Case Digests — April 14-18, 2014

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Wisconsin Law Journal Case Digests, April 14-18, 2014

Wisconsin Supreme Court

Civil
Insurance — truckers policies

Where a trailer-truck was involved in an accident while on the way to a maintenance facility for repairs, the non-trucking use policy provides coverage.

“We determine that neither of the exclusions in Acceptance’s policy precludes coverage. The facts of record do not support the application of exclusion 14(b). Zeverino was not using the semi-tractor ‘in the business of’ Taylor Truck Line because the repairs here did not further Taylor’s commercial interests. There is nothing in the record that shows the repairs were required by the lease. Additionally, the repairs were not done pursuant to orders from Taylor Truck Line, and they were not necessary for the semi-tractor to continue its service.”

“Further, Acceptance’s argument that coverage is excluded because Zeverino was en route to the business purpose of obtaining maintenance reflects an overly expansive interpretation of the text of exclusion 14(a). Like the court of appeals, we are concerned that its interpretation may render coverage illusory. Instead, in examining the text of exclusion 14(a) we determine that it refers to maintenance necessary to allow the semi-tractor to carry property. It is undisputed that the semi-tractor could and did carry loads without the repairs to the grille and oil filler tube.”

Affirmed.

2012AP667 Casey v. Smith

Bradley, J.

Attorneys: For Appellant: Noel, Charles J., Minneapolis; For Respondent: McNee, Michael W., Minneapolis; Novotny, Tamara Lynn, Minneapolis

Wisconsin Supreme Court

Criminal
Probation — discharge

The Department of Corrections retains jurisdiction over a probationer, despite the erroneous issuance of a discharge certificate.

“Both Wis. Stat. §973.09(5) and Wis. Admin. Code §DOC 328.17(2) ensure that the DOC carries out the sentence imposed by the circuit court. Allowing a clerical error by the DOC to preclude imposition of that sentence would be contrary to the purposes of these provisions and would undermine the finality of the court’s judgment. Indeed, even the circuit court itself has limited authority to modify a sentence and may do so only within ‘defined parameters,’ and ‘[a] court cannot base a sentence modification on reflection and second thoughts alone.’ State v. Ninham, 2011 WI 33, ¶88, 333 Wis.2d 335, 797 N.W.2d 451; State v. Harbor, 2011 WI 28, ¶35, 333 Wis.2d 53, 797 N.W.2d 828. Generally, a circuit court may modify a sentence only if it abused its discretion in imposing the sentence, or if a ‘new factor,’ unknown to the trial judge at the time of sentencing, has come to light. In any event, ‘adequate reasons’ for the modification must be made known on the record. State v. Wuensch, 69 Wis.2d 467, 480, 230 N.W.2d 665 (1975).”

Affirmed.

2011AP2188 State of Wisconsin ex rel. Greer v. Wiedenhoeft

Ziegler, J.

Attorneys: For Appellant: Kassel, Jeffrey J., Madison; Chiapete, W. Richard, Racine; For Respondent: Severino, Jennifer Marie, Racine

Wisconsin Court of Appeals

Civil
Property — foreclosure

Betty Jerusalem, pro se, appeals an order denying motions that attempt to reopen and vacate a judgment of foreclosure in favor of BAC Home Loans Servicing, LP. To the extent we can discern Jerusalem’s arguments, they are rejected and the order is affirmed. This opinion will not be published.

2013AP150 BAC Home Loans Services LP v. Jerusalem, et al.

Dist II, Outagamie County, Krueger, J., Per Curiam

Attorneys: For Appellant: Jerusalem, Betty, pro se; For Respondent: Leair, Rebecca E., Waukesha; Nabke, Scott D., Brookfield; Demakopoulos, Christina, Brookfield

Wisconsin Court of Appeals

Civil
Property — foreclosure

Belcorp Financial Services, Inc., appeals a summary judgment dismissing its mortgage foreclosure action against Ruth Wetzel and the Estate of Richard Wetzel, and awarding actual attorney fees and costs in favor of the Wetzels. Belcorp argues the circuit court erred by granting the Wetzels summary judgment because there is a genuine issue of material fact. Belcorp also challenges the award of attorney fees and costs. We reject Belcorp’s arguments and affirm the judgment. This opinion will not be published.

2013AP662 Belcorp Financial Services Inc. v. Estate of Richard B. Wetzel, et al.

Dist III, Vilas County, Nielsen, J., Per Curiam

Attorneys: For Appellant: Wagener, Nicholas Andrew, Appleton; For Respondent: Hogan, John J., Rhinelander

Wisconsin Court of Appeals

Civil
Tax — property tax — unproductive property

Where property is capable of productive use, it was not error for the municipality to not classify it as unproductive.

“West Capitol argues this interpretation of WIS. STAT. §70.32(2)(c)4 conflicts with WIS. STAT. §70.10, which states real property must be assessed ‘as of the close of January 1 of each year.’ West Capitol asserts that, under §70.10, property must be classified based on its actual use on January 1 of the assessment year, rather than its potential future use. However, nothing in §70.10 requires a property to be classified based on its actual use. As discussed above, the term nonproductive can reasonably be read to mean neither producing nor capable of productive use, and the doctrine of ejusdem generis supports that interpretation. The relevant inquiry is therefore whether West Capitol’s property was incapable of productive use as of January 1, 2009. This analysis does not conflict with the statutory requirement that property be assessed ‘as of the close of January 1 of each year.’ See WIS. STAT. §70.10.”

Affirmed in part, and Reversed in part.

Recommended for publication in the official reports.

2013AP1458 West Capitol Inc. v. Village of Sister Bay

Attorneys: For Appellant: Lund, Michael J., Milwaukee; Thom, Terrence C., Milwaukee; For Respondent: Madison, Bree A., Appleton

Wisconsin Court of Appeals

Civil
Employment — unemployment insurance

Where two jail guards were suspended for good cause, they are not entitled to unemployment insurance benefits.

“A common sense reading of the statute dictates that Carrington-Field and Webster were indeed suspended for good cause based on conduct connected with their work. Carrington-Field failed to perform an inmate check — clearly an essential function of a corrections officer. The failure led to the delayed discovery of an inmate death, which might have been prevented had the check occurred in a timely manner. Webster’s timely arrival at her place of employment is clearly an important requirement for a corrections officer who must relieve other officers at the conclusion of their shifts. Although two tardy appearances may not ultimately be held by the PRB to justify termination (the record does not disclose the amount of tardiness or its cause), timely reporting for duty is nonetheless conduct connected with Webster’s work. Based on the facts in this record, LIRC’s conclusion that these employees’ suspensions did not result from good cause connected with their work is based on an erroneous statutory interpretation.”

Reversed and Remanded.

Recommended for publication in the official reports.

2013AP1613 Milwaukee County v. LIRC

Dist. I, Milwaukee County, Pocan, J., Kessler, J.

Attorneys: For Appellant: Carroll, James Matthew, Milwaukee; For Respondent: Shampo, Jeffrey J., Madison; Cooper, Jefferson, Brookfield

Wisconsin Court of Appeals

Civil
Debtor-Creditor — credit card debt — prima facie case

Korry L. Ardell appeals from a judgment entered against him for unpaid credit card debt. We affirm. This opinion will not be published.

2013AP2734 First National Bank of Omaha v. Ardell

Dist II, Sheboygan County, Van Akkeren, J., Neubauer, P.J.

Attorneys: For Appellant: Ardell, Korry L., pro se; For Respondent: Ambrosh, David A., Milwaukee

Wisconsin Court of Appeals

Civil
Civil Rights — free speech — qualified immunity

In this civil rights action, the plaintiffs allege that state officials violated their rights under the First and Fourteenth Amendments by issuing citations to the plaintiffs and confiscating signs they were holding in a public area of the Wisconsin State Capitol building. The circuit court dismissed the action on summary judgment, and the plaintiffs now appeal. Not recommended for publication in the official reports.

2013AP895 Ryan et al. v. Huebsch et al

Dist IV, Dane County, Remington, J., Blanchard, P.J.

Attorneys: For Appellant: Olson, Jeff Scott, Madison; For Respondent: Lazar, Maria S., Madison

Wisconsin Court of Appeals

Civil
Municipalities — annexation

Michael H. Ries, M.D., and Ries Partners, Limited Partnership (Ries) challenge an annexation by referendum of the former Town of Bristol into the Village of Bristol. The Village petitioned the circuit court for an annexation referendum on whether to annex the Town to the Village. Prior to this petition, the Town unsuccessfully petitioned to incorporate a majority of the Town as the Village and then successfully petitioned to incorporate a smaller portion of the Town as the Village. The circuit court granted the Village’s petition for an annexation referendum, and the referendum passed. The Village enacted an ordinance annexing the Town to the Village.

Ries subsequently filed a complaint seeking a declaration that the annexation by referendum was invalid because it violated the rule of reason, a judicially created doctrine used to determine whether an annexation is valid. The parties filed cross motions for summary judgment, which the circuit court denied. A trial was held to the court, after which the court determined that the annexation satisfied the rule of reason and dismissed the complaint.

On appeal, Ries renews his argument that the annexation did not satisfy the rule of reason for the same reasons as argued in the circuit court. Ries also argues that the circuit court erroneously excluded testimony regarding what, if anything, Village board members discussed in deciding to initiate the annexation process. For the reasons that follow, we conclude that the annexation satisfies the rule of reason and that the court’s evidentiary ruling was not an erroneous exercise of discretion. Accordingly, we affirm. Not recommended for publication in the official reports.

2012AP1942 Ries et al. v. Village of Bristol

Dist II, Kenosha County, Schroeder, J., Higginbotham, J.

Attorneys: For Appellant: Neumeier, J. Paul, Jr., Milwaukee; For Respondent: Sager, Susan M., Milwaukee

Wisconsin Court of Appeals

Civil
Trusts and Estates — life insurance

These consolidated appeals arise from a dispute as to the proceeds of a life insurance policy held by decedent Mary Brandt. Mary’s sons, David and Adam Brandt, appeal an order for payment of the proceeds to Mary’s sister, Rita Vasquez. Paul Brandt, who is Mary’s ex-husband and David and Adam’s father, appeals an order dismissing Paul’s subsequent action asserting Paul’s right to the life insurance proceeds. The Brandts argue that Mary was required to name either Paul or David and Adam as beneficiaries of the life insurance policy under Paul and Mary’s divorce judgment. We disagree, and affirm. This opinion will not be published.

2012AP1910, 2013AP649 Brandt v. Vasquez

Dist IV, Portage County, Flugaur, J., Per Curiam

Attorneys: For Appellant: O’Brien, Gerald M., Stevens Point; Jacobson, Brent William, Stevens Point; For Respondent: Ray, David A., Stevens Point

Wisconsin Court of Appeals

Civil
Property — landlord-tenant — retaliatory termination

In this small claims landlord-tenant dispute the only issue I address is whether there was a basis for the circuit court to award damages allegedly caused by the landlord’s retaliatory termination of an oral month-to-month lease to rent a house. I conclude that there was not, and therefore all of the other issues fall away. Accordingly, I reverse. This opinion will not be published.

2013AP2180 Corona Properties LLC v. Manyen

Dist IV, Dane County, Gaylord, J., Blanchard, P.J.

Attorneys: For Appellant: Axe, Kenneth B., Madison; Kopp, Josh, Madison; For Respondent: Monroe, Linda K., Madison

Wisconsin Court of Appeals

Civil
Civil Procedure — hospital liens

Under the hospital lien statute, sec. 779.80, an attorney or law firm who receives and then distributes a settlement payment on a personal injury claim is not, under the lien statute’s language, a “person making any payment to [the] injured person … as compensation for the injuries sustained.”

“Notice provisions in the statute support our interpretation of the statute as applied to both General Casualty and Hupy. Specifically, the statute requires that ‘the hospital’ provide notice of the lien to the ‘injured person,’ and to ‘the person alleged to be liable’ and that person’s ‘insurer’ if their names and addresses may be ascertainable by reasonable diligence. WIS. STAT. §779.80(3)(b) and (c). In contrast, there is no notice requirement for an injured person’s attorney. Here, it appears undisputed that the Medical Center was required to, and did, provide notice of the lien by mail to McGuire and to General Casualty, but not to Hupy.”

Reversed; Affirmed.

Recommended for publication in the official reports.

2013AP2324 & 2013AP2511 Watertown Regional Medical Center Inc. v. General Casualty Ins. Co.

Dist. IV, Jefferson County, Wambach, J., Lundsten, J.

Attorneys: For Appellant: Derry, Brandon D., Madison; Pirt Meyer, Amanda Andrea, Madison; For Respondent: King, Peter B., Fontana; Pliner, David J., Madison

Wisconsin Court of Appeals

Criminal
Motor Vehicles – OWI — warrantless blood draws

Neil Morton appeals a judgment of conviction for operating a motor vehicle while intoxicated (OWI), third offense. Morton contends the circuit court erred in failing to suppress the results of his blood test because the results were obtained without a warrant and in the absence of exigent circumstances. I conclude that this court’s recent opinion in State v. Reese, 2014 WI App 27, ___ Wis. 2d ___, ___ N.W.2d ___, is controlling and that because the arresting officer was acting in good faith reliance on established Wisconsin Supreme Court precedent at the time the blood draw was obtained, the circuit court did not err in denying Morton’s motion to suppress. Accordingly, I affirm. This opinion will not be published.

2013AP2366-CR State v. Morton

Dist IV, Dane County, Genovese, J., Sherman, J.

Attorneys: For Appellant: Stangl, Patrick J., Madison; For Respondent: Weber, Gregory M., Madison; Viste, Michelle L., Madison

Wisconsin Court of Appeals

Criminal
Sentencing – modification — new factors

This appeal concerns the amount of restitution ordered as part of Paul Williquette’s sentence following his conviction for criminal damage to property arising from damage that Williquette intentionally caused to another person’s vehicle. Williquette appeals a circuit court order denying Williquette’s motion for postconviction relief seeking modification of the restitution order. Williquette argues that evidence of the actual amounts that the victim paid to repair and for the related clean up of his vehicle, which Williquette learned about only after the plea and sentencing hearing, constitutes a new factor that justifies modification of the restitution order. I agree with the circuit court that the actual amount that the victim paid to repair and clean up the damaged vehicle is not a new factor that justifies modification of Williquette’s sentence. Accordingly, I affirm. This opinion will not be published.

2013AP2127-CR State v. Williquette

Dist IV, Wood County, Wolf, J., Blanchard, P.J.

Attorneys: For Appellant: Rosenberg, Michael D., Madison; For Respondent: Weber, Gregory M., Madison; Constable, Eliz. R., Wisconsin Rapids

Wisconsin Court of Appeals

Criminal
Evidence — other acts — consciousness of guilt

Daniel K. Rogers was charged with second-degree sexual assault by use of force, domestic abuse, as a repeater. During the jury trial, the victim testified that several months after the incident for which Rogers was charged, Rogers choked the victim because she decided not to lie about the sexual assault after Rogers asked her to do so. Rogers was found guilty and appeals the judgment of conviction. The issue on appeal is whether the court properly admitted the choking evidence. We affirm. Not recommended for publication in the official reports.

2012AP186-CR State v. Rogers

Dist IV, Wood County, Wolf, J., Higginbotham, J.

Attorneys: For Appellant: FitzGerald, Patricia A., Mt. Horeb; For Respondent: Moeller, Marguerite M., Madison; Lambert, Craig S., Wisconsin Rapids

Wisconsin Court of Appeals

Criminal
Criminal Procedure — due process — notice

Even though the complaint alleged incidents occurring 12 and 15 years earlier, without specific dates, the complaint provided sufficient notice to the defendant.

“In considering these two factors, we cannot ignore our supreme court’s fairly recent decision in State v. McGuire, 2010 WI 91, 328 Wis. 2d 289, 786 N.W.2d 227. The defendant in McGuire was charged with five counts of indecent behavior with a child occurring between 1966 and 1968. Id., ¶1. The issue before the court which is relevant to this case was whether the defendant’s due process rights were violated because approximately thirty-six years had passed between the offenses and the charges. Id., ¶28. The defendant argued that his defense had been prejudiced because key witnesses had died and evidence had been destroyed. Id., ¶44. The court first observed that ‘[t]he statute of limitations is the principal device … to protect against prejudice arising from a lapse of time between the date of an alleged offense and an arrest.’ Id., ¶45 (citations omitted). The court then held that a defendant claiming his due process rights have been violated by delay ‘must show “(1) actual prejudice as a result of [the] delay; and (2) [that] the delay arose out of an improper purpose, [such as to] give the State a tactical advantage over the defendant.”’ Id. (citation omitted).”

Reversed and Remanded.

Recommended for publication in the official reports.

2013AP1531-CR State v. Kempainen

Dist. II, Sheboygan County, Bourke, J., Gundrum, J.

Attorneys: For Appellant: Moeller, Marguerite M., Madison; For Respondent: Bastil, Samantha R., Sheboygan; For Respondent: Hoff, Casey J., Sheboygan; Mroczkowski, Melissa Louise, Sheboygan

Wisconsin Court of Appeals

Criminal
Criminal Procedure — plea withdrawal

In these consolidated appeals, Timothy M. Burns appeals from judgments convicting him of first-degree sexual assault of a child under 12 and of threat to a judge and from an order denying his motion for postconviction relief. Burns argues that the circuit court erred in not allowing him to withdraw his no-contest pleas before sentencing. We affirm. This opinion will not be published.

2013AP1560-CR, 2013AP1561-CR State v. Burns

Dist II, Kenosha County, Wagner, J., Per Curiam

Attorneys: For Appellant: Roemaat, Sara Heinemann, Waukesha; For Respondent: Zapf, Robert D., Kenosha; Wittwer, Jacob J., Madison

Wisconsin Court of Appeals

Criminal
Criminal Procedure — double jeopardy

This is a petition for leave to appeal. Reginald R.D. Bickham appeals from an order of the circuit court denying his motion to dismiss the case against him on double jeopardy grounds. Because we agree with the circuit court that prosecution of Bickham does not violate the constitutional protection against double jeopardy, we affirm the order and remand the case for further proceedings. This opinion will not be published.

2013AP1848-CR State v. Bickham

Dist I, Milwaukee County, Guolee, J., Per Curiam

Attorneys: For Appellant: Rebholz, James A., Milwaukee; For Respondent: Kassel, Jeffrey J., Madison; Loebel, Karen A., Milwaukee; Weber, Gregory M., Madison; Huebner, Grant, Milwaukee

Wisconsin Court of Appeals

Criminal
Criminal Procedure — self-representation — plea withdrawal

Jeremiah Twocrow appeals a judgment of conviction for two counts of felon in possession of a firearm and one count of possession of a short-barreled shotgun. He also appeals an order denying his motion for post-conviction relief. Twocrow argues the circuit court erroneously denied him his right to self-representation and erred by failing to grant his pre- and post-sentencing motions for plea withdrawal. We reject Twocrow’s arguments and affirm. This opinion will not be published.

2013AP1534-CR State v. Twocrow

Dist III, Brown County, Hammer, J., Per Curiam

Attorneys: For Appellant: Yanke, Bradley, Menasha; Jordan, Sara E., Menasha; For Respondent: Weinstein, Warren D., Madison; Lasee, David L., Green Bay

Wisconsin Court of Appeals

Criminal
Criminal Procedure — breach of plea agreement

Patrick Gerard Lynch appeals a judgment convicting him of one count of armed robbery with threat of force as party to a crime and one count of attempted armed robbery with threat of force as party to a crime. He also appeals an order denying his postconviction motion for resentencing in which he alleged the State violated the plea agreement by advising the circuit court that Lynch was not “similarly situated” to his co-defendant. We affirm the judgment and order. This opinion will not be published.

2013AP1436-CR State v. Lynch

Dist I, Milwaukee County, DiMotto, Kremers, J., Per Curiam

Attorneys: For Appellant: Tauscheck, George, Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Johnson-Karp, Gabe, Madison

Wisconsin Court of Appeals

Criminal
Sentencing — adjustment

David Huusko, pro se, appeals an order denying his Wis. Stat. § 973.195 petition for sentence adjustment. Huusko contends the circuit court relied on inaccurate information when denying the petition. We reject Huusko’s argument and affirm the order. This opinion will not be published.

2013AP1139-CR State v. Huusko

Dist III, Eau Claire County, Theisen, J., Per Curiam

Attorneys: For Appellant: Huusko, David G., pro se; For Respondent: King, Gary M., Eau Claire; Wittwer, Jacob J., Madison

Wisconsin Court of Appeals

Criminal
Search and Seizure — warrantless probation searches

Kevin Shaw appeals a judgment of conviction for possession of tetrahydrocannabinol with intent to deliver, dealer possession of a controlled substance without a tax stamp, and possession of drug paraphernalia. He claims his residence was subjected to an unreasonable probation search, and he challenges the sufficiency of the evidence supporting his convictions. We affirm. This opinion will not be published.

2013AP1040-CR State v. Shaw

Dist III, Lincoln County, Tlusty, J., Per Curiam

Attorneys: For Appellant: Waterman, R. Michael, Hudson; For Respondent: Dunphy, Donald J., Merrill; Weinstein, Warren D., Madison

Wisconsin Court of Appeals

Criminal
Evidence — prior violent acts — other acts

Brian J. Anderson appeals the judgment convicting him of first-degree intentional homicide with the use of a dangerous weapon. He also appeals from the order denying his postconviction motion. On appeal, Anderson — who shot and killed one of his roommates, believed to be covering for another friend who was having an affair with Anderson’s fiancée — argues that the trial court erroneously exercised its discretion by: (1) denying the admission of most of the evidence he moved to admit under McMorris v. State, 58 Wis. 2d 144, 205 N.W.2d 559 (1973); and (2) admitting other acts evidence concerning an incident three weeks prior to the shooting where Anderson pistol-whipped a couple of men who made sexual comments about his fiancée. We disagree and affirm. Not recommended for publication in the official reports.

2013AP913-CR State v. Anderson

Dist I, Milwaukee County, Brostrom, J., Curley, P.J.

Attorneys: For Appellant: Hart, Richard H., Milwaukee; For Respondent: Kassel, Jeffrey J., Madison; Loebel, Karen A., Milwaukee

Wisconsin Court of Appeals

Criminal
Sentencing — accurate information — DNA surcharge

Michael L. Moore appeals from a judgment of conviction for one count of possession of a firearm by a felon as a repeater. He also appeals from an order that denied his motion for sentence modification and resentencing. Moore argues that the circuit court sentenced him based on erroneous information about a prior juvenile adjudication and that the circuit court erroneously exercised its discretion when it imposed a fine and required him to pay the DNA surcharge if he had not previously paid it. We affirm. This opinion will not be published.

2013AP445-CR State v. Moore

Dist I, Milwaukee County, Martens, J., Per Curiam

Attorneys: For Appellant: Thornton, J. Dennis, Milwaukee; For Respondent: Kassel, Jeffrey J., Madison; Loebel, Karen A., Milwaukee

Wisconsin Court of Appeals

Criminal
Criminal Procedure — ineffective assistance

Jimmy Ramirez appeals a judgment of conviction for two counts of first-degree sexual assault. He asserts a video recording of the child victim’s statements to police was improperly admitted at trial because it did not comply with Wis. Stat. § 908.08(3). He also claims his attorney was ineffective for failing to object to the testimony of a DNA analyst from the state crime lab. We reject Ramirez’s arguments and affirm. This opinion will not be published.

2012AP2247-CR State v. Ramirez

Dist III, Oneida County, O’Melia, J., Per Curiam

Attorneys: For Appellant: Sczygelski, Ralph, Manitowoc; For Respondent: Michlig, Steven M., Rhinelander; Remington, Christine A., Madison

U.S. Court of Appeals for the Seventh Circuit

Civil
Employment – discrimination — retaliation

Where there are genuine issues of material fact surrounding an employee’s time records and the employer’s attendance policy, the district court erred in concluding in a retaliation action that the reason for the employee’s discharge is beyond dispute.

“Even if we assume that Gosey was late on July 5, Aurora’s own evidence confirms that Gosey was early on July 20 and August 17 and that on October 11 she arrived within the grace period that a former management employee said that the company recognized. On that assumption, a jury could conclude that Gosey was on time three of the four days that Aurora cited as its only basis for ending her employment. On every day that the company says that Gosey was tardy — including July 25, July 27, and October 15 — the Punch Detail History shows that she was on the job within the grace period. We cannot, on review of a ruling on summary judgment, assume unfavorably to Gosey that Franckowiak was incorrect about the existence of an informal grace period. As the record stands, Franckowiak’s testimony is undisputed by the company, and even if there had been a dispute, the resolution of the disagreement would be for the trier of fact. We must also resolve in Gosey’s favor, for present purposes, the dispute over the source of the dual arrival times in the Punch Detail History. Gosey says that she did not make the second, later entry; Aurora made no effort to establish that she did, which raises the inference that the company manipulated the entries.”

Affirmed in part, and Vacated in part.

13-3375 Gosey v. Aurora Medical Center

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

U.S. Court of Appeals For the Seventh Circuit

Civil
Constitutional Law — First Amendment

Act 10 does not violate the First Amendment rights of government employees.

“Government line-drawing that does not infringe a fundamental right and is not based on a suspect classification is subject only to rational-basis review. FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993). However, the unions contend that Act 10’s line-drawing infringes fundamental First Amendment rights. They argue that under Act 10, local governments cannot make binding agreements with a general employee’s bargaining representative regarding most employment terms and conditions — but that local governments are not similarly limited when it comes to their making such agreements with individual employees. This differential treatment of represented employees and individual employees, they argue, amounts to the state punishing the former for exercising their petition and association rights. Accordingly, the unions maintain, strict scrutiny applies, and Wisconsin must put forth a compelling interest for its law and show that it is narrowly tailored to that interest.”

“We must again reject the union’s characterization of the law. Wisconsin is not treating employees differently based on the employees’ exercise of their associational rights. At the risk of repeating ourselves, we stress that Act 10 does not mandate any form of unfavorable treatment for union members. These employees still possess every right, and are given every opportunity, that the state grants to their colleagues who elect not to join a union. It’s just that Wisconsin has refused to participate in an activity that the represented employees want the state to engage in. Wisconsin has chosen to recognize individual employees as appropriate bargaining partners for municipal employers, but not union representatives. That is Wisconsin’s choice to make. The association right does not compel public employers to sit down at the table with whomever an employee may wish to represent them.”

Affirmed.

13-3193 Laborers Local 236 v. Walker

Appeal from the United States District Court for the Western District of Wisconsin, Conley, J., Flaum, J.

U.S. Court of Appeals For the Seventh Circuit

Civil
Immigration — removal

Where an alien’s true identity is unknown, his petition for review of a removal order must be denied.

“Our inability to ascertain Singh’s identity dooms his petition for review of an order finding him removable from the United States. Singh claims that the Board of Immigration Appeals erred in concluding that he received constitutionally adequate notice of his immigration proceedings during his detention by Immigration and Naturalization Services officers in 1997.1 He also argues that the Board erred in finding that he could not establish inspection and admission into the United States. See 8 U.S.C. § 1255(a). Singh’s due process claims hinge on establishing that he really is Tarsem Singh and was just fifteen years old when he was detained by the INS in 1997, which he is unable to do. Singh also cannot establish by clear and convincing evidence that he was inspected and admitted into the United States when he entered this country. We therefore deny his petition for review.”

Petition Denied.

13-2552 Singh v. Holder

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

U.S. Court of Appeals for the Seventh Circuit

Civil
Intellectual Property – copyright — dance

A dance routine performed in a banana costume at a trade show is not copyrightable.

“The performance itself was not copyrighted or even copyrightable, not being ‘fixed in any tangible medium of expression.’ 17 U.S.C. § 102(a); see, e.g., Kelley v. Chicago Park District, 635 F.3d 290, 303–04 (7th Cir. 2011); Baltimore Orioles, Inc. v. Major League Baseball Players Ass’n, 805 F.2d 663, 675 (7th Cir. 1986); United States v. Moghadam, 175 F.3d 1269, 1280–81 (11th Cir. 1999); 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 2.03[B], p. 2?32 (Aug. 2004). To comply with the requirement of fixity she would have had either to have recorded the performance or to have created a written ‘dance notation’ of it. See Martha Graham School & Dance Foundation, Inc. v. Martha Graham Center of Contemporary Dance, Inc., 380 F.3d 624, 632 and n. 13 (2d Cir. 2004); Horgan v. Macmillan, Inc., 789 F.2d 157, 160 and n. 3 (2d Cir. 1986); ‘Dance Notation,’ Wikipedia, http://en.wikipedia.org/wiki/Dance_notation. She did neither.”

Affirmed.

13-2899 Conrad v. AM Community Credit Union

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

U.S. Court of Appeals For the Seventh Circuit

Criminal
Criminal Procedure — immunity

Even though a defendant was given immunity by a state for information he provided, the federal government is not precluded from using the statements to prosecute the defendant.

“The plain language here reveals that the feds never immunized statements Bryant would make in cooperation with other authorities. Consider that for Bryant’s contract-based argument, he relies on the United States’ promise that, with some inapplicable exceptions, ‘no statement made or information provided pursuant to th[e federal immunity] agreement may be directly introduced as evidence against [him] in any criminal case.’ But because that agreement was for Bryant ‘to cooperate with the United States … in its efforts to enforce federal law,’ the statements he gave Illinois authorities in ostensible support of their efforts to enforce state law were not provided “pursuant to” the federal agreement. This reading is appropriately literal. Allowing Bryant to lever the federal cooperation agreement to bar the government’s use of his statements to Illinois would grant him the benefit of a bargain he never had. Cf. United States v. Eliason, 3 F.3d 1149, 1153 (7th Cir. 1993) (‘If Eliason wanted to limit the use the federal government could make of the information he provided to Florida prosecutors, he and his counsel were obliged to follow the accepted procedures and at least make an attempt to obtain such an agreement or promise from the federal government.’).”

Affirmed.

13-1578 U.S. v. Bryant

Appeal from the United States District Court for the Central District of Illinois, McCuskey, J., Van Bokkelen, J.

U.S. Court of Appeals For the Seventh Circuit

Criminal
Criminal Procedure — collateral attacks

In a prosecution for illegal reentry after removal, the district court correctly denied a motion to dismiss based on a collateral attack of the removal order that could have been raised earlier, but was not.

“The district court correctly determined that Alegria-Saldana did not meet his burden of proving that he was unable to petition for judicial relief. See Arita-Campos, 607 F.3d at 493; United States v. Santiago-Ochoa, 447 F.3d 1015, 1019 (7th Cir. 2006). The court here concluded that he failed to meet this burden because he offered no explanation other than that he lacked ‘any understanding or particular knowledge of the law.’ As the court noted, aliens are presumed capable of researching generally available remedies, see Bayo v. Napolitano, 593 F.3d 495, 505 (7th Cir. 2010); Dimenski v. INS, 275 F.3d 574, 578 (7th Cir. 2001) (‘In immigration law, as in tax law — and criminal law, too, where knowledge of the law is presumed — the Constitution permits the government to leave people to their own research.’) (internal citation omitted), and Alegria-Saldana offers no other reason to think that two months was not enough time to file a petition for habeas corpus, see Arita-Campos, 607 F.3d at 492 (39 days between arrest and removal was sufficient time for alien to file motion to reopen).”

Affirmed.

13-1607 U.S. v. Alegria-Saldana

Appeal from the United States District Court for the Northern District of Illinois, Kapala, J., Rovner, J.

U.S. Court of Appeals for the Seventh Circuit

Criminal
Wire Fraud — jury instructions

In a prosecution for wire fraud, it was not error for the district court to refuse to give an instruction to the jury that it must unanimously agree on which representation was false.

“Here, the three elements of wire fraud are clearly articulated in the criminal statute itself: (1) an intent to defraud, (2) participation in a scheme to defraud, and (3) the use of interstate wires in furtherance of the scheme to defraud. Sheneman, 682 F.3d at 628. We agree with the reasoning of these circuits and find that the fraudulent representations or omissions committed by Daniel were ‘underlying brute facts’ of the verdict against him: that is, they were merely the means he used to commit an element of the crime. We conclude that the instructions used in this case accurately conveyed the law and were all that was necessary. Thus, the district court did not abuse its discretion when it declined to give the additional specific unanimity instruction Daniel requested.”

Affirmed.

13-2399 U.S. v. Daniel

Appeal from the United States District Court for the Northern District of Illinois, Gottschall, J., Bauer, J.

U.S. Court of Appeals for the Seventh Circuit

Criminal
Search and Seizure — protective sweeps

Where the protective sweep by a SWAT team was reasonable, the district court properly denied the defendant’s motion to suppress evidence seized during the sweep.

“[T]he duration and scope of the protective sweep in this case were reasonable. The SWAT team entered the house within ten minutes of detaining Henderson. Unable to operate the front door lock with the keys found on Henderson, the SWAT team forced their way into the house through the back door. Once inside, they secured the premises to ensure nobody remained in the house, victim or assailant. The sweep was cursory and lasted no longer than five minutes. SWAT officer Graber testified that the sweep was “probably five—no more than five minutes” and “nothing was touched or moved.” Other than the SWAT team, the South Bend Police Department remained outside until the court issued the search warrant and a full search was feasible. The district court did not err in denying Henderson’s motion to suppress.”

Affirmed.

13-2843 U.S. v. Henderson

Appeal from the United States District Court for the Northern District of Indiana, Miller, J., Bauer, J.