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Weekly Case Digests – November 2, 2020 – November 6, 2020

By: WISCONSIN LAW JOURNAL STAFF//November 6, 2020//

Weekly Case Digests – November 2, 2020 – November 6, 2020

By: WISCONSIN LAW JOURNAL STAFF//November 6, 2020//

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7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Anthony Mays, et al., v. Thomas J. Dart

Case No.: 20-1792

Officials: SYKES, Chief Judge, and BRENNAN and ST. EVE, Circuit Judges.

Focus: Preliminary Injunction Relief

Plaintiffs—a class of detainees at the Cook County Jail—brought this action against Cook County Sheriff Thomas Dart after the Jail reported an outbreak of COVID-19, the disease caused by the novel coronavirus that has sparked a global pandemic. Plaintiffs contend that the Sheriff has violated their Fourteenth Amendment Due Process rights by failing to provide them with reasonably safe living conditions as the pandemic rages. Plaintiffs seek various forms of relief, including an injunction requiring the Sheriff to implement certain procedures related to social distancing, sanitation, diagnostic testing, and personal protective equipment (“PPE”) to protect them from the virus for the duration of the pandemic.

After a hearing, the district court granted a temporary restraining order imposing several forms of relief, including but not limited to, mandates requiring the Sheriff to provide hand sanitizer and soap to all detainees and face masks to detainees in quarantine. The district court declined to order relief in several instances, though: most notably for our decision today, the district court rejected Plaintiffs’ request to prohibit double celling and group housing arrangements to permit adequate social distancing.

Plaintiffs subsequently moved for entry of a preliminary injunction, requesting an extension of the relief the district court previously mandated in the temporary restraining order and, among other things, renewing their request for socially distanced housing. After another hearing, the district court switched course from its prior ruling and granted the renewed social distancing request, albeit with certain exceptions. The district court also granted the request for an extension of the relief included in the temporary restraining order. The Sheriff appealed.

We conclude that, in the course of its analysis regarding double celling and group housing, the district court committed three distinct legal errors: the district court failed to consider the Sheriff’s conduct in its totality, failed to afford proper deference to the Sheriff’s judgment in adopting policies necessary to ensure safety and security, and cited an incorrect legal standard when evaluating the likelihood that Plaintiffs’ claims will succeed on their merits. Given these legal errors in evaluating the likelihood of success on the merits of Plaintiffs’ claims, we reverse the district court with respect to the portion of the preliminary injunction mandating socially distanced housing. Regarding the remaining relief, however, the district court made detailed factual findings, properly considered the Sheriff’s conduct in its totality, and closely tailored the relief it ordered to the guidelines promulgated by the Centers for Disease Control and Prevention (“CDC”). We therefore affirm all other aspects of the preliminary injunction.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Roland Pulliam

Case No.: 19-2162

Officials: DIANE S. SYKES, Chief Judge, KENNETH F. RIPPLE, Circuit Judge, MICHAEL S. KANNE, Circuit Judge.

Focus: Order Amending Opinion

The opinion issued in this case on September 3, 2020, is hereby AMENDED as follows: At line three of the second full paragraph on page seven of the slip opinion the word “affects” is stricken and replaced with the phrase: “does not affect”.

Ordered

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7th Circuit Court of Appeals

Case Name: Deon Patrick v. City of Chicago, et al.,

Case No.: 18-2759

Officials: SYKES, Chief Judge, and BAUER and ROVNER, Circuit Judges.

Focus: Jury Instructions

Deon Patrick was convicted of double murder in 1995 and sentenced to life in prison. The convictions were vacated in 2014 and Patrick was released. The Cook County Circuit Court issued a certificate of innocence, see 735 ILL. COMP. STAT. 5/2-702, and Patrick then filed suit for wrongful conviction against seven Chicago police officers and two prosecutors who investigated and prosecuted him. He alleged several constitutional claims under 42 U.S.C. § 1983 and state-law claims for malicious prosecution and civil conspiracy. The City of Chicago, also a defendant, stipulated to liability if any of its officers were found responsible for violating Patrick’s rights. A jury exonerated the prosecutors and one officer but found six officers liable and awarded more than $13 million in compensatory damages and punitive damages in varying amounts.

The defendants raise several errors on appeal. First, they claim that the district judge should have dismissed the case as a sanction for Patrick’s acknowledged perjury during discovery. Second, they challenge the judge’s decision to admit the certificate of innocence at trial, arguing that it was unfairly prejudicial, either alone or in combination with certain statements by Patrick’s lawyer during closing argument. Finally, they point to an error in the jury instruction on Patrick’s due-process claim.

We affirm. The judge’s ruling on the sanctions question was a reasonable exercise of his discretion, and it was not improper to admit the certificate of innocence into evidence at trial. The jury instruction contained an error, but it was harmless under the circumstances of this case.

Affirmed

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7th Circuit Court of Appeals

Case Name: A.F. Moore & Associates, Inc., et al.,

Case No.: 20-2497

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

Focus: Abuse of Discretion – Writ of Mandamus

In January, we reversed the dismissal of an equal-protection suit brought by a group of taxpayers challenging Cook County’s pre-2008 property tax assessments. The district court had determined that it lacked jurisdiction under the Tax Injunction Act, 28 U.S.C. § 1341, because Illinois offered the taxpayers a “plain, speedy and efficient remedy.” We disagreed. Based on the defendants’ own concessions, we held that Illinois’s procedures left these taxpayers no remedy at all for their claims, let alone a speedy and efficient one—the taxpayers had been litigating in state courts for a decade. A.F. Moore & Assocs., Inc. v. Pappas, 948 F.3d 889, 896 (7th Cir. 2020). The defendant officials petitioned for rehearing and rehearing en banc, but no member of the court voted to rehear the case. Our mandate issued on April 17, and the case returned to the district court for further proceedings.

There have been no further proceedings. On June 9, the day before the defendants were to answer the complaint, the defendants filed two motions seeking a stay of the case pending the resolution of a petition for a writ of certiorari that they planned to submit in September. They filed the first motion in this court, asking that we recall our mandate and stay its reissuance. See FED. R. APP. P. 41(d). We summarily denied their request.

They filed the second motion in the district court, which chose to grant the relief that we had already denied. The district court rejected the taxpayers’ arguments that it was prohibited from entering a stay both by our mandate and by 28 U.S.C. § 2101(f), which expressly authorizes this court or the Supreme Court to stay execution of a final judgment pending certiorari. And having concluded that it possessed the necessary authority, the district court exercised it. It reasoned that if the Supreme Court granted certiorari and reversed our decision, any actions that the district court took in the meantime would be invalid for lack of jurisdiction. In other words, acting on our judgment that it had authority to adjudicate the taxpayers’ case might result in wasted effort, so the district court decided to wait to see if the Supreme Court reversed us.

The taxpayers now petition for a writ of mandamus, asserting that the district court exceeded its authority when it entered the stay. A writ of mandamus is an extraordinary remedy, not lightly invoked, but it is available in an appropriate case for a litigant who can show that it has no other adequate means to attain relief to which it is clearly entitled. Cheney v. U.S. District Court, 542 U.S. 367, 380–81 (2004); In re CFTC, 941 F.3d 869, 872 (7th Cir. 2019). This is such a case.

The district court, of course, has broad discretion to decide what that pace should be. See Landis v. N. Am. Co., 299 U.S. 248, 254–55 (1936); Gonzalez v. Ingersoll Mill. Mach. Co., 133 F.3d 1025, 1030 (7th Cir. 1998). Our mandate did not obligate the court to rush to final judgment before September ends. Still, a district court can exercise its inherent authority only consistent with our mandate and our mandate foreclosed a stay pending certiorari. As we have already noted, countless district courts have drawn this very line as the outer limit of their authority. See, e.g., In re Servotronics, Inc., No. 2:18-MC00364-DCN, 2020 WL 3051247, at *3 (D.S.C. June 8, 2020); United States v. Sample, No. CR 15-4265 JCH, 2018 WL 6622198, at *3 (D.N.M. Dec. 18, 2018); Lentz, 352 F. Supp. 2d at 727–28. The district court here relied only on the pending petition for a writ of certiorari to grant the stay that we had already denied. That order was incompatible with the clear spirit of our mandate and must be vacated. PETITION GRANTED; MANDAMUS ISSUED.

Petition granted; Mandamus Issued

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Robert L. Brown

Case No.: 2018AP1958

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

Focus: Sentencing Modification

Robert Brown, pro se, appeals an order denying his motion for sentence modification. Brown claims there are two new factors justifying a reduction in his sentence. Specifically, he asserts the sentencing court was unaware that: (1) Brown would not be able to receive sex offender treatment while he was incarcerated; and (2) the fifteen-year period of initial incarceration would exceed Brown’s life expectancy. We reject Brown’s arguments and, therefore, affirm the circuit court’s order.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Justin Jackson

Case No.: 2018AP2450-CR

Officials: Blanchard, Dugan and Donald, JJ.

Focus: Ineffective Assistance of Counsel

Based on guilty pleas, Justin Jackson was convicted of possession of a firearm by a felon and threatening a law enforcement officer. He appeals the judgment of conviction and the order denying a motion for postconviction relief. In his postconviction motion, Jackson contended that he received ineffective assistance of counsel when his trial counsel failed to inform him, before he decided to enter the pleas, that he had a potentially meritorious motion to suppress evidence. Following a Machner hearing, the circuit court denied the motion based on a determination that trial counsel did not perform deficiently in failing to recommend that Jackson pursue a suppression motion. We agree with Jackson that trial counsel provided ineffective assistance on the potential suppression issue. Accordingly, we reverse the order denying postconviction relief, and direct that the circuit court hold the suppression hearing that Jackson now seeks.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Ashley L. Monn

Case No.: 2019AP640-CR

Officials: HRUZ, J.

Focus: 4th Amendment Violation – Search & Seizure

Ashley Monn appeals a judgment of conviction, entered upon her guilty plea, to misdemeanor possession of amphetamine in violation of WIS. STAT. § 961.41(3g)(d). Monn argues the circuit court erred by denying her motions to suppress evidence obtained after law enforcement officers executed an outstanding arrest warrant at the residence of the individual subject to the warrant, a residence at which Monn was staying for the evening.

There are multiple searches and seizures that occurred in this case implicating the Fourth Amendment. At least two of these violated Monn’s constitutional rights. Specifically, assuming that the officers’ initial seizure of Monn was lawful, we agree that her seizure lasted longer than was necessary to effectuate its purposes, making its continuation unreasonable and, therefore, unlawful. We also agree with Monn that the consent she gave to the officers to search her purse was constitutionally invalid because she was unlawfully seized at the time she consented to that search. We therefore reverse Monn’s judgment of conviction, and we remand the matter with directions for the circuit court to grant her first-filed suppression motion.

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WI Court of Appeals – District III

Case Name: Gerald Haugen v. Northern State Bank, et al.,

Case No.: 2019AP746

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

Focus: Insurance Claim – Summary Judgment

Gerald Haugen appeals from a summary judgment dismissing his action against Northern State Bank and its insurer, Owners Insurance Company (collectively, “the Bank”), for injuries allegedly caused by a defective floor in the Bank’s hallway. The circuit court concluded that the statute of repose in WIS. STAT. § 893.89 (2017-18) barred Haugen’s claims. We affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Kayla C. Murphy

Case No.: 2019AP1124-CR

Officials: STARK, P.J.

Focus: Sufficiency of Evidence

The State appeals an order granting Kayla Murphy’s motion to dismiss an amended criminal complaint charging her with one count of neglecting a patient, contrary to WIS. STAT. § 940.295(3)(a)3. and (b)4. The State argues that the circuit court erred by dismissing the amended complaint because it alleged sufficient facts, together with reasonable inferences from those facts, to allow a reasonable person to conclude that Murphy neglected a patient under circumstances that caused or were likely to cause that patient bodily harm in violation of that statute. We agree. Accordingly, we reverse the circuit court’s order granting Murphy’s motion to dismiss and remand the matter for further proceedings.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Johnathan L. Johnson

Case No.: 2019AP1398-CR

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

Focus: OWI – Suppression of Evidence – Blood Test

Johnathan Johnson appeals a judgment, entered upon his no-contest plea, convicting him of fifth offense operating a motor vehicle with a prohibited alcohol concentration (PAC). Johnson contends the circuit court erred, for two reasons, by denying his motion to suppress the results of an evidentiary chemical test of his blood. First, Johnson argues his constitutional right to be free from unreasonable seizures was violated when a McDonald’s restaurant employee delayed the delivery of Johnson’s food order until officers responded to the employee’s 911 call reporting that Johnson appeared to be operating his vehicle while intoxicated. Johnson reasons that because the 911 dispatcher stated “okay” in response to being informed by the employee of her decision to delay the delivery of Johnson’s food, the State sanctioned a violation of a “fast food contract.” Second, Johnson argues that the judge who authorized a search warrant for the collection of his blood administered an oath to the officer seeking the warrant that was “fundamentally defective” because the oath did not include the words “so help me God.”

Regarding Johnson’s first argument, we conclude that Johnson has failed to show the existence of—much less the violation of—a “fast food contract” that required the McDonald’s employees to avoid delaying the delivery of his food. Further, because Johnson was not delayed at the McDonald’s premises at the request of the State and was at all times free to leave prior to the arrival of law enforcement, we conclude that no seizure occurred.

As to Johnson’s second argument, we conclude that the warrant authorizing the search was supported by a statement made under “oath or affirmation,” as required by the Fourth Amendment to the United States Constitution, article I, section 11 of the Wisconsin Constitution, and various Wisconsin statutes. We reach this conclusion in light of our supreme court’s statement that the validity of an oath or affirmation is a “matter of substance, not form,” see State v. Tye, 2001 WI 124, ¶19, 248 Wis. 2d 530, 636 N.W.2d 473, in conjunction with the undisputed fact that the police officer seeking the search warrant swore to the warrant-issuing judge that the statements made in the affidavit supporting the warrant application were true. Consequently, we affirm.

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WI Court of Appeals – District III

Case Name: Timothy M. Casa De Calvo, Jr., v. Town of Hudson, et al.,

Case No.: 2019AP1851

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

Focus: Summary Judgment – Adverse Possession

Timothy Casa De Calvo, Jr., appeals a summary judgment dismissing his adverse possession claim against the Town of Hudson. The circuit court concluded Casa De Calvo’s adverse possession claim failed, as a matter of law, because the parcel in question is held by the Town “for highway purposes” and therefore is not subject to adverse possession, pursuant to WIS. STAT. § 893.29(2)(c) (1987-88). Casa De Calvo argues the court erred because the Town has never used the disputed parcel as a highway and has no intent to do so in the future.

We conclude the circuit court properly granted the Town summary judgment. It is undisputed that the parcel in question, although not currently used as a highway, was dedicated as a street on a subdivision plat that was recorded in 1986. As such, under WIS. STAT. § 236.29(1), the recorded subdivision plat vested fee simple ownership of the disputed parcel in the Town, which holds that parcel “in trust” for use as a street. We agree with the circuit court that, under these circumstances, the disputed parcel is held by the Town for highway purposes. Consequently, WIS. STAT. § 893.29(2)(c) provides that the parcel is not subject to adverse possession. We therefore affirm the circuit court’s decision granting the Town summary judgment.

Recommended for Publication

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Andrew W. Bunn

Case No.: 2019AP2127-CR

Officials: DONALD, J.

Focus: Unlawful-stop Claim – Reasonable Suspicion

Andrew W. Bunn, pro se, appeals the judgment of conviction, following guilty pleas, to two counts of carrying a concealed weapon. As best as we can tell, Bunn contends that police lacked reasonable suspicion to stop his vehicle. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. James E. Brown

Case No.: 2020AP489-CR

Officials: DONALD, J.

Focus: Unlawful-stop Claim – Reasonable Suspicion

James E. Brown appeals a judgment of conviction, following a guilty plea, of one count of carrying a concealed weapon. Brown argues that Milwaukee police lacked reasonable suspicion to stop his vehicle. We agree and conclude that even if the initial stop was lawful, police lacked reasonable suspicion to extend the traffic stop. Accordingly, we reverse the judgment of conviction and remand the matter with directions consistent with this opinion.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Moeun Mao

Case No.: 2018AP2369-CR

Officials: Blanchard, Kloppenburg, and Nashold, JJ.

Focus: Ineffective Assistance of Counsel

Moeun Mao appeals a judgment convicting him of two counts of sexual assault for having sexual intercourse with and impregnating a developmentally disabled sixteen-year-old female, G.S.K., and an order denying his postconviction motion seeking a new trial due to the ineffective assistance of trial counsel, plain error, and in the interest of justice. We affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Victoria L. Conley

Case No.: 2019AP902-CR

Officials: BLANCHARD, J.

Focus: Plea Colloquy

Victoria Conley entered a plea of no contest to a single count of disorderly conduct as a criminal offense. She now appeals the judgment of conviction and an order denying her motion for postconviction relief. In the postconviction motion, Conley challenged her plea under WIS. STAT. § 971.08 and State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986). Specifically, Conley relied on § 971.08(1)(a), which provides in pertinent part that the plea-taking court must “determine that the plea is made voluntarily with understanding of the nature of the charge.” She argued that she did not understand the nature of the crime at the time of the plea, resulting in a manifest injustice.

After holding an evidentiary hearing on the motion, the circuit court rejected Conley’s argument, finding that Conley understood the nature of the crime. I assume without deciding that Conley is correct that the plea colloquy taken by the circuit court was defective because the court failed to establish Conley’s understanding of the nature of the crime. However, I conclude that the State showed by clear and convincing evidence that Conley entered her plea knowingly, voluntarily, and intelligently and that the circuit court did not clearly err in later finding, based on the entire record, that at the time of her plea Conley understood the nature of the crime. I also reject a difficult-to-follow argument by Conley focusing on the concept of duplicity. Accordingly, I affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. John M. Swapsy, Jr.,

Case No.: 2019AP2270-CR

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

Focus: Ineffective Assistance of Counsel

John Swapsy was convicted in the Dane County Circuit Court, following a jury trial, of one count of arson of a building, contrary to WIS. STAT. § 943.02(1)(a) (2013-14).  In a postconviction motion, Swapsy argued that he is entitled to a new trial because his trial counsel was constitutionally ineffective. Specifically, Swapsy argued that his trial counsel was deficient in counsel’s cross-examination of two of the State’s witnesses and in his closing argument, and that counsel’s deficient performance was prejudicial. Following a Machner hearing, the circuit court denied Swapsy’s motion. Swapsy makes the same arguments on appeal, and we affirm.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Office of Lawyer Regulation v. James T. Runyon

Case No.: 2020 WI 74

Focus: Attorney Disciplinary Hearing

We review Referee L. Michael Tobin’s report recommending that the court declare Attorney James T. Runyon in default and revoke his license to practice law in Wisconsin for professional misconduct. The referee also recommends that Attorney Runyon make restitution to the Wisconsin Lawyers’ Fund for Client Protection (Fund) and to certain clients.

No appeal has been filed so we review the referee’s report pursuant to Supreme Court Rule (SCR) 22.17(2). After review of the matter, we agree with the referee that, based on Attorney Runyon’s failure to answer the Office of Lawyer Regulation’s (OLR) complaint, the OLR is entitled to a default judgment. We further agree with the referee that revocation of Attorney Runyon’s license is an appropriate sanction for his professional misconduct. We agree that Attorney Runyon should be required to make restitution to the Fund and certain clients and, finally, we conclude that he should be assessed the full costs of this proceeding which are $1,080.34 as of June 26, 2020.

Attorney’s license revoked

Concur:

Dissent:

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