Weekly Case Digests – August 10, 2020 – August 14, 2020

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Aishef Shaffer v. Jacqueline Lashbrook, et al.,

Case No.: 19-1372

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

Focus: Abuse of Discretion – Post-judgment Motion Denied

Aishef Shaffer, while an Illinois state inmate, sued prison officials for alleged violations of his constitutional rights. But when he was released on parole, he did not notify the court of his new address or respond to the defendants’ motions or discovery requests. And after more than seven months of silence from Shaffer, the district court dismissed his case for failure to prosecute.

When Shaffer returned to prison a month later, he renewed his interest in his lawsuit and moved unsuccessfully to reopen the case. He now appeals the district court’s denial of his post-judgment motion. Because the court acted within its discretion in denying the motion, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. David L. Shanks, Jr.,

Case No.: 18-3628

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

Focus: Federal Rules of Criminal Procedure Violation – Rule 43

David L. Shanks, Jr. did not attend his trial for drug-distribution offenses, for which a jury found him guilty and the district court entered a judgment of conviction.

Shanks challenges the judgment on two bases. First, he contends that the district court did not comply with Rule 43 of the Federal Rules of Criminal Procedure, which he argues requires a defendant’s presence in a courtroom at the start of trial. Shanks’s trial began before the judge and counsel at a jail, not in a courtroom. Second, he argues that the court clearly erred in finding that, through his disruptive conduct, he knowingly and voluntarily waived his right to attend trial. Because the district court permissibly began trial at the jail and reasonably found that Shanks waived his right to attend the remainder of his trial, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Elim Romanian Pentecostal Church, et al., v. Jay Robert Pritzker

Case No.: 20-1811

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

Focus: 1^st Amendment Violation

Two churches contend, in this suit under 42 U.S.C. §1983, that an executive order limiting the size of public assemblies (including religious services) to ten persons violates their rights under the Free Exercise Clause of the First Amendment, applied to the states by the Fourteenth Amendment. The Governor of Illinois issued this order to reduce transmission of the coronavirus SARS-CoV-2, which causes the disease COVID-19. The disease is readily transmissible and has caused a global pandemic. As of June 16, 2020, 133,639 persons in Illinois have tested positive for COVID-19, and 6,398 of these have died. Epidemiologists believe that those numbers are undercounts—persons with no or mild symptoms may not be tested, some people die of the disease without being tested, and some deaths attributed to other causes may have been hastened or facilitated by the effect of COVID-19 weakening the immune system or particular organs.

Experts think that, without controls, each infected person will infect two to three others, causing an exponential growth in the number of cases. Because many of those cases require intensive medical care, infections could overwhelm the medical system. The World Health Organization, the Centers for Disease Control, and many epidemiologists recommend limiting the maximum size of gatherings (the Governor’s cap of ten comes from a CDC recommendation), adopting a policy of social distancing (everyone staying at least six feet away from anyone not living in the same household—ten feet if the other person is singing or talking loudly), isolating people who have the disease, wearing face coverings so that people who have the disease but don’t know it are less likely to infect others, and tracing the contacts of those who test positive. Reducing the number of people at gatherings protects those persons, and perhaps more important it protects others not at the gathering from disease transmitted by persons who contract COVID-19 by attending a gathering that includes infected persons.

So we do not deny that warehouse workers and people who assist the poor or elderly may be at much the same risk as people who gather for large, in-person religious worship. Still, movies and concerts seem a better comparison group, and by that standard the discrimination has been in favor of religion. While all theaters and concert halls in Illinois have been closed since mid-March, sanctuaries and other houses of worship were open, though to smaller gatherings. And under Executive Order 2020-38 all arrangements for worship are permitted while schools, theaters, and auditoriums remain closed. Illinois has not discriminated against religion and so has not violated the First Amendment, as Smith understands the constitutional requirements. Plaintiffs present some additional arguments, which have been considered but need not be discussed separately.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Franco Damian Ferreyra v. William P. Barr

Case No.: 18-3021; 19-2055

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

Focus: Immigration – Removal Order

Franco Damian Ferreyra, a citizen of Argentina, seeks review of an order of the Board of Immigration Appeals mandating his removal from the United States. The Board upheld the validity of a waiver, signed upon Mr. Ferreyra’s entry into the United States, that prevents Mr. Ferreyra from contesting removal for reasons other than persecution and torture. The Board determined that Mr. Ferreyra was ineligible for relief on either of those grounds, and that, given the waiver, it could not consider his requests for cancellation of removal based on family hardship.

We conclude that the record supports the Board’s determination that Mr. Ferreyra did not present a case warranting relief because of a credible fear of persecution or torture. We further conclude that the Board correctly held that the waiver is valid and that Mr. Ferreyra therefore cannot present a claim for cancellation of removal based on family hardship. Accordingly, we deny the petition for review.

Petition Denied

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7^th Circuit Court of Appeals

Case Name: Elijah Reid v. Marc Balota

Case No.: 19-1396

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

Focus: Prisoner – Exhaustion of Administration Remedies

Elijah Reid, an inmate in the Illinois prison system, brought this action under 42 U.S.C. § 1983 against a correctional officer. He alleged that the officer used excessive force against him in violation of the Eighth Amendment of the Constitution of the United States as made applicable to the States by the Fourteenth Amendment. The district court dismissed the action, concluding that Mr. Reid had not exhausted the prison’s administrative remedies before filing the lawsuit, as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). We now conclude that the prison’s communications were so obscure that they made further steps of its administrative process unknowable and, thus, unavailable to Mr. Reid. We therefore vacate the judgment of the district court and remand the case for further proceedings consistent with this opinion.

Vacated and remanded

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7^th Circuit Court of Appeals

Case Name: United States of America v. Napoleon Jackson, et al.,

Case No.: 19-2928; 19-3153

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

Focus: Unlawful-stop Claim – Reasonable Suspicion

Does an air freshener hanging from a rearview mirror obstruct the driver’s clear view? A Chicago police officer believed that, in this case, it did. That officer pulled over Napoleon Jackson and his passenger Kittrell Freeman for violating a provision of the Chicago municipal code prohibiting any object obstructing the driver’s clear view through the windshield. Officers subsequently recovered three firearms from the vehicle and Jackson and Freeman were each charged with unlawful possession of a firearm by a felon. Jackson and Freeman moved to suppress the evidence for lack of probable cause to conduct the traffic stop based on their argument that the officer erroneously believed that there could not be anything hanging from the rearview mirror, regardless of whether it obstructed the driver’s view. The district court denied the motion, finding that an officer could reasonably conclude that the air freshener obstructed the clear view and thus supported probable cause to conduct a traffic stop. Jackson and Freeman both pleaded guilty while preserving their rights to appeal the suppression ruling.

Though the district court couched its analysis in terms of probable cause, all that is required for a traffic stop is reasonable suspicion. Even so, because the officer had an articulable and objective basis for suspecting that the air freshener obstructed Jackson’s clear view in violation of the city municipal code, the stop was lawful. The district court correctly denied the motion to suppress and we affirm the judgment.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Bradley LeDure v. Union Pacific Railroad Company

Case No.: 19-2164

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

Focus: Personal Injury – Negligence Claim 

Bradley LeDure, a conductor for Union Pacific Railroad Company, slipped and fell while preparing a locomotive for departure. LeDure brought suit for negligence against Union Pacific under the Locomotive Inspection Act and the Federal Employers’ Liability Act. The district court granted summary judgment for Union Pacific. It found the Locomotive Inspection Act inapplicable and then determined that LeDure’s injuries were otherwise unforeseeable because he slipped on a small “slick spot” unknown to Union Pacific. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Timothy B. O’Brien LLC v. David Knott, et al.,

Case No.: 19-2138

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

Focus: Attorney Fees

David Knott, an employee of Wisconsin wellness retail store Timothy B. O’Brien, LLC (“Apple Wellness”), left the company and started a similar, competing wellness shop. Apple Wellness sued Knott for trademark and copyright infringement. Knott countersued. The district court found the copyright claims baseless but commented that the trademark claims might have merit. Nonetheless, Apple Wellness later voluntarily dismissed all its claims with prejudice, and the district court declined to exercise supplemental jurisdiction over the counterclaims. All that remained was Knott’s motion for attorneys’ fees. The district court denied that motion, and Knott appeals only as to the denial of fees on the copyright claims. Because the district court’s decision denying fees was well-reasoned and appropriate, we now affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Darrius Washington

Case No.: 19-1331

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

Focus: Court Error – Admittance of Evidence

Darrius Washington was charged with unlawfully possessing a firearm as a felon after police officers saw him toss a gun into a residential yard. Before trial the government moved to admit a video posted on YouTube about three months before the arrest depicting Washington holding what prosecutors argued was the same gun. Over Washington’s objection, the district judge permitted the admission of still photos from the video but not the video itself. The jury found Washington guilty.

Washington challenges the admission of this evidence, arguing that the photos were irrelevant, inadmissible under Rule 404(b) of the Federal Rules of Evidence, and unfairly prejudicial. We disagree. As explained in United States v. Miller, evidence of recent past possession of the same gun is admissible for a nonpropensity purpose—namely, to show the defendant’s ownership and control of the charged firearm—although evidence of past possession of a different gun would raise Rule 404(b) concerns. 673 F.3d 688, 694–95 (7th Cir. 2012).

Washington notes, accurately enough, that Miller was a case about constructive possession and his case involves a charge of actual possession. That distinction doesn’t make a difference in the Rule 404(b) calculus. The judge properly admitted this evidence for a nonpropensity purpose and minimized its potential for unfair prejudice by limiting the government to still photos rather than the video itself. We affirm the judgment.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Arron Murphy v. Wexford Health Sources, Inc., et al.,

Case No.: 19-3310

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

Focus: Prisoner Medical Treatment

Arron Murphy, a former Illinois prisoner, appeals the district court’s entry of summary judgment in favor of the defendants in his suit asserting their deliberate indifference to his dental infection. Murphy’s infection—which swelled on his face to the size of a softball—ultimately required multiple surgeries. Relying on expert testimony, Murphy argues that fact questions exist concerning the prison doctor’s choice of medicine and subsequent delay in sending him to a hospital. The district court correctly concluded that the record reflects not deliberate indifference but at most a medical disagreement over the course of treatment, so we affirm the judgment.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Sherrie Baker, et al., v. Atlantic Richfield Company, et al.,

Case No.: 19-3159; 19-3160

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

Focus: Removal – Subject Matter Jurisdiction

Former residents of the West Calumet Housing Complex sued nine industrial manufacturing companies in Indiana state court. The residents allege that, for most of the twentieth century, each company directly or through a predecessor corporate entity polluted the soil in and around the site of their later-built residence. Specifically, the residents claim that the companies’ operations at these facilities contaminated the property with “lead, arsenic and likely other substances.”

Several companies removed the case to federal court under 28 U.S.C. § 1442(a)(1), asserting their right to a federal forum because the case relates to their acts under color of federal office. During World War II, the companies argue, the United States government directed them to produce certain materials for the military, supervised distribution of these goods, and controlled their ultimate usage. The residents disagreed and moved to remand the case back to state court. The district court granted that motion, holding in principle that the companies acted under color of federal office for only a portion of the time period covered by the residents’ claims. We reverse.

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: Fred Cartwright v. Silver Cross Hospital and Crothall Healthcare, Inc.,

Case No.: 19-2595

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

Focus: Discrimination – Dismissal for Want of Prosecution

Fred Cartwright sued his former employer asserting claims of discrimination based on his race, sex, and age. Throughout four years of litigation, he repeatedly failed to appear for his deposition, missed a status hearing, would not follow the local rules regarding motion practice, refused to respond to discovery despite repeated orders to do so, and ignored the judge’s multiple warnings that his conduct would lead to dismissal of the suit. Despite this obstructive behavior, the judge continued to recruit a succession of pro bono attorneys to assist Cartwright, each of whom invested many hours of valuable time in the case before moving to withdraw because the client would not cooperate. After permitting the fourth—yes, fourth—volunteer lawyer to withdraw, the judge finally dismissed the case as a sanction for want of prosecution.

We affirm the dismissal and take this opportunity to remind judges that they need not and should not recruit volunteer lawyers for civil claimants who won’t cooperate with the basic requirements of litigation. Pro bono representation of indigent civil litigants is a venerable tradition in the legal profession. The courts must be careful stewards of this limited resource.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Seaway Bank & Trust Company v. J&A Series I, LLC, Series C, et al.,

Case No.: 19-2268; 19-2425

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

Focus: Subject-matter Jurisdiction

J&A Series I, LLC, Series C (“J&A Series”), J&A Investment Group, LLC (“J&A Investment”), and Adam Ackerman (collectively “J&A Parties”) appeal from the district court’s dismissal of the petition they filed under 735 ILCS 5/2-1401. On appeal, the J&A Parties challenge the district court’s conclusion that it lacked jurisdiction over the section 2-1401 Petition. We review de novo the district court’s order dismissing the J&A Parties’ Petition for lack of subject matter jurisdiction. Miller v. F.D.I.C., 738 F.3d 836, 840 (7th Cir. 2013). We may affirm a dismissal for lack of subject matter jurisdiction on any ground supported by the record. Kowalski v. Boliker, 893 F.3d 987, 994 (7th Cir. 2018). FIRREA, which was enacted in response to the savings and loan crisis of the 1980s, facilitates the expeditious and efficient resolution of claims against failed banks. Miller, 738 F.3d at 840. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Kevin W. Schaul

Case No.: 19-1632

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

Focus: Plea Withdrawal

Kevin Schaul pleaded guilty to five counts of health care fraud in violation of 18 U.S.C. § 1347. He now challenges his conviction, submitting that his guilty plea was not knowing and voluntary because he never was informed of the elements of the offense.

The indictment gave Mr. Schaul sufficient notice of the charges. However, he was informed erroneously of the mens rea required by the statute; such an affirmative misrepresentation of the elements of the offense constitutes plain error. We conclude nevertheless that this error did not affect Mr. Schaul’s substantial rights. The record affirmatively demonstrates that he knowingly and willfully violated the law. We therefore affirm the judgment of the district court.

Affirmed

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7^th Circuit Court of Appeals

Case Name: David M. Gill, et al., v. Charles W. Scholz, et al.,

Case No.: 19-1125

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

Focus: Court Error – Illinois Election Code – 1^st & 14^th Amendment

In August 2015 David Gill launched his fifth congressional campaign. Unlike his past campaigns, Gill ran as an independent. Although Gill needed 10,754 signatures to qualify for the general ballot, he came up 2,000 short, so the Illinois State Officers Electoral Board (“SOEB”) did not permit him to appear on the general ballot for Illinois’s 13th Congressional District. Gill filed suit, claiming violations of the First and Fourteenth Amendments.

We review a district court’s grant of summary judgment de novo. Turubchuck v. Southern Ill. Asphalt Co., 958 F.3d 541, 548 (7th Cir. 2020) (citing Physicians Healthsource, Inc. v. A-S Medication Solutions, LLC, 950 F.3d 959, 964 (7th Cir. 2020)). Summary judgment is properly awarded if the movant “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED R. CIV. P. 56(a). Where, as here, both parties filed cross motions for summary judgment, all reasonable inferences are drawn in favor of the party against whom the motion was granted. See Tripp, 872 F.3d at 862.

Gill’s sole argument on appeal is that the district court erred by relying too heavily on Tripp. The facts in Tripp are similar to those in this case. The plaintiffs were two Green Party members who sought to run for state representative in Illinois’s 115th and 118th representative districts. They raised claims under the First and Fourteenth Amendments when they failed to obtain the number of signatures required by the Illinois Election Code. Id. at 859–60. After an extensive analysis of the plaintiffs’ claims and references to third-party candidates who had made it onto the general ballot in the past, this court in Tripp decided that the Illinois Election Code did not violate the First or Fourteenth Amendments. Id. at 864–72.

The district court erred by automatically concluding that the holding in Tripp controls this case instead of applying the fact-intensive analysis required by the Anderson-Burdick balancing test. The district court’s reliance on Tripp also was problematic because Tripp referenced candidates who were regulated by provisions of the Illinois Election Code different than those at issue in this case.  For these reasons we REVERSE and REMAND for the district court to apply the fact-intensive Anderson-Burdick balancing test.

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: United States of America v. Alfred L. Cross

Case No.: 18-3633

Officials: RIPPLE, ROVNER, and BRENNAN, Circuit Judges.

Focus: Plea Withdrawal

Alfred L. Cross pled guilty to five counts of bank fraud, in violation of 18 U.S.C. § 1344(1). Shortly before sentencing, he moved pro se to terminate his counsel, withdraw his guilty plea, and dismiss the case. The district court denied all three motions. He now appeals the court’s denial of his motion to withdraw his plea, and we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Ricardo A. Gomez, et al., v. Cavalry Portfolio Services, LLC, et al.,

Case No.: 19-1737

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

Focus: Declaratory and Injunctive Relief

In 2009 Ricardo and Debora Gomez stopped paying their debt on a credit card issued by Bank of America. Later that year the Bank concluded that collection was unlikely and treated the account as a bad debt; it stopped sending monthly statements. But it did not tell the Gomezes that they no longer owed the money. In 2011 it sold the debt to Cavalry SPV, which used Cavalry Portfolio Services (Cavalry) to collect. In January 2013 Cavalry sent a letter seeking payment of about $5,800, of which roughly $1,600 was interest for months after the Bank gave up billing the Gomezes. It sent another letter in March 2013 seeking $6,200.

Plaintiffs advance an argument for declaratory and injunctive relief, which they say is not under the federal statute—but they do not develop a substantive argument under any other body of law. This means that the judgment dismissing the suit must be affirmed.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Jerry J. Jones

Case No.: 19-1644

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

Focus: Sentencing Guidelines

In 1998, a federal jury convicted Jerry Jones of two car jackings, an armed bank robbery, and using firearms during those crimes of violence. The district court sentenced him to 840 months in prison. Twenty years later, the district court vacated its original sentence and ordered resentencing because Jones no longer qualified as a career offender under the federal Sentencing Guidelines.

At resentencing, Jones’s effective Guidelines range was 348–390 months. The district court deviated from the Guidelines and once again sentenced Jones to 840 months in prison. That was an increase of 450 months, approximately 215% above the high end of Jones’s Guidelines range. Jones now appeals his sentence. Because the district court did not sufficiently justify the extent of its deviation from the Guidelines, we vacate its judgment and remand for resentencing.

Vacated and remanded

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7^th Circuit Court of Appeals

Case Name: Market Street Bancshares, Inc., v. Federal Insurance Co.,

Case No.: 18-3395

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

Focus: Insurance Claim – Coverage

This is an insurance-coverage dispute between a bank and its insurer. In 2014, the two entered an agreement: in exchange for an insurance premium, the insurer, Federal Insurance Company, would defend and indemnify the bank, Peoples National Bank, against “claims” made by third parties during the policy period, which ran from April 15, 2014, to April 15, 2017. When they entered this agreement, the bank had been embroiled in an ongoing lawsuit for about a decade. During the damages phase of that lawsuit, in 2016, the plaintiffs in the case argued that the bank owed certain damages, and the bank called upon Federal Insurance to defend against the argument and to cover the bank’s corresponding losses. Federal Insurance refused, explaining in part that the damages argument was not a “claim” under the policy.

The bank then sued Federal Insurance in Illinois state court, seeking to recover losses (including defense costs) from the underlying damages argument. Federal Insurance removed the action to federal court and filed a counterclaim for declaratory relief. Both parties moved for summary judgment on the counterclaim, and the district court granted judgment in the insurer’s favor.

We affirm because the damages argument in the underlying lawsuit is not a “claim” under the parties’ insurance policy.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: Liane M. Wong v. Theodore C. Maneage, et al.,

Case No.: 2019AP8

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

Focus: Court Error – Summary Judgment

Liane Wong appeals an order that denied her motion for summary judgment, granted summary judgment in favor of Theodore and Janean Maneage (“the Maneages”), and dismissed Wong’s action with prejudice. Wong argues the circuit court erred by granting the Maneages summary judgment on Wong’s private nuisance claim. We disagree and, therefore, affirm the order.

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WI Court of Appeals – District I

Case Name: Lanarius T. Hodges v. Michael L. Chernin

Case No.: 2019AP129

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

Focus: Summary Judgment – Admissible Evidence

Lanarius T. Hodges, pro se, appeals an order of the trial court granting Michael L. Chernin’s motion for summary judgment dismissing Hodges’ action against Chernin. Hodges’ complaint alleged claims for legal malpractice, fraud, and breach of fiduciary duty against Chernin.

Essentially this case arises from Hodges’ allegations that, at the request of Hussein Govani, Chernin convinced Hodges to sign a release of potential personal injury claims arising from injuries that Hodges sustained in a shooting incident at a tavern owned by Govani. Hodges alleges that at the same time, Chernin was also representing Hodges in an unrelated criminal case, at the behest of Govani.

Chernin brought a motion for summary judgment seeking dismissal of Hodges’ complaint in this action. In support of his motion, Chernin submitted an affidavit in which he averred that a certain disc contained recorded phone calls that Hodges made while he was in custody in the Milwaukee County Jail. He then asserted that statements that Hodges made in the phone calls clearly showed that Hodges understood that by signing the release he would be giving up any potential claims that he had arising from the tavern shooting. Chernin then argued that, because Hodges understood the effect of his signing the release, Chernin could not have been the “proximate cause” of any injuries Hodges suffered as a result of signing the release.

The trial court based its decision granting the motion for summary judgment exclusively on the contents of the disc Chernin submitted. It stated that, as a result of Hodges’ knowledge of the effect of the release, the “causation chain” in each of Hodges’ claims “is broken.” This appeal followed.

We conclude that the trial court erred in relying on Chernin’s affidavit in finding that the disc constituted admissible evidence for the purpose of his summary judgment motion because Chernin lacked the requisite personal knowledge to support his averments in his affidavit. Therefore, we reverse the trial court’s order granting Chernin’s motion for summary judgment.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Nathaniel Lee Mattson

Case No.: 2019AP201-CR

Officials: SEIDL, J.

Focus: Plea Withdrawal

Nathaniel Mattson appeals a judgment of conviction, entered upon his guilty pleas, to one count of domestic battery and one count of disorderly conduct, and an order denying his postconviction motion for plea withdrawal. Mattson contends his guilty pleas were not knowing, intelligent, and voluntary because he mistakenly believed that the decision to either take the State’s plea offer or go to trial was a choice that belonged to his counsel and not to himself. We conclude the circuit court’s refusal to allow his plea withdrawal did not result in manifest injustice. We therefore affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. K.L.G.

Case No.: 2019AP658

Officials: BRASH, P.J.

Focus: Court Error – Admittance of Evidence – Improper Identification Procedure

The State appeals an order of the trial court granting K.L.G.’s motion to suppress the identification made by Milwaukee Police Officer Kim Lastrilla. In his motion, K.L.G. argued that Officer Lastrilla used an improper identification procedure when she looked up his booking photo from a previous incident.

The trial court, citing State v. Dubose, 2005 WI 126, 285 Wis. 2d 143, 699 N.W.2d 582, granted the motion and dismissed the case against K.L.G. without prejudice. However, our supreme court recently abrogated Dubose in State v. Roberson, 2019 WI 102, 389 Wis. 2d 190, 935 N.W.2d 813, with a directive to “return to ‘reliability [a]s the linchpin in determining the admissibility of identification testimony.’” Id., ¶3 (citation omitted; brackets in Roberson).

After reviewing this case under that standard, we conclude that Officer Lastrilla’s identification of K.L.G. was sufficiently reliable. We therefore reverse and remand this matter for further proceedings consistent with this opinion.

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WI Court of Appeals – District III

Case Name: Tera L. Junion v. Donald J. Junion

Case No.: 2019AP844

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

Focus: Abuse of Discretion – Martial Property Agreement

Donald (Don) Junion appeals a divorce judgment that terminated his marriage to Tera Junion. Don contends the circuit court erroneously exercised its discretion by concluding the parties’ marital property agreement (MPA) was unenforceable. For the reasons set forth below, we conclude there is no basis to disturb the court’s discretionary decision. We therefore affirm.

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WI Court of Appeals – District I

Case Name: Milwaukee Block 10 Properties, LLC, et al., v. City of Milwaukee

Case No.: 2019AP1424

Officials: Brash, P.J., Blanchard and White, JJ.

Focus: Tax Assessment – Validity

The City of Milwaukee appeals an order of the trial court regarding the claims of excessive property tax assessments brought by Milwaukee Block 10 Properties, LLC and Milwaukee River Hotel, LLC (collectively “Block 10”) for its property, the Aloft Hotel. Block 10 argues that the 2016 tax assessments for the Aloft was excessive because it improperly included parking income generated from parking guests’ vehicles in a parking ramp that is off-site and owned by a third party.

The trial court found that the 2016 assessment should not have included the parking income because that business value would not be transferred upon a sale of the Aloft because the hotel does not own the ramp. The court therefore ordered reassessment for 2016, which resulted in reimbursement to Block 10 of more than $20,000.

We disagree. The relevant issue for consideration is whether the parking income would continue upon a theoretical sale of the Aloft, and the ownership of the parking ramp is not a pertinent factor in this analysis. We therefore reverse and remand this matter for the entry of a judgment in favor of the City, and the dismissal of Block 10’s complaint.

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WI Court of Appeals – District I

Case Name: Richard Dallen v. Kathleen Dallen

Case No.: 2019AP1458

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

Focus: Time-barred – Guardianship

Kathleen Dallen appeals from an order of the trial court regarding guardianship proceedings for her mother, M.D. The order appointed Kathleen as guardian of the person for M.D., and Richard Dallen, her brother, as guardian of M.D.’s estate.

Kathleen argues that the order on guardianship should be vacated because the trial court lost competency when it failed to complete a hearing on the petition for guardianship within the time frame required by statute. She also argues that the trial court erred in failing to make findings regarding the evidence in the record, and in its grant of certain powers to the guardian of the estate.

We agree that the trial court lost competency to hear the petition by failing to complete a hearing on the petition within the statutory time frame. We therefore reverse and remand this matter with directions to dismiss the order for guardianship.

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WI Court of Appeals – District II

Case Name: Hartland Sportsmen’s Club, Inc., v. City         of Delafield, et al.,

Case No.: 2019AP740

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

Focus: Writ of Mandamus

The City of Delafield, the City of Delafield Common Council, and the City of Delafield Plan Commission (collectively, the City) appeal from an order granting the motion of Hartland Sportsmen’s Club, Inc. (HSC) for a writ of mandamus ordering the City to issue HSC’s conditional use permit (CUP) based on HSC’s 2011 application and under applicable law to operate a sport shooting range. The City contends the circuit court erred in determining that prior court decisions set forth a plain legal duty to issue the CUP. We disagree and affirm.

Recommended for Publication

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Brian Vincent Rotolo

Case No.: 2019AP2061-CR

Officials: NEUBAUER, C.J.

Focus: Miranda Warnings – Motion to Suppress

Brian Vincent Rotolo appeals from a judgment convicting him of possession of tetrahydrocannabinols (THC) and of drug paraphernalia, and he challenges the denial of his motion to suppress statements he made to police and evidence obtained from his car. Rotolo was questioned by police after his store manager heard him talking to other employees about using and selling drugs, and Rotolo eventually admitted that he had THC and paraphernalia in his car, and he consented to a search of the car. We conclude that when Rotolo made the statements and gave consent, he was not in custody requiring Miranda warnings, but was instead temporarily detained while the police investigated the drug-related claims. We therefore affirm.

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WI Court of Appeals – District II

Case Name: Fond Du Lac County v. S.N.W.,

Case No.: 2019AP2073

Officials: REILLY, P.J.

Focus: Prisoner – Involuntary Commitment and Medication

S.N.W. appeals from an order of the circuit court for involuntary commitment and an order for involuntary medication and treatment. S.N.W. argues that the circuit court lacked competency to proceed with the final hearing as one of the medical experts failed to submit his report forty-eight hours before the hearing pursuant to WIS. STAT. § 51.20(10)(b). As we conclude that § 51.20(10)(b) does not affect the competency of the circuit court, we affirm.

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WI Court of Appeals – District II

Case Name: Winnebago County v. S.H.,

Case No.: 2019AP2277-FT

Officials: Reilly, P.J., Gundrum and Davis, JJ.

Focus: Prisoner – Involuntary Commitment and Medication

“Sarah” appeals from an order extending her involuntary commitment and from an order for involuntary medication and treatment. See WIS. STAT. §§ 51.20(13)(g)1., 51.61(1)(g)4. The evidence supports the circuit court’s conclusions that Sarah is mentally ill, is a proper subject for treatment, and would be the proper subject for commitment if treatment were withdrawn. See § 51.20(1)(a)1., (am). We therefore affirm.

Recommended for Publication
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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Ronald J. Wendling

Case No.: 2017AP895-CR

Officials: Blanchard, Graham, and Nashold, JJ.

Focus: Unlawful-stop Claim – Reasonable Suspicion

Ronald Wendling appeals a judgment of conviction. The issue is whether a police officer had reasonable suspicion to stop Wendling’s vehicle because, when the officer checked the vehicle’s license plate number in a database, the officer received a response to the effect of “unable to process.” We conclude that there was reasonable suspicion. We affirm.

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WI Court of Appeals – District III

Case Name: Eau Claire County Department of Human Services v. S.E.

Case No.: 2019AP894

Officials: Sheila T. Reiff

Focus: Order Correcting Opinion

PLEASE TAKE NOTICE that corrections were made to paragraph 16 n.10 in the above-captioned opinion which was released on May 13, 2020. A corrected electronic version in its entirety is available on the court’s website at www.wicourts.gov.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Timothy W. Miller v. Angela L. Carroll

Case No.: 2020 WI 56

Focus: Due Process Violation

This case presents an issue of first impression: an allegation of judicial bias arising from a circuit court judge’s undisclosed social media connection with a litigant. In this case, a circuit court judge accepted a Facebook “friend request” from the mother in a custody dispute after a contested hearing, but before rendering a decision. In the course of their 25-day Facebook “friendship,” the mother “liked” 16 of the judge’s Facebook posts, “loved” two of his posts, commented on two of his posts, and “shared” and “liked” several third-party posts related to an issue that was contested at the hearing. The judge never disclosed the Facebook friendship or the communications, and he ultimately ruled entirely in the mother’s favor.

After discovering the Facebook friendship, the father moved the circuit court for reconsideration, requesting judicial disqualification and a new hearing. At the reconsideration hearing, the judge admitted to the Facebook interactions between himself and the mother. However, he denied the motion and claimed that he was impartial because he had already decided on his ruling prior to accepting her friend request.

The court of appeals reversed the circuit court’s denial of the motion for reconsideration and remanded the case with directions that it proceed before a different circuit court judge.

We conclude that the extreme facts of this case rebut the presumption of judicial impartiality and establish a due process violation. Accordingly, we affirm the court of appeals.

Affirmed

Concur: ANN WALSH BRADLEY, J., filed a concurring opinion. ZIEGLER, J., filed a concurring opinion. DALLET, J., filed a concurring opinion, in which HAGEDORN, J., joined.

Dissent: HAGEDORN, J., filed a dissenting opinion, in which REBECCA GRASSL BRADLEY, and KELLY, JJ., joined except for footnote 1 and ¶¶120-24, but do join footnote 3.

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WI Supreme Court

Case Name: David Skindzelewski v. Joseph Smith, Jr.,

Case No.: 2018AP623

Focus: Legal Malpractice

David Skindzelewski committed a crime, pled guilty, and spent time in jail as a consequence for committing that crime until a circuit court vacated his conviction because the statute of limitations rendered the conviction erroneous. In this action, Skindzelewski sued his criminal defense attorney for legal malpractice because his attorney failed to raise the statute of limitations as an affirmative defense in his criminal case. Neither the circuit court nor the court of appeals permitted his suit to proceed to trial because Skindzelewski could not prove he was actually innocent of the crime of which he was convicted. Skindzelewski asks this court to reverse the unpublished court of appeals opinion affirming the circuit court’s grant of summary judgment.

The actual innocence rule requires a criminal defendant who sues his defense attorney for legal malpractice to establish the defendant did not commit the crime of which he was convicted. Skindzelewski concedes his guilt but advocates the formulation of an exception to the actual innocence rule. We decline to create one under the facts presented by Skindzelewski’s lawsuit. Nothing about Skindzelewski’s case warrants developing an exception to the actual innocence rule; recognizing one under these circumstances would reward criminality. As a matter of law, Skindzelewski cannot succeed on his legal malpractice claim. We affirm the decision of the court of appeals.

Affirmed

Concur: HAGEDORN, J., filed a concurring opinion.

Dissent: DALLET, J., filed a dissenting opinion.

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Supreme Court Digests

United States Supreme Court

Case Name: United States Forest Service, et al., v. Cowpasture River Preservation Association, et al.,

Case No.: 18-1584; 18-1587

Focus: Statutory Interpretation – Mineral Leasing Act

We granted certiorari in these consolidated cases to decide whether the United States Forest Service has authority under the Mineral Leasing Act, 30 U. S. C. §181 et seq., to grant rights-of-way through lands within national forests traversed by the Appalachian Trail. 588 U. S. ___ (2019). We hold that the Mineral Leasing Act does grant the Forest Service that authority and therefore reverse the judgment of the Court of Appeals for the Fourth Circuit.

Reversed and remanded

Dissenting: SOTOMAYOR, J., filed a dissenting opinion, in which KAGAN, J., joined.

Concurring:

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United States Supreme Court

Case Name: Gerald Lynn Bostock, et al., v. Clayton County, Georgia, et al.,

Case No.: 17-1618

Focus: Statutory Interpretation – Civil Rights Act of 1964

Sometimes small gestures can have unexpected consequences. Major initiatives practically guarantee them. In our time, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964. There, in Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.

Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.

No. 17–1618, 723 Fed. Appx. 964, reversed and remanded; No. 17–1623, 883 F. 3d 100, and No. 18–107, 884 F. 3d 560, affirmed.

Dissenting: ALITO, J., filed a dissenting opinion, in which THOMAS, J., joined. KAVANAUGH, J., filed a dissenting opinion.

Concurring:

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United States Supreme Court

Case Name: Terence Tramaine Andrus v. Texas

Case No.: 18-9674

Focus: Writ of Certiorari – Ineffective Assistance of Counsel

Death-sentenced petitioner Terence Andrus was six years old when his mother began selling drugs out of the apartment where Andrus and his four siblings lived. To fund a spiraling drug addiction, Andrus’ mother also turned to prostitution. By the time Andrus was 12, his mother regularly spent entire weekends, at times weeks, away from her five children to binge on drugs. When she did spend time around her children, she often was high and brought with her a revolving door of drug-addicted, sometimes physically violent, boyfriends. Before he reached adolescence, Andrus took on the role of caretaker for his four siblings.

When Andrus was 16, he allegedly served as a lookout while his friends robbed a woman. He was sent to a juvenile detention facility where, for 18 months, he was steeped in gang culture, dosed on high quantities of psychotropic drugs, and frequently relegated to extended stints of solitary confinement. The ordeal left an already traumatized Andrus all but suicidal. Those suicidal urges resurfaced later in Andrus’ adult life.

During Andrus’ capital trial, however, nearly none of this mitigating evidence reached the jury. That is because Andrus’ defense counsel not only neglected to present it; he failed even to look for it. Indeed, counsel performed virtually no investigation of the relevant evidence. Those failures also fettered the defense’s capacity to contextualize or counter the State’s evidence of Andrus’ alleged incidences of past violence. Only years later, during an 8-day evidentiary hearing in Andrus’ state habeas proceeding, did the grim facts of Andrus’ life history come to light. And when pressed at the hearing to provide his reasons for failing to investigate Andrus’ history, Andrus’ counsel offered none.

The Texas trial court that heard the evidence recommended that Andrus be granted habeas relief and receive a new sentencing proceeding. The court found the abundant mitigating evidence so compelling, and so readily available, that counsel’s failure to investigate it was constitutionally deficient performance that prejudiced Andrus during the punishment phase of his trial. The Texas Court of Criminal Appeals disagreed. It concluded without explanation that Andrus had failed to satisfy his burden of showing ineffective assistance under Strickland v. Washington, 466 U. S. 668 (1984).

We conclude that the record makes clear that Andrus has demonstrated counsel’s deficient performance under Strickland, but that the Court of Criminal Appeals may have failed properly to engage with the follow-on question whether Andrus has shown that counsel’s deficient performance prejudiced him. We thus grant Andrus’ petition for a writ of certiorari, vacate the judgment of the Texas Court of Criminal Appeals, and remand the case for further proceedings not inconsistent with this opinion.

Petition granted. Vacated and remanded.

Dissenting: JUSTICE ALITO, with whom JUSTICE THOMAS and JUSTICE GORSUCH join, dissenting.

Concurring:

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United States Supreme Court

Case Name: Department of Homeland Security, et al., v. Regents of the University of California, et al.,

Case No.: 18-587; 18-588; 18-589

Focus: Due Process Violation – DACA

In 2012, the Department of Homeland Security (DHS) issued a memorandum announcing an immigration relief program known as Deferred Action for Childhood Arrivals (DACA), which allows certain unauthorized aliens who arrived in the United States as children to apply for a two-year forbearance of removal. Those granted such relief become eligible for work authorization and various federal benefits. Some 700,000 aliens have availed themselves of this opportunity. Two years later, DHS expanded DACA eligibility and created a related program known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). If implemented, that program would have made 4.3 million parents of U. S. citizens or lawful permanent residents eligible for the same forbearance from removal, work eligibility, and other benefits as DACA recipients. Texas, joined by 25 other States, secured a nationwide preliminary injunction barring implementation of both the DACA expansion and DAPA. The Fifth Circuit upheld the injunction, concluding that the program violated the Immigration and Nationality Act (INA), which carefully defines eligibility for benefits. This Court affirmed by an equally divided vote, and the litigation then continued in the District Court.

In June 2017, following a change in Presidential administrations, DHS rescinded the DAPA Memorandum, citing, among other reasons, the ongoing suit by Texas and new policy priorities. That September, the Attorney General advised Acting Secretary of Homeland Security Elaine C. Duke that DACA shared DAPA’s legal flaws and should also be rescinded. The next day, Duke acted on that advice. Taking into consideration the Fifth Circuit and Supreme Court rulings and the Attorney General’s letter, Duke decided to terminate the program. She explained that DHS would no longer accept new applications, but that existing DACA recipients whose benefits were set to expire within six months could apply for a two-year renewal. For all other DACA recipients, previously issued grants of relief would expire on their own terms, with no prospect for renewal. Several groups of plaintiffs challenged Duke’s decision to rescind DACA, claiming that it was arbitrary and capricious in violation of the Administrative Procedure Act (APA) and infringed the equal protection guarantee of the Fifth Amendment’s Due Process Clause. District Courts in California (Regents, No. 18–587), New York (Batalla Vidal, No. 18–589), and the District of Columbia (NAACP, No. 18–588) all ruled for the plaintiffs. Each court rejected the Government’s arguments that the claims were unreviewable under the APA and that the INA deprived the courts of jurisdiction. In Regents and Batalla Vidal, the District Courts further held that the equal protection claims were adequately alleged, and they entered coextensive nationwide preliminary injunctions based on the conclusion that the plaintiffs were likely to succeed on their APA claims. The District Court in NAACP took a different approach. It deferred ruling on the equal protection challenge but granted partial summary judgment to the plaintiffs on their APA claim, finding that the rescission was inadequately explained. The court then stayed its order for 90 days to permit DHS to reissue a memorandum rescinding DACA, this time with a fuller explanation of the conclusion that DACA was unlawful. Two months later, Duke’s successor, Secretary Kirstjen M. Nielsen, responded to the court’s order. She declined to disturb or replace Duke’s rescission decision and instead explained why she thought her predecessor’s decision was sound. In addition to reiterating the illegality conclusion, she offered several new justifications for the rescission. The Government moved for the District Court to reconsider in light of this additional explanation, but the court concluded that the new reasoning failed to elaborate meaningfully on the illegality rationale. The Government appealed the various District Court decisions to the Second, Ninth, and D. C. Circuits, respectively. While those appeals were pending, the Government filed three petitions for certiorari before judgment. Following the Ninth Circuit affirmance in Regents, this Court granted certiorari.

The judgment in No. 18–587 is vacated in part and reversed in part; the judgment in No. 18–588 is affirmed; the February 13, 2018 order in No. 18–589 is vacated, the November 9, 2017 order is affirmed in part, and the March 29, 2018 order is reversed in part; and all of the cases are remanded.  No. 18–587, 908 F. 3d 476, vacated in part and reversed in part; No. 18– 588, affirmed; and No. 18–589, February 13, 2018 order vacated, November 9, 2017 order affirmed in part, and March 29, 2018 order reversed in part; all cases remanded.

Dissenting: SOTOMAYOR, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part. THOMAS, J., filed an opinion concurring in the judgment in part and dissenting in part, in which ALITO and GORSUCH, JJ., joined. ALITO, J., and KAVANAUGH, J., filed opinions concurring in the judgment in part and dissenting in part.

Concurring: SOTOMAYOR, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part. THOMAS, J., filed an opinion concurring in the judgment in part and dissenting in part, in which ALITO and GORSUCH, JJ., joined. ALITO, J., and KAVANAUGH, J., filed opinions concurring in the judgment in part and dissenting in part.

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