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Friday, October 15, 2004

Indiana Decisions - 7th Circuit posts five today

Tuffendsam, Barbara v. Dearborn Bd Health (SD Ind., Judge David F. Hamilton)

Before POSNER, KANNE, and EVANS, Circuit Judges.
POSNER, Circuit Judge. The plaintiff in this civil rights suit against a county health board and its members bought a house that had a septic tank rather than being connected to the municipal sewer system. Concerned that the septic tank might no longer be working properly, she negotiated a reduction in the price of the house that would help her defray the expense of her share of the cost of building a line that would connect her and her neighbors’ houses to the municipal sewer system.

Unbeknownst to her, more than two years earlier the county health board had discovered that the septic tank was indeed not working properly—that sewage was leaking from it—and had ordered the then-owner of the house to abate the sewage discharge within 90 days. He failed to do so and the board issued another, similar order, giving him another 30 days to comply. He failed to comply and the board failed to follow up. But after the plaintiff bought the house, the board finally woke up, and it began legal proceedings against her to get the problem corrected. Her neighbors refused to contribute to the cost of a sewer line and the plaintiff was unwilling to pay the entire cost ($40,000) herself. * * * The suit charges that by failing to get the previous owner to correct the problem and by failing to pursue the neighbors with the same vigor that it was pursuing her, the board deprived her of property without due process of law and also denied her the equal protection of the laws, all in violation of the Fourteenth Amendment. She seeks damages plus an order that the board buy her house from her and, presumably in the alternative, enforce the sanitation laws against the neighbors so that they’ll be induced to contribute to the cost of building a sewer line. * * *

The plaintiff in this case is a victim of uneven enforcement, nothing more, and as we said in Hameetman v. City of Chicago, 776 F.2d 636, 641 (7th Cir. 1985), “The Constitution does not require states to enforce their laws (or cities their ordinances) with Prussian thoroughness as the price of being allowed to enforce them at all. Otherwise few speeders would have to pay traffic tickets. Selective, incomplete enforcement of the law is the norm in this country.” AFFIRMED.

Pease, Christopher v. Production Work 707 (ND Ill.)
Before BAUER, EASTERBROOK, and MANION, Circuit Judges.
EASTERBROOK, Circuit Judge. Local 707 of the Production Workers Union and Local 150 of the Operating Engineers Union have been engaged in a long-running battle for the right to represent truck drivers and associated workers at Randall Industries. * * * In this litigation four employees (with the aid of counsel furnished by Local 150) contend that Randall failed to carry out its collective bargaining agreement with Local 707. To succeed in such an action, the employees first must show that Local 707 violated its duty to represent them. * * * Affirmed.
USA v. Henningsen, Paul (ED Wis.)
Before BAUER, RIPPLE, and ROVNER, Circuit Judges.
BAUER, Circuit Judge. Defendant-Appellant Paul A. Henningsen appeals his convictions on four counts of mail fraud under 18 U.S.C. § 1341. Henningsen argues that there was insufficient evidence to support the convictions and challenges the factual findings made by the district court judge during sentencing. We affirm the convictions, but vacate the sentence and remand the case to the district court for resentencing. The mandate of this court is stayed pending the Supreme Court’s decision in United States v. Booker. * * *

The Supreme Court has granted certiorari in Booker, whereupon in the coming weeks it will determine the application of Blakely to the federal sentencing guidelines. Therefore, we will stay our mandate until Booker is decided. Within fourteen days of the Supreme Court’s decision in Booker, both parties may submit a memorandum setting forth their views on the application of that decision to this case.

Conclusion. For the foregoing reasons, we AFFIRM the judgment of the district court on the merits, and VACATE the sentence and REMAND to the district court for resentencing. This court’s mandate is stayed pending the Supreme Court’s decision in Booker.

Griffin, Phyllis v. Roupas, Elaine (ND Ill.)
Before POSNER, RIPPLE, and WOOD, Circuit Judges.
POSNER, Circuit Judge. The plaintiffs, who appeal from the grant of a motion by the defendants (the members of the Illinois State Board of Elections) to dismiss the complaint for failure to state a claim, are working mothers who contend that because it is a hardship for them to vote in person on election day, the U.S. Constitution requires Illinois to allow them to vote by absentee ballot. Illinois allows voting by absentee ballot only if the voter either “expects to be absent [on election day] from the county in which he is a qualified elector” or is unable to vote in person because of physical incapacity, religious observance, residing outside his precinct for attendance at a college or university, or having to perform specified official duties—election judge in another precinct, certain other election duties, or serving as a sequestered juror. * * * The suit was correctly dismissed. AFFIRMED.
Bricklayers IL 21 v. Banner Restoration - denial of appellant's motion to stay the mandate

Posted by Marcia Oddi on October 15, 2004 01:30 PM
Posted to Indiana Decisions