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Weekly Case Digests – June 15, 2020 – June 19, 2020

By: Rick Benedict//June 19, 2020//

Weekly Case Digests – June 15, 2020 – June 19, 2020

By: Rick Benedict//June 19, 2020//

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7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Scott Hildreth v. Kim Butler, et al.

Case No.: 18-2660

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

Focus: Prisoner – ADA Violation

Scott Hildreth, an inmate at an Illinois maximum-security prison, suffers from Parkinson’s disease. He takes a prescription medication distributed by the prison three times a day to manage his symptoms. On three occasions Hildreth received his medication refill a few days late, causing him to experience withdrawal symptoms. His symptoms also render his handwriting illegible, so Hildreth uses a typewriter to draft documents. He requested to keep that typewriter in his cell, which the prison denied because it was considered contraband. Instead, the prison provided Hildreth with an assistant to help him draft documents and increased access to the library where he can use a typewriter.

Feeling his treatment was lacking, Hildreth sued Wexford Health Sources, Inc. and two jail administrators under 42 U.S.C. § 1983 and the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq., alleging they violated his constitutional and statutory rights. The district court granted summary judgment to the defendants. Because Hildreth has not shown medication delays were a widespread practice or custom at the prison, and he received reasonable accommodations for his Parkinson’s disease, we affirm the district court’s decision.

Affirmed

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7th Circuit Court of Appeals

Case Name: Carlos Alvarez-Espino v. William P. Barr

Case No.: 19-2289

Officials: BRENNAN, SCUDDER, and ST. EVE, Circuit Judges.

Focus: Immigration – Removal Order

Carlos Alvarez‐Espino entered the United States illegally in 1996, settled in Chicago, but later ran into legal trouble and came to the attention of immigration enforcement. During his time here, Alvarez‐Espino assisted law enforcement by helping to solve a 2002 gas station robbery in which he was held at gunpoint. Helping the police made Alvarez‐Espino potentially eligible for a U visa, which could allow him to stay in the United States. He hired immigration counsel, but his lawyer failed to realize that Alvarez‐ Espino had a chance at receiving a U visa and instead pursued another remedy without success. Alvarez‐Espino changed lawyers, but it was too late to reverse course. After protracted proceedings, the Board of Immigration Appeals denied multiple requests for relief, leaving Alvarez‐Espino at risk of removal.

In denying relief, the Board held Alvarez‐Espino to an un‐ duly demanding burden on his allegation of ineffective assistance of counsel. But the law is equally clear that Alvarez‐Espino’s ability to continue pursuing a U visa means that he cannot show prejudice from his attorney’s performance. So we are left to deny his petition for review.

Petition denied

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7th Circuit Court of Appeals

Case Name: Randy McCaa v. Todd Hamilton, et al.,

Case No.: 19-1603

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

Focus: Abuse of Discretion – 8th Amendment Violation

Plaintiff Randy McCaa is a Wisconsin prisoner who alleges that prison officials violated his Eighth Amendment rights by responding with deliberate indifference to his threats to commit suicide or to harm himself in other ways. The district court granted summary judgment for defendants over McCaa’s pro se efforts to oppose the motion. In McCaa v. Hamilton, 893 F.3d 1027, 1034–35 (7th Cir. 2018), we ruled that in denying plaintiff’s fourth motion for recruitment of counsel, the district court had not addressed sufficiently McCaa’s ability to present his case himself. The district court had already denied earlier requests by McCaa to recruit counsel. We were most concerned about the effects of McCaa’s transfer to a different prison where he said he could not locate witnesses or obtain other discovery, as well as the effects of his fifth-grade reading level and serious mental illness. We remanded with instructions to the district court to reconsider recruitment of counsel, but we pointedly did not say that recruitment of counsel would be required.

On remand, the district court took a fresh look at the issue and reached the same decision to not attempt to recruit counsel. McCaa has appealed again, arguing that the district court failed to comply with our mandate. We affirm. Judge Stadtmueller wrote a detailed and persuasive opinion explaining why he did not think this was an appropriate case for attempting recruitment of counsel. He complied with our mandate and did not abuse his discretion in reaching that decision.

As recounted in our prior opinion, 893 F.3d at 1030–31, McCaa sued prison officials for violating the Eighth Amendment through their deliberate indifference to his risk of suicide and self-harm. The district court denied McCaa’s requests to recruit counsel and simultaneously granted the defendants’ motion for summary judgment when it denied McCaa’s renewed request in 2016. The court decided that McCaa’s lack of adequate evidence and his failure to comply with local rules regarding summary judgment (specifically, to cite his evidence properly) doomed his case. Id. at 1033–34. We ruled that the district court had abused its discretion in denying McCaa’s motion for counsel.

On appeal, McCaa argues that the district court refused to comply with our mandate. He contends that the mandate required the court to assess whether, after his prison transfer, he could on his own obtain the discovery that he needed. “The mandate rule requires a lower court to adhere to the commands of a higher court on remand.” Carmody v. Bd. of Trustees of University of Illinois, 893 F.3d 397, 407 (7th Cir. 2018). We review de novo whether the district court complied with our mandate on remand. See EEOC v. Sears, 417 F.3d 789, 795 (7th Cir. 2005). We conclude that it did comply here.

In the end, the difficult mix of factors weighing for and against recruiting counsel for McCaa required a thoughtful exercise of discretion by the district court. Judge Stadtmueller provided such consideration. He did not abuse his discretion in denying McCaa’s renewed motion and in reinstating the earlier grant of summary judgment against McCaa.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Alfred L. Cross

Case No.: 18-3633

Officials: RIPPLE, ROVNER, and BRENNAN, Circuit Judges.

Focus: Plea Withdrawal

Alfred L. Cross pled guilty to five counts of bank fraud, in violation of 18 U.S.C. § 1344(1). Shortly before sentencing, he moved pro se to terminate his counsel, withdraw his guilty plea, and dismiss the case. The district court denied all three motions. He now appeals the court’s denial of his motion to withdraw his plea, and we affirm.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Chase M.A. Boruch

Case No.: 2018AP152

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

Focus: Court Error – Fee Waiver

Chase Boruch, pro se, appeals an order denying his motion to waive the fees associated with the preparation of certain transcripts he requested to facilitate an appeal of an order denying his motion for postconviction relief under WIS. STAT. § 974.06 (2017-18). He contends the circuit court erred by concluding that his § 974.06 motion lacked arguable merit, and therefore denying his transcript fee waiver request pursuant to our supreme court’s decision in State ex rel. Girouard v. Circuit Court for Jackson Cty., 155 Wis. 2d 148, 151, 454 N.W.2d 792 (1990).

The State concedes that to the extent the circuit court applied an “arguable merit” test to Boruch’s transcript fee waiver request, the court erred. The State argues, however, that the court nevertheless properly denied Boruch’s request because Boruch’s WIS. STAT. § 974.06 motion does not pass the proper test—that is, whether it stated a claim upon which relief could be granted.

We agree with the State that an amendment to the statute from which the Girouard court derived its “arguable merit” test, WIS. STAT. § 814.29(1)(c), has clarified the proper test for determining whether an indigent party is entitled to the waiver of a transcript fee. The proper test now is whether the party’s proposed action states a claim upon which relief may be granted. We also agree with the State that, for the reasons explained below, Boruch’s WIS. STAT. § 974.06 motion failed to pass this test. We therefore affirm the order denying Boruch’s request for a waiver of his transcript fee, albeit on different grounds than those relied upon by the circuit court. See State v. Smiter, 2011 WI App 15, ¶9, 331 Wis. 2d 431, 793 N.W.2d 920 (2010) (court of appeals may affirm a circuit court’s decision on different grounds).

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Winston B. Eison

Case No.: 2018AP1058

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

Focus: Ineffective Assistance of Counsel

Winston B. Eison, pro se, appeals an order denying the motion he filed pursuant to WIS. STAT. § 974.06 (2017-18). He seeks a new trial. As grounds, Eison claims that he received ineffective assistance from the attorney who represented him in his first postconviction motion because the attorney failed to assert that Eison was wrongly denied his right to represent himself at trial. The circuit court rejected the claim, and we affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Adam W. Vice

Case No.: 2018AP2220-CR

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

Focus: Motion to Suppress Confession

This case—which is before us for the second time— requires us to determine whether the circuit court properly granted Adam Vice’s motion to suppress his confession to sexually assaulting a four-year-old girl. Vice confessed during an interview that occurred after he failed a polygraph examination. In a previous opinion, we reversed an order suppressing Vice’s confession and remanded for the circuit court to make additional findings of fact as to whether the confession was voluntary. On remand, the court determined Vice’s confession was not voluntary and again granted his suppression motion. The court also addressed—and appeared to agree with—Vice’s assertion that his confession should be suppressed because the polygraph examination and post-polygraph interview were not discrete events.

The State now appeals, arguing the totality of the circumstances establishes that Vice’s confession was voluntary. The State also contends we should not consider Vice’s argument that the polygraph examination and post-polygraph interview were not discrete events because Vice previously conceded that they were discrete events. In the alternative, the State argues the record establishes that the polygraph examination and post-polygraph interview were discrete events.

Because both Vice and the State have briefed the issue and because the circuit court considered it, we exercise our discretion to address Vice’s argument that the polygraph examination and post-polygraph interview were not discrete events. We reject Vice’s argument in that regard. Based on the totality of the circumstances, however, we agree with Vice that his confession during the post-polygraph interview was not voluntary. We therefore affirm the order granting Vice’s motion to suppress his confession.

Recommended for Publication

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Thor. L. Jepsen

Case No.: 2018AP2306-CR

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

Focus: Due Process Violation

Thor Jepsen appeals from a judgment of conviction, following his plea of no contest to third-degree sexual assault, and an order denying his motion for postconviction relief. Jepsen argues his due process rights were violated when the circuit court referenced at sentencing a presentence investigation report (PSI) that suggested Jepsen was a “low-moderate” risk to re-offend, even though a proper tabulation of Jepsen’s Static-99R assessment would have placed him at a “low” risk to re-offend. The court denied Jepsen’s postconviction motion on the grounds of harmless error, stating that it would have imposed the same sentence regardless of whether Jepsen was only a “low” risk to re-offend. We affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Troy R. Lasecki

Case No.: 2018AP2340-CR

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

Focus: Subject-matter Jurisdiction

Troy Lasecki appeals a judgment convicting him of two misdemeanor counts of engaging in unfair trade practices and an order denying his motion for postconviction relief. A jury found Lasecki guilty of failing either to return the entire security deposits to two of his former tenants or to provide statements to those tenants explaining why he was authorized to withhold their respective security deposits. He raises multiple arguments on appeal: (1) the circuit court lacked subject matter jurisdiction because the crimes of which Lasecki was convicted are “not known to law”; (2) if Lasecki’s conduct did constitute a crime, no ordinary person would have sufficient notice that his conduct was criminal; (3) the jury instructions in his case incorrectly stated the law regarding his charged crimes; and (4) the court impermissibly ordered restitution above the victims’ pecuniary losses.

We conclude the circuit court had subject matter jurisdiction over this case. We further conclude that an ordinary person, acting as a residential landlord, would have sufficient notice that it can be a criminal unfair trade practice for a landlord either to withhold amounts of a tenant’s security deposit not reasonably necessary to pay for items authorized by statute or to fail to provide a tenant with a security deposit withholdings statement if some or all of a security deposit is withheld. Accordingly, we affirm those parts of the postconviction order consistent with these conclusions. We agree with Lasecki, however, that the jury instructions in his case were erroneous because they did not correctly state the law. We also agree with Lasecki that the court erred by ordering restitution above the victims’ pecuniary losses. For these reasons, we reverse the judgment of conviction and reverse the postconviction order in part, and we remand for further proceedings consistent with our statutory analysis herein.

Recommended for Publication

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WI Court of Appeals – District III

Case Name: Sanimax LLC, v. Blue Honey Bio-Fuels, Inc., et al.,

Case No.: 2019AP166

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

Focus: Damages and Attorney Fees

Sanimax LLC appeals a judgment awarding money damages and attorney’s fees to Blue Honey Bio-Fuels, Inc., and Coulee Region Bio-Fuels, LLC. Sanimax contends the circuit court erred by: (1) failing to dismiss Blue Honey’s defamation counterclaim on the ground that it failed to comply with the heightened pleading standard set forth in WIS. STAT. § 802.03(6) (2017-18); and (2) awarding Blue Honey attorney’s fees under WIS. STAT. § 134.90(4)(c). We conclude that Sanimax forfeited its first argument and that its second argument lacks merit. Consequently, we affirm

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Brittany S. Baier

Case No.: 2019AP389-CR

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

Focus: Extraneous Information – Prejudicial Effect on Jury

Brittany S. Baier appeals from a judgment of conviction for one count of first-degree intentional homicide and one count of being a felon in possession of a firearm, contrary to WIS. STAT. §§ 940.01(1)(a) and 941.29(1m)(a) (2015-16). Baier argues that she is entitled to a new trial because a juror downloaded a guide for jury deliberations from the internet and shared it with other jurors during deliberations.  We agree with the trial court that Baier is not entitled to a new trial because the extraneous information that was improperly brought to the jury room would not have had a prejudicial effect on a hypothetical average jury. Therefore, we affirm.

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WI Court of Appeals – District I

Case Name: Kohner Mann & Kailas SC, v. Metallurgical Associates, Inc., et al.,

Case No.: 2019AP458

Officials: DONALD, J.

Focus: Abuse of Discretion – Contempt Motion

Robert J. Hutchinson, pro se, appeals an order of the circuit court denying his motion for contempt against Kohner Mann & Kailas SC, and The North River Insurance Co. (collectively, KMK), granting KMK’s motion for contempt against Robert Hutchinson, and barring Robert from filing additional motions relating to the case underlying this appeal. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Devontae Cornail Stinson

Case No.: 2019AP494-CR

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

Focus: Ineffective Assistance of Counsel

Deyontae Cornail Stinson appeals a judgment of conviction, following a jury trial, of five charges. Stinson also appeals the order denying his postconviction motion for relief.  On appeal, Stinson argues that he was entitled to a Machner hearing because his postconviction motion alleged sufficient factual allegations that trial counsel was ineffective for failing to: (1) sever the felon in possession charge that stemmed from Stinson’s cell phone video; (2) move to exclude the video in its entirety; (3) object to Xiong’s testimony about ballistics testing; (4) object to Newport’s testimony translating the slang Stinson spoke in his video; (5) object to testimony about the August 17, 2015 traffic stop; (6) object to Xiong’s testimony about a second firearms test; and (7) object to the admission of Stinson’s January 2016 statements to police. Stinson also argues that the cumulative effect of counsel’s deficiencies resulted in cumulative prejudice. We address each issue. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Marcus A. Miller

Case No.: 2019AP769-CR

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

Focus: Ineffective Assistance of Counsel

Marcus A. Miller appeals from a judgment of conviction for two counts of robbery of a financial institution and one count of attempted robbery of a financial institution, all as a party to a crime. See WIS. STAT. §§ 943.87, 939.32, and 939.05 (2015-16). Miller, who was found guilty of these crimes after a trial to the court, also appeals from an order denying his postconviction motion seeking a new trial. Miller argues that he is entitled to a new trial because his trial counsel provided ineffective assistance by failing to serve the State with a statutory discovery demand pursuant to WIS. STAT. § 971.23, which Miller claims prevented trial counsel from moving to prevent the testimony of two witnesses. We affirm.

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WI Court of Appeals – District III

Case Name: Eau Claire County Department of Human Services v. S.E.,

Case No.: 2019AP894

Officials: Sheila T. Reiff, Clerk of Court of Appeals

Focus: Amended Opinion

PLEASE TAKE NOTICE that corrections were made to paragraph 28 in the above-captioned opinion which was released on May 13, 2020. A corrected electronic version in its entirety is available on the court’s website at www.wicourts.gov.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Angelo E. Cantrell

Case No.: 2019AP1292-CR

Officials: Brash, P.J., Blanchard and Donald, JJ.

Focus: Sufficiency of Evidence

Angelo E. Cantrell appeals a judgment, entered upon a jury’s verdict, convicting him of possessing a firearm while a felon. He alleges that the evidence was insufficient to support the conviction and that the circuit court wrongly admitted certain evidence. We reject his claims and affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Donald Simon Mullen

Case No.: 2019AP1187; 2019AP1188

Officials: NEUBAUER, C.J.

Focus: OWI – Reasonable Suspicion

Donald Simon Mullen appeals from judgments convicting him for refusal to take a test for intoxication and for operating a motor vehicle while intoxicated (OWI) (first offense) and challenges the denial of his motion to suppress. He contends an officer seized him without reasonable suspicion. We reject his challenges and affirm.

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WI Court of Appeals – District II

Case Name: Winnebago County v. L.F.G.,

Case No.: 2019AP2010

Officials: REILLY, P.J.

Focus: Prisoner – Involuntary Commitment

“Emily” appeals from an order extending her involuntary commitment for twelve months and an order for involuntary medication and treatment. Emily argues that Winnebago County failed to prove by clear and convincing evidence that she is dangerous to herself or others. As the evidence presented at Emily’s commitment hearing fails to support extending the commitment, we reverse and remand.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Raynard R. Jackson

Case No.: 2019AP24-CR

Officials: Blanchard, Graham and Nashold, JJ.

Focus: Due Process Violation

Raynard R. Jackson appeals a judgment, entered upon a jury’s guilty verdict, convicting him of throwing or expelling bodily substances, while a prisoner, at or toward a prison officer. Jackson argues that the judgment should be vacated and the charge dismissed because the State destroyed exculpatory evidence before trial in violation of his due process rights. We affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin ex rel. Fernando Torres v. Robert Humphreys

Case No.: 2019AP628

Officials: Blanchard, Kloppenburg, and Nashold.

Focus: Prisoner – Certiorari Review

Fernando Torres, a prison inmate, seeks certiorari review of an order denying his appeal from a prison disciplinary decision. He raises both substantive and procedural issues. We reject all of Torres’ arguments and affirm.

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WI Court of Appeals – District IV

Case Name: Daniel J. Frank, et al., v. Randy Yajcharthao, et al.,

Case No.: 2019AP843

Officials: Blanchard, Kloppenburg, and Graham, JJ.

Focus: Landlord Tenant – Damages  

Daniel Frank and Daphne Frank (collectively, “the landlords”) rented a single-family residence to Randy Yajcharthao and Phutson Yajcharthao (collectively, “the tenants”) under a series of lease agreements that allowed the tenants to reside in the house for approximately 4-1/2 years. After the tenants and their minor children moved out, the landlords sued the tenants for breach of the agreements. The landlords alleged that the tenants were responsible for multiple forms of damage to aspects of the rental property that were not the result of normal wear and tear. After taking evidence at a bench trial and considering post-trial briefing, the circuit court determined that the tenants had breached the agreements by causing “substantial damages” of a “ubiquitous nature.” The court ruled that a “fair and reasonable approximation” of damages is $22,402.37, and that, after taking into account set offs in favor of the tenants, the landlords are entitled to a judgment for $17,540.53. The tenants appeal. They primarily argue that the circuit court clearly erred in finding that various components of the $22,402.37 damages amount awarded were damages for which the tenants were responsible. We conclude that the tenants fail to show that the court clearly erred in making the findings that underlie the damages award, and that the award is within reasonable limits when we view the evidence in the light most favorable to the landlords. Accordingly, we affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. A.N.G.,

Case No.: 2019AP1100

Officials: BLANCHARD, J.

Focus: 1st Amendment Violation

A.N.G. appeals an order adjudicating him delinquent, as party to a crime, of making terrorist threats and disorderly conduct. The State alleges that then middle school student A.N.G., while at school, helped create a drawing containing terroristic threats and failed to destroy it before a teacher discovered it, under circumstances likely to cause or provoke a disturbance. A.N.G. argues that he did not convey a “true threat” and therefore the First Amendment bars prosecution. Applying the multi-factor test in State v. Perkins, 2001 WI 46, 243 Wis. 2d 141, 626 N.W.2d 762, I conclude that his conduct did not constitute the making of a true threat. The most significant consideration is the circuit court’s factual finding that A.N.G. intended the drawing to be a private communication, not to be shared with others. Accordingly, I reverse and remand to the circuit court with directions to vacate both adjudications and dismiss the delinquency petition.

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WI Court of Appeals – District IV

Case Name: Village of Taylor v. Steven J. Peplinski

Case No.: 2019AP1392; 2019AP1393

Officials: BLANCHARD, J.

Focus: Ordinance Interpretation

Steven Peplinski appeals two forfeiture orders following guilty jury verdicts for violations of Village of Taylor Ordinance 15-1-6(f)(1). This ordinance involves the requirement that fencing be placed around a site on which a building has been or is being razed. Citations were issued in November 2018 and a trial was held in May 2019. Peplinski, pro se, has filed a brief purporting to raise four issues. However, the brief is so unclear that if properly presented as legal arguments he may intend to raise fewer than four issues or more than four issues. In any case, the brief is thoroughly undeveloped and inadequate. Further, Peplinski has failed to ensure that the record contains the transcripts necessary to review some of what he may intend to argue on appeal. See WIS. STAT. RULES 809.11(4), 809.19(2)(a).

The Village responds with a brief that notes some of the ways in which Peplinski’s brief is defective. The Village then states: Peplinski’s brief leaves the Village of Taylor to guess at what Peplinski is arguing to the [c]ourt [of appeals]. The Village of Taylor assumes that Peplinski is upset with the [circuit c]ourt’s decision … regarding the waiver of costs and fees, however, Peplinski has not properly briefed this issue, nor has he included in his brief copies of the portions of the record he complains of or copies of any decision by the [c]ircuit [c]ourt of which he complains ….Peplinski has not filed a reply brief.

While pro se litigants may be granted some leeway, they are generally held to the same appellate rules as attorneys. See Waushara Cty. v. Graf, 166 Wis. 2d 442, 452, 480 N.W.2d 16 (1992). Self-representation is not a license to avoid or ignore the relevant procedural and substantive law. Id.

In order to attempt a substantive review of whatever issues Peplinski may intend to present, I would essentially have to develop the issues from scratch using the record, even putting aside the problem of the missing transcripts. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (rejecting as undeveloped potential arguments of brief so lacking in organization and substance that to decide the appellate issues, appellate court would first have to develop them). I decline to consider Peplinski’s unsupported and undeveloped arguments because to do so would require me to abandon my neutral role. See State v. Gulrud, 140 Wis. 2d 721, 730, 412 N.W.2d 139 (Ct. App. 1987). As the Village points out, this would obviously be unfair to the Village.

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WI Court of Appeals – District IV

Case Name: Portage County v. E.R.R.

Case No.: 2019AP2033

Officials: FITZPATRICK, P.J.

Focus: Sufficiency of Evidence

E.R.R. appeals orders of the Portage County Circuit Court extending his involuntary commitment and requiring E.R.R. to undergo treatment and take prescribed medication pursuant to WIS. STAT. ch. 51. E.R.R. argues that there was insufficient evidence to support the circuit court’s orders. I do not reach the merits of E.R.R.’s arguments because the issues raised in this appeal are moot, and I dismiss this appeal on that basis.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Jose M. Correa , et al., v. Woodman’s Food Market

Case No.: 2020 WI 43

Focus: Safe Place Act – Unsafe Work Conditions

Mr. Jose Correa slipped on an unknown substance at a Woodman’s Food Market (“Woodman’s”), causing him to fall and sustain injuries. He says the substance caused an unsafe condition within the meaning of Wis. Stat. § 101.11 (2013-14), and that it was there long enough to give Woodman’s constructive notice of its existence. To prove how long the substance was on the floor, he introduced a security camera video showing the part of the store where he slipped and fell. Everyone agrees there is no evidence to prove when the substance was deposited on the floor and that it is not possible to actually see the substance in the video.

In this case we decide whether ascertaining the point in time at which an unsafe condition commenced is a sine qua non of constructive notice. We also decide whether the security camera video may support an inference that the substance was on the floor long enough to give Woodman’s constructive notice of its existence. We conclude that a plaintiff need not prove the exact moment the unsafe condition commenced, so long as the evidence is sufficient to prove it existed long enough to give the defendant constructive notice of its presence. We also conclude that a jury may infer from the security camera video in this case that the unsafe condition existed long enough to give the defendant constructive notice of its presence.

Reversed

Concur:

Dissent:

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WI Supreme Court

Case Name: City of Cedarburg v. Ries B. Hansen

Case No.: 2020 WI 45

Focus: Court Error – Motion for Reconsideration

The City of Cedarburg moves the court to reconsider ¶30 of its decision in the above-captioned case, issued February 11, 2020. See Wis. Stat. § 809.64 (2019-20). The City contends the court overlooked State v. Braunschweig, 2018 WI 113, 384 Wis. 2d 742, 921 N.W.2d 199, wherein the court unanimously decided that the proper burden of proof the State must satisfy to establish a defendant’s prior OWI convictions is a preponderance of the evidence. The City requests only that the court modify ¶30 of our decision in City of Cedarburg v. Hansen to reflect the burden of proof announced in Braunschweig.

We grant the City’s motion for reconsideration to modify ¶30. Braunschweig established the proper burden of proof to be a preponderance of the evidence. It noted that “in some PAC cases” under Wis. Stat. § 346.63, in which the text of the statute specifically makes “the predicate prior [] an element of the offense,” the State must satisfy the higher, beyond a reasonable doubt burden. Braunschweig, 384 Wis. 2d 742, ¶36 & n.18. However, the court held that “the State’s burden of proving the prior OWI conviction in second offense OWI-related offenses” is a preponderance of the evidence. Id., ¶¶3, 32-40. That burden of proof applies because a prior OWI offense is not among the statutory elements of a second offense OWI. See Wis. Stat. § 346.63(1)(a).

Accordingly, we order that ¶30 in City of Cedarburg v. Hansen, 2020 WI 11, 390 Wis. 2d 109, 938 N.W.2d 463, be modified to read as follows, with bold indicating the amended language and strikethrough indicating the language removed: A defendant’s prior convictions determine his status as a repeat offender, not his guilt. State v. Saunders, 2002 WI 107, ¶3, 255 Wis. 2d 589, 649 N.W.2d 263. However, the State must prove a defendant’s status as a prior offender at sentencing, where prior convictions must be established by a preponderance of the evidence. See State v. Braunschweig, 2018 WI 113, ¶¶3, 32-40, 384 Wis. 2d 742, 921 N.W.2d 199. beyond a reasonable doubt.13 Id. Importantly, the city attorney is not required to allege or prove that the defendant had no prior offenses.

Motion Granted

Concur:

Dissent:

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WI Supreme Court

Case Name: Emer’s Camper Corral, LLC, v. Michael A. Alderman, et al.,

Case No.: 2020 WI 46

Focus: Insurance Claim – Negligence

Emer’s Camper Corral, LLC (“Camper Corral”) thought its insurance agent had acquired a policy with a deductible of $1,000 per camper in the event of hail damage with a $5,000 aggregate deductible limit. In actuality, the policy required a $5,000 deductible per camper, with no aggregate limit. Camper Corral did not discover the truth until after a hailstorm damaged many of the campers on its lot.

Camper Corral sued its insurance agent, Michael A. Alderman, and Alderman, Inc. d/b/a Jensen-Sundquist (collectively, “Mr. Alderman”) claiming he was negligent because he procured a policy that did not conform to its requirements. The circuit court directed a verdict because Camper Corral’s failure to introduce evidence that an insurer would have insured the company with the deductible limits it thought it had meant that it had not proven a causal link between the agent’s negligence and the sustained loss.

We granted Camper Corral’s petition for review to determine whether it must prove not just that an insurance policy with the requested deductibles was commercially available, but also that an insurer would actually write that policy for Camper Corral in particular. We hold that commercial availability is insufficient to establish causation; Camper Corral must also prove it would have qualified for an insurance policy with better terms than the policy it actually obtained. Therefore, we affirm the court of appeals.

Affirmed

Concur:

Dissent: ROGGENSACK, C.J., filed a dissenting opinion.

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Supreme Court Digests

United States Supreme Court

Case Name: Monicah Okoba Opati, et al., v. Republican of Sudan, et al.,

Case No.: 17-1268

Focus: Foreign Sovereign Immunities Act – Damages

In 1998, al Qaeda operatives simultaneously detonated truck bombs outside the United States Embassies in Kenya and Tanzania. Hundreds died, thousands were injured. In time, victims and their family members sued the Republic of Sudan in federal court, alleging that it had assisted al Qaeda in perpetrating the attacks. After more than a decade of motions practice, intervening legislative amendments, and a trial, the plaintiffs proved Sudan’s role in the attacks and established their entitlement to compensatory and punitive damages. On appeal, however, Sudan argued, and the court agreed, that the Foreign Sovereign Immunities Act barred the punitive damages award. It is that decision we now review and, ultimately, vacate.

Vacated and remanded

Dissenting:

Concurring:

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