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ATTORNEY FEES College funding change means students prevailed Students are entitled to fees as prevailing parties after their suit caused the University of Wisconsin to change its method of funding student organizations they considered offensive, the 7th U.S. Circuit Court of Appeals held on July 23. Southworth v. Board of Regents of the University of Wisconsin, No. 03-2314. A group of University of Wisconsin students sued the university in a Wisconsin federal court alleging that the university’s funding of certain groups violated the students’ constitutional rights. The case involved the university’s collection of mandatory fees from students, which were used to fund certain registered student organizations, such as the Lesbian, Gay and Bisexual Campus Center, which engaged in activities offensive to the plaintiffs’ beliefs. After the case went to the U.S. Supreme Court and back, the students prevailed in part. The district court awarded the students attorney fees. The 7th Circuit affirmed, finding that the students were the prevailing parties. Specifically, the university had made significant changes to the method by which it funds these groups and established a detailed appeal process, in an attempt to ensure that groups with differing viewpoints will get funded. Full text of the decision CIVIL PRACTICE Settlement binds parents of Columbine victim The parents of a deceased Columbine shooting victim whose counsel sent a one-sentence letter approving a group settlement could not later repudiate it after learning that not all of the other parties they thought had settled were in fact participating in the settlement, the 10th U.S. Circuit Court of Appeals held on July 21. Shoels v. Klebold, No. 03-1295. Michael and Vonda Shoels sued a number of defendants for failing to prevent the killing of their son, Isaiah, in the 1999 Columbine massacre. At one point, the office of the Shoels’ attorney sent a letter to another attorney who was trying to work out a global settlement, saying that the Shoels had approved a settlement with the shooters’ parents and three of their associates. When the Shoels realized that some of the other parties were not settling as they had believed, they repudiated the agreement. The shooters’ parents brought motions in federal court seeking enforcement of the settlement. The court determined that the Shoels had accepted the settlement and were bound by it. The 10th Circuit affirmed, holding that there was no error in the district court’s factual findings that the Shoels, through counsel, had entered into a binding settlement agreement. Full text of the decision CIVIL RIGHTS Alleged misconduct overturns record verdict Declaring that a verdict was procured through systematic misconduct by the plaintiff’s attorney and supported by dubious evidence, the Michigan Supreme Court overturned the largest sexual harassment jury award in U.S. history on July 22. Gilbert v. DaimlerChrysler Corp., No. 122457. Linda Gilbert, the first female millwright at DaimlerChrysler’s Detroit plant, complained to her supervisors of two incidents where lewd cartoons or photos were taped to her toolbox. Gilbert filed a sexual harassment suit. At trial, Gilbert’s expert testified that the harassment suffered by Gilbert was so severe that it changed her brain chemistry and caused a relapse of her alcohol and drug addiction. Gilbert’s attorney compared her plight to that of Holocaust survivors. The jury returned a $21 million verdict. The Supreme Court reversed and remanded, ruling that the trial court should have granted DaimlerChrysler’s motion for new trial. The attorney’s comments were a persistent and deliberate effort to incite passion and prejudice in the jury, and Gilbert’s expert had lied about his credentials and was not qualified to render his “prognosis.” Full text of the decision CONSTITUTIONAL LAW Town’s invoking of Jesus First Amendment breach A town council’s practice of invoking the name of Jesus Christ in a prayer to open monthly meetings violates the establishment clause of the First Amendment, the 4th U.S. Circuit Court of Appeals ruled on July 22. Wynne v. Town of Great Falls, S.C., No. 03-2069. The town council of Great Falls, S.C., began every meeting with a prayer. A typical prayer would refer to Jesus and sometimes end with audience members responding with a “hallelujah.” Darla Wynne, a Wiccan who attended the council meetings, challenged the practice, saying that it violated the First Amendment. The district court issued a permanent injunction against the council, enjoining its members “from invoking the name of a specific deity associated with any one specific faith or belief.” The 4th Circuit affirmed. Though opening prayers are not per se violative of the First Amendment, providing people time for quiet reflection does not give a legislative body license to advance its own religious views in preference to all others. Full text of the decision CONTRACTS Stadium sketch was no season ticket holder trick The parol evidence rule bars introduction of extrinsic evidence in season ticket holders’ complaint that the Pittsburgh Steelers assigned them undesirable seats for their season tickets, the Pennsylvania Supreme Court ruled on July 20. Yocca v. The Pittsburgh Steelers Sports Inc., No. J-10-2004. The Pittsburgh Steelers sent out a brochure advertising a new stadium under construction and advising of the opportunity to purchase stadium builder licenses (SBLs) for football games in the stadium. SBLs are licenses that grant the licensee the right to buy annual season tickets. The brochure indicated that applicants would get the chance to be assigned one of three choices of seats and included a vague diagram of the unfinished stadium. Ticket applicants later received an agreement, which included a slightly different drawing of the stadium. Several season ticket holders, dissatisfied with the seats they were assigned, sued for breach of contract. The trial court ruled for the Steelers, but the Commonwealth Court reversed, ruling that the trial court should have considered parol evidence, namely the terms and stadium drawing from the brochure. The Supreme Court reversed. The brochure was similar to an option contract: It offered respondees the option to accept an offer to purchase seats at some later date. The agreement constituted the entire contract between the Steelers and the plaintiffs. Full text of the decision EMPLOYMENT Ministerial exception is no bar to Title VII claim Despite the ministerial exception to Title VII of the 1964 Civil Rights Act, the 9th U.S. Circuit Court of Appeals ruled on July 23 that a female pastor’s sexual harassment claims may still proceed. Elvig v. Calvin Presbyterian Church, No. 02-35805. Monica Elvig alleged that shortly after beginning work as an associate pastor at Calvin Presbyterian Church, she was subjected to a hostile working environment by pastor Will Ackles. She formally complained to the church, which did nothing to stop his actions. After she filed a charge of discrimination with the Equal Employment Opportunity Commission, the church terminated her. Elvig then sued under Title VII for sexual harassment. A Washington federal court dismissed her claims. The 9th Circuit reversed, holding that sexual harassment is not a protected employment decision under the ministerial exception. The ministerial exception protects the church’s First Amendment right “to choose [its] representatives free from government interference and according to the dictates of faith and conscience.” Full text of the decision EVIDENCE U.S. official is ‘person’ in threatening-mail case In a federal case involving threatening communications, the finding of whether a letter is addressed to a “person” involves the envelope and salutation, and a government official can be a person, the 10th U.S. Circuit Court of Appeals held on July 20 on two questions of first impression. USA v. Williams, No. 02-1519. While in prison, Shawn Williams mailed numerous threatening letters about unsolved and potential murder cases, bomb threats and sexual mutilation threats. He admitted to writing and sending the letters and was indicted on seven counts of mailing threatening communications in violation of 18 U.S.C. 876. Following closing arguments, the jury tendered a question inquiring whether the phrase “addressed to a person” meant the address on the envelope or the greeting in a letter and whether the communications alleged in the indictment had to be addressed to an “individual name” as opposed to “an office.” The court said the face of the envelope controls, and that a federal government official, unlike a federal government agency, may be a “person” within the statute, even if not identified by a proper name. Williams moved for acquittal, arguing that in light of the supplemental instruction, the jury could not find him guilty. The court denied the motion. The jury returned guilty verdicts on all counts. The 10th Circuit affirmed, holding that one can look, at a minimum, to both the envelope and the salutation of a letter to determine if a letter is “addressed to any other person” within the meaning of the statute. The court held that a government official is a person within the meaning of the statute, which is ambiguous in that it does not define “person.” Full text of the decision INTERNATIONAL LAW Airlines need not warn of deep vein thrombosis An airline’s failure to warn its passengers of the possibility of deep vein thrombosis (DVT) during flights is not an “accident” under Article 17 of the Warsaw Convention, the 5th U.S. Circuit Court of Appeals held on July 21. Blansett v. Continental Airlines Inc., No. 03-40545. On a flight from Houston to London, a Continental Airlines passenger suffered an episode of DVT, which is a clotting of the blood in the extremities. As a result, he had a cerebral stroke that left him with permanent damage. Although many international airlines have added warnings that DVT may occur during a flight because of pressurized conditions, federal regulations do not require such warnings. The passenger’s relatives sued Continental under Article 17 in a Texas federal court. The court denied Continental’s motion to dismiss. The 5th Circuit reversed. Article 17 holds that airlines are responsible for injuries to passengers on an international flight when the injury results from an “accident.” According to French law, background to the Warsaw Convention, an accident is defined as being a “fortuitous, unexpected, unusual, or unintended event.” The 5th Circuit found that Continental’s decision to stick only to the required federal warnings was not an “unexpected or unusual event.” Full text of the decision JUDGES No recusal need because of ex-campaign manager A judge did not need to recuse himself because his former campaign manager was related to a party in a case, the North Dakota Supreme Court determined on July 22, affirming a defendant’s conviction. State v. Stockert, No. 20030105. A jury found a father guilty of disobeying a judicial order after failing to return his children to his ex-wife after visitation. On appeal, the defendant argued that Judge Zane Anderson, the trial judge in the case, should have recused himself due to conflict of interest. In a recent judgeship campaign, the ex-wife’s uncle had been Anderson’s campaign manager. Finding that case was not one in which a party or a party’s attorney was involved in the judge’s campaign and that the alleged conflict of interest was unrelated to the issues of the case, the state Supreme Court asserted that the judge’s impartiality could not reasonably be questioned. It was unknown whether the judge knew about the connection between his former campaign manager and the defendant’s ex-wife and whether the judge had a continuing relationship with his former campaign manager. Full text of the decision LABOR LAW Member can’t sue union’s attorney for malpractice An attorney hired by a union to perform services on behalf of a union member in connection with an arbitration hearing conducted pursuant to a collective bargaining agreement is immune from suit for malpractice by that member, the 3d U.S. Circuit Court of Appeals ruled on July 19 in an issue of first impression. Carino v. Stefan, No. 03-3679. Gisela Carino, a Prudential insurance agent and member of the United Food and Commercial Workers International Union, was terminated for suspected professional misconduct. The union lawyer filed a grievance on Carino’s behalf and eventually took the grievance to arbitration. The lawyer had Carino sign withdrawal and release forms that did not refer to any of Prudential’s concessions. Consequently, Carino lost her opportunity to arbitrate, and her employment record was never cleared. She sued the union lawyer for legal malpractice. The district court dismissed the case. The 3d Circuit affirmed. Carino’s claim is barred by the Labor Management Relations Act § 301(b), which says that any money judgment against a labor organization in a federal district court shall be enforceable only against the organization, not against any individual. Joining other circuit courts on the issue, the court found the language to indicate that individual union officers are not personally liable to third parties for actions taken on behalf of the union related to a collective bargaining agreement. Full text of the decision

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