Weekly Case Digests — Nov. 30-Dec. 4, 2015

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7^th Circuit Court of Appeals

7^th Circuit Court of Appeals

Case No.: 15-1736

Case Name: Planned Parenthood of WI v. Brad D. Schimel

Officials: POSNER, MANION, and HAMILTON, Circuit Judges

Pertinent Practice Areas: Abortion Law – Constitutionality

Permanent injunction granted preventing enforcement of WI statute that placed limitations on doctors performing abortions within the state.

“These studies have found that the rate of complications is below 1 percent; in the case of complications requiring hospital admissions it is one-twentieth of 1 percent. The rate of complications for second-trimester surgical abortions is slightly higher—1.3 percent. Anna C. Frick et al., “Effect of Prior Cesarean Delivery on Risk of Second-Trimester Surgical Abortion Complications,” 115 Obstetrics & Gynecology 760 (2010). In the five-year period 2009 to 2013, only 12 women who had abortions at clinics in Wisconsin experienced complications requiring transfer from clinic to hospital. Fifteen additional women who had received abortions at a Planned Parenthood clinic and left the clinic without apparent complications later sought treatment at a hospital. The record does not contain a comparable figure for the AMS clinic. There is no evidence that any of these women received inadequate hospital care because the doctors who had performed their abortions lacked admitting privileges”

Affirmed.

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7^th Circuit Court of Appeals

Case No.: 15-1312

Case Name: United States of America v. Juan Larios-Buentello

Officials: FLAUM, EASTERBROOK, and HAMILTON, Circuit Judges.

Pertinent Practice Areas: Criminal – Immigration – Illegal Reentry

Court did not err in entering conviction against appellant for illegal reentry despite assertion of §1326(d) defense.

“The district court held that Larios-Buentello had not established a defense under §1326(d)—that, indeed, none of the three paragraphs of subsection (d) had been met, and every circuit that has considered the issue has held that an alien must meet all three. See, e.g., United States v. SotoMateo, 799 F.3d 117, 120 (1st Cir. 2015); United States v. Torres, 383 F.3d 92, 98–99 (3d Cir. 2004). Larios-Buentello had not appealed the IJ’s removal order to the Board of Immigration Appeals and thus had not satisfied paragraph (d)(1); he had not been deprived of the opportunity for judicial review and thus had not satisfied paragraph (d)(2); and it is not “fundamentally unfair” to refrain from advising an administrative litigant of an opportunity to seek relief that the agency sincerely believes to be unavailable. No one is entitled to have an adverse litigant announce the opposite of its actual legal position. See United States v. Santiago-Ochoa, 447 F.3d 1015, 1019–20 (7th Cir. 2006) (aliens do not have a constitutional right to be notified even of those discretionary remedies that the agency believes to be available); see also, e.g., Soto-Mateo, 799 F.3d at 123.”

Affirmed.

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7^th Circuit Court of Appeals

Case No.: 14-2622

Case Name: Robert Smith v. CTA

Officials: EASTERBROOK, SYKES, and HAMILTON, Circuit Judges

Pertinent Practice Areas: Employment Law – Title VII – Wrongful Termination

Appellant fails to establish a prima facie case of discrimination.

“But no evidence supports Smith’s theory that the CTA regularly channeled investigations of white employees to the operations departments while keeping investigations of nonwhite employees under the auspices of the EEO Unit. It’s undisputed that the EEO Unit was understaffed in 2006– 2007, and some sexual-harassment investigations were conducted by managers in the operations department. Of the eight identified cases in which this occurred, however, four involved black employees and two involved Hispanics. A jury could not reasonably infer discriminatory intent from this evidence.”

Affirmed.

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7^th Circuit Court of Appeals

Case No.: 15-1269

Case Name: Mid-Central Illinois Regional v. Con-Tech Carpentry, LLC

Officials: WOOD, Chief Judge, and POSNER and EASTERBROOK, Circuit Judges

Pertinent Practice Areas: Employment Law – ERISA – Delinquent Contributions

Defendant-Respondent failure to respond to pleadings results in default judgment. Judge did not abuse discretion.

“Con-Tech filed a Rule 60(b) motion on January 15. The motion also invoked Rule 55(c), but too late. Con-Tech told the district judge that it had not ignored the suit but had instead started negotiating with plaintiffs’ lawyers, seeking a satisfactory settlement. The judge replied that Con-Tech may not have ignored the plaintiffs’ demands, but that it had ignored the litigation. The judge observed that it is impossible to handle a suit in which a litigant unilaterally decides to march to the beat of its own drum. A defendant can both file an answer and try to negotiate a settlement; doing the latter does not eliminate the need to do the former. The judge denied the Rule 60(b) motion, and Con-Tech appealed.”

Affirmed

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7^th Circuit Court of Appeals

Case No.: 15-1242

Case Name: Anthony Zimmerman v. Jeffrey Doran

Officials: MANION, ROVNER, and HAMILTON, Circuit Judges.

Pertinent Practice Areas: Violation of Due Process – Trespass – Summary Judgment

Appellant Rule 56 submission failed to identify undisputed issues of fact, summary judgment was proper.

“Zimmerman provides no case law setting forth the relative rights of a property owner and the possessor of a timber deed. Under Illinois law, the criminal offense of trespass is committed when a person “… enters upon the land of another, after receiving, prior to entry, notice from the owner… that the entry is forbidden” or “remains upon the land of another, after receiving notice from the owner … to depart.” 720 ILCS 5/21‐ 3(a). It is undisputed that Zimmerman received notice to depart the property, both from the owner in the cease and desist letter and in texts, and from the officers relaying the information to him directly. He chose to remain on the property against the owner’s wishes and therefore falls within the plain language of the criminal statute. Moreover, before arresting Zimmerman, the defendants attempted to sort out the relative legal rights, including contacting the state’s attorney for advice as to whether the actions constituted criminal trespass. We have held that “‘[c]onsulting a prosecutor may not give an officer absolute immunity from being sued for false arrest, but it goes far to establish qualified immunity. Otherwise the incentive for officers to consult prosecutors—a valuable screen against false arrest—would be greatly diminished.’” Fleming v. Livingston Cnty., Ill., 674 F.3d 874, 881(7th Cir. 2012), quoting Kijonka v. Seitzinger, 363 F.3d 645, 648 (7th Cir. 2004).

Affirmed

7^th Circuit Court of Appeals

Case No.: 14-3354

Case Name: Keith Curtis v. Costco Wholesale Corporation

Officials: WOOD, Chief Judge, and BAUER and EASTERBROOK, Circuit Judges

Pertinent Practice Areas: Failure to Accommodate – FMLA & ADA Violations – Summary Judgment

Appellants fails to show company interfered with FMLA rights and violated provision of ADA.

“We entertained and rejected a similar “failure-to-reinstate” claim in James v. Hyatt Regency Chicago, 707 F.3d 775 (7th Cir. 2013). There, the plaintiff based his FMLA interference and retaliation claims on his employer’s failure to reinstate him when he submitted a doctor’s note releasing him to “light duty.” Id. at 781. In rejecting plaintiff’s claims and affirming summary judgment for the defendant employer, we held the employer’s refusal to reinstate the plaintiff did not constitute a materially adverse employment action. Id. at 782. “Employers are under no obligation to restore an employee to his or her position if the employee is unable to perform the essential functions of the job.” Id. at 781.”

Affirmed.

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7^th Circuit Court of Appeals

Case No.: 14-2272

Case Name: Lester Dobbey v. Jacqueline Mitchell-Lawshea & Michael Dangerfield

Officials: WOOD, Chief Judge, and POSNER and EASTERBROOK, Circuit Judges.

Pertinent Practice Areas: Prisoner Treatment – Deliberate Indifference – Cruel and Unusual Punishment      

Failure to treat prisoner’s infected tooth after knowledge of infection amounted to deliberate indifference, warrants reversal of summary judgment.

“In granting summary judgment in favor of the defend‐ ants, the district judge failed to appreciate the gravity of a tooth abscess or attach sufficient weight to the slack response of prison staff to Dobbey’s medical problem. A tooth abscess is not a simple toothache. It is a bacterial infection of the root of the tooth, and it can spread to the adjacent gum and beyond—way beyond. It is often painful and can be dangerous. Loss of the tooth is common, though can some‐ times be prevented by prompt detection and treatment of the abscess. Dobbey does not connect his abdominal woes to the abscess, but he may well not have known that stomach pain, nausea, and vomiting are common consequences of a tooth abscess and so may have been caused or aggravated by his abscess.”

Reversed and Remanded

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7^th Circuit Court of Appeals

Case No.: 14-2287; 14-2150

Case Name: Godfrey & Kahn v. Lac Du Flambeau Band of Lake Superior Chippewa Indians et al

Officials: FLAUM, RIPPLE, and WILLIAMS, Circuit Judges.

Pertinent Practice Areas: Bond Indentures – Injunction

Injunction preventing tribal court action from Tribal entities in long standing litigation granted, injunction preventing injunctive relief to law firm appellant reversed.

“Here, where it is clear that Godfrey was intimately involved in the negotiations leading to, and the documents embodying, the bond transaction, and where the Tribal Entities do not take exception to the conclusion that Godfrey would be bound by the forum selection clauses in the Bond Documents, we believe that the concepts of affiliation and mutuality are met. Moreover, we believe that this is a particularly appropriate case to allow a nonparty to invoke a forum selection clause. Godfrey was not simply counsel to the Tribal Entities, it was bond counsel to the transaction. As one commentator has observed, “[a]lthough bond counsel is usually retained by the issuer, bond opinions must be completely objective, since they will not serve the function of facilitating the sale of bonds unless they are accepted as reliable in the bond market.” 2 James A. Coniglio & M. David Gelfland, State & Federal Government Debt Financing § 16.16 (2d ed. 2015). Indeed, some courts have recognized that “an attorney who issues an opinion letter for the purpose of inducing a non-client to purchase municipal notes or bonds can be liable for negligent misrepresentation when the opinion letter contains material misstatements of fact.” Mohaffy, Rider, Windholz & Wilson v. Central Bank of Denver, 892 P.2d 230, 233 (Col. 1995);76 cf. Restatement (Third) of the Law Governing Lawyers § 51(2)(a) (2000) (stating that a lawyer owes a duty of care to a nonclient when the lawyer or his client “invites the nonclient to rely on the lawyer’s opinion…and the nonclient so relies”).

Affirmed in Part. Reversed in Part.

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7^th Circuit Court of Appeals

Case No.: 14-2246

Case Name: United States of America v. Qubid Coleman

Officials: WOOD, Chief Judge, ROVNER, Circuit Judge, and SHAH, District Judge.

Pertinent Practice Areas: Criminal – Pleas & Sentencing – Sentence Conditions

Court error in inclusion of conditions held to be impermissibly vague simply calls for resentencing as related to conditions of supervised release.

“Coleman was sentenced in May 2014. Since then, “several decisions of this court have clarified the analysis required to decide what conditions [of supervised release] to impose in what circumstances.” United States v. Harper, —F.3d —, 2015 WL 6839542, at *3 (7th Cir. Nov. 6, 2015). Before imposing a term of supervised release, the sentencing court should give advance notice of the conditions being considered, and when imposing the conditions, the court must justify the conditions by an adequate statement of reasons reasonably related to the § 3553(a) factors. Kappes, 782 F.3d at 842–45. These procedural safeguards were omitted from Coleman’s sentencing, and, as a substantive matter, certain conditions imposed on Coleman were impermissibly vague (e.g., “the defendant shall not associate with any persons engaged in criminal activity”). See id. at 849 (citing United States v. Thompson, 777 F.3d 368, 376–77 (7th Cir. 2015)). The government concedes the error and also waives any reliance on Coleman’s appellate waiver to avoid a remand. Coleman requests a remand for full resentencing. We have described prison and supervised release as substitutes as well as complements, and therefore, it makes sense to remand for a full resentencing to allow the district judge to reexamine the entire sentence. United States v. Downs, 784 F.3d 1180, 1182 (7th Cir. 2015) (“When a sentence consists of more than one form of punishment, such as prison, a fine, restitution, and supervised release, and one of the forms is as in this case altered by the appellate court, it cannot be assumed that the others should be unaffected.”).

7^th Circuit Court of Appeals

Case No.: 15-1804

Case Name: Mathew Neisler v. Robert Tuckwell

Officials: WOOD, Chief Judge, and POSNER and ROVNER, Circuit Judges.

Pertinent Practice Areas: Employment Law – ADA Violations – Summary Judgment

7^th Circuit Court of Appeals

Case No.:15-1291

Case Name: Kimberly Moreland v. Jeh Johnson

Officials: WOOD, Chief Judge, and POSNER and WILLIAMS, Circuit Judges.

Pertinent Practice Areas: Employment Law – Retaliatory Termination – Title VII

District judge instruction to have appellant file separate complaint instead of consolidating separate complaint with original and subsequently dismissing her claim was court error warranting reversal.

“So what to do to obtain relief for this new unlawful con‐ duct? She couldn’t ask her lawyer; she didn’t have a lawyer. So she told the administrative law judge about the problem (her original proceeding was still pending before him), and he advised her to submit a second complaint. She did that, but DHS dismissed it on the ground that instead of filing a new charge she should have added the new charge (retaliation) to her original complaint (the one that had kicked off her original charge of discrimination)—as she could still have done because the administrative law judge had not yet ruled on the original claim. See 29 C.F.R. § 1614.106(d); EEOC Management Directive 110, ch. 5, §§ IV(D)(1), IV(D)(3)(a) (Nov. 9, 1999). But she was pro se and hadn’t known how to litigate her new charge. That’s why she’d consulted the administrative law judge and, as we noted, he had told her to institute a new action, which she did. The wording of DHS’s dismissal of her second suit—the retaliation suit, which the administrative law judge had told her was the proper way to present her claim of retaliation—did not indicate whether she could amend her initial complaint given that she’d filed it two years before and had already had her hearing on it. In fact DHS never told her that she could amend her initial complaint; it just told her that her new claim “must be raised within the underlying com‐ plaint.” She had already “raised” it, she thought, with the administrative law judge.

Reversed and Remanded

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7^th Circuit Court of Appeals

Case No.: 15-1208

Case Name: United States of America v. Ronald Douglas

Officials: FLAUM, WILLIAMS, and HAMILTON, Circuit Judges.

Pertinent Practice Areas: Criminal – Conditions of Supervised Release

Courts imposition of strict conditions of supervised release were valid as applied.

“The strict liability concerns from Thompson and Kappes are not present here. The condition imposed for Douglas states that he shall not knowingly associate with any persons engaged in criminal activity or with any person convicted of a felony. The condition also specifies that Douglas may seek permission from his probation officer if he wants to associate with convicted felons. Consider, for example, the possibility that he might want to associate with others with felony records in a job, a church, or an alcohol abuse treatment pro‐ gram. Similarly, if Douglas genuinely did not understand what is meant by “associate,” he should have raised the is‐ sue with the district court. He did not. With the knowledge requirement and ample room for exceptions, the district court did not plainly err by imposing this condition.”

Affirmed.

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7^th Circuit Court of Appeals

Case No.: 14-3203

Case Name: Francis T. Foster v. Principal Life Insurance Company

Officials: BAUER, KANNE, and ROVNER, Circuit Judges.

Pertinent Practice Areas: Derivative Suit – Validity of Claim

Appellant suit improperly dismissed for classification of derivative suit.

“In Count IV of the complaint, titled “Tortious Interference with Prospective Economic Advantage and Attorney-Client Relationship,” Foster alleged that he had an ongoing attorney client relationship with the Pace Plan committees based on the 2003 resolutions of those committees. That relationship began in the 1980s and Foster reasonably expected his representation to continue until the Pace Plan committees voted to revoke the arrangement. Foster also alleged that Principal, as trustee for the Pace Plans, knew of the arrangement and had in fact been disbursing Foster’s monthly fees on behalf of the Pace Plans at the direction of the Pace Plan committees. As trustee, Principal had a fiduciary duty to follow the terms of the Pace Plan documents, and those documents required the trustee to follow the directives of the Plan committees. Instead, Foster asserted, Principal “intentionally and improperly interfered with Foster’s representation of the Pace Plans by implementing the unauthorized instructions of an unidentified Pace employee to stop paying Foster’s monthly fees on behalf of the Pace Plans.” R. 23, ¶ 69. Principal persisted in this course of action even when Foster produced conclusive proof that the Pace Plan committees had not authorized the stop-payment order. These acts of interference, he alleged, resulted in the destruction of his longstanding attorney-client relationships with the Pace Plans and their committee members. That, in turn, caused him to lose income and to suffer damage to his professional reputation. Under the standards articulated in Voyles, these allegations adequately state a claim for tortious interference with prospective economic advantage under Illinois law.”

Vacated and Remanded

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7^th Circuit Court of Appeals

Case No.: 14-2860

Case Name: United States of America v. Gregory Sanford

Officials: WOOD, Chief Judge, and POSNER and WILLIAMS, Circuit Judges.

Pertinent Practice Areas: Criminal – Search & Seizure – Conditions of Supervised Release

Passenger has standing to challenge validity of vehicle search. Search of rental vehicle lawful and reasonable given officer suspicions and criminal history of vehicle occupants. Conditions of supervised release reversed.

7^th Circuit Court of Appeals

Case No.: 14-1836

Case Name: Chester O’Quinn V. Tom Spiller

Officials: FLAUM, KANNE, and SYKES, Circuit Judges.

Pertinent Practice Areas: Criminal – Constitutional Error – Pretrial Delay

Delays caused by counsel for Appellant attributed to appellant, not the court. Delay did not prejudice appellant.

“O’Quinn argues that his case falls somewhere in the middle of this spectrum because the State was negligent in allowing the 28 continuances. This argument overlooks the basic principle that the actions and decisions of defense counsel are attributable to the defendant, see Brillon, 556 U.S. at 92, and in O’Quinn’s case almost all of the delay resulted from continuances requested by his own lawyer. O’Quinn apparently disagreed with his attorney’s continuance re‐ quests, but that doesn’t transfer the responsibility for the de‐ lay to the State. Unless the State is responsible for the delay in bringing the defendant to trial, there can be no speedy‐ trial violation. Id. at 93–94.

Affirmed

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7^th Circuit Court of Appeals

Case No.: 14-1780

Case Name: LuAnn Ziebell v. The Fox Valley Workforce Development Board Inc.

Officials: ROVNER and SYKES, Circuit Judges, and ANDREA R. WOOD, District Judge.

Pertinent Practice Areas: Qui Tam – Retaliatory Termination

Appellant fails to show she is the original source of information to meet public disclosure exception , fails to provide evidence of retaliation.

“Ziebell’s claim rests on the Board’s improper practice of provided services directly through Workforce Economics. That’s precisely what DWD found in its audit, so her qui tam claim is plainly “based on” the DWD’s public disclosure of this information. Ziebell doesn’t argue otherwise. Instead, she tries to bring herself within the original-source exception. “The original-source exception requires relators to establish that they have (1) ‘direct’ knowledge of fraudulent activity; (2) ‘independent’ knowledge of fraudulent activity; and (3) voluntarily provided their information to the government before filing a qui tam action.” Id. at 917 (quoting 31 U.S.C. § 3730(e)(4)(B)). Ziebell hasn’t come close to satisfying these requirements. Although it may be reasonable to infer that she had direct knowledge of the Board’s relationship with Workforce Economics as a general matter, she hasn’t shown that she had direct and independent knowledge—apart from the DWD audit report—that this relationship created a problem of regulatory compliance. More to the point, she hasn’t shown that she had direct and independent knowledge of any fraudulent-claims activity by the Board. Finally, it’s clear that Ziebell did not voluntarily provide any information about her allegations to the federal government before filing suit. Indeed, she admitted in her deposition that it was the DWD report that “started some of the ball rolling” regarding the regulatory dilemma created by the use of an in-house service provider and that she talked to “no one” in the federal government about this until after she filed suit. Ziebell’s qui tam claim clearly falls within the public-disclosure bar and must be dismissed for lack of jurisdiction.”

Qui Tam Claim Dismissed

Affirmed in all other respects

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7^th Circuit Court of Appeals

Case No.: 15-3047

Case Name: Backpage.com, LLC v. Thomas Dart

Officials: POSNER, RIPPLE, and SYKES, Circuit Judges.

Pertinent Practice Areas: Injunctive Relief – First Amendment – Government Intimidation

Officers tactics to get adult section of webpage shut down warrants injunction

“As a citizen or father, or in any other private capacity, Sheriff Dart can denounce Backpage to his heart’s content. He is in good company; many people are disturbed or revolted by the kind of sex ads found on Backpage’s website. And even in his official capacity the sheriff can express his distaste for Backpage and its look-alikes; that is, he can exercise what is called “[freedom of] government speech.” See Walker v. Texas Division, Sons of Confederate Veterans, Inc., 135 S. Ct. 2239 (2015); Pleasant Grove City v. Summum, 555 U.S. 460 (2009); Johanns v. Livestock Marketing Association, 544 U.S. 550 (2005); Rosenberger v. Rector & Visitors of the University of Virginia, 515 U.S. 819, 833–34 (1995); Freedom from Religion Foundation, Inc. v. Obama, 641 F.3d 803 (7th Cir. 2011). A government entity, including therefore the Cook County Sheriff’s Office, is entitled to say what it wants to say—but only within limits. It is not permitted to employ threats to squelch the free speech of private citizens. “[A] government’s ability to express itself is [not] without restriction. … [T]he Free Speech Clause itself may constrain the government’s speech.” Walker v. Texas Division, Sons of Confederate Veterans, Inc., supra, 135 S. Ct. at 2246; see also Rosenberger v. Rector & Visitors of the University of Virginia, supra, 515 U.S. at 833–34.”

Reversed and Remanded

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Wisconsin Court of Appeals

WI Court of Appeals – District III

Case No: 2014AP1852-CR

Case Name: State of Wisconsin. Joseph J. VanMeter

Officials: HRUZ, J.

Pertinent Practice Areas: Criminal – OWI – Disorderly Conduct

Joseph VanMeter appeals a judgment of conviction for third-offense operating while intoxicated (OWI) and disorderly conduct. He argues the arresting officer lacked reasonable suspicion to request that VanMeter perform field sobriety tests. VanMeter also contends the officer lacked probable cause to believe VanMeter was driving intoxicated and, therefore, was not justified in requiring VanMeter to submit to a preliminary breath test (PBT). Finally, VanMeter argues the circuit court erroneously admitted “expert” evidence at trial through the arresting officer’s testimony regarding VanMeter’s performance on the horizontal gaze nystagmus (HGN) field sobriety test. We reject these arguments and affirm.

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WI Court of Appeals – District I

Case No: 2014AP1883; 2014AP2109

Case Name: Kelley A Jackelen v. Hope L. Russell

Officials: Curley, P.J., Brennan, J., and Daniel L. LaRocque, Reserve Judge.

Pertinent Practice Areas: Declaratory Relief – Insurance Coverage

The Hertz Corporation (Hertz), Hope L. Russell, and Artisan and Truckers Casualty Company (Artisan) (collectively, “the appealing parties”) appeal the trial court’s ruling and entry of final judgment in favor of Allstate Insurance Company (Allstate) on Allstate’s motion for declaratory and summary judgment seeking a determination that there is no insurance coverage under its policy because the non-owned vehicle involved in the accident was regularly available for the Russells’ use.  The appealing parties argue that: (1) the trial court incorrectly concluded that the non-owned vehicle was regularly available for Hope Russell’s use, therefore precluding coverage under the Allstate policy; and (2) the Allstate “drive other car” exclusion is not a valid exclusion because it does not comply with WIS. STAT. § 632.32(5)(j) (2009-10).  We conclude that the exclusion does not preclude coverage, and we therefore reverse

Recommended for publication

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WI Court of Appeals – District I

Case No: 2014AP1915-CR

Case Name: State of Wisconsin v. Rosalind B. Metcalf

Officials: Curley, P.J., Brennan, J., and Daniel L. LaRocque, Reserve Judge

Pertinent Practice Areas: Criminal – Pleas & Sentencing

Rosalind B. Metcalf appeals a judgment of conviction entered upon her guilty pleas to one count of arson of property other than a building and one count of second-degree recklessly endangering safety. See WIS. STAT. §§ 943.03, 941.30(2) (2013-14). She also appeals orders denying her postconviction motions. The only issues presented involve sentencing challenges. Metcalf fails to show that a new factor exists, that the sentencing court relied on inaccurate information, or that the circuit court erroneously exercised sentencing discretion. We affirm.

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WI Court of Appeals – District I

Case No:2014AP1918-CR

Case Name: State of Wisconsin v. Jammie Lewis Yerks

Officials: Curley, P.J., Brennan, J., and Daniel L. LaRocque, Reserve Judge.

Pertinent Practice Areas: Criminal – Sufficiency of Evidence

Jammie Lewis Yerks appeals from a judgment of conviction, entered upon a jury’s verdict, on one count of first-degree intentional homicide as party to a crime. Yerks claims there was insufficient evidence to support the jury’s verdict. We affirm

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WI Court of Appeals – District I

Case No:2014AP2092

Case Name: State of Wisconsinv. Ali Mursal

Officials: Kessler and Brennan, JJ., and Daniel L. LaRocque, Reserve Judge.

Pertinent Practice Areas: Criminal – Pleas & Sentencing – Plea Withdrawal

Ali Mursal, pro se, appeals from an order of the circuit court that denied without a hearing his motion to withdraw his guilty pleas. We affirm.

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WI Court of Appeals – District I

Case No: 2014AP2231-CR

Case Name: State of Wisconsin v. Adam Joseph Breska

Officials: Curley, P.J., Kessler, J., and Daniel L. LaRocque, Reserve Judge

Pertinent Practice Areas: Criminal – Motion to Suppress – Warrantless Search

Adam Joseph Breska appeals from a judgment of conviction, entered upon his guilty plea, on one count of possession with intent to deliver less than 200 grams of tetrahydrocannabinols (THC). Breska contends that a warrantless search of the basement in which he was staying was unlawful, so the circuit court erred in denying his motion to suppress physical evidence and incriminating statements he made to police. We affirm

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WI Court of Appeals – District I

Case No: 2014AP2591-CR

Case Name: State v. Chevea D. Foster

Officials: Curley, P.J., Kessler and Brennan, JJ.

Pertinent Practice Areas: Criminal – Ineffective Assistance of Counsel

Chevea D. Foster appeals from a judgment of conviction, entered upon a jury’s verdict, for one count of attempted armed robbery with the use of force and one count of first-degree sexual assault with a dangerous weapon. Foster also appeals a circuit court order denying his postconviction motion without a hearing. Foster contends he received ineffective assistance from trial counsel. We disagree and affirm.

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WI Court of Appeals – District I

Case No:2014AP2672

Case Name: State of Wisconsin v. Larry D. Wright

Officials: Curley, P.J., Kessler, J., and Daniel L. LaRocque, Reserve Judge.

Pertinent Practice Areas: Criminal – Ineffective Assistance of Counsel

Larry D. Wright, acting pro se, appeals the order denying his postconviction motion without an evidentiary hearing brought pursuant to WIS. STAT. § 974.06 (2013-14).  In 2010, Wright was convicted by a jury of two counts of second-degree sexual assault of a child, contrary to WIS. STAT. § 948.02(2) (2009-10), and one count of child enticement, contrary to WIS. STAT. § 948.07(7) (2009-10). In this appeal, Wright contends that: (1) his postconviction counsel gave him ineffective assistance because he did not raise the claim of ineffective assistance of trial counsel in his direct appeal; (2) the trial court should have held a hearing on what he interprets as an unlawful ex parte communication with the jury outside his and his attorney’s presence that violated his right to be present at trial; and (3) the cumulative effect of these alleged errors was prejudicial. We conclude that his trial attorney was not ineffective. There was no prohibited ex parte communication with the jury and his right to be present was not implicated. Finally, since there were no errors, there was no prejudice. Further, because the issues Wright raises are not clearly stronger than those argued by his postconviction attorney, and the issues he presents, on their face, are insufficient to warrant relief, Wright was not entitled to an evidentiary hearing. We affirm.

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WI Court of Appeals – District I

Case No:2014AP2479-CR; 2014AP2750-CR; 2014AP2751-CR; 2014AP2752-CR

Case Name: State of Wisconsinv. Bradley Wajer

Officials: Curley, P.J., Kessler and Brennan, JJ.

Pertinent Practice Areas: Criminal – Pleas & Sentencing – Exclusion of Evidence – Resentencing

In these consolidated appeals, Bradley Wajer appeals judgments convicting him of eight criminal counts and an order denying his postconviction motion. Wajer argues that he is entitled to resentencing because the circuit court erroneously excluded evidence that the State made varying plea offers depending on his ability to pay his child support arrears. We disagree and affirm.

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WI Court of Appeals – District I

Case No: 2014AP2821

Case Name: Richard Schoen v. Board of Fire and Police Commissioners of the City of Milwaukee

Officials: Kessler and Brennan, JJ., and Daniel L. LaRocque, Reserve Judge

Pertinent Practice Areas: Abuse of Authority – Mistake of Law – Discharge

Richard Schoen appeals an order of the circuit court affirming the Board of Fire and Police Commissioners’ (the Board) decision to discharge Schoen. The Board first found that Schoen acted with excessive force, in violation of Milwaukee Police Department Rules and Procedures.  In determining the penalty, the Board, by an oral decision, initially announced a 60- day suspension for the violation. The Board reconsidered that decision prior to issuing its written decision, which ultimately imposed discharge as the penalty. The circuit court, in Schoen’s certiorari petition and appeal, upheld the Board’s decision to discharge Schoen. Schoen appeals. The sole issue here is whether the Board acted within its authority when, based on the Board’s conclusion that its earlier disciplinary decision was based on a mistake of law, it changed its oral decision to suspend Schoen and discharged him instead. Schoen argues that the Board had no authority to reconsider its decision, regardless of the reason. We disagree and affirm.

Recommended for Publication

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WI Court of Appeals – District I

Case No:2014AP2840-CR

Case Name: State of Wisconsinv. Christopher Joseph Allen

Officials: Curley, P.J., Kessler and Brennan, JJ.

Pertinent Practice Areas: Criminal – Pleas  & Sentencing

Christopher Joseph Allen comes to this court asking for a new sentencing hearing. He contends that State v. Leitner, 2002 WI 77, 253 Wis. 2d 449, 646 N.W.2d 341, prohibited the circuit court from considering the fact that Allen had previously completed supervision in a case expunged pursuant to WIS. STAT. § 973.015 (2013-14). In Leitner, the Wisconsin Supreme Court held that a sentencing court could consider “the facts underlying a record of conviction expunged under § 973.015.” Leitner, 253 Wis. 2d 449, ¶48. Allen argues that the “facts” referenced by Leitner are only those facts relating to the crime underlying the expunged conviction, and do not include those facts underlying the expunged criminal record. We disagree. Both the sentencing court’s obligation to sentence a defendant based upon the full knowledge of the defendant’s character and behavior, see id., ¶45, and the legislature’s desire in passing the expunction statute to only shield a defendant from some of the harsh consequences of criminal convictions, see id., ¶38, require us to read Leitner to permit a sentencing court to consider all the facts underlying the expunged criminal record. As such, we affirm.

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WI Court of Appeals – District I

Case No:2014AP2856

Case Name: Shirley M. Johnson v. Melvin C. Johnson

Officials: Curley, P.J., Kessler, J., and Daniel L. LaRocque, Reserve Judge

Pertinent Practice Areas: Property Law – Motion to Enforce – Settlement Agreement

Melvin Johnson appeals an order of the circuit court granting Shirley Johnson’s motion to enforce a settlement agreement. We affirm.

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WI Court of Appeals – District I

Case No:2014AP2899-CR; 2014AP2900-CR

Case Name: State of Wisconsin v. Eric Christopher Bell

Officials: Curley, P.J., Brennan, J., and Daniel L. LaRocque, Reserve Judge

Pertinent Practice Areas: Criminal – Joinder of Claims – Prejudice – Abuse of Discretion

Eric Christopher Bell appeals from two judgments of conviction entered after a jury found him guilty of multiple sex crimes involving five different children. The judgments arose from two Milwaukee County cases that were consolidated for trial. On appeal, Bell argues that the cases were improperly joined pursuant to WIS. STAT. § 971.12 (2013-14) and that he was substantially prejudiced by the joinder. Because we conclude that the cases were of the same or similar character and, as such, were properly joined as a matter of law, and because the trial court did not erroneously exercise its discretion when it determined that Bell was not substantially prejudiced by the joinder, we affirm.

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WI Court of Appeals – District I

Case No:2014AP2965-CR

Case Name: State of Wisconsin v. Tiron Justin Grant

Officials: Curley, P.J., Kessler and Brennan, JJ.

Pertinent Practice Areas: Criminal – Sufficiency of Evidence – Ineffective Assistance of Counsel – General Appeal

Tiron Justin Grant appeals the judgment of conviction for possession of cocaine with the intent to deliver, contrary to WIS. STAT. §§ 961.41(1m)(cm)1r. and 939.50(3)(f) (2013-14), and the order denying his postconviction motion. He is seeking a new trial, or, in the alternative, eligibility for two early release programs. He claims he is entitled to a new trial: (1) due to insufficiency of the evidence/erroneous ruling as to the chain of custody evidence; (2) due to a due process violation; (3) due to ineffective assistance of counsel; and (4) in the interests of justice. With respect to his early release programs request, Grant argues that the trial court erroneously exercised its discretion when it refused to make him eligible for the two programs. We disagree with all of his contentions and affirm

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WI Court of Appeals – District III

Case No:2015AP53-CR

Case Name: State of Wisconsin v. Cory S. Herrmann

Officials: Stark, P.J., Hruz and Seidl, JJ.

Pertinent Practice Areas: Criminal – Constitutionality

Cory Herrmann appeals that portion of a judgment convicting him of possession of a switchblade knife, contrary to WIS. STAT. § 941.24(1). Herrmann argues § 941.24(1) is unconstitutional, both facially and as applied to him, because it violates his right to bear arms, as guaranteed by the Second Amendment to the United States Constitution and article I, section 25 of the Wisconsin Constitution. We agree with Herrmann that § 941.24(1) is unconstitutional as applied to him. We therefore reverse that portion of the judgment convicting Herrmann of possession of a switchblade knife.

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WI Court of Appeals – District IV

Case No: 2014AP2402

Case Name: Lyle Hird v. American Family Mutual Ins. Co.

Officials: Kloppenburg, P.J., Higginbotham and Sherman, JJ.

Pertinent Practice Areas: Insurance – Bad Faith – Summary Judgment

Lyle and Carol Hird appeal the judgment dismissing their bad faith claim against their insurer, American Family, denying their request for additional interest under WIS. STAT. § 628.46(1), and denying their request for double costs and interest under WIS. STAT. § 807.01 (2013-14).  For the reasons set forth below, we conclude that: (1) American Family is entitled to summary judgment as to the bad faith claim because the issues of coverage and damages were fairly debatable and American Family’s attempts to settle and defend those issues were objectively reasonable; (2) the Hirds are not entitled to additional interest under WIS. STAT. § 628.46 because they fail to show a sum certain owed; and (3) the Hirds are entitled to double costs and interest under WIS. STAT. § 807.01 because their October 26, 2011 offer of settlement was valid. Therefore, we affirm the circuit court’s order granting summary judgment in favor of American Family and denying the Hirds additional interest under WIS. STAT. § 628.46; and we reverse the court’s denial of the Hirds’ request for double costs and interest under WIS. STAT. § 807.01 and remand for an award of double costs and interest consistent with this opinion.

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WI Court of Appeals – District III

Case No: 2015AP778-FT

Case Name: Steven L. Schultz v. Midwest Properties of Shawano, LLC

Officials: Stark, P.J., Hruz and Seidl, JJ.

Pertinent Practice Areas: Property – Land Contract – Failure to Pay – Breach

Midwest Properties of Shawano, LLC, appeals a judgment granting Steven and Verna Schultz strict foreclosure of real estate sold under a land contract. Midwest argues the circuit court erred by entering judgment in the Schultzes’ favor, as the Schultzes failed to prove: (1) that Midwest defaulted on its payment obligations under the contract; and (2) the amount allegedly owed under the contract at the time of trial. We reject these arguments and affirm the judgment.

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Wisconsin Supreme Court

WI Supreme Court

Case No.: 2014AP515-FT

Case Name: State of Wisconsin v. Daniel S. Iverson

Pertinent Practice Area: Criminal – Motion to Suppress Evidence – OWI – Traffic Stop

Issue: Does 4^th Amendment and WI Constitution permit an officer of state traffic patrol to stop a vehicle based solely on the officer’s observation of the commission of a non-traffic civil forfeiture offense by an occupant of that vehicle?

Holding:

Reversed and Remanded

We conclude that: (1) the Wisconsin Legislature has explicitly authorized state troopers to conduct traffic stops in order to investigate violations of Wis. Stat. § 287.81 and to arrest violators of the statute under specified conditions; (2) a traffic stop to enforce § 287.81 is generally reasonable if an officer has probable cause or reasonable suspicion that a violation of § 287.81 has occurred; (3) discarding a cigarette butt onto a highway violates § 287.81; and (4) based on his observations, the officer in this case had probable cause to believe that an occupant of Iverson’s vehicle had violated § 287.81 by throwing a cigarette butt onto the highway.

“The current case features a violation of a law applicable to the state’s highways and statutorily enforceable by the state’s traffic patrol. Enforcement of the law conceivably helps keep the state’s roads safe.17 In addition, we note that the legislature has specifically defined the terms according to which officers may briefly detain potential violators of Wis. Stat. § 287.81. Our approval of the traffic stop at issue is therefore not at odds with Houghton. A reasonable suspicion that a violation of the littering statute, § 287.81, has occurred justifies a brief and limited traffic stop. The more onerous standard of probable cause would also therefore justify a traffic stop. See Houghton, 364 Wis. 2d 234, ¶21.”

Concurred: ABRAHAMSON, J., concurs joined by A.W. BRADLEY, J.(¶¶64-66 ONLY). (Opinion Filed) A.W. BRADLEY, J., concurs. (Opinion Filed)

Not Participating: R.G. BRADLEY, J. did not participate.

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