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Weekly Case Digests — Jan. 5-9, 2015


Weekly Case Digests — Jan. 5-9, 2015


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U.S. Court of Appeals For the Seventh Circuit

Education accounts

The statutory bankruptcy exemption for state-qualified college savings accounts covers the interest of the account owners, not just the beneficiaries.

“The general exemption for college savings accounts in section 815.18(3)(p) would have no work to do if it is limited to the beneficiary’s interest in the account, which is separately protected by section 16.641(7). Indeed, the trustee’s interpretation of section 815.18(3)(p) actually undermines the interests of college-fund beneficiaries, making section 16.641(7) ineffective. If account owners may not invoke the general exemption in section 815.18(3)(p), as the trustee suggests and the lower courts held, then a college savings plan can be reached by an account owner’s creditors, impairing the beneficiary’s right to qualified withdrawals.”

Affirmed in part, and Reversed in part.

13-1123 & 13-1516 In re: Bronk

Appeals from the United States District Court for the Western District of Wisconsin, Conley, J., Sykes, J.

U.S. Court of Appeals For the Seventh Circuit

Civil Procedure
Discovery sanctions

Under Rule 26(g)(3), an award of sanctions is mandatory for a discovery violation.

“Rule 26(g)(3) is a different matter. Judge Durkin believed that it, like §1927, affords a district court the discretion to let a delict pass without sanctions. It does not. Lawyers must certify that they have fulfilled their discovery obligations. Rule 26(g)(3) provides (emphasis added): ‘If a certification violates this rule without substantial justification, the court, on motion or on its own, must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both. The sanction may include an order to pay the reasonable expenses, including attorney’s fees, caused by the violation.’ Rule 26(g)(3) gives the judge discretion over the nature of the sanction but not whether to impose one. Kurtz has not contested Judge Durkin’s conclusion that her conduct violates Rule 26(g)(1), so some sanction is mandatory.”

Affirmed in part, and Vacated in part.

14-1446 Rojas v. Town of Cicero

Appeal from the United States District Court for the Northern District of Illinois, Durkin, J., Easterbrook, J.

U.S. Court of Appeals For the Seventh Circuit

Civil Procedure
Subject matter jurisdiction

Litigation over Post-filing expenses does not create subject matter jurisdiction.

“Several times the Supreme Court has encountered the contention that a dispute about the allocation of costs, attorneys’ fees, or other post-filing expenses justifies adjudication of a suit that is otherwise not within federal jurisdiction. For example, in Diamond v. Charles, 476 U.S. 54 (1986), an intervenor who had been ordered to pay the prevailing side’s legal fees contended that this kept the controversy alive, even though the only litigants with standing had dropped out, since if the judgment were reversed on the merits the award of fees would fall with it. The Justices held, however, that awards of legal fees and other post-filing procedural events could not supply a case or controversy. 476 U.S. at 68–71. The Court followed up by holding that a litigant cannot sidestep the need for a controversy on the merits by bringing suit for the costs of bringing suit. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 107 (1998). See also Lewis v. Continental Bank Corp., 494 U.S. 472 (1990).”

Vacated and Remanded.

14-1464 State Farm Life Ins. Co. v. Jonas

Appeal from the United States District Court for the Southern District of Indiana, Lawrence, J., Easterbrook, J.

U.S. Court of Appeals  For the Seventh Circuit

Civil Rights
In forma pauper litigation

It was an abuse of discretion to dismiss a prisoner’s civil rights claim for failure to pay the partial filing fee.

“Sultan argues on appeal that the court abused its discretion by dismissing his suit. We agree with him. We begin with the fact that he is not entitled on his own to disburse funds from his prison trust account. This is a well-recognized fact; prison trust ‘accounts’ are not like bank ac-counts in which the depositor has the contractual status of creditor. See Thomas v. Butts, 745 F.3d 309, 313 (7th Cir. 2014); Wilson v. Sargent, 313 F.3d 1315, 1320–21 (11th Cir. 2002); Hatchet v. Nettles, 201 F.3d 651, 652 (5th Cir. 2000). Nor to our knowledge is there any rule of priority that requires state administrators to remit payments to a federal court before they satisfy an inmate’s debt to the prison itself. (We wondered in an earlier case whether the prison might be liable if it fails to comply with a judicial order under the Prison Litigation Reform Act. Lucien v. DeTella, 141 F.3d 773, 776 (7th Cir. 1998); compare Hall v. Stone, 170 F.3d 706, 708 (7th Cir. 1999) (holding federal warden in contempt for failing to remit comparable payment). As we did in Lucien, however, we can reserve this question for another day, because we have a more straightforward way to resolve the present case.) We note, however, that there is actually a systemic problem in prison lawsuits like Sultan’s: the law requires the payor (the prison) to process a drawer’s request for payment to permit the drawer to sue the payor. No such conflict of interest plagues ordinary commercial transactions. Even assuming that the prison is willing to put the court’s order for payment somewhere in the queue of Sultan’s creditors, it is entirely predictable that the prison will prefer to postpone Sultan’s ability to pursue litigation against itself.”

Vacated and Remanded.

14-1376 Sultan v. Fenoglio

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

Wisconsin Court of Appeals

name change

APPEAL from an order of the circuit court for Dane County:  MARYANN SUMI, Judge.  Affirmed.

This appeal arises from a civil rights lawsuit filed against various Department of Corrections personnel by a prison inmate who wishes to send and receive mail labeled solely with the spiritual name he has been using for years, Prince Atum-Ra Uhuru Mutawakkil, without any reference to his given birth name, Norman Green, under which he was originally convicted and committed to the custody of the department.  The appellant’s core contentions are that a prison policy that allows inmates who have had their names changed in court by a statutory mechanism to use only their new legal names on external correspondence, but does not grant the same privilege to those inmates who have taken spiritual names otherwise recognized under common law, misinterprets relevant administrative code provisions and violates rights guaranteed under the United States and Wisconsin Constitutions.  Alternatively, the appellant contends that a prior judicial ruling adding his common law spiritual name to his judgment of conviction should have either preclusive effect on disputed facts in this lawsuit or the same legal effect as a statutory name change.

DISTRICT IV;Dane County; MARYANN SUMI, Blanchard, P.J., Lundsten and Kloppenburg, JJ.

Attorneys: For Appellant: For Respondent:

2012AP002478 Prince Atum-Ra Uhuru Mutawakkil v. Gary Hamblin

Wisconsin Court of Appeals

administrative confinement

APPEAL from an order of the circuit court for Dane County:  JOHN W. MARKSON, Judge.  Affirmed.

Jose Soto, pro se, appeals an order denying his petition for a writ of certiorari challenging his administrative confinement in prison.[1]  Soto raises several challenges to his confinement.  For the reasons discussed below, we reject Soto’s arguments and affirm the order.

DISTRICT IV;Dane County; JOHN W. MARKSON, Lundsten, Higginbotham,  Kloppenburg, JJ.

Attorneys: For Appellant: For Respondent: Potter, Kevin C., Schaller, Melissa R.

2012AP001964 Jose Soto v. Greggory Grams

Wisconsin Court of Appeals

landlord-tenant – eviction

APPEAL from an order of the circuit court for Dane County:  JOHN C. ALBERT, Judge.  Affirmed and cause remanded with directions.

This appeal arises out of a small claims dispute between, on one side, Lily Management, LLC, and two persons who identify themselves as Lily Management’s “administrators,” Li Zhang and Xiong Zeng, and on the other side, Devin Thomas, who formerly rented an apartment from Lily Management.  Lily Management, Zhang, and Zeng appeal the circuit court’s order of July 9, 2014, which added Zhang and Zeng as plaintiffs in this case and ordered that judgment be entered in favor of Thomas and against Lily Management, Zhang, and Zeng for damages, costs, and attorney’s fees totaling $14,500.00.  For the following reasons, I affirm.

2014AP001705 Lily Management LLC v. Devin G. Thomas


Attorneys: For Appellant: For Respondent: Mitch, .

Wisconsin Court of Appeals

landlord-tenant – eviction

APPEAL from orders of the circuit court for Dane County:  JOHN W. MARKSON, Judge.  Affirmed.

Michael Shapiro appeals the circuit court’s orders on summary judgment dismissing all of his claims against two accountants, two attorneys, and their respective firms.  Shapiro contends that the court erred when the court dismissed the complaint as to all defendants.  However, Shapiro fails to address in his principal brief one of the grounds relied on by the court, namely, that the complaint does not describe the circumstances constituting alleged fraud by the defendants with particularity, as required by Wis. Stat. § 802.03(2) (2011-12). This failure is fatal to Shapiro’s appeal.  Accordingly, we affirm the circuit court on this ground.  We further observe that if we were to reach the merits on this ground, we would likely conclude that the complaint does not meet the heightened pleading specificity requirements of § 802.03(2), based on the short argument on this topic presented in Shapiro’s reply brief.

DISTRICT IV;Dane County; JOHN W. MARKSON, Blanchard, P.J., Lundsten, Sherman, JJ.

2014AP001338 Dr. Michael B. Shapiro v. Rick Vanden Heuvel CPA, S.C.

Attorneys: For Appellant: Erhard, Michael P., Watt, Nicholas C. For Respondent: Huibregtse, Bruce D., Grimmer, Kim, Richter, Ward I., Williams, William C., Intervenor:  Covelli, Claude J.

U.S. Court of Appeals For the Seventh Circuit

Public Health
Disability benefits

Where the ALJ did not explain why it rejected the treating physician’s conclusions, the denial of disability benefits must be reversed.

“The ALJ has a duty to fully develop the record before drawing any conclusions and must adequately articulate her analysis so that we can follow her reasoning. Murphy, 496 F.3d at 634. Without explaining how or why Dr. Kachmann’s bending and twisting opinion was not supported by the record, we are unable to properly review the ALJ’s opinion determination.

Similarly, the ALJ did not adequately articulate why Dr. Kachmann’s statements were internally inconsistent. In light of these errors, the ALJ must reevaluate whether Dr. Kachmann’s findings are entitled to controlling weight.”

Reversed and Remanded.

13-3626 Minnick v. Colvin

Appeal from the United States District Court for the Northern District of Indiana, Van Bokkelen, J., Bauer, J.


U.S. Court of Appeals For the Seventh Circuit

Criminal Procedure
Plea withdrawal

Where the guilty plea was marked by confusion, the defendant is entitled to withdraw his guilty plea.

“The final consideration in our totality of the circumstances approach examines the government’s proffered evidence. Examining this factor in Fernandez, we said that ‘[w]hile there was nothing wrong with the AUSA’s factual proffer on its face, the surrounding chaos at this change of plea hearing significantly negated any confidence in Fernandez’ understanding of and admission to those facts.’ Id.; see also Pineda-Buenaventura, 622 F.3d at 772. Similarly here, the government’s explanation of its evidence would probably be sufficient to secure a normal guilty plea, but ‘this was anything but an ordinary change of plea hearing.’ Fernandez, 205 F.3d at 1027. Before the hearing, Fard’s attorney had sought to be appointed under the CJA because Fard could not afford to pay him to go to trial, but the court, without any explanation in the order, rejected the request. If Fard did not plead guilty, trial was set to begin in a couple weeks. Neither the district court nor the government ever explained the nature of fraudulent intent on the record. Breaks were taken, but con-fusion continued. And throughout the hearing, the words

‘knowledge’ and ‘participation’ were used, rather than ‘intent’ or ‘fraudulent.’”

Vacated and Remanded.

14-1221 U.S. v. Fard

Appeal from the United States District Court for the Northern District of Illinois, Grady, J., Williams, J.

U.S. Court of Appeals  For the Seventh Circuit

Criminal Procedure
Judicial bias

Where the judge who sentenced the defendant after revocation of his supervised release had previously prosecuted the same case, the sentence must be vacated.

“So we have a situation in which a prosecutor who advocates against a particular defendant later sentences him to prison, albeit for subsequent though related violations—sufficiently related that she referred to the prior violations as influencing the sentence she imposed. One might say that the judge was finishing the work of the prosecutor she had been. Judge Darrow has said nothing about her participation as a prosecutor in that earlier proceeding against the defendant, however, and we do not suggest that she remembered it. But the possibility that a conscious or (more likely, we think) an unconscious recollection influenced the sentence she imposed cannot be excluded. The defendant had been accused of a more serious violation of supervised release in the earlier hearing, had been treated leniently by the judge, yet had continued violating supervised release, and the possibility that this history exerted an influence on the current sentence cannot be rejected on the basis of the government’s casual assertions. A ‘risk of undermining the public’s confidence in the judicial process’—a proper consideration when deciding on the appropriate remedy for a violation of the Judicial Code, see Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 864 (1988)—is present. In order, therefore, to dispel any possibility of an injustice stemming from the judge’s violation of the Code, we have decided to vacate the judgment and remand for a do-over of the sentencing proceeding before a different district judge.

So Ordered.

14-2223 U.S. v. Smith

Appeal from the United States District Court for the Central District of Illinois, Darrow, J., Posner, J.

Wisconsin Court of Appeals

Criminal Procedure
ineffective assistance – juror misconduct

APPEAL from a judgment and an order of the circuit court for Marathon County:  JILL N. FLASTAD, Judge.  Affirmed.

Timothy Grandison appeals a judgment convicting him of kidnapping with the use of a dangerous weapon, two counts of second-degree sexual assault, resisting or obstructing an officer, possession of cocaine with use of a dangerous weapon, and two counts of criminal damage to property, all as a repeat offender.  He also appeals an order denying his postconviction motion, in which he alleged ineffective assistance of trial counsel and juror misconduct.  The circuit court rejected the ineffective assistance claim after considering the testimony of Grandison’s trial counsel, and it rejected the juror misconduct claim without taking testimony from the juror, finding Grandison’s motion and supporting affidavit failed to identify any potentially prejudicial extraneous information discovered by the juror.  Grandison contends his trial counsel was ineffective in his closing argument by conceding Grandison obstructed an officer, and he asserts he is entitled to a hearing on his claim of juror misconduct.[1]  We reject these arguments and affirm the judgment and order.

DISTRICT III; Marathon County; JILL N. FLASTAD; Hoover, P.J., Stark, Hruz, JJ

2014AP000076-CR           State v. Timothy T. Grandison

Attorneys: For Appellant: O’Connell, Timothy T. For Respondent: Heimerman, Kenneth J.; Noet, Nancy A.

U.S. Court of Appeals For the Seventh Circuit

Criminal Procedure
Miranda warnings – custody

Where a suspect was not permitted to freely move about his parents’ home, he was in custody, and Miranda warnings were required.

“As for the setting, Borostowski was in familiar surroundings, in his sister’s bedroom, in his parents’ home. That fact generally weighs in favor of finding that he was not in custody. But he was forcefully separated from family members, and although he was in his own home, he was not allowed to move through the house without one or more agents at his side, and was handcuffed when he was first led back into the house. Orozco v. Texas, 394 U.S. 324, 325-27, 330 (1969) (finding custody where four officers entered the suspect’s bedroom and behaved as though he was ‘not free to go where he pleased but was under arrest’ even though they did not actually handcuff or physically subdue the suspect, and even though he was in familiar surroundings and the interrogation was not prolonged); Sprosty v. Buchler, 79 F.3d 635, 641-42 (7th Cir. 1996) (more important than the familiarity of the surroundings where the suspect was being held is the degree to which the police dominated the scene). See also Craighead, 539 F.3d at 1085 (when law enforcement agents restrain the ability of a suspect to move with physical restraints or through threats or intimidation, a suspect may reasonably feel he is subject to police domination within his own home and thus not free to leave or terminate the interrogation); Mittel-Carey, 493 F.3d at 40 (where agents told the defendant where to sit within his own home, physically separated him from his girlfriend, escorted him on the three occasions when he was permitted to move, including during a trip to the bathroom, the level of physical control the agents exercised over the defendant weighed heavily in favor of finding custody, despite the fact that the control was exercised inside defendant’s home).”

Reversed in part, and Affirmed in part.

13-3811 U.S. v. Borostowski

Appeal from the United States District Court for the Central District of Illinois, Shadid, J., Rovner, J.

Wisconsin Court of Appeals

negligent handling of a dangerous weapon – sufficiency of the evidence

APPEAL from a judgment of the circuit court for Milwaukee County:  JEFFREY A. WAGNER, Judge.  Affirmed.

Jonathan Thomas appeals the judgment convicting him of homicide by negligent handling of a dangerous weapon, contrary to Wis. Stat. § 940.08(1) (2011-12).[1]  On appeal, Thomas argues that there was insufficient evidence to convict him.  We disagree and affirm.

DISTRICT I; Milwaukee County; JEFFREY A. WAGNER, Curley, P.J., Brennan, J., and Thomas Cane, Reserve Judge.

2014AP000543-CR           State v. Jonathan Thomas

Attorneys: For Appellant: Chesshir, Carl W. For Respondent: Loebel, Karen A.; Winter, Tiffany M.

U.S Court of Appeals For the Seventh Circuit

Search and Seizure
Reasonable expectation of privacy

Recording a conversation in the back of a squad car does not violate a suspect’s reasonable expectation of privacy.

“Instead, the insurmountable obstacle to his claim is in the objective portion of the test-whether the expectation is one that society accepts as reasonable. Although our circuit has not yet addressed this question, six circuits have done so over the last two decades and all have held that there is no objectively reasonable expectation of privacy in a conversation that occurs in a squad car. See United States v. Dunbar, 553 F.3d 48, 57 (1st Cir. 2009); United States v. Turner, 209 F.3d 1198, 1200-01 (10th Cir. 2000); United States v. Clark, 22 F.3d 799, 801-02 (8th Cir. 1994); United States v. McKinnon, 985 F.2d 525, 527-28 (11th Cir. 1993); United States v. Fridie, 442 Fed. Appx. 839, 841 (4th Cir. 2011)(unpublished); United States v. Carter, 117 F.3d 1418 (5th Cir. 1997)(unpublished). The reasoning of those courts are instructive. The Tenth Circuit in Turner based its holding on the distinct nature of a squad car, which is a place bristling with electronics in which the practical realities of the situation should be apparent to occupants. 209 F.3d at 1201. It noted that in addition to the microphones to a dispatcher, it is increasingly common for squad cars to possess video recording devices (and in fact one such device was used to record the conversation in this case,) and other electronic and recording devices. Id. Moreover, as a number of circuits have recognized, the squad car is in essence the mobile office of the patrol officer, and the back seat is often used as a temporary jail for housing and transporting arrestees and suspects. Clark, 22 F.3d at 801-02; McKinnon, 985 F.2d at 527. Given the nature of the vehicle and the visible presence of electronics capable of transmitting any internal conversations, the expectation that a conversation within the vehicle is private is not an expectation that society would recognize to be reasonable. We agree with those circuits, and hold that conversations in a squad car such as the one in this case are not entitled to a reasonable expectation of privacy, and therefore the recording of the conversation is not a violation of the Fourth Amendment.”


13-1927 U.S. v. Webster

Appeal from the United States District Court for the Northern District of Indiana, Miller, J., Rovner, J.

U.S. Court of Appeals For the Seventh Circuit

Supervised release – financial ability

When imposing conditions of supervised release and requiring that the defendant pay the government for rehabilitative services, the court should include, that, repayment is conditioned on ability to pay.

“Although we have just concluded that title 18 U.S.C. § 3672 affords district courts the discretion to require that offenders repay the government for rehabilitative services furnished to them if they are financially able to do so, the problem with applying traditional factfinding practices to predict offenders’ future financial circumstances is that the conclusions are speculative. To avoid this speculation while remaining faithful to the fact-finding requirement imposed by 18 U.S.C. § 3672, the best practice for district courts to follow is to incorporate language into the special condition that requires the offender to pay for the costs of rehabilitative services if financially able to do so. See, e.g., Hinds, 770 F.3d at 666; Baker, 755 F.3d at 529; Siegel, 753 F.3d at 714.”

“The district court did not do that here. So despite affirming the substance of special condition nos. 1 and 9, because the district court made no findings about Cary’s financial circumstances before it imposed mandatory repayment requirements on him, these special conditions must be remanded to the district court for this limited purpose. If the district court, on this limited remand, elects to order the imposition of a conditional repayment plan on any of the special conditions imposed on Cary, it should incorporate the phrase ‘if financially able’ or a similar phrase to the last sentence of the applicable special conditions in the judgment. Hinds, 770 F.3d at 666 (remanding because the district court failed to make a determination ‘based on the offender’s financial resources’ before imposing a special condition). We need not address payment responsibilities in connection with condition no. 6 because we have vacated it.”

Affirmed in part, and Vacated in part.

14-1961 U.S. v. Cary

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

U.S. Court of Appeals For the Seventh Circuit


Where the district court did not address the defendant’s principal arguments in mitigation, and it cannot be determined whether the court considered them, the sentence must be vacated.

“The government concedes that the district court failed to address Morris’s argument that his sentence was unfairly driven by the crack/powder disparity, by the inclusion of a large amount of a counterfeit substance in the drug calculation, and by the actions of the informant’s police handlers. Under Johnson and Arberry, that was a procedural error. Although it is true that the court granted Morris a below-guidelines sentence, it is impossible to discern from this record whether the court credited Morris’s principal arguments in fashioning that sentence and so we must remand. Johnson, 643 F.3d at 549 (remand is necessary to consider the defendant’s argument regarding the crack/powder disparity even when the court sentenced the defendant below the guidelines range). The court may well have considered and rejected Morris’s arguments and simply neglected to memorialize that analysis on the record. Perhaps the court concluded, for example, that delivering a counterfeit substance presented the same risk for violence as delivering crack cocaine. We offer no opinion on the reasonableness of Morris’s below-guidelines sentence should the district court decide to reimpose it. But because we cannot determine whether the error here affected the district court’s choice of sentence, it may not be characterized as harmless. Olson, 450 F.3d at 683; Schlifer, 403 F.3d at 854.”

Vacated and Remanded.

14-2242 U.S. v. Morris

Appeal from the United States District Court for the Western District of Wisconsin, Crabb, J., Rovner, J.


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