Weekly Case Digests — October 9-13, 2017

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Carmen Consolino v. Brian Towne, et al.

Case No.: 16-3681

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

Focus: Violation of Title 42 U.S.C.

Carmen Consolino, an employee of the Cook County Sheriff’s Office, sued Sheriff Thomas Dart, Chief of Staff Brian Towne and Compliance Officer Robert Egan for retaliation based on speech, in violation of 42 U.S.C. § 1983. The district court granted summary judgment in favor of the defendants and we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: LaWanda King v. Ford Motor Company

Case No.: 16-3391

Officials: BAUER and EASTERBROOK, Circuit Judges, and DEGUILIO, District Judge.

Focus: FMLA Violation

LaWanda King worked for many years as an assembler in Ford Motor Company’s vehicle assembly plants. After transferring to its Chicago plant in 2010, though, she claims that she was sexually harassed by a supervisor, after which she began getting reassigned to less desirable tasks, missing out on overtime, and receiving unwarranted discipline. Ultimately, she was fired in 2013 after missing several weeks of work for medical reasons that Ford claims she didn’t properly document. In this suit, King asserts claims for sexual harassment and FMLA interference, and also asserts that Ford retaliated against her for her complaints of sexual harassment and her taking of FMLA leave. Due to a series of procedural missteps and substantive shortcomings, all of her claims fell at summary judgment. King appeals, and we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Cedric Hayes

Case No.: 16-3752

Officials: BAUER, EASTERBROOK, and HAMILTON, CircuitJudges

Focus:

Cedric Hayes pleaded guilty to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He now challenges his sentence, arguing that the district court erred in applying an enhancement to his base offense level under §2K2.1(b)(4)(B) of the United States Sentencing Commission Guidelines. That section, which applies to offenses involving firearms, states that a four‐level enhancement is appropriate where a firearm’s serial number has been “altered or obliterated.” Hayes also challenges the district court’s calculation of his criminal history category.

Affirmed in part. Remanded in part.

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7^th Circuit Court of Appeals

Case Name: Michael Platt v. Dorothy Brown, et al.

Case No.: 17-1830

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

Focus: Violation of the Illinois Constitution Uniformity Clause

Appellant Michael Platt, individually and on behalf of a putative class, challenges Illinois’s imposition of a mandatory 1% bail bond processing fee pursuant to 725 Ill. Comp. Stat. § 5/110-7. He argues this fee violates his and similarly situated plaintiffs’ due process and equal protection rights under the United States and Illinois Constitutions. Appellant also alleges this practice violates the uniformity clause of the Illinois Constitution and constitutes unjust enrichment under Illinois common law. The district court dismissed his complaint for failure to state a claim. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Jorge Baez-Sanchez v. Jefferson B. Sessions, III, Attorney General of the United States

Case No.: 16-3784

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

Focus: immigration Law – Alien’s Inadmissibility

This proceeding begins where L.D.G. v. Holder, 744 F.3d 1022 (7th Cir. 2014), ends. We held in LDG that the Attorney General has authority un‐ der 8 U.S.C. §1182(d)(3)(A)(ii) to waive an alien’s inadmissibility—and thus to halt removal temporarily—while the alien requests a U visa from the Department of Homeland Security. After Jorge Baez‐Sanchez requested that relief from an immigration judge, however, the Board of Immigration Appeals held that IJs lack authority to grant such requests.

The remaining contention—that the power to grant a waiver of inadmissibility may be exercised only in favor of an alien who has yet to enter the United States—was at least hinted at by the Board. But the BIA did not rest its decision on this ground. Immigration law has historically applied at least some rules about “admissibility” to aliens already in the United States, see In re Menendez, 12 I&N Dec. 291, 292 (1967); In re Sanchez Sosa, 25 I&N Dec. 807 (2012), and the Secretary of Homeland Security seems to believe that he has the authority to grant waivers of inadmissibility under §1182(d)(3)(A)(ii) to aliens in the United States. See 8 C.F.R. §212.17. If the Secretary can do this, why not the Attorney General? Perhaps neither official can do so, but Chenery prevents us from pursuing that question.

It should be clear from what we have said that the par‐ ties’ arguments about the effects of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), and Auer v. Robbins, 519 U.S. 452 (1997), are premature. First the Board must address and resolve the essential issues; only then can we consider whether the disposition lies within the scope of the agency’s discretion

Vacated and Remanded

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7^th Circuit Court of Appeals

Case Name: Tabitha Tripp, et al., v. Charles W. Scholz, et al.,

Case No.: 16-3469

Officials: FLAUM, BAUER, and SYKES, Circuit Judges

Focus: First and Fourteenth Amendment Violations – Illinois Election Code

Following Tripp and Shepherd’s ballot disqualification, plaintiffs filed suit in federal court, arguing that Illinois’s new party ballot restrictions violated the First and Fourteenth Amendments of the United States Constitution, both facially and as applied to the 118th and 115th districts. Following cross‐motions by both parties, the United States District Court for the Southern District of Illinois granted summary judgment in favor of defendants. Plaintiffs now appeal the district court’s ruling. For the reasons stated below, we affirm.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Jeffrey S. Roeshling

Case No.: 2016AP35-CR

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

Focus: Postconviction Motion Denied – Machner Hearing

Jeffrey Roehling appeals a judgment convicting him of one count of felony intimidation of a witness and an order denying his motion for postconviction relief. Roehling argues the circuit court erred by denying his request to conduct a Machner hearing. We conclude Roehling’s postconviction motion presented sufficient nonconclusory factual allegations that, if proven, would establish Roehling is entitled to relief. Therefore, we reverse the order and remand to the circuit court with directions to conduct a Machner hearing.

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WI Court of Appeals – District I

Case Name: State of Wisconsin V. Derrell R. Pickett

Case No.: 2016AP384-CR

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

Focus: Postconviction Motion Denied and Ineffective Assistance of Counsel

Derrell R. Pickett, pro se, appeals from a judgment of conviction, entered upon a jury’s verdict, on one count of possession with intent to deliver more than forty grams of cocaine as party to a crime as a second or subsequent offense. Pickett also appeals from an order denying his motions for postconviction discovery and relief. Pickett makes multiple claims of error that he believes warrant reversal of his conviction and dismissal of the charge against him. We reject Pickett’s arguments and affirm the judgment and order.

On appeal, Pickett raises what we perceive to be seven claims of error that he believes warrant reversal of his conviction and dismissal of the charge: (1) he should have been given a Franks/Mann hearing; (2) photos of his impounded money were improperly used at trial; (3) the defective DVD recording constitutes a discovery violation and he should have been granted postconviction discovery to obtain another copy; (4) the circuit court erred in concluding his newly discovered evidence did not warrant relief; (5) the prosecutor committed misconduct; (6) his trial attorney was ineffective; and (7) the interests of justice require it. We address each of these claims in turn.

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WI Court of Appeals – District III

Case Name: Brianna Kopp, et al.,v. School District of Crivitz, et al.

Case No.: 2016AP945

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

Focus: Spoliation of Evidence Doctrine

Brianna Kopp, Victoria Neuman, and Jennifer Kempka (collectively, the “Plaintiffs”) appeal an order dismissing their claims against the School District of Crivitz and its insurer (together, the “District”), Michael and Kam Dama (together, the “Damas”), and their daughter, Sophia Dama (collectively with the Damas and the District, the “Defendants”). The claims at issue arose out of the Plaintiffs’ use of a cell phone in a locker room prior to a high school basketball game to photograph and make a video recording involving Sophia. Based on the Defendants’ responses to this incident, the Plaintiffs asserted claims for breach of contract, breach of the duty of good faith and fair dealing, defamation, negligence, civil conspiracy, and intentional infliction of emotional distress, all of which the circuit court dismissed on summary judgment.

The Plaintiffs first assert the circuit court erred by dismissing Sophia as a party. We conclude the Plaintiffs’ appeal on this issue is untimely. Next, we conclude the court properly granted summary judgment to the Defendants on all of the Plaintiffs’ claims, as there are no genuine issues of material fact and the Defendants are entitled to judgment as a matter of law. Finally, the Plaintiffs assert their claims should survive based on the spoliation of evidence doctrine, because Kam Dama deleted an allegedly defamatory Facebook post and a police officer ordered the deletion of a cell phone video of the incident. We conclude the circuit court properly exercised its discretion in declining to apply the spoliation doctrine. Consequently, we affirm in all respects.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Daniel A. Peace

Case No.: 2016AP1105-CR

Officials: Kessler, Brash and Dugan, JJ.

Focus: Abuse of Discretion

Daniel A. Peace appeals the judgment convicting him of sexual assault of a child under the age of thirteen and of repeated sexual assault of a child. See WIS. STAT. §§ 948.02(1), 948.025(1)(a) (2003-04, 2005- 06). He also appeals the order denying his postconviction motion. Because the trial court properly exercised its discretion in admitting other acts evidence and because Peace has not established that defense counsel was ineffective, we affirm.

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WI Court of Appeals – District III

Case Name: Helmer E. Hanson Living Trust (Randi L. Osberg, Trustee) v. Steven D. Hanson, et al.

Case No.: 2016AP1448

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

Focus: Doctrines of Claim Preclusion, Issue Preclusion, and Laches

Steven Hanson, pro se, appeals from a judgment foreclosing a mortgage on property owned by Hanson Management, Inc. On appeal, Hanson raises a number of arguments directed at challenging the validity of the underlying mortgage. We conclude these arguments constitute an improper attempt to collaterally attack the mortgage, and we therefore decline to consider them. We reject on the merits Hanson’s argument that he is entitled to a homestead exemption with respect to approximately twenty acres of the mortgaged property. We therefore affirm in part.

Hanson also argues on appeal that the circuit court erred by concluding his counterclaims against the mortgagee, the Helmer E. Hanson Living Trust (“the Trust”), and his third-party claims against the trustee, individually, were barred by the doctrines of claim preclusion, issue preclusion, and laches. We agree with Hanson that the circuit court erred by concluding claim preclusion and issue preclusion barred his counterclaims and third-party claims regarding the Trust’s rejection of certain offers to purchase a portion of the mortgaged property. We further conclude the record is insufficient for us to determine, as a matter of law, whether the doctrine of laches bars those claims. We therefore reverse the circuit court’s dismissal of Hanson’s counterclaims and third-party claims regarding the Trust’s rejection of the offers to purchase. We remand for the circuit court to determine if the doctrine of laches bars those claims, and, if not, for further proceedings on those claims.

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WI Court of Appeals – District III

Case Name: Ethan M. Hilbert v. Wisconsin County Mutual Ins. Corp, et al.

Case No.: 2016AP1571

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

Focus: Governmental Immunity – Personal Injury Claim

Ethan Hilbert appeals a summary judgment dismissing his personal injury claim against Dunn County and its insurer on the grounds of governmental immunity. Hilbert argues the ministerial duty and known and compelling danger exceptions to immunity apply in this case. We reject his arguments and affirm.

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WI Court of Appeals – District III

Case Name: Ross A. Schmelzer v. Kewaukee County

Case No.: 2016AP1633

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

Focus: Wisconsin’s Governmental Immunity Statue

Kewaunee County appeals a nonfinal order denying its motion for summary judgment seeking the dismissal of Ross Schmelzer’s personal injury action. The County asserts it is immune from liability under WIS. STAT. § 893.80(4) (2015-16), Wisconsin’s governmental immunity statute.  We agree. Therefore, we reverse the order and remand the matter with directions.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Georgette C. Martinez

Case No.: 2016AP1990-CR; 2016AP1991-CR

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

Focus: Ineffective Assistance of Counsel

Georgette Martinez appeals judgments convicting her of delivering heroin and an order denying her postconviction motion, in which she alleged ineffective assistance of trial counsel. Martinez contends: (1) her attorney was ineffective because he misplaced a written statement Martinez intended to read at the sentencing hearing, thereby requiring her to speak extemporaneously, compromising her right of allocution; and (2) counsel failed to withdraw after Martinez allegedly notified him that she wanted to hire a different attorney for the sentencing hearing, violating her right to an attorney of her choosing. We reject these arguments and affirm the judgments and order.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Michael J. Mansfield

Case No.: 2016AP2423-CR

Officials: STARK, P.J.

Focus: Motion to Suppress Evidence Denied

Michael Mansfield appeals a judgment convicting him of third-offense operating a motor vehicle while intoxicated (OWI). He challenges the circuit court’s denial of his suppression motions on three grounds: (1) law enforcement lacked reasonable suspicion to perform a traffic stop; (2) after Mansfield was stopped, law enforcement lacked reasonable suspicion to frisk him for weapons; and (3) Wisconsin’s implied consent statute is inherently coercive, thereby rendering his consent to a blood draw involuntary and the implied consent statute facially unconstitutional. We reject Mansfield’s arguments and affirm.

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WI Court of Appeals – District II

Case Name: Michael Engelhardt, et al., v. City of New Berlin, et al.

Case No.: 2016AP801

Officials: GUNDRUM, J.

Focus: Sovereign Immunity

This case involves the very tragic loss of life of an eight-year-old girl at a local swimming pool during a summer outing with the New Berlin Parks and Recreation Department. The issue we are called upon to decide is whether the City of New Berlin and its recreation department (collectively “New Berlin”) are immune from suit pursuant to WIS. STAT. § 893.80(4) (2015- 16).  We conclude they are.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Jerry Harden

Case No.: 2016AP1053

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

Focus: Motion for Evidentiary Hearing Denied

Jerry Harden appeals pro se from a circuit court order denying his WIS. STAT. § 974.06 (2015-16) motion without a hearing. We affirm on two grounds: (1) Harden’s § 974.06 motion was an attempt to relitigate matters previously addressed by the circuit court and by this court on appeal and (2) the motion does not otherwise establish that Harden was entitled to relief.

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WI Court of Appeals – District II

Case Name: Arthur D. Dyer v. Gary W. Thompson, et al.

Case No.: 2016AP1103

Officials: Neubauer, C.J., Gundrum and Hagedorn, JJ.

Focus: Judgment Awards

Arthur D. Dyer appeals a judgment awarding Thompson Law Offices, S.C., the monetary amount of $27,264.99 and immediate possession of two of Dyer’s vehicles to account for legal services rendered under a fee agreement, and dismissing Dyer’s action for declaratory judgment against Thompson Law Offices and Attorney Gary W. Thompson. We conclude that the circuit court properly (1) dismissed Dyer’s claim against Thompson as an individual, and (2) granted summary judgment in favor of Thompson Law Offices and against Dyer. We affirm

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Roland Garza, Jr.,

Case No.: 2016AP1794-CR; 2016AP1795-cR

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

Focus: Postconviction Motion Denied

In these consolidated cases, Roland Garza, Jr., appeals from judgments of conviction and an order denying his postconviction motion. He contends that he is entitled to either plea withdrawal or sentence modification. We disagree and affirm.

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WI Court of Appeals – District II

Case Name: Casey Kobyylinski v. Joseph Ross

Case No.: 2017AP358

Officials: NEUBAUER, C.J.

Focus: Abuse of Discretion

Joseph Ross appeals pro se from an order denying his motion to reopen a judgment of eviction. Ross asserted, among other things, that the circuit court lacked jurisdiction and that default judgment was entered against him without proper notice. Because the court did not erroneously exercise its discretion in denying the motion, we affirm.

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WI Court of Appeals – District I

Case Name: Securant Bank & Trust v. Outer Limits Investments, LLC

Case No.: 2016AP1528

Officials: Sherman, Blanchard, and Kloppenburg, JJ

Focus: Foreclosure

Securant Bank & Trust filed an action naming multiple individuals and entities seeking multiple money judgments and foreclosure on multiple properties. The circuit court granted summary judgment in favor of Securant. Only Bulldog Enterprises, LLC, appeals. We affirm for the following reasons.

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WI Court of Appeals – District IV

Case Name: Michael S. Eisenga v. Clare A. Eisenga

Case No.: 2016AP1946

Officials: Sherman, Blanchard, and Kloppenburg, JJ

Focus: Equal Protection Claim and Jurisdiction

Michael Eisenga appeals an order dismissing his post-divorce motion to modify child placement and a subsequent order denying his motion for reconsideration of the dismissal. However, after Michael filed a notice of appeal, we issued an order in which we concluded that Michael’s appeal of the original order was untimely and, therefore, that we lack jurisdiction to review that order. Noting that our jurisdiction over a motion for reconsideration is limited to review of issues that were not decided in a circuit court’s original decision, we instructed the parties to address in their appellate briefing the threshold jurisdictional issue. We conclude that we have jurisdiction over only one issue that Michael raises on appeal, an equal protection claim, and we reject his equal protection argument. Accordingly, we affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Dustin M. Sherman

Case No.: 2016AP2225

Officials: LUNDSTEN, P.J.

Focus: Sufficiency of Evidence – Probable Cause

Dustin Sherman appeals the circuit court’s judgment finding that Sherman unlawfully refused to submit to a chemical test of his blood. Sherman argues that police lacked reasonable suspicion or probable cause to conduct the traffic stop that led to this refusal. I disagree and affirm.

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WI Court of Appeals – District IV

Case Name: James Edward Grant v. Debra Barth

Case No.: 2017AP201

Officials: LUNDSTEN, P.J.

Focus: Demand for Trial Denied

James Edward Grant, pro se in this small claims action, appeals the circuit court’s order denying Grant’s demand for a trial to the court and effectively dismissing the action. For the following reasons, I affirm.

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WI Court of Appeals – District IV

Case Name: M.R.B. v. S.S.

Case No.: 2017AP1217; 2017AP1218; 2017AP1219

Officials: LUNDSTEN, P.J.

Focus: Termination of Parental Rights

S.S. appeals the circuit court’s orders terminating his parental rights to his children A.S., A.S., and A.S. S.S. argues that the circuit court lost competency to proceed by failing to hold a dispositional hearing within the statutorily required time lines; that the court erred in denying S.S. a continuance to obtain counsel and participate meaningfully in the dispositional phase of the proceedings; and that the court erroneously exercised its discretion when making the decision to terminate S.S.’s parental rights. For the reasons that follow, I affirm.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Office of Lawyer Regulation v. Robert J. Baratki

Case No.: 2017 WI 89

Focus: Lawyer Disciplinary Proceedings

We review Referee James J. Winiarski’s recommendation that the court declare Attorney Robert J. Baratki in default and suspend his Wisconsin law license for a period of 60 days for his misconduct in two client matters, his appearance in numerous client matters while his license to practice law was suspended, and his non-cooperation with the Office of Lawyer Regulation’s (OLR) investigation into his conduct. The referee also recommended that Attorney Baratki be required to make restitution to a former client in the amount of $487.50, and to pay the full costs of this proceeding, which total $1,428.93 as of June 13, 2017.

Because no appeal has been filed, we review the referee’s report pursuant to Supreme Court Rule (SCR) 22.17(2). After conducting our independent review of the matter, we agree with the referee that, based on Attorney Baratki’s failure to answer the complaint filed by the OLR, the OLR is entitled to a default judgment. However, we disagree with the referee that Attorney Baratki’s professional misconduct warrants only a 60- day suspension. We conclude, instead, that a six-month suspension is warranted. We agree with the referee that Attorney Baratki should be ordered to pay the full costs of the proceeding, as well $487.50 in restitution.

Ordered

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