By Margo Kirchner

​A federal judge’s refusal to delay trial for two years so that “Coupon King” Thomas (Chris) Balsiger could be represented by a particular lawyer did not violate Balsiger’s right to counsel, a federal appeals court ruled last week.
 
The ruling means that the 10-year federal criminal case against Balsiger will not be retried.  The U.S. Court of Appeals for the Seventh Circuit affirmed the bulk of Balsiger’s conviction and sentence with the exception of a recalculated forfeiture amount.
 
Balsiger ran International Outsourcing Services, one of the nation’s largest product-coupon processors, in El Paso, Texas, and Bloomington, Indiana.
 
He and 10 others were indicted in 2007 on 25 counts of wire fraud, conspiracy to commit wire fraud, and conspiracy to obstruct justice. The fraud allegations involved coupon payments made by Wisconsin manufacturers Sargento Foods, Good Humor/Breyers Ice Cream, Kimberly-Clark, LeSaffre Yeast, and S.C. Johnson & Sons. The indictment alleged that the wire-fraud scheme caused $250 million in losses to manufacturers.
 
Pretrial proceedings dragged on for years. During that time, in July 2014, Balsiger’s lawyer, Joseph Sib Abraham, passed away.
 
U.S. District Judge Charles N. Clevert, Jr. was notified in August 2014, and a lawyer who worked with Abraham said Balsiger expected to hire new counsel within 30 days.  Yet by early December 2014 no new attorney had appeared in the case and Balsiger claimed he could not then hire a new attorney due to financial difficulties.
 
Clevert set trial for October 2015.
 
At a status conference in early January 2015 Balsiger told Clevert he planned to hire El Paso attorney Richard Esper, and asked for a deadline of April 1, 2015, to hire Esper. Balsiger said he did not have sufficient funds and could not sell his home because of a filing the government made against the property.
 
Clevert soon learned that Esper could not be ready for trial until 2017 at the earliest. The judge also found that Balsiger could afford to hire a lawyer and ordered him to hire someone by Feb. 17, 2015.
 
The court found that Balsiger was not working diligently to hire counsel and warned that failure to hire an attorney would be considered a waiver of the right to counsel.

By Margo Kirchner

Robert W. Huber Jr. spent 18 years too many in prison or on probation because of bureaucratic blunders and refusal to listen to his protests.
 
Now a federal appeals court has cleared the way for his civil rights lawsuit to proceed.
 
Huber is seeking damages for violations of his constitutional rights. U.S. District Judge J.P. Stadtmueller granted summary judgment to the defendants, holding that Wisconsin’s six-year statute of limitations barred most of Huber’s claims and that no reasonable jury could find in Huber’s favor on any remaining ones.
 
Huber appealed. On Monday, the Seventh Circuit Court of Appeals reversed, reinstated Huber’s claims, and remanded the case for further proceedings. The appellate court denied Huber’s request to reassign the case to a different district judge, however.
 
Huber pleaded guilty in 1988 in Milwaukee County Circuit Court to fraudulently using another man’s credit card for charges totaling $800. His sentence, originally a four-year probation term, turned into a 25-year odyssey of probation and prison.
 
First, an additional three years of probation were tacked on because Huber failed to pay restitution.
 
“With that extension, his sentence should have ended on November 3, 1995,” U.S. Circuit Judge Diane P. Wood wrote for the three-judge panel of the Seventh District Court of Appeals. “But it did not.”
 
Wood was joined in her opinion by U.S. Circuit Judges Joel M. Flaum and Frank H. Easterbrook.
 
First, in May 1993 and while still on paper, Huber stopped showing up for appointments with his probation agent. He was arrested in November 1994, but the state did not move to revoke his probation or to extend it. His agent even wrote that his discharge date was “11-3-95.” Later, in her last entry before Huber’s discharge date, the agent wrote, “no changes – all ok.”
 
“November 3 came and went without any action; no release, no modification of Huber’s probation, no formal extension,” Wood wrote. “Two weeks later, without any reference to her repeated notes acknowledging the November 3, 1995 release date, (Probation Agent Gloria) Anderson issued an apprehension request for Huber.”
 
Huber argued for years that his probation term expired on the November 3, 1995 date. But, he alleges, various probation officers and Wisconsin Department of Corrections (DOC) officials did little or nothing to investigate whether his probation was illegally extended. Not until October 2013 did officials determine that Huber was right.
 
Huber was arrested in January 1996, not terribly long after Anderson issued her apprehension request.
 
Anderson and her supervisor, Elizabeth Hartman, then told him that his probation had been suspended from May 1993 to November 1994 and he still had time to serve. They had him sign a form requesting reinstatement of his probation. Huber alleges that the form was blank at the time and changed later to make it appear that he admitted to absconding from probation.
 
Huber’s probation was extended to July 1998.
 
Another absconding led to more extensions, until in October 2000 Huber’s probation was revoked, resulting in a 10-year prison sentence for an $800 credit card fraud conviction that originally netted him four years of probation.

By Gretchen Schuldt

​Mark Fritz could not find a job as a teacher after the State Department of Public Instruction posted on its public website that he was "under investigation" for immoral conduct.

He couldn't find out what was in the report, which was submitted by the Racine Unified School District. DPI wouldn't tell him.

This went on for 17 months.

Then, shortly after he hired a lawyer and demanded a hearing, DPI cleared his name and removed it from public purgatory. 

And now the Seventh Circuit Court of Appeals has ruled that Fritz's due process rights were not violated.

In a concurrence, though, U.S. Circuit Judge David Hamilton suggested the state may face due process problems in the future. The public identification of a teacher under investigation for immoral conduct can render that teacher unemployable until the investigation is resolved, he said.

"If that’s correct, the teacher may well be entitled at least to notice of the charge being investigated and a name‐clearing hearing – and within a reasonable time," he wrote.

Fritz resigned from his teaching job in March 2012. He learned later that month, and only when he was turned down for another job, that DPI had listed him as "under investigation."

State law requires DPI to "post on the department's Internet site the name of the licensee who is under investigation" if a complaint is made against an individual.

"For the next 17 months, he was in legal limbo: he was practically un‐hirable, yet he was un‐ able to discover why he was under investigation, and had no idea when it might end," Hamilton wrote.

Wisconsin Administrative Code requires DPI to notify the person under investigation of the specific allegations and allow that person a chance to respond, he said.

"Fritz alleges here that he did not receive the required notice," Hamilton said. "As a result, Fritz was in limbo indefinitely and did not know why."

By Margo Kirchner​

A federal appeals court last week vacated a $10 million award to employees of Pewaukee’s Waterstone Mortgage Corporation for wage and hour violations because the claimants arbitrated as a group.
 
The Seventh Circuit Court of Appeals, citing the U.S. Supreme Court decision in another Wisconsin-based case involving Epic Systems, of Verona, held that a Waterstone employee’s employment agreement limiting arbitration to a single claimant does not violate the National Labor Relations Act’s protections.
 
Pamela Herrington sued Waterstone in U.S. District Court in Madison, asserting that the company failed to pay her minimum wages and overtime as required by the Fair Labor Standards Act (FLSA).  Under FLSA, claims may be brought as collective actions, meaning that other employees may opt in to the lawsuit.  Herrington filed her case as a collective action and 174 other Waterstone employees eventually joined her case.
 
Herrington’s employment agreement, however, contained an arbitration clause covering employment disputes.  The clause said Herrington’s arbitration could not be joined with or include any claims by others against Waterstone.
 
U.S. District Judge Barbara B. Crabb agreed with Herrington’s argument that any waiver of the right to join the claims of others was invalid under the National Labor Relations Act (NLRA), which protects the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
 
Crabb’s decision aligned with applicable law at the time. The National Labor Relations Board had determined that the right to engage in concerted activities for mutual aid or protection included the right to pursue collective or class claims. The Seventh Circuit later reached the same conclusion in a case involving Epic Systems.
 
As a result, Crabb struck the portion of the arbitration clause that waived collective or class action. She then sent the case to arbitration with instructions that Herrington be allowed to join other employees in her arbitration proceedings.  The arbitrator allowed other employees to opt in and, after further proceedings, awarded the claimants over $10 million in damages and fees.
 
Crabb then enforced the award through a court judgment, and Waterstone appealed to the Seventh Circuit.
 
While Waterstone’s appeal was pending, the U.S. Supreme Court overruled the Seventh Circuit’s decision in the Epic Systems case and held that an arbitration clause limiting arbitration to a single claimant does not violate the NLRA’s protection of concerted activities.
 
The Supreme Court’s decision meant the waiver in Herrington’s employment agreement was lawful and Crabb was wrong to strike it, the Seventh Circuit said in the Herrington case.
 
Herrington also argued the arbitration clause still allows for collective or class arbitration despite the waiver.
 
U.S. Circuit Judge Amy Coney Barrett, in the decision, called the argument “weak” and suggested it was “implausible,” but remanded the case to Crabb for a determination. Barrett was joined in her decision by U.S. Circuit Judges Amy J. St. Eve and William J. Bauer.
 
If Crabb agrees with Herrington, Crabb could confirm the $10 million award. If Crabb finds that Herrington’s arbitration is limited to her claims alone, the case could be sent back to arbitration for new proceedings.

By Margo Kirchner

​Negligent – even reckless – horseback-riding facilities in Wisconsin are immune from liability for harm they cause customers, the U.S. Court of Appeals for the Seventh Circuit confirmed last week.

The decision addressed two cases.  In the first case, Holiday Stables employees sent Judy Dilley out on a horse without instructions or a helmet, even though Dilley had told a staffer she lacked prior horseback-riding experience. The employees also failed to adjust her stirrups.
​
On the trail, Dilley told the guide riding in front of her that she did not have hold of the reins of her horse, Blue. The guide told her not to worry because Blue, who often carried small children, knew where to go.

After about 20 minutes, Blue attempted to pass the guide’s horse, which kicked at Blue. Blue reared, throwing Dilley to the ground.

Dilley suffered a head injury, fractured ribs and vertebra, and punctured lung.

In the second case, Abigail Brown sued over multiple leg fractures sustained during a riding lesson. Brown took her own horse, Golden Gift, to Country View Equestrian Center in Monroe for the lesson. During the lesson Country View’s instructor allowed a second rider and horse to enter the arena, knowing that the second horse was high spirited. The second horse sped off, bucking and colliding with Golden Gift, tossing Brown from her horse.

Both women were from out of state and so sued in federal court. They lost there and appealed.
The court interpreted the state’s equine-immunity law that, with some exceptions, protects trail operators and riding instructors from paying a rider for injuries.

U.S. Circuit Judge Diane Sykes wrote for the Seventh Circuit panel, joined by Circuit Judges Joel Flaum and David Hamilton.

Under the statute, a person or facility renting out horses or receiving pay for riding lessons is generally immune from civil liability if a participant is injured due to “an inherent risk” of the equine activity.

​"Inherent risk" means “a danger or condition that is an integral part of equine activities” and includes collisions between animals, the unpredictability of a horse’s behavior or reactions to its surroundings, and the potential of a person participating in the activity to act negligently.

Dilley argued that because negligence of a trail operator is avoidable, it is not an “integral part” of horseback riding and thus immunity does not arise. The Seventh Circuit rejected her argument based on the statute’s text.

The court also rejected Dilley’s alternative argument that her case fit a couple exceptions to immunity. One exception permits recovery of damages when a trail operator provides a horse “and fails to make a reasonable effort to determine the ability of the person to engage safely in an equine activity or to safely manage the particular equine provided.”

Dilley argued that the exception applies when the operator “fails to . . . safely manage” a horse, while Holiday argued that the exception applies only when an operator fails to assess “the ability of the person . . . to safely manage” the horse.

With no Wisconsin Supreme Court interpretation of the language on the books, the Seventh Circuit predicted how the state’s high court would rule. Declaring the task “not difficult,” the Seventh Circuit agreed with Holiday’s interpretation.

The exception does not affect immunity for the trail operator’s negligent management of a horse, said the court.

By Gretchen Schuldt

​A federal appeals court on Friday reversed the $6.7 million verdict against the county awarded in a lawsuit brought by a woman who was raped by a corrections officer in the Milwaukee County Jail. 

The Seventh Circuit Court of Appeals panel found that former Corrections Officer Xavier Thicklen was acting outside the scope of his duties for the county when he raped the woman and forced her to perform oral sex on him.

The court threw out the jury verdict only against the county. Thicklen also was named as a defendant. The verdict against him still stands.

The three-judge panel, in an opinion written by U.S. Circuit Judge Daniel A. Manion, said U.S. District Judge J.P. Stadtmueller should have relied on what he believed the Wisconsin Supreme Court would do when he ruled on a county motion to dismiss the case against it because Thicklen acted outside the scope of his job; instead, Stadtmueller relied on one of his own decisions and let the lawsuit move forward.

Manion referred to the the Wisconsin Supreme Court's standard as "time-worn." 

"Conduct is not in the scope if it is different in kind from that authorized, far beyond the authorized time or space, or too little actuated by a purpose to serve the employer," he wrote.

Manion was joined in the decision by U.S. Circuit Judge Amy Coney Barrett and U.S. District Judge Robert W. Gettleman.

Thicklen, the corrections officer, resigned from his job when his activities came under investigation. He eventually pleaded guilty to felony misconduct in office for providing the inmate with contraband and calling her grandmother, and served three days in the House of Correction. He did not attend the three-day federal civil trial.

Thicklen raped the woman in the jail when she was 19 and eight months pregnant. Four days after she gave birth, he demanded she perform oral sex, according to testimony. There was additional sexual contact as well.

After running through previous Seventh Circuit interpretations of scope of duties, Manion wrote, "even when viewing the evidence in the light most favorable to (the woman) and the verdict, we hold no reasonable jury could find the sexual assaults were in the scope of his (Thicklen's) employment. ...The evidence negates the verdict."

Milwaukee County trained Thicklen not to have sex with inmates and how to avoid invitations to have sex with inmates, Manion wrote.

"The undisputed facts and reasonable inferences point ineluctably to the conclusions that Thicklen’s abhorrent acts were in no way actuated by a purpose to serve County," Manion wrote. "He raped (the inmate) for purely personal reasons, the rapes did not benefit County but harmed it, he knew the rapes did not serve County, and the rapes were outside the scope."

Manion expressed sympathy for the woman who, with the county's dismissal from the case,  "loses perhaps her best chance to collect the judgment. But (the law) does not make public employers absolute insurers against all wrongs."