Weekly Case Digests – April 29, 2019 – May 3, 2019

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: St. Joan Antida High School Inc., v. Milwaukee Public School District

Case No.: 18-1673

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

Focus: Equal Protection Violation

There have been several constitutional challenges to school busing in Wisconsin over the years. See, e.g., St. Augustine Sch. v. Evers, 906 F.3d 591 (7th Cir. 2018); Racine Charter One, Inc. v. Racine Unified Sch. Dist., 424 F.3d 677 (7th Cir. 2005). This is another. Our focus here is on the Milwaukee Public School District (“MPS”), private schools, and the Equal Protection Clause.

MPS offers free transportation to public‐school students who attend certain schools outside of their neighborhoods. All other students—including private‐school students—are only eligible if they live farther than one mile from the nearest public‐transportation stop. MPS also requires private schools to submit a roster of students who need transportation by July 1; it has no such requirement for its public schools. St. Joan Antida High School, a private school, filed this lawsuit, claiming that these restrictions violate the Equal Protection Clause. This is especially so, St. Joan submits, because state law requires MPS to transport students with “reasonable uniformity,” whether they attend public or private schools

The district court granted summary judgment to MPS, and St. Joan appeals. We affirm in part and reverse and remand in part. Rational bases exist for the differences in busing eligibility, and so we affirm on that ground. But more work needs to be done to resolve St. Joan’s challenge to the July 1 deadline, and so we reverse and remand on that ground.

Affirmed in part. Reversed and remanded in part.

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7^th Circuit Court of Appeals

Case Name: Norma L. Cooke v. Jackson National Life Insurance Company

Case No.: 18-3527; 18-3583

Officials: EASTERBROOK and BARRETT, Circuit Judges, and STADTMUELLER, District Judge.

Focus: Life Insurance Policy – Attorney’s Fees

In this suit under the diversity jurisdiction, a district court ordered Jackson National Life Insurance to pay about $191,000 on a policy of life insurance. 243 F. Supp. 3d 987 (N.D. Ill. 2017). The court added that the insurer had litigated unreasonably and ordered it to reimburse Cooke’s legal fees under 215 ILCS 5/155. (Throughout this opinion “Cooke” refers to plaintiff Norma Cooke, the widow of decedent Charles Cooke.) The insurer paid the death benefit and appealed to contend that the court should not have tacked on attorney’s fees. But because the district court had not specified how much the insurer owes, we dismissed the appeal as premature. 882 F.3d 630 (7th Cir. 2018). insurer had litigated unreasonably and ordered it to reimburse Cooke’s legal fees under 215 ILCS 5/155. (Throughout this opinion “Cooke” refers to plaintiff Norma Cooke, the widow of decedent Charles Cooke.) The insurer paid the death benefit and appealed to contend that the court should not have tacked on attorney’s fees. But because the district court had not specified how much the insurer owes, we dismissed the appeal as premature. 882 F.3d 630 (7th Cir. 2018).

Federal rather than state law governs how federal litigation is conducted, plus when (and who) may be penalized for misconduct. As we have rejected Cooke’s arguments under federal law, the award must be reversed. And this means that we must reject Cooke’s argument that §5/155 entitles her to legal fees incurred in opposing Jackson’s appeals.

Reversed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Alandous Briggs

Case No.: 18-1415

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

Focus: Sentencing Guidelines – Enhancement

Alandous Briggs pleaded guilty to being a felon in possession of a firearm after officers found drugs and firearms at his home during a parole visit. At sentencing, the district court applied a four-level enhancement for possessing a firearm in connection with felony possession of drugs. But because the district court made essentially no factual findings connecting Briggs’s firearms to his felony drug possession, we reverse and remand for resentencing.

Reversed and remanded

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Casey M. Fisher

Case No.: 2017AP868

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

Focus: Ineffective Assistance of Counsel

Casey M. Fisher appeals from an order denying without a hearing his second motion for a new trial. A jury convicted Fisher of armed robbery and first-degree intentional homicide for the October 26, 1993 murder of Yaser Mousa, a grocery store owner who was a friend of Fisher’s.  Fisher was seen in Mousa’s vehicle at the store less than fifteen minutes before Mousa was found dead in his vehicle three blocks away. Witnesses testified that Fisher talked about the crime both before and after he committed it.

The State first argues that Fisher has not shown a “sufficient reason” for failing to raise this claim in his first appeal such that he can overcome Escalona’s procedural bar to successive motions. See WIS. STAT. § 974.06(4) and State v. Escalona-Naranjo, 185 Wis. 2d 168, 184, 517 N.W.2d 157 (1994) (barring successive claims except for any claim that “for sufficient reason was not asserted or was inadequately raised in his original, supplemental or amended postconviction motions”).

Fisher argues against the procedural bar, saying he was unaware of the police report involving the drug house lead until after retaining his current postconviction counsel. We reject Fisher’s claim on its merits. Fisher argued that trial counsel rendered ineffective assistance of counsel by failing to present evidence from the later-discovered police report about the drug house lead.

We conclude that Fisher is not entitled to an evidentiary hearing on his ineffective assistance claim because this record “conclusively demonstrates that the defendant is not entitled to relief.” See State v. Bentley, 201 Wis. 2d 303, 309-10, 548 N.W.2d 50 (1996) (citation omitted). There is no evidence linking the three men found in the drug house to the murder.  Fisher argues in the alternative that it appears from the record that the real controversy was not fully tried and that he is therefore entitled to a new trial in the interest of justice. For the reasons that follow, it is apparent from the record that the real controversy was fully tried. Therefore, we affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Huandra J. Murray

Case No.: 2017AP929-CR

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

Focus: Ineffective Assistance of Counsel

Huandra Murray appeals a judgment of conviction and an order denying postconviction relief. Murray argues his trial attorney was ineffective by failing to strike a prospective juror who raised concerns regarding personal security during voir dire, by failing to request a new jury pool, and by failing to object when the jury was impaneled. Murray also argues the circuit court erroneously exercised its discretion by failing to adequately investigate whether the prospective juror in question was biased and whether his comments tainted the jury pool. We reject Murray’s arguments and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Damon Henri Evans, II

Case No.: 2017AP1147-CR

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

Focus: Probable Cause

Damon Evans challenges the circuit court’s denial of his motion to suppress heroin, cocaine and marijuana found on him during a traffic stop. He also challenges the denial of postconviction relief and the denial of a motion for reconsideration. Evans raises several arguments attempting to show that police officer testimony describing the stop was “inherently not credible.” From this premise, Evans urges this court to conclude that there was no valid basis for the stop, and that the officers conducted an illegal strip search. We reject Evans’ arguments and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Martez C. Fennell

Case No.: 2017AP2480-CR

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

Focus: Abuse of Discretion – Sentencing

Martez C. Fennell appeals a judgment of conviction, following a jury trial, of one count of armed robbery as a party to a crime and one count of operating a vehicle without the owner’s consent as a party to a crime. Fennell also appeals from the orders denying his postconviction motion for relief and his motion for reconsideration. Fennell contends that the trial court erroneously exercised its sentencing discretion by “fashioning Fennell’s sentence without giving any consideration to Fennell’s individual characteristics or this case’s specific mitigating and/or aggravating factors.”  We affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Danny L. Benford, Jr.

Case No.: 2017AP2520

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

Focus: Court Error – Abuse of Discretion

Danny Benford appeals a judgment, entered upon a jury’s verdict, convicting him of one count of first-degree reckless injury, one count of aggravated battery, and two counts of disorderly conduct. He also appeals an order denying his postconviction motion for a new trial.

On appeal, Benford contends that he is entitled to a new trial because: (1) the trial court erroneously exercised its discretion by ordering that he wear a stun belt to attend his trial; and (2) this erroneous decision resulted in the coerced and involuntary waiver of his constitutional and statutory rights to be present at trial. We conclude the court did not erroneously exercise its discretion by requiring Benford to wear a stun belt during the trial because the court made case-specific findings that supported its determination that such an order was necessary to ensure courtroom safety. Further, we conclude that Benford voluntarily waived his constitutional and statutory rights to be present at trial. Consequently, we affirm.

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WI Court of Appeals – District III

Case Name: Rocko A. Hunt v. Kayla Mae Bertrang

Case No.: 2018AP29

Officials: SEIDL, J.

Focus: Damages

Rocko Hunt, pro se, appeals a circuit court order awarding him $287.50 from Kayla Bertrang following a small claims court bench trial. Hunt argues the court erred by failing to award him approximately $2635 in additional damages for one-half of the rent and utility bills that had accrued after Bertrang moved out of an apartment she shared with Hunt. Bertrang, also pro se, declined to submit a response brief after we granted her request for an extension of time to do so. We reject Hunt’s argument that Bertrang conceded all arguments on appeal, and we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Maries D. Addison

Case No.: 2018AP55-CR; 2018AP56-CR; 2018AP57-CR

Officials: Brennan, Brash and Dugan, JJ.

Focus: 6th Amendment Violation

Maries D. Addison, with counsel, appeals from judgments of conviction for seventeen felonies, including sexual assault, human trafficking, child exploitation, and child enticement with intent to cause the child to engage in prostitution. Addison also appeals the order denying his postconviction motion. This appeal is from three cases that the trial court consolidated for purposes of trial. We also consolidated the three cases for the purposes of this appeal.

Addison argues that the cases against him should have been dismissed due to the violation of his speedy trial rights. He also argues that the trial court erred (1) when it denied his request for new counsel, required him to proceed pro se, and when it failed to make a sufficient finding that he was competent to represent himself; and (2) when it directed his Bible be removed from the courtroom in violation of his right to religious freedom. We are not persuaded and, therefore, affirm.

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WI Court of Appeals – District I

Case Name: Marvin W. Wolff, et al. v. Menard, Inc., et al.

Case No.: 2018AP119

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

Focus: Insurance – Negligence Claim

Menard, Inc., appeals from a summary judgment determining there was no coverage under a business auto insurance policy for claims of negligent ice and snow removal against Matthew Neumann, Sr., the named insured of 1st Auto & Casualty Insurance Company (1st Auto). Menard contends genuine issues of material fact precluded summary judgment. We disagree and affirm.

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WI Court of Appeals – District III

Case Name: Fox Valley Finance, Inc. v. Aaron K. Gholston, et al.

Case No.: 2018AP337

Officials: SEIDL, J.

Focus: Court Error – Replevin

James Gauthier, pro se, appeals a judgment of replevin granted to Fox Valley Finance that permitted it to seize a vehicle Gauthier purchased at a self-storage auction. Gauthier argues that he purchased the vehicle free of Fox Valley’s security interest lien, and the circuit court therefore erred in granting judgment for Fox Valley. We disagree and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. John Polchert

Case No.: 2018AP849-CR

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

Focus: Jury Instructions

John Polchert appeals the judgment of conviction, following a jury trial, of one count of using a computer to facilitate a child sex crime. Polchert argues that the trial court erred when it denied his request for a jury instruction on the entrapment defense. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Corey R. Pittman

Case No.: 2018AP868-CR

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

Focus: Probable Cause

Corey R. Pittman appeals a judgment of conviction for possessing a firearm as a felon and as a repeater. See WIS. STAT. §§ 941.29(1m)(a), 939.62(1)(b) (2017-18). The issue on appeal is whether police officers lawfully seized and frisked him. They did. Therefore, we affirm.

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WI Court of Appeals – District I

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

Case No.: 2018AP871-CR

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

Focus: Abuse of Discretion – Newly Discovered Evidence

Andre L. Thornton appeals a judgment of conviction, following a jury trial, for one count of first-degree reckless homicide, as a party to a crime. He also appeals the order denying his postconviction motion.

Thornton argues that the trial court erroneously exercised its discretion when it denied his motion for a new trial based on newly discovered evidence that one of the State’s witnesses had perjured himself ten years earlier in a federal court proceeding. We disagree and affirm because we conclude that the trial court properly determined that the proffered impeachment evidence did not create a reasonable probability that had the jury heard the new evidence that the result of the trial would be different.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Tracy J. Williams

Case No.: 2018AP1503-CR

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

Focus: Plea Withdrawal

Tracy Williams appeals from a judgment convicting him of second-degree sexual assault of a child under the age of sixteen and from an order denying his postconviction motion for plea withdrawal. Williams contends the circuit court erred by denying his plea withdrawal motion based upon what the court viewed to be a lack of required testimony from Williams’ trial counsel rather than upon a determination as to the credibility of Williams’ own testimony. We affirm based upon our independent review of the record.

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WI Court of Appeals – District II

Case Name: Winnebago County v. C.S.

Case No.: 2016AP1982

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

Focus: Prisoner Involuntary Commitment

C.S. was found not competent to make informed decisions as to the advantages and disadvantages of accepting particular medication or treatment while a prisoner and was involuntarily medicated per WIS. STAT. § 51.61(1)(g) (2017-18). C.S. argues that § 51.61(1)(g) is facially unconstitutional as it does not require a finding of dangerousness before involuntarily medicating prisoners who are committed under WIS. STAT. § 51.20(1)(ar). We affirm as § 51.61(1)(g) is reasonably related to the state’s legitimate interest in providing care and assistance to prisoners suffering from mental illness who are found not competent to refuse medication and treatment.

Affirmed

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Faith A. Parafiniuk

Case No.: 2018AP1956

Officials: HAGEDORN, J.

Focus: OWI – Unlawful-stop Claim

The circuit court determined that Faith A. Parafiniuk improperly refused to submit to a chemical test under WIS. STAT. § 343.305(9). Parafiniuk contends that this conclusion is erroneous because the underlying traffic stop was unlawful. We affirm the circuit court’s decision.

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WI Court of Appeals – District III

Case Name: Scott J. Brauer, et al. v. Veripure, LLC, et al.

Case No.: 2018AP761

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

Focus: Time-barred

This appeal involves securities fraud, racketeering, and intentional misrepresentation claims brought against multiple defendants by Scott Brauer, Adam Kilgas, Duane McVane, Matt Vandehey, and Paul Weyers (collectively, “the investors”). The circuit court dismissed these claims on summary judgment. The investors argue that the court erred by: (1) granting summary judgment dismissing all of the investors’ securities fraud claims as time-barred by the applicable statute of limitations; and (2) denying the investors’ post summary judgment motion for leave to file a second amended complaint in an attempt to cure deficiencies identified by the court in the racketeering and intentional misrepresentation claims made in the first amended complaint.

We conclude that the circuit court erroneously granted summary judgment dismissing the securities fraud claims of most of the investors because, based on the record developed to date, there are competing reasonable inferences from the undisputed facts as to whether those claims are barred by the applicable 2-year limitation period. However, investor McVane’s situation is different from that of the other investors. As to McVane, we affirm dismissal of his claims based on McVane’s implicit concession in his reply brief that his securities fraud claims are barred by the applicable 5-year limitation period. Finally, we affirm the court’s denial of the investors’ motion for leave to amend the dismissed racketeering and intentional misrepresentation claims, because the investors fail to address, in their reply brief, the counterargument raised by the defendants in their response brief. Accordingly, we affirm in part, reverse in part, and remand to the circuit court for further proceedings.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Juan L. Walker

Case No.: 2018AP1162-CR

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

Focus: Admissibility of Evidence

Juan Walker has been charged in the Sauk County Circuit Court with the sexual assault of Katherine. In a pretrial ruling, the circuit court ordered that DNA evidence from the bed sheet on which the sexual assault allegedly occurred is not admissible in evidence at trial. Walker filed a petition for leave to appeal that order, and the petition was granted by this court. Based on the current state of the record, we conclude that the bed sheet DNA evidence is admissible and reverse the order of the circuit court. Nothing in this opinion is intended to preclude the circuit court from revisiting the topic if additional information or a new argument supports a different result.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Latrail D. Putman

Case No.: 2018AP1191-CR

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

Focus: Ineffective Assistance of Counsel

Latrail Putman was convicted following a jury trial of first-degree recklessly endangering safety and of arson to a building. He makes three arguments on appeal: (1) the circuit court erred by not granting his motion for a mistrial related to testimony by a law enforcement witness; (2) he received ineffective assistance of counsel when his trial counsel failed to take any action concerning a juror who Putman asserts was sleeping during the presentation of evidence; and (3) the court erred by not “conduct[ing] some inquiry” into the issue of the sleeping juror.

As to the first argument, Putman fails to show that the circuit court misused its discretion when it did not grant his motion for a mistrial. As to the second and third arguments, both are premised on Putman’s contention that the court erred when it found that no juror had slept through the presentation of evidence. Because we do not agree with Putman that this finding is clearly erroneous, we reject both arguments. Accordingly, we affirm.

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WI Court of Appeals – District IV

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

Case No.: 2018AP1601-CR

Officials: FITZPATRICK, J.

Focus: Sentence Credit

Caleb Hawley appeals a judgment of conviction of the Dodge County Circuit Court denying sentence credit. In this case, the circuit court imposed a sentence to run consecutive to jail time that Hawley was then serving as a condition of probation in Dane County. Hawley argues that the circuit court lacked authority to stay the sentence so that it would run consecutive to the Dane County conditional jail time, and he requests sentence credit for this conviction. Because the circuit court lacked authority to impose a sentence consecutive to Hawley’s jail time as a condition of probation and the appropriate remedy is resentencing, I reverse and remand with directions.

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WI Supreme Court Digests

WI Supreme Court

Case Name: David Macleish, et al. v. Boardman & Clark LLP

Case No.: 2019 WI 31

Focus: Estate – Malpractice

The petitioners, collectively the MacLeish children, seek review of an unpublished court of appeals decision affirming the circuit court’s order dismissing their legal malpractice claim against the law firm that administered their father’s estate.  The court of appeals assumed without deciding that the MacLeish children could bring a claim for legal malpractice based on the negligent administration of an estate. It nevertheless affirmed the circuit court’s dismissal of the claim against the Boardman law firm because the children failed to demonstrate that the firm’s alleged negligent administration of their father’s estate thwarted their father’s clear testamentary intent.

We reject the MacLeish children’s invitation to adopt the Restatement (Third) of the Law Governing Lawyers § 51 (2000). The Auric exception remains the operative standard. We conclude that the narrow Auric exception to the rule of nonliability of an attorney to a non-client applies to the administration of an estate in addition to the drafting and execution of a will. That is, a non-client who is a named beneficiary in a will has standing to sue an attorney for malpractice if the beneficiary can demonstrate that the attorney’s negligent administration of the estate thwarted the testator’s clear intent.

Applying Auric to the facts of this case, we determine that Charles MacLeish’s clear testamentary intent was not thwarted by any alleged negligence on the part of Boardman. As a result, we conclude that the MacLeish children’s claim against Boardman for legal malpractice was properly dismissed. Accordingly, we affirm the decision of the court of appeals.

Affirmed

Concur:

Dissent:

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WI Supreme Court

Case Name: State of Wisconsin v. Corey R. Fugere

Case No.: 2019 WI 33

Focus: NGI Plea Withdrawal

This is a review of a published decision of the court of appeals, State v. Fugere, 2018 WI App 24, 381 Wis. 2d 142, 911 N.W.2d 127, affirming the Chippewa County circuit court’s order. The circuit court’s order denied Corey R. Fugere’s (“Fugere”) motion to withdraw his plea of not guilty by reason of mental disease or defect (“NGI”), which was based on the circuit court providing inaccurate information to Fugere concerning the maximum period of civil commitment should he prevail on his affirmative defense to the criminal charges. The court of appeals affirmed the circuit court, and we affirm the court of appeals.

We conclude that a circuit court is not required to inform an NGI defendant of the maximum possible term of civil commitment at the guilt phase: (1) because a defendant who prevails at the responsibility phase of the NGI proceeding has proven an affirmative defense in a civil proceeding, avoiding incarceration, and is not waiving any constitutional rights by so proceeding in that defense; and (2) because an NGI commitment is not punishment, but rather a collateral consequence to one who successfully mounts an NGI defense to criminal charges. We therefore decline to exercise our superintending and administrative authority to require circuit courts to advise NGI defendants of the maximum period of civil commitment.

Fugere also requests that this court conclude that the circuit court’s error was not harmless with respect to the misinformation provided to him concerning potential civil consequences should he prevail in his defense. The circuit court here provided accurate information to Fugere regarding the maximum possible term of imprisonment but inaccurate information regarding commitment, so we thus address whether the circuit court’s error otherwise entitles Fugere to withdraw his NGI plea. We conclude that the circuit court’s error was harmless because it was unrelated to the guilt phase of the NGI defense, and instead, the inaccurate information pertained to the potential civil commitment at the responsibility phase. Additionally, Fugere received the benefit of his plea agreement with the State and otherwise understood the consequences of prevailing on an NGI defense as he was already civilly committed for an unrelated charge. Thus, there was no manifest injustice, and we affirm the court of appeals.

Affirmed

Concur:

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

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Supreme Court Digests

United States Supreme Court

Case Name: Republic of Sudan v. Rick Harrison, et al.

Case No.: 16-1094

Focus: Statutory Interpretation – FSIA

This case concerns the requirements applicable to a particular method of serving civil process on a foreign state. Under the Foreign Sovereign Immunities Act of 1976 (FSIA), a foreign state may be served by means of a mailing that is “addressed and dispatched . . . to the head of the ministry of foreign affairs of the foreign state concerned.” 28 U. S. C. §1608(a)(3). The question now before us is whether this provision is satisfied when a service packet that names the foreign minister is mailed to the foreign state’s embassy in the United States. We hold that it is not. Most naturally read, §1608(a)(3) requires that a mailing be sent directly to the foreign minister’s office in the minister’s home country.

Reversed and remanded

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

Concurring:

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United States Supreme Court

Case Name: John Sturgeon v. Bert Frost, et al.

Case No.: 17-949

Focus: Statutory Interpretation – ANILCA

This Court first encountered John Sturgeon’s lawsuit three Terms ago. See Sturgeon v. Frost, 577 U. S. ___ (2016) (Sturgeon I ). As we explained then, Sturgeon hunted moose along the Nation River in Alaska for some 40 years. See id., at ___ (slip op., at 1). He traveled by hovercraft, an amphibious vehicle able to glide over land and water alike. To reach his favorite hunting ground, he would pilot the craft over a stretch of the Nation River that flows through the Yukon-Charley Rivers National Preserve, a unit of the federal park system managed by the National Park Service. On one such trip, park rangers informed Sturgeon that a Park Service regulation prohibits the use of hovercrafts on rivers within any federal preserve or park. Sturgeon complied with their order to remove his hovercraft from the Yukon-Charley, thus “heading home without a moose.” Id., at ___ (slip op., at 6). But soon afterward, Sturgeon sued the Park Service, seeking an injunction that would allow him to resume using his hovercraft on his accustomed route. The lower courts denied him relief. This Court, though, thought there was more to be said. See id., at ___–___ (slip op., at 15–16).

As we put the matter then, Sturgeon’s case raises the issue how much “Alaska is different” from the rest of the country—how much it is “the exception, not the rule.” Id., at ___–___ (slip op., at 13–14). The rule, just as the rangers told Sturgeon, is that the Park Service may regulate boating and other activities on waters within national parks—and that it has banned the use of hovercrafts there. See 54 U. S. C. §100751(b); 36 CFR §2.17(e) (2018). But Sturgeon claims that Congress created an Alaska specific exception to that broad authority when it enacted the Alaska National Interest Lands Conservation Act (ANILCA), 94 Stat. 2371, 16 U. S. C. §3101 et seq. In Alaska, Sturgeon argues, the Park Service has no power to regulate lands or waters that the Federal Government does not own; rather, the Service may regulate only what ANILCA calls “public land” (essentially, federally owned land) in national parks. And, Sturgeon continues, the Federal Government does not own the Nation River—so the Service cannot ban hovercrafts there. When we last faced that argument, we disagreed with the reason the lower courts gave to reject it. But we remanded the case for consideration of two remaining questions. First, does “the Nation River qualify as ‘public land’ for purposes of ANILCA”? 577 U. S., at ___ (slip op., at 15). Second, “even if the [Nation] is not ‘public land,’” does the Park Service have authority to “regulate Sturgeon’s activities” on the part of the river in the Yukon-Charley? Id., at ___ (slip op., at 16). Today, we take up those questions, and answer both “no.” That means Sturgeon can again rev up his hovercraft in search of moose.

Reversed and remanded

Dissenting:

Concurring: SOTOMAYOR, J., filed a concurring opinion, in which GINSBURG, J., joined.

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United States Supreme Court

Case Name: Francis V. Lorenzo v. Securities Exchange Commission

Case No.: 17-1077

Focus: False or Misleading Statements – Securities Exchange Act of 1934– Securities Act of 1933

Securities and Exchange Commission Rule 10b–5 makes it unlawful: “(a) To employ any device, scheme, or artifice to defraud, “(b) To make any untrue statement of a material fact . . . , or “(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit . . . in connection with the purchase or sale of any security.” 17 CFR §240.10b–5 (2018).

In Janus Capital Group, Inc. v. First Derivative Traders, 564 U. S. 135 (2011), we examined the second of these provisions, Rule 10b–5(b), which forbids the “making” of “any untrue statement of a material fact.” We held that the “maker of a statement is the person or entity with ultimate authority over the statement, including its content and whether and how to communicate it.” Id., at 142 (emphasis added). We said that “without control, a person or entity can merely suggest what to say, not ‘make’ a statement in its own right.” Ibid. And we illustrated our holding with an analogy: “[W]hen a speechwriter drafts a speech, the content is entirely within the control of the person who delivers it. And it is the speaker who takes credit—or blame—for what is ultimately said.” Id., at 143. On the facts of Janus, this meant that an investment adviser who had merely “participated in the drafting of a false statement” “made” by another could not be held liable in a private action under subsection (b) of Rule 10b–5. Id., at 145.

In this case, we consider whether those who do not “make” statements (as Janus defined “make”), but who disseminate false or misleading statements to potential investors with the intent to defraud, can be found to have violated the other parts of Rule 10b–5, subsections (a) and (c), as well as related provisions of the securities laws, §10(b) of the Securities Exchange Act of 1934, 48 Stat. 891, as amended, 15 U. S. C. §78j(b), and §17(a)(1) of the Securities Act of 1933, 48 Stat. 84–85, as amended, 15 U. S. C. §77q(a)(1). We believe that they can.

Affirmed

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

Concurring:

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