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Supreme Court accepts four new cases

Madison, Wisconsin - August 3, 2010

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

2009AP567 State v. Miguel E. Marinez, Jr.
A decision in this child sexual assault case could clarify the law regarding the use of “other acts evidence” that arises when a child mentions the other acts during a videotaped statement.

Some background: Miguel E. Marinez was charged with sexually assaulting a four-year-old girl, prior to being arrested for burning the child’s hands with hot water in a separate incident.

The state sought to introduce the girl’s statements about the hand-burning incident in the videotaped interview for the jury in the sexual assault case. The state said the jury needed to hear the entire interview to establish facts about the case. The defendant objected, contending the facts could be established without reference to the burn incident

The circuit court concluded that evidence of the hand burn was offered for a proper purpose under Wis. Stat. § 904.04 (2) for establishing the defendant’s identity and context of the alleged sexual assault.

The circuit court determined that references to the hand burn in the video were needed to establish when and where the assault occurred. The jury found the defendant guilty of first-degree sexual assault of a child. He was sentenced to six years initial confinement and seven years extended supervision.

Marinez appealed. The Court of Appeals reversed, concluding that the state failed to meet its burden of proving the error was harmless. The Court of Appeals noted that the state referred to the hand-burning incident twice in its opening argument, and that the videotaped statement was played for the jury in its entirety.

In its petition for review, the state argues that review is needed because although there was case law on the admission of other acts evidence in cases involving child victims, none of those earlier cases involve other acts evidence that a child brings up when discussing a charged offense in a videotaped statement or any type of admissible statement. The state contends the Court of Appeals is overlooking the unique challenges presented by child victims. From Jefferson County.

2006AP1229   Casper v. Amer. Int. South Ins.
2006AP2512   Casper v. National Union Fire
2007AP369   Casper v. National Union

These three cases stem from a traffic accident in 2003. The Supreme Court is asked to clarify issues related to Wisconsin’s “direct action” statute and personal liability of a corporate officer.

Some background: Members of the Casper family and a friend were badly injured when their vehicle was rear-ended by a vehicle driven by Mark Wearing in Brown Deer in 2003.  At the time of the accident Wearing was co-employed by Transport Leasing/Contract, Inc. (TLC) and Bestway Systems, Inc. (Bestway).  The truck he was driving had been leased to Bestway by Ryder.  Litigation ensued.  Three separate appeals were filed.  Two of these are now before the Supreme Court. 

The first issue presented for review is wholly procedural and involves the question of what constitutes “excusable neglect.”  The Caspers filed suit against a number of parties, including, as relevant here, National Union, as an insurer of one of the driver's co-employers, TLC. 
The Caspers served National Union with an authenticated copy of the Fifth Amended Summons and Complaint, on May 5, 2006.  National Union failed to timely answer the amended complaint.  The Caspers promptly moved for default judgment.  On June 26, 2006, National Union filed an answer that was six days late and also moved to enlarge time for filing their answer. 
The circuit court found that National Union’s failure to file its answer in a timely manner was “excusable neglect” under Wis. Stat. § 801.15(2)(a).  Accordingly, the court granted National Union’s motion to enlarge time and denied the Caspers’ motion for default judgment.

The Caspers ask the Supreme Court to examine if, for excusable neglect, it is necessary to have evidence of the actions that caused the neglect or of the reasons why a “carefully structured process to respond to complaints” did not work if the party failed to timely respond.

The Caspers also ask the Court to examine if, under Wis. Stat. §§ 632.24 and 631.01(1), a direct action claim against an insurer can be maintained where the insurance policy was not delivered or issued for delivery in Wisconsin but the insurance policy covers the insured “business operations” conducted in this state.

The other petition raises a novel question about the personal liability of a corporate officer, in this case, Jeffrey Winhem, the CEO of Bestway, one of the employers of the driver.

The Caspers’ complaint alleges that Wenham is personally liable in negligence for approving the route that Wearing was driving the day of the accident, knowing that the route could not be safely completed pursuant to federal regulations.  Initially, the circuit court granted Wenham’s motion for summary judgment, dismissing all of the Caspers’ claims against Wenham as an individual.  The Caspers filed a motion for reconsideration.  On reconsideration, the circuit court reinstated the negligence claim against Wenham, agreeing with the Caspers that it had erred in finding that there was no evidence or testimony that Wenham personally approved the route.  Wenham appealed and the Court of Appeals affirmed.

Wenham’s petition presents the following issues for review by the Supreme Court:
1. Can a corporate officer be held personally responsible for negligence that occurs while he is performing his job and is within the scope of his employment for a solvent and insured corporation?
2. Do public policy factors and a lack of foreseeability preclude a finding of negligence on the part of Jeffrey Wenham as a matter of law?  From Milwaukee County.

2009AP246 Deanne Phillips v. U.S. Bank N.A.
This case examines that nature of bonus and incentive pay under an at-will employment relationship. The Supreme Court is asked whether, under the circumstances in this case, an employee has a cause of action for breach of implied duty of good faith and fair dealing.

Some background: As a U.S. Bank employee, Deanne Phillips worked in financial-planning positions from January 1998 until October 2007, when she was fired. The employment relationship was “at-will.” Nonetheless, the Bank’s alleged reasons for terminating Phillips’ employment became an issue during these proceedings, because Phillips alleged that the Bank fired her to avoid paying her compensation she was owed under a benefits plan.

U.S. Bank asserts it fired Phillips on Oct. 26, 2007 because she knew about the plans of a co-worker to go with a competitor but lied to her boss when asked. Phillips contends her boss did not ask about plans of her co-worker.

Phillips’ annual salary was $82,002. Her complaint alleges her employment contract with the Bank provided she would be paid her salary, plus bonuses and incentive pay. The complaint asserts that the agreement provided Phillips would be paid 15 percent of the first year earnings on all accounts she would sell, divided into four quarterly payments.

Phillips asserts $18,373 of her 2007 sales bonus was due and payable as of October 2007, with the remaining $28,350 due and payable during the first three quarters in 2008. She states that the Bank deposited to her account and then withdrew the $18,373 October installment of the 2007 sales bonus.

The bank moved, and the circuit court entered a summary judgment of dismissal. Phillips appealed.

The Court of Appeals ruled: (1) an at-will employee does not forfeit benefits that have accrued during employment, even though the plan governing those benefits conditions their receipt on the employee’s continued employment, if the employer fires the employee solely to prevent her from obtaining the accrued benefits; and (2) genuine issues of material fact exist as to whether the reasons U.S. Bank gave for firing Phillips were pre-textual.

The bank stated that under the benefits plan, payments to employees were completely discretionary, and the plan requires Phillips to be employed at the time of payment. Because Phillips was an “at-will” employee, whose employment ended before actual payment, the Bank asserted she was ineligible for payment under the terms of the plan.

Chief Justice Shirley S. Abrahmson and Justice Annette Kingsland Ziegler did not participate. From Milwaukee County.

2008AP3235 Clean Water Action Council of Northeast Wis. et al v. DNR
In this case, the Supreme Court examines issues arising from a dispute between environmental advocates and the state Department of Natural Resources (DNR) over re-issuing a wastewater discharge permit for paper manufacturing plant in Green Bay. A decision by the Supreme Court could have broad statewide implications for industries regulated by the permits.

Some background: On May 27, 2005, the DNR issued a public notice of its intent to re-issue a Wisconsin Pollutant Discharge Elimination System (WPDES) permit to Fort James Operating Co., which was subsequently acquired by Georgia-Pacific Consumer Products.

The DNR instructed interested citizens to submit written comments or request a public hearing on the proposed permit within 30 days.

A copy of the proposed permit accompanied the public notice. In lieu of limiting mercury discharges, the proposed permit required mercury sampling under an alternative limitation plan authorized by Wis. Admin. Code § NR 106.145 (May 2005). The proposed permit also included a phosphorus effluent limitation, compliance with which was to be determined as a rolling 12-month average.

The Cleanwater Action Council of Northeastern Wisconsin (the Council) objected to the proposed phosphorus limitations, claiming the DNR failed to conduct a “reasonable potential analysis” required by federal law to determine the impact of additional phosphorus discharges on water quality. The comment also alleged state rules permitting expression of phosphorus effluent limitations as a rolling 12-month average violated federal law and that the DNR violated state law by failing to perform an anti-degradation analysis. The Council did not contest the permit terms governing mercury sampling.

On Aug. 24, 2005, the DNR determined none of the Council’s objections merited further action and decided to re-issue the permit. The Council was ultimately denied a public hearing on many of its challenges to permitted phosphorus discharges since the DNR summarily concluded it lacked authority to resolve any challenge based on federal law.

On April 13, 2006, the Council petitioned for judicial review. It also requested a judgment declaring that the availability of a § 383.63, Stats., public hearing is not conditioned on having raised issues during the public comment period.

The council claims the DNR and Brown County Circuit Court (1) incorrectly interpreted Wis. Stat. § 283.63 to require that contested issues be raised during the public comment period to preserve them for consideration during later proceedings; and (2) improperly concluded the DNR lacks authority to determine whether the permit violates federal law.

The Council also sought judgment declaring that the DNR was required to comply with federal regulations and invalidating several state administrative code provisions relating to phosphorus and mercury discharges as conflicting with federal law.

The circuit court dismissed the Council's petition and affirmed the DNR's decision. The Council appealed, and the Court of Appeals reversed and remanded for a public hearing to be conducted in accordance with the procedures set forth in § 283.63. The Court of Appeals concluded, among other things, that the DNR possesses authority to determine whether provisions within a state-issued wastewater discharge permit comply with federal law.

The DNR now asks the Supreme Court to review the Court of Appeals’ decision. More specifically, whether an administrative permit review hearing is the appropriate forum for disputes over the application of federal law. From Brown 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).

2009AP292-CR  State v. Hallet
2009AP1742  State v. Carter

2009AP1684-CR State v. Huggett

2009AP3090 Calumet Co. DHS v. Amber S.L.

2009AP1536 State v. Poirier

2008AP963 J.L.D. v. Hay
2008AP2549-CR State v. Dressler
2008AP2919/20-CR State v. Ziegler
2008AP3050 State v. Oliver
2009AP491 State v. Tanon
2009AP832 Gen. Cas. Co. v. Choles - Chief Justice Shirley S. Abrahamson did not participate.
2009AP1162   State v. Rice
2009AP1725/26-CRNM State v. Wilson
2009AP2038  Dane Co. DHS v. James M.
2010AP391-W Lynch v. Circ. Ct. for Dane Co.
2010AP656-W Maldonado v. Cir. Ct. for Dane Co.
2010AP1112-W Grissom v. Doyle
2010AP1276-W Grissom v. Seitz

2009AP224  Knight v. Thorn Apple Valley
2010AP1059-W Grissom v. Potter

2008AP3217-CR State v. Fisher

2009AP1962-W Faulkner v. Hepp

Eau Claire
2009AP2244-CRNM State v. Robinson
2010AP1077-OA Menard v. Sands

Fond du Lac
2008AP1763-CR State v. Mercer
2009AP1370-CR State v. Rico
2010AP1234-W  Pflum v. Dittmann

2010XX372-W State v. Busk

2008AP1670-W Ramirez v. Boatwright
2008AP2758-CR/2009AP386-CR State v. Mosley
2009AP429-CR  State v. Lewis
2009AP436-CR State v. Morris
2010AP1042-W  Jean-Paul v. Boatwright

2010AP13  Bridget A.M. v. Justin E.H.

2010AP1114-OA Smith v. Cir. Ct. for Marathon Co.

2007AP2096-CR State v. Sholar
2008AP2656-CR State v. Price
2008AP2700-CR State v. Wilson
2008AP2786   State v. Rausch
2008AP3078   Rodriguez v. DHFS
2008AP3180-CR  State v. Walker
2008AP3183-CR State v. Jackson
2009AP257/58-CR State v. Rowell
2009AP324-CR  State v. Brown
2009AP417-CR  State v. Hasselkus 
2009AP427-CR  State v. Brown
2009AP784-CR State v. Ramage
2009AP786-CR State v. Reynolds 
2009AP815-CR  State v. Sterling
2009AP848-CR  State v. Boose
2009AP871-CR  State v. Brown
2009AP889-CR State v. Evans
2009AP958-CR  State v. Duckett
2009AP1093  State v. Covington
2009AP1060  State v. Collins
2009AP1114  State v. Munson
2009AP1130  Mallett v. LIRC
2009AP1136-CR State v. Watson
2009AP1224-CR  State v. Anderson
2009AP1311   State v. Stapleton
2009AP1313-CR State v. Pugh
2009AP1331-CR  State v. Keck
2009AP1400-W White v. Pollard
2009AP1449-CR  State v. Jackson
2009AP1498-CR State v. Brown
2009AP1583-CR  State v. Corrao
2009AP1619-CR State v. West
2009AP1721-CR State v. Castellano
2009AP1864-CR  State v. Eichorn
2009AP1875   State v. Ellis
2009AP1892-CRNM State v. Welch
2009AP3098  State v. Maceo W.
2010AP77-W  Carmichael v. Triad Financial Corp.
2010AP119-W Brown v. Pollard
2010AP718-D  Griffin v. Cir. Ct. for Milw. Co.
2010AP1352-W Aaron B. v. Cir. Ct. Milw. Co.
2010AP1368-W Johnson v. COA, Dist I

2008AP1037-CR State v. Rosche

2009AP624  McLaughlin v. Hoffman
2009AP2487  Peter H. v. Keri H.
2010AP1011-W  Walker v. Gehring

2008AP2535-CR State v. Ware
2009AP1165-CR State v. Kobin
2009AP2155/56-CRNM State v. Seiler

2008AP1952/53-CR State v. London

2008AP3145-CRNM  State v. McKinney
2009AP8-CRNM State v. Bates
2009AP511-CR State v. Chernota
2009AP677-CR State v. McClain
2010AP873-W  Jones v. Pollard
2010AP1346-W Bates v. Carlson

2009AP21  Glaum v. City of Hayward

2009AP1562-CR  State v. Futch

2009AP1013   State v. Kamlager
2009AP1183-CR  State v. Westlund

2009AP315-CR State v. Holder

2008AP2810-CR State v. Schroeder
2009AP747  Loppnow v. Bielik
2009AP2234-CRNM State v. Mendoza

2008AP2291  State v. Mascaretti
2009AP884   Tran v. Speech
2009AP1610-CR  State v. Scott

2009AP772-CR State v. Rosenthal

Tom Sheehan
Court Information Officer
(608) 261-6640

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