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Weekly Case Digests — Sept. 14 – Sept. 18, 2015

By: WISCONSIN LAW JOURNAL STAFF//September 18, 2015//

Weekly Case Digests — Sept. 14 – Sept. 18, 2015

By: WISCONSIN LAW JOURNAL STAFF//September 18, 2015//

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7th Circuit Court of Appeals

Civil

7th Circuit Court of Appeals

Officials: WILLIAMS, TINDER, and HAMILTON, Circuit Judges

Admission of Evidence – Harmless Error

14-1380

Mark D. Jensen v. Marc Clements

Circuit court error of admitting letter implicating appellant of murder weeks before murder occurred prejudiced appellant.

“We recognize that “an unreasonable application of federal law is different from an incorrect application of federal law.” Harrington v. Richter, 562 U.S. 86 (2011). But the state appellate court’s ruling was not simply incorrect. The state trial judge recognized this when he called the letter’s admittance “grave constitutional error” when he foresaw the Giles ruling. That the jury improperly heard Julie’s voice from the grave in the way it did means there is no doubt that Jensen’s rights under the federal Confrontation Clause were violated. Any reasonable jurist using the proper standard would have to find “grave doubt” about whether that violation is harmless. The error in admission had a substantial and injurious effect or influence in determining the jury’s verdict; it was one “well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103. Because Jensen satisfies the Brecht standard, he necessarily satisfies the AEDPA standard of an unreasonable application of the Chapman harmless error standard. See Ayala, 135 S. Ct. at 138; Fry, 551 U.S. at 120.”

Affirmed

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Civil

7th Circuit Court of Appeals

Officials:  RIPPLE and HAMILTON, Circuit Judges, & STADTMUELLER, District Judge

Excessive Force

12-3639

Michael B. Kinglsey v. Stan Hendrickson

Officer aggressive actions applied on appellant held as excessive in light of appellants conduct.

“Here, the facts surrounding the underlying incident are in sharp dispute. When those facts are construed in the light most favorable to Mr. Kingsley, see Saucier v. Katz, 533 U.S. 194, 201 (2001), a reasonable officer was certainly on notice at the time of the occurrence that Mr. Kingsley’s conduct did not justify the sort of force described in his account. According to Mr. Kingsley, he was not resisting the officers in a manner that justified slamming his head into the wall, using a Taser while he was manacled, and leaving him alone after use of that instrument. Our precedent makes clear that when the officers applied the Taser to Mr. Kingsley in May 2010, use of the Taser violated Mr. Kingsley’s right to be free from excessive force if he was not resisting. See Lewis v. Downey, 581 F.3d 467, 478–79 (7th Cir. 2009) (denying qualified immunity to officers who applied a Taser to a pretrial detainee lying “prone on [a] bed, weakened, and docile,” in response to his refusal of an order to get out of bed); Brooks v. City of Aurora, Ill., 653 F.3d 478, 487 (7th Cir. 2011) (noting that prior cases had established the illegality of the use of pepper spray on an arrestee who was “already … handcuffed and … offering no physical resistance” or was “lying face down … with both arms handcuffed behind his back” (internal quotation marks omitted)); see also Sallenger v. Oakes, 473 F.3d 731, 741–42 (7th Cir. 2007) (noting, in its evaluation of the officers’ conduct for immunity purposes, that the fact that the force was applied after the arrestee was handcuffed was a significant factor in denying immunity); cf. Forrest v. Prine, 620 F.3d 739, 745 (7th Cir. 2010) (finding force was not unconstitutionally excessive when Taser was applied “where the officers were faced with aggression, disruption, [and] physical threat” and where plaintiff “posed an immediate threat to safety and order within the jail” (alteration in original) (internal quotation marks omitted)).”

Reversed and Remanded

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Civil

7th Circuit Court of Appeals

Officials: WOOD, Chief Judge, and POSNER and WILLIAMS, Circuit Judges

First Amendment – Equal Protection Clause

14-3365

Theresa Bisluk v. Brian Hamer

Appellant did not obtain position due to failure to submit proper paperwork, not discrimination.

“Bisluk’s failure to apply for the position or submit a for‐ mal transfer request is fatal to her claim under the indirect method of proof as well. Nonetheless, we will analyze the elements of the indirect method for the sake of completeness. Bisluk is a woman, and there is evidence that she was meeting her employer’s expectations, but there is insufficient evidence supporting the remaining elements of her claim. First, she did not suffer an adverse employment action. See Herrnreiter v. Chicago Hous. Auth., 315 F.3d 742, 744–45 (7th Cir. 2002) (finding a transfer without a reduction in pay or other benefits based on an employee’s purely subjective preference for one position over another is not an adverse employment action); see also Steinhauer v. DeGolier, 359 F.3d 481, 483 (7th Cir. 2004) (noting the same analysis governs claims of sex discrimination under Title VII and § 1983). To the extent that her failure to be transferred to a position in southern Illinois is contrary to her desires, it is not the type of employer act that is subject to liability under § 1983. See Herrnreiter, 315 F.3d at 744–45. “

Affirmed

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Civil

7th Circuit Court of Appeals

Officials: KANNE and ROVNER, Circuit Judges, and SPRINGMANN, District Judge

Constitutionality

14-3300

Common Cause Indiana v. Individual Members of Indiana Election Committee

State statute governing system for election judges held unconstitutional.

“According to the State, these cases establish that election laws intended to ensure balanced political representation are fully consonant with the First and Fourteenth Amendments.12 However, the State’s rationale does not address a crucial difference from the facts presented—those cases speak to an interest in protecting minority party representation in the context of multi-member or legislative bodies. See, e.g., Hechinger, 411 F. Supp. at 654 (noting that “the purpose of the [minority representation provision] was entirely harmonious with that of the First Amendment” because it provided “fair and equitable protection of minority interests” by “ensur[ing] that political minorities are represented on the Council and that dissident voices are heard in the legislative process”). Minority representation provisions, or, stated differently, limitations on majority representation, protect against partisanship run amok. A judge, however, is not elected to represent a particular viewpoint but must exercise his or her own independent authority to make decisions that uphold and apply the law fairly and impartially. See, e.g., Republican Party of Minnesota v. White, 536 U.S. 765, 803 (2002) (Ginsburg, J., dissenting) (“Whether state or federal, elected or appointed, judges perform a function fundamentally different from that of the people’s elected representatives. Legislative and executive officials act on behalf of the voters who placed them in office; ‘judge[s] represen[t] the Law.’” (citations omitted)).”

Affirmed

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Civil

7th Circuit Court of Appeals

Officials: FLAUM, KANNE, and SYKES, Circuit Judges

Receivership – Stay of Proceedings

No. 13-3837

Kevin Duff v. Central Sleep Diagnostics

Attorney’s attempt to circumvent receiver by obtaining judgment and submitting a claim after court imposed a stay on all legal proceedings warrants sanctions.

“As we’ve explained, much of Goodman’s briefing is based on his obvious misunderstanding of the Full Faith and Credit Act. We’re particularly troubled, however, by Goodman’s inexplicable insistence that he owed no duty to keep the district judge or the receiver informed of his activities in state court. We emphasize again that the judge granted only limited relief from the stay for Goodman to obtain a judgment and garnish wages, and this limited relief was explicitly conditioned on the receiver’s right to object. As an officer of the court, Goodman surely understood his obligation to respect this order. Instead he ignored it, and he advances an argument that would have us treat its limitations as meaningless.”

Affirmed & Sanctions Ordered

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7th Circuit Court of Appeals – Criminal

Criminal

7th Circuit Court of Appeals

Officials: BAUER, EASTERBROOK, and RIPPLE, Circuit Judges

Sufficiency of Evidence – Jury Instruction

No.14-3515

United States of America v. Eugene Clarke

Patently false tax returns sufficient to demonstrate knowledge of false checks tendered to IRS.

“We have held before that “patently false and utterly groundless” tax return forms were sufficient to demonstrate the defendant’s knowledge of the falsity of her claims in violation of 18 U.S.C. § 287. Ferguson, 793 F.2d at 831. In Ferguson, the defendant filed several forms to the IRS seeking tax refunds for taxes she paid, as well as taxes withheld by her employer. 793 F.2d at 831. We concluded that the “forms on their face demonstrate [the defendant’s] knowledge of the falsity of her claims,” where the name on one form reflected her efforts to gain a refund through her baseless interpretation of tax laws and where some of the forms reflected a refund for a tax that the defendant was never required to pay. Id. Clarke’s claims are similarly groundless. Because the information on Clarke’s tax returns was “patently false and utterly groundless, id., Clarke’s forms provide sufficient evidence for a jury to conclude Clarke knew the falsity of his claims”

Affirmed

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Criminal

7th Circuit Court of Appeals

Officials: MANION, WILLIAMS, and HAMILTON, Circuit Judges.

Motion to Suppress – Search Warrant

14-3262

United States of America v. Sidney Thompson

Even where probable cause lacking, good-faith exception allows admission of evidence obtained from search warrant

“All that said, we need not decide whether the state judge who issued the warrant had a basis for finding probable cause, since the search of Thompson’s residence survives a motion to suppress under the good-faith exception of Leon, 468 U.S. at 919–23. Officer Lane’s decision to obtain a warrant is prima facie evidence that he was acting in good faith. See Searcy, 664 F.3d at 1124. Thompson challenges that presumption by arguing that a police officer could not reasonably rely on a search warrant which, he insists, rests on less detail than the affidavit in Garcia, a case in which we saw reason to ”hesitate” before finally deciding that a “sensible judge” could have found that the challenged affidavit included enough information to establish probable cause. 528 F.3d at 486. It is true that the affidavit in this case lacks many of the same details missing from the affidavit in Garcia, but we reject Thompson’s suggestion that Officer Lane’s affidavit is materially inferior. As we’ve noted, Officer Lane corroborated some of the information supplied by the informant in this case, unlike the police officer in Garcia who corroborated none of the informant’s information. Id. at 483; see also United States v. Harju, 466 F.3d 602, 609 (7th Cir. 2006) (explaining that police officer’s effort to corroborate informant’s information was reason to apply good-faith exception despite affidavit’s lack of detail).”

Affirmed. Per Curiam.

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WI Court of Appeals – Civil

Civil

WI Court of Appeals – District II

Officials: Neubauer, C.J., Reilly, P.J., and Gundrum, J.

Family – Divorce

2014AP2243

Erika M. Weber v. Gaving M. Walwork

Gavin M. Walwork appeals the property-division portion of the judgment granting him and Erika M. Weber, f/k/a Erika M. Walwork, a divorce. The issues are whether the trial court improperly allocated an income tax liability, impermissibly double counted an asset, and failed to make an order regarding the 2014 income taxes. We affirm.

Decision

Affirmed. Per Curiam.

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Civil

WI Court of Appeals – District II

Officials: Neubauer, C.J., Reilly, P.J., and Gundrum, J.

Insurance – Indemnification

2014AP2484

Water Well Solutions Service Group Inc. v. Consolidated Insurance Company

This is an insurance coverage dispute arising out of the allegedly negligent installation of a water pump in a municipal well. In the underlying complaint, the subrogated insurer of the municipal utility sued the water well contractor, alleging negligent work. The water well contractor tendered its defense and indemnity to its commercial general liability insurer, which denied any duty to defend or indemnify. That case settled. The water well contractor then brought this action against its insurer, alleging breach of the duty to defend and bad faith. The circuit court granted summary judgment to the insurer, finding that the underlying complaint did not allege a covered claim because certain business risk exclusions applied. The water well contractor urges us to look outside the four corners of the complaint to find coverage. We decline this invitation to depart from the well-established Wisconsin rule that the allegations in the complaint are what we look at to determine whether there is a duty to defend. The water well contractor also argues that we should ignore the exclusions in the policy when determining the duty to defend. This would also be a departure from established Wisconsin law. We affirm the circuit court’s grant of summary judgment to the insurer.

Decision

Affirmed

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Civil

WI Court of Appeals – District II

Officials: Neubauer, C.J., Reilly, P.J., and Gundrum, J.

Reasonableness – Error

2015AP86

Marla Joy Baker-Weiss v. Robert George Weiss

Robert Weiss appeals a postdivorce judgment ordering him to pay $90,255.95 in attorney fees and costs as an overtrial sanction. He challenges the sanction’s propriety and reasonableness. Marla Baker-Weiss, Robert’s former wife, asserts that his appeal is frivolous and moves for appellate costs and attorney fees. We affirm the judgment and deny Marla’s motion.

Decision

Affirmed.

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Civil

WI Court of Appeals – District II

Officials: NEAUBAUER, C.J.

Ch. 51 Commitment

2015AP1080-FT

Ouzakee County v. C.Y.K.

C.Y.K. appeals from an order for involuntary medication and treatment. She argues that there was insufficient evidence to prove by clear and convincing evidence that she is substantially incapable of applying an understanding of the advantages and disadvantages of and alternatives to treatment to her mental illness in order to make an informed choice whether to accept or refuse medication or treatment. See WIS. STAT. § 51.61(1)(g)4.b. C.Y.K. argues that the court’s finding was clearly erroneous because the courtappointed psychiatrist wrote in his report and testified at the hearing that she was not substantially incapable of applying her understanding to make an informed choice. When the psychiatrist’s report and testimony are viewed in their entirety and along with testimony from C.Y.K.’s case worker, the psychiatrist’s statement does not negate the rest of the picture supporting the circuit court’s determination that C.Y.K. is substantially incapable of applying an understanding of the advantages and disadvantages of and alternatives to treatment to her mental illness in order to make an informed choice whether to accept or refuse medication or treatment. There was sufficient evidence for the court to enter its order for involuntary medication and treatment. We affirm.

Decision

Affirmed

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WI Court of Appeals – Criminal

Criminal

WI Court of Appeals – District I

Officials: Curley, P.J., Kessler and Brennan, JJ.

Pleas & Sentencing – Sentence Modification

2014AP519

State of Wisconsin v. Cory Gilmore

Cory Gilmore, proceeding pro se, appeals an order that denied both his motion for postconviction relief under WIS. STAT. § 974.06 (2013-14), and his common-law motion for sentence modification. Because Gilmore’s motion under § 974.06 is procedurally barred and because he fails to demonstrate the existence of a new factor, we affirm.

Decision

Affirmed. Per Curiam.

Full Text

Criminal

WI Court of Appeals – District I

Officials: Curley, P.J., Kessler and Brennan, JJ.

Pleas & Sentencing

2014AP1058-CR

State of Wisconsin v. David Dalawrence Byrd

David Dalawrence Byrd appeals a judgment entered after a jury found him guilty of first-degree intentional homicide as a party to a crime and possessing a firearm as a felon. He also appeals the postconviction order denying his motion for resentencing or, alternatively, sentence modification. He claims that the circuit court: (1) improperly allowed testimony from a witness who violated a sequestration order; (2) sentenced him under an unconstitutional statute; (3) failed to give him required information at the time of sentencing; and (4) erroneously exercised sentencing discretion. We reject his arguments and affirm.

Decision

Affirmed. Per Curiam

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Criminal

WI Court of Appeals – District II

Officials: Neubauer, C.J., Reilly, P.J., and Gundrum, J.

Search & Seizure – Motion to Suppress

2014AP2387-CR

State of Wisconsin v. Ryan H. Tentoni

Ryan Tentoni asserts a privacy interest in text messages sent by him and discovered through a warrantless search of Wayne Wilson’s phone. Tentoni seeks suppression of the text messages and other subsequently obtained phone records as fruit of the government’s illegal search of his text messages stored in Wilson’s phone. Tentoni does not have an objectively reasonable expectation of privacy as he relinquished any claim to privacy in the text messages delivered to Wilson’s phone. We affirm.

Decision

Affirmed. Recommended for Publication.

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Criminal

WI Court of Appeals – District II

Officials: REILLY, P.J.

Traffic Stop – Motion to Suppress

2015AP701-CR

State of Wisconsin v. Manuel Talavera

Manuel Talavera appeals an order denying his motion to suppress evidence. He argues that when relying on a violation of WIS. STAT. § 346.34(1)(b) to justify a warrantless traffic stop, the State must present evidence that a defendant’s failure to signal prior to turning his vehicle actually affected other traffic. We affirm as the plain language of the statute requires motorists to signal impending turns whenever “other traffic may be affected by the movement.” Evidence that Talavera failed to signal prior to turning when there was a vehicle following him at a distance of two car lengths was sufficient to provide reasonable suspicion of a § 346.34(1)(b) violation.

Decision

Affirmed.

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