Weekly Case Digests — June 19 to June 23, 2017

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Rene A Lopez v. Jefferson B. Sessions III

Case No.: 17-1047

Officials: FLAUM, EASTERBROOK, and KANNE, Circuit Judges

Focus: Removal Proceedings

Rene Alonzo Lopez, a.k.a. Luis Fuentes Alonso, petitions for review of the denial of his appli‐ cation for withholding of removal. We dismiss the petition for lack of jurisdiction.

Petition Dismissed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Anthony J. Minney

Case No.: 16-4057

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

Focus: Execution of Search Warrant – Plain View Donctrine

Officers executed a search warrant at Anthony Minney’s apartment. The search warrant listed the items to be seized: a Panasonic television, a Sony televi‐ sion, a Nintendo Wii, an Xbox 360, and 10 Xbox video games. While searching Minney’s bedroom, Detective Wil‐ liam Vasquez found ammunition in the bedside table. When the officers questioned Minney, he admitted that he was on parole for dealing cocaine. Officers then arrested Minney for being a felon in possession of ammunition.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Duadalupe I. Meija, Jr.

Case No.: 16-3649

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

Focus: Sentencing – Sufficiency of Evidence

The issue in this appeal is whether the district court had a sufficient basis for imposing an above-guideline sentence on appellant Guadalupe Mejia, Jr., who pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The evidence and argument at Mejia’s sentencing hearing focused on a bar fight in which Mejia pulled a knife and either Mejia or another man pulled a gun and fired shots that struck a building and a vehicle. The conflicting factual accounts of the bar fight convinced the district judge to reject the probation officer’s recommendation to increase Mejia’s guideline offense level by four levels on the theory that he had “used or possessed” a gun “in connection with another felony offense” or else had “possessed or transferred” the weapon with “knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense.” See U.S.S.G. § 2K2.1(b)(6)(B). From the facts about the bar fight that could be found with confidence, however, as well as Mejia’s lengthy criminal history, the district judge concluded that no matter who fired the shots at the bar, an above-guideline sentence was appropriate. We affirm

Affirmed

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7^th Circuit Court of Appeals

Case Name: Cedric Dupree v. Marcus Hardy, et al

Case No.: 16-2212; 16-3515

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

Focus: Failure to Cooperate – Failure to Prosecute

We have consolidated for decision two cases in which the district judges and volunteer lawyers generously gave uncooperative plaintiffs every opportunity to pursue their claims. In both cases the plaintiffs responded with further failures to cooperate with orderly litigation. After showing more patience than necessary, the district judges dismissed both cases for failure to prosecute. We affirm both eminently reasonable decisions.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Kevin Reed

Case No.: 16-3428

Officials: WOOD, Chief Judge, and BAUER and HAMILTON, Circuit Judges

Focus: Sentencing Guidelines – Involuntary Plea

In the midst of his fraud trial, appellant Kevin Reed decided to plead guilty. He was sentenced within the applicable Sentencing Guideline range to sixty‐ four months in prison. In this appeal, he argues that his guilty plea was involuntary and that the sentencing judge failed to address his principal argument in mitigation, that a prison sentence would impose an extraordinary hardship on his family. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Herman Jackson et al

Case No.: 16-1995; 16-2113

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

Focus: Sufficiency of Evidence

A jury convicted Herman Jackson of two counts of mail fraud in violation of 18 U.S.C. § 1341 and nine counts of wire fraud in violation of 18 U.S.C. § 1343, as well as two counts of making a false statement in violation of 18 U.S.C. § 1001 for his role in the scheme. Jackson’s former

wife and codefendant, Janette Faria, was convicted of one count of mail fraud, six counts of wire fraud, and one count of making a false statement. Defendants-appellants timely appealed, raising several challenges, including to the sufficiency of the evidence. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Michael Driver et al v. Marion County Sheriff, et al

Case No.: 16-4239

Officials: WOOD, Chief Judge, and FLAUM and ROVNER, Circuit Judges

Focus: Court Error – Class Certification

The plaintiffs in this case brought a class action pursuant to 42 U.S.C. § 1983 alleging that the policies and practices of the Marion County Sheriff’s Department and the Consolidated City of Indianapolis and Marion County (collectively referred to as the “Sheriff”) caused them to be detained in the Marion County Jail awaiting release for an unreasonably long period of time, in violation of the Fourth Amendment. The plaintiffs sought to certify five subclasses in that action, and the district court granted certification as to two of those subclasses, but denied it as to the remaining three. The plaintiffs then filed a petition in this court seeking permission to appeal the denial of two of those class certifications pursuant to Federal Rule of Civil Procedure 23(f). Specifically, the plaintiffs contested the court’s denial of two classes, consisting of all individuals who, from December 19, 2012 to the present, were held in confinement by the Sheriff after legal authority for those detentions ceased, due to: (1) the Sheriff’s practice of operating under a standard of allowing up to 72 hours to release prisoners who are ordered released; and (2) the Sheriff’s practice of employing a computer system inadequate for the purposes intended with respect to the timely release of prisoners. We granted permission for the interlocutory appeal pursuant to Rule 23(f), and now proceed to the appeal on the merits. We hold that the district court erred in its decision denying class certification and remand the case to the district court for further proceedings

Vacated and remanded

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7^th Circuit Court of Appeals

Case Name: Marcela Herrera-Ramirez

Case No.: 16-4204

Officials: WOOD, Chief Judge, and MANION and HAMILTON, Circuit Judges.

Focus: Deportation – Removal – Lack of Jurisdiction

Maricela Herrera-Ramirez is fighting deportation from the United States. She is a citizen of Mexico, but she has been living in this country without the right to do so since she was six years old. She is married and has four U.S.-citizen children. She found herself facing removal after a

violent incident on December 30, 2011, in which she was involved with a drive-by shooting near a Milwaukee bar where she had been with her friends. State criminal proceedings followed, and in time she came to the attention of U.S. Immigration and Customs Service, known as ICE, which instituted removal proceedings against her. First an Immigration Judge (IJ) and then the Board of Immigration Appeals (BIA) found that her offense was a “particularly serious crime” for immigration purposes, and thus that she was ineligible for withholding of removal (the only possible relief). She has filed a petition for review from that determination, but we conclude we lack jurisdiction over it because there is no legal issue before us, and so we dismiss on that basis.

Petition Dismissed

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7^th Circuit Court of Appeals

Case Name: Otgonbaatar Tsegmed v. Jefferson B. Sessions III

Case No.: 16-1036

Officials: WOOD, Chief Judge, FLAUM, Circuit Judge, and CONLEY, District Judge

Focus: Asylum Application – Withholding of Removal

Otgonbaatar Tsegmed, a citizen of Mongolia, overstayed a nonimmigrant visa and has been living in the United States since 2004. He came to the attention of the Department of Homeland Security in 2008, after his second arrest for Driving Under the Influence in Illinois. The government placed him in removal proceedings. He conceded that he was removable, but he filed an application with the immigration court in July 2008 seeking asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The Immigration Judge (IJ) denied his application and ordered him removed to Mongolia; the Board of Immigration Appeals (BIA) affirmed. Tsegmed now challenges those decisions. Because we lack jurisdiction to review the denial of his asylum application, and the evidence does not compel the conclusion that he is eligible for withholding or relief under the CAT, we deny his petition for review.

Petition to review denied

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7^th Circuit Court of Appeals

Case Name: United States of America v. Randall Jennings

Case No.: 16-2861

Officials: WOOD, Chief Judge, and KANNE and ROVNER, Cir‐ cuit Judges

Focus: Sentencing – Sentencing Guidelines

Defendant Randall Jennings pleaded guilty to being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). At sentencing, the district court found that Jennings’ prior convictions in Minnesota for simple robbery and felony domestic assault constituted convictions for crimes of violence for purposes of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), and the parallel provision of the Sentencing Guidelines. Consequently, Jennings was subject to a 15-year statutory minimum prison term along with an enhanced Guidelines offense level and criminal history categorization. Jennings appeals, contending that neither simple robbery nor domestic assault, as Minnesota defines those crimes, qualify as a crime of violence. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Victor D. Jackson v. United States of America

Case No.: 16-2470

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

Focus: Ineffective Assistance of Counsel

In 2011, Petitioner Victor Jackson and codefendant Daniel Kelly were convicted of cocaine-related offenses. Jackson was convicted by a jury while Kelly pleaded guilty. Jackson was sentenced to 360 months’ imprisonment. He appealed his conviction and sentence; we affirmed his conviction but vacated his sentence, holding that he was entitled to be resentenced under the Fair Sentencing Act based on the Supreme Court’s holding in Dorsey v. United States, 567 U.S. 260, 264 (2012). See United States v. Jackson, 491 F. App’x 738, 739 (7th Cir. 2012). On remand, with a new sentencing Guidelines range of 262 to 327 months’ imprisonment, the district court sentenced Jackson to 200 months’ imprisonment. On January 31, 2014, Jackson filed a pro se 28 U.S.C. § 2255 petition, arguing that he received ineffective assistance of counsel on several grounds. Judge Michael McCuskey denied the petition and did not issue a certificate of appealability. Jackson v. United States, 2014 U.S. Dist. LEXIS 52283, at *26 (C.D. Ill. Apr. 16, 2014). But we granted a certificate on Jackson’s claim that prior counsel provided ineffective assistance by misinforming him that he would not be eligible for a Fair Sentencing Act (“FSA”) reduction if he pleaded guilty. Following the filing of his opening appellate brief, Jackson and the government filed a joint motion for summary reversal and remand for an evidentiary hearing on the question presented in the certificate of appealability. We granted the motion, summarily vacated the district court’s judgment, and remanded the case for an evidentiary hearing on the issue. On remand, the district court referred the case to a magistrate judge for an evidentiary hearing, which was held on December 11, 2015

Vacated and remanded

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7^th Circuit Court of Appeals

Case Name: Tracey Coleman v. Labor and Industry Review Commission of the State of Wisconsin

Case No.: 15-3254

Officials: WOOD, Chief Judge, and POSNER and WILLIAMS, Circuit Judges

Focus: Failure to State a Claim – Plaintiff Consent

Seeking to proceed without prepayment of fees, Tracey Coleman brought a pro se suit against the Labor and Industry Review Commission of the State of Wisconsin (Commission). At the same time as he submitted his affidavit of indigence, see 28 U.S.C. § 1915(a)(1), he filed a document indicating that he consented to have a magistrate judge decide the case. 28 U.S.C. § 636(c)(1). The magistrate judge dismissed the suit and entered a final judgment before the Commission was even served, and thus before it had any occasion either to consent to or to refuse the option of proceeding before the magistrate judge. Coleman appealed, and we recruited counsel to assist him. The question before us is whether a plaintiff’s consent alone can give a magistrate judge the necessary authority to resolve a case on the basis that the complaint fails to state a claim upon which relief can be granted, in a case that otherwise requires an Article III judge. We conclude that the answer is no: only consent by both (or all) parties will suffice, and so we must remand this case for further proceedings.

Vacated and remanded

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7^th Circuit Court of Appeals

Case Name: 16-2321; 16-2586

Case No.: 1000 Friends of Wisconsin Incorporated v. united States Department of Transportation, et al

Officials: EASTERBROOK and WILLIAMS, Circuit Judges, and FEINERMAN, District Judge.

Focus: Declaratory Relief – Lack of Justiciable Controversy

Because the State of Wisconsin proposed to use federal highway funds to widen Wisconsin Route 23 to four lanes between Fond du Lac and Sheboygan, the U.S. Department of Transportation (USDOT) issued an environmental impact statement evaluating the potential effects of the project. After USDOT made a “record of decision” permitting the use of federal funds, a group opposed to the project filed this suit under the Administrative Procedure Act and asked the district court to find the statement inadequate and enjoin the project. The court denied the request for an injunction—after all, Wisconsin can proceed using its own money whether or not a federal agency has satisfied the requirements for a federal contribution—but set aside the record of decision after concluding that the portion of the statement projecting traffic loads in 2035 had not adequately disclosed all assumptions and other ingredients of the traffic-forecasting model. 2015 U.S. Dist. LEXIS 67176 (E.D. Wis. May 22, 2015). USDOT then issued a revised environmental impact statement with additional details about how the traffic estimates had been generated. The district court concluded, however, that even as revised the information remains inadequate and reiterated the order vacating USDOT’s record of decision. 2016 U.S. Dist. LEXIS 57413 (E.D. Wis. Apr. 29, 2016). The judge stated that plaintiff is entitled to a declaratory judgment but neglected to issue one. We do not see what sort of declaratory relief would be appropriate, however, for the central question in the case was resolved by the order setting aside the record of decision. That order is a final decision appealable under 28 U.S.C. §1291, and it has been appealed.

Appeals Dismissed

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Omar Quinton Triggs

Case No.: 2015AP2533-CR

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

Focus: Miranda Warnings

Omar Quinton Triggs appeals a judgment of conviction, following a guilty plea, of possessing more than 200 grams, but less than 1000 grams, of marijuana with the intent to deliver. Triggs contends that the circuit court erroneously denied his motion to suppress evidence because he was unlawfully detained without receiving Miranda warnings and did not voluntarily consent to a search of the area containing the contraband. We agree and reverse the circuit court

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Waylon D. Jones

Case No.: 2016AP278-CR

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

Focus: Ineffective Assistance of Counsel

Waylon Jones appeals a judgment convicting him of second-degree sexual assault by use of force; battery; disorderly conduct; misdemeanor bail jumping; and taking a vehicle without the owner’s consent; the first three counts with domestic abuse modifiers and all five counts as a repeater. Jones also appeals the orders denying his motion and supplemental motion for postconviction relief. Jones argues he is entitled to a new trial based on the ineffective assistance of his trial counsel and newly discovered evidence. We reject Jones’s arguments and affirm the judgment and orders

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Efrain Campos

Case No.: 2016AP780; 2016AP781

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

Focus: Plea Withdrawal

Efrain Campos, pro se, appeals the denial of his WIS. STAT. § 974.06 (2015-16) motion for postconviction relief. Campos argues that he should be allowed to withdraw his guilty pleas—which he entered in 1999—based on “newly discovered evidence” that rendered his pleas “not intelligently” made. (Capitalization, bolding, and one set of quotation marks omitted.) In the alternative, he argues that he is entitled to sentence modification based on that evidence. We reject his arguments and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Joseph Allen

Case No.: 2016AP885-CR

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

Focus: Sentencing – Prosecutorial Misconduct

Ron Joseph Allen appeals a judgment of conviction, following a jury trial, of first-degree intentional homicide as a party to a crime. He also appeals the order denying his postconviction motion. We affirm

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WI Court of Appeals – District I

Case Name: Antrice Hart v. Artisan and Truckers Casualty Company, et al

Case No.: 2016AP1196

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

Focus: Inadmissible Evidence

Antrice Hart appeals from an order that granted summary judgment to Esvin Gomez and his insurer Artisan and Truckers Casualty Company (Artisan) and dismissed her complaint. This is a personal injury case that arises from a car accident Gomez caused on August 1, 2014, in which Hart was injured. The circuit court based its order on the full release of claims Hart signed on the day of the accident Hart argues that the full release of claims she signed is inadmissible evidence because WIS. STAT. § 904.12(1) (2015-16),  by its plain language, prohibits the admission of any “statement made or writing signed by the injured person within 72 hours of the time the injury happened[.]” We disagree and affirm

Recommended for publication

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WI Court of Appeals – District III

Case Name: Richard Forshee et al v. Lee Neuschwander, et al

Case No.: 2016AP1608

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

Focus: Restrictive Covenant Violation

Lee and Mary Jo Neuschwander appeal an order denying their summary judgment motion and instead granting summary judgment in favor of their neighbors, Richard and Jean Forshee, Judith Timmerman, Verlan Edwards, Mary Edwards on behalf of Verlan & Mary Edwards LLP, and Robert and Janet Olson (collectively, the Neighbors). The Neighbors argued that, by renting their property to others on a short-term basis, the Neuschwanders violated a restrictive covenant prohibiting “commercial activity” on the Neuschwanders’ lot. The circuit court agreed that short-term rentals violated the restrictive covenant. At the Neighbors’ request, the court issued an injunction prohibiting the Neuschwanders from renting their property on a short-term basis, except during the weekend of the American Birkebeiner cross country ski race. We conclude the restrictive covenant is ambiguous as to whether short-term rentals of the Neuschwanders’ property are prohibited. Because restrictive covenants must be clear and unambiguous in order to be enforced, the circuit court erred by concluding the Neuschwanders’ short-term rentals violated the restrictive covenant. We therefore reverse the order granting summary judgment to the Neighbors and enjoining the Neuschwanders from renting their property on a short-term basis. We remand with directions that the circuit court enter summary judgment in favor of the Neuschwanders

Recommended for publication

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WI Court of Appeals – District I

Case Name: 2017AP558; 2017AP559

Case No.: State of Wisconsin v. F.J.R.

Officials: Brash, J.

Focus: Termination of Parental Rights

F.J.R. appeals an order terminating her parental rights for two of her biological children, B.M.R. and B.H.T. She argues that the trial court did not appropriately instruct the jury regarding the suspension of a visitation order issued by the court with regard to B.M.R., and seeks to vacate the termination of parental rights order for both children. We affirm.

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WI Court of Appeals – District I

Case Name: JP Morgan Chase Bank National Association v. Margaret Bach, et al

Case No.: 2014AP2781

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

Focus: Foreclosure – Promissory Estoppel

This case arises out of a mortgage foreclosure action brought by JP Morgan Chase Bank National Association against Margaret Bach. Bach responded to this action with counterclaims including breach of contract, promissory estoppel, and violation of the Fair Debt Collection Practices Act (FDCPA). The circuit court granted her counterclaim for promissory estoppel, but denied her breach of contract, FDCPA, and other claims. On appeal, Bach raises multiple challenges to the circuit court’s decision. We affirm

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WI Court of Appeals – District II

Case Name: Anna Marie Carter v. Patrick Lee Haley

Case No.: 2015P2335

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

Focus: Frivolous Appeal – Attorney Fees

This cases arises from the reopening of a divorce judgment. In addition to their Marital Settlement Agreement (MSA) dividing their marital assets, Patrick Haley and his former wife, Anna Carter f/k/a Anna Haley, negotiated a Supplemental Business Agreement (SBA) as a means to divide the assets and ownership of their jointly owned marital business. Patrick appeals the order denying his motion to reconsider the circuit court’s decision in regard to the SBA and a patent awarded to him. Anna alleges a frivolous appeal and requests costs and attorneys’ fees pursuant to WIS. STAT. RULE 809.25(3) (2015-16).1 We affirm the order and deny the motion for costs and fees.

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WI Court of Appeals – District II

Case Name: State of Wisconsinv. Cynthia A. Hansen

Case No.: 2016AP2114-CR

Officials: Gundrum, J.

Focus: Sufficiency of Plea

Cynthia Hansen appeals from a judgment of conviction for criminal damage to property of another, in violation of WIS. STAT. § 943.01(1), entered upon her guilty plea and the denial of her postconviction motion. She contends her conviction in this case should be dismissed or her plea should be vacated because “the record” of her guilty plea fails to demonstrate she was “aware of the essential elements of the crime of criminal damage to marital property.” She further asserts there was an insufficient factual basis for her plea. We disagree with her on both fronts and affirm.

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WI Court of Appeals – District II

Case Name: City of Sheboygan v. John W. Van Akkeren

Case No.: 2017AP120

Officials: Gundrum, J.

Focus: OWI – Probable Cause

John W. Van Akkeren appeals his conviction for operating a motor vehicle while intoxicated and the circuit court’s finding that he improperly refused a request to provide a chemical sample of his blood. Van Akkeren’s sole argument on appeal is that the arresting officer did not have “probable cause to believe” he was operating while intoxicated, as required to justify a request that he submit to a preliminary breath test (PBT). Because we conclude the officer did have “probable cause to believe,” we affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Jesse t. Riemer

Case No.: 2016AP398

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

Focus: Due Process Violation – Military Law

At a general court-martial under the Wisconsin Code of Military Justice, WIS. STAT. ch. 322 (2015-2016), Sergeant First Class Jesse Riemer of the Wisconsin Army National Guard was convicted, pursuant to negotiated pleas made before a military judge, of various felony offenses involving Riemer’s use of “his position as a [military] recruiter to engage in wrongful conduct with recruits and enlisted members of the [Wisconsin Army National Guard].” 1 Riemer was sentenced to thirty days’ confinement and a badconduct discharge. The adjutant general approved the conviction and sentence. Riemer appealed to this court pursuant to WIS. STAT. § 322.0675. That statute provides that convictions by a general court-martial are appealed “to the Wisconsin court of appeals, District IV and, if necessary, to the Wisconsin Supreme Court.” Riemer challenges the sentence imposed by the military judge, arguing that the military judge erred in four respects: (1) the judge misused his discretion by imposing an unduly harsh and unreasonable sentence; (2) the judge’s statements during sentencing evidenced objective bias in violation of Riemer’s right to due process; (3) the judge violated Riemer’s right to due process by failing to fully consider all of the evidence presented to him at sentencing; and (4) the judge violated Riemer’s right to due process by assuming facts not supported by evidence available to the judge at sentencing.

Riemer argues that we should review his first issue—sentencing discretion—as would a military appellate court. That is, Riemer asserts that we should accord no deference to the sentencing judge and, rather, independently determine whether the sentence was appropriate. We reject that argument and apply the same deferential review we normally apply to sentencing. As to the remaining three issues, Riemer nominally asserts that we should review them as would a military appellate court, but Riemer does not suggest that such review differs from how we would normally review these due process issues. Indeed, Riemer directs us to Wisconsin due process case law on all three issues. If Wisconsin law differs from military law, or federal law generally, on these topics, the parties have not brought those differences to our attention. Accordingly, we follow the parties’ lead and apply Wisconsin due process law to the last three issues. If there is an argument that our review of any of these three issues should be based on federal law, we leave that question for another day. Applying our normal deferential standard of review, we conclude that the judge did not misuse his discretion. Looking to Wisconsin due process law, in keeping with the parties’ arguments, we reject Riemer’s remaining three due process arguments. Therefore, we affirm.

Recommended for Publication

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WI Court of Appeals – District IV

Case Name: County of Lafayette

Case No.: 2016AP1579

Officials: Sherman, J.

Focus: Waiver of Fees

Ian Humphrey, pro se, appeals an order denying his petition for waiver of the transcript fees. For the reasons discussed below, I affirm.

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WI Court of Appeals – District IV

Case Name: Thomas R. Newman v. William C. Kotlow et al

Case No.: 2016AP1913

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

Focus: Court Error – Failure to State A Claim

Thomas Newman appeals the circuit court’s order dismissing his complaint with prejudice. Newman argues on appeal that the circuit court erred when it construed the complaint as failing to state a claim upon which relief could be granted, and that the court applied incorrect legal standards. Newman further argues that the circuit court erroneously exercised its discretion in dismissing the complaint with prejudice. For the reasons set forth below, we affirm the order of the circuit court.

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WI Court of Appeals – District IV

Case Name: Marquette County v. Matthew J. Owens

Case No.: 2016AP2176

Officials: Lundsten, J.

Focus: OWI – Traffic Stop Legality

Matthew Owens appeals the circuit court’s judgment convicting Owens of operating a motor vehicle while under the influence of an intoxicant. Owens challenges the legality of a traffic stop that led to evidence of his intoxication. For the reasons below, I reject Owens’ arguments and affirm.

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WI Supreme Court Digests

WI Supreme Court

Case Name: State of Wisconsin v. Edward J. Zimbal

Case No.: 2017 WI 59

Focus: Court Error – Judge Substitution

Petitioner, Edward J. Zimbal (“Zimbal”), seeks review of an unpublished court of appeals opinion affirming a circuit court order denying his postconviction motion. The court of appeals determined that Zimbal did not timely invoke his right to substitution of a circuit court judge. It reasoned that his request fell outside of the statutory 20 day time limit that begins to run on the date of the court of appeal’s remittitur following a prior successful appeal in this case. Zimbal asserts that the court of appeals erred, contending that his substitution request was timely because: (1) prior to having an attorney appointed he made an oral request for substitution in the circuit court and a written request in the court of appeals; (2) the circuit court instructed him that the filing of a motion for substitution should be deferred until after an attorney was appointed; and (3) his trial counsel formalized the substitution request 17 days after being appointed. We conclude that under the unique circumstances presented here, when a defendant follows a circuit court’s instruction to defer filing a request for substitution of a judge until after counsel is appointed, that strict compliance with the 20 day deadline for filing a request for substitution after remittitur is not warranted. Although Zimbal’s motion for substitution of judge was not timely filed under the statute, it was timely filed in this case because the circuit court in essence extended the deadline until after his trial counsel was appointed. Zimbal complied with the extended deadline when he filed a motion for substitution of judge within 20 days after

his trial counsel was appointed. Accordingly, we reverse the decision of the court of appeals and remand to the circuit court to vacate the judgments of conviction and for a new trial.

Reversed and remanded

Concur: Roggensack, Bradley, Kelly, Ziegler

Dissent:

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WI Supreme Court

Case Name: State of Wisconsinv. Robert JosephStietz

Case No.: 2017 WI 58

Focus: Sufficiency of Evidence – Jury Instruction

Following a three-day trial, a jury convicted Robert Stietz, the defendant, of resisting a law enforcement officer, Wis. Stat. § 946.41(1) (2013-14), and intentionally pointing a firearm at an officer, § 941.20(1m)(b). On appeal, the court of appeals rejected the defendant’s argument that his constitutional right to present a defense was denied by the circuit court’s refusal to instruct the jury on self-defense. The court of appeals affirmed the judgment of conviction. The dispositive issue presented is whether the circuit court erred when it refused to instruct the jury on self-defense as the defendant requested. The dispute in the instant case regarding the self-defense instruction centers on whether the defense of self-defense is supported by sufficient evidence. State v. Head, 2002 WI 99, ¶113, 255 Wis. 2d 194, 648 N.W.2d 413. On viewing the record in the light most favorable to the defendant, as we must, we conclude, contrary to the State’s position, that there was adequate evidence supporting a selfdefense instruction in the instant case and that the circuit court erred in refusing the defendant’s request for the instruction.

Reversed and Remanded

Concur: Bradley, Roggensack, Kelly

Dissent: Ziegler, Gablemen

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Supreme Court Digests

United States Supreme Court

Case Name: Town of Chester, New York v. Laroe Estates, Inc.

Case No.: 16-605

Focus: Intervenor

A litigant seeking to intervene as of right under Rule 24(a)(2) must meet the requirements of Article III standing if the intervenor wishes to pursue relief not requested by a plaintiff.

“To establish Article III standing, a plaintiff seeking compensatory relief must have “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 578 U. S. ___, ___. The “ plaintiff must demonstrate standing for each claim he seeks to press and for each form of relief that is sought.” Davis v. Federal Election Comm’n, 554 U. S. 724, 734 (internal quotation marks omitted). The same principle applies when there are multiple plaintiffs: At least one plaintiff must have standing to seek each form of relief requested in the complaint. That principle also applies to intervenors of right: For all relief sought, there must be a litigant with standing, whether that litigant joins the lawsuit as a plaintiff, a coplaintiff, or an intervenor of right. Thus, at the least, an intervenor of right must demonstrate Article III standing when it seeks additional relief beyond that requested by the plaintiff. That includes cases in which both the plaintiff and the intervenor seek separate money judgments in their own names.”

Vacated and remanded

Dissenting:

Concurring:

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United States Supreme Court

Case Name: Honeycutt v. United States

Case No.: 16-142

Focus: Forfeiture – Ownership Interest

Because forfeiture pursuant to §853(a)(1) is limited to property the defendant himself actually acquired as the result of the crime, that provision does not permit forfeiture with regard to Terry Honeycutt, who had no ownership interest in his brother’s store and did not personally benefit from the illegal sales.

“Section 853(a) limits forfeiture to property flowing from, §853(a)(1), or used in, §853(a)(2), the crime itself—providing the first clue that the statute does not countenance joint and several liability, which would require forfeiture of untainted property. It also defines forfeitable property solely in terms of personal possession or use. Section 853(a)(1), the provision at issue, limits forfeiture to property the defendant “obtained, directly or indirectly, as the result of” the crime. Neither the dictionary definition nor the common usage of the word “obtain” supports the conclusion that an individual “obtains” property that was acquired by someone else. And the adverbs “directly” and “indirectly” refer to how a defendant obtains the property; they do not negate the requirement that he obtain it at all. Sections 853(a)(2) and 853(a)(3) are in accord with this reading”

Reversed

Dissenting:

Concurring:

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United States Supreme Court

Case Name: Kokesh v. Securities and Exchange Commission

Case No.: 16-529

Focus: Disgorgement

Because SEC disgorgement operates as a penalty under §2462, any claim for disgorgement in an SEC enforcement action must be commenced within five years of the date the claim accrued

“The definition of “penalty” as a “punishment, whether corporal or pecuniary, imposed and enforced by the State, for a crime or offen[s]e against its laws,” Huntington v. Attrill, 146 U. S. 657, 667, gives rise to two principles. First, whether a sanction represents a penalty turns in part on “whether the wrong sought to be redressed is a wrong to the public, or a wrong to the individual.” Id., at 668. Second, a pecuniary sanction operates as a penalty if it is sought “for the purpose of punishment, and to deter others from offending in like manner” rather than to compensate victims. Ibid. This Court has applied these principles in construing the term “penalty,” holding, e.g., that a statute providing a compensatory remedy for a private wrong did not impose a “penalty,” Brady v. Daly, 175 U. S. 148, 154”

Reversed

Dissenting:

Concurring:

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United States Supreme Court

Case Name: Advocate Health Care Network, et al v. Stapleton, et al

Case No.: 16-74

Focus: ERISA – Church Plan

A plan maintained by a principal-purpose organization qualifies as a “church plan,” regardless of who established it.

“The term “church plan” initially “mean[t]” only “a plan established and maintained . . . by a church.” But subparagraph (C)(i) provides that the original definitional phrase will now “include” another—“a plan maintained by [a principal-purpose] organization.” That use of the word “include” is not literal, but tells readers that a different type of plan should receive the same treatment (i.e., an exemption) as the type described in the old definition. In other words, because Congress deemed the category of plans “established and maintained by a church” to “include” plans “maintained by” principalpurpose organizations, those plans—and all those plans—are exempt from ERISA’s requirements. Had Congress wanted, as the employees contend, to alter only the maintenance requirement, it could have provided in subparagraph (C)(i) that “a plan maintained by a church includes a plan maintained by” a principal-purpose organization—removing “established and” from the first part of the sentence. But Congress did not adopt that ready alternative. Instead, it added language whose most natural reading is to enable a plan “maintained” by a principal-purpose organization to substitute for a plan both “established” and “maintained” by a church. And as a corollary to that point, the employees’ construction runs aground on the so-called surplusage canon—the presumption that each word Congress uses is there for a reason. The employees read subparagraph (C)(i) as if it were missing the two words “established and.” This Court, however, “give[s] effect, if possible, to every clause and word of a statute.” Williams v. Taylor, 529 U. S. 362, 404.”

Reversed

Dissenting:

Concurring: Sotomayor

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United States Supreme Court

Case Name: North Carolina, et al v. Sandra Little Covington, et al

Case No.: 16-1023

Focus: Legislative Districts – Gerrymandering – Constitutionality

The North Carolina General Assembly redrew state legislative districts in 2011 to account for population changes revealed by the 2010 census. In May 2015, several registered North Carolina voters (here called plaintiffs) brought this action in the U. S. District Court for the Middle District of North Carolina, alleging that 28 majorityblack districts in the new plan were unconstitutional racial gerrymanders. The District Court ruled for the plaintiffs in August 2016, holding that race was the predominant factor in the design of each challenged district, and that in none was that use of race “supported by a strong basis in evidence and narrowly tailored to comply with [the Voting Rights Act].” 316 F. R. D. 117, 176 (MDNC 2016).* The court declined to require changes in time for the then-impending November 2016 election, but ordered the General Assembly to redraw the map before North Carolina holds any future elections for that body. See App. to Juris. Statement

Vacated

Dissenting:

Concurring:

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United States Supreme Court

Case Name: Sandoz Inc. v. Amgen Inc., et al

Case No.: 15-1039

Focus: Proper Injunction – Patent Infringement

Section 262(l)(2)(A) is not enforceable by injunction under federal law, but the Federal Circuit on remand should determine whether a state-law injunction is available. An applicant may provide notice under §262(l)(8)(A) prior to obtaining licensure.

“Section 262(l)(2)(A)’s requirement that an applicant provide the sponsor with its application and manufacturing information is not enforceable by an injunction under federal law. The Federal Circuit reached the proper result on this point, but its reasoning was flawed. It cited §271(e)(4), which expressly provides the “only remedies” for an act of artificial infringement. In light of this language, the court reasoned that no remedy other than those specified in the text—such as an injunction to compel the applicant to provide its application and manufacturing information—was available. The problem with this reasoning is that Sandoz’s failure to disclose was not an act of artificial infringement remediable under §271(e)(4). Submitting an application constitutes an act of artificial infringement; failing to disclose the application and manufacturing information required by §262(l)(2)(A) does not. Another provision, §262(l)(9)(C), provides a remedy for an applicant’s failure to turn over its application and manufacturing information. It authorizes the sponsor, but not the applicant, to bring an immediate declaratory-judgment action for artificial infringement, thus vesting in the sponsor the control that the applicant would otherwise have exercised over the scope and timing of the patent litigation and depriving the applicant of the certainty it could have obtained by bringing a declaratory-judgment action prior to marketing its product. The presence of this remedy, coupled with the absence of any other textually specified remedies, indicates that Congress did not intend sponsors to have access to injunctive relief, at least as a matter of federal law, to enforce the disclosure requirement. See Great-West Life & Annuity Ins. Co. v. Knudson, 534 U. S. 204, 209. Statutory context further confirms that Congress did not authorize courts to enforce §262(l)(2)(A) by injunction.”

Vacated in part reversed in part and remanded

Dissenting:

Concurring: Breyer

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United States Supreme Court

Case Name: Microsoft Corp. v. Baker, et al

Case No.: 15-457

Focus: Jurisdiction – Class Certification Review

Federal courts of appeals lack jurisdiction under §1291 to review an order denying class certification (or, as here, an order striking class allegations) after the named plaintiffs have voluntarily dismissed their claims with prejudice

Section 1291’s final-judgment rule preserves the proper balance between trial and appellate courts, minimizes the harassment and delay that would result from repeated interlocutory appeals, and promotes the efficient administration of justice. This Court has resisted efforts to stretch §1291 to permit appeals of right that would erode the finality principle and disserve its objectives. See, e.g., Mohawk Industries, Inc. v. Carpenter, 558 U. S. 100, 112. Attempts to secure appeal as of right from adverse class certification orders fit that bill.

Reversed and remanded

Dissenting:

Concurring: Thomas, Roberts, Alito

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United States Supreme Court

Case Name: Attorney General Sessions v. Morales-Santana

Case No.: 15-1191

Focus: Equal Protection – Standing

The gender line Congress drew is incompatible with the Fifth Amendment’s requirement that the Government accord to all persons “the equal protection of the laws.”

“Morales-Santana satisfies the requirements for third-party standing in seeking to vindicate his father’s right to equal protection. José Morales’ ability to pass citizenship to his son easily satisfies the requirement that the third party have a “ ‘close’ relationship with the person who possesses the right.” Kowalski v. Tesmer, 543 U. S. 125, 130. And José’s death many years before the current controversy arose is “a ‘hindrance’ to [José’s] ability to protect his own interests.” Ibid”

Affirmed in part, reversed and remanded in part

Dissenting:

Concurring: Thomas, Alito

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United States Supreme Court

Case Name: Henson, et al v. Santander Consumer USA, Inc.

Case No.: 16-349

Focus: Statutory Interpretation

A company may collect debts that it purchased for its own account, like Santander did here, without triggering the statutory definition in dispute.

By defining debt collectors to include those who regularly seek to collect debts “owed . . . another,” the statute’s plain language seems to focus on third party collection agents regularly collecting for a debt owner—not on a debt owner seeking to collect debts for itself. Petitioners’ arguments to the contrary do not dislodge the statute’s plain meaning. Petitioners point out that the word “owed” is the past participle of the verb “to owe,” and so suggest that the debt collector definition must exclude loan originators (who never seek to collect debts previously owed someone else) but embrace debt purchasers like Santander (who necessarily do). But past participles like “owed” are routinely used as adjectives to describe the present state of a thing. Congress also used the word “owed” to refer to present debt relationships in neighboring provisions of the Act, and petitioners have not rebutted the presumption that identical words in the same statute carry the same meaning. Neither would reading the word “owed” to refer to present debt relationships render any of the Act’s provisions surplusage, contrary to what petitioners suggest. Petitioners also contend that their interpretation best furthers the Act’s perceived purposes because, they primarily argue, if Congress had been aware of defaulted debt purchasers like Santander it would have treated them like traditional debt collectors because they pose similar risks of abusive collection practices. But it is not this Court’s job to rewrite a constitutionally valid text under the banner of speculation about what Congress might have done had it faced a question that, on everyone’s account, it never faced. And neither are petitioners’ policy arguments unassailable, as reasonable legislators might contend both ways on the question of how defaulted debt purchasers should be treated. This fact suggests for certain but one thing: that these are matters for Congress, not this Court, to resolve.

Affirmed

Dissenting:

Concurring:

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United States Supreme Court

Case Name: Virginia, et al v. Dennis LeBlanc

Case No.: 16-1177

Focus: Court Error – Habeas Corpus Relief

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a state prisoner is eligible for federal habeas relief if the underlying state court merits ruling was “contrary to, or involved an unreasonable application of, clearly established Federal law” as determined by this Court. 28 U. S. C. §2254(d)(1). In this case, the Court of Appeals for the Fourth Circuit held that this demanding standard was met by a Virginia court’s application of Graham v. Florida, 560 U. S. 48 (2010). The question presented is whether the Court of Appeals erred in concluding that the state court’s ruling involved an unreasonable application of this Court’s holding.

Petition Granted

Dissenting:

Concurring: Ginsburg

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United States Supreme Court

Case Name: Packingham v. North Carolina

Case No.: 15-1194

Focus: 1^st Amendment Violation

The North Carolina statute impermissibly restricts lawful speech in violation of the First Amendment

A fundamental First Amendment principle is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more. Today, one of the most important places to exchange views is cyberspace, particularly social media, which offers “relatively unlimited, low-cost capacity for communication of all kinds,” Reno v. American Civil Liberties Union, 521 U. S. 844, 870, to users engaged in a wide array of protected First Amendment activity on any number of diverse topics. The Internet’s forces and directions are so new, so protean, and so far reaching that courts must be conscious that what they say today may be obsolete tomorrow. Here, in one of the first cases the Court has taken to address the relationship between the First Amendment and the modern Internet, the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.

Reversed and remanded

Dissenting:

Concurring: Alito, Roberts, Thomas

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United States Supreme Court

Case Name: Ziglar v. Abbasi, et al

Case No.: 15-1358

Focus: Bivens – 5^th Amendment Violation

In the immediate aftermath of the September 11 terrorist attacks, the Federal Government ordered hundreds of illegal aliens to be taken into custody and held pending a determination whether a particular detainee had connections to terrorism. Respondents, six men of Arab or South Asian descent, were detained for periods of three to six months in a federal facility in Brooklyn. After their release, they were removed from the United States. They then filed this putative class action against petitioners, two groups of federal officials. The first group consisted of former Attorney General John Ashcroft, former Federal Bureau of Investigation Director Robert Mueller, and former Immigration and Naturalization Service Commissioner James Ziglar (Executive Officials). The second group consisted of the facility’s warden and assistant warden Dennis Hasty and James Sherman (Wardens). Respondents sought damages for constitutional violations under the implied cause of action theory adopted in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, alleging that petitioners detained them in harsh pretrial conditions for a punitive purpose, in violation of the Fifth Amendment; that petitioners did so because of their actual or apparent race, religion, or national origin, in violation of the Fifth Amendment; that the Wardens subjected them to punitive strip searches, in violation of the Fourth and Fifth Amendments; and that the Wardens knowingly allowed the guards to abuse them, in violation of the Fifth Amendment. Respondents also brought a claim under 42 U. S. C. §1985(3), which forbids certain conspiracies to violate equal protection rights. The District Court dismissed the claims against the Executive Officials but allowed the claims against the Wardens to go forward. The Second Circuit affirmed in most respects as to the Wardens but reversed as to the Executive Officials, reinstating respondents’ claims

Reversed in part and vacated and remanded in part

Dissenting:

Concurring:

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United States Supreme Court

Case Name: McWilliams v. Dunn, et all

Case No.: 16-5294

Focus: Expert Examination

Ake clearly established that when certain threshold criteria are met, the state must provide a defendant with access to a mental health expert who is sufficiently available to the defense and independent from the prosecution to effectively “conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” 470 U. S., at 83. The Alabama courts’ determination that McWilliams received all the assistance to which Ake entitled him was contrary to, or an unreasonable application of, clearly established federal law

“Three preliminary issues require resolution. First, the conditions that trigger Ake’s application are present. McWilliams is and was an “indigent defendant,” 470 U. S., at 70, and his “mental condition” was both “relevant to . . . the punishment he might suffer,” id., at 80, and “seriously in question,” id., at 70. Second, this Court rejects Alabama’s claim the State was relieved of its Ake obligations because McWilliams received brief assistance from a volunteer psychologist at the University of Alabama. Even if the episodic help of an outside volunteer could satisfy Ake, the State does not refer to any specific record facts that indicate that the volunteer psychologist was available to the defense at the judicial sentencing proceeding. Third, contrary to Alabama’s suggestion, the record indicates that McWilliams did not get all the mental health assistance that he requested. Rather, he asked for additional help at the judicial sentencing hearing, but was rebuffed.”

Reversed and remanded

Dissenting: Alito, Roberts, Thomas, Gorsuch

Concurring:

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United States Supreme Court

Case Name: Matal v. Tam

Case No.: 15-1293

Focus: 1^st Amendment – Disparagement Clause – Government Speech

Simon Tam, lead singer of the rock group “The Slants,” chose this moniker in order to “reclaim” the term and drain its denigrating force as a derogatory term for Asian persons. Tam sought federal registration of the mark “THE SLANTS.” The Patent and Trademark Office (PTO) denied the application under a Lanham Act provision prohibiting the registration of trademarks that may “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead.” 15 U. S. C. §1052(a). Tam contested the denial of registration through the administrative appeals process, to no avail. He then took the case to federal court, where the en banc Federal Circuit ultimately found the disparagement clause facially unconstitutional under the First Amendment’s Free Speech Clause.

Affirmed

Dissenting: Kennedy, Ginsburg, Sotomayor, Kagan, Thomas

Concurring:

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United States Supreme Court

Case Name: Bristol-Myers Squibb Co. v. Superior Court of California, et al

Case No.: 16-466

Focus: Jurisdiction

California courts lack specific jurisdiction to entertain the nonresidents’ claims.

“The personal jurisdiction of state courts is “subject to review for compatibility with the Fourteenth Amendment’s Due Process Clause.” Goodyear Dunlop Tires Operations, S. A. v. Brown, 564 U. S. 915, 918. This Court’s decisions have recognized two types of personal jurisdiction: general and specific. For general jurisdiction, the “paradigm forum” is an “individual’s domicile,” or, for corporations, “an equivalent place, one in which the corporation is fairly regarded as at home.” Id., at 924. Specific jurisdiction, however, requires “the suit” to “aris[e] out of or relat[e] to the defendant’s contacts with the forum.” Daimler, supra, at ___ (internal quotation marks omitted). The “primary concern” in assessing personal jurisdiction is “the burden on the defendant.” World-Wide Volkswagen Corp. v. Woodson, 444 U. S. 286, 292. Assessing this burden obviously requires a court to consider the practical problems resulting from litigating in the forum, but it also encompasses the more abstract matter of submitting to the coercive power of a State that may have little legitimate interest in the claims in question. At times, “the Due Process Clause, acting as an instrument of interstate federalism, may . . . divest the State of its power to render a valid judgment.” Id., at 294”

Reversed and remanded

Dissenting: Sotomayor

Concurring:

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