Supreme Court accepts nine new cases

Madison, Wisconsin - November 4, 2010

2008AP2206-CR State v. Charles Lamar 
This case asks the Supreme Court to clarify how credit for time served in jail is to be calculated when a defendant is re-sentenced.

Charles Lamar was charged with aggravated battery and two counts of misdemeanor bail jumping, all as a repeat offender. He agreed to plead guilty in exchange for the State dropping one of the bail jumping charges. After conviction, he was given sentences that were to be served concurrently. He then moved to withdraw his plea to the aggravated battery charge, arguing that he hadn’t understood the penalties. The circuit court allowed him to withdraw the plea. It also reinstated the second bail-jumping count. Lamar ultimately pleaded guilty to all three counts – but this time without the repeat-offender penalty enhancement.

Lamar was given a sentence to be served consecutive to the first bail jumping charge, and was given credit for the time he had already served on that charge.  He was not, however, given credit for the time he had concurrently served on the original aggravated battery charge. He wants credit for an additional 189 days, to which the circuit court and the Court of Appeals concluded he is not entitled. The Supreme Court will clarify how sentence credits are to be calculated in this circumstance.  From Milwaukee County.       

2009AP1007 BNP Paribas, as Agent v. Olsen’s Mill, Inc.
This case arises from the sale of Olsen’s Mill, Inc., one of the biggest grain handlers in Wisconsin, which was in bankruptcy last year when a circuit court approved its purchase by a group of Oshkosh investors. The petitioner in this case, BNP Paribas (BNPP), is a bank headquartered in Paris that loaned Olsen’s Mill about $58 million. BNPP won an auction for Olsen’s Mill but the circuit court declined to approve that sale after expressing concerns that BNPP might shut down the mill and liquidate its assets.

BNPP appealed the circuit court’s decision to the Court of Appeals and lost. Now, the Supreme Court has taken the case and is expected to decide, among other issues, whether the circuit court had the authority to act as it did. From Green Lake County.  

2009AP1209-CR State v. St. Martin 
This case began when the live-in girlfriend of defendant Brian St. Martin told police that she suspected St. Martin was dealing drugs. The girlfriend used her key to let officers into the residence. Police removed St. Martin from the apartment and conducted a search in spite of his refusal to give consent. The search turned up cocaine and drug paraphernalia.

St. Martin ultimately pleaded guilty to one count of possession of cocaine with intent to deliver. He was sentenced to two years’ incarceration and appealed.

The Court of Appeals certified this case to the Supreme Court, which is expected to decide several issues raised in this case, including whether this warrantless search based on the consent of one roommate was legal.  From Racine County.

2009AP1249-CR State v. Gonzalez 
In this case, Esteban M. Gonzalez was charged with causing a child to view pornographic material and exposing a child to harmful material. The charges arose from an incident in which Gonzalez allegedly watched a pornographic video and masturbated while his 3½-year-old daughter was present.

Gonzalez argued that he had not realized the child was in the room. A jury convicted him of exposing the child to harmful material, but acquitted him of the second charge.

Gonzalez appealed, arguing that the trial court had made several errors that denied him due process. Among these alleged errors:  not answering questions posed by the jury (and not alerting counsel to those questions), declining to give the jury instruction that the defendant requested, and permitting the State to play a pornographic tape with the jury present. The Court of Appeals affirmed Gonzalez’ conviction. The Supreme Court will now review it. From Milwaukee County.  

2009AP1422 Jessica Siebert et al v. Wisconsin American Mutual Insurance Company 
This case began when Jessica Koehler lent her father’s car to Jesse Raddatz. Raddatz said he was running an errand, but instead picked up Jessica Siebert and headed for a party. On the way, Raddatz got into an accident that injured Siebert.

The company that insured the car declined to cover Siebert’s claims. Siebert sued and lost after a jury concluded that Raddatz was not a covered driver because he had exceeded the scope of the permission granted by Koehler.

Siebert appealed, and won. The Court of Appeals said Koehler was negligent by entrusting the car to Raddatz when she knew or should have known that this was an unreasonable risk. Koehler’s negligence, the Court of Appeals concluded, triggered insurance coverage. Now, the insurer has come to the Supreme Court raising a number of issues. Among them: whether negligent entrustment triggers coverage even where a jury has already decided there is no coverage for negligent operation of the vehicle. From Oneida County.

2009AP1558 Steffens v. BlueCross BlueShield of Illinois, et al 
This case began in June 2005 with an automobile accident. John R. Steffens claimed that he had been injured, and his employer-based BlueCross BlueShield plan paid some of his medical bills.

Steffens also sued the driver and the driver’s insurer, AIG National, for compensation. After he received that compensation, Steffens allegedly changed his story, prompting questions about whether his back problems might be traced to a long-term, degenerative disease rather than the car accident. BlueCross requested reimbursement.

The circuit court applied the doctrine of judicial estoppel, which prevents a party from taking contradictory positions during a court proceeding. The court said Steffens had “played it for all it was worth in the settlement of this case” and ordered him to reimburse BlueCross. The Court of Appeals reversed this ruling, finding that the circuit court had incorrectly applied judicial estoppel because Steffens had never taken the position in court that the problems that necessitated the back surgery were related to the accident.

Now, BlueCross has come to the Supreme Court, which is expected to clarify whether the insurer is entitled to reimbursement and whether the trial court correctly applied judicial estoppel.From Outagamie County.

2009AP2315 Joyce Affeldt, et al v. Green Lake County 
This case began with a highway reconstruction project in Green Lake County. The petitioners, the Affeldts, own two farms along Highway B, which was slated to be widened. The Affeldts sued the county to stop the project, arguing that the highway is not a “recorded” highway under the law, and therefore the county does not have the authority to widen it in this manner. The circuit court granted summary judgment in favor of the county, dismissing the Affeldts’ claim. The Court of Appeals affirmed this ruling. Now, the Affeldts are asking the Supreme Court to, among other things, clarify the law that governs “recorded” versus “unrecorded” highways in Wisconsin.From Green Lake County.

2009AP2433-FT Topolski v. Topolski
This case involves a couple who divorced in 1995. They agreed that Ellen Topolski would receive a portion of Patrick Topolski’s retirement benefits when Patrick began receiving those benefits. Then, in 1998 and 2000, Patrick suffered a series of strokes and was unable to work. He began collecting monthly benefits. Ellen took Patrick to court, arguing that she was entitled to a portion of the benefits. The circuit court agreed and ordered Patrick to pay more than $83,000 to Ellen.

The Court of Appeals saw it differently, concluding that this was not a retirement benefit but instead a disability benefit – and therefore was not subject to the property division agreement.

Now Ellen has come to the Supreme Court, which is expected to clarify whether a former spouse is entitled to receive a portion of a benefit payment regardless of the reason why the benefit is accessed. From Waukesha County.

2009AP2845-W Madison Metropolitan School Dist. v. Circuit Court for Dane Co.
This case began when the Madison Metropolitan School District (MMSD) expelled a 15-year-old freshman at East High School. The boy had been caught at school with baggies of marijuana, and officials concluded he was intending to sell the drug. This incident followed several years of truancy and other problems.

The expulsion order denied the student any educational services from the school district for the first semester of a three-semester period. The order also set conditions under which the boy could return to school after one semester.

The case landed in circuit court because of the drug-related charges. The court found the boy to be delinquent, and then turned to the question of schooling. Ultimately, the court concluded that MMSD had a duty to provide educational programming for the boy. The court ordered MMSD to provide these services at a safe and appropriate location of the district’s choice.

MMSD asked the Court of Appeals to issue a supervisory writ challenging the circuit court’s authority to order the district to provide educational services to an expelled student. The Court of Appeals agreed that the circuit court had overstepped its authority.

Now the case has come to the Supreme Court, which is expected to clarify what obligation, if any, a school district has to craft an educational plan for a student who is adjudged delinquent and expelled. From Dane County.

Review denied: The Supreme Court denied review in the following cases. As the state’s law-developing court, the Supreme Court exercises its discretion to select for review only those cases that fit certain statutory criteria (see Wis. Stat. § 809.62). Except where indicated, these cases came to the Court via petition for review by the party who lost in the lower court:

2009AP1278-CR State v. Watters- Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley dissent.
2010AP2088- W Bowers v. Cir. Ct. Dane Co.
2010AP2350-OA  James v. Circ. Ct. Brown Co.


2008AP1635-CR State v. Grant
2008AP1723-26 State v. Gaustad
2008AP2682-84 Heimermann v. Thurmer
2009AP701 Hawk’s Landing v. Cox
2009AP1534 City of Madison v. Harris
2010AP2279-OA Krahn v. WI Waterways Comm’n

Eau Claire
2009AP1490-CR State v. Mills - Justice Ann Walsh Bradley did not participate.
2010AP2286-W Molinaro v. Pugh

Fond du Lac
2009AP1105-CR State v. Seaton

2009AP234 State v. Grosskopf

2009AP1940-CR State v. Tetting

2009AP422-CR State v. Rizzo - Chief Justice Shirley S. Abrahamson dissents.

2009AP719 Benjamin v. West Bend Mut. Ins. - Justice David T. Prosser Jr. dissents.

2007AP115/402 State v. Murrell
2008AP1274-CR State v. Ford
2008AP1632-CRNM State v. Gatlin
2008AP2659 Ardell v. Thomas
2008AP2660 Thomas v. Ardell
2008AP2755 Wyndham Properties v. Kingstad Law Offices
2009AP58-CRNM State v. Holmes
2009AP112-CRNM State v. Gonzalez
2009AP152/53-CRNM State v. Aguilera-Rodriguez
2009AP483 Kender v. Auto Owners
2009AP706-CRNM State v. Arrington
2009AP1135-CR State v. Bowens
2009AP1137 Pitts v. State
2009AP1193-CR State v. Trotter
2009AP1480 Taylor v. State
2009AP1666-CR State v. Sparks
2009AP1851-CR State v. Rogers
2009AP1953 Dixon v. Hnilicka Co.- Justice Patience Drake Roggensack dissents.
2009AP1968-CR State v. Gladney
2009AP2087-CR State v. Lang
2009AP2120-CR State v. Brock
2009AP2143 State v. Coleman
2009AP2305-CR State v. Mack
2009AP2455-CR State v. Oswald
2009AP2831-CR State v. Harrell
2009AP2906  State v. Jesenia R.
2010AP74 State v. Walker
2010AP75-CR State v. Wendt - Justice Patience Drake Roggensack did not participate.
2010AP1038-CRNM  State v. Readon-Abubakar

2009AP2076-CR State v. Carlisle 

2009AP2339 Lea v. Growmark, Inc. - Justice Patience Drake Roggensack dissents.

2009AP2324/35 State v. Turner

St. Croix
2009AP50-C  State v. Dougan

2009AP1671 Knox Ent. v. Jetzer

2009AP1307 Ryan v. Est. of Sheppard
2009AP2008 State v. Dahl - Justice Annette Kingsland Ziegler did not participate.

2009AP2504 Byrd v. Landowski
2010AP1564-W Sowle v. Cir. Ct. for Waukesha Co.

2009AP1826-CR State v. Hodge

Amanda K. Todd
Court Information Officer

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