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    July 06, 2012

    Wisconsin Supreme Court Accepts Ten New Cases, Including Faith-Healing Case

    July 6, 2012 – The Wisconsin Supreme Court has voted to accept ten new cases, including a case involving two parents convicted of reckless homicide after using prayer to treat their 11-year-old daughter's diabetic condition over a two-day period in March 2008.

    Wisconsin Supreme Court Accepts Ten New Cases, Including Faith-Healing Case

    Wisconsin Supreme Court Accepts Ten New Cases, Including Faith-Healing Case

    July 6, 2012 – The Wisconsin Supreme Court has voted to accept ten new cases, including a case involving two parents convicted of reckless homicide after using prayer to treat their 11-year-old daughter’s diabetic condition over a two-day period in March 2008.

    The parents, Dale and Leilani Neumann, claim the state’s faith-healing statute, Wis. Stat. section 948.03(6), gave them a right to treat their child with prayer instead of medicine, and they didn’t realize the severity of her condition until it was too late.

    In its certification, the Wisconsin Court of Appeals asked the supreme court “to determine the scope of the prayer treatment exception and to inform trial courts regarding the appropriate jury instructions when that exception is raised in a reckless homicide case.”

    The supreme court also accepted review of nine other cases involving criminal law, insurance, civil procedure, tribal sovereign immunity, and Wisconsin’s new caregiver law. The following summaries are derived from full summaries on the Wisconsin Court System website:

    State v. Novy, 2011AP407-09-CR

    This case examines two issues arising from the conviction of Brent T. Novy on two counts of stalking, six counts of bail jumping, and one count of violating a harassment restraining order:

    • Did the trial court err in allowing fingerprint evidence to be admitted in the state's rebuttal when the court had previously ruled the evidence was not admissible because the state violated the discovery statute by not providing it to the defense?

    • Was Novy deprived the right to an impartial jury and fair trial when defense counsel observed a juror sleeping during his closing argument?

    Schinner v. Gundrum, 2011AP564

    This case examines the meaning of “occurrence” and “accident” under the terms of a homeowners’ insurance policy and how they apply to the facts presented. The Wisconsin Supreme Court is asked to review whether the policy covers the 21-year-old host of a drinking party who provided alcohol to an underage guest who then assaulted another guest.

    Estate of Hopgood v. Boyd, 2011AP914

    This case involves a claim against the state of Wisconsin arising from an accident involving a state-owned vehicle that was driven by a state prison inmate when it rolled over on the highway, resulting in the death of one passenger and injuring four others.

    The supreme court will examine what constitutes an “oath” for purposes of complying with Wis. Stat. § 893.82, which dictates the process for filing a claim against the state. Essentially, the issue raised in the petition is whether the plaintiffs properly “swore to” the contents of their notices of claim and thereby strictly complied with section 893.82, and the requirements of Kellner v. Christian, 197 Wis. 2d 183, 539 N.W.2d 685 (1995).

    Marlowe v. IDS Property Casualty. Ins. Co., 2011AP2067

    This case, arising from a dispute over insurance coverage, examines the arbitration process and the authority of arbitrators to determine the necessity and scope of allowable discovery.

    After an auto accident, plaintiffs Mary and Leslie Marlowe agreed to arbitrate an uninsured motorist claim with their insurer, IDS Property Casualty Insurance Company.

    IDS requested discovery in the form of depositions, medical records, and independent medical exams. But the Marlowes did not comply with the request, arguing that discovery in arbitration is limited to depositions under Wisconsin’s Arbitration Act, Wis. Stat. section 788.07.

    The arbitration agreement stated that “local rules of law as to procedure and evidence will apply” in arbitration. IDS argued that this provision meant full discovery was permitted, that is, discovery to the extent permitted by ch. 804 governing discovery in civil litigation.

    On IDS’s motion, the arbitration panel decided the discovery issue in favor of IDS, ruling the arbitration agreement allowed discovery under the state’s civil rules of procedure.

    The Marlowes then filed a declaratory action in circuit court, which ruled that the arbitration panel’s discovery ruling was incorrect – only depositions were discoverable.

    On appeal, IDS argued that the circuit court did not have authority to rule on that issue because the arbitration panel had not rendered a final award. In Marlowe v. IDS Property Casualty Ins. Co., 2011AP2067 (March 13, 2012), the District II appeals court agreed with IDS.

    Koscielak v. Stockbridge-Munsee Community, 2011AP364

    This case examines whether tribal sovereign immunity bars a state law tort claim arising from a slip-and-fall incident and the proper legal standard involved in guiding that analysis.

    In 2008, Robert Koscielak sustained injuries when he slipped and fell on ice in the Pine Hills Golf and Supper Club parking lot in Gresham, Wis. He and his wife, Mary Koscielak, filed suit against the Stockbridge-Munsee Band of Mohicans under the tribe’s business name, Pine Hills.

    Pine Hills moved to dismiss the lawsuit and its motion was converted to a motion for summary judgment. The Tribe argued that Pine Hills was a subordinate economic entity of the Tribe such that Pine Hills was entitled to the sovereign immunity conferred upon the Tribe by federal law.

    The circuit court agreed. The Koscielaks appealed, arguing, among other things, the circuit court erred in applying the doctrine of tribal immunity under the specific facts presented.

    Affirming, the appeals court ultimately concluded that Wisconsin law has never before distinguished between tort and contract claims for tribal immunity purposes. The court thus declined to draw such a distinction, stating that the “matter is best left to the Wisconsin Supreme Court or the federal courts.” The Koscielaks argue that Pine Hills is not entitled to tribal sovereign immunity because its business activities are too attenuated from the Tribe.

    State v. Sobczak, 2010AP3034-CR

    This case involves charges of possession of child pornography and examines whether a temporary houseguest may consent to a police search of a host's home and computer.

    Kenneth M. Sobczak, an adult, lived with his parents. While his parents were away on vacation, Sobczak invited a girlfriend to stay with him at his house for the weekend.

    After Sobczak left for work, the girlfriend began using the computer with his permission. She opened a file that contained a video showing two naked females, who appeared younger than 18 years of age, engaged in sexual activity.

    The girlfriend walked to a nearby gas station and called her grandmother, who called the police. When police arrived, the girlfriend then led the officer into the residence and to the couch, where she showed the video to the officer. The state charged Sobczak with possession of child pornography. Sobczak filed a motion to suppress, claiming that his girlfriend had neither actual nor apparent authority to give consent to a search of the Sobczak home.

    The circuit court concluded that as a guest of the Sobczak house, the girlfriend had actual authority to allow the police to enter the home and to search Sobczak's computer. After the circuit court denied the suppression motion, Sobczak entered a no contest plea.

    Affirming, the Court of Appeals concluded that the girlfriend had sufficient authority to consent to the police entry into the Sobczak home. Further, as well as authority to consent to the officer's search and seizure of his computer.

    State Public Defender v. COA, 2012AP544-W

    In this case, the supreme court will determine whether post-conviction/appellate defense counsel must obtain permission from a circuit court to access, cite to, or discuss the contents of a pre-sentence investigation report (PSI) in a post-conviction or appellate brief or hearing.

    The State Public Defender (SPD) has asked the Supreme Court to issue a supervisory writ, ordering the court of appeals to allow counsel for a criminal defendant to access, cite to, and discuss the PSI in appellate briefs without first obtaining permission from the circuit court.

    A decision by the Supreme Court is expected to clarify the law and help judges and lawyers handling future criminal cases.

    Bethke v. Auto-Owners Ins. Co., 2010AP3153

    This case, arising from a fatal car accident, examines two issues related to underinsured motorist (UIM) coverage: whether an insurance policy that excludes self-insured vehicles from UIM coverage contains an impermissible reducing clause; and whether refusal to pay proceeds based on the definition of underinsured motor vehicle is contrary to public policy.

    Jamerson v. Dept. of Children & Families, 2011AP593

    This case examines Wisconsin's new caregiver law, specifically, Wis. Stat. § 48.685(5)(br)5., which mandates that a childcare provider's certification must be revoked if the provider has been convicted of the enumerated public assistance offenses.

    A decision by the Supreme Court could help determine the proper standard of review to apply to state Department of Children and Family (the department) decisions involving Wis. Stat. § 48.685(5)(br)5., and clarify whether a previous conviction under § 49.12(1) & (6) (1989-90), now renumbered as § 49.95, constitutes a barring conviction for purposes of § 48.685(5)(br)5.

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