Weekly Case Digests – May 11, 2020 – May 15, 2020

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Matthew King v. Hendricks County Commissioners, et al.

Case No.: 19-2119

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

Focus: ADA Violation

Bradley King, a 29-year-old resident of Hendricks County, Indiana, who suffered from paranoid schizophrenia, was killed by a police officer on November 29, 2016, during an encounter at his home. Two Hendricks County reserve deputies went to the Kings’ family home to perform a “welfare check” after Bradley called 9-1-1 and requested help. Matters then spun horribly out of control, though what precisely happened is disputed, aside from the fact that Bradley wound up dead. The only living eyewitnesses are the officers involved.

The evidence developed for purposes of the defendants’ motion for summary judgment was as follows. The deputies, Jason Hays and Jeremy Thomas, testified that upon their arrival, Bradley came out of the house, walked toward them, and pulled a ten-inch knife out of his shorts pocket. Hays and Thomas backpedaled, drew their service firearms, and yelled at Bradley to stop and drop the knife. Bradley disregarded their commands and kept moving forward. Then, with the knife in his left hand, left arm raised in front of him so that the blade was pointing toward the officers, he started running at Hays. When Bradley was approximately eight feet away, Hays fired one shot. It proved to be fatal. According to the autopsy, the bullet grazed Bradley’s left upper arm and entered his chest, directed “left to right, downwards, and slightly front to back.” A large knife, which Bradley’s father identified as one from the Kings’ kitchen, was recovered from the ground near Bradley’s left hand. An examination of the knife did not reveal any latent fingerprints.

Bradley’s father, Matthew King, disputes the officers’ account. He asserts that Bradley was never violent, even when suffering a psychotic episode, and would not have charged at the police with a knife. King urges that circumstantial evidence, including but not limited to the bullet trajectory, the lack of fingerprints on the knife, and the fact that Bradley was right-handed and thus probably would not have held the knife in his left hand, substantially undermines the deputies’ account. King contends that his son’s killing was unwarranted and unlawful.

In the aftermath, King brought federal civil rights claims under 42 U.S.C. § 1983 against Hays, the Hendricks County Commissioners, the Hendricks County Sheriff’s Department, and the Sheriff. He also brought federal claims under the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act against the Commissioners and the Sheriff’s Department, as well as state civil rights and tort claims. The district court granted summary judgment to all defendants on the federal claims and declined to exercise supplemental jurisdiction over the state-law claims. The court concluded that there was no genuine dispute of material fact for trial; that Hays’s actions did not violate Bradley’s rights under the Fourth Amendment; and that the institutional defendants did not violate the ADA and Rehabilitation Act. King appealed the district court’s judgment on the federal claims, and we now affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Michelle Jeske v. Andrew M. Saul

Case No.: 19-1870

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

Focus: ALJ Error – Disability Benefits

On Halloween 2012, Michelle Jeske was working at a cemetery as a pallbearer and burial needs salesperson. She was carrying a heavy casket when she stumbled, injuring her back. About four years later, she applied for disability insurance benefits and supplemental security income based on disability; she claimed that back and spine problems, anxiety, depression, and suicidal tendencies made her unable to work.

The Commissioner of Social Security denied Jeske’s requests, and, after a hearing, an administrative law judge (“ALJ”) found Jeske not disabled under the Social Security Act, see 42 U.S.C. §§ 423(d), 1382c(3). Seeking judicial review, Jeske asked a federal district court to set aside the administrative decision. The court upheld the decision instead, and Jeske appealed. She argues that, for a handful of reasons, we should vacate and remand with instructions to return the case to the agency.

Because the ALJ’s decision applies the proper standards, is supported by substantial evidence, and is sufficiently explained—and because Jeske waived one of her arguments— we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Christopher R. Gish v. Randall Hepp, Warden

Case No.: 19-1476

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

Focus: Ineffective Assistance of Counsel

Christopher Gish pleaded guilty to first-degree reckless homicide in Wisconsin state court for killing his longtime girlfriend and the mother of his children. He appealed, claiming that his trial counsel provided ineffective assistance by failing to investigate an involuntary intoxication defense. Police found Gish disoriented and delirious on the night of the killing, and he claimed that rare side effects from taking prescription Xanax affected his ability to appreciate the wrongfulness of his conduct. After the Wisconsin Court of Appeals rejected the claim and affirmed his conviction, Gish turned to federal court and wound his way through a thicket of habeas proceedings. The district court held an evidentiary hearing but denied relief because Gish failed to show that his counsel’s deficient performance resulted in prejudice: even if counsel had investigated involuntary intoxication, that defense was so unlikely to succeed that Gish still would have pleaded guilty. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Daniel A. Schillinger v. Josh Kiley, et al.

Case No.: 18-2404

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

Focus: Prisoner – 8^th Amendment Violation

Daniel Schillinger, a Wisconsin prisoner, was brutally assaulted by another inmate as the prisoners were walking back to their housing unit after recreation. He suffered a fractured skull, broken teeth, cuts, and other serious injuries. Schillinger sued three prison guards under 42 U.S.C. § 1983 for violating his Eighth Amendment rights by failing to protect him from the attack.

The district judge screened the complaint and permitted Schillinger to proceed on a claim that the officers failed to take preventive action after learning of hostility between Schillinger and his attacker during the recreation period shortly before the attack. The judge later ruled that Schillinger had not exhausted his administrative remedies on this claim and entered summary judgment for the defendants.

On appeal Schillinger argues that the judge should have gleaned from his complaint two additional factual grounds for a failure-to-protect claim against the officers: that they did not respond fast enough to an alarm about a medical emergency on his unit once the attack was underway and they stood by without intervening to stop the attack while it was ongoing. He also challenges the judge’s exhaustion ruling.

We reject these arguments and affirm. The judge did not overlook plausible alternative factual grounds for the claim against these defendants. And we find no fault with the judge’s exhaustion ruling. Though Schillinger pursued a complaint through all levels of the prison’s inmate complaint system, he never mentioned the claim he raised in this litigation: that the three officers were aware of threatening behavior by the attacker in the recreation area before the assault and failed to take steps to protect him.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Flexible Steel Lacing Company v. Conveyor Accessories, Inc.,

Case No.: 19-2035

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

Focus: Trademark Infringement – Trade Dress

Flexible Steel Lacing Co. (“Flexco”) brought this action for trade dress infringement and unfair competition against Conveyor Accessories, Inc. (“CAI”). Flexco alleges that CAI infringed its registered and common law trade dress by promoting and selling conveyor belt fasteners with a product design that is confusingly similar to the product design of Flexco’s fasteners. In its complaint, Flexco set forth claims brought under the Lanham Act, 15 U.S.C. §§ 1114 and 1125(a), claims for common law unfair competition and trademark infringement, and a claim brought under the Illinois Uniform Deceptive Trade Practices Act, 815 ILCS 510/2. CAI answered the complaint and asserted counterclaims seeking cancellation of Flexco’s registered trademarks and seeking a declaratory judgment of invalidity, unenforceability, and noninfringement. CAI moved for summary judgment, contending that Flexco’s trade dress is functional and therefore invalid. Flexco moved for partial summary judgment on other grounds.

The district court granted summary judgment in favor of CAI, holding that Flexco’s trade dress was functional. It denied Flexco’s motion for partial summary judgment and dismissed CAI’s remaining counterclaims as moot. Flexco filed a timely notice of appeal seeking reversal of the district court’s grant of summary judgment in favor of CAI with respect to one of its registered marks.

We agree with the district court’s ruling and hold that Flexco’s trade dress is invalid because it is functional. We accordingly affirm the district court’s judgment.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Lydia E. Vega v. Chicago Park District

Case No.: 19-1926; 19-1939

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

Focus: Title VII Violation – Damages

Lydia Vega sued her former employer, the Chicago Park District, alleging that the Park District discriminated against her due to her national origin in violation of Title VII and 42 U.S.C. § 1983. After a seven- day jury trial, the jury returned a verdict in Vega’s favor on both claims and awarded her $750,000 in compensatory damages. The Park District moved for judgment as a matter of law on both claims; the district court granted the motion with respect to the § 1983 claim but denied it with respect to the Title VII claim. With the § 1983 claim gone, the district court remitted Vega’s award to $300,000, which is the statutory maximum under Title VII. It then conducted a bench trial on equitable remedies and granted Vega back pay, benefits, and a tax-component award.

On appeal, the Park District challenges the district court’s denial of its motion for judgment as a matter of law on Vega’s Title VII claim, several evidentiary rulings, the statutory maximum damages award, and the calculation of equitable remedies. Vega cross-appeals the district court’s entry of judgment as a matter of law on her § 1983 claim. We affirm all of the district court’s rulings except its grant of the tax-component award, which we vacate and remand for the district court to explain its calculation.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Dixon O’Brien, et al., v. Village of Lincolnshire

Case No.: 19-1349

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

Focus: 14^th Amendment Violation – Equal Protection Clause

Dixon O’Brien, John Cook, and the unions to which they belong sued the Village of Lincolnshire and the Illinois Municipal League claiming violations of their rights under the First Amendment and the Equal Protection Clause of the Fourteenth Amendment, as well as violations of state law. The district court dismissed their federal claims under Federal Rule of Civil Procedure 12(b)(6) and declined to exercise supplemental jurisdiction over their remaining state law claims. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Allen Young

Case No.: 18-3679

Officials: WOOD, Chief Judge, and ROVNER and BARRETT, Circuit Judges.

Focus: Jury Instructions

Allen Young was indicted for the sex trafficking of four minors and the attempted sex trafficking of a fifth. Three weeks before his trial was scheduled to start, Young fired his attorney and invoked his right to represent himself. The result was predictable. The government presented compelling evidence—including the testimony of each victim—that Young knowingly facilitated the prostitution of vulnerable minors and profited from their exploitation. Young, appearing pro se, failed to mount a serious defense to the government’s case, and the jury convicted him on all counts. He now appeals eight issues from the trial. None of his arguments has merit, and we affirm the judgment across the board.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Markel Insurance Company v. Lillian Marlene Rau, et al.

Case No.: 19-2433

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

Focus: Insurance Claim – Duty to Indemnify

United Emergency Medical Services, LLC (“United”) owns a fleet of ambulances. In 2016, Chester Stofko was driving his car when one of United’s ambulances crashed into it; Stofko’s injuries were fatal. Lillian Rau, as personal representative of Stofko’s estate, filed a lawsuit in state court against United and the driver to recover damages.

At the time of the accident, United was insured by Markel Insurance Company. The particular ambulance that crashed, however, was not listed on the policy. Rau argues that it was nevertheless covered by the policy because before the crash United sent Markel’s agent, Insurance Service Center (“Center”), an email requesting that the vehicle be added to the policy. Markel insists that even if United had sent an email, it never endorsed the change, which the policy requires, and so it has no duty to indemnify United or the driver and no duty to defend with respect to Rau’s suit.

Seeking a declaratory judgment to this effect, Markel filed the present suit in federal court. On cross-motions for summary judgment, the district court found that Markel had no obligation to United or its employee under the policy. We agree with this conclusion, and so we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Fernando Godinez

Case No.: 19-1215

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

Focus: Sentencing Guidelines – Resentencing

Fernando Godinez pleaded guilty to conspiracy to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and to possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i). The Government filed an information under 21 U.S.C. § 851, advising the district court that Mr. Godinez had a prior Ohio conviction for possession of cocaine. The district court determined that this prior state conviction made Mr. Godinez eligible for a mandatory minimum sentence of ten years’ imprisonment rather than the otherwise applicable five-year mandatory minimum. See 21 U.S.C. § 841(b)(1)(B) (2010).

841(b)(1)(B) (2010). Mr. Godinez now submits that, at the time of sentencing, the district court—and both parties—misapprehended the legal consequences of the Government’s filing the § 851 information. Specifically, he submits that the First Step Act of 2018, Pub. L. 115-391, 132 Stat. 5194 (the “First Step Act”), enacted after the signing of Mr. Godinez’s plea agreement but before his sentencing, rendered invalid both the information and the increased penalties it carried. In his view, the district court should not have characterized his previous Ohio conviction as a conviction for “possession with intent to distribute” cocaine, the qualifying requirement for the ten-year mandatory minimum. Therefore, Mr. Godinez submits, he is not subject to the higher mandatory minimum.

Mr. Godinez is correct. By failing to recognize the changes implemented by the First Step Act, the district court premised its sentencing calculations on a mandatory minimum that was twice what it should have been. This oversight constitutes plain error and requires that Mr. Godinez be resentenced. Accordingly, we vacate the judgment of the district court and remand the case to the district court for sentencing.

Vacated and remanded

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WI Supreme Court Digests

WI Supreme Court

Case Name: Office of Lawyer Regulation v. Jesse Jon Johansen

Case No.: 2020 WI 32

Focus: Attorney Disciplinary Hearing

We review the report of Referee Robert E. Kinney recommending that the court suspend Attorney Jesse J. Johansen’s license to practice law in Wisconsin for six months. The referee also recommends that Attorney Johansen make restitution and that he be ordered to pay the full costs of this disciplinary proceeding, which are $5,253.95 as of December 23, 2019. The referee issued his report after Attorney Johansen and the Office of Lawyer Regulation (OLR) entered into a stipulation whereby Attorney Johansen admitted to 18 counts of misconduct arising out of four client matters. Neither party has appealed from the referee’s report and recommendation, and we review the matter under Supreme Court Rule (SCR) 22.17(2).

After careful review of the matter, we agree that Attorney Johansen’s professional misconduct warrants a six-month suspension. We also agree that Attorney Johansen should bear the full costs of this proceeding and that he should pay restitution.

Attorney license suspended

Concur:

Dissent:

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WI Supreme Court

Case Name: Office of Lawyer Regulation v. Willem James Noorlander

Case No.: 2020 WI 31

Focus: Attorney Disciplinary Hearing

We review a stipulation filed pursuant to Supreme Court Rule (SCR) 22.12 by the Office of Lawyer Regulation (OLR) and Attorney Willem James Noorlander. In the stipulation, Attorney Noorlander admits the misconduct alleged by the OLR and the parties agree to a 60-day suspension of his Wisconsin law license.

We adopt the stipulated facts and conclusions of law. We agree that Attorney Noorlander’s misconduct warrants the suspension of his Wisconsin law license for a period of 60 days. The OLR did not request restitution and we impose no restitution. Initially, the OLR sought costs, but Attorney Noorlander entered into the stipulation prior to the appointment of a referee, so we will not impose the costs of this proceeding on Attorney Noorlander.

License suspended

Concur:

Dissent:

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WI Supreme Court

Case Name: Winnebago County v. C.S.

Case No.: 2020 WI 33

Focus: Prisoner – Involuntary Commitment

This is a review of a published decision of the court of appeals, Winnebago County v. C.S., 2019 WI App 16, 386 Wis. 2d 612, 927 N.W.2d 576 (“C.S. III”), affirming the Winnebago County circuit court’s order of extension of commitment, order for involuntary medication and treatment, and order denying C.S.’s postcommitment motion. C.S. suffers from schizophrenia and was an inmate in the Wisconsin prison system. While he was incarcerated, C.S. was committed and determined incompetent to refuse medication pursuant to Wis. Stat. § 51.61(1)(g) (2015-16)2 and, therefore, was the subject of multiple involuntary medication court orders.

C.S.’s commitment and involuntary medication orders were not based upon a determination of dangerousness because neither Wis. Stat. § 51.20(1)(ar) nor Wis. Stat. § 51.61(1)(g)3. require a determination of dangerousness. Rather, under § 51.20(1)(ar), C.S. was committed based on determinations that he was mentally ill, a proper subject for treatment, and in need of treatment. Then, under § 51.61(1)(g)3., C.S. was involuntarily medicated because he was determined incompetent to refuse medication. Accordingly, the crux of the issue in this case is whether § 51.61(1)(g)3. is facially unconstitutional when an inmate committed under § 51.20(1)(ar) is involuntarily medicated based on a determination of incompetence to refuse medication only——without any determination of dangerousness at any stage.

C.S. argues that Wis. Stat. § 51.61(1)(g)3. is unconstitutional when it permits the involuntary medication of any inmate who was committed under Wis. Stat. § 51.20(1)(ar) without a determination that the inmate is “dangerous” at any stage in the proceedings. Winnebago County argues the statute is facially constitutional and invokes the County’s parens patriae power. The County posits that it has a legitimate interest in the care and assistance of a mentally ill and incompetent inmate, thus eliminating any need for a determination of dangerousness with respect to an involuntary medication order of an inmate.

The court of appeals concluded that “the involuntary medication and treatment of a prisoner is facially constitutional as there is a legitimate reason for the [S]tate to medicate/treat even when there is no finding of dangerousness——the general welfare of the prisoner.” C.S. III, 386 Wis. 2d 612, ¶8. We reverse. We conclude that Wis. Stat. § 51.61(1)(g)3. is facially unconstitutional for any inmate who is involuntarily committed under Wis. Stat. § 51.20(1)(ar), which does not require a determination of dangerousness, when the inmate is involuntarily medicated based merely on a determination that the inmate is incompetent to refuse medication. Incompetence to refuse medication alone is not an essential or overriding State interest and cannot justify involuntary medication. Accordingly, we reverse the court of appeals and remand to the circuit court with an order to vacate C.S.’s June 2015 order for involuntary medication and treatment.

Reversed and remanded

Concur:

Dissent: REBECCA GRASSL BRADLEY, J., filed a dissenting opinion. HAGEDORN, J., filed a dissenting opinion, in which ROGGENSACK, C.J., joined.

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Supreme Court Digests

United States Supreme Court

Case Name: Citogo Asphalt Refining Company, et al. v. Frescati Shipping

Case No.: 18-565

Focus: Breach of Contract – Warranty – Safe-berth Clause

In 2004, the M/T Athos I, a 748-foot oil tanker, allided with a nine-ton anchor abandoned on the bed of the Delaware River. The anchor punctured the tanker’s hull, causing 264,000 gallons of heavy crude oil to spill into the river. As required by federal statute, respondents Frescati Shipping Company—the Athos I’s owner—and the United States covered the costs of cleanup. They then sought to reclaim those costs from petitioners CITGO Asphalt Refining Company and others (collectively CARCO), which had chartered the Athos I for the voyage that occasioned the oil spill. According to Frescati and the United States, CARCO had breached a contractual “safe-berth clause” obligating CARCO to select a “safe” berth that would allow the Athos I to come and go “always safely afloat.” The question before us is whether the safe-berth clause is a warranty of safety, imposing liability for an unsafe berth regardless of CARCO’s diligence in selecting the berth. We hold that it is.

Affirmed

Dissenting: THOMAS, J., filed a dissenting opinion, in which ALITO, J., joined.

Concurring:

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United States Supreme Court

Case Name: Kansas v. Charles Glover

Case No.: 18-556

Focus: 4^th Amendment Violation – Unlawful-stop Claim

This case presents the question whether a police officer violates the Fourth Amendment by initiating an investigative traffic stop after running a vehicle’s license plate and learning that the registered owner has a revoked driver’s license. We hold that when the officer lacks information negating an inference that the owner is the driver of the vehicle, the stop is reasonable.

Reversed and remanded

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

Concurring: KAGAN, J., filed a concurring opinion, in which GINSBURG, J., joined.

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United States Supreme Court

Case Name: Noris Babb v. Robert Wilkie

Case No.: 18-882

Focus: Statutory Interpretation – ADEA

The federal-sector provision of the Age Discrimination in Employment Act of 1967 (ADEA), 88 Stat. 74, 29 U. S. C. §633a(a), provides (with just a few exceptions) that “personnel actions” affecting individuals aged 40 and older “shall be made free from any discrimination based on age.” We are asked to decide whether this provision imposes liability only when age is a “but-for cause” of the personnel action in question.

We hold that §633a(a) goes further than that. The plain meaning of the critical statutory language (“made free from any discrimination based on age”) demands that personnel actions be untainted by any consideration of age. This does not mean that a plaintiff may obtain all forms of relief that are generally available for a violation of §633a(a), including hiring, reinstatement, backpay, and compensatory damages, without showing that a personnel action would have been different if age had not been taken into account. To obtain such relief, a plaintiff must show that age was a but-for cause of the challenged employment decision. But if age discrimination played a lesser part in the decision, other remedies may be appropriate.

Reversed and remanded

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

Concurring: SOTOMAYOR, J., filed a concurring opinion, in which GINSBURG, J., joined.

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United States Supreme Court

Case Name: Republican National Committee, et al. v. Democratic National Committee, et al.

Case No.: 19A1016

Focus: Application for Stay

The application for stay presented to JUSTICE KAVANAUGH and by him referred to the Court is granted. The District Court’s order granting a preliminary injunction is stayed to the extent it requires the State to count absentee ballots postmarked after April 7, 2020. Wisconsin has decided to proceed with the elections scheduled for Tuesday, April 7. The wisdom of that decision is not the question before the Court. The question before the Court is a narrow, technical question about the absentee ballot process. In this Court, all agree that the deadline for the municipal clerks to receive absentee ballots has been extended from Tuesday, April 7, to Monday, April 13. That extension, which is not challenged in this Court, has afforded Wisconsin voters several extra days in which to mail their absentee ballots. The sole question before the Court is whether absentee ballots now must be mailed and postmarked by election day, Tuesday, April 7, as state law would necessarily require, or instead may be mailed and postmarked after election day, so long as they are received by Monday, April 13.

Importantly, in their preliminary injunction motions, the plaintiffs did not ask that the District Court allow ballots mailed and postmarked after election day, April 7, to be counted. That is a critical point in the case. Nonetheless, five days before the scheduled election, the District Court unilaterally ordered that absentee ballots mailed and postmarked after election day, April 7, still be counted so long as they are received by April 13. Extending the date by which ballots may be cast by voters—not just received by the municipal clerks but cast by voters— for an additional six days after the scheduled election day fundamentally alters the nature of the election. And again, the plaintiffs themselves did not even ask for that relief in their preliminary injunction motions. Our point is not that the argument is necessarily forfeited, but is that the plaintiffs themselves did not see the need to ask for such relief. By changing the election rules so close to the election date and by affording relief that the plaintiffs themselves did not ask for in their preliminary injunction motions, the District Court contravened this Court’s precedents and erred by ordering such relief. This Court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election. See Purcell v. Gonzalez, 549 U. S. 1 (2006) (per curiam); Frank v. Walker, 574 U. S. 929 (2014); Veasey v. Perry, 574 U. S. __ (2014).

The Court’s decision on the narrow question before the Court should not be viewed as expressing an opinion on the broader question of whether to hold the election, or whether other reforms or modifications in election procedures in light of COVID–19 are appropriate. That point cannot bestressed enough.

The stay is granted pending final disposition of the ap­peal by the United States Court of Appeals for the Seventh Circuit and the timely filing and disposition of a petition for a writ of certiorari. Should the petition for a writ of certio­rari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judg­ment of this Court.

Granted

Dissenting: GINSBURG, J.,

Concurring:

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