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Supreme Court accepts six new cases

Madison, Wisconsin - February 23, 2011

The Wisconsin Supreme Court has voted to accept six 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 available online for the newly accepted cases are hyperlinked.

2008AP2759-CR State v. Daniel H. Hanson
The principal issue in this case is whether a person can be convicted of attempting to elude an officer while they are speaking with 911 and driving to a police station. More specifically, the Supreme Court is asked to review the application of Wis. Stat. § 346.04(3) to the facts of this case. The case also raises the question whether the real controversy was tried because the trial court excluded certain evidence.

Some background: Some of the facts in this case are disputed. Daniel H. Hanson was pulled over for speeding on I-94 near Kenosha.  The officer who stopped the vehicle had a "ride along" passenger in the squad car. 

Apparently, after both vehicles came to a complete stop, Hanson exited his vehicle with his driver's license in hand. Deputy Eric Klinkhammer also exited his squad car and approached Hanson telling him to get back into his car. The two had some sort of "exchange." Hanson and the arresting officer each testified that the other person used loud and threatening language and conduct and that he himself behaved in a controlled manner.

Once back in his vehicle, Hanson testified that he was really scared, immediately called 911, requested directions to the nearest police station and proceeded to the station, ignoring the officer's instructions to pull over.

In the 911 tape introduced at trial, "Hanson can be heard informing the 911 dispatcher that he was going to the police station and that he would not pull over because he believed the officer would beat him with a stick [and] he was scared for his life." 

Hanson was arrested and eventually charged with two counts of obstructing an officer and one felony count of eluding an officer. Hanson was convicted on both counts, and the Court of Appeals affirmed the convictions.

The first question presented is whether a person can be convicted of attempting to elude an officer while on the phone with 911 and driving to a police station.  The Court of Appeals reviewed the plain language of the statute and concluded that the answer is "yes" and published its decision.

The next question was whether there was sufficient evidence at trial to support Hanson's conviction for eluding an officer.

The Court of Appeals ruled that there was sufficient credible evidence that Hanson's actions "interfered with or endangered the operation of other vehicles or pedestrians." Klinkhammer testified that Hanson interfered with vehicles as he cut over to exit at Highway 50, noting that Hanson had to swerve to avoid hitting a squad car parked at the bottom of the off-ramp. 

Hanson, however, maintains that none of this captures the real controversy and the case should be retried. Hanson asserts that this case is about a citizen's right to protect himself from a perceived threat from law enforcement and that the trial court improperly excluded character evidence relating to Klinkhammer's reputation in the community as being "confrontational, aggressive and hot-tempered."

The Court of Appeals noted that the jury heard Hanson's testimony that Klinkhammer screamed "at the top of his lungs," took out his baton, acted "gruffly" and "angrily" in taking Hanson's license, grabbed him, ripped his shirt, and struck him on the back of the head.

The jury also heard testimony from four character witnesses that Hanson is a truthful and fair person.  Thus, the court was not persuaded that excluding testimony that Klinkhammer had a reputation for being "hot-headed" prevented the real controversy from being fully tried.

The state objected that the proposed testimony would come "dangerously close" to "other acts" type of situation. Hanson contends that the excluded character evidence "would have been very helpful to the jury as one of the main issues in the case was self-defense." From Kenosha County.

2009AP2907-CR State v. Spaeth
In this certification, the Supreme Court examines whether compelled incriminating statements made to a probation agent as part of a standard requirement of probation may be considered a "legitimate source wholly independent of compelled testimony" under Kastigar v. United States, 406 U.S. 441 (1972). In that case, the U.S. Supreme Court held that the government may compel incriminating testimony so long as it comes with a grant of use and derivative use immunity.

Some background: Defendant Joseph Spaeth, a convicted sex offender, was on extended supervision in 2006 with the standard condition that he must comply with polygraph examinations as requested by his probation agent. 

Failure to comply with testing would have been grounds to revoke his extended supervision. 

On February 15, 2006, the defendant's probation agent ordered a routine polygraph test.  After the test, while the agent and examiner were discussing the results, the defendant disclosed to his agent that he had been "horse playing" with his nieces and nephews, who were children.  His statements indicated a clear violation of his rules of extended supervision, so his agent called police to take him into custody on a probation hold.  After police were called, the defendant admitted to his agent that he had been tickling his nieces and nephews and may have brushed their genital and chest areas.

Police went to where the defendant had been meeting with his probation agent, handcuffed him, and put him in the back of a squad car.  While the defendant was present, his agent told police about statements the defendant had made to her.  The defendant was taken to the police station, where he was given his his Miranda warnings.

The defendant told police essentially the same thing he had told his agent.  He also said he knew he had a problem and that his actions were wrong.  Based on the defendant's written and oral statements to police, a criminal complaint was filed charging him with four counts of sexual assault of a child as a persistent repeater.  After a failed motion to suppress, a jury convicted him of all four charges. He was sentenced to life in prison without possibility of parole. 

In October of 2008, the circuit court granted a post-conviction motion for a new trial on the ground that extraneous, prejudicial information had affected jury deliberations.  (It was discovered that one of the jurors had recognized the defendant's address as the address of a registered sex offender and shared that information with the other members of the jury.)  The defendant later pled no contest to an amended information charging him with four counts of child enticement.  He was sentenced to five years of initial confinement and ten years of extended supervision and appealed.

On appeal, the defendant argues that his statement to police should have been suppressed under the Fifth Amendment to the U.S. Constitution and Article I, § 8 of the Wisconsin constitution.  The defendant argues that his statement was a mere extension of compelled statements he made to his probation agent and thus must be suppressed because it too was compelled. 

The  District II Court of Appeals says because the defendant's statements before speaking to police were compelled, the statement he made to police is only admissible if there was a sufficient break from the compelled statements and if the statement to police was not "derived from" the compelled statements

The Court of Appeals points out that under Wis. Admin Code § DOC 328.04(2)(w), the defendant's probation agent was required to report all violations of the criminal law by clients to a supervisor or appropriate law enforcement authority.  Therefore, the Court of Appeals says once the defendant was compelled to give his incriminating statements to the polygraph examiner and to his probation agent, the agent had a legal obligation to report the statements to police.

The Court of Appeals concludes by saying this area of law is in need of clarification because the fact pattern here will likely recur and because of the tension between Kastigar and the needs and policies of the DOC.  From Winnebago County.

2009AP2176 Maxwell v. Harford Union High 
This case examines whether an insurance company defending a school district owes the district coverage for damages after the district lost a breach of contact lawsuit filed by a teacher whose job was terminated due to budget concerns.

Some background: In 2007, the district notified Dawn Maxwell, the director of special ed./pupil services it was terminating her contract at the end of the 2006-07 school year.  Maxwell, who filed a breach of contract suit, had a contract that included the 2007-08 school year. 

At the time, the district had a public entity liability policy issued by Community Insurance Corporation (CIC) and administered by Aegis Corporation.  In June of 2008, the circuit court found that the district was liable for breach of Maxwell's employment contract and awarded her compensatory damages in excess of $103,000 in salary and benefits. The circuit court rejected her request for attorney fees in excess of $44,000.

Shortly after the June 2008 determination of liability, the district's director of business services wrote to the Aegis litigation manager demanding a new attorney because the district believed there was a conflict of interest.  Although it disputed whether there was actually a conflict of interest, Aegis agreed to appoint the district's current general counsel to replace the first attorney. 

On July 24, 2008, general counsel for the district emailed the Aegis litigation manager claiming that CIC was obligated to pay the damages that might be assessed. The Aegis litigation manager responded that the CIC policy issued to the district contained a clause specifically excluding coverage for amounts due under a performance contract and for lost wages and benefits.  He said while CIC would not pay for any liability attributed to the district, it would continue to represent the district.

The district sought a declaratory judgment that the CIC policy provided coverage and that CIC was barred from asserting coverage defenses and policy limit defenses. The district argued there is an exception to this rule in situations where the insurer fails to notify the insured of a coverage issue until after the insured suffered prejudice.

The circuit court concluded the critical issue presented was whether, regardless of the exclusion of coverage, CIC's conduct created coverage where none would otherwise exist. The circuit court said there was a split of authority as to whether, based on waiver, estoppel, negligence, failure to disclaim, or substantial prejudice, an insurer's conduct can create coverage where none otherwise exists. 

The circuit court held that CIC's conduct could not be determined to create coverage.  The district appealed, and the Court of Appeals reversed and remanded. The Court of Appeals said in part that the pertinent facts in this case were undisputed and the legal issue presented is whether CIC's exercise of dominion over the underlying lawsuit, without a reservation of rights, operated to provide coverage to the district.

CIC argues that the Court of Appeals confused the duty to defend with the duty to indemnify.  It says pursuant to its duty to defend, it furnished counsel to defend the district on the merits of all claims alleged in Maxwell's complaint. 

CIC also argues the Court of Appeals' decision effectively extinguishes any obligation by insureds to actually read their policies.  It says the first sentence of the district's liability policy said, "Various provisions in this policy restrict coverage.  Read the entire policy carefully to determine rights, duties and what is and is not covered."

A decision by the Supreme Court could have significant financial implications for insurance companies and consumers statewide. From Washington County.

2009AP2422 State v. David W. Domke
In this child sexual assault case, the Supreme Court examines law surrounding a claim of ineffective assistance of counsel.

Some background: A jury convicted David W. Domke of repeatedly sexually assaulting a relative. The defendant filed a postconviction motion alleging that trial counsel Terrence Woods was deficient in a number of respects. Following a hearing, the trial court denied the motion.  The defendant appealed, and the Court of Appeals reversed and remanded.

The Court of Appeals noted that in order to establish ineffective assistance of counsel, a defendant must show both deficient performance and prejudice.  See Strickland v. Washington, 466 U.S. 668, 687 (1984).  It noted in order to establish deficient performance, a defendant must show that counsel's representation fell below an objective standard of reasonableness and must overcome the presumption that counsel's conduct falls within the wide range of reasonable professional assistance. To show prejudice, a defendant must show a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. 

The Court of Appeals noted that one of the state's witnesses, social worker Kim Rusch, testified without an objection regarding the victim's depiction of the sexual assaults.  The Court of Appeals said Rusch's testimony was inadmissible hearsay.  It noted that at the post-conviction hearing, counsel said he believed the testimony of a therapist was admissible over a hearsay objection and he was not aware that the exception for medical diagnosis or treatment in § 908.03(4) does not apply to a social worker.

The Court of Appeals said Rusch's testimony was prejudicial not only in its repetition of the victim's allegations but also due to counsel's improvident questions on cross-examination, which included twice asking Rusch whether the victim might have dreamed that she was sexually assaulted.

The Court of Appeals concluded since a reasonable attorney would have precluded all of Rusch's testimony with a hearsay objection, and if Rusch testified at all, would not have asked questions that invited her to comment on the victim's credibility.

The Court of Appeals went on to conclude that counsel's more serious error consisted of calling the victim's mother as a witness for the defense without first interviewing her. Based on police reports, counsel said he believed the victim's mother would support her husband against her daughter's allegation. However, the Court of Appeals said that before trial, the defendant informed counsel that the mother had been vacillating in that regard. The Court of Appeals concluded that counsel performed deficiently in two respects, the cumulative effect of which undermined confidence in the outcome of the trial.

In its petition for review, the state acknowledges that whether an act or omission by defense counsel constitutes deficient performance under Strickland normally does not warrant Supreme Court review because resolution of the issue will depend on the specific facts of the individual case.  The state argues this case is different because it presents the question of whether counsel's ignorance of a relevant case automatically means that counsel's performance was deficient or whether other factors should enter into the determination.

 The state argues this court's resolution of that issue will give guidance to lower courts and the defense bar by clarifying the extent to which defense attorneys must acquaint themselves with the finer points of Wisconsin case law or risk having their performance deemed deficient. 

The state's petition raises the following issues:

  • Did defense counsel perform deficiently under Strickland v. Washington, 466 U.S. 668 (1984), because he mistakenly believed that statements the victim made to a therapist during the course of treatment for mental health issues fell within the hearsay exception for statements made for purposes of medical diagnosis or treatment contained in Wis. Stat. § 908.03(4)?
  • Did defense counsel perform deficiently when he asked Rusch, the therapist who had treated the victim, whether it was possible that what the victim described as the first of a series of sexual assaults was really a dream?
  • Did the Court of Appeals err in finding that Domke suffered prejudice under Strickland v. Washington from the cumulative effect of counsel's decision to call the victim's mother as a witness and his failure to seek exclusion of Kim Rusch's testimony under State v. Huntington, 216 Wis. 2d 671, 695, 575 N.W.2d 268 (1998)?

From Oconto County.

2010AP445 State v. Sharon A. Sellhausen
This case examines whether a trial court must on its own initiative, or sua sponte, remove a family member from a panel of potential jurors, and whether the defendant is entitled to a new trial even though the family member did not sit on the jury because the defendant exercised a preemptory strike to remove the juror.

Some background: At Sharon Sellhausen's jury trial for battery to a police officer and disorderly conduct, both as repeat offenders, the circuit court judge's daughter-in-law was on the panel of potential jurors.

Defense counsel did not move to strike the judge's daughter-in-law for cause but instead exercised his peremptory challenge.  At the post-conviction hearing, trial counsel testified he thought it best not to have a member of the judge's family on the jury but at the time of trial did not know of a specific ground he could have used to move to strike her for cause. 

However, he mentioned the judge's questioning of his daughter-in-law and the daughter-in-law's affirmation of her ability to be impartial as the reason he did not believe he could strike her for cause.

At the postconviction hearing, the trial judge stated on the record that before voir dire he had met with both attorneys to let them know that his daughter-in-law would be on the panel. This discussion between the trial judge and the attorneys was off the record. Sellhausen's trial counsel could not recall this conversation well enough to confirm or deny its substance at the post-conviction hearing. The circuit court judge stated, however, that he remembered telling the attorneys he would be happy to excuse his daughter-in-law if either party requested that he do so.  The circuit court denied Sellhausen's postconviction motion.

On appeal, Sellhausen claimed she was entitled to a new trial because the presiding judge should have removed his daughter-in-law sua sponte instead of forcing her trial attorney to either move to strike for cause or exercise a peremptory strike.

Relying on State v. Tody, 2009 WI 31, 316 Wis. 2d 689, 764 N.W.2d 737, the Court of Appeals ruled that the circuit court erred when it failed to strike the judge's daughter-in-law from the jury panel.

The Court of Appeals reasoned that forcing an attorney to question the judge's daughter-in-law or to use a peremptory challenge raised the risk of creating personal animosity between the party and the judge, potentially affecting the attorney's performance. The Court of Appeals concluded that risk imperiled the overall fairness of the proceedings.

In its petition, the state argues this court should grant review to determine whether a trial judge is required to remove a family member sua sponte from the venire panel and, if so, which family members are subject to the rule.  Also, it contends the court should review whether reversal is required when a trial court fails to sua sponte remove a family member from the venire panel when the family member did not serve on the jury due to the peremptory strike.

It notes that it does not dispute it is the better practice to strike a juror sua sponte.  However, it claims that under State v. Lindell, 2001 WI 108, ¶113, 245 Wis. 2d 689, 629 N.W.2d 223, Sellhausen is not entitled to a new trial because assuming that the circuit court erred, that error was corrected by the peremptory strike. From Sheboygan County.

2009AP608 Adams v. State
This case involves two petitions for review. A decision by the Supreme Court is expected to establish a precedent as to how the state's livestock facility permitting process interacts with local zoning authority.

Some background: The state's Livestock Facility Siting Law (Siting Law), 2003 Wis. Act 235 [codified in Wis. Stat. § 93.90 and Department of Agriculture, Trade and Consumer Protection Rule (ATCP) 51,] was enacted in 2004. The law created the Livestock Facility Siting Review Board (Review Board) and establishes standards and procedures for local governments if they choose to require conditional-use permits for the siting of new and expanded livestock operations.

One of the petitions for review in this case was filed by the Town of Magnolia (the Town); the other by a group of neighbors (collectively Adams) who live close to the "Confined Animal Feedlot Operation" (CAFO) operated by Larson Acres, Inc. (Larson). Larson's "home" farm had approximately 1,300 cows when this dispute arose. The facility at issue in this case is a satellite heifer facility that houses up to 1,500 "animal units."

On May 2, 2006, Larson applied to the Town for a Conditional Use Permit (CUP) for this satellite heifer facility, which was already in existence. The Town held a contested-case type hearing on the permit application in March 2007. The Town took testimony from a number of experts it had retained to evaluate water quality issues relating to the Larson operation, including concern about elevated nitrate levels in nearby Norwegian Creek and some local wells.

The Town granted the CUP, but attached a number of conditions.  The conditions required Larson to follow certain land use and crop rotation strategies in order to reduce and then minimize the buildup of nitrates. The conditions also required Larson to provide updates to the Town regarding its management practices and to allow the Town to conduct monthly water quality tests on drain tile lines.

Larson objected to a number of the conditions and appealed the imposition of those conditions to the Review Board. Larson contended that the Town's conditions exceeded the standards adopted by the Department of Agriculture, Trade and Consumer Protection (DATCP) in Wis. Admin. Code § ATCP 51 under the Siting Law.  The Review Board agreed.  The Review Board upheld the Town's granting of a CUP to Larson, but eliminated some of the conditions that the Town had attached to the permit.

The Town and Adams sought review of the Review Board's decision in the circuit court.  The circuit court concluded that the siting law did not preempt the Town's application of its zoning ordinance on water quality standards.  It also ruled that the Board could not direct the Town to reissue the CUP without certain conditions.  The circuit court construed the statute as requiring the Review Board either to affirm or reverse the Town's permit in its entirety and remanded to the Review Board with directions to affirm or reverse the permit "in whole."

Larson appealed, and the Court of Appeals reversed.  The Court of Appeals addressed, among other things, whether the Siting Law preempts the Town's preexisting authority to impose conditions regarding water quality that differed from those adopted by DATCP under the Siting Law. 

The Court of Appeals determined, among other things, that the siting law had expressly preempted the Town's authority under those other sources of authority with respect to livestock operations.  It also ruled that the conditions imposed by the Town could not be upheld under a provision that allows political subdivisions to adopt more stringent standards for siting permits because the Town did not adopt specific findings of fact showing that the more stringent requirements were necessary to protect public health and safety.  Finally, the Court of Appeals concluded that the Review Board did have authority to remove the challenged conditions rather than to reverse only the entire CUP.

The Town argues that the legislative history of the siting law demonstrates that the law was not intended to eliminate the decision-making authority of local governments over the siting of livestock facilities or to diminish the authority of local governments to protect water quality.

The Town and Adams assert that the Court of Appeals' preemption decision contradicts the state's statutory scheme for protecting water quality.  They both emphasize that the protection of water quality is an important public policy that has generally involved all levels of government working together.  They argue that the Court of Appeals' decision significantly impairs this partnership that has been developed in state statutes and administrative rules as well as local zoning ordinances over the last 35 years. 

Larson contends the Court of Appeals reached its decision by simply applying well-established rules of statutory construction to the plain language of the siting law. It notes that the Court of Appeals applied preexisting preemption rules to the question of whether the siting law preempted local governments from adopting more stringent water quality standards. From Rock County.

Review denied: The Supreme Court denied review in the following cases. As the state's law-developing court, the Supreme Court exercises its discretion to select for review only those cases that fit certain statutory criteria (see Wis. Stat. § 809.62). Except where indicated, these cases came to the Court via petition for review by the party who lost in the lower court:

2009AP2773-CR State v. Perez

2009AP1615 Kauer v. DOT

2009AP720 / 2009AP721 Wendy M. v. Helen K.
2010AP1469 State v. Obriecht

2010AP540 thru 2010AP542 State v. Derksen

2009AP1628 LaBeree v. Wausau Ins.- Justice Patience Drake Roggensack dissents.

Eau Claire
2009AP3038-CR State v. Northern

2009AP108-CR State v. Schmidt

2009AP1778-CR State v. Galvin
2009AP2629-CR State v. Hale
2009AP2910-CR State v. Thomas
2010AP1107-CR State v. Cantwell

La Crosse
2009AP1963-CR State v. Semlar
2010AP149-CR State v. Olson

2010AP538 State v. Bailey

2009AP354-CRNM State v. Czapiewski
2009AP1706 Smith v. Weigelt
2009AP2085-CR State v. Ward
2009AP2117-CR State v. Addison
2009AP2171-CR State v. Anthony
2009AP2203 Garner v. State - Justice Ann Walsh Bradley did not participate.
2009AP2250-CR State v. Applings
2009AP2596-CR State v. Allen
2009AP2658-CR State v. Munford
2009AP2669 State v. McCradic
2009AP2695-CR State v. Lipsey
2009AP2745 State v. Lewis
2009AP2759-CR State v. Harris
2009AP2835-CR State v. Jones
2009AP3022-CR State v. Holloway
2009AP3081-CR State v. Morgan
2009AP3095-CR State v. Sheriff
2010AP165-CR State v. Marks
2010AP359-CRNM State v. Funches
2010AP742-CR State v. Anderson
2010AP1148 Hays Group v. Campbell - Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley dissent.
2010AP1421 / 2010AP1422 State v. Daniels
2010AP1900 State v. Thomas
2010AP2284-W Jackson v. Grams
2010AP3018-W Fowler v. Cir. Ct. for Columbia Co.
2010AP3047-W Davis v. Cir. Ct. for Milwaukee Co.
2011AP9-W Brown v. Sand Ridge Secure Treatment Ctr.

2009AP1752 Worden v. Stockwell

2010AP432 / 2010AP558 State v. Sherman
2010AP978 Outagamie Co. v. Torreano

2009AP2297 Bronfeld v. Pember Co.

2009AP554-CR State v. Kaprelian
2009AP3122 Bonstores Realty Two v. City of Racine Bd. of Rvw.

2009AP2445 State v. Sugden

2009AP3042-CR State v. Riley

St. Croix
2009AP1245-CR State v. Whyte - Chief Justice Shirley S. Abrahamson dissents.

2010AP713-CR State v. Ellifritz

2009AP734 State v. Wolfe
2009AP937-CR / 2009AP1869-CR State v. Prouty
2009AP2400 Tiggs v. Murphy
2009AP2415 Sewart v. Silvercryst Limited, Inc.

2009AP2744-CR State v. Tainter
2010XX798 Bernegger v. Wash. Mut. - Justice N. Patrick Crooks and Justice Annette Kingsland Ziegler did not participate.

2009AP1568-CR State v. Barfell
2010AP2071-NM / 2010AP2072-NM Winnebago Co. DH&HS v. Lorinda J.H.

Tom Sheehan
Court Information Officer
(608) 261-6640

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