Weekly Case Digests August 31, 2020 September, 4 2020.

Byline: Derek Hawkins

7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Kiera S. Cherry, et al., v. City of Chicago, Illinois

Case No.: 19-1534; 19-1558

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

Focus: Bankruptcy Chapter 13 Payment Plan

This is the thirdand we hope finaldecision in a series arising from the efforts of debtors in Chapter 13 bankruptcy proceedings to avoid or defer paying parking and other vehicular fines. The first decision, In re Steenes, 918 F.3d 554 (7th Cir. 2019) (Steenes I), interprets 11 U.S.C. 1327(b), which provides: Except as otherwise provided in the plan or the order confirming the plan, the confirmation of a plan vests all of the property of the estate in the debtor.

The Bankruptcy Court for the Northern District of Illinois adopted a form confirmation order for Chapter 13 plans that retained all property in the estate, notwithstanding this statutory presumption. Because fines for parking and other vehicular offenses in Chicago are assessed against the car's owner, keeping cars in the estates meant that the automatic stay of 11 U.S.C. 362 prevented the City from using collection devices such as towing or booting. More: because the plans did not list fines as payable debts, the confirmation orders overrode any obligation to pay them.

Steenes I holds that this approach conflicts with 1327(b). We recognized that judges have discretion to keep property in an estate but added that "the exercise of all judicial discretion requires a good reason." 918 F.3d at 557. Debtors may need cars but also must pay the cost of their maintenance insurance, repairs, gasoline, and parking, among other things. Using the bankruptcy process to enable debtors to operate cars while avoiding the costs that others must pay is not appropriate. We wrapped up: A case-specific order, supported by good case-specific reasons, would be consistent with 1327(b), but none was entered in any of these cases.

Cherry reminds us that a bankruptcy court must confirm any plan that satisfies 11 U.S.C. 1325(a). Because that subsection does not address whether the estate holds assets such as cars, Cherry contends that it cannot matter why a given debtor checks the box. Yet 1325(a)(1) tells us that a court must confirm a plan if it "complies with the provisions of this chapter and with the other applicable provisions of this title". Section 1327(b) is one of those provisions. It need not be mentioned separately in 1325(a). A bankruptcy court may confirm a plan that holds property in the estate only after finding good case-specific reasons for that action. Because the bankruptcy court approved these plans without finding that such reasons exist, its orders are REVERSED.

Reversed

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7th Circuit Court of Appeals

Case Name: Gregory Williams v. Leonta Jackson

Case No.: 18-2631

Officials: RIPPLE, BRENNAN, and SCUDDER, Circuit Judges.

Focus: Ineffective Assistance of Counsel

Gregory Williams appeals the denial of his application for federal habeas corpus relief following convictions in Illinois state court in two separate cases for raping two womenoffenses that resulted in sentences totaling 66 years' imprisonment. Williams contends that his defense attorney violated his Sixth Amendment right to the effective assistance of counsel by not only advising him to reject a 41-year plea offer, but also failing to inform him of his maximum sentencing exposure if he proceeded to trial in both cases and lost. An Illinois court rejected these claims, concluding that Williams failed to provide any information pertinent to one of the two cases that gave rise to the 41-year plea offer. Without knowing anything about that case, the Illinois court reasoned, there was no way to assess defense counsel's performance and thus no way to conclude that Williams received ineffective assistance. Finding the Illinois court's conclusion reasonable, the district court denied federal habeas relief. We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Joseph Wilborn v. Alex Jones

Case No.: 18-1507

Officials: SYKES, Chief Judge, and BAUER and EASTERBROOK, Circuit Judges.

Focus: Ineffective Assistance of Counsel

An Illinois jury convicted Joseph Wilborn for the murder of a rival gang member in Chicago. In opening statements, Wilborn's defense attorney told the jury it would hear from his codefendant, Cedrick Jenkins, identifying him as the actual shooter. During the trial, Jenkins indicated his testimony would no longer be favorable to Wilborn. Defense counsel, with Wilborn's approval, did not call Jenkins to the stand. Wilborn filed for habeas corpus relief, alleging ineffective assistance of counsel. The district court denied his petition and he appealed. We consider whether trial counsel performed deficiently and caused cognizable prejudice when he told the jury in opening statements that Wilborn's codefendant would testify but then declined to call Jenkins as a witness. We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Rashad Rae Robinson

Case No.: 19-2441

Officials: ROVNER, WOOD and BARRETT, Circuit Judges.

Focus: Sentencing Guidelines

Rashad Rae Robinson pled guilty to a conspiracy to distribute methamphetamine after he was caught in a controlled buy. The only question we face in this appeal is, "In his plea, how much methamphetamine did he admit to selling?" And, of course, this question is only relevant because Robinson contends his prison sentence is too long. Robinson claims on appeal that although the government indicted him for a participating in a conspiracy involving 500 grams or more of methamphetamine, he only pled guilty to a conspiracy involving a lesser or unspecified amount. The facts indicate otherwise and we affirm the district court's holding.

Affirmed

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7th Circuit Court of Appeals

Case Name: Monwell Douglas v. Faith Reeves

Case No.: 18-2588

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

Focus: 1st Amendment Violation

In this suit under 42 U.S.C. 1983, plaintiff Monwell Douglas, an Indiana prisoner, claims that defendant Faith Reeves, his casework manager, retaliated against him for activity protected by the First Amendment. Douglas asserts that after he successfully appealed a prison disciplinary sanction, Reeves punished him for taking the appeal by refusing to restore benefits he had lost as a result of discipline. The district court granted summary judgment to Reeves. We affirm because no reasonable jury could conclude that Reeves inflicted deprivations on Douglas likely to deter a person of ordinary firmness from engaging in First Amendment activity.

Affirmed

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7th Circuit Court of Appeals

Case Name: William Morgan, et al., v. Jesse White, Secretary of State of Illinois, et al.,

Case No.: 20-1801

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

Focus: Abuse of Discretion Preliminary Injunction

Illinois permits voters to place initiatives and referenda on both local and statewide ballots, but it also requires proponents to collect enough signatures to show that each proposal is likely to have a decent amount of support. The state allows 18 months for proponents to collect signatures. This year that period ended for the State of Illinois on May 3, 2020 and will end for the City of Evanston on August 3. Seven plaintiffs filed this suit under 42 U.S.C. 1983 contending that the state's requirements are too onerous, and hence unconstitutional, given the social-distancing requirements adopted by the Governor of Illinois in light of the COVID-19 pandemic. A district judge expressed skepticism that any of the plaintiffs has standing but found it unnecessary to resolve that question because she denied relief on other grounds. 2020 U.S. Dist. LEXIS 86618 (N.D. Ill. May 18, 2020). Plaintiffs have appealed. We expedited the briefing, and all litigants have agreed to waive oral argument to facilitate a faster decision.

The district court's approach, sometimes called hypothetical standing, was disapproved by the Supreme Court in Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998). But because at least one plaintiff, William Morgan, has standing, the district court had jurisdiction. Morgan began his petition campaign (he seeks to amend the state's constitution) before filing suit. Relief such as reducing the number of signatures required, permitting electronic rather than physical signatures, and extending deadlines would materially improve his chances. Other plaintiffs also want to amend the state's constitution, and one proposes a change that would affect Evanston alone. Federal judges routinely adjudicate suits filed by persons who have encountered difficulty obtaining the signatures required to put candidates' names or substantive proposals on the ballot.

This is as far as plaintiffs get, however. District judges have discretion when weighing the considerations relevant to requests for preliminary relief. See, e.g., Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008). One important question, when a plaintiff seeks emergency relief, is whether the plaintiff has brought the emergency on himself. The district judge concluded that Morgan had done so. During most of the time available to seek signatures, Morgan did absolutely nothing. He did not evince any interest in the subject until early April 2020, several weeks after the Governor began to issue orders requiring social distancing. The other plaintiffs did not do anything of substance until the suit was on file. Plaintiffs had plenty of time to gather signatures before the pandemic began. That's a good reason to conclude that they are not entitled to emergency relief.

We add that plaintiffs also have not established that the Governor's orders limit their speech. The orders concern conduct (social distancing), not what anyone may write or say. Orders regulating conduct...