Weekly Case Digests – March 25, 2019 – March 29, 2019

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Peerless Network, Inc., et al. v. MCI Communications Services, Inc., et al.

Case No.: 18-2747

Officials: WOOD, Chief Judge, and BRENNAN and ST. EVE, Circuit Judges.

Focus: Breach of Contract

This case takes us into the complex world of telecommunications, but the question we confront is simple: Was the district court correct to grant partial final judgment under Federal Rule of Civil Procedure 54(b) on some claims, despite their significant factual overlap with pending claims? We conclude that it was not. We also conclude that a genuine issue of fact persists with respect to certain breach-of-contract claims. We therefore vacate the Rule 54(b) judgment on certain counts, dismiss in part for lack of jurisdiction, and otherwise reverse and remand.

Vacated in part. Remanded and Reversed in part.

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7^th Circuit Court of Appeals

Case Name: Anthony Walker v. Ingersoll Cutting Tool Company

Case No.: 18-2673

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

Focus: Title VII Violation – Sufficiency of Evidence

After Anthony Walker was involved in a physical altercation with another employee of Ingersoll Cutting Tools, the company discharged him. He sued Ingersoll, alleging racial discrimination under Title VII and retaliatory discharge under Illinois law. The district court granted summary judgment for Ingersoll on all claims. On appeal, Walker abandoned his Title VII racial discrimination claims. Because Walker did not identify evidence of a causal connection between his termination and conduct protected by Illinois law, we affirm the district court’s grant of summary judgment.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Douglas Holloway v. Soo Line Railroad Company

Case No.: 18-2431

Officials: FLAUM, BARRETT, and SCUDDER, Circuit Judges.

Focus: Wrongful Termination

Douglas Holloway’s year-and-a half long employment with Canadian Pacific ended after he received multiple suspensions for violating safety standards and other work rules. The final chapter came when Holloway sustained an injury in a vehicle collision while not wearing a seatbelt. When combined with Holloway’s prior record of infractions, this new safety-standard violation was enough for the company to terminate Holloway. In his ensuing lawsuit, Holloway alleged he was fired not for violating Canadian Pacific’s rules, but instead for reporting a workplace injury. We agree with the district court that the record evidence does not support his contention and therefore affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Fred Gates v. Board of Education of the City of Chicago

Case No.: 17-3143

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

Focus: Title VII Violation

Plaintiff Fred Gates testified that his direct supervisor, Rafael Rivera, addressed him with the N‐word twice, and once threatened to write up his “black ass.” The district court granted the employer’s motion for summary judgment on Gates’s claim for a racially hostile work environment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e‐2. In granting summary judgment for the defendant‐employer, the district court noted that Gates faced a high bar, “as ‘[t]he workplace that is actionable is one that is ‘hellish.’” Gates v. Board of Education of the City of Chicago, No. 15‐CV‐1394, 2017 WL 4310648, at *13 (N.D. Ill. Sept. 28, 2017), quoting Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1013 (7th Cir. 1997) (alteration in original). The court ultimately decided that Rivera’s comments were not severe or pervasive enough to rise to the level of a hostile work environment, an adverse employment action that could entitle Gates to relief under Title VII. Id. at *15.

Gates is entitled to a trial on his hostile environment case, but he waived or forfeited all of his remaining claims. He argues, though, that he did not forfeit his Title VII retaliation claim in the district court. We disagree. The Board’s motion sought summary judgment on all claims. In opposing summary judgment in the district court, Gates failed to assert that he was subject to a hostile work environment in retaliation for complaining about the discrimination he says he suffered. He did not specifically argue that Rivera or Principal Brandt created a hostile work environment because he reported their discriminatory conduct to Jacob‐El or the EEOC. Gates did argue that he was retaliated against, but only in the form of not being promoted and being written up by Rivera. In his summary judgment memorandum, Gates also discussed two of the instances of racially‐harassing conduct that he used to support his hostile work environment claim—the incident in which Rivera threatened to write up his “black ass” and the library incident in which Rivera used the N‐word. However, he never specifically argued that this conduct was retaliatory. Perhaps Gates could have linked those incidents to his claims of retaliation, but he did not. The district court was not required to address a claim or theory that plaintiff did not assert.

The district court’s grant of summary judgment on Gates’s hostile work environment claim is REVERSED and the case is REMANDED for further proceedings on that claim consistent with this opinion. In all other respects, the judgment of the district court is AFFIRMED.

Reversed and Remanded in part. Affirmed in part.

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7^th Circuit Court of Appeals

Case Name: Danny R. Ruark v. Union Pacific Railroad Company

Case No.: 17-2429

Officials: FLAUM, ROVNER, and SCUDDER, Circuit Judges.

Focus: Court Error – Abuse of Discretion

The Federal Employers Liability Act (FELA), 45 U.S.C. §§ 51-60, was enacted more than a hundred years ago to compensate railroad employees for injuries they receive on the job. Ruark was an employee of the Union Pacific Railroad when a hydraulic rail drill malfunctioned and sprayed him with hot oil. He sought relief under FELA using the legal doctrine of “res ipsa loquitur,” a doctrine that asks a finder of fact to infer liability when (as the Latin is often translated) “the thing speaks for itself.” Because of the burden-shifting nature of the doctrine, it requires some baseline conditions—namely that the defendant was in control of the instrumentality that caused the injury and that the plaintiff was not also negligent. The district court found that these conditions were not met and thus the jury should not be instructed that they could assume that “the matter spoke for itself” under the doctrine. We agree and find that the district court did not abuse its discretion by refusing to grant Ruark a continuance before trial. We affirm on both points.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Derrick W. Johnson

Case No.: 18-2023

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

Focus: Jury Instructions

Derrick Johnson appeals his conviction for possession of a firearm in furtherance of a drug trafficking crime. Police arrested him at a Madison, Wisconsin, bar carrying five hydrocodone pills, two cell phones, gem packs containing marijuana residue, a plastic bag of antihistamine, and a loaded pistol. Johnson pled guilty to possession of a controlled substance with intent to deliver but went to trial on the firearm charge. On appeal, Johnson claims the district court committed reversible error in three ways. First, he claims the jury instructions misstated the law and confused the jury. Second, he contends that the district court should not have admitted the government’s proffered expert testimony. Lastly, Johnson argues the government presented insufficient evidence to support his conviction. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Todd A. D’Antoni v. United States of America

Case No.: 18-1358

Officials: FLAUM, BARRETT, and SCUDDER, Circuit Judges.

Focus: Sentencing Guidelines

Todd D’Antoni received an enhanced sentence under the career-offender provision of the 1990 United States Sentencing Guidelines, based on a prior felony drug conviction and a prior felony “crime of violence” conviction. See U.S.S.G. § 4B1.1 (1990). Relevant here, the provision’s “crime of violence” definition included a residual clause, encompassing any felony “involv[ing] conduct that present[ed] a serious potential risk of physical injury to another.” Id. § 4B1.2(1)(ii). The Guidelines were mandatory as applied to D’Antoni because he was sentenced well before the Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005), which held the Guidelines must be advisory to comply with the Constitution.

At issue in this case is whether D’Antoni’s sentence should nevertheless be affirmed because “conspiracy,” “murder,” and “manslaughter” were listed as crimes of violence in the application notes to the 1990 version of § 4B1.2. Our unanimous en banc decision in United States v. Rollins, 836 F.3d 737 (7th Cir. 2016), answers this question: The application notes’ list of qualifying crimes is valid only as an interpretation of § 4B1.2’s residual clause, and because Cross invalidated that residual clause, the application notes no longer have legal force. Accordingly, D’Antoni is entitled to resentencing.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Nikolay Tantchev, et al.

Case No.: 18-1200; 18-1263

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

Focus: Sufficiency of Evidence

After a six-day trial involving twenty-nine witnesses, a federal jury convicted Nikolay Tantchev of exporting and attempting to export stolen cars, submitting false documents to customs officials, and structuring financial transactions to avoid federal reporting requirements. That same jury acquitted Tantchev’s co-defendant, Batmagnai Chogsom, of charges related to the stolen cars and false documents, but it convicted Chogsom of making a false statement to an IRS agent. The district court sentenced Tantchev to 40 months’ imprisonment and Chogsom to 3 years’ probation.

Both defendants appeal their convictions. Tantchev alleges several errors by the district court at trial, and Chogsom challenges the sufficiency of the evidence against him. We affirm the convictions.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Julio De Lima Silva v. State of Wisconsin, Department of Corrections, et al.

Case No.: 18-2561

Officials:

Focus: Equal Protection Violation

Plaintiff-appellant Julio de Lima Silva, a Brazilian citizen who self-identifies as Latino, worked as a correctional sergeant for the State of Wisconsin, Department of Corrections (“DOC”). His use of force on an inmate triggered an internal review process and ultimately led to his discharge. The individual defendants—Quala Champagne, the Warden of Wisconsin Correctional Center System (“WCCS”), Andrea Bambrough, the Human Resources Director of WCCS, and David Hicks, a Corrections Unit Supervisor at Columbia Correctional Institution—played various roles in that review process. To challenge his discharge, plaintiff filed this lawsuit, bringing discrimination claims against the DOC under Title VII, 42 U.S.C. § 2000e–2(a)(1), (Count I); against the individual defendants and the DOC under 42 U.S.C. § 1983, alleging a violation of the Equal Protection Clause (Counts II and III, respectively); and against all defendants under 42 U.S.C. § 1981 (Count IV). The district court granted defendants summary judgment on all counts. We affirm in part and reverse and remand in part. We reverse the district court’s award of summary judgment to the DOC on plaintiff’s Title VII claim and to Champagne on plaintiff’s equal protection claim brought pursuant to § 1983, and we otherwise affirm the district court’s judgment.

Affirmed

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7^th Circuit Court of Appeals

Case Name: El Hadj Hamidou Barry v. William P. Barr

Case No.: 18-2334

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

Focus: Immigration – Removal Order

El Hadj Hamidou Barry, a native and citizen of Guinea, applied for deferral of his removal from the United States under the United Nations Convention Against Torture. An immigration judge denied Barry’s application because Barry failed to show if removed to Guinea he likely would be tortured. The Board of Immigration Appeals affirmed. Barry now petitions this court for review, claiming if removed to Guinea he will be tortured because of his political and familial affiliations and his sexual orientation. Barry has failed to satisfy his burden to substantiate these claims with evidence, so we deny his petition.

Petition Denied

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: William James Holm v. Dawn Marie Holm

Case No.: 2017AP1838

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

Focus: Divorce – Property Division

William Holm challenges the division of property and maintenance award following his divorce from Dawn Holm. William argues that although the circuit court claimed in the judgment to be dividing the property equally, in fact it divided the property unequally. Regarding the maintenance award, William contends the court intended to provide him the vast majority of the income and divide it 75/25 in William’s favor, but it did not order that result. According to William, only a denial of maintenance would have resulted in the income actually being divided 75/25 as the court intended. We affirm the property division and maintenance award but remand with instructions to correct an ambiguity in the judgment so that it conforms to the court’s oral ruling.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Ashlee A. Martinson

Case No.: 2017AP1889-CR

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

Focus: Abuse of Discretion – Sentencing

Ashlee Martinson appeals a judgment of conviction for two counts of second-degree intentional homicide, as well as an order denying her postconviction motion for resentencing. Martinson and the State entered into a plea agreement whereby the State agreed to amend charges of first-degree intentional homicide to those of second-degree intentional homicide based upon the mitigating circumstance of adequate provocation. Among other things, the adequate provocation defense is premised upon a “complete lack of self-control” on the defendant’s part. See WIS. STAT. § 939.44(1)(a) (2015-16). Given this premise, Martinson argues the circuit court erroneously exercised its discretion at sentencing when it repeatedly stated that Martinson “had a choice” whether to kill the victims.

We reject Martinson’s argument. We conclude that pursuant to the plain language of the relevant statutes, when the State stipulates to amend a first-degree intentional homicide charge to a second-degree offense based upon the mitigating circumstance of adequate provocation, it stipulates not to the fact that adequate provocation existed, but rather to its inability to prove beyond a reasonable doubt that facts supporting such a defense did not exist. Moreover, longstanding sentencing law permits a circuit court to reach its own conclusions about a defendant’s character based upon the information before it. Because the record here contained information sufficient to support the sentencing court’s comments regarding Martinson’s volitional capacity to commit the murders, we affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Deadrian L. Bostick

Case No.: 2017AP1908; 2017AP1909

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

Focus: Ineffective Assistance of Counsel

The circuit court denied Deadrian L. Bostick’s WIS. STAT. § 974.06 (2017-18) plea-withdrawal motion without an evidentiary hearing. The motion alleged ineffective assistance of counsel, Brady violations, and that the postconviction court erred in determining that his sentence was not illegal. We affirm the order denying Bostick’s motion.

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WI Court of Appeals – District III

Case Name: Timothy W. Miller v. Angela L. Carroll

Case No.: 2017AP2132

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

Focus: Custody and Placement Modification

Timothy Miller appeals an order granting Angela Carroll’s motion for modification of custody and physical placement of their minor son, Bruce, and establishing child support payments by Miller. He also appeals an order denying his motion for reconsideration. Miller argues the circuit court demonstrated objective bias by accepting a Facebook “friend” request from Carroll after a contested evidentiary hearing, but before issuing a decision on Carroll’s motion.

This case involves what appears to be an issue of first impression in Wisconsin: a claim of judicial bias arising from a judge’s use of electronic social media (ESM). Although we need not determine whether a bright-line rule prohibiting the judicial use of ESM is appropriate or necessary, we conclude that the circuit court’s undisclosed ESM connection with a current litigant in this case created a great risk of actual bias, resulting in the appearance of partiality. Accordingly, Miller has demonstrated the judge was objectively biased. We therefore reverse and remand the case for further proceedings before a different judge.

Recommended for Publication

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Mark F. Spietz

Case No.: 2017AP2460-CR

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

Focus: Newly Discovered Evidence

Mark Spietz appeals a judgment, entered upon a jury’s verdicts, convicting him of three counts of burglary of a building or dwelling and one count of theft of movable property. Spietz also appeals the order denying his postconviction motion. Spietz argues he is entitled to a new trial based on newly discovered evidence or, alternatively, in the interest of justice. We reject Spietz’s arguments and affirm the judgment and order.

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WI Court of Appeals – District II

Case Name: Roger Choinsky, et al. v. Germantown School District Board of Education, et al.

Case No.: 2018AP116

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

Focus: Insurance Claim – Breach of Duty to Defend

The Germantown School District and the Germantown School District Board of Education (collectively the District) challenge the denial of their postverdict motion seeking attorney fees from their liability insurers. Contending that the insurers breached their duty to defend, the District requests its unpaid fees incurred in its defense as damages flowing from the breach as well as its fees incurred in establishing coverage under the equitable principles set forth in Elliott v. Donahue, 169 Wis. 2d 310, 485 N.W.2d 403 (1992). We conclude that the District fails to provide sufficient proof and legal authority to show that the insurers’ delay in paying for a defense constitutes a breach of their duty to defend. We also conclude that, because the insurers agreed to pay for the District’s defense after the insurers’ motion for a stay was denied, the unique circumstances of Elliott are not present and the insurers are not responsible for the District’s own coverage-related fees. We affirm.

Recommended for Publication

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Lorne Andrew Young

Case No.: 2018AP308-CR

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

Focus: Sentence Modification

Lorne Young appeals from a judgment convicting him of homicide by negligent handling of a dangerous weapon and from an order denying his motion for postconviction relief. Young claims he is entitled to have his sentence modified either because: (1) the circuit court treated an argument made by Young’s counsel as a reflection on Young’s character (i.e., the court considered an improper factor); or (2) the court was not presented with recent research regarding brain development into emerging adulthood (i.e., there is now a new factor for the court to consider). We reject both contentions.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Esmeralda Rivera-Hernandez

Case No.: 2018AP311-CR; 2018AP312-CR

Officials: REILLY, P.J.

Focus: Court Error – Statutory Interpretation

Esmeralda Rivera-Hernandez appeals from two judgments of conviction based on her no contest plea to one count of battery, in violation of WIS. STAT. § 940.19(1), and one count of bail jumping, in violation of WIS. STAT. § 946.49(1)(a). Rivera challenges the circuit court’s denial of the State’s motion to amend the complaint to noncriminal ordinance violations. As we conclude that the circuit court erroneously applied the “public interest” standard set forth in State v. Kenyon, 85 Wis. 2d 36, 270 N.W.2d 160 (1978), we reverse the decision of the circuit court.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Norman Earl Rhodes

Case No.: 2018AP519-CR

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

Focus: Plea Withdrawal

Norman Earl Rhodes appeals a judgment entered after he pled guilty to two firearms offenses. He also appeals a postconviction order that denied both his motion for plea withdrawal and his renewed challenge to the circuit court’s pretrial order denying suppression of evidence. We affirm.

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WI Court of Appeals – District III

Case Name: Robert Lynn Dale-Wozniak v. Bruce John Wozniak

Case No.: 2018AP1173

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

Focus: Abuse of Discretion – Divorce

Roberta Dale-Wozniak appeals an order denying her motion for relief from a judgment terminating her marriage to Bruce Wozniak. She also appeals an order denying her motion for reconsideration. Roberta argues the circuit court erroneously exercised its discretion by denying both of her motions. We reject her arguments and affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. John D. Bullock

Case No.: 2018AP1405

Officials: Hruz, Seidl and Dugan, JJ.

Focus: Court Error – Abuse of Discretion

John Bullock appeals an order that denied, without a hearing, his companion motions for postconviction discovery and for other postconviction relief. Upon our independent review of the record, we conclude the allegations in each of the motions are insufficient to warrant a hearing. In 2014, following the affirmance of his conviction on direct appeal, Bullock filed a pro se motion pursuant to WIS. STAT. § 974.06 (2017-18), raising several claims of ineffective assistance of his trial counsel. The circuit court denied the motion on the ground that the claims were procedurally barred.

In 2018, Bullock filed two additional postconviction motions with the assistance of counsel. In one of these motions, Bullock sought to have “previously untested items of evidence” submitted to Bullock’s expert for analysis. In the other motion, Bullock sought a new trial based upon two new allegations of ineffective assistance of his trial counsel and one claim of newly discovered evidence. In the alternative, Bullock sought resentencing based upon the same alleged facts underlying his claim of newly discovered evidence. The circuit court denied both of these motions without a hearing and without providing any explanation of the reasons for its decision. Bullock appeals the circuit court’s order, contending that the court failed to demonstrate a proper exercise of discretion and that he was entitled to a hearing on the motions.

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WI Court of Appeals – District III

Case Name: D.R. v. B.D.

Case No.: 2018AP1731; 2018AP1732

Officials: SEIDL, J.

Focus: Termination of Parental Rights

Brandon appeals circuit court orders terminating his parental rights to his two children pursuant to WIS. STAT. § 48.415(4) based on the petition of Diane, who is Brandon’s former spouse and the children’s mother. Brandon argues the court erred by: (1) granting Diane’s partial summary judgment motion determining that grounds exist for the termination of Brandon’s parental rights; (2) determining that the termination of his parental rights is in the best interests of his children; and (3) denying his motion to supplement the records before appeal. We disagree on each issue and affirm.

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WI Court of Appeals – District IV

Case Name: Town of Little Wolf v. Waupaca County, et al.

Case No.: 2017AP1941

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

Focus: Due Process Violation

The Town of Little Wolf appeals an order of the circuit court affirming the decision of the Waupaca County Board of Adjustment that the Thiel Pit, a nonmetallic mine, is a lawful nonconforming use and is, therefore, not subject to Waupaca County’s newly enacted nonmetallic mining ordinance. The Town contends that the Board of Adjustment erred in determining that the Thiel Pit is a lawful nonconforming use. The Town also contends that the Board of Adjustment erred by failing to consider whether the Thiel Pit is a nuisance, that the Board of Adjustment violated the Town’s due process rights, and that the Waupaca County Zoning Department’s attorney had a conflict of interest. For the reasons discussed below, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Christopher Dion Woodley

Case No.: 2018AP382-CR

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

Focus: Ineffective Assistance of Counsel 

Christopher Dion Woodley appeals a judgment of conviction following a jury trial and an order denying Woodley’s postconviction motion. Woodley contends that: (1) he is entitled to a new trial based on newly discovered evidence in the form of a statement by Woodley’s codefendant, Donovan Jones, which Woodley claims would have supported Woodley’s defense at trial; (2) he is entitled to a new trial based on ineffective assistance of counsel by failing to call Jones as a witness at Woodley’s trial; and (3) he is entitled to sentence modification based on the new factor of Woodley’s history of drug use, which Woodley claims would have supported his eligibility for the Substance Abuse Program (SAP). For the reasons set forth below, we reject these contentions, and affirm.

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WI Court of Appeals – District IV

Case Name: Bruce Kilmer, et al. v. Kira Foster

Case No.: 2018AP604

Officials: Sherman, Blanchard and Fitzpatrick, JJ.

Focus: Breach of Contract – Land

Kira Foster, a/k/a Kira Hoff, appeals an order compelling specific performance of a land contract. We conclude that Foster has failed to develop any sufficient arguments or to provide an adequate record showing that she is entitled to relief. We therefore affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Kelly James Kloss

Case No.: 2018AP651-CR

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

Focus: Sufficiency of Evidence

Kelly Kloss appeals the circuit court’s denial of his motion for postconviction relief from his convictions of solicitation of first-degree reckless injury and solicitation of first-degree recklessly endangering safety. He argues that: (1) solicitation of first-degree reckless injury does not exist as a crime under Wisconsin law; (2) the evidence presented at trial was insufficient to support either conviction; and (3) because solicitation of first-degree recklessly endangering safety is a lesser included offense of solicitation of first-degree reckless injury, his convictions of both of those crimes are multiplicitous and, therefore, his conviction of one of those counts should be reversed. We reject Kloss’s first two arguments, but agree with his multiplicity argument. Accordingly, we affirm in part, reverse in part, and remand with directions.

Recommended for Publication

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WI Court of Appeals – District IV

Case Name: Bethany C. Wilson v. Hanson Law Group

Case No.: 2018AP701

Officials: LUNDSTEN, P.J.

Focus: Voided Contract – Damages

Hanson Law Group (HLG) appeals a judgment and order in favor of Bethany Wilson. HLG challenges the circuit court’s decision to void a contract between HLG and Wilson. Wilson cross-appeals, arguing that the circuit court erred when calculating the appropriate damages. I affirm the court’s decision to void the contract and also affirm the award of damages.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Simon E. Jeninga

Case No.: 2018AP826-CR; 2018AP827-CR

Officials: Blanchard, Kloppenburg and Fitzpatrick, JJ.

Focus: Ineffective Assistance of Counsel

Simon Jeninga appeals a judgment of conviction and an order denying postconviction relief entered by the Walworth County Circuit Court. Jeninga was convicted of one count of second-degree sexual assault of a child and one count of possession of child pornography pursuant to his guilty pleas to those charges. Jeninga filed a postconviction motion to withdraw his plea, alleging that his trial counsel was constitutionally ineffective for not filing a motion to suppress evidence that was found on his cell phone. Following a Machner hearing, the court denied Jeninga’s postconviction motion. We affirm based on our conclusion that Jeninga has not adequately supported his allegation that, absent trial counsel’s ineffective assistance, he would not have entered any plea and, instead, would have gone to trial.

Recommended for Publication

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WI Supreme Court Digests

WI Supreme Court

Case Name: Office of Lawyer Regulation v. Patrick S. Sweeney

Case No.: 2019 WI 13

Focus: Attorney Disciplinary Hearing

We review the recommendation of the referee, James C. Boll, that Attorney Patrick S. Sweeney’s license to practice law should be revoked due to his professional misconduct. The referee also recommended that Attorney Sweeney be ordered to pay restitution consistent with the terms of an order imposed in a related criminal matter, and pay the costs of this proceeding which are $10,338.75 as of August 17, 2018. Attorney Sweeney opted not to pursue an appeal of the referee’s report and recommendation.

We adopt the referee’s findings of fact and conclusions of law and agree that the seriousness of Attorney Sweeney’s professional misconduct warrants the revocation of his law license. We further agree that he should pay restitution, as recommended by the referee, and that he should pay the costs of this proceeding.

Attorney’s license revoked

Concur:

Dissent:

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WI Supreme Court

Case Name: State of Wisconsin v. C.L.K

Case No.: 2019 WI 14

Focus: Court Error – Termination of Parental Rights

The State of Wisconsin petitioned the Milwaukee County Circuit Court to terminate C.L.K.’s parental rights, following which the matter went to trial in due course. After the State rested, the circuit court immediately decided that Mr. K. was an unfit parent. That is, the circuit court decided the matter before giving Mr. K. an opportunity to present his case. The State concedes this was error, but says it is susceptible to a “harmless-error” review. It is not. We hold that denying a defendant the opportunity to present his case-in-chief is a structural error, the consequence of which is an automatic new trial.

Reversed and remanded

Concur:

Dissent: ROGGENSACK, C.J. dissents, joined by ZIEGLER, J. (opinion filed).

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WI Supreme Court

Case Name: State of Wisconsin ex rel., et al. v. Circuit Court for Brown County, et al.

Case No.: 2019 WI 15

Focus: Abuse of Discretion – Jurisdiction

The circuit court ordered the arbitration of a private construction dispute stayed until it could decide an insurance coverage dispute between one of the contractors connected to the arbitration and the contractor’s insurer. CityDeck Landing LLC petitions this court, pursuant to Wis. Stat. § (Rule) 809.71 (2015-16), for a supervisory writ. CityDeck asks this court to exercise its superintending constitutional authority to vacate the circuit court’s order. CityDeck asserts the circuit court exceeded its jurisdiction by putting the private arbitration on hold, and that a supervisory writ is necessary to correct the circuit court’s extra-jurisdictional act. We hold the circuit court lacked the authority to issue the order staying the arbitration, the requirements necessary to issue a supervisory writ have been satisfied, and the stay order must be vacated.

Granted; stay order vacated

Concur:

Dissent: A.W. BRADLEY, J. dissents, joined by ABRAHAMSON, J. (opinion filed)

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Supreme Court Digests

United States Supreme Court

Case Name: Bobby James Moore v. Texas

Case No.: 18-443

Focus: Intellectual Disability – Death Penalty

In 2015, the Texas Court of Criminal Appeals held that petitioner, Bobby James Moore, did not have intellectual disability and consequently was eligible for the death penalty. Ex parte Moore, 470 S. W. 3d 481, 527–528 (Ex parte Moore I). We previously considered the lawfulness of that determination, vacated the appeals court’s decision, and remanded the case for further consideration of the issue. Moore v. Texas, 581 U. S. ___, ___ (2017) (slip op., at 18). The appeals court subsequently reconsidered the matter but reached the same conclusion. Ex parte Moore, 548 S. W. 3d 552, 573 (Tex. Crim. App. 2018) (Ex parte Moore II). We again review its decision, and we reverse its determination.

Reversed and remanded

Dissenting:

Concurring:

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United States Supreme Court

Case Name: Timbs v. Indiana

Case No.: 17-1091

Focus: 8^th Amendment Violation – Excessive Fines

Tyson Timbs pleaded guilty in Indiana state court to dealing in a controlled substance and conspiracy to commit theft. At the time of Timbs’s arrest, the police seized a Land Rover SUV Timbs had purchased for $42,000 with money he received from an insurance policy when his father died. The State sought civil forfeiture of Timbs’s vehicle, charging that the SUV had been used to transport heroin. Observing that Timbs had recently purchased the vehicle for more than four times the maximum $10,000 monetary fine assessable against him for his drug conviction, the trial court denied the State’s request. The vehicle’s forfeiture, the court determined, would be grossly disproportionate to the gravity of Timbs’s offense, and therefore unconstitutional under the Eighth Amendment’s Excessive Fines Clause. The Court of Appeals of Indiana affirmed, but the Indiana Supreme Court reversed, holding that the Excessive Fines Clause constrains only federal action and is inapplicable to state impositions. The Eighth Amendment’s Excessive Fines Clause is an incorporated protection applicable to the States under the Fourteenth Amendment’s Due Process Clause.

Vacated and remanded

Dissenting:

Concurring: GORSUCH, J., filed a concurring opinion. THOMAS, J., filed an opinion concurring in the judgment.

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United States Supreme Court

Case Name: Dawson et ux. V. Steager

Case No.: 17-419

Focus: Statutory Interpretation – Intergovernmental Tax Immunity

After petitioner James Dawson retired from the U. S. Marshals Service, his home State of West Virginia taxed his federal pension benefits as it does all former federal employees. The pension benefits of certain former state and local law enforcement employees, however, are exempt from state taxation. See W. Va. Code Ann. §11–21–12(c)(6). Mr. Dawson sued, alleging that the state statute violates the intergovernmental tax immunity doctrine as codified at 4 U. S. C. §111. Under that statute, the United States consents to state taxation of the pay or compensation of federal employees, but only if the state tax does not discriminate on the basis of the source of the pay or compensation. A West Virginia trial court found no significant differences between Mr. Dawson’s job duties as a federal marshal and those of the state and local law enforcement officers exempted from taxation and held that the state statute violates §111’s antidiscrimination provision. Reversing, the West Virginia Supreme Court of Appeals emphasized that the state tax exemption applies only to a narrow class of state retirees and was never intended to discriminate against former federal marshals.

The West Virginia statute unlawfully discriminates against Mr. Dawson as §111 forbids. A State violates §111 when it treats retired state employees more favorably than retired federal employees and no “significant differences between the two classes” justify the differential treatment. Davis v. Michigan Dept. of Treasury, 489 U. S. 803, 814–816. Here, West Virginia expressly affords state law enforcement retirees a tax benefit that federal retirees cannot receive, and there are no “significant differences” between Mr. Dawson’s former job responsibilities and those of the tax-exempt state law enforcement retirees. The relevant question under §111 is not whether federal retirees are similarly situated to state retirees who do not receive a tax break; it is whether they are similarly situated to those who do. Finally, the State says that the real distinction may not be based on job duties at all but on the relative generosity of pension benefits. The statute as enacted, however, does not classify persons or groups on that basis. And an implicit but lawful distinction cannot save an express and unlawful one.

Reversed and remanded

Dissenting:

Concurring:

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