The cases listed below will be heard in the Wisconsin Supreme Court Hearing Room, 231 East, State Capitol.
This calendar includes cases that originated in the following counties:
TUESDAY, MARCH 6, 2012
9:45 a.m. 10AP2023 The Lamar Company, LLC v. Country Side Restaurant, Inc.
10:45 a.m. 10AP1599-CR State v. Lee Roy Cain
1:30 p.m. 11AP329-FT Michael J. Waldvogel Trucking, LLC v. LIRC
WEDNESDAY, MARCH 7, 2012
9:45 a.m. 10AP1785 Joyce Aldrich v. Labor and Industry Review Commission
10:45 a.m. 10AP2900 Wisconsin Dolls, LLC v. Town of Dell Prairie
1:30 p.m. 10AP2533 John N. Kroner v. Oneida Seven Generations Corporation
TUESDAY, MARCH 13, 2012
9:45 a.m. 10AP1192-CR State v. Roshawn Smith
10:45 a.m. 10AP258 Theresa C. Weborg v. Donald B. Jenny, M.D.
1:30 p.m. 10AP2705 Kathleen DeBruin v. St. Patrick Congregation
The Supreme Court calendar may change between the time you receive this synopsis and when the cases are heard. It is suggested that you confirm the time and date of any case you are interested in by calling the Clerk of the Supreme Court at 608-266-1880. That office will also have the names of the attorneys who will be arguing the cases.
Radio and TV, and print media wanting to take photographs, must make media requests 72 hours in advance by calling Supreme Court Media Coordinator Rick Blum at 608-271-4321. Summaries provided are not complete analyses of the issues presented.
WISCONSIN SUPREME COURT
TUESDAY, MARCH 6, 2012
This is a review of a decision of the Wisconsin Court of Appeals, District II (headquartered in Waukesha), which affirmed a Winnebago County Circuit Court decision, Judge Karen L. Siefert, presiding.
2010AP2023 The Lamar Co. v. Country Side Restaurant
This case examines the legal process by which the owners of billboards and underlying property are compensated when a billboard site is condemned to make way for a highway project. The state Department of Transportation (DOT) says this is the first case arising from the state’s recently revised “unit rule.”
Under City of Milwaukee Post No. 2874 VFW v. Redevelopment Authority, 2009 WI 84, 319 Wis. 2d 553, 768 N.W.2d 749, the unit rule determines the fair market value as if only one person owned the property. When the value of the property is determined, the condemnor makes a single payment for the property taken and the payment is then apportioned among the various owners.
Some background: The Lamar Co. owned an outdoor advertising billboard formerly located on premises owned by Country Side Restaurant. Lamar leased space for the billboard from Country Side for $5,400 annually. The premises and sign structure were both condemned by the DOT pursuant to its powers under ch. 32, Stats. In September 2008, the DOT made a jurisdictional offer to purchase to Country Side and Lamar. The following month the DOT issued a $2 million award of damages pursuant to § 32.05(7). The DOT’s appraisal set the value of the permitted sign site at $65,000 and the value of the sign at $65,079.
The DOT paid Lamar $75,175 for the in-place value of the sign. It also paid sign removal expenses and relocation expenses, bringing Lamar’s total compensation from DOT for the sign to $83,525. Lamar signed a payment schedule summary worksheet reflecting the compensation received and agreed to waive “any right to future claims for damage or loss involving this sign.” The waiver said “the reimbursement stated on this worksheet has been reviewed and agreed to by both parties. The sign owner or representative, by signing this document, waives any right to future claims for damages or loss involving the sign.”
DOT tendered payment in the amount of $1,985,785.51 to Country Side and Lamar, and the parties agreed to negotiate the award. The negotiation resulted in all proceeds being transferred to Country Side except a disputed amount of $120,000 which was deposited with the clerk of circuit court, pursuant to § 32.05(7)(d), for eventual distribution in accordance with a future court order. Lamar and Country Side could not agree on the distribution of the $120,000 so Lamar filed a claim for partition. Country Side filed a petition for the disbursement of the funds to Country Side.
At a hearing in May 2010, Country Side argued that Vivid, Inc. v. Fiedler, 219 Wis. 2d 764, 580 N.W.2d 644 (1998) controlled and instructed that Lamar’s exclusive remedy was under § 84.30(8). The trial court agreed with this analysis and ordered that the $120,000 be disbursed to Country Side. Lamar appealed, and the Court of Appeals affirmed.
The court noted while Lamar agreed with Country Side that § 84.30(8) provides the exclusive remedy for the taking of a take by eminent domain, Lamar argued that § 84.30(8) does not provide the “procedural mechanism by which you obtain that remedy.” Instead, Lamar argued § 32.05 provides that procedural mechanism.
Lamar says § 32.05(9)(a)3. expressly provides that “when the owners or parties having an interest in land taken cannot agree on the division of an award, any of such owners or parties of interest may petition the circuit court for the county wherein the property is located for partition of the award monies as provided in s. 820.01.”
Lamar notes the summary worksheet contained no reference to a waiver of claims against any third parties, nor did it include a waiver of compensation for Lamar’s permit rights, sign location value, leasehold value, or anything else not directly tied to the value of the sign structure itself.
Country Side argues that since Lamar negotiated with DOT and was paid total compensation in excess of $83,000, and because Lamar signed a document waiving future claims for damages or loss involving the sign, Lamar is not entitled to any additional compensation from anyone.
A decision by the Supreme Court could affect billboard and property owners throughout the state.
WISCONSIN SUPREME COURT
TUESDAY, MARCH 6, 2012
This is a review of a decision of the Wisconsin Court of Appeals, District IV (headquartered in Madison), which affirmed a Marquette County Circuit Court decision, Judge Richard O. Wright, presiding.
2010AP1599-CR State v. Cain
This criminal case examines the circumstances under which a plea may be withdrawn.
Some background: Police found 16 marijuana plants while executing a search warrant in Lee Roy Cain’s residence. Police also found a five-gallon bucket containing a “substantial amount” of material that tested positive for the active ingredient in marijuana.
The State charged Cain with three drug-related felonies. Only one of these charges – manufacture/deliver THC (>200-1000G), § 961.41(1)(h)2 – is at issue here.
The parties reached a negotiated plea agreement under which Cain would plead no contest to the manufacturing charge and the other charges would be dismissed.
At the plea hearing, Cain denied an elemental fact of the manufacturing charge: that he was growing between five and 20 marijuana plants. § 961.41(1)(h)2. Cain denied that he was growing five marijuana plants, as the statue minimally requires, and he would admit to growing only four plants. The circuit court accepted Cain’s plea and entered a judgment of conviction.
The circuit court held a sentencing hearing two months later at which Cain and his lawyer made reference to Cain having five or more plants at his house. Neither Cain nor his attorney raised any challenge to the plea hearing before or during the sentencing hearing.
In a motion for post-conviction relief, Cain argued that he should be allowed to withdraw his plea because he directly denied the charged offense at the time of his plea. During oral argument on this motion, Cain’s post-conviction counsel acknowledged that Cain’s counsel had stipulated at the plea hearing that there was a factual basis for the plea. But post-conviction counsel contended that the circuit court erred in accepting the plea in light of Cain’s explicit denial of the plant quantity.
Post-conviction counsel asked the court to allow Cain to withdraw his plea. The circuit court denied the motion on the grounds that Cain entered the plea knowingly, voluntarily, and intelligently after a lengthy colloquy.
On appeal, Cain renewed his argument that the circuit court erred in accepting his plea at the plea hearing. He argued that as soon as he denied growing at least five marijuana plants, the court should have adjourned the plea hearing and set the case for trial. Cain also argued that the court’s denial of his post-conviction motion to withdraw his plea resulted in a manifest injustice.
The Court of Appeals ultimately
affirmed the judgment and order of the circuit court based on Cain’s and
his lawyer’s references to five or more plants during the sentencing hearing.
Cain contends that the Court of Appeals’ decision conflicts with Johnson v. State, 53 Wis. 2d 787, 790, 193 N.W.2d 659 (1972), which states in part: “... If the defendant denies an element of the crime after pleading guilty the court is required to reject the plea of guilty. The matter is then set for trial.” He argues the court never should have accepted his plea, and his unwarned statements at sentencing cannot smooth over that fact.
The state argues that the number of plants grown by the defendant is not an element of the crime of manufacturing, and thus Cain was not required to admit the number of plants he grew to support his plea to the charge of manufacturing.
WISCONSIN SUPREME COURT
TUESDAY, MARCH 6, 2012
This is a review of a decision of the Wisconsin Court of Appeals, District III (headquartered in Wausau), which reversed a Langlade County Circuit Court decision, Judge Fred W. Kawalsi, presiding.
2011AP329-FT Waldvogel Trucking v. LIRC
In this unemployment compensation case, the Supreme Court examines whether an employee who uses illegal drugs, thus making him ineligible for employment, may receive unemployment benefits.
Some background: In January 2008, Waldvogel Trucking, a dairy product transport business, hired Daniel Berceau as truck driver, a position requiring a commercial driver’s license (CDL). In May 2009, Berceau was laid off due to a lack of work. He was recalled Aug. 12, 2009. Berceau submitted to a drug test the next day and tested positive for marijuana.
Berceau knew Waldvogel Trucking’s drug and alcohol policy mirrored the requirements for a CDL of the Federal Motor Carrier Safety Administration.
Berceau’s employment was terminated on Aug. 18, 2009, after Waldvogel learned of the positive test. No evidence was submitted that Berceau had used marijuana between the time of the Aug. 12 recall and the Aug. 13 drug test.
Following his discharge, Berceau filed an unemployment insurance claim. Benefits were initially awarded on the basis that the behavior resulting in the positive drug test occurred prior to the rehire, and so could not be classified as misconduct connected with employment.
The administrative law judge reversed, concluding because the employee "fully understood the employer’s drug policy prior that [marijuana] use, and because he knew he would have to pass a drug test when he was recalled to work, the tribunal concludes that his behavior evidenced an intentional and substantial disregard of the employer’s interests.”
Berceau petitioned the commission for review. It reversed. It noted there was no evidence the employee was on definite layoff. Therefore, it determined the August 2009 recall was a new employment relationship and the test was a pre-employment drug test.
The circuit court reversed, noting that regulation of the employee’s off-duty conduct must bear a reasonable relationship to the employer’s interests. Here, it was undisputed the employee knew he would have to pass a drug screen to maintain a valid CDL.
The Court of Appeals reversed and remanded for reinstatement of the commission’s decision. It said it need not resolve the parties’ dispute as to the deference due to the commission because, under any level, it would affirm. It said no employment relationship exists following layoff for an indefinite period. See A.O. Smith Corp., 88 Wis. 2d at 269-70. Here, the commission found that Berceau’s layoff was indefinite
Waldvogel Trucking argues that employees who fail a drug test, leading to the loss of the license necessary for employment, engage in misconduct associated with employment, are unable and unavailable to work, and should not be eligible for unemployment benefits. Waldvogel Trucking says both federal law and company policy require Berceau to pass a drug test when recalled to work as a truck driver, and Berceau knew this.
The Labor Industry Review Commission (LIRC) responds that Waldvogel Trucking is asking the court to invade the province of the Legislature. Also, LIRC argues the statutory distinction between availability for a specific job and general availability for work is settled. LIRC argues that if there is no employment relationship, there is no misconduct. See § 108.04(5)(work termination must be for misconduct connected with the employee’s work). It says when Berceau ingested the marijuana, he was not an employee of Waldvogel and had not been one for months.
A decision by the Supreme Court could clarify standards defining misconduct connected with the employee’s work within the meaning of § 108.04(5).
WISCONSIN SUPREME COURT
WEDNESDAY, MARCH 7, 2012
This is a review of a decision of the Wisconsin Court of Appeals, District III (headquartered in Wausau), which affirmed a Eau Claire County Circuit Court decision, Judge William M. Gabler, presiding.
2010AP1785 Aldrich v. LIRC (Labor and Industry Review Commission)
The primary question presented in this case, which examines interplay of state and federal employment law, is whether a Wisconsin Fair Employment Act (WFEA) claim was untimely under Wisconsin law.
Some background: Joyce Aldrich was demoted from her position at Best Buy in March 2003. She promptly contacted the Equal Employment Opportunity Commission (EEOC) in Milwaukee that month, asking about filing a discrimination claim. On Aug. 27, 2003 she submitted to the EEOC a signed “charge questionnaire.” Aldrich responded to follow-up questions upon receiving an Aug. 29, 2003 letter from EEOC, and has stated that she thought that her claim was “filed” as of the date the questionnaire was received by the EEOC.
An individual who believes he or she has been subjected to workplace discrimination may file a complaint with the EEOC under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and/or the Equal Rights Division (ERD) of the Wisconsin Department of Workforce Development under the Wisconsin fair employment law, Wis. Stat. §§ 111.31-111.39.
A worksharing agreement between the EEOC and the ERD exists, whereby if a complainant files a discrimination claim with one agency that agency first transmits it to the other agency and proceeds with the investigation. Federal law imposes a 300-day time limit on discrimination claims made with the EEOC. 42 U.S.C. § 2000e-5(e)(1). The WFEA permits the department’s receipt and investigation of complaints charging discrimination “if the complaint is filed with the department no more than 300 days after the alleged discrimination.” Wis. Stat. § 111.39(1). The federal and state agencies have different requirements in terms of what constitutes a “complaint” for purposes of preserving and pursuing a claim.
In January 2004, matters at work were not improving and Aldrich resigned from her position at Best Buy. She submitted supplemental information regarding her resignation to the EEOC in January 2004. The parties now dispute whether this constituted a constructive discharge claim. Constructive discharge is the termination of employment brought about by making the employee’s working conditions so intolerable that the employee feels compelled to leave.
On Feb. 4, 2004, Aldrich signed a “Charge of Discrimination” formally alleging sex and age discrimination by Best Buy. Her charge was then deemed formally filed with the EEOC. Pursuant to the worksharing arrangement the EEOC transmitted Aldrich’s charge to the ERD on Feb. 17, 2004 and the ERD received her charge on Feb. 18, 2004.
The EEOC dismissed Aldrich’s claims as untimely in January 2005. Aldrich then filed an action in federal court, alleging sex and age discrimination under federal law, as well as constructive discharge. The federal court granted summary judgment to Best Buy based on its conclusion that Aldrich’s claims were barred because she failed to file her EEOC charge within 300 days of the alleged discrimination. The court also found that the filed charge did not include a claim for constructive discharge and that she failed to timely amend to include such an allegation. Aldrich did not appeal the federal court decision, and instead requested that the Wisconsin ERD recommence its investigation of her claims.
In June 2006, the ERD determined that there was probable cause to believe that Best Buy discriminated against Aldrich. A hearing was scheduled before an administrative law judge (ALJ). Best Buy moved to dismiss on grounds of claim preclusion. The ALJ granted Best Buy’s motion and the commission affirmed. The circuit court reversed on certiorari review concluding that doctrine of claim preclusion is not applicable. The Court of Appeals affirmed the circuit court’s decision, concluding: “Because Aldrich could not bring her WFEA claims in the prior federal action, the doctrine of claim preclusion is not applicable to her claims before the [ERD].” Aldrich v. LIRC, 2008 WI App 63, ¶14, 310 Wis. 2d 796, 751 N.W.2d 866 (citation omitted).
The matter was remanded. On remand, Best Buy again filed a motion to dismiss Aldrich’s claims, this time on grounds that Aldrich’s demotion claims were time-barred because her EEOC charge was found to be untimely by the federal court and therefore her complaint filed with the ERD was also untimely.
According to Best Buy, the timeliness of the charge under federal law was fully litigated and disposed of in a federal court action. The ALJ granted Best Buy’s motion on March 31, 2009. The commission affirmed. Aldrich sought certiorari review and on June 9, 2010, the circuit court vacated the Commission’s decision. The commission and Best Buy appealed and the Court of Appeals reversed, agreeing that Aldrich’s demotion claims were time-barred.
The Supreme Court examines: whether a document that meets the requirements of a complaint under state law, but does not constitute a “charge” under federal employment law, satisfy the state statute of limitations under the WFEA when the document was submitted to the federal agency under the work share agreement between the ERD and EEOC; if a determination by the federal district court for the Western District of Wisconsin of timeliness under federal law be given preclusive effect in Wisconsin courts when the federal circuit courts of appeal are divided on the issue and the district court’s interpretation has been subsequently rejected by the U.S. Supreme Court; and if Aldrich timely stated a claim for constructive discharge under the WFEA.
WISCONSIN SUPREME COURT
WEDNESDAY, MARCH 7, 2012
This is a review of a decision of the Wisconsin Court of Appeals, District IV (headquartered in Madison), which affirmed an Adams County Circuit Court decision, Judge Charles A. Pollex, presiding.
2010AP2900 Wis. Dolls v. Town of Dell Prairie
This case involves a dispute between the owners of Wisconsin Dolls, an adult-themed resort in the Wisconsin Dells, and the town of Dell Prairie and its town board, over a liquor license.
The Supreme Court is asked to review three issues:
1. Does a description of an alcohol licensee’s entire property “particularly describe the premises” subject to the license?
2. Does a deficiency in the premises description on an approved and issued alcohol license render the license void?
3. May a local government substantially reduce the area of an alcohol[-]licensed premises without consent of the licensee and without the grounds or procedures set forth under Wis. Stat. § 125.12?
The dispute arose after Wisconsin Dolls submitted a renewal application for the 2009-10 license period with the premises description, “All buildings & property comprising approx. 8 acres.”
Although this type of description had never raised red flags in previous years since 2005, a new town clerk was now reviewing license applications. The clerk decided that Wisconsin Dolls’ renewal application inadequately described the premises. On June 30, 2009, the clerk issued a license to Wisconsin Dolls that described the covered premises as “Wisconsin Dolls, LLC, 4179 State Road 13, Wisconsin Dells, WI 53965 (Main Bar/Entertainment Building).”
Wisconsin Dolls objected to the narrowing of the scope of its alcohol license to the “Main Bar/Entertainment Building.” It sought certiorari review of the Town’s decision, asserting that the town’s action constituted a nonrenewal of its license. Therefore, Wisconsin Dolls argued, the town was required to follow the notice and hearing procedures in Wis. Stat. § 125.12(3) and could deny renewal only for statutorily prescribed reasons in Wis. Stat. § 125.12(2)(ag).
The circuit court rejected Wisconsin Dolls’ arguments. It concluded that the town’s action did not amount to a nonrenewal of Wisconsin Dolls’ license, and thus the notice and hearing procedures in Wis. Stat. § 125.12(3) and the statutorily prescribed reasons for nonrenewal in § 125.12(2)(ag) did not apply.
Wisconsin Dolls appealed.
The Court of Appeals concluded that Wisconsin Dolls’ 2008-09 license, which covered all eight acres of the property, did not “particularly describe the premises” as required by Wis. Stat. §§ 125.26(3) and 125.51(3)(d). The license was therefore void. See § 125.04(2) (providing that “[a]ny license or permit issued in violation of this chapter is void”).
The Court of Appeals then reasoned that, as the holder of a void license, Wisconsin Dolls had no license to renew in 2009. See Williams v. City of Lake Geneva, 2002 WI App 95, ¶9, 253 Wis. 2d 618, 643 N.W.2d 864 (holding that “‘[a void license is] no license’”)(citation omitted). The only way the holder of a void license may obtain a valid license is to file an application for an original license. Thus, the Court of Appeals reasoned, the notice and hearing protections that must be provided in nonrenewal situations did not apply to Wisconsin Dolls.
A decision by the Supreme Court could clarify the law related to the sufficiency of property descriptions in liquor licenses and the process by which liquor licenses are approved or not approved.
WISCONSIN SUPREME COURT
WEDNESDAY, MARCH 7, 2012
This is a review of a decision of the Wisconsin Court of Appeals, District III (headquartered in Wausau), which affirmed a Brown County Circuit Court decision, Judge Donald R. Zuidmuler, presiding.
2010AP2533 Kroner v. Oneida Seven Generations Corp.
This employment case examines whether a civil suit was properly transferred from the circuit court to the Oneida Tribal Judicial System pursuant to Wis. Stat. § 801.54.
Some background: From 2001 to 2008, John N. Kroner was employed as the Chief Executive Officer of Oneida Seven Generations Corporation (Seven Generations), a tribally chartered corporation controlled by the Oneida business committee on behalf of the Oneida tribe, the corporation’s sole shareholder. Net revenue is paid to the tribe’s general fund. The purpose of the corporation is to promote and enhance business and economic diversification with respect to real estate assets, management of related assets or as a holding company for other business ventures of the Oneida Nation.
When Kroner’s employment was terminated in 2008, he filed suit alleging breach of contract on the ground that Seven Generations failed to follow policies and procedures set forth in “the Blue Book,” the tribe’s employee manual. (Kroner is not a tribe member.)
Seven Generations argued that the Blue Book was inapplicable to Kroner and the complaint failed to state a claim. Seven Generations argued the employee guidelines showed that all employees were at will. Seven Generations also argued the action was barred by sovereign immunity.
The circuit court reserved ruling on Seven Generations’ motion to dismiss the complaint for failure to state a claim. It suggested the parties apply to the tribal court to accept transfer of the case. In response to correspondence from Seven Generations’ counsel, the Chief Judicial Officer of the Oneida Tribal Judicial System, Winnifred Thomas, stated that the transfer should take place pursuant to § 801.54, which governs discretionary transfers from state to tribal courts “in cases, such as this one, where there is not a case pending in the tribal jurisdiction.”
Kroner continued to conduct written and oral discovery. The court held a hearing in which it gave the parties a scheduling order for pretrial motions, discovery and trial. A few months later, which amounted to 14 months after receipt of Thomas’ letter, Seven Generations moved to transfer under § 801.54. The circuit court denied Seven Generations’ motion to dismiss and following the hearing, granted the request to transfer to tribal court pursuant to § 801.54.
On appeal, Kroner argued the circuit court erred because the record did not support its determination that tribal court had concurrent jurisdiction and the circuit court failed to properly consider the statutory discretion factors. The Court of Appeals concluded the record supported the circuit court’ exercise of discretion and affirmed.
The Court of Appeals said Kroner’s primary argument was that it is inequitable for him to start all over again in a new forum after almost two years of litigation. On the other hand, Seven Generations responded that the tribal court was located in the same county as the circuit court and Kroner’s pretrial discovery was still usable. The circuit court recognized the case was “well formed up” and “simply needs to be submitted.”
Also, the circuit court required Seven Generations to obtain a scheduling conference in the tribal court to be heard within 45 days of the transfer and report back to the circuit court. Under § 801.54(3) and (5), the transferring circuit court maintains jurisdiction over the parties, even after transfer.
The Court of Appeals noted that the final factor was a catchall provision and neither party asserted the factor applied. It further stated that the better practice is for circuit courts to individually address each of the statutory factors to minimize the potential for error, reduce appeals, and ease appellate review. However, it was satisfied the record disclosed an appropriate exercise of discretion under § 801.54.
Kroner now presents three issues: (1) whether the case could be transferred pursuant to § 801.54 when the circuit court did not consider “all relevant factors” as required by the statute; (2) whether the circuit court properly exercised its discretion in transferring the case when the evidence shows that the factors under § 801.54(2) did not favor transfer; and (3) whether the threshold criterion of “concurrent jurisdiction” under § 801.54 was established, when the record failed to demonstrate subject matter jurisdiction or personal jurisdiction in the Oneida tribal court.
WISCONSIN SUPREME COURT
TUESDAY, MARCH 13, 2012
This is a review of a decision of the Wisconsin Court of Appeals, District III (headquartered in Wausau), which reversed a Brown County Circuit Court decision, Judge Sue E. Bischel, presiding.
2010AP1192-CR State v. Smith
This criminal case involves two petitions for review. The state of Wisconsin seeks review of a decision reversing Roshawn Smith’s conviction for possession with intent to deliver more than 10,000 grams of tetrahydrocannabinol (THC) as party to the crime.
Smith also filed a petition for review and presents two arguments: (1) the circumstantial evidence is insufficient to support his conviction, and (2) alternatively, because the trial court erroneously accepted his stipulation to the weight of the THC without eliciting a valid jury waiver on that element, he is entitled to a new trial.
Some background: The charges arose from an incident occurring on Sept. 20, 2006, involving two packages of marijuana shipped from California to Green Bay. Each package weighed approximately 25 pounds. After receiving a tip from California police, Green Bay officers, with the consent of FedEx, took their canine unit to a FedEx facility to sniff certain packages for the presence of narcotics. The dog “alerted” to the packages.
An officer dressed as a FedEx employee delivered the packages. Shannon Kortbein signed for delivery and requested that they be placed on her porch. She later stated that she and Smith were friends, and an acquaintance of Smith’s, Terry Thomas, had picked up the packages. Shortly thereafter, Smith gave Kortbein $400 without explanation. She also said she had received two earlier deliveries and both times, after the packages were picked up, Smith paid her $400.
Another individual, David Melhorn, testified he too was a friend of Smith and had agreed to accept delivery of packages on three occasions between July and October of 2006. After the packages were delivered, Smith and Thomas had picked them up.
Before trial, Smith stipulated the packages contained THC and weighed 22,477 grams.
The circuit court conducted a colloquy with Smith concerning the stipulation. With the agreement of the state and defense counsel, the circuit court read the written stipulation to the jury and instructed the jury that it must accept the stipulated facts “as conclusively proved.”
The jury found Smith guilty. He was sentenced to six years initial confinement to be followed by five years extended supervision.
On appeal, Smith raised two issues. First, he challenged the sufficiency of the evidence. Second, he claimed his stipulation as to the weight of the substance deprived him of a jury trial on the elements of the crime. The Court of Appeals concluded the evidence was sufficient. However, it agreed with Smith as to the effect of the stipulation. It reversed and remanded for a hearing as to the proper remedy.
The Court of Appeals said a conviction would not be reversed for insufficient evidence unless the evidence, viewed most favorably to the state and the conviction, is so lacking in probative value and force that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt.
The state’s theory was that Smith was a member of a conspiracy to commit the crime, or he aided and abetted the commission of the crime. The Court of Appeals concluded the evidence permitted the jury to infer that by introducing Kortbein and Thomas, and then by giving Kortbein $400 after each delivery, Smith objectively assisted in the crime of possessing THC with intent to deliver.
Next, the Court of Appeals examined Smith’s challenge to the oral and written pre-trial stipulation that the packages contained THC and weighed 22,477 grams. There was no dispute the jury did not decide the weight of the THC. However, the State argued that the record as a whole demonstrates a voluntary, knowing, and intelligent waiver of the right to a jury trial on this element.
The Court of Appeals said the state does not identify anything in the record showing the circuit court asked Smith if he wished to waive his right to a jury trial on the element of the weight of the THC. Instead, the circuit court’s inquiries addressed whether Smith agreed the crime lab analyst did not need to testify that the substance contained THC. Therefore, the Court of Appeals determined the circuit court failed to conduct the required colloquy.
The state contends “a claim that the wrong fact-finding entity adjudicated the defendant’s guilt on an element of the offense is subject the harmless error rule.” The state also argues the error here was harmless beyond a reasonable doubt, because the evidence of the weight of the substance was uncontradicted and undisputed. Smith chose to defend on the basis that he was not involved in the crime and never claimed he would have wanted the jury to determine the weight issue.
Smith claims the evidence was speculative. He identifies several fact issues that underlie his ostensible liability as a party to the crime. Smith points to a number of innocent explanations, such as, he may not have known about the criminal enterprise and simply acquiesced to a general request to deliver money to Kortbein. Also, there is no proof that earlier packages contained drugs and no direct proof that Smith knew the Sept. 20, 2006, delivery contained marijuana. He argues that his previous conduct after earlier deliveries does not prove that he intended or agreed to be a party to that particular delivery, because an aider/abettor may desist at any point.
Smith argues the Court of Appeals failed to address these specific issues, stating instead that it would not consider each piece of evidence individually, but rather viewed the evidence as a whole. He contends proper appellate review must carefully examine the specific factual evidence.
Smith says the Court of Appeals correctly concluded that there was no valid waiver and he was denied his right to a jury trial on the weight element. He argues the Court of Appeals erred, however, in failing to grant a new trial.
WISCONSIN SUPREME COURT
TUESDAY, MARCH 13, 2012
This is a review of a decision of the Wisconsin Court of Appeals, District III (headquartered in Wausau), which affirmed a Brown County Circuit Court decision, Judge Sue E. Bischel, presiding.
2010AP258 Weborg v. Jenny
This medical malpractice case examines two issues: whether the trial court erred in allowing evidence of life insurance and social security payments following the death of William Weborg; and whether the trial court erred in modifying the standard jury instruction related to expert testimony.
Some background: Theresa Weborg and her three children, as well as the estate of her husband and their father, William Weborg, seek review of a judgment upon a jury verdict finding no negligence on the part of the defendant physicians, Donald B. Jenny, M.D., Erik M. Borgnes, M.D., and Joseph J. Rebhan, M.D.
William Weborg, who was 42, owned a machine shop in Egg Harbor. On March 22, 2004, he sought care from a family practitioner, Dr. Joseph Rebhan, for chest discomfort after experiencing heaviness in the center of his chest following his workout on a cross trainer. Rebhan ordered an exercise stress test, which included an EKG performed before, during and after treadmill exercise, and a nuclear medicine scan.
The results of the stress test were reviewed by Borgness, a radiologist. Evidence at trial indicated the test results were interpreted as abnormal. Rebhan referred to Jenny, a cardiologist, who diagnosed William’s chest pain as musculoskeletal. On Sept. 24, 2004, William died of severe coronary artery disease after suffering a heart attack.
The Weborgs brought this medical malpractice action against the three physicians. Before trial, over the Weborgs’ objection, the circuit court ruled that pursuant to § 893.55(7), the defendants could present evidence of collateral source payments from a life insurance policy and social security benefits. On the third day of the eight-day trial, the collateral source evidence was admitted. On the fifth day of trial, the parties stipulated that the Weborgs’ damages totaled $1,000,000, thus removing the damage issue from jury consideration. The jury returned a verdict in favor of the defendants.
Jury instructions were also subject to dispute. The Weborgs objected to modification of the standard Wis. JI—Civil 260 regarding expert testimony. On motions after verdict, the trial court ruled the life insurance and social security payments were properly admitted pursuant to § 893.55(7). Nonetheless, the trial court acknowledged “there is no question” the information heard by the jury “as to collateral sources of income the plaintiff or her family may have received is prejudice. The court also indicated there may be some “further guidance” from the appellate or Supreme Court on this issue. The court also ruled that the jury instruction modification was not error, as it was consistent with provisions of Wis. JI–Civil 1023 (“You are not bound by an expert’s opinion, except with regard to the standard of care exercised by medical doctors.”).
On appeal, the Weborgs argued they were entitled to a new trial because: (1) prejudice caused by the erroneous admission of the life insurance proceeds ($1,426,110) and social security paid ($3,300 monthly) on William’s death; and (2) prejudice caused by the erroneous modification to Wis. Wis. JI— Civil 260.
The Court of Appeals affirmed, assuming without deciding, that the circuit court erred in admitting evidence regarding the collateral payments pursuant to § 893.55(7). However, the appellate court found no prejudicial effect. It said there was no reasonable possibility the alleged error contributed to the verdict. See Martindale v. Ripp, 2001 WI 113, ¶¶30-32, 246 Wis. 2d 67, 629 N.W.2d 698 (a new trial is warranted only if the error affected the substantial rights of the party; to affect the substantial rights, there must be a reasonable possibility the error contributed to the outcome).
Regarding jury instructions, the Weborgs argued that although the standard instruction informs the jury that it is not bound by any expert opinion, the amended instruction was confusing because it suggests the jury is bound by expert medical care opinions.
The circuit court had modified the standard language and instructed the jury as follows: “You are not bound by any expert’s opinion, except with regard to the standard of care exercised by medical doctors. (Emphasis added). The Court of Appeals agreed with the Weborgs the italicized language was error.
Nonetheless, the court concluded the error was harmless.
A decision by the Supreme Court could provide guidance regarding interpretation of § 893.55(7) as it relates to life insurance proceeds and social security and clarify whether Wis. JI—Civil-260, regarding expert testimony, should be modified as it was in this case and if doing so would be harmless error.
WISCONSIN SUPREME COURT
TUESDAY, MARCH 13, 2012
This is a certification from the Wisconsin Court of Appeals, District II (headquartered in Waukesha). The Court of Appeals may certify cases that it believes cannot be resolved by applying current Wisconsin law. The Wisconsin Supreme Court, as the state’s preeminent law-developing court, often accepts such certifications from the Court of Appeals. This case originated in Walworth County Circuit Court, Judge John R. Race, presiding.
2010AP2705 DeBruin v. St. Patrick
This certification examines whether, under the Wisconsin Supreme Court’s decision in Coulee Catholic Schools v. LIRC, 2009 WI 88, 320 Wis. 2d 275, 768 N.W.2d 868, religious organizations are immune from common law breach of contract lawsuits brought by ministerial employees.
Some background: The dispute arises from Kathleen DeBruin’s one-year contract to serve as the “director of faith formation” for St. Patrick Congregation, a Roman Catholic parish in Whitewater.
The contract provided she would not be discharged during its term without “good and sufficient cause,” which would be determined by St. Patrick. During the contract term, St. Patrick fired DeBruin for allegedly failing to do a background check. She sued for breach of contract, claiming $34,150.27, plus interest, in unpaid wages.
St. Patrick moved to dismiss, arguing that it was protected by Coulee, the Free Exercise Clause of the First Amendment of the U.S. Constitution, and the Freedom of Conscience Clauses in Art. I, § 18 of the Wisconsin Constitution. The circuit court agreed and dismissed the action.
On appeal, DeBruin argues Coulee does not prohibit common law breach of contract claims. She contends that an analysis into a breach of contract seeking unpaid wages would not interfere with any religious function, but would involve a neutral non-intrusive document review. She argues there is no individual religious exemption from neutral laws of general applicability.
The Court of Appeals observes that under Coulee, DeBruin is unquestionably a ministerial employee.
The Court of Appeals says federal and state case law seems to indicate that religious organizations are not immune from common law breach of contract claims from ministerial employees, and that the Wisconsin Supreme Court has stated that the Wisconsin Constitution provides broader religious liberty protections than the First Amendment of the U.S. Constitution. See Coulee, 320 Wis. 2d 275, ¶66.
“As the Wisconsin Supreme Court is the primary lawmaking court in this state, we believe it should have the opportunity to flesh out the Coulee standard, the Court of Appeals wrote.
“We therefore respectfully ask the Wisconsin Supreme Court to accept this certification and resolve the question of whether the religious liberty protections found in the Wisconsin Constitution are so broad as to shield religious organizations from common law breach of contract lawsuits brought by ministerial employees.”