Weekly Case Digests – July 1, 2019 – July 5, 2019

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Fidelity and Deposit Company of Maryland v. Edward E. Gillen Company

Case No.: 18-2144; 18-3446

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

Focus: Quia Timet Claims

Although linguists call Latin a “dead language,” legal nomenclature dies hard. This case presents a surety’s claim for quia timet—equitable protection from probable future harm. The surety (an insurance company) is suing its principal (a construction company) that allegedly went belly up on a government project. The ancient equitable doctrine of quia timet remains viable into the 21st century, but the surety’s claim in this case is a dead letter. We affirm summary judgment for Gillen on the merits and dismiss Fidelity’s challenge to the costs taxed by the clerk of court.

Affirmed in part. Dismissed in part.

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7^th Circuit Court of Appeals

Case Name: United States of America v. Herman D. Adair

Case No.: 18-2796

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

Focus: 4^th Amendment Violation

Officer Curtis Squires received a crime-in-progress notification while patrolling in Bloomington, Illinois during the late evening hours of September 21, 2017. More details followed. The 911 operator informed Officer Squires that a caller from the Tracy Drive Apartments reported a group of persons outside her apartment engaged in suspicious activity. The caller added that a short black male wearing a hoodie had a gun in his front pocket. Arriving moments later, Officer Squires saw the group, approached to see what was going on, and observed that Herman Adair roughly fit the 911 caller’s description and had a large bulge in his front pants’ pocket. Adair sought to evade Officer Squires by moving and weaving throughout the larger group—trying to put others between Officer Squires and himself. Officer Squires then stopped and patted down Adair, finding a gun in his front pocket. The district court concluded that all of this respected the Fourth Amendment. We agree and affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Common Cause Indiana, et al. v. Marion County Election Board, et al.

Case No.: 18-2735

Officials: FLAUM, KANNE, and SYKES, Circuit Judges.

Focus: Vacatur of Consent Decree

Indiana counties must maintain a three‐member election board, made up of the circuit court clerk and two individuals the clerk appoints, one “from each of the major political parties of the county.” Ind. Code § 3‐6‐ 5‐2. The board makes various decisions about a county’s voting system, including rules for in‐person early voting.  In May 2017, Common Cause Indiana, the Greater Indianapolis Branch of the NAACP, and two Marion County registered voters sued the Board and its members in their official capacities pursuant to 42 U.S.C. § 1983. Plaintiffs alleged the Board’s decision to not approve in‐person early voting satellite offices from 2010 to 2016—and more specifically, the application of the Satellite Office Provision’s unanimity requirement and the Republican Board member’s decision to withhold consent—burdened voters’ rights to cast early votes without any relationship to a legitimate government interest, in violation of the First and Fourteenth Amendments and Section 2 of the Voting Rights Act of 1965. Indiana moved to intervene, arguing plaintiffs’ complaint “calls into question the federal and state constitutional validity” of the Satellite Office Provision. The district court issued a conditional grant, allowing Indiana to attend a settlement conference, challenge a settlement agreement at a fairness hearing, and seek permission to appeal any approved settlement.

Indiana does not believe the appeal is moot because the Consent Decree is still in effect. It contends the district court did not have authority to enter the Consent Decree in the first place and therefore asks that we vacate the Decree on the merits. However, Indiana “does not disagree with the Board and Common Cause that, under the Board’s new vote center plan, the consent decree is unnecessary.” It acknowledges that its “main objective with [its] appeal is vacatur of the consent decree,” and “whether that occurs because the State prevails on the merits, because the case is moot, or merely because the parties voluntarily agree to vacatur is unimportant.” And at oral argument, Indiana reiterated this view, stating that “as long as the Consent Decree is vacated, [it] will be happy with that end result.”

In short, Indiana asks us to vacate the Decree, while joint‐ appellees ask us to remand to the district court with instructions to vacate. Though the result they seek differs slightly, in essence, they seek the same relief: a vacatur of the Consent Decree. Indeed, at oral argument, the Board’s counsel recognized that “whether the district court is ordered to vacate the Consent Decree or this Court vacates the Consent Decree on its own … makes no practical difference.” Because both sides ultimately agree that the Decree should no longer be in effect, we have no need to address whether the district court had authority to enter the Decree. And we need not remand the case to the district court for vacatur. Given our authority to vacate district court judgments—including consent decrees—we can and should vacate the Decree ourselves. See 28 U.S.C. § 2106; cf. Frank v. Walker, 819 F.3d 384, 385 (7th Cir. 2016) (citing United States v. Munsingwear, Inc., 340 U.S. 36 (1950)).  Accordingly, we VACATE the Consent Decree and REMAND to the district court with instructions to dismiss the case

Decision

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7^th Circuit Court of Appeals

Case Name: United States of America v. Demontae Bell

Case No.: 17-3505

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

Focus: Probable Cause – Suppression of Evidence

Mark Turner persuaded Demontae Bell to help him sell several stolen firearms. When Turner later ran into trouble with the law, he cooperated with law enforcement, provided information about the sale, and aided the government in targeting Bell. As a result, Bell was arrested.

Upon Bell’s arrest, an officer opened Bell’s flip phone and viewed a photograph of a firearm on the home screen in what was likely an unconstitutional search. Yet the district court declined to suppress the evidence obtained from the phone because the government subsequently obtained valid search warrants for it. Bell challenges this suppression decision on appeal. Bell also argues that his statutory and constitutional rights to a speedy trial were violated due to continuances granted by the district court and the nearly two‐year delay between his indictment and trial.

We conclude that the search warrants were supported by probable cause and that Bell’s speedy trial rights were not violated. We therefore affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Julio Cesar Najera-Rodriguez v. William P. Barr

Case No.: 18-2416

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

Focus: Immigration – Removal Order

Petitioner Julio Cesar Najera-Rodriguez is a lawful permanent resident of the United States. In 2016, an Illinois state court convicted him of unlawful possession of several Xanax pills without a prescription. Federal law provides in relevant part that any non-citizen, including a lawful permanent resident, is removable if he is convicted of a federal or state crime “relating to a controlled substance (as defined in section 802 of title 21).” 8 U.S.C. § 1227(a)(2)(B)(i). Whether the Xanax possession conviction made Najera-Rodriguez removable depends on whether the Illinois criminal law under which he was convicted, 720 ILCS 570/402(c), is “divisible” for purposes of applying the “modified categorical approach” under the elaborate and sometimes technical body of law that has developed under federal recidivism statutes and their immigration law analogs. See, e.g., Mejia Galindo v. Sessions, 897 F.3d 894, 896 (7th Cir. 2018) (summarizing “categorical” and “modified categorical” approaches and “divisibility” as applied to removal of lawful permanent resident under § 1227(a)(2)(B)(i)), citing Mellouli v. Lynch, 135 S. Ct. 1980, 1986–87 & n.3 (2015) (holding that categorical method applies to questions under § 1227(a)(2)(B)(i)). As we explain below, 720 ILCS 570/402(c) is not divisible, so Najera-Rodriguez’s conviction does not render him removable. We therefore grant his petition for judicial review, vacate the removal order, and remand this case to the Board of Immigration Appeals.

Petition Granted. Vacated and Remanded

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7^th Circuit Court of Appeals

Case Name: Paula Casillas v. Madison Avenue Associates, Inc.

Case No.: 17-3162

Officials: SYKES and BARRETT, Circuit Judges, and DURKIN, District Judge.

Focus: FDCPA Violation

The bottom line of our opinion can be succinctly stated: no harm, no foul. Madison Avenue Associates, Inc. made a mistake. The Fair Debt Collection Practices Act requires debt collectors to notify consumers about the process that the statute provides for verifying a debt. Madison sent Paula Casillas a debt‐collection letter that described the process, but it neglected to specify that she had to communicate in writing to trigger the statutory protections. Casillas noticed the omission and filed a class action against Madison.

The only harm that Casillas claimed to have suffered, however, was the receipt of an incomplete letter—and that is insufficient to establish federal jurisdiction. As the Supreme Court emphasized in Spokeo, Inc. v. Robins, Casillas cannot claim “a bare procedural violation, divorced from any concrete harm, and satisfy the injury‐in‐fact requirement of Article III.” 136 S. Ct. 1540, 1549 (2016). Article III grants federal courts the power to redress harms that defendants cause plaintiffs, not a freewheeling power to hold defendants accountable for legal infractions. Because Madison’s violation of the statute did not harm Casillas, there is no injury for a federal court to redress.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Janice LaRiviere v. Board of Trustees of Southern Illinois University, et al.

Case No.: 18-3188

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

Focus: Wrongful Termination

Janice LaRiviere is an African‐ American woman who worked at Southern Illinois University–Edwardsville (“SIUE”) for fifteen years. After several conflicts with coworkers, LaRiviere was notified that she would not be reappointed to her position. Immediately afterwards, she was transferred to a new office with less than satisfactory conditions. She sued SIUE and her supervisors. The district court granted summary judgment for defendants on all claims. Because LaRiviere has not identified evidence that her ethnicity was the reason for her termination or of a causal connection between protected activity and her termination, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Edward Acevedo v. Cook County Officers Electoral Board, et al.

Case No.: 18-2979

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

Focus: Signature Requirement – Constitutionality – Strict Scrutiny

Before Edward Acevedo could appear on the 2018 Democratic primary ballot for Cook County Sheriff, he had to obtain a certain number of voter signatures on a nominating petition. He didn’t meet the signature requirement, so he was kept off the ballot. He then sued the Chicago, Cook County, and Illinois electoral boards, arguing that he Cook County signature requirement is unconstitutional because it is more onerous than the signature requirement for statewide offices. According to Acevedo, the comparatively higher county requirement can survive only if it is narrowly tailored to advance a compelling state interest.

Acevedo is wrong. Strict scrutiny is not triggered by the existence of a less burdensome restriction—it is triggered only when the challenged regulation itself imposes a severe burden. Because Acevedo has not alleged that the burden imposed by the Cook County signature requirement is severe, the defendants need not show any justification for it beyond Illinois’s interest in orderly and fair elections. That interest easily justifies the signature requirement here.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Paul Huskisson

Case No.: 18-1335

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

Focus: Warrantless Search – Exclusionary Rule

Paul Huskisson appeals his conviction for possession with intent to distribute methamphetamine. He argues government agents illegally obtained the drug evidence used to convict him when they raided his house without a warrant and saw drugs in his kitchen. The government concedes the illegal entry, but counters that a later-issued search warrant rendered the drug evidence admissible. We consider whether after the illegal entry the exclusionary rule applies to the methamphetamine found in Huskisson’s house.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. John Buncich

Case No.: 18-1216

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

Focus: Sufficiency of Evidence

John Buncich was the Sheriff of Lake County, Indiana. He was charged by a grand jury with five counts of wire fraud and one count of accepting bribes. He was found guilty on all six counts. Buncich argues on appeal that the government failed to introduce sufficient evidence to convict on the five wire fraud counts. Buncich also argues that the district court erred in admitting Exhibit 49.2, a chart showing $58,100 in cash deposits intoBuncich’s jointly‐held bank account.Buncich also appeals admission of the testimony of IRS Agent Gerard Hatagan in laying a foundation for the chart and testifying that deposits with no explained source were likely from criminal activity.We vacate his conviction on Counts I‐III, affirm as to Counts IV‐VI, and remand for resentencing.

Vacated and remanded in part. Affirmed in part.

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7^th Circuit Court of Appeals

Case Name: Tracy D. Shipman v. United States of America

Case No.: 17-3476

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

Focus: Sentencing Guidelines

Tracy Shipman appeals the district court’s denial of his petition for collateral postconviction relief under 28 U.S.C. § 2255. When Shipman pleaded guilty to drug charges in 2003, the district court sentenced him under the then-mandatory Sentencing Guidelines. Because Shipman had three prior “crime of violence” felony convictions, the district court sentenced him as a “career offender.” U.S.S.G. § 4B1.1 (2002). The career-offender provision of the Guidelines defined a “crime of violence” in U.S.S.G. § 4B1.2(a)(1)–(2). Two passages in that guideline are at issue here: the enumerated-offenses clause, and the residual clause.

On appeal, Shipman argues the Guidelines’ residual clause is unconstitutionally vague. We agree, a conclusion that follows directly from our decision in Cross v. United States, 892 F.3d 288 (7th Cir. 2018). Indeed, Cross abrogated the rationale supporting the district court’s dismissal of Shipman’s petition for collateral relief. With that issue resolved, the case hits a snag: the record does not conclusively show whether Shipman was sentenced under the residual clause or the enumerated-offenses clause. We therefore remand this case for further proceedings on the merits of Shipman’s § 2255 petition.

Vacated and remanded

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7^th Circuit Court of Appeals

Case Name: Jessica Smith, et al. Simm Associates, Inc.

Case No.: 18-3350; 19-1155

Officials: FLAUM, KANNE, and SYKES, Circuit Judges.

Focus: FDCPA Violation

This is the consolidated appeal of two actions under the Fair Debt Collection Practices Act, 15 U.S.C. § 1601 et seq. In both cases, debt collector Simm Associates, Inc. sent debtors a form letter stating the name of the “original creditor”—Comenity Capital Bank—and the “client”—PayPal Credit. Debtors sued, alleging the letters violate § 1692g(a)(2) because they fail to identify the name of the creditor to whom the debt is currently owed. The district courts granted summary judgment for the debt collector. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Larry E. Hatfield v. William P. Barr

Case No.: 18-2385

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

Focus: Sentencing Guidelines

A person “who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year” is forbidden to possess a firearm. 18 U.S.C. §922(g)(1). When holding in District of Columbia v. Heller, 554 U.S. 570, 635 (2008), that the Second Amendment to the Constitution protects “the right of law‐ abiding, responsible citizens to use arms in defense of hearth and home”, the Court added that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons” (id. at 626). McDonald v. Chicago, 561 U.S. 742, 786 (2010) (plurality opinion), “repeat[s Heller’s] assurances” that felon‐dispossession statutes are valid. Notwithstanding these statements, a district judge concluded in this suit that §922(g)(1) violates the Second Amendment by preventing nonviolent felons from possessing guns. Hatfield v. Sessions, 322 F. Supp. 3d 885 (S.D. Ill. 2018). We recently held otherwise, see Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019), and conclude that Kanter governs this appeal as well.

Kanter was convicted of mail fraud, 18 U.S.C. §1341, for bilking the Medicare program. He was sentenced to 366 days in prison. After release he contended that §922(g)(1) is invalid, as applied to him, because fraud is not a violent crime, and his conviction therefore does not portend misuse of fire‐ arms. We rejected that contention—not just because it appears to be inconsistent with the Supreme Court’s statements but also because fraud is a thought‐out crime that demonstrates disdain for the rights of others and disrespect for the law. Hatfield contends that his crime is less serious than Kanter’s because he was sentenced to three years’ probation rather than imprisonment. That’s true, but the kind of crime is the same: fraud to get federal benefits to which the applicant was not entitled. Hatfield applied for and received benefits from the Railroad Retirement Board, representing that he was unemployed. In fact he was still working. His false statements violated 18 U.S.C. §1001(a).

Hatfield, who has not tried to show that it is possible to say whether he, and others like him, are to a constitutionally dispositive degree less dangerous than other felons, must accept that the Supreme Court’s norm applies to him. He is not entitled to possess firearms.

Reversed

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7^th Circuit Court of Appeals

Case Name: Humberto Trujillo v. Rockledge Furniture LLC, dba Ashley Furniture

Case No.: 18-3349; 19-1651

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

Focus: EEOC Claim – Business Name

This appeal is about business names and when an employee’s error in naming his employer is oris not fatal to an employment discrimination claim. Plaintiff Humberto Trujillo worked as a manager of an Ashley Furniture HomeStore near Chicago. He was fired and then filed a charge with the Equal Employment Opportunity Commission alleging age discrimination and retaliation. In the charge, he listed the name of the Illinois store where he had worked— Ashley Furniture HomeStore—as well as the address and telephone number of the store. The correct legal name of Trujillo’s employer, however, was Rockledge Furniture LLC, a business that operates several Ashley Furniture HomeStores and that was registered to do business in Illinois under the name “Ashley Furniture HomeStore – Rockledge.” The district court dismissed Trujillo’s claims for failure to exhaust administrative remedies because he did not name his employer sufficiently and because the EEOC never managed to notify the correct employer of Trujillo’s charge.

We reverse based on two premises. First, Trujillo named his employer sufficiently in his original EEOC charge, and when his lawyer later sent his pay stub with Rockledge’s name and address, he removed any doubt about the employer’s identity. Second, the EEOC’s error in processing his charge does not bar Trujillo from suing his employer.

No. 18-3349 reversed and remanded. No. 19-1651 dismissed as moot.

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7^th Circuit Court of Appeals

Case Name: Yaya Toure v. William P. Barr

Case No.: 18-3634

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

Focus: Abuse of Discretion – Immigration

The issue in this petition for judicial review is whether the immigration judge abused her discretion by denying a motion to continue a removal hearing. Petitioner Yaya Toure concedes he is removable. He sought to delay his hearing so that he could belatedly seek lawful permanent residence based on his brief marriage to a United States citizen, a marriage that immigration authorities had investigated and found to have been a sham. Denial of his request for a continuance was not an abuse of discretion, so we deny the petition.

Petition Denied

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7^th Circuit Court of Appeals

Case Name: United States of America v. Gregory M. Terronez

Case No.: 18-3169

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

Focus: Sentencing Guidelines

Gregory Terronez pleaded guilty to unlawful possession of a firearm by a felon. The district court announced a within‐Guidelines sentence of 110 months’ imprisonment. On appeal, Terronez argues the court committed procedural error by not considering his request for a variance from the Guidelines range given that the base offense level overrepresented the seriousness of his offense. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Eric S. Spivey

Case No.: 18-2435

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

Focus: Due Process Violation – Sentencing 

After the district court revoked Eric Spivey’s supervised release, it sentenced him to 24 months in custody. Spivey now argues the district court violated due process because it sentenced him based on a nonexistent condition of supervised release. We disagree and affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Charles D. St. Clair

Case No.: 18-1933

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

Focus: Sentencing – Supervised Release

Defendant-appellant Charles D. St. Clair admitted that he violated several conditions of his supervised release. The district court revoked his release and sentenced him to another term of imprisonment, followed by an additional term of supervised release. St. Clair appeals the conditions for the new term of supervised release. He argues first that the district court failed to justify the twelve discretionary conditions it ordered. He also argues that the court violated his due process rights by imposing a vague condition based on a superseded version of the Sentencing Guidelines.

We affirm. St. Clair waived his right to challenge his supervised release conditions at his revocation hearing when he (1) acknowledged that he received prior notice of the proposed conditions and discussed them with counsel, and then (2) told the judge that he had no objections to or questions about them when asked.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Randy Purifoy

Case No.: 2017AP1360

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

Focus: Court Error – Evidentiary Hearing

Randy Purifoy, pro se, appeals from an order of the circuit court that denied his petition for discharge from commitment under WIS. STAT. ch. 980 (2017-18). Purifoy complains that the circuit court erroneously refused to hold an evidentiary hearing on his pretrial motion, erroneously excluded a treatment progress report as a trial exhibit, and erroneously credited the testimony of one expert over that of two other experts. We reject Purifoy’s challenges and affirm the circuit court’s order.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Hawke M. Strickland

Case No.: 2017AP1498-CR

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

Focus: Ineffective Assistance of Counsel

Hawke M. Strickland appeals a judgment convicting him of first-degree reckless homicide with use of a dangerous weapon. He also appeals an order denying his postconviction motion without a hearing. Strickland argues that: (1) he received ineffective assistance of trial counsel because his lawyer failed to present expert witness testimony regarding the unreliability of eyewitness identification; and (2) Jamal Williams’s testimony should have been excluded from trial because Williams was not sufficiently certain of his identification of Strickland. We resolve these issues against Strickland. Therefore, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Eduardo Gabriel

Case No.: 2018AP234-CR

Officials: Kessler, Brennan and Dugan, JJ.

Focus: Court Error – Motion to Suppress

Eduardo Gabriel appeals from a judgment, entered upon his no-contest plea, convicting him on one count of second-degree sexual assault of a child. Gabriel also appeals from an order denying his postconviction motion. Gabriel contends that the circuit court erroneously denied his motion to suppress his inculpatory statement, which he claims was involuntary. We reject Gabriel’s argument and affirm the circuit court.

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WI Court of Appeals – District III

Case Name: Menard, Inc. v. City of Marinette

Case No.: 2018AP533

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

Focus: Court Error – Abuse of Discretion

This appeal arises from the consolidation of two cases filed by Menard, one in 2016 and one in 2017, challenging the City of Marinette’s (“the City”) 2016 and 2017 real estate tax assessments of Menard’s Marinette, Wisconsin store (“the Property”). Menard contends the circuit court erroneously exercised its discretion by: (1) applying the 2016 case’s scheduling order to both cases after the court granted Menard’s consolidation motion; and (2) denying Menard’s motion to reconsider that decision. Further, Menard contends the court erred by granting the City summary judgment after concluding that an expert report is necessary to rebut the presumption that a city assessor’s property valuation is correct.

We reject Menard’s contentions, with one exception. Specifically, we agree with Menard that the circuit court erroneously exercised its discretion by failing to reconsider its decision to have the 2016 scheduling order govern the 2017 case after it came to light that, prior to consolidation, Menard had missed a critical deadline under the 2016 scheduling order. Accordingly, we affirm in part, reverse in part, and remand with directions in the 2017 case.

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WI Court of Appeals – District I

Case Name: HSBC Bank USA, et al. v. Patricia R. Stewart-Martin

Case No.: 2018AP833

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

Focus: Foreclosure – Prima Facie

Patricia R. Stewart-Martin appeals the judgment in favor of HSBC Bank USA, National Association as Trustee for Structured Asset Securities Corporation, Management Pass-Through Certificate, Series 2004-SCI (HSBC). The trial court granted HSBC’s motion for summary judgment on its foreclosure claims and it converted HSBC’s motion to dismiss Stewart-Martin’s counterclaims to a motion for summary judgment and dismissed her counterclaims.

Stewart-Martin argues that the trial court erred because it concluded that HSBC had established a prima facie case for foreclosure and because, without notice, it converted HSBC’s motion to dismiss her counterclaims to a motion for summary judgment. We conclude that the trial court erred in granting summary judgment on the foreclosure claims because HSBC did not establish a prima facie case that it possesses the note. Therefore, we reverse the trial court’s judgment of foreclosure and dismissal of Stewart-Martin’s counterclaims and remand for further proceedings.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Courtney C. Brown

Case No.: 2017AP774-CR

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

Focus: Unlawful-stop Claim

Courtney C. Brown appeals from a judgment of conviction for one count of possession with intent to deliver cocaine, in violation of WIS. STAT. § 961.41(1m)(cm)1r. (2017-18), as a repeater. Brown’s conviction followed the discovery of cocaine on his person after he was pulled over by a police officer for a noncriminal traffic violation. Brown contends that the circuit court erred in denying his motion to suppress evidence. He argues that the officer lacked reasonable suspicion to continue the detention of Brown during the traffic stop when the officer requested that Brown exit the car and consent to a search of Brown’s person after the officer wrote a warning ticket. Brown contends that the requests unlawfully extended the duration of the traffic stop. We disagree and therefore affirm.

Recommended for Publication

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WI Court of Appeals – District II

Case Name: Town of Delafield v. Central Transport Kriewaldt

Case No.: 2017AP2525

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

Focus: Statutory Interpretation

Town of Delafield appeals from the circuit court’s dismissal of a citation issued to Central Transport Kriewaldt for operating a semi-truck on a Town road in excess of the Town’s posted, seasonal weight restriction. Although the circuit court acknowledged there was no dispute the truck exceeded the weight limit, the court dismissed the citation on the basis that the restriction was preempted by federal law.

The plain language of 49 U.S.C. § 31114(a) clearly demonstrates Congress allowed for state and local laws that may restrict a commercial motor vehicle’s access between the Interstate and a terminal/delivery address, but required that such laws allow “reasonable access.” The record in this case indicates that commercial motor vehicles in excess of six tons have unfettered access to all Town destinations almost the entire year and even during the brief spring-thaw period of restriction still have access, so long as they secure a permit from the Town—which permits appear to be fairly easy to procure and to have never been denied to any carrier—and follow the Town’s preferred route of travel. Furthermore, the inherent requirement that a carrier make itself aware as to whether a government restriction, such as a weight limit, might affect its delivery is not an unreasonable “cost of doing business.” For these reasons, we conclude the Town’s application of WIS. STAT. § 348.17(1) and TOWN OF DELAFIELD, WIS., ORDINANCE § 7.01 through its seasonal weight-restriction and permit process did not deny Central Transport reasonable access between the Interstate and its Town customer and, therefore, did not conflict with § 31114. Accordingly, because Central Transport made no attempt to secure a permit and undisputedly violated the six-ton weight limit, the court erred in dismissing the citation. We reverse and remand.

Recommended for Publication

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WI Court of Appeals – District II

Case Name: Bill Lueders v. Scott Krug

Case No.: 2018AP431

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

Focus: Mandamus Relief – Open Records

Scott Krug appeals from an order granting mandamus relief to Bill Lueders and ordering Krug to produce “electronic copies” of records Lueders sought through an open records request. Krug rests his appeal on his reading of WIS. STAT. § 19.35(1)(b), which he claims requires him to provide Lueders with “nothing more” than “copies of records that [were] ‘substantially as readable’ as the original.” This argument calls upon us to interpret this statutory provision and apply it to the undisputed facts. We affirm.

Recommended for Publication

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Maxx A. Pasko

Case No.: 2018AP757-CR

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

Focus: Sentencing Modification

Pasko appeals from a judgment of conviction and an order denying his postconviction motion. He contends that the circuit court erred in amending a charge against him after the close of evidence at trial. He further contends that the court erred in denying his motion to modify sentence. We disagree and affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Darla A. George

Case No.: 2018AP911-CR; 2018AP912

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

Focus: Sentence Credit

In these consolidated Racine County cases, Darla George appeals from judgments of conviction and from orders denying her WIS. STAT. RULE 809.30 (2017-18) postconviction motion seeking additional sentence credit and sentence modification. The State concedes, and we agree, that George is entitled to additional sentence credit but that she has not demonstrated the presence of a new factor warranting sentence modification. We affirm the judgments as to her convictions, and the orders insofar as they denied her request for sentence modification. We reverse the judgments and orders in regard to the sentence credit awarded and remand for a redetermination of sentence credit.

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WI Court of Appeals – District II

Case Name: Elizabeth J. Ballmann v. RJM Remodeling & Development

Case No.: 2018AP1508

Officials: GUNDRUM, J.

Focus: Court Error – Sufficiency of Evidence

RJM Remodeling & Development appeals from a judgment entered against it and in favor of Elizabeth Ballmann in the amount of $7220.10.  RJM complains that the circuit court allowed Ballmann to present evidence of which it was not made aware prior to the trial, specifically a “new” inspection report and photographs. RJM complains that rather than “stay” this small claims court case, the court chose to give it “only a fifteen minute recess” to review these items. RJM asserts it was “unjust” that the court did not either preclude this evidence or stay the trial “to allow adequate discovery” related to the evidence.

Next, RJM complains that Ballmann did not afford it the opportunity to cure any defects because she would not allow RJM onto her property to do so. RJM admits this matter “was not addressed in the circuit court proceedings.” As an appellate court, however, we do not address matters raised for the first time on appeal, see Brooks v. Hayes, 133 Wis. 2d 228, 241, 395 N.W.2d 167 (1986), so we decline to address this matter. If RJM believed this “right to cure” defense was a valid one for defending against Ballmann’s suit, it was its responsibility to raise and develop the issue before the circuit court. RJM admits it did not do so and cannot now prevail on this issue before us. We are an error-correcting court. State v. Schumacher, 144 Wis. 2d 388, 407, 424 N.W.2d 672 (1988). As noted, it is an appellant’s burden to demonstrate how the circuit court erred. Gaethke, 376 Wis. 2d 448, ¶36. RJM has not met that burden.  Lastly, RJM cites to WIS JI—CIVIL 3700 in asserting the circuit court erred in awarding Ballmann “the full cost of construction of the entire deck” rather than “the lesser of the cost of repair or the diminution of property value.” It also states that “cost to repair was never investigated.”

To begin, RJM fails to identify for us, and we are unable to find, anywhere in the record where it raised the issue of WIS JI—CIVIL 3700 to the circuit court. As indicated, we will not address issues raised for the first time on appeal. See Brooks, 133 Wis. 2d at 241. Furthermore, RJM develops no legal argument in support of this claim of error by the court, and, as stated, we will not address undeveloped arguments See ABKA Ltd. P’ship, 231 Wis. 2d at 349 n.9. We additionally note that following the trial, the court ordered that RJM repay Ballmann the full amount she paid for the construction work done at her house because the problems with the work RJM performed could not be addressed simply with “repairs.” The court noted that Ballmann now had “a defective deck” and that she “can’t in good consc[ience], sell her house without disclosing” that she did not have a permit for the deck and that it was “not done to code.” The court added: “When she sells her house, that’s going to be a minus, not a plus.” Lastly, while RJM complained to the circuit court, and similarly complains on appeal, about the court’s order for full repayment to Ballmann, RJM presented no evidence and made no argument as to what alternative judgment amount would be more appropriate. RJM has failed to satisfy its burden of demonstrating the circuit court erred. See Gaethke, 376 Wis. 2d 448, ¶36.  We affirm.

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WI Court of Appeals – District IV

Case Name: American Family Insurance Company v. Chatavier Bell-Johnson, et al.

Case No.: 2017AP2270

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

Focus: Insurance Claim – Liability

Joseph Grider, Kayden Sympson, Kendra Sympson, and the personal representative of the estate of Cassondra Sympson (collectively, the Sympsons) appeal orders of the circuit court granting summary judgment in favor of American Family Mutual Insurance Company and Empire Fire and Marine Insurance Company. The Sympsons were injured when their vehicle was involved in an accident with a vehicle driven by Johnquayl Bell. Bell’s vehicle had been rented by Nicholas Cade, who had given Bell permission to drive the vehicle. At the time of the accident, Cade was insured under separate liability policies issued by American Family and Empire. The circuit court determined that the American Family and Empire policies did not provide coverage for the Sympsons’ claims. The Sympsons raise various arguments as to why summary judgment is not appropriate. We affirm in part and reverse in part and remand for further proceedings.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Ryan M. Muth

Case No.: 2018AP875-CR

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

Focus: Restitution

Ryan Muth was convicted of a vehicular homicide. He appeals an order awarding restitution to relatives of the crash victim, making two alternative arguments: (1) the circuit court erred by declining to set off, against the amount of restitution, a civil settlement payout that had already been made to the relatives based on the same fatal crash, and (2) the court erred by awarding restitution for lost wages of relatives who are not defined as victims in WIS. STAT. § 973.20(5) (2017-18). We conclude that the sentencing court properly exercised its discretion in determining that Muth did not meet his burden of proving, as a setoff against restitution, any particular portion of the $100,000 paid out to the relatives under the civil settlement agreement. However, we separately conclude that the court improperly awarded restitution for lost wages of sons-in-law of the crash victim. Consequently, we affirm in part, reverse in part, and remand with directions that the circuit court amend the judgment to exclude amounts awarded for lost wages of the sons-in-law.

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WI Court of Appeals – District IV

Case Name: Denice Morgan v. Circuit Court for Dane County, et al.

Case No.: 2018AP2313

Officials: KLOPPENBURG, J.

Focus: Eviction

This appeal raises the question of whether the circuit court properly denied Denice Morgan’s motion to redact her name from the record of this eviction action as reflected on the Wisconsin Circuit Court Access website after the eviction action was dismissed. The circuit court concluded that “no law or legal precedent” gave it the authority to make such a redaction. Morgan argues that because the court found that failing to redact her name from the record of this eviction action as reflected on the court access website threatened Morgan’s ability to obtain safe and secure housing in the future, the court had inherent authority to redact her name. Applying the test set out in controlling case law, I conclude that Morgan has shown that the administration of justice requires redaction of her name from the circuit court record, so that the redaction will be reflected on the court access website. Accordingly, I reverse and remand.

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WI Court of Appeals – District IV

Case Name: Juneau County Department of Human Services v. S.G.M.

Case No.: 2019AP553; 2019AP554; 2019AP555; 2019AP556

Officials: FITZPATRICK, J.

Focus: Termination of Parental Rights

S.G.M. appeals orders of the Juneau County Circuit Court granting partial summary judgment in favor of the Juneau County Department of Human Services (the County) and orders terminating his parental rights to A.M., S.J.M., K.M., and R.M. The circuit court found S.G.M. unfit under WIS. STAT. § 48.415(4) based on the ground of continuing denial of visitation. In support of its motions for partial summary judgment, the County attached as exhibits various orders of the circuit court which revised the “Child in Need of Protection or Services” (CHIPS) dispositional orders in each case and suspended S.G.M.’s visitation. S.G.M. argues that the County failed to comply with the statutory requirements for summary judgment because no affidavit accompanied the revision orders which suspended visitation. Additionally, S.G.M. contends that the County is not entitled to summary judgment because the revision orders suspended visitation pursuant to WIS. STAT. § 48.355(3) and, therefore, do not satisfy the requirements of the pertinent grounds statute. See § 48.415(4)(a). Because I conclude that the County complied with summary judgment procedure and the orders suspending visitation were revision orders under WIS. STAT. § 48.363, I affirm the orders of the circuit court granting partial summary judgment in favor of the County and terminating S.G.M.’s parental rights.

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WI Supreme Court Digests

WI Supreme Court

Case Name: John Teske, et al. v. Wilson Mutual Insurance Company

Case No.: 2019 WI 62

Focus: Claim Preclusion

The petitioner, Wilson Mutual Insurance Company (Wilson), seeks review of an unpublished decision of the court of appeals reversing the circuit court’s order that determined the Teskes’ claims were barred by the doctrine of claim preclusion. Wilson contends that the circuit court correctly dismissed the Teskes’ claims because the claims could have been brought in a prior action between the same parties.

Specifically, Wilson asserts that claim preclusion applies to bar all of the plaintiffs’ claims because all three elements of claim preclusion are established. It contends that the parties to the first and second actions were the same, or were in privity. Wilson argues next that identity of causes of action is present because the claims in this lawsuit and the previous lawsuit arose from the same common nucleus of operative facts. Finally, it advances that there was a final judgment on the merits in the first action.

We conclude that claim preclusion bars the claims brought by Julie, Katherine, and Elle Teske in this second action. Accordingly, we reverse that part of the decision of the court of appeals that allowed their claims to proceed. However, we are evenly divided as to whether claim preclusion bars the claims brought by John Teske. As a result, we affirm.

Affirmed in part, reversed in part.

Concur:

Dissent:

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WI Supreme Court

Case Name: State of Wisconsin v. Peter J. Hanson

Case No.: 2019 WI 63

Focus: 6^th Amendment Violation

Peter Hanson (“Hanson”) seeks review of the court of appeals’ decision affirming the circuit court’s denial of his postconviction motion.

Chad McLean (“McLean”) disappeared on the night of February 22, 1998. His body was found one month later in the Pensaukee River with four gunshot wounds to his head. The case went cold until 2009 when Hanson’s estranged wife Kathy Hanson (“Kathy”) gave a statement to police implicating Hanson in McLean’s murder. In November 2012, a judge in Oconto County held a John Doe proceeding to further investigate McLean’s murder. Hanson testified at that proceeding, made incriminating statements, and was subsequently charged with McLean’s murder. Hanson was convicted and sentenced to life imprisonment without the possibility of parole.

Hanson challenges the admissibility at trial of portions of his testimony from the John Doe proceeding on two grounds. First, Hanson contends that the admission of his John Doe testimony regarding Kathy’s statement to police inculpating him in McLean’s murder violated his Sixth Amendment right to confrontation. Second, Hanson claims his trial counsel was ineffective for failing to object to the admission of his John Doe testimony because, at the time he testified, he was in custody on an unrelated matter and not read all of the Miranda warnings.

We conclude that Hanson’s Sixth Amendment right to confrontation was not violated because his John Doe testimony regarding Kathy’s statement to police was not offered to prove the truth of the matter asserted. We also conclude that Hanson’s ineffective assistance of counsel claim fails because the law was unsettled as to whether Miranda warnings were required at John Doe proceedings. Finally, we determine as a matter of first impression that Miranda warnings are not required at John Doe proceedings.

Affirmed

Concur:

Dissent:

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WI Supreme Court

Case Name: United States of America v. Dennis Franklin, et al.

Case No.: 2019 WI 64

Focus: Statutory Interpretation – Burglary

This case is before the court on a certified question from the United States Court of Appeals for the Seventh Circuit. United States v. Franklin, 895 F.3d 954 (7th Cir. 2018); see Wis. Stat. § 821.01 (2017-18). The question certified for determination is:

Whether the different location subsections of the Wisconsin burglary statute, Wis. Stat. § 943.10(1m)(a) -(f), identify alternative elements of burglary, one of which a jury must unanimously find beyond a reasonable doubt to convict, or whether they identify alternative means of committing burglary, for which a unanimous finding beyond a reasonable doubt is not necessary to convict?

Our answer to this certified question will aid the Seventh Circuit in determining the appropriate sentences for Dennis Franklin and Shane Sahm (together, the defendants), who had their sentences enhanced pursuant to the federal Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1).  The defendants pleaded guilty to violations of 18 U.S.C. § 922(g)(1) for possessing firearms after having been previously convicted of a felony. Based upon their previous Wisconsin burglary convictions, the defendants were classified as armed career criminals and sentenced to a mandatory minimum of 15 years in prison pursuant to the ACCA. The defendants objected to their status as armed career criminals on appeal to the Seventh Circuit, where their cases were consolidated. A three-judge panel of the Seventh Circuit held that the defendants’ prior burglary convictions were predicate violent felonies under the ACCA because each of the locations set forth in Wis. Stat. § 943.10(1m)(a)-(e) identify alternative elements for the crime of burglary making them each distinct crimes. The defendants filed a petition for rehearing en banc. They asserted that because the locational alternatives in § 943.10(1m)(a)-(f) provide alternative means of committing one element of the crime of burglary, the Wisconsin burglary statute is too broad to fall within the definition of burglary as a predicate violent felony under the ACCA. The Seventh Circuit granted the petition for rehearing, vacated its prior opinion, and certified the question of Wisconsin state law to this court.

To answer the certified question, we examine the four factors set forth in Derango: (1) the statutory text; (2) the legislative history and context of the statute; (3) the nature of the conduct; and (4) the appropriateness of multiple punishments. State v. Derango, 2000 WI 89, ¶¶14-15, 236 Wis. 2d 721, 613 N.W.2d 833. We conclude that Wis. Stat. § 943.10(1m)(a)-(f) identifies alternative means of committing one element of the crime of burglary under § 943.10(1m). Accordingly, a unanimous finding of guilt beyond a reasonable doubt as to a locational alternative in subsections (a)-(f) is not necessary to convict.

Certified question answered and cause remanded

Concur:

Dissent:

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WI Supreme Court

Case Name: David W. Paynter, et al. v. ProAssurance Wisconsin Insurance Company, et al.

Case No.: 2019 WI 65

Focus: Malpractice – Statute of Limitations 

This is a review of a published decision of the court of appeals affirming an order of the Circuit Court for Ashland County, Robert E. Eaton, Judge, granting summary judgment in favor of Defendant-Respondent Dr. James A. Hamp. Plaintiffs-Appellants-Petitioners David and Kathryn Paynter live in Bessemer, Michigan, a city located near the Wisconsin-Michigan border. The Paynters sued Dr. Hamp, a medical doctor who practiced in both Wisconsin and Michigan, alleging that he negligently failed to diagnose Mr. Paynter with cancer. The Paynters also allege that Dr. Hamp violated Mr. Paynter’s right to informed consent.Dr. Hamp moved for summary judgment, arguing that the Paynters’ claims are “foreign cause[s] of action” pursuant to Wisconsin’s borrowing statute, Wis. Stat. § 893.07 (2015-16). Wisconsin’s borrowing statute adopts the limitations rule of a foreign jurisdiction and applies it to any “foreign cause of action” as if it were Wisconsin’s own statute, provided that the foreign period of limitation is shorter than Wisconsin’s period of limitation.

Dr. Hamp argues that pursuant to Wisconsin’s borrowing statute, Michigan’s statute of limitations applies to the Paynters’ claims. It is undisputed that if Michigan’s statute of limitations applies, the Paynters’ claims are untimely. The Paynters argue that their claims are not “foreign cause[s] of action” under the borrowing statute. Thus, they argue that Wisconsin’s statute of limitations applies to their claims. It is undisputed that if Wisconsin’s statute of limitations applies, the Paynters’ claims are timely. The circuit court granted Dr. Hamp’s motion for summary judgment. It considered five factors that are traditionally used to resolve choice-of-law questions and concluded that those factors favored applying Michigan’s statute of limitations. The Paynters appealed. The court of appeals, applying a different analysis than the circuit court, affirmed the circuit court’s order granting summary judgment to Dr. Hamp. The court of appeals announced that “in cases involving an injury or injuries that allegedly occurred in multiple states, the plaintiff’s cause of action is not foreign, for purposes of the borrowing statute, when the first instance of injury occurred in Wisconsin.

The court of appeals held that because the Paynters lived in Michigan during the four-year period between Dr. Hamp’s alleged misdiagnosis and Mr. Paynter’s discovery of his injury, the Paynters’ negligence claim was “foreign” for purposes of the borrowing statute. The court of appeals further held that the Paynters’ informed consent claim was “foreign” for purposes of the borrowing statute because Mr. Paynter was located in Michigan at the time his right to informed consent was allegedly violated. Accordingly, the court of appeals applied the Michigan statute of limitations to both claims and affirmed the circuit court order granting summary judgment in favor of Dr. Hamp. The Paynters petitioned this court for review.

On this issue of first impression, we hold that in medical malpractice cases involving a negligent misdiagnosis that results in a latent, though continuous, injury, whether the action is “foreign” for purposes of Wisconsin’s borrowing statute is determined by whether the plaintiff’s first injury occurred outside of Wisconsin. We disagree with the court of appeals’ conclusion that the borrowing statute applies to the Paynters’ negligence claim. On the record before the court, Mr. Paynter’s place of first injury appears to be beyond ascertainment to any reasonable, non-speculative degree. When the plaintiff’s place of first injury is unknowable, as in the instant case, Wisconsin’s borrowing statute does not apply. However, we agree with the court of appeals that the Paynters’ informed consent claim is “foreign” for purposes of Wisconsin’s borrowing statute. Therefore, we apply Michigan’s statute of limitations to the Paynters’ informed consent claim and conclude that the claim is untimely. Dr. Hamp is entitled to summary judgment as to that claim. Accordingly, the court of appeals’ decision is affirmed in part and reversed in part. We remand the cause to the court of appeals in order to address the Paynters’ argument that the circuit court erred by determining that an insurance policy issued to Dr. Hamp by Defendant-Respondent ProAssurance Wisconsin Insurance Company did not provide coverage for the Paynters’ claims.

Affirmed in part. Reversed and remanded in part.

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

Dissent:

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Supreme Court Digests

United States Supreme Court

Case Name: Jason J. Mont v. United States

Case No.: 17-8995

Focus: Sentencing – Supervised Release

This case requires the Court to decide whether a convicted criminal’s period of supervised release is tolled—in effect, paused—during his pretrial detention for a new criminal offense. Specifically, the question is whether that pretrial detention qualifies as “imprisonment in connection with a conviction for a Federal, State, or local crime.” 18 U. S. C. §3624(e). Given the text and statutory context of §3624(e), we conclude that if the court’s later imposed sentence credits the period of pretrial detention as time served for the new offense, then the pretrial detention also tolls the supervised-release period.

Affirmed

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

Concurring:

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United States Supreme Court

Case Name: Fort Bend County, Texas v. Lois M. Davis

Case No.: 18-525

Focus: Title VII Violation – Jurisdiction

Title VII of the Civil Rights Act of 1964 proscribes discrimination in employment on the basis of race, color, religion, sex, or national origin. 78 Stat. 255, 42 U. S. C. §2000e–2(a)(1). The Act also prohibits retaliation against persons who assert rights under the statute. §2000e–3(a). As a precondition to the commencement of a Title VII action in court, a complainant must first file a charge with the Equal Employment Opportunity Commission (EEOC or Commission). §2000e–5(e)(1), (f )(1). The question this case presents: Is Title VII’s charge-filing precondition to suit a “jurisdictional” requirement that can be raised at any stage of a proceeding; or is it a procedural prescription mandatory if timely raised, but subject to forfeiture if tardily asserted? We hold that Title VII’s charge-filing instruction is not jurisdictional, a term generally reserved to describe the classes of cases a court may entertain (subject-matter jurisdiction) or the persons over whom a court may exercise adjudicatory authority (personal jurisdiction). Kontrick v. Ryan, 540 U. S. 443, 455 (2004). Prerequisites to suit like Title VII’s charge-filing instruction are not of that character; they are properly ranked among the array of claim-processing rules that must be timely raised to come into play.

Affirmed

Dissenting:

Concurring:

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United States Supreme Court

Case Name: Bradley Weston Taggart v. Shelley A. Lorenzen, et al.

Case No.: 18-489

Focus: Bankruptcy – Civil Contempt – Discharge Order

At the conclusion of a bankruptcy proceeding, a bankruptcy court typically enters an order releasing the debtor from liability for most prebankruptcy debts. This order, known as a discharge order, bars creditors from attempting to collect any debt covered by the order. See 11 U. S. C. §524(a)(2). The question presented here concerns the criteria for determining when a court may hold a creditor in civil contempt for attempting to collect a debt that a discharge order has immunized from collection.

The Bankruptcy Court, in holding the creditors here in civil contempt, applied a standard that it described as akin to “strict liability” based on the standard’s expansive scope. In re Taggart, 522 B. R. 627, 632 (Bkrtcy. Ct. Ore. 2014). It held that civil contempt sanctions are permissible, irrespective of the creditor’s beliefs, so long as the creditor was “‘aware of the discharge’” order and “‘intended the actions which violate[d]’” it. Ibid. (quoting In re Hardy, 97 F. 3d 1384, 1390 (CA11 1996)). The Court of Appeals for the Ninth Circuit, however, disagreed with that standard. Applying a subjective standard instead, it concluded that a court cannot hold a creditor in civil contempt if the creditor has a “good faith belief ” that the discharge order “does not apply to the creditor’s claim.” In re Taggart, 888 F. 3d 438, 444 (2018). That is so, the Court of Appeals held, “even if the creditor’s belief is unreasonable.” Ibid.

We conclude that neither a standard akin to strict liability nor a purely subjective standard is appropriate. Rather, in our view, a court may hold a creditor in civil contempt for violating a discharge order if there is no fair ground of doubt as to whether the order barred the creditor’s conduct. In other words, civil contempt may be appropriate if there is no objectively reasonable basis for concluding that the creditor’s conduct might be lawful.

Vacated and remanded

Dissenting:

Concurring:

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United States Supreme Court

Case Name: Alex M. Azar, II v. Allina Health Services, et al.  

Case No.: 17-1484

Focus: Medicare – Notice And Comment Obligations

One way or another, Medicare touches the lives of nearly all Americans. Recognizing this reality, Congress has told the government that, when it wishes to establish or change a “substantive legal standard” affecting Medicare benefits, it must first afford the public notice and a chance to comment. 42 U. S. C. §1395hh(a)(2). In 2014, the government revealed a new policy on its website that dramatically—and retroactively—reduced payments to hospitals serving low-income patients. Because affected members of the public received no advance warning and no chance to comment first, and because the government has not identified a lawful excuse for neglecting its statutory notice-and-comment obligations, we agree with the court of appeals that the new policy cannot stand.

Affirmed

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

Concurring:

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