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:
Brown
Kenosha
Milwaukee
Sauk
Sheboygan
Washington
Waukesha
Winnebago
THURSDAY, OCTOBER 4, 2012
9:45 a.m.
10AP2597-CR - State v. Dennis D. Lemoine
10:45 a.m. 11AP2067 - Mary E. Marlowe v. IDS Property
Casualty Insurance Company
1:30
p.m. 11AP659-D - Office of Lawyer Regulation v. Joseph
W. Weigel
FRIDAY, OCTOBER 5, 2012
9:45 a.m.
10AP1952 - State
v. Brian K. Avery
10:45 a.m. 11AP259-D - Office
of Lawyer Regulation v. Matthew C. Siderits
TUESDAY, OCTOBER 9, 2012
9:45
a.m. 10AP3153 - Lynn
Bethke, et al. v. Auto-Owners Insurance Company
11AP593 - Angelia
Jamerson v. Department of Children & Families
1:30 p.m. {11AP407-CR - State
v. Brent T. Novy
{11AP408-CR - State
v. Brent T. Novy
{11AP409-CR - State
v. Brent T. Novy
TUESDAY, OCTOBER
23, 2012
9:45
a.m. 11AP564 - Marshall
Schinner v. Michael Gundrum, et al.
10:45
a.m. 10AP2942-D - Office
of Lawyer Regulation v. John Kenyatta Riley
1:30
p.m. {11AP813-CR - State
v. Juan G. Gracia
{11AP814 - City
of Menasha v. Juan G. Gracia
In
addition to the cases listed above, the following case will be decided by the
court based upon the submission of briefs without oral argument:
10AP1348-D - Office
of Lawyer Regulation v. David A. Goluba
The Supreme Court calendar may change between
the time you receive these synopses 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
THURSDAY,
OCTOBER 4, 2012
9:45
a.m.
This is
a review of a decision of the Wisconsin Court of Appeals, District IV
(headquartered in Madison), which affirmed a Sauk County Circuit Court
decision, Judge Guy D. Reynolds, presiding.
2010AP2597-CR State
v. Lemoine
This case examines issues arising
from the conviction of Dennis D. Lemoine on charges of having sexual contact
with a child under 13 years of age, contrary to WIS. STAT. § 948.02(1)(e)
(2009-10). Lemoine asks the Supreme Court to review lower court decisions on
whether statements he made to police were voluntary and properly admitted, and
if the admission of his statements was harmless error.
Some background: Lemoine was
accused of sexually assaulting a five-year-old girl by touching her vaginal
area during a visit to the girl’s parents’ home in Baraboo on April 23, 2007.
Lemoine had agreed to watch the girl for her parents as she jumped on a
trampoline in the backyard while her parents visited outside the garage with someone
else. Lemoine said that at one point, the girl ran over to him and jumped onto
his lap as he sat on the back porch steps.
Four days later, the girl
disclosed the alleged assault to her parents, who reported it to police. On
April 29, the girl’s mother, grandmother, and a detective took her to a Madison
hospital for a sexual-assault examination.
On the morning of April 30, the
detective interviewed the girl at the sheriff’s department. The interview was video recorded and
transcribed, and a DVD of the interview was played at trial. In the interview, the detective asked he girl
repeatedly in various ways if anyone had ever given her a “bad touch.” The girl
did not implicate Lemoine at this time.
The detective and the girl then left the room, and the girl had contact
with her mother. When the detective and the girl returned 10 minutes later, the
girl disclosed that Lemoine had pulled down her underwear and touched her
“pee-pee.”
Later that day, the detective
called Lemoine and asked him to come to the police station without providing a
reason. Lemoine arrived within an hour, and the detective took Lemoine to a
small room to be questioned. The
interview was recorded. Lemoine
maintained his innocence when a police detective confronted him with the assault
allegations. A police lieutenant told Lemoine that the girl had just “gone
through some very lengthy medical procedures” and police were awaiting the test
results. The detective also asked
Lemoine for a DNA sample. Lemoine agreed
to provide a DNA sample but none was taken. The lieutenant then suggested he
could “help out” Lemoine by limiting publicity if he “came clean.”
Lemoine asked what would happen
if he admitted to the allegations. The lieutenant responded by promising
Lemoine that if he gave the “true story . . . today” he would
not spend the night in jail; that this would “give you time to call an
attorney . . . [o]therwise, you know, we can lock you up,”
and that, in jail, he would not be able to make phone calls.
Moments later, the lieutenant
encouraged Lemoine to talk to the district attorney so that “it doesn’t end up
in court” or “in the public forum,” and Lemoine said he would admit to the
allegations if he were not taken to jail. At the end of the interview, Lemoine
was issued a citation, given a court date, and allowed to leave.
The state charged Lemoine with
first-degree sexual assault of a child and the case went to jury trial. Lemoine
moved unsuccessfully to suppress certain incriminating admissions made to
investigators on April 30 on grounds that they were coerced.
During the trial, Lemoine
admitted the girl had sat on his lap, and that he accidently touched her
crotch. The nurse who conducted the girl’s sexual assault exam six days after
the alleged incident testified she observed “redness” near the girl’s vaginal
opening, which she said could have been from “inflammation, irritation or
infection.” The nurse testified she did
not find evidence of sexual assault, but that “[i]f there is a penetration
assault, tissue heals very quickly.”
On appeal, Lemoine argued that
his incriminating statements were involuntary. In particular, he alleged that
the lieutenant promised not to put him in jail that night if he told the “true
story” and suggested that, if he were jailed, he would be unable to exercise
his constitutional right to counsel; that police were deceptive regarding the
extent of the girl’s medical exam; that police failed to give Miranda warnings;
and that the lieutenant offered to limit publicity and suggested the case could
be kept out of the “public forum” even if he gave an incriminating
statement.
The state said Lemoine’s
statements were voluntary because: (1)
the promise not to jail Lemoine in exchange for his cooperation was not
coercive conduct because the investigators kept their promise by allowing him
to leave after the interview; (2) the lieutenant’s representations about access
to counsel from jail were “not patently false;” (3) Miranda warnings
were not required because defense counsel conceded that Lemoine was not in
custody; (4) the interview lasted only 75 to 80 minutes; and (5) Lemoine was a
person of ordinary intelligence who was not particularly susceptible to
coercive tactics.
The Court of Appeals assumed
without deciding that the challenged portion of Lemoine’s incriminating
statements were involuntary and therefore should have been suppressed. The
Court of Appeals then held that the circuit court’s admission of these
statements was harmless error, leading Lemoine to seek Supreme Court review.
WISCONSIN
SUPREME COURT
THURSDAY,
OCTOBER 4, 2012
10:45
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 Donald R. Zuidmulder, presiding.
2011AP2067 Mary
E. Marlowe v. IDS Property Cas. Ins. Co.
This case, arising from a dispute
over insurance coverage, examines the arbitration process and the authority of
arbitrators to determine the necessity and scope of allowable discovery.
Some background: The Marlowes
were involved in an auto accident with an uninsured motorist. They asserted an uninsured motorist claim
under their policy with IDS Property Casualty Insurance Co. (IDS). The parties agreed to arbitrate, and a panel
of three arbitrators was selected. IDS
requested discovery from the Marlowes, including depositions, production of
medical records, and an independent medical examination. The Marlowes said they would not comply
because, under § 788.07, Stats., discovery in arbitration is limited to taking depositions.
In response, IDS pointed to the
portion of the arbitration agreement which said, “Local rules of law as to
procedure and evidence will apply.” IDS
argued that this provision meant that discovery procedures found in Wisconsin
statutes govern the scope and method of discovery. The Marlowes disagreed and continued to
refuse to comply with the discovery requests.
In October of 2010, the
arbitration panel issued a decision and order allowing discovery to the extent
permitted by ch. 804, Stats., governing discovery in civil litigation. The panel concluded that since the arbitration
agreement said “local rules of procedure and evidence” would apply, the
agreement unambiguously allowed for routine discovery according to the civil
rules of procedure. The Marlowes sought
reconsideration of this decision. The
panel issued a supplemental decision and order confirming its earlier ruling.
The Marlowes filed a declaratory
judgment action in circuit court, asking the court to declare that IDS was
limited to discovery provided by § 788.07.
IDS moved to stay the circuit court proceedings and asked the court for
an order compelling arbitration. IDS
argued that the arbitration panel, not the circuit court, had the authority to
determine the scope of discovery allowed by the arbitration agreement.
Following a hearing, the circuit
court denied IDS’s motion and granted the Marlowes’ request for a declaratory
judgment. The circuit court found in part that arbiters are empaneled to
arbitrate, but the arbiters have no authority to interpret the contract between
the parties. They’re to arbitrate what
the contest is all about.
IDS appealed, and the Court of
Appeals reversed. IDS argued that the
circuit court lacked authority to grant a declaratory judgment on the discovery
issue because an arbitration panel’s intermediate rulings are not reviewable by
a court until after the panel has rendered its final award. The Court of Appeals noted the Wisconsin
Arbitration Act does not specifically allow for or prohibit circuit court
review of a panel’s intermediate rulings, and it said the question of whether
intermediate rulings may be challenged in court before a final award is made
appears to be an issue of first impression in Wisconsin.
The Court of Appeals agreed with
the reasoning of federal cases that an arbitration panel’s intermediate
decisions are generally not immediately reviewable since if every individual
decision were independently reviewable by a circuit court, the advantages of
arbitration would become meaningless, as both litigation costs and delay would
increase significantly. Having concluded
that a party generally may not seek immediate circuit court review of an
arbitration panel’s intermediate decision, the Court of Appeals said the
circuit court’s order must be reversed.
The Marlowes say the Court of
Appeals’ decision will not apply just to arbitration clauses in uninsured
motorist policies but will apply to all arbitration clauses in all contracts,
whether commercial purchase contracts, employment contracts, and partnership or
shareholder agreements. The Marlowes
argue the Court of Appeals’ decision will have a chilling effect on all types
of arbitration and will likely create a burden on the trial system because
parties would not be willing to engage in arbitration if it is going to be as
costly and time consuming as litigation.
IDS argues that once an
arbitration agreement makes some arguable reference to a set of established
procedures, the arbitration panel then has the authority to interpret the
reference. IDS says it is arguable that
the phrase “local rules of law as to procedure and evidence” refers to the
Wisconsin procedural statutes which specify allowable discovery procedures.
A decision by the Supreme Court
would help to further develop and clarify the holding of Borst v. Allstate
Ins. Co., 2006 WI 70, 291 Wis. 2d 361, 717 N.W.2d 42. Borst said that “parties would be well
served to either: (1) explicitly address the scope of discovery and the
procedures to resolve disputes regarding discovery; or (2) reference a set of
established ADR provider rules that specify how discovery should be handled.”
THURSDAY, OCTOBER
4, 2012
1:30 p.m.
The
2011AP659-D Office
of Lawyer Regulation (OLR) v. Joseph W. Weigel
In this case, Atty. Joseph W. Weigel
has appealed the referee’s recommendation that his license to practice law in
Wisconsin be suspended for 30 months on 10 counts of professional misconduct.
The OLR has cross-appealed the sanction recommendation and asks the Supreme
Court to revoke Weigel’s license.
Weigel has been licensed to practice
law in Wisconsin since 1960 and practices in Milwaukee. His practice focuses on personal injury
cases. Weigel was privately reprimanded in 1979. Earlier this year he was
publicly reprimanded for entering into a stock redemption agreement that
contained a “non-compete” clause restricting the rights of his former partner,
Alvin Eisenberg, to practice after the termination of their relationship and
for misleading clients and the public by continuing to use the firm name,
“Eisenberg, Weigel, Carlson, Blau & Clemens, S.C.,” after Eisenberg left
the firm. In re Disciplinary Proceedings Against Weigel, 2012 WI 71, 342
Wis. 2d 129, 817 N.W.2d 835.
Prior
to March 1, 1999, Weigel was a 4-percent shareholder and officer in the firm
Eisenberg, Weigel, Carlson, Blau & Clemens, S.C. Pursuant to a stock redemption agreement of
March 1, 1999, Weigel, along with Attys. Clemens and Blau, became the sole shareholders
in the firm. Weigel has served as
president of the firm since that time.
Prior
to March 1, 1999, Eisenberg controlled the firm's trust accounts and generally
controlled the firm. Weigel told investigators that in 1995 or
1996 the firm sustained a third-party forgery loss in excess of $50,000 from
its trust account.
In 1996
or 1997, the firm sustained another third-party forgery loss of approximately
$20,000 from its trust account. Those
trust account theft losses were not reported to the OLR and the trust account
was not replenished to replace the missing funds. In addition, the trust account was not
isolated or replaced with a new trust account and the firm did nothing to
determine the exact amount of the trust account deficiency.
Although Weigel had signature authority on the
trust account for at least part of the 1990s, he testified that he was not
specifically aware of the losses sustained to the account at the time of the
thefts. He was, however, aware of the losses at the
time he entered into the stock redemption agreement in March 1999. Both before and after March 1999, neither the
prior or successor law firm regularly kept transaction ledgers, individual
client ledgers, copies of monthly bank statements, deposit records,
disbursement records, or monthly reconciliation reports for the trust
account.
Weigel
stated that before he bought Eisenberg out, he understood the trust account was
running a deficit but he claimed he did not know its magnitude. He said that
when he and his partners bought Eisenberg out he believed the deficit to be in
the $200,000 or $250,000 range.
Approximately six months after the buyout Weigel
testified he realized the deficit was closer to $1 million. Weigel did not report the
deficit to OLR. He said he and his partners have been endeavoring to reduce the
deficit by injecting personal funds into the trust account. He also said that
clients who are owed settlement monies are being paid promptly albeit out of
funds that belong to other clients and he admits that third parties who are
owed funds, such as health care providers, have to wait for payment until
sufficient funds become available. Weigel says since 2000 the deficit in the
trust account has been reduced from $1 million to $100,000 to $150,000.
The OLR’s complaint alleged that
Weigel failed to maintain trust account records as required by Supreme Court
rules, failed to promptly deliver funds to third parties payees, and converted
funds belonging to clients. The referee found that the OLR met its burden of proof as to all
counts of misconduct. The referee recommended that Weigel’s license be
suspended for 30 months and that he be required to pay the costs of the
proceeding. Weigel has appealed, arguing that OLR did not meet its burden of
proof as to all counts of misconduct and that the appropriate sanction would be
a public reprimand or a short suspension. The OLR has cross-appealed, arguing
that Weigel’s license to practice law should be revoked.
The Supreme Court is expected to
decide whether Weigel engaged in misconduct and, if so, the appropriate
sanction.
WISCONSIN
SUPREME COURT
FRIDAY,
OCTOBER 5, 2012
9:45
a.m.
This is
a review of a decision of the Wisconsin Court of Appeals, District I
(headquartered in Milwaukee), which reversed a Milwaukee County Circuit Court
decision, Judge Dennis R. Cimpl, presiding.
2010AP1952
State
v. Avery
This criminal case examines
whether the Court of Appeals erred in granting a new trial, either on grounds
of newly discovered evidence or on grounds that the real controversy was not
fully tried due to the absence of proffered new evidence from digitally
enhanced videotape.
Some background: In July of 1994,
the Brian K. Avery was convicted by jury on two counts of armed robbery as
party to a crime, based on robberies that occurred one day apart at two
Milwaukee grocery stores. Both stores had interior video surveillance cameras. He
was sentenced to 10 years in prison for one robbery and 20 years in prison for
the other, to be served consecutively. A post-conviction motion was denied, and
the Court of Appeals affirmed the judgment of conviction and post-conviction
orders.
In 2007 the defendant moved for
post-conviction relief under Wis. Stat. § 974.06, seeking a new trial based
both on newly discovered evidence and in the interest of justice. The newly discovered evidence was a new
method of digitally enhancing the videotape from a surveillance camera that was
not available at the time of trial.
The defendant claimed the new
video enhancement and photogrammetric analysis showed that the man who was
identified as the defendant in the videotape was actually several inches
shorter than the defendant. The
defendant’s booking photo established that he was six feet, three inches tall,
had a mustache, wore his hair short and flat on top and faded to extremely
short hair on the sides and back. The post-conviction motion alleged that it was
reasonably probable the jury would have a reasonable doubt as to whether the
defendant was involved in the robberies.
The circuit court denied the motion without a hearing. The defendant appealed, and the Court of
Appeals summarily reversed and remanded with directions to conduct an
evidentiary hearing on the newly discovered evidence claims.
At the close of the evidentiary
hearing, the circuit court concluded that the evidence was discovered after
trial; the moving party was not negligent in seeking the evidence; the evidence
was material to an issue in the case; and the evidence was not merely
cumulative to evidence that was introduced at trial. However, the court declined to find that it
was reasonably probable a different result would be reached on a new
trial. See State v. Edmunds,
2008 WI App 33, ¶13, 308 Wis. 2d 374, 746 N.W.2d 590.
The circuit court concluded that
at a new trial the new evidence was “simply not going to make a difference”
because it was “not reliable enough.”
The circuit court also found that the newly discovered evidence did not
justify a new trial in the interest of justice because it did not “totally
destroy the prosecution’s case” although “certainly, the photogrammetry
evidence could chip away at the prosecution’s case but it wouldn’t destroy
it.” The defendant appealed, and the
Court of Appeals reversed and remanded. The
Court of Appeals said it is solely for the jury to determine whether some
competing credible evidence is entitled to greater weight than other credible
evidence.
The trial court concluded that
because the photogrammetry evidence would chip away at the prosecution’s case
but not totally destroy it, a new trial was not warranted. The Court of Appeals said no Wisconsin case
interpreting § 752.35 requires that the defendant’s new evidence totally
destroy the prosecution’s theory.
The Court of Appeals said in this
case the circuit court clearly weighed the expert testimony on its own, thus
applying the wrong standard and erroneously exercising its discretion.
The state argues the trial court
properly assessed the unreliability of the defendant’s proffered photogrammetry
evidence in determining the probable outcome at a new trial.
A
decision by the Supreme Court could develop and clarify the law on unsettled
questions concerning the tests for newly discovered evidence and interest of
justice in criminal cases.
WISCONSIN
SUPREME COURT
FRIDAY,
OCTOBER 5, 2012
10:45
a.m.
The
Wisconsin Supreme Court is responsible for supervising the practice of law in
the state and protecting the public from misconduct by lawyers. Lawyers must follow a code of ethics
developed by the Court. When there is an
allegation that a lawyer has acted unethically, the Supreme Court’s Office of
Lawyer Regulation (OLR) investigates, and, if warranted, prosecutes the
attorney. A referee - a court-appointed
attorney or reserve judge - hears the discipline cases and makes
recommendations to the Supreme Court. The lawyer involved in this case has a
practice in Waukesha.
2011AP259-D Office
of Lawyer Regulation v. Matthew C. Siderits
In this case, Atty. Matthew C.
Siderits has appealed the referee’s recommendation that his license to practice
law in Wisconsin be suspended for 18 months for five counts of professional
misconduct.
Atty. Siderits has been licensed
to practice law in Wisconsin since 1996.
Atty. Siderits has no previous disciplinary history.
At times relevant to this case,
Siderits worked for a law firm in Milwaukee.
Siderits was a shareholder of the firm, and also served as the firm’s
treasurer.
The misconduct alleged in the
OLR’s complaint concerned Attorney Siderits’s billing practices. The OLR alleged that in 2007 and 2008, Siderits
artificially inflated his billable hours so that he could collect a bonus
payable upon hitting a certain billable hour target; then, after collecting his
bonus, and without informing his partners or the firm’s bookkeeper, Siderits wrote-down
(i.e., reduced) his inflated hours before the firm sent the bills to his
clients. The OLR alleged that Siderits kept
his bonuses even though his billable hours after the write-downs fell below the
billable hour target.
The referee found that the OLR
met its burden of proof as to all counts of misconduct. The referee recommended that Attorney
Siderits’s license be suspended for 18 months.
Siderits has appealed, generally
arguing that he accurately recorded his time, that he wrote-down his bills in a
good faith effort to ensure his clients were not billed excessive amounts, and
that at the time of his actions, he was unaware of any law firm policy or
Wisconsin case law that prohibited his conduct.
Siderits additionally argues that he should receive, at most, either a
public reprimand or a license suspension of between two and six months.
The Supreme Court is expected to
decide whether Siderits engaged in misconduct and, if so, the appropriate
sanction.
WISCONSIN
SUPREME COURT
TUESDAY,
OCTOBER 9, 2012
9:45
a.m.
This is
a review of a decision of the Wisconsin Court of Appeals, District II
(headquartered in Waukesha), which reversed a Sheboygan County Circuit Court
decision, Judge L. Edward Stengel, presiding.
2010AP3153 Bethke
v. Auto-Owners Ins. Co.
This case, arising from a fatal
car accident, examines two issues related to underinsured motorist (UIM)
coverage: whether an insurance policy that excludes self-insured vehicles from
UIM coverage contains an impermissible reducing clause; and whether refusal to
pay proceeds based on the definition of underinsured motor vehicle under the
facts presented in this situation is contrary to public policy.
Some background: On July 19,
2007, Kathryn Bethke and Andrew Bethke were involved in a traffic accident with
Frederick Goddard in Sheboygan Falls. Both Kathryn and Goddard died as a result
of their injuries. Andrew, a passenger in Kathryn’s car, was injured in the
collision. Goddard was driving a car rented from AVIS Rent-A-Car.
The Bethkes allege that Goddard,
who did not have his own car insurance, was driving negligently. AVIS had
obtained a Wisconsin safety responsibility self-insurance certificate as
permitted by Wis. Stat. § 344.16.
Under its self-insurance certificate, AVIS is liable for damages in the
amount of $25,000 per claim and $50,000 per accident – the minimum statutorily
allowable amount. AVIS tendered $25,000
each to Andrew and to Kathryn’s estate.
At the time of the accident,
Kathryn had a car insurance policy through Auto-Owners Insurance Co.
(Owners). The policy included
underinsured motorist (UIM) coverage in the amount of $500,000 per
occurrence. After receiving the
statutory minimum $50,000 from AVIS, the Bethkes made a $450,000 demand under
the UIM provisions of Kathryn’s policy with Owners.
Owners denied the claim,
contending that AVIS’ automobile was a self-insured automobile excluded from
coverage under its UIM policy provisions.
The Bethkes sued Owners for a
survivor’s action, wrongful death, bad faith, and personal injuries to
Andrew. The trial court granted
declaratory relief to Owners, holding that the UIM policy provisions
permissibly and unambiguously excluded the self-insured vehicles owned by AVIS. The Court of Appeals affirmed.
The Court of Appeals concluded
that Owners’ exclusion of self-insured vehicles from its policy definition of
“underinsured automobiles” is permitted under Wis. Stat. § 632.32(6), does
not function as an impermissible reducing clause, and cannot be deemed contrary
to public policy.
The Bethkes challenge these
conclusions in their arguments to the Supreme Court.
WISCONSIN
SUPREME COURT
TUESDAY,
OCTOBER 9, 2012
10:45
a.m.
This is
a review of a decision of the Wisconsin Court of Appeals, District I
(headquartered in Milwaukee), which reversed a Milwaukee County Circuit Court
decision, Judge Dennis P. Moroney, presiding.
2011AP593
Jamerson
v. Dept. of Children & Families
This case examines Wisconsin’s
new caregiver law, specifically, Wis. Stat. § 48.685(5)(br)5., which
mandates that a childcare provider’s certification must be revoked if the provider has been convicted of the
enumerated public assistance offenses.
A decision by the Supreme Court
could help determine the proper standard of review to apply to state department
of Children and Family (the department) decisions involving Wis. Stat. §
48.685(5)(br)5., and clarify whether a previous conviction under § 49.12(1)
& (6) (1989-90), now renumbered as § 49.95, constitutes a barring
conviction for purposes of § 48.685(5)(br)5.
Some background: At issue in this
case is the department’s determination that Angelina Jamerson was permanently
prohibited from obtaining a group childcare license under Wisconsin’s new
caregiver law.
Jamerson was the owner of
Children’s Fantasy Child Care & Preschool.
On Dec. 11, 2009, the department notified Jamerson that her group
childcare license would be summarily suspended as of 12 a.m. the next day. The department summarily suspended her
license because four months earlier, a Children’s Fantasy employee, Brenda
Ashford, allegedly had sold marijuana to an undercover police officer as part
of a controlled buy; the buy had taken place during business hours and on a
corner just west of Children’s Fantasy.
Shortly after receiving the
summary suspension notice, Jamerson faxed a letter to the department stating
that she had terminated Ashford and that Ashford would remain terminated
regardless of the results of the pending charges. Three days later, on Dec. 14, 2009, Jamerson
submitted an affidavit explaining that:
(1) she had no knowledge of the charges against Ashford until the
department had contacted her about them; (2) she had fired Ashford and
prohibited her from coming near the vicinity of Children’s Fantasy; and (3) she
had met with her staff regarding the incident.
Despite Jamerson’s submissions,
the department revoked Jamerson’s childcare license on Jan. 20, 2010. The notice of revocation cited two grounds
for the revocation: (1) Ashford’s marijuana charges, to which Ashford had
by this point pled guilty; and (2) the department’s interpretation of the new
child caregiver law, which would become effective Feb. 1, 2010.
The department alleged that
Jamerson’s 1991 convictions of offenses relating to food stamps and public
assistance (1989-90), contrary to Wis. Stat. §§ 49.127(2m) and 49.12(1)
& (6) (1989-90), permanently prohibited her from holding a license under § 48.685(5)(br)5.
Jamerson appealed the
department’s revocation, and the case was assigned to an administrative law
judge (ALJ) at the Division of Hearings and Appeals. A few weeks before a scheduled hearing on the
matter, the department filed a motion to dismiss Jamerson’s appeal. The department argued that under the new
caregiver law, Jamerson’s prior food stamp offense amounted to an “automatic
bar” preventing her from ever obtaining or holding a group childcare license. The ALJ agreed, and the department adopted the
ALJ’s decision as its final order on the matter.
Jamerson appealed the
department’s final order to the trial court.
The trial court affirmed. Jamerson appealed. The Court of Appeals reversed the
department’s final decision and the trial court’s order.
The
department asks the Supreme Court to review whether Jamerson’s 1991
conviction under Wis. Stat. § 49.12(1) and (6) bars Jamerson from licensure
under Wis. Stat. § 48.685(5)(br)5. The department additionally
asks the Supreme Court to determine the appropriate level of deference to
afford the department’s decision on this point, and to decide whether
the ALJ properly upheld the revocation without first conducting a contested
case hearing.
WISCONSIN
SUPREME COURT
TUESDAY,
OCTOBER 9, 2012
1:30
p.m.
This is
a review of a decision of the Wisconsin Court of Appeals, District II
(headquartered in Waukesha), which affirmed a Kenosha County Circuit Court
decision, Judge Barbara A. Kluka, presiding.
2011AP407-09-CR State
v. Novy
This case examines two issues
arising from the conviction of Brent T. Novy on two counts of stalking, six
counts of bail jumping, and one count of violating a harassment restraining
order:
-
Did the trial court err in allowing
fingerprint evidence to be admitted in the state’s rebuttal when the court had
previously ruled the evidence was not admissible because the state violated the
discovery statute by not providing it to the defense?
-
Was Novy deprived the right to an
impartial jury and fair trial when defense counsel observed a juror sleeping
during his closing argument?
Some background: One of the bail
jumping counts against Novy arose out of an allegation that, after having
previously been charged with felony stalking and having been released from custody,
he violated the conditions of his release by telephoning his former fiancée on
Nov. 9, 2008, from the pay phone at L&M Meats.
In its opening statement, the
prosecutor represented that the jury would hear testimony from a police officer
who had obtained Novy’s thumb print from the pay phone and that the jury would
also hear testimony from the officer who had matched the thumb print found on
the pay phone to the defendant.
At the close of opening
statements, defense counsel moved to exclude the fingerprint evidence because
the state had not provided test results or comparisons of any such evidence,
despite a timely discovery demand by Novy.
The circuit court excluded the fingerprint evidence based on the state’s
failure to designate the analyst as an expert prior to trial.
As the state presented its case,
the former fiancée testified that on Nov. 9, 2008, she had received a call from
the pay phone at L&M Meats. She said
she found the phone number from which the call was made was assigned to that
pay phone by calling her sister from the pay phone and having the sister write
down the number from caller ID.
At the close of the state’s case,
the defendant moved to dismiss one count (count seven) of the bail jumping
charges based on a lack of evidence linking him to the pay phone call from
L&M Meats. The state conceded that without the fingerprint evidence there
was no evidence linking the defendant to the call. Based on the state’s concession, the circuit
court dismissed count seven. When the
state asked if the fingerprint evidence would be available on rebuttal, the
trial court responded that it did not know.
On cross-examination, Novy said
he did not call his former fiancée from L&M Meats on Nov. 9, 2008, at
approximately 8 p.m. When asked if it
anticipated calling rebuttal witnesses, the state said given the defendant’s
denial of making the L&M Meats phone call, “I think at this time the
fingerprint evidence is proper for rebuttal.”
Defense counsel objected, arguing the fingerprint evidence would not
rebut the defendant’s testimony. Defense
counsel also argued that the use of previously requested and undisclosed
physical evidence was not akin to a “rebuttal witness.”
The circuit court ruled that the
fingerprint evidence was “bona fide rebuttal evidence” and noted a rebuttal
witness is permitted to use physical evidence in connection with his
testimony. On rebuttal, the state
presented evidence from the officer who took the fingerprints from the pay phone
and from the officer who verified that the fingerprints belonged to the
defendant. Novy testified that he had
used the pay phone but said he had called a friend in the Philippines.
The majority of the Court of
Appeals concluded that the circuit court’s initial exclusion of the fingerprint
evidence did not necessarily preclude its later admission as rebuttal
evidence. The majority noted the trial
court expressly left open the question of whether the fingerprint evidence
could be used in rebuttal.
Court of Appeals Judge Paul F.
Reilly dissented, saying in part “the evidence of the phone call from Nov. 9,
2008, as received by the trial court, was irrelevant to any of the charges Novy
was being tried on.”
While the state notes that
Reilly’s dissent drew the conclusion that there was no criminal charge
associated with the defendant’s conduct in making a phone call from L&M
Meats the state says, “Novy did not raise an ‘other acts’ objection to the
admissibility in the circuit court or on appeal.”
Novy also contends he was
deprived of his right to an impartial jury when the circuit court refused to
strike a juror who was sleeping during defense counsel’s closing argument.
WISCONSIN
SUPREME COURT
TUESDAY,
OCTOBER 23, 2012
9:45
a.m.
This is
a review of a decision of the Wisconsin Court of Appeals, District II
(headquartered in Waukesha), which reversed a Washington County Circuit Court
decision, Judge James G. Pouros, presiding.
2011AP564 Schinner
v. Gundrum
This case examines the meaning of
“occurrence” and “accident” under the terms of a homeowners insurance policy
and how they apply to the facts presented here. The Supreme Court is asked to
review whether a homeowners insurance policy covers the 21-year-old host of a
drinking party who provided alcohol to an underage guest who assaulted another
guest.
Some background: Marshall
Schinner filed a lawsuit alleging that he sustained serious injuries after
being assaulted by Matthew Cecil. Cecil was a guest at a party hosted by
Michael Gundrum in a shed on Gundrum’s parent’s business property. The shed was
used in part to store personal property, including snowmobiles that were
explicitly listed in a West Bend Insurance Co. homeowner’s policy.
Cecil, who was under the legal
drinking age at the time, became belligerent and assaulted Schinner during the
party. The parties agree that Cecil’s assault on Schinner was intentional and
that Schinner’s injuries did not result from inadvertent or merely reckless
conduct by Cecil. The parties also agree
there is no allegation that Gundrum personally participated in or assisted
Cecil.
Schinner sued Gundrum for
negligence, alleging that Gundrum’s conduct, which included providing alcohol
to Cecil, was a cause of the assault and Schinner’s resulting injuries. West Bend was added to the suit. West Bend moved for summary judgment, arguing
it should be dismissed from the case because there was no “accident,” and
therefore no “occurrence” under the policy.
The circuit court agreed with
West Bend and dismissed it from the case.
The circuit court explained, “Based on the undisputed facts in this
case, there is simply no ‘occurrence.’ ...
There is no allegation of any accidental conduct. The acts of Cecil are intentional acts –
punching Schinner twice and kicking Schinner in the head. Further, any acts on the part of Michael
Gundrum were intentional, namely his providing of alcoholic beverages to
underaged persons.”
The circuit court also agreed
with West Bend’s alternate argument that the homeowner’s policy was
inapplicable because the injury to Schinner did not occur at an insured
location. Schinner appealed, and the
Court of Appeals reversed and remanded.
The Court of Appeals said the
primary issue presented was whether there was an “occurrence” for purposes of
coverage. While the West Bend policy
does not define the term “accident,” the Court of Appeals noted that prior
cases have defined the term as an event which takes place without one’s
foresight or expectation. The Court of
Appeals agreed with Schinner that the assault was an “accident” from Gundrum’s
standpoint as well as from Schinner’s.
West Bend says a decision from
this court would resolve an apparent conflict in previous appellate court
decisions and provide needed guidance on the proper analysis for Wisconsin
courts to employ when determining whether an assault constitutes an
“occurrence” under a homeowner’s liability insurance policy.
WISCONSIN
SUPREME COURT
TUESDAY,
OCTOBER 23, 2012
10:45
a.m.
The
Wisconsin Supreme Court is responsible for supervising the practice of law in
the state and protecting the public from misconduct by lawyers. Lawyers must follow a code of ethics
developed by the Court. When there is an
allegation that a lawyer has acted unethically, the Supreme Court’s Office of Lawyer
Regulation (OLR) investigates, and, if warranted, prosecutes the attorney. A referee - a court-appointed attorney or
reserve judge - hears the discipline cases and makes recommendations to the
Supreme Court. The lawyer involved in this case has a practice in Milwaukee.
2010AP2492-D
Office of Lawyer
Regulation (OLR) v. Riley
In this attorney disciplinary
proceeding, Atty. John Kenyatta Riley appeals from the report and
recommendation of the referee, who concluded that Riley had violated three
provisions of the Rules of Professional Conduct for Attorneys and recommended
that Riley be publicly reprimanded.
Some background: The ethical charges against Riley arise out
of his representation of Atty. Brian Polk in Polk’s 2006 reinstatement
proceeding. Polk’s license to practice
law in Wisconsin had been administratively suspended for several years due to
his failure to comply with his mandatory continuing legal education reporting
obligations. In February 2006 Polk
personally filed a petition for reinstatement.
Because of some issues raised by the Office of Lawyer Regulation (OLR)
in its response to Polk’s petition, the supreme court referred the matter to a
referee with directions to consider and report on: (1) the number and type of
citations involving the operation of a motor vehicle that Polk had received,
(2) the facts surrounding an incident in which Polk had received a citation for
loitering-illegal drug activity, (3) the nature and status of any outstanding
civil judgments against Polk, and (4) any other matter that the referee deemed
helpful to the court’s decision on the reinstatement proceeding.
The referee scheduled a hearing
to receive testimony and documents.
Prior to the September 2006 hearing, Riley agreed to represent Polk at
the hearing before the referee. Riley
indicates that he agreed to serve as a “second chair” attorney, with Polk being
primarily responsible for representing himself.
Riley, however, examined all of the witnesses and presented closing
argument for Polk. During Riley’s direct
examination of Polk, he asked Polk what kinds of jobs he had held since the
suspension of his license. Polk’s
response listed a number of jobs, but did not mention that he had worked for a
law firm during the period of his suspension.
On cross-examination, the OLR attorney asked Polk a series of questions
regarding whether during the period of his suspension he had engaged in the
practice of law, had held himself out as an attorney, had provided legal advice
or legal research to anyone, or engaged in any law-related work activity. Polk responded that he had not done any of
the activities listed in the OLR’s questions.
The referee in the present
disciplinary proceeding found that Polk’s answers were not truthful because
Polk had been employed by the Eisenberg Law Offices (which changed its name to
Eisenberg & Riley at some point) for several months in late 2005 and early 2006.
Riley became associated with that firm
at some point in 2005, although he also continued to maintain his own law
office until early to mid-2006. Polk
testified in the present case that during the several months he worked for the
Eisenberg Law Offices, he was in the office approximately 50 hours per week,
met with clients in the law office, and sent out letters to third parties that
included his signature above the words “attorney at law.” Based on Polk’s testimony, the referee found
that prior to Polk’s reinstatement hearing in September 2006, Polk and Riley
had discussed Polk’s concern about have omitted from his responses to the OLR’s
requests the fact that he had been working for the Eisenberg Law Offices. The referee further found that Riley knew that
Polk’s testimony at the reinstatement hearing was false and that Riley failed
to remedy the false evidence provided to the referee in the reinstatement
proceeding.
On the basis of these facts, the
referee concluded that (1) Riley had offered false material evidence and had
failed to take reasonable remedial measures, in violation of SCR 20:3.3(a)(3);
(2) had assisted a witness to testify falsely, in violation of SCR 20:3.4(b);
and had engaged in conduct involving dishonesty, fraud, deceit or misrepresentation,
in violation of SCR 20:8.4(c). The
referee recommended that the supreme court publicly reprimand Riley for these
ethical violations.
In his appeal, Riley argues that
the referee should have recommended dismissal of the misconduct charges against
him because there was insufficient evidence to support a conclusion that prior
to the 2006 reinstatement hearing Riley actually knew that Polk had been
working for the Eisenberg Law Offices.
He also asserts that because he asked an open-ended question about what
jobs Polk had held since his administrative suspension, there is insufficient
evidence to support a conclusion that Riley knew when he asked the question
that Polk would fail to provide truthful testimony. Thus, he contends that he did not knowingly
offer testimony that he knew to be false.
Finally, Riley asserts that Polk’s testimony regarding the jobs he held
during his suspension and his failure to include his work for the Eisenberg Law
Offices was not material to the issues in the reinstatement proceeding. Consequently, he argues that even if Polk was
not truthful in his response and Riley knew of that fact, Riley had no
obligation to remedy what he saw as immaterial evidence. He is therefore asking the court to reject
the referee’s conclusions and dismiss the misconduct charges against him.
The supreme court will review the
referee’s factual findings and legal conclusions regarding the misconduct
charges. If it affirms any of the
referee’s conclusions of professional misconduct, it will determine what would
be the appropriate level of discipline.
WISCONSIN
SUPREME COURT
TUESDAY,
OCTOBER 23, 2012
1:30
p.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 Barbara H. Key, presiding.
2011AP813-814 City of
Menasha v. Gracia
These consolidated cases involve
challenges to two separate drunken driving convictions against Juan G. Gracia.
In one case, the Supreme Court examines whether police entry into Gracia’s
bedroom while investigating a 2010 incident that led to his fourth operating
while intoxicated (OWI) conviction was lawful under the community caretaker
doctrine. Because of the progressive nature of the penalties for OWI
convictions, Gracia also challenges his second OWI conviction, which occurred
in 1998, on the ground that he did not validly waive his right to counsel
before entering a pro se guilty plea.
Some background: On Feb. 26,
2010, Menasha police observed a yellow traffic light pole that had been struck
and was lying near an intersection. Police found a license plate nearby that
was ultimately tied to a white 1999 Buick Regal apparently owned by a member of
the Gracia family.
After receiving additional
information, police went to Gracia’s trailer home where they found a white 1999
Buick Regal with considerable damage to its right front that bore some yellow
paint similar to the paint used on traffic poles.
Police officers were not able to
get Gracia to respond to their visit. As police were about to leave, Gracia’s
brother, who also lived in the trailer, arrived. Police told him they wanted to
check to see if Gracia was OK because they were concerned he may have been
injured in an accident.
Gracia’s brother went into the
home for a short time before returning to lead officers into the home and
toward Gracia’s locked bedroom. Officers tried to open the door, but could not.
Gracia objected to the police presence and asked his brother to make the police
go away. Without any explicit suggestion or request from police, the brother
rammed his shoulder into the door, causing it to open. The officers then simply walked into the
bedroom.
Once inside the bedroom, the
police found Gracia lying on his bed and detected the smell of alcohol. Gracia told the police that he had been
driving the Buick. The officers then
arrested him, and Gracia was charged with OWI-fourth offense. He filed a motion to suppress, arguing that
the officers’ warrantless entry into his bedroom had been unconstitutional. The
circuit court denied the motion, finding that the officers’ entry into his
bedroom had been justified under the community caretaker doctrine.
While the charge was pending,
Gracia also filed a motion collaterally attacking his 1998 conviction for
OWI-Second Offense in order to reduce the current charge from an OWI-Fourth
Offense to an OWI-Third Offense.
At the time of the 1998 case
Gracia was 23 years old and had never been represented by an attorney. He testified at the hearing in the 2010 case
that he had believed he did not have any defenses to the OWI-Second Offense
charge against him and that a lawyer would not really be able to help him.
Gracia consistently indicated in 1998 that he did not want a lawyer. The
circuit court at the time ultimately went forward with the plea colloquy and
accepted Gracia’s plea.
In the 2010 case, the circuit
court rejected Gracia’s collateral attack on his 1998 conviction, concluding
that Gracia had validly waived his right to counsel through a “conscious
decision” to not spend the money it would cost to hire an attorney.
The Court of Appeals affirmed on
both issues.
Gracia asserts that the Court of
Appeals decision is “tantamount to permitting police to make warrantless
entries to the homes of Wisconsin citizens after every car accident to see if
someone may be hurt.” He also argues that he did not make a truly knowing and
intelligent waiver of his right to counsel in 1998 case. He points to the fact the trial court never
explained that an attorney might be able to find defenses to the charge or
might be able to mitigate the charge or the potential sentence.
A decision by the Supreme Court
could clarify law surrounding the community caretaker function of police and
the standards involved in waiving the right to counsel.