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Weekly Case Digests – October 18, 2021 – October 22, 2021

By: Derek Hawkins//October 22, 2021//

Weekly Case Digests – October 18, 2021 – October 22, 2021

By: Derek Hawkins//October 22, 2021//

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7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Ronald Schmucker, et al., v. Johnson Controls, Inc., et al.,

Case No.: 20-3432

Officials: Easterbrook, Rovner, and Hamilton, Circuit Judges.

Focus: Statutory Interpretation – RCRA – Imminent or Substantial Hazards

Between 1937 and 2006 Johnson Controls and a predecessor operated a manufacturing plant in Goshen, Indiana. The plant used chlorinated volatile organic compounds in its degreasing agents, some of which reached the groundwater. Chlorinated organics slowly break down by losing chlorine atoms. The version with three chlorine atoms, known as trichloroethylene or TCE, is a carcinogen. The end product with no chlorine atoms, ethene, is harmless. The breakdown process can take decades, and a plume of TCE remains in water under part of Goshen. Plaintiffs contend in this suit under 42 U.S.C. §6972(a), part of the Resource Conservation and Recovery Act (RCRA or the ACT) that Johnson Controls and Tocon Holdings (which bought the land in 2007) must do more to reduce the amount of TCE in the environment. For simplicity we refer to both defendants as Johnson Controls.

The district judge wrote much, much more, and the opinion shows compellingly why homeowners’ risk from TCE in Goshen is neither imminent nor substantial. Plaintiffs lost this case on the facts, not on the law. If vapor mitigation systems begin to fail, or the contaminated water migrates toward the aquifer, or conditions otherwise change for the worse, plaintiffs will be free to renew their litigation. A conclusion that hazards are not “imminent and substantial” today does not mean that they will be slight forever. But the district judge did not err in concluding on this records that the risks are too slight to compel more action than Johnson Controls is already undertaking with Indiana’s supervision.

Affirmed

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7th Circuit Court of Appeals

Case Name: Stanley Boim, et al., v. American Muslims for Palestine, et al.,

Case No.: 20-3233

Officials: KANNE, SCUDDER, and KIRSCH, Circuit Judges.

Focus: Anti-Terrorism Act – Subject-matter Jurisdiction

In 1996 David Boim was shot and killed by Hamas terrorists while studying abroad in Israel. His parents later sued several American nonprofit organizations for their role in funding Hamas and secured a $156 million judgment under the federal Anti-Terrorism Act. Those organizations then shuttered, leaving Stanley and Joyce Boim mostly empty handed. So in 2017 they filed a new lawsuit against two different American entities and three individuals, alleging that these new defendants are alter egos of the now defunct nonprofit organizations and therefore liable for the remainder of the $156 million judgment.

In the new lawsuit, the district court allowed limited jurisdictional discovery, decided the new entities and individuals were not alter egos of the defunct nonprofits, and then dismissed the action for lack of subject matter jurisdiction. This should not have happened, for the district court’s finding on the alter ego question constituted a merits determination that went beyond a proper jurisdictional inquiry. Because the Boims’ new lawsuit arises under the Anti-Terrorism Act, the district court possessed federal jurisdiction and should have allowed the case to proceed on the merits, consistent with the ordinary course of civil litigation. We therefore reverse and remand for renewed proceedings.

Reversed and remanded

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7th Circuit Court of Appeals

Case Name: Brian Hope, et al., v. Commissioner of Indiana Department of Correction, et al.,

Case No.: 19-2523

Officials: ST. EVE, Circuit Judge.

Focus: Equal Protection Claim – Sex Offender Registration Act

Indiana’s Sex Offender Registration Act (“SORA”) imposes registration requirements and restrictions on sex offenders who reside, work, or study in the State. Ind. Code § 11-8-8-1 et seq. By virtue of the State supreme court’s construction of the Indiana Constitution, Indiana’s Ex Post Facto Clause prohibits retroactive application of SORA to offenders convicted before its enactment unless the marginal effects of doing so would not be punitive. Wallace v. State, 905 N.E.2d 371 (Ind. 2009); Jensen v. State, 905 N.E.2d 384 (Ind. 2009). If an offender was under no registration requirement prior to SORA’s passage, imposing a registration requirement in the first instance is impermissibly punitive. Wallace, 905 N.E.2d at 371. The Indiana Supreme Court has held, however, that if another state previously subjected a preSORA offender to a registration requirement, requiring him to register in Indiana is not punitive. See, e.g., Tyson v. State, 51 N.E.3d 88 (Ind. 2016). Indiana caselaw thus has the peculiar effect of permitting the State to treat similarly situated offenders differently based solely on whether an offender had an out-of-state registration obligation. That feature underlies the present appeal.

The plaintiffs, six sex offenders residing in Indiana, were convicted prior to SORA’s passage. Each of them had to register in another state. After moving to Indiana, the State required them to register under SORA. Absent their out-of-state registration obligations, Indiana’s Constitution would prohibit SORA’s application to them. Plaintiffs challenge the constitutionality of SORA on three fronts, arguing that it violates their right to travel under the Privileges or Immunities Clause, their right to equal protection under the Fourteenth Amendment, and Article I’s prohibition on ex post facto laws. The district court granted summary judgment for the plaintiffs on all claims, and Indiana appealed. A divided panel of this Court affirmed the district court, but we subsequently agreed to hear the case en banc.

We now reverse. SORA does not violate the right to travel because it does not expressly discriminate based on residency, as consistently required by the Supreme Court. Plaintiffs’ ex post facto claim is likewise precluded by precedent. Applying Smith v. Doe, 538 U.S. 84 (2003), we hold that SORA is not “so punitive either in purpose or effect” as to surmount Indiana’s nonpunitive intent for the law. But because the district court did not address whether SORA passes rational basis scrutiny under an equal protection analysis, we remand for consideration of the equal protection claim.

Reversed and remanded

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7th Circuit Court of Appeals

Case Name: Frances L. Rogers v. Commissioner of Internal Revenue

Case No.: 20‐2789; 20‐2790; 20‐2791; 20‐2869; 20‐2870; 20‐2871; 20‐2872; 20‐2873

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

Focus: Tax Code – Spousal Relief

Married since 1967, John and Frances Rogers filed joint federal income tax returns for many years. They underreported their tax obligations many times over, and the misreporting was the product of a fraudulent tax scheme designed by John, a Harvard‐trained tax attorney. The fraud did not elude the Internal Revenue Service, though, and the many subsequent collection and enforcement proceedings in the U.S. Tax Court have not gone well for the Rogerses. Our court has affirmed the Tax Court’s rulings every time.

Before us now is another appeal by Frances challenging two Tax Court decisions denying her requests for what the Tax Code calls innocent spouse relief. Our review of the record shows that the Tax Court took considerable care assessing Frances’s pleas for relief, in the end denying them largely on the basis that she was aware of too many facts and too many warning signs during the relevant tax years to escape financial responsibility for the clear fraud perpetrated on the U.S. Treasury. While the tragedy of what Frances has endured over the years is in no way lost on us, we are left to affirm, for the Tax Court got it right.

Affirmed

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7th Circuit Court of Appeals

Case Name: Robert Bless v. Cook County Sheriff’s Office et al.,

Case No.: 20-2733

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

Focus: Summary Judgment – Discrimination and Retaliation Claims

Robert Bless, a police officer for the Cook County Sheriff’s Office, was fired after an internal review board determined that he had violated office policies and then lied to investigators about his misconduct. Bless sued his employer, alleging race discrimination and political retaliation against him as a white Republican. The district court granted summary judgment in favor of Defendants because Bless failed to carry his burden of proof under either theory. We affirm the district court’s decision.

Affirmed

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7th Circuit Court of Appeals

Case Name: Marvin L. Carter v. Chris S. Buesgen

Case No.: 20-3140

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

Focus: Appellate Jurisdiction

Wisconsin inmate Marvin Carter has waited four years and counting to challenge his 2017 sentence on direct appeal in state court. Over these four years Carter has weathered a ten-month transcript delay, three different public defenders, and fourteen extension requests by counsel and the trial court itself. At no point during these four years has a single court in Wisconsin ruled on the merits of Carter’s colorable challenge to his sentence. None of this is Carter’s fault.

Carter responded to the delay by seeking relief in federal court under 28 U.S.C. § 2254. Although recognizing the inordinate delay Carter has endured in Wisconsin, the district court concluded that Carter had failed to exhaust his state court remedies and dismissed his petition without prejudice. At the very least, the district court added, Carter needed to lodge one final plea for relief with the state court before returning to federal court.

Carter appeals from that dismissal. We confront two issues: whether we have appellate jurisdiction to review the district court’s dismissal order and, if so, whether the delay experienced by Carter excuses him from the otherwise applicable statutory exhaustion requirement. We answer both questions in the affirmative, for what Carter has experienced—and, by every indication, will continue to experience—in the Wisconsin trial and appellate courts is extreme and tragic. The intractable delay shows that Wisconsin’s appellate process, at least as far as Carter is concerned, is ineffective to protect rights secured by the United States Constitution. So we reverse and remand to allow the district court to rule on the merits of Carter’s § 2254 petition without delay.

Reversed and remanded

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7th Circuit Court of Appeals

Case Name: Blake Conyers, et al., v. City of Chicago

Case No.: 20-1934

Officials: EASTERBROOK, WOOD, and KIRSCH, Circuit Judges.

Focus: 4th Amendment Violation – Sale of Seized Property

The City of Chicago requires its police officers to seize, inventory, and store any property belonging to an arrested person, if that property is not permitted in the Cook County Jail. After 30 days, the City deems abandoned any property unclaimed by the owner or her authorized representative, and it sells or destroys the presumptively abandoned items. CHI.,ILL., MUNICIPAL CODE § 2-84-160 et seq. (2007). Blake Conyers, Lamar Ewing, and Kevin Flint seek to represent hundreds of people whose property has been destroyed under this regime. Invoking 42 U.S.C. § 1983 and several constitutional provisions, they challenge the City’s policy as unconstitutional.

It is important to note at the outset that the City’s right to seize and inventory the property upon arrest is not at issue. It is well settled that it may do so. See Illinois v. Lafayette, 462 U.S. 640, 646 (1983). Likewise, plaintiffs do not contend that municipalities are not permitted to manage seized property. Their focus is instead on the policy the City has chosen for property owned by arrestees held at the Jail for more than the permitted 30-day period. As applied to that property, they contend, the City’s destroy-or-sell policy violates the Fourth, Fifth, and Fourteenth Amendments, as well as Illinois law. While we can understand their frustration, however, we find no error in the district court’s decision that they have failed to state any claim on which relief can be granted. We therefore affirm the judgment of the district court.

Affirmed

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7th Circuit Court of Appeals

Case Name: Jerry Smith, Jr., v. Melvin Finkley, et al.,

Case No.: 20-1754

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

Focus: Appellate Jurisdiction – Qualified Immunity

Jerry Smith, Jr. reportedly left the scene of a fight and returned with a gun. After a citizen complained, two Milwaukee police officers on patrol came upon Smith and saw that he matched the description relayed by dispatch. When the officers approached Smith to investigate, he fled. The officers followed, believing Smith was armed.

Smith was found hiding on a rooftop one block away, and when the pursuing officers discovered him, an intense and dangerous standoff took place. After Smith refused numerous orders to cooperate, two other officers—Melvin Finkley and Adam Stahl, the defendants here—approached Smith, and believing he was armed, drew their guns. What followed is disputed: the officers thought Smith was reaching down behind an air conditioning unit for a gun, and Smith said he was responding to an earlier command to get down on the ground. Finkley and Stahl shot Smith three times. He survived but with serious injuries. Video from the officers’ body cameras captured these events.

Smith sued under 42 U.S.C. § 1983 and alleged excessive force in violation of the Fourth Amendment. The officers moved for summary judgment, arguing that their use of force was reasonable as a matter of law and that qualified immunity shielded them from liability. After the district court denied the officers’ motion, they filed this interlocutory appeal of the denial of qualified immunity. In this posture, appellate jurisdiction is limited: we can resolve an abstract legal question, but not factual disputes that are important to and inseparable from the qualified immunity defense.

As we must, we consider this court’s jurisdiction in view of Smith’s claim of unreasonable use of deadly force and the officers’ qualified immunity defense. That assessment, from the perspective of a reasonable officer on the scene, evaluates whether the totality of the circumstances justified seizure by shooting. Some of those circumstances weighed in favor of the police using deadly force to seize Smith. But in the short time frame before and when the officers shot Smith, factual disputes exist about how much of a threat Smith posed and how actively he was resisting. The qualified immunity decision depends upon and cannot be separated from these disputes, which are integral to the merits of Smith’s claim. Because we cannot resolve these factual disputes, we dismiss this appeal for lack of jurisdiction.

Dismissed

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7th Circuit Court of Appeals

Case Name: Protect Our Parks, Inc., et al., v. Pete Buttigieg, et al.,

Case No.: 21-2449

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

Focus: Preliminary Injunction

In 2016, the City of Chicago and the Barack Obama Foundation selected Jackson Park in Chicago as the location for the Obama Presidential Center. The Center, consisting of a museum, public library, and other spaces for cultural enrichment and education related to the life and presidency of Barack Obama, will take up about 20 acres of the park and require that the City close several nearby roadways. The National Park Service approved the City’s plan to build in the park on the condition that the City expand nearby spaces for public recreation. The Federal Highway Administration approved construction of new roadways to make up for the roadways the City was to close. Both agencies together performed an environmental assessment and concluded that their decisions would have an insignificant effect on the environment and were the least damaging alternatives available to each agency. But they did not consider whether the City could have further reduced environmental harms by building the Center elsewhere.

A group of concerned local citizens, headed by the organization Protect Our Parks, Inc., argued that this environmental review was too cramped; they sought to enjoin construction of the Center under the Administrative Procedure Act (APA), 5 U.S.C. § 702. The district court denied Protect Our Parks’s request for a preliminary injunction on August 5. Protect Our Parks promptly moved to enjoin construction pending its appeal from that order. We denied the motion for an injunction pending appeal. Protect Our Parks also asks us to expedite this appeal. That request is granted, and an expedited briefing schedule will issue separately.

Motion denied. Request for expedited appeal granted.

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7th Circuit Court of Appeals

Case Name: Antwon Flint v. Kevin Carr

Case No.: 20-3165

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

Focus: Habeas Relief – Double Jeopardy

The Double Jeopardy Clause of the Fifth Amendment provides that “No person shall … be subject for the same offence to be twice put in jeopardy of life or limb.” This constitutional protection prohibits retrial after an acquittal, but a mistrial declared over a defendant’s objection does not always prevent another prosecution. A “manifest necessity” for the mistrial allows a retrial for the same crime.

That is what happened to Antwon Flint. In his first trial in Wisconsin state court, the prosecutor moved for a mistrial based on (alleged) hearsay in Flint’s counsel’s opening statement. The trial court granted that motion, and a jury found Flint guilty at a second trial. Raising double jeopardy, Flint sought relief in the Wisconsin appellate courts; when that failed, he moved for federal postconviction relief. But the district court concluded that Flint failed to overcome the high hurdle for granting habeas imposed by the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254 (AEDPA). According to the district court, the Wisconsin Court of Appeals reasonably applied the Supreme Court’s decision in Arizona v. Washington, 434 U.S. 497 (1978), which requires great deference to a trial judge’s “manifest necessity” determination. So the district court denied Flint’s habeas petition.

We agree. Although we have our reservations about whether a mistrial should have been declared, deference to the discretion of a trial judge and to state court judgments requires that we affirm the denial of Flint’s habeas petition under § 2254.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America, et al., v. Molina Healthcare of Illinois, Inc., et al.,

Case No.: 20-2243

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

Focus: Qui Tam Claim – Medical Billing

Sophisticated players in the healthcare market know that services come at a cost; providers charge fees commensurate with the services rendered; and payors expect to receive value for their money. There are many options from which to choose when designing a payment scheme, including fee-for-service, prepaid services using the health-maintenance organization model (HMO), and capitation payments, to name just a few. Each of these models attempts to balance expected services against expected costs.

The present case involves a capitation system, which is similar to the traditional HMO approach in which parties agree to a fixed per-patient fee that covers all services within the scope of a governing plan. Molina Healthcare of Illinois (Molina) contracted with the state’s Medicaid program (which in turn is largely funded by the federal government, see Illinois Medicaid, https://www.benefits.gov/benefit/1628) to provide multiple tiers of medical-service plans with scaled capitation rates. Among those, the Nursing Facility (NF) plan required Molina to provide Skilled Nursing Facility (SNF) services. Molina itself, however, did not deliver those services; instead, it subcontracted with GenMed to cover this obligation. Molina received a general capitation payment from the state, out of which it was to pay GenMed for the SNF component. But little time passed before Molina breached its contract with GenMed and GenMed terminated the contract. After GenMed quit, Molina continued to collect money from the state for the SNF services, but it was neither providing those services itself nor making them available through any third party. Molina never told the government about this breakdown, nor did it seek out a replacement service provider.

Thomas Prose, the founder of GenMed, brought this qui tam action under both the federal and the state False Claims Acts. See 31 U.S.C. § 3729 et seq.; 740 ILCS 175/1 et seq. (Because the state law does not differ in any meaningful way from the federal law, we refer in this opinion only to the federal law for the sake of simplicity.) Prose alleged that Molina submitted fraudulent claims for payments to the Department (which was for the most part just a conduit for federal funds—a point we will not repeat) for skilled nursing facility services. Although the district court agreed with Prose that the SNF services were material to the contract, it dismissed the case at the pleading stage because it found that the complaint insufficiently alleged that Molina knew that this condition was material. But on our independent reading of the complaint, we conclude that it plausibly alleges that as a sophisticated player in the medical-services industry, Molina was aware that these kinds of services play a material role in the delivery of Medicaid benefits. We therefore reverse and remand for further proceedings.

Reversed and remanded

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7th Circuit Court of Appeals

Case Name: Gloria Taylor v. City of Milford, et al.,

Case No.: 20-1109

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

Focus: Summary Judgment – Qualified Immunity

In 2016, Gloria Taylor called 911 seeking medical care for her husband, Steven, who was experiencing a diabetic emergency at their home in Milford, Illinois. Officer Joseph Garrett responded to the call and re‐ strained Steven in a prone position, face down on his bed, for several minutes. Steven vomited and lost consciousness, and he did not regain consciousness before passing away in the hospital ten days after the incident at sixty‐one years old. After the district court granted summary judgment to the Defendants, Plaintiff appealed the district court’s judgment with respect to whether Defendant Garrett was entitled to qualified immunity based on his conduct within the Taylor home. As we explain below, the district court erred in granting qualified immunity to Garrett at the summary judgment stage.

Reversed and remanded

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: August J. Zywicki, et al., v. Artisan and Truckers Casualty Company

Case No.: 2020AP180

Officials: Brash, C.J., Dugan and White, JJ.

Focus: Sufficiency of Evidence – Damages

Artisan and Truckers Casualty Company (Artisan) appeals the trial court order upholding the jury’s award of $50,000 to August Zywicki for the loss of his future earning capacity after he was injured in an automobile accident. Artisan argues that the trial court erred when it denied its motion for directed verdict because there was no credible evidence in the record to support the damages. We agree, and accordingly, we reverse and remand with instructions to enter the appropriate judgment described below.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Gregory L. Rollins

Case No.: 2020AP590-CR

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

Focus: Postconviction Relief – Multiplicity Claim

Gregory L. Rollins appeals a judgment of conviction and an order denying his postconviction motion.  On appeal, Rollins argues that his two convictions for first-degree recklessly endangering safety are multiplicitous because he only committed one reckless act—he fired a single bullet in the direction of two people. We disagree, and affirm. First, we conclude that the two convictions are not multiplicitous because Rollins’ conduct endangered two different people. Second, we conclude that Rollins has failed to rebut the presumption that the legislature intended to allow multiple punishments.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Howard D. Davis

Case No.: 2020AP910

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

Focus: Postconviction Relief – Ineffective Assistance of Counsel

Howard D. Davis, pro se, appeals the order of the trial court denying his motion filed pursuant to WIS. STAT. § 974.06 (2019-20). Davis argues that his postconviction counsel was ineffective for failing to raise claims, or failing to adequately argue claims that were raised, in his initial postconviction motion. We, however, conclude that all of Davis’s claims are procedurally barred, and therefore we affirm the order of the trial court denying his § 974.06 motion.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Lamonta Willis

Case No.: 2020AP1139-CR

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

Focus: Abuse of Discretion – Resentencing  

Lamonta Willis appeals a judgment of conviction, following a jury trial, of one count of attempted armed robbery, as a party to a crime, and one count of aggravated battery, as a party to a crime. He also appeals from the order denying his postconviction motion. Willis contends that the trial court imposed an excessive sentence. Upon review, we affirm.

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WI Court of Appeals – District III

Case Name: Shawano County v. S.L.V.,

Case No.: 2021AP223

Officials: STARK, P.J.

Focus: Involuntary Commitment and Medication

Susan appeals from an order for involuntary commitment under WIS. STAT. § 51.20, as well as an order for involuntary medication and treatment. As an initial matter, Susan contends that this appeal is not moot, even though the underlying orders have expired. She then contends that Shawano County violated her right to due process by failing to identify, either before or during the final commitment hearing, the statutory standard under which it sought to prove that she was dangerous. Susan also argues that the County failed to establish dangerousness by clear and convincing evidence under any of the five statutory standards, and that the circuit court failed to make specific factual findings with reference to the statutory basis for its determination of dangerousness, as required by Langlade County v. D.J.W., 2020 WI 41, 391 Wis. 2d 231, 942 N.W.2d 277.

We conclude Susan’s appeal is not moot because she remains subject to at least one collateral consequence of the commitment order—namely, a firearms ban. We further conclude that reversal is warranted because the circuit court failed to make the specific factual findings required by D.J.W. We therefore reverse both the commitment order and the associated order for involuntary medication and treatment.

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WI Court of Appeals – District III

Case Name: 1st Auto & Casualty Insurance Company v. A.P., et al.,

Case No.: 2020AP1745

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

Focus: Insurance Claim – Coverage

Amy was sexually assaulted by Cody Triebs inside the cab of Triebs’ pickup truck and on the truck’s tailgate. At issue in this appeal is whether insurance policies issued by 1st Auto & Casualty Insurance Company and Progressive Universal Insurance Company provide uninsured motorist (UM) coverage for Amy’s injuries. The circuit court granted summary judgment to 1st Auto and Progressive, concluding their respective policies do not provide UM coverage because Amy’s injuries from the sexual assault did not arise out of the ownership, maintenance, or use of an uninsured motor vehicle. We agree and affirm.

Recommended for Publication

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Joel R. Davis

Case No.: 2020AP731-CR

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

Focus: Unlawful-stop Claim – Ordinary Inquiry – Suppression of Evidence

The State appeals an order suppressing evidence found during a traffic stop of Joel R. Davis. The circuit court suppressed the evidence because it determined that law enforcement impermissibly prolonged the stop by asking dispatch to inquire into the conditions of Davis’s release on bond in a pending criminal case. It is undisputed that the officer who stopped Davis sat in his squad car and conducted no recognized tasks incidental to the mission of the stop while he waited for a response to his inquiry about Davis’s bond conditions. The State primarily directs us to Rodriguez v. United States, 575 U.S. 348 (2015), to support its argument that, when police check the conditions of a motorist’s release on bond, this is an “ordinary inquiry” that is incidental to the mission of a lawful stop, rather than an “unrelated investigation” that constitutes an impermissible detour from the mission of the stop.

We conclude that checking for bond conditions is not an “ordinary inquiry” as that term is used in Rodriguez. Therefore, based on the circuit court’s undisputed findings of fact, we conclude that law enforcement unconstitutionally prolonged the traffic stop beyond the time necessary to address the stop’s mission. Accordingly, we affirm.

Recommended for Publication

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Eric A. Newman

Case No.: 2020AP1517-CR

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

Focus: Jury Instructions

Eric Newman appeals a judgment of conviction for aggravated battery and an order denying his postconviction motion. Newman contends that the circuit court erred by denying his request for a jury instruction on the privilege of self-defense. In the alternative, he contends that his trial counsel was ineffective by failing to elicit sufficient testimony to meet the minimal threshold for the self-defense instruction. We reject both arguments. We affirm.

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WI Court of Appeals – District IV

Case Name: Kimberly B. Rushman v. Christopher John McMahon

Case No.: 2020AP1717

Officials: Kloppenburg, Fitzpatrick, and Graham, JJ.

Focus: Divorce – Property Division 

Kimberly B. Rushman appeals the circuit court’s division of property in a judgment of divorce between herself and her former husband, Christopher John McMahon. Rushman argues that the circuit court erred in: (1) denying Rushman’s motion for a continuance; (2) determining that McMahon’s one-third interest in an Oneida County property is not subject to division; and (3) departing from the presumption of equal division when dividing a Portage County property. We reject Rushman’s arguments and affirm.

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WI Court of Appeals – District IV

Case Name: Dodge County Health and Human Services v. L.W.,

Case No.: 2020AP1754

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

Focus: Guardianship and Protective Placement

L.W. appeals orders for guardianship and protective placement. L.W. argues that the order for protective placement should be reversed. She argues that the circuit court failed to make the required finding that she is “totally incapable” of providing for her own care or custody, creating a substantial risk of serious harm to herself or others. See WIS. STAT. § 55.08(1)(c). While it is true that the court’s oral ruling did not directly address this point, other than saying that “there is a need for” protective placement, the written check box form order includes this finding.

L.W. argues that the finding was clearly erroneous because she is not “totally incapable” of providing for her own care, and that the evidence instead shows that she is capable of accessing medical or other services when necessary. We reject this argument because the record amply demonstrates that her attempts to access services have occurred mainly after she has already placed herself at substantial risk of serious harm through her conduct.

L.W. also argues that the court’s decision disregards the distinction between refusing care and being incapable of providing for one’s care. However, when as here the circuit court has a reasonable basis to find that the person’s refusal was the product of mental illness, there is no meaningful distinction. We affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. John William Lane

Case No.: 2021AP327-CR

Officials: GRAHAM, J.

Focus: Unlawful Seizure – Suppression of Evidence

The State charged John W. Lane with operating a motor vehicle while intoxicated and with a prohibited blood alcohol concentration, third offense, based on evidence obtained during a traffic stop. The State appeals a circuit court order granting Lane’s motion to suppress this evidence.  I affirm.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Office of Lawyer Regulation v. Daniel Parks

Case No.: 2021 WI 74

Focus: Attorney Disciplinary Proceedings

Pending before the court is Attorney Daniel Parks’ second petition for reinstatement of his license to practice law in Wisconsin. Upon consideration of the reinstatement petition; Attorney Parks’ affidavit in support of his reinstatement petition; the Office of Lawyer Regulation’s (OLR) response pursuant to Supreme Court Rule (SCR) 22.30(4); the parties’ SCR 22.30(5)(a) stipulation; the OLR’s memorandum in support of the stipulation (attaching Attorney Anthony O’Malley’s comment in support of reinstatement); and Attorney Parks’ response to the OLR’s memorandum, we conclude that reinstatement, upon conditions, is appropriate.

Reinstatement granted upon conditions

Concur:

Dissent:
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