Weekly Case Digests – September 3, 2019 – September 6, 2019

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Michael O. Campos v. Cook County, et al.

Case No.: 18-3472

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

Focus: Due Process Violation

After Michael Campos’s August 2011 arrest for driving under the influence, his employer—the Cook County Sheriff’s Office—began termination proceedings. The Merit Board has voted to terminate Campos’s employment on two occasions. But both times the Cook County Circuit Court vacated the decision. And, to this day, the termination proceedings are ongoing. Instead of waiting for their completion, Campos filed this federal law suit alleging, among other things, that the protracted proceedings have violated his substantive due process rights. Because Campos has not met the high standard for stating a substantive due process claim, we affirm the district court’s dismissal of his claims.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Scott N. Jaffe v. Laverne Williams

Case No.: 18-2726

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

Focus: Bankruptcy – Exemption of Contingent Future Interests

Section 522(b)(1) of the United States Bankruptcy Code states that a “debtor may exempt from property of the [bankruptcy] estate the property listed in either paragraph (2) or, in the alternative paragraph (3).” At issue in this case is paragraph (3) subsection (B), which states, in full, that: Property listed in this paragraph is any interest in property which the debtor had, immediately before the commencement of the case, an interest as a tenant by the entirety or joint tenant to the extent that such interest as a tenant by the entirety or joint tenant is exempt from process under applicable nonbankruptcy law.

11 U.S.C. § 522(b)(3)(B). We must determine to what extent contingent future interests created by Illinois law are exempt under this section. The most natural reading of the statute exempts any interest held by an individual as a tenant by the entirety to the extent that state law exempts that particular interest. The district court found that any interest held by the debtor is exempt to the extent that state law exempted the entirety interest. We reverse the district court and hold that the debtor’s property cannot be excluded from the bankruptcy estate.

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: United States of America v. Otis Hunter, et al.

Case No.: 18-2013; 18-2044

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

Focus: 6^th Amendment Violation

Police arrested five men involved in a string of Milwaukee armed robberies in late 2016. Three of the defendants cooperated with the government and pled guilty. The two remaining defendants, Otis Hunter and Deshawn Evans, proceeded to trial where a jury convicted them. Through counsel, the pair challenges the district court’s handling of jury selection and denial of their Batson challenge.

They also challenge our circuit precedent and argue that the district court violated the Sixth Amendment’s Confrontation Clause when it prevented them from cross‐examining government witnesses about the specific prison terms they avoided through their cooperation. After obtaining authorization from the court, Hunter made additional, pro se arguments challenging how the trial court handled witness testimony and whether the government provided sufficient evidence to support his conviction. All challenges are rejected and we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Patrick J. Doherty v. Federal Deposit Insurance Corporation, et al.

Case No.: 18-3133

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

Focus: Default Action – Res Judicata

Washington Federal Bank brought a default action against Patrick Doherty, John Farano, Jr., and Worth Conversion, LLC, for notes related to various real estate ventures. Doherty raised affirmative defenses on behalf of himself and Worth, but the bank dismissed Doherty and Worth from the action, without prejudice, after obtaining a default judgment against Farano. Doherty then attempted to bring this suit against the bank with claims founded on similar grounds as his previously-raised affirmative defenses. But the Cook County Circuit Court determined that Doherty’s claims were barred by res judicata thanks to the default judgment entered against Farano. Doherty appealed to the Illinois Appellate Court, but before his appeal was heard, Washington Federal was placed into the Federal Deposit Insurance Corporation’s receivership. The FDIC removed this action to the district court, which adopted the Illinois Circuit Court’s decision. Because res judicata does not bar Doherty’s claims, we vacate and remand for further proceedings.

Vacated and remanded

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7^th Circuit Court of Appeals

Case Name: Donald N. Timm, et al. v. Goodyear Dunlop Tires North America, LTD., et al.

Case No.: 18-2641

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

Focus: Duty to Warn – Product Liability

Donald and Mary Timm sustained serious injuries in a horrific motorcycle accident. Believing defects with the motorcycle and its rear tire caused the accident—and that their injuries were especially severe because of a defect with their helmets—the Timms brought a products liability action under Indiana law against numerous defendants involved in the sale and manufacture of the motorcycle, its rear tire, and the helmets they wore at the time of the accident. Concluding that the Timms failed to present admissible expert testimony to support their claims, the district court entered summary judgment for the defendants. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Eric J. Mapes v. State of Indiana, et al.

Case No.: 19-1384

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

Focus: Court Error – Abuse of Discretion

Eric Mapes was arrested for trespassing after being refused service at a CVS store. He sued the State of Indiana, CVS, and a number of individual defendants asserting a long list of grievances under federal and state law. Mapes asked the district court to recruit counsel for him. The district judge denied that request, dismissed Mapes’s complaint without prejudice for failure to state a claim, and suggested several amendments to the complaint. Mapes did not heed that advice and now appeals the judge’s refusal to recruit counsel. We affirm. The judge did not abuse her discretion when she denied his request for pro bono counsel, provided an opportunity to amend, and offered instructions on how best to do so without a lawyer.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Louis Wozniak v. Ilesanmi Adesida, et al.

Case No.: 18-3315

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

Focus: Wrongful Termination

The University of Illinois fired Louis Wozniak in 2013. Until then he had tenure on the faculty of the College of Engineering. But after Wozniak waged an extended campaign against students who did not give him an award, the University’s Board of Trustees decided that he had violated the institution’s norms and rules, including the need to treat students with respect. As he had done before when the University insisted that he follow school policies, Wozniak responded with a federal lawsuit. He lost the last time, see Wozniak v. Conry, 236 F.3d 888 (7th Cir. 2001), and loses this time too.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Michael Alonso, et al. v. Leslie J. Weiss, et al.

Case No.: 18-1740; 18-1791

Officials: SYKES, SCUDDER, and ST. EVE, Circuit Judges.

Focus: Breach of Fiduciary Duty

This appeal centers on the performance of the court-appointed receiver of financial advisory firm Nutmeg Group, LLC. The district court appointed the receiver after the Securities and Exchange Commission initiated an enforcement action against Nutmeg and its managing member, Randall Goulding. Against the Commission’s allegations of ongoing fraud and misappropriation of client assets, the district court presiding over the SEC matter entered a temporary restraining order prohibiting Goulding from operating Nutmeg and appointed a receiver to oversee all aspects of the firm’s business.

This civil suit followed. Goulding and a group of limited partners in one or more of the Nutmeg funds alleged that the receiver breached her fiduciary duties and, in doing so, reduced the value of the funds’ assets. After dismissing certain counts, the district court entered summary judgment in the receiver’s favor on all remaining claims. Because we agree that no reasonable jury could find that the receiver engaged in a willful, deliberate, or even grossly negligent breach of a fiduciary duty, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Bradley A. Lavite v. Alan J. Dustan, et al.

Case No.: 18-3465

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

Focus: Ban From Administrative Building For Cause – Summary Judgment – Supplemental Jurisdiction

Plaintiff Bradley Lavite is a combat veteran who works in the Administration Building of Madison County, Illinois, as superintendent for the County’s Veterans Assistance Commission. In the spring of 2015, government officials in Madison County banned Lavite from the Administration Building indefinitely. They did so shortly after learning that Lavite had experienced a PTSD episode during which he threatened a police officer and then kicked out the windows of a squad car.

The ban lasted for nearly 20 months. Lavite kept his job the entire time but had to work remotely. A few months before the ban was lifted, Lavite filed this lawsuit against Madison County and the government officials he deemed responsible. He alleged seven federal claims and one state-law claim. The district court granted summary judgment for the defendants on all federal claims and declined to exercise supplemental jurisdiction over the remaining state-law claim. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Frankie Brown, et al.

Case No.: 18-2644; 18-2760

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

Focus: Due Process Violation

Frankie Brown pled guilty to distributing a controlled substance. Marcus Thornton pled guilty to bank robbery and an associated firearms charge. The same district court separately imposed terms of supervised release on both defendants, in addition to imprisonment. The court set several conditions of supervised release, including both mandatory and discretionary conditions. But it also imposed a set of “administrative conditions,” which the probation office deemed “applicable whenever supervision is imposed, regardless of the substantive conditions that may also be imposed.” Both defendants now contend that the imposition of administrative conditions violated their due process rights under the Fifth Amendment.

We consolidate the two appeals because of the overlapping legal question. But neither defendant objected to the conditions in the district court, and so both waived the issue altogether. The defendants’ other challenges also fail. We therefore affirm the sentences.

Affirmed

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7^th Circuit Court of Appeals

Case Name: John Evans v. Susan Griffin, et al.

Case No.: 17-1957

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

Focus: 8^th Amendment Violation

John Evans is a state prisoner and, unquestionably, not a healthy man. His most recent malady is the subject of this lawsuit. Evans alleges that he developed nasal polyps and that the prison medical staff refused to authorize surgery—the only effective remedy—for him. Frustrated within the prison, he brought this suit under 42 U.S.C. § 1983, alleging a violation of his Eighth Amendment rights. The district court never reached the merits of that claim, however, because it dismissed Evans’s case with prejudice as a discovery sanction. Dr. Francis Kayira, one of the defendants, attempted to depose Evans. Kayira noticed the deposition by mail on Thursday, February 16, 2017, for the next Tuesday, February 21. Evans swears that he did not receive that notice until February 22, the day after the designated time. When, on the 21st, he was brought out from his cell to meet with the defendants’ lawyers, he says that he had no idea why they were there. Further, he was feeling ill and could not (and would not) sit for the deposition. Evans refused to be sworn or to answer any questions.

Thwarted in his discovery effort, Kayira moved for sanctions, seeking either reimbursement for the costs of the failed deposition or dismissal with prejudice. The district court granted the latter sanction, citing Federal Rules of Civil Procedure 37(b) and 37(d) and finding that a sanction of costs would be fruitless because Evans is an indigent prisoner. Although dismissal is indeed sometimes the proper sanction for a discovery violation, we conclude that the district court jumped too quickly in that direction. We therefore reverse and remand for further proceedings.

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: Windridge of Naperville Condominium Association v. Philadelphia Indemnity Insurance Company

Case No.: 18-2103

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

Focus: Insurance Claim – Coverage

This appeal presents an insurance coverage dispute between Windridge of Naperville Con‐ dominium Association and Philadelphia Indemnity Insurance Company. On May 20, 2014, a hail and wind storm dam‐ aged buildings owned by Windridge. The buildings were insured by Philadelphia Indemnity. The storm physically damaged the aluminum siding on the buildings’ south and west sides. Philadelphia Indemnity contends that it is required under the insurance policy to replace the siding only on those sides. Windridge argues that replacement siding that matches the undamaged north and east elevations is no longer available, so Philadelphia Indemnity must replace the siding on all four sides of the buildings so that all of the siding matches. The district court granted summary judgment to Windridge on that coverage issue. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Demetrise L. Harper

Case No.: 18-1725

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

Focus: Ineffective Assistance of Counsel

Demetrise Harper appeals from the district court’s denial of his motion to withdraw his plea of guilty to three charges: possession of a firearm in furtherance of a drug-trafficking crime, 18 U.S.C. § 924(c); possession of a firearm by a felon, id. § 922(g); and possession with intent to distribute and distribution of a controlled substance, 21 U.S.C. § 841(a)(1), (b)(1)(C). In moving to withdraw his plea, Harper argued that he was innocent of the first because he never “possessed” the gun, and that his plea was not knowing and voluntary because he had received ineffective assistance of counsel. We affirm the judgment.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Beth LaVallee v. Med-1 Solutions, LLC,

Case No.: 17-3244

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

Focus: FDCPA Violation

Debt collector Med-1 Solutions, LLC, attempted to recover two unpaid medical bills on behalf of Beth Lavallee’s healthcare provider. The Fair Debt Collection Practices Act (“FDCPA” or “the Act”) required Med-1 to disclose certain information to Lavallee about her debts within a specific time frame. 15 U.S.C. § 1692g(a). Med-1 could satisfy its § 1692g(a) disclosure obligations by including the required information in its “initial communication” with Lavallee or by sending “a written notice containing” the disclosures within five days after that “initial communication.” Id.

In March and April 2015, Med-1 sent Lavallee two emails, one for each debt. The emails contained hyperlinks to a Med-1 vendor’s web server. Once there, a visitor had to click through multiple screens to access and download a .pdf document containing the disclosures required by § 1692g(a). Lavallee never opened these emails. When the hospital called her in November to discuss a different medical debt, she learned about the earlier debts and was told that they had been referred to Med-1 for collection. She then called Med-1 to inquire about them, but the debt collector didn’t provide the required disclosures. Nor did it send a written notice within the next five days.

Lavallee sued Med-1 for violating § 1692g(a). She alleged that Med-1 never provided the statutory disclosures, either during the November phone call or within five days as required. Med-1 responded that its March and April emails were the “initial communication[s]” and argued that they contained the mandatory disclosures. A magistrate judge, presiding by consent, 28 U.S.C. § 636(c), granted Lavallee’s motion for summary judgment.

We affirm. Med-1 concedes its failure to send Lavallee a written notice within five days of her phone call. This appeal rests on Med-1’s contention that its emails were initial communications that contained the required disclosures. But the emails do not qualify under the Act’s definition of “communication” because they did not “convey[] … information regarding a debt.” 15 U.S.C. § 1692a(2). Nor did the emails “contain” the statutorily mandated disclosures. § 1692g(a). At most the emails provided a means to access the disclosures via a multistep online process. Because Med-1 violated § 1692g(a), the judge was right to enter judgment for Lavallee.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Stanislaw Sterlinski v. Catholic Bishop of Chicago

Case No.: 18-2844

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

Focus: Title VII Violation

Saint Stanislaus Bishop & Martyr Parish in Chicago hired Stanislaw Sterlinski in 1992 as Director of Music. In 2014 the Parish’s priest (Anthony Dziorek, C.R.) demoted Sterlinski to the job of organist and in 2015 fired him outright. He contends in this employment discrimination suit against the Bishop of Chicago that the Parish held his Polish heritage against him. Until his demotion he could have been fired for any reason, because as Director of Music he held substantial authority over the conduct of religious services and would have been treated as a “minister” for the purpose of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012), which holds that Title VII of the Civil Rights Act of 1964 does not apply to ministers. But as organist, Sterlinski says, he was just “robotically playing the music that he was given” and could not be treated as a minister. The district court disagreed with this proposed distinction between music-related positions and granted summary judgment to the Bishop. 319 F. Supp. 3d 940 (N.D. Ill. 2018).

The record shows that organ playing serves a religious function in the life of Saint Stanislaus Bishop & Martyr Parish. Under the rationale of Hosanna-Tabor, Sterlinski’s discharge is therefore outside the scope of Title VII.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Valbruna Slater Steel Corporation, et al. v. Josyln Manufacturing Company, et al.

Case No.: 18-2633; 18-2738

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

Focus: CERCLA Claim – Time-barred

This case is about an on-and-off, decades-long effort to stop an Indiana steel mill’s pollution. Valbruna Slater Steel purchased the mill (or the “site”) in 2004, and it quickly got to work on needed, but costly, cleanup efforts. Valbruna then sued Joslyn Manufacturing Company, which last operated the site in 1981, to recover costs under both the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and Indiana’s Environmental Legal Actions statute (ELA).

Joslyn’s fault is undisputed; its operation of the site started the pollution problems. But Joslyn defended itself in the district court on claim-preclusion, statute-of-limitations, and contribution grounds. The district court decided the CERCLA claim was not precluded, but the ELA claim was. It also decided the suit was timely. The district court, however, did impose equitable contribution on Valbruna, requiring it to pay for a quarter of the past and future costs incurred during the site’s cleanup. Joslyn appeals and Valbruna cross-appeals. We affirm across the board.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Rita Boucher v. United States Department of Agriculture, et al.

Case No.: 16-1654

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

Focus: Converted Wetlands Classification – Abuse of Discretion  

In the mid- to late-1990s, the late David Boucher cut down nine trees on his family farm in Indiana. For almost two decades, the United States Department of Agriculture (USDA) has disagreed, first with Mr. Boucher and now his widow, plaintiff Rita Boucher, about whether that modest tree removal converted several acres of wetlands into croplands, rendering the Bouchers’ entire farm ineligible for USDA benefits that would otherwise be available.

Since at least 1985, federal law and regulatory policy have tried to remove financial incentives for destruction of environmentally important wetlands. In this case, however, the record shows arbitrary and capricious action by the agency. The USDA repeatedly failed to follow applicable law and agency standards. It disregarded compelling evidence showing that the acreage in question never qualified as wetlands that could have been converted illegally into croplands. And the agency has kept shifting its explanations for treating the acreage as converted wetlands. The USDA’s treatment of the Bouchers’ acreage as converted wetlands easily qualifies as arbitrary, capricious, and an abuse of discretion. See 5 U.S.C. § 706(2)(A). We reverse the district court’s affirmance of the USDA’s final determination and remand the case to the district court to enter judgment granting appropriate relief to plaintiff Rita Boucher.

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: Local 702, International Brotherhood of Electrical Workers, et al. v. National Labor Relations Board, et al.

Case No.: 18-3322

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

Focus: NLRA Violation

Pat Hudson was a long time employee of Consolidated Communications (“Consolidated”), who was discharged due to strike-related misconduct. Following an appeal to the D.C. Circuit Court, the National Labor Relations Board (the “Board”) issued a supplemental decision concluding that Consolidated did not violate § 8(a)(3) of the National Labor Relations Act (the “Act”), as codified at 29 U.S.C. § 158(a)(3). For the reasons that follow, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Fifth Third Mortgage Company v. Ira Kaufman, et al.

Case No.: 18-3295

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

Focus: Insurance Claim – Liability

Fifth Third Mortgage Company sued several individuals and businesses after it fell victim to a mortgage fraud scheme. At issue in this appeal is the personal liability of Ira Kaufman. Kaufman participated in numerous fraudulent closings as the attorney for the seller. Kaufman is also the owner of Traditional Title Company, LLC, which was the title company used for several closings that facilitated the fraud. For the reasons that follow, the judgment against Kaufman is affirmed.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Kimberly Blinsky v. American Airlines, Inc.,

Case No.: 18-3107

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

Focus: Order Correcting Opinion

American Airlines employed Kimberly Bilinsky for more than two decades. That employment continued without issue after Bilinsky contracted multiple sclerosis (“MS”) in the late 1990s. American provided a “Work from Home Arrangement” (“WFHA”), which permitted Bilinsky to do her job from her home in Chicago, even though her colleagues operated out of the company headquarters in Dallas. But after a 2013 merger, American restructured its operations and informally repurposed Bilinsky’s department. The executives determined that the new duties required the in-person involvement of the employees, so the company rescinded the arrangement and demanded that Bilinsky relocate to Texas to work face-to-face. Once negotiations collapsed, American terminated Bilinsky.

This lawsuit under the Americans with Disabilities Act (“ADA”) followed. 42 U.S.C. § 12111 et seq. The district court granted summary judgment to American, finding that Bilinsky was no longer qualified for the position in light of the changes in her responsibilities. Because Bilinsky’s evidence does not counter that assertion, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: John H. Burton v. Kohn Law Firm, S.C., et al.

Case No.: 18-2059

Officials: FLAUM, RIPPLE, and MANION, Circuit Judges.

Focus: Sufficiency of Evidence

The history of this litigation began in the circuit court for Brown County, Wisconsin. Kohn Law Firm, S.C. (“Kohn”), acting on behalf of Unifund CCR, LLC (“Unifund”), a debt collection agency, brought an action against John H. Burton. Unifund sought to collect from Mr. Burton a debt incurred on a Citibank, N.A. (“Citibank”), credit card account. Mr. Burton denied knowledge of, or any association with, that account. While that action was pending in state court, Mr. Burton filed the present lawsuit against Kohn in the United States District Court for the Eastern District of Wisconsin. He alleged that, with respect to the same debt, Kohn had violated the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692–1692p, and the Wisconsin Consumer Act (“WCA”), Wis. Stat. §§ 421–427, by filing the Wisconsin action against Mr. Burton without first providing him notice of his right to cure the default.

The Wisconsin state court later dismissed Kohn’s action against Mr. Burton on the basis of Mr. Burton’s denial that he was the individual who had incurred the underlying debt. Mr. Burton then amended his complaint in this federal action to add Unifund as a defendant. Following crossmotions for summary judgment by the parties, the magistrate judge, sitting as the district court, entered judgment in favor of Kohn and Unifund. The district court held that Mr. Burton could not proceed on his FDCPA or WCA claims because he had failed to present sufficient evidence that the debt incurred on the Citibank account was for personal, family, or household purposes and therefore a “consumer debt.” Mr. Burton now challenges that determination.

We agree with the district court. On the record before us, Mr. Burton has not come forth with sufficient evidence that the debt in question is a consumer debt. Accordingly, we affirm the judgment of the district court.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Sean T. Pugh

Case No.: 2016AP2505; 2017AP1619

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

Focus: 6^th Amendment Violation

Sean Pugh, pro se, appeals two orders denying successive motions and relief he sought through letters he filed in the circuit court seeking the appointment of counsel, postconviction discovery, and postconviction relief from a 2013 judgment of conviction for multiple drug offenses. Pugh has previously filed a direct appeal and a petition for a writ of habeas corpus arising from the same case, both with the assistance of counsel. We conclude that Pugh’s current claims for relief from the judgment of conviction are procedurally barred by the prior proceedings and that the court properly denied Pugh’s request for the appointment of counsel given the procedural posture of the case.

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WI Court of Appeals – District III

Case Name: County of Dunn v. Cashe L. Newville

Case No.: 2018AP1167

Officials: SEIDL, J.

Focus: OWI – Motion to Suppress Evidence Denied

Cashe Newville appeals an order that adjudged him guilty of first-offense operating while under the influence of a controlled substance (OWI), contrary to WIS. STAT. § 346.63(1)(a). He contends the circuit court erred by denying his motion to suppress the results of an evidentiary chemical test of his blood. We reject Newville’s arguments and conclude the court properly denied his suppression motion. We therefore affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Timothy Michael Kielb

Case No.: 2018AP1866-CR

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

Focus: Court Error – Abuse of Discretion

Timothy Kielb was convicted of one count of burglary of a building or dwelling, as a party to the crime. The circuit court ordered him to pay the victims $7589.47 in restitution. Kielb now appeals, challenging three items of restitution that the court ordered him to pay: (1) the cost the victims paid to install a security system; (2) approximately four years of monthly maintenance fees for the security system; and (3) the cost to flush the gas tank of the victims’ motorcycle. Kielb contends the court could not award these amounts as restitution, as a matter of law, because they would not have been recoverable in a civil action against Kielb for his conduct in the commission of a crime considered at sentencing. See WIS. STAT. § 973.20(5)(a) (2017-18). He also argues the court erroneously exercised its discretion by awarding as restitution the cost to flush the motorcycle’s gas tank and the monthly maintenance fees for the victims’ security system. In the alternative, Kielb argues his trial attorney was ineffective by failing to argue that the costs identified above could not be awarded as restitution based on the civil action limitation in § 973.20(5)(a).

We conclude as follows: (1) Kielb forfeited his argument that the civil action limitation in WIS. STAT. § 973.20(5)(a) barred the circuit court from awarding the disputed expenses as restitution; (2) Kielb’s trial attorney was not ineffective by failing to object to those expenses based on the civil action limitation; and (3) the court did not erroneously exercise its discretion by awarding the victims the cost to flush their motorcycle’s gas tank. We therefore affirm in part.

However, we conclude the circuit court erroneously exercised its discretion by ordering Kielb to pay approximately four years of monthly maintenance fees for the victims’ security system. The court failed to acknowledge that it had received conflicting evidence as to whether the monthly maintenance fees could be distinguished from the cost to install the security system. In addition, the court did not adequately explain why it decided to award four years of monthly maintenance fees, as opposed to some other amount. Finally, the court failed to address Kielb’s argument that ordering him to pay four years of monthly maintenance fees would be inequitable under the circumstances. We therefore remand for the court to readdress the issue of monthly maintenance fees. On remand, the court must determine what amount the victims paid to install the security system, as distinct from the monthly maintenance fees. The court must then determine what portion of the maintenance fees, if any, Kielb should be required to pay as restitution.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Darius Kavonta Smith

Case No.: 2019AP642-CR; 2019AP643-CR

Officials: BRASH, P.J.

Focus: Double Jeopardy

Darius Kavonta Smith appeals from nonfinal orders of the trial court denying his motion to bar a retrial of the charges against him on the ground that it would violate double jeopardy. A trial on those charges— disorderly conduct as an act of domestic abuse and misdemeanor bail jumping— was held in August 2018. It resulted in a mistrial after the court determined that statements made by the State during closing arguments were improper and prejudicial to Smith: the State commented on witnesses that had not been called by Smith, which could have been construed by the jury as shifting the burden of proof to Smith; the State also made reference to the fact that Smith’s counsel was a public defender, which could have had a prejudicial effect on Smith if the jury had a negative view of public representation.

In his motion to bar a retrial, Smith argued that a retrial would violate double jeopardy because the State’s comments amounted to prosecutorial overreach; thus, retrial is prohibited. The trial court disagreed, finding that the comments by the State were not made to intentionally prejudice the proceedings and cause a mistrial. It therefore denied Smith’s motion. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Malcolm J. Sanders

Case No.: 2018AP1310-CR

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

Focus: Equal Protection Violation

Malcolm Sanders appeals from a judgment of conviction entered after a jury found him guilty of two counts of delivering heroin, as a repeater and as a party to a crime. He claims the Equal Protection Clauses of the United States Constitution and Wisconsin Constitution were violated when the prosecutor used two of her peremptory challenges to strike from the jury panel the only two African-American potential jurors. Because we agree with the circuit court’s determination that the prosecutor did not engage in purposeful discrimination, we conclude there was no equal protection violation. We affirm.

Recommended for Publication

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WI Court of Appeals – District II

Case Name: Ozaukee County v. R.CJ.Y.

Case No.: 2019AP297

Officials: REILLY, P.J.

Focus: Probable Cause Hearing

On October 22, 2018, Ozaukee County filed a Statement of Emergency Detention by Law Enforcement Officer against R.CJ.Y.2 A probable cause hearing was scheduled for October 24, 2018. Pursuant to WIS. STAT. § 51.20(8)(bg), a settlement agreement was entered into in which R.CJ.Y. agreed to waive the probable cause hearing and agreed to a treatment plan for a ninety-day period. The court approved the settlement agreement.

On January 15, 2019, one week before expiration of the settlement agreement, the County filed a Statement of Noncompliance with Settlement Agreement per WIS. STAT. § 51.20(8)(bm) and asked the court to schedule a “final hearing.” The County did not request a probable cause hearing despite R.CJ.Y. being detained. At the final hearing, R.CJ.Y. moved to dismiss on the grounds that the court lacked competency as no probable cause hearing was held. The court ultimately granted the motion, released R.CJ.Y., and dismissed the County’s WIS. STAT. ch. 51 action. The County appeals.

We affirm. The language of the statute is clear. See State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. The parties entered into a ninety-day settlement agreement per WIS. STAT. § 51.20(8)(bg) in which R.CJ.Y. waived his right to have a probable cause hearing. When the County filed the Statement of Noncompliance with Settlement Agreement in January 2019, § 51.20(8)(bm) required the court to conduct a probable cause hearing if one had not been held prior to entry of the settlement agreement and the person is detained: “If the subject individual is detained under this paragraph, the court shall hold a probable cause hearing within 72 hours from the time that the person is taken into custody under [WIS. STAT. §] 51.15 for this paragraph.” Section 51.20(8)(bm) goes on to explain that if a probable cause hearing was held prior to the settlement agreement, then a probable cause hearing is not required at the time of the noncompliance and a final hearing is to be scheduled. The County did not request a probable cause hearing and one was not held prior to the final hearing, which violates the statute.

A court which fails to hold a probable cause hearing within seventy-two hours of detention loses competency to proceed. See Dodge Cty. v. Ryan E.M., 2002 WI App 71, ¶5, 252 Wis. 2d 490, 642 N.W.2d 592. As no probable cause hearing was held within seventy-two hours of the County’s filing of the Statement of Noncompliance with Settlement Agreement and as no probable cause hearing was held prior to the entry of the settlement agreement, the court properly found that it did not have competency at the final hearing and appropriately released R.CJ.Y. and dismissed the County’s WIS. STAT. ch. 51 action against R.CJ.Y. We affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Eric G. Koula

Case No.: 2017AP1995

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

Focus: Ineffective Assistance of Counsel

Eric Koula, pro se, appeals a circuit court order that denied Koula’s WIS. STAT. § 974.06 (2017-18)1 motion seeking relief from a judgment of conviction for two counts of first degree intentional homicide. Koula contends that his trial counsel were ineffective by failing to properly investigate and do the following: (1) file a Denny motion to implicate Koula’s brother-in-law, Patrick Cowell, in the murders; (2) present evidence challenging the State’s time-of-death evidence; (3) present evidence challenging the State’s physical evidence; (4) present fingerprint evidence; (5) present financial evidence to contradict the State’s theory of Koula’s motive; and (6) challenge actions and statements by the State that Koula asserts were dishonest and misleading. Koula also asserts that his postconviction counsel were ineffective by failing to pursue those claims of ineffective assistance of trial counsel in Koula’s direct postconviction motion. For the reasons set forth in this opinion, we conclude that the circuit court properly denied Koula’s motion without a hearing. We affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Maurice J. Holt

Case No.: 2018AP215-CR

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

Focus: Court Error – Abuse of Discretion

Maurice Holt appeals a judgment convicting him, following a jury trial, of armed robbery, substantial battery, battery, two counts of felony intimidation of a victim, and two counts of false imprisonment, each as a party to the crime. He also appeals an order denying his post-conviction motion.

Holt argues that the trial court erroneously exercised its discretion, and denied him his right to present a defense, when it rejected his request to admit evidence that he contends would have served as a basis to impeach Dale’s trial testimony and would have supported the defense theory that R.G. was the third assailant. More specifically, the court denied Holt’s request to be allowed to attempt to impeach Dale with two photographs showing two masked persons, possibly armed, purportedly taken several hours before the robbery. Holt argued that the photos would help him show that R.G. was one of the masked persons in the photos and, therefore, more likely the third assailant. We conclude that the trial court did not erroneously exercise its discretion in denying this request and that exclusion of the photographs did not deny Holt his right to present a defense.

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WI Court of Appeals – District IV

Case Name: Progressive Universal Insurance Company v. Marilyn E. Martin

Case No.: 2018AP1738

Officials: FITZPATRICK, J.

Focus: Court Error – Abuse of Discretion  

Marilyn Martin appeals an order of the Dane County Circuit Court denying her motion to reopen a default judgment in this small claims case. A default judgment was entered against Martin in favor of Progressive Universal Insurance Company (Progressive) after Martin failed to appear at the trial. Martin’s motion to reopen the default judgment alleged that she did not receive notice of the trial date and time. Because I conclude that the circuit court properly exercised its discretion based on its finding that Martin received notice, the order denying Martin’s motion to reopen the default judgment is affirmed.

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