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2007

Supreme Court accepts five new cases

Madison, Wisconsin - June 25, 2007

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

2006AP102-CR State v. Sumner
Under the totality of circumstances, did a police officer have reasonable suspicion to perform a protective frisk of a stopped motorist?

Nathaniel L. Sumner, whose license was suspended, was pulled over in Milwaukee on July 29, 2004 for driving in the wrong lane of traffic. His driving forced oncoming traffic to pull over as he passed a squad car traveling in the same direction.

As police waited for a tow truck to remove Sumner’s vehicle, an officer said he became concerned for his safety as Sumner kept putting his hands in and out of his pockets. The officer, who had asked Sumner to stop putting his hands in his pockets, frisked Sumner and recovered several packets of heroin.

The circuit court denied a motion to suppress the evidence, and Sumner was convicted in a decision that was overturned by the District I Court of Appeals. The state has asked the Supreme Court to review, contending a previous Supreme Court decision, State v. Johnson, 2007 WI 32, does not apply to this case.
From Milwaukee County

2005AP1026 Barbara Sands v. The Whitnall School District
Do the closed-session provisions of Wis. Stat § 19.85 (1) (c) implicitly create a privilege preventing discovery during civil litigation? What is the standard of review for circuit court findings regarding the relevance of information sought in discovery?

This is an appeal from a non-final order issued in a discovery dispute stemming from an employee termination. The question before the court is whether Barbara Sands, a civil litigant, is entitled to obtain, through discovery, the substance of closed meetings regarding her employment with the Whitnall School District.

The circuit court issued an order requiring the district to provide answers to Sands’ discovery interrogatories. The Court of Appeals issued a published decision, reversing the order and ruling the substance of what takes place in a closed meeting is privileged from disclosure and non-discoverable.

The state Department of Justice, the Wisconsin Freedom of Information Council, Wisconsin Broadcasters Association and Wisconsin Newspaper Association support the petition for review. From Milwaukee County

2005AP3190 AccuWeb v. Foley & Lardner
This case arises from a legal malpractice action brought against counsel for permitting a patent to lapse. It examines whether the facts of the case should have precluded summary judgment against AccuWeb, which claimed damages after a patent renewal fee for a device that helps controls printing press quality wasn’t paid on time.

AccuWeb and its president, Raymond Buisker, contend the loss of patent rights diminished the value of the company and was a key reason the prospective sale of the company fell through.

The trial court granted partial summary judgment, dismissed the claims by Buisker on the ground that that he lacked standing to sue. The circuit court concluded Buisker failed to show with a reasonable degree of certainty that counsel’s alleged negligence resulted in damages.

The trial court denied a motion for reconsideration and entered a final judgment dismissing the case. AccuWeb appealed, and a divided District IV Court of Appeals affirmed, leading to this petition for review. The Supreme Court is expected to decide if disputed material facts should have precluded summary judgment. From Dane County

2006AP1847 State v. Jorgensen
Is it grounds for a new trial when a judge and prosecutor were witness to events leading to the criminal charges for which the defendant is on trial, and the jury is informed of those facts?

Donald W. Jorgensen came to court on Nov. 10, 2004 for a plea hearing or trial regarding a traffic matter. The prosecutor, Shawano County Assistant District Attorney Catherine White, said she believed Jorgensen had been drinking in violation of conditions of bail.

At White’s request, Judge James Habeck, Shawano County, ordered Jorgensen to undergo a preliminary breath test, which registered a blood-alcohol concentration of 0.12 percent. As a result, White asked the court to revoke Jorgensen’s bail and have him transported to a local hospital for a blood draw, which registered a blood-alcohol content of 0.174.

Although Judge Habeck had been the one to order the blood draw, he presided over Jorgensen’s jury trial on the charges arising from the alcohol testing. Attorney White served as the prosecutor.  The jury ultimately found Jorgensen guilty of bail jumping, operating while intoxicated (fifth offense) and operating after revocation.

Jorgensen filed a post-conviction motion for a new trial, arguing he had been denied a fair trial because Atty. White had acted as both a witness and a prosecutor and because the transcript of the Nov. 10, 2004 traffic hearing, which indicated that Judge Habeck had ordered the preliminary breath test and the blood draw, was read to the jury.

The circuit court denied Jorgensen’s motion, and the District III Court of Appeals affirmed in a 2-1 decision. Jorgensen seeks review and a new trial. From Shawano County

2006AP976 Muller v. Society Insurance
Does the made whole doctrine apply when an injured party is not made whole by a settlement even though the insurance policy limits are not exhausted? Can a subrogated insurer negotiate a tentative settlement with the guilty party in the civil lawsuit before the insured is made whole?

Bruce and Karen Muller sued their electrical contractor and its insurer, United Fire & Casualty after a fire caused by faulty wiring destroyed their sporting goods store in Milltown, Wis. The Mullers named their insurer, Society Insurance, as a party defendant. Society had already paid the couple benefits totaling $407,378, and the contractor and its insurer agreed to settlements reached through mediation. But the Muller’s still ended up with a net loss of $59,725.60.

The circuit court entered judgment in favor of the Mullers and against Society for that amount, and both parties appealed. The Court of Appeals reversed, in favor of Society, leading to this petition for review by the Supreme Court. From Polk 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.

Petition for Supervisory Writ

Kenosha

  • 2007AP1211-W Stokes v. Circuit Court of Kenosha County

Milwaukee

  • 2007AP1030-W State ex rel. Glenn v. Frank

Petitions for review

Brown

  • 2005AP3126 State v. George
  • 2006AP1053-CR State v. Casteel
  • 2006AP1054-CR
    Justice N. Patrick Crooks did not participate
  • 2006AP1679-CR State v. Mayan
  • 2006AP1866 Interest of Geneva C. and Ciara C.:
  • 2006AP1867 Brown Co. DHS v. Jayson C.

Chippewa

  • 2006AP80 Grorud v. Fencl

Dane

  • 2006AP2094 Obriecht v. Bartow
  • 2006AP3200-CRLV State v. Freer
  • 2007AP680-W Freer v. COA

Dodge

  • 2006AP725-CR Thru 2006AP728-CR State v. Petroselli

Fond du Lac

  • 2005AP3062-CRNM State v. Rice

Grant

  • 2006AP1047-CR State v. Tiggs

Kenosha

  • 2006AP1147-CR State v. Rupert
  • 2006AP1320-CR State v. Pleasant

Marathon

  • 2006AP1999 Marriage of: O’Grady

Milwaukee

  • 2004AP1555 Commitment of Stokes: State v. Stokes
    Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley dissent.
  • 2005AP521-CR State v. Goodman
  • 2005AP699-CRNM State v. Woods
  • 2005AP827-CR State v. Staten
  • 2005AP1324-CR State v. Edwards
  • 2005AP1880-CR State v. Zelaya
  • 2005AP2611 State v. Griffin
  • 2006AP55 State v. Hendricks
    Justice Louis B. Butler, Jr. did not participate.
  • 2006AP731 State v. Simmons
  • 2006AP736-CR State v. Johnson
  • 2006AP906-CR State v. Rozanske
  • 2006AP908 State v. Staples
  • 2006AP967 State v. Ramirez
    Chief Justice Shirley S. Abrahamson dissents.
  • 2006AP995 State v. Myartt
  • 2006AP1000-CR State v. Canady
  • 2006AP1399-CR State v. Terry
  • 2006AP1660 Dettwiler v. DOR
  • 2006AP1769-CR State v. Robinson
  • 2006AP2319-W State ex. rel. Hipp v. Wallace
  • 2006AP1039 Milwaukee City Post v. Maharishi Vedic Univ.

Oneida

  • 2005AP2259 State v. Roberts

Outagamie

  • 2006AP340 Kottke v. Commercial Truck

Racine

  • 2006AP371-CR State v. Turner
  • 2006AP2855-CRNM State v. Luckett

Richland

  • 2007AP161-CRLV State v. Ewing

Rock

  • 2006AP1926 Jackson v. LIRC
  • 2006AP2525 TPR to Crystal A.L.:
  • 2006AP2526 Rock Co. DHS v. Bonnie B.

Sawyer

  • 2006AP493 Palmer v. Mason

Sheboygan

  • 2006AP269 State v. Torres

Walworth

  • 2006AP40 Hall v. Liebovich
    Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley dissent.

Washington

  • 2006AP419-CR State v. Cox
  • 2006AP914 Held v. Ackerville Snow Club

Waupaca

  • 2006AP1207-CR State v. Roloff

For more information contact:
Tom Sheehan
Court Information Officer
(608) 261-6640

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