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Weekly Case Digests – January 25, 2021 – January 29, 2021

By: Derek Hawkins//January 29, 2021//

Weekly Case Digests – January 25, 2021 – January 29, 2021

By: Derek Hawkins//January 29, 2021//

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7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Raven Fox v. Dakkota Integrated Systems, LLC ,

Case No.: 20-2782

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

Focus: Class Action Fairness Action Violation – Article III Standing

As its name suggests, the Illinois Biometric Information Privacy Act (“BIPA” or “the Act”) protects a person’s privacy interests in his biometric identifiers, including fingerprints, retina and iris scans, hand scans, and facial geometry. See 740 ILL. COMP. STAT. 14/1 et seq. (2008). Section 15 of the Act comprehensively regulates the collection, use, retention, disclosure, and dissemination of biometric identifiers. Id. § 14/15. Section 20 provides a right of action for persons aggrieved by a violation of the statute. Id. § 14/20.

This appeal requires us to decide a question of Article III standing for a claimed violation of section 15(a), which requires a private entity in possession of biometric data to develop, publicly disclose, and implement a retention schedule and guidelines for destroying the data when the initial purpose for collection ends. Id. § 14/15(a). In Bryant v. Compass Group USA, Inc., we addressed standing to sue for two BIPA claims: (1) a violation of section 15(b), the Act’s informed-consent provision; and (2) a violation of one part of section 15(a)—namely, the duty to publicly disclose a data-retention policy. 958 F.3d 617, 619 (7th Cir. 2020). We held that the plaintiff had standing to pursue the section 15(b) claim, but our view of the section 15(a) claim was different. Id. at 626. The plaintiff had not alleged any concrete and particularized harm from the defendant’s failure to publicly disclose a data-retention policy, so we held that she lacked standing on that claim. Id. The latter holding was quite limited. We cautioned that our analysis was confined to the narrow violation the plaintiff alleged; we did not address standing requirements for claims under other parts of section 15(a).

This appeal raises the question reserved in Bryant. Raven Fox filed a proposed class action in state court alleging that Dakkota Integrated Systems, her former employer, collected, used, retained, and disclosed her handprint for its timekeeping system. She raised several claims under BIPA, but the one that concerns us here accuses Dakkota of violating section 15(a). Dakkota removed the case to federal court under the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1453, and moved to dismiss the claims as preempted by federal labor law. The district judge read Bryant to foreclose Article III standing for section 15(a) claimants, so he remanded that claim to state court and dismissed the others.

The remand order was a mistake. Unlike in Bryant, Fox’s section 15(a) claim does not allege a mere procedural failure to publicly disclose a data-retention policy. Rather, Fox alleges a concrete and particularized invasion of her privacy interest in her biometric data stemming from Dakkota’s violation of the full panoply of its section 15(a) duties—the duties to develop, publicly disclose, and comply with data retention and destruction policies—resulting in the wrongful retention of her biometric data after her employment ended, beyond the time authorized by law. These allegations suffice to plead an injury in fact for purposes of Article III. The invasion of a legally protected privacy right, though intangible, is personal and real, not general and abstract. Because the section 15(a) claim was properly in federal court, we reverse the remand order and return the case to the district court for consideration of the preemption question.

Reversed and remanded

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7th Circuit Court of Appeals

Case Name: Charmell Brown v. Alex Jones, Acting Warden,

Case No.: 19-3172

Officials: FRANK H. EASTERBROOK, Circuit Judge DANIEL A. MANION, Circuit Judge MICHAEL S. KANNE, Circuit Judge.

Focus: Order Amending Opinion

It is ORDERED that the opinion in this case issued October 21, 2020, is amended as follows: In the first line of the first sentence of the first paragraph under “I. BACKGROUND” on page two, strike “three counts” and replace that phrase with “one count”. Further, on consideration of the petition for rehearing and rehearing en banc, no judge in active service has requested a vote on the petition for rehearing en banc and all members of the original panel have voted to deny rehearing. It is, therefore, ORDERED that rehearing and rehearing en banc are DENIED.

Denied

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7th Circuit Court of Appeals

Case Name: United States of America v. Kurt Johnson

Case No.: 19-2718

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

Focus: Plea & Sentencing – Waiver of Counsel

Kurt Johnson elected to represent himself at trial on federal fraud charges. In Johnson’s own telling, he fared at trial “like a bug under a hard-stomping prosecution boot heel”—which is to say he lost. Johnson now appeals his waiver of counsel. He says the district court failed to confirm that his decision to waive counsel was knowing and intelligent. We agree that the district court’s colloquy with Johnson was lacking, but we nonetheless uphold Johnson’s waiver of counsel. This was not Johnson’s first rodeo—as he himself told the district court. In fact, Johnson had previously represented himself at a federal fraud trial, lost, and then unsuccessfully appealed that waiver of counsel. Given this history, and Johnson’s separate and more thorough colloquy with the magistrate judge in this case, we cannot conclude that Johnson’s decision to forgo counsel the second time around was uninformed. We also reject Johnson’s challenge to the district court’s sentencing explanation. We thus affirm his conviction and sentence.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Adel Daoud

Case No.: 19-2174; 19-2185; 19-2186

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

Focus:  Plea & Sentencing – Alford Plea

Adel Daoud pressed the button to detonate a bomb that would have killed hundreds of innocent people in the name of Islam. Fortunately, the bomb was fake, and the FBI arrested him on the spot. Two months later, while in pretrial custody, Daoud solicited the murder of the FBI agent who supplied the fake bomb. Two and a half years later, while awaiting trial on the first two charges, Daoud tried to stab another inmate to death using makeshift weapons after the inmate drew a picture of the Prophet Muhammad. Daoud eventually entered an Alford plea, and the cases were consolidated for sentencing. The district court sentenced Daoud to a combined total of 16 years’ imprisonment for the crimes. The government appeals that sentence on the ground that it was substantively unreasonable. We agree. We vacate the sentence and remand for resentencing.

Vacated and remanded

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7th Circuit Court of Appeals

Case Name: Epic Systems Corp., v. Tata Consultancy Services LTD., et al.,

Case No.: 19-1528; 19-1613

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

Focus: Punitive Damages

Without permission from Epic Systems, Tata Consultancy Services (“TCS”) downloaded, from 2012 to 2014, thousands of documents containing Epic’s confidential information and trade secrets. TCS used some of this information to create a “comparative analysis”—a spread‐ sheet comparing TCS’s health‐record software (called “Med Mantra”) to Epic’s software. TCS’s internal communications show that TCS used this spreadsheet in an attempt to enter the United States health‐record‐software market, steal Epic’s client, and address key gaps in TCS’s own Med Mantra soft‐ ware.

Epic sued TCS, alleging that TCS unlawfully accessed and used Epic’s confidential information and trade secrets. A jury ruled in Epic’s favor on all claims, including multiple Wisconsin tort claims. The jury then awarded Epic $140 million in compensatory damages, for the benefit TCS received from using the comparative‐analysis spreadsheet; $100 million for the benefit TCS received from using Epic’s other confidential in‐ formation; and $700 million in punitive damages for TCS’s conduct.

Ruling on TCS’s motions for judgment as a matter of law, the district court upheld the $140 million compensatory award and vacated the $100 million award. It then reduced the punitive‐damages award to $280 million, reflecting Wisconsin’s statutory punitive‐damages cap. Both parties ap‐ pealed different aspects of the district court’s rulings.

We agree with the district court that there is sufficient evidence for the jury’s $140 million verdict based on TCS’s use of the comparative analysis, but not for the $100 million verdict for uses of “other information.” We also agree with the district court that the jury could punish TCS by imposing punitive damages. But the $280 million punitive‐damages award is constitutionally excessive, so we remand to the district court with instructions to reduce the punitive‐damages award.

Vacated and remanded

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7th Circuit Court of Appeals

Case Name: United States of America v. Devin Dawson

Case No.: 20-1233

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

Focus: Sentencing Guidelines – Supervised Release

Devin Dawson violated the conditions of his supervised release after his release from prison. One of Dawson’s violations was possessing a loaded, semiautomatic firearm. That violation separately resulted in state criminal charges. The state charges were still pending when the federal district court in this case revoked Dawson’s supervised release and imposed a new 24-month prison term. On appeal, Dawson says the district court chose its 24-month sentence—the statutory maximum—to punish him for possessing the firearm, when it should have focused on his breach of the court’s trust and left any punishment to the state-court system. He also submits that the court disregarded his mitigation arguments and the relevant sentencing factors, and that the sentence was plainly unreasonable. We see no error and affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Fadeel Shuhaiber v. Illinois Department of Corrections

Case No.: 19-3244

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

Focus: Immigration – Appellate Filling Fee

Fadeel Shuhaiber is confined to a wheelchair. Following the district court’s dismissal of claims he brought against the Illinois Department of Corrections under the Americans with Disabilities Act and Rehabilitation Act, Shuhaiber appealed and, based on his impoverished status, sought permission to proceed on appeal without prepaying the requisite filing fee. By the time he filed the appeal, Shuhaiber, a native of the United Arab Emirates, had been transferred to the custody of the Department of Homeland Security for removal from the United States. The change in custody matters because Shuhaiber, as a frequent filer of federal lawsuits, had accumulated more than three strikes under the Prison Litigation Reform Act for filing frivolous lawsuits, and therefore would have had to prepay the filing fee to appeal the district court’s dismissal of his claims. Doubting that Shuhaiber was still a “prisoner,” the district court granted his motion to proceed in forma pauperis.

We agree and hold, in alignment with all other circuits to have addressed the question, that the appellate filing-fee bar does not apply where, as here, the appellant is being held by immigration authorities and thus no longer is a “prisoner” within the meaning of the PLRA. That conclusion does not lead very far for Shuhaiber, however, as the district court was also right to dismiss his claims, leaving us to affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Paul Elmer

Case No.: 19-2890

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

Focus: Sufficiency of Evidence – Sentencing

Paul Elmer owned and operated multiple healthcare-related companies including Pharmakon Pharmaceuticals. His pharmacy produced and distributed drugs that Elmer knew were dangerous. Rather than halting manufacturing or recalling past shipments, sales continued and led to the near death of an infant. Federal charges followed for Elmer’s actions in preparing and selling drugs that contained more or less of their active ingredient than advertised. A jury returned a guilty verdict on all but one count. Elmer now appeals several of the district court’s rulings related to the evidence admitted at trial and his sentence. The evidence before the jury overwhelmingly proved Elmer’s guilt. And the district court’s imposition of a sentence of 33 months’ imprisonment was more than reasonable given the gravity of Elmer’s crimes. We therefore affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Tequila J. Gunn

Case No.: 20-1959

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

Focus: Sentencing Guidelines – Compassionate Release

Federal judges have long been able to release prisoners for compassionate reasons such as terminal illness. Until recently that authority depended on a motion by the Bureau of Prisons. But in 2018 the First Step Act created a judicial power to grant compassionate release on a prisoner’s own request, provided that the prisoner first allowed the Bureau to review the request and make a recommendation (or it let 30 days pass in silence). 18 U.S.C. §3582(c)(1)(A). Subsection (c) now reads: The court may not modify a term of imprisonment once it has been imposed except that— (1) in any case— (A) the court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility, whichever is earlier, may reduce the term of imprisonment (and may impose a term of probation or supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment), after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that— (i) extraordinary and compelling reasons warrant such a reduction; or (ii) the defendant is at least 70 years of age, has served at least 30 years in prison, pursuant to a sentence imposed under section 3559(c), for the offense or offenses for which the defendant is currently imprisoned, and a determination has been made by the Director of the Bureau of Prisons that the defendant is not a danger to the safety of any other person or the community, as provided under section 3142(g); and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission[.]

Tequila Gunn’s sentence for drug and firearm offenses runs through March 2024. She asked a court to order her release under §3582(c)(1)(A) on the ground that, because of her age (62) and medical condition, she faces extra risks should she contract COVID-19. Gunn sought administrative relief but came to court before the Director had replied or 30 days had run. Yet on appeal the United States has not invoked the statute’s exhaustion requirement, thus forfeiting its benefit. Failure to exhaust administrative remedies is an affirmative defense, see Jones v. Bock, 549 U.S. 199, 216 (2007); Weinberger v. Salfi, 422 U.S. 749, 767 (1975), not a jurisdictional issue that the court must reach even if the litigants elect not to raise it. It is true that a judge acting on a prisoner’s motion may lack the advice of the Director, contemplated by Application Note 1(D), about whether some novel “extraordinary and compelling reason” exists. Yet the First Step Act does not muzzle the Director; to the contrary, it gives the Director at least 30 days to articulate the Bureau of Prisons’ decision and rationale. We expect that district judges will give the Director’s analysis substantial weight, even though under the First Step Act the Director’s views are not controlling.

Like the district court, we hope that the Sentencing Commission’s ability to revise its guidelines and policy statements will be restored by the appointment of additional members. Until that happens and §1B1.13 is amended, however, the Guidelines Manual lacks an “applicable” policy statement covering prisoner-initiated applications for compassionate release. District judges must operate under the statutory criteria—”extraordinary and compelling reasons”—subject to deferential appellate review. The district court’s decision is vacated, and the case is remanded with instructions to resolve Gunn’s motion under the statutory standard.

Vacated and remanded

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7th Circuit Court of Appeals

Case Name: Xuejun Makhsous v. Pam Daye

Case No.: 20-1624

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

Focus: Court Error – Summary Judgment

This is a case of a disgruntled entrepreneur trying to spin her business difficulties into constitutional claims. But Plaintiff has not succeeded. We therefore affirm the district court’s decision granting summary judgment to Defendant.

Affirmed

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7th Circuit Court of Appeals

Case Name: Nathson Fields v. City of Chicago, et al.,

Case No.: 17-3079; 17-3125; 18-1207

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

Focus: Sufficiency of Evidence

These appeals stem from an action brought in 2010 by Nathson Fields, asserting claims under 42 U.S.C. § 1983 and state law against the City of Chicago and individuals including several Chicago police officers as well as two former Cook County prosecutors. The lawsuit alleged that the defendants violated Fields’s constitutional rights as well as state law in their actions in fabricating evidence and withholding exculpatory evidence in a criminal investigation that resulted in Fields’s conviction for murder. After a retrial that resulted in an acquittal, Fields filed this civil suit, and the jury entered an award in his favor on a number of grounds. Two individual defendants, Chicago Police Detectives David O’Callaghan and Joseph Murphy, and the City of Chicago, now appeal.

Our review is a narrow one. Jury verdicts are accorded great respect, and on review we consider whether the evidence presented to the jury was legally sufficient to support the verdict against the City. J.K.J., 960 F.3d at 378. In making that determination, we do not reweigh evidence, assess witness credibility, or otherwise usurp the role of the jury as factfinder, and we give the nonmovant the benefit of every inference. Id.; Ruiz-Cortez v. City of Chicago, 931 F.3d 592, 601 (7th Cir. 2019). “To the contrary, we must affirm unless there is ‘no legally sufficient evidentiary basis for a reasonable jury to find for the non-moving party.’” Id., quoting Woodward v. Corr. Med. Servs. of Ill., Inc., 368 F.3d 917, 926 (7th Cir. 2004).

Here, the district court properly recognized that “street files” were utilized by law enforcement officers and that a jury could find from the evidence introduced by Fields that there was a “systemic underproduction of exculpatory materials to prosecutors and defense counsel.” Corrected Op. at 7 n. 8. The City argues that it was not enough for Fields to produce evidence of ongoing use of street files in which investigative materials were withheld, but Fields must also demonstrate that the withheld evidence would have affected the outcome of the criminal trial. Although knowledge of the risk of constitutional violations is necessary for Monell liability, the City’s knowledge of that risk is unquestionable in this case. As the district court recognized, the City was aware as a result of prior litigation that the use of street files and the failure to ensure the production of the evidence within those files presented a constitutional problem. In Jones, 856 F.2d at 996, we recognized that the custom of the maintenance of street files was department-wide and of long standing, and that a jury could therefore conclude it was consciously approved at the highest policy-making level for decisions involving the police department. See also Palmer v. City of Chicago, 755 F.2d 560 (7th Cir. 1985). In fact, the City in Jones did not even contest that the use of such a practice presented a due process problem, although the City represented it had abandoned the practice. Id. at 995. The evidence presented in this case – that such street files were still being used and that exculpatory evidence from such files was still being withheld in criminal cases – allowed a jury to conclude that the City had failed to take the necessary steps to address that unconstitutional practice. Accordingly, the district court did not err in determining that there was a legally sufficient evidentiary basis for a reasonable jury to find for Fields on the issue of Monell liability.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Leroy Stanton, Jr.,

Case No.: 2018AP902-CR

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

Focus: Ineffective Assistance of Counsel

Leroy Stanton, Jr. appeals a judgment of conviction, following a jury trial, of one count of second-degree sexual assault and one count of substantial battery. Stanton also appeals the postconviction orders denying his motion for relief on the basis of ineffective assistance of counsel. Upon review, we affirm.

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WI Court of Appeals – District I

Case Name: US Bank NA v. Tamara D. Tellock, et al.,

Case No.: 2019AP378

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

Focus: Admittance of Evidence – Emotional Distress Damages

Tamara D. Tellock appeals the judgment entered by the Milwaukee County Circuit Court reinstating a loan modification agreement Tellock entered into with US Bank.  On appeal, Tellock argues that the circuit court erred when it (1) prohibited her from introducing evidence of emotional distress damages and (2) ordered that accrued interest owed by Tellock be added to the total amount due under the reinstated agreement.

We conclude that the circuit court properly prohibited Tellock from introducing evidence of emotional distress damages because damages for emotional distress are not recoverable for a violation of WIS. STAT. § 224.77(1) (2017-18). We also conclude that the order adding accrued interest to the total amount due under the reinstated agreement is not properly before this court and, therefore, we decline to address this issue.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Andre L. Scott

Case No.: 2019AP623-CR

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

Focus: Court Error – Abuse of Discretion

Andre L. Scott appeals the judgment convicting him, following a jury trial, of two counts of battery, disorderly conduct, and kidnapping. He also appeals the postconviction order denying him relief regarding his competency at trial and at sentencing.

Scott argues that the trial court violated his Fourteenth Amendment right to procedural due process by failing to conduct a competency hearing sua sponte during the trial and at sentencing because the record of those proceedings shows reason to doubt Scott’s competence during those proceedings.

A court must order a competency exam when there is “reason to doubt a defendant’s competency to proceed.” WIS. STAT. § 971.14(1r)(a) (2017- 18). We conclude that the trial court did not erroneously exercise its discretion in finding that there was no reason to doubt Scott’s competency at trial; however, we conclude that it did erroneously exercise its discretion in finding that there was no reason to doubt Scott’s competency at sentencing and, therefore, the trial court was obligated to order a competency examination prior to proceeding to sentencing. Accordingly, we reverse that portion of the postconviction order regarding Scott’s competency at sentencing and remand the matter for the trial court to determine whether there can be a meaningful retrospective competency hearing regarding Scott’s competency at the sentencing. If a meaningful hearing cannot be conducted, the trial court shall vacate the sentence and proceed with a new sentencing hearing. We affirm the postconviction order regarding Scott’s competency at trial.

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Bruce Terrell Davis

Case No.: 2019AP761-CR

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

Focus: 6th Amendment Violation – Confrontation Clause

Bruce Terrell Davis appeals the judgment convicting him, upon the jury’s guilty verdicts, of armed robbery with threat of force and burglary of a building or dwelling. Davis argues that the trial court denied Davis his right to confrontation by not allowing trial counsel to fully cross-examine one of the State’s witnesses, D.V. We are not persuaded and, therefore, we affirm the judgment.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Daniel J. Van Linn

Case No.: 2019AP1317-CR

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

Focus: Warrantless Search – Suppression of Evidence – Blood Test

Daniel Van Linn appeals a judgment of conviction for fifth-offense operating a motor vehicle while intoxicated (OWI). Van Linn was injured in an automobile accident. A police officer noted that he smelled of intoxicants, and Van Linn admitted to drinking “a couple of beers.” After Van Linn was transported to a hospital, a police officer took a warrantless blood sample from him, which the circuit court subsequently deemed an unlawful search and suppressed as evidence. The court later signed a subpoena from the State seeking medical records from Van Linn’s treatment providers at the hospital, which revealed that those providers had taken a second blood sample from Van Linn for diagnostic purposes. The court denied Van Linn’s motion to suppress the diagnostic blood evidence, and Van Linn appeals that determination.

We conclude the circuit court properly denied Van Linn’s suppression motion. The diagnostic blood evidence was obtained independent of the earlier, unlawful blood draw, and we conclude the independent source doctrine applies under the circumstances here. We reject Van Linn’s arguments to the contrary and affirm.

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WI Court of Appeals – District III

Case Name: Vilas County Department of Human Services v. N.J.P.,

Case No.: 2019AP1567

Officials: SEIDL, J.

Focus: Involuntary Medication

John appeals orders committing him to inpatient treatment and involuntary medication for a period of six months. He argues the Vilas County Department of Human Services (the Department) failed to establish by clear and convincing evidence that he is dangerous under any of the five standards set forth by WIS. STAT. § 51.20(1)(a)2. We agree with the circuit court that there is clear and convincing evidence that John is dangerous under the fourth standard, § 51.20(1)(a)2.d.—i.e., he “[e]vidence[d] such impaired judgment, manifested by evidence of a pattern of recent acts or omissions, that there is a substantial probability of physical impairment or injury to himself ….” Therefore, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Oshay Shayfer Randolph

Case No.: 2019AP1750-CR

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

Focus: Plea Withdrawal

Oshay Shayfer Randolph appeals the judgment of conviction, following guilty pleas, to one count of felony murder and one count of attempted burglary, both as a party to a crime. Randolph contends that the circuit court erred in denying his presentence motion for plea withdrawal. Upon review, we affirm.

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WI Court of Appeals – District I

Case Name: Petitioner v. Jamal Cannon

Case No.: 2019AP1980

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

Focus: Motion for Reconsideration Denied – Newly Discovered Evidence

Jamal Cannon appeals an injunction order granted in favor of the Petitioner, and the denial of a motion for reconsideration. Cannon argues the circuit court erred by denying his request for a new reconsideration hearing based on newly discovered evidence. Upon review, we affirm.

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WI Court of Appeals – District I

Case Name: Andrea Townsend v. ChartSwap, LLC,

Case No.: 2019AP2034

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

Focus: Statutory Interpretation – Health Care Provider Recorder Fees

Andrea Townsend appeals an order of the circuit court dismissing her action against ChartSwap, LLC. At issue on appeal is whether ChartSwap may be held liable for violating WIS. STAT. § 146.83(3f)(b) (2017-18),  which limits the amount that a health care provider can charge for furnishing copies of patient care records. Upon review, we reverse and remand.

Recommended for Publication

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Richard L. Pringle

Case No.: 2020AP6-CR

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

Focus: Sufficiency of Evidence – Expert Testimony

Richard Pringle appeals a judgment convicting him of one count of second-degree sexual assault of a person who suffers from a mental illness or deficiency, contrary to WIS. STAT. § 940.225(2)(c) (2017-18). Pringle also appeals an order denying his motion for postconviction relief. Pringle argues he is entitled to a new trial in the interest of justice because the real controversy was not fully tried during his jury trial. Specifically, he contends that the State’s expert witness improperly vouched for the victim’s credibility, contrary to State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1984), and that the expert’s testimony therefore clouded a crucial issue in the case—namely, the victim’s credibility.

Although this is a close case, we ultimately conclude that Pringle is not entitled to a new trial in the interest of justice. The State’s expert witness testified, generally, that in her experience individuals with cognitive or developmental disabilities often lack the sophistication necessary to “feign a situation” or “concoct a story.” The expert witness did not expressly testify, however, that she believed the victim was telling the truth or that the victim, specifically, was incapable of fabricating her account of the sexual assault. On these facts, we conclude the effect of the expert witness’s testimony was not to attest to the victim’s truthfulness, and the testimony did not create too great a possibility that the jury abdicated its fact-finding role to the expert witness or failed to independently determine Pringle’s guilt. As such, we reject Pringle’s argument that the admission of the expert witness’s testimony prevented the real controversy from being fully tried. We therefore affirm Pringle’s judgment of conviction and the order denying postconviction relief.

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WI Court of Appeals – District II

Case Name: Dianne DeGroot v. Town of Wolf River

Case No.: 2019AP35

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

Focus: Summary Judgment – Quit Claim Deed

Dianne DeGroot appeals from a judgment dismissing her complaint against the Town of Wolf River seeking to quiet title and a declaration that she owns her property free of any claim of Wolf River relating to a public roadway (the road) referred to in her quit claim deed. In the alternative, DeGroot seeks to recover property taxes attributable to the road or to be compensated for Wolf River’s allegedly wrongful taking of her property. Rejecting DeGroot’s premise that Wolf River abandoned the road, the circuit court dismissed DeGroot’s complaint on summary judgment. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Tremaine J. Brown

Case No.: 2019AP1251-CR

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

Focus: Sentence Modification

Tremaine J. Brown appeals from a judgment convicting him of possession with intent to deliver less than or equal to one gram of a controlled substance within 1000 feet of a park and from the order denying his motion for postconviction relief by which he sought sentence modification. He alleges that six new factors warrant sentence modification. We disagree and affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin ex rel., City of Waukesha v. City of Waukesha Board of Review, et al.,

Case No.: 2019AP1479

Officials: Neubauer, C.J., Gundrum and Davis, JJ.

Focus: Tax Assessment Appeal

The issue is whether the City of Waukesha (City) may appeal from a tax assessment determination by the City of Waukesha Board of Review (Board), which rejected the City assessor’s evaluation, by commencing a certiorari action under WIS. STAT. § 70.47(13) (2017-18).

After the taxpayer, Salem United Methodist Church (Church) received a favorable decision from the Board, the City sought statutory certiorari review; the circuit court issued the writ; and the Board moved to quash the writ and dismiss the case on the grounds that the City lacked authority to seek certiorari review and, in any event, that the Board satisfied the certiorari standards. The court denied the motion, reasoning that the City had authority to seek review under WIS. STAT. § 70.47(13), and the Board’s decision failed to satisfy any of the certiorari standards. We conclude that § 70.47(13) does not authorize the City to commence a certiorari action.  Because the statute did not empower the City to appeal from the Board’s determination, we reverse and remand with directions to the circuit court to quash the writ and dismiss the action.

Recommended for Publication

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Frank P. Smogoleski

Case No.: 2019AP1780-CR

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

Focus: Admittance of Evidence – Other-acts Evidence 

Frank P. Smogoleski was charged with second-degree sexual assault of a person under the influence of an intoxicant. At Smogoleski’s preliminary examination, Jon testified that he saw a naked Smogoleski on top of an intoxicated, asleep seventeen-year-old female whose pants and underwear were around her ankles. Jon passed away a month later. The State appeals, pursuant to WIS. STAT. § 974.05(1)(d)2., from two pretrial orders of the circuit court denying the State’s motions to admit Jon’s preliminary examination testimony at trial and to admit other-acts evidence. As we conclude that Smogoleski’s Sixth Amendment Confrontation Clause rights will not be violated by admitting Jon’s preliminary examination testimony at trial and we agree with the State that the circuit court erred in denying the State’s other-acts motion, we reverse and remand for further proceedings consistent with this decision.

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WI Court of Appeals – District II

Case Name: Cristian M Loga-Negru v. Patricia Hanson, et al.,

Case No.: 2020AP738

Officials: NEUBAUER, C.J.

Focus: Small Claims – Replevin

On April 26, 2019, Cristian M. Loga-Negru filed a small claims replevin action against the Racine County District Attorney Patricia Hanson and multiple individuals, seeking return of numerous items seized following his arrest for several felony offenses and retained by the Mount Pleasant Police Department. At a hearing at which Hanson appeared to address his complaint, it was determined that multiple items would be returned to Loga-Negru, but that others would not, because his criminal appeal was still pending. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Timothy M. Argall

Case No.: 2020AP907-CR

Officials: GUNDRUM, J.

Focus: OWI – 3rd Offense

Timothy M. Argall appeals from a judgment of conviction for operating a motor vehicle while intoxicated (OWI), third offense. We affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Philip J. Hawley

Case No.: 2015AP1113-CR

Officials: Blanchard, Kloppenburg, and Nashold, JJ.

Focus: Suppression of Evidence – Exclusionary Rule 

This appeal arises from a 2013 warrantless blood draw from Philip Hawley that police ordered while Hawley was unconscious in the hospital following a motorcycle crash. Hawley argues that the blood draw was an unlawful search in violation of the Fourth Amendment and that the evidence obtained from the blood draw should be suppressed under the exclusionary rule. He also argues that provisions in Wisconsin’s implied consent law that permit warrantless blood draws from an unconscious suspect are unconstitutional. We agree with Hawley regarding the unconstitutionality of the implied consent provision at issue in this case, but conclude that the good-faith exception to the exclusionary rule precludes suppression of the evidence. We therefore affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Joshua S. Gehde

Case No.: 2019AP1765-CR

Officials: Kloppenburg, Graham, and Nashold, JJ.

Focus: Ineffective Assistance of Counsel

Joshua Gehde appeals a judgment of conviction for first-degree reckless homicide and an order denying his post-conviction motion. Gehde argues that his two trial attorneys were ineffective by failing to present a consistent defense. He asserts that one of his attorneys presented arguments in opening statements and cross-examination of the State’s lay witnesses that conflicted and were inconsistent with the evidence presented by his other attorney through testimony by the defense expert witnesses. For the reasons explained below, we conclude that Gehde’s trial counsel were not ineffective. We affirm.

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WI Court of Appeals – District IV

Case Name: Mark S. Diamond v. Office of the Commissioner of Insurance

Case No.: 2020AP99

Officials: Blanchard, Kloppenburg, and Graham, JJ.

Focus: Sufficiency of Evidence – Restitution

Mark Diamond appeals an order affirming a decision of the Wisconsin Office of the Commissioner of Insurance. The Commissioner determined that Diamond violated various statutory and regulatory provisions that govern the conduct of insurance intermediaries. Specifically, as pertinent to the issues raised on appeal, the Commissioner determined that Diamond, an insurance intermediary: (1) advertised a free retirement workshop that misled Wisconsin consumers by implication and omission in violation of WIS. STAT. § 628.34(1)(a) (2017-18) and WIS. ADMIN. CODE § Ins 2.16(5)(a) (through October 2020);  and (2) recommended an insurance product transaction without “reasonable grounds to believe that the recommendation [was] suitable for the consumer” in violation of WIS. STAT. § 628.347(2)(a). As sanctions, the Commissioner ordered that Diamond pay a forfeiture and restitution and revoked his nonresident insurance agent license. The circuit court affirmed the Commissioner’s decision except that it reduced the forfeiture imposed.

On appeal, Diamond argues that the Commissioner erred in determining that the advertisement was misleading and that Diamond made an unsuitable recommendation, that the Commissioner improperly imposed the forfeiture even as reduced by the circuit court, and that the Commissioner’s calculation of restitution was not supported by substantial evidence in the record.  We conclude that substantial evidence supports the Commissioner’s determinations of violations consistent with the applicable statutes and that Diamond fails to show that the Commissioner or the circuit court improperly imposed the reduced forfeiture or that substantial evidence does not support the Commissioner’s calculation of restitution. Accordingly, we affirm.

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WI Court of Appeals – District IV

Case Name: Eunice L. Poteete, et al., v. Nancy Wales

Case No.: 2020AP741

Officials: BLANCHARD, J.

Focus: Appellate Jurisdiction

Eunice and Larry Poteete (the tenants) appeal a March 2020 order of the circuit court in their action against Nancy Wales (the landlord). The tenants’ action primarily arose out of a dispute over the landlord’s return, or failure to return, some or all of the tenants’ security deposit. After a trial to the circuit court, the court issued an August 2019 order granting a judgment largely in the tenants’ favor. The tenants filed a post-judgment motion seeking an amended judgment that would increase their damages on two grounds, which are the two arguments that they now attempt to renew on appeal: (1) the circuit court erred in making determinations about the timing of lease termination and about when the landlord learned that the tenants had vacated the unit; and (2) the court should have awarded the tenants their actual attorney fees and costs. The court denied the post-judgment motion in March 2020.

After the tenants initiated this appeal, this court issued an order identifying the need for the parties to address appellate jurisdiction. The order observed that the tenants had filed their notice of appeal from the March 2020 order only after the time to appeal the August 2019 order granting the judgment had expired. The order of this court explained that the timing of the notice of appeal may deprive this court of jurisdiction to consider the appeal. For this reason, the order directed the parties to make the threshold issue of jurisdiction the first topic in their appellate briefing. The tenants inexplicably failed to follow this order, but the landlord did follow it, submitting a facially valid argument that this court lacks jurisdiction.

I conclude under all of the circumstances that it is appropriate to deem the tenants to have forfeited their argument that this court has jurisdiction to address their appeal from the March 2020 order. Only in their reply brief do the tenants offer any jurisdictional argument, which comes too late to give the landlord a fair chance to address it, and even then the tenants’ argument is underdeveloped. It would be unfair to the landlord to resolve the jurisdiction issue without requesting further briefing from the landlord. Further, I conclude that it would be inappropriate under these circumstances to prolong this litigation for further briefing. Accordingly, I dismiss the appeal based on a lack of jurisdiction. I also explain below why, even if I were to address the jurisdiction issue, the tenants’ apparent argument for jurisdiction is at a minimum incomplete.

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WI Supreme Court Digests

WI Supreme Court

Case Name: State of Wisconsin v. Kevin L. Nash

Case No.: 2020 WI 85

Focus: Plea Withdrawal

This is a review of an unpublished decision of the court of appeals, State v. Nash, No. 2018AP731-CR, unpublished slip op. (Wis. Ct. App. May 2, 2019), affirming the Waukesha County circuit court’s judgment and order denying Kevin L. Nash’s postconviction motion to withdraw his Alford plea. We affirm.

Affirmed

Concur: REBECCA GRASSL BRADLEY, J., filed a concurring opinion. KAROFSKY, J., filed a concurring opinion, in which ANN WALSH BRADLEY and DALLET, JJ., joined.

Dissent:
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