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Supreme Court accepts two new cases

Madison, Wisconsin - June 23, 2009

The Wisconsin Supreme Court has voted to accept two 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.

2008AP552-CR State v. Scott R. Jensen
In this case, the Supreme Court has been asked to review whether Wis. Stat. § 971.19(12), which provides that defendants charged with certain election and campaign violations are to be tried in the county where the defendant resides, applies to the facts of this case.

Some background: In October 2002, Scott R. Jensen was charged in Dane County Circuit Court with misconduct in public office for allegedly using state resources for political campaign purposes in violation of Wis. Stat. § 946.12(3). Jensen, a Republican who represented the 32nd Assembly District, was Assembly Speaker at the time.

Jensen moved to dismiss the charges against him, arguing that the misconduct in public office charge was unconstitutionally vague because the statute does not define Jensen’s duties as a public officer.

The Court of Appeals affirmed the order denying Jensen’s motion, explaining that the duties Jensen had been charged with violating in his capacity as a public officer were found in various places, including in the elections and ethics statutes under Wis. Stat. chs. 11, 12 and 19. State v. Jensen, 2004 WI App 89, ¶¶1-2, 10, 29, 272 Wis. 2d 707, 681 N.W.2d 230.

Following a jury trial, Jensen was convicted of misconduct in public office. He appealed, and the Court of Appeals reversed and remanded for a new trial, based on the trial court’s erroneous jury instruction and wrongful exclusion of part of Jensen’s testimony. State v. Jensen, 2007 WI App 256, ¶1, 306 Wis. 2d 572, 743 N.W.2d 468.

In February 2007, while Jensen’s appeal was pending, the Wisconsin Legislature enacted legislation to create the Government Accountability Board (GAB) and set out its responsibility for administering laws related to elections and campaigns. It also created Wis. Stat. § 971.19(12), which provides that defendants charged with certain election and campaign violations are to be tried in the county where the defendant resides.

Based on the newly created venue statute, Jensen moved the circuit court to transfer his case from Dane County, where the misconduct is alleged to have occurred, to Waukesha County, his place of residence. The court denied the motion, concluding that § 971.19(12) does not apply to the charges pending against Jensen. Jensen appealed, and the Court of Appeals affirmed. The Court of Appeals concluded, in part, that while the elections and ethics chapters provide one source of Jensen’s overall duties as a public officer, Wis. Stat. § 946.12(3) is a criminal statute found under an entirely separate chapter.

The Court of Appeals concluded that if the legislature had intended to include misconduct in public office charges within the final category of § 971.19(12), it could have easily done so by including that statute in the enumerated statutes.

Jensen has argued that his case is a matter involving elections and ethics and falls under § 971.19(12). He also contended that the terms “the investigation” in the statute is not limited to GAB investigations, but rather must mean any investigation, because there is no limiting language in the statute. He asserts that to interpret “the investigation” to mean only investigations authorized by the GAB improperly inserts “GAB” into the statute, to make it read “the GAB investigation.”

Justice David T. Prosser did not participate. From Dane County.

2008AP967 Schill v. Wisconsin Rapids School District
This certification from District IV Court of Appeals asks the Supreme Court to determine whether the personal e-mails of public employees that are maintained on publicly owned computers are subject to disclosure under the public records law.

Some Background: In April 2007, a private citizen, Don Bubolz, filed a request with the Wisconsin Rapids School District under the public records law, Wis. Stat. §19.31 et seq., for all e-mails sent from the computers assigned to five teachers for the period of March 1, 2007, through April 13, 2007.

Bubolz later said he was making the request as a “fishing mission” to determine if the teachers had been using their District e-mail accounts for more than just occasional personal messages. The District’s computer use policy allowed its teachers and other employees to use the District’s e-mail for occasional personal use. District employees are advised that the District owns not only the computers, but the e-mail accounts used by the employees.

The District informed the teachers that it intended to release all of the requested e-mails. It concluded that the e-mails constituted public records, in large part because they were maintained on a public computer network.

The teachers filed an action seeking an injunction to block the release of their personal e-mails. They did not object to the release of any e-mails regarding their work. The circuit court denied the injunction and affirmatively ordered the District to release all of the personal and work-related e-mails. The court did direct the District to delete personal information, including home addresses, medical information, bank account numbers, etc.

The Court of Appeals’ certification memorandum notes that the first issue to be decided is whether the personal e-mails are “records” under the public records law. According to the parties and the Court of Appeals, there is no published case in Wisconsin that addresses whether purely personal e-mails kept on a public computer constitute public records under the statute.

If the e-mails are found to constitute “records” under the public records law, the Supreme Court will be called upon to decide whether the presumption favoring disclosure of public records is overcome by the public interest in protecting the privacy and reputational rights of its citizens? This question will essentially involve a balancing of the relevant public policies. From Wood 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).

2008AP2228-FT City of Washburn v. Kreinbring

2008AP1681 Kuehl v. Sentry Select
2008AP1694 State v. Bossell

2008AP1922-CR State v. Irwin

2008AP2404/06 Crawford Co. DHS v. Rose M.O.

2006AP2250-NM State v. Whiteman
2008AP1527-W Barnett v. Boatwright
2009AP171-OA Kingstad v. State Bar

Eau Claire
2008AP1278 State v. Thomas
2008AP1547-CR State v. Gardner

Fond du Lac
2007AP2742 State v. Thiel
2008AP852-CR State v. Lor
2009AP1014-W Amble v. Watters

2008AP2865/67-CR State v. Tennant
2009AP480-W Franklin v. Grams

La Crosse
2008AP3027-W Her v. Grams

2008AP605 State v. Bell
2008AP2850-CRNM State v. Figueroa

2007AP521-CR State v. Cook

2007AP1282-CRNM State v. Avery
2007AP1877-CR State v. Howard
2007AP1954-CR State v. Orengo
2007AP2160-CR State v. Gonzalez
2007AP2724-CR State v. Simmons
2008AP395-CR State v. Chaney
2008AP408-CR State v. Reeves
2008AP510 Allright Properties v. City/Milw. - Justice David T. Prosser, Jr. dissents.
2008AP539 Recely v. Dillon
2008AP610 State v. McGhee
2008AP651-CR State v. Jackson -  Justice Ann Walsh Bradley dissents.
2008AP888 State v. Brown
2008AP948-CR State v. Alvarado-Reyes
2008AP1060 State v. Davila
2008AP1061-CR State v. Perez
2008AP1178/1765-CR State v. Butler
2008AP1182-CRNM State v. Berry
2008AP2150 State v. Holman
2008AP2244 Arthur v. State
2008AP3171 State v. LaShaun J.
2009AP53-W Ellis v. Grams
2009AP497-W Duckworth v. Pollard
2009AP885-W Bowers v. Circ. Ct. Milw. Co.
2009AP1078-OA Childs v. Cir. Ct. for Milw. Co.
2009AP1197-OA Thomas v. Cir. Ct. for Milw. Co.

2008AP2255-CR State v. McKinney
2009AP886-W Bowers v. Circ. Ct. Outagamie Co.

2007AP2755 State v. Johnson

2008AP2339 Co. of Price v. Thompson

2007AP2591-CRNM State v. Walton
2009AP751-W Grindemann v. Humphreys

2008AP1427/28-CR State v. Bufford

2007AP2941-CR State v. Becker

2008AP70-CR State v. Truax
2008AP496 Kowske v. Ameriquest
2008AP511 Sanitary Dist. No. 4 v. City/Brookfield
2008AP1431 Wagner v. Lamb

2008AP1793 Town of Clayton v. Cardinal Const.

2007AP2962-CR State v. McKinney

Tom Sheehan
Court Information Officer
(608) 261-6640

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