Criminal bias

Jonathan Ekman's Letter to the Editor in the University of Chicago magazine, September-October 2007 with reply from article author Joshua Correll

Review granted in 'State v. Keyes'

(2004AP1104-CR and 2004AP1105-CR)

This case examines how Wis. Stat. § 779.02 (5), Wisconsin’s theft by contractor statute, applies to a situation where a prime contractor also acts as a subcontractor and takes a profit on materials it supplies to a project before all other subcontractors are paid.

Some background: In 2001, Jim and Rose Wettstein entered into a written design-build agreement with Keyes to Design (owned by Matthew and Angela Keys) to build a home in Onalaska. The agreement set out the services and the payment process. Keyes to Design was to receive monthly payments for its prime contractor services and Wis. Stat. [sic] to be paid for Matthew Keyes' labor at the rate of $50/hour. The agreement did not identify specific subcontractors who were to perform parts of the work, although the

Keyes assert that the Wettsteins approved proposals that showed that Angela Keyes was to provide certain materials for the house. The payments for these materials that the Keyes took from the construction draws allegedly included Angela Keyes' profits.

At some point, the title company that was retained to administer the draws went to the construction site and concluded that the percentage of completion did not correspond to the amount of draws to date. The Wettsteins eventually terminated the contract with Keyes to Design and kicked the Keyes off the building site. At that time there were unpaid amounts still owing to a number of subcontractors. The Keyes were eventually charged with violating the theft by contractor statute.

The Keyes appealed the circuit court’s pre-trial decision that there was probable cause to believe they violated the theft by contractor statute. The Court of Appeals affirmed [2007 WI App 163].

A decision by the Supreme Court could clarify the theft by contractor statute and provide guidance to lower courts and contractors about what is allowed or prohibited under the statute. From La Crosse County.

Review granted in 'Rao v. WMA Securities, Inc.'

(2006AP813)

The issue raised in this financial theft case is whether the defendant company was denied its claimed constitutional right to a jury trial on damages and whether punitive damages are available for failure to comply with discovery.

Between January 2000 and January 2003, David Novak, an employee of the defendant, stole hundreds of thousands of dollars from the account of plaintiff Ramachandra Rao. In April 2001, the defendant had terminated David Novak, also a defendant, for theft from a co-worker, but Rao was not notified.

Rao filed suit against WMA, Novak and others, claiming Novak stole a substantial amount of money, and that the defendant was vicariously liable for the thefts. Rao also alleged that the defendant was directly liable for intentional and negligent misrepresentation.

During discovery, Rao was dissatisfied with responses from WMA president Barry Clause, and moved to compel discovery. The circuit court granted the motion, as well as a second order compelling discovery.

In May 2005, the circuit court concluded that the defendant’s submissions were unreasonably late and ordered the defendant to pay $2,000 to the plaintiff’s attorneys. The circuit court eventually struck the defendant’s answer and entered default judgment in favor of Rao.

The circuit court awarded the plaintiff more than $500,000 in damages. The Court of Appeals [in an unpublished opinion] affirmed in part, reversed in part, and remanded. The Court of Appeals affirmed the circuit court’s decision to strike the defendant’s answer and to enter default judgment in

favor of the plaintiff. But the Court of Appeals also concluded that the circuit court did err in denying the defendant the right to present evidence showing a lesser amount of damages than claimed by the plaintiff.

The Supreme Court could decide if the defendant was entitled to a jury trial on the issues of damages following the entry of default judgment on the issue of liability and whether an award of punitive damages based on a failure to disclose information should be precluded. From Rock County.

Review granted in 'C. Coakley Relocation Systems v. City of Milwaukee'

(2006AP2292)

This case examines how the statute of limitations applies in a case involving the City of Milwaukee's exercise of its eminent domain authority on a parking lot used by C. Coakley Relocation Systems, a moving and storage company.

Some background: On Jan. 30, 2002, the city took possession of the parking lot to create a new street design in conjunction with the demolition of the Park East Freeway. The city claimed that Coakley was not a "displaced person" under Wis. Stat. § 32.19 (2) (e) and was not entitled to relocation payments.

The circuit court agreed with the city’s position, but the Court of Appeals sided with Coakley, concluding Coakley was entitled to a comparable replacement property.

After negotiations, the City offered, but Coakley rejected, $30,000 to resolve the lease of comparable replacement parking. On Dec. 13, 2004, Coakley served the City with a notice of claim to which the city did not respond.

On Sept. 29, 2005, Coakley filed a lawsuit, seeking damages and relief for relocation assistance benefits. The city moved to dismiss on the ground that the two-year statute of limitation barred the complaint.

The circuit court allowed Coakley to amend its complaint, but ultimately dismissed it – a decision upheld by the Court of Appeals [2007 WI APP 209]. Coakley contends the decision, if it stands, will result in the abuse of condemnation powers and fosters a policy of exploitation.

A decision by the Supreme Court could clarify how the statute of limitations applies in this case. In order to have prevented the statute of limitation time limit from beginning to run, Coakley alleges it would have had to avoid giving the city possession of the property. However, the company did so to comply with a court order to vacate, Coakley contends. From Milwaukee County.

Review granted in 'Hornback v. Archdiocese of Milwaukee'

(2006AP291)

This case examines the statute of limitations as it relates to civil cases involving alleged sexual assault of a child, and whether the First Amendment bars civil actions against a religious organization for damages resulting from such assaults.

Some background: In October of 2005, Kenneth Hornback, Dennis L. Bolton, Ronald W. Kuhl, David W. Schaeffer and Glenn M. Bonn sued the Milwaukee Archdiocese and the Madison Diocese.

They allege that from 1968 to 1973, Gary T. Kazmarek, a school teacher in the Louisville, Kentucky Archdiocese, sexually abused them and that the Milwaukee Archdiocese and Madison Diocese "knew or should have known of Kazmarek’s propensity for sexually abusing children."

The lawsuit claims that from approximately 1964 to 1966, Kazmarek taught at a school in the Milwaukee Archdiocese where he allegedly sexually abused "more than two dozen children." After Kazmarek taught at a school in the Milwaukee Archdiocese, he taught at a school in the Madison Diocese where he allegedly sexually abused "up to ten children."

According to the complaint, the Milwaukee Archdiocese’s and the Madison Diocese’s alleged negligence, which the appellants claimed they did not discover until October of 2002, "was a substantial factor in causing Kazmarek’s sexual abuse of the" appellants.

The Court of Appeals [in an unpublished opinion] determined that the circuit court did not err when it concluded that the petitioners’ claims were barred by the statute of limitations. A decision by the Supreme Court could clarify how previous court decisions, employment law and tort law relate to this case. From Milwaukee County.

Review granted in 'Novell v. Migliaccio'

(2005AP2852)

This dispute arises out of the sale of a home with a leaking basement. The issue before the Supreme Court is whether "justifiable reliance" is an element of a false advertising claim brought under Wis. Stat. § 100.18.

The circuit court granted the sellers, Anthony and Andrea Migliaccio, summary judgment against the buyer, Chad Novell. The Court of Appeals affirmed [in an unpublished opinion] on all but the false advertising claim, on which they reversed and remanded for trial.

The sellers allegedly misrepresented whether they knew about previous water damage, but the buyer ignored a building inspector’s recommendation to obtain an expert assessment of the basement based on the inspector’s suspicion that the basement has water problems. After the sale, water damage was discovered.

The Supreme Court could decide if the homebuyer’s claim of reliance on a seller’s misrepresentations in the face of the inspector’s recommendation should be deemed unreasonable as a matter of law. From Milwaukee County.

Review granted in 'State v. Straszkowski'

(2006AP64-CR)

The issue presented in this case is whether a defendant’s plea was unknowing and involuntary because he allegedly didn’t know that a dismissed charge would be read in for sentencing purposes and what the effect of reading in would be.

Some background: David G. Straszkowski was a defendant in a number of criminal cases in Clark County. Pursuant to a plea agreement, Straszkowski pled guilty to one count of second-degree sexual assault of a child, one count of possession of drug paraphernalia, and one count of issuing a worthless check. In exchange for those guilty pleas, a second charge of second-degree sexual assault of a child and a second charge of issuing a worthless check were dismissed and read in for sentencing purposes.

The pre-sentence investigation report recommended some jail time and probation. However, the circuit court sentenced Straszkowski to five years of initial confinement to be followed by ten years of extended supervision. Straszkowski filed a motion for postconviction relief, seeking to withdraw his plea or to modify his sentence. Straszkowski argued that he did not understand that the dismissed charges would be treated as read-ins, which meant that he was admitting the facts of those charges alleged in the complaint. Straszkowski contends his plea questionnaire indicated that the remaining charges were simply to be dismissed, and that if he had known the court could consider allegations from the dismissed charges at sentencing, he would not have entered his plea.

The circuit court denied the motion to withdraw the guilty plea as well as the motion for modification of the sentence. On appeal, the Court of Appeals rejected Straszkowski’s argument that his plea was unknowing and involuntary because he did not understand the effect of the read in procedure. [summarily affirmed September 12, 2006]

A decision by the Supreme Court could determine whether a plea hearing must include an explanation of the impact of a read-in and whether a judge must ensure that the defendant understands the explanation of the read-in procedure. From Clark County.

'Heikkinen v. United Services Automobile Assn.' 2007 WI 124

(2005AP1638)


Time, talent and litigation: In spite of liability, call to stewardship remains, by Karen Mahoney, Milwaukee Catholic Herald, May 8, 2008


Insurance: Bifurcation - Coverage - "Volunteers", Supreme Court Digest by Prof. Daniel D. Blinka and Prof. Thomas J. Hammer, Wisconsin Lawyer, November 2007

'State v. Grady' 2007 WI 125

(2005AP2424-CR) on reconsideration


Criminal Procedure: Sentencing - Truth-in-Sentencing Cases - Consideration of Sentencing Guidelines, Supreme Court Digest by Prof. Daniel D. Blinka and Prof. Thomas J. Hammer, Wisconsin Lawyer, November 2007

Review granted in 'Sustache v. American Family Mutual Insurance Co'

(2006AP939)

This case involves the "four-corners rule," which with few exceptions, confines an insurer's duty to defend to what's spelled out in the policy.

Some background: James Sustache, a teenager, was killed when he was punched by Jeffrey Mathews during an altercation at a party. James' parents and his estate sued Jeffrey and his insurer, American Family.

The amended complaint alleged that Jeffrey had committed intentional battery, and that his actions were wanton and malicious, warranting an award for punitive damages. Jeffrey said he was exercising his right of self-defense when he delivered the fatal blow to James. Citing the four-corners rule, American Family moved for summary judgment, arguing it had no duty to defend Jeffrey because he had acted intentionally.

The circuit court granted American Family's motion, concluding that it was bound by a previous decision — Doyle v. Engelke [(1998)]. Mathews appealed, and the Court of Appeals certified the case. The Supreme Court refused certification on April 17, 2007, but now has agreed to review it [2007 WI APP 144] upon Mathews' appeal.

A decision by the Supreme Court may help sort out a possible conflict in Doyle and other decisions by the Court of Appeals and this Court. Justice Annette Kingsland Ziegler did not participate. From Kenosha County.

Review granted in 'Walgreen Co. v. City of Madison'

(2006AP1859)

The issue presented in this case is whether two Walgreen Co.-owned properties in Madison were properly valued for tax purposes.

The city assessor used an income approach, which considered locked-in rent rates specified in leases. Walgreen argues that the assessments should have been based on a "fee-simple" method, which depends on several factors, including sales of comparable properties but not contract rents.

The difference is significant. For example, the city assessor calculated the 2003 assessed value of one of the properties at $4,618,000; Walgreen's expert calculated the value for the same year at $1,790,000.

The city argues that Walgreen's approach does not reflect the true value of the properties because it ignores the guaranteed rents under the terms of a 20-year contract. There is no "comparable" property because other properties don't have that feature, according to the city.

Walgreen asks the Supreme Court to review a Court of Appeals' published decision [2007 WI APP 153] that affirmed the assessments and the methodology used to make the assessments. From Dane County.

Review granted in 'Acuity v. Bagadia'

(2006AP1153 and 2006AP1974)

In this insurance-coverage dispute, the Supreme Court is asked to define the term "advertising" as used in construing a particular insurance policy, and to determine if trademark infringement is encompassed within the offense of "infringement of copyright, title or slogan."

Some background: In 2004, Symantec, a software company that owns several trademarks, filed a lawsuit against Wauwatosa-based UNIK Associates (Kishan Bagadia) in federal court in Oregon. The federal court found that UNIK had distributed unauthorized software to clients. Symantec obtained a judgment totaling $958,253.40 on copyright and trademark claims against UNIK, which was insured by Acuity.

Acuity sought a declaratory judgment in Waukesha County that it did not have a duty to defend or indemnify its policy holder, UNIK, with respect to any allegations made against them by Symantec.

After the federal court decision, Waukesha County Circuit Court granted summary judgment to Symantec and entered judgment for the full amount of damages, costs and fees approved in the Oregon suit. The Court of Appeals affirmed. [2007 WI APP 133]

At issue is whether UNIK "advertised" when it sent samples of product to potential buyers. The Court of Appeals identified this as a crucial question because, under policy language, there is insurance coverage only for an offense committed "in the course of advertising."

A decision by the Supreme Court could help determine if Wisconsin law will define advertising in a broad or narrow sense as it relates to certain insurance coverage. From Waukesha County.

Review granted in 'Washburn Co. v. Smith'

(2006AP3163)

This case involves the question of due process in a case involving a refusal to submit to a chemical test for the presence of alcohol — whether the state met its burden to show probable cause for an arrest, and whether a deputy misstated the penalties to the suspect under the implied consent law.

Some background: At about 3 a.m. on July 23, Eric D. Smith was arrested for OWI after allegedly speeding and weaving out of his lane of traffic. He was transported to the Washburn County Sheriff's Department at Shell Lake. When a deputy asked Smith if he would submit to a chemical alcohol test, Smith hesitated, expressing concern he would lose his job if convicted of OWI. The deputy informed Smith, who was a resident of Louisiana, of potential penalties under Wisconsin law if Smith was convicted for OWI or refused a breath test. Smith subsequently gave the impression that he agreed to undergo a breathalyzer test, but he failed to follow instructions to provide a proper sample.

At the refusal hearing, Smith argued the deputy did not have probable cause to make the arrest and that the deputy provided erroneous additional information about potential penalties.

The circuit court found probable cause existed, and that Smith's refusal to submit to the breath test was unreasonable. The Court of Appeals affirmed in a one-judge decision by Chief Judge Thomas Cane.

A decision by the Supreme Court could help clarify probable cause determinations in criminal and refusal proceedings involving intoxication and provide a framework on which litigants and lower courts may rely. From Washburn County.

Review granted in 'Town of Rhine v. Bizzell'

(2006AP450)

This certification from District II Court of Appeals raises questions about the constitutionality of a particular zoning ordinance that essentially requires an owner to obtain a conditional-use permit in order to use the property.

The original lawsuit arose from a dispute about the use of an old gravel pit in the town of Rhine in Sheboygan County. The pit was purchased with the intent to use it as a riding area for all-terrain vehicles. Neighbors objected to noise, and litigation over the permissible use of the property ensued.

The Court of Appeals said: This case offers the (Supreme) Court the opportunity to address whether it is reasonable to create a zoning district where the only uses are conditional uses, and if so, what standards or criteria must be included to avoid arbitrary enforcement. Justice Annette Kingsland Ziegler did not participate. From Sheboygan County.

Review granted in 'Rechsteiner v. Hazelden'

(2006AP1521)

This case involves the scope of Wis. Stat. § 146.37(1g), which provides statutory immunity for participants in a peer review of a physician.

Some background: Hans Rechsteiner, a physician working for Spooner Health System, was on call on March 8, 2003 when he went snowmobiling with Nathan Christner. Christner was involved in a serious accident. When sheriff's deputies investigated, they noticed an odor of alcohol from Rechsteiner, who registered a 0.06 percent blood-alcohol content about an hour after the accident.

The sheriff's department sent a copy of the accident report to Spooner, which referred Rechsteiner to Hazelden, a clinic, for a five-day assessment. To aid in Hazelden's assessment, Rechsteiner authorized staff to contact his colleagues and acquaintances. He asserts that certain statements that were made by colleagues and acquaintances were defamatory, lowered his reputation in the community and decreased his business.

Hazelden initially concluded Rechsteiner was alcohol dependent, resulting in a twenty-eight day inpatient course of treatment. However, during a follow-up program, two counselors advised him they did not think he was alcohol dependent but that he abused alcohol.

Rechsteiner filed this lawsuit, contending if he had been properly diagnosed, he would not have had to complete a 30-day inpatient treatment, and would not have lost a month's worth of income.

The circuit court granted the defendants' motion for summary judgment, ruling the defendants were immune from suit under Wis. Stat. § 146.37(1g). The Court of Appeals affirmed. [2007 WI APP 148]

A decision by the Supreme Court could address the scope of Wis. Stat. § 146.37, which restricts liability claims resulting from peer review in the evaluation of health-care providers. From Washburn County.

Review granted in 'State v. Harris'

(2006AP882-CR)

In this case, the Supreme Court has been asked to determine if a mistrial or continuance should have been granted due to, among other things, tardy disclosure by the prosecution regarding possible fingerprint evidence.

Ronell Harris was convicted of possessing cocaine with intent to deliver. His pretrial discovery request sought exculpatory evidence and reports of scientific evidence. On the morning of the trial, the prosecutor indicated no usable fingerprints were lifted from a baggie. The defense counsel took the position that the state's inability to find usable prints as evidence that scientific testing has been attempted but not disclosed.

The circuit court denied a request for a mistrial – a decision upheld by the Court of Appeals [in an unpublished opinion]. The Court of Appeals concluded that the defendant was not prejudiced by the lack of disclosure, and that the verdict would not have changed as a result of disclosure.

Defense counsel argues that late disclosure destroyed his trial strategy, making it exceedingly difficult to render effective assistance.

The Supreme Court could decide if the failure to disclose the fingerprint information alone or in combination with other errors were so prejudicial to deprive the defendant of effective assistance of counsel. From Sheboygan County.

Review granted in 'Larry v. Harris'

(2005AP2935)

This case examines the proper analysis for circuit courts to follow when handling a default judgment when the defendant never appears in the circuit court.

Some background: Taneceia Larry was present at a drug deal that occurred at a gas station in Milwaukee on Aug. 26, 2002. Larry knew, by sight but not by name, a man at the gas station, who asked for a ride home. Larry gave the man a ride to her house. When they arrived in front of Larry's home, an unmarked squad car containing Milwaukee Police officers Derrick Harris and M'Johno Foster pulled up behind Larry's car and the unidentified man fled on foot. Police gave chase but did not apprehend him. Larry consented to a search of her vehicle but not her home. Police said they planned to book Larry and entered the home without a warrant to check on five children who were under a babysitter's care. No charges were ever filed against Larry. She filed a lawsuit naming the two officers and a third, Carlos Rutherford, who arrived apparently as back up and to transport Larry to the police station.

The circuit court initially entered a judgment against Rutherford after he failed to file a timely response. Officer Harris answered the complaint and ultimately obtained summary judgment on the grounds that Larry's complaint did not state a valid claim. In addition to dismissing the action against Harris, the circuit court also vacated the order for default judgment against Rutherford and dismissed the complaint against him, even though he still did not appear in the case and ask to be dismissed. Larry asked the circuit court to reconsider, but the court concluded it could vacate the default judgment under Wis. Stat. § 806.07.

The Court of Appeals affirmed. [2007 WI APP 132] Larry has asked the Supreme Court to review an issue that does not appear to have been addressed in a previous state appellate court decision. The Supreme Court has also asked the parties to address whether the circuit court's default order constituted a final judgment. From Milwaukee County.

A decision by the Supreme Court could help clarify the law statewide on an issue that is likely to recur. From Dane County.

Review granted in 'Town of Madison v. County of Dane'

(2006AP2554)

In this case, Dane County is asking the Supreme Court to review if it is required to pay the Town of Madison half the town's cost in constructing a bridge under Wis. Stat. § 81.38 [(2001-02), succeeded by § 82.08].

On June 10, 2004, the town petitioned the county for aid in constructing a bridge that would cross over a railway corridor and connect two previously unconnected portions of a frontage road. The county denied the town's petition on Sept. 9, 2004, concluding the town's petition did not qualify for aid. The town filed a notice of claim with the county and began construction on the bridge in January 2005. The town filed suit, challenging the county's denial of its petition. The town argued in a motion for summary judgment that it was entitled to aid because the bridge was constructed "on a highway maintainable by the town," as required by Wis. Stat. § 81.38 (1). The circuit court agreed with the town and granted summary judgment. The Court of Appeals affirmed. [2007 WI APP 177]

The County argued the bridge was not constructed "on a highway maintainable by the town," and "because the bridge was not on a section of pre-existing highway."

Review granted in 'State v. LaCount'

(2006AP672-CR)

Louis H. LaCount was sentenced to 11 years in prison on one count of securities fraud related to transactions that occurred between June 1998 and October 1998 when he was employed by a "debt-adjustment firm." The sentence included a penalty enhancer as a repeat offender.

Before LaCount's arrest, police executed a search warrant and seized 500,000 pages of documents. The warrant sought financial records relating to specific clients, however, police discovered evidence that led to other charges. LaCount ultimately faced a 9-count complaint, but the circuit court agreed to separate the charge that led to the securities fraud conviction.

After being sentenced on the securities fraud conviction, LaCount then negotiated a plea agreement with regard to the remaining charges, the Court of Appeals' opinion shows. He entered pleas to four counts, while four other counts were dismissed. On one theft charge, the court imposed a fifteen-year prison sentence, concurrent with the sentence previously imposed on the securities fraud conviction. On the remaining counts, LaCount was placed concurrently on probation for fifteen years, but consecutive to the prison term.

He appealed each conviction, claiming: that the search warrant exceeded its scope; the court erroneously allowed "expert" legal testimony; there was no investment contract; and that the finding of habitual criminality violated his right to a jury trial.

LaCount contends, among other things, that the penalty enhancer was erroneously applied by the circuit court, and that the question should have gone to a jury. The Court of Appeals affirmed the circuit court, concluding LaCount was convicted of securities fraud within five years of having been convicted on another felony charge. [2007 WI APP 116]

A decision by the Supreme Court could clarify some of the issues. From Brown County.

Review granted in 'State v. Walker'

(2006AP562-CR)

In this case, the state has asked Supreme Court to review how previous court decisions may apply to cases involving sentences imposed at re-confinement hearings.

More specifically, does the Supreme Court's decision in State v. Brown [2006 WI 131] create a per se rule that requires circuit courts that did not impose the original bifurcated sentence to consider the original sentencing transcript at a re-confinement hearing? And, would that rule apply retroactively to re-confinement decisions made before the Brown decision was issued?

Some background: In May 2003, Clayborn L. Walker pled guilty to being party to armed robbery with use of force. He was sentenced to two years in prison, followed by four years of extended supervision. He was released on extended supervision in late 2004, but was eventually arrested for violating the rules of his supervision and absconding. He was sentenced to two years in prison. Walker appealed, arguing there was nothing on the record to indicate that the re-confinement court took into account factors weighed at the original sentencing.

A decision by the Supreme Court could clarify case law on sentences imposed at re-confinement hearings. From Milwaukee County.

Review granted in 'Hefty v. Strickhouser'

(2006AP1094 and 2006AP1956)

In this case, which stems from a dispute between a farmer and an animal nutrition consultant, the court is asked to review a judge’s authority to issue a scheduling order that deviates from standard deadlines in Wis. Stat. § 802.08(2).

Jeannie Hefty, doing business as Heft-Kat Farm, hired Daniel R. Strickhouser as a dairy cow nutritionist. For a time, milk production at the farm increased, but Hefty sued Strickhouser and ADM Alliance Nutrition, Inc. after milk production dropped and cattle began exhibiting signs of illness.

The defendants moved for summary judgment, and the circuit court issued a scheduling order with a 20-day deadline for Hefty to respond. Hefty responded five days late, and the court granted summary judgment. Hefty appealed, and the court of appeals reversed, relying heavily on a prior Court of Appeals' decision.

The Court of Appeals [in a summary reversal, May 23, 2007] said it was unconvinced the circuit court judge had sufficient reason to approve a shortening of the time limit in this particular case.

Strickhouser asks the Supreme Court to determine if the Court of Appeals exceeded its authority and to what extent circuit courts have inherent authority to control their dockets. From Walworth County.

Review granted in 'Racine Co. v. Int'l Assoc. of Machinists and Aerospace Workers'

(2006AP964)

This case involves the question of whether Racine County violated the terms of a collective bargaining agreement between it and the International Association of Machinists and Aerospace Workers.

In the fall of 2003, Donald LaFave and Judith Berndt, family court social workers/case managers, were told that they would be laid off if they chose not to exercise bumping rights under a labor agreement. Another social worker/case manager, was informed if she didn't accept a reduction to part-time status that she would be laid off.

The county's family court commissioner and director of family court counseling services, Kevin Van Kampen, advised several workers, including LaFave and Berndt, that the county wanted to continue to provide statutorily required counseling services with them working as independent contractors. LaFave and Berndt entered such contracts. The union filed a grievance, contending the arrangement violated a collective bargaining agreement.

An arbitrator sustained the grievance – a decision reversed by the circuit court, but upheld by the Court of Appeals. [in an unpublished opinion]

The county argues the arbitrator exceeded her powers; the union says the arbitrator's award simply prohibits the county from labeling employees as independent contractors to evade terms of a labor agreement.

A decision by the Supreme Court could clarify the interplay between collective bargaining agreements and statutes, and if this case is distinguishable from previous cases. From Racine County.

Review granted in 'Donohoo v. Action Wisconsin, Inc.'

(2006AP396)

This case involves a defamation lawsuit and the process to be followed when an appellate court reviews a circuit court's findings of frivolousness.

Some background: In February 2004, Grant E. Storms, a pastor in a Louisiana church and an opponent of gay rights, filed a defamation suit against Action Wisconsin, Inc. and Christopher Ott. Storms accused Action Wisconsin and Ott of posting a press release on its Web site that suggested Storms advocated the murder of gay people.

Attorney James Donohoo, on behalf of Storms, sent a letter to Action Wisconsin President Timothy O'Brien, asking for a retraction and to have the press release, issued by Christopher Ott, taken off the Web site. Donohoo filed the defamation suit after getting no response. Attorneys for Action Wisconsin told Donohoo the lawsuit was frivolous, and that Donohoo could face sanctions for filing a frivolous lawsuit. Action Wisconsin argued that because Storms was a public figure, he would have to show proof of malice and that his reputation was damaged.

The circuit court, which dismissed the defamation suit, said Donohoo failed to present sufficient evidence to meet his burden to prove Wisconsin Action's press release was false and malicious. That decision was not appealed, but Storms filed a motion for reconsideration, and Action Wisconsin filed a motion seeking costs and attorney fees.

The circuit court denied the motion for reconsideration, but granted the motion seeking costs and attorney fees, which added up to more than $87,000. The Court of Appeals reversed. [in an unpublished opinion]

A decision by the Supreme Court could clarify Court of Appeals’ standard of review in deciding frivolousness and the appropriate analysis of "actual malice." Justice Annette Kingsland Ziegler did not participate. From Milwaukee County.