August 1, 2014

 

wisconsin supreme court

 

table of pending cases

 

Clerk of Supreme Court

Telephone:  (608) 266-1880

Facsimile:  (608) 267-0640

Web Site:  www.wicourts.gov

Wisconsin Supreme Court Case Access:  http://wscca.wicourts.gov

 

            The following table describes pending cases the Supreme Court has accepted on petition for review, bypass, certification and original jurisdiction.

            The cases included for the first time (that is, the most recently accepted cases) are marked with an * next to the case number.  After the Supreme Court decides a case, the date of oral argument or date of submission on briefs is replaced with the date of the Supreme Court decision and abbreviated mandate.  That mandate will generally be listed in the table for two months and then the case will be removed from the table.

            The information in the table, from left to right, is as follows:

·         the case number;

·         an abbreviated caption of the case (case name);

·         a statement of the issue(s);

·         the date the Supreme Court accepted the case;

·         the method by which the case came to the Supreme Court:  REVW = Petition for review, CERT = Certification, CERQ = Certified Question, BYPA = Petition to bypass, ORIG = Original Action, WRIT = Petition for supervisory writ, REMD = Remanded from the U.S. Supreme Court;

·         the date of oral argument or submission on briefs; or the date of the Supreme Court decision and an abbreviated mandate;

·         the Court of Appeals district from which the case came, if applicable; the county;

·         the date of the Court of Appeals decision, if applicable;

·         whether the Court of Appeals decision is published or unpublished, and, if it is published, the citations to the public domain citation and the official reports for the Court of Appeals decision.

            The statement of the issue is cursory and does not purport to be an all-inclusive, precise statement of the issues in the case.  Readers interested in a case should determine the precise nature of the issues from the record and briefs filed with the Supreme Court.

            The following table covers cases accepted and decisions issued through August 1, 2014.  Please direct any comments regarding this table to the Clerk of Supreme Court, P.O. Box 1688, Madison, WI 53701-1688, telephone (608)266-1880.

 

 

Case No.

Caption/Issue(s)

SC Accepted

CA

Dist/

Cty

CA

Decision

2010AP1639-CR

             State v. Erick O. Magett

 

Where a defendant has entered a plea of not guilty by reason of mental disease or defect, may a court summarily refuse to hold a jury trial on the defense if it determines that the defendant will not present sufficient evidence to create a jury question?  Would such circumstances result in harmless error upon appellate review?

03/13/2013

REVW

Affirmed

07/16/2014

2014 WI 67

4

Grant

Unpub.

2010AP3016-CR

             State v. Nicolas Subdiaz-Osorio

 

Whether police may track the real-time location of a cell phone user without a warrant.

Whether a criminal suspect made an unequivocal and unambiguous request for counsel during interrogation.

Whether evidence obtained from cell phone tracking and statements made during interrogation should be suppressed or whether the admission of such evidence and statements constitutes harmless error.

03/13/2013

REVW

Affirmed

07/24/2014

2014 WI 87

2

Kenosha

Unpub.

2011AP1467-CR

      State v. Donyil L. Anderson, Sr.

 

As a matter of law, can a new trial in the interest of justice be granted on the ground the real controversy was not fully tried based on a forfeited challenge to a jury instruction where the erroneous instruction was harmless error?

Was it error to grant a new trial in the interest of justice without an analysis that this is an exceptional case warranting the extraordinary remedy of discretionary reversal?

01/13/2014

REVW

Reversed

07/30/2014

2014 WI 93

4

Rock

Unpub.

2011AP1572

      Julaine K. Appling, et al. v. James E. Doyle, et al.

 

Whether Wis. Stat. ch. 770, the domestic partnership law, violates Art. XIII, § 13 of the Wisconsin Constitution.

06/12/2013

REVW

Affirmed

07/31/2014

2014 WI 96

4

Dane

01/30/2013

Pub.

 2013 WI App 3 345 Wis. 2d 762 826 N.W.2d 666

2011AP1653

     State v. Carlos A. Cummings

 

Whether the sentence imposed was unduly harsh.

Whether there was a valid waiver of a suspect’s Miranda v. Arizona, 384 U.S. 436 (1966) rights when he asked to be taken to his cell during the interrogation?

12/17/2013

REVW

Affirmed

07/24/2014

2014 WI 88

4

Portage

Unpub.

2011AP1673-CRNM

     State v. Cassius A. Foster

 

Whether there had been an intelligent, knowing, and voluntary waiver of counsel [in the defendant’s Oklahoma cases].

Whether the waiver of rights form [used in the Oklahoma cases to waive the defendant’s right to counsel] was valid in demonstrating the defendant’s understanding of the disadvantages of self-representation.

Whether prior convictions should have been admissible to enhance the defendant’s sentence.

Whether a blood draw was performed without a warrant and, if so, whether the warrantless blood draw was constitutional under the U.S. Supreme Court’s decision in Missouri v. McNeely, 569 U.S. __, 133 S. Ct. 1552 (2013).

02/19/2014

REVW

Oral Arg

09/09/2014

4

Monroe

Unpub.

2011AP1803-CR

     State v. General Grant Wilson

 

Did  the defendant satisfy the opportunity requirement for presenting third-party-perpetrator evidence under State v. Denny, 120 Wis. 2d 614, 357 N.W.2d 12 (Ct. App. 1984)? 

If the answer to the first question is "yes," was the error in excluding the Denny evidence harmless beyond a reasonable doubt?

02/19/2014

REVW

Oral Arg

09/04/2014

1

Milwaukee

Unpub.

2011AP1956

     James E. Kochanski v. Speedway Superamerica, LLC

 

Did the trial court err in giving Wis JI-Civil 410 (absent witness) instructions to a jury under the circumstances of the case?

02/12/2013

REVW

Affirmed

07/17/2014

2014 WI 72

1

Milwaukee

Unpub.

2011AP2424-CR

(consolidated with

  2012AP918,

  State v. Seaton)

       State v. Nancy J. Pinno

 

Whether the failure to object at trial to a Sixth Amendment public-trial violation should be analyzed on appeal as a “forfeiture” or a “waiver” of the issue.

02/25/2013

CERT

Affirmed

07/18/2014

2014 WI 74

2

Fond du Lac

--

2011AP2548-CR

      State v. Luis M. Rocha-Mayo

 

Whether the state should be allowed to introduce into evidence, during an OWI prosecution, the results of a qualitative breath test (PBT), not approved for evidential use in Wisconsin, because it was administered by an individual who was not in law enforcement.

Whether such a PBT result should be accorded a prima facie effect of intoxication.

Whether an emergency room doctor should be permitted to give testimony as to an ultimate fact (intoxication) which embraces a legal concept for which a definitional instruction is required.

11/21/2013

REVW

Affirmed

07/11/2014

2014 WI 57

2

Kenosha

Unpub.

2011AP2597

      Associated Bank N.A. v. Jack W. Collier, et al.

 

Is a creditor’s right to obtain a common law creditor’s/receiver’s lien against a judgment debtor’s personal property conditioned upon docketing the judgment in the Judgment and Lien Docket under Wis. Stat. § 806.10 (1)?

Is a judgment creditor entitled to relief, in the form of a declaration, that its judgment is effectively docketed in the Judgment and Lien Docket when a clerk accepts the docketing fee but fails to record the judgment in the Judgment and Lien Docket?

04/18/2013

REVW

Modified and affirmed

07/15/2014

2014 WI 62

2

Waukesha

Unpub.

2011AP2774

       Attorney’s Title Guaranty Fund, Inc. v. Town Bank

 

Whether an enforceable creditors lien attaches to personal property acquired after a Wis. Stats. ch. 816 supplementary proceeding has been held.

Whether the fact that the supplemental commissioner’s order and proof of service were not filed with the clerk of court rendered the creditor’s lien unenforceable.

05/13/2013

REVW

Reversed

07/15/2014

2014 WI 63

2

Waukesha

01/30/2013

Pub.

2013 WI App 6

345 Wis. 2d 705

827 N.W.2d 116

2011AP2833-CR

       State v. Jacqueline R. Robinson

 

Did a trial court’s amended sentence for criminal convictions violate the double jeopardy clause of the state and federal constitutions?  (See State v. Burt, 2000 WI App 126, 237 Wis. 2d 610, 614 N.W.2d 42).

02/12/2013

REVW

Affirmed

06/10/2014

2014 WI 35

1

Milwaukee

Unpub.

2011AP2868-CR

     State v. Clayton W. Williams

 

Whether Wis. Stat. § 346.65(2)(am)6 imposes a mandatory minimum period of confinement for OWI seventh offense and greater.

Does the statute prohibit the imposition of probation in such cases?

11/21/2013

REVW

Reversed

07/15/2014

2014 WI 64

4

Monroe

06/26/2013

Pub.

2013 WI App 74

350 Wis. 2d 311

833 N.W.2d 846

2011AP2902

         Board of Regents – UW System v. Jeffrey S. Decker

 

Whether there is evidence in the record to show that a person engaged in “acts which harass or intimidate another person and which serve no legitimate purpose” to support a petition for injunctive relief under Wis. Stat. § 813.125(4)(a).  See Bachowski v. Salamone, 139 Wis. 2d 397, 408, 407, N.W.2d533 (1987).

06/14/2013

REVW

Reversed, remanded

07/16/2014

2014 WI 68

 

4

Dane

Unpub.

2011AP2907-CR

      State v. Antonio D. Brown

 

Whether an officer had probable cause under the Fourth Amendment to stop a vehicle where the vehicle’s tail lamp was sixty-six percent functional and in “good working order” as required under Wis. Stat. § 347.13(1).

Whether Arizona v. Gant, 556 U.S. 332 (2009) applies to the fact situation presented in this case and, if so, how?

10/15/2013

REVW

Affirmed

07/16/2014

2014 WI 69

1

Milwaukee

02/26/2013

Pub.

2013 WI App 17

346 Wis. 2d 98

827 N.W.2d 903

*2011AP2956-CR

     State v. Gary Monroe Scull

 

Whether the good faith exception to the exclusionary rule applies where the police obtained a search warrant in good faith – although based, in part, on a prior illegal search with a drug-sniffing dog.  See State v. Dearborn, 2010 WI 84, 327 Wis. 2d 252, 786 N.W.2d 97 and Florida v. Jardines, 569 U.S. ___, 133 S. Ct. 1409, 1417 – 18 (March 26, 2013).

05/22/2014

REVW

Oral Arg

10/02/2014

1

Milwaukee

02/26/2014

Pub.

 2014 WI App 17

 352 Wis. 2d 733

 843 N.W.2d 859

2011AP3007-CR

     State v. Derik J. Wantland

 

When a passenger asks “got a warrant for that?” before an officer opens a briefcase found in the hatchback of a car, has the driver’s general consent to search the car been limited?

11/21/2013

REVW

Affirmed

07/11/2014

2014 WI 58

2

Sheboygan

03/27/2013

Pub.

2013 WI App 36

346 Wis. 2d 680

828 N.W. 2d 885

2012AP46-CR

     State v. Jimothy A. Jenkins

 

Was a defendant denied his constitutional rights to counsel when his attorney failed to investigate, subpoena, and call to testify a neutral eyewitness who may have provided exculpatory evidence?

May a postconviction court rely on a finding of a lack of credibility to conclude that trial counsel’s failure to call a witness to testify at trial did not constitute ineffective assistance of counsel?

12/16/2013

REVW

Reversed and remanded

07/11/2014

2014 WI 59

1

Milwaukee

Unpub.

2012AP55

     State v. Andres Romero-Georgana

 

Whether postconviction counsel provided ineffective assistance by challenging the circuit court’s sentencing decision rather than raising a plea withdrawal claim based on the circuit court’s failure to orally advise the defendant of the deportation consequences of his no-contest plea, as required by Wis. Stat. § 974.08(1)I.

 

12/19/2013

REVW

Affirmed

07/23/2014

2014 WI 83

3

Brown

Unpub.

2012AP122

     Anthony Gagliano & Co., Inc. v. Openfirst, LLC, et al.

 

May a landlord recover from its tenant’s subtenant (or more remote subtenants) all future rent that the immediate tenant promised to pay, regardless of the terms of the transfer from tenant to subtenant or the amount of time that the subtenant occupied the premises?

Whether a tenant assigned the lease to subsequent occupiers of the premises, enabling the landlord to recover future rent from the tenant’s assignees, or whether subsequent occupiers of the premises were subtenants of the first tenant and the landlord cannot recover future rent from the subtenants.

Whether the appellate court should have reversed a directed verdict ruling and remanded the action so that a lease extension issue could be determined as a matter of fact by a jury?

09/18/2013

REVW

Affirmed in part, reversed in part, remanded

07/15/2014

2014 WI 65

1

Milwaukee

02/26/2013

Pub.

2013 WI App 19

346 Wis. 2d 47

828 N.W.2d 268

2012AP150-CR

     State v. Jessica A. Nellessen

 

Must a criminal defendant who wants to compel the state to disclose the identity of an informer make a preliminary showing that the informer could give specifically delineated testimony that might create a reasonable doubt about the defendant’s guilt by supporting the asserted theory of defense?

10/15/2013

REVW

Reversed and remanded

07/23/2014

2014 WI 84

4

Wood

04/24/2013

Pub.

2013 WI App 46

347 Wis. 2d 537

830 N.W.2d 266

2012AP183

     Randy L. Betz v. Diamond Jim’s Auto Sales

 

Is attorney consent required for settlement of fee-shifting claims?

Whether the language of the settlement agreement in this case, which was entered into by the parties without participation of either party’s counsel, was a valid, unambiguous, binding contract that released  the auto seller of any further obligation in connection with the auto buyer’s claims, including responsibility for the auto buyer’s attorney’s fees.

Whether the settlement agreement in this case violates public policy and is therefore unenforceable.

05/10/2013

REVW

Reversed

07/15/2014

2014 WI 66

 

1

Milwaukee

11/29/2012

Pub.

2012 WI App 131

344 Wis. 2d 681

825 N.W.2d 508

 

2012AP320

        Sharon R. Waranka v. Wadena Insurance Company, et al.

 

May the court apply Wis. Stat. § 895.04 to the plaintiff’s wrongful death action to define the class of beneficiaries, the limitation on non-economic damages, and to determine who can bring an action for wrongful death, where the accident causing death occurred in another state, which precludes application of Wis. Stat. § 895.03?  May Wis. Stat. § 895.04 be applied to a case without also applying Wis. Stat. § 895.03, which creates a cause of action for wrongful death where the death occurred in Wisconsin?

Is conflict of law analysis required in a wrongful death action, where a death occurred in another state but where most of the relevant parties and the relatives of the decedent are domiciled in Wisconsin or brought into the lawsuit under Wisconsin’s direct action statute?

11/20/2013

REVW

Affirmed

06/03/2014

2014 WI 28

2

Ozaukee

05/29/2013

Pub.

2013 WI App 56

348 Wis. 2d 111

832 N.W.2d 133

2012AP336-CR

        State v. Bobby L. Tate

 

Whether obtaining a cell phone’s location constitutes a “search” within the meaning of the Fourth Amendment.

If so, what probable cause standard applies before police can obtain location information?

Whether statutory authorization is necessary before a court can permit a cell phone location search, and whether such statutory authorization exists.

06/12/2013

REVW

Affirmed

07/24/2014

2014 WI 89

1

Milwaukee

Unpub.

2012AP337-CR

     State v. Muhammad Sarfraz

 

Whether the explicit details of alleged prior consensual sexual contact between the alleged victim and the defendant were admissible under Wis. Stat. § 972.11(2)(b), an exception to Wisconsin’s Rape Shield Law. 

If the trial court erroneously exercised its discretion when it excluded the prior sex acts evidence, was the error harmless?

09/17/2013

REVW

Reversed and remanded

07/22/2014

2014 WI 78

1

Milwaukee

05/29/2013

Pub.

2013 WI App 57

348 Wis. 2d 57

832 N.W. 2d 346

2012AP378-W

    Lorenzo D. Kyles v. William Pollard

 

What is the appropriate procedure to follow when challenging trial counsel’s alleged failure to file a notice of intent to pursue postconviction relief?

12/17/2013

REVW

Reversed and remanded

06/17/2014

2014 WI 38

1

Milwaukee

--

2012AP393-CR

    State v. Cortez Lorenzo Toliver

 

Does the general rule that a defect of subject matter jurisdiction may be raised at any time conflict with the appellate rule that a party is not permitted to raise an argument for the first time on appeal?

Where a court does not make a specific probable cause finding required by Wis. Stat. § 970.032, does the court lose subject matter jurisdiction over the criminal proceeding?

12/17/2013

REVW

Affirmed

07/23/2014

2014 WI 85

2

Racine

Unpub.

2012AP520-CR

    State v. Adrean L. Smith

 

Whether, during custodial interrogation, police violated a suspect’s right to remain silent by continuing to question him after he stated, “I don’t know nothing about this stuff, so I don’t want to talk about this.”

12/17/2013

REVW

Affirmed

07/24/2014

2014 WI 88

1

Milwaukee

Unpub.

2012AP523-CR

     State v. Alvernest Floyd Kennedy

 

Were field sobriety tests necessary to establish probable cause to arrest the defendant for Operating a Motor Vehicle While Intoxicated?

Was the evidence obtained as a result of the warrantless blood draw a violation of the defendant’s right to be free from unreasonable searches and seizures under the Fourth and Fourteenth Amendments to the United States Constitution and Article I, § 11 of the Wisconsin Constitution?

Whether the blood draw was performed without a warrant and, if so, whether the warrantless blood draw was constitutional under the U.S. Supreme Court’s decision in Missouri v. McNeely, 569 U.S. ___, 133 S. Ct. 1552 (2013).

02/19/2014

REVW

Oral Arg

09/09/2014

1

Milwaukee

Unpub.

2012AP580

    Russell Adams v. Northland Equipment Company, Inc.

 

May the trial court compel the plaintiff in an action for the recovery of personal injuries brought against the tortfeasor and its insurance company, to accept the settlement to which the plaintiff objects upon the motion of a worker’s compensation insurance carrier that has paid worker’s compensation benefits to the plaintiff arising out of the same occurrence for which the plaintiff has brought the common law action?

Is it a violation of the Wisconsin Constitution, Article I, Section 5, Right to Trial by Jury, or Article I, Section 9, Right to Remedy, to compel a plaintiff in an action for the recovery of personal injuries brought against the tortfeasor and its insurance company, to accept the settlement to which the plaintiff objects upon the motion of a worker’s compensation carrier that has paid worker’s compensation benefits to the plaintiff arising out of the same occurrence for which the plaintiff has brought the common law action?

If a court may compel a plaintiff to accept a settlement offer pursuant to the authority to resolve disputes under Wisconsin Statutes § 102.29, must the court require a hearing compliant with due process, including an opportunity to present witnesses, to cross-examine witnesses and the other elements of a hearing to guarantee due process?

Where a worker’s compensation carrier is seeking to compel a plaintiff to accept a proposed settlement pursuant to Wisconsin Statutes § 102.29, what is the standard of the burden of proof required:  by the clear and convincing evidence, by the preponderance of the evidence and/or by another standard?

In resolving a dispute between a plaintiff/injured employee and the worker’s compensation carrier where the worker’s compensation carrier has brought a motion to compel the plaintiff to accept a settlement under the authority of Wisconsin Statutes § 102.29, such settlement being offered by the tortfeasor and/or its liability insurance carrier, is it error to allow a tortfeasor and/or its liability insurance carrier to participate in the presentation of evidence or argument in support of such motion?

11/20/2013

REVW

Affirmed

07/22/2014

2014 WI 79

4

Rock

Unpub.

2012AP584-AC

    League of Women Voters of Wisconsin Education Network,

    Inc. v. Scott Walker, et al.

 

Do the portions of 2011 Wisconsin Act 23 require constitutionally qualified and registered voters to display a specified form of government-issued photo identification at the polling place as a prerequisite to voting constitute an impermissible additional qualification to vote in violation of Wis. Const. Art. III, § 1?

Do the portions of 2011 Wisconsin Act 23 require constitutionally qualified and registered voters to display a specified form of government-issued photo identification at the polling place as a prerequisite to voting exceed legislative authority under Wis. Const. Art. III, § 2?

Did the petitioners have standing to bring this action challenging the facial constitutionality of the Voter ID provisions?

11/20/2013

REVW

Modified, affirmed, remanded

07/31/2014

2014 WI 97

4

Dane

06/26/2013

Pub.

2013 WI App 77

348 Wis. 2d 714

834 N.W.2d 393

2012AP597

     Scott Partenfelder, et al. v. Steve Rohde, et al.

 

Whether the Federal Railroad Safety Act (“FRSA”) preempts plaintiffs’ state law negligence and safe-place claims, or whether these claims fall within the “specific, individual hazard” exception to FRSA preemption.

09/17/2013

REVW

Affirmed in part, reversed in part, remanded

07/22/2014

2014 WI 80

1

Milwaukee

04/24/2013

Pub.

2013 WI App 48

347 Wis. 2d 385

830 N.W.2d115

2012AP641

     Julie A. Augsburger v. Homestead Mutual Insurance Company

 

As a matter of law, did a tortfeasor harbor the subject dogs pursuant to Wis. Stat. § 174.001(5) and was he an owner of such dogs for purposes of Wis. Stat. § 174.02? 

02/19/2014

REVW

Oral Arg

09/04/2014

2

Winnebago

09/25/2013

Pub.

2013 WI App 106

350 Wis. 2d 486

838 N.W.2d 88

2012AP858

      Vicki L. Blasing v. Zurich American Ins. Co., et al.

 

Does the omnibus statute, Wis. Stat. § 632.32(3)(a), require that a liability insurer defend and indemnify a tortfeasor where the alleged negligence caused injury to the named insured person?

06/13/2013

REVW

Affirmed

07/17/2014

2014 WI 73

4

Jefferson

02/26/2013

Pub.

 2013 WI App 27

346 Wis. 2d 30

827 N.W.2d 909

2012AP918

 (consolidated with

  2011AP2424-CR,

  State v. Pinno)

      State v. Travis J. Seaton

 

Whether the failure to object at trial to a Sixth Amendment public-trial violation should be analyzed on appeal as a “forfeiture” or a “waiver” of the issue.

02/25/2013

CERT

Affirmed

07/18/2014

2014 WI 74

2

Fond du Lac

--

2012AP1047

    Asma Masri v. State of Wisconsin Labor and Industry Review

 

Whether de novo review of a statute’s underlying purpose is a necessary judicial function, regardless of the level of deference granted to an administrative agency’s interpretation of a statute.

Whether a full-time health care intern with full access to HIPAA (Health Insurance Portability and Accountability Act)-protected patient medical records and an “all-access” badge to medical facilities is protected under the HCWPA (Health Care Worker Protection Act).

11/13/2013

REVW

Affirmed

07/22/2014

2014 WI 81

 

1

Milwaukee

05/29/2013

Pub.

2013 WI App 62

348 Wis. 2d 1

832 N.W.2d 139

 

2012AP1307-CR

    State v. Jeremiah J. Purtell

 

Whether it was appellate error in reversing a trial court’s decision based on a sua sponte argument and factual determinations that were not presented to the trial court.

11/20/2013

REVW

Reversed

08/01/2014

2014 WI 101

2

Washington

Unpub.

2012AP1593-CR

     State v. Michael R. Tullberg

 

Whether exigent circumstances justified a warrantless blood draw.

02/19/2014

REVW

Oral Arg

09/09/2014

3

Shawano

Unpub.

2012AP1644

    Rachelle R. Jackson v. Wisconsin County Mut. Insurance

    Corp.

Did a deputy sheriff qualify as an underinsured motorist (UIM) under an insurer’s policy, based on her “use” of a vehicle, when she was hit by the insured’s vehicle while walking in front of it in a pedestrian crosswalk, and when she was not at the time manipulating, controlling, or in any other way connected to the vehicle at the time she was hit, because she intended to direct other vehicles to allow the insured’s vehicle to merge into traffic?

If a deputy sheriff was “using” the insured’s vehicle, is she entitled to UIM benefits under the insurer’s policy based on her use of the UIM vehicle that injured her?

11/26/2013

REVW

Reversed

06/10/2014

2014 WI 36

1

Milwaukee

05/29/2013

Pub.

2013 WI App 65

348 Wis. 2d 203

832 N.W.2d 163

2012AP1652

    Milwaukee Branch of the NAACP, et al.  v. Scott Walker, et al.

 

What is the constitutional validity of Act 23’s photo identification requirements under the suffrage provisions in Wis. Const. art. III?

Oral Arg

02/25/2014

BYPA

Reversed, injunctions vacated

07/31/2014

2014 WI 98

4

Dane

--

2012AP1769-CR

 

(Consolidated with

2012AP1770-CR and 2012AP1863-CR)

    State v. Martin P. O’Brien

 

Must hearsay admitted at a preliminary hearing under newly enacted Wis. Stats. § 970.038 meet a threshold level of reliability before a court can use it to find probable cause?

At a preliminary hearing, can the State satisfy its burden of showing the higher degree of probable cause needed to bind over a felony for trial by relying solely on a hearsay witness who offers the criminal complaint, for which a lesser degree of probable cause is required?

Can a court use the recently enacted Wis. Stats § 970.038 to limit defense cross-examination of a hearsay witness to the question of whether that witness heard the hearsay, rather than the plausibility of the out-of-court declarant’s account of the underlying offense?

Following the recent enactment of Wis. Stats § 970.038, before the defendant can call his own witness at a preliminary hearing, must the defense make an offer of proof that the testimony will be dispositive to defeat probable cause, rather than simply relevant to the plausibility of the charged offense?

Did the preliminary hearing court’s application of Wis. Stats § 970.038, which admitted hearsay and precluded the defendant from calling the out-of-court declarant to test his ability to see, hear and remember the relevant facts pertaining to his story, violate the defendant’s right to due process?

Does a defendant’s constitutional right to confront his accusers apply at an adversary-type preliminary hearing such as that granted by Wisconsin statutes?

Is a defendant’s right to the effective assistance of counsel at a preliminary hearing denied when the state’s only evidence offered is the criminal complaint and the defendant is not permitted to cross-examine witnesses with personal knowledge?

Whether § 970.038 of the Wisconsin Statutes unconstitutionally deprives a defendant of due process of law.

12/05/2013

REVW

Affirmed

07/09/2014

2014 WI 54

2

Walworth

08/30/2013

Pub.

2013 WI App 97

349 Wis. 2d 667

836 N.W.2d 840

 

2012AP1770-CR

 

(Consolidated with

2012AP1769-CR

And 2012AP1863-CR)

    State v. Kathleen M. O’Brien

 

Must hearsay admitted at a preliminary hearing under newly enacted Wis. Stats. § 970.038 meet a threshold level of reliability before a court can use it to find probable cause?

At a preliminary hearing, can the State satisfy its burden of showing the higher degree of probable cause needed to bind over a felony for trial by relying solely on a hearsay witness who offers the criminal complaint, for which a lesser degree of probable cause is required?

Can a court use the recently enacted Wis. Stats § 970.038 to limit defense cross-examination of a hearsay witness to the question of whether that witness heard the hearsay, rather than the plausibility of the out-of-court declarant’s account of the underlying offense?

Following the recent enactment of Wis. Stats § 970.038, before the defendant can call his own witness at a preliminary hearing, must the defense make an offer of proof that the testimony will be dispositive to defeat probable cause, rather than simply relevant to the plausibility of the charged offense?

Did the preliminary hearing court’s application of Wis. Stats § 970.038, which admitted hearsay and precluded the defendant from calling the out-of-court declarant to test his ability to see, hear and remember the relevant facts pertaining to his story, violate the defendant’s right to due process?

Does a defendant’s constitutional right to confront his accusers apply at an adversary-type preliminary hearing such as that granted by Wisconsin statutes?

Is a defendant’s right to the effective assistance of counsel at a preliminary hearing denied when the state’s only evidence offered is the criminal complaint and the defendant is not permitted to cross-examine witnesses with personal knowledge?

Whether § 970.038 of the Wisconsin Statutes unconstitutionally deprives a defendant of due process of law.

12/05/2013

REVW

Affirmed

07/09/2014

2014 WI 54

2

Walworth

08/30/2013

Pub.

2013 WI App 97

349 Wis. 2d 667

836 N.W.2d 840

2012AP1812

    County of Grant v. Daniel A. Vogt

 

Does an officer who approaches a vehicle without probable cause or reasonable suspicion that a violation of the law has been committed, and then knocks on the window and motions for the driver to roll down his window, unreasonably seize the driver?

10/15/2013

REVW

Reversed

07/18/2014

2014 WI 76

 

4

Grant

Unpub.

2012AP1818-CR

     State v. Ramon G. Gonzalez

 

Whether ordering a defendant to open his mouth and reveal his teeth to the jury violates the Fifth Amendment right against self-incrimination.

02/19/2014

REVW

Oral Arg

09/10/2014

1

Milwaukee

Unpub.

2012AP1863-CR

 

(Consolidated with

2012AP1769-CR

and 2012AP1770-CR)

    State v. Charles E. Butts

 

Must hearsay admitted at a preliminary hearing under newly enacted Wis. Stats. § 970.038 meet a threshold level of reliability before a court can use it to find probable cause?

At a preliminary hearing, can the State satisfy its burden of showing the higher degree of probable cause needed to bind over a felony for trial by relying solely on a hearsay witness who offers the criminal complaint, for which a lesser degree of probable cause is required?

Can a court use the recently enacted Wis. Stats § 970.038 to limit defense cross-examination of a hearsay witness to the question of whether that witness heard the hearsay, rather than the plausibility of the out-of-court declarant’s account of the underlying offense?

Following the recent enactment of Wis. Stats § 970.038, before the defendant can call his own witness at a preliminary hearing, must the defense make an offer of proof that the testimony will be dispositive to defeat probable cause, rather than simply relevant to the plausibility of the charged offense?

Did the preliminary hearing court’s application of Wis. Stats § 970.038, which admitted hearsay and precluded the defendant from calling the out-of-court declarant to test his ability to see, hear and remember the relevant facts pertaining to his story, violate the defendant’s right to due process?

Does a defendant’s constitutional right to confront his accusers apply at an adversary-type preliminary hearing such as that granted by Wisconsin statutes?

Is a defendant’s right to the effective assistance of counsel at a preliminary hearing denied when the state’s only evidence offered is the criminal complaint and the defendant is not permitted to cross-examine witnesses with personal knowledge?

Whether § 970.038 of the Wisconsin Statutes unconstitutionally deprives a defendant of due process of law.

12/05/2013

REVW

Affirmed

07/09/2014

2014 WI 54

2

Walworth

08/30/2013

Pub.

2013 WI App 97

349 Wis. 2d 667

836 N.W.2d 840

2012AP1869

    Richard S. Wilcox v. Estate of Ralph Hines

 

May a person establish possession of property “under claim of title”, as required under Wisconsin’s 20-year adverse possession statute, Wis. Stat. §893.25, by use alone where the possessor expressly disclaims ownership of the property?

Is the fact that permission to occupy the property was sought and granted by a person erroneously thought to be the true owner irrelevant to the question of whether the possessor occupies the property under claim of title?

09/17/2013

REVW

Reversed

07/11/2014

2014 WI 60

4

Sauk

05/29/2013

Pub.

2013 WI App 68

348 Wis. 2d 124

831 N.W.2d 791

2012AP1967

    Data Key Partners v. Permira Advisors LLC, et al.

 

Must a shareholder alleging breach of fiduciary duty against a corporation’s directors plead facts that, if true, would satisfy the conditions for director liability required by the Business Judgment Rule and the Director Immunity Statute, Wis. Stat. § 180.0828, in order to state a claim upon which relief can be granted?

May being compelled to sell one’s shares in a publicly traded corporation as a result of a duly authorized merger constitute legal harm?

Can minority shareholders in a corporation state a claim against the majority for breach of fiduciary duty where the majority allegedly facilitated, and thereafter voted its shares in favor of a merger that paid the minority more per share than the majority received?

12/16/2013

REVW

Reversed

07/23/2014

2014 WI 86

4

Wood

09/25/2013

Pub.

2013 WI App 107

350 Wis. 2d 347

837 N.W.2d 624

2012AP2044-CR

     State v. Myron C. Dillard

 

Can a defendant demonstrate manifest injustice warranting plea withdrawal where (a) the parties later realized that a penalty enhancer dropped as part of the bargain could not apply to the defendant, and (b) the defendant admitted his dissatisfaction with his sentence compelled his motion for plea withdrawal?

Does a defendant demonstrate prejudice based on counsel’s failure to recognize that a dropped penalty enhancer could not have applied to him?

02/19/2014

REVW

Oral Arg

09/04/2014

2

Winnebago

09/25/2013

Pub.

2013 WI App 108

350 Wis. 2d 331

838 N.W.2d 112

2012AP2067

    Madison Teachers, Inc. v. Scott Walker

 

Whether the following provisions of 2011 Wis. Act 10 are unconstitutional:

The provision prohibiting collective bargaining between municipal employers and the certified representatives for municipal general employee bargaining units on all subjects except base wages.  Wis. Stat. § 111.70(4)(mb)1.

The provisions limiting negotiated base wage increases to the increase in the Consumer Price Index, unless a higher increase is approved by voter referendum.  Wis. Stat. §§ 111.70(4)(mb)2., 66.0506, and 118.245.

The provisions prohibiting “fair share” agreements that previously required all represented employees to pay a proportionate share of the costs of collective bargaining and contract administration.  Wis. Stat. § 111.70(1)(f) and the third sentence of Wis. Stat. § 111.70(2).

The provision prohibiting municipal employers from deducting union dues from the wages of municipal employees.  Wis. Stat. § 111.70(3g).

The provision requiring annual recertification elections of the representatives of all bargaining units, requiring 51% of the votes of the bargaining unit members (regardless of the number of members who vote), and requiring the commission to assess costs of such elections.  Wis. Stat. § 111.70(4)(d)3.

06/14/2013

CERT

Reversed

07/31/2014

2014 WI 99

 

4

Dane

--

2012AP2085

    Kelli Brandenburg v. Robert Luethi

 

Does Desaire v. Solomon Valley Co-Op, 1995 U.S. Dist. LEXIS 14523 (D. Kan. Sept. 14, 1995) set forth an appropriate standard for evaluating whether a defendant can be liable for his/her independent contractor’s alleged negligence?

Should the “inherently dangerous” standard for triggering a principal’s vicarious liability for an independent contractor’s negligence apply to individuals who do not regularly have employees or hire independent contractors?

10/21/2013

REVW

Affirmed

06/12/2014

2014 WI 37

3

Trempealeau

Unpub.

2012AP2140-CR

    State v. Angelica C. Nelson

 

If a circuit court prohibits a defendant in a criminal case from testifying in her own defense, does Wisconsin case law provide that the defendant is automatically entitled to a new trial?

12/16/2013

REVW

Affirmed

07/16/2014

2014 WI 70

3

Eau Claire

Unpub.

2012AP2170

    State v. Joseph J. Spaeth

 

Wisconsin Stat. § 980.02(1m) and (2) requires that a commitment petition be filed “before the person is released or discharged” and alleges that a person has been convicted of a sexually violent offense.  Does § 980.02 also require that the commitment petition be filed before the person is released or discharged from a sentence that was imposed for the same sexually violent offense that is alleged in the petition as the predicate offense (See State v. Gilbert, 2012 WI 72, ¶51, 342 Wis. 2d 82, 816 N.W.2d 215)?

11/26/2013

CERT

Reversed, remanded

07/16/2014

2014 WI 71

2

Winnebago

--

2012AP2185-CR

    State v. James R. Hunt

 

Whether it was error for the trial court to prevent a witness from testifying that he did not send the defendant illegal materials.

12/17/2013

REVW

Reversed

08/01/2014

2014 WI 102

4

Jefferson

Unpub.

2012AP2402

    Hailey Marie-Joe Force, et al. v. American Family Mutual

    Insurance Company, et al.

 

Can the minor children of a man killed in a car accident recover for wrongful death under Wis. Stat. § 895.04 when there is a surviving spouse, but that surviving spouse has been estranged from the decedent for over ten years, thus precluding any recovery by the spouse from which to set aside the children’s share?

If the statute does not allow the children to recover absent a recovery by the surviving spouse, does the statute violate the Equal Protection Clause of the United States Constitution by impermissibly differentiating between minor dependent children by conditioning their recovery on the viability of the surviving spouse’s claim? 

Is there a rational basis for providing recovery to minor children whose deceased parent’s surviving spouse has a viable claim and denying recovery to those whose deceased parent’s surviving spouse does not?

10/21/2013

CERT

Reversed

07/22/2014

2014 WI 82

2

Waukesha

--

*2012AP2466

   Suzanne Stoker, et al. v. Milwaukee County, et al.

 

Whether a 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 Loth v. City of Milwaukee, 2008 WI 129, 315 Wis. 2d 35, 758 N.W.2d 766 and  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.

Whether consent by a county employee’s union is sufficient consent to a prospective reduction in a retirement benefit, under Laws of 1945, Ch. 138 § 2(a).

05/23/2014

REVW

Oral Arg

10/01/2014

1

Milwaukee

12/18/2013

Pub.

2013 WI App 144

352 Wis. 2d 125

841 N.W.2d 532

2012AP2490

     Wisconsin Federation of Nurses and Health Professionals v.

     Milwaukee County

 

Was it error to conclude that an ordinance stating the benefit in issue was a "unilateral" contract because the offer (here, payment of Medicare Part B premiums . . . ) cannot be accepted without the happening of something down the road that may or may not happen—retirement. (See Loth v. City of Milwaukee, 2008 WI 129, 315 Wis. 2d 35, 758 N.W.2d 766)

Did the ordinance providing for payment of Medicare Part B premiums unconditionally guarantee employees that the County would not diminish or impair the employee's right to that particular retiree health insurance benefit before the employee retired and became otherwise eligible to receive it?

Did the County breach a contract by amending an ordinance to modify a retiree health insurance benefit which amendment could only apply to the affected employees who had not yet retired and become eligible for that benefit?

02/19/2014

REVW

Oral Arg

10/01/2014

1

Milwaukee

11/20/2013

Pub.

2013 WI App 134

351 Wis. 2d 421

839 N.W.2d 869

2012AP2499

    Eileen W. Legue v. City of Racine

 

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

11/26/2013

CERT

Reversed and remanded

07/25/2014

2014 WI 92

2

Racine

--

2012AP2513-CR

    State v. Raphfeal Lyfold Myrick

 

Did the court of appeals amend a statutory rule of evidence (Wis. Stat. § 904.10) making it applicable in a situation that was excluded by the supreme court when the supreme court promulgated the rule?

01/13/2014

REVW

Affirmed

07/10/2014

2014 WI 55

1

Milwaukee

10/30/2013

Pub.

2013 WI App 123 351 Wis. 2d 32 839 N.W.2d 129

2012AP2521

     Frederick W. Preisler v. Kuettel’s Septic Service, LLC

 

Does the decision in this case conflict with the court of appeals' decision in Wilson Mut. Ins. Co. v. Falk, Nos. 2013AP691 and 2013AP776, 2014 WI App 10, 2013 WL 6480760, pet. for review granted?

Is there a difference between the definition of "pollutant" in Wilson v. Falk and the definition of "pollutant" in this case?

Are the reasonable expectations of farmers and septage haulers different concerning the value of manure used as fertilizer?

Is applying septage, as an organic fertilizer, to farmland considered to be a normal, everyday activity for farmers and septage haulers?

Does septage, which farmers and septic companies use to apply to farmland as fertilizer, unambiguously constitute a "pollutant" as it is defined under a standard pollution exclusion provision in an insurance policy?

04/17/2014

REVW

Oral Arg

09/12/2014

3

Outagamie

Unpub.

2012AP2557-CR

     State v. William F. Bokenyi

 

Did a prosecutor’s sentencing argument breach a plea agreement by undermining the agreed-upon sentencing recommendation?

Was defense counsel ineffective for failing to object to the alleged breach of the plea agreement?

Should the court overrule the court of appeals’ decision in State v. Sprang, 2004 WI App 121, 274 Wis. 2d 784, 683 N.W.2d 522?

12/06/2013

REVW

Reversed

07/11/2014

2014 WI 61

3

Polk

Unpub.

*2012AP2566

    Sohn Manufacturing Inc. v. LIRC

 

May the state inspect private workplaces for violations of the Wisconsin Safe Place Statute (Wis. Stat. § 101.11(1)) or federal Occupational Safety and Health Administration (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 permissible under 29 U.S.C. § 653(b)(4)?

Does Wis. Stat. § 101.01(15)(a) prohibit state action in these circumstances?  

05/23/2014

REVW

Oral Arg

09/23/2014

2

Sheboygan

09/25/2013

Pub.

2013 WI App 112

 350 Wis. 2d 469

 838 N.W.2d 131

2012AP2784

    118th Street Kenosha, LLC v. Wisconsin Department of

     Transportation

 

When valuing a temporary limited easement (TLE) under Wis. Stat. § 32.09(6g), can an appraiser testify about alleged permanent severance damages for the period of time beyond the term of the TLE?

When valuing a TLE, can a landowner introduce evidence on damages caused by other aspects/phases of a project?

When exercising a police power, does the State need to compensate an abutting landowner for elimination of a connection to a highway where a landowner did not have a legal right to access that highway at the location of the connection?

03/18/2014

REVW

Oral Arg

09/10/2014

2

Kenosha

12/18/2013

Pub.

2013 WI App 147

352 Wis. 2d 183

841 N.W. 2d 568

*2013AP127-CR

    State v. Raheem Moore

 

Did a law enforcement officer’s decision to turn off a recorder violate the mandate of State v. Jerrell C.J., 2005 WI 105, 283 Wis. 2d 145, 699 N.W.2d 110 and Wis. Stat. § 938.195, thus requiring suppression of a juvenile’s unrecorded statement and his subsequent recorded statement?

Was the defendant's inculpatory statement made voluntarily?

05/22/2014

REVW

Oral Arg

09/23/2014

1

Milwaukee

02/26/2014

Pub.

2014 WI App 19

352 Wis. 2d 675

 ___ N.W.2d ___

 

2013AP221

    Dow Family, LLC v. PHH Mortgage Corporation

 

Whether the common law doctrine of equitable assignment, the Uniform Commercial Code or both exempt assignments of real estate mortgages from the Statute of Frauds, with the result that a mortgage automatically accompanies a mortgage note upon negotiation or transfer of the latter without any written assignment of mortgage or recording of any document being necessary.

Whether the purchaser’s good faith in purchasing the property is relevant to the right to foreclose.

12/16/2013

REVW

Affirmed, remanded to circuit court

07/10/2014

2014 WI 56

3

Barron

09/25/2013

Pub.

2013 WI App 114

350 Wis. 2d 411

838 N.W.2d 119

*2013AP225

    State v. Michael Alger

 

Where a Chapter 980 petitioner files a petition for discharge after the effective date of amendments to Wis. Stat. § 907.02(1) (2011-12); whether those amendments apply to the proceedings on those petitions or do not because the "action" was "commenced" with the filing of the petition for commitment in 2004?

Does Wis. Stat. § 907.02(1) violate the petitioner’s rights to Equal Protection if it is deemed to be inapplicable to discharge petitions filed after the effective date of the statute?

05/23/2014

REVW

Oral Arg

10/02/2014

3

Outagamie

12/18/2013

Pub.

2013 WI App 148

 352 Wis. 2d 145

 841 N.W.2d 329

*2013AP298-CR

    State v. Richard H. Harrison

 

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.  Or is the error harmless under a harmless error analysis?

Whether a defendant’s objection to competency of a judge 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.

05/22/2014

REVW

4

Clark

Unpub.

*2013AP544

    Bank of New York v. Shirley T. Carson

 

Whether Wis. Stat. § 846.102 requires a plaintiff in a foreclosure action to sell the subject property “without delay” upon the expiration of the redemption period. (cf. 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) Identical language in Wis. Stat. § 846.103 permits, but does not force, a plaintiff to bring the property to sale).

05/23/2014

REVW

Oral Arg

09/23/2014

1

Milwaukee

12/18/2013

Pub.

2013 WI App 153

 352 Wis. 2d 205

 841 N.W.2d 573

*2013AP578

    State v. Ronald Knipfer

 

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 continue the original 980 proceeding, so that a patient whose original commitment was initiated prior to February 1, 2011, will remain subject to the former evidentiary standard in all future discharge proceedings?

If the revised standard governing the admissibility of expert testimony does not apply to a petitioner’s present and future discharge proceedings because his original commitment was initiated prior to February 1, 2011, does this statutory revision violate a petitioner’s rights to due process and equal protection of the law?  Should a reviewing court apply strict scrutiny or a rational basis standard?

05/23/2014

REVW

Oral Arg

10/02/2014

4

Dane

01/29/2014

Pub.

2014 WI App 9

 352 Wis. 2d 563

 842 N.W.2d 526

2013AP691 /

2013AP776

     Wilson Mutual Insurance Company v. Robert Falk

 

Is manure that contaminates consumable fresh water a "pollutant" under the pollution exclusion in an insurance policy?

Does the Farm Chemicals Limited Liability endorsement in the insurance policy issued to the insureds provide coverage for damages from manure that contaminates consumable fresh water?

04/17/2014

REVW

Oral Arg

09/12/2014

2

Washington

01/29/2014

Pub.

2014 WI App 10

352 Wis. 2d 461

844 N.W.2d 380

*2013AP843-CR

    State v. Danny Robert Alexander

 

Can an appellate court decide a case on the ground of ineffective assistance of counsel when that issue had never been raised or argued by the parties in the circuit court or in their briefs on appeal?

06/12/2014

REVW

Oral Arg

10/07/2014

1

Milwaukee

Unpub.

*2013AP1108-CR

     State v. Jesse J. Delebreau

 

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 v. Arizona, 384 U.S. 436 (1966) warnings before taking the statement?  Is it a violation of the defendant’s Article I, Section 7 of the Wisconsin Constitution’s right to counsel?

05/22/2014

REVW

3

Brown

02/26/2014

Pub.

2014 WI App 21

 352 Wis. 2d 647

 843 N.W.2d 441

*2013AP1163-CR

    State v. Kearney W. Hemp

 

Was a defendant’s conviction expunged upon successful completion of his sentence or was the defendant required to petition the circuit court for expungement upon successful completion of probation?

May the circuit court modify a sentence, sua sponte, to revoke probation that was previously granted?

06/12/2014

REVW

Oral Arg

10/07/2014

1

Milwaukee

03/26/2014

Pub.

 2014 WI App 34

353 Wis. 2d 146

844 N.W.2d 421

*2013AP1392

    Runzheimer International, Ltd. v. David Friedlen, et al.

 

Is consideration in addition to continued employment required to support a covenant not to compete entered into by an existing at-will employee?

06/12/2014

CERT

Oral Arg

10/01/2014

1

Milwaukee

--

*2013AP1638-FT

    Outagamie County v. Michael H.

 

Do thoughts of suicide or self-harm, without an articulated plan for acting on those thoughts, constitute “threats” of suicide or serious bodily harm necessary to establish dangerousness under Wis. Stat. § 51.20 (1) (a) 2.a.?

Was the evidence sufficient under a second standard specified in Wis. Stat. sec. 51.20 (1) (a) 2. c., which requires evidence of such impaired judgment, manifested by a pattern of recent acts or omissions, that there is a substantial probability of physical impairment or injury?

06/12/2014

REVW

Oral Arg

10/07/2014

3

Outagamie

Unpub.