Sep. 6, 2018 – The Wisconsin Supreme Court held its first oral arguments of the term yesterday. It was the first set of cases for the court’s newest member, Justice Rebecca Dallet, while the court's most senior member, Justice Shirley Abrahamson, began the last year of a judicial career that spans five decades.

Justice Abrahamson, who has served on the supreme court for 42 years, recently disclosed her cancer diagnosis. But the former chief justice made it clear that she will serve out the remainder of her fourth and final 10-year term, which ends next summer.

“The people of this state elected me to a position of public trust and responsibility, and I intend to keep that commitment,” wrote Justice Abrahamson, noting that she would participate by phone occasionally or require a wheelchair for in-person participation.

She noted that other Wisconsin justices have continued to serve while fighting illnesses over the years, as did former U.S. Supreme Court Justice William Rehnquist, and colleagues have participated by phone for a variety of reasons in the past.

Yesterday, Justice Abrahamson participated by phone as the court heard State v. Wayerski, a sexual assault case against a former police chief, and Secura Insurance v. Ray Duerr Logging LLC, an insurance case that stemmed from a 7,400-acre forest fire.

State v. Wayerski

In this case, the police chief for two villages in Dunn County was charged with eight counts of sexual assault by a person who works or volunteers with children, among other charges. The complaint alleged Wayerski sexually assaulted two teenage boys.

Wayerski denied the allegations and argued the boys were troubled delinquents who framed him. Four witnesses supported Wayerski’s defense theory. In rebuttal, however, the state called a jailhouse witness, John Clarke, who said Wayerski confessed to him.

In surrebuttal, defense counsel did not ask Wayerski whether the Clark’s claims were true, that is, whether Wayerski told Clarke he sexually assaulted the teenage boys.

In addition, before trial, the prosecutor had discovered, on CCAP, that the Clarke had pending criminal charges against him in another county but did not inform Wayerski’s trial defense counsel and those pending charges did not come to light at trial.

On appeal, Wayerski argued that his defense counsel was ineffective for failing to ask Wayerski if he made the statements of admission to Clarke. Failing to do so, Wayerski argued, may have influenced the jury to think Wayerski made those statements.

He also argued that the prosecutor violated the state’s obligation to turn over material, exculpatory evidence by not disclosing the pending charges against Clarke, which would have allowed Weyerski’s lawyer to further attack Clarke’s credibility as a witness.

The appeals court had ruled that disclosure wasn’t necessary because the information is now publicly available on CCAP and thus there is no “intolerable burden” on the defense to find it. That is, such information is no longer in the state’s exclusive control.

On this point, Justice Rebecca Dallet raised her first oral argument question as a member of the Wisconsin Supreme Court, about 12 minutes into the argument.

“Do you see a distinction, Mr. Hunt, between charges versus a conviction, in terms of the information … and the exclusive control of the state,” Justice Dallet asked. Wayerski’s counsel, Edward Hunt, said he thought there was a distinction.

Justice Dallet also asked whether Weyerski’s trial attorney would have been required to retrieve a copy of the criminal complaint against Clarke from the courthouse in the county where Clarke was charged, or whether that information is on CCAP.

Hunt, Weyerski’s lawyer, said the criminal complaint would not be on CCAP and Wayerski’s trial counsel would have been required to retrieve it from the courthouse. “They would have to travel to a different county to get that complaint,” Hunt said.

Finally, on this line of questioning, Justice Dallet asked: “In terms of CCAP access, it depends obviously on internet access, ability to pull up the information, can you address, if this was a pro se defendant, how that access would work?”

Hunt said a pro se defendant would be sunk. “If she didn’t have internet access, she would be depending on the good graces of the prosecution,” noted Hunt, who reiterated the argument that the prosecution was required to disclose the charges against Clarke.

Hunt said the public defender in this case should not be expected to check CCAP every day before trial to see whether there were new charges filed against Clarke. The prosecution had the information and should have disclosed it to the defense.

Chief Justice Roggensack chimed in. Assuming the prosecutor should have disclosed the charges to the defense, the chief justice said, “I’d like you to address whether that error …was harmless error.” The lower appeals court had ruled that any failure to disclose by the prosecutor was harmless, given the other evidence against Wayerski.

Secura Insurance v. Ray Duerr Logging LLC

The Secura Insurance case stemmed from the so-called “German Road Fire” of 2013, in Douglas County, a forest fire that destroyed buildings and personal property. A timber cutting machine sparked the blaze, which burned across 7,400 acres over three days.

Ray Duerr Logging LLC (Duerr) owned the timber cutter. At the time, Duerr had a commercial general liability policy that with Secura Insurance, with a $500,000 policy limit for bodily injuries and property damage arising out of “any one occurrence.”

An “occurrence,” as defined in the policy, was “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” Regardless of the number of occurrences, the total policy limit was $2 million.

Duerr argued that the damages arose from one “occurrence,” meaning the insurer was only obligated to pay $500,000 under the policy. But the circuit court ruled that the $2 million cap applied, because there was a separate “occurrence” each time the fire crossed each claimant’s property line. The appeals court affirmed the circuit court decision.

On appeal, Secura Insurance argued that that “cause theory” still applies in Wisconsin, that a “single, uninterrupted cause which results in a number of injuries or separate instances of property damage” is one “accident” or one “occurrence.”

In this case, that single damage-causing occurrence was the spark that fueled a grass fire and burned uninterrupted across more than 7,000 acres in Douglas County.

Holding otherwise may have absurd results, argued attorney Patryk Silver for Secura Insurance. He provided hypotheticals of one house fire that burns five valuable pieces of art in separate rooms, or a bacterial infection the spreads throughout one’s body, causing different ailments, all stemming from a rusty nail on which the claimant stepped.

“If you treat each individual instance of injury or damage as a separate occurrence, there’s no reasonable stopping point,” Silver argued. “It runs afoul of common sense.”

Numerous justices questioned, with skepticism, whether a separate occurrence triggers when a forest fire with a single source crosses multiple property lines. But attorney Erik Pless, co-counsel representing numerous claimants, said there is precedent to support that, noting Wilson Mut. Ins. Co. v. Falk, 2014 WI 136, 360 Wis. 2d 67, 857 N.W.2d 156.

In Falk, the claimants argued there was a new “occurrence” each time a unique well on their property was contaminated by manure, even though the contamination stemmed from one event: the negligent spreading of manure by their neighbor on adjacent land.

“We conclude the Wilson Mutual policy makes an initial grant of coverage because the exposure of manure to each unique well constituted an occurrence under the Wilson Mutual policy,” wrote Justice Michael Gableman, who retired after last term.

In the instant case, the appeals court relied on Falk to conclude that there were multiple “occurrences,” despite Secura’s argument that Falk was distinguishable.

The supreme court will hear three more cases tomorrow, Sep. 7. The court’s website has oral argument schedules, with a synopsis on upcoming cases for the month.