Supreme court will hear case involving life sentence of 14-year-old boy, among others 

Oct. 13, 2010 – Among the 18 new cases slated for review by the Wisconsin Supreme Court is a high-profile case in which the court will decide whether sentencing a 14-year-old to life imprisonment constitutes cruel and unusual punishment.

In 1998, 14-year old Omar Ninham pushed a 13-year-old boy off the fifth story of a parking ramp and was later convicted and sentenced to life without parole. After arrest, Ninham threatened a judge and three witnesses, including a woman he threatened to rape.

The court of appeals in State v. Ninham, 2001AP716-CR (Dec. 4, 2001) ruled that “[a] sentence to life without the possibility of parole for a crime committed by a 14-year-old does not per se violate the constitutional prohibition against cruel and unusual punishment.”

Ten years later, Ninham argues that the U.S. Supreme Court case of Roper v. Simmons, 543 U.S. 551 (2005) warrants a revised sentence. In that case, the high court ruled that the Eighth Amendment prohibits execution of juveniles.

Ninham, represented by the Equal Justice Initiative, asserts that U.S. Supreme Court precedent under Roper requires a specialized inquiry into the constitutionality of sentencing a 14-year old to life without possibility of parole. This specialized inquiry, Ninham argues, should take into consideration the offender’s age and level of development at the time of the offense.

In addition, Ninham argues that new scientific evidence relating to adolescent brain development is highly relevant in considering a revised sentence, an argument the court of appeals rejected.

The decision could clarify the constitutionality of sentencing a juvenile to life imprisonment in light of recent U.S. Supreme Court rulings.

The supreme court will also review 17 other cases in various areas of law. The cases, and the issues presented, are listed below. 

Civil procedure 

Rasmussen v. General Motors Corp., 2007AP35

• Issue: whether the Court of Appeals erred in holding that Wisconsin’s long-arm statute does not subject Nissan Japan to personal jurisdiction in Wisconsin?        

E-Z Roll Off v. County of Oneida, 2009AP775

• Issue 1: Whether the notice requirements mandated by Wis. Stat. §893.80(1) and §59.07 apply to Plaintiff-Respondent E-Z Roll Off LLC’s action for declaratory relief under Wis. Stat. §133.03 and damages alleged?  

• Issue 2: Whether the notice of injury was timely?

• Issue 3: Whether Oneida County had actual notice of the injury and was it prejudiced because it was not timely served with the notice of injury?

•  Issue 4: Whether the continuing violations doctrine applies to Wis. Stat. §893.80(1)?

Emjay Inv. Co. v. Village of Germantown, 2009AP1714

• Issue 1: Whether Wis. Stat. Ch. 66 permits a “contingent” special assessment, rendering the 90-day limitation inapplicable?

• Issue 2: Whether the the Village’s failure to adopt a final resolution in compliance with § 66.0703(8)(c) precludes application of the the 90-day limitation?

• Issue 3: Whether Emjay can challenge the special assessment by means not barred by the 90-day limitation?

Property and land use law 

Ottman v. Town of Primrose, 2008AP3182

• Issue 1: Whether the current judicial rule on deference to land use decisions by smaller units of government overly insulates the balancing of community interests and individual property rights from judicial review?

• Issue 2: Whether, if the town is engaged in regulation of the use of land such that statutory certiorari applies and the judicial rule limited the scope of statutory certiorari should be overruled?

• Issue 3: Whether the decision by the town fails to withstand conscientious judicial scrutiny of the basis for deference and the customary standard of judicial review?

Boerst v. Henn, 2009AP1559

• Issue: Whether the “doctrine of acquiescence” allows mistaken boundaries to become legal boundaries after 20 years of mistaken belief has passed? 

Consumer law 

Kilian v. Mercedes Benz, 2009AP538

• Issue 1: Whether a consumer is entitled to an award of attorney fees where the consumer sues for rescission of a motor vehicle lease to stop the lessor’s enforcement of the lease but the consumer did not suffer a separate pecuniary loss?

• Issue 2: Whether a consumer suffers damages where attorney fees are incurred to block the enforcement of a motor vehicle lease?

• Issue 3: Whether a consumer can recover damages for defamation that is a direct result of enforcement of a motor vehicle lease?

Employment law 

DeBoer Transp. v. Swenson, 2009AP564

• Issue 1: Whether Wisconsin statute requires employers to provide injured workers special accommodations for personal obligations not provided to uninjured workers?

• Issue 2: If Wisconsin statute 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?

Evidence 

State v. Beauchamp, 2009AP806-CR

• Issue: Whether “dying declarations” made under the circumstances presented constitute a permissible exception to the confrontation clause of the Sixth Amendment to the U.S. Constitution?

Family law

Brown County DHS v. Brenda B., 2010AP321

• Issue: Whether the trial court acted properly in denying a motion to withdraw a no contest plea without an evidentiary hearing in a parental termination case?

Corporate law

Polsky v. Virnich, 2007AP203

• Issue 1: Whether the holding of Beloit Liquidating prohibits receivers from asserting claims, on the corporation’s behalf, of breach of fiduciary duty to the corporation?

• Issue 2: Whether officers and directors, who self deal against the corporation’s interests, enjoy a “unity of interest” with the corporation, mandating application of the intracorporate conspiracy doctrine?

• Issue 3: Whether a conspiracy claim is actionable without an underlying actionable violation of an independent right?

• Issue 4: Whether a corporation’s tort claim accrues before the claim is capable of enforcement when the tortfeasors are the only individuals who can enable the corporation to assert the claim?

Insurance law 

Day v. Allstate Indemnity, 2008AP2929

• Issue 1: Whether the Allstate family exclusion provision unambiguously precludes coverage in the context of a wrongful death claim brought by someone other than an insured person?

• Issue 2: Whether public policy precludes application of a family exclusion provision in the context of a wrongful death claim brought by a plaintiff who is not a family member, is not an insured person, and who does not have any family ties with the insured tortfeasor, against a tortfeasor who is not partial to the plaintiff based on family ties, under circumstances where the insured tortfeasor will certainly cooperate and assist the insurer in defending the claim? 

Fischer v. Steffen, 2009AP1669

• Issue 1: Whether an insurer can settle or arbitrate a subrogation claim for medical expenses before there has been a determination that the plaintiff insured has been made whole?

Tax law 

Stupar River v. Town of Linwood Board of Review, 2009AP191

• Issue: Whether a property assessment was proper, and whether Stupar River, LLC is entitled to reimbursement and interest due to an over-assessment?

Criminal law 

State v. Harbor, 2009AP1252

• Issue: Whether a court may modify a sentence because of a “new factor,” and whether a defendant was denied effective assistance of counsel because her lawyer failed to present or investigate pertinent sentencing factors?

State v. Burris, 2009AP956-CR

• Issue: What deference is to be given to a circuit court’s discretionary use of jury instruction, based on supreme court opinions? 

State v. Funk, 2008AP2765-CR

• Issue: What is the proper test to determine if a juror is biased?

State v. Rhodes, 2009AP25-CR

• Issue 1: Did the court of appeals correctly apply the constitutional principles of law governing confrontation and compulsory process when it concluded that the circuit court impermissibly limited the defendant's cross examination of a state witness?

• Issue 2: if the answer to issue 1 is “yes,” was the circuit court’s error harmless?