Weekly Case Digests – August 31, 2020 – September, 4 2020

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Kiera S. Cherry, et al., v. City of Chicago, Illinois

Case No.: 19-1534; 19-1558

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

Focus: Bankruptcy – Chapter 13 Payment Plan

This is the third—and we hope final—decision in a series arising from the efforts of debtors in Chapter 13 bankruptcy proceedings to avoid or defer paying parking and other vehicular fines. The first decision, In re Steenes, 918 F.3d 554 (7th Cir. 2019) (Steenes I), interprets 11 U.S.C. §1327(b), which provides: Except as otherwise provided in the plan or the order confirming the plan, the confirmation of a plan vests all of the property of the estate in the debtor.

The Bankruptcy Court for the Northern District of Illinois adopted a form confirmation order for Chapter 13 plans that retained all property in the estate, notwithstanding this statutory presumption. Because fines for parking and other vehicular offenses in Chicago are assessed against the car’s owner, keeping cars in the estates meant that the automatic stay of 11 U.S.C. §362 prevented the City from using collection devices such as towing or booting. More: because the plans did not list fines as payable debts, the confirmation orders overrode any obligation to pay them.

Steenes I holds that this approach conflicts with §1327(b). We recognized that judges have discretion to keep property in an estate but added that “the exercise of all judicial discretion requires a good reason.” 918 F.3d at 557. Debtors may need cars but also must pay the cost of their maintenance— insurance, repairs, gasoline, and parking, among other things. Using the bankruptcy process to enable debtors to operate cars while avoiding the costs that others must pay is not appropriate. We wrapped up: A case-specific order, supported by good case-specific reasons, would be consistent with §1327(b), but none was entered in any of these cases.

Cherry reminds us that a bankruptcy court must confirm any plan that satisfies 11 U.S.C. §1325(a). Because that subsection does not address whether the estate holds assets such as cars, Cherry contends that it cannot matter why a given debtor checks the box. Yet §1325(a)(1) tells us that a court must confirm a plan if it “complies with the provisions of this chapter and with the other applicable provisions of this title”. Section 1327(b) is one of those provisions. It need not be mentioned separately in §1325(a). A bankruptcy court may confirm a plan that holds property in the estate only after finding good case-specific reasons for that action. Because the bankruptcy court approved these plans without finding that such reasons exist, its orders are REVERSED.

Reversed

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7^th Circuit Court of Appeals

Case Name: Gregory Williams v. Leonta Jackson

Case No.: 18-2631

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

Focus: Ineffective Assistance of Counsel

Gregory Williams appeals the denial of his application for federal habeas corpus relief following convictions in Illinois state court in two separate cases for raping two women—offenses that resulted in sentences totaling 66 years’ imprisonment. Williams contends that his defense attorney violated his Sixth Amendment right to the effective assistance of counsel by not only advising him to reject a 41-year plea offer, but also failing to inform him of his maximum sentencing exposure if he proceeded to trial in both cases and lost. An Illinois court rejected these claims, concluding that Williams failed to provide any information pertinent to one of the two cases that gave rise to the 41-year plea offer. Without knowing anything about that case, the Illinois court reasoned, there was no way to assess defense counsel’s performance and thus no way to conclude that Williams received ineffective assistance. Finding the Illinois court’s conclusion reasonable, the district court denied federal habeas relief. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Joseph Wilborn v. Alex Jones

Case No.: 18-1507

Officials: SYKES, Chief Judge, and BAUER and EASTERBROOK, Circuit Judges.

Focus: Ineffective Assistance of Counsel

An Illinois jury convicted Joseph Wilborn for the murder of a rival gang member in Chicago. In opening statements, Wilborn’s defense attorney told the jury it would hear from his codefendant, Cedrick Jenkins, identifying him as the actual shooter. During the trial, Jenkins indicated his testimony would no longer be favorable to Wilborn. Defense counsel, with Wilborn’s approval, did not call Jenkins to the stand. Wilborn filed for habeas corpus relief, alleging ineffective assistance of counsel. The district court denied his petition and he appealed. We consider whether trial counsel performed deficiently and caused cognizable prejudice when he told the jury in opening statements that Wilborn’s codefendant would testify but then declined to call Jenkins as a witness. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Rashad Rae Robinson

Case No.: 19-2441

Officials: ROVNER, WOOD and BARRETT, Circuit Judges.

Focus: Sentencing Guidelines

Rashad Rae Robinson pled guilty to a conspiracy to distribute methamphetamine after he was caught in a controlled buy. The only question we face in this appeal is, “In his plea, how much methamphetamine did he admit to selling?” And, of course, this question is only relevant because Robinson contends his prison sentence is too long. Robinson claims on appeal that although the government indicted him for a participating in a conspiracy involving 500 grams or more of methamphetamine, he only pled guilty to a conspiracy involving a lesser or unspecified amount. The facts indicate otherwise and we affirm the district court’s holding.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Monwell Douglas v. Faith Reeves

Case No.: 18-2588

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

Focus: 1^st Amendment Violation

In this suit under 42 U.S.C. § 1983, plaintiff Monwell Douglas, an Indiana prisoner, claims that defendant Faith Reeves, his casework manager, retaliated against him for activity protected by the First Amendment. Douglas asserts that after he successfully appealed a prison disciplinary sanction, Reeves punished him for taking the appeal by refusing to restore benefits he had lost as a result of discipline. The district court granted summary judgment to Reeves. We affirm because no reasonable jury could conclude that Reeves inflicted deprivations on Douglas likely to deter a person of ordinary firmness from engaging in First Amendment activity.

Affirmed

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7^th Circuit Court of Appeals

Case Name: William Morgan, et al., v. Jesse White, Secretary of State of Illinois, et al.,

Case No.: 20-1801

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

Focus: Abuse of Discretion – Preliminary Injunction

Illinois permits voters to place initiatives and referenda on both local and statewide ballots, but it also requires proponents to collect enough signatures to show that each proposal is likely to have a decent amount of support. The state allows 18 months for proponents to collect signatures. This year that period ended for the State of Illinois on May 3, 2020 and will end for the City of Evanston on August 3. Seven plaintiffs filed this suit under 42 U.S.C. §1983 contending that the state’s requirements are too onerous, and hence unconstitutional, given the social-distancing requirements adopted by the Governor of Illinois in light of the COVID-19 pandemic. A district judge expressed skepticism that any of the plaintiffs has standing but found it unnecessary to resolve that question because she denied relief on other grounds. 2020 U.S. Dist. LEXIS 86618 (N.D. Ill. May 18, 2020). Plaintiffs have appealed. We expedited the briefing, and all litigants have agreed to waive oral argument to facilitate a faster decision.

The district court’s approach, sometimes called hypothetical standing, was disapproved by the Supreme Court in Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998). But because at least one plaintiff, William Morgan, has standing, the district court had jurisdiction. Morgan began his petition campaign (he seeks to amend the state’s constitution) before filing suit. Relief such as reducing the number of signatures required, permitting electronic rather than physical signatures, and extending deadlines would materially improve his chances. Other plaintiffs also want to amend the state’s constitution, and one proposes a change that would affect Evanston alone. Federal judges routinely adjudicate suits filed by persons who have encountered difficulty obtaining the signatures required to put candidates’ names or substantive proposals on the ballot.

This is as far as plaintiffs get, however. District judges have discretion when weighing the considerations relevant to requests for preliminary relief. See, e.g., Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008). One important question, when a plaintiff seeks emergency relief, is whether the plaintiff has brought the emergency on himself. The district judge concluded that Morgan had done so. During most of the time available to seek signatures, Morgan did absolutely nothing. He did not evince any interest in the subject until early April 2020, several weeks after the Governor began to issue orders requiring social distancing. The other plaintiffs did not do anything of substance until the suit was on file. Plaintiffs had plenty of time to gather signatures before the pandemic began. That’s a good reason to conclude that they are not entitled to emergency relief.

We add that plaintiffs also have not established that the Governor’s orders limit their speech. The orders concern conduct (social distancing), not what anyone may write or say. Orders regulating conduct often have incidental effects on speech, but this does not require courts to treat them as if they were regulations of speech. See, e.g., Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984). Plaintiffs do not question the propriety of those orders. Cf. Jacobson v. Massachusetts, 197 U.S. 11 (1905); Elim Romanian Pentecostal Church v. Pritzker, No. 20-1811 (7th Cir. June 16, 2020). Although the orders surely make it hard to round up signatures, so would the reluctance of many people to approach strangers during a pandemic.

One more consideration bears emphasis. The federal Constitution does not require any state or local government to put referenda or initiatives on the ballot. That is wholly a matter of state law. See, e.g., Jones v. Markiewicz-Qualkinbush, 892 F.3d 935 (7th Cir. 2018). If we understand the Governor’s orders, coupled with the signature requirements, as equivalent to a decision to skip all referenda for the 2020 election cycle, there is no federal problem. Illinois may decide for itself whether a pandemic is a good time to be soliciting signatures on the streets in order to add referenda to a ballot.

The order denying the motion for a preliminary injunction is affirmed. The plaintiffs remain free to contend to the district court that a permanent injunction would be justified if social-distancing rules are indefinitely extended, but that long-term question does not require immediate resolution.

Affirmed

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7^th Circuit Court of Appeals

Case Name: C.Y. Wholesale, Inc., et al., v. Eric Holcomb, et al.,

Case No.: 19-3034

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

Focus: Abuse of Discretion – Preliminary Injunction

A group of Indiana-based hemp sellers and wholesalers sued the State of Indiana and its governor, seeking to enjoin the enforcement of the state’s criminal prohibition on the manufacture, delivery, or possession of smokable hemp. Ind. Code § 35-48-3-10.1. The plaintiffs (collectively “C.Y. Wholesale”) argue that Indiana’s law is preempted by the Agriculture Improvement Act of 2018 and barred by the Commerce Clause of the Constitution. The district court issued the requested injunction, and Indiana has appealed.

We conclude that although C.Y. Wholesale may have been entitled to block certain aspects of Indiana’s law, the injunction before us sweeps too broadly. We therefore vacate it and remand to the district court for further proceedings.

Vacated and remanded

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7^th Circuit Court of Appeals

Case Name: United States of America v. Kordell Payne

Case No.: 19-2384

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

Focus: Plea Withdrawal

A defendant pleaded guilty to the crime of felon in possession of a firearm. The law now requires that the defendant’s knowledge of his felon status be reviewed as part of such a plea, which was not done. We consider whether, but for that clear and obvious error, there is a reasonable probability the defendant would not have entered a guilty plea. Such a probability exists when, given the entire record, a jury might believe the defendant was plausibly ignorant of his status as a felon.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Jesus Malagon

Case No.: 18-3200

Officials: SYKES, Chief Judge, and RIPPLE and ROVNER, Circuit Judges.

Focus: Sufficiency of Evidence – Admittance of Evidence

A jury convicted Jesus Malagon of conspiracy with intent to distribute cocaine and possession of cocaine with intent to distribute, 21 U.S.C. §§ 846, 841(a)(1). The district court imposed a below-Guidelines sentence of 60 months’ imprisonment, which reflected the statutory minimum. Malagon now appeals the conviction, arguing that the district court improperly admitted testimony, which tainted the conviction. He asserts that absent the improperly admitted testimony, there was insufficient evidence to support the conviction.

We note that, even if Malagon had succeeded in establishing plain error, any such error would be harmless. The challenged testimony addressed whether Malagon was referring to cocaine in his discussions, but any possible ambiguity as to whether the words referred to a narcotics deal was set to rest when Malagon brought Amador and the informant into the garage to reveal the two kilograms of cocaine and referred to it as the promised delivery. The decision of the district court is AFFIRMED.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Daniel Lewis Lee v. T.J. Watson, Warden, et al.,

Case No.: 20-2128

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

Focus: Stay of Execution

Daniel Lewis Lee and his codefendant, Chevy Kehoe, were members of the Aryan Peoples’ Republic (a/k/a Aryan Peoples’ Resistance), a white supremacist organization founded for the purpose of establishing an independent nation of white supremacists in the Pacific Northwest. In January 1996 Lee and Kehoe traveled from the State of Washington to the Arkansas home of William Mueller, a firearms dealer who owned a large collection of guns and ammunition. There they overpowered Mueller and his wife, Nancy, and questioned their eight-year-old daughter Sarah about the location of Mueller’s guns, ammunition, and cash. After stealing about $30,000 worth of weapons and $50,000 in cash and coins, Lee and Kehoe shot all three victims with a stun gun, placed plastic bags over their heads, and sealed the bags with duct tape to asphyxiate them. They then taped rocks to the three victims and threw them into the Illinois Bayou. The bodies were discovered six months later in Lake Darnelle near Russellville, Arkansas. United States v. Lee, 374 F.3d 637, 642 (8th Cir. 2004).

Lee and Kehoe were indicted in federal court in the Eastern District of Arkansas on three counts of capital murder in aid of racketeering, 18 U.S.C. § 1959(a)(1), and related crimes. The Eighth Circuit affirmed Lee’s convictions and death sentence. 374 F.3d 637 (8th Cir. 2004); 274 F.3d 485 (8th Cir. 2001). In July 2019 the United States scheduled Lee’s execution for December 9, 2019. Two months later he filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 in the Southern District of Indiana, where he is confined in the Terre Haute federal prison. He requested a stay of execution but later withdrew that request. The district judge nonetheless stayed Lee’s execution. We vacated the stay order because § 2255(e) bars a § 2241 petition with a limited exception for claims for which a motion under § 2255 is “inadequate or ineffective to test the validity of” the prisoner’s detention; the exception is customarily referred to as the “Savings Clause.” Lee’s § 2241 petition raised two challenges to his death sentence: a Strickland claim1 for ineffective assistance of trial counsel during the sentencing phase and a Brady/Napue claim based on evidence that was supposedly newly discovered. The former claim attacked counsel’s failure to adequately object to the government’s cross-examination of the defense psychologist regarding the psychopathology test; the latter was premised on a document in the court record in Lee’s 1990 Oklahoma murder case that current counsel contends sheds some light on why the case was resolved as a robbery.

In our order vacating the stay, we explained that Lee’s likelihood of success on the merits was “slim” because both claims—Brady claims alleging suppression of exculpatory evidence and Strickland claims alleging ineffective assistance of counsel—are “regularly made and resolved under § 2255,” so the remedy by motion cannot be called “inadequate or ineffective” for purposes of the Savings Clause. Lee v. Watson, No. 19-3399, 2019 WL 6718924, at *1 (7th Cir. Dec. 6, 2019). Our order vacating the stay had no immediate effect because Lee’s sentence was subject to a separate injunction entered in litigation in the district court for the District of Columbia involving a broader challenge to the federal execution protocol. On June 29, 2020, the Supreme Court denied certiorari in the Execution Protocol case under the name Bourgeois v. Barr, No. 19-1348, 2020 WL 3492763. Three days later a panel of this court issued a decision affirming the denial of a § 2241 petition by another death-row prisoner confined at the Terre Haute prison. Purkey v. United States, No. 19-3318, 2020 WL 3603779 (7th Cir. July 2, 2020). Purkey squarely rejected the arguments Lee raises here. On July 8 Lee moved for leave to file an oversized appellate brief and tendered the brief with the motion, but the brief makes scant mention of Purkey. We granted the motion that same day and ordered the government to respond by 5 p.m. Central Time on July 9. It has done so. Oral argument is unnecessary because under Purkey and our December 6, 2019 order vacating the stay of execution, Lee’s arguments are frivolous.

This case is indistinguishable from Purkey. Lee raised a claim of ineffective assistance of trial counsel in his § 2255 motion and now seeks to use § 2241 as a vehicle to raise a new argument about trial counsel’s ineffectiveness. Under Purkey the Savings Clause does not apply; there was nothing structurally inadequate about § 2255 as a vehicle for this argument. Like Wesley Purkey, Lee invokes the Martinez/Trevino doctrine as interpreted in Ramirez. We rejected this argument in Purkey and that decision controls here.

Lee’s Brady/Napue claim fares no better. As we explained in our December 6 order, the alleged “newly discovered” evidence on which this claim rests was known to Lee and is contained in the publicly available court record in Lee’s 1990 Oklahoma murder case and thus was available with reasonable diligence. Accordingly, the evidence is neither newly discovered under Webster nor was suppressed within the meaning of Brady. The Savings Clause does not apply; § 2255 was not structurally inadequate or ineffective to raise the Brady/Napue claim.

In sum, it follows directly from Purkey and our earlier decision in this case that Lee’s § 2241 petition was properly denied. We therefore affirm the judgment of the district court. We also deny Lee’s motion for a stay of execution, filed today, which relies on the same now-rejected merits arguments.

Affirmed in part. Denied in part.

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: J.W. v. R.B.

Case No.: 2019AP197

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

Focus: Sufficiency of Evidence

Randall appeals an order appointing a guardian of both his estate and person, and an order directing his protective placement in an unlocked unit of a nursing home or an assisted living facility. Randall challenges the sufficiency of the evidence to support the orders. We reject his arguments and affirm.

WI Court of Appeals – District III

Case Name: Laona State Bank v. Judson R. Moeller, et al.,

Case No.: 2019AP1000

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

Focus: Easement

Judson Moeller, Carol Moeller, and Moeller-Valley, Inc. (collectively, the Moellers) appeal a partial summary judgment granted in favor of Laona State Bank (the Bank). In 2010, the Moellers recorded a “Declaration of Easement” which, according to the Moellers, conveyed the right to use an easement road over three of their properties—each of which was then subject to a mortgage held by the Bank. Two years later, the Bank obtained a judgment foreclosing the mortgages on the three properties.

In the instant lawsuit—which is one of several suits the Moellers and the Bank have been involved in since the 2012 judgment of foreclosure—the circuit court granted the Bank partial summary judgment, declaring the 2010 Declaration of Easement void. The Moellers contend, for various reasons, that the court erred by doing so. We disagree and affirm.

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Alan M. Johnson

Case No.: 2018AP2318-CR

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

Focus: Jury Instructions

Alan M. Johnson appeals from a judgment convicting him following a jury trial of first-degree reckless homicide with use of a dangerous weapon. Johnson shot and killed his brother-in-law, K.M., on October 25, 2016, in K.M.’s home. Johnson claimed self-defense in killing K.M. and requested a jury instruction on perfect self-defense. The court refused. Johnson also requested the lesser-included offenses of first-degree reckless homicide, second-degree reckless homicide, and negligent homicide with a dangerous weapon to the State’s charges of first-degree intentional homicide and burglary. The court refused to give the lesser-included offenses of second-degree reckless homicide and negligent homicide. Johnson was acquitted of first and second-degree intentional homicide and burglary but found guilty of first-degree reckless homicide.

This case involves whether the privilege of perfect self-defense exists in the factual context of a trespasser (Johnson) who kills a homeowner (K.M.) to allegedly thwart an attack by the homeowner. This factual scenario brings into play Wisconsin’s so-called “castle doctrine” under WIS. STAT. § 939.48(1m) and specifically raises the question of whether a trespasser can have a “reasonable belief” of an “unlawful interference” by a homeowner.

Johnson claims that the circuit court (1) erred in refusing to instruct the jury on perfect self-defense, (2) erred in refusing to give lesser-included offenses, (3) erred by requiring Johnson to establish a factual basis for self-defense through his own testimony before allowing supporting evidence of self-defense, and (4) erred in refusing to allow other-acts evidence that Johnson found child pornography on K.M.’s computer on October 25, 2016. As the jury was presented with evidence supporting both perfect self-defense and second-degree reckless homicide and the other-acts evidence was improperly excluded, we reverse and remand for a new trial.

We begin with a discussion of the pertinent facts, then analyze the law of perfect self-defense as impacted by the castle doctrine when a trespasser claims the privilege of self-defense for killing a homeowner, then address the court’s refusal to instruct on the lesser-included homicide charges, and conclude by analyzing the court’s refusal to allow into evidence K.M.’s possession of child pornography.

Recommended for Publication

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Keith C. Henyward

Case No.: 2019AP548-CR

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

Focus: Plea Withdrawal

Keith Henyard appeals from a judgment and an order of the circuit court. He claims the court erred in denying his postconviction motion to withdraw his plea. This is so, he argues, because his Sixth Amendment right to the effective assistance of counsel was violated because his counsel, Frank Parise, had an “actual conflict of interest” due to previously presiding as the court commissioner over a hearing in this case, at which hearing Parise accepted Henyard’s waiver of his right to a preliminary hearing, found probable cause to believe Henyard had committed a felony, and bound him over for trial. Henyard alternatively claims the court erroneously exercised its discretion in denying his motion for resentencing, which motion was based upon Henyard’s contention that the court was biased “against heroin and/or drug delivery offenses,” the type of offenses for which Henyard was sentenced in this case.

We reject Henyard’s request for plea withdrawal as he has failed to demonstrate that Parise had an actual conflict of interest that adversely affected his performance and thus failed to show that Parise performed ineffectively. On the second issue, we hold that the circuit court did not err in denying Henyard’s motion for resentencing because Henyard failed to rebut the presumption that the court was fair, impartial and without prejudice. We affirm.

Recommended for Publication

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WI Court of Appeals – District II

Case Name: Michael Bohm, et al., v. Michael Leiber, et al.,

Case No.: 2019AP728

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

Focus: Easement

Michael and Katrina Leiber appeal an order of the circuit court declaring as valid an easement over their property in favor of Michael and Gigi Bohm, the Leibers’ neighbors to the north. The Leibers claim the court erred in determining on summary judgment that the easement was not abandoned. They alternatively contend that even if the easement remains valid, the Bohms nonetheless cannot build their planned driveway on it as the driveway does not constitute a “roadway,” which is the easement’s specified purpose. We conclude that there is a factual question as to whether the easement was abandoned, and thus reverse on that issue, but agree with the circuit court that if the easement was not abandoned, the Bohms’ proposed driveway is an acceptable use under the easement.

Recommended for Publication

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WI Court of Appeals – District IV

Case Name: John M. Wirth v. Gwen A. Bosben, et al.,

Case No.: 2019AP576

Officials: Kloppenburg, Graham, and Nashold, JJ.

Focus: Summary Judgment – Fraudulent Transfer Claims

This case involves fraudulent transfer claims against Bruce Bosben, his wife Gwen Bosben, and their solely owned entity, B&G Bosben LLC. Gwen and B&G appeal a circuit court order that granted summary judgment against all three defendants and invalidated Bruce’s transfer of property interests to Gwen and B&G on the ground that the material issues had already been decided in a prior lawsuit. Gwen and B&G contend that the circuit court misunderstood the scope of the prior decision, that the property is exempt from execution under WIS. STAT. § 815.18(3)(b)2. and (10) (2017-18), and that Bruce’s transfer of the property is not subject to fraudulent transfer attack. We reject these arguments and affirm.

WI Court of Appeals – District IV

Case Name: Mary L. Fabian v. Andrew T. Fabian

Case No.: 2019AP1366

Officials: Blanchard, Graham, and Nashold, JJ.

Focus: Issue of Material Fact

Mary Grogan appeals a circuit court order that denied Grogan’s motion to modify child placement. Grogan contends that the court erred by denying the motion on the ground that Grogan failed to show a substantial change in circumstances. Specifically, Grogan asserts that: (1) there was a disputed issue of fact as to whether Grogan had altered her conduct since the last hearing; and (2) the circuit court failed to specifically address the other factual allegations that Grogan made in support of the motion. For the reasons set forth in this opinion, we conclude that the circuit court properly denied the motion to modify placement and accordingly we affirm.

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. William Peters Myers

Case No.: 2019AP1454-CR

Officials: Blanchard, Graham, and Nashold, JJ.

Focus: Judgment – Sentence Credit

William Myers appeals an amended judgment of conviction in which the circuit court removed language from the original judgment stating that Myers’ sentence would be concurrent to certain other sentences. Myers also appeals the court’s order denying his postconviction motion seeking sentence credit based on the original judgment of conviction. Myers does not persuade us that the circuit court erred in amending the judgment. Accordingly, we affirm.

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Brandon Daniel Mulvenna

Case No.: 2019AP2341-CR

Officials: FITZPATRICK, P.J.

Focus: OWI – Motion to Suppress Evidence Denied

Brandon Mulvenna appeals a Crawford County Circuit Court judgment convicting him of operating a motor vehicle while under the influence of an intoxicant (OWI), third offense. See WIS. STAT. § 346.63(1)(a). Mulvenna contends that he was unlawfully arrested, and that the circuit court erred in denying his motion to suppress evidence obtained as a result of his unlawful arrest. I affirm.

WI Supreme Court Digests

WI Supreme Court

Case Name: State of Wisconsin v. Ryan M. Muth

Case No.: 2020 WI 65

Focus: Abuse of Discretion – Restitution Order

We review an unpublished decision of the court of appeals, which affirmed in part the circuit court’s order that Ryan M. Muth pay restitution to the victims of his crime. Muth had argued that a civil settlement precluded the restitution order. The court of appeals reversed in part and remanded with directions to reduce the amount of restitution because the amount included income lost as a result of the spouses of Muth’s victims missing work due to Muth’s criminal conduct.

We agree with the court of appeals that the civil settlement did not preclude the circuit court from ordering restitution. Restitution is not a cause of action but a sanction for criminal conduct owned by the State; as such, victims cannot unilaterally terminate the State’s interest in making them whole, rehabilitating the offender and deterring criminal conduct. However, the court of appeals erred by reversing in part and remanding with directions to reduce the amount of restitution. Wisconsin, as the State argued, is a marital property state; therefore, a victim suffers actual pecuniary damages when his or her spouse does not work because the victim is a member of the marital community that is affected by the loss of income. We conclude that the circuit court’s restitution order was a reasonable exercise of discretion under the applicable law and facts presented. Accordingly, we affirm in part and reverse in part the court of appeals decision.

Affirmed in part. Reversed in part.

Concur: DALLET, J., filed a concurring opinion, in which ANN WALSH BRADLEY and REBECCA GRASSL BRADLEY, JJ., joined, and in which ZIEGLER, J., joined as to ¶¶63-70 and ¶¶72-78. KELLY, J., filed an opinion concurring in part and dissenting in part, in which HAGEDORN, J., joined as to Parts I. and II.

Dissent: HAGEDORN, J., filed a dissenting opinion.
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WI Supreme Court

Case Name: Kathleen Papa and Professional Homecare Providers, Inc.,

Case No.: 2020 WI 66

Focus: Medicaid Recoupment Policy

This is a review of an unpublished decision of the court of appeals in two consolidated cases, Papa v. Wisconsin Department of Health Services, Nos. 2016AP2082 & 2017AP634, unpublished slip op. (July 31, 2019), reversing the Waukesha County circuit court’s orders granting summary judgment, declaratory relief, and injunctive relief in favor of plaintiffs, Kathleen Papa and Professional Homecare Providers, Inc. (hereinafter “PHP”), and granting supplemental relief and costs and attorney fees. The court of appeals reversed and remanded with orders to enter judgment in favor of the defendant, Wisconsin Department of Health Services (hereinafter “DHS”).

This case requires this court to determine the scope of DHS’s authority to recoup payments made to Medicaid service providers. PHP challenges DHS’s recoupment policy, as it has been enforced against PHP nurses to recover payments made for services they provided to Medicaid patients. PHP argues that, after DHS has already paid nurses for covered and provided Medicaid services, its practice is to then audit nurses’ records and seek to recover the payments if DHS finds any documentation shortcomings. According to PHP, DHS does not contest whether the nurse actually provided a Medicaid patient with the covered service for which the nurse was paid. Nor does it claim that the payment was inappropriate or inaccurate. Rather, it recoups payments nurses earned and received for their work because, after the fact, it claims the nurse’s supporting records are not perfect. The issue in this case is whether DHS has the authority to enforce this recoupment policy. The short answer is no, it does not.

We conclude that PHP’s challenge to DHS’s recoupment policy is ripe for judicial determination. We conclude that, under Wis. Stat. § 49.45(3)(f)1.-2. (2017-18), DHS may recoup Medicaid payments from service providers only in cases where DHS cannot verify one of the following: (1) the actual provision of covered services; (2) that the reimbursement claim is appropriate for the service provided; and (3) that the reimbursement claim is accurate for the service provided. We further conclude that DHS’s recoupment policy exceeds its recoupment authority. Finally, we conclude that the circuit court’s order for supplemental relief did not expand the scope of its original order, but that its order for costs and fees was erroneous. Accordingly, we reverse in part, affirm in part, and remand.

Reversed and remanded in part. Affirmed in part.

Concur: KELLY, J., filed an opinion concurring in part and dissenting in part, in which REBECCA GRASSL BRADLEY, J., joined.

Dissent: KELLY, J., filed an opinion concurring in part and dissenting in part, in which REBECCA GRASSL BRADLEY, J., joined.
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WI Supreme Court

Case Name: Service Employees International Union (SEIU), et al., v. Robin Vos, et al.,

Case No.: 2020 WI 67

Focus: Constitutionality – Legislative Involvement in Litigation

Under our constitutional order, government derives its power solely from the people. Government actors, therefore, only have the power the people consent to give them. The Wisconsin Constitution is the authorizing charter for government power in Wisconsin. And that document describes three——and only three——types of government power: legislative, executive, and judicial. See Wis. Const. art. IV, § 1; id. art. V, § 1; id. art. VII, § 2. Legislative power is the power to make the law, to decide what the law should be. Executive power is power to execute or enforce the law as enacted. And judicial power is the power to interpret and apply the law to disputes between parties.

The constitution then provides that each type of power is “vested” in a corresponding branch of government. The legislative power is vested in two elected bodies——the senate and the assembly. Id. art. IV, § 1. The executive power is vested in the governor. Id. art. V, § 1. And the judicial power——being exercised in this very writing——is vested in a “unified court system” headed by the supreme court. Id. art. VII, §§ 2-3. With some exceptions, the general rule is that this diffusion of power into three separate branches creates a concomitant separation of powers requiring each branch to exercise only the power vested in it by the people of Wisconsin.

This case arises from enactment of 2017 Wis. Act 369 and 2017 Wis. Act 370. These acts were passed by the legislature and signed by the governor following the 2018 election, but before the newly elected legislature, governor, and attorney general were sworn into office. In response, several labor organizations and individual taxpayers (the Plaintiffs) filed suit against the leaders of both houses of the legislature (the Legislative Defendants), the Governor, and the Attorney General. The Plaintiffs broadly claimed that many of the enacted provisions violate the separation of powers. In particular, the Plaintiffs argued these new laws either overly burden the executive branch or took executive power and gave it to the legislature.

The complaint unequivocally presents a facial attack on all the laws challenged. That is, the Plaintiffs seek to strike down application of the challenged laws in their entirety, rather than as applied to a given party or set of circumstances. Briefing below and to this court confirms this. By presenting their challenge this way, the Plaintiffs face a tall task. Under our well-established law, a facial challenge succeeds only when every single application of a challenged provision is unconstitutional. The procedural history is a bit complicated, but in short, the Legislative Defendants moved to dismiss the entire complaint, which the circuit court denied in full. In the same order, the circuit court granted a temporary injunction against enforcement of some of the provisions, most notably, laws requiring legislative approval of settlements by the attorney general, a provision allowing multiple suspensions of administrative rules, and a set of statutes defining and regulating administrative agency communications called “guidance documents.” We took jurisdiction of this case, and therefore review the circuit court’s denial of the motion to dismiss and its partial grant of a temporary injunction.

The court’s opinion in this case is being announced in two writings. Justice Kelly’s opinion constitutes the majority opinion of the court on all of the guidance document provisions. This writing constitutes the majority opinion of the court on all other issues raised in this case. In light of the procedural posture of this case and the briefing before us, our analysis in this opinion rests on our review of the circuit court’s denial of the Legislative Defendants’ motion to dismiss. Our task is to determine whether the complaint states a valid legal claim against the challenged laws assuming the allegations in the complaint are true. Accordingly, this is purely a question of law and requires no factual development. See infra, ¶26.

While the Legislative Defendants moved to dismiss the entire complaint, they have not sufficiently briefed or developed arguments regarding several challenged provisions. Where the party seeking dismissal has not developed arguments on a legal issue, we will not develop arguments for them. See infra, ¶24. Therefore, we offer no opinion on the merits of these undeveloped claims——none of which were enjoined by the circuit court——and they may proceed in the ordinary course of litigation on remand.

All of the enjoined claims, as well as several other related claims, were sufficiently briefed and argued. We conclude that with respect to each of these claims, other than those separately addressed in Justice Kelly’s opinion for the court, the Plaintiffs have not met their high burden to demonstrate that the challenged provisions are unconstitutional in all of their applications. Each of these provisions can be lawfully enforced as enacted in at least some circumstances. Accordingly, the motion to dismiss the facial challenges to these claims should have been granted. This therefore means the temporary injunction is vacated in full except as otherwise instructed in Justice Kelly’s opinion for the court.

Specifically, the provisions regarding legislative involvement in litigation through intervention and settlement approval authority in certain cases prosecuted or defended by the attorney general are facially constitutional. The legislature may have an institutional interest in litigation implicating the public purse or in cases arising from its statutorily granted right to request the attorney general’s participation in litigation. These institutional interests are sufficient to allow at least some constitutional applications of these laws, and the facial challenge asking us to declare the laws unenforceable under any circumstances necessarily fails.

In a similar vein, the provision permitting legislative committee review of any proposed changes to security at the State Capitol has at least some constitutional applications with respect to security of legislative space. It follows that a facial challenge to this provision must fail. Likewise, the provision allowing multiple suspensions of administrative rules plainly has constitutional applications under Martinez v. DILHR, where we held that one three-month suspension is constitutionally permissible. 165 Wis. 2d 687, 702, 478 N.W.2d 582 (1992). No party asks us to revisit Martinez or its principles. We conclude that if one three-month suspension passes constitutional muster, two three-month suspensions surely does as well. Therefore, the facial challenge to this provision fails. Finally, the provision partially codifying our holding in Tetra Tech is also clearly constitutional in many, if not all, applications. Tetra Tech EC, Inc. v. DOR, 2018 WI 75, 382 Wis. 2d 496, 914 N.W.2d 21. The facial challenge to this provision cannot survive. With this summary in view, our analysis begins with how we got here.

Affirmed in part. Reversed and remanded in part. Injunction vacated in part.

Concur: ROGGENSACK, C.J., filed an opinion concurring in part and dissenting in part. DALLET, J., filed an opinion concurring in part and dissenting in part, in which ANN WALSH BRADLEY, J., joined. HAGEDORN, J., filed an opinion concurring in part and dissenting in part, in which ZIEGLER, J., joined.

Dissent: ROGGENSACK, C.J., filed an opinion concurring in part and dissenting in part. DALLET, J., filed an opinion concurring in part and dissenting in part, in which ANN WALSH BRADLEY, J., joined. HAGEDORN, J., filed an opinion concurring in part and dissenting in part, in which ZIEGLER, J., joined.
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WI Supreme Court

Case Name: Nancy Bartlett, et al., v. Tony Evers, et al.,

Case No.: 2020 WI 68

Focus: Constitutional Authority – Veto Powers

We review the petitioners’ original action requesting a declaration that Governor Evers exceeded his constitutional authority to partially veto appropriation bills. The petitioners assert that four series of partial vetoes in 2019 Wis. Act 9——the state’s 2019-21 biennial budget bill——are unconstitutional. The parties refer to the provisions based on their content before the vetoes: (1) the school bus modernization fund; (2) the local roads improvement fund; (3) the vapor products tax and (4) the vehicle fee schedule.

The petitioners contend that the four series of vetoes are unconstitutional. Article V, Section 10(1)(b) of the Wisconsin Constitution provides that the governor may approve appropriation bills “in whole or in part.”

No rationale has the support of a majority. However, a majority has reached a conclusion with respect to the constitutionality of each series of vetoes. Five justices conclude that the vetoes to the school bus modernization fund are unconstitutional. The same five also conclude that the vetoes to the local roads improvement fund are unconstitutional. Four justices conclude that the vetoes to the vapor products tax are unconstitutional. Five justices conclude that the vetoes to the vehicle fee schedule are constitutional.

Chief Justice Roggensack concludes that the vetoes to the school bus modernization fund and the local roads improvement fund are unconstitutional because they “resulted in topics and subject matters that were not found in the enrolled bill.” Chief Justice Roggensack’s concurrence/dissent, ¶99. She also concludes that the vetoes to the vapor products tax and vehicle fee schedule are constitutional because they did not alter “the topic or subject matter of the part approved.” Id., ¶106.

Justice Ann Walsh Bradley and Justice Dallet conclude that the four series of vetoes are constitutional because they “result[ed] in objectively complete, entire, and workable laws.” Justice Ann Walsh Bradley’s concurrence/dissent, ¶170. Consequently, they would not grant relief. Justice Kelly and Justice Rebecca Grassl Bradley conclude that the four series of vetoes are unconstitutional. Justice Kelly’s concurrence/dissent, ¶230. They conclude that the vetoes violate the Wisconsin Constitution’s origination clause, amendment clause and legislative passage clause. Id., ¶¶223, 225-26, 228.

Justice Hagedorn and Justice Ziegler conclude that the vetoes to the school bus modernization fund, the local roads improvement fund and the vapor products tax are unconstitutional. Justice Hagedorn’s concurrence, ¶¶269–75. They also conclude that the vetoes to the vehicle fee schedule are constitutional because they merely negated a policy proposal advanced by the legislature. Id., ¶268.

Accordingly, rights are declared such that the vetoes to the school bus modernization fund, the local roads improvement fund and the vapor products tax are unconstitutional and invalid. Relief is granted such that the portions of the enrolled bills that were vetoed are in full force and effect as drafted by the legislature. See State ex rel. Sundby v. Adamany, 71 Wis. 2d 118, 125, 237 N.W.2d 910 (1976). The vetoes to the vehicle fee schedule are constitutional, and no relief is granted with respect to these vetoes.

Granted in part. Denied in part.

Concur: ROGGENSACK, C.J., filed an opinion concurring in part and dissenting in part. ANN WALSH BRADLEY, J., filed an opinion concurring in part and dissenting in part, in which DALLET, J., joined. KELLY, J., filed an opinion concurring in part and dissenting in part, in which REBECCA GRASSL BRADLEY, J. joined. HAGEGDORN, J., filed a concurring opinion, in which ZIEGLER, J., joined.

Dissent: ROGGENSACK, C.J., filed an opinion concurring in part and dissenting in part. ANN WALSH BRADLEY, J., filed an opinion concurring in part and dissenting in part, in which DALLET, J., joined. KELLY, J., filed an opinion concurring in part and dissenting in part, in which REBECCA GRASSL BRADLEY, J. joined.
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WI Supreme Court

Case Name: Wisconsin Small Business United, Inc., et al., v. Joel Brennan, et al.,

Case No.: 2020 WI 69

Focus: Constitutional Authority – Veto Powers

This is an original action challenging whether two partial vetoes in the 2017-19 biennial budget exceeded the governor’s constitutional authority. While the respondents defend the vetoes on their merits, they also contend this challenge is too late and should be barred by the equitable doctrine of laches. We agree that laches should be applied here. The respondents have proved the three elements of a laches claim——unreasonable delay, lack of knowledge a claim would be brought, and prejudice. And given the reliance interests at stake and the need for stability and certainty in the enactment of state budget bills, we exercise our discretion to apply laches based on the facts of this case. Accordingly, we dismiss the original action.

Denied

Concur:

Dissent: REBECCA GRASSL BRADLEY, J., filed a dissenting opinion, in which KELLY, J., joined.
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Supreme Court Digests

United States Supreme Court

Case Name: Peter B. Chiafalo, et al., v. Washington

Case No.: 19-465

Focus: Elector Pledge Requirement – Noncompliance

Every four years, millions of Americans cast a ballot for a presidential candidate. Their votes, though, actually go toward selecting members of the Electoral College, whom each State appoints based on the popular returns. Those few “electors” then choose the President. The States have devised mechanisms to ensure that the electors they appoint vote for the presidential candidate their citizens have preferred. With two partial exceptions, every State appoints a slate of electors selected by the political party whose candidate has won the State’s popular vote. Most States also compel electors to pledge in advance to support the nominee of that party. This Court upheld such a pledge requirement decades ago, rejecting the argument that the Constitution “demands absolute freedom for the elector to vote his own choice.” Ray v. Blair, 343 U. S. 214, 228 (1952). Today, we consider whether a State may also penalize an elector for breaking his pledge and voting for someone other than the presidential candidate who won his State’s popular vote. We hold that a State may do so.

Affirmed

Dissenting:

Concurring: THOMAS, J., filed an opinion concurring in the judgment, in which GORSUCH, J., joined as to Part II.
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United States Supreme Court

Case Name: William P. Barr, et al., v. American Association

Case No.: 19-631

Focus: TCPA Violation – Robocall Restriction

In response to consumer complaints, Congress passed the Telephone Consumer Protection Act of 1991 (TCPA) to prohibit, inter alia, almost all robocalls to cell phones. 47 U. S. C. §227(b)(1)(A)(iii). In 2015, Congress amended the robocall restriction, carving out a new government debt exception that allows robocalls made solely to collect a debt owed to or guaranteed by the United States. 129 Stat. 588. The American Association of Political Consultants and three other organizations that participate in the political system filed a declaratory judgment action, claiming that §227(b)(1)(A)(iii) violated the First Amendment. The District Court determined that the robocall restriction with the government-debt exception was content-based but that it survived strict scrutiny because of the Government’s compelling interest in collecting debt. The Fourth Circuit vacated the judgment, agreeing that the robocall restriction with the government-debt exception was a content-based speech restriction, but holding that the law could not withstand strict scrutiny. The court invalidated the government-debt exception and applied traditional severability principles to sever it from the robocall restriction.

Americans passionately disagree about many things. But they are largely united in their disdain for robocalls. The Federal Government receives a staggering number of complaints about robocalls—3.7 million complaints in 2019 alone. The States likewise field a constant barrage of complaints. For nearly 30 years, the people’s representatives in Congress have been fighting back. As relevant here, the Telephone Consumer Protection Act of 1991, known as the TCPA, generally prohibits robocalls to cell phones and home phones. But a 2015 amendment to the TCPA allows robocalls that are made to collect debts owed to or guaranteed by the Federal Government, including robocalls made to collect many student loan and mortgage debts.

This case concerns robocalls to cell phones. Plaintiffs in this case are political and nonprofit organizations that want to make political robocalls to cell phones. Invoking the First Amendment, they argue that the 2015 government-debt exception unconstitutionally favors debt-collection speech over political and other speech. As relief from that unconstitutional law, they urge us to invalidate the entire 1991 robocall restriction, rather than simply invalidating the 2015 government-debt exception. Six Members of the Court today conclude that Congress has impermissibly favored debt-collection speech over political and other speech, in violation of the First Amendment. See infra, at 6–9; post, at 1–2 (SOTOMAYOR, J., concurring in judgment); post, at 1, 3 (GORSUCH, J., concurring in judgment in part and dissenting in part). Applying traditional severability principles, seven Members of the Court conclude that the entire 1991 robocall restriction should not be invalidated, but rather that the 2015 government-debt exception must be invalidated and severed from the remainder of the statute. See infra, at 10–25; post, at 2 (SOTOMAYOR, J., concurring in judgment); post, at 11–12 (BREYER, J., concurring in judgment with respect to severability and dissenting in part). As a result, plaintiffs still may not make political robocalls to cell phones, but their speech is now treated equally with debt-collection speech. The judgment of the U. S. Court of Appeals for the Fourth Circuit is affirmed.

Affirmed

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

Concurring: THOMAS, J., joined as to Parts I and II. SOTOMAYOR, J., filed an opinion concurring in the judgment. BREYER, J., filed an opinion concurring in the judgment with respect to severability and dissenting in part, in which GINSBURG and KAGAN, JJ., joined. GORSUCH, J., filed an opinion concurring in the judgment in part and dissenting in part, in which THOMAS, J., joined as to Part II.
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United States Supreme Court

Case Name: Colorado Department of State, et al., v. Michael Baca, et al.,

Case No.: 19-518

Focus: Order Correcting Opinion

The judgment of the United States Court of Appeals for the Tenth Circuit is reversed for the reasons stated in Chiafalo v. Washington, ante, p. ___.

Reversed

Dissenting:

Concurring:
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United States Supreme Court

Case Name: Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, et al.,

Case No.: 19-431; 19-454

Focus: Affordable Care Act Violation – Contraceptive Mandate

In these consolidated cases, we decide whether the Government created lawful exemptions from a regulatory requirement implementing the Patient Protection and Affordable Care Act of 2010 (ACA), 124 Stat. 119. The requirement at issue obligates certain employers to provide contraceptive coverage to their employees through their group health plans. Though contraceptive coverage is not required by (or even mentioned in) the ACA provision at issue, the Government mandated such coverage by promulgating interim final rules (IFRs) shortly after the ACA’s passage. This requirement is known as the contraceptive mandate.

After six years of protracted litigation, the Departments of Health and Human Services, Labor, and the Treasury (Departments)—which jointly administer the relevant ACA provision—exempted certain employers who have religious and conscientious objections from this agency-created mandate. The Third Circuit concluded that the Departments lacked statutory authority to promulgate these exemptions and affirmed the District Court’s nationwide preliminary injunction. This decision was erroneous. We hold that the Departments had the authority to provide exemptions from the regulatory contraceptive requirements for employers with religious and conscientious objections. We accordingly reverse the Third Circuit’s judgment and remand with instructions to dissolve the nationwide preliminary injunction.

Reversed and remanded

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

Concurring: ALITO, J., filed a concurring opinion, in which GORSUCH, J., joined. KAGAN, J., filed an opinion concurring in the judgment, in which BREYER, J., joined.
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United States Supreme Court

Case Name: Our Lady of Guadalupe School, et al., v. Agnes Morrissey-Berru

Case No.: 19-267; 19-348

Focus: 1^st Amendment Violation

These cases require us to decide whether the First Amendment permits courts to intervene in employment disputes involving teachers at religious schools who are entrusted with the responsibility of instructing their students in the faith. The First Amendment protects the right of religious institutions “to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America, 344 U. S. 94, 116 (1952). Applying this principle, we held in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171 (2012), that the First Amendment barred a court from entertaining an employment discrimination claim brought by an elementary school teacher, Cheryl Perich, against the religious school where she taught. Our decision built on a line of lower court cases adopting what was dubbed the “ministerial exception” to laws governing the employment relationship between a religious institution and certain key employees. We did not announce “a rigid formula” for determining whether an employee falls within this exception, but we identified circumstances that we found relevant in that case, including Perich’s title as a “Minister of Religion, Commissioned,” her educational training, and her responsibility to teach religion and participate with students in religious activities. Id., at 190–191.

In the cases now before us, we consider employment discrimination claims brought by two elementary school teachers at Catholic schools whose teaching responsibilities are similar to Perich’s. Although these teachers were not given the title of “minister” and have less religious training than Perich, we hold that their cases fall within the same rule that dictated our decision in Hosanna-Tabor. The religious education and formation of students is the very reason for the existence of most private religious schools, and therefore the selection and supervision of the teachers upon whom the schools rely to do this work lie at the core of their mission. Judicial review of the way in which religious schools discharge those responsibilities would undermine the independence of religious institutions in a way that the First Amendment does not tolerate.

Reversed and remanded

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

Concurring: THOMAS, J., filed a concurring opinion, in which GORSUCH, J., joined.
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United States Supreme Court

Case Name: Donald J. Trump v. Cyrus R. Vance, Jr., et al.,

Case No.: 19-635

Focus: State Criminal Subpoena – Enforcement

In our judicial system, “the public has a right to every man’s evidence.” Since the earliest days of the Republic, “every man” has included the President of the United States. Beginning with Jefferson and carrying on through Clinton, Presidents have uniformly testified or produced documents in criminal proceedings when called upon by federal courts. This case involves—so far as we and the parties can tell—the first state criminal subpoena directed to a President. The President contends that the subpoena is unenforceable. We granted certiorari to decide whether Article II and the Supremacy Clause categorically preclude, or require a heightened standard for, the issuance of a state criminal subpoena to a sitting President.

Affirmed and remanded

Dissenting: THOMAS, J., and ALITO, J., filed dissenting opinions.

Concurring: KAVANAUGH, J., filed an opinion concurring in the judgment, in which GORSUCH, J., joined.
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United States Supreme Court

Case Name: Donald J. Trump, et al., v. Mazars USA, LLP, et al.,

Case No.: 19-715; 19-760

Focus: Congressional Subpoena – Information About President

Over the course of five days in April 2019, three committees of the U. S. House of Representatives issued four subpoenas seeking information about the finances of President Donald J. Trump, his children, and affiliated businesses. We have held that the House has authority under the Constitution to issue subpoenas to assist it in carrying out its legislative responsibilities. The House asserts that the financial information sought here—encompassing a decade’s worth of transactions by the President and his family—will help guide legislative reform in areas ranging from money laundering and terrorism to foreign involvement in U. S. elections. The President contends that the House lacked a valid legislative aim and instead sought these records to harass him, expose personal matters, and conduct law enforcement activities beyond its authority. The question presented is whether the subpoenas exceed the authority of the House under the Constitution.

We have never addressed a congressional subpoena for the President’s information. Two hundred years ago, it was established that Presidents may be subpoenaed during a federal criminal proceeding, United States v. Burr, 25 F. Cas. 30 (No. 14,692d) (CC Va. 1807) (Marshall, Cir. J.), and earlier today we extended that ruling to state criminal proceedings, Trump v. Vance, ante, p. ___. Nearly fifty years ago, we held that a federal prosecutor could obtain information from a President despite assertions of executive privilege, United States v. Nixon, 418 U. S. 683 (1974), and more recently we ruled that a private litigant could subject a President to a damages suit and appropriate discovery obligations in federal court, Clinton v. Jones, 520 U. S. 681 (1997).

This case is different. Here the President’s information is sought not by prosecutors or private parties in connection with a particular judicial proceeding, but by committees of Congress that have set forth broad legislative objectives. Congress and the President—the two political branches established by the Constitution—have an ongoing relationship that the Framers intended to feature both rivalry and reciprocity. See The Federalist No. 51, p. 349 (J. Cooke ed. 1961) (J. Madison); Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 635 (1952) (Jackson, J., concurring). That distinctive aspect necessarily informs our analysis of the question before us.

Vacated and remanded

Dissenting: THOMAS, J., and ALITO, J., filed dissenting opinions.

Concurring:
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United States Supreme Court

Case Name: Jimcy McGirt v. Oklahoma

Case No.: 18-9526

Focus: Statutory Interpretation – Major Crimes Act

On the far end of the Trail of Tears was a promise. Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever. In exchange for ceding “all their land, East of the Mississippi river,” the U. S. government agreed by treaty that “[t]he Creek country west of the Mississippi shall be solemnly guarantied to the Creek Indians.” Treaty With the Creeks, Arts. I, XIV, Mar. 24, 1832, 7 Stat. 366, 368 (1832 Treaty). Both parties settled on boundary lines for a new and “permanent home to the whole Creek nation,” located in what is now Oklahoma. Treaty With the Creeks, preamble, Feb. 14, 1833, 7 Stat. 418 (1833 Treaty). The government further promised that “[no] State or Territory [shall] ever have a right to pass laws for the government of such Indians, but they shall be allowed to govern themselves.” 1832 Treaty, Art. XIV, 7 Stat. 368. Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word.

At one level, the question before us concerns Jimcy McGirt. Years ago, an Oklahoma state court convicted him of three serious sexual offenses. Since then, he has argued in postconviction proceedings that the State lacked jurisdiction to prosecute him because he is an enrolled member of the Seminole Nation of Oklahoma and his crimes took place on the Creek Reservation. A new trial for his conduct, he has contended, must take place in federal court. The Oklahoma state courts hearing Mr. McGirt’s arguments rejected them, so he now brings them here.

Mr. McGirt’s appeal rests on the federal Major Crimes Act (MCA). The statute provides that, within “the Indian country,” “[a]ny Indian who commits” certain enumerated offenses “against the person or property of another Indian or any other person” “shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.” 18 U. S. C. §1153(a). By subjecting Indians to federal trials for crimes committed on tribal lands, Congress may have breached its promises to tribes like the Creek that they would be free to govern themselves. But this particular incursion has its limits—applying only to certain enumerated crimes and allowing only the federal government to try Indians. State courts generally have no jurisdiction to try Indians for conduct committed in “Indian country.” Negonsott v. Samuels, 507 U. S. 99, 102–103 (1993).

The key question Mr. McGirt faces concerns that last qualification: Did he commit his crimes in Indian country? A neighboring provision of the MCA defines the term to include, among other things, “all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation.” §1151(a). Mr. McGirt submits he can satisfy this condition because he committed his crimes on land reserved for the Creek since the 19th century.

The Creek Nation has joined Mr. McGirt as amicus curiae. Not because the Tribe is interested in shielding Mr. McGirt from responsibility for his crimes. Instead, the Creek Nation participates because Mr. McGirt’s personal interests wind up implicating the Tribe’s. No one disputes that Mr. McGirt’s crimes were committed on lands described as the Creek Reservation in an 1866 treaty and federal statute. But, in seeking to defend the state-court judgment below, Oklahoma has put aside whatever procedural defenses it might have and asked us to confirm that the land once given to the Creeks is no longer a reservation today.

At another level, then, Mr. McGirt’s case winds up as a contest between State and Tribe. The scope of their dispute is limited; nothing we might say today could unsettle Oklahoma’s authority to try non-Indians for crimes against non-Indians on the lands in question. See United States v. McBratney, 104 U. S. 621, 624 (1882). Still, the stakes are not insignificant. If Mr. McGirt and the Tribe are right, the State has no right to prosecute Indians for crimes committed in a portion of Northeastern Oklahoma that includes most of the city of Tulsa. Responsibility to try these matters would fall instead to the federal government and Tribe. Recently, the question has taken on more salience too. While Oklahoma state courts have rejected any suggestion that the lands in question remain a reservation, the Tenth Circuit has reached the opposite conclusion. Murphy v. Royal, 875 F. 3d 896, 907–909, 966 (2017). We granted certiorari to settle the question. 589 U. S. ___ (2019).

Reversed

Dissenting: ROBERTS, C. J., filed a dissenting opinion, in which ALITO and KAVANAUGH, JJ., joined, and in which THOMAS, J., joined, except as to footnote 9. THOMAS, J., filed a dissenting opinion.

Concurring:
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United States Supreme Court

Case Name: Tommy Sharp v. Patrick Dwayne Murphy

Case No.: 17-1107

Focus: Order Correcting Opinion

The judgment of the United States Court of Appeals for the Tenth Circuit is affirmed for the reasons stated in McGirt v. Oklahoma, ante, p. ___. It is so ordered

So ordered

Dissenting: JUSTICE THOMAS and JUSTICE ALITO dissent.

Concurring:
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