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  • WisBar News
    March 05, 2012

    Supreme court may decide whether legal bills subject to state's open records laws

    March 5, 2012 – The Wisconsin Supreme Court has agreed to decide whether a law firm must disclose redacted portions of legal bills to a Juneau County newspaper under the state’s open records laws. The case is one of four recently accepted for review during the current term.

    Supreme court may decide whether   legal bills subject to open records laws A lawyer with the Crivello Carlson law firm served as counsel to Juneau County’s sheriff in connection with a disciplinary matter. Juneau County retained the lawyer under its insurance contract, which covered the county’s defense in this type of disciplinary proceeding.

    Crivello Carlsen sent its legal bills to the county’s insurer, Wisconsin County Mutual Insurance Corp. (WCMIC). Eventually, a reporter for the Juneau County Star-Times made a public records request for the legal bills under Wis. Stat. section 19.36(3).

    That statute provides that government entities must supply a requestor with “any record produced or collected under a contract entered into by the authority with a person other than an authority to the same extent as if the record were maintained by the authority.”

    The law firm provided redacted versions of the bills to the newspaper. The newspaper then sued the county, seeking the redacted portions of the legal bills. The circuit court granted summary judgment to the county, but an appeals court reversed.

    In Juneau County Star-Times v. Juneau County, 2010AP2313, the supreme court is expected to decide whether the law firm must disclose the redacted portions of the legal bills submitted to the insurance company for legal services rendered to the county.

    Bostco v. Milwaukee Metro Sewerage District, 2007AP221/1440

    In this case, the owners of a Boston Store building in Milwaukee allege that the Milwaukee Metropolitan Sewerage District negligently maintained and operated an underground sewage and storm system that caused the store’s foundation to rot, costing millions in damage.

    Eventually, a jury awarded Bostco LLC and Parisian Inc. $6.3 million in past and future damages. However, a circuit court judge granted the sewerage district’s post-verdict motion, reducing the damages to $100,000 under a statute that caps damages for municipal liability for tort claims.

    But the circuit court ultimately ordered the sewerage district to install concrete liners in the tunnels near Boston Store to prevent future damage, at a cost of $10 million. An appeals court overruled that decision. Now, the supreme court will decide the issue.

    Rock-Koshkonong Lake Dist. v. Wisconsin Dept. of Natural Resources, 2008AP1523

    The Rock-Koshkonong Lake District, a lake protection and rehabilitation district, petitioned the Wisconsin Dept. of Natural Resources (DNR) to raise the water levels of Lake Koshkonong, an impaired water body under the federal Clean Water Act because of sediment and phosphorous pollutants. The DNR, which operates a dam impacting water levels, denied the request.

    After a contested case hearing, an administrative law judge affirmed the DNR’s decision, concluding that raised water levels would infringe the federal Clean Water Act’s goal of removing impairments in bodies of water listed as impaired.

    Both the circuit and appeals courts affirmed. The supreme court will review several issues, including whether the DNR improperly ignored economic impacts on property interests, and whether the DNR exceeded its authority to protect public rights and navigable waters.

    State v. Avery, 2010AP1952

    This criminal case examines whether a state appeals court erred in granting a new trial to Brian Avery, convicted on armed robbery charges in the 1990s and sentenced to 30 years in prison.

    The appeals court concluded that Avery was entitled to a new trial on the grounds of newly discovered evidence, or on the grounds that real controversy was not fully tried due to the absence of proffered new evidence from digitally enhanced videotape.

    An original jury saw “grainy” video surveillance tapes of the robberies and pinned Avery on two separate armed robberies, weighing other evidence at trial.

    But a digital enhancement, known as a photogrammetric analysis, using the new technology showed the robbery suspect was actually several inches shorter than Avery.

    Two experts testified, one for the state and one for the defense, about the precise height of the individual (thought to be Avery) captured on video during one of the robberies. The defense expert testified the suspect could not be six feet, three inches (6’3”) tall, Avery’s height.

    A decision by the supreme court could develop and clarify the law on unsettled questions concerning the tests for newly discovered evidence in criminal cases.

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