Case Digests — April 7-11, 2014

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Wisconsin Law Journal Case Digests — April 7-11

Wisconsin Court of Appeals

Civil
Torts — economic loss doctrine

Eric and Kristan Mazemke appeal from an order dismissing on summary judgment their claim against Keith Pusch and Pusch Builders, Inc., for negligent siding installation. The Mazemkes contend that the circuit court erred in holding that the economic loss doctrine barred their claim. For the reasons that follow, we affirm. This opinion will not be published.

2013AP1472 Mazemke v. Pusch et al.

Dist II, Washington County, Gonring, J., Per Curiam

Attorneys: For Appellant: Kuss, Rudolph J., Brookfield; For Respondent: Danaher, James, West Bend

Wisconsin Court of Appeals

Civil
Family Law – guardianship — termination

In these consolidated appeals, Catherine D. appeals from circuit court orders terminating her Wis. Stat. ch. 54 (2011-12) guardianships over her two grandchildren. We affirm. This opinion will not be published.

2013AP1071, 2013AP1072 In the matter of the guardianship of Lucas S.: Catherine D. v. Jeramie S. et al.

Dist III, Oneida County, Bloom, J., Per Curiam

Attorneys: For Appellant: Crooks, Kevin P., Wausau; For Respondent: Detlefsen, Guy-Robert , Jr., Wisconsin Rapids

Wisconsin Court of Appeals

Civil
Insurance — UIM coverage

The issue is whether an insured can recover under his or her underinsured motorist (UIM) coverage when the insured’s damages exceed the $250,000 statutory liability cap applicable to a claim against a municipality for negligent operation of a vehicle. We conclude that, under the Truth in Auto Law in effect at the time of this accident, the insurer was obligated to provide UIM coverage. We therefore reverse the circuit court order for summary judgment in favor of the insurer and remand for further proceedings. Not recommended for publication in the official reports.

2013AP1772 Cordie et al. v. American Family Mutual Insurance Company, et al.

Dist II, Waukesha County, Dreyfus, J., Neubauer, P.J.

Attorneys: For Appellant: Menzel, Benjamin A., Waukesha; For Respondent: Wick, William R., Manitowoc; Sandfort, Katelyn P., Manitowoc

Wisconsin Court of Appeals

Civil
Open records — emails

E-mails sent to a state senator are open records, and must be disclosed, without the identity of the sender being redacted.

“Public awareness of ‘who’ is attempting to influence public policy is essential for effective oversight of our government. For example, if a person or group of persons who has played a significant role in an elected official’s election—by way of campaign contributions or other support—contacts a lawmaker in favor of or opposed to proposed legislation, knowledge of that information is in the public interest; perhaps even more so if the person or group also stands to benefit from or is at risk of being harmed by the legislation. Disclosure of information identifying the sender may assist in revealing such a connection. Here, for example, the circuit court observed that ‘Act 10 personally affected all government employees’ and Erpenbach acknowledged in his affidavit that Act 10 ‘directly affected [the] rights and obligations’ of the public employees who e-mailed him. The Institute asserts that ‘there are a number of form e-mails that make up a substantial amount of the e-mails received by Senator Erpenbach’ and that this, along with the content of the e-mails, suggests coordinated activity by public employee unions to affect the outcome of Act 10. Disclosure of the redacted information sought here can provide the public with knowledge and insight regarding who was attempting, either individually or in an organized fashion, to influence the public policy changes under consideration and thereby assist the public in performing its important government oversight function. See, e.g., Milwaukee Journal Sentinel v. City of Milwaukee, 2012 WI 65, ¶4, 341 Wis. 2d 607, 815 N.W.2d 367 (the open records law ‘reaffirms that the people have not only the opportunity but also the right to know what the government is doing and to monitor the government’); Schill, 327 Wis. 2d 572, ¶2 (plurality opinion) (‘The right of the people to monitor the people’s business is one of the core principles of democracy.’ (quoting Editorial, Shine Light on Public Records, WISCONSIN STATE JOURNAL, Mar. 14, 2010, at B1)). Whether government employees, another public official, a lobbyist, the CEO or employees of a corporation, the president or members of a union, or other individuals supporting or opposing a particular interest, awareness of who is attempting to influence public policy is of significant interest to the public.”

Reversed and Remanded.

Recommended for publication in the official reports.

2013AP1187 The John K. MacIver Institute for Public Policy Inc. v. Erpenbach

Dist. II, Grant County, Van De Hey, J., Gundrum, J.

Attorneys: For Appellant: Esenberg, Richard M., Milwaukee; For Respondent: Pyper, Thomas M., Madison; Buchko, Cynthia L., Madison

Wisconsin Court of Appeals

Civil
Juveniles – TPR — grandparent intervention

Renee B. and Jay B. appeal an order of the circuit court denying their motion to intervene in a CHIPS proceeding concerning L.D. Renee, who is the paternal grandmother of L.D., and Jay, who is L.D.’s paternal step-grandfather, argue that they should have been permitted to intervene in the CHIPS proceeding. Affirmed. This opinion will not be published.

2013AP2273 In the interest of L.D.: Renee B. et al. v. Dane County Department of Human Services et al

Dist IV, Dane County, Flanagan, J., Sherman, J.

Attorneys: For Appellant: Westmont, Ruth N., Madison; Premo, Maggie, Madison; For Respondent: Talis, John C., Madison; Quiroga, J. Alberto, Madison

Wisconsin Court of Appeals

Civil
Education – expulsion — due process

Patricia L., on her own behalf and on behalf of her minor child, Zachariah L., appeals from summary judgment in favor of the Oregon School District dismissing her action for declaratory judgment against Oregon. Patricia sought an order from the court requiring Oregon to provide educational services to Zachariah, who, at the time, was subject to expulsion from the Janesville School District. Patricia contends that Oregon’s decision not to enroll Zachariah or to provide him with alternative educational services violated article X, section 3 of the Wisconsin Constitution, and that Oregon, in acting without notice or hearing, denied Zachariah due process of law when it denied him enrollment. We affirm. Not recommended for publication in the official reports.

2013AP293 Patricia L. et al. v. Oregon School District

Dist IV, Dane County, Anderson, J., Sherman, J.

Attorneys: For Appellant: Kerschensteiner, Kristin M., Madison; For Respondent: Schmeckpeper, Jeffrey A., Milwaukee

Wisconsin Court of Appeals

Civil
Torts — medical expenses — causation

Rodney Lefler and Progressive Universal Insurance Company appeal a circuit court judgment and order entered after a jury trial in this personal injury case. Lefler and Progressive argue that the respondent, Gordon Lueders, did not meet his burden of proving that the past medical expenses he was awarded by the jury were for treatment of injuries caused by the accident at issue in this case. We affirm the judgment and order of the circuit court. This opinion will not be published.

2012AP2529 Lueders v. Lefler et al.

Dist IV, Waupaca County, Huber, J., Per Curiam

Attorneys: For Appellant: Peters, Daniel R., Wausau; For Respondent: Peterson, John C., Appleton

Wisconsin Court of Appeals

Criminal
Criminal Procedure — successive appeals

Anthony Ellis, pro se, appeals an order denying his motion to modify his sentence. The issue is whether there is a “new factor” that would allow Ellis to bring this motion despite the passage of time since his conviction and the procedural bar of State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994). We affirm. This opinion will not be published.

2013AP1256-CR State v. Ellis

Dist I, Milwaukee County, Moroney, J., Per Curiam

Attorneys: For Appellant: Ellis, Anthony, pro se; For Respondent: Loebel, Karen A., Milwaukee; Weinstein, Warren D., Madison

Wisconsin Court of Appeals

Criminal
Search and Seizure — warrantless searches – consent — scope

Kenneth Anthony Wright appeals a judgment convicting him after a guilty plea of possession of cocaine with intent to deliver, as a second or subsequent offense. Wright argues that the police violated his Fourth Amendment rights during a traffic stop because they acted outside the scope of the traffic stop when they asked for permission to search him. He also contends that the police went beyond the scope of his consent when they searched him. We affirm. This opinion will not be published.

2013AP540-CR State v. Wright

Dist I, Milwaukee County, Rothstein, J., Per Curiam

Attorneys: For Appellant: Erickson, Dianne M., Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Sanders, Michael C., Madison

Wisconsin Court of Appeals

Criminal
Criminal Procedure — plea withdrawal

Benjamin Parr appeals an order denying his Wis. Stat. § 974.06 motion to withdraw his 2002 no contest plea to one count of solicitation to commit first-degree sexual assault of a child. The motion alleged: (1) the court failed to inform Parr that sexual assault involved intentional touching for the purpose of sexual arousal or gratification and Parr did not understand that element; (2) the court failed to confirm Parr’s understanding of all of the constitutional rights he waived by pleading no contest; and (3) the court failed to establish a factual basis for the plea. After conducting a hearing on the motion, the circuit court denied the motion, finding the plea was knowingly, voluntarily and intelligently entered. We affirm the order. This opinion will not be published.

2013AP171 State v. Parr

Dist III, Eau Claire County, Theisen, J., Per Curiam

Attorneys: For Appellant: Doerfler, Christopher A., La Crosse; For Respondent: King, Gary M., Eau Claire; Remington, Christine A., Madison

Wisconsin Court of Appeals

Criminal
Criminal Procedure — plea withdrawal

Jimmie E. Horne appeals from a judgment of conviction for three counts of armed robbery as a party to a crime. Horne also appeals from an order denying his postconviction motion to withdraw his guilty pleas. He argues that he should be allowed to withdraw his guilty pleas because they were not knowingly and voluntarily entered. We reject his arguments and affirm the judgment and order. This opinion will not be published.

2013AP114-CR State v. Horne

Dist I, Milwaukee County, Hansher, J., Per Curiam

Attorneys: For Appellant: Jensen, Jeffrey W., Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Noet, Nancy A., Madison

Wisconsin Court of Appeals

Criminal
Sentencing – modification — new factors

Where the circuit court thought a defendant was entitled to two years of sentence credit, when he was only entitled to eight months, a new factor is present that permits sentence modification.

“Here, the circuit court took into account the amount of sentence credit to which Armstrong was entitled in determining the sentence, in order to ensure that Armstrong’s period of incarceration was not longer than it needed to be. However, nothing in the record suggests that the court enlarged the sentence with the purpose of depriving Armstrong of the sentence credit to which he was entitled. Accordingly, we conclude that Struzik prohibits neither the sentence imposed in this case, nor a sentence modification hearing for the circuit court to determine whether the accurate amount of sentence credit warrants modification of the sentence.”

Reversed and Remanded.

Recommended for publication in the official reports.

2013AP1995-CR State v. Armstrong

Dist. IV, Marquette County, Wright, Bult, JJ., Kloppenburg, J.

Attorneys: For Appellant: Hirsch, Eileen A., Madison; For Respondent: Hendee, Chad A.,. Montello; Burgundy, Sarah, Madison

Wisconsin Court of Appeals

Criminal
Criminal Procedure — ineffective assistance — conflict of interest

Marcos Ordonia-Roman appeals a judgment of conviction on three counts of sexual assault of a child under sixteen years of age and a decision and order denying his motion for postconviction relief. Ordonia-Roman contends: (1) he was denied the effective assistance of counsel because counsel had a conflict of interest that adversely affected counsel’s performance and therefore Ordonia-Roman is entitled to the presumption that counsel’s conflict of interest prejudiced him under Cuyler v. Sullivan, 446 U.S. 335 (1980), and State v. Kaye, 106 Wis. 2d 1, 315 N.W.2d 337 (1982); (2) the circuit court judge erred in not recusing himself, based on allegations that the judge was biased against both counsel and Ordonia-Roman; (3) the circuit court erred in declining to admit evidence at trial regarding the process by which Ordonia-Roman was interrogated and Ordonia-Roman’s initial claims that he did not commit the crimes charged; and (4) Ordonia-Roman was denied the effective assistance of counsel because defense counsel’s attempts to elicit evidence about the interrogation process and Ordonia-Roman’s initial denials were inadequate. For the reasons we explain, we reject Ordonia-Roman’s arguments and affirm. Not recommended for publication in the official reports.

2012AP1371-CR State v. Ordonia-Roman

Dist I, Milwaukee County, Borowski, J., Higginbotham, J.

Attorneys: For Appellant: Lichstein, Byron C., Madison; For Respondent: Balistreri, Thomas J., Madison; Loebel, Karen A., Milwaukee

Wisconsin Court of Appeals

Criminal
Criminal Procedure – competency — burden of persuasion

A court may allocate the burden of persuasion to the defendant (or defense counsel) in a postconviction competency proceeding, but must utilize the lower “preponderance/greater weight of the evidence” burden of proof when doing so.

“Although Cooper dealt with the test for competence to stand trial rather than competence in a postconviction proceeding, we see no distinction in the difference. The right to direct appeal from a criminal conviction is guaranteed by article I, section 21 of the Wisconsin Constitution. See State v. Perry, 136 Wis. 2d 92, 98, 401 N.W.2d 748 (1987). WISCONSIN STAT. §809.30 codifies that right. Competence during the constitutionally guaranteed direct appeal is equally as important and worthy of protection as is competence to stand trial. See Debra A.E., 188 Wis. 2d at 119, 129-30 (incompetent defendants have right to ‘fair opportunity’ for postconviction relief). Placing a higher burden of persuasion on the defense to prove the defendant’s incompetence, whether at trial or upon direct appeal, risks denying constitutional protections to a defendant who is more likely than not (although not clearly and convincingly) incompetent. See id. at 133-36 (outlining protections available for incompetent defendants in postconviction proceedings). We may not impose procedural burdens incompatible with the United States Constitution. State v. Byrge, 2000 WI 101, ¶28 n.7, 237 Wis. 2d 197, 614 N.W.2d 477.”

Reversed and Remanded.

Recommended for publication in the official reports.

2012AP2692-CR State v. Daniel

Dist. II, Kenosha County, Warren, J., Reilly, J.

Attorneys: For Appellant: Jurek, Anthony J., Middleton; For Respondent: Moeller, Marguerite M., Madison; Zapf, Robert D., Kenosha

Wisconsin Court of Appeals

Criminal
Motor Vehicles – OWI — prior convictions

A statutory summary suspension counts as a prior conviction for OWI, but a reckless driving conviction does not.

“The State has pointed to no language in subsection (1)(d) suggesting Jackson’s reckless driving conviction qualifies as a prior conviction thereunder, nor do we find any. Instead, the State asks us to expand the language of WIS. STAT. § 343.307(1)(d) — which, again, counts prior out-of-jurisdiction convictions — by asking us to look at what offense was originally charged, what sanctions were imposed by the court on the reckless driving conviction, and how that conviction would preclude Jackson from being placed on supervision for a subsequent OWI conviction in Illinois. It is the job of the legislature, however, not the courts, to amend statutes. See State v. Briggs, 214 Wis. 2d 281, 288, 571 N.W.2d 881 (Ct. App. 1997) (‘We assume that the legislature deliberately chooses the language it uses in a statute. To accept [the defendant’s] interpretation of [the statute at issue] is to expand the meaning of the statute to the point that we engage in rewriting the statute, not merely interpreting it.’ (Citation omitted.)). Here, in addition to the legislature choosing the alcohol and drug-related terms, it also chose the term ‘convictions.’ It certainly could have adopted (or can adopt) language that would allow for the counting of reckless driving convictions that stem from an initial OWI charge, or based upon the sanctions imposed or the potential future impact of the conviction; it has not, however, done so. See id. at 288 (‘Whether this statute is wise is not a matter for this court to decide. That decision was made by the legislature and, if it is to be reconsidered, the legislature is the body to undertake such an endeavor.’). The State has conceded and we agree that Jackson’s 2003 conviction was for reckless driving; the initial charge, sanctions, and potential future consequences are of no moment.”

Affirmed in part, and Reversed in part.

Recommended for publication in the official reports.

2013AP1282-CR State v. Jackson

Dist. II, Walworth County, Race, J., Gundrum, J.

Attorneys: For Appellant: Kmiec, Theodore B., III, Salem; For Respondent: Sanders, Michael C., Madison; Necci, Daniel A., Elkhorn.

Wisconsin Court of Appeals

Criminal
Criminal Procedure — plea withdrawal — immigration consequences

Counsel’s failure to advise a defendant concerning clear deportation consequences of his plea bargain is prejudicial if the defendant shows that “a decision to reject the plea bargain would have been rational under the circumstances.”

Under Padilla, we repeat, ‘a rational decision not to plead guilty does not focus solely on whether [a defendant] would have been found guilty at trial — Padilla reiterated that an alien defendant might rationally be more concerned with removal than with a term of imprisonment.’ United States v. Orocio, 645 F.3d 630, 643 (3d Cir. 2011), abrogated in part on other grounds by Chaidez v. United States, 133 S. Ct. 1103 (2013). In numerous post-Padilla cases, courts have concluded that despite the benefit of a great reduction in the length of the potential prison sentence, a rational noncitizen defendant might have rejected a plea bargain and risked trial for the chance at avoiding deportation. For instance, in State v. Sandoval, 249 P.3d 1015 (Wash. 2011), the court recognized that even though Sandoval’s plea agreement reduced his penalty exposure from possible life imprisonment to a maximum of one year imprisonment, ‘[g]iven the severity of the deportation consequence … Sandoval would have been rational to take his chances at trial.’ Id., ¶¶21-22. Reasoning similarly, in Orocio, the court concluded that a defendant might rationally have proceeded to trial even though he faced a minimum ten-year sentence: Mr. Orocio was only 27 years old at the time he entered the plea agreement, and he rationally could have been more concerned about a near-certainty of multiple decades of banishment from the United States than the possibility of a single decade in prison. Orocio, 645 F.3d at 645; see also Denisyuk v. State, 30 A.3d 914, 929 (Md. 2011) (‘We are not alone in understanding that many noncitizens might reasonably choose the possibility of avoiding deportation combined with the risk of a greater sentence over assured deportation combined with a lesser sentence.’).”

“That is the proper analysis here, too: not merely whether Mendez would have won his trial but whether in his particular circumstances, given his family in the United States and his fear of return to Mexico, he might rationally have decided to reject the plea and risked four and one-half years in prison, so as to preserve a chance of avoiding deportation.”

Reversed and Remanded.

Recommended for publication in the official reports.

2013AP1862 State v. Mendez

Dist. II, Waukesha County, Domina, J., Brown, J.

Attorneys: For Appellant: Ziemer, David, Glendale; Christopher, Marc E., Milwaukee; For Respondent: Schimel, Brad, Waukesha; Noet, Nancy A., Madison

Wisconsin Court of Appeals

Criminal
Search and Seizure — probable cause

Marcus Norfleet appeals from a judgment of conviction for operating a motor vehicle with a prohibited alcohol concentration, second offense. The main issue on appeal is whether at the time of Norfleet’s arrest for attempting to elude an officer, police had probable cause to believe Norfleet was the driver of the suspect vehicle. The circuit court found probable cause and denied Norfleet’s motion to suppress evidence subsequent to his arrest. We affirm as the circuit court properly found that police had probable cause for Norfleet’s arrest on multiple charges, and therefore, Norfleet’s motion to suppress was properly denied. This opinion will not be published.

2013AP2294-CR State v. Norfleet

Dist II, Fond du Lac County, Wirtz, J., Reilly, J.

Attorneys: For Appellant: Piel, Walter Arthur, Jr., Milwaukee; For Respondent: Weber, Gregory M., Madison; Christenson, Andrew Joseph, Fond du Lac

Wisconsin Court of Appeals

Criminal
Sentencing — repeater enhancements

Anthony R. Giebel appeals from a judgment of conviction on one count of battery as a repeater, entered after revocation of his probation, and from an order denying postconviction relief. Giebel contends that a conflict exists between Wis. Stat. §§ 973.01 and 939.62 when applied to misdemeanor repeaters like himself and that the circuit court should have recognized this conflict and modified his sentence in a manner consistent with one of our unpublished decisions, State v. Gerondale, Nos. 2009AP1237/1238-CR, unpublished slip op. (WI App Nov. 3, 2009). We now have the benefit of a recent published decision addressing the concern surrounding these statutory provisions. See State v. Lasanske, 2014 WI App 26, ___ Wis. 2d ___, ___ N.W.2d ___. In light of this recent decision, we conclude that Giebel’s sentence is appropriate and affirm. This opinion will not be published.

2013AP1874-CR State v. Giebel

Dist II, Fond du Lac County, English, J., Gundrum, J.

Attorneys: For Appellant: Velasquez, Michelle L., Madison; For Respondent: Mortier, Scot T., Fond du Lac; Weber, Gregory M., Madison

Wisconsin Court of Appeals

Criminal
Search and Seizure — reasonable suspicion

A jury found Megan Schneider guilty of possessing narcotic drugs and drug paraphernalia. She appeals on the basis that her pretrial motion to suppress the fruits of an illegal detention and search was erroneously denied. We disagree and affirm the judgment of conviction. This opinion will not be published.

2013AP1808-CR State v. Schneider

Dist II, Washington County, Martens, J., Per Curiam

Attorneys: For Appellant: McClune, Scott Ryan, Milwaukee; For Respondent: Bensen, Mark, West Bend; Lloyd, Katherine Desmond, Madison

Wisconsin Court of Appeals

Criminal
Criminal Procedure — plea withdrawal

In 2005, Travis T. Lamb pled no contest to attempted first-degree intentional homicide and possession of THC. Lamb and others were involved in a July 2003 altercation in which Vincent Howard got stabbed. Howard testified at Lamb’s preliminary hearing that it was Lamb who stabbed him. Lamb was convicted in March 2005.

In 2013, Lamb sought to withdraw his pleas. He claimed it was not he who stabbed Howard and cited newly discovered evidence, to wit, three unsolicited letters Howard sent to the court in October and November 2005 recanting his testimony and a March 2010 letter, also unsolicited, from Jonathon Glass, an associate of Howard’s, corroborating Howard’s recantation. Glass explained that Howard lied so that he could exact “street justice” against the real perpetrator. The court summarily denied the motion. We affirm the order. This opinion will not be published.

2013AP1570 State v. Lamb

Dist II, Winnebago County, Bissett, J., Per Curiam

Attorneys: For Appellant: Lamb, Travis T., pro se; For Respondent: Wren, Christopher G., Madison; Gossett, Christian A., Oshkosh

Wisconsin Court of Appeals

Criminal
Criminal Procedure — severance

This appeal concerns a joint murder trial that should never have proceeded jointly. Relying upon the “interlocking confessions” doctrine, which had been abrogated by the United States Supreme Court more than twenty years earlier, the circuit court denied Teddy Bieker’s motion to sever his trial from the trial of his codefendant John Navigato, despite the fact that the State intended to introduce Navigato’s out-of-court statements as evidence against both defendants. The same happened to Navigato, as we explain in our separate opinion concerning his appeal—the court denied Navigato’s motion to sever the trials but allowed the State to introduce out-of-court statements by Bieker as evidence against Navigato. Judgment and order reversed and cause remanded with directions. Not recommended for publication in the official reports.

2012AP2693-CR State v. Bieker

Dist II, Kenosha County, Milisauskas, J., Brown, C.J.

Attorneys: For Appellant: Tempska, Urszula, Shorewood; For Respondent: Moeller, Marguerite M., Madison; Zapf, Robert D., Kenosha

Wisconsin Court of Appeals

Criminal
Criminal Procedure — severance

John Navigato was convicted of first-degree murder and other crimes in a joint trial with codefendant Teddy Bieker. Navigato was the ringleader of the group that committed these crimes, but Bieker fired the fatal shot. As we explain in our opinion in Bieker’s appeal, the only issues for trial concerned the parties’ intentions — in particular, whether Bieker shot the victim intentionally or accidentally. State v. Bieker, No. 2012AP2693-CR, unpublished slip op., ¶¶4, 46-48 (WI App Apr. 9, 2014). By the Court.—Judgment and order reversed and cause remanded with directions. Not recommended for publication in the official reports.

2012AP2108-CR State v. Navigato

Dist II, Kenosha County, Milisauskas, Torhorst, JJ., Brown, C.J.

Attorneys: For Appellant: Pinix, Matthew S., Milwaukee; For Respondent: Moeller, Marguerite M., Madison; Zapf, Robert D., Kenosha

U.S. Court of Appeals For the Seventh Circuit

Civil
Civil Procedure — class actions — removal

Where the plaintiff would not irrevocably commit to seeking less than $5 million, the district court must determine whether the amount at issue exceeds that amount.

“What we are left with to guide our decision is that the plaintiff did not irrevocably commit to obtaining less than $5 million for the class, and Pushpin’s estimate that the damages recoverable by the class if it prevails on the merits may well equal or exceed that amount may be reliable enough to preclude remanding the case to the state court. The only ground on which the district judge rejected Pushpin’s estimate and so decided to remand the case was that most of the claims on behalf of the class are barred by the Rooker-Feldman rule. That was a mistake; and the judge was also mistaken in saying that ‘there is a strong presumption in favor of remand’ when a case has been removed under the Class Action Fairness Act. There is not. Back Doctors Ltd. v. Metropolitan Property & Casualty Ins. Co., supra, 637 F.3d at 830. The judge will have to determine anew whether the amount in controversy reaches the statutory minimum, thus barring remand, or does not, thus requiring remand. We don’t have enough information to be able to make that determination ourselves.”

Reversed and Remanded.

14-8006 Johnson v. Pushpin Holdings LLC

Petition for Leave to Appeal from the United States District Court for the Northern District of Illinois, Kocoras, J., Posner, J.

U.S. Court of Appeals for the Seventh Circuit

Civil
Constitutional Law — due process

A nursing home facility occupied exclusively by patients on Medicaid does not have a property interest in its reputation that it can enforce against the federal government.

“Bryn Mawr has been stigmatized, and as a facility completely filled with Medicaid patients, it is at the mercy of regulators entrusted by statute with enormous discretion. 11 See also Siegert v. Gilley, 500 U.S. 226, 234 (1991) (‘But so long as such damage flows from injury caused by the defendant to a plaintiff’s reputation, it may be recoverable under state tort law but it is not recoverable in a Bivens action.’) (discussing the holding in Paul v. Davis, 424 U.S. at 708–09, that one does not have a liberty interest in his reputation). However, Bryn Mawr has failed to show that any of its rights have been altered. At worst, regulators may keep a stigmatizing record of noncompliance to guide the exercise of their discretion, but without the alteration or extinguishment of a right, Bryn Mawr has not been deprived of a ‘life, liberty, or property’ right. U.S. Const. amends. V and XIV, § 1. With no deprivation of a protected right, Bryn Mawr was not entitled to an opportunity to challenge the deficiency findings in a hearing. Id.”

Affirmed.

12-3678 Bryn Mawr Care Inc. v. Sebelius

Appeal from the United States District Court for the Northern District of Illinois, Leinenweber, J., Manion, J.

U.S. Court of Appeals for the Seventh Circuit

Civil
Employment — sex discrimination

A county board’s refusal to raise the pay of the elected county treasurer was not sex discrimination.

“Harper also complains that the Board treated Nelson, a male, better than her by giving him pay raises. But the County explains that the Board adopted the Finance Committee’s recommendation to give Nelson (the County Clerk) pay raises for the term commencing in December 2010 because of his particularly excellent work performance. The County points to evidence that Finance Committee members believed that Nelson went beyond his normal duties and worked overtime (including on weekends during the election process). The County offers evidence that Nelson helped the County save about $160,000 in health insurance premiums. The County also offers evidence that Finance Committee members believed that Nelson had improved the equipment, processes, and efficiency of the election process, had guided the County through a major information technology upgrade, and had spearheaded the County’s efforts to establish a geographic information system. Harper offers no contrary evidence. Thus, in addition to the complaints about her work performance, the County has offered undisputed and legitimate reasons for giving pay raises to Nelson but not to Harper. And Harper offers no evidence that these reasons are pretexts masking sex discrimination.”

Affirmed.

13-2553 Harper v. Fulton County Illinois

Appeal from the United States District Court for the Central District of Illinois, Mihm, J., Manion, J.

U.S. Court of Appeals for the Seventh Circuit

Civil
Immigration — asylum

An alien cannot obtain asylum based on imputed political opinions.

“Ruiz-Cabrera next asserts that the Board and immigration judge misinterpreted his claim that he would face persecution on the basis of imputed political opinion. He seems to suggest that two different and opposing types of political opinion will be imputed to him: first, PRD politicians see him as anti-PRD because of his bad relationship with his wife, but second, drug traffickers will ‘mistake his wife’s involvement in politics for his own support for the government’ and will target him on that basis.”

“The immigration judge reasonably found that Ruiz-Cabrera failed to substantiate his claim that any political opinion would be imputed to him based on his wife’s politics. It is not enough to show that a family member holds a political opinion. Ruiz-Cabrera also must show that an alleged persecutor would impute that opinion to him. See N.L.A. v. Holder, No. 11-2706, — F.3d —, —, 2014 WL 806954, at *6 (7th Cir. March 3, 2014); Hassan v. Holder, 571 F.3d 631, 641–42 (7th Cir. 2009); Sankoh v. Mukasey, 539 F.3d 456, 471–72 (7th Cir. 2008). The only evidence Ruiz-Cabrera supplied on this theory was general background evidence of drug violence and political corruption in Mexico. Nothing in the record indicates that traffickers or politicians are likely to connect him to his wife’s politics or to target him for those reasons.”

Petition Denied.

13-2939 Ruiz-Cabrera v. Holder

Petition for Review of an Order of the Board of Immigration Appeals, Hamilton, J.

U.S. Court of Appeals for the Seventh Circuit

Civil
Civil Procedure — shackles

A new trial is required where the plaintiff in a civil rights suit against jail guards was required to wear shackles during the trial.

“We said in Lemons v. Skidmore, 985 F.2d at 359, that ‘first, [the plaintiff] is entitled to the minimum restraints necessary, and a determination that some restraints are appropriate does not mean that leg-irons and handcuffs are required. Second, although the [trial] judge said that he would give a curative instruction to the jury, none was ever given. Third, there are various ways to minimize the appearance of restraints, and therefore minimize the likelihood of prejudice to the jury, and none of these ameliorative steps were taken.’ These precepts, equally applicable to this case, require reversal, and a remand for a new trial.”

Reversed and Remanded.

13-2420 Maus v. Baker

Appeal from the United States District Court for the Eastern District of Wisconsin, Randa, J., Posner, J.

U.S. Court of Appeals for the Seventh Circuit

Civil
Intellectual Property – trademarks — abandonment

Where the plaintiff had not used a trademark for five years, it was abandoned.

“Specht’s argument does not address the district court’s sound conclusion that Google became the senior user of the Android mark when it used the mark in commerce in November 2007. By then, the Android mark lay abandoned. Once a mark is abandoned, it returns to the public domain, and may be appropriated anew. See Indianapolis Colts, Inc. v. Metro. Baltimore Football Club Ltd. P’Ship, 34 F.3d 410, 412 (7th Cir. 1994); ITC Ltd., 482 F.3d at 147. By adopting the abandoned mark first, Google became the senior user, entitled to assert rights to the Android mark against the world. Its use since November 2007 has been uninterrupted and continuous. That is enough to warrant trademark protection. See Zazu Designs, 979 F.2d at 503; Blue Bell, Inc. v. Farah Mfg. Co., Inc., 508 F.2d 1260, 1265 (5th Cir. 1975) (“even a single use in trade may sustain trademark rights if followed by continuous commercial utilization”); see also Planetary Motion, Inc. v. Techsplosion, Inc., 261 F.3d 1188, 1194–95 (11th Cir. 2001) (release of software to end users is use in commerce even though no sale was made).”

Affirmed.

11-3317 Specht v. Google Inc.

Appeal from the United States District Court for the Northern District of Illinois, Leinenweber, J., Rovner, J.

U.S. Court of Appeals for the Seventh Circuit

Civil
Agriculture — choice of law

A contract dispute against a foreign agricultural supplier is governed by the United Nations Convention on Contracts for the International Sale of Goods.

“Most of VLM’s business is conducted from its headquarters near Montreal, including its performance of the contract with Illinois Trading. VLM’s only connection to the United States is a single office in New Jersey that appears to exist primarily to allow the company to maintain a PACA license. The district court thought that the New Jersey office sufficed to make VLM’s place of business the United States. But Article 10(a) of the Convention provides that ‘if a party has more than one place of business, the place of business is that which has the closest relationship to the contract and its performance.’ As we’ve noted, it’s undisputed that VLM conducts most of its business in Canada, and the New Jersey office had no relationship to the performance of VLM’s contracts with Illinois Trading. Accordingly, VLM’s place of business is clearly Canada, and the Convention controls.”

Reversed and Remanded.

13-1799 & 13-1697 VLM Food Trading International Inc. v. Illinois Trading Co.

Appeals from the United States District Court for the Northern District of Illinois, Leinenweber, J., Sykes, J.

U.S. Court of Appeals for the Seventh Circuit

Criminal
Sentencing — reasonableness

A 92-month sentence for bank robbery, far below the guideline range, is not excessive.

“Given the defendant’s age (62) and poor health, a sentence of 92 months — almost eight years — is admittedly stiff. But it is so far below the bottom of the guidelines range that it cannot be thought excessive. We are pleased to see that the district judge sentenced the defendant as far below the guidelines range as he did in order to avoid imposing a sentence that in the circumstances would be ‘a sentence of life,’ citing a recent opinion of this court expressing concern about sentences so long that they are likely to crowd the prisons with the elderly. United States v. Craig, 703 F.3d 1001, 1002–04 (2012) (per curiam) (concurring opinion); see also United States v. Johnson, 685 F.3d 660, 661–62 (7th Cir. 2012).”

Dismissed.

13-1163 U.S. v. Bey

Appeal from the United States District Court for the Northern District of Illinois, Norgle, J., Posner, J.

U.S. Court of Appeals for the Seventh Circuit

Criminal
Sentencing — safety-valve

A defendant who received an upward enhancement under U.S.S.G. 3B1.1 as a supervisor is ineligible for a safety-valve adjustment.

“[U]nder the rules of construction for the United States Code, ‘words importing the plural include the singular’ unless the context indicates otherwise. 1 U.S.C. § 1; see also Rowland v. Calif. Men’s Colony, Unit II Men’s Advisory Council, 506 U.S. 194, 200–01 (1993) (courts may depart from § 1’s presumptive definitions to avoid ‘forcing a square peg into a round hole’); United States v. Holcomb, 657 F.3d 445, 448 (7th Cir. 2011). Further support for denying the safety valve to a supervisor of a single person appears in 18 U.S.C. § 3553(f)(4), which disqualifies a defendant from the safety valve if he was a ‘supervisor of others in the offense, as determined under the sentencing guidelines.’ 18 U.S.C. § 3553(f)(4) (emphasis added). The plain language of § 3553(f)(4) conditions safety-valve relief on whether the defendant is characterized as a supervisor anywhere in the guidelines, see id.; U.S.S.G. § 5C1.2(a)(4); Doe, 613 F.3d at 690, and the commentary to § 3B1.1 authorizes the two-level adjustment as long the defendant supervised ‘one or more’ participants. U.S.S.G. § 3B1.1 cmt. n.2. (emphasis added); see also United States v. Gonzalez-Mendoza, 584 F.3d 726, 728–29 (7th Cir. 2009) (§ 3B1.1 adjustment for defendant’s supervision of one co-conspirator foreclosed argument for safety-valve relief). Because May properly received the two-level adjustment under § 3B1.1, he is not eligible for safety-valve relief.”

Affirmed.

13-2799 U.S. v. May

Appeal from the United States District Court for the Northern District of Illinois, Chang, J., Manion, J.

U.S. Court of Appeals for the Seventh Circuit

Criminal
Sentencing — supervisor enhancement

Where the defendant provided cocaine to 22 co-conspirators, the district court properly enhanced his sentence for being a supervisor under U.S.S.G. 3B1.1(b).

“[T]he district judge interpreted the phone calls with co-conspirators and various threats against them as a form of supervision, going beyond merely supplying cocaine and urging prompt payment. That was a reasonable interpretation of the evidence. See United States v. Bennett, 708 F.3d 879, 892 (7th Cir. 2013) (‘Although most supervisors do not terrorize their subordinates (at least not physically), administering sanctions for poor work quality is a quintessential supervisory task.’); Weaver, 716 F.3d at 444 (‘[T]he ability to coerce underlings is a key indicator of control or authority suggestive of managerial or supervisory responsibility in the criminal enterprise.’).”

Affirmed.

12-2685 U.S. v. Ruelas-Valdovinos

Appeal from the United States District Court for the Southern District of Illinois, Reagan, J., Hamilton, J.

U.S. Court of Appeals for the Seventh Circuit

Criminal
Criminal Procedure — involuntary medication

The district court must hold an individualized hearing before ordering that an incompetent defendant be involuntarily medicated.

“We must conclude that the record similarly is inadequate to establish the third Sell requirement—that the medication is necessary to further the Government’s important interests and “that any alternative, less intrusive treatments are unlikely to achieve substantially the same results.” Id. Before a district court can conclude that involuntary medication is necessary, it must consider whether less intrusive means are possible. Chatmon, 718 F.3d at 376 (reversing medication order where the district court had not addressed the defendant’s arguments regarding less intrusive means “and essentially provided ‘no rationale’ in support of its ruling”). Mr. Debenedetto’s counsel conditioned his client’s willingness to return to Butner on the ground that the professionals there “review or consider less intrusive measures.” R.69 at 7. Indeed, the district court accepted this qualification and incorporated it into its order. See R.63 at 4. In doing so, the district court necessarily failed to make, as it must, the required finding that alternative, less intrusive treatments would be unlikely to achieve substantially the same results. Here, the district court impermissibly delegated that responsibility.”

Vacated and Remanded.

13-3281 U.S. v. Debenedetto

Appeal from the United States District Court for the Northern District of Illinois, Castillo, J., Ripple, J.

U.S. Court of Appeals for the Seventh Circuit

Criminal
Sentencing – reasonableness — waiver

A general objection to an above-guideline sentence is insufficient to preserve for appeal any particularized argument.

During oral argument we raised the possibility that Donelli’s argument had been waived. Her lawyer suggested that her general objection to her above-guideline sentence was enough to preserve the procedural objection under Cunningham. We disagree. Donelli’s objection was to the substantive reasonableness of the sentence, not to the procedure the district court used, let alone the sufficiency of the explanation. Her objection was insufficient to preserve her contention on appeal that the court disregarded its Cunningham duty. Under the approach we set forth in Garcia-Segura, Donelli waived any argument that the district court failed to consider any principal argument in mitigation.”

Affirmed.

13-2548 U.S. v. Donelli

Appeal from the United States District Court for the Southern District of Indiana, Barker, J., Hamilton, J.

U.S. Court of Appeals for the Seventh Circuit

Criminal
Criminal Procedure — confrontation clause

It is not necessary that the technician who prepared a CD of a prisoner’s phone calls be called to testify.

“Vitrano seizes on the Melendez-Diaz line of cases, asserting that the prison technician who prepared the CDs should have been called to testify at trial. But Vitrano has failed to identify what precisely the ‘missing’ analyst did or said that was hearsay, much less testimonial hearsay. Unlike in Melendez- Diaz and its progeny, we have no report in which the prison technician states, after analysis, that Vitrano was urging Valona to lie or threatening him. Perhaps there was a certification that the calls were stored and pulled in the normal fashion, but Vitrano does not identify it.”

“Preparing an exhibit for trial is not in itself testimonial; we have previously ruled that ‘an expert who gives testimony about the nature of a suspected controlled substance may rely on information gathered and produced by an analyst who does not himself testify.’ Turner, 709 F.3d at 1190. There was thus no need for the government to call the technician who prepared Exhibit 9 as a witness, and no violation of Vitrano’s Sixth Amendment rights.”

Affirmed.

13-2912 U.S. v. Vitrano

Appeal from the United States District Court for the Eastern District of Wisconsin, Adelman, J., Kanne, J.