Please ensure Javascript is enabled for purposes of website accessibility

Weekly Case Digests – January 13, 2019 – January 17, 2020

By: WISCONSIN LAW JOURNAL STAFF//January 17, 2020//

Weekly Case Digests – January 13, 2019 – January 17, 2020

By: WISCONSIN LAW JOURNAL STAFF//January 17, 2020//

Listen to this article

7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Dan Proft, et al. v. Kwame Raoul, et al.

Case No.: 18-3475

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

Focus: 1st Amendment Violation

A provision of the Illinois Election Code limits how much money entities can contribute to political campaigns. But in some races, Illinois lifts these limits, allowing certain entities to make unlimited campaign contributions and coordinate unlimited spending with candidates. Illinois Liberty PAC, an independent expenditure committee, is not one of these entities; indeed, Illinois bans all independent expenditure committees from making campaign contributions and from coordinating spending with candidates.

Plaintiffs Dan Proft and the Illinois Liberty PAC do not attack the entire contribution and coordination ban enforced against independent expenditure committees. Rather, they seek to overturn the ban only when unlimited contributions and unlimited coordinated expenditures are allowed for others. Otherwise, plaintiffs claim, Illinois’s ban violates the First Amendment rights of free speech and free association and the Fourteenth Amendment right of equal protection.

Whether a constitutional violation exists here depends on if the contribution and coordination ban is closely drawn to prevent corruption or the appearance of corruption. Because striking down the ban would increase the risk of corruption and circumvent other election code sections that work to prevent political corruption, we affirm the district court’s dismissal of this suit and denial of plaintiffs’ motion for a preliminary injunction.

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: Timothy Johnson v. Michael Rogers

Case No.: 19-1366

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

Focus: Qualified Immunity

In October 2014 Timothy Johnson showed up drunk for an appointment at a rehab clinic. After he threatened a therapist and the clinic’s security guard, the clinic called the police. Two officers arrested and handcuffed Johnson. When he told them that he would run away, they sat him on the pavement next to a patrol car. What happened next led to this suit under 42 U.S.C. §1983. The events we describe were captured on video. The video lacks a sound track, but the officers’ descriptions about what Johnson said are uncontested, because he was too inebriated to remember much about the encounter.

Despite being cuffed behind his back, Johnson managed to stand. The officers walked him backward about 10 feet and sat him down on a patch of grass. They returned to their cars to do some paperwork. In about a minute Johnson got to his knees and managed to stand again. He started to move away, shouting threats and racial taunts. Officer Rogers returned and pulled Johnson backward by his cuffed hands. When that did not return him to the ground, Rogers tried a different means. Johnson fell and suffered a compound fracture of one leg. He contends that this resulted from a kick designed to punish him rather than to return him to a sitting position; Rogers contends that he used a leg sweep (in other words, tripped Johnson to force him backward) rather than a kick. The grainy video does not enable a viewer to distinguish these possibilities with confidence.

Johnson contends that Rogers violated the Fourth Amendment (applied to state actors via the Fourteenth) by using unreasonable force during the encounter. See Graham v. Connor, 490 U.S. 386 (1989). The district court granted summary judgment for the officers, giving two reasons. 2019 U.S. Dist. LEXIS 6961 (S.D. Ind. Jan. 15, 2019). First, the judge concluded that Rogers is entitled to qualified immunity, because the procedure that led to Johnson’s broken leg did not violate any of his clearly established rights. Second, the judge wrote that, because Johnson pleaded guilty in state court to resisting arrest, Heck v. Humphrey, 512 U.S. 477 (1994), bars any claim under the Fourth Amendment while the judgment of conviction stands. The district court also ruled in defendants’ favor on Johnson’s federal claim against the City of Indianapolis and its Chief of Police, and his state law claims against all three defendants. Those additional claims have been abandoned on appeal, and we have amended the caption accordingly.

What resolves this appeal in Rogers’s favor is this: Johnson, who had told the officers that he wanted to run away, was not under control when Rogers tried to use his knee to unbalance Johnson, who remained on his feet until Rogers took a further step. If that further step is best understood as a kick, it must also be understood as an attempt to regain control. That such an attempt causes injury, perhaps because poorly executed, does not lead to liability.

Nor does the possibility that Rogers had two things in mind: regaining control and punishing Johnson for abusive language. Graham holds that the excessive-force inquiry is objective. If the force used was objectively allowable, the officer’s state of mind can’t make it unconstitutional. Lester v. Chicago, 830 F.2d 706, 712 (7th Cir. 1987). Taking the events as the video depicts them, the district court properly found that Rogers is entitled to qualified immunity.

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: University of Chicago v. National Labor Relations Board, et al.

Case No.: 18-3659; 19-1146

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

Focus: Abuse of Discretion – Due Process Violation

When a group of employees wants to collectively bargain with their employer, but the employer believes the group is ineligible for collective bargaining under the National Labor Relations Act, the two parties may address the dispute in a hearing before the National Labor Relations Board. At the hearing, a party may present evidence only if that evidence would be enough to sustain the party’s position. If the Board determines the party’s proposed evidence would not sustain its position, then the Board must refuse to accept the evidence.

Here, a group of students who worked part time for the University of Chicago Libraries wanted to collectively bargain with their university employer. The University believed the student group was ineligible for collective bargaining under the Act, and the University wanted to introduce evidence to support this argument at a hearing before the Board. The Board determined that the University’s proposed evidence would not sustain the University’s position that the students were ineligible for collective bargaining. So the Board did not admit the University’s evidence. Challenging that decision, the University petitioned our court for judicial review. The Board cross-applied for enforcement of its order finding the University should have bargained with its student employees.

We conclude that the Board’s refusal to admit the University’s evidence was not an abuse of discretion and did not violate the University’s due process rights. We deny the University’s petition and grant the Board’s cross-application.

Petition denied. Cross-application granted.

Full Text

7th Circuit Court of Appeals

Case Name: Christine Dancel v. Groupon, Inc.,

Case No.: 19-1831

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

Focus: Abuse of Discretion – Class Certification

Is a person’s username a part of her identity? That is a complex question, but one that Christine Dancel proposes can be resolved categorically for all usernames and all people. The district court thought otherwise and declined to certify a class because it would have to be decided username-by-username whether each one is an aspect of a given class member’s identity, at least as that word is defined by the Illinois Right of Publicity Act (IRPA), 765 ILCS 1075/5. Dancel contends this rejection of her theory was an improper decision on the merits of her and the class’s claims, and the court therefore abused its discretion at the class-certification stage. We see no such mistake in the district court’s reasoning and affirm the order denying certification.

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: Henry Horia v. Nationwide Credit & Collection, Inc.,

Case No.: 19-1559

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

Focus: FDCPA Violation

Nationwide Credit sent Henry Horia a letter seeking to collect a debt owed to Gottlieb Memorial Hospital. By return mail, Horia disputed the validity of this claim. The Fair Debt Collection Practices Act requires a debt collector such as Nationwide Credit that notifies a credit agency, such as Experian, about the debt to reveal whether the claim is disputed. 15 U.S.C. §1692e(8). Horia asserts in this suit that Nationwide Credit notified Experian about the debt but not about the dispute, injuring his credit rating and causing him mental distress.

A defendant who persuades a court that a sequential suit was brought to harass not only avoids an award of attorneys’ fees but also becomes eligible to collect its own attorneys’ fees from the debtor. 15 U.S.C. §1692k(a)(3). The statute thus provides debt collectors with tools to discourage abusive litigation. Horia may have difficulty showing that he suffered a marginal injury from Nationwide Credit’s second failure to notify Experian that a debt has been disputed. But he is entitled to try.

Reversed and remanded

Full Text

WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Clyde Tally

Case No.: 2016AP286-CR

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

Focus: Court Error – Plea Withdrawal

Clyde Tally appeals from a judgment of conviction for one count of first-degree reckless homicide and one count of first-degree recklessly endangering safety. See WIS. STAT. §§ 940.02(1) and 941.30(1) (2009- 10). On appeal, Tally presents two primary arguments. First, he argues that the trial court erroneously denied his motion for postconviction discovery. Second, he argues that the trial court erroneously denied his motion for plea withdrawal without granting him an evidentiary hearing. We consider each issue in turn. He also challenges the denial of his postconviction motions. We affirm.

Full Text

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Thomas D. Kulhanek

Case No.: 2018AP1135-CR

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

Focus: Court Error – Abuse of Discretion

Thomas Kulhanek appeals from a judgment of conviction for exposing genitals, pubic area, or intimate parts to a child. Kulhanek argues the circuit court erroneously exercised its discretion when performing in camera reviews of confidential State agency reports and records containing prior allegations of sexual assault by the victim. We affirm.

Full Text

WI Court of Appeals – District III

Case Name: State of Wisconsin ex rel. Bryan W. Massman

Case No.: 2018AP1621

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

Focus: Collective Bargaining Agreement – Just Cause Protection

Bryan Massman and Ryan Most appeal a judgment dismissing their claims against the City of Prescott, the City of Prescott Police Commission, and police chief Robert Funk (collectively, the City). Most and Massman were terminated from their employment as police officers during the eighteen-month probationary period for new hires established by the applicable collective bargaining agreement. They assert that as a matter of contract they could be terminated only for just cause. Most additionally argues that he was entitled to statutory protection against termination without just cause because he had served on a probationary basis for more than one year. Together, they assert the City deprived them of notice of the reasons for their termination and a hearing at which they could challenge whether those reasons met the “just cause” standard.

We conclude that the “just cause” protections under the applicable collective bargaining agreement do not apply to new officers who have not yet completed the initial probationary period set forth in the contract. We further conclude that, under longstanding precedent, Most is not entitled to the protections against termination afforded by WIS. STAT. § 62.13(5)(em) (2017-18). In reaching that conclusion, we reject Most’s argument that WIS. STAT. § 165.85(4)(a)3. limits the term of a probationary period for all recruits to one year. Accordingly, we affirm the judgment dismissing Most and Massman’s complaint.

Recommended for Publication

Full Text

WI Court of Appeals – District III

Case Name: Nancy Mae Geidel v. David Albert Carow

Case No.: 2018AP1658

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

Focus: Abuse of Discretion – Divorce – Maintenance

David Carow appeals the spousal maintenance portion of a judgment dissolving his marriage to Nancy Geidel. Carow argues that the circuit court erroneously exercised its discretion by misapplying, or failing to apply, all of the statutory factors governing maintenance, and by failing to fully consider the fairness and support objectives before setting the maintenance award. We reject Carow’s arguments and affirm the judgment.

Full Text

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Chong Leng Lee

Case No.: 2018AP1741-CR

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

Focus: Due Process Violation

Chong Lee appeals a judgment convicting him of first-degree intentional homicide by use of a dangerous weapon, possession of afirearm by a felon, and two counts of felony intimidation of a witness, as a party to the crime. Chong now appeals, arguing that: (1) the State violated his right to due process by failing to disclose the December 2013 interviews of Watou, Mikey, and Ryan; (2) the State violated his right to due process by intentionally destroying the recordings of those interviews; and (3) the missing transcripts deprived him of his right to a meaningful appeal. He also appeals an order denying his motion for postconviction relief. Chong argues the circuit court should have dismissed the homicide charge because the State failed to disclose, and later intentionally destroyed, exculpatory evidence. We reject Chong’s arguments and affirm.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. N.M.A.-S.

Case No.: 2018AP2308; 2018AP2309

Officials: BRASH, P.J.

Focus: Ineffective Assistance of Counsel

N.M.A.-S. appeals the orders of the trial court terminating her parental rights of A.A.S. and A.J.S. N.M.A.-S. asserts that she received ineffective assistance of counsel because her trial counsel failed to request a strike for cause or use a peremptory strike for a juror who answered a question affirmatively during voir dire relating to whether someone struggling with addiction is unfit to be a parent.

A postjudgment hearing regarding this claim was held in September 2019. The postjudgment court determined that N.M.A.-S. had not demonstrated that she was prejudiced by this alleged deficiency of trial counsel, and denied her motion for a new trial. We agree and affirm the orders terminating N.M.A.-S.’s parental rights.

Full Text

WI Court of Appeals – District II

Case Name: David A. George, et al. v. Mark R. Triatik

Case No.: 2018AP1407

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

Focus: Court Error – Settlement Agreement Terms

David A. George and Susan M. George appeal from an order of the circuit court (1) denying their motion to enforce the terms of a settlement agreement against neighboring property owner, Mark R. Triatik; (2) granting Triatik’s motion to enforce the settlement agreement against the Georges; and (3) determining that the settlement agreement did not allow the Georges to recover consequential damages for Triatik’s earlier default of performance. The Georges argue that the circuit court improperly relied on a neutral third-party engineer’s verification of performance in determining compliance with the settlement agreement’s terms. We affirm.

Full Text

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Joseph-Jamal R. Brantley

Case No.: 2018AP1607-CR

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

Focus: Brady Violation

Joseph-Jamal Brantley appeals from a judgment convicting him after a jury found him guilty of party to a crime (PTAC) firstdegree reckless homicide with a dangerous weapon, PTAC first-degree recklessly endangering safety with a dangerous weapon, PTAC armed robbery, and carrying a concealed weapon. He also appeals from an order denying his motion for postconviction relief, in which he alleged a Brady violation and prosecutorial misconduct against then Kenosha County District Attorney Robert Zapf. His arguments are unpersuasive. We affirm.

Full Text

WI Court of Appeals – District IV

Case Name: Wesley Horstman, et al. v. Audra B. Dawson

Case No.: 2018AP924

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

Focus: Trusts and Estates – Undue Influence

On November 3, 2016, Carol Horstman executed a will leaving all of her property to her son, Wesley Horstman, and his wife, Marinda Horstman. After Carol died, her daughter, Audra Dawson, challenged the will on the ground that Wesley and Marinda had exercised undue influence over Carol when she executed the will. Following a court trial, the circuit court concluded that Wesley and Marinda procured the will by undue influence. Wesley and Marinda appeal, arguing that: (1) the court’s findings as to certain of the elements that must be proven to establish undue influence are clearly erroneous;  and (2) the court erroneously relied on extrinsic evidence (that is, outside the trial testimony and trial exhibits) in determining that the will was the product of undue influence. We conclude that Wesley and Marinda fail to show either that the court’s findings as to the undue influence elements are clearly erroneous or that the court relied on extrinsic evidence. Accordingly, we affirm.

Full Text

WI Court of Appeals – District IV

Case Name: First Western SBLC, Inc., v. New Lisbon Travel Mart, LLC,

Case No.: 2019AP113

Officials: Blanchard, Graham and Nashold, JJ.

Focus: Estoppel – Foreclosure Action

New Lisbon Travel Mart, LLC, appeals a money judgment in favor of First Western SBLC, Inc., in the amount of $779,013.68. The judgment was entered in a foreclosure action. New Lisbon contends that it was entitled to a $190,000 credit toward the judgment based on a promissory note that it assigned to First Western in a short sale of the underlying property.

New Lisbon’s final argument is that First Western should be estopped from opposing the $190,000 credit based on First Western’s prior conduct. In particular, New Lisbon points to First Western’s insistence that the note be assigned to First Western, and that the note was accompanied by an allonge giving First Western all rights to enforce the note as the holder. New Lisbon asserts that First Western’s conduct was an “admission” that the note “has value.” New Lisbon argues that First Western should not be permitted to now act inconsistently with its admission by claiming that the note has no value or that the value is impossible to determine.

We reject New Lisbon’s estoppel argument because we disagree that First Western’s conduct shows an admission as to the note’s value, particularly when that conduct occurred prior to the failure of Rugg’s business. If there is a true inconsistency between First Western’s position at the time of the short sale and its position now, New Lisbon’s briefing fails to demonstrate it. We affirm.

Full Text

WI Court of Appeals – District IV

Case Name: Brian Todd Mickelson v. Cynthia Lynn Mickelson

Case No.: 2019AP384

Officials: Kloppenburg, Graham, and Nashold, JJ.

Focus: Abuse of Discretion – Divorce – Maintenance Payments

Brian Mickelson appeals a circuit court order requiring him to continue making maintenance payments to Cynthia Mickelson. The issue is whether the court erroneously exercised its discretion by refusing to modify Brian’s maintenance obligation based on Brian’s retirement. We conclude that the court reasonably exercised its discretion. Accordingly, we affirm.

Full Text

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. S.E.M.T.

Case No.: 2019AP1004

Officials: BLANCHARD, J.

Focus: Court Error – Abuse of Discretion

S.E.M.T. appeals two orders waiving juvenile court jurisdiction over him, sending him to adult court to face charges that include first degree sexual assault and armed robbery. S.E.M.T. argues that the circuit court erroneously exercised its discretion in making its waiver decision based on the following determinations: (1) that S.E.M.T. would likely have the benefit of a longer period of appropriate treatment in the adult system than would be available to him in the juvenile system and (2) that the alleged conduct by S.E.M.T. appears to have been premeditated, despite the fact that the court also found that S.E.M.T. has an intelligence quotient (IQ) measured at 63. I disagree that the court erroneously exercised its discretion and accordingly affirm.

Full Text

WI Supreme Court Digests

WI Supreme Court

Case Name: State of Wisconsin v. Robert James Pope, Jr.

Case No.: 2019 WI 106

Focus: Court Error – Trial Transcripts

This is a review of an unpublished opinion of the court of appeals, State v. Pope, No. 2017AP1720-CR, unpublished slip op. (Wis. Ct. App. Nov. 13, 2018), reversing the Milwaukee County circuit court’s order. The circuit court vacated Robert James Pope, Jr.’s (“Pope”) 1996 judgment of conviction for two counts of first-degree intentional homicide, party to a crime, and granted Pope’s postconviction motion for a new trial. The circuit court concluded that a new trial was necessary because there was no transcript of Pope’s 1996 jury trial available. The court of appeals reversed and reinstated Pope’s conviction. The court of appeals concluded that Pope was not entitled to a new trial because he failed to meet his burden to assert a facially valid claim of error. We affirm the court of appeals.

Under State v. Perry and State v. DeLeon, when a transcript is incomplete, a defendant may be entitled to a new trial, but only after the defendant makes a facially valid claim of arguably prejudicial error. Perry, 136 Wis. 2d 92, 101, 401 N.W.2d 748 (1987); DeLeon, 127 Wis. 2d 74, 377 N.W.2d 635 (Ct. App. 1985). This court must decide whether the Perry/DeLeon procedure applies even when the entire trial transcript is unavailable. Pope argues that the Perry/DeLeon procedure does not apply, and that courts should presume prejudice when the entire transcript is unavailable. The State argues that under the Perry/DeLeon procedure Pope is not entitled to a new trial because he has not asserted a facially valid claim of arguably prejudicial error.

We decline to presume prejudice when the entire trial transcript is unavailable. We conclude that the Perry/DeLeon procedure applies whether all or a portion of a transcript is unavailable. We also decline to create an exception to the Perry/DeLeon procedure for Pope because the transcript is affirmed.

Affirmed

Concur:

Dissent: BRADLEY, REBECCA GRASSL, J., filed a dissenting opinion, in which BRADLEY, ANN WALSH and DALLET, JJ., joined.

Full Text

WI Supreme Court

Case Name: Office of Lawyer Regulation v. Beth M. Bant

Case No.: 2019 WI 107

Focus: Attorney Disciplinary Hearing

Attorney Beth M. Bant appeals the report of Robert E. Kinney, referee, recommending that this court suspend her Wisconsin law license for six months, impose the full costs of this proceeding, and order her to undergo a psychological evaluation for consideration at any future reinstatement proceeding. The referee determined that Attorney Bant committed the two counts of misconduct that the Office of Lawyer Regulation (OLR) complaint alleged and to which she eventually stipulated: engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of Supreme Court Rule (SCR) 20:8.4(c), and violating a standard of conduct set forth in one of this court’s decisions, in violation of SCR 20:8.4(f).

After fully reviewing this matter, we reject all but one of Attorney Bant’s arguments on appeal. We accept the referee’s findings of fact (with one minor exception, noted below), and we agree that those facts establish that Attorney Bant committed the two misconduct counts brought by the OLR. We further agree with the referee that those violations require the imposition of a six month suspension. We also determine that Attorney Bant should be required to pay the full costs of this proceeding, which total $10,177.91 as of July 11, 2019. We do not, however, accept the referee’s recommendation that Attorney Bant undergo a psychological evaluation at this time.

Licensed suspended

Concur:

Dissent:

Full Text

WI Supreme Court

Case Name: Office of Lawyer Regulation v. Donald J. Harman

Case No.: 2019 WI 108

Focus: Attorney Disciplinary Hearing

Attorney Donald J. Harman has appealed a report and recommendation filed by Referee Allan E. Beatty, concluding that Attorney Harman committed three counts of professional misconduct and recommending that his license to practice law in Wisconsin be suspended for six months. Rather than challenging the referee’s findings of fact or conclusions of law, Attorney Harman argues on appeal that the referee should have recused himself. Attorney Harman did not request a substitution of the referee pursuant to SCR 22.13(4). When he subsequently raised the issue of the referee’s participation, he refused to participate in a scheduled telephone conference at which the recusal issue would have been addressed. Based on these facts, we find that Attorney Harman waived his objection to the referee’s participation in this matter.

Upon careful review of this matter, we uphold the referee’s findings of fact and conclusions of law, and we agree that a six-month suspension of Attorney Harman’s Wisconsin law license is an appropriate sanction for the misconduct at issue. We further agree with the referee that, as a condition of the reinstatement of his license, Attorney Harmon should be required to satisfy a judgment entered against him. We also find it appropriate to follow our usual custom of imposing the full costs of this proceeding, which are $7,662.28 as of May 13, 2019, on Attorney Harman.

License suspended

Concur:

Dissent:

Full Text

WI Supreme Court

Case Name: Lamar Central Outdoor, LLC.  v. State of Wisconsin Division of Hearings & Appeals

Case No.: 2019 WI 19

Focus: Statutory Interpretation Changes

From time to time an administrative agency changes its interpretation of a statute in a manner that adversely affects a regulated activity. Here, an agency developed a new statutory interpretation that prohibited the owner of a roadside sign from remedying a modification that caused the sign to lose its “legal, nonconforming” status. In this case we address whether Wis. Stat. § 227.10(1)(2015-16) required the agency to promulgate a rule containing the new statutory interpretation before applying it against the sign owner. We conclude that our statutes do require promulgation of a new rule under circumstances presented by this case, and therefore we reverse the decision of court of appeals.

Reversed and remanded

Concur:

Dissent:

Full Text

Polls

Should Wisconsin Supreme Court rules be amended so attorneys can't appeal license revocation after 5 years?

View Results

Loading ... Loading ...

Legal News

See All Legal News

WLJ People

Sea all WLJ People

Opinion Digests