Seventh Circuit Court of Appeals Commentary : In Their Opinion : Lawyer & Attorney Michael E. Rigney : Kelley Drye & Warren Law Firm

WISCONSIN RIGHT TO LIFE STATE POLITICAL ACTION COMMITTEE v. BARLAND (December 12, 2011)

The Wisconsin Right to Life's State Political Action Committee is an independent political committee that does not make contributions to candidates nor does it coordinate with any candidate or party. Wisconsin law places a $10,000 cap on an individual' s political contributions, whether they be to candidates, parties, or independent political committees. Two Wisconsin residents wished to make a $5,000 contribution to the PAC in 2010 but could not do so legally because of other contributions they had already made or planned to make. The PAC filed suit, alleging that the Wisconsin statute was unconstitutional to the extent it limited contributions to independent political committees. The PAC moved for a preliminary injunction, anticipating the fall 2010 elections. Instead, Chief Judge Clevert (E.D. Wis.), at defendants request, granted a Pullman abstention motion. The court based its ruling on the pendency of a case before the Wisconsin Supreme Court challenging an amended campaign finance rule. The PAC returned to the District Court in 2011, in anticipation of an unprecedented six state senator recall elections. The district court denied the motion. The PAC appealed and moved for an injunction pending appeal. A Seventh Circuit motions panel granted the motion and the Court expedited the appeal.

In their opinion, Seventh Circuit judges Posner, Flaum, and Sykes vacated the district court's abstention order and remanded with instructions to enter a permanent injunction. Before reaching the merits of the request for injunctive relief, the Court considered several preliminary challenges raised by the defendants. First, the Court concluded that the PAC had standing. The complaint alleged a proper pre-enforcement challenge. The PAC identified actual contributors who attested to their desire to make contributions in excess of the statutory limit. Second, the Court rejected the defendants' ripeness argument. The fact that the injunction pending appeal allowed the contributors freedom during the 2011 elections and their generalized desire to do so "in the future" does not establish a lack of ripeness. Future elections are only months away and the Court understood the contributors' "in the future" attestation to include those elections. Third, the Court rejected the contention that the conclusion of the 2011 recall elections made the claim moot. The Court noted that the claim probably could fit within the "capable of repetition yet evades review" exception but concluded that it need not decide that. The contributors’ claims were not limited to the 2011 recall elections. Fourth, the Court concluded that Pullman abstention was not appropriate. Although several aspects of the PAC’s case and the case pending before the Wisconsin Supreme Court overlap, the $10,000 contribution limit is not one of them. The state court's decision will therefore have no impact on the constitutional challenge to the $10,000 cap. The Court turned to the merits. It noted that laws limiting political speech are subject to strict review. The Supreme Court has drawn a distinction between limits on political campaign contributions, which are frequently upheld when the limitation is narrowly drawn to serve a important government interest, and limits on political expenditures, which are subject to strict scrutiny and are usually not upheld. Citizens United held that the only government interest at play is political corruption or the appearance of corruption. Since the kind of quid pro quo political corruption that the government is concerned about does not exist in the context of a independent political organization, a limitation on its expenditures cannot survive constitutional scrutiny. Even though the Wisconsin statute at issue addresses contributions, and not expenditures, the result is the same.

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STEVENS v. HOUSING AUTHORITY OF SOUTH BEND (December 1, 2011)

Bridgett Stevens and her two sons moved into public housing in South Bend, Indiana in 2007. The lease she signed with the Housing Authority of South Bend provided that any involvement in criminal activity by Stevens, her household, or guests could result in immediate termination of the lease. In late 2007, two men were involved in a gunfight in the building's parking lot. One man was Stevens' daughter's boyfriend -- the other was the daughter's former boyfriend, the father of her children, and the invited guest of Stevens son. The Authority issued a notice to vacate the apartment by the end of January, 2008. Stevens filed suit alleging that the Authority violated the Fair Housing Act, that it interfered with her right to make a contract, that it breached its contract with HUD, and that it violated her equal protection and due process rights. The Authority filed a counterclaim for immediate possession of Stevens' apartment. Months later, the authority issued another 30-day notice to vacate. The second notice was based on October and November 2008 incidents of domestic abuse. The Authority issued a third notice in November based on yet another incident of domestic abuse. Stevens never challenged the second or third notices. She vacated the apartment in January 2009. Judge Lozano (N.D. Ind.) granted summary judgment to the Authority. Stevens appeals.

In their opinion, Seventh Circuit judges Posner, Kanne, and Rovner affirmed. The Court first addressed the district court's conclusion that her claims based on the first notice were moot as a result of her involuntary departure after the second and third notices. Her claim is moot if she no longer retains an interest in the outcome. First, she is not entitled to injunctive or declaratory relief because of her failure to challenge the later notices. Second, she does not claim any out-of-pocket losses. Third, although she does claim damages for emotional distress, the Court concluded that she did not meet the standard for proving emotional damages when her testimony is the only offered proof. In so concluding, the Court also rejected Stevens’ contention that the first notice was unlawful in that she had no control over the men who fought. The Court concluded that the Authority's notice was lawful. Under Rucker, no fault evictions based on the criminal activity of invited guests are lawful, even if the criminal activity was without the knowledge of the tenant. The Court turned to her Fair Housing Act claim that the Authority's decision on where to locate the apartment was an act of segregation. But Stevens' proof consisted entirely of her unsupported personal observations. The record is devoid of any evidence concerning the demographics of the community today or when the complex was built in 1961.
 

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DAMASCO v. CLEARWIRE CORPORATION (November 18, 2011)

Jerome Damasco brought a class action suit in state court against Clearwire Corporation. He alleged that Clearwire sent unsolicited text messages in violation of the Telephone Consumer Protection Act. He sought both injunctive relief and damages for the more than 1,000 people he estimated received the text messages. Clearwire offered to settle the case by paying Damasco (and up to 10 additional people) the maximum statutory penalty ($1,500) and agreed to stop sending the unsolicited messages. Damasco never responded. A few days later, Clearwire removed the case to federal court. Damasco moved for class certification almost immediately. Within a day, Clearwire moved to dismiss on the grounds that its settlement offer rendered the case moot. Judge Zagel (N.D. Ill.) agreed with Clearwire and dismissed, concluding that the Seventh Circuit's Holstein decision controlled. A complete settlement offer before a class certification filing moots the named plaintiff’s claim. Damasco appeals.

In their opinion, Seventh Circuit Judges Manion, Rovner, and Tinder affirmed. Article III of the Constitution requires federal courts to hear only live cases and controversies. As such, a party must maintain a personal stake in the litigation. Here, once Clearwire expressed its willingness to give Damasco everything to which he may have been entitled under the law, there is no more controversy. The Court has held in the past that a plaintiff cannot avoid mootness simply by moving to certify the class after the offer. Although the Court recognized that several other circuits have allowed plaintiffs to seek class certification after such a full offer, the Court reiterated its belief that such a rule violated Article III and declined to adopt it. A simple solution exists to any concern that defendants could frustrate class actions by simply offering each named plaintiff a full settlement. That solution is to move for class certification at the time the complaint is filed. The filing of the motion protects the plaintiffs and the class. The Court also noted that a plaintiff, to the extent he believes he is not ready to place the class certification issue to the court, can seek additional time for further investigation or discovery.

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DOE v. ELMBROOK SCHOOL DISTRICT (September 9, 2011)

Prior to 2000, Brookfield Central and Brookfield East High Schools in Brookfield, Wisconsin held their graduation ceremonies in their gymnasiums. The venues were generally considered quite uncomfortable -- hot, cramped, uncomfortable seating. Central's senior class officers for the Class of 2000 recommended to the school and District that the ceremony be moved to the Elmbrook Church, a local non-denominational Christian institution. The school adopted the recommendation and held its graduation ceremony at the Church from 2000 until 2010, when it moved the ceremony to its newly-constructed district fieldhouse. Brookfield East traveled a similar path and held its graduation ceremony at the Church from 2002 until 2010. Both the inside and the outside of the Church reflect its Christian heritage. There are crosses and other religious symbols outside the church. The lobby, through which all visitors must pass, contains religious banners and symbols as well as tables with religious literature. A large cross hangs in the sanctuary, where the ceremony takes place. Bibles and hymnals can be found in all the pews. Several parents objected to the ceremonies' venue. A group of current and former students and their parents brought suit against the District alleging that the practice violated the First Amendment. Chief Judge Clevert (E.D. Wis.) granted summary judgment to the District. Plaintiffs appeal.

In their opinion, Seventh Circuit Chief Judge Easterbrook and Judges Flaum (dissenting in part), and Ripple affirmed. The Court first addressed justiciability, given the renovation of both gymnasiums and the construction of a new fieldhouse. All 2010 ceremonies were held in those facilities and the District has no present intention to use the Church again. But the Supreme Court has said that a defendant's voluntary decision to stop allegedly wrongful conduct does not make a case moot unless the party seeking mootness meets a heavy burden of proving that the behavior cannot be expected to recur. The District did not meet that burden. Although the District does not currently intend to use the Church again, it has not officially ruled it out. Next, the Court addressed the fact that the plaintiffs were proceeding anonymously, as Does. Although anonymous litigation is disfavored and the Court was mildly critical of the district court's failure to explain his reasoning in granting the motion, the Court nevertheless found no abuse of discretion. Nothing in the record suggests that the district court did not carefully consider the question and apply the proper legal standard and the basis for the ruling is fairly apparent from the eight sworn declarations presented by the plaintiffs. Given the intensely emotional nature of religious beliefs and the fact that some of the plaintiffs are children, the district court was well within its discretion to conclude that the plaintiffs' privacy interest outweighed the public interest in transparent judicial proceedings. The Court turned to the merits. The Supreme Court developed a three-pronged test in Lemon for Establishment Clause cases. A practice violates the clause if it has no legitimate secular purpose, if it advances or inhibits religion as its primary effect, or if it fosters excessive entanglement with religion. The Court concluded that the District did not violate the First Amendment: a) the students were not forced to participate in any religious exercise, as was the case in Lee, b) the iconography was not associated with the District, c) an objective observer would not assume that the presence of religious paraphernalia suggested the District’s endorsement thereof, d) the District has not sponsored any religious display, e) the students and the district selected the Church for totally secular purposes, f) there is no evidence that the Church used the event to influence the ceremony or that the District used the event to endorse religion, and g) the use of taxpayer funds for the Church rental was appropriate as a standard fee for use arrangement.

Judge Flaum concurred in the majority's opinion with respect to justiciability and anonymity but dissented on the merits. He concluded that a public school graduation at a church where there are both live human beings and inanimate objects urging religious messages on children violated the Establishment Clause. In his view, the venue's "sheer religiosity" conveyed a message of District endorsement.

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BRENEISEN v. MOTOROLA (September 2, 2011)

Motorola employed James Breneisen in several different positions between 1994 2003. In early 2001, he took 12 weeks FMLA leave for gastroesophageal reflux treatment. Upon his return, although he retained his prior salary, he was assigned to a different position, which he considered a demotion. Just a few weeks later, he took another four months leave for esophageal surgery. He took his third and final leave in early 2002, from which he never returned. Motorola terminated his employment in 2003. Breneisen brought an FMLA claim against Motorola, alleging that his supervisor's conduct exacerbated his medical condition. The district court granted summary judgment against him. On appeal, the Seventh Circuit reversed and remanded. The only claims that remained on remand were Breneisen's discrimination and retaliation claims during the five months between his second and third leaves. At Motorola's request, Magistrate Judge Mahoney (N.D. Ill.) barred evidence of any causal relationship between Motorola's conduct and Breneisen's medical condition. The court then dismissed the case, finding that Breneisen’s requested relief was unavailable during the time when he was unable to perform his job, given that he had exhausted his FMLA leave during his first leave. Breneisen appeals.
     Anna Lineweaver also worked at Motorola. She also claimed that Motorola violated her FMLA rights when it denied her tuition reimbursement and retaliated against her for taking a leave. The Seventh Circuit also reversed and remanded the district court’s summary judgment ruling against her. On remand, Motorola tendered her twice the amount she claimed she was owed. Magistrate Judge Mahoney denied her request to convert Motorola’s tender to a judgment and dismissed the case as moot. Lineweaver appeals.

In their opinion, Seventh Circuit Judges Bauer, Kanne, and Evans (who, as a result of his death, took no part in the decision) affirmed. The Court first addressed Breneisen's claim and concurred with the lower court that the cause of one's injury is irrelevant under the FMLA. The Court added that, even if such was not the case, it would be irrelevant to Breneisen because his second leave was not pursuant to the FMLA. He was no longer protected by the statute when the alleged retaliation occurred. The Court turned to Lineweaver's claim. It noted that the only interest she has left is her claim for attorney's fees. It is well settled that a claim for attorney's fees, in and out itself, is not enough to constitute a case or controversy. The district court properly dismissed the case as moot. 

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PAKOVICH v. VERIZON LTD PLAN (July 22, 2011)

Lisa Pakovich became disabled during her employment with Verizon. Verizon denied her request for long-term disability benefits under its ERISA plan. Although the district court affirmed the denial, the Seventh Circuit reversed and remanded to the plan administrator for a new determination. Pakovich heard nothing from the administrator for almost 5 months so she filed another suit. Shortly thereafter, the Plan agreed to pay all the benefits she requested and moved to dismiss her suit as moot. Judge Reagan (S.D. Ill.) denied the motion, entered judgment for Pakovich in the amount the Plan agreed to pay, but denied Pakovich's fee motion.

In their opinion, Seventh Circuit Judges Flaum, Evans, and Tinder vacated in part and affirmed in part. The Court first agreed with the Plan that Pakovich's case was moot. The Plan agreed to pay everything she asked for in her claim for benefits. Her fee request did not prevent her case from being moot. The Court next considered whether the district court even had jurisdiction of her fee claim. Relying on its FOIA jurisprudence, the Court concluded that a district court retains equitable jurisdiction to address a fee claim. Addressing the merits of the fee claim, the Court noted that a fee award under ERISA has two elements. First, the claimant must show "some degree of success on the merits." Second, the defendant's position must be not substantially justified. The Court ultimately determined that it did not need to decide either of those elements. Here, the district court denied her fee request because of inadequate documentation and support for either the hourly rate or the time spent. It was her burden to adequately support her request. The district court did not abuse its discretion when it denied fees.

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STONE v. BOARD OF ELECTION COMMISSIONERS FOR THE CITY OF CHICAGO (May 4, 2011)

The City of Chicago requires that mayoral candidates collect 12,500 registered voter signatures over a 90 day period in order to be listed on the ballot. A number of individuals brought suit in federal court, alleging constitutional violations. In late 2010, the plaintiffs moved for a preliminary injunction. They sought to prohibit enforcement of the signature requirement for the February 2011 election. Judge Dow (N.D. Ill.) denied their request for an injunction. Plaintiffs appeal.

In their opinion, Judges Kanne, Rovner, and Sykes dismissed. The Court noted that the February 2011 election had taken place two months before the appeal was even argued. The only relief plaintiffs sought in their motion for a preliminary injunction related to that election. The relief they seek is no longer available. The Court noted that it lacks the power to decide questions that cannot affect litigants’ rights. The Court noted the familiar "capable of repetition, yet evading review" mootness exception. But that exception does not apply here. The plaintiffs' claims will not evade review. Their underlying suit challenging the constitutionality of Chicago's signature requirement remains pending.

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CZARNIECKI v. CITY OF CHICAGO (January 21, 2011)

For a few months in late 2006 in early 2007, Wojciech Czarniecki was a probationary police officer with the Chicago Police Department. He alleges that Assistant Deputy Superintendent Tobias made several negative references to his Polish ancestry in a discussion about Czarniecki's use of exam study guides. He alleges that his dismissal followed shortly thereafter and that another Polish probationary officer was dismissed at about the same time. He brought suit under § 1983 against the City and Tobias, alleging national origin discrimination in violation of the 14th Amendment. The district court granted summary judgment to the City. Shortly before trial, the court granted Czarniecki's motion to dismiss his claim against Tobias without prejudice - but conditioned the dismissal on a requirement that he seek her permission if he ever wanted to refile it. Czarniecki appealed that order because of its refiling condition, then sought permission to refile and appealed that order when the court denied permission on the grounds that his first appeal deprived her of jurisdiction. A few months later, Czarniecki filed a new complaint alleging national origin discrimination in violation of Title VII of the Civil Rights Act of 1964, naming only the City. Judge St. Eve (N.D. Ill.) dismissed the complaint on res judicata grounds. Czarniecki appeals.

In their opinion, Seventh Circuit Judges Bauer, Flaum, and Hamilton consolidated the three appeals, affirmed the res judicata dismissal, and dismissed the other appeals as moot. The Court noted the three familiar ingredients of federal res judicata (federal res judicata applies when the earlier judgment was in federal court): a final decision, a dispute arising out of the same operative facts, and the same parties. The Court found that the three requirements were met here. There is no dispute that the earlier decision against the City was final, the parties are the same (the fact that Tobias is not a defendant in the second suit is of no consequence), and the claim arises from the same operative facts. The fact that he sets forth a new theory of liability, even with different proof requirements, does not change the res judicata result. The Court also rejected Czarniecki's argument that res judicata should not apply because he lacked a "right to sue” letter at the time of his first complaint and could not have brought a Title VII claim. The Court concluded that Czarniecki had several ways in which he could have dealt with that situation -- splitting his claims was not one of them. Finally, the Court dismissed as moot Czarniecki's two other appeals since both only dealt with his ability to refile.

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PARVATI CORP. v. OAK FOREST (December 23, 2010)

In early 2004, Parvati Corp. decided to sell a motel it owned in Oak Forest, Illinois to Bethlehem Enterprise, Inc. The sale was contingent on Bethlehem's ability to secure municipal permission to operate a senior-living facility on the site. The Oak Forest Zoning Commission denied the request in early 2006, citing a recently enacted ordinance that prohibited the requested use. Parvati and Bethlehem filed suit seeking judicial review of the administrative decision. They also sought money damages under federal statutory and constitutional claims. Judge St. Eve (N.D. Ill.) affirmed the administrative decision and dismissed a state law administrative review count. She then, on plaintiffs' motion, dismissed the federal statutory and constitutional claims and entered final judgment. Several months later, Parvati (without Bethlehem) filed a new lawsuit reasserting the federal statutory and constitutional claims. After several more months, Parvati moved for post-judgment relief in the original case on the grounds that the City had misrepresented the validity of the ordinance on which it relied. The City responded on the merits but also maintained that Parvati lacked standing because it had since conveyed the property to its lender in lieu of foreclosure. The district court found that Parvati had standing, notwithstanding the sale of the property, because of the potential preclusive effect of the judgment on Parvati's new lawsuit. On the merits, however, the district court rejected the request for post-judgment relief because Parvati could have raised the ordinance’s invalidity before judgment. Parvati appeals.

In their opinion, Associate Justice O'Connor (Ret.) and Seventh Circuit Judges Williams and Sykes vacated and remanded with instructions to dismiss for want of jurisdiction. The Court addressed the central issue of standing. Parvati certainly met all the standing requirements at the inception of litigation. It owned the property and suffered an actual injury traceable to the City's conduct. Once it transferred ownership of the property, however, it lost its standing. First, the available relief cannot help its cause. Next, the Court then rejected the district court's basis for standing -- the refiling of the federal statutory and constitutional claims. The Court noted that constitutional standing requires that the injury be "fairly traceable" to the City's conduct. Here, the injury (the potentially preclusive effect of the earlier judgment) is not traceable to any conduct of the City. Instead, it is traceable exclusively to Parvati‘s litigation strategy and conduct. The potential injury would not exist had Parvati pressed its statutory and constitutional claims in the original litigation. Thus, Parvati lacks standing and the court should not have entertained its motions.

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WILSON v. O'BRIEN (September 3, 2010)

Robert Wilson was convicted of attempted murder in state court. After that conviction was set aside, Wilson brought suit against the City of Chicago and others pursuant to § 1983. During discovery, the defendants attempted to depose Tyler Nims. While a law student, Nims had assisted Wilson with his defense. Nims asserted the attorney work-product privilege and refused to answer questions. After the district court ordered Nims to answer, he complied. Wilson (the party) and Nims (the nonparty) both appeal.

In their opinion, Chief Judge Easterbrook and Judges Kanne and Hamilton dismissed for lack of jurisdiction. The appeal raised interesting issues under the Cohen collateral-order doctrine in light of Mohawk Industries. After a short discussion of those issues, the Court tabled them. A necessary premise in considering an interlocutory appeal from an order concerning the disclosure of privileged information is that the person ordered to disclose has refused to so. Here, Nims complied with the district court's order -- his matter is moot. Likewise, with respect to Wilson, there is nothing the Court can do to protect the confidentiality of the already disclosed information. Wilson's opportunity to challenge the district court's decision will come after a final decision in the district court.

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BAUER v. SHEPARD (August 20, 2010)

Indiana Right to Life, Inc. sends questionnaires to judicial candidates for election or retention. The questionnaires seek information on the recipient's views on abortion. The organization filed suit challenging certain provisions of Indiana's Code of Judicial Conduct relating to the political activities of judges and candidates for judicial office. The suit was dismissed for lack of standing. In the present suit, the organization is joined by a sitting judge and a candidate for judicial office. The plaintiffs challenge five provisions of the code, four current and one which was in effect in 2008: a) the current and former rules forbidding "commitments that are inconsistent with the impartial performance of judicial office," b) the rule requiring recusal of a judge if he or she made a public statement "that commits or appears to commit the judge to reach a particular result," c) the rule limiting the partisan political activities of judges, and d) limits on fundraising. Judge Springmann (N.D. Ind.) concluded that the challenge to the earlier version of the code was moot and concluded that the challenged sections of the current code were all constitutional. Plaintiffs appeal.

In their opinion, Chief Judge Easterbrook and Judges Manion and Evans affirmed as modified. The Court first concluded that the individual plaintiffs had standing because of the threat to prosecute and the probability of future injury. Next, the Court addressed the challenge to the no-longer current section of the code. It disagreed with the lower court's finding of mootness. The code's amendment in 2009 did not eliminate the possibility of a prosecution for an earlier violation. Nevertheless, given the significant number of unlikely steps that must occur before such a prosecution, the Court concluded that the matter was not ripe for adjudication. The Court then addressed the merits of the challenge to the four current provisions in light of the Supreme Court's decision in White and the Court's own decision earlier this year in Siefert. The Court held: 1) The solicitation prohibition is fundamentally the same as the one the Court upheld in Siefert. It is not facially unconstitutional and the state should be given an opportunity to make exceptions as appropriate. 2) Although Siefert did not address political leadership roles and speechmaking, it did uphold a prohibition on public political endorsements. Its analysis led the Court to conclude that the preservation of public confidence in the judiciary is enough of a compelling interest to uphold the leadership and speechmaking prohibitions of the Indiana code. White dealt with limitations on the judge's own positions -- it did not affect precedent dealing with a judge's impact on the other elections. 3) With respect to the "commits" provision, the Court distinguished between the questionnaire, which asked for a candidate's views on certain topics and which the Supreme Court said was allowable, and the code provision, which only prohibits commitments "inconsistent with the impartial performance" of one's office. The Court did recognize some vagueness in the language. However, instead of identifying hypothetical situations in which the state may act too broadly, the Court chose to assume that the state would act reasonably and continue to refine the meaning of the provision through the administrative processes. 4) Finally, with respect to the recusal provision, the Court found no constitutional issue at all. The recusal clause does not address a judge's role as candidate -- it addresses a judge's role as public employee. Under Garcetti, a judge's speech in his role as a judge is not protected speech. Furthermore, a state has every right to allocate a court case to a judge whose impartiality is not open to debate.

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MINIX v. CANARECCI (February 26, 2010)

While on leave from a mental hospital where he was a patient, Gregory Zick was arrested and incarcerated in the St. Joseph County Jail. The jail provided medical and mental health services through contracts with third-party vendors Memorial Home Care and Madison Center. Jail personnel became aware during Zick's booking that he had attempted suicide in the past and was taking medications to treat his suicidal thoughts. Zick was originally put in medical segregation and on suicide watch. He was transferred into the general population, however, a few days later after he denied having suicidal thoughts. About a month later, he was placed back in medical segregation after he refused to take his medication and a jail officer noticed a razor blade missing. Again, after a few days, he was released from medical segregation because he was alert and denied thoughts of suicide. Later that night, he hanged himself with a bed sheet. Cathy Minix, his personal representative, brought an action pursuant to § 1983 against the Sheriff, the medical providers, and several jail employees. She alleged violations of the Eighth and Fourteenth Amendments based on the defendants' display of deliberate indifference. The district court granted summary judgment to all defendants except the Sheriff. Minix then accepted an offer of judgment from the Sheriff. She appeals the summary judgment rulings in favor of Memorial Home Care and its employee Dr. David, Madison Center and its employee Christine Lonz, and the supervisor of the nursing staff, Jeanne James.

In their opinion, Judges Bauer, Kanne, and Tinder affirmed. The Court first addressed its jurisdiction, in light of the offer of judgment and its acceptance. Since the claim against the Sheriff was against him in his official capacity, and therefore could not have included punitive damages under § 1983, the punitive damage claims against the other defendants present a live controversy, even if the acceptance of the offer of judgment limits additional compensatory damages. On the merits, the Court first identified the two elements of an inadequate medical care claim under the Eighth or Fourteenth Amendment: a substantial risk to one's safety because of an objectively serious harm, and deliberate indifference to that risk. A jail suicide case automatically satisfies the first element. The second element requires that each defendant know that there is a substantial risk of suicide -- and intentionally disregard it. The Court addressed each defendant under that standard and found summary judgment proper in each case: a) Lonz was unaware of Zick’s suicidal history or thoughts, b) there was no evidence that Madison Center adopted or condoned any unconstitutional policy and there was no causal link between any Madison Center practice and the suicide, c) Zick's behavior in segregation did not provide Nurse James with actual knowledge of a substantial risk of suicide, d) Dr. David was not directly involved in Zick's treatment, and e) there was a lack of evidence that Memorial Home condoned or adopted an unconstitutional practice.

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THOROGOOD v. SEARS, ROEBUCK & CO. (February 12, 2010)

Stephen Thorogood filed a state court class-action on behalf of the purchasers of stainless steel dryers in multiple states. He alleged that the defendant’s representation that the dryers were made of stainless steel violated the consumer protection acts of those states. The defendant removed the case to federal court under the Class Action Fairness Act (CAFA). Although the district court certified a class, the Seventh Circuit reversed and ordered the class decertified (intheiropinion.com post). The Court thought the case was not only a weak candidate for class certification, but also flimsy on its own merits. On remand, the defendant made an offer of judgment, inclusive of attorneys fees, of $20,000. Finding that that offer exceeded plaintiff's maximum recovery under state law of $3,000 and therefore the amount in controversy, the district court dismissed the case as moot. Thorogood appeals.

In their opinion, Judges Posner, Kanne, and Evans affirmed. The Court first rejected plaintiff's argument that the case should have been remanded upon class decertification, relying upon its decision in Cunningham Charter (intheiropinion.com post) just three weeks earlier. Then, the Court rejected the plaintiff's argument that the case was not moot because of his entitlement to significant attorneys’ fees. First, an award of fees for value conferred beyond the relief obtained must generally be relief ordered by the court. Second, the court was within its discretion in deciding that no fees were warranted. Finally, the Court noted that most of the fees were incurred pursuing the failed class action, not the $3,000 individual action.

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 WALKER v. CALUMET CITY (May 15, 2009)

Calumet City passed an ordinance under which real property had to pass an inspection and be in compliance with city codes before it could be sold. Ayanna Walker sued the City. She alleged that the ordinance unreasonably restrained her ability to sell her property, that the ordinance violated procedural due process, and that the ordinance prevented her from selling her “non-conforming" property. While the complaint was pending, the property was inspected under a different city ordinance. Once the property was certified as in compliance, the City moved to dismiss the case as moot. The district court dismissed the case as moot and also awarded Walker her attorney fees. The City appeals the award of fees.

In their opinion, Judges Flaum, Manning and Rovner reversed. The Court recognized the prior rule that a court may award attorney fees if a defendant voluntarily provides the relief sought by the plaintiff. In Buckhannon, however, the Supreme Court held that courts may not award fees unless there is a "material alteration" in the relationship of the parties. The Supreme Court gave two examples: a) when the plaintiff has a judgment on the merits, and b) when the plaintiff obtains a consent decree from the court. The Court first noted that Walker's case did not fit within the "judgment on the merits" prong of Buckhannon. With respect to the second prong, the Court, citing its own precedent, concluded that it may allow an award in the case of a settlement agreement if: a) it was mandatory, b) it was captioned "Order", c) it was signed by a judge, and d) it provided for judicial enforcement. Although Walker attempted to fit her award into this framework, she failed to do so and was not entitled to a fee award.

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BOWENS v. QUINN (April 2, 2009)

The Illinois Constitution allows the governor of the state to grant reprieves, commutations and pardons "on such terms as he thinks proper." An Illinois statute provides the procedural framework for the exercise of the governor's power. Twelve people who had filed petitions for clemency brought an action against the governor, alleging a violation of their due process rights under the 14th Amendment because of the governor's failure to act on their petitions within a reasonable time. While a motion to dismiss was pending, the governor acted on the petitions of nine of the plaintiffs, granting one and denying eight. The lower court denied the governor's motion to dismiss. The governor brought this interlocutory appeal.

In their opinion, Judges Posner, Kanne and Wood reversed. The Court first addressed the issue of mootness with regard to the plaintiffs whose petitions had been processed. With respect to those plaintiffs whose petitions were denied, the Court determined that the claims were not moot on the grounds that they met the "capable of repetition, yet evading review" standard of Roe v. Wade. The claim of the plaintiff whose application was granted was, on the other hand, moot. On the merits, the Court concluded that there was no ground for the denial of due process claim. The 14th Amendment does not create a property or liberty interest in obtaining a pardon. The fact that the plaintiffs are not claiming an entitlement to a pardon, but merely an entitlement to a reasonably prompt decision, does not change the result.

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THE CORNUCOPIA INSTITUTE v. UNITED STATES DEPARTMENT OF AGRICULTURE (March 26, 2009)

The Cornucopia Institute submitted three separate FOIA requests to the United States Department of Agriculture ("USDA"). When the USDA failed to respond within the required time period, Cornucopia filed suit for injunctive relief, a writ of mandamus and attorneys fees. While the suit was pending, the USDA produced the responsive documents. The court dismissed the case as moot. The court also denied the request for fees on the grounds that Cornucopia had not "substantially prevailed." Cornucopia appeals.

In their opinion, Judges Manion, Kanne and Kendall affirmed. First, the Court rejected Cornucopia's argument that the lower court’s ability to still grant declaratory relief renders the case not moot. Declaratory relief is appropriate only when the ruling would have an impact on the parties. Cornucopia has failed to make such a showing. The Court concluded that a case must be dismissed when it is impossible for the court to grant any effectual relief – as is the case here.

With respect to attorneys’ fees, the district court concluded that Cornucopia was not a prevailing party under Buckhannon because it obtained no judicial relief. The Court pointed out that Buckhannon’s requirement of judicial relief was eliminated in the OPEN Government Act of 2007 (enacted while the appeal was pending). Because Cornucopia waived any argument that the Act applies retroactively, however, the Court concluded that the district court acted within its discretion in denying the request for fees.

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LASKOWSKI v. SPELLINGS  (October 14, 2008)

In 1999, Congress appropriated $500,000 to the Department of Education (“DOE”) for a grant to the University of Notre Dame to support a teacher quality program. Notre Dame applied for the grant, indicating that the money would support its Alliance for Catholic Education (“ACE”) program. ACE places and trains teachers in Catholic schools in poor neighborhoods. DOE awarded the grant. Laskowski and Cook, two federal taxpayers, sued the Secretary of the DOE, alleging that the appropriation violated the Establishment Clause. The plaintiffs sought to enjoin the award of the money but did not seek preliminary injunctive relief. Notre Dame intervened. By the time the court heard the case, the DOE had already paid the full amount of the grant to Notre Dame. The court dismissed the case as moot. The plaintiffs appealed, conceding their request for injunctive relief was moot but contending that other remedies were available. The Seventh Circuit panel agreed that the court could not order the DOE to attempt to recover the money from Notre Dame but split on whether the court could order Notre Dame to repay the disbursed funds, if the appropriation violated the Establishment Clause. The majority reversed the dismissal, holding that it could so order. The United States Supreme Court granted certiorari, vacated the judgment, and remanded for reconsideration in light of their decision in Hein v. Freedom From Religion Found.

In their opinion, Judges Posner, Evans, and Sykes affirmed. The only issue facing the Court was whether the plaintiff taxpayers had standing to seek restitution of the grant money from Notre Dame to the U.S. Treasury. The panel began with the general standing rule that payment of taxes is a very generalized interest and usually not enough to establish standing to challenge the constitutionality of government activity. The Court focused on the one exception to the rule. The Supreme Court decided in Flast that a taxpayer could seek to enjoin a specific appropriation of Congress as a violation of the Establishment Clause if the appropriation was made pursuant to Congress’ Article 1, Section 8 taxing and spending power.  

Hein presented a slightly different twist to the standing issue. The Hein taxpayers brought an Establishment Clause challenge to an Executive Branch program funded out of its own general appropriations.  A divided panel of the Seventh Circuit found standing.  The Supreme Court reversed. A three-justice plurality declined to extend the Flast exception beyond the congressional action facts present in the case but also stopped short of overruling Flast, a result preferred by the two-justice concurrence. After the decision in Hein, the panel noted, the Flast exception is now strictly limited to its facts. The only relief for which the taxpayers have standing is injunctive, which is no longer available here. The case is moot and was properly dismissed.

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