Weekly Case Digests — March 27-31, 2017

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Kenneth Collins v. Nadir Al-Shami, et al

Case No.: 15-3179

Officials: FLAUM, EASTERBROOK, and WILLIAMS, Circuit Judges.

Focus: Deliberate Indifference

Following an arrest for driving while intoxicated, Kenneth Collins was booked into the Jackson County Jail in Indiana. Collins later sued a jail physician and the physician’s employer (a private corporation) under 42 U.S.C. § 1983 and Indiana state law, claiming that the doctor had provided inadequate medical care to Collins during his detention. The district court awarded summary judgment to defendants, and we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Ralph Shannon

Case No.: 15-2780

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

Focus: Special Conditions of Release – Sentencing

Ralph Shannon appeals the imposition of a special condition of release following his 2007 conviction for possession of child pornography, 18 U.S.C. § 2252(a)(4)(B). Specifically, he argues that Special Condition—requiring notice to the probation office before using certain devices—is unconstitutionally vague and that the district court imposed it without adequate explanation. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Tamara Simic v. City of Chicago

Case No.: 15-2496

Officials: POSNER, WILLIAMS, and HAMILTON, Circuit Judges.

Focus: Lack of Standing

On November 7, 2014, plaintiff Tamara Simic was driving in Chicago and texting on her cell phone. A police officer issued her a ticket because texting while driving violates a Chicago ordinance. Simic failed to pay the ticket, and the City took steps to collect a fine. Simic then sued the City, claiming that the ordinance is unconstitutional. She moved for a preliminary injunction to halt enforcement of the ordinance throughout Chicago, but the City then non-suited its case against her. The district court denied Simic’s motion for an injunction, and Simic has appealed. We affirm the district court’s denial of Simic’s motion for a preliminary injunction for two reasons. Simic did not face any threat of irreparable harm. Also, without assessing her likelihood of success on the merits of her constitutional arguments, it appears that Simic lacks Article III standing for the relief she seeks. Once our mandate issues, the district court should consider dismissing Simic’s lawsuit for lack of jurisdiction

Affirmed

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7^th Circuit Court of Appeals

Case Name: Mark Janus, et al v. American Federation of State, County and Municipal Employees, et al

Case No.: 16-3638

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

Focus: Issue Preclusion

In Abood v. Detroit Board of Education, 431 U.S. 209 (1977), the Supreme Court upheld, against a challenge based on the First Amendment, a Michigan law that allowed a public employer (in that case a municipal board of education), whose employees (public-school teachers) were represented by a union, to require those of its employees who did not join the union nevertheless to pay fees to it because they benefited from the union’s collective bargaining agreement with the employer. The fees could only be great enough to cover the cost of the union’s activities that benefited them; they could not be expanded to enable the union to use a portion of them “for the expression of political views, on behalf of political candidates, or toward the advancement of other ideological causes not germane to [the union’s] duties as collective-bargaining representative.” 431 U.S. at 235–36. For were that permitted, the workers who disagreed with the political views embraced by the union would be unwilling contributors to expenditures for promoting political views anathema to them, and the law requiring those contributions would thereby have infringed their constitutional right of free speech.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Madison Mutual Insurance Company v. Diamond State Insurance

Case No.: 15-3292

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

Focus: Insurance Coverage – Errors & Omissions Coverage

Madison Mutual Insurance Company (“Madison Mutual”) brought suit seeking a declaratory judgment obliging Diamond State Insurance Company (“Diamond State”) to defend Geraldine Davidson in a state‐ court action filed by her former neighbors, Dr. William and Wendy Dribben. Diamond State previously provided professional liability errors and omissions coverage to Davidson in her capacity as a real estate broker and supplied a defense to Davidson in a previous suit alleging certain wrongdoing by Davidson as a broker. Because the new suit repeats certain allegations from the prior suit, Madison Mutual asserts that it both relates back to the earlier action and may potentially involve claims within the coverage provided by Diamond State. The district court rejected these assertions and entered summary judgment in favor of Diamond State. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Brian Dutcher

Case No.: 16-1767

Officials: WOOD, Chief Judge, and RIPPLE and WILLIAMS, Cir‐ cuit Judges.

Focus: Sufficiency of Evidence

On June 30, 2015, Brian Dutcher announced on Facebook that he planned to assassinate President Obama. He then drove to La Crosse, Wisconsin, where the President was scheduled to speak on July 2. Once in La Crosse, Dutcher repeated his plan to several people: a security guard, the police, the Secret Service, a nurse, a doctor, and (again) the police and Secret Service together. No one was amused: Dutcher was charged with and convicted of two counts of threatening the President in violation of 18 U.S.C. § 871(a). On appeal, Dutcher complains about the sufficiency of the evidence and certain instructions the district court gave to the jury. We find no error, and so we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Vincente A. Jimines

Case No.: 16-3191

Officials: WOOD, Chief Judge, FLAUM, Circuit Judge, and CONLEY, Chief District Judge

Focus: Sentencing

After pleading guilty to three federal drug and money‐laundering offenses, Vincente Jimenes was sentenced to 151 months’ imprisonment and five years’ supervised release. In this appeal, he contends that his constitutional rights were violated by the use, for Sentencing Guide‐ lines purposes, of a state misdemeanor conviction that was obtained without the use of a Spanish interpreter. The district court reviewed the record of the conviction and was satisfied that enough informal translation took place to support a conclusion that his guilty plea was knowing. It did not need to go that far, however, because this was not the time nor place for a collateral attack on that conviction. We therefore affirm Jimenes’s sentence.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Peter B. Yusev et al v. Jeff Sessions

Case No.: 16-1338; 16-2242

Officials: WOOD, Chief Judge, and FLAUM and ROVNER, Circuit Judges

Focus: Immigration – Visa

United States since 2005. They managed this by overstaying their initial one-year non-immigrant visas. On August 16, 2007, some 18 months after their initial entry, they applied for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). They are citizens of Bulgaria, since 2007 a Member State of the European Union, but they belong to its Macedonian minority and assert that they have been persecuted on that basis. First an immigration judge, and later the Board of Immigration Appeals (BIA or Board), turned down their requests. The petitions for review now before us challenge the Board’s refusal to reopen their case based on their attorney’s alleged ineffectiveness, and its refusal to reconsider the ruling on the motion to reopen. Finding no abuse of discretion in either of the Board’s decisions, we deny the petitions for review.

Petition Denied

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7^th Circuit Court of Appeals

Case Name: Jesus Delgado-Arteaga v. Jeff Sessions

Case No.: 16-1816

Officials: BAUER, FLAUM, and HAMILTON, Circuit Judges

Focus: Immigration – Removal Proceedings

Over seven years and three petitions later, these proceedings have come to a conclusion. Petitioner, Jesus Delgado-Arteaga (“Delgado”), petitions for review of an order of the Board of Immigration Appeals’ decision affirming the immigration judge’s denial of withholding of removal, 8 U.S.C. § 1231(b)(3), and relief under the Convention Against Torture, 8 C.F.R. § 1208.16(c). Delgado challenges aspects of the expedited removal process under 8 U.S.C. § 1228(b) and a corresponding regulation, 8 C.F.R. § 1208.31(g)(2)(i). He also claims that the Board committed various legal errors. For the following reasons, we dismiss the petition for review in part for lack of jurisdiction and deny the remainder of his petition for review.

Petition Denied

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7^th Circuit Court of Appeals

Case Name: Sherry Anicich v. Home Depot, U.S.A.

Case No.: 16-1693

Officials: WOOD, Chief Judge, and ROVNER and HAMILTON, Circuit Judges

Focus: Negligence

This tragic case tests the scope of Illinois employers’ tort liability for intentional torts commit‐ ted by their supervisory employees against other employees where the employer has been negligent. Plaintiff’s complaint alleges that the defendants jointly employed as a supervisor a man with a known history of sexually harassing, verbally abusing, and physically intimidating his female subordinates. The complaint also alleges that the joint employers failed to take reasonable steps in response to female employees’ com‐ plaints and to misbehavior that more senior managers observed. The supervisor’s treatment of one subordinate, Alisha Bromfield, included verbally abusing her while throwing things, controlling and monitoring her both during and out‐ side her work hours, and requiring her to come with him on business trips. After five years of that treatment, he used his supervisory authority to require Alisha to come on a personal trip with him—to an out‐of‐state family wedding—by threatening to fire her or cut her hours if she refused. She went. After the wedding, he killed and raped her.   Alisha’s mother, acting as the administrator of the estates of Alisha and Alisha’s unborn daughter, has sued the employers. The defendant‐employers persuaded the district court that they had no duty to control this supervisor’s behavior. We respectfully disagree. Illinois law permits recovery from employers whose negligent hiring, supervision, or retention of their employees causes injury. The unusually detailed complaint plausibly states such claims. We believe the Illinois courts would apply this general principle to the claims arising from Alisha’s murder.

Reverse and remanded

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7^th Circuit Court of Appeals

Case Name: United States of America v. Timothy Hilliard

Case No.: 16-1249

Officials: FLAUM, MANION, and KANNE, Circuit Judges

Focus: Sentencing

Following a sting operation, Timothy Hilliard was charged with ten counts relating to numerous controlled sales of heroin, a heroin‐for‐guns trade, and a gun and heroin found during the execution of a search warrant at his home. At trial, Hilliard asserted an entrapment defense; the jury ultimately found Hilliard guilty on nine of the ten counts but was unable to reach a verdict on the first count. Hilliard now appeals, asking that we vacate his conviction and sentence and remand for a new trial on the basis of allegedly inappropriate testimony by a government witness at trial, as well as inadequate jury instructions on entrapment. For the reasons that follow, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Colt V. Lynn

Case No.: 15-3228

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

Focus:

Colt Lynn was convicted of one count of conspiracy to manufacture methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 846 and 18 U.S.C. § 2; and one count of conspiracy to possess pseudoephedrine, in violation of 21 U.S.C. §§ 841(c)(2), 846 and 18 U.S.C. § 2. The court imposed a below‐guidelines sentence of 192 months’ imprisonment. Mr. Lynn contends that the district court erred in admit‐ ting two kinds of evidence at trial: (1) National Precursor Ex‐ change System (“NPLEX”) logs concerning pharmacy pur‐ chases of products containing pseudoephedrine, an ingredi‐ ent in methamphetamine; and (2) a video of a chemist demon‐ strating a particular method for producing methampheta‐ mine, known as “shake‐and‐bake.” Mr. Lynn also contends that he should not have been sentenced as a career offender because his two predicate offenses for aggravated battery do not qualify as violent felonies. We affirm. The district court did not err in allowing the introduction of the NPLEX logs because those records are nontestimonial. Similarly, although the “shake‐and‐bake” video showed a different, and perhaps more sophisticated, means of production, the video’s presentation did not preju‐ dice Mr. Lynn. Finally, the district court properly applied the career offender enhancement because Mr. Lynn’s prior Illi‐ nois aggravated battery convictions were crimes of violence under U.S.S.G. § 4B1.2(a)(1).

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Julius Alfonoso Coleman

Case No.: 2013AP2100-CR

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

Focus: Merits of Appeal

Julius Alfonso Coleman appeals a judgment of conviction, following a jury trial, of one count of being a felon in possession of a firearm and one count of misdemeanor bail jumping. We affirm.

WI Court of Appeals – District I

Case Name: Andreas Rydland v. Marina Cliffs Association, et al

Case No.: 2015AP1215; 2015AP1565

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

Focus: Negligence – Indemnity

These appeals stem from an action brought by Andreas, Nicole, Emma and Lana Rydland (collectively, “the Rydlands”), in which the Rydlands alleged that the Marina Cliffs Association (“the Association”) was negligent in its maintenance and repair of the condominium unit in which the Rydlands resided and that the Association’s conduct was in breach of its contract with the Rydlands. A jury found in favor of the Association and further determined that the Rydlands were negligent with respect to the purchase of the condo unit and the maintenance and repair of the atrium area of the unit. The Rydlands now appeal, alleging that the trial court made several errors with respect to the jury verdict and erroneously excluded relevant evidence. The Association filed an appeal against State Farm Insurance Company (“State Farm”) stemming from the trial court’s post-verdict decision that State Farm did not have a duty to indemnify or defend the Association under the Association’s insurance policy with State Farm during the time period covering the Rydlands’ claims.  We affirm the trial court with respect to both appeals

WI Court of Appeals – District III

Case Name: Stephen Sustrick v. Stephenson National Bank & Trust

Case No.: 2015AP2065

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

Focus: Due Process

Stephen Sustrick, pro se, appeals an order disposing of a petition for court intervention filed by the corporate trustee of a family trust. This order was entered following an evidentiary hearing that Stephen did not attend. Shortly before the hearing, Stephen filed two motions, both of which the court denied as being untimely. Sustrick also had previously requested to appear at the hearing by telephone. The court denied the request to appear by telephone as being unworkable, given the large number of parties interested in the trust and the petition. Stephen contends the circuit court violated his due process rights by ruling on the petition without his participation at the evidentiary hearing and by refusing to hear his motions. Stephen also argues the circuit court improperly ignored his factual allegations such that the court’s factual findings are clearly erroneous. We affirm.

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Victoria Ward

Case No.: 2015AP2638-CR

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

Focus: Ineffective Assistance of Counsel

Victoria Ward appeals from a judgment of conviction for keeping a drug house and possession of heroin with intent to deliver, both as a party to a crime. She also appeals orders denying her postconviction motions. She argues that the trial court erred with regard to two evidentiary decisions: excluding testimony she wished to elicit to impeach a witness and admitting testimony about a gun the police found hidden under her mattress. She also argues that she is entitled to an evidentiary hearing on her claim of ineffective assistance of counsel, which is based on counsel’s allegedly inadequate efforts to impeach the witness. Finally, she argues that she is entitled to a new trial in the interest of justice. We disagree and affirm

WI Court of Appeals – District III

Case Name: Rolando Xavier Sanchez v. Lorrie Suzanne Hoffman

Case No.: 2016AP282

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

Focus: Court Error – Child Placment

Lorrie Hoffmann appeals the child placement portion of a judgment dissolving her marriage to Rolando Sanchez. Hoffmann argues the circuit court erroneously exercised its discretion by: (1) making a placement decision that was both prospective and contingent; (2) basing its “prospective” placement decision on what would, by the time of the “prospective” placement, be outdated recommendations rather than “present” information; (3) failing to give Hoffmann equal time to present her case; and (4) failing to maximize the amount of time the children would spend with each parent. We reject Hoffmann’s arguments and affirm the judgment.

WI Court of Appeals – District III

Case Name: Jill A. Dudas v. David G. Dudas

Case No.: 2016AP326

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

Focus: Divorce

David Dudas appeals from a divorce judgment. He argues the circuit court erred by declining to award him periods of physical placement with his three minor children without first finding that such placement would endanger the children’s physical, mental, or emotional health. He also argues the circuit court erroneously exercised its discretion with respect to property division, maintenance, and child support. We reject each of David’s arguments. We modify the divorce judgment to correct an apparent oversight and, as modified, affirm.

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Dan J. Drexler

Case No.: 2016AP534-CR

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

Focus: Sentencing – Sentence Credit

Dan Drexler appeals an order denying his motion for additional sentence credit. Because we conclude the circuit court correctly denied the motion, we affirm the order.

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Joseph K. Larson

Case No.: 2016AP1002-CR

Officials: Hruz, J.

Focus: OWI – Court Error – Motion to Suppress

Joseph Larson appeals a judgment of conviction for third-offense operating a motor vehicle while intoxicated (OWI). He argues the circuit court erred by denying his motion to suppress evidence. That motion was based on postarrest issues regarding use of the Informing the Accused form and administration of a breath test. We affirm.

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Matthew A. Seward

Case No.: 2016AP1248-CR

Officials: Hagedorn, J.

Focus: OWI – Waiver of Right To Counsel

In 2016, Matthew Seward was charged with his third offense of operating a motor vehicle while intoxicated (OWI). In order to avoid the enhanced penalty, Seward moved to collaterally attack his secondoffense 2006 conviction for OWI in which he represented himself and pled no contest. Seward’s collateral attack motion argued he did not knowingly, intelligently, and voluntarily waive his right to counsel in the 2006 proceeding. A few years earlier, Seward had also been charged with a thirdoffense OWI and similarly attacked the 2006 OWI conviction on the same grounds. The court in that case saw no defect in the 2006 colloquy and denied relief. Seward then sought leave to appeal, which we denied. However, at trial, Seward was found not guilty on the merits, obviating any challenge to or appeal of the circuit court’s ruling on his collateral attack The circuit court in this case suggested it saw the 2006 colloquy differently; it pointed out what it believed were some real deficiencies. However, the court concluded that Seward’s current collateral attack on his 2006 conviction was barred by collateral estoppel (now more commonly called issue preclusion) because of the previous ruling on the issue. Seward sought leave to appeal, which we have now granted. The sole issue we address is whether Seward has made a prima facie case that he did not knowingly, intelligently, and voluntarily waive his right to counsel, thus shifting the burden to the State to prove in an evidentiary hearing that his waiver was constitutionally valid. Seward has not, in our judgment, made a prima facie case. Therefore, he was not entitled to an evidentiary hearing. Because we reject the substance of Seward’s claim, we need not address the circuit court’s conclusion that issue preclusion barred Seward’s motion. Additional facts will be discussed as relevant below

WI Court of Appeals – District II

Case Name: Jean M. Kearns v. Steven M. Kearns

Case No.: 2016AP1407

Officials: Reilly, P.J.

Focus: Marital Settlement Agreement – Court Error  – Sanctions

Jean M. Breuer appeals from a trial court order holding Steven M. Kearns in contempt for his failure to make a final cash payment as directed under the property division portion of the parties’ marital settlement agreement (MSA). Breuer challenges the propriety of the court’s sanction. Breuer brought this case to us as a one-judge notice of appeal, under WIS. STAT. § 752.31(2). Under subsec. (2), the only applicable paragraph is para. (h), applicable to “[c]ases involving contempt of court under [WIS. STAT.] ch. 785.” Sec. 752.31(2)(h). We review a court’s use of its contempt power under an erroneous exercise of discretion standard. Benn v. Benn, 230 Wis. 2d 301, 308, 602 N.W.2d 65 (Ct. App. 1999). Based on our standard of review, we conclude that the trial court did not err in its choice of sanctions.

WI Court of Appeals – District I

Case Name: Milwaukee Police Association et al v. City of Milwaukee

Case No.: 2015AP2375

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

Focus: Court Error – Ordinance Amendment

The Milwaukee Police Association and its President, Michael Crivello, and the Milwaukee Professional Firefighters Association, Local 215, and its President, David Seager, Jr., (collectively, “the Unions”), appeal a circuit court order granting summary judgment to the City of Milwaukee and denying the Police Association’s motion for summary judgment. The Unions argue that the court erred in dismissing their complaints. More specifically, the Unions argue that, in amending a City Charter ordinance affecting the “Annuity and Pension Board of the City of Milwaukee Employes’ Retirement System” (“the pension board”), the City violated the rights of retirement system members to maintain the existing size, composition, and manner of election of the pension board. Based on controlling precedent, Stoker v. Milwaukee County, 2014 WI 130, 359 Wis. 2d 347, 857 N.W.2d 102, we conclude that the City was entitled to amend the size, composition, and manner of election of the pension board on a prospective basis, as it did here, and therefore the circuit court properly dismissed the Unions’ complaints. Accordingly, we affirm

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Faith N. Reed

Case No.: 2016P1609-CR

Officials: Blanchard, J.

Focus: Motion to Suppress

Faith Reed appeals a judgment of conviction for misdemeanor possession of a controlled substance and misdemeanor bail jumping. She contends that the circuit court erred in denying her motion to suppress evidence obtained after an unlawful police entry to her apartment unit. I conclude that the entry was lawful, because the officer entered the unit after receiving uncoerced, unequivocal, and specific consent to enter from someone with actual or apparent authority to give consent. Accordingly, I affirm.