Weekly Case Digests – November 15, 2021 – November 19, 2021

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: New West, L.P., et al., v. Marcia L. Fudge

Case No.: 21-1372

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

Focus: Breach-of-contract – Conversion of Property

After the City of Joliet, Illinois, condemned a housing development managed by New West and New Bluff (collectively New West), and paid $15 million for the properties, the parties disagreed about the appropriate disposition of a fund worth roughly $2.7 million. This fund established under contracts between New West and the Department of Housing Development – had a stated goal of ensuring that money would be available for maintenance and repair of the properties if New West defaulted on its obligations to tenants or the Department. New West maintains that, because it is no longer responsible for maintenance or repair, it should receive the money. But the Department has refused New West’s demands for payment and is holding the money for the benefit of Joliet, which succeeded New West as the buildings’ proprietor.

A dispute about the disposition of the reserve fund arose during the condemnation proceeding, but we held in Joliet v. New West, L.P., 921 F.3d 693 (7^th Cir. 2019) (New West V), that the issue calls for a separate suit with the Department as defendant. This suit is the result. The district judge granted the Department’s motion for summary judgment. 2021 U.S. Dist. LEXIS (N.D. I11. Feb. 4, 2021).

New West V reaches two conclusions pertinent to current suit: first, that 12 U.S.C. §1702 waives the Department’s sovereign immunity to a claim based on a contract; second, that only a contract, rather than a statute or regulation, offers New West any prospect of success. The parties take these conclusions as given, so we need to resolve a dispute about the meaning of the contracts between New West and the Department.

To have a claim for tortious conversion of property, New West must first establish that the money in the reserve find is its property. In other words, to win a tort claim New West must first win its contract claim – and if it had been able to prevail on the contract claim (which it didn’t) New West would not have needed a conversion claim as a fallback.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Maximo Fernandez, et al., v. Kerry, Inc.,

Case No.: 21-1067

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

Focus: Collective Bargaining Agreement – Arbitration

Five persons who used to work for Kerry, Inc., in Illinois filed this suit as a class action in state court. They seek damages under the state’s Biometric Information Privacy Act (BIPA or the Act), 740 ILCS 14/5 to 14/25. The Act requires private entities to obtain consent before collecting or using biometric information, including fingerprints. (It has other provisions that we need not discuss.)

In 2011 Kerry began requiring workers to use fingerprints to clock in and out. Plaintiffs say that Kerry did not obtain their consent before doing so. Kerry removed the suit to federal court under 28 U.S.C. §1453, asserting that the class’s total damages could exceed $5 million and that the statutory requirement of some diverse citizenship is satisfied. Plaintiffs do not deny these jurisdictional allegations. Kerry asked the district court to dismiss the suit as preempted by §301 of the Labor Management Relations Act, 29 U.S.C. §185, because resolution depends on interpretation of collective-bargaining agreements between Kerry and the union that represented plaintiffs while they worked there. Federal law prevents states from interfering in relations between unions and private employers. We held in Miller v. Southwest Airlines Co., 926 F.3d 898, 903–05 (7th Cir. 2019), that provisions in the Railway Labor Act parallel to §301 prohibit workers from bypassing their unions and engaging in direct bargaining with their employers about how to clock in and out.

Anticipating that we would find Miller controlling, plaintiffs ask us to send this dispute to arbitration. Apart from the fact that plaintiffs did not make such a request in the district court, there is the fact that collective-bargaining agreements usually leave grievances to be worked out between the union and management. Counsel said at argument that the collective-bargaining agreements in question do not permit workers to demand arbitration if the union is content to forego that procedure, and they added that the union—Local 781 of the Miscellaneous Warehousemen, Airline, Automotive Parts, Service, Tire and Rental, Chemical and Petroleum, Ice, Paper, and Related Clerical and Production Employees Union—has not requested arbitration. We are not authorized to usurp the union’s authority to decide whether a grievance with management needs an arbitrator’s resolution (or, indeed, whether there is any grievance to resolve). And plaintiffs have not contended that Local 781’s choices violate its duty of fair representation, nor have they joined it as a defendant.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Christos Dimas v. George Stergiadis

Case No.: 20-1196

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

Focus: Breach of Contract – Equalize Capital Contributions

Christos Dimas appeals a judgment ordering him to pay his former business partner, George Stergiadis, for capital contributions Stergiadis made to their failed business, 1600 South, LLC. Stergiadis’s recovery effort began in 2008 when he sued Dimas and their other business partner, Dean Theo, in Illinois state court. But Dimas’s bankruptcy filings—seven petitions in six years—stalled the suit. Stergiadis filed a proof of claim in the most recent bankruptcy for the capital contributions. Dimas objected to the claim, but the bankruptcy court approved it in the amount of $618,974 after an evidentiary hearing. The court reasoned that, under Illinois law, the partners had an implied-in-fact contract to equalize capital contributions to the LLC, and Dimas thus owed Stergiadis the awarded amount to achieve equality. The district court affirmed.

On appeal, Dimas argues that the bankruptcy court misinterpreted 1600 South’s operating agreement. Specifically, he insists that the operating agreement’s plain language precludes an implied-in-fact contract to equalize capital contributions. He also contends that the bankruptcy court erred when it relied on extrinsic evidence to find an implied-in-fact contract existed among 1600 South’s partners. We disagree, and thus affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: David Minnick v. Dan Winkleski, Warden,

Case No.: 20-3253

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

Focus: Ineffective Assistance of Counsel

David Minnick pleaded no contest in Wisconsin state court to several crimes that resulted from a violent confrontation involving his then‐wife. He received sentences totaling 27 years of initial confinement. Since then, Minnick has brought a series of unsuccessful challenges to his convictions in state and federal courts.

The district court denied Minnick’s request for federal habeas relief under 28 U.S.C. § 2254. That court decided that Minnick’s trial counsel was not ineffective for advising him that a term of not more than ten years of initial confinement was likely. The court also ruled that Minnick did not show that any reasonable trial counsel would have advised him of the possibility of withdrawing his no contest pleas before sentencing. So not offering that argument did not deny Minnick the right to effective postconviction counsel.

Although Minnick’s claims could have been analyzed differently—including whether the state court’s decision on his trial counsel’s sentencing advice warranted deference under the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254—the correct result was reached. We affirm the denial of habeas relief.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Chicago Teachers Union, et al., v. Board of Education of the City of Chicago

Case No.: 20-1167

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

Focus: Summary Judgment – Title VII Violation

Citing an alleged budget deficit, the Board of Education of the City of Chicago (“the Board”) laid off approximately 1,077 teachers and 393 paraprofessional educators in the summer of 2011. The Chicago Teachers Union and a class of teachers (collectively “CTU”) filed suit against the Board alleging that the layoffs discriminated against African American teachers and paraprofessionals in violation of Title VII of the Civil Rights Acts of 1964 and the Civil Rights Act of 1991, 42 U.S.C. §§ 2000e et seq. The district court granted summary judgment in favor of the Board on the parties’ cross-motions for summary judgment. CTU appeals, but we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. William A. Julius

Case No.: 20-2451

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

Focus: Admission of Evidence – Expert Testimony

A jury found that William Julius set fire to the building where his ex-girlfriend was living after she spurned his attempts to rekindle their relationship. On appeal Julius argues that the district court erred in allowing lay witnesses to offer expert testimony about the process of extracting data from his cellphone and in cutting off his cross-examination of one of those witnesses. We find no reversible errors and affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Rock River Health Care, LLC, et al., v. Theresa A. Eagleson

Case No.: 19-2750

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

Focus: Due Process Violation

Plaintiffs Rock River Health Care, LLC, International Nursing & Rehab Center, LLC, and Island City Rehabilitation Center, LLC, (collectively the “Providers”) brought suit under 42 U.S.C. § 1983 and the Medicaid Act, 42 U.S.C. § 1396a et seq., alleging that the Illinois Department of Healthcare and Family Services (the “Department”) violated constitutional and statutory law in retroactively recalculating their Medicaid reimbursement rates for the three- month period of January through March 2016. The district court granted the Department’s motion to dismiss the case. The Providers now appeal that decision only as to the dismissal of the procedural due process claim. Accordingly, we do not address the other claims raised in the district court.

The Providers in this case operate long-term nursing care facilities in Illinois, and receive per diem reimbursement for Medicaid beneficiaries from the Department, which administers the state’s Medicaid program. Medicaid is a voluntary program that operates through a state and federal partnership, for the purpose of providing medical care for indigent, elderly, and disabled persons. States participating in Medicaid must administer their programs in compliance with the requirements of Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq., known as the Medicaid Act. The Department provides per diem reimbursements to state-licensed care facilities for the care provided to Medicaid recipients, at a reimbursement rate calculated based on the type and amount of services furnished to each resident. 89 Ill. Admin. Code §140.530(a). The reimbursement consists of three components: (1) support cost; (2) nursing cost; and (3) capital cost.

This case concerns only the nursing component, which covers the wages and benefits for the nursing staff and social workers, payments for direct care consultants, and payment for health care supplies used by or for residents. As the district court noted, by the time that the state reimburses nursing facilities under the program, those facilities have already provided the services to the residents and generally have also already paid the nursing staff. The calculation of the proper rate of reimbursement for nursing facilities is updated on a quarterly basis.

Once the review is concluded, under the Code the Department provides the final determination to the facility, including its conclusions as to the accuracy of the data, and as to any reclassification of residents and recalculation of the reimbursement rates. Id. The facility can request reconsideration of any reclassification within 30 days. In that appeal, the facility can include explanations as to how the submitted data supported the classification of the resident and requires reconsideration, but cannot submit documentation that was not provided to the Department during the initial review. Id. at § 147.340(u). The reconsideration is conducted by individuals that were not directly involved in the initial review, and the reconsideration decision is made within 120 days. Id. at § 147.340(v).

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: United States of America v. Eddie C. Hicks

Case No.: 20-2970

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

Focus: Plain Error – RICO

For about 30 years, Eddie Hicks worked as a police officer in Chicago. A jury concluded that he used his position to steal drugs and guns from pushers and to extort money from them. Hicks and his confederates (some on the force and others who used fake badges to make people believe they were) obtained from informants and other officers information about where drugs might be found. Then they used police cars and other departmental equipment to search drug houses and cars thought to be carrying drugs. They used forged search warrants to reduce resistance to these tactics. After stealing drugs and guns, Hicks and his crew let the suspects go—sometimes after exchanging the contraband for cash. Contraband that could not be sold back to the dealers was sold on the black market and the proceeds divided among members of the crew. See United States v. Hargrove, 508 F.3d 445, 447–48 (7th Cir. 2007) (affirming the convictions of one of Hicks’s confederates).

The jury convicted Hicks of eight felonies, including failure to appear on the day initially set for his trial. (He was a fugitive for about 15 years.) Sentenced to a total of 146 months’ imprisonment, he does not contest the sufficiency of the evidence. It was overwhelming. But he does contest the convictions on three counts: Count 1, which charged him with violating the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §1962, and Counts 7 and 8, which charged him with stealing money belonging to the United States, 18 U.S.C. §641. The latter crimes reflect the fact that the FBI got wind of Hicks’s operations and provided money as bait in places they thought he might rob. Not knowing that he was being investigated, Hicks and his crew took the bait. Because the money Hicks stole was property of the United States, he was charged with violating §641.

A person violates RICO by running or managing an “enterprise” through a “pattern of racketeering activity,” which the statute further defines as the commission of listed predicate crimes. The pattern of racketeering activity can be committed directly or through a conspiracy. To become a pattern, predicate acts must be separate from each other but related in some way. Conviction also depends on proof that the activities of the enterprise were in or affected interstate commerce. Applying RICO is a notoriously complex endeavor, see H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229 (1989), and Hicks maintains that the jury at his trial could well have confused the conspiracy with the “enterprise” or treated the pattern of other crimes (such as stealing or possessing drugs and guns) as if it were the enterprise or the conspiracy, or perhaps misunderstood how predicate offenses must be related to form a pattern.

The problem with this line of argument lies in phrases such as “could well” and words such as “perhaps.” We cannot look inside jurors’ minds to see whether they were confused. All a court of appeals can examine is objective events, such as the terms of the indictment, the language of the jury instructions, and the arguments of counsel. Yet Hicks did not contest any of these matters in the district court. He did not move to dismiss the indictment, so we must assume that it states a technically sufficient RICO charge. (And, to our eyes, it does.) Hicks did not object to any of the jury instructions; to the contrary, his counsel approved them. Nor did Hicks request any additional instructions in order to help the jurors keep the different concepts straight. Finally, Hicks did not object to the prosecutor’s closing arguments about what needed to be proved, and how, in the prosecutor’s view, that had been accomplished. This combination of waiver (approving the jury instructions) and forfeiture (not objecting to the indictment or argument; not asking for more disambiguation from the judge) leaves Hicks in a hopeless position on appeal. We do not see anything approaching plain error with respect to the issues that were forfeited—and those that were waived cannot be called error at all.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Michael White, et al., v. Illinois State Police, et al.,

Case No.: 20-2842

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

Focus: Concealed Carry Act – 2^nd Amendment Violation – Jurisdiction

Illinois’s Firearm Concealed Carry Act creates a scheme for licensing individuals to carry concealed firearms in public. Michael White applied for a concealed carry license on two occasions. Both times the State denied his application. White unsuccessfully appealed the first denial in Illinois state court. Following the second denial, White and the Illinois State Rifle Association (ISRA) filed this lawsuit in federal court challenging the constitutionality of the Concealed Carry Act. The defendants—state entities and officials tasked with enforcing the Act—moved to dismiss the lawsuit. The district court granted the motion with prejudice, and the plaintiffs now appeal.

We affirm. ISRA lacks Article III standing, so the district court correctly dismissed its claims. And White’s facial challenges to the Concealed Carry Act are precluded by the judgment in his state court lawsuit challenging the denial of his first application. With these claims out of the way, our review on the merits is narrow. We ask only whether the Concealed Carry Act violates the Second Amendment as applied to the State’s denial of White’s second application. We hold that it does not. White has two criminal convictions—including one for unlawful use of a firearm—and multiple gun-related arrests. Illinois’s individualized determination that White’s criminal history renders him too dangerous to carry a concealed firearm in public survives intermediate scrutiny.

Though we affirm, we modify the judgment to reflect that ISRA’s claims are dismissed without prejudice. The district court dismissed ISRA’s claims for lack of jurisdiction, and a dismissal for lack of jurisdiction cannot be with prejudice.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Anthony Lloyd Murry v. Merrick B. Garland

Case No.: 20-3109

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

Focus: Immigration – Removal Order

Anthony Lloyd Murry, a Jamaican citizen, petitions for review of an order of the Board of Immigration Appeals denying him relief from removal. Murry fears that private citizens may confront him, a gay man, about his sexual orientation or the government may punish him for violating Jamaica’s anti-sodomy laws. But Jamaica rarely enforces its anti-sodomy laws for consensual sexual relations, and recent reports show growing public support for gay rights. Because substantial evidence supports the Board’s decision that Murry does not face a likelihood of state-sanctioned persecution, we deny Murry’s petition.

Petition denied

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7^th Circuit Court of Appeals

Case Name: Ricard M. Arnold v. Reed A. Richardson, Warden,

Case No.: 20-2701

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

Focus: Writ of Habeas Corpus – Innocence Exception

This case returns to us after we remanded to the district court for an evidentiary hearing on whether the petitioner could overcome the one‐year time bar to filing his petition for a writ of habeas corpus, under the actual innocence exception. After holding the hearing, the district court determined that Arnold failed to meet the rigorous standard for overcoming the time bar set in Schlup v. Delo, 513 U.S. 298 (1995), and dismissed the petition. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Adam Sprenger

Case No.: 19-2779

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

Focus: Plea Withdrawal

Adam Sprenger pled guilty to production and possession of child pornography pursuant to a plea agreement. He now seeks to withdraw his guilty plea and invalidate the entire agreement on the ground that the legal theory upon which his production conviction rests is invalid. When Sprenger initially entered into the plea agreement, his admitted conduct was sufficient to provide the factual basis for his production conviction. He contends that’s no longer the case, and thus, he is entitled to withdraw his plea to that offense. The government agrees with Sprenger on this point, as do we, so we vacate his production conviction.

We do not agree with Sprenger, however, that he is likewise entitled to withdraw his plea to the separate possession offense based on his now-invalid production conviction. The plea agreement still provides an adequate factual basis for the possession conviction, which supports that Sprenger’s plea to the possession offense remains knowing and voluntary notwithstanding the invalidity of the production conviction. We therefore affirm Sprenger’s possession conviction, leaving the still-valid portions of the plea agreement intact.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Giavonni Cunningham

Case No.: 20-3203

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

Focus: Sentencing Guidelines

Giavonni Cunningham appeals his sentence for unlawful possession of ammunition, 18 U.S.C. § 922(g)(1), on the ground that the district court miscalculated his range under the Sentencing Guidelines. He contends that the court erred in determining that one of his two convictions for aggravated battery under Illinois law, 720 ILCS 5/12-4 (2010), was a “crime of violence.” In Cunningham’s view, the court should have relied on unspecified information from the Illinois Department of Corrections to find that he was convicted under a subsection of the statute that does not categorically define a crime of violence. But the court-certified record of conviction—which was consistent with criminal records from two separate police departments—shows that Cunningham was convicted under 720 ILCS 5/12-4(a), which, he concedes, is a crime of violence. Because the district court appropriately relied on the certified record, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Alejandro Campos-Rivera

Case No.: 19-3214

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

Focus: Sufficiency of Evidence

A grand jury indicted Alejandro Campos-Rivera for unlawfully reentering the United States after removal. See 8 U.S.C. § 1326(a). He was initially represented by an assistant federal public defender, but counsel moved to withdraw at Campos-Rivera’s request based on an irreconcilable conflict between the two. The motion was granted, and a new lawyer was appointed.

Campos-Rivera then filed a half-dozen pro se motions raising issues that his new attorney declined to pursue. The district judge told him that he could not proceed pro se and through counsel. Campos-Rivera asked the judge to dismiss his attorney and appoint a third. The judge declined to do so, explaining that a disagreement about motion strategy did not justify the appointment of yet another attorney. The judge gave Campos-Rivera a choice: move forward with his current lawyer or proceed pro se. Campos-Rivera chose the latter.

The judge then addressed and denied the pro se motions. The case proceeded to a bench trial on stipulated facts, and the judge found Campos-Rivera guilty. His appeal focuses on the judge’s refusal to appoint a third lawyer and the sufficiency of the evidence on the intent element of the crime.

We affirm. The judge was right: a disagreement between attorney and client over pretrial motions is not grounds for the appointment of a new attorney. In any event, Campos-Rivera validly waived his right to counsel; the judge conducted a comprehensive waiver colloquy to ensure that the decision was fully informed and voluntary. And Campos-Rivera’s challenge to the sufficiency of the evidence fails for two reasons. First, § 1326(a) is a general-intent crime. The government need only prove that the defendant knowingly reentered the United States, not that he intended to do so unlawfully. The stipulated facts support an inference of knowing reentry—indeed, that is the only reasonable inference here. Second, Campos-Rivera complains that the judge failed to make a specific factual finding regarding the intent element. But no such finding was necessary. In a bench trial, a general finding of guilt suffices unless a party asks for specific findings of fact. See FED. R. CRIM. P. 23(c). Campos-Rivera did not make that request, so the judge’s general finding of guilt sufficed.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Eric Nyandwi v. Merrick B. Garland

Case No.: 20-3215

Officials: SYKES, Chief Judge, and FLAUM and KIRSCH, Circuit Judges.

Focus: Immigration – Removal Order

Eric Nyandwi, facing removal from the United States because of multiple felony convictions, applied for a deferral of removal under the Convention Against Torture. He claimed that he faced a substantial risk of torture if returned to the country of Burundi, of which he is a citizen. Both an immigration judge and the Board of Immigration Appeals found no such substantial risk and so denied his application. In this petition for review, Nyandwi asks us to remand the case, arguing that the immigration judge and the Board committed various legal errors when they denied his application. We disagree, find no error, and therefore deny the petition.

Petition denied

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7^th Circuit Court of Appeals

Case Name: Association of American Physicians & Surgeons Incorporated

Case No.: 20-3072

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

Focus: Sherman Act Violation – Failure to State Claim

In Bell Atlantic Corp. v. Twombly, the Supreme Court considered whether a complaint alleging a violation of § 1 of the Sherman Act “can survive a motion to dismiss when it alleges that major telecommunications providers engaged in certain parallel conduct unfavorable to competition, absent some factual context suggesting agreement, as distinct from identical, independent action.” 550 U.S. 544, 548–49 (2007). The Court held that such a complaint “must be dismissed” for failure to allege “enough facts to state a claim to relief that is plausible on its face.” Id. at 570.

Swap major telecommunications providers for hospitals, insurers, and the American Board of Medical Specialties, add an accompanying state-law deceptive trade practices claim, and you get this case. The Association of American Physicians & Surgeons has alleged that the Board orchestrated a nationwide conspiracy to restrain trade in the market for medical care. But its complaint comes nowhere close to stating a claim under the standard announced in Twombly. The district court was right to dismiss the case.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: Eland Fisheree LLC, et al., v. Jennifer Brennan, et al.,

Case No.: 2020AP45

Officials: HRUZ, J.

Focus: Abuse of Discretion – Sufficiency of Evidence

Jennifer Brennan, Allen Osterbrink, and Eland Fisheree (collectively, the defendants) appeal from a $10,690.90 small claims judgment in favor of Eland Fisheree LLC (the LLC), James Stoltz, Cynthia VanLanen, and Denise Larson (collectively with the LLC, the plaintiffs).  This dispute arose after the plaintiffs took control of an informal organization that coordinated an annual fishing event in Eland, Wisconsin.  After taking control, the plaintiffs filed this small claims action to recover funds from the former leaders of the informal group—the defendants. The circuit court found that the plaintiffs successfully created a successor organization to coordinate the fishing event, and that they were entitled to their requested damages along with costs.

On appeal, the defendants argue that the circuit court lacked sufficient evidence to find the defendants liable; that it erroneously exercised its discretion in denying their motion to reconsider; and that we should reverse in the interest of justice. We conclude that sufficient evidence existed for the court to find the defendants liable; however, the evidence only supported an award of $9,960.99 in damages and costs. We also conclude that the court did not erroneously exercise its discretion in effectively denying the motion to reconsider, nor is discretionary reversal appropriate in this case. We therefore affirm the judgment in part, reverse in part, and remand for the court to modify the judgment to $9,960.99 in damages and costs.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Rodney Lewis Bowman, Sr.,

Case No.: 2020AP856-CR; 2020AP857-CR

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

Focus: Ineffective Assistance of Counsel

Rodney Lewis Bowman, Sr., appeals from the judgments of conviction for charges of child abuse, strangulation, and witness intimidation, all arising out of his actions toward his sixteen-year-old daughter. He also appeals the trial court orders denying his motion for postconviction relief without a hearing. Bowman argues that the trial court erroneously admitted his daughter’s statements under the doctrine of forfeiture by wrongdoing. Further, he contends that trial counsel was ineffective due to an actual conflict of interest over attempting to contact his daughter. We reject Bowman’s arguments, and accordingly, we affirm.

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WI Court of Appeals – District III

Case Name: Outagamie County v. D.G.M.,

Case No.: 2020AP967

Officials: HRUZ, J.

Focus: Involuntary Commitment and Medication

Daniel appeals from an order for commitment and an order for involuntary medication and treatment, both entered pursuant to WIS. STAT. ch. 51. Daniel challenges the sufficiency of the evidence establishing that he was mentally ill, a proper subject for treatment, dangerous, and incompetent to refuse medication. We affirm.

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WI Court of Appeals – District III

Case Name: Green Bay Professional Police Association, et al., v. City of Green Bay

Case No.: 2021AP102

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

Focus: Due Process Violation – Arbitration Award

The Green Bay Professional Police Association (hereinafter, “the Association”) and Andrew Weiss (hereinafter, “Weiss”), appeal a summary judgment granted in favor of the City of Green Bay (hereinafter, “the City”), confirming an arbitration award. The arbitrator concluded that Weiss violated various Green Bay Police Department (hereinafter, “the Department”) policies by accessing information contained in confidential Department files without authorization and by leaking that information to third parties outside of the Department. The arbitrator therefore determined that the Department had cause to remove Weiss from his position as detective and assign him to the patrol division—which resulted in Weiss’s loss of an eighty-dollar monthly stipend.

The Association argues that the circuit court erred by failing to conclude that Weiss’s due process rights were violated by the City taking his property without it having first provided Weiss with notice of all of his claimed Department policy violations. More specifically, the Association asserts that Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), limits a municipality’s ability to impose discipline to only those infractions actually identified in a pre-determination notice and at a pre-determination hearing, and that discipline can only be imposed based on allegations identified in the “Loudermill notice.” The Association claims that Weiss was denied due process because, prior to a hearing on his alleged policy violations, the Department failed to provide him with notice in a Formal Complaint Against Personnel (hereinafter, “Formal Complaint”) of all of the policies it later determined that he violated and on which it based its disciplinary decision. The Association further argues that the court erred in affirming the arbitration award because the arbitrator manifestly misconstrued the law provided in Loudermill. Finally, the Association asserts that the arbitrator misconstrued the labor agreement in determining there was just cause for Weiss’s removal from his detective assignment.

We conclude that the circuit court properly rejected the Association’s arguments and confirmed the arbitration award. The pre-disciplinary oral and written notices provided to Weiss, as well as the interviews and the pre-determination meeting itself, collectively gave Weiss actual notice of the grounds for his discipline and an opportunity to be heard, such that the requirements of Loudermill were satisfied. That process coupled with Weiss’s extensive post-disciplinary opportunities for review fully satisfied his due process rights. We therefore reject the Association’s claim that the arbitrator misconstrued the law and the labor agreement by finding that the Department had cause to remove Weiss from his detective assignment. Accordingly, we affirm.

Recommended for Publication

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Philip N. Holland

Case No.: 2020AP18-CR

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

Focus: Plain Error – Jury Instructions

Philip N. Holland appeals a judgment of conviction for first-degree intentional homicide, theft of moveable property and possession of an illegally obtained prescription. He argues the circuit court erroneously denied his motion to suppress statements he made during custodial interrogation, the court should have granted his mistrial motion following a witness’s surprise testimony that Holland had told her he had committed a previous murder, and a jury instruction was insufficient to apprise the jury of the law of self-defense so as to constitute plain error. We reject Holland’s arguments and affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Kody R. Kohn

Case No.: 2020AP2147-CR

Officials: GROGAN, J.

Focus: Suppression of Evidence – Blood Test

Kody R. Kohn appeals from a judgment of conviction after a jury found him guilty of operating a motor vehicle while intoxicated (OWI) and operating with a prohibited alcohol concentration (PAC), both as second offenses, and of bail jumping. On appeal, Kohn asserts the trial court erred when it: (1) denied his pre-trial motion to suppress evidence arising from the blood draw; (2) excluded five exhibits Kohn intended to introduce into evidence during cross-examination of the State’s blood analyst at trial thereby violating his right to due process; and (3) denied his motions to dismiss and for judgment notwithstanding the verdict as to the bail-jumping charge. Because the trial court did not err in any respect, this court affirms.

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WI Court of Appeals – District II

Case Name: Susan Kathleen Haddorff v. Benjamin Froyen Haddorff

Case No.: 2021AP815

Officials: REILLY, J.

Focus: Contempt of Court – Placement Order

Benjamin Froyen Haddorff appeals from the circuit court’s order denying his motion for contempt, alleging that Susan Kathleen Haddorff, his ex-wife, failed to abide by the placement order concerning the parties’ minor children. The court determined that while Susan’s actions were intentional, pursuant to WIS. STAT. § 767.471(5)(b), she did not act unreasonably. We affirm the circuit court’s order.

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WI Court of Appeals – District I

Case Name: Milwaukee Police Supervisors Organization, et al., v. City of Milwaukee, at al.,

Case No.: 2019AP1319

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

Focus: Collective Bargaining Agreement – Duty Disability Retirement Benefits

The City of Milwaukee and the Milwaukee Employees’ Retirement System (MERS) appeal the order granting summary judgment to the Milwaukee Police Supervisors Organization (MPSO) and the Milwaukee Professional Firefighters’ Association Local 215 (Local 215) on the issue of the proper calculation of Duty Disability Retirement (DDR) benefits under their respective collective bargaining agreements (CBAs). We agree with the circuit court’s conclusion that the MPSO agreement did not require contribution into the pension plan in order to receive the pension offset payment, and, therefore, we affirm the court’s order as to MPSO. However, we conclude that Local 215’s agreement required members to contribute into the pension plan in order to receive the pension offset payment; and therefore, we reverse this part of the circuit court order, and remand with directions to grant summary judgment to the City and MERS on this issue.

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WI Court of Appeals – District I

Case Name: Saint John’s Communities, Inc., v. City of Milwaukee

Case No.: 2020AP1696

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

Focus: Property Tax Exemption

The City of Milwaukee appeals an order granting summary judgment in favor of Saint John’s Communities, Inc., relating to a property tax exemption dispute. Saint John’s constructed a new high-rise tower on property it owns that had previously been granted an exemption. The City assessed property tax on the new tower for 2019, on the ground that Saint John’s did not timely submit a property tax exemption application for the newly constructed tower as required under the statutes. Saint John’s challenged the assessment of the tax, and the circuit court agreed with Saint John’s that it was not required to file a new application in order to continue the property tax exemption that already existed on its property. The circuit court therefore ordered that the property taxes paid by Saint John’s for 2019 be refunded, with interest.

We, however, conclude that Saint John’s claim filed with the City was statutorily deficient, and therefore this action should have been dismissed. Furthermore, Saint John’s claim of a violation of the uniformity clause of the Wisconsin Constitution also fails based on that deficiency. Accordingly, we reverse the order of the circuit court, and remand this matter for the entry of an order dismissing Saint John’s complaint against the City in its entirety.

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WI Court of Appeals – District II

Case Name: Century Fence Company v. America Sewer Services, Inc., et al.,

Case No.: 2019AP2432

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

Focus: Court Error – Theft-by-contractor

Century Fence Company appeals from an order of the circuit court dismissing its claim under WIS. STAT. § 779.16 (2019-20) for theft by contractor. Century contends it is the victim of such theft committed by American Sewer Services, Inc. and Dennis Biondich and that following the court trial on the claim, the circuit court erroneously held to the contrary. We agree, and we reverse and remand for further proceedings.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Derek J. Degroot

Case No.: 2020AP140-CR; 2020AP141-CR; 2020AP142-CR

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

Focus: Ineffective Assistance of Counsel

In these consolidated appeals, Derek J. Degroot, pro se, appeals from judgments and an order denying his motion for postconviction relief. Degroot argues: (1) he was improperly denied the right to self-representation; (2) his trial counsel was ineffective in numerous ways; and (3) the prosecutor and the circuit court engaged in misconduct. We disagree in all regards and affirm.

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WI Court of Appeals – District II

Case Name: City of Port Washington v. Sandra J. Koziol

Case No.: 2021AP449-FT; 2021AP450-FT

Officials: NEUBAUER, J.

Focus: Motion for Reconsideration Denied

In this consolidated appeal, Sandra J. Koziol appeals from orders of the circuit court granting the City of Port Washington’s motion to dismiss her appeal from municipal court convictions and denying her motion to reconsider the dismissal. The circuit court found that Koziol had failed to perfect her appeal to that court by serving a written notice of her appeal with the City as required by Wisconsin statute. We affirm.

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WI Court of Appeals – District IV

Case Name: Rapid Die and Molding Co., v. Royal Bancshares Inc.,

Case No.: 2020AP1552

Officials: Fitzpatrick, Graham, and Nashold, JJ.

Focus: Breach of Contract and Negligence Claim

Rapid Die and Molding Co. appeals an order of the Grant County Circuit Court dismissing its claims against Royal Bancshares, Inc. One of RDM’s employees stole funds from the business checking account that RDM maintained with Royal Bank. RDM’s complaint alleged that Royal Bank is liable for the stolen funds because: (1) Royal Bank breached the parties’ contract regarding the terms of the checking account; and (2) Royal Bank was negligent in that Royal Bank “breached its duty to act with reasonable care to protect RDM’s funds” in that account.

In response, Royal Bank filed in the circuit court motions to dismiss RDM’s causes of action for failure to state a claim upon which relief can be granted. Royal Bank argued that the complaint did not allege facts to plausibly suggest that Royal Bank breached its contract with RDM and that RDM’s negligence claim is barred by Wisconsin’s version of the Uniform Fiduciaries Act. The circuit court granted Royal Bank’s motion on each claim and dismissed RDM’s complaint without prejudice to RDM filing an amended complaint on RDM’s second cause of action. RDM appeals. We affirm the circuit court’s order

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WI Supreme Court Digests

WI Supreme Court

Case Name: State of Wisconsin v. Manuel Garcia

Case No.: 2021 WI 76

Focus: Court of Appeals Review

The court of appeals’ decision is affirmed by an equally divided court.

Affirmed

Concur:

Dissent:

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