Weekly Case Digests – August 5, 2019 – August 9, 2019

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: DeAndre J. Beason v. Matthew Marske

Case No.: 18-3575

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

Focus: Sentencing Guidelines

The Armed Career Criminal Act, housed in § 924(e) of the Federal Criminal Code, mandates a minimum 15‐year sentence for a felon who unlawfully possesses a firearm and has three prior convictions for a “serious drug offense” or “violent felony.” In 2009, Deandre Beason pleaded guilty to being a felon in possession of a firearm and was sentenced under the Act. Now, roughly a decade later, the parties agree that under current law none of Beason’s three prior convictions count as either violent felonies or serious drug offenses—meaning Beason no longer qualifies as an armed career criminal.

But this observation only gets us so far, as this case turns instead on whether Beason has available a procedural means to secure resentencing. He did not prevail on challenging his conviction and sentence on direct appeal. Nor did he succeed in his pursuit of post‐conviction relief under 28 U.S.C. § 2255. So he now turns to 28 U.S.C. § 2241. Whether he can use § 2241 to pursue what is often called traditional habeas relief turns under our caselaw on whether the claims he now raises in his current petition were foreclosed to him at the time of his initial § 2255 motion. If so, the law would deem Beason’s prior § 2255 proceeding inadequate and thereby allow him to seek resentencing through and pursuant to § 2241.

We conclude that at least one of Beason’s grounds for relief—pertaining to two of his three prior convictions—was foreclosed to him at the time of his § 2255 motion. And, because Beason is correct that those two offenses cannot serve as qualifying offenses, he no longer has the three offenses qualifying him as an armed career criminal. While the remainder of the opinion travels the procedural and legal maze to this conclusion, the upshot is that we reverse and remand for the petition to be granted and Beason to be resentenced.

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: United States of America v. Ishaihu Harmelech

Case No.: 18-2169

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

Focus: Sentencing Guidelines

A federal grand jury indicted Ishaihu Harmelech on two counts of mail fraud under 18 U.S.C. § 1341. Harmelech pleaded guilty to the first count, and the government dismissed the remaining count. In pleading guilty, Harmelech, who owned and operated multiple cable installation companies, admitted to setting up hundreds of DIRECTV accounts under a fraudulent scheme and pocketing the money that should have been paid for servicing those accounts. He now appeals his sentence, arguing the district court erred in calculating DIRECTV’s losses and in applying a four-level sentencing enhancement pursuant to Sentencing Guideline § 3B1.1(a). Because we see no error in the district court’s loss calculation and sentencing determination, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: SelectSun GmbH v. Porter, Inc., d/b/a Thunderbird Products

Case No.: 18-3149

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

Focus: Contract – Warranty

Contractual disputes can be messy and present many tangled knots. A year ago in a similar contractual dispute under Indiana law we observed that sometimes the harder questions can be avoided where the evidentiary record shows that the plaintiff “failed to prove its damages with anything close to reasonable certainty.” Entertainment USA, Inc. v. Moorehead Communications, Inc., 897 F.3d 786, 797 (7th Cir. 2018). This same observation and evidentiary shortcoming resolves this appeal and leads us to affirm the district court’s judgment against SelectSun GmbH in this contract and warranty dispute over whether the exhaust system on a $1 million yacht manufactured by Porter, Inc. complied with particular regulatory requirements imposed by the European Union.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Donald Fessenden v. Reliance Standard Life Ins. Co., et al.

Case No.: 18-1346

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

Focus: ERISA – Administrator Deadline

Donald Fessenden applied for long‐term disability benefits through his former employer’s benefits plan. After the plan administrator, Reliance Standard Life Insurance Company, denied the claim, Fessenden submitted a request for review with additional evidence supporting it. When Reliance failed to issue a decision within the timeline mandated by the regulations governing the Employee Retirement Income Security Act of 1974 (ERISA), he sought review of Reliance’s decision in federal court. Eight days later, after Fessenden had already filed suit, Reliance finally issued a decision, again denying Fessenden’s claim.

We must decide whether Reliance’s tardiness affects the standard of review in the district court. If the decision had been timely, the court would have applied an arbitrary and capricious standard because the plan gave Reliance the discretion to administer it. When a plan administrator commits a procedural violation, however, it loses the benefit of deference and a de novo standard applies. We have recognized an exception, though, and Reliance seeks to take advantage of it: if the administrator “substantially complies” with the prescribed procedures—in other words, if the violation is relatively minor—then the court will still defer to the administrator’s decision. Reliance argues that it “substantially complied” with the deadline because it was only a little bit late.

We reject Reliance’s argument because we hold that the “substantial compliance” exception does not apply to blown deadlines. An administrator may be able to “substantially comply” with other procedural requirements, but a deadline is a bright line. Because Reliance violated a hard‐and‐fast obligation, its late decision to deny Fessenden benefits is not entitled to deference.

Vacated and remanded

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7^th Circuit Court of Appeals

Case Name: Joseph S. McGreal v. Village of Orland Park, et al.

Case No.: 18-3342

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

Focus: Abuse of Discretion – Attorney Fees

The Village of Orland Park fired police officer Joseph McGreal in 2010. McGreal sued, alleging that the Village fired him in retaliation for remarks he made at a community board meeting. The district court granted summary judgment for the defendants, finding that McGreal had advanced only speculation to support his claims. We affirmed and also remarked on the dearth of evidence to support McGreal’s allegations.

After we affirmed summary judgment, the district court granted the defendants’ motion for attorney fees and directed John P. DeRose—McGreal’s attorney—to pay $66,191.75 to the defendants. DeRose now appeals that order. Because the district court did not abuse its discretion, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Kimberly Bilinsky v. American Airlines, Inc.

Case No.: 18-3107

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

Focus: ADA Violation

American Airlines employed Kimberly Bilinsky for more than two decades. That employment continued without issue after Bilinsky contracted multiple sclerosis (“MS”) in the late 1990s. American provided a “Work from Home Arrangement” (“WFHA”), which permitted Bilinsky to do her job from her home in Chicago, even though her colleagues operated out of the company headquarters in Dallas. But after a 2013 merger, American restructured its operations and informally repurposed Bilinsky’s department. The executives determined that the new duties required the in‐person involvement of the employees, so the company rescinded the arrangement and demanded that Bilinsky relocate to Texas to work face‐to‐face. Once negotiations collapsed, American terminated Bilinsky.

This lawsuit under the Americans with Disabilities Act (“ADA”) followed. 42 U.S.C. § 12111 et seq. The district court granted summary judgment to American, finding that Bilinsky was no longer qualified for the position in light of the changes in her responsibilities. Because Bilinsky’s evidence does not counter that assertion, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: J.K.J., et al. v. Polk County, et al.

Case No.: 18-1498; 18-1499; 18-2170; 18-2177

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

Focus: Sufficiency of Evidence

Darryl Christensen, a Polk County, Wisconsin Jail corrections officer, sexually assaulted plaintiffs J.K.J. and M.J.J. over three years during their incarcerations. Plaintiffs sued Christensen and the county under 42 U.S.C. § 1983, alleging Eighth and Fourteenth Amendment claims, in addition to a state law negligence claim against the county. After trial, the jury found Christensen and the county liable for J.K.J. and M.J.J.’s injuries and awarded each $2 million in compensatory damages. The jury also levied punitive damages against Christensen, awarding $3,750,000 to each plaintiff. Both defendants moved for new trials, and the county also moved for judgment as a matter of law. The district court denied those requests and defendants now appeal the judgments entered against them. The sum of these allegations, plaintiffs argued, prove the county was deliberately indifferent to a known risk of sexual assault by jail staff. The county disagreed, arguing that the trial evidence did not support the jury’s liability finding and damages awards.

We see no reason to disturb the jury’s verdict against Christensen and so affirm the denial of his request for a new trial. His assaults were predatory and knowingly criminal. But to impose liability against the county for Christensen’s crimes, there must be evidence of an offending county policy, culpability, and causation. These are demanding standards. Christensen’s acts were reprehensible, but the evidence shows no connection between the assaults and any county policy. We therefore reverse and remand for entry of judgment in favor of the county.

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: LeRoy Palmer v. Craig P. Franz, RN,

Case No.: 18-1384

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

Focus: Damage Award

LeRoy Palmer(“Palmer”)is an inmate in the custody of the Illinois Department of Corrections (“IDOC”). In lieu of a left‐hand, Palmer has a nub which terminates at the wrist and does not have any functional fingers. Prior to his residency at the Northern Reception and Classification Center(the “NRC”),Palmer was a resident of the Shawnee Correctional Center(“Shawnee”).While at Shawnee, the medical director issued Palmer a low bunk pass for an indefinite duration.

In preparation for a court appearance in Cook County, Palmer was transferred to the NRC on January 11, 2012. When he arrived defendant Craig P. Franz (“Franz”), an employee of Wexford Health Services, Inc. (“Wexford”), conducted a routine intake screening. A transferred inmate is accompanied by a transfer summary completed by the originating institution. The top half of Palmer’s intake form had been completed by a nurse at Shawnee and noted Palmer’s missing hand. Franz noted the deformity but ignored Palmer’s explicit request for a low bunk permit. Franz took no other steps in conjunction with Palmer’s deformity or his request for an accommodation: he did not issue a permit, notify any other member of the medical staff, or put Palmer in queue to see a doctor.

When Palmer was escorted to his assigned cell the bottom bunk was occupied. Palmer informed the guard that he had a low bunk pass at Shawnee but was told that without a pass for the NRC, the guard could not do anything. Palmer was forced to use the top bunk.

Over the next eleven days Palmer made two requests to see a doctor to get a low bunk pass; neither request was acknowledged. On the morning of January 22, 2012, Palmer fell while attempting to climb down from the upper bunk. He landed on his knee and suffered a severe injury. Following his fall from the top bunk, Palmer was issued a low bunk permit and assigned to a low bunk. From February 2, 2012, through July 11, 2012, Palmer was transferred throughout the Illinois correctional system. He was transferred from the NRC to the Cook County Jail, back to the NRC, and back to Shawnee before he was again transferred to the NRC. In April and August of 2012, Palmer filed grievances with IDOC because he was unable to secure a low bunk permit and as a result he was injured. On September 12, 2012, after not receiving a response to his grievances, Palmer appealed the apparent denials to the Administrative Review Board, which also went unanswered.

On March 5, 2013, Palmer filed a complaint in the United States District Court for the Northern District of Illinois. On March 11, 2013, the district court granted Palmer’s motions to proceed in forma pauperis and for the appointment of counsel pursuant to the local rule. Finally, the operative complaint (Fourth Amended Complaint) was filed. This Complaint alleged, inter alia, that Franz was deliberately indifferent to Palmer’s serious medical need when he refused to issue a low bunk permit and that this constituted a violation of the Eighth Amendment. On September 18, 2017, the district court granted  Franz’s motion for summary judgment. The court determined that Franz was not deliberately indifferent to Palmer’s serious medical need because he was not authorized to issue a low bunk permit and he was unaware of any issue regarding Palmer’s bunk assignment. And, Palmer’s negligence claim raised issues of medical judgment, and necessarily implicated the Healing Arts and Medical Practices Act that Palmer had not complied with. The district court entered judgment in favor of Franz on Palmer’s Eighth Amendment claim and dismissed Palmer’s negligence claim without prejudice.

Here, the evidence is enough to allow a reasonable jury to conclude that: Palmer suffered from an objectively serious medical condition; Franz knew of the heightened risk of harm; and Franz deliberately failed to act in the face of that harm. The district court applied these measures to the jury’s verdict and concluded the punitive awards were reasonable and comported with due process requirements. We agree and see no reason to disturb either of the jury awards assessed against Christensen. Because a reasonable jury could have concluded that Franz’s refusal to act was a conscious decision to ignore the risk of harm posed to Palmer, we reverse the decision of the district court and remand for further proceedings consistent with this opinion.

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: Division Six Sports, Inc., v. The Finish Line, Inc.,

Case No.: 19-1070

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

Focus: Breach of Contract

This case involves an alleged breach of contract between Plaintiff Division Six Sports, Inc. (“Division Six”) and Defendant The Finish Line, Inc. (“Finish Line”). The district court dismissed the case for failure to state a claim, holding the contract was not in force at the time of the alleged breach. Division Six argues on appeal that the district court misinterpreted the contract’s automatic renewal provision. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Essex Insurance Company v. Blue Moon Lofts Condominium Association, et al.

Case No.: 18-3443; 18-3530

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

Focus: Insurance Claim – Coverage

An Illinois state court entered a $1,356,435 judgment against The Structural Shop in 2009, and now TSS wants its insurer, Essex Insurance Company, to pay for it. The terms of TSS’s insurance policy do not cover this claim, however. The policy covers only claims first made against TSS between May 2012 and May 2013, and the lawsuit giving rise to the Illinois court’s judgment was filed against TSS in 2002. Recognizing this reality, TSS has resorted to the common law doctrine of estoppel. Illinois law estops Essex from denying coverage only if the insurer misled TSS into believing it would cover the judgment, TSS reasonably relied on Essex’s misleading statement or act, and TSS suffered prejudice. The district court determined that TSS suffered no prejudice and declined to apply estoppel. The district court also rejected TSS’s alternative theories of recovery. Seeing no error in the district court’s rulings, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Devan Dennis, et al. v. Illinois Department of Human Services, et al.

Case No.: 18-2899; 18-2952

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

Focus: Bankruptcy – Domestic Support Obligations

Devan Dennis and Tyeane Halbert (collectively, Debtors) each owed debts to the Illinois Department of Human Services (DHS). Dennis owed for overpayments made to her under the Illinois Child Care Assistance Program; Halbert owed for overpayments made to her under the Supplemental Nutrition Assistance Program. The Debtors each filed for bankruptcy. DHS now appeals from orders entered by the bankruptcy court in each case holding that the overpayment debts were not domestic support obligations. We affirm the orders of the bankruptcy court.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Paris Yancey

Case No.: 18-2935

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

Focus: Unlawful-stop Claim

This case concerns a traffic stop in Rock Island, Illinois. While two police officers were arresting the driver of a vehicle on an outstanding warrant, they recognized defendant Paris Yancey riding shotgun. Based on their past interactions with Yancey, as well as their familiarity with a contact sheet labeling him as potentially armed, the officers decided to pat him down for weapons. Before they could do so, Yancey made a run for it. The officers tackled him and saw a handgun sticking out of his waistband. Yancey was subsequently convicted of felony possession of a firearm.

Yancey appeals the admission of the handgun evidence on Fourth Amendment grounds, claiming police lacked justification to keep him from leaving the scene. But under Supreme Court precedent, police officers can detain passengers in a car while a stop is ongoing if they have a lawful reason to seize the driver. It is undisputed that the officers lawfully stopped the car in which Yancey rode as a passenger. Because that stop was still lawfully ongoing when Yancey tried to flee, it was not unreasonable for the officers to detain him, so we affirm his conviction.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Jacob D. Lickers

Case No.: 18-2212

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

Focus: Sentencing – Supervised Release

Jacob Lickers received a sentence of 132 months’ imprisonment and a lifetime of supervised release for possessing child pornography. Cases like these often arise from undercover law enforcement activity on the Internet. Not this case. Two narcotics officers visited a park in Monmouth, Illinois, as part of undercover drug work. They unexpectedly observed Lickers sitting alone in a parked car under a tree while looking at his phone and watching a family with young children on a nearby playground, later discovering that he was engaging in indecent sexual conduct. On appeal Lickers contends that the police’s encounter with him in the park and the subsequent search of his phone and laptop computer violated the Fourth Amendment. He also challenges the life term of supervised release imposed by the district court. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Nicole D. Nelson v. Great Lakes Educational Loan Services, Inc., et al.

Case No.: 18-1531

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

Focus: Consumer Fraud – Negligent Misrepresentation

Like many students, plaintiff Nicole Nelson borrowed money to pay for her education. Defendant Great Lakes Educational Loan Services, Inc. services repayment of her federally insured loans. On its website, Great Lakes offered to provide guidance to borrowers struggling to make their loan payments. It told borrowers: “Our trained experts work on your behalf,” and “You don’t have to pay for student loan services or advice,” because “Our expert representatives have access to your latest student loan information and understand all of your options.” Nelson alleges that despite these representations, when she and other members of the putative class struggled to make payments, Great Lakes did not work on their behalf. Instead, Nelson contends, Great Lakes steered borrowers into repayment plans that were to Great Lakes’ advantage and to borrowers’ detriment.

Nelson alleges that defendant’s conduct violated the Illinois Consumer Fraud and Deceptive Business Practices Act and constituted constructive fraud and negligent misrepresentation under Illinois common law. The district court granted Great Lakes’ motion to dismiss, holding that all of Nelson’s claims were expressly preempted by this provision of the federal Higher Education Act: “Loans made, insured, or guaranteed pursuant to a program authorized by title IV of the Higher Education Act of 1965 (20 U.S.C. 1070 et seq.) shall not be subject to any disclosure requirements of any State Law.” 20 U.S.C. § 1098g. The district court reasoned that Nelson’s claims are expressly preempted because they all allege in substance only that Great Lakes failed to disclose certain information.

The district court’s ruling was overly broad. When a loan servicer holds itself out to a borrower as having experts who work for her, tells her that she does not need to look elsewhere for advice, and tells her that its experts know what options are in her best interest, those statements, when untrue, cannot be treated by courts as mere failures to disclose information. Those are affirmative misrepresentations, not failures to dis‐ close. Great Lakes chose to make them. A borrower who reasonably relied on them to her detriment is not barred by § 1098g from bringing state‐law consumer protection and tort claims against the loan servicer. Tort law has long recognized the difference between mere failures to disclose information and affirmative deceptions. And as we explain below, the Ninth Circuit decision the district court relied upon, Chae v. SLM Corp., 593 F.3d 936 (9th Cir. 2010), does not apply to claims of affirmative misrepresentations in counseling borrowers in distress.

Accordingly, Nelson’s claims are not expressly preempted to the extent she is alleging that Great Lakes made false or misleading affirmative representations to her in the counseling process. Also, neither conflict preemption nor field preemption applies to her claims. We vacate the judgment of the district court and remand for further proceedings consistent with this opinion.

Vacated and remanded

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7^th Circuit Court of Appeals

Case Name: Gloria D. Fields v. The Board of Education of the City of Chicago & Chad P. Weiden

Case No.: 17-3136

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

Focus: ADEA Violation

Gloria Fields, a 63‐year‐old African‐American woman, retired in 2016 from her job as a teacher with Chicago Public Schools. She sued the Board of Education and the principal of the school where she worked, alleging that they discriminated against her because of her race and age and retaliated against her for filing this lawsuit, in violation of 42 U.S.C. § 1981 and the Age Discrimination in Employment Act, 29 U.S.C. §§ 621–34. The district court entered summary judgment for the defendants on all Fields’s claims, concluding that Fields did not suffer an adverse employment action. We agree.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: Wells Fargo Bank, N.A., et al. v. Thomas J. Juza, et al.

Case No.: 2017AP1515

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

Focus: Sufficiency of Evidence

This appeal arises from an action brought by Bank of America, N.A. (BANA) to foreclose upon a mortgage secured by real estate owned by Thomas and Michelle Juza. In 2010, the circuit court granted summary judgment of foreclosure to BANA. The sole evidentiary support the court relied upon in doing so was an affidavit BANA filed from Robert Rybarczyk.

In 2016, after multiple failed attempts to sell the foreclosed property, the Juzas brought a motion to vacate the judgment of foreclosure and dismiss the underlying foreclosure action. As grounds, they alleged that BANA had committed a fraud on the circuit court by submitting the Rybarczyk affidavit, as BANA knew that Rybarczyk lacked personal knowledge of the facts he averred to in his affidavit. Following an evidentiary hearing, the court concluded that BANA had, in fact, committed a fraud on the court. Accordingly, it granted the Juzas’ motion to vacate the foreclosure judgment and dismissed the foreclosure action with prejudice.

Wells Fargo Bank, N.A.—BANA’s successor in interest—now appeals, raising two primary arguments. First, it contends there was insufficient evidence to support the circuit court’s conclusion that BANA committed fraud on the court. Second, it asserts that even if the court properly concluded BANA committed fraud on the court, the court erroneously exercised its discretion by dismissing the underlying foreclosure action with prejudice. We reject both of those arguments, as well as various other challenges Wells Fargo brings to the court’s decision, and therefore affirm the judgment. Nonetheless, we reject the Juzas’ assertion that Wells Fargo’s appeal is frivolous, and we therefore deny their motion for an award of attorney fees and costs under WIS. STAT. RULE 809.25(3) (2017-18).

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Antonio Herrea-Ortiz

Case No.: 2017AP2277-CR

Officials: Brennan, Brash and Dugan, JJ.

Focus: Jury Instructions

Antonio Herrera-Ortiz, pro se, appeals a judgment convicting him of one count of repeated sexual assault of the same child. He also appeals an order denying his postconviction motion. Herrera-Ortiz argues: (1) the circuit court committed plain error when it allowed the State to orally amend the information during trial; (2) the circuit court’s jury instructions constituted plain error; (3) he is entitled to an evidentiary hearing on his claim of ineffective assistance of trial counsel; and (4) there is a clerical error in the judgment of conviction. We affirm the judgment and order, but remand to the clerk of circuit court to correct the clerical error in the judgment of conviction.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Jesus Gonzalez

Case No.: 2018AP257

Officials: Kessler, Kloppenburg and Dugan, JJ.

Focus: Ineffective Assistance of Counsel

This is Jesus Gonzalez’s second appeal from his convictions for first-degree reckless homicide and second-degree recklessly endangering safety. Both convictions were entered following a jury trial. In this appeal, Gonzalez argues that the circuit court erroneously denied without a hearing his postconviction motion alleging ineffective assistance of both his trial counsel and his postconviction counsel.

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WI Court of Appeals – District I

Case Name: Dennis Dietscher v. Pension Board of the Employees’ Retirement System of the County of Milwaukee

Case No.: 2018AP518

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

Focus: Pension Revocation

The Pension Board of the Employees’ Retirement System of the County of Milwaukee (Board) appeals the trial court’s order reversing the Board’s decision to uphold the Board’s prior revocation of former County employee Dennis Dietscher’s pension benefits. It revoked his pension on the ground that his employment was terminated for “fault or delinquency.” The trial court found that the Board’s application of the “fault or delinquency” provision was arbitrary, oppressive, and unreasonable and contrary to law and reversed the decision and remanded the matter to the Board.

On appeal, we review the Board’s decision, not that of the trial court. The issues on appeal focus on the Board’s interpretation and application of two sections of Milwaukee County’s pension ordinance. The first ordinance, § 4.1(2)(a) provides for a special type of normal pension, known as the Rule of 75. That Rule provides that a County employee is immediately eligible to receive a normal pension if the sum of the employee’s age and years of credited County service equals or exceeds seventy-five. The second ordinance, § 4.5(1) provides, in part, that a County employee “shall be eligible for a deferred vested pension [DVP] if his employment is terminated for any cause, other than fault or delinquency on his part[.]” On appeal, the Board argues that this court should affirm its revocation of Dietscher’s pension because it reasonably interpreted and applied the ordinances to determine that Dietscher was ineligible to receive a County pension. We disagree.

On certiorari and on appeal, the Board’s arguments are ever changing. Before the trial court, the Board argued that it rationally concluded that Dietscher was in a DVP status when he retired and that he was terminated for fault or delinquency. The Board’s sole argument, that Dietscher was in a DVP status, was its “gap” theory described below. By contrast, the Board now makes three arguments before this court—two of which were not made before the trial court. The Board argues as follows: (1) pursuant to § 4.5(1), Dietscher was eligible for a DVP because he was “discharged for cause,” but because he was terminated for fault or delinquency he forfeited his eligibility for a DVP; (2) Dietscher was eligible for a DVP because there was a “gap” in his County service between the date when his employment ended and the date when he completed his retirement paperwork; and (3) ERS Rule 807 provides an independent source of jurisdiction for the Board to revoke Dietscher’s pension.

We affirm the trial court’s order reversing the Board’s decision that upheld the Board’s earlier revocation of Dietscher’s pension. Further, Dietscher asserts that this appeal is frivolous and has filed a motion for fees and costs pursuant to WIS. STAT. RULE 809.25(3) (2017-18).

Recommended for Publication

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WI Court of Appeals – District I

Case Name: Jose M. Correa, et al. v. Woodman’s Food Market, et al.

Case No.: 2018AP1165

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

Focus: Sufficiency of evidence

Woodman’s Food Market appeals an order denying its motions after verdict and entering judgment based on a jury’s verdict finding that it was liable for injuries sustained by Jose Correa when he slipped and fell inside of one of its stores.

Woodman’s argues that the evidence of constructive notice of a hazard was entirely speculative and, therefore, the trial court erred by denying its motion for a directed verdict, denying its motions after verdict, and denying its motion for summary judgment. We conclude that the trial court erred in denying Woodman’s motion for a directed verdict. Therefore, we reverse and remand this matter with directions.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Terry Lynn Pundsack

Case No.: 2018AP1404-CR

Officials: Kessler, Kloppenburg and Dugan, JJ.

Focus: Jury Instructions

Terry Lynn Pundsack appeals the judgment of conviction, entered on a jury verdict, finding him guilty of substantial battery, with intent to cause bodily harm.

On appeal, Pundsack argues that the trial court erred when it declined to instruct the jury on self-defense. He also argues that a standard jury instruction regarding the issue does not accurately reflect the related state statute, WIS. STAT. § 939.48(2)(a) (2017-18). We conclude that Pundsack forfeited his claim that the jury instruction does not accurately reflect § 939.48(2)(a). We further conclude that the trial court properly declined Pundsack’s request for the self-defense jury instruction. We, therefore, affirm.

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WI Court of Appeals – District I

Case Name: Todd Brunclik, et al. v. Keystone Insights

Case No.: 2018AP1432

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

Focus: Summary Judgment – Issue of Material Fact

Keystone Insights appeals an order of the circuit court granting summary judgment in favor of Benjamin DeBruin. Keystone argues that a genuine issue of material fact precludes summary judgment and that the circuit court erred in granting a default judgment in favor of DeBruin. We affirm in part, reverse in part, and remand with directions.

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WI Court of Appeals – District III

Case Name: Stacy Renee Wiemeri v. Brian Scott Wiemeri

Case No.: 2018AP1657

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

Focus: Divorce – Maintenance

Brian Wiemeri appeals a divorce judgment that terminated his marriage to Stacy Wiemeri. He argues the circuit court erred by: (1) denying rather than reserving him maintenance; and (2) reserving jurisdiction over the parties’ property division. We conclude the court did not erroneously exercise its discretion by denying Brian maintenance, and we reject Brian’s argument that the court reserved jurisdiction over the property division. We therefore affirm with respect to these issues.

Brian also argues that the circuit court erred when dividing the parties’ property by awarding him a $100,000 retirement account that did not, in fact, exist. Stacy concedes that what the court characterized as a retirement account was actually deferred compensation from 2016 that Brian received in 2017. She argues, however, that the court could treat the deferred compensation as an asset for purposes of the property division and that it properly awarded that asset to Brian. We disagree. The court’s oral ruling clearly shows that it mistakenly believed the deferred compensation was a retirement account. Moreover, even if the court understood that the deferred compensation was not a retirement account, the evidence in the record was insufficient to establish the value of the deferred compensation and what happened to those funds after Brian received them. We therefore reverse in part and remand for the circuit court to determine the value of the deferred compensation and, if possible, what happened to that money. The court must then reconsider the property division in light of that information.

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WI Court of Appeals – District I

Case Name: Marcus Crumble v. Alicia Johnson, et al.

Case No.: 2018AP1892

Officials: Kessler, Brennan and Kloppenburg, JJ.

Focus: Estate – Enrichment

Marcus Crumble appeals an order of the circuit court denying him any portion of his son’s estate. The circuit court determined that the estate funds of Brandon T. Johnson should be distributed to Brandon’s mother, Alicia Johnson, to prevent unjust enrichment. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Dominique M. Anwar

Case No.: 2018AP2222-CR

Officials: BRENNAN, J.

Focus: Due Process Violation

Dominique M. Anwar appeals from a judgment of conviction for child neglect. The charge was based on the fact that Anwar left her two-year-old son alone in her apartment in the middle of the night on August 9, 2017, and went to a relative’s home. The child was discovered by firefighters who were responding to a fire in the building. Anwar pleaded guilty to the charge and was sentenced. After sentencing, Anwar moved for a new sentencing hearing. She argued that the State violated her due process rights at sentencing by failing to disclose to her in advance that it would be introducing statements made by her six year-old son that were part of the basis for the separate CHIPS proceedings that resulted from the August incident leading to the child neglect charge. The postconviction court denied her motion on the grounds that even if Anwar did not receive a copy of the statements in the CHIPS petition as mandated by statute, the State placed the information on the record, and Anwar and defense counsel “had the opportunity to refute, explain or supplement that information, but did not do so.” Anwar also appeals the order denying her postconviction motion. We affirm the judgment and order.

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WI Court of Appeals – District II

Case Name: Gregory A. Anderson v. Wisconsin Department of Financial Institutions

Case No.: 2017AP1670

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

Focus: Due Process Violation

The constitution limits the power of the state to take someone’s property. At a minimum, constitutional due process requires the state to provide notice and an opportunity to be heard. This case concerns whether sufficient notice was provided when the Wisconsin Department of Financial Institutions (DFI) notified Gregory A. Anderson that he was liable for more than three million dollars due to his alleged involvement in unlawful securities transactions.

In its notice, DFI informed Anderson that he had thirty days to “request a hearing” or its allegations would be deemed proven and the threatened punishment would become fixed. Anderson—on day number thirty—mailed a certified letter requesting a hearing. DFI denied Anderson’s request for a hearing on the grounds that DFI needed to receive the request by the thirtieth day. No grace, no exceptions.

The notice Anderson received tracks the language of WIS. STAT. § 551.604(2) (2017-18). However, this recently modified statute (and hence, the notice) is less than clear on precisely what Anderson was supposed to do by the thirtieth day. While DFI offers a plausible reading in defense of its position, we conclude that the notice Anderson received was inadequate. If the state is going to take Anderson’s property, it must tell him with reasonable clarity what he needs to do and by when. The notice failed in this basic task and therefore violated Anderson’s due process protections. Accordingly, we reverse and remand.

Recommended for Publication

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WI Court of Appeals – District II

Case Name: David J. Drury v. Poblocki Holdings, LLC, et al

Case No.: 2018AP532

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

Focus: Purchase and Escrow Agreement – Indemnification Claims

Poblocki Holdings, LLC, et al. (Poblocki) appeal from an order granting summary judgment to David J. Drury, et al. (Drury). Poblocki challenges both the grant of summary judgment and the circuit court’s earlier dismissal of its counterclaims. The issues in this case largely turn on the interpretation of the parties’ Purchase Agreement and Escrow Agreement. This too is a matter that we review de novo. See American Family Mut. Ins. Co. v. Cintas Corp. No. 2, 2018 WI 81, ¶10, 383 Wis. 2d 63, 914 N.W.2d 76 (the interpretation of a contract presents a question of law). The final issue that we consider is the circuit court’s grant of summary judgment. As noted, the court concluded that Poblocki’s notice of claim to the escrow agent was untimely and that Drury was entitled to the funds. Poblocki concedes that its notice was untimely under the Escrow Agreement, however, it maintains that the funds should nevertheless remain in escrow pending a final resolution of its indemnification claims against Drury.

We are not convinced that the Purchase Agreement requires the escrow agent to retain funds for a period longer than the Escrow Agreement allows. If successful with its indemnification claims, Poblocki can still recover fully against the promissory note between the parties. It just cannot recover against the escrow funds which must be disbursed. That is what the parties bargained for, and we will not rewrite their agreements for them. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. John M. Childress

Case No.: 2018AP613-CR

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

Focus: Ineffective Assistance of Counsel

John Childress appeals from a judgment convicting him of repeated sexual assault of a child and from the order denying his motion for postconviction relief. Childress argues here that the trial court erroneously denied his motion for a mistrial and that his trial attorney was ineffective at sentencing. His arguments do not persuade us. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Eric M. Trinrud

Case No.: 2018AP1004-CR

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

Focus: Probable Cause – Suppression of Evidence

Eric M. Trinrud appeals from a judgment convicting him of operating a motor vehicle with a prohibited alcohol concentration (fourth offense) on his no contest plea. On appeal, Trinrud challenges the circuit court’s denial of his motion to suppress. Trinrud argues that the officer lacked reasonable suspicion for the traffic stop, he was arrested without probable cause when the officer relocated him for field sobriety testing, and he did not receive Miranda rights, which invalidated his incriminating statements to the officer and required suppression of evidence. Trinrud also argues that his vehicle was illegally searched and impounded. We conclude that the circuit court properly denied Trinrud’s motion, and we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Marwan Mahajni

Case No.: 2017AP1184-CR

Officials: Sherman, Blanchard, and Fitzpatrick, JJ.

Focus: Evidentiary Hearing

Marwan Mahajni appeals a judgment convicting him of kidnapping and second degree sexual assault following a jury trial, as well as a subsequent order denying a post-conviction motion for a new trial without holding an evidentiary hearing. Mahajni makes the implied argument that he is entitled to an evidentiary hearing to give him an opportunity to prove that jurors received extraneous prejudicial information during deliberations, which would entitle him to a new trial. He bases this argument on affidavits from two jurors who aver that a bailiff told jurors during the period of jury deliberation that a deadlock on any count was not an option.

We conclude that the circuit court erred in failing to grant the evidentiary hearing that Mahajni requested in a motion for reconsideration, because the juror affidavits constitute an allegation that at least one juror received extraneous prejudicial information and Mahajni is entitled to a new trial if this allegation is proven by clear and convincing evidence. Accordingly, we reverse the court’s denial of Mahajni’s motion for reconsideration and remand for an evidentiary hearing.

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WI Court of Appeals – District IV

Case Name: Wilmington Savings Fund Society FSB

Case No.: 2018AP508

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

Focus: Court Error – RESPA Violation

This case arises from a foreclosure action filed by Wilmington Savings Fund Society FSB against Alisha and William Ayres. At issue on appeal are counterclaims asserted by the Ayreses against Wilmington, which are premised on Wilmington’s handling of the Ayreses’ application for a loan modification prior to the commencement of the foreclosure action. The Ayreses assert that Wilmington’s handling of their loan modification application breached Wilmington’s contractual duty of good faith and fair dealing. In addition, the Ayreses assert that Wilmington also violated the Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. § 2601-17 (2012), in handling the loan modification application. Both the duty of good faith and fair dealing claim and the RESPA claim were tried to a jury.

The questions presented on appeal are: (1) whether the circuit court erred by overturning the jury’s verdict awarding the Ayreses damages for Wilmington’s breach of the duty of good faith and fair dealing; (2) whether the court erred by declining to change the jury’s negative answer to a special verdict question asking whether Wilmington violated RESPA in its handling of the Ayreses’ loan modification appeal; and (3) whether the court erred by allowing Wilmington’s corporate representative to testify based on notes he had prepared for trial summarizing Wilmington’s business records without also producing those records.

As to the first issue, we conclude that the circuit court properly overturned the jury’s verdict on the duty of good faith and fair dealing claim. In doing so, we explain that the Ayreses have not shown that a contract existed between them and Wilmington under which Wilmington had a duty of good faith and fair dealing with respect to the Ayreses’ loan modification application. As to the second issue, we conclude that the court correctly declined to change the jury’s special verdict answer concerning the loan modification appeal because credible evidence supports the jury’s verdict. Finally, as to the third issue, we assume without deciding that the court erred by permitting Wilmington’s representative to testify based on his notes of Wilmington’s business records without producing those records, but we conclude that the error was harmless. Accordingly, we affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Sophea Mouth

Case No.: 2018AP1153-CR

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

Focus: Court Error – Abuse of Discretion

Sophea Mouth appeals a judgment convicting him of second degree intentional homicide and attempted second degree intentional homicide. Mouth was found guilty at a jury trial after he shot two men, one fatally, during a dispute over Mouth’s occupation of property affected by foreclosure proceedings. Mouth appeals the circuit court’s decisions not to instruct the jury as follows: (1) in order to evict occupiers from business premises that were subject to foreclosure a property owner needs to rely on a writ of assistance; and (2) Mouth did not have a duty to attempt to retreat before shooting the two men under the “castle doctrine,” codified at WIS. STAT. § 939.48(1m) (2017-18). Separately, Mouth argues that the circuit court erroneously exercised its discretion in denying Mouth’s request to allow him to demonstrate to the jury his impaired ability to walk. We reject each argument and affirm.

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WI Court of Appeals – District III

Case Name: Outgamie County Department

Case No.: 2019AP183

Officials: SEIDL, J.

Focus: Termination of Parental Rights

J.M.J. appeals a circuit court order terminating her parental rights to her child, Alexa. J.M.J. asserts that she is entitled to a new trial because, during the grounds phase of her termination of parental rights (TPR) proceedings, the Outagamie County Department of Health and Human Services (the Department) committed prosecutorial misconduct when it elicited testimony from a witness who mentioned a topic that the parties, in J.M.J.’s view, had agreed not to introduce in the presence of the jury. We conclude the Department did not commit prosecutorial misconduct. Therefore, we affirm.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Kristi Koschkee, et al. v. Carolyn Stanford Taylor, et al.

Case No.: 2019 WI 76

Focus: Constitutionality – Gubernatorial Approval

This is an original action brought by Kristi Koschkee et al., two licensed teachers and two school board members, against Superintendent of Public Instruction (SPI) Carolyn Stanford Taylor and the Department of Public Instruction (DPI). The petitioners argue that the SPI and DPI must comply with the statutory requirement that, prior to drafting or promulgating an administrative rule, they must receive written approval from the governor. The SPI and DPI argue that this requirement of gubernatorial approval is unconstitutional as applied to the SPI because, pursuant to Article X, Section 1 of the Wisconsin Constitution, no other officer may be placed in a position equal or superior to that of the SPI with regard to the “supervision of public instruction.”

We conclude that the gubernatorial approval requirement for rulemaking is constitutional as applied to the SPI and DPI, whether such approval authority is found in 2017 Wis. Act 57 or in previous provisions of ch. 227. Article X, Section 1 vests supervision of public instruction, an executive function, in the SPI. In contrast, when the SPI, through the DPI, promulgates rules, it is exercising legislative power that comes not from the constitution but from the legislature. Stated otherwise, the legislature delegates part of its constitutional power to legislate to the SPI, DPI, and many other agencies in the form of rulemaking power. That the SPI also has the executive constitutional function to supervise public instruction does not transform the SPI’s legislatively delegated rulemaking power into a constitutional supervisory function. Therefore, it is of no constitutional concern that the governor is given equal or greater legislative authority than the SPI in rulemaking.

Declaration of rights; relief granted

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

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

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WI Supreme Court

Case Name: Enbridge Energy Company, Inc., et al. v. Dane County, et al.

Case No.: 2019 WI 78

Focus: Insurance – Conditional Use Permit

Enbridge Energy Company operates an interstate pipeline transporting liquid petroleum. Dane County issued to Enbridge a conditional use permit (“CUP”) including two conditions requiring Enbridge to procure additional insurance prior to expanding its pipeline pump station. After Dane County initially approved the CUP with these insurance conditions, but pending Enbridge’s appeal to the Dane County Board of Supervisors, the Wisconsin Legislature passed 2015 Wisconsin Act 55, which prohibits counties from requiring an interstate pipeline operator to obtain additional insurance when the pipeline operating company carries comprehensive general liability insurance with coverage for “sudden and accidental” pollution liability. Although Dane County recognized the impact of Act 55 on the enforceability of the insurance conditions, it nevertheless issued the CUP with the invalid conditions.

In response, Enbridge filed a petition for writ of certiorari, which the Dane County Circuit Court granted. The circuit court struck the two insurance conditions from the CUP as unenforceable under Act 55. The court of appeals reversed, concluding that Enbridge failed to show it carried the requisite coverage triggering the statutory prohibition barring Dane County from imposing additional insurance procurement requirements. Enbridge maintains that because it carries the requisite insurance, Act 55 rendered Dane County’s extra insurance conditions unenforceable, and the proper remedy is to strike the illegal conditions, leaving the remainder of the permit in place. We agree with Enbridge, reverse the court of appeals decision, and reinstate the circuit court’s order.

Reversed

Concur:

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

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WI Supreme Court

Case Name: L.G., et al. v. Aurora Residential Alternatives, Inc., et al.

Case No.: 2019 WI 79

Focus: Arbitration

This case addresses whether a circuit court order denying a request to compel arbitration and stay a pending lawsuit is final for the purposes of appeal. We hold that it is and so reverse and remand the matter to the court of appeals.

Reversed and remanded

Concur:

Dissent:

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Supreme Court Digests

United States Supreme Court

Case Name: The Dutra Group, et al. v. Christopher Batterton

Case No.: 18-266

Focus: Punitive Damages

By granting federal courts jurisdiction over maritime and admiralty cases, the Constitution implicitly directs federal courts sitting in admiralty to proceed “in the manner of a common law court.” Exxon Shipping Co. v. Baker, 554 U. S. 471, 489–490 (2008). Thus, where Congress has not prescribed specific rules, federal courts must develop the “amalgam of traditional common-law rules, modifications of those rules, and newly created rules” that forms the general maritime law. East River S. S. Corp. v. Transamerica Delaval Inc., 476 U. S. 858, 864–865 (1986). But maritime law is no longer solely the province of the Federal Judiciary. “Congress and the States have legislated extensively in these areas.” Miles v. Apex Marine Corp., 498 U. S. 19, 27 (1990). When exercising its inherent common-law authority, “an admiralty court should look primarily to these legislative enactments for policy guidance.” Ibid. We may depart from the policies found in the statutory scheme in discrete instances based on long established history, see, e.g., Atlantic Sounding Co. v. Townsend, 557 U. S. 404, 424–425 (2009), but we do so cautiously in light of Congress’s persistent pursuit of “uniformity in the exercise of admiralty jurisdiction.” Miles, supra, at 26 (quoting Moragne v. States Marine Lines, Inc., 398 U. S. 375, 401 (1970)).

This case asks whether a mariner may recover punitive damages on a claim that he was injured as a result of the unseaworthy condition of the vessel. We have twice confronted similar questions in the past several decades, and our holdings in both cases were based on the particular claims involved. In Miles, which concerned a wrongful death claim under the general maritime law, we held that recovery was limited to pecuniary damages, which did not include loss of society. 498 U. S., at 23. And in Atlantic Sounding, after examining centuries of relevant case law, we held that punitive damages are not categorically barred as part of the award on the traditional maritime claim of maintenance and cure. 557 U. S., at 407. Here, because there is no historical basis for allowing punitive damages in unseaworthiness actions, and in order to promote uniformity with the way courts have applied parallel statutory causes of action, we hold that punitive damages remain unavailable in unseaworthiness actions.

Reversed and remanded

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

Concurring:

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United States Supreme Court

Case Name: Andrei Iancu v. Erik Brunetti

Case No.: 18-302

Focus: 1^st Amendment Violation

Two Terms ago, in Matal v. Tam, 582 U. S. ___ (2017), this Court invalidated the Lanham Act’s bar on the registration of “disparag[ing]” trademarks. 15 U. S. C. §1052(a). Although split between two non-majority opinions, all Members of the Court agreed that the provision violated the First Amendment because it discriminated on the basis of viewpoint. Today we consider a First Amendment challenge to a neighboring provision of the Act, prohibiting the registration of “immoral[] or scandalous” trademarks. Ibid. We hold that this provision infringes the First Amendment for the same reason: It too disfavors certain ideas.

Affirmed

Dissenting: ROBERTS, C. J., and BREYER, J., filed opinions concurring in part and dissenting in part. SOTOMAYOR, J., filed an opinion concurring in part and dissenting in part, in which BREYER, J., joined.

Concurring: ALITO, J., filed a concurring opinion. ROBERTS, C. J., and BREYER, J., filed opinions concurring in part and dissenting in part. SOTOMAYOR, J., filed an opinion concurring in part and dissenting in part, in which BREYER, J., joined.

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United States Supreme Court

Case Name: Food Marketing Institute v. Argus Leader Media

Case No.: 18-481

Focus: Statutory Interpretation

Congress has instructed that the disclosure requirements of the Freedom of Information Act do “not apply” to “confidential” private-sector “commercial or financial information” in the government’s possession. But when does information provided to a federal agency qualify as “confidential”? The Food Marketing Institute says it’s enough if the owner keeps the information private rather than releasing it publicly. The government suggests that an agency’s promise to keep information from disclosure may also suffice to render it confidential. But the courts below imposed a different requirement yet, holding that information can never be deemed confidential unless disclosing it is likely to result in “substantial competitive harm” to the business that provided it. Finding at least this “competitive harm” requirement inconsistent with the terms of the statute, we reverse.

Reversed and remanded

Dissenting: BREYER, J., filed an opinion concurring in part and dissenting in part, in which GINSBURG and SOTOMAYOR, JJ., joined

Concurring: BREYER, J., filed an opinion concurring in part and dissenting in part, in which GINSBURG and SOTOMAYOR, JJ., joined

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United States Supreme Court

Case Name: United States v. Maurice Lamont Davis, et al.

Case No.: 18-431

Focus: Sentencing Guideline – Penalties

In our constitutional order, a vague law is no law at all. Only the people’s elected representatives in Congress have the power to write new federal criminal laws. And when Congress exercises that power, it has to write statutes that give ordinary people fair warning about what the law demands of them. Vague laws transgress both of those constitutional requirements. They hand off the legislature’s responsibility for defining criminal behavior to unelected prosecutors and judges, and they leave people with no sure way to know what consequences will attach to their conduct. When Congress passes a vague law, the role of courts under our Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again.

Today we apply these principles to 18 U. S. C. §924(c). That statute threatens long prison sentences for anyone who uses a firearm in connection with certain other federal crimes. But which other federal crimes? The statute’s residual clause points to those felonies “that by [their] nature, involv[e] a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” §924(c)(3)(B). Even the government admits that this language, read in the way nearly everyone (including the government) has long understood it, provides no reliable way to determine which offenses qualify as crimes of violence and thus is unconstitutionally vague. So today the government attempts a new and alternative reading designed to save the residual clause. But this reading, it turns out, cannot be squared with the statute’s text, context, and history. Were we to adopt it, we would be effectively stepping outside our role as judges and writing a new law rather than applying the one Congress adopted.

Affirmed in part. Vacated and remanded in part.

Dissenting: KAVANAUGH, J., filed a dissenting opinion, in which THOMAS and ALITO, JJ., joined, and in which ROBERTS, C. J., joined as to all but Part II–C.

Concurring:

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United States Supreme Court

Case Name: Tennessee Wine and Spirits Retailers Association v. Russell F. Thomas, et al.

Case No.: 18-96

Focus: Commerce Clause Violation

The State of Tennessee imposes demanding durational residency requirements on all individuals and businesses seeking to obtain or renew a license to operate a liquor store. One provision precludes the renewal of a license unless the applicant has resided in the State for 10 consecutive years. Another provides that a corporation cannot obtain a license unless all of its stockholders are residents. The Court of Appeals for the Sixth Circuit struck down these provisions as blatant violations of the Commerce Clause, and neither petitioner—an association of Tennessee liquor retailers—nor the State itself defends them in this Court.

The Sixth Circuit also invalidated a provision requiring applicants for an initial license to have resided in the State for the prior two years, and petitioner does challenge that decision. But while this requirement is less extreme than the others that the Sixth Circuit found to be unconstitutional, we now hold that it also violates the Commerce Clause and is not shielded by §2 of the Twenty-first Amendment. Section 2 was adopted as part of the scheme that ended prohibition on the national level. It gives each State leeway in choosing the alcohol-related public health and safety measures that its citizens find desirable. But §2 is not a license to impose all manner of protectionist restrictions on commerce in alcoholic beverages. Because Tennessee’s 2-year residency requirement for retail license applicants blatantly favors the State’s residents and has little relationship to public health and safety, it is unconstitutional.

Affirmed

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

Concurring:

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United States Supreme Court

Case Name: James L. Kisor v. Robert Wilkie

Case No.: 18-15

Focus: Auer Deference

Petitioner James Kisor, a Vietnam War veteran, first sought disability benefits from the Department of Veterans Affairs (VA) in 1982, alleging that he had developed post-traumatic stress disorder from his military service. The agency denied his initial request, but in 2006, Kisor moved to reopen his claim. The VA this time agreed he was eligible for benefits, but it granted those benefits only from the date of his motion to reopen, not (as Kisor had requested) from the date of his first application. The Board of Veterans’ Appeals—a part of the VA—affirmed that retroactivity decision, based on its interpretation of an agency rule governing such claims. The Court of Appeals for Veterans Claims affirmed.

The Federal Circuit also affirmed, but it did so by applying a doctrine called Auer (or sometimes, Seminole Rock) deference. See Auer v. Robbins, 519 U. S. 452; Bowles v. Seminole Rock & Sand Co., 325 U. S. 410. Under that doctrine, this Court has long deferred to an agency’s reasonable reading of its own genuinely ambiguous regulations. The Court of Appeals concluded that the VA regulation at issue was ambiguous, and it therefore deferred to the Board’s interpretation of the rule. Kisor now asks the Court to overrule Auer, as well as its predecessor Seminole Rock, discarding the deference those decisions give to agencies.

Vacated and remanded

Dissenting:

Concurring: ROBERTS, C. J., filed an opinion concurring in part. GORSUCH, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined, in which KAVANAUGH, J., joined as to Parts I, II, III, IV, and V, and in which ALITO, J., joined as to Parts I, II, and III. KAVANAUGH, J., filed an opinion concurring in the judgment, in which ALITO, J., joined.

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United States Supreme Court

Case Name: United States v. Andre Ralph Haymond

Case No.: 17-1672

Focus: Sentencing Guidelines – 5th & 6th Amendment Violation

Respondent Andre Haymond was convicted of possessing child pornography, a crime that carries a prison term of zero to 10 years. After serving a prison sentence of 38 months, and while on supervised release, Mr. Haymond was again found with what appeared to be child pornography. The government sought to revoke his supervised release and secure a new and additional prison sentence. A district judge, acting without a jury, found by a preponderance of the evidence that Mr. Haymond knowingly downloaded and possessed child pornography. Under 18 U. S. C. §3583(e)(3), the judge could have sentenced him to a prison term of between zero and two additional years. But because possession of child pornography is an enumerated offense under §3583(k), the judge instead imposed that provision’s 5- year mandatory minimum. On appeal, the Tenth Circuit observed that whereas a jury had convicted Mr. Haymond beyond a reasonable doubt of a crime carrying a prison term of zero to 10 years, this new prison term included a new and higher mandatory minimum resting on facts found only by a judge by a preponderance of the evidence. The Tenth Circuit therefore held that §3583(k) violated the right to trial by jury guaranteed by the Fifth and Sixth Amendments.

Vacated and remanded

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

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

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United States Supreme Court

Case Name: Robert A. Rucho, et al. v. O. John Benisek, et al.

Case No.: 18-422; 18-726

Focus: Abuse of Discretion – Partisan Gerrymandering

Voters and other plaintiffs in North Carolina and Maryland filed suits challenging their States’ congressional districting maps as unconstitutional partisan gerrymanders. The North Carolina plaintiffs claimed that the State’s districting plan discriminated against Democrats, while the Maryland plaintiffs claimed that their State’s plan discriminated against Republicans. The plaintiffs alleged violations of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, the Elections Clause, and Article I, §2. The District Courts in both cases ruled in favor of the plaintiffs, and the defendants appealed directly to this Court.

These cases require us to consider once again whether claims of excessive partisanship in districting are “justiciable”—that is, properly suited for resolution by the federal courts. This Court has not previously struck down a districting plan as an unconstitutional partisan gerrymander, and has struggled without success over the past several decades to discern judicially manageable standards for deciding such claims. The districting plans at issue here are highly partisan, by any measure. The question is whether the courts below appropriately exercised judicial power when they found them unconstitutional as well.

Vacated and remanded

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

Concurring:

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United States Supreme Court

Case Name: Department of Commerce, et al. v. New York, et al.

Case No.: 18-966

Focus: Enumeration Clause Violation

The Secretary of Commerce decided to reinstate a question about citizenship on the 2020 census questionnaire. A group of plaintiffs challenged that decision on constitutional and statutory grounds. We now decide whether the Secretary violated the Enumeration Clause of the Constitution, the Census Act, or otherwise abused his discretion.

Affirmed in part. Reversed and remanded in part.

Dissenting:

Concurring: THOMAS, J., filed an opinion concurring in part and dissenting in part, in which GORSUCH and KAVANAUGH, JJ., joined. BREYER, J., filed an opinion concurring in part and dissenting in part, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed an opinion concurring in part and dissenting in part.

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United States Supreme Court

Case Name: Gerald P. Mitchell v. Wisconsin

Case No.: 18-6210

Focus: Warrantless Search – OWI – Blood Test

In this case, we return to a topic that we have addressed twice in recent years: the circumstances under which a police officer may administer a warrantless blood alcohol concentration (BAC) test to a motorist who appears to have been driving under the influence of alcohol. We have previously addressed what officers may do in two broad categories of cases. First, an officer may conduct a BAC test if the facts of a particular case bring it within the exigent-circumstances exception to the Fourth Amendment’s general requirement of a warrant. Second, if an officer has probable cause to arrest a motorist for drunk driving, the officer may conduct a breath test (but not a blood test) under the rule allowing warrantless searches of a person incident to arrest.

Today, we consider what police officers may do in a narrow but important category of cases: those in which the driver is unconscious and therefore cannot be given a breath test. In such cases, we hold, the exigent circumstances rule almost always permits a blood test without a warrant. When a breath test is impossible, enforcement of the drunk-driving laws depends upon the administration of a blood test. And when a police officer encounters an unconscious driver, it is very likely that the driver would be taken to an emergency room and that his blood would be drawn for diagnostic purposes even if the police were not seeking BAC information. In addition, police officers most frequently come upon unconscious drivers when they report to the scene of an accident, and under those circumstances, the officers’ many responsibilities—such as attending to other injured drivers or passengers and preventing further accidents—may be incompatible with the procedures that would be required to obtain a warrant. Thus, when a driver is unconscious, the general rule is that a warrant is not needed.

Vacated and remanded

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

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

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