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Wisconsin Supreme Court accepts 11 new cases

Madison, Wisconsin - December 19, 2012

The Wisconsin Supreme Court has voted to accept 11 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.

2011AP1770-71-CR    State v. Melton

This case examines whether a circuit court has “inherent authority” to order the destruction of a presentence investigation (PSI) report after entry of judgment not related to charges in the original sentencing proceeding.

Some background: Brandon Melton pled guilty to second-degree sexual assault of a child under 16 years of age and to theft of movable property.   Additional charges for battery, felony bail jumping, and second-degree sexual assault of a child were dismissed but read in for sentencing purposes.  The circuit court ordered the Department of Corrections (DOC) to prepare a PSI report. 

After receiving the Nov. 19, 2009 PSI report, Melton moved to strike portions of it that discussed certain uncharged offenses under a section entitled “Description of Offenses.”  At a hearing on the motion held before sentencing, he argued that the inclusion of the uncharged offenses was prejudicial and violated DOC rules. 

The circuit court concluded the information about the uncharged offenses would be of little use to the court at sentencing and would be prejudicial to the defendant after sentencing.  The circuit court, citing its inherent authority, issued a written order on March 31, 2010, directing the DOC to prepare a second PSI report omitting the objectionable information.  The order also directed that the first PSI report “shall be sealed and destroyed following the expiration of any appellate time limits.”  Neither party objected to this order. 

At the start of the sentencing proceeding (which was held before a different judge), defense counsel advised the sentencing court that a new PSI report had been prepared and was to be used for sentencing purposes.  The defendant was sentenced to four years of initial confinement and eight years of extended supervision. 

Following sentencing and entry of the judgments, the successor circuit court (a third judge), on its own motion, scheduled a review hearing after discovering the order that the first PSI report was to be destroyed after the expiration of the appellate time limits.  The court advised the parties it had set the matter for a hearing because it did not believe it had the authority to destroy a PSI report.  Defense counsel advised that the defendant was pursuing an appeal so the matter of destroying the PSI report might be premature. 

The circuit court found that since it was ordering the PSI report not be destroyed, the pendency of the appeal was irrelevant.  The circuit court modified the prior order, mandating that the first PSI report be sealed rather than destroyed.  The defendant appealed, and the Court of Appeals reversed.

The Court of Appeals held the circuit court has the authority to destroy the first PSI report to prevent confusion as to which PSI report in the file should be used for sentencing.  It pointed to this court’s decision in State v. Henley, 328 Wis. 2d 544, ¶73, which said that courts exercise inherent authority “to ensure the efficient and effective functioning of the court, and to fairly administer justice.”  The Court of Appeals said the defendant’s appeal was still pending and the potential existed for resentencing.

The state says the Court of Appeals’ decision is not supported by prior “inherent authority” cases, and that placing a PSI report under seal achieves the same end as destruction because it prevents public disclosure of the contents of the report.

The state also argues destruction of the PSI report is contrary to SCR 72.01, which mandates the retention of all records in felony cases for 50 years after entry of judgment, and that there is a real risk that courts will use the Court of Appeals’ decision in this case to justify destroying other court records in other circumstances. 

Melton argues having two PSI reports in a file presents an opportunity for confusion and injustice and that the state never addresses what purpose would be served by keeping the “wrong” PSI report in the court file when a valid PSI report remains intact.  From Waukesha County.

2012AP99    Outagamie Co. v. Melanie L.

This case examines the statutory standard for determining whether a person is competent to refuse medication and treatment for mental illness.

More specifically, the Supreme Court is asked whether Outagamie County failed to prove that Melanie L. was incompetent to refuse medication and treatment when the evidence showed that Melanie recognized she is mentally ill and needs medication. 

Some background: In 2009, when Melanie was living with her mother in Michigan, she asked her mother to take her to the hospital because she was anxious, having strange thoughts, and was unable to eat or sleep.  She was hospitalized for nine days and was diagnosed with major depressive disorder with psychotic features.  She was prescribed Risperdal.  Melanie stopped taking the medication due to side effects and because she could not afford to pay for it. 

Melanie moved to Wisconsin in 2010.  She got her own apartment and started taking classes to pursue a nursing career.  In February of 2011, Melanie was detained for mental health treatment after her boyfriend took her to the hospital.  Melanie told an examiner psychiatrist that she felt similar to when she had the episode two years earlier in Michigan.  Melanie was hospitalized for two weeks and diagnosed with psychotic disorder. She was treated with medication, including Seroquel, which she said was effective and asked later to be prescribed again.

At the probable cause hearing following the emergency detention, Melanie agreed to the probable cause findings necessary to continue her detention and she agreed to the entry of a temporary medication order.  At a final hearing on February 18, 2011, Melanie stipulated to the entry of a six-month commitment order and an involuntary medication order.  During the six-month commitment, Melanie had been under the care of the county’s psychiatrist, Dr. Milagros Cuaresma Ambas. 

About a month before the six-month commitment was to expire, the county filed a petition seeking a 12-month extension and another order requiring Melanie to take prescribed medications.  A hearing was held on the petition on Aug. 17, 2011.  The county’s case manager, Kate Siebers, who had never met with Melanie in person and had been assigned to her case for two months, testified Melanie lacked insight into her mental illness and the purpose of treatment.

A court-appointed examiner, Dr. Jagdish Dave, conceded Melanie could express an understanding of the risks and benefits of psychotropic medication because of her educational background, but she was not able to apply that understanding “to her advantage.”

The circuit court ordered an extension of the mental health commitment and an involuntary medication order. Melanie appealed, and the Court of Appeals affirmed.

On appeal, Melanie objected to the involuntary medication order and argued the county failed to meet its burden of proving she was not competent to refuse medication.

Melanie argued Dave’s opinion that she was not competent to refuse medication did not fit the statutory standard of incompetency because Dave testified she was incapable of applying an understanding “to her advantage” instead of “to . . . her mental illness . . . in order to make an informed choice.”  Dave said Melanie did not resume taking medication after suffering a miscarriage and did not voluntarily attend follow-up care.

Melanie also argued the evidence supported a finding that she can apply an understanding of the advantages, disadvantages, and alternatives to her mental illness. The Court of Appeals rejected Melanie’s argument that the expert must recite the specific words of the statute in order for the evidence to be sufficient. The Court of Appeals said although Melanie requested Seroquel, she returned to Ambas to make that request because the county prompted her to return. 

Melanie argues that this case presents the opportunity for this court to interpret and apply the competency standard set forth in § 51.61(1)(g)4, governing the right to refuse medication and treatment.  She says that statute and statutes with virtually identical language apply to individuals who are under a mental health commitment and to those who are committed to a treatment facility or receiving services for developmental disabilities, alcoholism, or drug dependency, including commitments made under ch. 55 and to criminal defendants found incompetent or not guilty by reason of mental disease or defect, under ch. 971. From Outagamie County.

2012AP665    Manitowoc Co. v. Samuel J.H.

In this certification, the Supreme Court examines a possible inconsistency in provisions of Chpt. 51, the state’s involuntary commitment law.

More specifically, the Court of Appeals asks whether § 51.35(1)(e) mandates a hearing within ten days for all transferred patients, including those transferred for medical reasons under § 51.35(1)(e)1., or whether the mandate applies only to those transferred due to a violation of the conditions of outpatient placement as set forth in § 51.35(1)(e)2.-5.

Some background: On Sept. 22, 2011, Samuel J.H., who was subject to an involuntary commitment order under ch. 51, Stats., was transferred from an outpatient facility to inpatient care.  He was given a written notice of his rights under § 51.35(1)(e)1.  Samuel objected to the transfer, and counsel was appointed for him and a petition for review of transfer was filed.  Relying on the Court of Appeals’ holding in Fond du Lac County v. Elizabeth M.P., 2003 WI App 232, ¶¶26, 28, 267 Wis. 2d 739, 672 N.W.2d 88, Samuel argued that he was entitled to a hearing within 10 days of transfer.  He also asked to be returned to outpatient status.

A hearing was held on Samuel’s petition on Dec. 19, 2011.  During the hearing the circuit court commented that it found the language in Elizabeth M.P. “at least mildly confusing.”  The circuit court concluded that a threshold question presented was whether Samuel was transferred due to a rule violation, and the court invited testimony on the reason for Samuel’s transfer. 

Samuel’s social worker said Samuel had been becoming increasingly psychotic and his behavior had become out of control to the point where he was totally delusional and punching holes in the wall.  The social worker testified Samuel did not directly threaten anyone but he reportedly made a general threatening statement to the effect of “we’re going to hell and somebody needs to get shot.”  The social worker said Samuel said things that did not make sense and was doing a lot of nonsensical chanting.  The social worker said Samuel was not transferred because of a threat or act to harm himself or others. 

The circuit court concluded Samuel was transferred for medical reasons and thus was not entitled to the mandatory hearing under § 51.35(1)(e)2.  The circuit court acknowledged that although Elizabeth M.P. expressly addressed § 51.35(1)(e)2. when discussing a mandatory hearing within 10 days, it “threw the net over everything” in saying more broadly that a transfer under § 51.35(1)(e) requires a hearing within 10 days.  The circuit court concluded the broad statement in Elizabeth M.P. was not consistent with the language of the statute.

In its certification, District II Court of Appeals says the issue presented in Elizabeth M.P. was whether the circuit court had jurisdiction to transfer the subject to inpatient status when judicial review of the county’s decision to transfer her was not held within 10 days as required by § 51.35(1)(e)3. District II says the Elizabeth M.P. court blurred the distinction between the two types of transfer.

District II says the inconsistency in Elizabeth M.P. was noted both by the circuit court and by the county, and while District II says the inconsistency is apparent to it as well, only the Supreme Court may address it. From Mantiowoc County.

2009AP2916-CR    State v. Sahs

This case examines whether a defendant’s statements to his probation agent, in which he confessed to a new crime of possession of child pornography, were statements compelled as a matter of law in the context of probation.

Some background: Gregory M. Sahs was convicted, following entry of a guilty plea, of one count of possession of child pornography and placed on probation for three years.  The state learned of this crime only because of statements Sahs made to his probation agent while Sahs was on probation for an earlier offense. 

Before being administered a polygraph test, Sahs admitted to his probation agent that he kept a computer at the home of a friend and had accessed child pornography. Sahs acknowledged this confession would result in revocation. 

The agent contacted police, and on Jan. 24, 2007, detective Jacque Chevremont retrieved the computer from the Butterfield home.  The following day, Chevremont met with Sahs while he was in custody and read him his Miranda rights. Sahs indicated he understood.  Sahs waived his right to an attorney and gave a statement admitting to downloading child pornography while on probation. Sahs’s probation was revoked and he began serving an 18-month revocation sentence. 

Meanwhile, police obtained a search warrant and confirmed there was child pornography on the computer.  On June 26, 2007, Sahs agreed to speak with Chevremont and again waived his Miranda rights.  He admitted to making statements to his probation agent regarding downloading child pornography while on probation. 

On June 28, 2008, Sahs was charged with two counts of possession of child pornography, contrary to Wis. Stat. § 948.12(1m) and (3)(a), for the contents found on his computer.  Sahs pled not guilty to both counts. 

On Oct. 27, 2008, Sahs filed two motions to exclude this evidence.  Sahs moved to suppress the statements he made to his probation agent on the grounds that the statements were compelled, incriminating and testimonial. Sahs claims that his oral confession to his agent was written down on a state Department of Correction’s form.  Sahs stated that the probation agent checked a box on this form, indicating that Sahs was required to provide the information, but it could not be used against him in a criminal proceeding. 

Sahs also moved to suppress evidence of child pornography discovered on the computer and the ensuing statements made to police investigators on the theory that this evidence was obtained as a direct consequence of the compelled statements made to the agent.
The trial court denied Sahs’s motions and Sahs entered a guilty plea.  He appealed, and the Court of Appeals affirmed the trial court’s determination that Sahs’s statements were not compelled, noting that the mere fact that an individual is required to appear and report truthfully to his or her probation agent is insufficient to establish compulsion.  See State v. Mark, 2006 WI 78, ¶25, 292 Wis. 2d 1, 718 N.W.2d 90 (citing Minnesota v. Murphy, 465 U.S. 420 (1984)). 

Because the circuit court found that the statements were voluntary, the state maintains that Sahs did not meet his burden in showing that his initial statement was compelled.

Sahs asks the Supreme Court to review whether the Court of Appeals erred in denying his appeal based on his statement to the probation agent that was allegedly not in the record, and whether the trial court erred in concluding that defendant’s statement to the probation agent was not coerced. From Milwaukee County.

2011AP394-CR    State v. Alexander

This case examines whether a criminal defendant has a constitutional right to be present when a trial court questions a sitting juror and dismisses that juror for cause, or whether that right may be waived by counsel without the trial court conducting a personal colloquy with the defendant.

Some background: Demone Alexander was convicted, following a jury trial, of the 2007 shooting death of Kelvin Griffin.  Alexander contends that his constitutional right to be present during jury selection was violated when the trial court conducted in-chambers interviews with two jurors in his absence.  It is undisputed the discussion happened in the presence of both counsel, and that Alexander’s counsel waived his presence. 

Near the end of the trial ““Juror 10”” told the bailiff that she might be acquainted with a woman (later identified as “Monique”) in the gallery of the courtroom.  The trial court explored the matter further in chambers with both counsel for Alexander and the state present, discussing the juror’s relationship to a woman in the gallery who had been friends with the juror’s sister.

The trial court withheld decision, and moved on to an issue involving a second juror, ““Juror 33”.”
Again, in chambers, with all counsel present, though without Alexander, ““Juror 33”” told the trial court that he knew a witness who had just finished testifying for the defense, and that he recognized the witness as soon as he saw him as someone she knew for about three years.

The following day, the day for closing arguments and deliberations, a third juror issue surfaced, again involving “Juror 10”.  That morning, “Juror 10” called another juror to say she would not be in because her boyfriend was in a car accident.  This information was given to the trial court.

The court, the state and the juror discussed the situation at length, and the court ultimately struck “Juror 10” and “Juror 33”.

On appeal, the Court of Appeals concluded that Alexander’s presence in the trial court’s chambers during the interview of the two jurors during trial was properly waived by his trial counsel.

Alexander now asks whether a defendant has a personal, constitutional right to be present whenever any substantive step is taken in a case, including the right to be present at all proceedings when the jury is being selected. In support of this argument the petitioner cites Wis. Stat. § 971.04(1) (which provides in relevant part that a “defendant shall be present … [d]uring voir dire of the trial jury.”). 

The Court of Appeals disagreed with the broad definition of voir dire this argument requires, ruling that this constitutional and statutory mandate is applicable only to the initial selection of the jury, i.e., prior to the taking of testimony. The Court of Appeals stated: “Once the jury has been selected and sworn and the trial has begun, a defendant may voluntarily absent himself from various trial proceedings.”  

Alexander asserts that prior appellate decisions have held that “[a] trial runs from the commencement of jury selection through the final discharge of the jury and at any time an action is taken affecting the accused.” Williams v. State, 40 Wis. 2d 154, 160, 161 N.W.2d 218 (1968). From Milwaukee County.

2011AP902    Sawyer v. West Bend Mut. Ins. Co.

In this case, the Supreme Court reviews whether an insurer must provide coverage to defend in federal court an insured who sent one or more unsolicited fax advertisements in violation of the federal Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227.

More specifically, the Court examines whether the fax message at the center of this dispute is considered a publication of material that violates a person’s right to privacy, thereby triggering specifically defined personal and advertising injury coverage under a West Bend Mutual Insurance liability policy.

Some background: The dispute began or around Dec. 9, 2005, after Atlas Heating and Sheet Metal Works, Inc. (Atlas) sent an unsolicited “junk” fax advertisement to Isaac Sawyer’s business, A-1 Security (A-1 Security).  The advertisement was printed by A-1 Security’s fax machine, using its paper and its toner.  Sawyer had not given Atlas express invitation or permission to fax advertisements, nor did Sawyer have a business relationship with Atlas. 

A-1 Security commenced a class action in Milwaukee County Circuit Court against Atlas.  A-1 Security alleged that the fax was sent in violation of the TCPA. The class action was removed to federal court on federal question jurisdiction. A-1 seeks an injunction, $500 in statutory damages (per incident, of which there may be many), and damages for the toner and paper consumed by the one-page fax.  

West Bend has defended Atlas under a reservation of rights to dispute coverage from the beginning of the federal action. West Bend initially sought to intervene in the federal action to have insurance coverage addressed. However, A-1 Security commenced a separate declaratory action in Milwaukee County Circuit Court to raise the insurance coverage issue and opposed West Bend’s intervention in federal court. The federal court denied intervention to West Bend, and the circuit court declaratory action moved to the summary judgment stage.

On cross motions for summary judgment, the circuit court held: (1) the plaintiff in the case was Sawyer as an individual and that his individual right to privacy was violated; (2) the West Bend policy did not require a defense under the policy’s clear definitions of property damage caused by an occurrence; (3) West Bend did have a duty to defend under the specifically defined personal and advertising injury liability coverage;  (4) The one page fax advertisement of HVAC services was “publication” of material that violated A-1 Security’s right of privacy; and (5) the language of the policy was ambiguous and consequently needed to be construed in favor of the insured.

The court also held that the “knowing violation of rights of another” exclusion did not apply here because the allegations in the complaint provided for the possibility that Atlas may not have had the requisite knowledge that it was violating Sawyer’s right of privacy; in other words, Atlas may have negligently, and not intentionally, violated Sawyer’s right of privacy. 

West Bend appealed.  On appeal it argued that there were three reasons why the policy should not be construed to cover damages from Atlas’s unsolicited fax:  (1) the policy covers only individual privacy rights, and the plaintiff in this case, A-1 Security, is a business; (2) the complaint does not allege facts describing a privacy violation covered by the policy’s “personal and advertising injury” provision; and (3) there has been no “publication” of the fax as required by the policy. 

In a split decision, the Court of Appeals affirmed the circuit court order granting summary judgment, ruling that West Bend must afford Sawyer insurance coverage in the class action lawsuit currently pending in federal court.

West Bend argues that the Court of Appeals’ decision does not fully address the applicability of Wisconsin privacy law, which holds that to be an invasion of privacy the facsimile must be ‘highly offensive’ in nature. West Bend contends that “A-1 submitted no evidence and never argued that the one page facsimile transmission advertising HVAC services was highly offensive to the business.” The material, a simple advertisement of HVAC services, “has no connection to, and makes no reference to anything a reasonable person would consider private or highly offensive.”

A decision by the Supreme Court could clarify how statutes interact with liability insurance contracts interact with statutes under these circumstances. From Milwaukee County.

2011AP2888    Village of Elm Grove v. Brefka

This case examines whether a municipal court or a circuit court has competence to extend the deadline for requesting a refusal hearing under Wis. Stat. § 343.305 if the defendant does not meet the pre-condition of requesting a hearing within 10 days.

Some background: Richard K. Brefka’s vehicle was stopped by Village of Elm Grove police on Dec. 12, 2010.  During the traffic stop Brefka apparently refused the police officer’s request that he undergo a chemical blood alcohol test.  Following Brefka’s refusal, the police officer gave Brefka a “Notice of Intent to Revoke Operating Privilege” pursuant to Wis. Stat. § 343.305(9)(a).  The notice was dated Dec. 12, 2010.  Consistent with the statute, the notice advised Brefka that he had ten days to request a refusal hearing and that his failure to request a refusal hearing would lead to the court revoking his operating privileges 30 days after the date of the notice.

Brefka’s attorney requested a refusal hearing, but did not do so until Dec. 28, 2010, which was more than 10 days after the date on which Brefka received the notice.  Brefka retained new counsel, who filed a motion with the municipal court on July 14, 2011 to extend the time limit for requesting a refusal hearing.  The motion requested that the deadline for requesting a refusal hearing be extended due to the excusable neglect of both Brefka and his original attorney.  The Village of Elm Grove opposed Brefka’s motion and moved to strike his untimely request for a refusal hearing. 

After holding a hearing on the issue, the municipal court denied Brefka’s motion and dismissed his request for a refusal hearing.  It concluded that Brefka’s failure to request the refusal hearing within the 10-day period deprived it of competence to proceed with Brefka’s request.  The circuit court agreed with the municipal court’s decision and remanded the matter to the municipal court, presumably to proceed with the revocation of Brefka’s driving privileges.

Brefka argued on appeal that the municipal court and the circuit court had competence to extend the deadline for requesting a refusal hearing under Wis. Stat. §§ 800.115(1) and 806.07. Section 800.115(1) allows a defendant in a municipal court case to move for relief from a judgment or order on the grounds of excusable neglect within six months of the municipal court ruling.  Similarly, Wis. Stat. § 806.07(1)(a) grants a circuit court discretion to relieve a party from the effect of a judgment or order due to excusable neglect.  Brefka contended that these provisions authorize discretion in the municipal and circuit courts because the Court of Appeals had ruled in State v. Schoepp, 204 Wis. 2d 266, 554 N.W.2d 236 (Ct. App. 1996), that a refusal proceeding is a special proceeding to which the rules of civil procedure are applicable. 

The Court of Appeals rejected Brefka’s arguments and held that municipal and circuit courts lacked competence to consider Brefka’s untimely request for a refusal hearing and his motion to extend the time within which to file such a request.  Relying on the rule that statutes are to be construed by discerning the plain meaning of the words used by the legislature, the Court of Appeals pointed to the fact that Wis. Stat. § 343.305(9)(a)4. explicitly states that revocation will begin on the 30th day if no request for a hearing is received with the 10-day period.

Brefka contends that Wis. Stat. § 343.305(9)(a) establishes the 10-day limit to request a refusal hearing.  He asserts that the statute is silent as to whether courts can extend tend the time limit or allow a reopening of the refusal issue after a suspension has been imposed.  Because the statute is silent on this point, Brefka contends that Schoepp requires the normal rules of civil procedure to come into play, which allow for judicial extensions of deadlines.

The village of Elm Grove contends that Brefka’s assertion that refusal proceedings are routinely reopened is unsupported by facts of record.  It seeks a decision affirming the Court of Appeals’ interpretation of the relevant statutes. From Waukesha County.

2011AP1158   Showers Appraisals v. Musson Brothers

This case involves a lawsuit over water damage that occurred to a privately owned building during a road construction project in Oshkosh in the summer of 2008. The Supreme Court examines whether a private governmental contractor is entitled to sovereign immunity under Estate of Lyons v. CNA Insurance Company, 207 Wis. 2d 446, 558 N.W.2d 658 (Ct. App. 1996) for its efforts to maintain water drainage on the construction site so as to protect the adjacent private property from water damage.

Some background: The state hired Musson Brothers to reconstruct about a one-mile stretch of State Highway 44, also known as Ohio Street in Oshkosh.  The construction work was being done pursuant to an agreement between the City and the state Department of Transportation (DOT). 

The agreement called for, among other things, the replacement of the sanitary and sewer mains in an area that included Mark W. Showers’ business, Showers Appraisals, at the corner of 6th Street and Highway 144. The contract included DOT’s Standard Specifications for Highway and Structure Construction, which stated, in part, that Musson was “solely responsible for the means, methods, techniques, sequences, and procedures of construction.”

During the project, Musson removed most of the storm sewer system serving the worksite. The city contends this was contrary to a verbal agreement that Musson would remove the storm sewer piecemeal, block-by-block, so that the bulk of the storm sewer system would remain operational during the course of the construction work.

The area received historically heavy rains June 8 through June 12, 2008, including 4.36 inches of rain on June 12. The worksite flooded, and water eventually channeled its way under Showers’ basement floor, which ruptured from the hydrostatic pressure. More than seven feet of water filled Shower’s basement, resulting in approximately $140,000 in uninsured damages.

Showers sued Musson and the City, alleging that his property was damaged as a result of their negligence on the project. The City and Musson each filed cross-claims against each other for indemnification, and they each filed motions for summary judgment against all of Showers’ claims.  The trial court granted summary judgment, reasoning that governmental immunity applied to both the City and Musson. 

Showers claimed on appeal that Musson was not entitled to governmental immunity as an agent under Lyons because the contract did not contain “reasonably precise specifications.”  Showers claimed that Musson had too much discretion as to how to go about its work.  Therefore, Showers claimed that Musson fell outside the Lyons criteria because it was too independent from the State to be classified as an “agent.”

However, the Court of Appeals held that DOT’s standard specifications, combined with DOT’s regular oversight of Musson’s work, curtailed Musson’s discretion in such a way that Musson was subject to “reasonably precise specifications,” as Lyons requires.  The Court of Appeals found that Musson had immunity under Lyons. 

A decision by the Supreme Court could clarify the limits of governmental immunity under the circumstances presented here. From Winnebago County.

2011AP2864-CRAC    State v. Johnson

This child sex assault case reaches the Supreme Court after an interlocutory appeal involving pretrial discovery orders by the trial court. The Supreme Court reviews several issues and underlying questions arising from the defendant’s request to view therapy records of the girl he is accused of assaulting. The case is stayed in the trial court, pending a decision by the Supreme Court.

Among the issues raised by the state in its petition for review:
-   Whether defendants have a constitutional right to disclosure of privately-held privileged records.
-   If defendants have such a constitutional right, does that right trump privilege statutes?
-   If defendants have such a constitutional right, did the defendant in this case establish a constitutional right to disclosure of the girl’s therapy records? 

Some background: The state charged Samuel Curtis Johnson III  in March 2011 with repeated sexual assault of a girl when she was between the ages of 12 and 15 years old. The state alleged that Johnson touched the girl’s breasts, buttocks, and vagina under her clothes. There appears to be no physical evidence of sexual assault, the Court of Appeals wrote in its discussion of the case.

Johnson moved the trial court for “in camera” inspection (i.e., the trial judge’s inspection in chambers) of the girl’s therapy records. The state argued that Johnson had not made the requisite preliminary showing for in camera inspection. In particular, the state said that Johnson failed to show that any relevant records existed, or that the girl was suffering from a mental illness at the time of the alleged assaults that would affect her ability to perceive the alleged events or relate the truth.

Through her counsel, the girl informed the court that she had reviewed the facts set forth in Johnson’s motion seeking in camera inspection of her records and that those facts were accurate. 

The trial court granted Johnson’s motion pursuant to State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993) and State v. Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298. The trial court found that the reasons and factual basis proffered by Johnson met the requisite requirement for relevancy and materiality.

The girl’s counsel then notified the court that the girl would not consent to in camera inspection of her therapy records, and that she was invoking her “absolute statutory privilege” to refuse to disclose her records. Counsel indicated that she  the girl understood the possible impact her decision would have on the state’s prosecution of Johnson.

The state sought an order from the court compelling the production of the girl’s therapy records regardless of her invocation of privilege. The girl objected.

Johnson and the girl argued that the only remedy available was for the trial court to bar her from testifying until such time as she consents to the release of her privileged records. The state responded that the physician-patient privilege was not absolute and the appropriate remedy was for the trial court to issue a subpoena compelling the release of the records directly to the court for in camera review.

The trial court considered both options and found neither appropriate.  The court instead issued a six-part order:
1. The court would honor the girl’s assertion of the privilege; and
2. allow the girl to testify; and
3. inform the jury that she had been ordered to release her therapy records for in camera inspection; and
4. inform the jury that the girl had a privilege to refuse the production of her records; and
5. inform the jury that she had, in fact, refused the court’s order; and
6. inform the jury that, as a result of her refusal, a presumption exists that the contents of the records would have been helpful to the defense. 

The state and Johnson both petitioned the Court of Appeals for leave to appeal. The state sought review as to whether Johnson made a sufficient showing under Shiffra and Green to obtain an in camera inspection. The state also sought review of the trial court’s refusal to compel the production of the girl’s therapy records following her invocation of privilege. Johnson sought review of the trial court’s order allowing the girl to testify, despite her refusal to release her therapy records for in camera review.

The Court of Appeals granted leave to appeal, and ultimately: (1) affirmed the trial court’s order for in camera inspection; (2) reversed the trial court’s order allowing the girl to testify while also refusing to release her records; and (3) remanded for further proceedings consistent with the court’s opinion.

The Court of Appeals held that the therapy occurred during the time period of the alleged assaults made it reasonably likely the records contained relevant information necessary to a determination of guilt or innocence. 

In a dissent, Chief Judge Richard S. Brown, District II Court of Appeals, agreed with the majority that Johnson made the requisite preliminary showing required for in camera review, but disagreed  that Shiffra necessarily requires suppression of the girl’s testimony. Justices David T. Prosser and Michael J. Gableman did not participate. From Racine County.

Paul Davis Restoration of S.E. Wisconsin, Inc. v. Paul Davis Restoration of Northeast Wisconsin

This case arises from a dispute over business territory between two Paul Davis Restoration franchises. The Supreme Court examines issues related to whether a judgment entered against only an entity’s trade name is enforceable against the trade name and the underlying entity.

Some background: Paul Davis Restoration of S.E. Wisconsin (Paul Davis S.E.) filed a statement of claim against Paul Davis Restoration of Northeast Wisconsin (Paul Davis N.E.), alleging that Paul Davis N.E. violated a franchise agreement by performing work in Paul Davis S.E.’s territory without providing proper notification or compensation.

The parties proceeded to binding arbitration and Paul Davis S.E. was awarded $101,693. Paul Davis S.E. moved the circuit court to confirm the award and named “Paul Davis Restoration of Northeast Wisconsin / Matthew Everett” as defendants. Because Everett was never made a party to the arbitration action, he objected to being named as a defendant in the motion to confirm the arbitration award.

Paul Davis S.E. subsequently moved the Milwaukee County Circuit Court to enter judgment against not only Everett personally, but also EA Green Bay LLC, which operated the subject franchise business under the Paul Davis Restoration trade name. The circuit court did not enter judgment against either Everett or EA Green Bay LLC but, rather, against the d/b/a designee—”Paul Davis Restoration of Northeast Wisconsin.” Paul Davis S.E. did not appeal the name in the judgment entry.

Paul Davis S.E. then filed a garnishment action in Brown County seeking to enforce the judgment. The garnishee bank account was held by Denmark State Bank under the name “EA Green Bay LLC d/b/a Paul Davis Restoration & Remodeling of NE WI d/b/a Building Werks.” Paul Davis N.E. moved to dismiss the action, claiming the underlying judgment against it was unenforceable and could not form the basis for the garnishment action.

The circuit court said the evidence made clear that EA Green Bay LLC and Paul Davis N.E. were the same entity.  Thus, the court ordered the bank to release account funds to satisfy Paul Davis S.E.’s judgment.  Paul Davis N.E. appealed.  The Court of Appeals reversed. 

On appeal, Paul Davis N.E. continued to argue that the underlying judgment against it was void as unenforceable because a d/b/a designee is not a legal entity.  The Court of Appeals agreed.

The Court of Appeals said if judgment had been entered against EA Green Bay LLC, any assets held under its d/b/a designation could have been garnished to satisfy the judgment, but it said the converse is not true.  It said since the judgment confirming the arbitration award was entered only against the d/b/a designee, a legal non-entity, it is unenforceable and the circuit court erred when it denied Paul Davis N.E.’s motion to dismiss the garnishment action.

Paul Davis S.E. argues that a decision by the Supreme Court would help to establish a policy to discourage entities from hiding assets under various trade names. Paul Davis S.E. reasons that because the money judgment was entered against Paul Davis N.E. and Paul Davis N.E. is simply another way to refer to EA Green Bay LLC, the judgment against Paul Davis N.E. is equivalent to a judgment against EA Green Bay LLC, which means the garnishment action can proceed against the bank account which bears EA Green Bay LLC’s name.

Paul Davis N.E. says that Paul Davis S.E. never requested leave of the court to add EA Green Bay LLC as a defendant, nor did Paul Davis S.E. ever try to specifically include EA Green Bay LLC as a party to the arbitration proceedings.  Paul Davis N.E. says that Paul Davis S.E.’s attempt to enforce its judgment against EA Green Bay LLC violates sound public policy that requires parties be named properly in pleadings to any lawsuit. From Brown County.

2011AP1566  United Concrete & Construction v. Red-D-Mix Concrete

This case examines who (judge as a matter of law or jury as a matter of fact) determines whether a representation made by a seller of a product is mere “puffery” or is legally sufficient to support a misrepresentation claim, including one brought under Wis. Stat. § 100.18. “Puffery” is defined as the expression of an exaggerated opinion, as opposed to a factual representation, regarding the quality of a good or service that cannot be proven true or false and is intended to sell the product or service.

Some background: Defendant Red-D-Mix is a maker and distributor of concrete.  Plaintiff United Concrete & Construction, Inc. (United) is a concrete contractor that contracts with end-users for the installation of concrete “flatwork,” such as patios and driveways.  United had used Red-D-Mix as a supplier for several years, including 2002 and 2003. United says it then switched to another supplier after it experienced pitting, scaling and crumbling of the concrete it installed due to Red-D-Mix’s concrete containing excessive amounts of “bleed water.” Bleed water emerges from the concrete after it is poured and water is forced up as sand and aggregate settles downward.

After allegedly receiving assurances from a Red-D-Mix sales representative that the bleed-water problem had been resolved, United decided to resume purchasing concrete from Red-D-Mix for the 2007 season. United claims that it once again suffered from the same excessive bleed water problems.

Customers began to complain about the problems to United.  Red-D-Mix claims that only a few customers actually complained and that United unilaterally decided to approach all of its customers even if they had not complained. 

United advised its 2007 customers that the problems with their patios or driveways resulted from defective concrete supplied by Red-D-Mix and that United intended to pursue legal action against Red-D-Mix.  United told its customers that it would attempt to obtain damages from Red-D-Mix and that it would allocate any money received among those individuals who had signed Assignment of Rights to Sue,  which purported to assign the customers’ rights against Red-D-Mix to United. A portion of United’s customers signed and returned the assignment documents.

Red-D-Mix asserts that the assignment was, in reality, a release of claims against United, which means that United will not be liable for any damages related to fixing or replacing those customers’ concrete work.

In 2008, United did file suit against Red-D-Mix and two of its insurers in Outagamie County Circuit Court. Its most recent complaint alleged claims for breach of contract, breach of express and implied warranties, negligence, indemnification, contribution, and violation of Wis. Stat. § 100.18. Red-D-Mix moved for summary judgment on all claims, which the circuit court granted.

The Court of Appeals reversed and remanded for further proceedings. The Court of Appeals rejected the circuit court’s conclusion that United’s claim under Wis. Stat. § 100.18 was defective because, as a matter of law, all of the misrepresentations alleged in United’s complaint were mere “puffery.” It held that the question of whether the alleged misrepresentations constituted puffery was a question of fact to be decided by the jury at trial, not a question of law to be decided by the court.

The Court of Appeals also ruled that United could proceed with its contract claims against Red-D-Mix, concluding that United had produced sufficient evidence of its damages and that the Assignments signed by United’s customers did not strip United of its right to sue Red-D-Mix or protect it from the claims of its customers.
Red-D-Mix seeks Supreme Court review of the issue of whether the court or the jury should determine whether a defendant’s alleged misrepresentations are mere puffery. It also asks the Supreme Court to review whether its decision in Linden v. Cascade Stone Co., 2005 WI 113, 283 Wis. 2d 606, 639 N.W.2d 189, precludes a contractor from attempting to obtain its customers’ claims against a subcontractor through an assignment and from then suing the subcontractor on those customer claims. From Outagamie 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:

2011AP1876  Schullo v. DeLaval, Inc. - Justice Patience Drake Roggensack dissents.

2011AP1314-CR State v. Callion
2011AP1795  Vasquez v. Injured Pat. & Fam. Comp.
2011AP1873-CR State v. Garcia
2011AP2622-CR State v. Umentum
2012AP780  Nicole P. v. Michael P.

2011AP2750-CR State v. Boswell

2011AP1034-CR State v. Rueden - Chief Justice Shirley S. Abrahamson dissents.

2011AP2075  Tyler v. Schoenherr - Justice Ann Walsh Bradley did not participate.

2010AP3042-CR State v. Zinke
2011AP2518-CR State v. Henke

2010AP393  Richards v. White

2010AP1583  Deutsche Bank National Trust v. Pauk - Chief Justice Shirley S. Abrahamson concurs.

2010AP1843  O’Grady v. Pfeiffer

2011AP228/1110 Kenneth F. Sullivan Co. v. McManamy - Justice Patience Drake Roggensack did not participate.

2011AP501  Kaufman v. Boston
2011AP515  Stanton v. Graham
2011AP1033  Greene v. Raemisch
2011AP1083  State v. Ali
2012AP578-79 Dane Co. DHS v. Angela M.K.

2011AP1066-CRNM State v. Jasper

2011AP2416  Dunn Co. Human Serv. v. Eric R. - Chief Justice Shirley S. Abrahamson dissents.

Eau Claire
2012AP286  Sands v. Menard
2012AP2030-W Gallentine v. Cir. Ct. Eau Claire Co.

Fond du Lac
2011AP1793  Hunter’s Point H.C. v. Town of Byron

2009AP1538-39 Discover Bank v. Smith

2011AP650  Buske v. Peckham - Justice N. Patrick Crooks did not participate.

2011AP819/1965 W.D. Hoard & Sons v. The Scharine Group
2011AP965-CR State v. Ace

2010AP2966-CR State v. Davis

2011AP1289-CR State v. Zanotti - Justice David T. Prosser, Jr. dissents.

2011AP1347-CR State v. Holliman

2011AP2687-CR State v. Pavlovic - Justice David T. Prosser, Jr. did not participate.

2011AP2839-CR State v. Beeter

La Crosse
2010AP2400-CR State v. Peel
2011AP1560  Jahn Transfer v. Horizon Freightways

2011AP2256/57-CR State v. Wilson - Chief Justice Shirley S. Abrahamson dissents. Justices Ann Walsh Bradley and David T. Prosser, Jr. join dissent.

2011AP1266  IVI North, Inc. v. B&B Metals Proc.

2011AP2554-CRNM State v. McCollum

2012AP901-W Jacobs v. Fox - Justice Ann Walsh Bradley did not participate.

2011AP1155  Koronkiewicz v. Spitzmacher

2010AP1128-CR State v. Velazquez-Perez

2011AP137  State v. Orengo - Chief Justice Shirley S. Abrahamson dissents.

2011AP307-CRNM State v. Jones - Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley dissent.

2011AP347-CR State v. Boriboune
2011AP678  Pappas v. County of Milwaukee
2011AP699-CR State v. Lock
2011AP776  State v. Fernandez
2011AP809-10-CR State v. Haywood
2011AP1167  Cartter v. Marcus Corp.
2011AP1418-CRNM State v. Scott
2011AP1428-CRNM State v. Jordan
2011AP1430  Hying v. Hying
2011AP1564-CR State v. Bethly
2011AP2042-CR State v. Pabon-Gonzalez
2011AP2265-CR State v. Williams
2011AP2268-CR State v. Huff
2011AP2270-71-CR State v. Hudson
2011AP2954-CRNM State v. Ferrer
2012AP156-W Coleman v. Meisner
2012AP430-W Reed v. Smith
2012AP442  Bach v. Linhart
2012AP548  State v. Yvette A.
2012AP675-W Hard v. Kremers
2012AP847  Maxberry v. ITT Tech
2012AP1110  State v. Robert T.
2012AP1283-84 State v. Tenesha T.
2012AP1607-W Kendrick v. Hepp

2012AP2040-W Tatum v. Wis. Judicial Commission - Justice David T. Prosser, Jr. did not participate.

2011AP2723  Wilson v. Cosgrove
2012AP249-51-W Zastrow v. Baenen/Walker/Swietakowski

2011AP334  Keller v. Patterson

2011AP343  State v. Thorud - Justice Patience Drake Roggensack dissents.

2011AP2441  Houston v. Freese - Justice Patience Drake Roggensack dissents.

2011AP1948-CR State v. Zimmerman - Justice David T. Prosser, Jr. did not participate.

2012AP691-CRNM State v. Henderson
2012AP1613-W Kyle v. Pugh

2011AP1660  State v. Hawkins

2011AP425  State v. Vollbrecht
2011AP1645  Hodge v. DOT

St. Croix
2011AP446  Croonquist v. Historic Hudson
2011AP1959  Edwards v. Pacific Cycle

2011AP1489-CR State v. Connour

2011AP1908-CR State v. Irving - Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley dissent regarding the first issue.

2009AP3048-CR State v. Ravesteijn
2011AP1482  Johnson v. City of Lake Geneva

2011AP1035-CR State v. Pocian
Chief Justice Shirley S. Abrahamson dissents. Justice David T. Prosser, Jr. did not participate.

2011AP1712-CR State v. Bennett
2011AP1852-CR State v. Jacobs
2012AP680-FT State v. Hespe
2012AP688-CRNM State v. French

2010AP2348  State v. Everett
2011AP1254-CR State v. Green
2011AP1399-CR State v. Benson
2011AP1742  Lang v. Lowe
2011AP2878-CRNM State v. Wagner

2011AP1538-CR State v. Wittrock
2011AP2491-CRNM State v. Plank
2012AP2100-W Williams v. Cir. Ct. Winnebago Co.

2010AP2319  State v. Talbot

Tom Sheehan
Court Information Officer
(608) 261-6640

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