Weekly Case Digests – June 3, 2019 – June 7, 2019

Listen to this article

7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Rodolfo Deiby Burgos Noeller v. Jason Wojdylo

Case No.: 18-2723

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

Focus: Habeas Corpus – Extradition

Mexico asked the United States to extradite appellant Rodolfo Deiby Burgos Noeller for the 2015 murder of Rosa Lorena Jacobo Carrillo in Mexico City. The United States extradition treaty with Mexico establishes the requirements for each country to request the arrest and extradition of a person within the other’s borders. See Extradition Treaty, Mexico-U.S., art. X, § 3, Feb. 6, 1980, 31 U.S.T. 5059 (1980). In accord with the treaty, Mexico submitted a formal request along with an authenticated arrest warrant and other supporting documents. After a hearing under 18 U.S.C. § 3184, the presiding magistrate judge found that Mexico’s request complied with the treaty requirements, including submitting evidence establishing probable cause that Burgos Noeller is guilty of the crime for which extradition is sought. The magistrate judge granted the United States government’s request for the certification of Burgos Noeller’s extradition to Mexico and ordered him committed to the custody of the U.S. Marshals Service. See In re Noeller, No. 17 CR 664, 2018 WL 1027513 (N.D. Ill. Feb. 23, 2018).

Burgos Noeller then filed a petition for a writ of habeas corpus in the district court seeking review of the magistrate judge’s orders certifying him for extradition and committing him to custody. The district court denied the petition, and we review its decision now in this appeal. We affirm. Mexico has submitted a valid request for extradition, which United States courts must honor. Burgos Noeller’s legal and factual challenges to the extradition request ask us to go well beyond the narrow role for courts in the extradition process.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Mehdi Abdollahzadeh v. Mandarich Law Group, LLP

Case No.: 18-1904

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

Focus: FDCPA Violation – Bona Fide Error

Mehdi Abdollahzadeh opened a credit-card account with MBNA America Bank in 1998 and used it to make various personal, family, and household purchases. Twelve years later he defaulted on his debt, making his last payment in August 2010. In June 2011 he attempted another payment, but it never cleared. In April 2013 the bank sold the delinquent account to CACH, LLC, a debt buyer. Abdollahzadeh sued Mandarich for attempting to collect a time-barred debt in violation of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq. (“FDCPA” or “the Act”). His claims centered on the collection letter and the state-court collection action. Mandarich moved for summary judgment citing the bona fide error defense. Id. § 1692k(c). The district court granted the motion, concluding that the violations were unintentional and occurred despite reasonable procedures aimed at avoiding untimely collection attempts.

Abdollahzadeh challenges that ruling on several grounds. First, he argues that Mandarich’s continuation of the collection action after it learned the true last-payment date creates a factual dispute on the issue of intent. He also contends that the law firm’s reliance on CACH’s representations about the last-payment date was an abdication of its duty to engage in meaningful review and thus was unreasonable as a matter of law. Finally, he characterizes the firm’s procedures for weeding out time-barred debts as “thinly specified policies” insufficient to support the affirmative defense.

We reject these arguments and affirm. The bona fide error defense doesn’t require the independent verification and procedural perfection Abdollahzadeh seems to think necessary. The undisputed evidence shows that any FDCPA violations were the unintentional result of a bona fide mistake. And Mandarich had procedures in place that, while simple, were reasonably adapted to avoid late collection efforts.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: LeTran Tran v. Minnesota Life Insurance

Case No.: 18-1723

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

Focus: Insurance Claim – Coverage

Linno Llenos died engaging in an act known as autoerotic asphyxiation. His widow and beneficiary, LeTran Tran, filed a claim with Minnesota Life Insurance Company, seeking the proceeds from Llenos’s ERISA-governed life insurance policies. Minnesota Life paid most of her claims but denied coverage under Llenos’s Accidental Death & Dismemberment policy riders. Minnesota Life determined Llenos’s death was not accidental and fell under a policy exclusion for deaths resulting from “intentionally self-inflicted injury.” The district court reversed, ruling that Llenos’s death qualified as an accidental death and did not result from an intentionally self-inflicted injury.

Because a reasonable person would interpret Llenos’s cause of death, autoerotic asphyxiation, to be an “intentionally self-inflicted injury,” we reverse.

Reversed

Full Text

7^th Circuit Court of Appeals

Case Name: Pearl Carter v. City of Alton, et al.

Case No.: 18-2636

Officials: HAMILTON, BARRETT, and ST. EVE, Circuit Judges.

Focus: Withdrawal of Motion – Court Error – Dismissal

Pearl Carter moved to voluntarily dismiss the complaint that she had filed against Michael Morelli, Jeffrey Henderson, and the City of Alton. Her motion did not explicitly say that she sought dismissal without prejudice, but it did state that “neither party will be prejudiced by the granting of this Motion.” The defendants responded, arguing that the district court should grant Carter’s motion—but that it should do so with prejudice. Carter’s only reply was to amend her motion to specify that she sought dismissal without prejudice. The district court dismissed Carter’s complaint with prejudice. Carter filed a motion for reconsideration, requesting one of two remedies: she asked that the court either reinstate her action or enter an order dismissing it without prejudice. The court denied Carter’s motion for reconsideration, and she appeals.

Because the defendants had already filed an answer to Carter’s complaint, she could only voluntarily dismiss her action if all the parties signed a stipulation of dismissal or if she secured a court order. See FED.R. CIV. P. 41(a). Carter acknowledges that she did not file a signed stipulation, so the district court properly construed Carter’s motion as one seeking its approval to dismiss her case. Under Rule 41(a)(2), the court had discretion to dismiss the case either with or without prejudice. The court determined that a dismissal with prejudice was proper, and it was within its discretion to do so.

But before the court entered the dismissal order, it should have given Carter an opportunity to withdraw her voluntary dismissal motion. Babcock v. McDaniel, 148 F.3d 797, 799 (7th Cir. 1998) (“When a plaintiff moves for dismissal without prejudice, the district court may not dismiss the action with prejudice without first providing the plaintiff a reasonable opportunity to withdraw the motion.”); Marlow v. Winston & Strawn, 19 F.3d 300, 305 (7th Cir. 1994) (“[A] plaintiff who moves for dismissal without prejudice under Rule 41(a)(2) must be given a reasonable opportunity to withdraw his motion in the event the district court grants the motion but only with prejudice.”). Carter requested just such an opportunity, and the court refused to give it to her. That was error.

We thus VACATE the district court’s judgment dismissing Carter’s action with prejudice, VACATE the order of costs, and REMAND the case to the district court for proceedings consistent with this opinion.

Vacated and remanded

Full Text

7^th Circuit Court of Appeals

Case Name: Stockbridge-Munsee Community v. State of Wisconsin, et al.

Case No.: 18-1449

Officials: EASTERBROOK, ROVNER, and ST. EVE, Circuit Judges.

Focus: Tribal Sovereignty

The Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701–21, establishes a framework under which tribes may conduct gambling on land held in trust for their use. Some kinds of gambling may be conducted by every tribe, in every state, without prior approval. But class III gambling, which includes slot machines and table games such as blackjack, may be offered only in states that allow at least some non-Indian groups to conduct similar gambling, and then only if tribe and state enter into a compact or contract covering the operation. 25 U.S.C. §2710. Both a federal commission (the National Indian Gaming Commission) and the federal judiciary oversee this process. See generally Michigan v. Bay Mills Indian Community, 572 U.S. 782 (2014).

The Community has two legal theories. First, it contends that Ho-Chunk Gaming Wittenberg is not located on a parcel of land that was held in trust for the tribe on or before October 17, 1988, a critical date under 25 U.S.C. §2719(a). The parcel was conveyed to the Nation in 1969, but with a condition that the Nation did not satisfy and that was not lifted until 1989—too late, the Community asserts, even though the Department of the Interior declared in 1986 that the parcel is part of the Nation’s trust lands. Second, the Community observes that the contract between the Nation and the State treats the Wittenberg casino as an “ancillary” gaming facility, a word that the contract defines as a place where gambling is not the primary business. The Community insists that gambling is the primary business at Wittenberg and faults the State for failing to enforce this contractual limitation.

In this appeal the Community contends that it is not subject to any time limit, both because it is a sovereign (and Wisconsin does not set time limits for its own suits) and because it seeks equitable relief against an ongoing violation of law. See Holmberg v. Armbrecht, 327 U.S. 392, 396 (1946). Wisconsin replies that, because the dispute involves commercial operations, the state itself would be subject to a time limit, so tribes are equally obliged to sue promptly. And the Nation leads with an argument that the federal court lacks subject-matter jurisdiction. Affirmed

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Board of Forensic Document Examiners, Inc., et al. v. American Bar Association, et al.

Case No.: 18-2653

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

Focus: Defamation Claim

The Board of Forensic Document Examiners brought a defamation action alleging reputational harm from an article published in an American Bar Association law journal. The district court dismissed the action, concluding that the article did not sufficiently identify the Board or any of its members as the subjects of criticism and, even if it had, expressed nothing more than the author’s opinion. Because we agree that the statements are non-actionable, constitutionally protected expressions of opinion, we affirm.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Walter Goudy v. Rodney J. Cummings, et al.

Case No.: 17-3665

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

Focus: Due Process Violation

In 1963 the Supreme Court announced that the prosecution team has a duty under the Due Process Clause of the Fourteenth Amendment to turn over material, exculpatory evidence to criminal defendants. Brady v. Maryland, 373 U.S. 83 (1963); see also Kyles v. Whitley, 514 U.S. 419 (1995); United States v. Bagley, 473 U.S. 667 (1985). Walter Goudy contends in this case that the state and local officials who pursued him for a 1993 murder failed to comply with their Brady obligations, and that he is entitled to damages under 42 U.S.C. § 1983 for the years he spent in prison. That request was based on his success in an earlier round of litigation, which culminated with this court’s ruling that Goudy was entitled to a writ of habeas corpus under 28 U.S.C. § 2254. Goudy v. Basinger, 604 F.3d 394 (7th Cir. 2010) (Goudy I). The state elected not to retry him; he was released; and 17 months later he filed this suit.

The district court winnowed the section 1983 action down to three allegations that the investigators in the case violated his due process rights, by (1) subjecting him to an improper show‐up procedure, (2) withholding a videotape showing a line‐up in which several witnesses identified a different person as the shooter, and (3) withholding interview notes showing that the other suspect initially had denied any involvement in the murder, but later switched his story. The court granted summary judgment for the defendants on all aspects of the case. We conclude that this was premature: Goudy presented enough evidence on the second and third arguments to move forward. We therefore reverse and remand for further proceedings.

Reversed and remanded

Full Text

7^th Circuit Court of Appeals

Case Name: United States of America v. Marcus C. Durham

Case No.: 18-3283

Officials: WOOD, Chief Judge.

Focus: In Forma Pauperis – Revocation

Marcus Durham is seeking to appeal from the district court’s order revoking his supervised release and imposing a sentence of an additional 30 months in prison. Durham’s supervised release relates to his conviction for conspiring to distribute and possessing with intent to distribute cocaine and cocaine base. For purposes of the proceedings in the district court, a magistrate judge had found that Durham was “financially unable to retain counsel,” as required by 18 U.S.C. § 3006A(b). Initially, Durham was represented by a court-appointed lawyer, but before the revocation hearing, that lawyer withdrew with the court’s permission. Durham was represented by retained counsel at the hearing. After the hearing, the court allowed retained counsel to withdraw. Durham then filed a motion pro se to proceed in forma pauperis (IFP) on appeal—a request he needed to make, because during the time he was able to engage retained counsel he was presumably also able to pay. His IFP status thus lapsed when appointed counsel left the case, see FED. R. APP. P. 24(A)(3). In support of his new motion, he cited his renewed inability “to retain counsel and pay for the costs attendant to the proceedings.”

I hereby GRANT Durham’s motion for leave to proceed in forma pauperis in his appeal from the district court’s revocation of his supervised release.

Granted

Full Text

7^th Circuit Court of Appeals

Case Name: Monk Chlad v. Mitchell Chapman

Case No.: 18-3056

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

Focus: Bankruptcy – Fraud

In 2013 Monik Chlad and her husband, Eric Vehovc, filed a joint petition under Chapter 7 of the Bankruptcy Code seeking to discharge about $5 million of debt. After Chlad and Vehovc filed financial disclosures in relation to their petition, two creditors brought an adversary proceeding objecting to the discharge. Alleging that the filings omitted information material to the debtors’ financial condition, the creditors invoked 11 U.S.C. § 727(a)(4) and sought to prevent the discharge. Following a bench trial, the bankruptcy court denied the discharge, finding that the omissions reflected material false statements made with fraudulent intent. The district court affirmed, and only Chlad has appealed. Seeing no clear error in the bankruptcy court’s factual findings, we too affirm the denial of discharge.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: George R. Sotelo v. United States of America

Case No.: 16-4144

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

Focus: Time-barred

In 1995, George R. Sotelo was convicted of three counts of mailing extortionate communications, 18 U.S.C. § 876(b), and three counts of mailing threatening communications, 18 U.S.C. § 876(c) 1 . After concluding that Sotelo was a career offender under U.S.S.G. § 4B1.1, which increases the punishment for a “crime of violence” committed after the defendant has two prior qualifying convictions, the district court sentenced him to a term of 262 months’ imprisonment. Sotelo neither appealed his sentence nor filed a collateral attack under 28 U.S.C. § 2255 within the one-year limitations period set forth in § 2255(f). But in 2016, he filed a § 2255 motion after the Supreme Court in Johnson v. United States, 135 S. Ct. 2551 (2015), invalidated as unconstitutionally vague a portion of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii), containing the same language as a portion of § 4B1.2 of the Guidelines (defining “crime of violence” in § 4B1.1). Although the government argued that Sotelo’s challenge did not fit within the exception in § 2255(f)(3) for motions filed outside of the one-year limitations period and was therefore untimely, the district court denied Sotelo’s motion on the merits. As explained below, we affirm the district court’s denial of Sotelo’s motion, not on the merits, but because Johnson does not open the door to Sotelo’s claim under § 2255(f)(3).

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: James V. Pennewell v. James Parish, et al.

Case No.: 18-3029

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

Focus: Abuse of Discretion – 8^th Amendment violation

James Pennewell is a Wisconsin state prisoner who became legally blind while incarcerated. He filed a pro se complaint alleging numerous defendants were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. The district court held that based on his adequate pleadings he was competent to litigate the case alone during the advanced pre-trial stages of the litigation. Because this determination was an abuse of discretion and the district court failed to give Pennewell’s motion particularized consideration, we reverse and remand with instructions to recruit counsel.

Reversed and remanded

Full Text

7^th Circuit Court of Appeals

Case Name: Johnny Webber, et al. v. Roger Butner

Case No.: 18-2866

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

Focus: Court Error – Admittance of Evidence

Plaintiff Johnny Webber was cut‐ ting down a tree on defendant Roger Butner’s property when a branch fell and hit Webber on the head, causing severe injuries. Webber and his wife Debora sued Butner for negligence. Webber was not wearing a hardhat when he was cutting the tree. The only issue on appeal is whether the district court erred by admitting evidence at trial that Webber was not using a hardhat and instructing the jury about considering that evidence.

This case is in federal court under diversity jurisdiction, see 28 U.S.C. § 1332, so we apply Indiana substantive tort law, which governs whether this evidence was relevant. In deter‐ mining fault, Indiana law bars admission of evidence that an injured plaintiff was not using safety equipment unless the failure to use the equipment contributed to causing the injury. See Ind. Code §§ 34‐51‐2‐7(b)(1) & 34‐51‐2‐3; Green v. Ford Motor Co., 942 N.E.2d 791, 795–96 (Ind. 2011). The fact that Webber was not wearing a hardhat did not cause the branch to fall and hit him on the head. The district court nevertheless ad‐ mitted this evidence for the purpose of apportioning fault. The admission of this evidence was an error, as was the instruction about considering the evidence. We cannot say these errors were harmless because the jury decided on a razor‐thin split when apportioning fault. The Webbers are entitled to a new trial.

The district court’s judgment for the defendant is VACATED, and the case is REMANDED for a new trial.

Vacated and remanded

Full Text

WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Gerald J. Vanderhoef

Case No.: 2016AP2052-CR

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

Focus: OWI – 6^th Offense

Gerald J. Vanderhoef appeals the judgment of conviction, following a no contest plea, of one count of operating while intoxicated (OWI), as a sixth offense. He also appeals from the order denying his postconviction motion for relief. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Marion Latrell Crawford

Case No.: 2017AP2046-CR; 2017AP2047-CR

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

Focus: Plea Withdrawal – Time-barred

Marion Latrell Crawford appeals judgments convicting him of two counts of pimping/pandering, one count of third-degree sexual assault, and one count of delivery of heroin. He also appeals the circuit court’s order denying his postconviction motion. Crawford argues that he should be allowed to withdraw his guilty pleas because the statute of limitations barred his conviction of one of the pimping/pandering charges. We affirm.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. M.D. Fisher

Case No.: 2017AP2290-CR

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

Focus: Sufficiency of Evidence

M.D. Fisher appeals a judgment convicting him of attempted first-degree intentional homicide with use of a dangerous weapon, attempted armed robbery, first-degree reckless injury with use of a dangerous weapon, and unlawfully possessing a firearm as a previously convicted felon. Fisher argues that there was insufficient evidence to support the jury’s verdict. We affirm.

Full Text

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Elmer J. Kakwitch

Case No.: 2017AP2521-CR

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

Focus: OWI – Suppression of Evidence

Elmer Kakwitch appeals a judgment, entered upon a jury’s verdicts, convicting him of operating a motor vehicle while intoxicated (“OWI”), as a fourth offense, and obstructing an officer. Kakwitch argues the circuit court erred by denying his pretrial motion for either dismissal of the OWI charge or suppression of evidence based on the State’s failure to preserve evidence. Kakwitch argues, in the alternative, that the circuit court erroneously exercised its discretion by denying Kakwitch’s request for a jury instruction on the spoliation of evidence. For the reasons discussed below, we reject these arguments and affirm the judgment.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Michael Exhavier Dunn

Case No.: 2018AP783-CR

Officials: Brennan, Brash and Dugan, JJ.

Focus: Equal Protection Violation

Michael Exhavier Dunn appeals from his judgment of conviction, entered upon a jury’s verdict, for robbery with the use of force as a party to a crime. Dunn also appeals the order denying his motion for postconviction relief.

Dunn argues that the constitutional requirement for a jury pool to represent a fair cross section of the community was violated here, and further, that he was denied equal protection when the State used two peremptory strikes to remove two African-American jurors from the pool. Dunn also makes a claim of ineffective assistance by his trial counsel due to his failure to cross-examine a witness for the State regarding her identification of Dunn from surveillance video. The postconviction court denied Dunn’s motion without a hearing. We affirm.

Full Text

WI Court of Appeals – District I

Case Name: Linda Haynes v. City of Milwaukee, et al.

Case No.: 2018AP900

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

Focus: Court Error – Residency Requirement

Linda Haynes appeals an order of the circuit court dismissing her action against Dr. Cully White, Aurora Health Care, Inc., Aurora Health Care Metro, Inc., and the Injured Patients and Families Compensation Fund (collectively, the defendants). Haynes argues that the circuit court erred in determining that she was not a resident of Wisconsin, thus requiring her to pay security for costs pursuant to WIS. STAT. § 814.28 (2017-18). She also argues that the court erred in dismissing her action pursuant to WIS. STAT. § 805.03. We affirm.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Alberto E. Rivera

Case No.: 2018AP952-CR

Officials: Brennan, Brash and Dugan, JJ.

Focus: Sufficiency of Evidence

Alberto E. Rivera appeals from a judgment of conviction, entered on a jury verdict, of being a felon in possession of a firearm as a repeater; first-degree intentional homicide with use of a dangerous weapon, as a party to a crime and as a repeater; attempted first-degree intentional homicide with use of a dangerous weapon, as a party to a crime and as a repeater; and two counts of armed robbery with use of force as a party to a crime and as a repeater.

Rivera argues that the trial court’s admission of other acts evidence was prejudicial error. He further argues that there was insufficient evidence for the jury to convict him of first-degree intentional homicide with use of a dangerous weapon, as a party to a crime; and, attempted first-degree intentional homicide with use of a dangerous weapon, as a party to a crime. We disagree and, therefore, affirm.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Clarence Christopher Joseph

Case No.: 2018AP1277

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

Focus: Court Error – Abuse of Discretion

Clarence Christopher Joseph, pro se, appeals from a circuit court order denying his postconviction motion to review his presentence investigation (PSI) report.  seph argues that the circuit court erroneously exercised its discretion when it denied his motion to review his PSI report. He asserts that the circuit court should have granted his request pursuant to WIS. STAT. § 972.15. He further argues that two cases support his request: State v. Parent, 2006 WI 132, 298 Wis. 2d 63, 725 N.W.2d 915, and State v. Skaff, 152 Wis. 2d 48, 447 N.W.2d 84 (Ct. App. 1989). Finally, he argues that he needs to review his PSI report to ensure the accuracy of information “that the DOC use[s] to classify his security status, program and rehabilitative needs and parole.” We examine each argument in turn. We affirm.

Full Text

WI Court of Appeals – District III

Case Name: Scottie Ard v. Board of Canvassers, et al.

Case No.: 2018AP1924-AC  

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

Focus: Jurisdiction

Ryan Sherley, pro se, appeals a circuit court order setting aside a determination by the St. Croix County Board of Canvassers (“the Board”) that Sherley was the winner of the April 3, 2018 election for St. Croix County Supervisor, District 13. The court concluded that a vote cast in Sherley’s favor should have been excluded from the Board’s recount and, further, that the Board conducted a drawdown contrary to the procedure set forth in WIS. STAT. § 9.01(1)(b). Accordingly, the court reversed the results of the Board’s recount and ordered the Board to perform a new recount.

Sherley contends the circuit court lacked jurisdiction to review both the excluded ballot and the Board’s recount procedures. In the alternative, he argues that the court erred by excluding the contested ballot and by determining that the Board failed to follow statutorily-prescribed recount procedures. We reject his arguments and affirm.

Full Text

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Brian J. Farmer

Case No.: 2017AP2184-CR

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

Focus: Sentencing Guidelines – Enhancement

Brian J. Farmer appeals his life sentence without the possibility of parole pursuant to the persistent repeater statute, WIS. STAT. § 939.62(2m)(a)1m., (b)2., and (c) (2017-18), after a jury convicted him of two counts of second-degree sexual assault of a child contrary to WIS. STAT. § 948.02(2). He challenges the application of the persistent repeater enhancer to his sentence on statutory and constitutional grounds. We affirm.

Full Text

WI Court of Appeals – District II

Case Name: Halquist Stone Company, Inc., et al. v. The Estate of Thomas Michael Linnan, et al.

Case No.: 2018AP1050

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

Focus: Abuse of Discretion – Allocation of Purchase Price

The Thomas M. Linnan Living Trust of 2004 and L. & W. Construction Company appeal from an order which allocated the purchase price between two parcels of real property following dissolution and partition actions involving Halquist Stone Company, Inc. We affirm as the circuit court did not erroneously exercise its discretion in its allocation decision.

Full Text

WI Court of Appeals – District II

Case Name: E.M.K.  v. Z.T.R.

Case No.: 2018AP1896

Officials: NEUBAUER, C.J.

Focus: Termination of Parental Rights

Z.T.R. appeals from an order terminating his parental rights to A.J.E.S. and challenges the circuit court’s refusal to give WIS JI—CHILDREN 346A, which asks the jury to determine whether Z.T.R. knew or had “reason to believe” that he was the child’s father before the DNA results confirmed that he was. Because the undisputed facts show that Z.T.R. had reason to believe that he was the father before the DNA results, we conclude the court did not err when it refused to give the requested instruction. We affirm.

Full Text

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Sean R. Wolfe, et al.

Case No.: 2018AP2268-CR; 2018AP2405-CR

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

Focus: Jurisdiction

These consolidated appeals require us to address our appellate jurisdiction in the context of postconviction criminal proceedings and a defendant’s first appeal as of right under WIS. STAT. § 974.02 (2017-18) and WIS. STAT. RULE 809.30. We hold that under established principles of finality, when a circuit court denies a RULE 809.30 postconviction motion in part and grants the motion in part such that further proceedings are required, an appeal cannot be taken until those further proceedings are completed. Because the judgments of conviction and the circuit court orders from which these appeals are taken do not dispose of the entire matter in litigation between the parties, we lack jurisdiction. These appeals are dismissed.

Recommended for Publication

Full Text

WI Court of Appeals – District III

Case Name: Mary V. Swanson v. Gerald O. Gatzke, D.D.S., Inc., et al.

Case No.: 2018AP305

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

Focus: Negligence – Malpractice

This is an appeal and cross-appeal of a money judgment entered in favor of Mary Swanson by the circuit court following a jury trial in which the jury returned a verdict in favor of Dr. Gerald Gatzke. Swanson, a former patient of Dr. Gatzke’s, sued Dr. Gatzke for dental malpractice. Dr. Gatzke admitted that he was negligent in his treatment of Swanson, but argued that Swanson’s own negligence contributed to her injury. The jury found that Swanson was negligent and apportioned liability at 60% to Swanson and 40% to Dr. Gatzke. Swanson moved the circuit court for a new trial. The court denied Swanson’s motion but sua sponte changed the jury’s apportionment of liability to 50% each. We conclude that the court erred in changing the jury’s apportionment of negligence, but affirm the court’s denial of Swanson’s motion for new trial.

Full Text

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Timothy E. Dobbs

Case No.: 2018AP319-CR

Officials: Sherman, Blanchard and Fitzpatrick, JJ.

Focus: Exclusion of Evidence – Expert Testimony

Timothy Dobbs appeals a judgment of conviction. The issues relate to exclusion of expert testimony on false confessions and whether statements by Dobbs should have been suppressed. We affirm.

Full Text

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Kevin L. Nash

Case No.: 2018AP731-CR

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

Focus: Abuse of Discretion – Plea Withdrawal

Kevin Nash appeals a judgment convicting him of second degree sexual assault of a child and an order denying his post-sentencing motion to withdraw his entry of an Alford plea on the ground of manifest injustice. See North Carolina v. Alford, 400 U.S. 25, 37-38 (1970) (addressing the constitutionality of a plea of no contest, resulting in a conviction, when the accused affirmatively denies guilt). The manifest injustice occurred, Nash contends, because the circuit court “erred in finding a sufficient factual basis to accept” his Alford plea. We conclude that the plea-taking court did not erroneously exercise its discretion in denying Nash’s post-sentencing plea withdrawal motion. This is because the court accepted the plea premised on a factual basis that, if proven at trial, would constitute “strong proof of guilt.” Accordingly we affirm.

Full Text

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Danny L. Waters

Case No.: 2018AP1455

Officials: SHERMAN, J.

Focus: OWI – Probable Cause

Danny L. Waters appeals a judgment of the circuit court finding that his refusal to submit to a chemical test was unreasonable. Waters contends that his driver’s license should not have been revoked because the investigating officer lacked probable cause to believe that he had been operating a vehicle while under the influence of an intoxicant (OWI). For the reasons discussed below, I affirm.

Full Text

WI Supreme Court Digests

WI Supreme Court

Case Name: Ann Cattau, et al. v. National Insurance Services of Wisconsin, Inc., et al.

Case No.: 2019 WI 46

Focus: Failure to State Claim

We review an unpublished decision of the court of appeals affirming an order of the circuit court that dismissed plaintiffs’ claims. Plaintiffs, a group of 61 retired Neenah teachers and administrators, sued MidAmerica Administrative & Retirement Solutions, Inc. (MidAmerica) and National Insurance Services of Wisconsin, Inc. (NIS). MidAmerica and NIS moved to dismiss for failure to state a claim upon which relief may be granted. The plaintiffs attempted to plead breach of fiduciary duty, negligent misrepresentation, strict responsibility misrepresentation, and negligence, all arising from MidAmerica and NIS’s alleged mismanagement of their retirement benefits.

The court of appeals affirmed the circuit court’s dismissal of plaintiffs’ claims against MidAmerica and NIS. The court of appeals held that our decision in Data Key Partners v. Permira Advisers LLC, 2014 WI 86, 356 Wis. 2d 665, 849 N.W.2d 693, created a new, heightened pleading standard in Wisconsin, and that under this new standard, plaintiffs had failed to state a claim upon which relief may be granted. We granted review and unanimously conclude that our decision in Data Key did not change Wisconsin’s pleading standard as previously articulated in Strid v. Converse, 111 Wis. 2d 418, 422-23, 331 N.W.2d 350 (1983). Accordingly, we reverse the decision of the court of appeals in this regard. However, notwithstanding that unanimous conclusion, we are equally divided as to whether the plaintiffs have stated a claim upon which relief may be granted against MidAmerica or NIS based on the Data Key/Strid standard. Therefore, the decision of the court of appeals is affirmed by an equally divided court. Wingra Redi-Mix, Inc. v. Burial Sites Pres. Bd., 2018 WI 54, ¶1, 381 Wis. 2d 601, 912 N.W. 392.

Accordingly, because we unanimously conclude that our decision in Data Key did not change Wisconsin’s pleading standard as previously articulated in Strid, we reverse the decision of the court of appeals’ interpretation of Data Key. However, notwithstanding our unanimous conclusion, we are equally divided as to whether the plaintiffs have stated a claim upon which relief may be granted against MidAmerica or NIS based on the Data Key/Strid standard. Therefore, the decision of the court of appeals is affirmed by an equally divided court. Wingra Redi-Mix, 381 Wis. 2d 601, ¶1.

Affirmed

Concur:

Dissent:
Full Text

WI Supreme Court

Case Name: Yaseem Daniel, et al. v. Armlist, LLC, et al.

Case No.: 2019 WI 47

Focus: Communications Decency Act Violation

We review a decision of the court of appeals reversing the circuit court’s dismissal of Yasmeen Daniel’s complaint against Brian Mancini, Jonathan Gibbon, and Armslist, LLC (collectively “Armslist”). Daniel’s tort action arose from a mass shooting in a Brookfield, Wisconsin spa that killed four people, including Daniel’s mother Zina Daniel Haughton. Daniel alleged that the shooter, Radcliffe Haughton, illegally purchased the firearm after responding to private seller Devin Linn’s post on Armslist’s firearm advertising website, armslist.com. The court of appeals held that 47 U.S.C. § 230 (2018), the federal Communications Decency Act of 1996 (CDA), did not bar Daniel’s claims against Armslist for facilitating Radcliffe’s illegal purchase.

We disagree, and conclude that § 230(c)(1) requires us to dismiss Daniel’s complaint against Armslist. Section 230(c)(1) prohibits claims that treat Armslist, an interactive computer service provider, as the publisher or speaker of information posted by a third party on its website. Because all of Daniel’s claims for relief require Armslist to be treated as the publisher or speaker of information posted by third parties on armslist.com, her claims are barred by § 230(c)(1). Accordingly, we reverse the decision of the court of appeals, and affirm the circuit court’s dismissal of Daniel’s complaint.

Reversed

Concur:

Dissent: A.W. BRADLEY, J. dissents (opinion filed).
Full Text

WI Supreme Court

Case Name: State of Wisconsin v. John Patrick Wright

Case No.: 2019 WI 45

Focus: 4^th Amendment Violation

This is a review of an unpublished decision of the court of appeals affirming an order of the Circuit Court for Milwaukee County, Hannah Dugan, Judge, granting John Patrick Wright’s motion to suppress evidence. The appeal was decided by one judge, Joan F. Kessler, pursuant to Wis. Stat. § 752.31(2)(f) (2015-16). John Patrick Wright, the defendant, was charged with unlawfully carrying a concealed weapon in violation of Wis. Stat. § 941.23(2). The weapon was discovered in Wright’s vehicle’s glove compartment during a traffic stop. Wright did not hold a valid permit to carry a concealed weapon, commonly referred to as a CCW permit.

Wright filed a motion to suppress the evidence. Wright admitted that the traffic stop was lawfully initiated because it was supported by reasonable suspicion that Wright was violating the traffic code. Wright argued, however, that the police violated the Fourth Amendment by taking three actions unsupported by reasonable suspicion of criminal activity: (1) the police asked Wright whether he had a weapon in the vehicle; (2) the police asked Wright whether he held a permit to carry a concealed weapon; and (3) the police verified whether Wright in fact had a valid CCW permit (a CCW permit check).

The case presents three Fourth Amendment issues: (1) in the absence of reasonable suspicion of criminal activity, may an officer ask a lawfully stopped motorist about the presence of weapons; (2) in the absence of reasonable suspicion of criminal activity, may an officer ask a lawfully stopped motorist whether the motorist holds a CCW permit; and (3) in the absence of reasonable suspicion of criminal activity, may an officer conduct a CCW permit check. We conclude that, in the instant case, none of the officer’s questions or actions violated the Fourth Amendment.

We conclude that Wright’s Fourth Amendment rights were not violated when the officer asked Wright about the presence of weapons in the vehicle. As this court stated in State v. Floyd, 2017 WI 78, ¶28 377 Wis. 2d 394, 898 N.W.2d 560, questioning a lawfully stopped motorist about the presence of weapons relates to officer safety and is negligibly burdensome. The question is part of the traffic stop’s mission.

Accordingly, we reverse the decision of the court of appeals, vacate the circuit court’s order granting Wright’s motion to suppress, and remand the cause to the circuit court for further proceedings.

Reversed and remanded

Concur:

Dissent:
Full Text

WI Supreme Court

Case Name: State of Wisconsin v. Dennis L. Schwind

Case No.: 2019 WI 48

Focus: Inherent Authority

We review an unpublished summary disposition order of the court of appeals, which affirmed the circuit court’s order denying Dennis L. Schwind’s motion for early termination of probation. Schwind asserts that the Wisconsin Constitution gives circuit courts the inherent authority to reduce or terminate a term of probation for cause. He argues that Wis. Stat. § 973.09(3)(d), which directs the circuit court that it may reduce or terminate a term of probation if six requirements are met, cannot restrict the court’s inherent authority to reduce or terminate a term of probation for cause.

We conclude that the circuit court does not have inherent authority to grant Schwind’s motion for early termination of probation. Inherent authority of courts consists of only those powers that are necessary for the judiciary to accomplish its constitutionally mandated functions and preserve its role as a coequal branch of government. Probation is a statutory creation, and the power to reduce or terminate a term of probation is not necessary for courts to accomplish their constitutionally mandated functions. Therefore, Wisconsin courts do not have the inherent authority to reduce or terminate a period of probation. Accordingly, we affirm the decision of the court of appeals.

Affirmed

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

Dissent:
Full Text

Supreme Court Digests

United States Supreme Court

Case Name: Gary Thacker, et ux. V. Tennessee Valley Authority

Case No.: 17-1201

Focus: Sovereign Immunity

Federal law provides that the Tennessee Valley Authority (TVA), a Government-owned corporation supplying electric power to millions of Americans, “[m]ay sue and be sued in its corporate name.” Tennessee Valley Authority Act of 1933 (TVA Act), 48 Stat. 60, 16 U. S. C. §831c(b). That provision serves to waive sovereign immunity from suit. Today, we consider how far the waiver goes. We reject the view, adopted below and pressed by the Government, that the TVA remains immune from all tort suits arising from its performance of so-called discretionary functions. The TVA’s sue-and-be-sued clause is broad and contains no such limit. Under the clause—and consistent with our precedents construing similar ones—the TVA is subject to suits challenging any of its commercial activities. The law thus places the TVA in the same position as a private corporation supplying electricity. But the TVA might have immunity from suits contesting one of its governmental activities, of a kind not typically carried out by private parties. We remand this case for consideration of whether that limited immunity could apply here.

Reversed and remanded

Dissenting:

Concurring:
Full Text