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Wisconsin Supreme Court accepts four new cases

Madison, Wisconsin - March 2, 2012

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, issues, and counties of origin are listed below. Court of Appeals opinions available online for the newly accepted cases are hyperlinked.

2007AP221/1440 Bostco v. Milwaukee Metro
This case involves allegations of negligent maintenance and operation of the Deep Tunnel, a massive underground sewage and storm water tunnel operated by the Milwaukee Metropolitan Sewerage District. At the request of both parties, the Supreme Court reviews issues related to, among other things, claims for damages and relief under Wis. Stat. § 893.80.

Some background: The Court of Appeals affirmed in part, and reversed in part, a judgment awarding damages and injunctive relief against the District and to the owners of the Boston Store building in downtown Milwaukee, Bostco LLC and Parisian, Inc., (collectively, Bostco).

Bostco claimed that the store's wooden foundation pilings were damaged as a result of groundwater seeping away from underneath its property and into the Deep Tunnel, a portion of which is located 160 feet east of Bostco's property. Bostco alleged the water table dropped, the soil settled, and the timber piles were exposed to air, causing them to shift and rot, resulting in millions of dollars in damages. A notice of claim was served on the District.

The District asserted that since the 1950s, the wood piles were decaying and 72 of 169 columns were repaired before the tunnel was constructed and 11 were repaired twice. It argued its state Department of Natural Resources permit requires the tunnel have a positive inward gradient to prevent wastewater ex-filtration.

The circuit court entered summary judgment dismissing Bostco's inverse condemnation claim and rejected the District's § 893.80(4) immunity defense. The circuit court concluded that § 893.80(4) immunizes municipalities from suits relating to design, but left them open to suit for negligent maintenance or operation of public works where a breach of a ministerial duty is alleged. See Milwaukee Metro Sewer District v. City of Milwaukee, 2005 WI 8, ¶60, 227 Wis. 2d 635, 691 N.W.2d 658 (MMSD).

Bostco proceeded to trial on July 11, 2006, on negligence and nuisance claims. It prevailed only on negligence. On July 27, 2006, the jury returned a verdict awarding Bostco $6.3 million in past and future damages (i.e., $9 million verdict, minus the 30-percent contributory negligence finding as to Bostco). Bostco's nuisance claim was defeated because the jury found Bostco failed to prove "significant harm," despite its finding that Bostco suffered $2.1 million in past damages attributable to the district.

Both parties filed and/or re-filed a series of post-verdict motions, which were considered over time by two different Milwaukee County Circuit Court judges due to judicial rotation.

On Sept. 11, 2006, Judge Jeffrey A. Kremers ruled, among other things, that the District's post-verdict motion should be granted to reduce the damages to $100,000 (i.e., $50,000 for Bostco and $50,000 for Parisian) pursuant to § 893.80(3), which caps damages on municipal liability for tort claims.

After post-verdict motions, Bostco argued the jury found the District had negligently caused it harm, and the evidence demonstrated that if portions of the Deep Tunnel one-half mile north and one-half mile south of the Boston Store were not lined with concrete, the timber piles would continue to be harmed. Bostco claimed that after the trial court imposed the cap on damages, it had no adequate remedy at law.

Ultimately circuit court Judge Jean W. Di Motto ordered that the District was required to install a concrete liner in that portion of the Deep Tunnel one-half mile north and one-half mile south of the downtown Boston Store, at an estimated cost of $10 million. She appointed a special master to oversee implementation of the injunctive relief. The order, later stayed, directed the special master to oversee issues involved in lining the tunnel. The case was appealed.

The Court of Appeals rejected the District's argument that it was immune from liability for not installing a concrete liner in the portion of the tunnel located near the Boston Store, once the District had notice of the dewatering of the aquifer. However, it overturned the injunction as contrary to § 893.80. Also, while it held as a matter of law that Bostco prevailed on its nuisance claim, it concluded the circuit court properly applied the § 893.80(3) damage cap. It further rejected the District's claim that Bostco's notice of claim failed to substantially comply with § 893.80(1). From Milwaukee County.

2008AP1523 Rock-Koshkonong Lake Dist. v. DNR
This case, which the Supreme Court previously denied certification, involves a Wisconsin Department of Natural Resources (DNR) order rejecting a petition to raise the water levels of Lake Koshkonong. The Supreme Court examines the scope and authority of the DNR to protect property and public rights in navigable waters under Wis. Stat. § 31.02(1)and Wis. Admin. Code § NR 103.

Some background: Lake Koshkonong, a very shallow lake, has approximately 27 miles of shoreline and 3080 to 4000 acres of wetlands in and around the lake. About 10 miles of shoreline is developed predominantly for residential use with some commercial use. Approximately 12.4 miles is undeveloped wetland shoreline.

In the mid-1800s, the Wisconsin Territorial Legislature and afterward the state Legislature, authorized construction of a dam at the present site of the Indianford Dam, located on the Rock River, which affects the water levels on the Rock River, Lake Koshkonong, and their tributaries. The DNR regulates the operation of the dam pursuant to Wis. Stat. ch. 31 through orders to owners of dams.

On April 21, 2003, the Rock-Koshkonong Lake District (District), a public inland lake protection and rehabilitation district established pursuant to Wis. Stat. ch. 33, filed a petition with the DNR requesting amendment of a 1991 water level order to allow increased water levels throughout the year and to eliminate the ordered "winter drawdown." A majority of residential and business riparian owners on Lake Koshkonong had supported the District's petition.

On April 15, 2005, the DNR issued a decision relating to the operation of the dam affecting water levels upstream on the Rock River and on Lake Koshkonong. The District petitioned the DNR for a contested case hearing, along with the Rock River Koshkonong Association, Inc., and the Lake Koshkonong Recreation Association, Inc.

The Division of Hearings and Appeals held the contested case hearing, and after post-hearing briefing, the administrative law judge (ALJ) issued a decision on Dec. 1, 2006, denying the petition. The ALJ sustained the DNR's order maintaining the summer water levels in the 1991 DNR order and raising the winter drawdown level by six inches. The decision was subsequently affirmed by the Rock County Circuit Court and Court of Appeals.

The ALJ found that Lake Koshkonong is an impaired water body under § 303(d) of the Clean Water Act, due in part to phosphorus and sediment pollutants, sedimentation, and loss of habitat. An increase in water level would likely affect wetlands and cause increased sedimentation, contrary to the Clean Water Act's goal of removing impairments in bodies of water listed as impaired. The ALJ took into account the riparian owners' diminished ease of access to the water, which resulted in the diminished utility of the riparian rights and enjoyment of their property, thus reducing the value of that property to them. Citing Wisconsin's Environmental Decade, Inc. v. DNR, 115 Wis. 2d 381, 340 N.W.2d 722 (1983), the ALJ concluded, however, that indirect economic impacts do not bear on the statutory standard set forth in sec 31.02(1).

The District asks the Supreme Court to review:

  • if the DNR misconstrued the term "protect property" in setting water levels pursuant to Wis. Stat. § 31.02(1), by ignoring economic effects on property interests, such as residential values, business income, and public revenue.
  • if the DNR exceeded the scope of its authority to protect "public rights in navigable waters" under § 31.02(1), by considering the effects of the water level order on private wetlands located above the ordinary high water mark?
  • if the DNR exceeded the scope of its authority by applying Wis. Admin. Code § NR 103 to a water level proceeding under ch. 31?
  • what level of deference, if any, should be accorded the DNR's interpretation and application of § 31.02(1)?

The state argues that the court of appeals applied plain statutory language and well-established case law. It says the legislature does not intend the DNR to evaluate economic impact when it did not explicitly or even implicitly provide in § 31.02(1) that the DNR was required to do so. It points out that no case has interpreted the plain language to include that requirement confirms that the District seeks a change that only the legislature can make. From Rock County.

2010AP1952 State v. Avery
This criminal case examines whether the Court of Appeals erred in granting a new trial, either on grounds of newly discovered evidence or on grounds that the real controversy was not fully tried due to the absence of proffered new evidence from digitally enhanced videotape.

Some background: In July of 1994, the Brian K. Avery was convicted by jury on two counts of armed robbery as party to a crime, based on robberies that occurred one day apart at two Milwaukee grocery stores. Both stores had interior video surveillance cameras. He was sentenced to 10 years in prison for one robbery and 20 years in prison for the other, to be served consecutively. A postconviction motion was denied, and the Court of Appeals affirmed the judgment of conviction and postconviction orders.

In 2007 the defendant moved for postconviction relief under Wis. Stat. § 974.06, seeking a new trial based both on newly discovered evidence and in the interest of justice. The newly discovered evidence was a new method of digitally enhancing the videotape from a surveillance camera that was not available at the time of trial.

The defendant claimed the new video enhancement and photogrammetric analysis showed that the man who was identified as the defendant in the videotape was actually several inches shorter than the defendant. The defendant's booking photo established that he was six feet, three inches tall, had a mustache, wore his hair short and flat on top and faded to extremely short hair on the sides and back. The post-conviction motion alleged that it was reasonably probable the jury would have a reasonable doubt as to whether the defendant was involved in the robberies. The circuit court denied the motion without a hearing. The defendant appealed, and the Court of Appeals summarily reversed and remanded with directions to conduct an evidentiary hearing on the newly discovered evidence claims.

At the close of the evidentiary hearing, the circuit court concluded that the evidence was discovered after trial; the moving party was not negligent in seeking the evidence; the evidence was material to an issue in the case; and the evidence was not merely cumulative to evidence that was introduced at trial. However, the court declined to find that it was reasonably probable a different result would be reached on a new trial. See State v. Edmunds, 2008 WI App 33, ¶13, 308 Wis. 2d 374, 746 N.W.2d 590.

The circuit court concluded that at a new trial the new evidence was "simply not going to make a difference" because it was "not reliable enough." The circuit court also found that the newly discovered evidence did not justify a new trial in the interest of justice because it did not "totally destroy the prosecution's case" although "certainly, the photogrammetry evidence could chip away at the prosecution's case but it wouldn't destroy it." The defendant appealed, and the Court of Appeals reversed and remanded. The Court of Appeals said it is solely for the jury to determine whether some competing credible evidence is entitled to greater weight than other credible evidence.

The trial court concluded that because the photogrammetry evidence would chip away at the prosecution's case but not totally destroy it, a new trial was not warranted. The Court of Appeals said no Wisconsin case interpreting § 752.35 requires that the defendant's new evidence totally destroy the prosecution's theory.

The Court of Appeals said in this case the circuit court clearly weighed the expert testimony on its own, thus applying the wrong standard and erroneously exercising its discretion.

The state argues the trial court properly assessed the unreliability of the defendant's proffered photogrammetry evidence in determining the probable outcome at a new trial.

A decision by the Supreme Court could develop and clarify the law on unsettled questions concerning the tests for newly discovered evidence and interest of justice in criminal cases. From Milwaukee County.

2010AP2313 Juneau Co. Star-Times v. Juneau Co.
This open records case examines whether copies of certain legal bills requested of Juneau County and its clerk by the Juneau County Star-Times newspaper are subject to disclosure under the Wisconsin Open Records Law.

Some background: Juneau County was insured by Wisconsin County Mutual Insurance Corporation (WCMIC) under a public entity liability policy. The insurance policy provides that WCMIC shall pay sums that the county becomes legally obligated to pay as damages as a result of a covered occurrence and shall also pay attorney fees and related costs in defending against such a claim. The insurance policy gives WCMIC the right to investigate any occurrence and settle any claim or suit that may result even if the settlement amount is exclusively within the insurance deductible.

As pertinent to this action, WCMIC retained the Crivello Carlson law firm in October of 2008 to represent Juneau County Sheriff Brent Oleson in an administrative matter involving disciplinary proceedings the sheriff had commenced against Deputy Sheriff Jeremy Haske. WCMIC later retained the Crivello Carlson law firm to represent the county in two lawsuits filed by Haske against Juneau County and Sheriff Oleson.

Crivello Carlson sent all legal bills for its work on the Haske matters directly to WCMIC. Crivello Carlson did not send the legal bills to the county. The first time the county received copies of legal bills from Crivello Carlson was through a Feb. 10, 2010 letter from Crivello Attorney Michele Ford to Star-Times reporter Peter Rebhahn in response to a Public Records request.

On Feb. 7, 2010 Rebhahn wrote to the Juneau County clerk requesting "access to bills submitted for payment to Juneau County's insurer, Wisconsin County Mutual Insurance Corp., by Atty. Michele Ford, or submitted by her law firm, Crivello Carlson, for services Ford rendered as counsel to Juneau County Sheriff Brent Oleson in the years 2008, 2009 and 2010." Ford, on behalf of the county, provided redacted versions of the legal bills to Rebhahn on Feb. 10, 2010. The redacted bills showed amounts billed to WCMIC by Crivello Carlson.

On February 16, 2010, the Star-Times asked for access to versions of the bills without redaction. The clerk responded on Feb. 17, indicating that the Feb. 10 letter and enclosures from Attorney Ford were intended to be the response from the county to Rebhahn's request.

The Star-Times filed an action for mandamus and declaratory relief against the county seeking disclosure of the redacted portions of the legal bills. The county filed an answer denying all claims. The parties filed cross-motions for summary judgment. The circuit court granted the county's motion for summary judgment. The circuit court concluded that the legal bills were not "records" under § 19.32(2) because they were not created or kept by the county; the legal bills were not contractors' records under § 19.36(3) because the bills concerned a private matter between WCMIC and Crivello Carlson and any connection between the legal bills and the county's insurance policy with WCMIC was tenuous at best; the county did not waive its right to argue that the legal bills were not records or contractors' records subject to disclosure under the Public Records Law; and assuming, arguendo, that the legal bills were records or contractors' records, the county properly refused to disclose the redacted portions on the basis of attorney-client privilege.

The Star-Times appealed, and the Court of Appeals reversed the circuit court judgment and remanded with directions for the circuit court to order the county to make unredacted copies of the invoices available.

The county asserts that the Court of Appeals' decision has extended the contractors' records provision in the Open Records Law far beyond records produced or collected under a contract with a municipality. The county says the contract to which it is a party is the insurance policy, and it is not a party to the contractual relationship between WCMIC and Crivello Carlson.

The Star-Times says the insurance contract did not specify that the county was in any way prohibited from obtaining attorney billing invoices related to covered claims and there was no written contract between Crivello Carlson and WCMIC. The Star-Times contends that records produced or collected under a contract entered into by an authority subject to the Open Records Law must be made available for inspection and copying to the same extent as if the record were maintained by the authority. From Juneau 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:

2011AP1117 Kikkert v. Saunders

2011AP1753-55-W Gordon v. Haines
2012AP109-W Gordon v. Cir. Ct. Bayfield Co.

2010AP1709-CR State v. Flowers
2011AP356-CR State v. Gonzalez-Navarro - Justice David T. Prosser, Jr. did not participate.
2011AP1394-CR State v. Wells

2010AP1071/1462 Salvi v. Medical Ex. Bd.
2010AP1085-86-CR State v. Harris - Chief Justice Shirley S. Abrahamson dissents.
2011AP340 Mohs v. City of Madison - Justice Michael J. Gableman did not participate.
2011AP2053-54 Dane Co. DHS v. Nikita B.
2011AP2754-W Hagberg v. Cir. Ct. Dane Co.

2010AP2838-CR State v. Zakovec

Eau Claire
2010AP2660 Progressive N. Ins. v. Jacobson
2011AP217-CR State v. Kappus
2011AP1195 Lueck v. Lueck

Fond du Lac
2010AP1864-CR State v. Niesen
2011AP711-CR State v. Miller

2010AP1617 Neitzel v. Forest Co.
2011AP1228-W Lewis v. Hepp

2010AP2794 Semlar v. Kallembach

2011AP2108-W Adams v. Cir. Ct. Juneau Co.

2010AP2702-CR State v. Metz
2011AP4-CR State v. Morris
2011AP158-CR State v. Mendez

La Crosse
2011AP2669-OA Mundt v. Cir. Ct. La Crosse Co.

2011AP976 State v. Burkart

2010AP1600-CR State v. Marquez

2009AP2450/2010AP1588 Margaret B. v. Milw. Co.
2010AP193 State v. Curry
2010AP435-CR State v. Rhodes
2010AP535 Milw. Dist. Council 48 v. Milw. Co.
2010AP1809 Clear Channel v. City of Milw. - Justice Patience Drake Roggensack dissents.
2010AP1901-CR State v. Wilson
2010AP2015-CRNM State v. Felder
2010AP2016 State v. Walker
2010AP2244-CR State v. Shanks
2010AP2480-CR State v. Garrett
2010AP2553-CR State v. Stewart
2010AP2629 State v. Ellis
2010AP2676 State v. Kimbrough
2010AP3110-CR State v. Kasprzak
2011AP207-CR State v. Chaney
2011AP311 State v. Simpson
2011AP351 State v. Hardison
2011AP467-W Morrison v. Pugh
2011AP982 State v. Urben
2011AP1473-W Thomas v. Cir. Ct. Milw. Co.
2011AP1651-W Boyd v. Pollard
2011AP1718-W McGhee v. Meisner
2011AP1899-W Hying v. Cir. Ct. Milw. Co.
2011AP2559-W Carpenter v. Cir. Ct. Milw. Co.
2011AP2728-W Payne v. Cir. Ct. Milw. Co.
2012AP6-W Gates v. Cir. Ct. Milw. Co.
2012AP135-W Smith v. Wagner
2012AP146-W Aaron B. v. Cir. Ct. Milw. Co.

2011AP190-CR State v. Perzel

2010AP1689-CRNM State v. Jason L.E.

2011AP607-CR State v. Dain

2010AP2898-CR State v. O'Keefe

2010AP933-CR State v. Malacara

2010AP2955-CR State v. Chancy

2010AP2117-CR State v. Landis

2009 AP2364-CR State v. Garnica
2011AP124-CR State v. Anderson

2009AP3076 Dyer v. Waste Management - Justice David T. Prosser, Jr. did not participate.
2010AP1595 Great Lakes Dart Mfg. v. Starl Dev.
2011AP2917 Schoolcraft v. DPI

2010AP2475 State v. Lee

Tom Sheehan
Court Information Officer
(608) 261-6640

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