Inside Track: Wisconsin Supreme Court: 2018-19 Stats and Summaries:

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  • Wisconsin Supreme Court: 2018-19 Stats and Summaries

    The Wisconsin Supreme Court issued 54 authored decisions in the 2018-19 term. This article provides statistics and analysis, as well as insights from civil and criminal lawyers, with the holdings and votes in all 54 decisions.

    Joe Forward

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    Wisconsin Supreme Court

    Aug. 7, 2019 – The Wisconsin Supreme Court concluded its 2018-19 term, issuing its final substantive decision last month. Not including attorney discipline cases, the state supreme court issued 54 authored decisions, down from 63 decisions last year.

    Alan Ball, a Marquette University history professor who compiles Wisconsin Supreme Court-related statistics at his blog, SCOWStats, has completed his analysis for the 2018-19 term, noting vote splits and judicial alignments in both criminal and civil cases.

    Many of those statistics are included in this article, with summaries of major decisions of the term as well as insight from litigator Susan Tyndall, a shareholder at Habush, Habush & Rottier S.C., and Michael Tobin, former deputy state public defender.

    The article also includes the holdings of every case during the term, as well as information about the voting splits and the justices who wrote separate opinions.

    First and Last, New and Renew

    The court issued 16 criminal case decisions and 38 civil case decisions, with unanimous decisions (7-0, 6-0, or 5-0) in almost half of all cases (26 of 54). The court decided 10 cases by 4-3 vote, 11 by 5-2, 4-2, or 3-2 vote, and seven by a 6-1, 5-1, or 4-1 vote.

    Joe Forwardorg jforward wisbar Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by org jforward wisbar email or by phone at (608) 250-6161.

    While it was the first year of service for Justice Rebecca Dallet, it was the last year for Justice Abrahamson, who enters retirement after four consecutive, 10-year terms. Abrahamson served a total of 43 years on the court.

    Facing a cancer diagnosis that she publicly announced at the beginning of the 2018-19 term, Justice Abrahamson’s participation was somewhat limited this term.

    She did not participate or withdrew from participation in 14 cases (26 percent), wrote five majority opinions, two concurrences, and just one dissenting opinion. As Professor Ball notes, Abrahamson averaged 23 separate writings in the previous five terms.

    Justice Abrahamson’s absences are likely the primary reason the court’s overall number of separate writings (53) dropped substantially this term, as compared to previous terms. Last term, for instance, the justices filed 73 separate writings.

    “After Justice Abrahamson’s departure, the trend of fewer separate writings seems likely to continue,” said litigator Susan Tyndall. “Judge Diane Sykes of the Seventh Circuit, speaking about Justice Abrahamson’s impact on Wisconsin law in June 2019, said that even when they disagreed, Justice Abrahamson’s arguments made Judge Sykes’ work better. After Justice Abrahamson’s departure, the separate writings we have seen in recent years indicate that trend should continue.

    “Further, as was pointed out in the November 2018 Wisconsin Lawyer article, “The State of Stare Decisis in Wisconsin,” the number of cases which have been overruled has spiked, and I expect that this trend, too, will continue.”

    Appeals Court Judge Brian Hagedorn, who won an election to the supreme court last April, will be the newest justice when court begins its 2019-20 term in September. Justice Daniel Kelly, appointed to the court in 2016, will face his first election next term.

    Chief Justice Patience Roggensack will continue as chief justice. Under the Wisconsin Constitution, the justices select a chief justice every two years. In May, the justices elected Roggensack to a third term. She has served as chief justice since 2015.

    The 2019-20 Wisconsin Supreme Court

    Chief Justice Patience Roggensack

    • 17th year on the WI Supreme Court
    • First elected in 2003
    • Last elected in 2013
    • Faces third election in 2023

    Justice Ann Walsh Bradley

    • 24th year on the WI Supreme Court
    • First elected in 1995
    • Last elected in 2015
    • Faces fourth election in 2025

    Justice Annette Kingsland Ziegler

    • 13th year on the WI Supreme Court
    • First elected in 2007
    • Last elected in 2017
    • Faces third election in 2027

    Justice Rebecca Bradley

    • 5th year on the WI Supreme Court
    • Appointed in 2015
    • Elected in 2016
    • Faces second election in 2026

    Justice Daniel Kelly

    • 4th year on the WI Supreme Court
    • Appointed in 2016
    • Faces first election in 2020

    Justice Rebecca Dallet

    • 2nd year on the WI Supreme Court
    • Last elected in 2018
    • Faces second election in 2028

    Justice Brian Hagedorn

    • 1st year on the WI Supreme Court
    • Last elected in 2019
    • Faces second election in 2029

    Criminal Cases

    The court issued 54 authored decisions and four per curiam (by the court as a whole) decisions. Only 16 of the 54 authored decisions (29.6 percent) were criminal cases. Last term, 27 of the court’s 63 decisions (43 percent) were criminal cases.

    The last time the court’s criminal case output fell below 30 percent was the 2010-11 term, in which the court decided 44 civil cases and 18 criminal cases.

    Of the 16 criminal cases decided this term, nine (56 percent) were unanimous (7-0 or 6-0) decisions, but six of the nine unanimous decisions drew separate writings. Last term, the court was unanimous in just 41 percent of criminal cases (11 of 27).

    “Overall, the court continues to rule overwhelmingly for the prosecution,” said retired Deputy State Public Defender Michael Tobin, noting the supreme court upheld a decision for the prosecution in 14 of the 16 criminal cases.

    For instance, in State v. Pinder, a 7-0 court upheld a search warrant for the placement of a GPS tracking device on a vehicle even though a warrant was not executed within five days. Justice Daniel Kelly, with Justice Rebecca Bradley, joined the majority opinion except to the extent that it urged the legislature to pass legislation in this area.

    In State v. Wright, the supreme court unanimously (7-0) ruled that police did not violate a motorist's Fourth Amendment rights when they asked whether he had any weapons in the vehicle and had a concealed carry permit.

    “This case shows the continued success of law enforcement and prosecutors in advancing an expansive scope of police inquiries following a traffic stop,” said Tobin.

    “The decision is perhaps more noteworthy for its unanimity and authorship. Justice Abrahamson followed state and federal precedent regarding the ‘mission’ of a stop as including questions, and follow-up, reasonably related to officer safety.”

    In State v. Trammell, the court unanimously ruled (6-0) that a standard “burden of proof" jury instruction did not unconstitutionally reduce the state’s burden of proof.

    “In this case, the defendant unsuccessfully challenged the standard jury instruction on proof beyond a reasonable doubt on the basis of two recent studies,” Tobin explained.

    “The court unanimously rejected the challenge. However, the issue can still be raised in circuit courts, because individual judges have discretion to amend a standard instruction as long as it correctly states the underlying reasonable-doubt requirement.”

    And State v. Fitzgerald clarified the standard for an order for involuntary medication of a defendant who has been found incompetent to stand trial.

    “This case clarifies the standards for an order for involuntary medication of a defendant who has been found incompetent to stand trial,” Tobin said.

    “The decision provides guidance on the substantive requirements to practitioners and judges, although a 3-3 split over stay procedures, without much discussion or guidance, seemingly requires that defense attorneys bring a notice of appeal to circuit court to file immediately after an involuntary medication order is entered.”

    Two other criminal cases were 4-3 decisions, and three others were decided by 5-2 or 4-2 votes. In State v. Wayerski, a majority concluded the state did not violate the defendant’s due process rights when prosecutors failed to disclose impeachment evidence, overruling cases decided under Brady v. Maryland, 373 U.S. 83 (1963).

    While three other justices (Ziegler, Roggensack, Kelly) agreed that a so-called Brady violation did not occur, they dissented to other aspects of the majority’s opinion.

    “Although the conviction was unanimously upheld, a 4-3 majority interpreted the Brady rule on exculpatory evidence in a manner favorable to the defense,” Tobin said.

    In State v. Fugere, a four-justice majority held that a circuit court is not required to inform a defendant who enters a guilty plea of not guilty by reason of mental disease or defect (NGI plea) about the maximum possible term of civil commitment.

    Three justices dissented (A.W. Bradley, Abrahamson, Dallet), concluding the defendant received incorrect information and was thus “deprived of essential information regarding the implications of his NGI plea.” The dissenters also said the error was not harmless.

    In State v. Reed, six justices agreed that evidence was properly suppressed because neither consent nor exigent circumstances justified a warrantless entry into an apartment. Chief Justice Roggensack was the lone dissenter.

    In State v. Randall, five justices ruled that a defendant arrested for intoxicated driving has no protected privacy interest in a blood sample that has been constitutionally obtained, and thus could not revoke consent after the sample was taken.

    Justice A.W. Bradley was the lone dissenter. She concluded that “a person does not lose the reasonable expectation of privacy in the contents of one’s own blood after it is seized by law enforcement,” and the blood test results should have been suppressed.   

    Civil Cases

    Of the court’s 54 decisions, 38 were civil cases. Of those, 12 were decided by a unanimous 7-0 vote, and seven of those were unanimous with no separate writings.  

    For instance, in Secura Ins. v. Lyme St. Croix Forest Co., the court unanimously agreed that a forest fire that spread over multiple properties, affecting different property owners, was a single occurrence for purposes of commercial liability insurance coverage.

    And in MacLeish v. Boardman & Clark LLP, the court unanimously upheld the general rule of nonliability of lawyers to non-clients, except in narrow instances involving the drafting and execution of a will as well as the administration of an estate.

    In five other 7-0 decisions, the court voted unanimously, but justices filed separate concurrences to depart on rationale or offer supplemental or differing perspectives.

    “Separate writings help counsel to identify arguments that might provide better results in future cases and weak arguments best abandoned,” Tyndall said.

    “They also signal the direction that the individual justices would prefer the law to take in the future, permitting counsel to tailor their arguments in hopes of persuading a majority to adopt their contentions in future cases.”

    For instance, in Engelhardt v. City of New Berlin, the court unanimously held that the “known danger exception” barred the city’s governmental immunity defense.

    Justice Dallet, joined by Justices Kelly and R. Bradley, wrote a separate concurrence, arguing that the known danger exception did not apply. Instead, those concurring justices applied the plain language of the government immunity statute.

    In Michels v. Lyons, the court unanimously ruled that Wisconsin’s grandparent visitation statute – giving grandparents visitation rights to grandchildren in some circumstances – was unconstitutionally applied because a grandmother did not meet her burden of proof.

    Justice R. Bradley, joined by Justice Kelly, wrote a separate concurrence to argue that the grandparent visitation statute is facially unconstitutional because it interferes with parents’ fundamental constitutional right to raise their own children.

    “Appellate counsel are always encouraged to tailor their arguments to the justices on the court,” Tyndall said. “If they understand that a particular justice finds an argument unpersuasive, they can modify or abandon the argument in hopes of making their case persuasive overall. And vice-versa – counsel might also rely more heavily on arguments that the justices have found persuasive in the past.”

    In other cases, the justices were clearly divided. For instance in Tikalsky v. Friedman, a four-justice majority held that a constructive trust is a remedy, not a cause of action, so the defendant was properly dismissed from the action.

    Justice Ziegler wrote a concurrence. Chief Justice Roggensack wrote a dissent, and Justice A.W. Bradley wrote a separate dissent, joined by Justice Abrahamson.

    In Paynter v. ProAssurance Wisconsin Ins. Co., four justices held that Wisconsin’s “borrowing statute” – which can trigger application of another states’ shorter statute of limitations period in “foreign causes of action” – did not bar a medical malpractice suit.

    Three other justices agreed that the borrowing statute did not apply to bar the lawsuit. But Justice A.W. Bradley dissented on the issue of informed consent. Justice R. Bradley, joined by Justice Kelly, agreed that the lawsuit was not barred. But those two justices did not agree with the tests the majority adopted to make the determination.

    “Cases with recent 4-3 decisions seem quite likely to be relitigated, particularly given the changes in the court’s composition and the recent spike in the number of cases overturned,” Tyndall noted. “These factors encourage appellate counsel to try again in hopes of more favorable rulings.”

    High Profile

    The more high profile cases decided by the court involved the Wisconsin Legislature. In League of Women Voters v. Evers, the court upheld (4-3) legislation that passed during a lame duck extraordinary session, as well as 82 of then-Gov. Scott Walker’s appointments.

    A four-justice majority concluded that the actions taken in the extraordinary session did not violate the Wisconsin Constitution because the legislature had the power and authority to establish extraordinary sessions during the legislative term.

    Three justices dissented (Dallet, Abrahamson, A.W. Bradley), arguing that legislative acts passed during the extraordinary session were unconstitutional because the legislature had adjourned for the legislative term and had no legal basis to reconvene.

    In Koschkee v. Taylor, a 4-2 majority upheld the governor’s legislative authority to reject administrative rules promulgated by the state’s superintendent of public schools. The decision overrules a prior 2016 decision that said the governor could not do so.

    Justice Abrahamson did not participate. But Justices A.W. Bradley and Dallet dissented, concluding that the “doctrine of stare decisis applies here with full force.”

    Other Insights

    Professor Ball noted the court issued just two “fractured” decisions, “in which fewer than four justices can agree on the reasoning for the court’s ruling.” Ball noted such cases “have no precedential value” and “can leave important issues unresolved.”

    In his statistics, Ball also highlights the most frequent alliances between justices, as well as the justices most frequently at odds. On one end of the spectrum was Justice A.W. Bradley, who wrote 14 dissents this term, by far the most of any other justice.

    A.W. Bradley aligned most frequently with Justice Abrahamson and Justice Dallet, and aligned least frequently with Chief Justice Roggensack and Justice Annette Ziegler.

    For instance, in non-unanimous decisions, Justice A.W. Bradley agreed with Chief Justice Roggensack and Justice Ziegler in less than 20 percent of cases; 60 percent in all cases.

    Chief Justice Roggensack and Justice Ziegler aligned in 96 percent of all cases, the strongest alliance of all justices, followed by Justice R. Bradley and Justice Kelly, who aligned in 93 percent of all cases.

    With Justice Abrahamson’s departure, the court loses 43 years of judicial experience. Coming into the 2019-20 term, Justice A.W. Bradley will be the longest serving justice (23 years), followed by Chief Justice Roggensack (16), and Justice Ziegler (12).

    The remaining four justices will have a combined total of eight years of experience on the bench, an indication that the Wisconsin Supreme Court has reached a new era.

    Wisconsin Supreme Court Holdings and Votes, 2018-19
    Civil Case Decisions1

    1. Steadfast Ins. Co v. Greenwich Ins. Co., 2019 WI 6 (Jan. 25, 2019).

    HOLDING: An insurer was contractually obligated to cover losses for claims timely filed; it also had a duty to defend, and it was responsible for prorated attorney fees.

    VOTE: 4-3. A.W. BRADLEY, J. concurs and dissents, joined by DALLET, J. (opinion filed). R.G. BRADLEY, J. concurs and dissents (opinion filed).

    2. Marx v. Morris, 2019 WI 34 (April 2, 2019).

    HOLDINGS:) 1)Members of a limited liability company (LLC) have standing to assert individual claims against other members and managers. 2) Principles of derivative standing do not apply to “the distinct business form of an LLC.” 3) The plaintiffs’ common-law claims survive. 4) Genuine issues of material fact remain for trial.

    VOTE: 4-3. KELLY, J. concurs and dissents, joined by ABRAHAMSON, J. and R.G. BRADLEY, J. (opinion filed).

    3. Portage County v. J.W.K., 2019 WI 54 (May 21, 2019).

    HOLDING: The respondent’s sufficiency-of-the-evidence challenge to an earlier mental recommitment order was moot because the earlier order expired after the circuit court extended the recommitment under a separate order.

    VOTE: 4-3. DALLET, J., concurs and dissents, joined by ABRAHAMSON, J. and A.W. BRADLEY, J. (opinion filed).

    4. Tikalsky v. Friedman, 2019 WI 56 (May 23, 2019).

    HOLDING: A constructive trust is a rem­edy, not a cause of action, so the circuit court properly dismissed a defendant from this action.

    VOTE: 4-3. ZIEGLER, J. concurs (opinion filed). ROGGENSACK, C.J. dissents (opinion filed). A.W. BRADLEY, J. dissents, joined by ABRAHAMSON, J. (opinion filed).

    5. Paynter v. ProAssurance Wisconsin Ins. Co., 2019 WI 65 (June 7, 2019).

    HOLDING: Wisconsin’s “borrowing statute” (Wis. Stat. § 893.07) – which can trigger application of another states’ shorter statute of limitations period for “foreign causes of action” – did not bar a medical malpractice lawsuit alleging a negligent failure to diagnose.

    VOTE: 4-3. A.W. BRADLEY, J. concurs and dissents (opinion filed). R.G. BRADLEY, J. concurs and dissents, joined by KELLY, J. (opinion filed).

    6. Waukesha County v. S.L.L., 2019 WI 66 (June 12, 2019).

    HOLDING: For purposes of personal jurisdiction in a Chapter 51 proceeding, an extension hearing is a continuation of the original commitment proceeding and previous extension hearings.

    VOTE: 4-3. A.W. BRADLEY, J. dissents, joined by ABRAHAMSON, J. and DALLET, J. (opinion filed).

    7. Pinter v. Village of Stetsonville, 2019 WI 74 (June 20, 2019).

    HOLDING: In determining whether a village was immune from a lawsuit alleging negligence and private nuisance on the basis of governmental immunity, an oral policy on water pumping did not rise to a level of a ministerial duty that would preclude governmental immunity.

    VOTE: 4-3.DALLET, J. dissents, joined by R.G. BRADLEY, J. and KELLY, J. (opinion filed).  

    8. League of Women Voters of Wisconsin v. Evers, 2019 WI 75 (June 21, 2019).

    HOLDING: The Wisconsin Legislature’s “extraordinary session” did not violate the Wisconsin Constitution.

    VOTE: 4-3. DALLET, J. dissents, joined by ABRAHAMSON, J., and A.W. BRADLEY, J. (opinion filed).

    WISBAR SUMMARY: Wisconsin Supreme Court Majority Upholds Legislature’s Extraordinary Session (June 24, 2019).

    9. Koss Corp. v. Park Bank, 2019 WI 7 (Jan. 29, 2019).

    HOLDING: Absent proof that a bank had engaged in bad faith when processing transactions by a customer’s embezzling employee, the bank was not liable for the money the embezzler stole.

    VOTE: 5-2. A.W. BRADLEY, J. concurs, joined by ABRAHAMSON, J., and DALLET, J. (opinion filed). KELLY, J. dissents joined by R.G. BRADLEY, J. (opinion filed).

    WISBAR SUMMARY: Supreme Court: Bank Not Liable for Embezzlement by Client’s Employee (Jan. 29, 2019).

    10. State v. C.L.K., 2019 WI 14 (Feb. 19, 2019)

    HOLDING: The circuit court committed structural error when it granted a directed verdict in the grounds phase of a termination of parental rights bench trial without giving the respondent parent an opportunity to present his own case in chief.

    VOTE: 4-2. ROGGENSACK, C.J. dissents, joined by ZIEGLER, J. (opinion filed); DALLET, J. did not participate.

    11. CityDeck Landing LLC v. Circuit Court for Brown County, 2019 WI 15 (Feb. 21, 2019).

    HOLDING: The circuit court lacked authority to issue an order staying arbitration until it had decided an insurance coverage issue.

    VOTE: 4-2. A.W. BRADLEY, J. dissents, joined by ABRAHAMSON, J. (opinion filed); DALLET, J. did not participate.

    12. Milwaukee District Council 48 v. Milwaukee County, 2019 WI 24 (March 19, 2019).

    HOLDING: Within the meaning of the county ordinance under review in this case, union members were not “covered by the terms of a collective bargaining agreement” after that agreement had expired.

    VOTE: 5-2. ZIEGLER, J., dissents, joined by ROGGENSACK, C.J. (opinion filed).

    13. Security Finance v. Kirsch, 2019 WI 42 (April 19, 2019).

    HOLDING: A debtor who is sued for default on a consumer credit transaction without first receiving a notice of a right to cure default under Wis. Stat. ch. 425 is not entitled to damages from the creditor under the Wisconsin Consumer Act.

    VOTE: 4-2. KELLY, J. concurs, joined by R.G. BRADLEY, J. (opinion filed). A.W. BRADLEY, J. dissents, joined by ABRAHAMSON, J. (opinion filed). DALLET, J. did not participate.

    14. Lopez-Quintero v. Dittman, 2019 WI 58 (May 29, 2019).

    HOLDING: The court of appeals may not deny a habeas petition ex parte on the ground that a petitioner failed to dem­onstrate that he or she sought relief in a prompt and speedy manner.

    VOTE: 5-2. KELLY, J. concurs (opinion filed). ROGGENSACK, C.J. dissents, joined by ZIEGLER, J. (opinion filed).

    15. Rural Mutual Ins. Co. v. Lester Buildings, LLC, 2019 WI 70 (June 18, 2019).

    HOLDING: Wis. Stat. § 895.447 did not void a subrogation waiver contained in a building design and construction contract because the waiver did not limit or eliminate tort liability.

    VOTE: 3-2. KELLY, J. dissents, joined by A.W. BRADLEY, J. (opinion filed). ABRAHAMSON, J. withdrew from participation, ZIEGLER, J. did not participate.

    16. Koschkee v. Taylor, 2019 WI 76 (June 25, 2019).

    HOLDING: Upholding the governor’s power, under a legislative act, to reject administrative rules proposed by the Superintendent of Public Instruction (SPI) through the Wisconsin Department of Public Instruction (DPI).

    VOTE: 4-2. R.G. BRADLEY, J., concurs (opinion filed). KELLY, J., concurs (opinion filed). A.W. BRADLEY, J., dissents, joined by DALLET, J., (opinion filed). ABRAHAMSON, J., withdrew from participation.

    WISBAR SUMMARY: Supreme Court Reverses Course on Governor’s Power Over School Rulemaking (June 25, 2019).

    17. Midwest Neurosciences Assocs. LLC v. Great Lakes Neurosurgical Assocs. LLC, 2018 112 (Dec. 19, 2018)

    HOLDINGS: Courts have the duty to determine whether a contract calls for arbitration; when a dispute exists as to whether a second contract without an arbitration clause supersedes a first contract with such a clause, the determination of arbitrability must be decided in the first instance by the circuit court rather than the arbitrator.

    VOTE: 5-1. ABRAHAMSON, J. concurs. R.G. BRADLEY, J. dissents. DALLET, J. did not participate.

    WISBAR SUMMARY: Remand: Circuit Court Must Reconsider Arbitrability in Physicians’ Contract Dispute (Dec. 21, 2018).

    18. Meyers v. Wisconsin Department of Natural Resources, 2018 WI 5 (Jan. 18, 2019).

    HOLDING: The Wisconsin Department of Natural Resources (DNR) lacked authority to unilaterally amend a permit for a lake pier.

    VOTE: 6-1. A. W. Bradley, J. dissents (opinion filed).

    19. Daniel v. Armslist LLC et al., 2019 WI 47 (April 30, 2019).

    HOLDING: A victim of a mass shooting committed by an individual who unlawfully purchased the gun on the internet could not maintain a claim against a website that advertised the firearm for sale by a third party.

    VOTE: 5-1. A.W. BRADLEY, J. dissents (opinion filed). ABRAHAMSON, J. did not participate.

    WISBAR SUMMARY: Supreme Court Dismisses Lawsuit Against Firearm Advertising Website (April 30, 2019).

    20. Leicht Transfer & Storage Co. v. Pallet Central Enterprises, Inc., 2019 WI 61 (May 31, 2019).

    HOLDING: An insurance policy did not cover a forgery and fraud scheme by a supplier.

    VOTE: 6-1. A.W. WALSH, J. dissents (opinion filed).

    21. Enbridge Energy Co., Inc. v. Dane County, 2019 WI 78 (June 27, 2019).

    HOLDING: Insurance conditions imposed by the county in a conditional use permit were rendered unenforceable by a legislative act that prohibits counties from requiring an interstate pipeline operator to obtain additional insurance when the pipeline operating company carries comprehensive general liability insurance with coverage for "sudden and accidental" pollution liability.

    VOTE: 4-1. A.W. BRADLEY, J. dissents. (opinion filed). ABRAHAMSON, J. and DALLET, J. withdrew from participation.

    22. Secura Ins. v. Lyme St. Croix Forest Co., 2018 WI 103 (Oct. 30, 2018).

    HOLDING: A fire that spread over multiple properties was considered a single occurrence for purposes of coverage under a commercial general liability (CGL) policy

    VOTE: 7-0. No separate writings.

    WISBAR SUMMARY: Supreme Court: Cause Theory Limits Insurance Coverage for Forest Fire Damage

    23. Dewitt v. Ferries, 2018 WI 117 (Dec. 27, 2018).

    HOLDING: The plaintiffs failed to establish that a particular parcel of land is a “cemetery” and thus subject to transfer to the local town for management.

    VOTE: 7-0. No separate writings.

    24. Engelhardt v. City of New Berlin, 2019 WI 2 (Jan. 4, 2019).

    HOLDING: The “known-danger exception” stripped the city of its governmental immunity in a lawsuit brought after the drowning of a minor in a municipal swimming pool.

    VOTE: 7-0. DALLET, J. concurs, joined by R.G. BRADLEY, J. & Kelly, J. (opinion filed).

    WISBAR SUMMARY: Known Danger Exception Bars Governmental Immunity for City of New Berlin (Jan. 4, 2019).

    25. The Yacht Club at Sister Bay Condominium Assoc., Inc. v. Village of Sister Bay, 2019 WI 4 (Jan. 18, 2019).

    HOLDING: The plaintiff failed to serve the defendant village with a timely notice of injury with respect to its nuisance claims against the village.

    VOTE: 7-0. No separate writings.

    WISBAR SUMMARY: Noise Nuisance: Each Concert is a Separate Event for Notice of Injury Purposes (Jan. 24, 2019).

    26. White v. Watertown, 2019 WI 9 (Jan. 31, 2019)

    HOLDING: The provisions of Wis. Stat. chapter 90 for resolving partition fence disputes unambiguously apply to cities.

    VOTE: 7-0. No separate writings.

    WISBAR SUMMARY: Supreme Court Says City Must Resolve Farmland Fencing Dispute (Feb. 13, 2019).

    27. West Bend Mutual Ins. Co. v. Ixthus Medical Supply, Inc., 2019 WI 19 (Feb. 28, 2019).

    HOLDING: An insurer had a duty to defend its insured under a commercial general liability (CGL) policy.

    VOTE: 6-0. ZIEGLER, J. did not participate.

    28. State v. A.L., 2019 WI 20 (March 7, 2019).

    HOLDINGS: 1) A circuit court can resume suspended juvenile delinquency proceedings to reexamine the competency of a juvenile who was initially found not competent and not likely to become competent within statutory time limits. 2) The expiration of a juvenile in need of protection or services (JIPS) order had no bearing on the circuit court’s competency to proceed with the respondent’s delinquency proceedings.

    VOTE: 7-0. KELLY, J. concurs (opinion filed).

    29. The Peter Ogden Family Trust of 2008 v. Board of Review for the Town of Delafield, 2019 WI 23 (March 14, 2019).

    HOLDING: For land to be classified as “agricultural land” for property tax purposes, a business purpose is not required.

    VOTE: 7-0. DALLET, J. concurs, joined by A.W. BRADLEY, J. (opinion filed).

    30. Kieninger v. Crown Equipment Corp., 2019 WI 27 (March 20, 2019).

    HOLDING: Statutes and regulations did not require an employer to pay employees for the time the employees spent commuting between their homes and a job site in a company-owned vehicle.

    VOTE: 7-0. No separate writings.

    31. MacLeish v. Boardman & Clark LLP, 2019 WI 31 (March 26, 2019).

    HOLDING: The court upheld the general rule of nonliability of a lawyer to a nonclient, except in narrow instances involving the drafting and execution of a will as well as the administration of an estate.

    VOTE: 7-0. No separate writings.

    WISBAR SUMMARY: State Supreme Court Rules for Law Firm in Estate Administration Case (March 27, 2019).

    32. Town of Lincoln v. City of Whitehall, 2019 WI 37 (April 17, 2019).

    HOLDING: The municipal annexation in this case was not a petition for direct annexation by unanimous approval.

    VOTE: 7-0. No separate writings.

    33. Maple Grove Country Club Inc. v. Maple Grove Estates Sanitary Dist., 2019 WI 43 (April 23, 2019).

    HOLDING: Another party’s noncompliance with the notice-of-claim statute is an affirmative defense that must be set forth in a responsive pleading.

    VOTE: 6-0. ABRAHAMSON, J. did not participate.

    34. Town of Rib Mountain v. Marathon County, 2019 WI 50 (May 16, 2019).

    HOLDING: Marathon County may estab­lish a rural naming or numbering system in towns within the county; Wis. Stat. section 59.54(4) does not restrict this exercise of authority to only rural areas within the towns.

    VOTE: 5-0. ABRAHAMSON, J. and A.W. BRADLEY, J. did not participate.

    35. Michels v. Lyons, 2019 WI 57 (May 24, 2019).

    HOLDING: The grandparent visitation statute is facially constitutional but was unconstitutional as applied in this case.

    VOTE: 7-0. R.G. BRADLEY, J. concurs, joined by KELLY, J. (opinion filed).

    WISBAR SUMMARY: Supreme Court Sides with Parents in Grandparent Visitation Case (May 29, 2019).

    36. Teske v. Wilson Mutual Ins. Co., 2019 WI 62 (June 4, 2019).

    HOLDING: Most claims raised in this law­suit were barred by claim preclusion.

    VOTE: 6-0. ABRAHAMSON, J. did not participate.

    37. United States v. Franklin, 2019 WI 64 (June 6, 2019).

    HOLDING: The locational alternatives in Wis. Stat. section 943.10(1m)(a)-(f) identify alternative means of committing one ele­ment of the crime of burglary under the statute, so a unanimous finding of guilt be­yond a reasonable doubt as to subsections (a)-(f) is not necessary to convict.

    VOTE: 7-0. ABRAHAMSON, J. concurs (opinion filed).

    INSIDETRACK SUMMARY: Wisconsin and U.S. Supreme Courts Clarify Burglary Provisions (June 19, 2019).

    38. L.G. v. Aurora Residential Alternatives, Inc., 2019 WI 79 (June 28, 2019).

    HOLDING: A circuit court order denying a request to compel arbitration and stay a pending lawsuit was final for purposes of appeal.

    VOTE: 5-0. ABRAHAMSON, J. and A.W. BRADLEY, J. withdrew from participation.

     

    Wisconsin Supreme Court Holdings and Votes, 2018-19
    Criminal Case Decisions

    1. State v. Wayerski, 2019 WI 11 (Feb. 7, 2019).

    HOLDINGS: 1) The state did not violate Brady v. Maryland when it failed to disclose certain evidence that could have been used to impeach one of its witnesses. 2) The defendant failed to establish that he was denied the effective assistance of counsel at his trial.

    VOTE: 4-3. ZIEGLER, J. concurs and dissents, joined by ROGGENSACK, C.J. (opinion filed). KELLY, J. concurs and dissents, (opinion filed).

    2. State v. Fugere, 2019 WI 33 (March 28, 2019).

    HOLDINGS: 1) A circuit court is not required to inform a defendant who enters a plea of not guilty by reason of mental disease or defect (NGI) about the maximum possible term of civil commitment. 2) The circuit court’s provision of erroneous information about the maximum period of civil commitment the defendant faced on his NGI plea was harmless error.

    VOTE: 4-3. A.W. BRADLEY, J. dissents, joined by ABRAHAMSON, J. and DALLET, J. (opinion filed).

    3. State v. Friedlander, 2019 WI 22 (March 12, 2019).

    HOLDING: The defendant was not entitled to sentence credit for time when he was at liberty and not subject to an escape charge.

    VOTE: 5-2. ABRAHAMSON, J. dissents (opinion filed). A.W. BRADLEY, J. dissents (opinion filed).

    4. State v. Schwind , 2019 WI 48 (May 3, 2019).

    HOLDING: Circuit courts lack inherent authority to reduce or terminate a term of probation.

    VOTE: 4-2. DALLET, J. concurs and dissents, joined by A.W. BRADLEY, J. (opinion filed).

    WISBAR SUMMARY: Decision: Courts Don’t Have Inherent Authority to Terminate Probation Early (May 16, 2019).

    5. State v. Cooper, 2019 WI 73 (June 20, 2019).

    HOLDING: Subsequent disciplinary decision against criminal defense attorney had no material effect in determining whether the circuit court erroneously exercised its discretion when denying the defendant’s motion to withdraw a plea based on allegation of attorney misconduct.

    VOTE: 4-2. DALLET, J. dissents, joined by A.W. BRADLEY, J. (opinion filed). ABRAHAMSON, J. did not participate.

    6. State v. Reed, 2018 WI 109 (Dec. 7, 2018).

    HOLDING: Neither consent nor exigent circumstances justified a police officer’s warrantless entry into an apartment.

    VOTE: 6-1. ZIEGLER, J., concurs. ROGGENSACK, C.J., dissents.

    WISBAR SUMMARY: Apartment Search Violated Fourth Amendment, Supreme Court Says (Dec. 10, 2018).

    7. State v. Randall, 2019 WI 80 (July 2, 2019).

    HOLDING: A defendant arrested for intoxicated driving has no protected privacy interest in a blood sample that has been constitutionally obtained, and thus could not revoke her consent.

    VOTE: 5-1. ROGGENSACK, C.J. concurs, joined by ZIEGLER, J. and DALLET, J. (opinion filed). A.W. BRADLEY, J. dissents (opinion filed). ABRAHAMSON, J. withdrew from participation.

    8. State v. Pinder, 2018 WI 106 (Nov. 16, 2018).

    HOLDINGS: 1) Statutory search warrant requirements do not apply to GPS warrants. 2) The warrant authorizing GPS tracking in this case satisfied both the Warrant Clause and the Reasonableness Clause of the Fourth Amendment.

    VOTE: 7-0. Kelly, J., concurs, joined by R.G. Bradley, J.

    WISBAR SUMMARY: Supreme Court Upholds Warrant for GPS Tracking of Suspect’s Vehicle (Nov. 20, 2018).

    9. State v. Braunschweig, 2018 WI 113 (Dec. 21, 2018).

    HOLDINGS: 1) Expunged operating while intoxicated (OWI)-related convictions can be used to enhance the penalties in later OWI-related prosecutions. 2) In a prosecution for second-offense OWI, the existence of a prior OWI-related conviction is not an element of the crime that must be proved to the trier of fact beyond a reasonable doubt; rather, the burden of proof is by a preponderance of the evidence, which may be satisfied with a certified Wisconsin Department of Transportation (DOT) record.

    VOTE: 7-0. No separate writings.

    WISBAR SUMMARY: Supreme Court: Expunged OWI Counts as a Prior OWI Conviction (Jan. 3, 2019).

    10. State v. Wiskerchen, 2019 WI 1 (Jan. 4, 2019).

    HOLDING: The circuit court had the authority to order restitution in this case and did not misuse its discretion when calculating restitution.

    VOTE: 7-0. A.W. BRADLEY, J., concurs, joined by ABRAHAMSON, J. (opinion filed). R.G. BRADLEY, J., concurs (opinion filed).

    WISBAR SUMMARY: Supreme Court Upholds Restitution Amount in Burglary Case (Jan. 8, 2019).

    11. State v. Reinwand, 2019 WI 25 (March 19, 2019).

    HOLDINGS: 1) The victim’s statements were not testimonial hearsay for confrontation purposes. 2) Other-act evidence was properly admitted. 3) Defense counsel was not ineffective at trial.

    VOTE: 7-0. DALLET, J. concurs, joined by ABRAHAMSON, J. and A.W. BRADLEY, J. (opinion filed).

    12. State v. Wright, 2019 WI 45 (April 30, 2019).

    HOLDING: Asking a motorist whether he had any weapons in the vehicle and whether he had a permit to carry a concealed weapon did not violate the motorist’s Fourth Amendment rights.

    VOTE: 7-0. No separate writings.

    WISBAR SUMMARY: Inquiries on Concealed Carry Permit Did Not Unlawfully Extend Traffic Stop (May 21, 2019).

    13. State v. Pegeese, 2019 WI 60 (May 31, 2019).

    HOLDING: Although the circuit court did not individually recite and specifically address each constitutional right the defendant was waiving when he entered a guilty plea, the plea colloquy proceed­ings as a whole reflect that the defendant understood the rights he was giving up.

    VOTE: 6-0. DALLET, J. concurs, joined by A.W. BRADLEY, J. (opinion filed). ABRAHAMSON, J. did not participate.

    14. State v. Trammell, 2019 WI 59 (May 31, 2019).

    HOLDING: Wisconsin’s standard “burden of proof” jury instruction (Wis. J.I.-Criminal 140) does not unconstitutionally reduce the state’s burden of proof below the reasonable-doubt standard.

    VOTE: 6-0. DALLET, J. concurs, joined by A.W. BRADLEY, J. (opinion filed). ABRAHAMSON, J. did not participate.

    15. State v. Hanson, 2019 WI 63 (June 5, 2019).

    HOLDING: Miranda warnings were not required when the defendant testified at a John Doe proceeding; use of the defen­dant’s John Doe testimony did not violate his right to confrontation.

    VOTE: 6-0. ABRAHAMSON, J. did not participate.

    16. State v. Fitzgerald, 2019 WI 69 (June 13, 2019).

    HOLDING: The standard for ordering involuntary medication set forth in Wis. Stat. § 971.14(3)(dm) and (4)(b) is unconstitutional to the extent it requires circuit courts to order involuntary medication based on the standard set forth in paragraph (3)(dm), which does not comport with Sell v. United States, 539 U.S. 166 (2003).

    VOTE: 6-0. ROGGENSACK, C.J. concurs, joined by ZIEGLER, J. (opinion filed). ABRAHAMSON, J. did not participate.

    Endnotes

    1 Most holdings summarized by Marquette University law professors Daniel D. Blinka and Thomas J. Hammer and originally published in the Supreme Court Digest of Wisconsin Lawyer.




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