Weekly Case Digests — June 4-June 8, 2018

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Rodrigo Ramos-Braga v. Jefferson B. Sessions, III

Case No.: 17-1998

Officials: BAUER, KANNE, and BARRETT, Circuit Judges

Focus: Immigration Removal Order

Rodrigo Ramos-Braga, a citizen of Brazil, petitions for review of the denial of his second motion to reopen proceedings on his applications for special-rule cancellation of removal, withholding of removal, and protection under the Convention Against Torture (CAT). His motion was both numerically barred and untimely filed with the Board of Immigration Appeals, but Ramos-Braga argued that these limits should be excused under the doctrine of equitable tolling for ineffective assistance of counsel or under a statutory exception based on changed country conditions. The Board determined that neither exception applied and that the time and numerical limits therefore barred his motion. Because the Board did not abuse its discretion, we deny the petition.

Petition Denied

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7^th Circuit Court of Appeals

Case Name: Prolite Building Supply, LLC, et al. v. MW Manufacturers, Inc., et al.

Case No.: 17-3149

Officials: EASTERBROOK and ROVNER, Circuit Judges, and GILBERT, District Judge

Focus: Statutory Interpretation

Prolite Building Supply bought Ply Gem windows from MW Manufacturers. (The parties use “Ply Gem” for both the product and its maker; we do the same.) Prolite resold the windows to residential builders in Wisconsin. Some of the homeowners were not satisfied with the windows, which admitted air even when closed. They complained to the builders, which complained to Prolite, which complained to Ply Gem. Working together under a contract that made Prolite the windows’ principal servicer, Prolite and Ply Gem solved some but far from all of the problems. Contractors stopped buying from Prolite, which stopped paying Ply Gem for earlier deliveries.

Prolite and 12 homeowners filed suit in state court. Prolite contended that Ply Gem broke a promise to make the builders and ultimate customers happy. The homeowners made claims under the warranties that accompanied the windows. Ply Gem removed the action to federal court and counterclaimed against Prolite for unpaid bills. It added An‐ drew Johnson and Michael Newman, Prolite’s only two members, as additional parties. (Johnson and Newman had guaranteed payment of Ply Gem’s invoices.) Great Lakes Window, a company affiliated with Ply Gem, filed its own federal suit against Prolite, Johnson, and Newman, seeking to collect other invoices. Additional homeowners intervened in the removed suit. The district court consolidated these actions, and the caption that begins this opinion names the main contestants without going into excessive detail.

Prolite contends that what Ply Gem should have done was either reinstall all of the windows, without specific requests, or design a new line of windows with better attributes and replace the old windows with the new ones, again without requests. Only those two steps could have kept the customers happy, Prolite insists. The problem, as the district judge observed, is that the service agreement does not require Ply Gem to keep the customers happy. (That’s the function of the warranties.) Instead the service agreement requires Prolite to keep the customers happy by performing repairs in exchange for a discount. The district court’s opinion meticulously discusses the contractual language. It is not necessary to repeat that analysis in the Federal Reporter. Nor need we repeat the district court’s convincing resolution of the dispute about expert evidence that Prolite proffered. The homeowners’ claims, by contrast, pose a knotty problem. They can be resolved under the supplemental jurisdiction only if they “are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.” 28 U.S.C. §1367(a). The statute does not define “case or controversy,” nor does Article III. Courts often ask whether the claims share a common nucleus of operative facts. See, e.g., Houskins v. Sheahan, 549 F.3d 480, 495 (7th Cir. 2008). This jiggles the vagueness problem around a little without solving it.

What’s more, we cannot forget that we have two suits, the second one (by Great Lakes) filed initially in federal court with both complete diversity and stakes exceeding $75,000 for every litigant. Each of these consolidated suits must be considered independently. Hall v. Hall, 138 S. Ct. 1118 (2018). The dispute between Prolite and Ply Gem could be resolved under the supplemental jurisdiction in the suit by Great Lakes no matter what one makes of the homeowners’ claims. The judgment of the district court is affirmed, except with respect to the homeowners’ claims. The judgment dealing with those claims is vacated, and the case is remanded to the district court with instructions to remand them to state court.

Affirmed in part. Vacated and Remanded in part.

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7^th Circuit Court of Appeals

Case Name: New West, L.P. et al. v. City of Joliet, Illinois, et al.

Case No.: 17-2865

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

Focus: FHA Violation

This is the fourth published appellate opinion in a long-running dispute between New West and the City of Joliet. New West filed this suit in March 2005, contending that the City had interfered with the way in which it set rents at the Evergreen Terrace apartment complex under the national government’s mark-to-market program for rates at subsidized apartments. New West also contended that the City was violating the Fair Housing Act (FHA), 42 U.S.C. §§ 3601–31, and many other rules of state and federal law. Our first decision held that these claims belong to New West, not its renters (as the district court had held). 491 F.3d 717 (7th Cir. 2007).

New West’s current problem is of its own making. It concedes that the FHA was not a compulsory counterclaim in the condemnation suit. New West’s lawyer asserted at oral argument that it presented the FHA arguments as defenses to the City’s suit because it was afraid that, otherwise, the judge would have deemed them forfeited or waived. That’s inconceivable. This suit began six months before the condemnation action; nothing in it has been forfeited or waived. When New West imported its FHA claim into the condemnation action, Joliet protested, asking the judge to rule that the FHA has no place in an eminent-domain action. Joliet thus waived any argument that the FHA theories had to be presented as defenses in the City’s suit. New West was free to reserve the FHA claim for this suit, where it would have been entitled to a jury trial. Its FHA claim was resolved in a bench trial only because New West insisted on presenting it there.

The condemnation action could have been resolved speedily by leaving the FHA claim to this suit. Once we held in 2009 that federal financing did not block the use of state and local eminent-domain powers, the condemnation claim could have gone to trial with a simple question: Was the taking for a public purpose? Then the FHA claim could have been resolved, by a jury, in this suit. But New West wanted the FHA to be treated as a defense to condemnation, and the district court acquiesced. New West’s own choice is responsible for the fact that a judge rather than a jury brought the FHA claim to a conclusion.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Monta Groce

Case No.: 16-3845

Officials: BAUER, MANION, and SYKES, Circuit Judges

Focus: Jury Instructions

Monta Groce appeals witness retaliation and sex-trafficking convictions. The government concedes the retaliation jury instruction failed to state a particular unsupported element. We vacate the retaliation conviction and remand for resentencing. Regarding sex trafficking, Groce raises several challenges. He argues the court erred by 1) excluding evidence of the victims’ alleged prostitution histories; 2) barring cross-examination of a victim on her alleged prostitution history after she testified she had no such history; 3) issuing an instruction lowering the mens rea required for sex trafficking; and 4) admitting prejudicial evidence of uncharged sex trafficking. He also argues cumulative error requires retrial. We affirm the sex-trafficking convictions.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Len Boogaard, et al. National Hockey League, et al.

Case No.: 17-2355

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

Focus: Failure to State Claim

Len and Joanne Boogaard appeal the dismissal of the wrongful-death action they brought as the personal representatives of the estate of their son, Derek Boogaard. They devote their appeal almost entirely to arguments that would spark excitement—or fear—in the heart of a civil procedure student. There is a Hanna v. Plumer problem—whether Federal Rule of Civil Procedure 17(b)(3) controls the Boogaards’ ability to bring this suit. 380 U.S. 460 (1965). There is an Erie Railroad Co. v. Tompkins question— whether federal or state law applies if Rule 17(b)(3) does not control. 304 U.S. 64 (1938). There is a choice-of-law problem—whether Illinois, Minnesota, or New York law applies if this is a matter of state law. And there is even a relation back issue—whether, if Minnesota law applies, Federal Rule of Civil Procedure 17(a)(3)’s relation-back provision can save the Boogaards from an error that it is otherwise too late to correct.

At the end of the day, however, it is an argument to which the Boogaards give short shrift that disposes of their case: forfeiture. For the reasons that follow, we agree with the district court that by failing to respond to the National Hockey League’s argument that their complaint fails to state a claim, the Boogaards forfeited any argument that it does. Their suit thus fails regardless of whether they can run the procedural gantlet of showing that they are the proper parties to bring it.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Holly B. Geraci v. Union Square Condominium Association

Case No.: 17-1945

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

Focus: Jury Instructions

This appeal arises from a Fair Housing Act (“FHA”) failure to accommodate and retaliation claim. A jury found in favor of the defendant, Union Square Condominium Association (“Union Square”). The plaintiff, Holly Geraci, now appeals asserting that the district court erroneously instructed the jury as to the elements for her retaliation claim, and erroneously allowed Union Square to present testimony from an expert witness as to whether or not she qualified as handicap under the FHA.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Ruslana Melnik, et al. v. Jefferson B. Sessions III

Case No.: 15-2212; 15-2929; 15-3615

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

Focus: Immigration – Asylum Claim

Ruslana Melnik and Mykhaylo Gnatyuk, a married couple who are citizens of Ukraine, petition for review of decisions of the Board of Immigration Appeals (“Board”). The Board dismissed their appeal from the decision of an immigration judge, denying their applications for asylum and ordering their removal from the United States. The Board also denied their subsequent motions to reconsider the dismissal and to reopen proceedings, as well as their motions to reconsider those denials. We have consolidated their timely petitions for review. For the reasons set forth in this opinion, we deny the petitions.

Petition Denied

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Robert Ross

Case No.: 2016AP74-CR

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

Focus: Sentence Modification

Robert Ross appeals a judgment of conviction and orders denying him postconviction relief. He alleges that he was deprived of the right to be present at his trial when the circuit court considered a jury question while he was absent from the courtroom. He further alleges that the circuit court erroneously exercised its sentencing discretion, and that a new factor warrants sentence modification. We reject his claims and affirm.

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WI Court of Appeals – District III

Case Name: Debra James v. Estate of Robert Wicke, et al.

Case No.: 2016AP2184

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

Focus: Estate – Beneficiary

The Estate of Robert Wicke appeals a grant of summary judgment in favor of Debra James, the trustee of certain trusts established by Norman Wicke and approved by the circuit court in a prior Taylor County case. Each of the trusts contained an in terrorem clause that required a beneficiary to forfeit his or her share if he or she, directly or indirectly, contested or opposed the validity of the instrument or continued any legal proceedings to set aside the instrument. The circuit court concluded Robert had forfeited his share in two trusts by challenging them in the prior case. That challenge included Robert’s filing of an appeal from an adverse judgment, in which we rejected Robert’s arguments on the merits, and his petitioning the Wisconsin Supreme Court for review of our decision. We conclude the circuit court properly granted Debra’s summary judgment motion, and we therefore affirm.

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WI Court of Appeals – District III

Case Name: Jodi Zeichert, et al. v. Adam J. Riehl, et al.

Case No.: 2017AP80

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

Focus: Insurance Claim – Liability

This case arises out of a motor vehicle accident in which Lorraine Zeichert and Matthew Zeichert sustained injuries, and Ryan Zeichert was killed. The Zeicherts appeal a judgment and order granting summary judgment to Todd Gruetzmacher and his insurers, Ellington Mutual Insurance Company (Ellington Mutual), Liberty Mutual Insurance Company and Liberty Mutual Fire Insurance Company (together, Liberty Mutual), and granting Progressive Casualty Insurance Company’s (Progressive) motion to terminate its defense of Gruetzmacher. The Zeicherts argue the circuit court erred by concluding that Gruetzmacher was not vicariously liable for Adam Riehl’s negligence because a master-servant relationship did not exist between Gruetzmacher and Riehl at the time of the accident. They also contend the court erred in granting Progressive’s motion to terminate its defense. We reject the Zeicherts’ argument and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. William Canales, Jr.

Case No.: 2017AP742-CR

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

Focus: Motion to Suppress Denied

William Canales, Jr. appeals from his judgment of conviction, entered by the trial court upon accepting his guilty plea for one count of possession with intent to deliver between ten and fifty grams of heroin and one count of possession with intent to deliver more than forty grams of cocaine, both as second or subsequent offenses.

Canales appeals the trial court’s denial of his motion to suppress the evidence that was obtained after a second search warrant was executed at his residence. He argues that the second warrant was based on illegally-obtained statements he made while in custody. The trial court did indeed find that there were illegally-obtained statements included in the affidavit prepared in support of the second warrant; however, the court determined that after those statements were stricken, the information remaining in the affidavit was sufficient to establish probable cause for issuing the warrant. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Damon Donte Bealin

Case No.: 2017AP1516-CR

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

Focus: Ineffective Assistance of Counsel

Damon Donte Bealin appeals from a judgment of conviction for one count of first-degree reckless homicide as a party to a crime and one count of being a felon in possession of a firearm, contrary to WIS. STAT. §§ 940.02(1), 939.05, and 941.29(2) (2013-14). He also appeals from an order denying his motion for postconviction relief, which sought a new trial on grounds of ineffective assistance of trial counsel. Bealin argues that he is entitled to an evidentiary hearing on his postconviction motion. We disagree and affirm the judgment and order.

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WI Court of Appeals – District III

Case Name: City of Eau Claire v. Debora Ann West

Case No.: 2017AP1527

Officials: HRUZ, J.

Focus: Statutory Interpretation – Liability

Debora West was cited for violating WIS. STAT. § 346.675(1), which imposes liability upon a vehicle owner when his or her vehicle is operated in the commission of a “hit-and-run.”  The circuit court concluded West was not guilty and dismissed this citation. While West owned the vehicle involved in the hit-and-run incident, the court interpreted § 346.675(4)(b). as providing West with a defense to liability because she had “negligently” “los[t] control of her vehicle and of its whereabouts” before the accident.

The City now appeals, arguing the circuit court erred in its interpretation and application of WIS. STAT. § 346.675.  As explained below, we agree with the City. We thus reverse the order finding West not guilty and dismissing the citation, and we remand for the court to hold further proceedings consistent with this opinion.

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WI Court of Appeals – District I

Case Name: Lakisha K. Wilburn v. Robert Nash, et al.

Case No.: 2017AP1716

Officials: KESSLER, J.

Focus: Abuse of Discretion – Malicious Prosecution

Lakisha K. Wilburn appeals two orders of the circuit court granting summary judgment in favor of Robert and Sarita Nash. We affirm. Wilburn did not plead anything that qualifies as “special damages.” Accordingly, she has failed to plead at least one element of malicious prosecution, there is no basis for her claim of relief, and the circuit court did not erroneously exercise its discretion in denying her motion.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Royce O. Bernard

Case No.: 2017AP2162-CR

Officials: BRASH, J.

Focus: Postconviction Motion Denied

Royce O. Bernard appeals from his judgment of conviction, entered by the circuit court upon accepting his guilty plea to one count of carrying a concealed weapon, and from an order denying his motion for postconviction relief without granting an evidentiary hearing. In his postconviction motion, Bernard argued that his trial counsel was ineffective because he failed to challenge the credibility of the police officer who testified at the hearing on Bernard’s motion to suppress. The circuit court found that Bernard had not raised sufficient facts to warrant an evidentiary hearing. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Larry M. Shannon

Case No.: 2016AP1971-CR

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

Focus: Sufficiency of Evidence

Larry Shannon appeals from judgments convicting him of twelve counts allocated among the following crimes against three victims: first-degree sexual assault of a child, attempted first-degree intentional homicide, incest, false imprisonment, and strangulation and suffocation. On appeal, Shannon challenges the circuit court’s admission of other acts evidence and its exclusion from evidence of two articles discussing DNA evidence. We conclude that if any error occurred in the admission of the other acts evidence, such error was harmless. We further conclude that the circuit court properly exercised its discretion when it excluded the DNA evidence articles. We affirm.

A jury found Shannon guilty of twelve counts arising from a multiday rampage. The evidence at trial included the testimony and prior statements of the victims, testimony from law enforcement officers, a physician and a nurse who described the severity of the injuries Shannon inflicted, and a DNA analyst. The evidence also included testimony about other criminal acts Shannon committed in Kankakee, Illinois. On appeal, Shannon does not challenge the sufficiency of the evidence of his guilt.

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WI Court of Appeals – District II

Case Name: Sarah Garver v. Carolyn Krueger

Case No.: 2017AP978

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

Focus: Sufficiency of Evidence

In this residential real estate misrepresentation case, Carolyn Krueger appeals from an order denying her posttrial motion to change answers in the verdict on the basis of insufficient evidence or, alternatively, for a new trial. The order also granted Sarah Garver’s motion for all costs of investigation and litigation reasonably incurred pursuant to WIS. STAT. § 895.446(3)(b) (2015-16). We affirm.

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WI Court of Appeals – District II

Case Name: William Hyde v. Labor and Industry Review Commission, Daimler Chrysler Motors Company, LLC, et al.

Case No.: 2017AP1263

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

Focus: Sufficiency of Evidence

William Hyde appeals from an order confirming a decision of the Labor and Industry Review Commission (LIRC) that he is capable of working eight-hour days, with certain restrictions on his physical activities. As credible and substantial evidence supports LIRC’s finding, we affirm.

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WI Court of Appeals – District II

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

Case No.: 2017AP1807-CR

Officials: NEUBAUER, C.J.

Focus: Motion to Suppress Denied

Jasetta M. Smith appeals from a judgment of conviction for operating a motor vehicle with a restricted controlled substance. Her conviction followed the discovery of marijuana in the car Smith was driving when she was pulled over for a suspected traffic violation and her subsequent admission that she smoked marijuana the prior afternoon. A dog sniff was conducted by other officers while the officer who stopped Smith was writing a temporary compliance citation after no proof of insurance was provided. Smith argues the circuit court erred in denying her motion to suppress on grounds that the officers unreasonably extended the duration of the traffic stop for the purpose of conducting a dog sniff. We disagree and therefore affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Michael H. Gilbreath

Case No.: 2016AP2471

Officials: Blanchard, Kloppenburg, and Fitzpatrick, JJ.

Focus: Ineffective Assistance of Counsel

A jury found Michael Gilbreath guilty of first degree sexual assault of a child based on allegations that Gilbreath had repeated sexual contact with his step-granddaughter, S.L., beginning when she was nine and ending when she was twelve. Gilbreath makes four arguments on appeal: (1) he is entitled to a new trial in the interest of justice because the real controversy was not fully tried; (2) his trial counsel was ineffective for failing to present additional evidence to undermine S.L.’s credibility; (3) the State’s failure to disclose an alleged recorded statement of S.L. warrants a new trial; and (4) the circuit court erred in denying Gilbreath’s post-conviction request for an in camera review of alleged mental health records of S.L. For reasons discussed below, we affirm.

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WI Court of Appeals – District IV

Case Name: Enbridge Energy Company, Inc. et al, v. Dane County, et al.

Case No.: 2016AP2503; 2017AP13

Officials: Sherman, Blanchard, and Fitzpatrick, JJ.

Focus: Insurance Claim – Permit

This case involves a conditional use permit issued by a Dane County zoning committee that allows the operator of a crude oil pipeline to significantly expand the volume of oil pumped through the line. The permit contains conditions requiring Enbridge Energy Company to “procure and maintain” insurance with detailed specifications that would, in the view of the zoning committee, ensure the availability of sufficient funds for remediation, clean up, and payment for damages in the event of a crude oil spill.

One notable feature of this case is that the state legislature enacted a new law in the midst of the County’s consideration of the Enbridge permit. The new state law places a limitation on the insurance requirements that counties can include in conditional use permits issued to operators of interstate hazardous liquid pipelines, such as Enbridge, in one particular circumstance. See 2015 Wisconsin Act 55, § 1923e (Eff. July 14, 2015); WIS. STAT. §§ 59.70(25), 59.69(2)(bs) (2015-16). 2 More specifically, under the Act 55 insurance limitation, a county may not require an interstate hazardous liquid pipeline operator to obtain insurance if the operator “carries comprehensive general liability insurance coverage that includes coverage for sudden and accidental pollution liability.” § 59.70(25).

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WI Court of Appeals – District IV

Case Name: James Edward Grant v. John Schultz

Case No.: 2017AP534

Officials: BLANCHARD, J.

Focus: Due Process Violation

James Grant, pro se, appeals the circuit court’s dismissal of his small claims action for lack of proof. Defendant John Schultz has failed to file a timely brief, and the untimely brief that he has filed does not address any potential legal claim in this case. I affirm because Grant failed to state a claim for relief.

On appeal, Grant refers, in each case only briefly, to the following legal concepts: negligence; the constitutional right of due process; the availability of enforcement of constitutional rights under 42 U.S.C. § 1983; the general proposition that governmental agencies cannot act in vindictive, retaliatory, or arbitrary ways; and the general proposition that governmental entities must act consistently with regulations that they create. In addition, he mentions what he submits are “directional signage” rules of something called the American Restroom Association. As occurred in the trial, Grant fails to line up any allegation at trial with a valid legal claim.

Grant “asks this court to read his brief generously,” bearing in mind that he lacks legal training. I bear this in mind. However, his failure is complete. It is not a question of his having missed a step, used the wrong terms, or failed to understand details of a legal rule. Accordingly, I affirm dismissal.

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WI Court of Appeals – District IV

Case Name: Local 311 of the International Association of Firefighters v. City of Sun Prairie

Case No.: 2017AP749

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

Focus: Arbitration Award

The City of Sun Prairie appeals the circuit court’s judgment confirming an arbitration award in favor of two individuals the City employed as paramedics. We affirm based on mootness, but also explain why the City’s arguments do not demonstrate why we should reverse the circuit court’s decision affirming the arbitration award.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Wingra Redi-Mix, Inc. v. Burial Sites Preservation Board

Case No.: 2018 WI 54

Focus: Vote Reporting In Case Decisions

In the instant case, the court is equally divided on the question of whether the unpublished decision of the court of appeals should be affirmed or reversed. The per curiam opinion does not list the names and votes of the participating justices. In Kleynerman, an opinion issued on March 21, 2017, I catalogued 115 of this court’s cases from 1885 through 2016 in which the names and votes of the participating justices were presented and 26 cases from 1849 through 2016 in which the names and votes of the participating justices were not presented.

Since Kleynerman, a total of two cases (including Kleynerman) have resulted in an equally divided court. The court did not present the names and votes of the participating justices in either case. In the instant case and its companion, the court continues to deviate from the court’s historical practice by failing to present the names and votes of the participating justices. The court has still provided no explanation for its change in practice.

Although the dominant practice has been to list the names and votes of the participating justices, this court’s historical practice has been inconsistent, and there is no established rule resolving the issue. My view is that the court should consistently report the names and votes of the participating justices in the event of a tie vote. Such a practice advances the important goal of transparency in government and is consistent with every other opinion of this court in which the vote of each participating justice is known to the public.

Affirmed

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

Dissent:
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WI Supreme Court

Case Name: Wingra Redi-Mix Inc. v. State Historical Society of Wisconsin, et al.

Case No.: 2018 WI 55

Focus: Vote Reporting In Case Decisions

In the instant case, the court is equally divided on the question of whether the unpublished decision of the court of appeals should be affirmed or reversed. The per curiam opinion does not list the names and votes of the participating justices. In Kleynerman, an opinion issued on March 21, 2017, I catalogued 115 of this court’s cases from 1885 through 2016 in which the names and votes of the participating justices were presented and 26 cases from 1849 through 2016 in which the names and votes of the participating justices were not presented.

Since Kleynerman, a total of two cases (including Kleynerman) have resulted in an equally divided court. The court did not present the names and votes of the participating justices in either case. In the instant case and its companion, the court continues to deviate from the court’s historical practice by failing to present the names and votes of the participating justices. The court has still provided no explanation for its change in practice.

Although the dominant practice has been to list the names and votes of the participating justices, this court’s historical practice has been inconsistent, and there is no established rule resolving the issue. My view is that the court should consistently report the names and votes of the participating justices in the event of a tie vote. Such a practice advances the important goal of transparency in government and is consistent with every other opinion of this court in which the vote of each participating justice is known to the public.

Affirmed

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

Dissent:
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WI Supreme Court

Case Name: Office of Lawyer Regulation v. Michael D. Mandelman

Case No.: 2018 WI 56

Focus: Attorney Disciplinary Proceedings

We review, pursuant to Supreme Court Rule (SCR) 22.33(3), a report filed by Referee James W. Mohr, Jr., recommending the court reinstate the license of Attorney Michael D. Mandelman to practice law in Wisconsin, with conditions. The Office of Lawyer Regulation (OLR) did not appeal the referee’s recommendation. After fully reviewing this matter, we conclude that Attorney Mandelman has not satisfied the criteria required to resume the practice of law in this state, and we deny his petition for reinstatement. We also determine that Attorney Mandelman should be required to pay the costs of this reinstatement proceeding, which were $7,674.57 as of October 10, 2017.

The standards that apply to all petitions for reinstatement after a disciplinary suspension or revocation are set forth in SCR 22.31(1). In particular, the petitioning attorney must demonstrate by clear, satisfactory, and convincing evidence that he or she has the moral character necessary to practice law in this state, that his or her resumption of the practice of law will not be detrimental to the administration of justice or subversive of the public interest, and that the attorney has complied fully with the terms of the suspension or revocation order and the requirements of SCR 22.26.

In addition, SCR 22.31(1)(c) incorporates the statements that a petition for reinstatement must contain pursuant to SCR 22.29(4)(a)-(k) and (4m). Thus, the petitioning attorney shall demonstrate that the required representations in the reinstatement petition are substantiated.

When reviewing referee reports in reinstatement proceedings, we utilize standards of review similar to those we use for reviewing referee reports in disciplinary proceedings. We do not overturn a referee’s findings of fact unless they are clearly erroneous. On the other hand, we review a referee’s legal conclusions, including whether the attorney has satisfied the criteria for reinstatement, on a de novo basis. In re Disciplinary Proceedings Against Jennings, 2011 WI 45, ¶39, 334. Wis. 2d 335, 801 N.W.2d 304; In re Disciplinary Proceedings Against Gral, 2010 WI 14, ¶22, 323 Wis. 2d 280, 779 N.W.2d 168.

Affirmed

Concur:

Dissent: ABRAHAMSON, J., dissents (opinion filed).
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WI Supreme Court

Case Name: Federal National Mortgage Association v. Cory Thompson

Case No.: 2018 WI 57

Focus:  Foreclosure – Claim Preclusion

This appeal comes before the court on certification by the court of appeals.1 Cory Thompson, the debtor defendant, appeals an order of the Dane County Circuit Court, Amy Smith, Judge, granting Federal National Mortgage Association a foreclosure judgment and a monetary judgment of $152,355.98, plus any amounts held in escrow, interest after August 16, 2012, and costs incurred by Federal National Mortgage Association.

The issue certified is as follows: Where a foreclosure action brought on a borrower’s default on a note has been dismissed, is the lender barred by claim preclusion from bringing a second foreclosure action on the borrower’s continuing default on the same note?

Essentially, we must answer the following question: When a foreclosure action brought on the borrower’s default on the note has been dismissed with prejudice, and the lender had not validly accelerated payment of the amount due under the note, does claim preclusion bar the lender from bringing a second foreclosure action based upon the borrower’s continuing default on the same note?

We conclude that when a lender does not validly accelerate payment of the amount due under the note and a foreclosure action brought on the borrower’s default on an installment payment under the note has been dismissed with prejudice, claim preclusion does not bar the lender from bringing a subsequent foreclosure action based upon the borrower’s continuing default on the same note.

Affirmed

Concur:

Dissent:
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WI Supreme Court

Case Name: Office of Lawyer Regulation v. James M. Schoenecker

Case No.: 2018 WI 58

Focus:  Attorney Disciplinary Proceedings
Attorney James M. Schoenecker has appealed Referee James W. Mohr Jr.’s recommendation that Attorney Schoenecker’s petition for the reinstatement of his license to practice law in Wisconsin be denied. Upon careful review, we agree with the referee that Attorney Schoenecker has failed to meet his burden of proof to establish the requirements for reinstatement at this time. Accordingly, we accept the referee’s recommendation that the petition for reinstatement be denied. However, we determine that Attorney Schoenecker can again petition for reinstatement six months after the date of this opinion. As is our usual practice, we further conclude that Attorney Schoenecker should be required to pay the full costs of this reinstatement proceeding, which are $6,809.66 as of March 23, 2018.

Affirmed

Concur:

Dissent:
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Supreme Court Digests

United States Supreme Court

Case Name: Epic Systems Corp. v. Lewis

Case No.: 16-285

Focus: Arbitration Agreement Enforcement

Should employees and employers be allowed to agree that any disputes between them will be resolved through one-on-one arbitration? Or should employees always be permitted to bring their claims in class or collective actions, no matter what they agreed with their employers? As a matter of policy these questions are surely debatable. But as a matter of law the answer is clear. In the Federal Arbitration Act, Congress has instructed federal courts to enforce arbitration agreements according to their terms—including terms providing for individualized proceedings. Nor can we agree with the employees’ suggestion that the National Labor Relations Act (NLRA) offers a conflicting command. It is this Court’s duty to interpret Congress’s statutes as a harmonious whole rather than at war with one another. And abiding that duty here leads to an unmistakable conclusion. The NLRA secures to employees rights to organize unions and bargain collectively, but it says nothing about how judges and arbitrators must try legal disputes that leave the workplace and enter the courtroom or arbitral forum. This Court has never read a right to class actions into the NLRA—and for three quarters of a century neither did the National Labor Relations Board. Far from conflicting, the Arbitration Act and the NLRA have long enjoyed separate spheres of influence and neither permits this Court to declare the parties’ agreements unlawful.

Reversed and Remanded in part. Affirmed in part.

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

Concurring: THOMAS, J., filed a concurring opinion.
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United States Supreme Court

Case Name: Upper Skagit Indian Tribe v. Lundgren

Case No.: 17-387

Focus: Statutory Interpretation – Sovereign Immunity

The Upper Skagit Indian Tribe purchased a roughly 40-acre plot of land and then commissioned a boundary survey. The survey convinced the Tribe that about an acre of its land lay on the other side of a boundary fence between its land and land owned by Sharline and Ray Lundgren. The Lundgrens filed a quiet title action in Washington state court, invoking the doctrines of adverse possession and mutual acquiescence, but the Tribe asserted sovereign immunity from the suit. Ultimately, the State Supreme Court rejected the Tribe’s immunity claim and ruled for the Lundgrens, reasoning that, under County of Yakima v. Confederated Tribes and Bands of Yakima Nation, 502 U. S. 251, tribal sovereign immunity does not apply to in rem suits.

Yakima addressed not the scope of tribal sovereign immunity, but a question of statutory interpretation of the Indian General Allotment Act of 1887. That Act authorized the President to allot parcels of reservation land to individual tribal members and directed the United States eventually to issue fee patents to the allottees as private individuals. In 1934, Congress reversed course but made no attempt to withdraw the lands already conveyed. As a result, Indian reservations sometimes contain both trust land held by the United States and fee-patented land held by private parties. Yakima concerned the tax consequences of this intermixture. This Court had previously held that §6 of the General Allotment Act could no longer be read as allowing States to impose in personam taxes on transactions between Indians on fee-patented land within a reservation. Moe v. Confederated Salish and Kootenai Tribes of Flathead Reservation, 425 U. S. 463, 479–481. The Court reached a different conclusion in Yakima with respect to in rem state taxes, holding that the state collection of property taxes on fee-patented land within reservations was still allowed under §6. 502 U. S., at 265. In short, Yakima sought only to interpret a relic of a statute in light of a distinguishable precedent; it resolved nothing about the law of sovereign immunity.

Acknowledging this, the Lundgrens now ask the Court to affirm on an alternative, common-law ground: that the Tribe cannot assert sovereign immunity because this suit relates to immovable property located in Washington State, purchased by the Tribe in the same manner as a private individual. Because this alternative argument did not emerge until late in this case, the Washington Supreme Court should address it in the first instance.

Vacated and Remanded

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

Concurring: ROBERTS, C. J., filed a concurring opinion, in which KENNEDY, J., joined.
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