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Supreme Court accepts eight new cases

Madison, Wisconsin - April 4, 2011

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 available online for the newly accepted cases are hyperlinked.

2008AP1972 Jandre v. Physicians Ins. Co.
In this medical malpractice case, the Supreme Court examines whether Wis. Stat. § 448.30 requires a physician to advise a patient about tests and treatments for possible alternative health problems unrelated to the diagnosed condition.

Some background: On June 13, 2003, Thomas Jandre was at work and driving to a job site when he drank some coffee and it came out his nose.  He was also drooling, his speech was slurred, his face drooped on the left side, he was unsteady and dizzy, and his legs felt weak.  Co-workers took him to the St. Joseph’s Hospital West Bend emergency room (ER). 

Jandre was evaluated at the ER by physician Therese Bullis, who read his chart, including the nurse’s notes, took a medical, social and family history, and performed a physical examination.  Bullis testified that she observed left-side facial weakness and mild slurred speech.  She made a list of what she was evaluating the patient for, which included some kind of stroke, Bell’s palsy, and various other conditions including tremors and multiple sclerosis. 

Bullis’ final diagnosis was that Jandre had a mild form of Bell’s palsy, an inflammation of the seventh cranial nerve, which is responsible for facial movement.  Bell’s palsy is not life-threatening, and most people recover after several weeks or months without further symptoms. There is no test for Bell’s palsy, and it is diagnosed by ruling out everything else. 

Bullis concluded that Jandre was not having a stroke based on the fact that a CT scan did not reveal a hemorrhagic stroke, and her physical exam did not reveal an ischemic stroke.  She later testified she did not order a carotid ultrasound to rule out ischemic stroke, and instead listened to Jandre’s carotid arteries to determine if she heard a whooshing sound indicative of ischemic stroke.

Three days after the emergency room visit, Jandre went to a physician at a Fond du Lac clinic for a follow-up appointment. The physician’s note indicated resolving Bell’s palsy. Eleven days later, on June 24, 2003, Jandre suffered a massive stroke.  A carotid ultrasound performed at St. Luke’s Hospital showed that his right internal carotid artery was 95 percent blocked.  Two expert witness physicians who treated him testified at trial that if they had been called on June 13, 2003, they would have ordered a carotid ultrasound and that it would have shown the blockage, which could have been treated by surgery.

In June of 2004, Jandre and his wife filed suit against Bullis, Physicians Insurance Company of Wisconsin (PIC), and the Wisconsin Injured Patients and Families Compensation Fund (the Fund).  Jandre alleged that Bullis negligently diagnosed his condition and failed to disclose information necessary for him to make an informed decision with respect to his treatment. 

The Jandres argue Bullis was concerned enough about a stroke to order a CT scan and listen to the carotid artery, and she knew several of the symptoms that Jandre had experienced did not fit the classic presentation of Bell’s palsy.  They argue given the serious consequences of a stroke, Dr. Bullis had a duty to inform Jandre about the potential and alternative method of diagnosis and treatment.

PIC filed a motion for partial summary judgment on the informed consent claim, which was denied, as was a motion for reconsideration. 

The case was tried in February of 2008 on both the negligent diagnosis and informed consent claims.  The jury found Bullis was not negligent in her diagnosis of Bell’s palsy but was negligent with regard to her duty of informed consent.  PIC and the Fund filed motions after verdict seeking reversal of the jury verdict based on insufficient evidence or, in the alternative, a new trial because the trial court erred in submitting the question of informed consent to the jury.  Those motions were denied. 

The jury awarded the Jandres approximately $2 million in damages as well as taxable costs, disbursements, statutory attorney fees and post-verdict interest.  The court allocated the damages by ordering PIC, as the primary insurer, to pay $1 million to Thomas Jandre and the Fund to pay the remaining amounts.  The court also ordered PIC to pay all taxable costs, disbursements, statutory attorney fees and post-verdict interest on the total amount of the judgment.  PIC and the Fund appealed.  The Supreme Court denied a petition to bypass.  The Court of Appeals affirmed.

The Court of Appeals noted that PIC and the Fund challenged the trial court’s construction of § 448.30, which sets forth the duty of informed consent, and PIC alone challenged the trial court’s order that it pay all of the judgment interest and costs.

PIC and Bullis argue, among other things, that the Supreme Court should clarify the application of § 448.30.  They say the court should either construe existing case law to limit the duty of informed consent to diagnoses and treatments consistent with the physician’s final diagnosis or reconsider prior case law in light of the public policies surrounding malpractice to achieve the same result.

2009AP1643-CR   State v. Dinkins
This case examines if a convicted sex offender is exempt from complying with the address reporting requirement of Wisconsin’s sex offender registration law on grounds that the sex offender claims to be homeless.

Some background: William Dinkins Sr. was convicted in 1999 of first-degree sexual assault of a child and was sentenced to 10 years in prison. The offense required him to register as a sex offender upon his release from prison and to provide required information for the sex offender registry, including the address at which he would be residing no later than 10 days before being released from prison. 

The circuit court later found that the defendant had tried to comply with the reporting requirement but had been unable to find housing for himself on his release from prison.

On July 17, 2008, three days before his scheduled release date, a complaint was filed charging the defendant with failing to provide required information to the sex offender registry 10 days prior to his release.  The following day the defendant was transferred from Oshkosh Correctional Institution to the Dodge County Jail, where he remained during the trial court proceedings.  The defendant filed three motions to dismiss, all of which were denied.  Following a bench trial, the defendant was found guilty of the charged offense.  Sentence was withheld, and the defendant was placed on probation for 30 months on condition that he serve 90 days in jail.

Dinkins filed a motion for post-conviction relief, arguing that the offense of failing to report information to the sex offender registry requires proof that the defendant had actual knowledge of the information he was required to provide.  The defendant argued he lacked such knowledge because he did not know where he would be living upon release from prison.  He also argued that failure to construe § 301.45(2)(a) to require proof of knowledge of the required information would violate his right to substantive due process and render the statute impermissibly vague. The circuit court denied the motion.  The defendant appealed, and the Court of Appeals reversed.

The Court of Appeals concluded that the plain language of §§ 301.45(2)(a)5. and (e)4. does not permit prosecution of a soon-to-be-released prisoner for failing to fulfill the address reporting requirement when the prisoner does not have an address at which he can reasonably predict he will be able to reside after his release from prison.

The Court of Appeals noted that it lacks the authority to improve on the statutory scheme, and it said if there is a remedy for the problem, that remedy must come from the legislature. The state says whether a convicted sex offender who claims to be homeless must comply with the address reporting requirement goes to the heart of the legislative intent, which is to facilitate the monitoring of sex offenders by law enforcement and protect the public from future sex offenses.

2009AP2768    Hirschhorn v. Auto-Owners Ins.
This case examines whether a standard pollution exclusion in a homeowner’s insurance policy excludes coverage for a loss caused by a “penetrating and offensive odor” emanating from an accumulation of bat guano, and whether such an exclusion applies to pollutants that result from “biological processes” or is limited to industrial waste.

Some background: The plaintiffs, Joel and Evelyn Hirschhorn, lived out of state but owned a vacation home in Oneida County.  When they listed the home for sale in May of 2007 and inspected it with a broker, they found no sign of bats. In July, the broker noticed bat guano on the house and when he inspected further, he discovered the presence of bats.  The broker tried to remove the bats and clean the home but when the plaintiffs stayed there in August 2007 they noticed a “penetrating and offensive odor.” 

The plaintiffs obtained a remediation estimate from a contractor, but the contractor could not guarantee he would be able to remove the odor.  The plaintiffs filed a property loss notice with Auto-Owners.  Auto-Owners denied the claim without conducting an investigation or inspecting the house.  The denial letter stated that the policy did not cover the accumulation of bat guano because it was “not sudden and accidental” and resulted from faulty, inadequate, or defective maintenance.  In a revised position letter sent in February of 2008, Auto-Owners also cited the pollution exclusion in the policy.  By that time the plaintiffs had demolished the house and began construction of a new one. 

The plaintiffs eventually sued Auto-Owners, asserting claims for breach of contract and bad faith.  Auto-Owners moved for summary judgment, arguing that the loss was not covered by the policy because it was not “accidental direct physical loss to covered property” and also because three exclusions applied: (1) faulty or inadequate maintenance; (2) vermin; and (3) pollution.  The circuit court denied the motion, concluding there was coverage.

After Auto-Owners moved for reconsideration, the court held that excrement fell into the category of “waste” and was a pollutant under the exclusion. Having concluded there was no coverage under the policy, the court concluded there could be no bad faith claim.  The plaintiffs appealed, and the Court of Appeals reversed and remanded.

The Court of Appeals held that the pollution exclusion did not apply because even though excrement fell within the definition of “waste” in Auto-Owner’s policy, “when a person reading the definition arrives at the term ‘waste,’ poop does not pop into one’s mind.” Hirschhorn v. Auto-Owners Ins. Co., No. 2009AP2768, slip op., ¶ 12. (Ct. App. Oct. 19, 2010) (P-Appx 8.) The Court of Appeals ruled that a reasonable insured would, in reviewing their homeowner’s policy, understand “waste” to be limited to “damaged, defective, or superfluous material produced during or left over from a manufacturing processes or industrial operation.”

The parties agree that there are no Wisconsin cases directly on point.  Auto-Owners argues under the Court of Appeals’ analysis, any pollutant that is not industrial refuse will now be a covered cause of loss and that the court ruling significantly changed the nature and scope of the standard pollution exclusion contained in homeowner’s insurance policies throughout the state.

The plaintiffs argue the Court of Appeals did not restrict the meaning of “waste” by picking one dictionary definition from among several; it simply emphasized that the word “waste” has multiple meanings and as used in the pollution exclusion, bat guano would not qualify as excluded from coverage.

2010AP772-CR   State v. Dowdy
This case examines a circuit court’s authority to reduce the length of probation.

Some background: In 2002, Carl L. Dowdy was convicted of second-degree sexual assault with use or threat of force or violence.  The circuit court sentenced him to seven years of initial confinement and eight years of extended supervision. The court then stayed this sentence and imposed a 10-year period of probation.  One condition of probation was one year of confinement in the Milwaukee House of Corrections. Another condition was sex offender evaluation and treatment.

Seven years later, the defendant petitioned for modification of his period of probation from 10 years to seven years, citing Wis. Stat. § 973.09(3)(a) as authority. Because the defendant had already completed seven years of probation, granting his request would result in his discharge from probation.  The defendant asserted a reduction in the probation term was appropriate because his progress on supervision had been largely successful and he would no longer pose a threat to the community.

At an evidentiary hearing on the petition, the defendant presented evidence that he had not contacted the victim in the case while on probation, had completed anger management counseling, maintained employment, and had no addiction or mental health treatment needs. 
Three state Department of Corrections (DOC) agents who had supervised the defendant testified about concerns about his history while on probation.  The sexual assault victim, through a representative, and the state both objected to the petition. 

The circuit court ordered DOC to conduct a new sex offender risk assessment and adjourned the matter pending a return of that report.  Following that hearing, the state filed an objection to the petition, arguing that the circuit court lacked authority to modify the length of the defendant’s probation.

At a second hearing, the circuit court concluded that it had statutory authority to consider the requested reduction in the probationary period.  After hearing additional arguments from the parties, and considering both the new DOC sex offender risk assessment and the report of a private psychological evaluation submitted by defense counsel, the court found good cause to reduce the probation period from the original 10 years to seven years upon payment of court-ordered fees.

The state appealed and the Court of Appeals reversed and remanded.  The Court of Appeals said it was clear from the terms of Wis. Stat. § 973.09(3)(a) that the legislature did not intend to grant to circuit courts the authority to “modify” probationary dispositions by reducing them in length.

Dowdy contends that Wis. Stat. § 973.09(3)(a) grants courts broad authority to “modify
the terms and conditions” of probation at any time as long as “cause” exists. “Cause,” in this context, has no limitation. State v. Edwards, 2003 WI App 371, ¶ 14, 267 Wis. 2d 491, 671 N.W.2d 371.

The state says while a trial court possesses inherent authority to reduce the length of a probation period on “new factor” grounds, this defendant’s alleged compliance with the conditions of probation and alleged rehabilitation progress are not new factors.  The state says the trial court did not identify substantial reasons to support reducing the defendant’s probation period, and the record reflects substantial reasons not to do so, including the fact that the defendant did not successfully complete sex offender treatment and all three of the defendant’s probation agents testified that the defendant consistently violated terms and conditions of his probation. 

2008AP1830   MBS-Certified Pub. Accountants v. US Connect
This case arises from a class action lawsuit over the practice of “cramming” in which a telephone company deceptively inserts relatively small, unauthorized charges into a telephone bill. As part of its review, the Supreme Court examines the voluntary payment doctrine and statutory damage claims under §§ 100.207, 100.18, and §§ 946.80-946.88 (Wisconsin Organized Crime Control Act or WOCCA). 

Some background: The petitioners, MBS-Certified Public Accountants, LLC (MBS) and Thomas H. Schmitt, CPA, d/b/a Metropolitan Business Services claim that several telecommunications companies, including  Wisconsin Bell Inc., d/b/a AT & T Wisconsin, ILD Telecommunications, Inc., d/b/a ILD Teleservices, Americatel Corporation and Local Biz USA, Inc., and US Connect, LLC, engaged in cramming.

The petitioners filed a class action complaint on behalf of all Wisconsin consumers who have been wrongfully charged on their telephone bills through cramming. The complaint alleges that this practice has proven to be a highly effective means of stealing money from the customers and that the unauthorized charges were inserted into local telephone bills in a vague and confusing manner. The defendants moved to dismiss the claims on multiple grounds, including the voluntary payment doctrine.  The circuit court determined the voluntary payment doctrine barred recovery and granted the motion to dismiss.  MBS appealed. 

The Court of Appeals affirmed. The Court of Appeals said the voluntary payment doctrine places upon a party who wishes to challenge the validity or legality of a bill for payment the obligation to make the challenge either before voluntarily making the payment or at the time of voluntarily making the payment.  See Putnam v. Time Warner Cable of Southeastern Wis., 2002 WI 108, 255 Wis. 2d 447, 649 N.W.2d 626.  The Court of Appeals said that the voluntary payment doctrine presupposes wrongful conduct by the payee.

MBS argued the nature of cramming schemes is to insert charges into the customer’s bills with the expectation they will not notice the charges or be misled into believing the charges were imposed for requested services.  MBS argued that to bar the customers from the remedy precisely because the cramming scheme worked as it was intended would frustrate the legislative purpose. 

MBS asks the court to determine whether the voluntary payment doctrine bars damages under Wisconsin Statutes, or the legislature specifically created private rights of action for victims of prohibitive practices.  It also inquiries whether individuals must pay illegal fees under protest to preserve their right to bring a statutory claim, even though the statutes in question do not include a protest requirement.  Finally, MBS asks whether an exception to the voluntary payment doctrine prevents violators of §§ 100.18, 100.207, and WOCCA from the benefits of that doctrine to escape liability for statutory damages.

Wisconsin Bell contends the Court of Appeals properly applied Putnam.  It says that Putnam, following more than a century of well-established law, foreclosed the very argument made here when Putnam applied the voluntary payment doctrine to a damages claim against Time Warner under Wisconsin’s Deceptive Trade Practices Act, § 100.18.
The respondents contend that because the petitioners repeatedly and without protest paid their bills with knowledge of the charges plainly set forth, the voluntary payment doctrine is available to Wisconsin Bell as a defense under §§ 100.207, 100.18 and 946.83.  The respondents say that because the telephone bills are clear and unambiguous, the petitioners fail to state a claim against Wisconsin Bell.  Further, Wisconsin Bell argues, it did not generate the allegedly unauthorized charges and therefore the complaint fails to state a claim.

A decision by the Supreme Court is expected to clarify the exceptions to the voluntary payment doctrine as set forth in Putnam and Butcher v. Ameritech Corp., 2007 WI App 5, 298 Wis. 2d 468, 727 N.W.2d 546. 

2009AP1557    260 N. 12th St. v. DOT
This case involves environmentally contaminated property taken pursuant to eminent domain for a highway construction project in downtown Milwaukee. The Supreme Court examines the admissibility of evidence where market value determinations may be complicated due to the cost of cleaning up the property for the intended use and the possibility of subsequent cost recovery actions against the condemnee.

Some background: The Wisconsin Department of Transportation (DOT) acquired land owned by the petitioners, 260 North 12th Street, LLC and Basil E. Ryan, Jr. (collectively, “Ryan”).
Using the statutory condemnation process, Ryan was awarded $1,348,000 (the difference between the jury verdict and the award of damages already paid for the property) on March 30, 2005.  Ryan challenged the amount of compensation pursuant to Wis. Stat. § 32.05(11).

The circuit court gave the parties a deadline to submit names of all expert and lay witnesses.  Initially, Ryan had retained an expert, Lawrence R. Nicholson, who had prepared an appraisal to value Ryan’s property as of Feb. 24, 2005.  Ryan’s attorney at that time, Alan Marcuvitz, had advised Ryan that while the appraisal report prepared by the DOT had undervalued the property, it had not raised the issue of environmental contamination.

However, after receiving copies of depositions of two DOT representatives, it appeared to Ryan that contamination could be raised as an issue.  As the case proceeded, Ryan switched attorneys and added witnesses without approval for a change in the deadline for submitting the names of witnesses.

The DOT moved to strike two of Ryan’s witnesses, arguing they had not been disclosed as required by the scheduling order. Further, the DOT noted an August 2007 modification if the order stated that the disclosure deadlines had been met and would not be reset.  The circuit court granted the DOT’s motion, citing Wis. Stat. §§ 802.10 and 804.12.

The circuit court found there would be a substantial amount of prejudice to the DOT, a minor amount of prejudice to Ryan, and Ryan failed to show good cause for relief from the scheduling order. On Ryan’s subsequent motion for partial summary judgment and reconsideration, the trial court held that evidence of environmental contamination and remediation costs was admissible to determine just compensation.  It rejected Ryan’s argument that a DOT witness’s estimates regarding remediation were speculative and lacked foundation.

At trial, the court declined to exclude any portion of the DOT expert’s report. It ruled that Ryan’s objections went to the weight rather than admissibility of the DOT expert’s testimony.  The jury determined fair market value of Ryan’s property as of March 30, 2005, at $2,001,725.  Ryan appealed.

The Court of Appeals affirmed, concluding that Wis. Stat. § 32.09(5)(a) and case law as reflected in Wis. JI-Civil 8100 supported the circuit court’s decision to admit the evidence of contamination and remediation.

Ryan argues that where the state reduces the just compensation award by contamination remediation estimates, while leaving open the potential for penalty assessments against the owner for remediation costs under other regulations, a risk of double taking exists, implicating due process violations.

The Court of Appeals said because the trial court applied the proper standard of law, when deciding to admit the evidence, it did not erroneously exercise its discretion.  Next, the Court of Appeals concluded the trial court’s decision to exclude two additional expert witnesses fell within an appropriate exercise of discretion.

Ryan raises six issues, which may be grouped into three categories.  First, whether evidence of environmental contamination and remediation costs is admissible when determining just compensation in an eminent domain case.  Second, whether the circuit court erroneously exercised its discretion by excluding the testimony of two of Ryan’s expert witnesses due to Ryan’s violation of the scheduling order.  Third, whether the expert testimony regarding the impaired value of the property was inadmissible because it was speculative and lacked foundation.

The DOT says the Court of Appeals properly concluded that environmental contamination and the need to remediate the contamination are relevant considerations to fair market value. The DOT states that Ryan’s arguments relating to the exclusion of two of his experts are not novel, and the Court of Appeals’ decision is not in conflict with any Wisconsin statutory law or controlling case law.

2009AP2795    Gister v. Amer. Fam. Mut. Ins. Co.
This case examines whether a charitable hospital that must provide emergency medical services to the uninsured may enforce a hospital lien pursuant to Wis. Stat. § 779.80 on a Medicaid recipient’s personal injury settlement as an alternative to billing Medicaid.

Some background: Jaymie Gister, Ethan Gister, and Jared Ellis (collectively, “the Gisters”), were injured in an automobile accident caused by an insured of American Family Insurance.

The Gisters, who were covered by “BadgerCare” (medical assistance), were treated at Saint Joseph’s Hospital in Sheboygan. They alleged in a complaint that Saint Joseph’s did not submit the medical bills to medical assistance, but instead filed a hospital lien against each of them for recovery of the medical bills. They also claimed that the insurance policy limits are insufficient to cover their damages, and that American Family is now prepared to settle their injury claims, but any such payments to the Gisters would be reduced or eliminated to pay the hospital, if the liens are valid.

The circuit court ruled in favor of Saint Joseph’s and held the liens valid. The circuit court concluded that under federal and state regulations, Saint Joseph’s has no obligation to submit the plaintiff’s hospital bills to the medical assistance program for payment.  Further, the circuit court concluded that Saint Joseph’s Hospital liens do not impose direct charges against the Gisters in violation of Wis. Stat. § 49.49 (3m). The circuit court concluded Wisconsin law specifically grants Saint Joseph’s Hospital the authority to impose a lien against settlement proceeds received by plaintiffs under circumstances presented here. 

The Court of Appeals disagreed, relying on Dorr v. Sacred Heart Hospital, 228 Wis. 2d 425, 597 N.W.2d 462 (Ct. App. 1999). Dorr  held that when the contract between an HMO and hospital contains a hold harmless provision, no hospital lien can be filed against an HMO’s patient’s property because the HMO patient is not indebted to the hospital for the medical services provided. 

Saint Joseph’s says the Court of Appeals’ decision contravenes Congress’s stated intent that Medicaid shall be the payer of last resort, and that participating states shall ensure that federal and state funds are not misspent for covered services to eligible Medicaid recipients when third parties are legally liable to pay for those services.  See Wesley Health Care Center, Inc. v. DeBuono, 244 F.3d 280, 281 (2nd Cir. 2001).

Saint Joseph’s contends the circuit court correctly concluded that Dorr does not apply because well-established law permits hospitals to either bill Medicaid or file a lien on any proceeds that may be received by plaintiffs against third-party tortfeasors.  The hospital argues that debt does exist for which Medicaid benefits are not authorized because the otherwise eligible recipients have a means to pay the bills through the settlement proceeds. 

The plaintiffs argue Saint Joseph’s is really seeking a ruling to make the right of a hospital to be reimbursed at full value for the services it provides paramount to the rights of an injured party and the right of the State of Wisconsin to be reimbursed out of a third-party settlement.  It argues there still remains a subrogation interest to the medical assistance program in the amount of $7,440.91 that remains unpaid and would go unreimbursed if the court accepts Saint Joseph’s interpretation of the lien statute.

2010AP1142    State v. Nordberg
This bypass involves the interpretation of the statutory chapter that permits the civil commitment of sexually violent persons, Wis. Stat. ch. 980, following its revision by 2005 Wis. Act 434.  Specifically, Glen D. Nordberg seeks an interpretation of the provision governing petitions for supervised release from such commitments.  He has asked the Supreme Court to decide if  State v. Rachel, 2010 WI App 60, 324 Wis. 2d 441, 782 N.W.2d 443, erroneously interpreted Wis. Stat. § 980.08(4) to place the burden of persuasion on the committed patient to prove by clear and convincing evidence the criteria for granting supervised release.

Some background:  Nordberg was committed under ch. 980 in 2001.  In July 2008, he filed a petition for supervised release.  Prior to the trial, Nordberg filed a motion that asked the circuit court to rule that the burden of proof remained on the state under the new version of the statute.  The circuit court denied Nordberg’s motion and concluded that the burden under the new statute was on Nordberg to prove by clear and convincing evidence that he had satisfied five statutory criteria in Wis. Stat. § 980.08(4)(cg).

At the conclusion of the hearing on Nordberg’s petition, the circuit court found “that Mr. Nordberg, by clear and convincing evidence, has made significant progress in treatment.”  The court further found, however, that it was “not satisfied by clear and convincing evidence that it is not much more likely than not that Mr. Nordberg will engage in acts of sexual violence while on supervision.”  Accordingly, the circuit court denied Nordberg's petition for supervised release.

Nordberg filed a motion for reconsideration, alleging that the circuit court had erred by assigning the burden of proof to the committed person and by making that burden rise to the intermediate level of clear and convincing evidence.  Because the Court of Appeals had decided in Rachel that a committed person should bear the burden of proof under the new version of the statute, and that the burden should be clear and convincing evidence, the circuit court denied the reconsideration motion.

Under the previous version of the statute, the burden of proof had been on the state to prove that supervised release was not appropriate.  If the circuit court determined that the state had not met its burden, it was obligated to grant the supervised release petition.  State v. Brown, 2005 WI 29, ¶12, 279 Wis. 2d 102, 693 N.W.2d 715.  To the contrary, if it determined that the state had met its burden, it was obligated to deny the petition.

Nordberg’s position is that the new version of the statute should be interpreted to allow a circuit court to make a supervised release decision based on its neutral consideration of all of the evidence and the listed statutory factors. He contends that the language of the statute is indeed silent on who bears the burden of proof.  Nordberg asserts that if the legislature wanted to place the burden on the individual, it would have written the statute to say so.

Nordberg’s petition also argues that if the court nonetheless determines that the committed individual should bear the burden of persuasion, requiring the individual to meet a clear and convincing evidence standard is too harsh.

The state contends that the issue of the burden of persuasion on supervised release motions under the new version of the statute should require the individual to satisfy all five statutory criteria by clear and convincing evidence, as the Court of Appeals ruled in Rachel.

Oral argument in this case will be heard together with argument in State v. West, No. 2009AP1579, which raises a similar issue.

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:

2009AP1176  Realty Inv. v. Ash Park
2010AP373-CR State v. Morgan
2010XX212-CR State v. Zibolsky
2009AP2134  Conserve Community v. Cons. Sch.

2009AP2877  Blecker v. Schwarz

2010AP666-CR State v. Kratz

2009AP648  Sierra Club v. DNR
Chief Justice Shirley S. Abrahamson dissents.
Justice David T. Prosser, Jr. did not participate.
2009AP2069-CR State v. Tankson
2009AP2606  Dane Co. DHS v. Samuel W.
2010AP573  Dane Co. DHS v. Susan P.S.
2010AP2791-NM Dane Co. DHS v. Samuel W.
2011AP62-W  Adell v. COA

2009AP2136  State v. Lock
Justice Michael J. Gableman did not participate.

2009AP2485  Jorns v. Fischer
2010AP480-CR State v. Reese

2009AP1743  State v. Harkreader

Fond du Lac
2009AP3167-CR State v. Moore

2010AP1617  Neitzel v. Forest Co.

2009AP3046  Cogan v. Cogan

2009AP1759  State v. Segner

2009AP1591  Theis v. Short

2009AP2812-CR State v. White
2010AP407/09-CR State v. Trejo

2009AP2842-CR State v. Schmeltzer
2010AP2522/23-W Morris v. Cir. Ct. for Marathon Co.

2008AP2036-CRNM State v. Orozco-Martinez
2009AP1134-CR State v. Robinson
2009AP1516  State v. Anderson
2009AP1587/88-CR State v. Cole
2009AP1629  3303-05 Marina Rd. v. West Bend Mut.
2009AP2088-CR State v. Beene
2009AP2196/99-CR State v. Daniels
2009AP2833-CR State v. Harris
2009AP2886  State v. Jennings
2009AP3040-CR State v. Hampton
2009AP3071  Davis v. City of Milw.
2010AP52/53/136/137  State v. Lorraine J./Johnny J.
2010AP176  Conley v. Cir. Ct. for Milwaukee Co.
2010AP200  Am. Fam. Mut. Ins. v. Nordgulen
2010AP676-W Notz v. Cir. Ct. Milw. Co.
Justice Annette Kingsland Ziegler did not participate.
2010AP1133  State v. Jones
2010AP1263-CR State v. Johnson
2011AP55-W  Davis v. Grams
2011AP56-W  Orozco-Martinez v. Pugh
2011AP164-W Smith v. Dittman 2011AP215-W Davis v. Pugh

2010AP233-CR State v. Johnson

2009AP1471-CR State v. Franzke
2010AP781  State v. Williams

2009AP2557-CR State v. Fisher
2010AP1970-FT Racine Co. v. Doreen R.D.

2009AP3139-CR State v. Stewart

2009AP2634-CR State v. O’Donnell
Justice David T. Prosser, Jr. did not participate.

2009AP3049  City of Sheboygan v. Cesar

2009AP2134 Conserve Community v. Cons. Sch.

2010AP911-CR State v. Cruz

2009AP1297  Waterstone Bank v. Paneka
2009AP2061  Oaks v. Settlers Life
2009AP2072  Berg v. Prouty
2010AP16  Am. Family Mut. Ins. v. Schmitz
2010AP824  Wetzler v. Div. of Hearings and Appeals

2009AP662-CR State v. Carter
Chief Justice Shirley S. Abrahamson dissents.

Tom Sheehan
Court Information Officer
(608) 261-6640

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