Weekly Case Digests — March 2-6, 2015

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CIVIL

Wisconsin Court of Appeals
Administrative Law – judicial review – service

APPEAL from an order of the circuit court for St. Croix County:  ERIC J. LUNDELL, Judge.  Reversed and cause remanded with directions.

DISTRICT III; St. Croix; ERIC J. LUNDELL, Hoover, P.J., Stark, Hruz, JJ.

2014AP000576 Randi L. Erickson v. Wisconsin Psychology Examining Board

U.S. Court of Appeals For the Seventh Circuit
Civil Procedure – Anti-Injunction Act

A district court may not enjoin class members from pursuing litigation in state courts.

“No one doubts that the district court has subject-matter jurisdiction over this litigation, and no one contends that trial or judgment in the Missouri litigation could imperil the district court’s ability and authority to adjudicate the federal suit. If the settlement collapses, the court’s adjudicatory competence remains. A need to adjudicate a suit on the merits after settlement negotiations fail does not undermine the nature or extent of a court’s jurisdiction. Yet if the Missouri case cannot diminish federal jurisdiction, §2283 precludes an injunction until the federal case reaches a final decision. (After a final decision, an injunction could be appropriate to protect the federal judgment, although class members who opt out would remain entitled to pursue their own suits.) Parallel state and federal litigation is common. The first to reach final decision can affect the other, either through rules of claim and issue preclusion (res judicata and collateral estoppel) or through effects such as reducing the scope of a class from 50 to 49 states. Yet the potential effect of one suit on the other does not justify an injunction.”

Reversed.

14-3436 Adkins v. Nestle Purina Petcare Co.

Appeal from the United States District Court for the Northern District of Illinois, Gettleman, J., Easterbrook, J.

U.S. Supreme Court
Civil Procedure – Tax Injunction Act

A retail association can sue to block a state from collecting sales taxes from customers who purchase from noncollecting retailers.

Petitioner’s suit cannot be understood to “restrain” the “assessment, levy or collection” of Colorado’s sales and use taxes merely because it may inhibit those activities. While the word “restrain” can be defined as broadly as the Tenth Circuit defined it, it also has a narrower meaning used in equity, which captures only those orders that stop acts of assessment, levy, or collection. The context in which the TIA uses the word “restrain” resolves this ambiguity in favor of this narrower meaning. First, the verbs accompanying “restrain”—“enjoin” and “suspend”—are terms of art in equity and refer to different equitable remedies that restrict or stop official action, strongly suggesting that “restrain” does the same. Additionally, “restrain” acts on “assessment,” “levy,” and “collection,” a carefully selected list of technical terms. The Tenth Circuit’s broad meaning would defeat the precision of that list and render many of those terms surplusage. Assigning “restrain” its meaning in equity is also consistent with this Court’s recognition that the TIA “has its roots in equity practice,” Tully v. Griffin, Inc., 429 U. S. 68, 73, and with the principle that “[j]urisdictional rules should be clear,” Grable & Sons Metal Products, Inc. v. Darue Engineering & Mfg., 545 U. S. 308, 321 (THOMAS, J., concurring). Pp. 10–12.

735 F. 3d 904, reversed and remanded.

13-1032 Direct Marketing Ass’n. v. Brohl

Thomas, J.; Kennedy, J., concurring; Ginsburg, J., concurring.

U.S. Court of Appeals For the Seventh Circuit
Civil Procedure; Rooker-Feldman doctrine

A previous state court foreclosure action does not preclude a federal RICO action based on activity the plaintiff alleges predates the state court action.

“Iqbal alleges that the defendants conducted a racketeering enterprise that predates the state court’s judgments. He cannot have those judgments annulled but can contend that he was injured, out of court, by being ‘set up’ by Patel and Johnson so that they could take over his business and reap the profits he anticipated. The district court believed that any pre-litigation fraud is ‘intertwined’ with the state court judgments and therefore forecloses federal litigation, but Exxon Mobil shows that the Rooker-Feldman doctrine asks what injury the plaintiff asks the federal court to redress, not whether the injury is ‘intertwined’ with something else. See 544 U.S. at 291; see also Richardson v. Koch Law Firm, P.C., 768 F.3d 732, 734 (7th Cir. 2014) (deprecating any inquiry into what is intertwined with what).”

“Because Iqbal seeks damages for activity that (he alleges) predates the state litigation and caused injury independently of it, the Rooker-Feldman doctrine does not block this suit. It must be reinstated.”

Reversed and Remanded.

14-1959 Iqbal v. Patel

Appeal from the United States District Court for the Northern District of Indiana, Moody, J., Easterbrook, J.

Wisconsin Court of Appeals
Civil Procedure – summary judgment

2014AP002554   Anesthesia Services of Fox Valley v. Elizabeth A. Fisher

APPEAL from a judgment and an order of the circuit court for Winnebago County:  THOMAS J. GRITTON, Judge.  Affirmed.

DISTRICT II; Winnebago; THOMAS J. GRITTON, GUNDRUM, J.

Wisconsin Court of Appeals
Family – contempt – hearsay – due process

APPEAL from orders of the circuit court for Dodge County:  STEVEN G. BAUER, Judge.  Affirmed.

DISTRICT IV; Dodge; STEVEN G. BAUER, Higginbotham, Sherman, Kloppenburg, JJ.

2013AP002748 Antwuan D. Lofton v. Karmen L. Lofton

Wisconsin Court of Appeals
Family – maintenance – modification

APPEAL from an order of the circuit court for Racine County:  EUGENE A. GASIORKIEWICZ, Judge.  Affirmed in part; reversed in part and cause remanded.

DISTRICT II; Racine; EUGENE A. GASIORKIEWICZ, Neubauer, P.J., Reilly, Gundrum, JJ.

2014AP001530   Ed Cruz v. Mary H. Cruz

Wisconsin Court of Appeals
Insurance – Pollution exclusions

An insured need not disperse a pollutant for a pollution exclusion to bar coverage.

“Under the plain language of the policy there is no requirement that the insured disperse the pollutant for the exclusion to apply.  As we see from the policy language above, no actor is specified, leaving the possibility that a pollutant could be dispersed in any number of ways—including without the direct action of any party at all.  Additionally, the phrase “at any time” leaves open a scenario under which a pollutant might be, either intentionally or unintentionally, dispersed without any action by the insured.  We thus conclude that the policy does not require that the insured disperse the pollutant in order for the exclusion to apply.  Therefore, the fact that Advanced Waste dispersed the pollutant does not prevent us from applying the total pollution exclusion here.”

Affirmed.

Recommended for publication in the official reports.

2014AP1169 Advanced Waste Services, Inc., v. United Milwaukee Scrap, LLC

Dist. I, Milwaukee County, Noonan, J., Curley, J.

Wisconsin Court of Appeals
Insurance – reducing clauses

The “Truth in Auto Law” does not apply to a policy issued prior to November 1, 2009, even if the policy contains an elasticity clause.

“The fact of the matter is that the legislature chose not to make policies such as Wolf’s conflict with Wisconsin law.  As to policies entered into before November 1, 2009, the law that was in effect prior to that date remained in effect. The legislature could have written the Act in a way that would have made Wolf’s policy conflict with Wisconsin law, thereby using the elasticity clause to incorporate the changes into the policy.  But it did not do so.  A case in point is Hanson v. Prudential Property & Casualty Insurance Co., 224 Wis. 2d 356, 591 N.W.2d 619 (Ct. App. 1999).  There, this court confronted a similar argument arising out of a legislative change in statute that resuscitated anti-stacking provisions in car insurance policies.  Id. at 369.  The statutory amendment at issue inHanson explicitly stated that for motor vehicle insurance policies issued before the act’s effective date, the antistacking provision is ‘first enforceable with respect to claims arising out of motor vehicle accidents occurring on the effective date of this subsection.’ 1995 Wis. Act 21, § 5(2) (emphasis added).  Therefore, in Hanson, the emergence of a claim drove the Act’s effective date, while in this case, the issuance or renewal of a policy determines the effective date.  Wolf tries to use Hanson to support her argument, but clearly, the words of the legislature show the difference between her case and Hanson.”

Affirmed.

Recommended for publication in the official reports.

2014AP1522-FT Wolf v. American Family Mut. Ins. Co.

Dist. II, Washington County, Muehlbauer, J., Brown, J.

Wisconsin Court of Appeals
Municipalities – housing code violations

APPEAL from an order of the circuit court for Dane County:  WILLIAM E. HANRAHAN, Judge.  Affirmed.

DISTRICT IV; Dane; WILLIAM E. HANRAHAN, LUNDSTEN, J.

2014AP001306 City of Madison v. Ray A. Peterson

U.S. Court of Appeals  For the Seventh Circuit
Tax; Notice

Where the taxpayer filed no tax returns for years, and the IRS mailed notice of tax deficiencies to the address of most recent tax return, he received proper notice.

“[E]ven assuming arguendo that the IRS had a duty to conduct further investigation for Gyorgy’s address, he does not identify what reasonable steps it could have taken to find him. There is no evidence that the IRS had record—let alone clear and concise notification—of an address where he could have been reached in 2006 and 2007. It had already tried, to no avail, to verify the Jean Street address on his 2003 W-2. It appears, in fact, that Gyorgy did not want to be found. From 2001 through 2008, he filed no tax returns, moved seven times, never remained in the same place for more than roughly eighteen months, and often moved on after only a few months. Yet he never notified the IRS of his new addresses. The IRS cannot be expected to keep track of an itinerant taxpayer in such circumstances. See Marks, 947 F.2d at 986 (‘[A] taxpayer’s effort “to obscure the change in his address so as to confound the IRS” is a factor relevant in assessing whether the Commissioner acted properly.’ (citation omitted)).”

Affirmed.

13-3363 Gyorgy v. CIR

Appeal from the United States Tax Court, Kanne, J.

Wisconsin Court of Appeals
Tax – property taxes – issue preclusion – benevolent associations

APPEAL from a judgment of the circuit court for Dane County:  PETER ANDERSON, Judge.  Affirmed.

DISTRICT IV; Dane; PETER ANDERSON, Lundsten, Higginbotham, Kloppenburg, JJ.

2012AP002095 Attic Angel Prairie Point, Inc. v. City of Madison

Wisconsin Court of Appeals
Torts – duty – public policy

APPEAL from an order of the circuit court for Kenosha County:  BRUCE E. SCHROEDER, Judge.  Reversed and cause remanded with directions.

DISTRICT II; Kenosha; BRUCE E. SCHROEDER, Brown, C.J., Neubauer, P.J., Gundrum, J.

2014AP001064   Jason R. Gum v. Kenosha Achievement Center, Inc.

Wisconsin Court of Appeals
Torts – legal malpractice

APPEAL from an order of the circuit court for Dane County:  MARYANN SUMI, Judge.  Reversed and cause remanded.

DISTRICT IV; Dane; MARYANN SUMI, Blanchard, P.J., Sherman Kloppenburg, JJ.

2014AP000575 David MacLeish v. Boardman & Clark LLP

Wisconsin Court of Appeals
Torts – Governmental immunity

Where city firefighters did not tell residents t leave their homes during a gas leak, and a home exploded, the city is not entitled to governmental immunity.

“It is undisputed that the two 911 callers reported smelling gas in their homes and that one caller reported seeing an obvious gas line leak in the street.  The obvious leak in the street was confirmed by City employees promptly upon their arrival.  The trial court here observed, ‘[t]here is no doubt that the gas leak here was extremely dangerous, more than unsafe.’ We conclude, based on these undisputed facts, that this was a known and compelling danger which imposed a ministerial duty on the City to act.  Whether the City was negligent in the manner in which it performed its ministerial duty is a question for the jury.”

Reversed and Remanded.

Recommended for publication in the official reports.

2014AP130 Oden v. City of Milwaukee

Dist. I, Milwaukee County, Guolee, J., Kessler, J.

U.S. Supreme Court
Transportation – Railroads

The Eleventh Circuit erred in refusing to consider whether a state could justify its decision to exempt motor carriers from its sales and use taxes through its decision to subject motor carriers to a fuel-excise tax.

It does not accord with ordinary English usage to say that a tax discriminates against a rail carrier if a rival who is exempt from that tax must pay another comparable tax from which the rail carrier is exempt, since both competitors could then claim to be discriminated against relative to each other. The Court’s negative Commerce Clause cases endorse the proposition that an additional tax on third parties may justify an otherwise discriminatory tax. Gregg Dyeing Co. v. Query, 286 U. S. 472, 479–480. Similarly, an alternative, roughly equivalent tax is one possible justification that renders a tax disparity non-discriminatory. CSX’s counterarguments are rejected. On remand, the Eleventh Circuit is to consider whether Alabama’s fuel-excise tax is the rough equivalent of Alabama’s sales tax as applied to diesel fuel, and therefore justifies the motor carrier sales-tax exemption. Although the State cannot offer a similar defense with respect to its water carrier exemption, the court should also examine whether any of the State’s alternative rationales justify that exemption.

720 F. 3d 863, reversed and remanded.

13-533 Alabama Department of Revenue v. CSX Transportation, Inc.

Scalia, J.; Thomas, J., dissenting.

CRIMINAL

Wisconsin Court of Appeals
Criminal Procedure – alibi defense – ineffective assistance

APPEAL from a judgment and orders of the circuit court for Clark County:  JON M. COUNSELL, Judge.  Affirmed.

DISTRICT IV; Clark; JON M. COUNSELL, Blanchard, P.J., Lundsten, Higginbotham, JJ.

2014AP000929-CR           State v. Derek J. Copeland

Wisconsin Court of Appeals
Criminal Procedure – ineffective assistance

APPEAL from a judgment and an order of the circuit court for Ozaukee County:  PAUL V. MALLOY, Judge.  Affirmed.

DISTRICT II; Ozaukee; PAUL V. MALLOY, Neubauer, P.J., Reilly, Gundrum, JJ.

2014AP000606-CR           State v. Patrick G. Lynch

Wisconsin Court of Appeals
Criminal Procedure – plea withdrawal

APPEAL from a judgment and an order of the circuit court for Dane County:  WILLIAM E. HANRAHAN, Judge.  Order reversed and cause remanded for further proceedings.

DISTRICT IV; Dane; WILLIAM E. HANRAHAN, Lundsten, Higginbotham, Kloppenburg, JJ.

2014AP001270-CR           State v. Daniel R. Fierro

Wisconsin Supreme Court
Criminal Procedure – Right to testify forfeiture

The defendant forfeited his right to testify by exhibiting stubborn and defiant conduct that threatened both the fairness and reliability of the criminal trial process as well as the preservation of dignity, order, and decorum in the courtroom.

“The United States Supreme Court has stated countless times that adherence to rules of evidence and procedure is essential to the proper functioning of our criminal trial process.  See, e.g., Chambers, 410 U.S. at 302; Rock, 483 U.S. at 55 n.11; Taylor, 484 U.S. at 410-411.  That numerous rules controlling the presentation of evidence ‘do not offend the defendant’s right to testify’ is a sure indication that a circuit court’s interest in effectuating the ascertainment of truth is tantamount to the constitutional right to testify. By repeatedly refusing to comply with the circuit court’s instruction not to discuss irrelevant matters before the jury, Anthony gave the circuit court little choice but to completely deny his right to testify for fear of compromising the primary purpose of the criminal trial process.”

Affirmed.

2013AP467-CR State v. Anthony

Crooks, J.

U.S. Court of Appeals For the Seventh Circuit
Criminal Procedure – Double jeopardy

The defendant failed to show that a prior plea agreement resolving money laundering charges barred the current mortgage fraud charges.

“Brown’s affidavit thus posits the existence of a contractual provision beyond those incorporated into the written terms of the plea agreement. Yet the agreement itself states that it represents the entirety of the parties’ agreement, and not only the government, but Brown himself, assured Judge Gottschall at the change-of-plea hearing that no other promises had been made to Brown in order to induce him to plead guilty. Brown’s affidavit is thus in direct contradiction to what he represented to the court, and what Judge Gottschall relied upon, in evaluating and accepting his guilty plea. Avoiding after-the-fact accusations that an undocumented agreement has been breached is exactly why judges ask the parties to confirm that there are no agreements beyond those committed to writing or otherwise recited in open court. Treating Brown’s affidavit as sufficient to commence an inquiry would undermine the interests in candor and finality served by the court’s inquiry into undisclosed promises.”

Affirmed.

12-3290 U.S. v. Brown

Appeal from the United States District Court for the Northern District of Illinois, Lefkow, J., Rovner, J.

Wisconsin Court of Appeals
Criminal Procedure – Confrontation Clause

APPEAL from a judgment and an order of the circuit court for Winnebago County:  THOMAS J. GRITTON, Judge.  Reversed and cause remanded.

DISTRICT II; Winnebago; THOMAS J. GRITTON, Hoover, P.J., Stark, Hruz, JJ.

2014AP000481-CR State v. Jason S. VanDyke

Wisconsin Court of Appeals
Criminal Procedure – ineffective assistance

APPEAL from a judgment of the circuit court for Milwaukee County:  MEL FLANAGAN, Judge.  Affirmed.

DISTRICT I; Milwaukee; MEL FLANAGAN, Kessler and Brennan, JJ., Thomas Cane

2013AP001430-CR State v. Dupree M. Rogers

Wisconsin Court of Appeals
Motor Vehicles – OWI; probable cause

APPEAL from an order of the circuit court for Winnebago County:  THOMAS J. GRITTON, Judge.  Affirmed.

DISTRICT II; Winnebago; THOMAS J. GRITTON, GUNDRUM, J.

2014AP002459-CR           County of Winnebago v. Pavel Ford