Weekly Case Digests – July 27, 2020 – July 31, 2020

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: R3 Composites Corp., v. G&S Sales Corp

Case No.: 19-2290

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

Focus: Breach of Contract – Commission Agreements

The central issue in this case is whether R3 Composites Corporation owes G&S Sales Corporation any additional sales commissions for work G&S did as a representative for R3. The parties agreed on a written contract. The critical term dealing with sales commissions did not show any agreement on commission rates. It said instead that the parties would try to agree on commission rates on a job-by-job, customer-by-customer basis. Everyone agrees that the original “agreement to agree” would not have been enforceable by itself, but the parties did in fact later agree on commission rates for each customer and went forward with their business.

The district court granted summary judgment for manufacturer R3, relying primarily on the original failure to agree on commission rates. We reverse. A reasonable jury could find that the later job-by-job commission agreements were governed by the broader terms of the original written contract. The rest of the case is rife with factual disputes that cannot be resolved on summary judgment.

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: United States of America v. Carlos Maez; et al.

Case No.: 19-1287; 19-1768; 19-2049

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

Focus: Court Error – Jury Instructions

In separate cases, juries found appellants Carlos Maez, Matthew Jones, and Cameron Battiste guilty of violating 18 U.S.C. § 922(g), which prohibits convicted felons and several other classes of people from possessing firearms or ammunition. In their appeals, the three defendants raise overlapping issues relying on Rehaif v. United States, 139 S. Ct. 2191 (2019), to challenge their convictions in trials held before Rehaif was decided. Before Rehaif, the federal courts of appeals had all held that § 922(g) required the government to prove a defendant knowingly possessed a firearm or ammunition, but not that the defendant knew he or she be‐ longed to one of the prohibited classes. United States v. Williams, 946 F.3d 968, 970 (7th Cir. 2020). In Rehaif, the Supreme Court reached a different conclusion, holding that the statute requires the government to “show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it.” 139 S. Ct. at 2194.

Courts across the nation are grappling with how Rehaif affects cases pending on direct appeal when it came down. This court has already affirmed several pre‐Rehaif convictions based on guilty pleas, but this is our first precedential decision concerning convictions upon jury verdicts. See United States v. Ballard, 950 F.3d 434, 436 n.1 (7th Cir. 2020); United States v. Dowthard, 948 F.3d 814, 818 (7th Cir. 2020); Williams, 946 F.3d at 975. The three appellants assert types of error that we have not yet addressed in light of Rehaif: a missing element in their indictments and jury instructions and—in Jones’s case—a denied motion for a judgment of acquittal. Applying plain‐error review, we conclude that the asserted errors do not require reversing any of the convictions. We vacate Jones’s sentence, however. As the government acknowledges, the district court made what is known as a Tapia error, imposing a longer prison term for purposes of rehabilitation through prison programs. See Tapia v. United States, 564 U.S. 319, 334 (2011).

Affirmed

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7^th Circuit Court of Appeals

Case Name: Logan A. Owsley v. Mark E. Gorbett, et al.,

Case No.: 19-1825

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

Focus: 14^th Amendment Violation – Access to Courts Claim

Public officials in Bartholomew County, Indiana, believe that Cary Owsley committed suicide. His son, Logan, believes that Cary was murdered by his wife, Lisa, and her sons DeWayne and Josh. Contending that the Sheriff and his deputies have lost or destroyed evidence that would help Cary’s estate to pursue claims against the putative murderers, Logan filed this federal civil-rights suit, invoking 42 U.S.C. §§ 1983, 1985, and 1986.

Logan purported to represent his father’s estate, but except for a brief time he has not been its administrator. Lisa Owsley occupied that position, and Indiana’s judiciary denied Logan’s request to replace her. See In re Estate of Owsley, No. 03C01-1406-ES-002796 (Ind. Cir. Ct., Feb. 16, 2016). See also Owsley v. Gorbett, 87 N.E.3d 44 (Ind. App. 2017) (affirming the denial of Logan’s motion to open a separate estate). The estate decided not to pursue litigation, but it did assign to Logan “[w]hatever interest the Estate of Cary A. Owsley has in the federal lawsuit” (id. at ¶5). The state’s appellate court implied that “whatever interest” the estate had is worthless but left final determination to the federal court.

The federal court dismissed Logan’s suit for lack of standing. Instead of deciding whether the assignment to Logan conferred a valuable interest, the judge wrote that Logan has not suffered any personal injury. And because Logan’s federal claim failed, the judge dismissed without prejudice Logan’s state-law tort claims for infliction of emotional distress. All parties are citizens of Indiana, so only the supplemental jurisdiction of 28 U.S.C. §1367 could support the tort claims, and with federal jurisdiction lacking the state-law claims also had to go.

Dismissal of the federal claims on jurisdictional grounds was a misstep. Logan asserts injury and seeks damages. Decedents’ relatives may have damages claims against tortfeasors, and Logan also has the benefit of the assignment from the estate. Federal law permits assignees to sue on assignors’ claims. See Sprint Communications Co. v. APCC Services, Inc., 554 U.S. 269 (2008). The right to sue as representative of an estate depends on state law, see Fed. R. Civ. P. 17(b)(3), and the district court properly recognized that the state court’s decision to retain Lisa as the estate’s representative is not subject to collateral attack. Cf. Marshall v. Marshall, 547 U.S. 293 (2006) (discussing the probate exception to federal jurisdiction). Calling Lisa a “conspirator” does not enable a federal court to take over a probate matter. That leaves the assigned claim. The district judge evidently believed that it is not worth anything, but that concerns the merits rather than subject-matter jurisdiction. See Bell v. Hood, 327 U.S. 678 (1946). Otherwise every losing suit would be dismissed for lack of jurisdiction.

Logan contends that, by concealing or destroying evidence that the estate could have used to sue Lisa and her children—or perhaps to persuade a state judge to replace Lisa as the estate’s administrator—defendants deprived the estate of access to the courts, thus violating the Constitution. (Logan does not contend, however, that he or his father’s estate had a right to have the Sheriff and police investigate anyone for murder. See Castle Rock v. Gonzales, 545 U.S. 748 (2005); DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989).) Like the state court, we have doubts about this “access” approach.

Logan does not contend that the defendants did anything that blocked the estate from filing a wrongful-death suit. Cary’s estate decided not to sue because it believed that he committed suicide, not because defendants in this federal suit closed the courthouse doors.

The district court did not consider this subject, and perhaps Logan has a line of argument, not articulated in his appellate briefs, that would overcome our skepticism. The first order of business on remand should be to decide whether an access-to-courts claim, the only thing covered by the assignment, can be based on an assertion that the defendants concealed or destroyed evidence that could have been relevant, had suit been filed in state court.

Vacated and remanded

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7^th Circuit Court of Appeals

Case Name: City of Chicago v. William P. Barr

Case No.: 18-2885; 19-3290

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

Focus: Abuse of Discretion – Byrne JAG Program

In this appeal from two consolidated cases, we consider for a second time the legality of conditions imposed by the Attorney General on the Edward Byrne Memorial Justice Assistance Grant Program (“Byrne JAG”). See 34 U.S.C. § 10151 et seq. (formerly 42 U.S.C. § 3750). Previously, the district court granted a preliminary injunction as to two conditions—known as the notice and access conditions—imposed by the Attorney General on the FY 2017 Byrne JAG grant applicants. We upheld the preliminary injunction and its nationwide scope in City of Chicago v. Sessions, 888 F.3d 272 (7th Cir. 2018) (“Chicago I”).

The Attorney General then took the rare step of seeking en banc review limited to only the nationwide scope of the injunction, excluding the determination that injunctive relief was proper as to the notice and access conditions, and we granted en banc review. During the pendency of that review, the district court granted a permanent injunction, and in light of that superseding relief we vacated the decision granting en banc review. City of Chicago v. Sessions, No. 17-2991, 2018 WL 4268814, at *2 (7th Cir. Aug. 10, 2018). The district court again determined that the notice and access conditions imposed by the Attorney General were unlawful and unconstitutional, but also determined that a third condition—the compliance condition—was unconstitutional as well. City of Chicago v. Sessions, 321 F. Supp. 3d 855 (N.D. Ill. 2018). The court extended the injunction to apply to all FY 2017 grant recipients program-wide, but in light of our prior grant of en banc review regarding the scope of the injunction, stayed the injunction to the extent that it applied beyond the City of Chicago.

The Attorney General appealed that determination, and while it was pending in this court, the district court granted a permanent injunction in a second case brought by the City of Chicago, this time challenging the Attorney General’s imposition of conditions on the FY 2018 Byrne JAG grant. City of Chicago v. Barr, 405 F. Supp. 3d 748 (N.D. Ill. 2019). Those conditions included the same notice, access, and compliance conditions that the district court enjoined as to the FY 2017 grant, as well as some new conditions. The district court enjoined the imposition of all of the challenged conditions as to the FY 2018 Byrne JAG grant and all future years, and once more stayed the injunction as to grantees other than the City of Chicago. Id. at 770. The Attorney General again appealed to this court, and we consolidated the two cases for the purposes of the appeal.

The stakes in this case are high. Chicago, like many local governments, has determined that: (1) effective law enforcement requires the cooperation of its undocumented residents; (2) such cooperation cannot be accomplished if those residents fear immigration consequences should they communicate with the police; and, therefore, (3) local law enforcement must remain independent from federal immigration enforcement. The Byrne JAG grant was enacted by Congress to support the needs of local law enforcement to help fight crime, yet it now is being used as a hammer to further a completely different policy of the executive branch—presenting a city such as Chicago with the stark choice of forfeiting the funds or undermining its own law enforcement effectiveness by damaging that cooperative relationship with its residents.

We conclude again today, as we did when presented with the preliminary injunction, that the Attorney General cannot pursue the policy objectives of the executive branch through the power of the purse or the arm of local law enforcement; that is not within its delegation. It is the prerogative of the legislative branch and the local governments, and the Attorney General’s assertion that Congress itself provided that authority in the language of the statutes cannot withstand scrutiny.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Norman Peck v. IMC Credit Services

Case No.: 19-3187

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

Focus: FDCPA Violation

Norman Peck sued IMC Credit Services for mailing him a letter to collect a debt that he insists he does not owe, in violation of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692–1692p. The district court entered judgment for Peck under Federal Rule of Civil Procedure 68 in the amount of $1,101.00, “plus costs to be determined by the Court.” Peck sought “costs” in the amount of $25,293.65, but the district court did not award any. Because Peck requested costs not contemplated by the federal rules and the relevant statute, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Arwa Chiropractic, P.C., v. Med-Care Diabetic & Medical Supplies, Inc., et al.,

Case No.: 19-1916

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

Focus: Summary Judgment – Good Cause Standard

A medical supply company sent faxes to thousands of medical providers to solicit prescriptions to sell medical equipment to the providers’ patients. One provider received numerous faxes and filed this class action challenging the faxing practices under the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq.

As the case worked its way through the district court, the supply company failed to appear and had default judgment entered against it as to liability but not damages. Later the supplier’s chief executive officer was granted summary judgment. Concerned with an inconsistency, the district court vacated the default judgment against the supply company and entered judgment for both the executive and the company. The medical provider appeals that decision.

We affirm the judgment for the executive. But because the good cause standard was not applied in vacating the default judgment against the company, and inconsistent judgments between the individual and corporate defendants do not present a problem, we reverse and remand for further proceedings on the claim against the company.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Quincy Bioscience, LLC, v. Ellishbooks, et al.,

Case No.: 19-1799

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

Focus: Sanctions

On April 24, 2020, we issued an opinion affirming the judgment in favor of the appellee, Quincy Bioscience, LLC (“Quincy”). See Quincy Bioscience, LLC v. Ellishbooks, 957 F.3d 725, 726 (7th Cir. 2020). Quincy now seeks an award of sanctions under Federal Rule of Appellate Procedure 38. The motion is granted.

Motion granted

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: Kathy Schwab, n/k/a Siech v. Paul Schwab

Case No.: 2019AP1200

Officials: Sheila T. Reiff, Clerk of Court of Appeals

Focus: Order Amending Opinion

PLEASE TAKE NOTICE that corrections were made to paragraphs 6, 10, 12, and 18, and paragraph numbering was changed from paragraphs 6-23 in the above-captioned opinion which was released on May 5, 2020. A corrected electronic version in its entirety is available on the court’s website at www.wicourts.gov.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Mark J. Bucki

Case No.: 2018AP999-CR

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

Focus: Abuse of Discretion – Admittance of Evidence

Mark Bucki appeals a judgment of conviction, entered following a jury trial, for first-degree intentional homicide, strangulation, and hiding a corpse, all involving his estranged wife, Anita. Bucki argues he is entitled to a new trial because the circuit court erroneously exercised its discretion when it admitted two forms of canine scent evidence: (1) opinions from handlers of cadaver dogs that their dogs had alerted to the scent of human remains at various locations on Bucki’s property; and (2) opinions from handlers of trailing dogs that their dogs had detected in the area where Anita’s body was found the scent from a pair of tennis shoes taken from Bucki’s residence. Bucki argues the court should not have admitted this canine scent evidence because it was not corroborated by any physical evidence and because it was of low probative value and was highly prejudicial.

We conclude the circuit court did not erroneously exercise its discretion when it decided to admit the canine scent evidence. It is undisputed that this case involves expert testimony under WIS. STAT. § 907.02 (2017-18). Following a two-day evidentiary hearing on the admissibility of the canine scent evidence, the court conducted a lengthy analysis in which it identified and applied the proper factors under that statute. We reject Bucki’s request for a categorical rule that would condition the admissibility of relevant canine scent evidence on there being physical or forensic evidence corroborating the dog alerts. Rather, expert testimony regarding dog alerts, like all other expert testimony, may be admitted if the court concludes it satisfies the threshold reliability criteria in § 907.02 and is not otherwise subject to exclusion under WIS. STAT. § 904.03.

Bucki also appeals an order denying his postconviction motion seeking a new trial based on the alleged ineffective assistance of his trial counsel. In particular, Bucki argues his trial attorneys violated his Sixth Amendment right to counsel by failing to call his own canine scent expert at trial; failing to present evidence that Anita had on one occasion worn the tennis shoes used in the trailing dog search, thereby contaminating them; and failing to sufficiently challenge the State’s theory that an area of disturbed earth on Bucki’s property was an abandoned burial site for Anita’s body. We conclude Bucki’s trial attorneys did not perform deficiently, and we affirm the judgment and order.

Recommended for Publication

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Teresa Ann Patriquin

Case No.: 2019AP169-CR

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

Focus: Due Process Violation

Teresa Patriquin appeals from an amended judgment convicting her, based upon a no-contest plea, of possession of amphetamine with intent to deliver (>50g), as a party to the crime, and from an order denying her postconviction motion for resentencing. Patriquin contends she was denied due process because she was not fully informed about the contents of the presentence investigation report (PSI) prior to her sentencing. She also argues her trial counsel provided ineffective assistance in several related respects. We affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. James L. Thorin

Case No.: 2019AP241

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

Focus: Sufficiency of Evidence

James Thorin appeals an order denying his petition for supervised release from his commitment as a sexually violent person, pursuant to WIS. STAT. ch. 980 (2017-18). Thorin argues there was insufficient evidence to support the circuit court’s determination that he failed to establish, by clear and convincing evidence, that he met the five statutory criteria for supervised release. We disagree and affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Barry J. Krull

Case No.: 2019AP370-CR

Officials: STARK, P.J.

Focus: OWI – 4^th Amendment Violation

Barry Krull appeals a judgment convicting him of third-offense operating a motor vehicle while intoxicated (OWI). Krull argues the circuit court erred by denying his motion to suppress. Specifically, he contends the court should have granted his motion because law enforcement violated his Fourth Amendment rights by: (1) unlawfully detaining him on private property without a warrant; and (2) subjecting him to a warrantless blood draw. We reject these arguments and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. DeCarlos K. Chambers

Case No.: 2019AP411-CR

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

Focus: Ineffective Assistance of Counsel

Decarlos K. Chambers appeals a judgment convicting him after a jury trial of second-degree reckless homicide with a dangerous weapon, as a party to a crime, and unlawful possession of a firearm by a person previously adjudicated delinquent of a felony. He also appeals an order denying his postconviction motion. Chambers argues that he should be granted a new trial because his trial counsel impermissibly conceded his guilt to the jury during the closing argument without his consent. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. John D. Carter

Case No.: 2019AP598-CR; 2019AP599-CR

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

Focus: Ineffective Assistance of Counsel

John D. Carter appeals from judgments, entered upon his guilty pleas, convicting him of three drug-related charges. Carter also appeals from an order denying his postconviction motion without a hearing.1 Carter asserts that: (1) the State breached the plea agreement and his trial attorney was ineffective for failing to object to the breach; (2) his trial attorney improperly counseled him about the State’s offer; (3) his trial attorney was ineffective for failing to move to dismiss a conspiracy count; and (4) the trial court failed to establish a factual basis for Carter’s plea to the conspiracy charge. We conclude that the circuit court appropriately denied the postconviction motion without a hearing and, accordingly, we affirm the judgments and order.

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WI Court of Appeals – District III

Case Name: Zygmund Jablonski, Jr., et al., v. City of Ashland

Case No.: 2019AP1632

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

Focus: Equal Protection Claim

Zygmund Jablonski, Jr., A to Z Plumbing & Heating, Inc., and Triangle Holdings, LLC, (collectively, “the Jablonski entities”) appeal an order granting summary judgment to the City of Ashland on the Jablonski entities’ equal protection claim. We conclude the circuit court properly dismissed the equal protection claim because the Jablonski entities’ complaint failed to state a claim upon which relief could be granted. We therefore affirm.

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WI Court of Appeals – District IV

Case Name: Susan K. Neberman, et al., v. Artisan and Truckers Casualty Insurance Company and Hunter Scott

Case No.: 2019AP103

Officials: Blanchard, Graham and Nashold, JJ.

Focus: Evidentiary Hearing

This appeal is brought by plaintiffs Susan Neberman and the Estate of Sean Schaller, by Douglas Schaller, personally and as special administrator (collectively, Plaintiffs). Plaintiffs appeal a circuit court judgment entered in favor of the defendants Scott Maas and Maas’s insurer, Auto Owners Insurance Company (collectively, Defendants).

Plaintiffs brought this action following an automobile crash that resulted in the death of Sean Schaller, the son of Susan Neberman and Douglas Schaller, who was a passenger in a vehicle driven by Hunter Scott. A trial was held regarding liability for the crash and potential damages, and the jury found for Defendants on all issues. Plaintiffs filed post-trial motions, requesting a new trial on liability and damages, and requesting an evidentiary hearing and a new trial based on the jury’s alleged exposure to extraneous prejudicial information.  The circuit court initially granted Plaintiffs’ motion for a new trial only as to damages but denied the motion for a new trial on liability. However, at the request of the parties, the court subsequently concluded that, because Scott had filed for bankruptcy, a new trial solely on damages would be “futile and/or moot.” The court denied Plaintiffs’ motion with respect to the alleged jury exposure to extraneous prejudicial information without holding an evidentiary hearing. Plaintiffs appeal, and Defendants cross-appeal. We affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Christopher Drew Helwig

Case No.: 2019AP448-CR

Officials: GRAHAM, J.

Focus: OWI – Admittance of Evidence – Blood Test

Christopher Helwig appeals a judgment convicting him of operating a motor vehicle while intoxicated (OWI). During his trial, the circuit court admitted evidence of his blood alcohol concentration test result without requiring testimony from the registered nurse who collected the sample of his blood. On appeal, Helwig argues that the court erred by admitting evidence of the test result, and also by admitting a form that documents basic details about the arrest and the blood draw. I reject Helwig’s arguments and affirm the circuit court.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Jonathan Billy Thompson

Case No.: 2019AP767-CR

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

Focus: Sufficiency of Evidence – Discovery Statute Violation

Jonathan Thompson appeals a judgment convicting him, following a jury trial, of theft of movable property as a repeat offender. The sole issue on appeal is whether evidence that was not disclosed to the defense until after the trial had begun should have been excluded as a penalty for violating the discovery statute. We conclude that the evidence at issue was not subject to the discovery statute because it was not in the State’s possession, custody, or control, but was instead in the possession, custody, and control of a witness who was not an agent of the State.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Carlos Trevino

Case No.: 2019AP934-CR

Officials: Kloppenburg, Graham, and Nashold, JJ.

Focus: Court Error – Abuse of Discretion

Carlos Trevino appeals a judgment convicting him of two counts of burglary as party to a crime, one count of theft, and one count of theft as party to a crime. Trevino argues that the circuit court misused its discretion when it allowed an amendment to the information the day before trial. We disagree and affirm the judgment.

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WI Court of Appeals – District IV

Case Name: Juneau County Department of Human Services v. C.C.

Case No.: 2020AP438

Officials: KLOPPENBURG, J.

Focus: Termination of Parental Rights

The Juneau County Department of Health Services commenced this action seeking the termination of C.C.’s parental rights to her son, K.C. C.C. appeals the circuit court’s order granting the County’s motion for partial summary judgment on the existence of grounds to terminate CC’s parental rights based on abandonment. C.C. makes three arguments in support of her appeal: (1) the circuit court improperly made factual findings instead of determining whether there were genuine issues of material fact as to whether C.C. had good cause for failing to visit or communicate with her son during the second, third, and fourth of the four periods of abandonment alleged by the County; (2) the court erroneously considered evidence outside of the summary judgment record, consisting of the criminal complaint connected with C.C.’s incarceration during the alleged fourth period of abandonment; and (3) the court erroneously permitted the County to file an affidavit with its reply brief in support of its summary judgment motion. I conclude that: (1) C.C. has failed to show that there is a genuine issue of material fact as to the absence of good cause for her not communicating with her son and his foster parents during at least a more than three-month portion of the fourth alleged period of abandonment; and (2) whether the court properly considered the criminal complaint and permitted the County to file the affidavit on reply need not be reached because I do not rely on either the criminal complaint or the reply affidavit in my de novo review. Accordingly, I affirm the order terminating C.C.’s parental rights to her son.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Office of Lawyer Regulation v. Elvis C. Banks

Case No.: 2020 WI 51

Focus: Attorney Disciplinary Hearing

We review a report filed by Referee John B. Murphy, recommending that the court reinstate, with conditions, Elvis C. Banks’ license to practice law in Wisconsin. After careful review of the matter, we agree that Attorney Banks’ license should be reinstated and that conditions should be placed upon his practice of law. We also conclude that Attorney Banks should be required to pay the full costs of this reinstatement proceeding, which are $4,205.80 as of September 18, 2019.

Reinstatement granted with conditions

Concur:

Dissent: KELLY, J. dissents, joined by REBECCA GRASSL BRADLEY, J.

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WI Supreme Court

Case Name: State of Wisconsin v. David Gutierrez

Case No.: 2020 WI 52

Focus: Court Error – Other Acts Evidence

This is a review of a published decision of the court of appeals reversing the judgment of conviction entered against David Gutierrez.

Gutierrez was convicted of multiple counts of sexual assault and enticement of his stepdaughter. In a postconviction motion, Gutierrez alleged the denial of his constitutional right to an impartial jury and to effective assistance of counsel. Gutierrez appealed the denial of his postconviction motion. He also appealed his judgment of conviction on the grounds that the circuit court erred in its decision to exclude unidentified DNA evidence and to admit “other acts” evidence. The court of appeals reversed the circuit court’s decision to exclude the unidentified DNA evidence and affirmed its decision to admit other acts evidence. The judgment of conviction was vacated and the case was remanded for a new trial. The State petitioned for review.

We conclude that the court of appeals erroneously reversed the circuit court’s exercise of discretion in excluding unidentified DNA evidence. We further conclude that the court of appeals properly affirmed the circuit court’s admission of other acts evidence. Lastly, we conclude that Gutierrez was not denied his right to an impartial jury or his right to effective assistance of counsel. Accordingly, we reverse the court of appeals’ decision as to the unidentified DNA evidence and affirm its decision as to the other acts evidence. We also affirm the circuit court’s denial of Gutierrez’s postconviction motion.

Affirmed in part, reversed in part.

Concur:

Dissent:

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WI Supreme Court

Case Name: State of Wisconsin v. Mose B. Coffee

Case No.: 2020 WI 53

Focus: Unlawful-stop Claim – Reasonable Suspicion

We review a decision of the court of appeals affirming the circuit court denial of Mose B. Coffee’s motion to suppress evidence obtained from a search of a vehicle incident to his lawful arrest for Operating While Intoxicated (OWI) that Coffee argues violated the Fourth Amendment of the United States Constitution. The court of appeals reasoned that the lawful arrest for OWI, in and of itself, supplied a basis to search the passenger compartment, and, specifically, a bag located behind the driver’s seat that contained marijuana.

We disagree that the lawful arrest for OWI, in and of itself, supplied a sufficient basis to search the passenger compartment of Coffee’s vehicle. However, the search was lawful because police had reasonable suspicion, based on the totality of the circumstances, that the passenger compartment, and, specifically, the bag, might contain evidence of OWI. Accordingly, we affirm the court of appeals.

Affirmed

Concur: KELLY, J., filed a concurring opinion.

Dissent: DALLET, J., filed a dissenting opinion, in which REBECCA GRASSL BRADLEY, J., joined.

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Supreme Court Digests

United States Supreme Court

Case Name: GE Energy Power Conversion France Sas Corp, v. Outokumpu Stainless USA, LLC, et al., 

Case No.: 18-1048

Focus: Equitable Estoppel Violation

The question in this case is whether the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 21 U. S. T. 2517, T. I. A. S. No. 6997, conflicts with domestic equitable estoppel doctrines that permit the enforcement of arbitration agreements by nonsignatories. We hold that it does not.

Reversed and remanded

Dissenting:

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

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United States Supreme Court

Case Name: Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC, et al.,

Case No.: 18-1334

Focus: Constitution’s Appointment Clause Violation – Senate Confirmation

The Constitution’s Appointments Clause says that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States . . . .” Art. II, §2, cl. 2 (emphasis added). In 2016, Congress enacted the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA). 130 Stat. 549, 48 U. S. C. §2101 et seq. That Act created a Financial Oversight and Management Board, and it provided, as relevant here, that the President could appoint its seven members without “the advice and consent of the Senate,” i.e., without Senate confirmation.

In 2016, Congress enacted the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA). 130 Stat. 549, 48 U. S. C. §2101 et seq. That Act created a Financial Oversight and Management Board, and it provided, as relevant here, that the President could appoint its seven members without “the advice and consent of the Senate,” i.e., without Senate confirmation. The question before us is whether this method of appointment violates the Constitution’s Senate confirmation requirement. In our view, the Appointments Clause governs the appointments of all officers of the United States, including those located in Puerto Rico. Yet two provisions of the Constitution empower Congress to create local offices for the District of Columbia and for Puerto Rico and the Territories. See Art. I, §8, cl. 17; Art. IV, §3, cl. 2. And the Clause’s term “Officers of the United States” has never been understood to cover those whose powers and duties are primarily local in nature and derive from these two constitutional provisions. The Board’s statutory responsibilities consist of primarily local duties, namely, representing Puerto Rico in bankruptcy proceedings and supervising aspects of Puerto Rico’s fiscal and budgetary policies. We therefore find that the Board members are not “Officers of the United States.” For that reason, the Appointments Clause does not dictate how the Board’s members must be selected.

Reversed and remanded

Dissenting:

Concurring: THOMAS, J., and SOTOMAYOR, J., filed opinions concurring in the judgment.

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United States Supreme Court

Case Name: Gregory Dean Banister v. Lorie Davis

Case No.: 18-6943

Focus: Habeas Corpus – Successive Petition

A state prisoner is entitled to one fair opportunity to seek federal habeas relief from his conviction. But he may not usually make a “second or successive habeas corpus application.” 28 U. S. C. §2244(b). The question here is whether a motion brought under Federal Rule of Civil Procedure 59(e) to alter or amend a habeas court’s judgment qualifies as such a successive petition. We hold it does not. A Rule 59(e) motion is instead part and parcel of the first habeas proceeding.

Reversed and remanded

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

Concurring:

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United States Supreme Court

Case Name: James J. Thole, et al., v. U.S. Bank N.A., et al.,

Case No.: 17-1712

Focus: ERISA Claim – Standing to Sue

Plaintiffs James Thole and Sherry Smith are retired participants in U. S. Bank’s defined-benefit retirement plan, which guarantees them a fixed payment each month regardless of the plan’s value or its fiduciaries’ good or bad investment decisions. Both have been paid all of their monthly pension benefits so far and are legally and contractually entitled to those payments for the rest of their lives. Nevertheless, they filed a putative class-action suit against U. S. Bank and others (collectively, U. S. Bank) under the Employee Retirement Income Security Act of 1974 (ERISA), alleging that the defendants violated ERISA’s duties of loyalty and prudence by poorly investing the plan’s assets. They request the repayment of approximately $750 million to the plan in losses suffered due to mismanagement; injunctive relief, including replacement of the plan’s fiduciaries; and attorney’s fees. The District Court dismissed the case, and the Eighth Circuit affirmed on the ground that the plaintiffs lack statutory standing.

Because Thole and Smith have no concrete stake in the lawsuit, they lack Article III standing. See Lujan v. Defenders of Wildlife, 504 U. S. 555, 560–561. Win or lose, they would still receive the exact same monthly benefits they are already entitled to receive. None of the plaintiffs’ arguments suffices to establish Article III standing. First, the plaintiffs rely on a trust analogy in arguing that an ERISA participant has an equitable or property interest in the plan and that injuries to the plan are therefore injuries to the participants. But participants in a defined-benefit plan are not similarly situated to the beneficiaries of a private trust or to participants in a defined contribution plan, and they possess no equitable or property interest in the plan, see Hughes Aircraft Co. v. Jacobson, 525 U. S. 432, 439–441. Second, the plaintiffs cannot assert representative standing based on injuries to the plan where they themselves have not “suffered an injury in fact,” Hollingsworth v. Perry, 570 U. S. 693, 708, or been legally or contractually appointed to represent the plan. Third, the fact that ERISA affords all participants—including defined-benefit plan participants—a cause of action to sue does not satisfy the injury-in-fact requirement here. “Article III standing requires a concrete injury even in the context of a statutory violation.” Spokeo, Inc. v. Robins, 578 U. S. ___, ___. Fourth, the plaintiffs contend that meaningful regulation of plan fiduciaries is possible only if they may sue to target perceived fiduciary misconduct. But this Court has long rejected that argument for Article III standing, see Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 489, and defined-benefit plans are regulated and monitored in multiple ways.

The plaintiffs’ amici assert that defined-benefit plan participants have standing to sue if the plan’s mismanagement was so egregious that it substantially increased the risk that the plan and the employer would fail and be unable to pay the participants’ future benefits. The plaintiffs do not assert that theory of standing here, nor did their complaint allege that level of mismanagement.

Affirmed

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

Concurring: THOMAS, J., filed a concurring opinion, in which GORSUCH, J., joined.

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United States Supreme Court

Case Name: Nidal Khalid Nasrallah v. William P. Barr

Case No.: 18-1432

Focus: Immigration – Removal Proceedings

Under federal immigration law, noncitizens who commit certain crimes are removable from the United States. During removal proceedings, a noncitizen may raise claims under the international Convention Against Torture, known as CAT. If the noncitizen demonstrates that he likely would be tortured if removed to the designated country of removal, then he is entitled to CAT relief and may not be removed to that country (although he still may be removed to other countries).

If the immigration judge orders removal and denies CAT relief, the noncitizen may appeal to the Board of Immigration Appeals. If the Board of Immigration Appeals orders removal and denies CAT relief, the noncitizen may obtain judicial review in a federal court of appeals of both the final order of removal and the CAT order.

In the court of appeals, for cases involving noncitizens who have committed any crime specified in 8 U. S. C. §1252(a)(2)(C), federal law limits the scope of judicial review. Those noncitizens may obtain judicial review of constitutional and legal challenges to the final order of removal, but not of factual challenges to the final order of removal.

Everyone agrees on all of the above. The dispute here concerns the scope of judicial review of CAT orders for those noncitizens who have committed crimes specified in §1252(a)(2)(C). The Government argues that judicial review of a CAT order is analogous to judicial review of a final order of removal. The Government contends, in other words, that the court of appeals may review the noncitizen’s constitutional and legal challenges to a CAT order, but not the noncitizen’s factual challenges to the CAT order. Nasrallah responds that the court of appeals may review the noncitizen’s constitutional, legal, and factual challenges to the CAT order, although Nasrallah acknowledges that judicial review of factual challenges to CAT orders must be highly deferential.

So the narrow question before the Court is whether, in a case involving a noncitizen who committed a crime specified in §1252(a)(2)(C), the court of appeals should review the noncitizen’s factual challenges to the CAT order (i) not at all or (ii) deferentially. Based on the text of the statute, we conclude that the court of appeals should review factual challenges to the CAT order deferentially. We therefore reverse the judgment of the U. S. Court of Appeals for the Eleventh Circuit.

Reversed

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

Concurring:

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