Weekly Case Digests — May 2-6, 2016

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7^th Circuit Digests

7th Circuit Court of Appeals

Case Name: Brian Herron v. Douglas Meyer

Case No.: 15-1659

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

Focus: 1^st Amendment – 8^th Amendment – Qualified Immunity

Judgment dismissing Disabled prisoner suit alleging prison guard intentionally placed him in a cell with an individual that would cause him harm allegations and that guard violated 8^th amendment rights is vacated.

“If Meyer set out to punish Herron for his grievances, then a price has been attached to speech. The district court thought otherwise in part because Herron had not attached his grievances to the complaint, but that was not necessary; a complaint narrates a claim and need not supply the proof. That comes later. Pratt v. Tarr, 464 F.3d 730, 732–33 (7th Cir. 2006). And if, as we doubt, an amendment to the complaint was required, the district court should have allowed it rather than dismissing the claim. See, e.g., Runnion v. Girl Scouts of Greater Chicago, 786 F.3d 510, 519–23 (7th Cir. 2015).”

Vacated and Remanded

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7th Circuit Court of Appeals

Case Name: Angel Houston v. C.G. Security Services, Inc.

Case No.: 15-1518

Officials: POSNER, FLAUM, and EASTERBROOK, Circuit Judges

Focus: Sanctions – Discovery

Court did not abuse discretion is upholding recommendations for sanctions against appellant for discovery violations

“C.G. further argues that it did not conduct discovery in bad faith and that any mistake or inadvertence on its part was nothing more than “bad record‐keeping” unworthy of sanction. To be sure, we have declined to impose sanctions where there is no showing of bad faith or improper purpose. See, e.g., Corley v. Rosewood Care Ctr., Inc. of Peoria, 388 F.3d 990, 1014 (7th Cir. 2004). Nonetheless, upon review, there is sufficient evidence to support the district court’s finding that C.G. acted in bad faith. For instance, before C.G. was joined as a defend‐ ant, Houston served on C.G. a non‐party documents subpoena. C.G. never responded to this subpoena. Although Houston did not seek relief for C.G.’s failure to comply with the subpoena, service of the subpoena alerted C.G. to the need to search for and secure documents related to its work for Hyatt at the New Year’s Eve party. Nevertheless, C.G.’s initial search as part of its discovery obligations did not take place until at least April 2013, roughly four months after C.G. was added as a party. Furthermore, C.G. did not provide information sought by Houston regarding the security personnel working for C.G. at the party in a timely manner, failed to alert Houston that it could not provide reasonably definitive information about the personnel, and then proceeded to continually change its answers about the personnel. There is also evidence of false or, at best, reckless and evasive testimony offered by at least one of C.G’s witnesses, namely Charles Guynn, C.G.’s owner and president. Such conduct does not comport with C.G.’s claim that it did the best it could to pro‐ vide Houston with accurate, timely information in discovery.”

Affirmed

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7th Circuit Court of Appeals

Case Name: Quasim Bolling v. Victor Carter, et al.

Case No.: 15-2254

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

Focus: 14^th Amendment Violation

Summary judgment against claim for willful indifference is reversed.

“The defendants argue that they never received an order from a doctor directing them to assign the plaintiff to a lower bunk, even after the doctor’s examination of him on February 9. But the denial appears in an unsworn submission that the plaintiff contends was untruthful, which it may well have been. The doctor’s order (one of only four pages of evidence attached to the plaintiff’s response to the defendants’ motion for summary judgment, and therefore difficult, one would have thought, for the district judge to have overlooked) kicks off with the following statement, overlooked by the defendants and the district judge, that goes some distance (though not all the way) toward establishing the plaintiff’s case: “Alert CCDOC [Cook County Department of Corrections] 2/9/2012 11:36 [a.m] [the date and time of the examination], Lower Bunk [the relief ordered by the doctor].” Yet all the district judge said in granting summary judgment in favor of the defendants was that “it is undisputed that Plaintiff never received a lower bunk permit at any time while at the jail.” This is doubly false. It is disputed and he did receive an order from a doctor directing that he be assigned to a lower bunk. The defendants’ brief does not discuss the dispute. It denies there was a permit or a doctor’s order, but does not substantiate its denial. Indeed its principal argument is that the plaintiff in opposing the motion for summary judgment violated Local Rule 56.1 (which governs motions for summary judgment) of the district court for the Northern District of Illinois. Because the plaintiff had no lawyer, the district judge did not exceed his authority in excusing the plaintiff’s pleading errors. Stevo v. Frasor, 662 F.3d 880, 886–87 (7th Cir. 2011).”

Reversed in Part

Affirmed in Part

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7th Circuit Court of Appeals

Case Name: Michael Miller v. Dushan Zatecky

Case No.: 15-1869

Officials: EASTERBROOK and SYKES, Circuit Judges, and ADELMAN, District Judge.

Focus: Pleas & Sentencing – Ineffective Assistance of Counsel    

Court did not err in imposition of sentence and attorney did not provide ineffective assistance of counsel and chances of success was effectively “zero”

“And why should a state be required, as a matter of either state or federal law, to give Miller the benefit of decisions released after the conclusion of his direct appeal? Miller does not question the state judiciary’s conclusion that, if his lawyer had contested the length of his sentence in 2004, he would have lost. The goal of ineffective-assistance doctrine is to give criminal defendants the benefit of the counsel to which the Sixth Amendment says they are entitled. We know from Indiana’s decision that, even if appellate counsel had done exactly what Miller says counsel should have done, this would not have helped him. It would be weird to say that a defendant is better off having a lawyer who omits a losing issue than if that lawyer had performed exactly as a zealous and capable counsel should.”

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Lemurel E. Williams

Case No.: 15-1194

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

Focus: Jury Issues

The jury verdict was impermissively coercive, requiring a new trial.

“Had the judge here followed the “wise” approach de‐ scribed in Carraway—that is, had he stopped polling once Juror 1 rejected the verdict—the likelihood of coercion would have been far less substantial.3 Instead, he polled the entire jury, revealing its precise division and putting pressure on Juror 1 as the publicly known lone dissenter. We are confident that the judge did not intend to pressure anyone (it appears he did not hear Juror 1’s response), but the judge’s intentions are not at issue. Blitch, 622 F.3d at 668. Indeed, the judge’s innocent failure to hear Juror 1 led to additional coercive actions: dismissing the jury (which could convey that the judge was eager to end the case4) and publicly polling the entire jury a second time. See Lowenfield, 484 U.S. at 251 (“The court here polled the jury not once, but twice, increasing whatever coercive effect a single poll would have had.”) (Marshall, J., dissenting). So the manner of polling risked coercion to a greater extent than necessary. Given that the continued polling served no purpose at all, departed from the approach we approved in Carraway, and happened twice, the error was “plain” and “obvious.”

Reversed and Remanded

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7th Circuit Court of Appeals

Case Name: Norther Illinois Service Company v. Thomas Perez

Case No.: 15-2640

Officials: POSNER, EASTERBROOK, and WILLIAMS, Circuit Judges

Focus: Safety Violations

Petition to Review for non-serious safety and health violations denied.

“The company contends that the ALJ explained his decision inadequately, but it is thorough and covers the important issues. The company really means that in its view the ALJ applied the regulation incorrectly. It stresses that the regulation speaks of “units” in the plural, while the company’s trailer had only one unlabeled switch. Yet it is a principle of legal interpretation that the plural includes the singular. 1 U.S.C. §1 ¶2. Under this statute, known as the Dictionary Act, drafters can use either the singular or the plural knowing that judges will treat each as including the other “unless the context indicates otherwise”. Statutes and regulations are long enough as they are without forcing drafters to include both the singular and the plural every time. Observing that on occasion a plural construction really is designed to limit coverage to multiple instances, drafting guides recommend use of the singular for clarity. See, e.g., Bryan A. Garner, Guidelines for Drafting and Editing Legislation §2.4 (2016); Senate Legislative Drafting Manual §104(a) (1997). But as the company does not contend that either the linguistic or economic context of §56.12018 implies a limit to more than one unit at a location—why would the Administration devise such a limit in such a backhanded way?—we apply the norm from the Dictionary Act.”

Petition for Review Denied

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7th Circuit Court of Appeals

Case Name: Barbara J. Wells v. Winnebago County, Illinois

Case No.: 15-1805

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

Focus: Discrimination

Summary judgment properly granted against appellant for discrimination claims.

“She needed to establish that the County was required to treat her references to anxiety as notices of a link between her disability and her working conditions that would set off the process of considering possible accommodations. Even in this litigation she has not offered medical evidence demonstrating that a reasonable employer would understand every mention of an employee’s anxiety as a disability or understand, without medical knowledge, how anxiety and chronic fatigue syndrome are related. Certainly Wells did not provide such evidence to her employer. “[O]ur cases have consistently held that disabled employees must make their employers aware of any nonobvious, medically necessary accommodations with corroborating evidence such as a doctor’s note or at least orally relaying a statement from a doctor, before an employer may be required under the ADA’s reasonableness standard to provide a specific modest accommodation”. Ekstrand v. School District of Somerset, 583 F.3d 972, 976 (7th Cir. 2009).”

Affirmed

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7th Circuit Court of Appeals

Case Name: Donovan M. Burris v. Judy P. Smith

Case No.: 15-2891

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

Focus: Jury Instruction

WI Supreme court did not unreasonably apply the law in assessing an ambiguous jury instruction.

“There are still other ways in which a misleading jury instruction may violate due process but we need not discuss them here. The bottom line is that this instruction, to the extent that it may have misled the jury, only contained errors of tate law. And “the fact that the instruction was allegedly incorrect under state law is not a basis for habeas relief.” Estelle, 502 U.S. at 71–72. Moreover, Burris has not demonstrated that the instruction was reasonably likely to mislead the jury. Assuming, as the parties do, that the instruction was ambiguous, the Wisconsin Supreme Court properly stated the correct standard for reviewing allegedly misleading jury instructions and reasonably applied that standard to this case.”

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Roberto Rebolledo-Delgadillo

Case No.: 15-2121

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

Focus: Sufficiency of Evidence – Pleas & Sentencing

Substantial evidence and appropriateness of sentence overcomes appellant objections to conviction.

“We share the district court’s disbelief that an experienced drug dealer like Ramirez would allow a novice to broker a $200,000 drug transaction. Moreover, there is evidence in the record that casts doubt on several of Rebolledo’s interview statements, including his claim that he had not been involved in previous drug transactions. For example, Rebolledo admit‐ ted to driving Individual P to the CI’s ranch eighteen months before the August 16 transaction. As the district court observed, Individual P and the CI planned a drug deal during that meeting. It is difficult to accept Rebolledo’s claim that he did not know about that drug deal given that Rebolledo contacted the CI eighteen months later, refused to give the CI his real name, and then became entangled in a large drug trans‐ action. In light of that evidence and the other suspicious and inconsistent statements contained in Rebolledo’s proffer, the district court did not clearly err in refusing safety valve relief.”

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Kristen Lauren Smith

Case No.: 14-3442

Officials: POSNER, EASTERBROOK, and SYKES, Circuit Judges

Focus: Kidnapping – Suppression

Statements of appellant properly admitted into court, appellant did not retain any parental permission to take child. No coercion occurred in obtaining evidence from appellant.

“Smith places special emphasis on her pre-polygraph colloquy with Agent Riessen—specifically, her affirmative response to the agent’s question whether anyone was forcing her to take a polygraph test. (Recall that when she gave this answer, Agent Riessen assured her that she didn’t have to take the polygraph. She then signed the consent form and the examination proceeded.) At the evidentiary hearing on the suppression motion, Smith testified that before the polygraph examination began, Agent McMillan approached her in the hallway and told her that she had to take the polygraph. Agent McMillan denied saying this or anything like it. The magistrate judge credited the agent’s testimony over Smith’s. The district judge accepted this credibility determination, and Smith doesn’t challenge that ruling on appeal. Without more, the pre-polygraph exchange with Agent Riessen is not evidence of coercion”

Affirmed

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7th Circuit Court of Appeals

Case Name: Central States, et al v. Bulk Transport Corp.

Case No.: 15-3346; 15-3208

Officials: POSNER, EASTERBROOK, and KANNE, Circuit Judges

Focus: ERISA

Company making contributions to employee pension plan has obligated itself under agreement to do so, as such, a request for refund of contributions properly denied.

“Bulk tells us that no one wants to take away Loniewski’s pension entitlement—and that in fact it’s committed to paying the pension if the Fund refuses to do so, though Bulk hasn’t reduced this “commitment” to writing and of course wants Central States to fund his pension instead of Bulk. But if Loniewski has been mistakenly covered by the collective bargaining agreements between Bulk and the Teamsters local all these years and hence by Central States, which funds the pension commitments made in those agreements, the fault is Bulk’s, not Central States’, which didn’t know, or have a duty to inquire into, whether Loniewski was or was not a driver. Bulk being at fault, the district court correctly refused to order a refund—and for the further reason that the collective bargaining agreements to which Bulk was a party, and the 2003 settlement agreement that we mentioned, were explicit that Loniewski was covered by the agreements, and the parties’ conduct was consistent with that understanding.”

Affirmed in part

Reversed in part and remanded

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7th Circuit Court of Appeals

Case Name: Mohsen Karroumeh v. Loretta E. Lynch

Case No.: 15-2198

Officials: WOOD,Chief Judge,and MANION and ROVNER, Circuit Judges.

Focus: Immigration – Removal

Appellant entitled to new hearing due to inability to cross-examine key government witnesses

“Wright’s statement is marked by contradictions and inconsistencies that call its reliability into question. For example, Wright gave three different dates for her move to Mississippi and two different dates for her return to Illinois She both denied signing leases with Karroumeh and also admitted signing them. Some of her statements beg for an explanation, such as her claim that she did not live with Karroumeh at his Worth address “lease wise.” Wright gave the statement more than six years after her divorce from Karroumeh. In a response that could be interpreted as displaying bias , she said that she divorced Karroumeh because after “constant lie after lie, he never followed through with his plans like getting a house[.]” Karroumeh has been deprived of an opportunity to ask clarifying questions or pursue areas left unexplored by Leslie. In his appeal to the Board, Karroumeh noted that Leslie never directly asked Wright if she was engaged in a fraudulent marriage, never asked for themeaning of the term “lease wise,” never inquired why Karroumeh gave Wright money during the marriage, and never asked whether Wright was prosecuted for marriage fraud. In light of the contradictions and inconsistencies as well as Wright’s motive to testify against her ex-husband, her hearsay statement was unreliable and Karroumeh should have been allowed an opportunity to test it with cross-examination. The admission of her statement under these circumstances was not fundamentally fair. And without this evidence, the government could not meet its burden of demonstrating by clear and convincing evidence that the marriage was a sham. Karroumeh has thus established prejudice.”

Petition Granted

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7th Circuit Court of Appeals

Case Name: United States of America v. Pavel Leiva

Case No.: 15-1930

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

Focus: Sufficiency of Evidence – Court Interpreters Act

Appellant unsuccessfully argues that language barrier led to illegal search of his vehicle and issues during trial testimony that violated his due process rights

“These examples demonstrate multiple laudable actions of the district court: it attended to the concerns of counsel; it encouraged patience; it admonished Leiva not to ramble and the interpreter to translate in real time; it encouraged counsel to ask short, simple questions; it paused when necessary to ensure that Leiva understood the translation; it ensured that the testimony was recorded; and it arranged the courtroom to optimize sound clarity. The district court responded practically to each issue that arose, and collaborated with counsel to make the best of a less than ideal situation. Further, as noted above, the translation itself is clear. In light of the district court’s many precautions and the ultimate translation produced, not removing and replacing the interpreter was not an abuse of discretion.”

Affirmed

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7th Circuit Court of Appeals

Case Name: Timothy Bell v. Eugene McAdory, et al

Case No.: 15-1036

Officials: POSNER, EASTERBROOK, and KANNE, Circuit Judges

Focus: 8^th Amendment – Timely Filing

Appellant fails to make timely appeal, however, his filing is treated as a request for an extension.

“The Rules of Appellate Procedure nonetheless offer some assistance to litigants who misunderstand when an appeal must be filed. Rule 4(a)(5)(A)(i) permits a district judge to add another 30 days to the time for appeal, if “a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires”. It is unclear to us why the district judge did not treat Bell’s motion as one under that rule. After all, the judge knew that the motion had been miscaptioned. It called itself a Rule 59 motion for reconsideration; the judge recognized that it was too late to be that and treated it as if it were a Rule 60 motion. Why not treat it as a Rule 4(a)(5) motion instead? The judge did not say.”

Remanded with instructions to treat filing as a request for an extension under Rule 4(a)(5)

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Court of Appeals Digests

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Kevin D. Knight

Case No.: 2014AP1008

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

Focus: Ineffective Assistance of Counsel

Kevin Knight appeals an order denying his WIS. STAT. § 974.06 (2013-14), postconviction motion without a hearing. He argues: (1) his trial counsel was ineffective for failing to introduce into evidence the victim’s alleged prior false allegations of sexual assault and for failing to impeach her testimony; (2) he is entitled to a new trial based on newly discovered evidence concerning a police officer’s posttrial “sexting” with a sixteen-year-old girl; and (3) this court should grant him a new trial in the interest of justice. We reject these arguments and affirm the order.

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WI Court of Appeals – District III

Case Name: Paul R. Bertheaume et al v. Floyd Howard Olsen

Case No.: 2014AP2886

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

Focus: Easements

Floyd Olsen appeals a judgment declaring that Paul and Laura Bertheaume enjoy a thirty-foot wide, non-exclusive easement for ingress and egress over an existing roadway located on Olsen’s property. The circuit court found that this roadway consists of both a gravel road as well as the grassy areas on its sides. Olsen argues the easement should be twelve feet wide, encompassing only the width of the gravel road. We affirm the circuit court’s findings regarding the area subject to the easement.

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WI Court of Appeals – District III

Case Name: Judith Haug v. Barbara Greve

Case No.: 2015AP54

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

Focus: Statute of Frauds – Estate

Judith Haug, Special Administrator of the Estate of Robert Greve, appeals an order resolving the Estate’s action seeking a declaration of interest in property. Following an advisory jury trial, the circuit court determined that Robert Greve had contracted to devise certain real property if he still owned it at his death, and that the contract was enforceable in equity. The Estate argues the court erroneously determined that the contract was exempt from the statute of frauds, and that even if the statute of frauds did apply, the transaction should be enforced in equity. We conclude the contract was exempt from the statute of frauds, and affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Anthony T. Miller

Case No.: 2015AP724

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

Focus: Plea Withdrawal

Anthony Miller, pro se, appeals an order denying his WIS. STAT. § 974.06 (2013-14) postconviction motion to withdraw his guilty pleas to two counts of possessing child pornography. Because we conclude the motion is procedurally barred, we affirm the order.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Phillip Kareen Green

Case No.: 2015AP1126-CR

Officials: Curley, P.J., Kessler and Brennan, JJ.

Focus: Sufficiency of Evidence

Phillip Kareen Green appeals the judgment, entered following a jury trial, convicting him of first-degree reckless homicide with the use of a dangerous weapon contrary to WIS. STAT. §§ 940.02(1) and 939.63(1)(b) (2013-14).  Green also appeals the denial of his postconviction motion, in which he argued that his conviction should be vacated because there was insufficient evidence to convict him of first-degree reckless homicide and that he is entitled to a new trial in the interest of justice pursuant to WIS. STAT. § 752.35. We affirm, as there is sufficient evidence to convict him of first-degree reckless homicide, and he is not entitled to a new trial in the interest of justice, as the real controversy was fully tried and justice did not miscarry

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Joshua Java Berry

Case No.: 2015AP1195-CR

Officials: Curley, P.J., Brennan and Brash, JJ.

Focus: Double Jeopardy

Joshua Java Berry appeals a non-final order denying his motion to dismiss. Berry argues that because the circuit court previously dismissed a charge of possession of a firearm as a felon contrary to WIS. STAT. § 941.29(2)(a) (2013-14) with prejudice, his right to be free from double jeopardy was violated by denying his motion to dismiss a subsequent charge of possession of a firearm as someone who has been adjudicated delinquent contrary to § 941.29(2)(b). We disagree and affirm.

Recommended for publication

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Tramell E. Starks

Case No.: 2014AP2915

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

Focus: New Trial For Newly Discovered Evidence

Tramell E. Starks appeals an order summarily denying his WIS. STAT. § 974.06 (2013-14)1 postconviction motion seeking a new trial due to newly discovered evidence. He also requests a new trial in the interest of justice. Because Starks’s motion fails to establish the existence of newly discovered evidence entitling him to a new trial, we affirm.

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WI Court of Appeals – District II

Case Name: Joseph M. Longoria v. Sarah M. Longoria

Case No.: 2015AP736

Officials: Reilly, P.J., Gundrum and Hagedorn, JJ.

Focus: Divorce – Child Support – Maintenance – Property Division

Joseph Longoria and Sarah Longoria divorced in 2014 after a nine-year marriage and two children. Trial was to the court. Joseph appeals from the child support, maintenance, and property division portions of the judgment of divorce. Sarah cross-appeals from the order denying her motions to reconsider and to reopen the judgment regarding legal custody (custody) and physical placement (placement). We hold that the trial court properly exercised its discretion in all regards. We affirm the judgment and order.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. William B. Petty

Case No.: 2015AP641-CR

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

Focus: Court Error – Right o Confrontation

William Petty appeals a judgment of conviction for possession of a firearm by a felon as a repeater and injury by negligent handling of a dangerous weapon as a repeater in connection with a shooting at an apartment. Petty also appeals the denial of his postconviction motion for a new trial. Petty argues that the judgment should be vacated and the case should be remanded for a new trial for three reasons: (1) Petty was deprived of his constitutional right to confrontation when the victim testified selectively at trial by invoking the Fifth Amendment privilege against self-incrimination; (2) the circuit court erred in admitting “other acts” evidence of Petty’s gun purchase two days before the charged crimes occurred; and (3) the circuit court erred in admitting into evidence an out-of-court identification of Petty by the seller of the gun. We address and reject each of Petty’s arguments below. Accordingly, we affirm.

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WI Court of Appeals – District IV

Case Name: North Highland, Inc. v. Jefferson Machine & Tool Inc., et al

Case No.: 2015AP643

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

Focus: Breach of Fiduciary Duty

North Highland, Inc., appeals summary judgment in favor of Frederick Wells. North Highland brought suit against Wells, alleging in part that Wells had conspired to breach a fiduciary duty owed to North Highland by a former employee of North Highland and that Wells has misappropriated a trade secret, in violation of WIS. STAT. § 134.90 (2013-14). The circuit court granted summary judgment in favor of Wells on each of these claims. For the reasons discussed below, we affirm.

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WI Court of Appeals – District IV

Case Name: Kenneth Ransom v. Village of Cross Plains

Case No.: 2015AP1556

Officials: Lundsten, Higginbotham and Blanchard, JJ

Focus: Temporary Easement – Damages

By exercise of its eminent domain power, the Village of Cross Plains acquired a portion of Kenneth Ransom’s property for a road project. Ransom appealed the just compensation amount to the circuit court, and, while that appeal was pending, the Village temporarily used a different portion of Ransom’s property for the same project. Ransom sought damages for this temporary easement in the context of his pending just compensation appeal. The circuit court excluded those alleged damages and instead adopted the Village’s position that Ransom’s remedy for temporary easement-related damages was an inverse condemnation claim. Ransom now appeals to this court, renewing his claim that the easement-related damages are compensable as part of his just compensation appeal. Because Ransom fails to persuade us that he is correct, we affirm. The parties have not briefed whether Ransom may still bring his inverse condemnation claim and, therefore, we do not weigh in on that question.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. G.H.

Case No.: 2015AP1606

Officials: BRASH, J.

Focus: Termination of Parental Rights

G.H. appeals from an order terminating his parental rights to his son, M.R.H. He also appeals the order denying his postdispositional motion.2 G.H. makes the following arguments on appeal: (1) trial counsel was ineffective; (2) WIS. STAT. §§ 48.415(2) and (6) were unconstitutional as applied; (3) the circuit court erred in admitting foster parent testimony, creating a comparison of parenting abilities; (4) the evidence adduced at trial was insufficient; and (5) he is entitled to a new trial. We disagree and affirm

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WI Court of Appeals – District III

Case Name: Carmen J. Bertelsen v. Wisconsin Employment Relations Commission et al.

Case No.: 2015AP1691

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

Focus: Prohibited Practice Complaint

Carmen Bertelsen appeals from an order affirming the decision by the Wisconsin Employment Relations Commission (WERC) that dismissed her prohibited practice complaint alleging that Pierce County terminated her without just cause. The Commission did not exercise jurisdiction over the complaint on the ground that the contractual grievance arbitration procedure was the exclusive means to enforce the just cause provision in the collective bargaining agreement between the County and Bertelsen’s union, the Labor Association of Wisconsin, Inc., and its affiliate, Pierce County Nurses Association Local 901.1 Bertelsen had argued that her complaint should be permitted to go forward because the union failed in its duty of fair representation, but the Commission found that she had failed to establish that. We affirm the Commission’s decision.

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WI Supreme Court Digests 

WI Supreme Court

Case Name: Walworth State Bank v. Abbey Springs Condominium Association, Inc. et al

Case No.: 2015AP940

Focus: Property Lien – Condominium Law

The membership and guest policy revived a lien against the property that former unit owners had extinguished.

“Although Abbey Springs concedes that Walworth State Bank had no legal obligation to pay the former owners’ unpaid assessments following foreclosure, the policy dictates that any unpaid assessments stay with the unit and transfer to the new owners rather than travel with the former unit’s owner who actually incurred the debt. The policy does so by preventing a new purchaser of any unit, whose only connection to the unpaid assessments is through the unit itself, from accessing the recreational facilities if the prior owner failed to pay his or her assessments. As a result, the policy effectively allows Abbey Springs to assert a right against the property for the prior owner’s unpaid assessments in violation of well-established foreclosure law. Furthermore, the policy violates the Foreclosure Judgment that eliminated “all right, title, interest, lien or equity of redemption” of Abbey Springs in and to the foreclosed units. Because we conclude that the condominium policy violates well-established foreclosure law and the Foreclosure Judgment entered in the underlying foreclosure action, we do not address Walworth State Bank’s argument that the policy renders the unit’s title unmarketable.

Affirmed

ABRAHAMSON, J. dissents, joined by BRADLEY, A. W., J.

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WI Supreme Court

Case Name: Office of Lawyer Regulation v. Michael J.  Hicks

Case No.: 2014AP2818-D

Focus: Disciplinary Proceedings

Lawyer license suspended for one year to run consecutive to two year suspension from previous proceeding.

“The referee recognized that the misconduct at issue in the present case occurred in roughly the same time period and was of the same types as the misconduct at issue in Hicks II. He therefore questioned whether the OLR in Hicks II would have sought a suspension longer than two years if all of the misconduct in this case had been included in that case. Ultimately, he concluded that the additional 19 counts of misconduct at issue here merited an additional one-year period of suspension consecutive to the two-year suspension imposed in Hicks II. He determined that if the OLR had “charged Attorney Hicks with all of the counts in a single disciplinary complaint, a three year suspension would have been reasonable and appropriate.” The referee also determined that the misconduct found in this disciplinary proceeding, when considered by itself, merited a one-year suspension. The referee indicated that he believed a one-year suspension was justified by the analyses set forth in two cases involving Attorney Patrick Cooper. In re Disciplinary Proceedings Against Cooper, 2007 WI 37, 300 Wis. 2d 61, 729 N.W.2d 206 (imposing three-year suspension due to 35 counts of misconduct); In re Disciplinary Proceedings Against Cooper, 2013 WI 55, 348 Wis. 2d 266, 833 N.W.2d 88 (imposing two-year suspension, retroactive to and consecutive to the expiration of the 2007 suspension as a result of 42 counts of misconduct). The referee considered Attorney Hicks’ misconduct to be less egregious than Attorney Cooper’s misconduct, which would support a consecutive one-year suspension in this case.”

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US Supreme Court Digests

US Supreme Court

Case Name: Heffernan v. City of Paterson

Case No.: 14-1280

Focus: First Amendment – Unlawful Employer Activities

When employer demotes an employee to prevent the employee from engaging in political activity, the employee is entitled to challenge that unlawful action on 1^st amendment and Section. 1983 grounds even if the employer’s actions are based on a factual mistake.

“To answer the question whether an official’s factual mistake makes a critical legal difference, the Court assumes that the activities that Heffernan’s supervisors mistakenly thought he had engaged in are of a kind that they cannot constitutionally prohibit or punish. Section 1983 does not say whether the “right” protected primarily focuses on the employee’s actual activity or on the supervisor’s motive. Neither does precedent directly answer the question. In Connick v. Myers, 461 U. S. 138, Garcetti v. Ceballos, 547 U. S. 410, and Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, there were no factual mistakes: The only question was whether the undisputed reason for the adverse action was in fact protected by the First Amendment. However, in Waters v. Churchill, 511 U. S. 661, a government employer’s adverse action was based on a mistaken belief that an employee had not engaged in protected speech. There, this Court determined that the employer’s motive, and particularly the facts as the employer reasonably understood them, mattered in determining that the employer had not violated the First Amendment. The government’s motive likewise matters here, where respondents demoted Heffernan on the mistaken belief that he had engaged in protected speech. A rule of law finding liability in these circumstances tracks the First Amendment’s language, which focuses upon the Government’s activity. Moreover, the constitutional harm— discouraging employees from engaging in protected speech or association—is the same whether or not the employer’s action rests upon a factual mistake. Finally, a rule of law imposing liability despite the employer’s factual mistake is not likely to impose significant extra costs upon the employer, for the employee bears the burden of proving an improper employer motive”

Reversed and Remanded

Dissenting: THOMAS, ALITO

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