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Weekly Case Digests — June 11-June 15, 2018

By: WISCONSIN LAW JOURNAL STAFF//June 15, 2018//

Weekly Case Digests — June 11-June 15, 2018

By: WISCONSIN LAW JOURNAL STAFF//June 15, 2018//

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7th Circuit Digests

7th Circuit Court of Appeals

Case Name: United States of America v. Julius Peterson

Case No.: 17-2062

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

Focus: Sentencing – Enhancement

On June 24, 2015, a grand jury indicted Julius Peterson on two counts of financial institution fraud, one count of making a false statement to a financial institution, and one count of bankruptcy fraud. Specifically, Counts One and Two alleged a violation of 18 U.S.C. § 1344 by submitting false documents in relation to his sale of 7931 S. Union Avenue and 6821 S. Dante Avenue in Chicago, Illinois, Count Three alleged a violation of 18 U.S.C. § 1014 by making a false statement to a financial institution that influenced a mortgage loan for one of those properties, and Count Four alleged that he violated 18 U.S.C. § 152(3) by making false statements in his bankruptcy petition.

Peterson pled guilty to one count of financial institution fraud and one count of bankruptcy fraud. The district court sentenced him to 24 months’ imprisonment, as well as five years of supervised release, and ordered him to pay restitution in the amount of $166,936. On appeal, Peterson raises two challenges to that sentence. First, he asserts that the district court erred in imposing a two‐level enhancement under U.S.S.G. § 2B1.1(b)(10)(C) because Peterson used “sophisticated means.” Second, he argues that the district court erred in failing to provide reasons for the imposition of the terms of supervised release. We consider these issues in turn.

Peterson argues that the district court erred in imposing a two‐level enhancement for the use of sophisticated means, because the facts demonstrated only a garden‐variety mortgage fraud scheme. He points to the language of the enhancement and the Application Note to that provision. Guideline §2B1.1(b)(10)(C) provides for a two‐level enhancement “[i]f the offense otherwise involved sophisticated means,” and Application Note 9(B) states that sophisticated means includes especially complex or especially intricate offense conduct pertaining to the execution or concealment of an offense.

Peterson contends that the conduct in this case does not fall within that definition. He argues that a “genuine U.S. corporate account” was used to undertake the relevant transactions, and therefore this case is not equivalent to the illustrative items such as fictitious entities, corporate shells, or offshore accounts. According to Peterson, the district court erred in crediting the government’s argument that the conduct involved hidden transactions. Peterson contends that the district court was required to make findings that established that his offense conduct involved something akin to the use of fictitious entities, corporate shells, or other offshore accounts.

Peterson cannot demonstrate that the district court committed a procedural error in failing to identify the reasons and apply the § 3553(a) factors. The required procedures were met by adopting the reasons in the PSR. Whether the reasons in the PSR were sufficiently specific to justify any particular discretionary condition is not before us. This case does not involve any substantive challenge. In his opening brief, Peterson never claimed that the reasons provided in the PSR and adopted by the district court were insufficient to support a particular discretionary condition.

We hold only that here, where the defendant had knowledge of the conditions and the reasons in the PSR prior to sentence, and an opportunity to object to those conditions before and at sentencing but raises no claims related to any specific supervised release condition, the court’s adoption of those unchallenged conditions as well as the reasons in the PSR were sufficient to satisfy the procedural requirements.

Affirmed

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7th Circuit Court of Appeals

Case Name: Scott Schmidt v. Brian Foster

Case No.: 17-1727

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

Focus: 6th Amendment Violation

Petitioner Scott Schmidt murdered his wife, Kelly Wing-Schmidt. He admitted the murder but tried to rely on the state-law defense of “adequate provocation” to mitigate the crime from first-to second-degree homicide. A state trial judge denied Schmidt the assistance of his counsel while the judge questioned Schmidt in a pretrial hearing on that substantive issue. Under law clearly established by the Supreme Court of the United States, the evidentiary hearing on that substantive issue was a “critical stage” of Schmidt’s prosecution. By denying Schmidt the assistance of counsel in that critical stage, the state court violated his Sixth Amendment right to counsel.

Schmidt sought post-conviction relief, and the Wisconsin Court of Appeals held that the trial court did not violate Schmidt’s Sixth Amendment right to counsel. That decision was an unreasonable application of clearly established Supreme Court precedent guaranteeing counsel at all critical stages of criminal proceedings, including whenever “potential substantial prejudice to defendant’s rights inheres in the particular confrontation.” Wade, 388 U.S. at 227. Schmidt therefore meets the stringent standards for habeas corpus relief under 28 U.S.C. § 2254(d)(1).

When the State denies a defendant counsel at a critical stage, prejudice is presumed. E.g., Bell v. Cone, 535 U.S. 685, 695–96 (2002); Cronic, 466 U.S. at 658–59. The district court’s judgment is REVERSED and the case is REMANDED with instructions to grant the writ of habeas corpus ordering that Schmidt be released or retried promptly, or perhaps, as the State suggested in the district court, that the state court modify Schmidt’s judgment of conviction to second-degree intentional homicide and re-sentence him accordingly.

Reversed and Remanded

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7th Circuit Court of Appeals

Case Name: United States of America v. Aaron J. Schock

Case No.: 17-3277

Officials: WOOD, Chief Judge, and FLAUM and EASTERBROOK, Circuit Judges.

Focus: Statutory Interpretation – Rulemaking Clause

Aaron Schock resigned from Congress on March 31, 2015, after his constituents responded adversely to disclosures about trips he took at public expense, the expense of his elaborate office furnishings, and how he had applied campaign funds. Twenty months later, Schock was charged in a federal indictment with mail and wire fraud, theft of government funds, making false statements to Congress and the Federal Elections Commission, and filing false tax returns. The grand jury charged Schock with filing false or otherwise improper claims for reimbursement for his travel and furnishings, and with failing to report correctly (and pay tax on) those receipts that count as personal income. Details do not maaer to this appeal.

Schock’s principal argument rests on the Rulemaking Clause (Art. I §5 cl. 2): “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.” The rules about reimbursable expenses were adopted under this clause and, Schock insists, because only the House may adopt or amend its rules, only the House may interpret them. Ambiguity in any rule (or in how a rule applies to a given claim for reimbursement) makes a prosecution impossible, Schock concludes, because that would require a judge to interpret the rules.

Schock contends that, because we do have jurisdiction over arguments based on the Speech or Debate Clause, we should address his other arguments under the rubric of “pendent appellate jurisdiction.” Yet that possibility has been disparaged by the Supreme Court, see Swint v. Chambers County Commission, 514 U.S. 35, 43–51 (1995), and whatever scope it retains after Swint is limited to compelling situations in civil cases. Cf. Breuder v. Board of Trustees, 888 F.3d 266, 271 (7th Cir. 2018). The reasons that Midland Asphalt gave for a strict application of the collateral-order doctrine in criminal cases apply equally well to a request that we entertain pendent appellate jurisdiction. In Abney the Court stated that legal defenses other than personal immunities could not be added to interlocutory criminal appeals. 431 U.S. at 662– 63. It did not employ the phrase “pendent appellate jurisdiction” but effectively foreclosed its use in criminal prosecutions.

If Schock is convicted, he may assert his Rulemaking Clause arguments on appeal from the final decision. Similarly, he may argue that the Rule of Lenity prevents conviction if the House rules about reimbursement are genuinely ambiguous as applied to his situation.

The district court’s decision with respect to the Speech or Debate Clause is affirmed, and the appeal otherwise is dismissed.

Affirmed in part. Dismissed in part.

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7th Circuit Court of Appeals

Case Name: Bobbi Kilburn-Winnie, et al. v. Town of Fortville, et al.

Case No.: 17-2498

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

Focus: Due Process Violation

Bobbi Kilburn‐Winnie and Michelle Allen‐Gregory (collectively, “Appellants”)filed suit against the Town of Fortville, Indiana, Fortville Waterworks, and Fortville Utilities (collectively, “Fortville”), alleging that their Fourteenth Amendment procedural due process rights were violated when Fortville disconnected their water service. The district court granted summary judgment in favor of Fortville, holding that res judicata barred Appellants’ claim because the parties had settled a prior class action that involved the same claim. We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Kenneth Mayle v. United States of America, et al.

Case No.: 17-3221

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

Focus: Equal Protection Claim

Kenneth Mayle, an adherent of what he calls nontheistic Satanism, sued the United States and officials from the United States Mint, Department of the Treasury, and Bureau of Engraving and Printing, to enjoin the printing of the national motto, “In God We Trust,” on United States currency. The district court dismissed his complaint, and we affirm.

Mayle asserts that the motto amounts to a government endorsement of a “monotheistic concept of God.” Because Satanists practice a religion that rejects monotheism, they regard the motto as “an attack on their very right to exist.” Possessing and using currency, Mayle complains, forces him (and his fellow Satanists) to affirm and spread a religious message “committed to the very opposite ideals that he espouses.” In addition, Mayle characterizes the printing of the motto as a form of discrimination against adherents to minority religions because it favors practitioners of monotheistic religions. All this, Mayle asserts, demonstrates that the defendants are violating the Religious Freedom Restoration Act (RFRA), the Fifth Amendment’s Equal Protection clause, and the First Amendment’s Free Speech, Free Exercise, and Establishment clauses.

Affirmed

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7th Circuit Court of Appeals

Case Name: Miguel Macias Mendoza v. Jefferson B. Sessions, III

Case No.: 16-3568

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

Focus: Immigration – Statutory Interpretation

In 1995, Miguel Macias Mendoza (“Macias”) reentered the United States after having been removed only weeks earlier. When he came to the attention of the government more than twenty years later, a deportation officer for U.S.Immigration and Customs Enforcement (“ICE”) determined that Macias had illegally reentered the United States and was subject to reinstatement of the prior removal order. Macias raises a purely legal challenge to this conclusion, contending that, because his reentry was “procedurally regular,” he was not subject to reinstatement but was instead entitled to a full hearing before an immigration judge. We deny the petition for review.

Petition Denied

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: Tracy Barnett and Mogul Enterprises, LLC v. Herrling Clark Law Firm, et al.

Case No.: 2015AP2095

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

Focus: Malpratice – Breach of Ficuicary Duties

Tracy Barnett and Mogul Enterprises, LLC (collectively, Barnett) sued Mark McGinnis and his former law firm, Herrling Clark, for malpractice, breach of fiduciary duties, and breach of contract. The claims involved McGinnis’s assistance in forming a company to purchase real property located in Outagamie County, McGinnis’s participation in that company, and his subsequent acquisition of the company following his election to the Outagamie County Circuit Court. All claims against McGinnis and Herrling Clark were ultimately dismissed, the majority of which after a jury found McGinnis was not negligent in the provision of legal services and did not breach his contractual or fiduciary duties to Barnett.

Barnett raises numerous issues on appeal, and in each case we reject her position. We first conclude the circuit court properly dismissed upon summary judgment Barnett’s claim that McGinnis was liable for failing to inform her of actions taken by one of her own companies. Second, we decline to address whether the court properly granted McGinnis’s and Herrling Clark’s motions for a directed verdict regarding the scope of damages and Herrling Clark’s vicarious liability. Those matters are moot because the jury ultimately found that McGinnis had no liability to Barnett. Finally, we agree with the circuit court that Barnett’s objections to McGinnis’s and Herrling Clark’s bills of costs were untimely filed. Consequently, we affirm the judgment and order.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Mark A. Stevens

Case No.: 2016AP2206-CR

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

Focus: Sufficiency of Evidence

Mark Stevens appeals a judgment convicting him of first-degree sexual assault of a child under the age of thirteen, contrary to WIS.STAT. § 948.02(1)(e) (2015-16). Stevens argues the circuit court erred by admitting the child victim’s videotaped interview at the bench trial. We conclude that Stevens has not overcome the presumption that the error, if any, in admitting the video was harmless. Therefore, we affirm the judgment.

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WI Court of Appeals – District III

Case Name: Robert Corey Burgraff v. Amanda June Burgraff

Case No.: 2016AP2498

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

Focus: Divorce – Child Placement

Amanda Burgraff appeals the child custody, child placement, and property division portions of a judgment dissolving her marriage to Robert Burgraff. Amanda argues the circuit court erroneously exercised its discretion when it: (1) awarded “sole legal custody” of their child to Robert concerning educational decisions; (2) made a prospective child physical placement decision; (3) divided the value of the marital residence; and (4) refused to award Amanda half of Robert’s possible future military pension payments. We reject Amanda’s arguments and affirm the judgment.

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WI Court of Appeals – District I

Case Name: Orlin J. Root-Thalman, et al. v. Eamon Guerin, Guardian

Case No.: 2016AP2513

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

Focus: Due Process Violation

Orlin Root-Thalman and Craig Root-Thalman (collectively, the Root-Thalmans) appeal a circuit court order voiding a quitclaim deed. The order was issued at a hearing on a petition for temporary guardianship of Jane, the grantor of the quitclaim deed. The Root-Thalmans allege the circuit court erred in voiding the quitclaim deed because: (1) the court violated their due process rights to notice and an opportunity to be heard; (2) the court lacked the statutory authority to void a deed during a temporary guardianship proceeding; and (3) the court did not have personal jurisdiction over them. The temporary guardian appointed during the same proceedings, attorney Eamon Guerin, contends the Root-Thalmans waived or forfeited their arguments on appeal. We agree with the Root-Thalmans, reject Guerin’s forfeiture argument, and reverse the order voiding the deed.

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WI Court of Appeals – District I

Case Name: James J. Kaufman v. Scott Walker, et al.

Case No.: 2017AP85

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

Focus: 4th Amendement Violation

James J. Kaufman, pro se, appeals an order dismissing his action challenging the constitutionality of the statute requiring global positioning system (GPS) tracking for sex offenders. In essence, Kaufman contends that (1) the State’s GPS tracking violates the Ex Post Facto Clause because it retroactively imposes lifetime GPS monitoring upon sex offenders, (2) the GPS tracking violates his Fourth Amendment rights, and (3) he was entitled to a particularized due process determination before the State could impose the GPS tracking upon him. We disagree and, therefore, affirm the trial court’s order.

Recommended for Publication

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Howard Grady

Case No.: 2017AP135

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

Focus: Postconviction Motion Denied

Howard Grady appeals from a judgment convicting him of aggravated battery with use of a dangerous weapon, as a repeater and as an act of domestic violence. He also appeals the circuit court’s order denying his motion for postconviction relief. Grady argues: (1) the jury improperly convicted him of both substantial battery and aggravated battery, the former of which is a lesser included offense of the latter; (2) the circuit court erred by failing to place a question from the jury during deliberations into the record; and (3) the circuit court’s sentence is unduly harsh. We affirm.

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WI Court of Appeals – District II

Case Name: J. Steven Tikalsky v. Terry Stevens

Case No.: 2017AP170

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

Focus: Summary Judgment – Constructive Trust

  1. Steven Tikalsky is one of four children. During the later years of his parents’ lives, he became estranged from them and other extended family members, leading his parents to exclude him from having any inheritance. Following the death of his parents, Steven raised multiple claims against all three of his siblings, including respondent Terry Stevens, to try to recover a share of the inheritance. One of his “claims” was for a constructive trust. The circuit court granted summary judgment on the constructive trust “claim” on the ground that when Steven voluntarily withdrew his unjust enrichment claim, he no longer had a basis to seek a constructive trust.

The issue before us is whether Tikalsky has presented enough material on summary judgment to continue seeking a constructive trust. We conclude he has. A constructive trust is a permissible equitable remedy upon a showing that the legal title of some property is held by someone who in equity and good conscience should not be entitled to its beneficial enjoyment where title was obtained by means of actual or constructive fraud, duress, abuse of a confidential relationship, mistake, commission of a wrong, or by any form of unconscionable conduct. Here, Steven is seeking title to funds he alleges were obtained by some measure of untoward conduct on the part of Susan and James, his two other siblings. Even if the specific claim of unjust enrichment itself has been withdrawn, the factual claims undergirding the potential remedy of a constructive trust have been sufficiently established at this stage of the proceedings. Therefore, we reverse the circuit court’s order dismissing the constructive trust “claim.”

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. George W. Schertz

Case No.: 2017AP367-CR

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

Focus: Ineffective Assistance of Counsel

George Schertz appeals a judgment, entered upon a jury’s verdicts, convicting him of operating a motor vehicle while intoxicated as a fifth offense, and of hit-and-run, both counts as a repeater. Schertz also appeals the order denying his motion for postconviction relief. Schertz argues: (1) the circuit court’s method of polling the jury violated his right to have the jury individually polled; and (2) trial counsel was ineffective by failing to demand that each juror be individually polled. We reject Schertz’s arguments and affirm the judgment and order.

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WI Court of Appeals – District I

Case Name: Herbert Raymond Glidewell v. Jill Irene Riley

Case No.: 2017AP414

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

Focus: Child Custody Modification

Jill Irene Riley (f/k/a Jill Irene Glidewell) appeals the order dismissing, on the merits, her motion for review of the family court commissioner’s decision denying her request to modify child custody and placement. The sole issue on appeal is whether in conducting its review, the circuit court held a hearing de novo as required by WIS. STAT. § 757.69(8) (2015- 16). We conclude that it did not. Accordingly, we reverse and remand so that the circuit court can afford Riley the hearing to which she is statutorily entitled.

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WI Court of Appeals – District III

Case Name: John Shiely, et al. v. City of Prescott

Case No.: 2017AP486

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

Focus: Motion for Reflief Denied

John and Helen Shiely (the Shielys), as successors in interest to Michael Doran and Theodore Waldon (collectively the Dorans), appeal an order denying them relief from a judgment entered in 1995. The issues on appeal involve whether the Shielys had standing to bring the motion for relief and whether the circuit court properly exercised its discretion in denying the motion. We affirm.

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WI Court of Appeals – District III

Case Name: City of Green Bay v. Henry Dombrowicki

Case No.: 2017AP606

Officials: HRUZ, J.

Focus: Ordinance Interpretation

Henry Dombrowicki, pro se, appeals an order finding him in violation of certain City of Green Bay ordinances. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Casey M. Fisher

Case No.: 2017AP868

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

Focus: Ineffective Assistance of Counsel

Casey M. Fisher appeals from an order denying without a hearing his February 2, 2017 postconviction motion for a new trial. Fisher was convicted of armed robbery and first-degree intentional homicide while armed. He had filed his first postconviction motion in 1996 following that conviction. At that time, Fisher’s appointed postconviction counsel had advised him that there were no grounds for relief and that he had the following options for pursuing the case: (1) retain private counsel, (2) proceed with the appeal pro se after reviewing postconviction counsel’s case file, and (3) authorize appointed counsel to file a no-merit report. Fisher opted to proceed pro se, reviewing postconviction counsel’s case file and timely filing a motion for a new trial on the grounds of ineffective assistance of counsel. His claim related to two aspects of the trial: trial counsel’s failure to present certain witnesses and trial counsel’s failure to object to alleged misstatements in a police report. This court affirmed the judgment and the order denying his 1996 postconviction motion.

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WI Court of Appeals – District II

Case Name: Thomas Esser, et al. v. Hawkeye-Security Insurance Company

Case No.: 2017AP1007

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

Focus: Failure to State Claim – Court Error

Thomas and Karen Esser appeal from a final order of the circuit court dismissing with prejudice their complaint against the Hawkeye Security Insurance Company, Peerless Indemnity Insurance Company, Indiana Insurance Company and Safeco Insurance Company of America on the grounds that it failed to state a claim upon which relief may be granted and/or was barred by the applicable statute of limitations. The Essers assert the court erred in ordering the complaint dismissed in the first instance and further erred when it denied their motion for leave to amend the complaint, which motion they made at the hearing on the Insurers’ motion to dismiss. We conclude the court properly determined that, as written, the Essers’ complaint fails to state a claim upon which relief may be granted and/or the claims were untimely filed. We also conclude, however, that the court erred in denying the Essers’ motion for leave to amend their complaint because, at the time they made their motion, six months had not yet passed since they filed the complaint and they still had the right to amend it once as a matter of course.
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WI Court of Appeals – District III

Case Name: County of Door v. Donald L. McPhail

Case No.: 2017AP1079

Officials: STARK, P.J.

Focus: OWI – Clerical Error – Revocation of Operating Privilege

Donald McPhail’s privilege to operate a motor vehicle was revoked due to his refusal to submit to a blood test after his arrest for operating a motor vehicle while intoxicated (OWI). On appeal, McPhail argues that an error in the return address on the form providing notice of intent to revoke his operating privilege required the circuit court to dismiss the refusal citation. We reject McPhail’s argument and affirm the order revoking his operating privilege.

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WI Court of Appeals – District IV

Case Name: Town of Holland v. Public Service Commission of Wis., et al.

Case No.: 2017AP1129

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

Focus: Petition for Rehearing Denied

The Town of Holland (the “Town”) appeals an order of the circuit court, as changed and modified by a supplemental order, regarding a decision of the Public Service Commission of Wisconsin (“PSC”) relating to the construction of a high voltage transmission line in the La Crosse area. The circuit court affirmed the PSC’s decision that the transmission line was necessary to provide an adequate supply of electricity to the La Crosse area. The circuit court further held, contrary to the Town’s assertion, that the Environmental Impact Statement (“EIS”) the PSC prepared was not legally insufficient.

However, the circuit court found that the PSC had not provided a rational basis for its determination that it was not practicable to utilize an existing transmission line for a seven-mile portion of the proposed new line located in the Town. The court therefore remanded the matter to the PSC for reevaluation of the siting of that seven-mile portion. The court initially enjoined the continuation of work on that contested portion, but subsequently stayed that injunction in its supplemental order pending the resolution of this appeal.

The Town also appeals the circuit court’s determination that it did not have jurisdiction to review the PSC’s order denying a petition for rehearing on its decision. The PSC cross-appeals on whether the circuit court properly remanded the issue regarding the contested seven-mile portion, and whether the court erred in enjoining work in that specific area. The companies involved in the construction of the transmission line, which are intervenors in this matter, also cross-appeal on that issue: American Transmission Company LLC; Northern States Power Company; Dairyland Power Cooperative; WPPI Energy; SMMPA Wisconsin LLC; and ATC Management, Inc. (collectively the “Companies”).

We conclude that the PSC properly determined that construction of the new transmission line is necessary, and that the EIS prepared by the PSC was not legally insufficient. We therefore affirm the circuit court on those issues. However, we find that the PSC did provide a rational basis for its determination relating to the contested seven-mile portion of the transmission line, and therefore we reverse the circuit court’s order to remand that issue to the PSC. Consequently, we remand this matter to the circuit court to vacate the injunction. Additionally, we determine that the PSC’s order denying the petition for rehearing is judicially reviewable, contrary to the circuit court’s determination that it did not have jurisdiction to review that order. We therefore reviewed the denial order by the PSC, and hold that the PSC properly denied the petition for rehearing.

Recommended for Publication

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Justice G. Armstead

Case No.: 2017AP1586-CR

Officials: DUGAN, J.

Focus: Postdisposition Motion for Relief Denied

Justice G. Armstead appeals an order denying his motion for postdisposition relief. In his motion, Armstead argued that neither the psychiatric opinion evidence nor the trial court’s reasoning applied the proper legal standard for ordering involuntary medication. Because the order for Armstead’s commitment for conditional release expired on August 4, 2017, and he is no longer subject to the order for involuntary medication, the issues presented are moot. Accordingly, we dismiss Armstead’s appeal.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Jeffrey A. Jacobi

Case No.: 2017AP1816

Officials: BRENNAN, P.J.

Focus: OWI – Probable Cause

Jeffrey A. Jacobi seeks reversal of the circuit court’s order revoking his operating privileges for unlawfully refusing a test of his blood for the presence of alcohol. He contends that the arresting police officer lacked probable cause to believe that Jacobi was under the influence of alcohol when he was driving his motorcycle, although he does not dispute that he was under the influence of alcohol seventeen to twenty-two minutes after the accident when he returned to the scene.

The record shows conclusively that the police had direct evidence from which reasonable inferences could be drawn, and those inferences support probable cause that Jacobi was operating his motorcycle while under the influence of an intoxicant. We therefore affirm the revocation order of the circuit court.

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WI Court of Appeals – District II

Case Name: Waukesha County v. M.J.S.

Case No.: 2017AP1843

Officials: HAGEDORN, J.

Focus: Prisoner Involuntary Commitment – Extension

Since 1996, M.J.S. has been involuntarily committed for medication to treat his schizophrenia, and Waukesha County sought extension of that commitment in 2017. M.J.S., however, did not receive the statutorily required explanation of the advantages, disadvantages, and alternatives to the court-ordered medication. The circuit court granted the County’s petition for extension nonetheless. It decided that M.J.S. chose not to hear the advantages and disadvantages by failing to schedule an examination with the appointed physician, and that even if he had received the explanation, he was substantially incapable of applying that information. Because the County failed to prove by clear and convincing evidence that M.J.S. either received the statutorily required explanation pursuant to WIS. STAT. § 51.61(1)(g)4. or affirmatively waived his right to be so advised, we hold that the circuit court erred in extending M.J.S.’s involuntary commitment.

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WI Court of Appeals – District II

Case Name: Winnebago County v. Lesa L. Maus

Case No.: 2017AP1979

Officials: NEUBAUER, C.J.

Focus: Motion to Suppress Evidence Denied

Lesa L. Maus appeals from a judgment of conviction for operating a motor vehicle while under the influence of an intoxicant. Maus challenges the circuit court’s denial of her motion to suppress in which she contends that the police lacked reasonable suspicion to initiate a traffic stop. We disagree and affirm.

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WI Court of Appeals – District II

Case Name: Steve Speckman v. Joseph Fondek

Case No.: 2017AP2279

Officials: NEUBAUER, C.J.

Focus: Eviction – Service of Summons

This appeal addresses time limits for service of a summons and complaint in a WIS. STAT. ch. 799 eviction action. Landlord Steve Speckman filed an eviction complaint against tenant Joseph Fondek, with a return date of October 30, 2017. The circuit court entered judgment after Fondek failed to appear on October 30, 2017. The court subsequently denied Fondek’s motion to reopen on November 7, 2017, without a hearing. Fondek contends that service was improper and the court was without personal jurisdiction. Because the summons and complaint were properly served pursuant to the time limits set forth in WIS. STAT. § 799.16(3), we affirm.

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WI Court of Appeals – District  I

Case Name: State of Wisconsin v. P.J.

Case No.: 2018AP376; 2018AP377; 2018AP378; 2018AP379; 2018AP380; 2018AP381

Officials: KESSLER, J.

Focus: Termination of Parental Rights

P.J. appeals the orders terminating her parental rights to six of her children. P.J. argues that the children are substantially bonded with their mother and that the circuit court erroneously considered whether the foster parents would allow continued contact between the children and their mother. Thus, P.J. contends termination was not in the children’s best interests. We affirm.

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WI Court of Appeals – District IV

Case Name: John Maasch v. Lori Anderson, et al.

Case No.: 2017AP499

Officials: Sherman, Kloppenburg and Fitzpatrick, JJ.

Focus: Support Payment Modification

John Maasch appeals an order of the circuit court increasing his family support payments to his ex-wife, Lori Anderson. John argues that the circuit court erred as a matter of law in concluding that a substantial change of circumstances occurred that warrants a modification of the payments. We disagree and affirm the circuit court’s decision in that regard. John also argues that the circuit court erroneously exercised its discretion in setting the amount of the increased family support payments. Because we cannot discern the basis for the circuit court’s decision concerning the amount of the increase, we agree with John, reverse the circuit court’s order, and remand this matter for further proceedings.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Marcius A. Lee

Case No.: 2017AP930-CR

Officials: Blanchard, Kloppenburg and Fitzpatrick, JJ.

Focus: Motion to Suppress Evidence Denied

Marcius Lee appeals judgments of conviction for first-degree intentional homicide while using a dangerous weapon, armed robbery, and being a felon in possession of a firearm, all as a repeater. Lee argues that the circuit court erred in denying his motion to sequester the victim’s sister during trial. Lee also argues that he was unfairly surprised by the testimony of the victim’s sister. We reject Lee’s arguments and affirm.

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WI Court of Appeals – District IV

Case Name: Gene Ganta v. Darrell Augustine, et al.

Case No.: 2017AP1075

Officials: KLOPPENBURG, J.

Focus: Failure to State Claim

Gene Ganta, pro se, appeals the circuit court’s order dismissing his small claims action against Darrell and Jenny Augustine. Ganta fails on appeal to develop a legal argument that the circuit court erred in dismissing the action, his undeveloped argument is contrary to the law and facts in the record, and he fails to address other independent grounds on which the circuit court dismissed the action. Accordingly, I affirm.

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WI Court of Appeals – District IV

Case Name: AT&T Mobility, LLC, v, Wisconsin Department of Revenue

Case No.: 2017AP1241

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

Focus: Tangible Property Assessments – Court Error – Valuation

The circuit court, pursuant to WIS. STAT. §§ 76.08(1) and 76.18, “redetermined” the Wisconsin Department of Revenue’s 2013 and 2014 assessments of AT&T’s tangible personal property. Following the presentation of evidence, the court granted AT&T limited relief, but denied most of the redetermination relief that AT&T sought. AT&T now seeks reversal and remand for a new court trial. AT&T makes several arguments. AT&T’s main argument is that the circuit court erred when it rejected the valuation opinions of AT&T’s appraiser. AT&T’s arguments fail to persuade us that reversal for a new trial is warranted. We affirm.

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WI Court of Appeals – District IV

Case Name: Dane County v. Damian A. Bethke

Case No.: 2017AP1284

Officials: BLANCHARD, J.

Focus: Motion to Supress Evidence Denied

Damian Bethke appeals a refusal judgment and challenges the circuit court’s order denying his motion to suppress evidence obtained by police leading up to his warrantless arrest on a drunk driving charge. Bethke argues that he was unlawfully seized without the justification of reasonable suspicion or probable cause. Because law enforcement was presented with reasonable suspicion to believe that a traffic violation had occurred, I conclude that law enforcement had a reasonable basis for the temporary investigatory detention. I also conclude that this temporary investigatory detention was not transformed into an arrest by police conduct that Bethke now challenges. Accordingly, I affirm.

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WI Supreme Court Digests

WI Supreme Court

Case Name: State of Wisconsin v. Jamal L. Williams

Case No.: 2018 WI 59

Focus: DNA Surcharge

We review a petition by the State and a cross-petition by Jamal L. Williams challenging the court of appeals’ decision, which held: (1) the mandatory $250 DNA surcharge the circuit court ordered Williams to pay violated the Ex Post Facto Clauses of the Wisconsin and United States Constitutions; and (2) the circuit court did not rely on an improper factor when it sentenced Williams. The State and Williams each petitioned for review on the issues decided against them. The State claims the DNA surcharge statute does not violate the Ex Post Facto Clauses and Williams claims the sentencing court improperly increased his sentence because he exercised his right to object to restitution. We reverse the court of appeals on the DNA surcharge issue and affirm on the sentencing issue.

Reversed and Remanded in part. Affirmed in part.

Concur: ABRAHAMSON, J., concurs (opinion filed).

Dissent:
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Supreme Court Digests

United States Supreme Court

Case Name: Lagos v. United States 

Case No.: 16-1519

Focus: Statutory Interpretation

The Mandatory Victims Restitution Act of 1996 requires defendants convicted of a listed range of offenses to “reimburse the victim for lost income and necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.” 18 U. S. C. §3663A(b)(4) (emphasis added). We must decide whether the words “investigation” and “proceedings” are limited to government investigations and criminal proceedings, or whether they include private investigations and civil proceedings. In our view, they are limited to government investigations and criminal proceedings.

Reversed and Remanded

Dissenting:

Concurring:
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United States Supreme Court

Case Name: Collins v. Virgina

Case No.: 16-1027

Focus: 4th Amendment Violation

This case presents the question whether the automobile exception to the Fourth Amendment permits a police officer, uninvited and without a warrant, to enter the curtilage of a home in order to search a vehicle parked therein. It does not.

Reversed and Remanded

Dissenting: ALITO, J., filed a dissenting opinion.

Concurring: THOMAS, J., filed a concurring opinion.
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United States Supreme Court

Case Name: City of Hays, Kansas, Petitioner v. Matthew Jack Dwight Vogt

Case No.: 16-1495

Focus: Writ of Certiorari

The writ of certiorari is dismissed as improvidently granted. It is so ordered.

Ordered

Dissenting:

Concurring:
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United States Supreme Court

Case Name: Masterpiece Cakeshop, LTD, et al. v. Colorado Civil Rights Commission, et al.

Case No.: 16-111

Focus: 1st Amendment Violation – Free Exercise Clause

The case presents difficult questions as to the proper reconciliation of at least two principles. The first is the authority of a State and its governmental entities to protect the rights and dignity of gay persons who are, or wish to be, married but who face discrimination when they seek goods or services. The second is the right of all persons to exercise fundamental freedoms under the First Amendment, as applied to the States through the Fourteenth Amendment.

The freedoms asserted here are both the freedom of speech and the free exercise of religion. The free speech aspect of this case is difficult, for few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech. This is an instructive example, however, of the proposition that the application of constitutional freedoms in new contexts can deepen our understanding of their meaning.

Whatever the confluence of speech and free exercise principles might be in some cases, the Colorado Civil Rights Commission’s consideration of this case was inconsistent with the State’s obligation of religious neutrality. The reason and motive for the baker’s refusal were based on his sincere religious beliefs and convictions. The Court’s precedents make clear that the baker, in his capacity as the owner of a business serving the public, might have his right to the free exercise of religion limited by generally applicable laws. Still, the delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach. That requirement, however, was not met here. When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires.

Given all these considerations, it is proper to hold that whatever the outcome of some future controversy involving facts similar to these, the Commission’s actions here violated the Free Exercise Clause; and its order must be set aside.

Reversed

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

Concurring: KAGAN, J., filed a concurring opinion, in which BREYER, J., joined. GORSUCH, J., filed a concurring opinion, in which ALITO, J., joined. THOMAS, J., filed an opinion concurring in part and concurring in the judgment, in which GORSUCH, J., joined.
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United States Supreme Court

Case Name: Hughes v. United States

Case No.: 17-155

Focus: Statutory Interpretation – Sentencing Guidelines

The proper construction of federal sentencing statutes and the Federal Rules of Criminal Procedure can present close questions of statutory and textual interpretation when implementing the Federal Sentencing Guidelines. Seven Terms ago the Court considered one of these issues in a case involving a prisoner’s motion to reduce his sentence, where the prisoner had been sentenced under a plea agreement authorized by a specific Rule of criminal procedure. Freeman v. United States, 564 U. S. 522 (2011). The prisoner maintained that his sentence should be reduced under 18 U. S. C. §3582(c)(2) when his Guidelines sentencing range was lowered retroactively. 564 U. S., at 527– 528 (plurality opinion).

No single interpretation or rationale in Freeman commanded a majority of the Court. The courts of appeals then confronted the question of what principle or principles considered in Freeman controlled when an opinion by four Justices and a concurring opinion by a single Justice had allowed a majority of this Court to agree on the judgment in Freeman but not on one interpretation or rule that courts could follow in later cases when similar questions arose under the same statute and Rule.

Marks and the proper interpretation of §3582(c)(2), the Court granted certiorari in the present case. 583 U. S. ___ (2017). The first two questions, relating to Marks, are as follows: (1) “Whether this Court’s decision in Marks means that the concurring opinion in a 4–1–4 decision represents the holding of the Court where neither the plurality’s reasoning nor the concurrence’s reasoning is a logical subset of the other”; and (2) “Whether, under Marks, the lower courts are bound by the four-Justice plurality opinion in Freeman, or, instead, by JUSTICE SOTOMAYOR’s separate concurring opinion with which all eight other Justices disagreed.” Pet. for Cert. i.

The third question is directed to the underlying statutory issue in this case, the substantive, sentencing issue the Court discussed in the three opinions issued in Freeman. That question is: “Whether, as the four-Justice plurality in Freeman concluded, a defendant who enters into a Fed. R. Crim. P. 11(c)(1)(C) plea agreement is generally eligible for a sentence reduction if there is a later, retroactive amendment to the relevant Sentencing Guidelines range.” Pet. for Cert. ii.

Taking instruction from the cases decided in the wake of Freeman and the systemic concerns that have arisen in some Circuits, and considering as well the arguments of the parties as to question three, a majority of the Court in the instant case now can resolve the sentencing issue on its merits. So it will be unnecessary to consider questions one and two despite the extensive briefing and careful argument the parties presented to the Court concerning the proper application of Marks. The opinion that follows resolves the sentencing issue in this case; and, as well, it should give the necessary guidance to federal district courts and to the courts of appeals with respect to plea agreements of the kind presented here and in Freeman.

Reversed and Remanded

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

Concurring: SOTOMAYOR, J., filed a concurring opinion.
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United States Supreme Court

Case Name: Koons, et al. v. United States 

Case No.: 17-5716

Focus: Sentencing Modification

Under 18 U. S. C. §3582(c)(2), a defendant is eligible for a sentence reduction if he was initially sentenced “based on a sentencing range” that was later lowered by the United States Sentencing Commission. The five petitioners in today’s case claim to be eligible under this provision. They were convicted of drug offenses that carried statutory mandatory minimum sentences, but they received sentences below these mandatory minimums, as another statute allows, because they substantially assisted the Government in prosecuting other drug offenders. We hold that petitioners’ sentences were “based on” their mandatory minimums and on their substantial assistance to the Government, not on sentencing ranges that the Commission later lowered. Petitioners are therefore ineligible for §3582(c)(2) sentence reductions.

Affirmed

Dissenting:

Concurring:
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United States Supreme Court

Case Name: Lamar, Archer & Cofrin, LLP v. Appling

Case No.: 16-1215

Focus: Statutory Interpretation – Bankruptcy

The Bankruptcy Code prohibits debtors from discharging debts for money, property, services, or credit obtained by “false pretenses, a false representation, or actual fraud,” 11 U. S. C. §523(a)(2)(A), or, if made in writing, by a materially false “statement . . . respecting the debtor’s . . . financial condition,” §523(a)(2)(B).

This case is about what constitutes a “statement respecting the debtor’s financial condition.” Does a statement about a single asset qualify, or must the statement be about the debtor’s overall financial status? The answer matters to the parties because the false statements at issue concerned a single asset and were made orally. So, if the single-asset statements here qualify as “respecting the debtor’s financial condition,” §523(a)(2)(B) poses no bar to discharge because they were not made in writing. If, however, the statements fall into the more general category of “false pretenses, . . . false representation, or actual fraud,” §523(a)(2)(A), for which there is no writing requirement, the associated debt will be deemed nondischargeable. The statutory language makes plain that a statement about a single asset can be a “statement respecting the debtor’s financial condition.” If that statement is not in writing, then, the associated debt may be discharged, even if the statement was false.

Affirmed

Dissenting:

Concurring:
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United States Supreme Court

Case Name: Alex M. Azar v. Rochelle Garza

Case No.: 17-654

Focus: Writ of Certiorari –  Injunctive Relief  – Abortion

Jane Doe, a minor, was eight weeks pregnant when she unlawfully crossed the border into the United States. She was detained and placed into the custody of the Office of Refugee Resettlement (ORR), part of the Department of Health and Human Services. ORR placed her in a federally funded shelter in Texas. After an initial medical examination, Doe requested an abortion. But ORR did not allow Doe to go to an abortion clinic. Absent “emergency medical situations,” ORR policy prohibits shelter personnel from “taking any action that facilitates an abortion without direction and approval from the Director of ORR.” Plaintiff’s Application for TRO and Motion for Preliminary Injunction in Garza v. Hargan, No. 17–cv–2122 (D DC), Dkt. No. 3–5, p. 2 (decl. of Brigitte Amiri, Exh. A). According to the Government, a minor may “le[ave] government custody by seeking voluntary departure, or by working with the government to identify a suitable sponsor who could take custody of her in the United States.” Pet. for Cert. 18; see also 8 U. S. C. §1229c; 8 CFR §§236.3, 1240.26 (2018).

The litigation over Doe’s temporary restraining order falls squarely within the Court’s established practice. Doe’s individual claim for injunctive relief—the only claim addressed by the D. C. Circuit—became moot after the abortion. It is undisputed that Garza and her lawyers prevailed in the D. C. Circuit, took voluntary, unilateral action to have Doe undergo an abortion sooner than initially expected, and thus retained the benefit of that favorable judgment. And although not every moot case will warrant vacatur, the fact that the relevant claim here became moot before certiorari does not limit this Court’s discretion. See, e.g., LG Electronics, Inc. v. InterDigital Communications, LLC, 572 U. S. ___ (2014) (after the certiorari petition was filed, respondents withdrew the complaint they filed with the International Trade Commission); United States v. Samish Indian Nation, 568 U. S. 936 (2012) (after the certiorari petition was filed, respondent voluntarily dismissed its claim in the Court of Federal Claims); Eisai Co. v. Teva Pharmaceuticals USA, Inc., 564 U. S. 1001 (2011) (before the certiorari petition was filed, respondent’s competitor began selling the drug at issue, which was the relief that respondent had sought); Indiana State Police Pension Trust v. Chrysler LLC, 558 U. S. 1087 (2009) (before the certiorari petition was filed, respondent completed a court-approved sale of assets, which mooted the appeal). The unique circumstances of this case and the balance of equities weigh in favor of vacatur.

The Government also suggests that opposing counsel made “what appear to be material misrepresentations and omissions” that were “designed to thwart this Court’s review.” Pet. for Cert. 26. Respondent says this suggestion is “baseless.” Brief in Opposition 23. The Court takes allegations like those the Government makes here seriously, for ethical rules are necessary to the maintenance of a culture of civility and mutual trust within the legal profession. On the one hand, all attorneys must remain aware of the principle that zealous advocacy does not displace their obligations as officers of the court. Especially in fast-paced, emergency proceedings like those at issue here, it is critical that lawyers and courts alike be able to rely on one another’s representations. On the other hand, lawyers also have ethical obligations to their clients and not all communication breakdowns constitute misconduct. The Court need not delve into the factual disputes raised by the parties in order to answer the Munsingwear question here.

The petition for a writ of certiorari is granted. The Court vacates the en banc order and remands the case to the United States Court of Appeals for the District of Columbia Circuit with instructions to direct the District Court to dismiss the relevant individual claim for injunctive relief as moot.

Vacated and Remanded

Dissenting:

Concurring:
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