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Supreme Court accepts four new cases

Madison, Wisconsin - April 18, 2008

The Wisconsin Supreme Court has voted to accept four 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.

2006AP1506 Blunt v. Medtronic
This case examines whether state law negligence and product liability claims are pre-empted by federal law where a defective product received FDA pre-market approval, but the manufacturer was not required to sell the defective device because it had also obtained FDA pre-market approval for an alternative, non-defective design.

Some background: Joseph Blunt had a defibrillator manufactured by Medtronic implanted in May of 2004. In early 2005, Medtronic advised physicians of a possible battery shorting problem in the defibrillator. As a precautionary measure, Joseph and his physician decided to remove the device and replace it with an improved Medtronic version. At the time Blunt received his defibrillator, both the original and the model with the better battery were available for implantation, and the FDA had placed no restrictions on selling devices with the original design.

After the surgery, Blunt sued Medtronic, alleging negligence, strict product liability, and a loss of consortium and companionship.

The circuit court sided with Medtronic, which argued that because the defibrillator had been approved by the FDA’s extensive pre-market approval process, the claim was pre-empted by U.S.C. § 360k(a) (2000). The Court of Appeals affirmed.

This petition was held in abeyance pending the U.S. Supreme Court’s decision in Riegel v. Medtronic, Inc., which was issued on Feb. 20, 2008. The U.S. Supreme Court held that the pre-emption clause of the Medical Device Amendments Act barred common law claims challenging the safety or effectiveness of a medical device marketed in a form that received pre-market approval. From Milwaukee County.

2007AP1114/15 – CR State v. Johnson
These consolidated criminal cases examine sentencing credits as applied to concurrent sentences. The Supreme Court has been asked to review how a statute and case law apply when a circuit court imposes two concurrent sentences at the same time. More specifically in this case, the Court could decide if the circuit court must apply the same credit toward both sentences in order to ensure that credit on one sentence is not negated by the lack of credit on the concurrent sentence.

Some background: In 2004, Johnson entered guilty plea on a drug offense and was released on bail pending sentencing. In 2005, while awaiting sentencing, he was arrested on a new drug offense. After the second arrest, he remained held on his 2004 case, spending 50 days in custody before being released on bail in his 2005 case. Johnson later pled guilty in his 2005 case.

At a joint sentencing hearing on both cases, Johnson received 50 days credit against one of his two concurrent sentences – the 2005 case. He claims that he is entitled to sentence credit against both sencences to ensure that credit awarded on one sentence is not negated by the lack of credit on the concurrent sentence.

The Court of Appeals rejected this argument, holding that a defendant is entitled to credit on concurrent sentences imposed at the same time only when the custody was “in connection with” both offenses.” From Milwaukee County.

2006AP2695 County of Dane v. LIRC and Gloria N. Graham
This disability claim case examines whether a state agency is entitled to judicial deference when the agency reverses its long-standing interpretation of a statute and implements a new one, even though the statute did not change.

Further, Dane County asks the Supreme Court to consider if the Labor and Industry Review Commission abandoned a reasonable interpretation of “disfigurement” as the term has been used in Wis. Stat. § 102.56 and adopted an unreasonable interpretation.

Some background: Gloria N. Graham slipped and fell while working in food service for Dane County. Graham was awarded 25-percent permanent partial disability. The dispute here is whether Graham's limp that resulted from the fall should qualify for an additional award for disfigurement under the Workers Compensation Act, Wis. Stat. § 102.56 (1), even though there is no amputation, scarring or burns.

The Court of Appeals rejected the county’s claim that its interpretation of disfigurement being limited to amputations, scarring or burns was more reasonable. The Court of Appeals also determined that the LIRC’s current interpretation was a reasonable one, and that LIRC’s prior interpretation in another case had not been more reasonable. The county argues that review is necessary because the LIRC’s about-face on this issue will have a profound effect on the number of disfigurement awards that will be given to claimants and could potentially be extended for the first time to other alterations in the body's movements. From Dane County.

2007AP191 Apple Valley Gardens v. MacHutta
The petitioner in this case asks the Supreme Court to review whether a restriction on the use of a condominium unit, such as a prohibition on renting the unit to others, must be stated in the condominium declaration, or whether such a restriction may be contained in the owners' association's bylaws. Condominium declarations are usually drafted by a condominium developer and filed with the register of deeds; bylaws are adopted and amended from time to time by the unit owners.

Some background: Steven MacHutta developed the Apple Valley Gardens condominium complex in the late 1970s, but apparently had trouble selling some of the units. A declaration of condominium contained, as required by statute, a declaration of purpose and of restrictions on use. The declaration provided, in part, that any rental or lease agreement shall not relieve an owner from his or her obligation to pay common expenses.

The MacHuttas assert that this part of the declaration gives them the affirmative right to rent any of the units they own. Eventually, Steven MacHutta ended up owning 15 units, most of which they leased to tenants. The association (Apple Valley Gardens) contends the sentence grants no such right but merely states, in a negative manner, that if a lease is allowed, an owner is not relieved from all owner obligations.

Steven MacHutta and the association reached an agreement and most of MacHutta's units were sold. Under the agreement, MacHutta ultimately retained one of the units and sold one to his wife, Gloria. She rented it out, leading to another dispute.

In 2002, the association enacted an amendment to a bylaw that required owner occupancy, thereby prohibiting rentals. The bylaw required that when the tenant moved out, the unit had to become owner occupied, like the other units.

When Gloria rented to another tenant despite the association's objection, the association filed a declaratory judgment, requesting enforcement of the owner-occupancy bylaw. The MacHuttas filed counterclaims for breach of contract.

The circuit court granted summary judgment in favor of the association. The Court of Appeals affirmed, concluding that although the Apple Valley declaration did not prohibit units from being rented, it also did not forbid the association from subsequently enacting bylaws to require owner occupancy. From Waukesha 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.


  • 2007AP1093 Kiraly v. Hajdasz


  • 2007AP1740-CR State v. Diaz
    Justice Louis B. Butler, Jr. dissents.


  • 2006AP1104-CR State v. Marten-Hoye
  • 2006AP1678-CR State v. Rodefeld
  • 2006AP3013 Preston v. Meriter Hosp.
  • 2006AP3130 State v. Barnett
  • 2007AP580 Cullen-Smith v. Merrill Iron
  • 2007AP933 State v. Edmunds
    Justice Annette Kingsland Ziegler dissents.
    Justice Patience Drake Roggensack did not participate.
  • 2007AP1429 State v. Gaustad
  • 2007AP1806 Dane Co. DHS v. Cheryl E. Door
  • 2007AP1053-CR State v. Murillo

Eau Claire

  • 2007AP1248 State v. Beauchamp

Fond du Lac

  • 2006AP2435-CR State v. Champlain
    Justice Patience Drake Roggensack dissents.
  • 2007AP850 State v. Meilahn
    Chief Justice Shirley S. Abrahamson dissents.


  • 2006AP353 Ten Mile Investments v. Sherman


  • 2006AP2085-CR State v. Riddle


  • 2005AP25-CRNM State v. Gomaz
  • 2005AP2832-CR State v. McGuire
    Justice Patience Drake Roggensack dissents.

La Crosse

  • 2007AP1152-CR State v. Hill


  • 2007AP380/ State v. Cobbs
  • 2007AP440-CR 2007AP423 Evenson v. AFSCME
    Justice Ann Walsh Bradley did not participate.


  • 2003AP2030-CR/ State v. Smith
  • 2004AP3314-CR State v. Wurm
  • 2006AP2111 Wright v. Wright
    Chief Justice Shirley S. Abrahamson dissents.
  • 2006AP3134-CR State v. Godina
  • 2007AP10-CR State v. Toliver
  • 2007AP104-CR State v. Vongphakdy
    Justice Ann Walsh Bradley dissents.
  • 2007AP343 State v. Turner
  • 2007AP577-CR State v. Grandy
  • 2007AP813 Kriska v. WERC
  • 2007AP919-CR State v. Rhodes
  • 2007AP1204-CRNM State v. Sanders
  • 2007AP2253-W Griffin v. Circ. Ct. for Milw. Co.


  • 2007AP81-CR State v. Jackson


  • 2006AP1380 Johnson v. Burmaster


  • 2007AP647 State v. Dahl


  • 2007AP110 Young-Cooper v. Smith
  • 2007AP114 State v. Aguilar Rock
  • 2006AP2582 State v. Phiffer Sawyer
  • 2007AP1670 Nault v. West Bend Mut. Chief
    Justice Shirley S. Abrahamson concurs.


  • 2007AP2356-W Baker v. Circ. Ct. for Vernon Co.


  • 2006AP606-W Janssen v. Wallace
  • 2006AP2661-CR State v. Scherer


  • 2007AP1399-FT Town of Waukesha v. Hiekkanen

Tom Sheehan
Court Information Officer
(608) 261-6640

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