Weekly Case Digests — March 9-13, 2015

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CIVIL

Wisconsin Court of Appeals
Administrative Law – Badger Care – attorney fees

APPEAL from an order of the circuit court for Polk County:  JEFFERY ANDERSON, Judge.  Affirmed.

DISTRICT III; Polk; JEFFERY ANDERSON, Lundsten, Higginbotham, Sherman, JJ.

2014AP001544 Annette Kessler v. Wisconsin Department of Health Services

U.S. Supreme Court
Administrative Law – Procedural requirements

The APA’s rulemaking provisions cannot be expanded by judicial decision.

This straightforward reading of the APA harmonizes with longstanding principles of this Court’s administrative law jurisprudence, which has consistently held that the APA “sets forth the full extent of judicial authority to review executive agency action for procedural correctness,” FCC v. Fox Television Stations, Inc., 556 U. S. 502, 513. The APA’s rulemaking provisions are no exception: §4 establishes “the maximum procedural requirements” that courts may impose upon agencies engaged in rulemaking. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519, 524. By mandating notice-and-comment procedures when an agency changes its interpretation of one of the regulations it enforces, Paralyzed Veterans creates a judge-made procedural right that is inconsistent with Congress’ standards.

720 F. 3d 966, reversed.

13-1041 & 13-1052 Perez v. Mortgage Bankers Ass’n.

Sotomayor, J.; alito, J., concurring; Scalia, J., concurring; Thomas, J., concurring.

U.S. Court of Appeals For the Seventh Circuit
Bankruptcy – Nondischargeable debts – slander of title

The district court erred in concluding that a state court verdict finding a debtor guilty of slander of title precluded discharge in bankruptcy.

“[T]he bankruptcy and district courts’ reasoning failed to recognize the fact that the Special Verdict form allowed the jury to respond affirmatively based on either intentional or negligent conduct. Specifically, Question 2 asked: ‘Did Michael Gerard know, or should he have known, the contents, or a part of the contents, of the Memorandum were false, a sham, or frivolous?’ (emphasis added). And Question 3 asked whether Michael had ‘reasonable ground’ for believing the truth of the contents of the lien. Our decision in Horsfall teaches that one must act with the specific intent to cause a certain result in order to prove willfulness. 738 F.3d at 774. Because the jury’s verdict could have been based on Michael’s negligence, the lower courts erred by affording the state court judgment preclusive effect. See Wheeler v. Laudani, 783 F.2d 610, 615 (6th Cir. 1986) (reversing preclusive effect of libel judgment because it was imposed based on ‘knowledge of its falsity or in reckless disregard of whether it was false’ when the latter conduct did not rise to the level of ‘willful and malicious injury’). Of course, this conclusion does not mean that the state court’s interlocutory judgment is necessarily dischargeable. With the exception of the findings of fact memorialized on the Special Verdict, the trial record is devoid of any evidence that Michael acted negligently. Still, the Special Verdict is ambiguous on that issue, so we are unable to afford this finding preclusive effect. Accordingly, we must remand this case to the bankruptcy court for it to decide whether Michael’s slander of title was ‘willful and malicious’ within the meaning of § 523(a)(6).

Reversed and Remanded.

14-1496 Gerard v. Gerard

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

U.S. Court of Appeals  For the Seventh Circuit
Bankruptcy – Free Exercise Clause – RFRA

A religious exemption to the bankruptcy code’s provisions regarding preferential transfers is not required.

“The case for a religious exception is even weaker here than in Lee and Hernandez, since what the Archdiocese asks us to do is write in an exception for purported fraud. The Court has rejected the idea that fraudulent or improper actions can be excused in the name of religion: ‘Nothing we have said is intended even remotely to imply that, under the cloak of religion, persons may, with impunity, commit frauds upon the public. … Even the exercise of religion may be at some slight inconvenience in order that the State may protect its citizens from injury.’ Cantwell v. Conn, 310 U.S. 296, 306 (1940); see also McDaniel, 435 U.S. at 643 n.* (Stewart, J., concurring) (‘[A]cts harmful to society should not be immune from proscription simply because the actor claims to be religiously inspired.’); Gonzalez, 280 U.S. at 16 (noting fraud exception to intrachurch doctrine). We do not believe that there is, nor can there be, a religious exception that would allow a fraudulent conveyance in the name of free exercise. For these reasons, we find that the Challenged Provisions are of general and neutral applicability. Assuming the Archbishop’s religious practice is substantially burdened, we find that there is a compelling interest in the application of the Challenged Provisions here that is narrowly tailored to achieve that interest.”

Affirmed in part, and Reversed in part.

13-2881, 13-3353 & 13-3495 Listecki v. Official Committee of Unsecured Creditors   Appeals from the United States District Court for the Eastern District of Wisconsin, Randa, J., Williams, J.

Wisconsin Court of Appeals
Civil Commitment – involuntary medication – sufficiency of the evidence

APPEAL from an order of the circuit court for Winnebago County:  THOMAS J. GRITTON, Judge.  Affirmed.

DISTRICT II; Winnebago;  THOMAS J. GRITTON, GUNDRUM, J.

2014AP002792-FT            Winnebago County v. Brian C.

Wisconsin Court of Appeals
Civil Commitment – extensions

APPEAL from an order of the circuit court for Dane County:  SHELLEY J. GAYLORD, Judge.  Affirmed.

DISTRICT IV; Dane; SHELLEY J. GAYLORD, KLOPPENBURG, J.

2014AP001469 Dane County v. P. H.

U.S. Court of Appeals For the Seventh Circuit
Civil Rights – Wrongful arrest

Where six persons identified the plaintiff as a participant in a brawl resulting in death, summary judgment was properly granted to the officers on plaintiff’s claim that they lacked probable cause to arrest him.

“At varying points during the investigation, six individuals identified Bailey as the assailant wearing red and black shorts in the video. Although the identifications were later shown to be false, these statements were sufficiently credible at the time that it was reasonable for the officers to rely on them. The individuals came from different backgrounds but every one of them knew Bailey in some capacity. Officer Massey, who claimed to recognize Bailey’s face, worked at Fenger and had known him for approximately eighteen months. Bramlett (Fenger student), Muhammad (assistant principal), and Ento- Nichols (security officer) each claimed to know Bailey from school. The most significant identification came from Young, who claimed to be with Bailey that afternoon but separated from him before the fight broke out.”

Affirmed.

13-3670 Bailey v. City of Chicago

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

U.S. Court of Appeals For the Seventh Circuit
Civil Rights – Qualified immunity

Where officers made a forcible blood draw prior to the U.S. Supreme Court opinion in McNeely v. Missouri, the officers are entitled to qualified immunity.

“[W]e conclude that Seiser is controlling in this case. Here, the search at issue took place in Wisconsin on February 16, 2006. At this time, approximately seven years before McNeely, Wisconsin case law recognized a per se exigency rule in blood-alcohol cases. See Bohling, 494 N.W.2d at 402.10 Thus, Deputy Richert and Sergeant Tyson faced the same lack of clearly established law that confronted the defend-ants in Seiser. As such, they are entitled to qualified immunity.”

Affirmed.

13-3079 & 14-1041 Gerhartz v. Richert

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

U.S. Court of Appeals  For the Seventh Circuit
Constitutional Law – Freedom of the press – legislative immunity

A state legislature’s decision to deny press credentials to a reporter is entitled to legislative immunity.

“Reeder’s primary argument to the contrary—that the action to deny him credentials was administrative in nature, not legislative—finds little support in the case law or in the slim record before us. Reeder’s conception of the scope of legislative immunity is too restrictive. He argues, for example, that denial of media credentials is unlike speaking, debating, voting on the legislative floor, or conducting a legislative investigation. That set of activities, he assumes, exhausts the possibilities for legislative activity, and so anything not within the set must be administrative. Yet the Supreme Court has never held that the Speech or Debate Clause is so limited. Although it has stated that the Clause does not confer immunity upon absolutely everything done in the legislature, it also has said that the Clause should receive ‘a practical rather than a strictly literal reading.’ Hutchinson v. Proxmire, 443 U.S. 111, 124 (1979).”

Affirmed.

14-1923 Reeder v. Madigan

Appeal from the United States District Court for the Central District of Illinois, Bruce, J., Wood, J.

U.S. Court of Appeals For the Seventh Circuit
Constitutional Law – Nude dancing – alcohol

At the pleadings stage, it was error to dismiss a constitutional challenge to ban on nude dancing, but correct to dismiss a challenge to the possession of alcohol in public accommodations.

“Based on this deferential standard of review, plaintiffs’ challenge fails. Dix’s asserted interests in enacting the alcohol restrictions—maintaining ‘social order, health, welfare, and safety’ and ‘preserv[ing] the “dry” status of the Village of Dix to the fullest extent permitted by law’—are undoubtedly legitimate and bear a reasonable relation to the open container and public accommodations bans. Although plain-tiffs allege that the true motivation behind the alcohol restrictions was to interfere with the successful operation of Foxxxy Ladyz, this allegation is insufficient to render a regulation invalid under rational basis review so long as some hypothetical legitimate government interest exists to support the challenged regulation. See id. Finally, because regulations survive rational basis review even if they are ‘speculation[s] unsupported by evidence,’ id., Dix was under no obligation to demonstrate concrete evidence of adverse secondary effects prior to enacting the contested ordinances. The district court was therefore correct to dismiss plaintiffs’ challenge to Ordinance Nos. 2010-04 and 2010-06.”

Affirmed in part, and Reversed in part.

14-1642 Foxxxy Ladyz Adult World, Inc., v. Village of Dix

Appeal from the United States District Court for the Southern District of Illinois, Reagan, J., Flaum, J.

U.S. Supreme Court
Constitutional Law – Separation of powers

For purposes of determining the validity of the metrics and standards, Amtrak is a governmental entity.

In concluding otherwise, the Court of Appeals relied on the statutory command that Amtrak “is not a department, agency, or instrumentality of the United States Government,” 49 U. S. C. §24301(a)(3), and the pronouncement that Amtrak “shall be operated and managed as a for profit corporation,” §24301(a)(2). But congressional pronouncements are not dispositive of Amtrak’s status as a governmental entity for purposes of separation of powers analysis under the Constitution, and an independent inquiry reveals the Court of Appeals’ premise that Amtrak is a private entity was flawed. As Amtrak’s ownership and corporate structure show, the political branches control most of Amtrak’s stock and its Board of Directors, most of whom are appointed by the President, §24302(a)(1), confirmed by the Senate, ibid., and understood by the Executive Branch to be removable by the President at will. The political branches also exercise substantial, statutorily mandated supervision over Amtrak’s priorities and operations. See, e.g., §24315. Also of significance, Amtrak is required by statute to pursue broad public objectives, see, e.g., §§24101(b), 24307(a); certain aspects of Amtrak’s day-to-day operations are mandated by Congress, see, e.g., §§24101(c)(6), 24902(b); and Amtrak has been dependent on federal financial support during every year of its existence. Given the combination of these unique features and Amtrak’s significant ties to the Government, Amtrak is not an autonomous private enterprise. Amtrak was created by the Government, is controlled by the Government, and operates for the Government’s benefit. Thus, in jointly issuing the metrics and standards with the FRA, Amtrak acted as a governmental entity for separation of powers purposes. And that exercise of governmental power must be consistent with the Constitution, including those provisions relating to the separation of powers.

721 F. 3d 666, vacated and remanded.

13-1080 Department of Transportation v. Ass’n. of American Railroads

Kennedy, J.; Alito, J., concurring; Thomas, J., concurring.

U.S. Court of Appeals  For the Seventh Circuit
Consumer Protection – TILA

A mortgage server’s practice of not crediting online payments on the day that the consumer authorizes them violates the Truth in Lending Act (TILA), 15 U.S.C. § 1601 et seq.

“The interpretation we adopt promotes an important purpose of TILA: to protect consumers against unwarranted delay by mortgage servicers. When a consumer interacts directly with a mortgage servicer (such as by delivering a check, personally paying by telephone, or filling out an electronic authorization form on a servicer’s website), it is the servicer that decides how quickly to collect that payment through the banking system. Nothing dictates when the servicer must deposit the check, use the payment information given over the phone to receive payment, or place the electronic authorization information in an ACH file and collect the funds through the EPN. The servicer is in control of the timing, and without the directive to credit the payment instrument when it reaches the servicer, the servicer could decide to collect payment through a slower method in order to rack up late fees. In contrast, when a consumer interacts directly with a third-party payor to deliver payment at a set time in the future (such as through automatic bill payment services or third-party bill payment companies), the speed of the delivery of those payments is up to the third-party payor. There is no opportunity for the servicer to delay, and thus no potential strategic behavior to address. The servicer simply credits the third-party payor’s payment when the servicer receives it, as directed by the last sentence of Official Interpretations § 1026.36(c)(1)(i).”

Reversed.

14-2220 Fridman v. NYCB Mortgage Co, LLC

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

Wisconsin Court of Appeals
Contracts – breach – sufficiency of the evidence

APPEAL from a judgment of the circuit court for Outagamie County:  MARK J. McGINNIS, Judge.  Reversed and cause remanded with directions.

DISTRICT III; Outagamie; MARK J. McGINNIS, Lundsten, Higginbotham, Kloppenburg, JJ.

2013AP002824 YP Midwest Publishing, LLC v. Wolfinger Water Service, Inc.

Wisconsin Court of Appeals
Corporations – standing – derivative claims

APPEAL from a judgment of the circuit court for Milwaukee County:  MARY M. KUHNMUENCH, Judge.  Affirmed.

DISTRICT I; Milwaukee; MARY M. KUHNMUENCH, Curley, P.J., Brennan, J., Thomas Cane

2013AP002598 Harris, NA v. White Tower, LLC

U.S. Court of Appeals  For the Seventh Circuit
Employment – Racial discrimination – employer

A contractor is not liable for racial discrimination, where it required a subcontractor not to use a disruptive employee on a particular job site.

“[T]wo problems arise with Love’s argument. First, the ‘discriminatory act,’ that Love complains of is—for Title VII purposes—his firing, which he claims is synonymous with his dismissal from the city hall project job site. However, in assessing Cullen’s level of control over Love, we determined that Cullen’s dismissal of Love from the city hall project was qualitatively different from the termination of Love’s employment relationship with UCI. In fact, we concluded above that, on the record before us, Cullen had no effect on Love’s continued employment with UCI, even if UCI happened not to have any jobs to which it could assign Love after his city hall project dismissal. Therefore, in assessing whether Cullen ‘directed the discriminatory act,’ we first question that Love’s dismissal from the city hall project can be properly characterized a ‘discriminatory act’ under Title VII.”   “Second, evidence that a de facto employer ‘directed the discriminatory act’ is not—without more—enough to establish a de facto employer–employee relationship under Title VII. In Tamayo v. Blagojevich, we considered whether the putative employer ‘directed the discriminatory act,’ but concluded that the de facto employer—the Illinois Department of Revenue (‘IDOR’)—exercised sufficient control over the plaintiff such that it was a proper defendant under Title VII. 526 F.3d at 1089. We cited to evidence in the plaintiff’s complaint alleging that IDOR controlled the plaintiff’s compensation, which was especially relevant given that the plain-tiff’s suit was based on an alleged gender-based disparity in pay. Here, while Cullen’s involvement in Love’s dismissal from the city hall project is certainly relevant to their relationship, it is not enough to overcome our analysis under the Knight factors, which shows that Cullen—in the aggregate—exercised very little control over Love in the course of their relationship. For these reasons, this final consideration does not alter our conclusion that Cullen exercised insufficient control over Love, and that Cullen is not liable as an indirect employer under Title VII.”

Affirmed.

13-3291 Love v. JP Cullen & Sons, Inc.

Appeal from the United States District Court for the Eastern District of Wisconsin, Joseph, Mag. J., Flaum, J.

U.S. Court of Appeals  For the Seventh Circuit
Employment – Race discrimination

Where a doctor had two malpractice suits against him, not covered by insurance, and had been placed on probation during his residency, a hospital’s refusal to give him staff privileges was not discrimination.

“This case is unlike Patrick, where the defendants offered a nonspecific and unexplained reason for the employment decision—simply that the plaintiff was ‘not sufficiently suited’ for the position. BDCH has articulated clear, specific, and detailed concerns over Dr. Simpson’s application for medical staff privileges. Several of the concerns were documented in the Credentials Committee’s September 24 meeting notes and corroborated by the Committee’s requests for additional information from Simpson and the state licensing board. And Dr. Eric Miller discussed many of the concerns with Simpson when Miller called Simpson to give him a ‘heads-up’ about the Committee’s concerns. This case also is unlike Abrams where there was sufficient evidence other than the ‘fit in’ comments to permit a reasonable inference that the comments were a reference to the plaintiff’s race.”

Affirmed.

14-2269 Simpson v. Beaver Dam Community Hospitals, Inc.

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

Wisconsin Court of Appeals
Employment – public employees – nonrenewal of contract

APPEAL from an order of the circuit court for Winnebago County:  BARBARA H. KEY, Judge.  Affirmed.

DISTRICT II; Winnebago; BARBARA H. KEY, Brown, C.J., Neubauer, P.J., Reilly, J.

2014AP001114 Thomas Lechnir v. UW-Oshkosh

Wisconsin Court of Appeals
Family – property division – waste – maintenance – contempt – attorney fees

APPEAL from a judgment of the circuit court for Walworth County:  ALLAN B. TORHORST, Judge.  Affirmed in part; reversed in part and cause remanded with directions.

DISTRICT I; Walworth; ALLAN B. TORHORST, Curley, P.J., Brennan, J., Thomas Cane

2013AP002341 Ellen Andrea Gibbs v. Michael Scott Gibbs

Wisconsin Supreme Court
Housing – Public housing – eviction

42 U.S.C. § 1437d(l)(6) preempts the right-to-remedy provision of Wis. Stat. § 704.17(2)(b) when a public housing tenant is evicted for engaging in “drug-related criminal activity” within the meaning of 42 U.S.C. § 1437d(l).

“We hold that Wis. Stat. § 704.17(2)(b) is preempted in the present case because it ‘”stan[ds] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”’  See Barnett Bank, 517 U.S. at 31 (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)).  We agree with the reasoning of Scarborough and Boston Housing Authority. A right to cure a lease violation that constitutes drug-related criminal activity conflicts with the federal Anti-Drug Abuse Act in two related respects.  First, a right to cure past illegal drug activity is counter to Congress’ goal of providing drug-free public housing.  Second, a right to cure past illegal drug activity is in conflict with Congress’ method of achieving that goal by allowing eviction of tenants who engage in drug-related criminal activity.”

Reversed.

2013AP2207 Milwaukee City Housing Authority v. Cobb

Ziegler, J.

U.S. Court of Appeals For the Seventh Circuit
Immigration – Removal – continuances

It was not an abuse of discretion for the ALJ to refuse a last-minute request for a continuance so that an alien being deported for entering a sham marriage could have his ex-wife testify.

“In immigration court, Bouras sought a discretionary waiver available to aliens who can show that they entered in good faith a failed marriage with a U.S. citizen. Bouras testified at the final removal hearing, but neither his ex-wife nor any other witness appeared at the hearing to testify about the marriage. At the end of the hearing, Bouras sought a continuance so that his ex-wife could testify as well. The immigration judge denied that request, saying that no ‘extenuating circumstances’ justified a continuance. The judge then found that Bouras was not eligible for the discretionary waiver because he had not established the marriage had been in good faith. The Board of Immigration Appeals up-held that decision, including the denial of a continuance. The Board endorsed the judge’s explanation and added its own reasons for concluding that Bouras’s request for a continuance was properly denied. Bouras has petitioned for review. He does not challenge the judge’s and the Board’s finding that he failed to prove his case. He argues only that he should have been granted a continuance so that his ex-wife could testify on his behalf. We deny the petition. The denial of Bouras’s last-minute request for a continuance was not an abuse of discretion.”

Petition Denied.

14-2179 Bouras v. Holder

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

U.S. Court of Appeals For the Seventh Circuit
Immigration – Removal – continuances

It was not an abuse of discretion for the ALJ to refuse a continuance in a removal proceeding, so that the alien’s wife could file a second I-130 visa petition on his behalf after the government had already denied such a petition once.

“Souley contends that the IJ abused his discretion by denying a continuance in a case like his in which a facially approvable visa petition is pending. ‘[D]iscretion should be favorably exercised,’ he urges, ‘where a prima facie approvable visa petition . . . ha[s] been submitted in the course of an ongoing removal hearing.’ Souley’s reliance on this standard is misplaced, however, because Thornton did not file the second I-130 petition before Souley moved to continue the hearing. See Mohammed v. Holder, 459 F. App’x 467, 468 (5th Cir. 2012). Thornton apparently has yet to file a second I-130 petition. It is not an abuse of discretion for an IJ to deny a continuance based on the speculative nature of an unfiled I-130 petition. See Calma v. Holder, 663 F.3d 868, 878–79 (7th Cir. 2011) (no abuse of discretion where IJ cited the ‘speculative nature’ of alien’s hope that noncitizen wife would be-come naturalized and then file and obtain alien-relative visa leading to his adjustment of status).”

Petition Denied.

14-2536 Souley v. Holder

Petition for Review of an Order of the Board of Immigration Appeals, Per Curiam.

Wisconsin Court of Appeals
Indians – sovereign immunity

APPEAL from an order of the circuit court for Vilas County:  NEAL A. NIELSEN, III, Judge.  Affirmed.

DISTRICT III; Vilas; NEAL A. NIELSEN, III, Hoover, P.J., Stark Hruz, JJ.

2014AP001692 Benjamin D. Harris v. Lake of the Torches Resort & Casino

Wisconsin Supreme Court
Professional Responsibility – Suspension

Where attorney Christopher S. Carson had sexual relations with a client, and mishandled another client’s fee, a 90-day suspension is appropriate.

“Upon careful consideration of this matter, we approve the stipulation and adopt the stipulated facts and legal conclusions of professional misconduct.  We further find that a 90-day suspension of Attorney Carson’s license to practice law in Wisconsin is an appropriate sanction for his misconduct.  Because Attorney Carson entered into a comprehensive stipulation under SCR 22.12, thereby obviating the need for the appointment of a referee and a full disciplinary proceeding, we do not impose any costs in this matter.”

2014AP2732-D OLR v. Carson

Per Curiam.

Wisconsin Supreme Court
Professional Responsibility

Where attorney Thomas J. McClure committed numerous trust account violations, a five-month suspension is appropriate.

“With respect to the appropriate level of discipline, upon careful review of the matter, we conclude that a five-month suspension is appropriate.  As the referee pointed out, Attorney McClure’s law practice now spans more than 34 years and he has no prior disciplinary history.  It is also significant to reiterate that no clients or medical providers lost any funds, and that Attorney McClure fully cooperated with the OLR and entered into a stipulation whereby he admitted virtually all the facts alleged in the complaint.  We also find it significant that the referee, who was in the best position to judge witness credibility, found Attorney McClure to be genuinely remorseful.  In addition, the OLR does not dispute the fact that Attorney McClure was faced with a multitude of personal problems during the time period at issue in this case.

2013AP2140-D OLR v. McClure

Per Curiam.

Wisconsin Court of Appeals
Torts – government contractor immunity

APPEAL from an order of the circuit court for Waukesha County:  JAMES R. KIEFFER, Judge.  Affirmed.

DISTRICT II; Waukesha; JAMES R. KIEFFER, Neubauer, P.J., Reilly, Gundrum, JJ.

2013AP002882 Dr. Randall Melchert v. Pro Electric Contractors

CRIMINAL

Wisconsin Court of Appeals
Criminal Procedure – plea withdrawal

APPEAL from judgments and an order of the circuit court for Milwaukee County:  ELLEN R. BROSTROM, Judge.  Affirmed.

DISTRICT I; Milwaukee; ELLEN R. BROSTROM, Lundsten, Higginbotham, Kloppenburg, JJ.

2014AP001153-CR State v. Kenyatta Sobeasr Clincy

Wisconsin Court of Appeals
Criminal Procedure – successive appeals

APPEAL from an order of the circuit court for Douglas County:  GEORGE L. GLONEK, Judge.  Affirmed.

DISTRICT III; Douglas; GEORGE L. GLONEK, Hoover, P.J., Stark Hruz, JJ.

2014AP001997 William Faulkner v. Reed Richardson

Wisconsin Court of Appeals
Criminal Procedure – ineffective assistance

APPEAL from a judgment and an order of the circuit court for Milwaukee County:  CHARLES F. KAHN, JR., and JONATHAN D. WATTS, Judges.  Affirmed.

DISTRICT I; Milwaukee; CHARLES F. KAHN, JR., JONATHAN D. WATTS, Curley, P.J., Kessler, Brennan, JJ.

2014AP000971-CR State v. Joshua Berrios

Wisconsin Court of Appeals
Criminal Procedure – plea withdrawal

APPEAL from a judgment and orders of the circuit court for Milwaukee County:  JEFFREY A. WAGNER, Judge.  Affirmed.

DISTRICT I; Milwaukee; JEFFREY A. WAGNER, Curley, P.J., Kessler, J., Thomas Cane

2013AP002019-CR State v. Antion Demanuel Delarosa

U.S. Court of Appeals For the Seventh Circuit
Habeas Corpus – Ineffective assistance

Where defense counsel in a state court first-degree homicide prosecution did not interview three potential defense witnesses, the state courts unreasonably held, without an evidentiary hearing, that his performance was not deficient.

“These witnesses and at least part of the information they could provide were in police reports provided to Campbell’s lawyer before trial. Toni Leonard told police that two other men—not Campbell—started the fight with the victim. This statement flatly contradicted prosecution witness Rita Butler’s testimony, as well as the State’s entire theory of the case that the fight began when Campbell attacked the victim. Ms. Leonard also told police that prosecution witness Damion Johnson participated in the beating, which contradicted Johnson’s testimony that he was not involved. Another eye-witness, Leroy Hunter, told police that prosecution witness Steven Peete hit the victim three or four times with ‘something that looked like a pipe, or a big stick.’ This statement contradicted Peete’s testimony that he was also not involved. A third eyewitness, Ieca Hunter, witnessed the beating but told police that she could not identify any of the assailants. According to an affidavit that was presented to the state courts, though, she would have been able to identify Campbell as someone present at the scene who did not participate in the beating. According to her affidavit, Campbell was standing directly in front of her house, apart from the group of men who participated in the beating, and he ‘never touched’ the victim. Neither Ms. Leonard, Mr. Hunter, nor Ms. Hunter was called to testify in Campbell’s defense at trial.”

Reversed and Remanded.

13-2634 Campbell v. Reardon

Appeal from the United States District Court for the Central District of Illinois, Baker, J., Hamilton, J.

Wisconsin Court of Appeals
Motor Vehicles – OWI – operation

APPEAL from a judgment of the circuit court for Washington County:  JAMES G. POUROS, Judge.  Affirmed.

DISTRICT II; Washington; JAMES G. POUROS, BROWN, C.J.

2014AP002269 Village of Germantown v. Arthur E. Leggett

Wisconsin Court of Appeals
Privacy – Defense

Having a legitimate reason to record a nude person is not a defense to Wis. Stats. Sec. 942.09.

“Charles Adams was convicted of capturing a representation that depicts nudity without the knowledge or consent of the person who is depicted nude, see WIS. STAT. § 942.09(2)(am)1. (2013-14), following a guilty verdict by a jury, for videotaping his sexual activity with a prostitute.  Adams argues that he had a legitimate reason to videotape the woman, to memorialize their illicit encounter in case she overdosed on drugs or later accused him of beating her up.  Adams cannot use his choice to surreptitiously videotape a nude person with whom he was engaging in criminal activity as a shield against further crimes.  The victim did not relinquish her reasonable expectation of privacy by engaging in commercial sexual activity.  Recording a nude person for legitimate reasons is not an element the State has to disprove and Adams’s reasons are no defense to the crime.  We affirm.”

Affirmed.

Recommended for publication in the official reports.

2014AP1158-CR State v. Adams

Dist. II, Winnebago County, Key, J., Neubauer, J.

Wisconsin Court of Appeals
Search and Seizure – mistake of fact – unreasonable detention

APPEAL from an order of the circuit court for Iowa County:  WILLIAM ANDREW SHARP, Judge.  Affirmed.

DISTRICT IV; Iowa; WILLIAM ANDREW SHARP, Blanchard, P.J., Lundsten, Sherman, JJ.

2014AP000463-CR           State v. Dustin A. Carstensen

Wisconsin Court of Appeals
Sentencing – discretion

APPEAL from a judgment and an order of the circuit court for Milwaukee County:  JEFFREY A. WAGNER, Judge.  Affirmed.

DISTRICT I; JEFFREY A. WAGNER, Kessler and Brennan, JJ., Thomas Cane

2014AP001205-CR State v. Diana Garcia

Wisconsin Supreme Court
Search and Seizure – Exclusionary rule – good faith exception

Even if a warrant was based on information gained from a prior illegal search, the good faith exception applies.

“Like the court of appeals, we resolve this case with a straight-forward application of our good faith jurisprudence governing police reliance on a warrant.  It provides that the good faith exception to the exclusionary rule applies to evidence obtained in objectively reasonable reliance on a search warrant issued by a detached and neutral magistrate that is ultimately found to be defective.  State v. Eason, 2001 WI 98, ¶3, 245 Wis. 2d 206, 629 N.W.2d 625.  Reliance on a warrant is objectively reasonable when: the warrant was preceded by a substantial investigation, the affidavit supporting the warrant was reviewed by either a police officer trained and knowledgeable in the requirements of probable cause and reasonable suspicion, or a knowledgeable government attorney, and a reasonably well-trained officer would not have known that the search was illegal despite the magistrate’s authorization.  Id.”

“In this case we determine that the good faith exception to the exclusionary rule applies because the evidence Scull seeks to suppress was obtained in objectively reasonable reliance on a warrant issued by a detached and neutral magistrate.  Accordingly, we conclude that the evidence should not be suppressed and affirm the court of appeals.”

Affirmed.

2011AP2956-CR State v. Scull

Bradley, J.