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Wisconsin Supreme Court accepts six new cases

Madison, Wisconsin - October 24, 2012

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. The Court of Appeals' opinion for the newly accepted cases are hyperlinked.

2011AP1113 Prent Corp. v. LIRC and Regina Leach
This case reviews a decision of the Labor and Industry Review Commission (LIRC) and examines whether Prent Corp. (Prent) had a reasonable basis for not paying the full amount of a worker's compensation award to a former employee, and whether the evidence was sufficient to support a bad-faith award against Prent. Also at issue is whether the LIRC exceeded its powers in deciding what constituted bad faith, thereby permitting an additional penalty.

Some background: Regina Leach was employed by Prent, a plastic thermoforming manufacturer located in Janesville, for about 11 years. She suffered an injury related to her job that prevented her from working for a period of time. In March 2005, Leach applied for sick leave under the federal Family Medical Leave Act (FMLA). The leave was granted.

On July 1, 2005, Prent sent Leach a letter saying she was being terminated for exceeding FMLA leave time. Leach's neurologist issued an opinion that her work exposure was a material contributing factor in the onset or progression of her injury. The neurologist released Leach to return to work without any restrictions in Oct. 2005. Prent informed Leach that her job was terminated and no longer available. Leach sought lost wages based on Prent's having unreasonably refused to hire her. The Labor and Industry Review Commission (LIRC) agreed that Prent had unreasonably refused to rehire Leach, and it awarded Leach the maximum penalty allowed by statute, $30,706.52.

Prent did not seek judicial review of LIRC's refusal-to-rehire award and did not pay the award by the date specified. Leach petitioned LIRC for a bad-faith award based on Prent's failure to pay. Prent then sent Leach a check purporting to pay the full amount owed. However, Prent deducted taxes from the amount and also deducted the sums it had paid Leach in temporary disability wage reimbursement ($5,857), in defiance of an administrative law judge's (ALJ) earlier letter advising Prent there was no setoff for this item. Prent subsequently admitted it should not have withheld taxes and it paid Leach that amount. However, Prent continued to refuse to pay Leach the amount it had deducted for temporary disability wage reimbursements.

An ALJ held a hearing on Leach's bad faith claim in Oct. 2009. The ALJ awarded Leach $30,000 in bad faith damages based on Prent's failure to timely pay the amounts that had been ordered. The ALJ also ordered Prent to pay $1,264.39 in interest. Prent appealed; LIRC affirmed. Prent filed an appeal in circuit court, which also affirmed.

Prent appealed again, argued that LIRC incorrectly calculated the underlying $30,706.52 refusal-to-rehire award because the award did not account for disability payments Prent made to Leach.

The Court of Appeals pointed out that LIRC's decision said it assumed "for the sake of argument" that Prent's offset legal theory was correct, but even with this assumption, Leach's actual loss was far greater than $30,706.52. The Court of Appeals also pointed out that Prent raised the offset issue only after LIRC's refusal to rehire order was final and after Prent was delinquent in paying the amount awarded.

Prent contends it had a reasonable basis for offsetting the temporary disability payments, and that should have been found sufficient to preclude a finding of bad faith. It also argues that the bad faith award was not supported by sufficient evidence.

Prent asks the Supreme Court if the reasonable basis standard of Brown v. LIRC, 267 Wis. 2d 31, 671 N.W.2d 279 (2003) can be disregarded when the temporary disability payments are offset under Wis. Stat. § 102.35(3) against actual wage loss that exceeds 12 months. Prent also asks whether under Gehin v. Wisconsin Group Insurance Board, 278 Wis. 2d 111, 692 N.W.2d 572 (2005), a bad faith award can be supported by what Prent refers to as uncorroborated hearsay evidence, rather than substantial evidence of bad faith. From Rock County.

2011AP691-CR State v. Steffes
This case examines several issues arising from a prison phone-bill scam. The central question before the Supreme Court is whether the electricity used to power a telecommunications service may be considered "tangible property" under Wis. Stat. § 943.20, the state's theft statute.

Some background: Matthew R. Steffes, an inmate at the Waupun Correctional Institution, was found guilty of two counts of conspiracy to commit theft of property exceeding $10,000 in value by fraud.

Steffes' fellow inmate, Joshua Howard, had worked with individuals outside of the prison to acquire phone numbers in fictitious names or "stolen" names. Those telephone lines were known as "burn out" lines because they would eventually be turned off when the telephone company learned that no one would pay for them.

The state presented testimony, recordings of telephone calls, and letters between Steffes and Howard that showed Steffes' involvement in using the "burn out" lines. Steffes claimed that there was no evidence that he had been involved in the conspiracy when the lines were being set up, and that he merely used the lines after they had been acquired by others. In the approximately 18 months between June 2002 and December 2003, Steffes made more than 320 calls on the lines that totaled 6,562 minutes of usage without paying for them.

Although telephone company (SBC) representatives were not able to provide an exact amount and value of electricity used, the total unpaid charges for the calls made on just three of the lines exceeded $26,000. The question of value in any theft case is significant because it determines the category of offense and range of punishment for a particular theft. By valuing the stolen property using the value of the standard charges for the calls, the state succeeded in convicting Steffes of two felonies.

The circuit court imposed concurrent sentences of 24 months of initial confinement and 30 months of extended supervision that were consecutive to Steffes' other sentences. The jury acquitted Steffes of the one charged count of identity theft.

The Court of Appeals affirmed the conviction. It reasoned that the telephone service theft scheme in which Steffes participated was covered by the statute because the defendants were actually stealing the electricity used to power the telephone network, and electricity is expressly included within the statutory definition of property. The theft of services only is not included in the language of the statute.

Steffes has asked the Supreme Court whether the elements of "theft by fraud," contrary to Sec. 943.20(1)(d), Stats., require that the defendant made an affirmative false promise to pay that induced SBC to provide the telephone service. Steffes argues that there was no evidence of a false promise to pay so he could not be convicted of theft by fraud. The Court of Appeals said that the statutory language required only a false representation and did not contain any requirement that there be an express promise of payment to the victim.

Another issue raised by Steffes is whether the trial court erred in instructing the jury as to the elements of "theft by fraud" as alleged in the criminal complaint; and, further, whether defense counsel was ineffective for failing to object to the defective jury instruction. Finally, the case presents the issue of how to value the property that was stolen here. From Milwaukee County.

2010AP2809-CR State v. Lonkoski
This case examines what constitutes interrogation and what constitutes custody under Miranda.

Some background: In a decision affirmed by the Court of Appeals, Matthew A. Lonkoski was convicted of recklessly causing great harm to a child and neglecting a child resulting in the child's death. Lonkoski's ten-month-old daughter, Peyton, was found dead by her parents, Lonkoski and Amanda Bodoh. The autopsy determined that Peyton's blood and urine contained a deadly amount of morphine and hydromorphone.

Detectives asked Bodoh to come to the sheriff's department for an interview. Lonkoski drove her to the interview and waited in the lobby while Bodoh was interviewed. After speaking with Bodoh, the officers sent her to another room and brought Lonkoski into the interview room for an interview that was video recorded. Detective Sara Gardner and Lt. Jim Wood interviewed Lonkoski, with Lonkoski sitting in the corner furthest from the door of the interview room.

Wood informed Lonkoski that he was not under arrest. He stated that he had closed the door to the interview room so other people could not hear the interview. For about the first half-hour, the detectives and Mr. Lonkoski talked about events since Peyton's death. Then Wood told Lonkoski that an autopsy showed that Peyton died of a morphine overdose. Loknkoski asked the detectives if he was being accused of giving his daughter morphine. The following exchange then occurred:

Mr. Lonkoski: I want a lawyer. I want a lawyer now. This is bullshit.
Lt. Wood: Okay.
Mr. Lonkoski: I would never do that to my kid, ever. I wasn't even at the apartment at all except at night. Why are you guys accusing me?
Lt. Wood: I didn't accuse you.
Det. Gardner: We were just asking.
Mr. Lonkoski: There is this is is is is is is is is insane.
Lt. Wood: I have to stop talking to you though 'cause you said you wanted a lawyer.
Mr. Lonkoski: Am I under arrest?
Lt. Wood: You are now.
Mr. Lonkoski: Then I'll talk to you without a lawyer... I, I don't want to go to jail...

Shortly after this exchange, Lonkoski was escorted from the room to smoke a cigarette and use the bathroom. When Lonkoski, Gardner, and Wood returned to the room, Wood read Lonkoski his Miranda rights and Lonkoski agreed to answer further questions. Over approximately two additional hours of questioning, Lonkoski made incriminating statements; specifically, that he and a friend had used morphine – the drug that killed Peyton – around the time of Peyton's death. Lonkoski was again interrogated four days later and made more incriminating statements.

Lonkoski moved to suppress his statements to police as violative of his Miranda rights. After the trial court denied Lonkoski's motion to suppress, Lonkoski pled guilty to and was convicted of recklessly causing great harm to a child and neglecting a child resulting in the child's death.

The Court of Appeals affirmed the conviction, concluding that Lonkoski voluntarily, knowingly and intelligently waived his Miranda rights. Lonkoski now asks the Supreme Court to review whether a police officer ceases interrogation as required by Edwards v. Arizona [, 451 U.S. 477 (1981)] where, in response to the interrogated person's invocation of the right to counsel, the officer places the person under arrest. Lonkoski also asks the court to review whether the right to invoke Miranda v. Arizona, 384 U.S. 436 (1966) when custodial interrogation is "imminent or impending" applies where interrogation is ongoing but custody is imminent. From Oneida County.

2011AP583 Brown v. Acuity
This insurance case arises from an automobile collision involving a volunteer firefighter who ran a red light in his personal car while responding to the station for a call. The Supreme Court has been asked to examine whether driving by a volunteer firefighter on the way to the fire station in response to a call is a discretionary activity, entitling the firefighter to government immunity from tort liability.

Some background: Parnel P. Burditt was a volunteer firefighter and a lieutenant for the Okauchee Fire Department (OFD). He also served as Emergency Medical Services Director.

On a dark and rainy evening, Burditt responded to a dispatch from the fire department in his personal vehicle, which was equipped with emergency lights but no siren. Burditt's emergency lights were activated when he entered a traffic intersection against a red light, eventually colliding with a vehicle driven by Frank Brown. The collision injured Marilyn Brown and Delores Schwartz, passengers in Frank Brown's vehicle.

Marilyn Brown and Schwartz (collectively, "Brown") sued Burditt, the OFD, and their insurers, alleging that Burditt's negligence was a substantial factor causing the collision. Burditt moved for summary judgment, arguing that he was immune from personal liability for the accident pursuant to Wis. Stat. § 893.80(4) because he was acting within the scope of his duties for the fire department when the accident occurred. The trial court granted summary judgment in favor of Burditt and the OFD.

Brown appealed, and the Court of Appeals affirmed. The Court of Appeals concluded that Burditt was operating within the scope of his employment for purposes of governmental immunity because volunteer firefighters are actuated by a purpose to serve the fire department from the moment they choose to respond to an emergency call. This is so because when an emergency arises, the OFD's volunteers are expected to respond, if possible, from wherever they are currently located, and volunteers must obey the orders of their commanding officers once they choose to respond to a call.

The Court of Appeals further held that the fact that Burditt violated the traffic code did not mean that he was liable for negligence in his decision to proceed through the intersection. The court held that Burditt's decision to proceed through the intersection against the red light was discretionary, and thus Burditt was immune from liability for negligence based on that decision.

A decision by the Supreme Court could clarify whether government immunity applies to certain public employees, in this case volunteer firefighters, when they violate express statutory prohibitions. From Waukesha County.

2011AP1176/77 McLeod v. Mudlaff
This certification involves two consolidated cases. The Court of Appeals asks the Supreme Court to decide whether, under Wis. Stat. § 767.313(2), a court has the authority to entertain an action to declare a marriage void after one of the spouses has died.

Some background: Nancy and Luke Laubenheimer married on Aug. 18, 1972. Luke died on Aug. 24, 2001. In 1999, about two years before Luke's death, Nancy executed a will that left her estate to Luke. In the event Luke predeceased her, the bulk of her estate was to go to Luke's three children whom Nancy had never adopted. Nancy never updated her will after Luke's death.

In Jan. 2007, Nancy suffered a stroke and her health began to decline. It is unclear exactly when Nancy's second husband, Joseph McLeod, came into Nancy's life, but by March 2007 Joseph and Nancy were living together.

On Oct. 1, 2008, Nancy suffered another stroke. On Oct. 11, 2008, Nancy's doctors signed a "statement of incapacitation" opining that Nancy was "unable to receive and evaluate information effectively or to communicate decisions," and that she lacked "the capacity to manage health care decisions." The statement of incapacitation activated Nancy's health care power of attorney, which named Nancy's cousin, Diane Kulpa, as her agent for health-care decisions.

On Oct. 13, 2008, Nancy was admitted to a nursing home. On Nov. 3, 2008, Joseph removed Nancy from the nursing home to obtain a marriage license. On Nov. 7, 2008, Joseph and Nancy married. On Jan. 13, 2009, Luke's daughter Patricia Mudlaff filed a petition seeking guardianship for Nancy.

Mudlaff's petition alleged that Nancy "suffers from severe cognitive disability due to several strokes." The petition alleged that Joseph had removed Nancy from the nursing home against medical advice and that Nancy needed a guardian to readmit her to the nursing home. The petition contained an examining physician's report dated Jan. 15, 2009, which opined that Nancy was incompetent and in need of a guardian.

On Jan. 27, 2009, the trial court appointed Nancy's cousin, Diane Kulpa, as a temporary guardian of Nancy's person. The court appointed Nancy's sister as temporary guardian of Nancy's estate. The court found that there was a "reasonable likelihood" that Nancy was incompetent.

Nancy died on Feb. 5, 2009.

On June 9, 2009, Joseph filed a petition for the formal administration of Nancy's estate. Joseph requested that the court appoint him as personal representative of the estate. Joseph filed Nancy's 1999 will with the court but also asserted his Wis. Stat. § 853.12 right to a share of Nancy's estate. Section 853.12(1) provides that if a testator executed a will prior to marrying the surviving spouse, the surviving spouse is entitled to a share of the estate. The surviving spouse's share is equal to what his or her share would be if the testator died intestate, minus devises made to the testator's children and their issue. See § 853.12(2). As Nancy did not have any biological or adoptive children, Joseph argued that he was Nancy's sole heir.

Mudlaff also filed a petition for the formal administration of Nancy's estate. Mudlaff argued that Nancy's marriage to Joseph was invalid on the grounds that Nancy lacked the requisite mental capacity to enter into a marriage, and therefore Joseph had no right to a surviving spouse's share of Nancy's estate.

The trial court denied Mudlaff's petition on the grounds that Wis. Stat. § 767.313(2), quoted below, prohibits a court from annulling a marriage after the death of a party to the marriage. Mudlaff appealed. The Court of Appeals certified the matter to this court.

Wis. Stat. § 767.313(2) provides that "[a] judicial proceeding is required to annul a marriage. A marriage may not be annulled after the death of a party to the marriage." The trial court ruled that, given Nancy's death, § 767.313(2) deprived it of any power to address Mudlaff's petition.

Mudlaff argued on appeal that while the court could not annul Nancy's marriage to Joseph, it did have the power to void the marriage. Mudlaff pointed to various provisions of Wis. Stat. ch. 765 which state that a marriage is invalid if one of the parties was incompetent at the time of marriage. Under Wis. Stat. § 765.21, a marriage entered into in violation of these provisions "shall be void."

Mudlaff argues that because Nancy was not competent when she married Joseph, the marriage was void from its inception, and thus the court could "void" the marriage even though it could not "annul" the marriage.

In its certification, the Court of Appeals traced the historical development of marriage law from statehood to 2005 and examined various terms, including: "valid" marriages, "void" marriages, "voidable" marriages, "annulled" marriages, and "declared null and void" marriages.

In the end, the Court of Appeals asked the Supreme Court to decide how the statutes and the case law should be applied to these consolidated cases . From Washington 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:

2011AP676-CR State v. Byrnes

2011AP220 State v. Quintero

2011AP886 Rosenthal v. Village of Ashwaubenon
2011AP1180-CR State v. Coleman

2011AP793-CR State v. Raether

2011AP123 Nelson v. Furrer

2010AP2773 The Key Law Firm v. CenturyTel, Inc.

2010AP2599-CR State v. Anderson
2011AP752-CR State v. Tucker
2011AP1068 Kisting v. Village of Waunakee
2011AP1299-CR State v. Gutierrez-Hernandez - Chief Justice Shirley S. Abrahamson dissents.
2012AP1050 State v. Gant

2010AP3054-CR State v. Elam

Eau Claire
2011AP1874 Berg v. Secura Ins.

2011AP210 Thompson v. Town of Brooklyn

Green Lake
2012AP2042-W Selvy v. Cir. Ct. Green Lake Co.

2011AP2783 Jackson Co. DHS v. Robert H.

2011AP1716 Wausaukee School Dist. v. Wausaukee Ed. Assoc.

2007XX1350-CR State v. James
2009AP746-W/2010AP1064 Washington v. State
2010AP966 State v. Hennings
2010AP2881-W Guman v. Pugh
2010AP3063-CR State v. Turner
2011AP68-CR State v. Lobermeier
2011AP362 Hernandez v. BNG Management - Justices Patience Drake Roggensack and Annette Kingsland Ziegler dissent.
2011AP363 Asst. Living Concepts v. Siegel-Gallaher
2011AP1393-CR State v. Hampton
2011AP1323-CR State v. Newman
2011AP1502-CR State v. Ward
2011AP1537-CR State v. Brewer
2011AP1600-CR State v. Laughrin
2011AP1675-CR State v. Nelson
2011AP1704-CR State v. Devroy
2011AP1922-CR State v. Carroll
2011AP1940-CR State v. Rayford
2011AP2029 State v. Parrish
2012AP167-69 State v. Stacee P.
2012XX735-CR State v. Willis

2012AP632 Ozaukee Co. DHS v. Monique B.

2010AP1056-CR State v. Armstrong
2011AP1108/09-CR State v. Bizzle

2011AP2858-CR State v. Moynihan

St. Croix
2011AP2340 Helmen v. Helmen

2011AP958 Pride v. City of Eagle River

2011AP1497/98-CR State v. Quinonez

2011AP868-CR State v. Jacob
2011AP1077 State v. Blank
2011AP2155/56-CR State v. Wegner

Tom Sheehan
Court Information Officer
(608) 261-6640

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