Weekly Case Digests — April 10-14, 2017

Listen to this article

7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: United States of America v. Lena Rae Haslage; United States of America v. Taungra Nicole Toney

Case No.: 16-3095; 16-3196

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

Focus: Sex Offender Registration

In Nichols v. United States, 136 S.Ct. 1113 (2016), the Supreme Court held that a sex offender was not required under the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2250, to update his registration in the state where he had been residing, after he left his home and moved to a new place. In Nichols, the new place was outside the United States, in the Philippines. The two cases we have consolidated for disposition on appeal present the more conventional scenario of a person who moves from one state in the United States to another—in Lena Rae Haslage’s case, from Wisconsin to Washington State, and in Taungra Nicole Toney’s case, from Wisconsin to Minnesota. In both cases, the district courts dismissed the indictments for improper venue. The government has appealed. We conclude, however, that the district courts properly applied Nichols and that their judgments must be armed.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Kimberly Hively v. Ivy Tech Community College of Indiana

Case No.: 15-1720

Officials: WOOD, Chief Judge, and BAUER, POSNER, FLAUM, EASTERBROOK, RIPPLE, KANNE, ROVNER, WILLIAMS, SYKES, and HAMILTON, Circuit Judges.

Focus: Title VII

Title VII of the Civil Rights Act of 1964 makes it unlawful for employers subject to the Act to discriminate on the basis of a person’s “race, color, religion, sex, or national origin … .” 42 U.S.C. § 2000e-2(a). For many years, the courts of appeals of this country understood the prohibition against sex discrimination to exclude discrimination on the basis of a person’s sexual orientation. The Supreme Court, however, has never spoken to that question. In this case, we have been asked to take a fresh look at our position in light of developments at the Supreme Court extending over two decades. We have done so, and we conclude today that discrimination on the basis of sexual orientation is a form of sex discrimination. We therefore reverse the district court’s judgment dismissing Kimberly Hively’s suit against Ivy Tech Community College and remand for further proceedings.

Reversed and Remanded

Full Text

7^th Circuit Court of Appeals

Case Name: Juan Carlos Barragan-Ojeda v. Jeff Sessions

Case No.: 16-2964

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

Focus: Petition for Asylum – New Evidence

Juan Carlos Barragan‐Ojeda, a native and citizen of Mexico, entered the United States without authorization in 2013. He was apprehended at the border and requested asylum. Appearing pro se before the immigration judge (“IJ”), he claimed eligibility for asylum because a Mexican criminal gang had persecuted him. At the conclusion of his testimony, he briefly mentioned that he had been the victim of discrimination in employment because he was effeminate, but, when questioned by the IJ, he denied that he was gay.  The IJ denied asylum, and Mr. Barragan‐Ojeda appealed to the Board of Immigration Appeals (“Board” or “BIA”). There, represented by counsel, Mr. Barragan‐Ojeda filed an additional affidavit asserting facts not before the IJ: he claimed that he was gay and that he had been persecuted be‐ cause of his sexual orientation. The Board adopted and af‐ firmed the IJ’s denial of asylum on the ground asserted in the original application. With respect to the new ground, the Board treated the appeal as a motion to remand and deter‐ mined that the requirements for such a motion were not sat‐ isfied. Mr. Barragan‐Ojeda now petitions for review in this court. He submits that the IJ denied him due process in the conduct of the proceedings and that the Board erred in deny‐ ing him asylum on the basis of his sexual orientation. We deny the petition for review. Mr. Barragan‐Ojeda’s due process challenge is premised on the IJ’s conduct of the hearing; this sort of claim must be presented to the Board be‐ fore it can be presented here, and Mr. Barragan‐Ojeda did not do so. In any event, nothing in the record suggests that the IJ’s conduct of his hearing evinced the kind of impatience and bias that might be characterized as a violation of due process of law. The Board correctly evaluated the new evidence submit‐ ted by Mr. Barragan‐Ojeda under the standards applicable to a reopening. It correctly denied relief because he submitted no evidence to establish that his new claim was previously unavailable.

Petition Denied

Full Text

7^th Circuit Court of Appeals

Case Name: George D. Hirmiz v. New Harrison Hotel Corp.,

Case No.: 16-3915

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

Focus: Failure to Accommodate – ADA

George Hirmiz, a front‐desk clerk at a Travelodge Hotel, was fired after being caught on video sleeping in the hotel lobby while a fight broke out among several guests. He sued the hotel under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., claiming that his employer had failed to accommodate a malady that he had contracted as a result of long‐term exposure to high levels of electromagnetic voltage at the hotel; had discriminated against him because of his disorder; and finally had fired him in retaliation for his having complained about the ho‐ tel’s voltage levels to the Occupational Safety and Health Administration. The district court granted summary judg‐ ment in favor of the hotel on the ground that Hirmiz had failed to present evidence that he is disabled within the meaning of the Americans with Disabilities Act, that he’d engaged in any protected activity before his termination (an essential element of his ADA retaliation claim), or that the complaint he’d filed with OSHA had played any role in his termination.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Jonathan Arnold v. Leticia Villarreal

Case No.: 14-3204

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

Focus: Frivolous Suit & Appeal

In the fall of 2004, Jonathan Arnold and Leticia Villarreal exchanged marriage vows in California in a ceremony solemnized by a priest and a rabbi. But they failed to file their marriage license with the county recorder within 10 days of the ceremony as required by California law. Shortly before the license expired, the county recorder sent a letter informing them that the license had not yet been filed and reminding them that they needed to file it to complete the legal process. The couple did nothing and the license expired unfiled. Although they were not legally married, the couple remained together for about three years, had a child, and purchased a condo in California. By the summer of 2007, their relationship had deteriorated, and they separately filed for divorce—she in California, he in Illinois. The divorce proceedings were terminated when they stipulated that they were never married. Arnold then sued Villarreal in federal court in Chicago on various fraud theories. He claimed that she tricked him into believing the two were legally married to induce him to give her gifts, including the California condo. The district court entered summary judgment for Villarreal, characterizing the suit as “frivolous.” Frivolous is an apt description. First, the undisputed facts show that Villarreal told Arnold early on that she suspected they weren’t legally married. Indeed, she insisted that they get a new marriage license and do the whole thing over. They obtained a new license but did nothing further. Second, even if we accept that at some point along the way Villarreal lulled Arnold with reassurances that they were legally married, Arnold was not justified in relying on her representations. He knew, because the county recorder had told them in writing, that the marriage license had not been filed as required by California law. Accordingly, we affirm the district court’s judgment. We also grant Villarreal’s motion for sanctions against Arnold for filing a frivolous appeal.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Mark A. Weiss v. Wayne Barribeau, et al

Case No.: 16-3039

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

Focus: Premature Dismissal – 8^th Amendment Violation

Mark Weiss, a Wisconsin inmate, claims in this suit under 42 U.S.C. § 1983 that Department of Corrections employees failed to prevent a February 26, 2014, assault by his cellmate that resulted in a broken ankle for Weiss, and that they left his broken ankle untreated for months in violation of the Eighth Amendment to the Constitution, which of course forbids cruel and unusual punishments. The district court granted summary judgment for the defendants on the ground that Weiss had failed to exhaust his administrative remedies before suing, as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a).

Reversed and Remanded

Full Text

7^th Circuit Court of Appeals

Case Name: Thom D. Howell v. Shawn Smith

Case No.: 16-1988

Officials: WOOD, Chief Judge, and RIP – PLE and WILLIAMS, Circuit Judges.

Focus: 4^th Amendment Violation – Qualified Immunity

On May 15, 2011, Officer Shawn Smith of the Highland, Indiana Police Department received a call from his dispatcher, alerting him to a road rage incident involving the discharge of a firearm. He later came upon a car matching the description and conducted a “high‐risk traffic stop.” Officer Smith placed Mr. Howell, the occupant of the car, in handcuffs and detained him until other officers brought the alleged victim to the scene. The victim positively identified Mr. Howell and his vehicle as involved in the road rage incident. Nonetheless, the officers found no weapon and decided to release Mr. Howell. The whole episode lasted approximately thirty minutes. Mr. Howell initially brought this action in state court, alleging that the officers’ treatment had aggravated a preexisting shoulder condition, which became worse with time and required multiple surgeries. Following the transfer of the proceedings from state to federal district court, Officer Smith moved for summary judgment on the ground of qualified immunity. The district court denied the motion, and Officer Smith filed this interlocutory appeal.

We respectfully disagree with the district court’s decision to deny Officer Smith’s immunity claim. In our view, Officer Smith’s decision to place Mr. Howell, then implicated in a serious crime involving the discharge of a weapon, in handcuffs and to keep him in handcuffs until satisfied that he was not a threat did not violate the Fourth Amendment. Therefore, un‐ der the doctrine of qualified immunity, the federal count in the complaint must be dismissed. Accordingly, we reverse the judgment of the district court and remand the case for further proceedings.

Reversed and Remanded

Full Text

7^th Circuit Court of Appeals

Case Name: Title Industry Assurance Company, R.R.G.

Case No.: 15-3310

Officials: EASTERBROOK and HAMILTON, Circuit Judges, and PEPPER, District Judge

Focus: Insurance Coverage – Duty to Defend

This appeal illustrates a recurring issue for liability insurers and their insureds: how to determine whether the insurer owes a duty to defend its insured when a claim is first asserted against the insured, before the insurer knows the underlying facts. The insured here was Chicago Abstract Title Agency LLC, which was in the title and escrow services business. In 2008, Chicago Abstract was sued in state court by a title insurance company and two financial firms. Chicago Abstract tendered these lawsuits to its “errors and omissions” liability insurer, plaintiff Title Industry Assurance Company, R.R.G., known in this case as TIAC. TIAC then faced a choice. It could (a) defend Chicago Abstract with‐ out reservation; or (b) defend while reserving its rights; or (c) seek a declaratory judgment concerning the scope of cover‐ age. TIAC could also (d) decline to defend, but only if the al‐ legations in the complaints against Chicago Abstract clearly fell outside the scope of the insurance policy, and then only at its peril. Under Illinois law, when a liability insurer unjustifiably refuses to defend a suit against its insured, the insurer will be estopped from later asserting policy defenses to coverage. TIAC declined to defend the suits. The suits proceeded and years passed without further communications between TIAC and its insured. In 2014, one of the state court plaintiffs, Coastal Funding, LLC, filed a fourth amended complaint against Chicago Abstract. An attorney appointed by TIAC then made a belated appearance in that case. At about the same time, TIAC filed this diversity jurisdiction action in federal court, seeking a declaration that coverage was unavailable primarily because of two exclusions in the policy. Chicago Abstract did not defend in the federal case (the company had been involuntarily dissolved in 2009), but two of the state‐ court plaintiffs—Coastal Funding and First American Title In‐ surance Company—appeared in this federal case as defend‐ ants. To avoid confusion, we refer to these two firms as the Claimants.

Affirmed

Full Text

WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Carter T. Hopson

Case No.: 2015AP2265-CR

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

Focus: Sentencing – Sentence Credit

Carter Hopson appeals a judgment of conviction for several drug offenses and an order denying his postconviction motion. Hopson contends he is entitled to sentence credit on the present conviction for time he spent in jail after his extended supervision for a prior offense was revoked. We conclude that revocation and the concomitant reconfinement sentence order severed the connection between his confinement and the present charges, such that he was no longer incarcerated “in connection with the course of conduct for which sentence was imposed” in this case. See WIS. STAT. § 973.155(1)(a) (2013-14).1 Accordingly, we reject Hopson’s argument that the severing event was his arrival at the prison where he would be serving the reconfinement term prior to his sentencing in this case, which arrival occurred twenty-two days after he was sentenced upon revocation. Hopson also argues he is entitled to plea withdrawal because the circuit court impermissibly participated in plea negotiations. The conduct giving rise to Hopson’s “participation” argument involved the circuit court’s pretrial efforts to ensure that Hopson was aware of, and had personally rejected, all prior plea offers from the State. We conclude the circuit court’s mere act of confirming on the record that the defendant had received and personally rejected all plea offers the state had made—apparently to forestall a subsequent challenge to any resulting conviction based on Missouri v. Frye, 566 U.S. 133 (2012), or State v. Ludwig, 124 Wis. 2d 600, 369 N.W.2d 722 (1985)—does not amount to judicial participation in plea negotiations. We therefore affirm the judgment of conviction and order denying postconviction relief. However, during our review of this case, we discovered defense counsel had possibly miscalculated the number of days Hopson had spent in confinement in connection with the present charges, and, consequently, the amount of sentence credit Hopson is owed. We therefore remand this matter to the circuit court to ascertain whether the judgment contains a clerical error and, if so, to correct it. See infra n.4.

Full Text

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Kyle Kevin Nelson

Case No.: 2015AP2448-CR

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

Focus: Motion to Suppress

Kyle Nelson appeals his judgment of conviction for possession with intent to deliver less than 200 grams of tetrahydrocannabinol (THC). Nelson also appeals an order denying his motion to suppress evidence gathered during a warrantless search of his dwelling. We affirm.

Full Text

WI Court of Appeals – District I

Case Name: Seaway Bank and Trust Company v Dessie L. Brumfield, at al

Case No.: 2015AP2451

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

Focus: Foreclosure

Dessie L. Brumfield appeals from judgments granting foreclosure and replevin to plaintiff Seaway Bank and Trust Company. Brumfield also appeals orders appointing a receiver and denying her motion for post-judgment relief. She seeks discretionary reversal and a new trial pursuant to WIS. STAT. § 752.35 (2015-16) on the grounds that the real controversy was not fully tried because her trial counsel did not object to the admission of insufficiently authenticated business records and failed to raise affirmative defenses and counterclaims on her behalf. We disagree and affirm.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Cordale Justin Gilmore

Case No.: 2015AP2573-CR

Officials: Kessler, Brennan and Brash, JJ.

Focus: Ineffective Assistance of Counsel

Cordale J. Gilmore appeals a judgment convicting him of felon in possession of a firearm, as a repeater. He also appeals an order denying his postconviction motion without a hearing. Gilmore argues that: (1) he received ineffective assistance of trial counsel because his lawyer did not

challenge the stop and search of the car in which he was riding; (2) he received ineffective assistance of trial counsel because his lawyer did not challenge his admission to police that the gun was his; and (3) there was insufficient evidence presented at trial to show that he possessed the gun. We affirm.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. David L. Johnson

Case No.: 2015AP2605-CR

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

Focus: Ineffective Assistance of Counsel

David L. Johnson appeals a judgment of conviction of one count of aggravated battery and one count of false imprisonment following a jury trial. He also appeals the order denying his motion for postconviction relief in which he claimed ineffective assistance of counsel and alleged multiple sentencing errors. We affirm

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsinv. Jason John Matter

Case No.: 2016AP145-CR

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

Focus: Sentencing Modification – Ineffective Assistance of Counsel

Jason John Matter appeals a judgment of conviction entered upon his guilty pleas to one count of using a computer to facilitate a child sex crime and one count of second-degree sexual assault of a child. He also appeals an order denying his postconviction motion for resentencing or sentence modification. He claims that his trial counsel was ineffective at sentencing and that the circuit court erroneously exercised its sentencing discretion. We reject his claims and affirm

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Kendel Jabar King

Case No.: 2016AP319-CR

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

Focus: Court Error – Sufficiency of Evidence

Kendel Jabar King appeals the circuit court’s judgment convicting him of possession of cocaine with intent to deliver, as a party to a crime. King argues: (1) the circuit court misused its discretion in permitting a detective to provide expert testimony about slang or coded language used in drug transactions; and (2) there was insufficient evidence to support the conviction. We affirm.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Paul Phonisay

Case No.: 2016AP344-CR

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

Focus: Sentencing Relief

Paul Phonisay, pro se, appeals an order denying his motion for sentencing relief and an order denying reconsideration. We conclude that his claims are procedurally barred, and we affirm

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Simmie Omar Howard

Case No.: 2016AP425-CR

Officials: Kessler, Brash and Dugan, JJ.

Focus: Motion for New Trial – Admission of Evidence

Simmie Omar Howard appeals from an amended judgment of conviction for one count of strangulation and suffocation as domestic abuse and one count of felony bail jumping, contrary to WIS. STAT. §§ 940.235(1), 968.075(1)(a)1., and 946.49(1)(b) (2013-14). Howard also appeals from an order denying his postconviction motion for a new trial. Howard argues that the trial court committed plain error at trial when it admitted evidence concerning a domestic violence form allegedly signed by the victim when she was interviewed by the police. We conclude that the admission of the evidence was not plain error, and that even if it was, the error was harmless. Therefore, we affirm.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsinv. Eric D. Walker

Case No.: 2016AP480-CR

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

Focus: Sentencing Credit

Eric D. Walker appeals a judgment of conviction and a postconviction order. The only issue is whether the circuit court properly denied him sentence credit for the days he spent in custody after he signed a personal recognizance bond but before the circuit court imposed sentence upon

him. Because Walker remained in custody during the disputed periods as a consequence of juvenile court proceedings for delinquent acts distinct from his crime, we affirm

Full Text

WI Court of Appeals – District I

Case Name: Man H. Watson v. Julie E. Watson

Case No.: 2016AP588

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

Focus: Abuse of Discretion – Divorce – Child Placement

Man H. Watson, pro se, appeals the circuit court’s judgment divorcing him from Julie E. Watson. Man argues the circuit court misused its discretion in awarding Julie primary placement of their two young children. He contends that the circuit court: (1) failed to give adequate weight to Julie’s interference with his relationship with the children; (2) improperly considered his abusive behavior toward Julie in denying him primary physical placement; and (3) should have ordered a placement schedule that would allow the children access to both parents on a regular basis. We affirm.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Terence Darrell Brewer

Case No.: 2016AP1322-CR

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

Focus: Sentencing – Sentence Modification

Terence Darrell Brewer appeals from a judgment of conviction, entered upon his guilty pleas to four different counts, and from an order of the circuit court that denied his postconviction motion. Brewer contends he is entitled to sentence modification because of a new factor and disparity with co-defendant Antonio Johnson’s sentence, and to resentencing because the circuit court relied on inaccurate information. We reject Brewer’s arguments and affirm.

Full Text

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Terrence L. Perkins

Case No.: 2016AP1427-CR

Officials: Stark, P.J.

Focus: OWI – Reasonable Suspicion

Terrence Perkins appeals a judgment convicting him of second-offense operating a motor vehicle while intoxicated (OWI) and misdemeanor bail jumping. Perkins argues the officer who stopped his vehicle lacked reasonable suspicion or probable cause to believe he had committed a traffic violation. We conclude the officer had reasonable suspicion to stop Perkins’ vehicle, and, accordingly, we affirm.

Full Text

WI Court of Appeals – District II

Case Name: Victory Valley Church, Inc., et al v. Purported victory Valley Church

Case No.: 2015AP866

Officials: Neubauer, C.J., Reilly, P.J., and Gundrum, J.

Focus: Declaratory Judgment Action

Victory Valley Church, Inc. (Victory) was incorporated in 1988 and maintained a small membership over the years. In 2013, a dispute arose among two factions over the control of the corporation. Plaintiff Appellants (hereafter, the “Olsons”) brought a declaratory judgment action seeking a declaration that they were the lawful officers and members of the corporation. Defendant-Respondents (hereafter, the “Rangeloffs”) joined in the request for the declaration but asserted they were the legal officers and members of the corporation. The court held a trial and found in favor of the Rangeloffs. The Olson faction, upset with the court’s decision, accuses the court of meddling in church affairs and violating the First Amendment of the United States Constitution by involving itself in “ecclesiastical practices.” We affirm as the circuit court did not interfere in any “ecclesiastical practices”; the court simply answered the question the Olson faction asked the court to answer.

Full Text

WI Court of Appeals – District I

Case Name: Archie A. Talley v. Mustafa Mustafa

Case No.: 2015AP2356

Officials: Reilly, P.J., Gundrum and Hagedorn, JJ.

Focus: Duty to Defend- Indemnification

Archie Talley appeals from an order granting Auto Owners Insurance Company’s (Auto Owners’) motion for summary and declaratory judgment and dismissing Auto Owners from this action. The circuit court determined Auto Owners does not owe Mustafa Mustafa or the other named defendants a duty of defense or indemnification in relation to an alleged altercation at Mustafa’s business, Burleigh Food Market (the store), on July 24, 2009. According to the court, the complaint and factual record indicate that if defendant “John Doe”—an alleged “agent[], employee[], or representative[]” of Mustafa—struck Talley, it was done intentionally, and because the injury to Talley was caused by an intentional act, there is no coverage under Mustafa’s Auto Owners insurance policy. We conclude the circuit court erred in granting summary and declaratory judgment to Auto Owners and dismissing it from this action. Talley’s complaint alleged Mustafa negligently trained and supervised “John Doe,” who the parties subsequently identified as Keith Scott. Based upon the language of the policy at issue, a reasonable insured in the position of Mustafa would expect to be covered for such a claim, whether founded upon a negligent or intentional underlying act by Scott. On a related matter addressed by the parties, we conclude there is a genuine issue of material fact as to whether Scott was an employee of Mustafa or otherwise had a special relationship with him such that Mustafa had a duty to train and supervise Scott with due care. We reverse and remand for further proceedings.

Recommended for publication

Full Text

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Christopher J. Triolo

Case No.: 2015AP1808-CR

Officials: Lundsten, Sherman and Blanchard, JJ.

Focus: Ineffective Assistance of Counsel

A jury found Christopher J. Triolo guilty of one count of second-degree sexual assault of a child and one count of felony bail jumping. Triolo’s first trial ended in a mistrial, and he was convicted after a second trial. Before the second trial, the circuit court denied Triolo’s motion to

dismiss based on a violation of his constitutional right to a speedy trial. In a postconviction motion, Triolo argued that his trial counsel was ineffective for not arguing that the second trial was barred by double jeopardy. The circuit court denied Triolo’s postconviction motion. Triolo appeals, raising both double jeopardy and speedy trial arguments. We affirm.

Full Text

WI Court of Appeals – District Iv

Case Name: State of Wisconsinv. Patrick E. Miller

Case No.: 2015AP2663-CR

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

Focus: Ineffective Assistance of Counsel

Patrick Miller appeals a judgment of conviction for theft from a financial institution, as a party to a crime, contrary to WIS. STAT. § 943.81 (2013-14), and an order of the circuit court denying his postconviction motion for a new trial on the ground of ineffective assistance of counsel. Miller contends that his trial counsel was ineffective because counsel failed to investigate prior to trial statements by the State’s key witness. We affirm for the reasons explained below.

Full Text

WI Court of Appeals – District IV

Case Name: State of Wisconsinv. Nanci L. Gavin

Case No.: 2016AP4870-CR

Officials: Lundsten, Sherman and Blanchard, JJ.

Focus: Jury Instruction – Sufficiency of Evidence

Nanci Gavin appeals the circuit court’s judgment convicting her, after a jury trial, of one count of operating a vehicle to flee an officer and three counts of obstructing an officer. Gavin argues that: (1) the evidence was insufficient to support a guilty verdict on the operating-a-vehicle-to-

flee charge; (2) errors in the jury instructions deprived Gavin of a fair trial; (3) the exclusion of evidence relating to Gavin suffering from post-traumatic stress disorder (PTSD) violated Gavin’s right to present a defense; and (4) the combined effect of instructional and evidentiary errors prevented the real controversy from being fully tried. We reject Gavin’s arguments, and affirm.

Full Text

WI Court of Appeals – District IV

Case Name: Cle A. Gray, Jr. v. Robert Humphreys,

Case No.: 2016AP584-CR

Officials: Kloppenburg, P.J.

Focus: Motion for Contempt

Cle Gray, Jr., appeals pro se the circuit court’s order denying Gray’s motion for contempt. Gray moved the court of his criminal conviction to hold Robert Humphreys, the warden of the institution at which Gray was incarcerated at the time Gray filed the motion, in contempt of the amended judgment of conviction because the institution was deducting what Gray believed were excessive amounts from his prison funds. Specifically, Gray argued that the institution improperly deducted amounts for restitution from both his prison wages and “gift monies” that he received while in prison, in excess of a 25% cap that he asserted the judgment placed on deductions from his prison wages only. I affirm, because the amended judgment of conviction on its face defeats Gray’s argument.

Full Text

WI Court of Appeals – District IV

Case Name: Menard, Inc. v. Rock River Power Sports, Inc.

Case No.: 2016AP921

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

Focus: Verbal Contract – Court Error – Money Judgment

Rock River Power Sports, Inc., appeals a money judgment in favor of Menard, Inc. We affirm.

Full Text

WI Court of Appeals – District IV

Case Name: County of Dodge v. Alexis N. Unser

Case No.: 2016AP2172

Officials: Lundsten, J.

Focus: OWI – Suppression of Evidence

Alexis Unser appeals the circuit court’s judgment convicting her of operating a motor vehicle while under the influence of an intoxicant. During the stop that led to this charge, the officer transported Unser to another location, about six miles away from the initial stop, in order to perform field sobriety tests. Unser argues that she was unlawfully transported outside the vicinity of the stop and, on that basis, seeks suppression of evidence and reversal of her conviction. I reject Unser’s argument, and affirm.

Full Text

WI Supreme Court

WI Supreme Court

Case Name: State of Wisconsin v. Stanley J. Maday, Jr.

Case No.: 2017 WI 28

Focus: Ineffective Assistance of Counsel

On January 15, 2013, following a jury trial, Maday was convicted of three counts of first-degree sexual assault of a child. Maday moved for postconviction relief, arguing that he received ineffective assistance of counsel because: (1) his counsel failed to object to two questions the prosecutor asked Catherine Gainey (“Gainey”), the social worker who conducted a cognitive graphic interview with the child victim in this case, and (2) his counsel should not have withdrawn an objection to the introduction of evidence about Maday’s job-related training in the use of weapons and the use of force. We hold that Gainey’s testimony about the absence of indications during the cognitive graphic interview, either that K.L. had been coached or that K.L. was being dishonest, does not violate the Haseltine2 rule, and is therefore admissible. We so hold for three reasons. First, Gainey’s testimony was limited to her observations of indications of coaching and dishonesty. Second, by limiting her testimony to indications of coaching and dishonesty, Gainey did not provide a subjective opinion as to K.L.’s truthfulness. Third, testimony, such as Gainey’s, may assist the jury. Accordingly, we conclude that Maday’s counsel was not ineffective for failing to object to Gainey’s testimony and counsel’s performance was therefore not deficient. Furthermore, we conclude Maday’s counsel was not ineffective for withdrawing his objection to the introduction of evidence of Maday’s job-related training in the use of weapons and the use of force because Maday was not prejudiced by that testimony.

The decision of the court of appeals is, therefore, reversed.

Concur: Bradley,

Dissent: Bradley, Abrahamson

Full Text

WI Supreme Court

Case Name: State of Wisconsin v. Glenn T. Zamzow

Case No.: 2017 WI 29

Focus:  Confrontation Clause

We review a published opinion of the court of appeals,1 which determined that use of a deceased police officer’s recorded statements at a suppression hearing2 did not violate Glenn T. Zamzow’s rights under the Confrontation Clause of the Sixth Amendment or the Due Process Clause of the Fourteenth Amendment to the United States Constitution. We hold that the Confrontation Clause protects a defendant’s right to confrontation at trial but not at suppression hearings, and admission of the deceased officer’s recorded statements during the suppression hearing did not deprive Zamzow of due process. We therefore affirm.

Concur:

Dissent: Abrahamson, Bradley

Full Text

WI Supreme Court

Case Name: Dr. Randall Melchert, et al v. Pro Electric Contractors, et al

Case No.: 2017 WI 30

Focus:  Governmental Immunity  – Statutory Interpretation

This case requires us to address the extent to which governmental immunity protects a private contractor implementing a construction design chosen by a governmental entity. We hold that Pro Electric is immune from liability for severing the sewer lateral because it acted in accordance with reasonably precise design specifications adopted by a governmental entity in the exercise of its legislative, quasi-legislative, judicial, or quasi-judicial functions. This case also requires us to interpret and apply certain provisions of the Digger’s Hotline statute, codified at Wis. Stat. § 182.0175. Petitioners allege that Pro Electric caused their damages not only by severing the sewer lateral, but also by backfilling the excavation without inspecting the sewer lateral for damage and allowing repairs to be made, as required by § 182.0175(2)(am)6.-6m.4 Pro Electric is not immune from liability as to this second allegation, because DOT did not provide Pro Electric with reasonably precise specifications for inspecting sewer laterals for damage before backfilling pursuant to § 182.0175(2)(am)6.-6m. Ultimately, however, we affirm the

circuit court’s grant of summary judgment on the factual record before us. We do so because the undisputed material facts do not support a reasonable inference that Pro Electric failed to comply with its duties under § 182.0175(2)(am).

Concur: Abrahamson

Dissent: Bradley, Kelly

Full Text

WI Supreme Court

Case Name: State of Wisconsinv. Brian I. Harris

Case No.: 2014AP1767

Focus:  5^th Amendment Violation

The question before the court is whether the State compelled Petitioner, Brian Harris, to be a witness against himself in violation of the Fifth Amendment to the United States Constitution and article I, section 8 of the Wisconsin Constitution . . . Detective Buchanan’s inquiry into whether Mr. Harris would like to make a statement was diagnostic in nature, not inquisitorial, and the circumstances confirm that it was not the functional equivalent of an interrogation. Thus, Mr. Harris’ statement that “They caught me man, I got nothing else to say” followed a voluntary decision to speak with Detective Buchanan.  Because the State did not compel Mr. Harris to be a witness against himself, the judgment of the court of appeals is affirmed.

Concur: Ziegler, Gableman

Dissent: Abrahamason

Full Text

US Supreme Court

Case Name: Dean v. United States

Case No.: 15-9260

Focus: Sentencing – Mandatory Minimums

Section 924(c) does not prevent a sentencing court from considering a mandatory minimum imposed under that provision when calculating an appropriate sentence for the predicate offense.

“Sentencing courts have long enjoyed discretion in the sort of information they may consider when setting an appropriate sentence, and they continue to do so even as federal laws have required them to evaluate certain factors when exercising their discretion. Pepper v. United States, 562 U. S. 476, 487–489. Section 3553(a) specifies the factors courts are to consider when imposing a sentence. They include “the nature and circumstances of the offense and the history and characteristics of the defendant,” as well as “the need for the sentence imposed” to serve the four overarching aims of sentencing: just punishment, deterrence, protection of the public, and rehabilitation. The §3553(a) factors are used to set both the length of separate prison terms, §3582(a), and an aggregate prison term comprising separate sentences for multiple counts of conviction, §3584(b). As a general matter, these sentencing provisions permit a court imposing a sentence on one count of conviction to consider sentences imposed on other counts. The Government argues that district courts should calculate the appropriate term of imprisonment for each individual offense, disregarding whatever sentences a defendant may face on other counts. Only when determining an aggregate prison sentence, the Government maintains, should a district court consider the effect of those other sentences. Nothing in the law requires such an approach. There is no reason that the §3553(a) factors may not also be considered when determining a prison sentence for each individual offense in a multicount case. The Government’s interpretation is at odds not only with the text of those provisions but also with the Government’s own practice in “sentencing package cases.” Greenlaw v. United States, 554 U. S. 237, 253.”

Reversed and Remanded

Concur:

Dissent:

Full Text

Case Name: McLane Co., Inc. v. Equal Employment Opportunity Commission

Case No.: 15-1248

Focus: EEOC Subpoena – Enforcement

A district court’s decision whether to enforce or quash an EEOC subpoena should be reviewed for abuse of discretion, not de novo.

“Both factors that this Court examines when considering whether such decision should be subject to searching or deferential appellate review point toward abuse-of-discretion review. First, the longstanding practice of the courts of appeals is to review a district court’s decision to enforce or quash an administrative subpoena for abuse of discretion. Title VII confers on the EEOC the same authority to issue subpoenas that the National Labor Relations Act (NLRA) confers on the National Labor Relations Board (NLRB). During the three decades between the NLRA’s enactment and the incorporation of its subpoena-enforcement provisions into Title VII, every Circuit to consider the question had held that a district court’s decision on enforcement of an NLRB subpoena is subject to abuse-of-discretion review. Congress amended Title VII to authorize EEOC subpoenas against this uniform backdrop of deferential appellate review, and today, nearly every Court of Appeals reviews a district court’s decision whether to enforce an EEOC subpoena for abuse of discretion. This “long history of appellate practice,” Pierce v. Underwood, 487 U. S. 552, 558, carries significant persuasive weight. Second, basic principles of institutional capacity counsel in favor of deferential review. In most cases, the district court’s enforcement decision will turn either on whether the evidence sought is relevant to the specific charge or whether the subpoena is unduly burdensome in light of the circumstances. Both of these tasks are well suited to a district judge’s expertise. The first requires the district court to evaluate the relationship between the particular materials sought and the particular matter under investigation—an analysis “variable in relation to the nature, purposes and scope of the inquiry.” Oklahoma Press Publishing Co. v. Walling, 327 U. S. 186, 209. And whether a subpoena is overly burdensome turns on the nature of the materials sought and the difficulty the employer will face in producing them— “ ‘fact-intensive, close calls’ ” better suited to resolution by the district court than the court of appeals. Cooter & Gell v. Hartmarx Corp., 496 U. S. 384, 404. Other functional considerations also show the appropriateness of abuse-of-discretion review. For one, the district courts’ considerable experience in making similar decisions in other contexts, see Buford v. United States, 532 U. S. 59, 66, gives them the “institutional advantag[e],” id., at 64, that comes with greater experience. Deferential review also “streamline[s] the litigation process by freeing appellate courts from the duty of reweighing evidence and reconsidering facts already weighed and considered by the district court,” Cooter & Gell, 496 U. S., at 404, something particularly important in a proceeding designed only to facilitate the EEOC’s investigation.”

Vacated and Remanded

Concur: Roberts, Kennedy, Thomas, Breyer, Alito, Kagan

Dissent: Ginsburg

Full Text