Weekly Case Digests — Jan. 30 – Feb. 3, 2017

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Equal Employment Opportunity Commission v. Flambeau, Inc.,

Case No.: 16-1402

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

Focus: ADA – Insurance Provisions – Involuntary Medical Examinations

On the merits, this Americans with Disabilities Act case would turn on the interplay between the ADA’s prohibition on involuntary medical examinations and its insurance safe-harbor provision. See 42 U.S.C. §§ 12112(d)(4) and 12201(c). Defendant Flambeau, Inc. adopted an employee wellness program. It required its employees, as a condition of receiving employer-subsidized

health insurance, to fill out a medical questionnaire and to undergo biometric testing. One employee did not meet those requirements in time for the 2012 benefit year. As a result, he and his family were briefly without health insurance. He filed a complaint with the Equal Employment Opportunity Commission, and the EEOC then filed this suit against Flambeau. The EEOC contends that Flambeau’s requirement violated the ADA’s ban on involuntary medical examinations in 42 U.S.C. § 12112(d)(4). On cross-motions for summary judgment, the district court granted Flambeau’s motion and dismissed the case. The EEOC has appealed.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Alan Cisneros

Case No.: 16-1300

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

Focus: Sentencing – Enhancement

On June 23, 2015, Alan Cisneros pled guilty to possession with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 846. The facts as developed at the plea hearing and during sentencing reveal that Cisneros was a high-ranking member of the Latin Kings and was involved in a large-scale drug trafficking operation in Summit, Illinois. In the 10-month period between approximately August 2011 and May 2012, Cisneros admits that he was responsible for the purchase or sale of between 3.5 and 5 kilograms of cocaine, but he disputes the government’s calculation—accepted by the district court—that the amount exceeded 5 kilograms. The district court determined that the Sentencing Guidelines range applicable to Cisneros was 188– 235 months, and sentenced him to 188 months’ imprisonment, a supervised release term of four years, a special assessment of $100, and repayment to the government of $34,600 in “buy money” provided to Cisneros during the course of his offense. Cisneros now appeals his sentence on three grounds. First, he argues that the district court, in calculating the applicable discretionary Sentencing Guidelines range, improperly imposed a two-level enhancement for obstruction of justice. In addition, Cisneros argues that the district court should have granted him a three-level reduction for acceptance of responsibility. Finally, he contends that the district court erred in determining that his offense involved more than 5 kilograms of cocaine.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Lawrence Hayes v. Gregg Scott

Case No.: 16-1262

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

Focus: Deliberate Indifference

The Rushville Treatment and Detention Facility in Rushville, Illinois, houses persons adjudged to be sexually violent; often they are persons who have completed prison sentences for sexually violent acts but are considered too dangerous to be released into the general population; so they remain confined, though in a facility (Rushville) that is not, at least technically, a prison. See,

e.g., Hughes v. Scott, 816 F.3d 955, 955–56 (7th Cir. 2016). The plaintiff, a detainee at Rushville named Lawrence Hayes, sued Gregg Scott, Rushville’s acting director, claiming that Scott was deliberately indifferent to Hayes’s hydration needs during a five-day “boil order” imposed by the City of Rushville and applicable to the treatment and detention facility. The boil order directed residents of Rushville (including the detainees in the treatment and detention center) to boil tap water before drinking it. The detainees have sinks in their rooms and access to a microwave oven, so during the five days in which the boil order was in effect Hayes could boil the water from his sink in his microwave. He was also given an eight-ounce carton of milk at each of his three daily meals. Yet he claims to have gone without any drinkable water for five days, during which time he felt dizzy and dehydrated.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Michael Anglin

Case No.: 15-3625

Officials: EASTERBROOK and WILLIAMS, Circuit Judges, and FEINERMAN, District Judge

Focus: Sentencing – Supervised Release Conditions

A jury found Michael Anglin guilty of Hobbs Act robbery, discharging a firearm in furtherance of a crime of violence (the Hobbs Act robbery) under 18 U.S.C. § 924(c), and related offenses. The district court sentenced him to 230 months’ imprisonment, followed by three years of supervised release. Anglin appeals, pressing three challenges. First, he con‐ tends that the police arrested him without probable cause in violation of the Fourth Amendment, requiring suppression of the arrest’s fruits. Second, he contends that his § 924(c) conviction was improper because Hobbs Act robbery is not a qualifying crime of violence. Third, he contends that his sentence is improper in various respects. Except for his challenge to the supervised release conditions, Anglin’s arguments are without merit, so we affirm in large part and vacate and remand only as to that component of his sentence.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Thomas M. James v. Lorenzo Eli, et al

Case No.: 15-3034

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

Focus: Deliberate Indifference

James, a former inmate of Indiana’s New Castle Correctional Facility, appeals from an adverse judgment, following the district judge’s grant of summary judgment for the defendants, in his suit under 42 U.S.C. § 1983 against two doctors who he contends were deliberately indifferent to his need for medical treatment for an infected toenail and an injury to his jaw.

Vacated and Remanded

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7^th Circuit Court of Appeals

Case Name: Rollie M. Mitchell v. United States of America

Case No.: 14-3759

Officials: BAUER, MANION, and HAMILTON, Circuit Judges

Focus: Ineffective Assistance of Counsel

After his conviction for cocaine distribution, Petitioner Rollie Mitchell appealed his sentence; this Court affirmed. Petitioner then filed a motion for post‐ conviction relief under 28 U.S.C. § 2255, claiming that he received ineffective assistance of counsel. He argued that prior to trial, his attorney failed to inform him adequately of the details of the government’s plea offer and failed to advise him of the potential ramifications of rejecting the offer and proceeding to trial. The district court denied the motion, finding that counsel’s performance was adequate and that Petitioner could not demonstrate that, absent any deficient performance, he would have accepted the plea offer. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: McGarry  McGarry, LLC v. Rabobank, N.A.

Case No.: 16-3164

Officials: POSNER, MANION, and WILLIAMS, Circuit Judges

Focus: Bank Holding Company Act

Eugene Crane, the trustee in the bankruptcy of a company named Integrated Genomics, Inc., hired BMS to provide a variety of services in Integrated’s bankruptcy proceeding. The parties’ contract required the trustee to hire Rabobank to provide banking services to him in the proceeding and to deposit with the bank substantially all of the funds in any bankruptcy estate in which the trustee uses BMS’s services. A separate contract between the trustee and the bank, to which BMS was not a party, authorized Rabobank to with‐ draw from the funds a monthly fee for the services it renders in the bankruptcy proceeding. These contracts may have been the product of a prior agreement between BMS and Rabobank in which BMS promised Rabobank that it would require trustees who used its services to hire Rabobank and Rabobank promised BMS that it would remit to BMS a portion of the fees it obtained. The plaintiff, a law firm, was a modest creditor of Integrated and filed a claim in the bankruptcy proceeding, at the conclusion of which it received a distribution of $12,472.55. It would have received $12,666.90 had not the trustee de‐ ducted $194.35 to pay for a small part of Rabobank’s fee for providing banking services to him, and even more had Ra‐ bobank paid interest on the bankruptcy estate’s deposits, which it did not. The plaintiff alleges that the three contracts—between Rabobank and BMS, between the trustee and BMS, and be‐ tween the trustee and Rabobank—violated 12 U.S.C. § 1972(1)(E), a section of the Bank Holding Company Act that states that “a bank shall not in any manner extend cred‐ it, lease or sell property of any kind, or furnish any service, or fix or vary the consideration for any of the foregoing, on the condition or requirement … that the customer shall not obtain some other credit, property, or service from a compet‐ itor of such bank, a bank holding company of such bank, or any subsidiary of such bank holding company, other than a condition or requirement that such bank shall reasonably impose in a credit transaction to assure the soundness of the credit.” The plaintiff argues that by requiring the trustee in the Integrated bankruptcy to obtain banking services exclu‐ sively from Rabobank, the bank conditioned its provision of services on the trustee’s not obtaining equivalent services from a competitor of that bank, and so violated the Act.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Lana Canen v. Dennis Chapman

Case No.: 16-1621

Officials: RIPPLE, ROVNER, and SYKES, Circuit Judges. RIPPLE, Circuit Judge.

Focus: Misidentification – Qualified Immunity

Lana Canen was convicted of felony murder on August 10, 2005 in Indiana state court. Over seven years later, the state postconviction court vacated her conviction after Detective Dennis Chapman, the state’s fingerprint expert, recanted his trial testimony. He conceded that he mistakenly had identified a latent fingerprint found at the crime scene as belonging to Ms. Canen. The misidentification occurred because Detective Chapman only was trained to compare “known prints” (i.e., digital, ink, or powder fingerprint exemplars), not “latent prints” (i.e., invisible, unknown fingerprints found at a crime scene), and thus lacked the necessary qualifications to identify the latent print removed from the crime scene. At no time had he disclosed his lack of training to any party in the underlying state criminal proceeding. Following her release, Ms. Canen brought this action against Detective Chapman under 42 U.S.C. § 1983. She claimed that he had withheld his lack of qualification to perform latent fingerprint analysis and therefore had violated Brady v. Maryland, 373 U.S. 83 (1963). The district court dismissed the case at summary judgment. It held that Detective Chapman was entitled to qualified immunity. Ms. Canen then filed an appeal in this court. We now hold that the district court’s analysis was correct. Detective Chapman’s failure to disclose that he was not trained as a latent print examiner cannot be characterized as a violation of any clearly established right, and, accordingly, the doctrine of qualified immunity protects Detective Chapman. Moreover, to the degree that this action is premised on the preparation or presentation of his trial testimony, absolute immunity protects him. Accordingly, we affirm the judgment of the district court

Affirmed

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7^th Circuit Court of Appeals

Case Name: Arlington Specialties, Inc. v. Urban Aid, Inc.

Case No.: 14-3416

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

Focus: Intellectual Property – Trade Dress

This Lanham Act case turns on whether the shape and design of a small bag, modeled after a men’s Dopp Kit and used in personal care kits, are functional and therefore not protected as trade dress. Plaintiff sells personal care kits in such a bag. When another personal care kit seller copied plaintiff’s bag, plaintiff sued, claiming the bag was protected trade dress. The district court granted summary judgment in defendant’s favor, finding that the bag’s design and shape were functional. We agree, so we affirm the district court’s decision.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Legato Vapors, LLC, et al v. David Cook, et al 

Case No.: 16-3071

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

Focus: Commerce Clause – Extraterritorial Reach

In 2015 the State of Indiana enacted the Vapor Pens and E-Liquid Act to regulate the manufacture and distribution of vapor pens and the liquids used in so-called e-cigarettes. 2015 Ind. Acts 1870, Ind. Code §§ 7.1-7- 1-1 et seq. The Act is written so as to have extraterritorial reach that is unprecedented, imposing detailed requirements of Indiana law on out-of-state manufacturing operations. The Act regulates the design and operation of out-of-state production facilities, including requirements for sinks, cleaning products, and even the details of contracts with outside security firms and the qualifications of those firms’ personnel. Imposing these Indiana laws on out-of-state manufacturers violates the dormant Commerce Clause of the United States Constitution. The federal Constitution leaves Indiana ample authority to regulate in-state commerce in vapor pens, e-liquids, and e-cigarettes to protect the health and safety of its residents. For example, the Act’s prohibitions on sales to minors, its requirements for child-proof packaging, ingredient labeling, and purity, and requirements for in-state production facilities pose no inherent constitutional problems. Indiana may not, however, try to achieve those health and safety goals by directly regulating out-of-state factories and commercial transactions. As applied to out-of-state manufacturers, the challenged provisions of the Act violate the dormant Commerce Clause prohibition against extraterritorial legislation. We reverse the judgment of the district court dismissing this case and remand with instructions to enjoin enforcement of the challenged provisions against the plaintiffs and to declare the challenged provisions unenforceable against out-of-state manufacturers. To explain our reasons, we first review the statutory provisions and procedural history of the case. Then we apply the Commerce Clause analysis to three categories of challenged provisions: security terms, clean room specifications, and audit requirements.

Reversed and remanded

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: State of Wisconsin v. David Hager, Jr.

Case No.: 2015AP330

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

Focus: Civil Commitment

David Hager, Jr., appeals an order denying without a trial his 2014 petition seeking discharge from his WIS. STAT. ch. 980 commitment as a “sexually violent person.” Hager also appeals the order denying his motion for reconsideration. Hager and the State dispute the effects of certain amendments to the discharge statute, WIS. STAT. § 980.09, enacted as part of a legislative overhaul of ch. 980 in 2013. See generally 2013 Wis. Act 84 (hereinafter, “Act 84”). Act 84 changed the standards under both § 980.09(1) and (2) for the circuit court’s determination of whether a petitioner will receive a discharge trial. Those subsections now require the court to determine whether, at an ensuing discharge trial, a factfinder “would likely conclude” the petitioner no longer meets the criteria for commitment as a sexually violent person. The previous “may conclude” standard required the court to determine whether it was merely possible for the factfinder to conclude as such. At oral argument in this case, the parties generally agreed the legislature’s substitution of a “would likely conclude” standard for the former “may conclude” standard accomplished a material increase in the burden of production necessary to obtain a discharge trial under both levels of review in WIS. STAT. § 980.09(1) and (2). However, the State also argues the amendments to § 980.09(2) now require the circuit court to weigh the facts in support of the petition against facts unfavorable to the petition in ascertaining whether a factfinder would likely conclude discharge is required. The State argues the amendments to § 980.09(2) effectively abrogated State v. Arends, 2010 WI 46, 325 Wis. 2d 1, 784 N.W.2d 513.

We disagree and conclude the process set forth in Arends largely remains good law. The changes to WIS. STAT. § 980.09(2) as a whole do not permit circuit courts to “weigh” the evidence favorable to the petition against the evidence unfavorable to it. Rather, the amendments clarify the statute so as to reflect judicial interpretations of the statutory language since the last major revisions in 2006. At the same time, the amendments undisputedly increase the petitioner’s burden of production to convince a circuit court that all evidence within the record favorable to the petitioner, including those facts submitted with the petition, establishes a reasonable likelihood of success at a discharge trial.

Recommended for publication

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Howard Carter

Case No.: 2015AP1311

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

Focus: Civil Commitment

Howard Carter appeals an order denying without a trial his 2013 petition seeking discharge from his WIS. STAT. ch. 980 commitment as a “sexually violent person,”1 as well as an order denying his motion for reconsideration. Carter contends his initial attorney rendered constitutionally ineffective assistance by failing to challenge the retroactive application of the then-recently amended WIS. STAT. § 980.09 to his discharge petition. The discharge petition was filed prior to the legislation’s effective date, but the circuit court had not yet decided or held a hearing on the petition’s sufficiency. Carter concedes the statutory provisions at issue in this case, WIS. STAT. § 980.09(1) and (2), are procedural. The amendments to those subsections had the effect of accomplishing “a material increase in the petitioner’s burden of production” necessary to obtain a discharge trial. State v. Hager, 2017 WI App __, ¶32, ___ Wis. 2d ___, ___ N.W.2d ___. Whereas a petitioner was previously entitled to a discharge trial if there were any facts upon which a reasonable factfinder could grant relief, the new standard requires the petitioner to “demonstrate a reasonable likelihood of success in order to obtain a discharge trial.” Id. Contrary to Carter’s arguments, the new legislation did not disturb any vested right of Carter’s to a discharge trial, nor does it pose an unreasonable burden to his obtaining a discharge trial. We conclude § 980.09(1) and (2) apply retroactively to Carter’s petition. Because the amendments to WIS. STAT. § 980.09(1) and (2) operate retroactively, Carter’s attorney was not ineffective for failing to raise that issue. Carter alternatively argues that if the amendments apply to his discharge petition, they work an unconstitutional deprivation of his due process rights. For the reasons we articulated in Hager, we reject this argument. We therefore affirm the orders in this case.

Recommended for publication

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. David Lee

Case No.: 2015AP1977-CR

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

Focus: Miranda Warnings – Motion to Suppress

David Lee appeals from a judgment of conviction entered after he pled guilty to the following crimes: two counts of being a felon in possession of a firearm; one count of possession of cocaine with intent to deliver (more than 40 grams); one count of possession with intent to deliver THC (between 2500 and 10,000 grams); and one count of possession of methamphetamine. See WIS. STAT. §§ 941.29(2)(a), 961.41(1m)(cm)4., 961.41(1m)(h)4., & 961.41(3g)(g) (2011-12). Prior to sentencing, Lee moved to withdraw his pleas, asserting that his trial counsel provided ineffective assistance by failing to file a suppression motion alleging a Miranda violation. See Miranda v. Arizona, 384 U.S. 436 (1966). The trial court concluded that Lee was not prejudiced by any alleged deficiency in his trial counsel’s performance because even if trial counsel had filed such a motion, it would have been denied. Having rejected Lee’s allegations of ineffective assistance of counsel, the trial court found that Lee had not shown a “fair and just reason” to withdraw his pleas prior to sentencing. See State v. Jenkins, 2007 WI 96, ¶32, 303 Wis. 2d 157, 736 N.W.2d 24 (recognizing that a defendant can withdraw his plea prior to sentencing if he proves “by a preponderance of the evidence that he has a fair and just reason”). On appeal, Lee argues that the suppression motion would have been granted if his trial counsel had brought it and, therefore, his allegations of ineffective assistance constituted a fair and just reason to withdraw his guilty pleas prior to sentencing. We reject his argument and affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. John A. Casteel

Case No.: : 2015AP2501-CR; 2015AP2502-CR

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

Focus: Sentencing – Penalty Enhancer

John Casteel, a/k/a Tayr Kilaab al Ghashiyah, appeals an order amending two judgments of conviction. At the request of the Department of Corrections, the circuit court clarified that the thirty-year sentence imposed in circuit court case No. 1985CR7801 (now known as No. 1985CF780) was partially based on the penalty enhancer for habitual criminality pursuant to WIS. STAT. § 939.62(1)(c).  The circuit court also modified the judgment of conviction in circuit court case No. 1985CR1026 (now known as No. 1985CF1026) to remove 165 days of sentence credit. Casteel argues he was entitled to notice and an opportunity to be heard before the circuit court amended the judgments. We reject that argument and other issues Casteel attempts to raise that are not related to the amendments

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WI Court of Appeals – District III

Case Name: Citizens Community Federal, N.A. v. Larry L. Werner, et al

Case No.: 2015AP2556

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

Focus: Foreclosure

Larry Werner, pro se, appeals a summary judgment of foreclosure in favor of Citizens Community Federal N.A. claiming the motion was untimely and his signatures on loan documents were forged. We affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin ex rel. Private Attorney General Thomas Lee Anderson v. Jon M. Theisen

Case No.: 2015AP2579

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

Focus: Foreclosure – Motion for Reconsideration

Thomas Anderson, pro se, appeals from an order dismissing his action challenging the authority of a circuit court judge to act in a prior foreclosure action in which Anderson was a defendant, and denying a motion for temporary injunction related to the foreclosure action. Anderson also appeals the denial of a motion for reconsideration. We affirm.

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WI Court of Appeals – District III

Case Name: Oconto County v. Robert J. Kolkowski

Case No.: 2016AP264; 2016AP265

Officials: Hruz, J.

Focus: Forfeiture – Ordinance Violation

Robert Kolkowski, pro se, appeals two judgments entered in favor of Oconto County imposing civil forfeitures for his violations of zoning ordinances. We affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Larry L. George

Case No.: 2016AP525-CRAC

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

Focus: Sentencing – Sentence Credit

Larry George appeals orders denying his motion for additional sentence credit or sentence modification based on new factors, and denying his motion for reconsideration. George contends: (1) his sentence at issue was made consecutive to a sentence that he was not serving at the time, and therefore it should be treated as a concurrent sentence; and (2) the sentencing judge’s comments show the court expected that George would be entitled to mandatory release after serving ten years in prison, which is inconsistent with the presumptive mandatory release law, and correcting that alleged error constitutes a new factor justifying a sentence reduction. We reject these arguments and affirm the orders.

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WI Court of Appeals – District III

Case Name: Horizon Bank, N.A. v. Marshalls Point Retreat, LLC et al

Case No.: 2016AP832

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

Focus: Foreclosure – Money Judgment Credit

Horizon Bank, National Association, (Horizon Bank) sued to foreclose a mortgage and enforce a guaranty made by Allen Musikantow. Upon the parties’ stipulation, a foreclosure judgment was entered, along with a money judgment against Musikantow. The foreclosure judgment provided the proceeds of the sale of the subject premises would be credited toward the money judgment. However, the circuit court later refused to determine the amount of the credit, based on a governing law provision in the guaranty that, according to the court, “indicat[ed] … [the guaranty was] to be governed by Federal Law.” We agree with Horizon Bank that the circuit court erred by refusing to determine the amount of the credit and apply that amount to the money judgment against Musikantow. We therefore reverse the order refusing to apply a credit against the money judgment and remand with directions that the court apply a credit of $2,250,000—the amount of the winning bid at the sheriff’s sale.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. P.T.

Case No.: 2016AP1460

Officials: Brash, J.

Focus: Termination of Parental Rights

P.T. appeals an order terminating his parental rights to his son, X.L.T. He also appeals the order denying his postdispositional motion. On appeal, P.T.’s sole argument is that the postdisposition court erred when it examined the transcript of the colloquy regarding P.T.’s stipulation to grounds in determining whether P.T. failed to establish a prima facie case that his stipulation was not knowingly, intelligently, and voluntarily made. We disagree and affirm.

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WI Court of Appeals – District II

Case Name: Jon Haas v. The City of Oconomowoc

Case No.: 2015AP1560; 2015AP1956

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

Focus: Eminent Domain

Jon Haas and Kenneth Herro (appellants) appeal from an order dismissing their complaint against the City of Oconomowoc (City) for just compensation for their property (the property) which was taken by eminent domain and also appeal from an order denying their motion for reconsideration.  Appellants argue the circuit court erred when it dismissed the action on the basis the City’s community development authority (CDA) was the condemnor of the property and appellants “should have … named” it as a defendant. Asserting the doctrine of apparent authority applies in this case, appellants contend the City, not the CDA, condemned the property by performing all the necessary steps for condemnation either directly or through the CDA acting as the City’s agent. The City counters that the CDA was the condemnor of the property and the court lacked personal jurisdiction over the CDA because appellants did not name it as the defendant. We agree with appellants that the City, not the CDA, condemned the property; thus appellants properly named the City as the condemnor-defendant, and the circuit court erred in dismissing this action. In response to the City’s assertion that the court lacked personal jurisdiction over the CDA, we also point out that appellants have never named, sought redress from, or advocated for jurisdiction over the CDA, and thus the City’s contention the court lacked jurisdiction over the CDA goes nowhere. We reverse and remand for further proceedings.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Anthony Q. Wallace

Case No.: 2015AP2295

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

Focus: Motion for New Trial

Anthony Q. Wallace appeals from an order denying his motion for a new trial pursuant to WIS. STAT. §§ 974.06 and 974.07 (2015-16), based on the results of postconviction DNA testing. We affirm the order.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Michael Chough

Case No.: 2016AP406-CR

Officials: Hagedorn, J.

Focus: OWI – Probable Cause

Michael Chough appeals from his conviction for operating a motor vehicle while intoxicated (OWI). He contends that a blood test revealing an alcohol concentration above the legal limit should have been excluded on two grounds. First, he argues that police lacked probable cause to arrest him, and consequently, the blood draw was fruit of an illegal arrest. Second, he claims that the circuit court improperly admitted the expert testimony laying the foundation for the test. We reject both arguments and affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Brandon M. Swiecichowski

Case No.: 2016AP1808-CR

Officials: Neubauer, C.J.

Focus: Motion to Suppress

Brandon M. Swiecichowski appeals from a judgment convicting him of operating a motor vehicle while intoxicated (OWI), second offense, contrary to WIS. STAT. § 346.63(1)(a). Swiecichowski contends that the circuit court erroneously denied his motion to suppress evidence because the officer who stopped him lacked reasonable suspicion that he committed a traffic infraction. We agree and thus reverse the judgment and remand for further proceedings.

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WI Court of Appeals – District IV

Case Name: Leah Johnson and Mitch v. City of Madison Zoning Board of Appeals

Case No.: 2014AP2497

Officials: Lundsten, Higginbotham and Blanchard, JJ.

Focus: Zoning  – Variance Request

Leah Johnson and Mitch (collectively, “Johnson”) appeal a decision by the City of Madison Zoning Board of Appeals, which denied Johnson’s request for a setback variance. Johnson owns a reverse-corner lot in the Greenbush Neighborhood of Madison, which is a TR-C3 zoning district. Johnson wishes to replace the 246-square-foot detached garage currently on her lot with a 660-square-foot garage. Madison’s zoning regulations require a ten-foot setback for garages on reverse-corner lots in TR-C3 districts. Johnson requested a setback variance to build the proposed garage five feet into the setback area. The Board heard and rejected Johnson’s variance request. Johnson appealed to the circuit court, which sustained the Board’s decision. Johnson appeals.

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WI Court of Appeals – District IV

Case Name: Bushman Farms, Inc. v. Dairyland Real Estate, LLC

Case No.: 2014AP2989

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

Focus: Court Error – Contract

This appeal arises out of Bushman Farms, Inc.’s allegations that Dairyland Real Estate, LLC, did not perform under the terms of a listing contract entered into by the parties, and therefore, Dairyland is not entitled to retain the commission paid by Bushman after the successful sale of Bushman’s land. Bushman’s argument on appeal is that the circuit court erred by determining that Dairyland is entitled to retain the commission because Dairyland did not perform under a strict construction of the listing contract. For the reasons that follow, we reject this argument and affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Jeff C. Hilgers

Case No.: 20145AP2256-CR

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

Focus: Statutory Interpretation – Jury Instructions

Jeff Hilgers appeals a conviction, following a jury trial, for second-degree sexual assault by corrections staff, contrary to WIS. STAT. § 940.225(2)(h) (2011-12). Hilgers contends that instructions to the jury misstated a requirement in § 940.225(2)(h) and that when the evidence is measured against a correct interpretation of the statute, the evidence was insufficient to support his conviction. For the reasons discussed below, we affirm.

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WI Court of Appeals – District IV

Case Name: Howard C. Nelson et al v. Nancy Furrer, et al

Case No.: 2016AP38

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

Focus: Sale Proceeds – Satisfaction of Judgment

Steven O’Connor appeals the circuit court’s decision and order directing the distribution of the proceeds of a sale of real property, and the court’s subsequent order denying his motion for reconsideration. In its first decision and order, the circuit court ordered that those proceeds be distributed to plaintiffs Hyrad Corporation and Howard Nelson to satisfy a 2010 judgment requiring Hyrad to pay attorney’s fees and costs to Boardman Law Firm, which successfully represented Hyrad and Nelson in this shareholder derivative action. O’Connor contends that those proceeds should instead be distributed to him to satisfy a 2012 judgment that he obtained in a separate action. The 2012 judgment ordered Hyrad to pay attorney’s fees to O’Connor, who represented the defendants in this shareholder derivative action. For the reasons stated, we affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Brianna L. Flahavan

Case No.: 2016AP1133-CR

Officials: Lundsten, J.

Focus: Motion to Suppress

Brianna Flahavan challenges the circuit court’s order denying her suppression motion. According to Flahavan, evidence against her was obtained illegally because it was the result of a temporary investigative stop that was not supported by reasonable suspicion that she was engaged in criminal behavior. I conclude that the facts known to police at the time of the temporary seizure supplied the requisite reasonable suspicion. Accordingly, I affirm the circuit court.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Paula L. Elbe

Case No.: 2016AP2012; 2016AP2013

Officials: Blanchard, J.

Focus: Court Error – Appointment of Counsel

Emory Elbe and Paula Elbe jointly challenge the decisions of the Hon. Michael P. Screnock to deny their motions to vacate their judgments of conviction for disorderly conduct and to deny their motions for reconsideration. The Elbes argue that, after they were charged in 1996, the Hon. Patrick J. Taggart improperly denied their requests for appointment of counsel. I affirm because, at a minimum, Emory and Paula failed to provide Judge Screnock with sufficient evidence to conclude that Judge Taggart clearly erred or erroneously exercised his discretion in denying their 1996 motions.

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