Wisconsin Supreme Court accepts five new cases

Madison, Wisconsin - July 8, 2015

The Wisconsin Supreme Court has voted to accept five 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. Visit the Supreme Court and Court of Appeals Access website for more information about the status of any particular case.

2014AP1283 In re the marriage of:  Nancy M. Meister and Jay E. Meister v. Nancy M. Meister
This case examines whether the grandparent visitation statute requires a grandmother to show she has a relationship with her grandchildren similar to a parent-child relationship before the court can grant the grandmother visitation rights.

Some background: After Nancy M. and Jay E. Meisters’ divorce, the children’s paternal grandmother filed a motion to establish visitation rights for a grandparent under § 767.43(1), Stats.  The family court commissioner granted the motion.  Nancy Meister sought de novo review.  The circuit court conducted two hearings at which it heard testimony from the grandmother as well as oral argument by counsel for the parties and children’s guardian ad litem.  While the circuit court found the grandmother’s relationship with the children was “admirable and beneficial,” it concluded it was not similar to a parent-child relationship because it was of too-short duration and frequency and because the children had not resided with the grandmother for an extended period of time.  The circuit court concluded the grandmother was not eligible to receive visitation rights, and it vacated the family court commissioner’s order. The minor children appealed by their Guardian Ad Litem, and the Court of Appeals affirmed.

The Court of Appeals said:

[R]egardless whether the circuit court correctly applied the “resided with for an extended period” factor, the court also relied on other factors that in and of themselves sufficed to support its decision.  Specifically, the circuit court also considered whether the grandmother had assumed “‘significant responsibilities’ for the [children’s] care, education and development,” and made the additional factual finding that the grandmother’s relationship was “of too short duration and frequency to be legally ‘significant.’”  We understand the court to be concluding that whatever responsibilities the grandmother assumed for the children’s care, education and development, they were not sufficiently significant to establish the existence of a relationship similar to a parent-child relationship.

The children argued that the circuit court applied the wrong legal standard when it required that a grandmother must show she had a relationship similar to a parent-child relationship in order to receive visitation rights with her grandchildren.  The Court of Appeals noted that § 767.43(1), provides:

[U]pon petition by a grandparent, greatgrandparent, stepparent or person who has maintained a relationship similar to a parent-child relationship with the child, the court may grant reasonable visitation rights to that person if the parents have notice of the hearing and if the court determines that visitation is in the best interest of the child.

The Court of Appeals noted that it was bound by its previous decision in Rogers v. Rogers, 2007 WI App 50, 300 Wis. 2d 532, 731 N.W.2d 347, which held that the statute requires that grandparents petitioning under § 767.43(1) have a relationship similar to a parent-child relationship in order to be eligible for visitation rights.

The children argued that if the circuit court properly required a parent-child relationship, the circuit court still applied the wrong legal standard when it required that to make that showing the grandmother must have resided with the grandchildren for an extended period of time.

From Jefferson County.

2013AP1228-CR State v. Smith
This criminal case examines whether the Court of Appeals erroneously engaged in fact finding, as the state contends, or whether it engaged in error correction as the defendant contends.

Some background: In October of 2009, a jury found Jimmie Lee Smith guilty of one count of second-degree sexual assault.  He was sentenced to 25 years of initial confinement and 15 years of extended supervision.  At the sentencing hearing, he made a rambling statement, which the court found irrelevant and nearly impossible to follow.

In June of 2010, post-conviction counsel filed a motion to determine the defendant’s competency to assist in post-conviction proceedings.

In August of 2010, the defendant appeared before the postconviction court via video.  The post-conviction court found Smith incompetent to assist his post-conviction counsel or understand post-conviction proceedings.  The court found it reasonably certain the defendant could regain competency if he received necessary treatment.  A review hearing was scheduled for December of 2010.

Before the December 2010 hearing, Dr. John Pankiewicz of the Wisconsin Forensic Unit conducted a three-month review of competency restoration efforts on the defendant.  Dr. Pankiewicz said that although the defendant had made some progress he continued to suffer from delusions that would significantly affect his capacity to communicate with counsel or make rational decisions about proceedings.

At a competency hearing held in March of 2011, the post-conviction court found the defendant remained incompetent and that he was unlikely to regain competence in a reasonable time.  The court appointed a guardian ad litem for purposes of post-conviction relief.

In September of 2011, post-conviction counsel filed a motion to vacate the judgment of conviction on the ground that the defendant was not mentally competent at the time of his trial or sentencing. The motion attached a report from Dr. Deborah Collins of the Wisconsin Forensic Unit dated Sept. 16, 2011, in which Collins said the defendant had a well documented history of mental illness dating back to at least 1993; that he had periods of incarceration over the years that provided regular contact with Department of Corrections (DOC) clinical staff and during that time he was diagnosed with either a delusion disorder or schizophrenia.

Both doctors testified at an evidentiary hearing. Collins concluded that the defendant had been actively symptomatic of a psychiatric disorder in early 2009, months before his trial and that all of the factors described in her report weighed in favor of the conclusion he had been incompetent at that time. Dr. Pankiewicz said an evaluation of the “whole picture” led to the conclusion that the defendant was not competent at trial or at sentencing. Pankiewicz rejected the possibility that the defendant was faking or exaggerating symptoms of mental illness.

The post-conviction court denied the post-conviction motion on the grounds that defense counsel’s belief that the defendant had been competent at trial and sentencing was more persuasive than the two experts’ post-conviction evaluations because neither expert had interviewed the defendant at trial or at sentencing.  The postconviction court noted that defense counsel and the trial court did not raise competency concerns.  The post-conviction court found the defendant was competent both at the trial and at sentencing.  The defendant appealed. The Court of Appeals reversed and remanded for a new trial.

The Court of Appeals found the post-conviction court erred by weighing more heavily the uninformed competence opinions of defense counsel and the trial court—who knew nothing of Smith’s extensive mental health history, the DOC records, the jail records or the two experts’ opinions—and discounted the experts’ evaluations. 

The state raises three issues for Supreme Court review:

The Wisconsin Constitution limits the Court of Appeals’ jurisdiction to appellate jurisdiction, which this court has held does not include fact finding.  Here, the Court of Appeals found facts that the circuit court rejected.  Did the Court of Appeals exceed its constitutional authority by engaging in fact finding?

The Court of Appeals accepts a circuit court’s reasonable inference from facts and only disturbs clearly erroneous decisions.  Here, the circuit court reasonably found Smith’s attorney and the trial court more credible than competency evaluations conducted six months and one year after sentencing, but the Court of Appeals disagreed by drawing inferences the circuit court rejected.  Did the Court of Appeals impermissibly weigh the evidence rather than defer to the circuit court?

No person who lacks substantial mental capacity to understand the proceedings or assist in his own defense may be tried, convicted or sentenced for the commission of an offense so long as the incapacity endures.  The circuit court heard testimony from two psychiatrists and Smith’s attorney and concluded that Smith was competent at the time of his trial.  Did the circuit court erroneously exercise its discretion?

From Milwaukee County. 

2013AP416 Coyne v. Walker
This case involves a dispute between a group of parents whose children attend public schools and Gov. Scott Walker’s administration over rulemaking authority of the Superintendent of Public Instruction (SPI).

More specifically, the Supreme Court reviews whether the delegation of legislative rulemaking power to the governor under 2011 Act 21 is unconstitutional as applied to the superintendent, an independently elected constitutional officer. 

Some background: Act 21 was enacted on May 23, 2011 and took effect on June 8, 2011. Act 21 requires that all state agencies, as well as the SPI, submit proposed scope statements to the governor for approval.  See Wis. Stat. § 227.135.  The rulemaking process begins with drafting and publishing a “scope” statement that explains what a proposed rule will cover, along with other information required by statute.  See § 227.135.  Once the scope statement is published, the agency prepares a draft rule.  See Wis. Stat. § 227.14.

Before Act 21, the promulgating agency may not begin drafting a rule until the agency has received approval of the scope statement by the head of the agency proposing to promulgate the rule, and until the approved scope statement is published.  See § 227.135.  After Act 21, an additional approval is required at this stage; the Governor must also approve a scope statement.  See § 227.135(2).  Whether or not to approve a scope statement is a matter for the governor’s discretion. 

Both before and after Act 21, an agency prepares a draft of a proposed rule and, thereafter, the draft rule is submitted to the joint legislative council, where the council staff reviews the proposed rule to ensure that the proposed rule complies with both procedural and substantive requirements.  See Wis. Stat. § 227.15. 

The promulgating agency must then provide notice of and a public hearing on the proposed rule.  Public comment may cause the agency to prepare successive drafts, which require additional notice and public hearings.  See Wis. Stat. §§ 227.16-18.  When the proposed rule is in final form, it is subject to further review, including the preparation of an economic impact analysis.  See Wis. Stat. § 227.137.

The plaintiffs in this case are parents of minor children who receive public education and other services from public schools, public school teachers, and/or taxpayers. The plaintiffs include Peggy Z. Coyne, Mary Bell, Mark W. Taylor, Corey Otis, Marie K. Stangel, Jane Weidner, and Kristin A. Voss. They filed a complaint in Dane County Circuit Court on October 11, 2011, seeking a declaratory judgment that Act 21 unconstitutionally infringes on the Superintendent’s powers under Art. X of the Wisconsin Constitution because it requires the Superintendent to obtain the Governor’s approval for any proposed rule. The Superintendent agrees with plaintiffs.  

The defendants are Walker and now-former Secretary of the state Department of Administration, Michael Huebsch. They unsuccessfully moved to dismiss the case for lack of standing. Both parties then moved for summary judgment. On Nov. 7, 2012, the circuit court issued a decision and order holding that Act 21, as applied to the rulemaking activities of the Superintendent, was unconstitutional and void.

The defendants appealed, and the Court of Appeals affirmed, upholding the circuit court’s order.

The Court of Appeals’ decision relies to a great extent on Thompson v. Craney, 199 Wis. 2d 674, 546 N.W.2d 123 (1996), which involved a challenge to a legislative enactment, Act 27, during the administration of former Gov. Tommy G. Thompson.

In Thompson, the Wisconsin Supreme Court ruled unanimously that the Wisconsin Legislature’s attempt to give the State Superintendent authority to supervise public instruction to others who were not subordinate to the Superintendent violated Wis. Const., Art. X, § 1.

The Court of Appeals applied Thompson as settled law, ruling that Act 21, as it applied to the SPI, violated the fundamental principle set forth in Thompson that other state officers whom the Legislature assigns authority over education may not have power that is equal or superior to the Superintendent’s. Act 27 created a State Education Commission, a State Department of Education, and the position of State Secretary of Education.

The defendants say this case differs from Thompson, in part, because the Legislature does not, in Act 21, transfer “each and every one” of the SPI’s supervisory powers to another, Art. X, § 1 is not violated.

They contend the “holding in Thompson is tied to circumstances where the supervisory powers with respect to public instruction are given to other officers,” and that Act 21 does not give others supervisory power.  The defendants also contend that regulatory rulemaking is not inherent in the power to supervise public instruction and that concept did not exist in 1848, when the state constitution was approved.

The issues presented to the Supreme Court by the defendants:

  • Does the legislative authority delegated under Act 21 fall within the executive power conferred upon the superintendent in Wis. Const. art. X, § 1 for the “supervision” of public instruction? 
  • Alternatively, without regard to the distinction between legislative and executive power, does Act 21 impermissibly infringe on the Superintendent’s power where Wis. Const. art. X, § 1 expressly authorizes the Legislature to appoint other officers and to prescribe all of the powers and duties related to public instruction, and where Act 21’s effect on rulemaking does not unduly burden or substantially interfere with the superintendent’s role in the supervision of public instruction?
  • Was the circuit court order overly broad in holding that Act 21’s provisions could never be lawfully applied to any proposed rule of the Superintendent, without regard to that rule’s connection with the Superintendent’s authority to supervise public instruction?
A decision in this case is expected to clarify rulemaking authority relating to the SPI.

From Dane County.

2014AP1267-CR State v. Parisi
This case examines “the good faith exception” to the exclusionary rule, which otherwise excludes or suppresses evidence obtained in violation of an accused person’s constitutional rights contained in the Fourth Amendment to the U.S. Constitution.

The good faith exception to the exclusionary rule was recently recognized as applying when the police seized blood without a warrant or exigent circumstances for the purpose of testing it for the presence of alcohol, in reliance on a then controlling but later abrogated decision of the Wisconsin Supreme Court.

The defendant in this case, Andy J. Parisi, contends the good-faith exception should not be applied in a similar fashion for the purposes of his case, which involves testing blood for the presence of drugs.

Some background: In October 2012, police were called to a residence in Oshkosh to attend to an individual who was possibly not breathing.  They found Parisi lying motionless and unresponsive in the living room with vomit near him. There was heroin at the residence. Paramedics revived Parisi with Narcan, a substance used to reverse the effects of opiate overdoses. He was transported by ambulance to Aurora Medical Center where police instructed medical staff to obtain a warrantless blood sample from Parisi.  The sample revealed the opiates and morphine (a metabolite of heroin). 

Parisi was charged with possession of narcotics. The circuit court denied Parisi’s suppression motion and the Court of Appeals affirmed, holding that the good faith exception precluded application of the exclusionary rule where police searched a suspect’s blood without a warrant in objectively reasonable reliance on State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993).  See State v. Kennedy, 2014 WI 132, 359 Wis. 2d 454, 856 N.W.2d 834; State v. Foster, 2014 WI 131, 360 Wis. 2d 12, 856 N.W.2d 847.

Parisi contends that “case law justifying a warrantless blood draw in the context of suspected drunk driving investigation, where criminal liability is established on the basis of the concentration or percentage level of alcohol in a suspect’s blood, cannot reasonably be viewed as providing clear and settled precedent justifying a warrantless blood draw seeking evidence of heroin use in a non-driving context.”  He argues that suspicion that a person may have ingested heroin does not create an exigency justifying a warrantless blood draw. He asserts that there was “no exigency [because] injected or ingested heroin is metabolized in a matter of a few minutes but its signature metabolites remain present for many hours.”  

Parisi presents information on how the dissipation of alcohol in the blood is different from the dissipation of drugs in the blood. The state says the question is whether a reasonable police officer should have been expected to understand how different drugs dissipate differently.

The state cites Bohling, as abrogated by Missouri v. McNeely, 569 U.S. __, 133 S. Ct. 1552 (Apr. 17, 2013) and State v. Reese, 2014 WI App 27, ¶¶17-18, 353 Wis. 2d 266, 844 N.W.2d 396, acknowledging that “[n]ow, the rapid dissipation of alcohol in the bloodstream alone is not enough to dispense with a warrant.”

The state says “any warrantless blood draws performed in the absence of exigent circumstances, or any other exception to the warrant requirement, after the date McNeely was decided would plainly violate the Fourth Amendment, and be subject to the exclusionary rule.”

Before the date McNeely was decided, the Wisconsin Supreme Court decided that police could rely in good faith on the holding in Bohling to conclude that they did not need exigent circumstances to take a blood sample to detect alcohol in the blood. See Foster and Kennedy.

The Supreme Court is expected to decide, as posed by Parisi, whether:

The Court of Appeals erred in ruling that the warrantless blood draw was proper; there was no exigency and case law permitting a warrantless blood draw to test for alcohol percentage in a drunk driving context is not clear and settled precedent justifying a test for heroin in a non-driving possession investigation case.

From Winnebago County.

2013AP1488 DOJ v. DWD
This case examines provisions of Wis. Stat. § 230.80(5), the state’s whistleblower protection statute. The law provides protections for employees who disclose information gained by the employee which the employee reasonably believes demonstrates:  (a) a violation of any state or federal law, rule or regulation;  or (b) Mismanagement or abuse of authority in state or local government; or (c) a substantial waste of public funds or danger to public health or safety.

The Supreme Court reviews whether the protections under the law extend to a state Department of Justice (DOJ) employee who disclosed her belief that using state employees as security guards at a national political convention violated Office of State Employment Relations (OSER) policy and was a misuse of state resources.

Some background: The Equal Rights Division (ERD) of the state Department of Workforce Development had determined that the DOJ had violated Joell Schigur’s rights under one of Wisconsin’s whistleblowing protection statutes. The trial court reversed that decision, and the Court of Appeals affirmed. Schigur asked the Supreme Court to review the Court of Appeals’ decision.

In May 2006, Schigur, a “special agent in-charge” within DOJ’s Division of Criminal Investigation, was promoted to the position of Public Integrity Director. Schigur’s promotion was subject to a two-year probationary period, during which the employee is evaluated by his or her supervisor to determine if the employee is “effectively able to carry out the assigned duties and responsibilities on a continuing basis.”  See Wis. Admin. Code § ER-MRS 13.015 (June 2005)

For almost the entire two-year probationary period, Schigur received positive performance reviews for her work as the Public Integrity Director, and one of her supervisors during that time recommended she be removed from probationary status early due to outstanding performance. Despite the recommendation, Schigur’s probation was not ended.

In April 2008, Schigur was made aware that then-Attorney General J.B. Van Hollen would be attending the 2008 National Republican Convention in St. Paul, Minnesota, and that the Division of Criminal Investigation planned to send agents with the Attorney General to provide 24-hour security for him. On April 21, 2008, Schigur sent an email to her supervisor, Mike Myszewski, in which she expressed concern about the Division of Criminal Investigation providing security for the Attorney General at the convention.  Schigur’s email stated in relevant part:

I am concerned that providing state resources to the Attorney General while he participates in a political activity off duty may violate OSER regulations and state law.  I am expressing this concern in hopes that this decision will be further evaluated to avoid possible scrutiny of our Attorney General, our agency and our special agents.

Schigur attached to her email a bulletin from the Office of State Employee Relations (OSER-0053-MRS).  According to the Administrative Law Judge’s (ALJ) findings of fact, the bulletin provided that a State employee may participate in a political convention if off-duty and not on State property.

Myszewski responded, in part, that he would pass Schigur’s concerns up the chain of command, but that he did not think that an on duty Division of Criminal Investigation agent who is protecting the attorney general at a political event constituted political activity on the part of an agent. Schigur in turn responded that her  concern was whether state resources could  be used by the attorney general at a political event where, Schigur believed, he was not representing DOJ.

According to the ALJ, DOJ never sent any agents to the Republican National Convention to provide security services, and the deputy attorney general ultimately concluded that there was no threat to Van Hollen’s security.

In May 2008, just three months after  a positive performance review, Schigur received an evaluation indicating she did not meet the standard for directing and supervising the unit in accordance with department and division policies and procedures.  Schigur was then demoted to her former position as a special agent in-charge.

In July 2008, Schigur filed a complaint with the ERD, alleging that the termination of her probation was in retaliation for her April 2008 emails, and therefore, that the termination of her probation was in violation of Wis. Stat. § 230.83.  Section 230.83(1) prohibits “retaliatory action.”  “Retaliatory action” is defined to include taking disciplinary action against an employee who “lawfully disclose[s] information.”  § 230.80(8)(a).

The ERD certified the matter for a hearing before an ALJ.  The ALJ determined that DOJ violated Wis. Stat. § 230.83 when DOJ terminated Schigur’s probation. DOJ petitioned the trial court for review of the ALJ’s decision.  The trial court reversed, concluding that the ERD had erred. 

The trial court concluded that Schigur had not disclosed “information” in the emails at issue and, therefore, that Schigur was not entitled to protection from retaliation under Wis. Stat. § 230.83. The Court of Appeals affirmed, concluding that Wis. Stat. § 230.81(1) does not cover employee statements that “merely voice opinions or offer criticism.”

Schigur argues that the Court of Appeals’ decision runs afoul of the entire purpose of Wis. Stat. ch. 230, which, according to Wis. Stat. § 230.02, is to be construed “liberally in aid of the purposes declared in s. 230.01.”  These stated purposes include “to ensure [state] employees opportunities for satisfying careers and fair treatment based on the value of each employee’s services [and] . . . to encourage disclosure of information under subch. III and to ensure that any employee employed by a governmental unit is protected from retaliatory action for disclosing information under subch. III.”  Wis. Stat. § 230.01(2).

A decision by the Supreme Court could clarify law in this area. Justice David T. Prosser did not participate.

From Dane 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:

2014AP793 County of Barron v. Adams

2014AP583 State v. Lee
2015XX624-CR State v. Gracia

2014AP1487 Stuart S. v. Heidi R.

2013AP1465 Norman-Nunnery v. Artisan & Truckers Cas.
2013AP2084-CR State v. Howard
2014AP339 Balele v. Sears
2014AP392 State v. Redman
2014AP966 Cooper v. Rick’s Blacktop & Paving Co.
2014AP1338 Shapiro v. Rick Vanden Heuvel CPA

2013AP2575-CR State v. Boyd

2014AP320 State v. Peterson

Fond du Lac
2013AP2280-CR State v. Pratt
2014AP2138/2626-CR State v. Manlick - Justice David T. Prosser, Jr. did not participate.
2015AP677-W Hein v. Cir. Ct. Fond du Lac Co.

2014AP518-CR State v. Onyeukwu

2014AP1765-CR State v. Hackel

2014AP133 Sai Ram Real Estate Management v. DOT
2014AP185-CR State v. Laurie
2014AP713 State v. Jackson
2014AP967-CR State v. Allen
2014AP1154 Milanes v. Program Review Committee
2014AP2504 State v. Juwon B.

La Crosse
2014AP233-CR State v. Moss - Justice Shirley S. Abrahamson dissents.

2014AP681 Wells Fargo Bank, N.A. v. Fretschel

2013AP1 Manitowoc Co. Sheriff Dept. v. Manitowoc Co.
2014AP1433 Tadish v. State

2013AP1784-CR State v. Jarvis
2013AP1901-CR State v. Ivanez
2013AP2019-CR State v. Delarosa
2013AP2768-CR State v. Jackson
2013AP2867 LNV Corp. v. Willock
2014AP165-CR State v. Sommer
2014AP244-CR State v. Williams - Chief Justice Patience Drake Roggensack did not participate.
2014AP342-CR State v. Jones - Justices Shirley S. Abrahamson and David T. Prosser, Jr. dissent.
2014AP411-CR State v. McGowan
2014AP657 Hupy & Abraham, S.C. v. Barrock
2014AP733 Borders v. Behrman
2014AP786-87-CR State v. Peete
2014AP838-CR State v. Perkins
2014AP845 State v. Guman
2014AP1153-CR State v. Clincy - Chief Justice Patience Drake Roggensack did not participate.
2014AP1205-CR State v. Garcia
2014AP1362-CR State v. Beal
2014AP1968-CR State v. Ross
2014AP1438-CR State v. Morales-Rodriguez
2014AP2218 State v. Sargent
2014AP2960-61 State v. Jasmine W.

2014AP287 Konicek v. Hunton & Williams, LLP

2012AP2247-CR State v. Ramirez - Justice Shirley S. Abrahamson dissents.

2013AP2601-02-CR State v. Kelly
2014AP62 Heef Realty and Invest. v. City of Cedarburg Board of Appeals
2014AP606-CR State v. Lynch
2014AP2186-CNM State v. Williams

2014AP742 City of Stevens Point v. Lowery

2014AP648-CR State v. Cottingham
2014AP1230 Singh v. Kemper
2014AP1297-CRNM State v. Gay
2014AP1392 State v. Miller - Justice David T. Prosser, Jr. did not participate. Justice Shirley S. Abrahamson dissents.
2015AP430-W Sanders v. Clements
2015AP520-W Sanders v. COA, Dist. II

2013AP2628-CR State v. Kline

2013AP2817 State v. Berlin

2013AP1693-CR State v. Roalson

2014AP1535 State v. Hvizdak
2014AP1793 Sheboygan Co. v. Spencer B. H.

St. Croix
2014AP551 Bye v. Wis. DNR

2014AP536-CR State v. Walters

2014AP458 Monreal v. City of New Berlin
2014AP778-CR State v. Wesley
2014AP1236-CR State v. MacGillis

2013AP2538 State v. Arnold
2013AP2696-CR State v. McCann
2014AP837-CR State v. Boyd
2014AP1158-CR State v. Adams - Chief Justice Patience Drake Roggensack dissents.
2014AP1351 Winnebago Co. v. Martin W. - Justice David T. Prosser, Jr. did not participate.
2014AP2554 Anesthesia Services v. Fisher
2014AP2792-FT Winnebago Co. v. Brian C.

Tom Sheehan
Court Information Officer
(608) 261-6640


Back to current headlines