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Supreme Court accepts three new cases

Madison, Wisconsin - December 22, 2008

The Wisconsin Supreme Court has voted to accept three new cases. The Court also acted to deny review in a number of cases. The case numbers, issues, and counties of origin are listed below. Court of Appeals’ opinions/certification memos available online for the newly accepted cases are hyperlinked.

2008AP446-CR  State v. Michael L. Popke
In this case, the state's petition asks the Supreme Court to review if a brief swerve of three-quarters of a motor vehicle across the center line of the road provides probable cause to believe that the driver has violated Wis. Stat. § 346.05, which requires all motorists to "drive on the right half of the roadway." If such a temporary crossing constitutes "driving" on the wrong side of the road, then the police may stop a motorist who has engaged in such conduct for the traffic offense, which in turn might lead the police to discover that the driver is intoxicated, even though the traffic offense, by itself, might not allow a stop for drunk driving. Alternatively, the state also asks if such a left-of-center violation followed by two instances of weaving within a single traffic lane within a distance of two blocks give a police officer reasonable suspicion to make an investigatory stop for possible drunk driving?

Some background: At approximately 1:30 a.m. on July 8, 2007, Sgt Jeff Schlueter of the New London Police Department observed Michael Popke's truck make a left-hand, 90-degree turn onto Cedarhurst Drive. As Schlueter pulled out to follow the truck, he saw three-quarters of Popke's vehicle momentarily cross the center of the road immediately after it had made the left turn, and the truck soon traveled to the far right side of the road where it almost hit the curb. The truck then veered or faded back toward the center of the road, where it almost hit a center median.

Schlueter pulled Popke's truck over and ultimately arrested him. Blood-alcohol tests subsequently revealed that Popke had a blood-alcohol concentration of 0.255 percent.  The state charged Popke with operating while intoxicated (OWI) and operating a motor vehicle with a prohibited blood alcohol concentration (BAC) – each the third offense.

Popke filed a motion to suppress all of the evidence obtained after the stop.  The circuit court denied the motion, agreeing with the state that Schlueter's observation of a violation of Wis. Stat. § 346.05 provided justification for the officer to make the traffic stop. Popke then entered a no-contest plea to the OWI charge, and the BAC charge was dismissed. 

On appeal, Popke challenged the circuit court's suppression ruling, and the Court of Appeals reversed, concluding that under the plain language of the statute a momentary swerve across the center of the road did not constitute a failure to "drive" on the right half of the roadway.

The state argues that the Court of Appeals actually ignored the literal language of Wis. Stat. § 346.05, contending that it is not appropriate to consider the extent and duration of the crossing of the center. The legislature chose to include exceptions where a vehicle may drive in the left lane, such as where it is necessary to avoid an obstacle or to pass a vehicle.  None of those exceptions were present here.  Thus, the state asserts that when the legislature provides exceptions to a statute, it intends that statute to be interpreted literally. 

The state argues the issue in this case is not whether Popke would in fact have been convicted of a violation of Wis. Stat. § 346.05, but whether the police had probable cause to believe that a traffic law had been violated. The state contends that Popke's crossing of the center of the roadway, even if for only a short time, clearly provided such probable cause.

Popke asserts that under the state's view of the statute, there would be a violation of the statute and probable cause to make a traffic stop even if only one tread of an individual's tire crossed the center line of the road.  He asserts that under this interpretation, thousands of vehicles could be pulled over every day. 

A decision by the Supreme Court could clarify if a momentary crossing of the center line creates probable cause to believe that a motorist has failed to drive on the right side of the roadway, as required by Wis. Stat. § 346.05.  Alternatively, the court may provide further guidance as to what driving conduct a police officer must observe in order to create a reasonable suspicion of an OWI violation. From Waupaca County.

2007AP1799   Osborn v. Dennison
This case involves a dispute over a failed residential real estate transaction and whether the sellers elected the remedy of liquidated damages, preventing the sellers from obtaining their actual damages. 

Some background: Harold Dennison offered to purchase the home of Douglas and Martha Osborn, using the standard WB-11 Residential Offer to Purchase form approved by the Department of Regulation and Licensing.  He deposited $2,000 in earnest money with the broker in connection with his offer.  The parties reached an agreement.

After two previously scheduled closing dates had passed, Dennison elected to take advantage of his right to conduct a pre-closing inspection. He and the brokers for both parties discovered damp insulation and damp walls in the basement.  Dennison requested another extension of the closing date to address these issues, but the Osborns rejected that request and the deal did not close.

The Osborns subsequently directed their broker to hold the earnest money and place the house back on the market.  They also told their broker that they intended to sue Dennison for actual damages after the house had been sold. Dennison requested his earnest money be returned, but did not receive it at that time.

The Osborns sold their house to another buyer in October 2005.  In April 2006, they filed a complaint against Dennison, which alleged breach of the sales agreement and sought actual damages. 

The Osborns say they never requested nor received the earnest money and that Dennison never authorized it to be released to them. Dennison filed a motion to dismiss, which apparently raised the defense that the Osborns had elected the liquidated damages represented by the earnest money.  On June 23, 2006, the Osborns directed their broker to return the earnest money to Dennison.  The circuit court denied the motion to dismiss in July 2006. The Osborns then filed an amended complaint, which noted that they had authorized the return of the earnest money and which again sought actual damages.

Summary judgment motions were filed by both sides.  The circuit court granted the partial summary judgment motion filed by Dennison and ruled that the Osborns were limited to collecting the $2,000 in earnest money as liquidated damages.  The circuit court believed that the Osborns had irrevocably elected the remedy of liquidated damages when they had refused Dennison's request in May 2005 for the return of his earnest money. The Court of Appeals affirmed. 

The Osborns ask the Supreme Court to review if under these circumstances they “retained” the earnest money and thereby irrevocably elected the remedy of liquidated damages and forfeited their right to actual damages. From Kenosha County.

2008AP519    Baldwin-Woodville Sch. v. West Central Ed.
In this case involving a dispute over a teacher’s pay rate, the Supreme Court has been asked to review application of the “perverse misconstruction” doctrine and if courts may vacate arbitration awards where parties gave the arbitrator express authority to decide procedure and timeliness.
Some background: Christine Johnson has been a full-time teacher at the Baldwin-Woodville School District's Greenwood Elementary School since the 2002-03 school year. At the time of her initial employment in August 2002, she was placed in the applicable compensation schedule, which reflected her graduate level education credits.  Her resulting salary was $28,808.

After a new contract was negotiated, her salary was reduced to $28,148 because she was mistakenly placed in the wrong category. Through the next two school years, Johnson was unaware of the change and did not inquire about or challenge it.  

On August 30, 2005, Johnson submitted a form titled "Request to Change Lanes for the 2005-06 School Year."  After verifying her graduate credits, the District placed Johnson in the higher pay lane for the 2005-06 school year, but did not compensate for past years. Johnson and the local association president met with the school superintendent, who brought the matter to the school board's attention.  In late June of 2006, the school board rejected Johnson's request for back pay.

On June 26, 2006, the Association filed a grievance with the superintendent on Johnson's behalf, alleging violations of the collective bargaining agreement.  The grievance was denied in a letter from the district's counsel, which said in part that the grievance was untimely.  A subsequent grievance was addressed to the school board and was also denied. 

The dispute went to binding arbitration before a Wisconsin Employment Relations Commissioner arbitrator, who rejected the district’s contention the grievance was untimely because it was not filed within 15 days of when Johnson became aware she was not being compensated in the appropriate category.

The District moved to vacate the arbitrator's award, arguing that the award exceeded the arbitrator's powers and authority and manifestly disregarded the law in violation of § 788.10(1)(d).  The circuit court denied the district's motion, concluding that the arbitrator's decision was rational and supported by the evidence. 

The District appealed, and the court of appeals reversed and remanded, concluding the grievance was not timely.

The Association says even if the court of appeals believed the arbitrator made the wrong determination, Wisconsin law is clear that a court may not vacate an arbitration award for errors of law or fact. 

A decision by the Supreme Court could clarify issues regarding the timeliness of grievances and the scope of appellate review of an arbitrator's decision. From St. Croix County.

Review denied: The Supreme Court denied review in the following cases. Supreme Court review is a matter of judicial discretion, not of right, and will be granted only when special and important reasons are presented. As the state’s law-developing court, the Supreme Court exercises its discretion to consider for review only those cases that fit certain criteria, but these criteria neither control nor fully measure the Court’s discretion (see Wis. Stat. (rule) § 809.62). Except where indicated, these cases came to the Supreme Court via petition for review by the party who lost in the lower court.

2007AP1566-CR State v. Charles

2007AP2588  St. Laurent v. Am. Mfrs.

2006AP3135  State v. Dillard

2007AP1278  Chobanian v. Meriter
Chief Justice Shirley S. Abrahamson dissents.

2007AP1976  State v. Lynch

2007AP1978  State v. Benson

2007AP2674-CRNM State v. Hall

Eau Claire
2008AP379-CR State v. Voss

Fond du Lac
2008AP1972  Jandre v. PIC
Chief Justice Shirley S. Abrahamson and Justice David T. Prosser, Jr. dissent.

2007AP2301  Thompson v. Town of Brooklyn

2007AP1921/22-CR State v. Hillebrand
Chief Justice Shirley S. Abrahamson did not participate.

2007AP2667-CR State v. Warnakulasuriya

La Crosse
2006AP2063  Thorn v. Olson

2007AP2345  Pozo v. Schneiter

2008AP2757-W Skorychenko v. Cir. Ct. for Marathon Co.

2007AP410-CR State v. Batson

2007AP802-CR State v. Dodd

2007AP1380-CR State v. Robinson

2007AP1469-CR State v. Sanders

2007AP2077  Cook v. Public Storage
Chief Justice Shirley S. Abrahamson did not participate.

2007AP2085-CR State v. Wuerzberger

2007AP2700-CR State v. Bernard

2007AP2855  City of Oak Creek v. Zielinski

2008AP323-CR State v. Burnett

2008AP2756-W Riley v. Thurmer

2008AP831-AC Sollman v. Polk County

2007AP2104  Co. of Portage v. Hintz

2007AP1664  State v. Britt

2007AP2390-CR State v. Oliver

2008AP172-W Miller v. Smith

2007AP1844  State v. Mayo
Justice Ann Walsh Bradley dissents.
Justice Patience Drake Roggensack did not participate.

2008AP35-CR  State v. Devenport
Justice N. Patrick Crooks did not participate.

2008AP941-CRNM State v. Hess
Justice N. Patrick Crooks did not participate.

2006AP2718  Weiss v. Martens

2007AP60-CR  State v. Sowle

2007AP1184  Thomas v. Schwarz

2007AP1730-CR State v. Ridley
Chief Justice Shirley S. Abrahamson did not participate

2006AP2395  Est. of Pulda v. State Farm
Chief Justice Shirley S. Abrahamson dissents.
Justice N. Patrick Crooks did not participate.

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