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Weekly Case Digests — Nov. 21-23, 2016

By: WISCONSIN LAW JOURNAL STAFF//November 23, 2016//

Weekly Case Digests — Nov. 21-23, 2016

By: WISCONSIN LAW JOURNAL STAFF//November 23, 2016//

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7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Kenosha Unified School District No.1 Board of Education, et al v. Ashton Whitaker

Case No.: 16-8019

Officials: RIPPLE, KANNE, and WILLIAMS, Circuit Judges.

Focus: Lack of Jurisdiction – Title IX

Plaintiff Ash Whitaker is a transgender boy whose high school will not permit him to use the boys’ bath‐ room. He sued the school district for discriminating against him on the basis of sex, in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, and the Equal Protection Clause of the Fourteenth Amendment. After the district court denied the defendants’ motion to dismiss, the defendants filed this petition for interlocutory appeal. The defendants asserted that appellate jurisdiction is proper un‐ der 28 U.S.C. § 1292(b), but the district court has since vacated its certification. Thus we lack appellate jurisdiction.

Petition Denied

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7th Circuit Court of Appeals

Case Name: Meanith Huon v. Nick Denton, et al

Case No.: 15-3049

Officials: EASTERBROOK and WILLIAMS, Circuit Judges, and YANDLE, District Judge

Focus: Defamation – Court Error

Meanith Huon sued the website Above the Law for implying that he was a rapist in an article published on the same day he was acquitted of rape. When another website, Jezebel (which was owned by Gawker at the time), reported on the lawsuit in an article entitled, “Acquitted Rapist Sues Blog for Calling Him Serial Rapist,” Huon added Gawker to the lawsuit. He accused Gawker of defamation, false light invasion of privacy, and intentional infliction of emotional distress with regard to (i) the article’s headline, (ii) its description of Huon’s criminal trial and sub- sequent complaint against Above the Law, and (iii) certain comments posted by a number of anonymous third-party users (at least some of whom Huon claimed were Gawker employees). The district judge granted Gawker’s motion to dismiss as to all of Huon’s claims, and later denied him leave to file a fifth amended complaint. Huon appeals both decisions.

We conclude that the district judge correctly rejected Huon’s defamation claim as to the article. The title can be construed innocently when viewed with the rest of the article as a whole, and the article’s text fairly reported on both Huon’s criminal trial and his initial complaint against Above the Law. In addition, the district judge did not err in denying Huon leave to file a fifth amended complaint, since Huon had ample opportunity to cure any deficiencies.

However, we reverse and remand the district judge’s rejection of Huon’s defamation claim as to the third-party user comments. Huon adequately alleged that Gawker helped create and develop at least some of the comments, and one of the comments constitutes defamation under Illinois law. We also reverse and remand the district judge’s rejection of Huon’s false-light and intentional-infliction claims, which were dismissed against Gawker based solely on the rejection of his defamation claims. Since part of his defamation claim can proceed, so too can his false-light and intentional- infliction claims.

Affirmed

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7th Circuit Court of Appeals

Case Name: Cortez Jones v. Victor Calloway

Case No.: 15-1174

Officials: EASTERBROOK, ROVNER, and SYKES, Circuit Judges

Focus: Ineffective Assistance of Counsel

Ruling on Jones’s § 2254 petition, the district court excused the procedural default based on new evidence of Jones’s actual innocence—namely, Stone’s testimony. After an evidentiary hearing, the judge concluded that the state appellate court unreasonably applied Strickland and that trial counsel’s failure to present Stone’s testimony was constitutionally ineffective representation. The judge accordingly granted the petition and ordered Jones retried or released.

We affirm. The judge’s decision to excuse the procedural default was sound, as was his merits ruling. Trial counsel’s failure to call Stone cannot reasonably be classified as a mere matter of trial strategy within the range of objectively reasonable professional judgments. Omitting the available testimony of the man who admits to being the lone shooter was both constitutionally deficient performance and prejudicial.

Affirm

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7th Circuit Court of Appeals

Case Name: United States of America v. Lisa A. Lewis

Case No.: 16-1401

Officials: WOOD, Chief Judge, and KANNE and HAMILTON, Cir‐ cuit Judges.

Focus: Breach of Plea Agreement

Over a seven‐year period, Lisa A. Lewis embezzled more than $2 million from twelve people who were 75 to 92 years old. Pursuant to a plea agreement, she pled guilty to one count of wire fraud in violation of 18 U.S.C. § 1343, and the government agreed to a specific sentencing guidelines calculation. The government also agreed to recommend no more than ten years’ imprisonment at her sentencing hearing.

At the first sentencing hearing, the district court sentenced Lewis to fifteen years’ imprisonment. Shortly thereafter, we decided United States v. Thompson, 777 F.3d 368 (7th Cir. 2015). Lewis appealed raising only the issue of her supervised‐re‐ lease conditions. In light of Thompson, we remanded for resentencing. Before the resentencing hearing, Lewis filed a motion arguing for the first time that the government had breached the plea agreement. The district court denied the motion and held that Lewis had waived this argument by failing to raise it at the first sentencing or on the first appeal. The district court then sentenced Lewis to the same fifteen‐year term.

On appeal, Lewis now argues that she did not waive her argument that the government breached the plea agreement. She reasserts that argument now. Lewis also argues that the district court erred at sentencing by (1) applying a sentencing enhancement based on the vulnerability of her victims and (2) imposing a substantively unreasonable sentence.

We hold that the district court did not err by refusing to hear Lewis’s argument, but it did err by not affirmatively acknowledging that it had the authority to do so. But because the district court alternatively rejected that argument, and because we believe that the argument is meritless, we hold that the district court’s error is harmless. Finally, we hold that the district court did not err at sentencing because the vulnerable‐ victim enhancement was properly applied and the district court’s sentence was substantively reasonable.

Affirmed

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7th Circuit Court of Appeals

Case Name: Kerry Adolphson v. Commissioner of Internal Revenue

Case No.: 15-2242

Officials: FLAUM, MANION, and WILLIAMS, Circuit Judge

Focus: Subject Matter Jurisdiction – Tax

This is a difficult tax case made more so by the refusal of the Commissioner of Internal Revenue to engage the taxpayer’s arguments or the tax court’s decision. Kerry Adolphson, who has failed to file a tax re‐ turn since at least 2002, challenges levies used by the IRS to collect his unpaid taxes. The tax court dismissed his petition for lack of subject‐matter jurisdiction because Adolphson had not challenged the levies administratively, see 26 U.S.C. § 6330(d), and, therefore, lacked the requisite notice of de‐ termination from the IRS Office of Appeals.

Adolphson contends that because the IRS prevented him from obtaining a notice of determination by failing to properly notify him of its intent to levy, the tax court should have declared the levies invalid. To support his argument, Adolphson relies on a line of cases where the tax court accepted this argument and invalidated levies despite the fact that absent a notice of determination, the tax court lacks the statutory authority to hear a taxpayer’s claim. While we agree with Adolphson that his case is indistinguishable from this line of tax court precedent, we affirm the judgment dismissing Adolphson’s petition because we find that those decisions are unsound and reflect an improper extension of the tax court’s jurisdiction.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Robert Cardena, Tony Sparkman, Jorge Uriarte, Hecotr Uriarte and Glenn Lewellen

Case No.: 12-3680; 12-3683; 12-3747; 13-1374; 23-2321

Officials: KANNE, ROVNER, and HAMILTON, Circuit Judges.

Focus: General Appeal – Plea Agreements

Chicago Police Department officer Glenn Lewellen arrested drug dealer Saul Rodriguez in 1996 and eventually turned him into an informant. By 1998, the two had established a more lucrative arrangement: Rodriguez would collect information about local drug dealers, and then Lewellen would make a seemingly legitimate detention of the dealers and rob them of their drugs and money. Over the next several years, Rodriguez and Defendant Lewellen ran a successful criminal enterprise, bringing in at least thirteen more participants, including Defendants Hector Uriarte (“Hector”), Jorge Uriarte (“Jorge”), Tony Sparkman, and Robert Cardena. Robbing drug dealers eventually escalated into kidnapping them for ransom money or even murdering them for money and drugs.

Although several of the members arranged plea agreements, six of the organization’s members were tried, and five were convicted. They appealed, challenging various aspects of their convictions, and we affirm. In addition, Defendants Hector, Jorge, and Sparkman challenge their sentences. We vacate those sentences and remand for resentencing in light of Alleyne v. United States, 133 S. Ct. 2151 (2013).

Affirmed in part

Vacated and remanded in part

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WI Court of Appeals Digest

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Isiah O. Smith

Case No.: 2015AP1645-CR

Officials: Kessler, Brennan and Brash, JJ.

Focus: Sufficiency of Evidence – Ineffective Assistance of Counsel

Isiah O. Smith appeals a judgment of conviction, following a jury trial, of one count of second-degree reckless homicide as a party to a crime. Smith also appeals from the order denying his postconviction motion for relief pursuant to WIS. STAT. § 809.30 (2013-14). On appeal, Smith argues that: (1) there was insufficient evidence to convict him of second-degree reckless homicide as a party to a crime; (2) the trial court erred in failing to issue a jury instruction used by the United States Court of Appeals for the Seventh Circuit addressing a party’s “mere presence” during the commission of a crime; and (3) trial counsel was ineffective for failing to remove a juror, who was fearful of retaliation from Smith’s family, from the jury panel during deliberations. We affirm.

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WI Court of Appeals – District I

Case Name: Daniel J. Vidmar v. Milwaukee City Board of Fire Police Commissioners

Case No.: 2015AP1832

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

Focus: Court Error – Incorrect Theory of Law

Daniel J. Vidmar appeals an order affirming the decision of the Milwaukee City Board of Fire and Police Commissioners (Board) to permanently discharge him from his employment as a police officer with the Milwaukee Police Department (Department). Vidmar makes the following arguments on appeal: (1) the Board proceeded on an incorrect theory of law; (2) the circuit court wrongly concluded that deference was owed to the Board’s findings of fact and credibility determinations; and (3) the circuit court erred by applying an incorrect standard of review. We disagree and affirm.

Recommended for publication

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WI Court of Appeals – District III

Case Name: Wilmington Savings Fund Society v. Jeffrey W. Roop et al

Case No.: 2015AP1952

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

Focus: Foreclosure

Jeffrey and Linda Roop, pro se, appeal a summary judgment of foreclosure in favor of Wilmington Savings Fund Society, FSB (“Wilmington Savings”). We affirm.

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WI Court of Appeals – District III

Case Name: Willie R. Pettengill v. Natash J. Henning

Case No.: 2015AP2283

Officials: Stark, Hruz & Seidl

Focus: Change of Placement – Custody

Willie Pettengill, pro se, appeals the denial of a request for change of placement and custody. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Andre Allen Bridges

Case No.: 2015AP2659

Officials: Kessler, Brennan and Brash

Focus: Motion to Reconsideration – Denial of Motion

Andre A. Bridges, pro se, appeals from an order of the circuit court that denied his WIS. STAT. § 974.06 (2013-14) motion without a hearing. He also appeals from an order denying his motion for reconsideration. We affirm the orders.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Brenda S. Webster

Case No.: 2016AP225-CR

Officials: Stark, Hruz and Seidl

Focus: Motion ti Disqualify – Interpreter – Court Error

Brenda Webster appeals a judgment convicting her of armed robbery, misdemeanor battery, felony intimidation of a victim, and disorderly conduct with use of a dangerous weapon. At Webster’s trial, the victim testified through an interpreter. Webster argues on appeal that the circuit court should have granted her motion to disqualify the interpreter and strike the victim’s testimony, based on errors in the interpreter’s translation. Webster also argues the circuit court erred by failing to determine, on the record, that the interpreter was qualified as an expert witness. We reject these arguments and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Ronnell Farr

Case No.: 2015AP1901

Officials: Neubauer, Reilly, Gundrum

Focus: Ineffective Assistance of Counsel

A jury found Ronnell Farr guilty of first-degree intentional homicide in the shooting of Michael Bender outside of a bar called Quarters. Farr did not dispute that he shot Bender but claimed it was not intentional. This court affirmed the judgment of conviction and the order denying his motion for postconviction relief. See State v. Farr, No. 2013AP504-CR, unpublished slip op. (WI App Feb. 18, 2014) (Farr I). Farr’s pro se WIS. STAT. § 974.06 (2013-14)1 motion for postconviction relief that underlies this appeal was denied without a hearing. Farr seeks either a hearing on his claims of ineffective assistance of trial and postconviction counsel or a new trial. We affirm the order.

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WI Court of Appeals – District II

Case Name: Bruce W. Bullamore et al v. Robert W. Bednar, et al

Case No.: 2015AP2383

Officials: Neubauer, Reilly, Gundrum

Focus: Trust Beneficiaries

Brothers Bruce W. and Russell C. Bullamore appeal from an order for summary judgment dismissing their claims against Robert Bednar, Robbyn Shye, and Richard Robsel, the beneficiaries of their deceased former stepmother’s trust. The Bullamore brothers maintain that they were entitled to receive one-half of their former stepmother’s assets and that the circuit court improperly granted summary judgment in favor of Bednar, Shye, and Robsel. We disagree and affirm.

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WI Court of Appeals – District II

Case Name: Midland Funding, LLC v. Korry Ardell

Case No.: 2016AP756; 2016AP757; 2016AP758

Officials: Reilly

Focus: Lack of Meritorious Defense – Default Judgment

Korry Ardell appeals from orders denying his motions to reopen a default judgment in favor of Midland Funding LLC (Midland) entered in three small claims actions. Ardell claimed he did not receive the summons and complaint or notice of the pretrial conference in any of the cases. The circuit court denied Ardell’s motion, concluding that Ardell failed to demonstrate excusable neglect or set forth a meritorious defense to Midland’s claims. We agree and affirm the circuit court’s discretionary decision.

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WI Court of Appeals – District IV

Case Name: Peter Briggs et al v. Roger Romanski, et al

Case No.: 2015AP2262

Officials: Kloppenburg, Lundsten, Sherman

Focus: Breach of Contract – Sanctions

Peter Briggs and Briggs Properties, II, LLC brought breach of contract and misrepresentation claims against Roger Romanski and Daaran Realty, Inc., concerning the alleged failure to disclose certain conditions affecting property sold to the Briggs plaintiffs.1 The circuit court dismissed the Briggs plaintiffs’ claims on summary judgment, denied their motion for reconsideration, and ordered Peter Briggs and his trial counsel to pay $2,000 in sanctions to the Romanski defendants’ trial counsel for failure to determine the proper parties. Briggs Properties appeals the dismissal of its claims on summary judgment, and Briggs and his trial counsel appeal the sanctions order. We conclude that the Romanski defendants have failed to demonstrate that they are entitled to summary judgment dismissing Briggs Properties’ claims, and that the circuit court properly exercised its discretion in imposing sanctions. Therefore, we affirm the sanctions order and reverse the summary judgment order.

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WI Court of Appeals – District IV

Case Name: Portage County Department of Health and Human Services v. D.B.

Case No.: 2016AP1233; 2016AP1234

Officials: Lundsten

Focus: Termination of Parental Rights

D.B. appeals the circuit court’s orders terminating her parental rights to her children A.R. and G.R. D.B. argues (1) that, during the grounds phase of the proceedings, the circuit court committed prejudicial error when the court admitted “bonding” evidence; (2) that D.B.’s counsel was ineffective by failing to object to this evidence; (3) that the circuit court erred when it denied D.B.’s motion for a new trial; and (4) that, during the dispositional phase of the proceedings, the circuit court erred by failing to consider whether the children had substantial relationships with D.B. and other family members or whether severing those relationships would he harmful. For the reasons below, I affirm.

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WI Court of Appeals – District IV

Case Name: Dane County Department of Human Services v. S.C.

Case No.: 2016AP1787

Officials: Kloppenburg

Focus: Termination of Parental Rights

S.C. seeks reversal of the order terminating her parental rights to her daughter D.C. During the first phase of the circuit court proceedings, S.C. pled no contest to grounds for involuntary termination, which resulted in a finding of parental unfitness. After conducting a dispositional hearing, the court found that termination is in the best interests of the child and terminated S.C.’s parental rights. S.C. argues that the circuit court erroneously exercised its discretion in how it considered certain of the statutory factors, specifically: (1) the likelihood of D.C.’s adoption and of a more stable and permanent family relationship as a result of termination; and (2) the impact of termination on D.C.’s broader relationships with her siblings and S.C. See WIS. STAT. § 48.426(3)(a), (c), and (f). For the reasons set forth below, I reject S.C.’s argument and affirm.

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