Please ensure Javascript is enabled for purposes of website accessibility

Case Digests — March 24-28, 2014

By: WISCONSIN LAW JOURNAL STAFF//March 28, 2014//

Case Digests — March 24-28, 2014

By: WISCONSIN LAW JOURNAL STAFF//March 28, 2014//

Listen to this article

Wisconsin Law Journal

Case Digests

March 24-28

Wisconsin Supreme Court

Civil

Professional Responsibility — revocation

Where attorney Jeffrey L. Elverman stole a large sum of money from an elderly client, revocation of his law license is not retroactive.

“We agree with the referee’s recommendation that the revocation of Attorney Elverman’s license not be made retroactive. Although Attorney Elverman’s actual theft of D.P.’s money may have ended in 2004, it appears that he continued to take actions to the detriment of her estate past the time that his license to practice law was suspended in 2008. In addition, both Attorney Elverman and the OLR disregard the fact that in July of 2011 Attorney Elverman was convicted of disorderly conduct as the result of a domestic violence incident that occurred in May 2011. Attorney Elverman’s failure to timely report that conviction to this court, and his failure to cooperate with the OLR’s investigation into that incident, is yet another indication of Attorney Elverman’s true character. This fact situation is readily distinguishable from the one presented in Cooper. The misconduct at issue in this case is extremely serious. Attorney Elverman took advantage of an elderly woman who was suffering from Alzheimer’s disease and stole a large amount of money from her. Accordingly, we decline the parties’ request to make revocation of his license retroactive.”

2011AP1400-D OLR v. Elverman

Per Curiam.

Attorneys: For Appellant: Elverman, Jeffrey L., Brookfield; For Respondent: Weigel, William J., Madison; MacArthur, Anne, Lake Mills

Wisconsin Supreme Court

Civil

Professional Responsibility — revocation

Where attorney Randy J. Wynn stole more than three-quarters of a million dollars from clients, revocation is appropriate.

“We agree that revocation is warranted and necessary. This has never been in dispute. Attorney Wynn admitted he used his law practice to misappropriate over three-quarters of a million dollars from numerous persons and entities. Attorney Wynn acknowledged that he cannot successfully defend against misconduct allegations and further acknowledges that he will owe restitution to the clients he has harmed. He notes that he is represented by counsel regarding his criminal liability and has opted to proceed pro se in this disciplinary matter. We grant the petition and we revoke Attorney Wynn’s license to practice law in Wisconsin.”

2013AP1362-D OLR v. Randy J. Wynn

Per Curiam.

Attorneys: For Complainant: Weigel, William J., Madison; For Respondent: Wynn, Randy J., West Allis

Wisconsin Supreme Court

Civil

Professional Responsibility — revocation

Where attorney Charles J. Labanowsky was convicted of five alcohol-related offenses, and had trust fund discrepancies, revocation is appropriate.

“Having reviewed Attorney Labanowsky’s petition, the OLR’s summary of the matters it is investigating, and the OLR’s recommendation, we accept Attorney Labanowsky’s petition for the revocation of his license to practice law in Wisconsin. See SCRs 22.19(1), (2), and (5). The seriousness of Attorney Labanowsky’s misconduct demonstrates the need to revoke his law license to protect the public, the courts, and the legal system from the repetition of misconduct; to impress upon Attorney Labanowsky the seriousness of his misconduct; and to deter other attorneys from engaging in similar misconduct. See In re Disciplinary Proceedings Against Arthur, 2005 WI 40, ¶78, 279 Wis.2d 583, 694 N.W.2d 910. We accept the OLR’s decision not to seek a restitution order.”

2013AP2836-D OLR v. Labanowsky

Per Curiam.

Attorneys: For Complainant: Weigel, William J., Madison; For Respondent: Labanowsky, Charles J., III, pro se

Wisconsin Supreme Court

Criminal

Evidence — sexual assault — psychological records

Where no three justices agree on any issue, the court of appeals opinion remains the law of the case.

“Specifically, no three justices reach agreement to either affirm, reverse, or modify the decision of the court of appeals consistent with precedent. Consequently, the court of appeals decision remains the law of the case. See Phillips v. U.S. Bank Nat’l Ass’n, 2010 WI 131, ¶¶1-2, 329 Wis.2d 639, 791 N.W.2d 190; Hornback v. Archdiocese of Milwaukee, 2008 WI 98, ¶63, 313 Wis.2d 294, 752 N.W.2d 862; see also 6A Jay E. Grenig, Wisconsin Practice Series: Appeal and Review §55:18 (5th ed.). In light of the motion for reconsideration and the fact that our previous per curiam left the parties and the circuit court without sufficient guidance or ability to proceed consistent with precedent, the court is now compelled to clarify that per curiam.”

Reconsideration granted.

2011AP2864-CRAC State v. Johnson

Per Curiam.

Attorneys: For Appellant: Moeller, Marguerite M., Madison; For Respondent: Repischak, Robert S., Racine; For Respondent: Meyer, Stephen J., Madison; Richards, Mark D., Racine; Hart, Michael F., Milwaukee; Powell, Craig S., Milwaukee; Misfeldt, Geoffrey R., Milwaukee

Wisconsin Court of Appeals

Civil

Municipalities — incorporation

The Town of Waukesha appeals an order denying its motion to dismiss a petition for the incorporation of a village comprised of portions of two towns and an order dismissing the Town from this case. The Town argues: (1) the circuit court erred in dismissing the Town from this case; (2) the incorporation petition fails to meet the minimum signature requirement under Wis. Stat. § 66.0203(2)(a) (2011-12)[1] because fifty signatures were not collected at least ten days and not more than 20 days after publication of the notice of intent to circulate the petition, pursuant to Wis. Stat. § 66.0203(1); (3) the petition fails to set forth facts substantially establishing the required standards for incorporation as required by § 66.0203(2)(c); and (4) the four-square-mile minimum area requirement under Wis. Stat. § 66.0205(5) is not satisfied.

We conclude that whether the circuit court erred in dismissing the Town is moot. A holding in favor of the Town on this issue would have no practical effect on this case because the Town does not prevail on any of its arguments that the circuit court erred in denying the Town’s motion to dismiss the petition. The Town has forfeited judicial review of whether the petition meets the minimum signature requirement and whether the petition sets forth facts substantially establishing the requirements for incorporation because the Town failed to first raise these arguments in the circuit court. On the only remaining topic of whether the minimum area requirement has been met, the Town contends that where an incorporation involves parts of territory from two towns, each town must consent to the incorporation. The Town maintains that it did not give consent to incorporation of a portion of its territory, and therefore, because the minimum area requirement cannot be met without the portion of its territory designated in the petition for incorporation, the circuit court erred in concluding that the incorporation petition in this case met this requirement.

We reject this argument. Because incorporation proceedings are governed by statute and because no statute requires consent from each town before portions of unincorporated territory from two different towns may be incorporated, we conclude that the circuit court did not err in determining that the minimum area requirement was met and in denying the Town’s motion to dismiss the petition. Accordingly, we affirm. Not recommended for publication in the official reports.

2012AP919 In re the Petition to Incorporate as a Metropolitan Village, Unincorporated Lands Located in the Town Of Brookfield and Town of Waukesha Waukesha County Wisconsin: Walt v. City of Brookfield, et al.

Dist II, Waukesha County, Hassin, J., Higginbotham, J.

Attorneys: For Appellant: Laing, Dean P., Milwaukee; de la Mora, Hector, Elm Grove; Aquavia, Julie A., Waukesha; For Respondent: Hammes, James W., Waukesha

Wisconsin Court of Appeals

Civil

Family — marital property — maintenance

Nancy Baxter appeals the circuit court judgment of divorce from Bryan Baxter. Nancy challenges the divorce judgment in three main respects. First, Nancy argues that the court erred by classifying a rental property that Bryan purchased prior to the marriage as Bryan’s non-divisible asset, and by excluding the property from the divisible assets. Second, Nancy contends that the maintenance awarded to her was inadequate in duration and amount and, specifically, that the court erred by double counting her pension as an asset awarded to her in the property division and also as part of her income stream when awarding maintenance. Third, Nancy asserts that the court failed to correct a “transcription error” in a document that was incorporated into the divorce judgment, which resulted in an incorrect valuation of the debt on the marital home and incorrect equalization payment.

We conclude: (1) the rental property was a divisible asset that should have been included in the property division; (2) the circuit court improperly double counted Nancy’s pension; and (3) the debt on the marital home was incorrectly valued. We also clarify certain legal and factual errors to be addressed before the circuit court with respect to three additional issues that Nancy raises regarding maintenance. We therefore reverse and remand for further proceedings consistent with this opinion. Not recommended for publication in the official reports.

2013AP1168 In re the marriage of: Baxter v. Baxter

Dist IV, Dane County, Remington, J., Kloppenburg, J.

Attorneys: For Appellant: Lehker, Kristen E., Madison; For Respondent: Bushaw, Brian, Madison

Wisconsin Court of Appeals

Civil

Torts — legal malpractice

Kevin and Penny Klein appeal the circuit court’s judgment dismissing their legal malpractice action against their former bankruptcy counsel, Attorney Christopher Duren, his law firm, and the firm’s malpractice insurer. The Kleins’ arguments relate to the enforceability of a reaffirmation agreement between the Kleins and one of their creditors, Associated Bank. A reaffirmation agreement is a contract between a debtor and a creditor that allows a debt that is otherwise dischargeable in a Chapter 7 bankruptcy to survive the bankruptcy. In re Golladay, 391 B.R. 417, 421 (Bankr. C.D. Ill. 2008).

Attorney Duren represented the Kleins in their Chapter 7 bankruptcy and allegedly advised the Kleins that they needed to sign a reaffirmation agreement with Associated Bank in order to keep their house. After the Kleins received their discharge in bankruptcy, Associated Bank sued to recover a debt that, the bank asserted, survived the bankruptcy because of the reaffirmation agreement. The basis of the malpractice suit here is the proposition that entering into the reaffirmation agreement ran contrary to the Kleins’ interests.

Attorney Duren’s primary defense to the Kleins’ suit is his assertion that the agreement is unenforceable.

The circuit court concluded that the reaffirmation agreement is unenforceable as a matter of law. The court further concluded that, if the Kleins’ claims were tried, the jury would be instructed that the agreement is unenforceable.

Faced with the court’s conclusions that the agreement is unenforceable and that a jury would be told the agreement is unenforceable, the Kleins stipulated that they could not show that Duren’s alleged negligence caused them compensable damages. The Kleins now challenge the circuit court’s conclusions, making two main arguments that we quote verbatim:

(1) “The reaffirmation agreement met all the requirements for enforcement, making it an error to hold it invalid as a matter of law.” (2) “The Kleins could prove damages to a jury, regardless of the enforceability of the reaffirmation agreement, if a jury is not told that it was unenforceable.” We reject the Kleins’ arguments, and affirm. Not recommended for publication in the official reports.

2013AP1216 Klein v. Duren Law Offices et al.

Dist IV, Dane County, Niess, J., Lundsten, J.

Attorneys: For Appellant: Pagel, Briane F., Jr., Madison; For Respondent: Covelli, Claude J., Madison

Wisconsin Court of Appeals

Civil

Property — conditional use permits

Oneida Seven Generations Corporation and Green Bay Renewable Energy, LLC (“Seven Generations”) appeal an order affirming on certiorari review the City of Green Bay’s decision to revoke a conditional use permit (“CUP”). We conclude the City acted arbitrarily and without substantial evidence of misrepresentation when it revoked the CUP. Accordingly, we reverse. This opinion will not be published.

2013AP591 Oneida Seven Generations Corporation and Green Bay Renewable Energy LLC v. City of Green Bay

Dist III, Brown County, Hammer, J., Per Curiam

Attorneys: For Appellant: Wilson, Eric J., Madison; Kemp, Matthew T., Milwaukee; For Respondent: Farris, S. Todd, Milwaukee; Warpinski, Ted A., Milwaukee; Peltz, Joseph M., Milwaukee

Wisconsin Court of Appeals

Civil

Administrative Law — wind energy — housing impact

This case involves a challenge to Wis. Admin. Code ch. PSC 128, Wind Energy Systems (hereinafter, PSC 128). The Wisconsin Realtors Association, Wisconsin Builders Association, Wisconsin Towns Association, John E. Morehouse, Sr., and Ervin E. Selk (collectively, WRA) argue PSC 128 is invalid because it was promulgated without a housing impact report, in violation of Wis. Stat. § 227.115(2) (2009-10). The circuit court concluded § 227.115(2) did not require a housing impact report, and it therefore granted the Public Service Commission of Wisconsin (the Commission) summary judgment. We agree and affirm. Not recommended for publication in the official reports.

2013AP1407 Wisconsin Realtors Association et al. v. Public Service Commission of Wisconsin

Dist III, Brown County, Atkinson, J., Stark, J.

Attorneys: For Appellant: Kassner, John A., III, Madison; For Respondent: Chasco, Justin W., Madison

Wisconsin Court of Appeals

Civil

Property — foreclosure

Barbara and John Garden (collectively “the Gardens”) appeal a summary judgment dismissing their counterclaims in a foreclosure action. We affirm. This opinion will not be published.

2013AP1015 PNC Bank v. Garden

Dist III, St. Croix County, Vlack, J., Per Curiam

Attorneys: For Appellant: Phebus, Douglas J., Middleton; For Respondent: Chang, Jong-Ju, Bloomingfield, Mich.; Ellis, Robert Hugh, Detroit

Wisconsin Court of Appeals

Civil

Juveniles — TPR — failure to assume parental responsibility

Mary E. B. appeals from an order dismissing her petition to terminate Cecil M.’s parental rights to their child, Kayden T. B. Mary argues that the trial court made an error of law when it determined that she had not proved that Cecil had failed to assume parental responsibility for Kayden and, alternatively, that the evidence did not support the court’s decision. We reject Mary’s arguments and affirm as the trial court was not clearly wrong. This opinion will not be published.

2014AP160 In re the termination of parental rights to Kayden T.B.

Dist II, Kenosha County, Kerkman, J., Reilly, J.

Attorneys: For Appellant: Neary, Elizabeth A., Waukesha; Schroeder, Victoria, Delafield; For Respondent: Sfasciotti, Robert F., Kenosha

Wisconsin Court of Appeals

Criminal

Criminal Procedure — ex post facto clause

Retroactive application of sec. 304.06, eliminating early release violates the Ex Post Facto Clause.

“The statutory changes at issue in this case are markedly different from those in Morales. Application of several of the 2011 act provisions to Singh’s offenses has the effect of lengthening his time confined in prison beyond what he well may have experienced under the law as it stood when he committed or was convicted and sentenced on the offenses. The changes do not merely adjust the date at which Singh might first become eligible for early release, they altogether eliminate the early release opportunities the law previously afforded him. While the 2011 act preserves early release eligibility for prisoners who earned PAT between October 1, 2009, and August 3, 2011, the act prevents Singh from earning PAT after August 3, 2011, even though the law in effect when he committed or was convicted and sentenced on his crimes had no such limitation. With the enactment of the 2011 act, there simply is no opportunity for early release based upon WIS. STAT. §§ 302.113(9h) and 304.06(1)(bg)3. (2009-10), or to earn early release based upon PAT while in a prison after August 3, 2011, under §§ 302.113(2)(b) or 304.06(1)(bg)1. Further, as a Class H offender, Singh is in the second-lowest felony class, see WIS. STAT. § 939.50, and thus there is no reason here, as there was in Morales, to conclude Singh would not have been able to secure early release had the early release provisions not been eliminated by the 2011 act. In his petition, Singh asserts that he has ‘met the criteria for earning PAT.’ We can find nothing in the record or briefing where Kemper calls this into question, other than Kemper’s general assertion that Singh is not eligible for PAT due to enactment of 2011 Wis. Act 38.”

When Singh committed or was convicted and sentenced on his offenses, the 2009 act and its multiple early release opportunities were the law. Completely eliminating Singh’s eligibility for any of these opportunities ensured Singh would serve the full amount of confinement time to which he was sentenced, resulting in a significant risk that he would serve more time in prison than under 2009 Wis. Act 28. The ex post facto clauses prohibit this.”

Affirmed in part, and Reversed in part.

Recommended for publication in the official reports.

2013AP1724 State ex rel. Singh v. Kemper

Dist. II, Racine County, Ptacek, J., Gundrum, J.

Attorneys: For Appellant: Singh, Aman, pro se; For Respondent: Larson, Sara Lynn, Madison

Wisconsin Court of Appeals

Criminal

Motor Vehicles – OWI — sufficiency of the complaint

The State appeals from the dismissal of its case against Jeffrey D. Marker for operating a motor vehicle while under the influence of a controlled substance, second offense, contrary to Wis. Stat. § 346.63(1)(a). The circuit court dismissed the case without prejudice because it found that there was no evidence of intoxication in the complaint. Reversed. This opinion will not be published.

2013AP2725-CR State v. Marker

Dist II, Winnebago County, Woldt, J., Neubauer, P.J.

Attorneys: For Appellant: Weber, Gregory M., Madison; Gossett, Christian A., Oshkosh; For Respondent: Dirden, Angela Dawn, Green Bay

Wisconsin Court of Appeals

Criminal

Criminal Procedure — ineffective assistance

Myron A. Jones appeals a judgment convicting him of two counts of burglary and an order denying his motion for postconviction relief. Jones contends that his trial and sentencing counsels were ineffective and that his punishment is unduly harsh, given those of his codefendants. We affirm. This opinion will not be published.

2013AP1530-CR State v. Jones

Dist II, Racine County, Gasiorkiewicz, J., Per Curiam

Attorneys: For Appellant: Pray, John A., Madison; For Respondent: Chiapete, W. Richard, Racine; Winter, Tiffany M., Madison

Wisconsin Court of Appeals

Criminal

Criminal Procedure — ineffective assistance

Antonio Ramirez appeals pro se from a circuit court order denying his Wis. Stat. § 974.06 (2011-12) motion alleging ineffective assistance of postconviction counsel. We conclude that the circuit court properly denied the motion without an evidentiary hearing because there was no legal basis for the ineffective assistance claim. We affirm. This opinion will not be published.

2013AP563 State v. Ramirez

Dist II, Kenosha County, Warren, J., Per Curiam

Attorneys: For Appellant: Ramirez, Antonio G., Jr., pro se; For Respondent: Zapf, Robert D., Kenosha; Wittwer, Jacob J., Madison

Wisconsin Court of Appeals

Criminal

Motor Vehicles – OWI — reasonable suspicion

Jesse Van Camp appeals a judgment of conviction for operating while intoxicated, fourth offense. Van Camp argues the circuit court erred by denying his suppression motion because the officer lacked reasonable suspicion to stop his vehicle. We disagree and affirm. This opinion will not be published.

2013AP2059-CR State v. Van Camp

Dist III, Outagamie County, Gill, J., Mangerson, J.

Attorneys: For Appellant: Rashid, David C., Menasha; For Respondent: Weber, Gregory M., Madison; Schneider, Carrie A., Appleton; Glad, Darrin, Appleton

Wisconsin Court of Appeals

Criminal

Criminal Procedure — IAD

Calvin Shriver, pro se, appeals a judgment convicting him of first-degree sexual assault of a child. Shriver argues the circuit court erred by denying his motion to dismiss the charge based on alleged violations of the Interstate Agreement on Detainers. We conclude the court properly denied Shriver’s motion to dismiss, and affirm. This opinion will not be published.

2013AP1821-CR State v. Shriver

Dist III, Outagamie County, Metropulos, J., Per Curiam

Attorneys: For Appellant: Shriver, Calvin C., pro se; For Respondent: Schneider, Carrie A., Appleton; O’Neil, Aaron R., Madison

Wisconsin Court of Appeals

Criminal

Criminal Procedure — ineffective assistance

Allen Tony Davis, pro se, appeals from an order denying the motion for postconviction relief that he filed pursuant to Wis. Stat. § 974.06 (2011–12). We affirm the order. This opinion will not be published.

2013AP708 State v. Davis

Dist I, Milwaukee County, Wagner, J., Per Curiam

Attorneys: For Appellant: Davis, Allen Tony, pro se; For Respondent: Loebel, Karen A., Milwaukee; O’Neil, Aaron R., Madison

Wisconsin Court of Appeals

Criminal

Search and Seizure — reasonable expectation of privacy — guests

Adrian J. Jackson appeals a judgment convicting him after a guilty plea of possession of cocaine with intent to deliver as a party to a crime, second or subsequent offense. Jackson argues: (1) that the circuit court erred in ruling that he did not have standing to bring a suppression motion; and (2) that the circuit court should have ordered the State to disclose how the police tracked him to the apartment where he was arrested. We conclude that Jackson had standing to bring his suppression motion and that the police must disclose how they tracked Jackson to the apartment if the information is relevant to whether Jackson’s rights under the Fourth Amendment were violated. We reverse the judgment of conviction and remand for further proceedings. This opinion will not be published.

2013AP592-CR State v. Jackson

Dist I, Milwaukee County, Fiorenza, J., Per Curiam

Attorneys: For Appellant: Jensen, Jeffrey W., Milwaukee; For Respondent: Balistreri, Thomas J., Madison; Loebel, Karen A., Milwaukee

Wisconsin Court of Appeals

Criminal

Criminal Procedure — ineffective assistance

In these consolidated appeals, Patrick Erickson challenges judgments convicting him of armed robbery and receiving stolen property, and orders denying his motions for postconviction relief. Erickson makes two arguments on appeal: (1) his attorneys were ineffective for failing to request substitution or recusal when Judge Duket disclosed the mother of one of the robbery victims was the county clerk, whom Judge Duket knew; and (2) he is entitled to withdraw his plea because he was confused about whether the BB gun used in the robbery was a “dangerous weapon.” We affirm. This opinion will not be published.

2012AP2749-CR, 2012AP2750-CR State v. Erickson

Dist III, Marinette County, Morrison, J., Per Curiam

Attorneys: For Appellant: Sczygelski, Ralph, Manitowoc; For Respondent: Brey, Allen R., Marinette; Kassel, Jeffrey J., Madison

Wisconsin Court of Appeals

Criminal

Criminal Procedure — Miranda warnings

Abdiwahab M. Hussein appeals a judgment convicting him of one count of kidnapping, as a party to a crime, and four counts of first-degree sexual assault aided by others, three of which were charged as a party to a crime. Hussein also appeals an order denying his motion for postconviction relief. He argues: (1) that the circuit court should have suppressed the statement he made to the police because he did not knowingly and intelligently waive his Miranda rights; and (2) that his trial lawyer ineffectively represented him. We affirm. This opinion will not be published.

2012AP2006-CR State v. Hussein

Dist I, Milwaukee County, Ashley, J., Per Curiam

Attorneys: For Appellant: Bonneson, Paul G., Wauwatosa; For Respondent: Loebel, Karen A., Milwaukee; Wren, Christopher G., Madison

Wisconsin Court of Appeals

Criminal

Sentencing — sentence credit

Sentence credit under sec. 302.11(7)(b) is applied not to the term of reincarceration ordered by DHA, but to the remaining period of parole after service of that term of reincarceration.

“Under WIS. STAT. § 302.11(7)(b), Obriecht ‘shall be incarcerated for the entire period of time determined by’ DHA. In this case, if the sentence credit were applied to the term of reincarceration ordered by DHA, instead of to the remaining period of parole, Obriecht would not be ‘incarcerated for the entire period of time determined by’ DHA. Such an application of the sentence credit would violate §302.11(7)(b). We therefore conclude that DOC’s application of Obriecht’s sentence credit to the period of parole, rather than to the term of reincarceration ordered by DHA, is consistent with the plain language of §302.11(7)(am) and (b). The effect of applying the 107 days of sentence credit to the remaining period of parole is to shorten Obriecht’s overall sentence, while ensuring that he serves the entire term of reincarceration ordered by DHA.”

Affirmed.

Recommended for publication in the official reports.

2013AP1345-CR State v. Obriecht

Dist. IV, Dane County, Hanrahan, J., Kloppenburg, J.

Attorneys: For Appellant: Obriecht, Andrew M., pro se; For Respondent: Kaiser, Robert J., Jr., Madison; Lloyd, Katherine Desmond, Madison

Wisconsin Court of Appeals

Criminal

Search and Seizure – reasonable suspicion

Karl Freeman appeals a judgment convicting him of possession of narcotics with intent to deliver. The sole issue on appeal is whether drug evidence seized during the search of a vehicle in which Freeman was an occupant should have been suppressed. We conclude that the evidence was properly admitted, and affirm the judgment of conviction. This opinion will not be published.

2013AP1212-CR State v. Freeman

Dist IV, Jefferson County, Koschnick, J., Per Curiam

Attorneys: For Appellant: Jurek, Anthony J., Middleton; For Respondent: Perlman, David H., Madison; Hall, Monica J., Jefferson

Wisconsin Court of Appeals

Criminal

Reckless injury — sufficiency of the evidence

This case arises from a drug deal gone bad. The defendant, Jimmy Powell, met up with one of his customers to sell him some cocaine. The customer ended up with life-threatening injuries. The case went to trial with Powell facing three charges. Powell was acquitted of two charges and convicted of the third. Powell challenges the sufficiency of the evidence and alleges several instances of circuit court error and ineffective assistance of counsel relating to the trial. He also argues that the circuit court improperly applied $20,000 of bond money posted on his behalf to restitution even though that $20,000 specifically related to the two charges on which he was acquitted. We reject all of Powell’s arguments, and affirm. Not recommended for publication in the official reports.

2013AP1111-CR State v. Powell

Dist IV, Dane County, Ehlke, J., Lundsten, J.

Attorneys: For Appellant: Edwards, Suzanne, Dodgeville; For Respondent: Wellman, Sally L., Madison; Rusch, Shelly J., Madison

Wisconsin Court of Appeals

Criminal

Criminal Procedure — ineffective assistance — joinder

In these consolidated appeals, Lynn Moller appeals judgments of conviction for three counts of child abuse in violation of Wis. Stat. § 948.03(3)(b), and orders denying her motion for postconviction relief. Moller contends the circuit court erred in joining the two cases for trial and she further contends that she is entitled to a new trial because she received ineffective assistance of counsel. We affirm for the reasons discussed below. This opinion will not be published.

2012AP2587-CR, 2012AP2588-CR State v. Moller

Dist IV, Dane County, Ehlke, J., Per Curiam

Attorneys: For Appellant: Wood, Tracey A., Madison; For Respondent: Barnett, Paul L., Madison; Noet, Nancy A., Madison

U.S. Supreme Court

Civil

Intellectual Property — Lanham Act

Lost sales and damage to business reputation fall within the zone of interests protected by the Lanham Act.

A statutory cause of action is also presumed to be limited to plaintiffs whose injuries are proximately caused by violations of the statute. See, e.g., Holmes v. Securities Investor Protection Corporation, 503 U. S. 258, 268–270. This requirement generally bars suits for alleged harm that is “too remote” from the defendant’s unlawful conduct, such as when the harm is purely derivative of “misfortunes visited upon a third person by the defendant’s acts.” Id., at 268–269. In a sense, all commercial injuries from false advertising are derivative of those suffered by consumers deceived by the advertising. But since the Lanham Act authorizes suit only for commercial injuries, the intervening consumer-deception step is not fatal to the proximate-cause showing the statute requires. Cf. Bridge v. Phoenix Bond & Indemnity Co., 553 U. S. 639, 656. Thus, a plaintiff suing under §1125(a) ordinarily must show that its economic or reputational injury flows directly from the deception wrought by the defendant’s advertising; and that occurs when deception of consumers causes them to withhold trade from the plaintiff.

697 F. 3d 387, affirmed.

12-873 Lexmark International Inc. v. Static Control Components Inc.

Scalia, J.

U.S. Supreme Court

Civil

Tax — income tax — severance pay

Severance payments are taxable wages for FICA purposes.

The Internal Revenue Code chapter governing income-tax withholding does not limit the meaning of “wages” for FICA purposes. Like FICA’s definitional section, §3401(a) has a broad definition of “wages” and contains a series of specific exemptions. Section 3402(o) instructs that “supplemental unemployment compensation benefits” or SUBs, which include severance payments, be treated “as if” they were wages. Contrary to Quality Stores’ reading, this “as if” instruction does not mean that severance payments fall outside the definition of “wages” for income-tax withholding purposes and, in turn, are not covered by FICA’s definition. Nor can Quality Stores rely on §3402(o)’s heading, which refers to “certain payments other than wages.” To the extent statutory headings are useful in resolving ambiguity, see FTC v. Mandel Brothers, Inc., 359 U. S. 385, 388–389, §3402(o)’s heading falls short of declaring that all the payments listed in §3402(o) are “other than wages.” Instead, §3402(o) must be understood in terms of the regulatory background against which it was enacted. In the 1950’s and 1960’s, because some States provided unemployment benefits only to terminated employees not earning wages, IRS Rulings took the position that severance payments tied to the receipt of state benefits were not wages. To address the problem that severance payments were still considered taxable income, which could lead to large year-end tax liability for terminated workers, Congress enacted §3402(o), which treats both SUBs and severance payments the IRS considered wages “as if” they were wages subject to withholding. By extending this treatment to all SUBs, Congress avoided the practical problems that might arise if the IRS later determined that SUBs besides severance payments linked to state benefits should be exempt from withholding. Considering this regulatory background, the assumption that Congress meant to exclude all SUBs from the definition of “wages” is unsustainable. That §3402(o)does not narrow FICA’s “wages” definition is also consistent with the major principle of Rowan Cos. v. United States, 452 U. S. 247: that simplicity of administration and consistency of statutory interpretation instruct that the meaning of “wages” should be in general the same for income-tax withholding and for FICA calculations.

693 F. 3d 605, reversed and remanded.

12-1408 U.S. v. Quality Stores Inc.

Kennedy, J.

U.S. Supreme Court

Criminal

Firearms — misdemeanor crime of domestic violence

A state court battery conviction is a misdemeanor crime of domestic violence under 18 U.S.C. 922(g)(9).

Under this definition of “physical force,” Castleman’s conviction qualifies as a “misdemeanor crime of domestic violence.” The application of the modified categorical approach—consulting Castleman’s state indictment to determine whether his conviction entailed the elements necessary to constitute the generic federal offense—is straightforward. Castleman pleaded guilty to “intentionally or knowingly caus[ing] bodily injury to” the mother of his child, and the knowing or intentional causation of bodily injury necessarily involves the use of physical force. First, a “bodily injury” must result from “physical force.” The common-law concept of “force” encompasses even its indirect application, making it impossible to cause bodily injury without applying force in the common-law sense. Second, the knowing or intentional application of force is a “use” of force. Leocal v. Ashcroft, 543 U. S. 1, distinguished.

695 F. 3d 582, reversed and remanded.

12-1371 U.S. v. Castleman

Sotomayor, J.; Scalia, J., concurring; Alito, J., concurring.

U.S. Court of Appeals for the Seventh Circuit

Civil

Employment — sex discrimination

Where an employee failed to meet the employer’s attendance policy, her termination was not sex discrimination.

“Under the direct method, the plaintiff must present either direct or circumstantial evidence of discrimination in her opposition to summary judgment. See Koszola v. Bd. of Educ. of the City of Chi., 385 F.3d 1104, 1109 (7th Cir. 2004). Regardless of the type of evidence presented, the direct method is used when that evidence would permit the trier of fact to find that unlawful discrimination caused the adverse job action. Blise v. Antaramian, 409 F.3d 861, 866 (7th Cir. 2005). Bass, however, offered no evidence that would allow a trier of fact to find that sex discrimination lay behind the District’s action. Speculation is no substitute for evidence at the summary judgment stage. In that connection, Bass seems to have misunderstood her burden: her brief states that ‘[n]o real evidence has been submitted which would preclude a jury finding of discrimination on the part of the defendant. No evidence has been presented to show that the discipline and termination of Bass caused her to be treated the same as other male employees.’ (Emphasis added.) This statement may be true, but it misstates the test in discrimination cases. It is Bass, the party with the burden of proof, who must present some evidence that would allow a rational jury to infer intentional discrimination by the District. She did not do so. Instead, the District went the extra mile and provided valid reasons for its decision to terminate her employment. Under the CBA, Bass was entitled to a certain amount of leave. She exceeded that allowance by a significant margin. She was warned, meetings were held, she did not return to work, and she was fired. Three men were also fired for the same reason between 2008 and 2011. No trier of fact could find discrimination on that record.”

Affirmed.

13-1742 Bass v. Joliet Public School District No. 86

Appeal from the United States District Court for the Northern District of Illinois, Darrah, J., Wood, J.

U.S. Court of Appeals for the Seventh Circuit

Civil

Antitrust — tying

It does not violate the antitrust laws for a concert venue to charge a fee for parking, regardless of whether the customer drives to the venue.

“There are times when consumers are required to accept a package deal in order to get the part of the package they want. An airline passenger with no luggage may prefer the cost of baggage to be decoupled from the cost of a seat, and a law student may prefer to pay lower tuition and avoid ‘free’ pizza days. But while some people may find these bundles annoying, or even unfair, the tie is not illegal unless the standards set forth in the governing antitrust cases have been met. (Batson did not allege that the offer of a parking place was fraudulent because all places were filled; we thus have nothing to say about that or any other variation on the facts before us.)”

Affirmed.

13-1560 Batson v. Live Nation Entertainment, Inc.

Appeal from the United States District Court for the Northern District of Illinois, Feinerman, J., Wood, J.

U.S. Court of Appeals for the Seventh Circuit

Civil

Tax — claim preclusion

A decision in a prior action that an ERISA plan did not terminate bars a subsequent action alleging that the plan did terminate.

“In Carter I, we concluded that the Plan did not terminate. Appellants possessed—and exercised—a full and fair opportunity in Carter I to litigate the issue it seeks to have adjudicated in the Tax Court: specifically, whether the Plan terminated. However, appellants’ unsuccessful action in Carter I collaterally estops the Tax Court from making that determination. Appellants are precluded from re-litigating the issue of whether the Plan terminated.”

Affirmed.

13-2822 Carter v. CIR

Appeal from the United States Tax Court, Manion, J.

U.S. Court of Appeals for the Seventh Circuit

Civil

Antitrust — price fixing

Where the defendants were only overcharging foreign subsidiaries, the plaintiff’s antitrust action was properly dismissed.

“The Supreme Court has warned that rampant extraterritorial application of U.S. law ‘creates a serious risk of interference with a foreign nation’s ability independently to regulate its own commercial affairs.- F. Hoffmann-La Roche Ltd. v. Empagran S.A., supra, 542 U.S. at 165. The Foreign Trade Antitrust Improvements Act was intended to prevent such ‘unreasonable interference with the sovereign authority of other nations.’ Id. at 164. The position for which Motorola contends would if adopted enormously increase the global reach of the Sherman Act, creating friction with many foreign countries and ‘resent[ment at] the apparent effort of the United States to act as the world’s competition police officer,’ a primary concern motivating the foreign trade act. United Phosphorus, Ltd. v. Angus Chemical Co., 322 F.3d 942, 960–62 (7th Cir. 2003) (en banc) (dissenting opinion), overruled on other grounds by Minn-Chem, Inc. v. Agrium, Inc., supra. It is a concern to which Motorola is oblivious.”

Affirmed.

14-8003 Motorola Mobility LLC v. AU Optronics Corp.

Petition for Leave to Take an Interlocutory Appeal from the United States District Court for the Northern District of Illinois, Gottschall, J., Posner, J.

U.S. Court of Appeals for the Seventh Circuit

Criminal

Criminal Procedure — exculpatory evidence — harmless error

Where the evidence of guilt was overwhelming, the prosecutor’s failure to turn over exculpatory evidence is harmless error.

“More than 50 years ago, the Supreme Court announced in Brady v. Maryland, 373 U.S. 83 (1963), that prosecutors have a duty to turn over upon request any material evidence that is favorable to the defense. One would think that by now failures to comply with this rule would be rare. But Brady issues continue to arise. Often, nondisclosure comes at no price for prosecutors, because courts find that the withheld evidence would not have created a ‘reasonable probability of a different result.’ Kyles v. Whitley, 514 U.S. 419, 434 (1995) (quotation omitted). We must leave for another day a closer examination of the incentive structure created by Brady’s harmless-error exception, because the case before us is another in which the Brady violations do not drive the result. The evidence implicating Hector Morales in a vast mail-fraud scheme was overwhelming, and we are confident that the prosecution’s alleged Brady violation (a failure to disclose two possibly exculpatory emails until after trial) made no difference. We therefore affirm the district court’s denial of Morales’s motion for a new trial.”

Affirmed.

12-3558 & 13-1103 U.S. v. Morales

Appeals from the United States District Court for the Northern District of Illinois, Norgle, J., Wood, J.

U.S. Court of Appeals for the Seventh Circuit

Criminal

Wire Fraud – defenses — jury instructions

A defendant charged with wire fraud is not entitled to a buyer-seller instruction.

“The buyer-seller instruction, however, does not provide a defense to an element contained in a charge for wire fraud. The government must prove the following elements to convict a defendant of wire fraud: ‘(1) the defendant participated in a scheme to defraud; (2) the defendant intended to defraud; and (3) a use of an interstate wire in furtherance of the fraudulent scheme.’ United States v. Turner, 551 F.3d 657, 664 (7th Cir. 2008). Walker argues that the buyer-seller instruction encompasses his defense to the scheme-to-defraud element. However, ‘a scheme to defraud is conduct intended or reasonably calculated to deceive a person of ordinary prudence or comprehension.’ United States v. Hanson, 41 F.3d 580, 583 (10th Cir. 1994). It does not involve an agreement with another to commit a crime. Accordingly, the existence of a mere buyer-seller relationship is not a defense to the scheme-to-defraud element of wire fraud. As such, the failure to include Walker’s buyer-seller instruction did not deny Walker a fair trial and it was not error for the district court to reject that instruction.”

Affirmed.

13-2145 U.S. v. Walker

Appeal from the United States District Court for the Northern District of Illinois, Leinenweber, J., Gilbert, J.

U.S. Court of Appeals for the Seventh Circuit

Criminal

Sentencing — reasonableness

A 720-month sentence for racketeering is not unreasonable.

“We find that the court properly exercised its sentencing discretion in Polchan’s case as well. The district court explained that it chose a sixty-year sentence because it wanted the length of imprisonment to ‘reflect[] the seriousness of [Polchan’s] ongoing criminal offense and provide[] a punishment that is just for all that he has done.’ The judge emphasized how ‘organized criminal activity performed over a long period of time, deliberate and purposeful, poses a greater threat to the very fiber of our community.’ And the judge described his conviction that a serious sentence was necessary because ‘the public needs to be protected both from Mr. Polchan and from the idea that organized criminal activity might well be worth something, might well be worth doing.’ Through this explanation, the court adequately tied its sixty-year sentence to the factors listed in 18 U.S.C. § 3553(a). We cannot say that its ultimate decision — which was within Polchan’s guidelines range — was unreasonable.”

Affirmed.

11-3022, 12-1180 & 12-1656 U.S. v. Volpendesto

Appeals from the United States District Court for the Northern District of Illinois, Guzmán, J., Flaum, J.

Polls

Should Steven Avery be granted a new evidentiary hearing?

View Results

Loading ... Loading ...

Legal News

See All Legal News

WLJ People

Sea all WLJ People

Opinion Digests