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Wisconsin Supreme Court accepts eight new cases

Madison, Wisconsin - March 4, 2016

The Wisconsin Supreme Court has voted to accept eight new cases and acted to deny review in a number of other cases. The case numbers, issues, and counties of origin of granted cases are listed below. Hyperlinks to Court of Appeals' decisions are also provided where available. The synopses provided are not complete analyses of the issues presented. More information about any particular case before the Supreme Court or Court of Appeals can be found on the Supreme Court and Court of Appeals Access website.

2014AP2488-CR State v. Finley
This case examines what remedy may be available when a defendant who pleads no contest is misinformed that the maximum penalty that could be imposed is lower than the maximum actually allowed by law, and the sentence imposed is more than the defendant was told he could get.

More specifically here, the Supreme Court reviews whether the defect may be remedied by reducing the sentence to the maximum the defendant was informed and believed he could receive instead of letting the defendant withdraw his plea.

Some background: In 2011 Timothy L. Finley was charged with first-degree reckless endangerment with use of a dangerous weapon, substantial battery, strangulation and suffocation, and false imprisonment, all charged as acts of domestic abuse. A charging document filed later added a habitual criminality penalty enhancer.

Finley subsequently reached an agreement with the state whereby he would plead no contest to first-degree reckless endangerment as domestic abuse, with penalty enhancers for habitual criminality and use of a dangerous weapon. The maximum penalty for the offense, with the enhancers, was a term of imprisonment not to exceed 23 years and six months. The plea questionnaire/waiver of rights form completed by Finley's attorney erroneously identified the maximum penalty as 19 years and six months of imprisonment.

At the plea hearing, Finley said that he understood the elements of the offense of first-degree reckless endangerment. The circuit court identified each aspect of the penalty structure and explained that the repeater allegation would increase the incarceration period by not more than an additional six years and the enhancement provision for using a dangerous weapon would increase the term of imprisonment by not more than five years. The court then erroneously said, "So, the maximum you would look at then [is] nineteen years six months confinement. Do you understand the maximum penalties?" Finley said that he did, and the court accepted the plea.

At the sentencing hearing, the state recommended a total sentence of 15 years of imprisonment, consisting of 10 years of initial confinement and five years of extended supervision. The circuit court concluded the maximum penalty was appropriate and imposed the maximum authorized by law, 23 and one-half years, consisting of 18 and one-half years of initial confinement and five years of extended supervision.

Finley filed a post-conviction motion asking to be allowed to withdraw his plea because it was not entered knowingly, intelligently, and voluntarily. Finley alleged that the plea colloquy was deficient because he was not correctly informed of the maximum penalty. He also alleged he was not aware the circuit court could impose a total of 23 and one-half years of imprisonment.

In the alternative to plea withdrawal, Finley asked that the sentence be commuted to 19 and one-half years of imprisonment under State v. Taylor, 2013 WI 34, 347 Wis. 2d 30, 829 N.W.2d 482. The circuit court denied Finley's motion without an evidentiary hearing.

The Court of Appeals reversed and remanded. It concluded that Finley established a Bangert [State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986)] violation as a matter of law, and it remanded to allow the state the opportunity to prove that in spite of the misinformation provided at the plea hearing Finley nevertheless knew the maximum penalty he faced at the time he entered the plea.

The circuit court essentially followed the state's suggestion, concluding without making specific factual findings, that the state met its burden of establishing Finley knew the maximum penalty he faced at the time he entered the plea. However, the court also concluded that, under § 973.13, Stats., and Taylor, the proper remedy in the case, "in the interest of justice," was to commute the sentence "to the maximum represented to him at the time of [the plea hearing]."

Thus, the court ordered that Finley's judgment of conviction be amended to reflect a total sentence of 19 and one-half years of imprisonment, consisting of 14 and one-half years of initial confinement and five years of extended supervision.

The Court of Appeals noted that its opinion in Finley's prior appeal concluded Finley had established a Bangert violation as a matter of law, at least in the sense he made the requisite prima facie showing that he did not know or understand certain information that should have been provided at the plea hearing. It said the purpose for the remand ordered in the earlier appeal was to give the state an opportunity to show by clear and convincing evidence that Finley's plea was in fact entered knowingly, intelligently, and voluntarily, despite the circuit court's failure to advise Finley of the applicable maximum penalty.

The state argued it was not required to show that Finley knew the correct maximum penalty for the offense to which he entered a plea, and that it proved that Finley's plea was sufficiently knowing to meet the manifest injustice test because the sentence was subsequently commuted to the maximum Finley thought applied.

The Court of Appeals disagreed, saying even after "commuting" the sentence, the circuit court did not sentence Finley only to the 12 and one-half years of imprisonment maximum for the underlying offense of reckless endangerment as domestic abuse.

The court pointed out Finley's sentence was commuted not to "the amount authorized by law" or "the maximum term authorized by statute," but rather to the amount Finley misunderstood to be his maximum exposure based on errors surrounding his plea.

The state argues that the appropriate remedy is a reduction of Finley's sentence to the maximum penalty he was informed and believed he could receive. The state says it has never been authoritatively decided whether reduction of a sentence could be a proper remedy where a defendant was misinformed that the maximum penalty was lower than it really was. The state says several prior cases have suggested that sentence reduction is an appropriate remedy.

A decision in this case could clarify how the law applies to circumstances presented here. From Brown County.

2014AP2536-FT Democratic Party of Wisconsin v. Wis. Dept. of Justice
This case arises from a dispute between the state Department of Justice (DOJ) and the Democratic Party of Wisconsin (DPW) over an open records request.

The Supreme Court examines the application of the balancing test that may be used by records custodians to determine if the public interest in not releasing a record may outweigh a presumption of disclosure under the state's public records law, Wis. Stats. §§ 19.31-19.37.

Some background: Prior to the 2014 election for Wisconsin attorney general, the DPW made an open records request to the DOJ for materials "made at any training program by (then-attorney general candidate) Brad Schimel." In response, the DOJ identified, but declined to produce, two video recordings of presentations made by Schimel, who is now attorney general, during state prosecutors' education and training conferences: a video recording of a 2013 presentation discussing interacting with victims of sensitive crimes and a video recording of a 2009 presentation discussing prosecution of, and common defenses in, internet sexual predator cases.

The DOJ determined "that any legitimate public interest in disclosure of this information is outweighed by the public policies requiring that crime victims and their families be treated with 'fairness, dignity and respect for their privacy.'" The DOJ also asserted that because the 2013 video recording discusses litigation strategy, the strong public interest in the effective investigation and prosecution of crimes outweighed the public's interest in viewing the video recording. The DOJ declined to produce the 2009 video to preserve victim privacy and the ability to effectively investigate and prosecute crimes.

When the DOJ refused to disclose the video recordings, the DPW filed a § 19.37, Stats., petition for a writ of mandamus seeking to compel their production. The circuit court granted the writ of mandamus but stayed the effect of its order pending appeal.

The Court of Appeals affirmed, finding that the video recordings were records that are subject to Wisconsin's open records law, which it said presumes "complete public access" to public records. See John K. MacIver Inst. for Pub. Policy, Inc. v. Erpenbach, 2014 WI App 49, ¶16, 354 Wis. 2d 61, 848 N.W.2d 862).

With respect to the 2013 video recording, the Court of Appeals agreed with the circuit court's finding that the presentation took place in a large conference room with many people present. In his presentation, Schimel focused on a high-profile case from several years earlier and shared lessons learned in dealing with victims of sensitive crimes, tips for interacting with victims, and changes Schimel intended to make in his own practices. The appellate court said while Schimel provided a great deal of detail, he did not share any identifying information about the victims and information about the underlying crime was previously widely reported.

With respect to the 2009 video recording, the circuit court found that most, if not all, of the strategies Schimel discussed were already widely discussed in the public sphere.

The Court of Appeals noted that upon receipt of an open records request, a records custodian determines whether any statutory or common law exceptions to disclosure apply. If no exceptions apply, the custodian undertakes a balancing test to "weigh the competing interests involved and determine whether permitting inspection would result in harm to the public interest which outweighs the legislative policy recognizing the public interest in allowing inspection." The custodian must specify reasons for not disclosing the requested records.

The Court of Appeals went on to note that when resolving a challenge to the custodian's decision not to disclose via a writ of mandamus, the circuit court independently undertakes the balancing test and determines if the custodian's reasons for non-disclosure are sufficient. The party advocating for non-disclosure bears the burden to show that public interests favoring secrecy outweigh those favoring disclosure, and access to records may be denied only in an exceptional case.

DOJ asks the Supreme Court to confirm the public interest in nondisclosure to protect the integrity of law enforcement trainings and crime victims' privacy. It says in State ex rel. Richards v. Foust, 165 Wis. 2d 429, 433-37, 477 N.W.2d 608 (1991), the Supreme Court discussed a line of cases dating back to at least 1929, which support the general assertion that investigative files often are not subject to disclosure. The DOJ also says in Linzmeyer v. Forcey, 2002 WI 84, ¶30, 254 Wis. 2d 306, 646 N.W.2d 811, the Supreme Court discussed the "strong public interest in investigating and prosecuting criminal activity."

In addition, the DOJ says that the Linzmeyer court adopted as a framework certain considerations found in the federal Freedom of Information Act (FOIA), 5 U.S.C. § 552, pertaining to law enforcement records. The DOJ says FOIA exempts disclosure where production of the law enforcement records "would disclose techniques and procedures for law enforcement investigations or prosecution."

DOJ also says if a final ruling results in an order for disclosure, it may want the opportunity to redact information. Justice David T. Prosser did not participate. From Dane County.

2014AP304-CR State v. Weber
This drunken driving case examines whether a warrantless entry into the "curtilage" of a home (in this case an attached garage) may be justified by hot pursuit alone, or whether a warrantless entry must also be justified with other circumstances.

Some background: A police officer activated his squad's emergency lights and attempted to pull Richard L. Weber over for having a defective brake light on his vehicle. A few seconds later, Weber turned into his driveway and drove into his garage, which is attached to his house. The officer also turned into Weber's driveway, but stopped short of the garage. The officer got out of his squad car and saw Weber, still in the garage, walking up some steps to his house door. The officer told Weber he needed to speak to him, but Weber continued up the steps.

The officer entered the garage and again told Weber he needed to speak to him, but Weber still continued up the steps. When Weber reached the top of the steps and began opening the house door, the officer secured Weber's arm and prevented him from entering his house. During the encounter, the officer observed signs that Weber had been drinking, which ultimately led to his arrest.

Weber sought suppression of the evidence that was obtained after the officer's entry into the garage. After the trial court denied Weber's suppression motion, he pled no contest to one felony count of operating with a prohibited alcohol concentration.

Weber appealed, successfully arguing that the deputy made a warrantless entry into his home that should lead to suppression of evidence. Weber specifically argued: (1) exigent circumstances allow for warrantless entry when there is danger to life, risk of evidence destruction, or likelihood of escape, see State v. Smith, 131 Wis. 2d 220, 231, 388 N.W.2d 601 (1986); (2) an arrest made in "hot pursuit" is a type of circumstance that may qualify as an exigent circumstance, when measured against the time needed to obtain a warrant, id. at 229; (3) therefore, a hot pursuit does not always qualify as an exigent circumstance, but does so only if there is also present one of the above factors that makes it unsound to wait for a warrant.

In this case, Weber argued, a balancing of the deputy's need to enter quickly against the time needed to obtain a warrant shows that there was no exigent circumstance that justified the warrantless entry. Weber noted that there was no evidence of danger to life; that evidence of the offense he was being pursued for – a defective brake light – was not likely to be destroyed; and that flight was implausible for such a minor offense.

The state argues the warrantless entry was justified. Although there was no testimony that the deputy was actually attempting to arrest Weber for failing to stop his car in response to the officer's emergency lights, the state argued there was probable cause to arrest for that offense at the time of the deputy's entry into the garage, and therefore the deputy's entry was legal. The state also argued that probable cause existed to arrest Weber for resisting or obstructing an officer.

The state notes Wisconsin Stat. § 346.04(2t) states that "[n]o operator of a vehicle, after having received a visible or audible signal to stop his or her vehicle from a traffic officer or marked police vehicle, shall knowingly resist the traffic officer by failing to stop his or her vehicle as promptly as safety reasonably permits." A person who violates that provision "may be fined not more than $10,000 or imprisoned for not more than 9 months or both." Wis. Stat. § 346.17(2t). In addition, a person commits a Class A misdemeanor when he or she "knowingly resists or obstructs an officer while such officer is doing any act in an official capacity and with lawful authority[.]" Wis. Stat. § 946.41(1).

A decision by the Supreme Court could determine whether the deputy's "hot pursuit" of Weber for one or both of these jailable offenses constitutes a sufficient exigency to justify the deputy's warrantless entry into Weber's garage. From Wood County.

2014AP2376 Brenner v. National Casualty Co.
This case examines the rule of caveat emptor (let the buyer beware), and an exception to that rule, as expressed in Restatement (Second) of Torts §§ 352 and 353.

Some background: Russell Brenner was severely injured while he was working for Hunzinger Construction. He fell through a large hole or pit in the floor of a building owned by Milwaukee World Festival, Inc. while moving a large plywood panel that covered the hole.

Brenner and his wife filed suit, alleging negligence and safe-place statute claims against the following parties:

  • Milwaukee World Festival, Inc., as the owner of the building at the time of Brenner's fall, and its insurer National Casualty Company, (collectively "MWF");
  • Garland Brothers Joint Venture, as the former owner of the building; Garland Brothers, Inc., (GBI) as an agent of Garland Brothers Joint Venture; and their insurer Amerisure Mutual Insurance Company, (collectively "Garland Brothers"); and
  • Charter Manufacturing Co., as the former long-term tenant of the building, and its insurer Ace American Insurance Co. (collectively "Charter").

Before MWF acquired the property, Charter Manufacturing was a long-term tenant of the building under a lease with Garland Brothers. Charter had used the pit for its furnaces used to heat metal as part of a wire manufacturing process.

An agent of GBI assumed responsibility for negotiating the termination of Charter's lease. As part of the negotiations, GBI retained a consultant to inspect the building before Charter vacated it. Before surrendering the premises, Charter was asked to fill in the pit immediately below the holes in the floor where the heat treat furnaces had been located. Charter refused to do so. In November 2009, Charter was permitted to surrender the property without filling the pit, so long as the pit was left in a "clean and safe condition."

In late December 2009, GBI did a final walkthrough of the property with its experts and Charter representatives. GBI did not raise any more concerns about the pit.

After Charter vacated the building, Garland Brothers sold it to MWF in "'as-is, where-is' condition," and "'with all faults.'" MWF took possession of the property in May 2011. Prior to the purchase, and before Brenner was injured, MWF had performed numerous inspections and walkthroughs of the premises.

Garland Brothers and Charter filed motions for summary judgment on the grounds that they could not be liable for Brenner's injuries due to their relinquishment of the premises well before he was injured. The Brenners and MWF opposed the motions.

The trial court granted the motions for summary judgment. As relevant here, the trial court found that Restatement (Second) of Torts § 352 acted to bar the Brenners' negligence claim against Charter.

Following motions for summary judgment, the trial court dismissed the Brenners' negligence claim against Charter and Garland Brothers on the grounds that it was barred by the doctrine of caveat emptor, or "buyer beware," as expressed in Restatement (Second) of Torts § 352. The trial court reasoned that because Charter had already relinquished possession of the premises before MWF purchased the property and before Brenner was injured, § 352 applied to shift liability from Charter to the buyer, MWF.

MWF appealed Charter's dismissal from the lawsuit. MWF lost its case at the Court of Appeal and now asks the Supreme Court to review the following issues:

  • Should Wisconsin adopt the Restatement (Third) of Torts § 51 which supersedes the Restatement (Second) of Torts §§ 352 and 353?
  • Does the Restatement (Second) of Torts § 352 relieve former possessors of land, like Charter, from liability for hazards created at their direction?
  • Under the Restatement (Second) of Torts § 353, does the liability of a former possessor of land who concealed a hazardous condition it created continue until the current possessor has actual knowledge of the condition?

Justice Rebecca G. Bradley did not participate. From Milwaukee County.

2015AP366-CR State v. Stanley J. Maday, Jr.,
In this child sexual assault case, the Supreme Court examines the parameters of permissible testimony and whether defendant Stanley J. Maday's attorney was ineffective for failing to object to testimony from a social worker that the court considered to improperly vouch for the credibility of the alleged victim.

Some background: Maday was convicted on three counts of first-degree sexual assault of a child, in violation of WIS. STAT. § 948.02(1)(b) and (e) (2013-14). He was accused of touching a girl's breasts and vagina on several occasions between approximately June 2011 and November 2011.

At trial, in response to questions from defense counsel, the social worker had testified that she is trained to use a highly structured interview process with children, called the cognitive graphic interview, in order to avoid conducting leading interviews and to make answers more reliable.

On cross-examination, the prosecutor asked, "Was there any indication that [the alleged victim] was not being honest during her interview with you? [Social worker]: No.

On redirect examination, the social worker was asked only briefly to clarify an aspect of the oath given to the victim as part of the interview. She did not directly address coaching or honesty issues. A jury found Maday guilty.

Maday sought postconviction relief alleging his trial counsel was ineffective for failing to object to the social worker's testimony. Following a Machner hearing, [State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979)], the circuit court denied Maday's motion. Maday successfully appealed, arguing again that his trial counsel was ineffective for failing to object to the social worker's testimony, which he asserts constituted expert opinion testimony that the girl was telling the truth.

In reversing, the Court of Appeals noted that in State v. Krueger, 2008 WI App 162, ¶¶10-13, 314 Wis. 2d 605, 762 N.W.2d 114, the court reviewed case law regarding the admissibility of evidence bearing on the credibility of witnesses. In particular, that case addressed case law regarding expert testimony involving the credibility of alleged child sexual assault victims. See, e.g., State v. Haseltine, 120 Wis. 2d 92, 96, 352 N.W.2d 673 (Ct. App. 1984) (holding "[n]o witness, expert or otherwise, should be permitted to give an opinion that another mentally and physically competent witness is telling the truth"); State v. Jensen, 147 Wis. 2d 240, 256, 432 N.W.2d 913 (1988) (holding that although a witness may not testify that a complainant is telling the truth, a witness may testify about the consistency of a complainant's behavior with the behavior of victims of the same crime); State v. Romero, 147 Wis. 2d 264, 277-78, 432 N.W.2d 899 (1988) (holding that a witness may not give an opinion that a complainant is truthful in his or her accusations).

The state contends that the factual situation is significantly different from those presented in previous cases, thereby making more distinct the "nuanced line between permissible testimony describing objective behavioral manifestations of a child's credibility and impermissible testimony expressing subjective beliefs about the credibility of the child."

A decision by the Supreme Court could clarify the law on these issues. From Columbia County.

2015AP179 Lands' End, Inc. v. City of Dodgeville
This bypass of the Court of Appeals arises from lengthy litigation between Lands' End Inc. and the city of Dodgeville over the fair market value, and resulting tax assessments, of the parcels upon which its headquarters is located.

Some background: In September 2013, in appeal no. 2010AP1185, the Court of Appeals remanded to the trial court "with directions to enter judgment in favor of Lands' End in the amount of $724,293.68, plus statutory interest and any other interest or costs to which Lands' End may be entitled." Following remand, Lands' End filed a motion for entry of judgment, seeking an award of interest at the rate of 12 percent per year from July 1, 2009, the date on which Lands' End served an offer of settlement pursuant to § 807.01(4), until the amount of the judgment was paid in full.

Section 807.01(4), as it existed when the offer of settlement was made, provided that if "the party recovers a judgment which is greater than or equal to the amount specified in the offer of settlement, the party is entitled to interest at the annual rate of 12% on the amount recovered from the date of the offer of settlement until the amount is paid."

In 2011, the legislature enacted 2011 Wis. Act 69, which amended § 807.01(4), as well as § 814.04(4), relating to interest from the time of verdict, decision, or report until judgment, and § 815.05(8), which provides that "every execution upon a judgment for the recovery of money shall direct the collection of [a specified annual interest rate]."

Act 69 changed the annual interest rate in each of the above statutes from "an annual rate of 12%" to "an annual rate equal to 1 percent plus the prime rate in effect on Jan. 1 of the year in which the judgment is entered if the judgment is entered on or before June 30 of that year or in effect on July 1 of the year in which the judgment is entered if the judgment is entered after June 30 of the that year, as reported by the Federal Reserve Board in Federal Reserve Statistical Release H.15. . . ."

The city argued that the amended version of the statute, calling for interest at the prime rate plus 1 percent, applied because the amended version of the statute was in effect on the date the judgment was entered. Lands' End argued it was entitled to interest at the rate of 12 percent under the old version of the statute.

On Oct. 13, 2014, the circuit court issued a decision providing for interest at the prime rate plus 1 percent.

After the circuit court in this case issued its decision, the Court of Appeals issued a decision in Johnson v. Cintas Corp. No. 2, 2015 WI App 14, 360 Wis. 2d 350, 860 N.W.2d 515, holding that the amendment to § 807.01(4) was substantive and that retroactive application would be unconstitutional. This court granted a petition for review in Johnson, which was later voluntarily dismissed.

Lands' End argues that the Court of Appeals' decision in Johnson, held that the applicable interest rate under § 807.01(4) is 12 percent, the rate that was in effect the date an offer of settlement was served, is squarely on point.

As a result, Lands' End argues that the trial court's decision regarding interest should be reversed, and the matter should be remanded with directions to the trial court to enter an amended judgment awarding interest at the rate of 12 percent per year pursuant to the old version of the statute.

The city argues that the plain language of § 807.01(4) requires that interest be awarded at 1 percent plus the prime rate in effect when judgment is entered. It says despite this clear statutory language, the Court of Appeals in Johnson held that the applicable interest rate under the statute is the rate in effect on the date the offer of settlement was made. The city says in effect the Court of Appeals in Johnson rewrote the statute and usurped the role of the legislature.

A decision by the Supreme Court is expected to resolve the apparent conflict between the statutory language and the Court of Appeals' Johnson decision. Justice Rebecca G. Bradley did not participate. From Iowa County.

2015AP146 Wisconsin Carry, Inc. v. City of Madison
This case examines provisions of the state's concealed carry law, Wis. Stat. § 66.0409. The Supreme Court reviews whether the statute pre-empts an agency of a local unit of government from regulating the carrying of firearms, and whether a local unit of government may enact an ordinance purporting to bestow such authority on an agency.

Some background: The agency involved here is the city of Madison's Transit and Parking Commission, which is the administrator of Madison Metro, the city's bus service; the local unit of government is the city of Madison.

The commission established the "bus rule" pursuant to a city ordinance that authorizes the commission to establish "rules and procedures" relating to transit. See MADISON, WIS., GENERAL ORDINANCES § 3.14(4)(h). The bus rule prohibits a person from traveling in a city bus while armed with a weapon of any kind.

Wisconsin Carry, a gun rights advocacy group, filed a petition for declaratory relief, contending that this rule is preempted by the concealed-carry statute, § 66.0409, which provides:

[With exceptions not relevant here], no political subdivision may enact an ordinance or adopt a resolution that regulates the sale, purchase, purchase delay, transfer, ownership, use, keeping, possession, bearing, transportation, licensing, permitting, registration or taxation of any firearm or part of a firearm, including ammunition and reloader components, unless the ordinance or resolution is the same as or similar to, and no more stringent than, a state statute. Wis. Stat. § 66.0409(2).

The statute defines "political subdivision" as a "city, village, town or county." Wis. Stat. § 66.0409(1)(b).

The city moved to dismiss Wisconsin Carry's petition on the grounds that the commission is not a "political subdivision," and the rule is not an "ordinance" or "resolution," as those terms are used in the statute. The circuit court agreed.

The Court of Appeals affirmed, leading to Wisconsin Carry's appeal to the Supreme Court. The Court of Appeals agreed with the circuit court and with the city that the statute plainly preempts only "ordinances" and "resolutions." The bus rule is not an "ordinance" or "resolution" under case law providing generally accepted meanings for those terms, according to the Court of Appeals.

The Court of Appeals presumed that the Legislature was aware of these generally accepted definitions when it enacted § 66.0409. See Tydrich v. Bomkamp, 207 Wis. 2d 632, 638-39, 558 N.W.2d 692 (Ct. App. 1996) (court presumed that Legislature was aware of existing case law on damages definition and concluded that Legislature accepted that definition by not specifying a different definition).

The Court of Appeals determined that "judicial restraint dictates that courts 'assume that the legislature's intent is expressed in the statutory language' chosen by the legislature." See State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110. "It is the enacted law, not the unenacted intent, that is binding ...." Id. (emphasis added).

Wisconsin Carry complains that the Court of Appeals focused almost entirely on the statute's reference to ordinances and resolutions. The gist of the Court of Appeals' decision, says Wisconsin Carry, is that the Transit and Parking Commission has powers that the Common Council does not.

Wisconsin Carry maintains that the legislature intended to leave municipalities no role in regulating the carrying of firearms, at least not beyond regulations that are no more restrictive than state law.

A decision by the Supreme Court is expected to clarify whether the commission's rule prohibiting a person from traveling in a city bus with a weapon is preempted or not by the concealed carry statute. From Dane County.

2014AP2947 Regency West Apartments LLC v. City of Racine
This case involves a property tax assessment challenge in the city of Racine. The Supreme Court examines law related to the appropriate methodology for assessing low-income housing developments.

Some background: Regency West is the developer and owner of nine eight-family apartment buildings, each with a community center, manager's office, community room and dedicated garage space.

The apartments were constructed in 2010 and 2011 as Section 42 housing. Section 42 refers to that section of the tax code that provides tax credits to investors who build affordable housing. The apartments were fully leased as of Feb. 1, 2012.

The city assessed the property at $4,425,000 in 2012 and at $4,169,000 in 2013. Regency West filed a de novo refund action in the circuit court after the city denied Regency West's claims of excessive assessment.

Regency West's expert testified that under an "income approach," the property should have been appraised at $2,700,000 and $2,730,000 for 2012 and 2013, respectively. The city's experts, who used a "sales comparison approach," an "income approach," and a "cost approach," determined that Regency West had not been excessively appraised.

At trial, both sides presented expert testimony supporting their positons.

Regency West presented expert testimony from Scott McLaughlin, who specialized in appraising properties under Section 42 and Section 8, another low-income housing program. McLaughlin criticized the city's assessments and retrospectively appraised the property using an income approach.

The city presented expert testimony from the assessor who performed the valuation of the property, Janet Scites, and its chief assessor, Ray Anderson, who reviewed and approved her work. The city presented expert testimony from its assessor's office and two outside appraisers, Dan Furdek and Peter Weissenfluh, who had spent most of their careers in the Milwaukee assessor's office. Furdek and Weissenfluh retrospectively appraised the property using several different methods of valuation (sales comparison approach, income approach, and cost approach, which seeks to measure the cost to replace the property). They concluded that the City's 2012 and 2013 assessments were not excessive.

After post-trial briefing, the circuit court rendered a decision acknowledging the subjectivity of the expert witnesses' opinions and the importance of credibility. Ultimately, the circuit court found the city's expert witnesses more credible than Regency West's.

Beyond the question of credibility, the circuit court concluded that the City's assessments complied with the requirements of the Wisconsin Property Assessment Manual and Wisconsin law and were therefore entitled to a presumption of correctness. By contrast, the court found errors in the approach of Regency West's expert witness, McLaughlin. Accordingly, it dismissed Regency West's complaint.

Regency West appealed, unsuccessfully.

Among other things, the Court of Appeals wrote that it would defer to the fact finder's drawing of inferences and weighing of expert witnesses' opinions. The Court of Appeals held that it was satisfied that the circuit court properly concluded that the assessments were not excessive and that the presumption of correctness had not been overcome.

In taking the case to the Supreme Court, Regency West presents the following issues:

  • Do sales of HUD § 8 rent subsidized properties constitute "reasonably comparable" sales of properties with "similar restrictions" for purposes of applying the comparable sales approach to assess an IRC § 42 low income housing tax credit property?
  • Is it appropriate to rely solely upon the income approach in valuing subsidized housing projects for property tax assessment purposes?

From Racine 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:

2014AP2716-CR State v. Mastro - Justices Shirley S. Abrahamson and Ann Walsh Bradley dissent.

2014AP669-CR State v. Gatlin - Justices Shirley S. Abrahamson and Ann Walsh Bradley dissent.
2014AP963-CR State v. Ash 2015AP851 Diggs v. DOC
2016AP330 De La Fuente v. Wis. Government Accountability Board

Fond du Lac
2014AP2301-CR State v. Johnson

2015AP1862-W Henderson v. Jefferson Co. Cir. Ct.

2014AP433-CR State v. Gage

2015AP1335-CR State v. Stokes

La Crosse
2015AP252 La Crosse County HSD v C.J.T.

2014AP2275-CR State v. Guite

2013AP956-CR State v. Washington
2014AP354-CR State v. Elverman
2014AP1564 State v. Gibson
2014AP1668 State v. Sundermeyer - Justice Rebecca G. Bradley did not participate.
2014AP1745-CRNM State v. Williams
2014AP1980-CR State v. Gant - Chief Justice Patience Drake Roggensack and Justice Rebecca G. Bradley did not participate. Justice Shirley S. Abrahamson dissents.
2014AP2053-54-CR State v. Thames
2014AP2449-CR State v. Brito
2014AP2534-CR State v. Beal - Justice Rebecca G. Bradley did not participate.
2014AP2591-CR State v. Foster
2014AP2822-CR State v. Pehowski - Justice Rebecca G. Bradley did not participate.
2014AP2942 Przytarski v. Vallejos
2014AP2993 Kramschuster v. Przytarski
2015AP45-CR State v. Quiles-Guzman - Justice Rebecca G. Bradley did not participate.
2015AP258-CR State v. Nelson
2015AP389-CR State v. Davis - Justice Rebecca G. Bradley did not participate.
2015AP1930-W Simpson v. Meisner - Chief Justice Patience Drake Roggensack did not participate.
2015AP2470-W Ferguson v. Cir. Ct. Milwaukee Co.

2015AP331-CR State v. Klinkenberg

2014AP2155 Orlando Residence, Ltd. v. Nelson
2015AP2476-W McCormick v. Haines

2015AP2225-W Schmitt v. Richland County

St. Croix
2014AP2492 Frazier v. CJB Rentals

Tom Sheehan
Court Information Officer
(608) 261-6640

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