Weekly Case Digests — Nov. 7 – Nov. 11, 2016

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Owner-Operator Independent Drivers Association, Inc., et al v. United States Department of Trasnporation, et al

Case No.: 15-3756

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

Focus: Judicial Review

In 2012, Congress directed the Department of Transporta‐ tion to issue regulations to require most interstate commercial motor vehicles to install electronic logging devices (ELDs). ELDs are linked to vehicle engines and automatically record data relevant to the hours of service regulations: whether the engine is running, the time, and the vehicle’s approximate lo‐ cation. The devices are intended to improve drivers’ compli‐ ance with the regulations, to decrease paperwork, and ulti‐ mately to reduce the number of fatigue‐related accidents. Congress instructed the Department in promulgating the rule to consider other factors as well, such as driver privacy and preventing forms of harassment enabled by the ELDs. 49 U.S.C. § 31137. The Federal Motor Carrier Safety Administra‐ tion, which is part of the Department of Transportation, promulgated the final rule requiring ELDs in 2015. Electronic Logging Devices and Hours of Service Supporting Docu‐ ments, 80 Fed. Reg. 78,292 (Dec. 16, 2015) (“Final ELD Rule”), codified in 49 C.F.R. Pts. 385, 386, 390, and 395. Petitioners Mark Elrod, Richard Pingel, and the Owner‐ Operator Independent Drivers Association (OOIDA) brought this action for judicial review of the final rule. Elrod and Pin‐ gel are professional truck drivers, and OOIDA is a trade organization. They argue that the agency’s final rule should be vacated for five reasons. We uphold the final rule and deny their petition.

Petition Denied

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7^th Circuit Court of Appeals

Case Name: United States of America v. Lloyd B. Lockwood

Case No.: 15-3856

Officials: BAUER, POSNER, and MANION, Circuit Judges

Focus: Sentencing

This case returns for a second time. Lloyd Lockwood appeals his 120-month sentence for possession of a destructive device. Previously, we vacated Lockwood’s first sentence of the same length. This time, for the reasons set forth below, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Deandre Armour

Case No.: 15-2170

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

Focus: Sentencing – Mandatory Minimum

This appeal stems from an attempted bank robbery. It presents issues concerning the defendant’s sentence and the definition of a “crime of violence” in 18 U.S.C. § 924(c), which provides extra punishment for use of a firearm in committing a crime of violence. We affirm the district court’s judgment for the most part, but we must remand for re-sentencing on one count of conviction because the court imposed a mandatory minimum sentence under § 924(c) without a jury finding on the key fact.

Affirmed in part

Vacated and remanded in part

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7^th Circuit Court of Appeals

Case Name: Kiril Hristov Vidinski v. Loretta E. Lynch

Case No.: 13-2478; 13-3263

Officials: WILLIAMS and HAMILTON, Circuit Judges

Focus: Ineffective Assistance of Counsel – Judicial Review

Petitioner Kiril Vidinski is a native of Bulgaria. He entered the United States as a visitor in 1998 but overstayed his visa. He married a United States citizen, Constance Literski, in 2002, and in 2005 he and Ms. Literski filed petitions seeking legal permanent resident status for him. Before those petitions were resolved, Ms. Literski told an investigator for Immigration and Customs Enforcement (ICE) that the marriage had been a sham to obtain immigration benefits for Vidinski (and money for her). Removal proceedings resulted in a final order to remove Vidinski, and the Board of Immigration Appeals dismissed his appeal and later denied his motion to reopen proceedings based on ineffective assistance of counsel. He now seeks judicial review, arguing primarily that he was entitled to cross‐examine Ms. Literski, whose affidavit was critical to the marriage fraud is‐ sue. We dismiss in part and deny the remainder of the petitions on their merits.

Petition Dismissed

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7^th Circuit Court of Appeals

Case Name: United States of America v. John Thomas

Case No.: 15-2509

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

Focus: Sentencing – Conditions of Supervised Release

The defendant pleaded guilty to committing wire fraud, in violation of 18 U.S.C. § 1343, by submitting fraudulent invoices to an Illinois town (Riverdale), which reimbursed him for $374,000 claimed in the invoices but not owed him by the town. The district judge sentenced him to 60 months in prison to be followed by 36 months of supervised release. The appeal challenges the conditions of supervised release and not the prison sentence, but asks us to order a full resentencing of the defendant.

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: Sandra Hall v. Ann Flannery, et al

Case No.: 15-2602

Officials: BAUER, FLAUM, and WILLIAMS, Circuit Judges

Focus: Court Error – Expert Opinion

Chelsea Weekley suffered a skull fracture as an infant and underwent surgery 17 years later to fix it. She died several days after the surgery, and her mother, Sandra Hall, sued the hospital and the surgeons. Hall argued that the surgery caused Weekley to suffer a seizure and die, and that the surgeons should have prescribed anti‐seizure medication. But the defendants argued that no seizure had occurred and that a heart‐related ailment was the likely cause of death. A jury trial was held and the jury found in the defendants’ favor. On appeal, Hall argues that the district judge erroneously permitted three of the defendants’ experts to opine about Weekley’s likely cause of death. We conclude that Hall forfeited her arguments as to two of these experts by making perfunctory and underdeveloped arguments concerning the experts’ testimony, qualifications, and methodology. However, we find that the third expert lacked the requisite qualifications to opine that Weekley’s heart ailment was the likely cause of death. Because there is a significant chance that the erroneous admission of this expert testimony affected the out‐ come of the trial, we vacate the district court’s judgment and remand for further proceedings.

Vacated and remanded

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7^th Circuit Court of Appeals

Case Name: Midwest Fence Corporation v. United States Department of Transportation, et al

Case No.: 15-1827

Officials: BAUER and HAMILTON, Circuit Judges, and PETERSON, District Judge.

Focus: Constitutionality – DBE Certification

“Plaintiff Midwest Fence Corporation challenges federal and state programs that offer advantages in highway construction contracting to disadvantaged business enterprises, known as DBEs. For purposes of federally funded highway construction, DBEs are small businesses that are owned and managed by “individuals who are both socially and economically disadvantaged,” 49 C.F.R. § 26.5, primarily racial minorities and women, who have historically faced significant obstacles in the construction industry due to discrimination, § 26.67(a). Pursuant to the federal DBE program, states that accept federal highway funding must establish DBE participation goals for federally funded highway projects and must attempt to reach those goals through processes tailored to actual market conditions. . . The district court granted the defendants’ motions for summary judgment. Midwest Fence Corp. v. U.S. Dep’t of Transportation, 84 F. Supp. 3d 705 (N.D. Ill. 2015). We affirm. We join other circuits in holding that the federal DBE program is facially constitutional. The program serves a compelling government interest in remedying a history of discrimination in highway construction contracting. The program provides states with ample discretion to tailor their DBE programs to the realities of their own markets and requires the use of raceand gender-neutral measures before turning to race- and gender-conscious ones. The IDOT and Tollway programs also survive strict scrutiny. These state defendants have established a substantial basis in evidence to support the need to remedy the effects of past discrimination in their markets, and the programs are narrowly tailored to serve that remedial purpose.”

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin ex rel. Jacob D. Miller v. Milwaukee County Personnel Review Board, et al

Case No.: 2015AP2118

Officials: Kessler and Brennan, JJ., and Daniel L. LaRocque, Reserve Judge

Focus: Certiorari Challenge – Due Process

Jacob D. Miller, a Milwaukee County Deputy Sheriff, appeals from a circuit court order affirming a Milwaukee County Personnel Review Board (PRB) disciplinary decision. The PRB imposed a 90-day suspension for rule violations, in lieu of discharge, followed by a career-long “reevaluation period,” leading to a termination for any rule violation. Miller raises a Certiorari challenge to the PRB’s imposition of a re-evaluation period contending that any re-evaluation period violates his right to a hearing and determination of “just cause” under due process and WIS. STAT. §§ 59.52(8)(b) and 63.10(2) (2013- 14)

Recommended for publication

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WI Court of Appeals – District I

Case Name: Ceria M. Travis Academy, Inc., v. Tony Evers

Case No.: 2015AP2314

Officials: Kessler and Brash, JJ., and Daniel L. LaRocque, Reserve Judge.

Focus: Contract Enforceability

The Department of Public Instruction (DPI) appeals orders of the circuit court in which the court determined that a Settlement Agreement (the Agreement) entered between DPI and Travis Technology High School (Travis Tech) allowing Travis Tech to remain in the Milwaukee Parental Choice Program (MPCP) is unenforceable based on two provisions in the Agreement. The Agreement was entered into to avoid a preliminary decision by DPI to bar Travis Tech from participation in the MPCP because the school failed for several years to file the requisite financial documents in a timely manner. The circuit court ordered DPI to release withheld funds and to allow Travis Tech to remain in the MPCP. We conclude that the provision of the Agreement in which DPI and the school agree to a surety bond and the provision by which Travis Tech waived its right to judicial review are enforceable. Accordingly, we reverse the circuit court’s decision and remand the matter to the DPI.

Recommended for publication

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WI Court of Appeals – District II

Case Name: Central Wisconsin Electric Cooperative v. John F. Hoffman

Case No.: 2015AP1071

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

Focus: Contract Enforceability

John Hoffman, pro se, appeals a money judgment of $18,823.48 entered against him in favor of Central Wisconsin Electric Cooperative (CWEC). Hoffman argues the contract he signed with CWEC that formed the basis for the judgment is unenforceable because it is unconscionable and was the result of CWEC’s fraudulent conduct. In addition, he argues the circuit court erred in concluding he was negligent, he unlawfully interfered with CWEC’s prescriptive easement, and in dismissing his breach of contract counterclaim. We reject Hoffman’s arguments and affirm the judgment.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Marvin A. Corbine, Jr.

Case No.: 2015AP1582-CR

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

Focus: General Appeal – Ineffective Assistance of Counsel

Marvin Corbine, Jr., appeals from a judgment of conviction following a jury trial for first-degree reckless homicide, attempted first-degree intentional homicide, aggravated battery, criminal trespass, and felony bail jumping. Corbine also appeals an order denying a postconviction motion seeking a new trial. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Randy Lee Shepard

Case No.: 2015AP1886

Officials: Kessler, Brennan and Brash, JJ.

Focus: Ineffective Assistance of Counsel

Randy Lee Shepard appeals the circuit court’s order committing him under WIS. STAT. ch. 980 (2013-14) and the circuit court’s order denying his postconviction motion. Shepard argues that he received ineffective assistance of trial counsel because his lawyer failed to object to the admission of hearsay evidence. We affirm

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WI Court of Appeals – District I

Case Name: G&D Properties, LLC, et al v. Milwaukee Metropolitan Sewerage District and City of Milwaukee

Case No.: 2015AP1906

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

Focus: Failure to Provide Notice

G&D Properties, LLC, Systems Engineering Company, Inc., Cecil Edirisinghe, Velicon, Ltd., Kenneth Dragotta, David Garms, and Systems Engineering & Automation Corp. (collectively, “G&D”) appeal a judgment of the circuit court granting summary judgment to the Milwaukee Metropolitan Sewerage District (MMSD) and the City of Milwaukee (the City). G&D contends that it filed proper notice of flood damage with MMSD and the City, that the governmental entities had actual knowledge of the circumstances giving rise to G&D’s claim, and that the entities were not prejudiced by any lack of notice. We affirm the circuit court.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Cynthia Caldwell

Case No.: 2015AP2222-CR

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

Focus: Court Error

Cynthia Caldwell appeals a judgment of conviction entered after a jury found her guilty of keeping a drug house and of possession with intent to deliver more than fifteen but less than forty grams of cocaine, both as a party to a crime. See Wis. Stat. §§ 961.42(1), 961.41(1m)(cm)3., & 939.05 (2013-14). She also appeals the order denying her postconviction motion. On appeal, Caldwell makes three arguments: (1) the trial court erred when it denied her a new trial based on a violation of her right against self-incrimination and her trial attorney’s related ineffective assistance; (2) the trial court erred when it denied her a new trial based on her trial attorney’s ineffective assistance for failing to present relevant evidence regarding the nature of her relationship with Joshua Sloan, her co-actor; and (3) alternatively, the trial court erred when it denied her motion for sentence modification or resentencing. We disagree and affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Curtis D. Christianson

Case No.: 2015AP2440-CR

Officials: Stark, P.J.

Focus: Court Error – Reasonable Suspicion

Curtis Christianson appeals a judgment of conviction for third-offense operating a motor vehicle while intoxicated (OWI). Christianson argues the circuit court erred when it denied his motion to suppress because the officer who conducted the traffic stop lacked either reasonable suspicion to believe Christianson was intoxicated or probable cause to believe a traffic violation had occurred. We disagree and affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Steven J. Schaefer

Case No.: 2015AP2555-CR

Officials: Stark, P.J.

Focus: OWI – Motion to Suppress

Steven Schaefer appeals a judgment convicting him of one count of operating while intoxicated (OWI), as a fourth offense. Schaefer argues the circuit court erred by denying his suppression motion. He also argues the court erred by refusing to vacate forfeiture of his cash bond. We reject Schaefer’s arguments and affirm.

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WI Court of Appeals – District III

Case Name: Daniel Clement Dufrene v. Deborah Jean Dufrene

Case No.: 2015AP2652

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

Focus: Divorce – Child Support

Deborah DuFrene appeals from a divorce judgment. She argues the circuit court erred when it gave her former husband, Daniel DuFrene, credit toward his child support obligation for payments Deborah receives from the Minnesota Adoption Assistance Program. We conclude the circuit court properly exercised its discretion by giving Daniel credit for the payments. Accordingly, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. F.B.

Case No.: 2016AP497

Officials: Kessler, J.

Focus: Sex Offender Registry

F.B. appeals from an order of the circuit court requiring him to register as a sex offender. F.B. argues that the factors a circuit court must consider in determining whether to stay sexual offender registration, as discussed in State v. Cesar G., 2004 WI 61, ¶40, 272 Wis. 2d 22, 682 N.W.2d 1, support a stay of registration. We affirm.

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WI Court of Appeals – District I

Case Name: Acuity v. Bryan Michalak, et al

Case No.: 2015AP2487

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

Focus: Court Error – Failure to Mitigate Damages Evidence

Robyn Swantz suffered a foot injury in a motor vehicle accident and, as a result, made a claim for insurance coverage against Acuity. At a jury trial, the only contested issue was the amount of Swantz’s damages for future expenses arising from the injury. The jury awarded Swantz damages at a level far less than that requested by Swantz. In this appeal, Swantz seeks a new trial, arguing that the circuit court erred in allowing the jury to consider evidence offered by Acuity of Swantz’s alleged failure to mitigate damages. The evidence involved a course of medical treatment recommended by an Acuity-retained physician, which Swantz did not follow. Acuity contended at trial that Swantz should have availed herself of the recommended treatment, which would cost less than the course of treatment that she had followed and planned to continue to follow under the advice of her treating physicians. We conclude that the court correctly applied controlling legal precedent regarding the role of juries in personal injury cases in deciding whether injured persons have acted reasonably in accepting or rejecting recommendations to submit to particular medical procedures that would allegedly mitigate their damages. Accordingly, we affirm.

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