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2008

Supreme Court accepts six new cases

Madison, Wisconsin - June 18, 2008

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, issues, and counties of origin are listed below. Court of Appeals opinions/certification memos available online for the newly accepted cases are hyperlinked.

2007AP672-CR State v. Grady
Marchand Grady has asked the Supreme Court to review a Court of Appeals’ decision affirming his conviction on charges of first-degree homicide while armed with a dangerous weapon as party to a crime, possession of a short-barreled shotgun and possession of a firearm by a felon.

Some background: Grady was found guilty by a jury and sentenced to life in prison with the potential for release in 52 years. He raises two issues involving his Miranda rights and police interviews conducted on May 16 and 17, 2005.

Grady agreed to be questioned by police and was given his Miranda warnings before he was formally arrested. Police did not repeat the Miranda warnings after the arrest, which occurred after the second interview.

Grady argues that because he was not again given his Miranda warnings, a statement he made was involuntary and should have been suppressed.

The Court of Appeals affirmed the circuit court’s conclusion that Grady “knew exactly what he was doing and was not the subject of improper police coercion when he provided the information to police.”

Grady asks the Supreme Court to review two issues:

Did the trial court err by denying Grady's motion to suppress his first statement where his Miranda rights were not given to him after he was placed under arrest?

Did the trial court err by not suppressing Grady's second statement as being a product of the invalid first statement as a continuing violation of Grady's constitutional rights? From Milwaukee County.

2007AP1834-CR State v. Kramer
Defendant Todd Lee Kramer has asked the Supreme Court to review a Court of Appeals’ decision affirming his conviction for operating a motor vehicle while under the influence of an intoxicant.

Some background: Kramer was arrested for OWI after an officer observed his pick-up truck pulled over to the side of a highway with its hazard lights flashing. A police officer observed the vehicle and pulled behind the vehicle to see if there was a need for help.

The officer asked if he could help and then noticed the defendant’s speech was slurred and the odor of intoxicants coming from inside the truck. A subsequent investigation led to the defendant’s arrest for OWI.

The circuit court concluded that a seizure had occurred but that the seizure was legal because the officer was acting in a “community caretaker” function by stopping to inquire about the situation. The Court of Appeals said if the seizure in this case was justified, it was because the officer was acting in his community caretaker capacity. If the officer was not acting in a community caretaker capacity at the time of the seizure, the seizure was unlawful and the evidence of the defendant’s intoxication must be suppressed.

The defendant argued the officer was not engaged in a bona fide community caretaker activity because he was not in distress or signaling for help.

The state contended that even if Kramer had been “seized,” the seizure was made during the officer’s valid performance of the community caretaker function.

Kramer has asked the Supreme Court to review the following issues:

Was the stop of Todd Kramer's vehicle a seizure within the meaning of the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Wisconsin Constitution?

Was the stop of Todd Kramer's vehicle justified by the community caretaker exception to the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Wisconsin Constitution? From Columbia County.

2006AP1573/2290 Henry J. Krier v. Donald N. Vilione and Virchow Krause
This accounting liability case involves the plaintiffs’ claims that Donald Vilione, a partner in Virchow Krause, knowingly falsified accounting records for certain environment disposal companies in order to cover up and conceal his brother’s misappropriation of funds and expenditures.

Some background from the Court of Appeals’ decision: Henry J. Krier and Michael Vilione were long-time co-owners of three separate but interrelated companies involved in waste disposal – EOG Environmental, Inc., EOG Disposal and Vil-Kri. A dispute arose, and Krier filed suit over Michael Vilione’s alleged use of corporate assets for personal purposes.

The parties reached a mediated settlement, which laid out the ownership structure of companies and expressly exempted from the releases any claims of Krier, EOG Disposal and Vil-Kri against the accountant, who happened to be Michael Vilione’s brother, Donald Vilione and the accounting firm where he was employed, Virchow Krause.

 The parties agreed Krier would become the sole owner of EOG Disposal and Vil-Kri, and Michael Vilione would become the sole owner of IOG Environmental.

Following settlement of the suit against Michael Vilione, Krier, EOG Disposal and Vil-Kri filed suit against Donald Vlione and Virchow Krause.

As a result of the alleged accounting malpractice, Krier, EOG Disposal and Vil-Kri claim to have lost significant income and profits and incurred unnecessary debt, attorney’s fees and expenses. Virchow Krause moved for summary judgment, arguing that the plaintiff’s claims were based almost entirely on Michael Vilione’s alleged thefts of EOG Environmental assets. Virchow Krause argued that only EOG Environmental or its current stockholders had standing to assert claims for damages to EOG Environmental.

The issue presently before the Supreme Court involves the trial court’s decision to grant summary judgment in favor of the defendants. The court of appeals reversed, ruling that there were genuine issues of material fact as to damages incurred by the plaintiffs-appellants.

The defendants have asked the Supreme Court to review the following issue:

Are the defendants entitled to summary judgment on claims based entirely on alleged injuries to a separate non-party corporation in which some of the plaintiffs have any ownership interest? From Milwaukee County.

2007AP105-CR State v. Warbelton
Jeffrey Warbelton seeks review of a decision affirming his conviction for stalking “with previous conviction for a violent crime.”

Warbelton raises one issue: whether the jury should hear evidence that he had a "previous conviction for a violent crime" and be instructed to make a finding on that matter during his trial for stalking while having "a previous conviction for a violent crime" under Wis. Stat. § 940.32(2) and (2m)(a).

Warbelton claims the jury should not hear evidence of a prior conviction because it is merely a penalty enhancer.

The Court of Appeals rejected this argument, holding that a previous conviction is a substantive element of the offense.

The Supreme Court has been asked whether the circuit court erred when it handled proof of the “previous conviction for a violent crime” requirement found in Wis. Stat. § 940.32 (2) and (2m) (a) (2001-02). From Winnebago County.

2007AP934 Froedtert Memorial v. National States
This case involves the interpretation of a Medicare supplement policy and sections of the Wisconsin Administrative Code.

Some background: Following a kidney transplant at Froedtert Memorial Lutheran Hospital in May 2000, Kathleen Ledger was discharged to another hospital on Sept. 15, 2000. She was readmitted to Froedtert Sept. 25-27, discharged and then readmitted to Froedtert on Oct. 26, where she received treatment until her death on Feb. 12, 2001.

Before Oct. 26, 2000, Ledger’s Medicare Part A coverage was exhausted, including her maximum lifetime benefits. However, on Oct. 26, she was covered by the terms of National’s Medicare medical supplement policy issued in 1998, also known as “Medigap.”

National States Insurance Co. seeks review of a decision affirming a summary judgment awarded to Froedtert and The Loren Ledger Trust. The decision held that National State’s Medicare supplement policy required it to pay the actual hospital charges Froedtert billed Ledger after her Medicare Part A benefits had been exhausted, and to pay 12 percent interest on the unpaid amount pursuant to Wis. Stat. § 628.46 (1) (1999-2000).

Froedtert claimed the policy requires payment of all charges, billed at its standard rates after Ledger was readmitted Oct. 26. National States asserted the policy requires payment of only what Medicare would have paid for these services if Medicare benefits had not been exhausted.

National States asks the Court to review the following issues:

May a hospital that has previously accepted Medicare benefits on behalf of a patient as payment in full for in-patient services collect its much higher "standard charges" after the expiration of the Medicare benefits period?

Did the Wisconsin Administrative Code require all Medigap policies sold in this state to provide coverage for a hospital’s increased charges after the expiration of the Medicare Benefits period?

Did National States’ Medigap policy limit the amount of coverage to the amount covered by Medicare?

Was the issue whether National States was required to pay the higher "standard" charges fairly debatable, precluding enhanced interest under Wis. Stat. § 628.46? From Milwaukee County.

2007AP1139-CR State v. Romero
This case examines questions about the standards used to evaluate hearsay statements contained in a search warrant affidavit.

Some background: A search warrant affidavit signed by a Milwaukee Police officer was offered in support of a search for cocaine at the Milwaukee residence of Jaime Romero. The affidavit, in part, relied on information relayed by an “unwitting co-conspirator” to a confidential informant.

Romero was charged with possession with intent to deliver cocaine. His motion to suppress the evidence for lack of probable cause to issue the search warrant was denied. Romero pled guilty and was sentenced to four years initial confinement and four years extended supervision. He appealed.

The Court of Appeals reversed, concluding the affidavit was insufficient to provide probable cause for the search. Court of Appeals Judge Ralph Adam Fine dissented, concluding that the majority reached the wrong result by imposing an absolute chain of custody requirement. Judge Fine said if an absolute chain of custody is not needed to convict somebody, where the requisite proof is beyond a reasonable doubt, it is certainly unnecessary to establish probable cause to issue a search warrant.

The state asks the Supreme Court to review two issues:

Whether an affidavit in support of a search warrant states probable cause even if based in part upon an unwitting co-conspirator's statements to the reliable confidential informant?

Whether the good faith exception to the exclusionary rule applies where a neutral and detached magistrate issued a search warrant and the police executed a search in reliance upon it? 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.

Barron

  • 2006AP1110 Noesen v. State
    Justice Patience Drake Roggensack dissents.
  • 2007AP1602-CR State v. Funk

Brown

  • 2007AP1261-CRNM State v. Lebron
  • 2007AP2400 Brown Co. DHS v. Ivan L.C.
    Justice Ann Walsh Bradley dissents.
  • 2008AP304 Bolssen v. Amer. Gen.
  • 2008AP1000-W Akbar v. Raemisch
    Justice N. Patrick Crooks did not participate.

Dane

  • 2006AP618-CR State v. Evans
  • 2006AP2742-CR State v. Ware
  • 2006AP2834 Heimermann v. Kingston
  • 2007AP1214 Cost Cutters v. KLMP
  • 2007AP2947-W Greene v. Pollard Door
  • 2007AP1294 Sam F & B v. Molepske

Dunn

  • 2007AP1478-CR State v. Russell

Eau Claire

  • 2008AP416-LV Frank v. The Payday Loan Store
    Justice Patience Drake Roggensack and Justice Annette Kingsland Ziegler dissent.
  • 2008AP628-W Marquardt v. Rybroek

Florence

  • 2007AP1389-CR State v. Thomson

Fond du Lac

  • 2007AP777-CR State v. Curran

Forest

  • 2007AP1242-CRNM State v. Dodge

Jackson

  • 2007AP2011 Jackson Co. DHHS v. Jennifer R.M.
    Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley dissent.

Jefferson

  • 2006AP2860-CR State v. Diehl

Kenosha

  • 2006AP2769-CR State v. Milkie
  • 2006AP3002-CR State v. Franklin
  • 2007AP16-CR State v. Wohlfeil
  • 2008AP639-W Harden v. Grams Lincoln
  • 2007AP636-CR State v. Torkelson

Marathon

  • 2007AP2255-56-CR State v. Jacobs
    Justice Ann Walsh Bradley did not participate.
    Chief Justice Shirley S. Abrahamson and Justice Louis B. Butler, Jr. dissent.

Marinette

  • 2006AP3125 Adamski v. Knaus

Milwaukee

  • 2006AP632-CRNM State v. Tanner
  • 2006AP940-W Johnson v. Jenkins
  • 2006AP1389-CR State v. McDaniel
  • 2006AP2473 State v. Odell
  • 2006AP2502-CR State v. Nawrocki
    Justice David T. Prosser and Justice Patience Drake Roggensack dissent.
  • 2006AP2890 State v. Johnson
  • 2006AP3068 State v. Branch
  • 2006AP3069-CR State v. Rogers
  • 2007AP48-CR State v. Hamilton
  • 2007AP157-CRNM State v. Torres
  • 2007AP158-CRNM State v. Grafton
  • 2007AP170-CR State v. Tikkuri
  • 2007AP337-CR State v. Fuerst
  • 2007AP357 Raasch v. City of Milwaukee
  • 2007AP443-CR State v. Russ
  • 2007AP479-W Davis v. Pollard
  • 2007AP741-CR State v. Scott
  • 2007AP1086 State v. Alston
  • 2007AP1138-CR State v. Bump
  • 2007AP1181 State v. Robin M.W.
  • 2007AP2399 Kolenda V. Electromania
  • 2008AP145-W Ray v. Lundquist
  • 2008AP453-W Hard v. Circ. Ct. Milw. Co.
  • 2008AP637-W Washington v. Cir. Ct. for Milw. Co.

Oneida

  • 2007AP1932 Oneida Co. DSS v. Kevin B.

Outagamie

  • 2007AP899/2008-CR State v. Sherman

Racine

  • 2004AP2289-CR State v. Johnson
  • 2006AP2725-CR
    2007AP552-CR State v. McPherson

Rock

  • 2007AP1418 Donaldson v. Town of Spring Valley
  • 2007AP2162-CR State v. Martin

Shawano

  • 2007AP1018-CR State v. Behnke

Walworth

  • 2007AP1143-CR State v. Ellefsen

Washburn

  • 2007AP1411-CR State v. Cameron

Washington

  • 2006AP3025-CR State v. Van Buren
    Justice Annette Kingsland Ziegler did not participate.
  • 2007AP95 Gilbert v. Geiger
    Justice Annette Kingsland Ziegler did not participate.
  • 2007AP169-CR State v. Babiak
    Justice Annette Kingsland Ziegler did not participate.
  • 2007AP449 State v. Moseby
    Justice Annette Kingsland Ziegler did not participate.
  •  2008AP943-W Lobley v. State
    Justice Annette Kingsland Ziegler did not participate.

Waukesha

  • 2007AP1826-CR State v. Carrothers
  • 2007AP2340-FT Stevenson v. Baron

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