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  • WisBar News
    May 24, 2017

    Wisconsin Supreme Court Adds 11 Cases to its Docket

    Supreme Court chamber in Wisconsin State Capitol

    May 24, 2017 – The Wisconsin Supreme Court has added 11 cases to its docket, including ones involving the concealed carry statute, one involving the recreational immunity statute, and another involving disorderly conduct and free speech.

    In State v. Breitzman, a woman is arguing that she received ineffective assistance of counsel because her lawyer did not move to dismiss the disorderly conduct charge against her on the grounds that the charge violated her free speech rights.

    Ginger Breitzman was charged with disorderly conduct, in addition to child abuse and child neglect. Breitzman was accused of locking her 14-year-old son out of the house during winter and berating him with profanities for burning popcorn in the microwave.

    The disorderly conduct charge arose from her verbal profanities. She says those words, spoken from her private residence, are protected by the First Amendment and her lawyer should have moved to dismiss the charges on those grounds.

    Both the circuit and appeals courts ruled that the lawyer was not ineffective for failing to so move because the trial court indicated that such motion would have been denied.

    The state argued against the ineffective assistance of counsel claim because Breitzman’s free speech argument, in the context of disorderly conduct, is an unsettled area of law and lawyers are not required to argue unsettled points of law.

    In Westmas v. Selective Ins. Co. of South Carolina, the supreme court is expected to decide whether a tree trimming business was an “agent” or “occupier” of land that was protected by recreational immunity when a tree branch fell and killed a nearby walker.

    Jane Westmas was killed while walking with her son on a shoreline path, a public right-of-way around Lake Geneva. Conference Point, which owned the land through which the right-of-way passed, had hired Creekside Tree Service to trim trees on the property.

    The Westmas estate sued, arguing that Creekside was negligent in its tree trimming operations. Creekside argued that it had recreational immunity, as an “agent,” which bars lawsuits by persons engaging in recreational activity on the property owner’s land.

    A state appeals court ruled that recreational immunity did not apply to Creekside because it was not considered an “agent” or “occupier” under the immunity statute.

    In State v. Grandberry, the supreme court is expected to decide whether Wisconsin’s concealed carry statute conflicts with a safe transport statute and is void for vagueness.

    Milwaukee police stopped Grandberry’s vehicle in 2014. He notified police that he had a firearm in his glove box. Police found a loaded semi-automatic pistol. Grandberry did not have a permit to carry a concealed weapon under the concealed carry statute.

    Charged with carrying a concealed weapon without a permit, Grandberry argued that his case should be dismissed because he wasn’t “carrying” the firearm, he was “transporting” it and the state’s safe transport statute governs firearm transport.

    Thus, he argued that he did not have “fair notice” of prohibitions under the carry concealed statute. Rejecting that claim, the appeals court noted that Grandberry’s admissions to police about the permit suggested that he was aware of the prohibitions.

    The supreme court added eight other cases to its docket, briefly summarized below, and declined to review 85 other cases, including 32 cases from Milwaukee County.

    In Re: Partnership Health Plan v. OCI. This case examines issues related to statutes that regulate rehabilitation and liquidation proceedings involving insurers. More than $4 million in surplus remained after Partnership Health Plan (PHP) paid liabilities through liquidation. The receiver for Community Health Partnership (CHP) argued that CHP, as the sole owner of PHP, is entitled to the surplus funds. The insurance commissioner, and ultimately an appeals court, ruled that CHP was not entitled to the surplus funds.

    Metropolitan Associates v. City of Milwaukee. Property owner Metropolitan Associates challenged Milwaukee’s property tax assessments on the grounds that the city’s property appraiser used a mass-appraisal technique and not a three-tier approach. The circuit and appeals courts upheld the city’s assessments. A decision by the supreme court is expected to clarify the property tax assessment process in Wisconsin.

    Movrich v. Lobermeier. This case examines the interplay of Wisconsin’s public trust doctrine with submerged land and water flows. A state appeals court ruled that a waterfront property owner can install a dock on flowage waters even though another property owner claims title to the submerged land over which water flows.

    Nationstar Mortgage v. Strafsholt. This case involves a dispute over attorney fees in a foreclosure action. The foreclosure action was dismissed based on equitable estoppel and on grounds that the plaintiff-mortgagor breached the covenant of good faith and fair dealing. Ultimately, the circuit court awarded more than $60,000 in attorney’s fees to the defendant-mortgagees, reducing the mortgage balance by that amount. The appeals court reversed, concluding the court lacked authority to award attorney’s fees.

    State v. Dorsey. This case examines “other acts” evidence in the context of domestic abuse cases. Specifically, the supreme court will review whether evidence of criminal acts against persons other than the victim “are admissible in cases of alleged domestic abuse for the purpose of showing a generalized motive or purpose on the part of the defendant to control persons with whom he or she is in a domestic relationship.”

    Tetra Tech EC, Inc. v. Wis. Dept. of Revenue. This tax case relates to an EPA-ordered cleanup of environmental damage caused by the release of polychlorinated biphenyls (PCBs) into the Fox River. The primary question is whether a cleanup subcontractor’s services constituted “processing” of tangible personal property subject to state sales and use tax on services.

    State v. Washington. The supreme court will examine whether a defendant, by voluntary absence or other conduct, can waive the right to be present at trial before the trial begins. The defendant had refused to be represented by a third appointed counsel and the court proceeded with trial after the defendant refused to be present.

    State v. Bell. In this sexual assault case, the court will examine whether a prosecutor can argue that a jury must conclude certain witnesses lied in order to return a not guilty verdict, and that the defendant must provide evidence of their motive to lie.

    Summaries derived from full summaries released by

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