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ADR Michigan still recognizes common law arbitration The Michigan Arbitration Act (MAA) does not pre-empt common law arbitration agreements, which can be revoked unilaterally, the Michigan Supreme Court ruled on May 4. Wold Architects and Engineers v. Strat, No. 126917. When Wold Architects and Engineers bought Thomas Strat’s company, the parties signed an employment agreement with an arbitration clause stating that an arbitrator would be picked by the American Arbitration Association and any dispute would be resolved under the AAA’s Voluntary Labor Arbitration Rules. The purchase agreement had no arbitration clause. When a dispute arose, Strat filed a demand for arbitration with the AAA, and Wold filed a counterdemand. After querying AAA about the scope of arbitration, Wold revoked its agreement to arbitrate, claiming the issues fell under the purchase agreement, not the employment agreement. The arbitrator found that Wold could not unilaterally revoke the employment agreement’s arbitration clause. Strat was awarded $104,559 in arbitration, and the trial court denied Wold’s motion to vacate the award. An intermediate appellate court reversed. The Michigan Supreme Court affirmed. When an arbitration clause does not provide for enforcement by the courts, it does not meet the threshold requirements of the MAA. It is then a common law arbitration agreement, whose hallmark continues to be the unilateral-revocation rule, and is not pre-empted by the MAA. Common law arbitration gives parties a mechanism for court supervision of unanticipated claims, and it protects parties’ right to contract. Full text of the decision CIVIL PRACTICE No abuse of discretion in disruptive juror’s removal A Georgia intermediate appellate court erred in holding that a trial court abused its discretion in removing a juror from a criminal trial because the juror’s disruptive behavior warranted his removal, the Georgia Supreme Court held on May 8. State v. Arnold, No. S05G1871. The jury in George Arnold’s criminal trial deadlocked, 10-2, shortly after deliberations began. During deliberations, discussions between the jurors became heated, and jurors complained that the foreman had called them “stupid” and referred to them as “monkeys.” When the trial court admonished him for his behavior, the foreman proceeded to question the impartiality of the trial court. Prosecutors moved to remove the juror, and the trial court granted the request. After the foreman’s removal, the jury returned a unanimous guilty verdict. However, an intermediate appellate court reversed, holding that the trial court had abused its discretion in removing the juror for criticizing the trial court and his fellow jurors. Reversing, the Georgia Supreme Court held that the juror’s misconduct reached the legal standard for removal of a juror, and that the trial court had not abused its discretion. The court said, “While the jury room may be an appropriate place for heated debate, and cursing may sometimes occur, it does not follow that jurors must be immunized from removal for behavior which the trial court, in its broad discretion, determines to be subversive to the goals of justice.” CIVIL RIGHTS Felon franchise law OK under Voting Rights Act Currently incarcerated felons and parolees in New York cannot use the Voting Rights Act to challenge the state law denying them the right to vote, the 2d U.S. Circuit Court of Appeals ruled on May 4. Hayden v. Pataki, No. 04-3886. In 2000, three classes of plaintiffs challenged the New York felon-disenfranchisement law, which denies the right to vote in local, state and federal elections to those incarcerated or on parole for felony convictions. The three classes are: (1) “Black and Latino” prisoners currently incarcerated for felony convictions; (2) “Black and Latino” individuals on parole for felonies; and (3) “Black and Latino” individuals in general whose votes are diluted by the disproportionate disenfranchisement of the first two classes. A New York federal court granted the state’s motion for judgment on the pleadings. The class action was consolidated with another case that had been winding its way through the federal courts since 1994 and was already slated for en banc consideration by the 2d Circuit. The 2d Circuit affirmed, holding that Congress neither intended nor understood the Voting Rights Act as encompassing state felon-disenfranchisement laws; that application of the Voting Rights Act to felon-disenfranchisement laws would alter the constitutional balance between the states and the federal government; and that Congress did not indicate that it intended the Voting Rights Act to alter the federal balance in this way. State felon-disenfranchisement laws, applying as they do only to currently incarcerated felons, serve at least three important state interests: (1) the regulation of the franchise; (2) the state’s authority to craft its criminal law; and (3) the regulation of correctional institutions. No lead-paint suit under Section 1983 for tenant Neither the lead-Based Paint Poisoning Prevention Act, the U.S. Housing Act of 1937 nor their attendant regulations confer a personal federal right on individuals that can be enforced in a 42 U.S.C. 1983 suit, the 6th U.S. Circuit Court of Appeals ruled on May 3. Johnson v. City of Detroit, No. 04-1817. Dellita Johnson, a Detroit public housing resident, filed a civil rights suit against the city on behalf of her child for injuries he suffered from exposure to lead-based paint used in the housing units. A Michigan federal district court granted the city’s motion to dismiss. The 6th Circuit affirmed. Section 1983 allows plaintiffs to enforce rights secured by federal law and the Constitution. Statutes that merely benefit potential plaintiffs, without specific “rights-creating” language, do not fall within this umbrella of enforceable rights. Though both of the federal statutes benefit public-housing tenants, they do not include specific language creating individual federal rights enforceable through Section 1983. CONSTITUTIONAL LAW School free speech rule differs from rule at work A federal district court applied the wrong First Amendment standard in granting summary judgment to a school district in a suit against it by students alleging that they were suspended from a team in violation of their constitutional speech rights, the 9th U.S. Circuit Court of Appeals held on May 1. Pinard v. Clatskanie Sch. Dist. 6J, No. 04-35574. Jacob Pinard and other members of the Clatskanie High School boys’ basketball team in Oregon signed a petition calling for their coach to resign due to alleged abusive behavior. After the team members refused to board a team bus for a game they thought the coach was coaching, the school suspended them from the team. Pinard and the other players sued the school district, the coach and others, arguing that the school had retaliated against them for their protected speech in violation of the First Amendment. An Oregon district court granted summary judgment to the school district, holding that there was no constitutional violation because the students’ speech did not involve an issue of public concern. Reversing, the 9th Circuit held that the district court was wrong to grant summary judgment. The court should have applied the U.S. Supreme Court’s standard as articulated in Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 514 (1969), according to which the students’ petition and complaints against the coach were protected speech because they could not reasonably have led school officials to forecast substantial disruption of or material interference with a school activity. However, the circuit court agreed with the district court that it was appropriate to punish the students for refusing to board the bus. That act was not protected by the First Amendment because it substantially disrupted and materially interfered with the operation of the varsity boys’ basketball program. The court said, “Although [the] personal matter/public concern distinction is the appropriate mechanism for determining the parameters of a public employer’s need to regulate the workplace, neither we, the Supreme Court nor any other federal court of appeals has held such a distinction applicable in student speech cases, and we decline to do so here.” Bicycle-handlebar drug evidence is admissible A federal district court erred in suppressing evidence of crack cocaine found by police in a warrantless search of a bicycle’s handlebar because the search and seizure were incident to a lawful arrest, and the handlebar was within the arrestee’s immediate control, the 4th U.S. Circuit Court of Appeals held on May 4. U.S. v. Currence, No. 05-4894. After receiving an informant’s tip that a man on a bicycle was selling drugs, police arrested Kareem Currence, who matched the informant’s description. Police found no contraband when searching Currence, but they arrested him after a warrant check revealed there was an outstanding warrant for his arrest. The police then proceeded to remove the cover to Currence’s handlebar, and discovered crack cocaine. After Currence was indicted for crack cocaine possession and distribution within a school zone, a Virginia federal district court suppressed evidence of the drugs, holding that, though police had the right to search Currence incident to his lawful arrest, they did not have the right to search the handlebar because it was not the equivalent of a container in an automobile. Reversing, the 4th Circuit held that the search of the handlebar was valid because it was within Currence’s immediate control. The court said, “Just as an arrestee’s ability to reach into, for example, a closed drawer or a locked bag makes those items searchable incident to an arrest, Currence’s ability to reach into the easily accessible handlebar likewise makes it searchable.” CRIMINAL PRACTICE OK to review sentences that are within guidelines Unreasonable sentences violate the law and are reviewable even if within the sentencing guidelines, under the U.S. Supreme Court’s 2005 U.S. v. Booker decision, the 10th U.S. Circuit Court of Appeals held on May 3. USA v. Sanchez-Juarez, No. 05-2295. Lorenzo Sanchez-Juarez, a Mexican citizen, was convicted of transporting illegal aliens and deported. After returning to the United States, he was arrested with fraudulent resident alien cards and pleaded guilty to illegal re-entry. He argued that a high sentence would be unreasonable under the Federal Sentencing Guidelines, because of an incongruity between the relatively minor conduct involved in his alien-smuggling conviction and the 16-level increase the guidelines suggest for those who were previously deported for committing an aggravated felony, especially since the usual defendant in such a case has committed crimes of violence or repeated serious drug offenses. A New Mexico federal court applied the 16-level enhancement and sentenced Sanchez-Juarez to 65 months in prison, which was within the guidelines’ range. Sanchez-Juarez appealed. The government asserted that the 10th Circuit lacked jurisdiction to hear the appeal because the sentence fell within the guidelines’ range The 10th Circuit vacated and remanded. The court said that appellate review is permitted if the sentence is “imposed in violation of law.” After Booker, every sentence that a court imposes must reflect its determination of what is reasonable, whether the sentence is within or outside the guidelines’ range. Thus, unreasonable sentences-within or outside the guidelines’ range-are “imposed in violation of law,” and thus reviewable. GOVERNMENT No negligence over failed response to 911 hang-up A special relationship is not created when a member of the public places a 911 call and hangs up prior to receiving an oral assurance that medical aid will be dispatched, the Washington Supreme Court ruled on May 4. Cummins v. Lewis County, No. 76249-0. On Dec. 15, 1997, a county emergency dispatcher received a 911 call. The person at the other end, an adult male, said, “1018 ‘E’ Street, heart attack,” but hung up before the dispatcher could respond. The call appeared to be from a pay phone near the stated address. Because a prank phone call had come from the same pay phone a few minutes earlier and because no one at the “E” street address could be reached by telephone, the dispatcher sent a police officer to investigate. After a boy in the vicinity of the pay phone told the officer that he had placed the 911 call, the officer cleared the call with 911 as a “suspicious circumstance.” The officer went to the “E” Street address, but made no attempt to contact anyone there. A few hours later, Mary Cummins returned home to 1018 “E” Street and found her husband dead on the kitchen floor. Subsequently, the boy admitted to lying about making the phone call. Cummins filed a wrongful death suit against the city and county. The trial court dismissed, holding that she had failed to show that the county or the city owed her husband a duty of care it did not owe to the public generally and that her claims were thereby barred by the public duty doctrine. An intermediate appellate court affirmed. The Washington Supreme Court affirmed. Under the public duty doctrine, no liability is imposed for a public entity’s negligent conduct unless a special relationship exists with an individual. Cummins had failed to establish the existence of an actionable special relationship. The county was merely carrying out responsibilities it generally owed to the public when it fielded Cummins’ 911 call and that no common law duty was owed to Cummins individually or as a member of a particular class under these circumstances. No express assurance of medical assistance was given upon which Cummins could have justifiably relied. LABOR LAW CBA back-to-work rules can supersede FMLA Return-to-work requirements in U.S. Postal Service manuals are deemed incorporated in a collective bargaining agreement and may be stricter than those stated in the Family and Medical Leave Act (FMLA), the 7th U.S. Circuit Court of Appeals held on May 4. Harrell v. U.S. Postal Service, No. 03-4204. Rodney Harrell was a postal service employee. He was represented by the union and covered by a national collective bargaining agreement between his union and the postal service. Harrell became ill and was absent from work for several weeks. The postal service told him that, before he could return to work, he must submit certain health certifications and agree to undergo a medical examination. When Harrell failed to produce the required documents, he was fired. He filed suit alleging violations of the FMLA. The postal service asserted that the conditions it had placed upon Harrell’s return to work were permitted by the national agreement that incorporated by reference to the postal handbooks and manuals governing employees’ leave. An Illinois federal court granted summary judgment to the postal service, holding that the handbooks and manuals are part of the national agreement, and that, because the postal regulations had the force of a valid collective bargaining agreement, those regulations, and not the FMLA’s provisions, controlled Harrell’s right to return to work. The 7th Circuit affirmed, holding that both parties to the national agreement have previously maintained that the postal handbooks and manuals affecting working conditions, including return to work after illness, are incorporated by reference into that agreement. Also, the court said, a collective bargaining agreement may properly impose stricter return-to-work restrictions than those otherwise incorporated into the FMLA. LEGAL PROFESSION Estate representatives can sue estate planners An estate’s personal representative can maintain a legal malpractice claim on behalf of the estate against the decedent’s estate planners, the Texas Supreme Court ruled in a case of first impression on May 5. Belt v. Oppenheimer, No. 04-0681. David Terk hired San Antonio law firm Oppenheimer, Blend, Harrison and Tate to prepare his will. Upon his death, Terk’s daughters, as joint, independent executors of Terk’s estate, sued the law firm, claiming that the firm’s negligent asset-management advice cost the estate more than $1.5 million in tax liability. A Texas trial court granted the firm’s motion for summary judgment on the ground that estate planners do not owe a duty to the personal representatives of a deceased client’s estate. An intermediate appellate court affirmed. The Texas Supreme Court reversed. Legal malpractice claims alleging pure economic loss survive in favor of a deceased client’s estate. Though Texas law prevents a beneficiary from suing an estate planner for harm the beneficiary suffers, it does not prevent the estate’s personal representatives from bringing a suit on behalf of the estate against the estate planners. The temptation to bring such claims will likely be tempered by the fact that a personal representative who mismanages the performance of his or her duties may be removed from the position. TORTS Employer not vicariously liable if worker not liable Despite any reservation of rights in a settlement agreement, the release of a negligent party in a case bars any recovery against his employer under a vicarious liability theory, the Mississippi Supreme Court ruled on May 4. J & J Timber Co. v. Broome, No. 2004-IA-01914-SCT. Brent Galatas worked for Jim Smith Trucking as a hauling truck driver. Smith contracted with J & J Timber Co. to haul its logs. On Nov. 27, 1999, while Galatas was driving back from a timber yard after delivering J & J Timber’s logs, he hit a bus carrying a family of gospel singers, killing two of them. The wrongful death beneficiaries of the victims, including Rembert J. Broome, settled with Jim Smith, the owner of Jim Smith Trucking, and Galatas before any lawsuit was filed. Broome brought a wrongful death action against J & J Timber, asserting vicarious liability for the negligence of its employee. The trial jury returned a verdict in favor of J & J Timber. However, the court ordered a new trial for Broome, saying that it had misinstructed the jury. Reversing, the Mississippi Supreme Court explained that when a claim against an employer is derived solely from a negligence claim against an employee, settlement with the employee extinguishes the vicarious liability claim, absent any allegation of independent negligence by the employer.

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