Weekly Case Digests – June 8, 2020 – June 12, 2020

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: United States of            America v. Nicholas O. Nelson

Case No.: 19-2985

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

Focus:  Abuse of Discretion – Evidentiary Ruling

In the course of a police check of a suspicious vehicle, Nicholas Nelson was caught with a handgun. Because he previously had been convicted of a felony, it was a crime for him to possess such a weapon. He eventually was charged with violating 18 U.S.C. § 922(g), and he was convicted after a jury trial. He raises two arguments on appeal, both directed to his conviction: first, he complains about some evidentiary rulings of the district court, and second, he argues that a misstatement by the prosecutor during closing argument was so prejudicial that he should receive a new trial. The applicable standard of review dooms both points, and so we affirm his conviction.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Joseph W. Denan, et al., v. TransUnion LLC,

Case No.: 19-1519

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

Focus: FCRA Violation

Plaintiffs Joseph Denan and Adrienne Padgett sued consumer reporting agency Trans Union LLC, alleging violations of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq. We must decide whether §§ 1681e(b) and 1681i(a) of the FCRA compel consumer reporting agencies to determine the legal validity of disputed debts. The district court dismissed plaintiffs’ lawsuit, holding these provisions impose no such duty. Finding no error in the district court’s decision, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Michael Propst

Case No.: 19-2377

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

Focus: Sentencing Guidelines

A criminal defendant pleaded guilty to making threatening and harassing interstate telephone calls. He challenges his sentence, arguing the district court relied on an incorrect count of his previous similar convictions as well as insufficiently explained an upward variance in his sentence from the applicable Sentencing Guidelines range. We affirm the defendant’s sentence because he has not shown the district court relied on the misinformation resulting in plain error, and the court properly justified the sentence under the statutory sentencing criteria.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Dustin James v. Deborah Hale

Case No.: 19-1857

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

Focus: Issue of Material Fact – Sham-affidavit Rule

It is axiomatic that the first step in the summary-judgment process is to ask whether the evidentiary record establishes a genuine issue of material fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). To decide this question, the judge may disregard an affidavit that attempts to create a sham issue of fact. The “sham affidavit rule” exists in every circuit. This case illustrates the wisdom of the rule.

Dustin James, a former pretrial detainee at the St. Clair County Jail in Belleville, Illinois, filed a pro se civil-rights lawsuit against Deborah Hale, the administrator of the jail infirmary, accusing her of inadequately treating his medical needs. He later acquired counsel, and significant discovery followed, including the production of jail infirmary and outside medical records that contradicted allegations in his complaint. Through counsel James obtained leave from a magistrate judge to file an amended complaint, but the factual section simply repeated the allegations in the original pro se version. In a subsequent deposition, James contradicted those factual assertions. When Hale moved for summary judgment, James responded by swearing out an affidavit incorporating by reference the allegations in the amended complaint.

The magistrate judge disregarded the affidavit, as well as an affidavit submitted by James’s mother, and recommended that the district court grant the motion. The district judge excluded the affidavits under the sham-affidavit rule and entered summary judgment for Hale.

We affirm. Not only is James’s affidavit a sham, it was an improper attempt to convert the allegations in the complaint into sworn testimony to avert summary judgment. The exclusion of his mother’s affidavit was a mistake, but the error was harmless because she added nothing of substance. The constitutional claim lacks factual support, so summary judgment in Hale’s favor was proper.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Keith Hoglund v. Ron Neal, Warden

Case No.: 18-2949

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

Focus: Habeas Corpus

A jury found Keith Hoglund guilty of molesting his daughter. The district judge denied his petition for a writ of habeas corpus. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Left Field Media LLC v. City of Chicago, Illinois,

Case No.: 19-2904

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

Focus: Damages

Four years ago we held that Chicago is entitled to limit sales on the streets adjacent to Wrigley Field, home of the Chicago Cubs. Left Field Media LLC v. Chicago, 822 F.3d 988 (7th Cir. 2016). But we remanded for further proceedings on a magazine seller’s contention that an ordinance requiring all peddlers to be licensed is invalid because of an exception for newspapers. Id. at 991–94.

Requiring speakers to be licensed is problematic, doubly so when government distinguishes among kinds of speech. See, e.g., Reed v. Gilbert, 135 S. Ct. 2218 (2015); Watchtower Bible & Tract Society of New York, Inc. v. StraLon, 536 U.S. 150 (2002). Our opinion pointed out, however, that Left Field Media, which publishes the magazine Chicago Baseball, had never applied for a license, for itself or any of its peddlers, and that none of the peddlers had ever been ticketed for not having a license. Perhaps Chicago has always treated Chicago Baseball as a newspaper. It was therefore not clear that the case presented a justiciable controversy.

On remand Left Field Media asked the district judge to enjoin operation of the peddler’s-license requirement. Before the judge acted, however, Chicago amended its ordinance to eliminate the distinction of which Left Field Media complains. The amended ordinance, which took effect on November 1, 2016, provides: It shall be unlawful for any person to engage in the business of a peddler without first having obtained a street peddler license under this chapter. Provided, however, a street peddler license is not required for selling, offering or exposing for sale, or soliciting any person to purchase, only newspapers, periodicals, pamphlets, or other similar written materials on the public way.

Chicago Municipal Code §4-244-030. Whether Chicago Baseball is a newspaper or a magazine no longer matters, and Left Field Media withdrew its request for an injunction. Still, it contended, it should receive an award of damages to compensate for injury before the City amended the ordinance. It identified as expenses the costs it had incurred— after our mandate issued (June 21, 2016) and before being notified (October 15) that the old ordinance would no longer be enforced—in researching how the license requirement worked and discussing licensing with its sellers. Matthew Smerge, Left Field Media’s owner and principal employee, added that the ordinance had caused him emotional distress.

The district court dismissed the suit for want of a justiciable controversy. The judge did not doubt that the categories of expenses Left Field Media had identified could in principle support an award of damages. But the judge stated that, because all of the asserted injury occurred after Left Field Media filed suit, any loss is not compensable. Chicago does not defend the ground on which the district court dismissed the suit. Instead it contends that Left Field Media did not show any injury at all.

The sole plaintiff is Left Field Media LLC, a business organization. Businesses lack emotions. A business cannot engage in reverse veil piercing to recover damages for a loss suffered by an investor. See, e.g., In re Deist Forest Products, Inc., 850 F.2d 340 (7th Cir. 1988); Mid-State Fertilizer Co. v. Exchange National Bank, 877 F.2d 1333 (7th Cir. 1989). The expenses that Left Field Media claims to have incurred on its own behalf are those of unspecified efforts to learn how the licensing system worked and what peddlers needed to do. “Unspecified” is the key word. Left Field Media does not tell us what these efforts entailed, concretely, or what they cost. It never applied for a peddler’s license, so it did not pay the $100 fee or incur any related expense. Its claim appears to rest wholly on the value of Smerge’s time. Its brief depicts Smerge as a one-man band. But if he is a fulltime employee of Left Field Media, the firm has already purchased the value of his time. To recover damages, it would need to show some marginal expense, such as overtime wages. Nothing of the kind has been asserted, however. In that event the business’s loss would be the additional compensation needed to purchase this time; once again, however, Left Field Media does not contend that it incurred expenses of that kind.

Left Field Media also asserts that it incurred legal fees. If it paid a lawyer to find out how to get licenses, or to file applications, that could justify an award of damages. By contrast, the legal fees needed to pursue this litigation are not compensable, except under a fee-shifting statute such as 42 U.S.C. §1988. Left Field Media has not filed an affidavit from either Smerge or a lawyer explaining how much, if anything, it paid in an effort to comply with the ordinance, as opposed to an effort to have the ordinance held unconstitutional.

And that’s all there is. Because Left Field Media has not offered details, it would not be possible to conclude that it suffered even a dollar in marginal costs. A plaintiff need not do much to support an award of damages, but it must do something. Left Field Media has not seriously tried to show an injury, so the district court’s judgment is affirmed.

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: WOOD, Chief Judge, and BAUER, EASTERBROOK, KANNE, ROVNER, SYKES, HAMILTON, BARRETT, BRENNAN, SCUDDER, and ST. EVE, Circuit Judges.

Focus: Sufficiency of Evidence

While confined in the Polk County Jail, two female inmates, J.K.J. and M.J.J., endured repeated sexual assaults at the hands of correctional officer Darryl Christensen. The two women brought suit in federal court against Christensen and Polk County. A trial ensued, and the jury heard evidence of Christensen’s horrific misconduct over a three-year period. The County’s written policy prohibited sexual contact between inmates and guards but failed to address the prevention and detection of such conduct. Nor did the County provide any meaningful training on the topic. What is more, toward the beginning of the relevant period, the County learned that another guard made predatory sexual advances toward a different female inmate. The trial evidence showed that the County imposed minor discipline on the guard but from there took no institutional response—no review of its policy, no training for guards, no communication with inmates on how to report such abuse, no nothing. In the end, the jury returned verdicts for J.K.J. and M.J.J.

The case against Christensen was open and shut. But a divided panel of this court overturned the jury’s verdict against Polk County, determining that the trial evidence failed to meet the standard for municipal liability under Monell v. Department of Social Services, 436 U.S. 658 (1978). We decided to rehear the case en banc and now affirm the jury’s verdicts against both Christensen and Polk County. While the standard for municipal liability is demanding—designed to ensure that a municipality like Polk County is liable only for its own constitutional torts and not those of employees like Christensen—the evidence was sufficient to support the verdict against the County.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: Larry A. Wendtland, et al. v. David J. Frahm, Sr., et al.

Case No.: 2018AP2023

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

Focus: Judgment – Easement and Damages

David J. Frahm, Sr., and Constance J. Frahm (the Frahms) appeal from a judgment determining the location and width of a right-of-way easement. The Frahms also appeal from an award of double costs stemming from their refusal of a statutory offer of settlement. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Tavodess Matthews

Case No.: 2018AP2142

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

Focus: Court Error – Request for Substitution

Matthews argues that he requested substitution of the assigned judge in the case before any substantive issue was resolved and, therefore, the trial court was required to grant substitution. We disagree and, therefore, affirm.

Recommended for Publication

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Bill Yang

Case No.: 2018AP2439-CR

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

Focus: Court Error – Motion to Suppress Evidence Denied

Bill Yang appeals a judgment convicting him of fifteen drug-related felonies, five counts of felony bail jumping, and two felony counts of possession of a firearm by a felon. Yang contends the circuit court erred by denying his motions: (1) to suppress evidence law enforcement obtained from an automobile dealership that serviced his car and also from a GPS locator after it was maintained by law enforcement at the dealership; (2) to exclude on Confrontation Clause grounds out-of-court statements made by a deceased co-defendant; and (3) to have the judge recuse himself at sentencing on due process grounds. We conclude the circuit court properly denied Yang’s suppression motion; Yang forfeited the right to raise a Confrontation Clause claim on appeal by entering no-contest pleas; and Yang has failed to develop a coherent argument regarding judicial disqualification. Therefore, we affirm the judgment of conviction.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Paris Markese Chambers

Case No.: 2019AP17-CR; 2019AP18-CR

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

Focus: Sentencing Guidelines

Paris Markese Chambers appeals the judgments, entered upon his guilty pleas, convicting him of two counts of felony theft, one count of attempting to steal a motor vehicle, one count of stealing a motor vehicle, and two misdemeanor counts of criminal damage to property, all as a party to a crime; and two counts of bail jumping.  He also appeals the trial court’s order denying his postconviction motion.

Chambers argues that he is entitled to relief because his global sentence is harsh and unconscionable. We disagree and affirm.

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WI Court of Appeals – District I

Case Name: Gary Price, et al., v. American International Group, Inc., et al.,

Case No.: 2019AP57

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

Focus: Personal Injury – Negligence Claim

Gary Price appeals an order granting summary judgment in favor of Wisconsin Electric Power Co., d/b/a WE Energies. In this appeal relating to his personal injury action, Price argues that the circuit court erred when it dismissed his common law negligence and safe place claims. We reject Price’s arguments and affirm.

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WI Court of Appeals – District I

Case Name: Hummingbird Storage, LLC, v. City of Milwaukee Board of Zoning Appeals, et al.,

Case No.: 2019AP159

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

Focus: Certiorari Review – Standing

Hummingbird Storage, LLC, appeals an order dismissing its action for certiorari review of the decision of the City of Milwaukee’s Board of Zoning Appeals (BOZA) allowing a use variance for a self-service storage facility at 6801 West Morgan Avenue (Morgan Avenue property) in the City. Acquisition B owns the Morgan Avenue property.

Hummingbird argues that the trial court erred as a matter of law by granting BOZA and Acquisition B’s motion to dismiss the action based on Hummingbird’s lack of standing to challenge BOZA’s decision. Hummingbird argues it has standing (1) as an aggrieved person, (2) as a taxpayer, and (3) because the use variance violates the City’s comprehensive plan. Hummingbird also argues that the criteria to establish standing for challengers of use variances should be expanded and that the trial court erred because it should have allowed Hummingbird to present evidence to support its claim of standing. We are not persuaded and, therefore, affirm.

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WI Court of Appeals – District III

Case Name: Larry W. Rader v. Acuity, et al.,

Case No.: 2019AP186

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

Focus: Subject-matter Jurisdiction

Larry Rader, pro se, appeals an order dismissing with prejudice his claims against Pine Ridge Trails Community Services Association, Inc., and its insurer, Acuity, a Mutual Insurance Company. On appeal, Rader’s statement of the issues purports to raise two issues for our review: (1) did the circuit court lack subject matter jurisdiction over this lawsuit; and (2) did the court err by denying Rader’s October 9, 2018 summary judgment motion, which sought judgment in the amount of $1,834,000, plus 12% interest under WIS. STAT. § 628.46(1) (2015-16). We conclude the court had subject matter jurisdiction, and it properly struck Rader’s summary judgment motion as untimely. We also reject, or decline to consider, three other arguments that Rader appears to raise in his appellate briefs. We therefore affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Jeffrey I. Quitko

Case No.: 2019AP200-CR

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

Focus: Probable Cause – Suppression of Evidence

Jeffrey Quitko appeals a judgment, entered upon his no-contest plea, convicting him of eighth-offense operating a motor vehicle with a prohibited alcohol concentration (PAC). Quitko contends the circuit court erred in denying his motion to suppress evidence obtained following his traffic stop for a speeding violation because law enforcement: (1) unreasonably expanded the scope of the initial stop in order to conduct a PAC investigation without having reasonable suspicion to do so; and (2) lacked probable cause to request that Quitko submit to a preliminary breath test (PBT).

We agree with Quitko’s latter argument. In State v. Goss, 2011 WI 104, ¶2, 338 Wis. 2d 72, 806 N.W.2d 918, our supreme court held, under facts largely similar to those present in this case, that a law enforcement officer has probable cause to request that a driver submit to a PBT when three conditions are met: (1) the driver is known to be subject to a .02 PAC standard; (2) the officer knows the driver would need to consume very little alcohol to exceed that limit; and (3) and the officer smells alcohol on the driver. Because we conclude the State failed to meet its burden to establish that the second condition was satisfied in this case, we reverse the judgment of conviction and remand with directions that the circuit court grant Quitko’s suppression motion.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Kieuta Z. Perry, Jr.,

Case No.: 2019AP270-CR

Officials: Dugan, Fitzpatrick and Donald, JJ.

Focus: Court Error – Abuse of Discretion

Kieuta Z. Perry, Jr. appeals a judgment of conviction, following a jury trial, for armed robbery and first-degree recklessly endangering safety, both as a party to a crime. See WIS. STAT. §§ 943.32(2), 941.30(1), and 939.05 (2017-18). 1 At trial, Perry requested that the trial court grant a mistrial after a witness made a statement, unprompted, concerning a prior act allegedly committed by Perry. The trial court denied Perry’s motion. On appeal, Perry contends that the trial court erroneously exercised its discretion in denying his mistrial motion. Perry asks this court to reverse the trial court’s ruling on his motion for a mistrial and his judgment of conviction, and to remand this matter for a new trial. We conclude that Perry has failed to show that the trial court erroneously exercised its discretion. Therefore, we affirm Perry’s conviction.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. J.W.,

Case No.: 2020AP161

Officials: DUGAN, J.

Focus: Termination of Parental Rights

J.W. appeals the order terminating his parental rights to his biological child, R.W. J.W. argues that the trial court erroneously exercised its discretion when it terminated J.W.’s parental rights because the trial court’s decision was based on its determination that J.W. was unlikely to meet the conditions of return for his daughter because J.W. has a learning disability with respect to reading and writing. We disagree and, therefore, affirm.

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WI Court of Appeals – District III

Case Name: Eau Claire County Department of Human Services, v. S.E.,

Case No.: 2019AP894

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

Focus: Termination of Parental Rights

Sophie appeals a nonfinal order in this termination of parental rights (TPR) case. That order denied Sophie’s motion asking the circuit court to determine that the Eau Claire County Department of Human Services (the Department) must prove the elements of the continuing CHIPS ground for a TPR as previously set forth in WIS. STAT. § 48.415(2)(a) (2015-16), as opposed to the elements now set forth in § 48.415(2)(a) (2017-18).

In June 2016, Sophie’s son, Tyler, was placed outside of her home. In August 2016, the circuit court entered a CHIPS order, and Tyler’s placement continued with the issuance of subsequent CHIPS orders. At the initial out-of-home placement hearing and at four subsequent permanency plan review hearings, the court, as required by statute, gave Sophie written and oral notice that her parental rights could be terminated pursuant to the continuing CHIPS ground. As relevant here, that ground previously required the Department to prove there was a substantial likelihood that Sophie would not meet the conditions established for the return of Tyler to her home within nine months following a TPR fact-finding hearing. See WIS. STAT. § 48.415(2)(a)3. (2015-16).

Our legislature changed the continuing CHIPS ground’s elements in April 2018 when it passed 2017 Wis. Act 256, § 1, which amended WIS. STAT. § 48.415(2)(a)3. (2015-16). The amended version eliminated a prospective analysis under the continuing CHIPS ground for a TPR if the child had already been placed outside the parent’s home for at least “15 out of the most recent 22 months.” Compare § 48.415(2)(a)3. (2015-16), with § 48.415(2)(a)3. (2017-18). A few months after the amendment took effect, the Department petitioned to terminate Sophie’s parental rights based on the continuing CHIPS ground. The petition stated the continuing CHIPS elements set forth by the amended version of the statute.

Sophie asserts the amended version of WIS. STAT. § 48.415(2)(a) should not be used as a basis to terminate her parental rights because the notice she was given when the CHIPS orders were first issued included the continuing CHIPS elements set forth in the prior version of the statute. For the reasons set forth, we disagree. In Sophie’s TPR proceedings, the circuit court must employ the current, amended version of § 48.415(2)(a). We also disagree with Sophie that applying the amended version of the statute to her circumstances violates her constitutional rights to due process. We therefore affirm the order of the circuit court.

Recommended for Publication

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. D.R.C.,

Case No.: 2019AP1155

Officials: NEUBAUER, C.J.

Focus: Miranda Warnings – Motion to Suppress

D.R.C. appeals from a dispositional order finding him delinquent for operating a motor vehicle without the owner’s consent, and he challenges the denial of his motion to suppress statements he made to police.  D.R.C. was stopped and questioned by police after he fled the scene of a car accident. We conclude that when D.R.C. made the statements, he was not in custody requiring Miranda warnings, but was instead subject to an investigatory stop while the police investigated a serious car crash. We therefore affirm.

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WI Court of Appeals – District III

Case Name: Brown County Depart of Human Services v. H.P.,

Case No.: 2019AP1324; 2019AP1325

Officials: HRUZ, J.

Focus: Termination of Parental Rights and Due Process Violation

In these consolidated appeals, Haley appeals nonfinal orders of the circuit court in two termination of parental rights (TPR) cases pertaining to her children, Rachel and Jack. Those orders denied Haley’s motion asking the circuit court to determine that the Brown County Department of Human Services (the Department) must prove the elements of the continuing CHIPS ground for a TPR as previously set forth in WIS. STAT. § 48.415(2)(a) (2015-16), as opposed to the elements now set forth by § 48.415(2)(a) (2017-18).

Haley contends the Department cannot use the amended version of WIS. STAT. § 48.415(2)(a) as a basis to terminate her parental rights because its elements changed during the pendency of her CHIPS cases, such that applying the current statutory elements would violate her constitutional rights to procedural due process. For the reasons set forth herein, we disagree. Haley’s TPR proceedings must employ the amended, and current, version of § 48.415(2)(a), and such an application of the statute to her circumstances does not violate her due process rights. We therefore affirm the orders of the circuit court.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Wisconsin Legislature v. Andrea Palm, et al.,

Case No.: 2020 WI 42

Focus: Statutory Authority – Emergency Order 28

This case is about the assertion of power by one unelected official, Andrea Palm, and her order to all people within Wisconsin to remain in their homes, not to travel and to close all businesses that she declares are not “essential” in Emergency Order 28. Palm says that failure to obey Order 28 subjects the transgressor to imprisonment for 30 days, a $250 fine or both. This case is not about Governor Tony Evers’ Emergency Order or the powers of the Governor.

Accordingly, we review the Wisconsin Legislature’s Emergency Petition for Original Action that asserts: (1) Palm as Secretary-designee of the Department of Health Services (DHS), broke the law when she issued Emergency Order 28 after failing to follow emergency rule procedures required under Wis. Stat. § 227.24 (2017-18), and (2) even if rulemaking were not required, Palm exceeded her authority by ordering everyone to stay home, closing all “non-essential” businesses, prohibiting private gatherings of any number of people who are not part of a single household, and forbidding all “non-essential” travel. Palm responded that Emergency Order 28 is not a rule. Rather, it is an Order, fully authorized by the powers the Legislature assigned to DHS under Wis. Stat. § 252.02.

We conclude that Emergency Order 28 is a rule under the controlling precedent of this court, Citizens for Sensible Zoning, Inc. v. DNR, 90 Wis. 2d 804, 280 N.W.2d 702 (1979), and therefore is subject to statutory emergency rulemaking procedures established by the Legislature. Emergency Order 28 is a general order of general application within the meaning of Wis. Stat. § 227.01(13), which defines “Rule.” Accordingly, the rulemaking procedures of Wis. Stat. § 227.24 were required to be followed during the promulgation of Order 28. Because they were not, Emergency Order 28 is unenforceable.6 Furthermore, Wis. Stat. § 252.25 required that Emergency Order 28 be promulgated using the procedures established by the Legislature for rulemaking if criminal penalties were to follow, as we explain fully below. Because Palm did not follow the law in creating Order 28, there can be no criminal penalties for violations of her order. The procedural requirements of Wis. Stat. ch. 227 must be followed because they safeguard all people.

We do not conclude that Palm was without any power to act in the face of this pandemic. However, Palm must follow the law that is applicable to state-wide emergencies. We further conclude that Palm’s order confining all people to their homes, forbidding travel and closing businesses exceeded the statutory authority of Wis. Stat. § 252.02 upon which Palm claims to rely.

Rights declared

Concur: ROGGENSACK, C.J., delivered the majority opinion of the Court, in which ZIEGLER, REBECCA GRASSL BRADLEY, and KELLY, JJ., joined. ROGGENSACK, C.J., filed a concurring opinion. REBECCA GRASSL BRADLEY, J., filed a concurring opinion, in which KELLY, J. joined. KELLY, J., filed a concurring opinion, in which REBECCA GRASSL BRADLEY, J., joined.

Dissent: ANN WALSH BRADLEY, J., filed a dissenting opinion, in which DALLET, J., joined. DALLET, J., filed a dissenting opinion, in which ANN WALSH BRADLEY, joined. HAGEDORN, J., filed a dissenting opinion, in which ANN WALSH BRADLEY, and DALLET, JJ., joined with respect to ¶¶198-258.

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Supreme Court Digests

United States Supreme Court

Case Name: Lucky Brand Dungarees, Inc., et al., v. Marcel Fashions Group, Inc.

Case No.: 18-1086

Focus: Defense Preclusion

This case arises from protracted litigation between petitioners Lucky Brand Dungarees, Inc., and others (collectively Lucky Brand) and respondent Marcel Fashions Group, Inc. (Marcel). In the latest lawsuit between the two, Lucky Brand asserted a defense against Marcel that it had not pressed fully in a preceding suit between the parties. This Court is asked to determine whether Lucky Brand’s failure to litigate the defense in the earlier suit barred Lucky Brand from invoking it in the later suit. Because the parties agree that, at a minimum, the preclusion of such a defense in this context requires that the two suits share the same claim to relief—and because we find that the two suits here did not—Lucky Brand was not barred from raising its defense in the later action.

Reversed and remanded

Dissenting:

Concurring:

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