Weekly Case Digests — July 28-Aug. 1, 2014

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Wisconsin Law Journal’s Case Digests — July 28-Aug. 1, 2014

CIVIL OPINIONS

Wisconsin Court of Appeals

Civil
Administrative Law — dentistry licenses

The Wisconsin Dentistry Examining Board (the Board) disciplined Jack Elder for making “a false representation on his application for a license to practice dentistry in California, which constitutes unprofessional conduct within the meaning of Wis. Stat. § 447.07(3)(b),” and for instructing “employees to change billing dates to obtain insurance payments, which constitutes repeated irregularities in billing and is unprofessional conduct within the meaning of Wis. Stat. § 447.07(3)(k)2.” The circuit court, in a thoughtful and comprehensive decision, affirmed the Board’s order, and Elder appeals. Elder contends that the Board lacked authority over, and ignored its own rules in interpreting, Elder’s statement on California’s application for a license to practice dentistry, and that the Board’s order regarding billing irregularities is unsupported by evidence in the record. We conclude that the Board acted in accord with the plain meaning of the language of Wis. Stat. § 447.07(3)(b) (2011-12) in disciplining Elder for making a false statement on the California license application, and interpreted both the application and Elder’s statement in accord with the ordinary meaning of the words used in the application and Elder’s statement. We also conclude that the Board’s order regarding billing irregularities “demonstrates a process of reasoning supported by evidence in the record.” See Daniels v. Wisconsin Chiropractic Examining Bd., 2008 WI App 59, ¶8, 309 Wis. 2d 485, 750 N.W.2d 951. Accordingly, we affirm. Not recommended for publication in the official reports.

2014AP151 Elder v. Wisconsin Dentistry Examining Board

Dist IV, La Crosse County, Bjerke, J., Kloppenburg, J.

Attorneys: For Appellant: Nowicki, Bryan K., Madison; For Respondent: Lazar, Maria S., Madison

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

Civil
False Claims Act — public disclosure

Where a qui tam plaintiff engaged in his own investigation, he is not barred from recovery by the public disclosure bar.

“Heath is not one of the ‘opportunistic plaintiffs who have no significant information to contribute of their own.’ Graham Cnty., 559 U.S. at 294. Through his own investigation and initiative, Heath established that schools were being charged prices well above the LCP — both by comparing rates between the schools and subsequently the VNS Agreement — and brought ‘genuinely new and material information’ to the government’s attention. Goldberg, 680 F.3d at 936. Accordingly, his allegations are not precluded by the public disclosure bar.”

Reversed and Remanded.

12-3383 U.S. v. Wisconsin Bell Inc.

Appeal from the United States District Court for the Eastern District of Wisconsin, Adelman, J., Kanne, J.

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

Civil
Public Health — disability benefits

Where the medical reports did not support rejection of a disability claim, it was wrong to deny the claim.

“The administrative law judge was skeptical about Misra’s report but should have been skeptical of DeWitt’s as well, not because there appears to be anything wrong with DeWitt’s analysis (or for that matter Misra’s, except poor handwriting) but because there is nothing in it on which a finding that the plaintiff is not totally disabled could be based. Both physicians diagnosed radiculopathy. Misra thought it severe; DeWitt did not indicate how severe he thought it but neither did he indicate that he thought it not severe. Although a finding of total disability could thus well be based on the reports considered together, there is enough uncertainty to warrant the administrative law judge, if he remains skeptical of the plaintiff’s claim, to order a further examination of the plaintiff by a qualified physician instructed to offer a medical opinion (if possible) on the plaintiff’s physical ability to engage in full-time work. If the judge does that, he should probably ask the physician to testify as well as to submit a written report, in order to enable clarification of his opinion through questioning by counsel and the administrative law judge. What is clear is that the rejection of the disability claim, based as that rejection was primarily on the DeWitt report, cannot be said to be supported by substantial evidence on the basis of the record compiled to date.” Reversed and Remanded.

13-3473 Hanson v. Colvin

Appeal from the United States District Court for the Eastern District of Wisconsin, Clevert, J., Posner, J.

CIVIL PROCEDURE

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

Civil
Civil Procedure — appeal

Appeals from non-final orders are dismissed.

“To conclude, the judgment in appeal 13-1113 — the order that appointed the receiver — is affirmed and the other appeals are dismissed. Appeal 13-1113, the one we’re affirming, is the only one of which we have jurisdiction because it’s the only appealable judgment; the order that appointed the receiver was the last order in the first proceeding and so completed that proceeding. The remaining four appeals were all from unappealable interlocutory orders — although the issues presented in the two interlocutory appeals in the first proceeding were within our jurisdiction to resolve be-cause an appeal from a final judgment can challenge earlier orders in the case to the extent that the judgment was based on them.”

Affirmed in part, and Dismissed in part.

12-2998, 12-3380, 13-1113, 13-2918 & 14-1266 U.S. v. Antiques Limited Partnership

Appeals from the United States District Court for the Central District of Illinois, Mihm, J., Posner, J.

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

Civil
Civil Procedure — remand

An order remanding a case to state court makes all prior orders ripe for appellate review.

“Because the remand order constitutes a final order for purposes of section 1291, it also renders the court’s prior, interlocutory orders ripe for review. See City of Waco, Tex. v. U.S. Fid. & Guar. Co., 293 U.S. 140, 143, 55 S. Ct. 6, 7 (1934) (appeals court had jurisdiction to review dismissal order that ‘in logic and fact’ preceded remand order, even if remand order itself was not subject to appellate review); Good v. Voest- Alpine Indus., Inc., 398 F.3d 918, 922 (7th Cir. 2005) (“A number of courts, including this court, have relied on Waco as a basis for reviewing district court decisions that ‘in logic and in fact’ preceded remand orders.”) (citing J. O. v. Alton Cmty. Unit Sch. Dist. 11, 909 F.2d 267, 269–71 (7th Cir. 1990)); Hyde Park Co. v. Santa Fe City Council, 226 F.3d 1207, 1209 n.1 (10th Cir. 2000) (‘Federal appeals courts have consistently held … that they have jurisdiction to review a district court order dismissing federal claims on the merits where the district court subsequently exercised its discretion under § 1367 to remand supplemental state law claims to state court.’) (collecting cases); see also, e.g., Haase v. Countrywide Home Loans, Inc., 748 F.3d 624, 628–29 (5th Cir. 2014) (remand order constituted final judgment permitting appeal of district court’s contemporaneous orders granting summary judgment in favor of defendants on federal claim and dismissing certain state claims); Porter v. Williams, 436 F.3d 917, 920 (8th Cir. 2006) (remand order constituted final order that enabled review of district court’s prior order granting partial summary judgment). Were it otherwise, any order preceding the remand, even if dispositive of a claim, would become insulated from review. See Waco, 293 U.S. at 143, 55 S. Ct. at 7; Hyde Park Co., 226 F.3d at 1209 n.1.”

Affirmed.

13-1901 Ball v. City of Indianapolis

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

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

Civil
Civil Procedure — recruitment of counsel

It was an abuse of discretion for the district court not to seek counsel for a prisoner proceeding pro se on a deliberate indifference claim.

“The court abused its discretion by failing to explain its reasoning and failing to address all the relevant arguments Dewitt raised. For example, the court characterized Dewitt as fitting within the spectrum of most pro se litigants and said it had considered his personal characteristics, but it did not identify those characteristics. However, the court did not address the challenges that Dewitt, as a blind and indigent prisoner with a tenth-grade education and no legal experience, faced in being able to investigate crucial facts and depose witnesses, doctors, and other allegedly resistant prison personnel. See Pruitt, 503 F.3d at 655 (noting the court ‘should review any information submitted in support of the request for counsel, as well as the pleadings, communications from, and any contact with the plaintiff’); see also Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013) (noting judge should have considered plaintiff’s ‘limited education, mental illness, language difficulties, and lack of access to fellow prisoners or other resources for assistance after his transfer from Stateville’). Moreover, the court’s statement that Dewitt ‘has demonstrated familiarity with his claims and the ability to present them’ does not demonstrate that the district court specifically examined Dewitt’s personal ability to litigate the case, versus the ability of the ‘jailhouse lawyer’ who Dewitt said in his motion was helping him. The analysis should be of the plaintiff’s ability to litigate his own claims, and the “fact that an inmate receives assistance from a fellow prisoner should not factor into the decision whether to recruit counsel.” Henderson, 2014 WL 2757473 at *5.”

Reversed and Remanded.

13-2930 Dewitt v. Corizon Inc.

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

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

Civil
Civil Procedure — standing

A party to a contract with a forum-selection clause has standing to sue to prevent arbitration.

“This case for standing is even stronger. A forum-selection clause with a company would be worth little if it could be avoided by merely pursuing the company’s affiliate or its employees as individuals. Our decision in American Patriot Insurance Agency, Inc. v. Mutual Risk Management, Ltd., 364 F.3d 884 (7th Cir. 2004), makes clear that the McDonalds’ obligations could not be so easily avoided. That case involved a number of affiliated insurance companies that entered into a web of contracts with the plaintiff. The plaintiff sued some but not all of the insurers. We allowed the named defendants to enforce a forum-selection clause contained in one of the contracts even though none of the defendants were signatories to that particular document. The contracts, we explained, functioned as a package. If a plaintiff could ‘defeat a forum-selection clause by its choice of provisions to sue on, of legal theories to press, and of defendants to name in the suit,’ then ‘such clauses would be empty.’ Id. at 888; see also Frietsch v. Refco, Inc., 56 F.3d 825, 827–28 (7th Cir. 1995); Hugel v. Corp. of Lloyd’s, 999 F.2d 206, 209–10 (7th Cir. 1993). That reasoning is equally applicable here, where the Bank signed the particular contract at issue but was not itself named as a respondent in the McDonalds’ arbitration demand.” Reversed and Remanded.

13-2635 J.P. Morgan Chase Bank N.A. v. McDonald

Appeal from the United States District Court for the Northern District of Illinois, Zagel, J., Hamilton, J.

Wisconsin Court of Appeals

Civil
Civil Procedure — default judgment — motions to reopen

Ryan Bechard, pro se, appeals a default judgment. At issue is whether the circuit court erroneously exercised its discretion by denying a motion to enlarge the time to answer, and by failing to reopen the default judgment. We affirm. This opinion will not be published.

2013AP2195 Charter Bank Eau Claire v. Kingbuilt.Com Inc. et al.

Dist III, Eau Claire County, Theisen, J., Per Curiam

Attorneys: For Appellant: Bechard, Ryan T., Mondovi; For Respondent: Flory, James W., Eau Claire; Bruder, Tanya Marie, Eau Claire

Wisconsin Court of Appeals

Civil
Civil Procedure – intervention

Donald Watton d/b/a Eau Claire Floor Supply-Godfrey Flooring appeals a summary judgment declaring that American Family Mutual Insurance Company has no duty to defend or indemnify the City of Eau Claire Housing Authority (“housing authority”). Watton also appeals the summary judgment dismissing his breach of contract and discrimination suit against the housing authority. Watton appears to argue the circuit court erred by: (1) granting American Family’s motion to intervene in the matter; (2) amending its scheduling order; and (3) dismissing his action against the housing authority. We reject these arguments and affirm the judgments. This opinion will not be published.

2013AP2466 Watton v. City of Eau Claire Housing Authority et al.

Dist III, Eau Claire County, Gabler, J., Per Curiam

Attorneys: For Appellant: Watton, Donald E., pro se; For Respondent: Eiden, Timothy J., Menomonie; Nick, Stephen C., Eau Claire

Wisconsin Court of Appeals

Civil
Civil Procedure — transcript costs — waiver

Ryan Krupp appeals pro se from an order of the circuit court denying his motion to waive transcript costs related to his appeal of a small claims judgment. As discussed below, we reverse and remand to the circuit court for a determination of whether Krupp is entitled to such a waiver under the two-part test established by the Wisconsin Supreme Court in State ex rel. Girouard v. Circuit Court for Jackson Cnty., 155 Wis. 2d 148, 159, 454 N.W.2d 792 (1990). This opinion will not be published.

2013AP7 Small v. Krupp

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

Attorneys: For Appellant: Krupp, Ryan, pro se; For Respondent: Small, John A., pro se

CONSTITUTIONAL LAW

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

Civil
Constitutional Law — substantive due process — Takings Clause

The Wisconsin Supreme Court’s decision in Thomas, establishing the risk-contribution theory of liability for lead pigment claims, does not violate the Due Process, Takings, or interstate-commerce Clauses of the Constitution.

“[W]e conclude that risk-contribution theory is not arbitrary and irrational, nor is it unexpected and indefensible. In developing the common-law torts of negligence and strict liability by adopting risk-contribution theory, the Wisconsin Supreme Court balanced the tortious conduct of pigment manufacturers in distributing an unreasonably dangerous product with the possibility of leaving the non-culpable plaintiff without a sufficient remedy, while recognizing that the state high court was relaxing the traditional standard of causation. Thomas, 701 N.W.2d at 558. Thomas rationally relied on the wide scope of the health dangers posed by white carbonate lead pigment. The lead poisoning caused by the pigment is not only widespread in terms of the number of individuals affected, but just as problematic, in the Wisconsin Supreme Court’s view, is the ongoing exposure to lead pigment that would continue to cause injuries in the foreseeable future. Id. (describing the hazard as ‘a public health catastrophe that is poised to linger for quite some time’). At the same time, victims of pigment poisoning face difficult problems of proof, in part because the pigment was so unreasonably dangerous that it remains a health danger even decades later.”

Reversed and Remanded.

10-3814 Gibson v. American Cyanamid Co.

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

Wisconsin Supreme Court

Civil
Constitutional Law — same-sex marriage; domestic partnerships

The domestic partnership law does not violate the constitutional ban on same-sex marriages.

“The plain language of the Amendment prohibits only a status ‘identical or substantially similar to’ marriage, and by implication it does not prohibit what is not identical or substantially similar thereto. There are important statutory distinctions in the way the state treats marriage and domestic partnerships and important differences in the lists of benefits and obligations that inhere in the two types of relationships. In light of the totality of those differences, Plaintiffs have not overcome the presumption that Chapter 770 is constitutional.”

“Our conclusion is supported by evidence from the drafting and ratification process — evidence in the drafting files that the framers of the Amendment intended specifically to allow legislation that provided a set of rights and benefits to same-sex couples. We are supported in our conclusion by evidence that voters were repeatedly told by Amendment proponents that the Amendment simply would not preclude a mechanism for legislative grants of certain rights to same-sex couples. We see no evidence that voters who approved the Amendment saw it as permitting those rights to be granted only in the kind of scheme Plaintiffs now suggest——that is, in cohabiting domestic relationships that bear no resemblance at all to marriage, with same-sex couples only as incidental beneficiaries. Of course the Amendment’s opponents put out a different message to voters, but as the court of appeals noted, it makes sense to credit the notion, when the proponents prevail in a referendum, that theirs was the message that resonated with the majority of voters. Finally, our conclusion draws additional support, although limited, from the legislature’s careful adoption of the first legislative act following the Marriage Amendment, adoption of Chapter 770 itself.”

Affirmed.

2011AP1572 Appling v. Walker

Crooks, J.

Attorneys: For Appellant: Dean, Michael D., Brookfield; Nimocks, Austin R., Scottsdale, Ariz.; Campbell, James A., Scottsdale, Ariz.; Raum, Brian W., Scottsdale, Ariz.; Dean, Michael D., Brookfield; For Respondent: Hagedorn, Brian K., Madison; Butler, Brian E., Madison; Neider, Barbara A., Madison; Clark, Christopher R., Chicago, Ill.

Wisconsin Supreme Court

Civil
Constitutional Law — photo identification

Requiring photo identification to vote does not violate the Wisconsin Constitution.

“We conclude that the legislature did not exceed its authority under Article III of the Wisconsin Constitution when it required electors to present Act 23-acceptable photo identification. Since 1859, we have held that ‘it is clearly within [the legislature’s] province to require any person offering to vote[] to furnish such proof as it deems requisite[] that he is a qualif[i]ed elector.’ Cothren v. Lean, 9 Wis. 254 (*279), 258 (*283-84) (1859). Requiring a potential voter to identify himself or herself as a qualified elector through the use of Act 23-acceptable photo identification does not impose an elector qualification in addition to those set out in Article III, Section 1 of the Wisconsin Constitution.”

“We also conclude that the requirement to present Act 23-acceptable photo identification comes within the legislature’s authority to enact laws providing for the registration of electors under Article III, Section 2 because Act 23-acceptable photo identification is the mode by which election officials verify that a potential voter is the elector listed on the registration list.”

“Finally, we conclude that plaintiff’s facial challenge fails because Act 23’s requirement to present photo identification is a reasonable regulation that could improve and modernize election procedures, safeguard voter confidence in the outcome of elections and deter voter fraud. See Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 191 (2008). Accordingly, we affirm the decision of the court of appeals.”

Affirmed as modified.

2012AP584 League of Women Voters v. Walker

Roggensack, J.

Attorneys: For Appellant: Lazar, Maria S., Madison; Kawski, Clayton Patrick, Madison; For Respondent: Pines, Lester A., Madison; Packard, Tamara, Madison; Crawford, Susan M., Madison

Wisconsin Supreme Court

Civil
Constitutional Law — collective bargaining

Act 10 is constitutional.

“First, we hold that the plaintiffs’ associational rights argument is without merit. We reject the plaintiffs’ argument that several provisions of Act 10, which delineate the rights, obligations, and procedures of collective bargaining, somehow infringe upon general employees’ constitutional right to freedom of association. No matter the limitations or ‘burdens’ a legislative enactment places on the collective bargaining process, collective bargaining remains a creation of legislative grace and not constitutional obligation. The First Amendment cannot be used as a vehicle to expand the parameters of a benefit that it does not itself protect. Accordingly, we conclude that Wis. Stat. §§ 111.70(4)(mb), 66.0506, 118.245, 111.70(1)(f), 111.70(3g), 111.70(4)(d)3 and the third sentence of § 111.70(2) do not violate the plaintiffs’ associational rights.”

“Second, we reject the plaintiffs’ equal protection claim under a rational basis standard of review. We apply rational basis review to the plaintiffs’ argument that the collective bargaining framework established by Act 10 violates the constitutional rights of general employees through disparate treatment of those who choose to collectively bargain and those who do not. Finding the plaintiffs’ argument to be unconvincing, we hold Act 10 survives the plaintiffs’ equal protection challenge under rational basis review.”

“Third, we hold the plaintiffs’ home rule amendment argument fails because Wis. Stat. § 62.623 primarily concerns a matter of statewide concern. Accordingly, we hold that Wis. Stat. § 62.623 does not violate the home rule amendment.”

“Finally, we hold that the plaintiffs’ Contract Clause claim fails. The City of Milwaukee was not contractually obligated to pay the employee share of contributions to the Milwaukee ERS. Further, even if the contributions paid by the City were a contractual right, we hold the contract was not substantially impaired by Wis. Stat. § 62.623. Therefore, we hold that the plaintiffs failed to establish beyond a reasonable doubt that Wis. Stat. § 62.623 violates the Contract Clause of the Wisconsin Constitution.”

Reversed.

2012AP2067 Madison Teachers Inc. v. Walker

Gableman, J.

Attorneys: For Appellant: Kilpatrick, Steven C., Madison; St. John, Kevin M., Madison; For Respondent: Pines, Lester A., Madison; Packard, Tamara, Madison; Crawford, Susan M., Madison

Wisconsin Supreme Court

Civil
Constitutional Law — photo identification

Requiring photo identification to vote does not violate the Wisconsin Constitution.

“Plaintiffs produced evidence at trial that, in the course of obtaining a DOT photo identification card for voting, government agencies charged them fees to obtain supporting documents for their applications. A common example is a birth certificate, which is satisfactory proof of name, date of birth and citizenship, and can cost $20 to obtain. E.g., Wis. Stat. § 69.22(1)(a) and (c). The requirement for such documents arose under Wisconsin administrative rules that implement Act 23. E.g., Wis. Admin. Code § Trans 102.15(3)(a).”

“In order to resolve the conflict between Act 23 and Wis. Admin. Code § Trans 102.15(3)(a), we interpret the administrative rules and explain that the discretion of the Division of Motor Vehicles (DMV) administrators must be exercised in a constitutionally sufficient manner. Such exercise of discretion requires the issuance of DOT photo identification cards for voting without requiring documents for which an elector must pay a fee to a government agency. See Wis. Admin. Code § Trans 102.15(3)(b) and (c) (permitting issuance of DOT photo identification cards for voting without the documents described in § Trans 102.15(3)(a)). Our conclusion employs a saving construction of § Trans 102.15(3)(b), conforms to Act 23’s mandate and relieves a severe burden on the right to vote that would otherwise exist. Because with a saving construction of § Trans 102.15(3)(b) Act 23 does not place a severe burden on the right to vote, we apply rational basis scrutiny and conclude that Act 23 is reasonably related to the State’s significant interests.”

Reversed.

2012AP1652 NAACP v. Walker

Roggensack, J.

Attorneys: For Appellant: Lazar, Maria S., Madison; Kawski, Clayton Patrick, Madison; For Respondent: Sumara, B. Michele, Milwaukee; Halstead, Aaron N., Madison; Saks, Richard, Milwaukee

CONSUMER PROTECTION

Wisconsin Court of Appeals

Civil
Consumer Protection — Wisconsin Consumer Act — unilateral changes

Joseph R. Cincotta appeals from a judgment dismissing his claims against BMO Harris Bank N.A. Cincotta argues that: (1) BMO violated the Wisconsin Consumer Act when it unilaterally changed the terms of his Reserve Loan Account and began imposing a $10 advance fee; and (2) the $10 advance fee is unconscionable. We disagree and affirm. Not recommended for publication in the official reports.

2013AP2251 Cincotta v. BMO Harris Bank NA

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

Attorneys: For Appellant: Cincotta, Joseph, Milwaukee; For Respondent: Apfeld, Michael B., Milwaukee; Kreiter, Maria L., Milwaukee

CONTRACTS

Wisconsin Court of Appeals

Civil
Contracts — breach

Todd Verdone and Julie Freimund (collectively “Verdone”), pro se, appeal a judgment dismissing their suit against Wads Woodworks, Inc. and Elizabeth Wadzinski. Verdone contends the circuit court erred by granting summary judgment in Wads’ favor on the majority of his claims; by dismissing any remaining claims after a trial to the court; and by dismissing the suit against Wadzinski, in her individual capacity, for failure to state a claim. Verdone also challenges the denial of his motions to amend the complaint and to disqualify the judge. We reject Verdone’s arguments and affirm the judgment. This opinion will not be published.

2013AP2331 Verdone et al. v. Wads Woodworks Inc. et al.

Dist III, Marathon County, Huber, J., Per Curiam

Attorneys: For Appellant: Verdone, Todd, pro se; Freimund, Julie , pro se; For Respondent: Kostka, Timothy L., Wausau

IMMIGRATION

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

Civil
Immigration — continuances

Where the IJ denied a continuance to permit an alien to show a former marriage was not a sham, the denial was an abuse of discretion.

“Had the IJ taken the Board’s advice and moved through the Hashmi checklist, the ultimate decision on the continuance would have been better informed. In particular, the Board’s list effectively instructs the IJs to take a peek at the merits of the pending application before ruling. In this case, in assessing Yang’s likelihood of success (the first factor) the judge should have looked at Yang and Li’s response to USCIS’s sham-marriage allegation. See id. Had he done so, he would have found significant and credible evidence of the legitimacy of Yang’s second marriage. He would have seen, for example, the crucial role Yang played and plays as a stepfather to Prestin’s daughter, as explained by his stepdaughter in sworn statements, and he would have found significant third-party confirmation that the marriage was real. Other aspects of Yang’s background, such as the role he plays in his family with Li, would also have illuminated the decision. See id.”

“Since neither of the reasons the Board relied on for the denial of the continuance withstands scrutiny, we are compelled to conclude that the decision stands unsupported by any reason. It thus represents an abuse of discretion, and Yang is entitled to one more chance to pursue this line of relief.” Petition Granted.

13-3849 Yang v. Holder

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

INSURANCE

Wisconsin Court of Appeals

Civil
Insurance — equitable estoppel

Owners Insurance Company appeals an order applying equitable estoppel to bar it from denying coverage for a fire loss sustained at a commercial property owned by Draga Sikanovski and Agard Enterprises, Inc. (Sikanovski). Owners asserts that its post-loss cancellation, retroactive to two days before the loss occurred, was proper because Sikanovski failed to make timely and sufficient premium payments. We agree with the circuit court that Owners’ pattern of regularly accepting insufficient payments and threatening cancellation without ever cancelling the policy, at least to Sikanovski’s knowledge, was sufficient to establish reasonable reliance. Accordingly, we affirm the circuit court’s application of equitable estoppel to bar Owners’ denial of coverage. This opinion will not be published.

2013AP1387 Owners Insurance Company v. Sikanovski et al.

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

Attorneys: For Appellant: Tobin, Timothy P., Golden Valley, Minn.; Alton, Brock P., Minneapolis; For Respondent: Sparks, Geoffrey A., Marinette; Phillips, Christina M., Chicago

Wisconsin Court of Appeals

Civil
Insurance — duty to defend

Where an insurer settled a claim for less than its policy limits, it retains a duty to defend the insured.

“[T]he policy unambiguously requires Millers First to provide a defense for Menard until Millers First has exhausted its ‘limit of liability[.]’ We agree with Menard that the only reasonable interpretation of the term ‘limit of liability’ is the $100,000 limit of liability listed on the policy’s declarations page. Consequently, under the unambiguous policy language, Millers First was required to provide a defense for Menard until it paid its $100,000 limit of liability. Although the circuit court concluded Millers First would ultimately be responsible for one-sixth of any verdict or settlement, that conclusion is extraneous to the insurance policy and does not affect the unambiguous policy language. As Menard’s counsel stated at oral argument, to conclude that the term ‘limit of liability’ ‘appl[ies] to a court determination of responsibility after application of other insurance clauses as opposed to what the policy clearly indicates in the first instance’ would be a ‘contorted’ interpretation of the policy. Where policy language is unambiguous, we simply apply it as written. Stubbe, 257 Wis. 2d 401, ¶8. Further, even if the term ‘limit of liability’ were ambiguous, we would construe it in Menard’s favor. See id.”

Affirmed in part, and Reversed in part.

Recommended for publication in the official reports.

2013AP907 Burgraff v. Menard Inc.

Dist. III, Eau Claire County, Schumacher, J., Stark, J.

Attorneys: For Appellant: Fertl, Jeffrey S., Milwaukee; Lauritch, Melissa J., Milwaukee; For Respondent: Bye, Charles M., River Falls; Heidt, Martha H., River Falls

JUVENILES

Wisconsin Court of Appeals

Civil
Juveniles – TPR — failure to assume parental responsibility

Julie G. appeals an order terminating her parental rights to her daughter, Brooklyn K. A jury found that grounds existed to terminate Julie’s parental rights to Brooklyn based on “continuing need of protection or services” (continuing CHIPS) under Wis. Stat. § 48.415(2), and “failure to assume parental responsibility” under § 48.415(6). Julie raises four main arguments in this appeal: (1) the Portage County Department of Health and Human Services (the Department) failed to prove the continuing CHIPS ground because the Department did not prove that Julie received the warnings required by Wis. Stat. § 48.356; (2) the order terminating Julie’s parental rights “based on continuing CHIPS must be vacated because many of the conditions of return were impossible for Julie to meet” due to her incarceration; (3) the jury’s finding that grounds existed to terminate Julie’s parental rights to Brooklyn based on failure to assume parental responsibility is not supported by substantial evidence; and (4) Julie is entitled to a new trial in the interest of justice because the closing argument made by the Department’s counsel “so confused the issues before the jury that the real controversy was not fully tried.” For the reasons that follow, I reject each of these arguments and affirm the circuit court’s order. This opinion will not be published.

2014AP1057 In re the termination of parental rights to Brooklyn K.

Dist IV, Portage County, Wolf, J., Kloppenburg, J.

Attorneys: For Appellant: Askins, Martha K., Madison; For Respondent: McKenna, Michael J., Stevens Point

Wisconsin Court of Appeals

Civil
Juveniles — failure to assume parental responsibility

Ralph B. appeals from an order terminating his parental rights. He contends Manitowoc County did not meet its burden at the fact-finding hearing (hereinafter “trial”) of showing that he failed to assume parental responsibility and that his counsel was ineffective in representing him at trial. We disagree on both contentions and affirm. This opinion will not be published.

2014AP140 In re the termination of parental rights to Anna M.B.

Dist II, Manitowoc County, Fox, J., Gundrum, J.

Attorneys: For Appellant: Soukup, Michael George, Milwaukee; For Respondent: O’Rourke, Ryan, Manitowoc

LABOR AND EMPLOYMENT

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

Civil
Employment – MPPAA — arbitration

Where an MPPAA dispute is in arbitration, the district court has no jurisdiction over the dispute.

“We explained in Blue Cross that a party’s request to tell an arbitrator how to act in a pending proceeding is not a request to compel arbitration, no matter what caption the litigant puts on its motion. And we added that ‘judges must not intervene in pending arbitration to direct arbitrators to resolve an issue one way rather than another. Trustmark Insurance Co. v. John Hancock Life Insurance Co., 631 F.3d 869 (7th Cir. 2011). Review comes at the beginning or the end, but not in the middle.’ 671 F.3d at 638. Once the arbitration is over, the losing side can seek judicial review. 29 U.S.C. §§ 1401(b)(2), 1451. Until then matters are in the hands of the arbitrator.”

Dismissed.

13-1566 Central States Southeast and Southwest Areas Pension Fund v. US Foods Inc.

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

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

Civil
Labor — secondary strikes

Where a union intimidated an employer’s customers, the employer is entitled to a trial.

“Stepping back from our extended discussion of the facts of this case, we must note the common theme connecting the Hotel’s claims regarding ATI, IHA and Reed Exhibitions. In none of these instances were the relevant decision-makers persuaded to join the Union’s cause. Each one testified that he or she felt worried about what would happen to their organizations if they defied the Union. Federal labor law permits unions to distribute handbills and leaflets at a secondary organization, even though that neutral entity may suffer economic loss, because those efforts depend ‘entirely on the persuasive force of the idea.’ Safeco, 447 U.S. at 619 (Stevens, J., concurring); see DeBartolo Corp., 485 U.S. at 580 (‘The loss of customers … is the result of mere persuasion.’). A neutral suffers only if customers are persuaded. Here, the Union is alleged to have skipped persuasion and instead simply interfered with the inner workings of three neutral entities. That is why this case must go to trial.”

Reversed and Remanded.

13-1938 520 South Michigan Avenue Associates v. Unite here Local 1

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

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

Civil
Employment – MPPAA — common control

Where the defendant paid $250,000 in one year to other businesses, they were under common control and are jointly and severally liable for withdrawal liability under the MPPAA.

“In 2005, the defendants paid a combined total of over $250,000 to companies who managed and operated the various business entities. Thus, the argument that Cibula was not involved in these entities is a red herring, since these significant management fees obviated the need for Cibula’s personal involvement. In fact, the management fees indicate that the activities undertaken by the defendants were continuous and regular. See, e.g., SCOFPB, 668 F.3d at 879. In addition to the management fees paid, the defendants also claimed business-related income deductions on their federal income tax returns; they applied for and were issued Federal Employer Identification Numbers; and they contracted with professionals to provide legal, managerial, and accounting services. All factors indicate that the defendants were properly characterized as businesses or trades. Id. at 878.”

Affirmed.

13-3010 & 13-3776 Central States Southeast and Southwest Areas Pension Fund v. CLP Venture LLC

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

PROFESSIONAL RESPONSIBILITY

Wisconsin Supreme Court

Civil
Professional Responsibility — public reprimand

Where attorney Amoun Vang Sayaovong committed seven acts of misconduct, a public reprimand is appropriate.

“We agree with the referee that the allegations in the OLR’s complaint have been established and that Attorney Sayaovong engaged in the seven counts of misconduct alleged in the complaint. We further agree that a public reprimand is an appropriate sanction for Attorney Sayaovong’s misconduct, and we agree that he should pay the full costs of the proceeding. Finally, we agree that Attorney Sayaovong should be ordered to make restitution of $2,000 to Y.Y.’s heirs and should be ordered to make restitution of $2,000 to L.Y.”

2013AP1485-D OLR v. Sayaovong

Per curiam.

Attorneys: For Complainant: Hendrix, Jonathan E., Madison; For Respondent: Sayaovong, Amoun Vang, Saint Paul, Minn.

Wisconsin Supreme Court

Civil
Professional Responsibility — suspension

Where attorney David V. Moss accepted fees but performed no work from numerous clients, a two-year suspension is appropriate.

“After careful review of this matter, we conclude that the nine-month suspension sought by the OLR and recommended by the referee is an insufficient sanction for Attorney Moss’s misconduct. Although Attorney Moss had a license to practice law in Wisconsin for only slightly more than three years before his license was suspended, during that short timeframe he engaged in repeated misconduct where he took fees from clients, failed to perform the work for which he was retained, failed to communicate with the clients regarding the status of their matters, and failed to return fees and client files upon request. The incident in which Attorney Moss was brandishing a handgun during a client meeting is disturbing. We believe that a two-year suspension of his license to practice law in Wisconsin is a sanction more commensurate with the misconduct at issue in this case.”

2013AP2088-D OLR v. Moss

Per Curiam.

Attorneys: For Complainant: Spoke, Julie Marie, Madison; For Respondent: Moss, David, Poulsbo, Wash.

PROPERTY

Wisconsin Court of Appeals

Civil
Property — rights of first refusal

A right of first refusal is not indefinite.

“We conclude waiver can have only one reasonable meaning under the policy. ‘Waiver’ must refer to Tidy-View’s refusal to buy the property under the terms of a third-party offer to purchase, when the transfer to a third party is ultimately accomplished pursuant to Section 1. ‘Waiver’ cannot refer to Tidy-View’s refusal to meet the terms of a third-party lease; that would make Section 2.2 internally inconsistent. The only interpretation of ‘waiver’ consistent with the entire agreement is Tidy-View’s refusal to meet the terms of a third-party purchase offer. ‘Waiver,’ in a sense, ties together the purchase and lease provisions such that the sale or transfer of the property to a third party necessarily extinguishes both rights.”

“We conclude this interpretation gives effect to the intent of the parties, which is our primary goal. See Nature Conservancy, 313 Wis. 2d 382, ¶6. As Tidy-View concedes, the ‘primary purpose of the ROFR … was to afford Tidy[-]View the pre-emptive opportunity to utilize the property in the event the Foxes choose to offer such use to others.’ When Tidy-View allows a third party to buy the property, it has necessarily waived its opportunity to use the land. And since the Foxes no longer own the property upon a completed third-party transfer, they are no longer in a position to offer its use to anyone else, including Tidy-View.”

Reversed and Remanded.

Recommended for publication in the official reports.

2013AP679 MS Real Estate Holdings, LLC, v. Donald P. Fox Family Trust

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

Attorneys: For Appellant: Hemaidan, Jordan J., Madison; Screnock, Michael P., Madison; For Respondent: Koehler, Charles D., Appleton

Wisconsin Court of Appeals

Civil
Property — foreclosure

Kuen Wong appeals an order granting U.S. Bank National Association’s motion for reconsideration. The reconsideration order modified an order dismissing U.S. Bank’s foreclosure action with prejudice, to a dismissal without prejudice. We affirm. This opinion will not be published.

2013AP2540 U.S. Bank National Association v. Wong

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

Attorneys: For Appellant: Doyle, Catherine M., Milwaukee; Toman, Nicholas S., Milwaukee; For Respondent: Wronski, Andrew J., Milwaukee; Ferguson, Kevin L., Stoughton; Blise, Rachel M., Milwaukee

Wisconsin Court of Appeals

Civil
Property — condemnation; relocation expenses

Krist Oil Company, A Michigan Corporation, appeals a summary judgment dismissing its action against the Wisconsin Department of Transportation. Krist argues the circuit court erred by dismissing its suit as untimely. We reject Krist’s arguments and affirm the judgment. This opinion will not be published.

2013AP2485 Krist Oil Co. v. State of Wisconsin Department of Transportation

Dist III, Iron County, Fox, J., Per Curiam

Attorneys: For Appellant: Polich, Roy P., Iron River, Mich.; For Respondent: Beachy, Sara K., Madison

Wisconsin Court of Appeals

Civil
Property – earnest money

4th Base LLC and Peter Papara appeal a small claims judgment entered in favor of John Mollica. Mollica, as a buyer, paid $5,000 in earnest money pursuant to a real estate sales contract. 4th Base, which is owned by Papara, was subsequently substituted as the buyer in the sales contract. Mollica brought a small claims action against 4th Base and Papara, seeking to be reimbursed for his earnest money payment. The circuit court granted judgment in favor of Mollica. We affirm. This opinion will not be published.

2014AP370 Mollica v. 4th Base LLC et al.

Dist III, Oneida County, Bloom, J., Stark, J.

Attorneys: For Appellant: Hayes, Thomas E., Milwaukee; For Respondent: Mollica, John Anthony, pro se

Wisconsin Court of Appeals

Civil
Property – reformation — mutual mistake

After a bench trial, the circuit court concluded that the original parties’ mutual mistake in the conveyance of a mortgage caused the instrument to encumber more than what they intended. The court reformed the legal description to the benefit of the mortgagors, Michael and Phyllis Kelly (“Kelly” if referring only to Michael), by stripping two parcels of land from the mortgage lien. It also granted Nationstar Mortgage LLC a judgment of foreclosure on the Kellys’ homestead property. Nationstar appeals. We affirm. This opinion will not be published.

2013AP2453 Nationstar Mortage LLC v. Kelly et al.

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

Attorneys: For Appellant: Potteiger, David M., Milwaukee; For Respondent: Blay, Ryan Anthony, Kenosha; Johnson, Theodore N., Elkhorn

Wisconsin Court of Appeals

Civil
Property – landlord-tenant — eviction — ownership

David Christian, pro se, appeals from an order of the circuit court, entered upon his son Shawn Christian’s motion for summary judgment, that declared Shawn and Shawn’s uncle, Thomas Christian, the owners of disputed property and granted Shawn a judgment of eviction and writ of assistance against David. David contends, among other things, that genuine issues of material fact precluded summary judgment on the question of ownership. We reject David’s arguments and affirm. This opinion shall not be published.

2013AP2183 Christian v. Christian

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

Attorneys: For Appellant: Christian, David, pro se; For Respondent: Hoeschen, Brad L. F., Milwaukee

SEXUALLY VIOLENTS PERSONS

Wisconsin Court of Appeals

Civil
Sexually Violent Persons — expert testimony

Stanley Edward Martin, Jr., pro se, appeals an order denying his petition for discharge under Wis. Stat. ch. 980 (2011-12). He argues: (1) that the circuit court erroneously stated that the trial judge who decided his 2010 petition for discharge had considered and reviewed the entire file before denying the 2010 discharge petition; (2) that his discharge petition should have been governed by the federal “reliability standard” for expert testimony set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); (3) that an argument the State made in its trial brief constitutes “newly discovered evidence”; and (4) that the circuit court erred in denying his challenge to State v. Allison, 2010 WI App 103, 329 Wis. 2d 129, 789 N.W.2d 120. We affirm. This opinion will not be published.

2013AP1552 In re the commitment of Stanley E. Martin Jr.

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

Attorneys: For Appellant: Martin, Stanley Edward, Jr., pro se; For Respondent: Loebel, Karen A., Milwaukee; Whelan, Maura F.J., Madison

TAX

Wisconsin Court of Appeals

Civil
Tax — property taxes — benevolent association exemption

The question here is whether a Jewish Community Center facility in Mequon qualifies as tax exempt under Wis. Stat. § 70.11(4) because the property is used for benevolent purposes within the meaning of the statute. The facility, Family Park, is owned by the Harry and Rose Samson Family Jewish Community Center, Inc. The tax years in dispute are 2008 and 2009, although the parties have apparently agreed that the resolution of this dispute will additionally control tax years 2010 to 2013. Starting in 2014, the facility is tax exempt under a provision of the property tax code not in dispute here, § 70.11(12).

Property exemptions under Wis. Stat. § 70.11(4) include exemptions for “[p]roperty owned and used exclusively by … religious, educational or benevolent associations.” JCC does not contend that Family Park is exempt under the “religious” or “educational” categories in this statute. Rather, JCC argues that its use of Family Park satisfies the “benevolent associations” category. JCC advances two alternative benevolent purpose theories. First, JCC advances an aggregate analysis approach that looks at all of JCC’s properties and their uses in Wisconsin. Second, JCC contends that, even if Family Park is considered individually, all of the activities at Family Park have a benevolent purpose. We reject both arguments, and affirm the circuit court. Not recommended for publication in the official reports.

2013AP2797 Harry and Rose Samson Family Jewish Community Center Inc. v. City of Mequon et al.

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

Attorneys: For Appellant: Gordon, Robert L., Milwaukee; Marcuvitz, Alan, Milwaukee; Boerke, Nicholas J., Milwaukee; For Respondent: DeStefanis, John L., Mequon

TORTS

Wisconsin Supreme Court

Civil
Torts — governmental immunity

Governmental immunity does not apply when someone is injured because an officer proceeds against a traffic signal as authorized by Wis. Stat. § 346.03(2)(b) (2011-12), if the officer slowed the vehicle and activated lights and sirens as required by § 346.03(3) but nonetheless arguably violated the duty to operate the vehicle “with due regard under the circumstances” as required by § 346.03(5).

“Reading compliance with Wis. Stat. § 346.03(2)(b) and § 346.03(3) as meeting the due regard standard, as the defendants urge, ignores the language of § 346.03(5). Subsection (5) explicitly states that the duty of due regard exists notwithstanding the other exemptions or privileges in § 346.03: ‘The exemptions granted . . . by [§ 346.03] do not relieve such operator from the duty to drive or ride with due regard under the circumstances for the safety of all persons . . . .’ The text of § 346.03(5) envisions ‘due regard’ as a standard of care existing independently of the exemptions granted by § 346.03.”

“A holding adopting the police officer’s interpretation that compliance with the exemptions or privileges authorized in § 346.03 meets the duty of ‘due regard’ under § 346.03(5) would treat the language of (5) as surplusage. Such a holding would do exactly what the statute forbids, namely it would relieve the operator of this duty. We decline to do so.”

“To be true to Wis. Stat. § 893.80(4) and (5) and § 346.03(5), and the rules of statutory interpretation, we conclude that the police officer in the instant case who is alleged to have breached the duty of ‘due regard’ under § 346.03(5) is not immune from suit under § 893.80(4).”

Reversed and Remanded.

2012AP2499 Legue v. City of Racine

Abrahamson, C.J.

Attorneys: For Appellant: Knurr, Timothy S., Milwaukee; For Respondent: Devine, Thomas M., Racine

Wisconsin Court of Appeals

Civil
Torts — governmental immunity

Amber Malean appeals a summary judgment dismissing her negligence claim against Mike Smith, the grounds supervisor for the University of Wisconsin — Stout. We conclude the circuit court properly determined Smith was protected by public officer immunity. Accordingly, we affirm. This opinion will not be published.

2013AP2442 Malean et al. v. Smith et al.

Dist III, Dunn County, Stewart, J., Per Curiam

Attorneys: For Appellant: Parsons, Robert A., River Falls; For Respondent: Gendreau, Chad R., Madison

Wisconsin Court of Appeals

Civil
Torts — dog injury statute — double damages

Ann Schroeder was attacked by a pack of dachshunds belonging to Jeffrey and Jody Kistner. Despite evidence of two previous attacks involving the same pack of dachshunds, the trial court concluded Schroeder was not entitled to double damages under the dog injury statute, Wis. Stat. § 174.02(1)(b). The trial court also denied Schroeder’s motion for additur following a jury verdict awarding her nothing for non-economic damages, such as pain and suffering.

We reverse in part and conclude Schroeder was entitled to double damages. Under the circumstances of the present case, the availability of double damages under Wis. Stat. § 174.02(1)(b) is not contingent upon proof that the specific dog or dogs that caused Schroeder’s injuries also caused previous injuries. It is sufficient that the dogs were part of the same group that had participated in previous attacks. Accordingly, we remand so that the trial court may calculate the appropriate damages amount.

However, we affirm the trial court’s decision on Schroeder’s additur motion. Schroeder reasons that because she suffered economic damages, she must necessarily be entitled to non-economic damages. As we explain, this is contrary to Wisconsin law. Further, Schroeder has failed to establish the jury’s failure to award non-economic damages shocks the judicial conscience. Not recommended for publication in the official reports.

2013AP2165 Schroeder v. American Family Mutual Insurance Co. et al.

Dist III, Bayfield County, Anderson, J., Mangerson, J.

Attorneys: For Appellant: Lein, Matthew Curtiss, Hayward; For Respondent: Misfeldt, Thomas J., Eau Claire; Steffes, Ryan, Eau Claire

CRIMINAL OPINIONS

Wisconsin Court of Appeals

Criminal
Theft — sufficiency of the evidence

Terrence L. Johnson, pro se, appeals from a judgment of conviction, entered upon a jury’s verdicts, on 13 various counts. Johnson also appeals from an order denying his motion for postconviction relief. On appeal, Johnson claims there was insufficient evidence supporting seven of his convictions and that the State lacked jurisdiction over five other offenses. We reject these arguments and affirm the judgment and order. This opinion shall not be published.

2013AP1429-CR State v. Johnson

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

Attorneys: For Appellant: Johnson, Terrence L., pro se; For Respondent: Loebel, Karen A., Milwaukee; Wellman, Sally L., Madison; Weber, Gregory M., Madison

Wisconsin Court of Appeals

Criminal
Failure to Comply — sufficiency of the evidence

Debra Delong appeals a judgment of conviction, entered upon a jury verdict, for failure to comply with an officer’s attempt to take her into custody, a Class I felony proscribed by Wis. Stat. § 946.415. Her sole argument on appeal is that the conviction was not supported by sufficient evidence. We affirm. This opinion will not be published.

2013AP1955-CR State v. Delong

Dist III, Lincoln County, Tlusty, J., Per Curiam

Attorneys: For Appellant: Phillips, Steven D., Madison; For Respondent: Dunphy, Donald J., Merrill; Winter, Tiffany M., Madison

Wisconsin Court of Appeals

Criminal
Extended Supervision — revocation

Andrew Obriecht appeals the circuit court’s order that denied Obriecht’s petition for certiorari review of the decision of the Division of Hearings and Appeals to revoke Obriecht’s supervision in multiple criminal cases. Obriecht contends that: (1) he was denied due process at the revocation hearing; (2) his rules of supervision were vague and overbroad; (3) DOC lacked jurisdiction to revoke his supervision as to some of his convictions; and (4) the evidence was insufficient to support revocation. For the reasons that follow, we affirm. This opinion will not be published.

2012AP2821 State ex rel. Obriecht v. Schwarz

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

Attorneys: For Appellant: Obriecht, Andrew M., Plymouth; For Respondent: Russomanno, Anthony, Madison

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

Criminal
Habeas Corpus — ineffective assistance

Although a jury instruction in a state court trial was erroneous, it was not unreasonable for the court to find the failure to object to it to be not prejudicial.

“Applying this highly deferential standard, we do not find that the Indiana Supreme Court unreasonably applied clearly established federal law; rather, we find that the Indiana Supreme Court reasonably concluded that Carter was not sufficiently prejudiced by Choate’s failure to challenge the attempted murder jury instruction to warrant relief. The Indiana Supreme Court correctly acknowledged the Strickland standard as controlling and applied it, explaining that it would ‘assess[] the likelihood of prejudice’ to Carter. It acknowledged that the language of the attempted murder jury instruction was imperfect, but found that it did not sufficiently prejudice Carter to warrant relief. The court reasoned that the jury instructions as a whole, coupled with the evidence presented at trial as well as statements made by the prosecution and defense during closing arguments, made clear to the jury that it was required to find that Carter intended to kill Stegemiller in order to convict him of attempted murder. Therefore, the court determined that the result of Carter’s appeal would have been the same absent Choate’s failure to challenge the jury instruction, defeating his ineffective assistance of counsel claim.”

Affirmed.

13-2466 Carter v. Butts

Appeal from the United States District Court for the Southern District of Indiana, Barker, J., Bauer, J.

Wisconsin Supreme Court

Criminal
NGI — jury instructions

The circuit court did not err in instructing the jury that “[a] temporary mental state which is brought into existence by the voluntary taking of drugs or alcohol does not constitute a mental defect.”

“We conclude that the circuit court’s instruction to the jury was an accurate statement of the law. This court has never determined that consumption of prescription medication can give rise to a mental defect that would sustain an insanity defense. We decline to craft a new affirmative defense that would incorporate elements of the involuntary intoxication and insanity defenses simply because Anderson cannot meet the requirements of the involuntary intoxication defense statute. Moreover, even if the circuit court had instructed the jury that the consumption of ‘drugs and alcohol’ cannot create a mental defect, Anderson would fare no better, because it is established law that one who mixes prescription medication with alcohol is responsible for any resulting mental state. Accordingly, we reverse the decision of the court of appeals.”

Reversed.

2011AP1467-CR State v. Anderson

Gableman, J.

Attorneys: For Appellant: Schmaal, William E., Madison; For Respondent: Wellman, Sally L., Madison; O’Leary, David J., Janesville

Wisconsin Court of Appeals

Criminal
Robbery — sufficiency of the evidence

Michael Gregory Scott appeals from a judgment of conviction, entered upon a jury’s verdict, on one count of robbery with the threat of force. Scott argues there was insufficient evidence to show he acted forcibly, one of the four elements of his offense. We disagree and affirm the judgment. This opinion shall not be published.

2011AP1960-CR State v. Scott

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

Attorneys: For Appellant: Haskell, Dustin C., Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Wren, Christopher G., Madison

CRIMINAL PROCEDURE

Wisconsin Court of Appeals

Criminal
Criminal Procedure — ineffective assistance

Thomas Fountain appeals a judgment of conviction for possession of more than forty grams of cocaine with intent to deliver. Fountain argues his trial counsel was ineffective for failing to present an expert witness and for not requesting a lesser-included-offense instruction. We reject Fountain’s arguments and affirm. This opinion will not be published.

2013AP1927-CR State v. Thomas Scott Fountain

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

Attorneys: For Appellant: Meier, Rick B., Kewanee; For Respondent: Brey, Allen R., Marinette; Sanders, Michael C., Madison

Wisconsin Court of Appeals

Criminal
Criminal Procedure — ineffective assistance

John W. Kaczmarek appeals a judgment of conviction for misdemeanor bail jumping and an order of the circuit court denying his motion for postconviction relief on the grounds that he received ineffective assistance of counsel in multiple respects from his counsel in connection with his bail-jumping trial. I conclude that, in each instance, Kaczmarek fails to show that the conduct of his counsel either constituted deficient performance or, assuming deficient performance, resulted in prejudice. Thus, I affirm the judgment and the decision denying Kaczmarek’s motion for postconviction relief. This opinion will not be published.

2013AP1745-CR State v. Kaczmarek

Dist IV, Rock County, Daley, J., Blanchard, P.J.

Attorneys: For Appellant: Aquino, Thomas Brady, Madison; For Respondent: Weber, Gregory M., Madison; Dirks, Scott H., Janesville

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

Criminal
Criminal Procedure — self-representation

Where a defendant was not permitted to represent himself until after a suppression hearing was held, over his objection, he is entitled to a new suppression hearing.

“[O]ur defendant is not entitled to more than a re-do of the suppression hearing, this time representing himself. Allowed to do that, he obtains everything to which he’s entitled. This is not a case in which a court rules (improperly) that a defendant wasn’t harmed by the denial of a fundamental procedural right because the denial did not affect the outcome; it is a case in which we are ordering that a procedural right be restored — and once that is done the defendant has no basis for complaining if the exercise of that right turns out to be of no benefit to him. If after a suppression hearing in which he again chooses and this time is per-mitted to represent himself the district court denies the motion to suppress, there will be no basis for a new trial. For the defendant — who was permitted to represent himself at trial — will have been granted all the procedural rights to which he was entitled.”

Vacated.

13-1976 U.S. v. Lee

Appeal from the United States District Court for the Eastern District of Wisconsin, Clevert, J., Posner, J.

Wisconsin Court of Appeals

Criminal
Criminal Procedure — juror bias

Edward Wolfe appeals a judgment of conviction for two counts of sexual intercourse with a child over 16 and one count of repeated sexual assault of the same child. He also appeals an order denying his motion for postconviction relief. Wolfe argues his trial counsel was ineffective for failing to move to strike a juror who was objectively biased. We agree with the circuit court that the juror was not objectively biased, and therefore affirm. This opinion will not be published.

2013AP2687-CR State v. Wolfe

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

Attorneys: For Appellant: York, Katie R., Madison; For Respondent: Balistreri, Thomas J., Madison; Uttke, Ralph M., Antigo

Wisconsin Court of Appeals

Criminal
Criminal Procedure – ineffective assistance

Michael O’Brien appeals an order denying his “Petition for Writ of Habeas Corpus Pursuant to Wis. Stat. § 974.06,” in which he alleged ineffective assistance of counsel. O’Brien contends his no-contest pleas to numerous offenses were “uninformed” because his trial attorney spent only a half hour with him from the time of his arrest to the plea hearing; counsel failed to communicate with O’Brien about matters learned in discovery; and based on information O’Brien discovered after sentencing, he believes he had potential issues relating to the validity of traffic stops. Based on counsel’s denials of O’Brien’s allegations, the circuit court rejected O’Brien’s claims. We affirm the order. This opinion will not be published.

2013AP2380, 2013AP2381, 2013AP2382, 2013AP2383 State v. O’Brien

Dist III, Shawano County, Habeck, J., Per Curiam

Attorneys: For Appellant: Schenk, Aaron, Green Bay; For Respondent: Parker, Gregory A., Shawano; Probst, Robert, Madison

Wisconsin Court of Appeals

Criminal
Criminal Procedure –withdrawal of plea

Devon Adams appeals a judgment of conviction entered upon his guilty plea to one count of second-degree recklessly endangering safety. He also appeals a postconviction order that denied his motions to withdraw his guilty plea and to modify his sentence. Because Adams does not show that plea withdrawal is warranted or that the circuit court erroneously exercised its sentencing discretion when it imposed a nine-year term of imprisonment, we affirm. This opinion will not be published.

2013AP2200-CR State v. Adams

Dist I, Milwaukee County, Kahn, Watts, JJ., Per Curiam

Attorneys: For Appellant: Betthauser, Charles David, Black River Falls; For Respondent: Loebel, Karen A., Milwaukee; O’Neil, Aaron R., Madison

Wisconsin Court of Appeals

Criminal
Criminal Procedure – ineffective counsel – evidentiary hearing

Kenneth L. Hare appeals the judgment convicting him of armed robbery with use of force and first-degree recklessly endangering safety and from the order denying his postconviction motion. Hare argues that: (1) his trial counsel was ineffective for failing to request that the jury be instructed on the law of self-defense; and (2) the trial court erred in ruling that he was not entitled to an evidentiary hearing on his claim that trial counsel was ineffective for failing to request that the jury be instructed on the law of theft. We reject his arguments and affirm. Not recommended for publication in the official reports.

2013AP1675-CR State v. Hare

Dist I, Milwaukee County, Cimpl, Guolee, JJ., Brennan, J.

Attorneys: For Appellant: Flanagan, Patrick, Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; O’Neil, Aaron R., Madison

Wisconsin Court of Appeals

Criminal
Criminal Procedure — invited error doctrine

Larry London appeals a judgment convicting him of burglary and attempted armed robbery with use of force, both as a repeat offender. He also appeals an order denying his motion to vacate the portion of the sentences that are based on the repeater enhancer. He contends the sentences should be commuted under Wis. Stat. § 973.13 (2011-12) because the charging documents did not identify the specific offense that was the basis for the repeater enhancer, and the State failed to prove that London committed a felony within the previous five years excluding the time he spent in confinement. We conclude the invited error doctrine precludes London from seeking relief under § 973.13. This opinion will not be published.

2013AP1614-CR State v. London

Dist III, Marathon County, Huber, J., Per Curiam

Attorneys: For Appellant: O’Connell, Timothy T., Green Bay; For Respondent: Heimerman, Kenneth J., Wausau; Moeller, Marguerite M., Madison

Wisconsin Court of Appeals

Criminal
Criminal Procedure — juror bias

Gerald Blasczyk appeals a judgment of conviction, entered upon a jury verdict, for operating while intoxicated with 10 or more previous offenses. Blasczyk advances several arguments on appeal, among them that he is entitled to a new trial because the primary witness in his defense verbally and physically confronted a juror outside the courtroom during a recess before deliberations commenced. We agree with Blasczyk that the encounter caused prejudicial extraneous information to be brought to the jury’s attention. We therefore reverse and remand for a new trial on the OWI charge. This opinion will not be published.

2013AP2061-CR State v. Blasczyk

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

WI Court of Appeals Digest, Criminal Digest, Motor Vehicles Digest

Attorneys: For Appellant: Miller, Steven L., River Falls; For Respondent: Moeller, Marguerite M., Madison; Schneider, Carrie A., Appleton

Wisconsin Court of Appeals

Criminal
Criminal Procedure — judicial bias

Demonta Hambright appeals a judgment convicting him of two counts of intimidating a witness, his wife. The jury acquitted him of three other counts, including sexual assault of his wife. Hambright contends the circuit court’s comments at sentencing exhibited bias that should have resulted in the judge recusing herself, and the court relied on an improper factor during sentencing by refusing to accept the jury’s acquittal on the sexual assault charge. We reject those arguments and affirm the judgment. This opinion will not be published.

2013AP2016-CR State v. Hambright

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

Attorneys: For Appellant: Tauscheck, George, Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Sanders, Michael C., Madison

Wisconsin Court of Appeals

Criminal
Criminal Procedure — judgment of conviction –amendment

John Robert Chic, pro se, appeals an order denying his motion to declare void an amended judgment of conviction entered July 14, 2011, and to expunge it from his record. He also appeals an order denying his motion for reconsideration. Chic argues that the circuit court should have granted his motion because the clerk of circuit court did not have authority to amend the original judgment of conviction without first obtaining the permission of the circuit court. We affirm. This opinion will not be published.

2013AP1889-CR State v. Chic

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

Attorneys: For Appellant: Chic, John Robert, pro se; For Respondent: Balistreri, Thomas J., Madison; Loebel, Karen A., Milwaukee

EVIDENCE

Wisconsin Court of Appeals

Criminal
Evidence — proclivity evidence – notice — prior false allegations

Ricky H. Jones was charged with two counts of first-degree sexual assault of a child under thirteen years of age for separate incidents involving C.B. and M.W. Jones went to trial and was convicted by a jury. Prior to trial, the court denied Jones’s motion to introduce evidence that C.B. and M.W. had made prior untruthful allegations of sexual assault against other men. The court also, midtrial, excluded Jones’s proffered Richard A.P. evidence as Jones’s trial counsel had not provided notice in accordance with the State’s discovery demand. Jones now appeals these rulings as well as the court’s denial of his postconviction motion for a new trial, brought on the basis that his trial counsel was ineffective for failing to provide notice of the Richard A.P. evidence and for eliciting testimony that he was under investigation for a “different” sexual assault. We reject Jones’s arguments and affirm. Not recommended for publication in the official reports.

2013AP1731-CR State v. Jones

Dist II, Manitowoc County, Fox, J., Reilly, J.

Attorneys: For Appellant: Bauer, Erica L., Appleton; For Respondent: LaBre, Jacalyn C., Manitowoc; Sanders, Michael C., Madison

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

Criminal
Evidence — propensity evidence

In a fraud prosecution, it was not an abuse of discretion to admit evidence that the defendant converted $1.3 million of withdrawals into cash.

“First, the evidence was used for a purpose other than propensity; the government cross-examined Williams to call into question the accuracy of his analysis. Williams admitted that his analysis did not include the net $600,000 of withdrawals from the Equipment Source checking account. He also admitted that writing checks to cash or a currency exchange was an unusual business practice. The government questioned Williams to prove Marr’s intent to commit wire fraud, not to show that Marr committed tax fraud in the past and had done so again on this occasion.”

“Second, Williams’ testimony about the Equipment Source checks being converted to cash was extremely relevant. The government alleged that Marr used the Equipment Source bank accounts at Palos Bank to evade $328,881.89 in chargebacks and that the scheme took place from November 2001 to May 2003. Williams testified about the same Equipment Source bank accounts and described transactions that occurred at the same time as Marr’s wire fraud.”

Affirmed.

13-2204 U.S. v. Marr

Appeal from the United States District Court for the Northern District of Illinois, Castillo, J., Bauer, J.

OWI

Wisconsin Court of Appeals

Criminal
Motor Vehicles – OWI – ineffective assistance

Joseph R. Jackowski appeals from a judgment of conviction for operating while intoxicated (fifth offense), and from an order denying his postconviction motion for a new trial based on the alleged ineffective assistance of trial counsel. Jackowski argues that the trial court erroneously exercised its discretion when it denied his motion without a hearing. We affirm. This opinion will not be published.

2013AP2054-CR State v. Jackowski

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

Attorneys: For Appellant: McClune, Scott Ryan, Milwaukee; Barbara, Megan, Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Sanders, Michael C., Madison

Wisconsin Court of Appeals

Criminal
Motor Vehicles – OWI – sufficiency of the evidence

Richard S. Rohde appeals from an amended judgment of conviction for causing great bodily harm by the intoxicated use of a motor vehicle and for operating a motor vehicle while intoxicated, causing injury, second or subsequent offense. Rohde challenges the sufficiency of the evidence to convict him and argues that the trial court, as fact-finder, failed to consider his affirmative defense. Alternatively, he seeks a new trial in the interest of justice arguing that the real controversy was not fully tried. We affirm. This opinion will not be published.

2013AP1700-CR State v. Rohde

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

Attorneys: For Appellant: Loeb, Basil M., Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; O’Brien, Daniel J., Madison

SEARCH AND SEIZURE

Wisconsin Court of Appeals

Criminal
Search and Seizure — Franks motions

Lester Gilmore appeals his judgment of conviction following a jury trial, as well as an order denying his motion for postconviction relief. He contends the circuit court erred when it determined his trial counsel was not ineffective in his attempt to suppress under Franks v. Delaware, 438 U.S. 154 (1978), evidence obtained through a search warrant. The circuit court did not err; we affirm. Not recommended for publication in the official reports.

2013AP2186-CR State v. Gilmore

Dist II, Kenosha County, Rossell, J., Gundrum, J.

Attorneys: For Appellant: Pinix, Matthew S., Milwaukee; For Respondent: Zapf, Robert D., Kenosha; Tarver, Sandra L., Madison

Wisconsin Court of Appeals

Criminal
Search and Seizure — warrantless searches

Police responding to a hit-and-run accident forced their way into and searched Jesse Schwartz’s residence without a warrant, resulting in four drug charges against Schwartz. The circuit court suppressed the drug evidence, finding that police did not have a valid reason for searching Schwartz’s residence. We affirm. Neither the community caretaker nor the protective sweep exceptions to the Fourth Amendment’s warrant requirement justified the search as police did not have a reasonable basis to believe that another individual was in the residence at the time of the search. As this conclusion is dispositive of the issue presented in this appeal, i.e., suppression of the evidence for the drug charges, we do not reach the question of whether the police were justified to enter Schwartz’s residence to check on his well-being under their community caretaker function. Not recommended for publication in the official reports.

2013AP1868-CR State v. Schwartz

Dist II, Sheboygan County, Bolgert, J., Reilly, J.

Attorneys: For Appellant: Whelan, Maura F.J., Madison; Haberman, Nathan F., Sheboygan; For Respondent: Limbeck, George, Sheboygan

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

Criminal
Search and Seizure — exclusionary rule

Although a search was unlawful, the exclusionary rule does not apply where binding precedent authorized the search at the time it was conducted.

“[T]his case qualifies for the “binding appellate precedent” exception, because this case is exactly like Brock in all important respects. First, as in Brock, police had a trained drug dog conduct a brief sniff at the door to a living space. See Brock, 417 F.3d at 693. The fact that one dog sniff occurred outside the front door to Gutierrez’s home, and the other occurred outside the door to Brock’s room, is immaterial. In both cases, police were lawfully pre-sent at the time of the search: in Brock, a cohabitant gave consent to a search of the common areas of the residence, see United States v. Matlock, 415 U.S. 164, 171 (1974); and in Gutierrez’s case, the police walked up to the front door and knocked, which is lawful, see Jardines, 133 S. Ct. at 1416; King, 131 S. Ct. at 1862. In both cases, the officers then brought out their drug dog—now a constitutional violation under Jardines, but lawful at the time given Caballes and Place. In other words, at the time of both sniffs, there was no legal distinction between a ‘knock-and-talk’ and a ‘knock-and-sniff.’ Furthermore, in both Brock and Gutierrez’s cases, the police sought and obtained a warrant based in part on the positive dog alert. See Brock, 417 F.3d at 694. And in neither case did the police conduct a search until they were armed with a warrant. See id. This case and Brock are on all fours.”

Affirmed.

14-1159 U.S. v. Gutierrez

Appeal from the United States District Court for the Southern District of Indiana, Pratt, J., Flaum, J.

Wisconsin Court of Appeals

Criminal
Search and Seizure — warrantless searches — probable cause — exigent circumstances

Paul Bach appeals a judgment convicting him of burglary. He entered a guilty plea after the circuit court denied his motion to suppress evidence seized in a warrantless search of his motel room. He contends the deputy lacked probable cause and exigent circumstances to justify the warrantless search. We affirm the judgment. This opinion will not be published.

2013AP2137-CR State v. Bach

Dist III, Polk County, Galewyrick, J., Per Curiam

Attorneys: For Appellant: Schertz, Dennis, Hudson; For Respondent: Perlman, David H., Madison; Steffen, Daniel P., Balsam Lake

Wisconsin Court of Appeals

Criminal
Search and Seizure — plain view

Louis Manuel Hernandez appeals a judgment convicting him of possession of heroin with intent to deliver. He argues: (1) that the police did not have grounds to conduct an investigatory stop; and (2) that the “plain view” exception to the warrant requirement did not allow the police to seize the heroin they found in his car. We affirm. This opinion will not be published.

2013AP1909-CR State v. Hernandez

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

Attorneys: For Appellant: Kachelski, Angela Conrad, Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Larson, Sara Lynn, Madison

SENTENCING

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

Criminal
Sentencing — crack cocaine

Where the district judge equated joint activity to conspiracy in denying a motion for sentence reduction, the denial must be reversed.

“In effect the judge and the government equated ‘jointly undertaken criminal activity’ to conspiracy, and that is incorrect. ‘Conspiracy liability, as defined in Pinkerton v. United States, 328 U.S. 640, 646–48 (1946), is generally much broader than jointly undertaken criminal activity under § 1B1.3.’ United States v. Soto-Piedra, supra, 525 F.3d at 531. By agreeing with others to sell crack the defendant joined a conspiracy. And he may have agreed to help his co-conspirators achieve a goal of selling an amount of crack that would exceed 8.4 kilograms, and if so the sales of that amount (in excess of the amount he sold personally, which was the basis of his offense of conviction) would be relevant conduct of his because they would be the fruit of a criminal activity that he had jointly undertaken with his co-conspirators. But in determining the defendant’s relevant conduct the district judge did not rely on evidence that the defendant had agreed to help his co-conspirators sell crack; nor does the government in its brief rely on such evidence. The government and the district judge stop with foreseeability, and that’s not enough.”

Reversed and Remanded.

14-1158 U.S. v. Davison

Appeal from the United States District Court for the Northern District of Indiana, Moody, J., Posner, J.

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

Criminal
Sentencing — child pornography

Even though the Sentencing Commission has asked Congress to lower the guideline sentence under U.S.S.G. 2G2.2 for child pornography, the district court did not err in applying the guideline.

“The Eleventh Circuit recently addressed and rejected a very similar argument from a defendant challenging the continued validity of section 2G2.2 in light of the Report: We agree with the government that the Commission’s 2013 report does not render the non-production child pornography guidelines in § 2G2.2 invalid or illegitimate. Rather, the Commission recommends that Congress enact legislation providing the Commission with express authority to amend [§ 2G2.2]” The publication of the 2013 report does not change the statutory sentencing scheme, the applicable sentencing guidelines, or the binding precedent about § 2G2.2 in this Circuit. United States v. Cubero, — F.3d —, —, 2014 WL 2595781, *9 (11th Cir. June 11, 2014). In Cubero, the court commented that, although the district court was certainly free to consider the Report in choosing the ultimate sentence, the Report did nothing to invalidate section 2G2.2. Nor did the court’s use of section 2G2.2 render Cubero’s sentence procedurally or substantively unreasonable because the absence of empirical evidence is not an independent ground that compels the invalidation of a guideline. Cubero, 2014 WL at *9. See also United States v. Grigsby, 749 F.3d 908, 910–12 (10th Cir. 2014), petition for cert. filed, — U.S.L.W. — (U.S. July 10, 2014) (No. 14- 3146) (rejecting a similar categorical challenge to guideline 2G2.1 based on the Report). We are inclined to agree with our sister circuits. Congress and the Commission are responsible for altering the guidelines, and the absence of an empirical basis does not render a guidelines provision per se unreasonable or irrational. Grigsby, 749 F.3d at 911 (citing United States v. Miller, 665 F.3d 114, 121 (5th Cir. 2011), cert. denied, 132 S. Ct. 2773 (2012)). The district court was free to consider the Report but using the guideline in its current form did not render McLaughlin’s sentence substantively unreasonable. ‘[D]istrict courts must treat the Guidelines as the starting point and the initial benchmark.’ Kimbrough v. United States, 552 U.S. 85, 108 (2007). Contrary to McLaughlin’s contention, then, the district court was obligated to consider the properly calculated guidelines sentence in determining the appropriate sentence. The court was clearly aware that it was free to reject the guidelines sentence; the court in fact sentenced McLaughlin twenty-one months below the low end of the guidelines range. In short, there is nothing substantively or procedurally amiss with McLaughlin’s sentence. Rita, 551 U.S. at 341–49; Anobah, 734 F.3d at 736; Mykytiuk, 415 F.3d at 608 (sentences that are within the properly calculated guidelines range are entitled to a rebuttable presumption of reasonableness).” Affirmed.

12-3255 U.S. v. McLaughlin

Appeal from the United States District Court for the Northern District of Illinois, Gúzman, J., Rovner, J.

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

Criminal
Sentencing — probation revocation

Where the judge said at the original sentencing hearing what the sentence would be if the defendant violated his probation, and the judge imposed that sentence after revocation, a nonfrivolous argument for appeal is presented.

“We must, it is true, be careful when a judge has made a spontaneous sentencing statement not to impose an unrealistically literal interpretation on his words. The judge in this case had treated the defendant leniently in sentencing him to 24 months of probation for a crime that carries a maximum sentence of four years. The defendant thumbed his nose at the lenient sentence by forthwith flagrantly violating conditions of probation, especially regarding use of illegal drugs, suggesting a likelihood of his re-engaging in the distribution of such drugs. It was not just ‘the comments that the Court made at the time of sentencing’ that moved the judge to impose the sentence he did but those comments ‘together with the continued violations.’ We have no reason to think it likely, therefore, that if reminded that it is improper for a sentencing judge to commit himself to the imposition of a specific sentence should he revoke the defendant’s probation (or his supervised release, when a prison sentence is imposed rather than probation) the district judge would reduce the 24-month sentence that he imposed on the defendant. But we can grant an Anders motion, and thus both allow the appellant’s lawyer to withdraw from the case and dismiss the appeal, only if there is no nonfrivolous ground of appeal. United States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997); United States v. Wagner, 103 F.3d 551, 553 (7th Cir. 1996). And we cannot say that an argument that a sentence for violating probation is improper if it is fixed at the time the defendant is sentenced to probation is a frivolous argument. Nor can we be certain that a judge’s apparent commitment in advance to impose a specific sentence for violating probation has no effect on the length of the sentence that he imposes.”

Motion Denied.

13-1902 U.S. v. Tatum

Appeal from the United States District Court for the Eastern District of Wisconsin, Stadtmueller, J., Posner J.