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Weekly Case Digests — Dec. 11-Dec. 15, 2017

By: WISCONSIN LAW JOURNAL STAFF//December 15, 2017//

Weekly Case Digests — Dec. 11-Dec. 15, 2017

By: WISCONSIN LAW JOURNAL STAFF//December 15, 2017//

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7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Stacy Harrington, et al. v. Andrew Banks

Case No.: 17-3179; 17-3194

Officials: HAMILTON, Circuit Judge.

Focus: Motion to Consolidate Appeals

In these two similar appeals from actions of the Social Security Administration, the appellants have filed a motion to consolidate the appeals, to adopt a briefing schedule, and to allow briefs that are a little longer than would be allowed in each appeal by itself. The motion asserts that both the facts and the legal issues in the appeals are essentially identical. When the motion was filed, it was referred to me as the motions judge for the week.

While the motion seemed sensible, this is an adversarial system. Experience teaches that case-management matters— even matters as mundane as brief length, briefing schedules, and consolidation—can sometimes have tactical or strategic effects for the parties that courts cannot predict reliably. The court has the option of reaching out to opposing parties and inviting a response, and often does so. Another option for the court is to wait a couple of weeks or so to see if any other party responds. (Rule 27(a)(3)(A) allows ten days for a response, at least in the absence of a more specific order.) In this case, I opted for the latter, passive route, and no response was filed.

To avoid the delay inherent in the sort of caution I exercised here, counsel have their own option for speeding things up: contact counsel for the opposing parties and ask if they will consent to the motion, or at least state that they will not oppose it. Then tell the court in the motion that the other parties consent to or will not oppose the motion. With that message, the court can be confident that it need not wait to protect the interests of the other parties. That said, the motion to consolidate is granted. Appeal Nos. 17-3179 and 17-3194 are consolidated for purposes of briefing and disposition. Briefing will proceed as follows: The joint consolidated brief and required short appendix of appellants Harrington and Banks shall be filed no later than January 3, 2018, with a word limit of 16,500 words. A consolidated brief of appellee shall be filed no later than February 2, 2018, with a word limit of 16,500 words. Any joint consolidated reply brief for appellants shall be filed no later than February 16, 2018, with a word limit of 8,500 words.

Granted

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7th Circuit Court of Appeals

Case Name: Joseph R. Elliott v. Board of School Trustees of Madison Consolidated Schools, et al.

Case No.: 16-4168

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

Focus: Tenure Law – Constitutional Violation

In 2012, an Indiana law took effect amending the State’s teacher tenure law to cut back on the rights of tenured teachers in layoffs. The issue in this appeal is whether the new law violates the Contract Clause rights of a teacher who had tenure before the law took effect.

In 2012, defendant Board of Trustees for Madison Consolidated Schools relied on the new law to lay off plaintiff Joseph Elliott, a teacher who earned tenure fourteen years before the new law took effect, while it retained non-tenured teachers in positions for which Elliott was qualified. Elliott sued, claiming that the amendment violated the Constitution when applied to him. The district court granted summary judgment in Elliott’s favor. Elliott v. Board of School Trustees of Madison Consol. Schools, 2015 WL 1125022 (S.D. Ind. March 12, 2015). We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: DeLaurence Robinson v. Dale Scrogum, et al.

Case No.: 16-3363

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

Focus: Court Error – Abuse of Discretion

DeLaurence Robinson, an inmate in Illinois, alleged in this action under 42 U.S.C. § 1983 that five guards at Pontiac Correctional Center beat him in 2011 as punishment for filing grievances. The district court initially permitted Robinson to proceed on claims of retaliation and excessive force, but later dismissed the case, reasoning that Edwards v. Balisok, 520 U.S. 641 (1997), bars the suit because some of Robinson’s allegations about the altercation conflicted with his disciplinary conviction for assaulting the guards. Because we conclude that the district court abused its discretion in declining to recruit counsel for Robinson, we vacate the judgment and remand for further proceedings.

Vacated and Remanded

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7th Circuit Court of Appeals

Case Name: United States of America ex rel. Kenneth J. Conner v. Amrish K. Mahajan, et al.

Case No.: 17-1162

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

Focus: Issue Preclusion

After losing his job at Mutual Bank, Kenneth Conner brought this qui tam action claiming that the defendants, most of them directors or officers of the bank, had defrauded the government in violation of the False Claims Act, 31 U.S.C. §§ 3729–3733. The United States declined to take over the qui tam action, which Conner eventually settled. But the Federal Deposit Insurance Corporation filed its own lawsuit against many of the same defendants. That case also settled, and Conner thinks he is entitled to a share of the settlement proceeds the FDIC received from the defendants. To that end Conner tried to intervene in the FDIC’s case, and after being rebuffed he filed a motion in this action demanding part of the FDIC’s recovery. The district court denied that request on the ground that, because Conner’s attempt to intervene in the FDIC’s case was rejected, he is barred by the doctrine of issue preclusion from litigating in this suit the question whether he has a cognizable interest in the settlement proceeds. Conner challenges that ruling in this appeal. We agree with the district court’s bottom line but conclude that claim preclusion, rather than issue preclusion, explains this outcome.

Affirmed

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7th Circuit Court of Appeals

Case Name: Ruder M. Calderon-Ramirez v. James W. McCament, et al.

Case No.: 16-4220

Officials: BAUER and HAMILTON, Circuit Judges, and DARROW, * District Judge.

Focus: Immigration

Ruder Calderon-Ramirez, a native and citizen of Guatemala, filed a petition for U Nonimmigrant Status on February 5, 2015. Due to a significant backlog, Ramirez is waiting to be evaluated for the waiting list. On August 15, 2016, he filed a petition for writ of mandamus in the Northern District of Illinois requesting that the district court compel Leon Rodriguez, Director of Homeland Security, and Jeh Johnson, Secretary of Homeland Security, (collectively, “Defendants”), to adjudicate his U-visa petition. Ramirez argues the wait to be placed on the waiting list is unreasonable. The district court granted the Defendants’ motion to dismiss. Ramirez now appeals. For the reasons set forth below, we affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Milan James Brown v. Thomas J. Dart, et al.

Case No.: 16-4179

Officials: MANION and KANNE, Circuit Judges, and MILLER, District Judge.

Focus: False Imprisonment Claim – Statute of Limitations

On July 19, 2013, Milan Brown was sentenced to 300 days’ imprisonment for violating the terms of his probation. At the sentencing hearing, the Illinois circuit court specifically stated that Brown should be released in September 2013, after accounting for good‐time credit. However, in August 2013, staff at the Cook County Jail informed Brown that he would not be released until March. On September 10, 2013, Brown filed a petition for a writ of habeas corpus in state court seeking to remedy the error, but staff at the jail allegedly failed to transport him to court on multiple occasions.

On appeal, Brown challenges only the conclusion that his § 1983 false imprisonment claim was not timely filed. Because the county and Sheriff Dart released Brown from prison more than two years before he filed his claim, the district court’s judgment will be affirmed.

Affirmed

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7th Circuit Court of Appeals

Case Name: Elena Matushkina, et al. Kirstjen M. Nielsen, et al.

Case No.: 17-1336

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

Focus: Immigration

Plaintiffs Elena Matushkina and her daughter Svetlana Son filed this suit against federal officials after a U.S. Consulate denied Matushkina’s immigrant visa application in 2015. The well-established doctrine of consular nonreviewability makes it impossible, or nearly so, for plaintiffs to challenge the visa denial. Plaintiffs insist that their suit does not challenge the visa denial. Instead, they seek relief under the Administrative Procedure Act (“APA”) from the government’s determination that Matushkina was inadmissible when she tried to enter the country back in 2009. The district court dismissed for lack of standing.

This is one of those cases where the line between standing and the merits is rather fine but makes little practical difference. We affirm the dismissal but we do so on the merits rather than for lack of standing. The case is in essence a challenge to the visa denial, and that decision is not subject to judicial review.

Affirmed

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7th Circuit Court of Appeals

Case Name: Saul M. Kaufman, et al. v. J.G. Goodman, et al.

Case No.: 16-1691

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

Focus: Court Error – Abuse of Discretion

Saul Kaufman, as lead plaintiff in a class action, sued American Express Travel Related Services Company, Inc. (“Amex”), alleging claims for breach of contract, unjust enrichment, and statutory fraud related to Amex’s general‐use, prepaid gift cards. Just over two years after Kaufman filed the class action, Kaufman (on behalf of the class) and Amex sought approval from the district court of a settlement agreement that would resolve the action. Almost seven years later, after multiple amended motions for approval and three rounds of notice to the class, the district court granted final approval of the settlement. J.G. Goodman and Carla Santsche (“Intervenors”), who had intervened in the class action, appeal the approval of the settlement. While we recognize this settlement is not without issues, we conclude the district court did not abuse its discretion in approving it.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. John D. Gries, et al.

Case No.: 15-2432; 15-2447

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

Focus: Double Jeopardy Clause

To convict Gries and McCullars of the enterprise offense, the government had to prove that they committed three or more crimes against children “in concert” with three or more persons. 18 U.S.C. § 2252A(g)(2). The jury found them guilty on all charges. At sentencing the parties and the judge overlooked an important point: The conspiracy counts are lesser-included offenses of the enterprise count. Instead of merging those convictions and imposing sentence on the greater offense or lesser offenses alone, the judge imposed concurrent sentences on all three convictions. That error violates the Double Jeopardy Clause. Rutledge v. United States, 517 U.S. 292, 307 (1996). We reverse and remand with instructions to vacate the sentences on either the greater or lesser counts and enter new judgments accordingly. The remaining issues on appeal are meritless.

Reversed and Remanded with Instructions

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7th Circuit Court of Appeals

Case Name: United States of America v. John Foster

Case No.: 17-1703

Officials: BAUER, EASTERBROOK, and SYKES, Circuit Judges.

Focus: Statutory Interpretation

The Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), imposes a 15-year minimum sentence on defendants convicted of illegally possessing a firearm, see id. § 922(g)(1), who also have at least three prior convictions for a “violent felony” or a “serious drug offense.” Id. § 924(e)(1). After John Foster pleaded guilty to illegal gun possession under § 922(g)(1), the district court considered him to have three such qualifying convictions and sentenced him to 15 years in prison. Foster does not contest that two of his prior convictions qualify under ACCA. Those convictions were for dealing in methamphetamine (a serious drug offense), and Indiana robbery, a violent felony, see United States v. Duncan, 833 F.3d 751, 752 (7th Cir. 2016). Foster argues only that his past conviction for burglary—specifically Indiana’s Class B burglary of a dwelling—was not a violent felony and thus he did not have the requisite convictions for the sentencing enhancement. But his argument is foreclosed by United States v. Perry, 862 F.3d 620, 624 (7th Cir. 2017), so we affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Brendan Dassey v. Michael A. Dittmann

Case No.: 16-3397

Officials: WOOD, Chief Judge, and EASTERBROOK, KANNE, ROVNER, WILLIAMS, SYKES, and HAMILTON, Circuit Judges.

Focus: Habeas Corpus Appeal – Lack of Precedent

Petitioner Brendan Dassey confessed on videotape to participating in the 2005 rape and murder of Teresa Halbach and the mutilation of her corpse. The Wisconsin state courts upheld Dassey’s convictions for these crimes, finding that his confession was voluntary and could be used against him. The principal issue in this habeas corpus appeal is whether that finding was based on an unreasonable application of Supreme Court precedent or an unreasonable view of the facts. See 28 U.S.C. § 2254(d).

Given the state courts’ reasonable findings of fact and the absence of clearly established Supreme Court precedent that compels relief for Dassey, the district court’s grant of habeas relief is REVERSED. The case is REMANDED to the district court with instructions to dismiss the petition.

Reversed and Remanded

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7th Circuit Court of Appeals

Case Name: Daniel Sullivan

Case No.: 15-2023

Officials: BAUER, EASTERBROOK, and SYKES, Circuit Judges.

Focus: Ineffective Assistance of Counsel

A jury found Daniel Sullivan and his brother John guilty of two counts of committing wire fraud in connection with a home-remodeling scheme they operated for several years. The district judge sentenced both brothers to 168 months’ imprisonment, and on direct appeal we affirmed their sentences. See United States v. Sullivan, 765 F.3d 712 (7th Cir. 2014). They then filed separate pro se collateral challenges under 28 U.S.C. § 2255, each contending that their attorneys were constitutionally ineffective. The district judge denied both § 2255 motions without holding an evidentiary hearing. The present appeal concerns the denial of Daniel’s motion.

We granted Daniel a certificate of appealability on his claims that his attorneys rendered constitutionally ineffective assistance by failing to (1) raise an objection under Batson v. Kentucky, 476 U.S. 79 (1986), to the exclusion of potential jurors based on race; and (2) hire an expert witness to testify about the amount of loss attributable to Daniel for purposes of the Guidelines. We affirm.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: R.L. v. Circuit Court for Outgamie County

Case No.: 2015AP2242

Officials: HRUZ, J.

Focus: Court Error – Contempt Sanction   

R.L. was summarily found in contempt of court and served fifteen minutes in jail. This occurred after R.L. made what the circuit court found were two disparaging remarks about the court during a hearing. R.L. appeals pro se, primarily arguing the court erred in imposing the contempt sanction. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Kentonyo Morgan

Case No.: 2016AP1118-CR

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

Focus: Court Error – Evidentiary Rulings

Kentonyo Morgan appeals from a judgment, entered upon a jury’s verdicts, convicting him of one count of first-degree reckless homicide while armed with a dangerous weapon and one count of possession of a firearm by a felon. Morgan additionally appeals from an order denying his postconviction motion for a new trial and from those parts of an order denying most of his reconsideration motion. Morgan contends the trial court made several erroneous evidentiary rulings during the trial. We reject Morgan’s arguments and affirm the judgment and orders.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Courtney J. James

Case No.: 2016AP1421

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

Focus: Ineffective Assistance of Counsel

Courtney J. James, pro se, appeals from the circuit court order denying his motion for postconviction relief under WIS. STAT. § 974.06 (2015-16). James argues that the attorneys who represented him at trial rendered ineffective assistance of counsel for a number of reasons, and that appellate counsel was ineffective in his direct appeal for failing to raise these claims. We affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Lonnie L. Sorenson

Case No.: 2016AP1540-CR

Officials: SEIDL, J.

Focus: Ineffective Assistance of Counsel and State Expert Witness Testimony

Lonnie Sorenson appeals a judgment of conviction entered upon a jury verdict for second-offense operating a motor vehicle with a prohibited alcohol concentration (PAC) and possession of drug paraphernalia. He also appeals an order denying his postconviction motion. Sorenson contends: (1) the circuit court erred in denying him a Machner hearing on his trial counsel’s alleged ineffective assistance; (2) the State failed to disclose before trial a State expert witness’s estimation of the time when Sorenson ingested tetrahydrocannabinols (THC); and (3) he was denied his constitutional right to confrontation when the State’s expert witness testified about the results of a blood-alcohol-concentration test that the expert did not perform. We reject Sorenson’s arguments and affirm.

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WI Court of Appeals – District III

Case Name: Larry George v. Doug Drankiewicz, et al.

Case No.: 2016AP1657

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

Focus: Motion for Reconsideration Denied

Larry George, pro se, appeals an order affirming, on certiorari review, the Wisconsin Parole Commission’s decision to deny George presumptive mandatory release. George also appeals the order denying his motion for reconsideration. George raises several challenges to the Commission’s decision. We reject George’s arguments and affirm the orders.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Craig Donald Spaude

Case No.: 2016AP2192-CR

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

Focus: Plea Withdrawal

Craig Spaude appeals a judgment convicting him of two counts of third-degree sexual assault and an order denying postconviction relief. Spaude argues he is entitled to plea withdrawal because his trial counsel was ineffective for failing to move to suppress his confession. He also argues the circuit court erroneously exercised its sentencing discretion. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Kenyatta Sobeasr Clincy

Case No.: 2016AP1317

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

Focus: Evidentiary Hearing Denied

Kenyatta Sobeasr Clincy, pro se, appeals from an order denying his petition for a writ of habeas corpus. Clincy argues that the circuit court erred in denying his petition without an evidentiary hearing and that under WIS. STAT. § 782.09 (2015-16) he is entitled to receive $1000 from each of the two circuit court judges who reviewed his petition. We disagree and affirm.

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WI Court of Appeals – District II

Case Name: Rodolfo Gomez, Jr. v. The Board and Fire Commissioners for the City of Milwaukee

Case No.: 2016AP2113

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

Focus: Lack of Jurisdiction

The Board of Fire and Police Commissioners for the City of Milwaukee (Board) appeals an order setting aside the Board’s decision to sustain the discharge of Milwaukee Police Detective Rodolfo Gomez, Jr. Because the Board failed to conduct a trial on Gomez’s appeal of his discharge within the time required by statute, the Board lost authority to exercise its jurisdiction, and thus, to hold the trial after which it sustained the discharge. We therefore affirm.

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WI Court of Appeals – District II

Case Name: Joseph A. Zanki v. Artisan and Truckers Casualty Company, et al.

Case No.: 2016AP2155

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

Focus: Court Error – Abuse of Discretion

Auto-Owners Insurance Company (Auto-Owners) appeals from a nonfinal order denying its motion to enforce a mediation settlement agreement. As the circuit court properly exercised its discretion in denying enforcement, we affirm.

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WI Court of Appeals – District IV

Case Name: Edward J. Mentell v. Erhard & Payette, et al.

Case No.: 2016AP1760

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

Focus: Legal Malpractice – Negligence

Edward Mentell appeals summary judgment dismissing his complaint for legal malpractice against Erhard & Payette, LLC and its malpractice insurer, Wisconsin Lawyers Mutual Insurance Company (collectively, Erhard & Payette). Erhard & Payette had represented Mentell in a negligence action against an appraiser hired to appraise a then-proposed condominium project for which Mentell was seeking financing. The circuit court granted summary judgment in favor of Erhard & Payette because Mentell failed to show that he suffered any damages from their representation of him. For the reasons discussed below, we affirm.

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WI Court of Appeals – District IV

Case Name: Margaret  Pulera v. Town Board of the Town of Johnstown, Rock County, Wisconsin

Case No.: 2016AP2074

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

Focus: Statutory Interpretation – WIS. STAT. ch. 82

Margaret Pulera appeals the circuit court’s grant of summary judgment in favor of the Town Board of the Town of Johnstown and its three members (collectively, the “Board”). For the reasons set forth below, we affirm the judgment of the circuit court.

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WI Court of Appeals – District IV

Case Name: Dane Radebaugh, et al. v. Roger Burrow

Case No.: 2016AP2357

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

Focus: Negligence – Governmental Immunity

Dane Radebaugh was injured when he was struck in the head by a line-drive foul ball while participating in a recreational league baseball game at Campus Field in Lake Mills. Radebaugh, by his Guardian ad Litem, and his parents Lisa Scott and James Radebaugh, sued the Lake Mills School District and the Lake Mills Recreational Department and their insurers, along with Radebaugh’s coach, Terry Yandre, two umpires refereeing the game, Travis Meyers and Roger Burrow, and their insurers, alleging negligence.

The School District, Yandre, Meyers, and Burrow moved for summary judgment, asserting in pertinent part that they are entitled to dismissal of Radebaugh’s claims based on governmental immunity under WIS. STAT. § 893.80(4) (2015-16); Yandre, Meyers, and Burrow also asserted that they are entitled to dismissal of Radebaugh’s claims based on contact sports immunity under WIS. STAT. § 895.525(4m).The circuit court granted the defendants’ motions, concluding in pertinent part that: (1) the known and compelling danger exception does not apply to abrogate the School District’s and Yandre’s immunity under the governmental immunity statute, WIS. STAT. § 893.80(4); and (2) the reckless conduct exception does not apply to abrogate Yandre’s, Burrow’s, and Meyers’ immunity under the contact sports immunity statute, WIS. STAT. § 895.525(4m).

Radebaugh appeals, arguing that the defendants are not entitled to summary judgment because the known and compelling danger exception abrogates the School District’s and Yandre’s governmental immunity, and a question of fact exists as to whether the reckless conduct exception abrogates Yandre’s, Burrow’s, and Meyers’ contact sports immunity. Viewing the evidence presented on summary judgment in Radebaugh’s favor, we conclude that the School District and the individual defendants are immune from liability and, therefore, we affirm.

Recommended for Publication

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WI Court of Appeals – District IV

Case Name: Gregory Pozarski v. Wisconsin Retirement Board and Department of Employee Trust Funds

Case No.: 2017AP398

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

Focus: Statutory Interpretation

The Wisconsin Retirement Board denied Gregory Pozarski’s application for duty disability benefits as a surviving spouse, and the circuit court affirmed the Board’s decision. On appeal, Pozarski argues that the Board erroneously interpreted WIS. ADMIN. CODE §§ ETF 52.07 and 52.08 (Dec. 2013)1 when it concluded that his late wife’s qualifying date for the purpose of receiving duty disability benefits was the day after her last day of work instead of the day of her death. The qualifying date matters because Pozarski is entitled to duty disability benefits as a surviving spouse only if he and his wife were married on the qualifying date, and it is undisputed that they were not yet married on the day after her last day of work. Under the circumstances here, review of an agency’s interpretation of its own rules, we give the Board’s interpretation controlling weight because the Board’s interpretation is reasonable. Thus, we affirm the Board’s interpretation and, therefore, affirm the circuit court.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Kinyater A. Grant

Case No.: 2017AP532-CR

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

Focus: Ineffective Assistance of Counsel

Kinyater Grant appeals a judgment convicting him of attempted first-degree intentional homicide and possessing a firearm as a felon. He also appeals an order denying his postconviction motion for a new trial. Grant contends that he was denied the effective assistance of counsel. For the reasons discussed below, we reject that contention and affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Bradly E. Ammann

Case No.: 2017AP866-CR

Officials: FITZPATRICK, J.

Focus: Court Error – Abuse of Discretion

Bradly Ammann appeals a judgment of conviction for operating a motor vehicle while intoxicated, fourth offense. Ammann argues that the arresting officer lacked reasonable suspicion to extend the traffic stop and perform field sobriety tests. Ammann also argues that the circuit court erroneously exercised its discretion when it used the incorrect legal standard in determining whether the arresting officer had sufficient evidence to request that Ammann take a preliminary breath test. I reject Ammann’s arguments and affirm.

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