Weekly Case Digests – November 8, 2021 – November 12, 2021

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Whole Woman’s Health Alliance, et al., v. Todd Rokita, et al.,

Case No.: 21-2480; 21-2573

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

Focus: Preliminary Injunction 

The district court entered an injunction that prohibits officials from enforcing these provisions of Indiana’s law:

• Ind. Code §16-34-2-1(a)(1) to the extent this statute limits the provision of first-trimester medication abortion care to physicians; requires a physical examination to be performed on a woman prior to receiving an abortion; and prohibits the use of telemedicine by requiring the prescriber to be physically present at the abortion facility in order to dispense the abortion-inducing drug and the patient to ingest the drug in the physical presence of prescriber;
• Ind. Code §16-34-2-1(a)(2) providing that second trimester abortions be performed only in hospitals or ambulatory surgical centers;
• Ind. Code §16-34-2-1.1(a)(1), (a)(4), (b)(1) to the extent these provisions prohibit providers from using telemedicine or telehealth to obtain informed consent from patients or to conduct preabortion counseling sessions;
• Ind. Code §25-1-9.5-8(a)(4) prohibiting the use of telemedicine in abortion care;
• 410 Ind. Admin. Code §26-17-2(d)(1)(A), (4), (e)(5) requiring clinics providing aspiration abortions to maintain 120-square-foot procedure rooms, scrub facilities, and 44-inch corridors;
• 410 Ind. Admin. Code §26.5-17-2(e)(1) requiring medication abortion clinics to maintain housekeeping rooms with storage sinks;
• Ind. Code §16-34-2-1.1(a)(1)(E) and (a)(1)(G) requiring women seeking abortion services to be informed that “objective scientific information shows that a fetus can feel pain at or before twenty (20) weeks of postfertilization age” and that “human physical life begins when a human ovum is fertilized by a human sperm”; and
• Ind. Code §16-34-2-1.1(b)(2) to the extent it requires dissemination of a Perinatal Hospice Brochure containing the following: “Studies show that mothers who choose to carry their baby [sic] to term recover to baseline mental health more quickly than those who aborted due to fetal anomaly.”

2021 U.S. Dist. LEXIS 149959 at *207–08 (S.D. Ind. Aug. 10, 2021). The officials (collectively Indiana) request a stay of some aspects of this injunction: the “physician-only law as applied to medication abortions, Ind. Code §16-34-2-1(a)(1); [the] second-trimester hospital/ambulatory surgical center requirement, id. §16-34-2-1(a)(2); [the] in-person counseling requirement, id. §16-34-2-1.1(a)(1), (a)(4), (b)(1); [the] in-person physical examination requirement, id. §16-34-2-1(a)(1); and [the] telemedicine ban, id. §25-1-9.5-8(a)(4).”

All of the contested provisions have been in force for years, so a stay would preserve the status quo pending appellate resolution. And Indiana has made the “strong showing” on the merits necessary to receive a stay. See Nken v. Holder, 556 U.S. 418, 426, 434 (2009).

We leave the merits for resolution after full briefing and argument. All we hold today is that existing precedents provide strong grounds for concluding that Indiana is likely to prevail on the contested issues. To the extent that the injunction bars Indiana from enforcing Ind. Code §§ 16-34-2-1(a)(1), (2), 16-34-2-1.1(a)(1), (4), (b)(1), and 25-1-9.5-8(a)(4), it is stayed pending further order of this court.

Stayed

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7^th Circuit Court of Appeals

Case Name: Joseph S. Ferguson v. Ryan McDonough

Case No.: 20-2741

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

Focus: Appellate Jurisdiction – Qualified Immunity

Our jurisdiction over this interlocutory appeal turns on a police dashcam video that captured police officer Ryan McDonough’s arrest of Joseph Ferguson, including the moment he tased Ferguson. Ferguson sued Officer McDonough under 42 U.S.C. § 1983, alleging that Officer McDonough violated his Fourth Amendment rights by using excessive force to effectuate his arrest. Following discovery, the parties cross-moved for summary judgment, both asserting that the dashcam video supported granting summary judgment in their favor. The district court disagreed that the video resolved the parties’ factual disputes and denied both motions.

This appeal concerns only the denial of Officer McDonough’s motion, which asserted that he was entitled to summary judgment because qualified immunity shielded him from civil liability for any damages Ferguson sustained from the arrest. The district court concluded that when the facts were viewed in a light most favorable to Ferguson, one reasonable interpretation of the dashcam video was that Ferguson was not actively resisting arrest when Officer McDonough tased him. It further concluded that a reasonable officer would have known by the time of Ferguson’s tasing that an officer’s escalation of force in response to an individual not actively resisting violated the Fourth Amendment’s proscription against excessive force. Because one view of the evidence supported that Ferguson was not actively resisting when Officer McDonough tased him, a jury could reasonably find that Officer McDonough’s use of the taser was unreasonably excessive under the circumstances. Accordingly, the district court held that Officer McDonough was not entitled to summary judgment on his qualified immunity defense.

On appeal Officer McDonough argues that the dashcam video contradicts the district court’s finding that the video is open to interpretation because the video clearly shows that Ferguson was actively resisting arrest moments before Officer McDonough tased him, and that Ferguson continued to argue with Officer McDonough while raising his hands. Under these circumstances, Officer McDonough contends that his deployment of the taser was objectively reasonable, and hence, he is entitled to qualified immunity.

We have jurisdiction to review the merits of Officer McDonough’s appeal only if the dashcam video utterly discredits the district court’s finding that there was a factual dispute over whether Ferguson was actively resisting when Officer McDonough tased him. It does not, so we must dismiss his appeal for lack of appellate jurisdiction.

Dismissed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Elston Stevenson

Case No.: 20-2261

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

Focus: Sentencing Guidelines – Enhancement

Elston Stevenson possessed a firearm as a felon, and as an armed career criminal he received an enhanced sentence. In the district court and on appeal, he challenges whether, given that state officials sent him a restoration of rights letter, two of his prior Illinois state convictions could support that enhancement. The district court concluded that Stevenson did not establish by a preponderance of the evidence that the letter in question pertained to those predicate convictions. That court did not clearly err, so we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Edward Soybel

Case No.: 19-1936

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

Focus: 4^th Amendment Violation – Warrantless Search & Seizure

Industrial-supply company W.W. Grainger was the victim of a series of cyberattacks against its computer systems in 2016. Grainger isolated the source of the intrusions to a single internet protocol (“IP”) address, which came from a high-rise apartment building where disgruntled former employee Edward Soybel lived.

Grainger reported the attacks to the FBI. To confirm the source, the government sought and received a court order under the Pen Register Act, 18 U.S.C. §§ 3121 et seq., authorizing the installation of pen registers and “trap and trace” devices to monitor internet traffic in and out of the building generally and Soybel’s unit specifically. Among the data collected, the pen registers recorded the IP addresses of the websites visited by internet users within Soybel’s apartment. The IP pen registers were instrumental in confirming that Soybel unlawfully accessed Grainger’s system. The district court denied Soybel’s motion to suppress the pen-register evidence and its fruits, and a jury convicted him of 12 counts of violating the Computer Fraud and Abuse Act.

This appeal presents a constitutional issue of first impression for our circuit: whether the use of a pen register to identify IP addresses visited by a criminal suspect is a Fourth Amendment “search” that requires a warrant. We hold that it is not. IP pen registers are analogous in all material respects to the telephone pen registers that the Supreme Court upheld against a Fourth Amendment chal lenge in Smith v. Maryland, 442 U.S. 735 (1979). The connection between Soybel’s IP address and external IP addresses was routed through a third party—here, an internet-service provider. Soybel has no expectation of privacy in the captured routing information, any more than the numbers he might dial from a landline telephone.

Soybel insists that this case is governed not by Smith but by Carpenter v. United States, 138 S. Ct. 2206 (2018). We disagree. Carpenter concerned historical cell-site location information (“CSLI”). The warrantless acquisition of that type of data implicates unique privacy interests that are absent here. Historical CSLI provides a detailed record of a person’s past movements, which is made possible so long as he carries a cell phone. In contrast, the IP pen register had no ability to track Soybel’s past movements. And Carpenter is also distinguishable based on the extent to which a person voluntarily conveys IP-address information to third parties. Accordingly, though our reasoning differs from the district judge’s, we hold that the suppression motion was properly denied.

Soybel also challenges the sufficiency of the evidence on one of the 12 counts. We reject this argument and affirm the judgment in all respects.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Christopher Harris v. United States of America

Case No.: 19-3363

Officials: MANION, WOOD, and BRENNAN, Circuit Judges.

Focus: Plain Error – Ineffective Assistance of Counsel

Christopher Harris faced federal drug charges. Counsel advised him that his two prior Indiana cocaine convictions were predicate “felony drug offenses” and could result in a mandatory life sentence. So, Harris entered into a plea agreement and received an agreed-upon 20- year sentence. Harris now seeks federal habeas corpus relief under 28 U.S.C. § 2255. He argues his counsel was ineffective by not challenging whether those prior drug convictions were predicates, as Indiana law defined cocaine isomers more broadly than federal law. Such an argument, novel then, would succeed today.

Although Harris forfeited this theory of ineffectiveness in the district court, we conclude that it is subject to plain-error review. But because it was objectively reasonable for Harris’s counsel not to advise risking a mandatory life sentence to pursue the isomer argument, the district court did not plainly err in ruling that counsel’s performance was constitutionally adequate.

Affirmed

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7^th Circuit Court of Appeals

Case Name: James Smith, et al., v. Board of Directors of Triad Manufacturing, Inc., et al.,

Case No.: 20-2708

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

Focus: ERISA – Arbitration

In this complex ERISA case, James Smith sued fiduciaries of the retirement plan offered by his former employer, Triad Manufacturing, Inc., for alleged financial misconduct. Add in a class action, an arbitration provision, and issues of notice and consent to plan amendments, and this lawsuit gets even more complicated.

The correct resolution here is straightforward, though. The ERISA provisions Smith invokes have individual and plan-wide effect. But the arbitration provision in Triad’s defined contribution retirement plan precludes relief that “has the purpose or effect of providing additional benefits or monetary or other relief to any Eligible Employee, Participant or Beneficiary other than the Claimant.” Because that provision prohibits relief that ERISA expressly permits, we affirm the district court’s denial of Triad’s motion to compel arbitration or, in the alternative, to dismiss.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Michael Kuebler, et al., v. Vectren Corporation, et al.,

Case No.: 19-2973

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

Focus: Securities Exchange Act Violation – Proxy Statement – Valuation Analysis

This securities case arose from the 2018 merger between Vectren Corporation, an Indiana public utility and energy company, and CenterPoint Energy, Inc., a public utility holding company. CenterPoint eventually acquired all Vectren stock for $72.00 per share in cash. In the meantime, however, several Vectren shareholders filed this suit alleging violations of the Securities Exchange Act of 1934 (“Exchange Act”), 15 U.S.C. § 78a et seq.

First, the shareholders tried to enjoin the shareholder vote on the merger. The district court denied that request. The shareholders then filed an amended complaint alleging that Vectren’s Proxy Statement was misleading in violation of Section 14(a) of the Exchange Act, § 78n(a). Plaintiffs argued that the Proxy Statement should have included two omitted financial metrics used by Vectren’s financial advisor in its analysis leading to its opinion that the merger terms were fair to Vectren shareholders. The first omitted metric, Unlevered Cash Flow Projections, forecast the gross after‐tax annual cash flow for Vectren between 2018 and 2027. The second omitted metric, Business Segment Projections, showed separate financial projections for each of Vectren’s three main business lines.

Without this information, the shareholders allege, they were unable to assess the fair value of their Vectren shares because they could not replicate the adviser’s valuation analysis. In other words, the shareholders believe that the adviser undervalued their Vectren shares, and they wanted to double‐ check its work. The district court granted Vectren’s motion to dismiss, finding that the shareholders had failed to allege adequately both materiality of the omissions and any resulting economic loss. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. William R. Hible, et al.,

Case No.: 20-1824; 20-2421

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

Focus: First Step Act – Motion for Reconsideration

We have consolidated two appeals that present a common question: whether a motion to reconsider a decision under the First Step Act of 2018, Pub. L. 115-391, 132 Stat. 5194, suspends the decision’s finality and thus extends the time for appeal. In each case the prisoner seeking a shorter sentence filed, within the time allowed for appeal, a motion asking the district judge to reconsider an adverse decision. In each case the judge denied that motion, and the prisoner appealed. Each notice of appeal was filed within 14 days of the decision on the motion to reconsider but more than 14 days after the original decision. The United States has asked us to dismiss both appeals, contending that a motion to reconsider does not affect the time for appeal.

This question has arisen before but was resolved in an order. The majority in United States v. Rutherford, No. 19-3012 (7th Cir. June 23, 2020) (nonprecedential disposition), concluded that a motion to reconsider suspends the decision’s finality. Circuit Judge Barrett (as she then was) dissented, concluding that Fed. R. Crim. P. 35 provides the only means to review a sentencing decision. As Fed. R. App. P. 4(b)(5) specifies that a motion under Rule 35 does not affect the time for appeal, an appeal following the denial of reconsideration often will be untimely. The United States asks us to follow Justice Barrett’s approach. But we think that the majority got this right and publish this opinion to settle the law of the circuit.

William Hible pleaded guilty to distributing more than five grams of crack cocaine and was sentenced to 240 months’ imprisonment. His presentence report concluded that his relevant conduct included the distribution of more than 250 grams of crack, 50 kilograms of powder cocaine, and 2,000 kilograms of marijuana. A district judge cut the sentence to 225 months under the First Step Act but declined to reduce it further, remarking that Hible’s substantial dealing in powder cocaine is outside the First Step Act’s scope. Hible contends that the judge should not have relied on the presentence report, because before imposing the original sentence the court did not resolve a contest to the report’s accuracy. But there’s a reason: Hible and the prosecutor made a bargain under which, in exchange for receiving a lower criminal-history category, Hible gave up his challenge to the report’s conclusions. The district judge did not abuse his discretion by giving weight to the report when, years later, Hible sought a sentence below the one he had bargained for. See United States v. Sutton, 962 F.3d 979, 986–87 (7th Cir. 2020).

Nor did the judge err in considering Hible’s prior felony conviction. If he had received an original sentence in 2020, the conviction would not have counted because of changes that the First Step Act makes to recidivist sentencing under 21 U.S.C. §841. But these changes are not retroactive, and we recently held that district judges need not apply them when considering motions under retroactive changes to the guidelines. See United States v. Fowowe, 1 F.4th 522, 529, 532 (7th Cir. 2021). See also United States v. Thacker, 4 F.4th 569 (7th Cir. 2021) (similar decision concerning motions for compassionate release). What is true of retroactive changes to the guidelines and motions for compassionate release is true when a new statute gives district judges discretion to reduce old sentences.

Hible’s remaining arguments have been considered but do not require analysis. Matthew Turner, the other appellant, received a life sentence for conspiring to distribute both crack and powder cocaine. A life sentence was mandatory given the quantities involved and Turner’s prior drug convictions. 21 U.S.C. §841(b)(1)(A)(ii) (powder), (b)(1)(A)(iii) (crack). President Obama commuted this sentence to 30 years’ imprisonment, and Turner sought more relief from the judiciary. The district court denied that request, observing that under the Fair Sentencing Act (retroactively applied through the First Step Act) the statutory minimum sentence remains life in prison. Even if all of the crack Turner distributed were to be disregarded, the powder alone would require a life sentence.

United States v. Hudson, 967 F.3d 605, 610 (7th Cir. 2020), holds that, when a defendant has been sentenced for two crimes, one covered by the First Step Act and the other not, a district judge has discretion to revise the entire sentencing package. That does not help Turner, however, because Hudson concerns the exercise of discretion. It does not change any statutory penalty. Turner’s statutory minimum penalty was and remains life in prison. The President’s pardon power permits him to reduce such a sentence—and the President has exercised that authority in Turner’s favor—but a district judge lacks equivalent power. Unless Turner receives further clemency, his sentence cannot be less than 30 years.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Ann Robbins v. MED-1 Solutions, LLC,

Case No.: 20-1343

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

Focus: FDCPA Violation

Ann Robbins defaulted on a small debt to an Indiana hospital system for services provided to her minor children. The hospital hired MED-1 Solutions, LLC (“MED-1”), to collect the debt. After MED-1 filed a small claims action, Robbins paid the debt but refused to pay attorney’s fees as required by the agreement she signed when the care was provided. MED-1 then incurred more attorney’s fees—the parties refer to these as “fees-on-fees”— as the small-claims proceeding moved forward for the purpose of recovering the attorney’s fees that were initially incurred. The small-claims court ordered Robbins to pay both the initial attorney’s fees and the fees-on-fees, and she appealed to the Marion County Superior Court. Under then existing Indiana law, the appeal initiated a de novo proceeding, so MED-1 filed a new complaint.

Meanwhile, just before the final hearing in small-claims court, Robbins filed suit against MED-1 in the Southern District of Indiana seeking damages under the Fair Debt Collection Practices Act (“FDCPA” or “the Act”), 15 U.S.C. §§ 1692–1692p. Among other claims, she alleged that MED-1 violated the Act by attempting to collect attorney’s fees and fees-on-fees that were not contractually owed. A magistrate judge stayed the case to await the outcome of the state proceedings. But the state-court case sat dormant for a long time. Perhaps because the stakes were so small, MED-1 didn’t pursue it, and the Superior Court eventually dismissed it for failure to prosecute.

Robbins then returned to federal court and revived the FDCPA case, and the parties filed cross-motions for summary judgment. As relevant here, Robbins raised res judicata, arguing that the state court’s dismissal order precluded MED-1 from claiming that the contract required her to pay attorney’s fees and fees-on-fees. In the alternative, she advanced a contractual argument that she was not required to pay fees-on-fees. These alternatives formed the basis of her FDCPA claim; she contended that MED-1 violated the Act by trying to collect sums she did not owe. The magistrate judge rejected these arguments and entered judgment for MED-1.

We affirm. The Superior Court’s dismissal order does not have preclusive effect here. And because Robbins’s contract with the hospital system required her to pay all collection costs, including attorney’s fees, MED-1 did not violate the FDCPA by attempting to collect fees-on-fees in the state-court proceedings.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Camelot Banquet Rooms, Inc., et al., v. United States Small Business Administration, et al.,

Case No.: 21-2589

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

Focus: Preliminary Injunction

Plaintiffs in this case are about fifty businesses all over the country that offer live adult entertainment in the form of nude or nearly nude dancing. They seek to obtain loans under the second round of the Paycheck Protection Program enacted by Congress to address economic disruption caused by the Covid-19 pandemic. By statute, Congress excluded plaintiffs and several other categories of businesses from the second round of the Program. See 15 U.S.C. § 636(a)(37)(A)(iv)(III)(aa), incorporating 13 C.F.R. § 120.110, with two exceptions.

Plaintiffs assert that their exclusion from the Program violates their constitutional rights, primarily under the Free Speech Clause of the First Amendment. The district court agreed. It issued a preliminary injunction that enjoins the United States Small Business Administration (SBA) from denying plaintiffs eligibility for the loan program based on the statutory exclusion that incorporates 13 C.F.R. § 120.110. Camelot Banquet Rooms, Inc. v. U.S. Small Business Admin., — F. Supp. 3d —, 2021 WL 3680369 (E.D. Wis. Aug. 19, 2021). The SBA has appealed and seeks a stay of the injunction pending appeal. The district court denied a stay on August 31. Camelot Banquet Rooms, Inc. v. U.S. Small Business Admin., — F. Supp. 3d —, 2021 WL 3878977 (E.D. Wis. Aug. 31, 2021). Later that day we issued a temporary stay pending expedited briefing on the stay issue, which was completed on September 9.

We now grant the government’s stay of the preliminary injunction and expedite briefing on the merits of this appeal. The government’s merits brief shall be filed no later than September 29, 2021; plaintiffs shall file their brief no later than October 13, 2021; and the government shall file any reply brief no later than seven days after plaintiffs file their brief. The court will contact counsel to schedule oral argument promptly.

Injunction granted

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Eric Jean Overvig

Case No.: 2019AP1786-CR

Officials: HRUZ, J.

Focus: OWI – 3^rd Offense – Confinement Period

The State appeals from Eric Overvig’s judgment of conviction for operating a motor vehicle while intoxicated (OWI), third offense. At sentencing, the circuit court imposed and stayed a nine-month jail sentence, ordered that Overvig serve two years on probation, and applied WIS. STAT. § 346.65(2)(cm) to order that Overvig serve twenty days’ jail confinement as a condition of probation. The State argues the court erred in its interpretation and application of subsec. (2)(cm) because the reduced confinement period permitted under that subsection can only apply in the context of a defendant being ordered to participate in a treatment court or other similar program. We reject the State’s arguments and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Darnell J. Mungon

Case No.: 2019AP2076-CR

Officials: Dugan, Graham and White, JJ.

Focus: Ineffective Assistance of Counsel

Darnell J. Mungon appeals a judgment of conviction and an order denying postconviction relief. Mungon argues that his trial counsel was ineffective and that the trial court erred when it excluded evidence that the victim in this case was not wearing his seat belt. Mungon additionally argues that he is entitled to a new trial in the interest of justice. Based upon our review of the briefs and the record, we conclude at conference that this case is appropriate for summary disposition. See WIS. STAT. RULE 809.21(1) (2019-20). We summarily affirm.

WI Court of Appeals – District I

Case Name: Michael L. Moss v. G4S Secure Solutions (USA), Inc., et al., v. Milwaukee County, et al.,

Case No.: 2020AP558

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

Focus: Governmental Immunity

Michael L. Moss appeals the trial court’s order for dismissal on the pleadings regarding Moss’s claims against Milwaukee County and its insurer, Wisconsin County Mutual Insurance Company (collectively “the County”). The trial court determined that the County’s pleadings established that government immunity applies in this case, and that Moss did not demonstrate that any exceptions to immunity were applicable. We agree and, therefore, affirm.

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Jacob D. Zwiefelhofer

Case No.: 2020AP843-CR

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

Focus: Sentencing Guidelines – Expungement

Jacob Zwiefelhofer appeals from an amended judgment of conviction that removed his eligibility for expungement. He also appeals from an order denying his motion for postconviction relief. The circuit court initially granted expungement eligibility at sentencing. The State, however, later moved the court to reconsider. The court subsequently granted the State’s motion and amended the original judgment to remove expungement eligibility. The court concluded that its expungement decision was based, in part, on an inaccurate argument Zwiefelhofer made at sentencing that a felony conviction would make him ineligible for federal farming subsidies and loans.

On appeal, Zwiefelhofer argues, among other things, that the State forfeited its claim for reconsideration of the circuit court’s expungement order when it failed to raise any issue during the sentencing hearing regarding the inaccurate information he provided. We agree that the State forfeited its claim in this regard because at the sentencing hearing, it did not object to or otherwise challenge a legal statement made by Zwiefelhofer’s attorney. Accordingly, we reverse and remand for the circuit court to vacate the May 31, 2019 amended judgment of conviction and to reinstate the January 15, 2019 original judgment of conviction.

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WI Court of Appeals – District II

Case Name: Club Unique Improvement Corporation v. Wisconsin Department of Natural Resources, et al.,

Case No.: 2020AP902

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

Focus: ALJ Review – Permit Application

Club Unique Improvement Corporation (Club Unique or the Club) appeals from an order of the circuit court denying its petition for judicial review of a decision from an administrative law judge (ALJ). Club Unique argues that the ALJ erred in concluding that it had competency to proceed over a contested case hearing and in reversing the Wisconsin Department of Natural Resource’s (DNR) decision to grant the Club’s application for a permit to modify and expand its pier on Geneva Lake in the Village of Fontana. We affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Kristine L. Buttke

Case No.: 2020AP1336-CR

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

Focus: Admission of Evidence – Expert Testimony

Kristine Buttke appeals from a conviction for causing mental harm to a child. She challenges the admission of expert testimony opining that the punishment regime Buttke imposed on the victim caused him mental harm in a “psychological” or “clinical” sense. We conclude the circuit court properly exercised its discretion in admitting the expert testimony and therefore affirm.

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WI Court of Appeals – District III

Case Name: Outagamie County v. L.C.E.,

Case No.: 2021AP324

Officials: HRUZ, J.

Focus: Involuntary Commitment – Sufficiency of Evidence

Lauren appeals from an order extending her involuntary commitment under WIS. STAT. ch. 51 and an order for involuntary medication and treatment. Lauren argues that the circuit court’s ruling at her recommitment hearing failed to identify the subdivision paragraph(s) under WIS. STAT. § 51.20(1)(a)2. on which it based its dangerousness determination, in contravention of Langlade County v. D.J.W., 2020 WI 41, 391 Wis. 2d 231, 942 N.W.2d 277. Lauren also challenges the sufficiency of the evidence establishing that she was currently dangerous under any of the standards set forth in § 51.20(1)(a)2. We agree that the court failed to make the specific findings mandated by D.J.W., and we therefore reverse.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. L.M.,

Case No.: 2021AP970

Officials: DONALD, P.J.

Focus: Termination of Parental Rights

L.M. appeals the order of the trial court terminating her parental rights to A.S.M. L.M. failed to appear at the initial hearing on the termination of parental rights petition and a default judgment was entered. Subsequently, L.M. moved to vacate the default judgment, which the trial court denied. On appeal, L.M. argues that the trial court erred in denying her motion to vacate the default judgment. In addition, L.M. argues that a new trial in the interest of justice should be granted. We affirm.

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WI Court of Appeals – District II

Case Name: Waukesha v. E.A.B., Jr.,

Case No.: 2021AP986-FT

Officials: REILLY, J.

Focus: Involuntary Commitment – Sufficiency of Evidence

E.A.B., Jr. appeals from an order of the circuit court extending his involuntary commitment and also challenges the order for involuntary medication and treatment. He argues that Waukesha County (the County) failed to establish that he is dangerous pursuant to WIS. STAT. § 51.20(1)(a)2.b., (1)(am). We conclude that the evidence supports the circuit court’s conclusion that E.A.B. is mentally ill, a proper subject for treatment, and would be a proper subject for commitment if treatment were withdrawn. See § 51.20(1)(a), (am). We also agree that the evidence was sufficient to support the involuntary medication and treatment order. We affirm.

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WI Court of Appeals – District IV

Case Name: James Brudos, et al., v. Wisconsin Mutual Insurance Company

Case No.: 2021AP62

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

Focus: Summary Judgment – Insurance Claim – Coverage

This case involves a single automobile liability policy issued by Wisconsin Mutual Insurance Company to Susan Noble and a dispute over the meaning of a “drive other cars” exclusion in the policy, under which coverage is excluded for vehicles not listed in the policy that are “available for” “the regular use of a relative” of the insured.  James and Carrie Brudos appeal a circuit court order granting Wisconsin Mutual’s motion for declaratory and summary judgment, based on the court’s conclusion that the policy does not provide coverage to Susan’s son, Tyler Noble. James Brudos and Tyler were operating separate motor vehicles that collided. Brudos alleged that Tyler caused the accident through negligent driving and that the policy provides coverage to Tyler.  At the time of the accident, Tyler was driving a 1970 pickup truck that belonged to his father, Charles Johnson. The truck was not a listed vehicle in the Wisconsin Mutual policy issued to Susan. The court granted Wisconsin Mutual’s motion for summary judgment based on its application of the “drive other cars” exclusion.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Keith X. Hoffman

Case No.: 2021AP271-CR

Officials: Kloppenburg, Fitzpatrick, and Nashold, JJ.

Focus: Probable Cause – Sufficiency of Evidence

The State appeals a circuit court judgment dismissing a criminal complaint charging Keith Hoffman with stalking under WIS. STAT. § 940.32(2) (2019-20). The court had previously dismissed an earlier complaint after declining to find probable cause at the preliminary hearing. The sole issue we decide is whether the allegations in the new complaint are sufficient to establish probable cause that Hoffman committed the stalking offense charged. We agree with the State that the allegations are sufficient. Accordingly, we reverse the circuit court’s judgment and remand for further proceedings consistent with this opinion.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Mark Anthony Culpepper

Case No.: 2019AP9-CR

Officials: Sheila T. Reiff, Clerk of Court of Appeals

Focus: Order Correcting Opinion

PLEASE TAKE NOTICE that corrections were made to paragraph 1 and 2 in the above-captioned opinion which was released on June 2, 2021. A corrected electronic version in its entirety is available on the court’s website at www.wicourts.gov.

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WI Court of Appeals – District III

Case Name: Rock & Tait Exteriors, LLC, v. Mallorys, LLC, et al.,

Case No.: 2019AP1846

Officials: STARK, P.J.

Focus: Small Claims – Piercing the Corporate Veil

The defendants appeal from a small claims judgment in the amount of $10,559.50 entered in favor of Rock & Tait Exteriors, LLC, (Rock & Tait) against all defendants, jointly and severally, for roofing work Rock & Tait completed at Mallory’s Restaurant and Rooftop Bar (the Restaurant) in Hudson, Wisconsin. The defendants argue that the circuit court erred by piercing “the corporate veil” of Dreamstructure DesignBuild, LLC (Dreamstructure) and holding Jason Johnson personally liable for the amount due. We conclude that the defendants have forfeited this argument and their remaining arguments are undeveloped. Consequently, we affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Braidyn S. Nederhoff

Case No.: 2020AP1285-CR

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

Focus: Plea Withdrawal – Ineffective Assistance of Counsel

Braidyn Nederhoff appeals a judgment convicting him, upon his guilty pleas, of three counts of possession of methamphetamine, as a repeater. He also appeals an order denying his postconviction motion for plea withdrawal. It is undisputed that Nederhoff’s trial attorney misinformed him about the terms of the plea agreement. Nederhoff therefore argues that he is entitled to withdraw his pleas because he has shown that they were not knowing, intelligent, and voluntary, and because he has demonstrated ineffective assistance of trial counsel.

The parties agree that the circuit court employed an incorrect legal analysis when denying Nederhoff’s postconviction motion. The State argues, however, that we may nevertheless affirm because under the correct analysis, Nederhoff has failed to establish that if he had been correctly informed of the terms of the State’s plea offer, he would have rejected that offer and would have instead gone to trial. Because the circuit court did not employ this analysis, it did not make any factual findings regarding Nederhoff’s motivation for accepting a plea deal, the credibility of his testimony that he would not have accepted the State’s plea offer had he been correctly informed of its terms, or the credibility of his trial attorney’s testimony regarding the defense’s overall strategy when negotiating the plea agreement.

Absent such factual findings, we cannot determine whether Nederhoff has established his entitlement to plea withdrawal under the correct legal analysis. We therefore reverse the order denying Nederhoff’s postconviction motion for plea withdrawal. We remand for the circuit court to reconsider Nederhoff’s motion using the correct legal analysis, including by making the factual findings discussed above.

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WI Court of Appeals – District III

Case Name: Outagamie County v. J.J.H.,

Case No.: 2021AP244

Officials: STARK, P.J.

Focus: Involuntary Commitment and Medication

Jason appeals from orders extending his WIS. STAT. ch. 51 involuntary commitment, and for his involuntary medication and treatment. Jason challenges the sufficiency of the evidence establishing that he was dangerous to himself or others under any of the standards set forth in WIS. STAT. § 51.20(1)(a)2. We reverse the recommitment order and the associated order for involuntary medication and treatment because the 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.

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WI Court of Appeals – District IV

Case Name: Jacob Sell v. Robyn Spector

Case No.: 2019AP1820; 2020AP513

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

Focus: Guardian ad Litem – Child Placement

Jacob Sell, pro se, appeals orders determining child placement and ordering payment of Guardian ad Litem (GAL) and expert witness fees. Sell raises numerous claims of circuit court error, and he requests that this court reverse the court’s placement determination and its orders for payment of fees. We conclude that Sell has not established any basis for this court to grant the requested relief. We affirm.

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WI Court of Appeals – District IV

Case Name: Nathan Bikowski v. Pro Seamless of Wisconsin Inc.,

Case No.: 2020AP1234

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

Focus: Breach of Contract – Trade Violations

Nathan Bikowski contracted with Pro Seamless of Wisconsin, Inc. to replace the roof and siding on his residence, and he was unsatisfied with Pro Seamless’s performance. Following completion of these projects, Bikowski sued Pro Seamless for breach of contract and trade violation claims and Pro Seamless counterclaimed for unpaid contract amounts. Bikowski appeals the judgment entered by the circuit court following a bench trial. According to Bikowski, the court erred when it determined that he failed to meet his burden of proof on portions of his breach of contract claims, and when it denied relief for Pro Seamless’s alleged violations of various trade practices. We reject Bikowski’s arguments and affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Todd DiMiceli

Case No.: 2020AP1302-CR

Officials: Kloppenburg, Fitzpatrick, and Graham, JJ.

Focus: Motion to Suppress Evidence Denied

Todd DiMiceli appeals a judgment of conviction for two counts of possession of child pornography. He argues that the circuit court erroneously denied his motion to suppress evidence derived from a court-ordered subpoena for records from his internet service provider. Specifically, DiMiceli contends that the evidence should be suppressed because law enforcement did not serve the subpoena within five days as required by WIS. STAT. § 968.375(6) (2019-20). We conclude that, under the circumstances, law enforcement’s noncompliance with § 968.375(6) was a technical irregularity or error, and that it did not affect DiMiceli’s substantial rights. Therefore, based on § 968.375(12), we affirm the circuit court.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Antonio K. Davenport

Case No.: 2020AP1341-CR

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

Focus: Sentencing Guidelines – Resentencing

Antonio Davenport challenges the prison sentence he received after the revocation of his probation. Davenport contends that he is entitled to resentencing because the circuit court judge who imposed his revocation sentence did not review the original sentencing transcript or otherwise have a full understanding of the entire record. We affirm.

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WI Court of Appeals – District IV

Case Name: Estate of Kenneth D. Palmer v. Roger A. Palmer, et al.,

Case No.: 2020AP1480

Officials: Kloppenburg, Fitzpatrick, and Graham, JJ.

Focus: Estate – Real Property Dispute

Roger Palmer appeals a circuit court judgment that partitioned a parcel of real property between Roger and the estate of his brother, Kenneth Palmer. Roger and the estate dispute whether Roger is the sole owner of the property. Roger argues that the circuit court erred by relying on an invalid 2006 deed to conclude that the parties own the property as tenants in common. We affirm.

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WI Court of Appeals – District IV

Case Name: Marquette County v. T.W.,

Case No.: 2020AP1908

Officials: BLANCHARD, P.J.

Focus: Involuntary Commitment and Medication

In September 2019, the Circuit Court of Marquette County entered an order involuntarily committing T.W. for mental health treatment for six months, pursuant to WIS. STAT. § 51.20. The court’s order was based on jury findings at a trial that T.W. was mentally ill, a danger to himself or others, and a proper subject for treatment. The petition for commitment by the Marquette County corporation counsel involved allegations of violent conduct by T.W. After hearing additional evidence following the jury trial, the circuit court entered an order for involuntary medication during the mental health commitment.  T.W. appeals both orders, arguing that the court either erroneously exercised its discretion or erred as a matter of law in allowing the admission of several categories of evidence at trial. Marquette County argues that this appeal is moot, that T.W. forfeited his merits arguments by failing to raise them in the circuit court, that the court did not err in allowing the evidence (but that, even if it did, any errors were harmless), and that there was no plain error. I conclude that the County fails to establish that the appeal is moot, but I affirm for the reasons explained below.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Nicholas Reed Adell

Case No.: 2020AP2135-CR

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

Focus: Unlawful-stop Claim – Reasonable Suspicion – Suppression of Evidence

The State of Wisconsin appeals the circuit court’s order granting Nicholas Reed Adell’s motion to suppress evidence arising from a traffic stop. The circuit court determined that the arresting deputy lacked reasonable suspicion to extend the traffic stop to administer field sobriety tests and, on that basis, granted Adell’s motion to suppress the field sobriety test results and subsequent evidence of operating with a prohibited alcohol concentration. The State argues that the circuit court erroneously granted the motion to suppress.

We conclude that the deputy properly extended the stop to investigate whether Adell was operating with a prohibited alcohol concentration because the totality of the facts and circumstances gave rise to reasonable suspicion of that offense, and that the deputy lawfully administered field sobriety tests in furtherance of that investigation because the tests were likely to support or dispel the deputy’s suspicion. Accordingly, we reverse the circuit court’s order and remand for further proceedings.

Recommended for Publication

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Thomas M. Parkman

Case No.: 2021AP27-CR

Officials: NASHOLD, J.

Focus: Sentence Modification

The issue in this appeal is whether the COVID-19 pandemic, as it may affect Thomas M. Parkman, is a “new factor” for purposes of modifying Parkman’s sentence. See State v. Harbor, 2011 WI 28, ¶35, 333 Wis. 2d 53, 797 N.W.2d 828. Parkman pled guilty to three misdemeanor offenses stemming from his use of pepper spray against T.S., his ex-girlfriend and the mother of his child. On February 27, 2020—at least several weeks before the COVID-19 virus became a widely recognized public-health risk in Wisconsin— the circuit court sentenced Parkman to six months’ incarceration in the Dane County Jail. The circuit court has since stayed Parkman’s sentence multiple times, including pending this appeal, on acknowledgment of the dangers that the COVID-19 virus poses to inmates.

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