Weekly Case Digests — Feb. 16-20, 2015

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CIVIL

Wisconsin Court of Appeals
Civil Commitment – extension

APPEAL from an order of the circuit court for Milwaukee County: KAREN E. CHRISTENSON, Judge. Affirmed.

DISTRICT I; Milwaukee; KAREN E. CHRISTENSON, NEUBAUER, P.J.

2014AP002008-FT Milwaukee County v. Aaron B.

Wisconsin Court of Appeals
Constitutional Law – Education

Act 21 is unconstitutional insofar as it gives the governor authority over regulations enacted by the Superintendent of Public Instruction.

“In the course of its analysis, the Thompson court considered ‘the first law passed by the legislature [in 1848] setting forth the duties of the SPI.’ Id. at 693.  The petitioner in Thompson, then Governor Thompson, argued that this 1848 law ‘shows that the SPI’s duties in 1848 were “exhortatory,” or directed towards encouraging education through, for example, public speaking or visits to schools, but not actual administration.’ Id. at 694.  The Thompson court rejected this argument, pointing out that the 1848 law stated:  ‘The superintendent shall have a general supervision over public instruction in this state.’ Id.  The Thompson court went on to explain that many of the duties given to the SPI in the 1848 law were clearly supervisory or administrative:  ‘[t]he SPI was required to apportion school funds between townships, to propose regulations for making reports and conducting proceedings under the act, and to adjudicate controversies arising under the school lands.’ Id. at 694-95 (emphasis added).  Thus, one of the three listed examples of ‘clearly [] supervisory’ power highlighted by the Thompson court was rulemaking.  Id.”

Affirmed.

Recommended for publication in the official reports.

2013AP416 Coyne v. Walker

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

U.S. Court of Appeals For the Seventh Circuit
Immigration – Asylum – Zimbabwe

Where the BIA did not adequately consider whether more corroborating information was reasonably available, it was error to find that an asylum claimant failed to show past persecution.

“Evidence of country conditions ‘cannot substitute for an individualized determination of an asylum or withholding claim,’ Zheng v. Gonzales, 409 F.3d 804, 811 (7th Cir. 2005). Sibanda, as we have explained, could not reasonably have presented more corroborating evidence than she did. That fact means that there can be no avoiding a careful assessment of her credibility. The IJ did only half of the job: he found that the bride-price was paid, but he bypassed the question whether her account of the duties imposed by bride-price and the attacks she suffered was credible. The Board assumed Sibanda’s credibility on all issues, but then it unreasonably demanded corroboration. The IJ must determine whether Sibanda’s account of her duties under local law and custom to Major Sibanda is accurate and whether her testimony about his attacks is credible. If he finds her credible on these matters, that is enough to show past persecution.”

Petition Granted.

14-2157 Sibanda v. Holder

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

Wisconsin Supreme Court
Professional Responsibility – Suspension

Where attorney John F. Koenig accepted payment for work performed for his firm’s clients, without notifying the firm of the payments, a two-year suspension is appropriate.

“We adopt the referee’s findings of fact and conclusions of law that Attorney Koenig violated the supreme court rules as alleged in Count One of the OLR’s complaint.  We also agree with the referee that a two-year suspension of Attorney Koenig’s license is an appropriate sanction for the misconduct at issue here.  A two-year suspension is consistent with the level of discipline imposed in somewhat similar cases.  See, e.g., In re Disciplinary Proceedings Against Cotter, 171 Wis. 2d 373, 491 N.W.2d 475 (1992).”

2014AP1523-D OLR v. Koenig

Per Curiam.

Wisconsin Supreme Court
Professional Responsibility

Where attorney James E. Hammis failed to report a misdemeanor conviction, and wrongfully withheld unearned fees, a 90-day suspension is appropriate.

“With respect to the appropriate level of discipline, after careful review of the matter, we conclude that a 90-day suspension is appropriate. This is not the first time that Attorney Hammis has been found to have committed professional misconduct. Some of the behavior in this case mirrors the misconduct that resulted in his four-month license suspension back in 2011. Although Attorney Hammis argues that the referee was biased against him, the referee found Attorney Hammis’s version of events to be incredible. Credibility determinations are particularly within the province of the trier of fact, and we find no basis to second-guess them.”

2012AP818-D OLR v. Hammis

Per curiam.

Wisconsin Court of Appeals
Property – gifts

APPEAL from a judgment of the circuit court for Oneida County:  MICHAEL H. BLOOM, Judge.  Affirmed.

DISTRICT III; Oneida; MICHAEL H. BLOOM, Blanchard, P.J., Higginbotham,  Kloppenburg, JJ.

2013AP002416 Estate of Liela Read v. Sheila R. Kronberg

Wisconsin Supreme Court
Property – Foreclosure

When the court determines that a property is abandoned, Wis. Stat. § 846.102 authorizes the circuit court to order a mortgagee to bring the property to sale after the redemption period.

“When considered in light of its neighboring statutes, the context of Wis. Stat. § 846.102 suggests that the legislature intended a prompt sale.  Wisconsin Stat. § 846.101, addressing 20-acre properties, provides that if the mortgagee waives judgment of deficiency and permits the mortgagor to remain in the property until it is sold, the court shall enter a judgment that the property be sold after the expiration of six months from the date of the judgment.  Wisconsin Stat. § 846.103, addressing foreclosures of commercial properties and multifamily residences, provides that the mortgagee waives judgment of deficiency and permits the mortgagor to remain in the property until it is sold, the court shall enter a judgment that the property be sold after the expiration of three months from the date of the judgment.  Wis. Stat. § 846.103(2).”

Affirmed.

2013AP544 The Bank of New York Mellon v. Carson

Bradley, J.

U.S. Court of Appeals For the Seventh Circuit
Public Health – Disability benefits

Where the ALJ ignored objective evidence of pain, the denial of disability benefits must be vacated.

“Not realizing that pain can be real and intense yet its cause not be discernible by medical tests or examinations, the administrative law judge repeatedly intoned the distinction between ‘subjective’ and ‘objective’ evidence of pain, the former being testimony of the applicant. What makes the error in this case well-nigh incomprehensible is that there was ‘objective’ evidence of pain—plenty of objective evidence: the damaged ulnar nerve, loss of forearm muscle, and the pain caused by the corrective elbow surgery, all on his right arm (and all the result of his cubital tunnel syndrome), and the severe back pains caused by his scoliosis and quite possibly by the Harrington rods as well, which are no longer an approved method of treating scoliosis because they can cause a painful back condition—which could be the source of Adaire’s back pains—called “flatback syndrome.” Virgin-ia Spine Institute, ‘Flat Back Syndrome,’ www.spinemd.com/symptoms-conditions/flat-back-syndrome (visited Feb. 15, 2015).

Reversed and Remanded.

14-1116 Adaire v. Colvin

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

CRIMINAL

Wisconsin Court of Appeals
Criminal Procedure – plea withdrawal – breach of plea agreement

APPEAL from a judgment of the circuit court for Racine County:  ALLAN B. TORHORST, Judge.  Affirmed.

DISTRICT II; Racine; ALLAN B. TORHORST, Brown, C.J., Reilly, Gundrum, JJ.

2014AP001392-CR State v. Johnny E. Miller, Jr.

Wisconsin Court of Appeals
Criminal procedure – issue preclusion

APPEAL from an order of the circuit court for Kenosha County:  MICHAEL S. WILK, Judge.  Reversed.

DISTRICT II; Kenosha; MICHAEL S. WILK, Neubauer, P.J., Reilly, Gundrum, JJ.

2014AP000713-CR State v. Donaven M. Jackson

Wisconsin Court of Appeals
Criminal Procedure – ineffective assistance

APPEAL from an order of the circuit court for Marinette County:  JAMES A. MORRISON, Judge.  Affirmed.

DISTRICT III; Marinette; JAMES A. MORRISON, Hoover, P.J., Stark, Hruz, JJ

2014AP000512 State v. Scott John Kline

Wisconsin Court of Appeals
Criminal Procedure – ex post facto clause – GPS monitoring

APPEAL from orders of the circuit court for Eau Claire County:  JON M. THEISEN, Judge.  Affirmed.

DISTRICT III; Eau Claire; JON M. THEISEN, Hoover, P.J, Hruz, Higginbotham, JJ.

2013AP002868 James J. Kaufman v. Kellie Blechinger

Wisconsin Court of Appeals
Criminal Procedure – successive appeals

APPEAL from an order of the circuit court for Eau Claire County:  MICHAEL A. SCHUMACHER, Judge.  Affirmed.

DISTRICT III; Eau Claire; MICHAEL A. SCHUMACHER, Hoover, P.J., Hruz, Higginbotham, JJ.

2013AP000463 State v. Bradley S. Gallentine

U.S. Court of Appeals For the Seventh Circuit
Evidence – Supervised release – hearsay

Where the district court allowed statements into evidence on the theory that they were excited utterances, but did not explicitly balance the interests of the parties under Federal Rule of Criminal Procedure 32.1(b)(2)(C), the revocation of extended supervision must be reversed.

“In Jordan, however, we stated that ‘reliability cannot be the beginning and the end of the “interest of justice” analysis under Rule 32.1(b)(2)(C), and we do not mean to imply that finding the hearsay reliable would alone suffice to support its admission under the rule.’ Id. Furthermore, Jordan created the bright-line rule in this circuit that a district court must explicitly balance the defendant’s interests in confrontation against the government’s interests in not producing the rele-vant witness. Id. Therefore, the government’s position that the district court implicitly considered these factors still runs counter to the clear mandate of Jordan.”

Reversed and Remanded.

14-2866 U.S. v. Moslavac

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

Wisconsin Court of Appeals
Motor Vehicles – OWI – reasonable suspicion – probable cause

APPEALS from judgments of the circuit court for Monroe County:  J. DAVID RICE, Judge.  Affirmed.

DISTRICT IV; Monroe; J. DAVID RICE, SHERMAN, J.

2014AP000818 State v. Frederick C. Thomas, III

U.S. Court of Appeals For the Seventh Circuit
Sentencing – Obstruction of justice enhancement

A criminal defendant who, by pretending to be mentally incompetent in an effort to delay or derail his prosecution, is guilty of an obstruction of justice within the meaning of section 3C1.1 of the federal sentencing guidelines.

“The defendant’s second argument, which has greater merit, is that if exaggerating one’s mental deficits at a competence hearing is deemed obstruction of justice (provided it causes, or is found to have been an attempt to cause, delay or other disruption of the criminal proceeding), defendants and their lawyers will be reluctant to request such a hearing even if they have solid grounds for the request. They will be afraid that the judge, if he decides that the defendant is competent to stand trial after all, will decide that he requested the hearing only to delay or derail the criminal proceeding. But that is just to say that when in doubt about the bona fides of the defendant’s behavior at the competence hearing the judge should not find an obstruction of justice. In this case there was no basis for serious doubt that the defendant was deliberately exaggerating his symptoms and by doing so trying to disrupt or at least delay the criminal proceeding, and that he succeeded in delaying his trial by months (though success is not a requirement for imposing an enhancement for obstruction of justice—an attempt will do as well).”

Affirmed.

13-3610 U.S. v. Wilbourn

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