Sanders v. Vishny
| Decision Date | 28 September 2021 |
| Docket Number | Case No. 21-C-0473 |
| Citation | 563 F.Supp.3d 938 |
| Parties | Derrick SANDERS, Plaintiff, v. Deja VISHNY and Wisconsin State Public Defender's Office, Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Blake Stubbs, Brian H. Eldridge, Hart McLaughlin & Eldridge LLC, John S. Marrese, Seyfarth Shaw LLP, Chicago, IL, for Plaintiff.
Jennifer Renee Remington, Wisconsin Department of Justice Office of the Attorney General, Madison, WI, for Defendants.
DECISION AND ORDER
In 1996, plaintiff Derrick Sanders pleaded no contest to a charge of first-degree intentional homicide as party to the crime and was sentenced to life imprisonment. At the time, he was represented by Deja Vishny, a staff attorney in the Wisconsin public defender's office. In 2017, Sanders filed a postconviction motion to withdraw his no-contest plea, which a state court granted. Later, a Wisconsin claims board found by clear and convincing evidence that Sanders was innocent of the crime. Sanders now brings this action under the diversity jurisdiction for legal malpractice against Vishny and the public defender's office, alleging that Vishny was negligent in advising him to plead no contest. Before me now is the defendants’ motion to dismiss the complaint.
According to the allegations of the complaint, which I accept as true for purposes of the motion to dismiss, in the early 1990s, the State of Wisconsin charged three men—Anthony Boddie, John Peavy, and Sanders—with the murder of Jason Bowie as party to the crime. Sanders had been with Bowie, Boddie, and Peavy on the night Bowie was killed and had participated in an altercation between Boddie and Bowie. When Sanders left the other men, Bowie was still alive. Later that evening, Boddie took Bowie to a different location and shot him to death. Sanders did not know that Boddie intended to kill Bowie and did not participate in the planning or execution of the murder. However, Boddie told the police that Sanders had committed the murder.
On September 7, 1993, Sanders pleaded no contest to first-degree intentional homicide. At the time, Sanders was not represented by defendant Vishny; he was represented by a different public defender who advised him that he would likely receive a sentence under which he could be paroled within 8 to 13 years. But in October of that year, the court sentenced Sanders to life imprisonment without the possibility of parole until January 1, 2015. Sanders immediately sought postconviction relief, arguing that he did not understand the potential punishment for the charge. In December 1995, the Wisconsin Court of Appeals found that Sanders’ plea was not entered knowingly and intelligently. The court vacated his conviction and remanded the case for further proceedings.
On remand, defendant Vishny, a staff attorney in the Wisconsin public defender's office,1 was appointed to represent Sanders. Vishny advised Sanders to again plead no contest, to enter a plea agreement with the prosecutor for the same sentence, and to forego his right to present exculpatory evidence, including evidence that Boddie had recently recanted his accusations against Sanders and admitted to being the real killer. Based on Vishny's advice, on April 22, 1996, Sanders again pleaded no contest. The court again imposed a sentence of life imprisonment with no possibility of parole until January 1, 2015.
More than 20 years later, while he was still in prison, Sanders filed a pro se postconviction motion to withdraw his no contest plea. In August 2018, the Circuit Court for Milwaukee County granted the motion, finding that Vishny had rendered deficient performance in advising Sanders to plead no contest. In September 2018, Sanders was released from prison after having served a term of more than 22 years. On February 12, 2020, the State of Wisconsin Claims Board unanimously found, by clear and convincing evidence, that Sanders was innocent of the charge.
Sanders, who is now domiciled in Texas, brings this action for legal malpractice under the diversity jurisdiction against Vishny, who is domiciled in Wisconsin, and the public defender's office. The defendants have filed a motion to dismiss the complaint. They contend that the claim for legal malpractice against Vishny must be dismissed because Vishny was acting as a state employee during her representation of Sanders and Sanders did not strictly comply with Wisconsin's notice-of-claim statute, Wis. Stat. § 893.82, before he commenced this suit. Specifically, the defendants contend that, although Sanders attempted to comply with the statute, he did not strictly comply because, as alleged in the complaint (¶ 34), he served the notice on the Milwaukee City Clerk and Milwaukee County Clerk rather than on the Wisconsin Attorney General as required by Wis. Stat. § 893.82(5). The defendants further contend that the claims against the public defender's office must be dismissed because, as an agency of the State of Wisconsin, it is immune from a suit for damages. In his response to the motion to dismiss, Sanders concedes that his claim against the public defender's office must be dismissed. Br. in Opp. at 14 n.2. However, he contends that his claim against Vishny may proceed because a claim against a public defender is not subject to the notice-of-claim statute and that, even if it is, he substantially complied with the statute's requirements.
The Wisconsin Supreme Court has described the notice-of-claim statute, Wis. Stat. § 893.82 as both "jurisdictional" and "a condition precedent to the right to maintain an action." Ibrahim v. Samore , 118 Wis. 2d 720, 726, 348 N.W.2d 554 (1984). However, because the statute does not define the limits of federal subject-matter jurisdiction, I do not treat the defendants’ motion to dismiss as one under Federal Rule of Civil Procedure 12(b)(1). Instead, because "[a] complaint that fails to show compliance with § 893.82 fails to state a claim upon which relief can be granted," Weinberger v. State of Wis. , 105 F.3d 1182, 1188 (7th Cir.1997), I construe the motion as being brought under Federal Rule of Civil Procedure 12(b)(6). Under Rule 12(b)(6), the issue is whether the complaint adequately pleads compliance with the notice-of-claim statute.2
Id. § 893.82(3). Finally, the statute provides that the required notice "shall be sworn to by the claimant and shall be served upon the attorney general at his or her office in the capitol or at the department of justice by personal service or by certified mail." Id. § 893.82(5). As stated in the statute, the purposes of requiring a claimant to give notice of a claim are: (1) to "[p]rovide the attorney general with adequate time to investigate claims which might result in judgments to be paid by the state"; and (2) to "[p]rovide the attorney general with an opportunity to effect a compromise without a civil action or civil proceeding." Id. § 893.82(1)(a)–(b).
In the present case, the plaintiff's complaint pleads that he "served a notice of claim upon the Milwaukee County Clerk and the Milwaukee City Clerk." Compl. ¶ 34. The plaintiff admits in his brief that he did not serve the attorney general. Br. in Opp. at 12. Thus, it is undisputed that the plaintiff did not strictly comply with the statute. However, the plaintiff contends that, for two reasons, this is not fatal to his claim: (1) the notice-of-claim statute does not apply to a claim for legal malpractice against a state public defender, and (2) even if it does, he substantially complied with the statute's requirements.
The plaintiff contends that, because a state public defender is not one of the persons identified after the word "includes," he or she is not a ...
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