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Weekly Case Digests – September 13, 2021 – September 17, 2021

By: Derek Hawkins//September 17, 2021//

Weekly Case Digests – September 13, 2021 – September 17, 2021

By: Derek Hawkins//September 17, 2021//

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7th Circuit Digests

7th Circuit Court of Appeals

Case Name: United States of America v. Joseph Canfield

Case No.: 20-3145

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

Focus: Sentencing Guidelines – Supervised Released

Defendant-appellant Joseph Canfield was sentenced to prison and supervised release for possessing child pornography. In a subsequent proceeding for revocation of his supervised release, the district court sentenced Canfield to twenty months’ imprisonment and an additional five years’ supervised release, a term of supervised release which all parties referred to as “mandatory.” In this appeal, Canfield challenges the application of the additional five-year term as not actually mandatory but instead the result of a mutual mistake.

Going no further than our threshold waiver inquiry, we now affirm the judgment of the district court. Canfield had ample advance notice of the terms of his supervised release, was given a meaningful opportunity to object, indeed advanced several objections to those terms, and went so far as to affirmatively advance the argument he now challenges on appeal. Those actions amount to waiver.

Affirmed
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7th Circuit Court of Appeals

Case Name: United States of America v. Jorge L. Leal

Case No.: 20-3102

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

Focus: Interlocutory Appeal – Miranda Warning

Jorge Leal used an online dating application to solicit sex acts from a user he believed was an underage boy. That user turned out to be a Federal Bureau of Investigation agent conducting a sting operation. In an interview with law enforcement, Leal confessed. He was then arrested and charged with knowingly attempting to entice a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b). Leal moved to suppress his incriminating statements, arguing that the agents failed to provide a Miranda warning before the interview. The district court granted the motion, and the government filed this interlocutory appeal. Because Leal was not “in custody” during the interview, we reverse.

Reversed and remanded
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7th Circuit Court of Appeals

Case Name: Carter Page, et al., v. Democratic National Committee, et al.,

Case No.: 20-2781

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

Focus: Subject-matter Jurisdiction

Carter Page, a former advisor to the Donald J. Trump Presidential Campaign, filed suit against the Democratic National Committee, a subsidiary DNC Services Corporation, the law firm Perkins Coie LLP, and two Perkins Coie partners. Page alleges various acts of defamation based on news stories published in the fall of 2016. Having advanced only violations of state law, and further alleging that no defendant is a citizen of his home state of Oklahoma, Page relies on diversity jurisdiction as his gateway into federal court.

The district court dismissed the case for lack of personal jurisdiction. Upon reviewing Page’s notice of appeal and accompanying docketing statement, we questioned the existence of subject matter jurisdiction on the basis that Perkins Coie (with a few of its U.S. based partners working and living abroad) may not qualify as a proper defendant for purposes of diversity jurisdiction under 28 U.S.C. § 1332. Our concern proved accurate. So, while we have no reason to question the district court’s conclusion on personal jurisdiction, we affirm the dismissal of Page’s complaint for lack of subject matter jurisdiction.

Affirmed
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7th Circuit Court of Appeals

Case Name: United States of America v. Hunter D. Roush

Case No.: 19-3217

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

Focus: Sentencing Guidelines – Supervised Release 

The defendant, Hunter D. Roush, pled guilty to transportation of child pornography, in violation of 18 U.S.C. § 2252A(a)(1) and (b)(1), and possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). The district court imposed a below-Guidelines sentence of 188 months’ imprisonment on Count I and 120 months’ imprisonment on Count II, followed by 10 years of supervised release on each count, all running concurrently. Roush now appeals, arguing that the court erred in failing to properly identify the Guidelines range and that the court erred in failing to consider his primary arguments in mitigation before imposing the sentence. Neither argument has merit. The decision of the district court is AFFIRMED.

Affirmed
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7th Circuit Court of Appeals

Case Name: Jacqueline Jones v. Arnold Mathews, et al.,

Case No.: 19-2629

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

Focus: Prisoner – Deliberate Indifference

On November 30, 2015, Toya Frazier reported to the Champaign County Satellite Jail to begin serving a 42-month sentence for felony theft. She died in her cell less than 36 hours later. Jacqueline Jones is Frazier’s sister and the Independent Administrator of Frazier’s estate. She filed this action pursuant to 42 U.S.C. § 1983 against Sergeant Arnold Mathews, a correctional officer at the jail, alleging that he caused Frazier’s death by acting with deliberate indifference to Frazier’s symptoms of heroin withdrawal. The district court granted summary judgment in favor of the defendants, and we affirm.

Affirmed
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7th Circuit Court of Appeals

Case Name: United States of America v. Chawan Lowe

Case No.: 20-2736

Officials: KANNE, SCUDDER, and KIRSCH, Circuit Judges.

Focus: Admissible Evidence – Other-acts Evidence

Chawan Lowe was found guilty of illegally possessing a firearm. He appeals his conviction and sentence on the grounds that the district court (1) admitted inadmissible “other-act evidence” at trial and (2) mishandled its response when a juror gave an “equivocal” answer about his individual verdict in jury polling. But the evidence in question was not inadmissible, the juror’s answer was not equivocal, and the court acted appropriately in all respects. We therefore affirm the conviction and sentence.

Affirmed
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7th Circuit Court of Appeals

Case Name: Leonard Kidd v. David Gomez

Case No.: 20-2207

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

Focus: Habeas Relief – Admissible Evidence

Twice, Petitioner Leonard Kidd voluntarily testified under oath that he murdered four people in January 1984. He is serving a life sentence for those crimes. Kidd now seeks habeas relief because the police allegedly coerced a separate confession from him on the night of the murders. We decline to grant such relief because even if the allegedly coerced confession was improperly admitted at Kidd’s trial, the admission did not have a “substantial and injurious effect or influence” on the jury’s verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). We thus affirm the decision of the district court denying Kidd’s habeas petition.

Affirmed
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7th Circuit Court of Appeals

Case Name: Daniel Loughran, et al., v. Wells Fargo Bank, N.A., et al.,

Case No.: 19-3530

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

Focus: Foreclosure – Abstention Doctrine

Daniel and Margaret Loughran defaulted on their home mortgage in 2011. In the ensuing foreclosure litigation, the Loughrans have not contested that they are in default. Instead, they have pursued a series of procedural delay tactics, as a result of which they remain in possession of their home despite not having made a mortgage payment in nine years.

This case concerns one of the Loughrans’ many maneuvers. In January 2019, after their state‐court foreclosure litigation was already over seven years old, the Loughrans accused U.S. Bank and its counsel of committing fraud in the course of those proceedings. In May 2019, sensing that their fraud claim was going nowhere, the Loughrans tried their luck in federal court, with a complaint that copied and pasted large swaths of text from their state‐court filings. Citing the doctrine first announced in Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976), and noting the practical identity between the federal and state actions, the district court stayed the federal proceedings. The Loughrans have appealed that decision, which we now affirm.

Affirmed
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7th Circuit Court of Appeals

Case Name: Anthony C. Olvera v. David Gomez

Case No.: 18-3435

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

Focus: Habeas Relief – Ineffective Assistance of Counsel

Petitioner Anthony Olvera was the driver in a gang-related, drive-by shooting that resulted in the death of an innocent bystander. An Illinois jury found Mr. Olvera guilty of first-degree murder on the theory that he was accountable for the shooter’s conduct. Mr. Olvera now seeks postconviction review, claiming that his trial counsel provided ineffective assistance by conducting an inadequate pretrial investigation. The state courts denied Mr. Olvera’s petition. He then filed this petition for habeas corpus under 28 U.S.C. § 2254. The district court denied relief. We now affirm the district court’s judgment.

Affirmed

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7th Circuit Court of Appeals

Case Name: Peter Daza v. State of Indiana, et al.,

Case No.: 20-1209

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

Focus: Claim Preclusion

Peter Daza once worked for the Indiana Department of Transportation (INDOT), but he was fired in 2015. Believing that the agency took that step for discriminatory and retaliatory reasons, he sued it in 2017. The district court granted summary judgment for the defendants, however, and we affirmed its decision. See Daza v. Indiana, 941 F.3d 303 (7th Cir. 2019) (Daza I). That should have been the end of things, but it was not. Days after the district court dismissed his first action, he filed the present case, which is identical except for the addition of a failure-to-rehire allegation. The district court dismissed the new action on claim-preclusion grounds, and we affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Always Towing & Recovery, Inc., et al., v. City of Milwaukee, et al.,

Case No.: 20-3261

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

Focus: Sherman Act Violation – Failure to State Claim

This case is about the scrap metal recycling business—the collection and processing of ferrous (iron-based) and nonferrous metals. Plaintiffs-appellants, an assortment of companies that tow or recycle used cars, allege that defendants-appellees, the City of Milwaukee (“the City”) and its subcontractor, engaged in anticompetitive behavior to self-allocate towing services and abandoned vehicles, a primary input in that industry.

Among other claims, plaintiffs allege that a contract the City entered into with one of the area’s largest recycling providers, defendant-appellee Miller Compressing Co., violates § 1 of the Sherman Act, 15 U.S.C. § 1 et seq. Plaintiffs assert that the contract provided direct evidence of an agreement to restrain trade. We agree with the district court’s judgment that plaintiffs failed to state a claim upon which relief could be granted because they did not plead an unreasonable restraint on trade, and we therefore now affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Continental Western Insurance Company v. Country Mutual Insurance Company

Case No.: 20-2962

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

Focus: Attorney Fees

In the aftermath of a serious collision between an ambulance and semi-truck, a question lingered: Who owned the ambulance? This inquiry turned contentious as two insurance companies looked to sidestep primary coverage obligations arising from three post-accident lawsuits. The ambulance service’s formation through a joint enterprise and status as a separately insured party complicated the resultant ownership determination. The district court determined that defendant-appellant Country Mutual Insurance Company’s named insured owned the ambulance, holding Country Mutual responsible for primary coverage for the defense costs in question. Accordingly, the district court found that plaintiff-appellee Continental Western Insurance Company’s named insured did not own the ambulance such that Continental only owed coverage in excess of Country Mutual’s primary coverage. After granting summary judgment to Continental on these grounds, the court awarded Continental attorney’s fees and defense costs equal to the amounts that Country Mutual should have covered but that Continental, in fact, incurred to defend its insured in the three underlying lawsuits. Considering the record evidence strongly reflects the parties’ intent that Country Mutual’s insured owned the ambulance and considering the reasonableness of the resulting award of attorney’s fees under Illinois law, we affirm the district court.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Fernando Alvarez-Carvajal  

Case No.: 20-2934

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

Focus: Sentencing Guidelines – Enhancement

A jury convicted defendant-appellant Fernando Alvarez-Carvajal of conspiracy to distribute methamphetamine, marijuana, and heroin for his role in an interstate drug-trafficking operation. In calculating Alvarez-Carvajal’s advisory sentencing range under the U.S. Sentencing Guidelines (“U.S.S.G.”), the district court applied a two-level enhancement under U.S.S.G. § 2D1.1(b)(12) based on a finding that Alvarez-Carvajal maintained a premises for the purpose of manufacturing or distributing a controlled substance. The district court applied another enhancement that further increased his total offense level by two levels under U.S.S.G § 3C1.1 based on a finding that Alvarez-Carvajal obstructed justice through his testimony at trial. On appeal, Alvarez-Carvajal challenges the application of both enhancements to his sentence. We now affirm the district court.

Affirmed

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7th Circuit Court of Appeals

Case Name: Cristian Avila de la Rosa v. Merrick B. Garland

Case No.: 20-1956

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

Focus: Immigration – Removal Order

Cristian Avila de la Rosa received a procedurally defective Notice to Appear for his immigration removal proceedings, and (unlike many others) he made a timely objection to that Notice. The immigration judge, however, disregarded Avila’s objection, and the Board of Immigration Appeals thereafter insisted that Avila was not entitled to relief unless he could demonstrate prejudice from the defective Notice. The Board erred in doing so; we thus grant Avila’s petition for review and remand for further proceedings.

Petition granted. Cause remanded
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7th Circuit Court of Appeals

Case Name: Anniken Prosser v. Xavier Becerra

Case No.: 20-3070

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

Focus: Medicare Part B Coverage – Standing to Sue

Anniken Prosser suffers from an aggressive brain cancer called glioblastoma multiforme. To treat her disease, Prosser uses a promising electric field treatment called tumor treating fields therapy. She will receive this therapy for the rest of her life. To pay for the therapy, Prosser enrolled in the supplemental insurance program within Medicare Part B. She files a benefits claim with Medicare for each period she receives TTF therapy. Medicare denied coverage for the treatment period January to April 2018. Though Prosser received the therapy and owed nothing out of pocket, the denial left the supplier of the treatment, Novocure, Inc., with the bill. Prosser challenged this denial by availing herself of Medicare’s multilayer appeals process, losing at each level and eventually reaching federal court.

The district court dismissed Prosser’s claim for Medicare Part B coverage, holding that she has suffered no injury-infact sufficient to satisfy Article III’s standing requirement. We agree. Prosser received—and continues to receive—the TTF therapy. She faces no financial liability for the treatment period Medicare denied coverage. And any future financial risk is too attenuated from the denial of the past coverage at issue here and far too speculative to establish standing. We therefore lack authority to hear Prosser’s claim and affirm the dismissal of her complaint.

Affirmed
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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: Petitioner v. Amy Jean Trevino

Case No.: 2019AP379

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

Focus: Court Error – Temporary Restraining Order and Harassment Injunction

Susan appeals an order vacating a temporary restraining order (“TRO”) and dismissing her petition for a harassment injunction against Amy Trevino. Susan argues that the circuit court erred by: (1) concluding that Susan could obtain the same relief in family court; and (2) dismissing the petition under a “defacto” summary judgment standard. We affirm the order.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Curtis Von Brown

Case No.: 2019AP1077-CR

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

Focus: Ineffective Assistance of Counsel

Curtis Von Brown appeals a judgment convicting him of one count of first-degree reckless homicide with use of a dangerous weapon, as a party to a crime, and one count of unlawfully possessing a firearm as a convicted felon. Brown also appeals an order denying his postconviction motion. Brown argues that: (1) his trial counsel ineffectively represented him by failing to call his cousin Robert Farrow as a witness at trial; (2) his trial counsel ineffectively represented him by failing to fully investigate and adequately argue to the jury potential inconsistencies in video evidence; and (3) the circuit court’s findings of fact during the postconviction motion hearing were clearly erroneous. Upon review, we affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Jedadiah Jordan Doyle

Case No.: 2019AP2162-CR

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

Focus: Court Error – Affirmative Defense

Jedadiah Doyle appeals a judgment, entered upon a jury’s verdicts, convicting him of repeated sexual assault of the same child, with at least three violations constituting first-degree sexual assault, and obstructing an officer, contrary to WIS. STAT. §§ 948.025(1)(b) and 946.41(1) (2019-20), respectively. Doyle argues that the circuit court erred by denying his request for an in camera review of the victim’s Child Protective Services (“CPS”) records and that the failure to do so prevented him from presenting a complete defense. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Ronald Lee Gilbert

Case No.: 2019AP2182-CR

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

Focus: Ineffective Assistance of Counsel

Ronald Lee Gilbert appeals from a judgment of conviction following a jury trial for trafficking of a child, second-degree sexual assault of a child, and intentional child abuse. He also appeals from an order denying relief after we reversed and remanded this case for an evidentiary hearing on ineffective assistance of counsel.

We now reverse and remand for a new trial. As discussed below, we conclude that trial counsel was ineffective for failing to challenge inaccurate cell phone data evidence, making derogatory closing argument remarks, including referring to Gilbert as a “scumbag,” and, to a lesser extent, failing to impeach the State’s two key witnesses.

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WI Court of Appeals – District I

Case Name: WGLB Scholarship in Memory of Joel J. Kinlow, Inc., v. City of Milwaukee

Case No.: 2019AP2352

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

Focus: Statutory Interpretation – Recovery of Unlawful Taxes

The City of Milwaukee appeals a non-final order of the circuit court denying its motion to dismiss the action filed by WGLB Scholarship in Memory of Joel J. Kinlow, Inc. (WGLB) pursuant to WIS. STAT. § 74.35 (2019-20), seeking to recover an allegedly unlawful property tax imposed by the City for the 2018 tax year. Because WGLB failed to timely pay its March installment payment, we conclude that it has not met the statutory requirements to pursue its claim under § 74.35. Therefore, we reverse the circuit court’s order and remand with directions to dismiss WGLB’s complaint.

Recommended for Publication

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Deandre Simone Manns

Case No.: 2020AP172-CR; 2020AP173-CR

Officials: Brash, P.J., Graham and White, JJ.

Focus: Ineffective Assistance of Counsel

Deandre Simone Manns appeals judgments of conviction entered after he pled guilty to third-degree sexual assault in one case and intimidation of a victim as a habitual offender in a second case. He also appeals an order denying postconviction relief in both cases. We conclude that the two cases were properly joined for trial, severance was not required, and Manns’s trial counsel was not ineffective for failing either to oppose joinder or to seek severance. Accordingly, we affirm the judgments and the postconviction order.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Juan Ramone Camacho

Case No.: 2020AP265-CR

Officials: Dugan, Graham and White, JJ.

Focus: Abuse of Discretion – Admission of Evidence

Juan Ramone Camacho appeals his judgment of conviction for second-degree sexual assault of a child. He argues that he is entitled to a new trial because the trial court erroneously admitted DNA test results including Camacho as a potential father of the child conceived by his fifteen-yearold niece and a related statistic indicating that it was 700 million times more likely that Camacho, instead of another unrelated male, was the father. We conclude that the trial court did not erroneously exercise its discretion in admitting this evidence, and we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Phillip Dewayne Peters

Case No.: 2020AP471-CR

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

Focus: Postconviction Relief – DNA Testing

Phillip Dewayne Peters appeals from a judgment convicting him of criminal trespass and second-degree sexual assault and an order of the circuit court denying his motion requesting the court to order additional DNA testing pursuant to WIS. STAT. § 974.07 (2019-20). We conclude that it is not reasonably probable that Peters would not have been prosecuted or convicted, or that the outcome of the proceedings would have been more favorable, if the DNA testing Peters now requests would have been conducted. Accordingly, Peters has not met the requirements of § 974.07(7) for the court to order either mandatory or discretionary testing and, therefore, we affirm.

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WI Court of Appeals – District III

Case Name: Florence County v. P.G.,

Case No.: 2020AP966

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

Focus: Sufficiency of Evidence – Guardianship and Protective Placement Orders

P.G. appeals orders establishing guardianships of his person and his estate, as well as an order for his protective placement. P.G. argues the guardianship and protective placement orders must be reversed because the circuit court failed to find—and the evidence did not support a finding—that his needs could not be met through less restrictive means. P.G. alternatively argues that the order establishing a guardianship of his estate must be reversed because he previously executed a financial durable power of attorney that rendered the guardianship unnecessary. We reject P.G.’s arguments and affirm.

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WI Court of Appeals – District III

Case Name: FAWD, LLC, v. Bernadette R. Fisher Trust, et al.,

Case No.: 2020AP1074

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

Focus: Easement

FAWD, LLC, appeals the circuit court’s dismissal of its claims for entitlement to an easement. Specifically, FAWD claims that the court erred by determining that it was not was entitled to an easement of necessity or an easement by implication (or both) in order to provide driveway access and utility service to its landlocked property over adjoining property owned by Steven and Lori Lins (the Linses), and then across the Bernadette R. Fisher Trust (the Fisher Trust) property that adjoined the Linses’ property.

The circuit court dismissed FAWD’s claims upon the Linses’ motion for summary judgment. The court concluded that the severance of FAWD’s property from Government Lot six in 1944 did not create the landlocked condition as to Government Lot five, as the entirety of Government Lot six had already been severed from the entirety of Government Lot five in 1932. Under such circumstances, FAWD failed to meet one of the elements for an easement of necessity—common ownership of the proposed servient and dominant estates at the time of the severance that created the landlocked condition. Additionally, the court determined that FAWD had not shown any evidence of a prior use of a pathway which continued so long and was so obvious or manifest as to show it was meant to be permanent, thus defeating its claim for an easement by implication. We agree with the court’s conclusions and affirm.

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WI Court of Appeals – District III

Case Name: Mary Nies, et al., Probate Services, LLC, et al.,

Case No.: 2020AP1411

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

Focus: Estate – Personal Representative

Mary Nies and Kay Nies-Toren, two of the six heirs to the Estate of Lois M. Nies, appeal from a final order denying their petition to have the circuit court order certain directions to the Estate’s personal representative. Mary and Kay argue that the circuit court erred by failing to order the personal representative to have an independent forensic investigation conducted into: (1) the sale of Lois’s farmland real estate; (2) the deposit of rental property proceeds payable to the Estate; (3) a life insurance policy paid as a result of their father Earl Nies’s death a few years earlier; and (4) the manner in which $1,050,100 of Lois’s cash was located and provided to the Estate. They also claim the court erred by failing to order the personal representative to produce the will of Earl Nies. Lastly, Mary and Kay argue the Hanaway Ross Law Firm (Hanaway Ross) should be removed as attorneys for the Estate. We reject all of Mary and Kay’s arguments and affirm.

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WI Court of Appeals – District III

Case Name: Eau Claire County v. J.M.P.

Case No.: 2020AP2014-FT

Officials: STARK, P.J.

Focus: Prisoner – Involuntary Commitment and Medication

Jordan appeals an order extending his involuntary commitment under WIS. STAT. ch. 51 and an order for involuntary medication and treatment. Jordan contends reversal is warranted because the circuit court failed to “make specific factual findings with reference to the subdivision paragraph of WIS. STAT. § 51.20(1)(a)2. on which the recommitment [was] based,” as required by Langlade County v. D.J.W., 2020 WI 41, ¶3, 391 Wis. 2d 231, 942 N.W.2d 277. Jordan also argues Eau Claire County failed to meet its burden to prove that he is dangerous.

We agree with Jordan that the circuit court failed to make specific factual findings with respect to the subdivision paragraph of WIS. STAT. § 51.20(1)(a)2. on which his recommitment was based, as required by D.J.W. We therefore reverse the order extending Jordan’s commitment and the associated order for involuntary medication and treatment.

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WI Court of Appeals – District III

Case Name: Outgamie County v. X.Z.B.,

Case No.: 2020AP2058

Officials: STARK, P.J.

Focus: Prisoner – Involuntary Commitment and Medication

Xander appeals orders entered under WIS. STAT. ch. 51 extending his involuntary commitment and subjecting him to involuntary medication and treatment.  Xander argues the evidence was insufficient to support the circuit court’s conclusion that he is dangerous. In response, Outagamie County argues this appeal is moot because the orders in question have expired. In the alternative, the County argues the evidence was sufficient to support the court’s determination of dangerousness.

Assuming without deciding that this appeal is moot, we nevertheless conclude that it falls within multiple exceptions to the mootness doctrine, and we therefore choose to address the merits of Xander’s arguments. As explained in greater detail below, we agree with Xander that the evidence was insufficient to support the circuit court’s finding of dangerousness under WIS. STAT. § 51.20(1)(a)2.c. That subdivision paragraph required the County to prove that there was a “substantial probability” of physical impairment to Xander or to other individuals. Id. A “substantial probability” does not exist under § 51.20(1)(a)2.c. if the subject individual “may be provided protective placement or protective services under [WIS. STAT.] ch. 55.”

It is undisputed that at all times relevant to this appeal, Xander was subject to a WIS. STAT. ch. 55 protective placement. The County did not, however, introduce sufficient evidence at the extension hearing to prove, by clear and convincing evidence, that the ch. 55 exclusion in WIS. STAT. § 51.20(1)(a)2.c. did not apply to Xander. Accordingly, the County failed to prove that Xander was dangerous under that subdivision paragraph. We therefore reverse the order extending Xander’s WIS. STAT. ch. 51 involuntary commitment, as well as the associated order for involuntary medication and treatment.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. M.R.K.

Case No.: 2021AP141

Officials: BRASH, P.J.

Focus: Termination of Parental Rights

M.R.K. appeals the order of the trial court terminating his parental rights to J.K. He argues that the trial court erred in entering a default judgment against him after he failed to appear at a hearing on the State’s petition for the termination of his parental rights, and that his motion to vacate the default judgment should not have been denied. We disagree, and therefore affirm.

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WI Court of Appeals – District II

Case Name: Tina Trahan, et al., v. Albert J. Hinton

Case No.: 2020AP35

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

Focus: Easement

This action involves the interpretation of a ten-foot lake easement (the easement) granted to Albert Hinton in 1973. Tina Trahan, a current owner of the servient estate, and Stone Manor Condominium Association, Inc. argue that, as a matter of law, a pier is not allowed under the easement. Stone Manor challenges the trial court’s finding on partial summary judgment that the easement implicitly allowed for some sort of pier. The court held that a material question of fact existed as to whether the Hintons’ pier complied with the terms of the easement. Following a four-day trial, the jury found that the Hintons’ pier was reasonable and that the Hintons had not committed a trespass or a nuisance in the use of the easement. Stone Manor appeals from the final judgment in favor of the Hintons. The Hintons cross-appeal the court’s denial of their claim preclusion and prescriptive easement arguments.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Avery L. Applewhite

Case No.: 2020AP683-CR

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

Focus: Plea Withdrawal – Ineffective Assistance of Counsel

Avery L. Applewhite appeals from a judgment of conviction and an order denying his postconviction motion. He asserts that the circuit court erred in denying his request for plea withdrawal, which was based on alleged ineffective assistance of counsel. He contends his trial counsel performed ineffectively by not moving to dismiss the charges against him on the ground that his constitutional right to a speedy trial was violated. We affirm.

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WI Court of Appeals – District II

Case Name: Peter Long, et al., v. Rick A. Weber, et al.,

Case No.: 2020AP1003

Officials: NEUBAUER, C.J.

Focus: Damages

Peter Long and PJL Properties, LLC (collectively PJL) appeal from a judgment of the trial court awarding double damages and attorney fees to Rick A. Weber and Brenda J. Weber in a landlord-tenant dispute. We conclude that the court properly determined that PJL wrongfully withheld portions of the Webers’ security deposit and properly awarded attorney’s fees based on PJL’s violation. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. T.G.,

Case No.: 2021AP351

Officials:

Focus: Abuse of Discretion – Jurisdiction 

T.G. appeals from a juvenile court order waiving him into adult court. Whether to waive jurisdiction, once prosecutive merit is found, is within the discretion of the juvenile court. Because the court did not err in finding prosecutive merit or erroneously exercise its discretion in waiving jurisdiction, we affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Jeffrey L. Moeser

Case No.: 2019AP2184-CR

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

Focus: Suppression of Evidence – Blood Test

Jeffrey Moeser appeals a judgment convicting him of operating while intoxicated, sixth offense. See WIS. STAT. § 346.63(1)(a) (2019-20). He contends that the results from chemical testing of his blood should have been suppressed because the affidavit in support of the search warrant authorizing the blood draw was not sworn to under oath by the affiant police officer, in violation of the United States and Wisconsin constitutions. We conclude that the affidavit satisfied the requirement that search warrants be supported by oath or affirmation, and therefore affirm.

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WI Court of Appeals – District IV

Case Name: Vincent Foreman-Ante, et al., v. Edgerton School District, et al.,

Case No.: 2020AP482

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

Focus: Governmental Immunity

Vincent Foreman-Ante participated in a psychology class activity at Edgerton High School. As a part of that activity, Vincent was instructed by a teacher to wear a blindfold over his eyes and to move across the school fieldhouse with the assistance of another student who was to give verbal cues to Vincent. Vincent was injured during the activity when he collided with a wall.

Vincent and his parents brought this action against the Edgerton School District and its liability insurer, Emcasco Insurance Company, in the Rock County Circuit Court alleging that the negligence of Vincent’s teacher caused Vincent’s injuries. The School District moved for summary judgment, arguing that it is entitled to governmental immunity under WIS. STAT. § 893.80(4) (2019- 20), and Vincent argued in response that the known danger exception to governmental immunity applies in these circumstances. The circuit court denied the School District’s motion in an oral ruling and in a written order. The circuit court did not explicitly grant summary judgment to Vincent in its oral ruling or in a written order. Nonetheless, in its oral ruling on the School District’s summary judgment motion, the circuit court stated: “I believe the [known danger] exception applies here. There is no governmental immunity, and I am denying the motion for summary judgment.” We conclude that the circuit court intended to grant summary judgment in favor of Vincent on the issue of governmental immunity.

The School District filed a petition for leave to appeal, based on its request that we reverse the circuit court’s summary judgment decision and, instead, hold that the School District is entitled to governmental immunity. We granted the petition for leave to appeal. See WIS. STAT. § 809.50(3).

We affirm the circuit court’s denial of the School District’s motion for summary judgment because, based on the summary judgment materials, there are genuine issues of material fact concerning the School District’s claim of governmental immunity and concerning Vincent’s contention that the known danger exception to governmental immunity applies in these circumstances. It then follows that those same factual disputes require reversal of the circuit court’s ruling that the School District is not entitled to governmental immunity based on the known danger exception. We therefore remand this matter to the circuit court for further proceedings consistent with this opinion.

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WI Court of Appeals – District IV

Case Name: Wood County Department of Health Services v. P.R.,

Case No.: 2020AP947

Officials: KLOPPENBURG, J.

Focus: Court Error – Child Placement

P.R. appeals the circuit court’s order placing her daughter outside P.R.’s home. P.R. argues that the court’s following two findings are clearly erroneous: (1) that continued placement of the child in P.R.’s home was contrary to the child’s welfare; and (2) that the Wood County Department of Health Services made reasonable efforts to prevent the removal of the child from her home. The evidence in the record amply supports these findings. Accordingly, the order is affirmed.

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WI Supreme Court Digests

WI Supreme Court

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

Case No.: 2021 WI 67

Focus: Divorce – Marital Settlement Agreement

Kathy Siech and Paul Schwab divorced in 1992. As part of the divorce judgment, the circuit court incorporated their marital settlement agreement, in which Paul promised to pay Kathy half of his pension “when and if” that benefit first became available to him. But when Paul first received his pension nearly 21 years later, he refused to pay Kathy her share. Kathy sought to judicially enforce their agreement via a contempt order, to which Paul responded that her action was barred by a 20-year statute of repose, Wis. Stat. § 893.40 (2019–20). The circuit court disagreed and concluded that, under Johnson v. Masters, 2013 WI 43, 347 Wis. 2d 238, 830 N.W.2d 647, it had the authority to order Paul to comply with the settlement agreement. The court of appeals reversed that order, concluding that § 893.40 barred Kathy’s action. We agree with the circuit court that Johnson v. Masters is instructive. Accordingly, § 893.40 does not bar Kathy’s action because it was impossible for Paul to perform on his promise——and therefore for Kathy to enforce that promise——until after the statutory period of repose had run. We therefore reverse the court of appeals’ decision and reinstate the circuit court’s order.

Reversed

Concur:

Dissent: ZIEGLER, C.J., filed a dissenting opinion, in which REBECCA GRASSL BRADLEY and HAGEDORN, JJ., joined. REBECCA GRASSL BRADLEY, J., filed a dissenting opinion.
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WI Supreme Court

Case Name: Cheyne Monroe v. Chad Chase

Case No.: 2021 WI 66

Focus: Malicious Prosecution Action

This case is about the tort of malicious prosecution. Our focus is on the third element of a malicious-prosecution action, the “favorable termination” element, wherein a malicious-prosecution plaintiff must prove that the prior proceeding was terminated in his or her favor. Our task is to decide whether Cheyne Monroe’s complaint can survive a motion to dismiss when her complaint relies upon Chad Chase’s withdrawal of the prior proceeding to satisfy the favorable-termination element.

The circuit court dismissed Monroe’s complaint for failure to state a claim, concluding that the complaint failed to establish that the prior proceeding was terminated in her favor. Relying on Pronger v. O’Dell, 127 Wis. 2d 292, 379 N.W.2d 330 (Ct. App. 1985), the circuit court ruled that when a party brings a lawsuit and then withdraws it——prior to an adjudication of the merits——that withdrawal can never satisfy the favorable termination element of a malicious-prosecution action. The court of appeals certified the appeal to this court, pursuant to Wis. Stat. § (Rule) 809.61, and posed the question as “whether the malicious prosecution defendant’s [withdrawal] of a prior proceeding can ever satisfy the third element of a malicious prosecution claim——that the prior proceeding terminated in the malicious prosecution plaintiff’s favor.”

We reverse the order of the circuit court because a withdrawal of a prior proceeding may satisfy the favorable termination element of a malicious-prosecution action. We also adopt the approach of the Restatement (Second) of Torts § 674 cmt. j (1977), which is consistent with our cases and focuses on the circumstances of the termination to determine whether it was favorable. We remand this case to the circuit court to apply the analysis set forth in this opinion.

Reversed and remanded

Concur:

Dissent:
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Supreme Court Digests

United States Supreme Court

Case Name: United States, et al., v. Arthrex, Inc., et al.,

Case No.: 19-1434; 19-1452; 19-1458

Focus: Statutory Interpretation – Appointments Clause – Board Authority

The validity of a patent previously issued by the Patent and Trademark Office can be challenged before the Patent Trial and Appeal Board, an executive tribunal within the PTO. The Board, composed largely of Administrative Patent Judges appointed by the Secretary of Commerce, has the final word within the Executive Branch on the validity of a challenged patent. Billions of dollars can turn on a Board decision.

Under the Constitution, “[t]he executive Power” is vested in the President, who has the responsibility to “take Care that the Laws be faithfully executed.” Art. II, §1, cl. 1; §3. The Appointments Clause provides that he may be assisted in carrying out that responsibility by officers nominated by him and confirmed by the Senate, as well as by other officers not appointed in that manner but whose work, we have held, must be directed and supervised by an officer who has been. §2, cl. 2. The question presented is whether the authority of the Board to issue decisions on behalf of the Executive Branch is consistent with these constitutional provisions.

Vacated and remanded

Dissenting: GORSUCH, J., filed an opinion concurring in part and dissenting in part. BREYER, J., filed an opinion concurring in the judgment in part and dissenting in part, in which SOTOMAYOR and KAGAN, JJ., joined. THOMAS, J., filed a dissenting opinion, in which BREYER, SOTOMAYOR, and KAGAN, JJ., joined as to Parts I and II.

Concurring: GORSUCH, J., filed an opinion concurring in part and dissenting in part. BREYER, J., filed an opinion concurring in the judgment in part and dissenting in part, in which SOTOMAYOR and KAGAN, JJ., joined.
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United States Supreme Court

Case Name: National Collegiate Athletic Association v. Shawne Alston, et al.,

Case No.: 20-512; 20-520

Focus: Sherman Antitrust Act – Immunity

In the Sherman Act, Congress tasked courts with enforcing a policy of competition on the belief that market forces “yield the best allocation” of the Nation’s resources. National Collegiate Athletic Assn. v. Board of Regents of Univ. of Okla., 468 U. S. 85, 104, n. 27 (1984). The plaintiffs before us brought this lawsuit alleging that the National Collegiate Athletic Association (NCAA) and certain of its member institutions violated this policy by agreeing to restrict the compensation colleges and universities may offer the student-athletes who play for their teams. After amassing a vast record and conducting an exhaustive trial, the district court issued a 50-page opinion that cut both ways. The court refused to disturb the NCAA’s rules limiting undergraduate athletic scholarships and other compensation related to athletic performance. At the same time, the court struck down NCAA rules limiting the education-related benefits schools may offer student-athletes—such as rules that prohibit schools from offering graduate or vocational school scholarships. Before us, the student-athletes do not challenge the district court’s judgment. But the NCAA does. In essence, it seeks immunity from the normal operation of the antitrust laws and argues, in any event, that the district court should have approved all of its existing restraints. We took this case to consider those objections.

Affirmed

Dissenting:

Concurring: KAVANAUGH, J., filed a concurring opinion.
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United States Supreme Court

Case Name: Goldman Sachs Group, Inc., et al., v. Arkansas Teacher Retirement Systems, et al.,

Case No.: 20-222

Focus: Securities-fraud Class Action – Class Certification

This case involves a securities-fraud class action filed by several pension funds against The Goldman Sachs Group, Inc., and three of its former executives (collectively, Goldman). Plaintiffs allege that Goldman maintained an artificially inflated stock price by making generic statements about its ability to manage conflicts—for example, “We have extensive procedures and controls that are designed to identify and address conflicts of interest.” Plaintiffs say that Goldman’s generic statements were false or misleading in light of several undisclosed conflicts of interest, and that once the truth about Goldman’s conflicts came out, Goldman’s stock price dropped and shareholders suffered losses.

Below, this securities-fraud class action proceeded in typical fashion. Plaintiffs sought to certify a class of Goldman shareholders by invoking the presumption endorsed by this Court in Basic Inc. v. Levinson, 485 U. S. 224 (1988). The Basic presumption is premised on the theory that investors rely on the market price of a company’s security, which in an efficient market incorporates all of the company’s public misrepresentations. For its part, Goldman sought to defeat class certification by rebutting the Basic presumption through evidence that its alleged misrepresentations actually had no impact on its stock price. After determining that Goldman had failed to carry its burden of proving a lack of price impact, the District Court certified the class, and the Second Circuit affirmed.

In this Court, Goldman argues that the Second Circuit erred twice: first, by holding that the generic nature of its alleged misrepresentations is irrelevant to the price impact inquiry; and second, by assigning Goldman the burden of persuasion to prove a lack of price impact. On the first question, the parties now agree, as do we, that the generic nature of a misrepresentation often is important evidence of price impact that courts should consider at class certification. Because we conclude that the Second Circuit may not have properly considered the generic nature of Goldman’s alleged misrepresentations, we vacate and remand for the Court of Appeals to reassess the District Court’s price impact determination. On the second question, we agree with the Second Circuit that our precedents require defendants to bear the burden of persuasion to prove a lack of price impact by a preponderance of the evidence. We emphasize, though, that the burden of persuasion should rarely be outcome determinative.

Vacated and remanded

Dissenting: SOTOMAYOR, J., filed an opinion concurring in part and dissenting in part. GORSUCH, J., filed an opinion concurring in part and dissenting in part, in which THOMAS and ALITO, JJ., joined.

Concurring: SOTOMAYOR, J., filed an opinion concurring in part and dissenting in part. GORSUCH, J., filed an opinion concurring in part and dissenting in part, in which THOMAS and ALITO, JJ., joined.
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United States Supreme Court

Case Name: Cedar Point Nursery, et al., v. Victoria Hassid, et al.,

Case No.: 20-107

Focus: Statutory Interpretation – 5th and 14th Amendments – Right to Access

A California regulation grants labor organizations a “right to take access” to an agricultural employer’s property in order to solicit support for unionization. Cal. Code Regs., tit. 8, §20900(e)(1)(C) (2020). Agricultural employers must allow union organizers onto their property for up to three hours per day, 120 days per year. The question presented is whether the access regulation constitutes a per se physical taking under the Fifth and Fourteenth Amendments.

Reversed and remanded

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

Concurring: KAVANAUGH, J., filed a concurring opinion.
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United States Supreme Court

Case Name: Mahanoy Area School District v. B.L.

Case No.: 20-255

Focus: 1st Amendment Violation

A public high school student used, and transmitted to her Snapchat friends, vulgar language and gestures criticizing both the school and the school’s cheerleading team. The student’s speech took place outside of school hours and away from the school’s campus. In response, the school suspended the student for a year from the cheerleading team. We must decide whether the Court of Appeals for the Third Circuit correctly held that the school’s decision violated the First Amendment. Although we do not agree with the reasoning of the Third Circuit panel’s majority, we do agree with its conclusion that the school’s disciplinary action violated the First Amendment.

Affirmed

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

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

Case Name: Patrick J. Collins, et al., v. Janet L. Yellen, et al.,

Case No.: 19-422; 19-563

Focus: Economic Recovery Act Violation – Separation of Powers

Fannie Mae and Freddie Mac are two of the Nation’s leading sources of mortgage financing. When the housing crisis hit in 2008, the companies suffered significant losses, and many feared that their troubling financial condition would imperil the national economy. To address that concern, Congress enacted the Housing and Economic Recovery Act of 2008 (Recovery Act), 122 Stat. 2654, 12 U. S. C. §4501 et seq. Among other things, that law created the Federal Housing Finance Agency (FHFA), “an independent agency” tasked with regulating the companies and, if necessary, stepping in as their conservator or receiver. §§4511, 4617. At its head, Congress installed a single Director, whom the President could remove only “for cause.” §§4512(a), (b)(2).

Shortly after the FHFA came into existence, it placed Fannie Mae and Freddie Mac into conservatorship and negotiated agreements for the companies with the Department of Treasury. Under those agreements, Treasury committed to providing each company with up to $100 billion in capital, and in exchange received, among other things, senior preferred shares and quarterly fixed-rate dividends. Four years later, the FHFA and Treasury amended the agreements and replaced the fixed-rate dividend formula with a variable one that required the companies to make quarterly payments consisting of their entire net worth minus a small specified capital reserve. This deal, which the parties refer to as the “third amendment” or “net worth sweep,” caused the companies to transfer enormous amounts of wealth to Treasury. It also resulted in a slew of lawsuits, including the one before us today.

A group of Fannie Mae’s and Freddie Mac’s shareholders challenged the third amendment on statutory and constitutional grounds. With respect to their statutory claim, the shareholders contended that the Agency exceeded its authority as a conservator under the Recovery Act when it agreed to a variable dividend formula that would transfer nearly all of the companies’ net worth to the Federal Government. And with respect to their constitutional claim, the shareholders argued that the FHFA’s structure violates the separation of powers because the Agency is led by a single Director who may be removed by the President only “for cause.” §4512(b)(2). They sought declaratory and injunctive relief, including an order requiring Treasury either to return the variable dividend payments or to re-characterize those payments as a pay down on Treasury’s investment. We hold that the shareholders’ statutory claim is barred by the Recovery Act, which prohibits courts from taking “any action to restrain or affect the exercise of [the] powers or functions of the Agency as a conservator.” §4617(f ). But we conclude that the FHFA’s structure violates the separation of powers, and we remand for further proceedings to determine what remedy, if any, the shareholders are entitled to receive on their constitutional claim.

Affirmed in part. Vacated in part. Reversed and remanded in part.

Dissenting: SOTOMAYOR, J., filed an opinion concurring in part and dissenting in part, in which BREYER, J., joined.

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

Case Name: Arthur Gregory Lange v. California

Case No.: 20-18

Focus: 4th Amendment – Warrantless Entry – Exigent Circumstance

The Fourth Amendment ordinarily requires that police officers get a warrant before entering a home without permission. But an officer may make a warrantless entry when “the exigencies of the situation” create a compelling law enforcement need. Kentucky v. King, 563 U. S. 452, 460 (2011). The question presented here is whether the pursuit of a fleeing misdemeanor suspect always—or more legally put, categorically—qualifies as an exigent circumstance. We hold it does not. A great many misdemeanor pursuits involve exigencies allowing warrantless entry. But whether a given one does so turns on the particular facts of the case.

Vacated and remanded

Dissenting:

Concurring: KAVANAUGH, J., filed a concurring opinion. THOMAS, J., filed an opinion concurring in part and concurring in the judgment, in which KAVANAUGH, J., joined as to Part II. ROBERTS, C. J., filed an opinion concurring in the judgment, in which ALITO, J., joined.
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United States Supreme Court

Case Name: Janet L. Yellen, et al., Confederated Tribes of the Chehalis Reservation, et al.,

Case No.: 20-543; 20-544

Focus: Statutory Interpretation – CARES Act – Indian Tribe

In March 2020, Congress passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act, 134 Stat. 281. Title V of the Act allocates $8 billion of monetary relief to “Tribal governments.” 134 Stat. 502, 42 U. S. C. §801(a)(2)(B). Under the CARES Act, a “Tribal government” is the “recognized governing body of an Indian tribe” as defined in the Indian Self-Determination and Education Assistance Act (ISDA). §§801(g)(5), (1). ISDA, in turn, defines an “Indian tribe” as “any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act[,] which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.” 25 U. S. C. §5304(e).

The Department of the Treasury asked the Department of the Interior, the agency that administers ISDA, whether Alaska Native Corporations (ANCs) meet that definition. Consistent with its longstanding view, the Interior Department said yes. The Treasury Department then set aside approximately $500 million of CARES Act funding for the ANCs. The question presented is whether ANCs are “Indian tribe[s]” under ISDA, and are therefore eligible to receive the CARES Act relief set aside by the Treasury Department. The Court holds that they are.

Reversed and remanded

Dissenting: GORSUCH, J., filed a dissenting opinion, in which THOMAS and KAGAN, JJ., joined.

Concurring:
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United States Supreme Court

Case Name: Hollyfrontier Cheyenne Refining, LLC, et al., v. Renewable Fuels Association, et al.,

Case No.: 20-472

Focus: Renewal Fuel Program – Extension

Congress requires most domestic refineries to blend a certain amount of ethanol and other renewable fuels into the transportation fuels they produce. But when it first adopted these mandates, Congress temporarily exempted small refineries across the board. Looking beyond that initial period, Congress authorized individual small refineries to apply for additional hardship “extensions” from the federal government “at any time.” The question before us is whether a small refinery that manages to comply with renewable fuel mandates in one year is forever forbidden from applying for an “extension” in any future year.

Reversed

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

Concurring:
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United States Supreme Court

Case Name: Transunion LLC v. Sergio L. Ramirez

Case No.: 20-297

Focus: Class Action – Standing to Sue

To have Article III standing to sue in federal court, plaintiffs must demonstrate, among other things, that they suffered a concrete harm. No concrete harm, no standing. Central to assessing concreteness is whether the asserted harm has a “close relationship” to a harm traditionally recognized as providing a basis for a lawsuit in American courts—such as physical harm, monetary harm, or various intangible harms including (as relevant here) reputational harm. Spokeo, Inc. v. Robins, 578 U. S. 330, 340–341 (2016).

In this case, a class of 8,185 individuals sued TransUnion, a credit reporting agency, in federal court under the Fair Credit Reporting Act. The plaintiffs claimed that TransUnion failed to use reasonable procedures to ensure the accuracy of their credit files, as maintained internally by TransUnion. For 1,853 of the class members, TransUnion provided misleading credit reports to third-party businesses. We conclude that those 1,853 class members have demonstrated concrete reputational harm and thus have Article III standing to sue on the reasonable-procedures claim. The internal credit files of the other 6,332 class members were not provided to third-party businesses during the relevant time period. We conclude that those 6,332 class members have not demonstrated concrete harm and thus lack Article III standing to sue on the reasonable-procedures claim.

In two other claims, all 8,185 class members complained about formatting defects in certain mailings sent to them by TransUnion. But the class members other than the named plaintiff Sergio Ramirez have not demonstrated that the alleged formatting errors caused them any concrete harm. Therefore, except for Ramirez, the class members do not have standing as to those two claims. Over Judge McKeown’s dissent, the U. S. Court of Appeals for the Ninth Circuit ruled that all 8,185 class members have standing as to all three claims. The Court of Appeals approved a class damages award of about $40 million. In light of our conclusion that (i) only 1,853 class members have standing for the reasonable-procedures claim and (ii) only Ramirez himself has standing for the two formatting claims relating to the mailings, we reverse the judgment of the Ninth Circuit and remand the case for further proceedings consistent with this opinion.

Reversed and remanded

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

Concurring:
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