Weekly Case Digests – December 10 – December 14, 2018

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Courthouse News Service v. Dorothy Brown

Case No.: 18-1230

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

Focus: 1^st Amendment Violation and Jurisdiction

Plaintiff-appellee Courthouse News Service (“CNS”) seeks injunctive relief under 42 U.S.C. § 1983, arguing that the First Amendment requires Dorothy Brown, Clerk of the Circuit Court of Cook County, Illinois, to release newly filed complaints to the press at the moment of receipt by her office—not after processing. Neither the Court of Appeals for the Seventh Circuit nor the Supreme Court of the United States provides the press with this sort of instant access to court filings. Instead, in our court and apparently in the Supreme Court, as well, the clerks’ offices undertake certain administrative processing before a filing is made publicly available, giving our practices a similarity to the practices in state court challenged in this case. That fact would make it unusual, and perhaps even hypocritical, for us to order a state court clerk to provide such instant access on the basis of the same Constitution that applies to federal courts. Adhering to the principles of equity, comity, and federalism, we conclude that the district court should have abstained from exercising jurisdiction over this case. See O’Shea v. Littleton, 414 U.S. 488, 499 (1974); Rizzo v. Goode, 423 U.S. 362, 379–80 (1976); SKS & Associates, Inc. v. Dart, 619 F.3d 674, 678–80 (7th Cir. 2010). We therefore reverse the district court’s order granting a preliminary injunction and order this action dismissed without prejudice.

Reversed and Remanded

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7^th Circuit Court of Appeals

Case Name: Richard N. Bell v. Vacuforce, LLC

Case No.: 18-1159; 18-1368

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

Focus: Copyright Infringement – Attorney Fees

Richard Bell brought a copyright infringement lawsuit against Vacuforce, LLC, accusing it of publishing his photograph of the Indianapolis skyline on its website without a license. Vacuforce hired attorney Paul Overhauser to defend it. The parties quickly settled, so the federal lawsuit was dismissed with prejudice.

That was not the end of the story. Overhauser then moved to recover attorney fees from plaintiff Bell. He argued that since the settlement produced a dismissal with prejudice, Vacuforce was the “prevailing party” for purposes of fees under the Copyright Act, 17 U.S.C. § 505. The district court considered Overhauser’s motion frivolous and misleading. The court denied the motion and ordered two monetary sanctions against Overhauser: one under Federal Rule of Civil Procedure 11 and another under 28 U.S.C. § 1927. Overhauser appeals both sanctions, but we affirm both of them.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Darick Hudson

Case No.: 18-1130

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

Focus: Sentencing – Supervised Release

Darick Hudson pleaded guilty to possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). On appeal, Hudson challenges two aspects of the written judgment entered by the district court, each relating to conditions of his supervised release.

First, Hudson asserts a condition prohibiting “excessive use of alcohol” must be clarified, as “excessive” is not defined and therefore vague. As a matter of common practice, the presentence investigation report (“PSR”) includes a number of potential conditions of supervised release, with radio buttons the probation officer checks to indicate those recommended to the district court at sentencing.

Next, Hudson challenges a condition restricting his travel during supervised release. At the sentencing hearing, the district court stated, “Once Mr. Hudson is released from custody, he will be directed to remain within the jurisdiction in which he is being supervised, unless he is granted permission to leave.” Hudson’s attorney requested the condition include Indiana because that is where Hudson’s wife lives, expressing some uncertainty himself about “what the districts are there.” In response, the district court stated this condition would “include the district where [Hudson’s] wife resides as well.” But the written judgment simply states, “(14) you shall remain within the jurisdiction where you are being supervised, unless granted permission to leave by the court or a probation officer.”

Before concluding, we note two other points. First, the government’s argument that Hudson somehow waived his objections to the above conditions is without merit. Waiver requires an intentional relinquishment of a known right, and “we are cautious about interpreting a defendant’s behavior as intentional relinquishment.” United States v. Barnes, 883 F.3d 955, 957 (7th Cir. 2018). Here, both conditions in the written judgment diverge from the district court’s oral sentence. During the sentencing hearing, defense counsel reasonably understood the district court as incorporating the definition of “excessive use of alcohol” employed by the PSR.

Second, we remind future litigants of Rule 35(a) of the Federal Rules of Criminal Procedure, which provides, “the court may correct a sentence that resulted from arithmetical, technical, or other clear error” within 14 days of sentencing. This appeal might have been avoided had the written judgment been reviewed promptly and the inconsistencies brought to the district court’s attention.

Therefore, we REMAND WITH INSTRUCTIONS that the written judgment be amended to include: (1) for purposes of discretionary condition number 7 of Hudson’s supervised release, a definition of “excessive use of alcohol” as having a blood alcohol concentration greater than 0.08, and (2) for purposes of discretionary condition number 14, the language, “you shall remain within the judicial district where you are being supervised and the judicial district in which your wife resides, unless granted permission to leave by the court or a probation officer.” Subject to those two corrections, we AFFIRM the judgment of the district court in all other respects.

Reversed and Remanded in part. Affirmed in part.

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7^th Circuit Court of Appeals

Case Name: Michael N. Thomas v. Raymond Anderson, et al.

Case No.: 15-2830

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

Focus: Retaliation Claim

Michael Thomas, an Illinois prisoner formerly confined at Hill Correctional Center, alleged that prison guards attacked him with excessive force and that the beating and subsequent disciplinary proceedings were in retaliation for lawsuits and grievances he filed. He sued the guards and other prison officials seeking damages under 42 U.S.C. § 1983. In the course of pretrial proceedings, the district judge required the parties to stipulate to the events preceding the attack and ruled that certain inmate witnesses must appear, if at all, by video conference. The judge also declined Thomas’s request for recruited counsel, determining that he was competent to litigate the suit pro se. At trial the judge entered judgment as a matter of law for the defendants on all claims except those asserting excessive force by two officers. The jury decided those claims against Thomas.

On appeal Thomas contests the judge’s evidentiary rulings, the decision not to recruit counsel, and the partial judgment for the defendants as a matter of law. Because Thomas’s trial testimony allowed for a permissible inference of retaliation, the judge should not have taken the retaliation claims from the jury. We reverse the judgment on those claims. In all other respects, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Ronald De Coster v. Waushara County Highway Department, et al.

Case No.: 18-2387

Officials: WOOD, Chief Judge, and EASTERBROOK and KANNE, Circuit Judges.

Focus: Attorney Fees – Preclusion

When Waushara County set out to improve a rural highway, a dispute erupted about who owned a tract of land on which Ronald DeCoster had erected a fence. The County maintained that it owned the land or at least had a transportation easement that required the fence’s removal; DeCoster insisted that the land was his and refused to take down the fence. Litigation in state court was settled for a $7,900 payment from the County to DeCoster—who then sought more than $110,000 in a attorneys’ fees and other expenses, relying on Wis. Stat. §32.28. The state judge awarded about $31,000, ruling that any outlay after the County offered the $7,900 was unreasonable and improvident. The court of appeals affirmed. Waushara County v. DeCoster, 2015 WI App 37 ¶¶18–20.

DeCoster then sued the County in federal court, seeking an award under 42 U.S.C. §§ 4651–55, part of the Uniform Relocation Assistance and Real Property Acquisition Act, which conditions federal grants for highway projects on states’ providing assurance that they will compensate affected landowners for reasonable attorney, appraisal, and engineering fees. The district court ruled that the Act does not provide a private right of action, 2018 U.S. Dist. LEXIS 90440 (W.D. Wis. May 30, 2018), and DeCoster filed this appeal. We do not decide that question, because DeCoster had to present his claim in the state suit.

Preclusion is an affirmative defense, see Fed. R. Civ. P. 8(c)(1), and was invoked by the County—though imperfectly. DeCoster asked the federal court to award him more money than the state judge had been willing to do. The County invoked preclusion as a defense, to the extent that DeCoster’s claim rested on state law, and the district judge agreed. 2018 U.S. Dist. LEXIS 90440 at *10–12. The County’s reference to preclusion, and the district court’s decision, were enough to alert DeCoster to the problem in seeking state-court litigation expenses in a second suit, so we do not see any obstacle to treating all of his current theories as barred by the state court’s judgment. The court that decides the merits is the right forum to resolve requests for attorneys’ fees and other expenses of litigation.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: St. Croix County v. Kimberly L. Severson

Case No.: 2017AP1111

Officials: HRUZ, J.

Focus: OWI – 6^th Amendment Violation

Kimberly Severson appeals a circuit court order denying her request to vacate the second of two 2001 first-offense operating while intoxicated (OWI) convictions based upon the court’s lack of competency to enter the judgment of conviction and the denial of her constitutional right to counsel. Her request was made while she faced a seventh-offense OWI charge in a different county.

We agree with the County that Severson forfeited any competency objection. We also agree with the County that Severson had no constitutional right to counsel when she twice faced the penalties—albeit, incorrectly—for a first-offense OWI. As such, she was not deprived of her right to counsel. In all, we affirm.

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WI Court of Appeals – District I

Case Name: IFS Filing Systems LLC v. 11225 Heather LLC, et al.

Case No.: 2017AP1376

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

Focus: Eviction – CAM Charges

IFS Filing Systems LLC appeals from the trial court’s order, following a trial to the court. This case involves a landlord/tenant dispute that resulted in a judgment of eviction and an award of damages. 11225 Heather LLC is the owner of a commercial building located in Milwaukee, Wisconsin. When Heather purchased the property, the tenant in the building was Integrated Filing Solutions LLC. Integrated subsequently assigned the lease to IFS.

Heather filed a small claims eviction action alleging that IFS breached the lease by failing to pay the management fee portion of the rent and by failing to provide financial statements. IFS then filed a large claims action seeking damages and declaratory judgment. IFS alleged that Heather had breached the lease by charging common area maintenance (CAM) fees and sought declaratory judgment that it had a right to purchase the property. The trial court consolidated the two actions for trial. IFS subsequently filed an amended complaint to include claims against Brennan Investment Group LLC and added new claims against Heather.

Following a trial to the court, the trial court (1) granted a writ of eviction and awarded damages of $83,586.07 to Heather, (2) held that Heather proved its breach of contract and tortious interference with contract claims against IFS and awarded damages of $1.25 million, (3) awarded attorney fees of $184,262.58 to Heather pursuant to the lease terms, (4) denied IFS’s claims against Brennan Investment for strict responsibility and negligent misrepresentation, and (5) denied IFS’s claims against Heather for breach of contract and contract reformation.

On appeal, IFS argues that the trial court erred regarding each of its holdings. IFS states that while this case involves various claims, it revolves around four main issues: (1) a dispute over CAM charges; (2) Heather’s claims that IFS did not provide financial statements; (3) Heather’s misrepresentations by omissions at the time of the assignment of the lease; and (4) IFS’s right to purchase the premises for $4.15 million. For the reasons stated below, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Robert James Pope, Jr.

Case No.: 2017AP1720-CR

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

Focus: Court Error – Trial Transcripts

The State appeals the order of the postconviction court granting Robert James Pope, Jr.’s motion for a new trial. Pope was convicted by a jury of two counts of first-degree intentional homicide, as a party to the crime, on May 31, 1996. See WIS. STAT. §§ 940.01 and 939.05 (1995-96).  On July 2, 1996, the trial court sentenced Pope to two terms of life imprisonment, without parole.

Although trial counsel and Pope signed the WIS JI—CRIMINAL SM33 (Information On Postconviction Relief) indicating that Pope intended to seek postconviction relief and that trial counsel would timely file the required notice, there is no evidence that a notice of intent to pursue postconviction relief was timely filed. On September 16, 1997, Pope filed the first of his numerous pro se motions and appeals seeking to extend the time to file a notice of intent to seek postconviction relief and reinstatement of his direct appeal rights. On July 21, 2014, Pope filed a Knight petition for a writ of habeas corpus.

Ultimately, on August 16, 2016, the State and Pope’s appellate counsel stipulated and jointly moved this court for reinstatement of Pope’s direct appeal deadlines under WIS. STAT. RULE 809.30, and for an order extending the deadline to file a notice of intent to pursue postconviction relief and dismissal of his Knight petition. By order dated September 29, 2016, this court reinstated Pope’s direct appeal rights and dismissed his petition for a writ of habeas corpus.

On March 7, 2017, Pope filed a postconviction motion seeking a new trial on the grounds that the court reporters who transcribed the trial proceedings in 1996 no longer had their notes and, therefore, they could not provide transcripts for Pope’s trial. The postconviction court granted Pope’s motion, and this appeal followed.

On appeal, the State argues that the postconviction court erred as a matter of law in granting a new trial based only on the absence of a trial transcript, without requiring Pope to make the requisite threshold showing that he has one or more colorable claims of “reversible” error that the transcripts might sustain. We conclude that Pope has failed to assert a facially valid claim of error and, therefore, reverse the postconviction court’s order and reinstate Pope’s conviction.

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WI Court of Appeals – District III

Case Name: Connie Goss v. Chippewa County

Case No.: 2017AP1865

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

Focus: Breach of Contract – Promissory Estoppel

Connie Goss appeals a summary judgment granted in favor of Chippewa County (the County), her former employer. Goss brought claims against the County for wrongful discharge, breach of contract, and promissory estoppel after she resigned from her employment position. Goss contends the circuit court erred by concluding, as a matter of law, that she voluntarily resigned from her position and was not constructively discharged. We disagree and affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Garrion L. Smith

Case No.: 2017AP2462-CR

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

Focus: Ineffective Assistance of Counsel

Garrion Smith appeals an amended judgment of conviction for aggravated battery and for fourth-offense operating a motor vehicle while under the influence of an intoxicant. He also appeals an order that denied in part his motion for postconviction relief. Smith contends he was denied his constitutional right to effective assistance of counsel when his trial attorney failed to file a motion for presentence plea withdrawal on his behalf. We disagree and affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Donald F. Rick

Case No.: 2018AP41-CR

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

Focus: Abuse of Discretion – Plea Withdrawal

Donald Rick appeals a judgment convicting him of first-degree intentional homicide. He argues the circuit court erroneously exercised its discretion by denying his presentence motion for plea withdrawal. He also argues the court erred by denying that motion without first holding an evidentiary hearing. We conclude the court properly denied Rick’s motion and did not err by failing to hold an evidentiary hearing. We therefore affirm.

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WI Court of Appeals – District II

Case Name: Rodi C. Adams v. Julia I. Adams

Case No.: 2017AP1896

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

Focus: Divorce – Maintenance

Rodi C. Adams appeals from a judgment of divorce from Julia I. Adams. He raises several issues relating to maintenance, property division, and the finalization of the divorce. For the reasons that follow, we affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. George L. Brown

Case No.: 2017AP2199-CR

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

Focus: Ineffective Assistance of Counsel

George Brown appeals a judgment of conviction for first-degree reckless injury with a dangerous weapon and circuit court orders denying his postconviction motion for a new trial and his motion for reconsideration. Brown argues that the circuit court erred in instructing the jury and in excluding evidence of the victim’s prior violent acts. Brown also contends that he received ineffective assistance of counsel. We reject these arguments and affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Christopher P. Glodowski

Case No.: 2017AP2393-CR

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

Focus: Probable Cause – Suppression of Evidence

Christopher Glodowski appeals a circuit court judgment convicting him of possession of child pornography. Glodowski contends that evidence obtained from a search of his home should be suppressed because the search warrant application failed to establish probable cause that evidence of child pornography would be found there. We disagree and affirm.

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WI Supreme Court Digests

WI Supreme Court

Case Name: State of Wisconsin v. Johnny K. Pinder

Case No.: 2018 WI 106

Focus: Motion to Suppress – GPS Data Evidence

This case is before the court on certification from the court of appeals, pursuant to Wis. Stat. § 809.61 (2015-16). The court of appeals certified the following question: If a search warrant issued under Wis. Stat. § 968.12 for the placement and use of a GPS tracking device on a motor vehicle is not executed within five days after the date of issuance per Wis. Stat. § 968.15(1) is the warrant void under § 968.15(2), even if the search was otherwise reasonably conducted?  In short, this question requires the court to decide if an otherwise reasonably conducted search warrant issued for the placement and use of a Global Positioning System (“GPS”) tracking device on a motor vehicle is subject to Wis. Stat. §§ 968.15 and 968.17(1).

We conclude that a search warrant issued for the placement and use of a GPS tracking device on a motor vehicle, but not executed within five days after the date of issuance per Wis. Stat. § 968.15 or timely returned under Wis. Stat. § 968.17(1), is not void if the search was otherwise reasonably conducted, because it is not a warrant issued “for the purpose of seizing designated property or kinds of property” under Wis. Stat. § 968.12(1). It is not a warrant that seeks a “document” or “electronic data” under the control of the vehicle owner as is required under Wis. Stat. § 968.13 and thus, is not subject to the execution and return provisions of §§ 968.15 and 968.17(1). Such a warrant for GPS tracking is not issued pursuant to a statute, but instead is issued pursuant to the court’s inherent authority and thus, must comply only with the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Wisconsin Constitution. Because the GPS warrant in this case was otherwise constitutionally sufficient, the evidence obtained as a result of the warrant is not subject to suppression. Therefore, we affirm the circuit court.

Affirmed

Concur: Kelly, J., concurs, joined by R.G. Bradley, J.

Dissent:

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