Weekly Case Digests – December 3 – December 7, 2018

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: United States of America v. Jesse Pennington

Case No.: 18-1375

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

Focus: Sentencing Guidelines

Jesse Pennington pleaded guilty to distributing a Schedule I controlled substance in violation of 21 U.S.C. § 841(a)(1). The district court sentenced her to one year and one day in prison, within the Sentencing Guidelines range of ten to sixteen months in prison. Pennington does not argue that her sentence was substantively unreasonable, but she argues that the district court made procedural errors in sentencing her. She first argues that the district court should not have compared her to one of her co-defendants when determining her sentence because the two were not similarly situated. Next, she argues that the court violated her due process rights by twice relying on inaccurate information at sentencing.

We affirm. The district court’s comparison of Pennington to her co-defendant was not a procedural error. The comparison was reasonable and did not exclude consideration of other factors that 18 U.S.C. § 3553(a) requires courts to consider. We also find that the court did not violate Pennington’s due process rights by relying on inaccurate information. Although the judge made a factual error in explaining the sentence orally, he corrected the error in the written explanation, indicating that the error did not affect the ultimate sentence.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Mycal L. Ashby v. Warrick County School Corporation

Case No.: 18-1371

Officials: RIPPLE, KANNE, and BRENNAN, Circuit Judges.

Focus: Statutory Interpretation – ADA Violation

Mycal Ashby’s son was a member of his elementary school choir for several years. In both 2014 and 2015, the choir agreed to perform a Christmas concert at a local history museum. The museum is located in a historic building and, at the time of both concerts, was not accessible to persons with disabilities. Ms. Ashby, who uses a wheelchair, therefore was unable, in both years, to attend the Christmas concert and to see her son and his schoolmates sing. She consequently brought this action against the Warrick County School Corporation, alleging discrimination under the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act.

The parties filed cross-motions for summary judgment. Focusing on the language of the statute and implementing regulation, the district court concluded that the Christmas concert was not a “service, program, or activity of” the Warrick Schools. Nor was the concert an activity “provided or made available” by the School Corporation. 28 C.F.R. § 35.102. It therefore granted Warrick Schools’ motion for summary judgment. Ms. Ashby appealed.

Because resolution of the appeal turns on the proper interpretation and application of statutory and regulatory language on which we have little precedent, we invited the Department of Justice, the agency charged with the administration of the statute, to submit a brief as amicus curiae. The Department accepted our invitation and submitted a brief. The Government notes that when a public entity offers a program in conjunction with a private entity, the question whether a service, program, or activity is one “of” a public entity is a complicated, fact-based one. The Government’s brief suggests that there is a “spectrum” of possible relationships ranging from a “true joint endeavor” on one end to participation in a wholly private event on the other.3 The Department’s interpretation of its regulations is a reasonable one that offers a loose but practical framework that aids in decision-making.

Upon close examination of the record, it is clear to us that the district court correctly determined that the event in question was not a service, program, or activity provided or made available by the Warrick County School Corporation. Accordingly, its judgment is affirmed.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Jason Correa, et al.

Case No.: 16-2316; 16-2467

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

Focus: 14^th Amendment Violation

Members of a Drug Enforcement Agency task force lawfully found drugs in a traffic stop and seized several garage openers and keys they also found in the car. An agent took the garage openers and drove around downtown Chicago pushing their buttons to look for a suspected stash house. He found the right building when the door of a shared garage opened. The agent then used a seized key fob and mailbox key to enter the building’s locked lobby and pinpoint the target condominium. At the agent’s request, another agent sought and obtained the arrestee’s consent to search the target condo. The search turned up extensive evidence of drug trafficking. As we explain below, the use of the garage door opener was close to the edge but did not violate the Fourth Amendment, at least where it opened a garage shared by many residents of the building. At all other stages of the investigation, the agents also complied with the Fourth Amendment. We affirm the district court’s denial of the defendants’ motion to suppress the evidence of drug trafficking found inside the condominium.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Peter T. Dvorak v. Granite Creek GP Flex Cap I, LLC, et al.

Case No.: 18-1892

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

Focus: Statutory Interpretation – Breach of Fiduciary

A plaintiff may dismiss a federal suit without prejudice to refiling. That privilege may be used only once. “[I]f the plaintiff previously dismissed any federal- or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.” Fed. R. Civ. P. 41(a)(1)(B). Illinois follows the same rule. 735 ILCS 5/13-217.

This appeal arises from a federal-state-federal sequence: the first suit was filed in federal court and dismissed, the second was filed in Illinois court and dismissed, and the third is back in federal court. The district judge deemed the Illinois statute applicable and dismissed the third suit with prejudice. 2017 U.S. Dist. LEXIS 25211 (N.D. Ill. Feb. 23, 2017).

Dvorak contests this decision on the ground that the complaint alleges other, later wrongful acts by Radzik. According to Dvorak, when one person commits multiple wrongs the statute of limitations runs from the last of them. That is so when multiple wrongs cause a cumulative injury. See Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, 345 (2002). See also, e.g., National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002) (distinguishing discrete wrongs, each of which carries its own period of limitations, from acts that become wrongful only cumulatively). But Dvorak does not allege that it took multiple steps by Radzik to add up to one tort or that he suffered cumulative harm from a series of similar acts. Nor does he contend that Radzik always acted in the same capacity. Instead he alleges that in 2008 Radzik preferred his own interests over those of both Dvorak and the partnership, and that in later years, in his capacity as the manager of the partnership’s general partner, Radzik took different steps that led to other partners acquiring Dvorak’s stake. These events are discrete, as are the capacities in which Radzik acted and the harms Dvorak suffered. The legal theories also are discrete: negligence for Radzik’s advice in 2008 and breach of fiduciary duty for those later events in which Radzik was acting on behalf of the general partner. Illinois does not allow allegations of distinct new wrongs to extend, indefinitely, the time to sue on old ones. Belleville Toyota, 199 Ill. 2d at 348–49. The district court properly dismissed this claim.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Dean D. Young

Case No.: 17-3494

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

Focus: Sentencing Guidelines

Defendant‐appellant Dean Young pleaded guilty to one count of wire fraud, 18 U.S.C. § 1343, for defrauding the Veterans Administration (VA) regarding the extent of his service‐related injuries. The district court sentenced Young to 21 months in prison, in the middle of the Sentencing Guideline range calculated based on the loss amount agreed to by the parties and adopted by the court.

Young appeals his sentence, arguing that the district court committed a “plain error” by using the stipulated loss amount of $201,521.41 to calculate both his guideline range and the amount of restitution. We affirm. Young waived any objection to the loss amount. This was not merely a forfeiture—an inadvertent failure to raise an important issue—but rather an intentional waiver that was part of a broad compromise of potentially disputed sentencing issues. We hope this opinion might help illustrate the difference between waiver and forfeiture

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Joshua C. Bolin

Case No.: 18-2208

Officials: FLAUM, EASTERBROOK, and BRENNAN, Circuit Judges.

Focus: Plea & Sentencing – Special Assessment

Defendant-appellant Joshua Bolin pleaded guilty to possessing sexually explicit material involving minors, in violation of 18 U.S.C. § 2252(a)(4)(B). After Bolin signed a plea agreement, the district court sentenced Bolin to 120 months of imprisonment and a supervised release term of 15 years. The district court did not impose a fine, but it ordered Bolin to pay the mandatory special assessment and the additional special assessment under 18 U.S.C. §§ 3013 and 3014. Bolin argues that the district court erred in imposing the $5,000 additional special assessment under § 3014 because he is indigent. The government argues Bolin has waived this claim. We agree, and we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Edmund J. Brixen

Case No.: 18-1636

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

Focus: Motion to Suppress Evidence Denied

An individual with the Snapchat username “Snappyschrader” held himself out to be a thirty one-year-old male and agreed to assist a 14-year-old female in purchasing undergarments. Unbeknownst to him, he was communicating with Detective Baumgarten of the City of Altoona Police Department. After agreeing to meet at a supermarket, law enforcement officers identified “Snappyschrader,” arrested him, and seized his phone. The man they arrested was Edmund Brixen. To illustrate to Brixen that he had been communicating with an undercover detective, Baumgarten sent a message to Brixen’s phone from the undercover Snapchat account and Brixen witnessed the notification appear on his phone screen. Brixen moved to suppress this evidence arguing it constituted an unreasonable search of his cell phone. The district court denied the motion on the grounds that Detective Baumgarten’s actions did not constitute a search under the Fourth Amendment. Brixen timely appealed. For the reasons set forth herein, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Terrence Moore, et al. v. Wells Fargo Bank, N.A.,

Case No.: 18-1564

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

Focus: Statutory Interpretation – RESPA

Plaintiffs Terrence and Dixie Moore sued Wells Fargo Bank as Mr. Moore’s mortgage servicer under the federal Real Estate Settlement Procedures Act and a similar Wisconsin statute. The Moores allege that Wells Fargo failed to respond adequately to a “qualified written request” for information under those laws. The district court granted summary judgment for Wells Fargo, and we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Duprece Jet, et al.

Case No.: 17-2051; 17-2052; 17-2060

Officials: KANNE, SYKES, and ST. EVE, Circuit Judges.

Focus: Sufficiency of Evidence

Two armed men robbed three cash-and-check stores in the Indianapolis area. The heists were not especially sophisticated, but they went viral over the robbers’ 1970s-themed disguises. That attention drew an anonymous tip, which led law enforcement to Duprece Jett and Damion McKissick, as well as a third man, Earl Walker, who officers believed was involved in a planned fourth robbery.

The government charged all three men with conspiracy in violation of the Hobbs Act and attempted bank robbery. A jury convicted them on both counts. Jett, McKissick, and Walker now appeal, citing a host of trial errors they submit require acquittal or a new trial. We see only one such error, with respect to the sufficiency of the evidence on the attempted-robbery count. We reverse and remand with instructions that the district court enter a judgment of acquittal on that count and resentence the defendants. Otherwise, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Raul Plaza-Ramirez v. Jefferson B. Sessions III

Case No.: 14-2828

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

Focus: Immigration – Removal Order

Raul Plaza-Ramirez is a citizen of Mexico. He petitions for judicial review of a Board of Immigration Appeals order denying his application for withholding of removal based on a threat of persecution if he were to return to Mexico. The immigration judge denied relief, finding no nexus between Plaza-Ramirez’s membership in a “particular social group” and the persecution he described. The Board affirmed. We deny the petition because substantial evidence supports the judge’s and the Board’s decisions.

Petition Denied

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7^th Circuit Court of Appeals

Case Name: James R. Bunn v. Federal Deposit Insurance Corporation

Case No.: 18-1907

Officials: FLAUM, EASTERBROOK, and BRENNAN, Circuit Judges.

Focus: FDIC – Benefit Agreement – Golden Parachute Payment

After its appointment as receiver for Valley Bank Illinois (“Valley Bank”), the Federal Deposit Insurance Corporation (“FDIC”) disaffirmed a benefits agreement between Valley Bank and James Bunn, a bank executive. Bunn sued the FDIC to recover a “change of control termination benefit” he claims he is entitled to receive pursuant to this agreement. The district court granted summary judgment to the FDIC because it determined the benefit Bunn seeks is a “golden parachute payment” prohibited by federal law. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Craig Strand v. Curtis Minchuk

Case No.: 18-1514

Officials: KANNE, SCUDDER, and ST. EVE, Circuit Judges.

Focus: Qualified Immunity

We consider whether the district court erred at summary judgment in denying qualified immunity to a police officer who, in the context of an argument and fist fight over parking tickets, shot a semi‐truck driver. The officer fired the shot after the driver stopped fighting, stepped back from the officer, and—with his hands in the air—twice said “I surrender.” The district court concluded that a material question of fact existed as to whether the driver continued to pose a threat at the exact moment the officer fired the shot.

We affirm. We cannot read the facts in the light most favorable to the plaintiff and, on the record as it presently stands, conclude as a matter of law that the officer is entitled to qualified immunity. Doing so would mark a stark departure from clearly established law regarding an officer’s use of deadly force. A trial is necessary to determine the precise timeline and circumstances leading to and surrounding the officer’s deployment of such force.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Luke E. Hardy v. Nancy A. Berryhill

Case No.: 17-3264

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

Focus: ALJ Error – Disability

Luke Hardy challenges the denial of his application for Disability Insurance Benefits based on a degenerative back condition that required two surgeries. He challenges the administrative law judge’s (“ALJ”) residual functional capacity (“RFC”) determination on grounds that the ALJ improperly discredited the opinion of his treating neurosurgeon. We agree that the ALJ failed to support her decision to discount the treating neurosurgeon’s opinion, and we vacate the judgment and remand for further proceedings.

Vacated and Remanded

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: Verneice Bruce v. Robert Bennett

Case No.: 2017AP96

Officials: BRASH, J.

Focus: Replevin

Verneice Bruce, pro se, appeals a judgment of the trial court dismissing her small claims action against Robert Bennett. Bruce had previously been granted a replevin order regarding a vehicle that Bennett had purchased from her, but had not paid for in full. Bruce initiated the current action on the grounds that the vehicle had not been returned to her upon replevin in the same condition as when Bennett purchased the vehicle.

The trial court dismissed the action, finding that Bruce had failed to meet her burden of proof. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Mario A. Harris

Case No.: 2017AP675-CR; 2017AP676-CR

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

Focus: Postconviction Motion Denied

Mario A. Harris appeals the judgments of conviction, following a jury trial, of one count of trafficking a child, one count of soliciting a child for prostitution, two counts of pandering, two counts of solicitation of prostitutes, one count of solicitation of prostitutes as a party to a crime, and two counts of conspiracy to commit pandering. He also appeals from the postconviction order denying his motion for relief. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Akim A. Brown

Case No.: 2017AP1332-CR

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

Focus: Ineffective Assistance of Counsel

Akim A. Brown appeals his judgment of conviction for second-degree sexual assault, pursuant to a jury’s verdict, and an order denying his postconviction motion asserting ineffective assistance of counsel. Specifically, Brown claims that his trial counsel failed to present and develop testimony from Brown that he contends would have demonstrated that the encounter was consensual. Brown further asserts that his trial counsel should have objected to the testimony of the police officer who interviewed the victim on the grounds that it was a prior consistent statement of the victim and was thus inadmissible hearsay. We affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Carrie E. Counhan

Case No.: 2017AP2265-CR

Officials: SEIDL, J.

Focus: Ineffective Assistance of Counsel – Due Process Violation

Carrie Counihan appeals a judgment of conviction entered on her no-contest pleas to five counts of misdemeanor theft. She also appeals an order denying her motion for postconviction relief. She contends she was denied due process at sentencing when the circuit court informed the parties that it had reviewed the sentences of similarly situated defendants in other cases within the county without giving her notice and an opportunity to review those cases. Counihan also claims her trial counsel provided ineffective assistance by failing to object to the court’s consideration of the sentences imposed in the other cases, and by failing to seek an adjournment so that the defense could have time to review those cases prior to sentencing. We reject her arguments and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Donavinn D. Coffee

Case No.: 2017AP2292-CR

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

Focus: Postconviction Motion Denied

Donavinn D. Coffee appeals the judgment of conviction entered on his pleas of guilty to armed robbery, attempted armed robbery, and first-degree recklessly endangering safety, all as a party to the crimes. See WIS. STAT. §§ 943.32(2), 939.32, 941.30(1), 939.05 (2015-16). He also appeals the order denying his postconviction motion. Because Coffee forfeited the claim that he was sentenced based on inaccurate information, we affirm.

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WI Court of Appeals – District III

Case Name: Barbara Engelking, et al. v. Enbridge (U.S.), Inc., et al.

Case No.: 2017AP2450

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

Focus: Abuse of Discretion – Claim Preclusion

Barbara and Jeremy Engelking appeal a judgment dismissing their claims against Enbridge (U.S.), Inc., Enbridge Energy, LP, and Enbridge Pipelines, (Southern Lights), LLC (collectively, Enbridge). The circuit court concluded that some of the Engelkings’ claims were barred by the doctrine of claim preclusion, and it later determined Enbridge was entitled to summary judgment on the Engelkings’ remaining claims.

In summary, we conclude the circuit court did not erroneously exercise its discretion by denying the Engelkings’ request for additional time to conduct discovery on Enbridge’s Line 1 claims. We further conclude Enbridge made a prima facie case for summary judgment on those claims, and, in response, the Engelkings failed to demonstrate the existence of a genuine issue of material fact that would preclude summary judgment. Accordingly, the circuit court properly granted Enbridge summary judgment on the Engelkings’ Line 1 claims. We conclude the court properly dismissed all of the Engelkings’ claims against Enbridge.  We therefore affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Steve L. Trattner

Case No.: 2017AP249

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

Focus: Postconviction Motion Denied

Steve L. Trattner appeals from an order denying his WIS. STAT. § 974.06 (2015-16) postconviction motion without an evidentiary hearing. The circuit court determined that Trattner’s claims were or could have been raised earlier and that Trattner had not shown a sufficient reason for failing to raise them in a prior postconviction motion or appeal. We agree that Trattner’s claims are procedurally barred and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Willie E. Nelson, Jr.

Case No.: 2018AP18-CR

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

Focus: Sufficiency of Evidence

This case involves the sexual assault and trafficking of a child. Willie E. Nelson, Jr., appeals from the amended judgment convicting him of second-degree sexual assault after a four-day jury trial. Nelson contends the trial court erred in allowing the admission of other-acts evidence and excluding any reference to the child victim’s pregnancy. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Emily J. Mays

Case No.: 2018AP571-CR

Officials: GUNDRUM, J.

Focus: Motion to Suppress Evidence Denied

The State of Wisconsin appeals from the circuit court’s grant of Emily Mays’ motion to suppress evidence. Following an officer’s investigatory stop, Mays was arrested and subsequently charged with operating a motor vehicle while intoxicated and operating with a prohibited alcohol concentration, both as second offenses and with a minor child in the vehicle, and operating while revoked. We conclude the court erred in determining that the officer’s suspicion that Mays was operating her vehicle while intoxicated and with her children in the vehicle was not reasonable and thus erred in granting Mays’ suppression motion. We reverse and remand for further proceedings.

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WI Court of Appeals – District IV

Case Name: Jeffrey A. Riggert v. John H. Reed

Case No.: 2017AP2369

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

Focus: Abuse of Discretion – Damages – ERISA

Jeffrey Riggert brought multiple claims against John Reed under the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 (2012) et seq., and under state law. The dispute centered on Riggert’s employment at Innovologie, LLC, a company solely owned and managed by Reed. Riggert alleged that Reed had failed to deposit both Riggert’s and Innovologie’s mandatory retirement contributions into Riggert’s Individual Retirement Account during his employment at Innovologie. After the circuit court decided Riggert’s first motion for summary judgment resolving the claims pleaded in his first amended complaint, the court allowed Riggert to amend the first amended complaint to plead a claim for denial of benefits under ERISA. The court then granted Riggert’s second motion for summary judgment, determining that Reed was individually liable for Riggert’s claim for denial of benefits under ERISA and calculating Riggert’s damages to be $84,494.83. Additionally, the court awarded Riggert attorney fees and expenses in the amount of $57,626.11.

On appeal, Reed argues that the circuit court erred when it: (1) allowed Riggert to amend his first amended complaint to plead a claim for denial of benefits under ERISA after deciding Riggert’s first motion for summary judgment resolving the other claims that Riggert had pleaded; and (2) ruled on Riggert’s second motion for summary judgment that Reed was individually liable for Riggert’s claim. Riggert cross-appeals, arguing that the court selected an incorrect method to calculate damages and that the court misused its discretion in failing to award Riggert the full amount of his request for attorney fees.

We conclude that the circuit court erroneously exercised its discretion in allowing Riggert to amend his first amended complaint because the court did so after it decided Riggert’s first motion for summary judgment resolving the claims pleaded in his first amended complaint and did not apply the legal standard that applies to a post-summary judgment motion to amend. Following Mach v. Allison, 2003 WI App 11, ¶2, 259 Wis. 2d 686, 656 N.W.2d 766 (2002), we reverse the court’s ruling allowing Riggert to amend and remand with directions, to allow the court the opportunity to exercise its discretion while applying the correct legal standard. We retain jurisdiction over both the appeal and the cross-appeal.

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WI Court of Appeals – District IV

Case Name: Adams County Department of Human Services v. S.D.

Case No.: 2018AP466

Officials: LUNDSTEN, P.J.

Focus: Termination of Parental Rights

S.D. appeals the circuit court’s order terminating her parental rights to her child, R.S. S.D.’s parental rights were terminated under a three-month abandonment provision in WIS. STAT. § 48.415(1)(a)2. She argues that the circuit court erred by granting summary judgment against her because she raised genuine issues of material fact, and that the order should be vacated because she did not receive effective assistance of counsel. For the reasons that follow, I affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Jonalle L. Ferraro

Case No.: 2018AP498-CR

Officials: BLANCHARD, J.

Focus: 4^th Amendment Violation

Jonalle Ferraro appeals the circuit court’s denial of multiple motions to suppress evidence and the judgment of conviction for operating a motor vehicle while under the influence of an intoxicant, third offense. Ferraro makes three arguments: (1) that an officer who had identified her as a suspect following a reported hit-and-run accident violated the Fourth Amendment when he pursued her into the garage attached to her residence; (2) once in the garage, the officer seized her by unreasonable use of force; and (3) she made in-custody statements that must be suppressed because she had not been given Miranda warnings. See Miranda v. Arizona, 384 U.S. 436 (1966). I conclude that the circuit court properly denied all three motions and accordingly affirm.

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WI Court of Appeals – District IV

Case Name: Juneau County Department of Human Services v. L.O.O.

Case No.: 2018AP654

Officials: FITZPATRICK, J.

Focus: Termination of Parental Rights

L.O.O. appeals an order of the Juneau County Circuit Court granting summary judgment in the grounds phase of L.O.O.’s termination of parental rights case. L.O.O. argues that he has raised genuine issues of material fact concerning each period of abandonment alleged by petitioner, Juneau County Department of Human Services. Additionally, L.O.O. contends that he received ineffective assistance of counsel. I conclude that there is no genuine issue of material fact as to one of the alleged periods of abandonment. I also conclude that L.O.O. was not prejudiced by his counsel’s performance. Accordingly, I affirm.

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WI Court of Appeals – District IV

Case Name: Monroe County v. B.L.

Case No.: 2018AP694

Officials: BLANCHARD, J.

Focus: Mental Commitment

In this direct appeal of an order for involuntary medication and treatment, B.L. argues that the doctor specializing in psychiatric medicine who initiated B.L.’s emergency detention could not properly also serve as one of the two health professionals specified in WIS. STAT. § 51.20(9)(a)1. to examine B.L. B.L. does not contest that he makes this argument for the first time on appeal. I reject his argument for that reason.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Michael E. Hale

Case No.: 2018AP812

Officials: FITZPATRICK, J.

Focus: OWI – Probable Cause

Michael Hale appeals an order of the circuit court which held that he refused to submit to a chemical test in violation of WIS. STAT. § 343.305(9)(a). Hale challenges whether the officer had probable cause to believe that Hale was operating a motor vehicle while under the influence of an intoxicant and to arrest him for that crime. For the following reasons, I affirm.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Office of Lawyer Regulation

Case No.: 2018 WI 104

Focus: Attorney Disciplinary Proceedings

Attorney Jason C. Gonzalez has appealed a report filed by Referee James C. Boll, Jr., concluding that Attorney Gonzalez committed five counts of professional misconduct and recommending that he be publicly reprimanded. In his appeal, Attorney Gonzalez challenges three of the counts of misconduct found by the referee. Specifically, he challenges the referee’s findings of fact with respect to counts five, seven, and nine of the complaint filed by the Office of Lawyer Regulation (OLR). He also challenges the referee’s conclusion of law with respect to count five. Attorney Gonzalez argues that a private, rather than a public, reprimand is an appropriate sanction. He also asks that the costs of the proceeding be reduced.

Upon careful review of this matter, we uphold all of the referee’s findings of fact and conclusions of law and conclude that a public reprimand is an appropriate sanction for Attorney Gonzalez’s misconduct. In addition, we find it appropriate to follow our usual custom of imposing the full costs of this proceeding, which are $9,733.36 as of April 2, 2018, on Attorney Gonzalez. The OLR does not seek restitution and we do not impose a restitution order.

Affirmed

Concur:

Dissent:

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Supreme Court Digests

United States Supreme Court

Case Name: Mount Lemmon Fire District v. Guido, et al.

Case No.: 17-587

Focus: Statutory Interpretation – ADEA

John Guido and Dennis Rankin filed suit, alleging that the Mount Lemmon Fire District, a political subdivision in Arizona, terminated their employment as firefighters in violation of the Age Discrimination in Employment Act of 1967 (ADEA). The Fire District responded that it was too small to qualify as an “employer” under the ADEA, which provides: “The term ‘employer’ means a person engaged in an industry affecting commerce who has twenty or more employees . . . . The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State . . . .” 29 U. S. C. §630(b).

The question presented: Does the ADEA’s numerosity specification (20 or more employees), applicable to “a person engaged in an industry affecting commerce,” apply as well to state entities (including state political subdivisions)? We hold, in accord with the United States Court of Appeals for the Ninth Circuit, that §630(b)’s two-sentence delineation, and the expression “also means” at the start of the second sentence, combine to establish separate categories: persons engaged in an industry affecting commerce with 20 or more employees; and States or political subdivisions with no attendant numerosity limitation. “[T]wenty or more employees” is confining language, but the confinement is tied to §630(b)’s first sentence, and does not limit the ADEA’s governance of the employment practices of States and political subdivisions thereof.

Affirmed

Dissenting:

Concurring: GINSBURG, J., delivered the opinion of the Court, in which all other Members joined, except KAVANAUGH, J., who took no part in the consideration or decision of the case.

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