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Weekly Case Digests — Case Digests, May 5-9, 2014

By: WISCONSIN LAW JOURNAL STAFF//May 9, 2014//

Weekly Case Digests — Case Digests, May 5-9, 2014

By: WISCONSIN LAW JOURNAL STAFF//May 9, 2014//

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Wisconsin Law Journal Case Digests, May 5-9, 2014

Wisconsin Supreme Court

Civil
Professional Responsibility — conditional admission

Where B.R.C. has fulfilled the character requirements, his license to practice law is reinstated, subject to continued monitoring.

“We agree that B.R.C. must complete the full two years of monitoring as his conditional admission originally required, with a monitor located in the Milwaukee area, if possible. At this time, there is insufficient cause to warrant extending the conditions imposed on B.R.C. past July 2, 2014. See SCR40.075(6). If B.R.C. fails to comply with the terms of his monitoring contract before it terminates, the parties shall immediately advise the court and we reserve the right to reconsider this decision. However, we accept the referee’s conclusion that B.R.C. has demonstrated character and fitness sufficient to warrant his admission to the bar subject to successful completion of the monitoring contract. Upon completion of the monitoring contract he will be deemed admitted, without conditions.”

2012XX605-BA BBE v. BRC

Per Curiam.

Attorneys: For Complainant: Rothstein, Jacquelynn, Madison; For Respondent: Scherr, Werner Erich, Milwaukee

Wisconsin Court of Appeals

Civil
Municipalities — building code violations — summary judgment

Glen Cunningham, pro se, appeals a summary judgment entered in favor of the City of Superior. He also appeals an order denying his motion for reconsideration. Cunningham argues the City is not entitled to summary judgment and the circuit court failed to properly apply the summary judgment methodology. He also objects to the forfeiture amount. We affirm. This opinion will not be published.

2013AP2626 City of Superior v. Cunningham

Dist III, Douglas County, Thimm, J., Hoover, P.J.

Attorneys: For Appellant: Cunningham, Glen, pro se; For Respondent: Prell, Harley LeRoy, III, Superior

Wisconsin Court of Appeals

Civil
Corporations – redemption — valuation

James Swiderski appeals an order compelling him to accept Swiderski Equipment Inc.’s tender to redeem his shares of the corporation at a certain price. James argues the circuit court misinterpreted the share-valuation provisions of the parties’ corporate redemption agreement. We agree, and reverse. This opinion will not be published.

2013AP1545 Swiderski Equipment Inc. et al. v. Swiderski et al.

Dist III, Outagamie County, McGinnis, J., Per Curiam

Attorneys: For Appellant: Anderson, Steven M., Eau Claire; Mirr, Paul, Eau Claire; For Respondent: Golla, Russell T., Stevens Point; Rogers, James T., Wausau; Shields, Margaret G., Wausau

Wisconsin Court of Appeals

Civil
Civil Rights – dismissal — failure to state a claim

Jesse Hardy Swinson, pro se, appeals the dismissal of his civil rights and RICO action. We affirm. This opinion will not be published.

2012AP2809 Swinson v. Snider et al.

Dist III, Chippewa County, Cameron, J., Per Curiam

Attorneys: For Appellant: Swinson, Jesse Hardy, pro se; For Respondent: Potts, Abigail, Madison; Potter, Kevin C., Madison; Weber, Gregory M., Madison

Wisconsin Court of Appeals

Civil
Open Records — balancing test

An open records request was properly denied where the requestor had a history of violence against the employee who was the subject of the request.

“An in camera review of requested documents is not mandatory. Village of Butler v. Cohen, 163 Wis. 2d 819, 827, 472 N.W.2d 579 (Ct. App. 1991). We have held ‘that if the policy reasons the custodian lists for nondisclosure are of sufficient specificity, and if those reasons override the presumption in favor of disclosure, an in camera inspection is unnecessary.’ Id. Here, the MBSD stated with specificity that its reasons for rejecting Ardell’s request were the domestic abuse injunction and the resulting criminal case. The circuit court denied Ardell’s request for an in camera review of the documents, noting that ‘the facts are undisputed that he’s a predator and she’s the victim. And that he went to jail [for] it. After being warned, and he’s incarcerated, and he’s back out and he’s being a predator again.’ We agree with the MBSD and the circuit court that Ardell’s history of violence against the employee and violations of the domestic abuse injunction are sufficient to warrant nondisclosure without an in camera review. We need not speculate as to how Ardell would use the information to harm the employee. His violent history plainly demonstrates an intent to harm that is inconsistent with the purpose of open records law.”

Affirmed.

Recommended for publication in the official reports.

2013AP1650 State of Wisconsin ex rel. Ardell v. Milwaukee Board of School Directors

Dist. I, Milwaukee County, Amato, J., Brennan, J.

Attorneys: For Appellant: Mason, Rebecca Kathryn, Racine; For Respondent: Rutledge, Melanie J., Milwaukee

Wisconsin Court of Appeals

Civil
Trusts – fraud — statute of limitations

In this interlocutory appeal, Gordon Mueller appeals an order of the circuit court denying his motion for summary judgment on two claims brought against him by the beneficiaries of six trusts for which he previously served as trustee. The beneficiaries of the trusts brought suit against Mueller for breach of fiduciary duties and for intentional fraud. Mueller contends that summary judgment should have been entered in his favor because the claims against him are time barred. Mueller also contends that summary judgment should have been entered in his favor with respect to the beneficiaries’ intentional fraud claim because that claim was not pled with sufficient specificity and because it is not a valid claim. However, we do not reach this issue because we resolve the statute of limitations issue in favor of Mueller. Accordingly, we reverse the order denying Mueller’s motion for summary judgment and remand with directions. Not recommended for publication in the official reports.

2013AP518 Beck et al. v. Mueller

Dist IV, Waushara County, Slate, J., Sherman, J.

Attorneys: For Appellant: Lawrynk, Michael D., Appleton; For Respondent: Kyle, Thomas William, Watertown; Wieckowicz, Amanda L., Chetek; Kipp, Julie R., Watertown

Wisconsin Court of Appeals

Civil
Contracts — damages

VistaMotif LLC appeals a small claims judgment awarding Dr. Mary Ozers damages in the amount of $6,751.05. Ozers, a former employee of VistaMotif, brought suit against VistaMotif to seek reimbursement for personal funds she expended on behalf of VistaMotif during her employment with VistaMotif. The circuit court found that Ozers was entitled to reimbursement for the funds she sought reimbursement for, but offset that amount by a portion of a payment Ozers received from VistaMotif during her employment, the authorization of which was in dispute. VistaMotif challenges the circuit court’s calculation of the offset amount. For the reasons discussed below, I affirm. This opinion will not be published.

2013AP2153 Ozers v. VistaMotif LLC

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

Attorneys: For Appellant: Haus, William, Madison; For Respondent: Olson, Jeff Scott, Madison

Wisconsin Court of Appeals

Civil
Family — contempt

Lena Archer appeals an order that denied her motion to hold her ex-husband, Corey Saffold, in contempt for failing to pay his designated share of child care expenses. The circuit court denied the contempt motion on the grounds that Archer was misinterpreting Saffold’s obligations under the divorce judgment. We conclude that the circuit court properly interpreted its own judgment, and affirm. This opinion will not be published.

2013AP1625 In re the marriage of: Archer v. Saffold

Dist IV, Dane County, Albert, J., Per Curiam

Attorneys: For Appellant: Archer, Lena D., pro se; For Respondent: Saffold, Corey, pro se

Wisconsin Court of Appeals

Civil
Torts — premises liability — negligence

In June 2008, John Firkus hurt his leg when he fell through precast concrete steps in front of a house that he rented from Gene Telfer. Firkus filed suit against Telfer and his insurer, Helenville Mutual Insurance Company (collectively, Telfer), claiming that Telfer was negligent in the inspection and maintenance of the rental property, and that Telfer’s negligence caused Firkus’s injuries and damages. Telfer appeals a judgment entered after a jury trial in favor of Firkus. The only issue on appeal is whether the circuit court was clearly wrong in changing the special verdict answer on cause from “No” to “Yes.” We agree with the circuit court that no credible evidence supported the jury’s answer that Telfer’s negligent inspection and maintenance of the rental property was not a cause of Firkus’s injuries, and we therefore affirm the judgment entered by the circuit court. Not recommended for publication in the official reports.

2013AP1551 Firkus v. Telfer et al.

Dist IV, Jefferson County, Hue, J., Kloppenburg, J.

Attorneys: For Appellant: Fricker, Matthew T., Hartford; For Respondent: Steinman, Rebecca, Milwaukee

Wisconsin Court of Appeals

Civil
Tax — property tax — fair market value — issue preclusion

Lands’ End, Inc. has, since 2006, challenged the City of Dodgeville’s 2005, 2006, 2007, 2008, 2009, 2010, 2011, and 2012 assessments of Lands’ End’s Dodgeville property. Three circuit court judges from three counties have issued decisions on the 2005 through 2010 challenges, and the 2011 and 2012 challenges are pending before a fourth circuit court. In the most recently completed round of circuit court litigation concerning the City’s 2007, 2009, and 2010 assessments, after a nine-day bench trial, circuit court Judge Robert P. VanDeHey determined the 2007, 2009, and 2010 fair market values and assessments of the Lands’ End property by combining the City’s appraiser’s “opinion of value” for the warehouse/distribution buildings on the property and Lands’ End’s appraiser’s “opinion of value” for the remaining buildings on the property.

Lands’ End appeals that part of the judgment that adopts the City’s appraiser’s values for the warehouse/distribution buildings, and the City cross-appeals that part of the judgment that adopts Lands’ End’s appraiser’s value for the remaining buildings on the property. Lands’ End also appeals the circuit court’s denial of its motions for summary judgment before trial and for judgment after trial, which Lands’ End had filed on the basis that issue preclusion applies to bind the parties to the fair market value of $25,000,000 established for 2006 by the first circuit court and affirmed on appeal. Lastly, Lands’ End appeals the circuit court’s denial of Lands’ End’s request for interest on the resulting 2007 property tax refund.

As explained below, we conclude that: (1) Lands’ End was entitled to summary judgment before trial as to the 2007 and 2009 assessments, on the basis that issue preclusion applies to bind the parties to the $25,000,000 fair market value established for 2006 in light of the evidence proffered on summary judgment; (2) issue preclusion does not apply as to the 2010 assessment in light of the evidence proffered at trial; (3) the circuit court properly weighed competing testimony and adopted the City’s appraiser’s values for the warehouse/distribution buildings and Lands’ End’s appraiser’s value for the remaining buildings based on the court’s reasoned consideration of that testimony as to the 2010 assessment; and (4) the circuit court lacks discretion to deny Lands’ End’s request for statutory interest as to the 2007 property tax refund. Accordingly, we affirm in part and reverse in part, and remand for further proceedings consistent with this opinion. Not recommended for publication in the official reports.

2013AP1490, 2013AP1491, 2013AP1492 Lands’ End Inc. v. City of Dodgeville

Dist IV, Iowa County, VanDeHey, J., Kloppenburg, J.

Attorneys: For Appellant: Millis, Don M., Madison; Polakowski, Jessica Hutson, Madison; For Respondent: Waskowski, Ted, Madison; Trupke, Amie B., Madison

Wisconsin Court of Appeals

Criminal
Criminal Procedure — plea withdrawal

Robert Brown appeals an order denying his motion for plea withdrawal. In Brown’s previous appeal, we remanded for an evidentiary hearing on whether Brown understood the legal meaning of “sexual contact” when he entered his guilty plea to second-degree sexual assault. Brown contends that, on remand, the circuit court erroneously relied on the testimony of his former attorney, and incorrectly concluded Brown understood the elements of second-degree sexual assault. We affirm. This opinion will not be published.

2013AP1136-CR State v. Brown

Dist III, Washburn County, Harrington, J., Per Curiam

Attorneys: For Appellant: Schlough, Scott S., Chippewa Falls; For Respondent: Kassel, Jeffrey J., Madison; Frost, Thomas H., Shell Lake

Wisconsin Court of Appeals

Criminal
Probation — revocation

Eric T. Alston appeals the circuit court’s order denying his petition for certiorari review of his probation revocation. Alston argues that his due process rights were violated because the hearing examiner who revoked his probation was not impartial. He also argues that the district attorney should not have been allowed to participate on behalf of the Department of Corrections at the revocation hearing. We affirm. This opinion will not be published.

2013AP1074 State ex rel. Alston v. Schwarz

Dist IV, Dane County, Colas, Per Curiam

Attorneys: For Appellant: Breedlove, Tristan, Madison; For Respondent: Rank, Peter, Madison

Wisconsin Court of Appeals

Criminal
Criminal Procedure — amended complaints — due process

Following a jury trial, Joel Hurley was convicted of one count of repeated sexual assault of the same child. Hurley moved for postconviction relief, raising several arguments, the majority of which the circuit court rejected. However, the court agreed Hurley was entitled to a new trial based on an improper remark the prosecutor made during his closing argument about certain other acts evidence. The court therefore entered an order vacating Hurley’s conviction, granting him a new trial, and denying his remaining postconviction claims.

The State appeals from the circuit court’s postconviction order, arguing a new trial is not warranted because the prosecutor’s remark about the other acts evidence was not improper. Hurley cross-appeals, arguing the circuit court erred by denying his other postconviction claims. He first argues the charge against him should have been dismissed because the amended complaint violated his right to due process. He also argues he is entitled to a new trial based on a different remark the prosecutor made during his closing argument. Finally, he argues a new trial is warranted because the circuit court erroneously admitted the other acts evidence.

We agree with Hurley that the amended complaint violated his right to due process. We therefore reverse the circuit court’s postconviction order in part and remand for the court to dismiss the charge against Hurley without prejudice. We also conclude the circuit court erred by admitting the other acts evidence, and the error was not harmless. Consequently, even absent dismissal of the charge, Hurley would be entitled to a new trial. Given our disposition of these two issues, we need not address the parties’ remaining arguments regarding the prosecutor’s closing argument. See State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989) (cases should be decided on narrowest possible ground). This opinion will not be published.

2013AP558-CR State v. Hurley

Dist III, Marinette County, Miron, J., Per Curiam

Attorneys: For Appellant: Brey, Allen R., Marinette; Weber, Gregory M., Madison; Hoffmann, Kent R., Marinette; Wittwer, Jacob J., Madison; For Respondent: Powell, Craig S., Milwaukee

Wisconsin Court of Appeals

Criminal
Criminal Procedure — mental responsibility

Corey R. Kucharski appeals the judgment convicting him of two counts of first-degree intentional homicide with the use of a dangerous weapon. He also appeals the order denying his postconviction motion. On appeal, Kucharski argues that he is entitled to a new trial in the interest of justice on the issue of his mental responsibility because there is a substantial probability that a new trial would produce a different result. Considering the evidence as a whole, we agree. Therefore, we grant a discretionary reversal under Wis. Stat. § 752.35 and remand with directions to conduct a new trial on the issue of Kucharski’s mental responsibility. Not recommended for publication in the official reports.

2013AP557-CR State v. Kucharski

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

Attorneys: For Appellant: Obernberger, Scott D., Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Moeller, Marguerite M., Madison

Wisconsin Court of Appeals

Criminal
Sentencing – modification — new factors

Eric Lamar Johnson, pro se, appeals an order denying his motion for sentence modification. He argues: (1) that the circuit court misused its discretion when it sentenced him because it did not consider his rehabilitative needs; (2) that the circuit court should modify his sentence now, nine years after his conviction, because his rehabilitative needs are a “new factor”; and (3) that the circuit court erred in denying his postconviction motion without a hearing. We affirm. This opinion will not be published.

2013AP1855-CR State v. Johnson

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

Attorneys: For Appellant: Johnson, Eric Lamar, pro se; For Respondent: Loebel, Karen A., Milwaukee; Probst, Robert, Madison

Wisconsin Court of Appeals

Criminal
Search and Seizure — reasonable suspicion

Gumersinda Gonzalez appeals the circuit court’s judgment convicting her of possession of THC. An officer found evidence of this crime after stopping Gonzalez for a defective headlight, detecting an odor of intoxicants coming from Gonzalez’s vehicle, and extending Gonzalez’s detention to conduct field sobriety tests. Gonzalez pled no contest after the circuit court denied her suppression motion, and she now challenges the circuit court’s suppression ruling. Gonzalez argues that the officer lacked reasonable suspicion of intoxicated driving to justify the extension of her detention to conduct the field sobriety tests. This case presents a close call. However, based on persuasive authority in the form of unpublished opinions, I agree with Gonzalez that reasonable suspicion was lacking here. I reverse the judgment and remand for the circuit court to suppress the evidence against Gonzalez obtained as a result of her unlawful detention. This opinion will not be published.

2013AP2585-CR State v. Gonzalez

Dist IV, Wood County, Potter, J., Lundsten, J.

Attorneys: For Appellant: Herbert, Michael J., Madison; For Respondent: Weber, Gregory M., Madison; Lambert, Craig S., Wisconsin Rapids

Wisconsin Court of Appeals

Criminal
Stalking — constitutionality

Donald Maier appeals the circuit court’s judgment convicting him of six counts of stalking, as a repeater. Maier also appeals the circuit court’s order denying his motion for postconviction relief. The stalking charges were based on two letters that Maier sent to jurors who had found him guilty in a prior criminal proceeding in 2006. Maier argues that (1) the stalking statute is unconstitutional as applied to him under the First Amendment because his letters did not constitute a “true threat”; (2) the evidence was insufficient for the jury to find a true threat; (3) his trial counsel was ineffective in several respects; and (4) his sentence should be vacated based on a new sentencing factor and because the sentence was unduly harsh and excessive. We reject Maier’s arguments, and affirm. Not recommended for publication in the official reports.

2013AP1391-CR State v. Maier

Dist IV, Wood County, Counsell, J., Lundsten, J.

Attorneys: For Appellant: Aquino, Thomas Brady, Madison; For Respondent: Kassel, Jeffrey J., Madison; Lambert, Craig S., Wisconsin Rapids

Wisconsin Court of Appeals

Criminal
Motor Vehicles – OWI — UTVs

Shawn N. Hill appeals his conviction for third-offense operating a motor vehicle while under the influence of an intoxicant. Hill argues that as he was operating a utility terrain vehicle at the time of the offense, he was charged under the wrong drunk driving statute and the court improperly denied his motion to dismiss. We agree that as Hill was operating a UTV, he should be charged with intoxicated operation of a UTV under Wis. Stat. § 23.33(4c), and therefore, we reverse. This opinion will not be published.

2013AP2549-CR State v. Hill

Dist II, Walworth County, Reddy, J., Reilly, J.

Attorneys: For Appellant: Swatek, Timothy P., Lake Geneva; For Respondent: Weber, Gregory M., Madison; Donohoo, Diane M., Elkhorn

Wisconsin Court of Appeals

Criminal
Motor Vehicles – OWI — probable cause

Carl Schlegel appeals his conviction for operating a motor vehicle while under the influence of an intoxicant, arguing that the arresting officer did not have probable cause to have him submit to a preliminary breath test or arrest him. We disagree and affirm. This opinion will not be published.

2013AP2521 Village of Grafton v. Schlegel

Dist II, Ozaukee County, Voiland, J., Reilly, J.

Attorneys: For Appellant: Piel, Walter Arthur, Jr., Milwaukee; For Respondent: Woodward, Johnathan G., Grafton

Wisconsin Court of Appeals

Criminal
Search and Seizure – scope — protective frisks

Miguel Navarrete, Jr., appeals from a judgment of conviction entered upon his no contest plea to one count of felon in possession of a firearm following the trial court’s denial of his suppression motion. Navarrete challenges the scope of his temporary detention and the legality of the officers’ protective frisk of his person. We conclude that the officers did not unreasonably extend the scope of the detention by running a computer check of Navarrete’s paper identification and that the pat-down frisk for weapons was reasonable under the totality of the circumstances. This opinion will not be published.

2013AP2000-CR State v. Navarrete

Dist II, Racine County, Boyle, J., Per Curiam

Attorneys: For Appellant: McClune, Scott Ryan, Milwaukee; For Respondent: O’Brien, Daniel J., Madison; Chiapete, W. Richard, Racine

Wisconsin Court of Appeals

Criminal
Search and Seizure — reasonable suspicion

Richard E. Houghton, Jr., appeals from a judgment convicting him of possession with intent to deliver THC. He contends that the circuit court wrongly denied his motion to suppress evidence because police lacked sufficient reason to stop his vehicle. We agree with Houghton, and therefore, we reverse the judgment and remand the cause for further proceedings. This opinion will not be published.

2013AP1581-CR State v. Houghton

Dist II, Walworth County, Race, J., Per Curiam

Attorneys: For Appellant: Walter, Andrew R., Elkhorn; For Respondent: Necci, Daniel A., Elkhorn; Winter, Tiffany M., Madison

Wisconsin Court of Appeals

Criminal
Sentencing — discretion

In these consolidated appeals, Darren Agnew appeals from a judgment convicting him of possessing cocaine with intent to deliver as party to the crime and from a judgment sentencing him after probation revocation for the same offense. Agnew also appeals from orders denying his postconviction motion seeking resentencing. We conclude that the circuit court properly exercised its discretion at sentencing and properly declined to resentence Agnew. We affirm. This opinion will not be published.

2013AP1394-CR, 2013AP1395-CR State v. Agnew

Dist II, Walworth County, Race, J., Per Curiam

Attorneys: For Appellant: Breffeilh, John Richard, Milwaukee; For Respondent: Necci, Daniel A., Elkhorn; Johnson-Karp, Gabe, Madison

Wisconsin Court of Appeals

Criminal
Motor Vehicles – OWI — involuntary intoxication

Penny A. Deppiesse appeals from a judgment of conviction entered after a jury found her guilty of operating while under the influence of a controlled substance, as a fourth offense within five years, and misdemeanor bail jumping. Deppiesse argues that the trial court erred by precluding her from raising a statutory intoxication defense and in improperly instructing the jury on the elements of OWI by referring to the various controlled substances in her system in both the conjunctive and the disjunctive.

We conclude that the trial court properly denied Deppiesse’s request for an intoxication defense instruction and that Deppiesse has forfeited appellate review of the allegedly erroneous OWI jury instruction. This opinion will not be published.

2013AP997-CR State v. Deppiesse

Dist II, Ozaukee County, Williams, J., Per Curiam

Attorneys: For Appellant: Bates, Gregory, Kenosha; For Respondent: Wellman, Sally L., Madison; Gerol, Adam Y., Port Washington

U.S. Supreme Court

Civil
Constitutional Law — Establishment Clause

It does not violate the Establishment Clause for a town to begin its board meetings with a prayer given by clergy selected from the congregations listed in a local directory.

Respondents’ insistence on nonsectarian prayer is not consistent with this tradition. The prayers in Marsh were consistent with the First Amendment not because they espoused only a generic theism but because the Nation’s history and tradition have shown that prayer in this limited context could “coexis[t] with the principles of disestablishment and religious freedom.” 463 U. S., at 786. Dictum in County of Allegheny suggesting that Marsh permitted only prayer with no overtly Christian references is irreconcilable with the facts, holding, and reasoning of Marsh, which instructed that the “content of the prayer is not of concern to judges,” provided “there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief.”463 U. S., at 794–795.

To hold that invocations must be nonsectarian would force the legislatures sponsoring prayers and the courts deciding these cases to act as supervisors and censors of religious speech, thus involving government in religious matters to a far greater degree than is the case under the town’s current practice of neither editing nor approving prayers in advance nor criticizing their content after the fact. Respondents’ contrary arguments are unpersuasive. It is doubtful that consensus could be reached as to what qualifies as a generic or nonsectarian prayer.

It would also be unwise to conclude that only those religious words acceptable to the majority are permissible, for the First Amendment is not a majority rule and government may not seek to define permissible categories of religious speech. In rejecting the suggestion that legislative prayer must be nonsectarian, the Court does not imply that no constraints remain on its content.

The relevant constraint derives from the prayer’s place at the opening of legislative sessions, where it is meant to lend gravity to the occasion and reflect values long part of the Nation’s heritage. From the Nation’s earliest days, invocations have been addressed to assemblies comprising many different creeds, striving for the idea that people of many faiths may be united in a community of tolerance and devotion, even if they disagree as to religious doctrine. The prayers delivered in Greece do not fall outside this tradition.

They may have invoked, e.g., the name of Jesus, but they also invoked universal themes, e.g., by calling for a “spirit of cooperation.” Absent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose, a challenge based solely on the content of a particular prayer will not likely establish a constitutional violation. See 463 U. S., at 794–795. Finally, so long as the town maintains a policy of nondiscrimination, the Constitution does not require it to search beyond its borders for non-Christian prayer givers in an effort to achieve religious balancing.

681 F.3d 20, reversed.

12-696 Town of Greece v. Galloway

Kennedy, J.; Alito, J., concurring; Thomas, J., concurring; Breyer, J., dissenting.

U.S. Supreme Court

Criminal
Sentencing — restitution

In calculating restitution for bank fraud, the district court properly ordered the defendant to pay the difference between the amount lent to him and the amount the banks received in selling the houses that had served as collateral for the loans.

The phrase “any part of the property . . . returned” refers to the property the banks lost, namely, the money they lent to Robers, and not to the collateral the banks received, namely, the houses. Read naturally, the words “the property,” which appear seven times in §3663A(b)(1), refer to the property that was lost as a result of the crime, here, the money. Because “[g]enerally, ‘identical words used in different parts of the same statute are . . . presumed to have the same meaning,’ ” Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U. S. 71, 86 (quoting IBP, Inc. v. Alvarez, 546 U. S. 21, 34), “the property . . . returned” must also be the property lost as a result of the crime. Any awkwardness or redundancy that comes from substituting an amount of money for the words “the property” is the linguistic price paid for having a single statutory provision that covers different kinds of property. Since valuing money is easier than valuing other types of property, the natural reading also facilitates the statute’s administration.

698 F. 3d 937, affirmed.

12-9012 Robers v. U.S.

Breyer, J.; Sotomayor, J., concurring.

U.S. Court of Appeals for the 7th Circuit

Civil
Evidence — relevance

Where a plaintiff was claiming emotion distress, the district court properly allowed the defendant to question him about the effect of his divorce.

“Plyler challenges the district court’s decision to allow Whirlpool to cross-examine him about his divorce. He argues that his divorce did not contribute to the emotional distress that followed the fire, so he contends that questions about his divorce were irrelevant. Evidence is relevant if it has ‘any tendency to make a fact more or less probable,’ see FED. R. EVID. 401, and we give significant deference to a district court’s decision weighing the probative value against prejudice, see Whitehead, 680 F.3d at 930; Cerabio LLC v. Wright Med. Tech., Inc., 410 F.3d 981, 994 (7th Cir. 2005). The inquiry into the emotional impact of Plyler’s divorce was relevant to damages because, after Plyler testified that the fire caused him emotional distress, Whirlpool was entitled to explore whether — despite his denial — other sources, including his divorce, contributed to his emotional distress. See FED. R. EVID. 401. Therefore, the district court did not abuse its discretion in allowing questions about the emotional impact of his divorce.”

Affirmed.

12-2798 Plyler v. Whirlpool Corp.

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

U.S. Court of Appeals for the 7th Circuit

Civil
Employment — national origin discrimination

Where an employee intimidated co-workers and sought to slow down work in order to get more overtime, his termination was not the result of national origin discrimination.

“Hnin suggests that TOA’s violation of its own policy establishes pretext. More specifically, Hnin maintains that TOA violated its own policy because it skipped any disciplinary steps and terminated him immediately without warning. TOA’s standards of conduct policy, however, provides that ‘[s]ome infractions are serious enough to warrant the probation or dismissal of the associate without prior warning.’ TOA’s handbook lists these infractions, including violations of its sexual harassment policies. In short, because TOA did not violate its own policy, this pretext argument fails. See Hague v. Thompson Distrib. Co., 436 F.3d 816, 828 (7th Cir. 2006). Hnin’s related argument that TOA did not en-force its harassment policy evenhandedly based on comparator evidence is equally unavailing because, as discussed in detail above, TOA terminated Smith’s employment without warning after conducting an investigation into his sex-based harassment and the other comparators’ misconduct was not similar enough to Hnin’s conduct to raise a genuine dispute of material fact for trial.”

Affirmed.

13-3658 Hnin v. TOA LLC

Appeal from the United States District Court for the Southern District of Indiana, Barker, J., St. Eve, J.

U.S. Court of Appeals for the 7th Circuit

Civil
Employment – FMLA — estoppel

Where an employer approved leave under the FMLA, it is estopped from revoking it later without cause.

“The problem with the State’s argument that the court only ruled on the first of two types of entitlement is that it is not supported by the procedural facts of the case nor by case law. Both parties appear to have acknowledged that the issue of entitlement was resolved prior to trial. Holder filed a motion in limine, moving the court to exclude any evidence of his wife’s medical condition on the theory that that issue had been resolved and was not subject to proof at trial. (R.50, pp.2-3). The State agreed that given the summary judgment ruling, the issue could not be raised at trial. (R.51, pp.1-2). And the pre-trial order did indeed conclude that “the Defendants are estopped from claiming that Holder was not entitled to FMLA leave.” (R.52 p.2). The State never sought to limit the summary judgment ruling to one particular type of entitlement.”

Affirmed.

12-1456 Holder v. IDOC

Appeal from the United States District Court for the Southern District of Illinois, Gilbert, J., Rovner, J.

U.S. Court of Appeals for the 7th Circuit

Civil
Labor — fair representation

An employee cannot bring suit against her union alleging breach of the duty of fair representation, seeking reinstatement.

“On appeal Lomanto challenges the district court’s conclusion that none of her requested relief is available to her. First, Lomanto argues that the union could convince the Postal Service to reinstate her. But, as the district court noted, the union itself cannot reinstate Lomanto and the court could not order the Postal Service to give her back her bid job because the Postal Service is not a party to the suit. Indeed, ‘relief against the Union in a civil action could never produce reinstatement.’ Baldini v. Local Union No. 1095, 581 F.2d 145, 149 (7th Cir. 1978).”

Affirmed.

12-1384 Zepperi-Lomanto v. American Postal Workers Union

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

U.S. Court of Appeals For the Seventh Circuit

Civil
Labor — arbitration

The arbitrator reasonably concluded that an employer’s bargaining proposals were timely.

“[T]he Union contends that, by allowing PPG to decrease the wages and benefits of existing employees, the district court erroneously rendered the arbitrator’s award ‘meaningless.’ We reject this argument, because the Union is wrong when it asserts that the court “interpreted the award as imposing no obligation whatsoever on PPG.” It is true, as the Union points out, that the arbitrator ruled some proposals untimely and declared that proposals first introduced on June 2 and 3 were ‘discretionary items for bargaining.’ But the Union overlooks changes that PPG did make to its offer in the wake of the arbitrator’s decision. PPG removed several proposals that were introduced after June 1 and did not relate to hourly labor cost reductions or the implementation of a two-tier employment system. For example, PPG’s final offer excised proposals that limited severance benefits and altered the pension agreement. At oral argument, the Union’s attorney acknowledged these changes but dismissed them as insignificant compared to the wage concessions. But PPG’s changes made in response to the arbitrator’s award undermine the Union’s argument that the award, as interpreted by both PPG and the district court, imposed ‘no obligation whatsoever on PPG.’ The award may not have been as favorable to the Union as it wanted, but it was not ‘meaningless.’”

Affirmed.

13-2468 AFL-CIO v. PPG Industries Inc.

Appeal from the United States District Court for the Central District of District of Illinois, Baker, J., Rovner, J.

U.S. Court of Appeals for the 7th Circuit

Civil
Immigration – asylum — Bulgaria

Where there is no pattern or practice of mistreatment of the Roma people in Bulgaria, asylum was properly denied.

“In Mitreva, we were also faced with a Roma asylum-seeker from Bulgaria. The conditions on the ground for the Bulgarian Roma then were similar to what they are now. There is no doubt that the Roma are victims of pervasive discrimination in employment, education, health care, and housing, and are occasionally the targets of violence. See U.S. Dep’t of State, Country Reports on Human Rights Practices for 2013, Bulgaria, at 24–26 (2013), available at http://www.state.gov/documents/organization/220473.pdf. But there is no indication that the Bulgarian government sanctions this conduct. Id.; Mitreva, 417 F.3d at 766. If any-thing, State Department reports indicate that anti-Roma violence has declined since Mitreva was decided in 2005, even as discrimination remains widespread. See U.S. Dep’t of State, 2010 Country Reports on Human Rights Practices, Bulgaria, at 23 (2010), available at http://www.state.gov/documents/organization/160182.pdf. In short, there is no reason for us to find a pattern of persecution of the Roma in Bulgaria in 2014 where there was none in 2005.”

Petition Denied.

13-1792 Georgieva v. Holder

On Petition for Review of a Final Order of the Board of Immigration Appeals, Flaum, J.

U.S. Court of Appeals for the 7th Circuit

Criminal
Habeas Corpus – ineffective assistance of counsel

Petitioner challenges his murder conviction because his trial counsel was ineffective in failing to object when the state prosecutor commented on his failure to testify.

The prosecutor said that it is the state’s burden to prove the defendant committed the crime but also said that “If that person whom committed the offense don’t talk, how would we ever know? We would speculate. Does it mean the person wasn’t shot and killed, it didn’t happen? It happened, and that’s what we have to prove to you, not why it happened.” The state court applied the wrong legal standard when it evaluated the defendant’s claim under a due process standard, not a Fifth Amendment standard. It also erred in saying the prosecutor’s comments on his silence were not used to indicate the defendant’s guilt. Evidence of motive would have been probative of guilt. The court’s application of the law was objectively unreasonable for AEDPA purposes.

However, under AEDPA the court had to apply the correct standard in a de novo review to determine whether the failure to object warranted reversal. It applied the Strickland test to determine that the defendant could not establish a reasonable probability that but for counsel’s errors the result of the trial would have been different. Even though there was a prior hung jury, only in close cases should that lead to a finding of prejudice. This is not such a case. There is no reasonable probability that adequate performance by counsel would have changed the outcome of the trial.

Affirmed.

12-3844 Ford v. Wilson

Appeal from the United States District Court for the Northern District of Indiana, South Bend Division, Tinder, J.

U.S. Court of Appeals for the 7th Circuit

Criminal
Habeas Corpus — waiver

Where the state court held that a prisoner’s guilty plea waived any claim of ineffective assistance, the denial of his federal habeas corpus claim must be reversed.

“The state suggests that we overlook the state court’s erroneous statement that Avila’s claims ‘were waived by his guilty pleas,’ characterizing it as a superfluous statement of a general principle, a ‘fugitive sentence’ in an otherwise unobjectionable opinion that should be read to have implicitly applied the correct rule of Strickland. A peculiarity of habeas corpus jurisprudence is that if the state court had simply denied Avila’s claim without explanation, we would be required to assume that the court had applied Strickland, and we could grant relief only if the petitioner proved the negative by showing there was no reasonable basis for the result reached by the state court. See Harrington v. Richter, 562 U.S. —, —, 131 S. Ct. 770, 784 (2011); cf. Early v. Packer, 537 U.S. 3, 8 (2002) (state court need not cite or even know Supreme Court cases so long as ‘neither the reasoning nor the result’ of its decision contradicts them). But here the state appellate court did explain its reasoning. Because that reasoning contradicted clearly established federal law as determined by the Supreme Court, § 2254(d) is not a barrier to relief.”

Reversed and Remanded.

13-1833 Avila v. Richardson

Appeal from the United States District Court for the Eastern District of Wisconsin, Callahan, Mag. J., Hamilton, J.

U.S. Court of Appeals for the 7th Circuit

Criminal
Criminal Procedure – Miranda warnings — public safety exception

Where a police officer asked a suspect what was in a bag he had just abandoned, the question was within the public safety exception to Miranda.

“Whatever was in the red bag had prompted its owner to put it by a garbage can in an alley, had prompted Hernandez to run when he had it, and had prompted him to drop it when he saw police officers. Hernandez had already turned over what appeared to be heroin to the officers — a drug often administered by a (sometimes used) syringe and, therefore, associated with blood-borne disease. See United States v. Carrillo, 16 F.3d 1046, 1049 (9th Cir. 1994) (stating that ‘the danger of transmission of disease or contact with harmful substances is real and serious enough’). Further, ‘drug dealers are known to arm themselves’ so the officers could have reasonably suspected a firearm might be in the bag. See United States v. Are, 590 F.3d at 506 (citing United States v. Edwards, 885 F.2d 377, 384 (7th Cir. 1989)). Thus, the officers could not ignore it, see Quarles, 467 U.S. at 657 (firearm left unattended was a public safety concern), but grabbing or opening the red bag would place the officers at risk of harm (impalement on a heroin needle or bumping a loaded gun). See Carrillo, 16 F.3d at 1049 (holding that asking a suspect whether he ‘had any drugs or needles on his person’ was within the public safety exception because ‘the danger of transmission of disease or contact with harmful substances is real and serious enough; a pressing need for haste is not essential.’); see also United States v. McDaniel, 182 F.3d 923 at *3 (7th Cir. 1999) (unpublished table decision) (‘The need to determine whether McDaniel was armed or carrying potentially harmful drug paraphernalia falls squarely within the Quarles exception.’). That the officers did not articulate these concerns is no matter; the public safety exception applies based on objective facts, not subjective motivations. See Quarles, 467 U.S. at 655–56. Accordingly, Officer Pierri’s question about what the red bag contained was within the public safety exception to Miranda.”

Affirmed.

13-2879 U.S. v. Hernandez

Appeal from the United States District Court for the Northern District of Illinois, Der-Yeghiayan, J., Manion, J.

U.S. Court of Appeals for the 7th Circuit

Criminal
Habeas Corpus — ineffective assistance

Where a suppression motion was unlikely to have been granted, it was not deficient performance for the prisoner’s attorney not to have argued it.

“Despite our doubts that the evidence should have been suppressed, we are less certain than was the state court that the lawyer’s decision not to move to suppress was a reasonable strategy. The ‘Sixth Amendment does not require counsel … to press meritless arguments before a court,’ Lilly v. Gilmore, 988 F.2d 783, 786 (7th Cir. 1993), and it is always good strategy to avoid wasting time or the court’s attention with claims that are going nowhere. Peterson’s claim lay somewhere north of meritless. Confronted with a client who made an incriminating statement to a police officer without receiving Miranda warnings, another lawyer might well have filed a motion to suppress despite the fact that Liethen was off duty and did not physically restrain Peterson’s movement. Cf. Gentry v. Sevier, 597 F.3d 838, 851 (7th Cir. 2010) (state court unreasonably applied Strickland where attorney’s failure to seek suppression of evidence seized during an obviously unconstitutional search and seizure was ‘beyond the pale of an objectively reasonable strategy’). Nevertheless, given the weakness of this particular suppression claim, we cannot say that the state court unreasonably applied Strickland in evaluating the performance of Peterson’s attorney.”

Affirmed.

12-2924 Peterson v. Douma

Appeal from the United States District Court for the Eastern District of Wisconsin, Gorence, Mag. J., Hamilton, J.

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