Weekly Case Digests — Feb. 26 – Mar. 2, 2018

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Vexol, S.A. de C.V, et al. v. Berry Plastics Corporation

Case No.: 17-2164

Officials: EASTERBROOK and SYKES, Circuit Judges, and BUCKLO, District Judge

Focus: Business Torts

This appeal challenges the district court’s dismissal under Fed. R. Civ. P. 12(b)(6) of business tort claims asserted under Mexican law. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Ralph D. Hathaway

Case No.: 17-1823

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

Focus: Restitution Order

Ralph Hathaway was convicted after a jury trial of knowingly transporting a minor across state lines to engage in criminal sexual activity and of traveling between states to do the same. See 18 U.S.C. § 2423(a), (b). At sentencing, the district court ordered Hathaway to pay restitution to his victim; Hathaway objected to part, but not all, of the restitution order. On appeal, Hathaway challenges the portions of the restitution order that he declined to contest in the district court. Because Hathaway waived his right to assert further objections to the restitution order, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: David Thorne v. Member Select Insurance Company

Case No.: 17-1377

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

Focus: Insurance – Scope of Coverage

David Thorne has a property insurance policy with Member Select Insurance Company. Thorne brought suit against Member Select when it denied his claim for coverage after his house burned down. A jury awarded Thorne $87,000, and the district court denied Member Select’s motion for judgment as a matter of law. Member Select appeals from that order. The denial of Member Select’s motion for judgment as a matter of law is AFFIRMED.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Miriam Grussgott v. Milwaukee Jewish Day School, Inc.,

Case No.: 17-2332

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

Focus: American with Disabilities Act Violation – Wrongful Termination

Miriam Grussgott, a Hebrew teacher, sued her former employer, Milwaukee Jewish Day School, for firing her in violation of the Americans with Disabilities Act. The school moved for summary judgment, arguing that the First Amendment’s ministerial exception to employment-discrimination laws, including the ADA, barred Grussgott’s suit. The district court granted the motion, concluding that the school is a religious institution and that Grussgott’s role there was ministerial. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Engineered Abrasives, Inc., v. American Machine Products & Services, Inc., et al.

Case No.: 17-1429

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

Focus: Settlement Agreement

The principals of American Machine Products are a father and son who left employment at Engineered Abrasives, Inc., to start a competing business in 2011. Bad blood seems to have marked the companies’ relationship ever since, to the apparent benefit of the lawyers who have represented them over years of bitter litigation. This case involves two lawsuits from that history.

In March 2015, Engineered Abrasives won a default judgment against American Machine and its principals for $714,814.04 and injunctive relief for stealing trade secrets and infringing trademarks. Five months later, Engineered Abrasives sued American Machine and its principals again. This time, with the help of the magistrate judge, the parties reached a settlement. American Machine’s insurer would pay $75,000 to Engineered Abrasives, and a permanent injunction would be entered against slander by American Machine or its principals with a $250,000 liquidated damages clause accompanying the injunction.

An interesting discussion could address why Engineered Abrasives would have released a $714,000 judgment for a payment of $75,000 and an injunction. Perhaps, as American Machine Products’ attorney suggested at oral argument, it was due to the long history of disputes and litigation between the parties. Or perhaps not. But without an ambiguity, the parties’ reasons are outside the scope of a court’s inquiry. We must enforce the release as the parties agreed. Accordingly, the judgment of the district court is AFFIRMED.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Willie B. Haynes

Case No.: 17-2044

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

Focus: Search Warrant – Probable Cause

Willie Haynes was indicted after sheriff’s deputies in Winnebago County executed a search warrant and found drugs and a loaded handgun in his house. Haynes pleaded guilty to possessing heroin and cocaine base with intent to distribute and to possessing a firearm in furtherance of a drug‐trafficking crime; he was sentenced to 108 months’ imprisonment. Haynes argues that the items found during the search should have been suppressed because, he says, the affidavit supporting the warrant did not establish probable cause. We affirm the judgment.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Thomas Mervyn v. Atlas Van Lines, Inc., et al.

Case No.: 17-2036

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

Focus: Breach of Contract

Atlas Van Lines (“Atlas”), an authorized interstate transporter of household goods, contracts with agents to perform its shipments. One of its many agents, Ace World Wide Moving, Inc. (“Ace”), leases trucks and driving services from owner-operators. In 2009, owner-operator Thomas Mervyn entered into a lease agreement with Ace to haul shipments for Atlas. Mervyn brought a lawsuit in 2013 against Atlas and Ace alleging breach of contract and violations of the federal Truth-In-Leasing regulations under 49 C.F.R. § 376.12(d). Atlas and Ace moved for summary judgment and the district court granted it in their favor. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Enrique Avina v. Todd Bohlen, et al.

Case No.: 17-1902

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

Focus: Excessive Force Claim

On October 1, 2012, officers Todd Bohlen and Mike Rohde of the Milwaukee Police Department arrested Enrique Avina for trespassing. As Bohlen was maneuvering Avina’s arms behind his back to place him in handcuffs, Avina’s right arm broke. Avina filed this suit against Bohlen, Rohde, and the City of Milwaukee (collectively, “Appellees”), alleging constitutional violations, as well as state-law assault and battery claims. Appellees moved for summary judgment, arguing that, despite Avina’s broken arm, the officers’ actions were objectively reasonable. The district court ruled in favor of Appellees on all counts, and Avina timely appealed.

The district court’s conclusion that Bohlen’s actions were objectively reasonable was the basis for its grant of summary judgment on the excessive force claim, as well as the state law assault and battery claim. Relatedly, because it found that there was no underlying constitutional violation, it held that the Monell claim could not survive, and did not conduct any further analysis of that claim’s merits. See Petty v. City of Chicago, 754 F.3d 416, 424–25 (7th Cir. 2014) (noting that a constitutional injury is a requirement of a Monell claim). Because we find that Bohlen’s actions were not objectively reasonable as a matter of law, the district court’s judgment on each of these counts must be reversed.

As to Rohde, however, we agree with the district court’s conclusions. Based on the undisputed facts regarding Rohde’s involvement in the incident, his conduct was objectively reasonable as a matter of law. It was undisputed that Rohde’s only contact with Avina came as he guided Avina across the street holding one of his arms. Rohde released Avina before his arm was broken, and there is no allegation that Avina suffered any other injury as a result of Rohde’s actions. Therefore, Rohde is entitled to judgment on both claims against him. For the foregoing reasons, the judgment of the district court is affirmed in part and reversed in part, and the case is remanded for further proceedings.

Affirmed in part. Reversed and remanded in part.

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7^th Circuit Court of Appeals

Case Name: John Dragus v. Reliance Standard Life Insurance Company

Case No.: 17-1752

Officials: BAUER, ROVNER, and SYKES, Circuit Judges

Focus: Long-term Disability Benefits

Plaintiff-appellant, John Dragus, brought suit against defendant-appellee, Reliance Standard Life Insurance Company (“Reliance”), under the Employee Retirement Income Security Act for denial of long-term disability (“LTD”) benefits. After the district court denied Dragus’ request for discovery outside the claim file record, both parties moved for summary judgment. Before the court ruled, Dragus filed a motion to supplement the claim record with a fully favorable Social Security Disability Insurance (“SSDI”) decision. The district court denied the motion to supplement and granted summary judgment in favor of Reliance. Dragus now appeals.

First, we turn to whether Reliance’s failure to render a timely decision compels de novo review. 29 C.F.R. § 2560.503- 1(b) imposes a penalty of the loss of discretionary authority on plan administrators for failing to maintain reasonable claims procedures. Because we find de novo review inapplicable, we next turn to whether Reliance’s denial of Dragus’ claim for LTD benefits was arbitrary and capricious. Under the arbitrary and capricious standard, we will uphold the district court’s decision so “long as (1) it is possible to offer a reasoned explanation, based on the evidence, for a particular outcome, (2) the decision is based on a reasonable explanation of relevant plan documents, or (3) the administrator has based its decision on a consideration of the relevant factors that encompass the important aspects of the problem.”

With the conflict of interest appropriately eliminated by Reliance, no contention of bad faith or fraud, and a well-reasoned decision supported by the evidence, we find Reliance’s decision was not arbitrary and capricious. Because this case is subject to the deferential arbitrary and capricious standard and not de novo review, we find that the district court did not err in denying to supplement the record.

Affirmed

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7^th Circuit Court of Appeals

Case Name: CNH Industrial America LLC, v. Jones Lang LaSalle Americas, Inc.

Case No.: 16-3800

Officials: BAUER, ROVNER, and SYKES, Circuit Judges

Focus: Breach of Contract

CNH Industrial America LLC (“CNH”), which manufactures farming and construction machinery (including tractors, combines, backhoes, and the like) under the New Holland brand name, hired the global real estate services firm Jones Lang LaSalle America, Inc. (“JLL”) to manage a corporate re-branding program that involved the replacement of signage at each of CNH’s more than 1,400 dealers in North America. The program ran into problems when it was discovered that the vinyl used in the new signs was defective, necessitating the re-manufacture and replacement of virtually all of the signs already installed. After the vinyl manufacturer walked away from its commitment to replace, at its own cost, the defective signs, CNH sued JLL for breach of the service agreement between the two firms. CNH alleged that JLL had failed to perform adequate quality control in the manufacturing of the signs, failed to negotiate the best possible warranty on the vinyl and the signs themselves, and failed to properly document and manage the warranties. Following a bench trial, the district court agreed that JLL had indeed breached its contractual obligations to CNH and that CNH had suffered damages in the amount of $5,482,735. Pursuant to the contract’s terms, the court reduced JLL’s liability to $3,026.361.60—the sum CNH had paid to JLL in project management fees—plus such other amounts as JLL might recover from third parties (including the vinyl manufacturer and the sign fabricators) in the future. JLL appeals, and we affirm the judgment in all respects.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Dariusz Jaworski, et al. v. Master Hand Contracts, Inc., et al.

Case No.: 16-3601

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

Focus: Frivolous Appeal

Dariusz Jaworski, Boguslaw Moskal, and Ryszard Bester were never paid for construction services they performed for Master Hand Contractors, Inc. They filed this lawsuit to force Master Hand to pay up. The district court sided with the plaintiffs through two partial summary judgments and a bench trial. Liability in the neighborhood of $340,000 now hangs over Master Hand’s head.

This appeal asks us to review certain elements of the judge’s various rulings. We decline to do so. Master Hand inexplicably failed to submit critical district-court opinions with its opening brief. This is a flagrant violation of Circuit Rule 30 that we cannot overlook.

Accordingly, we summarily affirm the judgment as a sanction. This remedy alone does not make things right. Master Hand’s appeal is patently frivolous. Its arguments, once deciphered, are nothing more than naked assertions. And they fail on their face. Jaworski and his coappellees should not have been made to defend against such an appeal. As an additional sanction, we order Master Hand to pay their attorneys’ fees and costs.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Alejandro Moreno v. Nancy Berryhill

Case No.: 17-1954

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

Focus: Supplemental Security Income and Disability Insurance Benefits

Alejandro Moreno appeals the order of the district court upholding the Social Security Administration’s denial of his applications for Supplemental Security Income and Disability Insurance Benefits. Mr. Moreno contends that, among other shortcomings in the Administrative Law Judge’s (“ALJ”) determination, he improperly relied on an outdated mental-health assessment and failed to incorporate all of Mr. Moreno’s limitations when posing the hypothetical to the vocational expert. We agree that the record contains new and significant evidence that could have affected Mr. Moreno’s mental-health assessment. We also agree that the ALJ’s hypothetical to the vocational expert failed to include Mr. Moreno’s limitations with respect to concentration, persistence, and pace. Accordingly, we remand the matter to the agency for further proceedings.

Remanded

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7^th Circuit Court of Appeals

Case Name: United States of America v. Adrian Bailey

Case No.: 17-1031

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

Focus: Sufficiency of Evidence

Adrian Bailey offered to sell marijuana to an informant who had already brokered the purchase of a firearm from him; the informant accepted the offer and purchased $40 worth of marijuana from Bailey contemporaneously with the firearm purchase. On that basis, Bailey was convicted after a bench trial of possessing a firearm in furtherance of a drug trafficking crime. See 18 U.S.C. § 924(c)(1)(A). Bailey appeals the conviction, contending that the facts do not tie the gun and the marijuana purchase together so as to demonstrate that the gun actually furthered the marijuana sale; as he sees it, his possession of the firearm was simply coincident with the marijuana transaction. We disagree. Because it was the opportunity to purchase a firearm that brought the informant to Bailey and made possible the secondary sale of marijuana to the informant, the facts support the finding that Bailey’s possession of the weapon furthered the marijuana sale. We therefore affirm his conviction.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Thomas Cureton

Case No.: 15-3575; 15-3581

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

Focus: Sentencing Guidelines

In his third round of appeals, we affirmed defendant Cureton’s convictions and sentences for using a firearm during a crime of violence and related crimes. 845 F.3d 323 (7th Cir. 2017). The Supreme Court granted certiorari, vacated, and remanded for reconsideration in light of Dean v. United States, 581 U.S. —, 137 S. Ct. 1170 (2017), which disapproved our circuit precedents such as United States v. Roberson, 474 F.3d 432 (7th Cir. 2007), barring judges sentencing defend‐ ants under 18 U.S.C. § 924(c) and other crimes from considering the mandatory minimum sentence under § 924(c) when deciding the sentences for other crimes. The Dean issue had not been raised in any of Cureton’s three sentencings, in his two earlier appeals, or in his briefs to this court in these appeals.

In our reviews of § 924(c) sentences imposed before Dean was decided, we have looked in the district court records for reliable signals as to whether the sentences were constrained by the Roberson rule. If it was clear that the sentence was not constrained by Roberson, we have simply affirmed the sentence.

That total sentence used the bottom of the guideline range for the crack cocaine charges and the mandatory minimum 84 months on the § 924(c) charge. Yet each round of sentencing has included the statutory maximum 240 months for the ransom demand, signaling that the judges were not inclined to reduce the sentence for that predicate crime. Also, the 360 months of non‐924(c) sentences take into account several very serious crimes. Finally, in the course of all three sentencings, including the opportunity to reduce the sentence after the initial remand, neither the original sentencing judge nor the judge on remand has given any sign that he felt constrained.

Under these circumstances, a limited Paladino remand should suffice. We order a limited remand so that the district court can determine whether it would have imposed the same sentence on Cureton, knowing that in light of Dean, it may consider the mandatory sentence under § 924(c) when deciding the sentences for other crimes, or whether the court wishes to have a new opportunity to exercise its discretion and judgment in a complete resentencing. We shall retain jurisdiction over these appeals pending the district court’s response.

Remanded

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7^th Circuit Court of Appeals

Case Name: Jeffrey  Martensen v. Chicago Stock Exchange

Case No.: 17-2660

Officials: EASTERBROOK and BARRETT, Circuit Judges, and STADTMUELLER, District Judge.

Focus: Dodd-Frank Act – Whistleblowers

Jeffrey Martensen used to be a supervisor in the Chicago Stock Exchange’s unit responsible for examining compliance with trading regulations. He was fired in mid-2016 and contends in this suit that his discharge violates 15 U.S.C. §78u–6(h), a part of the Dodd- Frank Act that protects whistleblowers.

Martensen’s complaint does not allege that he reported to the Securities and Exchange Commission any fraud or other unlawful activity at the Exchange. The district judge summarily dismissed the suit, ruling that only a person who has reported “a violation of the securities laws to the Commission” (§78u–6(a)(6)) is covered by §78u–6(h). See 2017 U.S. Dist. LEXIS 87621 (N.D. Ill. June 7, 2017). The judge recognized that some courts have held that a report to the SEC is unnecessary but thought that view incompatible with §78u– 6(a)(6). Martensen proposed to file an amended complaint alleging that he had indeed reported fraud to the SEC, but the judge blocked that step, declaring that the absence of de- tail made an amendment pointless.

Both sides have filed post-argument memoranda discussing Verfuerth. The Stock Exchange contends that it requires affirmance. Martensen, by contrast, contends that it supports him because he has reported fraud to the SEC. He tells us that his amended complaint would allege that on January 13, 2014, he reported securities fraud by filling out a Form TCR on the Commission’s website.

Complaints need not plead law. See, e.g., Johnson v. Shel- by, 135 S. Ct. 346 (2014). But appellate filings must cover material legal issues. Martensen needed to identify a rule, subject to the SEC’s jurisdiction, that either “required” or “protected” his internal complaint about his superior’s directive. He has not done so. It may be that some rule does require or protect the sort of report that Martensen made, but appellate judges need not take unguided tours through stock ex- changes’ regulations in the hope that something will turn up. That’s a job for counsel—and Martensen, though representing himself, is a lawyer. Because Martensen has not shown that his grievance was within the scope of clause (iii), other questions can be left to Digital Realty Trust (and, if not answered there, to some future case).

Affirmed

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7^th Circuit Court of Appeals

Case Name: Spencer Riley v. Victor Calloway

Case No.: 17-1831

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

Focus: Statutory Interpretation – Armed Habitual Criminal

Spencer Riley was acquitted of first-degree murder by an Illinois jury, but he later was convicted at a bench trial of being an “armed habitual criminal.” The state had charged these crimes together but, with defense counsel’s acquiescence, obtained a severance to proceed separately with the armed habitual criminal count. The state appellate court affirmed Riley’s conviction on that count, and the Supreme Court of Illinois declined further review. Riley then filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 claiming that, in light of his acquittal of murder, the state was collaterally estopped from prosecuting him as an armed habitual criminal because of Ashe v. Swenson, 397 U.S. 436 (1970). Riley had pursued, but lost, that same argument on direct appeal, and the district court denied relief on the ground that the appellate court did not unreasonably apply clearly established federal law in rejecting his Ashe claim. We agree with the district court’s assessment and affirm its judgment.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Ladmarald Cates v. United States of America

Case No.: 16-1778

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

Focus: Ineffective Assistance of Counsel and Jury Instructions

On a summer day in 2010, Iema Lemons called 911 to report that her neighbors were vandalizing her home on Milwaukee’s north side. Officer Ladmarald Cates and his partner responded, but the investigation went seriously off track. By an odd series of events, Cates and Lemons were left alone in her home, and the officer sexually assaulted her.

Cates was charged with two federal crimes: (1) depriving Lemons of her civil rights under color of law, 18 U.S.C. § 242; and (2) using or carrying a firearm in relation to that crime, id. § 924(c)(1)(A). The civil-rights charge was premised on the sexual assault by a law-enforcement officer, but the government also alleged that Cates’s conduct amounted to aggravated sexual abuse, id. § 2241(a), which if proven would dramatically increase the maximum penalty from one year to life in prison, § 242. A jury convicted Cates on the civil-rights count, acquitted him on the firearm count, and found by special verdict that he committed aggravated sexual abuse.

Soon after trial Cates lost confidence in his lawyer, so the judge allowed her to withdraw and appointed a new attorney. A few days before sentencing, the new lawyer moved to extend the deadline for postverdict motions, which had expired several months earlier. The judge denied the motion, holding that the lawyer waited too long to file it and had not shown excusable neglect. Cates was sentenced to 24 years in prison.

The new lawyer continued to represent Cates on direct appeal but inexplicably challenged only the denial of his untimely request for more time to file postverdict motions. We rejected that doomed argument and expressed concern that counsel had raised no challenge to Cates’s conviction or sentence. United States v. Cates, 716 F.3d 445, 450–51 (7th Cir. 2013). The case now returns on Cates’s petition for collateral relief under 28 U.S.C. § 2255. He argues, among other things, that his trial and appellate counsel were constitutionally ineffective for failing to challenge the jury instruction on aggravated sexual abuse. The judge rejected that claim, finding no error in the instruction.

We reverse. As relevant here, aggravated sexual abuse is knowingly causing another person to engage in a sex act by “using force against that other person.” § 2241(a)(1). At the government’s request, the judge instructed the jury that “force” includes not just physical force but also psychological coercion and may even be inferred from a disparity in size between the defendant and victim. That contradicts both the statutory text and our precedent. “Force” under § 2241(a)(1) means physical force, not psychological coercion or threats. United States v. Boyles, 57 F.3d 535, 544 (7th Cir. 1995). The jury instruction relaxed the government’s burden and permitted the jurors to find force even if they concluded that Cates only used psychological coercion or an implied threat based on his size or status as a police officer. Cates’s trial and appellate counsel made key legal errors in not challenging the flawed instruction.

And the errors were prejudicial. There is a reasonable probability that a properly instructed jury would find the evidence insufficient to prove aggravated sexual abuse. That, in turn, would cap Cates’s maximum penalty at one year.

Reversed and Remanded

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7^th Circuit Court of Appeals

Case Name: Craig Cunningham v. Michael Montes, et al.

Case No.: 17-2516

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

Focus:

Michael Montes owns two houses, one in California and the other in Wisconsin. After filing this suit, Craig Cunningham arranged for service of process at the Wisconsin address. No one came to the door. The process server called Montes, who refused to provide his current location. After an ex parte submission from Cunningham, the district judge authorized service by publication. 2017 U.S. Dist. LEXIS 26804 (W.D. Wis. Feb. 27, 2017). Cunningham then published notice in periodicals that circulate only in the Midwest. When Montes did not answer the complaint, the district court entered a default.

After learning about this case from a defendant in another of Cunningham’s suits, Montes asked the court to set aside the default. See Fed. R. Civ. P. 55(c). The judge declined, writing that “Montes has rather persistently sought to evade service in both California and Wisconsin”, 2017 U.S. Dist. LEXIS 111115 at *5 (W.D. Wis. July 18, 2017), and entered a judgment for more than $175,000.

Montes filed an affidavit stating that his principal residence is the house in California and listing all dates when he and his wife were in Wisconsin during 2016 and the first half of 2017. If the statements in the affidavit are true, then Montes was in California when the process server arrived in Wisconsin. Cunningham suspects that Montes is lying; maybe the district judge does too, but the judge did not find that the statements in this affidavit are false. If Montes is playing a shell game—claiming to be in Wisconsin when process servers arrive in California, and in California when process servers arrive in Wisconsin—that would support a finding that he is evading service. Given the lack of any effort to serve him in California, however, it would be difficult to make such a finding in this case. Montes appeared in this litigation promptly after learning of its existence; that is a mark in his favor. We cannot exclude the possibility that he has tried to play games, but the absence of any factual finding to that effect (after adversarial rather than ex parte procedure) requires further proceedings. Unless new evidence shows that Wis. Stat. §801.11(1) has been satisfied despite Cunningham’s decision not to attempt service in California, the de- fault must be vacated and the case decided on the merits.

Vacated and Remanded

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7^th Circuit Court of Appeals

Case Name: United States of America v. Teovonni Cunningham

Case No.: 16-3543

Officials: FLAUM, RIPPLE, and MANION, Circuit Judges.

Focus: Sentencing Guidelines

Teovonni Cunningham pleaded guilty to one count of conspiracy to possess stolen firearms and ammunition, in violation of 18 U.S.C. §§ 371 and 922(j); one count of possession of stolen firearms and ammunition, in violation of § 922(j); and one count of possession of firearms by a felon, in violation of § 922(g)(1). The district court sentenced him to 60 months on the conspiracy count, 12 months on the § 922(j) count, and 116 months on the felon‐in‐possession count, all to run consecutively; his total sentence, therefore, was 188 months’ imprisonment.  Mr. Cunningham appeals his sentence, contending that the district court’s limitation on his presentation of character witness testimony at sentencing violated Federal Rule of Criminal Procedure 32(i)(4)(A)(ii) and that the resulting sentence is substantively unreasonable.

We affirm the judgment of the district court. Federal Rule of Criminal Procedure 32(i)(4)(A)(ii) does not govern the calling of character witnesses at sentencing, and the district court did not abuse its discretion in its consideration of Mr. Cunningham’s mitigation evidence. The sentence imposed was the product of the district court’s careful and compassionate consideration of all the evidence in this very difficult sentencing situation. Accordingly, we affirm its judgment.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: Jennifer L. Nerison, et al v. Wisconsin Farmers Union, Inc.

Case No.: 2016AP2127

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

Focus: Negligence Claim

Jennifer and Robert Nerison appeal a summary judgment dismissing their safe place and negligence claims. The Nerisons sued the owners of a campground for damages arising out of injuries Jennifer sustained when she fell down an unlit stairway in the staff cabin. We conclude summary judgment was appropriate as to the Nerisons’ safe place claim. However, we conclude genuine issues of material fact preclude summary judgment as to the Nerisons’ negligence claim. We therefore affirm in part and reverse in part, and remand for further proceedings.

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WI Court of Appeals – District III

Case Name: Dorothy E. McAllister v. John Christman

Case No.: 2016AP2157

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

Focus: Trusts & Estates – Will Interpretation

The Estate of Jerome J. Trofka, by its personal representative Dorothy E. McAllister, appeals an order interpreting the provisions of Trofka’s “Last Will and Testament” pertaining to a real estate parcel. We conclude the circuit court correctly interpreted the will and, therefore, affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Orlando Lloyd Cotton

Case No.: 2016AP2211-CR

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

Focus: Sentence Modification

Orlando Lloyd Cotton appeals a judgment of conviction entered on a jury verdict and an order denying his postconviction motion for a new trial or sentence modification. Cotton was convicted of possessing cocaine with intent to deliver and possessing marijuana with intent to deliver, both as a party to a crime, and for maintaining a drug house. He argues that the evidence was insufficient to support the convictions and that he received ineffective assistance from his trial counsel. We affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Erik M. Smith

Case No.: 2016AP2453-CR

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

Focus: Pleas & Sentencing – Plea Withdrawal

Erik Smith appeals a judgment of conviction for three felonies, entered pursuant to his guilty pleas, and an order denying his postconviction motion. Smith seeks plea withdrawal, arguing there was an insufficient factual basis for his pleas to support territorial jurisdiction in the State of Wisconsin. We agree with the State that Smith’s pleas were supported by a sufficient factual basis for territorial jurisdiction based on the State’s clear allegation—made both in the criminal complaint and orally by the prosecutor at the plea hearing—that the crimes occurred in Wisconsin. We therefore affirm.

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WI Court of Appeals – District I

Case Name: North Mayfair 1, LLC, et al. v. Wisconsin Department of Transportation

Case No.: 2017AP256

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

Focus: Damages

North Mayfair appeals an order of the trial court excluding evidence of damages resulting from a change in road access stemming from a Department of Transportation (DOT) construction project. We affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. J.D.V.

Case No.: 2017AP1057

Officials: SEIDL, J.

Focus: Sufficiency of Evidence

Joseph appeals an order adjudicating him delinquent on one count of battery. He argues the evidence was insufficient to support that adjudication because his act of striking a fellow student was privileged as self-defense. We disagree with Joseph and affirm.

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WI Court of Appeals – District I

Case Name: Ronald Collison v. Andrew Wyderka, et al.

Case No.: 2017AP1426

Officials: BRASH, J.

Focus: Statute of Frauds – Unjust Enrichment

Andrew Wyderka appeals from a judgment awarding $2593.00 to Ronald Collison. Ronald had paid the money towards the balance on a credit card belonging to Andrew and Andrew’s former wife, Alissa Collison, who is Ronald’s daughter.

The trial court made this determination based on the theory of unjust enrichment. On appeal, Andrew argues three issues: (1) that the statute of frauds was violated because there was no written agreement regarding repayment to Ronald; (2) that unjust enrichment was not pled in this case, and Wisconsin’s pleading requirements require that Andrew be afforded the opportunity to rebut this claim; and (3) that there is insufficient evidence to support the judgment, in particular the absence of a signed agreement regarding repayment to Ronald. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. L.M.O.

Case No.: 2017AP1814

Officials: KESSLER, J.

Focus: Termination of Parental Rights

L.M.O. appeals the order terminating his parental rights to his son, D.A.M. He also appeals the order denying his postdisposition motion to vacate the termination order. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. L.J.

Case No.: 2017AP2380; 2017AP2381; 2017AP2382

Officials: KESSLER, J.

Focus: Termination of Parental Rights

L.J. appeals the orders terminating her parental rights to her children, I.N.J., N.M.K., and T.K. She contends that the circuit court failed to properly consider whether her children have a substantial relationship with either her or her family members. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Alejandro D. Sanchez-Morales

Case No.: 2016AP2033-CR; 2016AP2034-CR

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

Focus: Plea Withdrawal and Sentence Modification

In these consolidated matters, Alejandro D. Sanchez-Morales appeals from judgments entered upon his guilty pleas to five counts across two cases and an order denying his postconviction motion for plea withdrawal and sentence modification. Sanchez-Morales argues that the circuit court improperly denied (1) his motions to exclude and suppress evidence seized from his cell phone, (2) his postconviction motion for plea withdrawal based on the ineffective assistance of counsel, and (3) his postconviction sentence modification motion. We reject his arguments and affirm.

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WI Court of Appeals – District II

Case Name: Mark D. Adams, M.D., v. Anesthesiology Associates of Wisconsin, S.C.,

Case No.: 2017AP210

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

Focus: Breach of Employment Contract

Anesthesiologist Mark D. Adams, M.D., alleged that his employer, Anesthesiology Associates of Wisconsin, S.C. (AAW), breached his employment contract, forcing him to resign. The circuit court saw it differently and granted summary judgment in favor of AAW. Adams appeals from that order. We agree with the circuit court and affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Marquis T. Williams

Case No.: 2017AP320-CR

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

Focus: Restitution

Marquis T. Williams pled guilty in 2014 to first degree reckless homicide, was sentenced to prison for seven years, and was ordered to pay $25,142.80 in restitution. Williams does not challenge the imposition of restitution nor its amount, see WIS. STAT. § 973.20 (2015-16), but he does object to the Department of Corrections (DOC) deducting funds from his prison account to pay his restitution obligation. Williams moved his sentencing court to order DOC to stop taking funds from his prison account to pay his restitution obligation. The circuit court denied Williams’ request. We affirm, as the circuit court, sitting in its role as the sentencing court, did not have competency to address Williams’ motion. As an inmate, Williams’ recourse is to the inmate complaint review system (ICRS), WIS. ADMIN. CODE ch. DOC 310 (Dec. 2014), which, if denied at the administrative level, allows Williams to bring a writ of certiorari to the circuit court. As Williams did not utilize nor exhaust his administrative remedies under the ICRS, the circuit court, sitting as the sentencing court, did not have competency to entertain Williams’ motion.

Williams also challenges the collection of funds from his prison account as a violation of his judgment of conviction. We disagree. The judgment of conviction provides that “[i]f Probation/Extended Supervision is revoked and/or a prison term ordered, outstanding financial obligations shall be collected pursuant to statutory provisions, including deductions from inmate prison monies.”4 With the inclusion of the word “or,” the language clearly states that “[i]f … a prison term [is] ordered, outstanding financial obligations shall be collected … including deductions from inmate prison monies.”5 As previously discussed, the DOC can collect restitution from an inmate’s account, and nothing in the judgment of conviction provides otherwise. Once the court orders restitution, it is within the DOC’s authority to collect it from an inmate. See WIS. STAT. §§ 301.31, 301.32(1), 303.01(8).

Recommended for Publication

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WI Court of Appeals – District II

Case Name: County of Walworth v. Brendan J. Hehir

Case No.: 2017AP1437

Officials: GUNDRUM, J.

Focus: Real Estate – Zoning

On August 31, 2016, the County of Walworth cited Brendan J. Hehir for illegally operating as a “lodge” a single-family property he owned in a residentially zoned area. Following a court trial, the circuit court determined inter alia that even if Hehir had operated a lodge as alleged, such operation was lawful as the continuation of a nonconforming use. Because we conclude the circuit court’s determination was correct, we affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Angela J. Coker

Case No.: 2017AP1555

Officials: GUNDRUM, J.

Focus: Motion to Suppress Evidence Denied

Angela Coker appeals her judgment of conviction for operating a motor vehicle while intoxicated, arguing the circuit court erred in denying her motion to suppress evidence. Specifically, Coker asserts the arresting trooper lacked reasonable suspicion to conduct the traffic stop leading to her arrest because the information he received from dispatch was unreliable due to its anonymous nature and lack of corroboration. Of note, Coker does not contend that if the information was sufficiently reliable it did not provide the trooper with reasonable suspicion to conduct the stop; therefore, we do not address that question. Because we conclude the trooper properly relied upon the information, we affirm.

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WI Court of Appeals – District IV

Case Name: Ditech Financial, LLC. v. Countrywide Home Loans, Inc., et al.

Case No.: 2019AP2371

Officials: Sherman, Blanchard and Fitzpatrick, JJ.

Focus: Foreclosure – Personal Representative

Michael Stacey, personal representative of the Estate of James G. Stacey, seeks review of a circuit court order affirming a sheriff’s sale of real property owned by the estate. The notice of appeal filed on behalf of the estate was signed by Michael Stacey, who does not appear to be an attorney licensed to practice law in the State of Wisconsin. We hold that a nonlawyer personal representative of an estate may not represent the interests of the estate in a mortgage foreclosure proceeding or an appeal therefrom before a Wisconsin court. Accordingly, the notice of appeal filed by Michael Stacey was ineffective to initiate a valid appeal on behalf of the estate, and we dismiss the appeal for lack of jurisdiction.

Recommended for Publication

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WI Court of Appeals – District IV

Case Name: Rosaura Choncoa v. Vanessa Buen Rostro, et al.

Case No.: 2017AP900

Officials: SHERMAN, J.

Focus: Sufficiency of Evidence

Rosaura Choncoa appeals, pro se, a judgment of the small claims court awarding $800 to Vanessa Buen Rostro and Angel Castro-Cruz (collectively, the respondents), also pro se, stemming from a loan from Choncoa to the respondents. For the reasons explained below, I affirm.

Choncoa contends the circuit court erred in awarding the respondents $800. Choncoa argues first that the court’s finding that the respondents made payments to her totaling $2,900 “defies reason” because the respondents failed to present documentary evidence that they made payments. We uphold a circuit court’s findings of fact unless they are “clearly erroneous.” WIS. STAT. § 805.17(2). A circuit court’s factual findings are not clearly erroneous if they are supported by any credible evidence in the record, or any reasonable inferences from that evidence. See Insurance Co. of N. Am. v. DEC Int’l, Inc., 220 Wis. 2d 840, 845, 586 N.W.2d 691 (Ct. App. 1998).

Choncoa also argues that the court erred in awarding the respondents $800 because the respondents did not counterclaim for an award of $800 in their counterclaim. However, Choncoa has not cited any authority stating a legal basis for her argument. This court does not address arguments unsupported by references to legal authority. State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992); see also WIS. STAT. RULES 809.19(1)(e) and 809.83(2).

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WI Court of Appeals – District IV

Case Name: Susan Blesener, et al. v. William Linton

Case No.: 2016AP2117

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

Focus: Insurance Claims – Liability

William Linton appeals the trial court’s judgment holding that the insurance policies issued to him by Liberty Mutual Fire Insurance Company and Liberty Mutual Insurance Company (collectively “Liberty”) do not afford coverage for misrepresentation and breach of contract claims asserted against him in a civil action. Buyers Susan Blesener and Richard Champagne alleged Linton made untrue statements in a real estate condition report (RECR).

Linton challenges the trial court’s summary judgment determination that, based on the intentional nature of Linton’s alleged misrepresentations, there was no “occurrence” under the policies and, therefore, there was no coverage under the Liberty policies. Linton contends that the trial court erred in focusing on his alleged liability-creating conduct and the complaint’s theory of liability rather than the alleged factual cause of the property damage. Based on our independent consideration of the undisputed facts, the issues presented and the applicable law, we agree with the trial court and, therefore, affirm.

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WI Court of Appeals – District I

Case Name: Charles Brown, et al. v. The City of Milwaukee, Garfield Avenue Festivals, Inc., et al.

Case No.: 2016AP2303

Officials: Kessler, Brash and Dugan, JJ.

Focus: Recreational Immunity

The Estate of Claudia Sheppard-Brown and Charles Brown (collectively, the Estate) appeal from orders that dismissed their personal injury lawsuit and granted summary judgment to Garfield Avenue Festivals, Inc. and Andre Lee Ellis (the Garfield parties) and to the City of Milwaukee. The circuit court determined that recreational immunity shielded the Garfield parties and the City from the Estate’s claims. We conclude that issues of material fact exist as to whether Claudia Sheppard-Brown was engaged in recreational activity when she was injured. Accordingly, we reverse the orders and remand for further proceedings.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Angus Murray McArthur

Case No.: 2016AP2315-CR; 20162316-CR; 2016AP2317-CR

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

Focus: Ineffective Assistance of Counsel

Angus Murray McArthur appeals from a judgment of conviction, entered upon a jury verdict, of multiple offenses committed against his former girlfriend, K.W. He also appeals from the order denying his postconviction motion on the grounds of ineffective assistance of counsel. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Lee Vang

Case No.: 2017AP75-CR; 2017AP76-CR; 2017AP77-CR

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

Focus: Ineffective Assistance of Counsel

Lee Vang appeals a judgment of conviction and an order denying his postconviction motion without a hearing. A jury convicted Vang of seven counts: second-degree sexual assault, victim intimidation, battery, two counts of bail jumping, and two counts of disorderly conduct.

The charges arose from two incidents. In December 2013, Vang threatened police and multiple family members when his wife, J., reported domestic violence to police. In June 2014, Vang battered and sexually assaulted. The six counts in those cases were set for jury trial on October 29, 2014, but Vang failed to appear. A new bail-jumping charge was filed. That case was consolidated with the first two cases, and Vang proceeded to trial. The trial took place from May 18 through May 21, 2015.

Vang argues that he is entitled to a Machner hearing and that the trial court erred in denying his motion without a hearing. His claims of ineffective assistance of trial counsel are based on counsel’s failure to object at trial to the admission of three pieces of evidence: (1) a police officer’s testimony that repeated statements the victim made to him about the June 2014 assault; (2) Vang’s own testimony, elicited on direct examination, about participating in what Vang described as “an illegal street race” for money; and (3) the State’s question to Vang, on cross-examination, about his knowledge that a Milwaukee television news channel reported Vang’s failure to appear at his 2014 trial date in a local segment called “Wisconsin’s Most Wanted.”

We conclude that the record, as a matter of law, conclusively demonstrates Vang is not entitled to relief, so it was a matter of the trial court’s discretion whether to permit a hearing. We further conclude that the postconviction court did not erroneously exercise its discretion when it denied Vang an evidentiary hearing. We therefore affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Derrick Yawsa Robinson

Case No.: 2017AP285-CR

Officials: Kessler, Brash and Dugan, JJ.

Focus: Ineffective Assistance of Counsel

Derrick Yawsa Robinson appeals from a judgment of conviction for three drug-related felonies. Robinson, who pled guilty pursuant to a plea agreement, also appeals from an order denying his postconviction motion. Robinson asks this court to vacate his three convictions and remand for a trial, arguing that remedy is appropriate in light of the State’s actions with respect to an amended information and the ineffective assistance of trial counsel. In the alternative, Robinson seeks resentencing on grounds that it was improper for his trial counsel, the State, and the trial court to meet outside his presence just prior to the sentencing hearing. We reject Robinson’s arguments and affirm.

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WI Court of Appeals – District I

Case Name: Carlton A. Jackson v. Ina G. Jackson

Case No.: 2017AP309

Officials: BRENNAN, P.J.

Focus: Estate – Meritorious Motion

Carlton A. Jackson appeals from an order dismissing with prejudice his small claims action against Ina G. Jackson. The order further prohibited him from filing any further civil action related to the estate of the parties’ mother “other than a meritorious motion in 2014PR1256,” the relevant probate case. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Joshua L. Tanner

Case No.: 2016AP1706-CR; 2016AP1707-CR

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

Focus: Postconviction Motion Denied

In these consolidated appeals, Joshua Tanner appeals from judgments convicting him of two counts of being party to the crime of retail theft as a repeater and from orders denying his postconviction motion challenging his convictions and proof of his repeater status. We affirm the circuit court in all respects.

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WI Court of Appeals – District III

Case Name: Lena Sara Heistad v. State Farm Mutual Automobile Insurance Company, et al.

Case No.: 2016AP2173

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

Focus: Amended Complaint

This appeal involves an order denying leave to file a third amended complaint, and the denial of a motion for reconsideration of that decision. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Gary L. Johnson

Case No.: 2017AP467-CR

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

Focus: Plea Withdrawal

Gary L. Johnson appeals a judgment convicting him on his pleas of no contest to one count of attempted second-degree intentional homicide and two counts of aggravated battery, all with use of a dangerous weapon. Postconviction, the circuit court allowed him to withdraw his plea on the attempted homicide charge on grounds that the plea taking did not state the elements of that offense, such that Johnson pled to a nonexistent offense. On the State’s motion for reconsideration, the court reversed itself and reinstated Johnson’s conviction. Johnson also appeals the order granting the State’s motion.

We conclude the circuit court got it right the first time. Accordingly, we reverse the judgment of conviction and the order granting the motion for reconsideration and remand the matter to the circuit court so that Johnson may withdraw his no-contest plea to attempted second-degree intentional homicide.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Lance P. Howard

Case No.: 2017AP677-CR; 2017AP678-CR

Officials: GUNDRUM, J.

Focus: Sentencing Guidelines

In these consolidated appeals, Lance P. Howard appeals from judgments and orders denying his motions for a new sentencing hearing. He contends the circuit court erred in modifying his sentence credit to reflect consecutive sentences because the sentencing court intended concurrent sentences. For the following reasons, we affirm.

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WI Court of Appeals – District II

Case Name: Manitowoc County Human Services Department v. J.K.,

Case No.: 2017AP2371

Officials: REILLY, P.J.

Focus: Termination of Parental Rights

J.K. appeals from an order terminating her parental rights to her son, M.B. She argues that the circuit court erroneously granted partial summary judgment during the grounds phase of the termination of parental rights (TPR) proceeding. As there are no genuine issues of material fact that entitled J.K. to a trial, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Jimale Alonzo Laws

Case No.: 2017AP275-CR

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

Focus: Sufficiency of Evidence – Unreasonable Seizure

Jimale Alonzo Laws appeals a judgment of conviction for possession of a firearm by a felon. Laws argues that the circuit court erred in denying his motion to suppress evidence on the ground that the evidence was obtained through an unreasonable seizure. We reject Laws’ arguments and affirm.

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WI Court of Appeals – District IV

Case Name: Mile Bluff Medical Center, Inc., v. Village of Necedah, et al.

Case No.: 2017AP751

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

Focus: Statutory Interpretation

Mile Bluff Medical Center, Inc., is a non-profit entity that owns and operates a hospital in Mauston. Mile Bluff challenges the taxation of separate properties: three health clinics that Mile Bluff purchased in 2013. Mile Bluff seeks an exemption for these three clinics under WIS. STAT. § 70.11(4m)(a). One of the § 70.11(4m)(a) exemption requirements is that the property not be used as a “doctor’s office.” We agree with the circuit court that Mile Bluff fails to show that the clinics are not “doctor[s’] office[s]” within the meaning of the exemption statute. Accordingly, we affirm.

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WI Court of Appeals – District IV

Case Name: City of Verona v. Edward A. Sieverding

Case No.: 2017AP1813

Officials: FITZPATRICK, J.

Focus: Failure to File Notice of Appeal

The Verona Municipal Court issued a judgment against Edward Sieverding, finding him guilty of operating a motor vehicle after suspension, operating without insurance, operating while intoxicated, and operating with a prohibited alcohol content. Sieverding tried to appeal the municipal court decision to the Dane County Circuit Court, but he did not give the City of Verona notice of the appeal. The circuit court granted the City’s motion to dismiss the appeal for lack of jurisdiction due to Sieverding’s failure to give notice to the City. On appeal, Sieverding argues that he complied with the requirements of WIS. STAT. § 800.14 because he notified the municipal clerk who, in turn, notified the City of the appeal via email. In the alternative, Sieverding argues that the City waived its right to object to the improper notice. I reject Sieverding’s arguments and affirm the circuit court’s dismissal of the appeal.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Office of Lawyer Regulation v. George W. Curtis, Jr.,

Case No.: 2018 WI 13

Focus:  Attorney Disciplinary Proceedings

We review the report of the referee, Richard M. Esenberg, regarding the Office of Lawyer Regulation’s (OLR) complaint in this matter against Attorney George W. Curtis, Jr. At all times relevant to this matter, Attorney Curtis operated the Curtis Law Office in Oshkosh, Wisconsin (hereafter, the “firm”), as a sole proprietorship. The referee recommended that Attorney Curtis be suspended for 120 days in connection with his willful failure to pay his personal income taxes for several years and for various trust account violations committed at his firm. The referee recommended the dismissal of three counts of misconduct: one related to his trust account record keeping, another related to his failure to remit employee and employer contributions to his law firm’s 401(k) plan, and another related to his failure to remit payroll taxes for his firm’s employees. The referee proposed that the court place certain conditions on Attorney Curtis’ post-suspension practice of law, and that the court reduce the full costs of this proceeding ($16,886.87 as of October 31, 2017) by one-quarter. The OLR did not seek the payment of restitution in these proceedings, and the referee did not recommend it.

Because no appeal has been filed, we review the referee’s report pursuant to Supreme Court Rule (SCR) 22.17(2). After conducting our independent review of the matter, we adopt the referee’s findings of fact and conclusions of law. We agree with the referee that Attorney Curtis’ license to practice law in Wisconsin should be suspended for a four-month period. We also agree with the referee that Attorney Curtis should be required to pay three-quarters of the costs of this proceeding, which will result in a cost assessment of $12,665.15. We impose certain conditions upon the reinstatement of Attorney Curtis’ license to practice law in Wisconsin. Finally, we decline to order restitution for reasons explained below.

Affirmed

Concur:

Dissent:

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WI Supreme Court

Case Name: State of Wisconsin v. Shannon Olance Hendricks

Case No.: 2018 WI 15

Focus: Plea Withdrawal

Shannon Olance Hendricks seeks to withdraw the guilty plea he entered to one count of child enticement. He claims the circuit court’s failure to tell him the legal definition of “sexual contact” at his plea hearing violated Wis. Stat. § 971.08’s requirement that a pleading defendant must understand the nature of the charge. Because sexual contact is not an element of the crime of child enticement, and because the record shows Hendricks understood the nature of the charge to which he pled guilty, the plea colloquy comported with both § 971.08 and State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986), and Hendricks is not entitled to an evidentiary hearing. Accordingly, we affirm the court of appeals decision upholding the circuit court’s order denying Hendricks’ motion for plea withdrawal. Moreover, we decline the State’s request to modify the Bangert requirements.

Affirmed

Concur:

Dissent: ABRAHAMSON, J. dissents, joined by A.W. BRADLEY,

1. (opinion filed).

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WI Supreme Court

Case Name: State of Wisconsin v. Daniel J. H. Bartelt

Case No.: 2018 WI 16

Focus: Motion to Supress

This review concerns the point in time at which a person is “in custody” for purposes of Miranda.  Daniel J.H. Bartelt asks us to overturn a decision of the court of appeals, affirming the circuit court’s judgment entered in favor of the State regarding Bartelt’s motion to suppress incriminating statements, and concluding that Bartelt was not in custody at the time the statements were made.

Bartelt presents two issues: first, whether Bartelt’s confession to a serious crime transformed his custody status from noncustodial to “in custody;” and second, whether Bartelt’s request for counsel was unequivocal such that police officers violated his Fifth Amendment rights when they questioned him the following day without counsel present.

On the first issue we conclude that, under the totality of the circumstances attendant to his interview, Bartelt’s confession did not transform his custody status. Rather, Bartelt was not in custody until Detectives Joel Clausing and Aaron Walsh of the Washington County Sheriff’s Department took his cell phone, approximately ten minutes after his confession, and instructed him to remain in the interview room. Because we determine that Bartelt was not in custody until this point, which was after his alleged request for counsel, we need not and do not reach the issue of whether his alleged request for counsel was unequivocal. Accordingly, we affirm the court of appeals.

Decision

Concur:

Dissent: A.W. BRADLEY, J. dissents, joined by ABRAHAMSON,

1. (opinion filed).

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Supreme Court Digests

United States Supreme Court

Case Name: CNH Industrial N.V., et al. v. Jack Reese, et al.

Case No.: 17-515

Focus: Collective-bargaining Agreement

Three Terms ago, this Court’s decision in M&G Polymers USA, LLC v. Tackett, 574 U. S. ___ (2015), held that the Court of Appeals for the Sixth Circuit was required to interpret collective-bargaining agreements according to “ordinary principles of contract law.” Id., at ___ (slip op., at 1). Before Tackett, the Sixth Circuit applied a series of “Yard-Man inferences,” stemming from its decision in International Union, United Auto, Aerospace, & Agricultural Implement Workers of Am. v. Yard-Man, Inc., 716 F. 2d 1476 (1983). In accord with the Yard-Man inferences, courts presumed, in a variety of circumstances, that collective-bargaining agreements vested retiree benefits for life. See Tackett, 574 U. S., at ___–___ (slip op., at 7– 10). But Tackett “reject[ed]” these inferences “as inconsistent with ordinary principles of contract law.” Id., at ___ (slip op., at 14).

In this case, the Sixth Circuit held that the same Yard- Man inferences it once used to presume lifetime vesting can now be used to render a collective-bargaining agreement ambiguous as a matter of law, thus allowing courts to consult extrinsic evidence about lifetime vesting. 854 F.3d 877, 882–883 (2017). This analysis cannot be squared with Tackett. A contract is not ambiguous unless it is subject to more than one reasonable interpretation, and the Yard-Man inferences cannot generate a reasonable interpretation because they are not “ordinary principles of contract law,” Tackett, supra, at ___ (slip op., at 14). Because the Sixth Circuit’s analysis is “Yard-Man re-born re-built, and re-purposed for new adventures,” 854 F. 3d, at 891 (Sutton, J., dissenting), we reverse.

Reversed

Dissenting: Sutton, J., dissenting

Concurring: GINSBURG, J., concurring

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United States Supreme Court

Case Name: State of Montana v. State of Wyoming, et al.

Case No.: 583 U. S 137

Focus: Yellowstone River Compact Violation – Judgment Awards

Judgment is awarded against the State of Wyoming and in favor of the State of Montana for violations of the Yellowstone River Compact resulting from Wyoming’s reduction of the volume of water available in the Tongue River at the Stateline between Wyoming and Montana by 1300 acre feet in 2004 and 56 acre feet in 2006. Judgment is awarded in the amount of $20,340, together with pre- judgment and post-judgment interest of seven percent (7%) per annum from the year of each violation until paid. Costs are awarded to Montana in the amount of $67,270.87.

Wyoming shall pay these damages, interest, and costs in full not later than 90 days from the date of entry of this Judgment. Wyoming shall make its payment into an account specified by Montana to be used for improvements to the Tongue River Reservoir or related facilities in Mon- tana. Montana may distribute these funds to a state agency or program, a political subdivision of the State, a nonprofit corporation, association, and/or a charitable organization at the sole discretion of the Montana Attorney General in accordance with the laws of the State of Montana, with the express condition that the funds be used for improvements to the Tongue River Reservoir or related facilities in Montana.

Except as herein provided, all claims in Montana’s Bill of Complaint are denied and dismissed with prejudice.

Denied and Dismissed with Prejudice

Dissenting:

Concurring:

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United States Supreme Court

Case Name: Digital Realty Trust, Inc. v. Somers

Case No.: 16-1276

Focus: Dodd-Frank – Statutory Interpretation

Respondent Paul Somers alleges that petitioner Digital Realty Trust, Inc. (Digital Realty) terminated his employment shortly after he reported to senior management suspected securities-law violations by the company. Somers filed suit, alleging, inter alia, a claim of whistleblower retaliation under Dodd-Frank. Digital Realty moved to dismiss that claim on the ground that Somers was not a whistle- blower under §78u–6(h) because he did not alert the SEC prior to his termination. The District Court denied the motion, and the Ninth Circuit affirmed. The Court of Appeals concluded that §78u–6(h) does not necessitate recourse to the SEC prior to gaining “whistleblower” status, and it accorded deference to the SEC’s regulation un- der Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837.

The question presented: Does the anti-retaliation provision of Dodd-Frank extend to an individual who has not reported a violation of the securities laws to the SEC and therefore falls outside the Act’s definition of “whistleblower”? Pet. for Cert. (I). We answer that question “No”: To sue under Dodd-Frank’s anti-retaliation provision, a per- son must first “provid[e] . . . information relating to a violation of the securities laws to the Commission.” §78u–6(a)(6).

Reversed and Remanded

Dissenting:

Concurring: SOTOMAYOR, J., filed a concurring opinion, in which BREYER, J., joined. THOMAS, J., filed an opinion concurring in part and concurring in the judgment, in which ALITO and GORSUCH, JJ., joined.

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United States Supreme Court

Case Name: Class v. United States

Case No.: 16-424

Focus: Guilty Pleas – Constitutionality

A federal grand jury indicted petitioner, Rodney Class, for possessing firearms in his locked jeep, which was parked on the grounds of the United States Capitol in Washington, D. C. See 40 U. S. C. §5104(e)(1) (“An individual . . . may not carry . . . on the Grounds or in any of the Capitol Buildings a firearm”). Appearing pro se, Class asked the District Court to dismiss the indictment. He alleged that the statute, §5104(e), violates the Second Amendment and the Due Process Clause. After the District Court dismissed both claims, Class pleaded guilty to “Possession of a Firearm on U. S. Capitol Grounds, in violation of 40 U. S. C. §5104(e).” App. 30. A written plea agreement set forth the terms of Class’ guilty plea, including several categories of rights that he agreed to waive. The agreement said nothing about the right to challenge on direct appeal the constitutionality of the statute of conviction. After conducting a hearing pursuant to Rule 11(b) of the Federal Rules of Criminal Procedure, the District Court accepted Class’ guilty plea and sentenced him. Soon thereafter, Class sought to raise his constitutional claims on direct appeal. The Court of Appeals held that Class could not do so because, by pleading guilty, he had waived his constitutional claims.

The question is whether a guilty plea by itself bars a federal criminal defendant from challenging the constitutionality of the statute of conviction on direct appeal. We hold that it does not. Class did not relinquish his right to appeal the District Court’s constitutional determinations simply by pleading guilty.

Reversed and Remanded

Dissenting: ALITO, J., filed a dissenting opinion, in which KENNEDY and THOMAS, JJ., joined.

Concurring:

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United States Supreme Court

Case Name: Rubin, et al. v. Islamic Republic of Iran, et al.

Case No.: 16-534

Focus: FSIA – Immunity – Property

The Foreign Sovereign Immunities Act of 1976 (FSIA) grants foreign states and their agencies and instrumentalities immunity from suit in the United States (called jurisdictional immunity) and grants their property immunity from attachment and execution in satisfaction of judgments against them. See 28 U. S. C. §§1604, 1609. But those grants of immunity are subject to exception.

Petitioners hold a judgment against respondent Islamic Republic of Iran pursuant to one such exception to jurisdictional immunity, which applies where the foreign state is designated as a state sponsor of terrorism and the claims arise out of acts of terrorism. See §1605A. The issue presented in this case is whether certain property of Iran, specifically, a collection of antiquities owned by Iran but in the possession of respondent University of Chicago, is subject to attachment and execution by petitioners in satisfaction of that judgment. Petitioners contend that the property is stripped of its immunity by another provision of the FSIA, §1610(g), which they maintain provides a blanket exception to the immunity typically afforded to the property of a foreign state where the party seeking to attach and execute holds a §1605A judgment.

We disagree. Section 1610(g) serves to identify property that will be available for attachment and execution in satisfaction of a §1605A judgment, but it does not in itself divest property of immunity. Rather, the provision’s language “as provided in this section” shows that §1610(g) operates only when the property at issue is exempt from immunity as provided elsewhere in §1610. Petitioners cannot invoke §1610(g) to attach and execute against the antiquities at issue here, which petitioners have not established are exempt from immunity under any other provision in §1610.

Affirmed

Dissenting:

Concurring:

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United States Supreme Court

Case Name: Murphy v. Smith, et al.

Case No.: 16-1067

Focus: Attorney’s Fees – Prevailing Prisoners

This is a case about how much prevailing prisoners must pay their lawyers. When a prisoner wins a civil rights suit and the district court awards fees to the prisoner’s attorney, a federal statute says that “a portion of the [prisoner’s] judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney’s fees awarded against the defendant. If the award of attorney’s fees is not greater than 150 percent of the judgment, the excess shall be paid by the defendant.” 42 U. S. C. §1997e(d)(2). Whatever else you might make of this, the first sentence pretty clearly tells us that the prisoner has to pay some part of the attorney’s fee award before financial responsibility shifts to the defendant. But how much is enough? Does the first sentence allow the district court discretion to take any amount it wishes from the plaintiff ’s judgment to pay the attorney, from 25% down to a penny? Or does the first sentence instead mean that the court must pay the attorney’s entire fee award from the plaintiff’s judgment until it reaches the 25% cap and only then turn to the defendant?

To avoid reading §1997e(d)(2) as affording entirely rudderless discretion, Mr. Murphy contends that district courts should apportion fees in proportion to the defendant’s culpability. When a defendant has acted egregiously, he says, the court should lower the plaintiff ’s responsibility for the fee award and increase the defendant’s—even if that means applying only a “nominal” amount of the plaintiff ’s judgment toward the fee. But precisely none of this appears in §1997e(d)(2) or, for that matter, enjoys any analogue in §1988’s lodestar analysis or even the old 12- factor approach. Whatever you might have to say about Mr. Murphy’s culpability formula as a matter of policy, it has no roots in the law. Nor is it clear, for what it’s worth, that the culpability approach would even help him. The district court never cited the defendants’ culpability (or any other reason) to justify taking only 10% rather than 25% from Mr. Murphy’s judgment. And it’s tough to see what the choice of 10% might have had to do with the defendant’s culpability in this case. The district court actually remitted the jury’s punitive damages award— suggesting that, if anything, the defendants’ culpability had been already amply addressed. We think the interpretation the court of appeals adopted prevails. In cases governed by §1997e(d), we hold that district courts must apply as much of the judgment as necessary, up to 25%, to satisfy an award of attorney’s fees.

Affirmed

Dissenting:

Concurring:
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