Weekly Case Digests — Feb. 27 – Mar. 3, 2017

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Alma Glisson v. Indiana Department of Corrections, et al

Case No.: 15-1419

Officials: WOOD, Chief Judge, and BAUER, POSNER, FLAUM, EASTERBROOK, KANNE, ROVNER, WILLIAMS, SYKES, and HAMILTON, Circuit Judges.

Focus: 8^th Amendment Violation

Nicholas Glisson entered the custody of the Indiana Department of Corrections on September 3, 2010, upon being sentenced for dealing in a controlled substance (selling one prescription pill to a friend who turned out to be a confidential informant). Thirty-seven days later, he was dead from starvation, acute renal failure, and associated conditions. His mother, Alma Glisson, brought this lawsuit under 42 U.S.C. § 1983. She asserts that the medical care Glisson received at the hands of the Department’s chosen provider, Correctional Medical Services, Inc. (known as Corizon) violated his rights under the Eighth Amendment to the U.S. Constitution (made applicable to the states by the Fourteenth Amendment). A panel of this court concluded that Corizon was entitled to summary judgment in its favor. See Glisson v. Indiana Dep’t of Corr., 813 F.3d 662 (7th Cir. 2016). The court decided to rehear the case en banc in order to examine the standards for corporate liability in such a case. We conclude that Glisson presented enough evidence of disputed, material issues of fact to proceed to trial, and we therefore reverse the district court’s judgment.

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: United States of America v. Antwon Jenkins

Case No.: 14-2898

Officials: KANNE and SYKES, Circuit Judges, and ELLIS, District Judge

Focus: Breach of Proffer Agreement

Defendant‐Appellant, Antwon Jenkins, was arrested and charged with Kidnapping, 18 U.S.C. § 1201(a), and Using or Carrying a Firearm to Commit a Federal Crime of Violence, 18 U.S.C. § 924(c)(1)(A)(ii). Following his arrest, Jenkins agreed to cooperate with the Government’s investigation of these crimes and give a proffer inter‐ view. Prior to the interview, the Government and Jenkins entered into a proffer agreement, the terms of which prohibited the Government from making direct use of any statements or information Jenkins provided during the interview in its case‐in‐chief, but permitted the Government to derivatively use such information. During the interview, Jenkins told the Government where he hid the gun he used during the kid‐ napping. The Government used this information to recover the gun and then introduced both physical evidence of the gun, as well as the testimony of the agents who found the gun (collectively, the “gun evidence”), during its case‐in‐ chief. A jury convicted Jenkins on all counts and he received a sentenced of 308 months in prison—188 months for kid‐ napping and 120 months for using a firearm to commit a federal crime of violence, to run consecutively. On appeal, Jenkins argues that the Government breached the proffer agreement by directly using the information he provided during the proffer interview against him during its case‐in‐ chief.   After Jenkins filed his appeal and the parties argued the case before this panel, but before we decided the appeal, the Supreme Court issued its opinion in Johnson v. United States, ‐‐‐ U.S.  ‐‐‐‐, 135 S. Ct. 2551, 192 L. Ed. 2d 569 (2015), which held the residual clause of the Armed Career Criminals Act (“ACCA”), 18 U.S.C. § 924(e), to be unconstitutionally vague.

Jenkins then filed a supplemental appellate brief challenging his conviction under 18 U.S.C. § 924(c) for using a weapon during a “crime of violence,” in this case kidnapping under 18 U.S.C. 1201(a), arguing that in light of the ruling in John‐ son, kidnapping is no longer a “crime of violence” as defined under § 924(c), and therefore his conviction under § 924(c) must be overturned as a matter of law. The Government argues that the ruling in Johnson should not be extended to the Residual Clause of § 924(c), and even if it were, kidnapping would still be a crime of violence under the Force Clause, § 924(c)(3)(A), which Johnson did not implicate. Because the Residual Clause, § 924(c)(3)(B), is unconstitutionally vague and kidnapping under § 1201(a) does not have, as an element, the use, threatened use, or attempted use of physical force, we reverse Jenkins’ conviction under § 924(c). Because Jenkins’ conviction under § 924(c) is the only issue on appeal, we need not reach the original appellate issue of whether the Government breached the proffer agreement.

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: Joyce Whitaker

Case No.: 16-1807

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

Focus: Rehabilitation Act

Plaintiff Joyce Whitaker worked for the Wisconsin Department of Health Services. The Department fired Whitaker when she did not return to work after exhausting her unpaid statutory and contractual medical leave. Whitaker sued, claiming that the Department failed to accommodate her disability and terminated her employment in violation of the Rehabilitation Act. The district court granted summary judgment in favor of the Department on several grounds. We agree with the district court that Whitaker failed to establish that she was an “otherwise qualified” employee, as required by the Rehabilitation Act, and we affirm the grant of summary judgment.

Affirmed

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WI Court of Appeals

WI Court of Appeals – District I

Case Name: Clear Channel Outdoor, Inc. v. City of Milwaukee

Case No.: 2015AP1876

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

Focus: Tax Assessment

This case presents a narrow issue: whether the City of Milwaukee (the City) properly assessed the billboard permits of Clear Channel Outdoor, Inc. (“Clear Channel”) as real property for the years 2009- 2013. Clear Channel brought this excessive assessment action under WIS. STAT. § 74.37 (2011-12) , raising statutory and constitutional challenges to the City’s tax assessments on approximately 850 billboard permits for each year from 2009 through 2011; later the complaint was amended to include the years 2012 and 2013. Clear Channel sought a declaratory judgment that the assessments were invalid and a refund of the taxes paid on the grounds that it was improper to assess the billboard permits as real property.

Recommended for publication
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WI Court of Appeals – District I

Case Name: City of Milwaukee v. List of Tax Liens for 2015 #3

Case No.: 2015AP2523

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

Focus: Foreclosure

Karen Hayes, pro se, appeals a judgment of foreclosure entered in favor of the City of Milwaukee, which commenced the action to foreclose on property tax liens pursuant to WIS. STAT. § 75.521 (2015- 16).  The circuit court rejected Hayes’s defense that she and the City had renegotiated an earlier agreement for her payment of the delinquent taxes. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Robert Mario Wheeler

Case No.: 2016AP55-CR

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

Focus: New Trial – Retroactive Misjoinder

Robert Mario Wheeler appeals from a judgment of conviction for being a felon in possession of a firearm and an order denying his post-conviction motion for a new trial. Wheeler argues that the trial court violated his right to procedural and substantive due process by rendering a verdict on the felon in possession count, which was tried to the court, while the jury was deliberating on the count of reckless injury and denying him an opportunity to make a closing argument on the felon in possession count. He also argues that because there was a mistrial as to the reckless injury count and the State ultimately dismissed that count, he is entitled to have a new trial on the felon in possession count under the doctrine of retroactive misjoinder. Finally, he argues that the conviction is not supported by sufficient evidence. We disagree and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. D.T.

Case No.: 2016AP1488

Officials: Brash, J.

Focus: Termination of Parental

D.T. appeals an order terminating her parental rights to her son, X.L.T. She also appeals the order denying her postdispositional motion. On appeal, D.T. argues that her stipulation to grounds existing to terminate her parental rights to X.L.T. was not knowingly, intelligently, and voluntarily made. We disagree and affirm.

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WI Court of Appeals – District

Case Name: State of Wisconsin v. T.T.H.

Case No.: 2016AP1553-CR; 2016AP1554-CR

Officials: Dugan, J.

Focus: Juvenile Court – Waiver to Adult Court

In these consolidated appeals, T.T.H. appeals from non-final circuit court orders waiving juvenile court jurisdiction to adult court in two juvenile cases. T.T.H. argues the trial court must give paramount consideration to the child’s best interest in weighing the various criteria for waiver to adult court and that it is impossible to determine from the record if the court did so. Additionally, T.T.H. contends that the trial court failed to give sufficient and proper consideration to the suitability of T.T.H. receiving services in the Serious Juvenile Offender program (“S.J.O.”). This Court disagrees and affirms the trial court’s orders.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Marcus M. Henry

Case No.: 2015AP92-CR

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

Focus: Ineffective Assistance of Counsel

Marcus Henry appeals from a judgment convicting him of possessing cocaine with intent to deliver and maintaining a drug trafficking place and from an order denying his postconviction motion seeking a new trial due to ineffective assistance of trial counsel. On appeal, Henry argues that the search warrant was not supported by probable cause and other acts evidence was admitted at trial that exceeded the scope of the pretrial circuit court order admitting such evidence. We are not persuaded by Henry’s arguments. We further hold that Henry forfeited his argument that the judge who issued the search warrant should not have presided over Henry’s motion to suppress challenging the search warrant as not supported by probable cause. We affirm the judgment of conviction and the order denying the postconviction motion.

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WI Court of Appeals – District II

Case Name: Michael A. Spadaro v. Jacqueline R. Hunek

Case No.: 2015AP1040

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

Focus: Divorce – Marital Assets

Jacqueline R. Hunek appeals the property division portion of a divorce judgment, challenging the circuit court’s determination that her former husband, Michael A. Spadaro, did not waste marital assets. According to Hunek, Spadaro’s inability to account for $75,635 of his income over a severalyear period constitutes waste entitling Hunek to half that amount’s value. We conclude that the circuit court properly exercised its discretion in determining that Spadaro did not waste marital assets. We affirm.

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WI Court of Appeals – District II

Case Name: Richard E. Olson et al v. Aleksandar Ivanovic

Case No.: 2015AP1803

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

Focus: Improper Service – Claim Preclusion

Richard Olson is the sole owner of Webcom Solutions, Inc. (WSI). WSI contracted with respondents Webcom, Inc. and Callidus Software, Inc. to sell software, and as part of that agreement, the parties agreed to submit any disputes “arising out of or relating to” the agreement to arbitration. Following disputes, arbitration proceedings were in fact commenced and concluded with an award. Subsequently, however, Olson filed suit in the circuit court on behalf of himself personally and his company raising various tort claims he believes are not subject to arbitration. Critically, Olson did not properly serve the respondents. The respondents answered with a motion to dismiss on substantive grounds, rather than asserting improper service. Olson responded with a motion for default judgment, maintaining service was proper and that the motion to dismiss was filed after the statutory time to answer. The circuit court denied the motion for default judgment and granted the respondents’ motion to dismiss under the doctrine of claim preclusion.

Olson and WSI appeal on two grounds. They argue the court should have granted default judgment and that claim preclusion does not apply because the complaint alleges claims different from those brought in arbitration, Olson and WSI are not in privity, and the complaint alleges claims that are not arbitrable. We hold that (1) the circuit court permissibly and properly denied the motion for default judgment because Olson and WSI never proved service on the respondents; and (2) Olson’s and WSI’s claims are precluded because they share a common nucleus of operative fact with those brought in arbitration, Olson and WSI are in privity, and the claims brought in the complaint were, or could have been, arbitrated because they arose out of and related to the agreement. Accordingly, we affirm the circuit court’s order dismissing Olson’s and WSI’s lawsuit, and the judgment for costs and attorneys’ fees.

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WI Court of Appeals – District III

Case Name: Judy C. Drexler v. McMillan Warner Mutual Insurance Company

Case No.: 2015AP2047

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

Focus: Negligence – Summary Judgment

Judy Drexler, surviving spouse of Jerome Drexler, appeals a summary judgment granted in favor of James Weiland and his insurer. We conclude Smaxwell v. Bayard, 2004 WI 101, 274 Wis. 2d 278, 682 N.W.2d 923, bars Drexler’s common law negligence claim because it is undisputed Weiland was not the owner or keeper of the horse that caused Jerome’s death. Accordingly, we affirm.

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WI Court of Appeals – District II

Case Name: Dennis Hoelzel v. Eleonora I. Hoelzel Revocable Trust

Case No.: 2015AP2311; 2016AP270

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

Focus: Court Error – Conflict of Interest

These consolidated appeals stem from an action for the closing of the Eleonora I. Hoelzel Revocable Trust (the Trust). Co-trustee Dennis Hoelzel1 appeals two orders. One order confirmed the appointment of the law firm of Block, Seymour, Chudacoff, Samson & Liebzeit, S.C. (Block Seymour), as attorneys for the Trust and ordered the Trust to pay Block Seymour’s attorneys’ fees. The second ordered that Dennis’s share of the Trust’s distribution, which would go to a trust established for his benefit (the Dennis Trust), should pay the fees for his attorney, and, if funds were insufficient, a mortgage would be placed against the real property distributed from the Trust to the Dennis Trust.

Dennis asserts that the Trust should not compensate Block Seymour for the entirety of its representation of the Trust because, he alleges, the firm initially represented his brother, Thomas Hoelzel, a beneficiary and the other co trustee, posing a conflict of interest. Dennis also contends the circuit court erred by ordering the Trust to pay his, Dennis’s, attorney’s fees from his share of the Trust and potentially awarding a mortgage against the real property the Trust would be distributing to the Dennis Trust. We disagree with Dennis and observe that the mortgage issue has become moot. We affirm the orders.

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WI Court of Appeals – District II

Case Name: MH Imaging, LLC v. K&K Holdings, LLC

Case No.: 2015AP2552

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

Focus: Limited Liability – Economic Loss doctrine – Sufficiency of Evidence

Frank Kaldis appeals from a judgment entered in favor of MH Imaging, LLC, following a dispute over a lease for commercial space. He contends that (1) he was immune from liability due to his membership in a limited liability company (LLC); (2) the economic loss doctrine barred MH’s claims against him; (3) there could be no liability for misrepresentation under WIS. STAT. § 100.18 (2015-16),  as that statute did not apply to the facts of the case; (4) there was insufficient evidence to support the jury’s verdict; and (5) he is entitled to a new trial in the interests of justice. We disagree and affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. John W. Clardy

Case No.: 2015AP2554-CR

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

Focus: Ineffective Assistance of Counsel

John Clardy appeals a judgment convicting him of delivering heroin within 1000 feet of a park, two counts of delivering heroin, conspiracy to deliver heroin, and possession of THC. He also appeals an order denying his postconviction motion in which he alleged ineffective assistance of

trial counsel. He contends his trial counsel was ineffective for (1) failing to object to the introduction of a threatening statement that he made in a jail telephone call and (2) failing to object to the prosecutor’s closing rebuttal argument that there was “nothing to refute” the State’s evidence. Because we conclude Clardy failed to establish ineffective assistance of trial counsel, we affirm the judgment and order.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Ricky C. Anderson

Case No.: 2015AP2611-CR

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

Focus: Plea Withdrawal – 6^th Amendment Violation

Ricky Anderson appeals a judgment convicting him of second-degree sexual assault of a child, as a repeater, and an order denying his postconviction motion for plea withdrawal. Anderson argues the circuit court No. 2015AP2611-CR  should have allowed him to withdraw his plea because his statutory right to be present at his plea hearing, during which the court pronounced judgment, was violated when he appeared at that hearing by telephone. Anderson further argues he did not knowingly, intelligently, and voluntarily waive his right to be present at his plea hearing. In the alternative, Anderson argues the fact that he was not present in the same room as his attorney during the plea hearing violated his Sixth Amendment right to counsel. We conclude Anderson has failed to demonstrate, under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), that his right to counsel was violated during the plea hearing. With respect to Anderson’s other argument, we agree that Anderson had a statutory right to be physically present at his plea hearing. We further conclude the circuit court’s waiver colloquy regarding Anderson’s right to be present at the plea hearing was inadequate. In addition, we reject the State’s argument that any error regarding the violation of Anderson’s right to be present at his plea hearing was harmless as a matter of law. For the reasons explained below, we therefore reverse the order denying Anderson’s postconviction motion and remand for a new postconviction evidentiary hearing, at which the State will have the burden to prove that Anderson knowingly, intelligently, and voluntarily waived his right to be present at his plea hearing.

Recommended for publication

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WI Court of Appeals – District III

Case Name: Oneida County v. Joseph A. Raven

Case No.: 2015AP2612

Officials: Seidl, J.

Focus: OWI – Motion to Suppress

Joseph Raven appeals a judgment of conviction for first-offense operating a motor vehicle while intoxicated (OWI). He argues the circuit court erred by denying his motion to suppress evidence obtained as a result of a traffic stop. We disagree and affirm.

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WI Court of Appeals – District II

Case Name: James J. Manowske v. Wisconsin Central Ltd

Case No.: 2016AP147

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

Focus: Negligence – Summary Judgment

James J. Manowske appeals an order dismissing his negligence claims against his employer, Wisconsin Central Ltd., under the Federal Employers’ Liability Act (FELA). Manowske’s suit was based on injuries suffered after he slipped and fell on ice while on the job. The circuit court granted summary judgment in favor of Wisconsin Central, determining that as a matter of

law, Manowske’s injuries were not foreseeable. Manowske argues that the circuit court incorrectly applied the FELA’s liability standard and that a genuine issue of material fact exists on the question of foreseeability. Wisconsin Central argues that summary judgment on the question of foreseeability was proper and asserts as an alternative ground supporting the propriety of summary judgment that Manowske was the sole cause of his injuries. We agree with Manowske and conclude that on the evidence before the circuit court and in light of the FELA’s relaxed liability standard, summary judgment was improper. Accordingly, we reverse and remand for further proceedings.

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WI Court of Appeals – District III

Case Name: Eau Claire county Sheriff’s Department v. Duane D. Collier

Case No.: 2016AP366

Officials: Stark, P.J.

Focus: Motion to Vacate – Competency

Duane Collier appeals an order denying his motion to vacate a 1992 Eau Claire County Circuit Court judgment of conviction for firstoffense operating while intoxicated (OWI). He argues this judgment should be vacated because the court lacked competency to exercise subject matter jurisdiction and convict him of first-offense OWI when the offense in question should have been properly charged as a criminal second-offense OWI. Collier also argues the Eau Claire County Sheriff’s Department (the County) lacked authority to prosecute the matter. We conclude Collier forfeited his right to challenge both the court’s competency to proceed and the County’s authority to prosecute this case and, accordingly, affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Peter J. Long

Case No.: 2016AP1069

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

Focus: Ineffective Assistance of Counsel

Peter J. Long pled guilty and was convicted of his eighth-offense operating a motor vehicle while intoxicated (OWI). He files this appeal, pro se, challenging an order of the circuit court denying his postconviction motion. Long seeks to withdraw his guilty plea, claiming that trial counsel and postconviction counsel were ineffective. As we conclude that counsel were not ineffective, we affirm the circuit court’s decision.

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WI Court of Appeals – District II

Case Name: Daniel W. Bruckner v. Mike McGarth

Case No.: 2016AP1312

Officials: Reilly, P.J.

Focus: Landlord Tenant – Eviction

Mike McGrath, pro se, appeals from an order granting a judgment of eviction in favor of his landlord, Daniel W. Bruckner. We affirm.

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WI Court of Appeals – District II

Case Name: Estate of Dorothy Matteson v. Mark Nelson

Case No.: 2016AP1778

Officials: Neubauer, C.J.

Focus: Petition to Reopen

A judgment was entered against Mark Nelson upon his default in failing to answer the complaint or appear in this small claims action. Nelson petitioned to reopen the judgment on the ground that he did not receive notice of the summons and complaint. The circuit court denied Nelson’s motion, and, on appeal, we affirmed that determination. See Estate of Matteson v. Nelson, No. 2015AP1669, unpublished slip op. ¶1 (WI App Dec. 30, 2015). Several months later, Nelson moved a second time to reopen the judgment, arguing that he had new evidence that showed that Estate of Dorothy Matteson, c/o Zacherl, O’Malley & Endejan (the Estate), obtained the judgment by fraud. The circuit court denied the motion, concluding that Nelson’s motion was “[w]oefully late” and he did not have a meritorious defense.

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WI Court of Appeals – District II

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

Case No.: 2016AP19330-CR

Officials: Gundrum, J.

Focus: Motion to Suppress

Thomas Gibson appeals from a judgment of conviction for operating a motor vehicle while intoxicated. He argues the circuit court erred in denying his motion to suppress evidence, which was based upon his contention the arresting officer did not have reasonable suspicion to perform a traffic stop on him because the radar unit the officer was using to determine Gibson’s speed while driving had not been calibrated or tested for accuracy within the preceding two decades. We affirm.

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WI Court of Appeals – District IV

Case Name: DuWayne J. Hoffman et al v. Scenic Ridge Verona, LLC et al

Case No.: 2014AP1766; 2014AP2896

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

Focus: Adverse Possession

DuWayne and Judith Hoffman brought an adverse possession action against developer Scenic Ridge Verona, LLC in hopes of obtaining title to a .589 acre parcel of land (“the disputed parcel”).1 The disputed parcel was on the Hoffmans’ side of a fence (“the historic fence”) that the Hoffmans believed divided their property from adjoining property when the Hoffmans bought their property in 1984. Scenic Ridge acquired the adjoining property in 2004 and removed the historic fence in 2010. According to surveys conducted in 2004 and 2006, the disputed parcel was part of Scenic Ridge’s property. The circuit court found that the Hoffmans became owners of the disputed parcel by adverse possession, ordered a forced sale of the disputed parcel to Scenic Ridge for $35,400, and dismissed the Hoffmans’ claims against all other persons and entities. The following issues are presented on appeal: (1) whether the Hoffmans’ adverse possession claim is barred by laches, equitable estoppel, or promissory estoppel; (2) whether the circuit court erroneously exercised its discretion by ordering a forced sale of the disputed parcel from the Hoffmans to Scenic Ridge; and (3) whether the court’s valuation of the disputed parcel was an erroneous exercise of its discretion. We affirm the court in all respects.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Lamar M. Robinson

Case No.: 2015AP2021-CR

Officials: Lundsten, Sherman and Blanchard, JJ.

Focus: Newly Discovered Evidence

Lamar Robinson appeals an order of the circuit court denying his motion for postconviction relief without an evidentiary hearing. Robinson contends that he is entitled to a new trial on the basis of newly discovered evidence and his trial counsel’s ineffectiveness. Robinson also contends that this court should exercise its discretion under WIS. STAT. § 752.35 (2015-16)1 and order a new trial in the interest of justice. We reject Robinson’s arguments and affirm.

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WI Court of Appeals – District IV

Case Name: Sheriff Gregory E. Herrick v. Clark County, et al

Case No.: 2016AP262

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

Focus: Injunctive Relief

Clark County Sheriff Gregory Herrick filed this civil lawsuit against Clark County, its County Board of Supervisors, and six individual County Board supervisors, after supervisors raised questions about the Sheriff’s ordering and planning to take delivery of six vehicles and his plans to sell other vehicles. In the amended complaint, the Sheriff sought injunctive and declaratory relief and alleged a federal civil rights claim and an equal protection claim, based on the Sheriff’s allegation that the supervisors have interfered, and will likely interfere again, with the Sheriff’s ability to carry out his duties as a sheriff under the Wisconsin Constitution. The circuit court denied the Sheriff’s requests for relief and dismissed the action on several grounds. For the reasons explained below, we affirm.

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WI Court of Appeals – District IV

Case Name: Dane County v. Judith Ann Walker

Case No.: 2016AP938

Officials: Kloppenburg, P.J.

Focus: Court Error – Motion to Open Judgment

Judith Ann Walker appeals the order of the circuit court denying her motion to open the judgment. Because Walker fails to develop any argument that the court erroneously exercised its discretion in denying her motion, I affirm.

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WI Supreme Court

WI Supreme Court

Case Name: Voces De La Frontera, Inc. and Christine Neuman Ortiz v. David A. Clarke, Jr.

Case No.: 2015AP1152

Focus: Public Records

I-247 Forms are statutorily exempt from disclosure according to Wisconsin public records law.

“Therefore, 8 C.F.R. § 236.6 protects all information contained within I-247 forms pertaining to detainees that are housed, maintained, or held in facilities run by state or private entities. Stated otherwise, the regulation is not temporally limited and does not apply only to those individuals in federal custody. Rather, 8 C.F.R. § 236.6 renders the I-247 forms that Voces seeks “record[s] . . . specifically exempted from disclosure by . . . federal law,” under Wis. Stat. § 19.36(1). For similar reasons, these records also contain information obtained for federal law enforcement investigative purposes, and Wis. Stat. § 19.36(2) prevents their disclosure.”

Reversed and Remanded

Concurred:

Dissented: BRADLEY, ABRAHAMSON

Not Participating: ZIEGLER

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WI Supreme Court

Case Name: State of Wisconsin v. Tabitha A. Scruggs

Case No.: 2014AP2981-CR

Focus:

Petitioner, Tabitha Scruggs (“Scruggs”), seeks review of a published court of appeals decision denying her motion for postconviction relief.1 The court of appeals determined that Scruggs failed to demonstrate beyond a reasonable doubt that imposing a now mandatory $250 DNA surcharge for a single felony conviction constitutes a punishment, violating the prohibition against ex post facto laws set forth in the United States and Wisconsin Constitutions.

Specifically, Scruggs contends that the imposition of this single $250 DNA surcharge is punitive for ex post facto purposes because it was discretionary when she committed the felony offense but mandatory when she was sentenced. She asserts that the statutory amendment making mandatory the imposition of the $250 DNA surcharge at sentencing constitutes an unconstitutional ex post facto law because it retroactively imposes punishment on those who committed a crime before the amendment’s January 1, 2014 effective date.

Like the court of appeals, we conclude that Scruggs has not met her burden of establishing beyond a reasonable doubt that the amended statute is unconstitutional. She has failed to show that the mandatory imposition of this DNA surcharge, which was discretionary at the time she committed the single felony offense, is punitive in either intent or effect and thus violative of the ex post facto prohibition. Accordingly, we affirm the decision of the court of appeals, denying Scruggs’ postconviction motion to vacate the $250 DNA surcharge.

Affirmed

Concurred:

Dissented: Abrahamson

Not Participating:

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US Supreme Court

United States Supreme Court

Case Name: Buck v. Davis

Case No.: 15-8049

Focus: Certificate of Appealability

5^th Circuit exceeded limited scope of certificate of appealability analysis

“The COA statute sets forth a two-step process: an initial determination whether a claim is reasonably debatable, and, if so, an ap peal in the normal course. 28 U. S. C. §2253. At the first stage, the only question is whether the applicant has shown that “jurists of reason could disagree with the district court’s resolution of his constitutional claims or . . . could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U. S. 322, 327. Here, the Fifth Circuit phrased its determination in proper terms. But it reached its conclusion only after essentially deciding the case on the merits, repeatedly faulting Buck for having failed to demonstrate extraordinary circumstances. The question for the Court of Appeals was not whether Buck had shown that his case is extraordinary; it was whether jurists of reason could debate that issue. The State points to the Fifth Circuit’s thorough consideration of the merits to defend that court’s approach, but this hurts rather than helps its case.

Dissenting: THOMAS; ALITO

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United States Supreme Court

Case Name: Life Technologies Corp, et al v. Promega Corp.

Case No.: 14-1538

Focus: Patent Infringement

The supply of a single component of a multicomponent invention for manufacture abroad does not give rise to Sec.271(f)(1) liability.

“Section 271(f)(1)’s phrase “substantial portion” refers to a quantitative measurement. Although the Patent Act itself does not define the term “substantial,” and the term’s ordinary meaning may refer either to qualitative importance or to quantitatively large size, the statutory context points to a quantitative meaning. Neighboring words “all” and “portion” convey a quantitative meaning, and nothing in the neighboring text points to a qualitative interpretation. Moreover, a qualitative reading would render the modifying phrase “of the components” unnecessary the first time it is used in §271(f)(1). Only the quantitative approach thus gives meaning to each statutory provision. Promega’s proffered “case-specific approach,” which would require a factfinder to decipher whether the components at issue are a “substantial portion” under either a qualitative or a quantitative test, is rejected. Tasking juries with interpreting the statute’s meaning on an ad hoc basis would only compound, not resolve, the statute’s ambiguity. And Promega’s proposal to adopt an analytical framework that accounts for both the components’ quantitative and qualitative aspects is likely to complicate rather than aid the factfinder’s review.”

Reversed and Remanded

Concurring: Alito, Thomas

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United States Supreme Court

Case Name: Fry v. Napoleon Community Schools, et al

Case No.: 15-497

Focus: Exhaustion of Administrative Remedies – IDEA

Exhaustion of the Individuals with Disabilities Education Act’s administrative procedures is unnecessary where the gravamen of the plaintiff’s suit is something other than the denial of the IDEA’s core guarantee of a free appropriate public education.

“The language of §1415(l) compels exhaustion when a plaintiff seeks “relief” that is “available” under the IDEA. Establishing the scope of §1415(l), then, requires identifying the circumstances in which the IDEA enables a person to obtain redress or access a benefit. That inquiry immediately reveals the primacy of a FAPE in the statutory scheme. The IDEA’s stated purpose and specific commands center on ensuring a FAPE for children with disabilities. And the IDEA’s administrative procedures test whether a school has met this obligation: Any decision by a hearing officer on a request for substantive relief “shall” be “based on a determination of whether the child received a free appropriate public education.” §1415(f)(3)(E)(i). Accordingly, §1415(l)’s exhaustion rule hinges on whether a lawsuit seeks relief for the denial of a FAPE. If a lawsuit charges such a denial, the plaintiff cannot escape §1415(l) merely by bringing the suit under a statute other than the IDEA. But if the remedy sought in a suit brought under a different statute is not for the denial of a FAPE, then exhaustion of the IDEA’s procedures is not required.”

Vacated and remanded

Concurring: Alito, Thomas

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