsin Consumer Act (WCA) precludes a court from determining that a very high interest rate is solely by itself unconscionable; and,
  • what role should a high interest rate play in a court's determination of unconscionability under the WCA?

The Court of Appeals summarizes the certified issues as "where to draw the line of unconscionability for short-term loans with extremely high interest rates."

Some background: Timothy Williams, the plaintiff-appellant, is disabled and his sole source of income is a Social Security Disability payment of $1,145.70 per month. His beginning and ending balances in his bank account in November 2010 were both below $10.00.

The defendant-respondent, Valued Services of Wisconsin, LLC d/b/a Check Advance Reedsburg (Valued Services) was aware of both of these facts.

Williams began taking out short-term loans with Valued Services several years ago in order to pay some medical expenses. Thus, the loans at issue in this case were not the first ones he had received from Valued Services.

In December 2010, Williams obtained a $550 loan from Valued Services. The finance charge for the one-month loan was $156.75, giving the loan an annualized percentage rate (APR) of 385.25%. Thus, the loan required Williams to make a single payment of $706.75 on or before Jan. 10, 2011.

A new statute regulating "payday" loans went into effect on Jan. 1, 2011. See Wis. Stat. § 138.14 (2010-11). Among the provisions of the new statute was a cap on payday loans. New payday loans were not to exceed the lesser of $1,500, inclusive of all interest or finance charges, or 35 percent of the borrower's monthly income. The new law also limited lenders of payday loans to only one "rollover," which is the extension of a new loan to pay off a prior loan.

On Jan. 12, 2011, Valued Services extended a 12-month consumer loan to Williams. The principal amount of this loan was $706. The total finance charges if repaid in 12 monthly installments would have been $1,241.40, for an APR of 246.51 percent. The loan agreements allowed Williams the opportunity to opt out the binding arbitration provision and the electronic fund transfer agreement. In February 2011 Williams notified Valued Services that he was opting out of both provisions.

Williams did not repay the loan. Instead, in March 2011 he sued Valued Services in the Sauk County circuit court. He claimed, among other things, that the January 2011 loan had exceeded the new interest rate cap on payday loans; that the loan was unconscionable under the WCA due to the terms of the loan (waiver of right to trial, waiver of class action relief, and waiver of rights under federal telephone consumer protection act) and Valued Services' practice of making loans when it knew that it would be "virtually impossible" for the consumer to repay the loan; and that Valued Services had violated the WCA by attempting to collect on the unconscionable January 2011 loan.

Both parties filed motions for summary judgment. The circuit court granted summary judgment to Valued Services and dismissed Williams' complaint in its entirety.

Williams appealed the dismissal of his complaint. His appellate brief to the Court of Appeals stated the issues to be decided on appeal as follows: ·         Under Wis. Stat. § 138.14(1)(k), was the loan at issue a payday loan? ·         Did the defendant violate the Wisconsin Consumer Act by engaging in an unconscionable course of conduct and by attempting to collect on an unlawful payday loan?

A decision by the Supreme Court could interpret the scope of the recent payday loan statute and could provide guidance on the interplay between the fact that the statutes expressly place no limits on interest rates in consumer loans and the fact that the WCA expressly contemplates unconscionability as a limit on certain loan agreements. From Sauk County.

2011AP3007-CR State v. Wantland
This case examines whether a driver's general consent to have his vehicle searched became limited when the passenger asked a deputy, "got a warrant for that?" before the deputy opened the passenger's briefcase that was found in the vehicle.

Some backround: A deputy performed a traffic stop on a vehicle in which Derik J. Wantland was a passenger. The driver, Wantland's brother, consented to a search of the vehicle and placed no relevant limitation on the scope of that consent. The driver and Wantland exited the vehicle and remained close to the rear of it for all pertinent aspects of the deputy's search.

After searching the front and center areas of the vehicle, the deputy opened the hatchback and continued the search. When he got to a briefcase, the deputy asked the men what was inside it. Wantland said, "a laptop." Then Wantland said, "Got a warrant for that?" The deputy responded by saying: "I can open up the, uh, laptop." Wantland laughed and remarked that the briefcase also contained Visine and antacid pills.

The deputy opened the briefcase and found Visine, one empty antacid pill bottle, and one antacid pill bottle with two pills in it which appeared inconsistent with the type of pills that belonged in the bottle. The pills were later identified as morphine, and the deputy found documents in the briefcase identifying Wantland as the owner. Wantland was arrested and additional morphine pills were found on him at the jail. The state charged Wantland with possession of a narcotic drug.

Wantland moved to suppress the drug evidence. The trial court denied the motion after finding that the driver properly authorized the search and that Wantland's warrant question did not constitute a limitation on that consent.

Wantland entered a plea and appealed, unsuccessfully. Wantland argued on appeal that the warrantless search of his briefcase was illegal because he limited the driver's consent to search the vehicle as it related to the briefcase by asking "Got a warrant for that?" when the deputy got to that item during the search.

The Court of Appeals disagreed. Citing cases from other jurisdictions, the Court of Appeals held that Wantland would need to have clearly and unequivocally asserted that he, not the driver, was the owner of the briefcase and that he was objecting to the search of it. The Court of Appeals also concluded that given the inherent challenges and dangers involved in roadside vehicle searches, it is unreasonable to expect a searching officer to stop searching and seek clarification when the owner of property located within the vehicle fails to clearly and unequivocally assert his or her ownership of the property and objection to the search of it.

The Court of Appeals conceded that Wantland's question "could be interpreted as an objection to searching the briefcase," but ultimately held that it was not an unambiguous declaration of ownership of the briefcase or an objection to the search of it.

Wantland contends his question to the deputy was not just a general inquiry but a declaration of ownership in the briefcase, given that Wantland did not ask about a warrant when the deputy searched other parts of the vehicle. He claims that when an item in a car is a private item of the passenger, then the driver's consent should not extend to that item.

The state says a defendant may only withdraw consent given by a third party by clearly and unequivocally asserting that he, not the third party, is the owner of the item in question and that he has an objection to the search of the item. The state says Wantland failed to do so, and the officer had no way of knowing whether the briefcase belonged to Wantland or his brother and if Wantland was asking the question on his brother's behalf. From Sheboygan 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:

2012AP296 Young v. Persinger - Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley dissent.

2012AP505-CR - State v. Murphy Chief Justice Shirley S. Abrahamson dissents.
2013AP433 Wells Fargo Bank v. Harrop

2013AP778/79 Patrick J.T. v. Shelly S. - Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley dissent.

2010AP3069 State v. Howard - Chief Justice Shirley S. Abrahamson dissents.
2011AP891-92-CR State v. Moseley
2011AP1923 State v. Maaddox - Chief Justice Shirley S. Abrahamson dissents.
2012AP71-CR State v. Wiley - Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley dissent.
2013AP1223-W Rhodes v. Meisner - Chief Justice Shirley S. Abrahamson dissent.

2011AP2091-CR State v. Walker - Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley dissent.

2011AP2973-74-CR State v. Jackson - Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley dissent.

2011AP2357 Westrich v. Memorial Health Center

2011AP2802-CR State v. Klotz - Justice Ann Walsh Bradley dissents.
2012AP1300 Ronald J.R. v. Alexis L.A. - Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley dissent.

2009AP3073-CR State v. Griep - Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley dissent.

Tom Sheehan
Court Information Officer
(608) 261-6640

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