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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: United States of America v. Devon M. Howard

Case No.: 17-2412

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

Focus: Motion to Suppress Evidence Denied

In April 2014, a Verizon store in the Milwaukee area was robbed. Prior to the robbery, witnesses in the store noticed a Mercedes sitting in the parking lot for an extended time. Just before the robber entered through the store’s rear door, the Mercedes drove to the back of the store. As the robber fled, the Mercedes sped away at a high speed. Police stopped the Mercedes and arrested its occupants, including defendant. He moved to suppress evidence obtained after his arrest, arguing police lacked probable cause. The district court denied that motion. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: John Doe v. Kirstjen M. Nielsen, et al.

Case No.: 17-2040

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

Focus: Immigration –Conflict of Interest

Plaintiff John Doe seeks lawful permanent residence in the United States under the Employment-Based Immigration: Fifth Preference category (“EB-5”). This visa program requires applicants to demonstrate that they have invested or are currently investing capital in a “new commercial enterprise” within the United States. 8 U.S.C. § 1153(b)(5)(A). To that end, Doe invested $500,000 in Elgin Assisted Living EB-5 Fund, LLC. That entity then loaned funds to Elgin Memory Care, LLC, so it could build and operate a memory care facility in Elgin, Illinois.

This case presents at least two concurrent conflicts of interest, neither of which can be waived by informed client consent. No lawyer could reasonably continue the representation under these circumstances.

Having identified the relevant conflicts of interest, we have the final issue of whether Kameli’s conflicts can be imputed to his associate and Doe’s counsel of record, John Floss. The Illinois rules provide that no lawyer associated in a firm “shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9.” ILL. R. PROF’L CONDUCT R. 1.10(a). This language on its own would bar Floss from representing Doe. An exception arises, however, when “the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.” Id. Kameli’s conflict is plainly personal to him—he alone is in the SEC’s crosshairs—so we must determine whether Kameli’s civil case presents a significant risk of materially limiting Floss’s continued representation of Doe.

We conclude that it does. As discussed, the Kameli Law Group is a small law firm with just three attorneys. Kameli is the only principal, so Floss reports directly to him. This presents an unacceptably high risk of materially limiting Doe’s representation. There is virtually no chance Floss would do anything to upset Kameli’s case. In fact, Floss’s briefing on the conflict-of-interest issue suggests that he would champion Kameli’s cause. The brief goes out of its way to describe the allegations against Kameli as “salacious.” It also lauds the district judge in the SEC’s civil action for “denying the SEC’s motion for a preliminary injunction” against Kameli. None of this is relevant to Doe’s case, and unfortunately, it suggests that Floss’s priority would be to protect Kameli. It is therefore ORDERED that the Kameli Law Group is disqualified from representing Doe in this case. The appeal will be held in abeyance for 60 days to permit Doe to secure substitute counsel.

Ordered

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7^th Circuit Court of Appeals

Case Name: United States of America v. Miles Musgraves

Case No.: 16-4160

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

Focus: Sentencing Guidelines

This is defendant Miles Musgraves’ second appeal from his 2015 convictions and sentences on drug and firearm charges. He was first sentenced as a career offender to 240 months in prison. In Musgraves’ first appeal, we reversed three of his five convictions and remanded for resentencing. On remand the district court found by a preponderance of the evidence that Musgraves engaged in some of the acquitted conduct: drug distribution and possession of a firearm as a felon. The district court also found that, despite the reversed convictions, Musgraves was still a career offender. Upon resentencing, the court imposed the same sentence of 240 months.

In this appeal, Musgraves challenges the district court’s findings that he committed the acquitted conduct and is a career offender. He also argues that imposing the same sentence on remand was substantively unreasonable. We affirm. The district court’s factual findings on the acquitted conduct are supported by a preponderance of the evidence, which is sufficient for purposes of guideline sentencing. As for the career offender enhancement, even if the judge was wrong under the Guidelines, he made clear that any such error would have been harmless. Finally, Musgraves’ sentence is not substantively unreasonable.

The district court adequately explained its sentencing decision here. The court reviewed the § 3553(a) factors at length and explained why the guideline range (without the career criminal enhancement) did not adequately reflect the seriousness of Musgraves’ conduct. See Taylor, 701 F.3d at 1175 (up‐ holding above‐range sentence when district court explained why Guidelines did not reflect seriousness of offense). Musgraves’ willingness to frame Smith and to expose him to up to 30 years in prison is egregious conduct not reflected in the guideline calculations. The district court also considered prior convictions that, due to their age, did not affect Musgraves’ criminal history points. The court found that the prior convictions showed a pattern of gun possession and drug dealing that continued to the present case. That pattern, combined with Musgraves’ lack of verifiable employment history at age 44, caused the court to conclude that Musgraves was likely to offend again. Finally, the court found that a higher sentence was warranted because Musgraves had sold drugs in front of his girlfriend’s children and next to a school. From this, the court concluded that 240 months was the appropriate sentence. The decision was not an abuse of discretion, and the sentence is not unreasonable.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Dennis Franklin, et al.

Case No.: 16-1580; 16-1872

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

Focus: Statutory Interpretation

These consolidated appeals represent another application of the “categorical approach” for applying recidivist statutes. The specific question in these appeals is whether convictions under a portion of the Wisconsin burglary statute, Wis. Stat. § 943.10(1m)(a), qualify as convictions for violent felonies under the federal Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1). The outcome of these appeals depends on whether the Wisconsin statute is “divisible” or not, which depends in turn on the sometimes slippery distinction between a crime’s “elements” and “means.” In short, if the burglary statute is divisible, then we must affirm; if it is not divisible, we must reverse. We find that the statute is divisible, so we affirm.

Decision

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7^th Circuit Court of Appeals

Case Name: James Horton, et al. v. Frank Pobjecky, et al.

Case No.: 17-1757

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

Focus: 4^th Amendment Violation

Sixteen‐year‐old Michael DeAngelo Sago, Jr., and three other young men attempted to rob a pizzeria at gunpoint. Frank Pobjecky, an off‐duty police officer waiting for a pizza, shot and killed Michael.  James Horton, as administrator of Michael’s estate, brought various federal and state claims against Pobjecky and others. The district court granted summary judgment for Defendants on all claims, concluding Pobjecky’s use of deadly force was reasonable and justified, and did not violate the Fourth Amendment. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Precious W. House

Case No.: 15-3474

Officials: BAUER, FLAUM, and ROVNER, Circuit Judges

Focus: Sentencing Guidelines

On March 19, 2015, a jury convicted defendant-appellant Precious House of six counts of bank fraud, in violation of 18 U.S.C. § 1344, as a result of his involvement in a fraudulent automobile loan scheme. At sentencing, the district court determined the appropriate Sentencing Guidelines range was 108 to 135 months’ imprisonment, and sentenced House to serve 108 months. House appeals from that sentence, arguing that the district court improperly applied a three-level enhancement by finding that House was a manager or supervisor of the scheme, pursuant to § 3B1.1(b) of the Sentencing Guidelines. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Mary B. Valencia, et al. v. City of Springfield, Illinois

Case No.: 17-2773

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

Focus: Preliminary Injunction – Court Error

Plaintiffs allege the City of Springfield (“Springfield” or “the City”) unlawfully discriminated against three disabled individuals when it ruled they could no longer occupy a single-family residence located within 600 feet of an existing disabled group home. Finding that plaintiffs possessed a reasonable likelihood of success on the merits, the district court granted them a preliminary injunction and enjoined the City from initiating eviction proceedings while this case is pending. The City appeals. For the reasons stated below, we affirm.

The City contests only a single aspect of the preliminary injunction inquiry: whether plaintiffs are likely to succeed on the merits. In reviewing the grant or denial of a preliminary injunction, this court “examines legal conclusions de novo, findings of fact for clear error, and the balancing of harms for abuse of discretion.” Coronado v. Valleyview Pub. Sch. Dist. 365-U, 537 F.3d 791, 795 (7th Cir. 2008); see also Whitaker, 858 F.3d at 1044. In other words, “[a] district court abuses its discretion when, in conducting its preliminary injunction analysis, it commits a clear error of fact or an error of law.” Girl Scouts, 549 F.3d at 1086. “Absent such errors, we accord a district court’s decisions during the balancing phase of the analysis great deference.” Id.; see also Turnell v. CentiMark Corp., 796 F.3d 656, 662 (7th Cir. 2015) (“[W]e give substantial deference to the court’s weighing of evidence and balancing of the various equitable factors.”).

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. David N. Barnes

Case No.: 17-2574

Officials: FLAUM, EASTERBROOK, and BARRETT, Circuit Judges

Focus: Sentencing Guidelines

David Barnes appeals his sentence. He argues that the district court incorrectly calculated his Guidelines range by counting a local ordinance violation for “Smoking Marihuana at a Public Park” in his criminal history score. Because Barnes has waived this argument, we affirm the district court.

Affirmed

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7^th Circuit Court of Appeals

Case Name: John Doe v. Eric Holcomb

Case No.: 17-1756

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

Judges.

Focus: Immigration – Asylum          

John Doe, whose legal name is Jane Doe, is a transgender man residing in Marion County, Indiana. Though Doe is originally from Mexico, the United States granted him asylum in 2015 because of the persecution he might face in Mexico for being transgender. But this suit arises out of Doe’s treatment in the United States. He alleges that he faces harassment and discrimination in the United States when he gives his legal name or shows his identification bearing it to others. Consequently, Doe seeks to legally change his name from Jane to John so that his name conforms to his gender identity and physical appearance, which are male.

Doe asserts that the Indiana statute governing name changes is unconstitutional because it requires name‐change petitioners to provide proof of U.S. citizenship. Ind. Code § 34‐28‐2‐2.5(a)(5) (2016). As an asylee, Doe can’t provide such proof. He brought this case against the Governor and Attorney General of Indiana, the Marion County Clerk of Court, and the Executive Director of the Indiana Supreme Court Division of State Court Administration in their official capacities. He seeks a declaration that the citizenship requirement violates his First and Fourteenth Amendment rights and an injunction to prevent the defendants from enforcing it.

The district court dismissed Doe’s case against all the defendants for lack of standing after the defendants filed motions to dismiss for lack of subject‐matter jurisdiction. Doe appeals. We review the district court’s dismissal de novo, accepting well‐pleaded allegations as true and drawing reasonable inferences in favor of Doe. See Lewert v. P.F. Chang’s China Bistro, Inc., 819 F.3d 963, 966 (7th Cir. 2016); Evers v. Astrue, 536 F.3d 651, 656 (7th Cir. 2008). We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Vance White

Case No.: 17-1131

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

Focus: Pleas & Sentencing – Sentencing Guidelines

Vance White participated in a wire fraud scheme and pleaded guilty to one count of wire fraud, 18 U.S.C. § 1343, and one count of aggravated identity theft, 18 U.S.C. § 1028A(a)(1). The district court calculated White’s Sentencing Guidelines range based on the amount of loss caused by the entire scheme over four years. During most of that time, though, White was in prison. We conclude that White’s guilty plea did not admit his involvement from the outset of the scheme. No other evidence in the record provides sufficient support to hold White responsible for the entire duration. We therefore vacate his sentence and remand for resentencing.

Vacated and Remanded

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Tyrus Lee Cooper

Case No.: 2016AP375-CR

Officials: Kessler, Brash and Dugan, JJ.

Focus: Plea Withdrawal

Tyrus Lee Cooper appeals a judgment of conviction entered upon his guilty plea to one count of armed robbery. He claims the circuit court erroneously denied his motion to withdraw the plea before sentencing. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Terrance Lavone Egerson

Case No.: 2016AP1045-CR; 2016AP1046-CR; 2016AP1047-CR; 2016AP1048-CR; 2016AP1049-CR

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

Focus: Plea Withdrawal and Ineffective Assistance of Counsel

Terrance Lavone Egerson seeks to withdraw his guilty pleas, post sentencing, based on his claim of manifest injustice due to the alleged ineffective representation he received from trial counsel.  Egerson was initially charged with a total of sixteen felony and misdemeanor charges in five consolidated cases involving his repeated contact with his estranged wife, A.E., in violation of a domestic abuse restraining order, a temporary injunction, and various bail and sentencing no-contact orders. Fifteen of the sixteen charges contained a domestic abuse repeater enhancer. Before trial, as part of a global plea negotiation, the court dismissed all of the domestic abuse repeater enhancers on the six counts to which he was to plead guilty. Then pursuant to the negotiation, Egerson pled guilty to those six counts. The remaining counts were dismissed but read in.

Egerson’s principal ineffectiveness claim is that trial counsel was deficient for failing to file a motion challenging the sufficiency of the complaints as to the fifteen domestic abuse repeater enhancers, which he claims are unsupported in the complaints. Regarding the repeater enhancers, he argues that the relevant statutes require an allegation of physical violence, and none of the complaints alleged that Egerson had committed physical violence. See WIS. STAT. §§ 939.621(1)(b) and (2) and 968.075(1)(a) (2015-16). Additionally he claims trial counsel was ineffective for failing to move to dismiss the felony bail jumping charge in the second case (2013CF1860) and a count of intentionally violating a no-contact order in the first case (2013CF1401). He argues he was prejudiced by trial counsel’s failure to challenge these charges because the repeater enhancers resulted in overcharging, created felonies, and increased his sentencing exposure. He argues that had he been properly charged, his sentencing exposure would only have been twenty years and six months.

The State responds to his repeater enhancer claim arguing that Egerson has failed to show trial counsel was deficient because the facts in the complaints create reasonable inferences of domestic abuse, supporting the charging of the domestic abuse repeater enhancers. But, more to the point, the State argues, Egerson has failed to allege and prove prejudice on any of his three claims. The State bases that on the following facts. First, Egerson makes no claim that he would not have pled guilty but for trial counsel’s ineffectiveness. See State v. Krawczyk, 2003 WI App 6, ¶¶28-29, 259 Wis. 2d 843, 657 N.W.2d 77. Second, all of the repeater enhancers were dismissed from the charges to which he pled guilty. Third, Egerson fails to show actual rather than conceivable prejudice because the sentencing exposure he asserts he should have faced, based on the modification he says counsel should have sought, is speculative and conclusory.

We agree with the State’s analysis. Trial counsel was not deficient with regard to the repeater enhancers because the facts in the complaints, and reasonable inferences therefrom, support the enhancers. Likewise, we conclude that Egerson failed to show that trial counsel was deficient on his other two related claims. But more importantly, even if counsel’s performance was deficient (which we do not find), Egerson has failed to claim, much less show, any reasonable probability of a different result under the well-established test of Strickland. Accordingly, we affirm.

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WI Court of Appeals – District I

Case Name: Paula M. Grigg v. Hudson Specialty Insurance Company, et al.

Case No.: 2016AP1521

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

Focus: Insurance – Duty to Defend

Paula Grigg, as special administrator of the Estate of Raymond Grigg (“Grigg”), appeals an order granting various dispositive motions in favor of Hudson Insurance Company (“Hudson Insurance”) and Hudson Specialty Insurance Company (“Hudson Specialty”). Grigg, a business executive and shareholder until his company was sold, brought this declaratory judgment action to establish his rights under a liability policy Hudson had issued to his former company. The policy included coverage for directors and officers (“D&O”) liability, which insured against loss caused by “wrongful acts” committed by a person acting in his or her capacity as a director or officer of the business. Grigg challenges the circuit court’s determination that Hudson had no duty to defend him in a lawsuit filed in New York.

Specifically, Grigg argues the circuit court improperly granted summary judgment to Hudson because the factual allegations forming the basis for the claims in the New York lawsuit, including his alleged failure to disclose certain information during the sale of his former company, plainly fault Grigg’s conduct as an executive of his former company. Hudson’s primary argument is that it had no duty to defend Grigg because the legal claims advanced in the New York lawsuit were expressly directed at Grigg’s alleged conduct as an individual shareholder and seller of his own stock, not as a company executive.

Based upon our comparison of the relevant policy language with the allegations contained within the New York complaint, we conclude Hudson has failed to demonstrate it had no duty to defend Grigg. The duty-to-defend analysis turns on the facts pled, not the plaintiff’s theory of liability. The factual allegations forming the basis for the claims in the New York lawsuit plainly fault Grigg’s conduct as an executive of his former company (even while also faulting his conduct as a shareholder), which appears to us sufficient to trigger Hudson’s duty to defend. We reach no further conclusion regarding the duty to defend because Grigg has explicitly abandoned his argument that he is entitled to a judgment as a matter of law on the duty to defend and breach issues.

As a corollary, we hold that a third-party complaint does not eliminate a defendant’s liability insurance coverage by purportedly limiting its legal claims to acts or omissions the defendant-insured made in a non-covered capacity, when those same alleged acts or omissions were also made in a covered capacity. In such “concurrent capacity” cases, the insured is entitled to a defense from the insurer if the alleged facts supplying the basis for the claims arguably involve acts or omissions falling within the scope of coverage.

We also reject several other arguments Hudson advances in support of the circuit court’s decision. First, we conclude that, given the state of the record, Hudson Insurance was not properly dismissed as a party. Second, we conclude that, even assuming Grigg failed to provide Hudson with a timely notice of claim, he has satisfied his burden of showing Hudson was not prejudiced by the delay. Third, we reject Hudson’s argument that issue preclusion bars Grigg from pursuing the present appeal against Hudson. Hudson provides no applicable legal authority for its assertion that Grigg cannot appeal the circuit court’s determination as to Hudson without also maintaining an appeal against other defendants concerning Grigg’s claims for indemnification and insurance coverage from those entities.

In all, we conclude Hudson has failed to demonstrate it was entitled to summary judgment as a matter of law. We therefore reverse the grant of summary judgment and remand this matter to the circuit court for a determination of whether Hudson had a duty to defend Grigg and other further proceedings. If, as it appears to us, Hudson did have such a duty and breached that duty, the circuit court must hold further proceedings to determine any damages that may have resulted from that breach.

Recommended for Publication

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. James Melvin Lewis, Jr.,

Case No.: 2016AP2140-CR

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

Focus:  Abuse of Discretion – Postconviction Motion Denied

James Lewis, Jr., appeals a judgment, entered upon a jury’s verdicts, convicting him of attempted first-degree intentional homicide with use of a dangerous weapon; false imprisonment with use of a dangerous weapon; battery in the course of a burglary with use of a dangerous weapon; and two counts of armed robbery with use of force. Lewis also appeals the order denying his postconviction motion for a new trial. Lewis argues the circuit court erroneously exercised its discretion by (1) denying Lewis’s motion to disqualify a witness, and (2) permitting the State to introduce evidence of a restraining order against Lewis. We reject Lewis’s arguments and affirm the judgment and order.

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WI Court of Appeals – District III

Case Name: Tammy Behnke v. Jeffrey Behnke

Case No.: 2016AP2228

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

Focus: Abuse of Discretion – Division of Marital Property

Jeffrey Behnke appeals a judgment of divorce, arguing the circuit court erroneously exercised its discretion in the division of property. We affirm.

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WI Court of Appeals – District I

Case Name: David Oberhofer, et al. v. Vincent Oberhofer

Case No.: 2016AP2304

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

Focus: Trusts & Estates – Distribution of Trust Assets

David Oberhofer, Andrew Oberhofer, Kurt Oberhofer, and Michael Oberhofer (collectively “the Oberhofer sons”) appeal from an order of the trial court directing the distribution of trust assets to the estate of their mother, Hallie Oberhofer; the trial court had granted a motion for distribution made by their father, Vincent Oberhofer, as personal representative for the estate. The Oberhofer sons allege that a written request for the distribution of the funds, which was signed by Hallie before her death, was the result of undue influence or made under duress, or that Hallie was incompetent when she signed it. Thus, they contend that the trial court erred in granting Vincent’s dispositive motion without allowing discovery or conducting an evidentiary hearing on these issues. We agree, and therefore reverse and remand this matter to the trial court for further proceedings.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin, et al. v. Dane County

Case No.: 2017AP2

Officials: Kessler, Brash and Dugan, JJ.

Focus: Open Meetings Law

Richard Zecchino and Adams Outdoor Advertising Limited Partnership (collectively, “Adams”), appeal an order of the circuit court dismissing its action against the Dane County Board of Supervisors and certain members of the Board regarding the renewal of a billboard lease. Adams’s action alleged violations of the open meetings law and sought certiorari review and declaratory relief. We affirm the circuit court.

Recommended for Publication

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Dominique P. Wilder

Case No.: 2017AP38-CR

Officials: Kessler, Brash and Dugan, JJ.

Focus: Sufficiency of Evidence

Dominique P. Wilder appeals the judgment convicting him, after a jury trial, of first-degree reckless homicide by use of a dangerous weapon as a party to a crime. See WIS. STAT. §§940.02(1), 939.63(1)(b), 939.05 (2013-14). Wilder argues: (1) the evidence was insufficient to support a guilty verdict on the charge; (2) a supplemental jury instruction deprived him of a fair trial; and (3) discretionary reversal is warranted. We reject Wilder’s arguments and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin Ex Rel. Gregory S. Gorak v. Michael Meisner

Case No.: 2017AP39

Officials: Kessler, Brash and Dugan, JJ.

Focus: Court Error – Sentence Administration

Gregory Gorak appeals from a circuit court order denying and dismissing his petition for a writ of habeas corpus, an order denying his motion for reconsideration, and an order denying his motion to vacate or expunge those two orders. Gorak argues that the circuit court lacked jurisdiction to review his petition for a writ of habeas corpus because his “entire circuit court record” was before this court on appeal. He also argues that the circuit court erred in finding that his claims were procedurally barred because he contends that they have not all been previously litigated and resolved.

While we agree with the circuit court that it did not lack jurisdiction over the petition for a writ of habeas corpus, we find that not all of Gorak’s claims here are procedurally barred, specifically those that relate to the administration of his sentence by the Department of Corrections (DOC). We therefore affirm in part, reverse in part, and remand to the circuit court for consideration of those arguments.

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WI Court of Appeals – District III

Case Name: Robert Ian Henson v. Patricia Ann Henson

Case No.: 2017AP263

Officials: STARK, P.J.

Focus: Abuse of Discretion – Contempt

Robert Henson was found in contempt of court due to his failure to pay child support. The circuit court denied his postdisposition motion to vacate the contempt finding, and Robert now appeals. We conclude the court properly exercised its discretion in finding Robert in contempt and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. J.W.,

Case No.: 2017AP689; 2017AP690

Officials: DUGAN, J.

Focus: Termination of Parental Rights

J.W. appeals the orders of the trial court terminating her parental rights to her son, L.P.P. II, and her daughter, L.P. She also appeals the orders denying her postdispositional motion where she contended that trial counsel was ineffective (1) in advising J.W. to enter a no-contest plea to the continuing child in need of protective services (CHIPS) ground because her incarceration impeded her ability to complete the conditions for return of the children and (2) failing to do more to find a maternal relative with whom the children could have been placed. J.W. also contended that the trial court should have vacated her no-contest plea because J.W. could not have knowingly and intelligently agreed to adjourn the proceedings to work on conditions for the return of the children given that her ongoing incarceration would have thwarted that goal.

For the reasons stated below, we conclude that the trial court did not err in determining that J.W. was not denied her right to effective assistance of counsel and that J.W. has not established that her no-contest plea was not entered knowingly and intelligently. Therefore, we affirm.

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WI Court of Appeals – District II

Case Name: Lagoon Lane, LLC v. Paul Rice, et al.

Case No.: 2016AP2118

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

Focus: Court Error – Zoning Authority

Lagoon Lane, LLC owns shoreland property in the Town of West Bend in Washington County that it sought to divide into several lots. The Town, however, denied Lagoon Lane’s certified survey map (CSM) seeking subdivision on the grounds that it failed to comply with the Town’s setback, minimum lot size, and frontage requirements. This case comes to us following certiorari review in the circuit court. The question presented is whether the Town may enforce these ordinances and deny the CSM on these grounds. We conclude that the Town was without this authority.

While towns generally possess the authority to enact zoning regulations, the legislature has removed shoreland zoning authority for towns through the enactment of WIS. STAT. §§ 281.31 and 59.692 (2015-16).  We conclude this means that the legislature has withdrawn all exercises of shoreland zoning authority that do not fall within the limited exception in § 59.692(2)(b)— including zoning power that overlaps with subdivision authority. The Town’s setback and minimum lot size requirements are admittedly zoning enactments, and thus have plainly been removed of their efficacy in shoreland areas. The Town’s frontage requirement was enacted under both its zoning and subdivision ordinances. Because the frontage requirement falls within the zoning power, we hold that it is without effect. Therefore, the Town erred by denying the CSM, and we affirm the circuit court’s order so holding.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Oscar J. Martinez-Gonzalez

Case No.: 2017AP1085-CR

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

Focus: Restitution – Time-barred

Oscar J. Martinez-Gonzalez appeals a judgment of conviction and challenges the denial of his motion to vacate an order of restitution. He contends that the arbitration process that determined the amount of restitution disregarded the statutory time limit and other requirements and violated his due process rights. Because Martinez-Gonzalez suffered no prejudice from the untimeliness of the restitution decision and failed to raise his other procedural claims in the circuit court, we affirm.

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WI Court of Appeals – District IV

Case Name: Wells Fargo, N.A. v. Amin U. Shaikh, et al.

Case No.: 2016AP1885

Officials: Sherman, Blanchard and Kloppenburg, JJ.

Focus: Foreclosure – Untimely Filing

This appeal arises from a consolidated case consisting of two actions: (1) a foreclosure action brought by Wells Fargo Bank, N.A., against Amin Shaikh and Naheed Shaikh; and (2) a declaratory judgment action brought by the Shaikhs against Wells Fargo asserting that Wells Fargo lacked the right to enforce the note and mortgage at issue in the foreclosure action. In August 2015, the circuit court entered an order for judgment and judgment in foreclosure in the consolidated case, which stated that, “Wells Fargo is entitled to foreclosure upon the note and mortgage.” In February 2016, the court entered an order in the consolidated case, signed by the judge, dismissing the Shaikhs’ claims against Wells Fargo with prejudice and including the statement, “This is a final judgment for purposes of appeal if signed by a circuit court judge.” In June 2016, the Shaikhs moved the court “to enter a final order for purposes of appeal in this case” because the August 2015 judgment concerning the foreclosure action did not include a statement that it was a final judgment or final order for purposes of appeal. On June 30, 2016, the court entered an order stating that, “WHEREAS the Court does not contemplate any additional matters in litigation at this state of the foreclosure proceeding; IT IS HEREBY ORDERED that this Order shall serve as a final order for purposes of appeal.”

The Shaikhs appeal the June 2016 Order, challenging certain of the circuit court’s rulings leading up to and including the August 2015 Default Foreclosure Judgment. We conclude that this appeal was untimely filed. The February 2016 Dismissal Order was the final order for purposes of this appeal because it disposed of all issues between Wells Fargo and the Shaikhs in both of the actions in the consolidated case. The June 2016 Order did not render the February 2016 Dismissal Order any less final, nor did it extend the time during which the Shaikhs could appeal under WIS. STAT. § 808.04(1) (2015-16). Accordingly, we dismiss this appeal for lack of subject matter jurisdiction because the Shaikhs failed to timely file their appeal within ninety days of the February 2016 Dismissal Order as required by § 808.04(1).

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Robert Larson, Jr.,

Case No.: 2016AP2415

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

Focus: Statutory Interpretation – Supervised Release

Robert Larson appeals an order that denied his motion to enforce a stipulation in which the State agreed not to oppose Larson’s petition for supervised release from a WIS. STAT. ch. 980 commitment in exchange for Larson’s agreement not to file a petition for discharge until after having completed 24 months of uninterrupted supervised release in the community. Larson contends that his ability to obtain supervised release under the stipulation was prevented by the operation of WIS. STAT. § 980.08(5m) (2015-16), which prohibits the placement of persons adjudicated to be sexually violent in any facility that did not exist before January 1, 2006. Larson challenges § 980.08(5m) as unconstitutional both on its face and as applied. For the reasons discussed below, we reject Larson’s challenges to the constitutionality of § 980.08(5m), and affirm the order of the circuit court.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. James M. Kruger

Case No.: 2017AP415-CR

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

Focus: Plea Withdrawal

James Kruger appeals a judgment of conviction for armed robbery, strangulation and suffocation, and false imprisonment, all as a repeater. Kruger argues that the circuit court erroneously exercised its discretion when it denied his motion to withdraw his no contest pleas. Because Kruger did not satisfy his burden of establishing a fair and just reason for plea withdrawal, we affirm.

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WI Court of Appeals – District IV

Case Name: Michael Foley, et al. v. Wisconsin Mutual Insurance Company, et al.

Case No.: 2017AP545

Officials: Sherman, Kloppenburg and Fitzpatrick, JJ.

Focus: Insurance – Negligence Claims

Michael and Rhonda Sue Foley hired Harry Simons, Jr. to remodel their house. Foleys allege in this lawsuit that their house was rendered uninhabitable because of Simons’ negligence during the remodeling. Foleys sued their own insurer, Wisconsin Mutual Insurance Company, Simons, and Simons’ insurer, Hastings Mutual Insurance Company, in the Dane County Circuit Court asserting claims of breach of contract, statutory interest for delay, bad faith, and negligence.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Luis Robert Valdez

Case No.: 2017AP777-CR

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

Focus: Abuse of Discretion – Sentencing

Luis Robert Valdez appeals a judgment convicting him of first-degree sexual assault of a child and exposing genitals to a child, and an order denying his postconviction motion requesting sentencing relief. Valdez argues that the sentencing court erroneously exercised its discretion and that his sentence was unduly harsh. We disagree and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Harold Alex Robinson

Case No.: 2017AP1068-CR

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

Focus: Postconviction Motion Denied

Harold Alex Robinson appeals a judgment of conviction and an order denying postconviction relief. Robinson contends that he was denied the effective assistance of counsel at trial when his counsel failed to present alibi witnesses in his defense. He argues that the circuit court erred by denying his postconviction motion without a hearing. For the reasons set forth below, we agree that the circuit court erred by denying Robinson’s motion without a hearing. We reverse and remand for an evidentiary hearing on the motion.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Sara L. Steppke

Case No.: 2017AP1683-CR

Officials: KLOPPENBURG, J.

Focus: Damages

Sara Steppke appeals the amended judgment of conviction for misdemeanor theft, which added as restitution $16,124.40 for security system upgrades undertaken after the theft was discovered. On appeal, Steppke makes two arguments in support of her contention that the costs of the security system upgrades are not recoverable as restitution under WIS. STAT. § 973.20: (1) the costs of the security system upgrades are prohibited general damages, not special damages; and (2) even if the costs of the security system upgrades are special damages, WIS. STAT. § 973.20(5)(a) limits special damages awarded as restitution to those that could be recovered in a civil action and, here, the security system upgrades would not be recoverable in a civil action for conversion. I reject Steppke’s first argument because I conclude that under controlling case law the security system upgrades are special damages within the meaning of WIS. STAT. § 973.20(5)(a). However, I take the State to concede Steppke’s second argument because the State does not refute that argument in any developed manner in its response brief. Therefore, I reverse.

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WI Court of Appeals – District IV

Case Name: James Edward Grant v. Sarah Elizabeth Reyes

Case No.: 2017AP2187

Officials: BLANCHARD, J

Focus: Small Claims – Frivolous Appeal

James Edward Grant, pro se, appeals a circuit court order dismissing in its entirety his small claims action against Sarah Elizabeth Reyes. Grant’s small claims action stems from an injunction hearing that occurred in Milwaukee County and, borrowing from the words of the circuit court, essentially alleges that Reyes is “slandering him and disrespecting him” through statements in court documents that Reyes filed in the injunction proceeding. Grant’s appellate brief is difficult to understand. However, he may mean to argue that the circuit court erred in concluding that this action consists only of “conclusory allegations” and that it fails to state a cause of action.

Grant’s arguments are incoherent and unsupported, either by citations to the record or to pertinent legal authority. Therefore, I reject as undeveloped whatever arguments Grant intends to make. See WIS. STAT. RULE 809.19 (1)(d) and (e) (setting forth the requirements for briefs); Grothe v. Valley Coatings, Inc., 2000 WI App 240, ¶6, 239 Wis. 2d 406, 620 N.W.2d 463 (regarding arguments not supported by citations to the record), abrogated on other grounds by Wiley v. M.M.N. Laufer Family Ltd. P’ship, 2011 WI App 158, 338 Wis. 2d 178, 807 N.W.2d 236; State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (regarding arguments unsupported by legal authority). Even applying the less stringent standards that this court typically extends to unrepresented litigants in the interests of justice, I would have to create from whole cloth whatever cognizable arguments, if any, Grant may intend to offer that would challenge any specific decision made by the circuit court in this action.

Moreover, as best I can discern, Grant’s intended arguments appear to be wholly without merit. As the circuit court recognized, Grant’s claims all appear to arise out of his discontent with the injunction proceedings in Milwaukee County and are not appropriately raised in this separate small claims action.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Wisconsin Association of State Prosecutors v. Wisconsin Employment Regulations Commission, et al.

Case No.: 2018 WI 17

Focus:  Statutory Authority – Petitions for Election

This is a review of a published decision of the court of appeals, Wis. Ass’n of State Prosecutors v. Wis. Emp’t Relations Comm’n, 2016 WI App 85, 372 Wis. 2d 347, 888 N.W.2d 237, [hereinafter “WASP”], affirming the Milwaukee County circuit court’s1 declaration that the Wisconsin Employment Relations Commission (“WERC”) exceeded its authority under Wis. Stat. ch. 111 (2013-14)2 in promulgating Wis. Admin. Code chs. ERC 70 and 80, and the circuit court’s subsequent order that WERC hold certification elections for the Wisconsin Association of State Prosecutors (“WASP”) and the Service Employees International Union, Local 150 (“SEIU”).

The cause before us consists of five consolidated cases: two petitions for declaratory judgment and writ of prohibition under Wis. Stat. § 227.40 and three petitions for judicial review of an agency decision under Wis. Stat. §§ 227.52 and 227.53. On appeal, WERC argued that the requirement was necessary because, without a petition, it could not otherwise know which labor organizations have an interest in representation, that is, which labor organizations should be included on the ballot. The court of appeals rejected this argument and held that a current representative has a continuing interest in representation. See WASP, 372 Wis. 2d 347, ¶21. The court of appeals then held that “shall” is mandatory in Wis. Stat. §§ 111.70(4)(d)3.b. and 111.83(3)(b), and that, therefore, making annual elections contingent on the filing of a petition for election is in direct conflict with the legislative mandate. Id., ¶¶19, 23. WERC petitioned for review.

There are two issues on this appeal. First, we consider whether WERC exceeded its statutory authority under Wis. Stat. ch. 111 when it promulgated Wis. Admin Code chs. ERC 70 and 80. We conclude that WERC did not exceed its authority because it has express authority under Wis. Stat. ch. 111 to promulgate rules that require a demonstration of interest from labor organizations interested in representing collective bargaining units; consequently, we reinstate WERC’s orders dismissing the Unions’ petitions for election as untimely. Second, we consider the subsidiary issue of whether WERC may decertify a current representative labor organization on September 15 where there are no timely petitions for election filed. We conclude that WERC may decertify a current representative labor organization on September 15, or at the expiration of the collective bargaining agreement, whichever occurs later, where there are no timely petitions for election filed because the plain language of the statute requires WERC to conduct elections on or before December 1. Thus, we reverse the decision of the court of appeals and reinstate WERC’s orders dismissing the Unions’ petitions for election.

Reversed and Reinstated

Concur:

Dissent: A.W. BRADLEY, J. dissents, joined by ABRAHAMSON, J. (opinion filed).

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WI Supreme Court

Case Name: Office of Lawyer Regulation v. Richard W. Voss

Case No.: 2018 WI 18

Focus: Attorney Disciplinary Proceedings

Richard W. Voss has appealed a referee’s report recommending the denial of Attorney Voss’s petition for reinstatement of his license to practice law in Wisconsin. We agree with the referee that Attorney Voss’s license to practice law should not be reinstated at this time. We direct Attorney Voss to pay the costs of the reinstatement proceeding, which totaled $4,034.75 as of November 13, 2017.

Ordered

Concur:

Dissent:

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U.S. Supreme Court Digests

United States Supreme Court

Case Name: David Patchak v. Ryan Zinke, et al.

Case No.: 16-498

Focus: Infringement of Judicial Power – Indian Law

Petitioner, David Patchak, sued the Secretary of the Interior for taking land into trust on behalf of an Indian Tribe. While his suit was pending in the District Court, Congress enacted the Gun Lake Trust Land Reaffirmation Act (Gun Lake Act or Act), Pub. L. 113–179, 128 Stat. 1913, which provides that suits relating to the land “shall not be filed or maintained in a Federal court and shall be promptly dismissed.” Patchak contends that, in enacting this statute, Congress impermissibly infringed the judicial power that Article III of the Constitution vests exclusively in the Judicial Branch. Because we disagree, we affirm the judgment of the United States Court of Appeals for the District of Columbia Circuit.

Affirmed

Dissenting: ROBERTS, C. J., filed a dissenting opinion, in which KENNEDY and GORSUCH, JJ., joined.

Concurring: BREYER, J., filed a concurring opinion. GINSBURG, J., filed an opinion concurring in the judgment, in which SOTOMAYOR, J., joined. SOTOMAYOR, J., filed an opinion concurring in the judgment.

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United States Supreme Court

Case Name: Jennings et al. v. Rodriguez

Case No.: 15-1204

Focus: Immigration – Statutory Interpretation

In this case we are asked to interpret three provisions of U. S. immigration law that authorize the Government to detain aliens in the course of immigration proceedings. All parties appear to agree that the text of these provisions, when read most naturally, does not give detained aliens the right to periodic bond hearings during the course of their detention. But by relying on the constitutional- avoidance canon of statutory interpretation, the Court of Appeals for the Ninth Circuit held that detained aliens have a statutory right to periodic bond hearings under the provisions at issue.

Under the constitutional-avoidance canon, when statutory language is susceptible of multiple interpretations, a court may shun an interpretation that raises serious constitutional doubts and instead may adopt an alternative that avoids those problems. But a court relying on that canon still must interpret the statute, not rewrite it. Because the Court of Appeals in this case adopted implausible constructions of the three immigration provisions at issue, we reverse its judgment and remand for further proceedings.

Reversed and Remanded

Dissenting: BREYER, J., filed a dissenting opinion, in which GINSBURG and SOTOMAYOR, JJ., joined.

Concurring: THOMAS, J., filed an opinion concurring in part and concurring in the judgment, in which GORSUCH, J., joined except for footnote 6.

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United States Supreme Court

Case Name: Merit Management Group, LP v. FTI Consulting, Inc.

Case No.: 16-784

Focus: Bankruptcy – Safe Harbor

To maximize the funds available for, and ensure equity in, the distribution to creditors in a bankruptcy proceeding, the Bankruptcy Code gives a trustee the power to invalidate a limited category of transfers by the debtor or transfers of an interest of the debtor in property. Those powers, referred to as “avoiding powers,” are not without limits, however, as the Code sets out a number of exceptions. The operation of one such exception, the securities safe harbor, 11 U. S. C. §546(e), is at issue in this case.

Specifically, this Court is asked to determine how the safe harbor operates in the context of a transfer that was executed via one or more transactions, e.g., a transfer from A → D that was executed via B and C as intermediaries, such that the component parts of the transfer include A→B→C→D. If a trustee seeks to avoid the A→D transfer, and the §546(e) safe harbor is invoked as a defense, the question becomes: When determining whether the §546(e) securities safe harbor saves the transfer from avoidance, should courts look to the transfer that the trustee seeks to avoid (i.e., A → D) to determine whether that transfer meets the safe-harbor criteria, or should courts look also to any component parts of the overarching transfer (i.e., A → B → C → D)? The Court concludes that the plain meaning of §546(e) dictates that the only relevant transfer for purposes of the safe harbor is the transfer that the trustee seeks to avoid.

Affirmed and Remanded

Dissenting:

Concurring:

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