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

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Keith Horist, et al. v. Sudler and Company D/B/A

Case No.: 18-2150

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

Focus: Class Action – Condominium Act Violation

The Illinois Condominium Property Act requires an elaborate set of disclosures when a condominium unit is resold. The owner must give the prospective buyer a copy of the condominium declaration and bylaws, the condominium association’s rules, and an array of other documents bearing on the current financial status of the property. 765 ILL. COMP. STAT. 605/22.1(a). The association’s board must furnish the required documents within 30 days of the owner’s written request, id. § 605/22.1(b), and it may charge a reasonable fee for doing so, id. § 605/22.1(c). Another provision of the Act allows the association to retain a person or firm to manage the condominium property. Id. § 605/18(a)(5).

This lawsuit is a proposed class action against a Chicago property-management firm and its third-party vendor, an online service that assembles a downloadable electronic version of the required disclosure documents, giving unit owners quick and easy access to the material needed to complete a resale transaction. The vendor charges a fee for this service. The plaintiffs are condominium owners who purchased their disclosure documents from the online vendor and now complain that the fee is excessive in violation of the Condominium Act. They also bring claims under the Illinois consumer-fraud statute and three common-law theories: breach of fiduciary duty, unjust enrichment, and civil conspiracy. The district court dismissed the suit.

We affirm. The relevant provision of the Condominium Act does not provide a private right of action, and we see no basis in Illinois law to imply one for condominium owners. The statutory consumer-fraud claim is likewise defective; the Illinois courts have held that charging too much for goods or services is not, standing alone, an unfair practice under the statute. The common-law claims also fail. The complaint does not plead an actionable breach of fiduciary duty, and unjust enrichment and conspiracy are not independent causes of action under Illinois law.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Commodity Futures Trading Commission v. Kraft Foods, Inc., et al.

Case No.: 19-2769

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

Focus: Mandamus Relief

In 2015 the Commodity Futures Trading Commission filed a civil action against Kraft Foods Group and Mondelēz Global. It was settled in August 2019, and the parties’ bargain, which the judge entered as a consent decree, includes this provision: Neither party shall make any public statement about this case other than to refer to the terms of this settlement agreement or public documents filed in this case, except any party may take any lawful position in any legal proceedings, testimony or by court order. Shortly after the district court entered its order, the Commission issued a press release announcing the suit’s resolution. Two Commissioners (Dan Berkovib and Rostin Behnam) filed statements explaining why they voted in favor of accepting this settlement.

Kraft and Mondelēz asked the district judge to hold the Commission and Commissioners in contempt of court for issuing the press release and concurring statements. The district judge set the motion for a hearing and directed Chairman Heath Tarbert, Commissioners Berkovib and Behnam, the Commission’s Director of Enforcement, and several of the Commission’s other employees to appear in court and testify under oath. The judge stated that he would administer Miranda warnings to these witnesses in preparation for a finding of criminal contempt and would demand that the witnesses explain the thinking behind the press release and the separate statements. Chairman Tarbert and the Commissioners protested. After a motion asking the district court to lift the demand for their presence and the threat of criminal sanctions went unaddressed for approximately two weeks, and the date scheduled for the hearing approached, the Commission filed a petition for a writ of mandamus. A motions panel issued a stay pending further order of this court.

We also ordered all of the papers to be placed in the public record. The district judge had directed the parties not to say anything in public about the upcoming hearing and to keep all of their legal filings secret, an order that is inconsistent with the law of this circuit. See, e.g., Union Oil Co. v. Leavell, 220 F.3d 562, 567–68 (7th Cir. 2000); Herrnreiter v. Chicago Housing Authority, 281 F.3d 634, 636–37 (7th Cir. 2002). Those two decisions hold that a confidentiality clause in the litigants’ agreement does not authorize secret adjudication.

We ordered Kraft and Mondelēz to respond to the petition and invited the district judge to do so. See Fed. R. App. P. 21(b)(1), (4). The district judge’s response states, among other things, that he no longer contemplates the possibility of criminal contempt, so that aspect of the controversy has dropped out. Everything we say from now on concerns civil contempt only. Chairman Tarbert and Commissioners Berkovib and Behnam have moved for leave to intervene. We grant that motion. Although the Commission is representing their interests adequately for the present, the threat of being personally penalized for contempt of court entitles them to be litigants in their own right, so that they may take such steps as they deem wise to protect their personal interests. Mandamus is a drastic remedy, reserved for urgent needs, but, for all that, it remains available to a litigant who can establish a clear right to relief and lacks any other way to protect his or her rights. See, e.g., Cheney v. United States District Court, 542 U.S. 367 (2004); Ex parte Fahey, 332 U.S. 258 (1947). The district court’s order directing the Chairman and two members of the Commission, plus members of the staff, to appear for questioning in open court cannot be reviewed on appeal from a final decision. The time taken away from their official duties will be lost forever.

Because the propriety of the Commission’s official deeds depends on those deeds, plus the administrative record (if any), there is neither need nor justification for testimony by the Chairman, any Commissioners, or any members of the agency’s staff. We issue a writ of mandamus and direct the district court to withdraw its demand that these persons appear in court for questioning. We also direct the district court to desist from any effort to hold the Chairman, Commissioners, and staff members personally in contempt of court, or otherwise to look behind the Commission’s public statements and the administrative record.

The argument for mandamus on this subject is weak. If the district judge ultimately concludes that the Commission is indeed in contempt, its arguments can be vindicated by an appeal in the regular course. We therefore deny the request for mandamus on this issue. Likewise we deny the Commission’s request that we transfer the district court’s proceedings to a different judge. The judge who entered the consent decree is in the best position to decide, as an initial matter, whether its provisions have been violated. The final decision will be subject to plenary review. The motion to intervene is granted. The petition for mandamus is granted to the extent we indicated above and otherwise denied.

Denied in part. Granted in in part.

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7^th Circuit Court of Appeals

Case Name: Tyquan Stewart v. Parkview Hospital, et al.

Case No.: 19-1747

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

Focus: Warrantless Search – Blood Test

Tyquan Stewart sustained serious injuries upon crashing his car while driving under the influence. An emergency room doctor treated Stewart and in doing so ordered a blood draw, which confirmed that he had been drinking. The police requested and received the blood‐ test results from the hospital’s medical staff. Stewart later sued both officers for violating the Fourth Amendment by obtaining his test results without a warrant and the hospital’s medical staff for violating the Health Insurance Portability and Accountability Act by disclosing the results. The district court entered summary judgment for the defendants. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Anthony Shockey

Case No.: 19-1308

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

Focus: Sentencing – Supervised Release

Anthony Shockey appeals from the district court’s order revoking his supervised release and imposing a 15-month prison sentence. The district court found that Shockey not only used methamphetamine but also possessed it, a Grade B violation of one of his supervised release conditions. Shockey challenges this classification. Because the district court reasonably could infer possession from use, we affirm the judgment.

Affirmed

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7^th Circuit Court of Appeals

Case Name: James B. Hanson v. United States of America

Case No.: 18-1149

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

Focus: Sentencing Guidelines

Following a six-year investigation into a methamphetamine operation, James Hanson was indicted on May 5, 2009, with conspiracy to manufacture, distribute, and possess with intent to distribute methamphetamine in excess of 500 grams. The Government established Hanson’s three prior drug offenses and Kentucky felony third-degree residential burglary conviction. On December 10, 2009, Hanson pleaded guilty pursuant to a plea agreement. Per the agreement, the government listed only one prior felony drug conviction under 21 U.S.C. § 851, instead of all three potentially qualifying convictions, and relied in part on Hanson’s prior burglary conviction for a lesser recommended sentencing range under the Guidelines.

In the Presentence Investigation Report (“PSR”), the Probation Officer calculated Hanson’s total offense level as 34, with a criminal history of VI, for a Sentencing Guidelines range of 262 to 327 months. U.S.S.G. § 4B1.1(c)(3). After conducting a sentencing hearing where the district court heard from both parties, the district court adopted the PSR, sentencing Hanson to 262 months in prison followed by ten years of supervised release. On appeal, Hanson challenges the district court’s denial of his collateral challenge to his sentence under 28 U.S.C. § 2255. We conclude that the district court did not commit any reversible errors and affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Western Illinois Service Coordination, et al. v. Illinois Department of Human Services, et al.

Case No.: 19-2211

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

Focus: Preliminary Injunction – Illinois Medicaid Program – State Contracts

Circumstances often change as time passes. And changed circumstances can have consequences in litigation. This appeal presents a good example. Our review is limited to the denial of a preliminary injunction, which sought to prevent an event—the shift in the award of state contracts for the provision of case management services as part of Illinois’s Medicaid program. That transition occurred on July 1, 2019. During oral argument, the plaintiffs— parties to the former contracts—acknowledged that it would be too disruptive to rewind the clock by somehow attempting to reinstate those contracts. So, too, did they confirm that they now seek different forms of relief. In these circumstances, the present appeal is moot, so we dismiss it and remand for further proceedings.

Dismissed and remanded

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7^th Circuit Court of Appeals

Case Name: United States of America v. Michael P. Haldorson

Case No.: 18-2279

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

Focus: Probable Cause – Warrantless Search

Michael Haldorson is a self-proclaimed fireworks enthusiast. But he was also a drug dealer. Haldorson was arrested on his way to a second controlled buy and, along with drugs, officers found three pipe bombs in his car. He was charged with several counts related to drugs, explosives, and a firearm. Before trial, Haldorson filed several motions to suppress evidence, challenging his arrest, the admissibility of his post-arrest statements, and the searches of his car, apartment bedroom, and rented storage locker. All were denied.

Haldorson proceeded to trial and a jury convicted him on four counts of the seven-count indictment: Count One for distribution of cocaine, 21 U.S.C. § 841(a)(1); Count Two for possession with intent to distribute cocaine, 21 U.S.C.§ 841(a)(1); Count Three for possession of MDMA, or ecstasy, and cocaine, 21 U.S.C. § 844(a); and Count Four for possession of an explosive during the commission of a felony, 21 U.S.C. § 844(h)(2). The jury acquitted him on two additional charges and the government dismissed another count at trial. The district court later vacated Count Three because it was a lesser included offense of Count Two. The district court sentenced Haldorson to a term of imprisonment of 192 months.

On appeal Haldorson raises three issues. First, Haldorson argues that the district court erred in denying the motions to suppress the evidence seized from his car and his apartment because the officers lacked probable cause to stop and arrest him and there were no exigent circumstances to justify the warrantless search of his apartment bedroom. Second, he asserts that the jury instructions constructively amended Count Four of the indictment, unlawfully carrying an explosive, in violation of the Fifth Amendment by permitting the jury to convict him on a broader basis than the indictment charged. Third, and finally, Haldorson contends that he did not receive a fair trial due to a multitude of alleged mistakes and errors during the investigation and asks us to vacate his convictions.

We conclude that probable cause supported the arrest, exigent circumstances existed for the search of the bedroom, and Haldorson had a full and fair opportunity to defend himself at trial. We, therefore, affirm the district court’s judgment in all respects.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Electrical Construction Industry Prefunding Credit Reimbursement Program, et al. v. Veterans Electric, LLC,

Case No.: 19-1051; 18-3703

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

Focus: ERISA – Collective Bargaining Agreement Violation

The International Brotherhood of Electrical Workers, AFL-CIO Local 494 and the Electrical Contractors Association Milwaukee Chapter, N.E.C.A., Inc. (“NECA”), entered into a collective bargaining agreement (“CBA”) providing health, welfare, and pension benefits for union workers. The Electrical Construction Industry Prefunding Credit Reimbursement Program, a/k/a Electrical Construction Industry Health & Welfare Plan, Electrical Construction Industry Annuity Plan, Electrical Construction Industry Pension Plan, Milwaukee Electrical Joint Apprenticeship & Training Trust Fund, and Electrical Construction Industry Vacation – Holiday Plan (the “Funds”) operate as trusts for these benefits. Veterans Electric, LLC (“Veterans”) participated in NECA, assented to the CBA, and contributed to the Funds for its union employees. The CBA makes multiple references to the Funds and details an audit policy.

The Employee Retirement Income Security Act of 1974 (“ERISA”) governs benefit plans between labor unions and multiemployer associations. As association members, employers agree to be bound by the CBA. Unions set up trust agreements, which set out the terms for benefit plans for union employees. Trustees may demand and examine pertinent employer records to effectively administer the trust. Signatory employers self-report benefit payments owed under the CBA.

On May 4, 2017, the Funds attempted to audit Veterans’ payroll records and Veterans only provided records for union employees. This payroll information accounted for about half of the total reported wages. Due to the discrepancy, the Funds requested payroll information for non-union employees. Veterans refused, contending that the records were outside the scope of a proper audit under the CBA. The Funds were unable to complete the audit and initiated litigation. During discovery, Veterans provided the additional payroll information.

The district court granted summary judgment in favor of Veterans, limiting the scope of the trustees’ audit authority. We reverse.

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: John W. Kimbrough v. Ron Neal

Case No.: 18-3145; 18-3153

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

Focus: Habeas Corpus

John Kimbrough was convicted in Indiana state court of molesting two young girls on multiple occasions. The trial court sentenced Kimbrough to 80 years in prison, which was ultimately affirmed on appeal. Kimbrough sought post-conviction relief based on ineffective assistance of appellate counsel. Specifically, Kimbrough cited his attorney’s failure to object to his 80-year sentence under Indiana Appellate Rule 7(B), which allows an appellate court to revise an inappropriate sentence.

The Indiana Court of Appeals rejected Kimbrough’s ineffective assistance claim, concluding as a matter of state law that he was not entitled to relief. The district court disagreed and granted Kimbrough’s petition for a writ of habeas corpus. Because a federal court considering a habeas petition under 28 U.S.C. § 2254(d) cannot disagree with a state court’s resolution of a state law issue, we reverse.

Reversed

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7^th Circuit Court of Appeals

Case Name: Peter Daza v. State of Indiana, et al.

Case No.: 18-3102

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

Focus: Wrongful Termination – 1^st Amendment Violation

After the Indiana Department of Transportation (“INDOT”) fired Peter Daza from his position as a geologist, Daza filed various claims against the State of Indiana and INDOT employees, alleging that his firing was unlawful. The district court granted summary judgment to the defendants on all Daza’s claims. Daza appeals only the grant of summary judgment on his claims under 42 U.S.C. § 1983. Those claims alleged that the defendants violated his First Amendment rights by discriminating and retaliating against him for his political activities and affiliation. Because Daza has failed to show that any of his alleged protected activities or political affiliation motivated his firing, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. James Atwood

Case No.: 18-2113

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

Focus: Abuse of Discretion – Failure to Recuse

Judge Colin S. Bruce sentenced James Atwood to 210 months’ imprisonment for federal drug crimes. While Atwood’s case was pending, Judge Bruce improperly communicated ex parte with the prosecuting U.S. Attorney’s Office about other cases. The federal recusal statute requires a judge to recuse himself from any proceeding in which his impartiality may reasonably be questioned. The government concedes that the disclosure of Judge Bruce’s ex parte correspondence invited doubt about his impartiality in proceedings involving the Office. Because of the judge’s broad discretion in sentencing, we conclude that Judge Bruce’s failure to recuse himself was not harmless error. We vacate Atwood’s sentence and remand his case for resentencing by a different judge.

Vacated and remanded

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7^th Circuit Court of Appeals

Case Name: Philip G. Groves v. United States of America

Case No.: 17-2937

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

Focus: Interlocutory Appeal – Jurisdiction

When a district court certifies an order for review before final judgment, parties have only ten days to petition us to hear the interlocutory appeal. Decades ago, we provided a way to circumvent that deadline: district courts could reenter or recertify their orders, restarting the clock, whenever doing so would further the purpose of the interlocutory review statute. But more recent Supreme Court cases call that workaround into question. The Court has emphasized—as recently as a few months ago—that federal courts have no authority to read equitable exceptions into fixed filing deadlines. In light of the Court’s precedent, we conclude that we were wrong to hold that district courts can extend the ten‐day window by simply reentering or recertifying their orders. We therefore dismiss this appeal for lack of jurisdiction.

Dismissed

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Domeniko E. Martin

Case No.: 2018AP1831-CR

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

Focus: Warrantless Search – Suppression of Evidence

Domeniko E. Martin appeals a judgment entered after he pled guilty to possession with intent to deliver heroin.  He claims that the circuit court wrongly denied his suppression motion. Martin now appeals, contending that the heroin found under the bedroom window should be suppressed because the protective sweep was unlawful, and the balance of the evidence should be suppressed because the allegedly unlawful sweep tainted Berg’s subsequent consent to search the apartment. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Jeff Jeter

Case No.: 2018AP2209-CR

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

Focus: Ineffective Assistance of Counsel

Jeff Jeter appeals from a judgment of conviction for one count of conspiracy to knowingly deliver heroin (more than fifty grams), contrary to WIS. STAT. § 961.41(1)(d)4. and (1x) (2015-16). Jeter also appeals from an order denying his postconviction motion, which alleged ineffective assistance of two successive attorneys with respect to Jeter’s potential testimony at the trial of his co-actor. Jeter argues that he is entitled to resentencing because of that alleged ineffective assistance. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin ex rel. Erich L. Vlach v. Brian Hayes

Case No.: 2019AP70

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

Focus: Court Error – Abuse of Discretion

Erich L. Vlach appeals an order of the trial court which upheld a decision by the Division of Hearings and Appeals (DHA) revoking Vlach’s probation. DHA found there to be credible evidence supporting each of the alleged violations of the terms of Vlach’s probation, and that there were no appropriate alternatives to revocation. Vlach argues that DHA’s decision was arbitrary and capricious and represented its will rather than its judgment, and that it failed to consider viable alternatives to revocation. Upon certiorari review, the trial court upheld DHA’s determination. We affirm.

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WI Court of Appeals – District III

Case Name: Brian L. Sinkler, et al. v. American Family Mutual Insurance Company, et al.

Case No.: 2019AP88

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

Focus: Abuse of Discretion – Attorney Fees

EMCASCO Insurance Company (“EMC”) appeals an order distributing the settlement proceeds in a third-party liability action filed under WIS. STAT. § 102.29 (2017-18). EMC argues the circuit court erroneously exercised its discretion by failing to distribute any portion of the reasonable cost of collection to EMC’s attorneys, the Ron Harmeyer Law Office LLC (“the Harmeyer firm”). In addition, EMC urges this court to adopt a per se rule that the attorney fees awarded as a reasonable cost of collection in a third-party liability action must be divided between the injured employee’s attorneys and the worker’s compensation carrier’s attorneys on a pro rata basis—that is, in proportion to their clients’ respective recoveries.
We conclude the circuit court properly applied the three-part framework set forth in Anderson v. MSI Preferred Insurance Co., 2005 WI 62, 281 Wis. 2d 66, 697 N.W.2d 73, when determining and apportioning the reasonable cost of collection in this case. Under the circumstances, the court did not erroneously exercise its discretion by refusing to distribute any portion of the reasonable cost of collection to the Harmeyer firm. We decline EMC’s invitation to adopt a per se rule requiring the pro rata distribution of the reasonable cost of collection. Accordingly, we affirm the order distributing the settlement proceeds.

Recommended for Publication

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. T.S.W.

Case No.: 2019AP450; 2019AP451

Officials: DUGAN, J.

Focus: Termination of Parental Rights

T.S.W. appeals the orders terminating her parental rights to two of her children, J.L.C. and J.C., and the orders denying her postdisposition motion for a new trial.2 T.S.W. argues that the trial court erred because it did not hold a hearing regarding J.C.’s change of physical placement prior to the jury trial on the grounds phase3 of the petition for the termination of her parental rights (TPR) to both children and because it denied her postdisposition motion without a hearing.4 She also argues that trial counsel was ineffective in (1) failing to object to proceeding with jury trial on the grounds phase of the TPR petition before the trial court conducted a hearing on the motion to change J.C.’s physical placement and (2) failing to request an adjournment of the jury trial until T.S.W. was back on her prescribed mental health medication. We disagree and affirm the orders.

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WI Court of Appeals – District II

Case Name: Perfection, LLC, et al. v. Edward Cole, et al.

Case No.: 2017AP2421

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

Focus: Judgment – Costs and Fees

Edward Cole appeals pro se from a judgment, which held him liable to Perfection, LLC. He seeks relief from the judgment and reversal of an earlier ruling that dismissed his cross-complaint against Liberty Mutual Group Inc. We affirm. In addition, we grant Perfection’s motion to find this appeal frivolous and remand to the circuit court to assess reasonable attorney fees against Cole.

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WI Court of Appeals – District II

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

Case No.: 2018AP733

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

Focus: Ineffective Assistance of Counsel

Matthew Dennis appeals pro se from circuit court orders denying his WIS. STAT. § 974.06 (2017-18) motion alleging ineffective assistance of postconviction counsel and his subsequent motion to reconsider. We agree with the circuit court that Dennis’s motion did not allege sufficient facts regarding postconviction counsel’s performance to warrant an evidentiary hearing. Because the circuit court did not misuse its discretion in denying Dennis’s § 974.06 motion without a hearing, we affirm.

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WI Court of Appeals – District II

Case Name: Polk Properties, LLC, et al. v. Grota Appraisals, LLC, et al.

Case No.: 2018AP2296-FT

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

Focus: Claim Preclusion

Polk Properties, LLC and Donald Thoma (Polk) appeal dismissal of its lawsuit against Michael Grota and Grota Appraisals, LLC, (Grota) on summary judgment after the circuit court determined claim preclusion barred its claims. We affirm.

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WI Court of Appeals – District IV

Case Name: Donald Isherwood, et al. v. Portage County Drainage District

Case No.: 2018AP1271

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

Focus: Certiorari Review – Habitat Project

Donald Isherwood, Lynn Isherwood, and Isherwood Family Farms, LLC (“the Isherwoods”) filed two petitions for certiorari review challenging actions by the Portage County Drainage District (“the District”). These actions involve materials that the Isherwoods placed in a lateral drainage ditch (“the lateral”) that runs through the Isherwoods’ property. The Isherwoods take the position that the materials they placed in the lateral created an enhanced habitat for trout and improved the flow of water in the lateral. In their petitions, the Isherwoods contend that the District improperly issued an order announcing a plan “to remove all obstructions in the Isherwood lateral,” and later improperly denied the Isherwoods’ application for after-the-fact approval of the habitat project. In this appeal of the consolidated certiorari actions, the District challenges various rulings of the circuit court in favor of the Isherwoods. We affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Ross Harris, Jr.,

Case No.: 2018AP1667-CR

Officials: KLOPPENBURG, J.

Focus: Sufficiency of Evidence – Testimony

A jury found Ross Harris, Jr., not guilty of battery and guilty of disorderly conduct arising out of a physical altercation between Harris and A.D. in a hospital elevator. Harris argues that the circuit court erroneously denied his motions for a mistrial based on three instances of what Harris asserted was improper testimony by two of the State’s witnesses. I conclude that Harris fails to show that the court erroneously exercised its discretion and, therefore, I affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Jeffery Scott Wiganowsky

Case No.: 2019AP884-CR

Officials: BLANCHARD, J.

Focus: OWI – Blood Alcohol Content Violation

Under Wisconsin’s penalty structure for operating while intoxicated (OWI) offenses, the level of offense severity is determined in part by “the total number of [driving privilege] suspensions, revocations, and other convictions counted under [WIS. STAT.] § 343.307(1).” WIS. STAT. § 346.65(2)(am)2. (emphasis added). Pertinent here, one paragraph in § 343.307(1) provides that “convictions” for counting purposes include those imposed under the law of another state that prohibits “an excess or specified range of alcohol concentration” in the blood of an operator. Sec. 343.307(1)(d).

Here, a Wisconsin prosecutor charged Wiganowsky with a second OWI offense based on the allegation that a Wyoming “Blood Alcohol Content violation”—not a formal conviction, but instead the result of a Wyoming administrative process—counts as a first OWI “conviction” under the Wisconsin OWI counting law. I will refer to this as “the Wyoming BAC violation.” Wiganowsky argued successfully in the circuit court that the Wyoming BAC violation should not count as a prior “conviction” under WIS. STAT. § 343.307(1)(d) and that, therefore, this case involves only a first offense.

Following the reasoning of opinions of our supreme court and the court of appeals, I conclude that the State has carried its burden of establishing that the Wyoming BAC violation is a valid basis for imposition of the enhanced penalty, and accordingly reverse. See State v. Carter, 2010 WI 132, ¶¶38, 43, 59, 330 Wis. 2d 1, 794 N.W.2d 213 (interpreting “convictions” counted under WIS. STAT. § 343.307(1)(d) to include administrative suspensions under Illinois law); State v. List, 2004 WI App 230, ¶¶2-3, 7, 10-11, 277 Wis. 2d 836, 691 N.W.2d 366 (interpreting “convictions” counted under § 343.307(1)(d) to include an Illinois court’s placement of a person charged with OWI on court supervision).

As pertinent to the issues on appeal, the State charged Wiganowsky with second-offense OWI based on an alleged drunk driving incident in Jefferson County. The amended complaint alleged that this was a second offense due to the Wyoming BAC violation on Wiganowsky’s driving record. More specifically, the State took the position that Wyoming records establish that the Wyoming BAC violation is a “conviction” for purposes of counting under WIS. STAT. §§ 343.307(1)(d) and 340.01(9r).

I reject this argument on the ground that the court in Haglund limits its analysis of the Wyoming statute to the acquittal-based-on-factual-innocence scenario. There is no starting point for Wiganowsky’s argument, given this limited holding in Haglund, because it explicitly rests on the determination that, when the trial court “accepted” Haglund’s defense that she had not driven drunk, this stood as a valid finding that she was not in fact intoxicated at the time at issue in the suspension, and therefore “there is no need to” continue with the suspension. See Haglund, 982 P.2d at 703. In sharp contrast, Wiganowsky was deferred, not “acquitted,” on the Wyoming criminal drunk driving charge, nor was there any finding by any court or agency that he did not have the alleged excess blood alcohol concentration.

Wiganowsky’s second argument is that the allegations of the amended complaint fail to state or give rise to reasonable inferences sufficient to support the further allegation that the Wyoming BAC violation counts under Wisconsin OWI law. This argument may have two, alternative parts: (1) the amended complaint is too vague, or is incomplete, in referencing the Wyoming BAC violation; or (2) even if it makes sufficiently clear, complete references to the Wyoming BAC violation, it is insufficient to explain why the Wyoming BAC law counts under Wisconsin law. Judgment reversed and cause remanded.

WI Supreme Court Digests

WI Supreme Court

Case Name: Office of Lawyer Regulation v. Courtney Kathleen Kelbel

Case No.: 2019 WI 93

Focus: Attorney Disciplinary Hearing

We review Referee James W. Mohr, Jr.’s, recommendation that the court declare Attorney Courtney Kathleen Kelbel in default and suspend her license to practice law in Wisconsin for a period of six months for professional misconduct in connection with her representation of five clients. The referee also recommended that Attorney Kelbel make restitution to the Wisconsin Lawyers’ Fund for Client Protection (the Fund) and that she pay the full costs of this proceeding, which are $1,037.25 as of July 24, 2019.ince no appeal has been filed, we review the referee’s report pursuant to Supreme Court Rule (SCR) 22.17(2). After review of the matter, we agree with the referee that, based on Attorney Kelbel’s failure to answer the Office of Lawyer Regulation’s (OLR) complaint, the OLR is entitled to a default judgment. We further agree with the referee that a six month suspension of Attorney Kelbel’s license is an appropriate sanction for her professional misconduct. Finally, we agree that Attorney Kelbel should be required to make restitution to the Fund and that she should be assessed the full costs of this proceeding.

License Suspended

Concur:

Dissent:

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WI Supreme Court

Case Name: Office of Lawyer of Regulation v. Nicholas C. Kefalos

Case No.: 2019 WI 94

Focus: Attorney Disciplinary Hearing – Reciprocal Discipline

This is a reciprocal discipline matter. On May 14, 2019, the Office of Lawyer Regulation (OLR) filed a complaint and motion pursuant to Supreme Court Rule (SCR) 22.22, requesting this court suspend Attorney Nicholas C. Kefalos’ license to practice law in Wisconsin for a period of six months, as discipline reciprocal to that imposed by the Supreme Court of Illinois. Upon review, we agree that it is appropriate to impose a six-month suspension, identical to that imposed by the Supreme Court of Illinois.

License Suspended

Concur:

Dissent:

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WI Supreme Court

Case Name: Office of Lawyer Regulation v. Jeffrey P. White

Case No.: 2019 WI 95

Focus: Attorney Disciplinary Hearing – Reciprocal Discipline

This is a reciprocal discipline matter. On August 7, 2019, the Office of Lawyer Regulation (OLR) filed a two-count complaint against Attorney Jeffrey P. White. Count one alleged that by virtue of Attorney White’s recent nine-month license suspension and public reprimand by the Maine Supreme Judicial Court, Attorney White should be subject to reciprocal discipline in Wisconsin pursuant to Supreme Court Rule (SCR) 22.22. Count two alleged that by failing to notify the OLR of his discipline in Maine within 20 days of its effective date, Attorney White violated SCR 22.22(1). After service of the complaint, the parties stipulated to the imposition of a reciprocal nine-month suspension. We approve the stipulation, and we therefore order a nine-month suspension of Attorney White’s Wisconsin law license.

License Suspended

Concur:

Dissent:

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