Wisconsin Supreme Court accepts twelve new cases

Madison, Wisconsin - July 2, 2014

The Wisconsin Supreme Court has voted to accept 12 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. Visit the Supreme Court and Court of Appeals Access website for more information about the status of any particular case.

2011AP2956-CR State v. Scull
The general issue in this case is whether the trial court erred in denying defendant Gary Monroe Scull's motion to suppress evidence found by police after they brought a drug-sniffing dog to the front door of his residence without a warrant or probable cause.

More specifically, the Wisconsin Supreme Court examines whether the good faith exception to the exclusionary rule applies because the police obtained a search warrant in good faith –although based, in part, on the prior illegal search with the drug dog.

The Wisconsin Supreme Court considers the case in light of a U.S. Supreme Court decision reached after the trial court denied Scull's motion to suppress, and after Scull filed his notice of appeal. The U.S. Supreme Court ruled that "[t]he government's use of trained police dogs to investigate the home and its immediate surroundings is a ‘search' within the meaning of the Fourth Amendment." See Florida v. Jardines, 569 U.S. ___, 133 S. Ct. 1409, 1417-18 (March 26, 2013). Thus, under Jardines, the police undisputedly violated Scull's Fourth Amendment rights when they brought a drug-sniffing dog to the front door of his residence without a warrant or probable cause. However, at the time the court commissioner signed the search warrant in this case, there was no Wisconsin or U.S. Supreme Court precedent directly addressing whether a drug sniff outside a defendant's residence was a Fourth Amendment search.

Some background: In the summer of 2010, police followed up on a confidential informant's tip that Scull was distributing cocaine base in the city of Milwaukee. Relying on the information from the confidential informant about Scull's vehicle and home address, a police detective took a trained drug-sniffing dog to Scull's residence. The dog alerted. Based on information from the informant and the dog's alert, police applied for and obtained a search warrant for Scull's residence, where police found drugs and drug-trafficking paraphernalia.

After seeking unsuccessfully to suppress evidence, Scull pled guilty to one count of possession with intent to deliver more than 40 grams of cocaine and to one count of keeping a drug house. The trial court sentenced him to 11 years of imprisonment on the two counts.

Scull appealed, unsuccessfully. Because the parties agreed that, under Jardines, the search warrant for Scull's home was invalid, the only question for the Court of Appeals was whether the subsequently discovered drug evidence was admissible through the good faith exception to the exclusionary rule. The Court of Appeals noted that, under the good faith exception, the exclusionary rule does not apply when the officers conducting an illegal search acted in the objectively reasonable belief that their conduct did not violate the Fourth Amendment. The Court of Appeals ruled that the good faith exception to the exclusionary rule applies because: (1) the process used in obtaining the search warrant included a significant investigation and a review by a knowledgeable government attorney; and (2) prior to Jardines, dog-sniff searches of the type presented in this case had been held lawful in many jurisdictions.

Scull contends that the only piece of evidence in the search warrant affidavit linking drugs to Scull's home was the alert from the drug-sniffing dog – a dog which, per Jardines, was sniffing around on Scull's property unconstitutionally. From Milwaukee County.

2013AP127-CR State v. Moore
This case examines issues related to the custodial interrogation of juveniles and the criteria for evaluating the voluntariness of a juvenile confession.

A decision by the Supreme Court is expected to clarify the meaning of "refus[al] to respond or cooperate" under § 938.31(3)(c)1.

Some background: Raheem Moore was convicted of second-degree reckless homicide. The events in question took place in 2008, when Moore was 15 years old. Police interviewed Moore twice on Oct. 10, the day he was arrested for a shooting death.

Audio recordings were made of several segments of police interviews as required by Jerrell C.J. State v. Jerrell C.J., 2005 WI 105, 283 Wis. 2d 145, 699 N.W.2d 110 and Wis. Stat. § 938.195(2)(a). During the course of the day, Moore changed his story about his involvement in the shooting several times. Moore first indicated he was not involved, then blamed another man. After the police turned off the recorder at Moore's request, Moore told police that he had fired the fatal shot. Police then decided to surreptitiously record the remainder of Moore's interview, during which Moore gave details about the shooting.

Moore was charged with first-degree reckless homicide. Moore filed a motion to suppress the unrecorded statement, as well as the recorded statement that immediately followed. His motion was denied. Moore subsequently pled guilty to second-degree reckless homicide.

Moore appealed, unsuccessfully.

The Court of Appeals held that Moore made his confession voluntarily, with full knowledge of his rights. The Court of Appeals further held that Moore's unrecorded statement and his subsequent recorded statement were admissible because Moore refused to respond or cooperate unless the police turned off the recorder, as is required for an unrecorded statement of a juvenile to be admissible under §§ 938.195(2)(a) & 938.31(3)(c)1.

The Supreme Court considers two issues presented by Moore:

1. Did the detective's decision to turn off the recorder violate the mandate of In Re Jerrell C.J. and Wis. Stat. § 938.195, thus requiring suppression of [Moore's] unrecorded statement and his subsequent recorded statement?

2. Was Moore's inculpatory statement, made 11 hours after he was arrested, held incommunicado, and interrogated by two teams of detectives, voluntary? From Milwaukee County.

2013AP1108-CR State v. Delebreau
This case examines whether a Miranda [Miranda v. Arizona, 384 U.S. 436 (1966)] waiver is sufficient to waive a defendant's Sixth Amendment right to counsel after a defendant has been charged and is represented by counsel.

Jesse J. Delebreau stands convicted of one charge of party to the crime of delivering less than three grams of heroin, second and subsequent offense, as a repeater.

On March 31, 2011, police took Delebreau into custody in the Brown County Jail on a probation hold. Delebreau was the subject of an ongoing drug investigation. A sheriff's deputy, Roman Aronstein, was involved in the drug investigation. Aronstein had referred charges against Delebreau to the district attorney's office.

Sometime between April 7 and April 9, 2011, Delebreau submitted a request to the Brown County Jail staff requesting to speak to someone from the Brown County Drug Task Force. Jail staff forwarded the request to the drug task force, and the request was reviewed by Aronstein.

On April 14, 2011, the state charged Delebreau pursuant to Deputy Aronstein's referral. That same day, Delebreau appeared in court represented by a public defender.

On April 15, 2011, Aronstein responded to Delebreau's request to speak with someone from the drug task force. Aronstein met with Delebreau in the jail. Delebreau received Miranda warnings, waived his rights, and gave a recorded statement.

On April 18, 2011, Aronstein returned to the jail with a written statement for Delebreau to sign. Delebreau again waived his Miranda rights, and he reviewed and signed the statement.

Delebreau later moved to suppress his statements. The motion was denied, and Delebreau was convicted following a trial at which the state utilized the statements.

Delebreau appealed, unsuccessfully. He argued that the State violated his Sixth Amendment right to counsel because, he claimed, a mere Miranda waiver is insufficient to waive the right after a defendant has been charged and is represented by counsel. Delebreau argued that under these circumstances, the State must engage in the more expansive waiver inquiry that is required when a defendant waives his right to counsel in court.

The Court of Appeals disagreed, holding that under State v. Forbush, 2011 WI 25, 332 Wis. 2d 620, 796 N.W.2d 741, Delebreau waived his Sixth Amendment right to counsel when he waived his Miranda rights, and thus the trial court properly admitted his statements at trial.

Delebreau presents two issues to the Supreme Court:

  • Once trial counsel has been appointed for a criminal defendant, if the defendant requests a custodial interview with law enforcement, is it a violation of that defendant's Sixth Amendment right to counsel for law enforcement to take a statement from the defendant, without the defendant's appointed attorney being present, if the officer provides the usual Miranda warnings before taking the statement?
  • Once trial counsel has been appointed for a criminal defendant, if the defendant requests a custodial interview with law enforcement, is it a violation of that defendant's Article I, Section 7 of the Wisconsin Constitution right to counsel for law enforcement to take a statement from the defendant, without the defendant's appointed attorney being present, if the officer provides the usual Miranda warnings before taking the statement?

A decision by the Supreme Court could clarify the meaning of the court's divided Forbush decision. From Brown County.

2012AP2566 Sohn Manufacturing v. LIRC
This case examines several issues arising from a worker's compensation claim.

Tanya Wetor was inured while working for Sohn Manufacturing in Elkhart Lake. In August 2009, Wetor was cleaning a die cutting machine in Sohn's print department when her hand was pulled into some metal rollers on the machine, resulting in severe injuries to the hand.

Sohn states that there is no dispute regarding Wetor's injury or the compensatory benefits associated with her injury. The benefits to compensate her for her injuries have been paid by Sohn's insurer. According to Sohn, what is at issue is whether the procedure of the Wisconsin Department of Commerce (Commerce) and the Wisconsin Department of Workforce Development (WDWD) and their apparent reliance on an Occupational Safety and Health Administration (OSHA) standard for imposing an additional 15-percent penalty are preempted by the federal Occupational Safety and Health Act (OSH Act).

Sohn emphasizes that Wetor did not file a formal worker's compensation proceeding. After the accident, however, Commerce, in cooperation with the WDWD, conducted an inspection and investigation regarding Sohn's facility and Wetor's accident.

On March 30, 2010, Commerce issued a report regarding its investigation. The report quoted extensively from a 2001 OSHA interpretation letter, which stated essentially that, although lock out/tag out procedures are not always required for cleaning machinery in the printing industry under OSHA regulations, employees should not be allowed to place any body part within a hazardous area, including "ingoing nip points." The report concluded that the conditions at Sohn were not sufficient to meet the exception for lock out/tag out procedures in OSHA 1910.147.

At the end of the report, there was a box that quoted the OSHA standard, 29 C.F.R. 1910.147(c)(4), as well as the text of the Wisconsin safe place statute. Underneath this box was a one-sentence conclusion: "The facts in this case show cause for a conclusion that the employer failed to be in compliance with the above-mentioned OSHA standards, 29 C.F.R. 1910.147(c)(4)(i) and Wisconsin Statute ss. 101.11 [the safe place statute]."

Sohn claims that on May 26, 2010, the WDWD, sua sponte, issued a letter to Sohn requiring it to pay a 15-percent increase in benefits to Wetor under Wis. Stat. § 102.57. The May 26, 2010 letter relied on the March 30, 2010 report issued by Commerce as the basis for imposing the increase.

Sohn disputed that it was obligated to pay a 15-percent increase and moved for dismissal of the safety violation claim on the grounds that it was preempted and impermissible under applicable law. The administrative law judge (ALJ) denied the motion, stating that Sohn would have to pursue "any constitutional issues" in the appellate courts.

The ALJ proceeded with an administrative hearing on Jan. 25, 2010. The ALJ issued written findings of fact, conclusions of law, and an interlocutory order on Febn 11, 2010. The ALJ's decision again relied on both the OSHA standard and the safe place statute in determining that Sohn was liable to pay a "safety violation penalty."

Sohn appealed the ALJ's decision to LIRC, which affirmed the decision and interlocutory order. The LIRC rejected Sohn's argument that the imposition of the safety violation penalty was preempted by federal law. It cited a circuit court decision from 1993 that rejected a similar argument.

Sohn then sought review in the Sheboygan County circuit court, but that court also rejected Sohn's preemption arguments in a 14-page written decision and order.

The Court of Appeals also affirmed the Labor Industry Review Commission (LIRC) decision. It concluded that a provision of the OSH Act demonstrated that Congress explicitly preserved worker's compensation laws from preemption. It also determined that the WDWD had not relied on an OSHA regulation as the basis for the additional penalty, but had used the OSHA violation merely as evidence of Sohn's violation of the state safe place statute.

Sohn presents these issues to the Supreme Court:

  • May the state of Wisconsin inspect private workplaces for violations of the Wisconsin Safe Place Statute (Wis. Stat. § 101.11(1)) or federal OSHA standards and use the results of such inspections to enforce a safety penalty under Wis. Stat. § 102.57?
  • Is the use of federal OSHA regulations to enforce Wis. Stat. § 102.57 allowed under 29 U.S.C. § 653(b)(4)?
  • Does Wis. Stat. § 101.01(15)(a) prohibit the State action in this case?

Justice David T. Prosser did not participate. From Sheboygan County.

2012AP2466 Stoker v. Milwaukee Co.
This case examines issues related to changes in the Milwaukee County retiree pension benefit formula.

Defendants, Milwaukee County and the Milwaukee County Pension Board, have both filed petitions for review from a Court of Appeals' decision affirming a circuit court order granting summary judgment in favor of the plaintiffs, Suzanne Stoker and Wisconsin Federation of Nurses and Health Professionals, Local 5001, AFT, AFL-CIO. The Court of Appeals agreed with the circuit court that a Milwaukee County Ordinance reducing the multiplier for the calculation of Milwaukee County retirement benefits for service performed after January 1, 2012 was invalid as applied to county employees who had vested rights in the higher multiplier before that date.

Milwaukee County states the issues as follows:

  • Whether Milwaukee County may modify one element of its pension benefit formula prospectively, while making no change in the formula used for service previously rendered and credited?
  • Whether the decisions of this court in Loth v. City of Milwaukee, 2008 WI 129, 315 Wis. 2d 35, 758 N.W.2d 766 and of the Court of Appeals in Wisconsin Federation of Nurses and Health Professionals, Local 5001, AFT, AFL-CIO, et al. v. Milwaukee County, 2013 WI APP 134, 351 Wis. 2d 421, 839 N.W.2d. 869 (petition for review granted), prevail over and must be harmonized with Welter v. City of Milwaukee, 214 Wis. 2d 485, 571 N.W.2d 459 (Ct. App. 1997) and Rehrauer v. City of Milwaukee, 2001 WI App 151, 246 Wis. 2d 863, 631 N.W.2d 644?

The Milwaukee County Pension Board identifies the issues as follows:

  • Whether Milwaukee County may modify one element of its pension benefit formula prospectively, while making no change in the formula used for service previously rendered and credited?
  • Whether consent by a Milwaukee County employee's union is sufficient consent to a prospective reduction in a retirement benefit, under laws of 1945, Ch. 138 § 2(a)?

At the time Stoker became a county employee, the multiplier for her pension formula was set at 1.5 percent by Milwaukee County General Ordinance § 201.24(5.1). Effective Jan. 1, 2001, Milwaukee County General Ordinance § 201.24(5.15)(1)(a) implemented a "recruitment and retention incentive" under which employees hired after Jan. 1, 1982 would acquire an additional 0.5 percent multiplier for each year of employment after Jan. 1, 2001 and the increased multiplier would apply to prior years of each such employee's service at the rate of eight previous years of employment for each year served after January 1, 2001. By 2006, a multiplier of 2.0 percent applied to all of Stoker's creditable service prior to that date.

In 2011, Local 5001 and the County entered into a memorandum of agreement whereby the multiplier was set at 1.6 percent for all creditable service on or after Jan. 1, 2012. Amounts accrued prior to that date under Milwaukee County Employee's Retirement System (MCERS) were unaffected. Neither Stoker nor any member of the class she represents personally consented to the reduction of their pension multiplier.

In December of 2011, Stoker and Local 5001 filed suit, seeking a declaratory judgment that Milwaukee County General Ordinance § 201.24(5.1)(2)(f) was invalid. They also sought an injunction prohibiting the county and the pension board from reducing the multiplier for Stoker's MCERS account and the accounts of those similarly situated, from 2.0 percent. All parties filed summary judgment motions. The circuit court concluded that Stoker and the members of the class had vested rights in the 2.0 percent multiplier that could not be reduced through collective bargaining. The court thus entered summary judgment in favor of Stoker and the class members. The court declared the ordinance invalid and prohibited the County and the pension board from reducing any class member's multiplier from 2.0 percent for service performed after January 1, 2012. The county and pension board appealed. The Court of Appeals affirmed. From Milwaukee County.

2013AP225 State v. Alger
2013AP578 State v. Knipfer

These two cases examine similar issues related to whether a ch. 980 petition for discharge, filed after the effective date of Wisconsin's adoption of the Daubert reliability standard for expert testimony, should be considered a new "action" (to which the Daubert standard would apply) or a continuation of the existing case that began when the original ch. 980 petition was filed.

Some legal background: Wisconsin's new Daubert standard first applies to actions or special proceedings that are commenced on or after Feb. 1, 2011. Michael Alger's discharge petition was filed on April 21, 2011. Ronald Knipfer's discharge petition was filed in May of 2012.


In May of 2004, the state filed a ch. 980 commitment proceeding seeking Alger's commitment as a sexually violent person. After a two day trial, a jury found that Alger was sexually violent. The circuit court ordered him placed in the custody of the Department of Health and Family Services and committed to a secure mental health facility. Alger filed petitions for discharge from his commitment in 2006 and 2007. Both were denied.

In January of 2011, the legislature amended Wisconsin's expert witness statute, § 907.02, to adopt the federal standard for the admissibility of expert testimony as set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Prior to adopting the Daubert standard, testimony of a witness in Wisconsin "qualified as an expert by knowledge, skill, experience, training, or education" was admissible if "scientific, technical, or other specialized knowledge" would "assist the trial of fact to understand the evidence or to determine a fact in issue[.]" Sec. 907.02, Stats. (2009-10).

Under the revised version of the statute, the circuit court must also conclude that the expert's testimony "is based upon sufficient facts or data, the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts of the case." Pursuant to 2011 Wis. Act 2, § 45(5), the new reliability standard first applies to actions or special proceedings that are commenced on the effective date of this subsection, which was Feb. 1, 2011.

On April 21, 2011, Alger filed another petition for discharge from his ch. 980 commitment. The state conceded that the petition stated sufficient facts to warrant a full discharge hearing. Alger then filed a motion in limine seeking to preclude the state from introducing certain expert testimony relating to Alger's risk of reoffending. Alger claimed the challenged testimony would not satisfy the new Daubert standard. The state responded that the new standard did not apply to Alger because his discharge petition did not constitute an action or special proceeding commenced after Feb. 1, 2011. In the alternative, the state argued that, even if the new standard did apply, the challenged testimony met the standard.

Alger filed another discharge petition on Nov. 23, 2011. The circuit court ordered the two petitions merged for trial. Alger filed a supplemental motion in limine, arguing that if the new reliability standard did not apply to his discharge petitions, it violated his right to equal protection.

The circuit court denied Alger's original and supplemental motions in limine. The court reasoned that a petition for discharge from a ch. 980 commitment did not create a new civil action. It also held that the new reliability standard did not violate Alger's right to equal protection.

The case was tried to a jury. The state introduced the type of expert testimony that Alger's motions in limine had sought to exclude. The jury found that Alger was still a sexually violent person, and the circuit court entered an order denying his discharge petitions. Alger appealed, and the Court of Appeals affirmed.

Alger raises the following issues:

  • Did the circuit court err in concluding that despite the fact that Alger filed petitions for discharge after the effective date of amendments to Wis. Stat. § 907.02(1) (2011-12), those amendments did not apply to the proceedings on those petitions because the "action" was "commenced" with the filing of the petition for commitment in 2004?
  • Does Wis. Stat. § 907.02(1) violate Alger's rights to Equal Protection if it is deemed to be inapplicable to discharge petitions he files after the effective date of the statute?


Ronald Knipfer was committed as a sexually violent person in 2003. In May of 2012, he filed a petition for discharge. The circuit court concluded that the pre-Daubert version of § 907.02(1) applied to the petition, and the court rejected Knipfer's claim that failing to apply the new version of the statute amounted to an equal protection violation. The circuit court denied Knipfer's petition for discharge. Knipfer appealed, and the Court of Appeals, applying its recent decision in Alger, affirmed.

Knipfer raises the following issues:

  • Does a Chapter 980 petition for discharge filed after the effective date of the statutory revision adopting the Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) reliability standard for expert testimony commence a new action subject to the revised standard, or does a discharge petition merely continue the original 980 proceeding, so that a patient whose original commitment was initiated prior to February 1, 2011, will remain subject to the otherwise abandoned evidentiary standard in all future discharge proceedings?
  • If the revised standard governing the admissibility of expert testimony does not apply to Ronald Knipfer's present and future discharge proceedings simply because his original commitment was initiated prior to February 1, 2011, does this statutory revision violate Knipfer's rights to due process and equal protection of the law?
  • In assessing whether the disparate evidentiary treatment of 980 discharge trials violates equal protection of the law, should a reviewing court apply strict scrutiny or a rational basis standard?

The state argues that the Court of Appeals has correctly held that discharge proceedings are a continuation of the underlying commitment proceedings, not a new "action or special proceeding" to which the Daubert rule applies. According to the state:

Alger suggests that the Daubert statute imposes reliability standards where none existed before. He casts the pre-Daubert regime as an evidentiary Wild West in which even the most unreliable junk science was admissible. He also implies that expert risk assessment evidence in ch. 980 cases almost certainly will be inadmissible under the Daubert statute. This is a false dichotomy and a premature conclusion... It remains unclear whether and how much the Daubert statute really will change what expert testimony is admitted in Wisconsin…

The state goes on to argue that the legislature's adoption of a revised evidentiary standard for expert testimony in no way impugns the prior standard and/or related proceedings under that standard.

The state also says the Court of Appeals correctly held that the Daubert statute does not violate Alger's or Knipfer's right to equal protection. The state says the new statute obviously had to take effect at some time, and it says the Court of Appeals correctly held that the Fourteenth Amendment does not forbid statutes and statutory changes to have a beginning, and thus to discriminate between the rights of an earlier and later time.

Knipfer is from Dane County; Alger, from Outagamie County.

2013AP298-CR State v. Harrison
This case examines issues related to judicial substitution arising from the conviction of defendant Richard Harrison for burglary, theft, and resisting an officer.

Some background: A criminal complaint filed on July 16, 2010 charged the defendant with burglary, resisting/obstructing, and criminal damage to property, all as a repeat offender. The state filed an amended information on July 11, 2011, adding a charge of misdemeanor theft, as a repeater.

On August 20, 2011, the defendant filed a motion for substitution of judge pursuant to § 971.20(2). The chief judge of the district reassigned the case from Judge Jon M. Counsell to Judge Thomas T. Flugaur.

A preliminary examination was held before Flugaur on Dec. 29, 2010. After the preliminary examination, for reasons not disclosed in the record, Counsell presided over the remainder of the case, including the jury trial that was held in July of 2011, and sentencing. The jury found the defendant guilty of three of the four counts. The defendant was sentenced to 13 years of initial confinement and seven years of extended supervision.

The defendant filed a postconviction motion arguing he was entitled to a new trial because the judge that presided over his trial had no authority to act due to a timely request for substitution of judge. The motion also alleged that trial counsel was ineffective in multiple respects. In the alternative, the defendant requested sentence modification to allow him eligibility for the earned release and challenge incarceration programs. Along with his motion, the defendant wrote a letter asking that a different judge be assigned to address the postconviction motion. The circuit court denied the request for a different judge as untimely.

The circuit court amended the judgment of conviction to reflect that the defendant was eligible for the earned release and challenge incarceration programs. The court said, "[a]s the court has granted defendant's requested alternate relief, the court concludes that there is no longer a need for ‘a new trial or an evidentiary hearing' to address other issues defendant has raised, as they are rendered moot." The defendant appealed, and the Court of Appeals summarily reversed and remanded for a new trial because Harrison's request for a substitution of judge was not honored.

The state raises three issues:

  1. Whether a judge, lacking competence due to a timely motion for substitution under Wis. Stat. § 971.20, presiding over a jury trial and entering the judgment of conviction constitutes "structural error" requiring automatic reversal
  2. Assuming the harmless error analysis applies in this case, the judge, lacking competence due to a timely motion for substitution under Wis. Stat. § 971.20, presiding over a jury trial and entering the judgment of conviction was harmless error
  3. Whether the defendant's objection to competency of the judge in this case due to a timely motion for substitution under Wis. Stat. § 971.20 was waived when he failed to timely object to the judge's lack of competence

Harrison says this is a fact-specific case with unique circumstances in which he contends that Counsell repeatedly chose not to abide by the substitution statute. Harrison argues that the type of error that occurred here is not prevalent and that the state's claim that a harmless error analysis must be employed to avoid "sandbagging" by defendants and their attorneys is a red herring since it is extremely rare that a judge will return to a case after a substitution request is granted. From Clark County.

2013AP544 Bank of New York v. Carson
This case examines whether Wis. Stat. § 846.102 requires a plaintiff in a foreclosure action to sell subject property "without delay" upon the expiration of the redemption period or merely permit a plaintiff to sell the subject property upon the expiration of the redemption period.

The Supreme Court is expected to consider a potential conflict between the Court of Appeals' decision here and Deutsche Bank Nat'l Trust Co. v. Matson, 2013 WI APP 105, 349 Wis. 2d 789, 837 N.W.2d 178 (petition for review denied). Matson that held that the identical language in Wis. Stat. § 846.103 permits, but does not force, the plaintiff to bring the property to sale and a decision.

The Court of Appeals in this case, held that Wis. Stat. § 846.102 requires the plaintiff in a foreclosure action to sell the subject property "without delay" upon the expiration of the redemption period.

Some background: On Jan. 25, 2011, the Bank of New York (Bank) filed a foreclosure action against

Shirley Carson, a 62-year-old widow who was physically and financially unable to care for her residence in Milwaukee. Carson did not file an answer or otherwise dispute the foreclosure. Around the time the Bank filed its foreclosure action, Carson had already vacated the property, and the Bank was aware of this fact.

On April 26, 2011, the Bank registered the property as abandoned with the city of Milwaukee under the city's municipal code which requires lenders who initiate foreclosure actions to inspect the property every 30 days and requiring lenders to maintain abandoned property. On April 29, 2011, the Bank filed a motion for default judgment. The motion affirmed that the property was no longer owner occupied.

The circuit court granted the Bank's motion for default judgment on June 13, 2011. The court signed the order the Bank had provided. The order found the property non-owner occupied and ordered that the property be sold at any time after three months from the date of entry of judgment. The order enjoined all parties from committing waste upon the premises and ordered that the Bank "may take all necessary steps to secure and winterize the property in the event it is abandoned or becomes unoccupied during the redemption period or until such time as this matter is concluded."

Despite receiving a notice from the city reminding it to comply with its duty to inspect the property every 30 days and to maintain the property, the Bank did not maintain it. The redemption period passed, but no sheriff's sale was scheduled. The property was later burglarized and vandalized. On June 26, 2012, the City issued a notice of violation because the vacant house was not maintained in a closed or locked condition.

On Aug. 21, 2012, a city inspector noted boxes, scrap wood and loose trash in the alley and backyard, along with other debris. Carson made monthly payments of at least $25 to the City toward the fines resulting from the building code violations but could not contribute anything more toward the upkeep of the property.

On Nov. 6, 2012, Carson moved to amend the judgment. She sought an amendment, pursuant to § 806.07(g) and (h), Stats., that the property was abandoned pursuant to § 846.102, Stats. She also sought an order requiring a sale of the property to be made upon the expiration of five weeks from the date of the amended judgment so that the foreclosure would comply with the terms of § 846.102. The Bank opposed the motion, saying neither the statute nor equity permitted the trial court to order it to hold a sale. The trial court agreed that it lacked authority to order a sale of the property. It also construed § 846.102 to mean that only the Bank could elect the five week abandonment period provided in the statute. The court did not reach the question of whether there were grounds for relief pursuant to § 806.07 or whether relief would be equitable in light of the facts of the case. Carson appealed, and the Court of Appeals reversed and remanded.

The Court of Appeals said it was clear that whether or not the five week redemption period may be applied to a particular property depends on the condition of the property, i.e., is it abandoned, not on the plaintiff's preference. Thus, the Court of Appeals concluded that the lower court erred as a matter of law when it concluded that only the Bank could elect the five week abandonment period provided in the statute. The Court of Appeals said, "The trial court could have, given the evidence presented by Carson . . . decided to amend the judgment to a foreclosure of an abandoned property as described by § 846.102." Slip op. at ¶12 (emphasis added).

The Court of Appeals went on to say that the statutory language makes clear that the trial court did have the power to order the Bank to sell the property.

The Bank's principal argument is that the Court of Appeals' decision in this case is in conflict with its prior decision in Matson. The Bank says that the Matson court "construed identical language in a parallel statutory provision ‘not [to] require [the lender] to sell the property at the end of the … redemption period.'"

Carson contends, among other things, that "Contrary to the [Bank's] assertions, the decision does not ‘require' a sale. Instead, it informs the circuit court of its authority to order a sale, if it makes an evidence-based determination that the property is abandoned upon the motion of either party or a municipal representative." From Milwaukee County.

2013AP1163-CR State v. Hemp
This case examines the manner in which expunction of a court record of a conviction is accomplished. The underlying conviction is not at issue.

Some background: Kearny W. Hemp was charged with possession with intent to distribute THC, a Class I Felony. He entered a guilty plea. The circuit court ordered 30 days of conditional jail time, granted the request for an 18-month probation period with Huber release privileges, and ordered multiple other conditions of probation, including treatment with a counselor and absolute sobriety. At the end of the hearing the circuit court also stated: "Moreover, I am going to grant expungement upon successful completion of probation." It is uncontested that Hemp successfully completed his probation.

About eight months later, Hemp picked up new charges in a different county. At that time, Hemp's new attorney sought verification of the expungement from the Milwaukee County case. Apparently, at this point Hemp learned that he needed to file a form to accomplish expungement.

On Oct. 30, 2012, Hemp, by counsel, filed a petition, "Form CR-266," to expunge the court record of his conviction. The circuit court ordered proof that Hemp successfully completed probation and paid his financial obligations. Hemp's counsel did not respond. On Dec. 18, 2012, Hemp, represented by different counsel, filed another request for expungement, along with the requested proof. The record reflects that the required discharge certificates were forwarded to the circuit court, as evidenced by the notation in the Circuit Court Record minutes sheet that the case status was changed to "discharged," effective Dec. 18, 2011.

Hemp's new counsel advised the court that he was representing Hemp in Walworth County, as Hemp had been charged with one count of possession of THC and possession of drug paraphernalia, and one count of operating while intoxicated. The charges against Hemp in Walworth County were filed eight months after Hemp completed probation in Milwaukee County.

In light of the new charges, the circuit court issued an order requiring Hemp to file a personal statement explaining "why he believes the court should order an expungement under these circumstances." After considering Hemp's personal statement and the state's response, the circuit court denied Hemp's petition to expunge the court record of his Milwaukee County conviction.

Hemp appealed and the Court of Appeals affirmed.

The Court of Appeals ruled that a defendant does not receive court-ordered expunction automatically. The court ruled that after successfully completing his sentence or probation, the defendant must affirmatively petition the circuit court for expunction. Specifically, a defendant must petition the circuit court, sign Form CR-266, and attach the discharge certificate issued by the detaining or probationary authority. The Court of Appeals reasoned that other statutes concerning expungement require a defendant to petition himself.

Hemp says the Court of Appeals' interpretation reads significant obligations into § 973.015, not mentioned in the statutes, such as Form CR-266, which requires a defendant to obtain various documents, sign the form in front of a notary, and submit the materials to the circuit court. These action items, according to the Court of Appeals, are "the sole responsibility of the defendant." However, the petitioner notes that § 973.015 makes no mention whatsoever of any court-approved form or other petition process and nowhere does the statute say that the person must file a petition, a certificate of discharge, or anything else in order to obtain expunction. Stuart v. Weisflog's Showroom Gallery, Inc., 2006 WI App 109, ¶49, 293 Wis. 2d 668, 721 N.W.2d 127 (courts will not superimpose requirements not expressed by the legislature onto a statute).

Hemp raises the following issues for Supreme Court consideration:

  • Was Hemp's conviction expunged upon successful completion of his sentence?
  • Was Hemp required to petition the circuit court for expungement upon successful completion of his probation?
  • May the circuit court unilaterally modify a sentence, sua sponte, to revoke probation that was duly granted?

From Milwaukee County.

2013AP1392 Runzheimer International v. Friedlen
This certification of an employment case by the District I Court of Appeals examines one main issue: Is consideration in addition to continued employment required to support a covenant not to compete entered into by an existing at-will employee?

Some background: In 2009, after defendant, David Friedlen, had been an at-will employee of Runzheimer International, Inc. for approximately 20 years, Runzheimer required Friedlen to sign a restrictive covenant agreement. The agreement prohibited Friedlen from providing "restricted services" to any of Runzheimer's competitors within the geographic area that he had covered during the course of his employment with Runzheimer. The agreement was a condition of Friedlen's continued employment and participation in Runzheimer's yearly incentive plan.

The agreement provided no additional benefit beyond the opportunity for Friedlen to remain employed. Friedlen remained an at-will employee who could be fired at any time without cause. The agreement did not increase Friedlen's salary, nor did it make him eligible for any incentives he had not been eligible for prior to signing the agreement. Friedlen said he felt forced to sign the agreement and understood he would be fired if he did not sign.

In late 2011, about two years after Friedlen signed the agreement, Runzheimer fired him. Soon thereafter Friedlen began working for Corporate Reimbursements Services, Inc. (CRS), a competitor of Runzheimer. Runzheimer sued Friedlen and CRS to enforce the restrictive covenant agreement. Runzheimer's amended complaint alleged claims for breach of contract (against Friedlen), tortious interference with contract (against CRS), and common law misappropriation of confidential information and tortious interference with prospective business relationships (against both defendants). Friedlen moved for summary judgment, arguing that the agreement was invalid because it lacked sufficient consideration. The circuit court agreed.

In its certification, District I notes that Runzheimer's argument is that the trial court's decision is contrary to Wisconsin's treatment of restrictive covenants entered into at the start of employment. See e.g., Wisconsin Ice & Coal Co. v. Lueth, 213 Wis. 42, 43-44, 250 N.W. 819 (1933). Runzheimer argues there should be no difference in how courts treat restrictive covenants entered into at the start of employment and those that are entered into many years later because "every day is a new day both for employer and employee in an at-will relationship." Copeco, Inc. v. Caley, 632 N.E.2d 1299, 1301 (Ohio Ct. App. 1992).

Runzheimer also argues that Wisconsin should adopt a rule that continued at-will employment may suffice as consideration in situations such as this, but only after a court evaluates the circumstances occurring after the restrictive covenant was signed in order to determine if the agreement was reasonable. District I says that adopting this type of rule would require Wisconsin to make an exception to the traditional rule that "the law does not inquire into the adequacy of the consideration to support a promise, only its existence." See Curtis 1000, Inc. v. Suess, 24 F.3d 941, 945 (7th Cir. 1994). But District I goes on to say such a rule would be consistent with Wisconsin law that all contracts must be entered into and fulfilled in good faith.

District I notes that Friedlen argues that this is not really an issue of first impression since Wisconsin law already clearly says that continued employment alone does not constitute sufficient consideration to support a covenant not to compete. See Star Direct, Inc. v. Del Pra, 2009 WI 76, ¶50, 319 Wis. 2d 274, 767 N.W.2d 898.

District I points out, however, that Star Direct did not involve a restrictive covenant entered into by an existing at-will employee. District I further notes that the Star Direct court said it was reasonable for a business to treat new employees differently from current employees since "employers may not compel their existing employees to sign restrictive covenants without additional consideration."

A decision by the Supreme Court is expected to clarify whether covenants not to compete entered into many years after employment begins require consideration and, if so, what constitutes consideration. From Milwaukee County.

2013AP843-CR State v. Alexander
This criminal case examines whether the Court of Appeals may choose to review a case under an ineffective assistance of counsel analysis, even though that claim was not raised below or in the parties' appellate briefs.

Some background: In January of 2012, Danny Robert Alexander was charged with one count of felony forgery. The criminal complaint alleged that he produced two checks for payment to two separate U.S. Bank locations, one in the amount of $1,749.13 and the other in the amount of $1,454.23. Both checks were drawn out of the account of Silver Mill Management Company. The defendant received cash for both checks. The offenses were committed while he was on extended supervision for another offense.

Alexander pled guilty to the charge. The circuit court accepted his plea and ordered a presentence investigation report (PSI). The court received copies of the PSI before the sentencing hearing. The report was prepared by a probation agent, but not the agent who had been supervising the defendant's most recent period of supervision. The PSI was compiled from Department of Correction (DOC) supervision file materials and interviews of collateral witnesses. The agent attached a copy of two statements the defendant had made to his probation agent as part of a revocation in a different case. In the statements, the defendant described cashing the two checks involved here, as well as cashing two other checks from the account of Dave's Machine Repair. The forms on which the statements appeared, DOC Forms 1305/1305A, indicated that the defendant was to "account in a truthful and accurate manner" for his activities and that failure to do so would be a violation for which he could be revoked. The form stated that "none of [the] information [in the DOC forms] can be used against me in criminal proceedings."

At the sentencing hearing, the court asked defense counsel if he had reviewed the PSI with the defendant. Counsel responded, "Yes. You saw the pre-sentence, right?" The defendant responded in the affirmative. No further questions were asked of either the defendant or his attorney as to whether the defendant reviewed or understood the PSI.

Defense counsel told the court that the PSI author had never actually interviewed the defendant. The court said, in reliance on the PSI, that the defendant engaged in continued criminal activity and that he had been revoked multiple times. When the court gave the defendant a chance to speak, the defendant expressed concerns about the PSI, saying he was trying to get his life back on track and that the PSI author included "false allegations in the report."

The PSI author recommended a confinement term of three or four years, followed by three years of extended supervision. The defendant was sentenced to three years of initial confinement and four years of extended supervision. The court said it was "going to follow the recommendation of the pre-sentence to some extent."

The defendant filed a post-conviction motion asking for a new sentence. He argued that the PSI author had wrongfully included the DOC forms containing incriminating statements made to the probation agent. He also alleged that his attorney never reviewed the PSI report with him. The sentencing court denied the motion.

The defendant appealed. The Court of Appeals, with Judge Ralph Adam Fine dissenting, reversed and remanded. On appeal, the defendant argued that he was entitled to resentencing before a different judge because the sentencing court considered protected statements made to a probation agent in making its sentencing decision. The Court of Appeals agreed.

The Court of Appeals noted that a person may not be compelled in any criminal case to be a witness against himself, and the privilege against self-incrimination extends to persons on probation. It also noted that a probationer's answers to an agent's questions prompted by accusations of criminal activity are compelled since a refusal to speak may be grounds for revocation.

The state conceded on appeal that the defendant's statements to his probation agent about the multiple checks he cashed were in fact compelled statements subject to immunity. The state's argument was that since defense counsel failed to object to the inclusion of the statements at the sentencing hearing, the defendant forfeited his right to pursue the issue on appeal. In the alternative, the State argued that the statements were not actually incriminating and that the erroneous inclusion of the statements in the PSI was harmless.

The Court of Appeals went on to conclude that counsel's failure to object was prejudicial. From Milwaukee County.

Review denied:The Supreme Court denied review in the following cases. As the state's law-developing court, the Supreme Court exercises its discretion to select for review only those cases that fit certain statutory criteria (see Wis. Stat. § 809.62). Except where indicated, these cases came to the Court via petition for review by the party who lost in the lower court:

2013AP2735 Barron County DHHS v. Maria A.

2013AP436-CR State v. Norwood
2013AP1334-CR State v. Collins
2013AP1956-CR State v. Williams
2013AP2503-CR State v. Hansen

2013AP28-CR State v. Grube
2013AP865-CR State v. Sittman
2013AP2888 Waas v. City of New Holstein

2012AP1384 O'Grady v. Kohlwey
2012AP1906 Deutsche Bank Nat. Trust v. Parise
2012AP2383/2601-CRNM State v. Gray
2013AP611 McIntyre v. Forbes

2011AP1335 WEA Prop. & Cas. Uns. Co. v. Krisik - Justice N. Patrick Crooks did not participate.
2012AP432-CR State v. Robinson
2012AP750-CR State v. Bernard
2012AP1264 Hewko v. DWD - Justice Ann Walsh Bradley did not participate.
2012AP1924-CRNM State v. Day
2012AP2328 Minerals Dev. & Supply v. Silica Sands
2012AP2689 State v. Riley
2013AP1024 Dermody v. Commissioner of Insurance
2013AP1886-87 Dane Co. DHS v. Nancy M.
2014AP123-W Moore v. Cir. Ct. Dane Co.

Fond du Lac
2013AP2450-W Kedinger v. Cir. Ct. Fond du Lac Co.

2013AP497-CR State v. VanDynHoven

2012AP490-CR State v. Hill

2013AP2073-W Shelton v. Schwochert

2013AP451-CR State v. Wicks

2013AP1734-35-CR State v. Bernabei

2012AP1836 Bank of New York v. Cano

2012AP832-CR State v. King
2012AP2232-33-CR State v. Bailey
2012AP2259-CRNM State v. Gonzalez
2013AP65-CR State v. Johnson - Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley dissent.
2013AP856 State v. Morris

2012AP2576 Tadisch v. Tadisch

La Crosse
2012AP562-CRNM State v. Jurjens
2012AP2447-CR State v. Perner

2014AP522-W Knapp v. Pedley

2013AP925-CR State v. Boruch

2013AP421-22 Manitowoc Co. HSD v. Rebecca H./Craig W. - Justice David T. Prosser, Jr. did not participate. Chief Justice Shirley S. Abrahamson dissents.

2014AP118-19-OA Carter v. Cir. Ct. Marathon Co.

2013AP1260 State v. Evans
2013AP1322 Northbrook Wisconsin v. City of Niagara

2012AP153 State v. Hall
2012AP192-CR State v. Walker
2012AP703 State v. Sundermeyer
2012AP1658 Braun v. Village of Hales Corners
2012AP1828-CR State v. Richmond
2012AP2228-CR State v. Butler
2012AP2281-CR State v. Richardson
2012AP2327-CR State v. Johnson
2012AP2382 State v. Jones - Justice Patience Drake Roggensack did not participate.
2012AP2583-CR State v. McCoy
2012AP2618-CR State v. Tiggs
2012AP2709-10-CR State v. Singh
2013AP47-CR State v. Figueroa
2013AP49-CRNM State v. McCaa
2013AP190-CR State v. Howard
2013AP242-CR State v. Baker
2013AP268-CR State v. Reyes-Ortiz
2013AP279 State v. White
2013AP335 Agnello v. Jackowski
2013AP342-CR State v. Garro
2013AP352-CR State v. Wines
2013AP363-CR State v. Lee
2013AP365 Dumas v. Koebel
2013AP442-43-CR State v. Foster - Justice Patience Drake Roggensack did not participate.
2013AP452 State v. Cotton
2013AP453-CR State v. Bullock
2013AP464 State v. Townsend - Justice Patience Drake Roggensack did not participate.
2013AP469-71 State v. Schuenke
2013AP573-CR State v. Mason
2013AP698-CR State v. Love - Justice Patience Drake Roggensack did not participate.
2013AP714 State v. Coleman
2013AP1128 Village of Hales Corners v. Adams
2013AP1423-CRNM State v. Reeves
2013AP1435-CR State v. Canales
2013AP1576-CR State v. Jahnke
2013AP2415 State v. Shymika S.W.
2013AP2445-46 State v. Delano W.
2013AP2791-W Campbell v. Kemper
2013AP2808-W Rodthong v. Curley
2014AP266-W Cannon v. Rothstein
2014AP442-43-W Singh v. Kemper
2014AP483-W Ellis v. Meisner
2014AP839-OA Halopka-Ivery v. Walker - Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley dissent.

2014AP476-W Robles-Figueroa v. Baenen

2013AP167-CR State v. Arendt

2012AP2651 State v. Golden

2012AP1956-CR State v. Dahms

2012AP1785-CR State v. Doss
2012AP2120-21-CR State v. Conner
2013AP1239 State v. Kaprelian
2013AP2811-W Washington v. COA

2012AP1094 State v. Phiffer
2012AP2786-CR State v. McKinney
2013AP1160-CR State v. Martin

St. Croix
2013AP2840 Slocum v. State

2014AP89-W Thibodeaux v. Kemper

2012AP1034-CR State v. Maxson
2012AP25943301 Bay Road LLC v. Town of Delavan - Justice David T. Prosser, Jr. did not participate.
2013AP322 Pulera v. Coopman
2013AP515-CR State v. Grant - Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley dissent.
2013AP556 State v. Laudie
2013AP635-CR State v. Lipson
2013AP1202 Lake Delavan Prop. Co. v. City of Delavan - Justice David T. Prosser, Jr. did not participate.
2013AP2148-CRNM State v. Torstenson

2013AP68-CR State v. Klett
2013AP275-CR State v. Geyer

2012AP2058Hegwood v. Town of Eagle Zoning - Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley dissent.
2013AP375 Waukesha Co. v. WERC
2013AP669 Cheryl R. v. Waukesha Co.
2013AP1079-FT 19601 Bluemound v. DOT
2013AP2066-CRNM State v. Wallace
2014AP444-W Singh v. Kemper

2011AP2230-CR State v. Meyers
2012AP2245 Ashker v. Aurora Medical - Justice David T. Prosser, Jr. did not participate.
2012AP2320/2013AP969 George v. Schwarz
2012AP2479 State v. Jace H.
Justice David T. Prosser, Jr. did not participate.
2013AP274-CR State v. Lao
2013AP661-CR State v. St. Mary - Justice Patience Drake Roggensack dissents.
2013AP1274-CR State v. Eckstein
2013AP1355-NM Winnebago Co. v. Mark P.

2013AP1380 Wood Co. v. Linda S.D.
2013AP2814-16 Wood Co. HSD v. Melanie M.

Tom Sheehan
Court Information Officer
(608) 261-6640

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