On Point

State v. Joseph K. Larson, 2016AP1002-CR, 3/21/17, District III, (one-judge decision; ineligible for publication); case activity (including briefs)

Joseph Larson contends on appeal that the circuit court erred when it concluded he consented to a breath alcohol test after his arrest for OWI.

Ten weeks ago SCOW issued Seifert v. Balink, its first decision interpreting and applying §907.02, the Daubert test for the admissibility of expert testimony. The court split 2-1-2-2 (as in Abrahamson/AW Bradley–Ziegler–Gableman/Roggensack–Kelly/RG Bradley). That generated two On Point posts here and here,  an Inside Track article here and a Wisconsin Lawyer article here.  Today SCOW split 3-3 in Smith v. Kleynerman, which raised two issues regarding the law governing LLCs and a Daubert issue. Click here to see Kleynerman’s brief.

Elijah Manuel v. City of Joliet, Illinois, USSC No. 14-9496, 2017WL1050976 (March 21, 2017), reversing and remanding Manuel v. Illinois, 590 FedAppx. 641 (7th Cir. 2015)(unpublished); SCOTUSblog page (including links to briefs and commentary)

This decision is noteworthy for two reasons. First, it’s a reminder that when something goes very wrong in your client’s case he or she could have a civil rights claim under 42 U.S.C. §1983. Second, it  brought the 7th Circuit in line with 10 other circuits, which hold that the 4th Amendment right to be free from seizure unless there’s probable cause extends through the pretrial period.

Assuming that Neil Gorsuch is confirmed, you’ll want to know how he thinks about the 4th Amendment. He could prove to be your swing vote. SCOTUSbl0g offers an in-depth analysis of Gorsuch’s 4th Amendment jurisprudence here. While you’re at it, you might take a look at Gorsuch’s views on the First Amendment here.

McKinley Kelly v. Richard Brown, 7th Circuit Court of Appeals No. 17-1244, 3/16/17

Two judges on the Seventh Circuit apparently think so, based on their rejection of Kelly’s motion to file a second federal habeas petition so he can challenge his sentence under Miller v. Alabama, 132 S. Ct. 2455 (2012) (mandatory life sentence for juvenile offenders is unconstitutional).

State v. Bruce T. Henningfield, 2015AP1824-CR, 3/15/17 (not recommended for publication); case activity (including briefs)

Bruce Henningfield was convicted by a jury of OWI and PAC counts, and was sentenced on the OWI as a tenth or subsequent offense. He raises three issues related to his prior convictions; the court rejects them all.

Review of an unpublished court of appeals decision; affirmed 4/10/18, case activity (including briefs)

Issues (composed by On Point)

1. Whether the safe transport statute, which permits transporting a handgun in a vehicle, forecloses convicting a non-permit-holder under the concealed carry law for having a handgun in his vehicle.
2. Whether the safe transport statute’s apparent contradiction of the concealed carry statute renders the law unconstitutionally vague.

County of Marathon v. Armin James Balzar, 2016AP1471, 3/14/17, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)

Balzar argues on appeal that the stop of his vehicle was not supported by reasonable suspicion because it was based on the “act of simply turning into a closed business parking lot, without more.” (¶8). The court disagrees.

State v. Roy A. Mitchell, Jr., 2016AP937-CR, 3/16/17, District 4 (1-judge opinion, ineligible for publication); case activity (including briefs)

Mitchell pled guilty to misdemeanor theft, resisting or obstructing an officer, and prostitution in exchange for the State’s agreement to dismiss charges for misdemeanor/battery, strangulation/suffocation, and felony theft. But when the State sought restitution for medical expenses incurred by the victim on the dismissed charges that involved physical contact, Mitchell objected because the victim’s injuries’ and expenses were not related to the crimes for which Mitchell was convicted and sentenced.

Jefferson County Human Serv. Dep’t v. V.B., 2016AP2468-2469, 3/16/17, District 4 (1-judge opinion; ineligible for publication); case activity

The circuit court found that V.B.’s children were in continuing need of protective services and thus there it had grounds to terminate her parental rights pursuant to §48.415(2).  On appeal,V.B. unsuccessfully challenged the evidence supporting the 3rd and 4th elements of continuing CHIPS–namely, that the county made reasonable efforts to provide court-ordered services to V.B. and that V.B. failed to meet the conditions for return of her children.