Weekly Case Digests – March 9, 2020 – March 13, 2020

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: William B. Shipley, et al. v. Chicago Board of Election Commissioners, et al.

Case No.: 17-3511

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

Focus: Election Fraud

Claims of election fraud are not new in Illinois. Plaintiffs William B. Shipley and Katherine Wuthrich were credentialed election monitors in Chicago during the 2016 Illinois primary election and Plaintiff Nina Marie voted in the election. They allege that during the statutorily mandated post-election audit of electronic voting machines, they witnessed rampant fraud and irregularities by the Chicago Board of Election Commissioners’ (the “Board”) employees conducting the audit. Plaintiffs filed suit in federal court under 42 U.S.C. § 1983 alleging this post-election audit fraud violated their right to vote.

The problem with Plaintiffs’ allegations, however, is that Illinois law expressly precludes the findings of the post-election audit from changing or altering the election results. In other words, no matter how improper the Board employees’ conduct was during the audit, it could not have affected Plaintiffs’ right to vote. For this reason, the district court dismissed the complaint for failure to state a claim. And for the same reason, we affirm the district court’s judgment.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Mario Caviedes-Zuniga

Case No.: 19-1104

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

Focus: Plea & Sentencing – Sentencing Guidelines

Mario Caviedes-Zuniga pleaded guilty to distributing 140 grams of heroin. 21 U.S.C. §841(a)(1), (b)(1)(B). He was sentenced to 111 months’ imprisonment, a term 77 months below the low end of the range (188 to 235 months) recommended by the Sentencing Guidelines. After filing a notice of appeal, he told his lawyer that he wants a trial. He also told counsel that he does not wish to contest his sentence, if the conviction remains in place. Counsel evaluated the potential arguments and has asked to withdraw, representing that he deems the appeal frivolous. See Anders v. California, 386 U.S. 738 (1967). Caviedes-Zuniga received a copy of this submission but did not respond. See Circuit Rule 51(b).

Before filing motions and briefs under Anders, criminal defense lawyers should find out whether their clients wish to contest their guilty pleas. See, e.g., United States v. Konczak, 683 F.3d 348 (7th Cir. 2012); United States v. Knox, 287 F.3d 667 (7th Cir. 2002). As those decisions explain, a plea bargain may provide a defendant with substantial benefits—for example, dismissal of some counts of an indictment, a sentence reduction for accepting responsibility, or a concession by the prosecutor about the quantity of drugs or financial loss attributable to the defendant’s course of conduct—that would be lost if the plea were withdrawn on grounds such as a district judge’s failure to provide all of the advice required by Fed. R. Crim. P. 11. Before presenting arguments that could make the defendant worse off, we held, counsel should obtain the defendant’s informed consent to the risks. If the defendant is content to let the guilty plea stand, counsel need not advance or discuss potential ways to have the plea vacated. “Appellate lawyers are not obliged to raise issues that could boomerang on their clients; it is no failure of advocacy to leave well enough alone.” Knox, 287 F.3d at 671.

Caviedes-Zuniga’s lawyer contends that the same principle applies to sentencing, for a successful effort to upset a sentence may harm a defendant. See, e.g., United States v. Masters, 978 F.2d 281 (7th Cir. 1992). Caviedes-Zuniga’s situation shows why. His sentence, years below the lower bound of the applicable range, easily could rise on remand. The district court gave him substantial credit for accepting responsibility. A judge might well reconsider that discount on learning that on appeal Caviedes-Zuniga tried to have the plea vacated, even if the attempt failed. The district judge also observed that Caviedes-Zuniga had been induced by his family to enter the drug trade, had spent time in pretrial detention (in Colombia as well as the United States), and had assisted a prosecutor in Florida during an investigation of counterfeiting. If we were to vacate the sentence, the case could be reassigned to a judge who would weigh these matters less favorably to Caviedes-Zuniga. And of course new criminal conduct (or misconduct in prison) might come to light before a resentencing, affecting the Guidelines’ range or the appropriate exercise of discretion.

A challenge to a sentence, no less than a challenge to the validity of a guilty plea, carries risks as well as conceivable benefits for a defendant. Lawyers therefore must ensure that a defendant understands these risks and makes an informed choice whether to contest the sentence. Counsel assures us that he discussed the risks and benefits with Caviedes-Zuniga, who decided not to dispute his sentence. It was accordingly unnecessary for counsel to discuss, under the Anders procedure, potential arguments in support of resentencing, and it is also unnecessary for us to discuss them.

As we mentioned earlier, Caviedes-Zuniga did ask his lawyer to challenge the guilty plea. Counsel reviewed several potential arguments but concluded that all are frivolous. For the reasons given in a nonprecedential order issued contemporaneously with this opinion, we agree with counsel’s assessment. We therefore grant counsel’s motion to withdraw and dismiss the appeal as frivolous.

Motion granted. Appeal dismissed.

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7^th Circuit Court of Appeals

Case Name: Lexington Insurance Company, et al. v. RLI Insurance Company

Case No.: 19-1426

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

Focus: Insurance – Settlements – Equitable Contribution

In this contract dispute, two insurers of New Prime, Inc., a trucking company, accuse a third insurer of not paying its share toward two multimillion-dollar personal injury settlements. Plaintiffs Lexington Insurance Company and National Union Fire Insurance Company contend that defendant RLI Insurance Company underpaid according to the policy it sold to New Prime, leaving National Union to make up the difference.

In the district court, Lexington and National Union sought a declaratory judgment as to the meaning of the RLI Policy and equitable contribution of $2.5 million from RLI toward the settlements in question. Both sides moved for summary judgment. Both based their motions on the language of the RLI Policy and on extrinsic evidence of the parties’ intent. The district court granted summary judgment to RLI, relying exclusively on contract language that it found unambiguous. We affirm. The text of the RLI Policy is not as clear to us as it was to the district court, but undisputed extrinsic evidence shows that RLI’s position is correct.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Menominee Indian Tribe of Wisconsin v. Environmental Protection Agency, et al.

Case No.: 19-1130

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

Focus: EPA – Challenge to Issuance of Permits

For the Menominee Indian Tribe, the river that bears its name is a place of special importance. The Menominee River runs along the border between Northern Wisconsin and Michigan’s Upper Peninsula. According to its origin story, the Tribe came into existence along the banks of the River thousands of years ago. This birthplace contains artifacts and sacred sites of historic and cultural importance to the Tribe. All these years later, the Tribe returns to the riverbanks for ceremonies and celebrations.

Sometime before 2017, the Tribe learned that Aquila Resources intended to embark on a mining project known as the Back Forty alongside the Menominee River and in close proximity to Wisconsin’s northeast border. Aquila successfully applied for several necessary permits from the state of Michigan. Concerned the project would disrupt and dislocate aspects of tribal life, the Tribe wrote letters to the Environmental Protection Agency and Army Corps of Engineers asking both agencies to reconsider its 1984 decision to allow Michigan, instead of the federal government, to issue certain permits under the Clean Water Act. The EPA and Army Corps responded not by revisiting the prior delegation of permitting authority but instead by informing the Tribe of what it already knew—that Michigan would decide whether to issue a so-called dredge-and-fill permit to authorize Aquila’s Back Forty project.

The Tribe responded on two fronts—first by commencing an administrative proceeding in Michigan and second by filing suit in federal court in Wisconsin. The district court dismissed the Tribe’s complaint on the ground that it did not challenge any final action taken by the EPA or Army Corps. The court also denied the Tribe’s request to amend its complaint. Despite reservations about how the federal agencies responded to the Tribe’s concerns, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Shawn Karst

Case No.: 18-3675

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

Focus: Sentencing Guidelines – Revocation

Leaving an untouched pizza on the table, Shawn Karst exited a restaurant with two men who wore Mesticas motorcycle club vests. The three drove off on their bikes, and a few minutes later one of the two men with Karst pulled the trigger in a drive‐by shooting. At the time, Karst was on supervised release. Authorities petitioned for Karst’s revocation, but the request traveled a bumpy road. The magistrate judge vacated the petition after finding the evidence presented did not show probable cause to believe Karst violated the release conditions. The district judge quickly reinstated the proceedings. He later held a final hearing at which release was revoked, and Karst received 30 more months of imprisonment.

On appeal Karst challenges the lack of a preliminary hearing on the reinstated revocation petition, whether the district court provided him with adequate notice of his allegedly violative conduct, and the district court’s failure to consult the sentencing guidelines when deciding his revocation term. For these reasons, we AFFIRM IN PART, REVERSE IN PART, and REMAND for further proceedings. We see no grounds for Karst’s call to reassign this case under Circuit Rule 36, so we decline that request.

Affirmed in part. Reversed and remanded in part.

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7^th Circuit Court of Appeals

Case Name: United States of America v. Joel J. Helding

Case No.: 18-3270

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

Focus: Abuse of Discretion – Sentencing Guidelines

Police seized 143.7 kilograms of marijuana from Joel Helding’s car and apartment, and he pleaded guilty to possessing over 100 kilograms. But at sentencing, the district court held him responsible for the equivalent of 4,679.7 kilograms—over 32 times the amount seized. The additional quantity was based solely on the Presentence Investigation Report’s account that confidential informants told law enforcement Helding was dealing significant quantities of methamphetamine during the relevant period. The drug quantity determination had a sizeable effect on Helding’s advisory guidelines range, and it drove his ultimate sentence of 18 years’ imprisonment.

A sentencing court acts within its discretion when it credits confidential informants’ statements about drug quantity, but when a defendant objects, the evidence supporting that quantity must be found to be reliable. While that step may prove modest, it needs to be taken, lest a defendant face the risk of being sentenced on the basis of unreliable information. The statements here, without more, fell short of that threshold. So we reverse and remand for resentencing.

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: Urija Elston v. County of Kane

Case No.: 19-1746

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

Focus: Statutory Interpretation – Scope of Employment

Urija Elston and his friends were playing basketball at a park in DuPage County while Brian Demeter, an off-duty sheriff’s deputy for neighboring Kane County, was watching his child’s soccer game on an adjacent field. When Elston and his friends started heckling one another with salty language, Demeter confronted them and demanded that they stop using expletives. Flashing both his badge and gun from under his plainclothes, Demeter also warned the group to “watch who you’re messing with.” When the boys refused to clean up their language, Demeter grabbed Elston by the neck, threw him to the ground, and climbed on top of him. At some point during the struggle, Demeter tried to pull Elston’s arms behind his back, as though attempting to arrest him. Bystanders separated Demeter and Elston, but not before Demeter could rip Elston’s shirt in an attempt to keep hold of him.

Under Illinois law, there are three necessary criteria for an employee’s action to be within the scope of his employment. First, the relevant conduct must be of the kind that the employee was employed to perform. Second, the conduct must have occurred substantially within the time and space limits authorized by the employment. And third, the conduct must have been motivated, at least in part, by a purpose to serve the employer. See Adames v. Sheahan, 909 N.E.2d 742, 755 (Ill. 2009) (citing RESTATEMENT (SECOND) OF AGENCY § 228 (AM. LAW INST. 1958)). Because “all three criteria … must be met,” failure to establish any one of them is sufficient to place conduct outside the scope of employment. Id. Thus, to survive the County’s motion for summary judgment, Demeter must show that a reasonable jury could find in his favor on all three criteria.

The parties dispute whether Demeter’s action satisfied the first criterion—i.e., whether the conduct was of the kind that Demeter would perform as a sheriff’s deputy. We’re willing to assume for the sake of argument that it was. Even so, Elston cannot succeed because he has not met his burden on the second and third criteria. On the second, Elston must show that there is a genuine dispute of material fact with respect to whether Demeter’s conduct occurred substantially within the time and space limits authorized by his employment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986).

Like the correctional official in Copeland, Demeter’s conduct did not advance any valid goal of his employer. The Kane County Sheriff’s Office had no interest in “maintaining the peace” in a neighboring county. And it’s not as though Demeter was responding to an emergency—no one would characterize the use of expletives as a crisis. No reasonable jury could conclude that Demeter’s actions were motivated, even in part, by an intent to serve his employer’s interests. Instead, on his day off with his family, Demeter acted out of personal animus to accost, threaten, and physically assault a teenager for using foul language within earshot of spectators and players at his child’s soccer game. The fact that Demeter used his badge, gun, and training in an unauthorized manner in pursuit of that purely personal goal does not bring his conduct within the scope of his employment.

The district court’s entry of summary judgment in favor of the County is AFFIRMED.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Quentin Crabtree v. Experian Information Solutions, Inc.,

Case No.: 18-3416; 18-3405

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

Focus: FDCPA Violation

We know from the Supreme Court’s decision in Spokeo, Inc. v. Robins that a plaintiff claiming a statutory violation must allege a concrete and particularized injury for Article III standing. Recent years have shown that this principle is often easier to observe than to apply. The claim in this appeal falls on the easier side. Quentin Crabtree filed this suit against Experian for what he contends was an unauthorized release of his credit information under the Fair Credit Reporting Act. Experian responded by going on the offensive by itself bringing a FCRA counterclaim against Crabtree. The district court dismissed Crabtree’s claim because any injury was exceedingly remote and speculative. We agree. We further conclude that Experian’s counterclaim likewise fails for lack of standing and therefore affirm across the board.

Affirmed

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7^th Circuit Court of Appeals

Case Name: A.F. Moore & Associates, Inc., et al. v. Maria Pappas, Cook County Treasury, et al.

Case No.: 19-1971; 19-1979

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

Focus: Tax Injunction Act – Jurisdiction

The Equal Protection Clause entitles owners of similarly situated property to roughly equal tax treatment. Allegheny Pittsburgh Coal Co. v. Cty. Comm’n, 488 U.S. 336, 345–46 (1989). A group of taxpayers asserts that the tax assessor for Cook County violated that guarantee by assessing their properties at the rates mandated by local ordinance while cutting a break to other owners of similarly situated property. The taxpayers pursued a refund in Illinois court, where they remain tied up in litigation after more than a decade. Frustrated, they turned to federal court for relief, arguing that Illinois’s procedural rules for challenging property taxes prevent them from proving their federal constitutional claims in state court. The district court disagreed and held that the Tax Injunction Act, 28 U.S.C. § 1341, barred their federal suit. The Act strips federal district courts of jurisdiction over challenges to state and local taxes as long as the taxpayer has an adequate forum in state court to raise all constitutional claims. This appeal concerns whether Illinois courts offer a sufficient forum. The issue is made simpler by the County’s concession that Illinois’s tax-objection procedures do not allow the taxpayers to raise their constitutional claims in state court. We are left to conclude that this is the rare case in which taxpayers lack an adequate state-court remedy. The Tax Injunction Act therefore does not bar the taxpayers’ federal suit, so we reverse the district court’s dismissal.

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: Terez Cook v. Brian Foster, Warden,

Case No.: 18-2214

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

Focus: Ineffective Assistance of Counsel

Federal courts do not lightly grant petitions for a writ of habeas corpus brought by state prisoners. As the Supreme Court put it in Harrington v. Richter, 562 U.S. 86 (2011), if the “standard [for relief] is difficult to meet, that is because it was meant to be.” Id. at 102. Nonetheless, “difficult” does not mean “impossible,” as the Court reaffirmed in Richter: “The writ of habeas corpus stands as a safeguard against imprisonment of those held in violation of the law.” Id. at 91. Our task in the present case is to decide whether petitioner Terez Cook demonstrated that Wisconsin’s court of appeals unreasonably assessed his contention that he did not receive the effective assistance of counsel guaranteed by the Sixth Amendment. See Strickland v. Washington, 466 U.S. 668 (1984). The district court thought that Cook’s showing fell short, but we conclude that he is entitled to relief. We therefore reverse.

Reversed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Mitrel Y. Anderson, et al.

Case No.: 18-1870; 18-3096

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

Focus: Sentencing – Supervised Release

We have before us criminal defendants contending for the first time on appeal that a condition of their terms of supervised release is unconstitutionally vague. We have seen scores of similar appeals in the last six years. And in a series of recent opinions, we have held—in no uncertain terms—that a defendant who receives an opportunity to object to a proposed condition of supervised release at sentencing but fails to do so waives his objection. That binding precedent is the law of the Circuit. It resolves these appeals, so we affirm.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: George W. Hendrix, et al. v. Secura Insurance, et al.

Case No.: 2018AP1103

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

Focus: Summary Judgment – Issue of Material Fact

George Hendrix suffered injuries when he slipped and fell on compacted snow in a parking lot that Dedicated Fleet Services, LLC (“DFS”) leased from 4X Corporation (“4X”).  Hendrix and his spouse, Wanda Hendrix, brought claims of common-law negligence and violations of Wisconsin’s safe place statute against both DFS and 4X.  The circuit court granted summary judgment to 4X on the ground that 4X lacked notice of the unsafe condition in the parking lot prior to Hendrix’s accident. The court denied DFS summary judgment, however, based on its conclusion that there was a disputed issue of material fact as to whether DFS had such notice.

DFS now appeals, arguing that: (1) the circuit court erred by determining that there was a disputed issue of material fact as to whether DFS had notice of the unsafe condition in the parking lot prior to Hendrix’s accident; and (2) the court erred by granting summary judgment to 4X. We reject DFS’s first argument on its merits and conclude that DFS forfeited its second argument by failing to oppose 4X’s motion for summary judgment below. Accordingly, we affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Henry Pocan

Case No.: 2018AP1235

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

Focus: Sufficiency of Evidence

Henry Pocan appeals from an order denying his petition for discharge from a commitment under WIS. STAT. ch. 980 (2017-18). Pocan challenges both the adequacy of the circuit court’s articulation of its findings of ultimate fact and the sufficiency of the evidence to support the court’s determination. We conclude the court’s factual findings were adequately stated and there was sufficient evidence to support the court’s determination. Accordingly, we affirm the order denying discharge.

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WI Court of Appeals – District III

Case Name: Teresa Storm, et al. v. Wisconsin Mutual Insurance Company, et al.

Case No.: 2018AP1285

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

Focus: Insurance Claim – Coverage

Teresa Storm appeals a declaratory judgment dismissing Storm’s claims against Wisconsin Mutual Insurance Company. The circuit court validated a reducing clause limiting the amount of available underinsured motorist (UIM) coverage. Storm argues the reducing clause was invalid because Wisconsin Mutual failed to make a proper disclosure of the policy renewal with altered terms, pursuant to the requirements of WIS. STAT. § 631.36(5) (2017-18).  We reject Storm’s argument and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Lynnott Rogers

Case No.: 2019AP64

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

Focus: Sentencing – Supervised Release

Lynnott Rogers appeals an order of the trial court denying his petition for supervised release from his commitment for being a sexually violent person, pursuant to WIS. STAT. ch. 980 (2017-18). The trial court held that Rogers did not meet the statutory criteria for supervised release. We agree and affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Anthony J. Madland

Case No.: 2019AP146-CR

Officials: SEIDL, J.

Focus: OWI – Motion to Suppress Evidence Denied – Blood Test

Anthony Madland appeals a judgment of conviction, entered upon his no-contest plea, to third-offense operating a motor vehicle with a prohibited alcohol concentration (PAC). He asserts the circuit court erred by denying his motion to suppress evidence of the result of a chemical blood test that he submitted to after his arrest for suspected operating a motor vehicle while intoxicated (OWI). Madland argues that the law enforcement officer who stopped him failed to comply with the officer’s duties under Wisconsin’s implied consent statute, WIS. STAT. § 343.305(2). We reject Madland’s arguments and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Camron Rufus Spencer

Case No.: 2019AP912-CR; 2019AP913-CR

Officials: DUGAN, J.

Focus: Sentence Credit

Camron Rufus Spencer, pro se, appeals the circuit court’s orders denying his initial postconviction motion, and his motion for reconsideration, after he pled guilty to and was convicted of one count of misdemeanor battery as an act of domestic violence as a repeater, and one count of misdemeanor victim intimidation as an act of domestic violence as a repeater.

On appeal, Spencer argues that the trial court erred when it concluded that he is not entitled to jail time sentence credit for the 179-day period that he was in custody between June 2 and November 28, 2017. We conclude the trial court properly determined that Spencer was not entitled to the sentence credit for that time period. Therefore, we affirm.

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WI Court of Appeals – District IV

Case Name: Applegate-Badger Farm, LLC, v. Wisconsin Department of Revenue, et al.

Case No.: 2018AP1239

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

Focus: Environmental Impact Statement – WEPA – Statutory Interpretation

The appeal in this case involves the interpretation of statutes governing administrative rule-making in Wisconsin. The cross-appeal involves the application of case law addressing the Wisconsin Environmental Protection Act or “WEPA,” WIS. STAT. § 1.11 (2017-18). Both issues arise in the context of the challenge of property owner Applegate-Bader Farms, LLC (“the LLC”) to amendments to a rule promulgated by the Wisconsin Department of Revenue (“the Department”). The rule is WIS. ADMIN. CODE § Tax 18.05(1)(d) (through Dec. 2019), which defines some of the property uses that qualify as “agricultural use” for property tax classification purposes.

The circuit court granted the LLC’s motion for summary judgment on the grounds that the manner in which the Department promulgated the amended version of § Tax 18.05(1)(d)—after the Department made changes to an initial draft of the rule—failed to comply with three rule-making procedures in WIS. STAT. ch. 227. The court ruled that the Department should have prepared a revised scope statement, held a second public hearing, and prepared a revised economic impact analysis.

In the appeal, the Department argues that the LLC does not rebut the statutory presumption that the Department’s promulgation of the rule amendments complied with the pertinent WIS. STAT. ch. 227 rule-making procedures. We agree with the Department’s argument and accordingly we reverse that portion of the circuit court’s order.

In the cross-appeal, the LLC challenges the separate ruling of the circuit court that rejected an additional reason to invalidate § Tax 18.05(1)(d) as amended, based on WEPA. The LLC argues that the Department violated WEPA by failing to sufficiently investigate the potential environmental effects of amending the rule before deciding not to prepare an environmental impact statement. We conclude that the LLC’s challenge to the amendments to § Tax 18.05(1)(d) based on WEPA fails because the LLC alleges only “indirect” environmental effects, which under Wisconsin case law are not alone sufficient to trigger the Department’s duty to justify a decision not to prepare an environmental impact statement. Accordingly, we affirm that portion of the court’s order.

Recommended for Publication

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WI Court of Appeals – District IV

Case Name: Stafferd Dean Call v. Lu Ann Kay Call

Case No.: 2018AP1358

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

Focus: Divorce Judgment

Lu Ann Call appeals an order denying her motion to vacate a divorce judgment entered pursuant to a marital settlement agreement. We affirm.

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WI Court of Appeals – District IV

Case Name: John M. Schuepbach, et al. v. Leistikow Properties, LLC, et al.

Case No.: 2018AP1433

Officials: Fitzpatrick, P.J., Graham and Nashold, JJ.

Focus: Damages

This case arose out of actions by the Bank of Deerfield when it took possession of a bar as part of a foreclosure action in which the Bank had been appointed as receiver. The Bank’s action resulted in the bar’s closure. At the time the Bank took possession, Leistikow Properties, LLC owned the bar’s real estate. Loga Investments, LLC owned the bar’s business, Mindy’s Silver Fox Bar & Grill, and the bar’s personal property, including liquor, food, furniture, fixtures, and the money in the till.

In response to the Bank’s conduct, Loga filed a cross-claim to the foreclosure action, which is the subject of this appeal. Loga’s cross-claim alleged that, as a result of the Bank’s shutdown of Loga’s business and confiscation of Loga’s property, the Bank committed conversion, civil theft, and trespass. After a three-day bench trial, the circuit court issued a decision in favor of Loga on all claims, and awarded Loga damages. The Bank appeals three of the court’s determinations: (1) the civil theft judgment; (2) the resulting exemplary damages award; and (3) the circuit court’s calculation of actual damages for conversion. We affirm the circuit court’s ruling in all respects.

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WI Court of Appeals – District IV

Case Name: Joseph Taggart, et al. v. Town of Little Wolf, et al.

Case No.: 2018AP1931

Officials: Blanchard, Kloppenburg, and Nashold, JJ.

Focus: Summary Judgment – Issue of Material Fact 

The Town of Little Wolf appeals the judgment of the circuit court declaring that a 1/4-mile segment of a road near property owned by Joseph and Karla Taggart became a town highway after it was laid out by order of the Town in 1898 as part of a 1½-mile town highway, and that the 1/4-mile segment remains part of a town highway. The circuit court determined on summary judgment that there is no genuine issue of material fact that the disputed 1/4-mile segment now qualifies as being part of a town highway, as opposed to either always having been a private road or to having reverted to the status of a private road. Stated in statutory terms, the court determined that there are no genuine issues of material fact about whether the disputed segment became a “legal highway” pursuant to WIS. STAT. § 82.31(1) (2017-18), and also no genuine issues of material fact about whether the disputed portion was “discontinued” as a “public highway” pursuant to WIS. STAT. § 82.19(2). We agree with the Taggarts that the circuit court’s declaration regarding the disputed segment is proper based on the evidence submitted by the parties, applying interpretations of the applicable statutes that the Town either advances or does not dispute.

In what amounts to a sub-issue, the Town contends that the circuit court erroneously designated as part of the town highway a 332-foot portion that extends beyond the disputed 1/4-mile segment, because there is no evidence to support declaring the 332-foot portion part of the town highway. As the Taggarts acknowledge on appeal, they conceded the point in the circuit court, forfeiting the issue for purposes of this litigation.

Accordingly, we direct that the judgment be modified to account for the 332-foot portion, but affirm the judgment as modified.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Michael S. Coleman

Case No.: 2019AP1999-CR

Officials: KLOPPENBURG, J.

Focus: Damages

Michael S. Coleman challenges the circuit court’s award of $2,881.71 in restitution for damage Coleman caused to a City of Wisconsin Rapids Police Department squad car. As I explain, I reject Coleman’s arguments and, therefore, affirm.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Office Lawyer Regulation v. Terry L. Constant

Case No.: 2020 WI 4

Focus: Attorney Disciplinary Hearing

Attorney Terry L. Constant has appealed a report and recommendation filed by Referee Dennis J. Flynn, concluding that Attorney Constant committed eight counts of professional misconduct and recommending that his license to practice law in Wisconsin be suspended for five months. Attorney Constant argues that the referee mistakenly allowed his bank records into evidence; that the Office of Lawyer Regulation (OLR) failed to meet its burden of proof as to the eight counts of  misconduct; that the referee erred in making a credibility determination; and that a five-month suspension of his license to practice law is an excessive sanction. The OLR has filed a cross appeal arguing that a five-month suspension is insufficient and that this court should suspend Attorney Constant’s license for at least one year.

Upon careful review of this matter, we uphold the referee’s findings of fact and conclusions of law. We conclude that a six-month suspension of Attorney Constant’s Wisconsin law license is an appropriate sanction for the misconduct at issue. We also find it appropriate to follow our normal custom of imposing the full costs of this disciplinary proceeding, which are $13,409.63 as of December 10, 2019, on Attorney Constant.

License suspended

Concur:

Dissent: HAGEDORN, J. dissents (opinion filed)
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WI Supreme Court

Case Name: Wisconsin Judicial Commission v. the Honorable Kenneth W. Gorski

Case No.: 2020 WI 5

Focus: Judicial Disciplinary Hearing

We review, pursuant to Wis. Stat. § 757.91 (2017-18), a Judicial Conduct Panel’s findings of fact, conclusions of law, and recommendation for discipline for the Honorable Kenneth W. Gorski, a part-time court commissioner for the Wood County circuit court. Based on Commissioner Gorski’s answer, the Judicial Conduct Panel found that the facts alleged in the complaint filed by the Wisconsin Judicial Commission were established as true and determined that those facts supported the legal conclusion that Commissioner Gorski had willfully violated several rules of the Code of Judicial Conduct, which constitutes judicial misconduct under Wis. Stat. § 757.81(4)(a).4 The Judicial Conduct Panel recommends that Commissioner Gorski be publicly reprimanded for his judicial misconduct. We adopt the Judicial Conduct Panel’s findings of fact, we agree that those facts demonstrate that Commissioner Gorski committed judicial misconduct, and we publicly reprimand him for that misconduct.

Public reprimand imposed

Concur:

Dissent:
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