Please ensure Javascript is enabled for purposes of website accessibility

Weekly Case Digests — August 7 to August 11, 2017

By: WISCONSIN LAW JOURNAL STAFF//August 11, 2017//

Weekly Case Digests — August 7 to August 11, 2017

By: WISCONSIN LAW JOURNAL STAFF//August 11, 2017//

Listen to this article

7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Joshua Ray Lanigan v. Nancy A. Berryhill, Acting Commissioner of Social Security

Case No.: 16-2894

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

Focus: Court Error – Sufficiency of Testimony

Joshua Lanigan injured his back at his job in 2009. That same year he hurt his neck in a car accident, and in 2011 he was diagnosed with diabetes. Since then his medical impairments have been complicated by mental illness. Lanigan applied for Supplemental Security Income and Disability Insurance Benefits in March 2012 when he was 38 years old. An Administrative Law Judge (“ALJ”) found his physical and mental impairments to be severe but not disabling and denied benefits. The Appeals Council denied review, and the district court upheld the ALJ’s decision. See 42 U.S.C. § 405(g). We conclude that the case must be returned to the agency for further proceedings because the ALJ misinformed a vocational expert about Lanigan’s residual functional capacity, thus undermining the expert’s testimony that Lanigan could engage in competitive employment.

Reversed and Remanded

Full Text

7th Circuit Court of Appeals

Case Name: Biagio Stragapede v. City of Evanston, Illinois

Case No.: 16-1344

Officials: WOOD, Chief Judge, and EASTERBROOK and SYKES, Circuit Judges

Focus: Motion for Judgment Denied

Biagio Stragapede worked in water services for the City of Evanston for 14 years. In 2009 he suffered a traumatic brain injury at home. The City placed him on a temporary leave of absence during his recovery and rehabilitation. When he was medically cleared to return to work, Stragapede resumed full-time employment with the City. After just a few weeks, however, the City again placed him on administrative leave and later terminated his employment. Stragapede sued for violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq., claiming that the City discriminated against him based on his disability.

The City attacks the judgment in several respects. First, the City challenges the denial of its motion for judgment as a matter of law, arguing that Stragapede was not a qualified person under the ADA because he was unable to perform the essential functions of his job. Alternatively, the City argues that even if Stragapede was qualified, he posed a direct threat to himself and to others, which is a statutory defense to liability. Finally, the City argues that the judge incorrectly calculated the backpay award. We reject these arguments and affirm.

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: United States of America v. Jerry Campbell

Case No.: 15-3869

Officials: EASTERBROOK, SYKES, and HAMILTON, Circuit Judges

Focus: Sentencing Guidelines

The issue in this appeal is whether federal bank robbery by intimidation in violation of 18 U.S.C. § 2113(a) is a crime of violence for purposes of the pre‐2016 federal Sentencing Guideline provision for career of‐ fenders in U.S.S.G. § 4B1.2(a). We have held that federal bank robbery by intimidation satisfies the elements clause of the statutory definition of a crime of violence under 18 U.S.C. § 924(c). United States v. Williams, — F.3d —, No. 16‐3373 (7th Cir. July 27, 2017); United States v. Armour, 840 F.3d 904 (7th Cir. 2016). In this appeal, we hold that federal bank robbery by intimidation is also a crime of violence for the purposes of applying the pre‐2016 versions of the career offender Guideline and affirm the decision of the district court.

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: Chas Harper v. Richard Brown

Case No.: 15-2276

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

Focus: Ineffective Assistance of Counsel

Chas Harper, an Indiana prisoner, seeks habeas relief under 28 U.S.C. § 2254 claiming that his attorney on direct appeal was constitutionally ineffective because he failed to adequately develop an argument that Harper’s sentence warranted revision under Rule 7(B) of the Indiana Rules of Appellate Procedure. Because the argument was underdeveloped, the state appellate court deemed it waived. The court later rejected Harper’s claim on postconviction review that the waiver amounted to ineffective assistance of counsel. Applying the standard announced in Strickland v. Washington, 466 U.S. 668 (1984), the court held that Harper was not prejudiced by the waiver because his sentence was appropriate under state law, so a well-developed Rule 7(B) argument would have failed.

Harper challenges that ruling under § 2254, but his argument is really an attack on the state court’s resolution of a question of state law embedded within its analysis of a Strickland claim. Federal courts are not empowered to review questions of state law under § 2254. Because the state court reasonably applied the Strickland standard, we affirm the district court’s denial of § 2254 relief.

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: Cory Groshek, et al.  v. Time Warner Cable, Inc., et al

Case No.: 16-3355; 16-3711

Officials: BAUER and WILLIAMS, Circuit Judges, and DEGUILIO, * District Judge.

Focus: Sufficient Factual Allegations

In his complaint, Groshek alleged that Appellees violated § 1681b(b)(2)(A)(i). As the predicate for his claimed statutory and punitive damages, he alleged that this violation was willful. See id. § 1681n. Additionally, he alleged that, as a result of the violation of § 1681b(b)(2)(A)(i), Appellees failed to obtain a valid authorization from him before procuring a consumer report, in violation of § 1681b(b)(2)(A)(ii). Appellees moved to dismiss for lack of subject matter jurisdiction, arguing that Groshek lacked Article III standing because he did not suffer a concrete injury; Groshek responded that he suffered concrete informational and privacy injuries. The district court granted Appellees’ motion. This appeal followed.

The Ninth Circuit had factual allegations from which it could infer harm, whereas Groshek alleges none. Unlike the plaintiff in Syed, Groshek presents no factual allegations plausibly suggesting that he was confused by the disclosure form or the form’s inclusion of a liability release, or that he would not have signed it had the disclosure complied with 15 U.S.C. § 1681b(b)(2)(A)(i). We conclude that Groshek has not alleged facts demonstrating a real, concrete appreciable risk of harm. Because he has failed to demonstrate that he suffered a concrete injury, he lacks Article III standing. Accordingly, the judgments of the district courts are AFFIRMED.

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: Derick L. Berry v. Wells Fargo Bank, N.A., et al.

Case No.: 16-3544

Officials: POSNER, KANNE, and SYKES, Circuit Judges  

Focus: Court Error – Claim Preclusion

Berry argues that the district court erred by dismissing his suit on the basis of preclusion. Typically a defendant must specify claim preclusion as an affirmative defense in his answer, to be able to avail himself of it, then file a Rule 12(c) motion for judgment on the pleadings. But Berry’s state‐court filings gave the district court everything it needed in order to be able to rule on the defense, Walczak v. Chicago Board of Education, 739 F.3d 1013, 1016 n. 2 (7th Cir. 2014), and Berry presents no evidence that the district court neglected to consider regarding preclusion. See United States v. Rogers Cartage Co., 794 F.3d 854, 861 (7th Cir. 2015).

Berry argues that he had no chance to present in state court the matters advanced in his federal lawsuit. But he did present them in state court. His federal complaint and his state‐court filings describe the same “group of operative facts,” see Rose v. Board of Election Comm’rs for the City of Chicago, 815 F.3d 372, 375 (7th Cir. 2016). He also argues that the state court wrongly rejected his motion for leave to file an affirmative defense under the Fair Housing Act without a detailed written explanation. But if he was dissatisfied with the state court’s decision or justifications, his remedy was to appeal, not to start over with a new suit. In any event he can’t avoid his previous concession that the two lawsuits de‐ scribe the same “events and actions.” See Parungao v. Com‐ munity Health Systems, 858 F.3d 452, 458–59 (7th Cir. 2017).

Berry argues that claim preclusion should not apply because litigating his federal claims would not automatically nullify the foreclosure sale. See Ross Advertising, Inc. v. Heartland Bank & Trust Co., 969 N.E.2d 966, 975 (Ill. App. 2012). But it would, because the federal claims are designed to change the outcome of the state court proceeding. Berry alleges one set of facts in his second amended complaint that he did not allege in the state court: the search of his public‐housing unit. But these allegations describe conduct by third parties unconnected to Wells Fargo or HSBC, and Berry doesn’t argue that either defendant was responsible for those parties’ actions. Thus although these specific allegations may form the basis for a claim that would not be precluded by the foreclosure judgment, they fail to state a claim against either named defendant.

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: Flaviano Victoria-Faustino v. Jefferson B. Sessions III, Attorney General of the United States

Case No.: 16-1784

Officials: FLAUM, MANION, and WILLIAMS, Circuit Judges

Focus: Sentencing Guidelines

While the government is correct that the INA generally strips us of jurisdiction to consider an appeal of a Final Administrative Removal Order (“FARO”), we retain jurisdiction to determine whether the underlying conviction upon which the FARO is based is an aggravated felony. Therefore, although Victoria‐Faustino failed to respond to the Notice of Intent, we may still consider his arguments that his underlying conviction does not constitute an aggravated felony. Because we find that Victoria‐Faustino’s 2000 conviction was not properly classified as an aggravated felony, we grant the petition for review and remand to the Board of Immigration Appeals for further proceedings.

Remanded

Full Text

7th Circuit Court of Appeals

Case Name: City South Bend, Indiana v. South Bend Common Council, et al.

Case No.: 15-3315; 15-3385

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

Focus: Court Error – Judgment Modification

We have cross-appeals. The Common Council asks us to hold that all of the recordings may be disclosed and the individual parties that none may be. The City did not appeal but also does not defend the judgment in full. It asks us to hold, contrary to the district court, that the recordings on February 4, 2011, are unlawful. The City does not discuss the venerable rule that only a party that has filed a timely appeal may obtain a modification of the judgment. See Greenlaw v. United States, 554 U.S. 237 (2008). And none of the parties’ briefs discusses the significance of the pending state litigation, the fact that one branch of the City of South Bend is suing another, or the fact that before trial the individual parties’ suit had been settled and dismissed. After argument we directed the parties to file briefs on these issues. We now conclude that it is unnecessary to discuss the merits, for reasons that can be stated succinctly.

The judgment of the district court is vacated, and the case is remanded with instructions to dismiss the complaint. The state court now is free to resolve the underlying dispute on its own, without regard to the vacated federal judgment.

Vacated and Remanded

Full Text

7th Circuit Court of Appeals

Case Name: Russell Prevatte v. Steven Merlak

Case No.: 15-2378

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

Focus: Petition for Habeas Corpus Dismissed

Russell Prevatte was convicted of detonating a pipe bomb in an alley that destroyed property and resulted in the death of an innocent bystander, Emily Antkowicz, in violation of 18 U.S.C. § 844(i). If the pipe bomb had not caused a death, at the time of his conviction, the maximum sentence Prevatte could have received for the violation of § 844(i) would have been ten years. However, because the judge found at sentencing that the bomb did cause the death of Ms. Antkowicz, Prevatte was ultimately sentenced to forty-four years’ imprisonment on that count.

We agree with the district court that Prevatte’s petition should be dismissed, but our reasoning is different than that of the district court. First, our court has already found that Burrage is not about whether a judge or jury makes the “death results” finding, but instead clarifies that the underlying crime, in this case the detonation of the bomb, must be a but-for cause of death and not merely a contributing factor to the death. Second, Prevatte could have argued that the government did not prove that the bomb was a but-for cause of death at his trial, as part of his direct appeal or as part of his initial § 2255 motion. No circuit precedent prevented him from making such an argument. Third, and perhaps, most importantly, the unrebutted evidence at trial established that the bomb was the but-for cause of Ms. Antkowicz’s death. So Prevatte’s enhanced sentence is neither illegal nor a miscarriage of justice. For these reasons, the district court was correct in holding that Prevatte’s petition for habeas corpus should be dismissed.

Affirmed and Remanded

Full Text

7th Circuit Court of Appeals

Case Name: Michele Nischan v. Stratosphere Quality, LLC, et al.

Case No.: 16-3464

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

Focus: Sufficiency of Evidence

Michele Nischan alleges that she was fired from her job for filing a sexual‐harassment complaint. Consequently, she brought a litany of claims in the Northern District of Illinois, suing three defendants: Stratosphere Quality, LLC—her employer; Chrysler Group LLC— her employer’s client; and Abbas Sabbah—her purported harasser. The district court dismissed her claims. We respectfully disagree with the court’s decision regarding Nischan’s sexual‐harassment claim against Stratosphere: Nischan offered sufficient evidence supporting that claim to avert Stratosphere’s motion for summary judgment. And to that extent, we reverse and remand the case. But we otherwise affirm.

Reversed and Remanded in part. Affirmed in part

Full Text

7th Circuit Court of Appeals

Case Name: Coexist Foundation, Inc., v. Michael Fehrenbacher, et al.

Case No.: 16-3332

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

Focus: Sufficiency of Evidence

This case involves the unfortunate meeting of a hapless retired baseball player seeking to invest his earnings, a self‐described “con man” who claims to be reformed, persons running a Ponzi scheme, and a man who “had no business handling the investment finances of others.” Coexist Foundation, Inc. v. Fehrenbacher, 2016 WL 4091623, *4 (N.D. Ill. Aug. 2, 2016). The con man is the plaintiff, and it is doubtful that he is truly reformed. The man who had no business handling the investments of others is the primary defendant. The Ponzi scheme was run by a Florida company called Assured Capital, which is not a party to this suit. The person who lost everything is, of course, the unlucky baseball player, whose father was attempting to manage his son’s finances when he fell victim to the scheme here. After a bench trial, the district court determined that the defendants violated a Florida law prohibiting the sale of unregistered securities. The court ordered rescission in the hopes that some of the money would get back to the baseball player, who had obtained a judgment against the con man in separate litigation. The defendants now appeal and we affirm.

On appeal, Fehrenbacher argues that the allegations of the unregistered securities count were not proven. In particular, he asserts that there was no evidence regarding a “security” or a sale of a security; that no scheme or transaction took place in Florida as required by the statute; that Fehrenbacher received no consideration for the deal; that judgment should not have been granted against all defendants; and that the doctrine of unclean hands should have been applied to deprive Coexist of any recovery. Fehrenbacher characterizes his argument as one of statutory interpretation and contends that the standard of review for all issues is therefore de novo. Although we agree that issues of law are reviewed de novo, it is clear from the content of Fehrenbacher’s argument that he is mainly challenging the sufficiency of the evidence presented to the district court on this count. After a bench trial, we review the district court’s factual findings for clear error and its conclusions of law de novo. Fed. R. Civ. P. 52(a)(6); Kelley v. Chicago Park Dist., 635 F.3d 290, 295–96 (7th Cir. 2011). Additionally, we must give “due regard to the trial court’s opportunity to judge the witnesses’ credibility.” Fed. R. Civ. P 52(a)(6).

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: Denny Ray Anderson v. United States of America

Case No.: 15-2683

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

Focus: Plea Agreement – Competency 

Anderson’s plea agreement prevented him from directly appealing his conviction and sentence, but he was nonetheless entitled to file a motion for collateral relief under 28 U.S.C. § 2255. He did so, supporting his motion with two arguments: first, that he was not competent at the time of his guilty plea because of his illnesses and the effects of the medications he was taking; and second, that his attorney provided constitutionally defective assistance for failing to challenge his competence. The district court rejected his petition outright. On appeal, he requests an evidentiary hearing to develop facts related to these interrelated claims. We agree that a hearing is appropriate.

Remanded

Full Text

7th Circuit Court of Appeals

Case Name: Kunta Gray v. Dushan Zatecky, Superintendent, Pendleton Correctional Facility

Case No.: 15-2482

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

Focus: Postconviction Statue of Limitations  – Equitable Tolling

During a drug deal that went bad, shots were fired and Gregory Jones was fatally wounded. The police arrested Kunta Gray for the crime, and a Marion County (Indiana) jury later convicted him, twice, for the murder and associated offenses. The Indiana courts ultimately upheld the convictions, and so Gray filed this action in federal court, seeking a writ of habeas corpus on several grounds. See 28 U.S.C. § 2254. Before we can reach those arguments, however, we must assure ourselves that his petition was timely. It is only if Gray qualifies for equitable tolling, because he filed after the one-year time limit for such petitions. 28 U.S.C. § 2244(d). We agree with the district court that he failed to make the necessary showing, and so we affirm its judgment.

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: Jeffrey Allen, et al. v. City of Chicago

Case No.: 16-1029

Officials: EASTERBROOK, MANION, and HAMILTON, Circuit Judges.

Focus: FLSA Collective Action

This appeal arises from a Fair Labor Standards Act collective action. Plaintiffs are current and former members of the Chicago Police Department’s Bureau of Organized Crime who claim that the Bureau did not compensate them for work they did off-duty on their mobile electronic devices (BlackBerrys). The case was tried to the court, Magistrate Judge Schenkier, presiding by consent under 28 U.S.C. § 636(c). The judge issued detailed findings of fact and conclusions of law in favor of the Bureau, finding that it did not prevent plaintiffs from requesting payment for such nonscheduled overtime work and did not know that plaintiffs were not being paid for it. Plaintiffs appeal, but we find no persuasive reason to upset the judgment of the district court. We affirm the judgment for the Bureau.

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: United States of America v. Cory S. Castetter

Case No.: 17-1327

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

Focus:  Suppression of Evidence  

As Castetter saw things, Michigan’s police lack authority to monitor the location of a car in Indiana, no matter what the Michigan warrant says. Castetter’s fallback argument is that the first warrant pertains to Holst, not him, and that police (whether from Michigan or Indiana) were forbidden to learn who was doing business on his property without obtaining a warrant based on his own activities.  Castetter then entered a conditional plea of guilty, reserving the right to raise the suppression argument on appeal, and was sentenced to 108 months’ imprisonment.

Castetter’s fallback argument is equally weak. True, the first warrant was not based on information about Castetter. But neither did it authorize anyone to learn about the inside of his home, as the infrared device did in Kyllo v. United States, 533 U.S. 27 (2001). All the police learned by monitoring the GPS device was the location of Holst’s car, and Castetter lacked a privacy interest in that location.

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: United States of America v. Donald Maggard, et al.

Case No.: 16-1776; 16-1777; 16-1780; 16-1832

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

Focus: Sufficiency of Evidence and Denial of Pre-trial Motions

The government brought charges related to a methamphetamine‐distribution conspiracy in southern Indiana against nineteen people, fifteen of whom pled guilty to at least one charge. The remaining four—the defendants‐appellants here—went to trial. A jury convicted them.

The defendants raise five arguments on appeal—three concerning the district court’s denial of the defendants’ pre‐ trial motions and two concerning the sufficiency of the evidence considered by the jury. Because the court did not err in denying the pretrial motions and because the evidence that the government presented at trial was sufficient, we affirm.

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: John M. Stephenson v. Ron Neal, Superintendent, Indiana State Prison

Case No.: 16-1312

Officials: BAUER, POSNER, and FLAUM, Circuit Judges

Focus: Ineffective Assistance of Counsel and Jury Instructions

Although in this appeal Stephenson’s lawyer mounts a vigorous challenge to both the murder conviction and the death sentence, the first challenge fails. Not that there isn’t evidence that might have convinced a jury to acquit. There is no evidence that the defendant was at all likely to act up at the penalty phase of his trial, or at any other phase. He’s been in prison for twenty years now, and there is no suggestion that he has behaved violently during that period, and certainly he has not in any of his subsequent court appearances. The fault is certainly not Stephenson’s; it’s his lawyer’s, for failing to object to his client’s having to wear a stun belt, given the absence of any reason to think his client would go berserk in the courtroom. See Wrinkles v. Buss, 537 F.3d 804, 813–15 (7th Cir. 2008).

The possibility that the defendant’s having to wear the stun belt—for no reason, given that he had no history of acting up in a courtroom—contaminated the penalty phase of the trial persuades us to reverse the district court’s denial of Stephenson’s petition for habeas corpus and to remand with directions to vacate his sentence. After the completion of these proceedings, Indiana may choose to seek the death penalty anew and hold a new penalty hearing before a jury without Stephenson wearing the stun belt, or to seek a lesser sentence and hold a penalty hearing before a judge. The court’s refusal to vacate his conviction, however, is affirmed.

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: United States of America v. Douglas D. Jackson

Case No.: 15-3693

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

Focus: Sentencing Guidelines

Douglas Jackson appeals following a jury trial at which he was convicted of three counts of transporting a minor in interstate commerce with the intent that she engage in illegal sexual activity, see 18 U.S.C. § 2423(a), three counts of sex trafficking of a minor, see 18 U.S.C. § 1591(a), and one count of possessing a firearm in furtherance of a crime of violence (sex trafficking of a minor), see 18 U.S.C. § 924(c). The district court sentenced Jackson to 295 months’ imprisonment. He appeals, arguing that his conviction under § 924(c) is invalid because the portion of that statute applicable to his crime is unconstitutionally vague. He also challenges the district court’s conclusion under the United States Sentencing Guidelines that he was a leader or supervisor of the offense, see U.S.S.G. § 3B1.1(1)(c), and that he obstructed justice when he testified on his own behalf, see U.S.S.G. § 3C1.1. For the reasons discussed below, we vacate Jackson’s conviction under § 924(c) and vacate and remand for resentencing.

Vacated and Remanded

Full Text

7th Circuit Court of Appeals

Case Name: Peter Koehn v. Lauri Tobias, et al.

Case No.: 16-3482

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

Focus: Abuse of Discretion

Plaintiff‐appellee Peter Koehn filed suit under 42 U.S.C. § 1983, alleging that Defendants‐appellants Lauri Tobias and Margaret Segerston (Defendants), his former employers, unlawfully retaliated against him for exercising his First Amendment rights. After a series of failed settlement negotiations, the case proceeded to trial, where a jury found in favor of Defendants. After the trial, upon Koehn’s motion, the district court ordered Defendants to pay fees and costs associated with Koehn’s attorney’s preparation for a settlement conference that proved to be unnecessary and futile. This appeal followed.

It is clear that both Koehn and the court interpreted defense counsel’s representations at the status hearing as an indication of Defendants’ current settlement posture. In fact, the court’s order explicitly stated that the suggestion of a range of $150,000 induced the court to schedule the conference. To be sure, as the district court noted, Defendants were free to change that posture before the settlement conference. However, we cannot say that the district court abused its discretion in finding that, by changing their position so drastically without any indication that they intended to do so, Defendants did not participate in the settlement conference in good faith.

Affirmed

Full Text

 

7th Circuit Court of Appeals

Case Name: Patrick Harlan, et al. v. Charles W. Scholz, Chairman, Illinois State Board of Elections, et al.

Case No.: 16-3547; 16-3597

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

Focus: Fourth Amendment Violation – Voting Registration

This is a case of wait‐and‐hurry‐up, rather than its more familiar cousin, hurry‐up‐and‐wait. With just two and a half months before the November 2016 general election, Patrick Harlan, the Republican Party’s candidate for an Illinois congressional seat, and the Crawford County (IL) Republican Central Committee, filed this lawsuit and promptly sought a preliminary injunction against the implementation of a state law that allows voters to register and vote on Election Day itself. Generally speaking, the law gives more options for same‐day registration and voting for residents of counties with populations of 100,000 or more than it does for those who live in smaller counties. The plaintiffs contended that the difference violated their rights under the Fourteenth Amendment’s Equal Protection Clause. The district court agreed with them and issued the injunction; this court granted a stay of that injunction. We now vacate the preliminary injunction altogether.

Vacated and Remanded

Full Text

WI Court of Appeals Digests

WI Court of Appeals – District IV

Case Name: Wingra Redi-Mix, Inc. v. Burial Sites Preservation Board, et al.

Case No.: 2014AP2498

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

Focus: Abuse of Discretion – Sufficency of Evidence

This appeal concerns Wisconsin’s Burial Sites Preservation statute, WIS. STAT. § 157.70 (2015-16), which requires the Director of the State Historical Society to “identify and record in a catalog burial sites in this state and … sufficient contiguous land necessary to protect the burial site from disturbance.” Pursuant to § 157.70(2)(a), the Director added Native American effigy mounds referred to as the Ward Mound Group (the Ward Mounds) to the catalog in 1991. In its present condition, the Ward Mounds consist of a full effigy mound of a bird and a partial effigy mound of a canine. The Ward Mounds are on three acres owned by the Wingra Stone Company, formerly known as Wingra Redi-Mix, Inc., which petitioned the Director in 2010 to remove the Ward Mounds from the catalog pursuant to WIS. ADMIN. CODE § HS 2.03(6). Wingra Stone appealed the Director’s decision to the Burial Sites Preservation Board, which affirmed and adopted in whole the Director’s decision, and the circuit court affirmed the Board. Wingra Stone appeals. For the reasons that follow, we affirm the circuit court’s order affirming the Board’s decision.

On appeal, Wingra Stone argues that the Board unreasonably concluded that Wingra Stone did not present, in the words of the administrative code, “sufficient evidence to indicate that a cataloged site does not contain any burials,” that is, human remains. Wingra Stone also make a series of arguments that attempt to recast its principal argument in alternative terms. We first explain why the record shows that Wingra Stone failed to present sufficient evidence that the Ward Mounds do not contain human remains and why we conclude that substantial evidence supports the Board’s denial of Wingra Stone’s removal petition. We next address and reject Wingra Stone’s arguments in support of its position that it presented sufficient evidence to support its petition for removal. We then address Wingra Stone’s alternative arguments challenging the Board’s decision.

Full Text

WI Court of Appeals – District I

Case Name: Kaitlin Woods Condominium Associates, Inc. v. Nautilus Insurance Company, et al.

Case No.: 2015AP423

Officials: Higginbotham, Sherman and Blanchard, JJ

Focus: Insurance Coverage – Synthetic Stucco Exclusion

This is an insurance coverage dispute between a condominium association and the insurer of a general contractor involving the proper interpretation of a synthetic stucco exclusion in a commercial general liability (CGL) insurance policy. The contractor, Kaitlin Woods, LLC, held a CGL policy issued by Nautilus Insurance Company at a time when the LLC oversaw construction of condominiums now owned by members of the Kaitlin Woods Condominium Association. The Association sued the LLC and Nautilus, alleging that as a result of the LLC’s poor management of the construction projects, and defective work by the LLC’s subcontractors, water leaked through the exteriors of all of the condominium buildings, causing property damage, and therefore, the Association is entitled to recover damages under the policy as a third party.

Nautilus moved for summary judgment in the circuit court, arguing that it has no duty to defend and indemnify the LLC based on an endorsement in the CGL policy that excludes coverage for claims of defective work on any part of the exterior of a building on which an “exterior insulation and finish system” had been applied, as in this case. As shorthand, we refer to the “exterior insulation and finish system” at issue as “synthetic stucco” because the exclusion refers to this term, and we refer to the endorsement as the “synthetic stucco exclusion.” The court agreed with Nautilus in its interpretation of the synthetic stucco exclusion, rejecting the Association’s arguments to the contrary.

On appeal, the Association argues that the synthetic stucco exclusion does not bar coverage for the LLC against the Association’s damage claims. As it did in the circuit court, Nautilus argues that the exclusion bars the Association’s damage claims against the LLC and its subcontractors. We conclude that, under a plain language interpretation, the synthetic stucco exclusion bars coverage for the Association’s claims against the LLC. We therefore affirm.

Full Text

WI Court of Appeals – District IV

Case Name: Wingra Redi-Max, Inc. v. State Historical Society of Wisconsin, et al.

Case No.: 2015AP1632; 2015AP1844

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

Focus: Denial of Burial Sites Permit

This appeal is the second case concerning two Native American effigy mounds called the Ward Mound Group (the Ward Mounds), which were added to the catalog of burial sites by the Director of the State Historical Society in 1991 pursuant to WIS. STAT. § 157.70(2) (2015-16). The Ward Mounds are on three acres, surrounded by a large quarry, all owned by Wingra Stone Company, formerly known as Wingra Redi-Mix, Inc. Wingra Stone petitioned the Director for permission to “disturb” the Ward Mounds pursuant to WIS. STAT. § 157.70(5), for purposes of mining sand and gravel near and, apparently, under the Ward Mounds. The Director referred the petition to the division of hearing and appeals (DHA), which conducted a contested case hearing and denied the petition. Wingra Stone sought judicial review of DHA’s decision in the circuit court, which reversed and remanded the case for additional fact finding consistent with the circuit court’s ruling.

The State Historical Society and the Ho-Chunk Nation appeal and Wingra Stone cross-appeals the circuit court’s decision. The relief Wingra Stone seeks in its cross-appeal is not fully clear. In its cross-appeal brief Wingra Stone requests that we vacate, modify, or remand the decision of DHA for further proceedings consistent with this court’s conclusions. We are uncertain whether Wingra Stone’s cross-appeal arguments are additional arguments in support of the circuit court’s decision, or instead in support of this court issuing an opinion directing DHA to grant Wingra Stone the permit, or both. We need not resolve this uncertainty. For the reasons below, we reject all of Wingra Stone’s arguments challenging DHA’s denial of the permit. Also, for this reason, we need not distinguish between the arguments Wingra Stone makes in its response brief in the appeal and in its cross-appeal briefs. We simply identify and reject each of Wingra Stone’s arguments. Accordingly, we reverse the circuit court’s decision and affirm DHA’s decision denying Wingra Stone’s petition for a permit to disturb the Ward Mounds.

Full Text

WI Court of Appeals – District III

Case Name: 2015AP2261-CR

Case No.: State of Wisconsin v. Brian M. Cooper

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

Focus: Court Error – Abuse of Discretion

Brian Cooper appeals an amended judgment of conviction entered following a jury trial for two counts of first-degree intentional homicide and one count of third-degree sexual assault. He also appeals an order denying his motion for postconviction relief. Cooper argues: (1) his constitutional rights to counsel and due process were violated when the circuit court denied his request to substitute counsel and for an adjournment of the trial; (2) the circuit court erroneously exercised its discretion by excluding certain opinions from his expert witness, Dr. Richard Tovar; and (3) the exclusion of Tovar’s opinions violated his constitutional right to present a defense. We affirm.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Kawane J. Stroyier

Case No.: 2016AP377-CR

Officials: Kessler, Brash and Dugan, JJ.

Focus: Court Error – Motion to Suppress

Kawane J. Stroyier appeals from a judgment of conviction, entered upon a jury’s verdicts, on one count of homicide by negligent handling of a dangerous weapon and one count of possession of a firearm by a felon. Stroyier contends that the circuit court erred when it refused to suppress statements he made to police after invoking his right to counsel and his right to remain silent. We reject Stroyier’s arguments and affirm the judgment.

Full Text

WI Court of Appeals – District III

Case Name: Scott W. Frolik, et al. v. Dale P. Schuebel

Case No.: 2016AP674

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

Focus: Court Error – Abuse of Discretion

Scott Frolik and Richard Busch, Jr., appeal a judgment in favor of Dale Schuebel entered upon a jury verdict finding Schuebel adversely possessed a disputed portion of Frolik’s and Busch’s properties. Frolik and Busch argue the circuit court erroneously exercised its discretion when it allowed Schuebel to present evidence they contend they first had notice of a week before trial, and when the court failed to grant a continuance to allow for additional discovery. We reject their arguments and affirm the judgment.

Full Text

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Derron A. Hudson

Case No.: 2016AP699-CR

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

Focus: 4th Amendment – Search & Seizure

Derron Hudson challenges the scope and duration of a traffic stop that led to his conviction for possession of cocaine, second or subsequent offense. We affirm.

Full Text

WI Court of Appeals – District III

Case Name: Johnson Bank v. Brian K. Bonkoski, et al.

Case No.: 2016AP726

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

Focus: Foreclosure – Subject Matter and Personal Jurisdiction

Brian and Becky Bonkoski, pro se, appeal a judgment of foreclosure on their residential real estate. The circuit court excused Johnson Bank from responding to the Bonkoskis’ discovery requests, denied their request for a jury trial, struck their affirmative defenses, dismissed their counterclaims, and granted Johnson Bank’s motion for summary judgment. The Bonkoskis raise numerous issues challenging the circuit court’s rulings. We reject their arguments and affirm the judgment.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Anthony Germaine Griffis

Case No.: 2016AP1167-CR

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

Focus: Plea Withdrawal

Anthony Germaine Griffis appeals from a judgment of conviction, entered upon his guilty pleas, on one count of robbery with the use of force and one count of taking and driving a vehicle without the owner’s consent, both as a party to a crime. Griffis also appeals from the circuit court order denying his motion to withdraw his pleas. Griffis argues the circuit court introduced a “condition subsequent” to the terms of his plea bargain, and the condition went unfulfilled. We reject Griffis’s argument and affirm the judgment and order.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Samuel Silverstein

Case No.: 2016AP1464-CR

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

Focus: Court Error – Motion to Suppress Evidence Denied

Samuel Silverstein appeals from a judgment of conviction, entered on his guilty plea, for three counts of possession of child pornography. Silverstein first argues that the trial court erred in denying his motion to suppress the evidence recovered from his computer after the search of his home pursuant to a warrant. He contends that the affidavit for the search warrant failed to state probable cause because it was based on “the uncorroborated tip of an anonymous informant.” The informant was Tumblr.com (“Tumblr”), an electronic service provider (“ESP”) required by federal law to report suspected child pornography to the National Center for Missing and Exploited Children (“NCMEC”), which in turn provided the information to the police.

We conclude, based on Wisconsin case law regarding citizen informants found in State v. Paszek, 50 Wis. 2d 619, 630, 184 N.W.2d 836 (1971), and State v. Kerr, 181 Wis. 2d 372, 381, 511 N.W.2d 586 (1994), that a tip from an ESP is properly viewed as one from an identified citizen informant, not an anonymous informant, which therefore establishes the personal reliability requirement in our case law. Additionally, the affidavit here also shows sufficient indicia of observational reliability of the ESP. Therefore, applying the “great deference” we pay to a determination of probable cause, see State v. Anderson, 138 Wis. 2d 451, 469, 406 N.W.2d 398 (1987), we conclude that the warrant issuing magistrate “had a substantial basis for concluding that a search would uncover evidence of wrongdoing.” See id. Accordingly, we uphold the determination.

Recommended for Publication

Full Text

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Craig A. Hron

Case No.: 2016AP956-CR

Officials: Neubauer, C.J., Gundrum and Hagedorn, JJ.

Focus: Ineffective Assistance of Counsel

Craig A. Hron appeals a judgment of conviction entered after a jury found him guilty of four felonies including the attempted first-degree intentional homicide of his ex-girlfriend, T.J., and an order denying his motion for postconviction relief. Hron argues that he was denied the right to effective assistance of counsel because trial counsel failed to (1) request a lesser included offense instruction without first discussing the decision with Hron, (2) present evidence contradicting testimony offered by the State’s witnesses, and (3) object to evidence that T.J. obtained a harassment injunction against Hron after his arrest. We reject Hron’s claims and affirm.

Full Text

WI Court of Appeals – District II

Case Name: Lawrence J. Olson v. Integrity Property and Casualty Insurance Company, et al.

Case No.: 2016AP1311

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

Focus: Summary Judgment

In this homeowner’s insurance dispute, Lawrence J. Olson appeals from a judgment dismissing Olson’s claims against Integrity Property and Casualty Insurance Company (Integrity) and Grange Mutual Casualty Company (Grange). Olson filed a lawsuit alleging sixty-two different claims accusing Integrity of breach of contract, intentional misrepresentation, fraud, intentional infliction of emotional distress, violation of privacy, and violation of the Wisconsin Administrative Code. As we agree with the circuit court that no issues of material fact are present, we affirm the court’s grant of summary judgment on all claims.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Stanley Cleofius Slater

Case No.: 2016AP1355-CR

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

Focus: Plain Error and Ineffective Assistance of Counsel

Stanley Cleofius Slater appeals from a judgment convicting him of armed robbery as party to a crime (PTAC) and an order denying his motion for postconviction relief. He contends that confrontation clause violations warrant a new trial either because of plain error or in the interests of justice or, alternatively, that he received ineffective assistance of counsel such that we should remand for a Machner hearing. We disagree and affirm.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Roy Kennard Weatherall

Case No.: 2016AP1368-CR; 2016AP1369-CR

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

Focus: Court Error – Abuse of Discretion

Trial courts have “broad discretion to admit or exclude evidence[,] … [and] we will upset their decisions only where they have erroneously exercised that discretion.” State v. Nelis, 2007 WI 58, ¶26, 300 Wis. 2d 415, 733 N.W.2d 619 (citation omitted; alteration in original). We will find an erroneous exercise of discretion if the record shows that the trial court failed to exercise its discretion, the facts fail to support its decision, or if the trial court applied the wrong legal standard. State v. Roou, 2007 WI App 193, ¶14, 305 Wis. 2d 164, 738 N.W.2d 173.

Weatherall complains that the State was allowed to ask LG questions on direct that improperly presented evidence to the jury. He contends that, by framing its questions in the form of, “Do you recall telling the police that ___,” the jury heard inadmissible hearsay. Weatherall claims that through that technique, the State was able to impart objectionable information such as that he said he was a pimp; he asked LG to join his group of “girls” and brought up her stripping; he told LG he took girls out of town to prostitute themselves; he told LG he would put her in charge of all the girls if she joined them; LG overheard him tell another girl, Tasha,4 he was going to “beat her ass”; and she later observed Tasha with a black eye after being with Weatherall, although LG earlier had testified that she noticed nothing unusual about Tasha’s appearance. Weatherall challenges the court’s overruling of his counsel’s continuing objection to LG’s testimony as inadmissible hearsay and argues that allowing the jury to hear this back-door hearsay testimony contributed to his convictions.

Full Text

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Jesse U. Felbab

Case No.: 2017AP12-CR

Officials: HAGEDORN, J

Focus: Court Error – Abuse of Discretion

Jesse Felbab appeals from a judgment convicting him of possession of Tetrahydrocannibinois (THC). Felbab moved to suppress evidence obtained during a traffic stop. After a suppression hearing, the circuit court granted the motion. However, the court allowed the State to submit additional evidence in a second suppression hearing, and afterwards, reversed itself and denied Felbab’s motion. On appeal, Felbab maintains that the circuit court erroneously exercised its discretion by allowing the State to submit additional testimony at the second suppression hearing and further argues that the decision to extend the traffic stop was not supported by reasonable suspicion. We disagree and affirm.

Full Text

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Leonard R. Cardenas

Case No.: 2016AP213

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

Focus: Sufficiency of Evidence

Leonard Cardenas appeals a judgment that convicted him of second-degree sexual assault of a child and bail jumping, each as a repeat offender. Cardenas claims: (1) the evidence was insufficient to support the sexual assault conviction; (2) the State improperly struck the only Hispanic juror from the jury panel; and (3) the circuit court admitted improper rebuttal evidence. For the reasons discussed below, we reject each of these contentions and affirm the judgment of conviction.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Deonta L. Benton

Case No.: 2016AP694-CR

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

Focus: Sufficiency of Evidence

Deonta Benton was tried and convicted of felony murder and first-degree recklessly endangering safety, both as a party to the crime. He contends that he is entitled to reversal with no possibility of retrial as to his felony murder conviction because the evidence was insufficient when measured against the factual theory of the case incorporated into part of the felony murder jury instruction as read to the jury just before deliberations. Benton also contends that he is entitled to a new trial on both counts because the prosecutor, over Benton’s objection, presented inadmissible hearsay indicating that Benton threatened one of the State’s key witnesses. We reject both arguments and affirm.

Full Text

WI Court of Appeals – District IV

Case Name: David A. Jackson v. Sylvia Matthews Burwell, U.S. Department of Health and Human Services

Case No.: 2016AP1785

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

Focus: Dog Bite – Damages

David Jackson filed this action alleging that he was bitten by a dog owned by Jeffrey Douglas at Jeffrey’s residence and that Ardyce Douglas, Jeffrey’s mother and the owner of the property where the incident occurred, is liable for the resulting injuries. Ardyce moved for summary judgment dismissing Jackson’s claims against her on the ground that she was not an owner of the dog under WIS. STAT. § 174.02 (2015-16) and, therefore, cannot be held liable for damages for any injuries caused by the dog. The circuit court denied the motion, and Ardyce appeals. We conclude that under controlling law the undisputed facts establish that Ardyce was not an owner under the statute. Therefore, we reverse.

Full Text

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. J.L.B.

Case No.: 2016AP358

Officials: SHERMAN, J.

Focus: Sufficiency of Evidence

J.B. appeals from an order of the circuit court adjudicating him delinquent based upon a finding by the court that he committed first-degree sexual assault with a child under the age of thirteen, contrary to WIS. STAT. §§ 948.02(1)(e) and 939.50(3)(b). J.B. also appeals from the circuit court’s order denying his postdisposition motion for a new trial. J.B. contends that he is entitled to a new trial because the circuit court erred in granting the State’s motion to admit the victim’s videotaped statement and because the evidence was insufficient to support the court’s finding that he committed first-degree sexual assault. For the reasons discussed below, I affirm.

Full Text

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. D.J.A.R.

Case No.: 2017AP52

Officials: LUNDSTEN, P.J.

Focus: Court Error – Abuse of Discretion

D.J.A.R. was adjudicated delinquent for engaging in conduct prohibited by the child sexual assault statute. He appeals the resulting dispositional order, as well as the order denying his motion for postdispositional relief. D.J.A.R. argues that the circuit court proceeded under the wrong statutory subsection, and thus erroneously required D.J.A.R. to register as a sex offender. He also argues that the court erroneously exercised its discretion by not staying this registration requirement.

Full Text

WI Supreme Court Digests

WI Supreme Court

Case Name: Office of Lawyer Regulation v. David V. Moss

Case No.: 2017 WI 82

Focus: Disciplinary Proceeding – Reinstatement of License to Practice Law

We review a report filed by Referee James C. Boll recommending that the court reinstate the license of David V. Moss to practice law in Wisconsin. Upon careful review of the matter, we agree that Attorney Moss’s license should be reinstated, with the conditions described herein. We further agree with the referee that Attorney Moss should be required to pay the full costs of the reinstatement proceeding, which are $3,321.79 as of May 22, 2017.

Petition Granted

Concur:

Dissent:

Full Text

Polls

Should Steven Avery be granted a new evidentiary hearing?

View Results

Loading ... Loading ...

Legal News

See All Legal News

WLJ People

Sea all WLJ People

Opinion Digests