On Point

Robert Zellner v. Herrick, et al., 2009 WI 80, on certification

Issue/Holding:

¶3        …  In this court’s standard order accepting the certification, we stated that “the appeal is accepted for consideration of all issues raised before the court of appeals.” See State v. Stoehr, 134 Wis. 2d 66, 70, 396 N.W.2d 177 (1986) (“When this court grants direct review upon certification,

State v. Alberto Fernandez, 2009 WI 29, on certification
For Fernandez: Eileen A. Hirsch, Shelley M. Fite, SPD, Madison Appellate

Issue/Holding:

¶59      Fernandez additionally argues that the lack of advance written notice of the Dalka and CNR claims violated his due process rights. In response, the State contends that Fernandez’s due process rights were protected by the statute, which provides for “an opportunity to be heard,

State v. Alberto Fernandez, 2009 WI 29, on certification
For Fernandez: Eileen A. Hirsch, Shelley M. Fite, SPD, Madison Appellate

Issue/Holding:

¶61      Fernandez says the court erred by ordering full restitution to two insurance companies because a court is authorized to do so only where justice requires. Fernandez says that justice does not require a man who washes dishes for a living to reimburse insurance companies worth billions of dollars.

 State v. Michael Scott Long, 2009 WI 36, affirming in part and reversing in part unpublished opinion
For Long: Joseph L. Sommers

Issue/Holding:

¶43 Long did not advance this statutory interpretation argument at the circuit court or at the court of appeals. Normally, under such circumstances, we would conclude that an issue neither raised nor briefed is waived. Long’s sole recourse would be to file a motion for post-conviction relief,

State v. Alberto Fernandez, 2009 WI 29, on certification
For Fernandez: Eileen A. Hirsch, Shelley M. Fite, SPD, Madison Appellate

Issue: Whether the holding of State v. Mark M. Loutsch, 2003 WI App 16, ¶25, “that the court order at sentencing an amount of restitution that it determines the defendant will be able to pay before the completion of the sentence,” is valid.

State v. Christopher Baron, 2009 WI 58, affirming 2008 WI App 90
For Baron: Daniel P. Dunn

Issue/Holding: The identity theft charge against Baron, sending emails from Fischer’s account without authorization and with intent to harm his reputation as a government official, survives strict scrutiny analysis under the First Amendment (freedom of speech clause):

¶45      To survive strict scrutiny, the State has the burden to show that the “‘regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.’” 

State v. Christopher Baron, 2009 WI 58, affirming 2008 WI App 90
For Baron: Daniel P. Dunn

Issue/Holding: The charge of identity theft, based on Baron’s alleged conduct in sending emails from Fischer’s account without authorization and with intent to harm his reputation, is “content based” within the meaning of First Amendment analysis:

¶38      In the case at hand, we conclude that Wis.

Custodian of Records for Legislative Technology Services Bureau v. State, 2004 WI 65, on reconsideration 2004 WI 149

Issue/Holding:

¶34. When we review a John Doe subpoena, a foundational issue may be constitutional in nature. For example, does the issuance of a subpoena in a John Doe proceeding, the sole purpose of such proceeding being to investigate alleged criminal activity, have the potential to affect Fourth Amendment rights?

State v. Michael Scott Long, 2009 WI 36, affirming in part and reversing in part unpublished opinionF
For Long: Joseph L. Sommers

Issue: Whether “restrained or confined” element of false imprisonment was established where the defendant hugged the complainant tightly while committing an act of sexual contact.

Holding:

¶28      This court has previously explained that confinement is the “restraint by one person of the physical liberty of another.”

State v. Kelly R. Ferguson, 2009 WI 50, reversing unpublished opinion

Issue/Holding: Support for warrantless entry of a residence to effectuate an arrest may be found where the offense is jailable, even if a misdemeanor; State v. Mikkelson, 2002 WI App 152 overruled:

¶27      Our review of the reasoning of Mikkelson, as compared with that of Welsh and Santana,