Weekly Case Digests — Feb. 2-6, 2015

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CIVIL

U.S. Court of Appeals For the Seventh Circuit
Civil Procedure – Arbitration

It did not exceed the arbitrators’ authority to conclude that the WFDL was preempted by federal law.

“Renard brushes these concerns aside and contends that the arbitrators exceeded their power by failing to apply the WFDL to these facts. Given the clear noncompliance with the WFDL’s notice and cure provisions, Renard assumes that the panel must have agreed with Ameriprise that federal securities laws preempt his WFDL claims. Perhaps this is the best reading of the tea leaves. And perhaps Renard is right that this was an incorrect application of the law. But even he con-cedes that the arbitrators analyzed the WFDL, and that is enough to doom his claim in federal court. It is not manifest disregard of a law to consider that law and its relation to other laws and then conclude that the law does not apply in the specific factual situation at issue. This conclusion is straightforward here, given the fact that Ameriprise presented its preemption argument to the arbitrators. They did what the parties contracted for: they resolved the issue on the basis of the laws and arguments presented to them.”

Affirmed.

14-1730 Renard v. Ameriprise Financial Services, Inc.

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

U.S. Court of Appeals For the Seventh Circuit
Civil Rights – ADA – Rehabilitation Act – prisons

Summary judgment was properly granted to the defendants on a prisoner’s claim that failure to repair his wheelchair violated the ADA and the Rehabilitation Act.

“Wagoner’s strongest argument is that by failing to repair his wheelchair, IDOC impeded his access to facilities available to non-disabled prisoners. But Wagoner has not asserted as did the prisoner in Love v. Westville Correctional Center, that he was ‘denied all access to some programs and activities, and his access to others was severely limited.’ 103 F.3d at 560. Wagoner says only that he was inconvenienced with longer waits and humiliation, as when he had to crawl off the regular van because it did not accommodate his wheelchair. These disconcerting allegations do not amount to a denial of services within the meaning of either statute. Wagoner could have claimed that the wheelchair itself is a service under either act, because it is necessary to accommodate his paraplegia, but IDOC provided Wagoner with a new wheelchair before he filed his grievance about the backrest.”

Affirmed.

13-3839 Wagoner v. Lemmon

Appeal from the United States District Court for the Northern District of Indiana, Nuechterlein, Mag. J., Wood, J.

U.S. Court of Appeals For the Seventh Circuit
Civil Rights – Due process – fabricating evidence

Where the plaintiff was released after arrest and found not guilty, he cannot sue police officers on a theory that the officers violated his due process rights by attempting to frame him.

“Subsequent to his acquittal by a jury on burglary charges, Omar Saunders-El sued members of the Rockford, Illinois police department, alleging that they planted his blood at the crime scene in an attempt to frame him. His complaint included a 42 U.S.C. § 1983 claim—contending that by fabricating evidence, the officers offended his due process rights—and Illinois state law claims for malicious prosecution and intentional infliction of emotional distress. The district court granted summary judgment for the officers on the federal claim and dismissed the state law claims without prejudice to refiling in state court. In the district court’s view, fabricating evidence does not violate a defendant’s due process rights and cannot support a § 1983 action; such an allegation must instead be brought as a state law claim for malicious prosecution, the district court reasoned. That holding is mistaken. A criminal defendant’s due process rights may be violated—actionable by way of 42 U.S.C. § 1983—when the evidence against him is fabricated. However, due process is not implicated when, as here, the defendant is released on bond following his arrest and acquitted at trial. And this rule cannot be circumvented, as Saunders-El attempts to do, simply by reframing such an allegation as a Brady claim—that is, by alleging that the police officers who supposedly fabricated the evidence failed to reveal their misconduct to the prosecution. Accordingly, we affirm the judgment of the district court, but on other grounds.”

Affirmed.

14-1570 Saunders-El v. Rohde

Appeal from the United States District Court for the Northern District of Illinois, Western Division, Kapala, J., Flaum, J.

Wisconsin Court of Appeals
Employment – workers compensation – permanent partial disability

APPEAL from orders of the circuit court for Waukesha County:  LEE S. DREYFUS, JR. and JAMES R. KIEFFER, Judges.  Affirmed.

In these consolidated worker compensation cases, Central Contractors Corporation and its insurer, Hawkeye Security Insurance Company, CPL Industries and its insurer, Wausau Underwriters Insurance, and Joe Daniels Construction and its insurer, Liberty Mutual Insurance Company, appeal orders of the circuit court affirming decisions of the Labor and Industry Review Commission (LIRC).  We affirm.

DISTRICT II; Waukesha; LEE S. DREYFUS, JR., JAMES R. KIEFFER, Brown, C.J., Reilly and Gundrum, JJ.

2014AP000205 Central Contractors Corp. v. John Blasius

Wisconsin Court of Appeals
Employment – Public employment – vested rights

Although entitled to health insurance for the rest of their lives, New Berlin police retirees do not have a vested right in having all deductibles covered.

“A close examination of Section 5.02 shows that the contracting parties meant it to be limited in duration.  Section 5.02 says the standard health insurance program they will provide to employees is ‘[e]ffective January 1, 2009.’ Within that section, the City reserves the right to change carriers for the standard coverage and offers police officers the opportunity to participate in an alternative plan.  Nothing in this section indicates an open-ended promise like the one in Section 5.03.  Section 5.02 does not promise that the standard plan taking effect on January 1, 2009, will be offered indefinitely, nor does it say that the alternative plans will always be available.  None of the broad, open-ended language in Section 5.03 is found in Section 5.02.  Simply put, Monreal’s contention that he has a vested right to the same health insurance coverage as detailed in Section 5.02 does not hold water.  Unlike Section 5.03, nothing in the CBA indicates that the contracting parties meant for the rights granted in Section 5.02 to endure beyond the contract’s expiration.  No law or policy in Wisconsin freezes a contract of limited duration in time unless its language calls for that result.  In this case, the language of the contract states that the rights granted to Monreal under Section 5.03 are vested and extend beyond the expiration of the CBA, but those contained in Section 5.02 terminate with the agreement.”

Reversed and Remanded.

Recommended for publication in the official reports.

2014AP456 Monreal v. City of New Berlin

Dist. II, Waukesha County, Haughney, J., Brown, J.

U.S. Court of Appeals For the Seventh Circuit
Employment – Discrimination – tax-component award

The district court properly awarded a prevailing employee an increased award to compensate him for his increased tax burden.

“Today, we join the Third and Tenth Circuits in affirming a tax-component award in the Title VII context. Upon Miller’s receipt of the $43,300.50 in back pay, taxable as wages in the year received, see IRS Pub. No. 957 (Rev. Jan. 2013), available at www.irs.gov/pub/irs-pdf/p957.pdf, Miller will be bumped into a higher tax bracket. The resulting tax increase, which would not have occurred had he received the pay on a regular, scheduled basis, will then decrease the sum total he should have received had he not been unlawfully terminated by Hospitality. Put simply, without the tax-component award, he will not be made whole, a result that offends Title VII’s remedial scheme. See Williams v. Pharmacia, Inc., 137 F.3d 944, 952 (7th Cir. 1998) (‘We have noted previously that “the remedial scheme in Title VII is designed to make the plaintiff whole.”’ (quoting McKnight v. General Motors Corp., 908 F.2d 104, 116 (7th Cir. 1990))).”

Affirmed.

14-1660 EEOC v. Northern Star Hospitality, Inc.

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

U.S. Court of Appeals For the Seventh Circuit
Labor – Enforcement

Absent a Rule 60(b) motion, the district court lacked jurisdiction to enforce a settlement.

“The magistrate judge was thus correct to conclude that Jones had not filed a Rule 60(b) motion and that the court lacked jurisdiction to enforce the parties’ agreement. See Kokkonen, 511 U.S. at 381–82. The question is what step should have come next: disposition of the new request for enforcement action, or something else? The answer is “something else.” Once the judge saw that Jones’s submission was not part of the litigation covered by the parties’ consents, he should have recognized that he did not have authority to issue a dispositive ruling, even one ordering dismissal for lack of subject-matter jurisdiction. Jones was bringing a new lawsuit. The magistrate judge could dispose of that new action only if it was assigned to him by a district judge and the par-ties furnished new consents. See 28 U.S.C. § 636(c)(1); FED. R. CIV. P. 73(a); Stevo v. Frasor, 662 F.3d 880, 883 (7th Cir. 2011); Silberstein v. Silberstein, 859 F.2d 40, 41–42 (7th Cir. 1988).”

Dismissed.

14-1482 Jones v. Association of Flight Attendants

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

Wisconsin Court of Appeals
Motor Vehicles – OWI — statute of limitations

Benjamin Strohman appeals a judgment of conviction for operating while intoxicated (OWI), second offense, and an order denying his postconviction motion. Strohman argues his conviction was improper as a matter of law because the applicable statute of limitations barred the State’s prosecution in 2013 for his 2005 offense. We agree and reverse. This opinion will not be published.

2014AP1265-CR State v. Strohman

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

Attorneys: For Appellant: Miller, Steven L., River Falls; For Respondent: Weber, Gregory M., Madison; Enli, Eric R., Green Bay; Lasee, David L., Green Bay

Wisconsin Court of Appeals
Motor Vehicles – OWI – warrantless blood draws – good faith exception

Tyler Pasch appeals a judgment convicting him of operating a motor vehicle with a prohibited alcohol concentration (PAC), as a second offense. Pasch argues the circuit court erred by denying his suppression motion and motion for reconsideration. Pasch’s case is directly controlled by the recent Wisconsin Supreme Court decision in State v. Foster, 2014 WI 131, __ Wis. 2d __, 856 N.W.2d 847. For the reasons explained below, we affirm. This opinion will not be published.

2014AP1193-CR State v. Pasch

Dist III, Pierce County, Boles, J., Stark, J.

Attorneys: For Appellant: Lanning, Chad A., West Bend; For Respondent: Weber, Gregory M., Madison; Froelich, Sean E., Ellsworth; O’Sullivan, Rory E., Ellsworth

Wisconsin Court of Appeals
Municipalities – Zoning

Short-term rental is a permitted use for property in a single-family residential district under the City of Cedarburg’s zoning code.

“The present case is almost exactly like Harding.  While the short-term occupants of the homes here will not have a long-term ownership interest as in Harding, they will purchase a short-term lease.  Other than this difference, the cases are essentially the same.  The properties here are designed for use by one family, just like the property in Harding.  The Ordinance here permits single-family dwellings in a single-family residential zone, just like in Harding.  And, just like in Harding, only one family will use each home at a time.  The Ordinance here, like the one in Harding, does not require occupancy over a period of time.  We must construe the Ordinance in favor of the free use of property and cannot impose time/occupancy restrictions or requirements that are not in the zoning scheme.”

Affirmed.

Recommended for publication in the official reports.

2014AP62 Heef realty & Investments, LLP, v. City of Cedarburg

Dist. II, Ozaukee County, Malloy, J., Neubauer, J.

Wisconsin Supreme Court
Professional Responsibility – Reinstatement

Where attorney Jeffrey A. Reitz has fulfilled all the requirements imposed at his suspension, his license is reinstated.

“We conclude that the referee’s findings support a determination that Attorney Reitz has met his burden to establish by clear, satisfactory, and convincing evidence that he has met all of the standards required for reinstatement.  The referee found that Attorney Reitz has not practiced law during the period of his suspension; that he has fully complied with the terms of the order of suspension; that he has maintained competence and learning in the law; that his conduct since the suspension has been exemplary and above reproach; and that he has a proper understanding of and attitude towards the standards that are imposed upon members of the bar and will act in conformity with those standards.  The referee found that Attorney Reitz can safely be recommended to the legal profession, the courts, and the public as a person fit to be consulted by others and to represent them and otherwise act in matters of trust and confidence and in general to aid in the administration of justice as a member of the bar and as an officer of the courts.  The referee also found that Attorney Reitz has fully complied with the requirements as set forth in SCR 22.26.”

2010AP1576-D & 2011AP1764-D OLR v. Reitz

Per curiam.

Wisconsin Court of Appeals
Property – foreclosure — summary judgment

Paul and Mazie Fretschel, pro se, appeal an order dismissing a counterclaim in a foreclosure action. We affirm. This opinion will not be published.

2014AP681 Wells Fargo Bank NA v. Fretschel et al.

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

Attorney: For Appellant: Fretschel, Paul J., pro se; For Respondent: Heinen, Gregory, Milwaukee

Wisconsin Court of Appeals
Trusts and Estates — powers of attorney — breach of fiduciary duty

Charles Poler, personal representative of the Estate of Louis Thunder (Estate), appeals a summary judgment in favor of Gerald Jacobson, Sr., and Sheila Houle. The Estate argues the circuit court erroneously construed the provisions of two power-of-attorney documents. We reject the Estate’s argument and affirm. This opinion will not be published.

2014AP615 Poler v. Jacobson, et al.

Dist III, Forest County, Kawalski, J, Per Curiam

Attorneys: For Appellant: Kennedy, Robert A., Jr., Crandon; For Respondent: Wiesneske, Lawrence J., Rhinelander; Reese, Kirk, Rhinelander

CRIMINAL

Wisconsin Court of Appeals
Criminal Procedure – ineffective assistance

APPEAL from a judgment and an order of the circuit court for Kenosha County:  JASON A. ROSSELL, Judge.  Affirmed.

Timothy Laurie appeals from a judgment, entered upon a jury’s verdict, convicting him of second-degree sexual assault of a child and from an order denying his motion for postconviction relief.  We reject his contention that trial counsel was ineffective and affirm.

DISTRICT II; Kenosha; JASON A. ROSSELL, Brown, C.J., Neubauer, P.J., and Reilly, J.

2014AP000185-CR           State v. Timothy M. Laurie

Wisconsin Court of Appeals
Criminal Procedure — ineffective assistance

Annette Morales-Rodriguez appeals a judgment entered on a jury verdict convicting her of two counts of first-degree intentional homicide with the use of a dangerous weapon, contrary to Wis. Stat. § 940.01(1)(a) & (b) and 939.63(1)(b) -*(2011-12), and an order denying her postconviction motion seeking a new trial based on alleged ineffective assistance of counsel. Morales-Rodriguez contends the trial court erred when it denied, without a hearing, her motion alleging she was denied her structural constitutional right to have the attorney of her choice after her three attorneys, who originally volunteered to represent her pro bono, withdrew from the case due to potential conflicts of interest. She also contends that the three attorneys’ withdrawal from her representation constituted ineffective assistance of counsel. Because Morales-Rodriguez forfeited her right to appeal the right to counsel of her choice by not raising this issue earlier, and her motion did not allege facts sufficient to warrant an evidentiary hearing on her claim of ineffective assistance of counsel, we affirm. Not recommended for publication in the official reports.

2014AP1438-CR State v. Morales-Rodriguez

Dist I, Milwaukee County, Borowski, J., Cane, J.

Attorneys: For Appellant: Pinix, Matthew S., Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; O’Brien, Daniel J., Madison

U.S. Court of Appeals For the Seventh Circuit
Criminal Procedure – Appeal

A prisoner cannot challenge his designation as a career offender through FRCP 36.

“Williams contends on appeal that Fed. R. Crim. P. 36 allows courts to correct clerical errors at any time, but his sentence is not a clerical error; the judgment accurately carries out the district judge’s decision. Rule 36 permits a district court to ensure that the record accurately reflects judicial decisions but does not authorize a challenge to the substance of those decisions. See United States v. McHugh, 528 F.3d 538 (7th Cir. 2008). Nor does the presentence report contain a clerical error. Whether the author of the report accurately understood the nature of one of Williams’s older convictions (which affects whether he is a career offender) is a substantive matter. Defendants who disagree with the contents of a PSR must object before or at sentencing; only if a timely objection is made must a district judge state on the record (if the issue affects the sentence) whether the PSR is correct. Fed. R. Crim. P. 32(f)(1), (i)(3). Williams raised the issue indirectly at sentencing but did not ask for a correction under Rule 32 and did not pursue the matter on appeal. It is far too late to revisit this subject.”

Dismissed.

14-3570 U.S. v. Williams

Appeal from the United States District Court for the Northern District of Illinois, Gettleman, J., Per Curiam.

Wisconsin Court of Appeals
Criminal Procedure — plea withdrawal — newly discovered evidence

Patrick Peterson appeals an order denying a postconviction motion seeking reversal of Peterson’s conviction for shooting his father. We reject Peterson’s contention that he is entitled to withdraw his plea based on newly discovered evidence and affirm the order. This opinion will not be published.

2014AP320 State v. Peterson

Dist III, Douglas County, Glonek, J., Per Curiam

Attorneys: For Appellant: Gramstrup, Chris A., Superior; For Respondent: Balistreri, Thomas J., Madison; Blank, Daniel W., Superior

Wisconsin Court of Appeals

Criminal Procedure — plea withdrawal — right to counsel

Thongsavahn Rodthong, pro se, appeals the judgment of conviction for two counts of robbery (use of force), as a party to the crimes, with the use of a dangerous weapon, contrary to Wis. Stat. §§ 943.32(1)(a), 939.05, and 939.63(1)(b) (2009-10).[1] He also appeals the orders denying his postconviction motions for plea withdrawal and for the appointment of counsel. We affirm. This opinion will not be published.

2013AP2240-CR State v. Rodthong

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

Attorneys: For Appellant: Rodthong, Thongsavahn, pro se; For Respondent: Loebel, Karen A., Milwaukee; Lloyd, Katherine Desmond, Madison

Wisconsin Court of Appeals
Criminal Procedure — plea withdrawal

Lavonte M. Price appeals the judgment convicting him of one count of robbery with the threat of force, contrary to Wis. Stat. § 943.32(1)(b) (2011-12), and one count of attempted robbery as party to a crime, contrary to Wis. Stat. §§ 943.32(1)(a), 939.32, & 939.05 (2011-12).[1] He also appeals the order denying his postconviction motion.[2] On appeal, Price argues that his guilty pleas were involuntary and his convictions must be reversed because the trial court impermissibly participated in plea negotiations. We disagree and affirm. Not recommended for publication in the official reports.

2014AP1189-CR State v. Price

Dist I, Milwaukee County, Kahn, J., Curley, P.J.

Attorneys: For Appellant: Paulson, Randall E., Milwaukee; For Respondent: Kassel, Jeffrey J., Madison; Loebel, Karen A., Milwaukee

U.S. Court of Appeals For the Seventh Circuit
Criminal Procedure – Habeas corpus

Where the district court sentenced the defendant based on a mistake as to the mandatory minimum, the defendant may seek relief under 28 U.S.C. 2255.

“The plea agreement did not spell out a specific procedural path for such relief, but we are confident both parties meant to allow for the possibility if Dorsey were to turn out as it in fact did. An alternate route would have been for Bai-ley to have filed an apparently futile appeal but to have asked that it be stayed pending a final decision in Dorsey, but that is not necessarily the only available path. Again, § 2255 allows a federal prisoner to seek to vacate or correct a sentence imposed in violation of the laws of the United States. Sentencing a defendant based on a court’s mistaken belief about the applicable statutory penalties is an example, even though such issues must ordinarily be raised in a direct appeal.”

Reversed and Remanded.

13-3229 U.S. v. Bailey

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

U.S. Court of Appeals For the Seventh Circuit
Firearms – Jury instructions

Where the defendant initially answered that he had been convicted of a crime of domestic violence, and then changed his answer, after the computer prompted him to review his answers, the court properly gave an ostrich instruction at his trial for knowingly making a false statement in connection with a firearm.

“[T]he computerized version of the form invited Pierotti to learn more about question 11-i once the computer sent the form back to him for his review. The instructions link was clearly presented, in regular-size type, and located immediately below the question Pierotti claims gave him so much trouble. Given the context of his choice to change his answer—recall his statement that he initially clicked ‘Yes’ because he remembered his prior misdemeanor—and viewing this evidence in the government’s favor, it was not error for the district judge to provide the ostrich instruction over Pierotti’s objection.”

Affirmed.

13-3096 U.S. v. Pierotti

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

Wisconsin Court of Appeals
Search and Seizure — reasonable suspicion – dissipation

Rachel Huck appeals a judgment convicting her of possession of THC, as a party to a crime. Huck argues the circuit court erred by denying her suppression motion. She concedes the officer who stopped her vehicle had reasonable suspicion for the stop based on his knowledge that her driver’s license was suspended. However, she argues reasonable suspicion dissipated after the officer saw that the person driving the vehicle was a male, and the officer was therefore required to terminate the stop without asking the driver for identification. Under State v. Williams, 2002 WI App 306, 258 Wis. 2d 395, 655 N.W.2d 462, we conclude the officer was entitled to ask the driver of Huck’s vehicle for his driver’s license, even after the reasonable suspicion for the stop had dissipated. We therefore affirm. This opinion will not be published.

2014AP2120-CR State v. Huck

Dist III, Barron County, Bitney, J., Hoover, P.J.

Attorneys: For Appellant: Hinkel, Andrew, Madison; For Respondent: Berg, Russell E., Barron; Weber, Gregory M., Madison; Beranek, Angela L., Barron

Wisconsin Court of Appeals
Search and Seizure — stop and detention

Joseph Ingram appeals from a judgment of conviction, entered on his guilty plea, for one count of possession of narcotic drugs, contrary to Wis. Stat. § 961.41(3g)(am) (2011-12). Ingram argues that the trial court erroneously denied his motion to suppress evidence. We affirm. This opinion will not be published.

2014AP1120-CR State v. Ingram

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

Attorneys: For Appellant: Borkowicz, Brian, West Bend; For Respondent: Loebel, Karen A., Milwaukee; Perlman, David H., Madison

Wisconsin Court of Appeals
Sentencing — accurate information — new factors

Jose S. Soto, Sr., pro se, appeals an order denying his motion for sentence modification. Soto argues: (1) that he received ineffective assistance of trial counsel at the sentencing hearing; (2) that his due process right to be sentenced based on accurate information was violated; and (3) his 1982 diagnosis of paranoid schizophrenia is a new factor warranting sentence modification. We affirm. This opinion will not be published.

2013AP1742-CR State v. Soto

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

Attorneys: For Appellant: Soto, Jose S., Sr., pro se; For Respondent: Loebel, Karen A., Milwaukee; Moeller, Marguerite M., Madison

U.S. Court of Appeals For the Seventh Circuit
Sentencing – Reasonableness

It was not unreasonable for the district court to impose a sentence for escape that was consecutive to the sentence for the underlying crime.

“Conley is in effect arguing for a ‘freebie.’ Because the maximum term allowed for escape falls far short of Conley’s bank robbery sentence, the imposition of a concurrent sentence would negate virtually all punitive force of a sentence for escape. With nothing to lose, that result would encourage defendants who face lengthy prison sentences to attempt escape. This is particularly true if, like Conley, they have already maxed out at criminal history category VI, or are already classified as career offenders. We cannot countenance this result.”

Affirmed.

14-1455 U.S. v. Conley

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