Weekly Case Digests – March 11, 2019 – March 15, 2019

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: United States of America v. Derrick Phillips

Case No.: 18-1372

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

Focus: Sentencing – Supervised Released

In this appeal, Derrick Phillips is challenging the district court’s decision to revoke his supervised release. He argues that the drug evidence used against him was the fruit of an unconstitutional search and should have been excluded. Guided by the Supreme Court’s opinion in Pennsylvania Board of Probation and Parole v. Scott, 524 U.S. 357 (1998), which held that the exclusionary rule does not apply to state parole-revocation hearings, the district court ruled that the exclusionary rule was similarly inappropriate for supervised-release-revocation hearings. The court then reviewed the evidence presented by the government and concluded that Phillips’s supervised release should be revoked and that he should be sentenced to 36 months’ imprisonment. Before this court, Phillips contests only the district court’s ruling on the exclusionary rule issue. We affirm.

Affirmed
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7^th Circuit Court of Appeals

Case Name: United States of America v. Blair Cook

Case No.: 18-1343

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

Focus: 2^nd Amendment Violation

A jury convicted Blair Cook of being an unlawful user of a controlled substance (marijuana) in possession of a firearm. See 18 U.S.C. § 922(g)(3). Cook appeals his conviction, contending that the statute underlying his conviction is facially vague, that it improperly limits his Second Amendment right to possess a firearm, and that the district court did not properly instruct the jury as to who constitutes an unlawful user of a controlled substance. We affirm Cook’s conviction.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Trustees of the Suburban Teamsters of Northern Illinois Pension Fund v. The E Company

Case No.: 18-2273

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

Focus: Due Process Violation – Collective Bargaining Agreement

Under the terms of a collective bargaining agreement, T&W Edmier Corporation regularly contributed on behalf of its employees to the Suburban Teamsters of Northern Illinois Pension Fund. But in 2014 T&W ceased operations and cut off its pension contributions, prompting the Pension Fund to assess withdrawal liability of $640,900. The Pension Fund sought to collect payment by mailing a notice of the withdrawal liability to T&W and several affiliated entities, only to see their collection efforts ignored. The Trustees of the Pension Fund eventually sued to collect payment, and that action culminated in the district court ordering T&W, along with several other individuals and entities under common control, to pay the withdrawal liability. Now seeking to vacate the district court’s judgment, T&W and the other defendants argue that their due process rights were violated when the Pension Fund initiated collection of the withdrawal liability by mailing notice to some but not all of them. Seeing no error, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Juan Cervantes v. Ardagh Group

Case No.: 17-3536

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

Focus: Title VII Violation – Retaliation Claim

Juan Cervantes brought this action against his employer, Ardagh Group (“Ardagh”), alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Illinois Human Rights Act, 775 ILCS 5/1‐101 et seq. (“IHRA”). The complaint asserted that Ardagh had refused to promote him, had issued him performance warnings, and had demoted him because of his race and national origin and in retaliation for previous complaints about discrimination and harassment. The district court granted summary judgment in favor of Ardagh.

The district court’s decision is correct. Mr. Cervantes did not exhaust his administrative remedies for his discrimination claims. His retaliation claim also must fail because there is no evidence of a causal connection between any protected activity by Mr. Cervantes and an adverse employment action by Ardagh. Accordingly, we affirm the judgment of the district court.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Scott Books

Case No.: 17-3493

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

Focus: Sentencing Guidelines

On trial for bank robbery, Scott Books chose not to testify in his own defense and was found guilty and sentenced to 180 months’ imprisonment. He now challenges two pretrial decisions by the district court. The first allowed eyewitness testimony at trial from the two bank tellers that Books alleged based their identification of him as the robber not on personal knowledge, but rather on information improperly supplied by a police detective. The second ruling would have allowed the government, had Books chosen to testify at trial, to impeach him with physical evidence directly tying him to the robbery—evidence the police learned of (and then recovered) only as a result of a confession the district court separately had determined was unlawfully coerced.

Neither challenge succeeds. The district court did not err in finding the eyewitness identifications reflected the tellers’ firsthand knowledge of Books, and thus allowing their testimony at trial was entirely proper. Nor can we conclude that the district court’s conditional impeachment ruling, even if wrong on the law, mandates reversal in light of the overwhelming weight of evidence against Books. So we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: ABS Global, Inc. v. Inguran, LLC

Case No.: 17-1873

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

Focus: Antitrust Violation

This case is about the birds and the bees—in particular, about human efforts to control the reproductive outcomes otherwise determined by Mother Nature. Our specific interest is the cattle industry. Until recently, Inguran, LLC, which does business as Sexing Technologies (“Sexing Tech”), held a monopoly on the market for sexed cattle semen in the United States. ABS Global, Inc., which runs a large bull-stud operation, hoped to change that. Believing that its efforts had been thwarted in ways that violated the antitrust laws, ABS sued Sexing Tech in the Western District of Wisconsin in 2014. It alleged, among other things, that Sexing Tech had unlawfully monopolized the domestic sexed-semen market in violation of section 2 of the Sherman Act by using its market power to impose coercive contract terms. ABS sought a declaratory judgment proclaiming those contracts invalid, hoping to clear the way for its own entry into that market. Sexing Tech, along with its subsidiary, XY, LLC, (we use “Sexing Tech” to describe them collectively unless the distinction matters) counterclaimed that ABS infringed its patents and breached the contract between them by misappropriating trade secrets in developing ABS’s competing technology. Both sides also added state-law theories to the mix.

In the end, only three claims went to trial: ABS’s antitrust claim and Sexing Tech’s patent infringement and breach of contract counterclaims. After a nearly two-week trial, the jury returned a mixed—and somewhat puzzling—verdict, which the court ratified in post-trial rulings. We conclude, as did the district court, that ABS violated a confidentiality agreement it had with Sexing Tech, and that Sexing Tech’s patent was not invalid on obviousness grounds. The jury’s assessments of two of the three patent claims still at issue, however, cannot be reconciled under the rules governing dependent claims and enablement, and so a new trial is necessary on them.

The district court’s decision denying ABS’s motion for judgment as a matter of law on the ground that the ’987 patent fails for obviousness is AFFIRMED. We also AFFIRM the court’s denial of ABS’s motion for judgment as a matter of law on the breach of the confidentiality agreement. We conclude that the jury’s verdicts with respect to the enablement of Claims 1 and 2 are irreconcilably inconsistent. We therefore REVERSE the denial of ABS’s motion for a new trial on the ’987 patent and REMAND for further proceedings consistent with this opinion. Each side will bear its own costs on appeal.

Affirmed in part. Reversed and Remanded in part.

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7^th Circuit Court of Appeals

Case Name: Aleksey Arkadyevich Ruderman v. Matthew G. Whitaker

Case No.: 17-1689

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

Focus: Immigration – Removal Order

Aleksey Arkadyevich Ruderman is seeking to avoid removal to Belarus, his native country. An immigration judge ruled that Ruderman was inadmissible under the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(B), and thus subject to removal. The judge also held that Ruderman was not eligible for a waiver of inadmissibility and adjustment of status, cancellation of removal, asylum, withholding of removal, or protection under the Convention Against Torture. The Board of Immigration Appeals agreed. In particular, it held that Ruderman had not raised any meaningful challenge to his inadmissibility determination and that even if the immigration judge had applied the wrong legal standard to determine that Ruderman was ineligible for a waiver of inadmissibility, her alternative discretionary denial made the error harmless.

Ruderman petitions us for review of those holdings, along with others reached by the immigration judge and affirmed by the Board. While we largely agree with the Board’s analysis, we hold that it was flawed with respect to one issue: the question whether Ruderman is statutorily inadmissible. We therefore grant Ruderman’s petition and remand for the Board to revisit that question and, if necessary, to decide whether Ruderman is eligible for a waiver.

Petition Granted

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7^th Circuit Court of Appeals

Case Name: Bruce Giles v. Salvador A. Godinez, et al.

Case No.: 15-3077

Officials: FLAUM, MANION, and ST. EVE, Circuit Judges.

Focus: 8^th Amendment Violation

Bruce Giles is a prisoner in the custody of the Illinois Department of Corrections (the “Department”) who suffers from schizoaffective disorder. Giles filed this action pro se under 42 U.S.C. § 1983 against several Department officials. He alleges the defendants violated his rights under the Eighth Amendment by being deliberately indifferent to his serious medical needs, subjecting him to unconstitutional conditions of confinement, and failing to protect him from other inmates. The district court granted summary judgment to the defendants and Giles now appeals. The district court’s conclusion was based largely on its holding that Giles could not establish the subjective elements of his claims because the defendants, who are all non-medical officials, appropriately relied on the judgment of medical professionals. Because we agree Giles cannot establish the defendants possessed a sufficiently culpable state of mind, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Mack A. Sims v. William Hyatte

Case No.: 18-1573

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

Focus: Due Process Violation

Petitioner-appellant Mack Sims seeks a writ of habeas corpus, arguing his due process rights were violated because the state withheld evidence favorable to his case. In November of 1993, security guard Shane Carey was shot in Elkhart, Indiana. Approximately fifteen to twenty minutes after the shooting, the Elkhart police found Mack Sims near a walking path around twenty feet from where the shooting occurred. After Carey identified him at trial as the shooter, Sims was convicted of attempted murder and sentenced to a term of imprisonment of 35 years. In 2012, during a post-conviction evidentiary hearing, Sims learned the prosecution withheld evidence that Carey, the only witness who could identify the shooter, was hypnotized before trial to enhance his recollection of the shooting. After the Indiana courts denied habeas relief, Sims filed a petition for a writ of habeas corpus in federal court. The district court held that the Indiana court did not unreasonably apply established federal law and denied the petition. Because we disagree, we reverse.

Reversed and Remanded

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7^th Circuit Court of Appeals

Case Name: Jeffery A. Kopplin v. Wisconsin Central Limited

Case No.: 17-3602

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

Focus: FELA Violation

Jeffery Kopplin brought two claims against the Wisconsin Central railroad under the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. §§ 51 et seq. Both rest on the same allegation: that Kopplin injured his elbow in an effort to operate a broken railroad switch while employed by Wisconsin Central. The district court entered summary judgment for the railroad in part because Kopplin could not prove that the broken switch caused his injury. While the parties raise several other questions, that alone is sufficient to affirm.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Joshua A. Malueg

Case No.: 2017AP1449-CR

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

Focus: Ineffective Assistance of Counsel

Joshua Malueg appeals a judgment, entered upon a jury’s verdict, convicting him of one count of incest with a child by a stepparent. He also appeals an order denying his motion for postconviction relief. Malueg contends that: (1) his trial counsel provided ineffective assistance by not attempting to introduce evidence regarding an allegedly false prior sexual assault allegation made by the victim; and (2) he is entitled to a new trial in the interest of justice. We reject his arguments and affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin Ex. Rel. Annette Flynn v. Kemper Center, Inc. et al.

Case No.: 2017AP1897

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

Focus: Statutory Interpretation – Wisconsin’s Public Records Law

Kemper Center, Inc. and Gary Vaillancourt appeal a grant of summary judgment to Annette Flynn, proceeding on behalf of the State of Wisconsin, in Flynn’s action to enforce Wisconsin’s Public Records Law, WIS. STAT. §§ 19.31-.39 (2015-16).  The sole issue in this case is whether Kemper Center, Inc. is a “quasi-governmental corporation” and therefore an “authority” having custody of a record within the meaning of § 19.32(1). Based upon the undisputed facts, we conclude as a matter of law that Kemper Center, Inc. is not a quasi-governmental corporation subject to the Public Records Law. Accordingly, we reverse the circuit court’s grant of summary judgment and remand with directions to dismiss the complaint.

Recommended for Publication

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Andrew Anton Sabo

Case No.: 2017AP2289-CR

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

Focus: Probable Cause – Suppression of Evidence

Andrew Anton Sabo appeals his judgment of conviction entered after he pled guilty to one count of possessing between five and fifteen grams of cocaine with intent to deliver as a second or subsequent offense, and two counts of being a felon in possession of a firearm. Sabo asserts that evidence seized from his residence during the execution of a search warrant should have been suppressed because the affidavit in support of the warrant failed to provide probable cause.

Sabo further argues that he made the required preliminary showing for a Franks-Mann hearing relating to alleged false statements included in that affidavit, and, as such, the trial court erred in declining to hear his motion. Additionally, Sabo contends that the trial court erred when it denied his motion to compel disclosure of the identity of the informant who provided information that was included in the affidavit in support of the warrant. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Mickey L. Miller

Case No.: 2017AP2323-CR

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

Focus: Double Jeopardy – Photo Array

Mickey L. Miller appeals a nonfinal order of the trial court denying his motion to dismiss the armed robbery and false imprisonment charges against him. Miller was previously granted a mistrial, without prejudice, after the existence of an additional photo array was discovered during his trial. That additional photo array contained the picture of an individual that police believed could have been the perpetrator, but the victim eliminated him as a suspect.

The existence of that additional photo array was unknown to either party prior to trial; however, its discovery directly impacted Miller’s primary theory of defense, which revolved around the identification of the other suspect. Furthermore, the State was unable to immediately obtain information regarding the additional photo array. As a result, the trial court granted the defense’s request for a mistrial.

After an investigation relating to the additional photo array, the State sought to reschedule the trial. Miller, however, filed a motion to dismiss on the grounds that a new trial would subject him to double jeopardy. The State argues that the law relating to double jeopardy does not prevent the commencement of a new trial after a mistrial is requested by the defendant unless the mistrial was granted because of prosecutorial overreaching. The State contends that the elements required to prove prosecutorial overreaching are not present in this case. We agree and affirm.

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WI Court of Appeals – District I

Case Name: Edward Towle v. Deborah Kerr, et al.

Case No.: 2017AP2528

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

Focus: Employment – Breach of Contract

Edward Towle appeals an order of the circuit court granting summary judgment to Deborah Kerr, the Board of Education of the School District of Brown Deer, and the School District of Brown Deer. Towle contends that the circuit court erred in finding that the defendants did not breach Towle’s contract when he was placed on an administrative leave, that Towle’s constitutional property and liberty interests were not violated, that the defendants did not violate a duty of good faith and fair dealing, and that the defendants did not tortiously interfere with Towle’s contract or prospective contracts. We affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Richard E. Moreno

Case No.: 2018AP229-CR

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

Focus: Abuse of Discretion – Sufficiency of Evidence

Richard Moreno appeals from a judgment convicting him of first-degree sexual assault of a child under the age of twelve and incest with a child. The sole issue on appeal is a challenge to the circuit court’s admission of other acts evidence at trial. We conclude the court properly exercised its discretion in admitting the evidence and therefore affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. L.V.

Case No.: 2018AP1065

Officials: KESSLER, P.J.

Focus: Termination of Parental Rights

L.V. appeals the order terminating his parental rights to his daughter, A.N.L.-V. L.V. argues that he received ineffective assistance of counsel during his jury trial. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Damien D. McDade

Case No.: 2018AP1111-CR

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

Focus: Sentence Modification

Damien D. McDade appeals from a judgment of conviction, entered upon his guilty pleas, for five felonies. He also appeals from an order denying his postconviction motion for sentence modification. McDade seeks sentence modification on grounds that his total sentence is “unduly harsh and severe, especially in light of the sentences” imposed on two co-defendants. (Capitalization and bolding omitted.) We affirm the judgment and order.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. S.M.T.

Case No.: 2018AP2113; 2018AP2114; 2018AP2115

Officials: BRASH, J.

Focus: Termination of Parental Rights

S.M.T. appeals the trial court’s orders terminating her parental rights of S.A.D.T., S.L., and S.L. S.M.T. argues that there was insufficient evidence to support the trial court’s ruling that the State had proven the two grounds set forth in its petition: that the children were in continuing need of protective services and there was a substantial likelihood that S.M.T. would not meet the court-ordered conditions for their return within nine months of the hearing on the petition; and that S.M.T. had failed to assume parental responsibility for her children. We affirm.

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WI Court of Appeals – District II

Case Name: C & C Administration LLC, v. Signature Properties LLC, et al.

Case No.: 2017AP1741

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

Focus: Breach of Contract

C&C Administration, Inc. (C&C) appeals from a judgment awarding C&C damages for breach of contract and associated expenses incurred in relation to a building renovation project undertaken by C&C’s landlord, Signature Properties LLC, and its principal, Kevin Harry (hereafter Signature). We affirm.

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WI Court of Appeals – District II

Case Name: Mark R. Juul v. Marla K. Zeman

Case No.: 2017AP1957

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

Focus: Abuse of Discretion – Maintenance Award

Mark R. Juul appeals from a circuit court order modifying his maintenance obligation to his former spouse, Marla K. Zeman. We conclude that the circuit court properly exercised its discretion and affirm.

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WI Court of Appeals – District II

Case Name: Walworth County v. J.P.S.

Case No.: 2018AP244

Officials: REILLY, P.J.

Focus: Abuse of Discretion – Placement Order

J.P.S., M.R.S.’s paternal grandmother, appeals from an order granting a petition for a change of placement of M.R.S. from grandma’s home to the home of foster parents, A.C. and R.C., pursuant to WIS. STAT. § 48.357. For the reasons that follow, we agree that the circuit court properly exercised its discretion and accordingly affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Michael R. Pace

Case No.: 2018AP1428

Officials: NEUBAUER, C.J.

Focus: OWI – Probably Cause

Michael R. Pace appeals from an order determining that his refusal to submit to a chemical test for blood alcohol content was unlawful. He asserts there was no probable cause to arrest him for operating a vehicle while under the influence of an intoxicant (OWI), thereby making his refusal lawful. We disagree and affirm, as the totality of the circumstances— excessive speed, lane deviation, red, bloodshot eyes, odor of alcohol, and failure to pass field sobriety tests—established probable cause to arrest for OWI.

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WI Court of Appeals – District IV

Case Name: Lee Quality Home Care LLC, v. Department of Health Services

Case No.: 2017AP1216

Officials: Sherman, Kloppenburg and Fitzpatrick, JJ.

Focus: Sufficiency of Evidence – Medical Assistance Program Payments

This appeal concerns the efforts of the Wisconsin Department of Health Services (DHS) to recover payments DHS made to Lee Quality Home Care LLC, a provider of personal care services to Medicaid recipients. Lee Quality challenges DHS’s determinations that: Lee Quality’s personal care workers were not trained or supervised as required by DHS administrative rules; and DHS can recover payments made to Lee Quality for the services provided by those workers.

We conclude that there was substantial evidence in the record to support DHS’s finding that Lee Quality personal care workers did not have the requisite training. We also conclude that DHS has the authority to recover payments made to Lee Quality for personal care services provided by those workers. As to the supervision of Lee Quality personal care workers, we conclude that DHS erred in finding that Lee Quality made a material concession about the evidence, and that DHS did not consider material evidence regarding that issue. As we explain, we direct the circuit court to remand this matter to DHS for a determination of the supervision issue in light of relevant evidence in the record. Therefore, we affirm in part, reverse in part and direct the circuit court to remand to DHS for further proceedings consistent with this opinion.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Caleb J. Rave

Case No.: 2017AP2281-CR

Officials: Sherman, Blanchard, and Kloppenburg JJ.

Focus: Abuse of Discretion and Ineffective Assistance of Counsel

Caleb Rave appeals a judgment of conviction for one count of first-degree child sexual assault and an order denying his postconviction motion to set aside the judgment. An initial, partial trial ended when the circuit court declared a mistrial. A second, completed trial resulted in the conviction. The court declared the mistrial after discovering, during the initial trial, that a significant set of evidentiary issues that the court was required to resolve before trial had not been resolved. After Rave was convicted at the second trial, he filed a post-conviction motion based on the Double Jeopardy Clause of the federal and state constitutions, which was denied by the circuit court. Rave makes two closely related arguments on appeal. He argues that (1) the court erroneously exercised its discretion in declaring a mistrial because there was not a manifest necessity calling for a mistrial, and (2) he was denied effective assistance of counsel because his trial attorney failed to move to dismiss the charges against him before the second trial on the ground of double jeopardy. We reject Rave’s arguments and affirm.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Koss Corporation v. Park Bank, et al.

Case No.: 2019 WI 7

Focus: Statutory Interpretation – Uniform Fiduciaries Act

We review a published decision of the court of appeals that affirmed an order of the circuit court granting summary judgment dismissing Koss Corporation’s Uniform Fiduciaries Act (UFA) claim against Park Bank. Our review centers on two related issues: First, consistent with the UFA, we interpret and apply the terms “good faith” as set out in Wis. Stat. § 112.01(1)(c) and “bad faith” employed in § 112.01(9); and second, we determine whether summary judgment dismissing Koss Corporation’s claim was properly granted.

We conclude Wis. Stat. § 112.01(1)(c) describes the term “good faith” as honest bank acts, even when negligently done, and consistent with the majority of jurisdictions’ interpretations of the UFA, “bad faith” is inconsistent with the statutory criteria for “good faith.” Therefore, bad faith pursuant to § 112.01(9), which is an intentional tort, may be shown by acts evidencing bank dishonesty such as a bank willfully failing to further investigate compelling and obvious known facts suggesting fiduciary misconduct because of a deliberate desire to evade knowledge of fiduciary misconduct.

We further conclude that given the allegations that Koss Corporation asserts in regard to its claim that Park Bank is liable for the intentional tort of bad faith, no proof has been proffered of bank dishonesty wherein Park Bank willfully failed to further investigate compelling and obvious known facts suggesting fiduciary misconduct because of a deliberate desire to evade knowledge of fiduciary misconduct.

Accordingly, we affirm the court of appeals’ affirmance of the circuit court’s dismissal of Koss Corporation’s claim that Park Bank acted in bad faith in processing the transactions that Sujata Sachdeva initiated. Because we conclude Park Bank is not liable to Koss Corporation, we also affirm the dismissal of Park Bank’s third-party claims.

Affirmed

Concur: A.W. BRADLEY, J. concurs, joined by ABRAHAMSON, J., and DALLET, J. (opinion filed).

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

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WI Supreme Court

Case Name: Dr. Stuart White, et al. v. City of Watertown

Case No.: 2019 WI 9

Focus: Statutory Interpretation – Dispute Resolution

Some adjoining landowners in the City of Watertown have a long-standing dispute over who must pay to construct and maintain partition fencing between their properties. This case, however, is not about the neighbors’ dispute, at least not directly. It is instead about the mechanism by which that dispute is addressed. The Whites say the City of Watertown is responsible for conducting a statutorily-prescribed procedure for resolving fence-related disputes. The City of Watertown, on the other hand, says the statutes authorize only towns——not cities——to conduct such proceedings.

Although we affirm the court of appeals, we have traveled a different analytical route. The court of appeals reasoned that the legislature inadvertently eliminated a city’s authority to administer the Enforcement Procedures in 1878. Its conclusion that Chapter 90 is ambiguous probably stems chiefly from the parties’ failure to bring Wis. Stat. § 990.01(42) to its attention. However, as we described above, the legislature never eliminated a city’s authority to enforce landowners’ partition fence-related obligations, it merely restructured the manner in which it expressed the authorization. That structure has carried forward to Chapter 90 and § 990.01(42). So we conclude that Chapter 90’s plain language, when read in light of § 990.01(42), unambiguously authorizes the City to administer the Enforcement Procedures.

For the reasons we described, we agree with the Whites and so affirm the court of appeals.

Affirmed

Concur:

Dissent:

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