Weekly Case Digests — June 25-June 29, 2018

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Cheryl Dalton v. Teva North America, et al.

Case No.: 17-1990

Officials: SYKES and BARRETT, Circuit Judges, and GRIESBACH, Chief District Judge

Focus: Statutory Interpretation – Expert Evidence

Cheryl Dalton appeals the summary judgment entered against her in this products liability case. The district court held that Dalton’s claims failed under Indiana law because she did not provide expert evidence on the issue of causation. Dalton contends that she did not have to provide expert evidence because the cause of her injuries would be readily apparent to a lay juror. Because the district court correctly applied Indiana law, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: John Crane, Inc. v. Shein Law Center, LTD et al.

Case No.: 17-1809; 17-1926; 17-1814

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

Focus: Personal Jurisdiction

John Crane, Inc., as a manufacturer of products containing asbestos, has been sued many times for injuries caused by exposure to asbestos. Now it claims some of those suits were part of a conspiracy to defraud the company. It filed lawsuits in the Northern District of Illinois against two law firms and their lawyers who brought some of those injury suits. Because the Northern District lacked personal jurisdiction over the defendants, we affirm the dismissal of the lawsuits.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Gary Solomon

Case No.: 17-1747

Officials: WOOD, Chief Judge, and ROVNER and HAMILTON, Circuit Judges

Focus: Sentencing Guidelines

Hard as it may try, Chicago has not yet managed to shake free from the scourge of public corruption. Gary Solomon, Thomas Vranas, and Barbara Byrd-Bennett have added another chapter to this inglorious history. As CEO of the Chicago Public Schools (CPS), Byrd-Bennett worked behind the scenes to assure that two companies headed by Solomon and Vranas would receive lucrative contracts. In exchange, Solomon and Vranas agreed that they would pay Byrd-Bennett a percentage of the revenue generated by those contracts when she came to work for them at the end of her tenure with CPS. After the fraudulent scheme was exposed, each participant pleaded guilty to committing wire fraud in violation of 18 U.S.C. §§ 1343 and 1346. Solomon was sentenced to 84 months’ imprisonment, 30 months more than Byrd-Bennett received. Solomon’s sentence also significantly exceeds Vranas’s, though that gap is irrelevant for this appeal.

Solomon wants a new sentencing hearing. He accuses the district court of incorporating the value of a contract unrelated to the criminal agreement into his advisory sentencing guidelines calculation. That alleged error resulted in an offense score that was four levels higher than Solomon believes it should have been. Additionally, Solomon believes that the disparity between Byrd-Bennett’s sentence and his sentence is unwarranted, making his sentence substantively unreasonable. Because the record supports the court’s decision to include the contested contract in the offense level calculation, and because dissimilar cooperation is a reasonable basis for a sentencing disparity, we affirm the district court’s sentence.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Alliance for Water Efficiency v. James Fryer

Case No.: 17-1326

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

Focus: Breach of Settlement

James Fryer and the Alliance for Water Efficiency set out to produce a study about drought. Unfortunately, the collaboration ran dry, and the Alliance sued Fryer under the Copyright Act, 17 U.S.C. §§ 101 et seq. The lawsuit proved to be far less troublesome than the ensuing settlement. While the parties were supposed to part ways and publish their own reports, they instead find themselves in the fourth year of protracted litigation.

The parties’ disputes center on their obligations under the settlement. Years ago the district court ordered Fryer to turn over certain data sets to the Alliance and refrain from acknowledging a number of organizations in his study. On appeal we reversed solely on the acknowledgment issue. Alliance for Water Efficiency v. Fryer, 808 F.3d 1153 (7th Cir. 2015). Fryer then returned to the district court and sought restitution for injuries caused by the court’s erroneous injunction. He also moved for attorney’s fees under § 505 of the Copyright Act for having prevailed in the first appeal. A magistrate judge denied both motions and Fryer appealed.

We affirm. Fryer does not present genuine claims for restitution; he seeks to relitigate unrelated claims for breach of the settlement. His request for attorney’s fees is also unsuccessful because he did not prevail on the Alliance’s copyright claim as § 505 requires. The parties compromised their positions, obtained some relief, and walked away from the underlying lawsuit. At no time has any court entered judgment on the Alliance’s copyright claim.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Highway J. Citizens Group, Waukesha County Environmental Action League, et al. v. United States Department of Transportation, et al.

Case No.: 17-1036

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

Focus: Statutory Interpretation – NEPA

Wisconsin proposes to renovate a 7.5-mile stretch of Highway 164 (formerly known as Highway J), a two-lane road in southern Washington County. It was built in the 1960s with 5 to 6.5 inches of asphalt, a pavement expected to last 22 years, and resurfaced in 2000 with another 2.5 to 3.5 inches, expected to extend the road’s life by 12 years. The new project entails repaving, reconstruction near hill crests where drivers cannot see approaching traffic, widening the lanes, making the shoulders flatter and two feet wider, improving sight lines, updating guardrails, adding rumble strips, and introducing turn or bypass lanes at some intersections. A 141-page environmental report prepared between 2013 and 2015 concluded that the renovation would not cause any significant environmental effects but would reduce the accident and injury rate. (Accidents are 63% more likely, per vehicle mile traveled, on this stretch than on Wisconsin’s other rural highways, and crashes that occur are 45% more likely to produce an injury.)

One local resident and two groups filed this suit, contending that more study is essential. After denying a motion for a preliminary injunction, see 2016 U.S. Dist. LEXIS 132388 (E.D. Wis. Sept. 27, 2016), the district judge read into the record an oral opinion granting summary judgment for the defendants. The judge concluded that the environmental report shows that the project fits the criteria for categorical exclusion from the need for a more comprehensive study. Plain tiffs have appealed. They want Wisconsin to abandon the project, contending that reducing the speed limit to 45 miles per hour would do enough to curtail accidents. But this suit concerns environmental effects, not the project’s wisdom. Plaintiffs offer two principal arguments: that the Agency’s failure to write a decision separate from the report shows that it has yet to give the project independent consideration, and that the report does not analyze cumulative effects of multiple highway-renovation projects.

The underlying statute (the National Environmental Policy Act or NEPA) calls for an environmental impact statement to accompany recommendations or reports on proposals for “major Federal actions significantly affecting the quality of the human environment”. 42 U.S.C. §4332(2)(C). Renovating 7.5 miles of an existing two-lane road does not stand out as a major cause of a significant effect. Regulation 1508.4 establishes a “categorical exclusion” of projects that are not “major”. The Administration believes that renovating existing roads generally does “not individually or cumulatively have a significant effect on the human environment”. The point of the years-long, 141-page study was not to question the validity of the regulations but to find out whether this renovation, in particular, needs a thorough evaluation because it would cause “[s]ignificant environmental impacts” (§771.117(b)(1)) or exceed “the constraints in paragraph (e) of this section” (§771.117(d)(13)).

As for the argument that the 141-page report didn’t analyze the cumulative effects of many different highway-repair projects: that’s true but irrelevant. The Administration must analyze cumulative effects when deciding whether the category (renovating highways) comes within the exclusion. That’s what the first sentence of §1508.4 says. But once a categorical decision has been made—and plaintiffs do not contest the Administration’s finding in §771.117 that road renovations cumulatively do not amount to major federal actions with significant environmental effects—the remaining question is whether a particular project flunks the constraints of §771.117(e) or otherwise has “[s]ignificant environmental impacts” (§771.117(b)(1)). That’s what this report investigated. As we’ve said already, judicial review is deferential, and we lack a compelling basis to upset the Administration’s finding that the categorical exclusion of §1508.4 and §771.117 applies to this project. See also Sierra Club v. United States Forest Service, 828 F.3d 402, 410–11 (6th Cir. 2016) (an agency need not analyze cumulative effects when the categorical exclusion itself considers them). Trying to include all cumulative effects of every project when analyzing any project is not feasible. And Kleppe v. Sierra Club, 427 U.S. 390, 409–15 (1976), holds that the exercise is not necessary. The Justices wrote that, although cumulative effects matter, the agency has discretion to consider when and how they are considered. It is not necessary to look at the Big Picture when evaluating every proposed project, the Court held. They said that about a huge project entailing the development of millions of coal-rich acres in the Powder River Basin; the point is no less true about a road project in Wisconsin that uses 38 acres of land and adds about one net acre of wetlands.

One final subject calls for brief mention. Section 771.117(b)(2) requires analysis when a project occasions “[s]ubstantial controversy on environmental grounds”. Plaintiffs say that their own opposition to the project, coupled with letters from several other organizations, adds up to “[s]ubstantial controversy on environmental grounds”. The Administration did not act arbitrarily, however, in deciding that the environmental report was itself an adequate response to that controversy. Section 771.117(b) does not require an environmental impact statement whenever someone opposes a project; it requires only “appropriate environmental studies”. The lengthy report is such a study.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Charlise Williams

Case No.: 17-2244

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

Focus: Sentencing Guidelines – Enhancement

Charlise Williams was charged in a five‐count indictment for bankruptcy fraud. After a week‐ long jury trial, she was found guilty on all counts and sentenced to a below‐Guidelines prison term of 46 months. On appeal, Williams argues that the district court erred by: (1) restricting her ability to cross‐examine witnesses in violation of the Confrontation Clause; and (2) applying certain Guidelines offense‐level enhancements based upon the total loss amount and number of victims. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: William Wheeler, et al. v. William Hronopoulos, et al.

Case No.: 17-2073

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

Focus: Brady Violation

This is a hornbook example of how to waive an argument on appeal. One day, a confidential informant told Officer William Hronopoulos that William Wheeler had some guns in his Chicago apartment. This informant had previously given information that led to successful search warrants, so when Officer Hronopoulos received the information about Wheeler, he (1) drove the informant by Wheeler’s apartment to confirm the address; (2) worked with the Cook County State’s Attorney to obtain a search warrant for the premises; and (3) brought the informant before a judge to testify about the information in the warrant applications. The judge issued two search warrants: one for each floor of the apartment. Later that night, the police executed the warrants and found guns, ammunition, and some heroin.   Wheeler faced several criminal charges relating to the contraband, but a jury acquitted him because the evidence did not prove beyond a reasonable doubt that the contra‐ band was his. So Wheeler and his wife—Joyce Thomas— turned around and filed a lawsuit against both the city and the officers involved in the arrest. Only two of their claims survived until the summary judgment stage: (1) a Fourth Amendment claim for an unlawful search and arrest pursuant to 42 U.S.C. § 1983; and (2) a state‐law claim for malicious prosecution.

Wheeler and Thomas brought this appeal, but they make an irrational argument: they now say that there is a disputed fact as to whether the confidential informant existed or gave the tip at all, so (1) both the seizure of the contraband and the arrest were the fruits of an illegal search; and (2) there was accordingly no probable cause for Wheeler’s prosecution. Although we review a district court’s decision to grant summary judgment de novo and summary judgment is not appropriate if there are any genuine disputes as to any material facts, Valenti v. Lawson, 889 F.3d 427, 428 (7th Cir. 2018) (citing Dunn v. Menard, Inc., 880 F.3d 899, 905 (7th Cir. 2018)) (further internal citations omitted), parties cannot conjure up brand new legal theories on appeal like this. Failing to bring an argument to the district court means that you waive that argument on appeal. United Cent. Bank v. Davenport Estate LLC, 815 F.3d 315, 318 (7th Cir. 2016) (internal citation omit‐ ted); Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir. 2012). And this case presents an egregious violation of that rule: not only did Wheeler and Thomas fail to argue below that the confidential informant did not exist, they tacitly admitted that the informant existed by arguing that his statements were hearsay.

Wheeler also argues that the district court erred by not addressing their supposed Brady claim: whether the officers’ failure to procure any fingerprint evidence—even though Wheeler never requested that evidence during his criminal proceedings—violated Wheeler’s due process rights. Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196–97, 10 L. Ed. 2d 215 (1963); see also Saunders‐El v. Rohde, 778 F.3d 556, 561–62 (7th Cir. 2015) (explaining the elements of a Brady claim). But Wheeler waived this argument too because the amended complaint did not allege a Brady claim. The amended com‐ plaint did mention a lack of fingerprint evidence, but only in the sense that it (somehow) showed a lack of probable cause for Wheeler’s arrest and prosecution. And even if the district court did miss a tangible Brady claim—which it did not— Wheeler and Thomas certainly never brought that to the court’s attention. So that argument is also waived. Poullard v. McDonald, 829 F.3d 844, 855 (7th Cir. 2016) (internal citation omitted).

Rules exist for a reason. Rules are especially important for practicing attorneys. And rules on how to bring an appeal are critical to the proper functioning of our judiciary: a case must be fully fleshed out at the district court level before an appellate court can accurately review that case. Wheeler and Thomas are no exception to that rule, so we must ratify the judgment of the district court.

Affirmed

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7^th Circuit Court of Appeals

Case Name: De’Angelo A. Cross, et al.  v. United States of America, et al.

Case No.: 17-2282; 17-2724

Officials: WOOD, Chief Judge, HAMILTON, Circuit Judge, and BUCKLO, District Judge.

Focus: Sentencing Guidelines

When compliance with the U.S. Sentencing Guidelines was still understood to be mandatory, district courts were required to impose an extended term of incarceration on so-called career criminals. This class of repeat felons was limited to those previously convicted twice for drug crimes or crimes of violence. The latter offenses included any felony “involv[ing] conduct that present[ed] a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2) (1992); U.S.S.G. § 4B1.2(a)(2) (2000). We will call that definition of a crime of violence the “residual clause” in this opinion.

The Supreme Court jettisoned the mandatory nature of the guidelines in 2005, in its decision in United States v. Booker, 543 U.S. 220. The Booker decision did not, however, immediately affect sentences imposed on defendants previously. Thus, De’Angelo Cross and Carl Davis continued to serve obligatory sentences as career offenders as required by the mandatory guidelines. Both Cross and Davis qualified for that designation because of the residual clause. Their present appeal challenged the constitutionality of that clause.

Two recent developments form the backdrop for our decision: first, the Supreme Court’s holding in Johnson v. United States, 135 S. Ct. 2551 (2015), that the identical language in the Armed Career Criminal Act, 18 U.S.C. § 924(e) (2012), is unconstitutionally vague; and second, the Court’s ruling in Beckles v. United States, 137 S. Ct. 886 (2017), that Johnson does not extend to the post-Booker advisory guidelines, including the career-offender guideline. We conclude that Beckles applies only to advisory guidelines, not to mandatory sentencing rules. Under Johnson, the guidelines residual clause is unconstitutionally vague insofar as it determined mandatory sentencing ranges for pre-Booker defendants. Cross and Davis are both entitled to be resentenced.

We hold that both Cross and Davis are entitled to relief from their career-offender classifications, based on the Supreme Court’s decision in Johnson. We thus REVERSE the district court and REMAND these cases with instructions to grant Cross’s and Davis’s section 2255 motions and to resentence them in accordance with this opinion.

Reversed and Remanded

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7^th Circuit Court of Appeals

Case Name: EEOC v. CVS Pharmacy, Inc.

Case No.: 17-1828

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

Focus: Fee Award

On the surface, this appeal is about a fee award entered against the Equal Employment Opportunity Commission (EEOC or Commission). But there is more than meets the eye. The award relates to a complaint that the Commission filed against CVS Pharmacy, Inc., alleging that CVS was using a severance agreement that chilled its employees’ exercise of their rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. After an investigation, the Commission filed suit in 2014 against CVS. It contended that CVS’s use of the severance agreement constituted a “pattern or practice of resistance” to the rights protected by Title VII, in violation of section 707(a) of the statute. 42 U.S.C. § 2000e-6(a).

The district court rejected this claim on summary judgment, and we affirmed in EEOC v. CVS Pharmacy, Inc., 809 F.3d 335 (7th Cir. 2015). After our decision, the district court awarded CVS $307,902.30 in attorneys’ fees. It reasoned that the EEOC should have realized even before filing the suit that EEOC regulations required initial conciliation before it could proceed with an enforcement action under section 707(a). But that was not at all clear at the time the EEOC acted. We conclude that the district court’s decision impermissibly rested on hindsight, and so we reverse.

Reversed and Remanded

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7^th Circuit Court of Appeals

Case Name: Warren Johnson, et al. v. Advocate Health and Hospitals Corporation

Case No.: 16-3848

Officials: MANION, ROVNER, and HAMILTON, Circuit Judges

Focus: Sufficiency of Evidence – Hostile Work Environment

Employees of Advocate Health and Hospitals Corporation (Advocate) claim that they were treated unfairly based on their race. The district court granted Advocate’s motion for summary judgment, finding that the plaintiffs failed to offer evidence necessary to support an element of their claim. We agree with the district court on all issues but the question of the hostile work environment, and remand to the district court for a determination of that claim.

In sum, we reverse the district court’s grant of summary judgment on the hostile work environment claim in regards to the racially derogatory language, and remand to the district court for a determination on the merits of that claim. The decision of the district court is affirmed in all other respects.

Reversed and Remanded in part. Affirmed in part.

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Christopher L. Roalson

Case No.: 2017AP116

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

Focus: Ineffective Assistance of Counsel

Christopher Roalson, pro se, appeals an order denying without a hearing his motion for postconviction relief, in which he alleged he received ineffective assistance from both his trial and appellate counsel. We conclude Roalson’s motion did not contain sufficient facts to warrant an evidentiary hearing on his assertion that the ineffective assistance of trial counsel claims he now raises were clearly stronger than the challenges his appellate counsel actually pursued on direct appeal. Accordingly, we conclude Roalson has not demonstrated a sufficient reason for failing to raise those claims on direct appeal, and he is therefore procedurally barred from raising them now.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. David Michael Murrell

Case No.: 2017AP289

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

Focus: Newly Discovered Evidence

David Michael Murrell was convicted in 1993 after a jury trial of five counts of first-degree reckless injury while armed with a dangerous weapon. The charges stemmed from a shooting at the Roxbury Nightclub at which multiple people were injured. Murrell appeals the circuit court’s order denying his third motion for postconviction relief. He contends that he is entitled to a new trial based on newly discovered evidence. In the alternative, he argues that he should be given a new trial in the interest of justice. We reject these arguments and affirm the circuit court’s order.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Anthony Iven Jones, aka Hashim Hasan

Case No.: 2017AP364

Officials: KESSLER, P.J.

Focus: Postconviction Motion Denied

Anthony Iven Jones, a/k/a Hashim Hasan, appeals from a judgment of conviction, following a jury trial, of one count of bail jumping. Jones also appeals the order denying his postconviction motion. We affirm.

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WI Court of Appeals – District III

Case Name: Daniel J. Olmsted

Case No.: 2017AP460

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

Focus: Claim for Interest Denied

Daniel Olmsted appeals a judgment denying his claim for interest pursuant to WIS. STAT. § 628.46 (2015-16).  We conclude Olmsted is not entitled to interest under § 628.46 and affirm.

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WI Court of Appeals – District III

Case Name: Town of Rib Mountain

Case No.: 2017AP2021

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

Focus: Statutory Interpretation

This appeal involves a dispute between the Town of Rib Mountain (Rib Mountain) and Marathon County (the County) regarding the County’s plan to implement a uniform addressing system in all unincorporated areas of the County. Rib Mountain argues the County exceeded its statutory authority because WIS. STAT. § 59.54(4) and (4m) (2015-16) permit the County to implement such a system only in unincorporated areas that also qualify as “rural.” We agree with Rib Mountain’s interpretation of § 59.54(4) and (4m). We therefore reverse the circuit court’s judgment denying Rib Mountain’s claims for declaratory and injunctive relief and remand for further proceedings on those claims.

Recommended for Publication

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Anthony Donte Dixon

Case No.: 2017AP2221-CR; 2017AP2222-CR

Officials: DUGAN, J.

Focus: Ineffective Assistance of Counsel

In this consolidated appeal, Anthony Donte Dixon appeals the judgments of conviction for knowingly violating a domestic abuse order and disorderly conduct in Milwaukee County case No. 16CF2789 arising out of events on June 16, 2016 (the “June 2016 case”), and the judgment of conviction in Milwaukee County case No. 16CF3737 for knowingly violating a domestic abuse order arising out of events on August 13, 2016 (the “August 2016 case”).  He also appeals the orders denying his motions for a new trial.

On appeal, Dixon contends that the trial court did not conduct a proper inquiry into his request for substitute counsel. He also contends that the trial court erred when it did not find that trial counsel was ineffective, based on counsel’s failure to investigate and call an alibi witness at trial. We disagree and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. F.E.L.

Case No.: 2017AP489

Officials: BRASH, J.

Focus: Termination of Parental Rights

F.E.L. appeals a circuit court order terminating his parental rights of A.A.W., as well as the denial of his postdispositional motion to withdraw his no contest plea. In that motion, and in this appeal, F.E.L. argues that he should be permitted to withdraw his no contest plea because the factual basis for the plea was insufficient. We affirm.

WI Court of Appeals – District II

Case Name: Michael R. Wilhelm v. McCoy Contractors Inc., et al.

Case No.: 2016AP1729

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

Focus: Judgement Award – Attorney’s Fees

This case arises from a dispute between Michael R. Wilhelm and his former employer, McCoy Contractors, Inc. (McCoy) over unpaid compensation. Wilhelm appeals from orders dismissing McCoy’s president, Daniel J. McCoy (Daniel), from the case and reducing a jury’s damages award against McCoy. McCoy, meanwhile, cross-appeals from an order awarding attorney fees to Wilhelm.

We conclude that the circuit court properly dismissed Daniel from the case and properly awarded attorney fees to Wilhelm. However, we also conclude that the court erred in reducing the jury’s damages award against McCoy, which affected the amount of attorney fees ordered.  Therefore, we affirm in part, reverse in part, and remand with directions to reinstate the jury’s damages award and increase the attorney fees award accordingly.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. James E. Gray

Case No.: 2017AP452-CR

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

Focus: Sufficiency of Evidence

James Gray appeals from a judgment convicting him of five counts of identity theft and an order denying his motion for postconviction relief. The charges stemmed from the unauthorized use of a credit card and a debit card. The State introduced surveillance videos from the various establishments where the cards were used showing a man matching Gray’s appearance wearing a beret-style hat and cane using the cards. A similar beret style hat was recovered from Gray when he was arrested, and a black cane was discovered at his workplace. The State also introduced a shirt and bifold wallet recovered from Gray’s residence. On appeal, Gray claims that the wallet and shirt were taken in violation of his Fourth Amendment rights and should therefore be excluded. He also takes issue with certain witness testimony, the sufficiency of the evidence, and the jury instructions. We reject Gray’s arguments and affirm the judgment and order.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Timothy L. Landry

Case No.: 2017AP1739-CR

Officials: HAGEDORN, J.

Focus: Court Error – Abuse of Discretion

This case concerns whether the circuit court erred when it ordered Timothy L. Landry to comply with the sex offender registry—in his case, a discretionary call for the circuit court after Landry pled no contest to two counts of fourth-degree sexual assault. Landry argues that the circuit court erroneously exercised its discretion because the findings required by WIS. STAT. § 973.048(1m)(a) to impose registration were not made and were not sufficiently explained. We conclude that the circuit court properly exercised its discretion; the requisite findings were established and explained.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. John H. Przybyla

Case No.: 2017AP773-CR

Officials: Sherman, Blanchard and Fitzpatrick, JJ.

Focus: Jury Instructions

John Przybyla appeals a judgment of conviction for operating a motor vehicle while intoxicated as a tenth offense. Przybyla also appeals a circuit court order denying his postconviction motion. Przybyla argues that he is entitled to resentencing due to an error in one of the jury instructions. Because the claimed error does not entitle Przybyla to the relief he requests, we affirm.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Golden Sands Diary LLC, v. Town of Saratoga, et al.

Case No.: 2018 WI 61

Focus: Building Permit Rule – Extension of Land

Wisconsin has long provided a vested right to build a structure upon the filing of a building permit application that strictly conforms to all applicable zoning regulations (the “Building Permit Rule”)——a doctrine we reaffirmed last term in McKee Family I, LLC v. City of Fitchburg, 2017 WI 34, 374 Wis. 2d 487, 893 N.W.2d 12. Golden Sands Dairy, LLC (“Golden Sands”), either owns outright (or is under contract to purchase) what collectively amounts to 6,388 acres in and around the Town of Saratoga (“Saratoga”) on which it seeks to operate a farm using the “farming full circle” model. Golden Sands obtained a building permit for seven farm structures. Its building permit application identified the building site as 100 acres and the total farm as 6,388 acres. Further, Golden Sands included a map with its original building permit application that identified the precise land it would use for its farm and the location of the seven structures.

After Golden Sands filed its building permit application, Saratoga enacted its zoning ordinance that sought to prohibit agricultural uses such as those proposed by Golden Sands. Golden Sands argues that the Building Permit Rule extends to all land specifically identified in a building permit application. Under its proposed modification of the Building Permit Rule, Golden Sands would have a vested right to use all of the Property for agricultural purposes. Saratoga disagrees, arguing that Golden Sands’ building permit is limited to vesting its right to build the seven structures identified in the building permit.

The issue in this case is one of first impression in Wisconsin: does the Building Permit Rule extend to land identified in the building permit application as part of the project upon which no actual construction was planned? The Wood County Circuit Court concluded that the Building Permit Rule does extend to all land identified in the building permit application, and consequently granted Golden Sands’ motion for summary judgment. The court of appeals, however, reversed, holding that the Building Permit Rule applies only to building structures, and not to use of land. Golden Sands Dairy, LLC v. Town of Saratoga, No. 2015AP1258, unpublished slip op. (Wis. Ct. App. April 13, 2017) (Golden Sands II).

We hold that the Building Permit Rule extends to all land specifically identified in a building permit application. Consequently, Golden Sands has a vested right to use all of the Property for agricultural purposes. Therefore, we reverse the decision of the court of appeals.

Reversed

Concur:

Dissent: ABRAHAMSON, J. joined by BRADLEY, A. W., J. dissent (Opinion filed).

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WI Supreme Court

Case Name: Richard Forshee, et al. v. Lee Neuschwander, et al.

Case No.: 2018 WI 62

Focus: Statutory Interpretation – Restrictive Covenant

Lee and Mary Jo Neuschwander purchased property on Hayward Lake in Hayward, Wisconsin. They renovated the large house and began renting it to vacationers on both short-term and long-term bases. Several neighboring property owners (the “Neighbors”) objected to the use of the property as a vacation rental. They brought suit in Sawyer County Circuit Court, claiming that a restrictive covenant that encumbers all lots in the subdivision of which Neuschwanders’ property is a part, precludes short-term rentals of property.

The Sawyer County Circuit Court held in favor of the Neighbors and enjoined Neuschwanders from further short-term rentals, except for the Birkebeiner weekend. The court of appeals reversed. Forshee v. Neuschwander, 2017 WI App 43, 377 Wis. 2d 162, 900 N.W.2d 100. The Neighbors petitioned for review, which we granted.

We review a single issue: Whether the short-term rental of the Neuschwanders’ property constitutes “commercial activity” under the restrictive covenant that encumbers their property. We conclude that the term, “commercial activity,” which is undefined in the covenant, is ambiguous. Therefore, we narrowly interpret it and conclude that it does not preclude either short-term or long-term rentals of Neuschwanders’ property. Accordingly, we affirm the decision of the court of appeals.

Affirmed

Concur: ABRAHAMSON, J. concurs (Opinion filed). KELLY, J. concurs (joining majority except to the extent it is inconsistent with this concurrence), joined by BRADLEY, R. G., J. (Opinion filed).

Dissent: BRADLEY, A. W., J. dissents (Opinion filed).

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WI Supreme Court

Case Name: Winebow, Inc. v. Capitol-Husting Co., Inc.

Case No.: 2018 WI 60

Focus: Statutory Interpretation – Wisconsin Fair Dealership Law

This case is before the court on a certified question from the United States Court of Appeals for the Seventh Circuit. Winebow, Inc. v. Capitol-Husting Co., Inc., 867 F.3d 862 (7th Cir. 2017); see Wis. Stat. § 821.01 (2015-16).  It certified the following question: “Does the definition of a dealership contained in Wis. Stat. § 135.02(3)(b) include wine grantor-dealer relationships?” Winebow, 867 F.3d at 871.

Our answer to this certified question will aid the Seventh Circuit in determining whether Winebow, Inc.’s (Winebow) attempt to end its business relationship with two wine distributors is governed by the unilateral termination limitations of the Wisconsin Fair Dealership Law (WFDL). See Wis. Stat. § 135.03. Winebow unilaterally terminated its relationship with Capitol-Husting Co., Inc. and L’Eft Bank Wine Co. Limited (the Distributors) after becoming dissatisfied. It argues that the action was permissible because the parties’ business relationship is not an “intoxicating liquor” dealership entitled to the protections of the WFDL. See §§ 135.02(3)(b), 135.066. On the other hand, the Distributors contend that a wine grant or dealer relationship is a “dealership” entitled to such protections and thus Winebow cannot unilaterally terminate its relationship with the Distributors absent a showing of good cause.

We conclude that a wine grantor-dealer relationship is not included within the definition of a dealership in Wis. Stat. § 135.02(3)(b). Section 135.066(2) provides the operative definition of “intoxicating liquor” for purposes of ch. 135, and such definition explicitly excludes wine. Accordingly, we answer the certified question in the negative.

Negative and Remanded

Concur:

Dissent: BRADLEY, R. G., J. joined by ABRAHAMSON, J. and KELLY, J. dissent (Opinion filed).
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WI Supreme Court

Case Name: Voters with Facts, et al. v. City of Eau Claire, et al.

Case No.: 2018 WI 60

Focus: Declaratory Judgment – Certiorari Review Appropriate

This case arises out of the approval of a redevelopment project in the City of Eau Claire (the “City”), which relied in part on funds derived from two tax incremental districts (“TIDs”): TID 8 and TID 10. Voters with Facts, et al. (“Plaintiffs”) challenged the legality of the City’s actions with regard to these TIDs. We review here a published decision of the court of appeals, Voters with Facts v. City of Eau Claire, 2017 WI App 35, 376 Wis. 2d 479, 899 N.W.2d 706 [hereinafter Voters], affirming the Eau Claire County circuit court’s dismissal of Plaintiffs’ complaint as to declaratory judgment, but reversing and remanding as to certiorari review.

On review, we consider two issues. First, we consider whether dismissal of Plaintiffs’ declaratory judgment claims was proper. We conclude that it was, because Plaintiffs have failed to state claims upon which relief can be granted: the first and second counts fail because the City Common Council’s findings of blight and the JRB’s “but for” assertions are legislative determinations that do not present justiciable issues of fact or law; the third count fails because it does not allege facts which plausibly establish that the City’s cash grant for TID 10 was used to reimburse the developer’s costs associated with demolishing historic buildings; and the fourth count fails because it does not allege facts which plausibly establish that cash grants are intended or used to pay owner-developers’ property taxes.

Second, we consider whether certiorari review is appropriate. We conclude that it is, because certiorari review is the appropriate mechanism for a court to test the validity of a legislative determination. The record before us, however, does not contain a municipal record sufficient to enable our review. Accordingly, we remand to the circuit court for certiorari review of Plaintiffs’ first and second claims. Thus, we affirm the decision of the court of appeals on other grounds.

Affirmed

Concur:

Dissent: R.G. BRADLEY, J., and KELLY, J., dissent (opinion filed).

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WI Supreme Court

Case Name: State of Wisconsin v. Steven T. Delap

Case No.: 2018 WI 64

Focus: 4^th Amendment Violation – Seizure

This is a review of an unpublished decision of the court of appeals affirming a judgment of conviction of the Circuit Court for Dodge County, Steven G. Bauer, Judge. Steven Delap, the defendant, was convicted of obstructing an officer in violation of Wis. Stat. § 946.41(1) and possession of drug paraphernalia in violation of Wis. Stat. § 961.573(1), both as a repeater.

The defendant claims that the arrest and subsequent search violated his rights under the Fourth Amendment of the United States Constitution and Article I, Section 11 of the Wisconsin Constitution. The circuit court denied the defendant’s motion to suppress the evidence. The circuit court concluded that the hot pursuit doctrine permitted the law enforcement officers in the instant case to follow the defendant into his home to effectuate his arrest. Relying on the hot pursuit doctrine, the court of appeals affirmed the circuit court’s denial of the defendant’s motion to suppress evidence.

We affirm the decision of the court of appeals, but on grounds different than those relied upon by the circuit court and court of appeals. We conclude that the instant case is governed by Payton v. New York, 445 U.S. 573 (1980), and we need not address the applicability of the hot pursuit doctrine. In the instant case, law enforcement officers had two valid arrest warrants based on probable cause for the arrest of the defendant. The facts and circumstances known to the officers at the time they located the defendant were sufficient to form probable cause to believe that the individual they saw entering the residence was the defendant and that the defendant lived in the residence into which he fled.

Thus, applying the teachings of Payton, we conclude that the law enforcement officers in the instant case lawfully entered the defendant’s residence to execute the two valid warrants for the defendant’s arrest and lawfully seized evidence discovered in the search incident to the defendant’s arrest. Accordingly, we affirm the decision of the court of appeals.

Affirmed

Concur: GABLEMAN, J., concurs, joined by KELLY, J. (opinion filed).
Dissent:

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