Eleventh Circuit Several cases from the Circuit since the last update:

Cartwright v. Barnes rejects an attack, by the Libertarian Party, on Georgia's requirement that it get petitions signed by 5% of registered voters in a Congressional district in order to get on the ballot. Pretty easy decision, given that the Supreme Court specifically upheld this very aspect of this very statute already. More credits for doggedness than for creativity to the Libertarians on this one.

Horsley v. Feldt finds anti-abortion website-guy Horsley losing another defamation case, almost completely this time. (He lost completely last time, against Geraldo Rivera). This time he's suing NOW. Again the Court recognizes that the things said on shouting-heads TV programs aren't really meant to be taken literally, and again the Court also recognizes that things that are true are not defamatory. Horsley does get a partial reversal as to one ambiguous remark at press conference though, which mostly just proves the limitations of motions for judgment on the pleadings; it appears quite likely that a motion for summary judgment will be granted in due course.

Brochu v. City of Riviera Beach is a long opinion chock-full of really nasty internal police department politics, all heading towards the holding that the plaintiff police officer was not the victim of unlawful retaliation (under Title VII or the First Amendment) by his boss. He wasn't retaliated against on account of conduct protected under Title VII, because there was no evidence that the decisionmaker even knew about that conduct. And, as to the First Amendment claim, the Court reaffirms that the question of whether a public employee's speech is protected (which is a complicated balancing-test question) is for the court and not the jury – and holds that Brochu's was not. Here's the basic holding: that his "creation and dissemination of a virtually secret plan to overthrow the existing police administration and put himself and his friends in charge" wasn't really speech on a matter of public concern – but that even if it was, the City had legitimate reasons to stop it.

Jones v. U.S. is about time limits, and tolling, for federal habeas relief under the AEDPA. Jones loses.

Hunter v. Moore grants a writ of habeas corpus, finding that the defendant was unconstitutionally denied the assistance of counsel at a critical stage, in that the state trial court (in a bench trial) announced the guilty verdict immediately upon the conclusion of evidence without waiting for closing argument from the defense.

Mangieri v. DCH Healthcare Authority is a victory for the physician who was suing a state hospital for violating his First Amendment rights, in allegedly non-renewing its contract with his practice group to provide anesthesia services. The District Court dismissed. Court of Appeals reverses, holding that non-renewal of a contract in retaliation for protected speech is a violation of the First Amendment, even where the contractor had no property interest in the expectation that the contract would be renewed.

U.S. v. Hernandez reminds me of how one Eleventh Circuit Judge once described many opinions of that Court: "Drugs on boat. Defendant on boat. AFFIRMED." In fairness, though, this opinion is much more complicated and interesting than that, and includes some long discussion of arcane constitutional issues that real law nerds and intellectual criminal lawyers would enjoy.

U.S. v. Richardson is about child pornography. Holdings include: (a) though the jury instructions were erroneous in light of the Supreme Court's subsequent striking down of some of the child-porn statute, the error wasn't reversible; (b) defendant consented to the search of his computer disks; (c) the authorities didn't interrogate him after he invoked his right to counsel; and (d) his sentence was validly increased based on abuse of his stepdaughter. Brief aside to judges and law clerks, intended as helpful rather than snotty: "download" isn't the proper verb to describe the process of viewing files that are contained on zip disks.

In Miccosukee Tribe v. Southern Everglades Restoration Alliance, after finding that the plaintiffs had standing (at least on motion to dismiss), the Court holds that a certain committee was covered by the Federal Advisory Committee Act.



Bianco v. Dep't of Labor (Sept. 3, 2002) (not on Findlaw for some reason) is about the coverage of the Longshore and Harbor Workers Compensation Act. The holding is that, under the "situs" prong of the coverage test for that statute, the claimant wasn't covered because she wasn't really working in a maritime location.

Dacosta v. Nwachuckwa is the case about the teacher who (allegedly) went berserk towards a female student at Ga. Military College, as I previously discussed here. The Court holds that this wasn't a violation of the Fourteenth Amendment's dwindling substantive due process component, and that the plaintiff has causes of action under state law. The opinion leaves one wondering, though, "what about a Fourteenth Amendment equal protection claim?"

Alabama appellate courts These cases from the Supreme Court, and one worth mentioning from Ct. Civ. App., since last update:

In Runyans v. Littrell, the Ala. S. Ct. held that parents weren't liable under the Dram Shop Act for injuries to kids who got drunk at a party at their house, where the parents didn't supply the alcohol. This reaffirmed prior cases holding the same thing; and the Court holds that a more recent but separate statute, making it a misdemeanor to let kids get drunk at a party at your house even if you don't provide the alcohol, does not change this rule.

Byrd v. Bentley affirms a big jury verdict for breach of contract, in favor of a former employee against the employer. They promised him commissions and an ownership interest in the company if he met certain goals; he did, but got hosed. The Court holds (a) the contractual promise of an ownership interest, in connection with an employment agreement, was not a sale of securities that was subject to the statute of frauds, so the oral agreement was enforceable; (b) there was sufficient evidence that an agreement existed; and (c) evidentiary objections about a tape recording were without merit

Ex parte Avery is a fight over who gets custody of some election materials: a Circuit Judge (who wants the Circuit Clerk to keep them) or the DA (who is conducting an investigation into alleged voter fraud). The DA wins. The Court holds that the Democratic Party doesn't need the materials, because there's no ongoing election contest to which they are relevant, that the Circuit Judge had no statutory authority to order that the materials be in the custody of the Clerk, and that there was apparently not even any litigation that would give the Circuit Court any jurisdiction over the disposition of the materials.

The Court of Civil Appeals reaffirmed in Judd v. Sandefer (Aug. 23, 2002) that a defendant that makes an offer of judgment under Rule 68, and then wins the case, can't get its costs – only a defendant that makes an offer of judgment and then loses but loses less than it offers. This is the way that the federal rule has been interpreted as well, I believe. Two Judges say that it doesn't make much sense, but that's the way it is until lots of cases are overruled or the rule is changed.

Eleventh Circuit The following 8 cases since last posting:

Dixon v. Burke County is about sex discrimination in the selection of a Board of Education member. In Burke County GA, believe it or not, BOE members are chosen by a grand jury. And, believe it or not, the legal advisor to the grand jury, the District Attorney, advised them that they should pick somebody of the same race and gender as the deceased BOE member who was being replaced (though he then told them that they could pick anyone they wanted within the limits of the law). This, not so surprisingly, meant "white male." And, not so surprisingly, the grand jury – upon the suggestion of its foreperson – followed that advice and picked a white male (and didn't pick Ms. Dixon). Nonetheless, the Circuit (affirming the District Court) says that Ms. Dixon has no claim for sex discrimination against the County, the DA, or the foreperson. Why? Because, on a rather odd view of what it means to "cause" something, they didn't "cause" Ms. Dixon not to be selected. The word "cause" is essentially conflated with the word "coerce", in a way that drastically narrows section 1983 liability. And the County escapes liability because (says the Court) there's no way of knowing whether the DA's and the foreperson's suggestion of sex discrimination was really the deciding factor in all the other grand jury members' votes.

Intern. Cosmetics v. McHeileh is about a contract and trademark dispute in the cosmetics industry. The only interesting part, to me, is pondering why (apparently) a cosmetics product called "FAIR & WHITE" is successfully sold to African-American consumers.

In Griffith v. GM, the plaintiff claimed that the pickup truck's middle seat should have had something more than just a lap belt. The Court holds that this claim is preempted because a federal motor vehicle safety standard specifically allowed that design as one of the options that manufacturers could choose among. The Court also chides GM for not having given adequate information about what other cases its expert had testified in, but denies relief to the plaintiff on this issue largely because she waited too long to make an issue of it in the trial court.

Williams v. Motorola rules for the employer in claims under the ADA (holding that the employee wasn't terminated because of a perception that she was disabled, but for separate legitimate reasons) and Title VII (holding that she had no evidence that she was retaliated against for protected conduct, that she suffered sex harassment, or that she was discriminated against on the basis of sex), Mostly a fact-based case about somebody whom the Court describes as an awful employee.

U.S. v. Prouty reverses a sentence based on the failure to allow allocution (which is the part of the sentencing hearing where the defendant (not just the lawyers) is asked if he or she wants to say anything). As the Court noted, quoting Justice Frankfurter, the failure to ask the defendant if he or she has anything to say has been reversible error since 1689. Even though there was no objection in the District Court, the Circuit says that the lack of allocution was plain error. It might have been harmless if the defendant had been sentenced to the low end of the guidelines range, but he wasn't and so it wasn't harmless error. The Court also reverses the refusal to set a payment schedule for restitution, where the guy didn't have the $ to pay it immediately.

Troville v. Venz holds that civil detainees (such as the plaintiff, an alleged sexual predator) can't be required to pay the filing fee when they are proceeding in forma pauperis in a civil case challenging the conditions of confinement; the statute requiring such payments applies only to prisoners, which doesn't include civil detainees. The Court also holds that it was error to deny the plaintiff the right to amend his complaint.

In re Brown holds that, where Brown set up a trust with the income to come to her during her lifetime and the remainder to charities, that income stream could be reached by her creditors in bankruptcy (largely because she, rather than someone else, was the settlor), but the corpus of the trust could not.

Rand v. Nat. Financial Ins. Co. involves a disability policy. The insured won a jury verdict against the insurer; the insurer appeals from the denial of its motion for judgment as a matter of law, but loses because it did not make such a motion at the close of all the evidence as required by Rule 50 (instead, it only moved after the verdict). The Court doesn't decide whether this means that there is NO review or only limited review of the denial of the motion for judgment as a matter of law; under either standard, that ruling is affirmed. However, this doesn't affect the insurer's motion for new trial, which is granted because the jury instructions on Florida fraud law weren't right.