Weekly Case Digests — Dec. 26-Dec. 29, 2017

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: West Side Salvage, Inc., v. RSUI Indemnity Company

Case No.: 16-3928

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

Focus: Insurance – Breach of Duty Claim

In 2014, we held that West Side Salvage, Inc. was solely liable for the injuries that three workers suffered in a grain bin explosion. We also held that West Side was liable for $3 million in property damage to the bin, which was owned by ConAgra Foods, Inc. West Side had an $11 million excess insurance policy with RSUI Indemnity Company. West Side sued RSUI, alleging that RSUI breached its duty to settle ConAgra’s property damage claim. The district court granted summary judgment to RSUI. West Side appeals. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Kenneth E. Nelson v. Bruce R. Schultz, etc.

Case No.: 17-2092

Officials: WOOD, Chief Judge, and MANION and KANNE, Circuit Judges.

Focus: Court Error – Abuse of Discretion

Kenneth Nelson sued two former business partners, Bruce Schultz and Jon Rodgers, for breach of con‐ tract and several torts. During discovery Schultz and Rodgers asked Nelson to produce various bank statements and tax re‐ turns, which, the defendants said, they needed to defend against his claims. After Nelson refused, the district court granted the defendants’ motion to compel their production and warned him, twice, that it would dismiss the case if he did not produce the documents or provide an affidavit documenting a diligent search for them. Nelson did neither, and the judge dismissed the case for want of prosecution. On appeal Nelson argues that the district judge erred by not assessing whether his misconduct justified dismissing the case. Because the judge sufficiently evaluated this matter and did not abuse his discretion by dismissing the suit after multiple warnings, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Elizabeth Sebesta. v. Andrea Davis

Case No.: 16-1355

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

Focus: Due Process Violation and Invasion of Privacy

In September 2010, a hospital social worker harbored concerns about Elizabeth Sebesta’s ability to care properly for her newborn daughter. The social worker contacted the Illinois Department of Children and Family Services (“DCFS”), which conducted an investigation. Although DCFS employees pressured Sebesta to accept certain at-home services, they never removed Sebesta’s daughter from her custody. We conclude, as the district court did, that neither the hospital worker nor the DCFS employees stepped over any constitutional line. They reasonably dealt with a sensitive situation in which they had to decide what would serve the child’s best interest. Believing that she had been wronged by these interferences with her parental rights, Sebesta brought this suit under 42 U.S.C. § 1983 and state common law in 2012 against Davis and the Board of Trustees of the University of Illinois (the University defendants), as well as Childs and Bean (the DCFS defendants). She primarily accused the defendants of violating her federal substantive due process right to familial integrity, by their acts of reporting, investigating, and “indicating” her. She also raised supplemental Illinois tort claims for invasion of privacy and intentional infliction of emotional distress. We affirm the district court’s grant of summary judgment in their favor.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Bultasa Buddhist Temple of Chicago, et al.

Case No.: 17-1813

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

Focus: Immigration – Lack of Subject-Matter Jurisdiction

In October 2015, the Bultasa Buddhist Temple of Chicago, Jung Eun Lee, and Soung Youl Cho (collectively, “Appellants”) filed this suit against the Secretary of the Department of Homeland Security, the Attorney General, and the Director of United States Citizenship and Immigration Services (collectively, “Appellees”), seeking review of various actions related to Lee’s and Cho’s immigration status. The district court granted Appellees’ motion to dismiss the complaint for lack of subject matter jurisdiction. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Atlantic Casualty Insurance Company v. Juan Garcia, et al.

Case No.: 17-1224

Officials: BAUER and HAMILTON, Circuit Judges, and DARROW, * District Judge.

Focus: Insurance – Breach of Policies and Bad Faith

Defendants-appellants, Juan and Maria Garcia (“the Garcias”), filed a claim with plaintiff appellee, Atlantic Casualty Insurance Company (“Atlantic”), for insurance coverage. Atlantic responded by seeking declaratory judgment. The Garcias replied with counterclaims for breach of the policies and bad faith for denial of their claim. The district court granted summary judgment in favor of Atlantic. The Garcias now seek reversal.

The Garcias argue that the “Claims in Process” exclusion is ambiguous. In so arguing, the Garcias state that the three parallel conditions following the phrase, “whether known or unknown,” could modify “any loss or claim for damages,” rather than “’bodily injury’ or ‘property damage,’” as the district court found. Accepting the Garcias’ interpretation would exclude coverage for a claim for damages that occurred or was in the process of occurring before inception of the policy. On the other hand, accepting the district court’s interpretation would exclude coverage for any injury or damage that occurred or was in the process of occurring before inception of the policy. We disagree with the Garcias and find the exclusion language unambiguous. Looking at the form of the exclusion, which states, “any loss or claim for damages arising out of or related to ’bodily injury’ or ‘property damage,’ whether known or unknown,” a comma would follow “claim for damages” if the exclusion sought to modify the timing of the claim rather than the damage. This would turn the “’bodily injury’ or ‘property damage’” into a dependent clause. If that were the case, the independent clause would read, “any loss or claim for damages, […] whether known or unknown,” and we would interpret it as the Garcias attempt to do here. With the omission of this comma, the “whether known or unknown” language clearly modifies what precedes it—“’bodily injury’ or ‘property damage.’” For the foregoing reasons, we AFFIRM the district court’s findings.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Robert E. Fox

Case No.: 16-2892

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

Focus: Abuse of Discretion – Motion for Continuance Denied

Robert Fox was convicted of two Hobbs Act robberies. Because he used a firearm to commit the robberies, he was subject to 18 U.S.C. § 924(c)(1)’s mandatory sentencing add-on and was sentenced to 435 months’ imprisonment. On appeal, he principally argues that he is entitled to a new trial because the district court denied him his right to be represented by counsel of his choice. We affirm his conviction. The district court was well within its discretion to deny Fox’s morning-of-trial motion for a continuance when there was no indication Fox was particularly close to retaining new counsel.

Fox also raises three other arguments. He admits that the first two, which challenge parts of his conviction, are foreclosed by controlling precedent. He simply wishes to preserve them for Supreme Court review. But the government concedes that Fox is correct on his final argument, agreeing that he is entitled to resentencing in light of Dean v. United States, 137 S. Ct. 1170 (2017). We agree. Dean permits district courts to take into account the sentencing add-on when fashioning a just sentence for the predicate robberies, so the district court may impose a less severe sentence on remand. Therefore, we vacate Fox’s sentence and remand for resentencing.

Affirmed in part. Vacated and Remanded in part.

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Janelle Tamika Lovell

Case No.: 2016AP718-CR

Officials: Kessler, Brash and Dugan, JJ.

Focus: Sentencing Guidelines

Janelle Tamika Lovell appeals pro se after the circuit court denied a series of postconviction motions, filed in 2016, in which she challenged the sentence imposed in March 2014, requested sentence credit, and sought relief from a mandatory DNA surcharge. We affirm

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WI Court of Appeals – District I

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

Case No.: 2016AP1570-CR

Officials: Kessler, Brash and Dugan, JJ.

Focus: Plea Withdrawal

Nigel J. Smith appeals a judgment of conviction and the portion of a postconviction order that, following a hearing, denied his motion for plea withdrawal. He also appeals the portion of a second postconviction order that denied reconsideration of his plea withdrawal motion. We conclude that the circuit court erred by refusing Smith’s requests to present additional testimony at the postconviction hearing after he improvidently rested his case. We affirm the judgment but we partially reverse the postconviction orders, and we remand for further proceedings.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Kewon Edward Branch

Case No.: 2016AP1618-CR

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

Focus: Sufficiency of Evidence

Kewon Edward Branch appeals from a judgment of conviction, entered upon a jury’s verdict, on one count of maintaining a drug trafficking place as a party to a crime and as a repeater. Branch asserts that there was insufficient evidence to support his conviction. We reject Branch’s argument and affirm the judgment.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Neil R. Hebert

Case No.: 2016AP2168

Officials: HRUZ, J.

Focus: OWI – Suppression Motion Error

The State appeals an order dismissing a citation against Neil Hebert for operating a motor vehicle while intoxicated (OWI), as a first offense, entered after the circuit court had granted Hebert’s motion to suppress evidence. We conclude law enforcement had reasonable suspicion that Hebert was operating his vehicle while intoxicated, which permitted an extension of the initial traffic stop for further investigation of that suspicion. Therefore, Hebert’s constitutional rights were not violated, and the suppression motion was incorrectly granted. We reverse and remand for further proceedings consistent with this opinion.

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WI Court of Appeals – District III

Case Name: Wisconsin Department of Natural Resources v. Timber and Wood Products Located in Sawyer County, et al.

Case No.: 2017AP181

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

Focus: Tax Assessment – Wisconsin Forest Croplands Law

This appeal involves an attempt by the Wisconsin Department of Natural Resources (DNR) to recover taxes that it alleges the Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin (the Tribe) owes under Wisconsin’s Forest Croplands Law, WIS. STAT. §§ 77.01-77.17 (2015-16). The circuit court granted the Tribe’s motion to dismiss, concluding the Tribe’s sovereign immunity barred the DNR’s claims. We agree. We reject the DNR’s argument that the Tribe waived its sovereign immunity. We further conclude that, in addition to barring in personam claims against the Tribe, the Tribe’s sovereign immunity prevents the DNR from bringing an in rem claim pertaining to the timber and wood products located on the Tribe’s property. We therefore affirm the order dismissing the DNR’s claims.

Recommended for Publication

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WI Court of Appeals – District II

Case Name: Midwest Neurosciences Associates, LLC, et al. v. Great Lakes Neurosurgical Associates, LLC, et al.

Case No.: 2016AP601

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

Focus: Operating Agreement – Arbitration Clause

This is a case about who determines whether an arbitration provision applies. Should the question be submitted to arbitration, or should the court decide? The dispute in this litigation arises out of the operating agreement (Operating Agreement) of Midwest Neurosciences Associates, LLC (Midwest). The agreement established a partnership of medical practitioners. Among its terms was a noncompete provision and a clause requiring that any and all disputes be resolved through arbitration. Midwest brought suit against Great Lakes Neurosurgical Associates, LLC (Great Lakes)—one of its former members—and Great Lakes’ President Yashdip Pannu for alleged violations of the noncompete provision. Midwest sought to compel arbitration per the Operating Agreement. The circuit court, however, denied the request and granted Great Lakes’ motion for a declaratory judgment. Midwest appeals and argues that the circuit court should have granted its motion to compel arbitration.

The heart of this dispute is whether the arbitration clause in the Operating Agreement still applies. Great Lakes maintains that the clause was superseded by a subsequent agreement and is therefore inoperative, or alternatively, that this is a question for the court to decide as the circuit court did here. We hold that the question of whether the arbitration clause was superseded should have been submitted to arbitration, and we therefore reverse the circuit court’s order.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Taran Q. Raczka

Case No.: 2016AP1057-CR

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

Focus: Abuse of Discretion – Exclusion of Evidence

On October 27, 2014, Taran Q. Raczka crashed his car into a tree, killing his passenger. Tests showed restricted controlled substances in his blood, and Raczka was charged with homicide by intoxicated use of a vehicle and second-degree reckless homicide. Consistent with the affirmative defense in WIS. STAT. § 940.09(2)(a) (2015-16),  Raczka sought to present evidence that the accident was caused by a seizure and not the presence of controlled substances in his body. The circuit court, however, granted a motion in limine by the State to exclude all evidence relating to this defense. The issue is whether the circuit court erroneously exercised its discretion by excluding the evidence. We conclude it did.

Recommended for Publication

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Darrin K. Taylor

Case No.: 2016AP1956-CR; 2016AP1957-CR

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

Focus: Sufficiency of Evidence

Darrin K. Taylor was charged with sexually assaulting his girlfriend’s minor daughter and a bevy of other offenses—among them, causing mental harm to his victim and a bail jumping charge based on the mental harm charge. The sole issue in these consolidated appeals is whether the evidence was sufficient for the jury to convict Taylor on the charge for causing mental harm and the associated bail jumping charge. We conclude it was. Relevant facts support the jury’s verdict, and no expert testimony was required to show that Taylor caused mental harm to his victim.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Kaitlin C. Sumnicht

Case No.: 2017AP280-CR

Officials: NEUBAUER, C.J.

Focus: Motion to Suppress Evidence Denied

Kaitlin C. Sumnicht appeals from a judgment convicting her of operating a motor vehicle while intoxicated (OWI), second offense, and challenges the order denying her motions to suppress evidence on grounds that she did not voluntarily consent to having her blood tested and that she later revoked any purported consent. Because we conclude that the evidence was sufficient to show that she voluntarily consented to the test and further conclude that her consent could not be revoked after her blood was drawn, we affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Ryan L. Schultz

Case No.: 2017AP603-CR

Officials: GUNDRUM, J.

Focus: Motion to Suppress Evidence Denied

Ryan Schultz appeals from a judgment of conviction for operating a motor vehicle with a prohibited alcohol concentration, second offense, and the circuit court’s denial of his motion to suppress evidence. Schultz asserts that the results of his blood test should have been suppressed because the search warrant authorizing the blood draw was not supported by probable cause. Because we conclude the warrant-issuing judge had “a substantial basis” for concluding probable cause existed, we affirm.

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WI Court of Appeals – District IV

Case Name: Nathan Pollnow, et al. v. Town of Elba

Case No.: 2016AP1535

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

Focus: Jury Instructions and Sufficiency of Evidence

The Town of Elba appeals a judgment of the circuit court declaring a portion of Frank Road discontinued under WIS. STAT. § 82.19(2)(b)2. (2015-16). The Town argues that the circuit court erred by: (1) failing to grant the Town’s motion for judgment notwithstanding the verdict; (2) failing to properly instruct the jury; and (3) failing to properly answer a question from the jury during deliberation. The Town also contends that Frank Road cannot be determined to have been discontinued because there was evidence at trial that a portion of Frank Road that is adjacent to the disputed portion but ultimately dead ends was regularly used. For the reasons discussed below, we affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Johnny Richardson

Case No.:  2016AP2373-CR

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

Focus: Ineffective Assistance of Counsel

Johnny Richardson appeals a judgment of conviction for repeated sexual assault of the same child. He also appeals an order denying his postconviction motion. Richardson claims ineffective assistance of trial counsel on several grounds. We affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Geoffrey A. Herling

Case No.: 2017AP133

Officials: Sherman, Blanchard and Kloppenburg, JJ.

Focus: Ineffective Assistance of Counsel

Geoffrey Herling was convicted of two counts of attempted first-degree intentional homicide and appeals from an order denying his second motion for a new trial. As with his first postconviction motion, Herling seeks to establish that he suffered from amnesia at the time of the attempted homicides. In this second motion filed under WIS. STAT. § 974.06 (2015-16), Herling also argues that he was denied effective assistance of counsel at trial and in his first appeal. We reject Herling’s arguments and affirm.
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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Anthony S. Taylor

Case No.: 2017AP587-CR

Officials: BLANCHARD, J.

Focus: Motion to Suppress Evidence Denied

Anthony Taylor appeals a judgment of conviction for possession of marijuana as a second or subsequent offense and the denial of his motion to suppress evidence obtained during a search of an apartment unit where Taylor was staying. The search was conducted after police obtained consent to search from a resident, following a police dog alert to the presence of drugs in the unit. Taylor argues that the dog sniff was unlawful, and that the consent was not sufficiently attenuated to purge the taint of the unlawful dog sniff. Taylor also argues that consent was not voluntarily given. I assume without deciding that use of the drug-sniffing dog was unlawful, and reject Taylor’s remaining arguments. Accordingly, I affirm.
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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Kenneth J. Lamb

Case No.: 2017AP887-CR

Officials: Blanchard, Kloppenburg and Fitzpatrick, JJ.

Focus: Motion for Sentence Modification Denied

Kenneth Lamb appeals an order that denied his motion for sentence modification. The sole issue on appeal is whether the diagnosis of an additional mental disorder and the development of psychological treatments to treat that disorder that were unavailable at the time of Lamb’s sentencing constitute a new sentencing factor. We agree with the circuit court that the additional diagnosis and evolving treatment methods do not constitute a new sentencing factor, and therefore affirm.
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WI Supreme Court Digests

WI Supreme Court

Case Name: State of Wisconsin v. Jose Alberto Reyes Fuerte

Case No.: 2017 WI 104

Focus: Plea Withdrawal – Harmless Error  

This is a review of a published decision of the court of appeals that reversed the Columbia County Circuit Court’s order denying Jose Alberto Reyes Fuerte’s (“Reyes Fuerte”) motion to withdraw two guilty pleas for two separate criminal violations. The motions for withdrawal were made pursuant to Wis. Stat. § 971.08(2) (2013- 14). State v. Reyes Fuerte, 2016 WI App 78, 372 Wis. 2d 106, 887 N.W.2d 121.

The State argues that motions to withdraw a guilty plea pursuant to Wis. Stat. § 971.08(2) should be subject to harmless error analysis pursuant to Wis. Stat. §§ 971.26 and 805.18, and thus this court should overrule its decision in State v. Douangmala, 2002 WI 62, 253 Wis. 2d 173, 646 N.W.2d 1. The State asks this court to remand this matter to the circuit court for a Bangert hearing in order to determine whether Reyes Fuerte knew of the potential immigration consequences of his plea at the time of the plea hearing.

We hold that Douangmala was objectively wrong because it failed to properly consider the harmless error statutes, Wis. Stat. §§ 971.26 and 805.18, and is thus overruled. Applying harmless error analysis, we further hold that the circuit court’s error in this case was harmless as a matter of law and thus reverse the decision of the court of appeals.

Reversed

Concur:

Dissent: ABRAHAMSON, J. dissents, joined by A.W. BRADLEY, J. (opinion filed).
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WI Supreme Court

Case Name: Office of Lawyer Regulation v. Robert W. Horsch

Case No.: 2017 WI 105

Focus: Attorney Disciplinary Proceedings

We review the report and recommendation of Referee Richard M. Esenberg that Attorney Robert W. Horsch be publicly reprimanded for professional misconduct and that he pay the full costs of this proceeding, which are $1,797.03 as of February 7, 2017. The Office of Lawyer Regulation (OLR) asked that, in addition to the public reprimand, the court impose various conditions on Attorney Horsch. The referee recommended that implementation of the conditions be suspended for a period of 90 days following this court’s order imposing discipline. The referee made this recommendation because it appeared that Attorney Horsch wanted to voluntarily resign from the practice of law. The referee recommended that if, during the 90-day period, Attorney Horsch voluntarily resigned from the State Bar, the conditions would not need to be implemented.

We conclude that Attorney Horsch’s felony conviction for fourth offense operating while intoxicated (OWI) warrants a 60-day suspension of his license to practice law rather than a public reprimand. Attorney Horsch has now indicated that he does not want to resign from the practice of law. However, his license is currently administratively suspended so he is not practicing law. Under the circumstances, we deem it appropriate to order that the conditions proposed by the OLR would take effect in the event Attorney Horsch ever resumes the active practice of law. We also deem it appropriate, as is our custom, to impose the full costs of this proceeding against Attorney Horsch.

Affirmed

Concur: ABRAHAMSON, J. concurs and dissents (opinion filed).

Dissent: ABRAHAMSON, J. concurs and dissents (opinion filed).
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WI Supreme Court

Case Name: Office of Lawyer Regulation v. Alan R. Stewart

Case No.: 2017 WI 106

Focus: Attorney Disciplinary Proceedings

We review Referee John B. Murphy’s recommendation that Attorney Alan R. Stewart be declared in default and that his license to practice law in Wisconsin be suspended for 60 days for professional misconduct. The referee also recommended that Attorney Stewart pay the full costs of the proceeding, which are $805.85 as of October 11, 2017.

We declare Attorney Stewart to be in default. We agree with the referee that Attorney Stewart’s professional misconduct warrants a 60-day suspension of his license to practice law in Wisconsin. We also agree that Attorney Stewart should pay the full costs of this proceeding.

Affirmed

Concur:

Dissent:
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WI Supreme Court

Case Name: Office of Lawyer Regulation v. Jeffrey M. Blessinger

Case No.: 2017 WI 107

Focus: Attorney Disciplinary Proceedings

Attorney Jeffrey M. Blessinger has filed a petition for the consensual revocation of his license to practice law in Wisconsin pursuant to Supreme Court Rule (SCR) 22.19.  Attorney Blessinger’s petition states that he cannot successfully defend against the allegations of professional misconduct arising out of seven separate Office of Lawyer Regulation (OLR) investigations concerning his conduct. An OLR summary of those investigations and of the potential allegations of professional misconduct is attached to Attorney Blessinger’s petition as Appendix A. Having reviewed Attorney Blessinger’s petition, the OLR’s summary of possible misconduct, and the OLR’s October 31, 2017 written recommendation in support of the petition and restitution, we conclude that the petition for consensual revocation should be granted and that Attorney Blessinger should be required to pay restitution as set forth herein.

Suspended or Affirmed

Concur: A.W. Bradley, J., concurs (opinion filed).

Dissent:
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Supreme Court Digests

United States Supreme Court

Case Name: In Re United States, et al. on Petition for Writ of Mandamus

Case No.: 17-801

Focus: DACA Rescindment

This case arises from five related lawsuits that challenge a determination adopted by the Acting Secretary of the Department of Homeland Security (DHS). The determination, announced by the Acting Secretary, is to take immediate steps to rescind a program known as Deferred Action for Childhood Arrivals, or DACA, by March 5, 2018. The Acting Secretary stated that her determination was based in part on the Attorney General’s conclusion that DACA is unlawful and likely would be enjoined in potentially imminent litigation.

The issue to be considered here involves respondents’ contention that the administrative record the Government filed to support the Acting Secretary’s determination to rescind DACA is incomplete. The record consists of 256 pages of documents, and the Government contends that it contains all of the nondeliberative material considered by the Acting Secretary in reaching her determination. (Nearly 200 pages consist of published opinions from various federal courts.)

On remand of the case, the Court of Appeals shall take appropriate action so that the following steps can be taken. The District Court should proceed to rule on the Government’s threshold arguments and, in doing so, may consider certifying that ruling for interlocutory appeal under 28 U. S. C. §1292(b) if appropriate. Thereafter, the Court of Appeals or the District Court in the first instance may consider whether narrower amendments to the record are necessary and appropriate. This order does not suggest any view on the merits of respondents’ claims or the Government’s defenses, or that the District Court’s rulings on the Government’s motion to dismiss and respondents’ motion for preliminary injunction should be delayed.

The judgment of the Court of Appeals for the Ninth Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion.

Vacated and Remanded

Dissenting:

Concurring:
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