Wisconsin Supreme Court accepts five new cases

Madison, Wisconsin - January 13, 2014

The Wisconsin Supreme Court has voted to accept five 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' opinions for the newly accepted cases are hyperlinked where available.

2012AP2499 Legue v. City of Racine
This certification from the District II Court of Appeals arises from a traffic accident in which an officer driving a police squad collided with another vehicle at an intersection in Racine.

The Supreme Court examines whether governmental immunity applies when someone is injured because an officer proceeds against a traffic signal as authorized by Wis. Stat. § 346.03(2)(b), if the officer slowed the vehicle and activated lights and sirens as required by § 346.03(3) but nonetheless arguably violated the duty to operate the vehicle "with due regard under the circumstances" as required by § 346.03(5)?

The Court of Appeals says the ramifications of this case are significant because if immunity for the manner of entering the intersection is held to be subject to the "due regard" condition, then immunity will become "just an empty shell if an accident results."

Some background: In July of 2009, Officer Amy Matsen received a dispatch calling her to the scene of a motor vehicle accident. Matsen headed north on Douglas Avenue in Racine at a high rate of speed with lights and sirens engaged, periodically sounding her horn. As she neared the intersection with South Street, she saw the light was red and she slowed down. A restaurant at the southwest corner of the intersection blocked the view between the western portion of South Street and the southern portion of Douglas Avenue. Matsen reduced her speed to 27 miles an hour, below the posted speed limit of 35, and proceeded through the intersection.

Eileen Legue, the plaintiff in this case, was traveling east on South Street at 30 miles an hour and was just about to enter the intersection with Douglas Avenue. Legue had her windows up and music playing and did not hear Matsen's sirens or horn. The front end of Legue's vehicle struck the driver's side of Matsen's vehicle. Both women were injured in the collision.

Legue filed suit, seeking compensation for damages she sustained as a result of Matsen's alleged negligence. Matsen's answer included the defense of governmental immunity and the public officer's privilege to violate traffic laws in an emergency. A jury trial was held on the issues of whether, upon entering the intersection, Matsen drove with due regard under the circumstances for the safety of all persons; if not, whether Matsen's negligence was a cause of the accident; and whether Legue was contributorily negligent. The jury found both parties negligent and found that each was equally at fault.

Matsen filed motions after verdict on the grounds that, as a matter of law, the evidence established she could not have prevented the accident except by deciding not to enter the intersection, a decision for which she claimed she was immune from liability. Legue's response was that although Matsen's decision to enter the intersection was discretionary, the duty to operate her vehicle with due regard under the circumstances for the safety of all persons was ministerial.

Legue argued that because the restaurant blocked the view, Matsen had a ministerial duty to greatly reduce her speed, or even stop, before entering the intersection. The circuit court granted Matsen's motions, finding that Matsen was immune from liability for damages resulting from her discretionary decision to enter the intersection.

Legue appealed, leading to this certification.

District II notes governing case law interprets the statute to mean that public employees are generally immune for damages caused by their acts in the scope of their employment, subject to four exceptions: performance of ministerial duties, known dangers giving rise to ministerial duties, exercise of medical discretion, and intentional, willful, and malicious actions. See Brown v. Acuity, 2013 WI 60, ¶42, 348 Wis. 2d 603, 833 N.W.2d 96.

The parties to this case agree that Matsen's decision to enter the intersection was discretionary and that liability cannot be premised on that decision by itself. It says the pertinent question presented here was left open by Brown: Whether an officer who fulfills the ministerial duties of § 346.03(2)(b) and (3) but arguably violates the duty to operate the vehicle with due regard under the circumstances is entitled to immunity.

A decision by the Supreme Court could clarify the extent of governmental immunity available to officers involved in accidents while responding to an emergency. From Racine County.

2012AP2557-CR State v. Bokenyi
This case examines whether a prosecutor breached a plea agreement by allegedly undermining the agreed-upon sentencing recommendation at the sentencing hearing, and whether defense counsel was ineffective for failing to object to the alleged breach. In reviewing this case, the Supreme Court is expected to consider the Court of Appeals' decision in State v. Sprang, 2004 WI App 121, 274 Wis. 2d 784, 683 N.W.2d 522. That decision held that when defense counsel does not consult with the defendant when foregoing an objection to a breach of the plea agreement, counsel performs deficiently because that is "tantamount to entering a renegotiated plea agreement without [the defendant's] knowledge or consent."

Some background: William F. Bokenyi was charged with ten crimes arising out of an incident that occurred at his apartment during which he repeatedly threatened to kill his wife and their son. When officers arrived at the scene, the defendant was holding two knives and refused to drop them.

Pursuant to a plea agreement, the defendant pled guilty to first-degree recklessly endangering safety, felony intimidation of a victim, and failure to comply with an officer's attempt to take him into custody.

The remaining charges were dismissed and read in for sentencing purposes. The state agreed to cap its sentencing recommendation "at the high end range" of the pre-sentence investigation (PSI) report, which recommended three or four years of initial confinement followed by three or four years of extended supervision on the first-degree recklessly endangering safety charge. The PSI recommended that the trial court withhold sentence on the other two counts and put the Bokenyi on probation.

Before ultimately recommending the agreed upon sentence at the sentencing hearing, the prosecutor read a letter from the victim, indicating she would fear for her and her child's safety whenever Bokenyi would be released. The prosecutor also recounted a conversation Bokenyi allegedly had with a jailer in which he said he wanted to "shoot up some cops," and anyone else who got in the way.

The circuit court sentenced the defendant to concurrent terms of imprisonment on each of the three convictions. The court imposed seven years and five months of initial confinement and five years of extended supervision on the first-degree recklessly endangering safety count. It also sentenced the defendant to five years of initial confinement and five years of extended supervision on the intimidation of a victim count and one year of initial confinement and one year of extended supervision on the failing to comply with an officer count.

The defendant moved for resentencing, arguing that the prosecutor's remarks at sentencing had breached the plea agreement and that trial counsel was deficient in failing to object.

The defendant appealed, as noted above, the Court of Appeals reversed and remanded with directions for resentencing.

Having concluded that the state materially and substantially breached the plea agreement, the Court of Appeals went on to hold that trial counsel performed deficiently in failing to object to the breaches. It pointed out an attorney's failure to object to a material and substantial breach of the plea agreement constitutes deficient performance unless the attorney did so for a valid strategic reason and consulted with the defendant about the decision not to object. See Sprang.

The state asks the Supreme Court to overrule Sprang. The state says it believes Sprang erroneously equates the failure to object to a prosecutor's breach of a plea agreement with a renegotiation of the agreement and from that mistaken premise, Sprang imposes a duty of consultation on defense counsel that is legally unwarranted and difficult to implement and which makes it possible for a defendant to prevail on a claim of ineffective assistance of counsel, regardless of whether counsel had a valid strategic reason for not objecting.

The defendant says the factual distinction between Sprang and this case is that here counsel had no strategic reason for not objecting. From Polk County.

2012AP2170 State v. Spaeth
The central question in this certification is whether a Wis. ch. 980 petition to commit a sexually violent offender may specify a predicate offense that is not the same offense for which the person is in custody.

Wis. § 980.02(1m) and (2) require that a petition for the commitment of a sexually violent offender be filed "before the person is released or discharged" and must allege that a person has been convicted of a sexually violent offense.

The Court of Appeals poses the question: "Does § 980.02 additionally require that the commitment petition be filed before the person is released or discharged from a sentence that was imposed for the same sexually violent offense that is alleged in the petition as the predicate offense, as stated in State v. Gilbert, 2012 WI 72, ¶51, 342 Wis. 2d 82, 816 N.W.2d 215?"

Some background: In 1993, in case No. 1992CF328 (the 1992 case), Josehp J. Spaeth was convicted of first-degree sexual assault of a child. In 2004, Spaeth was paroled. While on parole, Spaeth reoffended, and his parole was revoked. Spaeth was discharged from this 1993 conviction in June 2008.

In 2007, in case No. 2006CF350 (the 2006 case), Spaeth was convicted of child enticement, based on his conduct while out on parole on the 1992 case.

In October 2008, the circuit court vacated Spaeth's conviction and ordered a new trial due to prejudicial and extraneous information in the jury room.

In early 2009, Spaeth pled no contest to amended charges for child enticement and was convicted and sentenced. The 2009 conviction was reversed by the Supreme Court on July 13, 2012, State v. Spaeth, 2012 WI 95, ¶3, 343 Wis. 2d 220, 819 N.W.2d 769, and Spaeth's conviction was vacated on Aug. 20, 2012, and the child enticement charges were dismissed on August 21, 2012.

In the meantime, on Nov. 2, 2010, the state filed a petition for Spaeth's ch. 980 commitment as a sexually violent person. The petition cited the 2006 case as the predicate offense. See Gilbert, 342 Wis. 2d 82, ¶4 n.4 (using phrase "predicate offense" to refer to the sexually violent offense specified in the petition).

While the petition was pending, the Supreme Court overturned his conviction. By letter dated Aug. 15, 2012, the state informed the circuit court that it intended to continue with the petition, relying on the 1992 case instead of the 2006 case. Spaeth responded that the petition expressly relied upon only the 2006 case. Further, argued Spaeth, even if amended to rely on the 1992 case, the petition was untimely because Spaeth had been discharged from that case in 2008, well before the petition was filed on Nov. 2, 2010.

The circuit court agreed with Spaeth, ruling that neither the 2006 case nor the 1992 case could form the predicate offense for the petition because Spaeth had been discharged from one conviction (from the 1992 case) and the other convictions had been overturned and vacated, and the enticement charges dismissed (from the 2006 case). The circuit court denied the state's motion to amend, and dismissed the petition.

The state appealed, arguing that the circuit court erred in denying amendment of the petition to specify the 1992 case as the predicate offense.

The Court of Appeals says the dispute is whether the circuit court erred in denying the State's proposed amendment of the petition to specify the intact, though discharged, 1992 case as the predicate offense. 

A decision by the Supreme Court could determine whether a ch. 980 petition may specify a predicate offense that is not the same offense for which the person is in custody, and in this case, if it was error for the circuit court to assess the viability of the petition at the time of the requested amendment. From Winnebago County.

2012AP1644 Jackson v. Wis. Co. Mut. Ins. Corp.
This dispute over underinsured motorist coverage arises from an incident in which a Milwaukee County Sheriff's deputy was struck by a car while working at General Mitchell Airport in Milwaukee. The Supreme Court examines the meaning of the word "use" under the policy and whether the deputy was "using" the car that struck her.

Some background: On June 8, 2010, deputy Rachelle Jackson was patrolling the sidewalk on "the pickup side" of the terminal. A car stopped and the driver, Daniel Lynch, indicated he needed directions to a hotel because he had become lost. Jackson motioned the car to pull to the curb so it would be out of traffic. She then spoke to the occupants of the car through the passenger-side window and gave them directions to the hotel.

After completing the directions, the driver asked Jackson how he would be able to get back into traffic. Jackson responded that she would go in front of his car and then around to the driver's side and help him get into traffic. As Jackson walked in the pedestrian walkway in front of the car, the driver apparently inadvertently accelerated, and the car struck her.

At the time of the incident, Milwaukee County had a "Public Entity Liability Insurance" policy (the policy) with Wisconsin County Mutual Insurance Corp. (WCMIC). Jackson was an additional insured under that policy because she was an employee of the county acting within the scope of her employment or authority.

The policy provided underinsured motorist coverage to "an insured . . . while using an automobile within the scope of his or her employment or authority." The policy further states that "[u]sing has the meaning set forth in Wis. Stat. Sec. 632.32(2)(c) and includes driving, operating, manipulating, riding in and any other use."

Jackson sued WCMIC and the driver in circuit court.

WCMIC moved for summary judgment on the ground that Jackson was not "using" an automobile at the time of the accident, and therefore that the underinsured motorist coverage did not apply.

The circuit court granted summary judgment to WCMIC, concluding that Jackson had not been "using" the underinsured driver's car when she had been struck and injured.

Jackson appealed, and the Court of Appeals reversed. It concluded that Jackson's helping the underinsured vehicle to safely re-enter traffic constituted "manipulating" that vehicle or "any other use" of the underinsured vehicle.

The Court of Appeals pointed to two of its own prior decisions as support for interpreting "use" to cover the present fact situation. In Garcia v. Regent Ins. Co., 167 Wis. 2d 287, 481 N.W.2d 660 (Ct. App. 1992), the Court of Appeals concluded that sitting in a car while calling and gesturing to a child that it was safe to cross a street constituted "use" of the vehicle within the meaning of the insurance policy. In Trampf v. Prudential Prop. & Cas. Co., 199 Wis. 2d 380, 544 N.W.2d 596 (Ct. App. 1996), the Court of Appeals concluded that a vehicle had been "used" for insurance purposes when dogs tied to the roll bar of the vehicle had bitten a passing pedestrian, even though the vehicle's owner was not in or near the vehicle at the time of the bite.

The Court of Appeals concluded that Jackson was "using" the Lynch vehicle at the time of her injury "because her injuries directly 'flowed from' and 'grew out of' her helping the driver safely re-enter traffic—a responsibility that was obviously within the scope of her employment."

WCMIC contends the Court of Appeals stretches the definition of "use" of a vehicle too far in that it was not Jackson's vehicle or her employer's vehicle, she was not touching the vehicle, and a third party was, in fact, operating the vehicle at the time it struck Jackson.

The Supreme Court is expected to provide guidance on what constitutes "using" a vehicle for insurance coverage purposes. Justice David T. Prosser did not participate. From Milwaukee County.

2012AP1769-70-CR State v. O'Brien
2012AP1863-CR State v. Butts
This consolidated case presents constitutional challenges to the recently enacted Wis. Stat. § 970.038, which allows hearsay evidence to be introduced and relied upon for a finding of probable cause at a preliminary hearing.

Some background: Under Wisconsin law, the defendant is entitled to an "initial appearance" upon arrest, Wis. Stat. § 970.01, followed soon after by a "preliminary examination." Sec. 970.03(2). This preliminary examination is a creature of statute and is not mandated by federal or state constitutions. State v. Camara, 28 Wis. 2d 365, 370, 137 N.W.2d 1 (1965). Its sole purpose is to "determin[e] if there is probable cause to believe a felony has been committed by the defendant." Sec. 970.03(1).

Before the enactment of § 907.038 in 2011, hearsay was inadmissible at preliminary examinations in Wisconsin criminal proceedings, unless the hearsay fell within one of the statutory exceptions by which hearsay is admissible. See Wis. Stat. §§ 908.07 and 970.03(11) (2009-10) (repealed by 2011 Wis. Act 285); see also Mitchell v. State, 84 Wis. 2d 325, 333, 267 N.W.2d 349 (1978). In 2011, the legislature enacted 2011 Wis. Act 285, which repealed §§ 908.07 and 970.03(11) (2009-10), and created § 970.038, which states:

970.038 Preliminary examination; hearsay exception.
(1) Notwithstanding s. 908.02, hearsay is admissible in a preliminary examination under ss. 970.03, 970.032, and 970.035.
(2) A court may base its finding of probable cause under s. 970.03 (7) or (8), 970.032 (2), or 970.035 in whole or in part on hearsay admitted under sub. (1).

In this consolidated case arising out of interlocutory appeals, the Court of Appeals held that § 970.038 does not violate a defendant's right to confrontation, due process, compulsory process, or effective assistance of counsel.

In May 2012, the state charged Martin and Kathleen O'Brien with multiple counts of felony child abuse. The O'Briens were released on signature bonds shortly thereafter. Before the preliminary examination, Martin O'Brien filed a motion seeking to preclude the state from using hearsay evidence at the preliminary examination, and the state filed a motion to quash Kathleen O'Brien's subpoena of one of the victims and to require an offer of proof as to what relevant testimony the victim could provide to defeat probable cause.

At the preliminary examination, the trial court denied Martin O'Brien's motion to preclude hearsay evidence. The court granted the state's motion to quash Kathleen O'Brien's subpoena and to preclude the O'Briens from calling the victim as a witness at the preliminary examination. In the evidentiary portion of the preliminary examination, the State's sole witness was a police investigator who conducted some, but not all, of the initial interviews with the alleged victims and the follow-up investigation. The court found the investigator's testimony established probable cause and bound both of the defendants over for trial.

The O'Briens argue that § 970.038 violated their rights to confrontation, due process, compulsory process, and assistance of counsel.

In April 2012, the state charged Charles E. Butts with child sexual assault and child enticement as a persistent repeater. In the complaint, probable cause for the charges is based upon statements made by two minors reporting that Butts sexually assaulted them.

At Butts' preliminary examination, the state's sole witness was a police detective who testified that during her investigation, one minor female identified Butts in a photo lineup as the man who sexually assaulted her. The detective further testified that she was aware of a statement made by a different minor female, and recorded in a police report prepared by a different investigator, that Butts sexually assaulted that girl as well. The detective admitted in testimony that she was not present when the second girl's statement was taken and was not certain which detective took that statement. The trial court overruled Butts' hearsay objection and held that the hearsay evidence established probable cause to bind over Butts for trial.

Butts argues that § 970.038 violated his rights to confrontation, cross-examination, compulsory process, and due process.

In an amicus brief, the State Public Defender argues that § 970.038 violates due process because by its operation, preliminary examinations may no longer provide for meaningful review of the charging decision or meaningful review of whether sufficient evidence exists for a bindover.

The state responds by noting, among other things, that preliminary examinations are not mandated by federal or state constitutions; thus, the State claims, it is the legislature's prerogative to make the changes it deems appropriate to the type of evidence that may be admitted at the preliminary hearing and used as the basis for a bind-over decision.

A decision by the Supreme Court could determine the constitutionality of § 970.038. From Walworth 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:

2012AP801-CR State v. Rupar
2012AP2637 State v. Van Camp
2012AP2747-CR State v. Broadnax
2013AP823-W Lee v. Kemper
2013AP871-CRNM State v. Hill

2011AP2213 Erbs v. Erbs

2010AP2910-CR State v. Leppert
2011AP2831 Cody v. Target Corp.
2011AP2955-CR State v. Cazares-Herrera - Chief Justice Shirley S. Abrahamson and Justice Patience Drake Roggensack dissent.
2012AP24 Wall v. WERC
2013AP477 Prince v. Schwarz

2012AP2445-W Poirier v. Cir. Ct. for Dodge Co.

Eau Claire
2012AP542 Beaver v. Exxon Mobile - Justice David T. Prosser, Jr. and Justice Patience Drake Roggensack dissent.
2012AP2720-NM State v. Bush

Fond du Lac
2012AP1759 Kedinger v. Strook

2012AP1451 State v. Camden

2012AP727 Erdman v. Wis. DOT

2010AP1601 Juneau Co. Little Yellow Drainage Dist. v. Krizan - Justice Patience Drake Roggensack dissents.

2010AP2516-CR State v. Hunt
2012AP1079-CR State v. Beals
2012AP1495 State v. Jones
2012AP1542 Tocholke v. Tocholke
2013AP1277-78-OA Peterson v. PDQ Food

La Crosse
2011AP2471 State v. Rodriguez
2012AP1558-CR State v. Stanley
2012AP1817 Poehling v. Trust Point

2012AP970-CR State v. Jorgensen

2011AP1028-CR State v. Emerson
2012AP1265 RBF v. DDB Limited Part.

2010AP2447-CR State v. Lewis
2011AP1765-CR State v. Little
2011AP2862-63 State v. Leiser
2012AP120-CRNM State v. Davis
2012AP420-CRNM State v. Howard
2012AP823-CR State v. Thomas
2012AP928-CR State v. Collins
2012AP1052-CR State v. Williams
2012AP1118-CR State v. Patrick
2012AP1119-CRNM State v. Tatum
2012AP1176 Margaret B. v. Co. of Milw.
2012AP1194-CR State v. Holifield
2012AP1445 State v. Harris
2012AP1457-CR State v. Stewart
2012AP1691-CR State v. Bohannon
2012AP1831-W Anderson v. Pugh
2012AP1988-CR State v. Maxcey
2012AP2009 State v. Moore
2012AP2081 J&E Inv. v. Div. of Hearings & Appeals
2012AP2255 Milwaukee Transport Serv. V. LIRC
2012AP2256 Pasko v. Milwaukee Co.
2012AP2257 Porth v. Milwaukee Co.
2012AP2571-CR State v. Tate
2012AP2737-CR State v. Pierson
2013AP637-39 State v. Shipria C.
2013AP1028-W Clincy v. Cir. Ct. for Milw. Co.
2013AP1251-OA Kaprelian v. Ford
2013AP1964-W Wingo v. COA, Dist. I

2010AP1090-CR Colyer v. Symdon

2011AP2838-CR/2012AP642-CR State v. Murray
2012AP1027-CRNM State v. Stathas
2012AP1528 Orlando Residence v. Nelson - Justice David T. Prosser, Jr. did not participate.

2012AP424 Kees v. N. States Power - Justice Ann Walsh Bradley did not participate.

2013AP40 Collett v. Richardson

2013AP83 Singerhouse v. Singerhouse

2012AP1871 State v. Cobbs
2012AP2508-W Washington v. Paquin
2012AP2758 Paskiewicz v. American Family Mut. Ins.

2012AP1170-CR State v. Copeland

St. Croix
2012AP661 Chase Home Finance v. Nasman

2013AP1373 Martens v. Vilas County

2012AP1068-CR State v. Peterson
2012AP1398-CR State v. Ballenger

2012AP1137-CR State v. Cherry - Justice David T. Prosser, Jr. did not participate.
2012AP1857 McNeal v. Schwarz

2010AP1622-CR State v. Otero
2011AP2881-CR State v. Lurvey
2011AP2930-CR State v. O'Haver
2012AP646/ State v. Przytarski 2012AP1413
2012AP912 Waterstone Bank v. American Family Mut. Ins.
2012AP1482 Mattfeld v. PHH Mort.
2012AP1800-CR State v. Bilton

2012AP1450-CR State v. Brown
2012AP1465 State v. Urbschat
2012AP2184 Molinski v. Chase Auto - Justice David T. Prosser, Jr. did not participate.

2011AP2797-98-CRNM State v. Blumberg

Tom Sheehan
Court Information Officer
(608) 261-6640

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