November 8, 2013

 

wisconsin supreme court

 

table of pending cases

 

Clerk of Supreme Court

Telephone:  (608) 266-1880

Facsimile:  (608) 267-0640

Web Site:  www.wicourts.gov

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

 

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

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

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

·         the case number;

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

·         a statement of the issue(s);

·         the date the Supreme Court accepted the case;

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

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

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

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

·         whether the Court of Appeals decision is published or unpublished, and, if it is published, the citations to the public domain citation and the official reports for the Court of Appeals decision.

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

            The following table covers cases accepted and decisions issued through November 8, 2013.  Please direct any comments regarding this table to the Clerk of Supreme Court, P.O. Box 1688, Madison, WI 53701-1688, telephone (608)266-1880.

 

 

Case No.

Caption/Issue(s)

SC Accepted

CA

Dist/

Cty

CA

Decision

2010AP1639-CR

             State v. Erick O. Magett

 

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

03/13/2013

REVW

Oral Arg

09/11/2013

4

Grant

Unpub.

2010AP3015

             Frank J. Sausen v. Town of Black Creek Board of Review

 

Whether a board of review’s assessment of the classification of property is entitled to a presumption of correctness.  See Peninsular Power Co. v. Wisconsin Tax Commission, 195 Wis. 231, 218 N.W. 371 (1928).

04/18/2013

REVW

Oral Arg

09/04/2013

3

Outagamie

Unpub.

2010AP3016-CR

             State v. Nicolas Subdiaz-Osorio

 

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

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

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

03/13/2013

REVW

Oral Arg

10/03/2013

In Sheboygan, Justice On Wheels

2

Kenosha

Unpub.

2011AP1045

           Thomas D. Nowell v. City of Wausau

 

Whether circuit court review of municipal court decisions under Wis. Stat. § 125.12 (2) (d) to determine non-renewal of an alcohol license is pursuant to certiorari or a de novo hearing.

03/12/2013

REVW

Reversed

11/06/2013

2013 WI 88

3

Marathon

09/27/2012

Pub.

2012 WI App 100

344 Wis. 2d 269

823 N.W.2d 373

2011AP1514             

          Robert L. Kimble v. Land Concepts, Inc, et al.

 

Whether a $1,000,000 punitive damages award against a title insurance company violates the Wisconsin Constitution or the common law of Wisconsin.

07/14/2013

REVW

Oral Arg

12/19/2013

3

Door

Unpub.

2011AP1572

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

 

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

06/12/2013

REVW

Oral Arg

10/23/2013

4

Dane

01/30/2013

Pub.

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

2011AP1956

         James E. Kochanski v. Speedway Superamerica, LLC

 

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

02/12/2013

REVW

Oral Arg

09/04/2013

1

Milwaukee

Unpub.

2011AP2188

        State ex rel. Ardonis Greer v. David H. Schwarz

 

Whether the Department of Corrections, after erroneously issuing a discharge certificate early, can pursue revocation proceedings against an individual for an action committed after he was advised he was discharged from supervision.

Whether a circuit court, sitting in certiorari, has the authority to apply equitable estoppel to the question of whether the Department of Corrections and Division of Hearings and Appeals acted according to law in issuing a revocation order.

06/12/2013

REVW

Oral Arg

10/22/2013

2

Racine

11/29/2012

Pub.

2012 WI App 122

344 Wis. 2d 639

825 N.W.2d 497

2011AP2424-CR

(consolidated with

  2012AP918,

  State v. Seaton)

        State v. Nancy J. Pinno

 

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

02/25/2013

CERT

Oral Arg

09/04/2013

2

Fond du Lac

--

2011AP2482

       Wisconsin Auto Title Loans Inc. v. Kenneth M. Jones

 

Is an order denying a motion to compel arbitration immediately appealable as a “final” order under Wis. Stat. § 808.03 or the Federal Arbitration Act?

If an order denying a motion to compel arbitration is immediately appealable, is the trial court’s order which determined that the arbitration clause at issue is unconscionable, contrary to AT&T Mobility LLC v. Concepcion, ___ U.S. ___, 131 S. Ct. 1740 (2011), and Cottonwood Financial, Ltd. V. Estes, 2012 WI App 12, 339 Wis. 2d 472, 810 N.W.2d 852 (Cottonwood II) cases?

06/12/2013

CERT

1

Milwaukee

--

2011AP2597

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

 

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

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

04/18/2013

REVW

Oral Arg

09/11/2013

2

Waukesha

Unpub.

2011AP2608

       Michael D. Phillips, et al. v. Daniel G. Parmelee, et al.

 

Does the asbestos exclusion in a “Businessowners” commercial general liability (CGL) insurance policy bar coverage for claims made against the insured?

Does an alleged misrepresentation regarding the presence of asbestos in a building constitute an “occurrence” under a standard CGL policy?

Does the total pollution exclusion in a CGL policy preclude coverage for the asbestos-related damages claimed against the insured?

Does a standard CGL policy provide coverage for the claimed violation by the insured of Wis. Stat. §§ 895.446 and 943.20?

Is the coverage for the damage claim against the insured limited by the punitive damage exclusion in the CGL policy?

05/24/2013

REVW

Oral Arg

10/23/2013

1

Milwaukee

01/30/2013

Pub.

2013 WI App 5

345 Wis. 2d 714

826 N.W.2d 686

2011AP2698-CR

       State v. Curtis L. Jackson

 

Whether the trial court improperly denied a defendant’s motion to admit evidence of the victim’s reputation for violence where the victim’s reputation was unknown to the defendant.  (See McMorris v. State, 58 Wis. 2d 144, 152, 205 N.W.2d 559 (1973) and Wis. Stats. §§ 904.04 (2) (b) and 904.05 (1) and (2)).

02/12/2013

REVW

Oral Arg

09/18/2013

1

Milwaukee

Unpub.

2011AP2733-CR

       State v. Minerva Lopez

 

Whether the trial court properly exercised its discretion in determining that the prosecution’s case would be prejudiced if recorded statements of a 14-year-old victim are ruled inadmissible at trial when the victim had turned 16 and is no longer under the testimonial protection of Wis. Stat. § 908.08.

02/11/2013

REVW

Oral Arg

09/03/2013

4

Dane

Unpub.

2011AP2774

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

 

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

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

05/13/2013

REVW

Oral Arg

09/11/2013

2

Waukesha

01/30/2013

Pub.

2013 WI App 6

345 Wis. 2d 705

827 N.W.2d 116

2011AP2833-CR

       State v. Jacqueline R. Robinson

 

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

02/12/2013

REVW

Oral Arg

09/03/2013

1

Milwaukee

Unpub.

2011AP2887

         Steve P. v. Maegan F.

 

The extent, if any, to which the standard announced in Barstad v. Frazier, 118 Wis. 2d 549, 348 N.W.2d 479 (1984) should apply to biological parents who have not exercised custody over the child.

Whether children possess a constitutional right to preserve an existing, sound parental or parent-like relationship, and if so, whether the removal of the child from the home of the prospective adoptive parents violated that constitutional right.

05/29/2013

REVW

Dismissed

11/08/2013

2013 WI 89

1

Milwaukee

Unpub.

2011AP2902

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

 

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

06/14/2013

REVW

Oral Arg

10/15/2013

 

4

Dane

Unpub.

2011AP2905-CR

         State v. Darryl J. Badzinski

 

Did the trial court’s answer of “no” to a deliberating jury’s question whether the jurors had to agree on the room in which an assault occurred deprive a defendant of his right to a unanimous verdict of guilt beyond a reasonable doubt?

04/18/2013

REVW

Oral Arg

10/22/2013

 

1

Milwaukee

Unpub.

*2011AP2907-CR

      State v. Antonio D. Brown

 

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

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

10/15/2013

REVW

1

Milwaukee

02/26/2013

Pub.

2013 WI App 17

346 Wis. 2d 98

827 N.W.2d 903

*2012AP5

      CED Properties LLC v. City of Oshkosh

 

Does notice pleading allow a plaintiff to challenge the entire amount of a special assessment when the plaintiff’s complaint understated the amount of the special assessment?

Does Wis. Stat. § 802.09(3) - the statute governing relation back - allow a plaintiff to amend its complaint to challenge the entire amount of a special assessment when the original complaint mistakenly understated the amount of the special assessment?

09/18/2013

REVW

Oral Arg

12/18/2013

 

2

Winnebago

06/26/2013

Pub.

2013 WI App 75

348 Wis.2d 305

836 N.W.2d 654

*2012AP122

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

 

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

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

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

09/18/2013

REVW

Oral Arg

12/18/2013

1

Milwaukee

02/26/2013

Pub.

2013 WI App 19

346 Wis. 2d 47

828 N.W.2d 268

*2012AP150-CR

     State v. Jessica A. Nellessen

 

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

10/15/2013

REVW

4

Wood

04/24/2013

Pub.

2013 WI App 46

347 Wis. 2d 537

830 N.W.2d 266

2012AP183

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

 

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

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

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

05/10/2013

REVW

 

1

Milwaukee

11/29/2012

Pub.

2012 WI App 131

344 Wis. 2d 681

825 N.W.2d 508

 

2012AP336-CR

        State v. Bobby L. Tate

 

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

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

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

06/12/2013

REVW

Oral Arg

10/03/2013

(in Sheboygan, Justice On Wheels)

1

Milwaukee

Unpub.

*2012AP337-CR

     State v. Muhammad Sarfraz

 

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

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

09/17/2013

REVW

Oral Arg

12/18/2013

1

Milwaukee

05/29/2013

Pub.

2013 WI App 57

348 Wis. 2d 57

832 N.W. 2d 346

*2012AP392

     State Farm Fire and Casualty Company v. Hague Quality

     Water, International

 

May a subrogated insurer that pays for damage to a rental property caused by a water softener circumvent the manufacturer's warranty by pursuing tort claims or does the economic loss doctrine bar such tort claims where the homeowner purchased the water softener that included a warranty limiting the water softener manufacturer's liability for defects to the cost of repair or replacement of the water softener and disclaimed responsibility for incidental, consequential, or secondary damages and the purchaser/homeowner installed the water softener into a rental property; and the purchaser/homeowner procured the insurance to cover the risk that the water softener may leak and cause damage to the rental property?

10/15/2013

REVW

2

Sheboygan

01/30/2013

Pub.

2013 WI App 10

345 Wis. 2d 741

826 N.W.2d 412

*2012AP597

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

 

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

09/17/2013

REVW

1

Milwaukee

04/24/2013

Pub.

2013 WI App 48

347 Wis. 2d 385

830 N.W.2d115

*2012AP667

     Brian Casey v. Ronald Smith, et al.

 

Whether a non-trucking-use insurance policy provided coverage for an accident that occurred when a semi-truck was driven to a repair shop for alleged nonessential maintenance.

10/15/2013

REVW

3

Dunn

02/26/2013

Pub.

2013 WI App 24

346 Wis. 2d 111

827 N.W.2d 917

2012AP829

     Ronald E. Belding, Jr. v. Deeanna L. Demoulin

 

May Wis. Stat. § 632.32 (5) € be used to prohibit an insurance provision expressly authorized by another subsection of Wis. Stat. § 632.32 (5)?

May a statute, unambiguous on its face, be rewritten by the court based upon a perceived conflict with another statute?

Should Wis. Stat. § 632.32 (6) (d) be construed to prohibit the “drive other car” exclusion expressly authorized by Wis. Stat. § 632.32 (5) (j)?

05/13/2013

REVW

Oral Arg

10/23/2013

2

Kenosha

02/26/2013

Pub.

2013 WI App 26

346 Wis. 2d 160

828 N.W.2d 890

2012AP858

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

 

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

06/13/2013

REVW

Oral Arg

10/15/2013

4

Jefferson

02/26/2013

Pub.

 2013 WI App 27

346 Wis. 2d 30

827 N.W.2d 909

2012AP918

 (consolidated with

  2011AP2424-CR,

  State v. Pinno)

      State v. Travis J. Seaton

 

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

02/25/2013

CERT

Oral Arg

09/04/2013

2

Fond du Lac

--

2012AP958

     Milwaukee County v. Mary F.-R.

 

Under State v. Bush, 2005 WI 103, 283 Wis. 2d 90, 699 N.W.2d 80, is a facial challenge to the constitutionality of a statute forfeited where the issue was presented to the circuit court but not as a constitutional challenge, and further where the constitutional argument does not challenge the entire statutory chapter?

Does Wis. Stat. § 51.20 (11), which provides a jury of six people and requires a five-sixths verdict for persons subject to involuntary commitment, violate equal protection, given that Chapter 980 provides persons subject to involuntary commitment a jury of twelve and requires a unanimous verdict?

02/12/2013

REVW

Oral Arg

09/03/2013

1

Milwaukee

Unpub.

2012AP1426

    State v. Brandon H. Bentdahl

 

Does State v. Brooks, 113 Wis. 2d 347, 335 N.W.2d 354 (1983) (a trial court has discretion to dismiss a refusal charge after a defendant pleads guilty to a charge of operating a motor vehicle while under the influence of an intoxicant (OWI)) apply when a defendant goes to trial on an OWI charge?

Does Brooks apply under current law to allow trial courts to dismiss refusal charges under their discretionary authority?

06/13/2013

REVW

Oral Arg

10/15/2013

4

Columbia

Unpub.

*2012AP1812

    County of Grant v. Daniel A. Vogt

 

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

10/15/2013

REVW

4

Grant

Unpub.

*2012AP1869

    Richard S. Wilcox v. Estate of Ralph Hines

 

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

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

09/17/2013

REVW

Oral Arg

12/19/2013

4

Sauk

05/29/2013

Pub.

2013 WI App 68

348 Wis. 2d 124

831 N.W.2d 791

2012AP2067

    Madison Teachers, Inc. v. Scott Walker

 

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

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

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

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

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

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

06/14/2013

CERT

Oral Arg

11/11/2013

 

4

Dane

--

*2012AP2085

    Kelli Brandenburg v. Robert Luethi

 

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

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

10/21/2013

REVW

3

Trempealeau

Unpub.

*2012AP2402

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

    Insurance Company, et al.

 

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

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

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

10/21/2013

CERT

2

Waukesha

--