Weekly Case Digests — Dec. 14-18, 2015

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Supreme Court of the United States

Supreme Court of the United States

Case Name: Shapiro v. McManus

Case No: 14-990

Practice Area: Constitutionality

28 U.S.C. §2284(a) is very clear in its mandate that a petitioner challenging the constitutionality of the apportionment of congressional districts are allowed to present their case before a three-judge panel.

“Section 2284(a)’s prescription could not be clearer. Because the present suit is indisputably “an action . . . challenging the constitutionality of the apportionment of congressional districts,” the District Judge was required to refer the case to a three-judge court. Section 2284(a) admits of no exception, and “the mandatory ‘shall’ . . . normally creates an obligation impervious to judicial discretion.” Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U. S. 26, 35. The subsequent provision of §2284(b)(1), that the district judge shall commence the process for appointment of a three-judge panel “unless he determines that three judges are not required,” should be read not as a grant of discretion to the district judge to ignore §2284(a), but as a compatible administrative detail requiring district judges to “determin[e]” only whether the “request for three judges” is made in a case covered by §2284(a). This conclusion is bolstered by §2284(b)(3)’s explicit command that “[a] single judge shall not . . . enter judgment on the merits.” Pp. 3–5.

7^th Circuit Court of Appeals

Case Name: Michael Hughes v. Michael Farris

Case No: 15-1801

Officials: WOOD, Chief Judge, and POSNER and EASTERBROOK, Circuit Judges.

Practice Area: Fourteenth Amendment – Abuse

Dismissal of inmate claim for abuse violations under 14^th amendment at treatment facility for sexually violent persons was in error.

“We conclude with three final comments. First, we emphasize again that at this stage we have only allegations; further proceedings are needed to determine their truth. Second, we recently specified that merit‐review hearings must be transcribed or recorded, Henderson, 802 F.3d at 932–33, and so we commend the district court for doing so here. These hearings, nonetheless, may be conducted only for the narrow purpose of enabling a pro se plaintiff to clarify and amplify his complaint if it is confusing; the district judge may not use the hearings to cross‐examine a plaintiff or elicit admissions. Id. at 933. Third, because the district court’s dismissal was in error, the record must be corrected to show that Hughes did not incur a strike under the Prison Litigation Reform Act, 28 U.S.C. § 1915(g). We have previously noted in dicta that it is possible that the three‐strikes provision does not apply to persons in Hughes’s position (sexually violent detainees no longer serving a criminal sentence) because they are not prisoners as defined in § 1915(h). Kalinowski v. Bond, 358 F.3d 978, 979 (7th Cir. 2004) (collecting cases where other circuits have held similarly); see also Merryfield v. Jordan, 584 F.3d 923, 927 (10th Cir. 2009); Michau v. Charleston Cnty., 434 F.3d 725, 727–28 (4th Cir. 2006). But because we vacate the district court’s decision on the merits, we need not resolve this question.”

Vacated and Reversed

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7^th Circuit Court of Appeals

Case Name: BBL, Incorporated v. City of Angola

Case No: 14-1199

Officials: MANION, WILLIAMS, and SYKES, Circuit Judges

Practice Area: First Amendment – Zoning – Injunction

BBL, Inc petition for injunction preventing city’s amendment of zoning ordinances denied.

“Regulations on sexually oriented businesses are nearly always reviewed under intermediate scrutiny as contentneutral regulations. See, e.g., Alameda Books, 535 U.S. at 434 (plurality opinion); id. at 447–49 (Kennedy, J., concurring); Renton, 475 U.S. at 41; Foxxxy Ladyz Adult World, Inc. v. Village of Dix, 779 F.3d 706, 711–12 (7th Cir. 2015); Ben’s Bar, Inc. v. Village of Somerset, 316 F.3d 702, 723–24 (7th Cir. 2003). The “content-neutral” label in this context is a misnomer; regulations aimed at adult businesses apply to certain types of speech and not others. As such, Justice Kennedy remarked in his Alameda Books concurrence that “[t]hese ordinances are content based, and we should call them so.” Alameda Books, 535 U.S. at 448 (Kennedy, J., concurring).”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Scott McMahon v. LVNV Funding, LLC

Case No: 15-8018

Officials: WOOD, Chief Judge, and FLAUM and SYKES, Circuit Judges.

Practice Area: FDCPA – Creditor Debtor – Class Certification

Petition to appeal denial of class certification granted, district court’s denial of petition was in error

“On the merits, we agree with McMahon that the district court exceeded the bounds of its discretion when it denied class certification. As McMahon points out, the court’s analysis is inconsistent with this court’s decisions. Its reasoning suggests that the existence of individual issues of causation automatically bars class certification under Rule 23(b)(3). That overstates the case. Although “[p]roximate cause … is necessarily an individual issue,” we have explained that “the need for individual proof alone does not necessarily preclude class certification.” Pella Corp., 606 F.3d at 394; see Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 759 (7th Cir. 2014) (concluding that district court committed “error of law” by denying class certification where district court’s reason for denial was that “[t]he problem with the proposed class here is that showing reliance or causation—as required to establish liability— requires an investigation of each purchaser” (internal quotation marks omitted)); see also Bell v. PNC Bank, Nat’l Ass’n, 800 F.3d 360, 381 (7th Cir. 2015) (“[O]ur cases demonstrate that commonality as to every issue is not required for class certification.”); Mullins v. Direct Digital, LLC, 795 F.3d 654, 671 (7th Cir. 2015) (“It has long been recognized that the need for individual damages determinations at [a] later stage of the litigation does not itself justify the denial of certification.”); Arreola v. Godinez, 546 F.3d 788, 801 (7th Cir. 2008) (“[T]he need for individual damages determinations does not, in and of itself, require denial of [a] motion for certification.”).

Vacated and Remanded

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7^th Circuit Court of Appeals

Case Name: Debra Marshall v. Woodward, Inc.

Case No: 15-1866

Officials: FLAUM, MANION, and ROVNER, Circuit Judges.  

Practice Area: Qui Tam  – Whistleblower – Retaliatory Termination

Court affirms district court decision to award summary judgment on the merits in favor of defendant-appellants.

“But even reviewing the record in the light most favorable to plaintiffs, we agree with the district court that any reason‐ able jury would find that plaintiffs were terminated because of their insubordination, not protected activity. First, we agree with the district court that plaintiffs were in fact in‐ subordinate. Plaintiffs contend that they were following their training to protect U.S. military personnel, and thus were not insubordinate. But their training did not authorize them to repeatedly refuse to resume working in the face of direct commands from multiple supervisors and an investigation dismissing their concerns. Second, we also agree with the district court that plain‐ tiffs’ insubordination was the but for cause of their termination. Certainly, Woodward’s management was irritated by plaintiffs’ allegations. But Woodward terminated Marshall and Thurman only after investigating their concerns, informing plaintiffs that their concerns were unfounded, and giving plaintiffs multiple opportunities to resume their as‐ signed tasks. Instead, plaintiffs engaged in insubordination by repeatedly refusing to work when faced with overwhelming evidence contradicting their allegations. The BCOC investigation, which determined that Woodward would be justified in terminating plaintiffs because of their insubordination, further bolsters the conclusion that plaintiffs were fired because of insubordination, not protected activity. Therefore, the district court correctly concluded that no reasonable jury could find that plaintiffs were terminated because of protected activity.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Citadel Securities, LLC v. Chicago Board Options Exchange, Inc.

Case No: 14-3071; 14-2912

Officials: BAUER, FLAUM, and MANION, Circuit Judges.

Practice Area: Subject Matter Jurisdiction

Plaintiff’s fail to exhaust administrative remedies in case stemming from alleged improper fee charges.

“Plaintiffs have not clearly shown that the SEC’s administrative procedure is futile or inadequate to prevent irreparable injury. While there is no obvious path to the monetary compensation plaintiffs seek, it is impossible to say whether relief is available since plaintiffs have made no attempt to bring the matter before the SEC. We can envision situations in which reliance on administrative remedies would be clearly futile and SEC review might not be required, but plaintiffs have not convinced us that this is such a case.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Abidemi Ajayi

Case No: 14-2183

Officials: WOOD, Chief Judge, and ROVNER and WILLIAMS, Circuit Judges. 

Practice Area: Sufficiency of Evidence – Mutiplicitous Counts

Overwhelming evidence overcomes appellants allegations that evidence was insufficient to establish guilt. Several of the bank fraud charges are multiplicitous.

“The government introduced evidence establishing that the fraudulent alterations of the check were readily apparent, that Ajayi had control of the business account, with a $90.08 balance, that carried a balance of less than $332 the year before the deposit. The government also proved that Ajayi deposited the check through an ATM as opposed to a teller and that within five days of the check’s clearance, Ajayi withdrew approximately $171,000. He wrote checks to himself that he cashed at different branches, sent a wire transfer to a third‐party in Florida, and made purchases at retailers such as Gap and the Apple Store. While there was no direct evidence that Ajayi deposited the check knowing it had been altered, the government could also establish this fact by circumstantial evidence and by inferences drawn from the scheme itself. See United States v. Howard, 30 F.3d 871, 874 (7th Cir. 1994); see also United States v. Jackson, 540 F.3d 578, 594 (7th Cir. 2008). Based on the government’s circumstantial evidence regarding the ac‐ count balances and the way that Ajayi withdrew funds, a rtional juror could have found that Ajayi knowingly deposit‐ ed a fraudulent check. Additionally, there was evidence that the alterations on the check were obvious. Given these facts, Ajayi’s story that he was expecting a $45,000 check—but received one for almost $350,000, and cashed it—is highly suspect. Finally, this evidence was sufficient not only to establish that Ajayi deposited the check knowing of the alternation, but it also supports the money laundering conviction.”

Affirmed in part. Vacated as to counts 2, 3, 4 and 6 as multiplictous and remanded for resentencing

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Wisconsin Supreme Court

Supreme Court of Wisconsin

Case Name: Office of Lawyer Regulation v. Michael D. Mandelman

Case No: 2003AP3348-D, 2004AP2633-D, 2007AP2653-D, 2011AP584-D

Practice Area: Disciplinary Proceedings

Attorney does not satisfy conditions for reinstatement of license to practice law.

“However, our rules require Attorney Mandelman to prove that he has satisfied all of the requisite standards by clear and convincing evidence. Id. While we accept the referee’s determination that Attorney Mandelman is performing well in a structured academic environment, the record is lacking sufficient evidence that he is able to sustain the rigor and stress of a professional career, including managing significant loan obligations, such that he can be safely recommended to the Nos. 2003AP3348-D 2004AP2633-D 2007AP2653-D 2011AP584-D 19 legal profession, the courts, and the public as a person fit to be consulted by others and to represent them and otherwise act in matters of trust and confidence.“

A.W. Bradley, J., concurs. (Opinion Filed).

R.G. Bradley, J., did not participate.

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Supreme Court of Wisconsin

Case Name: Office of Lawyer Regulation v. Richard W. Voss

Case No:2014AP2086-D

Practice Area: Disciplinary Proceeding

Attorney already on suspension submits stipulation listing several other violations. License is suspended for an additional period.

“In his report, the referee recommended that the court impose a 60-day license suspension, to run consecutive to Attorney Voss’s present suspension. The referee wrote that a six-month period of suspension following Attorney Voss’s 18-month suspension, as the OLR requested, was unnecessary to meet the goals of Wisconsin’s disciplinary system——especially since, in the referee’s view, Attorney Voss’s misconduct has “more to do with sloppy office supervision and inadequate staff and self-training than it has to do with intentional professional misconduct.”

License suspended 60 days.

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Wisconsin Court of Appeals

WI Court of Appeals – District III

Case Name: Eric N. Soderlund v. David B. Zibolski

Case No: 2014AP2479

Officials: Stark, P.J., Hruz, J., and Thomas Cane, Reserve Judge.

Practice Area: Failure to State a Claim – First Amendment

Eric Soderlund appeals an order granting David Zibolski’s motion for judgment on the pleadings and dismissing Soderlund’s claims. Soderlund argues the circuit court erroneously determined he failed to state a retaliation claim under 42 U.S.C. § 1983 (2012) for violation of his First Amendment rights. We hold: (1) Soderlund failed to plead a claim against Zibolski in his official capacity; (2) based on our adoption of the federal incorporation-by-reference doctrine, the circuit court properly considered a document referenced in the complaint without transforming Zibolski’s motion into one for summary judgment; and (3) Soderlund’s speech was not protected by the First Amendment, because he spoke on a matter of personal concern, rather than public concern, and because he spoke in his capacity as a public employee, rather than as a citizen. Accordingly, we affirm

Affirmed

Recommended for Publication

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WI Court of Appeals – District III

Case Name: Roger Hoeppner v. Jesse Graveen

Case No: 2014AP2685

Officials: Stark, P.J., Hruz and Seidl, JJ.

Practice Area: Motion for Relief

Roger Hoeppner appeals an order denying a motion for relief from judgment. We affirm.

Affirmed. Per Curiam.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. David Aaron Piggue, Jr.

Case No: 2015AP152-CR

Officials: Kessler and Brennan, JJ., and Daniel L. LaRocque, Reserve Judge.

Practice Area: Pleas & Sentencing – Sentence Credit

David Aaron Piggue, Jr., who was convicted of witness intimidation, appeals the judgment of conviction and the postconviction order denying him sentence credit for time spent in custody awaiting trial for a sexual assault charge. Piggue was awaiting his sexual assault trial when he intimidated the assault victim, attempting to persuade her not to testify against him. On appeal he argues that because the trial court discussed the sexual assault, for which he was ultimately acquitted, when sentencing him for the intimidation charge, he should be awarded credit for the time he spent in custody related to the sexual assault charge. We disagree and affirm the trial court.

Affirmed

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WI Court of Appeals – District III

Case Name: Julie Ann Jaszczenski v. Richard Heise

Case No: 2015AP222

Officials: STARK, P.J.,

Practice Area: General Appeal – Failure to Form Legal Argument

Richard Heise, pro se, appeals a judgment for $7,100 resulting from incomplete and defective construction work he performed. We conclude Heise has failed to adequately develop any legal arguments and therefore affirm the judgment with the modifications discussed below. We also deny Julie Jaszczenski’s motion for frivolous appeal costs as untimely.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Thomas J. Anker

Case No: 2015AP342-CR

Officials: Stark, P.J., Hruz and Seidl, JJ.

Practice Area: Motion to Suppress – Scope of Court Mandate

Thomas Anker appeals an order denying his motion to suppress evidence obtained following his arrest. In an earlier appeal, this court reversed the judgment of conviction after the State failed to contest, thereby conceding, the asserted lack of probable cause to arrest Anker. We remanded the matter for the circuit court to consider whether the evidence was nonetheless admissible under either the independent source doctrine or the doctrine of inevitable discovery, and to conduct further proceedings necessary to make those determinations. On remand, the State presented no evidence regarding those two doctrines, but rather presented additional evidence related to the probable cause issue. The circuit court then denied Anker’s motion to suppress, concluding the arresting officer had probable cause to arrest Anker and, in the alternative, the evidence sought to be suppressed would have been inevitably discovered without reliance on the premature arrest. We reverse the order because the probable cause determination ignores the law of the case and was beyond the scope of this court’s remand mandate, and because the record in this case does not support application of the inevitable discovery doctrine.

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WI Court of Appeals – District III

Case Name: M. Blank Properties, LLC v. George Cole

Case No: 2015AP456

Officials: SEIDL, J.

Practice Area: Landlord Tenant – Eviction

George Cole appeals a judgment of eviction. Cole argues M. Blank Properties, LLC, (Blank) created a month-to-month periodic tenancy when it accepted his rent payments after expiration of his written lease, and it failed to give adequate notice before terminating the periodic tenancy. We agree and therefore reverse the judgment of eviction

Reverse and Remanded

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WI Court of Appeals – District I

Case Name: Statt of Wisconsin v. Freddrick Terrell Pollard

Case No: 2015AP530-CR

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

Practice Area: Pleas & Sentencing – Improper Sentencing

Freddrick Terrell Pollard appeals a judgment convicting him of one count of armed robbery with a dangerous weapon, one count of third-degree sexual assault, and one count of felon in possession of a firearm. He also appeals an order denying his postconviction motion. Pollard argues that the circuit court sentenced him on the basis of inaccurate information. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Larry J. Smith

Case No: 2015AP2653-CR

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

Practice Area: Expert Testimony – Daubert Test

Larry Smith was convicted by a jury of two counts of repeated sexual assault of a child and one count of second-degree sexual assault of a child. Smith argues that the court erred in permitting expert testimony by a social worker that did not meet the reliability standards established by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and that he received ineffective assistance of counsel when his counsel elicited statements at trial that the victim was truthful. We affirm. The court properly considered other indicia of reliability in permitting expert testimony from a social worker who had extensive experience with child sexual assault victims and the behaviors exhibited by such victims. We also find that Smith’s counsel was not ineffective in pursuing a trial strategy aimed at impeaching an investigator who believed she could “read people’s minds.”

Affirmed.

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WI Court of Appeals – District II

Case Name: State Farm Fire & Casualty Company v. Easy PC Solutions, LLC

Case No: 2014AP2657

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

Practice Area: Insurance – Duty to Defend

Wilder Chiropractic, Inc., filed a class-action lawsuit alleging Easy PC Solutions, LLC, violated the Telephone Consumer Protection Act (TCPA) and committed conversion by transmitting unsolicited facsimiles on three separate dates in September and October 2010. Easy PC tendered its defense to State Farm Fire & Casualty Company, which refused to provide a defense. Easy PC settled the lawsuit with Wilder, to whom it assigned its rights to recover from State Farm. State Farm subsequently brought this declaratory judgment action, in which the circuit court found that State Farm had no duty to defend Easy PC against Wilder’s claims. On appeal, Wilder argues the court erred in relying on a 2010-11 insurance policy and in finding that the policy excluded coverage. We disagree and affirm. The class-action complaint alleged injuries that occurred on three dates in September and October 2010, during which State Farm’s policy with Easy PC excluded coverage for TCPA and TCPA-related claims, and therefore State Farm had no duty to defend Easy PC against Wilder’s lawsuit.

Affirmed

Recommended for publication

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WI Court of Appeals – District II

Case Name: Estate of Joyce O. Traxler v. Thomas W. Traxler, Jr.

Case No: 2015AP551

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

Practice Area: Real Estate – Trusts & Estates – Motion to Withdraw Admission

This case involves a dispute over Joyce O. Traxler’s post-will transfer of real estate to her son, Thomas W. Traxler, Jr. After Joyce’s motion to withdraw her admissions was denied, the court granted summary judgment in favor of Thomas and Farmers & Merchants Bank (collectively, Thomas) and granted Thomas statutory fees and costs. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Deyul Thames

Case No: 2014AP2053-CR, 2014AP2054-CR

Officials: Kloppenburg, P.J., Lundsten and Blanchard, JJ.

Practice Area: Violation of Due Process

Deyul Thames appeals judgments of conviction and an order denying a postconviction motion without a hearing. Thames contends that he was denied due process, the right to self-representation, and the effective assistance of counsel. He also argues that his postconviction motion set forth sufficient material facts to entitle him to an evidentiary hearing. For the reasons set forth below, we reject these arguments. We affirm the judgments of conviction and the order denying postconviction relief.

Affirmed

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WI Court of Appeals – District IV

Case Name: Sue E. Martinson-Zyhowski v. Karl A. Zyhowski

Case No: 2014AP2565

Officials: Kloppenburg, P.J., Higginbotham and Sherman, JJ.

Practice Area: Divorce – Property Division

Karl Zyhowski appeals a judgment of divorce. The issues relate to property division. Based on a concession of respondent Sue Martinson-Zyhowski as to one issue, we reverse and remand with directions to amend the judgment. Beyond that, we affirm

Affirmed. Per Curiam.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Lawrence T. Davis

Case No: 2014AP2725-CR

Officials: Higginbotham, Sherman and Blanchard, JJ.

Practice Area: Waiver of Counsel – Withdrawal

Lawrence Davis, pro se, appeals from a judgment of conviction for armed robbery, armed burglary, and nine counts of false imprisonment, and an order denying his motion for postconviction relief. Davis raises a number of arguments regarding his trial and the postconviction proceeding, which we reject for the reasons discussed below.

Affirmed. Per Curiam.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. James Adrin Schmeisser

Case No: 2015AP233-CR

Officials: Lundsten, Sherman and Blanchard, JJ.

Practice Area: Sufficiency of Evidence – Improper Sentencing

James Schmeisser appeals judgments of conviction and an order denying his postconviction motion. He makes the following arguments: first, that the evidence was insufficient to support his three convictions; second, that the circuit court erred in permitting the jury to hear a 911 call; and third, that his sentence is unduly harsh. We affirm.

Affirmed. Per Curiam.

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WI Court of Appeals – District IV

Case Name: Adams co. DHHS v. D.S.

Case No: 2015AP1937

Officials: HIGGINBOTHAM, J.

Practice Area: Termination of Parental Rights

D.S. appeals a circuit court order terminating her parental rights to her daughter, J.S. D.S. contends that the Adams County Department of Health and Human Services (the County)2 violated her substantive due process rights by imposing conditions of return that were impossible for her to meet and impermissibly relying on D.S.’s “poverty” in support of the County’s allegation that D.S. failed to satisfy the conditions of return of J.S. D.S. also contends that the circuit court erred in concluding that termination of D.S.’s parental rights was in J.S.’s best interests. For the reasons explained below, we reject D.S.’s arguments and affirm.

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