March 4, 2010 – A number of Wisconsin Supreme Court cases are scheduled for oral argument in March. Read a summary of these cases.
State v. Michael Hess (2008AP2231-CR)
This is a case of first impression in Wisconsin addressing the application of the good-faith exception in the context of an arrest warrant rather than a search warrant. In this case, a Walworth County Circuit Court judge issued a civil bench warrant for the arrest of Michael R. Hess, who was convicted of his sixth offense of operating a motor vehicle while intoxicated, and then failed to respond to request to be interviewed for a pre-sentence investigation. Upon his arrest, the arresting deputy smelled alcohol on Hess’s breath, and a blood test confirmed blood-alcohol concentration of 0.118 percent.
Hess filed a motion to suppress the evidence of this alcohol consumption, arguing it was seized as a result of an illegal arrest warrant. The circuit court denied the motion, and the court of appeals reversed and remanded for a new trial, concluding the circuit court had no authority to issue the arrest warrant. The state contends the good-faith exception to the exclusionary rule should apply because issuing the warrant was solely a judicial error.
State v. Michael A. Sveum (2008AP658)
In this case, the supreme court is asked to consider whether a defendant’s constitutional rights, or state statute, were violated when police placed a global positioning system (GPS) device on his car and recorded its movements. Sveum was convicted of stalking a woman and was imprisoned as a result. He continued to stalk the woman from prison and after his release from prison. The woman reported this to the police, and the police obtained an order authorizing them to covertly attach a GPS device to Sveum’s car. Based on the tracking information, the police obtained a search warrant, which revealed additional evidence incriminating Sveum. Sveum was then charged with aggravated stalking.
Sveum filed a motion, which was denied by the Dane County Circuit Court, to suppress the evidence obtained from the GPS device and the search of his car and home. Sveum was convicted and sentenced to prison and extended supervision. On appeal, the court of appeals concluded there was no violation of the Fourth Amendment. Sveum appeals to the supreme court, and asks it to review whether Wisconsin’s electronic surveillance law, § 968.27-.37, requires the police to obtain judicial approval to place a GPS device on a vehicle to record its travel.
MercyCare v. Wisconsin Commissioner of Insurance (2008AP2937)
This certification from the court of appeals asks the supreme court to decide if an insurer can exclude maternity coverage for a surrogate mother under Wis. Stat. § 632.895(7), and how much deference should be given to a decision by the Wisconsin Office of the Commissioner of Insurance (OCI).
Two women who served as surrogate mothers were denied pregnancy benefit coverage by MercyCare. The women filed a complaint with the OCI, which upon a hearing, concluded that MercyCare could not deny benefits for medical services to covered people who act as gestational carriers or traditional surrogate mothers. MercyCare petitioned the Rock County Circuit Court, which reversed. OCI appealed to the court of appeals, resulting in this certification. The OCI argues that great weight deference is appropriate because it is charged with the administration of the statute in question. MercyCare contends that OCI never previously interpreted the particular statutory language at issue, and therefore the issue should be decided by the supreme court.
Glen D. Hocking v. City of Dodgeville (2008AP2812)
The Hockings had a home that was downhill from defendant City of Dodgeville’s property. The Hockings claim that defendants caused significant damage to their property due to storm water drainage from the defendant’s property into theirs. Mr. Hocking, over several years, had discussions with city officials regarding the drainage problem, and the city officials’ responses led him to believe the city would take care of the problem. However, in 2003, a city official informed Mr. Hocking that the city would not be doing anything to stop the water flow into his property.
In 2006, the Hockings sued the City of Dodgeville, and the circuit court dismissed the suit under Wis. Stat. § 893.89 because it was filed more than 10 years after substantial completion of the subdivision (that caused the water damage). The Hockings appealed, and the court of appeals affirmed the circuit court’s decision. Therefore, the Hockings ask the supreme court to review whether the city’s representations that it would address the water drainage issue would qualify as an exception under Wis. Stat. § 893.89(4)(b) and whether the city’s negligence in maintaining a nuisance on property it owned qualified as an exception under § 893.89(4)(c).
Roehl Transport Inc. v. Liberty Mutual Ins. Co. (2008AP1303)
In this case, the supreme court is being asked to clarify (1) whether Wisconsin law recognizes a bad-faith claim by an insured against its liability insurer for failure to reasonably defend the insured’s unusually high deductible; and (2) whether attorney’s fees in a bad-faith action must be decided by a jury, or awarded post-trial by the trial court.
Walter Tatera et al. v. FMC Corporation (2008AP170)
The supreme court, in this asbestos-related case, is asked to clarify several issues related to negligence and the definition of extra-hazardous work. Walter Tatera, who died of malignant mesothelioma, had been exposed to asbestos while working for nearly 30 years at B&M Machine. B&M is an independent contractor that modified the brake disks manufactured by FMC suppliers.
Tatera’s wife Vicki sued FMC claiming negligence and strict liability, and the trial court dismissed the action on summary judgment, ruling that Vicki failed to demonstrate a claim. The court of appeals reversed with respect to negligence but affirmed the dismissal of the strict liability claim. FMC asks the supreme court to review (1) whether the facts fit within the two narrow exceptions to the general rule that a principal employer is not liable in tort for injuries sustained by an employee of independent contractors; (2) whether an affirmative act of negligence would include failure to warn; and (3) whether abnormally dangerous or extra-hazardous work includes machining asbestos-containing friction disks.
Michael Pries v. Raymond McMillon (2008AP89)
Raymond McMillon is a State Fair Park employee, and Michael Pries is an inmate of the House of Corrections who was injured while working at State Fair Park as part of an inmate work crew. The issue is the law related to public officer immunity and how exceptions to that law may apply to the facts of this case.
Pries was injured while working with other inmates to dismantle horse stalls at State Fair Park. Pries and a number of other inmates testified that sections of the horse stalls fell after McMillon tried to loosen a piece of stall by standing or jumping on it and then shaking it. McMillon denies he was near the stalls when they began to fall. Pries sued McMillon and Wisconsin State Fair Park’s liability insurer, alleging that Pries was injured when McMillon, in the scope of his employment, unexpectedly and negligently caused the section of the stall to collapse and fall on Pries. McMillon filed motions to dismiss and for summary judgment, claiming discretionary act immunity, which is a qualified immunity for a public officials’ act, granted when the act in question required the exercise of judgment in carrying out official duties. Both motions were denied, and the circuit court found McMillon was not immune from liability. The court of appeals agreed. McMillon asks for review by the supreme court and seeks to have the Court clarify the outlines of the known danger exception to governmental immunity.
Society Ins. and James Meyer, Inc. v. LIRC (2008AP3135)
The Wisconsin Court of Appeals requests the supreme court to review whether the Legislature violated the constitutional rights of employers and their worker’s compensation carriers by retroactively shifting the burden of ongoing disability compensation from the state to the insurer.
After a worker’s compensation claim was filed by an injured employee of James Meyer, Inc., the employer’s insurance company, Society Insurance, paid the benefits it was required to under its policy. According to the worker’s compensation law as it read at the time of the injury, under Wis. Stat. § 102.17(4), specifically the 12-year statute of limitations, Society’s liability for the employee’s medical claims would have expired in 2002, and subsequent payments would have been paid from the Work Injury Supplemental Benefit Fund (WISBF). However, after the employee filed for additional claims in 2004, an administrative law judge determined that Society was liable for the ongoing expenses in light of a revised statute of limitations, which shifted liability for expenses accruing after 12 years to the worker’s compensation insurer unless those expenses arise from an “occupational disease.” Society appealed the decision to the Labor and Industry Review Commission (LIRC), which affirmed and adopted the administrative law judge’s decision as its own. Society then sought review in the circuit court, arguing that retroactive application of the statute of limitations was unconstitutional. The circuit court agreed. WISBF appealed, leading to this certification from the court of appeals to the supreme court to clarify the constitutional issues.
