Weekly Case Digests – August 24, 2020 – August 28, 2020

Listen to this article

7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Yong Juan Zhao v. United States of America

Case No.: 19-3071

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

Focus: Damages

This is an appeal from a Federal Tort Claims Act judgment in favor of the plaintiff. When plaintiff Yong Juan “Maggie” Zhao gave birth to her son “S.,” he suffered an avoidable brachial plexus injury. The injury has severely and permanently impaired the function of his right arm. During her pregnancy and S.’s birth, Mrs. Zhao was attended by an obstetrician employed by a federally supported grant clinic in southern Illinois. Because he is considered an employee of the United States Public Health Service under 42 U.S.C. § 233(g), Mrs. Zhao sued the United States for medical malpractice under the Federal Tort Claims Act. The court found after trial that the obstetrician had been negligent and awarded Mrs. Zhao, on behalf of S., $8.3 million. That sum included $2.6 million in lost earnings and $5.5 million in noneconomic damages.

On appeal, the United States does not contest liability or damages awarded for past and future medical expenses. The government appeals only the portions of the damages award that are inherently difficult to quantify. S. was not quite five years old at the time of trial. The United States argues first that the district court’s calculation of S.’s future lost earnings was improperly speculative, given the uncertainties inherent in projecting a five‐year‐old’s career opportunities. The question may have been difficult to answer, but we find no reversible error. The district court took a reasonable approach to estimate the lost earnings award based on data provided in expert testimony. The United States also challenges the award of noneconomic damages as arbitrary and excessive in comparison to similar cases. The district court could have provided a more detailed explanation of its comparative process, but we can follow the court’s reasoning and find no reversible error in this portion of the judgment. We affirm the judgment of the district court.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: United States of America v. Jacqueline Kennedy-Robey

Case No.: 19-2421

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

Focus: Sentencing Guidelines

Jacqueline Kennedy-Robey pleaded guilty to one count of mail fraud in violation of 18 U.S.C. § 1341. The district court imposed an above-guidelines sentence. On appeal, Kennedy-Robey argues that the district court failed to consider either her mental health condition or the more lenient sentences received by defendants convicted of similar crimes. She also argues that the sentence was substantively unreasonable. We disagree and affirm the district court’s judgment.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: James Crawford v. Frank Littlejohn, Deputy Warden, Wabash Valley Correctional Facility

Case No.: 19-1949

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

Focus: Inmate Trust Fund Policy – Unauthorized Financial Transactions  – Reduction of Good Time Credit

A prison disciplinary board in Indiana concluded that James Crawford had participated in an “unauthorized financial transaction” by telling Scott Wolf, a fellow inmate, to send $400 to his mother, Becky Crawford. Wolf sent the check, which Becky Crawford cashed. Wolf told prison officials that the payment covered the cost of drugs that Crawford had supplied.

The prison’s Code B-220 bans possessing materials for, or engaging in, “unauthorized financial transactions”. (Language in Code B-220 has changed recently; we quote the rule in force at the time of the events.) Section IX of the Inmate Trust Fund Policy supplies this definition of unauthorized financial transactions: “attempting or completing financial transactions, including the sending of monies from one offender to another or the sending of monies from the family/friends of one offender to another.” The prison penalized Crawford by the loss of 30 days’ good-time credit. In this proceeding under 28 U.S.C. §2241 a district judge held that the penalty is not supported by evidence and directed Indiana to restore the 30-day credit.

Superintendent v. Hill, 472 U.S. 445 (1985), holds that a prison may discipline an inmate by reducing good-time credit unless the record is “devoid of evidence” (id. at 457). Elsewhere the Court stated the rule as a requirement that “some evidence in the record” (id. at 454) support the penalty. Indiana contends that “some evidence” supports the decision—that, indeed, Wolf’s remittance to Crawford’s mother is undisputed. Only the reason for the payment was contested (Crawford asserts that it was for a car that Wolf’s aunt and Wolf’s daughter were buying), but the reason for the payment is not part of the offense defined by Code B-220.

Crawford contends that the reason must matter; otherwise why did the prison punish him rather than Wolf? That’s a good question, but if we agree with Crawford that the reason matters, some evidence remains: Wolf said during a formal interview that he was paying Crawford for drugs by routing money to Crawford’s mother, and the disciplinary board found that this is true. Wolf did not testify before the board, so his statements are hearsay, but hearsay is “some evidence”. Hearsay is used in federal sentencing all the time. This is the sort of hearsay—a statement against penal interest—that could have been admissible under Fed. R. Evid. 804(b)(3) in proceedings to which the Rules of Evidence apply.

For what it may be worth, we doubt that the state officials have misunderstood the prison’s rules. The definition covers “attempting or completing financial transactions, including” three examples (emphasis added). The examples illustrate some applications. The judge did not explain why he read this definition to cover only the examples, as opposed to the full spectrum of “financial transactions” that the prison has not authorized.

Crawford says that the structure of this definition—a broad term (“financial transactions”) followed by three non-exclusive examples—makes it unconstitutionally vague. We do not agree. The phrase “financial transactions” is broad, but broad differs from inscrutable. The rule is sweeping, not vague. People of common understanding can see what is forbidden.

Reversed

Full Text

7^th Circuit Court of Appeals

Case Name: Victoria Jeffords v. BP Products North America Inc., et al.,

Case No.: 19-1533

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

Focus: Negligence Claim – Duty of Care

Donald Jeffords was a crane operator on a construction project at an oil refinery. One day at work he fell seven feet from the catwalk on the body of a crane and injured his feet and back. He sued the project owner and several of its contractors for negligence. While this lawsuit was pending, Jeffords died, apparently of unrelated causes, so the suit is now being prosecuted by his widow, Victoria Jeffords, as his estate’s administrator. The district court granted the defendants’ motions for summary judgment, finding that none of the defendants whom Jeffords sued owed him a duty of care. We affirm.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Abdullah T. Alkhalidi v. Ron Neal

Case No.: 19-1378

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

Focus: Habeas Corpus

Abdullah Alkhalidi (“Alkhalidi”) was convicted of murder, robbery, and theft. He appealed, claiming that his attorney failed to advise him of a plea offer. The Indiana state court denied relief, holding Alkhalidi’s innocence claim strongly indicated he would not have accepted the plea deal. The state court also held that Indiana requires a defendant to admit a plea deal’s factual basis otherwise the trial court would be prevented from entering the plea. Alkhalidi filed for habeas corpus relief and the district court denied the petition. We affirm.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Justin Luft, et al., v. Tony Evers, Governor of Wisconsin, et al.,

Case No.: 16-3003; 16-3052

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

Focus: Voting Rights – Absentee & In-Person Voting – One Location Rule

Change is a constant in Wisconsin’s rules for holding elections. Two suits, which we have consolidated for decision on appeal, present challenges to more than a dozen provisions that have been enacted or amended since 2011. Although we have tried to treat similar legal questions together and otherwise simplify the exposition, a brief introduction may help the reader.

Wisconsin used to rely on special registration deputies, who registered voters at places such as high schools. Municipalities could require landlords to distribute registration forms to new tenants. The state replaced these mechanisms with an electronic registration system. 2011 Wis. Acts 23, 240; 2013 Wis. Act 76; 2015 Wis. Act 261. Persons who want to register now must send proof of residence in either electronic or hard-copy format. 2013 Wis. Act 182, as elaborated in a ruling by the Government Accountability Board. (The Board has since been replaced by the Wisconsin Elections Commission, whose members are defendants.) Students who want to prove residence using an educational institution’s dormitory list may do so only if the list contains citizenship information. 2011 Wis. Act 23. And to vote for an office other than President or Vice President, voters must have been residents for at least 28 days (instead of 10 days, as before). Ibid.

Voters may cast absentee ballots. A ballot may be picked up in person, or the state will mail one, but email and fax can be used to obtain a ballot in only a few circumstances. 2011 Wis. Act 75. Wisconsin will reject or return an absentee ballot for spoilage, damage, or defective certification. 2011 Wis. Act 227. Such irregularities are visible without opening the ballot; thus they may be remedied before officials feed the ballots through counting machines. Wisconsin also has a variant of early voting: voters may cast their absentee ballots in person. The number of days, and hours per day, allowed for this procedure have fluctuated. See 2011 Wis. Act 23; 2013 Wis. Act 146. Currently the state allows in-person absentee voting (which is to say, early voting) from 14 days before the election through the Sunday preceding it, without any restriction on the number of hours per day that a municipality may choose to keep its offices open. 2017 Wis. Act 369 §1K. Municipalities may offer in-person absentee voting at multiple locations. Id. at §1JS.

At the polls, voting a straight ticket is no longer an option. 2011 Wis. Act 23. Observers must remain between three and eight feet from the places where voters announce their presence and register to vote. 2013 Wis. Act 177. Photographic identification is necessary for in-person voting. 2011 Wis. Act 23. Students may use college-issued credentials, but only before an ID’s expiration date. Wis. Stat. §5.02(6m)(f). People who lack the documents required to receive a photo ID may petition the state for assistance and a temporary receipt. 2017 Wis. Act 369 §§ 91–95.  Because the right to vote is personal, the state must accommodate voters who cannot obtain qualifying photo IDs with reasonable effort.

On remand, one district judge ordered Wisconsin to implement an “affidavit option” that excuses the requirement for photo ID when any voter states that obtaining one requires too much effort. 196 F. Supp. 3d 893 (E.D. Wis. 2016). That injunction was promptly stayed, 2016 U.S. App. LEXIS 14917 (7th Cir. Aug. 10, 2016), and the court declined to hear the dispute en banc, though we issued an opinion holding the state to certain representations it made about enforcement. Frank v. Walker, 835 F.3d 649 (7th Cir. 2016) (en banc) (Frank III). Around the same time a different district court decided that many of Wisconsin’s other electoral changes violate either the Constitution or the Voting Rights Act. One Wisconsin Institute, Inc. v. Thomsen, 198 F. Supp. 3d 896 (W.D. Wis. 2016). Everyone has appealed from almost every aspect of both district courts’ decisions, and we consolidated the appeals.

This is complex litigation, and to keep this opinion manageable we have omitted some lines of argument and abbreviated the treatment of others. A few contentions pursued in the district court have been dropped on appeal. We have considered all that remain, and we agree with the district courts’ handling of any issues that we have not mentioned. We affirm in part, reverse in part, and vacate in part, the judgments of the Western District. We reverse the district court’s finding that the adjustments to the number of days and hours for in-person absentee voting, the state’s durational residence requirement, and the prohibition on sending absentee ballots by email or fax violate the Constitution, the Voting Rights Act, or both. We vacate the district court’s orders related to the one-location rule and the ID petition process and remand both, the former with instructions to dismiss as moot and the latter for further proceedings. We affirm the district court’s judgment that Wisconsin’s studentID provision is invalid and its judgment concerning citizenship on educational institution’s dorm lists, though on alternate grounds for each. We otherwise affirm the district court’s judgment. We reverse the Eastern District’s injunction requiring Wisconsin to implement an affidavit option.

We suggest that all of these cases be assigned on remand to a single judge. The Chief Judge of the Seventh Circuit has designated the judges of each district to sit in the other. Using that cross-designation to place all of this litigation before a single judge will eliminate the sort of inconsistent treatment that has unfortunately occurred in the photo-ID parts of the multiple suits.

Affirmed in part. Reversed in part. Vacated in part.

Full Text

7^th Circuit Court of Appeals

Case Name: Christine Bryant v. Compass Group USA, Inc.,

Case No.: 20-1443

Officials: DIANE P. WOOD, Chief Judge, KENNETH F. RIPPLE, Circuit Judge, ILANA DIAMOND ROVNER, Circuit Judge.

Focus: Petition for Rehearing En Banc

Defendant‐Appellant Compass Group, Inc., filed a petition for rehearing and rehearing en banc on May 19, 2020. No judge in regular active service has requested a vote on the petition for rehearing en banc, and all of the judges on the panel have voted to deny rehearing, but to amend the opinion as follows, on page 16 of the slip opinion, to add two new sentences after the first sentence under heading II.D.: “Bryant’s claim under section 15(a) is a separate matter. Importantly, Bryant alleged only a claim under the provision of that section requiring development of a “written policy, made available to the public, establishing a retention schedule and guidelines for permanently destroying biometric identifiers and biometric information,” not under the provision requiring compliance with the established retention schedule and destruction guidelines. Our analysis is thus limited to the theory she invoked. Section 15(a) obligates private entities … .” With this amendment, the petition for rehearing and rehearing en banc is DENIED.

Denied

Full Text

7^th Circuit Court of Appeals

Case Name: A&C Construction & Installation, Co., WLL, v. Zurich American Insurance Company, et al.,

Case No.: 19-3325

Officials: FLAUM, SCUDDER, and ST. EVE, Circuit Judges.

Focus: Miller Act Violation – Subcontractors – Federal Government Construction

The Miller Act, 40 U.S.C. § 3131 et seq., seeks to protect subcontractors against nonpayment for work performed on federal government construction projects by requiring the prime contractor to provide a payment bond on which the subcontractor can then make a claim for payment. A&C Construction & Installation, Co. WLL was a subcontractor on an air base project in Qatar and claims that it was not paid approximately $8.5 million for work it performed on the project, so it filed this action against the prime contractor’s two sureties, Zurich American Insurance Company and The Insurance Company of the State of Pennsylvania. As strict preconditions to payment, however, the Miller Act requires that subcontractors provide a notice of nonpayment within ninety days after the last day of work performed and then file suit within one year of the last date of work. The district court found that A&C missed both deadlines and granted summary judgment in favor of the sureties. Because A&C did not meet the Miller Act’s notice requirement, we affirm the judgment.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: United States of America v. Cordarrell Wilson

Case No.: 19-2503

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

Focus: Unlawful-stop Claim – Suppression of Evidence

Defendant Cordarrell Wilson was convicted of being a felon in possession of a firearm. Wilson claims the gun found on his person should have been suppressed because the police subjected him to an unlawful Terry stop. We disagree and affirm his conviction.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: United States of America v. Robert M. Triggs

Case No.: 19-1704

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

Focus: Plea Withdrawal – Plain Error

Robert Triggs was indicted for unlawfully possessing a firearm in violation of 18 U.S.C. § 922(g)(9), which prohibits firearm possession by persons convicted of a misdemeanor crime of domestic violence. The predicate conviction was more than ten years old, so Triggs mounted an as-applied Second Amendment challenge to the indictment. When that argument failed, he conditionally pleaded guilty, reserving his right to appeal the Second Amendment ruling.

Soon after he filed his notice of appeal, the Supreme Court issued its decision in Rehaif v. United States, 139 S. Ct. 2191 (2019), clarifying the elements of a § 922(g) violation. The Court held that in a § 922(g) prosecution, the government must prove that the defendant “knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm.” Id. at 2200 (emphasis added). The second knowledge element is new; no one was aware of it when Triggs pleaded guilty. So in addition to his Second Amendment argument, Triggs raised a Rehaif claim and seeks to withdraw his plea.

The plain-error standard governs our review of the Rehaif issue. The government agrees that the error is plain. The disputed question is whether it was prejudicial, which in this context requires Triggs to establish a reasonable probability that he would not have pleaded guilty if he had known the government had to prove the Rehaif knowledge element. That, in turn, depends on whether Triggs can plausibly argue that he did not know he belonged to the relevant category of persons disqualified from firearm possession— more specifically, that he did not know his ten-year-old conviction was a “misdemeanor crime of domestic violence” as that phrase is defined for purposes of § 922(g)(9).

Triggs has made the required showing to withdraw his plea. In contrast to some of the other categories of prohibited persons listed in § 922(g)—notably, felons—the statutory definition of “misdemeanor crime of domestic violence” is quite complicated, giving Triggs a plausible defense. We vacate and remand for further proceedings without reaching the constitutional question.

Vacated and remanded

Full Text

7^th Circuit Court of Appeals

Case Name: Romuald Tyburski v. City of Chicago

Case No.: 18-3000

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

Focus: ADEA Violation – Sufficiency of Evidence

In 2014, Romuald (“Roman”) Tyburski, then age seventy-four, applied for a promotion with his employer, the City of Chicago’s Department of Water Management, but the City rejected his application. Tyburski sued, claiming that the City denied him the promotion because of his age in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621–634. He also brought a hostile work environment claim under the ADEA regarding harassment he allegedly experienced at two Department of Water Management facilities: Central Park Pumping Station (“Central Park”) and Jardine Water Purification Plant (“Jardine”). The district court ultimately granted summary judgment in favor of the City.

Tyburski has not supplied evidence showing that his age, rather than his failing score on the requisite verbal exam, was the reason he missed out on the desired promotion. Furthermore, assuming a hostile work environment claim is cognizable under the ADEA, Tyburski failed to present sufficient evidence for a factfinder to conclude that the purported harassment he experienced was severe or pervasive. And Tyburski failed to exhaust this claim regarding conduct that allegedly occurred at Jardine, as he did not file a charge with the Equal Employment Opportunity Commission (“EEOC”) reporting that conduct. Summary judgment was therefore appropriate, and we affirm.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Wesley Ira Purkey v. United States of America, et al.,

Case No.: 19-3318

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

Focus: Ineffective Assistance of Counsel and Collateral Review

Accuracy and finality are both central goals of the judicial system, but there is an inherent conflict between them. Suppose later information comes to light in a criminal case, and that information reveals potential factual or constitutional errors in the original proceeding. Do we privilege accuracy and re-open the case, or do we privilege finality and leave the errors unexamined? And if we do permit a second look, is a third or fourth also proper? The case before us presents just such a question, and the stakes could not be higher. We must decide whether Wesley Purkey, who sits on federal death row at the U.S. Penitentiary in Terre Haute, Indiana, has run out of opportunities to challenge his conviction and death sentence for kidnapping and murder. Purkey urges that his proceedings up to now have been undermined by ineffective assistance of counsel, first at the trial level, and then on collateral review. The United States argues that Purkey already has had an opportunity to challenge the effectiveness of trial counsel and, under the governing statutes, he has come to the end of the line. The district court ruled for the government. We conclude that this is not one of those rare cases in which the defendant is entitled to another day in court, and so we affirm the district court’s judgment.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: John H. Balsewicz v. Jonathan S. Pawlyk, et al.,

Case No.: 19-3062

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

Focus: 8^th Amendment Violation – Issue of Material Fact

When a prison official knows that an inmate faces a substantial risk of serious harm, the Eighth Amendment requires that official to take reasonable measures to abate the risk. Inmate John “Melissa” Balsewicz reported to a prison guard that while she was in the shower house, another inmate threatened to beat her up. The guard, Sergeant Jonathan Pawlyk, took no action in response to Balsewicz’s report; and two days later, the inmate who had threatened Balsewicz punched her in the head repeatedly, causing her to fall unconscious.

Balsewicz filed a claim against Sergeant Pawlyk and other prison officials under the Civil Rights Act of 1871, Rev. Stat. § 1979, as amended, 42 U.S.C. § 1983. She alleged that Sergeant Pawlyk failed to take reasonable measures to abate a known, substantial risk of serious harm to her, and thus violated one of her Eighth Amendment rights. Granting summary judgment to Sergeant Pawlyk, the district court reasoned that the threat Balsewicz reported to the guard could only be understood as expiring once the inmates left the shower house, so no factfinder could conclude that Sergeant Pawlyk knew Balsewicz faced an ongoing risk of serious harm.

Because a reasonable juror could conclude otherwise based on the submitted evidence, and because Sergeant Pawlyk is not entitled to qualified immunity, we reverse.

Reversed and remanded

Full Text

WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: Skylar B. Ewing v. State Automobile Insurance Company, et al.,

Case No.: 2018AP2265

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

Focus: Personal Jurisdiction – Service of Process

Skyler Ewing appeals a summary judgment dismissing defendant Jonathan Davis from Ewing’s personal injury action for lack of personal jurisdiction over Davis. Ewing argues he accomplished personal service because the undisputed facts show his process server attended a baseball game in California in which Davis was to play. Prior to the game, as Davis was exiting the field down the right field line to retrieve items from the clubhouse, the process server tossed a manilla envelope containing the summons and complaint down at Davis from approximately twenty feet above him in the fan seating area. As the server did so, he yelled, “You have been served!”

We agree with the circuit court that this attempt at personal service was insufficient. Process papers should be physically placed in the hands of the party to be served, if possible. If a person refuses to accept service after the process server identifies the documents and attempts service in a “civil and proper manner,” the documents may be deposited in an appropriate place in the presence of the party or in a place where they will most likely come into his or her possession. See Borden v. Borden, 63 Wis. 374, 377, 23 N.W. 573 (1885). Because personal service was not accomplished upon Davis, the court lacked personal jurisdiction over Davis, and the complaint against him was properly dismissed. We affirm.

Full Text

WI Court of Appeals – District III

Case Name: Skylar B. Ewing v. State Automobile Insurance Company, et al.,

Case No.: 2018AP2265

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

Focus: Order Correcting Opinion

PLEASE TAKE NOTICE that corrections were made to paragraph 1 in the above-captioned opinion which was released on June 30, 2020. A corrected electronic version in its entirety is available on the court’s website at www.wicourts.gov.

Full Text

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Dawn J. Levanduski

Case No.: 2019AP1144-CR

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

Focus: OWI – Suppression of Evidence – Blood Test

The State appeals from an order of the circuit court suppressing evidence from a blood draw of Dawn Levanduski following her arrest for operating a motor vehicle while intoxicated (OWI), second offense. The court granted Levanduski’s suppression motion on the basis that her consent to the draw was not voluntary because the arresting officer, as part of reading the Informing the Accused form to her, informed her that if she refused to submit to the blood draw, “the fact that [she] refused testing can be used against [her] in court,” which information the court concluded and Levanduski insists was a misrepresentation of the law. Because we conclude that the Informing the Accused form, and hence the officer, did not misrepresent the law to Levanduski, we also conclude that her consent to the blood draw was voluntary. With that, we determine that the court erred in granting her suppression motion, and we reverse and remand for further proceedings.

Recommended for Publication

Full Text

WI Court of Appeals – District IV

Case Name: City of Fort Atkinson v. Katie J. Provenzano

Case No.: 2019AP965

Officials: NASHOLD, J.

Focus: OWI – Peremptory Challenge

Katie Provenzano appeals a judgment of conviction for operating a motor vehicle with a prohibited alcohol concentration. Provenzano argues that her judgment of conviction should be vacated and a new trial granted on the ground that she was denied her right to peremptory strikes under WIS. STAT. § 345.43(3). I affirm.

Full Text

WI Supreme Court Digests

WI Supreme Court

Case Name: State of Wisconsin v. Courtney C. Brown

Case No.: 2020 WI 63

Focus: Unlawful-stop Claim – Reasonable Suspicion

Courtney Brown failed to fully stop his car at a stop sign, prompting a police officer to initiate a traffic stop. Brown contends the officer impermissibly extended the stop after writing a ticket for the traffic violation by asking Brown to exit the car, inquiring about anything concerning in Brown’s possession, and requesting consent to search him. Brown seeks suppression of the cocaine the officer found in Brown’s possession when he searched him, claiming that in the absence of reasonable suspicion, the Fourth Amendment prohibited the officer’s actions after he wrote the traffic ticket, which Brown argues should have ended the mission of the stop. We conclude the Constitution permits law enforcement to ask a driver to exit the vehicle, inquire about the presence of weapons, and request consent to search the driver, all of which are negligibly burdensome actions relating to officer safety, a well-established part of a traffic stop’s mission. We affirm the court of appeals.

Affirmed

Concur: REBECCA GRASSL BRADLEY, J., filed a concurring opinion in which KELLY, J., joined.

Dissent: DALLET, J., filed a dissenting opinion.
Full Text

WI Supreme Court

Case Name: State of Wisconsin v. Timothy E. Dobbs

Case No.: 2020 WI 64

Focus: Abuse of Discretion – Expert Testimony

The petitioner, Timothy E. Dobbs, seeks review of the court of appeals’ decision affirming his judgment of conviction for homicide by intoxicated use of a vehicle. Dobbs raises two issues on appeal. First, Dobbs asserts that the circuit court improperly excluded the expert testimony of Dr. Lawrence White. Second, Dobbs claims that the circuit court erred in denying his motion to suppress statements that he made to law enforcement because he was subject to custodial interrogation and not read the Miranda warnings, or, in the alternative, because his statements were not voluntarily made.

We conclude that the circuit court properly exercised its discretion when it excluded Dr. White’s exposition testimony for a lack of fit with the facts of Dobbs’s case. Additionally, although we determine that several of Dobbs’s statements should have been suppressed because he was subject to custodial interrogation and was not read the Miranda warnings, we conclude that the error was harmless. We further conclude that all of Dobbs’s statements were voluntary. We therefore affirm the decision of the court of appeals.

Affirmed

Concur: ZIEGLER, J., filed a concurring opinion, in which ROGGENSACK, C.J., and HAGEDORN, J., joined. KELLY, J., filed a concurring opinion, in which REBECCA GRASSL BRADLEY, J., joined.

Dissent:
Full Text

Supreme Court Digests

United States Supreme Court

Case Name: Seila Law LLC, v. Consumer Financial Protection Bureau

Case No.: 19-7

Focus: Consumer Financial Protection Bureau – Separation of Powers

In the wake of the 2008 financial crisis, Congress established the Consumer Financial Protection Bureau (CFPB), an independent regulatory agency tasked with ensuring that consumer debt products are safe and transparent. See Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank), 124 Stat. 1376. Congress transferred the administration of 18 existing federal statutes to the CFPB, including the Fair Credit Reporting Act, the Fair Debt Collection Practices Act, and the Truth in Lending Act; and Congress enacted a new prohibition on unfair and deceptive practices in the consumer-finance sector. 12 U. S. C. §5536(a)(1)(B). In doing so, Congress gave the CFPB extensive rulemaking, enforcement, and adjudicatory powers, including the authority to conduct investigations, issue subpoenas and civil investigative demands, initiate administrative adjudications, prosecute civil actions in federal court, and issue binding decisions in administrative proceedings. The CFPB may seek restitution, disgorgement, injunctive relief, and significant civil penalties for violations of the 19 federal statutes under its purview. So far, the agency has obtained over $11 billion in relief for more than 25 million consumers. Unlike traditional independent agencies headed by multimember boards or commissions, the CFPB is led by a single Director, §5491(b)(1), who is appointed by the President with the advice and consent of the Senate, §5491(b)(2), for a five-year term, during which the President may remove the Director only for “inefficiency, neglect of duty, or malfeasance in office,” §§5491(c)(1), (3). The CFPB receives its funding outside the annual appropriations process from the Federal Reserve, which is itself funded outside the appropriations process through bank assessments.

In 2017, the CFPB issued a civil investigative demand to Seila Law LLC, a California-based law firm that provides debt-related legal services to clients. The civil investigative demand (essentially a subpoena) sought information and documents related to the firm’s business practices. Seila Law asked the CFPB to set aside the demand on the ground that the agency’s leadership by a single Director removable only for cause violated the separation of powers. When the CFPB declined, Seila Law refused to comply with the demand, and the CFPB filed a petition to enforce the demand in District Court. Seila Law renewed its claim that the CFPB’s structure violated the separation of powers, but the District Court disagreed and ordered Seila Law to comply with the demand. The Ninth Circuit affirmed, concluding that Seila Law’s challenge was foreclosed by Humphrey’s Executor v. United States, 295 U. S. 602, and Morrison v. Olson, 487 U. S. 654.

Vacated and remanded

Dissenting: THOMAS, J., filed an opinion concurring in part and dissenting in part, in which GORSUCH, J., joined. KAGAN, J., filed an opinion concurring in the judgment with respect to severability and dissenting in part, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined.

Concurring: THOMAS, J., filed an opinion concurring in part and dissenting in part, in which GORSUCH, J., joined. KAGAN, J., filed an opinion concurring in the judgment with respect to severability and dissenting in part.

Full Text

United States Supreme Court

Case Name: June Medical Services L.L.C., et al., v. Stephen Russo

Case No.: 18-1323; 18-1460

Focus: Injunctive Relief – Louisiana’s Act 620

Louisiana’s Act 620, which is almost word-for-word identical to the Texas “admitting privileges” law at issue in Whole Woman’s Health v. Hellerstedt, 579 U. S. ___, requires any doctor who performs abortions to hold “active admitting privileges at a hospital . . . located not further than thirty miles from the location at which the abortion is performed or induced,” and defines “active admitting privileges” as being “a member in good standing” of the hospital’s “medical staff . . . with the ability to admit a patient and to provide diagnostic and surgical services to such patient.”

In these consolidated cases, five abortion clinics and four abortion providers challenged Act 620 before it was to take effect, alleging that it was unconstitutional because (among other things) it imposed an undue burden on the right of their patients to obtain an abortion. (The plaintiff providers and two additional doctors are referred to as Does 1 through 6.) The plaintiffs asked for a temporary restraining order (TRO), followed by a preliminary injunction to prevent the law from taking effect. The defendant (State) opposed the TRO request but also urged the court not to delay ruling on the preliminary injunction motion, asserting that there was no doubt about the physicians’ standing. Rather than staying the Act’s effective date, the District Court provisionally forbade the State to enforce the Act’s penalties, while directing the plaintiff doctors to continue to seek privileges and to keep the court apprised of their progress. Several months later, after a 6-day bench trial, the District Court declared Act 620 unconstitutional on its face and preliminarily enjoined its enforcement. On remand in light of Whole Woman’s Health, the District Court ruled favorably on the plaintiffs’ request for a permanent injunction on the basis of the record previously developed, finding, among other things, that the law offers no significant health benefit; that conditions on admitting privileges common to hospitals throughout the State have made and will continue to make it impossible for abortion providers to obtain conforming privileges for reasons that have nothing to do with the State’s asserted interests in promoting women’s health and safety; and that this inability places a substantial obstacle in the path of women seeking an abortion. The court concluded that the law imposes an undue burden and is thus unconstitutional. The Fifth Circuit reversed, agreeing with the District Court’s interpretation of the standards that apply to abortion regulations, but disagreeing with nearly every one of the District Court’s factual findings.

Reversed

Dissenting: THOMAS, J., filed a dissenting opinion. ALITO, J., filed a dissenting opinion, in which GORSUCH, J., joined, in which THOMAS, J., joined except as to Parts III–C and IV–F, and in which KAVANAUGH, J., joined as to Parts I, II, and III. GORSUCH, J., and KAVANAUGH, J., filed dissenting opinions.

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

Full Text

United States Supreme Court

Case Name: Agency for International Development, et al., v. Alliance for Open Society International, Inc., et al.,

Case No.: 19-177

Focus: 1^st Amendment Violation – United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 – Policy Requirement

In the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003, as relevant here, Congress limited the funding of American and foreign nongovernmental organizations to those with “a policy explicitly opposing prostitution and sex trafficking.” 22 U. S. C. §7631(f). In 2013, that Policy Requirement, as it is known, was held to be an unconstitutional restraint on free speech when applied to American organizations. Agency for Int’l Development v. Alliance for Open Society Int’l, Inc., 570 U. S. 205. Those American organizations now challenge the requirement’s constitutionality when applied to their legally distinct foreign affiliates. The District Court held that the Government was prohibited from enforcing the requirement against the foreign affiliates, and the Second Circuit affirmed.

Because plaintiffs’ foreign affiliates possess no First Amendment rights, applying the Policy Requirement to them is not unconstitutional. Two bedrock legal principles lead to this conclusion. As a matter of American constitutional law, foreign citizens outside U. S. territory do not possess rights under the U. S. Constitution. See, e.g., Boumediene v. Bush, 553 U. S. 723, 770–771. And as a matter of American corporate law, separately incorporated organizations are separate legal units with distinct legal rights and obligations. See, e.g., Dole Food Co. v. Patrickson, 538 U. S. 468, 474–475. That conclusion corresponds to Congress’s historical practice of conditioning funding to foreign organizations, which helps ensure that U. S. foreign aid serves U. S. interests.

Plaintiffs’ counterarguments are unpersuasive. First, they claim that because a foreign affiliate’s policy statement may be attributed to them, American organizations themselves possess a First Amendment right against the Policy Requirement’s imposition on their foreign affiliates. First Amendment cases involving speech misattribution between formally distinct speakers, see, e.g., Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 574– 575, however, are premised on something missing here: Government compulsion to associate with another entity. Even protecting the free speech rights of only those foreign organizations that are closely identified with American organizations would deviate from the fundamental principle that foreign organizations operating abroad do not possess rights under the U. S. Constitution and enmesh the courts in difficult line-drawing exercises. Second, plaintiffs assert that the Court’s 2013 decision encompassed both American organizations and their foreign affiliates. That decision did not facially invalidate the Act’s funding condition, suggest that the First Amendment requires the Government to exempt plaintiffs’ foreign affiliates or other foreign organizations from the Policy Requirement, or purport to override longstanding constitutional law and corporate law principles. Pp. 3– 9.

Reversed

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

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

Full Text

United States Supreme Court

Case Name: Kendra Espinoza, et al., Montana Department of Revenue, et al.,

Case No.: 18-1195

Focus: Free Exercise Clause Violation – No-aid Provision

The Montana Legislature established a program to provide tuition assistance to parents who send their children to private schools. The program grants a tax credit to anyone who donates to certain organizations that in turn award scholarships to selected students attending such schools. When petitioners sought to use the scholarships at a religious school, the Montana Supreme Court struck down the program. The Court relied on the “no-aid” provision of the State Constitution, which prohibits any aid to a school controlled by a “church, sect, or denomination.” The question presented is whether the Free Exercise Clause of the United States Constitution barred that application of the no-aid provision.

Here, the application of Montana’s no-aid provision excludes religious schools from public benefits solely because of religious status. As a result, strict scrutiny applies. Because the Free Exercise Clause barred the application of the no-aid provision here, the Montana Supreme Court had no authority to invalidate the program on the basis of that provision. The Department argues that the invalidation of the entire program prevented a free exercise violation, but the Department overlooks the Montana Supreme Court’s threshold error of federal law. Had the Montana Supreme Court recognized that the application of the no-aid provision was barred by the Free Exercise Clause, the Court would have had no basis for invalidating the program. The Court was obligated to disregard the no-aid provision and decide this case consistent with the Federal Constitution.

Reversed and remanded

Dissenting: GINSBURG, J., filed a dissenting opinion, in which KAGAN, J., joined. BREYER, J., filed a dissenting opinion, in which KAGAN, J., joined as to Part I. SOTOMAYOR, J., filed a dissenting opinion.

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

Full Text

United States Supreme Court

Case Name: United States Patent and Trademark Office, et al., v. Booking.com B.V.

Case No.: 19-46

Focus: Trademark Registration

This case concerns eligibility for federal trademark registration. Respondent Booking.com, an enterprise that maintains a travel-reservation website by the same name, sought to register the mark “Booking.com.” Concluding that “Booking.com” is a generic name for online hotel-reservation services, the U. S. Patent and Trademark Office (PTO) refused registration. A generic name—the name of a class of products or services—is ineligible for federal trademark registration. The word “booking,” the parties do not dispute, is generic for hotel-reservation services. “Booking.com” must also be generic, the PTO maintains, under an encompassing rule the PTO currently urges us to adopt: The combination of a generic word and “.com” is generic.

In accord with the first- and second-instance judgments in this case, we reject the PTO’s sweeping rule. A term styled “generic.com” is a generic name for a class of goods or services only if the term has that meaning to consumers. Consumers, according to lower court determinations uncontested here by the PTO, do not perceive the term “Booking.com” to signify online hotel-reservation services as a class. In circumstances like those this case presents, a “generic.com” term is not generic and can be eligible for federal trademark registration.

Affirmed

Dissenting: BREYER, J., filed a dissenting opinion.

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

Full Text