The cases listed below will be heard in
the Wisconsin Supreme Court Hearing Room, 231 East, State Capitol.
This calendar
includes cases that originated in the following counties:
Adams
Brown
Door
Eau Claire
Langlade
Marquette
Walworth
Winnebago
TUESDAY, MARCH 6, 2012
9:45 a.m.
10AP2023 The Lamar Company, LLC v. Country Side
Restaurant, Inc.
10:45 a.m. 10AP1599-CR State v. Lee Roy Cain
1:30
p.m. 11AP329-FT Michael J. Waldvogel Trucking, LLC v.
LIRC
WEDNESDAY, MARCH 7, 2012
9:45 a.m.
10AP1785 Joyce Aldrich v. Labor and Industry
Review Commission
10:45 a.m. 10AP2900 Wisconsin Dolls, LLC v. Town of Dell
Prairie
1:30 p.m.
10AP2533 John N. Kroner v. Oneida Seven
Generations Corporation
TUESDAY, MARCH 13, 2012
9:45 a.m.
10AP1192-CR State v. Roshawn Smith
10:45 a.m. 10AP258 Theresa C. Weborg v. Donald B.
Jenny, M.D.
1:30 p.m.
10AP2705 Kathleen DeBruin v. St. Patrick
Congregation
The Supreme Court calendar may change between
the time you receive this synopsis and when the cases are heard. It is suggested that you confirm the time and
date of any case you are interested in by calling the Clerk of the Supreme
Court at 608-266-1880. That office will also have the names of the attorneys
who will be arguing the cases.
Radio and TV, and print media wanting to take
photographs, must make media requests 72 hours in advance by calling Supreme
Court Media Coordinator Rick Blum at 608-271-4321. Summaries provided are not
complete analyses of the issues presented.
WISCONSIN
SUPREME COURT
TUESDAY,
MARCH 6, 2012
9:45
a.m.
This is
a review of a decision of the Wisconsin Court of Appeals, District II
(headquartered in Waukesha), which affirmed a Winnebago County Circuit Court
decision, Judge Karen L. Siefert, presiding.
2010AP2023 The
Lamar Co. v. Country Side Restaurant
This
case examines the legal process by which the owners of billboards and
underlying property are compensated when a billboard site is condemned to make
way for a highway project. The state Department of Transportation (DOT) says
this is the first case arising from the state’s recently revised “unit rule.”
Under City
of Milwaukee Post No. 2874 VFW v. Redevelopment Authority, 2009 WI 84, 319
Wis. 2d 553, 768 N.W.2d 749, the unit rule determines the fair market value as
if only one person owned the property. When the value of the property is
determined, the condemnor makes a single payment for the property taken and the
payment is then apportioned among the various owners.
Some
background: The Lamar Co. owned an outdoor advertising billboard formerly
located on premises owned by Country Side Restaurant. Lamar leased space for the billboard from
Country Side for $5,400 annually. The premises and sign structure were both
condemned by the DOT pursuant to its powers under ch. 32, Stats. In September 2008, the DOT made a
jurisdictional offer to purchase to Country Side and Lamar. The following month the DOT issued a $2
million award of damages pursuant to § 32.05(7). The DOT’s appraisal set the value of the
permitted sign site at $65,000 and the value of the sign at $65,079.
The DOT
paid Lamar $75,175 for the in-place value of the sign. It also paid sign removal expenses and
relocation expenses, bringing Lamar’s total compensation from DOT for the sign
to $83,525. Lamar signed a payment
schedule summary worksheet reflecting the compensation received and agreed to
waive “any right to future claims for damage or loss involving this sign.” The waiver said “the reimbursement stated on
this worksheet has been reviewed and agreed to by both parties. The sign owner or representative, by signing
this document, waives any right to future claims for damages or loss involving
the sign.”
DOT
tendered payment in the amount of $1,985,785.51 to Country Side and Lamar, and
the parties agreed to negotiate the award.
The negotiation resulted in all proceeds being transferred to Country
Side except a disputed amount of $120,000 which was deposited with the clerk of
circuit court, pursuant to § 32.05(7)(d), for eventual distribution in
accordance with a future court order. Lamar and Country Side could not agree on
the distribution of the $120,000 so Lamar filed a claim for partition. Country
Side filed a petition for the disbursement of the funds to Country Side.
At a
hearing in May 2010, Country Side argued that Vivid, Inc. v. Fiedler,
219 Wis. 2d 764, 580 N.W.2d 644 (1998) controlled and instructed that Lamar’s
exclusive remedy was under § 84.30(8).
The trial court agreed with this analysis and ordered that the $120,000
be disbursed to Country Side. Lamar
appealed, and the Court of Appeals affirmed.
The
court noted while Lamar agreed with Country Side that § 84.30(8) provides the
exclusive remedy for the taking of a take by eminent domain, Lamar argued that
§ 84.30(8) does not provide the “procedural mechanism by which you obtain that
remedy.” Instead, Lamar argued § 32.05
provides that procedural mechanism.
Lamar
says § 32.05(9)(a)3. expressly provides that “when the owners or parties having
an interest in land taken cannot agree on the division of an award, any of such
owners or parties of interest may petition the circuit court for the county
wherein the property is located for partition of the award monies as provided
in s. 820.01.”
Lamar
notes the summary worksheet contained no reference to a waiver of claims
against any third parties, nor did it include a waiver of compensation for
Lamar’s permit rights, sign location value, leasehold value, or anything else
not directly tied to the value of the sign structure itself.
Country
Side argues that since Lamar negotiated with DOT and was paid total
compensation in excess of $83,000, and because Lamar signed a document waiving
future claims for damages or loss involving the sign, Lamar is not entitled to
any additional compensation from anyone.
A
decision by the Supreme Court could affect billboard and property owners
throughout the state.
WISCONSIN
SUPREME COURT
TUESDAY,
MARCH 6, 2012
10:45
a.m.
This is
a review of a decision of the Wisconsin Court of Appeals, District IV
(headquartered in Madison), which affirmed a Marquette County Circuit Court
decision, Judge Richard O. Wright, presiding.
2010AP1599-CR State
v. Cain
This criminal case examines the
circumstances under which a plea may be withdrawn.
Some background: Police found 16
marijuana plants while executing a search warrant in Lee Roy Cain’s residence. Police also found a five-gallon bucket
containing a “substantial amount” of material that tested positive for the
active ingredient in marijuana.
The State charged Cain with three
drug-related felonies. Only one of these
charges – manufacture/deliver THC (>200-1000G), § 961.41(1)(h)2 – is at
issue here.
The parties reached a negotiated
plea agreement under which Cain would plead no contest to the manufacturing
charge and the other charges would be dismissed.
At the plea hearing, Cain denied
an elemental fact of the manufacturing charge:
that he was growing between five and 20 marijuana plants. § 961.41(1)(h)2. Cain denied that he was
growing five marijuana plants, as the statue minimally requires, and he would
admit to growing only four plants. The circuit court accepted Cain’s plea and
entered a judgment of conviction.
The circuit court held a
sentencing hearing two months later at which Cain and his lawyer made reference
to Cain having five or more plants at his house. Neither Cain nor his
attorney raised any challenge to the plea hearing before or during the
sentencing hearing.
In a motion for post-conviction
relief, Cain argued that he should be allowed to withdraw his plea because he
directly denied the charged offense at the time of his plea. During oral argument on this motion, Cain’s
post-conviction counsel acknowledged that Cain’s counsel had stipulated at the
plea hearing that there was a factual basis for the plea. But post-conviction counsel contended that
the circuit court erred in accepting the plea in light of Cain’s explicit
denial of the plant quantity.
Post-conviction counsel asked the
court to allow Cain to withdraw his plea. The circuit court denied the motion
on the grounds that Cain entered the plea knowingly, voluntarily, and
intelligently after a lengthy colloquy.
On appeal, Cain renewed his
argument that the circuit court erred in accepting his plea at the plea
hearing. He argued that as soon as he
denied growing at least five marijuana plants, the court should have adjourned
the plea hearing and set the case for trial.
Cain also argued that the court’s denial of his post-conviction motion
to withdraw his plea resulted in a manifest injustice.
The Court of Appeals ultimately
affirmed the judgment and order of the circuit court based on Cain’s and
his lawyer’s references to five or more plants during the sentencing hearing.
Cain contends that the Court of
Appeals’ decision conflicts with Johnson
v. State, 53 Wis. 2d 787, 790, 193 N.W.2d 659 (1972), which states in part:
“... If the defendant denies an element of the crime after pleading guilty the
court is required to reject the plea of guilty.
The matter is then set for trial.” He argues the court never
should have accepted his plea, and his unwarned statements at sentencing cannot
smooth over that fact.
The state argues that the number
of plants grown by the defendant is not an element of the crime of
manufacturing, and thus Cain was not required to admit the number of plants he
grew to support his plea to the charge of manufacturing.
WISCONSIN
SUPREME COURT
TUESDAY,
MARCH 6, 2012
1:30
p.m.
This is
a review of a decision of the Wisconsin Court of Appeals, District III
(headquartered in Wausau), which reversed a Langlade County Circuit Court
decision, Judge Fred W. Kawalsi, presiding.
2011AP329-FT Waldvogel
Trucking v. LIRC
In this unemployment compensation
case, the Supreme Court examines whether an employee who uses illegal drugs,
thus making him ineligible for employment, may receive unemployment benefits.
Some background: In January 2008,
Waldvogel Trucking, a
dairy product transport business, hired Daniel Berceau as truck driver, a
position requiring a commercial driver’s license (CDL). In May 2009, Berceau was laid
off due to a lack of work. He was
recalled Aug. 12, 2009. Berceau
submitted to a drug test the next day and tested positive for marijuana.
Berceau knew Waldvogel Trucking’s drug and alcohol policy mirrored
the requirements for a CDL of the Federal Motor Carrier Safety Administration.
Berceau’s employment was
terminated on Aug. 18, 2009, after Waldvogel learned of the positive test. No evidence was submitted that Berceau had
used marijuana between the time of the Aug. 12 recall and the Aug. 13 drug
test.
Following his discharge, Berceau
filed an unemployment insurance claim.
Benefits were initially awarded on the basis that the behavior resulting
in the positive drug test occurred prior to the rehire, and so could not be
classified as misconduct connected with employment.
The administrative law judge
reversed, concluding because the employee "fully understood the employer’s
drug policy prior that [marijuana] use, and because he knew he would have to
pass a drug test when he was recalled to work, the tribunal concludes that his
behavior evidenced an intentional and substantial disregard of the employer’s
interests.”
Berceau petitioned the commission
for review. It reversed. It noted there was no evidence the employee
was on definite layoff. Therefore, it
determined the August 2009 recall was a new employment relationship and the
test was a pre-employment drug test.
The circuit court reversed,
noting that regulation of the employee’s off-duty conduct must bear a
reasonable relationship to the employer’s interests. Here, it was undisputed
the employee knew he would have to pass a drug screen to maintain a valid CDL.
The Court of Appeals reversed and
remanded for reinstatement of the commission’s decision. It said it need not resolve the parties’
dispute as to the deference due to the commission because, under any level, it
would affirm. It said no employment
relationship exists following layoff for an indefinite period. See A.O. Smith Corp.,
88 Wis. 2d at 269-70. Here, the commission found that
Berceau’s layoff was indefinite
Waldvogel Trucking argues that
employees who fail a drug test, leading to the loss of the license necessary
for employment, engage in misconduct associated with employment, are unable and
unavailable to work, and should not be eligible for unemployment benefits.
Waldvogel Trucking says both federal law and company policy require Berceau to
pass a drug test when recalled to work as a truck driver, and Berceau knew
this.
The Labor Industry Review
Commission (LIRC) responds that Waldvogel Trucking is asking the court to
invade the province of the Legislature.
Also, LIRC argues the statutory distinction between availability for a
specific job and general availability for work is settled. LIRC argues that if there is no employment
relationship, there is no misconduct. See
§ 108.04(5)(work termination must be for misconduct connected with the
employee’s work). It says when Berceau
ingested the marijuana, he was not an employee of Waldvogel and had not been
one for months.
A decision by the Supreme Court
could clarify standards defining misconduct connected with the employee’s work
within the meaning of § 108.04(5).
WISCONSIN
SUPREME COURT
WEDNESDAY,
MARCH 7, 2012
9:45
a.m.
This is
a review of a decision of the Wisconsin Court of Appeals, District III
(headquartered in Wausau), which affirmed a Eau Claire County Circuit Court
decision, Judge William M. Gabler, presiding.
2010AP1785 Aldrich
v. LIRC
(Labor and Industry Review Commission)
The primary question presented in
this case, which examines interplay of state and federal employment law, is
whether a Wisconsin Fair Employment Act (WFEA) claim was untimely under
Wisconsin law.
Some background: Joyce Aldrich was demoted from her position
at Best Buy in March 2003. She promptly contacted the Equal Employment
Opportunity Commission (EEOC) in Milwaukee that month, asking about filing a
discrimination claim. On Aug. 27, 2003 she submitted to the EEOC a signed
“charge questionnaire.” Aldrich responded to follow-up questions upon receiving
an Aug. 29, 2003 letter from EEOC, and has stated that she thought that her
claim was “filed” as of the date the questionnaire was received by the EEOC.
An individual who believes he or
she has been subjected to workplace discrimination may file a complaint with
the EEOC under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e, et seq., and/or the Equal Rights Division (ERD) of the Wisconsin
Department of Workforce Development under the Wisconsin fair employment law,
Wis. Stat. §§ 111.31-111.39.
A worksharing agreement between
the EEOC and the ERD exists, whereby if a complainant files a discrimination
claim with one agency that agency first transmits it to the other agency and
proceeds with the investigation. Federal
law imposes a 300-day time limit on discrimination claims made with the
EEOC. 42 U.S.C. § 2000e-5(e)(1).
The WFEA permits the department’s receipt and investigation of complaints
charging discrimination “if the complaint is filed with the department no more
than 300 days after the alleged discrimination.” Wis. Stat. § 111.39(1). The federal and state agencies have different
requirements in terms of what constitutes a “complaint” for purposes of
preserving and pursuing a claim.
In January 2004, matters at work
were not improving and Aldrich resigned from her position at Best Buy. She submitted supplemental information
regarding her resignation to the EEOC in January 2004. The parties now dispute whether this
constituted a constructive discharge claim. Constructive discharge is the
termination of employment brought about by making the employee’s working
conditions so intolerable that the employee feels compelled to leave.
On Feb. 4, 2004, Aldrich signed a
“Charge of Discrimination” formally alleging sex and age discrimination by Best
Buy. Her charge was then deemed formally
filed with the EEOC. Pursuant to the
worksharing arrangement the EEOC transmitted Aldrich’s charge to the ERD on
Feb. 17, 2004 and the ERD received her charge on Feb. 18, 2004.
The EEOC dismissed Aldrich’s
claims as untimely in January 2005. Aldrich then filed an action in federal
court, alleging sex and age discrimination under federal law, as well as
constructive discharge. The federal
court granted summary judgment to Best Buy based on its conclusion that
Aldrich’s claims were barred because she failed to file her EEOC charge within
300 days of the alleged discrimination.
The court also found that the filed charge did not include a claim for
constructive discharge and that she failed to timely amend to include such an
allegation. Aldrich did not appeal the
federal court decision, and instead requested that the Wisconsin ERD recommence
its investigation of her claims.
In June 2006, the ERD determined
that there was probable cause to believe that Best Buy discriminated against
Aldrich. A hearing was scheduled before
an administrative law judge (ALJ). Best
Buy moved to dismiss on grounds of claim preclusion. The ALJ granted Best Buy’s motion and the
commission affirmed. The circuit court
reversed on certiorari review concluding that doctrine of claim preclusion is
not applicable. The Court of Appeals
affirmed the circuit court’s decision, concluding: “Because Aldrich could not
bring her WFEA claims in the prior federal action, the doctrine of claim
preclusion is not applicable to her claims before the [ERD].” Aldrich v. LIRC, 2008 WI App 63, ¶14,
310 Wis. 2d 796, 751 N.W.2d 866 (citation omitted).
The matter was remanded. On remand, Best Buy again filed a motion to
dismiss Aldrich’s claims, this time on grounds that Aldrich’s demotion claims
were time-barred because her EEOC charge was found to be untimely by the
federal court and therefore her complaint filed with the ERD was also
untimely.
According to Best Buy, the
timeliness of the charge under federal law was fully litigated and disposed of
in a federal court action. The ALJ
granted Best Buy’s motion on March 31, 2009.
The commission affirmed. Aldrich
sought certiorari review and on June 9, 2010, the circuit court vacated the
Commission’s decision. The commission
and Best Buy appealed and the Court of Appeals reversed, agreeing that
Aldrich’s demotion claims were time-barred.
The
Supreme Court examines: whether a document that meets the requirements of a
complaint under state law, but does not constitute a “charge” under federal
employment law, satisfy the state statute of limitations under the WFEA when
the document was submitted to the federal agency under the work share agreement
between the ERD and EEOC; if a determination by the federal district court for
the Western District of Wisconsin of timeliness under federal law be given
preclusive effect in Wisconsin courts when the federal circuit courts of appeal
are divided on the issue and the district court’s interpretation has been
subsequently rejected by the U.S. Supreme Court; and if Aldrich timely stated a
claim for constructive discharge under the WFEA.
WISCONSIN
SUPREME COURT
WEDNESDAY,
MARCH 7, 2012
10:45
a.m.
This is
a review of a decision of the Wisconsin Court of Appeals, District IV
(headquartered in Madison), which affirmed an Adams County Circuit Court
decision, Judge Charles A. Pollex, presiding.
2010AP2900 Wis.
Dolls v. Town of Dell Prairie
This case involves a dispute
between the owners of Wisconsin Dolls, an adult-themed resort in the Wisconsin
Dells, and the town of Dell Prairie and its town board, over a liquor license.
The
Supreme Court is asked to review three issues:
1.
Does a description of an alcohol licensee’s entire property “particularly
describe the premises” subject to the license?
2.
Does a deficiency in the premises description on an approved and issued alcohol
license render the license void?
3.
May a local government substantially reduce the area of an alcohol[-]licensed
premises without consent of the licensee and without the grounds or procedures
set forth under Wis. Stat. § 125.12?
The dispute arose after Wisconsin
Dolls submitted a renewal application for the 2009-10 license period with the
premises description, “All buildings & property comprising approx. 8
acres.”
Although this type of description
had never raised red flags in previous years since 2005, a new town clerk was
now reviewing license applications. The
clerk decided that Wisconsin Dolls’ renewal application inadequately described
the premises. On June 30, 2009, the clerk issued a license to Wisconsin
Dolls that described the covered premises as “Wisconsin Dolls, LLC, 4179 State
Road 13, Wisconsin Dells, WI 53965 (Main Bar/Entertainment Building).”
Wisconsin Dolls objected to the
narrowing of the scope of its alcohol license to the “Main Bar/Entertainment
Building.” It sought certiorari review
of the Town’s decision, asserting that the town’s action constituted a
nonrenewal of its license. Therefore,
Wisconsin Dolls argued, the town was required to follow the notice and hearing
procedures in Wis. Stat. § 125.12(3) and could deny renewal only for
statutorily prescribed reasons in Wis. Stat. § 125.12(2)(ag).
The circuit court rejected
Wisconsin Dolls’ arguments. It concluded
that the town’s action did not amount to a nonrenewal of Wisconsin Dolls’
license, and thus the notice and hearing procedures in Wis. Stat.
§ 125.12(3) and the statutorily prescribed reasons for nonrenewal in
§ 125.12(2)(ag) did not apply.
Wisconsin Dolls appealed.
The Court of Appeals concluded
that Wisconsin Dolls’ 2008-09 license, which covered all eight acres of the
property, did not “particularly describe the premises” as required by Wis.
Stat. §§ 125.26(3) and 125.51(3)(d).
The license was therefore void.
See § 125.04(2) (providing that “[a]ny license or permit issued in
violation of this chapter is void”).
The Court of Appeals then
reasoned that, as the holder of a void license, Wisconsin Dolls had no license
to renew in 2009. See Williams v.
City of Lake Geneva, 2002 WI App 95, ¶9, 253 Wis. 2d 618, 643 N.W.2d
864 (holding that “‘[a void license is] no license’”)(citation omitted). The only way the holder of a void license may
obtain a valid license is to file an application for an original license. Thus,
the Court of Appeals reasoned, the notice and hearing protections that must be
provided in nonrenewal situations did not apply to Wisconsin Dolls.
A decision by the Supreme Court
could clarify the law related to the sufficiency of property descriptions in
liquor licenses and the process by which liquor licenses are approved or not
approved.
WISCONSIN
SUPREME COURT
WEDNESDAY,
MARCH 7, 2012
1:30
p.m.
This is
a review of a decision of the Wisconsin Court of Appeals, District III
(headquartered in Wausau), which affirmed a Brown County Circuit Court
decision, Judge Donald R. Zuidmuler, presiding.
2010AP2533 Kroner
v. Oneida Seven Generations Corp.
This employment case examines
whether a civil suit was properly transferred from the circuit court to the
Oneida Tribal Judicial System pursuant to Wis. Stat. § 801.54.
Some background: From 2001 to
2008, John N. Kroner was employed as the Chief Executive Officer of Oneida
Seven Generations Corporation (Seven Generations), a tribally chartered
corporation controlled by the Oneida business committee on behalf of the Oneida
tribe, the corporation’s sole shareholder. Net revenue is paid to the tribe’s
general fund. The purpose of the
corporation is to promote and enhance business and economic diversification
with respect to real estate assets, management of related assets or as a
holding company for other business ventures of the Oneida Nation.
When Kroner’s employment was
terminated in 2008, he filed suit alleging breach of contract on the ground
that Seven Generations failed to follow policies and procedures set forth in
“the Blue Book,” the tribe’s employee manual.
(Kroner is not a tribe member.)
Seven Generations argued that the
Blue Book was inapplicable to Kroner and the complaint failed to state a
claim. Seven Generations argued the
employee guidelines showed that all employees were at will. Seven Generations also argued the action was
barred by sovereign immunity.
The circuit court reserved ruling
on Seven Generations’ motion to dismiss the complaint for failure to state a
claim. It suggested the parties apply to
the tribal court to accept transfer of the case. In response to correspondence from Seven
Generations’ counsel, the Chief Judicial Officer of the Oneida Tribal Judicial
System, Winnifred Thomas, stated that the transfer should take place pursuant
to § 801.54, which governs discretionary transfers from state to tribal courts
“in cases, such as this one, where there is not a case pending in the tribal
jurisdiction.”
Kroner continued to conduct
written and oral discovery. The court
held a hearing in which it gave the parties a scheduling order for pretrial
motions, discovery and trial. A few
months later, which amounted to 14 months after receipt of Thomas’ letter,
Seven Generations moved to transfer under § 801.54. The circuit court denied Seven Generations’
motion to dismiss and following the hearing, granted the request to transfer to
tribal court pursuant to § 801.54.
On appeal, Kroner argued the
circuit court erred because the record did not support its determination that
tribal court had concurrent jurisdiction and the circuit court failed to
properly consider the statutory discretion factors. The Court of Appeals concluded the record
supported the circuit court’ exercise of discretion and affirmed.
The Court of Appeals said
Kroner’s primary argument was that it is inequitable for him to start all over
again in a new forum after almost two years of litigation. On the other hand, Seven Generations
responded that the tribal court was located in the same county as the circuit
court and Kroner’s pretrial discovery was still usable. The circuit court recognized the case was
“well formed up” and “simply needs to be submitted.”
Also, the circuit court required
Seven Generations to obtain a scheduling conference in the tribal court to be
heard within 45 days of the transfer and report back to the circuit court. Under § 801.54(3) and (5), the transferring
circuit court maintains jurisdiction over the parties, even after
transfer.
The Court of Appeals noted that
the final factor was a catchall provision and neither party asserted the factor
applied. It further stated that the
better practice is for circuit courts to individually address each of the
statutory factors to minimize the potential for error, reduce appeals, and ease
appellate review. However, it was
satisfied the record disclosed an appropriate exercise of discretion under §
801.54.
Kroner
now presents three issues: (1) whether the case could be transferred pursuant
to § 801.54 when the circuit court did not consider “all relevant factors” as
required by the statute; (2) whether the circuit court properly exercised its
discretion in transferring the case when the evidence shows that the factors
under § 801.54(2) did not favor transfer; and (3) whether the threshold
criterion of “concurrent jurisdiction” under § 801.54 was established, when the
record failed to demonstrate subject matter jurisdiction or personal
jurisdiction in the Oneida tribal court.
WISCONSIN
SUPREME COURT
TUESDAY,
MARCH 13, 2012
9:45
a.m.
This is
a review of a decision of the Wisconsin Court of Appeals, District III
(headquartered in Wausau), which reversed a Brown County Circuit Court
decision, Judge Sue E. Bischel, presiding.
2010AP1192-CR State
v. Smith
This criminal case involves two
petitions for review. The state of Wisconsin seeks review of a decision
reversing Roshawn Smith’s conviction for possession with intent to deliver more
than 10,000 grams of tetrahydrocannabinol (THC) as party to the crime.
Smith also filed a petition for
review and presents two arguments: (1) the circumstantial evidence is
insufficient to support his conviction, and (2) alternatively, because the
trial court erroneously accepted his stipulation to the weight of the THC
without eliciting a valid jury waiver on that element, he is entitled to a new
trial.
Some background: The charges
arose from an incident occurring on Sept. 20, 2006, involving two packages of
marijuana shipped from California to Green Bay. Each package weighed approximately 25
pounds. After receiving a tip from
California police, Green Bay officers, with the consent of FedEx, took
their canine unit to a FedEx facility to sniff certain packages for the
presence of narcotics. The dog “alerted” to the packages.
An officer dressed as a FedEx
employee delivered the packages. Shannon
Kortbein signed for delivery and requested that they be placed on her
porch. She later stated that she and
Smith were friends, and an acquaintance of Smith’s, Terry Thomas, had picked up
the packages. Shortly thereafter, Smith
gave Kortbein $400 without explanation. She also said she had
received two earlier deliveries and both times, after the packages were picked
up, Smith paid her $400.
Another individual, David
Melhorn, testified he too was a friend of Smith and had agreed to accept
delivery of packages on three occasions between July and October of
2006. After the packages were delivered, Smith and Thomas had picked
them up.
Before trial, Smith stipulated
the packages contained THC and weighed 22,477 grams.
The circuit court conducted a
colloquy with Smith concerning the stipulation. With the agreement of the state
and defense counsel, the circuit court read the written stipulation to the jury
and instructed the jury that it must accept the stipulated facts “as
conclusively proved.”
The jury found Smith guilty. He was sentenced to six years initial
confinement to be followed by five years extended supervision.
On appeal, Smith raised two
issues. First, he challenged the
sufficiency of the evidence. Second, he
claimed his stipulation as to the weight of the substance deprived him of a
jury trial on the elements of the crime.
The Court of Appeals concluded the evidence was sufficient. However, it agreed with Smith as to the
effect of the stipulation. It reversed
and remanded for a hearing as to the proper remedy.
The Court of Appeals said a
conviction would not be reversed for insufficient evidence unless the evidence,
viewed most favorably to the state and the conviction, is so lacking in
probative value and force that no trier of fact, acting reasonably, could have
found guilt beyond a reasonable doubt.
The state’s theory was that Smith
was a member of a conspiracy to commit the crime, or he aided and abetted the
commission of the crime. The Court of
Appeals concluded the evidence permitted the jury to infer that by introducing
Kortbein and Thomas, and then by giving Kortbein $400 after each delivery,
Smith objectively assisted in the crime of possessing THC with intent to
deliver.
Next, the Court of Appeals
examined Smith’s challenge to the oral and written pre-trial stipulation that
the packages contained THC and weighed 22,477 grams. There was no dispute the jury did not decide
the weight of the THC. However, the State argued that the record as
a whole demonstrates a voluntary, knowing, and intelligent waiver of the right
to a jury trial on this element.
The Court of Appeals said the
state does not identify anything in the record showing the circuit court asked
Smith if he wished to waive his right to a jury trial on the element of the
weight of the THC. Instead, the circuit court’s inquiries addressed
whether Smith agreed the crime lab analyst did not need to testify that the
substance contained THC. Therefore, the Court of Appeals determined
the circuit court failed to conduct the required colloquy.
The state contends
“a claim that the wrong fact-finding entity adjudicated the defendant’s guilt
on an element of the offense is subject the harmless error rule.” The state
also argues the error here was harmless beyond a reasonable doubt, because the
evidence of the weight of the substance was uncontradicted and undisputed. Smith chose to defend on the basis that he
was not involved in the crime and never claimed he would have wanted the jury
to determine the weight issue.
Smith claims the evidence was
speculative. He identifies several fact
issues that underlie his ostensible liability as a party to the crime. Smith points to a number of innocent
explanations, such as, he may not have known about the criminal enterprise and
simply acquiesced to a general request to deliver money to Kortbein. Also, there is no proof that earlier packages
contained drugs and no direct proof that Smith knew the Sept. 20, 2006,
delivery contained marijuana. He argues
that his previous conduct after earlier deliveries does not prove that he
intended or agreed to be a party to that particular delivery, because an
aider/abettor may desist at any point.
Smith argues the Court of Appeals
failed to address these specific issues, stating instead that it would not
consider each piece of evidence individually, but rather viewed the evidence as
a whole. He contends proper appellate
review must carefully examine the specific factual evidence.
Smith says the Court of Appeals
correctly concluded that there was no valid waiver and he was denied his right
to a jury trial on the weight element.
He argues the Court of Appeals erred, however, in failing to grant a new
trial.
WISCONSIN
SUPREME COURT
TUESDAY,
MARCH 13, 2012
10:45
a.m.
This is
a review of a decision of the Wisconsin Court of Appeals, District III
(headquartered in Wausau), which affirmed a Brown County Circuit Court
decision, Judge Sue E. Bischel, presiding.
2010AP258 Weborg
v. Jenny
This medical malpractice case
examines two issues: whether the trial court erred in allowing evidence of life
insurance and social security payments following the death of William Weborg;
and whether the trial court erred in modifying the standard jury instruction
related to expert testimony.
Some background: Theresa Weborg
and her three children, as well as the estate of her husband and their father,
William Weborg, seek review of a judgment upon a jury verdict finding no
negligence on the part of the defendant physicians, Donald B. Jenny, M.D., Erik
M. Borgnes, M.D., and Joseph J. Rebhan, M.D.
William Weborg, who was 42, owned
a machine shop in Egg Harbor. On March
22, 2004, he sought care from a family practitioner, Dr. Joseph Rebhan, for
chest discomfort after experiencing heaviness in the center of his chest
following his workout on a cross trainer. Rebhan ordered an exercise stress
test, which included an EKG performed before, during and after treadmill
exercise, and a nuclear medicine scan.
The results of the stress test
were reviewed by Borgness, a radiologist. Evidence at trial indicated the test
results were interpreted as abnormal.
Rebhan referred to Jenny, a cardiologist, who diagnosed William’s chest
pain as musculoskeletal. On Sept. 24, 2004, William died of severe coronary
artery disease after suffering a heart attack.
The Weborgs brought this medical
malpractice action against the three physicians. Before trial, over the Weborgs’ objection,
the circuit court ruled that pursuant to § 893.55(7), the defendants could
present evidence of collateral source payments from a life insurance policy and
social security benefits. On the third
day of the eight-day trial, the collateral source evidence was admitted. On the fifth day of trial, the parties
stipulated that the Weborgs’ damages totaled $1,000,000, thus removing the
damage issue from jury consideration. The jury returned a verdict in favor of the defendants.
Jury instructions were also
subject to dispute. The Weborgs objected to modification of the standard Wis.
JI—Civil 260 regarding expert testimony. On
motions after verdict, the trial court ruled the life insurance and social
security payments were properly admitted pursuant to § 893.55(7). Nonetheless, the trial court acknowledged
“there is no question” the information heard by the jury “as to collateral
sources of income the plaintiff or her family may have received is prejudice.
The court also indicated there may be some “further guidance” from the
appellate or Supreme Court on this issue. The court also ruled that the jury
instruction modification was not error, as it was consistent with provisions of
Wis. JI–Civil 1023 (“You are not bound by an expert’s opinion, except with
regard to the standard of care exercised by medical doctors.”).
On appeal, the Weborgs argued they were entitled to a new trial because: (1)
prejudice caused by the erroneous admission of the life insurance proceeds ($1,426,110)
and social security paid
($3,300 monthly) on William’s death; and (2) prejudice caused by the
erroneous modification to Wis. Wis. JI— Civil 260.
The Court of Appeals affirmed, assuming without deciding, that the
circuit court erred in admitting evidence regarding the collateral payments
pursuant to § 893.55(7). However, the appellate court found no prejudicial
effect. It said there was no reasonable
possibility the alleged error contributed to the verdict. See Martindale v. Ripp, 2001 WI 113, ¶¶30-32,
246 Wis. 2d 67, 629 N.W.2d 698 (a new trial is warranted only if the error
affected the substantial rights of the party; to affect the substantial rights,
there must be a reasonable possibility the error contributed to the outcome).
Regarding jury instructions, the
Weborgs argued that although the standard instruction informs the jury that it
is not bound by any expert opinion, the amended instruction was
confusing because it suggests the jury is bound by expert medical
care opinions.
The circuit court had modified
the standard language and instructed the jury as follows: “You are
not bound by any expert’s opinion, except
with regard to the standard of care exercised by medical doctors. (Emphasis added). The
Court of Appeals agreed with the Weborgs the italicized language was
error.
Nonetheless, the
court concluded the error was harmless.
A
decision by the Supreme Court could provide guidance regarding interpretation
of § 893.55(7) as it relates to life insurance proceeds and social security and
clarify whether Wis. JI—Civil-260, regarding expert testimony, should be
modified as it was in this case and if doing so would be harmless error.
WISCONSIN
SUPREME COURT
TUESDAY,
MARCH 13, 2012
1:30
p.m.
This is
a certification from the Wisconsin Court of Appeals, District II (headquartered
in Waukesha). The Court of Appeals may certify cases that it believes
cannot be resolved by applying current Wisconsin law. The Wisconsin Supreme
Court, as the state’s preeminent law-developing court, often accepts such
certifications from the Court of Appeals. This case originated in Walworth
County Circuit Court, Judge John R. Race, presiding.
2010AP2705 DeBruin
v. St. Patrick
This certification examines
whether, under the Wisconsin Supreme Court’s decision in Coulee
Catholic Schools v. LIRC, 2009 WI 88, 320 Wis. 2d 275, 768 N.W.2d 868,
religious organizations are immune from common law breach of contract lawsuits
brought by ministerial employees.
Some background: The dispute
arises from Kathleen DeBruin’s one-year contract to serve as the “director of
faith formation” for St. Patrick Congregation, a Roman Catholic parish in
Whitewater.
The contract provided she would
not be discharged during its term without “good and sufficient cause,” which
would be determined by St. Patrick.
During the contract term, St. Patrick fired DeBruin for allegedly failing
to do a background check. She sued for
breach of contract, claiming $34,150.27, plus interest, in unpaid wages.
St. Patrick moved to dismiss,
arguing that it was protected by Coulee, the Free Exercise Clause
of the First Amendment of the U.S. Constitution, and the Freedom of Conscience
Clauses in Art. I, § 18 of the Wisconsin Constitution. The circuit
court agreed and dismissed the action.
On appeal, DeBruin argues Coulee does
not prohibit common law breach of contract claims. She contends that an analysis into a breach
of contract seeking unpaid wages would not interfere with any religious
function, but would involve a neutral non-intrusive document review. She argues there is no individual religious
exemption from neutral laws of general applicability.
The Court of Appeals observes
that under Coulee, DeBruin is unquestionably a ministerial
employee.
The Court of Appeals says federal
and state case law seems to indicate that religious organizations are not
immune from common law breach of contract claims from ministerial employees,
and that the Wisconsin Supreme Court has stated that the Wisconsin Constitution
provides broader religious liberty protections than the First Amendment of the
U.S. Constitution. See Coulee, 320 Wis. 2d 275, ¶66.
“As the Wisconsin Supreme Court
is the primary lawmaking court in this state, we believe it should have the
opportunity to flesh out the Coulee standard, the Court of Appeals
wrote.
“We therefore respectfully ask
the Wisconsin Supreme Court to accept this certification and resolve the
question of whether the religious liberty protections found in the Wisconsin
Constitution are so broad as to shield religious organizations from common law
breach of contract lawsuits brought by ministerial employees.”