ILLINOIS STATE BAR ASSOCIATION

Illinois Courts Bulletin
VOLUME 43 SPRINGFIELD, ILLINOIS, MAY, 1998 NUMBER 9

Supreme Court of Illinois

OPINIONS

CIVIL CASES

INSURANCE

State Farm Mut. Auto Ins. Co. v. Universal Underwriters, No. 82837 (4/16/98). Appeal, 2nd Dist. Aff'd.

Car dealer's garage ins. policy covers liability of separately insured customer involved in accident while test driving one of dealer's vehicles. 5 pp.

JURISDICTION

Dept. of Cent. Mgmt. Services v. AFSCME, No. 82525 (4/16/98). Appeal, 4th Dist. Vac'd and dism'd.

App. Ct. did not have jurisdiction of appeal from order of Cir. Ct. den'g application to vac. arbitrator's award where order lacked finality because Cir. Ct. did not confirm award and enter judgment. 4 pp.

Niccum v. Botti, Marinaccio, DeSalvo & Tameling, Ltd., No. 83214 (4/16/98). Appeal, 1st Dist. Rev'd and rem'd.

Notice of appeal filed from final order including SCR 304(a) finding-though unnecessary to render order appealable-allows App. Ct. to retain jurisdiction even where subsequent motion for sanctions filed and pending in Tr. Ct. (Dissent filed.) 4 pp.

RETALIATORY DISCHARGE

Buckner v. Atlantic Plant Maintenance, Inc., No. 83321 (4/16/98). Appeal, 1st Dist. Aff'd.

P may not bring retaliatory discharge action against employee or agent who, on behalf of P's former employer, discharged P in alleged violation of public policy (pursuing workers' comp. claim). Only proper D in retaliatory discharge action is P's former employer. (Dissent filed.) 15 pp.

TAXATION

Texaco-Cities Services Pipeline Co. v. McGaw, No. 82988 (4/16/98). Appeal, 1st Dist. Aff'd.

Income from P's sale of pipeline and associated assets located in Ill. was business income apportionable under "barrel miles" formula of 35 ILCS 5/304(d)(2). (Dissent filed.) 20 pp.

CRIMINAL CASES

DEATH PENALTY

People v. Bounds, No. 81040 (4/16/98). Appeal, Cook Co. Rev'd and rem'd.

Dism'l of capital post-conviction pet. rev'd and rem'd for further proceedings because no notice to D's counsel that pet. would be ruled on date scheduled for status only; thus, procedural due process den'd. 3 pp.

People v. Harris, No. 80084 (4/16/98). Appeal, Cook Co. Aff'd.

D's arguments that: he was not proven guilty of attempted armed robbery; Tr. Ct. erred in permitting certain evidence concerning car occupied by D, and his atty. ineffective for not objecting to its introduction at trial, and for other reasons; Tr. Ct. erred in limiting certain cross-examination; he was den'd fair sentencing hearing for various reasons; death penalty statute unconstitutional; all without merit. (Dissent filed.) 42 pp.

People v. Johnson, No. 79923 (4/16/98). Appeal, Cook Co. Aff'd.

D's argument that Tr. Ct. erred in den'g motion to suppress confession and that he was improperly and unconstitutionally found eligible for death penalty without merit. 14 pp.

People v. Manning, No. 81393 (4/16/98). Appeal, Cook Co. Rev'd and rem'd.

Erroneous admission of evidence of other crimes and hearsay testimony of victim's wife require rev'l of conviction. (Dissent filed.) 20 pp.

MURDER

People v. Dekens, No. 82839 (4/16/98). Appeal, 3rd Dist. App. Ct. rev'd; Cir. Ct. rev'd and rem'd.

D may be charged with 1st degree murder, on felony-murder theory, where decedent is co-felon who is killed by intended victim of D and co-felon. (Dissent filed.) 12 pp.

Appellate Court of Illinois

OPINIONS

CIVIL CASES

ANIMAL CONTROL ACT

1st Dist. Frost v. Robave, Inc., No. 1-97-2105 (4/21/98). Cook Co. Aff'd.

Where owner-employee of business occasionally takes his dog to work and, during such visits, dog given food and water, business entity not harborer or keeper of dog and thus not liable for attack occurring off business premises after business closed for day. 15 pp.

APPEALS

1st Dist. Village of Glenview v. Buschelman, No. 1-96-1667 (4/14/98). Cook Co. Dism'd.

Where Tr. Ct. den'd Ds' pet. to vac. judgment under Code of Civ. P. section 2-1401, dism'l was final judgment. As Ds failed to make timely appeal, ct. lacked jurisdiction to entertain 2nd section 2-1401 pet.; thus, because Ds' only basis for app. jurisdiction was timely notice of appeal from Tr. Ct.'s dism'l of 2nd pet., App. Ct. lacked jurisdiction to consider merits of Ds' arguments. 12 pp.

2nd Dist. Dept. of Public Aid v. Lekberg, No. 2-97-0074 (4/13/98). DuPage Co. Dism'd.

Paternity order that decided only issues of parentage and temporary support while reserving other substantive support issues not final and appealable despite its SCR 304(a) language. 7 pp.

ARBITRATION

1st Dist. Allstate Ins. Co. v. Avelares, No. 1-97-0795 (4/14/98). Cook Co. Aff'd.

Failure of D to participate in arbitration hearing in good faith warranted Tr. Ct.'s den'l of D's request for reimbursement of statutory jury demand fee and arbitration award rejection fee. 7 pp.

ATTORNEY FEES

3rd Dist. Casey v. Jerry Yusim Nissan, Inc., No. 3-97-0446 (4/21/98). DuPage Co. Rev'd.

Dist. Ct. erred in awarding D, who prevailed in P's consumer fraud action under 815 ILCS 501/1, $30,000 in fees. P's expert supported P's theory that D sold P defective car; award of fees for D inappropriate where supportive testimony by P's expert precluded finding of bad faith. 12 pp.

4th Dist. In re Estate of Shull, No. 5-97-0362 (4/3/98). Macon Co. Rev'd and rem'd.

Tr. Ct. abused discretion in awarding only $500 of atty. fees totaling over $3000 and none of $304 costs where work done in good faith, efficiently, unique issues required research, and estate of significant size. Fact petitioner (temp. guardian) not appointed guardian not determinative since estate benefited by ultimate appointment of relative as guardian of person and bank as guardian of estate. 12 pp.

ATTORNEY'S LIEN

4th Dist. Lewsader v. Wal-Mart Stores, Inc., No. 4-97-0460 (4/3/98). Champaign Co. Rev'd and rem'd w/dir.

Tr. Ct. has discretion to find equitable atty.'s lien where facts and circumstances warrant, but must limit award based on contribution of deceased atty. to eventual recovery. 20 pp.

CHILD CUSTODY

2nd Dist. In Re Marriage of Karonis, No. 3-97-0226 (4/23/98). DuPage Co. Aff'd.

Tr. Ct. did not err in allowing GAL (guardian ad litem) to listen to tape recorded phone conversations between respondent and his children. Assuming arguendo that recordings violated eavesdropping statutes, GAL is allowed to consider all kinds of information regarding child, both admissible and inadmissible at trial. 11 pp.

3rd Dist. Carlsten v . Robertson, No. 4-97-0810 (3/30/98). Peoria Co. Aff'd.

Tr. Ct. did not abuse discretion in granting D's motion to dism. for lack of jurisdiction child custody pet.; Ill. lacked jurisdiction under 750 ILCS 35/4(a) since Va., where ct. awarded custody of children to D, had more significant connections to children and was proper forum to contest modif. of custody order. Fact D moved to N.C. did not deprive Va. of jurisdiction over children even though D had custody. 5 pp.

3rd Dist. In re Marriage of Feig, No. 4-97-0648 (5/1/98). Iroquois Co. Aff'd.

1. Maternal grandparents of child subject to custody dispute had standing to intervene under IMDMA section 601(b)(2) since record showed: grandparents had primary physical custody for most of child's 8 yrs. of existence and provided for child's day to day care; mother of child sporadically left child in sole care of grandparents and father admitted to grandparents after filing custody modif. pet. that he would agree to their having custody as long as mother did not have custody.

2. Grandparents did not waive right to intervene even though they declined ct.'s invitation to do so and voluntarily dism'd prior intervention pet. prior to filing instant pet. which came 3 yrs. after issue litigated by parents. While waiver found after 3 yr. delay in Sechrest, 202 Ill.App.3d 865, waiver inapplicable where grandparents appeared with counsel at every hearing during dispute and delay caused by other factors outside parties' control. 11 pp.

CHILD SUPPORT

4th Dist. Dept. of Public Aid, ex rel. Jones v. Jones, No. 4-96-0734 (3/25/98). Morgan Co. Aff'd in part, rev'd in part and rem'd.

In action under RURESA for child support, Tr. Ct. cannot consider and enforce order for arrearage in child support entered in divorce proceeding. 14 pp.

CONSPIRACY

1st Dist. Bilut v. Northwestern University, No. 1-96-3429 (3/26/98). Cook Co. Aff'd.

Complaint by P-Ph.D. candidate that D-university and professor conspired to wrongfully assume control of P's property and fraudulently misled P as to reasons for P's dism'l from Ph.D. program properly dism'd. Ds, as employer and employee, legally incapable of conspiring with one another. 16 pp.

CONVERSION

1st Dist. Chicago Dist. Council of Carpenters Welfare Fund v. Gleason & Fritzshall, No. 1-97-0835 (3/30/98). Cook Co. Rev'd and rem'd.

Where tortfeasor's insurer made out settlement check to union member, union member's atty. and union welfare fund that paid member's med. expenses but atty. may have lacked authority to endorse name of welfare fund's benefits coordinator to check, welfare fund entitled to trial on question of fund's interest in check. 14 pp.

DISSOLUTION OF MARRIAGE

4th Dist. In re Marriage of Neuman, No. 4-97-0624 (3/25/98). Vermilion Co. Aff'd.

Where parties agreed to specific amount of maintenance knowing add'l benefits of some sort coming through Social Security disability but did not limit maintenance by amount actually received, no change of circumstances occurred when benefits received. (Dissent filed.) 14 pp.

DRIVER'S LICENSE

2nd Dist. People v. Brodack, No. 2-97-0291 (4/24/98). Lake Co. Aff'd.

Arresting officer possessed sufficient facts to justify investigatory stop where D's car matched description, partial license no. and general location of car identified in reckless driving complaint. Correct standard to be applied in asserting whether investigative stop justified is not probable cause to arrest or search, but rather whether officer has articulable suspicion that vehicle or occupant is subject to seizure for violation of law. Under circumstances here, Tr. Ct. did not err in den'g D's motion to suppress evidence and pet. to rescind statutory summary suspension of his driver's license. (Dissent filed.) 13 pp.

EMINENT DOMAIN

3rd Dist. Lakehead Pipeline Co. v. Ill. Commerce Comm'n, No. 3-97-0524 (4/7/98). Pet. for review. Aff'd.

1. ICC did not err in interpreting 220 ILCS 5/15-401(b) as requiring pipeline carrier seeking eminent domain authority to obtain land for construction of new pipeline to demonstrate "public need" for new pipeline. Plain language of section 401(b) requires such consideration which does not violate commerce clause since state permitted to regulate eminent domain powers.

2. ICC did not err in considering as "public need" under Roy, 322 Ill. 452, public consisting of more than limited number of market players or private interests. Record showing that crude oil needs met both currently and in future through other sources, and that add'l pipeline had no impact on market price, sufficient to support decision that pipeline carrier failed to demonstrate public need for new pipeline in den'g application for certificate under section 401. 22 pp.

EMPLOYMENT DISCRIMINATION

3rd Dist. Davis v. Haas & Haas, Inc., No. 2-97-0735 (4/21/98). Whiteside Co. Aff'd.

Tr. Ct. properly granted D's motion for summary judgment in action seeking to enforce HRC order in favor of P on marital status claim based upon identity of P's spouse. Under Boaden, 171 Ill.2d 230, HRC lacked jurisdiction over P's cause of action since marital status action did not encompass claim based upon identity of spouse. Thus, HRC order subject to collateral attack in instant enforcement action. (Dissent filed.) 11 pp.

3rd Dist. Reeise v. Ill. Dept. of Human Rights, No. 4-97-0658 (mod. op. 3/30/98). Pet. for review. Aff'd.

Record supported chief legal counsel's order aff'g dept.'s finding that petitioner-janitor failed to produce substantial evidence to support charge of race and handicap discrimination. Although petitioner received 30-day suspension for failing to properly clean room and co-janitor received only verbal warning, co-janitor not similarly situated since he lacked prior suspension. 6 pp.

3rd Dist. Wanless v. Ill. Human Rights Comm'n, No. 4-97-0480 (4/28/98). Pet. for review. Aff'd.

Comm'n properly found 75-yr.-old complainant not "employee" under 775 ILCS 5/1-101 et seq. where respondent-bank forced him off its bd. of directors. Although complainant received legal fees for work done for bank and fees for performance of duties on bd. of directors, neither form of compensation "remuneration" under Act. Legal fees received when complainant acted as independent contractor, and director duties more properly viewed as employer rather than employee position. 5 pp.

ENVIRONMENTAL LAW

2nd Dist. People ex rel. Ryan v. McHenry Shores Water Co., No. 2-97-0500 (3/27/98). McHenry Co. Aff'd.

Tr. Ct. possessed authority under 415 ILCS 5/42(e) to enjoin Ds from violating Pollution Control Bd. regulations notwithstanding fact that complained of water supply found to be bacteriologically safe for consumption. 16 pp.

EVIDENCE

1st Dist. Wade v. City of Chicago Heights, No. 1-96-3929 (3/31/98). Cook Co. Aff'd in part, rev'd in part and rem'd w/dir.

In personal injury action arising out of collision of P's vehicle with building where P alleged accident caused by hole in street resulting from repairs performed by D-city, Tr. Ct. committed reversible error in excluding evidence of P's blood alcohol at time of accident. Evidence relevant and highly probative on issue of whether P intoxicated or under influence of alcohol at time of collision. Exclusion of evidence deprived D of opportunity to prove accident resulted from P's own negligence in driving while under influence of alcohol. 16 pp.

HIGHWAY CODE

3rd Dist. Co. of Stark v. Co. of Henry, No. 3-97-0507 (4/8/98). Henry Co. Aff'd.

In action seeking reimbursement from D-co. for bridge repair costs under 605 ILCS 5/5-503, P-co. which adjoined D failed to show entire road containing bridge located within 80 rods of co. line in both counties. 14 pp.

IMMUNITY

1st Dist. Independent Trust Corp. v. Chicago Dept. of Water, No. 1-96-2978 (3/31/98). Cook Co. Rev'd and rem'd.

In action against D-water dept. for flooding damage to P's basement, error in dism'g action under 745 ILCS 10/5-103(a). Act does not grant general immunity to munic. water providers; pipe that carries water from water main to fire hydrant not fire fighting equip. or facilities. 11 pp.

INSURANCE

3rd Dist. McKinney v. Am. Standard Ins. Co. of Wisc., No. 3-97-0252 (4/14/98). Rock Island Co. Rev'd and rem'd.

"Amount payable" language in underinsured motorist endorsement of D's ins. policy entitled P-insured to margin between amount received by P from underinsured and actual damages P entitled to recover up to contracted amount of underinsured motorist coverage. Tr. Ct. erred in finding underinsured motorist coverage inapplicable where P already received more from underinsured than amount stated in underinsured motorist policy limit. 9 pp.

3rd Dist. Parker v. Am. Family Ins. Co., No. 3-97-0534 (4/23/98). DuPage Co. Aff'd.

Provision in arbitration clause of ins. policy providing "escape hatch" for awards exceeding minimum limits of Safety Respons. Law, 625 ILCS 5/7-100 et seq., void as contrary to public policy; benefits of such provisions favor only ins. companies. Thus, Tr. Ct. properly entered judgment confirming arbitration panel's award in favor of P-insured even though award greater than minimum limits of Safety Respons. Law. (Dissent filed.) 11 pp.

JUVENILE LAW

1st Dist. In Interest of A.R., No. 1-96-3305 (mod. op. 4/16/98). Cook Co. Pet. for rehearing. Den'd. 14 pp.

LIMITATIONS

3rd Dist. Maldonado v. Creative Woodworking Concepts, Inc., No. 3-97-0334 (4/20/98). Will Co. Rev'd and rem'd.

Tr. Ct. improperly dism'd P's action alleging breach of implied warranty of merchantability under 810 ILCS 5/2-314(2)(c). Although P not party to contract with D, warranty extended to P as employee of purchaser injured in use of product; however, P required to give reasonable notice of alleged defect. Ct. directed on remand to determine whether P's delay of over 11 mos. in filing complaint after knowledge of breach attributable to D constituted "reasonable notice" to D under 810 ILCS 5/2-607. (Dissent filed.) 11 pp.

MEDICAL MALPRACTICE

1st Dist. Dahan v. UHS of Bethesda, Inc., Nos. 1-97-0462 & 1-97-0632, Cons. (3/24/98). Cook Co. Aff'd in part and rev'd in part.

In med. malpractice action, Tr. Ct. erred in reducing award for loss of services by $300,000; ct. did not indicate basis in fact to show award erroneous and testimony sufficient to support award. 22 pp.

1st Dist. Partin v. St. Francis Hosp., No. 1-96-0270 (4/20/98). Cook Co. Aff'd.

Med. malpractice statute of repose under Code of Civ. P. section 13-212(b) is constitutional. Statute does not violate due process or equal protection rights, deny minors access to cts., and is not special legislation. 15 pp.

3rd Dist. Brems v. Trinity Med. Center, No. 3-97-0426 (4/3/98). Rock Island Co. Rev'd and rem'd.

Tr. Ct. erred in dism'g P's med. malpractice action against 2 D-physicians for failure to submit adequate physician report. Instant report satisfied Code of Civ. P. section 2-622 in that: report claimed each physician responsible for care of P; report attributed P's injury to misplaced gastric tube; P received appropriate treatment only by going to another med. facility to correct gastric tube. 10 pp.

3rd Dist. Meusel v. Ballard, Nos. 2-97-0884 & 2-97-0711, Cons. (4/24/98). Whiteside Co. Certified question answered and rem'd.

D-munic. hospital sued for med. malpractice subject to 2-yr. statute of limitations under Code of Civ. P. section 13-212(a) rather than 1-yr. statute of limitation for local public entities under section 8-101 of Tort Immunity Act (745 ILCS 10/8-101); holding conflicts with Tosado, 293 Ill.App.3d 544. 11 pp.

MENTAL HEALTH

1st Dist. C.J. v. DMHDD, No. 1-96-4142 (4/6/98). Cook Co. Aff'd in part, rev'd in part and rem'd.

In action by P-criminal acquittees confined to mental health facility after finding of not guilty by reason of insanity challenging policy that allegedly does not allow facility director to exercise professional judgment to consider whether any of Ps should be recommended for unsupervised, on-grounds pass, error in dism'g counts alleging D-dept. failed to provide constitutionally required conditions of confinement under due process clause of 14th Amendment and that nature of acquittee's commitment bear reasonable relation to purpose for which person committed. 19 pp.

2nd Dist. In re Barry B., No. 2-97-0691 (4/13/98). Kane Co. Aff'd.

405 ILCS 5/2-107.1(a)(6), authorizing involuntary administration of psychotropic medication, requires order granting same to designate persons authorized to administer medication; it does not require that order designate medications or tests to be administered. Respondent's contention that Tr. Ct.'s order subject to rev'l for failing to specify which medications to be administered, without merit. 12 pp.

2nd Dist. Sassali v. Rockford Memorial Hospital, No. 2-97-0635 (4/23/98). Winnebago Co. Rev'd and rem'd.

D not authorized to release P's mental health records to ct. appointed expert under 740 ILCS 110/1 et seq. While such records may be disclosed in civil, criminal or admin. proceeding in which recipient introduces his mental condition as element of his claim or defense, in involuntary commitment proceeding state, not P, places one's mental condition at issue. 7 pp.

MORTGAGE

1st Dist. Citicorp Savs. of Ill. v. Rucker, No. 1-95-3551 (3/26/98). Cook Co. Aff'd in part, rev'd in part and rem'd.

In mortgage foreclosure proceeding where mortgagor permitted ins. on mortgaged property to expire and mortgagee purchased replacement coverage in accordance with provisions of mortgage, allegations in mortgagor's counterclaim that mortgagee failed to timely notify mortgagor that ins. premiums substantially increased raised question of facts as to whether mortgagee breached implied duty of good faith and fair dealing; thus error in dism'g count of counterclaim. 14 pp.

NEGLIGENCE

2nd Dist. Rivas v. Westfield Homes of Ill., Inc., No. 2-97-0545 (3/31/98). Lake Co. Aff'd.

Tr. Ct. properly ruled as matter of law that D owed P no duty of care where stacks of drywall (which caused P's injury) open and obvious. Person of ordinary perception, intelligence and judgment would have known of possibility of stack of drywall tipping if moved. 11 pp.

4th Dist. First Midwest Trust Co. v. Rogers, No. 4-96-0788 (Op. and R. 23, 4/3/98). Douglas Co. Aff'd in part, vac'd in part, rev'd in part and rem'd w/dir.

Where snow plow driver merely drove across highway with blade up, not plowing snow at time of collision, 625 ILCS 5/11-205 irrelevant on issue of whether auto driver contributorily negligent by not assuming snow plow driver had right to be on highway. 23 pp.

NURSING HOME CARE ACT

2nd Dist. White v. Sunrise Healthcare Corp., No. 2-97-0481 (3/31/98). Lake Co. Aff'd and rem'd.

Amendment to 210 ILCS 45/3-602, abolishing triple damages for violations of Act, applies to pending suits no matter when cause of action accrued. 13 pp.

PRIVACY

2nd Dist. Ainsworth v. Century Supply Co., No. 3-97-0616 (4/13/98). DuPage Co. Rev'd and rem'd.

Tr. Ct. erred in dism'g P's complaint for invasion of privacy by appropriating his likeness. D's use of P's image for purpose of advertising D's products and services without his consent and for commercial exploitation was actionable. Mere fact nothing objectionable about P's appearance of no consequence. 11 pp.

PROBATE

1st Dist. Sverid v. First Nat'l Bank of Evergreen Park, No. 1-97-2615 (3/31/98). Cook Co. Aff'd.

Decedent's bequest under will of "all of [decedent's] personal effects, household goods, and all other goods and chattels" did not include stocks and bonds held by decedent at time of death. Decedent did not include in bequest of "personal effects" intangible personal property nor did she make bequest unqualifiedly inclusive of effects of every description. Bequest of "personal effects" was conjoined with bequest of other personalty already categorized as tangible property by Ill. Cts. 7 pp.

4th Dist. First Midwest Trust Co. v. Rogers, No. 4-96-0788 (Op. and R. 23, 4/3/98). Douglas Co. Aff'd in part, vac'd in part, rev'd in part and rem'd w/dir.

P-guardian of estate cannot accept settlement offer after death of ward; 755 ILCS 5/10-4 limits P's authority to preservation of estate as "administrator to collect." 23 pp.

PROCEDURE

1st Dist. Philips Electronics, N.V. v. New Hampshire Ins. Co., No. 1-97-0331 (3/20/98). Cook Co. Aff'd.

In ins. action, Tr. Ct. properly granted stay of proceedings under Code of Civ. P. section 2-619(a)(3) as to counts that raised same core issues as action pending in ct. in England. Stay properly den'd as to counts that involved facts different from those in English action, were not part of policy of coverage and did not arise from same transaction or occurrence. 16 pp.

4th Dist. Mason v. Am. Nat'l Fire Ins. Co., Nos. 4-97-0544 & 4-97-0598, Cons. (3/20/98). Cass Co. Aff'd.

Den'l of 6th motion to amend complaint after summary judgment no abuse of discretion where theory changed from breach of contract to deceptive advertising and negligent misrepresentation. 10 pp.

PROFESSIONAL REGULATION

1st Dist. Krain v. Ill. Dept. of Professional Regulation, No. 1-96-2879 (Mod. op. 4/10/98). Cook Co. Pet. for rehearing. Den'd. 6 pp.

PUBLIC UTILITIES

2nd Dist. Commonwealth Edison Co. v. Ill. Commerce Comm'n, No. 2-97-0657 (3/31/98). Appeal from ICC order. Aff'd.

D's failure to provide explicit explanation of how it balanced benefits and costs when it applies statutorily mandated balancing test to determine whether public convenience standard met did not dictate rev'l of ICC's findings. P sought consent and approval to provide energy support services to energy users. (Dissent filed.) 20 pp.

RESTRICTIVE COVENANT

1st Dist. Woodfield Group, Inc. v. DeLisle, No. 1-97-1737 (3/31/98). Cook Co. Rev'd and rem'd.

Restrictive covenant agreement may meet requirements for ancillarity if it is ancillary to employment relationship even though employment relationship may lack written agreement and remain at will. 13 pp.

SCHOOL LAW

4th Dist. Fayhee v. Ill. State Bd. of Elections, No. 4-97-0446 (Op. and R. 23, 3/20/98). Sangamon Co. Aff'd.

Referendum to reduce property tax rate for school dist. not properly brought pursuant to 35 ILCS 205/162a; Revenue Act inapplicable to school dists. 26 pp.

SCR 137 SANCTIONS

3rd Dist. Toland v. Davis, No. 3-97-0373 (Mod. op. and R. 23, 4/29/98). DuPage Co. Pet. for rehearing. Den'd. 14 pp.

SERVICE OF PROCESS

1st Dist. Fed. Signal Corp. v. Thorn Automated Systems, Inc., No. 1-97-0087 (3/31/98). Cook Co. Aff'd.

Action for tortious inducement of 3rd party to breach contract properly dism'd with prejudice for failure to obtain service of process diligently. P filed suit 5 yrs. after initial breach of contract and obtained service on D 4 mos. later; P obtained discovery after filing suit but before service without notice to D. 12 pp.

SUBROGATION

1st Dist. Hack v. Multimedia Cablevision, Inc., No. 1-97-0159 (4/14/98). Cook Co. Aff'd.

Insurer's subrogation rights extended only to settlement amounts payable to insured by tort Ds for med. expenses incurred by insured as result of accident. 6 pp.

TAXATION

1st Dist. Borden, Inc. v. Ill. Dept. of Revenue, No. 1-96-2408 (3/27/98). Cook Co. Aff'd.

For purposes of 35 ILCS 5/101 et seq., subsidiaries of P-corp. taxpayer properly found to be part of P's "unitary business group." Capital gains P realized from sale of subsidiaries' stock was business income; P treated subsidiaries as it did other subsidiaries which P conceded were part of P's unitary business. P retained control over subsidiaries' financing, tax compliance, and some aspect of purchasing, personnel and marketing. 18 pp.

1st Dist. Brown v. Zehnder, No. 1-96-2983 (4/17/98). Cook Co. Aff'd.

Corp. officer may be personally liable under 35 ILCS 735/3-7 for willful failure to pay corp.'s Retailers' Occupation Tax Act taxes. 10 pp.

1st Dist. Northwest Suburban Fellowship, Inc. v. Ill. Dept. of Revenue, No. 1-96-2195 (4/10/98). Cook Co. Rev'd and rem'd.

Space leased by P-nonprofit corp. from village for meetings of Alcoholics Anonymous and family support groups exempt from real property taxation under 35 ILCS 200/15-60. Rider to lease obligating P to pay "real estate taxes payable" not waiver of tax exempt status; premises open to general public for public purpose of attacking serious public health problem of alcoholism. 18 pp.

WORKERS' COMPENSATION

1st Dist. D.J. Masonry Co. v. Industrial Comm'n, No. 1-96-4131WC (Op. and R. 23, 3/24/98). Cook Co. Aff'd in part and rev'd in part.

Ill. had jurisdiction over workers' comp. claim; while accident occurred in Ind., contract for hire occurred in Ill. when claimant went to Ill. job site and worked for entire day as trial before being told he had done good job and given tax forms. 30 pp.

3rd Dist. Preston v. Bell Trucking, No. 4-97-0526 (4/9/98). Stark Co. Aff'd.

Tr. Ct. properly awarded P-employee reasonable fees and costs under 820 ILCS 305/19(g) where: D-employer, due to failure to file appearance, also failed to file timely pet. for review of arbitrator's decision; and D essentially "refused to pay" claim by filing unsuccessful motion to dism. and motion for sanctions during 9 mo. period following arbitrator's decision. 6 pp.

CRIMINAL CASES

APPEALS

(link not available) 3rd Dist. People v. Hastings, No. 3-96-0731 (Mod. op. 3/30/98). Will Co. Dism'd.

App. Ct. lacked jurisdiction to consider issues in prematurely filed notice of appeal. After notice of appeal filed, D stated on record that he did not want to appeal either murder conviction or 70-yr. sentence. 2 pp.

ARREST

1st Dist. People v. Ornelas, No. 1-96-4232 (4/17/98). Cook Co. Aff'd.

Motion to quash arrest properly den'd; Tr. Ct.'s determination that D's arrest for murder attenuated from initial arrest not manifestly erroneous. 19 pp.

ASSISTANCE OF COUNSEL

1st Dist. People v. Steward, No. 1-96-3680 (3/31/98). Cook Co. Aff'd.

D not den'd effective assistance of counsel. While counsel asserted defenses of consent and self-defense in opening statement, counsel subsequently advised D not to testify as part of trial strategy in light of state's ability to impeach D with prior criminal sexual assault conviction; D's decision not to testify was his alone. 21 pp.

3rd Dist. People v. Connery, No. 3-97-0164 (5/1/98). Kankakee Co. Aff'd.

In prosecution on murder charges, D's counsel not ineffective for calling D as witness. While counsel could be ineffective where no exculpatory evidence produced via D's testimony, D's testimony proffered here to explain presence at murder scene and provide theory that 3rd party actually killed victim. 15 pp.

4th Dist. People v. Paris, No. 4-96-0231 (3/25/98). Sangamon Co. Aff'd.

D's counsel ineffective if firing pin on weapon, which D convicted of unlawfully using, was broken, but no evidence in record. 17 pp.

CONFESSIONS

2nd Dist. In Interest of L.L., No. 2-96-0876 (4/17/98). Winnebago Co. Rev'd and rem'd w/dir.

Tr. Ct. erred in den'g respondent's motion to suppress statements made to police. Respondent, 13-yr.-old minor, who was in special ed class and had apparently limited mental abilities, taken from his home late at night, not allowed to contact his parents, interrogated for lengthy period of time while obviously sleep deprived. Statement obtained under those circumstances cannot be deemed voluntary. 16 pp.

CONTROLLED SUBSTANCES

4th Dist. People v. Hanna, No. 4-95-0881 (4/1/98). Adams Co. Aff'd in part, vac'd in part and rem'd.

Methamphetamine with "L" isomer is a controlled substance unless used in approved form, i.e., Vicks inhaler. 15 pp.

EVIDENCE

2nd Dist. People v. Soteras, No. 2-97-0168 (3/27/98). DuPage Co. Aff'd.

D not prejudiced by revelation of prior felony convictions during jury waiver hearing. State's comment about D's potential eligibility for extended term of imprisonment did not constitute error. D's actual criminal history not introduced into evidence. 22 pp.

2nd Dist. People v. Zurita, No. 2-97-0320 (4/13/98). Lake Co. Rev'd and rem'd.

Tr. Ct. erred in refusing to admit prior inconsistent statements of several witnesses as substantive evidence. Prior statement is deemed inconsistent when it omits significant matter that would reasonably be expected to be mentioned if true. At trial, witnesses identified D as "shooter"; during police statement witnesses identified different individual. 14 pp.

FALSE PERSONATION OF PEACE OFFICER

1st Dist. People v. Ellis, No. 1-96-3085 (3/31/98). Cook Co. Rev'd and rem'd.

Person may be liable under 720 ILCS 5/32-5.1 for false personation of peace officer of real or fictitious jurisdiction. 7 pp.

GUILTY PLEA

3rd Dist. People v. Connery, No. 3-97-0164 (5/1/98). Kankakee Co. Aff'd.

Tr. Ct. did not err in admitting evidence of D's statements made during guilty plea hearing even though plea eventually withdrawn and D went to trial on murder charges. Although SCR 402(f) precludes admission into evidence of statements made during plea discussions which do not result in guilty plea, instant statements made after guilty plea entered. Had statements been made prior to entry of guilty plea, result could have been different. 15 pp.

4th Dist. People v. Wilson, No. 5-97-0182 (3/20/98). Macon Co. Aff'd and rem'd w/dir.

Tr. Ct. did not abuse discretion in refusing to allow D to withdraw guilty plea in "reconvened guilty plea hearing" after accepting guilty plea 3 days earlier following substantial compliance with admonishments under SCR 402. (Dissent filed.) 22 pp.

INSANITY

1st Dist. People v. Grant, No. 1-96-4353 (3/24/98). Cook Co. Rev'd and rem'd w/dir.

Where D found not guilty of murder by reason of insanity and committed to mental health facility, Tr. Ct. erred when it den'd recommendation for D's conditional release. State failed to meet burden of showing by clear and convincing evidence D should not be conditionally released. Ct. improperly requested assurances from D's counsel and D's witnesses that D would not harm himself or others if confronted with stressful situations. 17 pp.

JURY INSTRUCTION

4th Dist. People v. Kidd, No. 4-95-0523 (3/20/98). Sangamon Co. Aff'd as mod. and rem'd w/dir.

D did not present sufficient evidence to warrant 2nd degree murder provocation instruction; no evidence D acted under sudden and intense provocation in hitting victim after others hit victim and victim tried to flee. 19 pp.

KIDNAPPING

3rd Dist. People v. Williams, No. 4-97-0611 (4/7/98). Kankakee Co. Aff'd.

Record contained sufficient evidence to support conviction of attempted aggravated kidnapping. Victims, under age 13, testified that D approached them in car and offered them candy and ride although they refused. Dist. Ct. could infer intent to confine victims in D's car where D fled scene after mother of 1 victim approached him. 5 pp.

MANSLAUGHTER

4th Dist. People v. Caldwell, No. 4-96-0902 (3/20/98). Champaign Co. Aff'd.

Removal of life support by competent 97-yr.-old foreseeable result of D's criminal assault requiring life support and not supervening cause of death. 16 pp.

NEGLECT

2nd Dist. People v. Tellez, No. 2-97-0608 (4/13/98). DeKalb Co. Rev'd and rem'd.

Tr. Ct. erred in ruling criminal neglect of disabled person is unclassified offense and thus a business or petty offense. Penalty section of 720 ILCS 5/12-21 should be read as "[c]riminal neglect of an elderly or disabled person is a Class 3 felony." 7 pp.

POST-CONVICTION

3rd Dist. People v. Stenson, No. 3-96-0875 (4/17/98). Peoria Co. Aff'd.

Tr. Ct. properly dism'd on jurisdictional grounds D's pro se post-conviction pet. filed 8 yrs. after conviction for burglary; pet. untimely under 725 ILCS 5/122-1(c). D's explanation that he received bad advice from inmate law clerks insufficient to show lack of culpable negligence. 5 pp.

PREEMPTION

2nd Dist. People v. Lewis, No. 2-96-0703 (4/17/98). Kane Co. Aff'd.

D's theft prosecution for filing fraudulent unemployment benefits claim with U.S. RR Retirement Bd. not preempted by RR Unemployment Ins. Act. 10 pp.

RECKLESS HOMICIDE

2nd Dist. People v. Beck, No. 2-96-0777 (4/13/98). Ogle Co. Aff'd in part and vac'd in part.

Evidence presented sufficient to support D's reckless homicide conviction. Such evidence included testimony of 2 disinterested witnesses regarding D's drinking, testimony of investigating officer and blood alcohol tests. While intoxication not element of reckless homicide, such evidence probative on issue of recklessness. 20 pp.

SEARCH AND SEIZURE

4th Dist. People v. Cox, No. 4-97-0154 (4/3/98). Vermilion Co. Rev'd.

Where D did not attempt to discard cocaine after lawful stop until officer told him he would be checked for anything that may have been taken from stolen wallet they were seeking, search violated 4th Amendment; plain view doctrine inapplicable even though D pulled cocaine out of pocket prior to search to throw it away. 17 pp.

SENTENCING

2nd Dist. People v. Bahena, No. 2-96-1166 (4/23/98). Lake Co. Aff'd in part, rev'd in part and rem'd.

D may properly move to reconsider his sentence without withdrawing his guilty plea where trial judge exercised any discretion in imposing it. (Dissent filed.) 7 pp.

3rd Dist. People v. Connery, No. 3-97-0164 (5/1/98). Kankakee Co. Aff'd.

Tr. Ct. did not err in sentencing D to natural life for murder conviction even though D presented evidence of rehabilitation. Record showed murder "exceptionally brutal" due to victim's 26 stab wounds; ct. not required to give rehabilitation potential greater weight than other factors. 15 pp.

3rd Dist. People v. Harland, Nos. 3-96-1093 & 3-96-1094, Cons. (4/9/98). Rock Island Co. Aff'd.

Tr. Ct. lacked jurisdiction to consider D's motion to have his Ia. and Ill. sentences served concurrently. Under 730 ILCS 5/5-8-4(a), D, previously convicted and sentenced in Ill., must apply to Ill. Ct. for concurrent sentence treatment within 30 days after sentence imposed in other jurisdiction finalized; instant motion outside 30 day jurisdictional window. 3 pp.

3rd Dist. People v. Luckett, No. 3-97-0183 (3/30/98). Peoria Co. Aff'd.

Tr. Ct. did not abuse discretion in sentencing 15-yr.-old D as adult to 20 yr. term rather than as juvenile. Although D acquitted of 1st degree murder for which he was tried as adult, ct. properly considered state's request for D to be tried as adult as well as statutory elements under 705 ILCS 405/5-4(6)(c)(ii), including fact D committed 2nd degree murder in aggressive and premeditated manner. 10 pp.

VERDICTS

3rd Dist. People v. Luckett, No. 3-97-0183 (3/30/98). Peoria Co. Aff'd.

Jury convicting D of 2nd degree murder yet acquitting D of aggravated battery with firearm did not render legally inconsistent verdicts; both offenses contained at least 1 differing element. Aggravated battery with firearm required D to knowingly cause injury while 2nd degree murder does not require knowledge that act has or will injure victim, but only that act created strong probability of death. 10 pp.

U.S. Court of Appeals

7th CIRCUIT

CIVIL CASES

SECTION 1983 ACTIONS

Ibarra v. Martin, No. 96-3777 (4/23/98). Appeal, N.D. Ill., E. Div. Aff'd.

Dist. Ct. properly granted D's motion for summary judgment in section 1983 action alleging D improperly suspended P-probation officer based upon co-worker's accusation of sexual abuse without affording due process through presuspension procedures. Under Gilbert, 117 S. Ct. 1807, P received adequate presuspension procedure where: P met with supervisors who gave him opportunity to give his version of incident; P learned co-worker filing charges relating to sexual abuse; and D informed P of reasons for placement on suspension. D's continued placement of P on suspension after P acquitted of criminal charges not violative of due process since employer free to terminate employee despite acquittal; P here received full back pay once reinstated. 9 pp.

Staples v. City of Milwaukee, No. 96-3788 (4/10/98). Appeal, E.D. Wisc. Aff'd in part, rev'd in part and rem'd.

Dist. Ct. improperly granted D-city's motion for summary judgment in action alleging D's termination of P-civil service employee for fighting co-worker violated due process. As public employee, P entitled to limited hearing prior to termination. D failed to give P sufficient notice of pretermination meeting where: P became aware job in jeopardy only when he attended meeting; and D affirmatively led P to believe meeting for other reason. 6 pp.

Strasburger v. Bd. of Educ., Hardin Co. Comm. Unit School Dist. No. 1, No. 97-1302 (5/4/98). Appeal, S.D. Ill. Aff'd.

P failed to establish violation of either substantive or procedural due process claim under section 1983 arising out of termination from teaching position; both claims require showing that state remedies for state-created property interest inadequate. (Dissent filed.) 13 pp.

AMERICANS WITH DISABILITIES ACT

Nowak v. St. Rita High School, No. 97-2097 (4/24/98). Appeal, N.D. Ill., E. Div. Aff'd.

Dist. Ct. properly granted D-employer's motion for summary judgment in 42 USC

section 12101 et seq. action alleging D terminated P from teaching based on handicap. P, victim of heart by-pass and amputation, failed to establish status as "qualified individual" under ADA since P: off work for 18 mos. prior to termination; had not attempted to return to work or informed D of intent to return during absence period; and physically unable to work at time of termination. ADA does not require employer to accommodate employee suffering prolonged illness by granting him indefinite leave of absence. 7 pp.

Talanda v. KFC Nat'l Mgmt. Co., No. 97-2025 (4/7/98). Appeal, N.D. Ill., E. Div. Aff'd.

Dist. Ct. properly granted D-employer's motion for summary judgment in 42 USC

section 12101 et seq. action alleging D terminated P in retaliation for P's failure to move subordinate employee with facial disfigurement to another area of restaurant. P failed to show either that employee had qualifying disability or that D's mgmt. perceived employee's facial disfigurement limitation on "major life activity." Evidence failed to show employee's disfigurement, consisting of missing teeth, precluded employee from holding comparable positions in restaurant. 11 pp.

Webster v. Methodist Occup'l Health Centers, Inc., No. 97-1049 (4/23/98). Appeal, S.D. Ind., Indianapolis Div. Aff'd.

1. Dist. Ct. properly granted D-employer's motion for summary judgment in action under 42 USC section 12101 et seq. alleging D terminated P-stroke victim on basis of her handicap. Record showed essence of P's nursing job required that work be unsupervised; P's handicap required P perform any nursing duties under supervision of another nurse.

2. Where P's suggested accommodation unreasonable under ADA, P cannot suggest willingness to do alternative work after termination and argue employer failed in duty to consider reasonable accommodation request. Consideration of P's suggested reasonable accommodation confined to "interactive process" period under ADA. 3 pp.

ANTITRUST

Khan v. State Oil Co., No. 96-1309 (5/5/98). Appeal, N.D. Ill., E. Div. Rem'd w/dir.

On remand from Sup. Ct., App. Ct. found D-gasoline supplier's contract with P, which sold gas to P for 3.25¢ less than suggested retail price and required P to rebate to D difference in price if P attempted to sell gas at more than suggested retail did not violate 15 USC section 1. Supplier free to charge any price it wants to retailers and not under obligation to lower price to retailer merely because retailer wants to resell product for less than suggested retail without sacrificing any profit margin. 3 pp.

ATTORNEY FEES

In re Matter of Agnew, Nos. 97-3376 & 97-3400, Cons. (5/4/98). C. D. Ill. Aff'd.

Bankr. judges setting "presumptive reasonable values" of $575 and $600 for legal fees in consumer bankruptcies filed by atty. not violative of equal protection given record that values set through comparison with other attys.' fees and skills. Because atty. here did not demonstrate services worth more than presumptive values, orders limiting fees to presumptive values not erroneous. 2 pp.

Cook v. Niedert, Nos. 97-1584, 97-1666 & 97-1667, Cons. (4/24/98). Appeal, N.D. Ill., E. Div. Aff'd.

1. Dist. Ct. did not err in using lodestar rather than percentage of award method used by special master in awarding atty. fees to P's attys. in ERISA class action which generated common fund of over $13 million on behalf of P class. While special master used percentage of recovery method which is entitled to "some deference," ct. could properly reject method used by special master where percentage of recovery method resulted in excessive compensation for P's attys. to detriment of class members.

2. Ct. did not err in using 1.5 multiplier in lodestar method to determine reasonable atty. fee. Under Florin, 34 F. 3d 560, use of multiplier required where, in common fund cases under ERISA, P's counsel had no sure source of compensation for services rendered. 12 pp.

Harris Custom Builders, Inc. v. Hoffmeyer, No. 97-3055 (4/9/98). Appeal, N.D. Ill., E. Div. Vac'd and rem'd.

Dist. Ct. erred in failing to demonstrate, in atty. fees order in favor of D under 17 USC section 505, how ct. discretion exercised. While ct. correctly determined D entitled to fees only on successful defense of copyright claim rather than unsuccessful counterclaims, ct. cannot award fees in effort to "make up" for prior erroneous ruling. Moreover, D's rejection of "reasonable settlement offer" could affect D's claim for fees generated after offer. 4 pp.

Jaffee v. Redmond, No. 97-2447 (4/20/98). Appeal, N.D. Ill., E. Div. Rev'd and rem'd.

In fee pet. where P prevailed on section 1983 claim, Dist. Ct. improperly refused under 42 USC section 1988 to award fees generated in losing argument on fed. evidentiary privilege issue. Under Hensley, 461 U.S. 424, ct. may award fees for time reasonably spent on unsuccessful argument in support of successful claim. Such fees may include reasonable time spent on appeal of unsuccessful privilege issue and on 2nd trial of section 1983 claim even though 2nd trial resulted from P's incorrect stance on privilege issue at 1st trial. 12 pp.

BANKING

Richardson v. Nat'l City Bank of Evansville, No. 97-2775 (4/23/98). Appeal, S.D. Ind., Evansville Div. Aff'd.

Dist. Ct. properly dism'd P's action under Nat'l Bank Act, 12 USC section 85, alleging D-bank's inclusion of car ins. premiums into car loan amount it purchased after P failed to purchase same pursuant to terms of car loan constituted "interest" in excess of usury limits under Act. Record showed D added only cost of ins. to P's loan; "interest" under Act does not include ins. premiums which benefit both bank and borrower. 6 pp.

BANKRUPTCY

In re Matter of P.A. Bergner & Co. v. Bank One, Nos. 96-3879 & 96-3937, Cons. (4/9/98). Appeal, E.D. Wisc. Aff'd in part, rev'd in part and rem'd.

1. Debtor, seeking to recover as voidable preferences under 11 USC section 547(b) certain payments made to D-bank which had issued letters of credit on behalf of debtor, had standing to assert claim even though debtor failed to specifically identify claim in bankr. reorganization plan under 11 USC section 1123. Sec. 1123 does not require listing of individual claims debtor wishes to pursue after reorganization; language of plan gave general notice of preserving ongoing legal proceedings of which instant case pending at time of plan.

2. Debtor's payments to D-bank to cover letter of credit qualified as voidable preferences under 11 USC section 547(b) since payments made within 90 days of filing of bankr.; result same even though bank required debtor to prepay amount of funds issued through letter of credit before bank passed funds to creditors. 15 pp.

Giuffre Organization, Ltd. v. Euromotorsport Racing, Inc., No. 97-1146 (4/13/98). Appeal, S.D. Ind., Indianapolis Div. Aff'd.

Share of stock in "CART" which provides right to participate in "Indy car" auto races not "security" for purposes of fed. securities law since ownership of stock brings financial reward through actual racing rather than passive investment. Thus Dist. Ct. correctly held creditors of owners of CART stock may take security interest in income received in auto racing, but must do so through financial statement under Art. 9 of UCC rather than Art. 8. 6 pp.

BLACK LUNG

Lovilia Coal Co. v. Williams, No. 96-2980 (4/29/98). Pet. for review. Aff'd.

1. Under Black Lung Benefits Act, 30 USC section 901, ins. carrier required to pay benefits to mine owner suffering from black lung disease even though owner opted not to purchase workers' comp. ins. for himself. Insurers not permitted under section 726.208 of regulations to provide "partial" coverage even at request of coal mine operator.

2. Act not prohibited by McCarran-Ferguson Act, 15 USC section 1012, from mandating coverage to victims of black lung disease even though Act preempted Ill. state ins. laws. Under American Deposit, 84 F.2d 834, test, Congress intended Act to by-pass McCarran since Act served to effectively spread risk of med. costs among all black lung ins. carriers. 10 pp.

CHOICE OF LAW

Cook v. Winfrey, No. 97-3403 (4/8/98). Appeal, N.D. Ill., E. Div. Aff'd in part, rev'd in part and rem'd.

In defamation action concerning multi-state party, Dist. Ct. in diversity action must apply applicable law of victim's domicile. Ct. may not look to state where greater harm occurred in deciding choice of law issue. 13 pp.

CONTEMPT

U.S. v. Torres, Nos. 96-2477 & 96-2671, Cons. (4/17/98). Appeal, N.D. Ill., E. Div. Aff'd.

1. App. Ct. lacked jurisdiction to consider appeal of civil contempt order entered by Dist. Ct. based upon Ds' misrepresentation of document used in response to motion for summary judgment. Notice of appeal filed prior to entry of order setting amount of sanctions. "Final order" in contempt proceeding requires both finding of contempt and specific dollar amount of sanction where initial sanction order contemplated award of fees and costs.

2. Alternatively, if App. Ct. had jurisdiction to consider appeal, Dist. Ct did not abuse discretion in finding Ds in contempt for submitting page from 1985-86 Sullivan's Law Directory and labeling page "1984 Sullivan's Law Directory." Ds' conduct intended to deceive ct. into believing Ds' erroneous assertion involving P's employment of P's attys. and alleged scheme to defraud Ds. 10 pp.

CONTRACTS

Swiss Bank Corp. v. Dresser Industries, Inc., No. 97-2431 (4/1/98). Appeal, N.D. Ill., E. Div. Aff'd.

Ps, seeking to enforce rights on contract to purchase stock by certain date, failed to make timely exercise of right where: deadline for exercise fell on legal holiday; and Ps waited until next business day to exercise rights. Fact deadline fell on legal holiday did not extend time for performance to next business day in absence of contract provision calling for such contingency. 7 pp.

DAMAGES

Collins v. Kibort, No. 97-2332 (5/1/98). Appeal, S.D. Ill., E. St. Louis Div. Aff'd in part, vac'd in part and rem'd.

In action alleging race discrimination under Title VII, 42 USC section 2000e-2, Dist. Ct. improperly awarded P back pay in add'n to jury's $96,034.80 award for compensatory damages. Where jury instruction included back pay as issue, ct. could not separately award back pay without speculating on jury's basis for awarding damages. 11 pp.

Creative Demos, Inc. v. Wal-Mart Stores, Inc., Nos. 97-1356 & 97-1556, Cons. (4/8/98). Appeal, S.D. Ind., Indianapolis Div. Vac'd and rem'd.

1. Jury improperly award P $6.5 million in punitive damages on quasi-contract theory that D's rep lied to P in order to obtain documents created by P. Although documents property of P, punitive damages inappropriate where rep made error in judgment based upon mistaken view of D's contractual rights.

2. In action seeking recovery on unjust enrichment theory arising out of D's improper obtaining of schedule of food demonstration in D's stores generated by P, P entitled to new trial on damages measured only by amount of daily profit D obtained through efforts by P times length of time substitute vendor would have taken to arrange demonstration itself. P not entitled to lost profits for entire period from date of P's early termination to date P expected contract to end. 8 pp.

Morley-Murphy Co. v. Zenith Electronics Corp., No. 96-3527 (4/10/98). Appeal, W.D. Wisc. Rev'd and rem'd.

1. P-distributor of D's products in Wisc. and other states may not seek under Wisc. Fair Dealership Law (WFDL) lost profits assoc'd with sales of D's products in other states; such relief would constitute extraterritorial application of WDFL in contravention of commerce clause.

2. P may not seek both out-of-pocket expenses and lost profits resulting from nonrenewal of dealership agreement by D. Under Wisc. law, costs "avoided" as result of breach to be subtracted from revenue when calculating lost profits in order to prevent double recovery. 13 pp.

DEFAMATION

Cook v. Winfrey, No. 97-3403 (4/8/98). Appeal, N.D. Ill., E. Div. Aff'd in part, rev'd and rem'd in part.

Dist. Ct. erred in dism'g both defamation per se and per quod claims under Fed.R.Civ.P. 12(b)(6) as to D's statement that she would "fight [P's] suit until I am bankrupt before I give even a penny to this liar" since ct. went beyond scope of pleading to determine whether statement injured P's trade or business or expressed only opinion of D. 13 pp.

Strasburger v. Bd. of Educ., Hardin Co. Comm. Unity School Dist. No. 1, No. 97-1302 (5/4/98). Appeal, S.D. Ill. Aff'd.

Dist. Ct. properly granted D-school bd.'s motion for summary judgment in section 1983 action alleging D's termination of P-teacher pursuant to reduction in force violated P's liberty interest in continuing in employment without being defamed. P, who had prior criminal history, failed to show comments about criminal past either untrue, made by school official, or more than mere expression of opinion. (Dissent filed.) 13 pp.

DISCOVERY

Corley v. Rosewood Care Center, Inc. of Peoria, Nos. 96-2464, 96-3758, 96-1815 & 97-2052, Cons. (4/29/98). Appeal, C.D. Ill. Rev'd in part, vac'd in part and rem'd.

In RICO action alleging Ds made false promises to induce individuals to move into Ds' nursing home, Dist. Ct. improperly entered protective order preventing Ps from taking sworn statements via ct. reporter from other residents in Ds' nursing home. Parties as part of discovery process may take sworn statements from individuals having knowledge of facts without need to comply with notice provision of Fed.R. Civ.P. 30(b). 22 pp.

DISSOLUTION OF MARRIAGE

Kolodziej v. Reines, No. 97-3312 (4/17/98). Appeal, N.D. Ill., E. Div. Aff'd.

Marital settlement which granted P interest in ex-spouse's pension fund dischargeable in bankr.; record showed "indebtedness" resulted from division of marital estate rather than maintenance award to P. Award of interest in pension fund did not end with P's remarriage; financial status of P and D relatively even and children of parties no longer needed support. 4 pp.

EMOTIONAL DISTRESS

Cook v. Winfrey, No. 97-3403 (4/8/98). Appeal, N.D. Ill., E. Div. Aff'd in part, rev'd and rem'd in part.

Dist. Ct. properly dism'd P's intentional infliction of emotional distress claim based upon series of allegedly defamatory statements made by D. Mere defamation insufficient to constitute "extreme and outrageous" conduct. 13 pp.

Strasburger v. Bd. of Educ., Hardin Co. Comm. Unit School Dist. No. 1, No. 97-1302 (5/4/98). Appeal, S.D. Ill. Aff'd.

In action challenging P-teacher's termination pursuant to reduction in force, Dist. Ct. properly granted D-school bd.'s motion for summary judgment as to claim of intentional infliction of emotional distress. While P claimed termination ruined reputation, conduct not so outrageous to support said claim. (Dissent filed.) 13 pp.

EMPLOYMENT DISCRIMINATION

Collins v. Kibort, No. 97-2332 (5/1/98). Appeal, S.D. Ill., E. St. Louis Div. Aff'd in part, vac'd in part and rem'd.

Record contained sufficient evidence for jury to find D discriminated against P-employee on basis of race when it reduced his custodial job to part-time status. While D's supervisor could have thought P better suited for part-time job duties, supervisor also believed P's race would cause difficulty in predominately white community where full-time custodial job located. 11 pp.

Cowan v. Prudential Ins. Co. of Am., No. 97-1871 (4/10/98). Appeal, S.D. Ill. Aff'd.

1. P failed to establish her termination for poor sales production product of sex discrimination. D used nationwide plan applied to both males and females to terminate low producers; alleged sex biased statements by 2 supervisors irrelevant since neither supervisor made decision to terminate P.

2. Dist. Ct. properly determined P failed to establish prima facie case of retaliation where, after P complained of sexual harassment, D assigned her to different agency, canceled her professional registration, inaccurately kept her payroll records, and treated her in "cold" fashion. Adverse acts had innocent explanations and P failed to link them to protected activities. 11 pp.

Ibarra v. Martin, No. 96-3777 (4/23/98). Appeal, N.D. Ill., E. Div. Aff'd.

P failed to establish violation of equal protection in section 1983 action where P alleged D enforced policy of disciplining Hispanics more harshly than non-Hispanics. Statistics showing D terminated Hispanics at rate greater than percentage in work force not dispositive since number of terminated Hispanics (i.e., 5) too small of pool to support inference of discrimination. 9 pp.

Johnson v. Bodine Electric Co., No. 96-2719 (4/7/98). Appeal, C.D. Ill. Rev'd and rem'd.

Dist. Ct. erred in dism'g for lack of jurisdiction Title VII action alleging D laid off P-union worker on account of race because P failed to exhaust grievance procedures mandated under collective bargaining agreement. Under Pryner, 109 F.3d 354, union cannot consent in collective bargaining agreement on behalf of union worker to arbitrate worker's Title VII discrimination action even though worker can prosecute own grievance. Worker, though, may arbitrate Title VII action if he personally consents to it. 6 pp.

McNutt v. Bd. of Trustees of Univ. of Ill., No. 97-2756 (4/2/98). Appeal, C.D. Ill. Vac'd.

Dist. Ct. erred in awarding P injunctive relief, atty. fees and costs in Title VII retaliation claim where jury found under "mixed motive" theory that retaliation was one motive of D-employer's adverse actions but that D also would have done adverse acts without retaliation motive. Price Waterhouse, 490 U.S. 228, bars mixed motive retaliation relief; Civil Rights Act of 1991, which permits awards of injunctive relief to certain types of discrimination claims under mixed motive theory, inapplicable to retaliation claims. 5 pp.

Richter v. Hook-SupeRx, Inc., No. 97-1909 (4/27/98). Appeal, S.D. Ind., Indianapolis Div. Aff'd.

1. P-52-yr.-old employee terminated after his company acquired by D, failed to establish prima facie case of age discrimination when D replaced P with 45-yr.-old individual. Under Hartley, 124 F.3d 887, 7-yr. difference between P and his replacement too slight to create inference of age discrimination in absence of other evidence indicating employer considered P's age significant.

2. P failed to show D's rationale for termination of P, i.e., P not "strong performer" or "hands-on manager," pretext for age discrimination. While D's rationale contained subjective decision-making process, P failed to show D did not honestly believe truth of tendered rationale. P further failed to show age stereotyping that could occur with subjective rationale actually occurred here. 10 pp.

EQUAL PAY ACT

Stopka v. Alliance of American Insurers, No. 97-1974 (4/1/98). Appeal, N.D. Ill., E. Div. Aff'd.

Dist. Ct. properly granted D-employer's motion for summary judgment in P's 29 USC section 201 et seq. action alleging D paid males more money than P. Although males had similar titles and supervisory tasks, males not similarly situated to P. Unlike males, P did not have primary responsibility for key aspects of D's core business. 10 pp.

ERISA

Cook v. Niedert, Nos. 97-1584, 97-1666 & 97-1667, Cons. (4/24/98). Appeal, N.D. Ill., E. Div. Aff'd.

Dist. Ct. did not err in awarding named P in ERISA class action establishing $13 million common fund for benefit of class members $25,000 "incentive award" where record showed said incentive necessary to induce P to participate in suit. Record further showed named P devoted "hundreds of hours" with attys. on case and possessed reasonable fear of retaliation in workplace as result of participation. 12 pp.

Cozzie v. Metropolitan Life Ins. Co., No. 97-1983 (4/9/98). Appeal, N.D. Ill., E. Div. Aff'd.

Under facts of this case, D-ins. co.'s decision to deny accidental death benefits where insured died in car accident while intoxicated did not conflict with policy's definition of "accident." Insured's death result of driving while intoxicated; thus although unintentional, not "accident" because result reasonably foreseeable. 9 pp.

Dugan v. Smerwick Sewerage Co., Nos. 96-3618 & 96-3724, Cons. (4/16/98). Appeal, N.D. Ill., E. Div. Aff'd.

In ERISA action seeking contributions owed to union health and pension funds under "owner-operator" provision of collective bargaining agreement, Dist. Ct. properly concluded former owner of company, who sold business to wife, not "relative" of present owner for purposes of requiring contributions. Collective bargaining agreement did not include "spouse" in definition of "relative." Parol evidence may not be used to demonstrate "extrinsic ambiguity" where such evidence consisted of subjective testimony from drafter of agreement. 13 pp.

EVIDENCE

Stopka v. Alliance of American Insurers, No. 97-1974 (4/1/98). Appeal, N.D. Ill., E. Div. Aff'd.

1. In action under Equal Pay Act, Dist. Ct. did not err in excluding evidence under Fed.R.Evid. 403 that 2 other women, like P, received lower salaries than comparable male co-workers. Although decision-makers same with respect to P and 2 women, P failed to show salaries of 2 women product of gender discrimination. Difference in salary as to 1 woman concerned legitimate market forces benefiting male co-worker while difference in salary as to other woman concerned male comparable's acceptance of significantly different job.

2. Statement by D's general counsel that inequity in salaries of men and women justified since "women don't work as hard as men" properly excluded from evidence. P failed to show that general counsel was decision-maker or that statements related to P's adverse employment decision. 10 pp.

FAIR DEALERSHIP LAW

Morley-Murphy Co. v. Zenith Electronics Corp., No. 96-3527 (4/10/98). Appeal, W.D. Wisc. Rev'd and rem'd.

Dist. Ct. improperly granted partial summary judgment in favor of P-dealership in action under Wisc. Fair Dealership Law (WFDL) for damages resulting from D-mfr.'s decision not to renew distributorship agreement with P due to change in D's system from independent distributors to direct marketing. Under WFDL, termination of dealership agreement permissible where mfr. can show: objectively ascertainable need for change; proportionate response to need; and nondiscriminatory action. 13 pp.

FAMILY AND MEDICAL LEAVE ACT

Stoops v. One Call Communications, Inc., No. 97-1895 (3/31/98). Appeal, S.D. Ind., Indianapolis Div. Aff'd.

P, suffering from chronic fatigue syndrome and terminated for excessive absenteeism, ineligible for protection under 29 USC section 2601 et seq.; D-employer relied on certificate from P's physician indicating that P, though suffering from disease, not incapacitated. 7 pp.

FOIA

Solar Sources, Inc. v. U.S., No. 97-2386 (4/28/98). Appeal, S.D. Ind., Indianapolis Div. Aff'd.

1. Dist. Ct. properly den'd Ps' FOIA request for certain records held by govt. regarding govt.'s criminal antitrust investigation against certain entities. While all criminal charge resolved against entities named in FOIA request, govt. could still use exemption under 5 USC section 552(b)(7)(A) since ct.'s in camera inspection confirmed govt.'s claim that disclosure could compromise govt.'s continuing investigation against other entities.

2. Although ct. found 1% out of 3,000 pages of sample documents not privileged under FOIA request, ct. properly found nonprivileged documents "nonsegregable" under 5 USC section 552(b) so as to require govt. to go through segregation process in order to comply with FOIA request. Govt. agencies need not organize records for purpose of FOIA compliance; estimated time of 8 work yrs. to perform segregation process in compliance with FOIA request too burdensome.

3. Govt. not required to provide "Vaughn" index as to 3,000 page sample documents prior to assertion of section 7A exemption from disclosure under FOIA. Under Wright, 822 F.2d 642, Vaughn index not required in section 7A exemption cases claiming interference with govt. enforcement proceedings; document specific index would disclose much of information exemption intended to protect. 10 pp.

HEARSAY

Collins v. Kibort, No. 97-2332 (5/1/98). Appeal, S.D. Ill., E . St. Louis Div. Aff'd in part, vac'd in part and rem'd.

1. Dist. Ct. erred in admitting med. bills into record. While P's hospital maintained bills in course of its regularly conducted activity, no one from hospital testified with respect to business practice of hospital; P could not testify as to reliability of such records to qualify them as business records under Fed.R.Evid. 803(6).

2. Dist. Ct. erred in admitting under Fed. R.Evid. 803(5) P's diary of recorded observations of what happened in workplace. P did not testify he could not recall events recorded in diary; thus P could not establish foundation for its admission. Diary could not be received as exhibit unless offered by adverse party. 11 pp.

IMMUNITY

Goshtasby v. Bd. of Trustees of Univ. of Ill., No. 97-2297A (4/13/98). Appeal, N.D. Ill., E. Div. Aff'd.

Dist. Ct. properly den'd D-employer's motion to dism. P's ADEA action alleging wrongful termination based upon age. Congress abrogated state's 11th Amendment immunity when it amended ADEA to include states in definition of employer; Act's amendment within enforcement power of equal protection clause of 14th Amendment. 14 pp.

Lickiss v. Drexler, No. 97-2818 (4/21/98). Appeal, C.D. Ill. Aff'd.

P-civil service employee, terminated then later reinstated and suspended after investigating and reporting improper conduct of fellow police officer to state's atty., presented sufficient evidence to deny Ds' motion for summary judgment as to P's 1st Amendment claim alleging retaliatory discharge. Ds failed to provide P with presuspension hearing, notice of charges or opportunity to respond; P neither confidential employee or policymaker. Thus, P could not be disciplined for bringing matter of public concern to attention of state's atty.; Ds claim of qualified immunity properly den'd. 4 pp.

INSURANCE

Huntzinger v. Hastings Mut. Ins. Co., No. 96-4163 (4/28/98). Appeal, S.D. Ind., Indianapolis Div. Aff'd.

1. Dist. Ct. properly granted D-ins. co.'s motion for summary judgment in action to determine whether environmental costs to clean up property covered by policy. "Owned property" provision excluded coverage where "property damage" concerned only economic loss rather than tort liability, and where no "accidental occurrence" of property damage happened due to P-insureds' dumping of materials under procedures which reasonable person would not believe would be adequate to prevent escape of pollutants.

2. Under "owned property" exclusion of ins. policy, coverage for pollution damage to property could arise where injury-causing "occurrence" post-dates sale of property by insured to 3rd-party. No coverage here since, under "multiple trigger" theory, pollution to property occurred during P-insureds' ownership and Ps knew of pollution prior to sale. 27 pp.

W. Suburban Bank of Darien v. Badger Mut. Ins. Co., No. 96-3682 (4/9/98). Appeal, N.D. Ill., E. Div. Aff'd.

P-bank, which held mortgage and assignment of beneficial interest in land trust, could not recover under provisions of fire ins. policy where property destroyed by fire. P, by selling property and releasing mortgage no longer "mortgagee" under terms of policy; and assignment of beneficial interest in land trust only an interest in "personal property" which was not covered under terms of policy. 10 pp.

INTEREST

In re Matter of P.A. Bergner & Co. v. Bank One, Nos. 96-3879 & 96-3937, Cons. (4/9/98).

Appeal, E.D. Wisc. Aff'd in part, rev'd in part and rem'd.

Dist. Ct. erred in failing to award debtor prejudgment interest after prevailing in adverse proceedings seeking return of preference payments under Bankr. Code; prejudgment interest should be awarded unless sound reason exists not to do so. Ct. abused discretion in failing to award prejudgment interest since such award would benefit successor owners (prior unsecured creditors) of debtor. 15 pp.

INTERFERENCE WITH ECONOMIC ADVANTAGE

Cook v. Winfrey, No. 97-3403 (4/8/98). Appeal, N.D. Ill., E. Div. Aff'd in part, rev'd and rem'd in part.

Dist. Ct. erred in dism'g under Fed.R. Civ.P. 12(b)(6) P's tortious interference with economic advantage claim for failure to allege business expectancy with specific 3rd party. P's allegation that D interfered with P's dealings with "media" sufficient under fed. notice pleading requirement; P under no legal obligation to identify 3rd-party in complaint. 13 pp.

JURISDICTION

Buck v. U.S. Digital Communications, Inc., No. 97-4086 (4/6/98). Appeal, N.D. Ill., E. Div. Dism'd w/dir.

App. Ct. lacked jurisdiction over appeal of order in favor of P-stockholder in case seeking declaratory judgment that P, pursuant to SEC R. 144, could sell stock without registration under fed. securities law. Although Dist. Ct. found in favor of P, order failed to set forth terms of declaratory judgment to permit review. App. Ct. further found review of grant of declaratory judgment could not be resolved without consideration of companion case where identical issues remained. 5 pp.

Citizen Advocacy Center v. DuPage Airport Authority, No. 97-2455 (4/8/98). Appeal, N.D. Ill., E. Div. Vac'd and rem'd.

1. Dist. Ct. lacked jurisdiction on mootness grounds as to Ps' claim that Ds' extension of runway at regional airport violated 49 USC section 47106(c)(1)(A), requiring sponsor of airport to certify public received opportunity to express views at public hearing prior to receipt of fed. funds. While Ds applied for fed. funds, application not granted at time suit filed and D paid for extension with own funds.

2. Dist. Ct. lacked jurisdiction over Ps' claim under 42 USC section 4332(C) asserting Ds failed to generate environmental report prior to extending airport runway. Although local units of govt. could be potential Ds under section 4332, Act inapplicable where fed. agency made no report on project funded only through local monies. 3 pp.

Cook v. Winfrey, No. 97-3403 (4/8/98). Appeal, N.D. Ill., E. Div. Aff'd in part, rev'd and rem'd in part.

Dist. Ct. possessed subject matter jurisdiction under diversity statute, 28 USC section 1332(a), even though amount in controversy alleged only "excess of $50,000" where applicable amount was $75,000 at time of amended complaint. Other allegations of complaint indicated damages in amount of $20 million; original complaint filed when $50,000 jurisdictional minimum still applicable. 13 pp.

Ind. Gas Co. v. Home Ins. Co., Nos. 97-1328 & 97-1381, Cons. (4/6/98). Appeal, N.D. Ind., Ft. Wayne Div. Vac'd and rem'd w/dir.

Dist. Ct. lacked diversity jurisdiction in suit against underwriting ins. syndicate. Syndicate, which was not a corp., had to be treated as partnership requiring ct. to look to citizenship of all members of syndicate, one of which shared same citizenship as P. (Dissent filed.) 9 pp.

JURY INSTRUCTION

Berry v. Brown, No. 97-2439 (4/9/98). Appeal, N.D. Ind., Hammond Div. Aff'd.

Dist. Ct. did not err in failing to give P's proposed jury instruction in section 1983 claim that D-police officers stopped African-American P and "suggested" he leave county because of his race. Record showed suggestion facially neutral and uttered without discriminatory intent. Instruction given to jury which mirrored P's testimony that Ds "ordered" him out of county gave P fair shot at winning case. 5 pp.

LABOR LAW

Filippo v. N. Ind. Public Service Corp., No. 97-1541 (4/10/98). Appeal, N.D. Ind., Hammond Div. Aff'd.

1. Magistrate judge properly granted Ds' motion for summary judgment in LMRA

section 301 claim that union breached duty of fair representation to P in failing to appropriately process series of grievances. Record showed no arbitrary action on part of union where certain grievances resulted in no adverse action taken against P; P failed to show treatment by union differed from treatment given to co-workers.

2. Magistrate judge properly found Ind. tort of intentional infliction of emotional distress displaced by LMRA since alleged behavior on part of union with respect to processing grievances would necessarily require interpretation of collective bargaining agreement. 8 pp.

Strasburger v. Bd. of Educ., Hardin Co. Comm. Unit School Dist. No. 1, No. 97-1302 (5/4/98). Appeal, S.D. Ill. Aff'd.

P-teacher failed under LRMA section 301 to establish breach of duty of fair representation claim against D-union stemming from union's representation of P in grievance against school bd.; political subdivision such as school bd. not "employer" under LMRA, hence P not "employee" under Act. Thus, LMRA provides no fed. basis for P's claim. (Dissent filed.) 13 pp.

LIMITATIONS

U.S. v. Torres, Nos. 96-2477 & 96-2671, Cons. (4/17/98). Appeal, N.D. Ill., E. Div. Aff'd.

Dist. Ct. had jurisdiction to consider P-govt.'s foreclosure action on defaulted SBA loan even though action filed after Ill. statute of limitations period for both written and oral contracts expired; state statute of limitations inapplicable to actions filed by fed. govt. 10 pp.

MORTGAGE

U.S. v. Torres, Nos. 96-2477 & 96-2671, Cons. (4/17/98). Appeal, N.D. Ill., E. Div. Aff'd.

Dist. Ct. properly granted govt.'s motion for summary judgment in action seeking foreclosure of SBA loan. Although Ds asserted lawyers representing SBA committed fraud in hiding from ct. fact SBA had knowledge at time of loan that subject property belonged to 3rd party, record showed Ds' claim unfounded given Ds' affidavit of ownership in subject property at time of loan. 10 pp.

PROCEDURE

Brandon v. Chicago Bd. of Educ., No. 97-1578 (4/23/98). Appeal, N.D. Ill., E. Div. Aff'd.

Dist. Ct. properly den'd P's motion under Fed.R.Civ.P. 60(b)(1) to vac. prior order dism'g handicap discrimination action for failure to prosecute even though counsel for P, through Dist. Ct. clerical error, never received notice of any hearings set in case. R. 60(b)(1) motion came 1 yr. and 3 days after dism'l order; motion to vac. under R. 60(b)(1) must, as jurisdictional matter, be made within 1 yr. of date of judgment. 4 pp.

PRODUCT LIABILITY

DePaepe v. General Motors Corp., No. 96-3886 (4/9/98). Appeal, N.D. Ill., E. Div. Vac'd and rem'd.

1. Dist. Ct. erred in failing to grant D-mfr.'s motion in limine to exclude P from arguing that D's sun visor (that P claimed caused injury) violated fed. regulation concerning amount of required energy-absorbing material in sun visor. Subject visor complied with regulation, thus ct. prevented D from responding to P's contrary suggestion.

2. Ct. erred in permitting P's expert to state cost factors led to reduced amount of padding in sun visor. Such testimony tantamount to speculation; record showed expert lacked scientific basis for opinion as to motive of D's designers. 6 pp.

PROMISSORY ESTOPPEL

Creative Demos, Inc. v. Wal-Mart Stores, Inc., Nos. 97-1356 & 97-1556, Cons. (4/8/98). Appeal, S.D. Ind., Indianapolis Div. Vac'd and rem'd.

Dist. Ct. properly vac'd $681,126 jury award on promissory estoppel claim representing lost profits stemming from early termination of food demonstrations in D's stores. Promissory estoppel does not support lost profits remedy and permits only amount necessary to restore P to position had promise not been made. 8 pp.

PREGNANCY DISCRIMINATION

Harris v. Union Pacific RR, No. 97-1501 (4/9/98). Appeal, N.D. Ill., E. Div. Vac'd and rem'd.

Dist. Ct. improperly dism'd Ps' sex discrimination claims under Pregnancy Discrimination Act, ERISA, and Family Med. Leave Act stemming from D's den'l of severance benefits. Although ICC gave prior approval of merger of D-RR causing termination of P-employees, such approval did not foreclose Ps' suit since severance plan generated without input from ICC. 5 pp.

Kennedy v Schoenberg, Fisher & Newman, Ltd., No. 97-2347 (4/3/98). Appeal, N.D. Ill., E. Div. Aff'd.

1. P-employee, terminated following disclosure of pregnancy to supervisor, failed to present sufficient direct evidence under 42 USC section 2000e(k) to survive D-employer's motion for summary judgment. While supervisor made certain statements regarding working mothers, such statements not direct evidence of discrimination where made 5 mos. prior to adverse decision and not causally related to decision-making process.

2. P failed to establish pregnancy discrimination via McDonnell Douglas framework; although P showed adequate job performance, P failed to show nonpregnant workers received more favorable treatment. Fact male subsequently hired in D's litigation dept. or that nonpregnant female retained in D's corp. law dept. irrelevant since P failed to show hiring of male occurred in corp. law dept. where P had worked or that nonpregnant female performed same duties as P.

3. Dist. Ct. did not abuse discretion in dism'g all pendent state law claims after granting D's motion for summary judgment as to pregnancy discrimination claims. While both parties claimed state law claims should remain in Fed. Ct. due to parties' undertaking of discovery and ct.'s familiarity of case, these factors insufficient to second-guess decision of ct. to dism. state laws claims without prejudice. 15 pp.

PRISONERS

Lucien v. DeTella, No. 96-2887 (4/13/98). Appeal, N.D. Ill., E. Div. Aff'd.

Dist. Ct. properly declined to file prisoner's section 1983 claim against prison where prisoner refused to pay partial filing fee under 28 USC section 1915(b). Prisoner may not recover partial app. fee stemming from instant appeal since: Dist. Ct.'s disposition correct; and requirement of partial payment under section 1915(b) constitutional. 5 pp.

Peckham v. Wisc. Dept. of Corrections, No. 96-1894 (4/1/98). Appeal, E.D. Wisc. Aff'd.

Dist. Ct. properly granted Ds' motion for summary judgment in action alleging Ds' 35 strip searches of P-prisoner unconstitutional. Although prisoners have some 4th Amendment protections, instant strip searches, performed pursuant to dept. policy, not unreasonable nor for purposes of harassment. 8 pp.

RICO

Corley v. Rosewood Care Center, Inc. of Peoria, Nos. 96-2464, 96-3758, 96-1815 & 97-2052, Cons. (4/29/98). Appeal, C.D. Ill. Rev'd in part, vac'd in part and rem'd.

1. Dist. Ct. improperly granted Ds' motion for summary judgment in RICO action alleging Ds used "bait and switch" tactics in inducing residents to move into nursing home. Although 5 incidents of broken promises cited by Ps would not satisfy "continuity" requirement for RICO, ct. improperly refused to consider allegations that other residents subject to same pattern of conduct.

2. Ct. improperly found certain predicate acts (including alleged mail fraud toward other residents of nursing home), after alleged "bait and switch" scheme had come to fruition vis a vis Ps, could not be considered part of pattern of racketeering activity; full scope of scheme must be considered in determining whether subsequent act in furtherance of scheme. Ds' mailing at issue could be in furtherance of scheme where letter den'd existence of fraudulent activity and served to deflect attention away from Ds' operations. 22 pp.

RULE 11 SANCTIONS

Corley v. Rosewood Care Center, Inc. of Peoria, Nos. 96-2464, 96-3758, 96-1815 & 97-2052, Cons. (4/29/98). Appeal, C.D. Ill. Rev'd in part, vac'd in part and rem'd.

Dist. Ct.'s entry of $200 sanction relating to Ps' motion seeking clarification of earlier order requiring Ps to post bond improper since sanction order failed to comply with Fed.R.Civ.P. 11(b) requiring separate motion for sanctions and opportunity for Ps to file response. Sanction order also not within inherent authority of ct. since ct. did not invoke such authority when entering order. 22 pp.

RULE 26 SANCTIONS

Dugan v. Smerwick Sewerage Co., Nos. 96-3618 & 96-3724, Cons. (4/16/98). Appeal, N.D. Ill., E. Div. Aff'd.

Dist. Ct. properly den'd under Fed.R. Civ.P. 26(g) D's request for discovery sanctions stemming from D's attempts to clarify via add'l discovery requests P's response that absence of term in collective bargaining agreement "typographical error." While no draft documents supported P's typographical error claim, den'l of sanctions proper where P claimed failure to include subject term general oversight. 13 pp.

SECURITIES

Mueller v. Sullivan, No. 97-1671 (4/23/98). Appeal, W.D. Wisc. Aff'd.

Dist. Ct. properly den'd petitioners' pet. for habeas relief asserting petitioners' convictions for securities fraud under Wisc. state law violated due process clause since it permitted conviction without proof that petitioners aware that failure to disclose financial status of company prior to sale of security violated law. Constitution does not require proof scienter in every criminal case; state need prove only petitioners aware of what investors being told and that withheld information objectively material. 5 pp.

SEXUAL HARASSMENT

Cowan v. Prudential Ins. Co. of Am., No. 97-1871 (4/10/98). Appeal, S.D. Ill. Aff'd.

P failed to establish prima facie case of sexual harassment where D subjected to: presence of provocatively dressed cheerleader in corp. football manual; circulation of cartoon depicting "safe sex"; comment by mgr. that he could do like P and "abstain from sex"; and males participating in outside activities, including strip clubs, without inviting females in office. Work environment, although unpleasant, not sufficiently severe to create objectively hostile work environment. 11 pp.

TAXATION

Bankers Life and Cas. Co. v. U.S., No. 96-2260 (4/17/98). Appeal, N.D. Ill., E. Div. Aff'd.

Dist. Ct. properly rejected P-ins. co. taxpayer's challenge to Treas. Reg. section 1.815-2(b)(3) which required P making certain real estate distributions to shareholder to pay tax based upon fair market value of real estate rather than aggregate adjusted tax basis. Under Chevron, 467 U.S. 837, subject reg. reasonable given origin and purpose of 3-phase taxation applicable to ins. cos. 20 pp.

Wallace v. U.S., No. 97-2650 (4/6/98). Appeal, S.D. Ind., Indianapolis Div. Aff'd.

Retired pro football player who received payments from team pursuant to terms of collective bargaining agreement after player failed team physical could not exclude such payments from income under 26 USC section 104(a) as amount received under Workers' Comp. Act. Fact player received subsequent workers' comp. award that credited payments received under collective bargaining agreement against award insufficient to transform payment into excludable workers' comp. award. 5 pp.

VOTING RIGHTS ACT

Barnett v. City of Chicago, Nos. 97-2792 & 97-2793, Cons. (4/1/98). Appeal, N.D. Ill., E. Div. Aff'd in part, vac'd in part and rem'd w/dir.

Dist. Ct. erred in upholding, under 42 USC section 1973(b), Ds' proposed aldermanic ward map with respect to number of African-American controlled wards. On remand, ct. required to consider citizen voting age population, as opposed to total population, in determining whether alternative map giving African-Americans one more ward permissible under Act. 9 pp.

WARRANTY

Gardynski-Leschuck v. Ford Motor Co., No. 97-3483 (4/2/98). Appeal, N.D. Ill., E. Div. Vac'd and rem'd w/dir.

P, suing under Magnuson-Moss Warranty Act, 15 USC section 2301 et seq., for defective car with purchase price of $20,500, failed to establish $50,000 subject matter jurisdiction "amount in controversy" requirement under Act. P can receive, at most, only purchase price of car in damages, and may not use atty. fees generated after filing of suit to satisfy jurisdictional minimum. 6 pp.

CRIMINAL CASES

ASSISTANCE OF COUNSEL

Pitsonbarger v. Gramley, No. 95-3912A (4/9/98). On remand from U.S. Sup. Ct. Aff'd.

In habeas pet. petitioner procedurally defaulted claim that trial counsel ineffective for failing to inform psychiatrist that petitioner on psychotropic drug at time of trial. Petitioner failed to raise claim on direct appeal in State Ct. system and failed to show under Sawyer, 505 U.S. 333, that timely disclosure would have resulted in finding petitioner unfit for trial. 12 pp.

U.S. v. Howard, No. 97-2328 (4/9/98). Appeal, E.D. Wisc. Dism'd.

App. Ct. determined D's app. counsel could withdraw pursuant to Anders, 386 U.S. 738, even though Anders brief contained discussion on issue (i.e., alleged suggestive photo array) which could not be barred on appeal as matter of law. Photo array issue frivolous under instant record where D's expert equivocal as to whether array suggestive; record overwhelmingly demonstrated witnesses had good opportunity to view D. 2 pp.

U.S. v. Yack, No. 97-3491 (4/9/98). Appeal, N.D. Ind., Hammond Div. Aff'd.

D's trial counsel not ineffective for agreeing with prosecutor, in bank embezzlement trial, to exclude polygraph results showing deception on issues of theft from 2 of D's co-workers. Such results not helpful to D since 1 of co-workers proved to be relatively unimportant witness for govt., while testimony of other co-worker helpful to D's defense. If results admitted, jury might have learned D initially refused polygraph, thereby raising issues not helpful to defense. 6 pp.

White v. Godinez, No. 96-3187 (4/28/98). Appeal, C.D. Ill., Urbana Div. Vac'd and rem'd.

Remand required for Dist. Ct. to reconsider habeas claim that trial counsel ineffective in spending only 20 mins. with petitioner prior to murder trial. Failure to consult issue in ineffective assistance of counsel claim required ct. to inquire into exactly what preparation trial counsel conducted and for how long prior to dism'g claim. 12 pp.

BRIBERY

U.S. v. Grossi, No. 97-2723 (5/4/98). Appeal, N.D. Ill., E. Div. Aff'd.

1. Record contained sufficient evidence to support D's bench trial conviction on charges that D received bribes from 3rd parties to process unpaid bills from general assistance funds even though such bills did not qualify for reimbursement. Although chief witnesses against D testified only on grant of immunity and were similarly guilty of cheating residents out of welfare benefits, Dist. Ct. could still believe their testimonies which were corroborated by other circumstances surrounding payments to D.

2. While D convicted under 18 USC section 666(b) of seeking bribe in scheme to award general assistance funds under his jurisdiction to 3rd parties, fact source of funds came from local, as opposed to fed. monies, did not invalidate conviction since township in charge of funds itself received more than $10,000 statutory minimum under section 666(b) in fed. funds for other programs. 4 pp.

CONSPIRACY

U.S. v. Granados, No. 97-1900 (4/24/98). Appeal, N.D. Ill., E. Div. Aff'd.

Record contained sufficient evidence to support jury's verdict convicting D of conspiracy and attempt to commit extortion under 18 USC section 1951(a) where D and 3rd party told victim he would stop damaging newspaper articles in exchange for payment of money. While D may not have intended to create fear by initially publishing articles, govt. need not prove D created fear that was subsequently exploited by D. 9 pp.

EVIDENCE

U.S. v. Freland, No. 97-1710 (4/22/98). Appeal, W.D. Wisc. Aff'd.

Record contained sufficient evidence to support jury's guilty verdict on charges of attempt armed robbery and use of firearm by felon in attempted bank robbery even though bulk of evidence placing D at scene of crime came from testimony of convicted felons. Jury free to credit testimony of ex-felons, and other testimony linked D to crimes. 6 pp.

U.S. v. Minneman, Nos. 97-2614 & 97-2676, Cons. (4/17/98). Appeal, C.D. Ill. Aff'd.

In prosecution charging D with conspiracy to impede IRS and filing false tax return, Dist. Ct. did not err in prohibiting D from introducing evidence of legitimate business deductions that D could have taken on tax return in absence of showing D's prior knowledge of deductions before filing of false tax return. Amount of taxes owed irrelevant to prosecution for tax fraud; D never proffered evidence of deductions. 14 pp.

EXPERT WITNESS

U.S. v. Silva, No. 97-3003 (4/9/98). Appeal, N.D. Ill., E. Div. Aff'd.

Authorized expert under Criminal Justice Act, 18 USC section 3006A, may not seek payment directly in State Ct. from appointed atty. for services rendered on behalf of D unless authorized by Dist. Ct.; den'l of appointed counsel's pet. for rule to show cause against expert, however, proper since expert had not yet violated specific order of ct. 8 pp.

FIREARMS

U.S. v. Jester, No. 97-2597 (4/6/98). Appeal, S.D. Ind., Evansville Div. Aff'd.

Offense of possession of firearm by convicted felon, 18 USC section 922(g)(1), does not violate either 8th Amendment by criminalizing D's status or 5th Amendment equal protection clause by exempting certain classes of felons; section 922(g)(1) does not punish person solely for status as convicted felon since statute triggered only when felon does volitional act. Congress could rationally exempt prior nonviolent felony offenses from coverage under statute. 4 pp.

U.S. v. McKinney, No. 96-3699 (4/30/98). Appeal, S.D. Ill., E. St. Louis Div. Aff'd.

Record contained sufficient evidence to support conviction for felon in possession of firearm under 18 USC section 922(g) even though state did not prove D owned gun or in actual possession of gun at time of arrest. Record showed D in "constructive possession" of gun where: police heard gun fall to floor about 2 ft. from D; D made threat at time of arrest of shooting someone; and D admitted holding gun prior to police entry. 6 pp.

GUILTY PLEA

U.S. v. Gwiazdzinski, Nos. 97-1278 & 97-1290, Cons. (4/14/98). Appeal, N.D. Ill., E. Div. Aff'd in part, vac'd in part and rem'd.

D could not withdraw guilty plea on charges of money laundering where D alleged only that wife coerced him into pleading guilty through threat of withholding visitation of couple's child, and that plea product of drinking binge. Wife's threat not tantamount to overwhelming pressure and D's lawyers informed Dist. Ct. at Fed.R.Crim.P. 11 hearing that D had not been drinking. 9 pp.

U.S. v. Schilling, Nos. 96-4160 & 96-4161, Cons. (4/15/98). Appeal, N.D. Ind., Hammond Div. Aff'd.

Govt. did not breach terms of Ds' guilty plea to failing to report sale of 300,000 gal. of diesel fuel even though govt. introduced evidence at sentencing hearing as to D's scheme concerning failure to report 1,000,000 gal. of fuel which increased sentencing level. Terms of plea expressly gave govt. right to inform Dist. Ct. about actual number of unreported gal. of fuel; Ds admitted at Fed.R.Crim.P. 11 hearing accuracy of charge alleging their failure to report 1,000,000 gal. figure. 16 pp.

HABEAS CORPUS

Diaz v. Duckworth, No. 96-2630 (5/4/98). Appeal, N.D. Ind., S. Bend Div. Dism'd w/dir.

Prisoner's appeal of den'l of habeas claim stemming from loss of good-time credit for prison offense rendered moot where prisoner deported during pendency of appeal. 4 pp.

White v. Godinez, No. 96-3187 (4/28/98). Appeal, C.D. Ill., Urbana Div. Vac'd and rem'd.

Dist. Ct. erred in den'g habeas pet. based on failure of petitioner to raise certain issues in discretionary pet. for leave to appeal (PLA) to Ill. Sup. Ct.; under Boerckel, 135 F.3d 1194, failure to include claims in PLA does not constitute procedural default for raising claims in subsequent habeas petition. 12 pp.

HEARSAY

U.S. v. Linwood No. 97-1771, No. 97-1771 (4/20/98). Appeal, C.D. Ill., Peoria Div. Aff'd.

Dist. Ct. did not err in admitting hearsay statement of D's 12-yr.-old daughter who indicated D sold drugs and kept drug money in certain area of apartment. Subject statements admitted for nonhearsay purpose with limiting instructions to jury. D had opportunity to question daughter at trial, thereby eliminating any confrontation clause problem 11 pp.

JURY INSTRUCTION

Robertson v. Hanks, No. 96-1441 (3/30/98). Appeal, S.D. Ind., New Albany Div. Aff'd.

Dist. Ct. properly den'd petitioner's habeas pet. asserting Tr. Ct. erred in failing to instruct jury on lesser included offense of possession of cocaine. While ct. erred, such error did not require rev'l under Beck, 447 U.S. 625, since: petitioner's conviction noncapital offense; and error not prejudicial where petitioner failed to challenge sufficiency of "greater offense" of conviction for dealing cocaine. 9 pp.

U.S. v. Granados, No. 97-1900 (4/24/98). Appeal, N.D. Ill., E. Div. Aff'd.

Oral instruction by Dist. Ct. informing jury that D guilty of conspiracy to extort money regardless of whether each element of charge proven beyond reasonable doubt did not deprive D of fair trial. Neither party objected to oral instruction; jury received correct written instruction during deliberations; reference to error in transcript could have been nothing more than transcription error by ct. reporter. 9 pp.

U.S. v. Linwood, No. 97-1771 (4/20/98). Appeal, C.D. Ill., Peoria Div. Aff'd.

Dist. Ct. did not err in refusing D's proffered "mere presence" instruction on charge of possessing cocaine base with intent to distribute and employing minor to possess same with intent to distribute. Record showed D played active role in sale of drugs; jury already instructed in aiding and abetting count that mere association with others involved in criminal activity insufficient to establish guilt. 11 pp.

JURY SELECTION

Pitsonbarger v. Gramley, No. 95-3912A (4/9/98). On remand from U.S. Sup. Ct. Aff'd.

1. In habeas pet., Dist. Ct. properly den'd claim that Tr. Ct. improperly dism'd for cause 3 jurors in capital case who expressed only general aversion to imposing death penalty. Petitioner failed to overcome presumption of correction as to juror bias; juror in capital case may be excused for cause if death penalty views interfere with performance of juror duties.

2. Tr. Ct.'s refusal to remove 1 juror for cause who displayed predisposition in favor of death penalty did not deprive petitioner of fair trial since juror also indicated he would be impartial. Fact petitioner used peremptory challenge to remove juror irrelevant where petitioner failed to show selected jury not impartial. 12 pp.

MAIL FRAUD

U.S. v. Carlino, No. 96-1382 (5/1/98). Appeal, N.D. Ind., Hammond Div. Aff'd.

Record contained sufficient evidence to support jury's verdict finding D-union business mgr. guilty of mail fraud arising out of D's misuse of union funds. Record showed D used union funds to pay for political functions intended to assist D in reelection. Fact 3rd party signed union checks insufficient to cast doubt on verdict where record showed 3rd party manipulated by D. 7 pp.

PROCEDURE

U.S. v. Guy, No. 97-3645 (4/10/98). Appeal, S.D. Ind., Indianapolis Div. Dism'd.

Dist. Ct. erred in permitting D to file 2-day late notice of appeal based upon "excusable neglect" provisions of Fed.R. App.P. 4(b). D relied on Fed.R.Crim.P. 45(a) which allows exclusion of weekends and holidays, but R. 45(a) inapplicable since it governs only Dist. Ct. procedures. While Fed.R.App.P. 26(a) potentially permits late filing in App. Ct., it applies only where time for filing less than 7 days. Moreover, D's counsel failed to demonstrate "excusable neglect" since counsel experienced as fed. criminal app. litigator. 2 pp.

PROSECUTORIAL MISCONDUCT

Pisciotti v. Washington, No. 96-4087 (4/28/98). Appeal, N.D. Ill., E. Div. Aff'd.

In habeas pet., Dist. Ct. properly found petitioner procedurally defaulted claim that prosecutor improperly predicted petitioner's future dangerousness during closing arguments of murder trial. Trial counsel failed to contemporaneously object to prosecutor's comments; petitioner failed to show "cause" for such procedural default since claim that trial counsel ineffective for failing to object to comments without merit given overwhelming nature of petitioner's guilt. 9 pp.

U.S. v. Granados, No. 97-1900 (4/24/98). Appeal, N.D. Ill., E. Div. Aff'd.

Prosecutor's comments inviting juror to use own feelings about defamatory articles in considering conspiracy to extort money charges stemming from threat to continue publishing said articles, though improper, did not deprive D of fair trial. D's counsel declined invitation by Dist. Ct. to respond to comments in own closing and weight of evidence supported D's conviction. 9 pp.

SEARCH AND SEIZURE

U.S. v. Hall, No. 97-1898 (4/23/98). Appeal, C.D. Ill. Aff'd.

1. In motion to suppress evidence obtained through search of D's computer, initial search by technician during routine maintenance of computer constituted only "private search" not subject to 4th Amendment. Although technician eventually informed police of contents of computer, search already completed by time of notification; thus technician not "agent" of police for purposes of potential suppression.

2. Retention of D's computer for 1 day by technician in order for police to search its contents insufficient to invalidate search warrant for computer as unreasonable detention of D's property. Initial search made by technician who performed duties contracted by D who already permitted technician to hold computer for 4 days in ordinary course of business in order to make repairs.

3. Language of search warrant authorizing seizure of computer hardware and disks containing "child pornography and child erotica" sufficient to satisfy "particularity requirement" for warrants under 4th Amendment even though subject matter of warrant touched upon materials potentially protected under 1st Amendment. Use of term "child pornography" sufficiently clear to inform police of types of items subject to seizure. 13 pp.

U.S. v. McKinney, No. 96-3699 (4/30/98). Appeal, S.D. Ill., E. St. Louis Div. Aff'd.

Dist. Ct. did not err in den'g motion to suppress search warrant even though informant did not testify and information initially provided by informant to police officer lacked details about claim of drug activities. While informant's information alone would not have established sufficient probable cause, police use of informant to obtain 3 controlled buys at D's premises added requisite facts to establish probable cause. 6 pp.

SENTENCING

Pitsonbarger v. Gramley, No. 95-3912A (4/9/98). On remand from U.S. Sup. Ct. Aff'd.

In habeas pet., fact prosecutor introduced emotional evidence at 1st phase of capital sentencing with respect to victims' ages, family and sexual assault did not deprive petitioner of fair hearing even though State Sup. Ct. found such evidence to be irrelevant. Evidence at first phase overwhelming that petitioner committed multiple murders qualifying him for death penalty. 12 pp.

U.S. v. Carbaugh, No. 97-2311 (4/14/98). Appeal, N.D. Ill., E. Div. Rev'd and rem'd.

D's statement "I have a gun" without accompanying gesture sufficient to constitute "threat of death" for purposes of enhancing D's sentence under USSG section 2B3.1(b)(2)(F) when made in context of bank robbery. Record showed D's reference of gun to bank teller emphasized full and urgent import of words such that reasonable teller would view statement as threat of death. (Dissent filed.) 10 pp.

U.S. v. Carlino, No. 96-1382 (5/1/98). Appeal, N.D. Ind., Hammond Div. Aff'd.

In sentencing for m