Weekly Case Digests — July 16-July 20, 2018

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: United States of America v. Joseph Canfield

Case No.: 17-2199

Officials: EASTERBROOK and MANION, Circuit Judges, and LEE, ∗ District Judge.

Focus: Supervised Release Conditions

Joseph Canfield was convicted and incarcerated for possessing child pornography. While on supervised release, he violated the conditions of his release by viewing adult pornography on unauthorized smart phones. For this violation, Canfield consented to 180 days of home confinement and an additional year of supervised release. While under those additional conditions, Canfield was discharged from his sex offender treatment program for smoking marijuana, holding an infant without disclosing his offender status to the infant’s mother, and for again watching adult pornography. The district court then revoked Canfield’s supervised release and sentenced him to six months’ imprisonment, followed by five more years of supervised release.

In this appeal, Canfield contests the district court’s imposition of four special supervised release conditions: a requirement that he notify third parties about the risks his offender status poses; a condition that he undergo drug testing and substance abuse treatment at the direction of his probation officer; a prohibition on all access to sexually explicit material; and a ban on using the Internet to access sexually explicit material. For the reasons set forth below, we vacate the first three conditions, affirm the remaining condition, and remand the case to the district court for further proceedings.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Daryl Sutula-Johnson v. Office Depot, Inc.

Case No.: 17-1855

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

Focus: Breach of Contract

Plaintiff Daryl Sutula‐Johnson sued her former employer, alleging that its changes to her compensation for selling office furniture breached its contract with her and violated the Illinois Wage Payment and Collection Act. The district court granted summary judgment for the employer. We affirm summary judgment for the employer on the claims for breach of contract but reverse as to the statutory claims.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Peter Deppe v. National Collegiate Athletic Association

Case No.: 17-1711

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

Focus: Antitrust – Year In Residence Rule

This case raises an antitrust challenge to the NCAA’s “year in residence” rule, which requires student-athletes who transfer to a Division I college to wait one full academic year before they can play for their new school. A Division I football player filed a class-action lawsuit alleging that the rule is an unlawful restraint of trade in violation of § 1 of the Sherman Act. The district court dismissed the suit on the pleadings.

We affirm. The year-in-residence requirement is an eligibility rule clearly meant to preserve the amateur character of college athletics and is therefore presumptively procompetitive under NCAA v. Board of Regents of University of Oklahoma, 468 U.S. 85 (1984), and Agnew v. NCAA, 683 F.3d 328 (7th Cir. 2012).

Affirmed

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7^th Circuit Court of Appeals

Case Name: Jennifer DiPerna v. The Chicago School of Professional Psychology

Case No.: 17-3351

Officials: RIPPLE, MANION, and KANNE, Circuit Judges

Focus: Breach of Contract and Negligence

Jennifer DiPerna was a student pursuing a master’s degree in clinical psychology at The Chicago School of Professional Psychology (TCSPP), a private, non-profit institution. After TCSPP disciplined DiPerna for posting an image to her personal Instagram account that TCSPP considered offensive, DiPerna filed this lawsuit alleging breach of contract and negligence.

The year after DiPerna filed her complaint, one of her professors accused her of plagiarism. A hearing was held before a school committee, and DiPerna was dismissed. She amended her complaint to include claims related to her dismissal. In the proceedings below, DiPerna voluntarily withdrew some of her claims, and the district court granted summary judgment to TCSPP on all the others. DiPerna now challenges the district court’s conclusions. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Nick Pearson, et al. v. Target Corporation, NBTY, Inc., et al.

Case No.: 17-2275

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

Focus: Inequitable Settlements –

Inequitable settlements are an unfortunate recurring bug in our system of class litigation. Federal Rule of Civil Procedure 23(e) is designed to minimize such problems, but appeals by class members who object to a settlement indicate that the system still needs improvement. All too often, class counsel negotiate a settlement with substantial attorneys’ fees but meager benefits for the class. See, e.g., Redman v. RadioShack Corp., 768 F.3d 622, 638–39 (7th Cir. 2014). Named plaintiffs fail to live up to their ethical obligations as fiduciaries to the class. See, e.g., Eubank v. Pella Corp., 753 F.3d 718, 723–24 (7th Cir. 2014). The objector-appellant before us, Theodore Frank, has brought problems like these to our attention before, including in an earlier appeal in this case. See, e.g., Pearson v. NBTY, Inc., 772 F.3d 778 (7th Cir. 2014); In re Subway Footlong Sandwich Mktg. & Sales Practices Litig., 869 F.3d 551 (7th Cir. 2017).

But this appeal is different. It does not concern the class settlement itself, but rather what happened after the district court approved the settlement. Frank characterizes it as “objector blackmail”: an absent class member objects to a settlement with no intention of improving the settlement for the class. Instead, the objector files her objection, appeals, and pockets a side payment in exchange for voluntarily dismissing the appeal. A potential benefit for the class—a better settlement—is leveraged for a purely personal gain—a side bargain. Although Rule 23 may change at the end of this year, if Congress allows some proposed amendments to go into effect, up until now the federal rules have not had any provision targeted at side settlements reached on appeal. Proposed Amendments to the Federal Rules of Civil Procedure, Rules 5, 23, 62, and 65.1, Slip Order at *9–15 (U.S. Apr. 26, 2018), https://www.supremecourt.gov/orders/courtorders/frcv18_5924.pdf.

In this case, three objectors voluntarily dismissed their appeals before appellate briefing began. Frank suspects that they acted in bad faith. He hoped to bring the issue to the district court’s attention, but he was stymied because final judgment had already been entered with prejudice. Frank moved for a limited reopening of the case, but the district court denied that motion. Because the motion should have been granted and Frank allowed to pursue his theory, we reverse.

Reversed and Remanded

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7^th Circuit Court of Appeals

Case Name: Robert M. Kowalski v. Shauna Boliker, et al.

Case No.: 17-1952

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

Focus: Court Error – Abuse of Discretion

Robert Kowalski is dissatisfied with his treatment by judges and sheriff’s personnel during his divorce proceedings. He especially accuses an Illinois judge, Shauna Boliker, of engaging in extrajudicial efforts designed to prejudice the state court against him and in favor of her best friend, Kowalski’s wife. While Kowalski’s allegations are troubling, in the end we conclude that the district court was correct to dismiss his case.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Khalid Khowaja v. Jefferson B. Sessions III

Case No.: 18-1155

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

Focus: Title VII Violation

Khalid Khowaja served as a Special Agent (SA) in the Federal Bureau of Investigation’s Milwaukee field office for nearly a year before his employment was terminated. Khowaja brought this lawsuit under Title VII, alleging that he was discriminated against and terminated from the FBI, and that he was subject to disparate treatment, because he is Muslim. The district court granted summary judgment in favor of the Attorney General, and we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Orchard Hill Building Company, et al. v. United States Army Corps of Engineers

Case No.: 17-3403

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

Focus: Environmental Law – Clean Air Act

This case concerns just shy of 13 acres of wetlands, which lie in a south‐suburban plot of land called the Warmke parcel. Orchard Hill Building Company purchased the Warmke parcel in 1995 with plans for a large‐scale residential development. Not wanting to run afoul of the Clean Water Act, Orchard Hill requested a determination from the United States Army Corps of Engineers that the wetlands (or the “Warmke wetlands”) were not jurisdictional “waters of the United States.” The Corps decided that they were, and Orchard Hill has spent the last 12 years challenging that decision. We find that the Corps has not provided substantial evidence of a significant nexus to navigable‐in‐fact waters, and therefore vacate and remand with instructions that the Corps reconsider its determination.

Vacated and Remanded

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7^th Circuit Court of Appeals

Case Name: Randy McCaa

Case No.: 16-4209

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

Focus: Court Error – Abuse of Discretion

Randy McCaa filed a pro se complaint in 2016, alleging that prison officials at the Green Bay Correctional Institution deliberately disregarded his risk of suicide, causing him to suffer serious physical injuries on four different occasions. Over the course of the litigation below, McCaa filed four motions asking the district court to recruit counsel for him. The district court denied all four and ultimately granted summary judgment to the defendants‐appellees.

When denying McCaa’s third motion to recruit counsel, however, the district court did not specifically address circumstances that bore on McCaa’s ability to competently litigate his own case. This was an abuse of discretion that prejudiced McCaa. Accordingly, we vacate the district court’s judgment and remand McCaa’s case for further proceedings.

Vacated and Remanded

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7^th Circuit Court of Appeals

Case Name: United States of America v. Carl Moose

Case No.: 16-3536

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

Focus: Sentencing Guidelines

Without a plea agreement, defendant Carl Moose pleaded guilty to defrauding investors in violation of the federal wire fraud statute, 18 U.S.C. § 1343. The district court gave him a below-guideline sentence of two years in prison and an additional two years of supervised release. Moose has appealed, challenging both his prison sentence and the length and several specific conditions of his supervised release. We affirm the prison sentence and the length of the supervised release term, but remand for the limited purpose of considering several conditions of supervised release. We address in turn Moose’s challenges to: (1) the loss amount the district court used in calculating his guideline sentencing range; (2) the fraud guideline’s treatment of loss amounts more generally; and (3) the supervised release portion of Moose’s sentence, including the duration and conditions of the supervised release sentence.

Though a judge “need not give a speech about each condition, … sentencing judges rarely, if ever, should list a multitude of conditions without discussion.” Kappes, 782 F.3d at 846. The needs for these challenged conditions were not so obvious here that explanation was unnecessary in overruling objections. The defendant, through his attorney, expressed reasonable concerns about several of the conditions imposed on him through supervised release. The sentencing judge rejected these arguments without explanation. In doing so, the sentencing judge failed to exercise properly his discretion in imposing a supervised release sentence. Because of this failure, we VACATE the challenged conditions of supervised release and REMAND for the limited purpose of addressing those conditions of supervised release. The 24-month prison sentence and 24-month supervised release terms, however, are AFFIRMED.

Vacated and Remanded in part. Affirmed in part.

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7^th Circuit Court of Appeals

Case Name: Jam Productions, LTD., et al. v. National Labor Relations Board, et al.

Case No.: 17-2042; 17-2111

Officials: KANNE and ROVNER, Circuit Judges, and DURKIN, District Judge.

Focus: NLRB – Enforcement of Order

The National Labor Relations Board (“the Board”) seeks to enforce its order requiring Jam Productions, Ltd., Event Productions, Inc., Standing Room Only, Inc., and Victoria Operating Co. (collectively “Jam Productions” or “Jam”) to bargain with the Theatrical Stage Employees Union Local No. 2, (“Local No. 2”). Jam argues that in the period before the election to determine whether Local No. 2 would represent Jam employees, the union attempted to influence the election outcome by steering premium union jobs to Jam employees. We have jurisdiction to review the Board’s application for enforcement pursuant to 29 U.S.C. § 160(e). Because Jam presented enough evidence to warrant a hearing on the validity of the election results, we deny enforcement and remand for an evidentiary hearing.

For the foregoing reasons, we GRANT Jam Productions’ petition for review and REMAND for a hearing on its election objection, and DENY the Board’s cross-application for enforcement.

Granted in part. Remanded in part. Denied in part.

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7^th Circuit Court of Appeals

Case Name: Chicago Joe’s Tea Room, LLC, et al. v. Village of Broadview, et al.

Case No.: 16-1989

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

Focus: Injunctive Relief

For the last eleven years, the parties to this appeal have litigated a land contract that never closed and a strip club that never opened. Yet this appeal is still an interlocutory one. We conclude that the claim for injunctive relief that gives us appellate jurisdiction is actually moot, and we affirm its dismissal. Along the way to that conclusion, we address a tangled record of transactions that seem designed to conceal the real parties in interest and their substantive deals, and we decide issues of appellate jurisdiction, standing, and the law of the case.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Isaac W. Capps v. Kevin Drake, et al.

Case No.: 17-1876

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

Focus: Judgment Award – Attorney’s Fees

Generally, the prevailing party in a civil rights lawsuit is entitled to an award of attorney’s fees. 42 U.S.C. § 1988(b). It is reasonable, however, for the court to award no fees to the prevailing party if the party received only a technical, nominal, or de minimis damage award. In this case, Isaac Capps was awarded substantial damages and thus should have been awarded attorney’s fees. The judgment of the district court is reversed, and this case is remanded for a determination of the amount to be awarded.

Reversed and Remanded

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Anthony DeWayne Compton, Jr.

Case No.: 2015AP1665-CR

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

Focus: Brady Violation

Anthony Compton, Jr., pro se, appeals from his judgment of conviction, entered upon a jury’s verdict, for repeated sexual assault of a child—three or more assaults against the same child. He also appeals an order of the trial court denying his motion for postconviction relief.

Compton raises six issues on appeal: (1) that he was not properly informed of the charge against him; (2) that the record—specifically, transcripts from the proceedings—contain “[n]umerous errors and omissions”; (3) that his arrest was unlawful and the custodial statement he made was inadmissible; (4) that the State committed a Brady violation and other discovery violations; (5) that the trial court relied on inaccurate information at sentencing; and (6) that his trial counsel was ineffective because he failed to provide Compton with his trial level case file for appellate review. We affirm

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Ronald Lee Gilbert

Case No.: 2016AP1852-CR

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

Focus: Ineffective Assistance of Counsel

Ronald Lee Gilbert appeals from the judgment of conviction, following a jury trial, for trafficking of a child, second-degree sexual assault of a child, and intentional child abuse. He also appeals the denial of his postconviction motions.

On appeal, Gilbert contends that trial counsel provided ineffective assistance because trial counsel (1) did not challenge cellular phone data presented as impeachment evidence by the State; (2) did not obtain critical discovery before trial regarding the cellular phone data; (3) did not impeach witnesses with their prior inconsistent statements; (4) did not strike a biased juror; and (5) made improper comments during closing argument. Gilbert maintains that he was prejudiced by each of the five deficiencies and by their cumulative effect. He asserts that the postconviction court should have reversed his conviction or, at a minimum, conducted an evidentiary hearing.

We conclude that, with the exception of the failure to strike the juror, Gilbert has alleged sufficient facts to warrant an evidentiary hearing and, therefore, we affirm the order in part, reverse the order in part, and remand this matter for a Machner hearing.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Stephen R. Jones

Case No.: 2017AP119-CR

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

Focus: Ineffective Assistance of Counsel

Stephen Jones challenges his conviction for stalking, contrary to WIS. STAT. § 940.32(2) (2015-16). Jones argues he is entitled to a new trial because he was improperly charged with “Stalking – Previous Violent Crime Conviction Against Same Victim, Repeater, Domestic Abuse Repeater.” Jones claims improper evidence was admitted at trial and the jury was also improperly instructed. Jones further asserts ineffective assistance of counsel. We reject Jones’ arguments and affirm.

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WI Court of Appeals – District III

Case Name: Dow Family, LLC, et al. v. Sawyer County Abstract & Title Co., Inc., et al.

Case No.: 2017AP993

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

Focus: Insurance Claim – Malpractice

Dow Family, LLC (“Dow Family”), appeals a summary judgment entered in favor of CNA Insurance Company (“CNA”) and William Sullivan (“Sullivan”). In 2009, Dow Family’s principal, C. Thomas Dow (“Dow”), purchased certain real estate, commercial interests, and other property from Sullivan.1 Dow Family later discovered an unsatisfied mortgage on one of the condominium units Dow had purchased. It incurred expenses in litigating and ultimately settling a subsequent foreclosure action regarding that

mortgage. Dow Family contends its claim for legal malpractice against CNA’s insured, and its various claims against Sullivan, were improperly dismissed by the circuit court based on the court’s conclusion that Dow Family had failed to submit evidence creating a triable issue as to its damages.

We reject Dow Family’s arguments and affirm. First, we conclude the proper measure of damages in a legal malpractice lawsuit such as this one requires us to compare the former client’s position now against the position the client would have been in but for the alleged negligence. Dow Family avers Dow would not have entered into the purchase transaction had he known of the existence of the unsatisfied mortgage. Thus, for purposes of proving damages, Dow Family must submit some evidence that the assets it acquired in the transaction are worth less than the total amount it spent to obtain those assets—in other words, that it is in a worse position than it would have been had it walked away from the transaction.

Based on our review of the record and the parties’ arguments, we conclude Dow Family has failed to present sufficient evidence on this point. Contrary to Dow Family’s arguments, the circuit court properly determined the transaction was not an arm’s-length deal. As a result, the purchase price of the property interests Dow Family acquired does not establish their fair market values. Dow Family has failed to put in other evidence of value at the time of purchase to rebut CNA’s submissions showing that the value of the assets Dow Family acquired exceeds the total amount it spent to procure those assets, including the amount spent in connection with satisfying the remaining mortgage. Consequently, there is no issue to try in that regard.

We also reject Dow Family’s arguments seeking to reverse the grant of summary judgment in Sullivan’s favor. Although Sullivan has not filed a response brief in this appeal, Dow Family’s briefing on this point is insufficient because it does not reflect any legal reasoning and the arguments are supported only by general statements without citation to legal authority. We affirm the circuit court in all respects.

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WI Court of Appeals – District I 

Case Name: State of Wisconsin v. Delano Maurice Wade

Case No.: 2017AP1021-CR

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

Focus: Ineffective Assistance of Counsel

Delano Maurice Wade appeals from a judgment of conviction, following a jury trial, for second-degree sexual assault and false imprisonment, both with domestic abuse enhancers. On appeal, Wade argues that the trial court erred in overruling trial counsel’s hearsay objections to a police officer’s testimony describing what the victim, A.C., told her about the incident and A.C.’s statements recorded in a “domestic violence supplement,” and erred in discussing a jury question with trial counsel while Wade was not present.

The State argues that Wade forfeited his hearsay arguments and also forfeited his claim that he had a right to be present when the trial court discussed the question from the jury. The State further argues that any alleged errors were harmless. We agree with the State and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Lamonte W. Moore

Case No.: 2017AP1120-CR

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

Focus: Jury Instructions

A jury convicted Lamonte W. Moore of felony murder. See WIS. STAT. § 940.03 (2013-14). Moore appeals from the judgment of conviction and from the order denying his postconviction motion. Moore maintains that he is entitled to a new trial based on the trial court’s failure to provide the jury with an instruction on accomplice testimony and trial counsel’s ineffective assistance for failing to request the instruction. See WIS JI—CRIMINAL 245. We disagree and affirm.

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WI Court of Appeals – District III

Case Name: Marathon County v. P.X.,

Case No.: 2017AP1497

Officials: STARK, P.J.

Focus: Prisoner Involuntary Commitment

P.X. appeals an order extending his involuntary commitment pursuant to WIS. STAT. ch. 51. We reject his argument that he was capable of “rehabilitation” and thus not a proper subject for treatment. Accordingly, we affirm the commitment order.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Dion Lashay Byrd

Case No.: 2017AP1968-CR

Officials: Brennan, Brash and Dugan, JJ.

Focus: Sentencing Guidelines

Dion Lashay Byrd appeals from his judgment of conviction, entered on a jury’s verdict, for making a bomb threat, contrary to WIS. STAT. § 947.015 (2013-14). He also appeals the trial court’s order denying his postconviction motion for resentencing. Byrd asserts that the trial court based his sentence on improper factors: (1) a violation of Byrd’s constitutional right against self-incrimination that occurred during an exchange between Byrd and the court when Byrd exercised his right of allocution; and (2) the trial court’s disagreement with the statutory maximum penalty for this crime that was expressed during the sentencing hearings. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Alonso Corral

Case No.: 2017AP321-CR

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

Focus: Sufficiency of Evidence

Alonso Corral appeals from a judgment of conviction and an order denying his motion for a new trial. He contends that the circuit court improperly admitted evidence against him. He further contends that his trial counsel was ineffective. Finally, he contends that he is entitled to a new trial in the interest of justice. The State, meanwhile, cross-appeals from an order granting Corral’s motion for sentence modification.  For the reasons that follow, we affirm in part, reverse in part, and remand with directions.

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WI Court of Appeals – District I

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

Case No.: 2017AP1252-CR

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

Focus: Ineffective Assistance of Counsel

Michael Lion Dixon appeals from a judgment, entered after a jury trial, convicting him of two counts of second-degree sexual assault of a child for having sexual intercourse with thirteen-year-old S.O. and fourteen-year-old D.D. He asserts various claims of ineffective assistance of defense counsel. We conclude that Dixon is neither entitled to a new trial on that ground, as he has not proved that he was prejudiced by any of the deficiencies of which he complains, nor in the interest of justice. We also conclude the trial court did not err in denying his motion for postconviction relief without a hearing. We affirm the judgment and order.

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WI Court of Appeals – District II

Case Name: Susan L.J. Bemis v. Robert Melzer

Case No.: 2017AP1828

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

Focus: Breach of

Susan L.J. Bemis appeals from an order denying her “Petition for Enforcement of Settlement Agreement and Remedy of Breach,” by which she sought specific performance of “Paragraph 14” of the settlement agreement between her and Robert Melzer, as well as her costs and attorneys’ fees incurred in seeking relief. The circuit court denied Susan’s request for specific performance, based on equitable considerations and on its finding that Melzer had not substantially breached his obligations or acted in bad faith and, consequently, concluded she was not entitled to attorneys’ fees or costs. We affirm.

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WI Court of Appeals – District II

Case Name: Village of Richfield v. Carla M. Whitcomb

Case No.: 2017AP2524

Officials: GUNDRUM, J.

Focus: Motion to Vacate Judgment Denied

Carla M. Whitcomb appeals the circuit court’s denial of her “Motion to Vacate and Void Default Judgment.” We affirm.

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WI Court of Appeals – District IV

Case Name: Ocwen Loan Servicing, LLC. v. Cassandra L. Butcher, et al.

Case No.: 2016AP2146

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

Focus: Foreclosure – Court Error

This is a foreclosure action initiated against Cassandra and Darrel Butcher by Ocwen Loan Servicing, LCC, the servicer of a loan on behalf of Deutsche Bank. The Dane County Circuit Court denied Butchers’ motion to dismiss and later granted summary judgment in favor of Ocwen. Butchers appeal, arguing that the circuit court erred: (1) in denying their motion to dismiss because claim preclusion bars the present case; (2) in granting summary judgment because the complaint did not state a claim for relief; and (3) in granting summary judgment because Ocwen failed to show that there is no genuine issue of material fact that it is in possession of the original note.

We reject Butchers’ argument related to the motion to dismiss. A previous foreclosure action against the Butchers was dismissed “without prejudice.” The previous dismissal does not carry preclusive effect which bars the present foreclosure claim. Therefore, we affirm the circuit court’s denial of the motion to dismiss.

Regarding Butchers’ contentions about summary judgment, the allegations of the complaint demonstrate that Ocwen has stated a claim upon which relief may be granted. However, there is a genuine issue of material fact regarding whether Ocwen or Deutsche Bank possesses the original note. Therefore, we affirm in part and reverse in part the circuit court’s grant of summary judgment.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Davonte Love

Case No.: 2017AP971-CR; 2017AP972-CR

Officials: Sherman, Blanchard, and Kloppenburg, JJ.

Focus: Postconviction Motion Denied

Davonte Love appeals judgments of conviction and an order denying his motion for postconviction relief. We affirm.

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WI Court of Appeals – District IV

Case Name: Jackson County v. C.S.W.

Case No.: 2017AP1994

Officials: Blanchard, Kloppenburg and Fitzpatrick, JJ

Focus: Guardianship and Protective Placement

C.S.W. (who we will refer to as “Mr. W.”) appeals orders of the Jackson County Circuit Court that granted guardianships of the person and estate and a protective placement as requested by Jackson County. Mr. W. contends that the circuit court erred because the County failed to prove each of the elements required for the guardianships and the protective placement. We disagree and affirm the orders of the circuit court.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Tetra Tech EC, Inc., et al. v. Wisconsin Department of Revenue

Case No.: 2018 WI 75

Focus: Statutory Interpretation

The Wisconsin Department of Revenue (the “Department”) imposed a tax on the petitioners pursuant to Wis. Stat. § 77.52(2)(a)11. (2007-08) for the “processing” of river sediments into waste sludge, reusable sand, and water. The petitioners say the statutory term “processing” is not expansive enough to cover the separation of river sediment into its component parts, and so they asked us to reject the Department’s interpretation of that term.

Because resolving this question implicates the authoritativeness of an administrative agency’s interpretation and application of a statute, we asked the parties to also address this issue: “Does the practice of deferring to agency interpretations of statutes comport with Article VII, Section 2 of the Wisconsin Constitution, which vests the judicial power in the unified court system?”

We conclude that the term “processing” in Wis. Stat. § 77.52(2)(a)11. includes the separation of river sediment into its component parts. Therefore, we affirm the court of appeals. We have also decided to end our practice of deferring to administrative agencies’ conclusions of law. However, pursuant to Wis. Stat. § 227.57(10), we will give “due weight” to the experience, technical competence, and specialized knowledge of an administrative agency as we consider its arguments.

Affirmed

Concur: A.W. BRADLEY, J., concurs, joined by ABRAHAMSON, J. (opinion filed). ZIEGLER, J., concurs. ROGGENSACK, C.J., joins Part I (opinion filed). GABLEMAN, J., concurs, joined by ROGGENSACK, C.J. (opinion filed).

Dissent:

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WI Supreme Court

Case Name: Wisconsin Bell, Inc., et al. v. Labor and Industry Review Commission, et al.

Case No.: 2018 WI 76

Focus: Employment Discrimination

Charles E. Carlson says Wisconsin Bell, Inc. intentionally discriminated against him when it terminated his employment because of his disability. Using the “inference method” of finding discriminatory intent, LIRC agreed and concluded that Wisconsin Bell violated the Wisconsin Fair Employment Act (“WFEA”). See Wis. Stat. ch. 111, subchapter II (2015-16).

We granted Wisconsin Bell’s petition for review to determine whether LIRC’s version of the “inference method” impermissibly allows imposition of WFEA liability without proof of discriminatory intent, and if so, whether that is consistent with the requirements of Wis. Stat. § 111.322(1). Because resolving that issue implicates the authoritativeness of an administrative agency’s interpretation and application of a statute, we asked the parties to also address this issue: “Does the practice of deferring to agency interpretations of statutes comport with Article VII, Section 2 of the Wisconsin Constitution, which vests the judicial power in the unified court system?”

We conclude that LIRC’s version of the “inference method” is inconsistent with Wis. Stat. § 111.322(1) because it excuses the employee from his burden of proving discriminatory intent. We also conclude that the record lacks any substantial evidence that Wisconsin Bell terminated Mr. Carlson’s employment because of his disability.

We heard arguments in this case on the same day we heard Tetra Tech EC, Inc. v. DOR, 2018 WI 75, ___ Wis. 2d ___, ___ N.W.2d ___. There, we decided to end our practice of deferring to administrative agencies’ conclusions of law. Id., However, we also said that, pursuant to Wis. Stat. § 227.57(10), we will give “due weight” to an administrative agency’s experience, technical competence, and specialized knowledge as we consider its arguments. Tetra Tech EC, Inc., ___ Wis. 2d ___, ¶3. Our Tetra Tech EC, Inc. opinion contains our analysis of the issue, which we incorporate and apply here.

Reversed

Concur:

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

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WI Supreme Court

Case Name: Wisconsin Department of Workforce Development v. Wisconsin Labor and Industry Review Commission

Case No.: 2018 WI 77

Focus: Unemployment Compensation Benefits

Valerie Beres was denied unemployment compensation benefits on the ground that she was terminated for engaging in “misconduct” as an employee, namely absenteeism, as defined by Wis. Stat. § 108.04(5)(e) (2015-16). The statute sets forth the circumstances in which absenteeism will constitute “misconduct” barring unemployment compensation benefits.

The Ozaukee County Circuit Court, Sandy A. Williams, Judge, adopted the position of the Department of Workforce Development that the plain language of Wis. Stat. § 108.04(5)(e) allows an employer to adopt its own rules regarding employee absenteeism; that the employer’s absenteeism rules need not be consistent with the statute’s definition of “misconduct” based on absenteeism; and that an employee’s violation of the employer’s absenteeism rules constitutes “misconduct” under § 108.04(5)(e) barring unemployment compensation benefits.

In contrast, the court of appeals concluded that an employee who is terminated for violating an employer’s absenteeism rules is not barred from obtaining unemployment compensation benefits unless the employee’s conduct violates the statutory definition of “misconduct” based on absenteeism.3 The court of appeals also concluded that an employee cannot be denied unemployment compensation benefits for violating an employer’s absenteeism policy that is “stricter” than the absenteeism policy set forth in the statute.

The single issue presented to the court is as follows: Does Wis. Stat. § 108.04(5)(e) allow an employer to adopt an attendance or absenteeism policy that differs from that set forth in § 108.04(5)(e) such that termination of an employee for violating the employer’s policy results in disqualification for unemployment compensation benefits even if the employer’s policy is more restrictive on the employee?

We conclude that the plain language of Wis. Stat. § 108.04(5)(e) allows an employer to adopt its own absenteeism policy that differs from the policy set forth in § 108.04(5)(e), and that termination for the violation of the employer’s absenteeism policy will result in disqualification from receiving unemployment compensation benefits even if the employer’s policy is more restrictive than the absenteeism policy set forth in the statute. Beres was terminated for not complying with her employer’s absenteeism policy. Accordingly, we conclude that Beres was properly denied benefits.

Reversed

Concur:

Dissent:

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WI Supreme Court

Case Name: Ascaris Mayo, et al. v. Wisconsin Injured Patients and Families

Case No.: 2018 WI 78

Focus: Noneconomic Damages – Medical Malpractice

Our review considers whether the legislatively-enacted cap of $750,000 (the cap) on noneconomic damages for victims of medical malpractice that is set out in Wis. Stat. § 893.55 (2015-16) is unconstitutional facially or as applied, based on equal protection and due process grounds. In reliance on Ferdon ex rel. Petrucelli v. Wis. Patients Comp. Fund, 2005 WI 125, 284 Wis. 2d 573, 701 N.W.2d 440, the court of appeals concluded that the cap was facially unconstitutional. The court of appeals did not address whether § 893.55 was unconstitutional as applied to Ascaris and Antonio Mayo (the Mayos). However, the circuit court had concluded that the $750,000 cap on noneconomic damages was unconstitutional as applied to the Mayos.

We conclude that rational basis is the proper standard by which to judge the constitutionality of Wis. Stat. § 893.55; that § 893.55 is facially constitutional and constitutional as applied to the Mayos; and that Ferdon erroneously invaded the province of the legislature and applied an erroneous standard of review. Accordingly, we reverse the court of appeals’ decision, overrule Ferdon, and conclude that the $750,000 cap on noneconomic damages in medical malpractice judgments and settlements is constitutional both facially and as applied to the Mayos.

Therefore, we reverse the court of appeals and remand to the circuit court to impose the $750,000 cap on noneconomic damages.

Reversed and Remanded

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

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

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WI Supreme Court

Case Name: E. Glen Porter, III, et al. v. State of Wisconsin, et al.

Case No.: 2018 WI 79

Focus: Equal Protection Violation

This is a review of a published decision of the court of appeals affirming a judgment of the Circuit Court for Waukesha County, Patrick C. Haughney, Judge. The plaintiffs-appellants-petitioners, E. Glenn Porter, III, and Highland Memorial Park, Inc., challenge the constitutionality of two statutes: Wis. Stat. §§ 157.067(2) and 445.12(6) (2015-16). The parties refer to these two statutes as the “anti-combination laws.” Generally, these laws prohibit the joint ownership or operation of a cemetery and a funeral home. Porter argues that the anti-combination laws violate his rights to equal protection and substantive due process under the Wisconsin and United States constitutions.

In the circuit court, the State moved for summary judgment. It argued that rational basis scrutiny applied to Porter’s claims because he had not alleged the creation of a suspect class or the violation of a fundamental right. See Aicher ex rel. LaBarge v. Wis. Patients Comp. Fund, 2000 WI 98, ¶56, 237 Wis. 2d 99, 613 N.W.2d 849. The State asserted that the anti-combination laws survived rational basis review because they were rationally related to three legitimate government interests: (1) preserving competition in the death care services industry; (2) protecting consumers from higher prices and poor services; and (3) reducing the potential for abuses from commingling of cemetery and funeral revenues.

The circuit court granted the State’s motion for summary judgment. It concluded that the anti-combination laws are constitutional because they are rationally related to a number of legitimate government interests, namely “preserving competition, avoiding commingling of funds, preserving consumer choices, avoiding higher prices, fostering personal service, [and] avoiding undue pressure on consumers . . . .” The circuit court explained that it was “satisfied . . . that if there are arguments over whether some of this works or some of that doesn’t work, it stands as proof then that there is a basis for the law . . . .”

Porter appealed. The parties disagreed on the proper scope of rational basis review and whether the anti-combination laws have a rational basis. The court of appeals held that regardless of the scope of rational basis review employed, the anti-combination laws were not unconstitutional on either equal protection or substantive due process grounds. The court of appeals explained that the anti-combination laws were rationally related to the legitimate government interests of protecting consumers and limiting the possibility for abuse of trusting requirements.

Applying the standard set forth in Mayo v. Wisconsin Injured Patients & Families Compensation Fund, 2018 WI 78, ___ Wis. 2d ___, ___ N.W.2d ___, we conclude that the anti-combination statutes do not violate the equal protection or due process clauses of the Wisconsin and United States constitutions. The anti-combination statutes are rationally related to the legitimate government interests of protecting the welfare of particularly vulnerable consumers and limiting or minimizing the manipulation of funds required to be held in trust by funeral directors and cemetery operators. Accordingly, we affirm the decision of the court of appeals.

Affirmed

Concur:

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

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WI Supreme Court

Case Name: Kristi Koschkee, et al. v. Tony Evers, et al.

Case No.: 2018 WI 82

Focus: Substitution of Counsel

This original action is before the court for the determination of preliminary motions related to two issues: (1) whether the respondents in this action, Superintendent of Public Instruction Tony Evers and the Department of Public Instruction, are entitled to counsel of their choice or whether they must be represented by the Department of Justice; and (2) whether Governor Scott Walker is a necessary party to this action.

We conclude that Evers and the Department of Public Instruction are entitled to counsel of their choice and are not required to be represented by the Department of Justice. Further, we conclude that the governor is not a necessary party to this action. Accordingly, we grant Evers’ and the Department of Public Instruction’s motion to deny substitution of counsel and to disqualify the attorney general from appearing on behalf of respondents and deny the Department of Justice’s cross-motion to strike the appearance by attorneys Ryan Nilsestuen and Benjamin R. Jones. We further decline to order that the governor be joined as a necessary party.

Granted

Concur: R.G. BRADLEY, J. (concurs in part) (dissents in part), joined by KELLY, J., GABLEMAN, J.,

Dissent: R.G. BRADLEY, J. (concurs in part) (dissents in part), joined by KELLY, J., GABLEMAN, J.,

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WI Supreme Court

Case Name: State of Wisconsin v. Kyle Lee Monahan

Case No.: 2018 WI 80

Focus: Court Error – Exclusion of Evidence

This is a review of an unpublished, authored decision of the court of appeals affirming the Lafayette County Circuit Court’s judgment of conviction against Kyle Lee Monahan. State v. Monahan, No. 2014AP2187-CR, unpublished slip op. (Wis. Ct. App. Apr. 27, 2017). Monahan raises a single issue for our review: was the erroneous exclusion of data from a portable GPS unit harmless?

We hold that the circuit court’s erroneous exclusion of the GPS data was harmless, and therefore affirm the decision of the court of appeals.

Affirmed

Concur:

Dissent: R.G. BRADLEY, J., dissents, joined by ABRAHAMSON, J., and A.W. BRADLEY, J. (opinion filed).

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WI Supreme Court

Case Name: Cintas Corporation No. 2, et al. v. Becker Property Services LLC

Case No.: 2018 WI 81

Focus: Indemnification – Statutory Intepretation

Becker Property Services LLC (“Becker”) and Cintas Corporation No. 2 (“Cintas”) executed a contract containing indemnification and choice-of-law provisions. A dispute arose over whether the contract entitles Cintas to indemnification for damages caused by its own negligence. To answer that question, we must also resolve a threshold dispute: As between Wisconsin and Ohio, which law provides the rule of decision?

We hold that Ohio’s law governs the parties’ contract, and that Becker must defend and indemnify Cintas, even for damages caused by its own negligence. Consequently, we affirm the court of appeals, but (as we discuss below) on other grounds.

Affirmed

Concur:

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

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Supreme Court Digests

United States Supreme Court

Case Name: Ohio, et al. v. American Express Co., et al.

Case No.: 16-1454

Focus: Antitrust Violation

American Express Company and American Express Travel Related Services Company (collectively, Amex) provide credit-card services to both merchants and cardholders. When a cardholder buys something from a merchant who accepts Amex credit cards, Amex processes the transaction through its network, promptly pays the merchant, and subtracts a fee. If a merchant wants to accept Amex credit cards—and attract Amex cardholders to its business—Amex requires the merchant to agree to an antisteering contractual provision. The antisteering provision prohibits merchants from discouraging customers from using their Amex card after they have already entered the store and are about to buy something, thereby avoiding Amex’s fee. In this case, we must decide whether Amex’s antisteering provisions violate federal antitrust law. We conclude they do not.

Affirmed

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: Abbott, Governor of Texas, et al. v. Perez, et al.

Case No.: 17-586

Focus: Court Error – Congressional and State Legislative Districts

Before us for review are orders of a three-judge court in the Western District of Texas effectively directing the State not to conduct this year’s elections using districting plans that the court itself adopted some years earlier. The court developed those plans for use in the 2012 elections pursuant to our directions in Perry v. Perez, 565 U. S. 388 (2012) (per curiam). We instructed the three-judge court to start with the plans adopted by the Texas Legislature in 2011 but to make adjustments as required by the Constitution and the Voting Rights Act. Id., at 392–396. After those plans were used in 2012, the Texas Legislature enacted them (with only minor modifications) in 2013, and the plans were used again in both 2014 and 2016.

Last year, however, the three-judge court reversed its prior analysis and held that some of the districts in those plans are unlawful. After reviewing the repealed 2011 plans, which had never been used, the court found that they were tainted by discriminatory intent and that the 2013 Legislature had not “cured” that “taint.”

We now hold that the three-judge court committed a fundamental legal error. It was the challengers’ burden to show that the 2013 Legislature acted with discriminatory intent when it enacted plans that the court itself had produced. The 2013 Legislature was not obligated to show that it had “cured” the unlawful intent that the court attributed to the 2011 Legislature. Thus, the essential pillar of the three-judge court’s reasoning was critically flawed.

When the congressional and state legislative districts are reviewed under the proper legal standards, all but one of them, we conclude, are lawful.

Reversed and Remanded in part. Affirmed in part.

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

Concurring: THOMAS, J., filed a concurring opinion, in which GORSUCH, J., joined.

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United States Supreme Court

Case Name: Trump, et al. v. Hawaii, et al.

Case No.: 17-965

Focus: Immigration – President Authority To Act – Establishment Clause

Under the Immigration and Nationality Act, foreign nationals seeking entry into the United States undergo a vetting process to ensure that they satisfy the numerous requirements for admission. The Act also vests the President with authority to restrict the entry of aliens whenever he finds that their entry “would be detrimental to the interests of the United States.” 8 U. S. C. §1182(f). Relying on that delegation, the President concluded that it was necessary to impose entry restrictions on nationals of countries that do not share adequate information for an informed entry determination, or that otherwise present national security risks. Presidential Proclamation No. 9645, 82 Fed. Reg. 45161 (2017) (Proclamation). The plaintiffs in this litigation, respondents here, challenged the application of those entry restrictions to certain aliens abroad. We now decide whether the President had authority under the Act to issue the Proclamation, and whether the entry policy violates the Establishment Clause of the First Amendment.

Reversed and Remanded

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

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

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United States Supreme Court

Case Name: National Institute of Family and Life Advocates, et al. v. Becerra, et al.

Case No.: 16-1140

Focus: 1^st Amendment Violation

The California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act) requires clinics that primarily serve pregnant women to provide certain notices. Cal. Health & Safety Code Ann. §123470 et seq. (West 2018). Licensed clinics must notify women that California provides free or low-cost services, including abortions, and give them a phone number to call. Unlicensed clinics must notify women that California has not licensed the clinics to provide medical services. The question in this case is whether these notice requirements violate the First Amendment.

Reversed and Remanded

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

Concurring: KENNEDY, J., filed a concurring opinion, in which ROBERTS, C. J., and ALITO and GORSUCH, JJ., joined.

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United States Supreme Court

Case Name: Florida v. Georgia

Case No.: 142

Focus: Sufficiency of Evidence

This case concerns the proper apportionment of the water of an interstate river basin. Florida, a downstream State, brought this lawsuit against Georgia, an upstream State, claiming that Georgia has denied it an equitable share of the basin’s waters. We found that the dispute lies within our original jurisdiction, and we appointed a Special Master to take evidence and make recommendations. After lengthy evidentiary proceedings, the Special Master submitted a report in which he recommends that the Court deny Florida’s request for relief on the ground that “Florida has not proven by clear and convincing evidence that its injury can be redressed by an order equitably apportioning the waters of the Basin.” Report of Special Master. The case is before us on Florida’s exceptions to the Special Master’s Report.

In light of our examination of the Report and relevant portions of the record, we remand the case to the Master for further findings and such further proceedings as the Master believes helpful.

Remanded

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

Concurring:

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United States Supreme Court

Case Name: Janus v. American Federation of State, County, and Municipal Employees, et al.

Case No.: 16-1466

Focus: Free Speech Violation

Under Illinois law, public employees are forced to subsidize a union, even if they choose not to join and strongly object to the positions the union takes in collective bargaining and related activities. We conclude that this arrangement violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.

We upheld a similar law in Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977), and we recognize the importance of following precedent unless there are strong reasons for not doing so. But there are very strong reasons in this case. Fundamental free speech rights are at stake. Abood was poorly reasoned. It has led to practical problems and abuse. It is inconsistent with other First Amendment cases and has been undermined by more recent decisions. Developments since Abood was handed down have shed new light on the issue of agency fees, and no reliance interests on the part of public-sector unions are sufficient to justify the perpetuation of the free speech violations that Abood has countenanced for the past 41 years. Abood is therefore overruled.

Reversed and Remanded

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

Concurring:

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United States Supreme Court

Case Name: Mary Ann Sause v. Timothy J. Bauer, et al.

Case No.: 17-742

Focus: 4^th Amendment Violation

Petitioner Mary Ann Sause, proceeding pro se, filed this action under Rev. Stat. 1979, 42 U. S. C. §1983, and named as defendants past and present members of the Louisburg, Kansas, police department, as well as the current mayor and a former mayor of the town. The centerpiece of her complaint was the allegation that two of the town’s police officers visited her apartment in response to a noise complaint, gained admittance to her apartment, and then proceeded to engage in a course of strange and abusive conduct, before citing her for disorderly conduct and interfering with law enforcement. Among other things, she alleged that at one point she knelt and began to pray but one of the officers ordered her to stop. She claimed that a third officer refused to investigate her complaint that she had been assaulted by residents of her apartment complex and had threatened to issue a citation if she reported this to another police department. In addition, she alleged that the police chief failed to follow up on a promise to investigate the officers’ conduct and that the present and former mayors were aware of unlawful conduct by the town’s police officers.

Petitioner’s complaint asserted a violation of her First Amendment right to the free exercise of religion and her Fourth Amendment right to be free of any unreasonable search or seizure. The defendants moved to dismiss the complaint for failure to state a claim on which relief may be granted, arguing that the defendants were entitled to qualified immunity. Petitioner then moved to amend her complaint, but the District Court denied that motion and granted the motion to dismiss.

On appeal, petitioner, now represented by counsel, argued only that her free exercise rights were violated by the two officers who entered her home. The Court of Appeals for the Tenth Circuit affirmed the decision of the District Court, concluding that the officers were entitled to qualified immunity. 859 F. 3d 1270 (2017). Chief Judge Tymkovich filed a concurring opinion. While agreeing with the majority regarding petitioner’s First Amendment claim, he noted that petitioner’s “allegations fit more neatly in the Fourth Amendment context.” Id., at 1279. He also observed that if the allegations in the complaint are true, the conduct of the officers “should be condemned,” and that if the allegations are untrue, petitioner had “done the officers a grave injustice.” Ibid.

In considering the defendants’ motion to dismiss, the District Court was required to interpret the pro se complaint liberally, and when the complaint is read that way, it may be understood to state Fourth Amendment claims that could not properly be dismissed for failure to state a claim. We appreciate that petitioner elected on appeal to raise only a First Amendment argument and not to pursue an independent Fourth Amendment claim, but under the circumstances, the First Amendment claim demanded consideration of the ground on which the officers were present in the apartment and the nature of any legitimate law enforcement interests that might have justified an order to stop praying at the specific time in question. Without considering these matters, neither the free exercise issue nor the officers’ entitlement to qualified immunity can be resolved. Thus, petitioner’s choice to abandon her Fourth Amendment claim on appeal did not obviate the need to address these matters.

For these reasons, we grant the petition for a writ of certiorari; we reverse the judgment of the Tenth Circuit; and we remand the case for further proceedings consistent with this opinion.

Reversed and Remanded

Dissenting:

Concurring:

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United States Supreme Court

Case Name: Michael Sexton v. Nicholas Beaudreaux

Case No.: 17-1106

Focus: Court Error – Habeas Corpus Relief

In this case, the United States Court of Appeals for the Ninth Circuit reversed a denial of federal habeas relief, 28 U. S. C. §2254, on the ground that the state court had unreasonably rejected respondent’s claim of ineffective assistance of counsel. The Court of Appeals’ decision ignored well-established principles. It did not consider reasonable grounds that could have supported the state court’s summary decision, and it analyzed respondent’s arguments without any meaningful deference to the state court. Accordingly, the petition for certiorari is granted, and the judgment of the Court of Appeals is reversed.

Petition Granted. Reversed and Remanded

Dissenting: BREYER, J., filed dissenting opinion,

Concurring:

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United States Supreme Court

Case Name: North Carolina, et al. v. Sandra Little Covington, et al.

Case No.: 17-1364

Focus: Remedial Redistricting Order – Gerrymandering

This appeal arises from a remedial redistricting order entered by the District Court in a racial gerrymandering case we have seen before. The case concerns the redistricting of state legislative districts by the North Carolina General Assembly in 2011, in response to the 2010 census. A group of plaintiff voters, appellees here, alleged that the General Assembly racially gerrymandered their districts when—in an ostensible effort to comply with the requirements of the Voting Rights Act of 1965—it drew 28 State Senate and State House of Representatives districts comprising majorities of black voters. The District Court granted judgment to the plaintiffs, and we summarily affirmed that judgment. See Covington v. North Carolina, 316 F. R. D. 117 (MDNC 2016), summarily aff ’d, 581 U. S. ___ (2017).

At the same time, however, we vacated the District Court’s remedial order, which directed the General Assembly to adopt new districting maps, shortened by one year the terms of the legislators currently serving in the gerrymandered districts, called for special elections in those districts, and suspended two provisions of the North Carolina Constitution. See North Carolina v. Covington, 581 U. S. ___, ___ (2017) (per curiam) (slip op., at 1–2).

The defendants first argue that the District Court lacked jurisdiction even to enter a remedial order in this case. In their view, “[w]here, as here, a lawsuit challenges the validity of a statute,” the case becomes moot “when the statute is repealed.” Juris. Statement 17. Thus, according to the defendants, the plaintiffs’ racial gerrymandering claims ceased to exist when the North Carolina General Assembly enacted remedial plans for the State House and State Senate and repealed the old plans. Second, the defendants argue that the District Court erred when it “conclu[ded] that the General Assembly engaged in racial gerrymandering by declining to consider race.” Juris. Statement 20. They assert that “there is no dispute that the General Assembly did not consider race at all when designing the 2017 [remedial plans]—not as a predominant motive, a secondary motive, or otherwise,” and that such “undisputed fact should have been the end of the plaintiffs’ racial gerrymandering challenges.” Id., at 21–22.

Third, the defendants argue that the District Court abused its discretion by arranging for the Special Master to draw up an alternative remedial map instead of giving the General Assembly—which “stood ready and willing to promptly carry out its sovereign duty”—another chance at a remedial map. Juris. Statement 33. Yet the District Court had its own duty to cure illegally gerrymandered districts through an orderly process in advance of elections. See Purcell v. Gonzalez, 549 U. S. 1, 4–5 (2006) (per curiam). Here the District Court determined that “providing the General Assembly with a second bite at the apple” risked “further draw[ing] out these proceedings and potentially interfer[ing] with the 2018 election cycle.” 283 F. Supp. 3d, at 448, n. 10. We conclude that the District Court’s appointment of a Special Master in this case was not an abuse of discretion.

The District Court’s decision to override the legislature’s remedial map on that basis was clear error. “[S]tate legislatures have primary jurisdiction over legislative reapportionment,” White v. Weiser, 412 U. S. 783, 795 (1973) (internal quotation marks omitted), and a legislature’s “freedom of choice to devise substitutes for an apportionment plan found unconstitutional, either as a whole or in part, should not be restricted beyond the clear commands” of federal law, Burns v. Richardson, 384 U. S. 73, 85 (1966). A district court is “not free . . . to disregard the political program of ” a state legislature on other bases. Upham, 456 U. S., at 43. Once the District Court had ensured that the racial gerrymanders at issue in this case were remedied, its proper role in North Carolina’s legislative districting process was at an end. The order of the District Court is affirmed in part and reversed in part.

Affirmed in part. Reversed in part.

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

Concurring:

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