Weekly Case Digests – April 22, 2019 – April 26, 2019

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Rafael Giovanni Herrera-Garcia, v. William P. Barr

Case No.: 18-1511; 18-3196

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

Focus: Immigration – Removal Order

Rafael Giovanni Herrera-Garcia seeks to avoid removal to El Salvador because he says that he will be tortured by gangs or corrupt government authorities if he is forced to return there. An immigration judge found that Herrera-Garcia had not shown that he, specifically, would be in danger and denied his request for relief. The judge also concluded that Herrera-Garcia had not established that the government would have inflicted or allowed the alleged torture. The Board adopted and affirmed that decision.

Because the administrative decisions are supported by substantial evidence in the record, we deny Herrera-Garcia’s petition for review of these decisions. We also reject his second petition for review on the denial of his motion for reconsideration because we agree with the Board that it was untimely.

Petition Denied

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7^th Circuit Court of Appeals

Case Name: Elena Hernandez v. Marque Medicos Fullerton, LLC

Case No.: 18-1789

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

Focus: Statutory Interpretation – Illinois Worker’s Compensation Act

When Elena Hernandez filed a voluntary Chapter 7 bankruptcy petition in December 2016, she reported one sizable asset: a pending workers’ compensation claim valued at $31,000. To place that claim beyond the reach of creditors, she listed it as exempt under section 21 of the Illinois Workers’ Compensation Act (“the Act”), 820 ILL. COMP. STAT. 305/21 (2011), applicable via 11 U.S.C. § 522(b). Two days after filing for bankruptcy, Hernandez settled the claim.

We confront an important question of statutory interpretation: whether the Illinois Workers’ Compensation Act, as amended, allows care-provider creditors to reach the proceeds of workers’ compensation claims. Section 21 of the Act has been interpreted by bankruptcy courts to create an exemption for these assets. The 2005 amendments made several changes to the Illinois workers’ compensation regime, imposing a new fee schedule and billing procedure for care providers seeking remuneration. Did those changes alter the scope of section 21?

The Illinois Supreme Court hasn’t addressed the interplay between these competing components of state workers’ compensation law. Without that controlling authority, we find ourselves genuinely uncertain about the correct interpretation. This state-law issue is dispositive, likely to recur, and implicates the effective administration of workers’ compensation in Illinois. Therefore, we respectfully certify the question set forth in this opinion to the Illinois Supreme Court.

Question Certified

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7^th Circuit Court of Appeals

Case Name: Ja’Lin Williams v. Norfolk Southern Corporation, et al.

Case No.: 18-2517

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

Focus: Personal Injury – Comparative Negligence

Ja’Lin Williams was struck by a train while he and his friends were running away from a police officer. He sued the railway, which he believed was at fault for his injuries. But the district court granted summary judgment to the railway, concluding that Williams was barred from recovery by Indiana law because he was more than 50% at fault for the accident. We agree and affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Donald Wanjiku

Case No.: 18-1973

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

Focus: Warrantless Search

Donald Wanjiku pled guilty to one count of transportation of child pornography in violation of 18 U.S.C. § 2252A, but he retained his right to appeal the district court’s denial of his motion to suppress the primary evidence against him. That evidence included photographs and videos recovered from his cell phone, laptop and external hard drive during a warrantless border search at O’Hare International Airport. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Andres Garcia

Case No.: 18-1735

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

Focus: Sufficiency of Evidence

A jury found defendant-appellant Andres Garcia guilty of distributing cocaine—actually distributing a kilogram of the stuff—to co-defendant Alan Cisneros in violation of 21 US.C. § 841. The government offered no direct evidence that Garcia possessed or controlled cocaine, drug paraphernalia, large quantities of cash, or other unexplained wealth. There was no admission of drug trafficking by Garcia, nor any testimony from witnesses (undercover agents, criminal confederates, innocent bystanders, or surveillance officers) that Garcia distributed cocaine. Instead, the government secured this verdict based upon a federal agent’s opinion testimony purporting to interpret several cryptic intercepted phone calls between Garcia and Cisneros, a known drug dealer.

This case illustrates the role trial judges have in guarding the requirement of proof beyond a reasonable doubt in criminal cases. It also reminds us of the connection between the roles that judges play in criminal cases, requiring proof beyond a reasonable doubt, and in civil cases, where motions for summary judgment and for judgment as a matter of law require judges to evaluate the outer limits of reasonable inferences under the lower civil standard of proof by a preponderance of the evidence. See generally Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252–53 (1986) (comparing civil summary judgment standards to criminal standard discussed in Jackson v. Virginia, 443 U.S. 307, 318–19 (1979)). If the evidence would not allow a civil case to survive a motion for summary judgment or a directed verdict, then the case has no business being given to a jury in a criminal trial.

We assume the government’s circumstantial evidence here might have supported a search warrant or perhaps a wiretap on Garcia’s telephone. It simply was not sufficient to support a verdict of guilty beyond a reasonable doubt for distributing cocaine. We reverse the district court’s decisions denying Garcia’s motions for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29 and reverse his convictions for insufficient evidence.

Reversed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Geraldo Colon

Case No.: 18-1233

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

Focus: Sentencing Guidelines – Enhancement

Geraldo Colon used his Indianapolis furniture store and a related business as a front to hide his more lucrative enterprise: buying large quantities of cocaine and heroin from Arizona and reselling the drugs to local dealers in Indiana. For his role as a middleman in this scheme, a grand jury charged Colon with drug conspiracy, money laundering, and making false statements in a bankruptcy proceeding. Following two jury trials, Colon was convicted on all counts and sentenced to 30 years’ imprisonment.

Colon challenges his convictions for money laundering, arguing that the government’s evidence was insufficient. He also contends that the district court committed error in calculating his advisory sentencing range by applying leadership enhancements under § 3B1.1 of the Sentencing Guidelines. The leadership enhancement is inapplicable, as Colon sees the evidence, because, as an independent middleman, he did not oversee any participants. Neither challenge succeeds. We affirm Colon’s money laundering convictions. And although we agree that the district court erred in applying leadership enhancements, a careful review of the sentencing transcript reveals that these errors were harmless.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Daetrell Jamal Watson

Case No.: 2017AP2249-CR

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

Focus: Sentence Modification

Daetrell Jamal Watson appeals a judgment of conviction entered upon his guilty plea to one count of armed robbery as a party to a crime. He also appeals an order denying postconviction relief. He contends that disparate sentences imposed on his codefendants warrant modification of the twenty-two-year term of imprisonment imposed on him. We reject his arguments and affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Marshawn Terell Johnson

Case No.: 2017AP2445-CR

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

Focus: Abuse of Discretion – Sentencing

Marshawn Johnson appeals a judgment of conviction for possession with intent to deliver heroin and an order denying his motion for postconviction relief. He contends the circuit court erroneously exercised its sentencing discretion because the court based its sentence in part on the fact that Johnson was from Chicago, Illinois, and had traveled to Superior, Wisconsin, to commit his crime. Johnson contends such a consideration violated the Privileges and Immunities Clause of the United States Constitution. See U.S. CONST. art. IV, § 2, cl. 1. We reject this argument because the record shows Johnson was not sentenced because he was from Chicago, but rather because he had brought heroin from another area to be distributed locally. We conclude such a consideration did not violate the Privileges and Immunities Clause, and we affirm.

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WI Court of Appeals – District III

Case Name: Emer’s Camper Corral, LLC v. Michael A. Alderman, Inc., et al.

Case No.: 2018AP458

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

Focus: Insurance Claim – Negligence

Emer’s Camper Corral, LLC, (“Camper Corral”) sued Michael Alderman and Alderman, Inc. d/b/a Jensen-Sundquist Insurance Agency (collectively, “Alderman”), asserting a single claim for negligence. Specifically, Camper Corral alleged that Alderman breached his duty as its insurance agent by procuring a policy for Camper Corral that contained a $5000 per-unit deductible for hail damage claims, instead of a policy with a $1000 per-unit hail damage deductible and an aggregate hail damage deductible of $5000. The case proceeded to a jury trial, and the circuit court ultimately granted Alderman’s motion for a directed verdict on two grounds: (1) Camper Corral failed to present an expert witness to testify regarding the standard of care; and (2) Camper Corral failed to establish that Alderman’s alleged negligence caused its damages.

We conclude the circuit court properly granted Alderman a directed verdict. To prevail on its negligence claim, Camper Corral was required to prove that Alderman’s conduct caused Camper Corral’s damages—that is, that his conduct was a substantial factor in producing those damages. In order to do so, Camper Corral needed to establish that, but for Alderman’s alleged negligence, Camper Corral could have obtained a policy that included a lower hail damage deductible than the policy Alderman actually obtained. Camper Corral failed to produce any evidence supporting a conclusion that it would have been able to obtain such a policy, absent Alderman’s alleged negligence. As such, Camper Corral could not establish, as a matter of law, that Alderman’s conduct was a cause of its damages. We therefore affirm the circuit court’s decision granting Alderman a directed verdict.

Recommended for Publication

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Harvey A. Talley

Case No.: 2018AP786-CR; 2018AP787-CR; 2018AP788-CR

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

Focus: Ineffective Assistance of Counsel

Harvey A. Talley appeals judgments of conviction, entered on a jury verdict, for multiple crimes related to sexual contact with A.D., the teenage daughter of his wife. On appeal, he challenges only the conviction for first-degree sexual assault causing pregnancy. The charge was based on A.D.’s allegation, which she later recanted, that in early 2014 Talley had forced her to have sexual intercourse and that he was the father of her child, born in November 2014. Talley also appeals the order denying his postconviction motion after an evidentiary hearing.

The postconviction court conducted a Machner hearing more than two years after the trial. There was undisputed testimony that trial counsel had practiced criminal law for thirty-three years and had tried hundreds of cases. Trial counsel testified that he had no specific recollection as to why he did not ask the questions Talley claimed should have been asked.

An objective view of the record, including trial counsel’s testimony at the Machner hearing, supports the conclusion that experienced counsel could reasonably have decided to elicit as much favorable testimony from A.D. as possible and otherwise seek to avoid eliciting answers that might require trial counsel to impeach her. On that basis, we conclude that counsel’s performance “was objectively reasonable according to prevailing professional norms.” See State v. Kimbrough, 2001 WI App 138, ¶31, 246 Wis. 2d 648, 630 N.W.2d 752. Because Talley has not established that trial counsel’s performance was deficient, we affirm the order denying his motion for a new trial.

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WI Court of Appeals – District III

Case Name: David L. Fabry v. Kevin Jagiello, et al.

Case No.: 2018AP891

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

Focus: Sufficiency of Evidence

Kevin, Cheryl, David and Karen Jagiello (“the Jagiellos”) appeal a judgment, entered following a bench trial, determining that David Fabry acquired legal title to a parcel of land by adverse possession. The Jagiellos argue the evidence at trial was insufficient to establish adverse possession because: (1) the circuit court improperly relied on the existence of a fence erected by the common grantor from whom both the Jagiellos and Fabry acquired their property; and (2) absent the fence, the other evidence regarding Fabry’s use of the disputed parcel was insufficient to prove adverse possession.

We conclude the circuit court properly relied on the existence of the fence erected by the parties’ common grantor. We further conclude that the evidence at trial, viewed in its totality, was sufficient to establish that Fabry adversely possessed the disputed parcel. We therefore affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Antonio D. Cotton

Case No.: 2018AP1136-CR

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

Focus: Probable Cause

Antonio Cotton appeals a circuit court judgment convicting him of possession of a firearm by a felon and possession of cocaine with intent to deliver. Cotton argues that the affidavit in support of the warrant used to search an apartment he occupied failed to establish probable cause for the search. We disagree and conclude that the affidavit was sufficient.  Cotton also argues that police exceeded the scope of the warrant by searching a truck without reason to believe the truck was associated with Cotton. We conclude that the legality of the truck search is moot and, therefore, do not address the merits of that issue. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Daniel W. Morse

Case No.: 2018AP1293-CR

Officials: DUGAN, J.

Focus: Guilty Plea – Failure to Establishment Elements of Offense

Daniel W. Morse appeals a judgment, entered following guilty pleas, convicting him of three misdemeanor counts of theft by embezzlement not exceeding $2500. Morse, an attorney, is representing himself.

Morse argues that the conduct charged in this case did not establish the elements of theft by embezzlement under WIS. STAT. § 943.20(1)(b). In its response brief, the State argues that Morse waived the ability to challenge his convictions by entering his guilty pleas. In his reply brief, Morse does not refute the State’s argument and, therefore, he concedes the issue. Therefore, we affirm and do not address the merits of this appeal.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Angela L. Staten

Case No.: 2018AP1506-CR

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

Focus: Abuse of Discretion – Sentencing

Angela L. Staten appeals from a judgment of conviction and an order denying her postconviction motion for sentencing relief. She seeks a new sentencing hearing. Staten and two codefendants—her sisters Sharon and Tawanda—were charged in connection with a tax fraud scheme carried out over a period of three years that cost the State of Wisconsin $234,390. Pursuant to a plea agreement, Staten pleaded guilty to one felony count of theft by false representation and four felony counts of identity theft, each with a felony repeater enhancer. Thirty-five additional felony counts were dismissed and read in. She was the first of the three codefendants sentenced. She seeks resentencing on two grounds: first, that her sentence was unduly harsh because it is longer than the sentences the trial court later imposed on her codefendants; and second, that the trial court erroneously exercised its discretion by failing to articulate a basis for imposing prison time rather than probation on counts four and five.

We conclude that Staten is not entitled to resentencing because she has not met her burden to show that the trial court “based its determination upon factors not proper in or irrelevant to sentencing, or was influenced by motives inconsistent with impartiality.” See Jung v. State, 32 Wis. 2d 541, 548, 145 N.W.2d 684 (1966). As to her first claim, although the codefendants all participated in the same scheme, they were not similarly situated for sentencing purposes: Staten’s codefendants had fewer prior convictions, fewer open cases, pled guilty to fewer counts, had fewer dismissed counts read in, and had only misdemeanor repeater enhancers rather than felony repeater enhancers. Staten has therefore not met her burden to show that the disparity made her sentence unduly harsh.

As to her second claim of error, it is Staten’s burden to show that in imposing prison terms rather than probation on two counts, the trial court “fail[ed] to state the relevant and material factors that influenced its decision, relie[d] on immaterial factors, or [gave] too much weight to one factor in the face of other contravening factors.” See State v. Steele, 2001 WI App 160, ¶10, 246 Wis. 2d 744, 632 N.W.2d 112. The record shows that the trial court stated briefly but clearly “the relevant and material factors that influenced its decision,” see id., namely that probation on count four was not proper because the court did not think Staten would benefit from probation “because of the consecutive sentences as to the [extended supervision],” and probation on count five was not appropriate because “she’s on [extended supervision]” and “she’ll have a sufficient amount of [extended supervision] time.” We therefore affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Arttistis B. Hall

Case No.: 2018AP1522-CR

Officials: BRENNAN, J.

Focus: Plea Withdrawal

Arttistis B. Hall appeals from a judgment of conviction, entered on his guilty plea, for contempt of court. He argues that the trial court erred when it denied his motion to withdraw his plea prior to sentencing, and he seeks plea withdrawal.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Edith May

Case No.: 2017AP869-CR

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

Focus: Plea Withdrawal

Edith May appeals from a judgment of conviction and an order denying her postconviction motion. She contends that she is entitled to withdraw her guilty pleas. We disagree and affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Eve Nance

Case No.: 2017AP1648-CR

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

Focus: Due Process Violation

Eve Nance appeals from a judgment convicting her of first-degree intentional homicide and hiding a corpse as party to a crime. She contends that the circuit court should have suppressed her inculpatory statements to police. We disagree and affirm.

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WI Court of Appeals – District II

Case Name: Leith Holdings, LLC, v. Wisconsin Power and Light Company

Case No.: 2017AP1740

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

Focus: Inverse Condemnation

Leith Holdings, LLC appeals from a circuit court order granting summary judgment to Wisconsin Power & Light Company (WP&L). Leith claimed that WP&L inversely condemned its property by placing utility infrastructure (electric transformers and power lines) on what Leith claimed were private roads on its property. We agree with the circuit court that WP&L’s utility infrastructure was placed on public roads as shown in an 1894 recorded plat because that plat made a statutory dedication to the public of the roads at issue. We affirm.

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WI Court of Appeals – District II

Case Name: Old Metallurgical Associates, Inc., et al. v. New Mai, Inc., et al.

Case No.: 2018AP619

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

Focus: Receivership – Divorce – Breach of Contract

This receivership case, resulting from an underlying breach-of-contract case, is reminiscent of a messy divorce. Former Metallurgical Associates, Inc., since rebranded as Old Metallurgical Associates (Old MAI), and Robert Hutchinson, one of Old MAI’s two owners, appeal the order denying their motion to reopen the receivership case and the order sanctioning them for frivolously filing it. We affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Emmanuel V. Stevenson

Case No.: 2017AP2423-CR

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

Focus: Sentence Credit

Emmanuel Stevenson appeals a circuit court order, entered on November 13, 2017, reinstating a prior order granting Stevenson 304 days of sentence credit. Stevenson argues on appeal that he is entitled to additional sentence credit. He also argues that the circuit court violated his due process rights in its determination of sentence credit. For the reasons discussed below, we affirm the order of the circuit court.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Richard H. Harrison, Jr.,

Case No.: 2017AP2440-CR; 2017AP2441-CR

Officials: Sherman, Blanchard and Kloppenburg, JJ.

Focus: Sentence Credit

In these consolidated appeals, the State appeals a circuit court order that awarded Richard Harrison sentence credit, pursuant to WIS. STAT. § 973.155 (2017-18), for the initial confinement time that he served on two convictions that were each vacated while Harrison was then serving the initial confinement portion of the sentence on each respective vacated conviction. The court ordered that the initial confinement time that Harrison served for the two vacated convictions be credited toward extended supervision sentences that Harrison received in two cases that were not vacated and that were unrelated to the cases with the vacated convictions. Harrison was to begin serving the extended supervision time in each unvacated case after he completed serving the initial confinement portions of his sentences for the vacated convictions.

The State contends that the circuit court erred in awarding Harrison sentence credit, because the time Harrison spent serving initial confinement in first one, and then the other, case in which the convictions were subsequently vacated was not time “spent in custody in connection with the course of conduct for which the sentence was imposed” in the non-vacated cases, as required under WIS. STAT. § 973.155. We agree with the State on this point. This case does not involve sentence credit, because the courses of conduct were different between the cases with the ultimately vacated convictions and the cases with the never vacated convictions.

Accordingly, we reverse the circuit court order requiring the Department of Corrections to give Harrison sentence credit for the periods of initial confinement already served in the cases with the vacated convictions to reduce Harrison’s periods of extended supervision in the cases in which the convictions were not vacated. We remand with the direction that the court order DOC to advance the commencement of the valid extended supervision periods in each of the cases in which the conviction was not vacated, so that these extended supervision periods begin on the dates on which Harrison completed serving the initial confinement portions of his sentences in each case in which the conviction was not vacated. In short, DOC is to remove the invalid initial confinement time in the vacated sentences from the calculations, treating those sentences as if they had never been imposed.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Timothy J. Reichling

Case No.: 2018AP245-CR

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

Focus: Probable Cause – Suppression of Evidence

Timothy Reichling, by counsel, appeals a judgment convicting him of two counts of possession of child pornography, after he entered guilty pleas. Reichling contends that the circuit court erred by denying his motion to suppress evidence seized during the execution of what Reichling argues was an invalid search warrant. We reject Reichling’s argument and affirm the judgment of the circuit court.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Daniel P. Henningsen

Case No.: 2018AP475

Officials: Blanchard, Kloppenburg and Fitzpatrick, JJ.

Focus: Intrastate Detainer Act Violation

Daniel P. Henningsen appeals an order denying his motion for postconviction relief under WIS. STAT. § 974.06 (2017-18). In August 2008, the State charged Henningsen with multiple criminal counts arising out of a car crash that occurred when Henningsen was driving while intoxicated. On March 18, 2009, the Department of Corrections sent Henningsen’s request for a prompt disposition to the district attorney. Henningsen’s request for a prompt disposition under WIS. STAT. § 971.11(2), the Intrastate Detainer Act (IDA), required the State to bring Henningsen’s criminal case to trial within 120 days, by July 17, 2009.

We conclude that Henningsen failed to establish that his direct postconviction and appellate counsel was ineffective by failing to pursue dismissal based on a violation of the IDA because the record establishes that Henningsen waived his right to a prompt disposition in the circuit court. We affirm the order denying Henningsen’s WIS. STAT. § 974.06 motion.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Edward L. Branson

Case No.: 2018AP873-CR

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

Focus: Ineffective Assistance of Counsel

Edward Branson appeals a judgment convicting him of possession with intent to deliver methamphetamine. He also appeals an order denying his motion for postconviction relief. As to both, Branson argues that his trial counsel was ineffective because counsel failed to object to testimony that improperly bolstered the testimony of a prosecution witness in violation of State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1984). We agree with the circuit court’s view that the challenged testimony here is not the sort of opinion-for-truthfulness testimony prohibited by Haseltine and its progeny. Accordingly, we affirm.

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WI Court of Appeals – District IV

Case Name: Deborah L. O’Brien v. The Travelers Inn, LLC,

Case No.: 2018AP1483

Officials: FITZPATRICK, J.

Focus: FLSA Violation – Minimum Wage

Deborah O’Brien appeals an order of the Iowa County Circuit Court dismissing her claim against The Travelers Inn, LLC. O’Brien initiated a small claims action alleging that Travelers Inn failed to pay her the minimum wage required by Wisconsin and federal law. I conclude that Travelers Inn failed to meet its obligation to pay O’Brien that minimum wage. Accordingly, the circuit court’s order is reversed and this matter is remanded with directions for the circuit court to enter judgment in favor of O’Brien and to conduct further proceedings consistent with this opinion.

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WI Court of Appeals – District IV

Case Name: Rock County v. Brenda E. Marshall

Case No.: 2019AP219

Officials: BLANCHARD, J.

Focus: Statutory Interpretation

Brenda Marshall, pro se, appeals a judgment of conviction, resulting from a trial to the court. The conviction is for “following another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.” See WIS. STAT. § 346.14(1m). Marshall does not offer a developed argument. I could reject her appeal on that ground. But in Marshall’s favor I assume that she intends to make the following two, closely related arguments: (1) the circuit court erred in failing to take into account the speed of a vehicle that Marshall rear-ended just before the collision, which is one fact to be considered under § 346.14(1m); (2) the circuit court clearly erred in finding that the County proved that Marshall failed to maintain a reasonable and prudent distance under the relevant circumstances. I reject these two possible arguments and affirm.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Milwaukee District Council 48 v. Milwaukee County

Case No.: 2019 WI 24

Focus: Statutory Interpretation – Pension – Collective Bargaining Agreement

Milwaukee County seeks to deny what it characterizes as “unusually generous” pension benefits to certain members of Milwaukee District Council 48 of the American Federation of State, County and Municipal Employees (DC-48), citing the County’s structural deficit, the escalating cost of the Employees’ Retirement System of the County of Milwaukee (ERS), and the County’s intention to grant a particular benefit to only those represented employees who were hired before 1994. Known as the “Rule of 75,” this benefit allows an eligible employee to receive a full pension when his age plus years of service total 75. After the Wisconsin legislature enacted 2011 Wis. Act 10, which limited collective bargaining to base wages for municipal employees, the County resolved to codify existing Rule of 75 eligibility for nonrepresented employees. Instead, the County enacted an ordinance granting Rule of 75 benefits to all employees “not covered by the terms of a collective bargaining agreement” as long as those employees were hired before 2006.

At the time of enactment, County employees who were represented by DC-48 were no longer covered by a collective bargaining agreement (CBA), the last of which expired in 2009. In order to avoid paying $6.8 million in benefits the County says it never intended to grant, the County urges the court to interpret “not covered by the terms of a collective bargaining agreement” to mean “not represented by a union.” Because we must apply the plain meaning of the ordinance’s text rather than rewrite it to reflect what the County may have intended, we reject the County’s request and affirm the court of appeals.

Affirmed

Concur:

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

Case Name: State of Wisconsin v. Joseph B. Reinwand

Case No.: 2019 WI 25

Focus: 6^th Amendment Violation – Confrontation Clause

This appeal comes before us on certification from the court of appeals. On October 30, 2014, Joseph B. Reinwand was convicted of first-degree intentional homicide for shooting Dale Meister, the father of his granddaughter. He was sentenced to life in prison without the possibility of release to extended supervision.

We conclude the following: first, Meister’s statements to family and friends about Reinwand were not testimonial; therefore, they do not implicate the Sixth Amendment’s Confrontation Clause. Accordingly, we do not reach the certified questions regarding the forfeiture by wrongdoing exception to the right of confrontation.

Second, the “other acts” evidence of Reinwand’s prior burglary was properly admitted for the purpose of challenging his asserted memory problems. Third, Reinwand’s counsel was not ineffective either at trial or at sentencing. For these reasons, we affirm the decision of the circuit court.

Affirmed

Concur: DALLET, J. concurs, joined by ABRAHAMSON, J. and A.W. BRADLEY, J. (opinion filed).

Dissent:
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WI Supreme Court

Case Name: State of Wisconsin v. Michael A. Keister

Case No.: 2019 WI 26

Focus: Due Process Violation

The court of appeals dismissed this appeal as moot. We reverse that order and address the Iowa County Circuit Court’s decision declaring Wis. Stat. §§ 165.95(1)(a) and (3)(c) (2015-16)1 unconstitutional as applied to Michael Keister. We granted the State’s petition for review asking us to consider: (1) whether an individual has a fundamental liberty interest in continued participation in a treatment court funded by § 165.95; and (2) whether § 165.95 must define expulsion procedures for treatment courts in order to survive a procedural due process challenge. Keister, however, now concedes both issues and agrees with the State that the circuit court erred in declaring the statute unconstitutional.  We vacate the order of the circuit court.

Reversed and vacated

Concur:

Dissent:
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WI Supreme Court

Case Name: Christopher Kieninger, et al. v. Crown Equipment Corporation

Case No.: 2019 WI 27

Focus: Statutory Interpretation

Christopher Kieninger and Dewayne Meek tell us that Wisconsin’s statutes and regulations require their employer to pay them for the time they spend driving a company-provided vehicle between their homes and their assigned jobsites. Because our laws do not impose such an obligation, we reverse the court of appeals.

Reversed

Concur:

Dissent:
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WI Supreme Court

Case Name: Office of Lawyer Regulation v. John F. Koenig

Case No.: 2019 WI 28

Focus: Attorney Disciplinary Proceedings

We review the report and recommendation of Referee Kim M. Peterson in favor of reinstating the license of Attorney John F. Koenig to practice law in Wisconsin. After careful review of the matter, we agree that Attorney Koenig’s license should be reinstated. Consistent with our general practice, we require Attorney Koenig to pay the full costs of this reinstatement proceeding, which are $3,646.23 as of December 5, 2018.

Reinstatement granted

Concur:

Dissent:
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WI Supreme Court

Case Name: Office of Lawyer Regulation v. David P. F. Templeton

Case No.: 2019 WI 29

Focus: Attorney Disciplinary Proceedings

We review a stipulation filed pursuant to Supreme Court Rule (SCR) 22.12 by the Office of Lawyer Regulation (OLR) and Attorney David P. F. Templeton. In the stipulation, Attorney Templeton admits that he committed professional misconduct, and he agrees with the OLR’s request that his license to practice law be suspended for a period of six months. He further agrees that the court should impose various conditions upon the reinstatement of his license to practice law.

After careful review of the matter, we accept the stipulation and impose the requested discipline. Because Attorney Templeton entered into a comprehensive stipulation prior to the appointment of a referee, we do not require him to pay the costs of this proceeding.

License suspended

Concur:

Dissent:
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WI Supreme Court

Case Name: Office of Lawyer Regulation v. Diann P. Burton

Case No.: 2019 WI 30

Focus: Attorney Disciplinary Hearing

We review Referee Kim M. Peterson’s recommendation that the court declare Attorney Diann P. Burton in default and publicly reprimand her for professional misconduct in connection with her practice of law while her law license was suspended, and her improper use of a firm name for her solo practice. The referee also recommended that Attorney Burton pay the full costs of this proceeding, which total $533 as of January 15, 2019.

Because no appeal has been filed, we review the referee’s report pursuant to Supreme Court Rule (SCR) 22.17(2). After conducting our independent review of the matter, we agree with the referee that, based on Attorney Burton’s failure to answer the complaint filed by the Office of Lawyer Regulation (OLR), the OLR is entitled to a default judgment. We also agree with the referee that Attorney Burton’s professional misconduct warrants a public reprimand. Finally, we agree with the referee that Attorney Burton should be ordered to pay the full costs of the proceeding.

Attorney publicly reprimanded

Concur:

Dissent:
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Supreme Court Digests

United States Supreme Court

Case Name: Washington State Department of Licensing v. Cougar Den, Inc.

Case No.: 16-1498

Focus: Statutory Interpretation – Fuel Import Tax

The State of Washington imposes a tax upon fuel importers who travel by public highway. The question before us is whether an 1855 treaty between the United States and the Yakama Nation forbids the State of Washington to impose that tax upon fuel importers who are members of the Yakama Nation. We conclude that it does, and we affirm the Washington Supreme Court’s similar decision.

Affirmed

Dissenting: ROBERTS, C. J., filed a dissenting opinion, in which THOMAS, ALITO, and KAVANAUGH, JJ., joined. KAVANAUGH, J., filed a dissenting opinion, in which THOMAS, J., joined.

Concurring: GORSUCH, J., filed an opinion concurring in the judgment, in which GINSBURG, J., joined.
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United States Supreme Court

Case Name: Kirstjen M. Nielsen, et al. v. Bryan Wilcox, et al.

Case No.: 16-1363

Focus: Immigration – Mandatory Detention Requirement

Aliens who are arrested because they are believed to be deportable may generally apply for release on bond or parole while the question of their removal is being decided. These aliens may secure their release by proving to the satisfaction of a Department of Homeland Security officer or an immigration judge that they would not endanger others and would not flee if released from custody.

Congress has decided, however, that this procedure is too risky in some instances. Congress therefore adopted a special rule for aliens who have committed certain dangerous crimes and those who have connections to terrorism. Under a statutory provision enacted in 1996, 110 Stat. 3009–585, 8 U. S. C. §1226(c), these aliens must be arrested “when [they are] released” from custody on criminal charges and (with one narrow exception not involved in these cases) must be detained without a bond hearing until the question of their removal is resolved.

In these cases, the United States Court of Appeals for the Ninth Circuit held that this mandatory-detention requirement applies only if a covered alien is arrested by immigration officials as soon as he is released from jail. If the alien evades arrest for some short period of time— according to respondents, even 24 hours is too long—the mandatory-detention requirement is inapplicable, and the alien must have an opportunity to apply for release on bond or parole. Four other Circuits have rejected this interpretation of the statute, and we agree that the Ninth Circuit’s interpretation is wrong. We therefore reverse the judgments below and remand for further proceedings.

Reversed and remanded

Dissenting: BREYER, J., filed a dissenting opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined.

Concurring: KAVANAUGH, J., filed a concurring opinion. THOMAS, J., filed an opinion concurring in part and concurring in the judgment, in which GORSUCH, J., joined.
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United States Supreme Court

Case Name: Air & Liquid Systems Corp, et al. v. Roberta G. Devries, et al.  

Case No.: 17-1104

Focus: Duty to Warn – Product Liability

In maritime tort cases, we act as a common-law court, subject to any controlling statutes enacted by Congress. See Exxon Shipping Co. v. Baker, 554 U. S. 471, 507–508 (2008). This maritime tort case raises a question about the scope of a manufacturer’s duty to warn. The manufacturers here produced equipment such as pumps, blowers, and turbines for three Navy ships. The equipment required asbestos insulation or asbestos parts in order to function as intended. When used on the ships, the equipment released asbestos fibers into the air. Two Navy veterans who were exposed to asbestos on the ships developed cancer and later died. The veterans’ families sued the equipment manufacturers, claiming that the manufacturers were negligent in failing to warn of the dangers of asbestos.

The plaintiffs contend that a manufacturer has a duty to warn when the manufacturer’s product requires incorporation of a part (here, asbestos) that the manufacturer knows is likely to make the integrated product dangerous for its intended uses. The manufacturers respond that they had no duty to warn because they did not themselves incorporate the asbestos into their equipment; rather, the Navy added the asbestos to the equipment after the equipment was already on board the ships.

We agree with the plaintiffs. In the maritime tort context, a product manufacturer has a duty to warn when (i) its product requires incorporation of a part, (ii) the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and (iii) the manufacturer has no reason to believe that the product’s users will realize that danger. The District Court did not apply that test when granting summary judgment to the defendant manufacturers. Although we do not agree with all of the reasoning of the U. S. Court of Appeals for the Third Circuit, we affirm its judgment requiring the District Court to reconsider its prior grants of summary judgment to the defendant manufacturers.

Affirmed

Dissenting: GORSUCH, J., filed a dissenting opinion, in which THOMAS and ALITO, JJ., joined.

Concurring:
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United States Supreme Court

Case Name: Dennis Obduskey v. McCarthy & Holthus, LLP

Case No.: 17-1307

Focus: Statutory Interpretation – FDCPA

The Fair Debt Collection Practices Act regulates “‘debt collector[s].’” 15 U. S. C. §1692a(6); see 91 Stat. 874, 15 U. S. C. §1692 et seq. A “‘debt collector,’” the Act says, is “any person . . . in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts.” §1692a(6). This definition, however, goes on to say that “[f]or the purpose of section 1692f(6)” (a separate provision of the Act), “[the] term [debt collector] also includes any person . . . in any business the principal purpose of which is the enforcement of security interests.” Ibid.

The question before us concerns this last sentence. Does it mean that one principally involved in “the enforcement of security interests” is not a debt collector (except “[f]or the purpose of section 1692f(6)”)? If so, numerous other provisions of the Act do not apply. Or does it simply reinforce the fact that those principally involved in the enforcement of security interests are subject to §1692f(6) in addition to the Act’s other provisions?

In our view, the last sentence does (with its §1692f(6) exception) place those whose “principal purpose . . . is the enforcement of security interests” outside the scope of the primary “debt collector” definition, §1692a(6), where the business is engaged in no more than the kind of security interest enforcement at issue here—nonjudicial foreclosure proceedings.

Affirmed

Dissenting:

Concurring: SOTOMAYOR, J., filed a concurring opinion.
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United States Supreme Court

Case Name: Theodore H. Frank, et al. v. Paloma Gaos, et al.

Case No.: 17-961

Focus: Class Action – Stored Communications Violation

Three named plaintiffs brought class action claims against Google for alleged violations of the Stored Communications Act. The parties negotiated a settlement agreement that would require Google to include certain disclosures on some of its webpages and would distribute more than $5 million to cy pres recipients, more than $2 million to class counsel, and no money to absent class members. We granted certiorari to review whether such cy pres settlements satisfy the requirement that class settlements be “fair, reasonable, and adequate.” Fed. Rule Civ. Proc. 23(e)(2). Because there remain substantial questions about whether any of the named plaintiffs has standing to sue in light of our decision in Spokeo, Inc. v. Robins, 578 U. S. ___ (2016), we vacate the judgment of the Ninth Circuit and remand for further proceedings.

Vacated and remanded

Dissenting: THOMAS, J., filed a dissenting opinion.

Concurring:
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