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Weekly Case Digests — Feb. 29-March 4, 2016

By: WISCONSIN LAW JOURNAL STAFF//March 4, 2016//

Weekly Case Digests — Feb. 29-March 4, 2016

By: WISCONSIN LAW JOURNAL STAFF//March 4, 2016//

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7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Contemporary Cars, Inc. v. NLRB

Case No.: 14-3723; 15-1187

Officials: Before MANION, ROVNER, and HAMILTON, Circuit Judges.

Focus: Interference with Right to Unionize – Unfair Labor Practices – Petition for REview

Court enforces order finding employer engaging in unfair labor practices from actions taken against union employees.

“The Board also reasonably found that the dealership’s failure to respond to the union’s information request concerning job classifications, wage rates, and related items was a § 8(a)(5) bargaining violation. Substantial evidence indicates that the union requested this information in April 2009. An employer’s duty to bargain includes a duty to provide the un- ion with information “needed by the bargaining representative for the proper performance of its duties.” NLRB v. Acme Industrial Co., 385 U.S. 432, 435–36 (1967). The dealership’s refusal to provide the information violated § 8(a)(5) of the Act.”

Petition to Review Denied

Order Enforced

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7th Circuit Court of Appeals

Case Name: Lamar Blake v. United States of America

Case No.: 15-1239

Officials: POSNER, KANNE, and HAMILTON, Circuit Judges.

Focus: Ineffective Assistance of Counsel – Court Error

Court finding that appellant failed to ask attorney to file an appeal was not clearly erroneous. I

“Despite Blake’s best efforts to argue that some of the district court’s reasoning was not based on the evidence, the district court here chose between two competing, plausible versions of events. The only evidence, other than the jail visitors’ logs, was testimony by Blake and his attorney. Counsel said that Blake never asked him to file an appeal, and the district court believed his testimony over Blake’s. This find- ing is clearly supported. The court credited counsel because, for example, his testimony that Blake was happy with his sentence aligned with the court’s reading of the sentencing transcript and was logical because Blake faced the possibility of a far longer sentence. Indeed, the district court said at sentencing that “[i]t would be easy for me to sentence [Blake] to the maximum of 235 or go over that.” Furthermore, Blake failed to present any evidence corroborating his version of events, such as an affidavit or testimony from the family members he claimed unsuccessfully tried to contact his attorney, even though his brother was present at the evidentiary hearing. Cf. Furry v. United States, 712 F.3d 988, 994 (7th Cir. 2013); Morales v. Johnson, 659 F.3d 588, 602 (7th Cir. 2011).”

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Jaime Orozco-Sanchez

Case No.: 15-1252

Officials: WOOD, Chief Judge, and BAUER and WILLIAMS, Circuit Judges.

Focus: Sentencing

District court erred by imposing written conditions of supervised release not orally pronounced from the bench.

“Here, remand for full resentencing is appropriate because the district court failed to orally pronounce certain conditions of supervised release. A sentencing court must orally pronounce its sentence. See 18 U.S.C. § 3553(c) (“The court, at the time of sentencing, shall state in open court the reason for its imposition of the particular sentence”); United States v. Sanford, 806 F.3d 954, 960 (7th Cir. 2015) (“only punishments stated orally, in open court, at sentencing are valid”). Because supervised release is part of the sentence, the court must also orally pronounce both its overall imposition and its conditions. See 18 U.S.C. § 3583(a) (“The court, in imposing a sentence to a term of imprisonment … may include as part of the sentence that the defendant be placed on a term of supervised release” (emphasis added)); United States v. Thompson, 777 F.3d 368, 373 (7th Cir. 2015) (18 U.S.C. § 3583 “dispel[s] … [a]ny doubt that conditions of supervised release are a part of the sentence”).”

Vacated and Remanded for Resentencing

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7th Circuit Court of Appeals

Case Name: Jose Hernandez v. Thomas Dart

Case No.: 15-2493

Officials: WOOD, Chief Judge, and BAUER and HAMILTON, Circuit Judges.

Focus: Exhaustion of Remedies

Appellant did exhaust remedies for claims stemming from treatment will in custody of Cook County DOC. Case Remanded to hear case on the merits.

“Hernandez complied with this procedure. He filed his grievance on August 3, 2013. In the grievance, he alleged that the incident in question occurred on August 2, 2013. His filing was well within the 15‐day period outlined in the CCDOC grievance process. Further, he received the Cermak response to his complaint on September 11, 2013, and filed his appeal on September 17, 2013. This was also well within the allotted period. Defendants have not produced evidence that contradicts these facts and have not carried their burden of demonstrating failure to exhaust. Hernandez exhausted his administrative remedies and the district court erred in granting summary judgment for Defendants on the deliberate indifference claim.”

Reversed and Remanded

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7th Circuit Court of Appeals

Case Name: United States of America v. Jones Wheeler

Case No.: 15-2785

Officials: RIPPLE, WILLIAMS, and HAMILTON, Circuit Judges.

Focus: Frivolous Appeal

Appointed counsel allowed to withdraw

“Counsel does not mention two standard conditions of supervised release that we have criticized as vague. First, we have said that language requiring Wheeler to notify his probation officer of any “change . . . in employment” leaves un- clear whether this condition applies only to “changing employers or also includes changing from one position to an- other for the same employer at the same workplace.” United States v. Thompson, 777 F.3d 368, 379 (7th Cir. 2015). Second, the condition prohibiting Wheeler from leaving the judicial district without permission “improperly imposes strict liability” because it lacks a scienter requirement. United States v. Kappes, 782 F.3d 828, 849–50 (7th Cir. 2015). That being said, we have no reason to believe that Wheeler wishes to challenge these conditions, as counsel has not identified them as potential issues and Wheeler has not responded to the Anders brief. See United States v. Bryant, 754 F.3d 443, 447 (7th Cir. 2014). If Wheeler later perceives these conditions to be problematic after he begins serving the term of supervised release, he will be free to seek modification under 18 U.S.C. § 3583(e)(2). United States v. Neal, 810 F.3d 512, 518 (7th Cir. 2016).”

Motion to Withdraw Granted

Appeal Dismissed

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7th Circuit Court of Appeals

Case Name: Ryan Alensworth v. Carolyn W. Colvin

Case No.: 15-2053

Officials: WOOD, Chief Judge, and BAUER and POSNER, Circuit Judges.

Focus: Denial of disability benefits

Appellant denial of disability benefits reversed where district court relied on unreliable statistics. Court erred in not finding the plaintiff credible.

“Apart from the fact that the vocational expert did not ex- plain where he got the job numbers (2700, 2250, 1800) from— we doubt that they are reliable statistics but will not press the issue—we have no idea how many jobs exist in the regional economy that the plaintiff’s manifold disabilities would not prevent him from doing. But the question is academic, since even if his physical disabilities were properly accounted for, he does not appear to be capable of any full- time gainful employment, given his hypersomnia.”

Reversed and Remanded

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7th Circuit Court of Appeals

Case Name: Kirk Homoky v. Jeremy Ogden

Case No.: 14-3788

Officials: POSNER, EASTERBROOK, and WILLIAMS, Circuit Judges.

Focus: Right Against Self Incrimination

Officer fails to sign release form to submit to certain tests after put under investigation for officer misconduct. Officer is subsequently place on admin leave, and properly so. No constitutional violations existed on behalf of the Department.

“Homoky’s claim fails because no constitutional violation occurred. Homoky never took the voice stress test, a fact he does not dispute, so he produced no coerced statements that the government might use against him in a subsequent criminal proceeding. So there was no violation of the Fourteenth Amendment’s prohibition against the use of coerced statements”

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Yihao Pu

Case No.: 15-1180

Officials: BAUER, KANNE, and WILLIAMS, Circuit Judges.

Focus: Trade Secrets – Restitution

Appellant removal of proprietary information from employer was does no warrant restitution ordered by the court.

“We do not doubt that the cost of development of the trade secrets was an easy figure to use when making the intended loss calculation. The guidelines suggest that the cost of development is the metric to use to estimate loss in a trade secrets case. See U.S.S.G. § 2B1.1 n.3(C)(ii). But the real question is whether the government proved by a preponderance of the evidence that the cost of development of the trade secrets was the correct loss figure. See United States v. Berheide, 421 F.3d 538, 541 (7th Cir. 2005). To answer this, we must determine whether the record supports a finding that it was more likely than not that Pu intended to cause a loss to the victims that equaled the cost of development. See id. We conclude that it does not. There is no direct evidence of how much of a loss Pu intended Company A and Citadel to suffer. There is also no evidence from which we can infer how much of a loss Pu in- tended the victims to suffer. The evidence shows that the cost of development was$12million. By finding a $12 million intended loss amount, the district court determined that the government proved by a preponderance of the evidence that Pu intended to cause the victims to suffer a $12 million loss. However, evidence of Pu’s intent to cause the victims any loss is not in the record. Because the record does not support the district court’s conclusion, we find it to be clearly erroneous.”

Vacated and Remanded

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7th Circuit Court of Appeals

Case Name: United States of America v. Christopher Seals

Case No.: 15-1372

Officials: EASTERBROOK and HAMILTON, Circuit Judges, and PALLMEYER, District Judge

Focus: Court Error – Sentencing

Court ears in application of sentence enhancements

“In this case, the district court made no findings that would support the conclusion that the offenses of conviction—all of which stem from the robbery on February 14, 20135—were connected to the behavior underlying the two enhancements applied here (i.e., the possession of a firearm and the reckless flight).  Application of the enhancements without such a finding constitutes error.”

Conviction Affirmed

Sentence Vacated and Remanded

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7th Circuit Court of Appeals

Case Name: DJL Farm LLC v. EPA

Case No.: 15-2245; 15-2246; 15-2247; 15-2248

Officials: BAUER, FLAUM, and SYKES, Circuit Judges.

Focus: Construction Permits

Permits for construction that were the crux of this appeal expired during litigation – petitioners no longer have an interest in challenging them so petition is dismissed.

“We conclude that FutureGen and the EPA have met this burden. They first explain that the Environmental Review Board’s order in this case is not a separately reviewable action, and instead is a prerequisite to seeking judicial review of the permits. See 40 C.F.R. § 124.19(l)(2). They also explain that an expired permit cannot be transferred, reissued, or used as a basis for issuing new permits in the same location. Only active permits can be transferred under EPA regulations, see id. § 144.38(a), and a permit can be reissued only after an active permit is revoked, see id. § 144.39(b), which is inapplicable to an already‐expired permit.”

Dismissed as Moot

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7th Circuit Court of Appeals

Case Name: United States of America v. LeShawn Stanbridge

Case No.: 15-2686

Officials: WOOD, Chief Judge, and BAUER and POSNER, Circuit Judges.

Focus: Motion to Suppress

Court erred in relying on misunderstanding of Illinois law to deny motion to suppress.

“We agree with Stanbridge that § 11-804 is not ambiguous, and does not require a driver to signal for 100 feet before pulling alongside a curb to park. The minimum signaling distances required by subsection (b) apply only when a driver intends “to turn right or left” (emphasis added). And no other subsection includes an explicit command to signal be- fore moving toward a curb to park. As the district court not- ed, “[i]f the Illinois General Assembly had meant for the signal requirement to apply to a motorist pulling to a stop at the curb under § 11-804(d), it knew how to do so explicitly, as § 11-804(d) clearly requires the use of a turn signal before ‘start[ing] from a parallel parked position’.” This is a sensible reading of the statute, and the government has not given us reason to think that the legislature intended to require drivers seeking parking in congested urban areas to continuously signal for 100 feet before determining that a possible parking space is not only large enough, but also free of fire hydrants, yellow curbs, and other parking restrictions.”

Vacated and Remanded

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7th Circuit Court of Appeals

Case Name: United States of America v. Charles Robinson, IV

Case No.: 15-2091

Officials: POSNER, EASTERBROOK, and SYKES, Circuit Judges.

Focus: Sentencing

Judge improperly makes sentences consecutive when amending sentence of appellant to fit with new guidelines.

“What Amendment 782 would not have allowed the judge to do would have been to reconsider any feature of the original sentence that he had imposed other than its length, such as whether the defendant qualified as a career offender. United States v. Wren, 706 F.3d 861 (7th Cir. 2013). But the change in the applicable guideline provision empowered the judge to invoke U.S.S.G. § 5G1.2(c) and make the three sentences concurrent rather than consecutive. Unfortunately, but not irrevocably, the defendant’s lawyer had misinformed the judge that the three sentences had to run consecutively. In fact they could be made concurrent; and if so, since the longest sentence was 30 years, that would be the defendant’s total sentence.”

Reversed and Remanded

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7th Circuit Court of Appeals

Case Name: Ankush Sehgal v. Loretta Lynch

Case No.: 15-2334

Officials: BAUER, POSNER, and HAMILTON, Circuit Judges.

Focus: Immigration – Marriage Fraud

Petition for permanent residence status denied for appellant who attempted to gain similar status previously by fraudulent means.

“Accordingly, the Seghals have not shown sufficient reason to discount either Mohit’s own confession of marriage fraud or Miller’s written corroboration. They have not shown that the agency decision was made without substantial sup- porting evidence.”

Affirmed

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7th Circuit Court of Appeals

Case Name: Kathy Start v. Carolyn

Case No.: 15-2352

Officials: MANION, KANNE, and WILLIAMS, Circuit Judges.

Focus: Disability Insurance Benefits

Court applies faulty credibility analysis in appellant disability benefits proceeding.

“We agree with Stark that the ALJ’s finding that Stark’s own testimony supports the residual-functional-capacity assessment is patently wrong. The ALJ inexplicably failed to consider objective evidence that buttressed Stark’s testimony of disabling pain. This evidence included the nature of Stark’s diagnoses of radiculopathy and degenerative disc disease, evidence of prescriptions for strong pain medications, epidural injections, multiple surgeries, and physical therapy. The ALJ cursorily mentioned Stark’s treatments, but she did not consider how the treatments relieved Stark’s pain. See 20 C.F.R. § 404.1529(c)(3)(v), (vi) (factors relevant to severity of pain include treatment for pain relief and other measures to relieve pain, like lying flat on the back). Nor did the ALJ consider the conclusion of Stark’s treating physician that she always will have neuropathic leg pain, which could account for her complaints of pain, or her degenerative disc disease, which could account for her pain progressively worsening. Even if the ALJ thought that the objective evidence was insufficient, pain alone can be disabling, Carradine v. Barnhart, 360 F.3d 751, 753 (7th Cir. 2004), and Stark testified that she is limited by her pain. Testimony of severe pain cannot be disregarded simply because it is not supported by objective medical evidence. See Hall v. Colvin, 778 F.3d 688, 691 (7th Cir. 2015); Pierce v. Colvin, 739 F.3d 1046, 1049–50 (7th Cir. 2014) (“Pain can be severe to the point of being disabling even though no physical cause can be identified …”).”

Reversed and Remanded

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WI Court of Appeals Digests 

WI Court of Appeals – District III

Case Name: Pierce County v. C.S.

Case No.: 2015AP1464; 2015AP1463

Officials: STARK, J.

Focus: Termination of Parental Rights

C. S. appeals orders terminating her parental rights to her sons, D. S. and K. S., and an order denying her postdisposition motion. C. S. argues her first trial attorney was ineffective by failing to object to the circuit court’s determination that C. S. had waived her right to request a jury trial, and her second trial attorney was ineffective by failing to prepare adequately for the continued dispositional hearing. C. S. also argues the circuit court erred by denying her second trial attorney’s request for a continuance; by admitting D. S.’s therapist’s testimony regarding C.S.’s relationships with the children; by concluding the termination of C. S.’s parental rights was in the children’s best interest; and by relying on inaccurate information and information outside the record when denying C. S.’s postdisposition motion. We reject these arguments and affirm.

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WI Court of Appeals – District IV

Case Name: Waushara Co. DHS v. V.L.

Case No.: 2016AP23

Officials: BLANCHARD, J.

Focus: Termination of Parental Rights

V.L. appeals an order of the circuit court terminating her parental rights to R.E.L. V.L. contends that the circuit court improperly exercised its discretion in deciding that termination of her parental rights is in the best interests of R.E.L. because the court failed to give proper consideration to certain of the statutory factors that a court is required to consider in making this decision. For the reasons discussed below, I conclude that the circuit court properly exercised its discretion and accordingly affirm.

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Drew A. Heinrich

Case No.: 2015AP1524-CR

Officials: BLANCHARD, J.

Focus: OWI – Motion to Suppress

Drew Heinrich appeals a judgment of conviction for operating a motor vehicle while intoxicated—second offense. Heinrich argues that the court should have suppressed evidence obtained following a traffic stop because the arresting officer did not have reasonable suspicion to conduct the stop. I affirm

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Salvatore L. Slies

Case No.: 2015AP1188-CR

Officials: Kloppenburg, P.J., Lundsten and Sherman, JJ.

Focus: Admittance of Evidence

Salvatore Slies appeals a judgment of conviction for felony bail jumping entered after a jury trial. The bail jumping charge was based on contact Slies had with a person he was prohibited from contacting. He argues that he is entitled to a new trial because the circuit court erroneously admitted as other acts evidence written communications Slies had previously sent to the same person and because in closing arguments the State improperly used the other acts evidence as propensity evidence. We affirm the judgment.

WI Court of Appeals – District IV

Case Name: Kathleen Pozorski v. Anthony J. Pozorski

Case No.: 2015AP1062

Officials: Kloppenburg, P.J., Lundsten, and Blanchard, JJ.

Focus: Divorce

Anthony Pozorski appeals a judgment of divorce, challenging the maintenance award and the property division. Anthony argues that the circuit court erroneously exercised its discretion in: (1)awarding Kathleen Pozorski “significant maintenance,” even though she did not sacrifice her own career for the sake of the family and did not significantly contribute to Anthony’s career or education; (2)failing to give weight, when awarding maintenance, to Anthony’s expressed intention to pay for the future college expenses of Anthony and Kathleen’s minor son; (3) awarding Kathleen certain stocks in the property division that Anthony had purchased with funds that he inherited during the marriage; and (4) requiring Anthony to contribute to a portion of Kathleen’s litigation costs and fees in the divorce proceedings. Anthony also presents a “catch-all” argument that the court made “errors of fact and judgment and thereby treated [Anthony] unfairly.” For the reasons set forth below, we affirm.

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Thomas Warrant Pitts

Case No.: 2015AP1056-CR

Officials: Kloppenburg, P.J., Higginbotham and Blanchard, JJ.

Focus: Sufficiency of Evidence

Thomas Pitts appeals a judgment of conviction for one count of felon in possession of a firearm and one count of possession of property with altered identification marks. Pitts contends that the evidence was insufficient to support the convictions. We conclude that the evidence was sufficient to support the conviction for felon in possession of a firearm, but insufficient to support the conviction for possession of property with altered identification marks. We affirm in part and reverse in part and remand with directions.

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. James D. Green

Case No.: 2015AP560-CR

Officials: Kloppenburg, P.J., Lundsten and Blanchard, JJ.

Focus: Plea Withdrawal

James Green appeals the circuit court’s judgment convicting him, based on his guilty pleas, of two crimes: attempted armed robbery with threat of force, as party to a crime and as a repeater, and possession of a firearm by a felon, as party to a crime. Green also appeals the court’s order denying his postconviction motion for plea withdrawal. As to both the judgment and the postconviction order, Green seeks reversal, arguing that a factual basis for his pleas was lacking. We disagree and affirm.

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Jama I. Jama

Case No.: 2014AP2432-CR

Officials: Kloppenburg, P.J., Lundsten and Higginbotham, JJ.

Focus: Vacated Judgments

The State appeals the circuit court’s order vacating three of five jury verdicts against Jama I. Jama. Following a jury trial, the court set aside a verdict finding Jama guilty of one count of sexual intercourse without consent, in violation of WIS. STAT. § 940.225(3), and two counts of burglary, in violation of WIS. STAT. § 943.10.1 The court let stand guilty verdicts on one count of theft and one count of sexual intercourse with a person who is so intoxicated as to be incapable of giving consent, in violation of § 940.225(2)(cm). The State argues that the circuit court erred in setting aside the three verdicts. We agree that the circuit court erred in setting aside the verdict on the § 940.225(3) sexual assault count. However, we uphold the circuit court as to the burglary counts. We therefore reverse only as to the § 940.225(3) sexual assault count. We remand for the circuit court to reinstate the guilty verdict on that count and for further sentencing proceedings.

WI Court of Appeals – District IV

Case Name: Dylan Lord v. LIRC

Case No.: 2014AP1897

Officials: Kloppenburg, P.J., Higginbotham and Blanchard, JJ.

Focus: Unemployment Benefits

Dylan Lord appeals a circuit court order affirming a decision by the Labor and Industry Review Commission (LIRC) denying Lord unemployment compensation benefits on the ground that he was discharged from his employment for misconduct connected with his work, rendering him ineligible for benefits under WIS. STAT. § 108.04(5) (2013-14).1 Lord argues that LIRC erred in considering in its findings evidence consisting of global positioning system (GPS) reports, because the reports were inadmissible and unreliable. We conclude that Lord forfeited the evidentiary issues he now raises for the first time on appeal. For these reasons, we affirm LIRC’s decision.

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Brett M. Spitzer

Case No.: 2015AP191-CR

Officials: Neubauer, C.J., Gundrum and Hagedorn, JJ.

Focus: Ineffective Assistance of Counsel

Brett M. Spitzer appeals from a judgment convicting him of substantial battery, disorderly conduct, and two counts of bail jumping, all as a repeater. He contends that he is entitled to a new trial due to the ineffective assistance of trial counsel. We disagree and affirm.

WI Court of Appeals – District II

Case Name: Wayne P. Adema v. Laura A. Dell

Case No.: 2014AP2638

Officials: Neubauer, C.J., Reilly, P.J., and Gundrum, J.

Focus: Divorce – Custody

Wayne Adema appeals from a December 10, 2014 circuit court order affirming the accuracy of a June 14, 2014 order awarding sole legal custody of the parties’ children to their mother, Laura Dell, because Adema did not comply with a previous order requiring him to cooperate with Dell on passport applications for the parties’ children.1 The circuit court properly exercised its discretion, and we affirm.

WI Court of Appeals – District IV

Case Name: Planned Parenthood of Wisconsin, Inc. v. Brad D. Schimel

Case No.: 2014AP2085

Officials: Neubauer, C.J., Reilly, P.J. and Gundrum, J.

Focus: Court Error

Plaintiffs-Respondents Planned Parenthood of Wisconsin, Inc. (PPW) and Dr. Fredrik Broekhuizen sought and received from the circuit court a summary and declaratory judgment interpreting newly enacted WIS. STAT. § 253.10 (2013-14), related to voluntary consent for an abortion, and WIS. STAT. § 253.105, related to medication abortions. Defendants-Appellants—the state attorney general in his official capacity, the Dane county district attorney in his official capacity and as a representative of a class comprising all Wisconsin district attorneys, and members of the Wisconsin Medical Examining Board— appeal, contending Plaintiffs’ entire action is nonjusticiable and therefore the court erred in granting judgment. We agree with Defendants and reverse.

Recommended for Publication

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WI Court of Appeals – District III

Case Name: Ripco Credit Union v. Valerie Kennedy

Case No.: 2015AP1280

Officials: HRUZ, J.

Focus: Service of Process

Valerie Kennedy appeals an order denying her motion to vacate a default judgment in favor of Ripco Credit Union entered in this small claims action. The circuit court concluded Kennedy’s motion was untimely under WIS. STAT. § 799.29(1)(c), which generally establishes a twelve-month period within which motions to reopen default small claims judgments must be filed. Kennedy argues her motion was timely filed after the expiration of that period because § 799.29(1)(c) does not apply to void judgments, which may be vacated at any time under WIS. STAT. § 806.07(1)(d). Kennedy argues the judgment was void due to insufficient service of process. We reject Kennedy’s argument that the judgment was void. In doing so, we assume without deciding that motions to vacate void judgments entered in small claims actions are not governed by the timeliness provision in WIS. STAT. § 799.29(1)(c). However, we conclude Ripco sufficiently served process on Kennedy by publication of a notice under WIS. STAT. § 799.12(6). As a result, the circuit court obtained personal jurisdiction over Kennedy, and we affirm the decision denying the motion to vacate the default judgment.

WI Court of Appeals – District III

Case Name: M.L.-F. V. Oneida County Department of Social Services

Case No.: 2015AP553; 2015AP554

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Guardianship Rights

M. L.-F. appeals orders dismissing her WIS. STAT. ch. 541 petitions for guardianship of her twin grandsons. The central issue on appeal is whether an order under WIS. STAT. § 48.427 that terminated the children’s parents’ parental rights and ordered guardianship with the State of Wisconsin required dismissal of M. L.-F.’s previously filed, but stayed, ch. 54 guardianship petitions. M. L.-F. argues WIS. STAT. § 48.977(8)(b) expressly allowed her to file the ch. 54 petitions. We agree with M. L.-F.’s interpretation of that statute. Nevertheless, we conclude that, under the specific circumstances of these cases, WIS. STAT. § 48.15 precluded the circuit court from granting M. L.- F.’s ch. 54 petitions. We therefore affirm.

Recommended for Publication

WI Supreme Court Digests

WI Supreme Court

Case Name: Office of Lawyer Regulation v. Stuart F. Roitburd

Case No.: 2014AP2801-D

Focus: Disciplinary Proceedings

Lawyer license suspended for 60 days

“Based on the course of conduct described above, the OLR alleged in its complaint that Attorney Roitburd knowingly disobeyed obligations under the rules of a tribunal, in violation of SCR 20:3.4(c)2 (Count One); engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of SCR 20:8.4(c) (Count Two); and failed to cooperate with the OLR investigation and to provide relevant information, answer questions fully, or furnish documents in the course of an OLR investigation, in violation of SCR 22.03(2) and SCR 22.03(6), enforced by SCR 20:8.4(h) (Count Three).”

ABRAHAMSON, A.W. BRADLEY, J.J., dissent. (Opinion Filed)

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WI Supreme Court

Case Name: State of Wisconsin v. Andy J. Parisi

Case No.: 2014AP1267-CR

Focus: Motion to Suppress

Motion to suppress results of blood test for violation of 4th amendment trumped by existent circumstances exception.

“The officers in this case were confronted with a medical emergency in which there were several unknown facts. The officers did not know with certainty what Parisi had ingested and, once heroin was suspected, did not know when he

had ingested it or how much he had ingested.”

Affirmed

A.W. BRADLEY, ABRAHAMSON, J.J., dissent.(Opinion Filed)

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WI Supreme Court

Case Name: Kenneth C. Burglar , Sr. V. Menards, Inc.

Case No.: 2013AP907

Focus: Insurance Coverage

Insurance provider breached duty to defend when it withdrew defense of Menards following settlement of case.

“Reversing the circuit court’s ruling, the court of appeals explained that the circuit court was “incorrect in holding that if the insurers paid the sum of $11,400, they owed no duty to defend.” Id. at 787. St. John’s explicitly held that “maximum potential liability” cannot be equated with “maximum policy limits.” Id. The St. John’s court explained that “[i]f an insurer owes any money at all under its insurance policy, it must defend, because Wisconsin is one of those states which requires an insurer to exhaust its total policy limits before it is freed from the duty to defend.” Id. Thus, even though Aetna and American tendered payment of their maximum potential liability of $11,400, they continued to have a duty to defend because they had not paid their full policy limits.”

ROGGENSACK, C.J., ZIEGLER, J., concur and dissent. (Opinion Filed)

GABLEMAN, R.G.BRADLEY, J.J., did notparticipate.

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