WISCREPORT.COM (10/13/07) - The Wisconsin Supreme Court has agreed to hear 16 new cases. The cases include one involving securities fraud. Another involves whether a defendant is entitled to sentence credit against a new offense for time he spent in custody as a result of an extended supervision hold, and others. The cases are from Brown, Milwaukee, Portage, Sheboygan, Washburn, Waukesha, Dane, Racine and Kenosha counties.
FROM BROWN COUNTY - State v. Louis H. LaCount:
Louis H. LaCount was sentenced to 11 years in prison on one count of securities fraud related to transactions that occurred between June 1998 and October 1998 when he was employed by a “debt-adjustment firm.” The sentence included a penalty enhancer as a repeat offender.
Before LaCount’s arrest, police executed a search warrant and seized 500,000 pages of documents. The warrant sought financial records relating to specific clients, however, police discovered evidence that led to other charges. LaCount ultimately faced a 9-count complaint, but the circuit court agreed to separate the charge that led to the securities fraud conviction.
After being sentenced on the securities fraud conviction, LaCount then negotiated a plea agreement with regard to the remaining charges, the Court of Appeals’ opinion shows. He entered pleas to four counts, while four other counts were dismissed. On one theft charge, the court imposed a fifteen-year prison sentence, concurrent with the sentence previously imposed on the securities fraud conviction. On the remaining counts, LaCount was placed concurrently on probation for fifteen years, but consecutive to the prison term.
He appealed each conviction, claiming: that the search warrant exceeded its scope; the court erroneously allowed “expert” legal testimony; there was no investment contract; and that the finding of habitual criminality violated his right to a jury trial.
LaCount contends, among other things, that the penalty enhancer was erroneously applied by the circuit court, and that the question should have gone to a jury. The Court of Appeals affirmed the circuit court, concluding LaCount was convicted of securities fraud within five years of having been convicted on another felony charge.
A decision by the Supreme Court could clarify some of the issues.
FROM PORTAGE COUNTY - State v. Hintz:
This case involves the question of whether a defendant is entitled to sentence credit against a new offense for time he spent in custody as a result of an extended supervision hold, even though he was granted a signature bond on the new offense.
Some background: In 2001, Terrill Hintz was convicted of OWI, fifth offense, and received a five-year sentence, including eighteen months’ initial confinement and 42 months’ extended supervision.
After being released on extended supervision, Hintz participated in two burglaries, one of which underlies his conviction in this case.
In December 2003, Hintz was taken into custody on an apprehension request issued by his probation agent. The agent later cancelled the apprehension request and placed an extended supervision hold on Hintz. The court allowed Hintz to sign a signature bond for the burglary charges, but he remained in custody on the extended supervision hold.
Hintz’s extended supervision for OWI, fifth offense, was revoked in March 2004. In July 2004, the court re-confined him to one year, 19 days on the OWI conviction and gave him 211 days of sentence credit.
In November 2004, the court sentenced Hintz to four years with two years’ initial confinement and two years’ extended supervision for burglary to run concurrently with the OWI sentence. Hintz moved the court for sentence credit on burglary for the time he was in custody on the extended supervision hold. The circuit court denied the post-conviction motion for sentence credit. The Court of Appeals reversed.
A decision by the Supreme Court could help clarify sentence credits under Wis. Stat. § 973.155(1) (b) (2005-06).
FROM MILWAUKEE COUNTY - Taneceia Larry v. Harris:
This case examines the proper analysis for circuit courts to follow when handling a default judgment when the defendant never appears in the circuit court.
Some background: Taneceia Larry was present at a drug deal that occurred at a gas station in Milwaukee on Aug. 26, 2002. Larry knew, by sight but not by name, a man at the gas station, who asked for a ride home. Larry gave the man a ride to her house. When they arrived in front of Larry’s home, an unmarked squad car containing Milwaukee Police officers Derrick Harris and M’Johno Foster pulled up behind Larry’s car and the unidentified man fled on foot. Police gave chase but did not apprehend him. Larry consented to a search of her vehicle but not her home. Police said they planned to book Larry and entered the home without a warrant to check on five children who were under a babysitter’s care. No charges were ever filed against Larry. She filed a lawsuit naming the two officers and a third, Carlos Rutherford, who arrived apparently as back up and to transport Larry to the police station.
The circuit court initially entered a judgment against Rutherford after he failed to file a timely response. Officer Harris answered the complaint and ultimately obtained summary judgment on the grounds that Larry's complaint did not state a valid claim. In addition to dismissing the action against Harris, the circuit court also vacated the order for default judgment against Rutherford and dismissed the complaint against him, even though he still did not appear in the case and ask to be dismissed. Larry asked the circuit court to reconsider, but the court concluded it could vacate the default judgment under Wis. Stat. § 806.07.
The Court of Appeals affirmed. Larry has asked the Supreme Court to review an issue that does not appear to have been addressed in a previous state appellate court decision. The Supreme Court has also asked the parties to address whether the circuit court's default order constituted a final judgment.
FROM SHEBOYGAN COUNTY - Town of Rhine v. Bizzell:
This certification from District II Court of Appeals raises questions about the constitutionality of a particular zoning ordinance that essentially requires an owner to obtain a conditional-use permit in order to use the property.
The original lawsuit arose from a dispute about the use of an old gravel pit in the town of Rhine in Sheboygan County. The pit was purchased with the intent to use it as a riding area for all-terrain vehicles. Neighbors objected to noise, and litigation over the permissible use of the property ensued.
The Court of Appeals said: This case offers the (Supreme) Court the opportunity to address whether it is reasonable to create a zoning district where the only uses are conditional uses, and if so, what standards or criteria must be included to avoid arbitrary enforcement. Justice Annette Kingsland Ziegler did not participate.
FROM WASHBURN COUNTY - Washburn Co. v. Eric D. Smith:
This case involves the question of due process in a case involving a refusal to submit to a chemical test for the presence of alcohol — whether the state met its burden to show probable cause for an arrest, and whether a deputy misstated the penalties to the suspect under the implied consent law.
Some background: At about 3 a.m. on July 23, Eric D. Smith was arrested for OWI after allegedly speeding and weaving out of his lane of traffic. He was transported to the Washburn County Sheriff’s Department at Shell Lake. When a deputy asked Smith if he would submit to a chemical alcohol test, Smith hesitated, expressing concern he would lose his job if convicted of OWI. The deputy informed Smith, who was a resident of Louisiana, of potential penalties under Wisconsin law if Smith was convicted for OWI or refused a breath test. Smith subsequently gave the impression that he agreed to undergo a breathalyzer test, but he failed to follow instructions to provide a proper sample.
At the refusal hearing, Smith argued the deputy did not have probable cause to make the arrest and that the deputy provided erroneous additional information about potential penalties.
The circuit court found probable cause existed, and that Smith’s refusal to submit to the breath test was unreasonable. The Court of Appeals affirmed in a one-judge decision by Chief Judge Thomas Cane.
A decision by the Supreme Court could help clarify probable cause determinations in criminal and refusal proceedings involving intoxication and provide a framework on which litigants and lower courts may rely.
FROM WAUKESHA COUNTY - Acuity v. Bagadia:
In this insurance-coverage dispute, the Supreme Court is asked to define the term “advertising” as used in construing a particular insurance policy, and to determine if trademark infringement is encompassed within the offense of “infringement of copyright, title or slogan.”
Some background: In 2004, Symantec, a software company that owns several trademarks, filed a lawsuit against Wauwatosa-based UNIK Associates (Kishan Bagadia) in federal court in Oregon. The federal court found that UNIK had distributed unauthorized software to clients. Symantec obtained a judgment totaling $958,253.40 on copyright and trademark claims against UNIK, which was insured by Acuity.
Acuity sought a declaratory judgment in Waukesha County that it did not have a duty to defend or indemnify its policy holder, UNIK, with respect to any allegations made against them by Symantec.
After the federal court decision, Waukesha County Circuit Court granted summary judgment to Symantec and entered judgment for the full amount of damages, costs and fees approved in the Oregon suit. The Court of Appeals affirmed.
At issue is whether UNIK “advertised” when it sent samples of product to potential buyers. The Court of Appeals identified this as a crucial question because, under policy language, there is insurance coverage only for an offense committed “in the course of advertising.”
A decision by the Supreme Court could help determine if Wisconsin law will define advertising in a broad or narrow sense as it relates to certain insurance coverage.
FROM WASHBURN COUNTY - Rechsteiner v. Hazelden:
This case involves the scope of Wis. Stat. § 146.37(1g), which provides statutory immunity for participants in a peer review of a physician.
Some background: Hans Rechsteiner, a physician working for Spooner Health System, was on call on March 8, 2003 when he went snowmobiling with Nathan Christner. Christner was involved in a serious accident. When sheriff’s deputies investigated, they noticed an odor of alcohol from Rechsteiner, who registered a 0.06 percent blood-alcohol content about an hour after the accident.
The sheriff’s department sent a copy of the accident report to Spooner, which referred Rechsteiner to Hazelden, a clinic, for a five-day assessment. To aid in Hazelden’s assessment, Rechsteiner authorized staff to contact his colleagues and acquaintances. He asserts that certain statements that were made by colleagues and acquaintances were defamatory, lowered his reputation in the community and decreased his business.
Hazelden initially concluded Rechsteiner was alcohol dependent, resulting in a twenty-eight day inpatient course of treatment. However, during a follow-up program, two counselors advised him they did not think he was alcohol dependent but that he abused alcohol.
Rechsteiner filed this lawsuit, contending if he had been properly diagnosed, he would not have had to complete a 30-day inpatient treatment, and would not have lost a month’s worth of income.
The circuit court granted the defendants’ motion for summary judgment, ruling the defendants were immune from suit under Wis. Stat. § 146.37(1g). The Court of Appeals affirmed.
A decision by the Supreme Court could address the scope of Wis. Stat. § 146.37, which restricts liability claims resulting from peer review in the evaluation of health-care providers.
FROM DANE COUNTY - Walgreen Co. v. City of Madison:
The issue presented in this case is whether two Walgreen Co.-owned properties in Madison were properly valued for tax purposes.
The city assessor used an income approach, which considered locked-in rent rates specified in leases. Walgreen argues that the assessments should have been based on a “fee-simple” method, which depends on several factors, including sales of comparable properties but not contract rents.
The difference is significant. For example, the city assessor calculated the 2003 assessed value of one of the properties at $4,618,000; Walgreen’s expert calculated the value for the same year at $1,790,000.
The city argues that Walgreen’s approach does not reflect the true value of the properties because it ignores the guaranteed rents under the terms of a 20-year contract. There is no “comparable” property because other properties don’t have that feature, according to the city.
Walgreen asks the Supreme Court to review a Court of Appeals’ published decision that affirmed the assessments and the methodology used to make the assessments.
FROM SHEBOYGAN COUNTY - State v. Harris:
In this case, the Supreme Court has been asked to determine if a mistrial or continuance should have been granted due to, among other things, tardy disclosure by the prosecution regarding possible fingerprint evidence.
Ronell Harris was convicted of possessing cocaine with intent to deliver. His pretrial discovery request sought exculpatory evidence and reports of scientific evidence. On the morning of the trial, the prosecutor indicated no usable fingerprints were lifted from a baggie. The defense counsel took the position that the state’s inability to find usable prints as evidence that scientific testing has been attempted but not disclosed.
The circuit court denied a request for a mistrial – a decision upheld by the Court of Appeals. The Court of Appeals concluded that the defendant was not prejudiced by the lack of disclosure, and that the verdict would not have changed as a result of disclosure.
Defense counsel argues that late disclosure destroyed his trial strategy, making it exceedingly difficult to render effective assistance.
The Supreme Court could decide if the failure to disclose the fingerprint information alone or in combination with other errors were so prejudicial to deprive the defendant of effective assistance of counsel.
FROM BROWN COUNTY - State v. Davis:
This certification asks the court to review the admissibility of statements made in conjunction with a polygraph test and whether statements made in conjunction with a voice stress test may be treated in the same fashion. Certification of another case, (2006AP285-CR, State v. Shawn Harris), involving a similar question, is held in abeyance pending a decision in this case.
Some background: Police gave defendant Keith Davis a voice stress test, not a polygraph test. However, the parties’ arguments in circuit court assumed that the law related to polygraph tests should also be applied to voice stress tests, and the circuit court applied the law.
The circuit court found that after conducting the voice stress test, an officer advised Davis that he believed Davis had been untruthful about two questions. Davis was told the voice stress test was over, but he was taken to a second room and gave a statement that he later moved to suppress.
Statements made during a polygraph examination, or during a post-polygraph interview that was closely related to the examination are inadmissible. A multi-factor test helps a court determine if statements are admissible.
The Court of Appeals has asked the Supreme Court to clarify rules or develop a legal framework to help courts determine the admissibility of statements made during or closely related to a polygraph test.
MILWAUKEE COUNTY - Donohoo v. Action Wisconsin, Inc. and Christopher Ott:
This case involves a defamation lawsuit and the process to be followed when an appellate court reviews a circuit court’s findings of frivolousness.
Some background: In February 2004, Grant E. Storms, a pastor in a Louisiana church and an opponent of gay rights, filed a defamation suit against Action Wisconsin, Inc. and Christopher Ott. Storms accused Action Wisconsin and Ott of posting a press release on its Web site that suggested Storms advocated the murder of gay people.
Attorney James Donohoo, on behalf of Storms, sent a letter to Action Wisconsin President Timothy O’Brien, asking for a retraction and to have the press release, issued by Christopher Ott, taken off the Web site. Donohoo filed the defamation suit after getting no response. Attorneys for Action Wisconsin told Donohoo the lawsuit was frivolous, and that Donohoo could face sanctions for filing a frivolous lawsuit. Action Wisconsin argued that because Storms was a public figure, he would have to show proof of malice and that his reputation was damaged.
The circuit court, which dismissed the defamation suit, said Donohoo failed to present sufficient evidence to meet his burden to prove Wisconsin Action’s press release was false and malicious. That decision was not appealed, but Storms filed a motion for reconsideration, and Action Wisconsin filed a motion seeking costs and attorney fees.
The circuit court denied the motion for reconsideration, but granted the motion seeking costs and attorney fees, which added up to more than $87,000. The Court of Appeals reversed.
A decision by the Supreme Court could clarify Court of Appeals’ standard of review in deciding frivolousness and the appropriate analysis of “actual malice.” Justice Annette Kingsland Ziegler did not participate.
MILWAUKEE COUNTY - State v. Clayborn L. Walker:
In this case, the state has asked Supreme Court to review how previous court decisions may apply to cases involving sentences imposed at re-confinement hearings.
More specifically, does the Supreme Court’s decision in State v. Brown create a per se rule that requires circuit courts that did not impose the original bifurcated sentence to consider the original sentencing transcript at a re-confinement hearing? And, would that rule apply retroactively to re-confinement decisions made before the Brown decision was issued?
Some background: In May 2003, Clayborn L. Walker pled guilty to being party to armed robbery with use of force. He was sentenced to two years in prison, followed by four years of extended supervision. He was released on extended supervision in late 2004, but was eventually arrested for violating the rules of his supervision and absconding. He was sentenced to two years in prison. Walker appealed, arguing there was nothing on the record to indicate that the re-confinement court took into account factors weighed at the original sentencing.
A decision by the Supreme Court could clarify case law on sentences imposed at re-confinement hearings.
RACINE COUNTY - Racine Co. v. Int’l Assoc. of Machinists and Aerospace Workers:
This case involves the question of whether Racine County violated the terms of a collective bargaining agreement between it and the International Association of Machinists and Aerospace Workers.
In the fall of 2003, Donald LaFave and Judith Berndt, family court social workers/case managers, were told that they would be laid off if they chose not to exercise bumping rights under a labor agreement. Another social worker/case manager, was informed if she didn’t accept a reduction to part-time status that she would be laid off.
The county’s family court commissioner and director of family court counseling services, Kevin Van Kampen, advised several workers, including LaFave and Berndt, that the county wanted to continue to provide statutorily required counseling services with them working as independent contractors. LaFave and Berndt entered such contracts. The union filed a grievance, contending the arrangement violated a collective bargaining agreement.
An arbitrator sustained the grievance – a decision reversed by the circuit court, but upheld by the Court of Appeals.
The county argues the arbitrator exceeded her powers; the union says the arbitrator’s award simply prohibits the county from labeling employees as independent contractors to evade terms of a labor agreement.
A decision by the Supreme Court could clarify the interplay between collective bargaining agreements and statutes, and if this case is distinguishable from previous cases.
KENOSHA COUNTY - Sustache v. American Family Mutual Insurance Co.:
This case involves the “four-corners rule,” which with few exceptions, confines an insurer’s duty to defend to what’s spelled out in the policy.
Some background: James Sustache, a teenager, was killed when he was punched by Jeffrey Mathews during an altercation at a party. James’ parents and his estate sued Jeffrey and his insurer, American Family.
The amended complaint alleged that Jeffrey had committed intentional battery, and that his actions were wanton and malicious, warranting an award for punitive damages. Jeffrey said he was exercising his right of self-defense when he delivered the fatal blow to James. Citing the four-corners rule, American Family moved for summary judgment, arguing it had no duty to defend Jeffrey because he had acted intentionally.
The circuit court granted American Family’s motion, concluding that it was bound by a previous decision — Doyle v. Engelke. Mathews appealed, and the Court of Appeals certified the case. The Supreme Court refused certification on April 17, 2007, but now has agreed to review it upon Mathews’ appeal.
A decision by the Supreme Court may help sort out a possible conflict in Doyle and other decisions by the Court of Appeals and this Court. Justice Annette Kingsland Ziegler did not participate.
WALWORTH COUNTY - Hefty v. Strickhouser:
In this case, which stems from a dispute between a farmer and an animal nutrition consultant, the court is asked to review a judge’s authority to issue a scheduling order that deviates from standard deadlines in Wis. Stat. § 802.08(2).
Jeannie Hefty, doing business as Heft-Kat Farm, hired Daniel R. Strickhouser as a dairy cow nutritionist. For a time, milk production at the farm increased, but Hefty sued Strickhouser and ADM Alliance Nutrition, Inc. after milk production dropped and cattle began exhibiting signs of illness.
The defendants moved for summary judgment, and the circuit court issued a scheduling order with a 20-day deadline for Hefty to respond. Hefty responded five days late, and the court granted summary judgment. Hefty appealed, and the court of appeals reversed, relying heavily on a prior Court of Appeals’ decision.
The Court of Appeals said it was unconvinced the circuit court judge had sufficient reason to approve a shortening of the time limit in this particular case.
Strickhouser asks the Supreme Court to determine if the Court of Appeals exceeded its authority and to what extent circuit courts have inherent authority to control their dockets.
DANE COUNTY - Town of Madison v. County of Dane:
In this case, Dane County is asking the Supreme Court to review if it is required to pay the Town of Madison half the town’s cost in constructing a bridge under Wis. Stat. § 81.38.
On June 10, 2004, the town petitioned the county for aid in constructing a bridge that would cross over a railway corridor and connect two previously unconnected portions of a frontage road. The county denied the town’s petition on Sept. 9, 2004, concluding the town’s petition did not qualify for aid. The town filed a notice of claim with the county and began construction on the bridge in January 2005. The town filed suit, challenging the county’s denial of its petition. The town argued in a motion for summary judgment that it was entitled to aid because the bridge was constructed “on a highway maintainable by the town,” as required by Wis. Stat. § 81.38 (1). The circuit court agreed with the town and granted summary judgment. The Court of Appeals affirmed.
The County argued the bridge was not constructed “on a highway maintainable by the town,” and “because the bridge was not on a section of pre-existing highway.
A decision by the Supreme Court could help clarify the law statewide on an issue that is likely to recur.