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Weekly Case Digests — July 21-25, 2014

By: WISCONSIN LAW JOURNAL STAFF//July 25, 2014//

Weekly Case Digests — July 21-25, 2014

By: WISCONSIN LAW JOURNAL STAFF//July 25, 2014//

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Wisconsin Law Journal’s Case Digests — July 21-July 25, 2014

CIVIL OPINIONS 

U.S. Court of Appeals for the 7th Circuit

Civil
Public Health — disability benefits

Where the ALJ failed to take into account a disability’s claimants RFC, the denial of benefits is reversed.

“Based on the record, we conclude that the ALJ failed to build the accurate and logical bridge from the evidence to her conclusion so that, we as a reviewing court, could assess the validity of her ultimate findings and afford Murphy meaningful judicial review. Young v. Barnhart, 362 F.3d 995, 1002 (7th Cir. 2004). The ALJ’s RFC determination is inadequate because it is not supported by substantial evidence, such as a doctor’s functional assessment, or Dr. Mayer’s notes and Murphy was not discredited to the point where the ALJ could not rely on her testimony. Based on these facts, the RFC assessment does not take into account Murphy’s asserted inability to lift no more than twenty pounds at a time, carry objects weighing up to ten pounds, or stand or walk for six hours of an eight-hour workday.” Reversed and Remanded.

13-3154 Murphy v. Colvin

Appeal from the United States District Court for the Northern District of Illinois, Kim, Mag. J., Williams, J.

CIVIL PROCEDURE

U.S. Court of Appeals for the 7th Circuit

Civil
Civil Procedure — personal jurisdiction — consent

In determining whether a foreign corporation consented to suit in Wisconsin, the court is not limited to the final contract between the parties.

“The district court inferred from this that the only terms in force between the parties are those in the master contract. As that contract does not specify where litigation will occur, Idento has not consented to suit in Wisconsin. The problem with that approach is that the inconsistent purchase-and-sale forms countermand each other; they leave the parties’ prior agreements unaffected. It takes a new agreement to knock out an old one, and the inconsistent forms mean that there has not been a new agreement. If the parties’ prior agreements include consent to litigate in Wisconsin, then this suit can proceed.”

Vacated and Remanded.

13-2300 BouMatic LLC v. Idento Operations BV

Appeal from the United States District Court for the Western District of Wisconsin, Conley, J., Easterbrook, J.

Wisconsin Court of Appeals

Civil
Civil Procedure -venue

William Parker appeals a nonfinal order granting a Wis. Stat. 801.63 motion to stay the proceeding and permit trial in a foreign forum. Parker argues the court erroneously exercised its discretion because the motion was untimely and the court applied the wrong legal standard. Parker further argues that any argument for enlarging the time for filing the motion under Wis. Stat. 801.15(2) was forfeited, and that, regardless, there was no excusable neglect as required by that statute. We agree with Parker that the motion was untimely. We therefore reverse and remand. This opinion will not be published.

2013AP1624 Parker v. Sappi Cloquet, LLC

Dist. III, Chippewa County, Isaacson, J., Per Curiam.

Attorneys: For Appellant: Golla, Russell T., Stevens Point; Richie, John P., Eau Claire; Wickstrom, Beverly, Eau Claire; For Respondent: Herber, Dan, Minneapolis; Kain, Christine R.M., Minneapolis; Connolly, Daniel, Minneapolis

U.S. Court of Appeals for the 7th Circuit

Civil
Civil Procedure — diversity jurisdiction — business entities

A Chinese Ltd. is not a corporation for purposes of determining international diversity jurisdiction.

“Given the parties’ agreement that Changzhou Fellowes is closer to a limited liability company than to any other business structure in this nation, it does not have its own citizenship—and it does have the Illinois citizenship of its member Hong Kong Fellowes, which prevents litigation under the diversity jurisdiction. We need not decide today whether to overrule Autocephalous Greek-Orthodox Church, in which the juridical-entity reasoning was an alternative ground of decision. It should be understood, however, that the case cannot be generalized to entities other than religious bodies organized under the law of Cyprus.”

Vacated and Remanded.

12-3124 Fellowes Inc. v. Changzhou Zinrui Fellowes Office Equipment Co. Ltd.

Appeal from the United States District Court for the Northern District of Illinois, Guzmán, J., Easterbrook, J.

CONSUMER PROTECTION

U.S. Court of Appeals for the 7th Circuit

Civil
Consumer Protection – FCRA — sovereign immunity

Congress has waived the federal government’s immunity to suit under the FCRA.

“The FCRA says that courts may award punitive damages for willful violations. 15 U.S.C. §1681n(a)(2). According to the government, this shows that §1681n can’t apply to it, no matter what §1681a(b) says, for there is a tradition that the United States is not subject to punitive damages. (The Federal Tort Claims Act, for example, forbids them. 28 U.S.C. §2674 ¶1.) A tradition differs from a rule of law, however. Congress can authorize punitive awards against the United States. If the interaction of §1681a(b) and §1681n(a)(2) creates excessive liability — which it won’t if federal officers obey the statute — then the solution is an amendment, not judicial rewriting of a pellucid definitional clause. See, e.g., Michigan v. Bay Mills Indian Community, 134 S. Ct. 2024, 2033–34 (2014).”

Affirmed.

13-1602 Bormes v. U.S.

Appeal from the United States District Court for the Northern District of Illinois, Norgle, J., Easterbrook, J.

CORPORATIONS

Wisconsin Supreme Court

Civil
Corporations — fiduciary duty

A complaint by minority shareholders that failed to allege an improper material benefit at the expense of the minority shareholders was properly dismissed.

“We conclude that Wis. Stat. § 180.0828(1) unequivocally sets forth the terms on which directors may be held liable for their decisions. It is both a substantive law and a procedural device by which to allocate a burden. Reget, 242 Wis. 2d 278, ¶¶17-18 (the rule ‘immunize[s] individual directors from liability and protects the board’s actions’ and ‘creates an evidentiary presumption that the acts of the board of directors were done in good faith’). As such, a party challenging the decision of a director must plead facts sufficient to plausibly show that they are entitled to relief, i.e., facts that show the director’s actions constituted: a ‘willful failure to deal fairly’ with a ‘shareholder[] in connection with a matter in which the director has a material conflict of interest’; a ‘violation of criminal law’; a ‘transaction from which the director derived an improper personal profit’; or ‘[w]illful misconduct.’ § 180.0828(1)(a)-(d). This is a straightforward application of notice pleading standards to the substantive law of the case because substantive law drives what facts must be pled.”

Reversed.

2012AP1967 Data Key Partners v. Permira Advisers LLC

Roggensack, J.

Attorneys: For Appellant: Taeuber, Stacy, Madison; Brualdi, Richard B., New York, NY; For Respondent: Sennett, Nancy J., Milwaukee; Wronski, Andrew J., Milwaukee; Pearson, Eric Gordon, Milwaukee; Park, Amy S., Palo Alto, Calif.; Horvath, Richard S., Jr., Palo Alto, Calif.

IMMIGRATION

U.S. Court of Appeals for the 7th Circuit

Civil
Immigration – asylum — Belarus

Where an asylum applicant is a leader of Malady Front in Belarus, the immigration judge erred in finding that she would not be persecuted for her political beliefs if removed.

“The Board, however, concluded that the officers’ more lenient treatment of Sobaleva’s companions negated the possibility that her politics played a role in motivating the attack. We do not follow that reasoning. Sobaleva became the most vocal and resistant member of the group when her passport was not returned as it would have been during a routine stop. She also had been arrested and detained fairly recently. Both facts are consistent with the officers being motivated by her political opposition to the regime. The fact that the officers were content to give her a concussion without arresting her at the time does not suggest, as the Board reasoned, a non-political motive.” Petition Granted.

13-3651 Sobaleva v. Holder

Petition for Review of a Decision of the Board of Immigration Appeals, Hamilton, J.

U.S. Court of Appeals for the 7th Circuit

Civil
Immigration — Child Status Protection Act

Retroactive application of the one-year rule in the Child Status Protection Act would be manifestly unjust.

“In light of the state of the law at the critical time, a reasonable person reasonably could have assumed that the Act did not require him or her to file an application within one year. Before the sea change in O. Vasquez in 2012, which occurred too late for Velásquez to comply with it, the ‘substantial test’ steps had been consistently applied to the ‘sought to acquire’ language in the Act since 2004. Cf. Garfias-Rodriguez, 702 F.3d at 522 (applying rule retroactively where prior rule in effect for 21 months, during which time petitioner took no action in reliance); Clark-Cowlitz, 826 F.2d at 1083–84 (applying rule retroactively where previous rule was in place for six months, during which time it was ‘beclouded’ by possibility of being overturned on appeal). The Board’s new one-year filing rule in O. Vasquez did not merely fill a void ‘in the interstices of the [statute],’ Retail, Whole-sale, 466 F.2d at 391 (quoting Chenery, 332 U.S. at 202–03); rather, the new one-year filing rule reflected a shift in position ‘solely as a result of a change in agency policy,’ Clark-Cowlitz, 826 F.2d at 1083. In such a case, retroactive application is disfavored.”

Petition Granted.

13-2610 Velasquez-Garcia v. Holder

Petition for Review of an Order of the Board of Immigration Appeals, Wood, J.

JUVENILES

Wisconsin Court of Appeals

Civil
Juveniles – TPR

Queentesta H. appeals the order terminating her parental rights to Majesty Q. H., her daughter. The order was entered after a jury found on two special-verdict forms, as material, that: (1) (a) Majesty was a child in continuing need of protection or services, (b) Queentesta H. did not “meet the conditions established for the safe return” of Majesty to Queentesta H.’s home, and (c) there was “a substantial likelihood that Queentesta [H.] will not meet these conditions within the nine-month period following the conclusion” of the termination-of-parental-rights hearing; and (2) Queentesta H. had abandoned Majesty by not visiting or communicating with her “for a period of three months or longer.” The trial court answered “yes” to the following first questions on each of the verdict firms:

First Verdict Form: “Has Majesty [] been adjudged to be in need of protection or services and placed outside the home for a cumulative total period of six months or longer pursuant to one or more court orders containing the termination of parental rights notice required by law?”

Second Verdict Form: “Was Majesty [] placed, or continued in a placement, outside Queentesta [H.]’s home pursuant to a court order which contained the termination of parental rights notice required by law?”

(Emphasis added.) The only issue Queentesta H. raises on this appeal is whether the trial court erred by answering the first question on each of the special verdict forms rather than submitting those questions to the jury because, Queentesta H. contends, a jury should have determined whether the notices referred to in the two questions had “the termination of parental rights notice required by law.” She does not argue that any other finding made by the trial court’s answer to those questions was error. Stated another way, she does not contest on this appeal that there was any dispute that: (1) Majesty had “been adjudged to be in need of protection or services and placed outside the home for a cumulative total period of six months or longer pursuant to one or more court orders”; or (2) Majesty was “placed, or continued in a placement, outside Queentesta [H.]’s home pursuant to a court order.” Her only objection on this appeal is that the trial court should have let the jury determine whether the court orders had “the termination of parental rights notice required by law.”

We affirm. This opinion will not be published.

2014AP761 State v. Queentesta H.

Dist. I, Milwaukee County, DiMotto, J., Fine, J.

Attorneys: For Appellant: Grau, John J., Waukesha; For Respondent: Starling, Claire, Wauwatosa

LABOR AND EMPLOYMENT

U.S. Court of Appeals for the 7th Circuit

Civil
Employment — race discrimination

Where it is undisputed that a job applicant’s race was unknown to the employee making hiring decisions, summary judgment was properly granted to the employer on the applicant’s race discrimination claim.

“The applications sent to Page did not include the Affirmative Action Program form, and none of those involved in the hiring process for that Specialist position had any information as to the applicant’s race. It is undisputed that Page did not know the race of the applicants when she evaluated the applications, and that the interview selection process and ultimate hiring decision were based upon finding the most qualified individual for the position. Rapp did not participate in the grouping of applications, the decision as to whom to interview, or the decision as to whom to hire. Of the 42 African-American applicants (excluding Matthews), Rapp determined that 34 met the minimum qualifications and forwarded their applications to Page.”

Affirmed.

13-1839 Matthews v. Waukesha County

Appeal from the United States District Court for the Eastern District of Wisconsin, Randa, J., Rovner, J.

Wisconsin Supreme Court

Civil
Employment – workers’ compensation

A circuit court can compel an employee to accept settlement of a third-party tort claim.

“We conclude that a circuit court may compel an employee to accept settlement of the claim the legislature created in Wis. Stat. § 102.29(1). In such a claim, both the employee and the worker’s compensation insurer share the right to sue third parties; the employee and the worker’s compensation insurer have an equal voice in the prosecution of the claim; recovery from the claim is apportioned in the manner described in § 102.29(1)(b); and the circuit court is empowered to resolve any disputes arising between the employee and the worker’s compensation insurer during the prosecution of their claim, including those disputes involving settlement.”

“We also conclude that our interpretation of Wis. Stat. § 102.29(1) does not violate Adams’ right to a jury trial because the claim § 102.29(1) creates is not the counterpart of a cause of action at law recognized at the time of the adoption of the Wisconsin Constitution. We further conclude that the circuit court’s authority to compel an employee to accept settlement does not violate procedural due process because judicial resolution of disputes is part of the statutory claim. Lastly, we conclude that the circuit court appropriately exercised its discretion by defining the dispute, taking stock of the relative positions of the parties and considering matters that impacted the fairness of the settlement.”

Affirmed.

2012AP580 Adams v. Northland Equipment Co. Inc.

Roggensack, J.

Attorneys: For Appellant: Greenwald, Thomas E., Rockford, Ill.; For Respondent: Ryan, James M., Brookfield; Woehl, Dustin, Milwaukee

Wisconsin Supreme Court

Civil
Employment – retaliation

Uncompensated interns are not entitled to the anti-retaliation protections of sec. 146.997 (2007-08) — Wisconsin’s health care worker protection statute.

“[W]e agree with LIRC that Wis. Stat. § 146.997 applies only to employees, a category that does not include interns who do not receive compensation or tangible benefits. See Masri v. Med. Coll. of Wis., ERD No. CR200902766 (LIRC, Aug. 31, 2011). As Wis. Stat. § 146.997 does not define ‘employee,’ we must give the term its ordinary meaning. State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. After consulting the language, context, and structure of the statute, we conclude that LIRC’s interpretation is reasonable, and there is no more reasonable interpretation.

Because Masri received no compensation or tangible benefits, she was not an employee of MCW and was therefore not entitled to anti-retaliation protection under § 146.997(3)(a).”

Affirmed.

2012AP1047 Masri v. LIRC

Prosser, J.

Attorneys: For Appellant: Albrecht, Lawrence G., Milwaukee; McCann, Aaron P., Milwaukee; Lonze, Katie S., Milwaukee

Wisconsin Court of Appeals

Civil
Employment – breach of contract

Nicolet Hardwoods Corporation; Pine River Trucking, LLC; and Connor Timber Associates Limited Partnership (collectively, the Companies) appeal a money judgment entered in favor of Jason Hilger. The Companies argue: (1) the circuit court erroneously denied a motion to dismiss Pine River and Connor Timber from the suit; (2) the court erroneously denied motions to dismiss Hilger’s two tort claims until after the close of evidence; and (3) the court erroneously failed to consider the Companies’ motions after verdict. Affirmed in part, and Reversed in part. This opinion will not be published.

2013AP1891 Hilger v. Nicolet Hardwoods Corp.

Dist. III, Forest County, Stenz, J., Per Curiam.

Attorneys: For Appellant: Wagman, John B., Wausau; For Respondent: Rhode, John B., Antigo

U.S. Court of Appeals for the 7th Circuit

Civil
Employment – Sex discrimination

Where an employee was terminated for having sex at work, but the other employee was given a full pension and retained as an independent contractor, summary judgment was improperly granted to the employee on her sex discrimination claim.

“[T]hey were certainly treated differently — Orton-Bell was terminated and was banned from working in any capacity for the DOC. Ditmer, however, was able to enter into a settlement agreement that permitted him to resign, enabled him to keep all his benefits including his pension, and allowed him to work at the prison with an outside contractor (which he did).8 The DOC seems to have acquiesced to those outcomes as the results of the SEAC appeal process. But the disparity of consequences was the effect of the DOC’s willingness to settle with Ditmer but not with Orton-Bell. The DOC hints that this was caused by different litigation strategies, but it fails to provide any reason it did not offer Orton-Bell the same settlement terms it gave Ditmer. In fact, Orton-Bell testified that she asked Ditmer about his settlement but Ditmer responded that he could not talk to her because of the settlement.

Orton-Bell Dep. at 162. The DOC, focusing on its argument that Ditmer and Orton-Bell were neither similarly situated nor treated differently, has not seriously offered a reason for their disparate treatment. Even if we were to infer the reason that the DOC hints at — that it was merciful to Ditmer because of his long career — Orton-Bell has offered sufficient evidence of pretext. Firing the Major in Charge of Custody for an affair which compromised his ability to lead (especially given his repeated past violations of the conduct code) makes sense. But letting him resign and retain the ability to keep working (with all attendant benefits) while firing the female counselor with whom he had an affair is suspect. This conclusion results in large part from the failure of the parties to develop the record more about the SEAC process and the DOC’s decision to settle with Ditmer. Indeed, there was so little development below that the district court missed the fact that Orton-Bell had even appealed. Based on the evidence currently available, we conclude that the discrimination aspect of this suit must go forward, but more discovery is needed on these issues.”

Affirmed in part, and Reversed in part.

13-1235 Orton-Bell v. State of Indiana

Appeal from the United States District Court for the Southern District of Indiana, Lawrence, J., Manion, J.

MUNICIPALITIES

Wisconsin Court of Appeals

Civil
Municipalities — building permits

The Town of Saratoga appeals a decision of the circuit court granting a writ of mandamus compelling the Town, via its building inspector, to issue a building permit to Golden Sands Dairy, LLC, for the construction of seven farm buildings. The Town argues that the circuit court erred in granting the writ for four reasons: (1) Golden Sands did not have a vested right in the building permit; (2) the building inspector did not have a positive and plain duty to issue the permit; (3) Golden Sands would not suffer substantial harm if the permit were denied; and (4) Golden Sands has an adequate alternative remedy to mandamus through a separate lawsuit pending between Golden Sands and the Town.

For the following reasons, we reject each of these arguments and affirm the decision of the circuit court. Not recommended for publication in the official reports.

2013AP1468 Golden Sands Dairy LLC v. Fuehrer et al.

Dist IV, Wood County, Eagon, J., Blancard, P.J.

Attorneys: For Appellant: Braithwaite, Ryan, Milwaukee; Bitar, Remzy D., Milwaukee; For Respondent: Formella, Brian G., Stevens Point; Hemaidan, Jordan J., Madison; O’Callaghan, Daniel A., Madison; Salman, Tanya, Madison; Lubinsky, Lori M., Madison

PROFESSIONAL RESPONSIBILITY

Wisconsin Supreme Court

Civil
Professional Responsibility — public reprimand

Where attorney John M. Curtin was publicly reprimanded in Arizona, reciprocal discipline is appropriate.

“Based upon our independent review of the matter, we conclude that the SCR 22.12 stipulation should be accepted and that Attorney Curtin should be publicly reprimanded as discipline identical to that imposed by the Arizona Supreme Court. Since Attorney Curtin entered into a stipulation with the OLR and there was no need to appoint a referee, we conclude that no costs should be assessed.”

2013AP2705-D OLR v. Curtin

Per curiam.

Attorneys: For Complainant: Hendrix, Jonathan E., Madison; For Respondent: Curtin, John M., Phoenix, Ariz.

Wisconsin Supreme Court

Civil
Professional Responsibility — suspension

Where attorney Richard W. Voss committed numerous violations relating to the handling of a ward’s funds, an 18-month suspension is appropriate.

“Wisconsin does adhere to a system of progressive discipline. Attorney Voss has been licensed to practice law in Wisconsin for nearly four decades. His disciplinary history consists of one private reprimand and one public reprimand. After careful consideration, we conclude that an eighteen-month suspension of his license to practice law is an appropriate sanction. We agree with the referee that Attorney Voss should be required to pay additional restitution in the amount of $2,077.18 to J.K.’s estate and that he be assessed the full costs of this proceeding. We further agree with the referee that, as a condition of the reinstatement of his license, Attorney Voss be required to demonstrate that he has in place a proper trust account consistent with supreme court rules.”

2012AP931-D OLR v. Voss

Per Curiam.

Attorneys: For Appellant: Weigel, William J., Madison; Spoke, Julie Marie, Madison; For Respondent: Voss, Richard W., Rhinelander

Wisconsin Supreme Court

Civil
Professional Responsibility — revocation

Where attorney Bridget E. Boyle has a history of neglecting client matters, revocation is appropriate.

“Having reviewed Attorney Boyle’s petition, the OLR’s summary of misconduct allegations in pending investigative matters, the referee’s report in Case No. 2012AP2423-D, and the OLR’s complaint in Case No. 2013AP1592-D, we conclude that the petition for consensual revocation should be granted. It is clear from the descriptions of the various representations that Attorney Boyle has engaged in a widespread pattern of serious professional misconduct that has harmed her clients. It is also clear that Attorney Boyle is currently unwilling or unable to conform her conduct to the standards that are required to practice law in this state.”

2012AP2423-D, 2013AP1592-D & 2014AP272-D OLR v. Boyle

Per Curiam.

Attorneys: For Appellant: Boyle, Bridget E., Milwaukee; For Respondent: Krohn, Robert G., Edgerton; Weigel, William J., Madison

PROPERTY

Wisconsin Court of Appeals

Civil
Property – gifts

This appeal involves a dispute over the distribution of funds in an investment account following the death of Jean Orsoni. Juliette Kangas asserts the investment account was a joint account that she and Orsoni co owned. As a result, she argues she became sole owner of the account at Orsoni’s death. Salem Evangelical Lutheran Church, Loren Johnson, and Lori Johnson (collectively, the Plaintiffs) argue Orsoni did not intend to create a joint account and did not intend to gift the investment account to Kangas. The Plaintiffs argue the funds in the account should have passed into a revocable trust Orsoni created, of which the Plaintiffs are beneficiaries. Affirmed. This opinion will not be published.

2013AP2064 Salem Evangelical Lutheran Church v. Kangas

Dist. III, Iron County, Madden, J., Per curiam.

Attorneys: For Appellant: Seidl, Mark A., Wausau; For Respondent: Cossi, Anthony D., Ironwood, Mich.

Wisconsin Court of Appeals

Civil
Property – foreclosure

Alexander Groysman, pro se, appeals from a circuit court judgment granting summary judgment of foreclosure to OneWest Bank, FSB (“OneWest”). Groysman argues that the circuit court erred in granting summary judgment because “[t]here are numerous deficiencies with OneWest’s evidence, which are all issues of material fact.” We affirm. This opinion will not be published.

2013AP970 One West Bank FSB v. Groysman

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

Attorneys: For Appellant: Groysman, Alexander, pro se; For Respondent: Rodriguez, Chaz, Brookfield; Ellis, Robert Hugh, Detroit, Mich.

Wisconsin Court of Appeals

Civil
Property – broker contracts

A sale is not a prerequisite to a broker’s earning a commission.

“Here, Ash Park and Re/Max entered into a Department-approved WB-3 Listing Contract that explicitly provided, in part, Re/Max earns a commission if Ash Park entered into an “enforceable contract” with a buyer. Nothing in the listing contract requires that a sale must occur before the broker earns a commission.

Ash Park’s single citation to the administrative definition of “exclusive right to sell” does not support a conclusion that the listing contract is void for public policy reasons. If Ash Park wanted a commission to be earned only on a completed sale, Ash Park could have negotiated for that provision in the listing contract. It did not.”

Reversed and Remanded.

Recommended for publication in the official reports.

2013AP1532 Ash Park, LLC, v. Alexander & Bishop, Ltd.

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

Attorneys: For Appellant: Marquette, Michael O., Green Bay; For Respondent: Burnett, R. George, Green Bay; McDermott, J. T., Oshkosh; Bailey-Rihn, Valerie, Madison

TAX

U.S. Court of Appeals for the 7th Circuit

Civil
Tax – Income tax – tax-exempt business leagues

Although organized as a non-profit corporation, a business is not tax-exempt where its primary purpose is providing retirement plans.

“The tax court recognized that an organization ‘whose principal purpose and activity is such as to qualify for “business league” exemption does not lose its exempt status by engaging in incidental activities which standing alone would be subject to taxation.’ It therefore proceeded to ‘examine the extent of petitioner’s insurance activities to see if they constitute[d] only incidental, as opposed to substantial, activities.’ Id. at 67. It found that the association’s insurance activities were directed towards providing benefits to individuals within the industry and those activities were substantial.

This was enough, it held, to require a finding that the association did not qualify for business league status. Here, we know that ABA Retirement’s involvement with the Program was in no way ‘incidental’—it was the fiduciary, and its own prospectus states that it was incorporated ‘for the purpose of promoting and facilitating the operation of the Plan and this is the only activity in which it is expected that ABA Retirement will engage.’ ABA Retirement’s day-to-day goal was to promote its own plan first and general retirement savings in the legal profession second; it therefore cannot receive tax-exempt status under § 501(c)(6).”

Affirmed.

13-2332 ABA Retirement Funds v. U.S.

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

TORTS

Wisconsin Court of Appeals

Civil
Torts – legal malpractice

Gary Plath appeals from a judgment dismissing his legal malpractice claim against Attorney Jeff Scott Olson and Olson’s law firm. Olson cross-appeals, arguing that the circuit court erred in denying his motion for sanctions against Plath for filing a frivolous claim. We agree with the circuit court that Plath’s failure to show that an attorney-client relationship existed between himself and Olson is detrimental to his legal malpractice claim. However, we also conclude that Plath’s claim was not frivolous. As such, we affirm. Not recommended for publication in the official reports.

2013AP2220 Plath v. Olson

Dist. I, Milwaukee County, Noonan, J., Brennan, J.

Attorneys: For Appellant: La Fleur, Catherine A., Milwaukee; Casper, Colin, Milwaukee; For Respondent: Erickson, Paul R., Milwaukee; Rosenzweig, Stacie H., Milwaukee

Wisconsin Court of Appeals

Civil
Torts – trespass – public policy

Kevin Stanford and the Stanford Trust (hereafter collectively referred to as “Stanford”) appeal the order granting summary judgment on claims alleged against Clinton L. Stamps and Time Warner Cable (hereafter collectively referred to as “Stamps”). The order was accompanied by a written decision in which the trial court determined that: Stamps trespassed on Stanford’s property by parking his work van — owned by Time Warner Cable — on a concrete pad next to Stanford’s garage without permission; Stamps’ trespass was a substantial cause of a fire that began in the van and spread to Stanford’s garage, destroying the garage; and, nevertheless, public policy factors precluded liability. Stanford argues that summary judgment is inappropriate in this case because public policy factors do not preclude liability, and we agree. We consequently reverse the trial court’s order. Not recommended for publication in the official reports.

2013AP2039 Stanford v. Time Warner Cable of Southeastern Wisconsin Limited Partnership

Dist. I, Milwaukee County, Foley, J., Curley, J.

Attorneys: For Appellant: Ogorchock, Thomas A., Milwaukee; For Respondent: Schimmel, George M., Milwaukee

Wisconsin Supreme Court

Civil
Torts – wrongful death

Minor children can recover for the wrongful death of their father under sec. 895.04(2) (2011-12), when the deceased leaves behind a spouse who was estranged from the deceased and who is precluded from recovering for the wrongful death.

“Upon examining the statutory text with these interpretive aids, we conclude that the phrase ‘surviving spouse’ in Wis. Stat. § 895.04(2) does not always simply mean any living spouse of the deceased. The meaning of the phrase ‘surviving spouse’ has been elucidated by scrutinizing unique fact situations to define ‘surviving spouse’ in accord with the legislative purposes of the wrongful death statutes, rather than considering only the literal meaning of the phrase ‘surviving spouse.’”

Reversed and Remanded.

2012AP2402 Force v. American Family Mutual Insurance Co.

Abrahamson, C.J.

Attorneys: For Appellant: Welcenbach, Joseph J., Milwaukee; For Respondent: Ratzel, James C., Brookfield; Schunk, Leslie, Brookfield

Wisconsin Supreme Court

Civil
Torts – railroads – preemption

A parade is not a specific hazard such that federal regulation preempts a negligence claim for excessive speed, but a vehicle stopped on the tracks is.

“First, the Elm Grove Memorial Day parade was not a ‘specific, individual hazard’ because the parade created only a generally dangerous traffic condition.

Imminence and specificity are crucial components of the specific, individual hazard exception to preemption. See Armstrong v. Atchison, Topeka & Santa Fe Ry. Co., 844 F. Supp. 1152, 1153 (W.D. Tex. 1994); Hightower v. Kansas City S. Ry. Co., 70 P.3d 835, 847 n.21 (Okla. 2003). While the parade traffic in general may have increased the likelihood of an accident, it did not create a specific hazard, nor did the mere increase in traffic present an imminent danger of a collision. The parade traffic in this case is far afield of the paradigmatic specific, individual hazard of a child or vehicle stuck on the tracks in front of an oncoming train. Therefore, we reverse that portion of the court of appeals decision that concluded that the Elm Grove parade was a specific, individual hazard. In addition, we reverse the court of appeals decision to the extent that it alters the circuit court’s dismissal of Rohde and to the extent that it alters the circuit court’s decision to exclude evidence of Soo Line’s prior notice of the parade, failure to issue a slow order, and failure to hit the brakes prior to seeing the vehicle on the tracks. See Hightower, 70 P.3d at 853-54.”

“Second, as Soo Line concedes, the vehicle on the tracks in front of the approaching train was a specific, individual hazard. Thus, the question whether the train crew was negligent in responding to the vehicle stuck on the tracks remains, and we affirm that portion of the court of appeals decision that determined that the circuit court properly denied the defendants’ summary judgment motion as it related to the claims regarding the train’s reaction to the vehicle on the tracks.”

Affirmed in part, and Reversed in part.

2012AP597 Partenfelder v. Rohde

Prosser, J.

Attorneys: For Appellant: Harding, Victor C., Milwaukee; For Respondent: Frazier, William H., Milwaukee; Thornton, Timothy R., Minneapolis; Bialzik, Melinda A., Milwaukee; Schmidt, Jonathan P., Minneapolis

CRIMINAL OPINIONS

Wisconsin Court of Appeals

Criminal
Disorderly Conduct — freedom of speech

Stephen Green appeals from a municipal forfeiture entered after a jury found him guilty of disorderly conduct on the grounds that Green disobeyed a police officer’s lawful order that he leave Walmart. Green’s main contention is that the First Amendment protected his right to disobey the officer’s order. This argument fails. We affirm. This opinion will not be published.

2013AP2659 City of Waukesha v. Green

Dist II, Waukesha County, Dorow, J., Brown, C.J.

Attorneys: For Appellant: Green, Stephen W., pro se; For Respondent: Eastman, Miles William Basil, Waukesha

CRIMINAL PROCEDURE

Wisconsin Supreme Court

Criminal
Criminal Procedure — Miranda warnings

A suspect’s statement to take him to his cell was not an unequivocal assertion of the right to remain silent.

“Cummings’ statement——‘Well, then, take me to my cell. Why waste your time? Ya know?’——similarly occurred during a period of verbal back and forth between Cummings and the officers, and is thus similarly subject to reasonable competing inferences. As a result of these competing inferences, we conclude that Cummings’ statement was not an unequivocal invocation of the right to remain silent. We therefore affirm the court of appeals.”

Affimed.

2011AP1653-CR & 2012AP520-CR State v. Cummings

Ziegler, J.

Attorneys: For Appellant: Karpe, David R., Madison; For Respondent: Isherwood, Veronica Fay, Stevens Point; Wittwer, Jacob J., Madison

CRIMINAL PROCEDURE

Wisconsin Court of Appeals

Criminal
Criminal Procedure — ineffective assistance — new trials

Matthew D. Campbell appeals a judgment of conviction entered on jury verdicts of guilty on one count of second-degree sexual assault of a child, one count of use of a computer to facilitate a child sex crime, and one count of causing a child between thirteen and eighteen years old to view sexual activity, and also appeals the order denying his motion for postconviction relief. Campbell contends that he is entitled to a new trial because he received the ineffective assistance of trial counsel in several respects. For the reasons we explain, we affirm. Not recommended for publication in the official reports.

2011AP1445-CR State v. Campbell

Dist IV, Dodge County, Pfizinger, J., Higginbotham, J.

Attorneys: For Appellant: Wood, Tracey A., Madison; For Respondent: Klomberg, Kurt F., Juneau; Probst, Robert, Madison

Wisconsin Supreme Court

Criminal
Criminal Procedure — ineffective assistance

A defendant who alleges in a sec. 974.06 motion that his postconviction counsel was ineffective for failing to bring certain viable claims must demonstrate that the claims he wishes to bring are clearly stronger than the claims postconviction counsel actually brought.

“However, in evaluating the comparative strength of the claims, reviewing courts should consider any objectives or preferences that the defendant conveyed to his attorney. A claim’s strength may be bolstered if a defendant directed his attorney to pursue it.”

“Second, the defendant has not offered a sufficient reason in his third postconviction motion for failing to raise his § 974.06 claim in his second postconviction motion. Without a sufficient reason, a defendant may not bring a claim in a § 974.06 motion if that claim ‘could have been raised in a previously filed sec. 974.02 motion and/or on direct appeal.’ State v. Escalona-Naranjo, 185 Wis. 2d 168, 173, 517 N.W.2d 157 (1994). Consequently, the defendant’s claim is barred.”

“Third, even if the § 974.06 motion were not barred on ‘sufficient reason’ grounds, the motion does not allege sufficient facts that, if true, would entitle the defendant to relief. The defendant failed to allege that the plea withdrawal claim was clearly stronger than the resentencing claim. He does not specifically state which postconviction attorney was ineffective and instead makes an ambiguous reference to ‘postconviction counsel.’ The motion then focuses almost exclusively on trial counsel and does not provide facts regarding postconviction counsel’s performance. Consequently, the defendant’s motion falls far short of what is required, and the circuit court properly determined that he is not entitled to an evidentiary hearing.”

Affirmed.

2012AP55 State v. Romero-Georgana

Prosser, J.

Attorneys: For Appellant: Lichstein, Byron C., Madison; Brelie, Sara Kelton, Madison; For Respondent: Gansner, William L., Madison; Lasee, David L., Green Bay

Wisconsin Court of Appeals

Criminal
Criminal Procedure — ineffective assistance

Kenneth A. James appeals from a judgment of conviction for repeated sexual assault of a child and from a postconviction order denying his request for a new trial. James contends that he received ineffective assistance of counsel when his trial counsel proceeded to trial without a transcript from his preliminary hearing. The circuit court found James’s trial counsel to be credible when he testified that James insisted on proceeding to trial despite knowing he could have asked for an adjournment due to the lack of the transcript. We affirm as James has not shown this testimony was incredible and James cannot claim his trial counsel was ineffective for following James’s own directive. Not recommended for publication in the official reports.

2013AP2409-CR State v. James

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

Attorneys: For Appellant: McClune, Scott Ryan, Milwaukee; For Respondent: Zapf, Robert D., Kenosha; Lloyd, Katherine Desmond, Madison

Wisconsin Court of Appeals

Criminal
Criminal Procedure — Miranda warnings

Christopher Seiler appeals from his conviction for second-degree sexual assault of a child. While on probation from prior convictions that included child sexual assault, Seiler in April 2007 was discovered parked alone in a car after dark with a juvenile female, in violation of his probation rules. Seiler was arrested and his agent visited him in jail, asking him to account for his recent activities and whereabouts, as his probation rules required him to do. Seiler told the agent that he was just discussing family issues with the girl. The agent disbelieved Seiler’s account and conducted a follow-up investigation. Thereafter the agent advised the sheriff’s department to investigate whether Seiler had sexual contact with the girl. The sheriff’s investigation resulted in the charge and conviction from which Seiler now appeals.

Seiler argues that his Fifth Amendment privilege against self-incrimination was violated because “the accusation against him was causally derived from a compelled, custodial statement to his probation agent without Miranda warnings,” i.e., by statements he made to the agent during their conversation about his whereabouts and activities. We reject Seiler’s argument because the investigation that led to Seiler’s charge was based on sources independent of his statements to the agent. The mere fact that Seiler happened to mention some of the people with whom the agent and sheriff’s investigators later spoke does not immunize him for prosecution for the crime the independent investigation uncovered. See Kastigar v. United States, 406 U.S. 441, 453 (1972) (holding that “use and derivative use” immunity is “coextensive with the scope of the privilege against self-incrimination”). Those he mentioned were already known to the agent and would have been contacted during the investigation regardless of Seiler’s mentioning them during his discussion with his agent while he was in jail. We affirm. Not recommended for publication in the official reports.

2013AP1911-CR State v. Seiler

Dist II, Ozaukee County, Malloy, J., Brown, C.J.

Attorneys: For Appellant: Schmaal, William E., Madison; For Respondent: Weinstein, Warren D., Madison; Gerol, Adam Y., Port Washington

Wisconsin Supreme Court

Criminal
Criminal Procedure — confidential informants — in camera review

To trigger an in camera review of whether to disclose a confidential informant’s identity, the required showing is a reasonable possibility, grounded in the facts and circumstances of the case, that the confidential informer may have information necessary to the defendant’s theory of defense.

“If we look at the plain language of the confidential informer statute stated above, it is clear Wis. Stat. § 905.10(3)(b) requires that a motion to compel disclosure of a confidential informer’s identity must be grounded in the facts and circumstances of the case. The phrase ‘[i]f it appears from the evidence in the case or from other showing’ implies that the motion must contain more than mere speculation that the informer has information necessary to the defendant’s theory of defense. Wis. Stat. § 905.10(3)(b). If a motion grounded in mere speculation were sufficient to warrant an in camera review, a defendant would be able to obtain a hearing in every instance. In other words, the exception would swallow the rule. Endorsing the view taken by Nellessen and the court of appeals creates a significant risk of collapsing the two-step process established by the confidential informer statute. Moreover, requiring the motion to be grounded in the facts and circumstances of the case combats against the possibility for abuse from defendants seeking disclosure ‘solely as a retaliatory move or in the interests of his peers in order to thwart the informer’s effectiveness in the future.’ Outlaw, 108 Wis. 2d at 141.”

Reversed and Remanded.

2012AP150-CR State v. Nellessen

Gableman, J.

Attorneys: For Appellant: Zell, Michael D., Stevens Point; For Respondent: Balistreri, Thomas J., Madison; Lambert, Craig S., Wisconsin Rapids

Wisconsin Court of Appeals

Criminal
Criminal Procedure – new trials

Reginald S. Curtis, pro se, appeals from an order denying his Wis. Stat. 974.06 (2011-12) motion for postconviction relief. We affirm on both procedural and substantive grounds, and we decline to order a new trial in the interest of justice. Affirmed. This opinion will not be published.

2013AP2384 State v. Curtis

Dist. I, Milwaukee County, Wagner, J., Fine, J.

Attorneys: For Appellant: Curtis, Reginald S., pro se; For Respondent: Loebel, Karen A., Milwaukee; O’Brien, Daniel J., Madison

Wisconsin Court of Appeals

Criminal
Criminal Procedure — plea withdrawal

Torance D. Jackson appeals from an order denying his Wis. Stat. 974.06 (2011-12) postconviction motion. He argues that he should be allowed to withdraw his guilty plea because it was not knowingly, intelligently, and voluntarily entered. He also argues that he is entitled to sentence modification. We reject his arguments and affirm the order. This opinion will not be published.

2013AP1856-CR State v. Jackson

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

Attorneys: For Appellant: Pinix, Matthew S., Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Probst, Robert, Madison

Wisconsin Supreme Court

Criminal
Criminal Procedure — right to a public trial

A defendant who fails to object to a judicial decision to close the courtroom forfeits the right to a public trial, so long as the defendant is aware that the judge has excluded the public from the courtroom.

“[T]he Sixth Amendment right to a public trial may be asserted by the defendant at any time during a trial. A defendant who fails to object to a judicial decision to close the courtroom forfeits the right to a public trial, so long as the defendant is aware that the judge has excluded the public from the courtroom. Although the Supreme Court has categorized a violation of the right to a public trial as a structural error, that categorization does not mandate a waiver analysis, and a defendant need not affirmatively relinquish his right to a public trial in order to lose it. It would be inimical to an efficient judicial system if a defendant could sit on his hands and try his luck in a closed courtroom only to argue after his conviction that his Sixth Amendment right to a public trial had been violated.”

Affirmed.

2011AP2424-CR & 2012AP918-CR State v. Pinno

Prosser, J.

Attorneys: For Appellant: Kachinsky, Leonard D., Appleton; For Respondent: Weber, Gregory M., Madison; Toney, Eric, Fond du Lac

Wisconsin Court of Appeals

Criminal
Criminal Procedure – plea withdrawal

Robert Lee Hamilton appeals an order denying his motion to withdraw his plea. He argues that: (1) he was not advised of, and was unaware of, the three-year presumptive minimum penalty for two of the counts to which he pled; (2) he was not advised of, and was not aware of, the meaning of utter disregard, an element of one of the charges to which he pled; (3) he did not understand the maximum potential penalty he faced due to incorrect advice from his lawyer; and (4) he received constitutionally ineffective assistance from his lawyer. We affirm. This opinion will not be published.

2013AP1425-CR State v. Hamilton

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

Attorneys: For Appellant: Lamb, Kaitlin A., Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Remington, Christine A., Madison

EVIDENCE

Wisconsin Court of Appeals

Criminal
1st-degree intentional homicide – sufficiency of the evidence

Sam Gwin, Jr., appeals a judgment convicting him of first-degree intentional homicide and felon in possession of a firearm. The issue is whether there is sufficient evidence to support the jury’s verdict. We affirm. This opinion will not be published.

2013AP968-CR State v. Gwin

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

Attorneys: For Appellant: Jensen, Jeffrey W., Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Sanders, Michael C., Madison

Wisconsin Court of Appeals

Criminal
1st-degree reckless homicide – Jury instructions – self defense

Brian A. Patterson appeals a judgment of conviction, following a jury trial, of first-degree reckless homicide. Patterson also appeals the order denying his postconviction motion. We affirm. Not recommended for publication in the official reports.

2013AP749-CR State v. Patterson

Dist. I, Milwaukee County, Cimpl, Brostrom, JJ., Kessler, J.

Attorneys: For Appellant: Jensen, Jeffrey W., Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Wellman, Sally L., Madison

JUVENILES

Wisconsin Supreme Court

Criminal
Juveniles — preliminary hearings

When a juvenile is charged in adult court, the court must find probable cause at the preliminary hearing that the juvenile committed an offense enumerated in sec. 938.183(1).

“[A]lthough the articulation of the probable cause determination in this case should have been more precise, the preliminary hearing transcript demonstrates that the circuit court found probable cause that Toliver committed attempted first-degree intentional homicide. Gorman testified that Toliver held a gun to his head, threatened to shoot him, and then shot him in the back. Toliver did not introduce any evidence of mitigating circumstances. The circuit court had the complaint and the information, both of which listed Toliver’s date of birth at the top and contained only one felony charge and a charge for possession of a dangerous weapon by a person under 18. Toliver did not object that the court’s probable cause be more specific, and the court did not discharge Toliver as would be required if it failed to find probable cause for the specific offense. Thus, the record demonstrates that when the court found probable cause to believe Toliver committed a felony, the felony to which the court referred was attempted first-degree intentional homicide, the only felony with which Toliver was charged.”

Affirmed.

2012AP393-CR State v. Toliver

Prosser, J.

Attorneys: For Appellant: Davis, Jeffrey Oxford, Milwaukee; Vogel, Matthew Charles, Milwaukee; Goldschmidt, James Eric, Milwaukee; For Respondent: Chiapete, W. Richard, Racine; Lloyd, Katherine Desmond, Madison

Wisconsin Supreme Court

Criminal
Evidence – rape shield law

The circuit court did not err in refusing to admit evidence of consensual masturbation in a trial alleging forcible sexual intercourse.

“We hold that the circuit court’s refusal to admit the proffered evidence of the prior sexual relationship was proper under Wisconsin’s rape shield law, Wis. Stat. § 972.11. Such evidence is admissible only if the following three criteria are satisfied: 1) the proffered evidence relates to sexual activities between the defendant and the complainant; 2) the evidence is material to a fact at issue in the case; and 3) the evidence is of sufficient probative value to outweigh its inflammatory and prejudicial nature. State v. DeSantis, 155 Wis. 2d 774, 785, 456 N.W.2d 600 (1990). Here, while we agree with the court of appeals that the circuit court improperly found that the proffered evidence of prior sexual conduct was not material, we nevertheless conclude the circuit court correctly excluded the evidence because Sarfraz failed to establish, under the third DeSantis prong, that the probative value of the evidence outweighed its inherent prejudice.”

Reversed and Remanded.

2012AP337-CR State v. Sarfraz

Gableman, J.

Attorneys: For Appellant: Dall’osto, Raymond M., Milwaukee; Keppel, Kathryn A., Milwaukee; Luczak, Jason D., Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; O’Brien, Daniel J., Madison

OWI

Wisconsin Supreme Court

Criminal
Motor Vehicles – OWI — stop and detention

An officer’s knocking on a car window is not a stop and detention requiring reasonable suspicion.

“Although we acknowledge that this is a close case, we conclude that a law enforcement officer’s knock on a car window does not by itself constitute a show of authority sufficient to give rise to the belief in a reasonable person that the person is not free to leave. The objective of law enforcement is to protect and serve the community. Accordingly, an officer’s interactions with people are not automatically adversarial. A court’s “seizure” inquiry into one of these interactions must examine the totality of the circumstances, seeking to identify the line between an officer’s reasonable attempt to have a consensual conversation and a more consequential attempt to detain an individual. The facts in this case do not show a level of intimidation or exercise of authority sufficient to implicate the Fourth Amendment until after Vogt rolled down his window and exposed the grounds for a seizure.”

Reversed.

2012AP1812 County of Grant v. Vogt

Prosser, J.

Attorneys: For Appellant: Scott, Jeffery J., Platteville; For Respondent: Pozorski, Anthony J., Lancaster

SEARCH AND SEIZURE

Wisconsin Supreme Court

Criminal
Search and Seizure — cell phone tracking

A defendant’s arrest after police tracked his cell phone did not violate the Fourth Amendment.

“This case presents two issues for review. First, did law enforcement agents violate Subdiaz-Osorio’s Fourth Amendment rights when they procured his cell phone location information without first obtaining a court order1 based on probable cause? Second, did Kenosha police officers violate Subdiaz-Osorio’s Fifth Amendment right to counsel when they continued to interview him after he asked how he could get an attorney?”

“The court is deeply divided on these issues as evidenced by the number of separate writings.”

“This opinion is the lead opinion. It will outline the legal conclusions of the writer, including a mandate that the decision of the court of appeals is affirmed. Justice Ann Walsh Bradley, Justice N. Patrick Crooks, Justice Patience Drake Roggensack, Justice Annette Kingsland Ziegler, and Justice Michael J. Gableman concur solely in the mandate.”

Affirmed.

2010AP3016-CR State v. Subdiaz-Osorio

Prosser, J.

Attorneys: For Appellant: Pray, John A., Madison; For Respondent: O’Brien, Daniel J., Madison; Zapf, Robert D., Kenosha

Wisconsin Supreme Court

Criminal
Search and Seizure — cell phone tracking

Where police obtained a warrant to track a cell phone, the evidence seized in a subsequent search is admissible.

“In evaluating Tate’s argument, we assume without deciding that: (1) law enforcement’s activities constituted a search within the meaning of the Fourth Amendment and Article I, Section 11; and (2) because the tracking led law enforcement to discover Tate’s location within his mother’s home, a warrant was needed. We then conclude that the search was reasonable because it was executed pursuant to an order1 that met the Fourth Amendment’s and Article I, Section 11’s requirements. See State v. Higginbotham, 162 Wis. 2d 978, 989, 471 N.W.2d 24 (1991). We also conclude that specific statutory authorization was not necessary for Milwaukee County Circuit Court Judge Jeffrey Wagner to issue the order that authorized the procedures used to track Tate’s cell phone because the order was supported by probable cause. Nonetheless, the order did comply with the spirit of Wis. Stat. § 968.12 and Wis. Stat. § 968.135 (2009-10), the search warrant and criminal subpoena statutes, which express legislative choices about procedures to employ for warrants and criminal subpoenas. Accordingly, we affirm the decision of the court of appeals.”

Affirmed.

2012AP336-CR State v. Tate

Ziegler, J.

Attorneys: For Appellant: Lichstein, Byron C., Madison; For Respondent: Kassel, Jeffrey J., Madison; Loebel, Karen A., Milwaukee

U.S. Court of Appeals for the 7th Circuit

Criminal
Sentencing – Bribery

A defendant convicted of bribery was properly sentenced based on the full amount that he received from vendors.

“We can sustain the district court’s assessment based on the second of the two alternative measures it relied on: the total amount of money paid to Whiteagle by the companies seeking to do business with the Nation. It was reasonable to infer, as the district court did, that the three companies were willing to pay Whiteagle such large sums of money specifically because of his relationship with Pettibone and his professed ability to deliver Pettibone’s vote and influence within the Ho-Chunk legislature. For example, Roscoe Holmes, a former Cash Systems employee, himself thought that the monthly salary being paid to Whiteagle was excessive compensation for a lobbyist and advisor on tribal affairs (which is what Holmes understood Whiteagle’s role to be); and the amounts paid to

Whiteagle were eye-popping relative to Cash Systems’ revenue. Moreover, Whiteagle’s insistence that his role be kept quiet (recall MCA’s laundering of his compensation through Support Consultants, and Whiteagle’s suggestions that Trinity hide the proposed consulting fees meant for Atherton and himself in other expenses) supported an inference that his compensation was not legitimately earned. It is also a fair inference, given the evidence presented at trial, that it was the bribes Whiteagle transmitted to Pettibone, rather than Whiteagle’s persuasiveness as a lobbyist, that secured Pettibone’s favorable action as a legislator: Whiteagle’s own communications with the vendors give rise to that inference. In short, it was perfectly reasonable for the court to conclude

that Whiteagle would not have been able to command his ample, even exorbitant compensation from the companies absent his corrupt relationship with Pettibone. That renders the total compensation he received a reasonable monetary measure of the value of the bribery in this case. And as there is no dispute that Whiteagle was paid in excess of $2.5 million by the three companies, the court did not err in increasing Whiteagle’s offense level by 18 levels.”

Affirmed.

12-3554 U.S. v. Whiteagle

Appeal from the United States District Court for the Western District of Wisconsin, Conley, J., Rovner, J.

U.S. Court of Appeals for the 7th Circuit

Criminal
Sentencing – Amount of loss

In calculating the amount of loss of a real estate fraud, the district court did not err in not reducing the amount by amounts the homes later sold for.

“Although it is true that the application notes to U.S.S.G. 2B1.1 instruct that loss amounts also should be offset by the collateral, the issue of loss had been waived. Had it not been waived, the district court could have considered the evidence about sale of the homes to determine the amount of offset of the collateral, but then the relevant conduct of the unconvicted counts would also have been fair game. Locke cannot argue that the court should have considered evidence to lower the amount of loss, but not to consider conduct that surely would have increased the amount of loss. That smacks of wanting to have one’s cake and eat it too.”

Affirmed.

11-3743 U.S. v. Locke

Appeal from the United States District Court for the Southern District of Indiana, McKinney, J., Rovner, J.

Wisconsin Court of Appeals

Criminal
Sentencing – modification

Dennis Lloyd Richardson appeals an order denying his motion to modify his sentence. He argues that his sentence should be modified because: (1) he is not receiving adequate medical care in the Wisconsin prison system for his Post-Traumatic Stress Disorder (PTSD); and (2) the Department of Corrections has deprived him of an opportunity to be released on parole by failing to timely offer him treatment programs required for his release. We affirm. This opinion will not be published.

2013AP1156-CR State v. Richardson

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

Attorneys: For Appellant: Meyeroff, Robert N., Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Lloyd, Katherine Desmond, Madison

SEXUALLY VIOLENT PERSONS

Wisconsin Court of Appeals

Criminal
Sexually Violent Persons — discharge date

Where a Chapter 980 petition was filed before the defendant’s maximum discharge date, it was timely filed.

“Stanley suggests that this court’s decision in Thomas forecloses our conclusion that the WIS. STAT. ch. 980 petition was timely filed. Stanley fails to acknowledge a fundamental factual difference between his case and Thomas, specifically, that the ch. 980 petition in Thomas was filed after Thomas had reached his maximum discharge date, while the ch. 980 petition in Stanley’s case was filed before Stanley reached his maximum discharge date. Our discussion in Thomas centered on the fact that Thomas had reached his maximum discharge date before the State filed the ch. 980 petition, and we explained: The petition against Thomas was filed three days after he was discharged from his criminal sentence. The State does not point to an administrative code section or statute allowing it to detain Thomas beyond his sentence’s discharge date in order to file a WIS. STAT. ch. 980 petition, and we hold that it was without authority to do so. Thomas, 238 Wis. 2d 216, ¶17. Unlike in Thomas, DOC did not detain Stanley beyond his maximum discharge date in order to allow the State to file the ch. 980 petition. Instead, the State filed the ch. 980 petition in January 2010, approximately two months before Stanley’s March 2010 maximum discharge date. Accordingly, Thomas does not foreclose our conclusion that the ch. 980 petition in this case was timely filed.”

Reversed and Remanded.

Recommended for publication in the official reports.

2013AP2477 State v. Stanley

Dist. IV, Sauk County, Taggart, J., Kloppenburg, J.

Attorneys: For Appellant: Weise, Rebecca R., Madison; Remington, Christine A., Madison; For Respondent: Breedlove, Tristan, Madison

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