Weekly Case Digests — May 7-May 11, 2018

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Sara Sampra v. United States Department of Transportation

Case No.: 17-2621

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

Focus: FMLA Violation – Time-barred

Sara Sampra sued her employer, the United States Department of Transportation, alleging that it interfered with her rights under the Family and Medical Leave Act by reassigning her to a different position after she returned from childbirth leave. The district court granted summary judgment for the defendant on the merits, finding that Sampra was offered essentially the same position upon her return from leave. Sampra has appealed. We affirm, though on the different ground that Sampra’s lawsuit is time‐ barred. We do not reach the merits. Sampra failed to file her complaint within the applicable two‐year statute of limitations. The more forgiving three‐year statute of limitations does not apply because Sampra failed to provide evidence that the department willfully violated her FMLA rights.  her return from leave. Sampra has appealed. We affirm, though on the different ground that Sampra’s lawsuit is time‐ barred. We do not reach the merits. Sampra failed to file her complaint within the applicable two‐year statute of limitations. The more forgiving three‐year statute of limitations does not apply because Sampra failed to provide evidence that the department willfully violated her FMLA rights.

Affirmed
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7^th Circuit Court of Appeals

Case Name: Kirk W. Stephens v. Nancy A. Berryhill

Case No.: 16-4003

Officials: WOOD, Chief Judge, SYKES, Circuit Judge, and COLEMAN, District Judge.

Focus: SSI Benefits – Judicial Error

Kirk W. Stephens contends that he is disabled by diabetes, kidney disease, knee and back pain, heart disease, high blood pressure, asthma, arthritis, and obesity. He applied for and was denied Supplement Security Income (“SSI”) benefits; on review the district court reversed and remanded for a new hearing. Following the second hearing, a different Administrative Law Judge (“ALJ”) determined that Stephens’ impairments, although severe, were not disabling and that he could perform relevant past work. The district court upheld the agency’s decision. We affirm.

Affirmed
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7^th Circuit Court of Appeals

Case Name: Anderson R. DaSilva v. Robert Rymarkiewicz, et al.

Case No.: 16-1231

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

Focus: Authority to Act

Plaintiff Anderson DaSilva was an inmate at Wisconsin’s Waupan Correctional Institution. One evening, after receiving his medication, he became dizzy, vomited, lost consciousness, and fell, hitting his head on the way down. DaSilva believes that this accident occurred because he was given the wrong medication. Worse, more than three hours passed before DaSilva was taken to the hospital (only five minutes away), where doctors stapled a deep laceration and diagnosed a serious concussion.

Pursuant to an informal agreement between the court and the Wisconsin Department of Justice, DaSilva’s complaint and the court’s initial screening order were sent to the Department for service on Rymarkiewicz and DeYoung. After service was accomplished, the Wisconsin Attorney General appeared on behalf of those two defendants and filed the state’s consent under 28 U.S.C. § 636(c) to proceed before the magistrate judge. At that point, discovery proceeded. Some time later, Rymarkiewicz and DeYoung filed a motion for summary judgment. The judge granted that motion and entered judgment in their favor. The court (acting through the magistrate judge) then entered a final judgment in the matter. DaSilva filed a timely notice of appeal following the denial of his motion for reconsideration under Federal Rule of Civil Procedure 59.

Before proceeding with DaSilva’s appeal, we must assure ourselves that the district court has issued a final judgment, and thus that our appellate jurisdiction is secure. See 28 U.S.C. § 1291. On the surface, the answer looks easy: the magistrate judge had the authority to resolve the case, thanks to the consents Rymarkiewicz and DeYoung filed under section 636(c) and the grant of summary judgment in their favor. But at the time the case was filed, they were not the only two parties. DaSilva also had sued Coby, but the magistrate judge dismissed that part of the case at the screening stage, before the defendant had any occasion to accept (or not to accept) the magistrate judge’s jurisdiction. The question is whether the manner in which the claim against Coby was resolved makes any difference. We think not.

In addition, the appearance form that the Assistant Attorney General filed with this court says only that she “appears as counsel for Defendants in the action.” She did not name any individual defendants. This is enough not only to show that Rymarkiewicz and DeYoung were represented by the state attorney general, but also to show that Coby fell within the scope of that representation. The state’s agreement to allow the magistrate judge to resolve the case on the merits thus covered Coby too, and allowed it to ratify the interlocutory order dismissing him. In other words, this is “some action from the party whose consent must be found,” as required by Coleman. 860 F.3d at 470 (emphasis in original). That leads to the conclusion that all parties had consented to proceeding before the magistrate judge by the time he entered a final judgment dismissing the entire action (i.e. a judgment resolving all claims against all parties). By that time, all of the “t’s” had been crossed and “i’s” dotted, and the magistrate judge was fully authorized to act.

There is therefore no need to return this case to a district court judge for any further proceedings. This appeal shall proceed to briefing with a schedule set by separate court order.

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7^th Circuit Court of Appeals

Case Name: UWM Student Association, et al. v. Michael Lovell

Case No.: 17-2499

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

Focus: Statutory Interpretation – Student Government Elections

Student government elections rarely produce federal litigation. Wisconsin law, though, gives students at state universities rights to organize themselves and to run their governments, which have the power to spend substantial funds. Wis. Stat. § 36.09(5). The combination of those state-law rights and fiscal powers can produce federal claims, even if the stakes are more modest than in most other disputes over state and local governance.

This case arises from a long-running feud between rival student governments at the University of Wisconsin-Milwaukee, commonly known as UWM. Plaintiffs are the UWM Student Association and several former and current UWM students. Plaintiffs allege a wide-ranging conspiracy to interfere with student governance. They allege that the UWM administration excluded certain students from student government by unseating the legitimately elected officers and replacing them over several years with a supposedly “puppet” student government with a similar name, the defendant Student Association at UWM. After considerable procedural fencing— resulting from plaintiffs’ clumsy efforts to pursue an unmanageable complaint with 44 plaintiffs suing 37 defendants for claims spanning several years of student politicking—the district court dismissed the suit with prejudice. We affirm in part, reverse in part, and remand with instructions to reinstate certain claims, though it is clear that those claims are likely to encounter other substantial obstacles on remand.

Affirmed in part. Remanded and reversed in part.
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7^th Circuit Court of Appeals

Case Name: John M. Gleason v. Christopher A. Jensen

Case No.: 17-1658

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

Focus: Bankruptcy Relief

This case began as an adversary proceeding in Christopher Jansen’s chapter 7 bankruptcy case. It turned into a procedural snarl, however. We have concluded that the only part of the case properly before us is an appeal from a denial of relief under the bankruptcy equivalent of Federal Rule of Civil Procedure 60. That decision was correct, and so we affirm the judgment of the district court.

Affirmed
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7^th Circuit Court of Appeals

Case Name: United States of America v. Gregory Bethea

Case No.: 17-3468

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

Focus: Sentencing Guidelines

Defendant-appellant Gregory Bethea pleaded guilty to possessing a counterfeit access device in violation of 18 U.S.C. § 1029(a)(1). Due to serious health issues, Bethea appeared via video conference at his combined guilty plea and sentencing hearing where he was sentenced to twenty-one months’ imprisonment. He now argues his sentence should be vacated because Federal Rule of Criminal Procedure 43(a) required him to be physically present during his plea. We agree, and thus reverse and remand for further proceedings.

Reversed and Remanded
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7^th Circuit Court of Appeals

Case Name: Dale E. Kleber v. CareFusion Corporation

Case No.: 17-1206

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

Focus: Statutory Interpretation – ADEA

The key provision of the Age Discrimination in Employment Act of 1967 prohibits employment practices that discriminate intentionally against older workers, and prohibits employment practices that have a disparate impact on older workers. 29 U.S.C. § 623(a)(1), (a)(2); Smith v. City of Jackson, 544 U.S. 228 (2005). The central issue in this appeal is whether the disparate impact provision, § 623(a)(2), protects only current employees or whether it protects current employees and outside job applicants. We hold that § 623(a)(2) protects both outside job applicants and current employees. That is the better reading of the statutory text. It is also more consistent with the purpose of the Act and nearly fifty years of case law interpreting the ADEA and similar language in other employment discrimination statutes.

In fact, our reading tracks the Supreme Court’s reading of virtually identical statutory language in Title VII of the Civil Rights Act of 1964 in Griggs v. Duke Power Co., 401 U.S. 424, 426 n.1, 431 (1971), which found that this text protects “the job‐seeker.” In holding that the ADEA covers disparate impact claims, the Supreme Court identified Griggs as “a precedent of compelling importance” in interpreting § 623(a)(2), Smith, 544 U.S. at 234, so we apply it here. Moreover, we have not been presented with, and could not imagine on our own, a plausible policy reason why Congress might have chosen to allow disparate impact claims by current employees, including internal job applicants, while excluding outside job applicants.

We therefore reverse the district court’s Rule 12(b)(6) dismissal of plaintiff Dale Kleber’s disparate impact claim and remand for further proceedings. Given the stage of the case, we do not address possible affirmative defenses under § 623(f)(1), including the defense that the challenged practice was “based on reasonable factors other than age.”

Reversed and Remanded
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7^th Circuit Court of Appeals

Case Name: Damien G. Terry v. Mark Spencer, et al.,

Case No.: 17-2331

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

Focus: Abuse of Discretion – Reconsideration Motion Denied

Damien Terry, an Illinois prisoner proceeding pro se, sued prison officials and corrections administrators under 42 U.S.C. § 1983 claiming that they were deliberately indifferent to a painful tumor on his neck and prevented him from timely filing suit on that claim. A district judge screened the case, see 28 U.S.C. § 1915A, held a “merit-review hearing,” see Hughes v. Farris, 809 F.3d 330, 334– 35 (7th Cir. 2015), and dismissed the complaint, ruling that it impermissibly joined two unrelated sets of claims against different defendants. The judge gave Terry 30 days to replead. Terry instead moved for reconsideration, citing Rule 59(e) of the Federal Rules of Civil Procedure. He explained that his claims were not unrelated and his complaint should not have been dismissed on that ground. The judge denied the motion, observing that Rule 59(e) does not permit reconsideration of a non-final order of dismissal. The judge then entered judgment ending the case, and Terry appealed.

We reverse. The judge misunderstood his discretion to entertain Terry’s reconsideration motion. Though Rule 59(e) did not apply, a district judge may reconsider an interlocutory order at any time before final judgment. And the judge should have done so here; reading the complaint generously, Terry’s claims are related.

We also note an anomaly in this record and invoke our supervisory authority to guard against its recurrence. We have upheld the use of so-called merit-review hearings at § 1915A screening, but we’ve cautioned that this unusual procedure must be strictly limited to “enabling a pro se plaintiff to clarify and amplify his complaint.” Id. at 335. We have also explained that a transcript or other recording must be made. Henderson v. Wilcoxen, 802 F.3d 930, 932–33 (7th Cir. 2015). This record contains no transcript or digital recording of the judge’s merit-review hearing; indeed, it’s unclear from the docket whether it was recorded at all. We now require district judges who use this procedure to docket a transcript or a digital recording of the hearing.

Reversed and Remanded
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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Danyall Lorenzo Simpson

Case No.: 2016AP1372

Officials: Kessler, Brash and Dugan, JJ.

Focus: Ineffective Assistance of Counsel

Danyall Lorenzo Simpson appeals a circuit court order that denied without a hearing his postconviction motion seeking a new trial pursuant to WIS. STAT. § 974.06 (2015-16). In the circuit court, he alleged that his postconviction counsel was ineffective for failing to challenge the effectiveness of trial counsel and for failing to pursue a claim that the prosecutor presented false evidence. On appeal, he renews the claims presented to the circuit court and seeks a hearing on those claims. He further seeks a new trial in the interest of justice. We reject his contentions and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin Ex Rel. Gerald Tucker v. Brian Hayes Administrator

Case No.: 2017AP782

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

Focus: Revocation of Trust – Supplement the Record

Gerald Tucker, pro se, appeals from an order of the circuit court that denied his request to supplement the record on certiorari review and affirmed the Division of Hearings and Appeals’ decision sustaining an administrative law judge’s revocation of Tucker’s probation. Tucker asserts that the Division acted arbitrarily and unreasonably and contends discretionary reversal is warranted. We reject Tucker’s arguments and affirm the circuit court order.

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WI Court of Appeals – District I

Case Name: Media Placement Services, Inc. v. Wisconsin Department of Transportation

Case No.: 2017AP791

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

Focus: DOT – Mandamus Action Denied

Media Placement Services (Media Placement) appeals the summary judgment order dismissing its mandamus action to access free motor vehicle accident reports from the Department of Transportation (DOT) using the DOT’s web portal. We affirm.

Recommended for Publication

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Teel Tyre Hargraves

Case No.: 2017AP1242-CR

Officials: Kessler, Brash and Dugan, JJ.

Focus: Sufficiency of Evidence

Teel Tyre Hargraves appeals from the judgment of conviction entered upon a jury’s verdict finding him guilty of being a felon in possession of a firearm. He also appeals an order of the circuit court denying his postconviction motion seeking a new trial. Hargraves’s arguments concern the admission of evidence relating to an anonymous 911 call that relayed the description of an individual with a gun. Hargraves asserts that the evidence relating to the call was testimonial hearsay and violates his right to confrontation. Hargraves further contends that even if the evidence is not hearsay, its probative value is outweighed by its unfair prejudice, and therefore it should have been excluded.

The State maintains that the evidence was not hearsay because it was not admitted to prove the truth of the matter asserted, but that even if it was erroneously-admitted hearsay, it was harmless error. The State further argues that the evidence was nontestimonial, and therefore there is no Confrontation Clause violation. Finally, the State asserts that the evidence was relevant to the police officers’ states of mind and was not unduly prejudicial.

We conclude that the 911 description was properly admitted for the limited purpose of providing context for the circumstances of the case, and although the State went beyond the scope of that purpose in its closing argument, those arguments are not evidence upon which an admissibility challenge can be based. We therefore affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. DeShandre Darnell Brister

Case No.: 2017AP1362-CR

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

Focus: Sentence Modification

Deshandre Darnell Brister appeals from a judgment of conviction for two counts of failure to pay child support for more than 120 days, contrary to WIS. STAT. § 948.22(2) (2013-14). Brister also appeals from an order denying his postconviction motion. At issue is whether Brister is entitled to resentencing on grounds that the trial court relied on an improper factor at sentencing: Brister’s allegedly compelled and incriminating statement made in response to a question from the trial court. We conclude that even if Brister’s statement was compelled and incriminating, he is not entitled to relief because he has not demonstrated that the trial court actually relied on the statement at sentencing. Accordingly, we affirm the judgment and the order.

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WI Court of Appeals – District I

Case Name: James Morton, et al. v. Charles E. Ferguson

Case No.: 2017AP2015

Officials: DUGAN, J.

Focus: Court Error – Request for Substitution

Charles E. Ferguson appeals from a judgment of eviction. In his notice of appeal Ferguson asserts that the chief judge of the circuit court failed to honor his request for substitution of the Honorable William Pocan, and that there was fraudulent conduct between Judge Pocan and the Honorable Glenn Yamahiro, who granted the judgment of eviction. In his appellate brief, he also references his counterclaim. We affirm.
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WI Court of Appeals – District I

Case Name: Johnson Controls, Inc. et al. Central National Insurance Company of Omaha, et al.

Case No.: 2014AP2050

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

Focus: Insurance Claim – Duty to Defend

Central National Insurance Company of Omaha and Westchester Fire Insurance Company (collectively “Central National”) appeal a summary judgment determining that Central National breached its duty to defend Johnson Controls, Inc. (Johnson Controls) against potential liabilities for environmental contamination under multiple excess insurance policies. Johnson Controls cross-appeals from the circuit court’s denial of additional attorney fees, prejudgment interest requests, and the rate at which postverdict interest was to be calculated. Based on the duty to defend language of the insurance policies at issue, which Johnson Controls concedes provides a duty to defend only if an occurrence is covered under the excess insurance policies but not covered under the underlying insurances, we conclude Central National owed no duty to defend Johnson Controls. We therefore reverse and remand with directions to enter judgment for Central National. The cross-appeal is dismissed as moot.
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WI Court of Appeals – District II

Case Name: Lagoon Lane, LLC, v. Paul Rice, et al.

Case No.:  2016AP2118

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

Focus: Ordinance Interpretation

Lagoon Lane, LLC owns shoreland property in the Town of West Bend in Washington County that it sought to divide into several lots. The Town, however, denied Lagoon Lane’s certified survey map (CSM) seeking subdivision on the grounds that it failed to comply with the Town’s setback, minimum lot size, and frontage requirements. This case comes to us following certiorari review in the circuit court. The question presented is whether the Town may enforce these ordinances and deny the CSM on these grounds. We conclude that the Town was without this authority.

Before proceeding further, we pause to address the limits of this ruling. Following an initial release of this opinion, the Town filed a motion to reconsider our decision based on recent statutory amendments adopted through the enactment of 2015 Wisconsin Act 41, effective July 3, 2015, creating WIS. STAT. §§ 60.61(3r) and 60.62(5) (2015-16). These new subsections appear to modify our decision in Hegwood v. Town of Eagle Zoning Bd. of Appeals, 2013 WI App 118, 351 Wis. 2d 196, 839 N.W.2d 111, interpreting WIS. STAT. § 59.692, and consequently, the statutory authority of towns to zone in shorelands. The Town indicated it became aware of these changes, which were effective two months before the Town’s denial of the CSM, only after our opinion was released. After reviewing the record, we agree that these statutory changes were not argued to this court or otherwise brought to our attention.

As a general rule, we do not consider arguments raised for the first time on appeal. McKee Family I, LLC v. City of Fitchburg, 2017 WI 34, ¶¶29, 32, 374 Wis. 2d 487, 893 N.W.2d 12. While we appreciate the candor of the Town in bringing these changes to our attention, we decline to grant what would amount to a complete appellate do over, particularly given that the Town failed to provide the applicable statutory provisions to its own decision-makers and circuit court when they were reviewing this case. The Town is effectively asking us to re-do their work as well, starting from scratch under the new statutory provisions. We see no reason to depart from our general rule and decline to address the effect of these statutory amendments. Thus, the parties and public should understand that this opinion does not consider these relevant statutory amendments, but rather proceeds under the assumption that Hegwood remains unaltered and the statutory authority of towns to zone in shoreland areas remains as it was at the time Hegwood was decided.  This opinion represents, then, a statement of the law prior to these recent legislative changes.

With this understanding and the limited scope of our analysis in view, we conclude as follows. While towns generally possess the authority to enact zoning regulations, as we explained in Hegwood, 351 Wis. 2d 196, ¶¶15-17, the legislature removed shoreland zoning authority for towns through the enactment of WIS. STAT. §§ 281.31 and 59.692. We conclude this means that the legislature has withdrawn all exercises of shoreland zoning authority that do not fall within the limited exception in § 59.692(2)(b)—including zoning power that overlaps with subdivision authority. The Town’s setback and minimum lot size requirements are admittedly zoning enactments, and thus have plainly been removed of their efficacy in shoreland areas. The Town’s frontage requirement was enacted under both its zoning and subdivision ordinances. Because the frontage requirement falls within the zoning power, we hold that it is without effect. Therefore, the Town erred by denying the CSM, and we affirm the circuit court’s order so holding.

Decision/Opinion Withdrawn
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WI Court of Appeals – District III

Case Name: Essa Shoukry Yacoub v. Mary Elena Yacoub

Case No.: 2016AP2291

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

Focus: Marital Settlement Agreement – Taxable Payments

Essa Yacoub appeals an order addressing the tax treatment of certain payments he made under a marital settlement agreement (MSA) with his ex-wife, Mary Yacoub. We conclude that, under federal law, the MSA failed to sufficiently designate the payments Essa made for Mary’s COBRA insurance premiums as nontaxable events. We reverse those portions of the order in which the circuit court concluded to the contrary, required Essa to amend his 2014 and 2015 tax returns, and awarded Mary attorney’s fees based, in part, upon her prevailing on that issue. We remand for further proceedings consistent with this opinion.

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WI Court of Appeals – District III

Case Name: Leicht Transfer & Storage Company v. Pallet Central Enterprises, Inc.

Case No.: 2016AP2334

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

Focus: Insurance Claim – Forgery Coverage

Leicht Transfer & Storage Company (Leicht) appeals summary judgments entered in favor of its various insurers: Travelers Property Casualty Company (Travelers); Acuity, A Mutual Insurance Company (Acuity); and Hiscox Insurance Company Inc. (Hiscox). Leicht was fraudulently overcharged for pallets, a cost it normally passed on to its customer, and, as a result, it incurred a loss. In granting summary judgment, the circuit court determined that Leicht’s loss was not covered under any of the policies issued by its insurers. Leicht argues the circuit court erred when it determined that neither the forgery coverage under its Acuity and Hiscox policies nor the liability coverage under its Travelers and Acuity policies covered Leicht’s loss. We affirm.

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WI Court of Appeals – District III

Case Name: Wilmington Savings Fund Society, et al. v. Randy L. Hiltner, et al.

Case No.: 2016AP2481

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

Focus: Foreclosure – Late Answer

Randy and Jean Hiltner, pro se, challenge an order denying their motion to vacate a default judgment of nondeficiency foreclosure and to allow a late answer. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Robert P. Vesper

Case No.: 2017AP173-CR

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

Focus: Sentence Modification

Robert P. Vesper appeals from a judgment of conviction and an order denying his postconviction motion asserting that the circuit court erred when it imposed a fine and that new factors warranted a modification of his sentence. Because the record supports imposition of the fine and no new factors exist that warrant a sentence modification, we affirm.

Recommended Publication

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Dontrell L. Powell

Case No.: 2017AP392-CR

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

Focus: Ineffective Assistance of Counsel

Dontrell L. Powell appeals from a judgment of conviction entered after a jury found him guilty of armed robbery and felony bail jumping, and from an order denying his motion for postconviction relief. Powell maintains that he is entitled to a new trial based on trial counsel’s ineffective assistance. We disagree and affirm.

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WI Court of Appeals – District II

Case Name: Wisconsin Pharmacal Company, LLC v. Nebraska Cultures of California, Inc., et al.

Case No.: 2017AP468

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

Focus: Motion to Amend

Nebraska Cultures of California, Inc. appeals a judgment dismissing its cross-claim against Jeneil Biotech, Inc. after the circuit court denied Nebraska’s motion to amend its cross-claim against Jeneil. We conclude Nebraska’s proposed cross-claim relates back to its original one, does not prejudice Jeneil, and so avoids the statute of limitations. We therefore reverse.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Wayne A. Johnson

Case No.: 2017AP729-CR

Officials: HRUZ, J.

Focus: Plea Withdrawal – Ineffective Assistance of Counsel

Wayne Johnson appeals a judgment, entered upon his guilty pleas, convicting him of two counts of fourth-degree sexual assault of a child and an order denying his postconviction motion. Johnson seeks to withdraw his pleas on the basis that his trial counsel provided ineffective assistance. Specifically, Johnson claims that his counsel failed to cite and argue the correct legal standard for obtaining in camera review of the victim’s counseling records and that, under the applicable facts and law, he was entitled to such review. We reject Johnson’s argument on the second point, concluding he would not have met his initial burden for entitlement to in camera review. Accordingly, Johnson suffered no prejudice from any deficient performance, and we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Matthew Tyler

Case No.: 2017AP952

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

Focus: Petition for Release Denied

Matthew Tyler appeals from orders denying his petition for release from his WIS. STAT. ch. 980 (2015-16) commitment and his WIS. STAT. § 809.30 post-judgment motion seeking supervised release or a new trial. We reject his arguments and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Raphael D. Turner, Jr.,

Case No.: 2017AP1348-CR

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

Focus: Ineffective Assistance of Counsel

Raphael Turner, Jr., appeals a judgment convicting him of three offenses and an order denying his motion for postconviction relief. Turner argues he is entitled to a new trial because the circuit court improperly admitted impeachment evidence regarding the nature of his prior juvenile delinquency adjudications. He also seeks a new trial based on ineffective assistance of counsel, arguing his trial attorney was ineffective by: (1) failing to object to a question by the State that opened the door to admission of the impeachment evidence; (2) failing to advise Turner about the permissible scope of his testimony; and (3) failing to call a certain witness to testify at trial. In the alternative, Turner argues he is entitled to resentencing because his trial attorney rendered ineffective assistance by failing to advocate on his behalf during his sentencing hearing. Turner further contends the circuit court erred by denying his postconviction motion without a Machner hearing. We reject these arguments and affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Mark A. Below

Case No.: 2016AP408-CR

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

Focus: Ineffective Assistance of Counsel

Mark Below appeals an order that denied his postconviction motion for a new trial without a hearing. The postconviction motion raised multiple claims of ineffective assistance of counsel and one claim of judicial bias. For the reasons discussed below, we conclude that the allegations in Below’s motion were insufficient to warrant a hearing. Accordingly, we affirm the order of the circuit court.

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WI Court of Appeals – District IV

Case Name: Rural Mutual Insurance Company v. Lester Buildings, LLC, et al.

Case No.: 2016AP1837

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

Focus: Insurance – Subrogation Claims

Rural Mutual Insurance Company appeals summary judgment dismissing its subrogation claims against Lester Buildings, LLC and its insurer, Phoenix Insurance Company, and against Van Wyks, Inc. and its insurer, West Bend Mutual Insurance Company, relating to damages to a barn owned by Rural Mutual’s insured, Jim Herman, Inc.  The circuit court determined that all of Rural Mutual’s claims are barred pursuant to a “waiver of subrogation” provision contained in the contract for the construction of the barn entered into between Lester Buildings and Jim Herman. Jim Herman separately appeals a judgment entered in favor of West Bend following the dismissal by the circuit court on partial summary judgment of any cross-claims by Jim Herman for consequential, incidental, liquidated or special damages. For the reasons discussed below, we affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Branden L. Richter

Case No.: 2017AP873-CR; 2017AP874-CR

Officials: Sherman, Kloppenburg and Fitzpatrick, JJ.

Focus: Ineffective Assistance of Counsel

Branden Richter appeals judgments convicting him of three felony and three misdemeanor counts, as well as an order denying his postconviction motion for a new trial. On appeal, Richter argues that he received ineffective assistance of trial counsel. For the reasons discussed below, we affirm the judgments and order of the circuit court.

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WI Court of Appeals – District IV

Case Name: Demetrius Foster, et al. v. Parker Community Credit Union

Case No.: 2017AP1423

Officials: Sherman, Blanchard and Kloppenburg, JJ.

Focus: Consumer Protection Act Violation

Demetrius Foster and Alvina Foster appeal a summary judgment order that dismissed their claims against Parker Community Credit Union for alleged violations of the Consumer Protection Act. Specifically, the Fosters contend that the credit union acted unconscionably, breached a duty of good faith, and failed to allow them their statutory right to cure a default by purchasing retroactive insurance for a boat that the Fosters had used as collateral for a loan. We reject the Fosters’ arguments and affirm the circuit court for the reasons discussed below.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Kody J. Congdon

Case No.: 2017AP1457

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

Focus: Ineffective Assistance of Counsel

Kody Congdon appeals an order that denied his postconviction motion for plea withdrawal. The issues raised on appeal are whether there was a factual basis for the plea and whether trial counsel provided ineffective assistance leading up to the plea by arranging for Congdon to take a polygraph test and by advising Congdon that he could not take the stand and perjure himself. We conclude that Congdon is judicially estopped from challenging the factual basis for the plea, and that the facts adduced at the postconviction hearing do not support a conclusion that trial counsel provided ineffective assistance. Accordingly, we affirm.

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WI Court of Appeals – District IV

Case Name: Village of Shorewood Hills v. Sivachandran Swaminathan

Case No.: 2017AP1757

Officials: FITZPATRICK, J.

Focus: Motion for New Trial – Failure to File

The Village of Shorewood Hills appeals from an order of the Dane County Circuit Court denying its motion for a new trial. Based on Sivachandran Swaminathan’s failure to file a response brief and his abandonment of this appeal, I summarily reverse the order of the circuit court and remand for further proceedings consistent with this opinion. See WIS. STAT. Rule 809.83(2).

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Harlan L. Schultz

Case No.: 2017AP2185

Officials: FITZPATRICK, J.

Focus: OWI – Plea Withdrawal

Harlan Schultz pleaded no contest to a charge of fourth offense operating a motor vehicle while intoxicated (OWI) in the Waupaca County Circuit Court. Schultz later filed a motion to withdraw his plea. The circuit court denied the motion, and Schultz now appeals. Schultz’s primary argument concerns the alleged ineffective assistance of his trial counsel. Schultz also contends that his plea was not entered into knowingly, intelligently, and voluntarily. I reject Schultz’s arguments and affirm the order of the circuit court.

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WI Court of Appeals – District IV

Case Name: Portage County v. J.W.K.

Case No.: 2017AP2429

Officials: BLANCHARD, J.

Focus: Sufficiency of Evidence

J.W.K. appeals an order extending his involuntary commitment by 12 months. J.W.K. argues that Portage County failed to prove by clear and convincing evidence that J.W.K. would be a proper subject for commitment under WIS. STAT. ch. 51 if his treatment were to be withdrawn, and therefore the circuit court erred in extending J.W.K.’s commitment. I conclude that the evidence presented at J.W.K.’s recommitment hearing, and the circuit court’s findings based on that evidence, support extending the commitment, and accordingly affirm.

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WI Court of Appeals – District IV

Case Name: Adams County Health & Human Services Department v. M.J.A.

Case No.: 2018AP249

Officials: LUNDSTEN, P.J.

Focus: Termination of Parental Rights

M.J.A. appeals the circuit court’s order that terminated M.J.A.’s parental rights to J.S. based on the ground that J.S. was in continuing need of protection or services, commonly called the “continuing CHIPS” ground. M.J.A. argues that the circuit court erred by granting summary judgment on this ground because the parties’ summary judgment submissions demonstrate that there exists a genuine issue of material fact. I agree with M.J.A. and, therefore, reverse and remand for further proceedings.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Office of Lawyer Regulation v. Amie B. Trupke

Case No.: 2018 WI 43

Focus: Attorney Disciplinary Proceedings

We review a stipulation filed pursuant to Supreme Court Rule (SCR) 22.12 between the Office of Lawyer Regulation (OLR) and Attorney Amie B. Trupke. The stipulation provides that Attorney Trupke committed two counts of professional misconduct and requests that the court suspend Attorney Trupke’s license to practice law in this state for one year.

After carefully reviewing this matter, we accept the stipulation and impose the requested discipline. We do not order any restitution, as none was requested by the OLR. Because this matter has been resolved by a stipulation under SCR 22.12 without the need for the appointment of a referee, we impose no costs on Attorney Trupke.

Affirmed

Concur:

Dissent:

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Supreme Court Digests

United States Supreme Court

Case Name: Jesner, et al. v. Arab Bank, PLC

Case No.: 16-499

Focus: Statutory Interpretation – Alien Tort

Petitioners in this case, or the persons on whose behalf petitioners now assert claims, allegedly were injured or killed by terrorist acts committed abroad. Those terrorist acts, it is contended, were in part caused or facilitated by a foreign corporation. Petitioners now seek to impose liability on the foreign corporation for the conduct of its human agents, including its then-chairman and other highranking management officials. The suits were filed in a United States District Court under the Alien Tort Statute, commonly referred to as the ATS. See 28 U. S. C. §1350. The foreign corporation charged with liability in these ATS suits is Arab Bank, PLC; and it is respondent here. Some of Arab Bank’s officials, it is alleged, allowed the Bank to be used to transfer funds to terrorist groups in the Middle East, which in turn enabled or facilitated criminal acts of terrorism, causing the deaths or injuries for which petitioners now seek compensation. Petitioners seek to prove Arab Bank helped the terrorists receive the moneys in part by means of currency clearances and bank transactions passing through its New York City offices, all by means of electronic transfers.

It is assumed here that those individuals who inflicted death or injury by terrorism committed crimes in violation of well-settled, fundamental precepts of international law, precepts essential for basic human-rights protections. It is assumed as well that individuals who knowingly and purposefully facilitated banking transactions to aid, enable, or facilitate the terrorist acts would themselves be committing crimes under the same international-law prohibitions.

Petitioners contend that international and domestic laws impose responsibility and liability on a corporation if its human agents use the corporation to commit crimes in violation of international laws that protect human rights. The question here is whether the Judiciary has the authority, in an ATS action, to make that determination and then to enforce that liability in ATS suits, all without any explicit authorization from Congress to do so.

The answer turns upon the proper interpretation and implementation of the ATS. The statute provides: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” §1350. The Court must first ask whether the law of nations imposes liability on corporations for human-rights violations committed by its employees. The Court must also ask whether it has authority and discretion in an ATS suit to impose liability on a corporation without a specific direction from Congress to do so.

Affirmed

Dissenting: SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG, BREYER, and KAGAN, JJ., joined.

Concurring: THOMAS, J., filed a concurring opinion. ALITO, J., and GORSUCH, J., filed opinions concurring in part and concurring in the judgment.
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United States Supreme Court

Case Name: Oil States Energy Services, LLC v. Greene’s Energy Group LLC.

Case No.: 16-712

Focus: Inter Partes Review – Constitutional Violation

The Leahy-Smith America Invents Act, 35 U. S. C. §100 et seq., establishes a process called “inter partes review.” Under that process, the United States Patent and Trademark Office (PTO) is authorized to reconsider and to cancel an issued patent claim in limited circumstances. In this case, we address whether inter partes review violates Article III or the Seventh Amendment of the Constitution. We hold that it violates neither.

Affirmed

Dissenting: GORSUCH, J., filed a dissenting opinion, in which ROBERTS, C. J., joined.

Concurring: REYER, J., filed a concurring opinion, in which GINSBURG and SOTOMAYOR, JJ., joined.
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United States Supreme Court

Case Name: Sas Institute Inc. v. Iancu Director, United States Patent and Trademark Office, et al.

Case No.: 16-969

Focus: Statutory Interpretation

This case requires us to engage in a typical judicial exercise, construing a statute that is technical, unclear, and constitutes a minor procedural part of a larger administrative scheme. I would follow an interpretive technique that judges often use in such cases. Initially, using “traditional tools of statutory construction,” INS v. CardozaFonseca, 480 U. S. 421, 446 (1987), I would look to see whether the relevant statutory phrase is ambiguous or leaves a gap that Congress implicitly delegated authority to the agency to fill. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842–843 (1984). If so, I would look to see whether the agency’s interpretation is reasonable. Id., at 843. Because I believe there is such a gap and because the Patent Office’s interpretation of the ambiguous phrase is reasonable, I would conclude that the Patent Office’s interpretation is lawful.

Reversed and Remanded

Dissenting: GINSBURG, J., filed a dissenting opinion, in which BREYER, SOTOMAYOR, and KAGAN, JJ., joined. BREYER, J., filed a dissenting opinion, in which GINSBURG and SOTOMAYOR, JJ., joined, and in which KAGAN, J., joined except as to Part III–A.

Concurring:
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