Weekly Case Digests – February 21, 2022 – February 25, 2022

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Mark Anderson v. Deanna Brookhart

Case No.: 20-3330

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

Focus: Habeas Relief – Sufficiency of Evidence

An Illinois jury found Mark Anderson guilty of murdering one man outside a Chicago sandwich shop and shooting at another who had fled. Anderson seeks habeas relief, arguing that the jury lacked sufficient evidence to convict him of shooting towards the man who had fled and that the Illinois Appellate Court unreasonably applied Supreme Court precedent in ruling otherwise. Because the Illinois Appellate Court reasonably applied Jackson v. Virginia, 443 U.S. 307 (1979), in upholding Anderson’s conviction, we affirm the denial of habeas relief.

Affirmed
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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Darryl Clarence Agnew

Case No.: 2021AP296-CR

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

Focus: Ineffective Assistance of Counsel

Darryl Clarence Agnew appeals a judgment of conviction, following a jury trial, of possession of between one and five grams of cocaine, with the intent to deliver, as a second or subsequent offense. Agnew also appeals from the order denying his postconviction motion for relief. Agnew contends that his trial attorneys were ineffective for failing to move to disclose the identities of the two confidential informants whose statements were included in a search warrant affidavit. We affirm.

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WI Court of Appeals – District IV

Case Name: Portage County v. C.K.S.,

Case No.: 2021AP1291-FT

Officials: Sheila T. Reiff Clerk of Court of Appeals

Focus: Order Correcting Opinion

PLEASE TAKE NOTICE that a correction has been made to the circuit court judge in the appeal line. 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 II

Case Name: State of Wisconsin v. Terrence T. Whitaker

Case No.: 2020AP484

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

Focus: Evidentiary Hearing

Terrence T. Whitaker appeals pro se from a circuit court order denying his WIS. STAT. § 974.06 (2019-20) motion without an evidentiary hearing. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Nakyta V.T. Chentis

Case No.: 2020AP1699-CR

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

Focus: Plea Withdrawal – Sufficiency of Evidence

Nakyta V.T. Chentis appeals from a judgment of conviction for possession of a narcotic drug and an order denying his postconviction motion seeking plea withdrawal. He argues that because the State could prove he possessed only a trace amount of heroin, his conviction is prohibited under Kabat v. State, 76 Wis. 2d 224, 251 N.W.2d 38 (1977), based on lack of knowledge that the substance he possessed was a narcotic drug. Accordingly, he argues there was an insufficient factual basis for his no-contest plea.

We agree with the circuit court that there was a sufficient factual basis for Chentis’s plea. Unlike in Kabat, here there was compelling circumstantial evidence of recent drug use, which supported the requisite inference that Chentis knew he possessed a narcotic drug. Accordingly, we affirm.

Recommended for Publication

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WI Court of Appeals – District IV

Case Name: Ryan Sey, et al., v. National General Insurance Company

Case No.: 2020AP1676

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

Focus: Abuse of Discretion – Worker’s Compensation Settlement

Ryan Sey appeals the circuit court’s order approving a settlement agreement pursuant to WIS. STAT. § 102.29 (2019-20), a statute that addresses third-party liability in the worker’s compensation context. The settlement agreement disposed of Sey’s claims arising out of a motor vehicle accident. Sey contends that the circuit court erroneously exercised its discretion in approving the settlement. We disagree and affirm.

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WI Court of Appeals – District IV

Case Name: Antonio Soria v. Classic Custom Homes of Waunakee Inc.,

Case No.: 2020AP1931

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

Focus: Breach of Contract – Theft-by-contractor

In 2013, Antonio Soria sued Classic Custom Homes of Waunakee, Inc., (“Custom Homes”) for breach of contract and theft by contractor. After a jury found in favor of Soria on those claims, both Custom Homes and Soria appealed to this court. In an unpublished opinion, we decided six separate issues. Soria v. Classic Custom Homes of Waunakee, Inc., No. 2017AP1693, unpublished slip op. (WI App July 11, 2019) (“Soria I”). On two of those issues, this court reversed rulings of the circuit court and remanded this case with instructions to: (1) dismiss Soria’s theft by contractor claims with prejudice and vacate the portions of the judgment relating to the theft by contractor claims; and (2) determine the amount of prejudgment interest that Custom Homes owed to Soria on the breach of contract cause of action. Id., ¶¶56, 74, 78.

After remand, and pertinent to this appeal, Soria filed motions requesting that the circuit court amend its prior judgment to conclude that Custom Homes committed embezzlement, and award exemplary damages for such purported embezzlement, even though Soria never raised the issue of embezzlement in the first set of proceedings in the circuit court or in the prior appeal. In response, Custom Homes filed a motion in the circuit court requesting sanctions against Soria and his attorney based on those allegedly frivolous motions. The circuit court denied both parties’ motions, and both parties now appeal those rulings.

For the reasons we discuss in this opinion, we affirm the circuit court’s denial of Soria’s motions. Regarding Custom Homes’ cross-appeal, we reverse the ruling of the circuit court and conclude that Soria’s motions filed in the circuit court were frivolous pursuant to WIS. STAT. § 802.05(2)(b) (2019-20).  Accordingly, we remand this case to the circuit court to determine the appropriate sanction or sanctions to assess against Soria’s attorney.

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WI Court of Appeals – District IV

Case Name: J.T. v. Wisconsin Department of Health Services

Case No.: 2020AP2085

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

Focus: ALJ Review – Abuse of Discretion

Before September 2019, J.T. received behavioral health services from a therapy provider for J.T.’s disorder on the autism spectrum. Through his guardian, J.T. appeals a circuit court order that affirmed a decision of the Wisconsin Department of Health Services (the Department) following a contested case hearing. The challenged agency decision is the Department’s denial of a request by the therapy provider for an extension of Medicaid funding to cover therapy beyond August 31, 2019. The Department based its denial on the determination that the provider had not produced sufficient information in response to demands by the Department regarding specific types of progress that J.T. has made as a result of therapy by the provider and skills-instruction by his parents. We affirm for the following reasons.

First, J.T. contends that the circuit court should have reversed the challenged Department decision based on WIS. STAT. § 227.57(8) (“The court shall reverse … if it finds that the agency’s exercise of discretion … is inconsistent with … an officially stated agency policy …, if deviation therefrom is not explained to the satisfaction of the court by the agency.”). J.T. argues that the Department’s demands for information supporting the provider’s request for continued authorization, and its ultimate denial based on a lack of information, require reversal because the demands and denial were inconsistent with an officially stated policy of the Department, and because the Department fails to provide a satisfactory explanation for this alleged deviation. We assume without deciding that the Department’s challenged conduct deviated from an officially stated policy of the Department. With that assumption, we reject J.T.’s argument that the Department has not provided a satisfactory explanation for the assumed deviation.

Second, J.T. contends that the Department’s denial decision was not based on substantial evidence. We conclude that, taking into account all relevant evidence in the record, reasonable minds could come to the same conclusion as the Department and, therefore, substantial evidence supports its denial decision.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Billie Johnson, et al., v. Wisconsin Elections Commission, et al.,

Case No.: 2021 WI 87

Focus: Redistricting – Remedial Maps

The Wisconsin Constitution requires the legislature “to apportion and district anew the members of the senate and assembly, according to the number of inhabitants” after each census conducted under the United States Constitution every ten years. Wis. Const. art. IV, § 3. In fulfilling this responsibility, the legislature draws maps reflecting the legislative districts across the state. Every census invariably reveals population changes within legislative districts, and the legislature must thereafter satisfy the constitutional requirement that each district contain approximately equal numbers of people by developing new maps, which are subject to veto by the governor. When this occurs, courts are often asked to step in and draw the maps.

This year, the legislature drew maps, the governor vetoed them, and all parties agree the existing maps, enacted into law in 2011, are now unconstitutional because shifts in Wisconsin’s population around the state have disturbed the constitutionally guaranteed equality of the people’s representation in the state legislature and in the United States House of Representatives. We have been asked to provide a remedy for that inequality. Some parties to this action further complain that the 2011 maps reflect a partisan gerrymander favoring Republican Party candidates at the expense of Democrat Party candidates and ask us to redraw the maps to allocate districts equally between these dominant parties, although no one asks us to assign districts to any minor parties in proportion to their share of Wisconsin’s electoral vote.

The United States Supreme Court recently declared there are no legal standards by which judges may decide whether maps are politically “fair.” Rucho v. Common Cause, 139 S. Ct. 2484, 2499-500 (2019). We agree. The Wisconsin Constitution requires the legislature——a political body——to establish the legislative districts in this state. Just as the laws enacted by the legislature reflect policy choices, so will the maps drawn by that political body. Nothing in the constitution empowers this court to second-guess those policy choices, and nothing in the constitution vests this court with the power of the legislature to enact new maps. Our role in redistricting remains a purely judicial one, which limits us to declaring what the law is and affording the parties a remedy for its violation.

In this case, the maps drawn in 2011 were enacted by the legislature and signed into law by the governor. Their lawfulness was challenged in a federal court, which upheld them (subject to a slight adjustment to Assembly Districts 8 and 9 in order to comply with federal law). Baldus v. Members of Wis. Gov’t Accountability Bd., 862 F. Supp. 2d 860, 863 (E.D. Wis. 2012). In 2021, those maps no longer comply with the constitutional requirement of an equal number of citizens in each legislative district, due to shifts in population across the state. This court will remedy that malapportionment, while ensuring the maps satisfy all other constitutional and statutory requirements. Claims of political unfairness in the maps present political questions, not legal ones. Such claims have no basis in the constitution or any other law and therefore must be resolved through the political process and not by the judiciary.

Rights declared

Concur: HAGEDORN, J., filed a concurring opinion.

Dissent: DALLET, J., filed a dissenting opinion in which ANN WALSH BRADLEY and KAROFSKY, JJ., joined
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