Weekly Case Digests – December 30, 2019 – January 3, 2019

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: United States of America v. Carleous Clay

Case No.: 19-1223

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

Focus: Sentencing Guidelines

Carleous Clay challenges his within-guidelines life sentence as unreasonable. He pled guilty to kidnapping a woman, setting her afire, and leaving her to die. In a plea agreement, he also admitted for sentencing purposes that, while he was in pretrial detention in jail for those charges, he held a case worker hostage and threatened to kill her. Clay argues that he is entitled to a new sentencing hearing because the district judge based his sentence solely on aggravating factors and ignored his acceptance of responsibility. Because the district judge adequately justified the sentence based on the statutory sentencing factors, we affirm the judgment.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Dexter Fisher

Case No.: 18-2765

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

Focus: Sentencing – Supervised Release

In the late summer and fall of 2014, multiple pharmacies in Indianapolis were robbed at gun point. Police eventually arrested Dexter Fisher, who was later charged with nine offenses for his involvement in three of the robberies. A jury found Fisher guilty of Hobbs Act robbery, brandishing a firearm during a crime of violence, and being a felon in possession of a firearm. The district court then imposed a sentence, which included conditions of supervised release and an order that Fisher forfeit the firearm used in his offenses.

Fisher appealed his convictions for brandishing a firearm, the forfeiture of his firearm, and parts of his sentence relating to supervised release. Only one alleged error needs correction: an inconsistency between the oral sentence and the written judgment, regarding whether terms of supervised release attach to certain counts. We remand with specific instructions to correct that portion of the written judgment.

Affirmed in part. Remanded in part.

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7^th Circuit Court of Appeals

Case Name: Linda Waldon, et al. v. Wal-Mart Stores, Inc.,

Case No.: 19-1529

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

Focus: Sufficiency of Evidence

While shopping at a Wal-Mart store, Linda Waldon believes she slipped on a plastic hanger and fell causing her injuries. Under Indiana premises-liability law, a defendant must have actual or constructive knowledge of a condition on the premises that involves an unreasonable risk of harm to an invitee. After discovery, the district court concluded there was no evidence Wal-Mart knew of such a condition and granted it summary judgment. We review this decision, and we consider whether photographs the Waldons rely on to show store conditions have been intentionally altered, requiring sanctions against the Waldons’ counsel.

Affirmed with Order to show cause

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7^th Circuit Court of Appeals

Case Name: Shirlena Barnes v. City of Centralia, Illinois, et al.

Case No.: 19-1377

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

Focus: 4^th Amendment Violation – Unlawful Seizure and Malicious Prosecution

While arresting gang members in Centralia, Illinois, police officer Michael Peebles felt intimidated when Shirlena Barnes, a city resident with gang connections, drove up and yelled derogatory epithets. Later, Barnes posted statements on social media that Peebles believed threatened him and his family. As a private citizen, Peebles submitted a complaint to the police department and participated no further. After a police investigation, Barnes was arrested, and a criminal prosecution followed. The state later dismissed the charges, and Barnes sued Peebles and the City of Centralia asserting her civil rights were violated. The district court granted summary judgment to the officer and the city, which we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Rex A. Frederickson v. Tizoc Landeros, Detective

Case No.: 18-1605

Officials: WOOD, Chief Judge, and EASTERBROOK and KANNE, Circuit Judges

Focus: Equal Protection Violation

The Equal Protection Clause of the Fourteenth Amendment requires that state actors have, at a minimum, a rational basis for treating similarly situated people differently. Rex Frederickson alleges that Officer Tizoc Landeros prevented him from updating his Illinois sexual offender registration and otherwise used his official position to harass Frederickson purely out of personal dislike. Without an updated registration, Frederickson was unable to move from Joliet, Illinois, to nearby Bolingbrook.

The district court found that Frederickson had put forth enough evidence to allow a jury to find that Landeros had singled Frederickson out for unfavorable treatment, and that in so doing Landeros was motivated solely by personal animus and thus lacked a rational basis for his actions. Frederickson v. Landeros, No. 11 C 3484, 2018 WL 1184730 (N.D. Ill. March 7, 2018). The district court also held, relying on our decision in Hanes v. Zurick, 578 F.3d 491, 496 (7th Cir. 2009), that “Frederickson’s equal protection right to ‘police protection uncorrupted by personal animus’ [was] clearly established.” 2018 WL 1184730 at *8 (quoting from Hanes). Relying on these two conclusions, the district court denied Landeros’s motion for summary judgment based on qualified immunity as it applied to Frederickson’s equal protection theory. It also found that Landeros was entitled to qualified immunity on Frederickson’s theories based on a substantive due process right to intrastate travel and an alleged procedural due process right to register under the Illinois sex offender legislation. Frederickson did not cross‐appeal from the latter two findings, and so we need not address them. Landeros filed a timely appeal from the partial denial of qualified immunity. We conclude that the district court’s order must be affirmed.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Monette E. Saccameno v. U.S. Bank National Association

Case No.: 19-1569     

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

Focus: Bankruptcy – Damages

Chapter 13 bankruptcy is a promise to a debtor: if you comply with the bankruptcy plan, then you can get a fresh start. That promise went unfulfilled for Monette Saccameno. She had done everything that was required of her: she cured the delinquencies in her mortgage and made 42 monthly mortgage payments under the court’s watchful eye. Near the end of her bankruptcy, she obtained statements from her mortgage servicer, Ocwen Loan Servicing, LLC, that she was paid up—that she was paid ahead even. The court granted her a discharge.

Ocwen, however, immediately began trying to collect money that it was not owed and threatening foreclosure. No problem, Saccameno thought, it must be a simple mistake. She sent Ocwen all the paperwork it could have needed to fix its records. When that did not work, she sent it again. Then she sent it a third and fourth time, with a request from an acquaintance, a lawyer, for an explanation why Ocwen thought she owed money. Ocwen did not explain. Ocwen did not care. Ocwen did not truly grasp how wrong its records were until almost four years later, two days into Saccameno’s jury trial when its witness was testifying.

It is little wonder, then, that the jury awarded Saccameno substantial damages for the pain, frustration, and emotional torment Ocwen put her through. The jury ordered Ocwen to pay $500,000 in compensatory damages based on three causes of action that could not support punitive damages. A fourth claim, under the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA), 815 ILCS 505/1, did allow punitive damages, and for that claim the jury awarded them to the tune of $3,000,000, plus compensatory damages of an additional $82,000. Ocwen challenged this verdict on a variety of grounds, but the district court upheld the verdict in its entirety. On appeal, Ocwen has limited its arguments to the punitive damages award, which it contends was not authorized by Illinois law and is so large that it deprives the company of property without due process of law. We agree with the district court that the jury was well within its rights to punish Ocwen. We must, however, conclude that the amount of the award is excessive. We therefore remand to the district court to amend the judgment.

Remanded

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7^th Circuit Court of Appeals

Case Name: United States of America v. Shawn M. Dewitt

Case No.: 19-1295

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

Focus: Sufficiency of Evidence

Trials often require jurors, as laypeople considering evidence, to draw inferences based on their life experiences. The duty is most unenviable in cases requiring jurors to view images of child sexual abuse. After doing so in Shawn Dewitt’s trial, the jury found him guilty of child pornography offenses. Dewitt argues the government’s evidence was insufficient because the jury heard no expert testimony (from a medical doctor, for example) about the age of girls depicted in images sent from his cellphone. While some cases may present close calls that benefit from expert evidence, this one does not. The jury heard and saw more than enough to make a reliable finding that Dewitt possessed, produced, and distributed images of children. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Ruben Porraz

Case No.: 18-3545

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

Focus: Sentencing Guidelines

Ruben Porraz was the leader of a Chicago chapter of the Latin Kings gang for about four years. In 2018 he pleaded guilty to participating in a racketeering conspiracy in violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961– 1968. The district judge applied the base offense level for conspiracy to commit murder, factored in Porraz’s criminal history, and sentenced him to 188 months in prison.

Porraz argues that his sentence was procedurally defective because he didn’t kill anyone and murder wasn’t a reasonably foreseeable part of the conspiracy. He also claims his sentence was substantively unreasonable because of unwarranted disparities between his sentence and sentences imposed on other Latin Kings members. We affirm. Porraz’s admitted conduct defeats his claim that murder was not a reasonably foreseeable part of his gang activities. And the judge considered and responded to his disparity arguments.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Kendrick Deavane Alexander

Case No.: 2017AP2273-CR

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

Focus: Ineffective Assistance of Counsel and Abuse of Discretion

Kendrick Deavane Alexander appeals from a judgment of conviction for two counts of first-degree recklessly endangering safety by use of a dangerous weapon and one count of being a felon in possession of a firearm. See WIS. STAT. §§ 941.30(1), 939.63(1)(b), and 941.29(2)(a) (2013- 14). Alexander also appeals from an order denying his postconviction motion that sought a new trial or, in the alternative, resentencing.

We conclude that Alexander is entitled to a Machner hearing with respect to his claim that trial counsel provided ineffective assistance.  Therefore, we reverse that part of the postconviction order and remand for a Machner hearing. In light of the remand, it would be premature to consider Alexander’s request that this court exercise its discretion and order a new trial in the interest of justice, so we will not address that request. However, in the interest of judicial economy, this court has considered Alexander’s argument that the trial court erroneously exercised its sentencing discretion when it stated, “I represent the community.” We conclude that the trial court’s statement, viewed in context, did not constitute an erroneous exercise of discretion. Therefore, we affirm that part of the postconviction order denying Alexander’s request for resentencing.

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WI Court of Appeals – District III

Case Name: Christus Lutheran Church of Appleton v. Wisconsin Department of Transportation

Case No.: 2018AP1114

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

Focus: Condemnation – Appraisal – “All Property” Requirement

State law requires that when a governmental entity wishes to condemn property for transportation use, it must issue to the property owner a jurisdictional offer that is based on an appraisal. See WIS. STAT. § 32.05(2)(b), (3)(e) (2017-18). Christus Lutheran Church of Appleton challenges the validity of the jurisdictional offer the Wisconsin Department of Transportation (DOT) made for its property. The DOT’s offer was approximately $270,000 more than the property value stated in an appraisal submitted by the DOT in support of the offer, and the offer also included items (such as severance damages) that were not included in the appraisal. Although Christus Lutheran would benefit monetarily from the increased jurisdictional offer, it contends the DOT could not condemn its property at this time because there was an insufficient nexus between the jurisdictional offer and the appraisal.

We conclude the jurisdictional offer in this case was not sufficiently based on the appraisal. The appraisal must value “all property proposed to be acquired,” WIS. STAT. § 32.05(2)(a), and it must form a “fundamental ingredient” or “supporting part” of the jurisdictional offer, Otterstatter v. City of Watertown, 2017 WI App 76, ¶24, 378 Wis. 2d 697, 904 N.W.2d 396. In this case, the third-party appraisal concluded that no severance damages would occur as a result of the project, yet the DOT’s jurisdictional offer included a $159,574 line item for such damages. Given that just compensation for a taking includes applicable severance damages, see WIS. STAT. § 32.09(6)(e), the appraisal failed to satisfy subsec. (2)(a)’s “all property” requirement. As a result, the jurisdictional offer’s line item for severance damages found no support in the appraisal, and the offer was invalid under subsecs. (2)(b) and (3)(e). We therefore reverse the order granting summary judgment to the DOT and remand for further proceedings consistent with this opinion.

Recommended for Publication

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WI Court of Appeals – District III

Case Name: Michael G. DeSombre, et al. v. James I. Boldebuck, et al.

Case No.: 2018AP2227

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

Focus: Property – Riparian Rights – Piers

This case concerns a dispute regarding the ownership of a pier and a “wet boathouse”—that is, a boathouse constructed beyond the ordinary high water mark (OHWM) of a navigable waterway. Michael and Jiyoung DeSombre sued their neighbors, James and Charity Boldebuck, seeking a declaration that the DeSombres own a permanent pier and wet boathouse extending into Otter Lake in Vilas County, as well as a declaration that the pier and wet boathouse do not interfere with the Boldebucks’ riparian rights. The circuit court granted summary judgment in favor of the DeSombres on both of their claims.

We conclude the circuit court erred by granting the DeSombres summary judgment because they failed to make a prima facie showing that the pier and wet boathouse are not located at least partially within the Boldebucks’ riparian zone. At the very least, there are disputed issues of material fact regarding the location of the pier and wet boathouse in relation to the parties’ respective riparian zones. We therefore reverse the court’s grant of summary judgment in favor of the DeSombres and remand for further proceedings on their claims.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Jonathan A. Ortiz-Rodriguez

Case No.: 2018AP2401-CR

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

Focus: Plea Withdrawal

Jonathan A. Ortiz-Rodriguez appeals from his judgment of conviction for one count of first-degree sexual assault of a child under the age of thirteen, to which he pled guilty. He also appeals from an order of the trial court denying his postconviction motion without an evidentiary hearing.

Ortiz-Rodriguez seeks to withdraw his plea on the ground that it was not knowingly, intelligently, and voluntarily entered as a result of ineffective assistance by his trial counsel. Pursuant to the plea agreement, the parties were “free to argue” at sentencing regarding an appropriate sentence; however, OrtizRodriguez asserts that counsel incorrectly informed him that the State was going to recommend an initial confinement term of five to eight years. Instead, the State recommended an initial confinement term of twenty years, which the trial court ultimately imposed.

The trial court denied Ortiz-Rodriguez’s postconviction motion without an evidentiary hearing, finding that he had not alleged sufficient facts in his motion to demonstrate that he was prejudiced by this claimed error. We affirm.

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WI Court of Appeals – District III

Case Name: Ali H. Mardan, et al. v. Ingie Mardan

Case No.: 2019AP333

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

Focus: Declaratory Judgment – Divorce Proceedings

Ali and Mary Mardan (collectively, the Mardans) appeal an order that dismissed their declaratory judgment claims against their former daughter-in-law, Ingie Mardan (Ingie). We conclude the circuit court properly dismissed the Mardans’ claims on the grounds that they were not ripe for adjudication. We further conclude the Mardans have failed to show that they were prejudiced by the court’s consultation with the judge who presided over the divorce action terminating Ingie’s marriage to the Mardans’ son, or by the court’s consideration of certain documents not of record in this case, but filed in the divorce action. We therefore affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Shelton M. Kingcade

Case No.: 2018AP1385-CR

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

Focus: Ineffective Assistance of Counsel

Shelton Kingcade appeals a judgment of conviction for one count of repeated sexual assault of a child and one count of second-degree sexual assault of a child. He also appeals the circuit court’s orders denying his motion for postconviction relief and motion for reconsideration.

Kingcade raises three issues on appeal. First, he asserts that his trial counsel was ineffective in numerous respects. Second, he argues that the State withheld impeachment evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). Third, he asserts that the circuit court made such serious errors that we should invoke our statutory powers to reverse in the interest of justice. We reject all of Kingcade’s arguments and affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Deandre M. Smith

Case No.: 2018AP1835-CR

Officials: Blanchard, Kloppenburg, and Graham, JJ.

Focus: Sufficiency of Evidence

Deandre Smith appeals a judgment convicting him of battery and felon in possession of a firearm, as acts of domestic abuse, and an order denying his postconviction motions to vacate the judgment of conviction. Smith argues that he was denied effective assistance of counsel because his trial attorney mishandled both the victim’s testimony and an unduly prejudicial photograph of a gun. He also argues that the evidence was insufficient to convict him of the felon in possession charge. Finally, he argues that the interests of justice warrant a new trial. We reject Smith’s arguments and affirm the circuit court.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Chris Feller

Case No.: 2019AP318

Officials: BLANCHARD, J.

Focus: Court Error – Testimony

Chris Feller appeals a judgment of conviction for driving on a freeway in excess of the 70-miles-per-hour speed limit, in violation of WIS. STAT. § 346.57(4)(gm)2. Feller does not argue that the circuit court clearly erred in crediting the testimony of a radar-equipped state trooper that Feller drove 81 m.p.h. in a 70 m.p.h. zone. Indeed, Feller admitted at the court trial that he drove 81 m.p.h. Instead, Feller argues that the court should have credited his testimony that his speeding was justified because it was necessary to avoid a collision with a dangerous tailgater, and that this justification is a defense. Feller testified that he rapidly accelerated to 81 m.p.h. as he passed another vehicle because he was being dangerously tailgated. But the court credited the trooper’s testimony that Feller was not being tailgated at the time. I assume without deciding that necessity, or “legal justification,” based on the conduct of a nonpolice actor could be a viable defense to a strict liability speeding citation, and affirm because Feller fails to show that the court clearly erred in discrediting Feller’s testimony and crediting the trooper’s testimony on the topic of dangerous tailgating.

Appellate courts do not set aside circuit court findings of fact on appeal unless the findings are clearly erroneous. WIS. STAT. § 805.17(2). It is for the circuit courts to resolve conflicts in testimony and to determine the credibility of witnesses. Global Steel Prods. Corp. v. Ecklund, 2002 WI App 91, ¶10, 253 Wis. 2d 588, 644 N.W.2d 269. Appellate courts search the record for evidence to support factual findings of a circuit court, and do not search for findings that the circuit court could have made but did not. Id. The State was required to prove its speeding case against Feller through “evidence that is clear, satisfactory and convincing.” See WIS. STAT. § 345.45.

On appeal, Feller presents a misleading statement of the case, omitting key testimony by the trooper, and a corresponding argument with an inaccurate premise. It is not true, as Feller asserts, that Feller’s account of a dangerous tailgater “was uncontradicted” by other evidence. As summarized above, in testimony credited by the circuit court, the trooper provided his observation that vehicle 3 was not even tailgating Feller’s vehicle 2 during the pertinent time—much less that there was any indication that vehicle 3 was manically harassing Feller, as Feller testified. In sum, Feller argues on appeal that Feller’s testimony about a dangerous tailgater stood unrebutted and therefore his speeding was justified, but the premise of this argument is inaccurate. The trooper provided “evidence that is clear, satisfactory and convincing” to support the court’s finding of speeding, and the court had more than enough evidence to support a finding that Feller did not speed out of necessity.

Given those conclusions, I need not and do not address the dispute between the parties over whether State v. Brown, 107 Wis. 2d 44, 318 N.W.2d 370 (1982), should be extended to allow for a defense of necessity, or “legal justification,” in a speeding case in which the alleged necessity arose from conduct of a person who is not in law enforcement.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Michael B. Kingsley

Case No.: 2019AP492-CR

Officials: Blanchard, Kloppenburg and Graham, JJ.

Focus: Probable Cause – Suppression of Evidence

Michael Kingsley appeals a judgment of conviction for possession of THC and misdemeanor bail jumping. Kingsley challenges the circuit court’s denial of a motion to suppress. He argues that the police lacked reasonable suspicion to conduct a protective search of his vehicle during the course of a traffic stop. We conclude that there was reasonable suspicion for the search. Accordingly, we affirm.

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WI Court of Appeals – District IV

Case Name: Dane County Department of Human Services v. J.R.

Case No.: 2019AP820; 2019AP821

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

Focus: Termination of Parental Rights

In these consolidated appeals, J.R. appeals non-final orders of the Dane County Circuit Court. Those orders denied J.R.’s motions requesting the circuit court to rule that, in order to establish the continuing CHIPS ground for the termination of J.R.’s parental rights, the Dane County Department of Human Services (the County) must prove the elements for that ground set forth in WIS. STAT. § 48.415(2)(a) (2015-16) rather than the elements set forth in § 48.415(2)(a) (2017-18).

At the time the orders placing J.R.’s children outside the home were first entered in two CHIPS cases, WIS. STAT. § 48.415(2)(a) (2015-16) set out the elements of the continuing CHIPS ground and the orders referred to those elements. The continuing CHIPS ground elements were changed when § 48.415(2)(a) (2015-16) was amended by 2017 Wis. Act 256, § 1. See § 48.415(2)(a) (2017-18). About seven months after that amendment took effect, the County filed the petitions to terminate J.R.’s parental rights and the petitions stated the elements set forth in the amended version of the statute.

J.R. contends that the County is required to prove the elements of the prior version of WIS. STAT. § 48.415(2)(a), whereas the County contends that it is required to prove the elements of the amended version of that statute. For the reasons set forth below, we conclude that the County is required to establish the elements for the ground of continuing CHIPS set forth in the amended version of § 48.415(2)(a). Accordingly, we affirm the orders of the circuit court.

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WI Court of Appeals – District IV

Case Name: Douglas Robert Strehlow v. Renee Marie Cera

Case No.: 2019AP842

Officials: KLOPPENBURG, J.

Focus: Eviction – Monetary Judgment

Douglas Robert Strehlow filed this small claims action against Renee Marie Cera, seeking eviction and monetary relief for Cera’s alleged failure to pay rent due for March 2019. At a hearing on April 22, 2019, Strehlow submitted as exhibits the lease agreement between him and Cera, and the five-day and fourteen-day notices that he had given Cera. On April 23, 2019, the circuit court entered judgment for eviction and for money in the amount of $1,371.50. Cera appeals. As I explain, her appeal fails in several respects.

Cera’s primary argument on appeal is that she had a defense to Strehlow’s claim, namely, that she did not pay the full amount of rent due in March based on alleged deficiencies in the condition of the rental unit, Strehlow’s alleged failure to correct those deficiencies, and Cera’s alleged efforts to correct those deficiencies. Cera attaches to her appellant’s brief copies of photographs, email correspondence, and invoices in support of her argument.

I acknowledge Cera’s assertions of the harsh consequences of the eviction and monetary judgments in her situation. However, for all of the reasons stated above, her appeal from those judgments fails and, therefore, I affirm.

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WI Supreme Court Digests

WI Supreme Court

Case Name: State of Wisconsin v. Autumn Marie Love Lopez, et al.

Case No.: 2019 WI 101

Focus: Statutory Interpretation – Theft

This is a review of a published decision of the court of appeals in two consolidated cases, State v. Lopez and State v. Rodriguez, 2019 WI App 2, 385 Wis. 2d 482, 922 N.W.2d 855, reversing the Green County circuit court’s order. The circuit court order dismissed without prejudice the criminal complaints against Autumn Marie Love Lopez (“Lopez”) and Amy J. Rodriguez (“Rodriguez”), which charged them with a single count of retail theft of items valued at more than $500 and less than $5,000, as parties to a crime, contrary to Wis. Stat. §§ 943.50(1m)(c) and (4)(bf), and 939.05 (2015-16). The circuit court concluded that the State may not charge multiple acts of misdemeanor retail theft as a single felony. The court of appeals reversed and concluded that the State may charge multiple acts of retail theft as one continuous offense pursuant to Wis. Stat. § 971.36(3)(a). We affirm the court of appeals.

Pursuant to Wis. Stat. § 971.36(3), “[i]n any case of theft involving more than one theft, all thefts may be prosecuted as a single crime” provided certain criteria are satisfied. This court must decide whether the statutory term “theft” includes the statutory charge of retail theft. Lopez argues that it does not. She argues that “theft” includes only the five modes of theft described in Wis. Stat. § 943.20, not retail theft. The State argues that “theft” means any type of theft, including retail theft.

We conclude that “theft” under Wis. Stat. § 971.36 includes retail theft under Wis. Stat. § 943.50. We therefore conclude that the State has authority to charge multiple retail thefts under § 943.50 as one continuous offense pursuant to § 971.36(3). Thus, we affirm the court of appeals.

Affirmed

Concur: R.G. BRADLEY, J. concurs, joined by KELLY, J. (except for footnote 2 and statement in ¶34 that she does not join the lead opinion). (opinion filed) KELLY, J. concurs (except for ¶25-31). (opinion filed)

Dissent:

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Supreme Court Digests

United States Supreme Court

Case Name: David Thompson, et al. v. Heather Hebdon, et al. 

Case No.: 19-122

Focus: 1^st Amendment Violation – Political Contribution Limits

Alaska law limits the amount an individual can contribute to a candidate for political office, or to an election oriented group other than a political party, to $500 per year. Alaska Stat. §15.13.070(b)(1) (2018). Petitioners Aaron Downing and Jim Crawford are Alaska residents. In 2015, they contributed the maximum amounts permitted under Alaska law to candidates or groups of their choice, but wanted to contribute more. They sued members of the Alaska Public Offices Commission, contending that Alaska’s individual-to-candidate and individual-to-group contribution limits violate the First Amendment.

The Ninth Circuit declined to apply our precedent in Randall v. Sorrell, 548 U. S. 230 (2006), the last time we considered a non-aggregate contribution limit. See 909 F. 3d, at 1037, n. 5. In Randall, we invalidated a Vermont law that limited individual contributions on a per-election basis to: $400 to a candidate for Governor, Lieutenant Governor, or other statewide office; $300 to a candidate for state senator; and $200 to a candidate for state representative. JUSTICE BREYER’s opinion for the plurality observed that “contribution limits that are too low can . . . harm the electoral process by preventing challengers from mounting effective campaigns against incumbent officeholders, thereby reducing democratic accountability.” 548 U. S., at 248–249; see also id., at 264–265 (Kennedy, J., concurring in judgment) (agreeing that Vermont’s contribution limits violated the First Amendment); id., at 265–273 (THOMAS, J., joined by Scalia, J., concurring in judgment) (agreeing that Vermont’s contribution limits violated the First Amendment while arguing that such limits should be subject to strict scrutiny). A contribution limit that is too low can therefore “prove an obstacle to the very electoral fairness it seeks to promote.” Id., at 249 (plurality opinion).*

In Randall, we identified several “danger signs” about Vermont’s law that warranted closer review. Ibid. Alaska’s limit on campaign contributions shares some of those characteristics. First, Alaska’s $500 individual-to-candidate contribution limit is “substantially lower than . . . the limits we have previously upheld.” Id., at 253. Second, Alaska’s individual-to-candidate contribution limit is “substantially lower than . . . comparable limits in other States.” Randall, 548 U. S., at 253. Third, Alaska’s contribution limit is not adjusted for inflation. We observed in Randall that Vermont’s “failure to index limits means that limits which are already suspiciously low” will “almost inevitably become too low over time.” 548 U. S., at 261. The failure to index “imposes the burden of preventing the decline upon incumbent legislators who may not diligently police the need for changes in limit levels to ensure the adequate financing of electoral challenges.” Ibid. So too here. In fact, Alaska’s $500 contribution limit is the same as it was 23 years ago, in 1996. 1996 Alaska Sess. Laws ch. 48, §10(b)(1).

In Randall, we noted that the State had failed to provide “any special justification that might warrant a contribution limit so low.” 548 U. S., at 261. The parties dispute whether there are pertinent special justifications here. In light of all the foregoing, the petition for certiorari In light of all the foregoing, the petition for certiorari is granted, the judgment of the Court of Appeals is vacated, and the case is remanded for that court to revisit whether Alaska’s contribution limits are consistent with our First Amendment precedents.

Vacated and remanded

Dissenting:

Concurring:

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