Weekly Case Digests — Jan. 25-29, 2016

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US Supreme Court Digests

US Supreme Court

Case Name: Montgomery v. Louisiana

Case No.: 14-280

Practice Area: Court Authority – Retroactive Application

Supreme Court has jurisdiction to make determination whether Louisiana Supreme Court properly refused to give retroactive effect to Miller v. Alabama.

“When a new substantive rule of constitutional law controls the outcome of a case, the Constitution requires state collateral review courts to give retroactive effect to that rule. This conclusion is established by precedents addressing the nature of substantive rules, their differences from procedural rules, and their history of retroactive application. As Teague, supra, at 292, 312, and Penry, supra, at 330, indicate, substantive rules set forth categorical constitutional guarantees that place certain criminal laws and punishments altogether beyond the State’s power to impose. It follows that when a State enforces a proscription or penalty barred by the Constitution, the resulting conviction or sentence is, by definition, unlawful. In contrast, where procedural error has infected a trial, a conviction or sentence may still be accurate and the defendant’s continued confinement may still be lawful, see Schriro v. Summerlin, 542 U. S. 348, 352–353; for this reason, a trial conducted under a procedure found unconstitutional in a later case does not automatically invalidate a defendant’s conviction or sentence. The same possibility of a valid result does not exist where a substantive rule has eliminated a State’s power to proscribe the defendant’s conduct or impose a given punishment. See United States v. United States Coin & Currency, 401 U. S. 715, 724. By holding that new substantive rules are, indeed, retroactive, Teague continued a long tradition of recognizing that substantive rules must have retroactive effect regardless of when the defendant’s conviction became final; for a conviction under an unconstitutional law “is not merely erroneous, but is illegal and void, and cannot be a legal cause of imprisonment,” Ex parte Siebold, 100 U. S. 371, 376–377. The same logic governs a challenge to a punishment that the Constitution deprives States of authority to impose, Penry, supra, at 330. It follows that a court has no authority to leave in place a conviction or sentence that violates a substantive rule, regardless of whether the conviction or sentence became final before the rule was announced. This Court’s precedents may not directly control the question here, but they bear on the necessary analysis, for a State that may not constitutionally insist that a prisoner remain in jail on federal habeas review may not constitutionally insist on the same result in its own postconviction proceedings. Pp. 8–14.”

Judgment Reversed and Remanded

Dissent: Justice Scalia, Justice Thomas, Justice Alito

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US Supreme Court

Case Name: Musacchio v. United States

Case No.: 14-1095

Practice Area: Sufficiency of Evidence – Jury Instruction

Challenges to sufficiency must be assessed against the elements of the crime that is charged, not an erroneous jury instruction.

“A sufficiency challenge should be assessed against the elements of the charged crime, not against the elements set forth in an erroneous jury instruction. Sufficiency review essentially addresses whether the Government’s case was strong enough to reach the jury. A reviewing court conducts a limited inquiry tailored to ensuring that a defendant receives the minimum required by due process: a “meaningful opportunity to defend” against the charge against him and a jury finding of guilt “beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 314–315. It does this by considering only the “legal” question “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id., at 319. A reviewing court’s determination thus does not rest on how the jury was instructed. The Government’s failure to introduce evidence of an additional element does not implicate these principles, and its failure to object to a heightened jury instruction does not affect sufficiency review. Because Musacchio does not dispute that he was properly charged with conspiracy to obtain unauthorized access or that the evidence was sufficient to convict him of the charged crime, the Fifth Circuit correctly rejected his sufficiency challenge. Pp. 5–8”

Affirmed

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US Supreme Court

Case Name: FERC v. Electric Power Supply

Case No.: 14-840

Practice Area: Authority to Act – Federal Agency

Federal Energy Regulatory Commission (FERC) is granted authority to regulate sale market operator’s compensation and demand response bids.

“Spurred on by Congress, FERC issued Order No. 719, which, among other things, requires wholesale market operators to receive demand response bids from aggregators of electricity consumers, except when the state regulatory authority overseeing those users’ retail purchases bars demand response participation. 18 CFR §35.28(g)(1). Concerned that the order had not gone far enough, FERC then issued the rule under review here, Order No. 745. §35.28(g)(1)(v) (Rule). It requires market operators to pay the same price to demand response providers for conserving energy as to generators for producing it, so long as a “net benefits test,” which ensures that accepted bids actually save consumers money, is met. The Rule rejected an alternative compensation scheme that would have subtracted from LMP the savings consumers receive from not buying electricity in the retail market, a formula known as LMP-G. The Rule also rejected claims that FERC lacked statutory authority to regulate the compensation operators pay for demand response bids.”

Justice Scalia and Justice Thomas Dissenting

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US Supreme Court

Case Name: Menominee Tribe of Wisconsin v. United States

Case No.: 14-510

Practice Area: Statute of Limitations – Tolling

Equitable tolling of statute of limitations does not apply to tribe’s claims against government for failure to honor obligation to pay contract support costs.

“Pursuant to the Indian Self-Determination and Education Assistance Act (ISDA), petitioner Menominee Indian Tribe of Wisconsin contracted with the Indian Health Service (IHS) to operate what would otherwise have been a federal program and to receive an amount of money equal to what the Government would have spent on operating the program itself, including reimbursement for reasonable contract support costs. 25 U. S. C. §§450f, 450j–1(a). After other tribal entities successfully litigated complaints against the Federal Government for failing to honor its obligation to pay contract support costs, the Menominee Tribe presented its own contract support claims to the IHS in accordance with the Contract Disputes Act of 1978 (CDA), which requires contractors to present each claim to a contracting officer for decision, 41 U. S. C. §7103(a)(1). The contracting officer denied some of the Tribe’s claims because they were not presented within the CDA’s 6-year limitations period. See §7103(a)(4)(A). The Tribe challenged the denials in Federal District Court, arguing that the limitations period should be tolled for the nearly two years in which a putative class action, brought by tribes with parallel complaints, was pending. As relevant here, the District Court eventually denied the Tribe’s equitable-tolling claim, and the Court of Appeals affirmed, holding that no extraordinary circumstances beyond the Tribe’s control caused the delay”

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US Supreme Court

Case Name: James v. Boise

Case No.: 15-493

Practice Area – Supremacy Clause

State court erred in concluding that state was not bound by Supreme Court interpretation.

“Section 1988 is a federal statute. “It is this Court’s responsibility to say what a [federal] statute means, and once the Court has spoken, it is the duty of other courts to respect that understanding of the governing rule of law.” Nitro-Lift Technologies, L. L. C. v. Howard, 568 U. S. ___, ___ (2012) (per curiam) (slip op., at 5) (quoting Rivers v. Roadway Express, Inc., 511 U. S. 298, 312 (1994) (internal quotation marks omitted)). And for good reason. As Justice Story explained 200 years ago, if state courts were permitted to disregard this Court’s rulings on federal law, “the laws, the treaties, and the constitution of the United States would be different in different states, and might, perhaps, never have precisely the same construction, obligation, or efficacy, in any two states. The public mischiefs that would attend such a state of things would be truly deplorable.” Martin v. Hunter’s Lessee, 1 Wheat. 304, 348 (1816).”

Reversed and Remanded

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US Supreme Court

Case Name: Amgen Inc. v. Harris

Case No.: 15-278

Practice Area: Breach of Fiduciary Duty

9^th Circuit court fails to properly evaluate complaint.

“The Court now holds that the Ninth Circuit failed to properly evaluate the complaint. That court explained that its previous opinion (that is, the one it issued before Fifth Third was decided) “had already assumed” the standards for ERISA fiduciary liability laid out by this Court in Fifth Third. 788 F. 3d, at 940. And it reasoned that the complaint at issue here satisfies those standards because when “the federal securities laws require disclosure of material information,” it is “quite plausible” that removing the Amgen Common Stock Fund “from the list of investment options” would not “caus[e] undue harm to plan participants.” Id., at 937–938. The Ninth Circuit, however, failed to assess whether the complaint in its current form “has plausibly alleged” that a prudent fiduciary in the same position “could not have concluded” that the alternative action “would do more harm than good.” Fifth Third, supra, at ___ (slip op., at 20).”

Reversed and Remanded

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WI Supreme Court Digests 

WI Supreme Court

Case Name: State of Wisconsin v. Melisa Valadez

Case No.: 2014AP678; 2014AP679; 2014AP680

Practice Area: Immigration – Motion to Withdraw

Appellant improperly denied motion to withdraw guilty plea.

“To hold that Ms. Valadez cannot withdraw her guilty pleas because the federal government has not excluded her from admission is, as a matter of practicality, unworkable and effectively expunges an enumerated consequence——exclusion from admission——from Wis. Stat. § 971.08(2).”

Concurring in Part: J. Ziegler, J. Gableman

Dissenting: J. Prosser, J. Roggensack

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7^th Circuit Digests 

7^th Circuit Court of Appeals

Case Name: Estate of Harold Stuller v. United States of America

Case No.: 15-1545

Officials: ROVNER and WILLIAMS, Circuit Judges, and SHAH, District Judge

Practice Area: Trusts and Estates – Tax Refund

Court properly denies request to refund taxes paid by entity.

“The point here is that LSA, an S corp, is a different entity than the Stullers, its shareholders. “[W]hile a taxpayer is free to organize [her] affairs as [she] chooses, nevertheless, once having done so, [she] must accept the tax consequences of her choice, whether contemplated or not, and may not enjoy the benefit of some other route [she] might have chosen to follow but did not.” Commissioner v. National Alfalfa Dehydrating & Milling Co., 417 U.S. 134, 149 (1974) (citations omitted). Denial of the Stullers’ corporate-level deduction for LSA’s losses did not change the fact that the Stullers annually received lease income from LSA, which was reported on their returns. Because denial of the corporate deduction does not change the “fundamental principle that an S corporation is a separate entity from its shareholders,” the denial of a corporate-level deduction for an S corp’s shareholder does not entitle the taxpayer to remove rental income from an individual tax return. Catalano, 240 F.3d at 843–44. Similarly, the Stullers cannot now “look through the forms they chose themselves in order to improve their tax treatment with the benefit of hindsight.” United States v. Fletcher, 562 F.3d 839, 842 (7th Cir. 2009).”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Ratina Bagwe v. Sedgwick Claims Management Services, Inc., et al.,

Case No.: 14-3201

Officials: FLAUM, RIPPLE, and SYKES, Circuit Judges

Practice Area: Title VII

Appellant fails to prove up allegations of retaliatory termination and discrimination.

“Finally, Ms. Bagwe claims that she was terminated for retaliatory reasons.64 A termination is undoubtedly an adverse employment action. Oest, 240 F.3d at 613. However, Ms. Bagwe has not linked her termination to her complaints of discrimination, or established that the reasons given by Sedgwick are pretextual. Rather, Sedgwick’s rationale for terminating Ms. Bagwe has been consistent and finds support in the record. The PIP laid out in detail the company’s concerns with Ms. Bagwe’s leadership skills. The investigation showed that Sedgwick took Ms. Bagwe’s complaints of discrimination seriously and that its willingness to investigate her claims cannot be characterized as a punitive action. The termination came after numerous complaints from coworkers and Ms. Bagwe’s placement on a PIP. See Langenbach, 761 F.3d at 800 (affirming summary judgment where the timing and pretext arguments relied on “unbridled speculation,” and the record presented a clear history of performance issues). Ms. Bagwe therefore has not met her burden with regard to her claims of retaliation”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Window World of Chicagoland, LLC et al v. Window World, Inc., et al

Case No.: 15-2224

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

Practice Area: Trademark Litigation – Consolidation

Multiple cases properly denied consolidation

“The difference between administrative and full consolidation is established by Fed. R. Civ. P. 42(a). Subsection (a)(2) provides for full consolidation, while subsections (a)(1) and (a)(3) authorize other forms of consolidation. Suits 2 and 3 have been joined for hearings, see Rule 42(a)(1), rather than fully consolidated under Rule 42(a)(2). Suits administratively consolidated for hearings retain their independent existence. See Gelboim v. Bank of America Corp., 135 S. Ct. 897 (2015) (same result for cases consolidated under 28 U.S.C. §1407 for pretrial proceedings). So Judge Blakey was right, for the right reason. (Hampton concedes that, if Suit 2 remains separate from Suit 3, his current claims are barred.)”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Hedeen International, LLC v. Zing Toys, Inc.

Case No.: 15-1749

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

Practice Area: Process of Service – Personal Jurisdiction

Defense of lack of personal jurisdiction not waived by failure to file motion within 21 days after being served.

“Litigators should be able to rely on the plain language of the Rules in conducting litigation in federal court. Under a straightforward reading of Rule 12, a challenge to personal jurisdiction may be asserted either in a responsive pleading filed within 21 days, or in a motion with no similar time limit specified. That does not mean the time for filing such a motion is unbounded or that the plaintiff was without recourse. Failure to file a motion or responsive pleading in 21 days may result in the issuance of a default judgment against the defendant. Moreover, a personal jurisdiction defense may be waived if a defendant gives a plaintiff a reasonable expectation that he will defend the suit on the merits or where he causes the court to go to some effort that would be wasted if personal jurisdiction is subsequently found lacking. H-D Michigan, LLC v. Hellenic Duty Free Shops S.A., 694 F.3d 827, 848 (7th Cir. 2012); Mobile Anesthesiologists Chicago, LLC v. Anesthesia Associates of Houston Metroplex, P.A., 623 F.3d 440, 443 (7th Cir. 2010). But Hedeen has declined to argue that the delay in filing the motion met those standards, relying solely on the argument that it was untimely because filed more than 21 days after service of the complaint. We agree with the district court that the defense was not waived by the failure to file the motion within 21 days.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Ambrose Clayton

Case No.: 15-2553

Officials: RIPPLE, WILLIAMS, and HAMILTON, Circuit Judges.

Practice Area: Pleas & Sentencing – Reduction of Sentence

Court did not commit reversible error in failing to reduce appellant sentence.

“The court committed no reversible error in step one. At the original sentencing, the parties and the court correctly anticipated that the proposed guideline would reduce Clay‐ ton’s base offense level by two, with a new low end of 108 months. While the district court did not itself state the new range when Clayton moved for a sentencing reduction, it acknowledged, as step one contemplates, that the amendment reduced Clayton’s offense level and that he was eligible for a reduction in sentence. The purpose of step one was anticipated and then achieved. Further, at the original sentencing hearing, the district court explained that it would not reduce Clayton’s sentence any further based on the anticipated new guideline. Any error in not stating the new range explicitly after the amendment actually took effect would have been harmless. See United States v. Hill, 645 F.3d 900, 912 (7th Cir. 2011).”

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Terry Smith

Case No.: 14-3744; 14-3721

Officials: POSNER and WILLIAMS, Circuit Judges, and PALLMEYER, District Judge

Practice Area: General Appeal – Court Error

Judge errs by failing to state standard conditions of supervised release at sentencing.

“The judge devoted the bulk of his sentencing statement to recounting cases in which defendants had been sentenced for crimes comparable to Smith’s. In one case, United States v. DiSantis, 565 F.3d 354 (7th Cir. 2009), a police officer had struck a bystander who was filming a traffic stop by the officer, hitting the man on the head and face with the man’s camera, then throwing the camera on the ground and stomping on it, and finally patting the man down and—for good measure, as it were—squeezing his genitals. For this brutal and bizarre behavior, the officer was sentenced to 66 months in prison. It’s not obvious to us that his behavior was more brutal than that visited by Smith on his victims, particularly when we note that Smith had assaulted two persons in separate incidents and had a history of violence; no such history is mentioned in Judge Lawrence’s discussion of the camera case.”

Conviction Affirmed.

Sentence vacated and remanded for resentencing

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7^th Circuit Court of Appeals

Case Name: Charles Donelson v. Randy Pfister

Case No.: 14-3395

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

Practice Area: Violation of Right to Due Process

Court disallowing appellant to call witness of have access to exculpatory recording followed by ruling against appellant on merits violated his right to due process.

“Donelson told the adjustment committee that the named witnesses would testify that he complied with rather than opposed Watson’s orders, that the surveillance videos would confirm he had permission to leave the wing during the first incident and that two guards kept him from fleeing Watson’s assault during the second incident, and that the telephone recording would show that he called for help during Watson’s assault. This evidence, if Donelson has described it accurately, would undermine the committee’s decision. We could not conclude that any error in excluding the evidence was harmless. Compare Pannell v. McBride, 306 F.3d 499, 503 (7th Cir. 2002) (remanding for evidentiary hearing when testimony “might have buttressed a potentially valid defense”), and Piggie v. Cotton, 344 F.3d 674, 679 (7th Cir. 2003) (remanding for evidentiary hearing when record did not “demonstrate with any degree of certainty that” requested evidence “lacked exculpatory value or was otherwise irrelevant”), with Jones, 637 F.3d at 846–47 (affirming denial of § 2254 petition because proffered testimony would not have changed disciplinary committee’s guilty finding), and Piggie, 344 F.3d at 678 (rejecting argument that denial of requested witnesses violated due process since inmate failed to explain how testimony would have aided his defense).”

Vacated and Remanded

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7^th Circuit Court of Appeals

Case Name: Michael Belleau v. Edward Wall

Case No.: 15-3225

Officials: BAUER, POSNER, and FLAUM, Circuit Judges.

Practice Area: 4^th Amendment violation – Constitutionality

Electronic monitoring of repetitive sex offender does not violate 4^th amendment.

“Having to wear the monitor is a bother, an inconvenience, an annoyance, but no more is punishment than being stopped by a police officer on the highway and asked to show your driver’s license is punishment, or being placed on a sex offender registry, held by the Supreme Court in Smith v. Doe, supra, and by our court in Mueller v. Raemisch, supra, 740 F.3d at 1133, not to be punishment. But while citing Smith v. Doe the district judge in this case did not properly apply that decision, but instead embraced the hyperbolic statement in Riley v. New Jersey State Parole Bd., 98 A.3d 544, 559 (N.J. 2014), that “the tracking device attached to Riley’s ankle identifies Riley as a sex offender no less clearly than if he wore a scarlet letter.” No, the aim of requiring a person who has psychiatric compulsion to abuse children sexually to wear a GPS monitor is not to shame him, but to discourage him from yielding to his sexual compulsion, by increasing the likelihood that if he does he’ll be arrested because the Department of Corrections will have incontestable evidence that he was at the place where and at the time when a sexual offense was reported to have occurred.”

Reversed

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7^th Circuit Court of Appeals

Case Name: Stark Excavating, Inc. v. Thomas Perez

Case No.: 14-3809

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

Practice Area: OSHA – Willful Violations

Petition to review denied where company said to not have effective enforcement of safety policy.

“The utilization of written tickets as opposed to verbal warnings would facilitate effective enforcement of the safety rules by allowing the tracking of violations by particular employees especially when working for different foremen. That policy, however, was routinely disregarded. Between August 2006—when the policy was first implemented—and the 2008 inspection at issue here, only 33 tickets had been issued. Of those, six were issued by Stark’s area manager in Champaign in September 2006 and the rest were issued by Stark’s safety director Clayton. No other supervisorissued any written tickets between September 2006 and the violation in this case, and Schupp and Ron Martin, a Stark superintendent, testified that they never issued any safety tickets and preferred to verbally correct employees. As to Clayton, testimony also indicated that the supervisors communicated by radio with each other to provide advance warning when Clayton was in the area conducting safety audits. In light of that evidence, the ALJ concluded that Stark failed to demonstrate that it effectively enforced its own rules and policies for safety violations. The Commission affirmed the ALJ’s determination that Stark failed to demonstrate effective enforcement, and we agree. Accordingly, Stark failed to demonstrate that it had a safety policy that was effectively enforced during that time, and its argument fails for that reason as well.”

Petition For Review Denied

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WI COURT OF APPEALS

WI Court of Appeals – District I

Case Name: Kimberly C. Hying v. Martin B. Hying

Case No.: 2014AP1780

Officials: Curley, P.J., Kessler and Brennan, JJ.

Practice Areas: Divorce

WI Court of Appeals – District III

Case Name: Harry A. Joles, JR. v. Anthony M. Sciascia and Penny D. Sciascia

Case No.: 2015AP125

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

Practice Areas: Easements

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Devonte M. Williams

Case No.: 2015AP138-CR

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

Practice Areas: Ineffective Assistance of Counsel

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Guadalupe Ronzon

Case No.: 20165AP498-CR

Officials: BRASH, J.

Practice Areas: Sufficiency of Evidence – Abuse of Discretion

WI Court of Appeals – District III

Case Name: State of Wisconsin v. David J. Reidinger

Case No.: 2015AP902

Officials: HRUZ, J.

Practice Areas: Disorderly Conduct

David Reidinger was found to have violated WIS. ADMIN. CODE § UWS 18.11(2), which prohibits disorderly conduct in University of Wisconsin System buildings or on university lands. The evidence at trial established that others witnessed Reidinger viewing pornography in a public library on the University of Wisconsin-Eau Claire (UWEC) campus. On appeal, Reidinger argues he has a First Amendment right to view legal adult pornographic material at a public library.3Reidinger also vaguely alludes to a conspiracy between numerous public officers and employees to harass him. We reject these arguments and affirm.

WI Court of Appeals – District I

Case Name: Milwaukee City v. Melvin Shelton

Case No.: 2015AP937

Officials: BRENNAN, J.

Practice Areas: Motion to Reopen

WI Court of Appeals – District I

Case Name: City of Milwaukee v. Jerry D. Butler

Case No.: 2015AP1537

Officials: CURLEY, P.J.

Practice Areas: General Appeal

WI Court of Appeals – District I

Case Name: City of West Allis v. Teresa A. Michals

Case No.: 2015AP1688; 2015AP1689

Officials: BRASH, J.

Practice Areas: Motion to Suppress

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Jose L. Cabrera-Garcia

Case No.: 2014AP2189-CR

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

Practice Areas: Motion to Suppress – Court Error

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Richard W. Novak

Case No.: 2015AP942-CR

Officials: Neubauer, C.J., Reilly, P.J., and Hagedorn, J.

Practice Areas: Ineffective Assistance of Counsel

Richard W. Novak appeals from a judgment of conviction for possession with intent to deliver in excess of forty grams of cocaine and an order denying his motion for postconviction relief vacating the conviction on the basis that trial counsel rendered constitutionally ineffective assistance by failing to attack the warrant authorizing a search of Novak’s residence as unsupported by probable cause. We conclude that the warrant was supported by probable cause and, consequently, on this basis Novak was not deprived of the effective assistance of counsel. Thus, we affirm the judgment and order.

WI Court of Appeals – District II

Case Name: Karen J. Wilks v. Mary Pangman Schmitt

Case No.: 2015AP1228

Officials: Neubauer, C.J., Gundrum and Hagedorn, JJ.

Practice Areas: Court Error – Res Judicata

Karen J. Wilks, pro se, appeals an order denying her motion for relief from a judgment. She contends the circuit court erred when it dismissed the underlying action on the basis of res judicata because that conclusion rested on the mistaken belief that a prior small claims case had been dismissed with prejudice. We reject her arguments and affirm.

WI Court of Appeals – District IV

Case Name: Great-West Life & Annuity Insurance Co., et. al. v. Wisconsin Department of Revenue

Case No.: 2013AP2605; 2013AP2765

Officials: Kloppenburg, P.J., Lundsten and Higginbotham, JJ.

Practice Areas: Tax Assessment

Donald Bottolfson won the Wisconsin “Megabucks” lottery (the “prize money”) in 1994. The primary issue in this case is whether the Wisconsin Tax Appeals Commission properly denied the request of Great-West Life & Annuity Insurance Co. to refund money withheld by the Wisconsin Department of Revenue (DOR) from prize money payments made to a trust, the Bottolfson 1997 Trust, which was created to receive the prize payments.  DOR withheld the money because of back taxes owed by Bottolfson, who at the time the money was withheld, was a beneficiary of the Trust. For reasons that will become clearer below, to resolve this issue requires us to determine whether Bottolfson’s sale to Great-West of the income stream Bottolfson would have received from the Trust constitutes an assignment in violation of WIS. STAT. § 565.30(6) (1997-98). 2 If we conclude that the sale of the income stream violates sub. (6), we must determine whether DOR is equitably estopped from objecting to the assignment. For the reasons that follow, we conclude that Bottolfson’s sale of the income stream constitutes an assignment of the right to a lottery prize in violation of WIS. STAT. § 565.30(6), and, turning to Great West’s alternative argument, further conclude that DOR is not equitably estopped from objecting to the assignment. Accordingly, we reverse the circuit court and affirm the commission

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. James E. McCAnn

Case No.: 2014AP2180-CR

Officials: Lundsten, Sherman and Blanchard, JJ.

Practice Areas: Ineffective Assistance of Counsel

James E. McCann appeals a judgment of conviction after a jury found him guilty of one count of first-degree child sexual assault (sexual contact with a child younger than 13) and one count of repeated sexual assault of the same child (at least three acts of first-degree sexual assault). See WIS. STAT. §§ 948.02(1)(e) and 948.025(1)(d) (2009-10). In a postconviction motion for a new trial, McCann argued that his trial attorney was ineffective for not objecting to the verdict form and the jury instructions. The circuit court denied McCann’s motion in an order that McCann also appeals. We affirm.

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Jeanette M. Janusiak

Case No.: 2015AP160-CR

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

Practice Areas: Motion to Suppress

Jeanette Janusiak appeals a judgment of conviction for first-degree intentional homicide. Janusiak argues that the circuit court should have suppressed in-custody statements Janusiak made to police because the statements were involuntary and, as a result, the court should not have allowed the State to use the statements against Janusiak at trial. For the following reasons, we affirm.

WI Court of Appeals – District III

Case Name: Adoptions of Wisconsin, Inc. v. J.S.

Case No.: 2015AP1403

Officials: STARK, P.J.

Practice Areas: Termination of Parental Rights

J.S. appeals an order terminating his parental rights to R.C. and an order denying his postdisposition motion. J.S. argues the circuit court erroneously exercised its discretion by denying his postdisposition motion to reopen a default judgment entered based upon his failure to appear at the termination of parental rights (TPR) hearing in response to a summons. We disagree and affirm the orders.

<p align=”center”><b>US Supreme Court Digests</b></p><p align=”center”></p><b>US Supreme Court</b>
<b>Case Name: Montgomery v. Louisiana</b>
<b>Case No.: 14-280</b>
<b>Practice Area: Court Authority – Retroactive Application</b>

Supreme Court has jurisdiction to make determination whether Louisiana Supreme Court properly refused to give retroactive effect to <i>Miller v. Alabama. </i>

“When a new substantive rule of constitutional law controls the outcome of a case, the Constitution requires state collateral review courts to give retroactive effect to that rule. This conclusion is established by precedents addressing the nature of substantive rules, their differences from procedural rules, and their history of retroactive application. As Teague, supra, at 292, 312, and Penry, supra, at 330, indicate, substantive rules set forth categorical constitutional guarantees that place certain criminal laws and punishments altogether beyond the State’s power to impose. It follows that when a State enforces a proscription or penalty barred by the Constitution, the resulting conviction or sentence is, by definition, unlawful. In contrast, where procedural error has infected a trial, a conviction or sentence may still be accurate and the defendant’s continued confinement may still be lawful, see Schriro v. Summerlin, 542 U. S. 348, 352–353; for this reason, a trial conducted under a procedure found unconstitutional in a later case does not automatically invalidate a defendant’s conviction or sentence. The same possibility of a valid result does not exist where a substantive rule has eliminated a State’s power to proscribe the defendant’s conduct or impose a given punishment. See United States v. United States Coin &amp; Currency, 401 U. S. 715, 724. By holding that new substantive rules are, indeed, retroactive, Teague continued a long tradition of recognizing that substantive rules must have retroactive effect regardless of when the defendant’s conviction became final; for a conviction under an unconstitutional law “is not merely erroneous, but is illegal and void, and cannot be a legal cause of imprisonment,” Ex parte Siebold, 100 U. S. 371, 376–377. The same logic governs a challenge to a punishment that the Constitution deprives States of authority to impose, Penry, supra, at 330. It follows that a court has no authority to leave in place a conviction or sentence that violates a substantive rule, regardless of whether the conviction or sentence became final before the rule was announced. This Court’s precedents may not directly control the question here, but they bear on the necessary analysis, for a State that may not constitutionally insist that a prisoner remain in jail on federal habeas review may not constitutionally insist on the same result in its own postconviction proceedings. Pp. 8–14.”

Judgment Reversed and Remanded
Dissent: Justice Scalia, Justice Thomas, Justice Alito
<a href=”http://www.supremecourt.gov/opinions/15pdf/14-280_3204.pdf”>Full Text</a><div>

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<b>US Supreme Court</b>
<b>Case Name: Musacchio v. United States</b>
<b>Case No.: 14-1095</b>
<b>Practice Area: Sufficiency of Evidence – Jury Instruction </b>

Challenges to sufficiency must be assessed against the elements of the crime that is charged, not an erroneous jury instruction.

“A sufficiency challenge should be assessed against the elements of the charged crime, not against the elements set forth in an erroneous jury instruction. Sufficiency review essentially addresses whether the Government’s case was strong enough to reach the jury. A reviewing court conducts a limited inquiry tailored to ensuring that a defendant receives the minimum required by due process: a “meaningful opportunity to defend” against the charge against him and a jury finding of guilt “beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 314–315. It does this by considering only the “legal” question “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id., at 319. A reviewing court’s determination thus does not rest on how the jury was instructed. The Government’s failure to introduce evidence of an additional element does not implicate these principles, and its failure to object to a heightened jury instruction does not affect sufficiency review. Because Musacchio does not dispute that he was properly charged with conspiracy to obtain unauthorized access or that the evidence was sufficient to convict him of the charged crime, the Fifth Circuit correctly rejected his sufficiency challenge. Pp. 5–8”

Affirmed
<a href=”http://www.supremecourt.gov/opinions/15pdf/14-1095_2d8f.pdf”>Full Text</a><div>

</div>

<b>US Supreme Court </b>
<b>Case Name: FERC v. Electric Power Supply</b>
<b>Case No.: 14-840</b>
<b>Practice Area: Authority to Act – Federal Agency</b>

Federal Energy Regulatory Commission (FERC) is granted authority to regulate sale market operator’s compensation and demand response bids.

“Spurred on by Congress, FERC issued Order No. 719, which, among other things, requires wholesale market operators to receive demand response bids from aggregators of electricity consumers, except when the state regulatory authority overseeing those users’ retail purchases bars demand response participation. 18 CFR §35.28(g)(1). Concerned that the order had not gone far enough, FERC then issued the rule under review here, Order No. 745. §35.28(g)(1)(v) (Rule). It requires market operators to pay the same price to demand response providers for conserving energy as to generators for producing it, so long as a “net benefits test,” which ensures that accepted bids actually save consumers money, is met. The Rule rejected an alternative compensation scheme that would have subtracted from LMP the savings consumers receive from not buying electricity in the retail market, a formula known as LMP-G. The Rule also rejected claims that FERC lacked statutory authority to regulate the compensation operators pay for demand response bids.”

Justice Scalia and Justice Thomas Dissenting
<a href=”http://www.supremecourt.gov/opinions/15pdf/14-840_k537.pdf”>Full Text</a><div>

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<b>US Supreme Court</b>
<b>Case Name: Menominee Tribe of Wisconsin v. United States</b>
<b>Case No.: 14-510</b>
<b>Practice Area: Statute of Limitations – Tolling</b>

Equitable tolling of statute of limitations does not apply to tribe’s claims against government for failure to honor obligation to pay contract support costs.

“Pursuant to the Indian Self-Determination and Education Assistance Act (ISDA), petitioner Menominee Indian Tribe of Wisconsin contracted with the Indian Health Service (IHS) to operate what would otherwise have been a federal program and to receive an amount of money equal to what the Government would have spent on operating the program itself, including reimbursement for reasonable contract support costs. 25 U. S. C. §§450f, 450j–1(a). After other tribal entities successfully litigated complaints against the Federal Government for failing to honor its obligation to pay contract support costs, the Menominee Tribe presented its own contract support claims to the IHS in accordance with the Contract Disputes Act of 1978 (CDA), which requires contractors to present each claim to a contracting officer for decision, 41 U. S. C. §7103(a)(1). The contracting officer denied some of the Tribe’s claims because they were not presented within the CDA’s 6-year limitations period. See §7103(a)(4)(A). The Tribe challenged the denials in Federal District Court, arguing that the limitations period should be tolled for the nearly two years in which a putative class action, brought by tribes with parallel complaints, was pending. As relevant here, the District Court eventually denied the Tribe’s equitable-tolling claim, and the Court of Appeals affirmed, holding that no extraordinary circumstances beyond the Tribe’s control caused the delay”

<a href=”http://www.supremecourt.gov/opinions/15pdf/14-510_pm02.pdf”>Full Text</a><div>

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<b>US Supreme Court</b>
<b>Case Name: James v. Boise</b>
<b>Case No.: 15-493</b>
<b>Practice Area – Supremacy Clause</b>

State court erred in concluding that state was not bound by Supreme Court interpretation.

“Section 1988 is a federal statute. “It is this Court’s responsibility to say what a [federal] statute means, and once the Court has spoken, it is the duty of other courts to respect that understanding of the governing rule of law.” Nitro-Lift Technologies, L. L. C. v. Howard, 568 U. S. ___, ___ (2012) (per curiam) (slip op., at 5) (quoting Rivers v. Roadway Express, Inc., 511 U. S. 298, 312 (1994) (internal quotation marks omitted)). And for good reason. As Justice Story explained 200 years ago, if state courts were permitted to disregard this Court’s rulings on federal law, “the laws, the treaties, and the constitution of the United States would be different in different states, and might, perhaps, never have precisely the same construction, obligation, or efficacy, in any two states. The public mischiefs that would attend such a state of things would be truly deplorable.” Martin v. Hunter’s Lessee, 1 Wheat. 304, 348 (1816).”

Reversed and Remanded
<a href=”http://www.supremecourt.gov/opinions/15pdf/15-493_5h26.pdf”>Full Text</a><div>

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<b>US Supreme Court</b>
<b>Case Name: Amgen Inc. v. Harris</b>
<b>Case No.: 15-278</b>
<b>Practice Area: Breach of Fiduciary Duty</b>

9^th Circuit court fails to properly evaluate complaint.

“The Court now holds that the Ninth Circuit failed to properly evaluate the complaint. That court explained that its previous opinion (that is, the one it issued before Fifth Third was decided) “had already assumed” the standards for ERISA fiduciary liability laid out by this Court in Fifth Third. 788 F. 3d, at 940. And it reasoned that the complaint at issue here satisfies those standards because when “the federal securities laws require disclosure of material information,” it is “quite plausible” that removing the Amgen Common Stock Fund “from the list of investment options” would not “caus[e] undue harm to plan participants.” Id., at 937–938. The Ninth Circuit, however, failed to assess whether the complaint in its current form “has plausibly alleged” that a prudent fiduciary in the same position “could not have concluded” that the alternative action “would do more harm than good.” Fifth Third, supra, at ___ (slip op., at 20).”

Reversed and Remanded
<a href=”file:///C:/Users/rick.benedict/AppData/Local/Microsoft/Windows/Temporary%20Internet%20Files/Content.Outlook/XISCM3HU/278_2co3.pdf”>Full Text</a><div>

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<p align=”center”><b>WI Supreme Court Digests</b></p><p align=”center”><b> </b></p><p align=”center”></p><b>WI Supreme Court</b>
<b>Case Name: State of Wisconsin v. Melisa Valadez</b>
<b>Case No.: 2014AP678; 2014AP679; 2014AP680</b>
<b>Practice Area: Immigration – Motion to Withdraw</b>

Appellant improperly denied motion to withdraw guilty plea.

“To hold that Ms. Valadez cannot withdraw her guilty pleas because the federal government has not excluded her from admission is, as a matter of practicality, unworkable and effectively expunges an enumerated consequence——exclusion from admission——from Wis. Stat. § 971.08(2).”

Concurring in Part: J. Ziegler, J. Gableman
Dissenting: J. Prosser, J. Roggensack

<a href=”http://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&amp;seqNo=160445″>Full Text</a><div>

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<p align=”center”><b>7^th Circuit Digests</b></p><p align=”center”><b> </b></p><p align=”center”></p><b>7^th Circuit Court of Appeals</b>
<b>Case Name: Estate of Harold Stuller v. United States of America</b>
<b>Case No.: 15-1545</b>
<b>Officials: ROVNER and WILLIAMS, Circuit Judges, and SHAH, District Judge</b>
<b>Practice Area: Trusts and Estates – Tax Refund</b>

Court properly denies request to refund taxes paid by entity.

“The point here is that LSA, an S corp, is a different entity than the Stullers, its shareholders. “[W]hile a taxpayer is free to organize [her] affairs as [she] chooses, nevertheless, once having done so, [she] must accept the tax consequences of her choice, whether contemplated or not, and may not enjoy the benefit of some other route [she] might have chosen to follow but did not.” Commissioner v. National Alfalfa Dehydrating &amp; Milling Co., 417 U.S. 134, 149 (1974) (citations omitted). Denial of the Stullers’ corporate-level deduction for LSA’s losses did not change the fact that the Stullers annually received lease income from LSA, which was reported on their returns. Because denial of the corporate deduction does not change the “fundamental principle that an S corporation is a separate entity from its shareholders,” the denial of a corporate-level deduction for an S corp’s shareholder does not entitle the taxpayer to remove rental income from an individual tax return. Catalano, 240 F.3d at 843–44. Similarly, the Stullers cannot now “look through the forms they chose themselves in order to improve their tax treatment with the benefit of hindsight.” United States v. Fletcher, 562 F.3d 839, 842 (7th Cir. 2009).”

Affirmed
<a href=”http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&amp;Path=Y2016/D01-26/C:15-1545:J:Shah:aut:T:fnOp:N:1693035:S:0″>Full Text</a><div>

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<b>7^th Circuit Court of Appeals</b>
<b>Case Name: Ratina Bagwe v. Sedgwick Claims Management Services, Inc., et al., </b>
<b>Case No.: 14-3201</b>
<b>Officials: FLAUM, RIPPLE, and SYKES, Circuit Judges</b>
<b>Practice Area: Title VII</b>

Appellant fails to prove up allegations of retaliatory termination and discrimination.

“Finally, Ms. Bagwe claims that she was terminated for retaliatory reasons.64 A termination is undoubtedly an adverse employment action. Oest, 240 F.3d at 613. However, Ms. Bagwe has not linked her termination to her complaints of discrimination, or established that the reasons given by Sedgwick are pretextual. Rather, Sedgwick’s rationale for terminating Ms. Bagwe has been consistent and finds support in the record. The PIP laid out in detail the company’s concerns with Ms. Bagwe’s leadership skills. The investigation showed that Sedgwick took Ms. Bagwe’s complaints of discrimination seriously and that its willingness to investigate her claims cannot be characterized as a punitive action. The termination came after numerous complaints from coworkers and Ms. Bagwe’s placement on a PIP. See Langenbach, 761 F.3d at 800 (affirming summary judgment where the timing and pretext arguments relied on “unbridled speculation,” and the record presented a clear history of performance issues). Ms. Bagwe therefore has not met her burden with regard to her claims of retaliation”

Affirmed
<a href=”http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&amp;Path=Y2016/D01-26/C:14-3201:J:Ripple:aut:T:fnOp:N:1692303:S:0″>Full Text</a><div>

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<b>7^th Circuit Court of Appeals</b>
<b>Case Name: Window World of Chicagoland, LLC et al v. Window World, Inc., et al</b>
<b>Case No.: 15-2224</b>
<b>Officials: EASTERBROOK, MANION, and SYKES, Circuit Judges.</b>
<b>Practice Area: Trademark Litigation – Consolidation</b>

Multiple cases properly denied consolidation

“The difference between administrative and full consolidation is established by Fed. R. Civ. P. 42(a). Subsection (a)(2) provides for full consolidation, while subsections (a)(1) and (a)(3) authorize other forms of consolidation. Suits 2 and 3 have been joined for hearings, see Rule 42(a)(1), rather than fully consolidated under Rule 42(a)(2). Suits administratively consolidated for hearings retain their independent existence. See Gelboim v. Bank of America Corp., 135 S. Ct. 897 (2015) (same result for cases consolidated under 28 U.S.C. §1407 for pretrial proceedings). So Judge Blakey was right, for the right reason. (Hampton concedes that, if Suit 2 remains separate from Suit 3, his current claims are barred.)”

Affirmed
<a href=”http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&amp;Path=Y2016/D01-27/C:15-2224:J:Easterbrook:aut:T:fnOp:N:1693131:S:0″>Full Text</a><div>

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<b>7^th Circuit Court of Appeals</b>
<b>Case Name: Hedeen International, LLC v. Zing Toys, Inc.</b>
<b>Case No.: 15-1749</b>
<b>Officials: KANNE, ROVNER, and SYKES, Circuit Judges.</b>
<b>Practice Area: Process of Service – Personal Jurisdiction</b>

Defense of lack of personal jurisdiction not waived by failure to file motion within 21 days after being served.

“Litigators should be able to rely on the plain language of the Rules in conducting litigation in federal court. Under a straightforward reading of Rule 12, a challenge to personal jurisdiction may be asserted either in a responsive pleading filed within 21 days, or in a motion with no similar time limit specified. That does not mean the time for filing such a motion is unbounded or that the plaintiff was without recourse. Failure to file a motion or responsive pleading in 21 days may result in the issuance of a default judgment against the defendant. Moreover, a personal jurisdiction defense may be waived if a defendant gives a plaintiff a reasonable expectation that he will defend the suit on the merits or where he causes the court to go to some effort that would be wasted if personal jurisdiction is subsequently found lacking. H-D Michigan, LLC v. Hellenic Duty Free Shops S.A., 694 F.3d 827, 848 (7th Cir. 2012); Mobile Anesthesiologists Chicago, LLC v. Anesthesia Associates of Houston Metroplex, P.A., 623 F.3d 440, 443 (7th Cir. 2010). But Hedeen has declined to argue that the delay in filing the motion met those standards, relying solely on the argument that it was untimely because filed more than 21 days after service of the complaint. We agree with the district court that the defense was not waived by the failure to file the motion within 21 days.”

Affirmed
<a href=”http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&amp;Path=Y2016/D01-27/C:15-1749:J:Rovner:aut:T:fnOp:N:1693702:S:0″>Full Text</a><div>

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<b>7^th Circuit Court of Appeals</b>
<b>Case Name: United States of America v. Ambrose Clayton</b>
<b>Case No.: 15-2553</b>
<b>Officials: RIPPLE, WILLIAMS, and HAMILTON, Circuit Judges.</b>
<b>Practice Area: Pleas &amp; Sentencing – Reduction of Sentence</b>

Court did not commit reversible error in failing to reduce appellant sentence.

“The court committed no reversible error in step one. At the original sentencing, the parties and the court correctly anticipated that the proposed guideline would reduce Clay‐ ton’s base offense level by two, with a new low end of 108 months. While the district court did not itself state the new range when Clayton moved for a sentencing reduction, it acknowledged, as step one contemplates, that the amendment reduced Clayton’s offense level and that he was eligible for a reduction in sentence. The purpose of step one was anticipated and then achieved. Further, at the original sentencing hearing, the district court explained that it would not reduce Clayton’s sentence any further based on the anticipated new guideline. Any error in not stating the new range explicitly after the amendment actually took effect would have been harmless. See United States v. Hill, 645 F.3d 900, 912 (7th Cir. 2011).”

Affirmed
<a href=”http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&amp;Path=Y2016/D01-28/C:15-2553:J:PerCuriam:aut:T:fnOp:N:1694235:S:0″>Full Text</a><div>

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<b>7^th Circuit Court of Appeals</b>
<b>Case Name: United States of America v. Terry Smith</b>
<b>Case No.: 14-3744; 14-3721</b>
<b>Officials: POSNER and WILLIAMS, Circuit Judges, and PALLMEYER, District Judge</b>
<b>Practice Area: General Appeal – Court Error</b>

Judge errs by failing to state standard conditions of supervised release at sentencing.

“The judge devoted the bulk of his sentencing statement to recounting cases in which defendants had been sentenced for crimes comparable to Smith’s. In one case, United States v. DiSantis, 565 F.3d 354 (7th Cir. 2009), a police officer had struck a bystander who was filming a traffic stop by the officer, hitting the man on the head and face with the man’s camera, then throwing the camera on the ground and stomping on it, and finally patting the man down and—for good measure, as it were—squeezing his genitals. For this brutal and bizarre behavior, the officer was sentenced to 66 months in prison. It’s not obvious to us that his behavior was more brutal than that visited by Smith on his victims, particularly when we note that Smith had assaulted two persons in separate incidents and had a history of violence; no such history is mentioned in Judge Lawrence’s discussion of the camera case.”

Conviction Affirmed.
Sentence vacated and remanded for resentencing
<a href=”http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&amp;Path=Y2016/D01-28/C:14-3744:J:Posner:aut:T:fnOp:N:1693902:S:0″>Full Text</a><div>

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<b>7^th Circuit Court of Appeals</b>
<b>Case Name: Charles Donelson v. Randy Pfister</b>
<b>Case No.: 14-3395</b>
<b>Officials: POSNER, ROVNER, and HAMILTON, Circuit Judges.</b>
<b>Practice Area: Violation of Right to Due Process</b>

Court disallowing appellant to call witness of have access to exculpatory recording followed by ruling against appellant on merits violated his right to due process.

“Donelson told the adjustment committee that the named witnesses would testify that he complied with rather than opposed Watson’s orders, that the surveillance videos would confirm he had permission to leave the wing during the first incident and that two guards kept him from fleeing Watson’s assault during the second incident, and that the telephone recording would show that he called for help during Watson’s assault. This evidence, if Donelson has described it accurately, would undermine the committee’s decision. We could not conclude that any error in excluding the evidence was harmless. Compare Pannell v. McBride, 306 F.3d 499, 503 (7th Cir. 2002) (remanding for evidentiary hearing when testimony “might have buttressed a potentially valid defense”), and Piggie v. Cotton, 344 F.3d 674, 679 (7th Cir. 2003) (remanding for evidentiary hearing when record did not “demonstrate with any degree of certainty that” requested evidence “lacked exculpatory value or was otherwise irrelevant”), with Jones, 637 F.3d at 846–47 (affirming denial of § 2254 petition because proffered testimony would not have changed disciplinary committee’s guilty finding), and Piggie, 344 F.3d at 678 (rejecting argument that denial of requested witnesses violated due process since inmate failed to explain how testimony would have aided his defense).”

Vacated and Remanded
<a href=”http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&amp;Path=Y2016/D01-28/C:14-3395:J:Hamilton:aut:T:fnOp:N:1694237:S:0″>Full Text</a><div>

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<b>7^th Circuit Court of Appeals</b>
<b>Case Name: Michael Belleau v. Edward Wall</b>
<b>Case No.: 15-3225</b>
<b>Officials: BAUER, POSNER, and FLAUM, Circuit Judges.</b>
<b>Practice Area: 4^th Amendment violation – Constitutionality </b>

Electronic monitoring of repetitive sex offender does not violate 4^th amendment.

“Having to wear the monitor is a bother, an inconvenience, an annoyance, but no more is punishment than being stopped by a police officer on the highway and asked to show your driver’s license is punishment, or being placed on a sex offender registry, held by the Supreme Court in Smith v. Doe, supra, and by our court in Mueller v. Raemisch, supra, 740 F.3d at 1133, not to be punishment. But while citing Smith v. Doe the district judge in this case did not properly apply that decision, but instead embraced the hyperbolic statement in Riley v. New Jersey State Parole Bd., 98 A.3d 544, 559 (N.J. 2014), that “the tracking device attached to Riley’s ankle identifies Riley as a sex offender no less clearly than if he wore a scarlet letter.” No, the aim of requiring a person who has psychiatric compulsion to abuse children sexually to wear a GPS monitor is not to shame him, but to discourage him from yielding to his sexual compulsion, by increasing the likelihood that if he does he’ll be arrested because the Department of Corrections will have incontestable evidence that he was at the place where and at the time when a sexual offense was reported to have occurred.”

Reversed
<a href=”http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&amp;Path=Y2016/D01-29/C:15-3225:J:Posner:aut:T:fnOp:N:1694901:S:0″>Full Text</a><div>

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<b>7^th Circuit Court of Appeals</b>
<b>Case Name: Stark Excavating, Inc. v. Thomas Perez</b>
<b>Case No.: 14-3809</b>
<b>Officials: MANION, ROVNER, and HAMILTON, Circuit Judges.</b>
<b>Practice Area: OSHA – Willful Violations</b>

Petition to review denied where company said to not have effective enforcement of safety policy.

“The utilization of written tickets as opposed to verbal warnings would facilitate effective enforcement of the safety rules by allowing the tracking of violations by particular employees especially when working for different foremen. That policy, however, was routinely disregarded. Between August 2006—when the policy was first implemented—and the 2008 inspection at issue here, only 33 tickets had been issued. Of those, six were issued by Stark’s area manager in Champaign in September 2006 and the rest were issued by Stark’s safety director Clayton. No other supervisorissued any written tickets between September 2006 and the violation in this case, and Schupp and Ron Martin, a Stark superintendent, testified that they never issued any safety tickets and preferred to verbally correct employees. As to Clayton, testimony also indicated that the supervisors communicated by radio with each other to provide advance warning when Clayton was in the area conducting safety audits. In light of that evidence, the ALJ concluded that Stark failed to demonstrate that it effectively enforced its own rules and policies for safety violations. The Commission affirmed the ALJ’s determination that Stark failed to demonstrate effective enforcement, and we agree. Accordingly, Stark failed to demonstrate that it had a safety policy that was effectively enforced during that time, and its argument fails for that reason as well.”

Petition For Review Denied
<a href=”http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&amp;Path=Y2016/D01-29/C:14-3809:J:Rovner:aut:T:fnOp:N:1694913:S:0″>Full Text</a><div>

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<p align=”center”><b>WI COURT OF APPEALS </b></p><p align=”center”></p>

<b>WI Court of Appeals – District I</b>
<b>Case Name: Kimberly C. Hying v. Martin B. Hying</b>
<b>Case No.: 2014AP1780</b>
<b>Officials: Curley, P.J., Kessler and Brennan, JJ.</b>
<b>Practice Areas: Divorce </b>

<div>
Martin B. Hying appeals the circuit court’s order of June 26, 2014. He argues: (1) the circuit court misused its discretion in awarding sole legal custody of the parties’ child to Kimberly C. Niemi, his former wife; (2) the circuit court misused its discretion in denying him physical placement with his daughter; (3) the circuit court misused its discretion in ordering that his daughter’s periods of physical placement with him be resumed as deemed appropriate by his daughter’s therapist; (4) the circuit court misused its discretion in ordering that he pay $23,616 of Niemi’s attorney fees; and (5) the circuit court misused its discretion in ordering him to pay 75% of the guardian ad litem’s fees. We affirm.

<a href=”http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&amp;seqNo=160055″><b>Full Text</b></a>

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<b>WI Court of Appeals – District III</b>
<b>Case Name: Harry A. Joles, JR. v. Anthony M. Sciascia and Penny D. Sciascia</b>
<b>Case No.: 2015AP125</b>
<b>Officials: Stark, P.J., Hruz and Seidl, JJ.</b>
<b>Practice Areas: Easements</b>

<div>
Anthony and Penny Sciascia appeal an order in this property dispute between adjoining landowners. Harry Joles’s property is benefitted by an easement for ingress and egress over the northernmost portion of he Sciascias’ land. Joles’s residence is located very near the property boundary, and he constructed a deck and access ramp to the residence along with other improvements that partially intrude into the easement area. The Sciascias challenge the circuit court’s conclusion that the deck and ramp were reasonable improvements to the easement for the purpose of ingress and egress. We reverse because Joles has failed to meaningfully address whether the improvements are consistent with the purpose of the easement grant, as required by the relevant case law. However, we remand to the circuit court to determine whether the equities demand that the improvements be removed and to consider whether either party is entitled to costs.
<b> </b>
<a href=”http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&amp;seqNo=160078″><b>Full Text</b></a>

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<b>WI Court of Appeals – District III</b>
<b>Case Name: State of Wisconsin v. Devonte M. Williams</b>
<b>Case No.: 2015AP138-CR</b>
<b>Officials: Stark, P.J., Hruz and Seidl, JJ.</b>
<b>Practice Areas: Ineffective Assistance of Counsel</b>

<div>
Devonte Williams appeals a judgment of conviction for armed robbery and armed burglary, as party to a crime with repeater enhancements, and the denial of a postconviction motion for a new trial. Williams argues his trial counsel was ineffective for failing to object to the identification testimony of two probation agents. Williams also argues he is entitled to sentence credit. We affirm.

<a href=”http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&amp;seqNo=160148″><b>Full Text</b></a>

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<b>WI Court of Appeals – District I</b>
<b>Case Name: State of Wisconsin v. Guadalupe Ronzon</b>
<b>Case No.: 20165AP498-CR</b>
<b>Officials: BRASH, J. </b>
<b>Practice Areas: Sufficiency of Evidence – Abuse of Discretion</b>

<div>
Guadalupe Ronzon appeals from an amended judgment of conviction entered after she pled guilty to a duty upon striking charge contrary to WIS. STAT. § 346.67(1). Ronzon argues that the evidence presented at the restitution hearing was insufficient as a matter of law to support the circuit court’s restitution award of $8902.80 to the victim, A.E. Ronzon further argues that the circuit court erroneously exercised its discretion in setting restitution because of inconsistencies in A.E.’s testimony at the restitution hearing. We disagree and affirm.

<a href=”http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&amp;seqNo=160208″><b>Full Text</b></a>

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<b>WI Court of Appeals – District III</b>
<b>Case Name: State of Wisconsin v. David J. Reidinger</b>
<b>Case No.: 2015AP902</b>
<b>Officials: HRUZ, J. </b>
<b>Practice Areas: Disorderly Conduct</b>

David Reidinger was found to have violated WIS. ADMIN. CODE § UWS 18.11(2), which prohibits disorderly conduct in University of Wisconsin System buildings or on university lands. The evidence at trial established that others witnessed Reidinger viewing pornography in a public library on the University of Wisconsin-Eau Claire (UWEC) campus. On appeal, Reidinger argues he has a First Amendment right to view legal adult pornographic material at a public library.3Reidinger also vaguely alludes to a conspiracy between numerous public officers and employees to harass him. We reject these arguments and affirm.

<div>
<a href=”http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&amp;seqNo=160118″><b>Full Text</b></a>
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<b>WI Court of Appeals – District I</b>
<b>Case Name: Milwaukee City v. Melvin Shelton</b>
<b>Case No.: 2015AP937</b>
<b>Officials: BRENNAN, J. </b>
<b>Practice Areas: Motion to Reopen</b>

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Melvin Shelton, pro se, appeals from the circuit court’s decision to deny his motion to reopen a judgment awarding the City of Milwaukee $6,468.20 for delinquent property taxes and special assessments. Shelton makes various statements for reopening: (1) he did not receive the Summons and Complaint; (2) he suffers from mental illness; (3) the default judgment entered against him was not valid because it was not signed by a judge and instead was signed by Milwaukee Circuit Court Clerk; and (4) his income is exempt. We review a denial of a motion to reopen a judgment for an improper exercise of discretion. It is appellant’s burden to file a copy of the transcript of the circuit court’s decision. See Austin v. Ford Motor Co., 86 Wis. 2d 628, 641, 273 N.W.2d 233 (1979). See also State Bank of Hartland v. Arndt, 129 Wis. 2d 411, 423, 385 N.W.2d 219 (Ct. App. 1986); State v. Holmgren, 229 Wis. 2d 358, 362 n2, 599 N.W.2d 876 (Ct. App. 1999). Shelton failed to do so, saying in his Statement on Transcript that one was “not necessary” for resolution of the appeal. Shelton is wrong. A transcript of the circuit court’s reasoning is necessary for a discretionary review. When an appellant fails to file a transcript, we presume that the circuit court properly exercised its discretion. Fiumefreddo v. McLean, 174 Wis. 2d 10, 26-27, 496 N.W.2d 226 (Ct. App. 1993). We could stop our review with the presumption, but instead, in the interest of completeness, have reviewed the rest of the record and conclude, based on the presumption and record, that the circuit court properly exercised its discretion in denying Mr. Shelton’s motion to reopen, and we affirm.

<a href=”http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&amp;seqNo=160049″><b>Full Text</b></a>

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<b>WI Court of Appeals – District I</b>
<b>Case Name: City of Milwaukee v. Jerry D. Butler</b>
<b>Case No.: 2015AP1537</b>
<b>Officials: CURLEY, P.J. </b>
<b>Practice Areas: General Appeal </b>

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Jerry D. Butler appeals the judgment entered against him after a trial de novo in the circuit court. The circuit court found Butler guilty of violating a Milwaukee municipal court charge prohibiting the possession of marijuana contrary to MILWAUKEE, WIS., CODE OF ORDINANCES ch. 106-38-2 (2013). Because Butler has failed to perfect his appeal, this appeal is dismissed.

<a href=”http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&amp;seqNo=160073″><b>Full Text</b></a>

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<b>WI Court of Appeals – District I</b>
<b>Case Name: City of West Allis v. Teresa A. Michals</b>
<b>Case No.: 2015AP1688; 2015AP1689</b>
<b>Officials: BRASH, J. </b>
<b>Practice Areas: Motion to Suppress</b>

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The City of West Allis (“West Allis”) appeals circuit court orders granting defendant Teresa A. Michals’ motion to suppress evidence obtained from a traffic stop. West Allis argues that the circuit court erred in granting Michals’ motion to suppress because the arresting officer had reasonable suspicion to stop her vehicle. We disagree and affirm.

<a href=”http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&amp;seqNo=160048″><b>Full Text</b></a>

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<b>WI Court of Appeals – District II</b>
<b>Case Name: State of Wisconsin v. Jose L. Cabrera-Garcia</b>
<b>Case No.: 2014AP2189-CR</b>
<b>Officials: Neubauer, C.J., Reilly, P.J., and Gundrum, J.</b>
<b>Practice Areas: Motion to Suppress – Court Error </b>

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Jose Cabrera-Garcia appeals from a judgment convicting him of first-degree sexual assault of a child under thirteen after a jury trial. On appeal, Cabrera-Garcia challenges the circuit court’s refusal to suppress his inculpatory statements and the use of the victim’s inconsistent out-of-court statements to counter her trial testimony. We discern no circuit court error, and we affirm

<a href=”http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&amp;seqNo=160249″><b>Full Text</b></a>

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<b>WI Court of Appeals – District II</b>
<b>Case Name: State of Wisconsin v. Richard W. Novak</b>
<b>Case No.: 2015AP942-CR</b>
<b>Officials: Neubauer, C.J., Reilly, P.J., and Hagedorn, J.</b>
<b>Practice Areas: Ineffective Assistance of Counsel</b>

Richard W. Novak appeals from a judgment of conviction for possession with intent to deliver in excess of forty grams of cocaine and an order denying his motion for postconviction relief vacating the conviction on the basis that trial counsel rendered constitutionally ineffective assistance by failing to attack the warrant authorizing a search of Novak’s residence as unsupported by probable cause. We conclude that the warrant was supported by probable cause and, consequently, on this basis Novak was not deprived of the effective assistance of counsel. Thus, we affirm the judgment and order.<div>

<a href=”http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&amp;seqNo=160243″><b>Full Text</b></a>

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<b>WI Court of Appeals – District II</b>
<b>Case Name: Karen J. Wilks v. Mary Pangman Schmitt</b>
<b>Case No.: 2015AP1228</b>
<b>Officials: Neubauer, C.J., Gundrum and Hagedorn, JJ.</b>
<b>Practice Areas: Court Error – Res Judicata</b>

Karen J. Wilks, pro se, appeals an order denying her motion for relief from a judgment. She contends the circuit court erred when it dismissed the underlying action on the basis of res judicata because that conclusion rested on the mistaken belief that a prior small claims case had been dismissed with prejudice. We reject her arguments and affirm.

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<a href=”http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&amp;seqNo=160012″><b>Full Text</b></a>
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<b>WI Court of Appeals – District IV</b>
<b>Case Name: Great-West Life &amp; Annuity Insurance Co., et. al. v. Wisconsin Department of Revenue</b>
<b>Case No.: 2013AP2605; 2013AP2765</b>
<b>Officials: Kloppenburg, P.J., Lundsten and Higginbotham, JJ.</b>
<b>Practice Areas: Tax Assessment</b>

Donald Bottolfson won the Wisconsin “Megabucks” lottery (the “prize money”) in 1994. The primary issue in this case is whether the Wisconsin Tax Appeals Commission properly denied the request of Great-West Life &amp; Annuity Insurance Co. to refund money withheld by the Wisconsin Department of Revenue (DOR) from prize money payments made to a trust, the Bottolfson 1997 Trust, which was created to receive the prize payments.  DOR withheld the money because of back taxes owed by Bottolfson, who at the time the money was withheld, was a beneficiary of the Trust. For reasons that will become clearer below, to resolve this issue requires us to determine whether Bottolfson’s sale to Great-West of the income stream Bottolfson would have received from the Trust constitutes an assignment in violation of WIS. STAT. § 565.30(6) (1997-98). 2 If we conclude that the sale of the income stream violates sub. (6), we must determine whether DOR is equitably estopped from objecting to the assignment. For the reasons that follow, we conclude that Bottolfson’s sale of the income stream constitutes an assignment of the right to a lottery prize in violation of WIS. STAT. § 565.30(6), and, turning to Great West’s alternative argument, further conclude that DOR is not equitably estopped from objecting to the assignment. Accordingly, we reverse the circuit court and affirm the commission<div>

<a href=”http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&amp;seqNo=160382″><b>Full Text</b></a>

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<b>WI Court of Appeals – District IV</b>
<b>Case Name: State of Wisconsin v. James E. McCAnn</b>
<b>Case No.: 2014AP2180-CR</b>
<b>Officials: Lundsten, Sherman and Blanchard, JJ.</b>
<b>Practice Areas: Ineffective Assistance of Counsel </b>

James E. McCann appeals a judgment of conviction after a jury found him guilty of one count of first-degree child sexual assault (sexual contact with a child younger than 13) and one count of repeated sexual assault of the same child (at least three acts of first-degree sexual assault). See WIS. STAT. §§ 948.02(1)(e) and 948.025(1)(d) (2009-10). In a postconviction motion for a new trial, McCann argued that his trial attorney was ineffective for not objecting to the verdict form and the jury instructions. The circuit court denied McCann’s motion in an order that McCann also appeals. We affirm.

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<a href=”http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&amp;seqNo=160330″><b>Full Text</b></a>
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<b>WI Court of Appeals – District IV</b>
<b>Case Name: State of Wisconsin v. Jeanette M. Janusiak</b>
<b>Case No.: 2015AP160-CR</b>
<b>Officials: Kloppenburg, P.J., Lundsten, and Blanchard, JJ.</b>
<b>Practice Areas: Motion to Suppress</b>

Jeanette Janusiak appeals a judgment of conviction for first-degree intentional homicide. Janusiak argues that the circuit court should have suppressed in-custody statements Janusiak made to police because the statements were involuntary and, as a result, the court should not have allowed the State to use the statements against Janusiak at trial. For the following reasons, we affirm.

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<a href=”http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&amp;seqNo=160383″><b>Full Text</b></a>
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<b>WI Court of Appeals – District III</b>
<b>Case Name: Adoptions of Wisconsin, Inc. v. J.S. </b>
<b>Case No.: 2015AP1403</b>
<b>Officials: STARK, P.J. </b>
<b>Practice Areas: Termination of Parental Rights</b>

J.S. appeals an order terminating his parental rights to R.C. and an order denying his postdisposition motion. J.S. argues the circuit court erroneously exercised its discretion by denying his postdisposition motion to reopen a default judgment entered based upon his failure to appear at the termination of parental rights (TPR) hearing in response to a summons. We disagree and affirm the orders.

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<a href=”http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&amp;seqNo=160645″><b>Full Text</b></a>
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