Weekly Case Digests — Sept. 22-26, 2014

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Wisconsin Law Journal’s Case Digests — Sept. 22-26, 2014

CIVIL OPINIONS

CIVIL PROCEDURE

U.S. Court of Appeals for the 7th Circuit

Civil Procedure
abstention

Federal courts lack authority to enjoin state John Doe proceedings to protect the First Amendment rights of the targets.

“The Supreme Court has yet to determine what ‘coordination’ means. Is the scope of permissible regulation limited to groups that advocate the election of particular candidates, or can government also regulate coordination of contributions and speech about political issues, when the speakers do not expressly advocate any person’s election? What if the speech implies, rather than expresses, a preference for a particular candidate’s election? If regulation of coordination about pure issue advocacy is permissible, how tight must the link be between the politician’s committee and the advocacy group? Uncertainty is a powerful reason to leave this litigation in state court, where it may meet its end as a matter of state law without any need to resolve these constitutional questions.”

Reversed and Remanded.

14-1822, 14-1888, 14-1899, 14-2006, 14-2012, 14-2023 & 14-2585 O’Keefe v. Chisholm

Appeals from the United States District Court for the Eastern District of Wisconsin, Randa, J., Easterbrook, J.

Wisconsin Court of Appeals

Civil Procedure
sanctions — default judgment

Muhammad Nasir Khan, d/b/a Solo Oil, appeals from the entry of default judgment to Jay’s Petro Mart as a sanction against Khan for non-compliance with court orders. Khan also appeals from the order denying his Wis. Stat. § 806.07(1) (2011-12) motion to reopen the judgment. Because the circuit court properly exercised is discretion in both instances, we affirm. Not recommended for publication in the official reports.

2013AP2278 Jay’s Petro Mart LLC v. Khan

Dist I, Milwaukee County, Pocan, J., Brennan, J.

Attorneys: For Appellant: Anderegg, Rex, Milwaukee; For Respondent: Woehl, Dustin, Milwaukee; Harken, Nick D., Milwaukee

U.S. Court of Appeals for the 7th Circuit

Civil Procedure
separation of powers – standing

A physician who does not accept patients with insurance, and an association of physicians, lack standing to challenge the IRS’ decision to collect the PPACA tax from individuals who lack insurance, but not businesses that fail to insure their employees.

“Plaintiffs rely especially on Bond v. United States, 131 S. Ct. 2355 (2011), which holds that a private person may present arguments based on the Tenth Amendment and the Commerce Clause. Yet Bond does not hold that everyone is entitled to litigate about the division between state and federal authority. The Supreme Court does not think that the Constitution’s structural features are open to litigation by persons who do not suffer particularized injuries. See, e.g., Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 (1974); United States v. Richardson, 418 U.S. 166 (1974). Bond was prosecuted, convicted, and sentenced to prison under a statute that, she contended, Congress lacked the authority to enact. She sought to remain free. Injury, causation, and redressability were easy to establish. Plaintiffs, by contrast, invoke a long and contestable chain of causation; they do not complain about anything done to them personally. That’s why Allen and similar decisions require dismissal.”

“Plaintiffs would be the wrong persons to litigate even if they had standing. Only persons seeking to advance the interests protected by the mandatory-insurance portions of the Affordable Care Act would have a plausible claim to relief. See Lexmark International, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014) (discussing the zone-of-interests requirement). Yet plaintiffs, who do not accept insured patients, want to reduce rather than increase the number of persons who carry health insurance. Someone else would be a much more appropriate champion of the contention that the IRS has not done what it should to accomplish the statute’s goal of universal coverage.”

Affirmed.

14-2123 Association of American Physicians and Surgeons, Inc., v. Koskinen

Appeal from the United States District Court for the Eastern District of Wisconsin, Griesbach, J., Easterbrook, J.

U.S. Court of Appeals for the 7th Circuit

Civil Procedure
class actions – approval

Where a defendant willfully violated FACTA by disclosing the expiration of buyers’ credit cards on their receipts, a class action settlement that provided individual class members nothing of value should not have been approved.

“That RadioShack’s violation probably was willful underscores the meagerness of the settlement value to the class members. Class counsel—a handful of lawyers—divide up a million dollars, under the settlement that the district court approved, while a relative handful of class members (83,000 out of 16 million potential class members) receive only 10 cents on the dollar, since the coupon is only $10 even though the minimum statutory damages for a willful violation is $100. And 10 cents on the dollar is actually an exaggeration of the benefit of the settlement to the class, because the coupons are worth less in the aggregate than their face value. Yet as we also said, given RadioShack’s parlous financial state it would be a mistake to increase the aggregate size of the settlement beyond its current $4.1 million ceiling. Our only concern therefore is the division of spoils between class counsel and class members. It seems apparent that each class member has a valid claim to a good deal more than one $10 coupon, and it would seem therefore that the equities favor a reallocation of some of what we are calling the spoils from class counsel to the class members who have submitted claims for the coupons. We are mindful that recipients of statutory damages are not being compensated for actual injury, but in effect are being paid bounties to assist in efforts to reduce identity theft. But identity theft is a serious problem, and FACTA is a serious congressional effort to combat it.”

Reversed and Remanded in part, and Affirmed in part.

14-1470, 14-1471, 14-1658 & 14-1320 Redman v. RadioShack Corp.

Appeal from the United States District Court for the Northern District of Illinois, Durkin, J., Posner, J.

CIVIL RIGHTS

U.S. Court of Appeals for the 7th Circuit

Civil Rights
equal protection — schools

Where a school district promptly acted when it became aware of ethnic and sexual harassment of a student, the district is not liable.

“Although Doe’s classmates’ actions were inexcusable, the undisputed evidence shows that the defendants are not legally responsible for those actions. Keeping in mind how thoughtless and even cruel children can be to one another, the Supreme Court has interpreted both Title VI and Title IX to impose a demanding standard for holding schools and school officials legally responsible for one student’s mistreatment of another. School officials must have had ‘actual knowledge’ of harassment ‘so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.’ Davis v. Monroe County Board of Education, 526 U.S. 629, 650 (1999). To have actual knowledge of an incident, school officials must have witnessed it or received a report of it. Gabrielle M. v. Park Forest-Chicago Heights, Illinois School Dist. 163, 315 F.3d 817, 823–24 (7th Cir. 2003). To impose liability, school officials’ response to known harassment also must have been ‘clearly unreasonable in light of the known circumstances.’ Davis, 526 U.S. at 648.”

“In this case—even assuming Doe’s harassers were motivated by her sex or ethnicity—once the defendants gained actual notice of behavior that could qualify as severe and pervasive, they took action against the wrongdoers that fell well within their broad discretion. In other words, the defendants were not deliberately indifferent to the harassment of Doe. That conclusion also defeats Doe’s equal protection claim.”

Affirmed.

13-2551 Doe v. Galster

Appeal from the United States District Court for the Eastern District of Wisconsin, Gorence, Mag. J., Hamilton, J.

CONTRACTS

Wisconsin Court of Appeals

Contracts
third-party beneficiaries

Kenneth P. and Maureen Manning (“the Mannings”) appeal from a judgment dismissing their complaint against Super Excavators, Inc.

(“SuperEx”). The Mannings contend that we should reverse the circuit court’s decision on summary judgment and remand this case for a trial because: (1) in dismissing the Mannings’ negligence claim against SuperEx, the circuit court relied on Showers Appraisals, LLC v. Musson Bros., 2012 WI App 80, 343 Wis. 2d 623, 819 N.W.2d 316 (“Shower-Ct. App.”), which has since been reversed by Showers Appraisals, LLC v. Musson Bros., 2013 WI 79, 350 Wis. 2d 509, 835 N.W.2d 226 (“Showers-S. Ct.”); and (2) in dismissing the Mannings’ breach of contract claim against SuperEx, the circuit court improperly concluded that the Mannings lacked standing to bring the claim because SuperEx’s contracts with the Village of Whitefish Bay (“the Village”) did not consider the Mannings to be third-party beneficiaries. Because we agree with the Mannings that Showers-S. Ct. prohibits SuperEx from claiming governmental immunity from the Mannings’ negligence claim, and because we conclude that SuperEx’s contract with the Village is ambiguous as to whether the Mannings are third-party beneficiaries, we reverse and remand for further proceedings consistent with this decision. Not recommended for publication in the official reports.

2013AP1029 Manning v. Vinton Construction Co. et al.

Dist I, Milwaukee County, Conen, J., Brennan, J.

Attorneys: For Appellant: Linn, Paul F., Milwaukee; Wisnefski, Ted A., Milwaukee; Witkov, Adam E., Milwaukee; Watters, Zachary John, Milwaukee; For Respondent: Farley, David J., Milwaukee; Bascom, Timothy A., Milwaukee; Sosnay, Jacob, Wauwatosa; Schmeckpeper, Jeffrey A., Milwaukee; Mentkowski, Timothy, Hartford

IMMIGRATION

U.S. Court of Appeals for the 7th Circuit

Immigration
asylum — CAT

Although the BIA failed to properly distinguish between an alien’s asylum CAT, and withholding of removal claims, the denial of relief is affirmed where the alien failed to demonstrate relief under any of the claims.

“The Board’s analysis in this regard was less than stellar. Although it demonstrated that it had considered Antia-Perea’s evidentiary submissions, the Board neglected to set forth the standards against which those submissions were measured for each form of relief. Nonetheless, it is clear from the Board’s discussion that it denied Antia-Perea’s requests for asylum and withholding of removal because it concluded that the harm Antia-Perea feared was too speculative to merit relief. This is a valid and rational basis on which to deny both types of claim. Asylum applicants who have not been persecuted in the past may demonstrate eligibility for relief only by showing a fear of future persecution ‘that is subjectively genuine and objectively reasonable.’ Georgieva v. Holder, 751 F.3d 514, 522 (7th Cir. 2014). The objective component requires the applicant to prove either a reasonable probability that he will be singled out for persecution or a pattern or practice against a particular group to which he belongs. Id. at 522–23. Similarly, an applicant seeking withholding of removal must demonstrate a ‘clear probability’ of harm by showing that it is ‘more likely than not’ that he will suffer persecution if removed. Hassan, 571 F.3d at 644. This ‘clear probability’ requirement is ‘more stringent’ than the requirements for asylum eligibility. Id. Thus, the Board’s conclusion that Antia-Perea’s evidence did not demonstrate that the Super Cartel was likely to become aware of his daughter’s employment with ICE necessarily undermined both of these claims.”

Petitions Denied.

12-3641, 13-1228, 13-1895 & 13-2737 Antia-Perea v. Holder

On Petitions for Review of Final Orders of the Board of Immigration Appeals, Dow, J.

INSURANCE

Wisconsin Court of Appeals

Insurance
automobile policies — property damage

Karl Anderson appeals a summary judgment dismissing his action against Viking Insurance Company of Wisconsin. Anderson argues the circuit court erred by concluding there was no liability coverage under a Viking-issued policy for the cost of removing a vehicle from Clam Lake. We reject Anderson’s arguments and affirm the judgment. This opinion will not be published.

2014AP222 Anderson v. Viking Insurance Company of Wisconsin

Dist III, Burnett County, Anderson, J., Per Curiam

Attorneys: For Appellant: Biegert, Matthew A., New Richmond; For Respondent: Graham, Thomas J., Jr., Eau Claire; Steffes, Ryan, Eau Claire

PROPERTY

Wisconsin Court of Appeals

Property
homeowners associations — assessments

Brooks Letourneau appeals an order denying a Wis. Stat. § 806.07 motion to vacate a summary judgment for past due lot assessments granted in favor of Voyager Village Property Owners’ Association Inc. We affirm the order. This opinion will not be published.

2013AP2470 Voyager Village Property Owners Association Inc. v. Letourneau

Dist III, Burnett County, Kutz, J., Per Curiam

Attorneys: For Appellant: Handorff, Thomas F., St. Louis Park, Minn.; For Respondent: Lein, Curtiss N., Hayward

TORTS

Wisconsin Court of Appeals

Torts
state employees — damage caps — constitutionality

Terri Fiez and Michael Fiez appeal a judgment awarding them money damages. The issue is whether the statutory cap of $250,000 on damage awards that may be obtained against state employees is unconstitutional. The appellants have not persuaded us that it is unconstitutional, and we therefore affirm. This opinion will not be published.

2013AP2711 Fiez et al. v. Keevil

Dist IV, Dane County, Markson, J., Per Curiam

Attorneys: For Appellant: Farnsworth, Eric A., Madison; Ranney, Joseph A., III, Madison; For Respondent: Gibson, Charlotte, Madison

CRIMINAL OPINIONS

CRIMINAL PROCEDURE

Wisconsin Court of Appeals

Criminal Procedure
new trials — newly discovered evidence

Adrian Starks was convicted in 2008 of two counts of first-degree reckless homicide and one count of conspiracy to manufacture or deliver more than 50 grams of heroin. The charges stemmed from two heroin overdose deaths occurring in 2005. After his direct appeal process was complete, Starks, acting pro se, filed motions with the circuit court seeking a new trial. He now appeals the circuit court’s order denying that request. Starks argues that he should receive a new trial because (1) there is newly discovered evidence, (2) the real controversy was not fully tried, (3) the State committed a Brady violation, and (4) the combined effect of the asserted errors in his case prejudiced his defense. He argues, in the alternative, that the circuit court erred in denying him an evidentiary hearing. All of Starks’ arguments are primarily based on new information about a police officer’s apparent misconduct which, according to Starks, undermines that officer’s pivotal testimony at Starks’ trial. We reject Starks’ arguments, and affirm. Not recommended for publication in the official reports.

2013AP93 State v. Starks

Dist IV, Dane County, Ehlke, J., Lundsten, J.

Attorneys: For Appellant: Starks, Adrian A., pro se; For Respondent: Ozanne, Ismael R., Madison; Johnson-Karp, Gabe, Madison

U.S. Court of Appeals for the 7th Circuit

Criminal Procedure
Ex Post Facto Clause

U.S.S.G. 1B1.10, which prohibits courts from applying retroactive amendments to the guidelines to reduce the sentence of any defendant which was already below the minimum of the amended guidelines, does not violate the Ex Post Facto clause.

“Diggs primarily argues that the effect of the policy amendment to § 1B1.10 was to make his sentence harsher, because if Amendment 750 was enacted at any time between the time he was sentenced and the policy amendment in 2011, he would be eligible for that sentence reduction. Thus, his argument is as follows: the policy amendment was an ex post facto law, because it ‘resulted in [Diggs] receiving a harsher sentence than he would have received under the law in effect at the time he committed his offense.’ However, that final statement is not complete. A more appropriate summarization of Diggs’ argument is that the policy amendment was an ex post facto law, because it resulted in a harsher sentence than Diggs’ would have received if Amendment 750 was in effect at the time of Diggs’ original sentence. This missing language ultimately dooms Diggs’ argument, be-cause he has no constitutional entitlement to a retroactive reduction of his sentence. Dillon, 560 U.S. at 828. Thus, it is ultimately unimportant that the policy amendment changed the policy in effect at the time of Diggs’ sentencing because it affected a law that became more lenient.”

Affirmed.

13-2718 U.S. v. Diggs

Appeal from the United States District Court for the Northern District of Illinois, Kendall, J., Cudahy, J.

Wisconsin Court of Appeals

Criminal Procedure
voluntary intoxication defense — prosecutorial misconduct — harmless error

Jacob Mayer appeals his convictions for criminal damage to property and attempted burglary. Mayer argues that the court erred in refusing to give a voluntary intoxication instruction given the facts presented at his jury trial. Mayer also argues “plain error” occurred when the prosecutor engaged in unprofessional conduct. We affirm Mayer’s convictions. While the prosecutor’s comments during closing arguments were unprofessional and improper, and warrant review by the Office of Lawyer Regulation, both the comments and the court’s refusal to give the voluntary intoxication instruction were harmless as to their effect upon Mayer. Not recommended for publication in the official reports.

2013AP2758-CR State v. Mayer

Dist II, Racine County, Torhorst, J., Reilly, J.

Attorneys: For Appellant: Pinix, Matthew S., Milwaukee; For Respondent: Kassel, Jeffrey J., Madison; Chiapete, W. Richard, Racine

OWI

Wisconsin Court of Appeals

Motor Vehicles
OWI — reasonable suspicion — implied consent

Steven Seward appeals the judgment finding him guilty of operating while intoxicated (OWI) and operating with a prohibited alcohol concentration (PAC) in violation of Wis. Stat. § 346.63(1)(a) and 346.63(1)(b). Seward argues that the circuit court erred in: (1) finding that the officer had reasonable suspicion to conduct a traffic stop; and (2) finding that the officer complied with the implied consent law, and affording the City the evidentiary benefits of automatic admissibility and the statutory presumption of intoxication. I conclude that the circuit court did not err in finding that the officer had reasonable suspicion to conduct a traffic stop and in finding that the officer complied with the implied consent law. Accordingly, I affirm the judgment. This opinion will not be published.

2014AP735 City of Tomah v. Seward

Dist IV, Monroe County, Rice, J., Kloppenburg, J.

Attorneys: For Appellant: Holevoet, John, Madison; For Respondent: Precour-Berry, Penny Jean, Tomah

Wisconsin Court of Appeals

Motor Vehicles
OWI — reasonable suspicion — field sobriety tests

Julie Bilquist appeals a judgment of conviction for operating a motor vehicle while intoxicated second offense, and for operating after revocation. Bilquist contends the circuit court erred by denying her motion to suppress evidence because the officer who stopped her lacked reasonable suspicion to extend her detention for administering field sobriety tests. We disagree and affirm. This opinion will not be published.

2014AP426-CR State v. Bilquist

Dist III, Brown County, Kelley, J., Hoover, P.J.

Attorneys: For Appellant: Murray, Matthew, Sheboygan; For Respondent: Weber, Gregory M., Madison; Enli, Eric R., Green Bay; Lasee, David L., Green Bay

SENTENCING

Wisconsin Court of Appeals

Sentencing
undue harshness — presumptive minimum sentences

Manuel Villarreal Frausto appeals a judgment of conviction for use of a computer to facilitate a child sex crime and an order denying postconviction relief. Villarreal contends that: (1) the sentencing court erred by considering a fact that satisfied an element of the offense as an aggravating factor; (2) the court erred by imposing the presumptive minimum sentence without adequate explanation; and (3) his sentence was unduly harsh in light of newly discovered evidence as to sentences received by other defendants who were convicted based on similar conduct. We reject these contentions, and affirm. This opinion will not be published.

2013AP2498-CR State v. Frausto

Dist IV, Jefferson County, Wambach, J., Per Curiam

Attorneys: For Appellant: Coad, Richard A., Madison; For Respondent: Wellman, Sally L., Madison; Hall, Monica J., Jefferson

Wisconsin Court of Appeals

Sentencing
sentence credit

Xavier Demetrius Harrell appeals from two judgments of conviction and from a trial court order denying his postconviction motion. He argues that the trial court erroneously denied his motion for additional sentence credit and he asks this court to enter an order granting him an additional seventy-seven days of sentence credit. We reject his arguments and affirm the judgments and order. This opinion will not be published.

2014AP198-CR, 2014AP199-CR State v. Harrell

Dist I, Milwaukee County, Flynn, J., Per Curiam

Attorneys: For Appellant: Zellner, Kiley, Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Winter, Tiffany M., Madison