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Wisconsin Supreme Court accepts seven new cases

Madison, Wisconsin - June 30, 2016

The Wisconsin Supreme Court has voted to accept seven 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 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.

2013AP2882 Melchert v. Pro Electric Contractors
Supreme Court case type: Petition for Review
Court of Appeals: District II
Circuit Court: Waukesha County, Judge James R. Kieffer, affirmed
Long caption: Dr. Randall Melchert, Happy Hobby, Inc. and The Warren V. Jones and Joyce M. Jones Revocable Living Trust (Plaintiffs-Appellants-PETITIONERS) v.
Pro Electric Contractors and Secura Insurance, A Mutual Company (Defendants-Respondents-RESPONDENTS)

Issues presented:

  • Whether Wis. Stat. § 893.80(4) immunizes a government or any of its agents or employees from liability for causing property damage through negligent construction work.
  • Does Wis. Stat. § 182.0175(2), the Diggers Hotline statute, create a ministerial duty? (The Court ordered the parties to address this issue upon granting review.)

Some background: Dr. Randall Melchert sought damages due to flooding allegedly caused when Pro Electric damaged a sewer lateral while installing a traffic light as part of a contract with the state Department of Transportation (DOT).

The Court of Appeals agreed with the circuit court that Pro Electric was acting as an agent of the DOT and was implementing a discretionary governmental decision, which thereby rendered Pro Electric immune from suit under § 893.80(4), Stats.

Melchert conceded that Pro Electric was a governmental agent for the specific auger activities that severed the sewer lateral, but Melchert argued certain discrete conduct, such as the alleged failure to identify and repair the severed sewer lateral prior to backfilling, fell outside the shield of immunity. The Court of Appeals said the summary judgment record failed to support a causal connection between Melchert’s specific allegations of negligence and the alleged injury, regardless of the applicability of § 893.80(4).

Pro Electric says the Wisconsin Supreme Court previously established that where a third-party’s claim against a governmental contractor is based on the allegation that the contractor negligently performed its work under a contract with the governmental entity, the contractor must prove both that the contractor meets the definition of “agent” under § 893.80(4) and that the contractor’s act is one for which immunity is available. Pro Electric says this is the precise issue that the trial court and the Court of Appeals both addressed in this case.

Justices Shirley S. Abrahamson concurs. Justice Annette Kingsland Ziegler separately concurs, and Justice Ann Walsh Bradley joins that concurrence.

2014AP2360 Teague v. Schimel
Supreme Court case type: Petition for Review
Court of Appeals: District IV
Circuit Court: Dane County, Judge Juan B. Colas, affirmed
Long caption: Dennis A. Teague, Plaintiff-Appellant-PETITIONER, Linda Colvin and Curtis Williams, Intervening Plaintiffs-Appellants-PETITIONERS, v. J.B. Van Hollen, Walt Neverman, Dennis Fortunato and Brian O’Keefe, Defendants-Respondents-RESPONDENTS.

Issues presented:

  • Does Wis. Stat. § 19.356 preclude petitioners from seeking a declaratory judgment that the state Department of Justice’s (DOJ) alias name policy violates Wisconsin’s public records law?
  • Does Wis. Stat. § 19.70 require the DOJ to correct or supplement the criminal history reports it produces in response to name-based requests about innocent subjects once those subjects demonstrate to DOJ they have no criminal history?
  • Does the DOJ’s alias name policy violate equal protection by discriminating irrationally against one class of “innocent” persons?
  • Does the DOJ’s alias name policy violate substantive due process by knowingly identifying innocent people with criminal records that are not their own?
  • Is the DOJ’s criminal history database sufficiently like other government databases that courts must apply the constitutional principles developed in those cases?

Some background: The state Department of Justice (DOJ) maintains a criminal history database through its crime information bureau that may be searched by the public for a fee.

The database contains approximately 1.3 million criminal history records based on 1.3 million sets of fingerprints. Each record contains a “master” name, which is the name contained in the first submission to DOJ about an individual as identified by fingerprints.

An individual may be associated in the database with multiple master or alias names or multiple birthdates or both, because individuals sometimes use various names or birthdates, have legal name changes, and because typographical errors occur.

If the search produces a match or near match to a name contained in one or more records, DOJ responds with a report. The report begins by displaying the information submitted by the requester, followed by explanatory material, followed by the criminal record that has been identified as a match or near match and a photo of the person identified by fingerprints. The report includes explanations of the method by which names are associated with fingerprints and a notice that the Crime Information Bureau (CIB) cannot guarantee that the record returned “pertains to the person in whom you are interested.”

Plaintiffs Dennis Teague, Linda Colvin, and Curtis Williams argue that the Wisconsin DOJ knowingly propagates inaccurate information about them each time it releases a Wisconsin criminal history report that refers to them.

Teague’s claims arise from concern that when a member of the public submits a name-based search request using Teague’s name and birthdate, DOJ would release in response a report containing the criminal history record of a man named Anthony Terrell Parker. The report lists Teague’s name as an alias for Parker’s name because Parker has given Teague’s name, together with a date matching his date of birth, to authorities as an alias. Teague argues that DOJ is obligated to provide requesters with an explanation to avoid allowing requesters to falsely suspect that Teague might have the criminal history referred to in the report.

Teague submitted fingerprints to DOJ and received an “innocence letter” in March 2009 under a process established by DOJ to clarify the record. Innocence letters indicate that the recipient has no criminal history as of that date, and that the individual should not be confused with another individual who does have criminal history reflected in the database. DOJ keeps the innocence letters it issues on file but does not reference the existence of the letters in the database or otherwise make use of the letters in responding to criminal history requests.

Teague alleges that state officials, contrary to the Wisconsin public records law, failed to or incorrectly performed the balancing test for release of records before releasing criminal history referring to Teague. He argues that state officials violated the Open Records law by failing to either correct the records or allow the filing of a concise written statement each time state officials identify Parker’s information as being associated with Teague.

The circuit court dismissed the plaintiffs’ statutory claims and equal protection challenge on summary judgment. The court held a trial on the remaining constitutional claims, after which it dismissed the remainder of the case.

The Court of Appeals affirmed, concluding that the plaintiffs failed to demonstrate any statutory or constitutional violations: “When it comes to challenges to decisions by authorities under the public records law to release records, as opposed to decisions by authorities to withhold records, the Legislature has precluded judicial review except in defined circumstances not presented here.”

The state points out that the criminal history database was created by statute, and DOJ provides a challenge process. The state says the plaintiffs are mistaken when they claim that the existence of no history letters means that DOJ somehow “knows” who a criminal history search is about. The state says to the contrary, when someone submits a name-based search, DOJ does not know who the search is about. The state says the no history letters provide people like the plaintiffs with a tool, which the plaintiffs may use if they wish. The state says DOJ goes to great lengths to inform a reader that the reports come with limits and that follow-up inquiries should, and in the employment context, must, be made.

2015AP202-CR State v. Denny
Supreme Court case type: Petition for Review
Court of Appeals: District II
Circuit Court: Ozaukee County, Judge Joseph W. Violand, reversed
Long caption: State of Wisconsin, Plaintiff-Respondent-PETITIONER, v. Jeffrey C. Denny, Defendant-Appellant-RESPONDENT.

Issues presented:

  • Did the Court of Appeals misapply State v. Moran, 2005 WI 115, 284 Wis. 2d 24, 700 N.W.2d 884, when it held that a defendant seeking post-conviction DNA testing of “relevant” evidence under Wis. Stat. § 974.07(2) need not demonstrate that the physical evidence “contains biological material or on which there is biological material” as provided under subparagraph § 974.07(6)(a)2.?
  • In reviewing a motion for DNA testing at state expense under Wis. Stat. § 974.07(7)(a), must a circuit court always assume that a DNA test result will be exculpatory?
  • In assessing whether it is “reasonably probable” that a defendant would not have been convicted if exculpatory DNA results had been available, should a circuit court apply a newly discovered evidence standard?
  • Did the circuit court erroneously exercise its discretion under Wis. Stat. § 974.07(7)(a) when it found that the jury would have convicted Jeffrey C. Denny even if exculpatory DNA results were present?

Some background: The Court of Appeals’ reversed a circuit court order denying Jeffrey C. Denny’s § 974.07, Stats., motion to test certain items at private or public expense for the presence of deoxyribonucleic acid (DNA). </>

A jury found Jeffrey C. Denny and his brother, Kent Denny, both guilty of first-degree murder as party to a crime for killing Christopher Mohr in 1982. Both men were sentenced to life in prison. Mohr had suffered blunt force trauma to the head and sustained over 50 stab wounds. His clothes were soaked in blood, as were many objects found around the crime scene.

Jeffrey appealed. The Court of Appeals affirmed. A habeas petition filed in federal court was dismissed in 1998. The 7th Circuit affirmed. In May of 2014, Jeffrey moved to have certain evidence recovered from the crime scene tested for DNA. He identified the following items for testing: (1) pieces of a bong pipe, (2) hairs removed from Mohr’s hands, (3) stray hairs found on Mohr’s body, (4) the yellow hand towel, (5) the gloves found near Mohr, (6) the bloody hat found near Mohr, (7) Mohr’s bloody clothing, (8) blood on the metal chair found near Mohr’s head, (9) the glass cup found near Mohr, (10) the lighter that was under Mohr’s right shoulder, (11) the screens found on Mohr’s back and clothing, (12) the two facial breathing masks, and (13) Mohr’s hair.

Jeffrey argued that this evidence was relevant to the investigation or prosecution that resulted in his conviction; that it was in the possession of the state; and that it either had not been previously subjected to forensic DNA testing or, if it had been previously tested, it may now be subjected to another test using a scientific technique that was not available or not utilized at the time of the previous testing and that provides a reasonable likelihood of more accurate and probative results.

Jeffrey also argued it was “reasonably probable” that he would not have been prosecuted or convicted if “exculpatory DNA results had been available before” the prosecution or conviction. Jeffrey argued he was entitled to have the items tested at the public’s expense or, at the very least, at private expense.

The circuit court denied the motion. It concluded the evidence requested for testing did not relate to any of the evidence presented against Jeffrey at trial, because the evidence that resulted in the conviction was the many inculpatory statements Jeffrey and Kent had made to others. The trial court also noted that Jeffrey had been convicted as a party to the crime so even if DNA evidence established that another person was involved in the crime, it would not change the evidence that Jeffrey had also participated in the murder as a party to the crime.

The circuit court said the purpose of § 974.07 was to exonerate the innocent and not to show that someone else was involved in a murder. The court also concluded that the results would not exculpate Jeffrey but at most would show that others, in addition to Jeffrey, might have been involved. The Court of Appeals reversed and remanded.

The appellate court noted that in Moran, 284 Wis. 2d 24, ¶¶3, 42 the Wisconsin Supreme Court interpreted the statute to permit DNA testing of evidence at either private or public expense. The statute gives a movant, at his or her own expense, the right to conduct DNA testing of “physical evidence that is in the actual or constructive possession of a government agency and that contains biological material or on which there is biological material” if the movant shows that the evidence is relevant to the investigation or prosecution that resulted in the conviction; the evidence is in the actual or constructive possession of a government agency; and the evidence has not been subject to forensic DNA testing or, if it was tested, may now be subjected to another test that was not available or not utilized at the time of the previous testing and that provides a reasonable likelihood of more accurate and probative results.

The Court of Appeals concluded Jeffrey showed that the evidence met the conditions under § 974.07(2), permitting him to test the evidence at his own expense. The appellate court went on to find that it was reasonably probable that Jeffrey would not have been convicted if exculpatory results had been available.

The state says the Court of Appeals dismissed its concerns that “assumed exculpatory evidence” will significantly expand post-conviction testing to any item of evidence that could conceivably contain DNA. The state says at the motion hearing, Jeffrey offered no evidence that supported his speculative theory that an analyst could recover touch DNA from physical evidence 30 years after Mohr’s murder.

2015AP1152 Voces de la Frontera, Inc. v. Clark
Supreme Court case type: Petition for Review
Court of Appeals: District I
Circuit Court: Milwaukee County, Judge David L Borowski affirmed
Long caption: Voces De La Frontera, Inc. (Voces) and Christine Neuman Ortiz, Petitioners-Respondents-RESPONDENTS, v. David A. Clarke, Jr., Respondent-Petitioner-Appellant-PETITIONERS

Issues presented:

  • Does the Wisconsin Open Records Law require the records custodian of a local law enforcement agency to produce federal immigration detainer hold documents (I-247s) received from U.S. Immigration and Customs Enforcement (ICE), despite the specific prohibition contained in 8 C.F.R. § 236.6?
  • In the alternative, does the balancing test set forth under the Wisconsin Open Records Law weigh in favor of the non-production of these same federal immigration detainer hold documents received by a local law enforcement agency from Immigration and Customs Enforcement (ICE)?

Some background: On Feb. 5, 2015, Voces de la Frontera, Inc. submitted an open records request to Milwaukee County Sheriff David A. Clarke Jr. for copies of all I-247 forms he had received from ICE since November of 2014. On April 2, 2015, Clarke provided redacted copies of 12 I-247 forms. Records custodian Cpt. Catherine Trimboli redacted subject ID, event number, file number, nationality, and a series of boxes pertaining to immigration status.

On April 7, 2015, Clarke produced revised redacted forms, this time disclosing the nationality of the detainees. Voces filed a writ of mandamus in Milwaukee County Circuit Court seeking full disclosure of the redacted items under Wisconsin's open records law. The circuit court held a hearing on May 6, 2015 at which Trimboli testified she determined that the I-247 forms were records, and none of the statutory exceptions to the disclosure of the forms applied. She said she understood that she needed to conduct a balancing test and that she deferred to ICE to make the determination on whether and what to redact.

On June 3, 2015, the circuit court granted Voces' writ, noting Wisconsin's "long history of favoring openness in government, . . . ." The court noted it was the sheriff's burden to show that the public interest favoring redaction outweighed disclosure, and the court found "there was never a very good reason given as to why that information should be redacted other than ICE . . . believes it should be redacted."

The Court of Appeals affirmed. The appellate court said from the plain language of both the I-247 form itself and 8 C.F.R. § 287.7, it was clear that DHS merely sought custody with a "request," not an order, for a 48-hour hold after the alien was to be released from state custody. It said this conclusion was also supported by the fact that 8 C.F.R. § 287.7(e) makes clear on its face that the detainer itself is only a request. It said the statute provides, "No detainer issued as a result of a determination made under this chapter I shall incur any fiscal obligation on the part of the Department, until actual assumption of custody by the Department[.]" 8 C.F.R. § 287.7(e).

Clarke successfully sought an emergency stay from the Wisconsin Supreme Court while he petitioned for review. Clarke argues that the forms were protected from disclosure because information about detainees who are being held for the federal government is specifically exempt from disclosure under 8 C.F.R. § 236.6, and principles of the Freedom of Information Act (FOIA).

Clarke says the court of appeals "misconstrued and misapplied federal regulation 8 C.F.R. § 236.6 and the federal Freedom of Information Act (FOIA) to Wisconsin's Open Records law." He argues because the documents at issue were federal documents that contained both law enforcement information and sensitive and confidential information relating to immigration detainees, principles contained both in Wisconsin's open records law and the federal FOIA supported the conclusion that the balance should be struck in favor of non-production.

According to Clarke, the language in the regulation is clear that it applies to inmates being detained in state, local, or private facilities on behalf of the federal government and there is no need for actual federal custody.

Voces contends the court of appeals correctly held that only those federal laws that specifically exempt or require the redacted information to be withheld from public access are passed through by virtue of §§ 19.36(1) and (2) as exceptions to the open records mandate. It says by its explicit terms, 8 C.F.R. § 236.6 does not apply to information about prisoners who are not actually in custody of the United States.

2013AP950 State v. Talley
Supreme Court case type: Petition for Review
Court of Appeals: District IV
Circuit Court: Dane County, Judge Sarah B. O’Brien, affirmed
Long caption: In re the commitment of Thornon F. Talley: State of Wisconsin, Petitioner-Respondent, v. Thornon F. Talley, Respondent-Appellant-PETITIONER

Issues presented:

  • Was the petitioner entitled to an evidentiary hearing on his petition for discharge from Chapter 980 commitment which included information that the Petitioner had terminated sexual acting out and where a psychologist reported improvement in an important area of functioning?
  • Should this case be remanded to the circuit court for a review that meets the requirements of Wis. Stat. § 980.09(2), namely, that the circuit court review all previous evaluations of a Chapter 980 Respondent?

Some background: Thornon F. Talley was found to be a sexually violent person and committed under Wis. Stat. Ch. 980 in 2005. In both 2011 and 2012 he petitioned for discharge, based in part on a report from psychologist Richard Elwood. Elwood’s 2011 report opined that Talley did not meet the criteria for commitment as a sexually violent person. However, it indicated that he had not reduced his risk in the area of social and emotional functioning. The report indicated that Talley tended to isolate himself at the Sand Ridge Secure Treatment Center, although he did socialize or correspond with some members of his family. Elwood’s 2011 report also noted that in the previous six months Talley had received four behavior disposition reports for failure to follow rules, disrespect, failure to follow staff directives, disruptive behavior, and sexual contact, as well as six warnings for minor incidents.

Talley was granted an evidentiary hearing on his 2011 petition. The jury determined that Talley continued to meet the Ch. 980 commitment criteria, and the circuit court entered an order continuing his commitment. The Court of Appeals affirmed, focusing on whether Wis. Stat. § 980.09(3) was facially unconstitutional as a denial of due process because it uses the clear and convincing standard for discharge petitions, rather than the beyond a reasonable doubt standard used for initial commitment proceedings. State v. Talley, 2015 WI App 4, 359 Wis. 2d 522, 859 N.W.2d 155. The Supreme Court denied Talley’s subsequent petition for review.

Talley’s next discharge petition, filed in 2012, contained the same diagnosis, actuarial risk assessment, and conclusions that had been found in his 2011 report. The 2012 report indicated, however, that there had been some change in the area of self regulation/lifestyle instability because there had been no sexual misconduct reports in the time period it covered. The reported also noted some “recent progress” in the area of social and emotional functioning due to Talley self-reporting an increase in social interaction. That petition was denied by the circuit court without an evidentiary hearing.

The Court of Appeals affirmed, noting that under Wis. Stat. § 980.09(1) a circuit court “shall deny” a discharge petition without holding an evidentiary hearing unless the petition alleges facts that would allow a jury to conclude that the committed person’s condition had changed since the most recent order denying a discharge petition or since the initial commitment, such that the jury could properly conclude that the person no longer met the criteria for commitment under Ch. 980. The Court of Appeals continued: “If the petition repeats only the same evidence presented in support of previously unsuccessful discharge petitions, the petition must be summarily denied. See State v. Kruse, 2006 WI App 179, ¶¶34-37, 42, 296 Wis. 2d 130, 722 N.W.2d 742.”

Although the Court of Appeals acknowledged the lack of sexual misconduct reports in the 2012 report, it concluded that was not a “significant change” that warranted an evidentiary hearing on Talley’s 2012 discharge petition.

Talley contends that the Supreme Court needs to clarify whether the standard is “any” new fact that underlies the new expert opinion or whether the new fact must represent a “significant change.” He indicates that there is a conflict between State v. Combs, 2006 WI 137, ¶¶1, 295 Wis. 2d 457, 720 N.W.2d 684 and the Court of Appeals’ decision in his case.

Talley also says the Supreme Court should provide guidance on when a Court of Appeals may conduct its own paper review of the discharge petition and when it should remand the case to the circuit court (along with the necessary portions of the record, such as prior reports and testimony) so that the circuit court can conduct the paper review.

2014AP2637 Redmond v. Foster
Supreme Court case type: Certification
Court of Appeals: District II
Circuit Court: Sheboygan County, Judge L. Edward Stengel
Long caption: State of Wisconsin ex rel. Antjuan Redmond, Petitioner-Appellant, v. Brian Foster, Warden, Kettle Moraine Correctional Institution, Respondent-Respondent.

Issue presented: Whether an offender whose parole and extended supervision was revoked after a revocation hearing has an adequate remedy other than a writ of habeas corpus to pursue a claim that the attorney who represented him during the hearing rendered constitutionally ineffective assistance. Specifically, must the offender raise a claim of ineffective assistance of revocation counsel in a motion to the Division of Hearings and Appeals (DHA) in the Department of Administration.

Some background: The state charged Antjuan Redmond with two counts of burglary in violation of Wis. Stat. § 943.10(1m)(a). He was convicted and sentenced to two years of initial confinement followed by three years of extended supervision on one count and, on the other count, sentence was withheld and he received five years of probation. Subsequently, while on probation and extended supervision, Redmond allegedly battered a pregnant woman and an eight-year-old boy. The Department of Corrections (DOC) initiated revocation proceedings against Redmond for this incident as well as for several other alleged violations.

Following a hearing, the administrative law judge (ALJ) found that Redmond had battered the woman and child, and, as a result of that violation, as well as others, Redmond had violated his probation and extended supervision. The ALJ revoked Redmond’s probation and extended supervision. Redmond appealed to the DHA, and the administrator sustained the ALJ’s determination. Redmond did not appeal the DHA’s determination.

Redmond then requested a new revocation hearing before the DHA based on newly discovered evidence. Redmond did not claim that revocation counsel was ineffective. The DHA denied the request, concluding that the evidence was not new. Redmond did not appeal that decision.

Nearly 20 months after revocation was sustained by the DHA, Redmond filed a habeas petition with the trial court based on counsel’s alleged ineffective assistance at the revocation hearing. The State moved to dismiss the petition, arguing that while the petition was meritless, the trial court did not need to reach the merits because Redmond had another adequate remedy available other than a habeas petition by which to pursue his claim. The trial court agreed and dismissed the petition, both on the procedure and the merits of Redmond’s ineffective assistance claim.

Redmond appealed, resulting in this certification. Redmond challenges the trial court’s dismissal of his habeas petition on the ground that he had another adequate remedy. The state counters that Redmond had, and may still have, an otherwise adequate remedy in the law—a motion to reopen his revocation proceeding based on alleged ineffective assistance of revocation counsel. The state also argues that, no matter the procedure, Redmond could not establish ineffective assistance.

Redmond argued in the Court of Appeals that a writ of habeas corpus is the only remedy available for a challenge to revocation counsel’s effectiveness under State ex rel. Vanderbeke v. Endicott, 210 Wis. 2d at 523, and State v. Ramey, 121 Wis. 2d 177, 182, 359 N.W.2d 402 (Ct. App. 1984). In response, the state argued that these cases are not binding, given the Court of Appeals’ subsequent decision in State ex rel. Booker v. Schwarz, 2004 WI App 50, 270 Wis. 2d 745, 678 N.W.2d 361, which created a procedure by which an offender may move the DHA to reopen a revocation hearing based on newly discovered evidence. Redmond and the state present differing arguments as to the effect of these cases, among others, on this case.

A decision by the Supreme Court is expected to clarify the proper mechanism for an offender to bring a claim alleging ineffective assistance of revocation counsel. The Court of Appeals notes that ALJs preside over approximately 9,000 revocation hearings each year, and in 2014 alone, 4,841 offenders had their supervision revoked.

2016AP923-W Universal Processing Services v. Circuit Court of Milw.
Supreme Court case type: Petition for Supervisory Writ
Court of Appeals: District I
Circuit Court: Milwaukee County, Judge John J. DiMotto
Long caption: State of Wisconsin ex rel. Universal Processing Services of Wisconsin, LLC, Petitioner, v. Circuit Court of Milwaukee County and the Honorable John J. DiMotto, presiding, Samuel B. Hicks and Merchant Card Services, Inc. Respondents.

Issue presented: In this case, the Supreme Court has agreed to consider using its supervisory authority over lower courts to determine if a lower court may have overstepped its authority. More specifically, the Court reviews whether a circuit court may, without the consent of the parties, appoint a referee to handle all pre-trial matters in a case going to trial and issue orders that will be approved as orders of the circuit court, without hearing, either automatically or under an abuse of discretion review, with all costs of the referee to be borne by the parties.

Some background: Universal Processing Services of Wisconsin, LLC, doing business as Newtek Merchant Solutions, became involved in a business contract dispute with Samuel B. Hicks and his company, Merchant Card Services, Inc.

Newtek provides bank card processing services to businesses that want to allow their customers to pay with credit, debit, or gift cards. Hicks agreed as an independent contractor to solicit customers to enter into contracts with Newtek for bank card processing services; engage in client development and customer relations efforts; and perform due diligence regarding merchants, including personal site inspections, to ensure that customers do not expose Newtek to unreasonable risk.

On April 16, 2014, Newtek sent Hicks a formal notice that Hicks was not performing his contractual duties. Newtek ultimately allowed Hicks four months to comply with his contract, which Newtek says Hicks failed to do. On Aug. 27, 2014, Newtek terminated Hicks’s agency for cause.

After termination, Newtek said it learned that Hicks was soliciting Newtek’s customers and disclosing Newtek’s confidential and trade secret information to Newtek’s competitors, in violation of Hicks’s continuing non-solicitation and non-disclosure obligations to Newtek. Newtek sent Hicks a cease and desist letter.

In Sept. 2014, Newtek sued Hicks and his company for breach of contract, intentional interference with Newtek’s contracts with its merchants, breach of fiduciary duty, misappropriation of confidential information, and misappropriation of trade secrets. Newtek demanded a jury and paid the jury fee. Newtek also sought and obtained a temporary restraining order barring Hicks from soliciting Newtek’s merchants or disclosing confidential information and secrets. The temporary restraining order was continued as a temporary injunction after briefing and two hearings before Judge John J. DiMotto, Milwaukee County Circuit Court.

Hicks and his company brought counterclaims, alleging that Newtek breached the contract terminating Hicks without cause and that Newtek intentionally interfered with Hicks’s relationship with a business partner. Hicks and his company claimed that Newtek caused them nearly $17 million in damages. Newtek disputes those allegations.

At a Feb. 17, 2015 hearing, the circuit court informed the parties that, pursuant to Wis. Stat. § 805.06, the court was going to appoint a special master/referee (SMR) to oversee discovery in the case, and it directed Newtek to draft a proposed order appointing retired Judge Michael J. Skwierawski as SMR to oversee discovery.

Skwierawski informed counsel they should submit any objection to his proposed order both to the circuit court and to him. Counsel for Newtek immediately contacted Newtek to discuss the proposed order and prepare objections. However, by the following morning, Skwierawski informed the parties that the circuit court had already entered the proposed order that Skwierawski had drafted. The order also provided that the SMR is to be compensated at the rate of $450 per hour, plus expenses, to be paid by the parties.

According to Newtek, the order drafted by Skwierawski was far more extensive than the scope initially indicated by the circuit court. The order of appointment provides that any ruling of the SMR is automatically confirmed as an order of the circuit court, unless a party presents the circuit court with exceptions to the ruling within five business days. The order also provides that, if an exception is filed, the circuit court will, without a hearing, affirm the SMR’s order unless “the ruling is based on an erroneous exercise of discretion.”

Newtek says that since Feb. 17, 2015, the SMR has heard every matter raised in the case, issued orders on more than 20 matters, and effectively has been the de facto judge. It says the circuit court has approved, without modification, every order the SMR has issued in every instance without a hearing and in nearly every instance without any analysis or discussion beyond a statement that the SMR’s ruling was a “proper exercise of discretion.”

Newtek says it had no opportunity to provide input or object to the order of appointment before it was entered. Newtek argues the circuit court’s appointment and the SMR’s orders pursuant to the referral are invalid regardless of content. Newtek says the statute does not expressly authorize a circuit court to delegate the power to issue such orders.

On Feb. 4, 2016, Newtek filed a petition for interlocutory review of the circuit court’s Jan. 21, 2016 decision. On April 6, 2016, the Court of Appeals denied the petition on the basis that it failed to satisfy the requirements for interlocutory appeal.

Newtek says in actions to be tried by the court, the court “shall” accept the referee’s findings of fact unless clearly erroneous. See § 805.06(5)(b). In jury matters, a referee may not find facts. See § 805.06(5)(c). A referee’s report is admissible as evidence and may be read to the jury, but the circuit court must first rule on legal objections to the report. Newtek says in all instances, the circuit court must exercise its independent legal judgment before action is taken on a referee’s report.

Newtek also contends that to date, the parties have submitted thousands of pages of documents to the SMR for consideration, both in hard copy and electronically. It says the SMR does not have an office to store the documents and has no staff to organize the file. It says the SMR has no law clerk, and the SMR’s order do not show he has conducted any independent research or reviewed any important directives from this court in cases decided after the SMR’s retirement. Newtek argues the SMR simply lacks the resources to duplicate the efforts of a circuit court judge, and the SMR’s orders have reflected this.

A decision by the Supreme Court is expected to clarify the scope of the statute and the authority of the court to delegate judicial powers to a referee.

Justices Shirley S. Abrahamson and Ann Walsh Bradley dissent on procedural grounds.

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:

2015AP319-CR State v. Works

2013AP2605/2765 Great-West Life & Annuity Ins. v. DOR
2014AP1475-CR State v. Spiess
2014AP2832 State v. Turner
2014AP2861 Bourne v. Melli Law, S.C.
2015AP570 Biersdorf & Assoc. v. Goplin

2015AP415-W Freer v. Cir. Ct. for Dodge County

Eau Claire
2015AP902 State v. Reidinger

2015AP68 State v. Lewis

2015AP760 State v. Wilson

2015AP1072-CR State v. Morales-Pedrosa
2015AP1506 State v. Claybrook
2015AP2137-CR State v. Maxey

La Crosse
2015AP560-CR State v. Green

2013AP988-CR State v. Pearson

2015AP2227-W Weisenberger v. Smith
2016AP218-W Madden v. Pollard

2015AP2603-FT Marquette Co. v. T.F.W.

2013AP557-CR State v. Kucharski
2014AP1979 State v. Grady – Justice Rebecca G. Bradley did not participate.
2014AP2708-CR State v. Anthony
2014AP2883-CR State v. Jordan
2014AP2935 State v. Nash
2015AP391-CR State v. Schessler
2015AP523-CR State v. Stones
2015AP531-CR State v. Evans
2015AP630-31 State v. Amelia A.
2015AP751 State v. Whitehead
2015AP779-CR State v. Alicea – Chief Justice Patience Drake Roggensack did not participate. Justice Ann Walsh Bradley dissents.
2015AP784-CR State v. Gonzalez
2015AP1020-CR State v. Head
2015AP1118-CR State v. Owens
2015AP1216-CR State v. Smith
2015AP1276-CR State v. Lagalbo
2015AP1381 Sears, Roebuck and Co. v. Bayshore Town Center
2015AP1613-CR State v. Webb
2015AP1695 State v. J.L.M.
2015AP1740-CR State v. Henderson
2015AP2098 State v. M.K. – Justice Rebecca G. Bradley did not participate.

2015AP410 Koenig v. Pierce Co. – Chief Justice Patience Drake Roggensack dissents.
2015AP1463-64 Pierce Co. v. C.S.

2014AP1086 Trzebiatowski v. State Farm Mut. Auto. Ins.
2014AP2261-CR State v. Wiese

2014AP2706 State v. Cyzsz
2015AP1963-CRNM State v. Davila

2014AP2182-CR State v. Lawver
2015AP745 State v. Williams
2015AP1271-CR State v. Griffin
2015AP2420 Rock County HSD v. D.B.

St. Croix
2015AP2615-W Whyte v. Douma

2015AP447-CR State v. Arrivi

2015AP190-CR State v. Anderson

Washburn 2015AP714 State v. Christianson

2014AP2995 State v. Singh
2015AP705-CR State v. Abt
2015AP942-CR State v. Novak
2015AP1185 Flores v. City of Waukesha
2016AP36-W Ingram v. Clements

2015AP1188-CR State v. Slies

2015AP1165 Long v. Gitter

Tom Sheehan
Court Information Officer
(608) 261-6640

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