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Supreme Court accepts eight new cases

Madison, Wisconsin - October 5, 2009

The Wisconsin Supreme Court has voted to accept eight 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.

2007AP2711-CR State v. McGuire
This case, involving allegations of sexual assault by a priest, examines the statute of limitations’ tolling provision and whether a 36-year delay in prosecuting violated the rights of the accused.

Some background: Donald McGuire was a Jesuit priest, who at the time of the allegations taught at an academy in Illinois.

In 2003, Victor B. and Sean C. told police they were students at the academy during the mid-to late-1960s when they traveled separately and on different occasions to a cottage in Fontana, Wis., where McGuire allegedly had sexual contact with them.

A criminal complaint was filed in 2005, and a trial held during 2006. The jury convicted McGuire on five counts, and he was sentenced to seven years initial confinement and 20 years probation. The prison term was stayed while McGuire challenged the conviction. He claims the tolling provision of Wis. Stat. § 939.74 (1) (1966-69) is unconstitutional as applied to him, and that the delay resulted in prejudice. He also contends that new evidence was discovered and that many witnesses who would have aided in his defense are dead, and the memories of those who did testify at trial had faded.

The trial court rejected McGuire’s motion for post-conviction relief. The Court of Appeals affirmed, noting that the applicable statute of limitations contained a provision tolling “the time during which the actor was not publicly a resident within the state” and concluded McGuire’s rights weren’t violated. The Court of Appeals concluded that McGuire could not establish that the delay in charging was to gain a tactical advantage because there was no dispute that the state did not learn about the crimes until 2003.

McGuire acknowledges that Wisconsin’s usual six-year statute of limitations is tolled while a defendant is out of state, but he questions whether the unlimited tolling provision is constitutional where it undermines the accused person’s ability to present a defense.

The state contends the Court of Appeals correctly concluded that there was a rational basis for the tolling provision and that the defendant did not suffer actual prejudice because he was still able to confront his accusers and present a defense. From Walworth County.

2007AP2791 Admanco Inc. (Micael Polsky, receiver) v. 700 Stanton Drive, LLC
This case examines letters of credit under Wis. Stat. ch. 128, (2007-08) and the interaction of laws and relationships among parties involved in a real estate agreement and bankruptcy proceeding.

Some background: In 2004, 700 Stanton Drive, LLC (Stanton) had purchased an industrial building from Admanco for $2.5 million. Stanton leased the building back to Admanco, which provided Stanton a security deposit of $61,313.66 and an irrevocable standby letter of credit in the amount of $375,000 as part of the 15-year lease agreement.

On Dec. 30, 2004, Admanco filed an assignment for the benefit of creditors pursuant to ch. 128, and Michael Polsky was assigned as Admanco’s receiver. Admanco failed to make a Jan. 1, 2005 rent payment, and Stanton ultimately drew down the letters of credit and retained Admanco’s security deposit.

Polsky sued in an effort to recover excess lease payments from Stanton. Both parties moved for summary judgment. After a hearing on October 29, 2007, the circuit court entered judgment in favor of the Polsky in the amount of $513,292.66 plus statutory costs and fees. In making its decision, the circuit court focused on the application of the receivership statutes, specifically § 128.17(2), in determining that the landlord's claim was limited to past due rent and payment of the rate specified in the lease for the one-month period of occupancy by the receiver in January of 2005. Stanton appealed, and the court of appeals affirmed.

The question before the Court of Appeals was whether Stanton’s interests are limited to those of a landlord under Wis. Stat. § 128.17(2), or whether Stanton is a secured creditor under Wis. Stat. § 128.25(1)(e) and thus entitled to retain the proceeds of letters of credit outside the receivership proceeding.

The Court of Appeals concluded that a limit in § 128.17(2) applies to this landlord, whose tenant entered into a ch. 128 proceeding. Stanton contends that ch. 128 does not limit its claim because (1) Admanco rejected the lease by filing for receivership, and in any event, it is entitled to lease damages outside the receivership proceeding because (2) Stanton is a secured creditor; and (3) the proceeds from the letters of credit are not property of the estate.

Stanton argued that under the 1898 Bankruptcy Act, a landlord’s claims were not discharged in the bankruptcy proceeding and remained valid as they became due and owing. Polsky contends all the assets with which Admanco may have been able to pay were secured under the line of credit.

Admanco says Stanton has no claim in the receivership proceeding for past due rent because Admanco was current on its rent payments at the time the receivership petition was filed.

Stanton has asked the Supreme Court to review two issues:
1) if the beneficiary of a letter of credit from a bank which holds a general business security agreement on all of the debtor's property, is a "secured creditor" as that term is defined under § 128.25(1) and therefore outside the purview of ch. 128?; and
2) if it violates the "independence principle" in Wis. Stat. § 405.103 and common law governing letters of credit to allow an action against the beneficiary of a letter of credit arising out of the issuer's enforcement of its security interest against the debtor's estate?

A decision by the Supreme Court could clarify law in this area. From Fond du Lac County.

2008AP1204 State v. Pinkard
This criminal case examines the law as it relates to the “community caretaker” function of police and constitutional protections against unreasonable search and seizure.

Some background: Juiquin Anthony Pickard was convicted of possession of cocaine with intent to deliver and felony bail jumping. A circuit court denied Pinkard’s motion to suppress evidence obtained during a warrantless entry, and the Court of Appeals affirmed.

During a hearing on the suppression motion, an officer of the Criminal Intelligence Gang Squad testified that another police officer had received an anonymous call, indicating that two individuals were sleeping in a house where the door was open and cocaine, money and scales were present.

The officer testified that police knocked on the door, which was three-quarters open, and announced themselves as police. After 30 seconds to 45 seconds, police “made the determination to enter and check the welfare of the occupants,” and to determine if the occupants were victims of any type of crime. Police woke Pinkard in a bedroom, where they found cocaine, marijuana and scales in plain view and a pistol under a mattress.

The circuit court concluded that police were acting in their community caretaker function when they entered the residence and Pinkard’s bedroom. Pinkard was sentenced to three years initial confinement and five years of extended supervision. Charges of being a felon-in-possession of a firearm were dismissed after the circuit court granted that portion of the suppression motion.

Pinkard contends police used their community caretaker function as a pretext to provide cover for warrantless entry to investigate the presence of drugs and drug paraphernalia.

Pinkard argues that the officers did not articulate an objectively reasonable basis for performing a caretaker function under the facts of his case. The anonymous caller did not indicate concern for the occupants of the residence, and no paramedic was called, Pinkard contends. Police could easily have called the house or checked with neighbors to determine if there was any reason to expect an emergency situation, Pinkard contends. From Milwaukee County.

2008AP1703 Dawn M. Sands v. Menard Inc.
This case examines whether reinstatement of an employee as provided in an arbitration award is required when neither the employer nor former employee requested it as a remedy.

Some background: Dawn M. Sands was terminated from her employment as a vice president and executive general counsel with Menard after a dispute over compensation. Sands believed Menard was engaged in gender-based pay discrimination. The plaintiff's employment contract required arbitration of all employment claims. An arbitration panel found that Menard violated the Equal Pay Act by paying the plaintiff less than a similarly situated male employee. It also found that Menard retaliated against the plaintiff for asserting her rights in violation of the Equal Pay Act, Title VII of the Civil Rights Act of 1964, and the Wisconsin Fair Employment Act.

The arbitration panel awarded Sands approximately $1.4 million in compensatory and punitive damages. It also ordered Menard to reinstate the plaintiff to a position with a specified salary and bonus, although neither party had sought reinstatement.

Menard Inc. has asked the Supreme Court to review lower court decisions denying its motion to vacate a portion of an arbitration award requiring Sands’reinstatement to her former position. Specifically, Menard asks if its right to choose its general counsel must yield to the arbitration award when relations between it and the employee are irretrievably broken.

The court of appeals said Menard was essentially arguing that the arbitrators erroneously exercised their discretion in failing to explicitly consider that Menard did not want to reinstate the plaintiff. The court said it does not review arbitration awards for an erroneous exercise of discretion.

In its petition for review, Menard argues that, "supreme court review is critical to determine when a client can be forced to rehire counsel whom it has discharged, in whom it has lost confidence, and with whom it continues to be in direct conflict."

A decision by the Supreme Court is expected to clarify the competing public policy concerns of prohibiting employment discrimination and requiring a relationship of trust and confidence between a client and its attorney. From Eau Claire County.

2008AP3065-67/ 2009AP136-38 Sheboygan Co. DHHS v. Tanya M.B. and William S.L.
This case examines law regarding the termination of parental rights (TPR) and whether a trial court order that does not specify services for children, aside from inherent supervision by the county Department of Health and Human Services’ (DHHS), is invalid for failing to comply with Wis. Stat. 48.355.

Some background: The parents in this case, William and Tanya, both had histories of drug abuse and unsuccessful treatment attempts. On February 4, 2004, William commenced a jail sentence in Milwaukee. One day later, Tanya drove 50 miles to Milwaukee in freezing rain with the children – then ages 5, 4 and four months – in the car to purchase heroin. She then overdosed in the parking lot of a Glendale fast-food restaurant, leaving the car’s motor running. The children were “distraught” and had to be cared for by police while Tanya was transported to the hospital, unconscious, and they waited for extended family to arrive.

A CHIPS (Child in Need of Protective Services) petition was filed, and on March 25, 2004, the trial court signed a one-year dispositional order placing the children under county DHHS supervision. The children were placed with Tanya and William because they were then living with Tanya’s mother.

On December 17, 2004, the protective order was changed to formally place the children with Tanya’s mother. The children remained under court protection for another three years, which, according to Sheboygan County DHHS were “for William and Tanya a revolving door of jail, prison, probation revocation, alternatives to revocation, drug abuse treatment and counseling, and repeated relapses.”

On March 7, 2008, the county DHHS filed petitions for the involuntary termination of the parental rights of both William and Tanya to all three children, based on the underlying CHIPS dispositional orders entered on March 25, 2004. The TPR petitions cited William’s and Tanya’s failure to meet the conditions set forth in the CHIPS dispositional orders.

A jury ultimately found that the county DHHS had met its burden as to the elements underlying grounds for termination, including that it had made a reasonable effort to provide the services ordered by the court.

William and Tanya then both filed motions after asking the court to dismiss the cases based on the defect in the 2004 CHIPS order. The March 2004 dispositional orders set forth numerous conditions to be met for the return of the children; however, the court did not order any services to be provided to the child and family.

The trial court denied the motions to dismiss on the grounds that the “defects” in the orders had not been timely raised. Both parents appealed. The court of appeals reversed, concluding Wis. Stat. § 48.355 requires the trial court to order the Department to provide specific services in a CHIPS order.

A decision by the Supreme Court could have substantial impact, not only on this case, but potentially statewide as there are likely many CHIPS dispositional orders that don’t itemize services a county must provide. Such a decision also may resolve potentially conflicting Court of Appeals’ decisions. From Sheboygan County.

2008AP652-CR State v. Ringer
In this interlocutory appeal, the Supreme Court examines the threshold necessary for a defendant in a sexual assault case to introduce evidence at trial of the alleged victim's allegation of sexual assault in a previous case. An interlocutory appeal is an appeal that occurs before the trial court’s ruling on the entire case.

Some background: The state seeks review of an order that the defendant, Jim H. Ringer, could introduce evidence at trial of the alleged victim’s previous allegation against her biological father.

After testimony of the previous allegations, the trial court stated the defendant had met the burden of proving there was sufficient evidence to support a reasonable person's finding that the alleged victim had made prior untruthful allegations. The circuit court said that the biological father had made a statement to an investigator that "perhaps incriminates him," but there were competing inferences and no way to be determine with certainty which may have been truthful.

The Court of Appeals ruled that the circuit court properly allowed the evidence pursuant to Wis. Stat. § 972.11(2)(b)3 as untruthful allegations of sexual assault.

The state contends that lower courts misapplied the ruling in State v. DeSantis, 155 Wis. 2d 774, 456 N.W.2d 600 (1990), with respect to the threshold necessary to show the previous allegations were untruthful, and the holding in State v. Rognrud, 156 Wis. 2d 783, 457 N.W.2d 573 (Ct. App. 1990), by ruling that a prior untruthful allegation of sexual assault may be proven by extrinsic evidence. The state also contends, contrary to the court of appeals' decision, that it has not waived its right to raise the issue regarding proof by extrinsic evidence.

The state says a prior allegation of sexual assault is not proven untruthful just because there was not enough evidence or it was never prosecuted. In addition, there is no precedent addressing whether the failure to prosecute renders a prior allegation untruthful, according to the state.

Ringer did not respond to the state’s petition for review by the Supreme Court.

A decision by the Supreme Court is expected to send the case back to the trial court for a ruling on the entire case. From Barron County.

2008AP1521-CR State v. Imani
This criminal case examines the legal standard for mandating a new trial in a case where there is an inadequate colloquy followed by a denial of a request for the defendant to represent himself in court.

Some background: Rashaad A. Imani was convicted on one count of armed robbery, as party to a crime, and one count of possession of a firearm by a felon, both as a repeater. He was accused, along with his cousin, Raziga Imani, of robbing a West Allis bank in 2006.

Rashaad Imani pled not guilty and a joint trial date was set for both defendants. Before trial, Rashaad moved to suppress in-court identification of him on grounds that television news coverage may have tainted it. When the court denied the motion, Rashaad advised the court he wanted to represent himself in court.

The court asked Rashaad why he thought he was competent to represent himself. Rashaad told the court he had been “working on” his case for thirteen months, had a tenth-grade education, reads and writes English on a college level, was in court on at least five other matters with a lawyer. There was no discussion about the seriousness of the charges against Rashaad, the penalties that could be imposed, or the drawbacks or difficulties attendant to self-representation.

The court denied the motion, explaining he wanted “to preserve the trial date, maintain the opportunity to be prepared and go forward.” The court said that it was “willing to hear the motion again … but it is going to have to be in a context where I know the trial date is not going to be jeopardized.”

Rashaad responded that he “ha[d] no problem” with the trial date. The court then said that if given notice, it would consider letting Rashaad participate in opening statement, closing argument and questioning the witnesses.

Rashaad did not renew his motion. The matter went to trial with appointed counsel, and the jury returned guilty verdicts on both counts. Rashaad appealed, arguing that the trial court wrongly deprived him of his constitutional right to represent himself because he established a knowing, intelligent and voluntary waiver of his right to counsel, and that he was competent to proceed pro se.

The court of appeals rejected the claim that there was a valid waiver of counsel because the trial court failed to conduct a Klessig colloquy. See State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997). Pursuant to Klessig, if a defendant seeks to exercise his right of self-representation, the trial court must ensure that the defendant knowingly, intelligently and voluntarily waives the right to counsel, and is competent to proceed pro se.

The state has asked the Supreme Court to review the Court of Appeals’ decision ordering remand instead of a retrospective evidentiary hearing after finding that the circuit court failed to conduct the colloquy concerning self-representation under Klessig. From Waukesha County.

2008AP1700 Maryland Arms Ltd. Partnership v. Connell
In this landlord-tenant dispute, the Supreme Court is asked to examine whether a landlord and tenant may contractually agree to affix liability on a tenant for any property damage that, while caused by an act of the tenant, was not caused by the tenant’s negligence or improper use of the leased premises.

Some background: The facts are undisputed. On November 16, 2004, Cari Connell, a college student, entered into a rental agreement with Maryland Arms Limited Partnership to rent her first apartment. The lease was guaranteed by Cari’s mother.

On July 7, 2006, a fire caused by Cari’s hair dryer damaged the apartment. Cari was alone in her apartment, asleep, when the fire started. Her hair dryer, which was plugged in, caused the fire but the parties agree that Cari did not previously know of any defect in the hair dryer and did nothing more than plug it in. The fire caused more than $8,000 in damages; a judgment was later entered in the amount of $9,342.31. Maryland Arms filed suit to recoup the damages based on the terms of the rental agreement between the parties.

The parties, the trial court, and the court of appeals all agree that resolution of this dispute requires application of the stipulated facts to Wis. Stat. § 704.07, which regulates the duties of a landlord and tenant with respect to damages. However, the statute does not explicitly allocate liability in the situation where a tenant causes damage to an apartment but without negligence.

The Connells argue that Wis. Stat. § 704.07, which regulates the duties of landlords and tenants with regard to damages, requires that Cari must be negligent in connection with the fire as a precondition to the imposition of liability.

The circuit court disagreed, concluding that the lease provision made Cari liable to Maryland Arms “for all damage” to the apartment “in any way caused by the acts of” Cari Connell. The Court of Appeals reversed, concluding that Maryland Arms should be financially responsible for the fire damage.

Maryland Arms appeals to the Supreme Court. From Milwaukee 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).

2008AP2676-CR State v. Trombley

2009AP1855-W Akbar v. COA (WHC)
2009AP1769-W Kilaab Al Ghashiya v. State - Justice N. Patrick Crooks did not participate.
2009AP1816-W Bowers v. Brown Co. Cir. Ct.
2007AP2544-CR State v. Zendejas

2008AP1470 State v. Caver

2008AP17 Yates v. Holt-Smith - Justice Patience Drake Roggensack did not participate. Justices Annette Kingsland Ziegler and Michael J. Gableman dissent.
2008AP74 Regent Ins. v. LIRC
2008AP2932-34 Dane Co. DHS v. Robert A.
2009AP1732-W Staples v. Frank

2009AP740-W Skamfer v. Dodge Co. Cir. Ct.

2008AP1533-CR State v. Jardine

Fond du Lac
2008AP1763-CR State v. Mercer - Chief Justice Shirley S. Abrahamson concurs.

2008AP825-CR State v. Busk - Chief Justice Shirley S. Abrahamson and Justice David T. Prosser, Jr. dissent.

2009AP898-CR State v. (Mark D.) Jensen - Chief Justice Shirley S. Abrahamson and Justice Patience Drake Roggensack dissent.
2009AP872-W State ex rel. Flowers v. Boatwright
2008AP2263-FT First Banking v. Twelfth St. Inv.
2008AP1338-CR State v. Wesley

2007AP1791 Dandy Veal v. Midwest Milk

La Crosse
2008AP95 Schultz v. City of La Crosse
2008AP359 Winterfield Properties v. Woods

2009AP819-W/2009AP1293-W/2009AP1689-W/2009AP1821-W Maus v. Cir. Ct. for Langlade Co. - Justice Michael J. Gableman did not participate.

2008AP1692-CR State v. Bautista

2008AP1640-CR State v. Ridener - Chief Justice Shirley S. Abrahamson and Justice David T. Prosser, Jr. dissent.
2009AP2015-W Smith v. COA

2008AP501-CR State v. Heine
2008AP979 Est. of Her v. Scolman - Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley dissent.
2008AP1748-CR State v. Wisth - Justice David T. Prosser, Jr. dissents.
2008AP1754-CR State v. Thomas
2008AP2088 Bucyrus Int. v. Price Erecting - Justices Ann Walsh Bradley and David T. Prosser, Jr. dissent.
2009AP223 Automax v. Trunnel - Justice Annette Kingsland Ziegler did not participate. Justice Patience Drake Roggensack dissents.
2009AP1598-OA Brown v. DOC - Chief Justice Shirley S. Abrahamson dissents.
2006AP2670 Godoy v. E.I. du Pont - Justice Patience Drake Roggensack did not participate.
2007AP719/1335-CR State v. Reynolds
2008AP1186 State v. Edwards
2008AP1384-CR State v. Carter
2008AP1433-CR State v. Keil
2008AP1653-CR State v. Graham
2008AP1766 State v. Welsh
2008AP2308-CR State v. Smith
2008AP2609-W State ex rel. Thomas v. Thurman
2009AP1236-W Robinson v. Pollard
2008AP2020 Marriage of: Heppner
2008AP2379-CR State v. Lelinski
2009AP581-84 State v. Latoya P.
2009AP1458-W von Flowers v. Circ. Ct. for Dist. I - Justice N. Patrick Crooks did not participate.
2008AP2350-CR State v. Wilder
2008AP2473 Nastal v. Guarnero
2008AP3150-CR State v. McKindra
2009AP2180-W Aaron B. v. Cir. Ct. Milw. Co.
2007AP960-CR State v. Franklin
2007AP2358 Rath v. Rath
2008AP1054-W Nash v. Thurmer
2008AP1162 State v. Reynolds
2008AP1992 Mercado v. GE Money Bank
2008AP2961 GE Money Bank v. Terry
2008AP2962 GE Money Bank v. Rivera

2008AP1597 Terrance D. v. Tonia D.

2008AP2747-W Baskerville v. Smith

2008AP2273 Willett v. DOR - Chief Justice Shirley S. Abrahamson and Justices David T. Prosser Jr. and Michael J. Gableman did not participate.

2008AP135-CR State v. Ohlinger
2008AP1207-CR State v. Bridges - Chief Justice Shirley S. Abrahamson dissents.
2008AP1566/67 State v. Driggers
2008AP2514 Jaworksi v. Jess
2007AP2589 State v. Brown

2007AP2426 State v. Stone

2008AP321-CR State v. Shell

2008AP1850/51-CR State v. Akright
2008AP820-CR State v. Colwell

2008AP1500 Pegues v. Progressive

2008AP1165 Spanbauer v. DOT

Tom Sheehan
Court Information Officer
(608) 261-6640

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