Weekly Case Digests — July 14-18, 2014

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Wisconsin Law Journal’s Case Digests, July 14-18, 2014

CIVIL OPINIONS

Wisconsin Supreme Court

Civil
Remedies — harassment injunctions

Wis. Stat. sec. 813.125 can extend injunctive protection to institutions as well as natural persons.

“We hold that Wis. Stat. § 813.125 can extend injunctive protection to institutions as well as natural persons. We further hold that the circuit court’s decision to grant a harassment injunction was a proper exercise of its discretion, and sufficient evidence existed for the court to find that Decker’s conduct constituted harassment and lacked a legitimate purpose. However, because the parties agree the injunction was overbroad, we remand to the circuit court to further clarify the scope of the injunction. For these reasons, the decision of the court of appeals is reversed, and the cause is remanded to the circuit court.”

Reversed and Remanded.

2011AP2902 Board of Regents – UW System v. Decker

Gableman, J.

Attorneys: For Appellant: Grass, Gary, Milwaukee; For Respondent: Harlow, R. Duane, Madison

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

Civil
Public Health – disability benefits

Where the ALJ discounted the opinion of the agency’s own examining physician, the denial of disability benefits must be reversed.

“This appeal from the denial of Social Security disability benefits is unusual because the administrative law judge discounted the opinion of the agency’s own examining physician to conclude that the claimant before him was not disabled. Claimant Cheryl Beardsley argues that the ALJ erred by giving too little weight to the opinion of the examining doctor and too much weight to an erroneous view of her daily activities, particularly the care she provided for her elderly mother. Ms. Beardsley also argues that the ALJ improperly held against her the decision not to seek surgery without trying to ascertain the reasons for her reluctance. We agree. These errors undermined the ‘logical bridge’ between evidence and conclusion that is needed to affirm a denial of disability benefits. See Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000). The judgment of the district court affirming the denial of benefits is reversed and Ms. Beardsley’s case is remanded to the Commissioner of Social Security for proceedings consistent with this opinion.”

Reversed and Remanded.

13-3609 Beardsley v. Colvin

Appeal from the United States District Court for the Northern District of Indiana, Van Bokkelen, J., Hamilton, J.

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

Civil
Public Health — disability benefits

Where the ALJ concluded that a disability claimant was able to work despite hallucinations, uncontrollable rage, COPD and chronic bifrontal tension headaches, the denial of benefits must be reversed.

“Indeed, the Commissioner seems to be suggesting that the hypothetical and the mental RFC adequately accounted for Yurt’s limitations in concentration, persistence, and pace by limiting Yurt to unskilled work. But we have repeatedly rejected the notion that a hypothetical like the one here confining the claimant to simple, routine tasks and limited interactions with others adequately captures temperamental deficiencies and limitations in concentration, persistence, and pace. See generally Stewart, 561 F.3d at 685 (collecting cases); see also Craft, 539 F.3d at 677–78 (restricting claimant to unskilled, simple work does not account for his difficulty with memory, concentration, and mood swings); Young v. Barnhart, 362 F.3d 995, 1004 (7th Cir. 2004); see also SSR 85-15, 1985 WL 56857 at *6 (1985) (‘[B]ecause response to the demands of work is highly individualized, the skill level of a position is not necessarily related to the difficulty an individual will have in meeting the demands of the job. A claimant’s [mental] condition may make performance of an unskilled job as difficult as an objectively more demanding job.’). The ALJ specifically found at Step 4 that Yurt had ‘moderate difficulties … [w]ith regard to concentration, persistence, or pace.’ These limitations were highlighted again in Dr. Lovko’s findings on the MRFCA form. Beyond stating that Yurt could perform ‘unskilled task[s] without special considerations,’ the hypothetical does nothing to ensure that the VE eliminated from her responses those positions that would prove too difficult for someone with Yurt’s depression and psychotic disorder. Nor is this a case like Simila v. Astrue, 573 F.3d 503, 522 (7th Cir. 2009), where the hypothetical describes the claimant’s underlying mental diagnoses (chronic pain syndrome and somatoform disorder) and the link between those conditions and the mental limitations is clear. In short, although the ALJ’s hypothetical contained several limitations accounting for Yurt’s difficulties in social functioning, the blanket statement that he could perform ‘unskilled’ work fails to accurately capture Yurt’s documented difficulties with concentration, persistence, and pace. This failure to build an ‘accurate and logical bridge’ between the evidence of mental impairments and the hypothetical and the mental RFC requires us to remand for further proceedings. See O’Connor-Spinner, 627 F.3d at 620–21; Craft, 593 F.3d at 677–78.”

Reversed and Remanded.

13-2964 Yurt v. Colvin

Appeal from the United States District Court for the Northern District of Indiana, Cosbey, Mag. J., Rovner, J.

CIVIL COMMITMENT

Wisconsin Court of Appeals

Civil
Civil Commitment – extension — sufficiency of the evidence

Vermetrias W. appeals from an order extending her mental health commitment. Vermetrias argues that the evidence was insufficient to prove that she would go off of her medication and become dangerous if she were not under continued commitment. We disagree. Although Vermetrias has a long history of controlling her illness, recent events support the court’s finding that she was not ready to be released from her commitment. This opinion will not be published.

2014AP851-FT In the matter of the mental commitment of Vermetrias W.

Dist II, Kenosha County, Kerkman, J., Reilly, J.

Attorneys: For Appellant: Hirsch, Eileen A., Madison; For Respondent: Moyer, John F., Kenosha

CIVIL PROCEDURE

Wisconsin Court of Appeals

Civil
Civil Procedure — summary judgment — local rules

This is an asbestos-mesothelioma case, which the circuit court dismissed on summary judgment. John P. Gregovich, personal representative of the estate of George Gregovich, and Luanne Gregovich by John Gregovich, guardian of her person, and Sandra Budzien, guardian of her estate, appeal the orders granting summary judgment to sixteen defendants: (1) Cleaver-Brooks, Inc., (2) Honeywell International, Inc., (3) General Electric Company, (4) Eaton Corporation, (5) Aurora Pump, (6) ITT Corporation, (7) FMC Corporation and Sterling Fluid Systems; (8) Yeomans Chicago Corporation; (9) Lennox Industries, Inc., (10) Auer Steel & Heating Supply, (11) Milwaukee Stove & Furnace Supply Company, (12) Rockwell Automation, (13) Superior Boiler Works, Inc., (14) Crane Company, (15) Kohler Company, and (16) Weil-McLain. Except as noted in this opinion, we refer to the appellants as “Gregovich” and use the singular.

Gregovich contends that the circuit court erroneously exercised its discretion when it refused to consider the summary-judgment materials he submitted either because the response briefs were over the local-rule, 25-page limit or because Gregovich filed his summary-judgment materials a few days late.

We reverse the grant of summary judgment of all the defendants listed here, except Rockwell Automation and Lennox Industries, and remand with directions that the circuit court allow Gregovich to file its summary-judgment materials as to Superior Boiler Works, Inc., Crane Company, Kohler Company, and Weil-McLain and to consider Gregovich’s summary-judgment materials already filed as to the other defendants. The circuit court shall then, after consideration of the entire Record, decide the summary-judgment motions broken down as to each of these fourteen defendants. The breakdown shall identify whether genuine issues of material fact exist as to each defendant, and if genuine issues of material fact do exist, the circuit court shall specify what the disputed issues are as to each defendant. See Wis. Const. art. VII, § 5(3) (“The appeals court … shall have supervisory authority over all actions and proceedings in the courts of the district.”); Wis. Stat. § 752.02 (“The court of appeals has supervisory authority over all actions and proceedings in all courts except the supreme court.”).

We affirm the order granting summary judgment to Rockwell Automation because the circuit court accepted Gregovich’s summary-judgment materials opposing Rockwell’s summary-judgment motion as that response brief met the page limits, and because the trial court’s decision dismissing Rockwell was correct. We also affirm the order granting summary judgment to Lennox because Gregovich’s argument as to Lennox is not adequately developed. Publication in the official reports is not recommended.

2013AP1234, 2013AP2741 Estate of George Gregovich et al. v. Auer Steel & Heating Supply et al.

Dist I, Milwaukee County, Conen, J., Fine, J.

Attorneys: For Appellant: Tays, Ronald G., Milwaukee; Straus, Alex R., Mount Pleasant; For Respondents: Simpson, Arthur P., Milwaukee; Binder, Thomas J., Milwaukee; Gilligan, Thomas A., Jr., Saint Paul, Minn.; Griffin, Daniel Raymond, Chicago; Johanningmeier, Josh, Madison; Poland, Douglas M., Madison; Kemp, Matthew T., Milwaukee; Anderson, Carmen N., Milwaukee; Carlson, Steven Gustaf, Milwaukee; Gierke, Nora E., Wauwatosa; Thibodeau, Thomas R., Duluth, Minn.; Feriancek, Jerome D., Duluth, Minn.; Conrad, Christopher J., Waukesha; Carlson, Eric, Milwaukee; Terschan, Frank R., Milwaukee; Cabush, Thomas A., Milwaukee; Woehl, Dustin, Milwaukee

CIVIL RIGHTS

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

Civil
Civil Rights — excessive force

In an excessive force trial, the district court properly admitted evidence that the plaintiff had a knife strapped to his thigh.

“Barriera’s actions leading up to the shooting were highly contested. The officers testified that he lunged at them with a knife in his hand, causing them to fear for their lives. Wilson argued that the bullet trajectory and blood evidence compelled the conclusion that Barriera was sitting on his bed when he was shot. The fact that Barriera had a knife taped to his thigh makes it more likely that the officers’ version is correct; it suggests that Barriera was prepared for battle and more likely to act aggressively. Wilson concedes as much, acknowledging that ‘[i]t is both reasonable and probable that jurors inferred that Barriera intended to resist or other-wise act out in violence against the officers by strapping a knife to his leg prior to the officers’ arrival.’ Appellant’s Br. at 47–48. Wilson argues that the evidence was highly prejudicial because it is likely that the jury considered it when assessing whether the decision to shoot Barriera was reasonable. We disagree. ‘We presume that juries follow the instructions given them by the court,’ Soltys v. Costello, 520 F.3d 737, 744 (7th Cir. 2008), and here the jury was instructed with regard to the issue of reasonable force as follows: ‘You must make this decision based on what the officer knew at the time of the use of force, not based on what you now know.’ Trial Tr. at 1140. Given the testimony about the knife being found in the ambulance hidden under Barriera’s clothing, the jury was aware that Hurman did not know about that knife when he shot Barriera and therefore its existence was not relevant to whether his actions were reasonable.”

Affirmed.

13-1279 Wilson v. City of Chicago

Appeal from the United States District Court for the Northern District of Illinois, Lefkow, J., Lawrence, J.

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

Civil
Civil Rights — Eighth Amendment

The imposition of a BAP violated a prisoner’s due process rights by imposing an atypical and significant hardship compared to the ordinary incidents of prison life, without appropriate notice and an opportunity to be heard.

“Between June 24, 2005 and March 31, 2006 (when he was transferred to another facility), Townsend was subjected to different BAPs for 259 days.4 During that time, his property and privileges were severely constrained. For at least ninety of those days, he was either naked or issued only a paper gown or segregation smock. He was denied a regular mattress for 106 days, and was not allowed sheets or a pillow for almost the entirety of the BAP period. When he did not have a regular mattress, he slept on either a rubber mat or a concrete slab. Cold air blew into his cell from the ventilation system and Townsend was often very cold. He walked non-stop around his cell in an attempt to keep warm. He was allowed out of his cell for one hour per week to read his mail and write letters. He was not allowed access to toiletries or a towel for almost the entirety of his confinement under the BAP. That meant he had no toilet paper (or at times only a very small amount of toilet paper), no soap to wash his hands, and no toothpaste or toothbrush. For 136 days, he was denied writing materials in his cell, and his access to books and mail was severely restricted. For a lengthy period, he was given his meals in a bag, to eat with his hands, rather than a meal tray with utensils that was provided to other prisoners. For a period of weeks (he does not specify how many), Townsend was entirely naked and provided with no clothing, bedding, linen, mattress or shoes.”

Affirmed in part, and Vacated in part.

12-3620 Townsend v. Cooper

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

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

Civil
Civil Rights — deliberate indifference

Even though a plaintiff was tardy in requesting that a case be tried under the objective reasonableness standard, rather than deliberate indifference, where there would be no prejudice to the defendants, it was error for the district court to deny the request.

“A party’s attempted jump-shift in legal theory on the brink of trial is certainly not a vested right. As we have stated, it is within a district court’s discretion to deny such a change where significant prejudice or harm would accrue to the non-movant, and equities in favor of the movant do not compel the change. Here, the record provides no elaboration from the district court or the Defendant-Appellees of what actual, specific prejudice would have resulted to the Defend-ant-Appellees in defending against the correct Fourth Amendment standard. And in scrutinizing the record, we are unable to find compelling equities that would have justified the district court’s decision to go to trial under the incorrect standard. In the absence of such countervailing equities, we are not convinced by the district court’s statement that going to trial under the deliberate indifference standard while ‘recogniz[ing] plaintiff’s claim under the Fourth Amendment’ was ‘the only way to allow plaintiff to proceed on her claim without unduly prejudicing defendants with a last-minute, significant shift in plaintiff’s theory of recovery at trial.’ Order at 4 (W.D. Wis. May 30, 2013), ECF No. 705. Indeed, it is unclear what it means to allow a plain-tiff to proceed with a Fourth Amendment claim, but only under an Eighth Amendment standard. The fact that more intermediate measures were available to the district court — such as granting a continuance to allow the Defendant-Appellees to retool their defense, or conditioning the grant to amend the legal theory on the Plaintiff-Appellant’s payment of any additional discovery costs — bolster our conclusion. See Estes v. Ky. Utils. Co., 636 F.2d 1131, 1134 (6th Cir. 1980) (‘This is not to say, however, that disallowance of the amendment is the only course open to a district court faced with such a motion. The scope of the district court’s discretion in this area is broad, and in a proper case conditions may be imposed on the party seeking the amendment; for example, costs of preparing for litigation could be imposed on the party who asserts a valid, but untimely, dispositive [legal theory].’); 6 Charles Alan Wright et al., Federal Practice and Procedure § 1486 (3d ed.) (‘If the party opposing the amendment can be protected by the use of conditions from any possible prejudice that might result from the untimeliness of the amendment, there is no justifiable reason for not allowing it.’). Had the Plaintiff-Appellant refused these or comparable ameliorating measures, perhaps the district court would have been entitled to deny leave to amend the theory. See Campania Mgmt. Co. v. Rooks, Pitts & Poust, 290 F.3d 843, 849 (7th Cir. 2002) (‘A trial court may deny leave to amend when the amendment would cause the opposing par-ty to bear additional discovery costs litigating a new issue and the moving party does not offer to reimburse the non-moving party for its expenses.’).”

Reversed and Remanded.

13-2379 King v. Kramer

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

CONSUMER PROTECTION

Wisconsin Supreme Court

Civil
Consumer Protection — attorney fees

Where a defendant had no notice of a plaintiff’s agreement with his attorney, the plaintiff’s attorney cannot seek statutory attorney fees from the defendant, where the parties settled the case without their attorneys.

“We conclude that the statutory right to recover attorney’s fees belonged to Betz, and that Betz did not assign his right to recover those fees to Megna in their fee agreement. Because we conclude that Betz did not assign his right to recover statutory attorney’s fees to Megna, we must conclude that Diamond Jim’s could not have had notice of the assignment. As a result, we conclude that Megna may not seek statutory attorney’s fees directly from Diamond Jim’s, and that the settlement agreement entered into between Diamond Jim’s and Betz is clear, unambiguous, and enforceable. We therefore reverse the court of appeals.”

Reversed.

2012AP183 Betz v. Diamond Jim’s Auto Sales

Ziegler, J.

Attorneys: For Appellant: Megna, Vincent P., Milwaukee; Grzeskowiak, Susan M., Milwaukee; For Respondent: Drabot, Lawrence J., Milwaukee; Mills, Sara, Milwaukee

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

Civil
Consumer Protection — Lemon Law — Magnuson-Moss

It was not error to submit both the plaintiff’s Lemon Law claim and his Magnuson-Moss claim to the jury.

“The court did not err in this case by submitting the Magnuson-Moss claim to the jury. The jury was instructed that the elements of the Magnuson-Moss claim were: (1) a defect, (2) covered by warranty, (3) a reasonable opportunity for the manufacturer to repair, and (4) the manufacturer’s failure to repair within a reasonable time. Those elements overlapped substantially with the Lemon Law claim. The evidence was clearly sufficient to support a verdict as to liability, which was the only issue presented to the jury. The Magnuson-Moss claim also was not irrelevant because the court might have awarded equitable relief available only under federal law. Also, Burzlaff might still have recovered attorney fees and costs under his federal claim even if the jury had found for Thoroughbred on the Lemon Law claim. See 15 U.S.C. § 2310(d)(2). The availability of equitable relief is relevant even though Burzlaff did not specifically request it beyond the generic prayer for ‘all such other relief as the Court deems just and equitable’ in his complaint. The district court should award the prevailing party any relief to which he is entitled, whether or not he has asked for it in his complaint. See Fed. R. Civ. P. 54(c).”

Affirmed.

13-2520 Burzlaff v. Thoroughbred Motorsports Inc.

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

DEBTOR-CREDITOR

Wisconsin Supreme Court

Civil
Debtor-Creditor – priority

Serving a supplemental proceedings order does not create a priority in collecting money judgments.

“We conclude that supplemental proceedings under ch. 816 are a discovery tool in aid of judgment collection. Decade’s serving Collier with an order to appear for supplemental proceedings did not give rise to a blanket lien on all of Collier’s personal property that prevented SB1 from pursuing collection. A judgment creditor obtains an interest in a judgment debtor’s identified, non-exempt personal property superior to other unsecured creditors when it dockets its money judgment, identifies specific personal property and levies that property. Levying may be accomplished by at least three different means: (1) by executing against specific personal property with the assistance of a sheriff; (2) by serving the garnishee defendant in a garnishment action to seize specific property in the hands of the garnishee defendant; or (3) by obtaining an order to apply specific personal property to the satisfaction of the judgment, which a creditor may do with the assistance of a supplemental receiver. Wis. Stat. § 815.05(6) (2011-12); Wis. Stat. § 812.01; Wis. Stat. § 816.08.”

“Here, SB1 was the first judgment creditor with a docketed money judgment to levy specific, non-exempt personal property of Collier. It did so by obtaining a court order to turn over specifically identified property to its receiver. Accordingly, we affirm the decision of the court of appeals that concluded that SB1 has priority over Decade in regard to the specific personal property SB1 identified and levied. However, insofar as the decision of the court of appeals can be read to recognize a blanket lien in favor of SB1 that prevents other creditors from pursuing collection from Collier’s personal property, we modify that decision because no blanket lien exists.”

Affirmed as modified.

2011AP2597 Associated Bank N.A. v. Collier

Roggensack, J.

Attorneys: For Appellant: Prange, Roy L., Jr., Madison; Bailey-Rihn, Valerie, Madison; For Respondent: Van Lieshout, John M., Milwaukee; Levin, Neal H., Chicago

Wisconsin Supreme Court

Civil
Debtor-Creditor — legal malpractice claims

Legal malpractice claims can be assigned as collateral.

“We conclude that (1) the debtor lawfully assigned the potential proceeds from his legal malpractice claim as collateral for a contemporaneously incurred debt to Heartland; and (2) Heartland is entitled to the proceeds because it perfected a security interest in them before Town Bank obtained a superior interest by levy. See Associated Bank N.A. v. Collier, 2014 WI 62, ¶3, __ Wis. 2d __, __ N.W.2d __ (a judgment creditor with a docketed money judgment obtains a superior interest in a debtor’s non-exempt personal property when it levies specifically identified property). In reaching this conclusion, we note that Heartland lent money to the debtor. In consideration for the loan, Heartland took a security interest in the potential proceeds of the debtor’s malpractice claim. This allowed Heartland to access the debtor’s property in a way that Town Bank could not. Heartland filed a financing statement for its security interest in the proceeds of the malpractice claim before the proceeds came into existence. Therefore, the moment the debtor acquired proceeds from his claim, Heartland’s interest became superior to that of other creditors, including Town Bank, who had not levied the proceeds.”

Reversed.

2011AP2774 Attorney’s Title Guaranty Fund Inc. v. Town Bank

Roggensack, J.

Attorneys: For Appellant: Hutchinson, David H., New Berlin; For Respondent: Cisar, David I., Milwaukee; Mullaney, Peter F., Milwaukee

EMPLOYMENT

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

Civil
Employment – RLA — sex discrimination — retaliation

The Railway Labor Act does not preclude claims of sex discrimination and retaliation.

“RLA preclusion, properly applied, does nothing more than keep disputes actually arising under a collective bargaining agreement out of court. Employees may enter into a contract requiring that other types of claim be brought only in arbitration, but if a collective bargaining agreement simply prohibits employers from doing some-thing (for example discriminating on a certain basis) or merely allows arbitration of some type of claim, a claim under an independent law covering the same subject matter is not precluded. See Felt v. Atchison, Topeka & Santa Fe Ry. Co., 60 F.3d 1416, 1419 (9th Cir. 1995) (Title VII claim of religious discrimination was not precluded simply because the collective bargaining agreement ‘provides for arbitration of claims Nos. 13-1944 & 13-2054 25 of religious discrimination’); see also Hawaiian Airlines, 512 U.S. at 262–63 (explaining that a wrongful discharge claim based on state law can go forward even if it depends on the same facts as a wrongful discharge claim under a collective bargaining agreement).”

“So Carlson’s claims under Title VII could proceed in federal court even if the collective bargaining agreement prohibited sex discrimination and retaliation. Notably, however, the collective bargaining agreement in this case (as CSX conceded at oral argument) does not prohibit sex discrimination or retaliation, meaning that CSX is making a truly radical argument: that Carlson cannot assert in any forum her right to be free from sex discrimination and retaliation. We can see no reason to apply the RLA in a way that, in addition to having no basis in the text, would lead to that extraordinary result.”

Reversed and Remanded.

13-1944 & 13-2054 Carlson v. CSX Transportation Inc.

Appeals from the United States District Court for the Southern District of Indiana, Young, J., Hamilton, J.

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

Civil
Employment — disability discrimination — accommodation

An employer’s failure to provide additional services of a job coach to an employee with Down’s Syndrome was not a failure to accommodate under the ADA.

“After the flag pin incident, the parties agree that Diana Reeves suggested to Sean’s supervisor that Reeves work with a job coach again. The supervisor told her not to worry, and that a job coach was not necessary. Diana Reeves did not press the issue, and did not ask again. She did not suggest that a job coach would help prevent future profane outbursts; indeed, she did not request a job coach after any of Sean’s previous infractions that involved cursing in front of customers. On these undisputed facts, Diana Reeves did not make “reasonable efforts to help the other party decide what reasonable accommodations are necessary.” Id. After being told that Jewel did not think the job coach was necessary, she did not suggest alternative accommodations or express a fear Sean would have additional, more serious, behavior problems. A tentative request for an accommodation to address minor theft does not imply a request for an accommodation for inappropriate verbal outbursts that violate the employer’s anti-harassment policies.”

Affirmed.

13-3782 Reeves v. Jewel Food Stores Inc.

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

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

Civil
Employment — national origin discrimination

Where an employee was insubordinate, his termination was not the result of national origin discrimination.

“Tank argues T-Mobile’s explanations for firing him are insufficient to motivate his discharge because T-Mobile disciplined other employees for comparable infractions far less harshly. To show that co-workers are similarly situated, Tank must demonstrate that the putative similarly situated employees were directly comparable to him in all material respects. Patterson v. Ind. Newspapers, Inc., 589 F.3d 357, 365–66 (7th Cir. 2009). This requires Tank to show that he and an alleged comparator ‘engaged in similar conduct without such differentiating or mitigating circumstances as would distinguish their conduct or the employer’s treatment of them.’ Hanners v. Trent, 674 F.3d 683, 692–93 (7th Cir. 2012). As circumstantial evidence, Tank offers Ray and another VP as comparators to support his retaliation claim.4 Tank alleges that T-Mobile did not investigate Ray when he allowed a vendor to award itself 90% of T-Mobile’s outside contracts for the region or when a VP was found to have accepted gifts from a vendor whom he was perceived as favoring. Ray and the other VP are not valid comparators, how-ever, because neither engaged in the litany of misconduct that Tank engaged in. Tank was found not only to have demonstrated favoritism towards one of his employees, he was also found to have engaged in unprofessional conduct, and insubordination. In addition, the VP that Tank claims was not investigated was indeed investigated. Moreover, Tank was fired after being investigated a second time for breaking company rules. Neither of the T-Mobile employees Tank points to as comparators broke the rules a second time so they are not actually comparators.”

Affirmed.

13-1912 Tank v. T-Mobile USA Inc.

Appeal from the United States District Court for the Northern District of Illinois, Guzmán, J., Williams, J.

ENVIRONMENTAL LAW

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

Civil
Environmental Law — Asian carp

States can’t sue the Army Corps of Engineers to adopt a specific plan to prevent Asian carp from infiltrating the Great Lakes.

“An injunction requiring the Corps to exercise its discretion in favor of a certain plan and essentially to lobby Congress to adopt and provide funds for that plan, would be an extraordinary and likely inappropriate use of a federal court’s equitable powers. Drafting and enforcing such an in-junction would be impracticable. See RESTATEMENT (SECOND) OF TORTS § 943 cmt. A; see also FED. R. CIV. P. 65 (d)(1)(C). It also realistically might not provide any relief to the States, because its effectiveness would depend entirely on the independent workings of another branch of the federal government.”

“To the extent the States believe that the Corps has failed to live up to its statutory duties, they may have other remedies. They have argued that the Corps should have used the Report to make recommendations as to which measures Congress should adopt to combat the Asian carp, rather than offering only alternative measures for stopping the carp’s progress. While they do not amplify on why they think that the statute requires this, such an allegation (if properly pleaded) could form the basis of a claim for judicial review of administrative action under 5 U.S.C. § 702 (particularly now that the March 3, 2014, comment deadline for the Report has passed and the Report has become a ‘final agency action’ for the purposes of review, see 5 U.S.C. § 704). Alternatively, if the Corps stalls on progress toward a solution to the threat of the Asian carp reaching the Great Lakes, there could come a time when the States might be able to state a claim for review of agency action ‘unlawfully withheld or unreasonably delayed’ within the meaning of 5 U.S.C. § 706(1). We express no opinion as to the merits of these potential claims, which are not before us.”

Affirmed.

12-3800 State of Michigan v. United States Army Corps of Engineers

Appeal from the United States District Court for the Northern District of Illinois, Tharp, J., Wood, J.

IMMIGRATION

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

Civil
Immigration — cancellation of removal

In determining whether offenses are ‘described under’ INA §§ 212(a)(2), 237(a)(2), and 237(a)(3) for purposes of the eligibility criteria of INA § 240A(b)(1)(C), only language specifically pertaining to the criminal offense, such as the offense itself and the sentence imposed or potentially imposed, should be considered.

“This interpretation is reasonable. It is a sensible way (and perhaps the only way) to give effect to each word of INA § 240A(b)(1)(C). To be sure, this interpretation does not give effect to certain words in the cross-referenced provisions, but as noted, every possible construction necessarily reads out certain terms. And it is quite possible that by using the phrase ‘offense under,’ Congress meant to do exactly what the Board has done (even if Congress could have achieved this result much more clearly). See Gonzalez-Gonzalez, 390 F.3d at 651–52. In addition, the Board’s interpretation gains further support from the fact that Congress has more precisely distinguished between ‘inadmissibility’ and ‘deportability’ in other provisions of the INA. See, e.g., INA § 240A(d)(1) (explaining that, when measuring an alien’s period of continuous physical presence in the United States, the clock stops ‘when the alien has committed an offense … that renders the alien inadmissible to the United States under section 212(a)(2) or removable from the United States under section 237(a)(2) or 237(a)(4), whichever is earliest’); 8 U.S.C. § 1229b(d)(1); Cortez, 25 I. & N. Dec. at 308.” Petition Denied.

13-2955 Coyomani-Cielo v. Holder

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

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

Civil
Immigration — cancellation of removal

A notice that does not specify a particular time and date for an alien’s initial hearing nonetheless suffices for purposes of this “stop-time” rule.

“Although the Board acknowledged the possibility of a number of plausible interpretations of the key language, it concluded that the ‘best reading’ is to treat the phrase ‘notice to appear under section 1229(a)’ as referring to the type of document that triggers the stop-time rule, not as requiring perfect compliance with § 1229(a)(1). Camarillo, 25 I. & N. Dec. at 647. A central purpose of the Notice to Appear, the Board explained, is to inform an alien that the government seeks to remove him from the country. Even a notice that does not specify the date or time of a hearing conveys that intent. Id. at 650. The Board also placed some weight on the fact that the entity issuing the Notice to Appear — the Department of Homeland Security — is not responsible for scheduling immigration hearings. The immigration court has that duty, and the Board saw ‘no reason to conclude that Congress would have expected that scheduling delays in the Immigration Court … would affect when an alien’s … physical presence ends.’ Id. Finally, the Board reasonably saw its interpretation as consistent with the stop-time rule’s basic purpose: to prevent aliens from delaying their immigration proceedings to become eligible for relief from removal. Id. at 649–50; see S. Rep. No. 104–249, at 15 (1996); H. R. Rep. No. 104–469(I), at 122 (1996); Guamanrrigra, 670 F.3d at 410. We have no trouble concluding, as our colleagues in the Fourth Circuit did, Urbina, 745 F.3d at 740, that the Board’s interpretation is ‘based on a permissible construction of the statute’ to which we should defer. See Chevron, 467 U.S. at 843.”

Petition Denied.

14-1176 Wang v. Holder

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

INSURANCE

Wisconsin Court of Appeals

Civil
Insurance — homeowners policies — valued policy law

After their home was damaged by a fire, Cole and Ashley Behrndt sued Austin Mutual Insurance Company, alleging they were entitled to the face value of their homeowners insurance policy because their property was a total loss under the valued policy law, Wis. Stat. § 632.05(2). The circuit court granted summary judgment in favor of Austin Mutual. On appeal, the Behrndts argue Austin Mutual is not entitled to summary judgment because their house was a total loss and because Austin Mutual should be equitably estopped from arguing their property was not a total loss. We conclude summary judgment was properly granted in favor of Austin Mutual. This opinion will not be published.

2013AP2596 Behrndt v. Austin Mutual Insurance Company

Dist III, Barron County, Bitney, J., Per Curiam

Attorneys: For Appellant: Whitley, Jason W., Amery; For Respondent: Krall, Tony R., Minneapolis

Wisconsin Supreme Court

Civil
Insurance — automobile policies — duty to defend

An automobile insurer is obliged to defend and indemnify an alleged tortfeasor when the tortfeasor is a permissive user of the insured vehicle and the plaintiff-injured victim is the named insured.

“Our case law demonstrates that our holding today is not novel and has not been viewed as absurd or unreasonable in past cases. Several Wisconsin cases have held that the named insured under an automobile liability insurance policy is not precluded from recovering on the policy when an additional insured, while using the vehicle within the terms of the policy, inflicts injury upon the named insured. Indeed, Wisconsin case law has followed what appears to be the majority rule ‘recognizing that the named insured under an automobile liability insurance policy may recover from the insurer when injured by another insured under the policy.’ ‘In the greater number of cases, the courts … have sustained the right of the named insured … to recover under an automobile liability policy for an injury to … such insured.’ 7A Steven Plitt et al., Couch on Insurance 3d § 110:14 (2013).”

Affirmed.

2012AP858 Blasing v. Zurich American Ins. Co.

Abrahamson, C.J.

Attorneys: For Appellant: Fertl, Jeffrey S., Milwaukee; For Respondent: Pliner, David J., Madison; Isaacson, Chester Anthony, Madison

JUVENILES

Wisconsin Court of Appeals

Civil
Juveniles – TPR — voluntary termination — withdrawal

Ericka L.R. appeals the circuit court’s order terminating her parental rights to Ella M.S. Ericka argues that the circuit court erred in several ways when the court denied her request to withdraw her consent to a voluntary termination of her parental rights. Ericka’s most prominent argument is that the circuit court should have allowed her to withdraw her consent because she showed a “fair and just reason” for withdrawal. Ericka did not, however, frame her argument this way in the circuit court and, therefore, I reject it as forfeited. At the same time, I choose to address the substance of her fair and just reason argument and, as an additional basis for rejecting it, conclude that it is not persuasive. I also reject other arguments Ericka makes and, therefore, I affirm. This opinion will not be published.

2014AP1106 In re the termination of parental rights to Ella M.S.

Dist IV, Green County, Vale, J., Lundsten, J.

Attorneys: For Appellant: Zaleski, Steven, Madison; For Respondent: MacLennan, Angela Marie, Monroe

PROPERTY

Wisconsin Court of Appeals

Civil
Property – condemnation — sovereign immunity

Sovereign immunity bars a property’s declaratory judgment action.

“Lees and Artis-Wergin, on which Aesthetic relies, are both inapposite because the Department of Transportation here consistently asserted its sovereign-immunity defense: in its letter transmitting its application for a writ of assistance, in its timely answer, and in its timely motion to dismiss. See WIS. STAT. RULE 802.06(8)(a) (‘A defense of lack of jurisdiction over the person … is waived only if any of the following conditions is met: … 2. The defense is neither made by motion under this section nor included in a responsive pleading.’) (emphasis added). See also WIS. STAT. RULE 801.06 (‘A court of this state having jurisdiction of the subject matter may … exercise jurisdiction in an action … over any person who appears in the action and waives the defense of lack of jurisdiction over his or her person as provided in s. 802.06(8).’). Thus, assuming without deciding that seeking a writ of assistance before the filing of an answer or the making of a motion asserting a sovereign-immunity defense required a ‘special appearance,’ as Aesthetic in essence argues, the Department’s letter of January 11, 2013, transmitting the application for writ of assistance to the circuit court was certainly that ‘special appearance’ because it asserted, as we have seen, that the Department ‘is not waiving any objections or defenses to Plaintiff’s Complaint, including the defense of sovereign immunity.’ A more clear assertion and preservation of the sovereign-immunity defense is hard to imagine.”

Reversed and Remanded.

Recommended for publication in the official reports.

2013AP2052 Aesthetic and Cosmetic Plastic Surgery Center LLC v. DOT

Dist. I, Milwaukee County, Witkowiak, J., Fine, J.

Attorneys: For Appellant: Harlow, R. Duane, Madison; Beachy, Sara K., Madison; For Respondent: Marcuvitz, Alan, Milwaukee; Roschke, Andrea H., Milwaukee

Wisconsin Supreme Court

Civil
Property — landlord-tenant — privity

A subtenant cannot be liable for breach of contract to a landlord.

“[W]e conclude that Quad/Graphics is not liable to Gagliano because Quad/Graphics was a subtenant of the lessee, not an assignee of the leases. Undisputed evidence shows that New Electronic Printing Systems, the assignee of the original tenants, did not transfer its entire remaining leasehold estate to Quad/Graphics. Because Gagliano and Quad/Graphics did not share privity of estate, it is not an assignee. Therefore, we do not hold Quad/Graphics liable for New Electronic Printing Systems’ alleged breach of contract to which Quad/Graphics was not a party. Accordingly, we reverse the portion of the decision of the court of appeals that reversed the order of the circuit court granting summary judgment in favor of Quad/Graphics and remand to the circuit court for dismissal of all claims against Quad/Graphics.”

Affirmed in part, and Reversed in part.

2012AP122 Anthony Gagliano & Co. Inc. v. Openfirst LLC

Roggensack, J.

Attorneys: For Appellant: Armstrong, Thomas, Milwaukee; Kushner, Beth, Milwaukee; For Respondent: Apfeld, Michael B., Milwaukee; Huitink, Michael D., Milwaukee; Maher, Ann M., Milwaukee; Lawless, Lisa M., Milwaukee

TAX

Wisconsin Court of Appeals

Civil
Tax — property taxes — excessive assessments

The Edward J. and Arvilla Duquaine Trust appeals a judgment dismissing its excessive assessment claim against the City of Algoma. The circuit court determined the City’s 2011 assessments of five properties owned by the Trust were entitled to a presumption of correctness, which the Trust failed to overcome. The Trust asserts it successfully overcame the presumption of correctness by demonstrating that the City’s assessor failed to comply with the relevant statutes and the Wisconsin Property Assessment Manual, and by presenting significant contrary evidence of the properties’ values.

We assume, without deciding, that the Trust overcame the presumption of correctness by showing the City’s assessor failed to comply with the relevant law. Nevertheless, we conclude the Trust ultimately failed to carry its burden of persuasion that the 2011 assessments were excessive. We therefore affirm the judgment dismissing the Trust’s excessive assessment claim. This opinion will not be published.

2013AP2771 Edward J. and Arvilla Duquaine Trust v. City of Algoma

Dist III, Kewaunee County, Mleziva, J., Per Curiam

Attorneys: For Appellant: Marcuvitz, Alan, Milwaukee; For Respondent: Screnock, Michael P., Madison; For Respondent: Madison, Bree A., Appleton

TORTS

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

Civil
Torts – FTCA — medical malpractice — statute of limitations

When a person suspects, or a reasonable person would suspect, that her injury was caused by negligent medical care, claims regarding other doctor-related causes of that injury that share a time and place with the injury’s suspected cause also accrue.

“All claims arising from the same surgery, for example, against surgeon, anesthetist, and nurse, would arise together. However, claims that are distinct in time, or distinct in place, or that relate to a different injury do not accrue solely on that basis. This test is consistent with Goodhand and our other prior FTCA cases and maintains limits on claim accrual without undermining the FTCA’s statute of limitations. To stay consistent with Goodhand, though, the differences in time and place may be quite small, as in the time between the Goodhand baby’s birth and the surgical repair of the perineal tear.” Reversed and Remanded.

13-2854 E.Y. v. U.S.

Appeal from the United States District Court for the Northern District of Illinois, Gettleman, J., Hamilton, J.

Wisconsin Supreme Court

Civil
Torts — premises liability — absent witness instruction

It was error to give the absent witness instruction where there was no reason to believe that the witnesses’ testimony would be more favorable to one party than the other.

“We affirm the decision of the court of appeals. The circuit court’s decision to give the absent witness instruction was an erroneous exercise of discretion because there was no evidence in the record that the absent witnesses, former Speedway employees who had been on duty at the time of the accident, were material and within Speedway’s control or that it was more natural for Speedway, rather than Kochanski, to call them. Furthermore, Speedway’s decision not to call the former employees did not reasonably lead to the conclusion that it was unwilling to allow the jury to have ‘the full truth.’ Ballard v. Lumbermens Mut. Cas. Co., 33 Wis. 2d 601, 616, 148 N.W.2d 65 (1967). And finally, the instruction was prejudicial because without drawing a negative inference about Speedway’s snow removal methods and processes from Speedway’s decision not to call the former employees, the jury would not have found that Kochanski satisfied the notice element of his safe-place claim that was necessary to liability. Accordingly, we affirm the court of appeals’ decision and remand for a new trial.”

Affirmed.

2011AP1956 Kochanski v. Speedway SuperAmerica LLC

Roggensack, J.

Attorneys: For Appellant: Piper, Donald H., Milwaukee; O’Neil, Patrick A., Milwaukee; For Respondent: Anderson, Ross A., Milwaukee; Starrett, Jay R., Indianapolis, Ind.; Keesecker, Erin Marie, Milwaukee

TRUSTS AND ESTATES

Wisconsin Court of Appeals

Civil
Trusts and Estates — fraudulent concealment

Jon Soto, pro se, appeals an order denying his motion for relief from an order admitting his mother’s will into probate. Soto claims he was deprived of his right to appear at the hearing on admission of the will and the order should be voided because the will’s admission was based on “fraudulent concealment.” We reject Soto’s arguments and affirm the order. This opinion will not be published.

2013AP1681 In re the estate of Donna M. Soto

Dist III, Trempealeau County, Damon, J., Per Curiam

Attorneys: For Appellant: Soto, Jon, pro se; For Respondent: Robertson, Alan S., Blair

CRIMINAL OPINIONS

Wisconsin Court of Appeals

Criminal
Agriculture — holding orders — collateral attacks

A defendant charged with violating a holding order cannot collaterally attack the validity of the order.

“Hershberger also asserts that review of a holding order would be ‘substantively illogical’ because it would only weigh the quality of ‘the investigator’s subjective assessment’ without the benefit of the testing that takes place after the holding order is in place, which is the only way to confirm or refute the investigator’s assessment. However, as the State points out, a holding order may be issued only when the investigator has ‘reasonable cause to believe’ that food needs to be held until it is tested, and that ‘reasonable cause to believe’ is an inherently objective standard that may be examined based on the facts that were before the investigator at the time of issuing the holding order. See Lane v. Sharp Packaging Sys., Inc., 2002 WI 28, ¶¶50-51, 251 Wis. 2d 68, 640 N.W.2d 788 (‘“Reasonable cause is more than suspicion but less than a preponderance of evidence,”’ which may be established based on facts in the record.) (quoted source omitted). Hershberger does not explain why, under this objective, fact-based standard, he could not have tested the factual basis for the investigator’s observations through one of the options for review summarized above.”

Affirmed.

Recommended for publication in the official reports.

2013AP1502-CR State v. Hershberger

Dist. IV, Sauk County, Reynolds, J., Kloppenburg, J.

Attorneys: For Appellant: Rich, Elizabeth G., Plymouth; Reynolds, Glenn C., Madison; Salberg, Amy Marie, West Bend; For Respondent: Balistreri, Thomas J., Madison; Calkins, Kevin R., Baraboo; Ferris, Phillip D., Madison; Defort, Eric D., Madison

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

Criminal
Illegal reentry — collateral attacks

Even if a defendant charged with illegal reentry did not have an attorney when he was removed, he cannot collaterally attack his removal order as fundamentally unfair.

“8 C.F.R. § 1003.25(b) contains no requirement that an alien must be represented by counsel or that a stipulated removal order must be orally explained to him. Instead, the statute merely requires the IJ to ‘determine that the alien’s waiver is voluntary, knowing, and intelligent’ if the alien is unrepresented by counsel. The IJ did so here, stating, ‘I find, based upon my review of the record in this matter, that [Baptist] has entered into this stipulation voluntarily, knowingly and intelligently.’”

“Baptist bore the burden of showing that his 1998 removal was fundamentally unfair, but he failed to put forth enough evidence to convince us that the stipulated removal order he signed was invalid. Therefore, we find no due process violation.”

Affirmed.

14-1273 U.S. v. Baptist

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

Wisconsin Supreme Court

Criminal
NGI — harmless error

Even if it was error to direct a verdict on the NGI phase of a trial, the error is subject to harmless error review.

“First, as a general rule, a defendant is not required to present expert testimony to prove the elements of his NGI defense. State v. Leach, 124 Wis. 2d 648, 666, 370 N.W.2d 240 (1985). Ordinarily, the defendant will offer expert testimony. He may also offer testimony by lay witnesses as well as his own testimony. As a practical matter, a defendant should offer evidence to supplement his own testimony because a defendant who testifies in the responsibility phase of his trial without corroboration is likely to be viewed as self-serving inasmuch as the purpose of his defense is to escape responsibility for his already established criminal conduct. In only an exceptional case with extraordinary facts may a defendant carry his burden in the responsibility phase of a criminal trial by relying solely on his own testimony.”

“Second, a defendant is competent to testify as to his mental condition in the responsibility phase of a criminal trial. However, a lay defendant does not have an unlimited, categorical right to give opinion testimony on the issue of mental disease or defect.”

“Third, a court should normally permit a defendant to offer his evidence in the responsibility phase of a trial before the court rules on his NGI defense. By allowing the defendant an opportunity to offer all his evidence, the court ensures that any dismissal1 or directed verdict is informed by full consideration of the defendant’s position, conforms to Wis. Stat. § 805.14(1) and (3) or (4) (2009-10), and reduces the procedural grounds for appeal. There will not be many cases where the defendant’s position is so bereft of merit that the court can conclude that there is no jury question as a matter of law before the defendant presents his evidence.”

“Fourth, we conclude here that the evidence to support the defendant’s NGI defense was insufficient as a matter of law, so that any errors by the circuit court in refusing to allow the trial to proceed to the responsibility phase were harmless. We conclude that no reasonable jury would have determined that the defendant had a mental disease or defect that caused him to lack substantial capacity to understand the wrongfulness of his conduct or to conform his conduct to the requirements of law.”

Affirmed.

2010AP1639-CR State v. Magett

Prosser, J.

Attorneys: For Appellant: Hinkel, Andrew, Madison; For Respondent: Pozorski, Anthony J., Lancaster; Pray, Eileen W., Madison

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

Criminal
Supervised Release — revocation

Although it was error to admit hearsay at the defendant’s revocation hearing, the error was harmless.

“[E]ven where a proper balancing of the interests would weigh in favor of excluding hearsay, its erroneous admission may still be harmless for the alternate reason that the violation of supervised release would have been found even without the hearsay evidence. See, e.g., United States v. Johnson, 927 F.2d 999, 1003–04 (7th Cir. 1991) (holding that admission of hearsay was harmless where strong circumstantial evidence established the same facts). That is the case here because, considering only the non-hearsay evidence submitted to the district court, the result would have been the same. ‘To revoke a defendant’s supervised release under 18 U.S.C. § 3583(e)(3), the district court must find by a preponderance of the evidence that the defendant violated the terms of his supervised release.’ United States v. Goad, 44 F.3d 580, 585 (7th Cir. 1995). Detective Nosich observed Simmons glance at him with a nervous look of dread while getting in Mosley’s car only to get back out right away. Immediately thereafter, Detective Nosich caught Mosley with crack cocaine, but no paraphernalia for its use, and $300 to $400 in cash. Detective Nosich then quickly caught up with Simmons and found that she was carrying material in a grocery bag that his experience told him was used for filters in a crack pipe. His experience proved right when Simmons surrendered four little yellow baggies of what appeared to be crack cocaine and a crack pipe. Detective Nosich testified to these facts and his opinion based on years of experience that what he had witnessed was a drug deal. But the district court did not have to rely on that alone. In the PSR from Mosley’s previous criminal conviction, we see that he used little yellow baggies to hold the crack cocaine that he sold — exactly what Simmons surrendered to police from her purse only about an hour after getting in and out of the car with him. See Fed. R. Evid. 404(b)(2) (evidence of other crimes admissible to prove identity, i.e., modus operandi). All of this together is strong circumstantial evidence that Mosley dealt crack cocaine to Simmons without any need for recourse to Simmons’s reliable statements. Simmons’s statements just confirmed what the circumstantial evidence had independently made clear. Accordingly, disregarding the hearsay, the government still would have met its burden of proving by a preponderance of the evidence that Mosley distributed cocaine in violation of his conditions of supervised release. Because the result would have been the same without admitting the hearsay, the error was harmless.”

Affirmed.

13-3184 U.S. v. Mosley

Appeal from the United States District Court for the Northern District of Indiana, Moody, J., Manion, J.

CRIMINAL PROCEDURE

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

Criminal
Criminal Procedure — magistrate judges

Acceptance of a felony guilty plea cannot be delegated to a magistrate judge.

“The acceptance of a guilty plea in a felony case is not a described power or duty, so we must interpret the ‘additional duties’ clause of the statute to determine whether the Act permits magistrate judges to discharge that function, even with the consent of the defendant and the government. Based on the statute and the Supreme Court decisions limning the limits of federal magistrates’ authority, we determine that magistrates are not permitted to accept guilty pleas in felony cases and adjudge a defendant guilty. The task of accepting a guilty plea is a task too important to be considered a mere ‘additional duty’ permitted under § 636(b)(3): it is more important than the supervision of a civil or misdemeanor trial, or presiding over voir dire. Because of this importance, the additional duties clause cannot be stretched to reach acceptance of felony guilty pleas, even with a defendant’s consent.” Reversed.

13-1323 U.S. v. Harden

Appeal from the United States District Court for the Southern District of Illinois, Herndon, J., Tinder, J.

Wisconsin Court of Appeals

Criminal
Criminal Procedure — coram nobis

Keith Pophal appeals an order denying his petition for a writ of error coram nobis. Because the petition does not meet the criteria for a writ of coram nobis, we affirm the order. This opinion will not be published.

2013AP798 State v. Pophal

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

Attorneys: For Appellant: Pophal, Keith A., pro se; For Respondent: Dunphy, Donald J., Merrill; Noet, Nancy A., Madison

Wisconsin Court of Appeals

Criminal
Criminal Procedure — plea withdrawal — manifest injustice

Shawn Demtrius Jones appeals from a judgment of conviction, entered upon his guilty plea, on one count of aggravated battery.

Jones also appeals from an order denying his postconviction motion for plea withdrawal. Jones claims he should have been allowed to withdraw his plea to prevent a manifest injustice because his plea was not knowing, intelligent, and voluntary and because the circuit court erred in finding a factual basis for the plea. We reject these arguments and affirm the judgment and order. This opinion shall not be published.

2013AP2053-CR State v. Jones

Dist I, Milwaukee County, Brostrom, Dallet, JJ., Per Curiam

Attorneys: For Appellant: Mullison, Helen M., Mequon; For Respondent: Loebel, Karen A., Milwaukee; Lloyd, Katherine Desmond, Madison

Wisconsin Court of Appeals

Criminal
Criminal Procedure — Confrontation Clause — DNA evidence

Christopher Roalson appeals a judgment of conviction for first-degree intentional homicide and burglary of a dwelling with a dangerous weapon. Roalson argues his constitutional confrontation right was violated when the State failed to produce the DNA analyst who analyzed the evidence, as opposed to an analyst who reviewed the original analysis. We reject Roalson’s argument and affirm. This opinion will not be published.

2013AP1693-CR State v. Roalson

Dist III, Sawyer County, Kutz, J., Per Curiam

Attorneys: For Appellant: Provis, Timothy A., Port Washington; For Respondent: Whelan, Maura F.J., Madison; Poquette, Bruce R., Hayward

Wisconsin Court of Appeals

Criminal
Criminal Procedure — new trials — newly discovered evidence

Lisimba Liteef Love appeals an order of the circuit court denying his motion for a new trial in his criminal case. He claims that he has newly discovered evidence warranting relief. The circuit court concluded that his evidence was not credible. We affirm. This opinion will not be published.

2013AP1450 State v. Love

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

Attorneys: For Appellant: Meyeroff, Robert N., Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Sanders, Michael C., Madison

Wisconsin Court of Appeals

Criminal
Criminal Procedure — new trials

Daniel Bolstad was convicted, following a jury trial, of the attempted second-degree sexual assault of M.S., an adult female. Bolstad seeks a new trial in the interest of justice, arguing that false testimony presented at his trial prevented the real controversy from being fully tried. Under the exceptional circumstances of this case, we agree with Bolstad. We express no opinion on whether M.S. truthfully testified that a man attempted to sexually assault her or whether she accurately identified Bolstad as that man. However, it is now undisputed by the State that all three key witnesses against Bolstad, including M.S., gave false testimony during trial. It is also clear that the prosecutor unknowingly, but extensively, relied on that mutually corroborating testimony to persuade the jury that Bolstad’s contrary testimony was unworthy of belief. Because we conclude that the real controversy was not fully tried, we reverse and remand. Not recommended for publication in the official reports.

2013AP2139 State v. Bolstad

Dist IV, La Crosse County, Gonzalez, J., Lundsten, J.

Attorneys: For Appellant: Lichstein, Byron C., Madison; For Respondent: Noet, Nancy A., Madison; Gruenke, Tim, La Crosse

Wisconsin Court of Appeals

Criminal
Criminal Procedure — plea withdrawal

Hatem M. Shata appeals a judgment of conviction, following a guilty plea, of possession with intent to deliver between 1,000 and 2,500 grams of THC as a party to a crime. Shata also appeals the circuit court’s denial of his postconviction motion to withdraw his guilty plea. We reverse and remand. Not recommended for publication in the official reports.

2013AP1437-CR State v. Shata

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

Attorneys: For Appellant: Best, John A., West Bend; Borkowicz, Brian, West Bend; For Respondent: Loebel, Karen A., Milwaukee; Noet, Nancy A., Madison

Wisconsin Court of Appeals

Criminal
Criminal Procedure — forfeiture

George Mason appeals judgments convicting him of strangulation, false imprisonment and fourth-degree sexual assault. Mason entered no contest pleas to these charges after the court denied his motions to dismiss for violation of his constitutional right to a speedy trial and for disclosure of the victim’s medical and mental health records. Mason challenges those pretrial rulings in this appeal. Because we conclude Mason’s no-contest pleas forfeited his right to review of those issues, we affirm the judgments. This opinion will not be published.

2013AP1249-CR State v. Mason

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

Attorneys: For Appellant: Dorn Cutler, Priscilla R., Osceola; Jensen, Russell J., St. Paul, Minn.; For Respondent: Prutzman, Amanda Ellen, Stillwater, Minn.

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

Criminal
Criminal Procedure — waiver

Where a defendant waived his right to appeal, he cannot contend his attorney was ineffective at sentencing.

“Nothing we have said should be construed as implying that the district court in fact did err by classifying Smith as a career offender or that Smith’s counsel was ineffective in not objecting to the classification. The briefing suggests that the issue may not be as straightforward as Smith’s appellate counsel portrays it. Our point is that however clear a sentencing error the defendant believes the district court to have committed, or however obvious an error he believes his counsel committed in not objecting to the court’s sentencing decision, when the defendant has knowingly and voluntarily waived his right to appeal such errors, the obviousness of the error does not support overlooking the waiver.”

“Smith knowingly and voluntarily waived his appellate rights, including his right on appeal to contend that his counsel below was ineffective as to any matter other than the waiver and his negotiation of it. He is, consequently, barred from pursuing the instant appeal.”

Dismissed.

12-3350 U.S. v. Smith

Appeal from the United States District Court for the Northern District of Indiana, Van Bokkelen, J., Rovner, J.

Wisconsin Supreme Court

Criminal
Criminal Procedure — right to testify — harmless error

Harmless error review applies to a circuit court’s denial of a defendant’s right to testify.

“[A]ccepting Nelson’s test would divorce the doctrine of harmless error from its purpose. Harmless error developed from the criticism that ‘[r]eversal for error, regardless of its effect on the judgment, encourages litigants to abuse the judicial process and bestirs the public to ridicule it.’ Neder, 527 U.S. at 18 (quoting R. Traynor, The Riddle of Harmless Error 50 (1970)). Its application does not ‘reflect[] a denigration of the constitutional rights involved.’ Rose v. Clark, 478 U.S. 570, 577 (1986). Rather, it ‘strikes the appropriate balance between the judicial system’s interest in obtaining reliable results and the system’s competing interest in having litigation end at some point.’ Momon, 18 S.W.3d at 167. In other words, it furthers ‘the principle that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence.’ Id. at 165 (quoting Van Arsdall, 475 U.S. at 681). As such, it makes sense to define the structural/trial error dichotomy by an error’s capacity for assessment, rather than the nature or importance of the right the error affected.”

Affirmed.

2012AP2140-CR State v. Nelson

Roggensack, J.

Attorneys: For Appellant: Velasquez, Michelle L., Madison; For Respondent: King, Gary M., Eau Claire; O’Neil, Aaron R., Madison

EVIDENCE

Wisconsin Court of Appeals

Criminal
Evidence — other acts — motive

Johnny Maldonado appeals a judgment of conviction entered after a jury found him guilty of one count of first-degree intentional homicide and one count of attempted first-degree intentional homicide, both by use of a dangerous weapon and as a party to a crime. He contends that the circuit court erred by admitting evidence of other acts under Wis. Stat. § 904.04(2) (2011-12). Because we conclude that the evidence was relevant to prove motive, and because the evidence was not unfairly prejudicial, we affirm. This opinion will not be published.

2013AP1480-CR State v. Maldonado

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

Attorneys: For Appellant: Backes, Michael J., Shorewood; For Respondent: Loebel, Karen A., Milwaukee; Weber, Gregory M., Madison; Johnson-Karp, Gabe, Madison

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

Criminal
Evidence — hearsay

Where the defendant pressured his daughter not to testify against him, hearsay evidence of her prior statements was properly admitted.

“The record easily supports the court’s conclusion that Jonassen successfully procured E.J.’s unavailability by incessant pretrial manipulation. As we have recounted, Jonassen worked tirelessly for seven months to persuade E.J. to recant. His tactics ranged from pleas for sympathy to bribes. He bombarded E.J. with phone calls, letters, and messages delivered through several family members. All this effort was in clear violation of a court order and directed at a young woman who was susceptible to his manipulation: According to Alice Jonassen’s testimony at the hearing, E.J. had long been subjected to abuse by her father. The evidence overwhelmingly supports the judge’s conclusion.”

Affirmed.

13-1410 U.S. v. Jonassen

Appeal from the United States District Court for the Northern District of Indiana, Moody, J., Sykes, J.

OWI

Wisconsin Supreme Court

Criminal
Motor Vehicles — tail lamps

Wis. Stat. sec. 347.13(1) does not require every single light bulb in a tail lamp to be lit.

“In this case, the only basis that the State presented for the stop of Brown’s vehicle was the unlit bulb in his tail lamp. However, there was no evidence that his tail lamp was not visible from 500 feet to the rear of the car. The officers testified that only one of the bulbs on the back of Brown’s vehicle was unlit. Because having one unlit bulb on the back of a vehicle does not on its own violate the statutory requirements for tail lamps, the State has failed to show that the officers had probable cause to believe that a traffic violation had occurred.”

Affirmed.

2011AP2907-CR State v. Brown

Bradley, J.

Attorneys: For Appellant: Schieber, Hannah Blair, Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; O’Neil, Aaron R., Madison

Wisconsin Court of Appeals

Criminal
Motor Vehicles – OWI — reasonable suspicion

Penny Rosendahl appeals from a judgment of conviction for operating a motor vehicle while intoxicated. Rosendahl moved to suppress, arguing that the evidence was insufficient to justify the stop. The circuit court denied the motion to suppress, concluding that the deputy had reasonable suspicion to stop Rosendahl’s vehicle. We agree and affirm Rosendahl’s subsequent conviction. This opinion will not be published.

2014AP349-CR State v. Rosendahl

Dist II, Winnebago County, Gritton, J., Neubauer, P.J.

Attorneys: For Appellant: Luaders, Earl J., III, New London; For Respondent: Weber, Gregory M., Madison; Prekop, Anthony Steven, Oshkosh

Wisconsin Supreme Court

Criminal
Motor Vehicles – OWI — mandatory minimums

Under sec. 346.65(2)(am)6, a sentencing court must impose at least a three-year minimum initial confinement for seventh, eighth, or ninth offense drunken driving.

“We conclude that Wis. Stat. § 346.65(2)(am)6. requires sentencing courts to impose a bifurcated sentence with at least three years of initial confinement for a seventh, eighth, or ninth OWI offense. In reaching this conclusion, we note that although the statutory history, context, structure, and contextually manifest purposes of § 346.65(2)(am)6. suggest that it imposes a mandatory minimum period of initial confinement, the statute is ambiguous. Well-informed people may reasonably disagree as to whether § 346.65(2)(am)6. requires a court to impose a bifurcated sentence or whether probation is permitted and a bifurcated sentence is merely an option. The legislative history resolves the ambiguity and contains several clear statements that § 346.65(2)(am)6. requires courts to impose a bifurcated sentence with a mandatory minimum period of initial confinement. Therefore, we reverse the court of appeals.”

Reversed.

2011AP2868-CR State v. Williams

Prosser, J.

Attorneys: For Appellant: Grunder, Steven D., Madison; For Respondent: Cary, Daniel D., Sparta; Whelan, Maura F.J., Madison

SEARCH AND SEIZURE

Wisconsin Court of Appeals

Criminal
Search and Seizure — probable cause — marijuana odor

Justin R. Luecke appeals from a judgment convicting him of possession of tetrahydrocannabinols, second or subsequent offense. Luecke pleaded guilty after the court denied his motion to suppress, in which he argued that the warrantless search of his vehicle was unlawful. We affirm. This opinion will not be published.

2013AP2554-CR State v. Luecke

Dist II, Sheboygan County, Sutkiewicz, J., Per Curiam

Attorneys: For Appellant: Walsh, Adam, Madison; For Respondent: Wellman, Sally L., Madison; DeCecco, Joseph R., Sheboygan

Wisconsin Court of Appeals

Criminal
Search and Seizure — search warrants — scope; consent

After the denial of his motion to suppress evidence, Dennis Petrie was convicted upon his no-contest pleas to two counts of burglary and one count each of theft and criminal damage to property. He appeals the judgments. We affirm because we conclude the evidence supporting the charges against him was seized and admitted pursuant to valid warrants and a broad but voluntary consent. This opinion will not be published.

2013AP1966-CR State v. Petrie

Dist II, Sheboygan County, Van Akkeren, J., Per Curiam

Attorneys: For Appellant: Hahn, Richard, Sheboygan; For Respondent: DeCecco, Joseph R., Sheboygan; Lloyd, Katherine Desmond, Madison

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

Criminal
Search and Seizure — reasonable suspicion

Officers investigating a report of shots being fired had reasonable suspicion to stop the defendant’s car, which matched the car identified with the shooting.

“All told, the circumstances here — the dangerousness of the crime, the short lapse of time between the dispatches and the stop, the stop’s proximity to the reported shots, the car’s color, and the light traffic late at night — provided ample justification for stopping Burgess’s car. In such a situation, it is reasonable for police to act quickly lest they lose the only opportunity they may have to solve a recent violent crime or to interrupt an advancing one. After all, reasonable, articulable, particularized suspicion is not a matter of certainty, and recent reports of large caliber gunshots fired from a black car in a densely populated urban area added up to enough to permit a stop of this car to allow for further investigation.”

Affirmed.

13-3571 U.S. v. Burgess

Appeal from the United States District Court for the Northern District of Illinois, Chang, J., Tinder, J.

SENTENCING

Wisconsin Court of Appeals

Criminal
Sentencing – modification — new factors

Parnell T. Graham, pro se, appeals an order denying his motion for sentence modification. He contends that the presumptive mandatory release statute, which permits the Department of Corrections to confine him after he has served two-thirds of his sentences, constitutes a new factor. We conclude that Graham has not shown a basis for relief, and we affirm the order of the circuit court. This opinion will not be published.

2013AP2075 State v. Graham

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

Attorneys: For Appellant: Graham, Parnell T., pro se; For Respondent: Balistreri, Thomas J., Madison; Loebel, Karen A., Milwaukee

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

Criminal
Sentencing — restitution

It was not an abuse of discretion to impose full restitution against a co-defendant despite inability to pay the full amount.

“Moeser maintains that the court should have considered his ‘disproportionately small causal contribution to the loss’ and held him responsible only for the $23,048 stemming from the fifteenth draw. However, the record shows that the court did consider Moeser’s contributions to the scheme and found them significant. Rejecting ‘Moeser’s attempt to distance himself from the actions of his co-conspirators,’ the court reiterated its analysis regarding Moeser’s membership in the conspiracy and his actions in furtherance of it. Having found that Moeser ‘fully contributed to the loss of the bank and to the losses of the unpaid subcontractors,’ the court decided against letting him off the hook under § 3664(h). Based on our earlier analysis, we find no abuse of discretion in that decision.”

Affirmed.

13-3718 U.S. v. Moeser

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

Wisconsin Court of Appeals

Criminal
Sentencing — amendment of judgment

Craig Meier appeals an order of the circuit court denying his postconviction motion to commute two imposed and stayed sentences, pursuant to Wis. Stat. § 973.13, that Meier argues are excessive. Meier argues that the court unlawfully imposed two sentences in jail, both of which conflict with the rule that jail sentences cannot exceed one year. I conclude that the court’s oral pronouncement of the sentences was ambiguous on the topic of jail time, the written judgment failed to clarify that ambiguity, and the full record demonstrates that the court intended to impose prison, and not jail, sentences. Therefore, the court properly denied the motion and corrected the judgment against Meier to reflect bifurcated imposed and stayed prison sentences. Accordingly, I affirm. This opinion will not be published.

2013AP2863-CR State v. Meier

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

Attorneys: For Appellant: Ehmann, Joseph N., Madison; For Respondent: Weber, Gregory M., Madison; Stephan, Corey C., Madison

Wisconsin Court of Appeals

Criminal
Sentencing — new factors

Maximilliano Mejia, pro se, appeals an order denying his postconviction motion. He argues: (1) that he should be resentenced based on a “new factor,” a previous amendment to Wis. Stat. § 302.11(1g) (2011-12); (2) that the circuit court should have told him about the change to § 302.11(1g) before he entered his plea; (3) that the circuit court misused its sentencing discretion because it did not adequately explain its decision; (4) that his sentence was unduly harsh; and (5) that his sentence should be reduced to allow him to be deported to Mexico to live with a gravely ill family member. We affirm. This opinion will not be published.

2013AP1253-CR State v. Mejia

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

Attorneys: For Appellant: Mejia, Maximilliano, pro se; For Respondent: Loebel, Karen A., Milwaukee; Pray, Eileen W., Madison

SEXUALLY VIOLENT PERSONS

Wisconsin Supreme Court

Criminal
Sexually Violent Persons — dismissal

A petition filed under Chapter 980 cannot be invalidated, even though the conviction recited in the petition is later reversed.

“As illustrated by Carpenter and Virlee, any number of conceivable circumstances may arise after a Chapter 980 petition has been filed that relate to its underlying allegations. Under Spaeth’s reasoning, if such circumstances arise after the individual has been released from custody, the State would be unable to pursue commitment of the individual even though it complied with all the statutory requirements in Chapter 980. In other words, if a later change in circumstances could invalidate a petition that was otherwise valid at the time of filing, the State would be at risk of losing its ability to commit a sexually violent person through no fault of its own, and even though the State met all the statutory requirements to proceed to commitment. Such an outcome would be contrary to the primary purpose of Chapter 980, which is ‘to treat sexually violent persons and to protect society from the dangers posed by those persons.’ State v. West, 2011 WI 83, ¶27, 336 Wis. 2d 578, 800 N.W.2d 929; see also Kalal, 271 Wis. 2d 633, ¶46 (We must interpret statutes ‘reasonably, to avoid absurd or unreasonable results’).”

Reversed and Remanded.

2012AP2170 State v. Spaeth

Gableman, J.

Attorneys: For Appellant: Weinstein, Warren D., Madison; Gossett, Christian A., Oshkosh; For Respondent: Fite, Shelley, Madison

Wisconsin Court of Appeals

Criminal
Sexually Violent Persons – discharge — supervised release

Thomas Bush appeals a decision and order denying petitions for discharge and supervised release of a sexually violent person committed under Wis. Stat. Ch. 980, as well as the denial of a postdisposition motion. We affirm. This opinion will not be published.

2013AP2448 In re the commitment of Thomas H. Bush: State v. Bush

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

Attorneys: For Appellant: Schertz, Dennis, Hudson; For Respondent: King, Gary M., Eau Claire