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Weekly Case Digests — April 30-May 4, 2018

By: WISCONSIN LAW JOURNAL STAFF//May 4, 2018//

Weekly Case Digests — April 30-May 4, 2018

By: WISCONSIN LAW JOURNAL STAFF//May 4, 2018//

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7th Circuit Digests

7th Circuit Court of Appeals

Case Name: United States of America v. Olayinka I. Sunmola

Case No.: 17-1299

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

Focus: Sentencing

A grand jury charged Olayinka Sunmola with an eight-count indictment in relation to an online dating scheme. Three days into trial, Sunmola pleaded guilty to all eight counts. Applying a number of enhancements and taking into consideration other § 3553(a) factors, the district court sentenced Sunmola to 324 months in jail with an adjusted restitution payment of $1,669,050.98. Sunmola now appeals the district court’s application of four sentencing enhancements, restitution calculation, and application of general deterrence in his final sentencing. For the following reasons, we affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Robert L. Breuder v. Board of Trustees of Community College District No. 502, et al.

Case No.: 17-1577; 17-2215

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

Focus: Due Process Violation and Jurisdiction

The College of DuPage is a two-year community college in Glen Ellyn, Illinois. In 2008 the Board of Trustees of Community College District No. 502, which operates the College, hired Robert L. Breuder as the College’s president. After extensions, his contract ran through 2019. But in October 2015 newly elected members of the Board, who had campaigned on a pledge to remove Breuder, discharged him without notice or a hearing. Resolutions adopted by the Board stated that Breuder had committed misconduct. The Board did not offer him a hearing and has refused to comply with clauses in his contract covering severance pay and retirement benefits. Breuder then filed this suit, which rests not only on Illinois contract and defamation law but also on 42 U.S.C. §1983. Breuder contends that his sacking without a hearing, but with defamatory statements, deprived him of both liberty and property without due process of law.

This brings us to the second appeal. Public officials are entitled to qualified immunity from damages under §1983 unless they transgress clearly established law. See, e.g., Kisela v. Hughes, 138 S. Ct. 1148 (2018) (collecting decisions). The Board’s members contend that the validity of Breuder’s contract was at least uncertain, so that they could not have violated any clearly established rule. There are two problems with this contention.

This wraps up the issues presented by the appeals certified under §1292(b) or authorized by the invocation of qualified immunity. The individual appellants ask us to go on and decide whether Breuder has a good defamation claim under Illinois law. They contend that “pendent appellate jurisdiction” permits us to act across the board because all issues are “inextricably intertwined” in the sense that all arise from Breuder’s discharge. That approach, if followed, would pre\y much extinguish the final-judgment requirement of 28 U.S.C. §1291. The Supreme Court has told us that interlocutory appeals complicate and delay the administration of justice, and the category of permissible appeals should not be expanded. See, e.g., Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100 (2009). And it has thrown cold water on “pendent appellate jurisdiction” in particular. Swint v. Chambers County Commission, 514 U.S. 35, 43–51 (1995). Although Swint did not kill the doctrine—it survived in Clinton v. Jones, 520 U.S. 681, 707 n.41 (1997), at least with respect to Presidents— Swint concluded that the doctrine must be strictly limited to avoid undermining the discretion that §1292(b) gives to district judges and appellate judges. See also Microsoft Corp. v. Baker, 137 S. Ct. 1702, 1714 (2017). Extending the doctrine to allow state-law claims to receive interlocutory review any time a constitutional claim permits a qualified-immunity appeal would do far too much damage to both §1291 and §1292(b). We decline the invitation.

On the subjects properly before us, the district court’s decisions are affirmed. Other matters may be reviewed on appeal from the final decision. Appeal No. 17-1577 is dismissed for lack of jurisdiction to the extent that appellants seek to present any issues beyond their request for qualified immunity.

Affirmed in part. Dismissed in part.

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7th Circuit Court of Appeals

Case Name: Lafayette Linear v. Village of University Park, Illinois, et al.

Case No.: 17-1940

Officials: EASTERBROOK and ROVNER, Circuit Judges, and GRIESBACH, District Judge.

Focus: Due Process Violation

University Park hired Lafayette Linear as its Village Manager under a four-year contract that ran through May 2015, concurrent with the term of the Village’s Mayor. In October 2014 the Village extended Linear’s contract for a year. But by spring 2015 relations between Linear and the Village’s elected officials had soured. In April 2015 Mayor Covington was reelected, and her new term began in May. That month the Board of Trustees decided that Linear would no longer be Village Manager. His contract provides for six months’ severance pay if the Board discharges him for any reason except criminality. But the Village has taken the position that the contract’s extension was forbidden by Illinois law and that it owes Linear nothing, because his only valid term expired in May 2015.

Linear contends in this federal suit under 42 U.S.C. §1983 that the Board violated the Due Process Clause of the Fourteenth Amendment by not giving him a hearing before his discharge. The Village replies that he has not been discharged; it just declined to renew his contract—and Linear does not contend that he had a legitimate claim of entitlement to a renewal. Compare Board of Regents v. Roth, 408 U.S. 564 (1972), with Perry v. Sindermann, 408 U.S. 593 (1972). The district court decided that, as a maZer of Illinois law, the extension past May 2015 was invalid. The judge understood 65 ILCS 5/3.1-30-5 and 5/8-1-7 to prohibit any contract for a village manager from lasting beyond the end of a mayor’s term of office. As a result, the district court held, the Village did not deprive Linear of a property interest, and without a property interest he had no federal right to a hearing.

In another decision released today, we conclude that a different public employee asserting a right to a hearing before discharge is entitled to litigate in federal court. Breuder v. Board of Trustees, No. 17-1577 (7th Cir. Apr. 17, 2018). The reasons for the disparate outcomes bear emphasis.

Linear’s complaint presents claims under state as well as federal law. For the reasons we have explained, the federal claim rests on a mistaken appreciation of the role the Constitution plays in enforcing state-law rights. The district court relinquished supplemental jurisdiction of Linear’s state-law claims. The state judiciary is free to address those claims from scratch; the district judge’s conclusions about the effects of 65 ILCS 5/3.1-30-5 and 5/8-1-7 lack both preclusive and precedential effect.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Scott C. Redman

Case No.: 17-1357

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

Focus: Sentencing

From September 2015 until his arrest in February 2016, Scott Redman posed as a psychiatrist at a Chicago medical clinic using the name and license number of Dr. Julian Lopez Garcia. He “treated” patients who suffered from a variety of mental illnesses, and he “prescribed” a variety of controlled substances. Redman is not a doctor; indeed, he did not attend school past the tenth grade.

A jury found Redman guilty of wire fraud, aggravated identity theft, furnishing false and fraudulent material information in documents required under the federal drug laws, and distributing controlled substances. The district court sentenced Redman to 157 months’ imprisonment for these offenses.

On appeal, Redman does not contest his convictions, but he claims that the district court erred in determining the appropriate sentence. Finding no error in Redman’s sentence, we affirm the decision of the district court.

Affirmed

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7th Circuit Court of Appeals

Case Name: Planned Parenthood of Indiana and Kentucky, Inc., et al. v. Commissioner of the Indiana State Department of Health, et al.

Case No.: 17-3163

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

Focus: Statutory Interpretation

On March 24, 2016, the Governor of Indiana signed into law House Enrolled Act No. 1337 (HEA 1337), which created new provisions and amended others that regulate abortion procedures within Indiana. Shortly thereafter, Planned Parenthood of Indiana and Kentucky (“PPINK”) filed a lawsuit against the Commissioner of the Indiana State Department of Health, the prosecutors of Marion, Lake, Monroe and Tippecanoe Counties, and members of the Medical Licensing Board of Indiana (collectively, “the State”). PPINK sought declaratory and injunctive relief from three particular parts of the law: (1) the new provisions titled “Sex Selective and Disability Abortion Ban,” Ind. Code § 16-34-4 (2016), which prohibit a person from performing an abortion if the person knows the woman is seeking an abortion solely for one of the enumerated reasons (collectively, “the nondiscrimination provisions”); (2) an added provision to the informed consent process, instructing those performing abortions to inform women of the non-discrimination provisions, § 16-34-2-1.1(a)(1)(K); and (3) numerous amendments to the provisions dealing with the disposal of aborted fetuses, §§ 16-34-3-4(a); 16-41-16-4(d); 16-41-16-5; 16-41-16-7.6 (collectively, “the fetal disposition provisions”).

The district court initially entered a preliminary injunction on June 30, 2016, and both parties subsequently filed motions for summary judgment. The court granted PPINK’s motion for summary judgment on September 22, 2017, declaring the three parts of HEA 1337 unconstitutional and permanently enjoining the State from enforcing them.

We affirm. The non-discrimination provisions clearly violate well-established Supreme Court precedent holding that a woman may terminate her pregnancy prior to viability, and that the State may not prohibit a woman from exercising that right for any reason. Because the non-discrimination provisions are unconstitutional, so too is the provision that a woman be informed of them. Additionally, the amended fetal disposition provisions violate substantive due process because they have no rational relationship to a legitimate state interest.

Affirmed

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7th Circuit Court of Appeals

Case Name: City of Chicago v. Jefferson B. Sessions III

Case No.: 17-2991

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

Focus: Separation of Powers

This appeal is from the grant of a preliminary injunction in favor of the City of Chicago (the “City”) and against Jefferson Beauregard Sessions III, the Attorney General of the United States, enjoining the enforcement of two conditions imposed upon recipients of the Edward Byrne Memorial Justice Assistance Grant Program (the “Byrne JAG program”). See 34 U.S.C. § 10151 (formerly 42 U.S.C. § 3750). The Byrne JAG grant, named after a fallen New York City police officer, allocates substantial funds annually to provide for the needs of state and local law enforcement, including personnel, equipment, training, and other uses identified by those entities. The Attorney General tied receipt of the funds to the grant recipient’s compliance with three conditions which the City argued were unlawful and unconstitutional. The district court agreed with the City as to two of the three conditions—the “notice” condition mandating advance notice to federal authorities of the release date of persons in state or local custody who are believed to be aliens, and the “access” condition which required the local correctional facility to ensure agents access to such facilities and meet with those persons. Compliance with those conditions in order to receive the funding awarded under the Byrne JAG grant would require the allocation of state and local resources, including personnel. The district court granted the preliminary injunction as to those two conditions, applying it nationwide. The court subsequently denied the Attorney General’s motion to stay the nationwide scope of the injunction, and this court denied the stay on appeal. The Attorney General now appeals that preliminary injunction.

Our role in this case is not to assess the optimal immigration policies for our country; that is not before us today. Rather, the issue before us strikes at one of the bedrock principles of our nation, the protection of which transcends political party affiliation and rests at the heart of our system of government—the separation of powers.

The founders of our country well understood that the concentration of power threatens individual liberty and established a bulwark against such tyranny by creating a separation of powers among the branches of government. If the Executive Branch can determine policy, and then use the power of the purse to mandate compliance with that policy by the state and local governments, all without the authorization or even acquiescence of elected legislators that check against tyranny is forsaken. The Attorney General in this case used the sword of federal funding to conscript state and local authorities to aid in federal civil immigration enforcement. But the power of the purse rests with Congress, which authorized the federal funds at issue and did not impose any immigration enforcement conditions on the receipt of such funds. In fact, Congress repeatedly refused to approve of measures that would tie funding to state and local immigration policies. Nor, as we will discuss, did Congress authorize the Attorney General to impose such conditions. It falls to us, the judiciary, as the remaining branch of the government, to act as a check on such usurpation of power. We are a country that jealously guards the separation of powers, and we must be ever‐vigilant in that endeavor.

Decision

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7th Circuit Court of Appeals

Case Name: Daniel Jackson v. Shawn Curry, et al.

Case No.: 17-1898

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

Focus: Qualified Immunity

Daniel Jackson spent time in custody on a wrongful murder conviction. He sued Shawn Curry and Keith McDaniel, the police officers who interrogated him, for coercing his confession. The officers moved for dismissal on qualified immunity. The district court denied that motion, and the officers appeal. Lacking jurisdiction, we dismiss this appeal.

Decision

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: Jamie Hielkema v. Forrest Construction, Inc., et al.

Case No.: 2016AP1300

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

Focus: Insurance Claim – Negligence

Jamie Hielkema was injured when she fell from a second-story doorway. She brought, via a direct action, common law negligence and negligence per se claims, as well as a claim for an “enhanced injury “against Secura Insurance, A Mutual Company (Secura). Hielkema’s enhanced injury and negligence per se claims were dismissed on summary judgment. After a jury found Hielkema was more causally negligent than Secura’s insured, the circuit court dismissed Hielkema’s common law negligence claim against Secura. Hielkema appeals.

On appeal, Hielkema contends the circuit court erred by dismissing on summary judgment her claims for an enhanced injury and negligence per se. Hielkema also seeks a new jury trial on her general negligence claim arguing the circuit court erred by failing to dismiss a biased juror and by allowing the admission of “speculative intoxication evidence.” We disagree and affirm the judgment.

Secura cross-appeals, arguing the circuit court erred by denying its motion for summary judgment as to Hielkema’s general negligence claim. Because we affirm the judgment in Secura’s favor, Secura’s cross-appeal is moot.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Michael A. Farrell

Case No.: 2016AP2043; 2016AP2044

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

Focus: Ineffective Assistance of Counsel

In these consolidated appeals, Michael A. Farrell, pro se, appeals from a trial court order denying his WIS. STAT. § 974.06 (2015-16) motion for postconviction relief. He also appeals from an order denying his motion for reconsideration. Farrell argues that his postconviction counsel provided constitutionally deficient representation at the postconviction Machner hearing and by failing to raise three additional allegations of trial counsel ineffectiveness. We reject Farrell’s arguments and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Larry L. Garner

Case No.: 2016AP2201-CR

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

Focus: Sentencing Guidelines

Larry L. Garner appeals from a judgment of conviction for two counts of armed robbery, party to a crime (PTAC), and one count of felony murder. Garner challenges the judgment of conviction entered following the second jury trial on the charges in April 2014. He also appeals the trial court’s order denying his postconviction motion. On appeal, Garner argues that the trial court (1) violated his constitutional right to confrontation by permitting the testimony of co-defendant Vanetta C. Gholson-Wells from the first trial to be read to the jury at the second trial; (2) erred by allowing the State to file the amended information without first filing a motion; and (3) imposed an improper sentence because it relied on inaccurate information and sentenced him more harshly as punishment for going to trial. We disagree and affirm. These background facts provide context for the issues raised on appeal. Additional relevant facts are included in our discussion.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Cheneye Leshia Edwards

Case No.: 2017AP633-CR

Officials: BRENNAN, P.J.

Focus: Sentencing Guidelines – Expunction

Cheneye Leshia Edwards appeals from a judgment of conviction and an order denying his motion for expunction. On appeal, he argues solely that the postconviction court wrongly denied his postconviction motion for expungement. Edwards had requested expunction at the time of sentencing, but the court had denied the request. He did not appeal the denial at that time. But after successfully completing probation, Edwards filed a postconviction motion in which he (1) requested expunction and argued that the postconviction court possessed inherent power to grant expunction after sentencing; and (2) in the alternative, sought reversal of the expunction denial order and a new expunction hearing on the grounds that the trial court had improperly exercised discretion in denying expunction at sentencing. The postconviction court denied his motion, and he appealed. We conclude that Edwards prevails on this second argument and therefore do not reach his inherent powers argument. The sentencing court failed to properly exercise its discretion in denying expunction at sentencing. Accordingly, we reverse that portion of the postconviction order denying expunction and remand to that court for a new hearing on expunction eligibility.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. William H. Craig

Case No.: 2017AP651-CR

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

Focus: Abuse of Discretion – Protective Order

William Craig appeals from a protective order, granted under WIS. STAT. § 971.23(6) (2015-16), pertaining to the recorded interview of a child victim. He contends the circuit court erroneously exercised its discretion by granting the State’s motion for a protective order over his objection, without first holding an evidentiary hearing.

We agree with the State that a circuit court is not required, in all circumstances, to hold an evidentiary hearing before granting a motion for a protective order under WIS. STAT. § 971.23(6). Instead, the court has discretion to decide whether a hearing is necessary in the specific case before it. Here, however, the circuit court erroneously exercised its discretion by failing to provide any rationale for its decision to grant the State’s motion without first holding a hearing. We therefore reverse the court’s order and remand for the court to exercise its discretion in deciding whether to hold a hearing on the State’s motion.

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WI Court of Appeals – District III

Case Name: Town of Lincoln v. City of Whitehall

Case No.: 2017AP684-AC

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

Focus: Statutory Contiguousness Claim

The Town of Lincoln appeals a grant of summary judgment in favor of the City of Whitehall concerning a grassroots annexation procedure known as “direct annexation by unanimous approval.” The Town sought a declaratory judgment that annexation ordinances passed by the City detaching territory from the Town were invalid. The circuit court concluded the Town, under the facts of this case, was statutorily barred from challenging the ordinances on any basis except the requirement that the annexed territory be contiguous to the annexing municipality. The court subsequently granted the City’s summary judgment motion on the Town’s contiguousness claim.

Under the undisputed facts here, we first conclude the circuit court properly dismissed all of the Town’s claims other than the statutory contiguousness claim. Based upon the interplay between various provisions of the direct annexation statute—namely, WIS. STAT. § 66.0217(6)(d)1., (6)(d)2., and (11)(c)—we conclude a town is limited in a court action to challenging contiguity and county parallelism, the latter of which is not at issue here. Given this statutory bar, the court properly concluded that only the Town’s challenge to contiguity remained viable.

We also conclude the circuit court properly granted summary judgment on the Town’s contiguousness claim. Contiguity between the annexed territory and the annexing municipality is satisfied, at a minimum, in instances where there is a significant degree of physical contact between the two. That is plainly the case here, where the annexed territory shares an approximately three-quarter-mile border with the City.

We further conclude summary judgment in the City’s favor was appropriate to the extent statutory contiguity also requires that the annexed territory not be arbitrarily selected for inclusion. Because the petition at issue was owner initiated, the relevant case law instructs that a town can challenge arbitrariness only if the annexation is of an exceptional shape, or if the annexing municipality is itself either a petitioner or the “real controlling influence” behind the annexation. We conclude, as a matter of law, that the annexed territory here is of an “unexceptional shape” that does not warrant further scrutiny of the territory’s boundaries. Further, based on the record evidence before us, no factfinder could reasonably conclude the City was either a petitioner or the “real controlling influence” directing the annexation proceedings. Consequently, we affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Shawn A. Brown

Case No.: 2017AP711-CR

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

Focus: Motion to Suppress Evidence Denied

Shawn Brown appeals a judgment convicting him of possession of methamphetamine and an order denying his postconviction motion. He contends the circuit court erred by denying his motion to suppress evidence obtained from a search of his vehicle. The suppression motion is based on his argument that the traffic stop was unreasonably prolonged to allow time for a drug-sniffing dog to arrive and complete its search. Because we conclude the circuit court properly denied the motion to suppress based on the good faith doctrine, we need not decide whether the officer had reasonable suspicion to detain Brown beyond the time required for the officer to complete the mission of the traffic stop or whether the brief detainer was lawful.

The officer first observed Brown’s vehicle unoccupied with the motor running in an area known for drug trafficking. Later the officer stopped Brown’s vehicle for a stop sign violation and issued citations and warnings for that violation, lack of insurance, and failure to notify the Department of Motor Vehicles of an address change. A canine unit arrived while the officer was processing the traffic citations, and the officer delayed giving Brown the citations for an unknown period of time in order to discuss with the dog handler why the officer suspected that Brown possessed drugs. The officer then returned to Brown’s vehicle and handed Brown the citations, after which the dog signaled the presence of drugs within five seconds.

Brown’s arguments are based on Rodriguez v. United States, 135 S. Ct. 1609 (2015), which was released six weeks after Brown’s traffic stop. In Rodriguez, the Court overturned a decision of the Eighth Circuit Court of Appeals and resolved a division among lower courts on the question whether police may extend an otherwise completed traffic stop absent reasonable suspicion in order to conduct a dog sniff. The Eighth Circuit had upheld a delay of seven to eight minutes to facilitate the dog sniff, labeling that delay a “de minimis intrusion on Rodriguez’s personal liberty.” United States v. Rodriguez, 741 F.3d 905, 907-08 (8th Cir. 2014). The Supreme Court held the “tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s ‘mission’—to address the traffic violation that warranted the stop and attend to related safety concerns.” Rodriguez, 135 S. Ct. at 1614 (citation omitted). The stop may last no longer than necessary to effectuate the purpose of the traffic stop. Id. The Court concluded the officers’ authority to seize the individual “ends when tasks tied to the traffic infraction are—or reasonably should have been—completed.” Id. Therefore, the question is not whether the dog sniff occurred before or after the officer issued a ticket, but whether conducting the sniff prolonged the stop. Id. at 1616.

Therefore, at the time the officer detained Brown, both Wisconsin law, and federal law, authorized a brief detention beyond the time needed to write the citations. As a result, regardless of whether the officer detained Brown beyond the time necessary to complete the traffic stop without reasonable suspicion, we nonetheless conclude the circuit court properly denied the motion to suppress the evidence obtained from the canine search based on the good faith exception to the exclusionary rule. See State v. Dearborn, 2010 WI 84, ¶33, 327 Wis. 2d 252, 786 N.W.2d 97. The exclusionary rule does not apply where the officers relied in good faith on clear and settled law that was only subsequently changed. Id., ¶34. At the suppression hearing, the officer testified he was following department policy and training regarding canine sniffs. The officer had the right to follow the Wisconsin Supreme Court’s decision in Arias and cannot be faulted for failing to anticipate the Supreme Court’s clarification in Rodriguez to existing case law. Because the officer acted in the objectively reasonable belief that his conduct did not violate the Fourth Amendment, the exclusionary rule does not apply. Dearborn, 327 Wis. 2d 252, ¶33. Judgment and order affirmed.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. S.S.

Case No.: 2017AP2097; 2017AP2098

Officials: DUGAN, J.

Focus: Termination of Parental Rights

S.S. appeals from the orders terminating her parental rights to L.F. and G.F. and the orders denying her postdisposition motion. She contends that the trial court erroneously exercised its discretion in considering the factors for determining the best interests of the children. She further asserts that trial counsel was ineffective for failing to ask for a bonding assessment, to call L.F. and G.F. to testify about their wishes and to request an adjournment in order to have the foster mother appear and testify at the dispositional hearing. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Jacqueline M. Datka

Case No.: 2017AP1886-CR

Officials: NEUBAUER, C.J

Focus: OWI – Probable Cause

Jacqueline M. Datka appeals from a judgment of conviction for operating a motor vehicle while intoxicated (OWI) with a passenger under sixteen years of age and challenges the denial of her motion to suppress. She asserts that the officer’s request for a preliminary breath test (PBT) was not supported by the requisite probable cause. Because an eyewitness report, observations by officers, and indicators from field sobriety tests supported the request, we affirm.

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WI Court of Appeals – District II

Case Name: City of Berlin v. Ricardo A. Adame

Case No.: 2017AP2130

Officials: GUNDRUM, J.

Focus: Sufficiency of Evidence

Ricardo A. Adame appeals from his judgment of conviction for operating a motor vehicle while under the influence of an intoxicant and with a prohibited alcohol concentration. He contends his conviction should be vacated and this matter dismissed because the circuit court “erroneously admitted the blood test result into evidence.” We disagree and affirm.

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WI Court of Appeals – District II

Case Name: County of Fond Du Lac v. William A. Tavs

Case No.: 2017AP2405

Officials: GUNDRUM, J.

Focus: Dismissal – Lack of Authority

County of Fond du Lac appeals from the circuit court’s dismissal of its case against William A. Tavs, asserting the court lacked the authority to dismiss the case. Tavs has filed no response.  We reverse and remand.

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WI Court of Appeals – District IV

Case Name: Maple Grove Country Club Incorporated, et al. v. Maple Grove Estates Sanitary District

Case No.: 2016AP2296

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

Focus: Waiver of Affirmative Defense

Maple Grove Country Club, Inc., appeals a non-final order dismissing its statutory claim of inverse condemnation. Addressing only the limited issue on which we granted leave to appeal, we conclude that respondent Maple Grove Estates Sanitary District did not waive its notice of claim defense by failing to plead it. We reach this conclusion based on a 1995 decision of this court that we question, but must follow. The Club’s complaint alleged a claim of inverse condemnation under WIS. STAT. § 32.10 (2015-16). The circuit court held that this claim must be dismissed because the Club failed to comply with the applicable notice of claim statute, WIS. STAT. § 893.80(1d).

On appeal, the Club argues that the District waived the notice of claim defense by failing to plead it in the answer. The Club relies on case law holding that such a defense must be affirmatively pled or is considered waived. See Thorp v. Town of Lebanon, 2000 WI 60, ¶24, 235 Wis. 2d 610, 612 N.W.2d 59. In response, one of the District’s arguments is that raising such a defense by summary judgment motion is sufficient. Although we regard the case law on which the District relies as wrongly decided, we conclude that we are bound by that case law and, accordingly, that the District did not waive its affirmative defense.

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WI Court of Appeals – District I

Case Name: Susan L. Baldwin, et al. v. Milwaukee County, et al.

Case No.: 2016AP2380

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

Focus: ERISA – Pensions

Many employees of Milwaukee County have the right to pension benefits through the Employees’ Retirement System of the County of Milwaukee (ERS), which is overseen by a Pension Board. Susan Baldwin was an employee of Milwaukee County. At the time of Baldwin’s retirement in 2003, the Pension Board approved her monthly pension payment, and Baldwin started receiving that approved monthly payment in 2003. In 2014, the ERS informed Baldwin of the following: a mistake had been made by the ERS in 2000 in determining her eligibility to receive certain service credits and that error affected the Pension Board’s 2003 determination of her monthly pension payment; as a result, the pension payments Baldwin received were incorrect; and she had received overpayments totaling approximately $223,000. In 2015, the ERS informed Baldwin that her monthly pension payment would be reduced significantly to adjust for the service credit error and to recoup the overpayments. In 2015, Baldwin appealed to the Pension Board the ERS’s determinations that she was ineligible to receive the service credits and that her monthly pension payments would be reduced to account for the service credit mistake and to recoup the overpayments. Baldwin’s appeal was denied by the Pension Board. Baldwin sought certiorari review of the Pension Board’s decisions in the Milwaukee County Circuit Court, and the circuit court affirmed the Pension Board’s decisions. Baldwin appeals.

On appeal, Baldwin, for the first time, concedes that the Pension Board was correct when it decided that Baldwin was not eligible to receive the service credits. We accept that concession and, on that basis, affirm the circuit court in this respect. However, we agree with Baldwin that, pursuant to a time limitation contained in Pension Board Rule 1001, the Pension Board no longer had the authority in 2015 to reduce Baldwin’s monthly pension payments. Accordingly, we affirm in part, and reverse in part, the order of the circuit court, and remand this matter to the circuit court with directions that it remand to the Pension Board for proceedings consistent with this opinion.

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WI Court of Appeals – District IV

Case Name: Sara J. Scace v. Bryan J. Schulte

Case No.: 2016AP2413

Officials: Sherman, Kloppenburg and Fitzpatrick, JJ.

Focus: Court Error – Statutory Authority

Sara J. Scace appeals from an order of the circuit court directing that the last name of Scace’s child be changed to Scace-Schulte. Bryan J. Schulte, who acknowledged paternity of the child, argued for the name change. Scace argues that the court lacked the statutory authority to order the child’s name change and that, even if the court had the authority to change the child’s name, the court erred in determining that the name change is in the best interests of the child. We agree that the circuit court lacked the authority to change the child’s name under these facts and reverse the order on that basis.

Recommended for Publication

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WI Court of Appeals – District I

Case Name: Yasmeen Daniel, et al. v. Armslist, LLC, et al.

Case No.: 2017AP344

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

Focus: Statutory Interpretation – Negligence Claim

This is a tort action arising from a mass casualty shooting at a salon in Brookfield, Wisconsin. It is alleged that the shooter, Radcliffe Haughton, bought the firearm and ammunition he used in the shooting after responding to a “for sale” post that appeared on a website, Armslist.com. Yasmeen Daniel, the daughter of shooting victim Zina Daniel Haughton and the administrator of her mother’s estate, has filed multiple tort claims against Armslist, LLC, which created and operated Armslist.com.  Significant to Daniel’s claims, when Radcliffe purchased the firearm and ammunition, he was prohibited by a state court domestic violence injunction from possessing a firearm.

The circuit court dismissed Daniel’s complaint against Armslist in its entirety, based on the federal Communications Decency Act of 1996 (“the Act”). See 47 U.S.C. § 230(c)(1) and (e)(3) (October, 1998). As pertinent here, the Act creates what Armslist argues is immunity from any “liability” that “may be imposed under any State or local law” for a “provider” of “an interactive computer service” under a theory of liability that “treat[s]” the provider “as the publisher or speaker of any information provided by another information content provider.” See id. The court concluded that Armslist has immunity under this provision of the Act because Daniel alleges only that Armslist “passively displays content that [was] created entirely by third parties” and “simply maintain[ed] neutral policies prohibiting or eliminating certain content,” and because Daniel “fails to allege facts which establish … that Armslist [was] materially engaged in creating or developing the illegal content on its page.”

We reverse the order dismissing the complaint as to the Armslist defendants. Applying a plain language interpretation to the Act, we agree with Daniel that the allegations in the complaint, which are that Armslist used website design features to facilitate illegal firearms purchases, do not seek to hold Armslist liable on a theory prohibited by the Act. Stated in the terms used in the Act, we conclude that the allegations do not seek to hold Armslist liable under a theory of liability that “treat[s]” Armslist “as the publisher or speaker of any information provided by another information content provider,” which is the protection at issue here that the Act provides. We reject Armslist’s argument because the Act provides immunity to website operators, such as Armslist, only when the allegations treat the website as the publisher or speaker of third-party content, and the Act does not protect a website operator from liability that arises from its own conduct in facilitating user activity, as is the case here.

There is a separate issue, which does not involve immunity under the Act, namely, the court’s dismissal of a claim of negligence per se. On this issue, we agree with Daniel that, as Armslist effectively concedes, the circuit court erred in dismissing this claim. Accordingly, we reverse dismissal of the complaint as to the Armslist defendants, including the dismissal of the negligence per se claim, and remand.

Recommended for Publication

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WI Court of Appeals – District IV

Case Name: Jeffrey S. Borchert v. Heather Becker f/k/a Heather R. Marr

Case No.: 2017AP1076

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

Focus: Sufficiency of Evidence – Expert Testimony

Jeffrey Borchert appeals a circuit court order directing that he pay child support to Heather Becker. Borchert asserts that the court erred in relying on “inaccurate expert opinions” and “inaccurate numbers” in determining Borchert’s income for purposes of calculating child support. Separately, Borchert asserts that, because Becker did not plead a substantial change in circumstances, the court erred in making the child support order effective as of the date Becker filed her motion to modify child support.

We conclude that the first argument is undeveloped, but that even if it were developed it is without merit, and that the second argument was not preserved in the circuit court, but that even if it had been preserved it is without merit. Becker moves that we determine this appeal to be entirely frivolous. We grant this motion. Accordingly, we affirm and remand this matter to the circuit court to determine the costs, fees, and reasonable attorney’s fees, to be paid entirely by counsel for Borchert and not by Borchert, and awarded to Becker.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Michael J. Popple

Case No.: 2017AP1525-CR

Officials: Blanchard, Kloppenburg and Fitzpatrick, JJ.

Focus: Motion to Suppress Evidence Denied

Michael J. Popple appeals a judgment that convicted him of a second or subsequent offense of manufacturing 1000-2500 grams of THC. The sole issue on appeal is whether the circuit court erred in denying Popple’s motion to suppress evidence that had been seized pursuant to a warrantless search. We conclude that the circuit court properly determined that the challenged evidence was admissible under the community caretaker exception. Accordingly, we affirm the judgment of conviction.

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WI Supreme Court Digests

WI Supreme Court

Case Name: State of Wisconsin v. David McAlister, Sr.,

Case No.: 2018 WI 34

Focus: Newly Discovered Evidence

In January 2007, a jury convicted David McAlister, Sr. (“McAlister”) of attempted armed robbery (threat of force), armed robbery (threat of force) and possession of a firearm by a felon for crimes that occurred in late 2004. At trial, the State presented testimony from Nathan Jefferson (“Jefferson”) and Alphonso Waters (“Waters”). They testified that McAlister was their accomplice in the robberies.

In 2014, McAlister filed the Wis. Stat. § 974.06 motion for a new trial that is now before us. He alleged that he had newly discovered evidence represented by the affidavits of three men who allege that Jefferson and Waters lied when they testified that McAlister was involved in the crimes for which he was convicted. The circuit court denied McAlister’s motion without an evidentiary hearing, and the court of appeals affirmed.

Our review focuses on whether McAlister has provided newly discovered evidence that is sufficient to require the circuit court to hold an evidentiary hearing. In so doing, we consider whether the affidavits McAlister submitted in support of his motion meet the requirements necessary to qualify as newly discovered evidence. We specifically examine whether the affidavits were cumulative evidence and whether they were uncorroborated evidence for which corroboration should be required.

We conclude that the affidavits were merely cumulative evidence because they were additional evidence of the same general character as was subject to proof at trial, i.e., that Jefferson and Waters lied when they implicated McAlister in order to achieve favorable plea bargains for themselves. We also conclude that the affidavits were insufficient to require the circuit court to hold a hearing on McAlister’s motion for a new trial because they were supported by neither newly discovered corroborating evidence or circumstantial guarantees of trustworthiness. Therefore, the circuit court did not erroneously exercise its discretion when it denied McAlister’s motion for a new trial without an evidentiary hearing. State v. Avery, 2013 WI 13, ¶22, 345 Wis. 2d 407, 826 N.W.2d 60. Accordingly, we affirm the court of appeals’ affirmance of the circuit court.

Affirmed

Concur: KELLY, J., concurs (opinion filed)

Dissent: A.W. BRADLEY, J., dissents, joined by ABRAHAMSON, J. (opinion filed)

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WI Supreme Court

Case Name: Deutsche Bank National Trust Company v. Thomas P. Wuensch, et al.

Case No.: 2018 WI 35

Focus: Suffiency of Evidence

This is a review of an unpublished court of appeals summary disposition reversing the La Crosse County Circuit Court’s foreclosure judgment against Thomas P. Wuensch in favor of Deutsche Bank National Trust Company (Deutsche Bank). The circuit court admitted the promissory note signed by Wuensch (the Note) into evidence when offered by Deutsche Bank through its attorney, and permitted the Bank to enforce the Note, ruling that the original Note, endorsed in blank, was sufficient to establish possession. We reverse the court of appeals’ summary disposition and affirm the circuit court’s judgment of foreclosure.

The issue before this court is whether presentment by a party’s attorney of an original, wet-ink note endorsed in blank is admissible evidence and enforceable against the borrower without further proof that the holder had possession at the time the foreclosure action was filed. To answer this question, we must determine the evidence necessary to prove that an entity seeking to enforce a note against a borrower has the right to do so. We hold that presentment to the trier of fact in a mortgage foreclosure proceeding of the original, wet-ink note endorsed in blank, establishes the holder’s possession and entitles the holder to enforce the note.

Reversed in part. Affirmed in part.

Concur:

Dissent: A.W. BRADLEY, J., dissents, joined by ABRAHAMSON, J. (opinion filed)
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WI Supreme Court

Case Name: Office of Lawyer Regulation v. Barry S. Wagner

Case No.: 2018 WI 36

Focus: Attorney Disciplinary Proceedings

The Office of Lawyer Regulation (OLR) and Attorney Barry S. Wagner have filed a stipulation pursuant to Supreme Court Rule (SCR) 22.12 that Attorney Wagner be publicly reprimanded as discipline reciprocal to that imposed by the Supreme Court of Arizona. After reviewing the matter, we approve the stipulation and impose the stipulated reciprocal discipline. In light of the parties’ stipulation and the fact that no referee needed to be appointed, we impose no costs upon Attorney Wagner.

Affirmed

Concur:

Dissent:
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WI Supreme Court

Case Name: Winnebago County v. J.M.

Case No.: 2018 WI 37

Focus: Chapter 51 Commitment-Extension Proceeding – Ineffective Assistance of Counsel

This review involves a Chapter 51 commitment-extension proceeding. The unpublished decision of the court of appeals affirmed an order of the circuit court for Winnebago County, Karen L. Seifert, Judge, denying J.M.’s motion for post-disposition relief. J.M. seeks relief, claiming ineffective assistance of counsel. Three questions are presented to this court: First, does J.M. have a statutory right to effective assistance of counsel at a Chapter 51 commitment-extension proceeding, and if so, what standard should apply in evaluating a claim of ineffective assistance of counsel? Second, did the failure of J.M.’s trial counsel to object to, prevent the admission of, or request a curative instruction regarding evidence presented to the jury of J.M.’s status as a prisoner (including J.M.’s wearing prison garb) constitute ineffective assistance of counsel? Third, is J.M. entitled to a new Chapter 51 commitment-extension proceeding in the interest of justice because the jury was repeatedly exposed to evidence of J.M.’s status as a prisoner and the circuit court gave conflicting jury instructions?

We respond as follows to these questions: First, J.M. had a statutory right to effective assistance of counsel in his Chapter 51 commitment-extension hearing. The legislature has provided that the subject of every civil commitment proceeding is entitled to be “represented by adversary counsel.” Wis. Stat. § 51.20(3) (2015-16). When the legislature provides the right to be “represented by counsel,” the legislature intends that right to include effective assistance of counsel. In re M.D.(S)., 168 Wis. 2d 995, 1004, 485 N.W.2d 52 (1992). The standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), is the correct standard for evaluating a claim of ineffective assistance of counsel in a commitment-extension hearing.

Second, given the overwhelming evidence presented by Winnebago County at the commitment-extension proceeding, J.M. has not shown that a reasonable probability exists that the result of the proceeding would have been different had his trial counsel’s performance not been allegedly deficient regarding J.M.’s appearance in prison garb. Third, J.M. has not established that he is entitled to a new trial under Wis. Stat. § 751.06 on the ground that his wearing of prison garb during the trial so distracted the jury “that the real controversy [was] not [] fully tried,” and justice was miscarried. Moreover, the circuit court’s conflicting jury instructions likewise do not entitle J.M. to a new trial in the interest of justice. Accordingly, we affirm the decision of the court of appeals.

Affirmed

Concur: A.W. BRADLEY, J., concurs (opinion filed).

Dissent:
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WI Supreme Court

Case Name: Office of Lawyer Regulation v. Daniel J. Rostollan

Case No.: 2018 WI 38

Focus: Attorney Disciplinary Proceedings

We review Referee Jonathan V. Goodman’s amended report recommending that this court suspend Attorney Daniel J. Rostollan’s license to practice law in Wisconsin for a period of two years and direct him to pay restitution as well as the costs of this proceeding.

No appeal has been filed so we review the referee’s report pursuant to Supreme Court Rule (SCR) 22.17(2). After conducting an independent review of the matter, we agree that Attorney Rostollan should be deemed to have defaulted, we accept and adopt the referee’s findings of fact and conclusions of law, which are based on the allegations of the complaint filed by the Office of Lawyer Regulation (OLR). We agree that Attorney Rostollan’s law license should be suspended for two years and that he should be directed to pay restitution. We impose the full costs of this proceeding on Attorney Rostollan, which are $2,663.71 as of January 30, 2018.

Affirmed

Concur:

Dissent:
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WI Supreme Court

Case Name: Office of Lawyer Regulation v. Linda L. Gray

Case No.: 2018 WI 39

Focus: Attorney Disciplinary Proceedings

Pending before the court is the report of referee Jonathan V. Goodman, following a hearing and the receipt of a stipulation and supplemental stipulation between the Office of Lawyer Regulation (OLR) and the respondent, Attorney Linda L. Gray. Attorney Gray has opted to plead no contest to the sole misconduct count brought against her: a violation of SCR 20:1.8(c) related to her drafting of the will of M.A., who died at age 71 in January 2015. Although Attorney Gray is not related to M.A., she received a significant testamentary gift from her: the balance of her estate after specific bequests to charities were distributed, which resulted in Attorney Gray receiving $298,742.12. Consistent with the parties’ stipulation, the referee recommended that this court suspend Attorney Gray’s Wisconsin law license for 60 days for her professional misconduct. The referee further recommended that Attorney Gray should be assessed the full costs of the proceeding, which are $2,067.67 as of January 17, 2018. The OLR does not seek the payment of restitution in these proceedings, and the referee does not recommend it.

No appeal has been filed so we review this matter pursuant to SCR 22.17(2). We approve and adopt the referee’s findings and conclusions and we agree that a 60-day suspension is sufficient discipline for Attorney Gray’s misconduct. We further order that Attorney Gray pay the full costs of this disciplinary proceeding. We decline to order restitution.

Affirmed

Concur:

Dissent:
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WI Supreme Court

Case Name: State of Wisconsin v. David Hager, Jr.,

Case No.: 2018 WI 40

Focus: Sufficiency of Evidence

This is a review of two published decisions of the court of appeals, State v. Hager, 2017 WI App 8, 373 Wis. 2d 692, 892 N.W.2d 740, and State v. Carter, 2017 WI App 9, 373 Wis. 2d 722, 892 N.W.2d 754. Both cases involve the discharge procedure for a person civilly committed as a sexually violent person pursuant to Wis. Stat. ch. 980 (2015-16) (“Chapter 980”). David Hager, Jr., and Howard Carter both filed petitions for discharge from commitment as sexually violent persons pursuant to Wis. Stat. § 980.09 with the Chippewa County Circuit Court and Brown County Circuit Court, respectively, and both petitions were denied. Hager and Carter appealed.

In Hager, the court of appeals reversed, concluding that the circuit court erred in two ways: (1) by considering evidence unfavorable to Hager’s discharge petition; and (2) by weighing the evidence in favor of the discharge petition against the evidence opposed. Hager, 373 Wis. 2d 692, ¶5. Based on its review of the record, the court of appeals concluded that Hager had satisfied his burden of production and reversed and remanded the matter to the circuit court with instructions to conduct a discharge trial pursuant to Wis. Stat. § 980.09(3)-(4). Id. In Carter, the court of appeals affirmed the circuit court, concluding that Carter had not satisfied the standard it had established in Hager. Carter, 373 Wis. 2d 722, ¶3. Both cases involve the proper interpretation of Wis. Stat. § 980.09(2), as amended by 2013 Wis. Act 84, which establishes the procedures for discharge from commitment. Carter raises two additional issues before this court: (1) whether § 980.09(2) violates the right to due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, Section 1 of the Wisconsin Constitution; and (2) whether Act 84 applies retroactively to Carter. We review this last issue, whether Act 84 applies retroactively to Carter, through the lens of ineffective assistance of counsel because Carter’s counsel did not contest the application of the amended standard to Carter. See State v. Erickson, 227 Wis. 2d 758, 768, 596 N.W.2d 749 (1999).

We hold as to both Hager and Carter that the court of appeals erred in concluding that Wis. Stat. § 980.09(2) limits circuit courts to considering only the evidence favorable to petitions for discharge. We hold that circuit courts are to carefully examine, but not weigh, those portions of the record they deem helpful to their consideration of the petition, which may include facts both favorable as well as unfavorable to the petitioner. We further hold that Wis. Stat. § 980.09(2) does not violate the constitutional right to due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, Section 1 of the Wisconsin Constitution, and furthermore, Carter’s counsel was not ineffective for failing to challenge retroactive application of Act 84 to Carter.

As to Hager, we reverse the decision of the court of appeals and remand the matter to the circuit court for further proceedings consistent with this opinion; as to Carter, we affirm the decision of the court of appeals, albeit on different grounds.

Reversed and Remanded in part. Affirmed in part.

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

Dissent: ABRAHAMSON, J., dissents, joined by A.W. BRADLEY, J. (opinion filed).
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WI Supreme Court

Case Name: Office of Lawyer Regulation v. Brandon Buchanan

Case No.: 2018 WI 41

Focus: Attorney Disciplinary Proceedings

We review Referee Allan E. Beatty’s recommendation that the court declare Attorney Brandon Buchanan in default and suspend his Wisconsin law license for a period of 60 days for professional misconduct in connection with his work on one client matter and his non-cooperation with the Office of Lawyer Regulation’s (OLR) investigation into that misconduct. The referee also recommended that Attorney Buchanan be required to make restitution to a former client in the amount of $335, and to pay the full costs of this proceeding, which total $410.44 as of February 12, 2018.

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 agree with the referee that, based on Attorney Buchanan’s failure to answer the complaint filed by the OLR, the OLR is entitled to a default judgment. We also agree with the referee that Attorney Buchanan’s professional misconduct warrants a 60–day suspension of his Wisconsin law license. Finally, we agree with the referee that Attorney Buchanan should be ordered to pay the full costs of the proceeding, as well as $335 in restitution.

Affirmed

Concur:

Dissent:
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WI Supreme Court

Case Name: Office of Lawyer Regulation v. Holly Lynn Fulkerson

Case No.: 2018 WI 42

Focus: Attorney Disciplinary Proceedings

We review a stipulation pursuant to Supreme Court Rule (SCR) 22.12 between the Office of Lawyer Regulation (OLR) and Attorney Holly Lynn Fulkerson. The stipulation provides that Attorney Fulkerson committed six counts of professional misconduct arising out of the representation of a single client and jointly requests that the court publicly reprimand Attorney Fulkerson for her professional misconduct.

After carefully reviewing the matter, we accept the stipulation and impose the requested public reprimand. We do not require Attorney Fulkerson to pay any restitution, as none was requested by the OLR. Although there was a prior submission of a proposed consensual public reprimand to a referee, this disciplinary proceeding has been resolved by a stipulation under SCR 22.12 without the appointment of a referee. Thus, we do not impose any costs on Attorney Fulkerson.

Affirmed

Concur:

Dissent:
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Supreme Court Digests

United States Supreme Court

Case Name: Wilson v. Sellers, Warden

Case No.: 16-6855

Focus: Habeas Court – AEDPA (Statute Interpretation)

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) requires a prisoner who challenges (in a federal habeas court) a matter “adjudicated on the merits in State court” to show that the relevant state-court “decision” (1) “was contrary to, or involved an unreasonable application of, clearly established Federal law,” or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U. S. C. §2254(d). Deciding whether a state court’s decision “involved” an unreasonable application of federal law or “was based on” an unreasonable determination of fact requires the federal habeas court to “train its attention on the particular reasons—both legal and factual—why state courts rejected a state prisoner’s federal claims,” Hittson v. Chatman, 576 U. S. ___, ___ (2015) (GINSBURG, J., concurring in denial of certiorari) (slip op., at 1), and to give appropriate deference to that decision, Harrington v. Richter, 562 U. S. 86, 101–102 (2011). This is a straightforward inquiry when the last state court to decide a prisoner’s federal claim explains its decision on the merits in a reasoned opinion. In that case, a federal habeas court simply reviews the specific reasons given by the state court and defers to those reasons if they are reasonable. We have affirmed this approach time and again. See, e.g., Porter v. McCollum, 558 U. S. 30, 39–44 (2009) (per curiam); Rompilla v. Beard, 545 U. S. 374, 388–392 (2005); Wiggins v. Smith, 539 U. S. 510, 523–538 (2003).

The issue before us, however, is more difficult. It concerns how a federal habeas court is to find the state court’s reasons when the relevant state-court decision on the merits, say, a state Supreme Court decision, does not come accompanied with those reasons. For instance, the decision may consist of a one-word order, such as “affirmed” or “denied.” What then is the federal habeas court to do? We hold that the federal court should “look through” the unexplained decision to the last related state-court decision that does provide a relevant rationale. It should then presume that the unexplained decision adopted the same reasoning. But the State may rebut the presumption by showing that the unexplained affirmance relied or most likely did rely on different grounds than the lower state court’s decision, such as alternative grounds for affirmance that were briefed or argued to the state supreme court or obvious in the record it reviewed.

Reversed and Remanded

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

Concurring: BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined.
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United States Supreme Court

Case Name: Sessions, Attorney General v. Dimaya

Case No.: 15-1498

Focus: Statutory Interpretation

Three Terms ago, in Johnson v. United States, this Court held that part of a federal law’s definition of “violent felony” was impermissibly vague. See 576 U. S. ___ (2015). The question in this case is whether a similarly worded clause in a statute’s definition of “crime of violence” suffers from the same constitutional defect. Adhering to our analysis in Johnson, we hold that it does.

Affirmed

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

Concurring: GORSUCH, J., filed an opinion concurring in part and concurring in the judgment.
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United States Supreme Court

Case Name: United States v. Microsoft Corporation

Case No.: 17-2

Focus: Disclosure of Electronic Communications

The Court granted certiorari in this case to decide whether, when the Government has obtained a warrant under 18 U. S. C. §2703, a U. S. provider of e-mail services must disclose to the Government electronic communications within its control even if the provider stores the communications abroad. 583 U. S. ___ (2017).

In December 2013, federal law enforcement agents applied to the United States District Court for the Southern District of New York for a §2703 warrant requiring Microsoft to disclose all e-mails and other information associated with the account of one of its customers. Satisfied that the agents had demonstrated probable cause to believe that the account was being used to further illegal drug trafficking, a Magistrate Judge issued the requested §2703 warrant. App. 22–26. The warrant directed Microsoft to disclose to the Government the contents of a specified e-mail account and all other records or information associated with the account “[t]o the extent that the information . . . is within [Microsoft’s] possession, custody, or control.” Id., at 24.

After service of the §2703 warrant, Microsoft determined that the account’s e-mail contents were stored in a sole location: Microsoft’s datacenter in Dublin, Ireland. Id., at 34. Microsoft moved to quash the warrant with respect to the information stored in Ireland. The Magistrate Judge denied Microsoft’s motion. In re Warrant To Search a Certain E-Mail Account Controlled and Maintained by Microsoft Corp., 15 F.Supp.3d 466 (SDNY 2014). The District Court, after a hearing, adopted the Magistrate Judge’s reasoning and affirmed his ruling. See In re Warrant To Search a Certain E-Mail Account Controlled and Maintained by Microsoft Corp., 829 F. 3d 197, 204– 205 (CA2 2016). Soon after, acting on a stipulation submitted jointly by the parties, the District Court held Microsoft in civil contempt for refusing to comply fully with the warrant. Id., at 205. On appeal, a panel of the Court of Appeals for the Second Circuit reversed the denial of the motion to quash and vacated the civil contempt finding, holding that requiring Microsoft to disclose the electronic communications in question would be an unauthorized extraterritorial application of §2703. Id., at 222.

Soon thereafter, the Government obtained, pursuant to the new law, a new §2703 warrant covering the information requested in the §2703 warrant at issue in this case. No live dispute remains between the parties over the issue with respect to which certiorari was granted. See Department of Treasury, Bureau of Alcohol, Tobacco and Firearms v. Galioto, 477 U. S. 556, 559 (1986). Further, the parties agree that the new warrant has replaced the original warrant. This case, therefore, has become moot. Following the Court’s established practice in such cases, the judgment on review is accordingly vacated, and the case is remanded to the United States Court of Appeals for the Second Circuit with instructions first to vacate the District Court’s contempt finding and its denial of Microsoft’s motion to quash, then to direct the District Court to dismiss the case as moot.

No live dispute remains between the parties over the issue with respect to which certiorari was granted. See Department of Treasury, Bureau of Alcohol, Tobacco and Firearms v. Galioto, 477 U. S. 556, 559 (1986). Further, the parties agree that the new warrant has replaced the original warrant. This case, therefore, has become moot. Following the Court’s established practice in such cases, the judgment on review is accordingly vacated, and the case is remanded to the United States Court of Appeals for the Second Circuit with instructions first to vacate the District Court’s contempt finding and its denial of Microsoft’s motion to quash, then to direct the District Court to dismiss the case as moot.

Vacated and Remanded

Dissenting:

Concurring:
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