court of appeals reads law narrowly, denying confidential name change for transgender youth1/24/2023 By Gretchen Schuldt
A transgender young man who sought a confidential name change to reflect his gender is not entitled to it because he could not show that publication of his name change petition would more likely than not put him in physical danger, the state Court of Appeals ruled. While another judge might rule differently, Brown County Circuit Judge Tammy Jo Hock did not abuse her discretion in refusing to grant the request, Appellate Judge Gregory B. Gill Jr. wrote for the three-judge District III Court of Appeals panel. Gill was joined in the decision by Appellate Judges Thomas M. Hruz and Lisa K. Stark. Robert, as he is identified in the decision, began questioning his gender identity when he was young and began wearing men’s clothing and going by his male name in elementary school. “Students ‘verbally abused’ Robert for wearing men’s clothes and for using a ‘male’ name, and they reportedly called Robert ‘a fat ugly lesbian,’ ” Gill wrote. “According to Robert, these same students also ‘kicked and punched’ him.” A teacher repeatedly said that Robert ‘had bad parents’ because they allowed him to wear male clothing and use a male name, Gill wrote. The same teacher called Robert ‘an ugly little girl’ ” and, when he cried, “the teacher threatened to audiovisually record Robert so that others could see that he was ‘acting like a girl and not like a boy,’ ” Gill said. In middle school, students called Robert derogatory names, threatened him, and beat him up. A note left in his locker told him to kill himself. The resulting anxiety led Robert to be hospitalized in a psychiatric unit, Gill said. Robert transferred schools and things got better, though one student bullied him and one teacher refused to use his preferred pronouns. Outside of school, though, the bullying continued, Gill said. Kids in the neighborhood called him names, threatened to shoot him with a BB gun, and beat him up. He had sex change surgery and now physically appears as a 17-year-old boy. Hock rejected Robert’s name change petition without holding a hearing on the matter. She found that the “test is not whether a person is uncomfortable with public disclosure of a name change but rather if the publication required under Wisconsin statutes would endanger the individual.” Robert already was using his male name with family members, at school, and in personal dealings, she said. Anyone who has contact with him knows that he is transitioning and uses a male name, she said. Robert appealed the ruling, arguing, among other things, that the law required him only to show that he could be endangered by the petition’s publication and that the word “endanger” includes physical, mental, or emotional harm. The state, in opposing Robert, argued that he must show that it is more likely than not that he could be physically endangered if the name change is published. Showing that he faced the mere possibility of endangerment is insufficient, the state argued. It also said “endanger” referred only to physical harm. “While we agree that we cannot ignore the legislature’s use of the word ‘could,’ Robert’s interpretation would essentially erase the requirement that a petitioner prove endangerment by a preponderance of the evidence because anything is ’possible,’ ” Gill wrote. Instead, he said, “the burden is on a petitioner to demonstrate the likelihood of a future event, and he or she must demonstrate that it is more likely than not that future endangerment is possible.” The appeals panel also agreed with the state that “endanger” does not include mental harm. The intent of the confidentiality statute, as shown through legislative correspondence to the bill’s drafters, was to “allow a victim of domestic abuse to petition the court for an exemption” to publishing a name change petition, Gill wrote. While not conclusive, the note “confirms that ‘endanger’ deals with physical harm, not emotional or mental harm,” he said.
0 Comments
By Gretchen Schuldt A woman had a reasonable belief that she was not free to leave a parking lot after police officers parked in a way that made it difficult for her to drive away, shined a “take down” spotlight into her car, and knocked on her car window and announced themselves as law enforcement, the State Court of Appeals ruled last week. District IV Appellate Judge Brian W. Blanchard, in upholding a decision by Jefferson County Circuit Judge William V. Gruber to suppress evidence, found that the state did not “show that the court clearly erred in finding that a reasonable person in (Annika) Christensen’s position would have had, in the words of the court, an ‘actual or perceived inability to’ drive away from the police.” Blanchard remanded the case back to Circuit Court, where Gruber had already dismissed the four misdemeanor counts filed against Christensen. Christensen, then 21, was arrested in November 2019 as she and a passenger sat in her car in a parking lot about 6:49 p.m. The lot, owned by the Department of Natural Resources, had a single entrance/exit, and trees blocked Christensen from driving forward or to the right, according to the decision. Town of Lake Mills Police Sgt. Ryan Walters, who was with Officer Vincent Pagliaro, drove a police truck into the lot and parked behind Christensen’s car and another car parked next to it, Blanchard wrote. The officers activated their take-down lights. Pagliaro testified in Circuit Court that Christensen’s car drew his attention because “it was parked while there was snow falling, it was running, its windows were fogged, and it was sitting in the dark,” according to a defense brief filed by attorneys Teuta Jonuzi and Tracey A. Wood. They added: “Pagliaro acknowledged that it would not be uncommon for fogging of windows to occur when it is cold outside and the heat is turned on in the vehicle.” Walters, though, said “he did not note the window fogging until he approached Christensen’s vehicle, and it was not part of his decision-making process in electing to make contact with Christensen’s vehicle,” Jonuzi and Wood wrote. “Similarly, he did not note any signs of drug activity with the vehicle before he made contact with Christensen. Per Walters, had Christensen attempted to drive her vehicle away, she would not have been free to do so.” Walters testified in Circuit Court, they wrote, that neighbors had complained about drug activity in the lot and that he had previously arrested people for drug offenses there. A subsequent open records request to the Lake Mills Police Department revealed, however, that there had been only one previous drug arrest in the parking lot. Walters later testified that he had arrested three juveniles in the lot five years earlier and that those were the only arrests he had made. There had been no drug-related contacts in the lot since then, Wood and Jonuzi wrote. The officers differed in how far they said they parked behind Christensen’s car. Pagliaro said about 30 feet, while Walters said about 10 feet, Blanchard wrote in his decision. Both said Christensen had room to leave, “although Sgt. Walters testified that ‘[i]t would have been tight,’ ” Blanchard wrote. Walters said he did not know whether Christensen would have been able to leave in “one maneuver” or whether she would have to “back up and pull forward to go around the back side of my vehicle.” Gruber found Walters’ testimony more convincing and accepted it. Blanchard said video of the truck’s position was not included in the appellate record and so he accepted the Circuit Court’s finding. After Walters activated the spotlight, Blanchard wrote, Pagliaro got out of the police truck and approached Christensen’s car on the passenger side. He announced he was a police officer and knocked on the front passenger-side window. The passenger rolled down the window and the smell of burned marijuana wafted out of the car. Christensen was charged with possession of marijuana, possession of paraphernalia, and two counts of possession of narcotics, all misdemeanors. The state, on appeal, argued that the officers’ initial contact with Christensen was a “consensual encounter” and that Fourth Amendment protections did not kick in. Gruber, Jefferson County District Attorney Monica Hall wrote in prosecution briefs, “did not find that Ms. Christensen could not have driven away, just that it would have been difficult for her to do so.” That, she said, is similar to cases in which the state Supreme Court ruled that stopped individuals were not “seized” for Fourth Amendment purposes. Hall argued that Walters’ testimony that Christensen would not be free to leave was irrelevant. “Rather, the analysis is whether, under a totality of the circumstances, an innocent reasonable person in Ms. Christensen's position would feel free to leave under the circumstances,” she wrote. The state maintains that a reasonable person in Christensen’s position would have felt free to do so, she said. Blanchard disagreed. While not the determining factor, he said, “the presence of uniformed officers arriving on the scene in a marked truck, with at least one of the officers getting out and approaching the car on foot, weighs in favor of a seizure. I reject the State’s thinly developed argument to the contrary.” Research on brain development of young adults could have been presented in 1997, appeals court says9/9/2022 By Gretchen Schuldt A judge erred when he used new research into the brain development of young adults to grant Jan. 1, 2023, parole eligibility to a man previously sentenced to life without parole, the state Court of Appeals has ruled. Existing case law prohibited Outagamie County Circuit Judge John DesJardins, now retired, from using the research as a “new factor” in Jonathan Liebzeit’s case “because the research and its conclusions were well known at the time of Liebzeit’s sentencing in 1997,” Appellate Judge Gregory B. Gill wrote for the three-judge District III Court of Appeals panel. He was joined in the opinion by Appellate Judges Lisa K. Stark and Thomas M. Hruz. DesJardins sentenced Liebzeit in 1997 to life without parole for his role in the 1996 murder of Alex Schaffer. Liebzeit, who had just turned 19, and two other men, Daniel Mischler and James Thompson, lured Schaffer into sewer tunnels where Liebzeit hit him repeatedly with a baseball bat, including in the head. The other two men held Schaffer in a pool of water until he stopped moving. The medical examiner determined that Schaffer died by a combination of drowning and blunt force trauma. The state Department of Corrections, in a pre-sentence report, noted Liebzeit’s long history of drug abuse, particularly with inhalants; his participation in a drug and alcohol treatment program; and his failed effort to get admitted to Winnebago Mental Health Institute due to suicidal tendencies. In 2019, 22 years after sentencing Liebzeit, DesJardins attended a judicial education seminar, where he learned about new research on brain development in emerging adults. He later wrote to Liebzeit’s appellate counsel and the state “suggesting that a sentence modification may be appropriate based on new scientific research…that was not available at the time of the 1997 sentencing,” Gill wrote. Liebzeit’s lawyer, Rex R. Anderegg, filed such a motion, citing both the new research and Liebzeit’s brain damage stemming from inhalant use. Information about the brain damage, included in a separate report concerning Liebzeit’s drug treatment, was not presented to the court at sentencing. DesJardins held a hearing, Gill wrote. “The court concluded that Liebzeit had proven by clear and convincing evidence that both the new scientific research on brain development in emerging adults, and Liebzeit’s brain damage resulting from his own inhalant use constituted new factors,” Gill wrote. DesJardins found that “the impact the brain damage may have had on Liebzeit’s impulse control was relevant to whether Liebzeit was likely to be successfully rehabilitated,” Gill said. DesJardins also found that “new scientific research on brain development in emerging adults had found that individuals between 18 and 21 years old function closer to adolescents aged 13 to 17, than adults aged 22 to 25 years old.” DesJardins eventually granted the sentence modification making Liebzeit eligible for parole Jan. 1. His case still would have to be considered by the Parole Commission. The appeals court, however, agreed with the state that nothing showed that Liebzeit’s inhalant use contributed to his impulsivity. “At best,” Gill wrote, “the (drug treatment) report shows that his brain damage might have affected his concentration. But the crimes for which he was convicted were not impulsive crimes caused by an inability to concentrate.” The crime was not impulsive, but planned, Gill said. DesJardins found at the time of sentencing that Liebzeit could not be rehabilitated. Liebzeit’s “new science” argument fails because under state Supreme Court precedent, Gill wrote, “the research cannot constitute a new factor…because the conclusions reached by the research were well known when Liebzeit was originally sentenced in 1997.” By Gretchen Schuldt A court cannot refuse the return of property based on unproven allegations in a criminal complaint that never went to trial and that the defendant never had a chance to contest, the state Court of Appeals recently ruled. “The state had a fair opportunity to introduce evidence that (John Dean) Pleuss used the shotgun in the commission of a crime during the initial proceedings but failed to do so,” Appellate Judge Brian W. Blanchard wrote for the three-member District IV Court of Appeals panel. He was joined in his decision by JoAnne F. Kloppenburg and Michael R. Fitzpatrick. Before Pleuss, now 78, can get his gun back, however, he must return to Monroe County Circuit Court and demonstrate that his failure to file a motion for the return of property by the statutory deadline was excusable neglect. State law requires filing within 120 days of a defendant’s initial appearance; Pleuss filed his motion 127 days after his initial appearance, according to a brief filed by Assistant State Attorney General Donald V. Latorraca opposing the return. Pleuss allegedly pointed a shotgun at a deputy on Oct. 1, 2020, and the deputy pushed the barrel away, according to the state's brief. As the two talked, Pleuss denied pointing it at the deputy. Pleuss also refused to show the deputy his driver’s license, instead displaying his concealed carry permit, the brief said. Pleuss was arrested later that day and charged with intentionally pointing a firearm at or towards a law enforcement officer, disorderly conduct, and operating a vehicle without carrying or displaying a license. Pleuss had an initial appearance, according to a defense brief filed by attorney Steven L. Miller, but there were no other court proceedings before the charges were dismissed. The state said the charges were dismissed in exchange for an apology from Pleuss and his participation in a gun safety course. When Pleuss sought the return of the shotgun, the prosecutor told Circuit Judge Mark L. Goodman that the state met its burden of establishing that the shotgun was contraband. “I think the state has done that by the filing of the criminal complaint that demonstrates probable cause of the crimes therein,” the prosecutor said. Pleuss objected to the state’s total reliance on the complaint, arguing that the state did not meet its “‘burden…in any way, shape, or form,’” Blanchard wrote. Goodman ruled that Pleuss missed the deadline for seeking return of the gun and that the state had proven, based on the complaint, that the shotgun was used in a crime. The state, on appeal, said the allegations in the complaint were “substantive evidence” and were admissible hearsay in court. The panel, though, found that the complaint did not meet the standard of trustworthiness required for admissible hearsay as a public record. "While it is true that a police report standing alone may be admissible evidence ... the State here unambiguously relied exclusively on the factual allegations in the criminal complaint as purported evidence and did not call a witness to offer the police report as piece of evidence," Blanchard wrote. "The factual allegations in criminal complaints have no evidentiary value unless the applicant has admitted to them or at least failed to dispute them," he said. Pleuss never admitted in any form that the charges against him were true, Blanchard said. “In the circuit court Pleuss consistently objected to the state’s use of the allegations in the complaint as evidence,” he said. The state, he said, “completely failed to meet its burden of proof.” In returning the state’s missed-deadline argument to Circuit Court, the panel ruled that a flat declaration that the deadline was mandatory could negatively affect others, such as victims, who might have property seized during an investigation and might not even learn that their property is in law enforcement custody until after the 120 days have passed. By Gretchen Schuldt A woman convicted of child abuse and neglect will be sentenced anew because Lafayette County District Attorney Jenna Gill breached the plea agreement reached with her, under a state Court of Appeals ruling. In addition, Jamie Lee Weigel's lawyer, Peter A. Bartelt, "provided ineffective assistance in not objecting to the state's substantial material and substantial breach of the plea agreement," District IV Appellate Judge Jennifer E. Nashold wrote for the three-judge panel. She was joined in the opinion by Appellate Judges JoAnne F. Kloppenburg and Rachel A. Graham. Weigel was charged with two counts of child abuse and two counts of chronic child neglect in connection with the care of her two young children. Her partner, the children's father, also was charged. Weigel reached a plea deal under which the state agreed to recommend a sentence of no more than 20 years, including both prison and extended supervision time. As part of the deal, Weigel pleaded guilty to one count of child abuse resulting in great bodily harm and one count of chronic child neglect causing bodily harm. The other two counts were to be dismissed but read in at sentencing. When the children's father was sentenced to 20 years in prison and five years of probation, Lafayette County Circuit Judge Duane M. Jorgenson "appeared to assign greater culpability to Weigel, remarking that Weigel’s conduct was worse than the father’s," Nashold wrote. "Thus, both the defense and the State assumed it was unlikely that Weigel would receive a lesser sentence than the father received." A Department of Corrections pre-sentence investigation recommended a sentence of 14 years in prison and six years of extended supervision. Bartelt submitted a sentencing memo based on an alternative PSI. The memo recommended 10 years in prison, 10 years of extended supervision, and five years of probation, for a total sentence of 25 years. At the sentencing hearing, Gill said the state's recommendation was for 14 years in prison and six years of extended supervision, but then talked about the sentencing memo and said, "So, there’s not a lot that we’re arguing about today. Both parties agree that 25 years in total is appropriate. The only issue then is the amount of initial incarceration." Bartelt did not object to the statement. He said later that he recommended a longer than the agreed-upon sentence because he believed the judge would impose a sentence at least as long as the one handed to Weigel's partner. Jorgenson sentenced Weigel to 20 years in prison and 10 years of extended supervision. Weigel's new lawyer, Cary E Bloodworth, filed post-conviction motions alleging breach of the plea agreement and ineffective assistance by Bartelt. Jorgenson denied them and Weigel appealed. Gill's explicit recommendation for a 25-year sentence at best was an "end run" around the plea agreement, Nashold wrote. "Such indirect undercutting of the plea agreement is ... prohibited." The state argued on appeal that it never promised not to recommend a sentence that included probation. Instead, it said, the state agreed only to limit its recommendation for prison and extended supervision. But, Nashold said, the state did not explicitly recommend probation. "In any event, the State’s argument fares no better even if we assume that the State’s remarks, in full, were meant to convey its recommendation of a 20-year bifurcated sentence followed by a five-year term of probation," she wrote. Rather, the panel agreed with Weigel that “the [S]tate’s attempt to inject a technical definition of the word ‘sentence’ into the context of plea negotiations is misguided.” "Here," Nashold said, "the record shows that both Weigel and the State construed the term 'sentence' broadly, to include any term of probation that might be imposed by the court. At the Machner hearing (a post-conviction hearing regarding the effectiveness of counsel), Weigel testified that she believed that 'everything would be capped at 20 years.' And at sentencing, the state itself used the term 'sentence' to refer to the combined bifurcated sentence and period of probation recommended by Weigel, describing that 'total' 'sentence' as '25 years.' ” The panel rejected the state's argument that Bartelt's sentencing memo implicitly modified the plea agreement and Weigel was not deprived of the benefits of a bargained-for agreement. "We agree with Weigel that her strategy in arguing for a 25-year total sentence does not diminish the significance of the state’s breach," Nashold said. She added: "We also agree with Weigel that – given the circuit court’s apparent view that she was more culpable than the father – it was particularly important that the state adhere to the twenty-year cap that it had agreed to, so as to counteract the effect of the father’s sentence." Bartelt testified that he may not even have realized at the time that Gill breached the plea agreement, Nashold said. "In any event, we agree with Weigel that counsel’s failure to object would constitute deficient performance even if that failure were based on strategic considerations," she wrote. Weigel will be sentenced by a different judge. By Gretchen Schuldt Police did not have probable cause to search a man driving a car that smelled like marijuana when the man himself did not, the state Court of Appeals has ruled. The decision also revolved partly around the issue of whether the smell of illegal marijuana can be differentiated from that of legal CBD. Quaheem O. Moore told two officers after a traffic stop that he was driving a borrowed car. The officers, who said they could smell marijuana emanating from the car, acknowledged that they could not smell it on Moore himself, the District IV appeals panel said in upholding a ruling by Wood County Circuit Judge Nicholas Brazeau Jr. Moore also told officers that a vape pipe he was carrying, discovered during a pat-down for weapons, was for CBD, which is legal in Wisconsin. "The officers...informed Moore that they were going to conduct a search of his person based on 'the odor of marijuana' coming from the vehicle," Appellate Judge Rachel A. Graham said in her decision for the three-judge panel. She was joined by Appellate Judges Brian W. Blanchard and Jennifer E. Nashold. The officers at first found nothing, but eventually found cocaine and fentanyl in two baggies in a hidden pocket behind the zipper of Moore's pants. He was charged with intent to deliver drugs and possession with intent to deliver cocaine, both as a repeater. Moore, represented by attorney Eric Sheets, moved to suppress the evidence. Judge Brazeau acknowledged that "the odor of marijuana in a vehicle, alone, may give officers probable cause to arrest the driver, but...concluded that the officers in this case failed to link the odor to Moore and Moore offered innocent explanations for the odor," Graham wrote. Moore hit the curb with his car when he was pulled over, but Brazeau also said that was largely irrelevant because the officers did not emphasize any signs of intoxication. The officers also had contended they saw Moore throw a liquid from a car, but Brazeau said that, too, was largely irrelevant. The state appealed. Graham, in her opinion, said the state did not even show that the odor was "unmistakably" that of marijuana, as required by state Supreme Court precedent. Graham also rejected the state's contention that officers could infer that Moore's CBD consumption meant he also smoked marijuana. The Supreme Court had directed courts to consider officers' testimony regarding their training and experience in identifying the odor of marijuana, as well as its strength, recency, and source, she said.
"First, the State did not offer any evidence at the suppression hearing that the officers had training or experience that enabled them to reliably identify the odor of marijuana," she wrote. The state "did not elicit testimony or any other evidence that either officer had any training or experience relating to the odor of marijuana," Graham said. "Although the state elicited testimony that both officers had conducted at least one traffic stop prior to the traffic stop in question, neither officer was asked about their training or experience in identifying the odor of marijuana, whether raw, burnt, or in liquid form; in identifying the strength, recency, or source of marijuana; or, in distinguishing the odor of marijuana from other odors, including CBD. The state elicited no testimony that either officer had even smelled the odor of marijuana prior to stopping Moore." The state also said the smell of legal CBD is indistinguishable from that of illegal marijuana and Brazeau accepted that as fact. "Thus, the officers were confronted with two possible explanations for the odor: legal CBD or illegal marijuana," Graham wrote. "If CBD, which is legal, produces an odor that is indistinguishable from THC, which is illegal, then the odor of CBD may be 'mistaken' for the odor of marijuana." Still, officers were not required to accept Moore's explanation that he vaped CBD, she said. "However, with no discernible ability to identify the odor of marijuana or distinguish it from CBD, the officers could not rule out CBD, or even meaningfully undermine it, as the source of the odor. ... The odor cannot be unmistakably that of marijuana if officers are unable to rule out an innocent explanation for the odor," Graham wrote. The state also failed to link Moore's vaping device to marijuana, Graham said. She also rejected the state's contention that officers could infer that Moore's CBD consumption meant he also smoked marijuana. "Neither officer testified to having knowledge, based on their training and experience, that people who consume CBD are more likely to consume THC, and the State has not explained why it would be reasonable to draw that inference regardless of the lack of factual support," she said. "We conclude the officers lacked probable cause to arrest Moore. ...Therefore, the search of Moore was not a lawful search incident to arrest," Graham wrote. Moore was represented on appeal by attorneys Tracey A. Wood and Joshua Hargrove. The state was represented by Assistant Attorney General Jacob J. Wittwer and Wood County Assistant District Attorney David Knaapen. By Gretchen Schuldt A court cannot order a private health care provider to implement a treatment that the provider believes is below the standard of care, the state Court of Appeals ruled this week in a split decision. The District II Court of Appeals panel, in a decision written by Appellate Judge Lori Kornblum, reversed a ruling by Waukesha County Circuit Judge Lloyd Carter and said that Aurora Health Care did not have to administer ivermectin to a COVID-19 patient. Kornblum was joined in the decision by Appellate Judge Lisa S. Neubauer. Ivermectin is primarily used as an anti-parasitic in farm animals and is given to humans to treat some parasites and scabies. It has not been approved by the FDA for COVID-19 treatment. Appellate Judge Shelley A. Grogan dissented, saying that Carter made a reasonable ruling when he issued an injunction directing Aurora to credential a doctor willing to give the treatment to the patient, John Zingsheim. The suit is one of several similar suits involving New York attorney Ralph Lorigo that have been filed around the country. In the Wisconsin case, Lorigo represented plaintiff Allen Gahl, Zingsheim's health-care representative. Gahl also was represented by attorney Karen L. Mueller, a far-Right candidate for Wisconsin attorney general. "Requests for injunctive relief must be premised on the existence of a viable legal claim upon which the petitioner can show a reasonable likelihood of success," Kornblum wrote. "Gahl fails to meet this foundational requirement. ... Because Gahl has failed to identify any law, claim, or recognized cause of action under Wisconsin law by which a patient may compel a health care professional to administer a course of treatment contrary to that medical professional’s judgment, the court erroneously exercised its discretion in granting Gahl injunctive relief." Zingsheim, 60, was admitted to the hospital in September 2021 and placed in the intensive care unit. He was intubated on Oct. 3, but his condition deteriorated. He was offered other treatments, accepting some and declining others. "Gahl, 'losing hope for [the patient’s] survival,' searched for 'an alternative treatment' and became aware of the proposed treatment" (ivermectin), Kornblum said, adding in a footnote that there is no evidence that Gahl is a doctor "or a medical professional of any kind." Gahl obtained a prescription for the drug from Dr. Edward Hagen, who did not examine Zingsheim but prescribed a drug for him based on talking to Gahl. The hospital refused to administer the drug, however, because officials believed that doing so would not meet the standard of care. Gahl went to court in an effort to force Aurora to comply with his wishes. "Importantly, Gahl initially did not submit an affidavit from Hagen or any other licensed medical professional ...explaining why the proposed treatment was necessary for this patient or within the standard of care," Kornblum wrote. Aurora argued that there is no legal authority in the state compelling a health care provider to administer a treatment the provider believes to be below the standard of care. Aurora also said that Hagen did not even have access to Zingsheim's medical records and "raised its concern to the court that the Wisconsin State Licensing Board had previously disciplined Hagen for prescribing medications to a person who was not his patient and whom he had not examined." Hagen admitted to the state Medical Examining Board that he prescribed drugs, including opiates, to a neighbor for about 1½ years without examining him beforehand. He also said he did not keep medical records on the patient or consult with the patient's physician. The examining board reprimanded Hagen in 2013. Aurora filed affidavits in support of its position, including one that described the risks that ivermectin posed. They include, according to the affidavits, heart damage, liver damage, stroke, kidney damage, hypotension, loss of bodily movement control, seizures, coma, and death. At an October hearing, Judge Carter asked for more evidence and gave the two sides until that afternoon to supplement the record. Among the items Gahl submitted was an unsworn, undated declaration from ivermectin-supporter Dr. Pierre Kory "explaining his support for the use of the proposed treatment for COVID-19 patients," Kornblum wrote. "The declaration is conspicuously devoid of any discussion of the patient in this case." "None of the documents Gahl filed relating to Kory establish that Kory ever examined this patient or spoke with this patient’s treating medical providers. ... At no time did Gahl submit any medical information from any health care professional who had actually examined this patient, reviewed this patient’s records, or who could give a medical opinion to a reasonable degree of medical probability about the benefits of the proposed treatment on this patient at this time," she wrote. Carter ordered Aurora to administer ivermectin but also set a hearing for the next day to allow Aurora to give reasons why his order should not go into effect. "While the court cited the criteria for granting a temporary injunction at the hearing, the court never applied those criteria to the facts of the case on the record or in the order," Kornblum said. "The court failed to identify which, if any, legal claim asserted by Gahl in the petition provided a basis for the injunctive relief requested, much less the legal authority supporting such a claim." Aurora sent a letter to the judge objecting to the order and saying it was "problematic." "I am not aware of any orders written by Dr. Hagen, but am aware of a prescription written by Dr. Hagen for [the proposed treatment] 66mg to be taken once daily," the letter said. "The prescription does not indicate from where [the proposed treatment] is to be obtained or how the tablets are to be administered to a patient who is intubated and sedated. Finally, the Order provides that Aurora is to administer [the proposed treatment] 'as further ordered by Mr. Gahl.' Mr. Gahl is not a healthcare provider." At the hearing the next day, Aurora said the patient was improving and no longer tested positive for COVID. "Gahl’s attorney switched his argument from using the proposed treatment as an emergency treatment for COVID-19 to giving the proposed treatment for 'COVID and the damages that come about as a result of COVID,' ” Kornblum wrote. Carter modified his order somewhat, ruling that Gahl should find a physician willing to administer the drug and to whom Aurora could grant credentials to practice in its hospital. Once credentialed, that doctor would have permission to go to the hospital and administer the ivermectin to Zingsheim. "At no point did the court issue an oral or written order explaining whether or how Gahl had established the ... criteria for injunctive relief. The court also did not identify any claim set forth in Gahl’s petition which supported the request for relief, much less the legal authority supporting the claim," Kornblum said. Aurora appealed. Gahl effectively acknowledges that ivermectin treatment is below the accepted level of care, Kornblum said. "He admits that using the proposed treatment for COVID-19 is not approved by the FDA, as it is an 'off-label use of the drug,'" she wrote. "We do not decide the medical question of what the standard of care should be. We are not doctors. We decide the legal question, as both Aurora and Gahl agree, of whether the court has the authority to order Aurora to provide treatment that is below the currently accepted standard of care for COVID-19," she said. "The court failed to identify any viable claim upon which the temporary injunctive relief was granted, and as such, Gahl did not show a reasonable likelihood of success on the merits," Kornblum wrote. Injunctions are used to preserve the status quo, Kornblum said, but "the court’s order neither preserved nor restored the status quo between the parties, but instead altered the status quo and granted much, if not all, of the relief Gahl ultimately seeks in this case." "Recognizing that he has failed to identify any legal basis for the circuit court’s action, Gahl urges us to ignore the law based on his assertions that the treatment protocols for COVID-19 are wrong. ... These criticisms do not empower us to order a private health care provider to administer a proposed treatment that does not fall within its standard of care when there is no legal authority upon which to do so. Our role is to interpret and apply the law as written. We are bound by the law, and the law in this case does not provide a basis for judicial intervention," she said. In dissent, Grogan said the issue at hand was not, as Aurora argued, whether a court could order a provider to offer care below the standard of care; it was, instead, whether Carter erroneously exercised his discretion in granting the injunction. "Based on the record," she wrote, "it is clear the circuit court’s decision was reasoned and based on the record and applicable law." Patients have rights in Wisconsin, she said, including the right to make their own health care decisions, the right to informed consent, and the right to request and receive medically viable alternative treatments. "Although Wisconsin law does not afford a patient the right to demand any treatment the patient desires, it does recognize a patient’s right to request and receive medically viable alternative treatments," Grogan wrote. "The fact that the circuit court was presented with differing opinions about what treatment is proper for Zingsheim suggests the jury is still 'out' as to whether there is only one particular and established 'standard of care' in treating this novel virus. Time will eventually reveal what the standard of care or reasonable alternative treatment is for people in Zingsheim’s position. What is important here is that the circuit court had before it information from two independent physicians (one indicating he was the world’s foremost expert on treating COVID-19) who both agreed that a protocol different than that which Aurora had administered, without success, would be proper and could be beneficial to Zingsheim." By Gretchen Schuldt A man who did not have a chance to cross examine the officer who issued him a citation or to present evidence on a new charge determined by a judge is entitled to a new trial, a state appeals court ruled Tuesday. District 1 Court of Appeals Judge Timothy G. Dugan did not even decide the case on the issue raised by defendant Roosevelt Cooper, Jr. – that he was denied discovery – but instead relied on Milwaukee County's recognition of errors in Cooper's trial. "As the County acknowledged in its supplemental brief, '[a]t no point throughout the trial was Cooper afforded the opportunity to question or cross-examine' the officer and 'Cooper was denied his right to trial,' ” Dugan wrote. "A review of the record confirms the County’s characterization of the proceedings." Cooper was cited in December 2020 for reckless driving / endangering safety. The officer who issued the citation testified at trial before Milwaukee County Circuit Judge Jonathan Richards that the officer observed Cooper speeding and making multiple lane changes while close to other vehicles. The officer said Cooper was driving about 80 mph in a 55-mph zone. The officer's dash cam video showed that Cooper drove on a non-traffic area of the roadway, changed lanes without signaling, and drove faster than the cars around his, Dugan wrote. Cooper said he swerved into the non-traffic area to avoid an accident with a car in front of him when its driver slammed on the brakes. The video, however, was never moved into evidence and Dugan said in a footnote that Cooper was not under oath when he began explaining his actions. "It was not until the county started questioning Cooper following Cooper's explanation of the video that Cooper was put under oath," he wrote. At the end of the bench trial, Richards said he could not see where Cooper endangered safety, but that Cooper was speeding, passed six cars, and drove in the non-traffic area, Dugan wrote. The judge found Cooper guilty of unreasonable and impudent speed. "The county expressed confusion over the finding, and the clerk interrupted saying that Cooper was not charged with speeding," Dugan wrote. The county said it could amend the charge to unreasonable and imprudent speed "and over Cooper’s objection, the trial court accepted the amended charge and found Cooper guilty" of the charge. Richards ordered Cooper to pay a $100 forfeiture, according to online court records. The county, in its appeals briefing, said a judge has the power to amend a charge to conform to the evidence, but that the court also must find that the parties consent to the change, Dugan wrote. That is also state Supreme Court precedent, Dugan said. "The county...concedes that the trial court failed to make any finding that Cooper consented to the amended charge, and in fact, the county maintains that Cooper was clear that he did not consent to the amended charge," Dugan said. "The county also concedes that the trial court failed to give the parties an opportunity to present additional evidence to support the amended charge." In addition, "Despite receiving an assurance that he would have an opportunity to question the officer, Cooper received no such opportunity," Dugan wrote. While he is not required to accept the county's concessions, it is appropriate in this case, Dugan said. "As a result, this court concludes that Cooper is entitled to a new trial on the amended charge of unreasonable and imprudent speed," he said. By Gretchen Schuldt A Meijer Store employee's use of derogatory, homophobic terms when talking about a co-worker disqualified her from unemployment after she got fired for the comments, a divided state Court of Appeals panel ruled recently. Susan A. Wozniak's comments constituted harassment, Appellate Judge M. Joseph Donald wrote in the 2-1 decision for the District I Court of Appeals panel. He was joined by Appellate Judge Maxine A. White. Appellate Judge Timothy G. Dugan dissented. The decision affirms Milwaukee County Circuit Judge William S. Pocan, who ruled in favor of the Department of Workforce Development in its action against the state Labor and Industry Review Commission. LIRC had contended that Wozniak was entitled to unemployment benefits; DWD disagreed. The case began when Wozniak, frustrated that a fellow greeter was not doing his job, complained to co-workers. One of them reported the conversation to management, saying that Wozniak said the co-worker was a “pretty boy,” “fairy,” and “fruit loop.” Wozniak also said that he was gay, and that “the way he skipped around the store made her sick,” according to the appeals court decision. Wozniak, interviewed by management, admitted calling the co-worker a "pretty boy," denied calling him a "fairy," and said if she had used the other terms she should not have done so. Wozniak was suspended and eventually fired. Meijer, in its dismissal, cited Wozniak's “discriminatory remarks towards a team member." Wozniak filed for unemployment, and DWD found that the firing was not for "misconduct or substantial fault connected with her employment." Wozniak was entitled to benefits, the agency said. Meijer appealed. The administrative law judge reversed DWD and ruled that Wozniak was fired for misconduct and not entitled to benefits. Wozniak appealed again, this time to the LIRC. The administrative law judge was overturned and Wozniak was back to being eligible for unemployment compensation. The LIRC vote was 2-1. DWD asked a circuit court to consider the matter, and Pocan eventually ruled that LIRC had erred in finding that Wozniak’s comments did not constitute misconduct or substantial fault. LIRC appealed. Wisconsin law, Donald wrote, defines misconduct as one or more "threats or acts of harassment, assault, or other physical violence instigated by an employee at the workplace of his or her employer.” While the law does not define harassment, DWD and LIRC agreed on a definition as "words, gestures, and actions which tend to annoy, alarm, and abuse (verbally) another person. ... [h]arassment may include verbal abuse, epithets, and vulgar or derogatory language, display of offensive cartoons or materials, mimicry, lewd or offensive gestures, and telling of jokes offensive to protected class members.” Wozniak’s comments were derogatory and aimed at the co-worker's sexual orientation, Donald wrote. "Whether the comments were made directly to the co-worker is of no consequence" under the statute, he said. LIRC contended that Meijer did not provide a definition or examples of harassment in its work rules, Donald wrote, but the law does not require that the company have an anti-harassment policy or rule. There also is no requirement that a person "knowingly" engage in harassment, he said. "We will not read additional language into a statute," he said. Dugan, in his dissent, said that Meijer had not met its burden in showing that Wozniak was fired for misconduct or substantial fault. Harassment that fits the definition of "misconduct" must include an element of intent, which Wozniak's statements did not, Dugan said. "Her comments were not loud enough for anyone to hear," he wrote. "She did not make her comments to customers, and she did not make her comments directly to the co-worker about whom she was complaining. The record is also devoid of evidence that either of these co-workers were offended or unable to continue with their work responsibilities as a result of the conversation. Thus, Wozniak’s comments were part of an isolated incident during a brief, private, casual conversation that does not rise to the level of misconduct and that demonstrates no intent to harass her co-worker within the meaning of" the law. While the majority did not address the substantial fault issue because it already found Wozniak committed misconduct, Dugan did. "As has been repeatedly stated, there is no dispute that Meijer’s workplace rules prohibited harassment but also provided no definition of what was considered harassment under the rule. ...Wozniak would have had no reason to believe that her brief, private conversation with two co-workers would qualify as harassment," he wrote. As its March Salon, Wisconsin Justice Initiative held a virtual candidate forum regarding the race for a seat on the Court of Appeals District II. Incumbent Judge Lori Kornblum discussed her background and answered questions from attendees. Here's the video from the event. Wisconsin's courts of appeals have only 16 judges total, divided into four districts. District II is headquartered in Waukesha. Citizens in the following 12 counties choose its judges: Calumet, Fond du Lac, Green Lake, Kenosha, Manitowoc, Ozaukee, Racine, Sheboygan, Walworth, Washington, Waukesha and Winnebago. Voters statewide should care about this race, however, as the court's decisions have statewide impact. WJI is a nonpartisan nonprofit that takes no position regarding candidates in this or any election. WJI held the Salon and publishes this video for voter education purposes. Kornblum's opponent, Waukesha Circuit Court Judge Maria Lazar, was invited to participate in this event but did not attend. Election day is Tuesday, April 5. |
Donate
Help WJI advocate for justice in Wisconsin
|