Weekly Case Digests — Sept. 2-5, 2014

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Wisconsin Law Journal’s Case Digests, Sept. 2-5, 2014

CIVIL OPINIONS

Wisconsin Court of Appeals

Civil
Natural Resources — contested case hearings

In order to obtain a contested case hearing, a petition must allege a material factual dispute.

“WISCONSIN STAT. § 227.42(1) does not explicitly state whether a party seeking a contested case hearing must identify a dispute of material fact related to each substantive issue raised in the party’s petition, or whether a single factual dispute related to one of the issues entitles the party to a contested case hearing on every issue. The statute merely states that the petitioner ‘shall have the right’ to a contested case hearing if, among other things, ‘[t]here is a dispute of material fact.’ WIS. STAT. § 227.42(1)(d). Thus, at first blush, the plain language of the statute appears amenable to both Haase-Hardie’s interpretation and the interpretation advanced by the DNR and Preferred Sands.”

“However, closer examination shows that Haase-Hardie’s interpretation of the statute is unreasonable because it produces absurd results. See Kalal, 271 Wis. 2d 633, ¶46 (statutes must be interpreted reasonably, to avoid absurd results). To illustrate, the permits at issue in this case are over fifty pages long and contain dozens of provisions. The administrative record leading up to the permits’ issuance is nearly 1400 pages long. Under these circumstances, the number of potential areas of disagreement between the DNR, the permit applicant, and the public is enormous. If Haase-Hardie’s interpretation of WIS. STAT. § 227.42(1) were correct, a petitioner would be entitled to a contested case hearing on every one of those potential disagreements, whether legal or factual, simply because he or she was able to identify a single dispute of material fact regarding one of them. We agree with the DNR and Preferred Sands that this result is absurd and would place an unreasonable burden on administrative agencies. Further, it would make no sense to require the DNR to hold contested, evidentiary hearings on purely legal issues that do not require the presentation of evidence. Consequently, the only reasonable interpretation of § 227.42(1) is the one advanced by the DNR and Preferred Sands — namely, that a petitioner is entitled to a contested case hearing only on those specific issues which involve disputes of material fact. Accordingly, the statute is not ambiguous. See West, 336 Wis. 2d 578, ¶54 (statute is ambiguous if language gives rise to more than one reasonable interpretation).”

Affirmed.

Recommended for publication in the official reports.

2013AP2827 Haase-Hardie v. DNR

Dist. III, Trempeleau County, Damon, J., Stark, J.

Attorneys: For Appellant: Williams, Sarah Catherine, Madison; Parra, James E., Madison; For Respondent: Whelan, Maura F.J., Madison; Harbeck, William H., Milwaukee; Strifling, David A., Milwaukee

CIVIL PROCEDURE

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

Civil
Civil Procedure — sanctions

Dismissal and revocation of in forma pauperis privileges are appropriate sanctions for perjury.

“Although we have said enough to explain why the district court’s judgment must be affirmed, we do not think that the dismissal of a doomed suit (having failed to exhaust his intra-prison remedies during the time Wisconsin allowed, Rivera was bound to lose) is a sufficient response to perjury. The judicial system cannot function if the only consequence of lying is the loss of a suit that would have had no chance from the outset, had the truth been told. That’s effectively no sanction at all. If perjury pays benefits when it escapes detection, but has no cost when detected, there will be far too much perjury and the accuracy of judicial decisions will be degraded.”

Affirmed.

14-1458 Rivera v. Drake

Appeal from the United States District Court for the Eastern District of Wisconsin, Griesbach, J., Easterbrook, J.

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

Civil
Civil Procedure — arbitration

Where a prisoner filed a frivolous lawsuit and then moved to stay the proceedings pending arbitration, sanctions are appropriate.

“As the district court correctly concluded, there is no plausible basis in the record to support Neal’s assertion that the Bureau of Prisons is bound to arbitrate his petition. The Bureau denies the existence of any arbitration agreement with Neal, and the documents Neal submitted are obvious fabrications. Moreover, the Federal Arbitration Act governs only maritime contracts and contracts involving interstate commerce. See 9 U.S.C. § 1–2; Southland Corp. v. Keating, 465 U.S. 1, 10–11 (1984); Gore v. Alltell Commc’ns, LLC, 666 F.3d 1027, 1032 (7th Cir. 2012). The documents on which Neal relies (setting aside their fraudulent nature) involve neither kind of contract. Because there was no arbitrable claim, the district court did not abuse its discretion in denying the motion to stay and refusing to compel arbitration. See French v. Wachovia Bank, 574 F.3d 830, 834–36 (7th Cir. 2009).”

Affirmed.

14-1165 Neal v. Lariva

Appeal from the United States District Court for the Southern District of Indiana, Magnus-Stinson, J., Wood, J.

Wisconsin Court of Appeals

Civil
Civil Procedure – small claims

Latasha Lang appeals pro se from an amended judgment of the circuit court dismissing her small claims action following a court trial and awarding costs against her. The issues Lang appears to be raising on appeal are titled “escrow,” “water bill,” and “retaliation.” She asks that we “honor the $10,000.00 [that she requests in her small claims complaint] for water bill, escrow, and pain and suffering.” Because Lang fails to adequately develop any issues or legal arguments, we affirm the judgment.

Lang initiated this action in small claims court seeking money related to “water bill,” “escrow,” and pain and suffering, following her removal from her housing. A court trial was eventually held on her complaint, resulting in dismissal of the action and an awarding of costs against Lang in the amount of $363.04, including a $300 attorney fee. This opinion will not be published.

2014AP596 Lang v. Griffin

Dist II, Kenosha County, Bastianelli, J., Gundrum, J.

Attorneys: For Appellant: Lang, Latasha, pro se; For Respondent: Diersen, Ronald L., Kenosha

ENVIRONMENTAL LAW

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

Civil
Environmental Law — Clean Air Act

Pre-1975 emissions remain in a state’s baseline while emissions from post-1975 construction count toward a state’s pollutant allowance.

“EPA’s is a sensible interpretation as well. The Council’s approach could produce two undesirable outcomes. Under one understanding of the Council’s view, the 1975 baseline would keep changing as old plants become ‘new.’ Every time a company modified a pre-1975 plant, all of the emissions that formerly were part of the baseline would now have to be counted against a state’s allowance. This would cause no end of trouble during the permitting process for all plants (and not only the pre-1975 plant with modifications), because the region’s baseline would be changing. Unless what was removed from the baseline were added to the allowance, other businesses could find themselves with no allowance to draw on. The other understanding of the Council’s view involves double counting a ‘new’ source’s emissions. Rather than moving all the pre-1975 emissions from the baseline, a modification could cause the pre-1975 emission to count against the state’s allowance and remain in the baseline. While this sounds strange, it is consistent with the Council’s position. Under either interpretation companies (and state regulators) would be inclined to reject physical or operational changes to pollution sources, even if those changes reduced pollution, lest all pre-1975 emissions count against the state’s allowance. The EPA’s approach avoids that result.”

“EPA presents a reasonable interpretation of an ambiguous statutory provision.”

Petition Denied.

12-3388 Clean Water Action Council of Northeastern Wisconsin Inc. v. EPA

Petition for Review of an Order of the Environmental Protection Agency, Easterbrook, J.

IMMIGRATION

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

Civil
Immigration – admissibility — terrorist designation

Where an alien seeking admission failed to exhaust his administrative remedies to challenge his designation as a terrorist, his petition for review must be denied.

“The exhaustion requirement is not just an empty formality; it exists in part to prevent error by appellate courts. We’ve identified the more nuanced knowledge question here in order to flag it for future cases, but we might have missed something. In any event, the issue should be addressed by the BIA in the first instance. Had Khan made this argument to the Board, it could have ‘appl[ied] its specialized knowledge and experience to the matter.’ Id. (internal quotation marks omitted). On the present record, labeling Khan a terrorist to prevent him from remaining in the United States with his American citizen wife is troubling, but we cannot ignore the exhaustion requirement, especially not for an argument raised for the first time on a petition for review from a motion to reconsider, where our deference to the BIA is at its peak.”

Petitions Denied.

13-2106 & 13-3385 Khan v. Holder

Petitions for Review of Decisions of the Board of Immigration Appeals, Sykes, J.

JUVENILES

Wisconsin Court of Appeals

Civil
Juveniles — student searches

Chase T. appeals the circuit court’s denial of his motion to suppress evidence obtained from him by an assistant principal, in the presence of a school liaison police officer, at the public junior high school that Chase T. attended. This occurred after a student tipster linked Chase T. to the smell of marijuana smoke in a school bathroom during a class period. The search consisted of the assistant principal’s request that Chase T. empty his pockets.

Chase T. argues that the circuit court erred in dismissing his motion to suppress because the search was not based on reasonable grounds at its inception and also because it was excessive in scope. I conclude that the assistant principal had reasonable grounds to suspect that Chase T. had engaged in or was engaging in illegal activity, evidence of which might be discovered in the search. I also conclude that the scope of the search was reasonably related to the objective of the search and not excessively intrusive. Affirmed. This opinion will not be published.

2014AP260 In the interest of Chase A.T.

Dist IV, Portage County, Flugaur, J., Blanchard, P.J.

Attorneys: For Appellant: Hirsch, Eileen A., Madison; For Respondent: Weber, Gregory M., Madison; Isherwood, Veronica Fay, Stevens Point

Wisconsin Court of Appeals

Civil
Juveniles – testimony

Eugene P. appeals the orders finding his sons Taron P. and Jaden P. in need of protection or services pursuant to Wis. Stat. § 48.13(3), (3m), and (10), and the order finding his son Travis P. in need of protection or services pursuant to § 48.13(3m) and (10). On appeal, Eugene P. contends that the trial court erred in allowing testimony from Dr. Lynn Sheets, who opined, among other things, that the kinds of injuries suffered by Jaden P. after Eugene P. hit him on the back with a belt were consistent with child abuse. This court disagrees and affirms. This opinion will not be published.

2014AP361, 2014AP362, 2014AP363 In the interest of Taron P. et al: State v. Eugene P.

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

Attorneys: For Appellant: Jensen, Jeffrey W., Milwaukee; For Respondent: Pipp, William, Milwaukee

LABOR AND EMPLOYMENT

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

Civil
Employment — public employment — freedom of speech

When a public employee speaks in his capacity as a union official, his speech is not within the purview of his official duties.

“It is clear from the record that Olendzki functioned outside of Garcetti strictures and spoke as a citizen in two other forums, the HSC meetings and the labor management meetings. Regular attendance at these meetings was a condition of his appointment as a union official and these forums were sanctioned by the union as a venue to allow Olendzki to voice concerns on behalf of its members. Therefore, his statements during these meetings may be entitled to First Amendment protection. Having identified the instances when Olendzki spoke as a citizen, we then turn to whether his speech during the union meetings addressed a matter of public concern.”

Affirmed.

12-1340 Olendzki v. Rossi

Appeal from the United States District Court for the Central District of Illinois, Mills, J., Bauer, J.

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

Civil
Labor — right-to-work laws

Right to work laws are not preempted by federal law or the U.S. Constitution.

“We noted at the outset that this legislation prompted vigorous debate, both in the general public and the Indiana Statehouse. But the legislative history and context of the Taft-Hartley Act make clear that the controversy is one that ought to be addressed and resolved at the level of legislative politics, not in the courts. The statutory question posed is whether Indiana’s new law is preempted by federal labor law, or threatens the Union’s First Amendment rights. The answer is an emphatic no. Right-to-Work laws like Indiana’s have existed since before the passage of the Taft-Hartley Act and the inclusion of Section 14(b) of the NLRA. Congress specifically reserved to the states the power to write and enforce laws of this nature, in accordance with individual states’ needs and wisdom. It is not our province to wrest this authority, which has been intact and undisturbed for over sixty-five years, from the states and erase the distinction between right-to-work states and non-right-to-work states.”

Affirmed.

13-1264 Sweeney v. Pence

Appeal from the United States District Court for the Northern District of Indiana, Simon, J., Tinder, J.

PROPERTY

Wisconsin Court of Appeals

Civil
Property – special assessments

Yankee Hill Housing Partners appeals the order granting the City of Milwaukee’s motion to dismiss Yankee Hill’s claim to recover special assessments wrongfully imposed by the City from 2005 to 2011. The trial court dismissed Yankee Hill’s claim on the basis that the factors outlined in Nesbitt Farms, LLC v. City of Madison, 2003 WI App 122, 265 Wis. 2d 422, 665 N.W.2d 379, weighed in favor of imposing the Wis. Stat. § 893.80(1d) (2011-12) notice of claim requirement, with which Yankee Hill had failed to comply. Because we conclude that neither § 893.80(1d) nor any statute of limitations bars Yankee Hill’s claim, and because it is undisputed that Yankee Hill is exclusively a residential property that was charged business improvement district (“BID”) special assessments contrary to Wis. Stat. § 66.1109(5)(a) during the years in question, we reverse the order dismissing the case in the City’s favor and instead grant summary judgment to Yankee Hill. Not recommended for publication in the official reports.

2014AP183 Yankee Hill Housing Partners v. City of Milwaukee

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

Attorneys: For Appellant: McGinnity, Maureen A., Milwaukee; Hatchell, Eric, Madison; For Respondent: Quinn, Christine M., Greendale

CRIMINAL OPINIONS

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

Criminal
Habeas Corpus — ineffective assistance

Where the state court reinstated a prisoner’s appeal rights, it was not unreasonable in refusing to order a different attorney appointed for the prisoner.

“After the court determined that Grau was ineffective for failing to file a no-merit report, it reinstated Miller’s appeal rights and ordered Grau to file a no-merit report. The purpose of the no-merit process is to give Miller the added protection of having the appellate court review his record independently and determine whether meritorious issues exist in order to directly appeal. See Anders v. California, 386 U.S. 738, 744 (1967) (establishing the no-merit process). Miller refused the opportunity for this added protection when he informed the Wisconsin Court of Appeals that he would continue his appeal pro se. Since Miller discharged Grau before he could prepare a no-merit report pursuant to the court’s order, Miller actively refused the benefit of the no-merit process.”

“After Miller discharged his appointed counsel, the court directed him to file either a post-conviction motion or a notice of appeal, providing Miller with yet another opportunity to raise his claim about the validity of his guilty plea. Miller failed to file either, and the time to do so expired. Miller failed to offer a reason that would excuse his failure to comply with the state procedural requirements. Coleman, 501 U.S. at 753.”

“The Wisconsin Court of Appeals’ denial of Miller’s request for new appellate counsel was not clearly contrary to or an unreasonable application of clearly established federal law and his challenge to the validity of his plea is procedurally defaulted.”

Affirmed.

13-1796 Miller v. Smith

Appeal from the United States District Court for the Eastern District of Wisconsin, Clevert, J., Bauer, J.

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

Criminal
Supervised Release — revocation

A witness may testify at a supervised release revocation hearing via video conference.

“There is no similar default rule for witnesses in supervised release revocation hearings. In fact, Rule 32.1(b)(2)(C) expressly allows the court to excuse a witness’s appearance altogether, whether physical or virtual, in the interests of justice, despite the otherwise strong preference for live, in-person testimony. Thompson therefore does not conflict with the interest-of-justice provision or extend to require an in-person appearance of all witnesses in revocation hearings. The district court in this case did exactly what we suggested in Jordan I when it allowed Wilson to testify via video conference. The court committed no error in doing so. The video conference option is permissible for witnesses under Rule 32.1(b)(2) and worked well in this case, as the district court noted on the record.”

Affirmed.

14-2004 U.S. v. Jordan

Appeal from the United States District Court for the Central District of Illinois, Myerscough, J., Hamilton, J.

CRIMINAL PROCEDURE

Wisconsin Court of Appeals

Criminal
Criminal Procedure – appeals — pro se litigants

In these consolidated appeals, James Grant appeals a circuit court order denying his postconviction motions for plea withdrawal and other relief. Grant was convicted of two counts of retail theft and one count of disorderly conduct, all as a repeater. For the reasons explained below, this court rejects Grant’s challenge to the order, and affirms. This opinion will not be published.

2013AP1829-CR, 2013AP1830-CR State v. Grant

Dist IV, Dane County, Ehlke, J., Lundsten, J.

Attorneys: For Appellant: Grant, James E., pro se; For Respondent: Rusch, Shelly J., Madison; Weber, Gregory M., Madison

Wisconsin Court of Appeals

Criminal
Criminal Procedure — statute of limitations — theft

Under sec. 939.74(2)(b), the one-year discovery rule is triggered only by actual discovery of the crime, not when the victim should with the exercise of reasonable diligence discovered the loss.

“If the legislature intended the one-year extension period to be triggered not only if a loss is discovered but also if it ‘should have been discovered,’ one would expect the legislature at some point would have written such language into the statute. See, e.g., WIS. STAT. § 893.55(1m) (requiring commencement of an action against a health care provider ‘within the later of: (a) Three years from the date of the injury, or (b) One year from the date the injury was discovered or, in the exercise of reasonable diligence should have been discovered,’ but not later than five years following the act or omission (emphasis added)); see also WIS. STAT. §§ 402.725(2), 411.506(2), 893.51(2), 893.80(1p). The legislature, however, has not done so, and ‘[w]e should not read into the statute language that the legislature did not put in.’ State v. Matasek, 2014 WI 27, ¶20, 353 Wis. 2d 601, 846 N.W.2d 811 (quoting Brauneis v. LIRC, 2000 WI 69, ¶27, 236 Wis. 2d 27, 612 N.W.2d 635). Thus, we decline to rewrite WIS. STAT. § 939.74(2)(b) to add words or requirements which the legislature itself did not choose to include.”

Affirmed.

Recommended for publication in the official reports.

2013AP2491-CR State v. Simmelink

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

Attorneys: For Appellant: Eippert, Christopher M., Sheboygan; For Respondent: Balistreri, Thomas J., Madison; DeCecco, Joseph R.. Sheboygan

Wisconsin Court of Appeals

Criminal
Criminal Procedure — involuntary commitment

Rebecca G. appeals an involuntary commitment order which imposed a six-month involuntary commitment. Rebecca argues that there was insufficient evidence to show that she was “dangerous” under Wis. Stat. § 51.20(1)(a)2. Because the commitment order has expired and Rebecca is no longer being held under the order, this issue is moot. Accordingly, we dismiss Rebecca’s appeal. This opinion will not be published.

2014AP359 In re the commitment of Rebecca G.: Milwaukee County v. Rebecca G.

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

Attorneys: For Appellant: Schieber, Hannah Blair, Milwaukee; For Respondent: Polan, Alan, Milwaukee

Wisconsin Court of Appeals

Criminal
Criminal Procedure – judgment of conviction – bail jumping

Deshun Latrell Bannister appeals a judgment of conviction, following a jury trial, of one count of substantial battery and two counts of bail jumping. Bannister also appeals the order denying his postconviction motion. We affirm. Not recommended for publication in the official reports.

2013AP2679-CR State v. Bannister

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

Attorneys: For Appellant: Ward, Cheryl A., West Allis; For Respondent: Loebel, Karen A., Milwaukee; O’Neil, Aaron R., Madison

OWI

Wisconsin Court of Appeals

Criminal
Motor Vehicles – OWI — probable cause

Deborah Salzwedel appeals the judgment of conviction for third-offense operating a motor vehicle with a prohibited alcohol concentration in violation of Wis. Stat. § 346.63(1)(b). Salzwedel argues that the circuit court erred in denying her motion to suppress evidence because: (1) the officer did not have probable cause for the stop and (2) this was not an investigatory stop supported by reasonable suspicion. I conclude that the circuit court did not err in finding that there was probable cause for the stop and, therefore, I affirm the denial of the motion to suppress evidence. This opinion will not be published.

2014AP301-CR State v. Salzwedel

Dist IV, Juneau County, Curran, J., Kloppenburg, J.

Attorneys: For Appellant: Buffum, Dylan John Cyrus, Madison; For Respondent: Solovey, Michael T., Mauston; Weber, Gregory M., Madison; Burdon, Clifford C., Mauston

Wisconsin Court of Appeals

Criminal
Criminal Procedure – ineffective assistance

Philip Lange appeals a judgment of conviction for repeated sexual assault of a child. Lange argues his trial counsel rendered ineffective assistance by failing to object to several of the prosecutor’s statements during opening and closing arguments. Lange alternatively seeks a new trial in the interest of justice. We reject Lange’s arguments, and affirm. This opinion will not be published.

2013AP1957-CR State v. Lange

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

Attorneys: For Appellant: Bauer, Erica L., Appleton; For Respondent: Lasee, David L., Green Bay; Johnson-Karp, Gabe, Madison

SENTENCING

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

Criminal
Sentencing — RICO

Absent a jury finding of a fact that increases the maximum sentence, a RICO sentence in excess of 20 years is invalid.

“Recall, any fact that increases the statutory maximum sentence must be proved to a jury beyond a reasonable doubt. Apprendi, 530 U.S. at 490. In this case, the jury found Anaya guilty of conspiring to participate in racketeering, but it also found the government did not prove beyond a reasonable doubt that Anaya’s racketeering activities involved Campos’ murder, the distribution of more than five kilograms of cocaine, or the distribution of 1,000 kilograms of marijuana. Without the jury’s finding of a fact (murder) that increases the maximum sentence for racketeering beyond twenty years, see, e.g., 18 U.S.C. § 1959(a)(1), the district court’s statement that the term of Anaya’s racketeering conviction is 360 months is clearly an error.”

“Accordingly, we remand Anaya’s case to allow the district court to correct Anaya’s Judgment to reflect that his racketeering conviction can only be for a maximum of twenty years. We affirm all other aspects of his sentence.”

Affirmed in part, and Remanded.

13-2169, 13-2189, 13-2892 & 13-3177 U.S. v. Gonzalez

Appeals from the United States District Court for the Northern District of Indiana, Lozano, J., Bauer, J.