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Weekly Case Digests — Jan. 8 – Jan. 12, 2018

By: WISCONSIN LAW JOURNAL STAFF//January 12, 2018//

Weekly Case Digests — Jan. 8 – Jan. 12, 2018

By: WISCONSIN LAW JOURNAL STAFF//January 12, 2018//

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7th Circuit Digests

7th Circuit Court of Appeals

Case Name: E.F. Transit, Inc., v. David Cook, et al.,

Case No.: 16-3641

Officials: EASTERBROOK, ROVNER, and SYKES, Circuit Judges.

Focus: Preemption Claim

E.F. Transit, Inc., is a motor carrier licensed in the state of Indiana to transport beer, wine, and liquor. In an effort to expand its business, E.F. Transit entered into talks with Indiana Wholesale Wine & Liquor Company, a liquor and wine wholesaler, to deliver its wares. Twice the parties sought a regulatory green light from the Indiana Alcohol and Tobacco Commission, the agency tasked with enforcing Indiana’s alcoholic beverage laws. Twice the Commission noted concerns with the arrangement under Indiana’s prohibited-interest laws, which require strict separation of beer and liquor wholesaling. The obstacle was that E.F. Transit shares the same ownership and management as Monarch Beverage Company, Inc., a licensed beer and wine wholesaler. Based on the overlap, E.F. Transit might be deemed to hold an interest in Monarch’s beer wholesaling permit, which might in turn block its venture with Indiana Wholesale.

The Commission never definitively ruled on the proposed arrangement, but the regulatory cloud scuttled the budding business relationship. E.F. Transit and Indiana Wholesale broke off their plan. E.F. Transit then brought this suit for declaratory judgment and injunctive relief, arguing that enforcement of Indiana’s prohibited-interest statutes is preempted by federal law. The district court dismissed the claim as unripe based on the aborted business relationship and regulatory uncertainty. E.F. Transit appealed. In the meantime, separate litigation moving through the state courts was poised to resolve the predicate state-law question: In light of their shared ownership and management, does E.F. Transit hold an interest in Monarch’s beer wholesaling permit under Indiana’s prohibited-interest laws? While this appeal has been underway, the Indiana Supreme Court delivered an affirmative answer, holding that E.F. Transit and Monarch are “not just … two separate entities conducting close business transactions” but are “practically one in the same” under the prohibited-interest laws. Ind. Alcohol & Tobacco Comm’n v. Spirited Sales, LLC, 79 N.E.3d 371, 379 (Ind. 2017).

That ruling—and the standing threat of prosecution—are enough to remove any ripeness barrier to this suit. E.F. Transit need not violate the law and expose itself to punishment to raise its preemption claim. We reverse and remand for further proceedings.

Reversed and Remanded

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7th Circuit Court of Appeals

Case Name: Yasas Rodrigo v. Carle Foundation Hospital, et al.

Case No.: 16-1403

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

Focus: ADA Violation

Yasas Rodrigo sued his employer, Carle Foundation Hospital (“Carle”), for violations of the Americans With Disabilities Act, 42 U.S.C. § 12101 et seq. (“Act”). The district court granted summary judgment in favor of Carle on Rodrigo’s claims for disability discrimination, failure to provide a reasonable accommodation, and retaliation. Rodrigo appeals and we affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Cory L. Williams v. United States of America

Case No.: 16-3715

Officials: EASTERBROOK, KANNE, and SYKES, Circuit Judges.

Focus: Federal Rules of Criminal Procedure Violation – Rule 11

Cory Williams was charged with two counts of Hobbs Act robbery, 18 U.S.C. § 1952(a); one count of bank robbery, id. § 2113(a), (d); and three counts of brandishing a firearm in furtherance of those crimes, id. § 924(c). On the § 924(c) counts alone, he faced a statutory minimum of 57 years in prison, the equivalent of a mandatory life sentence. The government offered a favorable plea deal that promised to reduce his sentencing exposure by more than 39 years. After sending the terms to Williams’s attorney, the prosecutor emailed the proposal to Judge McCuskey pursuant to the judge’s standard practice. The judge replied by email, telling the parties that the deal was “exceedingly fair” and “[o]nly a fool would refuse [it].” Williams took the deal and pleaded guilty. The judge sentenced him to 18 years in prison in accordance with the agreement.

A year later Williams moved to set aside his sentence under 28 U.S.C. § 2255. As relevant here, he claimed that the judge impermissibly participated in plea negotiations in violation of Rule 11(c)(1) of the Federal Rules of Criminal Procedure and the Due Process Clause. He also alleged a deprivation of his Sixth Amendment right to effective representation based on his lawyer’s failure to raise the Rule 11(c)(1) violation and request the judge’s recusal. A newly assigned judge denied the motion without a hearing.

We affirm. Rule 11(c)(1) flatly forbids any judicial participation in plea negotiations, but the violation in this case was harmless. Williams insists that he would not have taken the plea deal but for the judge’s email, but that claim is not remotely plausible. The government’s case was rock solid, and the plea deal removed the risk of a mandatory life sentence and otherwise substantially reduced Williams’s prison exposure. His attorney’s failure to raise the Rule 11(c)(1) violation and request the judge’s recusal was likewise harmless.

Affirmed

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7th Circuit Court of Appeals

Case Name: John Lipsey v. United States of America, et al.

Case No.: 17-1063

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

Focus: Medical Malpractice – Negligence

In this appeal, John Lipsey seeks relief on behalf of his minor daughter J.L., for tragic injuries suffered by J.L. at birth. The district court granted summary judgment to the defendants, and Lipsey appeals that determination. Lipsey filed suit on behalf of his minor child, J.L., against the United States pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq., and against the “Kankakee Defendants”—consisting of: Kankakee County; Timothy Bukowski, Sheriff of Kankakee County; Michael Downey, Chief of Corrections; Heather Gill, R.N.; Timothy Menard, P.A.; Dr. Clyde Dayhoff, JCDC’s medical co-director; and Ivette Charee Sangster, L.P.N.—alleging medical malpractice and pendent claims under the Family Expense Act and for willful and wanton conduct. Judge Baker granted the motion for summary judgment of the defendant United States, and a subsequent district court judge, Judge Shadid, granted summary judgment on behalf of the Kankakee Defendants on the remaining claims. Lipsey now appeals both decisions.

The district court also properly granted summary judgment as to the non-medical defendants, as to whom a negligence standard applies. The plaintiff argues that the non-medical defendants were negligent in failing to confirm the availability of necessary care before accepting the transfer, but the record does not support such a determination. At the time White was accepted into the JCDC, the non-medical defendants knew that that the JCDC had housed pregnant inmates in the past and had provided medical care to those inmates. They had no reason to believe they would be unable to provide that same care for White as well. To the extent that they had any personal involvement after that point, they were entitled to rely on the judgment of their medical staff thereafter and nothing indicates

In a case such as this one, with tragic injuries to a newborn, the weight of the situation is ever-present in our minds. But we are entrusted here to determine only whether the district court properly applied the law to the defendants who are before us in this case. We hold that the district court properly granted summary judgment.

Affirmed

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7th Circuit Court of Appeals

Case Name: Clarence M. Easterling v. Michael Thurmer, et al.

Case No.: 17-1581

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

Focus: Due Process Violation – Time-barred

Clarence Easterling, a Wisconsin inmate, brought this action against correctional officials under 42 U.S.C. § 1983, contending that they violated his constitutional rights to due process of law and freedom of association by denying him visits with his daughter in 2004 and 2013. With respect to the claims based on 2004 events, the district court dismissed on the pleadings. It ruled that they were time‐ barred. With respect to the claims based on 2013 events, it later entered summary judgment for the defendants, concluding that other defenses blocked that claim.

The district court correctly ruled that Mr. Easterling’s claims arising out of actions taken in 2004 were barred by the statute of limitations. The remaining defendants permissibly denied him visits in 2013 because he did not use the correct procedure to request them. We also have considered Mr. Easterling’s other contentions, but none has merit. The judgment of the district court is therefore affirmed.

Affirmed

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7th Circuit Court of Appeals

Case Name: Ashley Gerstner v. Nancy A. Berryhill

Case No.: 16-4007

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

Focus: Disability Insurance Benefits – Expert Testimony

Ashley Gerstner challenges the denial of her application for disability insurance benefits and supplemental security income. An administrative law judge found that she was severely impaired by anxiety, bipolar disorder, panic disorder, depression, and fibromyalgia, and that these impairments were not disabling. Gerstner contends that the ALJ erred in assigning too little weight to her treating psychiatrist’s opinions and in discrediting her complaints of fibromyalgia pain. We vacate the judgment and remand.

Vacated and Remanded

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WI Court of Appeals Digests

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Christopher T. Seiler

Case No.: 2015AP2479

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

Focus: Ineffective Assistance of Counsel

Christopher Seiler appeals pro se from a circuit court order denying without an evidentiary hearing his WIS. STAT. § 974.06 (2015- 16) motion (1) challenging a statement he made to his probation officer and alleging ineffective assistance of trial counsel relating to that statement, and (2) seeking resentencing because the circuit court relied upon inaccurate information at sentencing and his trial counsel was ineffective. We agree with the circuit court that Seiler’s challenges to any aspect of the statement he made to his probation officer are barred by State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994). We further conclude that the circuit court did not rely upon inaccurate information at sentencing. We affirm.

WI Court of Appeals – District III

Case Name: State of Wisconsin v. James E. Anderson

Case No.: 2016AP2128-CR

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

Focus: Ineffective Assistance of Counsel

James Anderson appeals a judgment of conviction for various criminal offenses, entered upon jury verdicts, and an order denying his motion for postconviction relief. The evidence at trial established that the victim, Anderson’s mother, escaped from Anderson after he committed acts of physical violence against her, including strangulation. At trial, the State called the emergency room physician who treated the victim, as well as two police officers who interviewed her following her escape.

Anderson argues his trial attorney was constitutionally ineffective for failing to retain a medical expert to counter the emergency room physician’s testimony. However, Anderson has failed to demonstrate that the alleged deficiency prejudiced his defense. He significantly overstates the emergency room physician’s testimony. In fact, Anderson’s postconviction expert agreed with the physician’s testimony in most respects. In light of all the trial evidence, Anderson has failed to demonstrate a reasonable probability of a different result if his trial counsel had countered the treating physician’s testimony with his own medical expert’s testimony.

Anderson also faults his trial counsel for failing to object to the police officers’ testimony in which they described what the victim had told them. Anderson claims this testimony improperly “bolstered” the victim’s credibility and constituted hearsay. We reject these arguments because Anderson’s and the victim’s respective credibility were critical issues from the very beginning of the trial, and Anderson has failed to establish that the testimony was hearsay. For related reasons, we also conclude the admission of the officers’ testimony was neither plain error nor constitutionally problematic. We affirm in all respects.

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Kyle Austin Sewell

Case No.: 2017AP174-CR; 2017AP175-CR

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

Focus: Sentence Modification – Ineffective Assistance of Counsel

In these consolidated appeals, Kyle Austin Sewell appeals from judgments of conviction for one count of strangulation and suffocation and one count of felony intimidation of a witness, both as acts of domestic abuse and as a repeater. See WIS. STAT. §§ 940.235(1), 940.43(7), 973.055(1), and 939.62(1)(b) (2015-16).  Sewell also appeals from the denial of his postconviction motion. At issue on appeal is whether Sewell is entitled to resentencing or sentence modification based on an inaccurate representation made by his trial counsel at sentencing concerning the date Sewell would finish serving his preexisting criminal sentences in three prior cases. We affirm.

WI Supreme Court Digests

WI Supreme Court

Case Name: Partnership Health Plan, Inc., et al v. Office of the Commissioner of Insurance

Case No.: 2018 WI 1

Focus: Chapter 128: Wisconsin’s Bankruptcy Alternative

The decision of the court of appeals is affirmed by an equally divided Court. SHIRLEY S. ABRAHAMSON, J., withdrew from participation.

Affirmed

Concur:

Dissent:

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