Having trouble viewing the email below? View this issue online.
CaseLaw Express
Week of May 17, 2010

 Supreme Court Cases
  • Attorney Discipline

    Office of Lawyer Regulation v. Anderson
    Docket: 2007AP002617 05-21-10
    PER CURIAM. The Office of Lawyer Regulation (OLR) appeals the portion of Referee Jonathan V. Goodman's report recommending as discipline for professional misconduct that Attorney Scott F. Anderson pay his former client $10,872.50. Attorney Anderson stipulated to three counts of misconduct involving a lack of diligence, the failure to inform a client, and the failure to explain matters to a client. The referee recommended that if Attorney Anderson would fail to make the payment within 365 days, Attorney Anderson should remain obligated to make the payment and his license to practice law in Wisconsin should be suspended for 60 days.
  • Criminal Law/ Venue/ Statutes/ Statutory Construction-Interpretation/ Election Law

    State v. Jensen
    Docket: 2008AP000552 05-20-10
    PATIENCE DRAKE ROGGENSACK, J. We review a decision of the court of appeals affirming the circuit court's decision denying Scott R. Jensen's (Jensen) motion to change the venue of his criminal trial to Waukesha County Circuit Court pursuant to Wis. Stat. § 971.19(12) (2007­08). The issue presented is whether Waukesha County Circuit Court is the proper venue for Jensen's trial because it is the "circuit court for the county where the defendant resides" pursuant to § 971.19(12), or whether Dane County Circuit Court, the circuit court for the county "where the crime was committed," is the proper venue for his trial pursuant to § 971.19(1).
 Court of Appeals Cases
  • Anti-Trust/ Jurisdiction/ Discovery/ Constitutional Law-Due Process/ Statutes

    Rasmussen v. General Motors
    Docket: 2007AP000035 05-20-10
    DYKMAN, P.J. David Rasmussen appeals from an order dismissing the Japan-based Nissan Motor Company (Nissan Japan) from Rasmussen's class-action conspiracy and anti-trust action against various local and foreign automobile companies. Rasmussen contends that Nissan Japan is subject to personal jurisdiction in Wisconsin under WIS. STAT. § 801.05 (2007-08), and that the exercise of that jurisdiction comports with Due Process principles. Alternatively, Rasmussen argues that the circuit court erred in limiting the scope of jurisdictional discovery, thus preventing Rasmussen from obtaining documents he needed to establish personal jurisdiction over Nissan Japan. We conclude that Nissan Japan is not subject to personal jurisdiction in Wisconsin and that we have no basis to disturb the circuit court's discovery order. Accordingly, we affirm.
  • Criminal Law/ Ineffective Assistance Of Counsel/ Pleas/ Plea Agreement

    State v. Komorowski
    Docket: 2009AP001005 05-18-10
    PER CURIAM. Claude Amil Komorowski appeals from a judgment, entered upon a jury's verdicts, convicting him of five felony offenses. He also appeals from an order denying his postconviction motion. He claims that the verdicts should be set aside because his trial counsel performed ineffectively during the plea bargaining process by failing to convey an offer from the State to resolve the case short of trial. Because the record supports the circuit court's conclusion that the State did not extend the alleged offer, we affirm.
  • Criminal Law/ Ineffective Assistance Of Counsel/ Procedure

    State v. Dowell
    Docket: 2009AP001095 05-18-10
    PER CURIAM. James K. Dowell appeals from orders denying his postconviction motion, filed pursuant to WIS. STAT. § 974.06 (2007-08), alleging ineffective assistance of counsel. We affirm.
  • Criminal Law/ Ineffective Assistance Of Counsel/ Procedure/ Appeal Barred

    State v. Olson
    Docket: 2009AP002894 05-18-10
    KESSLER, J. Jeffrey Edward Olson, pro se, appeals from orders denying his motions for postconviction relief. We affirm the circuit court's orders on procedural grounds.
  • Criminal Law/ Judicial Authority-Discretion/ Ineffective Assistance Of Counsel/ Attorneys/ Pro Se/ Procedure/ Jury Instructions

    State v. Steed
    Docket: 2009AP000626 05-20-10
    PER CURIAM. Robert Steed appeals from a judgment convicting him of first-degree reckless homicide, delivery of counterfeit heroin, and from two counts of delivery of heroin. He also appeals an order denying his postconviction motion in which he alleged ineffective assistance of trial counsel. Steed argues: (1) the trial court erroneously exercised its discretion when it denied his request for a continuance; (2) the court erroneously exercised its discretion when it denied Steed's request to discharge his trial counsel without inquiring whether he wanted to represent himself; (3) Steed's counsel was ineffective for failing to object to the jury instruction on first-degree reckless homicide; and (4) counsel was ineffective for failing to seek severance of the homicide charge from the drug charges. We reject these arguments and affirm the judgment and order.
  • Criminal Law/ Pleas/ Constitutional Law/ Seizure/ Warrants/ Consent/ Constitutional Law/ Privacy/ Property

    State v. Ramage
    Docket: 2009AP000784 05-18-10
    FINE, J. David D. Ramage appeals a judgment entered on pleas permitted by North Carolina v. Alford, 400 U.S. 25, 32­37 (1970) (A defendant may accept conviction even though he or she protests innocence.), see State v. Garcia, 192 Wis. 2d 845, 857­858, 532 N.W.2d 111, 115­116 (1995) (Alford pleas are permitted in Wisconsin.), convicting him of eight counts of unlawfully possessing child pornography, see WIS. STAT. § 948.12(1m), and the order denying his motion for reconsideration. According to the criminal complaint, which was used as the factual bases for Ramage's pleas, the child pornography was on two computers that he owned. He contends that they were seized and searched unlawfully. We affirm.
  • Criminal Law/ Sentencing/ Sentencing Modification

    State v. Weidner
    Docket: 2009AP001514 05-19-10
    PER CURIAM. Kevin Weidner appeals pro se from orders denying his WIS. STAT. § 974.06 (2007-08), motion and motion for sentence modification. He contends the circuit court erred in concluding that he had previously raised the issues in his motions and waived those issues when he withdrew his 2000 postconviction motion. We affirm the orders.
  • Criminal Law/ Statutes/ Judicial Authority-Discretion/ Mental Health/ Evidence

    State v. Vandeberg
    Docket: 2009AP001754 05-19-10
    PER CURIAM. Keith C. Vandeberg appeals from the orders denying his motions for conditional release and postconviction relief. Vandeberg argues that the record does not support the circuit court's finding that he continues to be a danger to himself or others, and that the circuit court erroneously exercised its discretion when it considered the statutory factors and denied his motion for conditional release. Because we conclude that the circuit court properly exercised its discretion under WIS. STAT. § 971.17(4) (2007-08), we affirm.
  • Criminal Law/ Traffic Stops/ Reasonable Suspicion/ Evidence/ Probable Cause Constitutional Law/ Speedy Trial/ Defendant's Competency

    State v. Thiel
    Docket: 2009AP000802 05-19-10
    PER CURIAM. Timothy C. Thiel appeals pro se from a judgment convicting him of one count each of possession of tetrahydrocannabinol (THC), second or greater offense, and manufacture/delivery of THC. None of his appellate arguments are persuasive. We affirm.
  • Family Law/ Divorce/ Maintenance/ Child Support/ Stipulations/ Taxation/ Judicial Authority-Discretion

    Ladwig v. Ladwig
    Docket: 2009AP001202 05-19-10
    Recommended for Publication
    NEUBAUER, P.J. This appeal after remand stems from the 2006 divorce of Daniel Ladwig and Judith Ladwig. Following an appeal from the original judgment of divorce and postjudgment order, this court reversed the trial court's maintenance and child support determinations and remanded for further proceedings. Based on a stipulation by the parties, the remand court did not conduct a trial on the remanded issues, but rather exercised its discretion based on the existing record. Daniel now appeals from the trial court order on remand, which increased both his maintenance and child support obligations. Daniel challenges the remand court's order, arguing that the awards are excessive and that the remand court erred in making credibility determinations independent of the original trial court. We reject Daniel's arguments. We conclude that when the parties stipulate that a remand court conducting further proceedings may base its decision on the existing record, that court's exercise of discretion may be wholly independent of the original court, including determining credibility and the weight given to evidence in the written record. We further conclude that the remand court properly exercised its discretion in determining both maintenance and child support.
  • Family Law/ Divorce/ Maintenance/ Income Source

    Wright v. Wright
    Docket: 2009AP001160 05-18-10
    PER CURIAM. Linda C. Wright appeals a non-final order of the circuit court, which limited the scope of proceedings on remand following our opinion in an earlier appeal. See Wright v. Wright, 2008 WI App 21, 307 Wis. 2d 156, 747 N.W.2d 690. We agree with Ms. Wright that the restrictions imposed by the order are inconsistent with our prior mandate. We therefore reverse the order and remand the cause for further proceedings.
  • Hunting/ DNR Regulations/ Evidence

    State v. Blinkwolt
    Docket: 2009AP001608 05-18-10
    BRUNNER, J. The State of Wisconsin appeals from a judgment finding Gary Blinkwolt not guilty of hunting over illegal deer bait contrary to WIS. ADMIN. CODE § NR 10.07(2) (Oct. 2009). The State contends Blinkwolt failed to sufficiently prove he was engaged in a normal agricultural practice and therefore exempt from § NR 10.07(2)'s prohibition. Based on the evidence presented, we conclude a reasonable trier of fact could find Blinkwolt was engaged in the normal agricultural practice of composting. Consequently, we affirm.
  • Inmates/ Constitutional Law/ Small Claims/ Summary Judgment/ Department of Corrections (DOC)/ Immunity

    Lacy v. Huibregtse
    Docket: 2008AP001870 05-20-10
    HIGGINBOTHAM, J. Johnny Lacy, Jr., an inmate at the Wisconsin Secure Program Facility (WSPF) in Boscobel, appeals the summary judgment dismissal on sovereign immunity grounds of his 42 U.S.C. § 1983 small claims action against Peter Huibregtse, Kelly Trumm and Steven Casperson of the Wisconsin Department of Corrections (DOC). Lacy alleges that these officials infringed upon his First Amendment rights by adopting policies that deny inmates access to commercially produced photographs and that limit the number of photographs inmates may possess, and by not delivering to him certain risqué photographs that Lacy maintains are not pornography as the term is defined by the DOC policy prohibiting pornography in correctional institutions.
  • Insurance/ Negligence/ Evidence Ruling/ Procedure/ Safe Place Statute/ Statute Of Repose/ Summary Judgment

    Anthony v. Erie Insurance
    Docket: 2009AP000259 05-18-10
    PER CURIAM. Joseph Anthony appeals a judgment, following a jury trial, dismissing his negligence claims against John and Debbie Buckmaster and Pierce Lewis. Anthony argues he is entitled to a new trial because the circuit court made several evidentiary errors and improperly restricted his closing argument. He also contends the court erred by granting summary judgment in favor of the Buckmasters on one of his claims and by denying his request for default judgment against Lewis. We affirm.
  • OWI/ Detention/ Arrest/ Constitutional Law/ Probable Cause/ Evidence/ De Facto Arrest

    State v. Dewitt
    Docket: 2009AP002393 05-20-10
    VERGERONT, J. Cody Dewitt appeals the judgment of conviction for operating a motor vehicle while intoxicated (OWI) and operating with a prohibited alcohol concentration (PAC) of .08 or more, in violation of WIS. STAT. § 346.63(1)(a) and (b) (2007-08), second offense. He contends that his detention by an off-duty police officer for ninety minutes until the arresting officer arrived was not a de facto arrest supported by probable cause, as the circuit court ruled, but rather was an unreasonably long investigative detention. According to Dewitt, the circuit court therefore erred in denying his motion to suppress evidence. For the reasons we explain below, we conclude that the investigative detention was not unreasonably prolonged, and we affirm on this ground.
  • OWI/ Reasonable Suspicion/ Traffic Stops

    State v. Miske
    Docket: 2009AP002841 05-19-10
    ANDERSON, J. We reject Michael S. Miske's claim that law enforcement officers lacked reasonable suspicion to stop and detain him on an unlit back country road while they were investigating a report of a battery by a member of a motorcycle gang known to be prone to violence. The officer's questioning of Miske, after he voluntarily stopped at the scene of an investigation, was reasonable because it promoted the general public interests of ensuring officer safety and obtaining identifying information. Therefore, we affirm.
  • OWI/ Search & Seizure/ Curtilage/ Warrants/ Community Caretaker Function/ Constitutional Law

    State v. Jenkins
    Docket: 2009AP002918 05-19-10
    ANDERSON, J. Dale W. Jenkins insists that there were no exigent circumstances that supported the warrantless entry of two Fond du Lac county sheriff's deputies onto the curtilage of his residence. We reject his argument. We conclude that a deputy would reasonably believe, under the facts known when he entered the curtilage without a warrant, that Jenkins was injured in an earlier accident and his health was endangered. Consequently, we affirm the denial of his suppression motion.
  • Property/ Foreclosure/ Mortgage/ Priority/ Contracts/ Summary Judgment/ Statutes/ Judicial Authority-Discretion

    First Bank of Highland Park v. Summer Haven
    Docket: 2009AP000669 05-19-10
    Recommended for Publication
    First Bank of Highland Park v. Summer Haven
    Docket: 2009AP001878 05-19-10
    Recommended for Publication
    NEUBAUER, P.J. In this mortgage foreclosure action, Vito and Marta Gieron, pro se, appeal from a grant of summary judgment in favor of First Bank of Highland Park ("the bank") and from the order denying their motion for reconsideration. Because we agree with the circuit court that the Gierons' mortgage was recorded second entitling the bank to priority and that the Gierons contractually agreed that their mortgage was second to the bank's, we affirm.
  • Property/ Unjust Enrichment/ Damages/ Equitable Lien/ Laches/ Taxations/ Summary Judgment/ Judicial Authority-Discretion

    Buckett v. Jante
    Docket: 2009AP002709E 05-18-10
  • Small Claims/ Contempt/ Burden Of Proof

    Williams v. Janell Enterprises
    Docket: 2009AP001811 05-18-10
    FINE, J. David L. A. Williams appeals, pro se, the circuit court's small-claims order denying his motion to hold Janell Enterprises in contempt.
  • Wrongful Death/ Insurance/ Verdicts/ New Trial/ New Claim/ Judicial Authority-Discretion

    Benjamin v. West Bend Mutual
    Docket: 2009AP000719 05-18-10
    PER CURIAM. Tyler Benjamin, by his guardian ad litem, appeals from a judgment, entered following a jury trial, dismissing his wrongful death action for the loss of his father, Donald Benjamin. Tyler's complaint alleged his mother, Patricia Benjamin, negligently caused a one-car accident in which both parents were ejected from the vehicle and killed. The jury, asked in separate questions whether Donald or Patricia was driving at the time of the accident, answered, "No" to each, and also found neither parent negligent. Tyler filed postverdict motions for a new trial in the interest of justice and to amend his complaint. Both were denied.
Links
Also of Interest
Insurance company must provide coverage under 'hit-and-run' policy term, supreme court holds
An automobile insurance policy that does not clearly define the term "hit-and-run" will be construed in favor of coverage, the Wisconsin supreme court recently held. More

Appeals court decides Sierra Club-DNR dispute on permit for coal-fired power plant
On review to the District 4 court of appeals, the Wisconsin Department of Natural Resources (DNR) survived all but one Sierra Club challenge to an air pollution permit for operations at a coal-fired power plant. More

Hunters are trespassers, not adverse possessors, appeals court holds
Trespassers who hunted on another’s land for more than 20 years did not acquire the land by adverse possession, the Wisconsin court of appeals recently held. More

Books Unbound

UPDATE, UNSUBSCRIBE, WHITELIST
To update your email address for all State Bar electronic communications and the Wisconsin Lawyer Directory, email Customer Service, or call (800) 728-7788. Please include your name, email, and Bar number, if applicable.
CONTACT
Questions concerning this mailing list or the State Bar of Wisconsin's Web site should be directed to the webmaster.
CaseLaw Express is published by the State Bar of Wisconsin,
5302 Eastpark Blvd.,
Madison, WI, 53718-2101,
http://www.wisbar.org/express/
(800) 728-7788.
DISCLAIMER
Due to the rapidly changing nature of the law and our reliance on information provided by outside sources, we make no warranty or guarantee concerning the accuracy or completeness of the content.
© 2010, State Bar of Wisconsin