Weekly Case Digests — August 21 to August 25, 2017

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Clayton Owens v. Chicago Board of Education

Case No.: 16-3607

Officials: WOOD, Chief Judge, and BAUER and EASTERBROOK, Circuit Judges

Focus: Sufficiency of Evidence

Owens contends that Miller discriminated against him because of his age (61 at the time) and his first suit. The district court granted summary judgment to the Board. 2016 U.S. Dist. LEXIS 119772 (N.D. Ill. Sept. 6, 2016). The claim of age discrimination failed, the court concluded, because no other older employee had fared poorly in Miller’s evaluations and because she had legitimate reasons to downrate Owens. A sheaf of documentary evidence shows that he dealt slowly, if at all, with serious problems such as the lack of hot water in the lavatories.

We agree with the district court that the record would not permit a reasonable trier of fact to conclude that Owens’s age influenced his “unsatisfactory” rating. See Ortiz v. Werner Enterprises, Inc., 834 F.3d 760 (7th Cir. 2016) (discussing the standards for the resolution of employment-discrimination claims). The judgment is affirmed to the extent it dismisses Owens’s age-discrimination claim but otherwise is reversed, and the case is remanded for trial.

Affirmed in part. Reversed and Remanded in part.

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7^th Circuit Court of Appeals

Case Name: Kevin Barnes v. Sears, Roebuck and Co.

Case No.: 16-3554

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

Focus: Court Error – Class Counsel Fees

Sears, the principal defendant/appellant in this class action suit, challenges the district court’s decision to award the plaintiffs’ attorneys (class counsel) 1.75 times the fees they originally had charged for their work on the case. The judge’s reasoning was that the case was unusually complex and had served the public interest and that the attorneys had obtained an especially favorable settlement for the class, even though the fees they sought—$4.8 million with the 1.75 multiplier, versus $2.7 million without—greatly exceeded the likely award of damages to the class.

The presumption is not irrebuttable, however, and in this case the extensive time and effort that class counsel had devoted to a difficult case against a powerful corporation entitled them to a fee in excess of the benefits to the class. But they failed to prove that a reasonable fee would exceed $2.7 million—the pre-multiplier figure sought by class counsel and already thrice the damages awarded the class. We therefore reverse the judgment of the district court and remand with directions to award $2.7 million—no more, no less—in fees to the class counsel.

Reversed and Remanded

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7^th Circuit Court of Appeals

Case Name: United States of America v. Michele DiCosola

Case No.: 16-3497

Officials: POSNER, MANION, and KANNE, Circuit Judges

Focus: Abuse of Discretion

By all accounts, Michele DiCosola was, until 2007, a legitimate business owner. But when the crash came, he engaged in loan fraud and tax fraud in order to make ends meet. While his personal story is unfortunate, it does not excuse his criminal conduct. Because we find no abuse of discretion in any of the district court’s rulings on appeal, we AFFIRM Michele DiCosola’s conviction and restitution orders.

With respect to his loan fraud conviction, DiCosola challenges the district court’s denial of his motion for a new trial on multiple grounds relating to the testimony of his accountant, John Cerami. He also raises an unrelated charge that the government did not correct a false statement by a government witness during cross‐examination. Napue v. Illinois, 360 U.S. 264, 269 (1957). Each of these arguments fails to demonstrate any abuse of discretion by the district court, and so we affirm the conviction.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Chad Hansmeier

Case No.: 16-3070

Officials: BAUER, FLAUM, and KANNE, Circuit Judges.

Focus: Motion to Suppress Evidence Denied

Police officers searched Chad Hansmeier’s home based on a search warrant and found various drug-dealing paraphernalia. He was arrested and charged. After the district court denied Hansmeier’s motions to suppress the evidence of the search, he pled guilty to conspiracy to distribute methamphetamine, heroin, and marijuana, while reserving the right to appeal the court’s denial of his motions to suppress.

On appeal, Hansmeier argues that the evidence must be suppressed because the affidavit filed in support of the search warrant did not establish probable cause and contained material falsehoods and omissions. We disagree and affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Frederick J. Grede, Liquidation Trustee of the Sentinel Liquidation Trust v. FCStone, LLC

Case No.: 16-1896; 16-1916

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

Focus: Bankruptcy – Post-Petition Transfer

This is our fifth appeal dealing with Sentinel. In a pair of cases decided in 2013 and 2016, we addressed the priority of a claim against the bankruptcy estate by the Bank of New York, Sentinel’s largest (but no longer secured) creditor. In re Sentinel Management Group, Inc., 728 F.3d 660 (7th Cir. 2013); Grede v. Bank of New York Mellon Corp. (In re Sentinel Management Group, Inc.), 809 F.3d 958 (7th Cir. 2016). Earlier this year, we affirmed the convictions and sentence of Sentinel’s former president and CEO, who was prosecuted for wire fraud and investment adviser fraud. United States v. Bloom, 846 F.3d 243 (7th Cir. 2017).

In Grede v. FCStone, LLC, 746 F.3d 244 (7th Cir. 2014) (FCStone I), the direct predecessor to this appeal, we considered among other issues a distribution of $297 million to a group of Sentinel customers a few days after Sentinel filed for bankruptcy protection in August 2007. Following a bench trial, the district court had allowed the trustee in bankruptcy to avoid this post-petition transfer under 11 U.S.C. § 549. We reversed, holding that relief under § 549 was unavailable to the trustee because the bankruptcy court had authorized the transfer. We rejected the trustee’s reliance on an October 2008 “clarification” through which the bankruptcy judge indicated that he had not intended to foreclose a § 549 avoidance action. Later statements by the judge about his subjective intentions could not, we concluded, defeat the plain language of the order authorizing the transfer. We remanded for further proceedings, which led to these new appeals.

Despite our holding in FCStone I that “the bankruptcy court authorized the post-petition transfer” and that the trustee “therefore cannot avoid the transfer,” 746 F.3d at 258, the trustee argued on remand that the bankruptcy judge’s October 2008 “clarification” was entitled to preclusive effect. Since FCStone did not appeal that “clarification” when it was made, the trustee argued, FCStone should be bound by it and collaterally estopped from arguing that the post-petition transfer was authorized. The district court rejected the trustee’s argument on this point, and we affirm on two independent grounds. First, pursuant to the mandate rule and the law-of the-case doctrine, the collateral estoppel theory was unavailable to the trustee on remand. Second, even if the theory were available despite our unambiguous holding in FCStone I, the bankruptcy judge’s “clarification” was not the sort of final ruling that could be entitled to preclusive effect.

For the reasons we have explained, we AFFIRM the district court’s judgment as to Counts I and V of the trustee’s operative Second Amended Complaint. We REVERSE with respect to Count III and REMAND with instructions to enter judgment for FCStone on that count and for further proceedings consistent with this opinion.

Affirmed in part. Reversed and Remanded in part.

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7^th Circuit Court of Appeals

Case Name: Venitia Hollins v. Regency Corporation and Hayes Batson

Case No.: 15-3607

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

Focus: Jurisdiction

Regency Corporation operated for‐profit cosmetology schools in 20 states. Each Regency Beauty Institute offered both classroom instruction and practical instruction in a “Regency Salon,” where members of the public could receive cosmetology services at low prices. Venitia Hollins was a Regency student, first at its Merrillville, Indiana, location, and later at its Tinley Park, Illinois, facility. In this case, Hollins asserts that the work she performed in the Salon was compensable for purposes of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201; she also asserts that Regency violated various state laws, including the Illinois Minimum Wage Law, 820 ILCS 105/1 et seq., the Illinois Wage Payment and Collection Act, 820 ILCS 115/1 et seq., and the Indiana Wage Payment Statute, Ind. Code § 22‐2‐5‐1 et seq., among many others.

Her complaint indicates that she wanted to bring her suit as a collective action under the FLSA and a class action under the state statutes, but the district court denied her motion conditionally to certify the FLSA action and never certified a class action under Federal Rule of Civil Procedure 23. Instead, it addressed the individual merits of her case on summary judgment and ruled in Regency’s favor. Hollins has appealed. She now argues that this court lacks jurisdiction over her own appeal, because the claims of other putative members of her collective and class actions are still before the district court. In the alternative, she contends that she and her fellow students should have been recognized as employees entitled to proper payment under the relevant statutes.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Kathleen Hagan, et al. v. Patrick J. Quinn, et al.

Case No.: 15-1791

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

Focus: Abuse of Discretion

Plaintiffs are former arbitrators for the Illinois Workers’ Compensation Commission. In 2011, plaintiffs and another arbitrator brought a due process action challenging the implementation of House Bill 1698, a workers’ compensation reform statute that had terminated their six‐ year appointments under prior law. The district court granted summary judgment for defendants, and we affirmed, concluding that plaintiffs failed to demonstrate a clearly established right that was violated by legislation ending their six‐ year terms as arbitrators. Dibble v. Quinn, 793 F.3d 803, 814 (7th Cir. 2015) (the “Due Process Suit”).

We review de novo the district court’s dismissal of plaintiffs’ First Amendment claims, accepting as true plaintiffs’ well‐pled factual allegations and drawing reasonable inferences in their favor. E.g., Simpson v. Brown County, 860 F.3d 1001, 1005 (7th Cir. 2017); Jakupovic v. Curran, 850 F.3d 898, 901 (7th Cir. 2017). We review for abuse of discretion the district court’s decision under 28 U.S.C. § 1367(c)(3) not to exercise supplemental jurisdiction over plaintiffs’ state‐law claims. Burritt v. Ditlefsen, 807 F.3d 239, 252 (7th Cir. 2015).

Plaintiffs offer no argument in their appellate brief to justify a departure from this usual course, and they certainly do not show that the district court abused its discretion. On the contrary, the court might well have abused its discretion if it had retained jurisdiction over a strictly state‐law claim in an area where important state policy goals may conflict. Whether a lawsuit like the Due Process Suit, filed by state policymakers, should qualify as protected activity under the Illinois Ethics Act, and whether these policymakers should be entitled to recover for their allegedly retaliatory discharge, are questions better left for Illinois courts to resolve. See § 1367(c)(1) (providing that district courts may decline to exercise supplemental jurisdiction over a claim that raises a “novel or complex issue of State law”). The judgment of dismissal is AFFIRMED.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Frankie N. Walker, SR., v. Guy Groot and Steven Schostak

Case No.: 14-2478

Officials: POSNER, MANION, and HAMILTON.

Focus: Court Error – Jury Instructions and Sufficiency of Evidence

The plaintiff in this case wants a new trial based on a jury instruction he agreed to and admission of two exhibits to which he did not object on the grounds he argues on appeal. The plaintiff waived at trial the arguments he raises on appeal, so we affirm the judgment of the district court.

On appeal, Walker raises two issues. First, he argues that the district court’s jury instructions on the First Amendment retaliation claim were erroneous. Second, he argues that the court erred in admitting privileged and prejudicial treatment records into evidence. We find that Walker has waived the issues he raises on appeal.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Chessie Logistics Company v. Krinos Holdings, Inc., et al.

Case No.: 16-4257

Officials: BAUER, POSNER, and HAMILTON, Circuit Judges.

Focus: Interstate Commerce Commission Termination Act of 1995

The plaintiff here is a rail carrier, Chessie Logistics, which claims it was injured when its neighbor Krinos damaged its railroad tracks. Chessie Logistics sued for trespass, negligence, and violation of a federal railroad statute. The district court dismissed the statutory claim and then granted summary judgment to defendants on Chessie’s claims for trespass and negligence. On appeal, Chessie seeks to reinstate its claim under the Interstate Commerce Commission Termination Act of 1995 and its late effort to transform its common-law negligence theory into a negligence per se theory based on an Illinois statute. This appeal asks us to decide two questions: first, whether § 10903 of the federal Act creates an implied right of action, and second, whether Chessie was entitled to change its negligence theory as late as it did. We agree with the district court that the answers are both no. On appeal, Chessie has not challenged the summary judgment on its common-law claims for trespass and negligence. We affirm judgment for defendants.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Equal Employment Opportunity Commission v. Union Pacific Railroad Company

Case No.: 15-3452

Officials: ROVNER and WILLIAMS, Circuit Judges, and CONLEY, District Judge.

Focus:  Abuse of Discretion

Union Pacific Railroad challenges the legal authority of the Equal Employment Opportunity Commission to continue an enforcement action after issuing a right to sue letter and subsequent resolution of the underlying charges of discrimination in a private lawsuit. The EEOC petitioned the district court to enforce its subpoena for Union Pacific’s employment records related to these charges. After denying Union Pacific’s motion to dismiss for lack of authority to maintain the investigation under Title VII and the EEOC’s own regulations, the district court granted the petition, prompting this appeal. While an issue of first impression in this circuit, similar challenges have created a split in authority between the Fifth Circuit in EEOC v. Hearst, 103 F.3d 462 (5th Cir. 1997), and more recently the Ninth Circuit in EEOC v. Federal Express Corporation, 558 F.3d 842 (9th Cir. 2009). Both the United States Supreme Court and this court have repeatedly recognized the EEOC’s broad role in promoting the public interest by preventing employment discrimination under Title VII, including its independent authority to investigate charges of discrimination, especially at a company‐wide level. Accordingly, we agree with the district court that neither the issuance of a right‐to‐sue letter nor the entry of judgment in a lawsuit brought by the individuals who originally filed the charges against Union Pacific bars the EEOC from continuing its own investigation.

While Union Pacific contends that the information sought extends beyond the allegations in the underlying charges, this argument is premised on the same overly narrow view of the role of the EEOC already rejected in this opinion above. Moreover, the information sought in the subpoena might well “cast light on the allegations against the employer,” thus satisfying the relevance requirement, or at least the district court did not abuse its discretion in so finding. Accordingly, the district court’s order enforcing the subpoena is AFFIRMED.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Franchie Farmer v. United States of America

Case No.: 15-1483

Officials: POSNER, WILLIAMS, and SYKES, Circuit Judges.

Focus: Ineffective Assistance of Counsel

In 2012 a jury convicted Franchie Farmer of armed bank robbery, see 18 U.S.C. § 2113(a) and (d), and brandishing a firearm during a crime of violence, see id. § 924(c)(1)(A)(ii). Farmer drove the getaway car and was not in the bank during the robbery. Her convictions were thus premised on an accomplice theory of liability as an aider or abettor under 18 U.S.C. § 2.

In 2014 the Supreme Court held that a § 924(c) conviction under an accomplice theory requires proof that the accomplice had “foreknowledge that his confederate [would] commit the offense with a firearm.” Rosemond v. United States, 134 S. Ct. 1240, 1249 (2014) (quotation marks omitted). The jury at Farmer’s trial was not instructed on a foreknowledge requirement for the § 924(c) charge. Understandably so; her trial predated Rosemond by two years. Nor did her counsel challenge the § 924(c) instruction, either at trial or in her direct appeal. See United States v. Farmer, 717 F.3d 559 (7th Cir. 2013) (affirming the district court on all counts).

Farmer did challenge the instruction, albeit obliquely, in a motion under 28 U.S.C. § 2255 after Rosemond was decided. She argued that her trial counsel was constitutionally ineffective for failing to object to the § 924(c) instruction. The district judge denied relief because Farmer failed to establish that she was prejudiced by her counsel’s failure to object.

Farmer’s argument has shifted somewhat on appeal. She now raises the Rosemond issue directly rather than through the prism of trial counsel’s ineffectiveness. Farmer procedurally defaulted this claim and must establish cause and actual prejudice to excuse the default. She hasn’t done so. The government presented plenty of evidence that Farmer had advance knowledge that a gun would be used in the robbery, so the Rosemond error was not grave enough to cause actual prejudice. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Winebow, Inc.,  v. Capitol-Husting Co.,

Case No.: 16-3682

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

Focus: Statutory of Interpretation

The sole question before us is whether an “intoxicating liquor” dealership, as defined by Wis. Stat. § 135.02(3)(b), includes one that involves wine. If it does not, then Winebow is free to cease doing business with Capitol-Husting and L’Eft Bank Wine without further ado. If wine dealerships are covered, however, then Winebow cannot unilaterally terminate its relationship with the Distributors without a showing of good cause. Because this is an appeal from the grant of a judgment on the pleadings and concerns the interpretation of a statute, our review is de novo. See Laborers Local 236, AFL-CIO v. Walker, 749 F.3d 628, 632 (7th Cir. 2014); Boyd v. Illinois State Police, 384 F.3d 888, 896 (7th Cir. 2004).

We respectfully ask the Wisconsin Supreme Court to answer the following question: Does the definition of a dealership contained in Wis. Stat. § 135.02(3)(b) include wine grantor dealer relationships? We invite the Court to reformulate this question and expand its inquiry to the extent it is necessary to resolve this case. The Clerk of this court is instructed to send the full record of the case to the state supreme court for its use in the consideration of this request. QUESTION CERTIFIED.

Question Certified

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7^th Circuit Court of Appeals

Case Name: Wine & Canvas Development, LLC, et al. v. Christopher Muylle, et al.

Case No.: 15-2088; 15-3658

Officials: BAUER and KANNE, Circuit Judges, and FEINERMAN, District Judge

Focus: Proper Venue

Wine and Canvas Development, LLC, Anthony Scott, Tamara McCracken, and Donald McCracken sued Christopher Muylle, Theodore Weisser, YN Canvas CA, LLC, Art Uncorked LLC, and Weisser Management Group LLC, bringing federal trademark and state law claims. Muylle brought several counterclaims, including one for abuse of process under Indiana law. Weisser defaulted, and it appears that Weisser and Muylle were the only members of the defendant LLCs, so practically speaking the case ultimately amounted to Plaintiffs against Muylle. Pretrial motions disposed of much of the case, and the jury found for Muylle on Plaintiffs’ trademark infringement and false designation of origin claims and on Muylle’s abuse of process counterclaim. Plaintiffs appeal, and we affirm.

On appeal, Plaintiffs cite Kusay for the proposition that filing a notice of appeal divests the trial court of jurisdiction, but they inexplicably fail to acknowledge that Kusay describes the exception to the rule invoked by the district court. Nor do Plaintiffs attempt to distinguish Kusay and Terket or argue that they were wrongly decided. This follows an unfortunate pattern in this litigation; as the district court noted, Plaintiffs “filed many motions to reconsider numerous court orders simply to reargue unaccepted arguments.” 2015 WL 5513461, at *2. While a party may argue in good faith for the inapplicability, modification, or reversal of existing authority, it nonetheless has a duty to acknowledge and grapple with such authority. Pretending the authority does not exist in hopes that the court will overlook it is never the appropriate course.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Caudill Seed & Warehouse Co., Inc., v. Mark D. Rose, et al.

Case No.: 16-4072

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

Focus: Bankruptcy – Unsettled Trustee Claims

MMR has appealed; Rose has not. (Matt Rose also purports to appeal, but he was not a party in the district court.) We agree with the district court’s conclusion. As the American Law Institute puts it: “When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.” Restatement (Second) of Judgments §27 (1982) (blackletter text). Whether the transfer of the 440 acres was a fraudulent conveyance was not actually litigated and decided in the bankruptcy. Instead the Trustee’s claim was settled. There was no judicial decision other than one approving the settlement—which the judge did on the ground that creditors were $100,000 to the good. The decision to approve the settlement does not resolve the question whether a fraudulent conveyance occurred. The closest the bankruptcy court came to resolving the subject was the decision in Caudill Seed’s favor denying Rose a discharge under §727(a)(2).

Release is an affirmative defense. Fed. R. Civ. P. 8(c)(1). Affirmative defenses must be raised in a party’s responsive pleading. Rose and MMR did not present the defense of release to the district court in this enforcement proceeding; their only defense was issue preclusion. So a potential defense of release was forfeited before the proceedings reached this court. Rose and MMR, who concocted a fraudulent transfer, tried to stiff Rose’s creditors, played games with the bankruptcy court in order to get a discharge without keeping the promise on which the discharge depended, and then thumbed their noses at the proceeding to enforce the reaffirmation agreement, have run out of chances.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Antwon Willis, et al.

Case No.: 16-2342; 16-2375

Officials: POSNER, EASTERBROOK, and MANION, Circuit Judges.

Focus: Sentencing Guidelines and Jury Instructions

Antwon Willis and Ericka Simmons were convicted of conspiracy to distribute 100 grams or more of heroin and sentenced to 235 months’ and 108 months’ imprisonment, respectively. They appeal their convictions, claiming there was an impermissible variance from the indictment. They also claim the jury pool failed to include a fair cross‐section of their community because only one of the 48 members of the venire was black. Simmons also challenges the district court’s jury instruction related to the amount of heroin involved in her offense. Finally, Simmons argues that the district court erred in enhancing her sentencing offense level for possession of a gun during the commission of a drug offense. We affirm

Affirmed

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7^th Circuit Court of Appeals

Case Name: Diane M. Hendricks, et al. v. Novae Corporate Underwriting, LTD.,

Case No.: 16-1712

Officials: POSNER, WILLIAMS, and SYKES, Circuit Judges.

Focus: Enforceable or Binding Settlement Arrangement

As a general rule, choses in action are freely alienable. But courts can—and indeed must—refuse to enforce certain contractual assignments on public-policy grounds. In Texas “assignments of choses in action that tend to increase and distort litigation” violate public policy and are invalid. State Farm Fire & Cas. Co. v. Gandy, 925 S.W.2d 696, 711 (Tex. 1996). The question in this case is whether that public policy prohibits enforcement of a settlement arrangement in which the defendant admitted liability, stipulated to an amount in damages, and assigned its claim against its insurer to the plaintiff; the plaintiff promised to seek the stipulated damages only from the insurer; and the insurer played no role in the settlement because it had no duty to defend. The defendant’s insurer, Novae Corporate Underwriting, Ltd., contends that this settlement-and assignment is neither enforceable nor binding against it. We agree. This type of settlement scheme is collusive and distorts the adversarial process. The assignment is invalid as a matter of Texas public policy.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Paul Murphy v. Deborah Rychlowski, et al.

Case No.: 16-1662

Officials: WOOD, Chief Judge, and RIPPLE and WILLIAMS, Cir‐ cuit Judges.

Focus: Erroneous Sex Registration

One cannot deny the stigmatizing effect of being erroneously placed on a registry. See Schepers, 691 F.3d at 914. Nonetheless, the second and third factors weigh in favor of our conclusion that the process that Murphy received was sufficient. The risk of erroneous registration is low—the statute is based upon one’s registration status, a status which re‐ quires a criminal conviction. While Murphy argues that the fact that the Department has reversed itself twice is evidence that the statute’s application is not straightforward, he misses the point. Mistakes can happen in any process. But under Wisconsin law, individuals who are placed on the registry have already had a procedurally safeguarded opportunity to contest their status, thereby protecting against an erroneous deprivation. And, this is not a case in which there is no process at all to challenge an erroneous listing on the registry. Rather, Murphy was able to do so by contacting the Department, whose address and phone number were clearly listed at the top of the notification letter he received in February 2009.

Furthermore, the government’s interest here cannot be understated, an assertion that Murphy seems to concede. See Appellant’s Br. at 40 (“The district court said, no doubt correctly, that the state interest behind sex offender registration pro‐ grams like Wisconsin’s was to protect people, especially children, from sex offenders.”). “Sex offenders are a serious threat in this Nation,” McKune v. Lile, 536 U.S. 24, 32 (2002), and registration programs, such as the one Wisconsin has enacted, are aimed at protecting the public. According to the Center for Sex Offender Management, about 12 to 24% of sex offenders reoffend. Center for Effective Public Policy, Fact Sheet: What You Need to Know, CENTER FOR SEX OFFENDER MANAGEMENT, http://www.csom.org/pubs/needtoknow_fs.pdf (last visited July 31 2017). Therefore, the government has a real and justified interest in ensuring that the public has the ability to access this registry information. This interest, coupled with the low probability of erroneous deprivation, lead us to conclude that the process Murphy received was constitutionally adequate.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Robert Lee Stinson v. James Gauger, et al.

Case No.: 13-3343; 13-3346; 13-3347

Officials: WOOD, Chief Judge, and BAUER, POSNER, FLAUM, EASTERBROOK, MANION, KANNE, ROVNER, WILLIAMS, SYKES, and HAMILTON, Circuit Judges.

Focus: Sufficiency of Evidence

Robert Stinson spent twenty‐three years in jail for a murder he did not commit. No eyewitness testimony or fingerprints connected him to the murder. Two dentists testified as experts that Stinson’s dentition matched the teeth marks on the victim’s body, and a jury found Stinson guilty. After DNA evidence helped exonerate Stinson, he filed this civil suit against the lead detective and the two dentists alleging that they violated due process by fabricating the expert opinions and failing to disclose their agreement to fabricate. The district court denied the defendants’ motions for summary judgment seeking qualified immunity after finding that sufficient evidence existed for Stinson to prevail on his claims at trial.

We conclude that we lack jurisdiction to hear the defendants’ appeals of the denial of qualified immunity because those appeals fail to take the facts and reasonable inferences from the record in the light most favorable to Stinson and challenge the sufficiency of the evidence on questions of fact. As a consequence, Johnson v. Jones, 515 U.S. 304 (1995) precludes interlocutory review. We do have jurisdiction to consider the district court’s denial of absolute immunity to Johnson and Rawson. That denial was correct because Stinson’s claims focus on their conduct while the murder was being investigated, not on their trial testimony or trial testimony preparation. The qualified immunity appeals are DISMISSED, and the judgment of the district court is AFFIRMED with respect to its absolute immunity rulings.

Dismissed in part. Affirmed in part

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7^th Circuit Court of Appeals

Case Name: Virginia E. Mourning v. Ternes Packaging, Indiana, Inc.

Case No.: 16-1650

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

Focus: Sufficiency of Evidence

Virginia “Ginger” Mourning appeals the grant of summary judgment for her former employer, Ternes Packaging–Indiana, Inc., on her claims that Ternes fired her because she is a woman, in violation of her rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, and because she took medical leave that was protected under the Family and Medical Leave Act, 29 U.S.C. § 2615. Mourning challenges the district court’s determinations that she failed to submit evidence establishing a prima facie case for either claim or showing that Ternes’s reasons for her discharge were pretextual. We agree with the district court’s conclusions and affirm the judgment.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Dustin A. King v. Marion Circuit Court, et al.

Case No.: 16-3726

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

Focus: Abuse of Discretion and Title II Claim

We need not address the merits of King’s Title II claim; another issue controls this case’s outcome. The Marion Circuit Court is a division of the State of Indiana, so King’s suit is one against Indiana itself. See Will v. Michigan Department of State Police, 491 U.S. 58 (1989). Indiana has asserted sovereign immunity. And because sovereign immunity bears on whether a federal court may hear a case, we resolve it before considering the merits. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 64–65 (1996). The district court held that Indiana does not enjoy sovereign immunity because this case falls within the abrogation of that immunity sustained in Tennessee v. Lane, 541 U.S. 509 (2004). We disagree with that conclusion.

The Circuit Court exercised that discretion in King’s case, ultimately determining that mediation was not required. King admits that the Circuit Court offered to adjudicate his claims and to provide an in-court sign language interpreter at no cost to him. Such full judicial hearings have long been considered the gold standard of due process. See Marchant v. Pennsylvania R.R., 153 U.S. 380, 387 (1894); Mathews v. Eldridge, 424 U.S. 319, 333 (1976). King does not contend that the Marion Circuit Court treats deaf litigants unfairly or that deaf litigants encounter any barrier to litigation on a par with litigants who can hear. The Circuit Court’s invitation to litigate therefore afforded King full access to court. We have now run out of theories about how awarding King damages under Title II would protect anyone’s constitutional rights. King was invited to come to the Marion Circuit Court for resolution of his domestic-relations dispute. The Circuit Court therefore did not actually violate any right falling under Lane’s “fundamental access” umbrella. Nor could abrogating sovereign immunity avert future violations. King has not suggested that any constitutional right of access to court is under threat in Marion County. All of this leads to just one conclusion—that this case has no constitutional dimension at all. Title II therefore does not abrogate sovereign immunity here, and the Marion Circuit Court re- mains immune from this suit in federal court.

The judgment of the district court is reversed, and the case is remanded with instructions to dismiss without prejudice to raising a Title II claim in state court.

Reversed and Remanded

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7th Circuit Court of Appeals

Case Name: Joseph Doornbos v. City of Chicago, et al.,

Case No.: 16-1770

Officials:  BAUER, POSNER, and HAMILTON, Circuit Judges.

Focus: Abuse of Discretion and Jury Instructions

Plaintiff Joseph Doornbos was leaving a Chicago train station when a plainclothes police officer confronted him, grabbed him, and with the help of two other plainclothes officers, forced him to the ground. Doornbos was acquitted in a criminal trial for resisting arrest. He then filed this suit against the three officers and the City of Chicago for excessive use of force and malicious prosecution. Doornbos contends that Officer Williamson failed to identify himself as an officer and then used excessive force to tackle and subdue him. Officer Williamson claims that he properly identified himself as a police officer and that Doornbos fled when Williamson attempted to stop and frisk him. The case went to trial, and the jury returned a verdict in favor of the officer-defendants. On appeal, Doornbos argues that the district court erred in two ways: by admitting evidence that he had marijuana in his pocket at the time of the incident, and by improperly instructing the jury about investigatory Terry stops.

We find that the district court did not abuse its discretion by admitting the marijuana evidence. Although the marijuana was unknown to the officers at the time they used force against Doornbos, it was evidence that arguably tended to corroborate their account of Doornbos’s behavior.

The jury instructions on Terry stops, however, were inadequate. Over Doornbos’s objection, the court instructed the jury only on investigatory stops but not frisks. Yet Officer Williamson’s own testimony indicates that he was starting a frisk when he first approached Doornbos. His own testimony also makes clear that he did not have reasonable suspicion that Doornbos was armed and dangerous. Doornbos was entitled to have the jury know that the attempted frisk, which even the defense says produced the use of force, was unjustified. The court erred further during deliberations. The jury asked the judge whether plainclothes officers are required to identify themselves when they conduct a stop. The judge said no. We conclude that the answer is yes. In all but the most unusual circumstances, where identification would itself make the situation more dangerous, plainclothes officers must identify themselves when they initiate a stop. Because these errors were not harmless, we vacate the judgment for defendants and remand for a new trial.

Vacated and Remanded

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Frank Castro Lellie

Case No.: 2015AP2637-CR

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

Focus: Motion for Postconviction Relief Denied

Frank Lellie, pro se, appeals a judgment of conviction for one count of burglary and two counts of identity theft, all as party to a crime. He also appeals the denial of his motion for postconviction relief. We affirm

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WI Court of Appeals – District I

Case Name: Rosemary Merkel v. Sandra Jean Neault

Case No.: 2016AP528

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

Focus: Abuse of Discretion

Sandra Jean Neault appeals from a judgment in the amount of $98,782.40, entered by the trial court upon finding Neault liable for conversion, misrepresentation, unjust enrichment, and theft after Neault withdrew funds in the amount of $48,931.65 from a checking account that was held jointly by Neault and her mother, Rosemary Merkel, the respondent. Merkel asserts that she opened the account with Neault for purposes of convenience after she had moved in with Neault. However, Neault contends that Merkel told her the funds were a gift to her and her children, and she had a right to withdraw the funds since they were held in an account jointly owned by Neault and Merkel.

On appeal, Neault argues (1) that Merkel was incompetent at trial, and that the trial court erroneously exercised its discretion in relying on her testimony; (2) that the trial court erroneously exercised its discretion in admitting Neault’s deposition; (3) that the trial court erroneously exercised its discretion in precluding testimony regarding previous cash gifts to family members by Merkel; and (4) that the evidence in the record does not support the trial court’s findings. In contrast, Merkel contends that the evidence supports the trial court’s findings and that the court properly exercised its discretion in all of its rulings in this matter. We agree and affirm.

Merkel further asserts that this appeal is frivolous, and has filed a motion for fees and costs pursuant to WIS. STAT. RULE 809.25(3) (2015-16). 1 We agree and remand this matter to the trial court to determine the costs, fees, and reasonable attorney’s fees to be awarded to Merkel.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Montgomery Edward Walker

Case No.: 2016AP957

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

Focus: Ineffective Assistance of Counsel

Montgomery Edward Walker, pro se, appeals from an order of the circuit court that denied his postconviction motion without a hearing. Walker asserts that he is entitled to a Machner hearing and/or a new trial, based on claims of ineffective assistance of trial counsel and appellate counsel. We reject Walker’s arguments and affirm the circuit court.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Lonell Echols

Case No.: 2016AP1275-CR

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

Focus: Ineffective Assistance of Counsel

Lonell Echols, pro se, appeals the circuit court’s order denying his postconviction motion brought pursuant to WIS. STAT. § 974.06 Echols argues that he should be allowed to withdraw his guilty plea because he received constitutionally ineffective assistance from his trial counsel. We affirm.

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WI Court of Appeals – District I

Case Name: LIR Investments LLC, v. Steven Stokelbusch Insurance Agency, Inc., et al.

Case No.: 2016AP1386

Officials: Kessler, Brash and Dugan, JJ.

Focus: Unlawful Insurance Policy Cancellation

Wisconsin Mutual Insurance Company appeals an order granting declaratory judgment to Steven Stokelbusch, Stokelbusch Insurance Agency, Inc., and Westport Insurance Corporation (collectively, “Stokelbusch”). We affirm

The issue on appeal is whether Wisconsin Mutual’s cancellation of the October 23, 2013 policy in December 2013 was prohibited by WIS. STAT. § 631.36 as an unlawful midterm cancellation. Specifically, whether the October 23, 2013 policy was a new policy that had not been previously renewed pursuant to § 631.36(2)(c). The circuit court found that the policy was renewed and thus rendered Wisconsin Mutual’s cancellation of the policy an unlawful midterm cancellation under the statute. Wisconsin Mutual contends that this finding was erroneous because: (1) the circuit court equated the term “reissue”— the term used on the October 23, 2013 policy—with the term “renew”; (2) the effect of this equation will have devastating effects on the insurance industry; and (3) the court’s finding is contrary to the legislative intent behind § 631.36. We disagree.

Recommended for Publication

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Kou Thao

Case No.: 2016AP1758-CR

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

Focus: Breach of Plea Agreement

Kou Thao appeals a judgment of conviction for, among other things, second-degree intentional homicide. He also appeals an order denying his postconviction motion for resentencing. Thao contends the State breached its plea agreement with him by refusing at the sentencing hearing to concede the historical facts regarding Thao’s claimed use of imperfect self-defense during the fatal shooting for which he was prosecuted.

We conclude that even assuming the State breached the plea agreement, the breach was not material and substantial. The primary benefit Thao received from the plea agreement was a reduction in the available penalty as a result of the State’s agreement to reduce the charge from first-degree intentional homicide. Further, the agreement specifically allowed the State to argue for the maximum penalty on the reduced charge, and the agreement did not contain any specific directive regarding the effect of the statutory concession on the parties’ sentencing arguments. Consequently, we affirm.

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WI Court of Appeals – District III  

Case Name: State of Wisconsin v. Steven Martinez

Case No.: 2016AP1773-CR

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

Focus: Ineffective Assistance of Counsel

Steven Martinez appeals a judgment convicting him of disorderly conduct with a domestic abuse enhancer, misdemeanor bail jumping, and felony bail jumping. He also appeals an order denying his postconviction motion in which he alleged ineffective assistance of trial counsel. He argues his trial counsel was ineffective for three reasons: (1) counsel failed to strike juror S.Z. from the jury panel; (2) counsel failed to impeach witness J.G. with evidence of her fourteen criminal convictions; and (3) counsel failed to limit the State’s evidence used to prove the bail-jumping charges. Martinez contends he is entitled to a new trial due to the cumulative prejudice arising from these alleged deficiencies, and he requests a new trial in the interest of justice. We reject these arguments and affirm the judgment and order.

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WI Court of Appeals – District III

Case Name: State of Wisconsin Ex Rel. Jamie D. Jardine v. Dean F. Stensberg

Case No.: 2016AP2421

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

Focus: Violation of Due Process Rights

Jamie Jardine, pro se, appeals an order upholding the Parole Commission’s rejection of Jardine’s application for parole. He also appeals an order denying his motion for reconsideration. He argues: (1) the Commission violated his due process rights by relying on inaccurate factual predicates and failing to state with particularity the reasons for denying the application; (2) the Commission violated the ex post facto provisions of the United States and Wisconsin Constitutions by using laws that were not in effect at the time he committed his crimes; (3) the Commission’s decision was arbitrary and capricious; (4) the Commission improperly used the presentence investigation report (PSI) and Jardine’s medical records; and (5) the circuit court should have allowed him to call witnesses at the court proceeding to correct the Commission’s factual errors. We reject these arguments and affirm the orders.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Samuel A. Jones

Case No.: 2016AP1033-CR; 2016AP1034-CR

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

Focus: Sufficiency of Evidence and Ineffective Assistance of Counsel

On appeal, Jones first contends that the circuit court improperly admitted other acts evidence. He complains that the admission of such evidence violated the court’s pretrial ruling on the matter. Jones next contends that the circuit court erred in allowing a witness to testify about a matter on which she had no independent recollection. Again, this argument involves the testimony of Sturm. Jones next contends that his trial counsel was ineffective. He blames counsel for failing to strike a prospective juror who was allegedly antagonistic to the presumption of innocence. He also blames counsel for failing to call a witness. We consider each claim in turn. Finally, Jones contends that he presented newly discovered evidence warranting a new trial. This evidence consisted of an affidavit from a co-defendant named Carlton Williams who stated that Jones was at a hotel when he and Sturm went out and cashed a forged check on June 20, 2011. Williams made this affidavit after he had accepted a plea deal, which prevented him from being prosecuted for the identity theft committed on June 20, 2011.

Because Jones has not shown that D.G. was unfit to serve on the jury, trial counsel cannot be faulted for failing to strike him. See State v. Wheat, 2002 WI App 153, ¶14, 256 Wis. 2d 270, 647 N.W.2d 441 (failure to pursue a meritless legal issue is not deficient performance). Accordingly, we reject Jones’ first claim of ineffective assistance. Turning to the second claim of ineffective assistance, Jones blames trial counsel for failing to call an inmate named Deangelo Lobley as a witness. Jones submits that Lobley would have impeached the testimony of Darnell King, who was a witness for the prosecution. Again, we are not persuaded that Jones has demonstrated ineffective assistance of counsel. An attorney’s performance must be judged on the facts available to him or her at the time. State v. Goetsch, 186 Wis. 2d 1, 17, 519 N.W.2d 634 (Ct. App. 1994). Here, the only facts that counsel had available to him at the time of trial indicated that Lobley would provide evidence unfavorable to Jones, i.e., that he heard Jones confess his guilt. As a result, counsel did not perform deficiently by failing to call Lobley as a witness.

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WI Court of Appeals – District II

Case Name: Winnebago County v. C.S.,

Case No.: 2016AP1955

Officials: HAGEDORN, J.

Focus: Involuntary Medication Provision

C.S. appeals from an order extending his involuntary medication under WIS. STAT. § 51.61(1)(g) and an order denying his motion for postcommitment relief. He argues that § 51.61(1)(g) is unconstitutional because it allows prisoners to be involuntarily medicated without a finding of dangerousness. However, C.S. admits that he is no longer incarcerated—and therefore not subject to the challenged application of the statute. He nevertheless contends that we should exercise our discretion to address his claim. We decline and conclude the issue is moot.

In short, C.S. presents us an academic question, not a genuine complaint that the state of Wisconsin is violating his constitutional rights. Therefore, we dismiss the appeal as moot.

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WI Court of Appeals – District II

Case Name: Mary Carol Nortunen v. Al Bishop

Case No.: 2016AP2336

Officials: HAGEDORN, J.

Focus: Landlord Tenant – Eviction

Al Bishop appeals from his judgment of eviction. He claims that the circuit court erred in denying his motion to reopen the case after he consented to the eviction. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Wayne E. Hollins, Jr.

Case No.: 2016AP1117-CR; 2016AP1118-CR

Officials: Lundsten, P.J., Sherman and Kloppenburg, JJ.

Focus: Sentencing Modification Motion Denied

Wayne Hollins appeals an order denying his motion for sentence modification. He argues that a new factor, in the form of affidavits provided by his co-defendants, justifies a reduction of his sentence. We conclude that the trial court properly exercised its discretion in determining that Hollins did not demonstrate a new factor warranting sentence modification. We affirm

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WI Court of Appeals – District IV

Case Name: Savvy Woman Secrets v. A Clean Carpet LLC, et al.

Case No.: 2017AP187

Officials: KLOPPENBURG, P.J.

Focus: Sufficiency of Evidence

Quintus Burks, p/k/a A Clean Carpet LLC, appeals the judgment finding him liable for damages from the confusion over the cancellation of a contract. Burks contends that the judgment is not supported by the evidence. Because the respondent, Savvy Woman Secrets, has not filed a brief despite orders from this court, I summarily reverse.

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WI Court of Appeals – District IV

Case Name: Dodge County v. L.A.S.

Case No.: 2017AP302

Officials: KLOPPENBURG, J.

Focus: Sufficiency of Evidence

L.A.S. appeals the circuit court’s order that extended his involuntary commitment. L.A.S. argues that the County failed to meet its burden of proof at trial because: (1) hearings to extend involuntary commitment under WIS. STAT. § 51.20(13)(g)3. are subject to the procedural requirements detailed in WIS. STAT. § 51.20(9), and (2) the County’s sole reliance on the testimony of a nurse-practitioner to prove that L.A.S. was mentally ill, a proper subject for treatment, and dangerous, did not satisfy the requirements of WIS. STAT. § 51.20(9). For the reasons below, I reject L.A.S.’s argument and affirm.

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WI Court of Appeals – District IV

Case Name: Monroe County Department of Human Services v. T.M

Case No.: 2017AP875; 2017AP876

Officials: KLOPPENBURG, J.

Focus: Termination of Parental Rights

T.M. seeks reversal of the orders terminating her parental rights to M.A.B. and M.B. T.M. argues that her due process rights were violated when she was found at trial to have abandoned her children based, in part, on a time period during which the County conditionally suspended T.M.’s parental visitation rights. More specifically, T.M.’s argument is that the circuit court’s application of WIS. STAT. § 48.415(1) violated her substantive due process rights for three reasons, which she states as follows: (1) the period of abandonment included the period during which the County suspended her visits with her children conditioned on terms that were impossible for her to meet; (2) the jury was allowed to “count toward [the] period of abandonment” the period of time in which the County conditionally suspended her visits with her children, but the jury would not have been allowed to count that period of time if the visits were suspended by court order; and (3) the County was not required to prove that it made reasonable efforts to assist T.M. in meeting the conditions, as “would have been the case had the [County] alleged the ground of continuing CHIPS pursuant to WIS. STAT. § 48.415(2).” For the reasons set forth below, I address and reject each reason as stated by T.M. and affirm.

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