Wisconsin Supreme Court accepts three new cases

Madison, Wisconsin - August 14, 2014

The Wisconsin Supreme Court has voted to accept three new cases and has acted to deny review in a number of other cases. The case numbers, issues, and county of origin are listed below. The Court of Appeals' opinions for the newly accepted cases are hyperlinked where available. Visit the Supreme Court and Court of Appeals Access website for more information about the status of any particular case.

2013AP467-CR State v. Anthony
A decision by the Supreme Court in this case is expected to provide guidance on when a trial court may deny a defendant the right to testify and the standard by which the Court of Appeals should review that determination.

Some background: Eddie Lee Anthony was convicted of first-degree intentional homicide for killing Sabrina Junior, his live-in girlfriend and the mother of his children with an ice pick on Aug. 20, 2010.

At trial, the state presented evidence that Anthony and Junior had been walking through their neighborhood and began arguing. The couple returned to their home, where the argument continued. Their eldest daughter entered the apartment later to find Junior's body as Anthony was leaving. Anthony fled and was arrested in Illinois. Anthony did not contest these allegations but intended to testify and argue self-defense. The court engaged in a discussion with Anthony that ended with the court ruling that Anthony could not testify.

The court explained to Anthony that if he were asked if he had ever been convicted of a crime, he should respond that he had been convicted of two crimes. This discussion reflected a pretrial ruling. Anthony had served 12 years for a third conviction from 1966, later deemed wrongful. Anthony maintained that he had been convicted three times and intended to say so.

The court told Anthony that he would only be able to say that he had been convicted twice; he was not allowed to mention this third conviction. Anthony stated he understood, but insisted that the jury should "know the truth, the whole truth." The court did not want Anthony to mention the wrongful conviction and felt that Anthony's demeanor indicated he might be disruptive. The court ordered that Anthony would not be allowed to testify in his own defense.

When trial counsel suggested that Anthony be permitted to testify and the state could argue and the court could instruct as necessary as to any irrelevant information that might be disclosed, the court refused, explaining, "That's putting the inmates in charge of the asylum; so I'm sorry, I'm not going to go that route."

Trial counsel said Anthony would have testified that he acted in self-defense when he killed Junior, whom Anthony claimed had a history of being aggressive while high on crack cocaine and that she was exhibiting severe aggression in connection on the night of her death. Anthony would have explained why fleeing was not indicative of guilt, because he has a special fear of police in Illinois and Wisconsin due to events in his past, including the wrongful conviction from 1966, so flight was a natural response.

During closing arguments, the state repeatedly referenced the fact that Anthony fled the scene in order to prove that Anthony intended to kill Junior. After being convicted, Anthony timely filed a motion for post-conviction relief arguing ineffective assistance of counsel for, in relevant part, trial counsel's failure to effectively argue that Anthony had a right to testify in his own defense or advocate for him in the exchange that led to the denial of his right to testify.

The circuit court denied Anthony's motion without hearing. Anthony appealed, arguing that the circuit court erred when it denied Anthony his right to testify in his own defense, claiming this obliterated Anthony's only defense and that there is nothing on record to indicate that Anthony either was truly disruptive or did not intend to tell the truth.

The Court of Appeals affirmed, citing Illinois v. Allen, 397 U.S. 337 (1970), which holds that the circuit court had the authority to strip Anthony of the right to testify and that "even if the trial court should have permitted Anthony to testify, the refusal to do so was harmless."

The state contends there was such overwhelming evidence of the defendant's guilt that any error was clearly harmless.

Anthony argues that by "preemptively stripping Anthony of his right to testify, the court stripped Anthony of his only defense, a far too severe punishment for Anthony's minor disruption and dissent." Anthony argues that the court "should have minimally allowed Anthony the opportunity to testify to see if he would disobey the court's order not to explain why he fled from police." From Milwaukee County.

2013AP500 Anderson v. Aul
This case examines two questions arising from a dispute over legal malpractice insurance coverage: whether Wis. Stat. §§ 631.81(1) and 632.26(2) require "occurrence" coverage; and whether requiring an insurer to provide coverage for a claim that is not within the scope of the policy's insuring agreement prejudices the insurer.

A decision by the Supreme Court is expected to have a substantial statewide effect on the cost and availability of legal malpractice coverage in Wisconsin.

Some background: Historically, legal malpractice insurance has been available in two flavors: "occurrence" policies and "claims-made" policies. Occurrence policies grant coverage for liability arising from accidents, acts, errors or omissions that occur during the policy's policy period without regard to when the claim may ultimately be made or reported to the insurer. By contrast, "claims-made" policies provide coverage for claims first made during the policy period, and a further condition is that the claim be reported during the policy period. Under claims-made policies, a claim made or reported after the policy period is not covered, and the insurer need not show any prejudice in having received notice after the expiration of the policy.

Up through the mid-to-late 1970s, most legal malpractice policies were written on an "occurrence" basis. Insurers willing to write the coverage were scarce and those willing to write that coverage would only do so for premiums many Wisconsin lawyers could not afford. This adversely affected the interests of Wisconsin lawyers and their clients and was the impetus for a State Bar initiative that led to the creation of Wisconsin Lawyers Mutual Insurance Company (WILMIC) in 1986. The increasing number of claims and soaring defense costs, spurred this change towards "claims-made" policies.

In this case, Atty. Thomas E. Aul ("Aul") represented Melissa and Kenneth Anderson ("the Andersons") in their acquisition of business property from a limited liability company owned by Aul. The Andersons allege Aul did not deal with them fairly and breached his duties to them as their lawyer. The Andersons retained other counsel who sent Aul a letter on Dec. 23, 2009, accusing Aul of wrongful conduct and demanding that Aul pay the Andersons $117,125. Aul retained legal counsel to respond to the Andersons' claim.

WILMIC insured Aul against liability for legal malpractice for the policy period of April 1, 2009 to April 1, 2010. The policy granted coverage for "claims first made against you [Aul] and first reported to us [WILMIC] during the policy period."

It is undisputed that the Dec. 23, 2009 letter put Aul on notice of a claim, and the policy required that letter to be reported to WILMIC within the policy period, which was April 1, 2009 to April 1, 2010. WILMIC did not learn of the Andersons' claim until March 9, 2011, when Aul first reported the claim to WILMIC.

On March 2, 2012, the Andersons sued Aul and limited liability companies owned by Aul. WILMIC undertook Aul's tender of defense under a reservation of rights and intervened in the suit asserting that it did not provide coverage for the Andersons' claims.

The circuit court granted WILMIC's motion for summary judgment, holding that Aul had "ample opportunity" to provide WILMIC with notice of the Andersons' claim within the policy's policy period. The circuit court held that therefore no coverage existed and did not reach the question of prejudice to WILMIC. Judgment dismissing the claims against WILMIC was entered on Jan. 14, 2013.

The Andersons appealed and the Court of Appeals reversed, holding that Wis. Stat. §§ 631.81(1) and 632.26(2) required that WILMIC provide Aul with coverage because WILMIC was not prejudiced by the lack of notice. The Court of Appeals implied that WILMIC made too "much of the fact that the policy at issue is a claims-made policy," stating that §§ 631.81 and 632.26 apply to all liability policies and do "not distinguish claims-made policies."

WILMIC argues that requiring the claims-made-and-reported insurer to provide coverage the policy does not promise prejudices the insurer. It would require the insurer to cover claims the insurer never agreed to cover and for which the insurer did not receive a premium. WILMIC adds that lawyers are educated consumers and compliance with the notice element of claims-made-and-reported coverage is not arduous.

The Court of Appeals found that prejudice under §§ 631.81(1) and 632.26(2) is limited to: "a serious impairment of the insurer's ability to investigate, evaluate, or settle a claim, determine coverage, or present an effective defense, resulting from the unexcused failure of the insured to provide timely notice."

A decision by the Supreme Court could clarify terms of coverage for legal malpractice under certain circumstances and policy types. From Waukesha County.

2009AP3073-CR State v. Griep
This drunken driving case examines whether the Confrontation Clause prohibits a surrogate witness – in this case a crime lab section chief who did not personally conduct or observe lab work – from testifying regarding a non-testifying lab analyst's procedures and conclusions.

Some background: This is the second time this case has reached the Supreme Court. The Court initially held a certification from the District II Court of Appeals in abeyance, pending the Wisconsin Supreme Court's decision in State v. Deadwiller, 2013 WI 75, 350 Wis. 2d 138, 834 N.W.2d 362. After deciding Deadwiller, the Supreme Court voted 5-2 to deny certification, and the Court of Appeals affirmed, resulting in defendant Michael R. Griep's appeal to the Supreme Court.

Griep was stopped for speeding in August of 2007. The officer who stopped him smelled alcohol. After administering a preliminary breath test, the officer arrested Griep for drunken driving. Griep was taken to a hospital so a blood sample could be drawn. After observing a phlebotomist draw the blood and put it into closed vials, the officer packaged the vials and completed the necessary paperwork to send it out for testing.

At the bench trial in July of 2009, the phlebotomist who drew the blood testified under oath about the procedures she had followed. Also testifying was the section chief for the state crime lab that tested the blood sample. The section chief did not personally conduct or observe the tests of the blood sample but he testified in place of the analyst who did conduct the test. The analyst was unavailable at the time of trial.

Griep objected to portions of the section chief's testimony, arguing that an expert who did not conduct the analysis is not allowed to vouch for the competency and honesty of another witness.

The state countered that an expert testifying in reliance on data produced by another person does not violate the confrontation clause, even if the expert's opinion is based in part on the work of another. The circuit court overruled the defendant's objection, concluding that although an expert cannot act as a mere conduit for another's opinion, he can rely on things that the other person would normally use to render an opinion, such as a report of another expert's testing.

The defendant appealed, and (following this court's refusal of the certification) the Court of Appeals affirmed. In considering the case, the Court of Appeals termed the current state of the law "muddled" and said there was an arguable conflict between binding state court opinions and subsequent U.S. Supreme Court decisions.

The Court of Appeals noted that under the rationale of State v. Williams, 2002 WI 58, 253 Wis. 2d 99, 644 N.W.2d 919, a defendant's confrontation right is not violated when the surrogate, rather than the analyst who performed the tests, testifies in part based on the crime lab report containing the lab test results concerning the nature of a tested substance.

The Court of Appeals said the Williams rule was announced before the U.S. Supreme Court decided Crawford v. Washington, 541 U.S. 36 (2004), which established a new test under which the reliability of a hearsay statement is not enough to justify its admission at trial; instead, if a statement is "testimonial" hearsay, it is inadmissible unless the declarant is unavailable to testify and the defendant had a prior opportunity to cross-examine him or her.

Griep's petition for review also was held pending the U. S. Supreme Court's decisions on three certification petitions that raised substantially similar issues. The U.S. Supreme Court denied review in all three of those cases.

A decision by the Supreme Court could clarify law in this area and provide direction for similar cases statewide. From Winnebago 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:

2012AP1409 Stock v. WI Central
2013AP657-CR State v. Mueller
2014AP848-W Hujet v. Gossage
2014AP1087-W Profit v. Pollard

2013AP2097 O'Connor v. Buffalo County Bd. of Adjustment

2012AP1705 Hughes v. Fults

2012AP2337 Dermody v. Comm. of Ins.
2012AP2362-CR State v. Grant
2013AP158-CR State v. Lawler
2013AP293 Patricia L. v. Oregon School District
2013AP730-CR State v. Caminiti
2013AP1111-CR State v. Powell
2014AP45 Dane Co. DHS v. Latasha G.
2014AP894-W Grant v. Pollard
2014AP1284-W Edwards v. Wis. Ct. of Appeals, Dist. IV

2013AP2014-W Jardins v. Dittman

2013AP1870 Fanetti v. Fanetti 2004 Rev. Tr.

Eau Claire
2013AP1194 Taylor v. Cedar Falls Building System
2014AP289-W Peterson v. Smith

Fond du Lac
2013AP1665-CR State v. Whipple
2013AP1305-CR/2013AP1306-CR State v. Gurath

2012AP1595-CR State v. Cromwell

2013AP1817 State v. Shelton

2013AP426 State v. Graham
2013AP1287 State v. Robinson
2013AP1300 State v. Murry

La Crosse
2013AP1084-CR State v. Jago
2013AP1623 Heisz v. Heisz

2012AP2288 Scheuren v. Green Bay Skydivers, Inc.

2012AP2749-CR/ State v. Erickson 2012AP1750-CR
2013AP1604 Marinette County Prof'l Employees Union v. Marinette County

2009AP2888-W Pepin v. Pugh
2011AP2308-W Gorak v. Clements
2011AP2992-CRNM State v. Alexander
2012AP2006-CR State v. Hussein
2012AP2307 State v. Redmond - Justice Patience Drake Roggensack did not participate.
2012AP2544/2012AP2545 State v. Eskridge - Justice Patience Drake Roggensack did not participate.
2012AP2619 State v. Miller
2013AP152-CR State v. Love
2013AP504-CR State v. Farr - Justice Patience Drake Roggensack did not participate.
2013AP540-CR State v. Wright
2013AP697-CR State v. Johnson
2013AP708 State v. Davis
2013AP801-CRNM State v. Helton
2013AP913-CR State v. Anderson - Justice Patience Drake Roggensack did not participate.
2013AP992-CR/2013AP993-CR State v. Rogers
2013AP1081-CR State v. Jackson
2013AP1129-CR State v. Burris
2013AP1184-CR State v. Gates
2013AP1436-CR State v. Lynch
2013AP1445-CR State v. Anderson
2013AP1507-CR State v. Harris
2013AP1848-CR State v. Bickham - Justice Patience Drake Roggensack did not participate.
2013AP2522-W Minnis v. Pollard
2013AP2793-W Santiago v. Pollard
2014AP246 Milwaukee Co. v. Aaron B.

2013AP947-CR State v. Cole

2013AP2890-W Domke v. Smith

2013AP1648 Deutsche Bank v. Jolin

2012AP2142-CR State v. Daniels
2012AP2416-CRNM State v. Nutten
2012AP2420-CR State v. Heroux
2013AP997-CR State v. Deppiesses
2013AP1021-CR State v. Sanchez

2013AP985 Christner v. Christner

2013AP941-CR State v. Franklin
2013AP1530-CR State v. Jones
2013AP2212-CR State v. Storm
2014AP973-W Clark v. Richardson

2012AP1543-CRNM State v. Myrick

2013AP488-CRNM State v. Lengling

St. Croix
2013AP2045 Myers v. Am. Family Mutual Ins.

2013AP674-CR State v. Landis

2013AP662 Belcorp Financial v. Est. of Wetzel

2013AP990-CRNM State v. Pipes

2013AP1472 Mazemke v. Pusch

2012AP2431-CR State v. Mueller
2013AP200-CR State v. Rigdon
2013AP487 Domina v. Wiedenhoeft
2013AP647-CR State v. Marth
2013AP888 Hollingsworth v. Landing Condo of Waukesha Assoc.
2013AP1354-CR State v. Oswald
2013AP1538 Hollingsworth v. Landing Condo of Waukesha Assoc.
2013AP1611-CR/2013AP1612-CR State v. Lobley
2013AP1983-FT Waukesha Co. v. Michael J.S.

2012AP1819-CR State v. Popke

2013AP2544-W Morris v. Dutcher

2013AP1774-CR State v. Rabideau
2014AP492-W Blank v. Clements

2012AP186-CR State v. Rogers

Tom Sheehan
Court Information Officer
(608) 261-6640


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