Weekly Case Digests — Nov. 17-21, 2014

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Wisconsin Law Journal’s Case Digests — Nov. 17-21, 2014

CIVIL OPINIONS

CIVIL PROCEDURE

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

Civil Procedure
Class actions

A class action settlement that provides no benefit to plaintiffs is reversed, and a “kicker clause,” providing that any reductions in the proposed settlement inure to the defendant, is presumptively invalid.

“Our final concern is the reversion, or kicker, clause in the settlement agreement. This is the clause that provides that if the judge reduces the amount of fees that the proposed settlement awards to class counsel, the savings shall enure not to the class but to the defendant. This is a gimmick for defeating objectors. If the class cannot benefit from the reduction in the award of attorneys’ fees, then the objector, as a member of the class, would not have standing to object, for he would have no stake in the outcome of the dispute. The simple and obvious way for the judge to correct an excessive attorney’s fee for a class action lawyer is ‘to increase the share of the settlement received by the class, at the expense of class counsel.’ Redman v. RadioShack Corp., supra, 768 F.3d at 632. This route is barred unless the judge invalidates the kicker clause.”

“Class counsel claim that often they negotiate for the benefits to the members of the class first, selflessly leaving for later any consideration of or negotiation for their award of attorneys’ fees. That claim is not realistic. For we know that an economically rational defendant will be indifferent to the allocation of dollars between class members and class counsel.

Caring only about his total liability, the defendant will not agree to class benefits so generous that when added to a reasonable attorneys’ fee award for class counsel they will render the total cost of settlement unacceptable to the defendant. We invited class counsel to explain how, therefore, negotiating first for class benefits could actually benefit a class, and were left without an answer. Neither can we think of a justification for a kicker clause; at the very least there should be a strong presumption of its invalidity.”

Reversed and Remanded.

14-1198, 14-1227, 14-1245 & 14-1389 Pearson v. NBTY, Inc.

Appeals from the United States District Court for the Northern District of Illinois, Zagel, J., Posner, J.

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

Civil Procedure
Dismissal — settlement

A court must resolve the merits unless the defendant satisfies the plaintiff’s demand.

“Gates v. Towery, 430 F.3d 429 (7th Cir. 2005), put this point more generally by holding that a jurisdictional dismissal is proper only if the defendant offers more than the plaintiff’s demand. If the plaintiff asks for the moon, only offering the moon extinguishes the controversy. An excessive demand may lead to sanctions for frivolous litigation but does not diminish the court’s jurisdiction. A defendant cannot have the suit dismissed by making an offer limited to what it concedes the plaintiff is entitled to receive, even if the defendant happens to be right about its view of the plaintiff’s entitlement, because deciding that entitlement resolves the merits. Smith wants more than $1,500; Greystone’s offer did not satisfy her demand; this suit therefore cannot be dismissed for lack of jurisdiction.”

Vacated and Remanded.

14-1758 Smith v. Greystone Alliance, LLC

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

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

Civil Rights
Equitable tolling

Even if the defendant police officer did torture suspects to extract confessions, prisoners are not entitled to equitably toll the statute of limitations on the grounds that no one would have believed them until the practice was exposed by others.

“Instead of contending that the traditional criteria for equitable tolling apply, plaintiffs maintain that delay should be excused because they are confident that, had they sued earlier, they would have lost. They assert that Burge and other officers would have committed perjury at trial and that jurors would have believed the defendants. Until Burge’s criminal conviction (June 28, 2010) litigation would have been pointless, plaintiffs maintain. That is questionable.

Reports of Burge’s misconduct were circulating publicly by 1990. One opinion called this ‘common knowledge’ by the mid-1990s. United States ex rel. Maxwell v. Gilmore, 37 F. Supp. 2d 1078, 1094 (N.D. Ill. 1999). Burge was suspended in 1991 after his supervisors concluded that he had tortured suspects. His name first appeared in this circuit’s opinions in 1993, the year the Police Department fired him, when we reported that a jury had found that he violated suspects’ rights. Wilson v. Chicago, 6 F.3d 1233 (7th Cir. 1993). In 2006 a Special State’s Attorney released a report stating that Burge and his colleagues had engaged in systematic torture of suspects. See People v. Wrice, 2012 IL 111860 ¶¶41–43 (S. Ct. Ill.) (recounting the report’s conclusions). And plaintiffs acknowledge that before Burge’s conviction at least 10 of his victims succeeded in obtaining damages, in amounts as high as $14.8 million.”

Affirmed.

13-3301 Moore v. Burge

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

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

Civil Rights
Eighth Amendment
conditions of confinement

Slippery stairs are not sufficiently hazardous to support a prisoner’s condition of confinement claim under the Eighth Amendment.

“[W]e agree with the central point of the district court’s analysis: The hazard about which Mr. Pyles complains is not sufficiently serious to invoke the Eighth Amendment. Federal courts consistently have adopted the view that slippery surfaces and shower floors in prisons, without more, cannot constitute a hazardous condition of confinement. Accordingly, despite incorrectly holding Mr. Pyles’s complaint to a heightened pleading standard, the district court correctly dismissed this claim at screening.”

Affirmed.

14-1752 Pyles v. Fahim

Appeal from the United States District Court for the Southern District of Illinois, Williams, Mag. J., Ripple, J.

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

Civil Rights
Search warrants
unreasonable execution

Even if a county’s policy of executing even routine search warrants from a heavily-armed SWAT team is unreasonable, summary judgment was properly granted to the county where the plaintiff’s expert’s report was not properly authenticated.

“Gaut’s report severely criticizing the County’s search policy might, if admissible (compare Florek v. Village of Mundelein, 649 F.3d 594, 601–03 (7th Cir. 2011)), entitle the estate to a trial, were it not for a fatal procedural error by its lawyer: failing to authenticate Gaut’s expert report. It was filed with the district court but could not be admitted into evidence without an affidavit attesting to its truthfulness. Fed. R. Civ. P. 56(e)(3); Fed. R. Evid. 901(a); Scott v. Edinburg, 346 F.3d 752, 759–60 and n. 7 (7th Cir. 2003). There was no affidavit.

Nor did the plaintiff’s lawyer cite Gaut’s report in opposing the defendants’ motion for summary judgment. On appeal he made the convoluted argument that it was the defendants’ burden to depose Gaut and that having failed to do that they admitted that everything in his report was true. Not so. Deposing a witness is optional. Anyway the report could not be used to oppose summary judgment because it was inadmissible. Without the report there is insufficient evidence to justify imposing liability on the County.”

Affirmed.

14-1867 Estate of Adam Brown v. Thomas

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

CONSUMER PROTECTION

Wisconsin Court of Appeals

Consumer Protection
Truth-in-Lending Act

DAC Management Company, a corporation owned by David A. Colletti, assumed two loans Town Bank made to another corporation and took out a third loan from the bank. David signed personal guaranties; his and his wife Pamala’s residence (“the property”) secured the loans. The circuit court awarded the bank a joint and several $1,095,671.71 money judgment against DAC, which was obligated under business notes evidencing the loans, against David, due to his personal guaranties, and against Pamala, as a spousal obligation under WIS. STAT. § 766.55(1), as referenced in WIS. STAT. § 806.15(4) (2011-12). It also granted the bank summary judgment on its mortgage foreclosure claim.

2013AP2777 Town Bank v. DAC Management Company, et al.

Dist II, Waukesha County, Neubauer, P.J., Reilly and Gundrum, JJ.

Attorneys: For Appellant: Halloran, Thomas G., Oconomowoc; For Respondent: Bardosy, Adam, Milwaukee

Wisconsin Court of Appeals

Consumer Protection
home improvement
attorney fees

This appeal and cross-appeal are about a dispute regarding the installation of windows in a remodeling project. Dan and Carrie Maringer (collectively referred to as Maringer) appeal the trial court’s judgment in favor of Burback Builders, LLC, arguing that Burback violated home improvement consumer protection law because it did not perform according to their construction contract when it installed single-hung windows instead of double-hung windows in Maringer’s home. Burbank cross-appeals, arguing that the trial court erred in reducing its claimed attorney’s fees. We affirm.

2013AP2478 Maringer v. Burback Builders, LLC

Dist II, Racine County, Gerald P. Ptacek, Judge

Attorneys: For Appellant: Owens, Joseph F., New Berlin; For Respondent: Conrad, Christopher J, Racine

CONSTITIONAL LAW

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

Constitutional Law
Establishment Clause
standing

The plaintiffs lack standing to challenge the constitutionality of the parsonage exemption in the tax code.

“To summarize, plaintiffs do not have standing to challenge the constitutionality of the parsonage exemption. A person suffers no judicially cognizable injury merely because others receive a tax benefit that is conditioned on allegedly unconstitutional criteria, even if that person is otherwise ‘similarly situated’ to those who do receive the benefit. Only a person that has been denied such a benefit can be deemed to have suffered a cognizable injury. The plaintiffs here have never been denied the parsonage exemption because they have never requested it; therefore, they have suffered no injury.”

Vacated and Remanded.

14-1152 Freedom from Religion Foundation Inc. v. Lew

Appeal from the United States District Court for the Western District of Wisconsin, Crabb, J., Flaum, J.

EMPLOYMENT

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

Employment
Sex discrimination
unions

Where a union had a policy of never referring women to a particular class of employers, the district judge erred in dismissing her sex discrimination claim.

“The judge’s belief that ‘failure to refer’ cannot violate Title VII contradicts the statute, which states that it is unlawful for a union to ‘fail or refuse to refer for employment any individual’ because of the individual’s sex. 42 U.S.C. § 2000e- 2(c)(2). If a failure to refer were a consequence merely of inadvertence, and if despite the occasional such failure women received a reasonable number of referrals from the employer, there would be no basis for inferring discrimination on the basis of sex. But the complaint alleges that the plaintiff made repeated, futile requests for referral by the Movie/ Trade Show Division, until Local 727’s business agent told her ‘don’t call us, we’ll call you.’ At that point, for her to have continued to make requests to him for referrals would only have reduced her chances of ever being referred. The union knew she badly wanted driving jobs on film or TV projects, yet every time there was an opening wouldn’t refer her for it, pursuant to a policy of never referring women drivers, though fully qualified, for such openings.”

Reversed and Remanded.

14-1710 Stuart v. Local 727

Appeal from the United States District Court for the Northern District of Illinois, Shadur, J., Posner, J.

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

Employment
Age discrimination

Where a terminated employee’s duties were divided between employees both younger and older than him, summary judgment was properly granted to the employer on his age discrimination claim.

“Of course, hiring younger employees could demonstrate pretext, but in this case Widmar has also failed to present sufficient evidence of this. Sun Chemical denies that Widmar’s duties were absorbed by any younger employees at all, but rather were taken on by Toliopoulos, three years older than Widmar, and Ralph Zarada, another manager who is six years older than Widmar, with both of them delegating tasks to less senior employees. Widmar claims that the twenty-three-year-old Jose Sanchez assumed the bulk of the duties that he had performed in the twelve months prior to his termination, and that Angel Ruiz, who was thirty-nine at the time, assumed others. But even if this is true, Widmar also admits that all of the people who reported to him began reporting to Toliopoulos after he was fired, including Ruiz and Sanchez. (One employee who formerly reported to Widmar began reporting to Zarada.) He also admitted that Toliopoulos and Zarada reported directly to Roberts, just as he had. He does not deny that he had managerial duties and that these older employees assumed some of them.

He now asserts that the bulk of his job was performing lower-level ministerial tasks that were absorbed by the younger non-management workers, Sanchez and Ruiz. But even if we take Widmar’s facts as true, we can only conclude that some of his job duties were absorbed by employees who were older (tasks such as managing less senior employees) and some of his job duties were absorbed by employees who were younger (such as ministerial tasks). Thus even taking the facts in the light most favorable to Widmar (and we agree that it is a stretch that a plant manager/manufacturing man-ager who reported directly to the person overseeing all of manufacturing, purchasing, and the laboratory at the plant spent 90% of his time on ministerial matters), it is still true that Widmar’s duties were re-delegated among two men who were significantly older than Widmar, and two men who were significantly younger. Consequently Widmar has not made a showing that such reassignment was a pretext for discrimination.”

Affirmed.

13-2313 Widmar v. Sun Chemical Corp.

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

INSURANCE

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

Insurance
Homeowners policies — continuous trigger theory

Where a home suffered water damage whenever it rained from the time it was built, a suit against the insurers for coverage filed within one year of discovering the damage was timely.

“In Wisconsin, under the continuous trigger theory, a progressive loss ‘occurs continuously from exposure until manifestation.’ Soc’y, 607 N.W.2d at 346. Here, because the loss was ongoing and occurred with each rainfall and because the Policy itself states that ‘[c]ontinuous or repeated exposure to substantially the same general conditions unless excluded is considered to be one occurrence,’ the loss, for purposes of the statute of limitations, occurred all the way up until the damage manifested in October 2010. The parties do not dispute that the Strausses filed suit within one year of manifestation of the water infiltration. Therefore, their suit is timely.”

Affirmed.

13-2580 Strauss v. Chubb Indemnity Ins. Co.

Appeal from the United States District Court for the Eastern District of Wisconsin, Goodstein, Mag. J., Kendall, J.

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

Insurance
Homeowners policies — continuous trigger theory

Where a home suffered water damage whenever it rained from the time it was built, a suit against the insurers for coverage filed within one year of discovering the damage was timely.

“In Wisconsin, under the continuous trigger theory, a progressive loss ‘occurs continuously from exposure until manifestation.’ Soc’y, 607 N.W.2d at 346. Here, because the loss was ongoing and occurred with each rainfall and because the Policy itself states that ‘[c]ontinuous or repeated exposure to substantially the same general conditions unless excluded is considered to be one occurrence,’ the loss, for purposes of the statute of limitations, occurred all the way up until the damage manifested in October 2010. The parties do not dispute that the Strausses filed suit within one year of manifestation of the water infiltration. Therefore, their suit is timely.”

Affirmed.

13-2580 Strauss v. Chubb Indemnity Ins. Co.

Appeal from the United States District Court for the Eastern District of Wisconsin, Goodstein, Mag. J., Kendall, J.

JUVENILES

Wisconsin Court of Appeals
Juveniles
TPR — prior involuntary termination

Christina L. appeals a circuit court order terminating her parental rights to Aiden G-L., based on Christina L.’s no contest plea to grounds for termination under Wis. Stat. § 48.415(10).

This provision creates grounds for termination when the child at issue has been adjudged to be in need of protection or services (CHIPS) and, within three years prior to the date the court adjudged the child to be CHIPS, a court has ordered termination with respect to a different child of the same parent. Christina L.’s sole argument on appeal is that there is not a factual basis to support her plea, because Aiden G-L. was not “adjudged” CHIPS, under the terms of § 48.415(10), within three years of the involuntary termination of her parental rights to another child, Shaun L. For the following reasons, I conclude that Aiden G-L. was adjudged CHIPS within three years of the involuntary termination of Christina L.’s parental rights to Shaun L.

Accordingly, I affirm the decision of the circuit court terminating Christina L.’s parental rights to Aiden G-L.

2014AP001437 Dane Co. DHS v. Christina L.

Dist IV, Dane County, C. WILLIAM FOUST, Judge

Attorneys: For Appellant: Brehm, Philip J. For Respondent: Rehfeldt, Gary

MUNICIPALITIES

Wisconsin Court of Appeals
Municipalities
junk vehicle ordinances

Randy Krongard appeals a circuit court order affirming the denial of his motion to vacate a municipal court default judgment. Krongard argues the circuit court erred in determining the Village of North Hudson’s ordinance regulating “junk vehicles” is constitutional and was validly adopted under the Village’s Wis. Stat. § 61.34 power to regulate for the health, safety, and welfare of the public. We disagree with Krongard’s arguments and affirm. This opinion will not be published.

2014AP980 Village of North Hudson v. Krongard

Dist III, St. Croix County, Needham, J., Stark, J.

Attorneys: For Appellant: Kingstad, Jon Erik, Oakdale, Minn.; For Respondent: Bartholomew, James R., Hudson

PROPERTY

Wisconsin Court of Appeals
Property
foreclosure

Timothy and Laura Gens appeal pro se from a judgment entered in favor of Colonial Savings, F.A. Although the Genses raise numerous arguments on appeal, the dispositive issue is whether Colonial Savings was entitled to summary judgment in this foreclosure action. For the reasons that follow, we affirm.

2013AP2496 Colonial Savings F.A. v. Gens

Dist II, Walworth County, Neubauer, P.J., Reilly and Gundrum, JJ.

Attorneys: For Appellant: Gens, Timothy H., Gens, Laura A., Pro se; For Respondent: Cravens, John A., Wausau

REMEDIES

Wisconsin Court of Appeals
Remedies
harassment injunctions

Aaron Alder appeals a harassment injunction order granted in favor of his former spouse, Melissa Bevan, and an order denying a motion for reconsideration. Alder argues the circuit court erroneously exercised its discretion by not continuing the hearing on Bevan’s petition for an injunction and he asks this court to vacate the injunction. For the reasons discussed below, we affirm.

2014AP453 Bevan v. Alder

Dist IV, Jefferson County, Wambac, Judge

Attorneys: For Appellant: Buehler, Chad     For Respondent: Santiago-Rivera, Grice

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

Remedies
False Claims Act

Where a relator could not show that the government employees who wrote grant applications knew that the City was implementing a program different from the affirmative action plan, summary judgment was properly granted to the city on the relator’s qui tam action.

“Doubtless the people who submitted the grant applications knew that bureaucracies tend to develop their own folkways. Job descriptions don’t match what employees do in fact. Organization charts show a hierarchy that does not reflect who actually reports to whom, who has final authority to sign off on a project, or which supervisor handles what tasks. A plan may show that four levels of the staff (an original decision plus three levels of review) process equal employment complaints, while only two levels of review are used in practice. Departing from the formal documents in order to get things done more quickly or accurately is common, and some flexibility is essential when administrators encounter circumstances that plan-writers did not anticipate. Chicago has a huge bureaucracy; what works in one bureau may not work in another, and slavishly following a single plan could be counterproductive. Unions that call on members to ‘work to rule’ as an alternative to a strike know that nothing cripples a bureaucracy faster than handling everything by the book. No one who stands in line for service at a public agency, or waits impatiently for an agency to resolve a grievance or issue a license, wants every written procedure to be followed.

Practical accommodations are a relief.”

Affirmed.

14-1317 Hill v. City of Chicago

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

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

Torts
FTCA; discretionary — function exception

Where a federal prisoner alleges that the guards violated explicit responsibilities, leading to his beating by other prisoners, the government is not entitled to immunity under the discretionary function exception.

“The government has also failed to establish that the actions of the prison guards assigned to Units 1 and 2 are protected by the discretionary function exception. The government relies on the declaration of a prison administrator that guards assigned to different areas of the compound are interchangeable and that guards do not need to be in any particular area at any given time. However, the heavily redacted documents in the record suggest that prison guards are assigned to specific areas of the yard and are required to monitor their areas and to respond to emergency situations within them. In other words, guards cannot choose, at least without a good reason, to stop monitoring their assigned areas without violating their explicit responsibilities under the post orders. Keller alleges that the guards stopped monitoring their assigned areas as required by the post orders because they were lazy and inattentive. There is no evidence to the contrary in the record. Based on the summary judgment record, then, we cannot conclude as a matter of law that the guards’ behavior is shielded by the discretionary function exception.”

Reversed and Remanded.

13-3113 Keller v. U.S.

Appeal from the United States District Court for the Southern District of Indiana, Magnus-Stinson, J., Hamilton, J.

Wisconsin Court of Appeals

Torts
legal malpractice — standing

Brothers Bruce W. and Russell C. Bullamore appeal an order dismissing their claims against Attorney Eugene J. Brookhouse. After their father died, Brookhouse assisted their former stepmother in redoing her estate plan, eliminating them as beneficiaries. We conclude that the Bullamores pled no claim by which Brookhouse owed them, third-party nonclients, a duty, and that the court acted properly in dismissing their complaint with prejudice and in denying their motion for leave to amend their complaint a third time. We affirm.

2014AP232 Bullamore v. Bednar

Dist II, Racine County, Brown, C.J., Neubauer, P.J., and Reilly, J.

Attorneys: For Appellant: Southwick, Benjamin, Richland Center; For Respondent: Nelson, Christine K., Waukesha

CRIMINAL

CRIMINAL PROCEDURE

Wisconsin Court of Appeals
Criminal Procedure
ineffective assistance — juror contamination

Jerry Ehrett appeals a judgment convicting him of child abuse, recklessly causing great harm. He also appeals an order denying his postconviction motion in which he argued that he was denied his right to trial by an impartial jury and his trial counsel was ineffective for failing to move for a mistrial after the circuit court learned that two jurors looked up Ehrett on the internet and discussed what they found in the presence of other jurors. The circuit court denied the motion without a hearing, finding that no juror was tainted by extraneous information and that the jurors were credible and sincere when they said they could disregard any extraneous conversation about the defendant. Ehrett argues that the jurors’ assurances deserve no weight and that one of the jurors committed perjury. Because we conclude that the allegations in Ehrett’s motion are based on speculation and lack sufficient detail to show ineffective assistance of counsel or grounds for a mistrial, we affirm the judgment and order.

2013AP2190-CR State v. Ehrett

Dist IV, Dane County, Hanrahan, Judge

Attorneys: For Appellant: Schoenfeldt, Mark A. For Respondent: Balistreri, Thomas J., Moeser, Matthew

Wisconsin Court of Appeals

Criminal Procedure
ineffective assistance — new trials

James Norquay appeals a judgment following a jury trial for second-degree sexual assault of a child, three counts of sexual assault of a child by a foster parent, and two counts of incest with a child. Norquay also challenges the denial of his postconviction motion. He argues ineffective assistance of trial counsel, and also seeks a new trial in the interest of justice.

We reject his arguments and affirm.

2013AP526-CR State v. Norquay

DISTRICT IV, Green County, Blanchard, P.J., Lundsten and Sherman, JJ.

Attorneys: For Appellant: Henak, Robert R., Henak, Ellen For Respondent: Luhman, Gary L., Whelan, Maura F.J.

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

Criminal Procedure
Entrapment

A defendant who agreed to participate in a fake armed robbery of a fake stash house was entitled to present an entrapment defense.

“To recap, entrapment is a defense to criminal liability when the defendant was not predisposed to commit the charged crime before the intervention of the government’s agents and the government’s conduct induced him to commit it. The two elements of the defense—lack of predisposition and government inducement—are conceptually related but formally and temporally distinct.”

“The predisposition element focuses on the defendant’s circumstances before and at the time the government first approached him with a proposal to commit the crime. A defendant is predisposed to commit the charged crime if he was ready and willing to do so and likely would have committed it without the government’s intervention, or actively wanted to but hadn’t yet found the means.”

“As for the inducement element, the fact that the government initiated contact with the defendant, suggested the crime, or created the ordinary opportunity to commit it is not sufficient; something more is required, either in terms of the character and degree of the government’s persistence or persuasion, the nature of the enticement or reward, or some combination of these.

Conduct by the government’s agents amounts to inducement if, considering its character and the factual context, it creates a risk that a person who otherwise would not commit the crime if left alone will do so in response to the government’s persuasion.”

“Procedurally, entrapment is an issue of fact for the jury. The defendant is entitled to present the defense at trial if he shows that some evidence supports it. This initial burden is not great; the defendant must produce some evidence from which a reasonable jury could find government inducement and lack of predisposition. If he can make this showing, the court must instruct the jury on entrapment and the government must prove beyond a reasonable doubt that the defendant was predisposed to commit the charged crime, or alternatively (but less commonly), that there was no government inducement. When the issue is raised before trial on the government’s motion to preclude the defense, the court must accept the defendant’s factual proffer as true and not weigh it against the government’s evidence.”

Vacated and Remanded.

11-2439 U.S. v. Mayfield

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

Wisconsin Court of Appeals

Criminal Procedure
Expunction

Section 973.015 provides no authority for circuit courts to expunge the record related to civil forfeiture violations.

“Looking to the language of the statute, para. (1)(a) provides that a court may order expunction ‘when a person is under the age of 25 at the time of the commission of an offense for which the person has been found guilty in a court for violation of a law for which the maximum period of imprisonment is 6 years or less.’ (Emphasis added.) We read this language as indicating that law violations for which expunction is available relate to laws that include some ‘period of imprisonment.’ Thus, where there is no ‘period of imprisonment’ associated with a law, that law is not one to which WIS. STAT. § 973.015 applies. As Frett acknowledges on appeal, the county ordinance she violated included no potential period of imprisonment. See KENOSHA COUNTY, WIS., ORDINANCE § 9.287.81 (2009) (providing that the penalty for violation of this ordinance ‘is a forfeiture of not less than $25 nor more than $500’); see also State ex rel. Keefe v. Schmiege, 251 Wis. 79, 84-86, 28 N.W.2d 345 (1947) (holding that municipalities and counties do not have the power to impose a penalty of imprisonment for violation of an ordinance other than as a means of enforcing payment). Therefore, expunction is not an option for Frett’s civil littering violation.”

Affirmed.

Recommended for publication in the official reports.

2014AP6 Kenosha County v. Frett

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

Wisconsin Court of Appeals

Criminal Procedure
plea withdrawal

Stephanie M. Przytarski appeals the judgment finding her guilty of non-summary criminal contempt, see Wis. Stat. §§ 785.03(1)(b) & 785.04(2)(a), and the order denying her motion for postconviction relief. The issue is whether she has shown a post-sentence “manifest injustice” that would allow her to withdraw her guilty plea to non-summary criminal contempt. See State v. McCallum, 208 Wis. 2d 463, 473, 561 N.W.2d 707, 710 (1997) (“After sentencing, a defendant who seeks to withdraw a guilty or no contest plea carries the heavy burden of establishing, by clear and convincing evidence, that withdrawal of the plea is necessary to correct a manifest injustice.”). We affirm. This opinion will not be published.

2014AP1019-CR In re: the findings of contempt: State v. Przytarski

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

Attorneys: For Appellant: Holevoet, John, Madison; For Respondent: Loebel, Karen A., Milwaukee; Weber, Gregory M., Madison; Torbenson, Matthew, Milwaukee

Wisconsin Court of Appeals

Criminal Procedure
successive appeals

Eric M. Walker, pro se, appeals an order of the circuit court denying his motion for postconviction relief. Walker also appeals an order denying his reconsideration motion. We agree with the circuit court’s construction of Walker’s motion as one for relief under Wis. Stat. § 974.06, and we agree with the application of a procedural bar. We therefore affirm the orders. This opinion shall not be published.

2014AP259 State v. Walker

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

Attorneys: For Appellant: Walker, Eric M., pro se; For Respondent: Loebel, Karen A., Milwaukee; Winter, Tiffany M., Madison

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

Criminal Procedure
Ineffective assistance — conflict of interest

Where the defendant’s attorney did not find out he was under federal investigation until after he finished representing the defendant, there was no conflict of interest.

“The principles governing our decision are well-settled. The Sixth Amendment right to counsel includes the right to Conflict-free counsel. Wood v. Georgia, 450 U.S. 261, 271 (1981); United States v. Hubbard, 22 F.3d 1410, 1418 (7th Cir. 1994). Here, there does not appear to be even a possibility of a conflict of interest in light of the district court’s finding that Mr. Brindley was unaware of the investigation until many months after his role in the appeal was complete.”

Motion denied.

13-1375 U.S. v. Smith

Appeal from the United States District Court for the Southern District of Illinois, Gilbert, J., Per Curiam

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

Criminal Procedure
Ineffective assistance — conflict of interest

Where the defendant’s attorney did not find out he was under federal investigation until after he finished representing the defendant, there was no conflict of interest.

“The principles governing our decision are well-settled.

The Sixth Amendment right to counsel includes the right to Conflict-free counsel. Wood v. Georgia, 450 U.S. 261, 271 1981); United States v. Hubbard, 22 F.3d 1410, 1418 (7th Cir. 1994). Here, there does not appear to be even a possibility of a conflict of interest in light of the district court’s finding that Mr. Brindley was unaware of the investigation until many months after his role in the appeal was complete.”

Motion denied.

13-1375 U.S. v. Smith

Appeal from the United States District Court for the Southern District of Illinois, Gilbert, J., Per Curiam

HABEAS CORPUS

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

Habeas Corpus
Right to present a defense

It was not contrary to clearly established U.S. Supreme Court precedent for a state court to not allow expert testimony about the defendant’s mental state in a non-capital prosecution.

“That is why Keith invokes the generic ‘right to present a Defense’ rather than a concrete rule about expert testimony. Yet the Supreme Court has concluded that §2254(d)(1) forbids framing the theory at such a high level of generality. Nevada v. Jackson, 133 S. Ct. 1990 (2013), is particularly instructive, because a court of appeals proceeded exactly as Keith asks us to. A state court had excluded some evidence; the court of appeals issued a writ of habeas corpus after concluding that the state judiciary violated the right to present a defense; the Supreme Court reversed, observing that ‘[b]y framing our precedents at such a high level of generality, a lower federal court could transform even the most imaginative extension of existing case law into “clearly established Federal law, as determined by the Supreme Court.”’ Id. at 1994. The right question, Jackson held, is whether decisions of the Supreme Court establish that the particular decision the state judiciary reached is forbidden. The Justices stated in Jackson that this meant decisions about the admissibility of the sort of evidence the defense had proffered. See also, e.g., Lopez v. Smith, No. 13–946 (U.S. Oct. 6, 2014), slip op. 5–6; Marshall v. Rodgers, 133 S. Ct. 1446, 1450–51 (2013); Parker v. Matthews, 132 S. Ct. 2148, 2155–56 (2012).”

Affirmed.

14-1657 Keith v. Schaub

Appeal from the United States District Court for the Eastern District of Wisconsin, Callahan, Mag. J., Easterbrook, J.

IDENTITY THEFT

Wisconsin Court of Appeals
Identity theft
Sufficiency of the evidence

To prove identity theft under sec. 943.201(2)(a), the State does not have to prove that the defendant knew that the personal identifying information he used belonged to an actual person.

“The statute’s focus on mental purpose, rather than knowledge, distinguishes it from the aggravated identity theft statute at issue in Flores-Figueroa, relied upon by Moreno-Acosta. That federal statute provides for an aggravated penalty if, during certain felony violations, the defendant knowingly uses the personal identifying information of another person. See 18 U.S.C. § 1028A(a)(1) (2006). As the Wisconsin jury instructions counsel, ‘knowingly’ is not the same as ‘intentionally.’ ‘To know’ means ‘to be cognizant or aware, as of some fact, circumstance, or occurrence; have information, as about something.’ RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 1064 (2d ed. 1987). ‘Intention’ means the ‘act or instance of determining mentally upon some action or result,’ ‘purpose or attitude toward the effect of one’s actions or conduct.’ Id. at 991. Intention implies purposeful action, while knowledge suggests only awareness.

The federal statute in Flores-Figueroa, by using the word ‘knowingly,’ requires that the actor know all facts following that adverb, including that the information belongs to an actual person. Significantly, the statute criminalizes the knowing use of that information without any reference to any prohibited purposes. The Wisconsin statute thus has different wording and an entirely different structure, focusing on the actor’s intent to purposefully use the personal identifying information to obtain employment; ‘intentionally’ modifies ‘uses,’ the core action in the statute, and the purpose, ‘to obtain employment,’ not that the personal identifying information belonged to a person. If the legislature had wanted the statute to mean what Moreno-Acosta says it means, the legislature could have said that the actor intentionally uses personal identifying information known to belong to an actual person, or language to that effect. It did not. See also State v. Garcia, 788 N.W.2d 1, *2-3 & n.2 (Iowa Ct. App. 2010) (under Iowa statute that criminalizes fraudulent use of identification information of another, State has to establish that information was of another person and that it was used fraudulently; ‘A “fraudulent” use requires Garcia know his use was illegitimate, but does not require him to know the identification was of another person.’).”

Affirmed.

Recommended for publication in the official reports.

2013AP2173-CR State v. Moreno-Acosta

Dist. II, Walworth County, Race, J., Neubauer, J.

MOTOR VEHICLES

Wisconsin Court of Appeals
Motor Vehicles
implied consent — probable cause

Kenneth Cogdill appeals an order of the circuit court finding that his refusal to submit to a chemical test of his blood was not reasonable. Cogdill’s sole contention on appeal is that his driver’s license should not have been revoked, because the investigating officer lacked probable cause to believe that he had been operating a motor vehicle while under the influence of an intoxicant (OWI). For the reasons discussed below, I affirm.

2014AP001492 City of Portage v. Cogdill

Dist IV, Columbia County, Daniel George, Judge

Attorneys: For Appellant: Piel, Walter Arthur, Jr. For Respondent: Spankowski, Jesse

SEARCH AND SEIZURE

Wisconsin Court of Appeals
Search and Seizure
Warrantless searches; exigent circumstances

Where officers believed evidence would be destroyed if they did not enter immediately, exigent circumstances were present.

“Parisi cites to our decision in State v. Kiekhefer, 212 Wis. 2d 460, 569 N.W.2d 316 (Ct. App. 1997), in support of her assertion that no exigent circumstances existed. In that case, after smelling an odor of burning marijuana coming from behind Kiekhefer’s closed bedroom door, officers entered his bedroom unannounced. Id. at 466. Although we concluded that the officers’ entry was unlawful, id. at 480, Kiekhefer is of no assistance to Parisi because there was ‘no indication that Kiekhefer was aware’ of the officers’ presence outside his door. Id. at 477.

As our supreme court noted while analyzing Kiekhefer in Hughes, the officers in Kiekhefer ‘entered the room based upon the odor alone, in the absence of any other facts suggesting exigency.’ Hughes, 233 Wis. 2d 280, ¶28. Here, in addition to the smell of burning marijuana, the police had strong reason to believe the previously conversing occupants were aware police were at the door trying to make contact, and after Sell knocked and announced the police presence, he could no longer hear them conversing and no one answered the door. As previously indicated, it is not a far stretch to conclude that those seeking to avoid detection by the police when the smell of marijuana is present would also be likely to destroy the marijuana to prevent that evidence from being discovered. See id., ¶35 (With the smell of marijuana emanating from the apartment, the police ‘knew that once the people inside the apartment were alerted to their presence, the likelihood of intentional evidence destruction was extremely high.’).”

Affirmed.

Recommended for publication in the official reports.

2014AP474-CR State v. Parisi

Dist. II, Winnebago County, Jorgensen, J., Gundrum, J.

Wisconsin Court of Appeals

Search and Seizure
dog sniffs; reliability

Matthew White appeals a judgment convicting him on his no contest pleas of possession of methamphetamine and misdemeanor bail jumping. Pursuant to Wis. Stat. § 971.31(10), he challenges the circuit court’s order denying his motion to suppress evidence seized from a car White was using at the time of arrest. White contends the evidence should have been suppressed because the search was based on an unreliable dog sniff for the presence of narcotics. Because the evidence supports the circuit court’s finding that the State proved all of the factors necessary to establish probable cause based on the dog sniff, we affirm the judgment. This opinion will not be published.

2013AP2835-CR State v. White

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

Attorneys: For Appellant: Pappas, George S., Jr., Green Bay; For Respondent: Heimerman, Kenneth J., Wausau; Noet, Nancy A., Madison

SENTENCING

Wisconsin Court of Appeals
Sentencing
inaccurate information

Adam Goad appeals from a judgment convicting him, on his guilty plea, of repeated sexual assault of the same child. Goad also appeals from an order denying his postconviction motion seeking resentencing because the circuit court allegedly relied upon inaccurate information about the time period during which the crime was committed. We agree with the circuit court that Goad did not establish that the circuit court relied upon inaccurate information when it imposed a sixteen-year sentence. Therefore, we affirm.

2013AP2524-CR State v. Goad

Dist II, Kenosha County, Neubauer, P.J., Reilly and Gundrum, JJ.

Attorneys: For Appellant: Cornwall, Andrea Taylor, Milwaukee; For Respondent: Zapf, Robert D., Kenosha

Wisconsin Court of Appeals

Sentencing
life sentences

Garland D. Hampton, pro se, appeals from an order of the circuit court, denying his motion for resentencing. Hampton asserts that Miller v. Alabama, 132 S. Ct. 2455 (2012), requires resentencing. We agree with the circuit court that Miller does not apply to Hampton, so we affirm the order. This opinion shall not be published.

2014AP1020 State v. Hampton

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

Attorneys: For Appellant: Hampton, Garland D., pro se; For Respondent: Loebel, Karen A., Milwaukee; Latorraca, Donald V., Madison

SEXUALLY VIOLENT PERSONS

Wisconsin Court of Appeals
Sexually Violent Persons
petitions for discharge

Kevin J. Haen appeals from an order denying his petition for discharge from a Wis. Stat. ch. 980 (2011-12)[1] commitment. Haen contends that the circuit court erred in denying his petition without a hearing. We disagree and affirm.

2014AP000598 State v. Haen

Dist II, St. Winnebago County, Brown, C.J., Neubauer, P.J., and Reilly, J.

Attorneys: For Appellant: Phillips, Steven D., Madison; For Respondent: Greene, Kevin C., Green Bay; Gossett, Christian A., Oshkosh; Remington, Christine A., Madison

THEFT

Wisconsin Court of Appeals
Theft
sufficiency of the evidence

Randy Ross appeals an order denying his Wis. Stat. § 974.06 motion for postconviction relief. He also petitions this court for a writ of habeas corpus. Ross claims the attorney who represented him in conjunction with his first postconviction motion and direct appeal was ineffective by failing to raise or adequately develop several arguments regarding ineffective assistance of trial counsel. Ross also argues his sentence on count one — theft of movable property whose value exceeds $5,000 but does not exceed $10,000 — was unlawful because the evidence presented at trial was insufficient to establish the value of the stolen property. We reject Ross’s arguments and affirm. This opinion will not be published.

2014AP313-W, 2014AP344 State ex rel. Ross v. Pugh

Dist III, Taylor County, Knox-Bauer, J., Per Curiam

Attorneys: For Appellant: York, Katie R., Madison; For Respondent: Potter, Kevin C., Madison; Lloyd, Katherine Desmond, Madison