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Weekly Case Digests – April 13, 2020 – April 17, 2020

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

Weekly Case Digests – April 13, 2020 – April 17, 2020

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

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7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Stephen R. West v. Louisville Gas & Electric Company, et al.

Case No.: 19-2442

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

Focus: Easement

This appeal presents a question about how 47 U.S.C. §541(a)(2), part of the Cable Communications Policy Act of 1984, affects use of a utility easement in Indiana. In 1938 a predecessor of Stephen West granted a perpetual easement to a predecessor of Louisville Gas & Electric Company, permitting it to build and maintain a 248-foot-tall tower carrying high-voltage electric lines. (Ownership of both the underlying land and the easement has changed hands since 1938. For simplicity we refer to the current owners.) In 2000 Louisville Gas permitted Charter Communications to install on the towers a fiber-optic cable that carries communications (telephone service, cable TV service, and internet data). Louisville Gas asked in 1990 for explicit permission to do this, and West refused. In 2000 it concluded that the existing easement allows the installation of wires that carry photons (that is, fiber-optic cables) along with the wires that carry electrons. West disagreed and filed this suit under the diversity jurisdiction, seeking compensation from Louisville Gas, under Indiana’s substantive law, for the addition of the new cable.

It is easy to imagine a rule of state law under which only the most explicit language in an easement dedicates the land to any given use— and it is equally easy to imagine a rule of state law that reads easements more broadly. Where does Indiana stand? The answer is that Indiana is permissive. It treats easements as permitting new uses compatible with the original grant. See Howard v. United States, 964 N.E.2d 779, 783 (Ind. 2012) (“a new use that is compatible with the original purpose is within the scope of the easement”) (emphasis in original), relying on Fox v. Ohio Valley Gas Corp., 235 N.E.2d 168 (Ind. 1968). “The owner of an easement, known as the dominant estate, possesses all rights necessarily incident to the enjoyment of the easement. The dominant estate holder may make repairs, improvements, or alterations that are reasonably necessary to make the grant of the easement effectual.” McCauley v. Harris, 928 N.E.2d 309, 314 (Ind. App. 2010) (internal citation omitted). See also Rehl v. BilleI, 963 N.E.2d 1 (Ind. App. 2012). What’s more, most states permit the holder of an easement to allow third parties to use rights available under the easement. See Restatement (Third) of Property (Servitudes) §5.9 (2000). We have not seen anything to suggest that Indiana would reject that principle.

So as far as we can tell, then, the use that Louisville Gas and Charter have jointly made of the easement is permissible under Indiana law. At least the air rights have been “dedicated” to transmission, and a telecom cable is “compatible” with electric transmission. Both photons and electrons are in the electromagnetic spectrum. Now that West and Louisville Gas have settled their own differences about the scope of the 1938 easement, there is no basis for any relief against Charter. Whether other states’ laws, or other situations (such as an easement for a buried gas pipeline being used as the springboard for a cable company to build towers and string lines above the corridor), would justify a more restrictive reading of what has been “dedicated for compatible uses” is a question for some other case.

Affirmed

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7th Circuit Court of Appeals

Case Name: Carolyn Mascow, et al. v. Board of Education of Franklin Park School District No. 84; et al.

Case No.: 19-2563     

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

Focus: Due Process Violation

Carolyn Mascow, a teacher who had tenure under Illinois law, was laid off in 2017. Because her latest rating was “unsatisfactory,” she was not only first in line for layoff when the school lost one position but also lacked any recall rights if the school district began hiring again—as it did. She contends in this suit under 42 U.S.C. §1983 that the Due Process Clause of the Fourteenth Amendment entitled her to a hearing before the layoff and that the “unsatisfactory” rating violated the First Amendment, applied to the states through the Fourteenth. The district court dismissed the due-process claim on the pleadings and in a second order granted summary judgment to defendants on the first-amendment claim. 2019 U.S. Dist. LEXIS 120074 (N.D. Ill. July 18, 2019).

Local 571 of the Illinois Federation of Teachers joined Mascow as a plaintiff. Although the notice of appeal named both Mascow and Local 571, their joint brief does not make any argument on the Union’s behalf. We treat its claims as abandoned. The problem with this potential subject is that Mascow was rated “unsatisfactory” in February 2017, one month before being told that she would be laid off (and four months ahead of the layoff’s effective date). If she had an opportunity for a hearing when she received the “unsatisfactory” rating, she would not be entitled to a second hearing when laid off. And it would not matter whether she used or bypassed an opportunity in February 2017; a state need not offer more than one opportunity for a hearing about a subject.

Neither Illinois nor Mascow’s school district offers a formal process for contesting a rating. The litigants agree, however, that teachers have informal opportunities to seek review. Neither the district judge nor the parties’ briefs in this court address just how teachers can obtain review of their ratings and whether those opportunities satisfy the constitutional need for “some kind of hearing.” Goss, 419 U.S. at 579 (emphasis in original). Neither the district judge nor the litigants has attempted to apply the approach prescribed by Mathews v. Eldridge, 424 U.S. 319 (1976), for determining what kind of process is due in a given situation. It would be inappropriate for an appellate court to try to resolve these subjects without briefs focused on the vital issues. They should be considered first by the district court.

The judgment is vacated to the extent that it addresses Mascow’s claim under the Due Process Clause and otherwise is affirmed. The case is remanded for proceedings consistent with this opinion.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Ionel Muresanu

Case No.: 18-3690

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

Focus: Jury Instructions

Ionel Muresanu was arrested in Wisconsin for his role in a multistate ATM skimming operation. A grand jury charged him with four crimes: possession of counterfeit access devices and three counts of aggravated identity theft. The identity-theft charges were legally defective. The indictment alleged that Muresanu attempted to commit aggravated identity theft, but there is no such federal crime; the statutory definition of aggravated identity theft doesn’t cover attempts.

Muresanu’s attorney did not object to the defective indictment in a pretrial motion under Rule 12(b)(3) of the Federal Rules of Criminal Procedure. Instead, he strategically waited until trial and moved for acquittal on the identity theft counts after the government rested its case. The district judge denied the motion, ruling that Muresanu waived the objection by failing to raise the matter in a Rule 12(b)(3) motion. The judge then deleted the attempt language from the jury instructions and instructed the jury on the elements of the completed crime. The modified instruction conformed to the statutory offense but varied from the charges in the indictment. The evidence overwhelmingly supported conviction on the reformulated charges, and the jury found Muresanu guilty on all counts. The judge imposed a prison sentence of 34 months on count one and the mandatory 24-month sentence on each of the three identity-theft counts, consecutive to count one but concurrent to the other identity-theft counts.

Muresanu raises two challenges to the identity-theft convictions. First, he argues that the defect in the indictment— its failure to charge an actual federal offense—deprived the court of jurisdiction over these counts. Second, he argues that the judge’s “cure” for the defect—instructing the jury on the completed crime rather than an attempt—violated his Fifth Amendment right to be tried only on charges contained in the grand jury’s indictment. He also challenges his sentence on count one for possession of counterfeit access devices.

We affirm in part and reverse in part. The judge correctly applied the Sentencing Guidelines to count one, so that challenge fails. Counts two through four are another matter. Defects in the indictment are not jurisdictional, United States v. Cotton, 535 U.S. 625, 631 (2002), and under Rule 12(b)(3) they must be raised by pretrial motion, as the judge correctly recognized. But the modification of the jury instructions led the jury to convict Muresanu of crimes not charged by the grand jury, violating his Fifth Amendment right to be tried only on charges brought by indictment. That category of error is per se reversible. Stirone v. United States, 361 U.S. 212, 217 (1960). We have no choice but to vacate the judgment on counts two through four and remand for resentencing on count one alone.

Affirmed in part. Reversed in part.

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7th Circuit Court of Appeals

Case Name: Donald W. Bauer, et al. v. Kimberly G. Koester, et al.

Case No.: 19-1786

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

Focus: Foreclosure – Damages

This appeal arises out of Illinois foreclosure proceedings on real estate owned by Donald and Lauretta Bauer. Even though they were able to redeem their property, the Bauers and two of their children, Karla and David (collectively, “the Bauers”), believe they were harmed by the proceedings and now seek damages under 42 U.S.C. § 1983. The Bauers named as defendants many of the people and entities involved in the foreclosure: Donald and Lauretta’s attorneys, the attorneys for the foreclosing plaintiffs, the bank that maintained an escrow account at issue and its employees, the state-court clerk and deputy clerks, and the judge who presided over the foreclosure proceedings. The district court dismissed the Bauers’ suit as barred by the Rooker-Feldman doctrine. See D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fid. Tr. Co., 263 U.S. 413 (1923). Because the district court properly applied that doctrine, we affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Daniela E. Guerra Rocha, et al., v. William P. Barr

Case No.: 18-3471

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

Focus: Immigration – Removal Order

Daniela Guerra Rocha has filed a petition for review of a decision of the Board of Immigration Appeals (BIA or Board). The BIA held that Guerra Rocha and her sons are subject to removal from the United States, despite the fact that she has made a prima facie showing of eligibility for nonimmigrant visa status. Because the BIA failed to render a reasoned decision that accords with its precedents, we grant Guerra Rocha’s petition and remand for further proceedings.

Petition granted, cause remanded.

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7th Circuit Court of Appeals

Case Name: Ralph Oliver, et al. v. United States of America

Case No.: 17-2880; 17-2902

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

Focus: Plea & Sentencing – Collateral-attack Waivers

In 2011, petitioners Ralph Oliver and Ryan Ross pleaded guilty to violating 18 U.S.C. § 924(c) for brandishing a firearm during a “crime of violence”—theft from a federally licensed firearms dealer, 18 U.S.C. § 922(u). In 2016, both filed motions under 28 U.S.C. § 2255 to vacate their § 924(c) convictions. They argued that, after United States v. Davis, 139 S. Ct. 2319 (2019), a violation of § 922(u) no longer counts as a crime of violence. The district court denied relief. We affirm. Express collateral-attack waivers in Oliver and Ross’s plea agreements are valid and bar their challenges to their convictions and sentences.

Affirmed

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7th Circuit Court of Appeals

Case Name: Leonard Thomas v. Nicholas P. Wardell, et al.

Case No.: 17-2582

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

Focus: Abuse of Discretion – Ineffective Assistance of Counsel

Indiana inmate Leonard Thomas sued state correctional officials, alleging deficient health care, inadequate conditions of confinement, and that officers treated him with excessive force. The district court found Thomas’s pro se complaint deficient and gave him opportunities to remedy its problems but ultimately dismissed his case for failure to prosecute. The court also denied three requests by Thomas for appointed counsel.

Because Thomas made reasonable attempts to obtain counsel and the district court did not assess whether Thomas appeared competent to litigate the case given its difficulty, we conclude the district court abused its discretion by denying Thomas’s requests to appoint counsel. This outcome prejudiced Thomas, so we reverse and remand for an attorney to be appointed for him. The district court also provided insufficient grounds on which to dismiss Thomas’s case for failure to prosecute. Therefore we also vacate the dismissal of Thomas’s case, reinstate it, and remand the case to proceed.

Reversed and remanded in part. Vacated, reinstated and remanded in part.

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7th Circuit Court of Appeals

Case Name: Marion Healthcare, LLC, et al. v. Becton Dickinson & Company, et al.

Case No.: 18-3735

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

Focus: Anti-trust Violation

Since the Supreme Court’s decision in Illinois Brick v. Illinois, 431 U.S. 720 (1977), only those buyers who purchased products directly from the antitrust violator have a claim against that party for treble damages. “Indirect purchasers” who paid too much for a product because cartel or monopoly overcharges were passed on to them by middlemen must take their lumps and hope that the market will eventually sort everything out. See, e.g., Sharif Pharm., Inc. v. Prime Therapeutics, LLC, Nos. 18-2725 and 18-3003, 2020 WL 881267 at *2 (7th Cir. Feb. 24, 2020). Matters are different, however, when a monopolist enters into a conspiracy with its distributors. In such cases, “the first buyer from a conspirator is the right party to sue.” Paper Sys. Inc. v. Nippon Paper Indus. Co., 281 F.3d 629, 631 (7th Cir. 2002).

The plaintiffs in this case (“the Providers”) are healthcare companies that purchased medical devices manufactured by Becton Dickinson & Company. Healthcare providers often do not purchase medical devices directly from the manufacturer; instead, they join a group purchasing organization, known in the trade as a GPO. The GPO negotiates prices with the manufacturer on behalf of its members. It then presents the terms to the provider, which has the opportunity to accept them or reject them. If the provider agrees to the terms, it chooses a distributor to deliver the product. The distributor then enters into contracts with the healthcare provider and the manufacturer. These contracts obligate the distributor to procure the products from the manufacturer and to sell them to the provider. The distribution contracts with the providers incorporate the price and other terms of the agreements that the GPO negotiated, plus a markup for the chosen distributor.

Our Providers purchased medical devices in the manner just described. A GPO negotiated with Becton on the Providers’ behalf, and a distributor delivered the devices. Had Becton acted alone, selling its products to an independent distributor, which then sold them to a healthcare provider, no one doubts that the Illinois Brick rule would bar the provider from suing Becton for any alleged monopoly overcharges. But these transactions were more complex. The Providers allege that Becton, the GPOs, and the distributors (to whom we refer collectively as Becton unless the context requires otherwise) joined forces in a conspiracy and engaged in a variety of anticompetitive measures, including exclusive-dealing and penalty provisions. Becton moved to dismiss, arguing that the Illinois Brick rule barred the case despite the Providers’ allegations of conspiracy.

The district court agreed with Becton that the Illinois Brick rule applied on these facts and that dismissal was therefore required. It found the conspiracy rule inapplicable not because of any failure to plead conspiracy adequately, but because this case did not involve simple vertical price-fixing. This, we conclude, was in error. At the same time, we conclude that as of now the Providers have failed adequately to allege the necessary conspiracy with the distributors, and perhaps with the GPOs. Because the district court’s ruling depended so heavily on an error of law relating to Illinois Brick, we have decided to vacate the court’s decision and remand for further proceedings.

Vacated and remanded

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7th Circuit Court of Appeals

Case Name: Sugarloaf Fund, LLC, et al. v. Commissioner of Internal Revenue

Case No.: 19-2468

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

Focus: Court Error – Tax – Income-allocation

Before us for a third time is a tax shelter designed by attorney John Rogers that the Tax Court has determined is an abusive sham. We reached the same conclusion in our prior opinions in Superior Trading, LLC v. Com‐ missioner, 728 F.3d 676 (7th Cir. 2013), and Sugarloaf Fund, LLC v. Commissioner, 911 F.3d 854 (7th Cir. 2018). We do so again here in an appeal focusing on different tax years.

Rather than fill the Federal Reporter with what we said in Superior Trading and Sugarloaf I, we assume familiarity with those decisions. Both opinions describe the scheme Rogers designed and implemented to generate artificial but tax‐deductible losses for high‐income U.S. taxpayers. Suffice it to say that the scheme worked through a partnership’s acquisition and subsequent transfer of highly distressed or uncollectible ac‐ counts receivable from retailers located in Brazil. The point of the transfers was to convey interests in the receivables—assets with meaningful face value but no economic value in the hands of the Brazilian retailers—to U.S. taxpayers, who then deem them uncollectible and use the concocted loss to reduce their tax liability.

Rogers contests the Tax Court’s determination that all of Sugarloaf’s income for 2006, 2007, and 2008 should be allocated to Jetstream, an entity wholly owned by Rogers that served as Sugarloaf’s tax matters partner. We see no reason to upset that determination, especially given the overwhelming evidence supporting the Tax Court’s conclusion that Sugarloaf remained a sham partnership throughout the tax years in question in this appeal. The upshot of the Tax Court’s income‐allocation determination is that Sugarloaf’s income ultimately becomes allocated to Rogers, the individual who controlled the partnership for all intents and purposes. Here, too, we see no error (factual or legal) in that de‐ termination by the Tax Court.

Rogers advances a host of other arguments in his briefs. He urges us, for example, to set aside the Tax Court’s findings that certain investor deposits to the trusts constitute income to Sugarloaf and that the partnership cannot deduct certain putative operating expenses. We construe Rogers’s arguments not so much as rooted in alleged legal errors by the Tax Court, but rather as challenges to specific findings of fact that provided the foundation for the Tax Court’s ultimate legal conclusions. In light of our opinions in Superior Trading and Sugarloaf I, we see little value in a detailed articulation of why the Tax Court’s various findings of fact reflect no clear error. Nor does our fresh look at the Tax Court’s opinion reveal any legal errors affecting the 2006, 2007, and 2008 tax years.

Only one further point warrants underscoring. The Internal Revenue Service, Tax Court, and now our court have devoted substantial resources over multiple proceedings to deciphering foreign and domestic transactions, understanding complex tax structures, and separating the fair from the fraud. None of this has gone well for Rogers or his partnership, the Sugarloaf Fund. While we cannot control any party’s litigation choices, we can sound caution to those who persist in pressing claims lacking any merit. The time has come to do so here, and we AFFIRM.

Affirmed

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7th Circuit Court of Appeals

Case Name: Carlos Alvarez-Espino v. William P. Barr

Case No.: 19-2289

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

Focus: Ineffective Assistance of Counsel

Carlos Alvarez-Espino entered the United States illegally in 1996, settled in Chicago, but later ran into legal trouble and came to the attention of immigration enforcement. During his time here, Alvarez-Espino assisted law enforcement by helping to solve a 2002 gas station robbery in which he was held at gunpoint. Helping the police made Alvarez-Espino potentially eligible for a U visa, which could allow him to stay in the United States. He hired immigration counsel, but his lawyer failed to realize that Alvarez-Espino had a chance at receiving a U visa and instead pursued another remedy without success. Alvarez-Espino changed lawyers, but it was too late to reverse course. After protracted proceedings, the Board of Immigration Appeals denied multiple requests for relief, leaving Alvarez-Espino at risk of removal and having to await a decision on his U visa application from Mexico.

In denying relief, the Board held Alvarez-Espino to an unduly demanding burden on his allegation of ineffective assistance of counsel. But the law is equally clear that Alvarez-Espino’s ability to continue pursuing a U visa means that he cannot show prejudice from his attorney’s performance. So we are left to deny his petition for review.

Petition denied

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7th Circuit Court of Appeals

Case Name: Ronald Crosby v. City of Chicago, et al.

Case No.: 18-3693; 19-1439

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

Focus: Settlement Agreement – Release – Costs

This case is about the scope of a release in a settlement agreement. In 2015, Ronald Crosby settled a lawsuit against Eduardo Gonzalez, a Chicago police officer who allegedly shoved Crosby out of a third-floor window before arresting him. In the settlement stipulation, Crosby released “all claims he had, has, or may have in the future … arising either directly or indirectly out of the incident” against Gonzalez, the City of Chicago, and all future, current, or former City officers. Crosby insists that this release does not bar his new suit against the City and its officers for torts they committed in the course of covering up Gonzalez’s misconduct. We disagree. There is one final matter: costs. Crosby argues that the district court should not have permitted the City to recover the costs that it incurred in procuring court transcripts of Crosby’s state criminal proceedings. As Crosby sees it, the defendants failed to show that their requested costs were reasonable under Rule 54(d). The district court’s judgment and award of costs are AFFIRMED.

Affirmed

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7th Circuit Court of Appeals

Case Name: Marshall Spiegel v. Michael C. Kim

Case No.: 18-2449

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

Focus: FDCPA Violation

For over four years, Marshall Spiegel and Michael Kim have been embroiled in a blazing and bitter dispute in the Circuit Court of Cook County, Illinois. Before us is one piece of this angry and protracted wrangle— one that arose when Kim requested attorneys’ fees in the state court litigation. Spiegel took to federal court to allege that this run-of-the-mill request violated the Fair Debt Collection Practices Act, a federal statute that prohibits misleading and unfair practices in the collection of consumer debts. The district court dismissed Spiegel’s complaint, and we affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Wendy B. Dolin v. GlaxoSmithKline LLC,

Case No.: 19-2547

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

Focus: Court Error – Sanctions

This appeal presents two questions: first, whether we should reopen our court’s prior judgment in this case, see Dolin v. GlaxoSmithKline LLC, 901 F.3d 803 (7th Cir. 2018) (“Dolin I”), and second, whether we should impose sanctions against appellant Wendy Dolin or her counsel for pursuing this appeal. Our decisions are not to reopen the judgment and not to impose sanctions on Mrs. Dolin or her counsel. The district court’s denial of relief under Federal Rule of Civil Procedure 60(b)(6) is AFFIRMED. Appellee GlaxoSmithKline’s motion for fees and costs under Federal Rule of Appellate Procedure 38 is DENIED.

Affirmed in part. Denied in part.

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7th Circuit Court of Appeals

Case Name: Robert Lee Holleman v. Dushan Zatecky, et al.

Case No.: 19-1326

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

Focus: Qualified Immunity

Robert Holleman is the quintessential jailhouse lawyer, and he has achieved notable success in that role. Through prior lawsuits he has been awarded thousands of dollars in damages. In late 2015, in response to Holleman’s multitudinous lawsuits, grievances, and an interview he provided to a local newspaper, the superintendent of Pendleton Correctional Facility transferred Holleman to another prison. The question for us today is whether that transfer violated Holleman’s clearly established right to be free from retaliation for protected First Amendment activity, such that his suit can overcome qualified immunity. We hold it did not.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. James A. Simon

Case No.: 19-1317

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

Focus: Restitution Award

James Simon appeals the district court’s decision denying his motions to reconsider amendments to his restitution obligations. See United States v. Simon, 2019 WL 422447 (N.D. Ind. Feb. 4, 2019). We conclude that the majority of the challenges Simon is making could and should have been raised at sentencing and on direct appeal from his conviction and were therefore waived; as to the remainder, his appeal is untimely. We therefore affirm the judgment.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: Randy Lee Smith v. Catherine Marie Smith

Case No.: 2018AP1697

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

Focus: Divorce – Marital Settlement Agreement

Randy Smith, who is divorced from his former wife Catherine, appeals a postdivorce order clarifying the parties’ financial positions and obligations pursuant to a marital settlement agreement (MSA) that had been incorporated into the divorce judgment. The MSA contemplated that the parties’ home would be sold, but the sale was not completed until nearly two years after the divorce was finalized. In the interim, and contrary to an expectation stated in the MSA, Catherine had moved out of the home. Additionally, the parties had continued using the marital credit cards and each took an unanticipated $30,000 payment from the proceeds of the sale of the home, thereby reducing the funds available to be distributed pursuant to the MSA.

Randy argues the circuit court erred by failing to give effect to certain MSA provisions, by refusing to order that the parties be reimbursed for their minimum payments to the credit cards, by offsetting the reimbursable amount of his mortgage and home equity payments by one-half of the cost of Catherine’s rent during the relevant time period, and by setting the terms of repayment for the remaining amount owed to Catherine under the MSA. We conclude the circuit court properly exercised its discretion in these matters. Consequently, we affirm.

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WI Court of Appeals – District III

Case Name: Bernard C. Seidling a/k/a FLP PT Enterprises v. Patricia Lewis, et al.

Case No.: 2018AP2303

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

Focus: Attorney Fees

Bernard Seidling appeals a judgment awarding money damages to Mark and Paula Woychik. The damages resulted from the Woychiks’ counterclaim against Seidling for engaging in an intentional scheme to deprive them of rights in a real estate transaction. Seidling argues, for several reasons, that the circuit court erred by granting the Woychiks default judgment on their counterclaim, which the Woychiks filed in response to Seidling’s claim that the Woychiks slandered him in an Internet blog post.

We reject Seidling’s arguments and affirm the judgment. Nonetheless, we reject the Woychiks’ assertion that Seidling’s entire appeal is frivolous, and we therefore deny their motion for an award of attorney fees and costs associated with this appeal.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Tamio T. Shipman-Allen

Case No.: 2019AP267-CR

Officials: Dugan, Fitzpatrick and Donald, JJ.

Focus: Plea Withdrawal

Tamio T. Shipman-Allen appeals the judgment of conviction following his guilty pleas to one count of second-degree reckless homicide; one count of child abuse by recklessly causing great bodily harm to a child; and one count of child neglect resulting in bodily harm to a child. He also appeals the order denying his postconviction motion.

Shipman-Allen argues that, because his postconviction motion alleged facts that, if true, would have entitled him to withdraw his guilty pleas, due to ineffective assistance of trial counsel, the trial court erred in denying his motion without an evidentiary hearing. We conclude that Shipman-Allen’s conclusory allegation of prejudice was insufficient to entitle him to an evidentiary hearing and, therefore, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Albert R. Moss

Case No.: 2019AP331

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

Focus: Ineffective Assistance of Counsel

Albert R. Moss, pro se, appeals from an order denying his WIS. STAT. § 974.06 (2017-18) motion regarding his conviction for felony murder. Moss argues that his request for a second continuance during his jury trial was improperly denied, and that he was denied substitution of counsel as a result.

Additionally, Moss raises a claim of ineffective assistance of counsel relating to two issues. First, he argues that the prosecutor improperly vouched for his co-actor’s credibility, and that his trial counsel was ineffective for failing to object. His second issue relates to an instruction by the trial court that the parties had stipulated to the qualifications of the expert testifying about the victim’s cause of death. Moss asserts that the instruction was improper in that it instructed the jury that the causation element of felony murder was proven, and that his trial counsel was ineffective for not objecting to that as well. The postconviction court rejected Moss’s arguments. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Lance L. Black

Case No.: 2019AP592-CR

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

Focus: Court Error – Abuse of Discretion

Lance L. Black appeals the judgment of conviction, following a jury trial, of one count of being a felon in possession of a firearm and one count of possession of THC, with a dangerous weapon penalty enhancer, as a second or subsequent offense.  On appeal Black contends that the trial court erroneously exercised its discretion by “prejudg[ing]” Black’s competency when it found Black competent to stand trial. Specifically, Black contends that prior to his competency evaluation, the trial court indicated that it was not inclined to delay the trial because of Black’s behavior and therefore had implicitly already decided the issue of Black’s competency. As support for his argument, Black contends that the trial court disregarded Dr. Collins’s testimony, which was the only evidence of Black’s state of mind. Although we acknowledge Black’s concern, we conclude that the trial court did not “prejudge” Black’s competency and properly exercised its discretion. We affirm.

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WI Court of Appeals – District I

Case Name: Southwest Airlines Co., et al. v. State of Wisconsin Department of Revenue

Case No.: 2019AP818

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

Focus: Property Tax Exemption

Southwest Airlines Company and AirTran Airways, Inc. (collectively, “the Airlines”) appeal the order of the trial court granting the motion for summary judgment of the Department of Revenue (“DOR”) and denying the Airlines’ motion for summary judgment. The Airlines had filed the underlying action against the DOR seeking adjustments on their 2013 and 2014 property assessments—and, as such, refunds on the amounts they paid in property taxes— based on their assertion that they qualified for the “hub facility” exemption during those tax periods.

In granting the DOR’s motion, the trial court found that it was an undisputed material fact that the Airlines did not meet the statutory requirements of a hub facility in either of those tax periods. We agree and affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Jill M. Jazdzewski

Case No.: 2018AP848-CR

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

Focus: Abuse of Discretion – Sentencing Guidelines

Jill Jazdzewski appeals a judgment of conviction and an order denying her motion for postconviction relief. The issue is whether the sentencing judge was objectively biased due to his own past experience in a fatal accident. We affirm.

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WI Court of Appeals – District IV

Case Name: Wolf Appliance, Inc., v. American Range Corporation

Case No.: 2018AP2092

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

Focus: Summary Judgment – Issue of Material Fact

The circuit court granted Wolf Appliance, Inc.’s motion for summary judgment on its breach of contract claim against American Range Corporation and denied American Range’s summary judgment motion seeking dismissal of that claim. Specifically, the court ruled that the undisputed material facts could only support the conclusion that an American Range brochure violated a 2013 settlement agreement between the parties. On appeal, American Range argues that the undisputed material facts direct the contrary conclusion, or, alternatively, that issues of material fact preclude summary judgment. As we explain, we conclude that issues of material fact, specifically competing reasonable inferences as to certain images in the brochure, preclude summary judgment. Accordingly, we reverse and remand for further proceedings.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Trevor J. Ahrens

Case No.: 2018AP2334-CR

Officials: Blanchard, Graham and Nashold, JJ.

Focus: Court Error – Forfeiture Rule

Trevor Ahrens appeals a judgment of conviction. The dispositive issue is whether he forfeited his argument that the circuit court violated his right to a public trial by excluding his mother from the courtroom. We conclude that Ahrens forfeited the issue, and we affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. T.E.-B.

Case No.: 2019AP309

Officials: KLOPPENBURG, J.

Focus: Sufficiency of Evidence

After a trial to the circuit court, the court found T.E.-B. delinquent for the commission of one act of first-degree sexual assault, sexual contact with a child under the age of thirteen. T.E.-B. contends that the evidence was insufficient to support the finding that he committed the offense on the date stated in the delinquency petition. Because, consistent with the applicable legal standards, the record establishes to the contrary, I affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Richard A. Boie

Case No.: 2019AP520-CR

Officials: Blanchard, Graham, and Nashold, JJ.

Focus: Ineffective Assistance of Counsel

Richard Boie appeals a judgment of conviction for repeated sexual assault of the same child (including at least 3 violations of first degree child sexual assault) in violation of WIS. STAT. § 948.025(1)(d) (2017-18). 1 He also appeals the circuit court order denying his postconviction motion for a new trial. Boie argues that the circuit court erroneously exercised its discretion in granting the State’s motion, made pursuant to WIS. STAT. § 908.08, to admit at trial a video recording of a statement given by the victim, B.H. Specifically, Boie contends that the court failed to make two findings required for admission. We conclude that the circuit court implicitly made these findings.

Separately, Boie argues that his trial counsel provided ineffective assistance by failing to move for a mistrial after B.H. testified multiple times during in-person trial testimony that she could not remember the sexual assaults or details regarding the assaults. Boie argues that counsel had three valid grounds to request a mistrial, all based on B.H.’s lack-of-memory responses during her inperson testimony: (1) the responses violated the specific requirement in WIS. STAT. § 908.08(3)(e) that the circuit court find that admission of a recording will not deprive the defendant “of a fair opportunity to meet allegations made in the statement”; (2) the responses violated Boie’s constitutional right to confront B.H as a trial witness; and (3) it was “evident” from the responses that the prosecution had “likely failed to disclose” to the circuit court, before the court decided the recording admissibility issue, that the prosecution was aware that B.H. “lacked memory of the alleged assaults.” We conclude that trial counsel did not perform deficiently in failing to move for mistrial because: (1) § 908.08(3)(e) is exclusively an admissibility standard; (2) there was no Confrontation Clause violation under the reasoning of State v. Rockette, 2006 WI App 103, 294 Wis. 2d 611, 718 N.W.2d 269, and United States Supreme Court precedent discussed in Rockette; and (3) Boie fails to identify a valid basis for a mistrial based on an “evident” lack of disclosure that the prosecution had been obligated to provide. Accordingly, we affirm.

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WI Court of Appeals – District IV

Case Name: Jefferson County v. M.P.

Case No.: 2019AP2229-FT

Officials: BLANCHARD, J.

Focus: Prisoner – Involuntary Commitment

M.P. appeals an order of the circuit court extending her mental health commitment by 12 months under WIS. STAT. ch. 51 and authorizing continued outpatient care with conditions that include involuntary medication as necessary. M.P. does not dispute that Jefferson County proved by clear and convincing evidence that she is mentally ill and a proper subject for treatment. See Portage Cty. v. J.W.K., 2019 WI 54, ¶18, 386 Wis. 2d 672, 927 N.W.2d 509 (citing WIS. STAT. § 51.20(1)(a), (am)) (petitioner seeking recommitment must prove by clear and convincing evidence, first, that the individual is mentally ill and a proper subject for treatment and, second, that the individual is dangerous). M.P.’s argument is that Jefferson County failed to prove by clear and convincing evidence that she is dangerous. I conclude that the County met its burden of proof and accordingly affirm.

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WI Supreme Court Digests

WI Supreme Court

Case Name: State of Wisconsin v. Alexander M. Schultz

Case No.: 2020 WI 24

Focus: Double Jeopardy

The State charged Alexander M. Schultz with repeated sexual assault of a child for engaging in sexual intercourse with the fifteen-year-old victim, M.T., in “late summer to early fall of 2012.” A jury acquitted him of this charge. Shortly thereafter, paternity test results revealed Schultz to be the father of M.T.’s child. The State then charged Schultz with sexual assault of a child under 16 years of age occurring “on or about October 19, 2012,” the date M.T.’s obstetrician determined the child was conceived. We review whether the State exposed Schultz to multiple prosecutions for the same offense in violation of the Double Jeopardy Clauses of the United States and Wisconsin Constitutions. Schultz asks us to consider whether a court may ascertain the scope of jeopardy in the first prosecution based upon trial testimony, as well as to determine who bears the burden resulting from any ambiguity in the timeframe of a charging document——the defendant or the State.

We hold that a court may examine the entire record of the first proceeding, including the evidence admitted at trial, when determining the scope of jeopardy in a prior criminal prosecution. Because the complaint incorporated the police report, which documents a certain end date for the intercourse, and the evidence presented at Schultz’s first trial did not encompass the same timeframe of the offense charged in his second prosecution, we conclude that Schultz was not twice in jeopardy for the same criminal offense. Specifically, the State’s second prosecution of Schultz for sexual assault of a child under 16 “on or about October 19, 2012,” did not include the same timeframe as its first prosecution for repeated sexual assault of a child in the “late summer to early fall of 2012.” We affirm the court of appeals.

Affirmed

Concur:

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

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WI Supreme Court

Case Name: Antoinette Lang, et al. v. Lions Club of Cudahy Wisconsin, Inc.

Case No.: 2020 WI 25

Focus: Summary Judgment – Issue of Material Fact

We review a decision of the court of appeals reversing an order of the circuit court that granted summary judgment in favor of Fryed Audio, LLC on the ground that it was entitled to recreational immunity pursuant to Wis. Stat. § 895.52(2) (2017–18).3 Fryed Audio is a member of Rhythm Method, LLC, with whom the Lions Club of Cudahy Wisconsin, Inc. contracted to provide music for its 2012 festival at a Milwaukee County park. The sole member of Fryed Audio, Steven Fry, laid Rhythm Method’s electronic and electric cords on the floor of the music tent for the Lions Club event. Antoinette Lang allegedly tripped on a cord, which led to this lawsuit.

Because the Lions Club is a statutory owner pursuant to Wis. Stat. § 895.52(1)(d)1., Fryed Audio moved for summary judgment citing § 895.52(2), which provides that agents of owners have immunity from claims by those who enter land of a statutory owner to engage in recreational activity. The circuit court concluded that Fryed Audio was an agent of the Lions Club and therefore entitled to recreational immunity. The court of appeals reversed, reasoning that the Lions Club lacked the right to control Fryed Audio.

We conclude that there are no issues of material fact in regard to the Lions Club’s right to control Fryed Audio in regard to laying the cords for Rhythm Method’s amplified sound and that Fryed Audio was an agent of the Lions Club who lawfully acted through its subagent, Steven Fry. Because the Lions Club was a statutory owner, Fryed Audio, as its agent, is entitled immunity pursuant to Wis. Stat. § 895.52(2). Accordingly, we reverse the court of appeals.

Reversed

Concur: ROGGENSACK, C.J., announced the mandate of the Court, and delivered an opinion, in which ZIEGLER, J., joined. REBECCA GRASSL BRADLEY, J., filed a concurring opinion, in which KELLY, J., joined.

Dissent: DALLET, J., filed a dissenting opinion, in which ANN WALSH BRADLEY, J., joined. HAGEDORN, J., filed a dissenting opinion.

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WI Supreme Court

Case Name: State of Wisconsin v. Kelly James Kloss

Case No.: 2020 WI 26

Focus: Appeals Review – Dismissal  

Kelly Kloss and the State cross-petitioned for review of the decision of the court of appeals, State v. Kloss, 2019 WI App 13, 386 Wis. 2d 314, 925 N.W.2d 563. After reviewing the record and the briefs of both parties, and after hearing oral arguments, we conclude this matter should be dismissed as improvidently granted.

Dismissed and improvidently granted.

Concur:

Dissent:

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Supreme Court Digests

United States Supreme Court

Case Name: Kansas v. Ramiro Garcia, et al.

Case No.: 17-834

Focus: Statutory Interpretation – Implied Preemption – Supremacy Clause

Kansas makes it a crime to commit “identity theft” or engage in fraud to obtain a benefit. Respondents, three unauthorized aliens, were tried for fraudulently using another person’s Social Security number on the W–4’s and K–4’s that they submitted upon obtaining employment. They had used the same Social Security numbers on their I–9 forms. Respondents were convicted, and the Kansas Court of Appeals affirmed. A divided Kansas Supreme Court reversed, concluding that §1324a(b)(5) expressly prohibits a State from using any information contained within an I–9 as the basis for a state law identity theft prosecution of an alien who uses another’s Social Security information in an I–9. The court deemed irrelevant the fact that this information was also included in the W–4 and K–4. One justice concurred based on implied preemption.

The Kansas statutes under which respondents were convicted are not expressly preempted. IRCA’s express preemption provision applies only to employers and those who recruit or refer prospective employees and is thus plainly inapplicable. . Respondents’ argument that Kansas’s laws are preempted by implication is also rejected. Pp. 15–20. (a) The laws do not fall into a field that is implicitly reserved exclusively for federal regulation, including respondents’ claimed field of “fraud on the federal verification system.” The submission of tax withholding forms is neither part of, nor “related” to, the verification system. Federal law does not create a comprehensive and unified system regarding the information that a State may require employees to provide.

There is likewise no ground for holding that the Kansas statutes at issue conflict with federal law. In the present cases, there is certainly no suggestion that the Kansas prosecutions frustrated any federal interests. Federal authorities played a role in all three cases, and the Federal Government fully supports Kansas’s position in this Court. In the end, however, the possibility that federal enforcement priorities might be upset is not enough to provide a basis for preemption. The Supremacy Clause gives priority to “the Laws of the United States,” not the criminal law enforcement priorities or preferences of federal officers. Art. VI, cl. 2. Pp. 18–20.

Reversed and remanded

Dissenting: BREYER, J., filed an opinion concurring in part and dissenting in part, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined.

Concurring: THOMAS, J., filed a concurring opinion, in which GORSUCH, J., joined. BREYER, J., filed an opinion concurring in part and dissenting in part, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined.

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