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Weekly Case Digests — March 13-17, 2017

By: WISCONSIN LAW JOURNAL STAFF//March 17, 2017//

Weekly Case Digests — March 13-17, 2017

By: WISCONSIN LAW JOURNAL STAFF//March 17, 2017//

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WI Supreme Court

WI Supreme Court

Case Name: Wisconsin Carry, Inc. et al v. City of Madison

Case No.: 2017WI19

Focus: Authority to Regulate

Can the city of Madison prohibit passengers from bearing weapons on buses it operates?

“We hold today that the Local Regulation Statute, Wis. Stat. § 66.0409, has withdrawn authority from the City to regulate, either through its governing body or its sub-units (and without regard to the label it affixes to its regulation or manner of regulating), the subjects identified in the Local Regulation Statute in a manner that is more stringent than an analogous state statute. We also hold that the Concealed-Carry Statute, Wis. Stat. § 175.60, preempts the City’s authority to restrict a licensee’s right to carry concealed weapons on the City’s buses so long as the licensee complies with the statute’s requirements. Finally, we hold that neither the City nor any of its sub-units or employees may enforce the Rule to the extent it purports to prohibit carrying any knife or firearm (as defined by the Local Regulation Statute) or weapon (as defined by the Concealed-Carry Statute), so long as such carrying is not forbidden by (and is done in compliance with) the Vehicle Statute, Wis. Stat. § 167.30, the Concealed-Carry Statute, and all other statutes that may from time to time become applicable”

Reversed

Dissented: BRADLEY, ABRAHAMSON

Concurred:

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WI Supreme Court

Case Name: State of Wisconsin v. Thornon F. Talley

Case No.: 2017WI21

Focus: Ch. 980 Discharge Petition

In this review of a Chapter 980 petition for discharge, we consider whether “socializing more with peers,” “join[ing] a fitness group,” and increased communication from family members are changes from which a factfinder could determine Thornon F. Talley is no longer a sexually violent person. We conclude that these facts, which resulted in no change to the evaluating psychologist’s ultimate conclusion or overall risk assessment, are not enough to satisfy the statutory threshold for a discharge hearing set forth in Wis. Stat. § 980.09(2) (2011-12). We affirm the unpublished court of appeals decision, which affirmed the circuit court order denying Talley’s petition for a discharge hearing.

Affirmed

Dissented:

Concurred: Abrahamson, Bradley, Zieger, Gableman

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Erika Lisette Gutierrez

Case No.: 2014AP1983-CR

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

Focus: Plea Withdrawal

Erika Lisette Gutierrez appeals from a judgment of conviction, following a bifurcated criminal trial, for four counts of intentional physical abuse of a child with high probability of great bodily harm. She also appeals an order denying her postconviction motion for 1) withdrawal of her plea in the guilt phase and 2) a new trial on the question of mental responsibility.

Gutierrez argues that she is entitled to withdraw her plea for three reasons. First, because the trial court omitted required words from its warning—it warned that her plea could result in “deportation, exclusion or denial of naturalization” when the required statutory language is “deportation, the exclusion from admission to this country or the denial of naturalization.” WIS. STAT. 971.08(1)(c) (2015-16) (emphasis added). She argues that because the trial court failed to fully advise her of the deportation statute and because she will likely be deported as a result of her plea, she is entitled to plea withdrawal under State v. Negrete, 2012 WI 92, ¶23, 343 Wis. 2d 1, 819 N.W.2d 749.

Secondly, Gutierrez argues that her plea was not free, voluntary, and knowing because she was incorrectly advised by her trial counsel that if she pled and waived her right to a jury for the mental responsibility phase, the court would not view a hospital videotape of her repeatedly stopping her baby son from breathing. Gutierrez argues that this viewing, which counsel advised her would not happen, was an unwarned collateral consequence of her guilty plea that renders the plea involuntary under Brown, Riekkoff, and Woods.  Third, she also argues that this promise constituted ineffective assistance of counsel and that she would not have entered a plea had she known the court would view the videotape. As an alternative to her plea withdrawal arguments, she argues that she is entitled to a new trial in the interest of justice on the issue of mental responsibility because the verdict was against the greater weight of the evidence presented at trial. We disagree and affirm.

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WI Court of Appeals – District I

Case Name: A.T. v. L.T.-H

Case No.: 2015AP1446

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

Focus: Court Discretion – Harassment Injunction

L.T.-H., pro se, appeals an order issuing a harassment injunction against her. L.T.-H. argues that: (1) the circuit court misused its discretion in issuing the injunction; (2) the injunction violates her constitutional rights; (3) the circuit court lost competency to proceed because it improperly adjourned two injunction hearings; and (4) the circuit court erred by issuing a two-year injunction. We affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Christopher L. Swanson

Case No.: 2015AP1521

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

Focus: Ineffective Assistance of Counsel

Christopher Swanson appeals a judgment of conviction and an order denying postconviction relief. Swanson argues his trial attorney was ineffective by: (1) failing to move to sever three counts charging physical abuse of a child from other counts charging incest with a child and sexual assault of a child; (2) failing to move for dismissal of certain counts prior to trial; and (3) failing to move for substitution or recusal of the circuit court judge. We reject these arguments and affirm

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Earnest Lee Nicholson

Case No.: 2015AP2154-CR; 2015AP2155-CR

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

Focus: Domestic Violence Repeater Enhancer

Earnest Lee Nicholson appeals a judgment of conviction, following a jury trial, of one count of aggravated battery and one count of violating a no-contact order, both as a domestic violence offender and as a repeater. He also appeals an order denying his motion for postconviction relief. We affirm.

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WI Court of Appeals – District IV

Case Name: Rory J.D. Hart, et al v. ASFFH Corp. et al

Case No.: 2015AP2365

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

Focus: Breach of Contract – Consideration

Rory J. D. Hart initiated an action for breach of contract against ASFFH Corp. and Ted Derynda. Robert J. Adams also commenced an action against ASFFH Corp. and Derynda. The circuit court consolidated the two cases. After a trial to the court, the circuit court ruled in favor of Hart and Adams. On appeal, Derynda argues that the promissory notes are not binding contracts because there was no legally sufficient consideration. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Randolph Arthur Mantie

Case No.: 2015AP2443-CR

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

Focus: Motion to Suppress

Randolph Arthur Mantie appeals the order of the trial court denying his motion to suppress evidence from the stop of his vehicle and the judgment of conviction for OWI, eighth offense.1 Mantie acknowledges that the trial court’s factual findings were not clearly erroneous but contends that the trial court erred as a matter of law in deciding that the stop was supported by reasonable suspicion. Mantie presents a focused argument on a narrow issue, namely, that the trial court erred in determining that the officer had an objectively reasonable suspicion that Mantie was committing or about to commit a crime. Mantie bases his argument on the premise that he, not the officer, had the right-ofway at the intersection where the officer saw him stop abruptly.

The State counters that because Mantie concedes that the trial court’s factual findings were not clearly erroneous, the trial court’s legal conclusion that the officer had reasonable suspicion for the stop is correct. The trial court’s factual findings were that Mantie failed to stop for the stop sign on Courtland and North 37th Streets and then failed to proceed with reasonable caution across North 37th to Hopkins, violating both WIS. STAT. §§ 346.46(1) and (2) (2015-16). 2 The trial court expressly concluded, based on the court’s trip to view the intersection, review of the exhibits containing the officer’s dash cam video, photos and maps, and testimony of the officer and Mantie, that the officer traveling southbound on Hopkins had the right-of-way, not Mantie.

We agree with the State and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Arvelle Jerome Lockhart

Case No.: 2016AP10-CR; 2016AP11-CR

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

Focus: Voluntarily Plea – Incidents of Domestic Abuse

Arvell Jerome Lockhart appeals judgments convicting him of substantial battery, as a repeater, misdemeanor disorderly conduct, as a repeater, and felony intimidation of a victim. All counts were charged as incidents of domestic abuse. Lockhart also appeals the circuit court’s order denying his postconviction motion. Lockhart argues that: (1) his plea was not knowingly, intelligently, and voluntarily entered because the circuit court did not adequately inform him about the ramifications of the crimes being charged as incidents of domestic abuse under WIS. STAT. § 968.075 (2015-16);1 and (2) the crimes should not have been charged as incidents of domestic abuse because he did not share a residence with the victim. We affirm

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Randy Allen Lapp

Case No.: 2016AP116-CR

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

Focus: General Appeal – Ineffective Assistance of Counsel

Randy Allen Lapp appeals a judgment of the circuit court, following a jury trial, of one count of battery, one count of substantial battery with intent to cause bodily harm, and one count of victim intimidation. He also appeals the order denying his postconviction motion for relief. We affirrm

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Nathaniel Odel Alexander

Case No.: 2015AP2530-CR

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

Focus: Sufficiency of Evidence

Nathaniel Odel Alexander appeals from his judgment of conviction for intent to deliver heroin as party to the crime and from an order denying his motion for new trial. He claims that the evidence was insufficient to convict him, and the circuit court should have granted his motion for a new trial based on newly-discovered evidence. We disagree and affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Diamond J. Arberry

Case No.: 2016AP866-CR

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

Focus: Sentencing – Expungement

Diamond J. Arberry appeals from her judgment of conviction for retail theft and a postconviction order denying her motion seeking eligibility for expungement. As the determination of expungement must be made at sentencing, we affirm.

Recommended for publication

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WI Court of Appeals – District II

Case Name: Wisconsin Department of Workforce Development v. Wisconsin Labor and Industry Review Commission, et al

Case No.: 2016AP13565

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

Focus: Statutory Interpretation – Unemployment Benefit Eligibility

This case addresses eligibility for unemployment benefits when an employer has terminated an employee for misconduct due to absenteeism. The Wisconsin Department of Workforce Development (DWD) challenges the Labor and Industry Review Commission’s (LIRC) interpretation of the absenteeism statute, WIS. STAT. § 108.04(5)(e) (2015-16). Given our standard of review, we uphold LIRC’s interpretation of § 108.04(5)(e) as reasonable and reverse the circuit court.

Recommended for publication

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. T.L.J.

Case No.: 2016AP1395

Officials: Hagedorn, J.

Focus: Juvenile – Court Error

T.L.J. appeals from an order of the juvenile court waiving jurisdiction and allowing him to be tried as an adult. His burden is to show the court erroneously exercised its discretion. In support, however, he merely offers a different view of the statutory factors and the weight he thinks should have been granted to the various witnesses’ testimony. As a result, we affirm.

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WI Court of Appeals – District IV

Case Name: Midland Funding, LLC v. Walter J. Witten

Case No.: 2015AP383

Officials: Kloppenburg, P.J., Higginbotham and Blanchard, JJ

Focus: Creditor – Debtor

  1. Walter Witten, pro se, appeals from a judgment entered against him for unpaid credit card debt. We affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Darrin H. Church

Case No.: 2015AP2513-CR; 2015AP2314-CR; 2015AP2315-CR

Officials: Lundsten, Sherman and Blanchard, JJ.

Focus: Colloquy Defect

Darrin Church appeals judgments of conviction and orders denying his motion for postconviction relief. We conclude that, although in almost all respects the circuit court conducted an exemplary plea colloquy, State v. Hoppe, 2009 WI 41, 317 Wis. 2d 161, 765 N.W.2d 794, compels the conclusion that a single omission by the circuit court regarding Church’s right to a unanimous verdict constitutes a plea colloquy defect under State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986). Because we conclude that there was a plea colloquy defect regarding jury unanimity, we reverse and remand for an evidentiary hearing at which the State will have the burden of proving that Church understood, prior to his pleas, that he had a right to a unanimous verdict.

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WI Court of Appeals – District IV

Case Name: Kendra Lynn Papcke-Parks v. Richard Norman Parks

Case No.: 2016AP166

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

Focus: Divorce – Child Placement

Richard Parks appeals the circuit court’s order that denied his motion to revise the physical placement of his two children with Kendra Papcke-Parks. Richard argues that the circuit court erred by (1) converting Kendra’s “motion to dismiss” Richard’s motion to revise physical placement into a summary judgment motion and misapplying summary judgment standards; (2) granting Kendra’s motion and denying Richard’s motion without an evidentiary hearing; and (3) awarding Kendra $2,000 in attorney’s fees. We affirm

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WI Court of Appeals – District IV

Case Name: City of Madison v. State of Wisconsin Department of Health Services, et al

Case No.: 2016AP727

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

Focus: Ch. 51 Commitment – Statutory Interpretation

The emergency detention statute in Wisconsin’s Mental Health Act sets out a statewide process for providing, on an emergency basis, treatment to individuals who are mentally ill, drug dependent, or developmentally disabled, and who meet certain other criteria set out in the statute.

WIS. STAT. § 51.15(1) (2015-16). Under WIS. STAT. § 51.15(2), local law enforcement officers may transport an individual for emergency detention and treatment to only two types of facilities: “a treatment facility approved by the [Department of Health Services] or the county department [of community programs], if the facility agrees to detain the individual, or a state treatment facility.” The State of Wisconsin Department of Health Services has designated the Winnebago Mental Health Institute in Oshkosh as the state treatment facility that will accept custody of individuals transported for emergency detention and treatment under the statute. The City of Madison argues that, under the statute, the Department must also accept custody of individuals transported for emergency detention and treatment at the Mendota Mental Health Institute in Madison because Mendota is also a “state treatment facility” as that term is used in § 51.15(2). As we explain, we conclude that under the only reasonable meaning of the statute, the Department has acted within its statutory authority to designate Winnebago as the state treatment facility that will accept custody of individuals transported for emergency detention and treatment under WIS. STAT. § 51.15(2). Accordingly, we affirm

Recommended for publication

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WI Court of Appeals – District IV

Case Name: Chastity Young v. Landstar Investments, LLC, et al

Case No.: 2016P1432

Officials: Sherman, J.

Focus: Delinquency – Summary Reversal

Chastity Young appeals from an order of the circuit court denying her motion to vacate an amended judgment. Respondent Duane Branek, despite notice of delinquency issued by the clerk of this court on January 18, 2017, has failed to file a response brief in this appeal. The notice of delinquency warned Branek that failure to file the brief within five days could result in summary reversal under WIS. STAT. RULE 809.83(2). By order of February 3, 2017, this appeal was submitted to me “to determine whether the case may be decided based solely upon the appellant’s brief and the record.” I determine that the case can be decided solely upon the appellant’s brief and the record and I affirm.

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7th Circuit Digests

7th Circuit court of Appeals

Case Name: Charlene Eike, et al v. Allergan, Inc. et al

Case No.: 16-3334

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

Focus: Class Certification

The defendants appeal from an order certifying eight classes (which for simplicity we’ll pretend are just one class), consisting of persons in Illinois and Missouri who take eye drops manufactured by six pharmaceutical companies—the defendants in the case—for treatment of glaucoma. The claim is that the defendants’ eye drops are unnecessarily large, in violation of the Illinois Consumer Fraud Act, 815 ILCS 505/1 et seq., and the Missouri Merchandising Practices Act, Mo. Rev. Stat. §§ 407.010 et seq., because each eye drop exceeds 16 microliters (equal to a tenth of one percent of a tablespoon), and the class contends that the optimal size of an eye drop for treatment of glaucoma is 16 microliters, no more. In places it says that drops as small as 5 microliters would be safe, but its claim is merely that anything larger than 16 microliters is wasteful because, it contends, the additional microliters add no therapeutic value.

Vacated and Remanded

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7th Circuit court of Appeals

Case Name: Joseph S. McGreal v. The Village of Orland Park, et al

Case No.: 16-2365

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

Focus: 1st Amendment violation

On June 28, 2010, Joseph McGreal was fired from his position as a police officer with the Or‐ land Park Police Department. Thereafter, he sued the Village of Orland Park and three members of the police department—Chief of Police Timothy McCarthy, Lieutenant Patrick Duggan, and Lieutenant James Bianchi—claiming that the defendants violated his First Amendment rights by firing him in retaliation for his exercise of protected speech at a community board meeting. He also brought a state‐law intentional‐infliction‐of‐emotional‐distress claim. The defendants filed a motion for summary judgment, which the district court granted.   This appeal ultimately comes down to evidence, or perhaps more appropriately, a lack of it. Because McGreal has offered no admissible evidence showing that he is entitled to relief, the district court properly dismissed his claims.

Affirmed

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7th Circuit court of Appeals

Case Name: Eddie Gill v. City of Milwaukee, et al

Case No.: 16-2846

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

Focus: Concealment – Prejudice

In February 2013, Eddie Gill confessed to and was charged with the murder of Jordin Crawley. Gill spent just over a year in jail awaiting trial. The charges were dropped, however, after a Milwaukee County Circuit Court judge suppressed Gill’s confession. Gill then filed a series of federal and state law claims in federal district court against the City of Milwaukee, Chief of Police Edward Flynn, and six Milwaukee police detectives. The district court entered judgment on the pleadings under Federal Rule of Civil Procedure 12(c) in favor of Defendants on all of Gill’s federal claims and dismissed the state law claims without prejudice. For the reasons that follow, we affirm.

Affirmed

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7th Circuit court of Appeals

Case Name: United States of America v. Anthony D. Cook

Case No.: 15-2529

Officials: MANION, KANNE, and HAMILTON, Circuit Judges

Focus: Sentence Enhancement

Anthony Cook participated in an armed robbery of a Community Financial Service Center (“CFSC”) in Milwaukee. He pled guilty to obstruction of commerce by robbery and to brandishing a firearm during the commission of a crime of violence. Over Cook’s objection, the district court applied two enhancements to his sentence: a 2‐level increase for causing a loss to a financial institution and a 2‐level increase for physically restraining a person during a robbery. On appeal, Cook argues that the district court erred in applying those enhancements. We disagree, so we affirm.

Affirmed

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7th Circuit court of Appeals

Case Name: Ashoor Rasho v. Willard O. Elyea, et al

Case No.: 14-1902

Officials: POSNER and WILLIAMS, Circuit Judges, and WOOD, District Judge

Focus: Deliberate Indifference

Ashoor Rasho arrived at the Pontiac Correctional Center (“Pontiac”), an Illinois prison, in 2003. Rasho has a history of mental illness and, after he stopped taking his medication and began showing escalating symptoms, he was transferred into Pontiac’s Mental Health Unit. He remained in the Mental Health Unit until 2006, when he was transferred to the North Segregation Unit. Rasho believes that he was transferred out of the Mental Health Unit not because he no longer required the specialized treatment offered there but instead in retaliation for complaints he had lodged against various prison staff. According to Rasho, after he was transferred, he was denied even minimally adequate mental health care for more than 20 months. Rasho subsequently filed a lawsuit pursuant to 42 U.S.C. § 1983 against the Pontiac staff psychiatrist and psychology services administrator who recommended his transfer out of the Mental Health Unit, as well as the warden, medical director, and director of mental health, alleging that each acted with deliberate indifference to his serious medical needs in violation of the Eighth Amendment to the United States Constitution.1 The district court granted summary judgment in favor of all of the defendants. Rasho now appeals.

Affirmed in part

Reversed and remanded in part

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7th Circuit court of Appeals

Case Name: Cafferty, Clobes, Meriwether & Sprengel, LLP v. XO Communications Services, LLC

Case No.: 160-3472

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

Focus: Denial of Leave To Amend Complaint – Insufficient Complaint

The plaintiff, a law firm, seeks both individual and class relief against XO Communications, a large provider of telecommunications services to business customers, such as the plaintiff, and wholesalers. The plaintiff’s contract with XO provided that the contract would be automatically renewed at the end of the customer’s current service term “for a similar term and at the same rates” set forth in the contract. A customer who didn’t want to renew was required to so notify XO at least 30 days prior to the expiration date in the contract; if it failed to do so, the contract would renew automatically. The contract also provided that XO would notify the customer of the automatic-renewal feature of the contract (which it did from time to time), thus reminding the customer that if it decided not to renew the contract it would have to so notify XO at least 30 days before expiration. The contract further stated that if the customer terminated the contract after the deadline it would have to pay XO a termination fee based on the revenue that XO would have received from the customer over the remaining months of the contract had it not been terminated prematurely and thus in violation of the contract. XO’s monthly invoices contain a prominent reminder of the automatic renewal feature of the contract.

Affirmed

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7th Circuit court of Appeals

Case Name: Allied Property & Casualty Insurance Company, et al

Case No.: 16-1868

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

Focus: Declaratory Judgment – Duty To Indemnify

Allied Property and Casualty Insurance Company issued a commercial general liability policy insuring a subcontractor who worked on a multi-unit residential property owned by Metro North Condominium Association. In 2006 the Metro North property sustained extensive water damage caused by the subcontractor’s defective window installation. Metro North and the subcontractor

reached a settlement in which the subcontractor assigned to Metro North its right to any insurance proceeds covering the damage. The subcontractor’s insurers (Allied and another insurer named AMCO) then filed this declaratory judgment action seeking a declaration that they were not required to cover the losses claimed in the settlement. The district court found for the insurers, and Metro North appeals. We affirm.

Affirmed

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7th Circuit court of Appeals

Case Name: Rebecca Hill, et al v. Service Employees International Union, et al

Case No.: 16-2327

Officials: BAUER and FLAUM, Circuit Judges, and SHADID, District Judge

Focus: 1st Amendment Violations

Appellants, home healthcare and childcare providers, challenge the exclusive-bargaining-representative provisions of the Illinois Public Labor Relations Act, 5 Ill. Comp. Stat. 315/1 et seq. (“IPLRA”). Appellants argue that the statutory scheme violates their First Amendment associational rights. The district court dismissed their complaint for failing to state a claim. We affirm.

Affirmed

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7th Circuit court of Appeals

Case Name: Telamon Corporation v. Charter Oak Fire Insurance Company, et al

Case No.: 16-1205; 16-1815

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

Focus: Insurance – Duty of Good Faith – Court Error

Underlying this insurance dispute is a regrettably common tale of greed and dishonesty. Telamon, an Indiana telecommunications firm, engaged Juanita Berry to work for it from 2005 to 2011 as its Vice President of Major Accounts. Berry used that position to steal over $5 million from the firm. Upon discovering this loss, Telamon then turned to two insurance policies in an effort to recover its money: a crime insurance policy with Travelers Casualty & Surety (Travelers), and a commercial property policy with Charter Oak Fire Insurance (Charter Oak). At that point, Telamon crashed into a brick wall. Travelers denied coverage because Berry was not, legally speaking, an employee. And Charter Oak refused to pay because, in practice, she was. Telamon cried foul and filed a lawsuit in which it argued that Berry’s actions were covered under both policies and that the insurers had breached their duty of good faith. At the eleventh hour, it tried to add St. Paul Fire and Marine Insurance (St. Paul) as a defendant. The court rejected the amendment, at which point Telamon filed a new action against St. Paul and Charter Oak. That case promptly found its way back to the same court and was dismissed as an impermissible effort to split the claim. Telamon appealed (case 16-1205). Later the court granted summary judgment in favor of the defendants in the original case. Again, Telamon appealed (case 16-1815). We consolidated the appeals for disposition. Finding no error in either of the district court’s decisions, we affirm.

Affirmed

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7th Circuit court of Appeals

Case Name: Joan E. Mulvania, et al v. Sheriff of Rock Island County, et al

Case No.: 16-1711

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

Focus: Class Certification – Improper Policy

This appeal presents two distinct claims. The first arises from plaintiff Joan Mulvania’s arrest and detention at the Rock Island County Jail in November 2010. Mulvania claims the jail has a widespread practice of conducting strip searches with excessive force and without accommodating people who are experiencing mental distress. The second claim arises from ten other plaintiffs who joined the suit to challenge the Rock Island Sheriff’s policy that re‐ quires female detainees to wear either white underwear or no underwear at all. They argue the policy is not rationally related to a legitimate governmental objective and that it impairs their dignity without sufficient justification. They also seek certification to pursue that claim as a class. We affirm the district court’s grant of summary judgment against Mulvania on both of her claims. We reverse the district court’s grant of summary judgment against the other plain‐ tiffs on the underwear policy, but we affirm denial of class certification on that claim. We recount the facts as told in the parties’undisputed statement of facts. Where a dispute exists, we note the dispute and resolve it in favor of plaintiffs for purposes of summary judgment, giving them the benefit of reasonable inferences. E.g., Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009).

Affirmed in part

Reversed and remanded in part

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7th Circuit court of Appeals

Case Name: Amir Jakupovic v. Mark C. Curran, Jr., et al

Case No.: 16-3374

Officials: WOOD, Chief Judge, FLAUM, Circuit Judge, and CONLEY, Chief District Judge

Focus: Prejudicial Treatment

Amir Jakupovic was charged in Lake County, Illinois with telephone harassment. Before trial, the state court ordered that Jakupovic first be detained and then released on electronic surveillance. Jakupovic alleges that various state officials acted unlawfully in refusing to re‐ lease him on electronic surveillance because he lacked a Lake County residence. The district court dismissed Jakupovic’s claims with prejudice. We conclude the claims are jurisdictionally barred and vacate and remand with instructions to dismiss without prejudice.

Vacated and remanded

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7th Circuit court of Appeals

Case Name: United States of America v. Rashid Minhas

Case No.: 15-3761; 15-3763

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

Focus: Sentencing – Sentencing Guidelines – Enhancement

Rashid Minhas used the Chicago-based travel agencies he operated to swindle customers and airlines out of hundreds of thousands of dollars. Minhas was convicted of wire and mail fraud in violation of 18 U.S.C. §§ 1341 and 1343 in two separate cases: one that proceeded to a bench trial in February 2014, and one in which Minhas pleaded guilty in 2015. At a consolidated sentencing hearing, the district court imposed two partially concurrent prison terms totaling 114 months. On appeal from the two judgments, Minhas challenges the district court’s application of the Sentencing Guidelines’ enhancement for causing “substantial financial hardship” to the two sets of victims. U.S.S.G. § 2B1.1(b)(2). Though we have seen stronger evidence, we are not convinced that the district court committed clear error in its assessment of the record, and so we affirm its judgment.

Affirmed

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7th Circuit court of Appeals

Case Name: Henry C. Wedemeyer, et al v. CSX Transporation, Inc.,

Case No.: 15-3580

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

Focus: Interstate Commerce Commission Termination Act – Federal Preemption

In 1989, CSX Transportation successfully petitioned the Interstate Commerce Commission (the “ICC”) to end CSX’s obligation to provide common-carrier rail service on a portion of track in Putnam County, Indiana. The following year, CSX notified the ICC that it had abandoned that segment. Shortly thereafter, CSX leased a portion of its track, including the abandoned segment, for use by a grain-shipping company. The Wedemeyers own property adjoining the abandoned track segment. They sued CSX seeking removal of the tracks and possession of the real property underlying the rail line. CSX moved for summary judgment, and the district court granted its motion, finding that the Wedemeyers’ claims were preempted under the Interstate Commerce Commission Termination Act (“ICCTA”), 49 U.S.C. § 10501(b). We affirm.

Affirmed

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7th Circuit court of Appeals

Case Name: Northern Illinois Telecom, Inc et al v. PNC Bank, N.A.

Case No.: 15-2142

Officials: WOOD, Chief Judge, and POSNER and HAMILTON, CirȬ cuit Judges.

Focus: FRCP 11  Sanctions

This appeal pivots on the procedural requirements of Federal Rule of Civil Procedure 11 for seeking sanctions against a party and its attorney for asserting frivolous claim or defense. Rule 11(c)(2) requires a party seeking Rule 11 sanctions first to serve a proposed motion on the opposing party and to give that party at least 21 days to withdraw or correct the offending matter. Only after that time has passed may the motion be filed with the court. To mix naval metaphors, the party seeking sanctions must first fire a warning shot that gives the opponent time to find a safe harbor. In this case, the party who sought sanctions failed to comply with that procedure. It argued, however, that two letters it sent containing both settlement demands and threats to seek Rule 11 sanctions if its demands were not met amounted to “substantial compliance” with Rule 11(c)(2) and thus preserved its right to move for sanctions after the district court granted summary judgment in its favor. The district court accepted that argument and imposed sanctions. Northern Illinois Telecom, Inc. v. PNC Bank, NA (NITEL II), No. 12 C 2372, 2015 WL 1943271, at *9 (N.D. Ill. Apr. 29, 2015). We reverse. Whether “substantial compliance” with the warning shot/safe harbor requirement of Rule 11(c)(2) can ever be sufficient is controversial. We are the lone circuit to say yes. Compare Penn, LLC v. Prosper Business Dev. Corp., 773 F.3d 764, 768 (6th Cir. 2014) (eight circuits reject substantial compliance theory), with Nisenbaum v. Milwaukee County, 333 F.3d 804, 808 (7th Cir. 2003) (substantial compliance with warning shot requirement was sufficient to allow sanctions). Even assuming substantial compliance is sufficient, the defendant’s settlement demands in this case fell far short of substantial compliance. We therefore reverse the district court’s award of sanctions.

Reversed and Remanded

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7th Circuit court of Appeals

Case Name: Herbert Diggs v. Parthasarathi Ghosh, et al

Case No.: 16-1175

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

Focus: Deliberate Indifference

In 2014, Herbert Diggs, an Illinois prisoner, sued three doctors and the former warden of Stateville Correctional Center, asserting principally that they were deliberately indifferent to a full tear in his right knee’s anterior cruciate ligament (“ACL”). The tear had been diagnosed in 2009. When he filed suit in 2014 Diggs was (and for all we know he still is) waiting for surgery to repair the tear. The district court granted summary judgment for the defendants. We affirm in part and vacate and remand in part.

Affirmed in Part

Vacated and remanded in part

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