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Weekly Case Digests — May 16-20, 2016

By: WISCONSIN LAW JOURNAL STAFF//May 20, 2016//

Weekly Case Digests — May 16-20, 2016

By: WISCONSIN LAW JOURNAL STAFF//May 20, 2016//

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7th Circuit Digests

7th Circuit Court of Appeals

Case Name: 15-3675, 15-3859

Case No.: Polycon Industries, Inc., v. National Labor Relations Board

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

Focus: Collective Bargaining Agreement

Appellant objection to signing collective bargaining agreement was frivolous, therefore NLRB Order directing Appellant to sign is enforced.

“final agreement had been reached, its conduct would have been problematic, because the “withdrawal of a proposal by an employer without good cause is evidence of a lack of good faith bargaining by the employer in violation of Section 8(a) of the Act where the proposal has been tentatively agreed upon or acceptance by the Union appears to be imminent.” Mead Corp. v. NLRB, 697 F.2d 1013, 1022 (11th Cir. 1983); see 29 U.S.C. § 158(a)(5). Mead was an “appears to be imminent” case, and the court upheld the Labor Board’s finding of bad faith. The present case is an even stronger case for the union, since it had accepted Johnson’s proposed change regarding right to work, and with that acceptance union and management had an agreement.”

Order Enforced

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7th Circuit Court of Appeals

Case Name: Donald L. McDonald v. Marcus Hardy

Case No.: 15-1102

Officials: RIPPLE, WILLIAMS, and HAMILTON, Circuit Judges

Focus:  Cruel & Unusual Punishment

Warden not entitled to summary judgment on claim alleging 8th amendment violation due to cancellation of appellant prescription diet

“Warden Hardy and Assistant Warden Edwards touch on, but have not developed, an argument concerning causation. See Flint v. City of Belvidere, 791 F.3d 764, 770 (7th Cir. 2015) (explaining that plaintiff alleging constitutional tort must Warden Hardy and Assistant Warden Edwards touch on, but have not developed, an argument concerning causation. See Flint v. City of Belvidere, 791 F.3d 764, 770 (7th Cir. 2015) (explaining that plaintiff alleging constitutional tort must show that defendant caused injury); Roe, 631 F.3d at 863–64. In their summary judgment motion, the defendants stated only that Mr. McDonald “can provide no evidence that his cholesterol level has been affected by not having a low cholesterol diet.” However, given the diagnosis of a serious medical condition and the interference by Warden Hardy and Assistant Warden Edwards with a physician’s assessment that a low-cholesterol diet was necessary in treating that condition, a jury reasonably could infer that Mr. McDonald was, and continues to be, harmed by the lack of a low-cholesterol diet. See Gayton, 593 F.3d at 624–25 (concluding that jury could infer causation from evidence of serious medical condition and requests for treatment that were ignored); Grieveson v. Anderson, 538 F.3d 763, 779 (7th Cir. 2008) (explaining that jury could infer that delay in providing treatment caused harm). The defendants made no effort to establish that Mr. McDonald’s level of total cholesterol remained steady after his prescription diet was taken away. Nor did they offer an expert’s opinion that Mr. McDonald could not have been harmed by the defendants’ actions. Accordingly, we must return this claim to the district court for further proceedings.”

Affirmed in part

Reversed and remanded in part

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7th Circuit Court of Appeals

Case Name: United States of America v. Eugene A. Sweeney

Case No.: 14-3785

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

Focus: Motion to Suppress – Pleas & Sentencing

District court failure to state support or findings with special conditions of supervised release yields vacated sentence.

“In a recent series of decisions, however, this court has been subjecting the imposition of supervised release conditions to much closer scrutiny than had been common, and we have done so even when no objections have been raised in district courts. In particular, see United States v. Siegel, 753 F.3d 705 (7th Cir. 2014); United States v. Thompson, 777 F.3d 368 (7th Cir. 2015); United States v. Sewell, 780 F.3d 839 (7th Cir. 2015); United States v. Kappes, 782 F.3d 828 (7th Cir. 2015); but cf. United States v. Silvious, 512 F.3d 364, 371 (7th Cir. 2008) (finding no plain error where district court imposed special conditions of supervised release that were overly broad). The district court neither stated all the conditions orally nor obtained a waiver for doing so, and did not provide any explanation for many of the conditions. In addition, some of the specific conditions imposed here have been found too vague or otherwise improper, though our circuit law is evolving with respect to some of those conditions, such as the requirement that the defendant answer truthfully all inquiries by the probation officer and permit the probation officer to visit his home at any time. See, e.g., United States v. Douglas, 806 F.3d 979, 985–86 (7th Cir. 2015); United States v. Armour, 804 F.3d 859 (7th Cir. 2015) (condition that probation officer could visit anytime between 6 a.m. and 11 p.m.). Based on the logic of our recent cases, we must remand the case.”

Affirmed as to conviction

Vacated and remanded as to sentence

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7th Circuit Court of Appeals

Case Name: Eric Trotter et al v. Harleysville Insurance Company

Case No.: 15-3654

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

Focus: Underinsured Motorist Coverage – Insurance Policy

Insurance policy clearly states $500,000 limitation on coverage per accident.

“In arguing that the policy is ambiguous, the plaintiffs point to various aspects of the policy language that they believe create uncertainty over which “limit of liability” paragraph is controlling—the one in the Illinois endorsement or the one in the single-limit endorsement. We conclude that the policy is unambiguous and that the paragraph in the single-limit endorsement controls. But even if there were ambiguity over which paragraph is controlling, we could not resolve the ambiguity in a way that removes the per-accident limit. That is because both paragraphs state that coverage is subject to a $500,000 per-accident maximum, regardless of the number of insureds involved in the accident. The only difference between the two paragraphs is that the one in the Illinois endorsement contains a per-person limit in addition to the per-accident limit. Thus, even if we thought that an ambiguity in the policy language required that we disregard the single-limit endorsement and enforce the Illinois endorsement as written (which we do not), the limit for underinsured motorist coverage would still be $500,000 per accident”

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Joyce Adent, et al

Case No.: 15-3554

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

Focus: Tax Lien – Foreclosure

Appellants fail to provide exceptional circumstances that overcome the governments paramount interest in prompt and certain collection on property subject to a tax lien for failure to pay despite innocent interest in property.

“Additionally, the Supreme Court provided a non‐exhaustive list of four factors to consider when an innocent third party has an interest in the property to be sold, recognizing that “financial compensation may not always be a completely adequate substitute for a roof over one’s head.” Id. at 704. These factors include: (1) the prejudice to the government’s interest as the result of a partial, rather than a total, sale; (2) “whether the third party with a non‐liable separate interest in the property would, in the normal course of events … have a legally recognized expectation that that separate property would not be subject to forced sale by the delinquent taxpayer or his or her creditors”; (3) the prejudice to the third party as the result of a total sale; and (4) “the relative character and value of the non‐liable and liable interests held in the property.” Id. at 710–11.”

Affirmed

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7th Circuit Court of Appeals

Case Name: Karla Steimel v. Thomas Maertz et al; Michael Beckem et al v. Indiana Family and Social Services Administration

Case No.: 15-2377; 15-2389

Officials: WOOD, Chief Judge, and KANNE and ROVNER, Circuit Judge

Focus: Health Services

Indiana waiver policy may include violations of integration mandate.

“It also appears, however, that recipients of FS waiver se vices may choose how to spend their allowance. The state argues that the FS waiver actually provides the plaintiffs sufficient waiver services to participate in the community, but that these plaintiffs have used the FS resources in a way that has led to their current isolation. In support of this contention, the state has offered evidence that the plaintiffs could make different choices that would allow them more services in the community. It also offered evidence that the Coles are using a lower dollar amount of services than they did under the A&D waiver, and that Maertz’s situation has been influenced by the fact that his sister is the paid provider of his waiver services. There is therefore a dispute of material fact as to whether the state’s 2011 policy change caused the plaintiffs’ isolation, and summary judgment is inappropriate on that question. See FED. R. CIV. P. 56(a).”

Reversed and Remanded

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7th Circuit Court of Appeals

Case Name: Craig J. Kunkel et al v. Commissioner of Internal Revenue

Case No.: 15-2232

Officials: EASTERBROOK and HAMILTON, Circuit Judges, and PEPPER, District Judge.*

Focus: IRS Tax Assessment – Abuse of Discretion

IRS error does not overcome implementation of 20% penalty to taxpayer

“The Tax Court thought reform of the waivers appropriate because only the 2008 tax year had periods of limitations expiring in spring 2012. The forms could not have served any purpose other than extending the time to file assessments for 2008—and you can’t beat something with nothing. Taxpayers’ brief speculates that Bastian thought that he was playing a practical joke on the IRS by signing without alerting it to the scrivener’s error. This seems unlikely; the adverse effect on Bastian’s professional reputation could have been substantial. If the IRS came to conclude that Bastian had tried to hoodwink it, he might find his credentials as a tax representative pulled. The best way to understand what happened is the way the Tax Court did: A typist misread the file, entering the dates on which limitations periods would expire rather than the dates on which the tax years ended, and then everyone else missed that error. We see no clear error or abuse of discretion in that conclusion.”

Affirmed

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7th Circuit Court of Appeals

Case Name: David Novoselsky v. Dorothy Brown

Case No.: 15-1609

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

Focus: Defamation

Allegedly defamatory statements were made as related to respondents official duties.

“We conclude that all of the arguably defamatory communications in this case are protected by this official immunity. First, Brown’s complaint to the ARDC was within the scope of her official duties. Novoselsky’s numerous lawsuits against Brown alleged her dereliction of the office’s responsibilities— failure to segregate court fees into separate bank accounts, failure to audit court funds, and unlawful use of court funds for personal gain. Brown’s complaint focused on these issues and pointed to the Illinois provisions regulating her conduct in each of these areas. To be sure, Brown tested the boundaries of her immunity by remarking in a footnote that Novoselsky is guilty of “racial animus” and citing controversial publications to show the public has an unconscious perception of African Americans as “intellectually and morally inferior.” But taken altogether, the complaint falls within the ambit of Brown’s official duties to oversee the Circuit Court Clerk’s office and to respond to litigation filed against it”

Reversed and Remanded

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7th Circuit Court of Appeals

Case Name: United States of America v. Wilson Titus

Case No.: 15-3054

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

Focus: Pleas & Sentencing

Sentence imposed on appellant unsupported by factual findings.

“Likewise, without knowing how many fraudulent transactions the court attributed to Titus, we cannot evaluate the reasonableness of imposing an 18-level enhancement based on a loss amount of $2.5 million to $7 million. Titus contended that the loss amount was much lower, closer to $1 million. Although we know that the district court disagreed with this low figure, we cannot be certain that the loss amount exceeded $2.5 million without specific factual findings, including the number of fraudulent transactions for which Titus was held responsible.”

Vacated and Remanded

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7th Circuit Court of Appeals

Case Name: Jamie Becker v. Zachary Elfreich

Case No.: 15-1363

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

Focus: Excessive Force – Qualified Immunity

Officers excessively violent activities during arrest negate application of qualified immunity.

“When Evansville police attempted to arrest Jamie Becker, Officer Elfreich released his police dog under the belief that Becker was hiding in the house. However, two seconds later, Officer Elfreich discovered Becker had been descending the stairs to surrender with his hands above his head. Nonetheless, Officer Elfreich continued to allow the police dog to bite Becker, while pulling him down three steps and placing his knee on his back and handcuffing him. And Becker suffered serious bodily injury as a result of the dog bite. While it is unclear from the record whether Axel presented a substantial risk of serious risk bodily harm (and thus deadly force), the force was clearly at the more severe end of the force spectrum. A jury could reasonably find such force was excessive. Further, because it was clearly established at the time of Becker’s arrest that no more than minimal force was permissible to arrest a non-resisting, or passively resisting, suspect, Officer Elfreich was not entitled to qualified immunity on this record”

Affirmed and Remanded

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7th Circuit Court of Appeals

Case Name: Felix D. Guzman-Rivadeneira v. Loretta E. Lynch

Case No.: 14-3734

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

Focus: Immigration – Removal

Procedural errors preclude analysis of legal claims.

“As our account of the procedural history shows, Guzman-Rivadeneira did not present this argument to the Board. He mentioned to the Board that former counsel’s performance was “inadequate,” but he did not cite Velasquez or argue that he should be relieved of counsel’s concessions because of “egregious circumstances,” much less outline what those egregious circumstances might have been. He tried instead to persuade the Board to treat the issue as a pure issue of law, regardless of the earlier procedural failures. A petitioner’s failure to exhaust an argument in administrative proceedings generally bars him from raising it before a court of appeals. See Duarte-Salagosa v. Holder, 775 F.3d 841, 846 (7th Cir. 2014) (petitioner must have asked Board to consider “same arguments” presented to court, not another argument based on the same evidence); El-Gazawy v. Holder, 690 F.3d 852, 858–59 (7th Cir. 2012) (argument must be presented to Board with enough specificity to allow Board to apply its specialized knowledge and provide reasoning for court to review).”

Petition to Review Denied

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7th Circuit Court of Appeals

Case Name: United States v. Jerry Brown

Case No.: 14-1363; 14-1364;14-1426; 14-2689

Officials: Chief Judge, ROVNER, Circuit Judge, and SHAH, District Judge. *

Focus: General Appeal – Abuse of Discretion

Use of Western Union Records to evidence drug trafficking transactions admissible. Court did not abuse discretion in admitting records into evidence.

“The First and Tenth Circuits have directly addressed West‐ ern Union records. The Tenth Circuit found Western Union records inadmissible to prove the identity of the senders of money, because no identification was required to send money, but the records could be used to prove the identity of recipients because identification was required to receive the money. United States v. McIntyre, 997 F.2d 687, 701–02 (10th Cir. 1993). The First Circuit similarly concluded that Western Union records provided by the company could not be admitted to prove the identity and address of the sender. United States v. Vigneau, 187 F.3d 70, 77 (1st Cir. 1999).  “

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals: District III

Case Name: New Richmond News and Steven Dzubay v. City of New Richmond

Case No.: 214AP1938

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

Focus: Accident Report- Disclosure

New Richmond News and its publisher, Steven Dzubay, (collectively, the Newspaper) requested two accident reports and two incident reports from the City of New Richmond Police Department, pursuant to Wisconsin’s public records law. The police department ultimately provided the reports, but it redacted information identifying individuals referenced in both of the accident reports and one of the incident reports. Relying on Senne v. Village of Palatine, 695 F.3d 597 (7th Cir. 2012), the police department contended these redactions were required by the federal Driver’s Privacy Protection Act (DPPA). The Newspaper then sued the City of New Richmond, alleging the police department’s failure to provide unredacted copies of the requested reports violated the public records law. The circuit court granted the Newspaper judgment on the pleadings, concluding the DPPA did not prohibit the department from providing unredacted copies of the reports. We conclude the police department was permitted to release unredacted copies of the accident reports requested by the Newspaper, pursuant to the DPPA exception allowing disclosures specifically authorized under state law, if such use is related to the operation of a motor vehicle or public safety. See 18 U.S.C. § 2721(b)(14). Wisconsin law specifically requires police departments to release accident reports upon request. See WIS. STAT. § 346.70(4)(f).We therefore affirm the circuit court’s decision with respect to the accident reports.

Recommended for publication

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WI Court of Appeals: District

Case Name: Taft Parsons, Jr. et al v. Associated Banc-Corp, et al

Case No.: 2014AP2581

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

Focus: Waiver of Jury Trial

Taft and Carol Parsons (the Parsons) appeal a nonfinal order of the circuit court granting Associated Banc-Corp’s (the bank) motion to strike the Parsons’ jury demand. The circuit court concluded that Taft knowingly and voluntarily waived the Parsons’ right to a jury trial because he signed several loan documents provided by the bank, one of which waived the right to have a jury resolve any claims against the bank “arising out of or in any way related to this document, any other related document, or any relationship between the borrower and the lender.” (Emphasis added.) For reasons we explain below, we reverse and remand for a jury trial.

Recommended for Publication

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WI Court of Appeals: District III

Case Name: U.S. Bank, National Association et al v. Lore A. Hermes et al

Case No.: 2014AP2904

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

Focus: Foreclosure – Consent Judgment

Lori Hermes, pro se, appeals an order denying her WIS. STAT. § 806.07 motion for relief from a foreclosure judgment granted in favor of Bank of America, N.A. and an order confirming the sheriff’s sale. Hermes argues Bank of America fraudulently obtained the foreclosure of her property and further contends that a consent judgment in a federal case required Bank of America to cease the foreclosure action. Hermes alternatively argues Bank of America agreed to cease the foreclosure action as part of a private settlement with Hermes. Finally, Hermes asserts the circuit court “did not act impartially” in this matter. For the reasons stated below, we reject Hermes’s arguments and affirm the orders.

WI Court of Appeals: District III

Case Name: Christina Michelle Ericksen v. Lawrence Michael Ericksen

Case No.: 2015AP260

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

Focus: Court Error – Divorce

Christina Ericksen, pro se, appeals a divorce judgment, arguing the circuit court erred by declining to award her maintenance. For the reasons set forth below, we affirm.

WI Court of Appeals: District III

Case Name: State of Wisconsin v. Daniel L. Schmidt

Case No.: 2015AP457-CR

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

Focus: Sufficiency of Evidence

Daniel Schmidt appeals a judgment of conviction for two counts of intentional homicide and an order denying his postconviction motion. A jury determined that Schmidt killed Kimberly Rose, with whom he had an affair, and her brother, Leonard Marsh. Schmidt challenges the sufficiency of the evidence supporting only his conviction for killing Marsh. He also argues he is entitled to a new trial because the circuit court erroneously concluded he had waived the marital privilege with respect to his statement to his wife that he would like to “shoot [Rose], then myself.” Finally, Schmidt asserts the court erroneously, and unconstitutionally, excluded expert witness testimony from a child psychologist whom Schmidt retained to testify regarding potential suggestive interview techniques used during police interviews with Rose’s son, D. R. We reject Schmidt’s arguments and affirm the judgment and order. The evidence was plainly sufficient to support the homicide conviction for killing Marsh. The circuit court also correctly concluded Schmidt waived the marital privilege pursuant to WIS. STAT. § 905.11 by disclosing a “significant part” of the communication at issue to a third party when he confirmed to authorities that he told his wife he wanted to kill himself but denied saying he wanted to shoot Rose. 1 Finally, we conclude Schmidt was not constitutionally entitled to present his desired expert testimony regarding suggestive interview techniques, and the circuit court did not otherwise err in excluding it. There was no evidence such techniques were used with D. R., and Schmidt’s expert offered no opinion in that regard. Accordingly, Schmidt failed to establish his expert’s testimony constituted relevant evidence with probative value that was not substantially outweighed by the risk of unfair prejudice to the State.

Recommended for publication

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WI Court of Appeals: District III

Case Name: AllEnergy Corporation et al v. Trempealeau county Environment & Land Use Committee

Case No.: 2015AP491

Officials: Hruz, Seidl and Neubauer, JJ.

Focus: Jurisdiction – Use Permit

AllEnergy Corporation and AllEnergy Silica, Arcadia, LLC (collectively AllEnergy) appeal an order affirming, on certiorari review, the Trempealeau County Environment & Land Use Committee’s decision to deny AllEnergy’s application for a conditional use permit (CUP) to establish a silica sand mine. AllEnergy raises a large number of arguments on appeal. Like the circuit court, we reject AllEnergy’s arguments and conclude the Committee did not exceed its jurisdiction, proceeded on a correct theory of law, did not act arbitrarily, and its decision was supported by substantial evidence. Accordingly, we affirm.

WI Court of Appeals: District III

Case Name: Renee M. Fuller et al v. Donald W. Schultz, M.D et al

Case No.: 2015AP642

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

Focus: Medical Malpractice

Renee and Ronnie Fuller appeal an order denying their motion to declare void a 1994 order dismissing their medical malpractice action. The malpractice action was dismissed due to Ronnie’s failure to comply with discovery. In the present motion and on appeal, the Fullers contend the dismissal order is void because the defendants’ attorneys were not authorized to practice law in Wisconsin. The circuit court denied the motion to declare the dismissal order void for four reasons. We affirm the order for the same reasons.

WI Court of Appeals: District III

Case Name: State of Wisconsin v. Justin Carl Herman Hembel

Case No.: 2015AP1220-CR

Officials: STARK, P.J.

Focus: Motion to Suppress

The State of Wisconsin appeals an order granting Justin Hembel’s motions to dismiss and to suppress evidence obtained during a traffic stop. The State argues the stop of Hembel’s vehicle was reasonable because the officer had probable cause to believe Hembel violated WIS. STAT. § 346.54, entitled “How to park and stop on streets.” Based on the evidence introduced at the suppression hearing, we conclude the officer lacked probable cause to believe Hembel violated § 346.54. We therefore affirm.

WI Court of Appeals: District III

Case Name: State of Wisconsin v. Steven D. Stone

Case No.: 2015AP1363-CR

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

Focus: Double Jeopardy

Steven Stone has petitioned this court for leave to appeal a nonfinal order denying his motion to dismiss on double jeopardy grounds following a mistrial. Stone argues a retrial is barred by double jeopardy principles because he has established, as a matter of law, that the prosecutor in this case committed prosecutorial overreaching by failing to adequately prepare a police witness who inadvertently offered prohibited testimony regarding Stone’s prior offenses. We grant Stone’s petition and reject his legal arguments because they are unsupported by controlling case law. Accordingly, we affirm and remand for further proceedings.

WI Court of Appeals: District II

Case Name: State of Wisconsin v. Timothy L. Reddick

Case No.: 2015AP954-CR

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

Focus: Court Error – Motion to Supress

Timothy L. Reddick appeals from a judgment of conviction rendered after a jury found him guilty of first-degree reckless homicide in violation of WIS. STAT. § 940.02(2)(a) (2013-14) . Reddick contends that the circuit court erred in refusing to suppress statements he made to police after unequivocally invoking his right to counsel. We disagree that Reddick unequivocally invoked his right to counsel and, thus, we affirm the judgment.

WI Court of Appeals: District II

Case Name: State of Wisconsin v. Latasha K. Gatlin

Case No.: 2014AP2351-CR; 2014AP2352-CR

Officials: Lundsten, Higginbotham and Blanchard, JJ

Focus: Ineffective Assistance of Counsel

Latasha Gatlin was tried before a jury and was convicted of six counts of physical child abuse. Her appeal raises several claims of ineffective assistance relating to her trial, and she argues that, post-trial, the circuit court improperly denied her relief based on prosecutor misconduct and newly discovered evidence. We reject all of Gatlin’s arguments, and affirm.

WI Court of Appeals: District

Case Name: Jeanna French et al v. Attorney’s Liability Assurance Society et al

Case No.: 2015AP758

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

Focus: Legal Malpractice

Jeanna French and Paula Van Akkeren filed this legal malpractice action against Quarles & Brady, LLP and its malpractice insurance carrier, alleging that the law firm and its attorney were negligent and breached their fiduciary duties in drafting certain trust documents that established an irrevocable trust in which Jeanna French and Paula Van Akkeren were the beneficiaries.  The circuit court dismissed the beneficiaries’ claims on three grounds: (1) the claims are barred by the six-year statute of limitations; (2) the claims are barred by the doctrine of issue preclusion; and (3) the beneficiaries lack standing. The beneficiaries appeal.

WI Court of Appeals: District IV

Case Name: Pastori M. Balele v. Labor and Industry Review Commission et al

Case No.: 2015AP2417

Officials: Higginbotham, Sherman and Blanchard, JJ

Focus: Issue Preclusion

Pastori Balele appeals a circuit court order that affirmed a decision of the Labor and Industry Review Commission (LIRC) dismissing Balele’s Equal Rights Division (ERD) complaint against PDQ Food Stores, Inc. Balele contends that LIRC wrongfully dismissed his complaint based on issue preclusion. We conclude that issue preclusion applied to bar Balele’s complaint in this case. We affirm.

WI Court of Appeals: District IV

Case Name: Rock County Human Services Department v. W.J.

Case No.: 2015AP2469

Officials: SHERMAN, J.  

Focus: Termination of Parental Rights

W.J. appeals from an order of the circuit court terminating his parental rights to T.J. W.J. contends that Rock County Department of Human Services did not have authority to file a petition to terminate his parental rights to T.J. on the ground of abandonment and that his trial counsel was ineffective for failing to challenge the circuit court’s competency to enter an order terminating his parental rights on that ground. For the reasons discussed below, I conclude that Rock County DHS had authority to file the petition and that W.J.’s trial counsel was not ineffective.

WI Supreme Court Digests

WI Supreme Court

Case Name: Office of Lawyer Regulation v. Marc G. Kurzman

Case No.: 2016AP307-D

Focus: Disciplinary Proceedings – Reciprocal Discipline

Lawyer license to practice law suspended for 60 days

“On March 31, 2016, the parties filed a jointly executed stipulation whereby Attorney Kurzman agrees that by virtue of the Minnesota suspension, he is subject to reciprocal discipline in Wisconsin pursuant to SCR 22.22. He agrees that the factual allegations contained in the OLR’s complaint are accurate and that he committed the professional misconduct charged in the complaint. The stipulation states that Attorney Kurzman does not claim any of the defenses set forth in SCR 22.22(3)(a)-(c). The stipulation states that Attorney Kurzman fully understands the nature of the misconduct allegations against him, his right to contest those allegations, and the ramifications that would follow from this court’s imposition of the stipulated level of discipline. The stipulation indicates that Attorney Kurzman understands his right to counsel and verifies that he is entering into the stipulation knowingly and voluntarily and that his entry into the stipulation represents his decision not to contest this matter. He agrees that it would be appropriate for this court to suspend his license to practice law for a period of 60 days.”

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WI Supreme Court

Case Name: Office of Lawyer Regulation v. Edward W. Matchett

Case No.: 2016AP318-D

Focus: Disciplinary Proceedings

Attorney receives public reprimand

“On March 18, 2016, the parties filed a jointly executed stipulation whereby Attorney Matchett agrees that by virtue of the Arizona admonition, he is subject to reciprocal discipline in Wisconsin pursuant to SCR 22.22. He agrees that the factual allegations contained in the OLR’s complaint are accurate and that he committed the professional misconduct charged in the complaint. The stipulation states that Attorney Matchett does not claim any of the defenses set forth in SCR 22.22(3)(a)-(c). The stipulation states that Attorney Matchett fully understands the nature of the misconduct allegations against him, his right to contest those allegations, and the ramifications that would follow from this court’s imposition of the stipulated level of discipline. The stipulation indicates that Attorney Matchett understands his right to counsel and verifies that he is entering into the stipulation knowingly and voluntarily and that his entry into the stipulation represents his decision not to contest this matter. He agrees that it would be appropriate for this court to publicly reprimand him”

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WI Supreme Court

Case Name: Cheryl M. Sorenson v. Richard A Batchelder et al

Case No.: 2014AP1213

Focus: Personal Service

Personal service did not comply with Section 893.82(5), dismissal of claim proper

“Therefore, we enforce literal compliance with the plain language of Wis. Stat. § 893.82(5) unless such enforcement would lead to an absurd result. Hines v. Resnick, 2011 WI App 163, ¶16, 338 Wis. 2d 190, 807 N.W.2d 687. It necessarily follows that, in order to strictly comply as § 893.82(2m) requires, a claimant must literally follow the words of the statute. This requires a claimant to serve notice of claim on the attorney general by certified mail pursuant to the plain language of § 893.82(5). Kelly v. Reyes, 168 Wis. 2d 743, 747, 484 N.W.2d 388 (Ct. App. 1992) (holding that service by regular mail did not strictly comply with the certified mail requirement even though the attorney general received actual notice). Sorenson’s choice of personal service is simply not service by certified mail. Consequently, we conclude that Sorenson did not strictly comply with § 893.82(5).

Affirmed

Dissenting: ABRAHAMSON, BRADLEY

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WI Supreme Court

Case Name: St. Croix County Department of Health and Human Services v. Michael D. et al

Case No.: 2014AP2431

Focus: Termination of Parental Rights

Notice received by appellants satisfied statutory notice requirement.

“Accordingly, we clarify Steven H., leaving intact its analysis and discussion; however, the conflicting sentence in paragraph 3 is withdrawn3 and we clarify that the last sentence in paragraph 31 shall not be construed to create a last order, six-months rule. The language in the last sentence in paragraph 31 is limited to the facts of Steven H. where only the last order contained the written notice and the child had been out of the home for six months or longer.4 The plain language of § 48.415(2) does not require that the written notice must be in the last order or that six months must pass after the last order before the petition to terminate parental rights may be filed. Accordingly, we reverse the court of appeals’ decision5 and affirm the circuit court’s order6 terminating Juanita’s parental rights to Matthew.”

Reversed

Petition to Terminate Parental Rights Affirmed

Concurring: ROGGENSACK, BRADLEY R. , PROSSER,

Dissenting: ABRAHAMSON, BRADLEY A.W.

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<p align=”center”><b>7<sup>th</sup> Circuit Digests</b></p>

<b>7<sup>th</sup> Circuit Court of Appeals</b>
<b>Case Name: 15-3675, 15-3859</b>
<b>Case No.: Polycon Industries, Inc., v. National Labor Relations Board</b>
<b>Officials: BAUER, POSNER, and FLAUM, Circuit Judges.</b>
<b>Focus: Collective Bargaining Agreement</b>

Appellant objection to signing collective bargaining agreement was frivolous, therefore NLRB Order directing Appellant to sign is enforced.

“final agreement had been reached, its conduct would have been problematic, because the “withdrawal of a proposal by an employer without good cause is evidence of a lack of good faith bargaining by the employer in violation of Section 8(a) of the Act where the proposal has been tentatively agreed upon or acceptance by the Union appears to be imminent.” Mead Corp. v. NLRB, 697 F.2d 1013, 1022 (11th Cir. 1983); see 29 U.S.C. § 158(a)(5). Mead was an “appears to be imminent” case, and the court upheld the Labor Board’s finding of bad faith. The present case is an even stronger case for the union, since it had accepted Johnson’s proposed change regarding right to work, and with that acceptance union and management had an agreement.”

Order Enforced
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<b>7<sup>th</sup> Circuit Court of Appeals</b>
<b>Case Name: Donald L. McDonald v. Marcus Hardy</b>
<b>Case No.: 15-1102</b>
<b>Officials: RIPPLE, WILLIAMS, and HAMILTON, Circuit Judges</b>
<b>Focus:  Cruel &amp; Unusual Punishment</b>

Warden not entitled to summary judgment on claim alleging 8<sup>th</sup> amendment violation due to cancellation of appellant prescription diet

“Warden Hardy and Assistant Warden Edwards touch on, but have not developed, an argument concerning causation. See Flint v. City of Belvidere, 791 F.3d 764, 770 (7th Cir. 2015) (explaining that plaintiff alleging constitutional tort must Warden Hardy and Assistant Warden Edwards touch on, but have not developed, an argument concerning causation. See Flint v. City of Belvidere, 791 F.3d 764, 770 (7th Cir. 2015) (explaining that plaintiff alleging constitutional tort must show that defendant caused injury); Roe, 631 F.3d at 863–64. In their summary judgment motion, the defendants stated only that Mr. McDonald “can provide no evidence that his cholesterol level has been affected by not having a low cholesterol diet.” However, given the diagnosis of a serious medical condition and the interference by Warden Hardy and Assistant Warden Edwards with a physician’s assessment that a low-cholesterol diet was necessary in treating that condition, a jury reasonably could infer that Mr. McDonald was, and continues to be, harmed by the lack of a low-cholesterol diet. See Gayton, 593 F.3d at 624–25 (concluding that jury could infer causation from evidence of serious medical condition and requests for treatment that were ignored); Grieveson v. Anderson, 538 F.3d 763, 779 (7th Cir. 2008) (explaining that jury could infer that delay in providing treatment caused harm). The defendants made no effort to establish that Mr. McDonald’s level of total cholesterol remained steady after his prescription diet was taken away. Nor did they offer an expert’s opinion that Mr. McDonald could not have been harmed by the defendants’ actions. Accordingly, we must return this claim to the district court for further proceedings.”

Affirmed in part
Reversed and remanded in part
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<b>7<sup>th</sup> Circuit Court of Appeals</b>
<b>Case Name: United States of America v. Eugene A. Sweeney</b>
<b>Case No.: 14-3785</b>
<b>Officials: BAUER, WILLIAMS, and HAMILTON, Circuit Judges.</b>
<b>Focus: Motion to Suppress – Pleas &amp; Sentencing</b>

District court failure to state support or findings with special conditions of supervised release yields vacated sentence.

“In a recent series of decisions, however, this court has been subjecting the imposition of supervised release conditions to much closer scrutiny than had been common, and we have done so even when no objections have been raised in district courts. In particular, see United States v. Siegel, 753 F.3d 705 (7th Cir. 2014); United States v. Thompson, 777 F.3d 368 (7th Cir. 2015); United States v. Sewell, 780 F.3d 839 (7th Cir. 2015); United States v. Kappes, 782 F.3d 828 (7th Cir. 2015); but cf. United States v. Silvious, 512 F.3d 364, 371 (7th Cir. 2008) (finding no plain error where district court imposed special conditions of supervised release that were overly broad). The district court neither stated all the conditions orally nor obtained a waiver for doing so, and did not provide any explanation for many of the conditions. In addition, some of the specific conditions imposed here have been found too vague or otherwise improper, though our circuit law is evolving with respect to some of those conditions, such as the requirement that the defendant answer truthfully all inquiries by the probation officer and permit the probation officer to visit his home at any time. See, e.g., United States v. Douglas, 806 F.3d 979, 985–86 (7th Cir. 2015); United States v. Armour, 804 F.3d 859 (7th Cir. 2015) (condition that probation officer could visit anytime between 6 a.m. and 11 p.m.). Based on the logic of our recent cases, we must remand the case.”

Affirmed as to conviction
Vacated and remanded as to sentence
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<b>7<sup>th</sup> Circuit Court of Appeals</b>
<b>Case Name: Eric Trotter et al v. Harleysville Insurance Company</b>
<b>Case No.: 15-3654</b>
<b>Officials: EASTERBROOK and SYKES, Circuit Judges, and ADELMAN, District Judge.* ADELMAN, District Judge</b>
<b>Focus: Underinsured Motorist Coverage – Insurance Policy</b>

Insurance policy clearly states $500,000 limitation on coverage per accident.

“In arguing that the policy is ambiguous, the plaintiffs point to various aspects of the policy language that they believe create uncertainty over which “limit of liability” paragraph is controlling—the one in the Illinois endorsement or the one in the single-limit endorsement. We conclude that the policy is unambiguous and that the paragraph in the single-limit endorsement controls. But even if there were ambiguity over which paragraph is controlling, we could not resolve the ambiguity in a way that removes the per-accident limit. That is because both paragraphs state that coverage is subject to a $500,000 per-accident maximum, regardless of the number of insureds involved in the accident. The only difference between the two paragraphs is that the one in the Illinois endorsement contains a per-person limit in addition to the per-accident limit. Thus, even if we thought that an ambiguity in the policy language required that we disregard the single-limit endorsement and enforce the Illinois endorsement as written (which we do not), the limit for underinsured motorist coverage would still be $500,000 per accident”

Affirmed
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<b>7<sup>th</sup> Circuit Court of Appeals</b>
<b>Case Name: United States of America v. Joyce Adent, et al</b>
<b>Case No.: 15-3554</b>
<b>Officials: BAUER, POSNER, and FLAUM, Circuit Judges.</b>
<b>Focus: Tax Lien – Foreclosure</b>

Appellants fail to provide exceptional circumstances that overcome the governments paramount interest in prompt and certain collection on property subject to a tax lien for failure to pay despite innocent interest in property.

“Additionally, the Supreme Court provided a non‐exhaustive list of four factors to consider when an innocent third party has an interest in the property to be sold, recognizing that “financial compensation may not always be a completely adequate substitute for a roof over one’s head.” Id. at 704. These factors include: (1) the prejudice to the government’s interest as the result of a partial, rather than a total, sale; (2) “whether the third party with a non‐liable separate interest in the property would, in the normal course of events … have a legally recognized expectation that that separate property would not be subject to forced sale by the delinquent taxpayer or his or her creditors”; (3) the prejudice to the third party as the result of a total sale; and (4) “the relative character and value of the non‐liable and liable interests held in the property.” Id. at 710–11.”

Affirmed
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<b>7<sup>th</sup> Circuit Court of Appeals</b>
<b>Case Name: Karla Steimel v. Thomas Maertz et al; Michael Beckem et al v. Indiana Family and Social Services Administration</b>
<b>Case No.: 15-2377; 15-2389</b>
<b>Officials: WOOD, Chief Judge, and KANNE and ROVNER, Circuit Judge</b>
<b>Focus: Health Services</b>

Indiana waiver policy may include violations of integration mandate.

“It also appears, however, that recipients of FS waiver se vices may choose how to spend their allowance. The state argues that the FS waiver actually provides the plaintiffs sufficient waiver services to participate in the community, but that these plaintiffs have used the FS resources in a way that has led to their current isolation. In support of this contention, the state has offered evidence that the plaintiffs could make different choices that would allow them more services in the community. It also offered evidence that the Coles are using a lower dollar amount of services than they did under the A&amp;D waiver, and that Maertz’s situation has been influenced by the fact that his sister is the paid provider of his waiver services. There is therefore a dispute of material fact as to whether the state’s 2011 policy change caused the plaintiffs’ isolation, and summary judgment is inappropriate on that question. See FED. R. CIV. P. 56(a).”

Reversed and Remanded
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<b>7<sup>th</sup> Circuit Court of Appeals</b>
<b>Case Name: Craig J. Kunkel et al v. Commissioner of Internal Revenue</b>
<b>Case No.: 15-2232</b>
<b>Officials: EASTERBROOK and HAMILTON, Circuit Judges, and PEPPER, District Judge.*</b>
<b>Focus: IRS Tax Assessment – Abuse of Discretion</b>

IRS error does not overcome implementation of 20% penalty to taxpayer

“The Tax Court thought reform of the waivers appropriate because only the 2008 tax year had periods of limitations expiring in spring 2012. The forms could not have served any purpose other than extending the time to file assessments for 2008—and you can’t beat something with nothing. Taxpayers’ brief speculates that Bastian thought that he was playing a practical joke on the IRS by signing without alerting it to the scrivener’s error. This seems unlikely; the adverse effect on Bastian’s professional reputation could have been substantial. If the IRS came to conclude that Bastian had tried to hoodwink it, he might find his credentials as a tax representative pulled. The best way to understand what happened is the way the Tax Court did: A typist misread the file, entering the dates on which limitations periods would expire rather than the dates on which the tax years ended, and then everyone else missed that error. We see no clear error or abuse of discretion in that conclusion.”

Affirmed
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<b>7<sup>th</sup> Circuit Court of Appeals</b>
<b>Case Name: David Novoselsky v. Dorothy Brown</b>
<b>Case No.: 15-1609</b>
<b>Officials: POSNER, MANION, and HAMILTON, Circuit Judges.</b>
<b>Focus: Defamation</b>

Allegedly defamatory statements were made as related to respondents official duties.

“We conclude that all of the arguably defamatory communications in this case are protected by this official immunity. First, Brown’s complaint to the ARDC was within the scope of her official duties. Novoselsky’s numerous lawsuits against Brown alleged her dereliction of the office’s responsibilities— failure to segregate court fees into separate bank accounts, failure to audit court funds, and unlawful use of court funds for personal gain. Brown’s complaint focused on these issues and pointed to the Illinois provisions regulating her conduct in each of these areas. To be sure, Brown tested the boundaries of her immunity by remarking in a footnote that Novoselsky is guilty of “racial animus” and citing controversial publications to show the public has an unconscious perception of African Americans as “intellectually and morally inferior.” But taken altogether, the complaint falls within the ambit of Brown’s official duties to oversee the Circuit Court Clerk’s office and to respond to litigation filed against it”

Reversed and Remanded
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<b>7<sup>th</sup> Circuit Court of Appeals</b>
<b>Case Name: United States of America v. Wilson Titus</b>
<b>Case No.: 15-3054</b>
<b>Officials: BAUER, POSNER, and FLAUM, Circuit Judges.</b>
<b>Focus: Pleas &amp; Sentencing</b>

Sentence imposed on appellant unsupported by factual findings.

“Likewise, without knowing how many fraudulent transactions the court attributed to Titus, we cannot evaluate the reasonableness of imposing an 18-level enhancement based on a loss amount of $2.5 million to $7 million. Titus contended that the loss amount was much lower, closer to $1 million. Although we know that the district court disagreed with this low figure, we cannot be certain that the loss amount exceeded $2.5 million without specific factual findings, including the number of fraudulent transactions for which Titus was held responsible.”

Vacated and Remanded
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<b>7<sup>th</sup> Circuit Court of Appeals</b>
<b>Case Name: Jamie Becker v. Zachary Elfreich</b>
<b>Case No.: 15-1363</b>
<b>Officials: FLAUM, MANION, and SYKES, Circuit Judges.</b>
<b>Focus: Excessive Force – Qualified Immunity</b>

Officers excessively violent activities during arrest negate application of qualified immunity.

“When Evansville police attempted to arrest Jamie Becker, Officer Elfreich released his police dog under the belief that Becker was hiding in the house. However, two seconds later, Officer Elfreich discovered Becker had been descending the stairs to surrender with his hands above his head. Nonetheless, Officer Elfreich continued to allow the police dog to bite Becker, while pulling him down three steps and placing his knee on his back and handcuffing him. And Becker suffered serious bodily injury as a result of the dog bite. While it is unclear from the record whether Axel presented a substantial risk of serious risk bodily harm (and thus deadly force), the force was clearly at the more severe end of the force spectrum. A jury could reasonably find such force was excessive. Further, because it was clearly established at the time of Becker’s arrest that no more than minimal force was permissible to arrest a non-resisting, or passively resisting, suspect, Officer Elfreich was not entitled to qualified immunity on this record”

Affirmed and Remanded
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<b>7<sup>th</sup> Circuit Court of Appeals</b>
<b>Case Name: Felix D. Guzman-Rivadeneira v. Loretta E. Lynch</b>
<b>Case No.: 14-3734</b>
<b>Officials: KANNE, SYKES, and HAMILTON, Circuit Judges.</b>
<b>Focus: Immigration – Removal </b>

Procedural errors preclude analysis of legal claims.

“As our account of the procedural history shows, Guzman-Rivadeneira did not present this argument to the Board. He mentioned to the Board that former counsel’s performance was “inadequate,” but he did not cite Velasquez or argue that he should be relieved of counsel’s concessions because of “egregious circumstances,” much less outline what those egregious circumstances might have been. He tried instead to persuade the Board to treat the issue as a pure issue of law, regardless of the earlier procedural failures. A petitioner’s failure to exhaust an argument in administrative proceedings generally bars him from raising it before a court of appeals. See Duarte-Salagosa v. Holder, 775 F.3d 841, 846 (7th Cir. 2014) (petitioner must have asked Board to consider “same arguments” presented to court, not another argument based on the same evidence); El-Gazawy v. Holder, 690 F.3d 852, 858–59 (7th Cir. 2012) (argument must be presented to Board with enough specificity to allow Board to apply its specialized knowledge and provide reasoning for court to review).”

Petition to Review Denied
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<b>7<sup>th</sup> Circuit Court of Appeals</b>
<b>Case Name: United States v. Jerry Brown </b>
<b>Case No.: 14-1363; 14-1364;14-1426; 14-2689</b>
<b>Officials: Chief Judge, ROVNER, Circuit Judge, and SHAH, District Judge. *</b>
<b>Focus: General Appeal – Abuse of Discretion</b>

Use of Western Union Records to evidence drug trafficking transactions admissible. Court did not abuse discretion in admitting records into evidence.

“The First and Tenth Circuits have directly addressed West‐ ern Union records. The Tenth Circuit found Western Union records inadmissible to prove the identity of the senders of money, because no identification was required to send money, but the records could be used to prove the identity of recipients because identification was required to receive the money. United States v. McIntyre, 997 F.2d 687, 701–02 (10th Cir. 1993). The First Circuit similarly concluded that Western Union records provided by the company could not be admitted to prove the identity and address of the sender. United States v. Vigneau, 187 F.3d 70, 77 (1st Cir. 1999).  “

Affirmed
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<p align=”center”><b>WI Court of Appeals Digests</b></p>

<b>WI Court of Appeals: District III</b>
<b>Case Name: New Richmond News and Steven Dzubay v. City of New Richmond</b>
<b>Case No.: 214AP1938</b>
<b>Officials: Stark, P.J., Hruz and Seidl, JJ</b>
<b>Focus: Accident Report- Disclosure </b>

New Richmond News and its publisher, Steven Dzubay, (collectively, the Newspaper) requested two accident reports and two incident reports from the City of New Richmond Police Department, pursuant to Wisconsin’s public records law. The police department ultimately provided the reports, but it redacted information identifying individuals referenced in both of the accident reports and one of the incident reports. Relying on Senne v. Village of Palatine, 695 F.3d 597 (7th Cir. 2012), the police department contended these redactions were required by the federal Driver’s Privacy Protection Act (DPPA). The Newspaper then sued the City of New Richmond, alleging the police department’s failure to provide unredacted copies of the requested reports violated the public records law. The circuit court granted the Newspaper judgment on the pleadings, concluding the DPPA did not prohibit the department from providing unredacted copies of the reports. We conclude the police department was permitted to release unredacted copies of the accident reports requested by the Newspaper, pursuant to the DPPA exception allowing disclosures specifically authorized under state law, if such use is related to the operation of a motor vehicle or public safety. See 18 U.S.C. § 2721(b)(14). Wisconsin law specifically requires police departments to release accident reports upon request. See WIS. STAT. § 346.70(4)(f).We therefore affirm the circuit court’s decision with respect to the accident reports.

Recommended for publication

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<b>WI Court of Appeals: District </b>
<b>Case Name: Taft Parsons, Jr. et al v. Associated Banc-Corp, et al</b>
<b>Case No.: 2014AP2581</b>
<b>Officials: Curley, P.J., Kessler and Brennan, JJ.</b>
<b>Focus: Waiver of Jury Trial</b>

Taft and Carol Parsons (the Parsons) appeal a nonfinal order of the circuit court granting Associated Banc-Corp’s (the bank) motion to strike the Parsons’ jury demand. The circuit court concluded that Taft knowingly and voluntarily waived the Parsons’ right to a jury trial because he signed several loan documents provided by the bank, one of which waived the right to have a jury resolve any claims against the bank “arising out of or in any way related to this document, any other related document, or any relationship between the borrower and the lender.” (Emphasis added.) For reasons we explain below, we reverse and remand for a jury trial.

Recommended for Publication

<a href=”https://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&amp;seqNo=167823″><b>Full Text</b></a><div>

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<b>WI Court of Appeals: District III</b>
<b>Case Name: U.S. Bank, National Association et al v. Lore A. Hermes et al</b>
<b>Case No.: 2014AP2904</b>
<b>Officials: Stark, P.J., Hruz and Seidl, JJ.</b>
<b>Focus: Foreclosure – Consent Judgment</b>

Lori Hermes, pro se, appeals an order denying her WIS. STAT. § 806.07 motion for relief from a foreclosure judgment granted in favor of Bank of America, N.A. and an order confirming the sheriff’s sale. Hermes argues Bank of America fraudulently obtained the foreclosure of her property and further contends that a consent judgment in a federal case required Bank of America to cease the foreclosure action. Hermes alternatively argues Bank of America agreed to cease the foreclosure action as part of a private settlement with Hermes. Finally, Hermes asserts the circuit court “did not act impartially” in this matter. For the reasons stated below, we reject Hermes’s arguments and affirm the orders.

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<b>WI Court of Appeals: District III</b>
<b>Case Name: Christina Michelle Ericksen v. Lawrence Michael Ericksen</b>
<b>Case No.: 2015AP260</b>
<b>Officials: Stark, P.J., Hruz and Seidl, JJ.</b>
<b>Focus: Court Error – Divorce</b>

Christina Ericksen, pro se, appeals a divorce judgment, arguing the circuit court erred by declining to award her maintenance. For the reasons set forth below, we affirm.

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<b>WI Court of Appeals: District III</b>
<b>Case Name: State of Wisconsin v. Daniel L. Schmidt</b>
<b>Case No.: 2015AP457-CR</b>
<b>Officials: Stark, P.J., Hruz and Seidl, JJ.</b>
<b>Focus: Sufficiency of Evidence</b>

Daniel Schmidt appeals a judgment of conviction for two counts of intentional homicide and an order denying his postconviction motion. A jury determined that Schmidt killed Kimberly Rose, with whom he had an affair, and her brother, Leonard Marsh. Schmidt challenges the sufficiency of the evidence supporting only his conviction for killing Marsh. He also argues he is entitled to a new trial because the circuit court erroneously concluded he had waived the marital privilege with respect to his statement to his wife that he would like to “shoot [Rose], then myself.” Finally, Schmidt asserts the court erroneously, and unconstitutionally, excluded expert witness testimony from a child psychologist whom Schmidt retained to testify regarding potential suggestive interview techniques used during police interviews with Rose’s son, D. R. We reject Schmidt’s arguments and affirm the judgment and order. The evidence was plainly sufficient to support the homicide conviction for killing Marsh. The circuit court also correctly concluded Schmidt waived the marital privilege pursuant to WIS. STAT. § 905.11 by disclosing a “significant part” of the communication at issue to a third party when he confirmed to authorities that he told his wife he wanted to kill himself but denied saying he wanted to shoot Rose. 1 Finally, we conclude Schmidt was not constitutionally entitled to present his desired expert testimony regarding suggestive interview techniques, and the circuit court did not otherwise err in excluding it. There was no evidence such techniques were used with D. R., and Schmidt’s expert offered no opinion in that regard. Accordingly, Schmidt failed to establish his expert’s testimony constituted relevant evidence with probative value that was not substantially outweighed by the risk of unfair prejudice to the State.

Recommended for publication

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<b>WI Court of Appeals: District III</b>
<b>Case Name: AllEnergy Corporation et al v. Trempealeau county Environment &amp; Land Use Committee</b>
<b>Case No.: 2015AP491</b>
<b>Officials: Hruz, Seidl and Neubauer, JJ.</b>
<b>Focus: Jurisdiction – Use Permit</b>

AllEnergy Corporation and AllEnergy Silica, Arcadia, LLC (collectively AllEnergy) appeal an order affirming, on certiorari review, the Trempealeau County Environment &amp; Land Use Committee’s decision to deny AllEnergy’s application for a conditional use permit (CUP) to establish a silica sand mine. AllEnergy raises a large number of arguments on appeal. Like the circuit court, we reject AllEnergy’s arguments and conclude the Committee did not exceed its jurisdiction, proceeded on a correct theory of law, did not act arbitrarily, and its decision was supported by substantial evidence. Accordingly, we affirm.

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<b>WI Court of Appeals: District III</b>
<b>Case Name: Renee M. Fuller et al v. Donald W. Schultz, M.D et al</b>
<b>Case No.: 2015AP642</b>
<b>Officials: Stark, P.J., Hruz and Seidl, JJ.</b>
<b>Focus: Medical Malpractice</b>

Renee and Ronnie Fuller appeal an order denying their motion to declare void a 1994 order dismissing their medical malpractice action. The malpractice action was dismissed due to Ronnie’s failure to comply with discovery. In the present motion and on appeal, the Fullers contend the dismissal order is void because the defendants’ attorneys were not authorized to practice law in Wisconsin. The circuit court denied the motion to declare the dismissal order void for four reasons. We affirm the order for the same reasons.

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<b>WI Court of Appeals: District III</b>
<b>Case Name: State of Wisconsin v. Justin Carl Herman Hembel</b>
<b>Case No.: 2015AP1220-CR</b>
<b>Officials: STARK, P.J. </b>
<b>Focus: Motion to Suppress </b>

The State of Wisconsin appeals an order granting Justin Hembel’s motions to dismiss and to suppress evidence obtained during a traffic stop. The State argues the stop of Hembel’s vehicle was reasonable because the officer had probable cause to believe Hembel violated WIS. STAT. § 346.54, entitled “How to park and stop on streets.” Based on the evidence introduced at the suppression hearing, we conclude the officer lacked probable cause to believe Hembel violated § 346.54. We therefore affirm.

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<b>WI Court of Appeals: District III</b>
<b>Case Name: State of Wisconsin v. Steven D. Stone</b>
<b>Case No.: 2015AP1363-CR</b>
<b>Officials: Stark, P.J., Hruz and Seidl, JJ.</b>
<b>Focus: Double Jeopardy</b>

Steven Stone has petitioned this court for leave to appeal a nonfinal order denying his motion to dismiss on double jeopardy grounds following a mistrial. Stone argues a retrial is barred by double jeopardy principles because he has established, as a matter of law, that the prosecutor in this case committed prosecutorial overreaching by failing to adequately prepare a police witness who inadvertently offered prohibited testimony regarding Stone’s prior offenses. We grant Stone’s petition and reject his legal arguments because they are unsupported by controlling case law. Accordingly, we affirm and remand for further proceedings.

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<b>WI Court of Appeals: District II</b>
<b>Case Name: State of Wisconsin v. Timothy L. Reddick</b>
<b>Case No.: 2015AP954-CR</b>
<b>Officials: Neubauer, C.J., Gundrum and Hagedorn, JJ.</b>
<b>Focus: Court Error – Motion to Supress</b>

Timothy L. Reddick appeals from a judgment of conviction rendered after a jury found him guilty of first-degree reckless homicide in violation of WIS. STAT. § 940.02(2)(a) (2013-14) . Reddick contends that the circuit court erred in refusing to suppress statements he made to police after unequivocally invoking his right to counsel. We disagree that Reddick unequivocally invoked his right to counsel and, thus, we affirm the judgment.

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<a href=”https://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&amp;seqNo=167410″><b>Full Text</b></a>

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<b>WI Court of Appeals: District II</b>
<b>Case Name: State of Wisconsin v. Latasha K. Gatlin</b>
<b>Case No.: 2014AP2351-CR; 2014AP2352-CR</b>
<b>Officials: Lundsten, Higginbotham and Blanchard, JJ</b>
<b>Focus: Ineffective Assistance of Counsel</b>

Latasha Gatlin was tried before a jury and was convicted of six counts of physical child abuse. Her appeal raises several claims of ineffective assistance relating to her trial, and she argues that, post-trial, the circuit court improperly denied her relief based on prosecutor misconduct and newly discovered evidence. We reject all of Gatlin’s arguments, and affirm.

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<a href=”https://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&amp;seqNo=167984″><b>Full Text</b></a>

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<b>WI Court of Appeals: District </b>
<b>Case Name: Jeanna French et al v. Attorney’s Liability Assurance Society et al</b>
<b>Case No.: 2015AP758</b>
<b>Officials: Kloppenburg, P.J., Lundsten and Higginbotham, JJ</b>
<b>Focus: Legal Malpractice</b>

Jeanna French and Paula Van Akkeren filed this legal malpractice action against Quarles &amp; Brady, LLP and its malpractice insurance carrier, alleging that the law firm and its attorney were negligent and breached their fiduciary duties in drafting certain trust documents that established an irrevocable trust in which Jeanna French and Paula Van Akkeren were the beneficiaries.  The circuit court dismissed the beneficiaries’ claims on three grounds: (1) the claims are barred by the six-year statute of limitations; (2) the claims are barred by the doctrine of issue preclusion; and (3) the beneficiaries lack standing. The beneficiaries appeal.<div>

<a href=”https://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&amp;seqNo=167930″><b>Full Text</b></a>

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<b>WI Court of Appeals: District IV</b>
<b>Case Name: Pastori M. Balele v. Labor and Industry Review Commission et al</b>
<b>Case No.: 2015AP2417</b>
<b>Officials: Higginbotham, Sherman and Blanchard, JJ</b>
<b>Focus: Issue Preclusion</b>

Pastori Balele appeals a circuit court order that affirmed a decision of the Labor and Industry Review Commission (LIRC) dismissing Balele’s Equal Rights Division (ERD) complaint against PDQ Food Stores, Inc. Balele contends that LIRC wrongfully dismissed his complaint based on issue preclusion. We conclude that issue preclusion applied to bar Balele’s complaint in this case. We affirm.

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<a href=”https://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&amp;seqNo=167921″><b>Full Text</b></a>

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<b>WI Court of Appeals: District IV</b>
<b>Case Name: Rock County Human Services Department v. W.J. </b>
<b>Case No.: 2015AP2469</b>
<b>Officials: SHERMAN, J.   </b>
<b>Focus: Termination of Parental Rights</b>

W.J. appeals from an order of the circuit court terminating his parental rights to T.J. W.J. contends that Rock County Department of Human Services did not have authority to file a petition to terminate his parental rights to T.J. on the ground of abandonment and that his trial counsel was ineffective for failing to challenge the circuit court’s competency to enter an order terminating his parental rights on that ground. For the reasons discussed below, I conclude that Rock County DHS had authority to file the petition and that W.J.’s trial counsel was not ineffective.

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<a href=”https://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&amp;seqNo=167989″><b>Full Text</b></a>

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<p align=”center”><b>WI Supreme Court Digests</b></p>

<b>WI Supreme Court</b>
<b>Case Name: Office of Lawyer Regulation v. Marc G. Kurzman</b>
<b>Case No.: 2016AP307-D</b>
<b>Focus: Disciplinary Proceedings – Reciprocal Discipline</b>

Lawyer license to practice law suspended for 60 days

“On March 31, 2016, the parties filed a jointly executed stipulation whereby Attorney Kurzman agrees that by virtue of the Minnesota suspension, he is subject to reciprocal discipline in Wisconsin pursuant to SCR 22.22. He agrees that the factual allegations contained in the OLR’s complaint are accurate and that he committed the professional misconduct charged in the complaint. The stipulation states that Attorney Kurzman does not claim any of the defenses set forth in SCR 22.22(3)(a)-(c). The stipulation states that Attorney Kurzman fully understands the nature of the misconduct allegations against him, his right to contest those allegations, and the ramifications that would follow from this court’s imposition of the stipulated level of discipline. The stipulation indicates that Attorney Kurzman understands his right to counsel and verifies that he is entering into the stipulation knowingly and voluntarily and that his entry into the stipulation represents his decision not to contest this matter. He agrees that it would be appropriate for this court to suspend his license to practice law for a period of 60 days.”

<a href=”https://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&amp;seqNo=167922″><b>Full Text</b></a><div>

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<b>WI Supreme Court</b>
<b>Case Name: Office of Lawyer Regulation v. Edward W. Matchett</b>
<b>Case No.: 2016AP318-D</b>
<b>Focus: Disciplinary Proceedings</b>

Attorney receives public reprimand

“On March 18, 2016, the parties filed a jointly executed stipulation whereby Attorney Matchett agrees that by virtue of the Arizona admonition, he is subject to reciprocal discipline in Wisconsin pursuant to SCR 22.22. He agrees that the factual allegations contained in the OLR’s complaint are accurate and that he committed the professional misconduct charged in the complaint. The stipulation states that Attorney Matchett does not claim any of the defenses set forth in SCR 22.22(3)(a)-(c). The stipulation states that Attorney Matchett fully understands the nature of the misconduct allegations against him, his right to contest those allegations, and the ramifications that would follow from this court’s imposition of the stipulated level of discipline. The stipulation indicates that Attorney Matchett understands his right to counsel and verifies that he is entering into the stipulation knowingly and voluntarily and that his entry into the stipulation represents his decision not to contest this matter. He agrees that it would be appropriate for this court to publicly reprimand him”

<b><a href=”https://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&amp;seqNo=167924″>Full Text</a></b><div>

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<b>WI Supreme Court</b>
<b>Case Name: Cheryl M. Sorenson v. Richard A Batchelder et al</b>
<b>Case No.: 2014AP1213</b>
<b>Focus: Personal Service </b>

Personal service did not comply with Section 893.82(5), dismissal of claim proper

“Therefore, we enforce literal compliance with the plain language of Wis. Stat. § 893.82(5) unless such enforcement would lead to an absurd result. Hines v. Resnick, 2011 WI App 163, ¶16, 338 Wis. 2d 190, 807 N.W.2d 687. It necessarily follows that, in order to strictly comply as § 893.82(2m) requires, a claimant must literally follow the words of the statute. This requires a claimant to serve notice of claim on the attorney general by certified mail pursuant to the plain language of § 893.82(5). Kelly v. Reyes, 168 Wis. 2d 743, 747, 484 N.W.2d 388 (Ct. App. 1992) (holding that service by regular mail did not strictly comply with the certified mail requirement even though the attorney general received actual notice). Sorenson’s choice of personal service is simply not service by certified mail. Consequently, we conclude that Sorenson did not strictly comply with § 893.82(5).

Affirmed
Dissenting: ABRAHAMSON, BRADLEY
<b> </b>
<a href=”https://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&amp;seqNo=168034″><b>Full Text</b></a><div>

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<b>WI Supreme Court</b>
<b>Case Name: St. Croix County Department of Health and Human Services v. Michael D. et al</b>
<b>Case No.: 2014AP2431</b>
<b>Focus: Termination of Parental Rights</b>

Notice received by appellants satisfied statutory notice requirement.

“Accordingly, we clarify Steven H., leaving intact its analysis and discussion; however, the conflicting sentence in paragraph 3 is withdrawn3 and we clarify that the last sentence in paragraph 31 shall not be construed to create a last order, six-months rule. The language in the last sentence in paragraph 31 is limited to the facts of Steven H. where only the last order contained the written notice and the child had been out of the home for six months or longer.4 The plain language of § 48.415(2) does not require that the written notice must be in the last order or that six months must pass after the last order before the petition to terminate parental rights may be filed. Accordingly, we reverse the court of appeals’ decision5 and affirm the circuit court’s order6 terminating Juanita’s parental rights to Matthew.”

Reversed
Petition to Terminate Parental Rights Affirmed
Concurring: ROGGENSACK, BRADLEY R. , PROSSER,
Dissenting: ABRAHAMSON, BRADLEY A.W.

<a href=”https://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&amp;seqNo=168114″><b>Full Text</b></a><div>

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