Weekly Case Digests – October 5, 2020 – October 9, 2020

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Todd Kurtzhals v. County of Dunn

Case No.: 19-3111

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

Focus: ADA Violation – Fitness for Duty Examination

Sergeant Todd Kurtzhals worked for the Sheriff’s Office of Dunn County, Wisconsin. After he threatened physical violence against one of his fellow officers, Deputy Dennis Rhead, the Office put him on temporary paid administrative leave and ordered him to undergo a fitness-for-duty evaluation. Kurtzhals was convinced that his supervisors took this course of action because they knew that Kurtzhals has a history of Post-Traumatic Stress Disorder (PTSD), not because his conduct violated the County’s Workplace Violence Policy and implicated public safety.

Acting on that conviction, Kurtzhals sued Dunn County for employment discrimination in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12112. The district court concluded that no reasonable jury could find that Kurtzhals’s PTSD was the “but for” cause of the County’s action or that it was plainly unreasonable for Kurtzhals’s superiors to believe that a fitness-for-duty examination was warranted, and so it granted summary judgment to the County. We agree with that assessment and affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Earl R. Orr

Case No.: 19-1938

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

Focus: Abuse of Discretion – Ex Parte Communication

A search warrant for illegal drugs at the home of Earl Orr led to his arrest for possessing a firearm as a felon. After a two-day trial, a jury found him guilty. Orr appeals a number of decisions made by the district court before and during that trial.

We conclude that the district court properly denied Orr’s motion to suppress evidence. But Judge Bruce, who presided over this case at trial, had engaged in improper ex parte communications with the U.S. Attorney’s Office in other matters. That cast a pall over certain decisions in this case which required the exercise of substantial discretion. This was not harmless error, so we vacate Orr’s conviction and remand for further proceedings before a different judge.

Vacated and remanded

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7^th Circuit Court of Appeals

Case Name: Driftless Area Land Conservancy, et al., v. Michael Huebsch, et al.,

Case No.: 20-1350

Officials: SYKES, Chief Judge, and FLAUM and ROVNER, Circuit Judges.

Focus: Construction Permit – Intervention as a Right

The Wisconsin Public Service Commission issued a permit authorizing the construction of a $500 million electricity transmission line in southwestern Wisconsin. Two environmental groups sued the Commission to invalidate the permit. The permit holders moved to intervene to protect their interest in the permit; without it the power line cannot be built. The district court denied the motion, and the permit holders appealed.

Briefing was completed at the end of June, and we set the case for oral argument on September 22, 2020. The permit holders moved for expedited review without oral argument; they want an earlier ruling because the case continues without them in the district court. The environmental groups responded in opposition, and the matter is ready for decision.

We grant the motion. The briefs and record adequately address the single issue raised on appeal, and oral argument would not significantly assist the court. See FED. R. APP. P. 34(a)(2)(C). The case is submitted on the briefs, and we now reverse the district court. The permit holders are entitled to intervene under Rule 24(a)(2) of the Federal Rules of Civil Procedure. In many respects this is a paradigmatic case for intervention as of right.

Motion granted

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7^th Circuit Court of Appeals

Case Name: Ron Morris v. BNSF Railway Company

Case No.: 19-2808; 19-2913

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

Focus: Title VII Claim – Sufficiency of Evidence

Ron Morris worked for nine years as a train conductor for Burlington Northern Santa Fe Railway. The company fired him after he committed two speeding infractions during a single shift. Morris, who is African-American, invoked Title VII and brought suit to challenge his termination, alleging that BNSF punished him more severely than non-black employees who committed similar safety violations. His case proceeded to trial and a jury found in his favor. BNSF challenges the district court’s decisions at every stage of the case, from the viability of Morris’s theory of discrimination and sufficiency of his evidence to discovery rulings and remedies. We see no errors and affirm, on most issues applying a deferential standard of review and respecting the district court’s close proximity to questions bearing upon management of the litigation and the admissibility and adequacy of evidence.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. LaTasha Gamble

Case No.: 19-2514

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

Focus: Sentencing Guidelines and 5^th Amendment Violation

Defendant Latasha Gamble was found guilty of armed bank robbery and sentenced to 151 months in prison. She challenges her sentence on two grounds that revolve around whether she used a real firearm in the robbery. First, she argues that the district court erred in finding that she used a real firearm in the robbery. Second she argues that the district judge violated her Fifth Amendment privilege against self-incrimination by considering at sentencing his finding that she lied to the FBI about buying and using a fake gun in the robbery and that she did not help recover the discarded gun.

We affirm. Ample evidence supported the judge’s finding that Gamble used a real firearm in the robbery. Also, Gamble’s Fifth Amendment rights were not violated. She did not remain silent but instead chose to tell the FBI where she got the gun and how she got rid of it. She thus waived her Fifth Amendment privilege on those topics. See Anderson v. Charles, 447 U.S. 404, 408 (1980). The district judge was entitled to consider her false statements in deciding on her sentence.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Maria Mercedes Lopez-Garcia v. William P. Barr

Case No.: 19-2081

Officials: SYKES, Chief Judge, and BAUER and EASTERBROOK, Circuit Judges.

Focus: Immigration – Abuse of Discretion

Maria Lopez-Garcia and her three minor children, Luisa, Wendy, and Rolando Lopez-Lopez are natives and citizens of Guatemala. We consider whether the Board of Immigration Appeals (BIA) abused its discretion in denying their motions to reconsider and reopen. Upon review, we find no abuse of discretion by the BIA and deny the petition.

Petition denied

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7^th Circuit Court of Appeals

Case Name: Delores Henry, et al., v. Melody Hulett, et al.,

Case No.: 16-4234

Officials: SYKES, Chief Judge, and FLAUM, EASTERBROOK, MANION, KANNE, ROVNER, WOOD, HAMILTON, BARRETT, BRENNAN, SCUDDER, and ST. EVE, Circuit Judges.

Focus: Prisoner – 4^th Amendment Violation

Plaintiffs—a class of more than 200 current and former female inmates at Lincoln Correctional Center—brought this action following mass strip searches conducted as part of a cadet training exercise in 2011. They contend that the circumstances of the searches—particularly the intrusive and degrading manner in which they occurred— violated their Fourth and Eighth Amendment rights.

Defendants—various prison officials—moved for summary judgment before the district court, arguing that our circuit’s prior decisions foreclosed Plaintiffs’ Fourth Amendment claim. The district court agreed, concluding that, under Johnson v. Phelan, 69 F.3d 144 (7th Cir. 1995), and King v. McCarty, 781 F.3d 889 (7th Cir. 2015) (per curiam), convicted prisoners do not maintain a privacy interest during visual inspections of their bodies. A divided panel of our court affirmed that decision, following the same reasoning. We granted Plaintiffs’ petition for rehearing en banc and vacated the panel’s opinion and judgment.

We hold that the Fourth Amendment protects a right to bodily privacy for convicted prisoners, albeit in a significantly limited way, including during visual inspections. We therefore reverse the district court’s entry of partial summary judgment for Defendants on Plaintiffs’ Fourth Amendment claim and remand for further proceedings.

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: Tyler N. Jaxson v. Andrew Saul

Case No.: 19-3011; 19-3125

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

Focus: Court Error – Abuse of Discretion

David Daugherty, an administrative law judge hearing disability-benefits applications for the Social Security Administration, supplemented his salary by taking bribes. Eric Conn, who represented many claimants, paid Daugherty $400 per favorable decision; Conn himself received $5,000 or more per case out of the benefits that Daugherty awarded to Conn’s clients. Four physicians, including Frederic Huffnagle, submitted evaluations to support Daugherty’s decisions. Daugherty told Conn what kind of evidence he wanted to see. Conn wrote the reports, which one of the physicians would sign without change even if the applicant for benefits failed to appear for examination. Huffnagle’s “medical suite” was in Conn’s office.

After the scheme came to light, Conn and Daugherty pleaded guilty to several federal felonies. Bradley Adkins, one of the physicians, was convicted by a jury. Huffnagle died before he could be prosecuted. The total cost to the United States of benefits granted by Daugherty exceeds $500 million, and Conn reaped more than $5 million in legal fees. Many details of this scam are recounted in U.S. Senate Committee on Homeland Security and Governmental Affairs, Staff Report, How Some Legal, Medical, and Judicial Professionals Abused Social Security Disability Programs for the Country’s Most Vulnerable: A Case Study of the Conn Law Firm (Oct. 7, 2013).

The agency’s Inspector General formally notified it in 2015 of “reason to believe that fraud was involved in th[e] applications for Social Security benefits” of 1,787 named persons from January 2007 through May 2011. That notice, given under 42 U.S.C. §1320a–8(l), set in motion a process for redetermination of the benefits awarded to those persons. Two statutes, one covering disability payments and the other covering supplemental-security income, say that redetermination is mandatory if there is reason to believe that fraud played a role, and they add that in conducting this redetermination the agency “shall disregard any evidence if there is reason to believe that fraud or similar fault was involved in the providing of such evidence.” We put the full text of these statutes in an appendix.

Tyler Jaxson is among the people named by the Inspector General. He applied for both disability and supplemental security-income benefits in 2009, and the agency deemed his evidence insufficient. He failed to appear for any of the three examinations by specialists retained by the agency. Conn presented Jaxson’s request for reconsideration, supported by a report that Huffnagle signed, and asked for a hearing. ALJ Daugherty awarded benefits less than three weeks later, on June 1, 2010. He did not hold a hearing and wrote only a cursory evaluation.

Jaxson’s cross-appeal contends that proceedings on remand must be treated as hearings “on the record” governed by the Administrative Procedure Act. 5 U.S.C. §554(a). The district court deemed this argument forfeited because it had not been adequately developed. That was not an abuse of discretion. What’s more, for the reasons we have given, treating a redetermination as one governed by §554 would not do Jaxson any good. Even the most formal procedures, those used by federal judges, do not guarantee evidentiary hearings on disputes about the admissibility of evidence. The APA provides that “[w]hen an agency decision rests on official notice of a material fact not appearing in the evidence in the record, a party is entitled … to an opportunity to show the contrary.” 5 U.S.C. §556(e). We’ve concluded that this is also part of the procedures ordinarily used in informal adjudication: each party is entitled to be heard. The APA would not add to Jaxson’s rights.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Michael L. Shakman, et al., v. Clerk of the Circuit Court of Cook County, et al.,

Case No.: 19-2772

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

Focus: Appellate Jurisdiction

Many years ago, a class of plaintiffs sued the Clerk of the Circuit Court of Cook County, alleging that the Clerk was engaging in unlawful political patronage in violation of the First and Fourteenth Amendments of the Constitution. In 1972, the Clerk and the plaintiffs entered into a consent decree that prohibited the Clerk from discriminating against the office’s employees for political reasons, and in 1983, a separate judgment extended that prohibition to hiring practices.

Litigation has continued in the ensuing decades. In 2018, unconvinced that the Clerk’s office had cleaned up its act, the magistrate judge appointed a special master to monitor the Clerk’s compliance with the 1972 consent decree and the 1983 judgment order. As part of her effort to determine whether the Clerk was continuing to favor political allies in employment decisions, the special master sought to observe the conduct of the Clerk’s office managers at employee grievance meetings. But the employees’ union, Teamsters Local 700, didn’t appreciate the scrutiny, and it sent the special master a cease-and-desist letter purporting to bar her from the room. In response, the plaintiffs sought a declaratory judgment clarifying that the 2018 supplemental relief order authorized the special master to observe the grievance meetings. The union—which was not a party to the suit and did not seek to become one—filed a memorandum opposing the plaintiffs’ motion on the grounds that the 1972 consent decree didn’t provide a basis for the supplemental relief order and that the special master’s presence at the meetings violated both Illinois labor law and the union’s collective bargaining agreement with the Clerk.

The magistrate judge agreed with the plaintiffs, and the union now appeals. Its principal argument is that the magistrate judge can’t force the union to tolerate the special master because the union isn’t a party to the suit. In addition to responding to the merits of this argument, the plaintiffs contend that we lack jurisdiction for two reasons. They assert that the union cannot bring this appeal because it is not a party, and they say that the magistrate judge’s declaratory judgment is not an appealable final judgment under 28 U.S.C. § 1291. We agree with the plaintiffs on the first point, so we need not address the second.

This argument is in considerable tension with the union’s position that the declaratory judgment cannot bind it because it is not a party to the litigation. In any event, though, the union is not similarly situated to the unnamed class member in Devlin. A mandatory class action settlement “finally dispose[s] of any right or claim [an unnamed class member] might have” because it has preclusive effect on the members of the class. Id. at 9; see also Taylor v. Sturgell, 553 U.S. 880, 894 (2008) (“Representative suits with preclusive effect on nonparties include properly conducted class actions ….”). And because an unnamed class member in a mandatory class action has “no ability to opt out of the settlement … appealing the approval of the settlement is [the class member’s] only means of protecting himself from being bound by a disposition of his rights he finds unacceptable and that a reviewing court may find legally inadequate.” Devlin, 536 U.S. at 10–11. None of this is true for the union, which is not a member of the plaintiff class in the action against the Clerk.

The union didn’t necessarily have to remain a bystander to the suit. It could have moved to intervene, and if the magistrate judge had denied the motion, the union could have appealed that order. Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 513 (1950) (“[A]n order denying intervention to a person having an absolute right to intervene is final and appealable.”). Rather than intervening, though, the union simply filed a memorandum in opposition to the plaintiffs’ motion for a declaratory judgment. While intervention would have clothed the union with party status, filing a memorandum did not. See Gautreaux, 475 F.3d at 852 (“Unfortunately, permitting CAC to participate in the proceedings by way of a formal motion led to a misapprehension on the part of that nonparty that it could appeal the district court’s decision.”). We lack jurisdiction unless a party invokes it, so this appeal is DISMISSED.

Dismissed

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7^th Circuit Court of Appeals

Case Name: Shan Fieldman v. Christine Brannon

Case No.: 19-1795

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

Focus: Habeas Relief – Exclusion of Evidence

On July 23, 2010, Shan Fieldman climbed into a truck in a Walmart parking lot and told a hitman that he wanted his ex-wife and her boyfriend killed. The hitman was in fact an undercover police officer who videotaped their conversation. Fieldman was charged and tried in Illinois state court for solicitation of murder for hire.

Fieldman defended against the state’s charges by contesting his intent (a necessary element of the offense) to have his ex-wife and her boyfriend killed. To that end, because a police informant brokered his meeting with the hitman, Fieldman sought to testify about his interactions with that informant during the five weeks before his conversation with the hitman. Fieldman believed this testimony would provide the jury with critical contextual information about his state of mind and demonstrate that his meeting with the hitman was a charade.

But the Illinois trial court did not allow the jury to hear this testimony because the court concluded it was irrelevant. Fieldman was convicted and unsuccessfully appealed his convictions through the Illinois state courts.

In this federal collateral attack on his conviction, Fieldman contends the court’s exclusion of his testimony deprived him of his federal constitutional right to present a complete defense. We agree. The court’s exclusion was contrary to clearly established federal law confirming a defendant’s right to testify, on his own behalf, about circumstances bearing directly on his guilt or innocence or the jury’s ascertainment of guilt. See Crane v. Kentucky, 476 U.S. 683 (1986); Rock v. Arkansas, 483 U.S. 44 (1987). And the exclusion of material portions of his testimony had a detrimental effect on his interests because it undercut his entire defense and effectively prevented him from challenging the state’s strongest evidence. We therefore affirm the district court’s grant of habeas relief.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Orlando Medina

Case No.: 19-1909

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

Focus: Sufficiency of Evidence

Orlando Medina was convicted of conspiracy to distribute 500 grams or more of cocaine. At a bench trial, key evidence included the testimony of police officers from Puerto Rico, four mail receipts, and the testimony of co‐conspirator Rodolfo Duenas. Medina argues his conviction must be reversed because the judge should have found this evidence lacked credibility as a matter of law. He also argues this evidence constituted false testimony and violated his due process rights. For the following reasons, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Alejandro Salazar-Marroquin v. William P. Barr

Case No.: 19-1669

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

Focus: Immigration – Removal Order

Under immigration law, it can make a big difference whether a non-citizen entered the United States legally or not. For petitioner Alejandro Salazar-Marroquin and his family, the difference is whether his marriage to a United States citizen makes him at least legally eligible for an adjustment of status that might allow him to remain in the United States lawfully. 8 U.S.C. § 1255(a). If he is not eligible and is removed after having failed to appear for his removal hearing in 2011, he will be inadmissible to the United States for five years after his removal. 8 U.S.C. § 1182(a)(6)(B).

The question of how petitioner entered the United States can be reached, however, only if petitioner can overcome several procedural obstacles, so we need to review the progress of his case in some detail. We conclude that under Fuller v. Whitaker, 914 F.3d 514 (7th Cir. 2019), petitioner is entitled to have the Board of Immigration Appeals take a fresh look at his motion to have his case reopened based on evidence that he entered legally, despite the generally applicable time-and-number limits on motions to reopen.

Petition granted and cause remanded

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7^th Circuit Court of Appeals

Case Name: United States of America v. Gregory Greene

Case No.: 19-3069

Officials: MANION, WOOD, and BARRETT, Circuit Judges.

Focus: Sentencing Guidelines – Supervised Release

Gregory Greene pleaded guilty to distributing child pornography, 18 U.S.C. §§ 2252A(a)(1), 2252A(b)(1), and received a within‐guidelines prison sentence and a life term of supervised release. On appeal, he argues that the district court committed a procedural error in sentencing him to lifelong supervision because it violated the parsimony provision of the sentencing statute, which requires that a sentence be “sufficient, but not greater than necessary.” See 18 U.S.C. § 3553(a). Specifically, he challenges the district court’s statement that, for him, terms of 10 years and life would be “effectively the same” because his life after prison would be “short.” But the district court considered the guidelines and explained, with reference to the factors under § 3553(a), why it believed that a life term of supervised release was necessary, so we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Anthony J. Machicote v. Doctor Roethlisberger

Case No.: 19-3009

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

Focus: Prisoner – Deliberate Indifference

Anthony Machicote is a Wisconsin inmate who had a surgery that left him in extreme pain necessitating strong medication at regular intervals. He faced delays and interruptions in receiving those drugs and experienced significant pain as a result. That led him to invoke 42 U.S.C. § 1983 and file a lawsuit against several physicians, a health services manager, and a nurse who worked at the New Lisbon Correctional Institution. The district court entered summary judgment for all defendants, concluding that Machicote had not shown that any of them were deliberately indifferent to his suffering. We agree with respect to most of the defendants and affirm the judgments in their favor. But Machicote has persuaded us that a factual issue remains as to the deliberate indifference of the nurse. We therefore vacate the judgment as to only that defendant and remand for a trial.

Vacated and remanded

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7^th Circuit Court of Appeals

Case Name: Reginald Pittman v. County of Madison, Illinois, et al.,

Case No.: 19-2956

Officials: WOOD, BARRETT, and SCUDDER, Circuit Judges.

Focus: Jury Instructions

Reginald Pittman attempted suicide at the Madison County jail in 2007. Although the attempt failed, it left him in a vegetative state. Through his guardian, Pittman filed this § 1983 suit against Madison County and then-Madison County jail employees, Sergeant Randy Eaton and Deputy Matthew Werner, alleging that they violated the Fourteenth Amendment by failing to provide him with adequate medical care. In 2018, the suit went to trial for the second time, and the jury returned a verdict in favor of the defendants. We reverse the district court’s denial of Pittman’s motion for a new trial and remand because we conclude that one of the jury instructions erroneously directed the jury to evaluate Pittman’s Fourteenth Amendment claim according to a subjective rather than objective standard.

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: United States of America v. Sevon E. Thomas

Case No.: 19-2129

Officials: RIPPLE, WOOD, and SCUDDER, Circuit Judges.

Focus: Jury Instructions

Sevon Thomas found himself charged with possessing a firearm in connection with a drug trafficking crime after he agreed to sell methamphetamine to a government cooperator. Once Thomas drove to the prearranged delivery time and place, the police arrested him and searched his car. When police opened the glove compartment, out fell two firearms and a bag of methamphetamine. At trial Thomas claimed that he used the guns for lawful purposes unrelated to drug dealing and therefore did not possess them “in furtherance of” a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i). A jury disagreed and found Thomas guilty. On appeal Thomas argues that the district court made two errors at trial: improperly admitting so-called “dual-role” (both expert and lay) testimony from a federal agent and bungling the jury instructions. But Thomas raised neither challenge below, so he had to show a plain error necessitating reversal of his conviction. He falls short, so we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Aaron P. Brace v. Andrew M. Saul

Case No.: 19-2029

Officials: SYKES, Chief Judge, and MANION and KANNE, Circuit Judges.

Focus: ALJ Error – Social Security Benefits

Aaron Brace applied for Social Security disability benefits based on a number of chronic conditions—primarily back and neck pain due to degenerative disc disease. An administrative law judge denied his application after crediting testimony from a vocational expert that jobs are available in significant numbers in the national economy for a person with Brace’s limitations. Brace’s lawyer had asked the vocational expert to explain how he arrived at his job estimates. The expert’s answer was inscrutable. The ALJ accepted his testimony anyway and on that basis rejected Brace’s claim for benefits. That approach does not satisfy the substantial-evidence standard. See Chavez v. Berryhill, 895 F.3d 962, 968–70 (7th Cir. 2018). We reverse and remand to the agency for further proceedings.

Reversed and remanded

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: Darrell Klein, et al., v. The Wisconsin Department of Revenue, et al.,

Case No.: 2018AP1133

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

Focus: Sovereign Immunity – Property Tax

In response to a federal court decision, the Town of Sanborn (the “Town”) decided in 2007 to remove from its property tax rolls all land belonging to the Bad River Band of Lake Superior Tribe of Chippewa Indians (the “Bad River Band”) and its members. The Wisconsin Department of Revenue (the “Department”) subsequently issued guidance encouraging municipalities to review, on a property-by-property basis, whether Native American property qualified under federal law for property tax exemption. Nonetheless, the Town continued its blanket exemption for all Bad River Band tribal and member property until it was ordered to return those properties to the tax rolls as part of another lawsuit.

Darrell Klein and the other taxpayer plaintiffs (collectively, the “Taxpayers”) commenced this action against the Department after the Sanborn Town Board disallowed their claims regarding excessive and unlawful taxation. The Taxpayers alleged the Department had failed to act sufficiently to stop the Town’s unlawful taxation policy. As a result, they alleged the Department has allowed the non-uniform taxation of property. The Taxpayers asserted they were entitled to recover an alleged $1.5 million in excessive taxes from the Department on behalf of themselves and other taxpayers in Ashland County. They also sought damages for the alleged diminution of their property values, a town-wide reassessment, and a writ of mandamus compelling the Department to comply with its statutory obligations under WIS. STAT. ch. 73 (2017-18). The Taxpayers further sought attorney fees and declaratory relief.

The circuit court granted the Taxpayers’ summary judgment motion, and we agree with the Department that it erred by doing so. Instead, the Department was entitled to summary judgment because sovereign immunity bars the Taxpayers’ claims against it for damages and attorney fees, as a matter of law. When the action is one for the recovery of money from the State, as here, the State—including one of its agencies like the Department—may not be sued without its consent (i.e., an express directive by the legislature). The application of sovereign immunity here required the circuit court to dismiss all of the Taxpayers’ non-mandamus claims, including their request for attorney fees. Moreover, given the circumstances in this case, any claim for the recovery of unlawful taxes lies against the municipality that collected them, not with the Department.

As for the Taxpayers’ mandamus claim, we conclude they have failed to demonstrate that the Department had a “positive and plain duty” that it failed to perform. Rather, the duties the Taxpayers point to are investigative and prosecutorial functions that have long been treated as discretionary. Accordingly, we conclude that summary judgment was appropriate in the Department’s favor on all of the Taxpayers’ claims. We reverse and remand with directions for the circuit court to dismiss the claims against the Department.

Recommended for Publication

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WI Court of Appeals – District III

Case Name: Wayne M. Lautenbach v. Wayne L. Lautenbach, et al.,

Case No.: 2018AP1479

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

Focus: Attorney Fees

This matter arises from a protracted dispute concerning a trust established by Dianne and Wayne L. Lautenbach. Trust beneficiary Wayne M. Lautenbach—Dianne and Wayne L.’s son—appeals an order denying his request for attorney fees. Because the record before us provides ample support for the circuit court’s discretionary decision not to award Wayne M. attorney fees, we affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Frederick A. Ziesmer

Case No.: 2019AP1437-CR

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

Focus: Abuse of Discretion – Sentencing – Supervised Release

Following a jury trial, Frederick Ziesmer was convicted of repeated sexual assault of the same child. The victim of that offense was Ziesmer’s stepdaughter Claire.  As a condition of Ziesmer’s extended supervision, the circuit court ordered that he have no contact with any minor children, including his biological daughter, Iris. The court subsequently denied Ziesmer’s postconviction motion, which sought to modify that condition to allow him to have contact with Iris.

On appeal, Ziesmer argues the circuit court erroneously exercised its discretion by prohibiting him from having contact with Iris as a condition of his extended supervision, and that the court erred by denying his postconviction motion to modify the no-contact condition without a hearing. Ziesmer also argues that the no-contact provision impermissibly infringes on his constitutional right to parent his child. We reject these arguments and affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Morgan E. Geyser

Case No.: 2018AP1897-CR

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

Focus: Court Error – Discharge from Adult Court

On May 31, 2014, twelve-year-old Morgan Geyser, with the aid of twelve-year-old Anissa Weier, repeatedly stabbed her friend, the twelve-year-old victim in this case. Geyser’s attack brought the victim to the brink of death, but she very fortunately survived. As a result of the attack, Geyser and Weier were charged in adult court with attempted first-degree intentional homicide, with use of a dangerous weapon, as parties to the crime.

A preliminary hearing was held to determine whether probable cause existed that Geyser and Weier had committed that adult-court-jurisdiction conferring offense and thus whether the matter should remain in adult court. Despite the efforts of Geyser and Weier to convince the court the charge should be reduced to attempted second-degree intentional homicide—resulting in a loss of exclusive original adult-court jurisdiction—the court found probable cause that both defendants committed attempted first-degree intentional homicide and bound them over for trial in adult court. In this appeal, Geyser claims the court erred in binding her over rather than discharging her from adult court. We conclude the court did not err.

As the case was pending, Geyser filed a motion to suppress a statement she made to Waukesha Police Department Detective Thomas Casey following the attack.  She claimed, and claims on appeal, that she did not knowingly, intelligently, and voluntarily waive her Miranda rights prior to providing this statement, and thus the statement was unconstitutionally procured, and the circuit court erred in declining to suppress it. We need not decide whether the court erred in denying this motion because we conclude that even if it did err, such error was harmless beyond a reasonable doubt due to the additional, unchallenged and overwhelming evidence in this case.

Recommended for Publication

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WI Court of Appeals – District II

Case Name: Harry B. Mains v. Russ Darrow Group, Inc., et al.,

Case No.: 2019AP870

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

Focus: Sanctions and Damages

The circuit court denied Russ Darrow Group, Inc.’s (Darrow) motion for sanctions and damages against Harry B. Mains (Mains) as being untimely under WIS. STAT. §§ 802.05 and 895.044 (2017-18). As Darrow’s motion was timely, we reverse.

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WI Court of Appeals – District II

Case Name: State of Wisconsin, et al., v. Richard L. Austin, Jr.,  

Case No.: 2019AP1524

Officials: NEUBAUER, C.J.

Focus: Due Process Violation and Sufficiency of Evidence

Richard L. Austin, Jr., appeals from an order finding him in contempt for lack of child support, sentencing him to forty-five days in jail. Austin asserts that the Washington County Child Support Agency lacked jurisdiction to enforce child support laws. He also asserts that the circuit court failed to protect his right to due process and suggests that sufficient evidence did not support the contempt order. Austin’s arguments are largely based on irrelevant federal law. We conclude the circuit court had jurisdiction to enforce child support laws, Austin has failed to identify any due process issue, and there was sufficient support for the court’s finding of contempt. We affirm.

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WI Court of Appeals – District II

Case Name: William H. Heaney v. Oshkosh Business Center III, LLC,

Case No.: 2019AP2430-FT

Officials: GUNDRUM, J.

Focus: Court of Error – Admittance of Evidence

William Heaney appeals from a judgment dismissing his small claims replevin action seeking the recovery of three oil portraits hanging in the lobby of the “Oshkosh Northwestern Building,” a building owned by Oshkosh Business Center III, LLC. He asserts the circuit court erred in refusing to admit as evidence at the trial authorizations signed by his cousin and his cousin’s widow and erred in ultimately concluding he had not met his burden of proof to establish ownership of the portraits. We affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Catherine Cuskey Large

Case No.: 2019AP1966-CR

Officials: GRAHAM, J.

Focus: Unlawful-stop Claim – Suppression of Evidence

During the course of a traffic stop, Catherine Large was arrested for operating a vehicle while intoxicated (“OWI”), and a sample of her blood was later drawn for chemical testing. Large moved to suppress the blood test evidence on the grounds that the traffic stop was unlawfully extended beyond its original mission. After an evidentiary hearing, the circuit court granted Large’s motion and then dismissed all counts in the criminal complaint. On appeal, the State argues that the court erred when it suppressed the evidence, and further, that it lacked authority to dismiss the complaint. I affirm the court’s suppression order, reverse its dismissal of the complaint, and remand to the circuit court for further proceedings.

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WI Court of Appeals – District IV

Case Name: Rock County v. R.J.,

Case No.: 2020AP93

Officials: GRAHAM, J.

Focus: Involuntary Commitment

R.J. was involuntary committed for treatment for six months pursuant to WIS. STAT. § 51.20, and he was subsequently recommitted for a period of one year. In this appeal of his initial commitment, R.J. argues that the County failed to meet its burden to prove that he was dangerous. I conclude that this appeal is moot and decline to reach its merits; therefore, I affirm.

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WI Court of Appeals – District IV

Case Name: Village of Muscoda v. Greg Douglas Griswold

Case No.: 2020AP166

Officials: KLOPPENBURG, J.

Focus: Ordinance Interpretation and Sufficiency of Evidence

Greg Douglas Griswold appeals a circuit court judgment finding him guilty of violating a Village of Muscoda ordinance that provides: “No person may violate any rules or regulations that have been enacted by the Librarian or the Library Board.” Muscoda, Wisconsin, Municipal Code § 12-1-10 (2020).

The circuit court concluded that, on October 16, 2019, Griswold violated the Village ordinance. The underlying rule that triggered the ordinance citation is a Muscoda Public Library rule providing that “patrons must sign in to use either of the two study rooms in the library.”

Griswold argues on appeal that there is no evidence that he disobeyed the sign-in rule in violation of the ordinance on October 16, 2019. I agree that the record shows that Griswold did not actually enter or use either of the two study rooms in the library on October 16, 2019. He therefore did not disobey “any rules or regulations that have been enacted by the Librarian or the Library Board” in violation of the ordinance. Muscoda, Wisconsin, Municipal Code § 12- 1-10 (2020). Accordingly, I reverse.

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