Weekly Case Digests April 13, 2020 April 17, 2020.

Byline: WISCONSIN LAW JOURNAL STAFF

7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Stephen R. West v. Louisville Gas & Electric Company, et al.

Case No.: 19-2442

Officials: BAUER, EASTERBROOK, and HAMILTON, Circuit Judges.

Focus: Easement

This appeal presents a question about how 47 U.S.C. 541(a)(2), part of the Cable Communications Policy Act of 1984, affects use of a utility easement in Indiana. In 1938 a predecessor of Stephen West granted a perpetual easement to a predecessor of Louisville Gas & Electric Company, permitting it to build and maintain a 248-foot-tall tower carrying high-voltage electric lines. (Ownership of both the underlying land and the easement has changed hands since 1938. For simplicity we refer to the current owners.) In 2000 Louisville Gas permitted Charter Communications to install on the towers a fiber-optic cable that carries communications (telephone service, cable TV service, and internet data). Louisville Gas asked in 1990 for explicit permission to do this, and West refused. In 2000 it concluded that the existing easement allows the installation of wires that carry photons (that is, fiber-optic cables) along with the wires that carry electrons. West disagreed and filed this suit under the diversity jurisdiction, seeking compensation from Louisville Gas, under Indiana's substantive law, for the addition of the new cable.

It is easy to imagine a rule of state law under which only the most explicit language in an easement dedicates the land to any given use and it is equally easy to imagine a rule of state law that reads easements more broadly. Where does Indiana stand? The answer is that Indiana is permissive. It treats easements as permitting new uses compatible with the original grant. See Howard v. United States, 964 N.E.2d 779, 783 (Ind. 2012) ("a new use that is compatible with the original purpose is within the scope of the easement") (emphasis in original), relying on Fox v. Ohio Valley Gas Corp., 235 N.E.2d 168 (Ind. 1968). "The owner of an easement, known as the dominant estate, possesses all rights necessarily incident to the enjoyment of the easement. The dominant estate holder may make repairs, improvements, or alterations that are reasonably necessary to make the grant of the easement effectual." McCauley v. Harris, 928 N.E.2d 309, 314 (Ind. App. 2010) (internal citation omitted). See also Rehl v. BilleI, 963 N.E.2d 1 (Ind. App. 2012). What's more, most states permit the holder of an easement to allow third parties to use rights available under the easement. See Restatement (Third) of Property (Servitudes) 5.9 (2000). We have not seen anything to suggest that Indiana would reject that principle.

So as far as we can tell, then, the use that Louisville Gas and Charter have jointly made of the easement is permissible under Indiana law. At least the air rights have been "dedicated" to transmission, and a telecom cable is "compatible" with electric transmission. Both photons and electrons are in the electromagnetic spectrum. Now that West and Louisville Gas have settled their own differences about the scope of the 1938 easement, there is no basis for any relief against Charter. Whether other states' laws, or other situations (such as an easement for a buried gas pipeline being used as the springboard for a cable company to build towers and string lines above the corridor), would justify a more restrictive reading of what has been "dedicated for compatible uses" is a question for some other case.

Affirmed

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7th Circuit Court of Appeals

Case Name: Carolyn Mascow, et al. v. Board of Education of Franklin Park School District No. 84; et al.

Case No.: 19-2563

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

Focus: Due Process Violation

Carolyn Mascow, a teacher who had tenure under Illinois law, was laid off in 2017. Because her latest rating was "unsatisfactory," she was not only first in line for layoff when the school lost one position but also lacked any recall rights if the school district began hiring againas it did. She contends in this suit under 42 U.S.C. 1983 that the Due Process Clause of the Fourteenth Amendment entitled her to a hearing before the layoff and that the "unsatisfactory" rating violated the First Amendment, applied to the states through the Fourteenth. The district court dismissed the due-process claim on the pleadings and in a second order granted summary judgment to defendants on the first-amendment claim. 2019 U.S. Dist. LEXIS 120074 (N.D. Ill. July 18, 2019).

Local 571 of the Illinois Federation of Teachers joined Mascow as a plaintiff. Although the notice of appeal named both Mascow and Local 571, their joint brief does not make any argument on the Union's behalf. We treat its claims as abandoned. The problem with this potential subject is that Mascow was rated "unsatisfactory" in February 2017, one month before being told that she would be laid off (and four months ahead of the layoff's effective date). If she had an opportunity for a hearing when she received the "unsatisfactory" rating, she would not be entitled to a second hearing when laid off. And it would not matter whether she used or bypassed an opportunity in February 2017; a state need not offer more than one opportunity for a hearing about a subject.

Neither Illinois nor Mascow's school district offers a formal process for contesting a rating. The litigants agree, however, that teachers have informal opportunities to seek review. Neither the district judge nor the parties' briefs in this court address just how teachers can obtain review of their ratings and whether those opportunities satisfy the constitutional need for "some kind of hearing." Goss, 419 U.S. at 579 (emphasis in original). Neither the district judge nor the litigants has attempted to apply the approach prescribed by Mathews v. Eldridge, 424 U.S. 319 (1976), for determining what kind of process is due in a given situation. It would be inappropriate for an appellate court to try to resolve these subjects without briefs focused on the vital issues. They should be considered first by the district court.

The judgment is vacated to the extent that it addresses Mascow's claim under the Due Process Clause and otherwise is affirmed. The case is remanded for proceedings consistent with this opinion.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Ionel Muresanu

Case No.: 18-3690

Officials: FLAUM, SYKES, and ST. EVE, Circuit Judges.

Focus: Jury Instructions

Ionel Muresanu was arrested in Wisconsin for his role in a multistate ATM skimming operation. A grand jury charged him with four crimes: possession of counterfeit access devices and three counts of aggravated identity theft. The identity-theft charges were legally defective. The indictment alleged that Muresanu attempted to commit aggravated identity theft, but there is no such federal crime; the statutory definition of aggravated identity theft doesn't cover attempts.

Muresanu's attorney did not object to the defective indictment in a pretrial motion under Rule 12(b)(3) of the Federal Rules of Criminal Procedure. Instead, he strategically waited until trial and moved for acquittal on the identity theft counts after the government rested its case. The district judge denied the motion, ruling that Muresanu waived the objection by failing to raise the matter in a Rule 12(b)(3) motion. The judge then deleted the attempt language from the jury instructions and instructed the jury on the elements of the completed crime. The modified instruction conformed to the statutory offense but varied from the charges in the indictment. The evidence overwhelmingly supported conviction on the reformulated charges, and the jury found Muresanu guilty on all counts. The judge imposed a prison sentence of 34 months on count one and the mandatory 24-month sentence on each of the three identity-theft counts, consecutive to count one but concurrent to the other identity-theft counts.

Muresanu raises two challenges to the identity-theft convictions. First, he argues that the defect in the indictment its failure to charge an actual federal offensedeprived the court of jurisdiction over these counts. Second, he argues that the judge's "cure" for the defectinstructing the jury on the completed crime rather than an attemptviolated his Fifth Amendment right to be tried only on charges contained in the grand jury's indictment. He also challenges his sentence on count one for possession of counterfeit access devices.

We affirm in part and reverse in part. The judge correctly applied the Sentencing Guidelines to count one, so that challenge fails. Counts two through four are another matter. Defects in the indictment are not jurisdictional, United States v. Cotton, 535 U.S. 625, 631 (2002), and under Rule 12(b)(3) they must be raised by pretrial motion, as the judge correctly recognized. But the modification of the jury instructions led the jury to convict Muresanu of crimes not charged by the grand jury, violating his Fifth Amendment right to be tried only on charges brought by indictment. That category of error is per se reversible. Stirone v. United States, 361 U.S. 212, 217 (1960). We have no choice but to vacate the judgment on counts two through four and remand for resentencing on count one alone.

Affirmed in part. Reversed in part.

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7th Circuit Court of Appeals

Case Name: Donald W. Bauer, et al. v. Kimberly G. Koester, et al.

Case No.: 19-1786

Officials: KANNE, SYKES, and ST. EVE, Circuit Judges.

Focus: Foreclosure Damages

This appeal arises out of Illinois foreclosure proceedings on real estate owned by Donald and Lauretta Bauer. Even though they were able to redeem their property, the Bauers and two of their children, Karla and David (collectively, "the Bauers"), believe they were harmed by the proceedings and now seek damages under 42 U.S.C. 1983. The Bauers named as defendants...