Weekly Case Digests – July 8, 2019 – July 12, 2019

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Slobodanka Nestorovic v. Metropolitan Water Reclamation District of Greater Chicago

Case No.: 18-2562

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

Focus: Jurisdiction

This case turns on the requirement in 28 U.S.C. § 2107(c) that a litigant show excusable neglect or good cause to file an appeal after the deadline for doing so has passed. The district court dismissed Slobodanka Nestorovic’s discrimination claims against her employer and the deadline to appeal expired without Nestorovic appealing. Nestorovic then moved for an extension of time to file a notice of appeal, and the district court granted her motion without making any finding as to whether Nestorovic had made the required showing that excusable neglect or good cause justified missing the original deadline. Because this showing is required by an act of Congress—§ 2107(c), in particular—the necessity for Nestorovic to have shown excusable neglect or good cause serves as a prerequisite to our having appellate jurisdiction. As the record below contained no evidence of excusable neglect or good cause for Nestorovic’s tardiness, we dismiss Nestorovic’s appeal for lack of jurisdiction.

Dismissed

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7^th Circuit Court of Appeals

Case Name: Uncommon, LLC, v. Spigen, Inc.,

Case No.: 18-1917

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

Focus: Trademark Infringement – Expert Testimony

The word “capsule” can describe many things—a pharmaceutical pill, a space pod, or a short synopsis, for example. What about a cellphone case?

The U.S. Patent and Trademark Office has given conflicting answers. It has, on a few occasions, found that “capsule” was “merely descriptive” of cellphone cases, a finding that precludes the mark from registration on the Principal Register. Yet the Office has also found otherwise and allowed one manufacturer—Uncommon, LLC—to register “capsule.”

Rival case manufacturers still use the term, though. Uncommon sued one of those manufacturers, Spigen, Inc., for trademark infringement and unfair competition. In discovery, Spigen produced a survey to prove that consumers did not associate “capsule” with Uncommon’s cases, and it disclosed the person who conducted the survey as a “non-testifying expert.” That was a problem: without foundational expert testimony to explain the survey’s methodology, it was inadmissible. But when the litigation reached summary judgment, the district court excused Spigen’s error. It then granted Spigen summary judgment on the merits.

We affirm. Spigen’s disclosure was inaccurate, but calling it harmless, as the district court did, was reasonable. With the survey, there was no genuine issue of material fact as to the mark’s invalid registration. Nor was there an issue of fact regarding the unlikelihood of consumer confusion. Summary judgment was therefore appropriate.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Bodum USA, Incorporated v. A Top New Casting Incorporated

Case No.: 18-3020

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

Focus: Exclusion of Evidence

Bodum USA, Inc. (“Bodum”) produces and sells what design magazines and art museums have recognized as an iconically designed houseware product—the Chambord French press coffeemaker. Bodum sued A Top New Casting, Inc. (“A Top”) for selling a French press that Bodum claimed infringes on its unregistered trade dress in the Chambord. After a five‐day trial, a jury returned a verdict in favor of Bodum, finding that A Top had willfully in‐ fringed on Bodum’s trade dress in the Chambord and awarding Bodum $2 million in damages. The district court denied A Top’s post‐trial motion for judgment as a matter of law, in which A Top argued that Bodum failed to prove the Chambord design was nonfunctional. A Top also moved for a new trial because the court excluded evidence of various utility patents covering French press coffeemakers; the district court denied this motion as well. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. David Tjader

Case No.: 18-2447

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

Focus: Sentencing – Supervised Release

In this appeal, David Tjader challenges several conditions of his supervised release on grounds he did not raise in the district court. Because he waived these challenges, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Leonte Williams v. Vipin Shah, et al.

Case No.: 18-2439

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

Focus: 8^th Amendment Violation

Leonte Williams, an inmate in the custody of the Illinois Department of Corrections, sued a number of prison officials under 42 U.S.C. § 1983, alleging that they violated his Eighth Amendment rights by providing inadequate nutrition through a “brunch” program that served only two meals a day. The district court granted summary judgment in favor of the defendants. Because the record establishes without dispute that the brunch program was adequate as designed and also because Williams lacks evidence that any of the defendants knew that he was allegedly not receiving adequate nutrition, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Mark Richardson v. Chicago Transit Authority

Case No.: 17-3508; 18-2199

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

Focus: ADA Violation

Mark Richardson, a former Chicago Transit Authority (“CTA”) bus operator, alleged CTA took adverse action against him because of his extreme obesity in violation of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12101–12213, as amended by the ADA Amendments Act of 2008 (“ADAAA”), Pub. L. No. 110-325, 122 Stat. 3553. The district court disagreed. It held extreme obesity only qualifies as a disability under the ADA if it is caused by an underlying physiological disorder or condition, and granted CTA’s motion for summary judgment because Richardson offered no such evidence. Richardson appeals this holding, as well as the district court’s decision to tax costs against him. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Shirley Lacko v. United of Omaha Life Insurance Company

Case No.: 18-2155

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

Focus: Insurance Claim – Disability Benefits

Shirley Lacko filed suit against United of Omaha Life Insurance Company (“United”), challenging United’s denial of her claims for short‐term and long‐ term disability insurance. Those claims were brought pursuant to group insurance policies issued by United to her employer, BKD, Inc., an accounting firm. Specifically, BKD provided two group insurance policies, Group Short Term Disability Insurance Policy No. GUC‐ABF3 (the “STD” plan) and the Group Long Term Disability Insurance Policy No. GLTD‐ ABF3 (the “LTD” plan). Both policies were issued by United, who also served as the claims review fiduciary for claims to STD and LTD benefits.

Lacko based her claims for STD and LTD benefits on the adverse combination of a number of impairments, including but not limited to gastroparesis, diabetes, rheumatoid arthritis, congestive heart failure, breathing difficulties, anxiety, musculoskeletal impairments, and cognitive difficulties related in part to the medication needed to manage the other conditions. The district court opinion details the extensive medical evidence presented to United in support of Lacko’s disability benefits claims. It includes reports from numerous physicians, as well as objective evidence such as MRI, X‐ray, and lab reports. An exhaustive recitation of that evidence, however, is unnecessary to resolve the issues presented in this case. Therefore, we will set forth the evidence only to the extent that it is necessary to decide the issues in this appeal and defer to the district court the more extensive recitation.

Although United initially approved her claims for STD benefits on three occasions for the time period spanning October 12, 2015 through November 22, 2015, it denied STD benefits on June 16, 2016 for the period beyond November 22, 2015, concluding the records failed to demonstrate a change in Lacko’s medical condition at the time she stopped working or subsequently. United also denied her claim for LTD benefits. Lacko then filed this action in the district court under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq., challenging the denial of LTD benefits, and the denial of STD benefits from the period of November 22, 2015 until December 27, 2015 (at which time LTD benefits would apply). The district court granted summary judgment in favor of United, and Lacko now appeals that decision to this court.

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: Jennifer Miller, et al. v. Southwest Airlines Co., et al.

Case No.: 18-3476; 19-1785

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

Focus: Due Process Violation – Collective Bargaining Agreements

We have consolidated two appeals that pose a common question: whether persons who contend that air carriers have violated state law by using biometric identification in the workplace must present these contentions to an adjustment board under the Railway Labor Act (RLA), 45 U.S.C. §§ 151–88, which applies to air carriers as well as railroads. 45 U.S.C. §181. The answer is yes if the contentions amount to a “minor dispute”—that is, a dispute about the interpretation or application of a collective bargaining agreement. 45 U.S.C. §§ 151a, 184; Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 252–53 (1994). Plaintiffs insist that a judge should resolve their contentions, while defendants contend that resolution belongs to an adjustment board.

The claims in each suit arise under the Biometric Information Privacy Act (BIPA), 740 ILCS 14/5 to 14/25, which Illinois adopted in 2008. This law applies to all biometric identifiers, which the statute defines to include fingerprints. 740 ILCS 14/10. Before obtaining any fingerprint, a “private entity” must inform the subject or “the subject’s legally authorized representative” in writing about several things, such as the purpose of collecting the data and how long they will be kept, and obtain the consent of the subject or authorized representative. 740 ILCS 14/15(b). The private entity also must establish and make available to the public a protocol for retaining and handling biometric data, which must be destroyed “when the initial purpose for collecting or obtaining such identifiers or information has been satisfied or within 3 years of the individual’s last interaction with the private entity, whichever occurs first.” 740 ILCS 14/15(a). Sales of biometric information are forbidden, 740 ILCS 14/15(c), and transfers are limited, 740 ILCS 14/15(d). Private entities must protect biometric information from disclosure. 740 ILCS 14/15(e).

Both Southwest Airlines and United Airlines maintain timekeeping systems that require workers to clock in and out with their fingerprints. Plaintiffs contend that the air carriers implemented these systems without their consent, failed to publish protocols, and use third-party vendors to implement the systems, which plaintiffs call a forbidden disclosure. Southwest and United contend that the plaintiffs’ unions have consented—either expressly or through the collective bargaining agreements’ management-rights clauses— and that any required notice has been provided to the unions. The air carriers insist that, to the extent these matters are disputed, an adjustment board rather than a judge must resolve the difference—and that if state law gives workers rights beyond those provided by federal law and collective bargaining agreements, it is preempted by the Railway Labor Act.

We begin with the suit against Southwest, for in that suit the plaintiffs are content to litigate in federal court. We postpone the question whether the suit against United was properly removed.

Given our conclusion that the federal-question jurisdiction supports removal, we need not remand for the district court to explore the question whether, on the date the case was removed, one class member was a citizen of Wisconsin or Indiana, or conceivably some third state other than Illinois or Delaware—say, a citizen of California temporarily detailed to work at O’Hare.

In Miller v. Southwest Airlines, No. 18-3476, the judgment of the district court is affirmed. In Johnson v. United Airlines, No. 19-1785, the judgment is vacated, and the case is remanded with instructions to refer the parties’ dispute to an adjustment board.

Affirmed for 18-3476. Vacated and remanded for 19-1785

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7^th Circuit Court of Appeals

Case Name: James A. Mollet v. City of Greenfield

Case No.: 18-3685

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

Focus: Title VII Violation – Retaliation Claim

In this case we must decide whether James Mollet’s complaint about a racially charged incident was the but-for cause of his constructive discharge. We answer in the negative and affirm the decision of the district court.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Shaka Freeman v. Metropolitan Water Reclamation District of Greater Chicago

Case No.: 18-3737

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

Focus: Title VII Violation – Discrimination

Shaka Freeman, an African-American man who suffers from alcoholism, sued the Water Reclamation District of Greater Chicago, his former employer, for firing him because of his race and disability. The district court dismissed his complaint for failure to state a claim. See FED. R. CIV. P. 12(b)(6). We conclude, however, that Freeman has pleaded enough to state his discrimination claims, and so we vacate the judgment and remand for further proceedings with respect to those issues. We affirm with respect to Freeman’s contention that the District fired him pursuant to a policy that is unlawful under Monell v. Department of Social Services., 436 U.S. 658, 694–95 (1978).

Vacated and remanded in part. Affirmed in part.

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7^th Circuit Court of Appeals

Case Name: Harold Wade, et al. v. Kreisler Law, P.C.

Case No.: 18-2564

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

Focus: Bankruptcy – Automatic Stay Violation

Debtors Harold and Lorraine Wade moved for sanctions against Kreisler Law, P.C., alleging that the law firm violated the automatic stay arising from their bankruptcy petition by filing a lien against Lorraine’s home. The couple had voluntarily dismissed a prior bankruptcy petition just a few months earlier, so the bankruptcy judge denied their motion based on 11 U.S.C. § 362(c)(3), which lifts the automatic stay after 30 days in the case of a successive petition. But the bankruptcy courts are divided over the proper interpretation of § 362(c)(3), so the judge certified her order for direct appeal to this court under 28 U.S.C. § 158(d)(2)(A). A timely notice of appeal followed.

But the Wades never filed a petition for permission to appeal as required by Rule 8006(g) of the Federal Rules of Bankruptcy Procedure. Kreisler moved to dismiss the appeal based on this omission. We provisionally accepted the appeal and directed the parties to address the effect of the procedural violation in their merits briefs.

We now dismiss the appeal. Rule 8006(g) is a mandatory claim-processing rule, and if properly invoked, it must be enforced. See Hamer v. Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 17 (2017). Because Kreisler properly objected, the appeal must be dismissed.

Dismissed

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: Bradley Moore v. Zurich American Insurance Company, et al.

Case No.: 2017AP781

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

Focus: Duty to Defend

Konecranes, Inc., Brian Angelroth, and Michael Carroll (collectively, “Konecranes”) appeal from judgments of the circuit court, entered on orders following a jury’s verdict, against Konecranes in favor of plaintiff Bradley Moore and third-party defendant Badger Alloys, Inc. Konecranes contends the circuit court erred when it partially denied Konecranes’ motion for summary judgment, which had asserted, among other things, that Badger had breached its contractual duties to defend and indemnify Konecranes. The circuit court had concluded that any duty was contingent upon the allocation of liability, and that there was “a genuine factual dispute as to whether Konecranes’ liability in any way arises out of the acts or omissions of Badger Alloys[.]” We conclude that there was no duty to defend under the contract in question and that the circuit court properly determined that the duty to indemnify was contingent. The circuit court therefore properly denied the motion for summary judgment in part, so we affirm the judgments.

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WI Court of Appeals – District I

Case Name: James E. Kopp v. Sandra J. Kopp

Case No.: 2017AP1592

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

Focus: Abuse of Discretion – Maintenance

Sandra J. Kopp appeals the circuit court’s order denying her motion to modify maintenance. She argues: (1) the circuit court misused its discretion when it ruled that there was not a substantial change in circumstances warranting maintenance modification; (2) the circuit court misused its discretion by not considering the fairness objective of maintenance; and (3) the circuit court inappropriately established a blanket rule that a substantial change in circumstances cannot be based on cessation of child support. We affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Nathan Edward Birkholz

Case No.: 2018AP261-CR; 2018AP262-CR

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

Focus: Ineffective Assistance of Counsel

Nathan Birkholz appeals judgments imposing sentences after the revocation of his probation. Birkholz also appeals that part of an order denying his motion for postconviction relief. Birkholz argues he is entitled to resentencing because he was denied the effective assistance of counsel at the sentencing hearing following his probation revocation. We reject Birkholz’s arguments and affirm the judgments and order.

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WI Court of Appeals – District III

Case Name: James P. Moran v. Wisconsin Department of Justice

Case No.: 2018AP563

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

Focus: Full Faith and Credit Violation

James Moran appeals an order affirming a decision of the Wisconsin Department of Justice (DOJ) denying Moran’s application to purchase a handgun in Wisconsin. Moran was convicted of a felony in Virginia and, upon the completion of his sentence, he petitioned to have his right to possess a firearm restored in that state. The Virginia courts granted Moran’s petition, and Moran eventually moved to Wisconsin, where he attempted to purchase a firearm. The purchase was blocked by the DOJ based upon its conclusion that, as a felon who had not received a pardon for his crime, Moran was not permitted to possess a firearm in this state.

Moran raises numerous arguments challenging the DOJ’s determination. He contends the DOJ improperly interpreted WIS. STAT. § 941.29(5) (2017-18), which identifies two circumstances under which a felon can lawfully possess a firearm in this state. We agree with the DOJ that, under the plain language of subsec. (5), a felon must either have received a pardon with respect to his or her crime, see subsec. (5)(a), or have obtained relief from his or her disabilities under an identified federal statute, see subsec. (5)(b). Moran has satisfied neither of these conditions. We reject Moran’s assertions that § 941.29(5) has been preempted by federal legislation, and that the restoration of his right to possess a firearm in Virginia is the equivalent of a pardon for purposes of Wisconsin law.

We also reject various constitutional arguments Moran advances. Contrary to Moran’s assertions, the interpretation of WIS. STAT. § 941.29(5) adopted by the DOJ does not violate the Full Faith and Credit Clause of the United States Constitution. That clause does not require the State of Wisconsin to defer to Virginia law with respect to the circumstances under which a felon residing in this state may possess firearms within this state’s borders. Furthermore, we conclude that the DOJ’s determination with respect to Moran’s ability to possess a firearm in Wisconsin does not deprive Moran of his right to bear arms under either the federal constitution or state constitution. Because the DOJ properly denied Moran’s application to purchase a firearm, we affirm the circuit court’s order upholding that determination.

Recommended for Publication

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Jeffrey Lopez

Case No.: 2018AP1110-CR

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

Focus: Sentence Modification

Jeffery Lopez appeals his judgment of conviction entered on his guilty plea to felony intimidation of a victim; a charge of physical abuse of a child was dismissed but considered at sentencing. Lopez also appeals an order denying his postconviction motion without a hearing.

In his postconviction motion, Lopez asserted that he was entitled to sentence modification based on a new factor: a doctor’s report regarding the examination of the child allegedly abused, which was not available at the time of sentencing. In its decision denying his motion, the trial court stated that it was aware of the doctor’s opinions at the time of sentencing—a summary of the doctor’s conclusions was included in the complaint—and therefore it was not a new factor. However, the full report from the doctor, which includes some findings that Lopez believes are material to his claim, was first submitted to the court with Lopez’s postconviction motion; thus, the court did not have that full report at the time of sentencing. Therefore, Lopez argues that the court’s determination that there was no new factor was erroneous as a matter of law.

Additionally, Lopez argues that his trial counsel was ineffective at sentencing by failing to present mitigating factors and exculpatory evidence regarding the dismissed child abuse charge. Lopez further asserts that the trial court never reviewed exhibits relating to these claims prior to issuing its decision denying his postconviction motion. He contends that those exhibits were likely not received by the court until after the filing date of its decision, and that it was an erroneous exercise of its discretion to deny his motion without reviewing those exhibits.

We conclude that Lopez has not established that the doctor’s report constitutes a new factor entitling him to sentence modification, nor has he proven that his trial counsel was ineffective. Furthermore, Lopez has not demonstrated that the trial court was obligated to review all of his exhibits prior to issuing its denial of his postconviction motion. Therefore, we affirm.
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WI Court of Appeals – District I

Case Name: Carol Couturier v. Pension Board Employees’ Retirement System of Milwaukee County

Case No.: 2018AP1351

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

Focus: Pension – Statute of Limitations

Carol Couturier appeals the trial court’s order affirming the decision of the Pension Board of the Employees’ Retirement System of Milwaukee County (Board) that upheld the recovery of seven months of pension overpayments made to Couturier by the Employees’ Retirement System of Milwaukee County (ERS). Couturier received the ERS pension payments as the sole beneficiary of her sister and ERS member, Gloria Schwensow.

Couturier argues that the Board erred in holding that there is no statute of limitations that applies to the ERS’s collection of the overpayments. We disagree, and for the reasons stated below affirm the trial court’s order.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Dakon M. Martin

Case No.: 2017AP391-CR

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

Focus: Ineffective Assistance of Counsel

Dakon M. Martin appeals pro se from a judgment convicting him of possessing narcotics (methadone) with intent to deliver on his no contest plea and from a postconviction order denying his motion to withdraw his plea due to ineffective assistance of trial counsel. Martin argues that the circuit court erroneously denied him appointed postconviction and appellate counsel after the court allowed his first appointed counsel to withdraw. He also argues that his trial counsel was ineffective for failing to investigate an entrapment defense or seek dismissal because the State failed to preserve in evidence or produce in discovery allegedly exculpatory evidence (his cell phone). The record does not bear out any of Martin’s claims. We affirm.

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WI Court of Appeals – District II

Case Name: Sharlene Bertram v. Estate of Dolores A. Kritlow, et al.

Case No.: 2018AP157

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

Focus: Breach of Fiduciary Duty

Sharlene Bertram appeals a judgment entered in favor of the Estate of Dolores E. Kreitlow, premised on its claims of undue influence and breach of fiduciary duty against Bertram for her conduct while acting as Kreitlow’s power of attorney for finances and property. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. John S. Finley

Case No.: 2018AP258-CR

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

Focus: Due Process Violation

John Finley appeals from a judgment of conviction for repeated sexual assault of the same child—his nine-year-old niece—as well as from the denial of his postconviction motion. He insists he is entitled to a new trial because the circuit court erred in denying his motion to suppress a taped, incriminating statement he made to the police. He claims the statement was involuntary, specifically asserting he was coerced into making it, in violation of his state and federal due process rights. We conclude that Finley’s statement was voluntary, and thus the court did not err. We affirm.

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WI Court of Appeals – District II

Case Name: Stop the Ongoing Mine Permit, et al. v. Town of Ashford Board of Appeals, et al.

Case No.: 2018AP1843

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

Focus: Sufficiency of Evidence

Stop the Ongoing Mine Permit (STOMP) appeals from an order of the circuit court affirming, on certiorari review, the Town of Ashford Board of Appeals’ (BOA) decision to grant Batzler Trucking, Inc. a conditional use permit to operate an agricultural sand mine in the Town of Ashford. STOMP argues that the BOA’s decision was not supported by substantial evidence. Like the circuit court, we reject STOMP’s arguments and conclude the BOA did not exceed its jurisdiction, proceeded on a correct theory of law, did not act arbitrarily, and its decision was supported by substantial evidence. Accordingly, we affirm.

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WI Court of Appeals – District IV

Case Name: U.S. Bank, National Association, et al. v. James R. Emery, Jr., et al.

Case No.: 2018AP697

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

Focus: Foreclosure

Emery appeals a judgment of foreclosure entered following a court trial. Emery argues that the circuit court erred when it found that the endorsement on the note was valid, that the court erred in admitting certain testimony regarding ownership of the note, and that the court erred by not allowing Emery to call the attorney representing U.S. Bank as a witness at trial. We reject all three arguments and affirm.

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WI Court of Appeals – District IV

Case Name: G.W. Buckeridge, et al. v. University of WI Hospital, et al. 

Case No.: 2018AP791; 2019AP250

Officials: Blanchard, Kloppenburg, and Fitzpatrick, JJ.

Focus: Invasion of Privacy

G.W. Buckeridge and eighteen other named patients (collectively, “the Buckeridges”) of the University of Wisconsin Hospital and Clinics Authority UW Health (UW Health) appeal an order and a judgment that dismissed the Buckeridges’ claims against UW Health and Kila Lucey. The Buckeridges contend that UW Health violated the confidentiality statute, WIS. STAT. § 146.82, when it failed to prevent Lucey from accessing their patient medical records without authorization or consent. They argue that § 146.82 imposes liability on a health care provider for an employee’s unauthorized access to patient health care records, regardless of whether there is subsequent disclosure. We conclude that our decision in Wall v. Pahl, 2016 WI App 71, ¶12, 371 Wis. 2d 716, 886 N.W.2d 373, compels a result contrary to the Buckeridges’ position. The Buckeridges also contend that Lucey and UW Health are liable for invasion of privacy under WIS. STAT. § 995.50(2)(a) for Lucey’s accessing their patient health care records without authorization or consent. They assert that health care records are private “places” under § 995.50(2)(a). On this issue, we conclude that our decision in Hillman v. Columbia County, 164 Wis. 2d 376, 474 N.W.2d 913 (Ct. App. 1991), compels a result contrary to the Buckeridges’ position. We affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. James M. Kruger

Case No.: 2018AP1194-CR

Officials: Blanchard, Kloppenburg and Fitzpatrick, JJ.

Focus: Court Error – Exclusion of Evidence

James Kruger was convicted in the Dane County Circuit Court of first-degree recklessly endangering safety with the use of a dangerous weapon and felony bail jumping. Prior to trial, based on the doctrine of issue preclusion, the circuit court barred Kruger from presenting evidence to support Kruger’s plea of not guilty by reason of mental disease or defect (NGI). The circuit court confirmed that ruling in denying Kruger’s post-conviction motion. Kruger argues that the circuit court erred in denying him the opportunity to present evidence to support his NGI plea and in denying him relief pursuant to his post-conviction motion. In this court, the State does not dispute that the circuit court erred. Rather, the State argues that the circuit court’s error was harmless and, as a result, we should reject Kruger’s appeal. We conclude that the circuit court’s error was not harmless, reverse the judgment and order of the circuit court, and remand for further proceedings consistent with this opinion.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Kristen Donnelle Switzky, et al.

Case No.: 2018AP1248-CR; 2018AP1249-CR

Officials: Blanchard, Kloppenburg and Fitzpatrick, JJ.

Focus: Search Warrant – Probable Cause

In these consolidated appeals, the State appeals orders of the circuit court suppressing evidence obtained during a search, authorized by a search warrant, of the residence of Kristen Switzky and Eric Switzky. The State contends that the search warrant was supported by probable cause. For the reasons set forth below, we agree with the State. We therefore reverse the suppression orders and remand for further proceedings.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Waukesha County v. S.L.L.

Case No.: 2019 WI 66

Focus: Jurisdiction

Ms. L. challenges an order extending her commitment to the care and custody of Waukesha County pursuant to Chapter 51 of our Wisconsin statutes. She raises three issues for our review. First, she says the circuit court lacked jurisdiction over her when it entered an order extending her commitment. Second, she says the circuit court had no statutory authority to enter a default judgment against her for failing to appear at a scheduled hearing. And third, she asserts there was insufficient evidence of record to support the circuit court’s order extending her commitment. All three issues are moot, but we choose to address the first two. We affirm the court of appeals.

Affirmed

Concur:

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

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WI Supreme Court

Case Name: State of Wisconsin v. Raytrell K. Fitzgerald, et al.

Case No.: 2019 WI 69

Focus: Prisoner – Involuntary Medication

These consolidated cases concern the standard under which a circuit court may order involuntary medication to restore a defendant’s competency to proceed in a criminal case and the timing of the automatic stay of such orders established in State v. Scott, 2018 WI 74, 382 Wis. 2d 476, 914 N.W.2d 141. The circuit court ordered Raytrell K. Fitzgerald to be involuntarily medicated pursuant to Wis. Stat. § 971.14 (2017-18) to restore his competency to stand trial on a felony possession-of-a-firearm charge. After the circuit court entered its order, this court released the Scott decision, subjecting involuntary medication orders to an automatic stay pending appeal. Following a hearing on the impact of the Scott decision, the circuit court stayed its involuntary medication order but announced its plan to lift the stay in response to the State’s motion. As the case proceeded through the appellate courts, the circuit court never lifted the stay. Fitzgerald petitioned the court of appeals for a supervisory writ, arguing that the automatic stay begins upon entry of the involuntary medication order rather than upon filing a notice of appeal as the court of appeals ultimately held. Because the court is equally divided on the writ matter, we affirm the court of appeals decision denying Fitzgerald’s petition for a supervisory writ.

We do, however, address Fitzgerald’s challenge to the constitutionality of Wis. Stat. § 971.14 based on its incompatibility with Sell v. United States, 539 U.S. 166 (2003). In Sell, the United States Supreme Court held that in limited circumstances the government may involuntarily medicate a defendant to restore his competency to proceed to trial, and it outlined four factors that must be met before a circuit court may enter an order for involuntary medication. We hold that the standard for ordering involuntary medication set forth in § 971.14(3)(dm) and (4)(b) is unconstitutional to the extent it requires circuit courts to order involuntary medication based on the standard set forth in paragraph (3)(dm), which does not comport with Sell. We conclude circuit courts may order involuntary medication to restore trial competency under § 971.14 only when the order complies with the Sell standard. We vacate the circuit court’s order for involuntary medication in this case because it is constitutionally insufficient.

Affirmed

Concur: ROGGENSACK, C.J. concurs, joined by ZIEGLER, J. (opinion filed).

Dissent:

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Supreme Court Digests

United States Supreme Court

Case Name: Parker Drilling Management Services, LTD., v. Brian Newton

Case No.: 18-389

Focus: Statutory Interpretation

The Outer Continental Shelf Lands Act (OCSLA), 67 Stat. 462, 43 U. S. C. §1331 et seq., extends federal law to the subsoil and seabed of the Outer Continental Shelf and all attachments thereon (OCS). Under the OCSLA, all law on the OCS is federal law, administered by federal officials. The OCSLA denies States any interest in or jurisdiction over the OCS, and it deems the adjacent State’s laws to be federal law “[t]o the extent that they are applicable and not inconsistent with” other federal law. §1333(a)(2)(A). The question before us is how to determine which state laws meet this requirement and therefore should be adopted as federal law. Applying familiar tools of statutory interpretation, we hold that where federal law addresses the relevant issue, state law is not adopted as surrogate federal law on the OCS.

Vacated and remanded

Dissenting:

Concurring:

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United States Supreme Court

Case Name: Return Mail, Inc. v. United States Postal Service, et al.

Case No.: 17-1594

Focus: Statutory Interpretation

In the Leahy-Smith America Invents Act of 2011, 35 U. S. C. §100 et seq., Congress created the Patent Trial and Appeal Board and established three new types of administrative proceedings before the Board that allow a “person” other than the patent owner to challenge the validity of a patent post-issuance. The question presented in this case is whether a federal agency is a “person” able to seek such review under the statute. We conclude that it is not.

Reversed and remanded

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

Concurring:

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United States Supreme Court

Case Name: Jamar Alonzo Quarles v. United States

Case No.: 17-778

Focus: Statutory Interpretation

Section 924(e) of Title 18, also known as the Armed Career Criminal Act, mandates a minimum 15-year prison sentence for a felon who unlawfully possesses a firearm and has three prior convictions for a “serious drug offense” or “violent felony.” Section 924(e) defines “violent felony” to include “burglary.” Under this Court’s 1990 decision in Taylor v. United States, 495 U. S. 575, the generic statutory term “burglary” means “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Id., at 599 (emphasis added).

The exceedingly narrow question in this case concerns remaining-in burglary. The question is whether remaining-in burglary (i) occurs only if a person has the intent to commit a crime at the exact moment when he or she first unlawfully remains in a building or structure, or (ii) more broadly, occurs when a person forms the intent to commit a crime at any time while unlawfully remaining in a building or structure. For purposes of §924(e), we conclude that remaining-in burglary occurs when the defendant forms the intent to commit a crime at any time while unlawfully remaining in a building or structure. We affirm the judgment of the U. S. Court of Appeals for the Sixth Circuit.

Affirmed

Dissenting:

Concurring: THOMAS, J., filed a concurring opinion.

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