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  • WisBar News
    August 21, 2017

    Supreme Court Accepts 10 More Cases, Including Negligent Supervision Case

    Supreme Court chamber in Wisconsin State Capitol

    Aug. 21, 2017 – A convenience store worker punched a customer, who then sued the convenience store owner. Now, the Wisconsin Supreme Court will decide whether the incident is a covered claim under the convenience store owner’s insurance policy.

    Keith Scott broke Archie Talley’s jaw after a verbal altercation that started when Talley was slow to close the store’s front door. The store was air conditioned and it was summer. Talley sued the owner, Mustafa Mustafa (and his insurer), arguing that Mustafa breached a duty to properly train and supervise his employees.

    Mustafa’s insurer, Auto Owners Ins. Co., argued that the claim was not covered under Mustafa’s business liability policy because Scott committed an intentional act. The policy covered “accidents,” the insurer argued, and this was no accident.

    The circuit court agreed with the insurance company. But a state appeals court reversed (2-1), focusing on Mustafa’s conduct – negligent supervision – rather than Scott’s intentional act. The three-judge panel ruled that the policy covered negligent acts.

    Now, the supreme court will decide the case, Talley v. Mustafa. The court is likely to determine if Mustafa’s policy covers any liability that could result from the incident. The court also agreed to hear nine other cases in its next term, briefly summarized below.

    Milwaukee Police Association v. City of Milwaukee (Vested Rights)

    The supreme court will decide whether the city could amend an ordinance impacting the Annuity and Pension Board of the City of Milwaukee Employees’ Retirement System.

    The ordinance changed the size, composition, and manner of electing pension board members prospectively. For instance, the ordinance added three mayoral appointments to the board, and provides that only active firefighters can vote for the firefighters’ seat on the board, and only active police officers can vote for the police seat.

    The Milwaukee Police Association and the Milwaukee Professional Fire Fighters Association challenged the amendments, arguing the changes impact vested rights. The circuit court ruled in favor of the city, and a state appeals court affirmed.

    Wisconsin DWD v. Wisconsin LIRC (Unemployment Benefits)

    A registered nurse, Valarie Beres, was fired after missing work due to illness during a 90-day probation period. She did not call in to notify the employer. She just didn’t show up. The employer’s policy required employees to call in two hours ahead of time.

    In Wisconsin, workers are ineligible for unemployment benefits if fired for “misconduct,” including “absenteeism.” Under Wis. Stat. section 108.04(5)(e), absenteeism means excessive tardiness or absence from work without notice and a valid reason, “on more than 2 occasions within the 120-day period” before the employee is fired, “unless otherwise specified by his or her employer in an employment manual.”

    Beres’ application for unemployment benefits was denied on the basis that Beres committed “misconduct” in violating the employer’s absenteeism policy.

    The Labor Industry Review Commission (LIRC) ruled that Beres was still entitled to unemployment benefits because she only had one absence, without notice, in the 120 days before she was fired. A circuit court reversed the LIRC decision.

    But an appeals court, in a 2-1 decision, upheld the LIRC decision, noting that employers can adopt attendance policies that are more restrictive than state law, but those policies won’t control eligibility for unemployment benefits in those cases where other misconduct or substantial fault is not present.

    The supreme court is expected to decide whether Beres is entitled to benefits, and whether the circuit court should have given any deference to LIRC’s decision.

    State v. Bartelt (Fifth Amendment, Miranda)

    The supreme court will determine whether the confession that Daniel Bartelt made to police should have been suppressed. Bartelt was convicted of first-degree murder.

    Police interviewed Bartelt about a knife attack that occurred in a park several days before the murder, telling him he was not under arrest and was free to leave at any time.

    Bartelt ultimately admitted that he was in the park with a knife and knocked the woman down. Then he asked about a lawyer, asking “should I or can I speak to a lawyer or anything?” The police said he could and Bartelt said: “I think I’d prefer that.”

    The detectives arrested him shortly after that, without giving a Miranda warning. The next day, a detective gave a Miranda warning and started asking about the murder involving a girl who was strangled to death. Bartelt agreed to speak with police without a lawyer.

    He admitted being present at a local park on the morning of the murder. The interview ended when Bartelt asked for a lawyer. But it was too late for him. Police later found evidence of the crime at the park, with Bartelt’s and the victim’s DNA on it.

    Bartelt filed a motion to suppress the evidence on the grounds that his right to counsel was violated when police questioned and continued to question him without a lawyer present. The trial court denied the motion and a state appeals court affirmed.

    The supreme court is expected to decide whether a person is “in custody” for Miranda purposes after they have confessed to a crime but have not been placed under arrest.

    State v. Delap (Fourth Amendment, Hot Pursuit)

    In this case, the supreme court will examine whether the doctrine of “hot pursuit” always justifies a forcible warrantless entry into the residence of a suspected criminal.

    Police suspected that Delap had recently fled from two traffic stops. Deputies approached his home where Delap was walking down the driveway, but he turned around and started walking towards the house when he saw the deputies.

    One deputy told him to stop but he ran inside the house. Before he could close the rear door, the deputies forced it open, entered the house and arrested him.

    Delap argued that the deputies violated his Fourth Amendment right against unreasonable searches and seizures, and filed a motion to suppress evidence. The circuit court denied the motion. The court of appeals affirmed, concluding that the “hot pursuit” doctrine applied as an exception to the warrant requirement.

    Madison Teachers v. Scott (Public Records Request)

    The central issue is whether a public policy against voter intimidation outweighs a public policy and presumption that favors disclosure of public records upon request.

    Under Wisconsin law (2011 Wis. Act 10), a union must be annually certified with a majority vote. In 2015, the executive director of Madison Teachers Inc. (MTI) contacted the Wisconsin Employment Relations Commission (WERC), which oversees annual certification elections, requesting public records about voting employees during the 20-day election period. WERC denied the request, citing possible voter coercion.

    WERC provided information upon request after the election period ended. MTI filed a mandamus action, seeking records sought in the previous requests. MTI also sought a punitive damages award for WERC”s failure to provide the records upon request.

    The circuit court ruled that WERC violated the open records law, but denied the request for punitive damages. A petition to bypass the appeals court was granted.

    State v. Sanders (Juvenile Court Jurisdiction)

    The supreme court will examine whether a person can be criminally responsible for acts allegedly committed before age 10, when offenders can be subject to adult court.

    The state prosecuted Sanders for numerous sexual assaults committed between the ages of nine and 18 years old. But Sanders challenged prosecution for counts committed while he was under age 10, concluding the court lacked subject matter jurisdiction.

    The court of appeals ruled that Sanders was properly tried as an adult. Sanders asked the supreme court to clarify whether age at the time of the crime controls or age at the time the charges are brought controls, which is what the state is arguing.

    Other Cases

    · Thoma v. Village of Slinger (Property Tax Assessment): A property owner has challenged the village’s decision to classify one of his development properties as residential. He argues that it should remain classified as “agricultural.”

    · Cintas Corp. No. 2 v. Becker Property (Indemnification): After water damage, the issue is whether a contract between a fire protection company and a property management company obligates the property management company to defend and indemnify the fire protection company for alleged negligent acts.

    · State v. Arberry (Expungement): This case will examine whether a defendant can request expungement in a postconviction motion if the sentencing court did not address expungement.

    Summaries derived from full summaries published on the Wisconsin Court System website,

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