Weekly Case Digests – June 17, 2019 – June 21, 2019

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Mario Ortiz-Santiago

Case No.: 18-3251

Officials: WOOD, Chief Judge, and SCUDDER and ST. EVE, Circuit Judges.

Focus: Immigration – Subject-matter Jurisdiction

Jurisdiction, the Supreme Court has reminded us, “is a word of many, too many meanings.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 90 (1998) (quoting United States v. Vanness, 85 F.3d 661, 663 n.2 (D.C. Cir. 1996). Petitioner Mario Ortiz-Santiago, who is seeking to avoid removal from this country, now asks us to wade into those murky waters. He contends that because the Notice to Appear (“Notice”) sent to him by the Department of Homeland Security (“DHS”) did not have the statutorily required time-and date information for his removal hearing, subject-matter jurisdiction never vested in the Immigration Court. This flaw, he reasons, rendered the Notice so defective that it did not suffice to trigger the Immigration Court’s jurisdiction over his case. Because he never was properly placed in removal proceedings, he concludes, the order of removal that the Immigration Judge entered and the Board of Immigration Appeals affirmed must be vacated.

Ortiz-Santiago is correct that the Notice was procedurally defective, but he overstates the problem. The requirement that a Notice include, within its four corners, the time, date, and place of the removal proceeding is not “jurisdictional” in nature. It is instead the agency’s version of a claim-processing rule, violations of which can be forfeited if an objection is not raised in a timely manner. We thus hold, as have the Second, Sixth, and Ninth Circuits, that an Immigration Court’s jurisdiction is secure despite the omission in a Notice of time and place information. See Banegas Gomez v. Barr, — F.3d —, No. 15-3269, 2019 WL 1768914, at *6–8 (2d Cir. April 23, 2019); Santos-Santos v. Barr, 917 F.3d 486 (6th Cir. 2019); Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019); Hernandez-Perez v. Whitaker, 911 F.3d 305 (6th Cir. 2018). Although we take a different path from those circuits to reach this conclusion, we agree that nothing in Pereira v. Sessions, 138 S. Ct. 2105 (2018), requires a different result. See also Villa Serrano v. Barr, — F.3d —, No. 18-2886, 2019 WL 2052354, at *4 (7th Cir. May 9, 2019) (noting but not deciding this issue). We therefore deny Ortiz-Santiago’s petition for review.

Petition for review denied

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7^th Circuit Court of Appeals

Case Name: Robert McCarty v. Menard, Inc.,

Case No.: 18-3069

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

Focus: Breach of Duty of Care

Robert McCarty tripped over a product display sign at a Menard’s home improvement store and then filed suit. The district court dismissed the case at summary judgment in favor of Menard. Because McCarty has not established that Menard owed him a duty of care, we need not address his causation arguments. See Roh v. Starbucks Corp., 881 F.3d 969, 973 (7th Cir. 2018) (“Under Illinois law, a plaintiff must establish the existence of a duty, the defendant’s breach of that duty, and that the breach proximately caused the plaintiff’s resulting injuries.”). We affirm based on the open and obvious doctrine which implicates the general duty of care owed to business invitees in Illinois.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Barrington Music Products, Inc., v. Music & Arts Center, et al.,

Case No.: 18-2945

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

Focus: Trademark Infringement – Damages

Barrington Music Products (Barrington) sued Music & Arts Centers (Music & Arts), Guitar Center Stores, Inc. (Guitar Center), Woodwind & Brasswind Inc. (Woodwind), and Eastman Music Company (Eastman), for infringing on Barrington’s “Vento” trademark with their use of the trademark “Ventus.” After being awarded damages for sales made through eponymous Guitar Center stores only, Barrington moved to amend the judgment to include sales from Music & Arts and Woodwind in the damage calculation. The district court denied Barrington’s motion and for the reasons that follow, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Mohsin Yafai, et al. v. Mike Pompeo, et al.

Case No.: 18-1205

Officials: WOOD, Chief Judge, and FLAUM, EASTERBROOK, KANNE, ROVNER, SYKES, HAMILTON, BARRETT, BRENNAN, SCUDDER, and ST. EVE, Circuit Judges.

Focus: Petition for Rehearing En Banc

On February 15, 2019, plaintiffs‐appellants filed a petition for rehearing and rehearing en banc. The panel voted to deny rehearing, and a majority of the judges in active service voted to deny rehearing en banc. Chief Judge Wood and Judges Rovner and Hamilton voted to grant rehearing en banc. It is therefore ordered that the petition for rehearing and for rehearing en banc is DENIED.

Denied

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7^th Circuit Court of Appeals

Case Name: Mary Madison v. United States Department of Labor, et al.

Case No.: 18-1800

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

Focus: ALJ Error – Appeal Timeliness

Following her discharge from Kenco Logistics (“Kenco”), Mary Madison filed a complaint with the Occupational Safety and Health Administration (“OSHA”) charging that she was terminated in retaliation for engaging in protected activity. OSHA dismissed her complaint, and in a subsequent de novo proceeding conducted at Madison’s request, an administrative law judge (“ALJ”) entered a summary decision against her. Madison asked the Department of Labor’s Administrative Review Board (“ARB” or the “Board”) to review the ALJ’s decision, but the Board dismissed her appeal as untimely. Madison now seeks review in this court. Finding no error in the Board’s decision as to the timeliness of Madison’s appeal to the Board, we deny the petition for review.

Petition Denied

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7^th Circuit Court of Appeals

Case Name: Christopher Coleman v. City of Peoria, Illinois, et al.

Case No.: 18-1742

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

Focus: Sufficiency of Evidence

Almost twenty‐five years ago, a jury convicted Christopher Coleman of armed robbery, home invasion, residential burglary, and aggravated sexual assault. Three witnesses linked Coleman to the crimes, and their identifications were the key evidence leading to his conviction. The court sentenced Coleman to sixty years’ imprisonment.  Fifteen years later, a group of men came forward claiming they were responsible for the crimes. Based on this new evidence, the Illinois Supreme Court ultimately vacated Coleman’s convictions and remanded for retrial. People v. Coleman, 996 N.E.2d 617 (Ill. 2013). Rather than retry the case, the prosecution decided to drop it. After nineteen years behind bars, Coleman was released in 2013, and a later judicial order certified his innocence.

Coleman has now sued the City of Peoria and four police officers—Patrick Rabe, Terry Pyatt, Timothy Anderson, and Michael Ford—accusing them of constitutional violations and state torts. Specifically, Coleman contends defendants elicited a false statement from an alleged accomplice through coercive interrogation techniques, employed improper and unduly suggestive identification procedures, and suppressed impeachment evidence. After three years of civil litigation, the district court granted defendants summary judgment on Coleman’s federal claims and state law malicious prosecution claim, and it relinquished supplemental jurisdiction over his remaining state law claims.

We agree with the district court’s summary judgment decision and affirm. Coleman failed to present evidence supporting a reasonable inference that defendants knowingly fabricated false evidence, caused unreliable eyewitness identifications to taint his criminal trial, withheld material evidence, or arrested him without probable cause.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Jessica D. Smith, et al.

Case No.: 2017AP1526

Officials: Brennan, Brash and Dugan, JJ.

Focus: Personal Jurisdiction

Dwayne K. Pearson, pro se, appeals the circuit court’s order denying his motion to vacate and/or modify prior court orders pertaining to his two children. Pearson argues that: (1) the State did not have authority to commence legal proceedings against him because it is not a real party in interest; and (2) the circuit court did not have personal jurisdiction over him. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Traci L. Kollross

Case No.: 2018AP931-CR

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

Focus: OWI – 2^nd Offense

Traci L. Kollross appeals a non-final order of the circuit court which denied her motion to dismiss a charge of operating while intoxicated (OWI) as a second offense. We reverse and remand the matter for proceedings consistent with this opinion.

Recommended for Publication

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WI Court of Appeals – District II

Case Name: Thomas D. Sykes, et al. v. Village of Summit, et al.

Case No.: 2017AP2402

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

Focus: Adverse Possession

Thomas D. Sykes and the other named plaintiffs (the Islanders) appeal an order granting summary judgment in favor of the Village of Summit and the Village’s Chief of Police Michael Hartert (collectively, Summit) and the Wisconsin Department of Natural Resources and the State of Wisconsin (collectively, the DNR) and dismissing all of the Islanders’ claims and causes of action. We affirm.

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WI Court of Appeals – District III

Case Name: Barron County Department of Health and Human Services v. S.R.T.

Case No.: 2018AP1574; 2018AP1575

Officials: HRUZ, J.

Focus: Termination of Parental Rights

Simon appeals circuit court orders involuntarily terminating his parental rights to his twin sons, Austin and Anthony. He argues the court erred when it entered default judgments finding that grounds existed to terminate his parental rights. Simon also asserts that the proceedings violated his right to due process because they were fundamentally unfair. Finally, he contends the court erred when it denied his post disposition motion to vacate both default judgments. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. T.J.B.

Case No.: 2018AP2449

Officials: NEUBAUER, C.J.

Focus: Abuse of Discretion – Sufficiency of Evidence

T.J.B. appeals from an order granting the State’s motion waiving juvenile jurisdiction for a delinquency petition filed against him. T.J.B. argues the court erroneously exercised its discretion when it failed to sufficiently consider evidence related to the statutory criteria for waiver and that certain of the court’s findings were unsupported by the record. Because the court examined relevant evidence and used a rational process of applying that evidence to the criteria listed in WIS. STAT. § 938.18(5), we conclude the court properly considered the interests of the juvenile and the public and exercised its discretion without error. We affirm.

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WI Court of Appeals – District IV

Case Name: Amber DeGraff, et al. v. Jeffrey S. Skatrud, et al.

Case No.: 2017AP2340

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

Focus: Governmental Immunity

Amber DeGraff and Michael DeGraff appeal orders dismissing their complaint and awarding costs to the respondent defendants. The issues relate to governmental immunity and whether the defendants waived costs by not including language about costs in the dismissal order. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Syed K. Rizvi

Case No.: 2018AP316-CR

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

Focus: Ineffective Assistance of Counsel

Syed Rizvi appeals a judgment convicting him of first degree reckless injury and aggravated battery, as a party to the crime in each instance. Rizvi also appeals the circuit court’s order denying both his postconviction motion to set aside the judgment and his motion to modify the sentence. Rizvi argues that the circuit court erred in rejecting, without an evidentiary hearing, Rizvi’s post-conviction claim that Rizvi’s trial counsel was ineffective for failing to call a witness who averred, after trial, to facts that contradict part of the testimony of a key witness called by the State. We reject this argument because Rizvi fails to allege facts that, if true, show that he was prejudiced by failure of his counsel to call the witness.

Rizvi also argues that the court erred in denying his sentence modification motion, which involves an alleged disparity between the sentences given to Rizvi and another individual. We reject this argument on the ground that Rizvi fails to show that the sentence given to the other individual was highly relevant to Rizvi’s sentence. Accordingly, we affirm.

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WI Court of Appeals – District IV

Case Name: HSBC Bank USA National Association v. Steven R. Lisse, et al.

Case No.: 2018AP557

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

Focus: Evidentiary Hearing

Steven and Sondra Lisse appeal an order of the circuit court granting confirmation of sale and denying their motion for relief from the judgment of foreclosure. The Lisses sought relief from the final judgment on the basis that they obtained an expert report, after the judgment was entered, opining that the promissory note that HSBC Bank presented to the circuit court was a forgery and, therefore, that HSBC obtained the judgment through fraud. The Lisses make two arguments. First, they contend that they were entitled to relief from the judgment under WIS. STAT. § 806.07(1)(g) (2017-18). Second, the Lisses argue that they were entitled to an evidentiary hearing under § 806.07(1)(h), which would have given them an opportunity to prove that they were entitled to relief from the judgment. We affirm the circuit court.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Everett J. Barr

Case No.: 2018AP1383-CR

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

Focus: Search Warrant – Probable Cause 

Everett Barr appeals a judgment of conviction for possession of drug paraphernalia to manufacture methamphetamine and bail jumping. Barr contends that the search warrant that police executed to obtain evidence was not supported by probable cause. For the reasons set forth in this opinion, we conclude that the search warrant was supported by probable cause. We affirm.

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WI Court of Appeals – District IV

Case Name: Deborah L. O’Neal v. Daniel L. Yoakum

Case No.: 2018AP1793

Officials: BLANCHARD, J.

Focus: Witness Credibility

Deborah O’Neal, pro se, appeals a money judgment against her in the amount of $180, in favor of Daniel Yoakum, in this small claims action. Yoakum fails to file a responsive brief.  O’Neal initiated this action against Yoakum, seeking a money judgment on the ground that she used one of her credit cards to purchase a refrigerator and stove for his use, after the two agreed that he would pay her back, and that he has refused to pay all that he owes on this alleged agreement.

O’Neal fails to develop a clear legal argument of any kind. But I now address my best understandings of what she intends to argue. A number of potential arguments all fail because they involve allegations or positions that O’Neal failed to support with evidence before the circuit court or that she failed to argue clearly to the circuit court. O’Neal suggests that the circuit court “would not allow” O’Neal to pursue a pertinent topic, and flatly asserts that “the Circuit Court favored Mr. Yoakum.” These arguments are completely unsupported. O’Neal references trial testimony that could support a finding that Yoakum planned the purchase of the appliances, without her knowledge, well in advance of the date of the purchase, which she suggests undermines the testimony that she gifted the appliances to Yoakum. But in referencing what she calls Yoakum’s “premediation” to make the purchases, O’Neal fails to explain how any such alleged “premediation”—even if it had been found to be true by the circuit court—would undermine Yoakum’s theory that O’Neal agreed, at or around the time of their joint visit to the Sears store, to buy the appliances as gifts for Yoakum.

The remaining potential arguments appear to boil down to the following: the circuit court should have fully credited pertinent testimony of O’Neal and the witness that she called, and should have given no weight to pertinent testimony of Yoakum and the witnesses that he called. These suggestions all fail for at least the reason that O’Neal fails to take into account the fact that circuit courts, not appellate courts, determine the credibility of witnesses and the weight to be accorded their testimony, due in part to the unique opportunity of circuit courts to observe the demeanor and persuasiveness of each witness. See Lessor v. Wangelin, 221 Wis. 2d 659, 665, 586 N.W.2d 1 (Ct. App. 1998). I affirm.

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WI Court of Appeals – District IV

Case Name: Village of McFarland v. Dale R. Meyer

Case No.: 2018AP2130

Officials: LUNDSTEN, P.J.

Focus: OWI – Refusal of Blood Test

Dale Meyer appeals the circuit court’s judgment, entered following a jury trial, convicting him of operating a motor vehicle while under the influence of an intoxicant as a first offense and improper stop at a stop sign. He also challenges an order finding that he unreasonably refused to submit to blood alcohol testing. As best I can tell, Meyer argues that the judgment of conviction and refusal order should both be vacated because, in both proceedings, the attorney for the Village of McFarland showed an altered version of the squad car video of the stop. I disagree and affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Kelly W. Brown

Case No.: 2018AP2382-CR

Officials: KLOPPENBURG, J.

Focus: OWI – Reasonable Suspicion

Kelly Brown appeals a judgment entered on his no-contest plea to operating while intoxicated (OWI), second offense, and an order denying his motion to reconsider the circuit court’s ruling denying his motion to suppress evidence. He challenges whether the officer had reasonable suspicion to believe that Brown’s vehicle was operating on a highway with more than four headlamps lit in violation of WIS. STAT. § 347.07(1), which provides that “not more than a total of 4 [lamps] on the front of [a] vehicle shall be lighted at any one time when [the] vehicle is upon a highway.” I conclude that the circuit court properly denied the motion to reconsider and accordingly affirm.

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WI Court of Appeals – District IV

Case Name: Grant County v. Dale T. Andrejczak

Case No.: 2019AP285

Officials: KLOPPENBURG, J.

Focus: Sufficiency of Evidence

The circuit court found Dale Andrejczak guilty of obstructing an officer following a trial to the court. Andrejczak appeals, pro se, arguing that the evidence was insufficient to support the finding of guilt. I affirm.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Office of Lawyer Regulation vs. Daniel W. Morse

Case No.: 2019 WI 53

Focus: Attorney Disciplinary Proceedings

Attorney Daniel W. Morse has appealed a report filed by Referee James W. Mohr, Jr., concluding that Attorney Morse committed four counts of professional misconduct and recommending that his license to practice law in Wisconsin be suspended for two years. In his appeal, Attorney Morse challenges only the referee’s recommended sanction. Attorney Morse argues that his misconduct warrants a public reprimand or, at most, a 60-day suspension.

Upon careful review of this matter, we uphold the referee’s findings of fact and conclusions of law. We conclude, however, that rather than the two-year suspension recommended by the referee, a one-year suspension of Attorney Morse’s license to practice law is an appropriate sanction for the misconduct at issue. In addition, we find it appropriate to follow our usual custom of imposing the full costs of this proceeding, which are $11,038.85 as of December 18, 2018, on Attorney Morse. The Office of Lawyer Regulation (OLR) notes that Attorney Morse has already made restitution and it is not seeking an additional restitution award.

Attorney’s license suspended

Concur:

Dissent:

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WI Supreme Court

Case Name: Portage County v. J.W.K.

Case No.: 2019 WI 54

Focus: Sufficiency of Evidence

An issue is moot when its resolution will have no practical effect on the underlying controversy. In this review of a Chapter 51 recommitment order, we consider whether J.W.K.’s sufficiency-of-the-evidence challenge to the 2016 order extending his commitment is rendered moot because the 2016 order expired after the court extended his commitment in 2017 under a separate order. Reversing the expired 2016 order for insufficient evidence would have no effect on subsequent recommitment orders because later orders stand on their own under the language of the statute. We therefore hold that J.W.K.’s sufficiency challenge is moot, and we affirm the court of appeals’ decision dismissing the appeal.

Affirmed

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

Dissent:

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WI Supreme Court

Case Name: Wisconsin Judicial Commission v. The Honorable Michael J. Piontek

Case No.: 2019 WI 51

Focus: Judicial Misconduct

We review, pursuant to Wis. Stat. § 757.91 (2015-2016), a Judicial Conduct Panel’s findings of fact, conclusions of law, and recommendation for discipline for Racine County Circuit Court Judge Michael J. Piontek. The Judicial Commission filed a complaint against Judge Piontek on June 5, 2018, alleging that he had engaged in judicial misconduct by his actions in presiding over two different criminal matters. Judge Piontek filed a response to the complaint in which he generally admitted the allegations but alleged various mitigating circumstances. At the time of the events in question, Judge Piontek had been a circuit court judge for Racine County for about two years. Before assuming the bench, Judge Piontek was a practicing lawyer for about 38 years, including time as a county prosecutor. Until this disciplinary matter, he had never been the subject of a complaint or grievance as an attorney or judge.

Consistent with an order issued by the Judicial Conduct Panel, the parties filed briefs on the issue of the appropriate discipline to be imposed. After receiving these briefs, the panel made findings of fact and conclusions of law and recommended that this court suspend Judge Piontek between five and 15 days. This recommendation exceeded the disciplinary sanction that Judge Piontek suggested in his brief to the panel: a public reprimand. The panel’s recommendation more closely followed the sanction proposed by the Judicial Commission, which suggested discipline ranging from a reprimand to a short suspension.

We conclude that a five-day suspension is the appropriate discipline for Judge Piontek’s judicial misconduct.

Judge suspended from office

Concur:

Dissent:

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WI Supreme Court

Case Name: Office of Lawyer Regulation v. James Edward Hammis

Case No.: 2019 WI 55

Focus: Attorney Disciplinary Hearing

Attorney James Edward Hammis has appealed a report filed by Referee Lisa C. Goldman accepting concessions Attorney Hammis made in a stipulation with the Office of Lawyer Regulation (OLR) that he committed 40 counts of professional misconduct and recommending that his license to practice to law in Wisconsin be revoked. In his appeal, Attorney Hammis primarily challenges the sanction recommendation and asserts that an appropriate sanction would be a suspension of his license to practice law in the range of one year.

Upon careful review of this matter, we uphold all of the referee’s findings of fact and conclusions of law. We conclude, however, that the facts of this case do not warrant revocation. Instead, we conclude that a three-year suspension of Attorney Hammis’ law license is an appropriate sanction for the misconduct at issue. We also deem it appropriate to impose certain conditions upon the reinstatement of his law license. We also order him to pay $400 in restitution to one former client and, as is our usual custom, we impose the full costs of this proceeding, which are $13,160.22 as of March 4, 2019 on Attorney Hammis.

Attorney license suspended

Concur:

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

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WI Supreme Court

Case Name: J. Steven Tikalsky v. Susan Friedman, et al.

Case No.: 2019 WI 56

Focus: Inheritance – Constructive Trust

In a vigorous dispute over the distribution of Donald and Betty Lou Tikalsky’s estate, J. Steven Tikalsky sued his sister, Terry Stevens, to obtain part of the inheritance she received from their parents. His Complaint contains a count labeled “constructive trust,” which he deployed against his sister as a cause of action. Terry Stevens asks us whether a “constructive trust” may play that role, and whether it may be used against those who have engaged in no inequitable behavior. We hold that a constructive trust is a remedy, not a cause of action. We also hold that, under the proper circumstances, a constructive trust may be imposed on property in the possession of one who is wholly innocent of any inequitable conduct. But because the Complaint in this case does not state a cause of action against Terry Stevens, nor assert any other grounds upon which a constructive trust could be imposed, the circuit court properly dismissed her from the case with prejudice. We reverse the court of appeals’ decision reversing the circuit court.

Reversed

Concur: ZIEGLER, J. concurs (opinion filed).

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

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WI Supreme Court

Case Name: Cacie M. Michels v. Keaton L. Lyons, et al.

Case No.: 2019 WI 57

Focus: Statutory Interpretation – Grandparent Visitation

We accepted certification from the court of appeals to clarify the standard of proof required for a grandparent to overcome the presumption that a fit parent’s visitation decision is in the child’s best interest. We further resolve an interrelated challenge to the constitutionality of Wis. Stat. § 767.43(3)(2015-16), (the “Grandparent Visitation Statute”) as applied to a circuit court order granting a petition for visitation over the objection of two fit parents.

We recognize that a fit parent has a fundamental liberty interest in the care and upbringing of his or her child and therefore, the Grandparent Visitation Statute must withstand strict scrutiny. We confirm that the Grandparent Visitation Statute is facially constitutional because there are circumstances under which the law can be constitutionally enforced. We determine that the Grandparent Visitation Statute is narrowly tailored to further a compelling state interest because a grandparent must overcome the presumption in favor of a fit parent’s visitation decision with clear and convincing evidence that the decision is not in the child’s best interest. Lastly, we conclude that the Grandparent Visitation Statute is unconstitutional as applied because Kelsey did not overcome the presumption in favor of Lyons and Michels’ visitation decision with clear and convincing evidence that their decision is not in A.A.L.’s best interest. The order of the circuit court is vacated.

Vacated

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

Dissent:

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Supreme Court Digests

United States Supreme Court

Case Name: Merck Sharp, et al. v. Doris Albrecht, et al.

Case No.: 17-290

Focus:

When Congress enacted the Federal Food, Drug, and Cosmetic Act, ch. 675, 52 Stat. 1040, as amended, 21 U. S. C. §301 et seq., it charged the Food and Drug Administration with ensuring that prescription drugs are “safe for use under the conditions prescribed, recommended, or suggested” in the drug’s “labeling.” §355(d). When the FDA exercises this authority, it makes careful judgments about what warnings should appear on a drug’s label for the safety of consumers.

For that reason, we have previously held that “clear evidence” that the FDA would not have approved a change to the drug’s label pre-empts a claim, grounded in state law, that a drug manufacturer failed to warn consumers of the change-related risks associated with using the drug. See Wyeth v. Levine, 555 U. S. 555, 571 (2009). We here determine that this question of pre-emption is one for a judge to decide, not a jury. We also hold that “clear evidence” is evidence that shows the court that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug’s label to include that warning.

Vacated and remanded

Dissenting:

Concurring: THOMAS, J., filed a concurring opinion. ALITO, J., filed an opinion concurring in the judgment, in which ROBERTS, C. J., and KAVANAUGH, J., joined.

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United States Supreme Court

Case Name: Clayvin Herrera v. Wyoming

Case No.: 17-532

Focus: Indian Law – Invocation of Treaty Rights

In 1868, the Crow Tribe ceded most of its territory in modern-day Montana and Wyoming to the United States. In exchange, the United States promised that the Crow Tribe “shall have the right to hunt on the unoccupied lands of the United States so long as game may be found thereon” and “peace subsists . . . on the borders of the hunting districts.” Treaty Between the United States of America and the Crow Tribe of Indians (1868 Treaty), Art. IV, May 7, 1868, 15 Stat. 650. Petitioner Clayvin Herrera, a member of the Tribe, invoked this treaty right as a defense against charges of off-season hunting in Bighorn National Forest in Wyoming. The Wyoming courts held that the treaty-protected hunting right expired when Wyoming became a State and, in any event, does not permit hunting in Bighorn National Forest because that land is not “unoccupied.” We disagree. The Crow Tribe’s hunting right survived Wyoming’s statehood, and the lands within Bighorn National Forest did not become categorically “occupied” when set aside as a national reserve.

Vacated and remanded

Dissenting: ALITO, J., filed a dissenting opinion, in which ROBERTS, C. J., and THOMAS and KAVANAUGH, JJ., joined.

Concurring:

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United States Supreme Court

Case Name: Mission Product Holdings, Inc. v. Tempnology, LLC,

Case No.: 17-1657

Focus: Bankruptcy – Breach of Contract

Section 365 of the Bankruptcy Code enables a debtor to “reject any executory contract”—meaning a contract that neither party has finished performing. 11 U. S. C. §365(a). The section further provides that a debtor’s rejection of a contract under that authority “constitutes a breach of such contract.” §365(g). Today we consider the meaning of those provisions in the context of a trademark licensing agreement. The question is whether the debtor-licensor’s rejection of that contract deprives the licensee of its rights to use the trademark. We hold it does not. A rejection breaches a contract but does not rescind it. And that means all the rights that would ordinarily survive a contract breach, including those conveyed here, remain in place.

Reversed and remanded

Dissenting: SOTOMAYOR, J., filed a concurring opinion. GORSUCH, J., filed a dissenting opinion.

Concurring:

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