Weekly Case Digests October 26, 2020 October 30, 2020.

Byline: WISCONSIN LAW JOURNAL STAFF

7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Sandor Demkovich v. St. Andrew the Apostle Parish, Calumet City, et al.,

Case No.: 19-2142

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

Focus: 1st Amendment Violation Employment Discrimination Ministerial Employees

The First Amendment prohibits enforcement of federal employment discrimination statutes against decisions of churches and other religious organizations to hire or fire their "ministerial employees." Our Lady of Guadalupe School v. Morrissey-Berru, 140 S. Ct. 2049 (2020); HosannaTabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171 (2012). This interlocutory appeal presents a question about extending this exemption beyond hiring and firing decisions: should the constitutional exemption be extended to categorically bar all hostile environment discrimination claims by ministerial employees, even where there is no challenge to tangible employment actions like hiring and firing? Our answer is no.

In the United States legal system, encounters between churches and civil law are always fraught. Such cases, including this one, can pose a tension between two valued legal goods: constitutional protection of the freedom of religion and other legal rights. In such cases, the courts have a long history of balancing and compromising to protect religious freedom while enforcing other important legal rights. The problem here is particularly sensitive, involving tension between the freedom of religion and employees' rights to be free from invidious discrimination, also a compelling governmental interest. E.g., New York State Club Ass'n v. City of New York, 487 U.S. 1, 14 n.5 (1988). The problem is not so sensitive as to preclude line-drawing altogether.

Defendants urge us to bar all statutory hostile environment claims by ministerial employees. Recognizing the history of balance and compromise, defendants acknowledge that the First Amendment does not bar those same ministerial employees from bringing contract and tort claims against their employers and supervisors. Nor does the First Amendment bar enforcement of criminal laws arising from mistreatment of those same employees. Plaintiff argues that churches do not need, as a matter of constitutional law, complete protection from statutory harassment claims so long as they do not challenge any tangible employment actions used to select and control ministerial employees.

The right balance is to bar claims by ministerial employees challenging tangible employment actions but to allow hostile environment claims that do not challenge tangible employment actions. Religious employers' control over tangible employment actionshiring, firing, promoting, deciding compensation, job assignments, and the likeprovides ample protection for the free exercise of religion. The First Amendment does not require complete immunity from the sometimes horrific abuse that defendants' bright-line rule would protect.

Sensitive issues of potential entanglement, to use the language of Establishment Clause jurisprudence, lie ahead. We are not persuaded, however, that they cannot possibly be managed in a balanced way that protects both religious liberty and the rights of employees to be free from discriminatorily hostile work environments. In so holding, we join the Ninth Circuit, see Bollard v. California Province of the Society of Jesus, 196 F.3d 940 (9th Cir. 1999); Elvig v. Calvin Presbyterian Church, 375 F.3d 951 (9th Cir. 2004), and depart from the Tenth, see Skrzypczak v. Roman Catholic Diocese of Tulsa, 611 F.3d 1238 (10th Cir. 2010).

We answer the certified question in the NEGATIVE. Accordingly, we AFFIRM the decision of the district court denying dismissal of the disability claim, and REVERSE its decision dismissing the sexual orientation claim. The case is REMANDED for further proceedings consistent with this opinion.

Affirmed in part. Reversed and remanded in part.

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7th Circuit Court of Appeals

Case Name: United States of America v. Ladmarald Cates

Case No.: 19-1806

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

Focus: Ineffective Assistance of Counsel

Ladmarald Cates, an officer with the Milwaukee Police Department, sexually assaulted Iema Lemons in her home after Cates responded to Lemons' 911 call. A jury convicted Cates by special verdict of aggravated sexual abuse and the district court judge sentenced him to 24 years in prison. We affirmed on direct appeal. Cates filed an action alleging ineffective assistance of counsel. The district court judge denied the motion. We reversed, finding Cates' trial and appellate counsel performed deficiently. The district court reopened the criminal case and the government obtained a three-count superseding indictment. Facing a second trial, Cates moved to dismiss the aggravated sexual abuse by force allegation based on issue preclusion. After his motion was denied, this appeal followed. For the subsequent reasons, we affirm the district court's denial of that motion.

Affirmed

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7th Circuit Court of Appeals

Case Name: Continental Vineyard, LLC, et al., v. Vinifera Wine Co., LLC, et al.,

Case No.: 19-2089; 19-2173

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

Focus: Summary Judgment Sufficiency of Evidence

This case pits two wine enterprises against one another. In one corner, we have Gerald Forsythe, who formed Indeck-Paso Robles, LLC ("Indeck") for the purpose of creating and managing a wine-grape vineyard. In the other, we have Randy Dzierzawski, who started out as Forsythe's business associate and vice-president and later branched out on his own. In time, Forsythe became convinced that Dzierzawski and his company stole valuable business opportunities from Forsythe's operations. Litigation ensued, with an ultimate outcome largely favoring Dzierzawski, but also giving Forsythe's company $285,731 as disgorgement.

Forsythe and his related companies have appealed from the judgment in favor of the Dzierzawski parties, largely on the ground of allegedly fatal inconsistencies in the jury's verdict. Dzierzawski has cross-appealed from the disgorgement order. Forsythe argues that Dzierzawski stole a corporate opportunity from his company, but we agree with the district court that the evidence does not support such a finding. As for the verdicts, we are left to make the best of a bad thing. They are hard to reconcile at first glance, but neither party made any objection until several weeks after the jury was disbanded. Without such a contemporaneous objection, the court was left on its own. It resolved the uncertainties in a way that respected what the jury said. Finally, with respect to the cross-appeal, we see no reversible error in the disgorgement order. Although the case is something of a procedural mess, we conclude in the final analysis that the judgment of the district court should be affirmed.

Affirmed

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7th Circuit Court of Appeals

Case Name: Illinois Republican Party, et al., v. J.B. Pritzker

Case No.: 20-2175

Officials: WOOD, BARRETT, and ST. EVE, Circuit...