Weekly Case Digests — July 9-July 13, 2018

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Tamara M. Loertscher v. Eloise Anderson, et al.

Case No.: 17-1936

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

Focus: Constitutionality – Act 292

Tamara M. Loertscher brought this action under 42 U.S.C. § 1983 challenging the constitutionality of 1997 Wisconsin Act 292 (“Act 292” or “the Act”), a legislative measure designed to address the effects of prenatal substance abuse. Act 292 brings unborn children and their mothers within the jurisdiction of the juvenile courts if the mothers exhibit a habitual lack of self‐control with respect to alcohol or drugs that raises a substantial health risk for their unborn children. Ms. Loertscher was subjected to the provisions of the statute when, after seeking treatment at a county health facility, her caregivers determined that she was pregnant and that she had tested positive for methamphetamine, amphetamines, and tetrahydrocannabinol. Pursuant to the provisions of the Act, the state court ordered Ms. Loertscher to report to an alcohol and drug abuse treatment center for assessment and possible treatment. When she failed to comply with the order, the court found her in contempt and placed her in county detention. She eventually agreed to participate in the program.

We conclude that Ms. Loertscher’s case is moot. She has moved out of the State of Wisconsin and has no plans to return. Consequently, it is not reasonably likely that she will again be subject to the Act’s provisions. Accordingly, we vacate the district court’s entry of judgment against the state defendants and remand with instructions to dismiss the action as moot.

Vacated and Remanded

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7^th Circuit Court of Appeals

Case Name: United States of America v. Aaron Lamon

Case No.: 17-2764

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

Focus: Sentencing Guidelines

Sentencing judges ordinarily “group” counts of conviction when they involve “substantially the same harm.” U.S.S.G. § 3D1.2. In United States v. Sinclair, 770 F.3d 1148 (7th Cir. 2014), we ruled that when facing a particular combination of counts—the same combination in this case—a judge may not group them. Aaron Lamon pleaded guilty to three counts: (1) possessing cocaine with intent to distribute, 21 U.S.C. § 841(a)(1); (2) possessing a firearm in furtherance of that crime, 18 U.S.C. § 924(c)(1)(A); and (3) possessing a firearm as a felon, id. § 922(g)(1). Following Sinclair, at sentencing the judge did not group Lamon’s first and third counts—his drug‐trafficking conviction and felon‐in‐possession conviction. Because Lamon has not provided any valid basis for overturning Sinclair, we affirm the judgment.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Scott A. Milliman, Sr., v. County of McHenry, et al.

Case No.: 17-2687

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

Focus: 1^st Amendment Violation

Plaintiff Scott A. Milliman, Sr. is a former McHenry County Sheriff’s Deputy. While working for the McHenry County Sheriff’s Department (“MCSD”), Milliman gave a deposition in which he accused Sheriff Keith Nygren of corruption, bribery, securing fraudulent loans, trafficking illegal aliens, and soliciting the murder of two individuals. Based upon these allegations, Nygren and his subordinates referred Milliman to a psychologist to evaluate whether he was fit for duty. The psychologist determined that Milliman suffered from cognitive and psychological problems from a previous brain tumor in his right frontal lobe that rendered him unfit to perform his duties. MCSD terminated Milliman based upon the results of the fitness examination, the false allegations against Nygren, and violations of multiple MCSD General Orders. In response, Milliman sued Nygren, Nygren’s subordinates, and the county in federal district court under 42 U.S.C. § 1983. Milliman claimed that defendants violated his First Amendment rights by retaliating against him for making protected speech. The district court granted summary judgment to defendants on the ground that the fitness‐for‐duty examination provided an independent, non‐retaliatory, non‐pretextual basis for Milliman’s termination. For the reasons below, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Bennie Kennedy v. John H. Davis

Case No.: 17-1645; 17-1786

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

Focus: Abuse of Discretion – Rule 11 and Rule 60

In 2012, Bennie Kennedy filed a lawsuit against his longtime employer, Schneider Electric. In 2014, the district court granted summary judgment for Schneider Electric. More than a year later, and without offering any new evidence, Kennedy’s lawyer filed a motion to set aside the judgment for fraud on the court, accusing Schneider Electric’s lawyers of suborning perjury. The district court denied that motion and exercised its discretion to impose sanctions on Kennedy’s lawyer under Rule 11. Kennedy appeals the denial of his motion, and his lawyer appeals the sanction order. We affirm both decisions.

The district court did not abuse its discretion in denying relief under Rule 60 or in imposing sanctions under Rule 11. The rulings of the district court are AFFIRMED.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Anthony D. Oliver v. Joint Logistics Managers, Inc.

Case No.: 17-1633

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

Focus: EEOC Claim- Sufficiency of Evidence

Anthony Oliver sued his employer, Joint Logistics Managers, Inc., under 42 U.S.C. § 1981, alleging that it discriminated against him when it laid him off and when it hired another applicant to fill an open position. He also alleges that his employer retaliated against him after he filed a charge with the EEOC. The district court granted summary judgment in favor of Oliver’s employer. Because Oliver has failed to present essential evidence in support of each of his claims, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Kevin R. Carmody v. Board of Trustees of the University of Illinois, et al.

Case No.: 16-1335

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

Focus: Wrongful Termination – Whistleblower-protection

The University of Illinois fired plaintiff Kevin Carmody from his job as an information technology manager after printed copies of a professor’s privileged emails suspiciously ended up in Carmody’s home newspaper box. The emails allegedly exposed inconsistencies in the professor’s testimony in a separate lawsuit that Carmody was pursuing against a different professor. The university learned about the mysterious delivery because Carmody’s lawyer in the lawsuit filed the emails with the court. After finding that it was “more probable than not” that Carmody improperly obtained the emails himself, the university fired him. Carmody sued the university’s board of trustees and several university officials alleging that he was fired without due process of law both before and after his firing, and that his firing violated an Illinois whistle-blower statute. The district court dismissed the case at the motion to dismiss stage.

In an earlier appeal, we held that Carmody had pleaded a plausible claim that he was fired without pre-termination due process of law, but that his decision to withdraw from the post-termination hearing foreclosed his due process claim based on the post-termination procedures. Carmody v. Board of Trustees of University of Illinois (Carmody I), 747 F.3d 470 (7th Cir. 2014). We also affirmed dismissal of the state-law claim. On remand, the district court granted summary judgment for some defendants, Carmody v. Board of Trustees of University of Illinois (Carmody II), No. 12-CV-2249, 2015 WL 13675382 (C.D. Ill. Nov. 17, 2015), and Carmody lost at trial on his claim against three remaining defendants for denial of due process of law before he was fired. In this new appeal, Carmody raises seven issues—four regarding summary judgment and three pre-trial evidentiary issues. He does not challenge the conduct of the trial or the verdict on the pre-termination due process claim. We find no error and affirm the judgment of the district court.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Adam Delgado v. Merit Systems Protection Board

Case No.: 16-1313

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

Focus: Whistleblower Protection Act Violation

This federal whistleblower case presents our first review of a decision of the Merit Systems Protection Board since Congress expanded judicial review beyond the Federal Circuit, at least temporarily. Petitioner Adam Delgado is a special agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives. He alleges that his supervisors retaliated against him after he reported his suspicions that another agent had improperly shot at a fleeing suspect, provided an inaccurate report of the incident, and testified falsely about it in a federal criminal trial.

Delgado filed a whistleblower complaint with the Office of Special Counsel (OSC), the federal office charged with investigating allegations that an agency has violated the Whistleblower Protection Act by retaliating against its employee for, as relevant here, disclosing “any violation of law, rule, or regulation.” See 5 U.S.C. §§ 1214(a)(1)(A), 2302(b)(8). The OSC declined to investigate. It told Delgado that he had not made a disclosure protected by the statute and that he had failed to provide sufficient evidence to support his allegations of retaliation.

Delgado then appealed to the Merit Systems Protection Board, but the Board dismissed his appeal for lack of jurisdiction. The Board reasoned that Delgado had not satisfied the requirement that he “seek corrective action before the Special Counsel before seeking corrective action from the Board.” See 5 U.S.C. § 1214(a)(3). According to the Board, Delgado could not prove that he made a “protected disclosure” or gave the OSC enough information to launch an investigation. Delgado has petitioned for judicial review of the dismissal of his appeal. See 5 U.S.C. § 7703(a). We find that the OSC and the Board applied unduly stringent and, we believe, arbitrary requirements on Delgado. The Board thus erred in finding that Delgado failed to exhaust administrative remedies with the OSC. We grant the petition for review and remand to the Board for further proceedings consistent with this opinion, without commenting on the ultimate merit of Delgado’s underlying accusations or his claim of unlawful retaliation.

Petition Granted

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7^th Circuit Court of Appeals

Case Name: United States of America v. Larry J. Norton

Case No.: 17-2898

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

Focus: Motion to Suppress Evidence Denied

After a six-day trial, a jury convicted Larry Norton of conspiring to distribute and conspiring to possess with intent to distribute large quantities of heroin and cocaine. The district court sentenced Norton to a mandatory life term of imprisonment. Norton now appeals his conviction, challenging the district court’s denial of his motion to suppress evidence obtained as a result of a traffic stop and the district court’s admission at trial of recorded statements made by a confidential informant. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Anthony E. Simpkins v. DuPage Housing Authority, et al.

Case No.: 17-2685

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

Focus: FLSA Violation

Anthony Simpkins sued the DuPage Housing Authority and DHA Management, Inc. (collectively, DHA), alleging various violations of the Fair Labor Standards Act (FLSA), the Illinois Minimum Wage Law (IMWL), the Illinois Employee Classification Act (IECA), the Illinois Prevailing Wage Act (IPWA), and the Family and Medical Leave Act (FMLA). On cross‐motions for summary judgment, the district court held that Simpkins was not an employee of DHA, but rather an independent contractor. Therefore, it granted summary judgment in favor of DHA as to the federal claims and relinquished jurisdiction over the state law claims. Because there are genuine disputes of fact that are material to the determination of Simpkins’ employment status, we reverse and remand.

Reversed and Remanded

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7^th Circuit Court of Appeals

Case Name: Comsys, Inc., et al. v. Frank Pacetti, et al.

Case No.: 17-2053

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

Focus: 1^st Amendment Violation

The City of Kenosha, Wisconsin, hired Comsys to be its information-technology department. Comsys had its offices inside City Hall and stored all of its electronic information on the City’s servers. The contract between Comsys and the City automatically renewed from year to year unless terminated, adding that both Comsys and the City “shall have the right, with or without cause, to terminate the Agreement by written notice delivered to the other party at least twelve (12) calendar months prior to the specified effective date of such termination.” The City’s Common Council voted on June 2, 2014, to end the contract, and the City’s Mayor (Keith G. Bosman) delivered formal notice two days later. The contract ended on June 5, 2015.

Comsys and McAuliffe contend that the contract’s termination violated the First Amendment by penalizing three episodes of speech. Plaintiffs call this “retaliation,” but that word does not add anything to the basic claim that the City made protected speech costly by ending a contract that was profitable to Comsys. See Fairley v. Andrews, 578 F.3d 518, 525 (7th Cir. 2009). Qualified immunity protects public employees who do not violate clearly established law. Unless we accept highly general statements—such as “do not invade reasonable expectations of privacy without probable cause”—as clearly establishing the law when the existence of a reasonable privacy interest is itself debatable, these appellants prevail. We have been told by the highest authority not to take general principles as clearly establishing how novel situations must be resolved. It follows that Mayor Bosman, Administrator Pacetti, and Manager St. Peter cannot be ordered to pay damages under 42 U.S.C. §1983. Whether they face liability under Wisconsin law is a question that we do not address. To the extent contested on appeal, the district court’s decision is reversed, and the case is remanded for further proceedings concerning other claims and other litigants.

Reversed and Remanded

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7^th Circuit Court of Appeals

Case Name: Pain Center of SE Indiana LLC, et al. v. Origin Healthcare Solutions LLC, et al.

Case No.: 17-1276

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

Focus: Breach of Contract – Statue of Limitations

In June 2003 Pain Center of SE Indiana contracted with a company called SSIMED LLC for medical-billing software and related services. In June 2006 the parties entered into a second contract, this time for records-management software and related services. Almost seven years later—in January 2013—Pain Center sued SSIMED raising multiple claims for relief, including breach of contract, breach of warranty, breach of the implied duty of good faith, and four tort claims, all arising out of alleged shortcomings in SSIMED’s software and services.

The district judge found the entire suit untimely and entered summary judgment for SSIMED. We affirm on all but the claims for breach of contract. The judge applied the four year statute of limitations under Indiana’s Uniform Commercial Code (“UCC”), holding that the two agreements are mixed contracts for goods and services, but the goods (i.e., the software) predominate. We disagree. Under Indiana’s “predominant thrust” test for mixed contracts, the agreements in question fall on the “services” side of the line, so the UCC does not apply. The breach-of-contract claims are subject to Indiana’s ten-year statute of limitations for written contracts and are timely. The suit may go forward only on those claims.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Donald S. Harden

Case No.: 17-1270

Officials: FLAUM, SYKES, and HAMILTON, Circuit Judges

Focus: Sufficiency of Evidence

A jury convicted defendant‐appellant Donald S. Harden of conspiring to distribute heroin, the use of which resulted in the death of Fred Schnettler. Harden was sentenced to life in prison under 21 U.S.C. § 841(b)(1)(B). That provision imposes sentencing enhancements if the defendant commits a drug offense and “death or serious bodily injury results from the use of such substance.” On appeal, Harden argues that the prosecution failed to present sufficient evidence to establish beyond a reasonable doubt that his heroin caused Schnettler’s death. Relatedly, Harden contends that the district court failed to adequately instruct the jury on causation. Harden also claims that the district court erred by excluding testimony about an alternative heroin source and denying his motion for a mistrial after inadmissible evidence entered the jury room. Finally, Harden maintains that the prosecution misstated evidence during closing argument. For the reasons below, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Brooks Goplin v. WeConnect, Incorporated

Case No.: 18-1193

Officials: MANION and BARRETT, Circuit Judges, and GETTLEMAN, District Judge.*

Focus: Court Error – Party to Contract

WeConnect, Inc. asks us to reverse the district court for making a factual mistake. The district court found that WeConnect was not a party to the arbitration agreement it sought to enforce. WeConnect says that the district court misunderstood the nature of its relationship with the entity named in the arbitration agreement. Because the district court did not clearly err, we affirm its ruling.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Henry Fiorentini v. Paul Revere Life Insurance Company, et al.

Case No.: 17-3137

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

Focus: Breach of Contract

Henry Fiorentini is the owner and president of Panatech, Inc., a small technology company. When cancer treatment left him unable to perform his job, he received total disability benefits under a policy he held with the Paul Revere Life Insurance Company. Five years later, after Fiorentini was back at work and exercising full control of the company, Paul Revere notified him that he no longer qualified for the benefits. Fiorentini argued that he still satisfied the policy’s requirements for total disability, because even though he could perform most of his job duties, he was unable to do what it takes to generate new business. Paul Revere rejected that argument, and Fiorentini sued it for breach of contract. We agree with the district court that Fiorentini does not qualify for total disability coverage under his policy.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Jose Maldonado, et al.

Case No.: 16-4083; 17-1402

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

Focus: Jury Instructions

Jose Maldonado and Francisco Masias (together, “the Defendants”) were charged with conspiring to distribute cocaine, amongst six other counts irrelevant to this appeal. During trial, the district court gave a multiple conspiracies jury instruction and refused to give a “meeting of the minds” instruction proposed by Masias. The jury convicted the Defendants on all counts, and they now appeal. They contend the government lacked sufficient evidence to prove conspiracy between them and Edwin Rodriguez, a cooperating defendant, and Masias contends separately that the district court erred by refusing to give a “meeting of the minds” jury instruction.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Tarrance D. Jenkins

Case No.: 2017AP418-CR

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

Focus: Court Error – Abuse of Discretion

Tarrance D. Jenkins appeals from a judgment, entered on a jury’s verdict, convicting him on one count of endangering safety by use of a dangerous weapon as a party to a crime.  Jenkins claims that the trial court lost competency when it ordered the complaint dismissed with prejudice, so the court erred when it vacated the dismissal a few minutes later. Jenkins further claims that the court erred when it denied his motion to dismiss at the close of the State’s case. Jenkins also asserts this court should exercise its discretionary powers to grant him a new trial in the interest of justice. We reject Jenkins’ arguments and affirm the judgment.

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WI Court of Appeals – District I

Case Name: Reinhart Foodservice LLC, v. Paul Bouraxis, et al.

Case No.: 2017AP694

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

Focus: Contract Validity – Personal Guaranty

Paul Bouraxis appeals from a money judgment, entered in favor of Reinhart Foodservice, LLC, after the circuit court denied Bouraxis’s motion for summary judgment and granted Reinhart’s cross-motion. Bouraxis contends there is no valid contract with Reinhart on which he could be held liable, competing inferences exist regarding agency, and a personal guaranty is not enforceable. We reject Bouraxis’s arguments and affirm the judgment.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Laron Henry

Case No.: 2017AP939-CR; 2017AP940-CR

Officials: Brennan, Brash and Dugan, JJ.

Focus: Plea Withdrawal

Laron Henry appeals two judgments of conviction and an order denying his postconviction motion, claiming that manifest injustice entitles him to withdraw his guilty pleas post-sentencing. Henry pled guilty, as part of plea negotiations, to battery as a repeater, felony intimidation of a witness, and felony bail jumping. He claims there was a manifest injustice because: (1) he did not “ratify” his plea as is required by State v. Cain, 2012 WI 68, ¶26, 342 Wis. 2d 1, 816 N.W.2d 177; (2) he failed to understand the elements of intimidation of a witness, specifically the element of malicious intent; and (3) there was no factual basis for his plea to the intimidation of a witness charge on the malicious intent element because he denied having the requisite intent. Additionally, he contends that the postconviction court erred in denying his postconviction motion without a hearing. For the reasons following, we affirm.

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WI Court of Appeals – District IV

Case Name: Brad Bottomley v. Josh Seaverson

Case No.: 2017AP995

Officials: BRENNAN, J.

Focus: Retaliatory Eviction

Josh Seaverson appeals an order of the trial court granting eviction and a monetary judgment in favor of his landlord, Brad Bottomley.  He argues that the March 31, 2017 five-day notice to vacate was legally insufficient because it violated WIS. STAT. § 704.17, the terms of the lease, and certain federal regulations that he argues are applicable. Specifically, he argues that the property owner failed—as he contends was required by law—to provide “written notice of the violations and an opportunity to correct them.” Secondly, he argues that the eviction was retaliatory and thus violated WIS. STAT. § 704.45. Finally he argues that both the trial and appellate courts deprived him of his right to appellate review pursuant to WIS. STAT. § 808.03(1) by not granting a stay of the eviction order pending his appeal. We reject his arguments and affirm the order of eviction.

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WI Court of Appeals – District I

Case Name: County of Milwaukee v. Ross J. Romenesko

Case No.: 2017AP1042; 2017AP1043; 2017AP1044

Officials: BRASH, J.

Focus: Abuse of Discretion – Expert Testimony

The County of Milwaukee appeals an order of the circuit court granting several motions of the defendant, Ross J. Romenesko, relating to charges against him for operating a motor vehicle while under the influence of an intoxicant. Romenesko’s motions requested sanctions against the County for alleged violations of the scheduling order; specifically, he sought to (1) suppress evidence contained in a revised report relating to the test results of his blood sample; and (2) preclude the testimony of all but one of the County’s experts regarding those test results. Romenesko then filed a subsequent motion seeking further sanctions against the County: dismissal with prejudice of all the charges against him. This motion was based on the same alleged scheduling order violations.

The circuit court granted Romenesko’s motion to suppress the revised report, and further, it ordered that all of the County’s experts were precluded from testifying, without exception—going beyond Romenesko’s request to exclude all but one expert. The circuit court then subsequently granted Romenesko’s motion to dismiss all charges with prejudice, agreeing that the County had egregiously violated the scheduling order.

The County asserts that it did not violate the scheduling order. However, if a sanction is warranted, the County contends that dismissal with prejudice of all charges against Romenesko was not just, and therefore was an erroneous exercise of the circuit court’s discretion.

We affirm the circuit court’s decision relating to the motion to suppress evidence contained in the revised report, but reverse the court’s decision precluding testimony from all of the County’s experts, without exception. We also reverse the court’s dismissal with prejudice of all of the charges against Romenesko, and remand this matter to the circuit court to reinstate the charges.

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WI Court of Appeals – District I

Case Name: Saleem El-Amin v. Department of Children and Families

Case No.: 2017AP1561

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

Focus: Child Neglect – Statutory Interpreration – Court Error

Saleem El-Amin appeals an order of the circuit court affirming a decision of the Department of Children and Families (DCF) that found El-Amin committed neglect of a child within the meaning of WIS. STAT. § 48.02(12g) (2015-16).  El-Amin contends that: (1) he is not a caregiver, as contemplated by WIS. STAT. § 48.685; (2) the Administrative Law Judge (ALJ) violated his due process rights; (3) the ALJ relied on facts contrary to the evidence; and (4) the proceedings before the ALJ were fundamentally unfair. We disagree and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Theoris Raphel Stewart

Case No.: 2017AP1587-CR; 2017AP1588-CR

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

Focus: Plea & Sentencing

Theoris Raphel Stewart appeals two judgments of conviction and an order denying his motion for postconviction relief. He seeks to withdraw his guilty plea to two counts of identity theft on the grounds of manifest injustice because he argues that no factual basis exists for his plea. Stewart had, in a previous case not otherwise relevant to this appeal, pled guilty to two felony counts of failure to pay court-ordered child support and presented forged documents in an attempt to influence his sentence.

The forgeries were discovered after Stewart was sentenced in the child support case, and the State then filed new charges, including the two identity theft charges relevant to this appeal. Stewart did not dispute that he had forged the documents—which appeared to be official documents from two universities and from the United States Department of Veterans Affairs (VA). Nor did he dispute that he had lied to the writer of the presentence investigation report (PSI) about his education and the nature of his military discharge for the purpose of “try[ing] to find a shortcut” to a better outcome in the previous case.

Rather, Stewart argues that his admitted unauthorized use of the forged documents did not constitute a violation of the identity theft statute under which he was charged. See WIS. STAT. § 943.203(2) (2015-16). He argues that not all of the required elements of the crime are satisfied for the following reasons: (1) he did not represent that he was “acting with the authorization or consent of the entity,” and (2) the use of the identifying information of the two entities was not for the purpose of “obtain[ing] … anything … of value or benefit.” See § 943.203(2)(a). Specifically, he argues that there is no evidence that he expressly represented that he had the entities’ “authorization or consent,” and that “even assuming [the sentencing court] gave some consideration to the misrepresentations at issue, the sentencing court’s determination is not ‘anything of value or benefit’ as intended by the legislature.” We reject Stewart’s arguments and affirm.

Recommended for Publication

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Marquis Lakeith Pendelton

Case No.: 2017AP2081-CR

Officials: DUGAN, J.

Focus: Motion to Suppress Evidence Denied

Marquis Lakeith Pendelton appeals from the judgment convicting him of one count of carrying a concealed weapon, following his guilty plea. He also appeals the order denying his postconviction motion. However, Pendelton challenges only the trial court’s prior ruling denying his motion to suppress evidence.

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WI Court of Appeals – District III

Case Name: Tissue Technology, LLC v. St. Paper, LLC, et al.

Case No.: 2017AP2527-FT

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

Focus: Breach of Contract

ST Paper, LLC appeals an order denying its motion for summary judgment on a breach-of-contract claim brought against it by Tissue Technology, LLC. We conclude that Tissue Technology is not the real party in interest to enforce the contract because it assigned all of its rights under the contract to a bank as collateral. We therefore reverse the order on appeal and remand with directions that the circuit court enter summary judgment in favor of ST Paper.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. R.D.W., Sr.

Case No.: 2018AP351

Officials: BRENNAN, J.

Focus: Termination of Parental Rights

R.D.W., Sr. appeals the October 11, 2017 order terminating his parental rights to his child, R.D.W., Jr., contending on appeal that the trial court erred in denying his Batson challenge at the grounds jury trial. He argues that in ruling on his Batson motion, the trial court erred in the analysis by skipping entirely the third prong of the Batson purposeful discrimination test and failing to consider the persuasiveness and plausibility of the State’s proffered race-neutral explanation for striking an African-American, Juror 2. See Batson v. Kentucky, 476 U.S. 79, 97-98 (1986).

The State and Guardian ad Litem (GAL) 3 respond that R.D.W., Sr. failed to meet his burden under the third prong of Batson of showing that they intended purposeful racial discrimination when they struck Juror 2. See State v. Lamon, 2003 WI 78, ¶32, 262 Wis. 2d 747, 664 N.W.2d 607 (citing Batson, 476 U.S. at 98). For the following reasons we agree with the State and GAL and affirm.

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WI Court of Appeals – District II

Case Name: Jeanne Glowacki, et al. v. Lakeview Neurorehab CTR Midwest, Inc.

Case No.: 2017AP1636

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

Focus: Statutory Interpretation – Wisconsin’s Worker’s Compensation Act

Jeanne Glowacki appeals from an order granting summary judgment in favor of Lakeview Neurorehab CTR Midwest, Inc. (Midwest). The circuit court granted summary judgment to Midwest on the basis that WIS. STAT. § 102.03(2) (2015-16), the exclusive remedy provision of Wisconsin’s Worker’s Compensation Act, precluded her claims as a matter of law.  As we agree that Midwest was Glowacki’s employer, we affirm.

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WI Court of Appeals – District II

Case Name: Willis W. Hagen, II v. Board of Regents of the University of Wisconsin System, et al.

Case No.: 2017AP2058-AC

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

Focus: Statutory Interpretation – Injunctive Relief

In this Public Records Law case, Willis W. Hagen, II, brought an action under WIS. STAT. § 19.356 (2015-16) to enjoin the Board of Regents of the University of Wisconsin System and the University of Wisconsin-Oshkosh (the University) from disclosing to Alexander Nemec records relating to an investigation of a complaint against Hagen, a professor at the University. The circuit court denied the request for injunctive relief, concluding that no statutory or common-law exception barred the records’ release and that the presumption of public access, see WIS. STAT. § 19.31, outweighed any public interest in nondisclosure. We affirm the order.

Recommended for Publication

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WI Court of Appeals – District IV

Case Name: Sarah Mae Pappathopoulos v. Christopher Thomas Pappathopoulos

Case No.: 2017AP399

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

Focus: Divorce – Child Placement and Maintenance

Sarah Pappathopoulos and Christopher Pappathopoulos were divorced in 2016. Christopher appeals two parts of the judgment of divorce. First, Christopher contends that the circuit court’s order continuing the appointment of a Parent Coordinator, over Christopher’s objection, to decide various issues concerning the child of the parties exceeded the circuit court’s authority. We agree and reverse those portions of the judgment of divorce. Second, Christopher argues that the circuit court erred in denying his maintenance claim. We conclude that the circuit court properly exercised its discretion in denying Christopher’s maintenance claim and affirm that decision of the circuit court.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Javien Cajujuan Pegeese

Case No.: 2017AP741-CR

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

Focus: Defective Plea

Javien Pegeese appeals a judgment of conviction and an order denying his postconviction motion. The issue is whether the plea colloquy was defective as to the constitutional rights Pegeese was waiving. We conclude it was not defective, and we affirm.

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WI Court of Appeals – District IV

Case Name: D.H. v. N.K.E.

Case No.: 2017AP1282; 2017AP1289; 2017AP1309

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

Focus: Abuse of Discretion – Expert Witness

Two guardianship cases and a divorce case have been consolidated for this appeal. The maternal grandmother of two children appeals a circuit court order terminating her guardianships of the children and awarding sole custody and primary physical placement to the children’s father.  The grandmother makes the following challenges to circuit court decisions on appeal (or, as to some, that she would make if the challenges were properly framed): (1) the court erroneously exercised its discretion by denying the grandmother’s motion to dismiss the father’s petitions to terminate the grandmother’s guardianships as a sanction for pre-trial discovery violations by the father, or by failing to take other steps in response to the discovery violations; (2) the court erroneously exercised its discretion by allowing the father’s expert witnesses to testify by telephone; (3) the court erred in allegedly failing to enforce foreign protection orders, issued by a Washington state court; (4) the court erred in concluding that a social worker was qualified to testify as an expert witness; (5) the court erroneously exercised its discretion in terminating the guardianships; (6) the court was not impartial; and (7) the court relied on erroneous factual findings or made an erroneous discretionary determination in deciding that there were not “other compelling reasons” to continue the grandmother’s guardianships. We affirm.

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WI Court of Appeals – District I

Case Name: Jodi Marie Roberts v. Aari Kevin Roberts

Case No.: 2017AP1620

Officials: Sherman, Blanchard and Kloppenburg, JJ.

Focus: Divorce – Maintenance Award

Aari Kevin Roberts appeals pro se from a judgment of divorce, challenging the maintenance award, the child support amount, and the property division. For the reasons discussed below, we affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin Ex Rel. Drazen Markovic

Case No.: 2017AP2206

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

Focus: DOC Authority – Statutory Intepretation

Wisconsin Department of Corrections Secretary Jon Litscher dismissed Drazen Markovic’s inmate complaint, which alleged that DOC acted without authority when it took money out of Markovic’s prison account beginning in 2016.  DOC took the money to satisfy unpaid restitution ordered in a 1995 judgment that imposed a sentence that Markovic completed in 2002. Markovic petitioned the circuit court for a writ of certiorari. The circuit court reversed DOC’s decision, concluding that DOC lost its authority to take money out of Markovic’s prison account to satisfy the unpaid restitution after Markovic completed the sentence imposed in the judgment that ordered the restitution. As a remedy, the court ordered DOC to return to Markovic the money it took out of his prison account.

On appeal, DOC raises two issues: (1) whether DOC acted within its authority when it took money out of Markovic’s prison account beginning in 2016 to satisfy unpaid restitution ordered in a judgment that imposed a sentence that Markovic completed in 2002; and (2) if DOC acted without authority, whether the circuit court in this certiorari action lacked authority to order DOC to return to Markovic the money it improperly took out of his prison account.

On the first issue, DOC argues that both WIS. STAT. §§ 303.01(8)(b) and 301.32(1) (2015-16) “independently provide DOC with authority to collect restitution” ordered in a judgment that imposes a sentence that a defendant has completed. These statutes govern DOC’s authority to use distinct sources of inmate money for distinct purposes. Pertinent here, WIS. STAT. § 303.01(8)(b) governs the authority of DOC to “distribute [an inmate’s] earnings for obligations … which have been reduced to judgment that may be satisfied according to law”; and WIS. STAT. § 301.32(1) governs the authority of DOC to use money that has been “delivered” to a inmate’s prison account “for … the benefit of the prisoner.” As we will explain, we conclude that:

On the second issue, we conclude that the circuit court erred in ordering DOC to return any money it improperly took from Markovic’s prison earnings because, under controlling case law, the payment of money damages is not available as a remedy in certiorari actions, and Markovic fails to point to any exception to this rule. Accordingly, we affirm in part and reverse in part.

Recommendation for Publication

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Kristopher Arnold Leitzinger

Case No.: 2017AP2268-CR

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

Focus: Motion to Suppress Evidence Denied

Kristopher Leitzinger appeals a judgment of conviction. The dispositive issue is whether his suppression motion should have been granted because police lacked a legal basis to continue the investigatory stop after seeing that the person they wanted to speak to was not in the vehicle. We conclude that the motion should have been granted, and we reverse.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Adams Outdoor Advertising Limited Partnership v. City of Madison

Case No.: 2018 WI 70

Focus: Acknowledgement of Rights – Right To Visibility of Private Property

The petitioner, Adams Outdoor Advertising Limited Partnership, seeks review of an unpublished per curiam decision of the court of appeals affirming the circuit court’s grant of summary judgment dismissing Adams’ takings claim against the City of Madison. The court of appeals concluded that Adams failed to show that the City took any property requiring just compensation. Specifically, it determined that Adams failed to demonstrate a cognizable right that underlies its asserted protected property interest. According to Adams, the City took its property interest in its “vested rights in the legal nonconforming use” of its billboard. It alleges that a taking occurred because the City deprived it of all economically beneficial use of the west-facing side of its billboard, and therefore Adams is entitled to just compensation.

The City disagrees, arguing that Adams has failed to identify a recognized right sufficient to support its taking claim. Specifically, the City contends that property owners have no right to continued and unobstructed visibility of their property from a public road. Like the court of appeals, we determine that a right to visibility of private property from a public road is not a cognizable right giving rise to a protected property interest. Because Adams’ claim, in essence, rests on asserting this unrecognized right, its takings claim must fail. See Wis. Med. Soc’y, Inc. v. Morgan, 2010 WI 94, ¶38, 328 Wis. 2d 469, 787 N.W.2d 22. Accordingly, we affirm the decision of the court of appeals.

Affirmed

Concur:

Dissent: R.G. BRADLEY, J., dissents, joined by ROGGENSACK, C.J., and KELLY, J. (opinion filed).

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WI Supreme Court

Case Name: Office of Lawyer Regulation v. Suzanne E. Kitto

Case No.: 2018 WI 71

Focus: Attorney Disciplinary Proceedings

We review a referee’s report and recommendation concluding that Attorney Suzanne E. Kitto violated the rules of professional conduct in connection with her representation of W.C. and C.C. The referee recommended that this court impose a 60-day suspension of Attorney Kitto’s law license. We adopt the referee’s findings of fact, conclusions of law, and recommendation regarding discipline. We impose the full costs in this matter, which total $1,310.32 as of April 17, 2018. We do not impose restitution, as the Office of Lawyer Regulation (OLR) has confirmed that Attorney Kitto has made full restitution to W.C. and C.C.

Affirmed

Concur:

Dissent:

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WI Supreme Court

Case Name: State of Wisconsin v. Joseph T. Langlois

Case No.: 2018 WI 73

Focus: Jury Instructions

This is a review of a published decision of the court of appeals, State v. Langlois, 2017 WI App 44, 377 Wis. 2d 302, 901 N.W.2d 768, affirming the Washington County circuit court’s judgment of conviction for Joseph T. Langlois (“Langlois”) for homicide by negligent handling of a dangerous weapon, contrary to Wis. Stat. § 940.08(1) (2015-16), and its denial of Langlois’ postconviction motions.

On review, we consider two issues. First, we consider whether the jury instructions were erroneous. We conclude that they were not, because, taken as a whole, they accurately state the law. Consequently, we conclude that there is no basis for Langlois’ claim of ineffective assistance of counsel, there is no due process violation, and reversal in the interest of justice is not appropriate. Second, we consider whether there was sufficient evidence to support the jury’s verdict. We conclude that there was, because the evidence, viewed most favorably to sustaining the conviction, supports a finding of guilt beyond a reasonable doubt. Thus, we affirm the decision of the court of appeals.

Affirmed

Concur:

Dissent: ABRAHAMSON, J., dissents (opinion filed). R.G. BRADLEY, J., dissents (opinion filed).

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WI Supreme Court

Case Name: State of Wisconsin v. Andre L. Scott

Case No.: 2018 WI 74

Focus: Court Error – Failure to Follow Mandatory Procedure

This is an appeal from an order of the Circuit Court for Milwaukee County, Jeffrey A. Kremers, Judge. The circuit court ordered Andre Scott, the defendant, to be involuntarily medicated to competency for purposes of participating in postconviction proceedings after the circuit court found that he was not competent to proceed with his postconviction motion for relief and was not competent to refuse medication and treatment.

The defendant petitioned this court to bypass the court of appeals and decide his appeal of the circuit court order requiring involuntary medication. This court granted the petition, bypassing the court of appeals. We reverse the order of the circuit court and remand the cause to the circuit court for proceedings consistent with this opinion. We conclude, as the State urges, that because the circuit court did not follow the mandatory procedure set forth in Debra A.E., the circuit court’s order that the defendant be involuntarily medicated to competency for purposes of assisting with postconviction proceedings was issued prematurely and is invalid. Accordingly, we reverse the order of the circuit court and remand the cause to the circuit court for further proceedings consistent with this opinion.

Reversed and Remanded

Concur:

Dissent:

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Supreme Court Digests

United States Supreme Court

Case Name: Gill, et al. v. Whitford, et al.

Case No.: 16-1161

Focus: 1st and 14th Amendment Violations – Standing

The State of Wisconsin, like most other States, entrusts to its legislature the periodic task of redrawing the boundaries of the State’s legislative districts. A group of Wisconsin Democratic voters filed a complaint in the District Court, alleging that the legislature carried out this task with an eye to diminishing the ability of Wisconsin Democrats to convert Democratic votes into Democratic seats in the legislature. The plaintiffs asserted that, in so doing, the legislature had infringed their rights under the First and Fourteenth Amendments.

But a plaintiff seeking relief in federal court must first demonstrate that he has standing to do so, including that he has “a personal stake in the outcome,” Baker v. Carr, 369 U. S. 186, 204 (1962), distinct from a “generally available grievance about government,” Lance v. Coffman, 549 U. S. 437, 439 (2007) (per curiam). That threshold requirement “ensures that we act as judges, and do not engage in policymaking properly left to elected representatives.” Hollingsworth v. Perry, 570 U. S. 693, 700 (2013).

Certain of the plaintiffs before us alleged that they had such a personal stake in this case, but never followed up with the requisite proof. The District Court and this Court therefore lack the power to resolve their claims. We vacate the judgment and remand the case for further proceedings, in the course of which those plaintiffs may attempt to demonstrate standing in accord with the analysis in this opinion.

Vacated and Remanded

Dissenting:

Concurring: KAGAN, J., filed a concurring opinion, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. THOMAS, J., filed an opinion concurring in part and concurring in the judgment, in which GORSUCH, J., joined.

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United States Supreme Court

Case Name: Lozman v. City of Riviera Beach, Florida

Case No.: 17-21

Focus: Probable Cause – Retaliatory Arrest

This case requires the Court to address the intersection of principles that define when arrests are lawful and principles that prohibit the government from retaliating against a person for having exercised the right to free speech. An arrest deprives a person of essential liberties, but if there is probable cause to believe the person has committed a criminal offense there is often no recourse for the deprivation. See, e.g., Devenpeck v. Alford, 543 U. S. 146, 153 (2004). At the same time, the First Amendment prohibits government officials from retaliating against individuals for engaging in protected speech. Crawford-El v. Britton, 523 U. S. 574, 592 (1998).

The petitioner in this case alleges that high-level city policymakers adopted a plan to retaliate against him for protected speech and then ordered his arrest when he attempted to make remarks during the public-comment portion of a city council meeting. The petitioner now concedes there was probable cause for the arrest. The question is whether the presence of probable cause bars petitioner’s retaliatory arrest claim under these circumstances.

Vacated and Remanded

Dissenting: THOMAS, J., filed a dissenting opinion

Concurring:

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United States Supreme Court

Case Name: Chavez-Meza v. United States

Case No.: 17-5639

Focus: Sentencing Guidelines

This case concerns a criminal drug offender originally sentenced in accordance with the Federal Sentencing Guidelines. Subsequently, the Sentencing Commission lowered the applicable Guidelines sentencing range; the offender asked for a sentence reduction in light of the lowered range; and the District Judge reduced his original sentence from 135 months’ imprisonment to 114 months’. The offender, believing he should have obtained a yet greater reduction, argues that the District Judge did not adequately explain why he imposed a sentence of 114 months rather than a lower sentence. The Court of Appeals held that the judge’s explanation was adequate. And we agree with the Court of Appeals.

Affirmed

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

Concurring:

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United States Supreme Court

Case Name: Rosales-Mireles v. United States

Case No.: 16-9493

Focus: Sentencing Guidelines

Federal Rule of Criminal Procedure 52(b) provides that a court of appeals may consider errors that are plain and affect substantial rights, even though they are raised for the first time on appeal. This case concerns the bounds of that discretion, and whether a miscalculation of the United States Sentencing Guidelines range, that has been determined to be plain and to affect a defendant’s substantial rights, calls for a court of appeals to exercise its discretion under Rule 52(b) to vacate the defendant’s sentence. The Court holds that such an error will in the ordinary case, as here, seriously affect the fairness, integrity, or public reputation of judicial proceedings, and thus will warrant relief.

Reversed and Remanded

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

Concurring:

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United States Supreme Court

Case Name: O. John Benisek, et al. v. Linda H. Lamone, et al.

Case No.: 17-333

Focus: Preliminary Injunction – Gerrymandering

This appeal arises from the denial of a motion for a preliminary injunction in the District Court. Appellants are several Republican voters, plaintiffs below, who allege that Maryland’s Sixth Congressional District was gerrymandered in 2011 for the purpose of retaliating against them for their political views.

First, a party requesting a preliminary injunction must generally show reasonable diligence. Cf. Holmberg v. Armbrecht, 327 U. S. 392, 396 (1946). That is as true in election law cases as elsewhere. See Lucas v. Townsend, 486 U. S. 1301, 1305 (1988) (KENNEDY, J., in chambers); Fishman v. Schaffer, 429 U. S. 1325, 1330 (1976) (Marshall, J., in chambers). In this case, appellants did not move for a preliminary injunction in the District Court until six years, and three general elections, after the 2011 map was adopted, and over three years after the plaintiffs’ first complaint was filed. Plaintiffs argue that they have nevertheless pursued their claims diligently, and they attribute their delay in seeking a preliminary injunction to the “convoluted procedural history of the case” and the “dogged refusal to cooperate in discovery” by state officials. Reply Brief 22. Yet the record suggests that the delay largely arose from a circumstance within plaintiffs’ control: namely, their failure to plead the claims giving rise to their request for preliminary injunctive relief until 2016. Although one of the seven plaintiffs before us filed a complaint in 2013 alleging that Maryland’s congressional map was an unconstitutional gerrymander, that initial complaint did not present the retaliation theory asserted here. See Amended Complaint, Doc. 11, p. 3 (Dec. 2, 2013) (explaining that the gerrymandering claim did not turn upon “the reason or intent of the legislature” in adopting the map).

Second, a due regard for the public interest in orderly elections supported the District Court’s discretionary decision to deny a preliminary injunction and to stay the proceedings. See Purcell v. Gonzalez, 549 U. S. 1, 4–5 (2006) (per curiam). Plaintiffs themselves represented to the District Court that any injunctive relief would have to be granted by August 18, 2017, to ensure the timely completion of a new districting scheme in advance of the 2018 election season. Despite the District Court’s undisputedly diligent efforts, however, that date had “already come and gone” by the time the court ruled on plaintiffs’ motion. 266 F. Supp. 3d, at 815. (Such deadline has also, of course, long since passed for purposes of entering a preliminary injunction on remand from this Court.) In these particular circumstances, we conclude that the District Court’s decision denying a preliminary injunction cannot be regarded as an abuse of discretion.

Affirmed

Dissenting:

Concurring:

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United States Supreme Court

Case Name: South Dakota v. Wayfair, Inc., et al.

Case No.: 17-494

Focus: Statutory Interpretation – Commerce Clause 

When a consumer purchases goods or services, the consumer’s State often imposes a sales tax. This case requires the Court to determine when an out-of-state seller can be required to collect and remit that tax. All concede that taxing the sales in question here is lawful. The question is whether the out-of-state seller can be held responsible for its payment, and this turns on a proper interpretation of the Commerce Clause, U. S. Const., Art. I, §8, cl. 3.

In two earlier cases the Court held that an out-of-state seller’s liability to collect and remit the tax to the consumer’s State depended on whether the seller had a physical presence in that State, but that mere shipment of goods into the consumer’s State, following an order from a catalog, did not satisfy the physical presence requirement. National Bellas Hess, Inc. v. Department of Revenue of Ill., 386 U. S. 753 (1967); Quill Corp. v. North Dakota, 504 U. S. 298 (1992). The Court granted certiorari here to reconsider the scope and validity of the physical presence rule mandated by those cases.

Vacated and Remanded

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

Concurring: THOMAS, J., and GORSUCH, J., filed concurring opinions.

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United States Supreme Court

Case Name: Pereira v. Sessions, Attorney General

Case No.: 17-459

Focus: Immigration – Removal Proceedings

Nonpermanent residents, like petitioner here, who are subject to removal proceedings and have accrued 10 years of continuous physical presence in the United States, may be eligible for a form of discretionary relief known as cancellation of removal. 8 U. S. C. §1229b(b)(1). Under the so-called “stop-time rule” set forth in §1229b(d)(1)(A), however, that period of continuous physical presence is “deemed to end . . . when the alien is served a notice to appear under section 1229(a).” Section 1229(a), in turn, provides that the Government shall serve noncitizens in removal proceedings with “written notice (in this section referred to as a ‘notice to appear’) . . . specifying” several required pieces of information, including “[t]he time and place at which the [removal] proceedings will be held.” §1229(a)(1)(G)(i).1.

The narrow question in this case lies at the intersection of those statutory provisions. If the Government serves a noncitizen with a document that is labeled “notice to appear,” but the document fails to specify either the time or place of the removal proceedings, does it trigger the stop-time rule? The answer is as obvious as it seems: No. A notice that does not inform a noncitizen when and where to appear for removal proceedings is not a “notice to appear under section 1229(a)” and therefore does not trigger the stop-time rule. The plain text, the statutory context, and common sense all lead inescapably and unambiguously to that conclusion.

Reversed and Remanded

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

Concurring: KENNEDY, J., filed a concurring opinion.

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United States Supreme Court

Case Name: Lucia, et al. v. Securities and Exchange Commission

Case No.: 17-130

Focus: Statutory Interpretation – Appointments Clause

The Appointments Clause of the Constitution lays out the permissible methods of appointing “Officers of the United States,” a class of government officials distinct from mere employees. Art. II, §2, cl. 2. This case requires us to decide whether administrative law judges (ALJs) of the Securities and Exchange Commission (SEC or Commission) qualify as such “Officers.” In keeping with Freytag v. Commissioner, 501 U. S. 868 (1991), we hold that they do.

Reversed and Remanded

Dissenting: SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG, J., joined.  BREYER, J., filed an opinion concurring in the judgment in part and dissenting in part, in which GINSBURG and SOTOMAYOR, JJ., joined as to Part III.

Concurring: THOMAS, J., filed a concurring opinion, in which GORSUCH, J., joined. BREYER, J., filed an opinion concurring in the judgment in part and dissenting in part, in which GINSBURG and SOTOMAYOR, JJ., joined as to Part III.

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United States Supreme Court

Case Name: Wisconsin Central LTD., et al. v. United States

Case No.: 17-530

Focus: Statutory Interpretation – RRTA

As the Great Depression took its toll, struggling railroad pension funds reached the brink of insolvency. During that time before the rise of the modern interstate highway system, privately owned railroads employed large numbers of Americans and provided services vital to the nation’s commerce. To address the emergency, Congress adopted the Railroad Retirement Tax Act of 1937. That legislation federalized private railroad pension plans and it remains in force even today. Under the law’s terms, private railroads and their employees pay a tax based on employees’ incomes. In return, the federal government provides employees a pension often more generous than the social security system supplies employees in other industries.

This case arises from a peculiar feature of the statute and its history. At the time of the Act’s adoption, railroads compensated employees not just with money but also with food, lodging, railroad tickets, and the like. Because railroads typically didn’t count these in-kind benefits when calculating an employee’s pension on retirement, neither did Congress in its new statutory pension scheme. Nor did Congress seek to tax these in-kind benefits. Instead, it limited its levies to employee “compensation,” and defined that term to capture only “any form of money remuneration.”

It’s this limitation that poses today’s question. To encourage employee performance and to align employee and corporate goals, some railroads have (like employers in many fields) adopted employee stock option plans. The government argues that these stock options qualify as a form of “compensation” subject to taxation under the Act. In its view, stock options can easily be converted into money and so qualify as “money remuneration.” The railroads and their employees reply that stock options aren’t “money remuneration” and remind the Court that when Congress passed the Act it sought to mimic existing industry pension practices that generally took no notice of in-kind benefits. Who has the better of it? Employee stock options are not taxable “compensation” under the Railroad Retirement Tax Act because they are not “money remuneration.”

The broader statutory context points to this conclusion. For example, the 1939 Internal Revenue Code, adopted just two years later, also treated “money” and “stock” as different things. See, e.g., §27(d). And a companion statute enacted by the same Congress, the Federal Insurance Contributions Act, taxes “all remuneration,” including benefits “paid in any medium other than cash.” §3121(a). The Congress that enacted both of these pension schemes knew well the difference between “money” and “all” forms of remuneration and its choice to use the narrower term in the context of railroad pensions alone requires respect, not disregard. Even the IRS (then the Bureau of Internal Revenue) seems to have understood all this back in 1938. Shortly after the Railroad Retirement Tax Act’s enactment, the IRS issued a regulation explaining that the Act taxes “all remuneration in money, or in something which may be used in lieu of money (scrip and merchandise orders, for example).” The regulation said the Act covered things like “[s]alaries, wages, commissions, fees, [and] bonuses.” But the regulation nowhere suggested that stock was taxable. In light of these textual and structural clues and others, the Court thinks it’s clear enough that the term “money” unambiguously excludes “stock.”

Reversed and Remanded

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

Concurring:

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United States Supreme Court

Case Name: Carpenter v. United States

Case No.: 16-402

Focus: 4th Amendment – What Constitutes a Search

This case presents the question whether the Government conducts a search under the Fourth Amendment when it accesses historical cell phone records that provide a comprehensive chronicle of the user’s past movements.

Reversed and Remanded

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

Concurring:

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United States Supreme Court

Case Name: Westerngeco, LLC. v. ION Geophysical Corp.

Case No.: 16-1011

Focus: Statutory Interpretation – Patent Infringement

Under the Patent Act, a company can be liable for patent infringement if it ships components of a patented invention overseas to be assembled there. See 35 U. S. C. §271(f)(2). A patent owner who proves infringement under this provision is entitled to recover damages. §284. The question in this case is whether these statutes allow the patent owner to recover for lost foreign profits. We hold that they do.

Reversed and Remanded

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

Concurring:

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United States Supreme Court

Case Name: Oritz v. United States

Case No.: 16-1423

Focus: Appointments Clause Violation

This case is about the legality of a military officer serving as a judge on both an Air Force appeals court and the Court of Military Commission Review (CMCR). The petitioner, an airman convicted of crimes in the military justice system, contends that the judge’s holding of dual offices violated a statute regulating military service, as well as the Constitution’s Appointments Clause. The Court of Appeals for the Armed Forces (CAAF) rejected those claims, and we granted a petition for certiorari. We hold first that this Court has jurisdiction to review decisions of the CAAF, even though it is not an Article III court. We then affirm the CAAF’s determination that the judge’s simultaneous service was lawful.

Affirmed

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

Concurring: THOMAS, J., filed a concurring opinion.

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United States Supreme Court

Case Name: Currier v. Virginia

Case No.: 16-1348

Focus: 5^th Amendment Violation – Double Jeopardy

About to face trial, Michael Currier worried the prosecution would introduce prejudicial but probative evidence against him on one count that could infect the jury’s deliberations on others. To address the problem, he agreed to sever the charges and hold two trials instead of one. But after the first trial finished, Mr. Currier turned around and argued that proceeding with the second would violate his right against double jeopardy. All of which raises the question: can a defendant who agrees to have the charges against him considered in two trials later successfully argue that the second trial offends the Fifth Amendment’s Double Jeopardy Clause?

Affirmed

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

Concurring: KENNEDY, J., filed an opinion concurring in part.

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United States Supreme Court

Case Name: Nicole A. Dalmazzi v. United States

Case No.: 16-961

Focus: Writ of Certiorari

The writ of certiorari is dismissed as improvidently granted.

Ordered

Dissenting:

Concurring:

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United States Supreme Court

Case Name: Laith G. Cox, et al. v. United States

Case No.: 16-1017

Focus: Writ of Certiorari

The writ of certiorari is dismissed as improvidently granted.

Ordered

Dissenting:

Concurring:

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