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Weekly Case Digests – February 4, 2019 – February 8, 2019

By: Rick Benedict//February 8, 2019//

Weekly Case Digests – February 4, 2019 – February 8, 2019

By: Rick Benedict//February 8, 2019//

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7th Circuit Digests

7th Circuit Court of Appeals

Case Name: State of Illinois v. City of Chicago

Case No.: 18-2805

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

Focus: Motion to Intervene Denied

On August 29, 2017, the State of Illinois filed suit in federal court against the City of Chicago, alleging that the Chicago Police Department’s use-of-force policies and practices violate the federal constitution and Illinois law. Two days later, the parties moved to stay the proceedings while they negotiated a consent decree. Almost immediately after the State filed the complaint, the Fraternal Order of Police, Lodge No. 7, publicly indicated its opposition to any consent decree, citing fears that the decree might impair its collective bargaining rights. For months, the Lodge monitored the ongoing negotiations and met informally with the State’s representatives. But the Lodge waited until June 6, 2018, to file a motion to intervene in the suit. The district court denied the motion to intervene as untimely. Because the Lodge knew from the beginning that a consent decree might impact its interests but delayed its motion for nearly a year, and because its allegations of prejudice are speculative, we affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: S. David Goldberg v. Michael W. Frerichs, Treasurer of Illinois

Case No.: 18-2432

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

Focus: Statutory Interpretation – Unclaimed Property Act

An earlier opinion in this case concluded that people whose property is taken into custody by Illinois under the state’s Disposition of Unclaimed Property Act, 765 ILCS 1026/15-607, are entitled to receive the time value of their property (that is, interest or other earnings), less reasonable custodial fees. Kolton v. Frerichs, 869 F.3d 532 (7th Cir. 2017); see also Cerajeski v. Zoeller, 735 F.3d 577 (7th Cir. 2013). On remand the district court declined to certify the proposed class, ruling that, despite what our opinion said, owners of property in the state’s custody are entitled to be compensated for the time value of money only if the property was earning interest at the moment the state took it into custody. 2018 U.S. Dist. LEXIS 51062 (N.D. Ill. Mar. 28, 2018). This meant that the class had internal divisions that made certification inappropriate. The court then granted summary judgment to the state on the claim of S. David Goldberg, one of the putative class representatives, whose property had not been earning interest before the state took custody of it. The judge entered a partial final judgment under Fed. R. Civ. P. 54(b), leading to this appeal.

It may be hard to administer the line established by Brown. That will be among the district court’s tasks if the state contends on remand that particular parcels in its custody could not earn net interest in private hands. All we decide today is that it does not mamer under Brown, or any other decision by the Supreme Court or this court, whether property that is able to earn net interest was in an interest-bearing account before its transfer to the state. (This conclusion also may lead the district court to reconsider its ruling on class certification.) The judgment is vacated, and the case is remanded for proceedings consistent with Kolton and this opinion.

Vacated and Remanded

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7th Circuit Court of Appeals

Case Name: Eliseo Beltran-Aguilar v. Matthew G. Whitaker

Case No.: 18-1799

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

Focus: Immigration – Removal Order

Eliseo Beltran-Aguilar, a native and citizen of Mexico, applied for cancellation of removal from the United States. An immigration judge denied his application, and the Board of Immigration Appeals affirmed the denial on the ground that Beltran-Aguilar’s conviction for Wisconsin battery involving domestic abuse was a crime of domestic violence. Beltran-Aguilar now petitions this court for review, arguing that the Wisconsin offense is not categorically a crime of violence. It is, so we deny his petition.

Denied

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7th Circuit Court of Appeals

Case Name: United States of America v. Mandy L. Hagen

Case No.: 18-1579

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

Focus: Sentencing Guidelines

Mandy Hagen was convicted twice under Illinois law for failing to get her children to school. When she later pleaded guilty in federal court for conspiring to distribute methamphetamine, the district court counted her two convictions for allowing child truancy toward her criminal history score. That was an error. Section 4A1.2(c) of the Sentencing Guidelines excludes certain crimes, and those “similar to” them, from a defendant’s criminal history. One of the listed offenses is non‐support, which involves failing to provide for a child’s basic needs. Permitting truancy is a similar offense, and a less serious one at that. Hagen’s criminal history score must be recalculated, this time excluding her two truancy‐related offenses.

In sum, the five‐factor test confirms that Guardian Allows Child Truancy is similar to the offense of non‐support and that § 4A1.2(c)(1) therefore required its exclusion from Hagen’s criminal history score. Non‐support bears so many obvious similarities to Guardian Allows Child Truancy that the court plainly ought to have considered it. And it is so clearly more serious than Hagen’s offenses that we are convinced that the court committed plain error. This error affected a substantial right—Hagen’s freedom—by increasing her recommended sentence under the Guidelines. See Garrett, 528 F.3d at 527 (“A sentence based on an incorrect Guideline range constitutes an error affecting substantial rights and can thus constitute plain error, which requires us to remand unless we have reason to believe that the error did not affect the district court’s selection of a particular sentence.”). And the fact that the more serious offense of non‐support is excluded would make it particularly unjust to count the similar, less serious offense of Guardian Allows Child Truancy toward Hagen’s criminal history score. We believe that letting this error stand would “seriously affect[] the fairness … of judicial proceedings,” justifying a rare exercise of our discretion in reversing under a plain error standard. See Garrett, 528 F.3d at 527.

We REVERSE the district court’s sentence and REMAND for resentencing in accordance with this opinion.

Reversed and Remanded

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7th Circuit Court of Appeals

Case Name: Derrick D. Neely –Bey Tarik-El v. Daniel L. Conley, et al.

Case No.: 17-2980

Officials: FLAUM, RIPPLE, and BARRETT, Circuit Judges

Focus: Prisoner – 1st Amendment Violation

Derrick D. Neely-Bey Tarik-El filed this action against various officials at the Correctional Industrial Facility (“CIF”) in Pendleton, Indiana, and at the Indiana Department of Corrections (“IDOC”). He alleged that the defendants had prevented him from participating fully in the worship services of the Moorish Science Temple of America (“MSTA”) held at the CIF, in violation of the Free Exercise and Establishment Clauses of the First Amendment.

The district court screened the complaint under 28 U.S.C. § 1915A. It dismissed claims against Commissioner Bruce Lemmon and Superintendent Wendy Knight on Eleventh Amendment grounds and against Officer David Liebel on the ground that he had not participated personally in any of the actions against Mr. Neely-Bey. The district court allowed the damages claims against the remaining defendants to go forward. Following discovery, the remaining defendants moved for summary judgment on qualified immunity grounds. The district court granted the motion.

Before us, Mr. Neely-Bey contends that the district court failed to recognize that his complaint sought both damages and injunctive relief. He maintains that his injunctive relief claims must be reinstated because they are unaffected by sovereign or qualified immunity. Moreover, he contends that the district court erred in granting qualified immunity to the defendants on his damages claims.

We conclude that the defendants are entitled to qualified immunity on Mr. Neely-Bey’s claims for damages under the Free Exercise Clause and the Establishment Clause and, therefore, affirm the district court’s judgment with respect to those claims. We agree with Mr. Neely-Bey that the district court misread his complaint and that it clearly seeks injunctive relief as well as damages against the defendants. Moreover, the district court should have read Mr. Neely-Bey’s pro se free exercise claim as seeking injunctive relief under the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq. (“RLUIPA”). Consequently, we must remand so that the district court may consider whether injunctive relief should be granted on the free exercise claim. In addressing this matter, the district court first must deter mine whether the free exercise claim and RLUIPA claims are moot. If it determines that the claims are not moot, it should consider whether injunctive relief is warranted. As a matter of law, there is no basis for injunctive relief on the establishment clause claims, and we therefore direct the district court to enter judgment in favor of the defendants on those claims.

Affirmed in part. Amended in part.

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7th Circuit Court of Appeals

Case Name: Sharon Mitchell v. City of Elgin, Illinois, et al.

Case No.: 16-1907

Officials: KANNE and SYKES, Circuit Judges.

Focus: 4th Amendment Violation

Sharon Mitchell enrolled in an online criminal-justice course offered by the Elgin Community College. Her participation in the class did not go smoothly. The instructor—an officer of the Elgin Police Department— eventually advised her that she was failing the course. Soon after, the Elgin Police Department received anonymous threats and a harassing email targeting the officer. A second officer swore out a criminal complaint accusing Mitchell of electronic communication harassment. She was arrested, immediately bonded out, and two years later was acquitted after a brief bench trial. Mitchell then sued the City of Elgin and several of its officers seeking damages for wrongful prosecution under various federal and state legal theories.

A district judge dismissed the case, concluding that the federal claims were either untimely or not cognizable and relinquishing supplemental jurisdiction over the state-law claims. Mitchell appealed. We heard argument in July 2017 but held the case to await further developments in the wake of the Supreme Court’s decision in Manuel v. City of Joliet (“Manuel I”), 137 S. Ct. 911 (2017), which overturned the circuit caselaw that defeated Mitchell’s Fourth Amendment claim below. Manuel I clarified that pretrial detention without probable cause is actionable under 42 U.S.C. § 1983 as a violation of the Fourth Amendment. Id. at 920. But the Court did not decide when the claim accrues. Instead, the Court left that issue open for this court to decide on remand. Id. at 922. In September a panel of this court answered that lingering question, holding that a Fourth Amendment claim for unlawful pretrial detention accrues when the detention ends. Manuel v. City of Joliet (“Manuel II”), 903 F.3d 667, 670 (7th Cir. 2018).

We asked the parties to file position statements addressing whether Mitchell’s claim is timely under Manuel II. They have done so. Based on the current state of the record and briefing, however, we find ourselves unable to decide the timeliness question. The parties have not adequately addressed whether and under what circumstances a person who is arrested but released on bond remains “seized” for Fourth Amendment purposes. Moreover, we do not know what conditions of release, if any, were imposed on Mitchell when she bonded out after her arrest. The most we can say at this juncture is that Mitchell might have a viable Fourth Amendment claim under Manuel I and II. We therefore reverse the judgment on that claim alone and remand to the district court for further proceedings consistent with this opinion. In all other respects, the judgment is affirmed.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. William D. Corrigan

Case No.: 17-3642

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

Focus: Sufficiency of Evidence

Following a bench trial, defendant William D. Corrigan (“Corrigan”) was found guilty of four counts of wire fraud in violation of 18 U.S.C. § 1343. Corrigan appeals his conviction, arguing that the indictment failed to properly set out a scheme for wire fraud, and the evidence at trial was insufficient to sustain a conviction. Corrigan also contends that the district court erred when it ordered restitution in the full amount of the investments. We disagree, and for the following reasons, we affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Moshin Yafai, et al. v. Mike Pompeo, et al.

Case No.: 18-1205

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

Focus: Immigration – Visa Application

A consular officer twice denied the visa application of Zahoor Ahmed, a citizen of Yemen, on the ground that she had sought to smuggle two children into the United States. Ahmed and her husband Moshin Yafai—a United States citizen—filed suit challenging the officer’s decision. But the decision is facially legitimate and bona fide, so the district court correctly dismissed the plaintiffs challenge to it under the doctrine of consular nonreviewability.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Brandon J. Hand

Case No.: 2017AP764-CR; 2017AP795-CR

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

Focus: Postconviction Motion Denied

Brandon J. Hand appeals pro se from judgments of convictions in two drug cases and from the order denying his motion for postconviction relief. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Jesse Jermale Robinson

Case No.: 2018AP194-CR

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

Focus: Ineffective Assistance of Counsel

Jesse Jermale Robinson appeals a judgment of conviction and an order denying postconviction relief. Following a bench trial, the circuit court found him guilty of one count of strangulation and suffocation, one count of battery, and two counts of disorderly conduct, all as acts of domestic abuse. Further, the circuit court found that Robinson committed the offenses as a domestic abuse repeater and a habitual offender. In postconviction proceedings, the circuit court denied Robinson’s motion to vacate the judgment of conviction. On appeal, Robinson raises a single issue: whether his trial counsel was ineffective for failing to impeach the victim with pretrial statements that, according to Robinson, were inconsistent with the victim’s trial testimony. We reject his arguments and affirm.

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WI Court of Appeals – District II

Case Name: Walworth County Department of Health & Human Services v. A.J.S.

Case No.: 2018AP1562

Officials: HAGEDORN, J.

Focus: Termination of Parental Rights

A.J.S. appeals an order terminating his parental rights to his daughter, M.R.S. He contends that the order should be vacated because the record does not support the circuit court’s finding that he voluntarily consented to terminate his rights. Because we conclude from our review of the record that A.J.S.’s consent was informed and voluntary, we affirm.

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WI Court of Appeals – District III

Case Name: Town of Forest v. Public Service Commission of Wisconsin

Case No.: 2018AP367

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

Focus: Abuse of Discretion – Contempt Motion

The Town of Forest (“the Town”) appeals an order denying its motion to hold the Public Service Commission of Wisconsin (“the PSC”) in contempt of court. The Town also appeals an order dismissing its petition for judicial review of the PSC’s decision granting a certificate of public convenience and necessity to Highland Wind Farm, LLC, (“Highland”) for the construction of an industrial wind energy facility. We conclude the circuit court properly exercised its discretion by denying the Town’s contempt motion. We further conclude the court properly dismissed the Town’s petition for judicial review on the ground that it was barred by the doctrine of claim preclusion. We therefore affirm.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Michael Engelhardt, et al. v. City of New Berlin, et al.

Case No.: 2019 WI 2

Focus: Negligence – Governmental Immunity

This is a review of an unpublished decision of the court of appeals reversing the circuit court’s denial of summary judgment to the City of New Berlin and the New Berlin Parks and Recreation Department (together, “New Berlin”).

Eight-year-old Lily Engelhardt attended a field trip to Brookfield’s Wiberg Aquatic Center organized and run by the New Berlin Parks and Recreation Department. Lily could not swim. Lily’s mother told Stuart Bell, the “Playground Coordinator” in charge of the field trip, that Lily could not swim. She questioned whether Lily should go on the trip at all. Bell responded that Lily would be safe because her swimming ability would be evaluated at the shallow end or zero depth area of the pool. Tragically, Lily drowned while staff and other children were changing in the locker rooms and proceeding to the pool deck.

Lily’s parents filed suit against New Berlin and several other defendants, alleging negligence. New Berlin moved for summary judgment, arguing that it was immune from suit pursuant to the governmental immunity statute, Wis. Stat. § 893.80(4) (2011-12). The circuit court denied New Berlin’s summary judgment motion, and New Berlin moved for leave to appeal. The court of appeals granted New Berlin’s motion and reversed the circuit court’s denial of summary judgment to New Berlin.

We conclude that New Berlin is not entitled to the defense of governmental immunity. The known danger exception to governmental immunity applies in the instant case. In the instant case, the danger to which Lily was exposed at the Aquatic Center as an eight-year-old non-swimmer was compelling and self-evident. The obvious dangers involved here resemble other obviously hazardous circumstances presented in Wisconsin cases that applied the known danger exception.  Drowning was a known danger. Under the circumstances present here, Bell and other camp staff had a ministerial duty to give Lily a swim test before allowing her near the pool. They did not perform this ministerial duty.

Because New Berlin is not entitled to the defense of governmental immunity, we reverse the decision of the court of appeals and remand the cause to the circuit court for further proceedings consistent with this opinion.

Reversed and Remanded

Concur: DALLET, J. concurs, joined by R.G. BRADLEY, J. & Kelly, J. (opinion filed).

Dissent:

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WI Supreme Court

Case Name: State of Wisconsin v. Shawn T. Wiskerchen

Case No.: 2019 WI 1

Focus: Abuse of Discretion – Restitution

This is a review of an unpublished decision of the court of appeals affirming the circuit court’s restitution order of $8,487.41 against Shawn T. Wiskerchen for losses caused by his burglary of a neighbor’s residence. Wiskerchen argues that the circuit court erroneously exercised its discretion in calculating the amount of restitution. He argues that the circuit court improperly considered alleged prior burglaries of the victim’s home, contrary to Wis. Stat. § 973.20 (2015-16), which he contends limits restitution to losses resulting from a “crime considered at sentencing.” We reject his argument in part because Wiskerchen misreads what the circuit court decided, and also because no evidence was presented at the restitution hearing to support a finding that N.D.’s missing property was stolen on any date other than May 8, which was the burglary considered at sentencing.

First, we conclude that the plain language of Wis. Stat. § 973.20 authorized the circuit court to order restitution to the victim in this case. Second, we conclude that the circuit court’s finding that the victim met her burden in proving the amount of loss resulting from a crime considered at sentencing was not clearly erroneous. The circuit court therefore did not erroneously exercise its discretion in ordering restitution of $8,487.41.

Accordingly, we affirm the court of appeals.

Affirmed

Concur: A.W. BRADLEY, J., concurs, joined by ABRAHAMSON, J. (opinion filed). R.G. BRADLEY, J., concurs (opinion filed).

Dissent:

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