WisBar News: Supreme court will decide whether litigation expenses appropriate in condemnation case:

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  • Supreme court will decide whether litigation expenses appropriate in condemnation case

    The Wisconsin Supreme Court has accepted review of four new cases, including one which asks the court to decide whether a state statute requires litigation expenses to be awarded to a property owner who conveys property in lieu of condemnation where no jurisdictional offer was ever issued.
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    Jan. 28, 2011 – Supreme court will decide whether litigation 
expenses appropriate in condemnation caseWis. Stat. section 32.28(3)(d) provides that litigation expenses shall be awarded to the condemnee if “the award of the condemnation commission under Wis. Stat. § 32.06(8) exceeds the jurisdictional offer or the highest written offer prior to the jurisdictional offer by at least $700 and at least 15 percent. …”

    The case of Klemm v. American Transmission Co., 2009AP2784 (Aug. 10, 2010), arose from American Transmission Company (ATC)’s request for an easement on Mark and Jeanne Klemms’ property to place high-voltage electric transmission lines.

    ATC obtained an appraisal indicating the easement would decrease the value of the Klemms’ property by $7,750. The Klemms agreed to accept the $7,750 compensation ATC offered in negotiations, with the understanding they had the right to appeal the amount of the award.

    The Klemms conveyed the requested easement, which was recorded along with a certificate of compensation. The Klemms subsequently exercised their right to appeal. They then obtained an appraisal, which they presented to ATC three weeks prior to the condemnation commission hearing. The commission awarded the Klemms just compensation in the amount of $10,000.

    The Klemms then sought litigation expenses in the circuit court, which held that the Klemms were entitled to litigation expenses under Wis. Stat. section 32.28(3)(d), even though they accepted ATC’s negotiated offer and there was, consequently, no jurisdictional offer. ATC appealed, arguing the court misinterpreted § 32.28(3)(d), and the court of appeals reversed.

    A group of attorneys who regularly practice in the field of eminent domain law have filed a motion for leave to file an amicus brief in support of the petition for review.  ATC and amici argue that the court of appeals’ decision will affect many condemnations and will result in different treatment for condemnees who convey their property in lieu of condemnation and similarly situated condemnees who do not.

    The supreme court also accepted review of the following cases:

    State v. Kandutsch, 2009AP1351-CR (Oct. 5, 2010)

    The supreme court will decide whether a report from an electronic monitoring device is admissible evidence without expert testimony as to the scientific validity, accuracy, and reliability of the device.

    Gregg Kandutsch was being supervised under an electronic monitoring program when he injured himself breaking into the home of his estranged wife. Police arrived on the scene, and Kandutch was later convicted of a fifth OWI offense.

    The estranged wife told police Kandutsch had driven to the house in a van parked nearby, and an electronic monitoring device report showed that Kandutsch went out of range approximately 20 minutes before police received at the scene.

    The state relied on a report to argue that, based on the timing of events, the Kandutsch must have been intoxicated by the time he started driving. Kandutsch objected to the admission of the electronic monitoring report, arguing that the state supplied an insufficient foundation and it was inadmissible hearsay. 

    The Marathon County Circuit Court admitted the evidence, concluding they were properly authenticated and generated in the ordinary course of business.

    The District III Wisconsin appeals court affirmed, concluding that the electronic monitoring system’s operation is not so unusually complex or esoteric as to demand the assistance of expert testimony.  The appeals court also concluded that readings generated by a machine are generally excluded from the realm of hearsay because they are not a statement by a declarant. 

    State v. Buchanan, 2009AP2934 (Aug. 10, 2010)

    In this case, the Supreme Court examines issues related to Deandre Buchanan’s conviction for possession of less than 200 grams of THC or less with intent to deliver after police recovered the drug while searching his vehicle during a traffic stop.

    The key issue here is whether case law supports the arresting officer’s decision to use the petitioner’s arrest history as part of the basis for performing a protective search following a routine traffic stop.

     Specifically, Buchanan asks the Supreme Court to review two issues:

    1. Under the totality of the circumstances, did (the state trooper) have an objectively reasonable suspicion that Mr. Buchanan was armed and dangerous?

    2. Did the trial court err in concluding that the marijuana stem found in Mr. Buchanan’s vehicle was in “plain view?”

    State trooper Randy Gordon clocked Buchanan’s vehicle travelling at 78 miles per hour in a posted 65 mile-per-hour zone in March 2009.  After Gordon activated his emergency lights, he noticed Buchanan weaving within the lane.  Using his vehicle’s spotlight, Gordon could see Buchanan moving his shoulder and arm up and down. 

    While checking Buchanan’s license, Gordon learned of a pending charge for possession with intent to deliver.  Gordon also learned that Buchanan had multiple previous arrests for murder, armed robbery and false imprisonment.  Gordon waited for a backup officer before approaching Buchanan again.

    Concerned that Buchanan was armed, the officers opted to conduct a protective search of Buchanan and the portions of the vehicle accessible from the driver’s seat.  The pat-down search produced no weapons.  As Gordon bent down to inspect the area around the driver’s seat, he smelled marijuana and noticed a green plant underneath the ashtray.  Gordon tested the plant, confirmed it was marijuana, and arrested Buchanan. 

    Buchanan moved to suppress the drug evidence.  The circuit court denied the motion.  On appeal, the key issue was whether the protective search violated Buchanan’s constitutional rights because it was not based on reasonable suspicion that he was dangerous.  The court of appeals affirmed and this petition followed.

    State v. West, 2009AP1579 (Aug. 10, 2010)

    The Supreme Court is asked to review statutory and constitutional issues related to Wis. Stat. ch. 980, the state’s law that allows civil commitment for persons deemed to be sexually violent.

    Specifically, Edwin West’s petition raises the following issue: Does 2005 Wis. Act 434 § 118 (codified at Wisconsin Statutes § 980.08(4)(cg)) shift the burden of proof at a supervised release hearing under Chapter 980 to the civilly-committed respondent?

    West was committed under ch. 980 in 1997. In April 2008 he filed a petition for supervised release, which was denied by the circuit court in a decision affirmed by the court of appeals.

    Prior to the effective date of the new legislation on Aug. 1, 2006, the statutory presumption was to grant a petition for supervised release and the state clearly bore the burden to show that release was not warranted.

    West argues that the new statute, which does not explicitly assign the burden of proof, should be similarly interpreted to place the burden on the state. Among other things, he urges that the supervised release provision should be treated like a criminal statute under the rule of lenity and be given a narrow construction in favor of the person whose liberty is at stake.

    In addition, West argues that the statute as modified cannot be interpreted to shift the burden of proof to the committed person because such a shift would violate constitutional due process and equal protection rights.

    West’s petition for review essentially asks this court to review the rules of law established by the Court of Appeals in State v. Rachel, 2010 WI App 60, 324 Wis. 2d 465, 782 N.W.2d 443, which decided the burden of proof and constitutionality issues contrary to the position taken by both Rachel and West. However, Rachel never reached the Wisconsin Supreme Court.

    After conducting an evidentiary hearing, the circuit court concluded that West had not satisfied the new statutory criteria and denied his petition for supervised release.

    The court of appeals affirmed in a per curiam decision, stating that it had already decided these issues contrary to the position of the committed individual in Rachel.  Thus, it was bound by the Rachel decision to reject West’s arguments that the burden should be on the state and that to place the burden of proof on the committed person would be unconstitutional.

    West notes that only approximately 20 of the 350 people committed under Chapter 980 are on supervised release.  Thus, he contends that resolution of the statutory interpretation and constitutional issues will have a statewide impact on a significant number of individuals.