Weekly Case Digests – July 15, 2019 – July 19, 2019

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Gheorgui Martov v. United States of America

Case No.: 18-3424

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

Focus: Asset Forfeiture

The government arrested Gheorgui Martov for wire fraud and seized several items of his personal property including a watch, $4,035 in cash, a car, and nine firearms.

In exchange for Martov’s guilty plea, the government agreed not to pursue criminal forfeiture. But the government never agreed to forgo administrative forfeiture proceedings, which it had already initiated by sending notice to Martov and his attorney. Martov responded to the government’s notice of administrative forfeiture by filing claims for the car and guns. The government denied both claims and declared the property forfeited.

Martov then brought this action in the district court, seeking the return of the property. The district court denied relief, and we now affirm, as Martov has failed to advance any meritorious arguments. In doing so, however, we note our reservations with the procedural path that the government took in executing the forfeiture.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Catherine Wanko v. Board of Trustees of Indiana

Case No.: 18-2767

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

Focus: Title VII Violation – Discrimination

Catherine Wanko brought this suit under Title VI of the Civil Rights Act, 42 U.S.C. § 2000d, alleging Indiana University (IU) discriminated against her by having her retake her entire first‐year curriculum at IU’s School of Dentistry. In discovery, IU produced spreadsheets containing the demographics and grades of the students in Wanko’s class. Those spreadsheets showed no student, let alone one outside of a protected class, was similarly situated to Wanko. Wanko moved to compel the production of the actual student records, but that motion was denied. As Wanko was unable to show a sufficient comparator for her discrimination claim, the district court granted summary judgment to IU. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Tyrone Gabb v. Wexford Health Sources, Inc., et al.

Case No.: 18-2351

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

Focus: Prisoner – 8th Amendment Violation

While serving a prison sentence at the Lawrence Correctional Center in Illinois, Tyrone Gabb experienced severe back pain whenever he stood too long (15 to 20 minutes). After treatments he received did not relieve his pain, Gabb sued two members of the medical staff at Lawrence, Dr. John Coe and Nurse Tammy Kimmel, alleging they were deliberately indifferent to his back pain in violation of his constitutional right to be free from cruel and unusual punishments. Gabb also sued Wexford Health Sources, Inc., the private company that provided medical services at Lawrence. The district court granted summary judgment to all defendants, and Gabb appeals. Because Gabb has not presented any evidence showing the defendants caused him any harm, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: John Doe v. Kevin K. McAleenan

Case No.: 17-3521

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

Focus: Immigration – Jurisdiction

Plaintiff John Doe, an Iranian national, petitioned for conditional permanent residency in 2013. He used the EB-5 admission category, which offers visas for immigrants who invest in new job-creating enterprises. The United States Citizenship and Immigration Service (“USCIS” or “agency”) initially approved Doe’s petition but revoked its approval roughly two years later. Doe sought judicial review of the agency’s actions under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701 et seq. But the district court concluded that Congress had stripped its jurisdiction to review discretionary revocations of visa petitions and dismissed Doe’s suit. See 8 U.S.C. § 1252(a)(2)(B)(ii).

We affirm. Doe relies on the narrow jurisdictional gateway offered by Musunuru v. Lynch, 831 F.3d 880 (7th Cir. 2016). In Musunuru we held that § 1252(a)(2)(B)(ii) doesn’t preclude judicial review of purely procedural rulings during the adjudication of a visa petition. 831 F.3d at 887–88. But the ruling at issue here wasn’t procedural. Doe is challenging the agency’s substantive decision-making. And he cannot evade a jurisdiction-stripping statute by repackaging his substantive complaints as procedural objections.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Jeremiah Felton v. Bryan Bartow

Case No.: 18-1954

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

Focus: Ineffective Assistance of Counsel

A jury convicted Jeremiah Felton of first degree intentional homicide in Wisconsin state court for the death of his three‐month‐old son, Jeremiah Felton Jr. (J.J.). The jury heard testimony about the days leading up to J.J.’s death, such as those who cared for and had contact with him, including Felton. The jury also heard about Felton’s conversations with police, whom he told that J.J. had slipped and hit his head in the bathtub, and with fellow jail inmate, Douglas House, who testified that Felton said he had swung J.J. into a bathroom door. J.J.’s treating physicians and the medical examiner also testified about J.J.’s injuries and cause of death, which two of the physicians stated, in part, was due to shaking. The medical examiner concluded that blunt force trauma was the cause of death. The jury found Felton guilty.

Felton sought post‐conviction relief in the Wisconsin state court based on ineffective assistance of counsel. In particular, Felton cited his attorney’s failure to object to the prosecutor’s statement during closing argument that House could not receive a sentence modification for his testimony in Felton’s trial and failure to secure medical expert testimony to rebut the State’s witnesses. At the post‐conviction hearing, Felton’s counsel testified as well as three medical experts who concluded J.J. had not been shaken and J.J.’s injuries were consistent with a fall of two to four feet. The state trial court denied Felton’s petition, and the Wisconsin Court of Appeals affirmed the denial. The Wisconsin Supreme Court summarily denied Felton’s petition for review. Felton sought a writ of habeas corpus under 28 U.S.C. § 2254 in the district court. The district court denied Felton’s petition, and Felton now appeals to this court. Because the decision of the Wisconsin Court of Appeals was not unreasonable, Felton’s petition is denied.

Petition Denied

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7^th Circuit Court of Appeals

Case Name: City of Chicago v. Robbin L. Fulton, et al. 

Case No.: 18-2527; 18-2793; 18-2835; 18-3023

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

Focus: Bankruptcy – Automatic Stay

In this consolidated appeal of four Chapter 13 bankruptcies, we consider whether the City of Chicago may ignore the Bankruptcy Code’s automatic stay and continue to hold a debtor’s vehicle until the debtor pays her outstanding parking tickets. Prior to the debtors’ filing for bankruptcy, the City impounded each of their vehicles for failure to pay multiple traffic fines. After the debtors filed their Chapter 13 petitions, the City refused to return their vehicles, claiming it needed to maintain possession to continue perfection of its possessory liens on the vehicles and that it would only return the vehicles when the debtors paid in full their outstanding fines. The bankruptcy courts each held that the City violated the automatic stay by “exercising control” over property of the bankruptcy estate and that none of the exceptions to the stay applied. The courts ordered the City to return debtors’ vehicles and imposed sanctions on the City for violating the stay.

This is not our first time addressing this issue: in Thompson v. General Motors Acceptance Corp., 566 F.3d 699 (7th Cir. 2009), we held that a creditor must comply with the automatic stay and return a debtor’s vehicle upon her filing of a bankruptcy petition. We decline the City’s request to overrule Thompson. We therefore affirm the bankruptcy courts’ judgments relying on Thompson, and we also agree with the bankruptcy courts that none of the exceptions to the stay apply.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Duncan Place Owners Association, et al. v. Danze, Inc., et al.

Case No.: 17-3474

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

Focus: Product Liability – Negligence

In 2009 faucets manufactured by Illinois-based Danze, Inc., were installed in all 63 units of a new condominium building in Seattle, Washington. In the years that followed, some of the faucets failed, causing damage to the building and replacement costs. The condominium association, Duncan Place Owners Association, filed a proposed class-action suit against Danze raising multiple claims for relief, including breach of express warranty, unjust enrichment, negligence, and strict product liability. The district judge dismissed all but one of the claims and later entered summary judgment on the sole remaining claim.

Duncan Place appeals, seeking reinstatement of the claims that were dismissed on the pleadings. We affirm, with one narrow exception. The Washington Product Liability Act (“WPLA” or “the Act”) subsumes all common-law product liability claims, so we construe Duncan Place’s negligence and strict-liability claims as one cause of action under the Act. In a suit for damages caused by a defective product, Washington’s “independent duty doctrine” (formerly known as the “economic loss doctrine”) generally bars recovery in tort for direct and consequential economic losses stemming from the product’s failure—that is, damages associated with the “injury” to the product itself. But the doctrine does not bar recovery for damage to other property caused by the defective product. See Eastwood v. Horse Harbor Found., Inc., 241 P.3d 1256, 1265 (Wash. 2010) (en banc). Duncan Place alleges in general terms that the defective faucets caused damage to other condominium property. To that limited extent, the WPLA claim is not blocked by the independent duty doctrine and should have been allowed to proceed.

Duncan Place’s arguments for reinstatement of its warranty and unjust-enrichment claims are new on appeal. Arguments not raised in the district court are waived, so we affirm the dismissal of the warranty and unjust-enrichment claims.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. William Block

Case No.: 18-2128

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

Focus: Sentencing – Jurisdiction 

In April 2014, William Block completed a 75-month prison term and began a three-year term of supervised release. With a little more than two months left in that term, the Probation Office reported to the district court Block had violated release conditions. Over a year later, the district court conducted a hearing and revoked Block’s supervised release, sentencing him to 60 months’ imprisonment followed by two more years of supervised release. Block appeals, claiming the district court lacked jurisdiction to revoke his supervised release. We agree with Block and vacate the district court’s judgment.

Vacated

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7^th Circuit Court of Appeals

Case Name: United States of America v. Roberto Macias

Case No.: 18-1981

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

Focus: Sentencing Guidelines – Enhancement

Roberto Macias helped move drug money from Chicago to Mexico. At his bench trial, he challenged a drug-conspiracy charge by testifying he thought the cash came from human smuggling, not drug trafficking. But the district judge did not believe him. The judge convicted him and imposed a two-level enhancement under U.S.S.G. § 2D1.1(b)(15)(D) for obstructing justice by testifying falsely. On appeal, Macias argues this enhancement does not apply to a defendant who perjures himself at trial. He also argues the judge failed to find all perjury elements independently and explicitly, as constitutionally required. But Macias waived these challenges, foreclosing appellate review.

Dismissed

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7^th Circuit Court of Appeals

Case Name: Steven Klikno, et al. v. United States of America

Case No.: 16-2312; 17-1824; 17-1929; 17-2233; 17-2339; 17-2514

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

Focus: Sentencing Guidelines

The Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), provides for an enhanced sentence for an ex-felon who possesses a firearm in violation of 18 U.S.C. § 922(g), if that person has “three previous convictions … for a violent felony or a serious drug offense, or both … .” ACCA defines a “violent felony” to include a federal or state crime punishable by more than a year’s imprisonment that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). While that definition may seem straightforward to the uninitiated, it has spawned almost as many questions as there are federal or state crimes.

The Supreme Court has addressed this matter several times, in an effort to clarify just how much violence is required for a crime to be qualifying, and how courts are to go about assessing that issue. It most recently spoke to these issues in Stokeling v. United States, 139 S. Ct. 544 (2019). In each of the six cases now before us, we concluded that the ACCA enhancement applied; the petitioner filed a petition for certiorari with the Court; the Court held that petition for the decision in Stokeling; and it now has remanded the case to us for reconsideration in light of Stokeling. Because each of these cases raises the same question—whether the Illinois statutes prohibiting robbery and armed robbery, 720 ILCS 5/18-1(a), 5/18-2, qualify as crimes of violence for ACCA purposes—we have consolidated them for disposition. In summary, we conclude that nothing in the Supreme Court’s decision in Stokeling requires a different result in any of the six cases discussed here. Our conclusions follow: ∙ In No. 16-2312, we again DENY a certificate of appealability for Steven Klikno. ∙ In No. 17-1824, we AFFIRM the denial of Joseph Van Sach’s motion under 28 U.S.C. § 2255. ∙ In No. 17-1929, we AFFIRM the denial of Ernest Shields’s motion under 28 U.S.C. § 2255. ∙ In No. 17-2233, we AFFIRM the denial of Tony Lipscomb’s motion under 28 U.S.C. § 2255. ∙ In No. 17-2339, we AFFIRM the denial of James Pinkney’s motion under 28 U.S.C. § 2255. ∙ In No. 17-2514, we AFFIRM the denial of Lashon Browning’s motion under 28 U.S.C. § 2255.

So Ordered

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Larry C. Lokken

Case No.: 2017AP2087-CR

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

Focus: Sentencing Guidelines

Larry Lokken appeals a judgment convicting him of three counts of misconduct in office and five counts of theft in a business setting, as a party to the crime, of an amount greater than $10,000. He also appeals an order denying his motion for postconviction relief. Lokken argues, for several reasons, that the circuit court unlawfully sentenced him on one of the theft counts and that he is therefore entitled to resentencing on all counts before a different judge. Specifically, Lokken asserts the court: (1) imposed a sentence unauthorized by statute; (2) ordered an unreasonable amount of restitution as a condition of his probation; and (3) inadequately explained how its sentence met the minimum custody standard. We reject Lokken’s arguments and affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Dustin M. Yanda

Case No.: 2018AP412-CR

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

Focus: Abuse of Discretion – Sentence Modification

Dustin Yanda appeals a judgment of conviction for causing injury by intoxicated use of a motor vehicle and an order denying his motion for sentence modification. Yanda discovered after sentencing that he was statutorily ineligible to participate in the Challenge Incarceration Program (CIP) and the Earned Release Program (ERP), despite the circuit court having declared him eligible for those programs at sentencing. Yanda subsequently sought sentence modification, alleging that his statutory ineligibility constituted a “new factor” warranting sentence modification. On appeal, Yanda argues the circuit court applied an improper legal standard when it denied his motion, based upon the court’s statement that Yanda’s statutory ineligibility for the programs did not “frustrate the purpose of the sentence.”

We conclude the circuit court applied the proper legal standard when determining whether the new factor of Yanda’s statutory ineligibility for the CIP and the ERP justified modifying Yanda’s sentence. Specifically, we conclude the court’s remark—that Yanda’s statutory ineligibility did not “frustrate the purpose” of his sentence—did not violate State v. Harbor, 2011 WI 28, 333 Wis. 2d 53, 797 N.W.2d 828. Harbor made clear that there is no independent requirement that a defendant demonstrate that an alleged new factor frustrates the purpose of his or her sentence. Harbor did not, however, state that a circuit court cannot consider, during the exercise of its discretionary authority to determine whether a new factor justifies sentence modification, whether the new factor frustrates the purpose of the defendant’s sentence. Accordingly, we hold that the court here did not erroneously exercise its discretion when, in determining whether the new factor of Yanda’s statutory ineligibility justified sentence modification, it considered whether that factor frustrated the court’s sentencing goals. We reject Yanda’s argument to the contrary and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Desmond Marques Manns

Case No.: 2018AP683-CR

Officials: Kessler, Brennan and Kloppenburg, JJ.

Focus: Ineffective Assistance of Counsel

Desmond Marques Manns appeals from a judgment, entered upon a jury’s verdict, convicting him on one count of possession of a firearm by a felon. He also appeals from an order denying his postconviction motion without a hearing. Manns contends that he did not make a valid jury waiver on the element of his prior conviction and that he received ineffective assistance from trial counsel. We reject Manns’s contentions and affirm the trial court.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Jessy A. Rivard

Case No.: 2018AP1070-CR

Officials: HRUZ, J.

Focus: OWI – 6^th Amendment Violation

Jessy Rivard appeals a judgment of conviction, entered upon his no-contest plea, to third-offense operating a motor vehicle while intoxicated (OWI). He asserts the circuit court erred by denying his motion to collaterally attack a 2006 second-offense OWI conviction. Rivard was not represented by counsel during his second-offense OWI proceedings. He now claims that his waiver of his right to counsel in those proceedings was not knowing, intelligent and voluntary, due to an allegedly defective colloquy with the court regarding his waiver. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Carl. L. Barrett

Case No.: 2018AP1701-CR

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

Focus: Abuse of Discretion – Other Acts Evidence

Carl L. Barrett appeals a judgment, entered upon a jury’s verdicts, convicting him of one count of first-degree reckless homicide and three counts of first-degree recklessly endangering safety, all as a party to the crimes and with the use of a dangerous weapon. See WIS. STAT. §§ 940.02(1), 941.30(1), 939.05, 939.63(1)(b) (2013-14). He also appeals the order denying his postconviction motion. Because the trial court properly exercised its discretion when it admitted other acts evidence and because Barrett’s combined total sentence was neither unduly harsh nor unconscionable, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. T.A.D.S.

Case No.: 2018AP2173

Officials: KESSLER, J.

Focus: Termination of Parental Rights

T.A.D.S. appeals the order terminating his parental rights to his daughter, T.S. T.A.D.S. argues that his no contest plea was not knowing, intelligent, and voluntary. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Jerry A. Quinn, Jr.

Case No.: 2018AP472-CR

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

Focus: Ineffective Assistance of Counsel

Jerry A. Quinn, Jr., appeals from a judgment of conviction and an order denying his postconviction motion seeking a new trial based on newly discovered evidence or, in the alternative, due to the ineffective assistance of trial counsel. For the reasons that follow, we affirm.

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WI Court of Appeals – District II

Case Name: Talmer Bank and Trust v. Foxwood at Geneva National, LLC, et al.

Case No.: 2018AP1175

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

Focus: Deficiency Judgment

Michael and Sandra Lampe appeal an order denying their motion to vacate a deficiency judgment against them pursuant to WIS. STAT. § 806.07 (2017-18). We affirm.

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WI Court of Appeals – District IV

Case Name: John Poehling, Sr., et al. v. Trust Point, Inc., et al.

Case No.: 2017AP922; 2018AP141

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

Focus: Segregated Trust

These appeals involve a dispute between Trust Point, Inc., trustee of the Gerhard G. Poehling Family Trust (the “Trust” or “Main Trust”), and two trust beneficiaries, John Poehling, Sr., and John Poehling, Jr. (the “objectors”). After significant conflict between the objectors and Trust Point, the decision was made that a new separate trust (the “Segregated Trust”) would be created for the benefit of the objectors. On appeal, the objectors challenge several aspects relating to the creation and funding of the Segregated Trust. We reject all of the objectors’ challenges and, therefore, affirm the circuit court.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Graham L. Stowe

Case No.: 2017AP1891-CR

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

Focus: Sentencing – Conditional Release

Graham Stowe was found not guilty by reason of mental disease or mental defect (NGI) based on charges of violent criminal conduct in 2004 and was committed to the custody of the Department of Health Services (the department). Stowe now appeals a circuit court order denying his most recent petition for conditional release from department custody under WIS. STAT. § 971.17(4) (2017-18), and appeals the court’s order rejecting his arguments that § 971.17(4)(d) is unconstitutional on its face and as applied to him. Stowe also argues that the State failed to prove by clear and convincing evidence that, if conditionally released, he would pose a significant risk of bodily harm to himself or others or a significant risk of property damage. See id. We reject each of Stowe’s arguments and affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Corey J. Hershey

Case No.: 2018AP50-CR

Officials: Blanchard, Kloppenburg and Fitzpatrick, JJ.

Focus: Search Warrant – Probable Cause

Corey Hershey appeals a judgment of conviction for possession of child pornography. Hershey contends that the search warrant that police executed to search Hershey’s home was unsupported by probable cause and that the court erred by applying the mandatory minimum at sentencing. For the reasons set forth in this opinion, we conclude that the search warrant was supported by probable cause and the court did not err at sentencing. We affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Nichole M. Day, et al.

Case No.: 2018AP276

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

Focus: Child Placement

Nichole Day, pro se appellant, appeals a circuit court order revising a prior child placement order. Michael Hernandez, by his counsel, and the child’s guardian ad litem have filed responsive briefs arguing that the circuit court’s decision should be upheld. We affirm the order of the circuit court.

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WI Court of Appeals – District IV

Case Name: Keith E. Schroeder, et al. v. Zurich American Insurance Company, et al.

Case No.: 2018AP1737

Officials: Blanchard, Kloppenburg and Fitzpatrick, JJ.

Focus: Insurance Claim – Negligence

Keith Schroeder and his insurer, Humana Insurance Company (collectively, Schroeder), appeal a summary judgment granted in favor of Fahrner Asphalt Sealers. Schroeder sued Fahrner for negligence related to a chip seal project on a road in the Town of Fulton, and Schroeder also sued Fahrner’s insurer, Zurich American Insurance Company. The circuit court determined that Fahrner was an “agent” of the Town and entitled to governmental immunity under WIS. STAT. § 893.80(4) (2017-18), and dismissed Schroeder’s personal injury claims. We agree that Fahrner was acting as an agent of the Town and is entitled to governmental immunity. Accordingly, we affirm.

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WI Court of Appeals – District IV

Case Name: Jackson County v. Steven John Peplinski

Case No.: 2019AP171

Officials: FITZPATRICK, J.

Focus: Court Error – Motion for Reconsideration

Steven Peplinski appeals from a judgment of conviction and an order denying his motion for reconsideration entered by the Jackson County Circuit Court. A jury found Peplinski guilty of disorderly conduct in violation of a Jackson County ordinance. Peplinski contends that the circuit court erred by denying his motions for a continuance. Additionally, Peplinski claims that he was denied a fair trial because the circuit court prevented him from introducing certain evidence and because his indigent status prevented him from subpoenaing witnesses. Peplinski further contends that the circuit court erred by denying his motion for reconsideration in which he alleges that one of the witnesses at trial perjured himself. Because I conclude that each argument advanced by Peplinski is undeveloped or lacks any merit, I affirm the judgment of conviction and the order denying Peplinski’s motion for reconsideration.

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WI Court of Appeals – District IV

Case Name: Adams County Health & Human Services Department v. D.J.S.

Case No.: 2019AP506

Officials: KLOPPENBURG, J.

Focus: Termination of Parental Rights

D.J.S. appeals an order terminating his parental rights to E.W.D. A jury found that three grounds existed to terminate his parental rights: continuing need of protection or services, abandonment, and failure to assume parental responsibility. The circuit court subsequently held a dispositional hearing and determined that it was in E.W.D.’s best interests to terminate D.J.S.’s parental rights. D.J.S. raises three issues on appeal: (1) the circuit court erred by not dismissing as unconstitutional the first ground for termination of his parental rights, continuing need of protection or services; (2) the evidence introduced at the jury trial to support that first ground prejudiced his defense to the other two grounds, requiring a new trial on those grounds; and (3) the circuit court violated his statutory right to be in the same courtroom as the judge during the dispositional hearing when the judge attended the hearing by video conferencing technology over D.J.S.’s objection. D.J.S. asserts that he is entitled to both a new grounds trial and a new dispositional hearing.

As to the first issue, I assume, without deciding, that the constitutional argument D.J.S. makes with regard to the first ground for termination of parental rights, continuing need of protection or services, is correct and that, therefore, that ground should have been dismissed. As to the second issue, I reject D.J.S.’s argument that the evidence introduced to support the first ground at the jury trial prejudiced his defense to the other two grounds, and, therefore, I conclude that he is not entitled to a new trial on those two grounds. As to the third issue, I conclude that D.J.S. had a statutory right under WIS. STAT. § 885.60(2) to be in the same courtroom as the judge during the dispositional hearing, and that the circuit court erred by attending the dispositional hearing via videoconferencing technology over D.J.S.’s objection; I also conclude that this error is structural, thereby requiring automatic reversal of the court’s disposition. Accordingly, I reverse and remand for a new dispositional hearing only.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Rural Mutual Insurance Company v. Lester Buildings, LLC, et al.

Case No.: 2019 WI 70

Focus: Statutory Interpretation 

Rural Mutual Insurance Company seeks review of an unpublished per curiam decision of the court of appeals affirming the circuit court’s grant of summary judgment dismissing Rural Mutual’s subrogation claims. The circuit court determined that Rural Mutual’s claims against Lester Buildings, LLC, Phoenix Insurance Company, Van Wyks, Inc., and West Bend Mutual Insurance Company were barred pursuant to a subrogation waiver contained in a Lester Buildings’ contract with Rural Mutual’s insured, Jim Herman, Inc. (“Herman”). The circuit court also found that Wis. Stat. § 895.447 did not void that subrogation waiver.

The court of appeals affirmed the circuit court and dismissed Rural Mutual’s claims. However, the court of appeals declined to address whether Wis. Stat. § 895.447 voided the subrogation waiver, reasoning that the argument was insufficiently developed. We granted review as to two issues: Does § 895.447 void the subrogation waiver at issue? And was the subrogation waiver an unenforceable exculpatory contract contrary to public policy?

We conclude that Wis. Stat. § 895.447 does not void the subrogation waiver in Lester Buildings’ contract because the waiver does not limit or eliminate tort liability. We also conclude that the subrogation waiver is not an unenforceable exculpatory contract contrary to public policy. We therefore affirm the court of appeals.

Affirmed

Concur:

Dissent: KELLY, J. dissents, joined by A.W. BRADLEY, J. (opinion filed).

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WI Supreme Court

Case Name: State of Wisconsin v. Tyrus Lee Cooper

Case No.: 2019 WI 73

Focus: Plea Withdrawal

Mr. Tyrus Lee Cooper moved the circuit court, prior to sentencing, to withdraw his guilty plea. The circuit court refused his request. Two years later, we disciplined his attorney (Michael J. Hicks) for professional misconduct that included his handling of Mr. Cooper’s defense. Mr. Cooper believes our opinion in that disciplinary proceeding proved his counsel had provided ineffective assistance in his criminal case. That, he says, is a “fair and just reason” for withdrawing his plea. We disagree.

Affirmed

Concur:

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

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WI Supreme Court

Case Name: Alan W. Pinter v. Village of Stetsonville

Case No.: 2019 WI 74

Focus: Court Error – Nuisance Claim

The petitioner, Alan Pinter, seeks review of an unpublished court of appeals decision affirming the circuit court’s grant of summary judgment dismissing his claims against the Village of Stetsonville for negligence and private nuisance. Pinter sued the Village after wastewater backed up into his basement. He asserts that the court of appeals erred in determining that the Village is immune from suit for negligence pursuant to Wis. Stat. § 893.80(4) (2015-16). Further, he contends that the court of appeals erred in affirming the grant of summary judgment on his private nuisance claim on the grounds that he did not present expert testimony with regard to causation.

Specifically, Pinter argues that the Village’s oral policy to pump water out of a lift station when it reached a certain level created a ministerial duty to act. He further contends that expert testimony is not required to establish the requisite causation to maintain his private nuisance claim. We conclude that the oral policy in question here does not rise to the level of a ministerial duty. The proffered “rule of thumb” is not “absolute, certain and imperative, involving merely the performance of a specific task when the law imposes, prescribes and defines the time, mode, and occasion for its performance with such certainty that nothing remains for judgment or discretion.” See Lister v. Bd. of Regents of Univ. of Wis. Sys., 72 Wis. 2d 282, 301, 240 N.W.2d 610 (1976). Because such a task is discretionary, the Village is immune from suit for negligence.

Further, we conclude that the circuit court properly granted summary judgment to the Village on Pinter’s private nuisance claim. Pursuant to the facts of this case, expert testimony was required to raise a genuine issue of material fact as to causation. Accordingly, we affirm the decision of the court of appeals.

Affirmed

Concur:

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

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WI Supreme Court

Case Name: The League of Women Voters, et al. v. Tony Evers

Case No.: 2019 WI 75

Focus: Extraordinary Sessions

We accepted the League of Women Voters of Wisconsin’s petition to bypass the court of appeals in order to decide whether the Wisconsin Legislature’s December 2018 extraordinary session comported with the Wisconsin Constitution. The League maintains that extraordinary sessions are unconstitutional; therefore, all legislation passed during the December 2018 session is void ab initio and the Senate’s confirmation of 82 gubernatorial appointees during the session was invalid. Governor Tony Evers agrees with the League. The Legislature argues that extraordinary sessions clearly conform with the Wisconsin Constitution and Wis. Stat. § 13.02 (2017- 18), making the passage of the three Acts as well as the appointments entirely lawful. The circuit court agreed with the League and the Governor, declared the Acts unconstitutional, and issued a temporary injunction enjoining the enforcement of all three Acts and vacating all 82 appointments.

We hold that extraordinary sessions do not violate the Wisconsin Constitution because the text of our constitution directs the Legislature to meet at times as “provided by law,” and Wis. Stat. § 13.02(3) provides the law giving the Legislature the discretion to construct its work schedule, including preserving times for it to meet in an extraordinary session. The work schedule the Legislature formulated for its 2017-2018 biennial session established the beginning and end dates of the session period and specifically contemplated the convening of an extraordinary session, which occurred within the biennial session. The circuit court invaded the province of the Legislature in declaring the extraordinary session unconstitutional, enjoining enforcement of the three Acts, and vacating the 82 appointments. We vacate the circuit court’s order and remand the matter to the circuit court with directions to dismiss the League’s complaint.

Vacated and remanded

Concur:

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

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Supreme Court Digests

United States Supreme Court

Case Name: Virginia House of Delegates, et al. v. Golden Bethune-Hill, et al.

Case No.: 18-281

Focus: Standing

The Court resolves in this opinion a question of standing to appeal. In 2011, after the 2010 census, Virginia redrew legislative districts for the State’s Senate and House of Delegates. Voters in 12 of the impacted House districts sued two Virginia state agencies and four election officials (collectively, State Defendants) charging that the redrawn districts were racially gerrymandered in violation of the Fourteenth Amendment’s Equal Protection Clause. The Virginia House of Delegates and its Speaker (collectively, the House) intervened as defendants and carried the laboring oar in urging the constitutionality of the challenged districts at a bench trial, see Bethune-Hill v. Virginia State Bd. of Elections, 141 F. Supp. 3d 505 (ED Va. 2015), on appeal to this Court, see Bethune-Hill v. Virginia State Bd. of Elections, 580 U. S. ___ (2017), and at a second bench trial. In June 2018, after the second bench trial, a three-judge District Court in the Eastern District of Virginia, dividing 2 to 1, held that in 11 of the districts “the [S]tate ha[d] [unconstitutionally] sorted voters . . . based on the color of their skin.” Bethune-Hill v. Virginia State Bd. of Elections, 326 F. Supp. 3d 128, 180 (2018). The court therefore enjoined Virginia “from conducting any elections . . . for the office of Delegate . . . in the Challenged Districts until a new redistricting plan is adopted.” Id., at 227. Recognizing the General Assembly’s “primary jurisdiction” over redistricting, the District Court gave the General Assembly approximately four months to “adop[t] a new redistricting plan that eliminate[d] the constitutional infirmity.” Ibid.

A few weeks after the three-judge District Court’s ruling, Virginia’s Attorney General announced, both publicly and in a filing with the District Court, that the State would not pursue an appeal to this Court. Continuing the litigation, the Attorney General concluded, “would not be in the best interest of the Commonwealth or its citizens.” Defendants’ Opposition to Intervenor-Defendants’ Motion to Stay Injunction Pending Appeal Under 28 U. S. C. §1253 in No. 3:14–cv–852 (ED Va.), Doc. 246, p. 1. The House, however, filed an appeal to this Court, App. to Juris. Statement 357–358, which the State Defendants moved to dismiss for want of standing. We postponed probable jurisdiction, 586 U. S. ___ (2018), and now grant the State Defendants’ motion. The House, we hold, lacks authority to displace Virginia’s Attorney General as representative of the State. We further hold that the House, as a single chamber of a bicameral legislature, has no standing to appeal the invalidation of the redistricting plan separately from the State of which it is a part.

Dismissed

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

Concurring:

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United States Supreme Court

Case Name: Terance Martez Gamble v. United States

Case No.: 17-646

Focus: Double Jeopardy

We consider in this case whether to overrule a longstanding interpretation of the Double Jeopardy Clause of the Fifth Amendment. That Clause provides that no person may be “twice put in jeopardy” “for the same offence.” Our double jeopardy case law is complex, but at its core, the Clause means that those acquitted or convicted of a particular “offence” cannot be tried a second time for the same “offence.” But what does the Clause mean by an “offence”?

We have long held that a crime under one sovereign’s laws is not “the same offence” as a crime under the laws of another sovereign. Under this “dual-sovereignty” doctrine, a State may prosecute a defendant under state law even if the Federal Government has prosecuted him for the same conduct under a federal statute.

Or the reverse may happen, as it did here. Terance Gamble, convicted by Alabama for possessing a firearm as a felon, now faces prosecution by the United States under its own felon-in-possession law. Attacking this second prosecution on double jeopardy grounds, Gamble asks us to overrule the dual-sovereignty doctrine. He contends that it departs from the founding-era understanding of the right enshrined by the Double Jeopardy Clause. But the historical evidence assembled by Gamble is feeble; pointing the other way are the Clause’s text, other historical evidence, and 170 years of precedent. Today we affirm that precedent, and with it the decision below.

Affirmed

Dissenting: GINSBURG, J., and GORSUCH, J., filed dissenting opinions.

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

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United States Supreme Court

Case Name: Virginia Uranium, Inc., et al. v. John Warren, et al.

Case No.: 16-1275

Focus: Supremacy Clause

Virginia Uranium, Inc., wants to mine raw uranium ore from a site near Coles Hill, Virginia, but Virginia law flatly prohibits uranium mining in the Commonwealth. The company filed suit, alleging that, under the Constitution’s Supremacy Clause, the Atomic Energy Act (AEA) preempts state uranium mining laws like Virginia’s and ensconces the Nuclear Regulatory Commission (NRC) as the lone regulator in the field. Both the District Court and the Fourth Circuit rejected the company’s argument, finding that while the AEA affords the NRC considerable authority over the nuclear fuel life cycle, it offers no hint that Congress sought to strip States of their traditional power to regulate mining on private lands within their borders.

Affirmed

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

Concurring: GINSBURG, J., filed an opinion concurring in the judgment, in which SOTOMAYOR and KAGAN, JJ., joined.

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United States Supreme Court

Case Name: Manhattan Community Access Corporation, et al. v. Deedee Halleck, et al.

Case No.: 17-1702

Focus: 1st Amendment Violation

New York state law requires cable operators to set aside channels on their cable systems for public access. Those channels are operated by the cable operator unless the local government chooses to itself operate the channels or designates a private entity to operate the channels. New York City (the City) has designated a private nonprofit corporation, petitioner Manhattan Neighborhood Network (MNN), to operate the public access channels on Time Warner’s cable system in Manhattan. Respondents DeeDee Halleck and Jesus Papoleto Melendez produced a film critical of MNN to be aired on MNN’s public access channels. MNN televised the film. MNN later suspended Halleck and Melendez from all MNN services and facilities. The producers sued, claiming that MNN violated their First Amendment free-speech rights when it restricted their access to the public access channels because of the content of their film. The District Court dismissed the claim on the ground that MNN is not a state actor and therefore is not subject to First Amendment constraints on its editorial discretion. Reversing in relevant part, the Second Circuit concluded that MNN is a state actor subject to First Amendment constraints.

Reversed in part and remanded

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

Concurring:

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United States Supreme Court

Case Name: PDR Network, LLC, et al. Carlton & Harris Chiropractic, Inc.

Case No.: 17-1705

Focus: Statutory Interpretation

This case concerns two federal statutes, the Telephone Consumer Protection Act of 1991 (Telephone Act) and the Administrative Orders Review Act (Hobbs Act). The first statute generally makes it unlawful for any person to send an “unsolicited advertisement” by fax. 47 U. S. C. §227(b)(1)(C). The second statute provides that the federal courts of appeals have “exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of ” certain “final orders of the Federal Communication Commission.” 28 U. S. C. §2342(1).

In 2006, the FCC issued an Order stating that the term “unsolicited advertisement” in the Telephone Act includes certain faxes that “promote goods or services even at no cost,” including “free magazine subscriptions” and “catalogs.” 21 FCC Rcd. 3787, 3814. The question here is whether the Hobbs Act’s vesting of “exclusive jurisdiction” in the courts of appeals to “enjoin, set aside, suspend,” or “determine the validity” of FCC “final orders” means that a district court must adopt, and consequently follow, the FCC’s Order interpreting the term “unsolicited advertisement” as including certain faxes that promote “free” goods. We have found it difficult to answer this question, for the answer may depend upon the resolution of two preliminary issues. We therefore vacate the judgment of the Court of Appeals and remand this case so that the Court of Appeals can consider these preliminary issues.

Vacated and remanded

Dissenting:

Concurring: THOMAS, J., filed an opinion concurring in the judgment, in which GORSUCH, J., joined. KAVANAUGH, J., filed an opinion concurring in the judgment, in which THOMAS, ALITO, and GORSUCH, JJ., joined.

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United States Supreme Court

Case Name: The American Legion, et al. American Humanist Association, et al.

Case No.: 17-1717; 18-18

Focus: 1st Amendment Violation

Since 1925, the Bladensburg Peace Cross (Cross) has stood as a tribute to 49 area soldiers who gave their lives in the First World War. Eighty-nine years after the dedication of the Cross, respondents filed this lawsuit, claiming that they are offended by the sight of the memorial on public land and that its presence there and the expenditure of public funds to maintain it violate the Establishment Clause of the First Amendment. To remedy this violation, they asked a federal court to order the relocation or demolition of the Cross or at least the removal of its arms. The Court of Appeals for the Fourth Circuit agreed that the memorial is unconstitutional and remanded for a determination of the proper remedy. We now reverse.

Reversed

Dissenting: GINSBURG, J., filed a dissenting opinion, in which SOTOMAYOR, J., joined.

Concurring: BREYER, J., filed a concurring opinion, in which KAGAN, J., joined. KAVANAUGH, J., filed a concurring opinion. KAGAN, J., filed an opinion concurring in part. THOMAS, J., filed an opinion concurring in the judgment. GORSUCH, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined

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United States Supreme Court

Case Name: Edward G. McDonough v. Youel Smith, et al.

Case No.: 18-485

Focus: Sufficiency of Evidence

Petitioner Edward McDonough alleges that respondent Youel Smith fabricated evidence and used it to pursue criminal charges against him. McDonough was acquitted, then sued Smith under 42 U. S. C. §1983. The courts below, concluding that the limitations period for McDonough’s fabricated-evidence claim began to run when the evidence was used against him, determined that the claim was untimely. We hold that the limitations period did not begin to run until McDonough’s acquittal, and therefore reverse.

Reversed

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

Concurring:

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United States Supreme Court

Case Name: Herman Avery Gundy v. United States

Case No.: 17-6086

Focus: Nondelegation Doctrine

The nondelegation doctrine bars Congress from transferring its legislative power to another branch of Government. This case requires us to decide whether 34 U. S. C. §20913(d), enacted as part of the Sex Offender Registration and Notification Act (SORNA), violates that doctrine. We hold it does not. Under §20913(d), the Attorney General must apply SORNA’s registration requirements as soon as feasible to offenders convicted before the statute’s enactment. That delegation easily passes constitutional muster.

Affirmed

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

Concurring: ALITO, J., filed an opinion concurring in the judgment.

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United States Supreme Court

Case Name: Rose Mary Knick v. Township of Scott, Pennsylvania, et al.

Case No.: 17-647

Focus: 5th Amendment Violation

The Takings Clause of the Fifth Amendment states that “private property [shall not] be taken for public use, without just compensation.” In Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U. S. 172 (1985), we held that a property owner whose property has been taken by a local government has not suffered a violation of his Fifth Amendment rights—and thus cannot bring a federal takings claim in federal court—until a state court has denied his claim for just compensation under state law.

The Williamson County Court anticipated that if the property owner failed to secure just compensation under state law in state court, he would be able to bring a “ripe” federal takings claim in federal court. See id., at 194. But as we later held in San Remo Hotel, L. P. v. City and County of San Francisco, 545 U. S. 323 (2005), a state court’s resolution of a claim for just compensation under state law generally has preclusive effect in any subsequent federal suit. The takings plaintiff thus finds himself in a Catch-22: He cannot go to federal court without going to state court first; but if he goes to state court and loses, his claim will be barred in federal court. The federal claim dies aborning.

The San Remo preclusion trap should tip us off that the state-litigation requirement rests on a mistaken view of the Fifth Amendment. The Civil Rights Act of 1871, after all, guarantees “a federal forum for claims of unconstitutional treatment at the hands of state officials,” and the settled rule is that “exhaustion of state remedies ‘is not a prerequisite to an action under [42 U. S. C.] §1983.’” Heck v. Humphrey, 512 U. S. 477, 480 (1994) (quoting Patsy v. Board of Regents of Fla., 457 U. S. 496, 501 (1982)). But the guarantee of a federal forum rings hollow for takings plaintiffs, who are forced to litigate their claims in state court.

We now conclude that the state-litigation requirement imposes an unjustifiable burden on takings plaintiffs, conflicts with the rest of our takings jurisprudence, and must be overruled. A property owner has an actionable Fifth Amendment takings claim when the government takes his property without paying for it. That does not mean that the government must provide compensation in advance of a taking or risk having its action invalidated: So long as the property owner has some way to obtain compensation after the fact, governments need not fear that courts will enjoin their activities. But it does mean that the property owner has suffered a violation of his Fifth Amendment rights when the government takes his property without just compensation, and therefore may bring his claim in federal court under §1983 at that time.

Vacated and remanded

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

Concurring: THOMAS, J., filed a concurring opinion

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United States Supreme Court

Case Name: Hamid Mohamed Ahmed Ali Rehaif v. United States

Case No.: 17-9560

Focus: Statutory Interpretation

A federal statute, 18 U. S. C. §922(g), provides that “[i]t shall be unlawful” for certain individuals to possess firearms. The provision lists nine categories of individuals subject to the prohibition, including felons and aliens who are “illegally or unlawfully in the United States.” Ibid. A separate provision, §924(a)(2), adds that anyone who “knowingly violates” the first provision shall be fined or imprisoned for up to 10 years. (Emphasis added.)

The question here concerns the scope of the word “knowingly.” Does it mean that the Government must prove that a defendant knew both that he engaged in the relevant conduct (that he possessed a firearm) and also that he fell within the relevant status (that he was a felon, an alien unlawfully in this country, or the like)? We hold that the word “knowingly” applies both to the defendant’s conduct and to the defendant’s status. To convict a defendant, the Government therefore must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it.

Reversed and remanded

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

Concurring:

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United States Supreme Court

Case Name: North Carolina Department of Revenue v. The Kimberley Rice Kaestner 1992 Family Trust

Case No.: 18-457

Focus: Due Process Violation

This case is about the limits of a State’s power to tax a trust. North Carolina imposes a tax on any trust income that “is for the benefit of ” a North Carolina resident. N. C. Gen. Stat. Ann. §105–160.2 (2017). The North Carolina courts interpret this law to mean that a trust owes income tax to North Carolina whenever the trust’s beneficiaries live in the State, even if—as is the case here—those beneficiaries received no income from the trust in the relevant tax year, had no right to demand income from the trust in that year, and could not count on ever receiving income from the trust. The North Carolina courts held the tax to be unconstitutional when assessed in such a case because the State lacks the minimum connection with the object of its tax that the Constitution requires. We agree and affirm. As applied in these circumstances, the State’s tax violates the Due Process Clause of the Fourteenth Amendment.

Affirmed

Dissenting:

Concurring: ALITO, J., filed a concurring opinion, in which ROBERTS, C. J., and GORSUCH, J., joined.

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United States Supreme Court

Case Name: Curtis Giovanni Flowers v. Mississippi

Case No.: 17-9572

Focus: Prosecutorial Misconduct – Jury Instructions

In Batson v. Kentucky, 476 U. S. 79 (1986), this Court ruled that a State may not discriminate on the basis of race when exercising peremptory challenges against prospective jurors in a criminal trial. In 1996, Curtis Flowers allegedly murdered four people in Winona, Mississippi. Flowers is black. He has been tried six separate times before a jury for murder. The same lead prosecutor represented the State in all six trials.

In the initial three trials, Flowers was convicted, but the Mississippi Supreme Court reversed each conviction. In the first trial, Flowers was convicted, but the Mississippi Supreme Court reversed the conviction due to “numerous instances of prosecutorial misconduct.” Flowers v. State, 773 So. 2d 309, 327 (2000). In the second trial, the trial court found that the prosecutor discriminated on the basis of race in the peremptory challenge of a black juror. The trial court seated the black juror. Flowers was then convicted, but the Mississippi Supreme Court again reversed the conviction because of prosecutorial misconduct at trial.

Four critical facts, taken together, require reversal. First, in the six trials combined, the State employed its peremptory challenges to strike 41 of the 42 black prospective jurors that it could have struck—a statistic that the State acknowledged at oral argument in this Court. Tr. of Oral Arg. 32. Second, in the most recent trial, the sixth trial, the State exercised peremptory strikes against five of the six black prospective jurors. Third, at the sixth trial, in an apparent effort to find pretextual reasons to strike black prospective jurors, the State engaged in dramatically disparate questioning of black and white prospective jurors. Fourth, the State then struck at least one black prospective juror, Carolyn Wright, who was similarly situated to white prospective jurors who were not struck by the State.

We need not and do not decide that any one of those four facts alone would require reversal. All that we need to decide, and all that we do decide, is that all of the relevant facts and circumstances taken together establish that the trial court committed clear error in concluding that the State’s peremptory strike of black prospective juror Carolyn Wright was not “motivated in substantial part by discriminatory intent.” Foster v. Chatman, 578 U. S. ___, ___ (2016) (slip op., at 23) (internal quotation marks omitted). In reaching that conclusion, we break no new legal ground. We simply enforce and reinforce Batson by applying it to the extraordinary facts of this case. We reverse the judgment of the Supreme Court of Mississippi, and we remand the case for further proceedings not inconsistent with this opinion.

Reversed and remanded

Dissenting: THOMAS, J., filed a dissenting opinion, in which GORSUCH, J., joined as to Parts I, II, and III.

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

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