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Weekly Case Digests — Jan. 29 – Feb. 2, 2018

By: WISCONSIN LAW JOURNAL STAFF//February 2, 2018//

Weekly Case Digests — Jan. 29 – Feb. 2, 2018

By: WISCONSIN LAW JOURNAL STAFF//February 2, 2018//

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7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Ayesha Khan v. Midwestern University

Case No.: 17-1055

Officials: BAUER, KANNE, and ROVNER, Circuit Judges

Focus: Rehabilitation Act Violation

Ayesha Khan struggled academically in medical school from the outset. She failed three of her courses in her first year of medical school at The Chicago College of Osteopathic Medicine at Midwestern University. Ordinarily, under the school policy, this would permit the school administrators to dismiss her from the program. They opted not to do so. Instead, they gave Khan a second opportunity to prove herself able to satisfactorily complete the program. She was able to pass the classes on her second try the following year, but she continued to fail new classes in the second year (Block II) of her medical school curriculum. This time, however, she was pregnant and after being expelled, she sued the University, claiming that it had violated the Rehabilitation Act by failing to accommodate her pregnancy-related disabilities. The University filed a motion for summary judgment arguing that even if all the facts she alleged were true, she was not otherwise qualified for the medical school program.

Affirmed

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7th Circuit Court of Appeals

Case Name: Ruben Sanchez v. City of Chicago, et al.

Case No.: 16-3546

Officials: RIPPLE, MANION, AND SYKES, Circuit Judges.

Focus: Evidentiary Errors and Jury Instructions

Ruben Sanchez appeals the denial of his motion for a new trial in his § 1983 action against Officer Louis Garcia of the Chicago Police Department. Sanchez alleges that the trial court made multiple evidentiary errors, gave an improper jury instruction, and wrongfully accepted a partial verdict. Because we conclude that a new trial is not required, we affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Diana J. Gumila

Case No.: 16-3111

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

Focus: Court Error – Sentencing Guidelines

Diana Gumila ran a home-healthcare company that defrauded the federal government of several million dollars. She was convicted of multiple counts of healthcare fraud and making false statements in connection with a healthcare matter. The district judge imposed a below-guidelines prison sentence of 72 months followed by 24 months of supervised release.

Gumila appeals, raising several challenges to her sentence. She first argues that the judge miscalculated the financial loss attributable to her offenses. She also contends that the 72-month prison term is substantively unreasonable. Finally, she claims that the judge did not adequately explain the term and conditions of supervised release. The first two arguments are meritless. The third is waived. We affirm

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Deshon T. Adams

Case No.: 16-2928

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

Focus: Sufficiency of Evidence and Due Process Violation

Deshon Adams pleaded guilty to unlawfully possessing a firearm as a felon and was sentenced to 87 months in prison—the top of the range recommended by the Sentencing Guidelines. Adams asks us to remand his case for resentencing, arguing that the judge impermissibly considered unreliable evidence linking him to seven unsolved shootings when weighing the sentencing factors under 18 U.S.C. § 3553(a).

We reject this argument and affirm. The challenged evidence consists mainly of summaries of police reports describing some of the physical evidence from the shootings and memorializing statements from witnesses, confidential informants, and jailhouse snitches connecting Adams to the crimes. It also includes several statements by Adams himself, who had bragged to police about his involvement in gang violence, though only in very general terms. The government also introduced testimony from a police detective about the reliability of some, though not all, of the confidential informants.

The judge wisely approached this material with caution and in the end declined to make any explicit findings on the subject. Instead, the judge relied on the government’s presentation only very generally, and only to the extent that it confirmed what the presentence report had already documented: Adams is a headstrong young Vice Lords gang member who began committing crimes at age 14 and immersed himself in the gang’s subculture of firearms possession and violence. That careful and limited approach raises no due-process concerns and was certainly not an abuse of discretion.

Affirmed

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7th Circuit Court of Appeals

Case Name: Ryan Boucher, et al., Finance System of Green Bay, Inc., et al.,

Case No.: 17-2308

Officials: BAUER, FLAUM, and ROVNER, Circuit Judges

Focus: FDCPA Violation

Plaintiffs sued defendant, a debt collection agency, for violations of the Fair Debt Collection Practices Act (“FDCPA”). Specifically, plaintiffs allege that defendant’s dunning letters were false and misleading because they threatened to impose “late charges and other charges” that could not lawfully be imposed. The district court dismissed plaintiffs’ claims because the challenged statement mirrors the safe harbor language that this Court instructed debt collectors to use in Miller v. McCalla, Raymer, Padrick, Cobb, Nichols, & Clark, LLC, 214 F.3d 872 (7th Cir. 2000). The district court further held that defendant’s failure to remove the reference to “late charges and other charges” was not materially misleading. For the reasons below, we reverse.

Reversed

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7th Circuit Court of Appeals

Case Name: Anthony Johnson v. Lisa Madigan, et al.

Case No.: 16-3189

Officials: MANION and KANNE, Circuit Judges, and MILLER, District Judge.

Focus: Failure to State Claim

A felony conviction for stealing $12 worth of meat branded Anthony Johnson a “sexual predator” under Illinois law and subjected him to burdens and responsibilities he didn’t have before that conviction. He filed suit contending that the United States Constitution’s ex post facto clause makes at least some of those burdens and responsibilities unconstitutional. The district court dismissed Mr. Johnson’s complaint for failure to state a claim on which relief could be granted. Mr. Johnson appeals. We affirm, after first reviewing the appellee’s challenge to Mr. Johnson’s standing to pursue this case after moving to Wisconsin.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Skylar D. Henshaw

Case No.: 17-1628

Officials: KANNE and ROVNER, Circuit Judges, and DURKIN, District Judge

Focus: Sentencing Guidelines

The district court sentenced Skylar D. Henshaw, a career offender, to five years’ probation–a sentence 151 months lower than the bottom end of his guidelines range and 57 months lower than the sentence recommended by Henshaw’s counsel. Because we find this departure substantively unreasonable, we vacate Henshaw’s sentence and remand for resentencing.

Vacated and Remanded

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7th Circuit Court of Appeals

Case Name: Glen Armstrong, Sr. v. BNSF Railway Company, et al.

Case No.: 16-3674; 17-1088

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

Focus: Jury Instructions

After he was fired, Glen Armstrong sued his former employer, BNSF Railway Company (BNSF), under the Federal Rail Safety Act, 49 U.S.C. § 20109 et seq. (FRSA), alleging unlawful retaliation. The case proceeded to trial, and a jury returned a verdict in favor of BNSF. Armstrong appeals, contending that an improper jury instruction misled the jury. We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Luis Segovia, et al. v. United States of America, et al.

Case No.: 16-4240

Officials: MANION, ROVNER, and HAMILTON, Circuit Judges

Focus: Due Process Violation – Absentee Ballots

In this appeal, former residents of Illinois now residing in the United States territories of Puerto Rico, Guam, and the Virgin Islands challenge federal and state statutes that do not allow them to obtain absentee ballots for federal elections in Illinois. Generally, federal and state law require that former residents living outside of the United States who retain their U.S. citizenship receive such ballots. But the territories where the plaintiffs now reside are considered part of the United States under the relevant statutes, while other territories are not. The anomalous result is that former Illinois residents who move to some territories can still vote in federal elections in Illinois, but the plaintiffs cannot. The plaintiffs challenge that result as violative of their equal protection rights and their right to travel protected by the Due Process Clause.

The district court rejected their claims, holding that there was a rational basis for the inclusion of some territories but not others in the definition of the United States. With respect to the challenge to the Illinois statute, we agree with the district court. However, we conclude that plaintiffs lack standing to challenge the federal Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) in this context. The UOCAVA does not prevent Illinois from providing the plaintiffs absentee ballots, and so it does not cause their injury. To the extent the plaintiffs are injured, it is because they are not entitled to ballots under state law. Therefore, we affirm the portion of the judgment in favor of the state defendants, but vacate the portion of the judgment in favor of the federal defendants and remand the case with instructions to dismiss that portion for want of jurisdiction.

Affirmed in part. Vacated and Remanded in part.

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7th Circuit Court of Appeals

Case Name:  Rodney Guilbeau, et al. v. Pfizer Inc., et al

Case No.: 17-2056

Officials: BAUER and HAMILTON, Circuit Judges, and DARROW, District Judge.

Focus: FDA Approved Drug Classification

This appeal arises from the district court presiding over thousands of related claims against manufacturers of testosterone replacement therapy drugs. We must consider how to apply Levine and Mensing to a manufacturer of a drug that does not fit neatly into the colloquial dichotomy between brand-name and generic drugs. We must look at the more precise legal and regulatory context underlying those terms, focusing on whether the U.S. Food and Drug Administration (FDA) approved public sale of the drugs through the “new drug application” or NDA process, or instead through the “abbreviated new drug application” or ANDA process. We have tried to minimize use of impenetrable acronyms, but readers are warned that some are unavoidable.

The most those letters show is that the CBE process might have been used in the early 1990s to make Depo-T’s label conform with a change in federal law, and perhaps again to avoid confusion at the request of a different federal agency. These kinds of CBE changes are not relevant to our preemption analysis because they focus on using the regulation for reasons other than adding additional warnings, the sole issue of concern here. In addition, though further discovery may reveal more about the defendants’ view of the CBE regulation from past decades, it would not be likely to uncover what the plaintiffs actually need: the FDA’s policy before Mensing was decided in 2011 about whether ANDA holders like Upjohn could have added warnings through the CBE process. The plaintiffs already have available to them the process they might need for that kind of discovery—the Freedom of Information Act, 5 U.S.C. § 552 et seq. The district court did not abuse its discretion by denying discovery on this point.

We AFFIRM the decisions of the district court challenged in this appeal, apart from those vacated by the separate jurisdictional order issued today.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Rick E. Brown, et al.

Case No.: 15-3117; 15-3261

Officials: BAUER, EASTERBROOK, and RIPPLE, Circuit Judges.

Focus: Sentencing Guidelines

A grand jury indicted Rick E. Brown and Mary C. Talaga with one count of conspiracy to commit health-care fraud, in violation of 18 U.S.C. § 1349, six counts of health-care fraud, in violation of 18 U.S.C. § 1347, and three counts of falsifying a matter or providing false statements, in violation of 18 U.S.C. § 1035(a). A jury convicted them on all counts. The district court sentenced Mr. Brown to eighty-seven months’ imprisonment on the health-care fraud counts and terms of sixty months’ imprisonment on each of the falsification counts to run concurrently with each other and with the fraud counts. In doing so, the district court explained that a significant sentence was warranted for several reasons, including general deterrence. Ms. Talaga was sentenced to concurrent forty-five-month sentences on all of the ten counts.

Both defendants now maintain that the district court erred in imposing their respective sentences. Mr. Brown maintains that the district court’s assumptions about the need for general deterrence were unfounded and constituted procedural error. Ms. Talaga argues that, when the district court calculated the amount of loss for which she was responsible, it impermissibly included losses that occurred before she joined the conspiracy. The inclusion of these amounts resulted in a higher loss amount, corresponding to a higher offense level and sentence.

Because the district court did not err in its reasoning or in its sentencing determination, we affirm its judgments.

Affirmed

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7th Circuit Court of Appeals

Case Name: Robert McCoy, et al., v. Chicago Heights Election Commission, et al.

Case No.: 16-3463

Officials: WOOD, Chief Judge, and BAUER and EASTERBROOK, Circuit Judges.

Focus: Redistricting  

Plaintiffs‐appellants Robert McCoy and Kevin Perkins (“Appellants”) appeal from the district court’s order approving as constitutional a reapportioned map of aldermanic districts in the City of Chicago Heights (“the City”). The City redrew the ward boundaries pursuant to a consent decree entered in 2010, after decades of litigation. After an evidentiary hearing, the district court ruled that the City had sufficiently justified the population deviations in its proposed map. We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Talal S. Hamdan, M.D. v. Indiana University Health North Hospital, Inc.,

Case No.: 16-1074

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

Focus: Discrimination

Dr. Talal Hamdan, a U.S. citizen of Middle-Eastern (Palestinian) descent, sued Indiana University Health North Hospital, Inc. for discriminating against him based on race. Dr. Hamdan was not an employee of the hospital and so could not sue under Title VII of the Civil Rights Act of 1964. He sued instead under 42 U.S.C. § 1981, a law first enacted as part of the Civil Rights Act of 1866, after ratification of the Thirteenth Amendment, to protect the ability of newly freed slaves to enter into and enforce contracts, especially contracts regarding land and their labor. Dr. Hamdan alleged discrimination regarding the benefits, privileges, terms, and conditions in his contractual relationship with the hospital.

A jury trial ended with a verdict for the hospital. Dr. Hamdan then moved for a new trial. He argued that the district court had erred in allowing the hospital to ask him impeachment questions relating to his prior work at other hospitals. Dr. Hamdan contends the subjects of these questions were both irrelevant and privileged under state peer-review statutes. We find no abuse of discretion and affirm the judgment of the district court.

Affirmed

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7th Circuit Court of Appeals

Case Name: William Hurt, et al., v. Matthew Wise, et al.,

Case No.: 17-1771; 17-1777

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

Focus: Malicious Prosecution Claim

Andrea, Deadra, and William Hurt were all arrested after their uncle, Marcus Golike, was found dead on the banks of the Ohio River. The arrests came after Deadra and William “confessed” that they, with some help from Andrea, murdered Golike. But one by one, each was absolved. Andrea was never criminally charged. The charges against Deadra were dropped after four months. And while the state prosecuted William, he was not convicted on any charge.

With the criminal proceedings behind them, Andrea, Deadra, and William filed a civil suit against the officers and detectives involved in their arrests and prosecutions. Their claims focus on the interrogations of Deadra and William, the decisions to arrest all three plaintiffs, and the alleged fabrication of evidence by the police. All defendants filed motions for summary judgment on the basis of qualified immunity. For the most part, the district court denied the motions. The defendants challenge those rulings in this interlocutory appeal. We conclude that with minor exceptions the district court correctly assessed the situation.

The district court’s summary judgment ruling is REVERSED with respect to Deadra’s malicious prosecution claim against defendants Arbaugh and Pagett. We also conclude that the district court should have eliminated the substantive‐due‐ process theory. In all other respects, insofar as we have jurisdiction to act here, we AFFIRM the order of the district court denying qualified immunity to the defendants.

Reversed in part. Affirmed in part.

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7th Circuit Court of Appeals

Case Name: United States of America v. Ruben Mancillas

Case No.: 17-1254

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

Focus: Sentencing Guidelines

A jury convicted Ruben Mancillas of two counts of possessing ammunition as a felon, in violation of 18 U.S.C. § 922(g)(1). On appeal, he raises two challenges to his sentencing: (1) that he was denied the right to represent himself at sentencing; and (2) that the district court applied the wrong base offense level because the Indiana offense of strangulation is not a “crime of violence” for Sentencing Guidelines purposes. We hold that the Indiana offense of strangulation is a crime of violence for Sentencing Guidelines purposes, and thus, the district court did not err in calculating Mancillas’ base offense level. However, we remand for resentencing since the court summarily denied Mancillas’ clear and unequivocal request to represent himself at sentencing and failed to conduct a Faretta colloquy.

Vacated and Remanded

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7th Circuit Court of Appeals

Case Name: Toll Processing Services, LLC v. Kastalon, Inc., et al.

Case No.: 15-3187

Officials: MANION and KANNE, Circuit Judges, and PEPPER, District Judge.

Focus: Conversion and Negligence Claims

Toll Processing Services, LLC (“Toll Processing”) appeals from the district court’s order granting summary judgment in favor of Kastalon, Inc. and Kastalon Polyurethane Products (collectively, “Kastalon”) on Toll Processing’s conversion and negligence claims. We reverse the district court’s order as to those claims, and remand the case for further proceedings.

Reversed and Remanded

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7th Circuit Court of Appeals

Case Name: Miguel Perez-Montes v. Jefferson B. Sessions III

Case No.: 17-2520

Officials: EASTERBROOK and SYKES, Circuit Judges, and REAGAN, District Judge.

Focus: Immigration – Sufficiency of Evidence

Miguel Perez-Montes, a citizen of Mexico, entered the United States in 1989 as a lawful permanent resident. In 2001 he joined the Army and later served two tours in Afghanistan. He received a general dis charge under honorable conditions. During all the years he could do so, he did not apply for citizenship. His eligibility ended in 2010, when he was convicted of a cocaine offense. That conviction led to removal proceedings and made Perez Montes ineligible for most forms of relief.

Perez-Montes does not contend that the administrative decision is unsupported by substantial evidence. Instead he makes a purely legal argument: that both the IJ and the BIA misunderstood the burden that an alien faces when seeking relief under the Convention. Regulations require an alien to show that torture is “more likely than not”. 8 C.F.R. §§ 1208.16(b)(1)(iii), (b)(2), (c)(2), (c)(4), 1208.17(a). Perez Montes contends that the Board and the IJ erred by asking, instead, whether he faced a “substantial risk” of torture in Mexico. That differs from the regulatory standard, he asserts, and saddled him with a greater burden.

No decision in this circuit holds the regulation invalid or creates a standard incompatible with it. If there is a difference, it is not one adverse to aliens. By reciting this circuit’s non-quantitative proxy for the regulatory language, the IJ and BIA did not commit a legal error. The petition for review is denied.

Denied

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7th Circuit Court of Appeals

Case Name: Matthew Warciak v. Subway Restaurants, Inc.

Case No.: 17-1956

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

Focus: Contract Arbitration Clause

Should courts apply federal or state law to decide whether a contract’s arbitration clause binds a non-signatory? In Scheurer v. Fromm Family Foods LLC, we held that courts should apply state law. 863 F.3d 748, 750 (7th Cir. 2017). We reiterate that holding here. Subway sought to enforce against Warciak an arbitration agreement that neither party had signed. Because Illinois promissory estoppel does not bind Warciak to the arbitration agreements between T-Mobile and his mother, we REVERSE the district court’s order dismissing Warciak’s suit and compelling arbitration and REMAND for further proceedings.

Reversed and Remanded

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7th Circuit Court of Appeals

Case Name: United States of America v. Ronald Tingle

Case No.: 17-1604

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

Focus: Sufficiency of Evidence – Expert Testimony

Ronald Tingle was tried and convicted of possessing and distributing methamphetamine and of possessing a firearm in furtherance of a drug trafficking crime. On appeal, he argues that the district court erred when it allowed a government witness to give expert testimony without properly vetting the witness’s credentials and when it allowed the same witness to testify regarding the defendant’s mental state. Additionally, Tingle argues that he should have been granted access to grand jury materials and that his case should have been dismissed based on prosecutorial vindictiveness. For the reasons that follow, each of these claims fails, and the judgment of the district court is affirmed.

Affirmed

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7th Circuit Court of Appeals

Case Name: James Snow v. Randy Pfister

Case No.: 17-1113

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

Focus: Ineffective Assistance of Counsel

James Snow was convicted of murder and sentenced to natural life in prison. In a petition for a writ of habeas corpus, he alleges that his constitutional rights were violated when his trial counsel failed to provide effective assistance and when the prosecutor failed to disclose material evidence helpful to the defense. The district court denied the petition. We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Ricky Olson

Case No.: 16-3583

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

Focus: Plea Withdrawal

We do not know whether Ricky Olson entered a voluntary and intelligent guilty plea on September 9, 2016, because the district court never asked the right questions. Several weeks earlier, the court had granted Olson’s motion to withdraw his guilty plea and to proceed to trial. But matters did not rest there. Instead, on September 9 the district court brought the motion to withdraw the guilty plea back to life (that is, the one it had already disposed of), and this time summarily denied it. The court ultimately sentenced Olson to 180 months of incarceration and 20 years of supervised release. On appeal, Olson complains that the irregular proceedings surrounding his plea failed to comply with the rules of criminal procedure. We agree with him. Because the September 9 proceedings resulted in a new change of plea, which the district court accepted without conducting the colloquy required by Federal Rule of Criminal Procedure 11, we reverse and remand.

Reversed and Remanded

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7th Circuit Court of Appeals

Case Name: Miratbek Zhakypbaev v. Jefferson B. Sessions III

Case No.: 17-1459

Officials: WOOD, Chief Judge, and EASTERBROOK and ROVNER, Circuit Judges.

Focus: Immigration – Asylum

The petitioner Miratbek Zhakypbaev was a native and citizen of Kyrgyzstan, who was admitted to the United States in September 2012 as a nonimmigrant student to attend the Computer Systems Institute. His wife and three daughters were admitted in December 2012 based on his status. The petitioner did not attend the Computer Systems Institute after February 4, 2013, and in April 2013, filed applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The petitioner’s claims were premised on the events surrounding the ouster of Kyrgyz president Kurmanbek Bakiev in Kyrgyzstan in April 2010. The petitioner claimed that based on his connections with the Bakiev family and with the political party associated with Bakiev, he was persecuted during that time. He argued that he was eligible for asylum and withholding of removal because he was a victim of past persecution and had a well‐founded fear of future persecution in Kyrgyzstan on account of his political opinion and his membership in a particular social group—that of persons associated with the Bakiev family. In addition, he claimed that he was entitled to protection under CAT.

There is insufficient evidence in the record to compel the conclusion that the questioning was for a motive other than the desire to pursue valid criminal cases. In fact, although he maintains that the interrogators wanted him to file a false statement, he concedes that he does not actually know the content that they sought from him because it never got to that point. Finally, the evidence indicated that the political party which the petitioner claims to support, Ata‐Zhurt, won the majority of the votes in the October 2010 election. Given all of those facts, the IJ and the Board did not err in determining that the petitioner failed to demonstrate a well‐founded fear of future persecution.

Finally, the IJ and Board did not err in determining that the petitioner was not entitled to withholding of removal or to protection under the CAT. Where, as here, a petitioner cannot demonstrate entitlement to asylum, he “necessarily cannot satisfy the more stringent requirement for withholding of removal under 8 U.S.C. § 1231(b)(3).” Bueso‐Avila, 663 F.3d at 937, quoting Ahmed v. Ashcroft, 348 F.3d 611, 615 (7th Cir. 2003).

Regarding the CAT claim, the petitioner presents on appeal only the bare assertion that the Board erred in finding there was no substantial grounds for believing that he would be in danger of torture, but has failed to provide any argument as to why that determination was erroneous. The record on its face supports the determination of the IJ and Board. The petition for review is therefore denied.

Denied

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7th Circuit Court of Appeals

Case Name: Natasha Mueller, et al. Apple Leisure Corporation

Case No.: 16-2885

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

Focus: Contract – Forum-selection Clause

Natasha Mueller suffered a severe bout of food poisoning after she was served contaminated fish at a resort in the Dominican Republic while on her honeymoon. She and her husband sued several affiliated companies that sold and managed their vacation package. They filed their suit in federal court in the Eastern District of Wisconsin, where they live and purchased their trip. The vacation contract, however, contains a forum-selection clause requiring the parties to litigate their disputes in Delaware County, Pennsylvania.

The defendants moved to dismiss, citing the forum-selection clause in the travel contract. The district judge applied the doctrine of forum non conveniens and dismissed the case based on the forum-selection clause. The Muellers cry foul, insisting that the judge’s order was procedurally irregular because the dismissal motion did not expressly invoke that doctrine. They also argue that the judge should have converted the motion to one for summary judgment and allowed discovery before ruling on the issue.

We affirm. The judge’s decision was procedurally and substantively sound. A forum-selection clause channeling litigation to a nonfederal forum is enforced through the doctrine of forum non conveniens. Atl. Marine Const. Co. v. U.S. Dist. Ct. for the W. Dist. of Tex., 134 S. Ct. 568, 580 (2013). Atlantic Marine holds that only an exceptional public-interest justification can displace a contractual choice of forum. Id. at 581. The Muellers have not identified any public interest to justify overriding the forum-selection clause in their travel contract. Dismissal on the pleadings was entirely appropriate.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Mark Daniel Cabagua

Case No.: 2015AP2267

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

Focus: Ineffective Assistance of Counsel

Mark Daniel Cabagua, pro se, appeals the circuit court order denying his WIS. STAT. § 974.06 (2015-16) motion to withdraw his Alford pleas to repeated sexual assault of a child, first-degree sexual assault of a child, and second-degree sexual assault of a child. We conclude: (A) Cabagua was properly informed of the elements of the crimes to which he entered pleas; (B) exculpatory evidence was not withheld; (C) the documents Cabagua relies on are not newly discovered evidence; (D) neither Cabagua’s trial counsel nor his postconviction counsel were ineffective; and (E) Cabagua is not entitled to a new trial in the interest of justice. Therefore, we affirm.

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WI Court of Appeals – District II

Case Name: UMB Bank, N.A., v. David T. Whitehead, et al.

Case No.: 2016AP1097

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

Focus: Foreclosure – Standing to Sue

David and Terri Whitehead appeal a judgment of foreclosure granted in favor of UMB Bank, N.A. They contend that UMB was without standing to pursue foreclosure, failed to adequately mitigate its damages, and came seeking relief with unclean hands. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Justin W. Van Dera

Case No.: 2016AP1596-CR

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

Focus: Ineffective Assistance of Counsel

A jury convicted Justin Van Dera of homicide by negligent use of a motor vehicle, operating after revocation, second-degree recklessly endangering safety, obstructing an officer, and three counts of misdemeanor bail jumping. The circuit court denied Van Dera’s postconviction motion alleging ineffective assistance of trial counsel. On appeal, Van Dera contends that his trial counsel was ineffective and the evidence was not sufficient to convict him of bail jumping. We disagree and affirm.

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WI Court of Appeals – District I

Case Name: Steadfast Insurance Company v. Greenwich Insurance Company

Case No.: 2016AP1631

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

Focus: Insurance Claim – Breach of Duty to Defend

This case involves issues of insurance coverage and the duty to defend involving Milwaukee Metropolitan Sewerage District (MMSD) and insurance companies, Greenwich Insurance Company and Steadfast Insurance Company, relating to the defense of lawsuits against MMSD in the wake of a June 7 and 8, 2008 rain event (the “rain event lawsuits”). After the rain event lawsuits were filed, MMSD tendered its defense to Steadfast and Greenwich. Steadfast accepted the tender and defended MMSD. Greenwich declined the tender and did not defend MMSD. Eventually, the rain event lawsuits settled and, as a part of the settlement, Steadfast reimbursed MMSD $1.55 million for MMSD’s defense costs. Steadfast then brought the lawsuit (the “insurance lawsuit”) that is the subject of this appeal against Greenwich. Ultimately, the trial court determined that Greenwich breached its duty to defend and, therefore, had waived its rights to raise coverage defenses, and was responsible for paying the $1.55 million for MMSD’s defense and Steadfast’s $325,500 attorney fees incurred in bringing the insurance lawsuit.

On appeal, Greenwich argues that it did not breach its duty to defend the rain event lawsuits and did not waive its right to litigate the coverage issues. Greenwich further argues that it was entitled to summary judgment for the following reasons: (1) its policy with MMSD was excess coverage, with Steadfast’s coverage being primary; (2) its policy with MMSD had a $250,000 self-insured risk retention amount and MMSD did not establish that it had expended that amount in defending the rain event lawsuits; and (3) Steadfast’s claim is barred by the one-year statute of limitations in WIS. STAT. § 893.92 (2015-16), applicable to actions for contribution. Alternatively, Greenwich argues that it was entitled to an allocation of the costs as between Steadfast, Travelers and itself. In addition, Greenwich argues that Steadfast is not entitled to recover attorney fees in connection with the insurance lawsuit.

We conclude as follows: (1) Greenwich’s policy provided primary, not excess, coverage for claims against MMSD; (2) MMSD has established that it met the $250,000 risk retention amount by incurring $594,302.23 in defense costs; (3) Steadfast’s equitable subrogation claim is timely because the six-year statute of limitations in WIS. STAT. § 893.43 applicable to contract claims applies to Steadfast’s claim, which is premised on Greenwich’s breach of the duty to defend MMSD; (4) under the facts of this case, because Greenwich breached its duty to defend MMSD, Greenwich is not equitably entitled to an allocation of MMSD’s defense costs; and (5) under the facts of this case, Steadfast is equitably entitled to recover attorney fees in this lawsuit. Based on our conclusions, we affirm the trial court’s orders and judgments.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Jahnmahn Marquis Carroll

Case No.: 2016AP2335-CR

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

Focus: Ineffective Assistance of Counsel

Jahnmahn Marquis Carroll appeals from a judgment of conviction, entered upon his guilty pleas, on two counts of possession with intent to deliver heroin and one count of possession of a firearm by a felon. Carroll also appeals from that portion of an order denying his postconviction motion to withdraw his pleas because of ineffective assistance of trial counsel. Carroll asserts that the circuit court erred when it declined to continue the postconviction motion hearing to take additional testimony. We reject Carroll’s challenge and affirm the judgment and order.

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WI Court of Appeals – District III

Case Name: De Pere Ledgeview Municipal Court v. John C. Knaus

Case No.: 2016AP2501

Officials: HRUZ, J.

Focus: Ordinance Violation

John Knaus, pro se, appeals a judgment of the circuit court finding him in violation of a Town of Ledgeview ordinance. We conclude the evidence at the de novo trial was sufficient to prove Knaus violated TOWN OF LEDGEVIEW, WIS., CODE § 121-5. As an initial matter, the evidence readily showed the vehicle was a “junked motor vehicle” under TOWN OF LEDGEVIEW, WIS., CODE § 121-3. It was undisputed that the registration of Knaus’s vehicle had expired in early 2011 and had not been renewed since. The evidence also showed the vehicle was “nonoperational” and could not be “self-propelled” in its then-existing state. According to Roberts, the vehicle was “rusted out” and had not moved from its position since at least 2009. Knaus claimed he could still drive the vehicle, but he admitted that it was on its second engine, that it had traveled a total of 440,000 miles, that he painted over the side windows, that he last started the vehicle “probably[] a year” before the citation, and that he now desired to use the vehicle solely as a “lawn ornament.” Finally, Knaus testified he bought the van in 1979, and Roberts testified the vehicle appeared to be worth less than $500. Accordingly, the van satisfied all of the definitions of a “junked motor vehicle” under § 121-3, and the evidence showed Knaus violated § 121-5. We affirm.

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WI Court of Appeals – District IV

Case Name: Christopher Kieninger, et al. v. Crown Equipment Corporation, LLC

Case No.: 2017AP631

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

Focus: Employment Law Wage Dispute – ECFA Standard

Christopher Kieninger and Dewayne Meek, both former employees of Crown Equipment Corporation, appeal the circuit court’s grant of summary judgment in favor of Crown on their Wisconsin wage law claim. Kieninger and Meek are representatives of a class of employees who work, or have worked, for Crown. They argue that the circuit court erred by applying the legal standard from the federal Employee Commuting Flexibility Act (ECFA), a 1996 amendment to the federal Fair Labor Standards Act. They further argue that, under Wisconsin’s wage law, they are entitled to summary judgment.

We agree with the employees that the circuit court erred by applying the federal standard from ECFA. Wisconsin’s wage law lacks language analogous to ECFA, and Crown’s argument for applying the ECFA standard is not persuasive. Therefore, we conclude that the circuit court erred in granting summary judgment to Crown based on the legal standard from ECFA.

However, we do not go so far as to conclude that the employees are entitled to summary judgment because, as we conclude in this opinion, the ECFA standard does not apply. We lack sufficient adversarial briefing on the correct Wisconsin standard and, additionally, we are uncertain whether under the correct standard there might be one or more genuine issues of material fact. Accordingly, we reverse summary judgment and remand to the circuit court for further proceedings. If the circuit court permits, those further proceedings might include additional summary judgment argument and submissions.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. George Clinton Wilson

Case No.: 2016AP2006-CR

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

Focus: Postconviction Motion Denied

George Clinton Wilson appeals a judgment of conviction entered on a jury verdict and an order denying his postconviction motion for a new trial. Wilson was convicted of six counts arising out of an incident when he fired a gun into a crowded apartment lobby and injured a woman. The circuit court denied Wilson’s postconviction motion after a Machner hearing. We now affirm.

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WI Court of Appeals – District I

Case Name: Caitria Thiele v. Ronnie L. Robinson and Hush

Case No.: 2016AP2180

Officials: Kessler, Brash and Dugan, JJ.

Focus: Insurance – Negligence Claims

Caitria Thiele appeals an order of the circuit court granting summary judgment to third-party defendant Auto-Owners Insurance Company. We affirm. Thiele argues that the circuit court erred in granting summary judgment in favor of Auto-Owners because: (1) there is a genuine issue of material fact as to whether the WCA precludes Thiele’s negligence claims against Bootz; (2) Coverage A of the Auto-Owner’s policy covers Thiele’s negligent supervision claim against Bootz; and (3) Coverage B covers Thiele’s false imprisonment claim against Robinson.

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WI Court of Appeals – District I

Case Name: Milwaukee Academy v. Department of Children and Families

Case No.: 2016AP2377

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

Focus: Statutory Interpretation

In this case we address whether, under the relevant statute and Wisconsin Administrative Code provisions, a residential care center (RCC) for minors is prohibited from strip searching a resident, regardless of the circumstances. The Department of Children and Families (DCF or the Department), which licenses such facilities, imposed a $500 forfeiture on Milwaukee Academy (M.A.) for allowing its staff to strip search a resident on June 18, 2014. DCF contended that under no circumstances was a strip search of a resident ever permitted. M.A. argues that the forfeiture is improper because the applicable statute and rules permit strip searches in certain circumstances that were present here.

We employ principles of statutory construction and construe the applicable provisions to achieve harmony between them and to avoid absurd results, and we apply due weight to the agency’s interpretation of its own rule. We conclude that under the proper reading of the relevant provisions, a strip search of a resident may be permitted under WIS. ADMIN. CODE § DCF 52.31(1)(a) (Nov. 2017), WIS. STAT. § 51.61(2015-16), and WIS. ADMIN. CODE § DHS 94.24(2)(d) in certain specific circumstances. We therefore reverse the agency’s decision that a strip search is never permissible and vacate the forfeiture order. However, because the record is insufficient for this court to make the determination of whether the particular strip search here was permitted, we remand the matter to the Department for a hearing to determine whether this strip search was permitted under the statute and code provisions.

Recommended for Publication

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Mark R. Scott

Case No.: 2017AP23-CR

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

Focus: Sentencing Guidelines

Mark Scott appeals a judgment of conviction for two child-related sexual offenses and an order denying his motion for postconviction relief. Scott argues the circuit court erroneously exercised its sentencing discretion by imposing an excessive sentence that relied on improper factors. We conclude Scott’s sentence was neither excessive nor tainted by reference to improper factors. We therefore affirm.

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WI Court of Appeals – District III

Case Name: Outagamie County v. C.A.

Case No.: 2017AP450

Officials: STARK, P.J.

Focus: Involuntary Commitment

C.A. appeals a WIS. STAT. ch. 51 order for her involuntary commitment. She contends Outagamie County failed to show she was dangerous to herself or others under WIS. STAT. § 51.20(1)(a)2. We affirm.

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WI Court of Appeals – District I

Case Name: County of Milwaukee v. Nicholas O. Moran

Case No.: 2017AP001047; 2017AP001048

Officials: DUGAN, J.

Focus: OWI – Probable Cause

In these consolidated appeals, Nicholas Moran appeals his convictions for operating while under the influence of an intoxicant (OWI)— first offense, operating with a prohibited alcohol concentration—first offense and inattentive driving. Moran challenges the trial court’s denial of his motion to suppress evidence that law enforcement officers obtained after he was detained for the purpose of administering field sobriety tests, and the denial of his subsequent motion for reconsideration. Moran contends that the deputy investigating the automobile accident in which Moran was involved was not credible and the deputy did not have reasonable suspicion to believe that Moran was operating his vehicle while under the influence of an intoxicant. Therefore, Moran asserts that Kellner could not further detain Moran to administer field sobriety tests.

We conclude that the deputy had reasonable suspicion to detain Moran. We also hold that the trial court properly exercised its discretion in determining the historical facts, including credibility determinations, and we uphold those findings. Therefore, we affirm the judgments of conviction.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. M.D.W.

Case No.: 2017AP1945; 2017AP1946

Officials: BRASH, J.

Focus: Termination of Parental Rights

M.D.W. appeals from orders terminating her parental rights for two of her children, A.J.C.-W. and M.W. She argues that the trial court did not appropriately exercise its discretion in granting the termination of her parental rights because it did not sufficiently consider the statutory standard and factors relating to termination. She therefore seeks to vacate the termination of parental rights orders for the children. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. George Gutierrez

Case No.: 2016AP2040-CR

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

Focus: Motion to Admit Extrinsic Evidence Denied

George Gutierrez appeals from a judgment convicting him of fourteen felony counts relating to the sexual abuse of his daughters. He contends that the circuit court erroneously exercised its discretion in denying his motion to admit extrinsic evidence against one of the victims. He further contends that the exclusion of such evidence violated his constitutional right to present a defense. We reject Gutierrez’s arguments and affirm the judgment.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Ryan A. Banks

Case No.: 2016AP1025

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

Focus: Sentence Modification

Ryan Banks appeals an order denying his postconviction motion to withdraw his guilty plea or, in the alternative, for sentence modification. He also appeals an order denying his motion for reconsideration of that order. Banks contends that he is entitled to plea withdrawal because of ineffective assistance of trial counsel. According to Banks, his trial counsel was deficient by failing to move for suppression of Banks’ confession to being the person who shot and killed the victim, and counsel deficiently told Banks that Banks had no defense. Banks asserts that these instances of deficient performance prompted Banks to plead guilty and forgo his right to a trial. More specifically, Banks effectively asserts that (1) he would not have pled guilty because, if his trial counsel had moved to suppress Banks’ admissions, the motion would have been granted and the prosecution against Banks would have been dropped and (2) he would not have pled guilty if he had not been pressured to do so by his trial counsel. We conclude that the circuit court properly denied Banks’ postconviction motion and his motion for reconsideration, and we affirm both orders.

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WI Court of Appeals – District IV

Case Name: Connie M. Weiland v. John D. Weiland

Case No.: 2016AP1902

Officials: Sherman, Blanchard, and Kloppenburg, JJ.

Focus: Divorce Proceedings – Child Support and Medical Expenses

This is a family court action that dates from 1997. Connie Weiland appeals an order of the circuit court awarding her approximately $9,000 for unpaid child support, medical insurance, medical expenses, and a contribution to her attorney’s fees in connection with the contempt motion that Connie brought against her former husband, John Weiland. Connie argues that the court erred in determining: the amount of back child support due; when interest on back child support began to accrue; and the amount due to Connie for uninsured medical expenses. We affirm for the reasons set forth below.

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WI Court of Appeals – District III

Case Name: William Fankhauser, et al. v. Thomas Fankhauser

Case No.: 2017AP776

Officials: Blanchard, Kloppenburg and Fitzpatrick, JJ.

Focus: Easement

William and Annette Fankhauser commenced a lawsuit against Thomas Fankhauser in the Barron County Circuit Court claiming that Thomas obstructed William’s access to his property by blocking an easement. The parties’ attorneys negotiated a potential resolution of the lawsuit that required the signatures of the parties on two documents in order to conclude the settlement. Ultimately, Thomas refused to sign the two documents.

William filed a motion in the circuit court, pursuant to WIS. STAT. § 807.05 (2015-16), arguing that the parties had entered into a binding settlement agreement. The circuit court granted William’s motion and held that, although the two documents were not signed by the parties, the parties had reached an “agreement in principle” that was enforceable. Thomas appeals, arguing that the communications between counsel did not constitute an enforceable settlement agreement. We conclude that the communications between counsel establish that the parties intended to be bound only after two documents were signed and, because those documents were not signed, there was no enforceable agreement. Accordingly, we reverse the circuit court’s order.

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WI Court of Appeals – District III

Case Name: Employers Assurance Corp, et al.

Case No.: 2017AP841

Officials: Sherman, Kloppenburg and Fitzpatrick, JJ.

Focus: Worker’s Compensation Benefits

Linda Schue-Nilles and the Labor and Industry Review Commission appeal from a circuit court order that vacated the commission’s decision awarding her worker’s compensation benefits. Schue-Nilles contends that the commission’s decision is reasonable and is therefore entitled to deference. We agree with Schue-Nilles and on that basis reverse the circuit court order and reinstate the commission’s decision awarding benefits.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. McCann’s Rooter Sewer & Drain Cleaning Service, Inc.

Case No.: 2017AP906

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

Focus: Wage Enforcement

The State brought this prevailing wage enforcement action against McCann’s Rooter Sewer & Drain Cleaning Service, Inc., seeking unpaid wages owed to sixteen McCann’s employees for work performed on nine municipal and state sewer projects that had been determined to be prevailing wage projects. The circuit court granted the State’s motion for summary judgment and awarded the State $484,211.80 for the unpaid wages owed to the employees. McCann’s appeals, arguing that: (1) the circuit court erred in concluding that McCann’s was required to exhaust its remedies in order to challenge whether the prevailing wage determinations encompass the work performed by its employees on the projects; and (2) certain of the unpaid wage claims were untimely. McCann’s makes three separate arguments in challenging the court’s ruling on exhaustion of remedies and two separate arguments in challenging the court’s ruling on timeliness. As explained below, we conclude that McCann’s has forfeited all but one of its arguments raised on appeal, and that the argument not forfeited has no merit. Accordingly, we affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Daniel E. Olsen

Case No.: 2017AP918-CR

Officials: LUNDSTEN, P.J.

Focus: Probation and Restitution Payments

Daniel Olsen appeals the circuit court’s order extending Olsen’s probation and increasing Olsen’s monthly restitution payment. Olsen states the issue on appeal as follows: Was it reversible error and denial of due process of law for the trial court to modify and extend Defendant Appellant Olsen’s probation without allowing him to call witnesses and cross-examine the department [of corrections] and present evidence of his own at the probation review hearing and without an “official” pleading/request/motion to extend said probation having ever been filed with the court or served upon Defendant Appellant Olsen?

I turn to Olsen’s argument that he received inadequate notice of the request to extend his probation. I find Olsen’s notice argument difficult to understand, but it appears to be based on the assertion that the notice Olsen received was insufficiently formalized. Olsen asserts that no “‘official’ pleading/request/motion to extend” was ever filed or served. I reject Olsen’s notice argument for two reasons.

First, Olsen points to no authority that requires such formal notice for purposes of extending probation. On the contrary, the case law that Olsen cites supports the proposition that something less than formal notice is required. See Hays, 173 Wis. 2d at 447 n.2 (“It is not the form of the notice that is important ….”). Second, as I now explain, I conclude that Olsen had actual notice of the extension request far in advance of the pertinent hearing. As the State points out, the record reflects that Olsen was present at a February 6, 2017 hearing during which the department of corrections requested an extension based on “the amount of restitution still owed.” That request was not heard until March 29, 2017. The State argues that this actual notice was adequate. Olsen, for his part, has not filed a reply brief or otherwise addressed the State’s actual notice argument. I take this failure as a concession that Olsen had actual notice. See United Coop. v. Frontier FS Coop., 2007 WI App 197, ¶39, 304 Wis. 2d 750, 738 N.W.2d 578 (appellant’s failure to respond in reply brief to an argument made in responsive brief may be taken as a concession).

For the reasons above, I affirm the circuit court’s order extending Olsen’s probation for one year and increasing Olsen’s restitution payment during that one-year period to $200 per month.

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WI Supreme Court Digests

WI Supreme Court

Case Name: The Manitowoc Company, Inc., v. John M. Lanning

Case No.: 2018 WI 6

Focus: Statutory Interpretation – Non-solicitation of Employees Provision

This is a review of a published decision of the court of appeals reversing a judgment of the Circuit Court, Manitowoc County, Gary L. Bendix, Judge. The circuit court granted the motion of The Manitowoc Company, Inc., the plaintiff, for summary judgment and denied the cross-motion for summary judgment of the defendant, John M. Lanning. After a bench trial on damages, the circuit court awarded Manitowoc Company $97,844.78 in damages, $1,000,000 in attorney fees, and $37,246.82 in costs against Lanning.

In response to the first issue, the particular terms of the non-solicitation of employees provision at issue in the instant case do not appear to have been analyzed by any prior Wisconsin court decision. We conclude, as prior cases have concluded, that although Wis. Stat. § 103.465 explicitly refers to a covenant not to compete, the plain meaning of § 103.465 is not limited to a covenant in which an employee agrees not to compete with a former employer. This court has explicitly stated that “it would be an exercise in semantics to overlook § 103.465 merely because [a provision] of the agreement is not labeled a ‘covenant not to compete.'” Rather, § 103.465 has been applied to agreements viewed as restraints of trade.

With regard to the second issue, we conclude that Lanning’s non-solicitation of employees provision is unenforceable under Wis. Stat. § 103.465. It does not meet the statutory requirement that the restriction be “reasonably necessary for the protection of the employer.” Wis. Stat. § 103.465. Accordingly, we affirm the decision of the court of appeals and remand the cause, as did the court of appeals, to the circuit court with instructions to enter judgment in favor of Lanning.

Affirmed and Remanded

Concur: R.G. BRADLEY, J. concurs, joined by GABLEMAN, J. and KELLY, J. (opinion filed).

Dissent: ROGGENSACK, C.J. dissents, joined by ZIEGLER, J. (opinion filed).

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WI Supreme Court

Case Name: State of Wisconsin v. Diamond J. Arberry

Case No.: 2018 WI 7

Focus: Sentencing Guidelines – Expunction

This is a review of a published decision of the court of appeals, State v. Arberry, 2017 WI App 26, 375 Wis. 2d 179, 895 N.W.2d 100, affirming the Fond du Lac County circuit court’s denial of Diamond J. Arberry’s (“Arberry”) postconviction motion seeking expunction pursuant to Wis. Stat. § 973.015 (2013-14)3 vis-à-vis sentence modification under Wis. Stat. § 809.30(2)(h).

We consider one issue on this appeal: whether a defendant may seek expunction after sentence is imposed. We conclude that a defendant may not seek expunction after sentence is imposed because both the language of Wis. Stat. § 973.015 and Matasek require that the determination regarding expunction be made at the sentencing hearing. Thus, we affirm the decision of the court of appeals.

Affirmed

Concur:

Dissent:

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WI Supreme Court

Case Name: Office of Lawyer Regulation v. Michael Leslie Cummings

Case No.: 2018 WI 8

Focus: Attorney Disciplinary Proceedings

In this disciplinary matter we are asked to determine whether Attorney Michael Leslie Cummings’ license to practice law in Wisconsin should be suspended for a period of six months, as discipline reciprocal to that imposed by the Supreme Court of Illinois.

After reviewing this matter, we conclude that Attorney Cummings’ license to practice law in this state should be suspended for a period of six months. In light of the fact that Attorney Cummings has not contested the OLR’s complaint and there has not been a need for the appointment of a referee, we do not impose the costs of this proceeding on Attorney Cummings.

The Office of Lawyer Regulation (OLR) initiated this proceeding by filing a complaint, an order to answer, and a motion pursuant to Supreme Court Rule (SCR) 22.22(3), requesting the court to order Attorney Cummings to show cause, in writing, why the imposition of discipline identical to that imposed in Illinois would be unwarranted. The OLR’s complaint contained two counts: (1) that Attorney Cummings is subject to discipline reciprocal to a six-month suspension in Illinois and (2) that Attorney Cummings had violated SCR 22.22(1) by failing to notify the OLR of the Illinois suspension. This court issued the requested order to show cause, but Attorney Cummings did not file a response. He also has not filed an answer or other response to the OLR’s complaint. Accordingly, we proceed with the resolution of this matter pursuant to SCR 22.22(3).

Affirmed

Concur:

Dissent:

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WI Supreme Court

Case Name: Jerome Movrich, et al.

Case No.: 2018 WI 9

Focus: Property – Public Trust

David and Diane Lobermeier appeal a decision of the court of appeals, affirming the circuit court’s judgment entered in favor of Jerome and Gail Movrich regarding their asserted right to install a pier and to access the Sailor Creek Flowage directly from their shoreline property. Lobermeiers own the waterbed of the Flowage where the Movrich property meets the water. Lobermeiers contend that the presence of navigable water over their property does not affect their basic property rights, including the right to prohibit Movriches from installing a pier into or over the portion of the waterbed of the Flowage that Lobermeiers own. Lobermeiers further contend that Movriches may access the Sailor Creek Flowage only from a public access point. Movriches respond that Lobermeiers’ ownership is qualified by and subservient to their asserted riparian rights and to the Wisconsin public trust doctrine. There are three issues on this appeal. First, we consider whether Movriches have riparian rights, which when combined with their rights under the public trust doctrine, overcome Lobermeiers’ private property rights such that Movriches can place a pier on or over Lobermeiers’ property. To answer this question we review property rights, riparian rights, and the public trust doctrine, detailing the origin and extent of each. In regard to the first issue, we conclude that while Movriches’ property borders the Flowage, they are not entitled to those riparian rights that are incidental to property ownership along a naturally occurring body of water wherein the lakebed is held in trust by the state.

Second, we consider the nature of the flowage waters, to which all agree the public trust doctrine applies, and whether the public trust doctrine grants Movriches the right to install a pier directly from their property onto or over the portion of the waterbed that is privately owned by Lobermeiers. In answering this inquiry, we consider whether and to what extent the existence of navigable waters over Lobermeiers’ privately-owned property affects Lobermeiers’ rights. On this issue, we conclude that the public trust doctrine conveys no private property rights, regardless of the presence of navigable water. In a flowage easement such as is at issue here, title to the property under the flowage may remain with the owner. While the public trust doctrine provides a right to use the flowage waters for recreational purposes, that right is held in trust equally for all. Furthermore, although the Lobermeiers’ property rights are modified to the extent that the public may use the flowage waters for recreational purposes, no private property right to construct a pier arises from the public trust doctrine.

Third, we consider whether the Wisconsin public trust doctrine when combined with the shoreline location of Movriches’ property allows Movriches to access and exit the flowage waters directly from their abutting property; or, whether, because Lobermeiers hold title to the flowage waterbed, Movriches must access the Flowage from the public access. On this issue, we conclude that as long as Movriches are using the flowage waters for purposes consistent with the public trust doctrine, their own property rights are sufficient to access and exit the Flowage directly from their shoreline property.

Accordingly, we affirm the court of appeals in part and reverse it in part.

Affirmed

Concur: ABRAHAMSON, J. concurs and dissents (opinion filed). R.G. BRADLEY, J. concurs and dissents, joined by A.W. BRALDEY, J. and ABRAHAMSON, J. (except Part II) (opinion filed).

Dissent: ABRAHAMSON, J. concurs and dissents (opinion filed). R.G. BRADLEY, J. concurs and dissents, joined by A.W. BRALDEY, J. and ABRAHAMSON, J. (except Part II) (opinion filed).

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WI Supreme Court

Case Name: State of Wisconsin v. Anton R. Dorsey

Case No.: 2018 WI 10

Focus: Sufficiency of Evidence

This is a review of an unpublished decision of the court of appeals, State v. Dorsey, No. 2015AP648-CR, unpublished slip op. (Wis. Ct. App. Dec. 6, 2016) (per curiam), affirming the Eau Claire County circuit court’s1 judgments of conviction for Anton R. Dorsey (“Dorsey”) for three crimes related to his domestic violence toward C.B. In a criminal action by the State, Dorsey was charged with four crimes relating to his domestic violence toward his then-girlfriend, C.B.: one count of strangulation and suffocation under Wis. Stat. § 940.235(1) (2013-14)2; one count of misdemeanor battery under Wis. Stat. § 940.19(1); one count of disorderly conduct under Wis. Stat. §§ 947.01 and 973.055(1); and one count of aggravated battery under §§ 940.19(6) and 973.055(1). All counts were charged with repeater enhancers.

There are two issues on this appeal. First, we consider what standard for admission of other-acts evidence applies under the recently amended language in Wis. Stat. § 904.04(2)(b)1. Second, we consider whether the evidence of Dorsey’s other acts was properly admitted under § 904.04(2)(b)1. As to the first issue, we conclude that the recently amended language allows admission of other-acts evidence with greater latitude under a Sullivan analysis. As to the second issue, we conclude that the circuit court did not erroneously exercise its discretion in admitting evidence of Dorsey’s other acts because the circuit court applied the proper legal standard and admission was a conclusion that a reasonable judge could reach based on the facts of the record. Thus, we affirm the decision of the court of appeals on other grounds.

Affirmed

Concur: R.G. BRADLEY, J. concurs, joined by KELLY, J. (opinion filed).

Dissent:
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Supreme Court Digests

United States Supreme Court

Case Name: District of Columbia, et al. v. Wesby, et al.

Case No.: 15-1485

Focus: Probable Cause

This case involves a civil suit against the District of Columbia and five of its police officers, brought by 16 individuals who were arrested for holding a raucous, latenight party in a house they did not have permission to enter. The United States Court of Appeals for the District of Columbia Circuit held that there was no probable cause to arrest the partygoers, and that the officers were not entitled to qualified immunity. We reverse on both grounds.

There is no dispute that the partygoers entered the house against the will of the owner. Nonetheless, the partygoers contend that the officers lacked probable cause to arrest them because the officers had no reason to believe that they “knew or should have known” their “entry was unwanted.” Ortberg v. United States, 81 A. 3d 303, 308 (D. C. 2013). We disagree. Considering the totality of the circumstances, the officers made an “entirely reasonable inference” that the partygoers were knowingly taking advantage of a vacant house as a venue for their late-night party. Pringle, supra, at 372.

Our conclusion that the officers had probable cause to arrest the partygoers is sufficient to resolve this case. But where, as here, the Court of Appeals erred on both the merits of the constitutional claim and the question of qualified immunity, “we have discretion to correct its errors at each step.” Ashcroft v. al-Kidd, 563 U. S. 731, 735 (2011); see, e.g., Plumhoff v. Rickard, 572 U. S. ___ (2014). We exercise that discretion here because the D. C. Circuit’s analysis, if followed elsewhere, would “undermine the values qualified immunity seeks to promote.” alKidd, supra, at 735.7.

The judgment of the D. C. Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.

Reversed and Remanded

Dissenting:

Concurring: ROBERTS, C. J., and KENNEDY, BREYER, ALITO, KAGAN, and GORSUCH, JJ., SOTOMAYOR, J., GINSBURG, J.,

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United States Supreme Court

Case Name: Artis v. District of Columbia

Case No.: 16-460

Focus: Time-barred – State Claim

The Supplemental Jurisdiction statute, 28 U. S. C. §1367, enables federal district courts to entertain claims not otherwise within their adjudicatory authority when those claims “are so related to claims . . . within [federal court competence] that they form part of the same case or controversy.” §1367(a). Included within this supplemental jurisdiction are state claims brought along with federal claims arising from the same episode. When district courts dismiss all claims independently qualifying for the exercise of federal jurisdiction, they ordinarily dismiss as well all related state claims. See §1367(c)(3). A district court may also dismiss the related state claims if there is a good reason to decline jurisdiction. See §1367(c)(1), (2), and (4). This case concerns the time within which state claims so dismissed may be refiled in state court. Section 1367(d), addressing that issue, provides: “The period of limitations for any [state] claim [joined with a claim within federal-court competence] shall be tolled while the claim is pending [in federal court] and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.”

The question presented: Does the word “tolled,” as used in §1367(d), mean the state limitations period is suspended during the pendency of the federal suit; or does “tolled” mean that, although the state limitations period continues to run, a plaintiff is accorded a grace period of 30 days to refile in state court post dismissal of the federal case? Petitioner urges the first, or stop-the-clock, reading. Respondent urges, and the District of Columbia Court of Appeals adopted, the second, or grace-period, reading.

In the case before us, plaintiff-petitioner Stephanie C. Artis refiled her state-law claims in state court 59 days after dismissal of her federal suit.1 Reading §1367(d) as a grace-period prescription, her complaint would be time barred. Reading §1367(d) as stopping the limitations clock during the pendency of the federal-court suit, her complaint would be timely. We hold that §1367(d)’s instruction to “toll” a state limitations period means to hold it in abeyance, i.e., to stop the clock. Because the D. C. Court of Appeals held that §1367(d) did not stop the D. C. Code’s limitations clock, but merely provided a 30-day grace period for refiling in D. C. Superior Court, we reverse the D. C. Court of Appeals’ judgment.

Reversed and Remanded

Dissenting: GORSUCH, J., KENNEDY, THOMAS, and ALITO, JJ.,

Concurring: ROBERTS, C. J., and BREYER, SOTOMAYOR, and KAGAN, JJ.

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United States Supreme Court

Case Name: National Association of Manufacturers v. Department of Defense et al.

Case No.: 16-299

Focus: Jurisdiction

What are the “waters of the United States”? As it turns out, defining that statutory phrase—a central component of the Clean Water Act—is a contentious and difficult task. In 2015, the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) tried their hand at proffering a definition through an agency regulation dubbed the Waters of the United States Rule (WOTUS Rule or Rule). The WOTUS Rule prompted several parties, including petitioner National Association of Manufacturers (NAM), to challenge the regulation in federal court. This case, however, is not about the substantive challenges to the WOTUS Rule. Rather, it is about in which federal court those challenges must be filed.

There are two principal avenues of judicial review of an action by the EPA. Generally, parties may file challenges to final EPA actions in federal district courts, ordinarily under the Administrative Procedure Act (APA). But the Clean Water Act (or Act) enumerates seven categories of EPA actions for which review lies directly and exclusively in the federal courts of appeals. See 86 Stat. 892, as amended, 33 U. S. C. §1369(b)(1). The Government contends that the WOTUS Rule fits within two of those enumerated categories: (1) EPA actions “in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345,” 33 U. S. C. §1369(b)(1)(E), and (2) EPA actions “in issuing or denying any permit under section 1342,” §1369(b)(1)(F). We disagree. The WOTUS Rule falls outside the ambit of §1369(b)(1), and any challenges to the Rule therefore must be filed in federal district courts.

We reverse the judgment of the Court of Appeals and remand the case with instructions to dismiss the petitions for review for lack of jurisdiction.

Reversed and Remanded

Dissenting:

Concurring: Unanimous

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