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Weekly Case Digests — Dec. 15-19, 2014

By: WISCONSIN LAW JOURNAL STAFF//December 19, 2014//

Weekly Case Digests — Dec. 15-19, 2014

By: WISCONSIN LAW JOURNAL STAFF//December 19, 2014//

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CIVIL CASES

Wisconsin Supreme Court

Civil Commitment
Sufficiency of the evidence

An articulated plan is not a necessary component of a suicide threat.

“If we were to hold otherwise, it would require a person in a confused mental state to articulate a plan before obtaining treatment through involuntary commitment.  That would write into the statute a potential barrier to treatment that is inconsistent with its purpose.  We also conclude that the evidence was sufficient to support Michael’s involuntary commitment because credible evidence existed in the record supporting inferences that there was a substantial probability that he was dangerous to himself within the meaning of Wis. Stat. §§ 51.20(1)(a)2.a., based on threats of suicide or serious bodily harm, and (1)(a)2.c., based on impaired judgment, manifested by a pattern of recent acts.”

Affirmed.

2013AP1638-FT Outagamie County v. Michael H.

Crooks, J.

Wisconsin Court of Appeals

Civil Procedure
small claims – de novo review

APPEAL from an order of the circuit court for Waukesha County:  LEE S. DREYFUS, JR., Judge.  Affirmed.

Leona Smith and Larry Scruggs (collectively referred to as Smith) appeal the dismissal of their small claims action against Timothy Patti.  The circuit court did not err in determining that Smith did not timely request de novo review of the court commissioner’s decision.  Therefore, we affirm the circuit court’s denial of de novo review.

2014AP001536 Leona Smith v. Timothy Patti

DISTRICT II, Waukesha County, LEE S. DREYFUS, JR.,NEUBAUER, P.J.

Attorneys: For Respondent: Hill, David Seth

U.S. Supreme Court

Civil Procedure
Removal

As specified in 28 U.S.C. 1446(a), a defendant’s notice of removal need include only a plausible allegation that the amount in controversy exceeds the jurisdictional threshold; the notice need not contain evidentiary submissions.

Section 1446(a) tracks the general pleading requirement stated in Rule 8(a) of the Federal Rules of Civil Procedure. By borrowing Rule8(a)’s “short and plain statement” standard, corroborative history indicates, Congress intended to clarify that courts should “apply the same liberal rules [to removal allegations as] to other matters of pleading.” H. R. Rep. No. 100–889, p. 71. The amount-in-controversy allegation of a plaintiff invoking federal-court jurisdiction is accepted if made in good faith. See, e.g., Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 276. Similarly, the amount-in-controversy allegation of a defendant seeking federal-court adjudication should be accepted when not contested by the plaintiff or questioned by the court. In the event that the plaintiff does contest the defendant’s allegations, both sides submit proof and the court decides, by a preponderance of the evidence, whether the amount-in-controversy requirement has been satisfied, see §1446(c)(2)(B).

Vacated and remanded.

13-719 Dart Cherokee Basin Operating Co., LLC, v. Owens

Ginsburg, J.; Scalia, J., dissenting; Thomas, J. dissenting.

U.S. Court of Appeals For the Seventh Circuit

Civil Procedure
Class actions – securities

Where only shareholders who could show loss causation received proceeds in a class action settlement, it was not an abuse of discretion for the district court to approve the settlement.

“Hayes’s position is that the district court abused its discretion by approving a plan of distribution that provides for those who cannot show damages, i.e., loss causation, even

though it defined the class for purposes of settlement as those individuals who purchased Accretive common stock during the class period “and who were damaged by Defendants’ alleged violations.” (Emphasis added.) Yet, he is mistaken. The plan of distribution, in fact, does not provide for those who cannot show loss causation. An examination of the formula used to calculate settlement distributions reveals that only those who can show loss causation, i.e., those that held their stock until March 29, 2012, will receive a distribution. The

claim per share for those who sold before March 29, 2012 will always be zero. Thus, the district court did not abuse its discretion by approving the plan of distribution.”

Affirmed.

14-2191 Wong v. Accretive Health, Inc.

Appeal from the United States District Court for the Northern District of Illinois, Coleman, J., Manion, J.

Wisconsin Court of Appeals

Employment
unemployment compensation – misconduct

APPEAL from a judgment of the circuit court for Forest County:  FRED W. KAWALSKI, Judge.  Affirmed.

Lloyd Spencer appeals a judgment affirming a decision of the Labor and Industry Review Commission.  The Commission determined Spencer was not entitled to unemployment compensation because he was fired for misconduct.  Applying great weight deference, we conclude the Commission reasonably determined Spencer was fired for misconduct.  We therefore affirm.

PER CURIAM.

2014AP001274 Lloyd A. Spencer v. Labor and Industry Review Commission

DISTRICT III, Forest County, FRED W. KAWALSKI, Hoover, P.J., Stark and Hruz, JJ.

Attorneys: For Appellant: Kennedy, Robert A., Jr. For Respondent: Molitor, Ann M.

U.S. Court of Appeals For the Seventh Circuit

Environmental Law
Clean Air Act – attainment

The EPA reasonably decided that Milwaukee and other areas had attained the requisite ambient air quality standards for ozone.

“The overarching theme running through Sierra Club’s petition is that EPA could have done more. But the question before us concerns only whether EPA was required to do more. The CAA mandated that EPA determine that reduced ozone levels were ‘due to permanent and enforceable reductions in emissions resulting from implementation of the applicable implementation plan and applicable federal air pollutant control regulations and other permanent and enforceable reductions.’ 42 U.S.C. § 7407(d)(3)(E)(iii). The Calcagni Memo interprets this causation provision to impose on EPA an obligation to ‘reasonably attribute’ air quality improvement ‘to emission reductions which are permanent and enforceable,’ not to prove causation with any higher degree of confidence than that. While the Calcagni Memo made clear that ‘[a]ttainment resulting from temporary reductions in emission rates (e.g., reduced production or shutdown due to temporary adverse economic conditions) or unusually favorable meteorology would not qualify,’ that language cannot fairly be read to impose—as Sierra Club would prefer—an affirmative obligation on EPA to analyze, model, and scientifically quantify the effects of those variables on emissions reductions. Instead, the Memo instructed EPA to ‘estimate the percent reduction . . . achieved from Federal Measures . . . as well as control measures that have been adopted and implemented by the State . . . . to clearly show that the air quality improvements are the result of implemented controls.’ EPA did that here.”

Petition denied.

12-2853, 12-3142 & 12-3143 Sierra Club v. EPA

U.S. Court of Appeals For the Seventh Circuit

Evidence
Expert testimony

Where the plaintiff did not know why he fell from a ladder, the district court erred in excluding his expert’s testimony as to how a defect could have caused the fall.

“Kurt’s fall happened very quickly. He testified that he did not see or hear anything, but that the ladder suddenly moved to his left. His expert then reconstructed what happened and gave his opinion on how an alleged defect could have caused the accident. It is not the trial judge’s job to determine whether the expert’s opinion is correct. Smith, 215 F.3d at 719. Instead, under the relevancy prong, the judge is limited to determining whether expert testimony is pertinent to an issue in the case. Id. Here, the judge improperly expanded his role beyond gatekeeper to trier of fact. See Lauzon, 270 F.3d at 694 (holding that under the relevancy prong of Daubert, the opinion offered by an expert is admissible where it is ‘sufficiently related to the facts of the case such that it will aid the jury in resolving the factual dispute’); see also Lee v. Smith & Wesson Corp., 760 F.3d 523, 526 (6th Cir. 2014) (reversing the district court’s exclusion of the expert’s testimony and stating that a party may prove his case by any

relevant evidence, even though that evidence may contradict the testimony of a witness previously called by him).”

Reversed and Remanded.

14-2018 Stuhlmacher v. Home Depot U.S.A., Inc.

Appeal from the United States District Court for the Northern District of Indiana, Rodovich, Mag. J., Williams, J.

Wisconsin Supreme Court

Professional Responsibility
Suspension

Where attorney John J. Carter lied to and misappropriated funds from a client, a three-year suspension is appropriate.

“We pause to remark briefly on Attorney Carter’s claim that at his age (he was born in 1943), a three-year suspension——which will require him to petition this court for reinstatement under SCR 22.28(3)——might effectively end his career.  Attorney Carter generally maintains that it is sad for an otherwise untarnished career to potentially end this way.  We agree with this sentiment:  this is an unfortunate case involving anomalous behavior from an otherwise ethical lawyer, and we do not relish deciding it.

But we decline to transform this sentiment into anything more than what it is——a sentiment, not a principle of law.  This court cannot countenance a rule that would soft-pedal the discipline owed to attorneys who lie to and misappropriate funds from their clients so long as they do so in the twilight of their careers.”

2012AP1827-D OLR v. Carter

Per Curiam.

Wisconsin Supreme Court

Professional Responsibility
Public reprimand

Where attorney Richard W. Steffes failed to comply with rules governing trust accounts, a public reprimand is appropriate.

“The OLR appeals neither the referee’s findings and conclusions regarding the alleged counts of misconduct, nor her recommendation for a public reprimand.  The record here supports the referee’s findings and conclusions and the referee has substantiated her recommendation for a public reprimand.  The court therefore accepts and adopts the referee’s findings, conclusions, and recommendation for a public reprimand.”

2012AP2350-D OLR v. Steffes

Per curiam.

Wisconsin Court of Appeals

Property
Foreclosure – Standing

APPEAL from a judgment of the circuit court for Milwaukee County:  PAUL R. VAN GRUNSVEN, Judge.  Affirmed.

James R. Braun, pro se, appeals a summary judgment of foreclosure granted to JPMorgan Chase Bank National Association.  Braun contends that summary judgment was inappropriate because Chase lacked standing, the note was fraudulent because it lacked his then-wife’s signature, and the original note had been refinanced and was now unenforceable.  We conclude that Braun has pointed to no proof sufficient to defeat summary judgment, so we affirm the judgment.

PER CURIAM.

2013AP002788 JPMorgan Chase Bank National Association v. James R. Braun

DISTRICT I, Milwaukee County, PAUL R. VAN GRUNSVEN, Curley, P.J., Kessler and Brennan, JJ.

Attorneys: For Appellant: Wilson, Julie P., Sullivan, Kevin P. For Respondent: Witkov, Adam E., Finerty, John D., Jr., O’Dess, M. Abigail

Wisconsin Court of Appeals

Tax
property taxes – leased retail property

APPEAL from a judgment of the circuit court for Winnebago County:  DANIEL J. BISSETT, Judge.  Affirmed.

2013AP002818 Walgreen Co. v. City of Oshkosh

DISTRICT II, Winnebago County, DANIEL J. BISSETT, Neubauer, P.J., Reilly, Gundrum, JJ.

Attorneys: For Appellant: Carlson, Richard J., Seibel, Amy R. For Respondent: Millis, Don M., Polakowski, Jessica Hutson

Wisconsin Court of Appeals

Trusts and Estates
wills – undue influence

APPEAL from orders of the circuit court for Milwaukee County:  JANE V. CARROLL, Judge.  Affirmed.

Lori Laatsch and Robyn L. Cox, formerly known as Robyn L. Laatsch, appeal the order denying their motion to admit the March 10, 2008 will of Laatsch’s half-sister, Rebecca Derzon, into probate, and finding Rebecca’s March 10, 2008 will and trust to be the products of undue influence and therefore invalid.  The trial court’s order was supported by a thoughtful, well-reasoned decision, and Laatsch’s arguments on appeal in no way undermine or cast doubt on that decision.  Consequently, we affirm.

2012AP002590 Lori Laatsch v. Alan Derzon

DISTRICT I, Milwaukee County, JANE V. CARROLL, Curley, P.J., Kessler, J., Thomas Cane

Attorneys: For Appellant:  Tess-Mattner, Kent A. For Respondent: Demet, Kevin J., Wisniewski, Jack G., Collis, James E.

CRIMINAL CASES

Wisconsin Court of Appeals

Criminal Procedure
ineffective assistance

APPEAL from a judgment and an order of the circuit court for Winnebago County:  KAREN L. SEIFERT, Judge.  Affirmed.

Kenneth C. Hahn appeals from a judgment of conviction entered after a jury found him guilty of second-degree sexual assault of a child and from an order denying his motion for postconviction relief.  Hahn alleges that trial counsel provided ineffective assistance of counsel by failing to (1) adequately impeach the victim, (2) object to the improper bolstering of her testimony, (3) introduce an audio tape of Hahn’s interview, and (4) object to the trial court’s response to a jury question.  Hahn further contends that the trial court erred in ruling that trial counsel could not ask the victim certain questions on cross-examination.  Because we conclude that trial counsel’s performance was not deficient and the trial court did not err, we affirm.

PER CURIAM.

2013AP002244-CR           State v. Kenneth C. Hahn

DISTRICT II, Winnebago County, KAREN L. SEIFERT, Brown, C.J., Neubauer, P.J., Gundrum, J.

Attorneys: For Appellant: Schiro, John S. For Respondent: Wellman, Sally L., Gossett, Christian A.

Wisconsin Court of Appeals

Criminal Procedure
ineffective assistance

APPEAL from a judgment and an order of the circuit court for Walworth County:  DAVID M. REDDY, Judge.  Affirmed.

Chris E. DeMint was charged as a repeater with two counts of repeated sexual assault of the same child, the granddaughters of his girlfriend, in violation of Wis. Stat. § 948.025(1)(b).[1]  In a two-phase trial, a jury found him guilty and rejected his plea of not guilty by reason of mental disease or defect (NGI).  DeMint contends that defense counsel rendered ineffective assistance during the NGI phase.  We disagree and affirm the judgment of conviction and the order denying his postconviction motion seeking a new trial.

PER CURIAM.

2014AP000082-CR           State v. Chris E. DeMint

DISTRICT II, Walworth County, DAVID M. REDDY, Brown, C.J., Neubauer, P.J., Gundrum, J.

Attorneys: For Appellant: Alesia, Susan E. For Respondent: Sanders, Michael C., Necci, Daniel A.

Wisconsin Court of Appeals

Extended Supervision
revocation

APPEAL from an order of the circuit court for Milwaukee County:  WILLIAM S. POCAN, Judge.  Affirmed.

Bruce T. Davis, pro se, appeals an order dismissing his petition for a writ of habeas corpus and an order denying his motion to reconsider.  We affirm.

PER CURIAM.

2013AP001349 Bruce T. Davis v. Tim Douma

DISTRICT I, Milwaukee County, WILLIAM S. POCAN, Curley, P.J., Fine , Kessler, JJ.

Attorneys: For Respondent: Loebel, Karen A., Potter, Kevin C., Weber, Gregory M., Kassel, Jeffrey J.

Wisconsin Court of Appeals

Juveniles
JIPS – sufficiency of the evidence

APPEAL from an order of the circuit court for Milwaukee County:  DENNIS R. CIMPL, Judge.  Affirmed.

Ester M. and Alexander M., parents of sixteen-year-old Soreh M., appeal the order finding Soreh M. to be a juvenile in need of protection or services (“JIPS”).  On appeal, Ester M. and Alexander M., henceforth referred to as “the parents,” argue that:  (1) the trial court lacked competency to order conditions for them to complete before the court would consider placing Soreh M. in their home again (“conditions of return”); (2) the evidence was insufficient to support the trial court’s order; and (3) the order impinges on their right to religious freedom.  This court disagrees with the parents and affirms the trial court’s order.

2014AP001621 State v. Ester M.

DISTRICT I, Milwaukee County, Conen, J., Kessler, J.

Attorneys: For Appellant: Jensen, Jeffrey W.  For Respondent: Pipp, William

Wisconsin Court of Appeals

Search and Seizure
reasonable suspicion

APPEAL from a judgment of the circuit court for Racine County:  CHARLES H. CONSTANTINE, Judge.  Affirmed.

Terrell D. Cobbs appeals from his judgment of conviction for possession of tetrahydrocannabinols (THC), in violation of Wis. Stat. § 961.41(3g)(e).  Cobbs and two companions were stopped late one night after a reported armed robbery in the area, and in the pat-down search the officer discovered, opened, and searched Cobbs’ cigarette box.  The officer found marijuana in the box, and Cobbs was arrested.  Cobbs moved to suppress the evidence, challenging the stop and the search of the cigarette box.  After the trial court denied his motion, Cobbs pled guilty to possession of THC.  He now appeals.

2014AP000501-CR           State v. Terrell D. Cobbs

DISTRICT II, Racine County, CHARLES H. CONSTANTINE, NEUBAUER, P.J.

Attorneys: For Appellant: Robe, Melissa D. For Respondent: Weber, Gregory M., Hanson, Patricia J.

Wisconsin Court of Appeals

Search and Seizure
reasonable suspicion

APPEAL from a judgment of the circuit court for Milwaukee County:  DENNIS P. MORONEY, Judge.  Affirmed.

Andre Derrick Wingo appeals a judgment convicting him of operating a vehicle without the owner’s consent.  He contends that his rights under the Fourth Amendment were violated when a deputy sheriff stopped him to investigate whether his car windows were illegally tinted.  We affirm.

PER CURIAM.

2013AP000025-CR State v. Andre Derrick Wingo

DISTRICT I, Milwaukee County, DENNIS P. MORONEY, Curley, P.J., Kessler, Brennan, JJ.

Attorneys: For Respondent: Loebel, Karen A., Lloyd, Katherine Desmond

U.S. Supreme Court

Search and Seizure

A seizure based on a reasonable mistake of law does not violate the Fourth Amendment.

Heien contends that the rationale that permits reasonable errors of fact does not extend to reasonable errors of law, arguing that officers in the field deserve a margin of error when making factual assessments on the fly. An officer may, however, also be suddenly confronted with a situation requiring application of an unclear statute. This Court’s holding does not discourage officers from learning the law. Because the Fourth Amendment tolerates only objectively reasonable mistakes, cf. Whren v. United States, 517 U. S. 806, 813, an officer can gain no advantage through poor study. Finally, while the maxim “Ignorance of the law is no excuse” correctly implies that the State cannot impose punishment based on a mistake of law, it does notmean a reasonable mistake of law cannot justify an investigatory stop.

367 N. C. 163, 749 S. E. 2d 278, affirmed.

13-604 Heien v. North Carolina

Roberts, C.J.; Kagan, J., concurring; Sotomayor, J., dissenting.

Wisconsin Supreme Court

Sentencing
Expungement

Section 973.015 places no burden on defendants to petition for expungement within a certain period of time.

“Matasek prohibits a circuit court from re-exercising its discretion under the circumstances of the instant case.  Id., ¶43 (‘By deciding expunction at the time of sentencing, a circuit court creates a meaningful incentive for the offender to avoid reoffending.’) (emphasis added).  The circuit court here disregarded the statute’s plain language and improperly exercised its discretion by asking for a ‘personal statement,’ giving the State a chance to respond, and ultimately denying expungement.  Once the circuit court realized that expungement had not been effectuated, it had the plain duty to see to the completion of the expungement process.  Instead, the circuit court asked for a ‘personal statement’ from Hemp and gave the State a chance to respond, neither of which it had the authority to do.  Thus, the circuit court incorrectly concluded Hemp’s desire for expungement did not ‘ripen’ until he was charged with a subsequent offense.  Hemp always had the desire for expungement because its benefits reach much further than mitigating future offenses.  See Leitner, 253 Wis. 2d 449, ¶38.  Wisconsin Stat. § 973.015 does not allow for the kind of ‘wait and see’ approach taken by the circuit court here.”

Reversed and Remanded.

2013AP1163-CR State v. Hemp

Gableman, J.

Wisconsin Court of Appeals

Sentencing
COMPAS

A circuit court did not erroneously exercise its discretion in relying on the COMPAS need assessment scores to determine a defendant was a high risk despite the COMPAS assessment that he presented a low risk of reoffense.

“Samsa’s risk of violent or nonviolent reoffense was determined to be low by the COMPAS assessment.  However, the circuit court ultimately rejected that conclusion, and it was perfectly within the court’s discretion to do so.  The COMPAS is merely one tool available to a court at the time of sentencing and a court is free to rely on portions of the assessment while rejecting other portions.  Samsa’s assertion that a sentencing court should be prohibited from considering criminogenic needs when assessing a defendant’s risk of reoffense runs contrary to the principle that sentencing courts are afforded substantial discretion.  See Gallion, 258 Wis. 2d 473, ¶26.”

Affirmed.

Recommended for publication in the official reports.

2013AP2535-CR State v. Samsa

Dist. III, Marinette County, Miron, J., Hoover, J.

Attorneys: For Appellant:  Grunder, Steven D.  For Respondent: Remington, Christine A., Brey, Allen R.

Wisconsin Court of Appeals

Sentence
Sentence credit

When a convicted offender has put sentence credit at issue, the court—not the clerk—must make and explain the decision on how much sentence credit is to be awarded.

“Kitt met his burden to place the issue of sentence credit before the court by introducing the booking sheet showing that he was in custody from the time of his arrest until his sentencing on the charge he was arrested for.  The initial presumption is that Kitt is entitled to credit for all 265 days between his arrest and sentencing.  Kitt, however, acknowledged that he was not entitled to all of the time between his arrest and sentencing due to other sentences.  It was the court’s responsibility, not Kitt’s nor the clerk’s, to determine how many of the 265 days that Kitt spent in custody were for sentences or civil commitments not ‘in connection with the course of conduct for which sentence was imposed’ and to deduct that amount from the 265-day total.”

Reversed and Remanded.

Recommended for publication in the official reports.

2014AP500-CR State v. Kitt

Dist. II, Racine County, Torhorst, J., Reilly, J.

Attorneys: For Appellant: Haskell, Dustin C. For Respondent: Chiapete, W. Richard, Murphy, Anne Christenson

U.S. Court of Appeals For the Seventh Circuit

Sentencing
Sentencing after revocation

A four-month sentence imposed after revocation of supervised release was not unreasonable.

“Jones has never directed this court ‘to anything specific that the district court failed to consider or take into account.’ Pollock, 757 F.3d at 591. The crux of his argument is only that his violations were minor, and that ‘some of the things that he’s done are good,’ (Tr. 11/26/13, p.16) and that he is therefore not deserving of even the lowest end sentence and the term of supervised release imposed. But this is just the type of discretionary decision that belongs to a district court judge. Despite being given a second chance by his low-end sentence on the merits, Jones could not keep himself in line while on supervised release. The district court felt that the low-end sentence of four months imprisonment followed by thirty-six months of supervised release would get Jones’s attention and keep him on the straight and narrow. We see no reason to disagree.”

Affirmed.

13-3673 U.S. v. Jones

Appeal from the United States District Court for the Central District of Illinois, Mihm, J., Rovner, J.

Wisconsin Court of Appeals

Theft
Intent

APPEAL from a judgment and an order of the circuit court for Dunn County:  WILLIAM C. STEWART, JR., and ROD W. SMELTZER, Judges.  Reversed and cause remanded for further proceedings.

David White appeals a judgment convicting him of theft of movable property whose value exceeds $2500 but does not exceed $5000 and an order denying postconviction relief.[1]  White argues the circuit court erred by denying his motion to dismiss at the close of the State’s case.  He also argues the court erroneously exercised its discretion by excluding attorney Terry Moore’s testimony regarding legal advice he provided to White.

PER CURIAM.

2014AP000896-CR           State v. David L. White

DISTRICT III, Dunn County, WILLIAM C. STEWART, JR., ROD W. SMELTZER, Hoover, P.J., Stark and Hruz, JJ.

Attorneys: For Appellant: Harless, Sarah Mae For Respondent: Lloyd, Katherine Desmond, Wood Webster, Holly D.

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