Weekly Case Digests — July 11-15, 2016

Listen to this article

WI Court of Appeals Digest

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Ademus Akadeameuer Saechao

Case No.: 2014AP2975-CR

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

Focus: Ineffective Assistance of Counsel

Ademus Saechao appeals a judgment of conviction and an order denying his motion for postconviction relief. Saechao argues the circuit court erroneously exercised its discretion by disqualifying his first trial counsel. He further argues his second trial counsel provided ineffective assistance. We disagree and affirm the judgment and order.

Full Text

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Appleton Area School District Board of Education and Communication Arts 1 Materials Review Committee

Case No.: 2015AP231

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

Focus: Court Error

John Krueger appeals a summary judgment order dismissing his complaint that alleged open-meetings violations by the Appleton Area School District Board of Education (“School Board”) and the Communications Arts 1 Materials Review Committee (“Review Committee”). Krueger argues the circuit court erroneously determined the Review Committee was not a “governmental body” subject to the open-meetings law. We reject Krueger’s argument and affirm. Additionally, we grant a motion to strike portions of Krueger’s reply brief.

Full Text

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Terrence C. Stokes

Case No.: 2015AP1147

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

Focus: Merit of Appeal

Terrence Stokes, pro se, appeals a judgment of conviction and an order denying his WIS. STAT. § 974.061 motion for postconviction relief. Stokes challenges the circuit court’s partiality during his trial. We conclude his argument is procedurally barred and without merit in any event. Accordingly, we affirm.

Full Text

WI Court of Appeals – District I

Case Name: Toya Williamson v. Housing Authority of the City of Milwaukee

Case No.: 2015AP1198

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

Focus: Rent Assistance Program – Weight of Evidence

Toya Williamson appeals from an order of the circuit court that affirmed a decision by a hearing examiner for the Housing Authority of the City of Milwaukee to terminate Williamson from its rent assistance program. Williamson contends that the hearing examiner gave improper importance to completion of a form and failed to consider “all relevant circumstances.” We reject Williamson’s arguments and affirm

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Tory C. Johnson

Case No.: 2015AP1322-CR

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

Focus: Jury Instructions – Court Error

Appellant Tory Johnson was convicted, after a jury trial, of causing substantial bodily harm to a police officer while resisting the officer, contrary to WIS. STAT. §§ 946.41(1), (2r) (2013-14). On appeal, Johnson argues that the evidence was insufficient to establish that he resisted the officer because: (1) there is no evidence of physical resistance to the stop or questioning; (2) the officers were acting without lawful authority; and (3) the officers did not have probable cause. Johnson also argues that the jury instructions were erroneous and justice has miscarried because the “Legal Issue” jury instruction misstated the law and because the State was relieved of its burden of proof regarding the self-defense instruction. For the reasons discussed, we affirm

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. James D. Heidke

Case No.: 2015AP1420-CR

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

Focus: Penalty Enhancer – Motion to Dismiss

James D. Heidke appeals the order emanating out of his conviction for violating WIS. STAT. § 948.075(1r) entered upon his guilty plea. The issue on appeal relates to the order denying his motion to dismiss the penalty enhancer found in WIS. STAT. § 939.617(1) (2013-14) and denying his request to declare § 939.617(1) unconstitutional, which the trial court entered prior to Heidke’s plea. The aforementioned penalty enhancer set a mandatory minimum sentence of five years for his conviction of using a computer to facilitate a child sex crime contrary to WIS. STAT. § 948.075(1r). Heidke argues that the penalty enhancer has no rational basis to a crime of computer facilitation because by contrast, a person convicted of the completed act of sexual assault with a child found in WIS. STAT. § 948.02 does not face a mandatory sentence of any kind. He also contends the penalty enhancer is unconstitutional as applied to him. We are satisfied that the legislature had reasonable and practical grounds for making the conviction for using a computer to facilitate a child sex crime subject to a mandatory minimum sentence. Thus, there was a rational basis for the penalty enhancer. The fact that a conviction for sexual assault of a child (§ 948.02), which has different elements than § 948.075(1r), has no mandatory sentence does not render the penalty enhancer irrational. In addition, we find his argument that the statute is unconstitutional as applied to him unavailing. Consequently, the penalty enhancer was properly applied, and § 939.617(1) is constitutional. We affirm.

Recommended for Publication

Full Text

WI Court of Appeals – District I

Case Name: Terry Kirby et al v. Estate of Robert B. Jaeschke and Lori K. Blotz

Case No.: 2015AP2104

Officials: Kessler, Brennan and Brash, JJ

Focus: Summary Judgment – Misrepresentation

Carol Kosiboski appeals the dismissal of her statutory and common law misrepresentation claims against Lori K. Blotz, who served as the personal representative for the estate of Blotz’s father, Robert B. Jaeschke. We affirm the order granting summary judgment in Blotz’s favor.

Full Text

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Zeferino A. Martinez

Case No.: 2015AP1458-CR

Officials: Neubauer, C.J., Gundrum and Hagedorn, JJ.

Focus: Daubert – Court Error

Zeferino Martinez appeals from a judgment convicting him of incest with a child and sexual assault of a child under sixteen. He contends the trial court erred when it admitted opinion evidence from a detective without proper Daubert qualification, excluded evidence of the victim’s prior sexual assault, admitted evidence of his telephone call to a third party without proper authentication and consent, and imposed two DNA surcharges. We reject Martinez’s contentions in regard to the evidentiary rulings but agree that the court erred in regard to the surcharges. Accordingly, we affirm in part and reverse in part and remand for the trial court to apply the DNA-surcharge statute that was in effect when Martinez committed his crimes. A fourteen-year-old close blood relative of Martinez’s alleged that he plied her with alcohol and she later woke up to find him having penis-to-vagina intercourse with her. Martinez at first denied involvement but later gave an inculpatory statement to police. A jury found him guilty. He appeals. We will supply other facts as necessary to address the issues on appeal. Martinez challenges three evidentiary rulings. He first contends the trial court erred by allowing City of Kenosha Detective David May to testify as an expert in violation of WIS. STAT. § 907.02 (2013-14), which incorporates the Daubert reliability test. We disagree.

Full Text

WI Court of Appeals – District IV

Case Name: Renew Wisconsin v. Public Service Commission of Wisconsin, et al.

Case No.: 2015AP911

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

Focus: Sufficient Explanation – Administrative

RENEW argues that we should affirm the circuit court order remanding to the Commission for further consideration because the Commission’s decision “lacks sufficient explanation to be reviewable” and “is not supported by substantial evidence that generating systems larger than 20 kilowatts or annual netting cause the utility to under-collect fixed costs or provide a cross-subsidy.” RENEW also argues that the Commission’s decision is arbitrary and capricious because “it treats customer-generators served by [WPSC] differently than customer generators served by other large investor-owned utilities in Wisconsin” and because it targets generating systems larger that 20 kW as receiving a crosssubsidy while ignoring the half of customers who also receive the cross-subsidy because they buy less than the average amount of electricity. For the reasons set forth below, we agree with the Commission and reject RENEW’s arguments. Therefore, we reverse the circuit court’s order and affirm the Commission’s Final Decision.

Full Text

WI Court of Appeals – District IV

Case Name: Michael C. Connor v. Village of Holemn

Case No.: 2015AP1066

Officials: Lundsten, Sherman and Blanchard, JJ.

Focus: Value Assessment

Michael Connor appeals, pro se, the circuit court’s order determining that Connor’s Village of Holmen property should have been assessed at $220,700 for the year 2011. The Village cross-appeals. Connor argues that the court erred by refusing to adopt as the assessed value the 2010 sales price of the property, $78,750. The Village argues that the court erred by refusing to uphold the original assessment of $289,900. We affirm the $220,700 figure determined by the circuit court.

Full Text

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. William Johnathan Wilke

Case No.: 2015AP1270-CR

Officials: Kloppenburg, P.J., Lundsten and Blanchard, JJ.

Focus: Pleas & Sentencing – Resentencing

William Wilke appeals a criminal judgment convicting him of two felony charges. He also appeals an order denying his postconviction motion. Wilke contends that he is entitled to resentencing based upon a breach of the plea agreement. For the reasons explained below, we agree. Accordingly, we reverse the judgment of conviction and the postconviction order, and remand with directions that Wilke be resentenced before a different judge.

Full Text

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Joshua J. Hams

Case No.: 2015AP2656

Officials: BLANCHARD, J.

Focus: Motion to Suppress – 4^th Amendment

Joshua Hams appeals a judgment of conviction for possession of tetrahydrocannabinols, THC, in the form of hashish oil.  The judgment was entered following Hams’s plea, after the circuit court denied his motion to suppress evidence obtained after an officer extended a traffic stop briefly to pursue concerns based on apparently abnormally nervous behavior by Hams and the driver of the vehicle that Hams was riding in at the time. Hams concedes on appeal that the challenged evidence was obtained following a lawful stop based on dark-tinted windows and a loud muffler, and further concedes that it was reasonable under the Fourth Amendment for the deputy to ask the driver and Hams at the outset of the stop whether any drugs or weapons were present. Hams argues that the deputy lacked reasonable suspicion to extend the stop thereafter, by asking the driver to step out of his vehicle for a brief discussion to satisfy the deputy’s concerns based on the appearance of abnormally nervous behavior. Applying precedent that includes State v. Sumner, 2008 WI 94, ¶38, 312 Wis. 2d 292, 752 N.W.2d 783, and State v. Gaulrapp, 207 Wis. 2d 600, 558 N.W.2d 696 (Ct. App. 1996), I conclude that the extension of the stop that involved asking the driver to get out of his vehicle for a brief discussion was reasonable under the circumstances, and accordingly affirm.

Full Text

WI Court of Appeals – District III

Case Name: Estate of Stanley G. Miller c/o Genevieve Miller v. Diane Storey

Case No.: 2014AP2420

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

Focus: Damages

Diane Storey appeals a small claims money judgment entered after a jury trial and posttrial motions, in which the court awarded the Estate of Stanley G. Miller (the Estate) sums totaling $52,629.90. That amount included restitution damages, exemplary damages, double statutory costs, and actual attorney fees. Storey argues she was never given actual notice of any claim for theft under WIS. STAT. § 895.446,2 and, therefore, the circuit court should not have allowed any damages or other relief under that statute. Further, Storey contends statutory damages under § 895.446 may not be awarded where the Estate failed to plead exemplary damages. Storey also argues her handwriting expert should not have been precluded from offering part of his expert opinion. We reject these arguments.

Recommended for publication

Full Text

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Charles David Sislo

Case No.: 2015AP73-CR

Officials: SEIDL, J.

Focus: Motion to Suppress – Court Error

Charles Sislo appeals a judgment of conviction for unlawful phone use, contrary to WIS. STAT. § 947.012(1)(c). Sislo argues the circuit court erroneously denied his motion to suppress the fruits of his arrest, asserting there was no probable cause to arrest, even considering the collectiveknowledge doctrine. Because the State fails to respond to Sislo’s argument, we reverse the conviction and remand with directions to grant Sislo’s suppression motion.

Full Text

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Michael J. Rickaby

Case No.: 2015AP268-CR

Officials: Neubauer, C.J., Reilly, P.J., and Gundrum, J.

Focus: Court Error

Michael J. Rickaby appeals from a judgment of conviction and an order denying his motion for postconviction relief. He contends that the circuit court erred in denying his motion to withdraw his no contest plea. He also contends that the court erroneously exercised its discretion at sentencing. We reject Rickaby’s claims and affirm the judgment and order.

Full Text

WI Court of Appeals – District III

Case Name: Nancy A Johnson et al v. Kevin W. Johnson et al

Case No.: 2015AP588

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

Focus: Court Error – Partition

Kevin Johnson appeals an order apportioning proceeds from the sale of a home in this partition action. He argues the circuit court made several errors of law. We agree the court improperly ordered Kevin to make an equitable contribution representing the value of his use and occupancy of the home. Accordingly, we reverse.

Recommended for publication

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Johnnie Mertice Wesley

Case No.: 2015AP590-CR

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

Focus: Court Error – Motion to Supress

Johnnie Mertice Wesley appeals a judgment convicting him of felony murder. Wesley argues that the circuit court erred when it denied his motion to suppress statements he made to law enforcement officers. Specifically, Wesley argues: (1) that officers did not scrupulously honor his requests to remain silent; and (2) he unequivocally invoked his right to remain silent during his third custodial interrogation. We disagree and affirm

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Keimonte Antonie Wilson, Sr.

Case No.: 2015AP671-CR

Officials: Kessler, Brennan and Brash, JJ.

Focus: Court Error – Subpoena – Ineffective Assistance of Counsel

Keimonte Antonie Wilson, Sr., appeals from a judgment of conviction, entered upon his guilty plea, for one count of possession with intent to deliver between five and fifteen grams of cocaine. Wilson also appeals the order denying his motion for postconviction relief. He contends that the circuit court erred when it concluded Wilson improperly served a subpoena, so the court also erred in refusing to adjourn the hearing for re-service or to issue a body attachment for the witness. Wilson also asserts that trial counsel was ineffective for failing to argue that the service was proper or, alternatively, for failing to properly subpoena the witness. We conclude the circuit court properly interpreted the subpoena rules and that no prejudice has been shown from the failure to obtain the witness’s testimony. We therefore affirm the judgment and order

Full Text

WI Court of Appeals – District III

Case Name: KNA Family, LLC v. Peter Fazio et al

Case No.: 2015AP771

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

Focus: Foreclosure – Summary Judgment

Peter and Shari Fazio appeal a judgment of foreclosure involving commercial real property located in Barron County. The circuit court granted KNA Family LLC’s motion for summary judgment, concluding KNA Family was entitled to a foreclosure judgment as a matter of law and there were no genuine issues of material fact regarding any of the Fazios’ affirmative defenses. In particular, the court rejected the Fazios’ affirmative defense based on an alleged violation of CAL. CIVIL CODE § 2943,1 concluding California law did not apply in any manner to this foreclosure action. The court also rejected the Fazios’ affirmative defense based on an alleged breach of the duty of good faith and fair dealing, concluding there was no competent evidence that KNA Family or its predecessors engaged in unfair conduct. The court entered a judgment of foreclosure and directed that, at a future time, rental income from the property being held in receivership would be applied to reduce the amount of the judgment. We reverse and remand for further proceedings. We conclude the Fazios have stated and adequately supported a valid affirmative defense for a violation of CAL. CIVIL CODE § 2943, which, if proved at trial, could reduce the amount of the foreclosure judgment. Likewise, we conclude the Fazios have stated and adequately supported a valid affirmative defense for a breach of the duty of good faith and fair dealing. On remand, should a judgment of foreclosure be entered, the circuit court is directed to exercise its equitable discretion with respect to the application of the receivership funds to the amount of the judgment.

Full Text

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Michael J. Wedge

Case No.: 2015AP803-CR; 2015AP804-CR

Officials: Reilly, P.J., Gundrum and Hagedorn, JJ.

Focus: Pleas & Sentencing – Inaccurate Information – Court Error

In these consolidated matters, Michael J. Wegge appeals from judgments of conviction entered upon his guilty pleas to robbery by threat of force and armed robbery and from an order denying his postconviction motion which requested resentencing on grounds that the sentencing court relied on inaccurate information.  The postconviction court determined that the circuit court relied on inaccurate information at sentencing, but that the error was harmless. Because we conclude that the State met its burden to prove that the sentencing court’s reliance on inaccurate information was harmless, we affirm.

Full Text

WI Court of Appeals – District III

Case Name: First National Bank of America v. David L. Hanson et al

Case No.: 2015AP925

Officials: SEIDL, J.

Focus: Foreclosure

David and Diana Hanson appeal a default judgment of foreclosure. The Hansons argue the circuit court erroneously permitted First National Bank of America (FNBA) to reopen the case, which FNBA had voluntarily dismissed without prejudice. We reject the Hansons’ argument and affirm.

Full Text

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Michael K. McGuire

Case No.: 2015AP999-CR; 2015AP1000-CR

Officials: Kessler, Brennan and Brash, JJ.

Focus: Ineffective Assistance of Counsel

Michael K. McGuire appeals judgments of conviction entered after a bench trial in which the circuit court found him guilty of delivering not more than one gram of cocaine as a second or subsequent offense, intimidating a witness, and battery. He also appeals orders denying postconviction relief. McGuire contends his trial counsel was ineffective for failing to file a suppression motion as to the cocaine charge and for failing to present evidence to challenge the witness intimidation charge. The circuit court rejected his claims, and we affirm.

Full Text

WI Court of Appeals – District III

Case Name: Eric Wimberger v. Brown County

Case No.: 2015AP1022

Officials: SEIDL, J.

Focus: Summary Judgment – Breach of Contract

Eric Wimberger appeals an order granting Brown County’s motion for summary judgment. Wimberger argues summary judgment was inappropriate because material facts were at issue in his breach-of-contract claim and the circuit court’s decision should not preclude him from proceeding on two of his claims. We disagree and affirm the order.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Ryan R. Garrson

Case No.: 2015AP1275-CR

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

Focus: Sufficiency of Evidence

Ryan R. Garrison appeals a judgment convicting him of robbery, with use of force, as a party to a crime. The issue is whether the evidence at trial was sufficient to establish that Garrison threatened the imminent use of force during the robbery. We affirm.

Full Text

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Edward J. Zimbal

Case No.: 2015AP1292-CR; 2015AP1293-CR

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

Focus: Court Error – Substitution

Edward Zimbal appeals judgments convicting him of four felonies and two misdemeanors, and an order denying his postconviction motion. He contends the trial judge erred by denying his request for substitution. Because we conclude Zimbal failed to comply with WIS. STAT. § 971.20(7), he did not properly invoke his right to substitution of a circuit court judge and his motion was properly denied

Full Text

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Lewis O. Floyd, Jr.  

Case No.: 2015AP1294-CR

Officials: Reilly, P.J., Gundrum and Hagedorn, JJ.

Focus: Ineffective Assistance of Counsel – Motion to Supress

Lewis Floyd, Jr., appeals his judgment of conviction, arguing the circuit court erred in denying his motion to suppress evidence of illegal drugs discovered on him during a traffic stop. He contends the arresting deputy unlawfully (1) extended the stop beyond the time necessary t issue various citations and (2) searched Floyd’s person without his voluntary consent.  Floyd also appeals the denial of his postconviction motion, asserting his trial counsel performed ineffectively by failing to call as a witness at the suppression hearing another officer at the scene to testify that the deputy did not ask Floyd if he could search him but told Floyd he was going to do so. Floyd contends that if this officer had been called to the stand, the circuit court would not have found Floyd’s consent to the search to have been voluntary and the evidence of illegal drugs would have been suppressed. For the following reasons, we affirm.

Recommended for publication

Full Text

WI Court of Appeals – District III

Case Name: Unity Bayer et al v. Brian D. Dobbins, M.D. et al

Case No.: 205AP1470

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

Focus: Negligence – Court Error – Exclusion of Evidence

Unity Bayer sustained a permanent brachial plexus injury during birth. Unity and her parents sued Brian Dobbins, the physician who performed the delivery, along with MMIC Insurance, Inc., Prevea Clinic, LLC, and the Injured Patients and Families Compensation Fund. The Bayers alleged Dobbins was negligent in various respects. In response, Dobbins1 sought to introduce expert testimony that Unity’s injury was caused by maternal forces of labor, rather than Dobbins’ conduct. The circuit court granted the Bayers’ motion in limine to exclude that testimony, and Dobbins now appeals.  For the reasons explained below, we conclude the circuit court erroneously exercised its discretion by excluding the proffered testimony. We therefore reverse and remand for further proceedings.

Recommended for publication

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. N.T. & J.M.

Case No.: 2016AP817; 2016AP818

Officials: KESSLER, J.

Focus: Termination of Parental Rights

J.M. appeals the order terminating her parental rights to two of her children, S.T.M. and J.T.M. J.M. contends that the circuit court erroneously exercised its discretion in finding that the children were in continuing need of protection or services and that J.M. failed to assume parental responsibility because there was insufficient evidence as to both grounds. She also contends that the circuit court erroneously exercised its discretion in finding that termination was in the children’s best interests. We affirm.

Full Text

WI Court of Appeals – District IV

Case Name: State of Wisconsinv v. David A. Miller

Case No.: 2014AP2780-CR

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

Focus: Sufficiency of Evidence

Miller was convicted of four counts of second-degree recklessly endangering safety. Briefly described, the charges were based on allegations that Miller pointed a loaded pistol at four different people at various times.

David Miller appeals a judgment of conviction. Miller argues that the evidence was insufficient. We affirm the verdict unless the evidence, viewed most favorably to the State and the conviction, is so insufficient in probative value and force that no reasonable trier of fact could have found guilt beyond a reasonable doubt. State v. Poellinger, 153 Wis. 2d 493, 501, 451 N.W.2d 752 (1990). We affirm.

Full Text

WI Court of Appeals – District IV

Case Name: Logan A. Dargenio, et al v. Community Insurance Corporation, et al

Case No.: 2015AP809

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

Focus: Negligence – Governmental Immunity

Logan Dargenio was injured when a portable scorers table in a high school gymnasium fell on top of him. Dargenio sued the Madison Metropolitan School District, alleging negligence and violation of Wisconsin’s Safe Place Statute. The School District moved for summary judgment, asserting that it is entitled to dismissal of Dargenio’s claims based on governmental immunity under WIS. STAT. § 893.80(4) (2013-14).  The circuit court denied the School District’s motion, concluding that the known and compelling danger exception to governmental immunity allows Dargenio’s suit to proceed to trial. We granted the School District’s petition for leave to appeal the circuit court’s non-final order. See WIS. STAT. RULE 809.50(3). The School District argues on appeal that it is immune from suit under WIS. STAT. § 893.80(4) and that neither the ministerial duty exception nor the known and compelling danger exception applies to abrogate its immunity in this case. Viewing the evidence presented on summary judgment in Dargenio’s favor, we conclude that the School District is immune from liability, and, therefore, we reverse.

Full Text

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Navdeep S. Brar

Case No.: 2015AP1261-CR

Officials: HIGGINBOTHAM, J.

Focus: OWI 3^rd – Suppression of Evidence

Navdeep S. Brar appeals a judgment of conviction for operating while intoxicated (OWI), third offense, and a circuit court order denying his motion to suppress evidence of blood test results. We conclude that the record supports the circuit court’s finding that Brar gave consent to the blood test and that his consent was voluntary. For those reasons, we affirm.

Full Text

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Cynthia J. Popp

Case No.: 2016AP431-CR

Officials: KLOPPENBURG, P.J.

Focus: Motion to Suppress – Reasonable Suspicion

The State of Wisconsin appeals the order granting Cynthia Popp’s motion to suppress evidence arising out of a traffic stop. The circuit court held that there was no reasonable suspicion to support field sobriety testing and, therefore, granted Popp’s motion to suppress the field sobriety test results and subsequent evidence of intoxication. The State argues that, under all the facts and circumstances, the arresting officer did have the requisite reasonable suspicion that Popp was operating under the influence of an intoxicant or operating with a prohibited alcohol concentration and, therefore, the officer properly extended Popp’s detention for field sobriety testing. For the reasons set forth below, I conclude that the totality of the facts and circumstances here gave rise to reasonable suspicion that Popp was operating with a prohibited alcohol concentration, and therefore, I reverse the circuit court’s order and remand for further proceedings.

Full Text

WI SUPREME COURT DIGESTS

WI Supreme Court

Case Name: State of Wisconsin v. Rory A. McKellips

Case No.: 2014AP287-CR

Focus: Statutory Interpretation – Elements of the Offense

State has met its burden of providing evidence of element, use of computerized communications system.

“We hold the State satisfied its burden of proving the element, use of a “computerized communications system,” because McKellips used his cellphone as a computer to send communications to the victim over the computer system used by their cellphones so that he could have sexual contact with her. We also hold that Wis. Stat. § 948.075 is not unconstitutionally vague because a person of ordinary intelligence would understand that using a cellphone to text or picture-message a child to entice sexual encounters violates the statute, and because the statute is capable of objective enforcement. Further, we hold that the jury instruction given here, although not perfect, when read as a whole, accurately stated the law. Even if the instruction were erroneous, it was harmless error. Finally, we hold that the court of appeals erred when it exercised its discretionary authority under Wis. Stat. § 752.35 to reverse McKellips’ conviction. The real controversy was fully tried in this case; moreover, discretionary reversals under § 752.35 are limited to exceptional cases.”

Reversed

Concurring:

Dissenting: ABRAHAMSON, J. and BRADLEY, A. W., J. dissent (Opinion filed)

Full Text

WI Supreme Court

Case Name: Fontana Builders, Inc. et al v. Assurance company of America

Case No.: 2014AP821

Focus: Insurance Policy

Court of appeals incorrectly interpreted risk policy as question of fact for jury.

“we reaffirm the general principle that interpretation of insurance contracts presents a question of law for the court. We further conclude that the homeowner’s policy in this case did not “apply” so as to terminate Fontana’s builder’s risk policy because Fontana and the Accolas insured different interests in the property. Fontana had a reasonable expectation that coverage would persist under the builder’s risk policy while construction continued and Fontana remained the owner of the property. Accordingly, we reverse the decision of the court of appeals and remand to the circuit court for the determination of damages.”

Reversed

Concurring: BRADLEY, A. W., J. and ABRAHAMSON, J. concur (Opinion filed).

Dissenting: BRADLEY, R. G., J. concurs and dissents (Opinion filed).

Full Text

WI Supreme Court

Case Name: David M. Marks v. Houston Casualty Company et al

Case No.: 2013AP2756

Focus: Insurance Coverage

Allegations made in complaint are not claims covered under insurance policy.

“The circuit court below found that Marks’ policy provides an initial grant of coverage. The court of appeals assumed without deciding that Marks’ policy provides an initial grant of coverage, then moved to step two: determining whether any exclusions preclude coverage. Marks, 363 Wis. 2d 505, ¶9. The court of appeals ultimately concluded that the business enterprise exclusion “precludes coverage when measured against the allegations in the complaints.” Id., ¶22. We agree with the court of appeals on both counts: we need not and do not decide whether Marks’ policy provides an initial grant of coverage based on the allegations in the six lawsuits, because, as we will now explain, the business enterprise exclusion clearly establishes that Houston Casualty could have no possible duty to indemnify Marks, even if the allegations in the complaints turned out to be true. See Fireman’s Fund, 261 Wis. 2d 4, ¶21.22 Thus, Houston Casualty did not breach its duty to defend Marks when it declined to defend him.”

Affirmed

Concurring: BRADLEY, A. W., J. and ABRAHAMSON, J. concur (Opinion filed). BRADLEY, R. G., J. concurs (Opinion filed).

Dissenting:

Full Text

WI Supreme Court

Case Name: Water Well Solutions Services Group, Inc. v. Consolidated Insurance Company

Case No.: 2014AP2484

Focus: Insurance Coverage

Insurance provider did not breach its duty of defend. Court will not craft exception to four-corners rule.

“We recognized this in Doyle when we soundly rejected an assertion, based on Berg, suggesting a court should look beyond the four corners of the complaint to determine whether an insurer had breached its duty to defend. Doyle, 219 Wis. 2d at 284 n.3. A year later, citing our footnote in Doyle, we again declined to recognize an exception to the four-corners duty to defend rule. Smith v. Katz, 226 Wis. 2d 798, 815-16, 595 N.W.2d 345 (1999). “

Affirmed

Concurring:

Dissenting: BRADLEY, A. W., J. and ABRAHAMSON, J. dissent (Opinion filed).

Full Text

WI Supreme Court

Case Name: Office of Lawyer Regulation v. Godfrey Y. Muwonge

Case No.: 2007AP776-D

Focus: Disciplinary Proceedings

Attorney license is reinstated after suffering from PTSD

“The referee, the OLR, and Attorney Muwonge himself have all proposed various conditions that could be imposed on Attorney Muwonge’s law practice. While the level of detail and the wording of these various proposals differ, fundamentally, there is consensus. All concur that continued WisLAP monitoring is critical, and we agree. All concur that Attorney Muwonge’s practice of law should be monitored by an experienced Wisconsin attorney, and we agree. Attorney Muwonge has identified a suitable attorney willing to monitor his law practice. Attorney Harold Block, who has known Muwonge for over 30 years and represented Muwonge when he sought immigration status after coming to Wisconsin from Uganda, testified that he was willing to monitor Muwonge if he is reinstated and the referee supports his appointment.”

Concurring: ABRAHAMSON, J. concurs (Opinion filed).

Dissenting:

Full Text

WI Supreme Court

Case Name: State of Wisconsin v. Mastella L. Jackson

Case No.: 2014AP2238-CR

Focus: Inevitable Discovery Doctrine

Absence of bad faith by officers not a requirement for inevitable discovery doctrine to apply.

“Demonstrated historical facts proving active pursuit of an alternative line of investigation at the time of the constitutional violation certainly help the State to substantiate its claim that discovery of otherwise excludable evidence was inevitable. However, requiring proof in all cases of active pursuit at the time of the constitutional violation risks exclusion of evidence that the State might demonstrate that it inevitably would have discovered. For instance, a constitutional violation may occur so quickly after the commission of a crime that there has not been time to launch the kind of comprehensive investigation that would be normal operating procedure.”

Concurring:

Dissenting: ABRAHAMSON, J. and BRADLEY, A. W., J. dissent (Opinion filed).

Full Text

WI Supreme Court

Case Name: Sonja Blake v. Debra Jossart, et al

Case No.: 2012AP2578

Focus: Statutory Challenge

Constitutional challenge to statute that precludes child care licensure to individuals convicted of certain crimes falls short.

“We further decline to hold Wis. Stat. § 48.685(5)(br)5. unconstitutional as applied to Blake. She argues that revocation of her certification without an opportunity to demonstrate rehabilitation denies her equal protection of the law because people with convictions for other “dishonesty related offenses” do not suffer permanent ineligibility. Once again, though, she misidentifies the proper scope for evaluating the classification. Like the childcare provider in Brown, Blake “points to no evidence that she was treated differently from any similarly-situated childcare provider whose license was revoked under the new law.” Brown, 341 Wis. 2d 449, ¶43. Indeed, since enactment of Act 76, this is the third published case involving a childcare provider facing revocation based on a public assistance fraud conviction. See Jamerson v. DCF, 2013 WI 7, ¶23, 345 Wis. 2d 205, 824 N.W.2d 822; Brown, 341 Wis. 2d 449, ¶43. Like Milwaukee County reviewing the credentials at issue in Jamerson and Brown, Racine County revoked Blake’s license upon learning of her forbidden conviction. Brown, 341 Wis. 2d 449, ¶43 (“[T]he facts of Jamerson show that the Department treated [Brown] almost identically to other individuals whose licenses were revoked.”). Because Racine County treated Blake in a manner consistent with the treatment of similarly situated providers in published cases and Blake has not presented evidence to the contrary, her asapplied equal protection claim fails.”

Affirmed

Concurring:

Dissenting: ABRAHAMSON, J. and BRADLEY, A. W., J. dissent (Opinion filed).

Full Text

WI Supreme Court

Case Name: State of Wisconsin v. Leopoldo R. Salas Gayton

Case No.: 2013AP646-CR

Focus: Court Error

Court did not rely on improper factor in sentencing.

“Other cases that Salas Gayton cites note the principle that sentencing courts may not constitutionally impose a sentence based on national origin——a principle that this court unquestionably embraces. See Alexander, 360 Wis. 2d 292, ¶23. But those cases nevertheless leave open the possibility that a sentencing court might consider a defendant’s relevant illegal conduct related to immigration without denying the defendant due process of law. See, e.g., Yemson v. United States, 764 A.2d 816, 819 (D.C. 2001) (“This does not mean . . . that a sentencing court, in deciding what sentence to impose, must close its eyes to the defendant’s status as an illegal alien and his history of violating the law, including any law related to immigration.”). Even the most inflexible of the cases that Salas Gayton cites——which holds that “immigration status per se is not relevant”——acknowledges that “circumstances that demonstrate a defendant’s unwillingness to conform his conduct to legal requirements, whether or not there are criminal consequences, may be” relevant to a sentencing determination. State v. Zavala-Ramos, 840 P.2d 1314, 1316 (Or. Ct. App. 1992). “Faced with the responsibility of sentencing . . . , the judge [cannot], and would . . . [be] remiss if he did, ignore the realities of the case.” United States v. Gomez, 797 F.2d 417, different than any other recent prior illegal act of any defendant being sentenced for any offense”).”

Affirmed

Concurring: BRADLEY, A. W., J. and ABRAHAMSON, J. concur (Opinion filed).

Dissenting:

Full Text

WI Supreme Court

Case Name: Dennis D. Dufour v. Progressive Classic Insurance Company et al.

Case No.: 2014AP157

Focus: Made Whole Doctrine

Made whole doctrine did not preclude insurer from retaining funds it received from its subrogation claim.

“As we have explained above, Dairyland paid Dufour every dollar to which he was entitled under its policy. Therefore, Dairyland did not breach its insurance contract. That Dairyland sought and obtained subrogation for payments it made to Dufour is not in contravention of the parties’ contract. Quite to the contrary, Dairyland’s policy specifically provided, “[a]fter we have made payment under this policy and, where allowed by law, we have the right to recover the payment from anyone who may be held responsible.” As insurer of the tortfeasor, American Standard was a person who may be held responsible for the tortfeasor’s negligence and it was from American Standard that Dairyland obtained subrogation. Accordingly, we conclude that Dairyland did not act in bad faith by retaining the funds it obtained as subrogation.”

Reversed

Concurring:

Dissenting: ABRAHAMSON, J. and BRADLEY, A. W., J. concur and dissent (Opinion filed).

Full Text

WI Supreme Court

Case Name: 1999AP62-D; 2002AP2962-D

Case No.: Board of Attorneys Professional Responsibility v. Jane A. Edgar

Focus: Disciplinary Proceedings

Attorney license is reinstated with certain conditions

“The OLR also acknowledges that Attorney Edgar has expressed “deep regret” for her misconduct. Attorney Edgar has satisfied the costs imposed on her in connection with her 1999 disciplinary case, paid full restitution to former clients as required by her 2003 suspension order, and has paid the costs associated with her first attempt at reinstatement. And, significantly, Attorney Edgar has addressed mental health issues that previously compromised her ability to function as a lawyer. Consequently, many of the conditions imposed in prior disciplinary proceedings are no longer warranted. “

Concurring:

Dissenting:

Full Text

WI Supreme Court

Case Name: Office of Lawyer Regulation v. William J. Spanger

Case No.: 2014AP2633-D

Focus: Disciplinary Proceedings

Attorney license is suspended for numerous violations

“Even though Attorney Spangler has no prior disciplinary history and even though we acknowledge the existence of various other mitigating factors, we conclude that the misconduct at issue here is more serious than the misconduct at issue in either Fitzgerald or Mauch and calls for a more severe sanction. The ruses in Fitzgerald and Mauch were of relatively short duration and involved only one case. By contrast, Attorney Spangler falsified documents in two cases and, over the span of years, created a whole host of documents for the sole purpose of misleading his clients into believing that their suits were pending when in fact they were not. Accordingly, we conclude that a six-month suspension of Attorney Spangler’s license to practice law in Wisconsin is an appropriate sanction. A six-month suspension, which will require Attorney Spangler to file a petition for reinstatement, see SCR 22.28(3), will impress upon him the seriousness of his misconduct and deter other attorneys from engaging in similar misconduct in the future. We agree with the referee that Attorney Spangler should bear the full costs of this proceeding.

Concurring:

Dissenting:

Full Text

WI Supreme Court

Case Name: Office of Lawyer Regulation v. Peter J. Kovac

Case No.: 2015AP654-D

Focus: Disciplinary Proceedings

Attorney license suspended for multiple violations

We also agree with the referee that a 90-day suspension of Attorney Kovac’s license to practice law in Wisconsin is an appropriate sanction for his misconduct. We share the referee’s concern that, in spite of receiving two prior public reprimands for, among other things, failing to diligently represent and communicate with criminal clients and failing to cooperate with the OLR’s investigation into pending grievances, Attorney Kovac has continued to engage in the same type of behavior that led to the public reprimands. As we have oft noted, Wisconsin follows the concept of progressive discipline. See In re Disciplinary Proceedings Against Brandt, 2012 WI 8, ¶21, 338 Wis. 2d 524, 808 N.W.2d 687. We agree with the referee that a 90-day suspension is necessary to protect the public, the courts, and the legal system from repetition of Attorney Kovac’s misconduct; impress upon the attorney the seriousness of his misconduct; and deter other attorneys from committing similar misconduct.

Concurring:

Dissenting:

Full Text

US Supreme Court Digests

US Supreme Court

Case Name: McDonnell v. United States

Case No.: 15-274

Focus: Official Act

An “official act” is a decision or action on a “question, matter, cause, suit, proceeding or controversy.”

“That question or matter must involve a formal exercise of governmental power, and must also be something specific and focused that is “pending” or “may by law be brought” before a public official. To qualify as an “official act,” the public official must make a decision or take an action on that question or matter, or agree to do so. Setting up a meeting, talking to another official, or organizing an event—without more—does not fit that definition of “official act.””

Vacated and Remanded

Concurring:

Dissenting:

Full Text

US Supreme Court

Case Name: Whole Woman’s Health v. Hellerstedt

Case No.: 15-274

Focus: Res Judicata

Petitioners constitutional claims are not barred by res judicata

“Res judicata neither bars petitioners’ challenges to the admitting-privileges requirement nor prevents the Court from awarding facial relief. The fact that several petitioners had previously brought the unsuccessful facial challenge in Abbott does not mean that claim preclusion, the relevant aspect of res judicata, applies. Claim preclusion prohibits “successive litigation of the very same claim,” New Hampshire v. Maine, 532 U. S. 742, 748, but petitioners’ as-applied postenforcement challenge and the Abbott plaintiffs’ facial preenforcement challenge do not present the same claim. Changed circumstances showing that a constitutional harm is concrete may give rise to a new claim. Abbott rested upon facts and evidence presented before enforcement of the admitting-privileges requirement began, when it was unclear how clinics would be affected. This case rests upon later, concrete factual developments that occurred once enforcement started and a significant number of clinics closed.”

Reversed and Remanded

Concurring: GINSBURG

Dissenting: THOMAS, ALITO, ROBERTS

Full Text

US Supreme Court

Case Name: Vosine v. United States

Case No.: 14-10154

A reckless domestic assault qualifies as a misdemeanor crime of domestic violence under §922(g)(9).

“That conclusion follows from the statutory text. Nothing in the phrase “use. . . of physical force” indicates that §922(g)(9) distinguishes between domestic assaults committed knowingly or intentionally and those committed recklessly. Dictionaries consistently define the word “use” to mean the “act of employing” something. Accordingly, the force involved in a qualifying assault must be volitional; an involuntary motion, even a powerful one, is not naturally described as an active employment of force. See Castleman, 572 U. S., at ___. But nothing about the definition of “use” demands that the person applying force have the purpose or practical certainty that it will cause harm, as compared with the understanding that it is substantially likely to do so. Nor does Leocal v. Ashcroft, 543 U. S. 1, which held that the “use” of force excludes accidents. Reckless conduct, which requires the conscious disregard of a known risk, is not an accident: It involves a deliberate decision to endanger another. The relevant text thus supports prohibiting petitioners, and others with similar criminal records, from possessing firearms.”

Affirmed

Concurring:

Dissenting: THOMAS, SOTOMAYOR

Full Text