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2009

Supreme Court accepts six new cases

Madison, Wisconsin - March 2, 2009

The Wisconsin Supreme Court has voted to accept six new cases. The Court also acted to deny review in a number of cases. The case numbers, some of the legal questions involved, and counties of origin are listed below. Court of Appeals’ opinions/certification memos available online for the newly accepted cases are hyperlinked.

2008AP697-CR State v. Henley
The District IV Court of Appeals has certified several issues arising from allegations of sexual assault at a UW-Whitewater dorm:

  • Whether the circuit court is permitted to grant a new trial in the interest of justice under Wis. Stat. § 805.15(1) without time limit?
  • If it is not, whether the circuit court has inherent authority to grant this relief?
  • If it does not, whether the court of appeals may use its power of discretionary reversal under Wis. Stat. § 752.35 to reach back to the original judgment of conviction and grant the same relief?
  • If it does not, whether the court of appeals has inherent authority to grant such relief?
  • If it does not, whether the supreme court should exercise its inherent authority to grant relief in this case?

From Jefferson County.

2007AP1378-CR State v. Carroll
This case examines whether or not Jermichael James Carroll was under arrest or detained incident to an investigative stop when a police officer obtained photographic evidence from his cell phone. The Court has been asked to review the following issues: 

  • Was the trial court’s finding that Mr. Carroll was not under arrest at the time that a detective searched his cell phone incorrect as a matter of law where there is no evidence that Mr. Carroll was told that he was under arrest and where the only undisputed basis for arrest was two non-criminal traffic violations (speeding and driving with a suspended license) and where Mr. Carroll had been handcuffed and placed in a squad car?
  • Where it would not be illegal to place a citizen under arrest for non-criminal traffic violations, may a police officer conduct a warrantless search of the memory of the citizen’s cell phone or other personal information device as part of a search incident to arrest?
  • If the warrantless search of the photo menu of the cell phone was invalid, was the subsequent search of the cell phone under warrant nevertheless lawful?

From Milwaukee County.

2007AP477 Ehlinger v. Hauser
This petition and cross-petition for review ask the Supreme Court to review several issues stemming from a business dispute.

The Petition for review asks:

  • Whether Restatement (Second) of Contracts § 204 permits the trial court to supply a term to resolve an ambiguity that has no terms omitted and is not indefinite?
  • Whether generally acceptable accounting principles (GAAP) require supporting documentation to determine book value? 
  • Whether the trial court may seek a professional opinion without following statutory due process requirements for either referees or court appointed experts?

The petition for cross-review asks:

  • Whether this suit is characterized as simply an action between shareholders or, as the circuit court determined, Hauser was sued in his capacity as an officer or director, entitled to indemnification under Wis. Stat. § 180.0851?

From Jefferson County. Justice N. Patrick Crooks did not participate.

2008AP52 State v. Arends
This case involves a procedural question under Ch. 980, the statutes addressing commitment of a sexually violent person. The Supreme Court has been asked to review:

  • Whether the court of appeals correctly interpreted legislative intent in adopting new language in § 980.09, “when it held that the standard for granting a discharge trial had not changed despite the legislature's selection of language new and different from the language of repealed Wis. Stat. § 980.09(2)(2003-04)?”
  • Whether § 980.09 allows a circuit court to deny a petition for discharge without a hearing if, after weighing all the information presented, it concludes that the petition has not alleged sufficient facts to support the conclusion that the petition showed a change in his condition or his dangerousness?

From Washington County. Justice Annette K. Ziegler did not participate.

2007AP1898-CR State v. Fischer
In this OWI (operating while intoxicated) case, the Supreme Court has been asked to review the Court of Appeals’ decision affirming the circuit court’s order excluding opinion testimony by a defense expert who relied, in part, on the results of a preliminary breath test. More specifically, Richard M. Fischer has asked:

  • Were Fischer's constitutional rights to present a defense, a fair trial, and due process violated when exculpatory expert opinions were excluded pursuant to Wis. Stat. § 343.303?
  • Under Wisconsin law, is the trial court empowered to keep out expert opinion evidence for "invalidity," when the evidence is relevant and the expert properly qualified?

From Ozaukee County.

2008AP880-CR State v. Artic
This case involves the search of a Milwaukee home without a warrant. Robert Lee Artic Sr. asks the Supreme Court to review:

  • Whether the Court of Appeals erred by deciding the police officers' warrantless invasion of Artic's curtilage, the creation of claimed exigent circumstances, and their forced entry where sufficiently attenuated from any illegality to render Artic's consent to search valid?
  • Whether this court should adopt a per se rule barring the fruits of any search or seizure where police have manufactured exigent circumstances.

From Milwaukee County.

Review denied: The Supreme Court denied review in the following cases. Supreme Court review is a matter of judicial discretion, not of right, and will be granted only when special and important reasons are presented. As the state’s law-developing court, the Supreme Court exercises its discretion to consider for review only those cases that fit certain criteria, but these criteria neither control nor fully measure the Court’s discretion (see Wis. Stat. (rule) § 809.62). Except where indicated, these cases came to the court via petition for review by the party who lost in the lower court.

Brown
2008AP113 Etter v. State Farm
2008AP686 State v. George Clark
2007AP2680 Lemmer v. Schunk

Columbia
2007AP2555-CR State v. Andreyev

Dane
2005AP2629/2008AP225 State v. Gant
2007AP1414 Andrews Rev. Trust v. Vrakas/Blum
2007AP2496 Kypke v. Previant - Justice N. Patrick Crooks did not participate.
2008AP327-CRNM State v. Freeman
2006AP1903-CRNM State v. Howard
2007AP1427-CR State v. Napier
2007AP314 Oltman v. Town of Primrose - Justice Annette Kingsland Ziegler dissents.
2008AP3070-OA Walker v. Watters - Justice Annette Kingsland Ziegler did not participate.

Eau Claire
2008AP1077-CR State v. Staffa
2007AP723/24 State v. Procknow

Kenosha
2007AP2913-CR State v. Thompson

La Crosse
2008AP142-W Stahl v. DOC

Marathon
2008AP1107 City of Wausau v. Jusufi
2008AP1221 Trailwood Ventures v. Village of Kronenwetter

Milwaukee
2007AP2449 State v. T.J. McQuay - Justice David T. Prosser dissents.
2008XX1450-CR State v. Hall
2007AP1208 State v. Mobley
2007AP1383-CR State v. Brown
2007AP1771 Thomas v. Milwaukee City Board
2007AP2586-CR State v. Anderson
2008AP33-CR State v. Moss
2008AP3105/06-W Bowers v. Circ. Ct. for Milw. Co.
2007AP801-CR State v. Wells
2007AP1769 State v. Collins
2007AP1914 State v. Welch
2008AP778-CR State v. Harris
2008AP2346-W Moore v. Cir. Ct. for Milw. Co.
2007AP214 State v. Jines
2007AP1293-CR State v. Martin

Outagamie
2008AP451-CR State v. Wolf
2008AP997-FT Rohde v. Acuity

Portage
2008AP439 Lamar Central Outdoor v. DOT

Racine
2007AP851-CR State v. Davy - Justice Ann Walsh Bradley dissents.

Rock
2008AP3195-W Knight v. Pollard

Rusk
2008AP563-CR State v. Parrish

Walworth
2008AP1424-NM Walworth Co. DH&HS v. Kimberly F. Washington
2007AP2539 Willowglen Acad. V. Frank Landscaping - Justice Patience Drake Roggensack dissents.

Waukesha
2007AP1889 Zillmer v. American Fam. Mut. Ins.
2008AP3197-W Stuart v. Hasslinger
2007AP864 County Concrete v. LIRC - Justice Patience Drake Roggensack dissents.

Winnebago
2007AP2468-CR State v. Blake
2007AP2874 City of Menasha v. Liebhauser

Contact:
Tom Sheehan
Court Information Officer
(608) 261-6640

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