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May 10, 2011

WISCONSIN SUPREME COURT TABLE OF PENDING CASES


Clerk of Supreme Court Telephone: (608) 266-1880 Facsimile: (608) 267-0640 Web Site: www.wicourts.gov Wisconsin Supreme Court Case Access: http://wscca.wicourts.gov

The following table describes pending cases the Supreme Court has accepted on petition for review, bypass, certification and original jurisdiction. The cases included for the first time (that is, the most recently accepted cases) are marked with an * next to the case number. After the Supreme Court decides a case, the date of oral argument or date of submission on briefs is replaced with the date of the Supreme Court decision and abbreviated mandate. That mandate will generally be listed in the table for two months and then the case will be removed from the table. The information in the table, from left to right, is as follows: the case number; an abbreviated caption of the case (case name); a statement of the issue(s); the date the Supreme Court accepted the case; the method by which the case came to the Supreme Court: REVW = Petition for review, CERT = Certification, CERQ = Certified Question, BYPA = Petition to bypass, ORIG = Original Action, WRIT = Petition for supervisory writ, REMD = Remanded from the U.S. Supreme Court; the date of oral argument or submission on briefs; or the date of the Supreme Court decision and an abbreviated mandate; the Court of Appeals district from which the case came, if applicable; the county; the date of the Court of Appeals decision, if applicable; whether the Court of Appeals decision is published or unpublished, and, if it is published, the citations to the public domain citation and the official reports for the Court of Appeals decision.

The statement of the issue is cursory and does not purport to be an all-inclusive, precise statement of the issues in the case. Readers interested in a case should determine the precise nature of the issues from the record and briefs filed with the Supreme Court. The following table covers cases accepted and decisions issued through May 10, 2011. Please direct any comments regarding this table to the Clerk of Supreme Court, P.O. Box 1688, Madison, WI 53701-1688, telephone (608)266-1880.

APPENDIX WISCONSIN SUPREME COURT PENDING CASES


Clerk of Supreme Court (608) 266-1880
Case No. 2006AP1229/ 2006AP2512/ 2007AP369 Caption/Issue(s) Casper v. American International South Insurance Co. Casper v. National Union Fire Ins. Co. of Pittsburgh, PA Casper v. National Union Fire Ins. Co. of Pittsburgh, PA For excusable neglect, is it necessary to have evidence of the actions that caused the neglect or of the reasons why a carefully structured process to respond to complaints did not work if the party failed to timely respond? -- OR Did failure to answer the complaint in a timely manner constitute excusable neglect? Under Wis. Stat. ss 632.24 and 631.01(1), can a direct action claim against an insurer be maintained where the insurance policy was not delivered or issued for delivery in Wisconsin but the insurance policy covers the insureds business operations conducted in this state? Can a corporate officer be held personally liable for negligence that occurs while he is performing his job and is within the scope of this employment for a solvent and insured corporation? Do public policy factors and a lack of forseeability preclude a finding of negligence as a matter of law? 2007AP35 David Rasmussen v. General Motors Corporation, et al. Whether Wisconsins long-arm statute, Wis. Stat. 801.05 (1) (d), subjects a foreign parent corporation to personal jurisdiction in Wisconsin. 2008AP1139 State v. Omer Ninham Whether Roper v. Simmons, 543 U.S. 551 (2005) and Graham v. Florida, 130 S.Ct. 2011 (2010) are applicable to revise the sentence of a defendant whose crime(s) were committed as a juvenile. Whether the sentence constitutes cruel and unusual punishment under state and federal constitutions. 09/14/2010 REVW Oral Arg 01/05/2011 1 Milwaukee 06/30/2010 Unpub SC Accepted 06/28/2010 REVW Oral Arg 12/01/2010 CA Dist/ Cty 1 Milwaukee CA Decision 12/22/2009 Pub 2010 WI App 2 323 Wis.2d 80 779 N.W.2d 444

09/13/2010 REVW Oral Arg 01/05/2011

3 Brown

05/27/2009 Pub 2010 WI App 64, 316 Wis. 2d 776, 767 N.W.2d 326

NOTE: The statement of the issue is cursory and does not purport to be an all-inclusive, precise statement of the issues in the case. Readers interested in a case should determine the precise nature of the issues from the record and briefs filed with the Supreme Court. 2
5/10/2011

APPENDIX WISCONSIN SUPREME COURT PENDING CASES


Clerk of Supreme Court (608) 266-1880
Case No. 2008AP1830 Caption/Issue(s) MBS-Certified Public Accountants, LLC v. Wisconsin Bell Inc. Does the voluntary payment doctrine bar a plaintiff from seeking damages under Wis. Stat. 100.18, 100.207 and 946.80 946.88 where the legislature created private rights of action for damages from prohibited billing practices? Must individuals pay illegal charges or fees under protest to preserve the right to bring a statutory claim for damages where the legislature did not include a protest requirement in the statutes? Is there an exception to the voluntary payment doctrine (See Putnam v. Time Warner Cable of Se. Wis., 2002 WI 108, 255 Wis. 2d 447, 649 N.W.2d 626 and Butcher v. Ameritech Corp., 2007 WI App 5, 298 Wis. 2d 468, 727 N.W.2d 546) that prevents alleged violators of Wis. Stat. 100.18, 100.207 and 946.80 946.88 from asserting the doctrine? 2008AP1972 Thomas W. Jandre v. Physicians Insurance Company of Wisconsin Does Wis. Stat. 448.30 (patient informed consent) require a physician to advise a patient about tests and treatments for possible alternative health problems which are unrelated to the diagnosed condition? (See Scaria v. St. Paul Fire & Marine Insurance Co., 68 Wis. 2d 1, 227 N.W.2d 647 (1975), Martin v. Richards, 192 Wis. 2d 156, 531 N.W.2d 70 (1995) and Bubb v. Brusky, 2009 WI 91, 321 Wis. 2d 1, 768 N.W.2d 903). 2008AP2206-CR State v. Charles Lamar Whether, at resentencing, a defendant would be entitled to credit on a new sentence for time spent confined on a vacated sentence, which was served concurrently with another nonvacated sentence, when the new sentence is imposed consecutively to all other sentences (See Wis. Stat. 973.04). 10/27/2010 REVW Oral Arg 03/08/2010 1 Milwaukee 03/16/2011 REVW 2 Fond du Lac 10/27/2010 2010 WI App 136 330 Wis. 2d 50 792 N.W.2d 558 SC Accepted 03/16/2011 REVW CA Dist/ Cty 1 Milwaukee CA Decision 09/29/2010 Unpub

09/29/2009 Pub 2009 WI App 133 321 Wis.2d 334 773 N.W.2d 446

NOTE: The statement of the issue is cursory and does not purport to be an all-inclusive, precise statement of the issues in the case. Readers interested in a case should determine the precise nature of the issues from the record and briefs filed with the Supreme Court. 3
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APPENDIX WISCONSIN SUPREME COURT PENDING CASES


Clerk of Supreme Court (608) 266-1880
Case No. 2008AP2595 Caption/Issue(s) Wanda Brethorst v. Allstate Property and Casualty Ins. Co. Whether a finding of wrongful denial of benefits is a condition precedent to proceeding with discovery in a first-party bad faith claim based on wrongful denial of benefits. In a first-party bad faith claim, if a finding of wrongful denial of benefits is a condition precedent to proceeding with bad faith discovery, does the trial court err if it refuses to grant the insurance companys motion to bifurcate the issues for discovery? Do the same policy considerations that make it error for the trial court to refuse a motion to bifurcate simultaneous bad faith and breach of contract claims avoiding undue prejudice to the insurance company, avoiding jury confusion and promoting settlement make it error to refuse a motion to bifurcate the same two issues when the insureds only claim is bad faith? 2008AP2759-CR State v. Daniel H. Hanson Whether a driver of a vehicle can be convicted of attempting to elude a law enforcement officer under Wis. Stat. 346.04(3) while on a cell phone with a 911 intake dispatcher and driving to a police station. Whether an officer is a victim (See State v. Haase, 2006 WI App 86, 293 Wis. 2d 322, 716 N.W.2d 526) in the context of an eluding an officer offense such that the charged offender may present victim character evidence under Wis. Stat. 904.04(1)(b) at trial. 2008AP2765-CR State v. David D. Funk Whether a juror was subjectively and/or objectively biased under the test set forth in State v. Delgado, 223 Wis. 2d 270, 588 N.W.2d 1 (1999). 09/24/2010 REVW Oral Arg 02/01/2011 4 Juneau 04/28/2010 Unpub 02/08/2011 REVW 2 Kenosha 11/17/2010 Pub 2010 WI App 146 ___ Wis. 2d ___ 792 N.W.2d 203 SC Accepted 02/24/2010 CERT Oral Arg 09/07/2010 CA Dist/ Cty 2 Racine CA Decision --

NOTE: The statement of the issue is cursory and does not purport to be an all-inclusive, precise statement of the issues in the case. Readers interested in a case should determine the precise nature of the issues from the record and briefs filed with the Supreme Court. 4
5/10/2011

APPENDIX WISCONSIN SUPREME COURT PENDING CASES


Clerk of Supreme Court (608) 266-1880
Case No. 2008AP2897 Caption/Issue(s) Link Snacks, Inc. v. Jay E. Link Under Wis. Stat. 895.043(3), may the circuit court submit the issue of punitive damages to the jury in the absence of evidence warranting a conclusion to a reasonable certainty that the party against whom punitive damages may be awarded acted maliciously toward the plaintiff or in an intentional disregard of the rights of the plaintiff? Does the twenty-day period for filing motions after verdict in Wis. Stat. 805.16(1) begin to run only upon the final disposition of the entire litigation? Under the benefit-estoppel doctrine, does the plaintiffs compliance with an unconditional circuit court order requiring him to sell his shares in defendant corporation entered over his object constitute a voluntary waiver of his appellate rights? Does the benefit-estoppel doctrine require dismissal of the plaintiffs appeal when the issues raised in the appeal neither challenged nor depended upon the reversal of the order under which he received the alleged benefit that is, the payment for hs shares at the price sought to be paid by defendant corporation? Is the benefit-estoppel doctrine inapplicable because the petitioners appeal could not have left him in a worse position than the circuit court order under which he received payment for his services? 2008AP2929 Wendy M. Day v. Allstate Indemnity Company Whether an insurance policy was unambiguous and public policy did not require coverage as established in Shannon v. Shannon, 150 Wis. 2d 434, 442 N.W.2d 25 (1989) and Whirlpool Corp. v. Ziebert, 197 Wis. 2d 144, 539 N.W.2d883 (1995). 09/22/2010 REVW Reversed and Remanded 04/29/2011 2011 WI 24 3 St. Croix 06/30/2010 Pub 2010 WI App 72 325 Wis. 2d 370 784 N.W.2d 694 SC Accepted 05/13/2010 REVW Oral Arg 10/06/2010 CA Dist/ Cty 3 Washburn CA Decision 11/17/2009 Unpub

NOTE: The statement of the issue is cursory and does not purport to be an all-inclusive, precise statement of the issues in the case. Readers interested in a case should determine the precise nature of the issues from the record and briefs filed with the Supreme Court. 5
5/10/2011

APPENDIX WISCONSIN SUPREME COURT PENDING CASES


Clerk of Supreme Court (608) 266-1880
Case No. 2008AP3007-CR Caption/Issue(s) State v. Brad E. Forbush Whether the right to counsel under the Wisconsin Constitution prohibits the state from interrogating a represented individual once the state is aware of the representation Whether a suspect made an equivocal request for counsel during police questioning, thereby invoking his right to counsel under the Wisconsin Constitution and requiring suppression of his confession at trial Whether the circuit courts suppression order should be affirmed without reaching the viability of State v. Dagnall, 2000 WI 82, 236 Wis. 2d 339, 612 N.W.2d 680 (the Sixth Amendment prohibits the police from questioning a person represented by an attorney on criminal charges without the attorney present). What impact does Montejo v. Louisiana, 556 U.S. ___, 129 S. Ct. 2079 (2009) have upon the facts of this case and State v. Dagnall? 2008AP3170 Lake Beulah Management District v. DNR Does the legislative framework of Wis. Stat. 281.34 and 281.35 define the Department of Natural Resources (DNR) authority to regulate various categories of high capacity wells? Does the DNRs general authority in Wis. Stat. 281.11 and 281.12 impose a duty upon the DNR to consider the impact of high capacity wells on surface waters? In a proceeding under Wis. Stat. ch. 227, can documents that the parties did not offer as part of the record but were in the possession of the agencys attorney in connection with a prior proceeding be deemed a part of the record before the agency? Steve Ottman v. Town of Primrose Whether the appellate courts standard of review concerning land use decisions by a government unit is limited to the standards in Klinger v. Oneida County, 149 Wis. 2d 838, 845, 440 N.W.2d 348 (1989) (Whether the board kept within its jurisdiction; whether it proceeded on a correct theory of law; whether its action was arbitrary, oppressive or unreasonable and represented its will and not its judgment; and whether the evidence was such that it might reasonably make the order or determination in question). 11/05/2010 REVW Oral Arg 04/13/2011 2 Walworth 07/28/2010 Pub 2010 WI App 85 787 N.W.2d 926 SC Accepted 03/16/2010 REVW Reversed and Remanded 04/29/2011 2011 WI 25 CA Dist/ Cty 2 Sheboygan CA Decision 01/27/2010 Pub 2010 WI App 11

2008AP3182

09/14/2010 REVW Affirmed 03/22/2011 2011 WI 18

4 Dane

03/31/2010 Unpub

NOTE: The statement of the issue is cursory and does not purport to be an all-inclusive, precise statement of the issues in the case. Readers interested in a case should determine the precise nature of the issues from the record and briefs filed with the Supreme Court. 6
5/10/2011

APPENDIX WISCONSIN SUPREME COURT PENDING CASES


Clerk of Supreme Court (608) 266-1880
Case No. 2008AP3235 Caption/Issue(s) Curt Andersen, et al. v. Department of Natural Resources Is an administrative permit review hearing an appropriate forum for adjudicating disputes concerning the application of federal law, in a federally delegated program where the Environmental Protection Agency (EPA) has approved the states rules and where the EPA has not objected to the permit that does not have the limits or analyses that a party sought? 2009AP25-CR State v. Olu A. Rhodes Whether a criminal defendants constitutional right to confront a witness in cross-examination was infringed, and, if so, whether the infringement was harmless error. 2009AP118 State v. Alan Keith Burns Is the Appellant entitled to a new trial in the interests of justice where (a) the circuit court banned the Appellant from presenting evidence that the victims post-assaultive behavior and loss of virginity was due to her having been sexually assaulted by her grandfather rather than the Appellant, and (b) the state argued that there was no other explanation for the victims behavior than that the Appellant was guilty? 2009AP120 Dawson v. Town of Jackson Does acting together under Wis. Stat. 82.21(2) require that the separate votes taken by two governing bodies in deciding an application to lay out, alter, or discontinue a public highway across municipal lines be counted in the aggregate as if the boards voted as one board? Does the prescribed method of certiorari review pursuant to Wis. Stat. 82.21(2) preclude a declaratory judgment action? Should the respondents be equitably estopped from asserting any position inconsistent with their prior actions and representations to the town boards which led up to the joint meeting to consider the respondents application to discontinue the town-line road? 2009AP191 State ex rel. Stupar River LLC v. Town of Linwood Board of Review Whether a tax assessment was made in accordance with the provisions of Wis. Stat. 70.32 (1). 09/22/2010 REVW Oral Arg 04/19/2011 4 Portage 01/27/2010 Unpub SC Accepted 07/22/2010 REVW Reversed 03/23/2011 2011 WI 19 CA Dist/ Cty 3 Brown CA Decision 05/26/2010 Pub 2010 WI App 64

09/24/2010 REVW Oral Arg 02/03/2011

1 Milwaukee

08/25/2010 Unpub

05/13/2010 REVW Affirmed 04/26/2011 2011 WI 22

4 Richland

01/28/2010 Unpub

05/13/2010 REVW Oral Arg 10/01/2010

2 Washington

01/06/2010 Pub 2010 WI App 24

NOTE: The statement of the issue is cursory and does not purport to be an all-inclusive, precise statement of the issues in the case. Readers interested in a case should determine the precise nature of the issues from the record and briefs filed with the Supreme Court. 7
5/10/2011

APPENDIX WISCONSIN SUPREME COURT PENDING CASES


Clerk of Supreme Court (608) 266-1880
Case No. 2009AP438 Caption/Issue(s) David Bushard v. Steven A. Reisman Whether the dissolution of a business partnership was concluded in accordance with the provisions of Wis. Stat. 178.15 and the terms of the partnership agreement. 2009AP472 State v. David J. Balliette Under what circumstances s an evidentiary hearing into the effectiveness of postconviction counsel required where a postconviction motion under Wis. Stat. 974.06 alleges that counsel was ineffective for not raising additional challenges to the effectiveness of trial counsel on direct appellate review? Whether postconviction counsel was ineffective under the clearly stronger standard referenced in Smith v. Robbins, 528 U.S. 259, 288, 120 S. Ct. 746, 145 L.Ed.2d 756 (2000) (defendant generally must demonstrate that an ignored issue is clearly stronger than issues raised during the direct appeal to show that postconviction counsel performed deficiently by not raising the issue). 2009AP524 Metropolitan Associates v. City of Milwaukee Does the court of appeals holding that portions of Wis. Stat. 74.37, as amended by 2007 Wisconsin Act 86, do not violate the equal protection clause conflict with this courts decision in Nankin v. Village of Shorewood, 2001 WI 92, 245 Wis. 2d 86, 630 N.W.2d 141? 2009AP538 Steven T. Kilian v. Mercedes-Benz USA, LLC, et al. Whether an automobile manufacturer violated Wisconsins Lemon Law (See Tammi v. Porsche Cars North America, Inc., 2009 WI 83, 44, 320 Wis. 2d 45, 768 N.W.2d 783) entitling the consumer lessee to an award of attorney fees and damages under Wis. Stat. 218.0171 (7) against the automobile lessor. 2009AP564 DeBoer Transportation, Inc. v. Charles Swenson Does Wis. Stat. 102.35 (3) require employers to provide injured workers special accommodations for personal obligations not provided to uninjured workers? If Wis. Stat. 102.35 (3) requires employers to provide injured workers special accommodations for personal obligations, what standard should the Commission apply when determining which special accommodations should be granted? 12/15/2009 REVW Reversed 03/25/2011 2011 WI 20 1 Milwaukee 09/09/2009 Pub 2009 WI App 157 SC Accepted 12/07/2010 REVW Oral Arg 04/14/2011 CA Dist/ Cty 3 Pierce CA Decision 07/28/2010 Unpub

08/31/2010 REVW Oral Arg 01/04/2011

2 Winnebago

03/10/2010 Unpub

09/14/2010 REVW Oral Arg 01/05/2011

2 Waukesha

04/26/2010 Unpub

09/14/2010 REVW Oral Arg 01/06/2011

4 Wood

04/26/2010 Pub 2010 WI App 54 324 Wis. 2d485 781 N.W.2d 709

NOTE: The statement of the issue is cursory and does not purport to be an all-inclusive, precise statement of the issues in the case. Readers interested in a case should determine the precise nature of the issues from the record and briefs filed with the Supreme Court. 8
5/10/2011

APPENDIX WISCONSIN SUPREME COURT PENDING CASES


Clerk of Supreme Court (608) 266-1880
Case No. 2009AP608 Caption/Issue(s) John Adams, et al. v. State of Wisconsin Does the Livestock Facility Siting Law (Wis. Stat. 93.90) prohibit a local government from imposing conditions in a Conditional Use Permit (CUP) for a Confined Animal Feedlot Operation (CAFO) for water quality monitoring and compliance with state water quality standards? Was the Department of Agriculture, Trade and Consumer Protection given the power by the legislature to revoke local zoning authority to protect surface and groundwater resources by omitting state water quality standards as a performance standard in the administrative rule (Wis. Admin. Code ATCP 51) for the siting and expansion of CAFOs? Is there a legal distinction between a local zoning authoritys licensing or siting of a CAFO and its regulation of the facility for compliance with state water quality standards? Does the Livestock Facility Siting Review Board have authority to remove conditions of a CUP that requires compliance with state water quality standards and the means to monitor compliance? Did the state siting board exceed its authority in modifying the Towns permit rather than reversing it entirely? Even if a town must satisfy the prerequisites in Wis. Stat. 93.90(3)(ar) prior to imposing conditions on a siting permit, may those conditions refer to and monitor compliance with state standards? 2009AP639 Tracy J. McReath v. Timothy J. McReath Whether a court may double count the value of a divorcing professionals professional goodwill by first valuing the professionals business practice, including all of its associated goodwill, for property division purposes, and then award maintenance based upon the professionals earning capacity. 2009AP688 Susan Foley-Ciccantelli v. Bishops Grove Condominium Association, Inc. Can a circuit court disqualify retained counsel-of-record in a civil suit, thereby denying the client the right to representation by chosen counsel and restricting the attorneys right to practice law in a civil action, where the attorney previously represented a nonparty witness for the opposing side? 12/07/2010 REVW Oral Arg 04/13/2011 4 Sauk 08/25/2010 Pub 2010 WI App 101 ___ Wis. 2d ___ 789 N.W.2d 89 SC Accepted 02/11/2011 REVW CA Dist/ Cty 4 Rock CA Decision 07/28/2010 Pub 2010 WI App 88 327 Wis. 2d 676 787 N.W.2d 941

04/19/2010 CERT Oral Arg 10/06/2010

2 Waukesha

--

NOTE: The statement of the issue is cursory and does not purport to be an all-inclusive, precise statement of the issues in the case. Readers interested in a case should determine the precise nature of the issues from the record and briefs filed with the Supreme Court. 9
5/10/2011

APPENDIX WISCONSIN SUPREME COURT PENDING CASES


Clerk of Supreme Court (608) 266-1880
Case No. 2009AP694-CR Caption/Issue(s) State v. Rickey R. Denson Should the constitutional right of a criminal defendant not to testify and remain silent at trial be recognized as a fundamental right that can only be waived personally by a defendant with an on-the-record colloquy? (Cf., State v. Jaramillo, 2009 WI App39, 316 Wis.2d 538, 765 N.W.2d 855). Should the only appropriate remedy for failure to engage in an on-the-record colloquy regarding the right not to testify at trial be a new trial? Should the failure to engage in an on-the-record colloquy regarding the right not to testify be subject to a harmless error analysis? 2009AP775 E-Z Roll Off, LLC v. County of Oneida Whether Wis. Stat. ch. 133 antitrust claims are exempt from the notice requirements of Wis. Stat. 893.80 (1). 2009AP806-CR State v. Marvin L. Beauchamp Does the confrontation clause bar admission of testimonial dying declarations against a defendant in light of Crawford v. Washington, 541 U.S. 36 and State v. Manuel, 2005 WI 75, 281 Wis. 2d 554, 697 N.W.2d 811? Does a defendants right to due process of law restrict the substantive use of prior inconsistent statements? 2009AP956-CR State v. Donovan M. Burris Was the trial courts supplemental jury instruction that was issued in response to a question from the jury and that quoted verbatim from a Supreme Court opinion an impermissibly misleading instruction under the standards established by State v. Lohmeier, 205 Wis. 2d 183, 556 N.W.2d 90 (1996). 2009AP1007 BNP Paribas v. Olsens Mill, Inc. Whether, under Wis. Stat. ch. 128 proceedings, a creditors security interest was correctly valued leaving the balance of the creditors claim unsecured. (See Wisconsin Brick & Block Corp. v. Vogel, 54 Wis. 2d 321, 326, 195 N.W.2d 664 (1972)). Whether a creditors security interest was impermissibly destroyed in proceedings under Wis. Stat. ch. 128. 09/21/2010 REVW Oral Arg 02/02/2011 1 Milwaukee 02/24/2010 Unpub 09/24/2010 REVW Oral Arg 02/02/2011 09/13/2010 REVW Affirmed 05/03/2011 2011 WI 27 3 Oneida 06/30/2010 Pub 2010 WI App 76 325 Wis. 2d 423 785 N.W.2d 645 03/31/2010 Pub 2010 WI App 42 324 Wis. 2d 162 781 N.W.2d 254 SC Accepted 12/08/2010 REVW Oral Arg 04/14/2011 CA Dist/ Cty 4 Rock CA Decision Unpub

1 Milwaukee

10/27/2010 REVW Oral Arg 03/02/2011

2 Green Lake

Unpub

NOTE: The statement of the issue is cursory and does not purport to be an all-inclusive, precise statement of the issues in the case. Readers interested in a case should determine the precise nature of the issues from the record and briefs filed with the Supreme Court. 10
5/10/2011

APPENDIX WISCONSIN SUPREME COURT PENDING CASES


Clerk of Supreme Court (608) 266-1880
Case No. 2009AP1209-CR Caption/Issue(s) State v. Brian T. St. Martin Whether the rule regarding consent to search a shared dwelling in Georgia v. Randolph, 547 U.S. 103 (2006), which states that a warrantless search cannot be justified when a physically present resident expressly refuses consent, applies where the physically present resident is taken forcibly from his residence by law enforcement but remains in close physical proximity to the residence such that the refusal is made directly to law enforcement on the scene? Did the seizure of illegal drugs occur as a result of a search warrant that was issued after the initial search of the premises? Was the warrant invalid because the affidavit accompanying the warrant application contained inaccurate and misleading information? Did the trial court err by redacting the affidavit after concluding that it contained false statements? 2009AP1249-CR State v. Esteban M. Gonzalez Whether a pattern jury instruction confused or mislead a jury such that the instructions violated a defendants due process rights. Whether a trial court erred in its handling of a jurys questions during deliberations. Whether particular evidence constituted substantial facts sufficient to corroborate the defendants alleged statements under the corroboration rule (See State v. Bannister, 2007 WI 86, 26, 302 Wis. 2d 158, 734 N.W.2d 892). 2009AP1252-CR State v. Shantell T. Harbor Whether a defendant presented a new factor entitling sentence modification (See State v. Franklin, 148 Wis. 2d 1, 8, 434 N.W.2d 609 (1989). Whether a defendant demonstrated ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984). 2009AP1351-CR State v. Gregg B. Kandutsch May a report from an electronic monitoring device be admitted into evidence without expert testimony as to the scientific validity, accuracy, and reliability of the device? Is a report generated by an electronic monitoring device inadmissible hearsay? NOTE: The statement of the issue is cursory and does not purport to be an all-inclusive, precise statement of the issues in the case. Readers interested in a case should determine the precise nature of the issues from the record and briefs filed with the Supreme Court. 11
5/10/2011

SC Accepted 10/27/2010 CERT Oral Arg 03/09/2011

CA Dist/ Cty 2 Racine

CA Decision --

10/27/2010 REVW Oral Arg 03/08/2011

1 Milwaukee

08/25/2010 Pub 2010 WI App 104

09/22/2010 REVW Affirmed 05/10/2011 2011 WI 28

1 Milwaukee

04/26/2010 Unpub

01/12/2011 REVW Oral Arg 04/15/2011

3 Marathon

Unpub

APPENDIX WISCONSIN SUPREME COURT PENDING CASES


Clerk of Supreme Court (608) 266-1880
Case No. 2009AP1422 Caption/Issue(s) Jessica L. Siebert v. Wisc. Amer. Mut. Ins. Co. Whether negligent entrustment of an automobile triggers insurance coverage where a jury has determined there is no coverage for negligent operation of the vehicle. Whether a jurys finding that an automobile operator acted outside the scope of the owners permission to use the vehicle precludes an injured passenger from showing that the owner negligently entrusted the operator with the car. 2009AP1469 / 2009AP1470 Covenant Healthcare System, Inc. v. City of Wauwatosa Whether a specific hospital outpatient facility is a tax exempt property under Wis. Stat. 70.11 (4m) (a) (2007 08). (See St. Clare Hosp. of Monroe, Wis., Inc. v. City of Monroe, 209 Wis. 2d 364, 563 N.W.2d 170 (Ct. App. 1997) and St. Elizabeth Hospital, Inc. v. City of Appleton, 141 Wis. 2d 787, 416 N.W.2d 620 (Ct. App. 1987)). 2009AP1557 260 North 12th Street, LLC v. State of Wisconsin Department of Transportation Whether there is a risk of double taking implicating due process violations in situations where the state reduces the just compensation award by contamination remediation estimates, while leaving open the potential for penalty assessments against the property owner for remediation costs under other regulations. 2009AP1558 John R. Steffens v. BlueCross BlueShield of Illinois Is an employment based (ERISA) healthcare plan entitled to reimbursement when a plan participant asserts in the course of personal injury litigation that corrective surgery resulted from an automobile accident and secures a settlement from the tortfeasor that compensates the cost of surgery? Whether a settlement from a tortfeasor to the plan participant can be construed to satisfy the third element of judicial estoppel in subsequent litigation; namely, that the party to be estopped has convinced the first court to adopt its position (See Harrison v. LIRC, 187 Wis. 2d 491, 497, 523 N.W.2d 138 (Ct. App. 1994)). 2009AP1579 State v. Edwin Clarence West Does 2005 Wis. Act 434 118 (codified at Wis. Stats. 980.08 (4) (cg)) shift the burden of proof at a supervised release hearing under Chapter 980 to the civilly-committed respondent? 01/11/2011 REVW Oral Arg 05/03/2011 1 Milwaukee Unpub 10/27/2010 REVW Oral Arg 03/01/2011 3 Outagamie 12/07/2010 REVW Oral Arg 04/15/2011 1 Milwaukee 09/29/2010 Pub 2010 WI App 125 SC Accepted 10/27/2010 REVW Oral Arg 03/02/2011 CA Dist/ Cty 3 Oneida CA Decision 07/28/2010 Pub 2010 WI App 94 325 Wis. 2d 740 787 N.W.2d 54

03/16/2011 REVW

1 Milwaukee

10/27/2010 Pub 2010 WI App 138 329 Wis. 2d 748 792 N.W.2d 572

09/29/2010 Unpub

NOTE: The statement of the issue is cursory and does not purport to be an all-inclusive, precise statement of the issues in the case. Readers interested in a case should determine the precise nature of the issues from the record and briefs filed with the Supreme Court. 12
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APPENDIX WISCONSIN SUPREME COURT PENDING CASES


Clerk of Supreme Court (608) 266-1880
Case No. 2009AP1643-CR Caption/Issue(s) State v. William Dinkins, Sr. Whether a soon-to-be-released prison inmate could be convicted for failing to comply with the address reporting requirement of Wis. Stat. 301.45 (2) (a) 5 when he allegedly did not have an address at least 10 days prior to his release from prison. 2009AP1669 Roger H. Fischer, Sr., et al. v. Pamela A. Steffen, et al. Whether the amount of an award to an injured plaintiff should be reduced by the amount that the plaintiffs insurer had paid for medical expenses pursuant to the analysis set forth in Paulson v. Allstate Ins. Co., 2003 WI 99, 263 Wis. 2d 520, 665 N.W.2d 744, even though the plaintiffs insurer, without notice to or participation by an injured plaintiff, arbitrated its claim against the defendants insurer in a separate arbitration proceeding and lost. Does the collateral source rule allow the plaintiff to collect all damages from a defendant and his/her insurer in such a situation? Is a distinction between medical expenses and property damage relevant to the question of whether a plaintiffs recovery can be reduced under a Paulson analysis? 2009AP1714 Emjay Investment Company v. Village of Germantown Whether Wis. Stat. ch. 66 permits a contingent special assessment rendering the 90-day appeal limitation of Wis. Stat. 66.0703 (12) (a) inapplicable. Did a municipality adopt a final resolution in accordance with Wis. Stat. 66.0703 (8) triggering application of the 90-day appeal limitation of Wis. Stat. 66.0703 (12) (a)? May the special assessment be challenged by a means not barred by the 90-day limitation of Wis. Stat. 66.0703 (12) (a)? 2009AP2021 Lake Beulah Management District v. Village of East Troy Whether the Department of Natural Resources, or municipalities and other governmental entities having the same powers as municipalities, or any other entity, has the authority to consider adverse environmental impacts of high capacity wells with capacities to withdraw less that two million gallons per day. 11/05/2010 REVW Oral Arg 04/13/2011 2 Walworth 09/29/2010 Pub 2010 WI App 127 09/22/2010 REVW Oral Arg 02/02/2011 2 Washington 07/28/2010 Unpub 09/21/2010 REVW Oral Arg 01/06/2011 2 Sheboygan SC Accepted 03/16/2011 REVW CA Dist/ Cty 4 Dodge CA Decision 12/14/2010 Pub 2010 WI App 163

05/26/2010 Pub 2010 WI App 68 325 Wis. 2d 382 783 N.W.2d 889

NOTE: The statement of the issue is cursory and does not purport to be an all-inclusive, precise statement of the issues in the case. Readers interested in a case should determine the precise nature of the issues from the record and briefs filed with the Supreme Court. 13
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APPENDIX WISCONSIN SUPREME COURT PENDING CASES


Clerk of Supreme Court (608) 266-1880
Case No. 2009AP2176 Caption/Issue(s) Dawn L. Maxwell v. Hartford Union High School District Does a policy of insurance contain actual coverage for amounts due under a performance contract and for lost salary and benefits, triggering a duty to indemnify for such amounts? Does Wisconsin law recognize an exception permitting the application of estoppel and waiver to create insurance coverage where none exists in the policy when, in the absence of bad faith or a breach of the duty to defend, an insurer provides a defense to an insured but does not issue a reservation of rights letter? If Wisconsin law recognizes the above exception, is prejudice to the insured present as a matter of law, or must an insured prove actual conflict of interest or other harm as a result of the insurers provision of the defense? When the element of waiver or equitable estoppel are met as a matter of law, must the court of appeals remand for the circuit court to exercise its discretion in deciding whether to apply the doctrines? If Wisconsin law recognizes the exception identified above, should the exception have retroactive application? 2009AP2315 Joyce Affeldt v. Green Lake County What is the distinction between a recorded and an unrecorded highway under the newly enacted Wis. Stat. ch. 82? Whether evidence of ancient fences, trees and buildings within an alleged right-of-way rebuts the presumption of a four-rod (66 feet) width accorded to an unrecorded highway under Wis. Stat. 82.31. Whether retroactive application of the four-rod statutory presumption to an unrecorded highway existing before the enactment of the statute violates the federal and state constitutional takings clauses. 10/27/2010 REVW Oral Arg 03/02/2011 2 Green Lake 08/25/2010 Unpub SC Accepted 02/08/2011 REVW CA Dist/ Cty 2 Washington CA Decision 09/29/2010 Pub 2010 WI App 128 329 Wis. 2d 654 791 N.W.2d 195

NOTE: The statement of the issue is cursory and does not purport to be an all-inclusive, precise statement of the issues in the case. Readers interested in a case should determine the precise nature of the issues from the record and briefs filed with the Supreme Court. 14
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APPENDIX WISCONSIN SUPREME COURT PENDING CASES


Clerk of Supreme Court (608) 266-1880
Case No. *2009AP2385 Caption/Issue(s) Todd Olson v. Robert Farrar What is the scope of review when an insurer provides its insured with an initial defense pursuant to a reservation of rights, moves to intervene, bifurcate and stay the coverage issues from the issues on the merits, and seeks a judicial declaration that the insurer owes no duty to defend nor indemnify? Whether the property damage resulted from a utility, boat, camp or mobile home trailer and the trailer was attached to a motor vehicle. Whether coverage is precluded by an exclusion in the policy concerning property used by or in the care of the insured. 2009AP2422-CR State v. David W. Domke Whether defendants counsel performed deficiently at trial under Strickland v. Washington, 466 U.S. 668 (1984) when he believed that testimony of a therapist was admissible over a hearsay objection and was not aware that the exception for medical diagnosis or treatment in Wis. Stat. 908.03(4) does not apply to a social worker. See State v. Huntingon, 216 Wis. 2d 671, 695, 575 N.W.2d 268 (1998). Did a defendant suffer prejudice under Strickland from the cumulative effect of trial counsels decision to call the victims mother as a witness and his failure to seek exclusion of a therapists testimony under Huntington? 2009AP2433-FT Patrick A. Topolski v. Ellen J. Topolski Whether an ex-spouses receipt of benefits under a pension plan constitutes retirement benefits, thereby triggering the property division of a divorce judgment, or disability benefits which do not implicate the property division. 2009AP2768 Joel Hirschhorn v. Auto-Owners Insurance Company Does a standard pollution exclusion in a homeowners insurance policy apply to exclude coverage for a loss caused by an odor emanating from an accumulation of bat guano so severe the house needed to be demolished? Does the standard pollution exclusion in a homeowners insurance policy apply to pollutants that result from natural processes or is the exclusion limited to industrial waste? 10/27/2010 REVW Oral Arg 03/01/2011 2 Waukesha Unpub 02/08/2011 REVW 3 Oconto Unpub SC Accepted 04/12/2011 REVW CA Dist/ Cty 4 Monroe CA Decision 12/14/2010 Pub 2010 WI App 165 330 Wis. 2d 611 794 N.W.2d 245

03/16/2011 REVW

3 Oneida

11/17/2010 Pub 2010 WI App 154 330 Wis. 2d 232 792 N.W.2d 639

NOTE: The statement of the issue is cursory and does not purport to be an all-inclusive, precise statement of the issues in the case. Readers interested in a case should determine the precise nature of the issues from the record and briefs filed with the Supreme Court. 15
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APPENDIX WISCONSIN SUPREME COURT PENDING CASES


Clerk of Supreme Court (608) 266-1880
Case No. 2009AP2784 Caption/Issue(s) Mark Klemm, et al. v. American Transmission Company, LLC Whether Wis. Stat. 32.28 (3) (d) requires litigation expenses to be awarded to a property owner who conveys property in lieu of condemnation with no jurisdictional offer issued, followed by an unappealed condemnation commission just compensation award which exceeds the certified amount paid to the property owner by more than $700 and 15%. 2009AP2795 Jaymie A. Gister, et al. v. American Family Mutual Ins. Co., et al. Whether a charitable hospital that is legally required to provide emergency medical services to all patients, including the uninsured, may enforce a hospital lien (Wis. Stat. 779.80) on a Medicaid recipients personal injury settlement from the tortfeasor as an alternative to billing Medicaid. Whether the hospital is forbidden from billing the patient because the patient was eligible for public medical assistance (See Wis. Stat. 49.49 (3m)) and, therefore, the patient does not owe a debt to the hospital that could be subject to a lien under Wis. Stat. 779.80. 2009AP2845-W Madison Metro. School Dist. v. Circuit Court for Dane County Whether a circuit court, pursuant to Wis. Stat. 120.12(18) (school district has a duty to coordinate and provide continuity of educational programming for pupils receiving education services as the result of a court order under 938.34(7d)) and 938.45 (court may take certain actions if the district contributed to delinquency of minor) has the authority to craft an order which would override a school districts prior determination to expel a juvenile under 120.13(1)1. 2009AP2907-CR State v. Joseph J. Spaeth Whether compelled incriminating statements made to a probation agent as part of a standard requirement of probation under Wis. Admin. Code DOC 328.04(2)(w) may be considered a legitimate source wholly independent of compelled testimony under Kastigar v. United States, 406 U.S. 441 (1972). 10/27/2010 REVW Oral Arg 03/01/2011 4 Dane Unpub SC Accepted 01/12/2011 REVW Oral Arg 04/14/2011 CA Dist/ Cty 3 Marathon CA Decision 09/29/2010 Pub 2010 WI App 131

03/16/2011 REVW

4 Dane

12/14/2010 Unpub

02/08/2011 CERT

2 Winnebago

NOTE: The statement of the issue is cursory and does not purport to be an all-inclusive, precise statement of the issues in the case. Readers interested in a case should determine the precise nature of the issues from the record and briefs filed with the Supreme Court. 16
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APPENDIX WISCONSIN SUPREME COURT PENDING CASES


Clerk of Supreme Court (608) 266-1880
Case No. 2009AP2934-CR Caption/Issue(s) State v. Deandre A. Buchanan Under the totality of the circumstances, did the law enforcement officer have an objectively reasonable suspicion that the defendant was armed and dangerous? Did the trial court err in concluding that contraband found in the defendants vehicle was in plain view? 2009AP2973 Tammy W-G. v. Jacob T. Whether State v. Quinsanna D., 2002 WI App 318, 259 Wis. 2d 429, 655 N.W.2d 752 may be inconsistent with both the language of Wis. Stat. 48.415(6) and constitutional due process rights that must be accorded parents before parental rights may be terminated? *2009AP3029 Crown Castle USA, Inc. v. Orion Logistics, LLC Whether Wis. Stat. 816.03 (b) permits a supplemental proceeding against an entity which is neither a party to the action nor a judgment debtor. Whether the court has personal jurisdiction over the entity which is neither a party to the action nor a judgment debtor. *2010AP177 Suzanne R. May v. Michael T. May Whether an agreement to an unmodifiable child support floor for 33 months violates public policy (Cf. Jalovec v. Jalovec, 2007 WI App 206, 305 Wis. 2d 467, 739 N.W.2d 834 and Frisch v. Henrichs, 2007 WI 102, 74 n.23, 304 Wis. 2d 1, 736 N.W.2d 85). *2010AP355 Heritage Farms, Inc., et al. v. Markel Insurance Company, et al. Whether Wis. Stat. 26.21 (1) creates a presumptive double damage award once there is a finding that damage occurred through willfulness, malice or negligence. 04/12/2011 REVW 4 Portage 01/31/2011 Pub 2011 WI App 12 ___ Wis. 2d ___ 793 N.W.2d 896 04/13/2011 CERT 4 Dane -05/13/2010 CERT Oral Arg 10/01/2010 4 Grant -SC Accepted 01/11/2011 REVW Oral Arg 04/19/2011 CA Dist/ Cty 3 Trempealea u CA Decision Unpub

04/12/2011 REVW

3 Outagamie

01/31/2011 Pub 2011 WI App 9 ___ Wis. 2d ___ 794 N.W.2d 272

NOTE: The statement of the issue is cursory and does not purport to be an all-inclusive, precise statement of the issues in the case. Readers interested in a case should determine the precise nature of the issues from the record and briefs filed with the Supreme Court. 17
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APPENDIX WISCONSIN SUPREME COURT PENDING CASES


Clerk of Supreme Court (608) 266-1880
Case No. *2010AP387-CR Caption/Issue(s) In the Matter of Sanctions Imposed in State v. Gregory K. Nielsen Does the court of appeals practice of summarily imposing monetary sanctions in its written decisions violate due process? Does the court of appeals practice of summarily imposing monetary sanctions in its written decisions for perceived attorney professional ethics infractions violate due process and impermissibly supplant procedures established by the supreme court for resolving professional ethics issues? Is Wis. Stat. Rule 809.19 (2) Appendix, unconstitutionally vague on its face or as applied for purposes of imposing monetary sanctions? 2010AP445-CR State v. Sharon A. Sellhausen Must a circuit court judge sua sponte remove an immediate family member from a panel of potential jurors? If a circuit court judge does not sua sponte remove an immediate family member from a panel of potential jurors, is the defendant entitled to a new trial if the family member did not sit on the jury but the defendant exercised a peremptory strike to remove the family member? 2010AP772-CR State v. Carl L. Dowdy Do circuit courts have authority under Wis. Stat. 973.09 (3) (a) to reduce the length of probation? Do circuit courts have inherent authority to reduce the length of probation? If a circuit court has inherent authority to reduce the length of probation, what standard of review applies? *2010AP1113-CR State v. Jason E. Goss Whether Wis. Stat. 343.303, which carries a prohibited alcohol concentration of 0.02%, applies to subject a motorist with four prior OWI convictions to a preliminary breath screening test based on a lower level of evidence supporting probable cause. 04/12/2011 REVW 3 Eau Claire Unpub 03/16/2011 REVW 1 Milwaukee 11/17/2010 Pub 2010 WI App 158 ___ Wis. 2d ___ 792 N.W.2d 230 02/08/2011 REVW 2 Sheboygan 12/14/2010 Pub 2010 WI App 175 SC Accepted 04/12/2011 REVW CA Dist/ Cty 2 Racine CA Decision Unpub

NOTE: The statement of the issue is cursory and does not purport to be an all-inclusive, precise statement of the issues in the case. Readers interested in a case should determine the precise nature of the issues from the record and briefs filed with the Supreme Court. 18
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APPENDIX WISCONSIN SUPREME COURT PENDING CASES


Clerk of Supreme Court (608) 266-1880
Case No. 2010AP1142 Caption/Issue(s) State v. Glen D. Nordberg Whether the court of appeals' decision in State v. Rachel, 2010 WI App 60, 324 Wis. 2d 441, 782 N.W.2d 443, erroneously places the burden of persuasion on the committed patient to satisfy the criteria in Wis. Stat. 980.08(4)(cg) for granting supervised release from a Chapter 980 commitment. Whether requiring a committed individual to satisfy the criteria for supervised release under Wis. Stat. 980.08(4)(cg) by clear and convincing evidence is too onerous a burden. 2010AP1937-OA Wisconsin Prosperity Network, et al. v. Gordon Myse, et al. Whether Wis. Admin. Code GAB 1.28 violates constitutional guarantees of free speech. 11/30/2010 ORIG 4 Dane -SC Accepted 03/18/2011 BYPA CA Dist/ Cty 4 Jefferson CA Decision --

NOTE: The statement of the issue is cursory and does not purport to be an all-inclusive, precise statement of the issues in the case. Readers interested in a case should determine the precise nature of the issues from the record and briefs filed with the Supreme Court. 19
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