Weekly Case Digests – November 23, 2020 – November 27, 2020

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Democratic National Committee, et al., v. Marge Bostelmann, et al.,

Case No.: 20-2835; 20-2844

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

Focus: Motion for Stay Denied

The Democratic National Committee and other plaintiffs contend in this suit that statutes affecting the registration of voters and the conduct of this November’s election, although constitutional in principle, see Luft v. Evers, 963 F.3d 665 (7th Cir. 2020), will abridge some voters’ rights during the SARS-CoV-2 pandemic. The state’s legislative branch, plus the Republican National Committee and the Republican Party of Wisconsin, intervened to defend the statutes’ application to this fall’s election.

A district judge held that many of the contested provisions may be used but that some deadlines must be extended and two smaller changes made. 2020 U.S. Dist. LEXIS 172330 (W.D. Wis. Sept. 21, 2020). In particular, the court extended the deadline for online and mail-in registration from October 14 (see Wis. Stat. §6.28(1)) to October 21, 2020; extended the deadline for delivery of absentee ballots by mail from October 22 (see Wis. Stat. §6.87(3)) by allowing for online delivery and access by October 29; and extended the deadline for the receipt of mailed ballots from November 3 (Election Day) to November 9, provided that the ballots are postmarked on or before November 3. Two other provisions of the injunction (2020 U.S. Dist. LEXIS 172330 at *98) need not be described. The three intervening defendants have appealed and asked us to issue a stay; the executive-branch defendants have not appealed. With the election only a few weeks away, the decision with respect to a stay will effectively decide the appeals on the merits.

We need not discuss the parties’ arguments about the constitutional rules for voting or the criteria for stays laid out in Nken v. Holder, 556 U.S. 418 (2009), because none of the three appellants has a legal interest in the outcome of this litigation.

This conclusion is straightforward with respect to the Republican National Committee and the Republican Party of Wisconsin. The district court did not order them to do something or forbid them from doing anything. Whether the deadline for online registration (for example) is October 14 or October 21 does not affect any legal interest of either organization. Neither group contends that the new deadlines established by the district court would violate the constitutional rights of any of their members. The political organizations themselves do not suffer any injury caused by the judgment. See Transamerica Insurance Co. v. South, 125 F.3d 392, 396 (7th Cir. 1997). Appeal by the state itself, or someone with rights under the contested statute, is essential to appellate review of a decision concerning the validity of a state law. See, e.g., Hollingsworth v. Perry, 570 U.S. 693 (2013); Kendall-Jackson Winery, Ltd. v. Branson, 212 F.3d 995 (7th Cir. 2000). See also 1000 Friends of Wisconsin Inc. v. Department of Transportation, 860 F.3d 480 (7th Cir. 2017) (same when the validity of an administrative decision is at stake).

None of the appellants has suffered an injury to its own interests, and the state’s legislative branch is not entitled to represent Wisconsin’s interests as a polity. The suit in the district court presented a case or controversy because the plaintiffs wanted relief that the defendants were unwilling to provide in the absence of a judicial order. See Hollingsworth, 570 U.S. at 702, 705; United States v. Windsor, 570 U.S. 744, 756 (2013). But the appeals by the intervenors do not present a case or controversy within the scope of Article III, and we deny the motions for a stay. Cf. Republican National Committee v. Common Cause Rhode Island, No. 20A28 (S. Ct. Aug. 13, 2020) (denying a motion for a stay under similar circumstances). The interim stay previously entered is vacated. In addition to denying the motions, we give appellants one week to show cause why these appeals should not be dismissed for lack of appellate jurisdiction.

Vacated. Motion denied.

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7^th Circuit Court of Appeals

Case Name: Randal Ricci v. Darrin Salzman, et al.,

Case No.: 19-3035

Officials: KANNE and HAMILTON, Circuit Judges.

Focus: Derivative Jurisdiction

This case calls for us to determine whether the district court properly dismissed the plaintiff’s amended complaint without prejudice under the doctrine of derivative jurisdiction even though that complaint invoked federal jurisdiction. We affirm the district court because the derivative jurisdiction doctrine barred it from exercising jurisdiction over the case and dismissal without prejudice was the appropriate result.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Prairie Rivers Network v. Dynegy Midwest Generation, LLC,

Case No.: 18-3644

Officials: SCUDDER, Circuit Judge, in chambers.

Focus: Utility of Amicus Curiae Briefs

Many Q&As with appellate judges draw a question whether amicus curiae briefs add value to deciding cases. And most of the time judges give the answer that first-year law students quickly learn is ubiquitous in the law—“sometimes; it depends.” This opinion offers a few thoughts on the question as part of explaining why I granted motions to accept three amicus briefs in this appeal.

Prairie Rivers Network appeals the dismissal of the suit it brought under the Clean Water Act against Dynegy Midwest Generation, the owner of a power station in Vermillion, Illinois. The Network alleged that Dynegy’s station was releasing contaminants into groundwater, but the district court dismissed the suit concluding that the Clean Water Act does not regulate groundwater. Much of the appeal focuses on whether the district court’s analysis of the Clean Water Act, and its application (or lack thereof) to the alleged groundwater contamination, remains valid after the Supreme Court’s recent decision in County of Maui v. Hawaii Wildlife Fund, 140 S. Ct. 1462 (2020).

The point, of course, is that an amicus curiae brief should be additive—it should strive to offer something different, new, and important. See Scheidler, 223 F.3d at 617. And a good amicus brief does not have to be long. Indeed, shorter is often better, and I offer that perspective knowing that it is more difficult to write a short, effective brief than a long, belabored brief.

Each of the amicus briefs tendered in this appeal meet these standards. And that is so despite each brief containing some unnecessary and unwelcomed (though perhaps inevitable) repetition of Dynegy’s primary arguments. The Illinois Environmental Regulatory Group briefly presents the history of Illinois groundwater regulation from before Congress’s enactment of the Clean Water Act through the present day, thereby lending context to the cases cited by the parties and highlighting the practical results if we decide to affirm. The United States Chamber of Commerce likewise provides insight into how an alternative federal scheme would apply in the absence of Clean Water Act regulation. Finally, the Washington Legal Foundation’s brief offers its own theory for how to best fit County of Maui into the existing federal scheme regulating the pollutants at issue here. Members of the court might find any or all of these additions helpful to deciding this appeal.

Motion granted

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Violet S. Reynolds

Case No.: 2019AP367-CR; 2019AP368-CR; 2019AP369-CR

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

Focus: Ineffective Assistance of Counsel

In these consolidated appeals, Violet Reynolds seeks to vacate her guilty pleas based on the alleged ineffective assistance of her counsel in failing to raise competency arguments at the plea or sentencing hearings. She also claims the circuit court erred by not holding a nunc pro tunc hearing to determine if Reynolds was competent. We reject Reynolds’ arguments, and we affirm the judgments of conviction and the denial of Reynolds’ postconviction motion

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WI Court of Appeals – District III

Case Name: Dakota Intertek Corp., City of Wausau

Case No.: 2019AP591

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

Focus: Sanctions – Attorney Fees

Dakota Intertek Corp. appeals a judgment dismissing its breach of contract claim against the City of Wausau. Dakota, which had been awarded a service contract from the City, settled an outstanding invoice from a supplier by virtue of a mutual release that specifically included Dakota’s claim against the City. Nonetheless, Dakota argues that its claim against the City—or at least certain damages theories—survived the execution of the release. Dakota also argues the circuit court erroneously awarded the City attorney fees as a sanction for Dakota’s conduct in continuing to pursue a frivolous claim.

We reject Dakota’s arguments. The City was an express third-party beneficiary to the release agreement between Dakota and its supplier. Moreover, the release included the breach of contract claim and all associated damages theories advanced by Dakota in this lawsuit. Finally, Dakota offers no independent basis for challenging the circuit court’s sanctions award, and we perceive no basis to reverse that award. Accordingly, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Cesar Antonio Lira

Case No.: 2019AP691-CR; 2019AP692-CR

Officials: Blanchard, Dugan and White, JJ.

Focus: Sentence Credit

Cesar Antonio Lira appeals the circuit court orders denying his motions for sentence credit on two Wisconsin sentences. Lira argues that WIS. STAT. § 973.15(5) (2017-18) requires that his sentence be credited with the time he served in the custody of Oklahoma authorities. Under the interpretation of § 973.15(5) set forth in State v. Brown, 2006 WI App 41, 289 Wis. 2d 823, 711 N.W.2d 708, we agree that Lira is eligible for sentence credit for the time he served in Oklahoma prison after Wisconsin legally returned him to Oklahoma custody. However, Lira has failed to prove that he is entitled to credit for the initial time period he spent in Oklahoma custody after his arrest there for criminal conduct committed in Oklahoma.

Additionally, Lira requests sentence credit under Wisconsin’s traditional sentence credit statutes. We conclude he is not eligible for presentence credit under WIS. STAT. § 973.155 from the date of his arrest in Oklahoma until sentencing on his Oklahoma criminal charges. We agree with Lira that he accrued sentence credit for his time in Wisconsin and Texas jails in 2005 and 2006 under WIS. STAT. §§ 304.072 and 973.155 because he was in custody partly related to the 1992 and 1999 cases. Accordingly, we affirm in part and reverse in part the orders of the circuit court and remand for proceedings consistent with this decision.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Michael D. Demars

Case No.: 2019AP892-CR

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

Focus: Ineffective Assistance of Counsel

Michael Demars appeals from a judgment convicting him of two counts of possession of child pornography and from an order denying his postconviction motion. Demars seeks to withdraw his no-contest pleas on the ground that he was afforded ineffective assistance of counsel. Specifically, Demars contends that his trial counsel should have filed a motion to suppress evidence seized pursuant to a search warrant that Demars maintains was unsupported by probable cause and contained material misstatements of fact. We reject Demars’ claims and affirm the judgment of conviction and postconviction order.

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WI Court of Appeals – District III

Case Name: Blenker Building Systems, Inc., v. James Sydow, d/b/a Town & Country Builders

Case No.: 2019AP1210

Officials: STARK, P.J.

Focus: Court Error – Contract Interpretation

Blenker Building Systems, Inc., (Blenker) appeals from a small claims judgment entered in favor of James Sydow, doing business as Town & Country Builders (Town & Country). Blenker subcontracted with Town & Country to work on a construction project, but the parties mutually terminated the contract before Town & Country could complete the work. Blenker argues the circuit court erroneously interpreted provisions in the parties’ contract, thereby improperly dismissing Blenker’s claim against Town & Country and entering a money judgment against Blenker on Town & Country’s counterclaim. We affirm.

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WI Court of Appeals – District I

Case Name: Apys Cars, Inc., v. City of Milwaukee

Case No.: 2019AP1800

Officials: Dugan, Donald and White, JJ.

Focus: Court Error – Exhaustion of Administrative Remedies

The City of Milwaukee appeals an order of the circuit court reversing a decision of the Milwaukee Common Council (Common Council) to not renew the Recycling, Salvaging, or Towing Premises license held by Apys Cars, Inc. (ACI). On appeal, the City argues that the circuit court erred in determining that the doctrine of exhaustion of administrative remedies did not “relieve the City from performing its statutory obligations” because the circuit court’s finding was based on the wrongful determination that the City did not opt out of the administrative review procedures of WIS. STAT. ch. 68. We agree.

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WI Court of Appeals – District I

Case Name: Ted B. Vallejos v. Gary Kramschuster, et al.,

Case No.: 2019AP2424

Officials: DUGAN, J.

Focus: Court Order – Contempt of Court

Gary and Sandra Kramschuster appeal the order of the Milwaukee County Circuit Court finding that Ted Vallejos purged an order of contempt by making efforts to have his child psychologically evaluated. This court concludes that the circuit court properly found Vallejos was no longer in contempt of court and affirms the circuit court’s order.

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WI Court of Appeals – District III

Case Name: Jill C. Flansburg v. William Leroy Mencel, Jr., et al.,

Case No.: 2020AP11

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

Focus: Court Error – Child Support

Jill Flansburg appeals an order reducing the monthly child support obligation owed by her former husband, William Mencel, Jr. Flansburg argues the circuit court erred by reducing Mencel’s child support obligation based upon a reduction in Mencel’s income. She contends that Mencel’s voluntary decision to reduce his income was unreasonable. We agree, and we therefore reverse the order reducing Mencel’s monthly child support obligation.

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WI Court of Appeals – District I

Case Name: Edward J. Ritger v. Estate of Douglas P. Dahm, et al.,

Case No.: 2019AP953

Officials: REILLY, P.J.

Focus: Estate – Motion for Reconsideration Denied

Edward J. Ritger appeals from a judgment entered on claims he filed against the Estate of Douglas P. Dahm (the Estate) and from an order denying his motion for reconsideration. On appeal, Ritger challenges (1) the court’s grant of a motion to enlarge the Estate’s time to object to his claim of $56,301.64, (2) the court’s finding of excusable neglect on the part of the Estate in failing to timely file its objection, and (3) the court’s award of $18,207.37 on his claim of $56,301.64. We affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Marc Schiel

Case No.: 2019AP1110-CR

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

Focus: Unlawful Seizure – Reasonable Suspicion

The State appeals a circuit court order granting Marc Schiel’s motion to suppress evidence of Schiel’s intoxication on grounds that it was derived from an unlawful seizure, unsupported by reasonable suspicion. This case arises from a police-citizen encounter that occurred when Schiel was sitting in his idling vehicle in a parking lot. The State argues that the circuit court erred in concluding that Schiel was seized when a police officer parked his squad car at least a car’s length behind Schiel’s vehicle and, without activating his squad car’s emergency lights, approached the driver’s side window to speak with Schiel. Because we agree with the State that the officer’s actions did not constitute a seizure under controlling Wisconsin Supreme Court precedent, we reverse.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Christopher L. Dominick

Case No.: 2019AP1504-CR

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

Focus: Other Acts Evidence

Christopher Dominick appeals a judgment of conviction. The issue is whether the circuit court properly admitted evidence of other acts. We affirm.

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WI Court of Appeals – District IV

Case Name: Lisa Marie Sklenar v. Bennett & Roelofs Estate Sales

Case No.: 2019AP1717

Officials: GRAHAM, J.

Focus: Statutory Interpretation – Statute of Frauds

Lisa Marie Sklenar appeals the circuit court’s decision, made at the end of a small claims trial, that Sklenar is not entitled to the relief she requested in her complaint. I affirm.

On appeal, Sklenar contends that B&R is not entitled to commission for any of the items that were sold. She does not dispute the existence of an oral agreement that B&R would sell her items and take a commission from the proceeds. She instead argues that based on WIS. STAT. § 402.201, any such agreement is unenforceable. She also renews her argument that Bennett sold the fashion items for much less than they were worth, and she argues that she is entitled to a restitution hearing to establish their value.

B&R did not contract to purchase goods from Sklenar. It instead contracted to list the goods she owned for sale to third parties, and to facilitate shipping and payment once B&R found a buyer. On its face, this appears to be a type of contract that would fall outside the scope of WIS. STAT. § 402.201, and Sklenar does not cite any law or develop any argument to the contrary. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (the court need not address undeveloped legal arguments on appeal).

Turning to Sklenar’s argument regarding the value of the fashion items, the sole evidence she offered at trial was the amount that she originally paid for these items in 2010 and 2017. The circuit court determined that this evidence was insufficient to establish their value at the time they were sold in 2018, and Sklenar does not argue that this determination is erroneous. She instead asserts that she should have been given the opportunity for a “restitution hearing” so that she could prove the value of the fashion items. Putting aside that it is not clear whether restitution would be an appropriate remedy for the claims advanced in the complaint, Sklenar’s opportunity to present evidence of her damages was during the small claims hearing.

Finally, turning to the Hyundai, the circuit court found that Sklenar did not pay any commission for the car. Sklenar does not argue that this finding is clearly erroneous until her reply brief, and appellate courts typically decline to address arguments that are raised for the first time in a reply brief. State v. Reese, 2014 WI App 27, 353 Wis. 2d 266, 274 n.2, 844 N.W.2d 396. But even if I were to consider this argument, disregard the court’s finding of fact, and determine that B&R did collect a $500 commission from Sklenar for the Hyundai, Sklenar does not show why that fact would matter. Sklenar has advanced just one argument to support her assertion that B&R is not entitled to a commission for the Hyundai— that the oral agreement was unenforceable under WIS. STAT. § 402.201—and I have already rejected this argument for reasons explained above.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Houadou T. Yang

Case No.: 2019AP1730-CR

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

Focus: Unlawful-stop Claim – Reasonable Suspicion

The State of Wisconsin appeals a circuit court order granting Houadou Yang’s motion to suppress evidence derived from a stop of Yang’s vehicle. We agree with the State that police lawfully extended the stop to conduct a drug sniff of Yang’s vehicle based on their reasonable suspicion that Yang was involved in illegal drug activity. We reverse the suppression order and remand for further proceedings consistent with this opinion.

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WI Court of Appeals – District IV

Case Name: Portage County v. E.R.R.,

Case No.: 2020AP870-FT

Officials: FITZPATRICK, P.J.

Focus: Involuntary Commitment – Sufficiency of Evidence

E.R.R. appeals orders of the Portage County Circuit Court extending his involuntary commitment and requiring E.R.R. to undergo treatment and take prescribed medication pursuant to WIS. STAT. ch. 51. E.R.R. contends that, in regard to the extension of the involuntary commitment, Portage County failed to establish by clear and convincing evidence that he is “dangerous,” as required by WIS. STAT. § 51.20(1)(a)2., (1)(am), and (13)(e) and (g)3. I agree with E.R.R. that the evidence is insufficient to support the circuit court’s order extending E.R.R.’s involuntary commitment and reverse that order as well as the order for involuntary treatment and medication, and remand with directions that those two orders be vacated.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Office of Lawyer Regulation v. Jean M. Robinson

Case No.: 2020 WI 76

Focus: Attorney Disciplinary Hearing

The Office of Lawyer Regulation (OLR) and Attorney Jean M. Robinson have filed a stipulation pursuant to Supreme Court Rule (SCR) 22.12 that Attorney Robinson’s license to practice law in Wisconsin should be suspended for a period of 18 months, as discipline reciprocal to that imposed by the District of Columbia Court of Appeals.

After reviewing the matter, we approve the stipulation and impose the stipulated reciprocal discipline. In addition, we grant Attorney Robinson’s unopposed motion to make the effective date of the Wisconsin suspension coterminous with the imposed date of suspension of the District of Columbia Court of Appeals, i.e. June 3, 2019. The OLR did not request and we impose no restitution. Finally, because Attorney Robinson entered into a comprehensive stipulation prior to the appointment of a referee, we do not impose costs.

Attorney’s license suspended

Concur:

Dissent:

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WI Supreme Court

Case Name: Office of Lawyer Regulation v. Coral Dawn Pleas

Case No.: 2020 WI 77

Focus: Attorney Disciplinary Hearing

We review the stipulation filed by the Office of Lawyer Regulation (OLR) and Attorney Coral Dawn Pleas pursuant to Supreme Court Rule (SCR) 22.12. On April 10, 2020, the OLR filed a complaint in this court alleging eight counts of misconduct against Attorney Pleas. Attorney Pleas did not file an answer. Instead, she and the OLR filed a stipulation in which Attorney Pleas admitted the facts and the misconduct alleged in the OLR’s complaint and agreed to the level of discipline sought by the OLR: a six-month suspension of Attorney Pleas’ license to practice law in Wisconsin.

We approve the stipulation and adopt the stipulated facts and conclusions regarding Attorney Pleas’ eight counts of misconduct as alleged in the OLR’s complaint. We determine that the seriousness of Attorney Pleas’ misconduct warrants the suspension of her license to practice law in the state for a period of six months. In addition, we agree that Attorney Pleas should be required to pay $8,333.33 in restitution. Because Attorney Pleas entered into a comprehensive stipulation under SCR 22.12, thereby obviating the need for the appointment of a referee and a full disciplinary proceeding, we impose no costs in this matter.

Attorney’s license suspended

Concur:

Dissent:

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WI Supreme Court

Case Name: Office of Lawyer Regulation v. Guy Norman Maras

Case No.: 2020 WI 78

Focus: Attorney Disciplinary Hearing

The Office of Lawyer Regulation (OLR) and Attorney Guy Norman Maras have filed a stipulation pursuant to Supreme Court Rule (SCR) 22.12 that Attorney Maras’ license to practice law in Wisconsin should be suspended for a period of six months, as discipline reciprocal to that imposed by the Supreme Court of Illinois. After reviewing the matter, we approve the stipulation and impose the stipulated reciprocal discipline. In addition, as the parties also stipulated, we find it appropriate to order Attorney Maras to comply with the terms and conditions of the Illinois disciplinary order. Since this matter was resolved by means of a stipulation, without the need for the appointment of a referee, we impose no costs.

Attorney’s license suspended

Concur:

Dissent:

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