Please ensure Javascript is enabled for purposes of website accessibility

Weekly Case Digests — May 1-5, 2017

By: WISCONSIN LAW JOURNAL STAFF//May 5, 2017//

Weekly Case Digests — May 1-5, 2017

By: WISCONSIN LAW JOURNAL STAFF//May 5, 2017//

Listen to this article

7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Robin Willie Turner v. Hirschbach Motor Lines

Case No.: 15-3263

Officials: POSNER, SYKES, and HAMILTON, Circuit Judges.

Focus: Court Error – Title VII

Plaintiff Robin Turner sued defendant Hirschbach Motor Lines for failing to hire him as a truck driver after his routine drug test was positive for marijuana use. Turner alleges the decision was racially discriminatory, but the district court granted summary judgment against him. Turner argues that the district court erred in requiring him to offer evidence both (a) that racial animus of a Hirschbach employee who was not a decision-maker caused the decision not to hire him, and (b) that Hirschbach and a medical doctor came to an agreement to cancel Turner’s request for a second drug test. We affirm. The district court correctly concluded that Turner lacked evidence supporting his federal claim for race discrimination and his state-law claim for civil conspiracy.

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: Medical College of Wisconsin Affiliated Hospitals, Inc.

Case No.: 16-3863

Officials: EASTERBROOK, ROVNER, and SYKES, Circuit Judges

Focus: Tax Refund

Medical College of Wisconsin, a nonprofit corporation, received a refund of Social Security (FICA) taxes after the Internal Revenue Service ruled that medical residents were exempt from them until April 1, 2005. (A regulation governing later periods requires hospitals to pay FICA taxes on residents’ salaries. See Mayo Foundation for Medical Education & Research v. United States, 562 U.S. 44 (2011).) The IRS added to the refund approximately $13 million in interest but later demanded $6.7 million back, informing Medical College that it had used too high a rate. Medical College returned the money and filed this suit un‐ der 28 U.S.C. §1346(a)(1), asking to have the disputed sum restored. See also 26 U.S.C. §7422. The district court rejected its request, 2016‐2 U.S. Tax Cas. (CCH) ¶50,409 (E.D. Wis. Sept. 14, 2016), precipitating this appeal.

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: Alaa I. Musa v. Commissioner of Internal Revenue

Case No.: 16-1841

Officials: BAUER, SYKES, and HAMILTON, Circuit Judges.

Focus: Duty of Consistency – Tax

The central issue in this appeal from the Tax Court is how to apply the “duty of consistency,” an equitable tax doctrine analogous to judicial estoppel, which prevents a party from prevailing in a court proceeding by taking one position and then taking a contradictory posi‐ tion in a later case. See Kielmar v. Commissioner, 884 F.2d 959, 965 (7th Cir. 1989). The Tax Court correctly applied the duty of consistency in this case to prevent a taxpayer’s unfair tactic to minimize the consequences of his fraud.

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: United States of America v. Alan H. Gold

Case No.: 16-3678

Officials: BAUER, POSNER, and HAMILTON, Circuit Judges.

Focus: Sentencing

The defendant was indicted for wire fraud, 18 U.S.C. § 1343, and pleaded guilty. The presentence investigation report prepared by the Probation Office stated that his guideline prison-sentence range was 70 to 87 months, a range based on the report’s estimation that the loss to the victims of the fraud had slightly exceeded $1.8 million. The district judge sentenced the defendant to 75 months in prison, to three years of supervised release, and to pay restitution to the victims of his fraud. On appeal the defendant argues that the financial loss he caused was closer to $1 million, which would have put him in a lower guidelines range, see U.S.S.G. § 2B1.1(b)(1), and that the district judge should have considered giving him a shorter prison sentence than 75 months for the additional reason that shaving time off the term would give him more time to earn the money he would need in order to be able to make restitution to his victims.

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: United States of America v. John D. Terzakis

Case No.: 16-3340

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

Focus: Attorney Fees

John D. Terzakis was indicted for transporting stolen goods. After the government conceded that its key witness would be unavailable to testify at trial, it moved to dismiss the case. Terzakis then filed a motion under the Hyde Amendment seeking attorney’s fees, which the district court denied. For the following reasons, we affirm.

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: Johnnie Watkins v. United States of America

Case No.: 16-2109

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

Focus: Statute of Limitations

This appeal is from the district court’s dismissal, on statute of limitations grounds, of a medical malpractice claim.The plaintiff, Johnnie Watkins, filed the action on behalf of her adult daughter Johnnice Ford, who is a disabled person. The complaint alleged that Ford sought treatment at the emergency room of Ingalls Memorial Hospital, where she was treated by Dr. Bari Parks‐Ballard, an employee of Family Christian Health Center. She asserts that Parks‐ Ballard failed to properly diagnose and treat Ford, who was eventually diagnosed with Wernicke’s encephalopathy and who sustained neurological injuries including permanent disability. Because Family Christian Health Center operated pursuant to grant money from the Public Health Services, an agency of the United States government, the action was brought pursuant to the Federal Tort Claims Act (FTCA) and the United States is the defendant. The district court dismissed the action as filed beyond the relevant statute of limitations, and the plaintiff appeals that determination. On appeal, the plaintiff argues that the court erred in taking judicial notice of Ford’s prior lawsuit and dismissing the case based on the statute of limitations without allowing her to establish that Ford suffered from a mental disability. We agree with the reasoning of the district court and affirm

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: United States of America v. David G. Wenzel

Case No.: 16-1323

Officials: WOOD, Chief Judge, and FLAUM and EASTERBROOK, Circuit Judges

Focus: Motion to Suppress

David G. Wenzel appeals the denial of his motion to suppress evidence gathered as the result of search warrants executed on his home. For the following reasons, we affirm.

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: Lois Marie Trask v. Edgar Rodriguez, et al

Case No.: 14-2601

Officials: POSNER, SYKES, and HAMILTON, Circuit Judges.

Focus: False Arrest

Lois Trask was gambling at the Horseshoe Casino in Hammond, Indiana, when she picked up a $20 bill from the casino floor. Casino personnel determined from security videos that another patron had dropped the cash, and for more than an hour Trask was detained and accused of being a thief. Claiming that the detention had violated her rights, she filed this suit under both 42 U.S.C. § 1983 and Indiana tort law.

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: Triandus Tabb v. Tim Christianson

Case No.: 16-1826

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

Focus: Witness Identification

On September 6, 2003, at 1:20 p.m., Salvador Gomez stopped his car at a red light at a Chicago intersection. Through the driver-side window, a man approached and tried to steal his car. When Mr. Gomez would not yield, the attacker shot him three times. Mr. Gomez survived. He later identified petitioner Triandus Tabb as the shooter. Tabb was convicted in Illinois state court of attempted first-degree murder, aggravated battery with a firearm, and attempted aggravated vehicular hijacking. At trial, the crux of the State’s evidence was the victim’s identification of Tabb. Over the long course of state and federal court proceedings in his case, Tabb finished his prison sentence but is still under mandatory supervised release. He now appeals the denial of his habeas corpus petition challenging his conviction.

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: Timothy Ozinga, et al v. Thomas E. Price

Case No.: 15-3648

Officials: EASTERBROOK, ROVNER, and SYKES, Circuit Judges

Focus: Enforcement of Affordable Care Act – Declaratory Relief

Ozinga Brothers, Inc. (“Ozinga Brothers”) is a family-owned firm supplying ready-mix concrete products and services to builders primarily in the Chicago metropolitan area. The company, along with its owners and senior managers (collectively, “Ozinga”) filed this suit in 2013, challenging the so-called contraception mandate emanating from the Patient Protection and Affordable CareAct of 2010 (the “Affordable Care Act”), 124 Stat. 119 (Mar. 23, 2010). The mandate is embodied in federal regulations implementing a requirement of the Affordable Care Act that nonexempt and non-grandfathered group health plans provide specified preventative-health services to plan participants without cost-sharing; among those services are contraceptives approved by the Food and Drug Administration. See 42 U.S.C. § 300gg-13(a)(4); 45 C.F.R. § 147.130(a)(1)(iv); 29 C.F.R. § 2590.715-2713(a)(1)(iv); 26 C.F.R. § 54.9815-2713(a)(1)(iv); http://hrsa.gov/womensguidelines2016/index.html (women’s preventative service guidelines) (visited April 26, 2017). Employers who refuse to provide such services are subject to substantial fines. See 26 U.S.C. § 4980H. Ozinga regards certain of the contraceptives covered by the mandate as potential abortifacients, the use of which is proscribed by the firm owners’ and managers’ religious tenets. Invoking the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb, et seq., among other statutory and constitutional provisions, Ozinga sought declaratory and injunctive relief barring the enforcement of the mandate.

Vacate and Remand

Full Text

7th Circuit Court of Appeals

Case Name: Terry C. Johnson v. Abdi Tinwalla

Case No.: 15-3525

Officials: POSNER, ROVNER, and WILLIAMS, Circuit Judges.

Focus: Violation of Due Process

Terry Johnson, the plaintiff, is an inmate of the Rushville Treatment and Detention Facility— “an Illinois state facility for the diagnosis, treatment, and (pending successful treatment) incarceration of persons believed prone to sexual violence.” Hughes v. Scott, 816 F.3d 955, 955 (7th Cir. 2016). The defendant, Dr. Tinwalla, is a psychiatrist, employed by Wexford Health Sources, who works at the Rushville facility. The suit charges him with having violated both the plaintiff’s constitutional right to due process of law and Illinois law, by causing the plaintiff to take the antipsychotic drug Risperdal (and for more than a month) without the plaintiff’s knowledge or consent. The district judge granted summary judgment in favor of the defendant, precipitating this appeal.

Reversed and Remanded

Full Text

7th Circuit Court of Appeals

Case Name: Hernel Silais v. Jefferson B. Sessions III

Case No.: 15-3277

Officials: WOOD, Chief Judge, and FLAUM and EASTERBROOK, Circuit Judges

Focus: Petition for Asylum

Hernel Silais, a Haitian citizen and opposition political party member, petitioned the United States for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). The Immigration Judge, and later the Board of Immigration Appeals (collectively, the “Agency”), denied his petition. We do the same.

Petition Denied

Full Text

7th Circuit Court of Appeals

Case Name: Gilbert Spiller v. United States of America

Case No.: 15-2889

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

Focus: Ineffective Assistance of Counsel

Gilbert Spiller pled guilty to drug and firearm charges. He later filed a petition under 28 U.S.C. § 2255, arguing that his counsel was constitutionally ineffective during the plea-bargaining process. The district court denied Spiller’s petition without holding an evidentiary hearing. We affirm

Affirmed

Full Text

WI Court of Appeals Digests

WI Court of Appeals – District IV

Case Name: City of Madison v. Family Business LLC et al

Case No.: 2012AP2179

Officials: Brennan, P.J., Brash and Dugan, JJ.

Focus: Forfeiture

This case comes before us on remand from the supreme court. The supreme court issued an order granting, in part, the petition for review in the case of City of Madison v. Family Business LLC, No. 2012AP2179, unpublished slip op. (WI App Sept. 16. 2014). The petition for review was granted solely to allow for “further consideration of whether the $5[]000.00 forfeiture is a proper remedial sanction for Roderick Flowers’ contempt.” See City of Madison v. Family Bus. LLC, No. 2012AP2179, unpublished order (WI July 1, 2015), cert. denied, 136 S. Ct. 1181 (2016). The supreme court vacated our decision with respect to that issue. Upon reconsideration, our conclusion remains the same: The circuit court acted properly in finding Flowers in remedial contempt and in imposing the forfeiture as a sanction for the contempt.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. John A. Augoki

Case No.: 2016AP231-CR

Officials: Kessler, Brash and Dugan, JJ.

Focus: Plain Error – Motion for New Trial

John A. Augoki appeals the judgment of conviction of three counts of first-degree sexual assault of a child and the order denying his post-conviction motion for a new trial. Augoki argues that the trial court committed plain error when it allowed the State to present other acts evidence and violated his right to confrontation by limiting his cross-examination of the State’s expert. We disagree and for the reasons set forth below we affirm.

Full Text

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Jesse G. Donnelly

Case No.: 2016AP296-CR

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

Focus: Sentencing

Jesse Donnelly appeals a judgment sentencing him to five years’ initial confinement and five years’ extended supervision for child enticement—sexual contact. He contends the author of the presentence investigation report (PSI) was biased against him and he was sentenced on the basis of false information. We reject these arguments and affirm the judgment.

Full Text

 

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Anthony Sandifer

Case No.: 2016AP301; 2016AP302

Officials: Brennan, P.J., Brash and Dugan, JJ.

Focus: Court Error – Ineffective Assistance of Counsel

In these consolidated appeals, Anthony Sandifer, pro se, appeals from orders denying his WIS. STAT. § 974.06 motion for postconviction relief. Sandifer argues that the circuit court erroneously exercised its discretion when it denied his postconviction motion—which alleged ineffective assistance of trial and postconviction counsel—without a hearing. He also argues that one of his convictions is void. We affirm.

Full Text

WI Court of Appeals – District III

Case Name: James Donaldson et al v. K&R Cross, Inc.

Case No.: 2016AP800

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

Focus: Trespasser

James Donaldson appeals a summary judgment dismissing his common law negligence and safe place statute claims against a restaurant and related parties. We agree with the circuit court that the summary judgment materials demonstrate, as a matter of law, that Donaldson was a trespasser on an outdoor stairway and landing at the restaurant at the time his injuries occurred. Accordingly, we affirm

Full Text

 

WI Court of Appeals – District III

Case Name: State of Wisconsin v. J.J.S.

Case No.: 20167AP1519

Officials: Seidl, J.

Focus: Juvenile Delinquency

J.J.S. appeals a circuit court dispositional order entered in this juvenile delinquency proceeding imposing restitution against him for $1,600. He argues the circuit court incorrectly interpreted the statute governing restitution in juvenile cases and lacked authority to order any amount of restitution over $250. We affirm.

Full Text

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Brian L. Zieglmeier

Case No.: 2016AP1815-CR

Officials: Hruz, J.

Focus: Motion to Suppress

Brian Zieglmeier appeals a judgment of conviction for third-offense operating a motor vehicle while intoxicated (OWI). He argues the circuit court erred in denying his motion to suppress evidence obtained as the result of an extension of a traffic stop. We disagree, concluding law enforcement had reasonable suspicion to extend the traffic stop in order to perform field sobriety tests, such that Zieglmeier’s constitutional rights were not violated. Accordingly, we affirm.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. K.C.

Case No.: 2017AP32

Officials: Brennan, J.

Focus: Termination of Parental Rights

K.C. appeals from an order terminating her parental rights to J.F.C. She asks this court to vacate the order and remand the matter for a new fact-finding hearing. She argues that the trial court erroneously exercised its discretion when, as a sanction, it struck her contest posture and defaulted her at the grounds-phase of the trial. She further argues that WIS. STAT. § 48.235 (2015-16)2 , the statute governing the appointment of a guardian ad litem in a TPR proceeding, requires a trial court to obtain a competency evaluation prior to such an appointment, and no evaluation was ordered here. Finally, she claims her first adversary counsel asked the trial court to appoint a guardian ad litem for her without her consent, which deprived her of her right to adversary counsel.

This court concludes that the default sanction was not an erroneous exercise of discretion because a trial court may default a party for egregious conduct, and the record here supports the trial court’s finding of egregiousness. We also conclude that WIS. STAT. § 48.235(1)(a) clearly authorizes the trial court to appoint a GAL “in any appropriate matter,” which the trial court did here. Finally, this court concludes that K.C. made no showing that the first adversary counsel asked for the appointment of the GAL or that he failed to zealously, competently and independently represent K.C. here as her adversary counsel. For these reasons, the order is affirmed.

Full Text

WI Court of Appeals – District II

Case Name: Robert A. Wilmot v. John McMaster

Case No.: 2016AP865

Officials: Reilly, P.J., Gundrum and Hagedorn, JJ.

Focus: Conflict of Interest – Estate

Attorney Robert A. Wilmot appeals pro se from an order ruling that a conflict of interest makes him unsuitable to act as personal representative (PR) of the estate of the decedent, Ann H. McMaster Dewey. See WIS. STAT. § 856.23(1)(e) (2015-16). We agree and affirm

Full Text

WI Court of Appeals – District II

Case Name: Lowell Bessette v. David Bessette, et al

Case No.: 2016AP1215

Officials: Reilly, P.J., Gundrum and Hagedorn, JJ.

Focus: Breach of Fiduciary Duty – Shareholder Oppression

Lowell Bessette appeals from an order granting summary judgment to David Bessette (Lowell’s son), Debbie Bessette (David’s wife), Jon Rutten (Lowell’s brother-in-law), Mekco Manufacturing, Inc., and Bessette, LLC (hereinafter collectively “respondents”). Lowell, a minority shareholder in Mekco, brought direct claims for: (1) fraud, (2) breach of fiduciary duty, and (3) shareholder oppression pursuant to WIS. STAT. § 180.1430 (2015-16).  The circuit court concluded Lowell failed to allege fraud with sufficient specificity; his breach of fiduciary duty claim failed because the injuries Lowell alleged were direct injuries to Mekco, not Lowell, and thus he needed to bring a derivative action; and “neither dissolution nor other equitable remedies” were appropriate as to Lowell’s oppression claim.  We affirm.

Full Text

WI Court of Appeals – District II

Case Name: Village of Fairwater v. Kelvin L. Greenfield

Case No.: 2016AP2072

Officials: Reilly, P.J.

Focus: Court Error – Motion to Suppress

Kelvin L. Greenfield appeals from a judgment of conviction for operating with a prohibited alcohol concentration (PAC), contrary to WIS. STAT. § 346.63(1)(b). Greenfield contends that the circuit court erred in denying his motion to suppress evidence as the officer lacked reasonable suspicion to extend the traffic stop for field sobriety tests. We affirm.

Full Text

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Kyle Lee Monahan

Case No.: 2014AP2187

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

Focus: Court Error – GPS Data Evidence

Kyle Monahan appeals a judgment of conviction entered upon a jury verdict finding Monahan guilty of homicide by intoxicated use of a motor vehicle. The charge stems from an auto accident where Rebecca Cushman, Monahan’s girlfriend, was thrown from the car in which Cushman and Monahan were riding. Cushman died from her resulting injuries. The sole issue at trial was whether Monahan was driving the motor vehicle at the time of the accident. The sole issue on appeal is whether the circuit court erroneously excluded evidence of GPS data that measured the speed of the car when Cushman purportedly was the driver.

The State concedes on appeal that the circuit court erred in excluding the challenged GPS data as “other acts” evidence, and the State does not provide an alternative basis for us to affirm the court’s evidentiary ruling. We do not weigh in on whether the court erroneously excluded the GPS data. However, for purposes of this appeal, we accept the State’s concession. Having accepted the State’s concession that the court erred in excluding the GPS data, our inquiry turns to whether the court’s error was harmless. For the reasons we explain below, we conclude that the court’s error constituted harmless error.

The State cross-appeals the circuit court’s order vacating the $250 DNA surcharge the court imposed on Monahan at sentencing, pursuant to WIS. STAT. § 973.046(1r)(a) (2015-16). The issue on the cross-appeal is whether imposition of the mandatory $250 DNA surcharge violates the ex post facto clauses of the United States and Wisconsin Constitutions, and therefore, whether the statute is unconstitutional as applied to Monahan. Our supreme court in State v. Scruggs, 2017 WI 15, 373 Wis. 2d 312, 891 N.W.2d 786, considered the same issue presented in this case, and concluded there that the statute does not violate

the ex post facto clauses on the ground that the defendant failed to establish that the statute was punitive in intent or effect. Our decision in this case is guided by the court’s decision in Scruggs, and therefore, as in Scruggs, we reject Monahan’s contention that § 973.046(1r)(a) is unconstitutional as applied to him. Accordingly, we affirm in part and reverse in part and remand with directions.

Full Text

WI Court of Appeals – District IV

Case Name: Jolene Zabler, et al v. Kevin J. Weber, et al

Case No.: 2015AP1187

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

Focus: Court Error – Jury Instructions – Witness Evidence

Dr. Kevin Weber and his insurer Proassurance Casualty Company (collectively, Proassurance Casualty), appeal a money judgment in favor of Jolene Zabler and Jolene’s father, Gary Zabler. Proassurance Casualty contends that the circuit court erred by: (1) failing to properly instruct the jury; (2) permitting the Zablers’ expert witness to testify regarding the witness’s examination of Jolene the day before the witness testified; (3) denying Proassurance Casualty’s motion for a new trial based on its assertion that the jury’s verdict was contrary to the great weight of the evidence; (4) permitting the Zablers’ expert witness to testify as to Jolene’s future medical expenses; and (5) denying its motion for judgment notwithstanding the jury’s verdict on the Zablers’ informed consent claim. For the reasons discussed below, we affirm.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. George D. Taylor

Case No.: 2015AP1325-CR

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

Focus: Ineffective Assistance of Counsel – Court Error

George Taylor appeals a judgment of conviction for felony murder following a jury trial at which the State presented evidence that Taylor, together with Steven Hopgood and Laquan Riley, participated in an armed robbery that resulted in the fatal shooting of Vincent Cort. 1 Taylor asks that we remand to the circuit court for a new trial. In the alternative, Taylor requests remand for an evidentiary hearing to address issues raised in his motion for post-conviction relief Taylor argues that a new trial is required because: (1) the State failed to disclose three categories of material, exculpatory evidence in time for his use at trial, in violation of the constitutional principles described in Brady v. Maryland, 373 U.S. 83, 87 (1963); (2) the circuit court erroneously exercised its discretion in denying a mistrial motion based on improper statements by a prosecutor; (3) the circuit court unconstitutionally truncated his right to confront a witness; (4) the circuit court violated his due process rights by not trying Taylor separately from his codefendants; (5) his trial counsel provided ineffective assistance in multiple ways and the circuit court should have granted a Machner2 hearing on these claims; and (6) the interest of justice requires it. In addition, Taylor argues that resentencing is required because the sentencing court relied on inaccurate information. We reject each of Taylor’s arguments except one, his argument that he is entitled to a Machner hearing on his claim that his trial counsel provided

ineffective assistance in failing to call a witness at trial who could have directly impeached testimony of the State’s main witness at trial, Paris Saffold, that Taylor drove a white BMW as the getaway car for alleged shooter Riley. We therefore affirm in part, reverse in part, and remand for further proceedings, namely, a Machner hearing.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Laquan Jay Riley

Case No.: 2015AP2125-CR

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

Focus: Court Error – Ineffective Assistance of Counsel

Laquan Riley appeals a judgment of conviction for second-degree reckless homicide with a dangerous weapon, attempted armed robbery, and felon in possession of a firearm following a jury trial at which the State presented evidence that Riley, together with Steven Hopgood and George Taylor, participated in an armed robbery in which Riley fatally shot Vincent Cort. Riley argues that a new trial is required because the circuit court erroneously exercised its discretion in denying mistrial motions based on two sets of improper statements by a prosecutor. Separately, although Riley’s request for relief is unclear, he suggests that his trial counsel provided ineffective assistance in failing to request that the jury be instructed on the lesser included offense of felony murder, because if he had been convicted of felony murder instead of second degree reckless homicide and attempted armed robbery, his maximum sentence would have been lower. We reject Riley’s mistrial-related arguments for reasons that we have already explained in a separate opinion and conclude that Riley’s ineffective assistance argument is undeveloped. Accordingly, we affirm.

Full Text

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Julieann Baehni

Case No.: 2015AP2263-CR

Officials: Sherman, J.

Focus: OWI – Implied Consent – Blood Test

Julieann Baehni appeals from a judgment of conviction for third offense operating a motor vehicle while intoxicated (OWI). Baehni argues that the circuit court erred in denying her motion to suppress the results of her blood test because the implied consent law was violated when she was not provided an alternative test. Baehni also argues that the court erred in denying her collateral challenges to two underlying OWI convictions. For the reasons stated below, I affirm

Full Text

WI Court of Appeals – District IV

Case Name: Mark McNally v. Capital Cartage, Inc.

Case No.: 2015AP2627

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

Focus: Contractual Dispute – Real Estate – Substantial Variance

This case addresses whether an offer to purchase, procured by a real estate broker, contains substantial variances from the seller’s terms in the listing contract between the broker and the seller. This “substantial variances” issue affects whether the broker is entitled to a commission, even though the seller rejected the offer. The listing contract here, between the broker and the seller, was a standard form in statewide use. The form provides, in pertinent part: “Seller shall pay Broker’s commission, which shall be earned if, during the term of this Listing: … [a]n offer to purchase is procured for the Business … on substantially the terms set forth in this Listing ….” There is no dispute that the phrase “on substantially the terms” means that the broker must procure an offer that does not have a “substantial variance” from the terms in the listing contract. Accordingly, in this opinion we generally use “substantial variance” language, rather than the more cumbersome phrase “on substantially the terms.” We are asked to decide whether three terms in the offer at issue here are, as a matter of law, substantial variances from the listing contract. We conclude that this question is resolved by the holding in Libowitz v. Lake Nursing Home, Inc., 35 Wis. 2d 74, 150 N.W.2d 439 (1967), that a substantial variance in this context is limited to variances in offers that directly conflict with express terms in the corresponding listing contract. Our reading of Libowitz supports the circuit court’s rulings and, therefore, we affirm.

Full Text

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Noah M. Sanders

Case No.: 2016AP2387-CR

Officials: Blanchard, J.

Focus: Court Error – Plea Withdrawal

Noah Sanders appeals a judgment convicting him of four misdemeanors: two counts of intimidation of a victim and two counts of contact with the same victim after a domestic abuse arrest. The judgment was entered after the circuit court accepted Sanders’ guilty pleas to these charges, together with other charges in other cases, at a single hearing. Sanders also appeals the order denying his post-conviction request to withdraw the two pleas to intimidation of a victim, on the ground that the circuit court erred in determining that there was a sufficient factual basis to support these two pleas. I conclude that the court properly exercised its discretion in denying the post-conviction motion and accordingly affirm that decision and the judgment of conviction

Full Text

WI Court of Appeals – District IV

Case Name: Karen Renee Perik v. Jacob D. Kallies

Case No.: 2017AP63-FT

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

Focus: Divorce – Child Placement

Karen Perik appeals an order of the circuit court modifying the shared physical placement of her minor son, E.K., to award primary physical placement to his father, Jacob Kallies. Perik contends that the circuit court erred in determining that primary placement with Kallies was in E.K.’s best interest because the court took into consideration her pre-divorce extramarital affair. For the reasons discussed below, we reverse the order and remand for further proceedings consistent with this opinion

Full Text

WI Supreme Court Digests

WI Supreme Court

Case Name: State of Wisconsin v. Sambath Pal

Case No.: 2017 WI 44

Focus: Sentencing

On April 20, 2014, Pal was involved in a traffic accident when his sport utility vehicle (“SUV”) collided with a group of motorcyclists on a highway; two motorcyclists died from the injuries they sustained in the crash. Pal fled the accident scene, but was apprehended by the police a few days later. He eventually pleaded guilty to two counts of hit and run resulting in death, in violation of Wis. Stat. § 346.67(1) (2013-14).2 The circuit court sentenced Pal to ten years of initial confinement and ten years of extended supervision for each count, with the term of imprisonment for the first count to be served consecutive to the term of imprisonment for the second count.

Before this court, Pal raises two challenges to his sentence. First, Pal argues that he was unconstitutionally punished for two counts of hit and run resulting in death even though he only committed a single offense, his flight from the scene. This is a multiplicity claim implicating double jeopardy and due process protections guaranteed by the state and federal constitutions. Second, Pal argues that the circuit court erroneously exercised its discretion at sentencing by imposing an unduly harsh sentence. Both the circuit court and the court of appeals rejected these arguments.

We conclude that Pal committed two offenses, not one, when he fled from the scene of his accident, and that the legislature authorized punishment for each offense. It was therefore not unconstitutional for the circuit court to accept guilty pleas and sentence Pal for both counts of hit and run resulting in death. We further conclude that the circuit court did not impose an unduly harsh sentence. Accordingly, we affirm the decision of the court of appeals

Affirm

Concur: Roggensack, Bradley, Kelly, Abrahamson

Dissent:

Full Text

WI Supreme Court

Case Name: State of Wisconsin v. Jack M. Suriano

Case No.: 2017 WI 42

Focus: Amicus Brief Filed

An amicus curiae brief was filed by Kelli S. Thompson, state public defender and Joseph N. Ehmann, regional attorney manager, Wisconsin State Public Defender. Oral argument by Joseph N. Ehmann.

Concur:

Dissent: Abrahamson, Bradley

Full Text

WI Supreme Court

Case Name: Maya Elaine Smith v. Jeff Anderson v. 4th Dimension Design, Inc.

Case No.: 2017 WI 43

Focus: Third Party Plaintiff – Duty to Defend

The petition for review asked the court to decide: (1) whether a third-party complaint may state a claim for which an insurance company has a duty to defend when the third-party plaintiff was sued for misrepresentation by the first-party plaintiff; (2) whether a third-party defendant may supplement the third-party complaint with additional facts when the third party defendant seeks a defense from its insurance company; and (3) whether summary judgment denying a claim for defense conclusively concludes the duty to defend question, notwithstanding subsequent developments in the lawsuit.

The circuit court granted summary judgment to West Bend Mutual Insurance Company.2 The circuit court concluded that there was no initial grant of coverage and also, if there were an initial grant of coverage, the policy exclusions prevented coverage for the claims for which R&B Construction sought defense. Therefore, West Bend Mutual had no duty to defend. The circuit court dismissed West Bend Mutual from the lawsuit and R&B appealed.

Petition Dismissed

Concur: Roggensack

Dissent: Abrahamson, Bradley

Full Text

US Supreme Court Digests

US Supreme Court

Case Name: Coventry Health Care of Missouri, Inc. v. Nevils

Case No.: 16-149

Focus: Subrogation – Reimbursement

Because contractual subrogation and reimbursement prescriptions plainly “relate to . . . payments with respect to benefits,” §8902(m)(1), they override state laws barring subrogation and reimbursement.

“This reading best comports with §8902(m)(1)’s text, context, and purpose. Contractual provisions for subrogation and reimbursement “relate to . . . payments with respect to benefits” because subrogation and reimbursement rights yield just such payments. When a carrier exercises its right to either reimbursement or subrogation, it receives from either the beneficiary or a third party “payment” respecting the benefits the carrier had previously paid. The carrier’s very provision of benefits triggers the right to payment. Congress’ use of the expansive phrase “relate to,” which “express[es] a broad pre-emptive purpose,” Morales v. Trans World Airlines, Inc., 504 U. S. 374, 383, weighs against Nevils’ effort to narrow the term “payments” to exclude payments that occur “long after” a carrier’s provision of benefits. Nevils’ argument that Congress intended to preempt only state coverage requirements, e.g., inclusion of acupuncture and chiropractic services, also miscarries. The statutory context and purpose reinforce this conclusion. FEHBA concerns “benefits from a federal health insurance plan for federal employees that arise from a federal law.” Bell v. Blue Cross & Blue Shield of Okla., 823 F. 3d 1198, 1202. Strong and “distinctly federal interests are involved,” Empire HealthChoice Assurance, Inc. v. McVeigh, 547 U. S. 677, 696, in uniform administration of the program, free from state interference, particularly in regard to coverage, benefits, and payments. The Federal Government also has a significant financial stake in subrogation and reimbursement”

Reversed and Remanded

Concur: Thomas

Dissent:

Full Text

US Supreme Court

Case Name: Goodyear Tire & Rubber Co., v. Haeger, et al

Case No.: 15-1406

Focus: Bad Faith Sanctions – Attorney Fees

When a federal court exercises its inherent authority to sanction bad-faith conduct by ordering a litigant to pay the other side’s legal fees, the award is limited to the fees the innocent party incurred solely because of the misconduct—or put another way, to the fees that party would not have incurred but for the bad faith

“Federal courts possess certain inherent powers, including “the ability to fashion an appropriate sanction for conduct which abuses the judicial process.” Chambers v. NASCO, Inc., 501 U. S. 32, 44–45. One permissible sanction is an assessment of attorney’s fees against a party that acts in bad faith. Such a sanction must be compensatory, rather than punitive, when imposed pursuant to civil procedures. See Mine Workers v. Bagwell, 512 U. S. 821, 826–830. A sanction counts as compensatory only if it is “calibrate[d] to [the] damages caused by” the bad-faith acts on which it is based. Id., at 834. Hence the need for a court to establish a causal link between the litigant’s misbehavior and legal fees paid by the opposing party. That kind of causal connection is appropriately framed as a but-for test, meaning a court may award only those fees that the innocent party would not have incurred in the absence of litigation misconduct. That standard generally demands that a district court assess and allocate specific litigation expenses—yet still allows it to exercise discretion and judgment. Fox v. Vice, 563 U. S. 826, 836. And in exceptional cases, that standard allows a court to avoid segregating individual expense items by shifting all of a party’s fees, from either the start or some midpoint of a suit.”

Reversed and Remanded

Concur:

Dissent:

Full Text

US Supreme Court

Case Name: Manrique v. United States

Case No.: 15-7250

Focus: Deferred Restitution

A defendant wishing to appeal an order imposing restitution in a deferred restitution case must file a notice of appeal from that order. If he fails to do so and the Government objects, he may not challenge the restitution order on appeal.

“Both 18 U. S. C. §3742(a), which governs criminal appeals, and Federal Rule of Appellate Procedure 3(a)(1) contemplate that a defendant will file a notice of appeal after the district court has decided the issue sought to be appealed. Here, petitioner filed only one notice of appeal, which preceded by many months the sentence and judgment imposing restitution. He therefore failed to properly appeal the amended judgment. Whether or not the requirement that a defendant file a timely notice of appeal from an amended judgment imposing restitution is a jurisdictional prerequisite, it is at least a mandatory claim-processing rule, which is “unalterable” if raised properly by the party asserting a violation of the rule. Eberhart v. United States, 546 U. S. 12, 15. Because the Government timely raised the issue, “the court’s duty to dismiss the appeal was mandatory.””

Affirmed

Concur:

Dissent: Ginsburg, Sotomayor

Full Text

US Supreme Court

Case Name: Nelson v. Colorado

Case No.: 15-1256

Focus: Exoneration Act – 14th Amendment

The Exoneration Act’s scheme does not comport with the Fourteenth Amendment’s guarantee of due process

“The procedural due process inspection required by Mathews v. Eldridge, 424 U. S. 319, governs these cases. Medina v. California, 505 U. S. 437, controls when state procedural rules that are part of the criminal process are at issue. These cases, in contrast, concern the continuing deprivation of property after a conviction has been reversed or vacated, with no prospect of reprosecution”

Reversed and remanded

Concur: Alito

Dissent: Thomas

Full Text

US Supreme Court

Case Name: Lewis v. Clarke

Case No.: 15-1500

Focus: Indian Law – Sovereign Immunity

In a suit brought against a tribal employee in his individual capacity, the employee, not the tribe, is the real party in interest and the tribe’s sovereign immunity is not implicated

“In the context of lawsuits against state and federal employees or entities, courts look to whether the sovereign is the real party in interest to determine whether sovereign immunity bars the suit, see Hafer v. Melo, 502 U. S. 21, 25. A defendant in an officialcapacity action—where the relief sought is only nominally against the official and in fact is against the official’s office and thus the sovereign itself—may assert sovereign immunity. Kentucky v. Graham, 473 U. S. 159, 167. But an officer in an individual-capacity action which seeks “to impose individual liability upon a government officer for actions taken under color of state law,” Hafer, 502 U. S., at 25— may be able to assert personal immunity defenses but not sovereign immunity, id., at 30–31. The Court does not reach Clarke’s argument that he is entitled to the personal immunity defense of official immunity, which Clarke raised for the first time on appeal.

Concur: Thomas, Ginsburg

Dissent:

Full Text

Polls

Should Steven Avery be granted a new evidentiary hearing?

View Results

Loading ... Loading ...

Legal News

See All Legal News

WLJ People

Sea all WLJ People

Opinion Digests