Weekly Case Digests — July 2-July 6, 2018

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Village of Barrington, Illinois v. Surface Transportation Board, et al.

Case No.: 17-3586

Officials: FLAUM and RIPPLE, Circuit Judges, and GETTLEMAN, District Judge

Focus: Sufficiency of Evidence – Acquisition

In 2007, Canadian National Railway Company (“CN”) sought approval from the Surface Transportation Board (the “Board”) of its acquisition of control of the Elgin, Joliet, and Eastern Railway Company (“EJ & E”) rail line near Chicago. As part of its review, the Board considered the impact of the acquisition on 112 railroad crossings throughout the Chicagoland area, including the intersection at U.S. Highway 14 (“U.S. 14”) in the Village of Barrington (the “Village”). Crossings projected to be “substantially affected” by the acquisition were eligible for mitigation measures imposed by the Board as a condition to its approval, up to and including grade separation between the roadway and rail line. The Board approved CN’s acquisition in 2008, but determined that U.S. 14 would neither be substantially affected nor warrant a grade separation. The Village unsuccessfully petitioned the Board to reopen its decision in 2011 and 2014. It failed for a third time in 2017, and now appeals the Board’s most recent denial. Because the Village does not present new evidence or substantially changed circumstances that mandate a different result, we deny the petition for review.

Petition Denied
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7^th Circuit Court of Appeals

Case Name: Estate of Linda Faye Jones, et al. v. Children’s Hospital, et al.

Case No.: 17-3524

Officials: BAUER, BARRETT, and ST. EVE, Circuit Judges.

Focus: Estate – Pension

Three days into retirement and three days before the start of her pension, Linda Faye Jones died. The Administrative Committee, which oversees the Children’s Hospital and Health System, Inc. Pension Plan, denied the pension to Linda’s daughter and beneficiary, Kishunda Jones. The Committee reasoned that only spouses are entitled to benefits under the Plan when a participant dies before the start of her pension. Because the Administrative Committee’s decision was not arbitrary or capricious, we affirm.

Affirmed
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7^th Circuit Court of Appeals

Case Name: Paul Chaim Shlomo Fischer, et al. v. Magyar Allamvasutak Zrt.

Case No.: 17-3487

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

Focus: Standing to Sue – Subject-matter Jurisdiction

Paul Chaim Shlomo Fischer appeals an order denying a motion to reopen an action he and other Hungarian Jews brought against an instrumentality of the Hungarian government, the national railway, under an exception to the Foreign Sovereign Immunities Act for harms suffered during the Holocaust. Although Fischer seeks our review of the district court’s order, he is not the individual the district court treated as filing the motion leading to the order. The district court read the motion as coming from Iren Gittel Kellner, a putative member of the class Fischer sought to have certified in the action previously ordered dismissed without prejudice to permit an exhaustion of any remedies available in Hungary. Indeed, the district court denied the motion on this precise and limited basis—Kellner’s lack of “standing” to seek to reopen an action in which a class never was certified. In these circumstances, this court, too, faces an insurmountable barrier: we lack authority to consider an appeal from a party not subject to the order sought to be challenged.

Affirmed
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7^th Circuit Court of Appeals

Case Name: John Mchanan, et al. v. Deutsche Bank AG, et al.

Case No.: 17-2988

Officials: RIPPLE, MANION, and KANNE, Circuit Judges

Focus: Tax Shelter – Statute of Limitations

In 2001, John McMahan and his wholly owned corporation, Northwestern Nasal and Sinus Associates, S.C., participated in a tax shelter known as “Son of BOSS.” The shelter “is a variation of a slightly older alleged tax shelter known as BOSS, an acronym for ‘bond and options sales strategy.’” Kligfeld Holdings v. Comm’r, 128 T.C. 192, 194 (2007). It “was aggressively marketed by law and accounting firms in the late 1990s and early 2000s” and involves engaging in a series of transactions to create an “artificial loss [that] may offset actual—and otherwise taxable— gains, thereby sheltering them from Uncle Sam.” Am. Boat Co., LLC v. United States, 583 F.3d 471, 474 (7th Cir. 2009). Unfortunately for McMahan, the Internal Revenue Service (IRS) considers the use of this shelter abusive. See I.R.S. Ann. 2004‐ 21 I.R.B. 964 (“The Service has determined that Son of Boss transactions are abusive and were designed, marketed, and undertaken solely to create tax benefits unintended by any reasonable interpretation of the tax laws.”). The IRS initiated an audit of McMahan’s 2001 tax return in 2005. In 2010, the IRS notified McMahan it was increasing his taxable income for 2001 by approximately $2 million.

In 2012, McMahan filed this lawsuit in Illinois state court against Robert Goldstein (his accountant), American Express Tax and Business Services (Amex) (the firm that prepared his tax return), and Deutsche Bank AG and Deutsche Bank Securities Inc. (collectively, Deutsche Bank) (the entities that facilitated the transactions necessary to perpetrate the shelter). McMahan claims these defendants harmed him by convincing him to participate in the shelter. Deutsche Bank removed the case to the district court, citing the diversity jurisdiction statute, 28 U.S.C. § 1332. After a series of procedural steps described below, the district court dismissed McMahan’s claims against Goldstein and Amex for lack of prosecution and granted summary judgment to Deutsche Bank on statute of limitations grounds. McMahan appeals. We affirm.

Affirmed
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7th Circuit Court of Appeals

Case Name: United States of America v. Todd A. Dyer

Case No.: 17-1580; 17-1776

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

Focus: Plea Withdrawal

Todd Dyer, the defendant in this consolidated appeal, challenges the denials of his motions to withdraw his guilty pleas. Under a written agreement, Dyer pled guilty to wire fraud, 18 U.S.C. § 1343, and unlawful financial transactions, 18 U.S.C. § 1957, for his conduct in two separate fraud schemes. He now claims that the plea colloquy was insufficient, in part because the district court did not adequately explore the potential effects of his bipolar disorder. We affirm the judgments.

Affirmed
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7^th Circuit Court of Appeals

Case Name: Thaddeus Jones, et al. v. Michelle Markiewicz-Qualkinbush, et al.

Case No.: 17-1227

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

Focus: 1^st Amendment Violation – Rule of Three

Thaddeus Jones, an alderman in Calumet City, Illinois, wants to be mayor. One of his supporters, Stevon Grant (plus others who formed a committee), tried to prevent the incumbent, Michelle Markiewicz-Qualkinbush, mayor since 2003, from running for reelection in spring 2017. The means: a referendum that would have set a three-term limit on the City’s mayor. Grant gathered enough signatures to put that referendum on the ballot in November 2016. But it did not appear on that ballot, because the City itself proposed three referenda for that election, and the City’s proposals were certified before Grant’s. Illinois law limits to three the number of referenda on any ballot. See 10 ILCS 5/28-1. The parties call this the “Rule of Three.” Illinois law creates a possibility that displaced referenda will roll over to the next election. 10 ILCS 5/28-5. Grant did not ask that his proposal do so.

According to Jones (as we now call the three federal plaintiffs collectively), the Rule of Three violates the First Amendment (applied to the states by the Fourteenth Amendment) because it disables him from asking voters to support his proposal. The Rule of Three selects the first three proposals to be certified, and a municipality can reach that goal with as li\le as 48 hours’ notice, see 5 ILCS 120/2.02(a), while a private citizen’s proposal depends on acquiring enough signatures. 10 ILCS 5/28-7. This means that a city observing a signature-gathering campaign in progress can get its own proposals on the ballot first—even if the real goal of those proposals is just to prevent the private ones from appearing. Jones contends that this is what happened in 2016 and maintains that any system barring private proposals from the ballot—whether directly or by allowing a unit of government to fill the available slots—violates the First Amendment.

Everything that Engquist and Ceballos said about using constitutional law to regulate personnel management in a public workforce goes double about using class-of-one litigation to regulate political infighting. Any effort by the judiciary to stop one politician from proposing and advocating steps that injure another politician would do more to violate the First Amendment (the right to advocate one’s view of good policy is the core of free speech) than to vindicate the Equal Protection Clause. Laws with general effects must have the support of a rational basis, but as we observed earlier the Rule of Three has such a basis, and Jones does not contest the validity of term limits. A class-of-one claim cannot be used to attack political practices that are valid as a general matter but bear especially hard on one politician. Cf. Washington v. Davis, 426 U.S. 229 (1976) (only disparate treatment can violate the Equal Protection Clause; disparate impact does not); Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979) (same). The price of political dirty tricks must be collected at the ballot box rather than the courthouse.

Affirmed
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7^th Circuit Court of Appeals

Case Name: Part-time Faculty Association at Columbia College Chicago v. Columbia College Chicago

Case No.: 17-3492

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

Focus: NLRB Decision – Employee Unions

This case involves a labor dispute between Columbia College Chicago (“CCC” or “the College”) and one of its employee unions, the Part-Time Faculty Association at Columbia College Chicago (“PFAC”), over the representation of full-time staff members who also teach part-time. A Regional Director (“the Director”) of the National Labor Relations Board (“NLRB” or “the Board”) ruled that such employees were included in PFAC’s bargaining unit for the purposes of their part-time faculty duties. An independent arbitrator disagreed. After PFAC filed a federal suit to confirm the arbitration, the district court gave precedence to the Director’s decision and vacated the award. We affirm.

Affirmed
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7^th Circuit Court of Appeals

Case Name: J. Donald Henson, Sr. v. Department of Health and Human Services, et al.

Case No.: 17-1750

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

Focus: Statutory Interpretation – FOIA

Plaintiff J. Donald Henson, Sr., appeals from the district court’s grant of summary judgment for defendants on his claims under the Freedom of Information Act, 5 U.S.C. § 552. We affirm.

Affirmed
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7^th Circuit Court of Appeals

Case Name: Eli Lilly and Company, et al. v. Arla Foods, Inc., et al.

Case No.: 17-2252

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

Focus: Sufficiency of Evidence

In 2017 Arla Foods, a global dairy conglomerate based in Denmark, launched a $30 million advertising campaign aimed at expanding its cheese sales in the United States. Branded “Live Unprocessed,” the campaign covers all major media platforms and targets the growing market for all-natural foods. To that end, the ads assure consumers that Arla cheese contains no “weird stuff” or “ingredients that you can’t pronounce”—in particular, no milk from cows treated with recombinant bovine somatotropin (“rbST”), an artificial growth hormone. The flagship ad in the campaign features a vivid rhetorical flourish implying that milk from rbST-treated cows is unwholesome. Narrated by a seven-year-old girl, the ad depicts rbST as (among other things) a cartoon monster with razor sharp horns and electric fur.

Enter Eli Lilly & Company and its subsidiary, Elanco US, Inc. (collectively, “Elanco”). Elanco makes the only FDA approved rbST supplement and markets it under the brand name Posilac®. Soon after the Arla ad campaign debuted, Elanco filed suit alleging that the ads contain false and misleading statements in violation of the Lanham Act. Elanco simultaneously moved for a preliminary injunction and supported the motion with copies of the ads, scientific literature documenting rbST’s safety, and evidence that a major cheese producer had decreased its demand for rbST in response to the ad campaign. The district judge concluded that Elanco has a reasonable likelihood of success on the merits and issued the requested injunction. The judge later modified his order to cure technical deficiencies.

Arla appeals, arguing that Elanco (1) failed to produce consumer surveys or other reliable evidence of actual consumer confusion; and (2) did not submit adequate evidence linking the ad campaign to decreased demand for its rbST. Arla also challenges the modified injunction as vague and overbroad and lacking adequate factual findings. We affirm. Consumer surveys or other “hard” evidence of actual consumer confusion are unnecessary at the preliminary-injunction stage. And the evidence of causation is sufficient at this stage of the proceedings: the harm is easily traced because Elanco manufactures the only FDA-approved rbST supplement on the market. Finally, the modified injunction is sufficiently definite and adequately supported by the record and the judge’s findings.

Affirmed
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7^th Circuit Court of Appeals

Case Name: Wendell Weaver v. Walter Nicholson

Case No.: 16-2400

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

Focus: Ineffective Assistance of Counsel

Wendell Weaver was convicted of first degree murder and sentenced to forty years’ imprisonment. In a petition for a writ of habeas corpus, he alleges that his constitutional rights were violated by the trial court’s disqualification of his counsel of choice, the ineffective assistance of his replacement counsel, the state’s use of certain testimony at trial, and the trial court’s admission of “other crimes” evidence. The district court denied the petition. We affirm.

Affirmed
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7^th Circuit Court of Appeals

Case Name: Kimberly Flanagan v. Office of the Chief Judge of the Circuit Court of Cook County, Illinois, et al.

Case No.: 16-1927

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

Focus: Sufficiency of Evidence

Kimberly Flanagan says that two coworkers threatened her life because she previously had sued their shared employer—the Cook County Adult Probation Department—for discrimination and retaliation. She brought the present action against the Department, asserting retaliation under Title VII, 42 U.S.C. § 2000e-3(a), based on the hostile work environment engendered by that supposed murder attempt. The district court entered summary judgment for the defendants. Because the threat to Flanagan was too oblique for a jury to conclude that she was subjected to severe or pervasive harassment, we affirm.

On appeal Flanagan argues that Vaughan’s and Loizon’s statements are not hearsay and that a jury could find that her coworkers tried to kill her in retaliation for litigating against their employer. As evidence of a murder plot and attempt, she points to Anderson’s account that Vaughan instructed Loizon to seclude her and that Loizon agreed to “do it.” Flanagan also highlights Loizon’s command outside of the facility to “do it to her when she gets out the door.”

Affirmed
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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Cesario Reyes

Case No.: 2016AP2400-CR

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

Focus: Postconviction Motion Denied

Cesario Reyes appeals from a judgment, entered upon a jury’s verdict, convicting him on one count of possession with intent to deliver more than forty grams of cocaine and one count of maintaining a drug trafficking place, both as party to a crime. Reyes also appeals from an order that denied his postconviction motion. Reyes claims the trial court erred when it allowed the State to amend the information, failed to find the State’s expert was appropriately qualified, and erroneously exercised its sentencing discretion.  We reject these arguments and affirm the judgment and order.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Gitan Mbugua

Case No.: 2017AP967-CR

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

Focus: Ineffective Assistance of Counsel – Plea & Sentencing

Gitan Mbugua appeals a judgment of conviction and an order denying his postconviction motion.  He argues that his attorneys rendered ineffective assistance of counsel and he seeks an order vacating his conviction and an order requiring the State to reinstate option two of its January 2016 plea offer. The first attorney, he argues, was deficient for providing him with incorrect information about option two of the January 2016 offer, and the incorrect information caused him to turn the offer down. He argues that his second attorney was deficient in not seeking a reoffer of that option from the State. He says that deficiency caused him to plead guilty to the State’s May 2016 offer, which prejudiced him by exposing him to more incarceration time than option two of the January 2016 plea offer. Therefore, under Strickland v. Washington, 466 U.S. 668 (1984), he argues that he is entitled to have his conviction vacated and to have a reoffer of option two of the State’s January 2016 plea offer.

The State responds that neither attorney was deficient, but that even if they were, Mbugua suffered no prejudice under Lafler v. Cooper, 566 U.S. 156, 164 (2012), because he failed to establish that: (1) he would have pled guilty to the false imprisonment charge in option two of the January 2016 plea offer; (2) the trial court would have accepted the plea; and, (3) the terms of option two of the January 2016 plea offer were less severe than the conviction or sentence he received. See id. In fact, the State argues, his actual conviction and sentence were no greater than the terms he faced on option two of the January 2016 plea offer. We agree with the State and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Ricky A. Lobley

Case No.: 2017AP1251-CR

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

Focus: Newly Discovered Evidence

Ricky A. Lobley appeals from the judgment of conviction finding him guilty, following a jury trial, of one count of armed robbery, one count of burglary, and three counts of false imprisonment, all as party to a crime (PTAC). He also appeals the orders denying his postconviction motions for a new trial.

On appeal, Lobley argues that (1) newly discovered evidence represented by the affidavits of a codefendant and an acquaintance requires a new trial, (2) the prosecutor improperly vouched for a witness’s credibility during closing arguments, and (3) trial counsel was ineffective for failing to object to hearsay evidence and the prosecutor’s comment. For the following reasons, we affirm. These background facts provide context for the issues raised on appeal. Additional facts are included in our discussion.

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WI Court of Appeals – District III

Case Name: Newcap, Inc. Department of Health Services

Case No.: 2017AP1432

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

Focus: Statutory of Interpretation – Medical Assistance Program Payments

This appeal involves efforts made by the Wisconsin Department of Health Services (DHS) to recoup payments it made to Newcap, Inc., a family planning clinic. DHS claims it had legal authority to recoup the amounts in question, pursuant to WIS. STAT. § 49.45(3)(f) (2015-16), because Newcap failed to “maintain records as required by [DHS] for verification of provider claims for reimbursement.” See § 49.45(3)(f)1. In response, Newcap contends it was not actually required to maintain the specific records at issue in this case. Alternatively, Newcap argues its failure to maintain those records provided no basis for recoupment because other records—which were in Newcap’s possession either at the time of DHS’s audit or at the time of the subsequent hearing—showed that Newcap actually provided the services for which it was paid by DHS.

We conclude WIS. STAT. § 49.45(3)(f) gives DHS authority to recoup payments made to a Medicaid provider when that provider has failed to maintain the records required by DHS, regardless of whether the provider possesses other records that show the provider actually rendered the services in question. We further conclude the provider has an obligation to make the required records available to DHS at the time of DHS’s audit, and records subsequently submitted during an administrative hearing are insufficient to defeat DHS’s recoupment claim.

Nevertheless, we affirm the circuit court’s order, which reversed DHS’s decision requiring Newcap to repay DHS $185,074.80. DHS concluded it was entitled to recover that amount based on two deficiencies in Newcap’s recordkeeping: (1) Newcap’s failure to retain invoices documenting its purchase of prescription drugs that it subsequently dispensed to Medicaid patients; and (2) Newcap’s failure to include correct National Drug Codes (NDCs) on reimbursement claims it submitted to Medicaid. We conclude Newcap was not required to retain the invoices in question, and its failure to do so therefore did not give DHS authority to recoup payments under WIS. STAT. § 49.45(3)(f). We further conclude DHS lacked legal authority to recoup payments based on Newcap’s submission of claims with missing or invalid NDCs. We therefore affirm.

Recommended for Publication

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Dylan James Swanson

Case No.: 2017AP1439-CR

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

Focus: Due Process Violation

Dylan Swanson appeals a judgment of conviction for three counts of burglary as party to the crime and an order denying his postconviction motion. Swanson argues he was denied his due process right to a fair trial because of prosecutorial misconduct. The alleged misconduct took two forms: (1) the prosecutor “overcharging” him with a total of nineteen burglary offenses, sixteen of which were dismissed at the close of the State’s case based on a lack of evidence; and (2) certain comments the prosecutor made during the State’s closing argument. Swanson also argues his sentences for the three burglary convictions were based on an improper factor, namely, the facts underlying the offenses for which he was acquitted.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. John Patrick Wright

Case No.: 2017AP2006-CR

Officials: KESSLER, P.J.

Focus: Motion to Suppress Evidence

The State of Wisconsin appeals an order of the circuit court granting John Patrick Wright’s motion to suppress evidence. We affirm.

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WI Court of Appeals – District II

Case Name: Ann Cattau, et al. v. National Insurance Services of Wisconsin, Inc. et al.

Case No.: 2016AP493

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

Focus: Breach of Fiduciary Duty – Retirement Plan

This case is a smaller piece of a larger lawsuit by former teachers and administrators from the Neenah School District (Plaintiffs) who claim damages resulting from the federal tax noncompliance of a retirement plan. The Plaintiffs sued several entities, including most prominently the School District itself. The issue in this appeal concerns allegations against two entities— MidAmerica Administrative & Retirement Solutions, Inc. (MidAmerica) and National Insurance Services of Wisconsin, Inc. (NIS)—who, according to the complaint, assisted in the administration and delivery of the offending retirement plan. The Plaintiffs’ claims against these two entities were for negligence, breach of fiduciary duty, and both negligent and strict responsibility misrepresentation. MidAmerica and NIS brought a motion to dismiss all claims on the pleadings, a motion the circuit court granted. The Plaintiffs appeal that decision along with the circuit court’s refusal to grant leave to amend the complaint to remedy any pleading deficiencies. We affirm.

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WI Court of Appeals – District II

Case Name: Gus Wirth, Jr. v. Martha Garcia, et al.

Case No.: 2017AP870

Officials: REILLY, P.J.

Focus: Eviction – Sufficiency of Evidence

Martha Garcia appeals from a $47,995.40 eviction judgment entered following a bench trial. Garcia entered into a five-year commercial lease with Gus Wirth, Jr., in 2013. Garcia opened a restaurant in the leasehold property. Wirth and Garcia also entered into a side deal in which Garcia paid approximately $35,000 to purchase kitchen equipment abandoned by the previous tenant. Garcia fell behind in lease and maintenance payments and Wirth sued for eviction and back rent in 2017. Garcia counterclaimed for unjust enrichment, claiming that she never received the kitchen equipment.

A court trial was held on April 21, 2017. Garcia and Wirth both provided testimony and evidence to the court. The court found the testimony of Wirth to be credible and Garcia’s testimony to be not credible. We affirm; the trial court’s decision was based upon credibility determinations, and Garcia has failed to show that the court clearly erred in any of its factual findings.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. James L. Lumpkin

Case No.: 2016AP2145-CR

Officials: Sherman, Blanchard and Kloppenburg, JJ.

Focus: Ineffective Assistance of Counsel

James Lumpkin appeals a judgment of conviction and an order denying his postconviction motion. We reverse on one count due to ineffective assistance of counsel, but we affirm as to other counts. Lumpkin was convicted after a jury trial of possession of cocaine and heroin, both with intent to deliver; delivery of heroin; and possession of THC. He filed a postconviction motion that the circuit court denied after an evidentiary hearing.

Lumpkin’s arguments are all based on a theory of ineffective assistance of counsel. To establish ineffective assistance of counsel a defendant must show that counsel’s performance was deficient and that such performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To demonstrate prejudice, the defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id. at 694. A reasonable probability is one sufficient to undermine confidence in the outcome. Id.

We affirm the circuit court’s findings of fact unless they are clearly erroneous, but the determination of deficient performance and prejudice are questions of law that we review without deference to the trial court. State v. Pitsch, 124 Wis. 2d 628, 633-34, 369 N.W.2d 711 (1985).

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Jessica M. Randall

Case No.: 2017AP1518-CR

Officials: KLOPPENBURG, J.

Focus: Suppression of Evidence – Blood Test

The State of Wisconsin appeals the circuit court’s decision and order granting Jessica Randall’s motion to suppress the results of a blood test. The circuit court granted Randall’s motion to suppress because: under the applicable law, Randall had the right to withdraw her consent to the blood test after her blood was taken but before it was tested, so long as she clearly and unequivocally withdrew her consent; Randall did clearly and unequivocally withdraw her consent; and, therefore, the State’s subsequent blood testing was without a lawful basis and its use as evidence would violate Randall’s Fourth Amendment rights.

On appeal, the State does not dispute that Randall’s attempt to withdraw her consent was clear and unequivocal. Rather, the State argues that Randall no longer had the right to withdraw her consent and that Randall’s withdrawal attempt came too late because, as a matter of law, an individual can only withdraw his or her consent to a blood test before the blood is taken, not after. Based on the applicable law, I disagree. The circuit court properly suppressed the blood test results because: (1) the taking and testing of the blood, together, comprise a single search to which constitutional protections attach, see State v. VanLaarhoven, 2001 WI App 275, ¶16, 248 Wis. 2d 881, 637 N.W.2d 411; and (2) the search had not yet been completed when Randall withdrew her consent before the blood was tested and, therefore, Randall retained her right to withdraw her consent to continuation of that search, see State v. Wantland, 2014 WI 58, ¶33-34, 355 Wis. 2d 135, 848 N.W.2d 810. Accordingly, I affirm the decision of the circuit court.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Daniel J. Mick

Case No.: 2017AP1642-CR

Officials: Sherman, Kloppenburg and Fitzpatrick, JJ.

Focus: Abuse of Discretion – Expert Testimony

A jury found Daniel Mick guilty of one count of first-degree sexual assault of a child and two counts of causing a child under thirteen to view sexual activity. Mick argues that the circuit court erred in granting the State’s pretrial motion in limine to exclude Mick’s expert witness from testifying at trial, for two reasons: (1) the exclusion of Mick’s expert witness was an erroneous exercise of discretion; and (2) the exclusion of Mick’s expert witness violated his constitutional right to present a defense. Mick also argues that he is entitled to a new trial in the interest of justice under WIS. STAT. § 752.35 (2015-16) because the real controversy was not fully tried.

We conclude that the circuit court did not erroneously exercise its discretion in granting the State’s motion in limine to exclude Mick’s expert witness, and that the exclusion did not violate Mick’s constitutional right to present a defense. Further, we conclude that Mick fails to show that he is entitled to a new trial in the interest of justice. Accordingly, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Chris Holland

Case No.: 2017AP1673-CR; 2017AP1674-CR

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

Focus: Consolidated Appeal

Chris Holland appeals two judgments of conviction that were joined for trial and consolidated for appeal. In Milwaukee County Case No. 2013CF1305, Holland was convicted of burglary and aggravated battery. In Milwaukee County Case No. 2013CF1838, Holland was convicted of robbery with use of force. Holland argues that the circuit court erred in joining these two cases for trial. We reject Holland’s arguments and affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Scott H. Wenger

Case No.: 2017AP2305-CR

Officials: LUNDSTEN, P.J.

Focus: Sufficiency of Evidence

Scott Wenger appeals a circuit court judgment convicting him of resisting an officer. Wenger argues that the evidence was insufficient to find guilt on this criminal charge. Wenger also seeks dismissal of the charge because he “did not forcibly resist a peaceful arrest.” For the reasons that follow, I affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Mark G. McCaskill

Case No.: 2017AP2443-CR

Officials: SHERMAN, J.

Focus: Newly Discovered Evidence

McCaskill appeals a circuit court order denying his postconviction motion for a new trial based on newly discovered evidence. For the reasons discussed below, I affirm.

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WI Supreme Court Digests

WI Supreme Court

Case Name: State of Wisconsin v. Anthony R. Pico

Case No.: 2018 WI 66

Focus: Ineffective Assistance of Counsel

A jury convicted Anthony R. Pico of sexually assaulting a young girl. Mr. Pico believes there is a reasonable probability that, absent his trial counsel’s alleged constitutional ineffectiveness, this conviction would not have occurred. The circuit court agreed, and so set aside his conviction. The court of appeals did not agree, and so reinstated the conviction. Mr. Pico asked us to review his case because he believes the court of appeals did not properly defer to the circuit court’s findings of fact when conducting the ineffective assistance of counsel analysis required by Strickland v. Washington, 466 U.S. 668 (1984). The State, on the other hand, believes the court of appeals decided the matter correctly and that it was the circuit court that erred when it allowed an expert to testify about the reasonableness of defense counsel’s representation. Finally, Mr. Pico argues that if we agree with the State, then we should send the case back to the circuit court because his sentence was improperly enhanced based on his continued assertion of innocence during the sentencing phase of this matter.

These arguments call on us to review the following three issues. First, whether the court of appeals improperly substituted the circuit court’s findings of fact with its own when it assessed the sufficiency of trial counsel’s performance. Second, whether an expert witness may testify about the reasonableness of trial counsel’s performance. And third, whether the circuit court improperly relied on Mr. Pico’s lack of remorse when it fashioned his sentence. With respect to the first issue, we conclude that the court of appeals conducted the Strickland analysis properly and that Mr. Pico’s trial counsel performed as required by the constitution. As to the second, we hold that expert testimony at a Machner hearing regarding the reasonableness of trial counsel’s performance is not admissible. And finally, we hold that the circuit court did not err when it imposed sentence on Mr. Pico.

Affirmed

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

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

Case Name: State of Wisconsin v. Michael L. Cox

Case No.: 2018 WI 67

Focus: Statutory Interpretation

Upon conviction of a felony, our statutes provide for imposition of a $250 deoxyribonucleic acid (DNA) analysis surcharge on the defendant. Before the legislature adopted 2013 Wis. Act 20 (Act 20), the relevant statute said the court “may” impose that surcharge. Now, however, the statute says the court “shall” impose the surcharge. The court of appeals certified Mr. Michael L. Cox’s appeal to us so that we may determine whether the substitution of “shall” for “may” means that circuit courts no longer have the discretion to waive the surcharge. We conclude that Act 20 eliminated that discretion, and therefore affirm the circuit court.

Affirmed

Concur:

Dissent:
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WI Supreme Court

Case Name: Wisconsin Judicial Commission v. The Honorable Frank M. Calvert

Case No.: 2018 WI 68

Focus: Judicial Misconduct – Commissioner Misconduct

We review, pursuant to Wis. Stat. § 757.91 (2015-16), a Judicial Conduct Panel’s findings of fact, conclusions of law, and recommendation for discipline for the Honorable Frank M. Calvert, a court commissioner for the Oconto County Circuit Court. We conclude that a 15-day suspension is the appropriate discipline for Commissioner Calvert’s judicial misconduct.

Commissioner Calvert has been a circuit court commissioner for Oconto County for 19 years. He has not been the subject of any prior disciplinary action by the Wisconsin Judicial Commission. The Judicial Commission filed a complaint against Commissioner Calvert on September 8, 2017, alleging that he had engaged in judicial misconduct by his actions, described below, in presiding over an action seeking a harassment injunction. The Judicial Commission filed a complaint against Commissioner Calvert on September 8, 2017, alleging that he had engaged in judicial misconduct by his actions, described below, in presiding over an action seeking a harassment injunction.

Commissioner Calvert did not file an answer to the complaint, which led the Judicial Commission to file a motion for default judgment. On January 2, 2018, Commissioner Calvert filed a letter with this court stating that he did not contest the facts alleged in the complaint. Consistent with an order issued by the Judicial Conduct Panel, the parties filed briefs on the issue of the appropriate discipline to be imposed. After receiving these briefs, the Judicial Conduct Panel made findings of fact based on the uncontested allegations of the complaint. On the basis of those facts, the Judicial Conduct Panel made conclusions of law and recommended that this court suspend Commissioner Calvert for no fewer than five and no more than 15 days. This recommendation exceeded the disciplinary sanction that Commissioner Calvert suggested in his brief to the panel and in his January 2, 2018 letter to the court: a reprimand. The panel’s recommendation more closely followed the sanction proposed by the Judicial Commission, which suggested discipline ranging from a reprimand to a short suspension.

IT IS ORDERED that the Honorable Frank M. Calvert is suspended from the office of circuit court commissioner without compensation and prohibited from exercising any of the powers or duties of a circuit court commissioner in Wisconsin for a period of 15 days, commencing July 16, 2018.

Ordered

Concur:

Dissent:
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WI Supreme Court

Case Name: Office of Lawyer Regulation v. Sarah Clement

Case No.: 2018 WI 69

Focus: Attorney Disciplinary Proceedings

We review the report of Referee John Nicholas Schweitzer recommending that Attorney Sarah Clemment be declared in default, concluding that Attorney Clemment engaged in professional misconduct, and recommending that she be publicly reprimanded. Attorney Clemment failed to present a defense despite being given the opportunity to do so, and she did not oppose the Office of Lawyer Regulation’s (OLR) motion for default. Accordingly, we declare her to be in default. We also conclude that a public reprimand is an appropriate sanction for her misconduct. We further agree with the referee that Attorney Clemment should be required to make restitution in the amount of $5,000, and the full costs of the proceeding, which are $802.19 as of April 12, 2018, should be assessed against her.

Affirmed

Concur:

Dissent:
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Supreme Court Digests

United States Supreme Court

Case Name: China Agritech, Inc. v. Resh, et al.

Case No.: 17-432

Focus: Statute of Limitations – Class Action

This case concerns the tolling rule first stated in American Pipe & Constr. Co. v. Utah, 414 U. S. 538 (1974). The Court held in American Pipe that the timely filing of a class action tolls the applicable statute of limitations for all persons encompassed by the class complaint. Where class-action status has been denied, the Court further ruled, members of the failed class could timely intervene as individual plaintiffs in the still-pending action, shorn of its class character. See id., at 544, 552–553. Later, in Crown, Cork & Seal Co. v. Parker, 462 U. S. 345 (1983), the Court clarified American Pipe’s tolling rule: The rule is not dependent on intervening in or joining an existing suit; it applies as well to putative class members who, after denial of class certification, “prefer to bring an individual suit rather than intervene . . . once the economies of a class action [are] no longer available.” 462 U. S., at 350, 353–354; see California Public Employees’ Retirement System v. ANZ Securities, Inc., 582 U. S. ___, ___ (2017) (slip op., at 13) (American Pipe “permitt[ed] a class action to splinter into individual suits”); Smith v. Bayer Corp., 564 U. S. 299, 313–314, n. 10 (2011) (under American Pipe tolling rule, “a putative member of an uncertified class may wait until after the court rules on the certification motion to file an individual claim or move to intervene in the [existing] suit”).

The question presented in the case now before us: Upon denial of class certification, may a putative class member, in lieu of promptly joining an existing suit or promptly filing an individual action, commence a class action anew beyond the time allowed by the applicable statute of limitations? Our answer is no. American Pipe tolls the statute of limitations during the pendency of a putative class action, allowing unnamed class members to join the action individually or file individual claims if the class fails. But American Pipe does not permit the maintenance of a follow-on class action past expiration of the statute of limitations

Reversed and Remanded

Dissenting:

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

Case Name: Husted, Ohio Secretary of State v. A. Philip Randolph Institute, et al.

Case No.: 16-980

Focus: Voter Rights Update – Compliance With Federal Law

It has been estimated that 24 million voter registrations in the United States—about one in eight—are either invalid or significantly inaccurate. Pew Center on the States, Election Initiatives Issue Brief (Feb. 2012). And about 2.75 million people are said to be registered to vote in more than one State. Ibid.

At issue in today’s case is an Ohio law that aims to keep the State’s voting lists up to date by removing the names of those who have moved out of the district where they are registered. Ohio uses the failure to vote for two years as a rough way of identifying voters who may have moved, and it then sends a preaddressed, postage prepaid card to these individuals asking them to verify that they still reside at the same address. Voters who do not return this card and fail to vote in any election for four more years are presumed to have moved and are removed from the rolls. We are asked to decide whether this program complies with federal law.

Reversed

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

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

Case Name: Sveen, et al. v. Melin

Case No.: 16-1432

Focus: Divorce – Automatic Revocation Rule

A Minnesota law provides that “the dissolution or annulment of a marriage revokes any revocable[] beneficiary designation[] made by an individual to the individual’s former spouse.” Minn. Stat. §524.2–804, subd. (2016). That statute establishes a default rule for use when Minnesotans divorce. If one spouse has made the other the beneficiary of a life insurance policy or similar asset, their divorce automatically revokes that designation—on the theory that the policyholder would want that result. But if he does not, the policyholder may rename the ex-spouse as beneficiary.

We consider here whether applying Minnesota’s automatic revocation rule to a beneficiary designation made before the statute’s enactment violates the Contracts Clause of the Constitution. We hold it does not.

Reversed and Remanded

Dissenting: GORSUCH, J., filed a dissenting opinion.

Concurring:
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United States Supreme Court

Case Name: Washington v. United States, et al.

Case No.: 17-269

Focus: Case Affirmation

The judgment is affirmed by an equally divided Court. JUSTICE KENNEDY took no part in the decision of this case.

Affirmed

Dissenting:

Concurring:
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United States Supreme Court

Case Name: Animal Science Products, Inc. et al. v. Hebei Welcome Pharmaceutical Co. LTD., et al.

Case No.: 16-1220

Focus: Statutory Interpretation – Relevant of Foreign Law In Federal Court

When foreign law is relevant to a case instituted in a federal court, and the foreign government whose law is in contention submits an official statement on the meaning and interpretation of its domestic law, may the federal court look beyond that official statement? The Court of Appeals for the Second Circuit answered generally “no,” ruling that federal courts are “bound to defer” to a foreign government’s construction of its own law, whenever that construction is “reasonable.” In re Vitamin C Antitrust Litigation, 837 F. 3d 175, 189 (2016).

We hold otherwise. A federal court should accord respectful consideration to a foreign government’s submission, but is not bound to accord conclusive effect to the foreign government’s statements. Instead, Federal Rule of Civil Procedure 44.1 instructs that, in determining foreign law, “the court may consider any relevant material or source . . . whether or not submitted by a party.” As “[t]he court’s determination must be treated as a ruling on a question of law,” Fed. Rule Civ. Proc. 44.1, the court “may engage in its own research and consider any relevant material thus found,” Advisory Committee’s 1966 Note on Fed. Rule Civ. Proc. 44.1, 28 U. S. C. App., p. 892 (hereinafter Advisory Committee’s Note). Because the Second Circuit ordered dismissal of this case on the ground that the foreign government’s statements could not be gainsaid, we vacate that court’s judgment and remand the case for further consideration.

Vacated and Remanded

Dissenting:

Concurring:
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