Wisconsin Lawyer
Vol. 84, No. 11, November 2011

1. Petition for Supervisory Writ or Original Action
State ex rel. Ozanne v. Fitzgerald (2011 WI 43)
Issue: Did exigencies related to passage of 2011 Wisconsin Act 10 justify the supreme court’s conversion of a petition for supervisory writ to one for original action and bypass of the lower courts’ review?
Holding: In certain situations, the supreme court may convert a request for a supervisory writ to one seeking an original action and both accept jurisdiction and decide the underlying issue in the same order/opinion.

2. Distribution of a Debtor’s Estate
BNP Paribas v. Olsen’s Mill Inc. (2011 WI 61)
Issue: Was it error for the circuit court to order the sale of a secured creditor’s collateral free and clear of the secured creditor’s secured interest and without the creditor’s consent?
Holding: The circuit court erred in ordering the sale under these circumstances; the circuit court is not free to violate the provisions of chapter 128 by ignoring consent provisions or the distribution scheme.

3. Refusal to Rehire – Worker’s Compensation
deBoer Transp. Inc. v. Swenson (2011 WI 64)
Issue: Did LIRC err when it held that deBoer violated Wis. Stat. section 102.35(3), which allows an employer to refuse to rehire an employee who was injured on the job if the employer has a reasonable cause for the refusal?
Holding: LIRC erred, because it is not reasonable to find a legislative intent to impose on employers the burden of deciding which nonwork-, noninjury-related requests need to be accommodated.

4. No Panel Authority to Decide Recusal
State v. Henley (2011 WI 67)
Issue: Does a panel of the supreme court have authority to remove a justice from a case?
Holding: The determination of whether to recuse is solely that of the justice whose recusal is requested; a majority of the court lacks the power to disqualify a judicial peer from performing the constitutional functions of a justice.

5. No Court Authority to Compel Alternative Educational Services
Madison Metro. Sch. Dist. v. Circuit Court for Dane County (2011 WI 72)
Issue: Was it permissible for a circuit court to order a school district to provide particular educational services to a juvenile who was expelled by the district and also adjudicated delinquent?
Holding: A circuit court may not order a school district to provide alternative educational services to a juvenile whom the district has lawfully expelled but the court may order the juvenile to attend educational services.

6. No More Authority to Accept Late Filing
Northern Air Servs. Inc. v. Link (2011 WI 75)
Issue: Did a circuit court clerk have the power to determine that a postverdict motion filed after the statutory deadline was timely filed?
Holding: Circuit court clerks may accept papers after hours but lack the power to determine whether such papers were timely filed.

7. Broadened Opportunity for Direct Action
Casper v. American Int’l S. Ins. Co. (2011 WI 81)
Issue: Does an insurance policy need to have been delivered or issued for delivery within Wisconsin for a plaintiff to bring a direct action against the insurer of a defendant?
Holding: Bringing a direct action against an insurer does not require that the insurance policy was delivered or issued for delivery within Wisconsin as long as the accident, injury, or negligence on which the action is based occurred within Wisconsin.

8. Chapter 980 – Burdens of Proof and Persuasion
State v. West (In re Commitment of West) (2011 WI 83)
Issue: Who has the burden of proof to establish that the conditions for supervised release of a person committed as sexually violent have been met: the person or the state?
Holding: The burden of proof rests with the committed individual, who must establish that he or she has met the conditions by clear and convincing evidence.

9. Sixth Amendment Right to Counsel
State v. Forbush (2011 WI 25)
Issue: Was it correct for the circuit court to suppress an individual’s statements made during an interrogation under the purview of a law enforcement agency which knew that the individual had already secured an attorney?
Holding: Under these circumstances, the individual’s right to counsel under both the U.S. and the Wisconsin Constitutions attached before the interrogation, and the circuit court properly suppressed the statements.

10. Refusal of Consent to Search – Shared Dwelling
State v. St. Martin (2011 WI 44)
Issue: Was a warrantless search of a dwelling legal in a situation in which one resident of the dwelling consented to the search but the cotenant of the dwelling objected to the search?
Holding: The cotenant’s objection did not trump the resident’s consent to the search because the cotenant was not inside the apartment when he objected.

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