Wisconsin Supreme Court accepts seven new cases

Madison, Wisconsin - May 22, 2015

The Wisconsin Supreme Court has voted to accept seven new cases and has acted to deny review in a number of other cases. The case numbers, issues, and counties of origin of granted cases are listed below, as are hyperlinks to Court of Appeals’ decisions where available. The synopses provided are not complete analyses of the issues presented. More information about any particular case can be found on the Supreme Court and Court of Appeals Access website.

2013AP613/687 WI Pharmacal Co. v. Nebraska Cultures of CA
This insurance case arises out of claims that Nebraska Cultures of California, Inc., supplied the Wisconsin Pharmacal Company, LLC, an incorrect ingredient for incorporation into a dietary supplement to be labeled and sold by a major retailer.

The Supreme Court is expected to clarify the law regarding the application of the “occurrence” and “property damage” requirements in a CGL policy as it relates to claims seeking purely economic damages.

More specifically, the Supreme Court reviews the issues:

  • Is the supply of an ingredient that causes a recall of a product incorporating the contractually nonconforming ingredient a claim for “property damage”?
  • Does an action that alleges purely contract-based claims seeking purely economic damages as a result of a contractually nonconforming goods constitute an “occurrence”?
  • Does the Business Risk exclusion apply to negate coverage?

Some background: Wisconsin Pharmacal Company, LLC, was to supply a feminine health probiotic supplement to be sold under the label of a major retailer. The product called for Lactobacillus rhamnosus A as an ingredient. Pharmacal contacted Nutritional Manufacturing Services, LLC, to locate a supplier and to manufacture the supplement tablets. Nutritional Manufacturing contacted Nebraska Cultures to locate the rhamnosus, and Nebraska Cultures arranged with Jeneil Biotech, Inc. to supply it.

Pharmacal ordered a substantial quantity of rhamnosus tablets from Nutritional Manufacturing. Nutritional Manufacturing purchased the rhamnosus from Nebraska Cultures to manufacture the tablets, and the certificate of analysis representing that the probiotic was in fact rhamnosus “appeared to have originated” from Jeneil. Nutritional Manufacturing used the probiotic to manufacture the chewable tablets for Pharmacal, which in turn sold the tablets to the retailer as part of the daily probiotic feminine supplement. The retailer later informed Pharmacal that the supplement tablets did not in fact contain rhamnosus but instead contained Lactobacillus. Pharmacal confirmed this fact through independent testing. The retailer recalled Pharmacal’s daily probiotic feminine supplement.

Nutritional Manufacturing assigned its claims to Pharmacal. Pharmacal sued Nebraska Cultures and its insurer, Evanston Insurance Co., and Jeneil, and its insurer, The Netherlands Insurance Co. Pharmacal alleged various tort and contract causes of action.

In response to motions to dismiss, the circuit court dismissed all of Pharmacal’s causes of action against Nebraska Cultures; all of Pharmacal’s causes of action against Jeneil; all of Nutritional Manufacturing’s causes of action against Jeneil; and Nutritional Manufacturing’s tort and statutory causes of action against Nebraska Cultures. This left Nutritional Manufacturing’s contract claims against Nebraska Cultures, which included claims for breach of contract, breach of duty of good faith and fair dealing, breach of implied warranty of merchantability, breach of implied warranty of fitness for a particular purpose, breach of implied warranty under the Uniform Commercial Code, and Nebraska Culture’s and Jeneil’s cross-claims for contribution or indemnification.

The insurers successfully moved to bifurcate and stay proceedings pending a coverage decision. The insurers then moved for summary judgment on coverage. The circuit court deferred deciding the summary judgment motion and gave the parties 60 days to conduct discovery. Ultimately, the circuit court did grant summary judgment in favor of the insurers.

The circuit court found there was no coverage. It concluded there was no damage to property other than the integrated product into which the mistaken ingredient had been incorporated and that this did not constitute property damage other than to the product itself. Accordingly, the circuit court found there was no “occurrence.”

The lower court went on to say that even if there were an initial grant of coverage, the impaired property and recall exclusions in the policies would preclude coverage. Finally, the lower court found that “under the facts of this particular case . . . there’s no duty to defend.”

Jeneil and Nebraska Cultures appealed. The Court of Appeals, with Judge Paul F. Reilly dissenting, reversed and remanded. Nebraska Cultures’ insurers, Evanston Insurance Company and The Netherlands Insurance Company, jointly appealed to the Supreme Court. From Ozaukee County.

2014AP108-CR State v. Matalonis
This case examines whether a police search of the defendant’s home was justified under one of two exceptions to the general rule that warrantless searches and seizures violate the Fourth Amendment.

More specifically, the Supreme Court reviews:

  • Whether under the community caretaker doctrine, the officers acted reasonably when, while lawfully inside defendant Charles Matalonis’ home, they conducted a warrantless search behind a locked door that had blood on it because of their belief that additional persons may have been injured during a battery that had occurred inside the home.
  • Whether under the protective sweep doctrine, officers had a reasonable and articulable suspicion that justified their warrantless sweep of a locked room inside Matalonis’ home for people who may have posed a danger to them as they investigated a battery that occurred inside the home.

Matalonis was convicted on one count of manufacturing or delivering THC. The circuit court had denied a suppression motion, concluding that the search of his home was justified under the community caretaker exception. The Court of Appeals concluded that the officers’ search did not fall within the community caretaker exception.

Some background: A Kenosha police officer testified at the suppression hearing that in the early morning hours of Jan. 15, 2012, he was dispatched for a medical call at a residence on 45th Street in Kenosha and made contact with Antony Matalonis, the defendant’s brother. The officer described Antony as appearing highly intoxicated and battered with the whole right side of his body covered in blood. Antony initially said he had been beat up by four different groups of people outside a bar. He later said he had been beat up by four people outside the bar.

While Antony was taken to the hospital by ambulance, the officer said he followed a trail of blood spatters in the snow outside to the side door of a residence located on Fifth Avenue. Officer the officer testified that when he reached the Fifth Avenue residence he heard two loud bangs coming from inside.

He testified he and another police officer knocked on the door. The defendant answered the door and appeared out of breath but did not appear to be injured. Police told the defendant they had found an injured individual a few houses away, had followed a blood trail to the defendant’s residence, and that they needed to enter the residence to make sure no one was injured inside. Police testified the defendant said he had gotten into a fight with his brother and that he lived alone.

The officer testified the defendant let them into the residence and upon entering conducted a protective sweep to make sure no one else was inside who needed medical attention. After finding a few drops of blood here and there, the officer said he found blood smeared all along the wall leading up the stairs to the second level. Police found blood all over the handrail and glass shards from a broken mirror on the floor.

The officer testified that upstairs in a living area at the top of the stairs he observed various pipes and other smoking utensils used to smoke marijuana. The officer also testified he observed a door secured with a deadbolt with blood spatters on it. On cross-examination he said he also observed the smell of marijuana and the sound of a running fan coming from inside the locked room.

The officer testified that he continued past the locked door into the bathroom to make sure no one was in there and he observed a water bong in the bathroom. He said he then returned to the first level of the house where he asked the defendant where the key to the locked door was. The officer testified he informed the defendant he needed to make sure no one was injured inside the locked room and said if the defendant did not provide the key he would kick the door in. The officer testified that the defendant said the room was full of security cameras for the house.

The officer again asked the defendant for the key to the room, at which point the defendant said he had marijuana plants growing inside the room. The officer obtained the key and upon entering the room found a large marijuana plant growing. The defendant admitted the marijuana plant was his but refused to talk about it further. The officer then asked the defendant about his fight with Antony, at which point the defendant described the fight in more detail.

Following the denial of the motion to suppress, the defendant pled no contest to the manufacture or delivery of THC. He appealed, arguing that the circuit court erred in denying his suppression motion. The Court of Appeals agreed and reversed.

The Court of Appeals concluded that the officers’ search did not fall within the community caretaker exception. The state argued that the officers were not required to conclude that Antony was the only person injured and that it was reasonable for the officers to believe another injured person was inside the defendant’s home. The Court of Appeals said the absence of contrary evidence alone does not provide an objectively reasonable basis.

Court of Appeals’ Judge Brian W. Blanchard dissented. Blanchard concluded that the officers did have an objectively reasonable basis to believe that a warrantless, unconsented search of the residence for other injured persons, including the search behind a locked door with blood droplets on it, was necessary to address a serious safety concern and the public interest in the search outweighed the intrusion on the defendant’s privacy. From Kenosha County.

2014AP1938 New Richmond News v. City of New Richmond
This open records case, which bypasses the Court of Appeals, involves a dispute between the New Richmond News and the city of New Richmond over redacted information in police reports. A decision by the Supreme Court is expected to affect news organizations and law enforcement agencies statewide.

Some background: The three police reports at issue in this case include two uniform accident reports prepared by officers in compliance with Wis. Stat. § 347.70, and one incident report regarding theft of gasoline. The city of New Richmond Police Department produced the reports in response to the newspaper’s public records request but first removed all identifying information concerning the motor vehicle drivers, owners, and witnesses from the accident reports and all identifying information concerning the theft complainant, suspect, and one other person from the incident report.

The city’s response letter said that the federal Driver’s Privacy Protection Act (DPPA) requires it to redact all personal information it obtained from or was verified with the state Department of Motor Vehicles (DMV).

The DPPA was passed to address safety and security concerns associated with excessive disclosures of personal information held by the state in motor vehicle records. Senne v. Village of Palatine, 695 F.3d 597, 607 (7th Cir. 2012). The DPPA also prohibits “any person” from knowingly obtaining or disclosing personal information from a motor vehicle record for any use not permitted. In addition, it “shall be unlawful for any person to make false representation to obtain any personal information from an individual’s motor vehicle record.”

The DPPA includes 14 exceptions which identify circumstances under which personal information may be disclosed. The newspaper relies on three exceptions in this case:

  1. For use by any government agency, including any court or law enforcement agency, in carrying out its functions, or any private person or entity acting on behalf of a Federal, State, or local agency in carrying out its functions.
  2. For use in connection with matters of motor vehicle or driver safety and theft. . . .
    . . . .
  3. For any other use specifically authorized under the law of the State that holds the record, if such use is related to the operation of a motor vehicle or public safety.

18 U.S.C. § 1721(b)(1), (2) and (14).

The Newspaper filed an enforcement action under Wisconsin’s public records law to compel the city to disclose unredacted accident and incident reports held by the police department, which generated those reports using personal information procured from the State Department of Motor Vehicles (DMV).

The circuit court granted judgment on the pleadings to the newspaper following briefing and argument. The circuit court concluded that the DPPA does not prohibit the disclosure of law enforcement agency reports containing personal information when that is required by state law.

The lower court found the 7th Circuit’s decision in Senne distinguishable since that case did not address the application of the DPPA in connection with a valid request made under a state’s public records law.

The circuit court here held that all three records in question fell within exceptions and found that the 14th exception to the DPPA “provides a broad exception for uses specifically authorized under ‘the law of the state that holds the record, if such use is related to the operation of a motor vehicle or public safety’.” Finally, the circuit court held that “two of the three requested reports are uniform traffic accident reports, which do not fit the statutory definition of ‘personal information.’”

The city and the newspaper jointly petitioned the Supreme Court to take the case and bypass the Court of Appeals. The joint bypass petition says:

This appeal presents only questions of law, and those questions recur daily throughout Wisconsin. Law enforcement agency reports are routinely and frequently requested by citizens, insurers and other businesses, as well as journalists under the public records law and Wis. Stat. § 346.70(4)(f). The redaction of these records based on uncertainty over the DPPA’s application and the potential for municipal liability creates expense for those records custodians who agree with the City’s interpretation and frustrates requesters in those jurisdictions. By granting this bypass petition, this court can definitively resolve this growing statewide controversy. Pet. at 15-16.

The city’s appellate brief frames the issue as follows:

May law enforcement redact “personal information” or “highly restricted personal information” from motor vehicle records in response to a public records request where the requester does not specify an applicable exception to access under the federal Driver’s Privacy Protection Act[], 18 U.S.C. § 2721(a)?

The newspaper’s response brief states the issue as follows:

“Must” the City redact personal information from law enforcement reports “under the federal Driver’s Privacy Protection Act,” [] based upon federal preemption? See Wis. Stat. Sec. 19.36(1)(“Any record which is specifically exempted from disclosure by state or federal law or authorized to be exempted from disclosure by state law is exempt from disclosure under s. 19.35(1) . . . .”)

From St. Croix County.

2013AP2323 Johnson v. Cintas Corp. No. 2
This insurance case arising from an auto accident examines whether a party is entitled to interest under Wis. Stat. § 807.01(4) at the rate in effect at the time judgment is entered or at the rate in effect when an offer of settlement was made.

Some background: In July 2006, Robert Johnson was a passenger in his own vehicle when his friend, Marvin Crandall, caused an accident that injured them both. Both Johnson and Crandall were drunk at the time of the accident. Johnson’s automobile insurance was provided by his employer, Cintas Corporation No. 2, and Crandall, as a permissive driver, qualified as an insured under the policy. Johnson sued Cintas 2 to recover insurance benefits for the injuries he received due to Crandall’s negligent driving.

In 2008, Johnson filed a $300,000 offer of settlement, but the parties did not settle. In 2013, a jury awarded Johnson over $400,000 in damages and found that he was 20 percent contributory negligent. (The delay between the settlement and judgment is in part because Johnson’s summons and complaint incorrectly named Cintas 2’s parent corporation).

Because the actual damages award exceeded the amount of Johnson’s 2008 settlement offer, Johnson sought interest on the judgment from the time the offer of settlement was made at 12 percent, pursuant to Wis. Stat. § 807.01(4) (2007-08). The circuit court, however, applied a lower rate of interest applicable under an amended version of the statute that came into force in December 2011. See § 807.01(4) (2011-12); 2011 Wis. Act 69. The lower rate was 4.25 percent or 1 percent plus prime.

Both parties appealed. Cintas argued that the jury was not “fully and fairly” instructed about negligence law and that an indirect reference to Crandall’s criminal record marred the trial. Johnson cross-appealed on the issue of whether the reduced interest rate under the 2011 amendment applies when the offer of settlement preceded the law change.

Questions about negligence and jury instructions relating to criminal behavior were addressed in earlier phases of the case, but are not primary issues before the Supreme Court.

The Court of Appeals agreed with Johnson that retroactive application of the lower interest rate applicable to a judgment under § 807.01(4) was unconstitutional. The Court of Appeals ruled that the circuit court should have applied the 12-percent rate in force at the time of the 2008 offer of settlement. The court ruled there were no other procedural errors, leading Cintas to appeal to the Supreme Court.

Cintas asserts that in 2011, the Wisconsin Legislature amended § 807.01(4) to reduce the applicable interest rate awarded to a party who makes an offer of settlement which is not accepted but later receives a judgment that is equal to or greater than that offer from 12 percent to “1 plus prime” rate.

According to Cintas, the fact that the new statute establishes an adjustable rate of interest is important because the legislature specifically stated that the applicable interest rate is tied to the date of the judgment and not some earlier date. By contrast, the Court of Appeals’ decision held that a party has a vested right to interest from the date the offer of settlement is made, and ruled that applying a rate in effect at the time judgment is entered (which differs from the rate in effect at the time of the offer of settlement) is unconstitutional. From Kenosha County

2014AP2431 St. Croix Co. DHHS v. Michael D.
This case involves the interpretation of the Supreme Court’s decision in Waukesha County v. Steven H., 2000 WI 28, 233 Wis. 2d 344, 607 N.W.2d 607 and the interplay of the child in need of protection or services (CHIPS) and termination of parental rights (TPR) notice requirements necessary to properly pursue a TPR proceeding.

The Supreme Court reviews whether a CHIPS-based TPR action is barred if the last out-of-home placement order does not comply with the written notice provisions of Wis. Stat. § 48.356, a section of the statutes entitled “duty of a court to warn.” The law requires that when a child is placed outside the home, his or her parents must be provided oral and written notice describing any applicable grounds for termination of parental rights as well as the conditions necessary for the child to be returned to the home.

Some background: Matthew D. was born in March of 2009. His mother struggles with “cognitive and physical limitations as well as ongoing health concerns” that affect her ability to provide appropriate supervision, care and safety of the child on a consistent basis. Eight days after his birth, Matthew D. was removed into foster care. Less than two months later, he was returned to the mother.

On June 12, 2009, Matthew D. was deemed a CHIPS; the court allowed Matthew D. to remain with the mother, subject to a list of six conditions. The circuit court granted several extensions of this original CHIPS dispositional order.

On Aug. 2, 2011, Matthew D. was removed from his mother’s home and placed in a foster home and the court issued a dispositional order for this change of placement. The Aug. 2 dispositional order included the court’s finding that placement in the mother’s home at that time was contrary to Matthew D.’s welfare because of the mother’s “inability to provide appropriate care and supervision, lack of supervision, as well as not capable of maintaining an appropriate environment and could not get him if he was in danger.” The court found the county had made reasonable efforts to prevent removal.

The dispositional order was revised, following court hearings, on Oct. 5, 2011 and again on Oct. 11, 2011. The Oct. 11, 2011 revision order explicitly incorporated 14 specific conditions for Matthew D.’s return. The Oct. 11 order also contained a “Notice Concerning Grounds to Terminate Parental Rights,” signed by the mother on Oct. 5. That notice specifically warned the mother that her parental rights to Matthew D. could be terminated against her will, based on the ground of continuing CHIPS. The notice also stated the court had informed the mother orally of the applicable grounds for termination of parental rights, and that she had received a copy of the notice.

The Oct. 11 revision order was the first and only written order that incorporated a written warning of all the applicable grounds for which the mother’s parental rights could be terminated and the conditions she must meet for Matthew D.’s return, as required by Wis. Stat. §§ 48.356(2) and 48.415(2)(a)1.

On June 18, 2013, the County filed a petition to involuntarily terminate the mother’s parental rights to Matthew D., alleging continuing CHIPS, as well as a failure to assume parental responsibility. It is undisputed that between the original dispositional order removing Matthew D. from the mother’s home on Aug. 2, 2011 and the filing of the TPR petition on June 18, 2013, the court conducted multiple hearings and issued multiple orders in the CHIPs proceeding. These included the Oct. 11 revised order, as well as two subsequent extension orders filed Dec. 19, 2011 and Sept. 11, 2012, and permanency plan orders filed June 22, 2012 and June 5, 2013.

The court conducted a fact-finding hearing on the TPR petition in December 2013. The mother moved to dismiss, arguing the County had not proven either ground for termination, and (relevant here) asserting the written TPR warnings had not been provided to the mother in the last extension order filed Sept. 11, 2012, as required by § 48.356.

The circuit court denied the mother’s motion. The court detailed the entire procedural history of the case and determined “that the notice given to (the mother) was sufficient under § 48.356(2) to inform her that her parental rights were in danger of being terminated and advising her of the conditions necessary for the return of the child.”

The circuit court found grounds to terminate the mother’s parental rights based on CHIPS, but found the mother did not fail to assume parental responsibility. The court subsequently issued a permanency order on May 15, 2014, noting the mother “continues to struggle with cognitive and physical limitations” that affect her ability to provide the appropriate supervision, care and safety of the child on a consistent basis.

The court terminated the mother’s parental rights on May 23, 2014. The mother appealed, and the Court of Appeals reversed.

The Court of Appeals asserts that the oral warnings required by § 48.356(1) were insufficient here. There were seven hearings that required oral warnings of the possibility of TPR and the conditions for return. The mother received oral warnings at only three of those hearings, most recently at the Sept. 6, 2012 extension hearing. She was not provided oral warnings at the subsequent June 5, 2013 permanency plan hearing.

The Court of Appeals, citing Steven H., ruled that failure to include the warnings in the last order meant the TPR had to be dismissed. The county challenges the decision, asserting sufficient notice was provided.

A decision by the Supreme Court is expected to clarify whether Steven H. contains a categorical requirement that the last order contain the necessary notice requirements. From St. Croix County.

2014AP1048 Winnebago Co. v. Christopher S.
This certification examines whether Wis. Stat. § 51.20(1)(ar) is facially unconstitutional on substantive due process grounds because it does not require that a court find an inmate dangerous prior to ordering the inmate civilly committed for treatment and involuntary medication.

Some background: This case arises out of the involuntary commitment and medication of Christopher S., who has been diagnosed as psychotic and paranoid and “schizophrenic paranoid type.” At the time the petition for commitment was filed, Christopher was an inmate in the Wisconsin prison system after being sentenced to 20 years for mayhem. The conviction occurred in 2005.

In July of 2012, Christopher was transferred from Fox Lake Correctional Institution to the Wisconsin Resource Center (WRC) after he complained that a cellmate had sexually assaulted him and was trying to establish sexual dominance. Christopher also accused the cellmate of planning to kill him. At the time he was admitted to WRC, Christopher was not prescribed any medication.

In September 2012, Christopher refused an order to eat in the day room and began to posture and loudly indicate that the officer giving him the order had raped him while he was in the military. Christopher was agitated and was moved to segregation to help him gain control of his behavior. In November of 2012, a petition was filed seeking to commit Christopher under § 51.20(1)(ar).

A one-day jury trial took place on Dec. 21, 2012. Two doctors testified for Winnebago County. The jury found Christopher was: (1) mentally ill; (2) a proper subject for treatment and in need of treatment; (3) an inmate in a Wisconsin state prison; (4) appropriate less restrictive forms of treatment were attempted and unsuccessful; and (5) he was fully informed about this treatment needs, the mental health services available to him and his rights and he had an opportunity to discuss them with a licensed physician.

The circuit court entered an order committing Christopher for six months at the WRC along with an order for involuntary medication and treatment. The six-month commitment was extended for another year in June of 2013, and the order for involuntary medication was also extended. The commitment and medication orders were extended again in June of 2014.

After the June 2013 orders were entered, Christopher’s counsel filed a motion that principally argued that § 51.20(1)(ar) was facially unconstitutional and unconstitutional as applied. It also argued, in the alternative, that Christopher’s trial counsel was ineffective and asked for a Machner hearing. State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979). The motion did not make any specific argument with respect to the involuntary medication order but merely asked the trial court to vacate it.

Hearings on the motion were held in February and April of 2014. The circuit court did not reach the constitutional question but instead concluded the question was moot. It also concluded that the contention that Christopher did not have effective assistance of counsel was not “even . . . an argument.” No ruling was made with respect to the medication order.

Christopher appealed, leading to this certification from the District II Court of Appeals. The county and state argue that the statute is constitutional without requiring a showing of dangerousness.

District II says with regard to treatment of an inmate with psychotropic drugs against his or her will, this appears to be contrary to the U.S. Supreme Court’s decision in Washington v. Harper, 494 U.S. 210 (1990) and is likely also contrary to this court’s decision in State v. Wood, 2010 WI 17, 323 Wis. 2d 321, 780 N.W.2d 663.

A decision by the Supreme Court may clarify whether substantive due process requires a showing of dangerousness before an inmate may be civilly committed for treatment and medication against his or her will. From Winnebago County.

2014AP1880 United Food v. Hormel Corp.
This certification arises from a class action lawsuit filed by about 330 hourly union workers or former workers at a Hormel Corp. plant in Beloit, Wis. The Supreme Court examines whether Wisconsin law requires that the workers be paid for the time it takes to put on and take off gear and clothing required for their work.

Some background: The workers allege that the gear and clothing required to be worn during work must be donned and doffed while they are “clocked out” and not being paid. They also contend that because the gear may not be worn outside the Hormel plant, Hormel’s policies have caused members of the class not to be paid for hours worked. Additionally, the workers contend its members regularly “work” more than 40 hours a week because of these policies and are not paid for overtime.

After a bench trial, the circuit court issued a lengthy written opinion and order holding that Wisconsin law required Hormel to compensate its workers for the time they spent donning and doffing the clothing and items they wear. In doing so, the circuit court relied on the Court of Appeals’ decision in Weissman v. Tyson Prepared Foods, 2013 WI App 109, 350 Wis. 2d 380, 838 N.W.2d 502.

The circuit court also held that workers were entitled to compensation for any meal periods during which they actually left the Beloit facility, and the court held that Hormel failed to sustain its burden of establishing that any of the time periods at issue were rendered non-compensable by the doctrine of de minimus non curat lex, or “the law does not concern itself with trifles,” according to Black’s Law Dictionary.

Hormel appealed, leading to this certification by the District IV Court of Appeals. Hormel argues that the circuit court erred when it concluded that donning and doffing clothing was “integral” to a principal activity. Hormel further argues that the donning and doffing activities are de minimus and therefore not compensable under Wisconsin law. (The de minimus doctrine allows employers to disregard otherwise compensable work when only a few seconds or a few minutes of work beyond scheduled work hours are in dispute.)

The Supreme Court reviews two issues:

  • Is the donning and doffing of clothing that is required by the employer, occurs on the employer’s premises, and benefits the employer “integral” and “indispensable” to the principal work activities of the employees——and therefore compensable under Chapters 103 and 109 of the Wisconsin Statutes and Wis. Admin. Code § DWD 272.12 (Feb. 2009)——even if the employees’ tasks could be performed without the required clothing and equipment?
  • Even if donning and doffing required work clothing and equipment is deemed “integral” and “indispensable” to the employees’ work activities, is it nonetheless rendered non-compensable by the doctrine of de minimus non curat lex?

The Court of Appeals determined the first issue appears to be controlled by its decision in Weissman. Hormel advances several reasons it believes that Weissman was erroneously decided. The Court of Appeals also noted that the Wisconsin Supreme Court previously granted a petition for review in Weissman, but did not issue a decision on the merits because the parties settled the
case. The second issue—whether to treat the activity as de minimis—was noted but not addressed in Weissman. From Rock 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:

2014AP645-NM State v. Fleming

2014AP10-CR State v. Perez
2014AP478-CR State v. Thomas
2014AP590-CRNM State v. Klyce
2014AP800-CR State v. McIntyre
2014AP886 State v. Marshall

2013AP2332-NM State v. Daniels

2014AP2100 Co. of Calumet v. Doljeck - Justice David T. Prosser, Jr. did not participate.

2013AP2248-CR State v. Baker
2013AP2518 State Farm Mut. Auto. Ins. Co. v. Hunt - Justice Patience Drake Roggensack dissents.

2013AP881/916 Peterson v. Bjornson
2013AP2430-32-CR State v. Robinson
2013AP2440 Planning Parenthood of WI v. Van Hollen
2013AP2591 Kuranda v. Hamblin
2014AP135 Disability Rights WI v. UW Hosp. - Justice Ann Walsh Bradley did not participate.
2014AP565-CR State v. Herling
2014AP684 Furillo v. WI ETF Board
2014AP1271 Kaether v. Bjornson
2014AP2076 Dane Co. DHS v. Hershula B.
2015AP8-W Singleton v. Smith
2015AP710-W Burke v. Cir. Ct. Dane Co.

2014AP1407-CR State v. White
2014AP2333-W Hollenbeck v. Clements

Eau Claire
2014AP389-CRNM State v. Hannah

2014AP628 CitiFinancial, Inc. v. Wunderlin - Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley dissent.

2014AP146-48-CR State v. Trejo
2014AP357-CRNM State v. Richards
2014AP668-CR State v. Jones
2014AP1445-W Weiss v. Bartow

La Crosse
2014AP33-CR State v. Wedekind

2014AP578 Selenske v. Est. of Selenske

2012AP2676/2013AP1489 Woodford State Bank v. Zahran
2014AP366-CR State v. Koenig

2014AP76-CR State v. Grandison

2013AP2535-CR State v. Samsa
2014AP512 State v. Kline

2014AP962-CR State v. Shepard

2013AP350-CR State v. Bridges
2013AP1100-CR State v. Kuchinskas - Chief Justice Patience Drake Roggensack did not participate.
2013AP1349 Davis v. Douma
2013AP1637-CRNM State v. Wimberly
2013AP2240-CR State v. Rodthong - Chief Justice Patience Drake Roggensack did not participate.
2013AP2474 Community Bank & Trust v. Berggren
2013AP2517-CRNM State v. Wilkinson
2013AP2788 JP Morgan Chase Bank v. Braunt
2013AP2873-CR State v. Benson
2014AP351 Mueller v. Harry Kaufmann Motorcars - Justice Patience Drake Roggensack dissents.
2014AP354-CR State v. Elverman
2014AP378-CR State v. Ware
2014AP484-85 State v. Haywood
2014AP539-W Price v. Douma
2014AP543-CR State v. Thomas
2014AP616 State v. Moore
2014AP631-32-CRNM State v. Harris
2014AP856-62 State v. Clements
2014AP1141-NM State v. Dexter A.
2014AP1539-41 State v. Michelle M.
2014AP1621 State v. Ester M.
2014AP1652-CR State v. Kyle
2014AP1714 State v. Tamara B.
2014AP2106-W Thomas v. Hepp
2014AP2642-W Townsend v. Richardson
2015AP368-W Kramschuster v. COA, Dist. I

2013AP2541-CR State v. Riker
2014AP691-CR State v. Roberson
2014AP1235-CR State v. Chase
2014AP1672-73 Racine Co. HDS v. Latasia D.M. - Justice David T. Prosser, Jr. did not participate.

2014AP1041-CR State v. Fuchs

2013AP2387-CR State v. Adams

St. Croix
2013AP2552-CRNM State v. Tucker
2013AP2828 Murr v. State
2014AP49 Betz v. West Bend Mut. Ins. Co.
2014AP2403-W Cose v. Richardson

2013AP2080 Shulka v. Sikraji - Justice David T. Prosser, Jr. dissents.
2013AP2496 Colonial Savings v. Gens
2013AP2655-CR State v. Babcock
2014AP571-CR State v. Villarreal
2014AP588 State v. Franklin
2015AP627-W Franklin v. Picknell

2014AP58-CR State v. Vanweelden
2014AP707-CR State v. Long
2014AP2838-W Cherry v. Foster - Justice David T. Prosser, Jr. did not participate.

2013AP1114 State v. Wolfe
2013AP1618-CR State v. Wold
2013AP2402 Bank of Am. v. Brown
2014AP219 State v. Ziegler
2014AP318 Ward v. Ward
2014AP356-CR State v. Imgram
2014AP2549-W Holman v. Douma
2014AP2736-W Otero v. Richardson

2013AP2464 State v. Scheel
2014AP584-CR State v. Selk
2015AP369-W Blunt v. Smith

2012AP1570-CR State v. Tisland

Tom Sheehan
Court Information Officer
(608) 261-6640

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