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CIVIL PRACTICE Class certification needs state law variation study A trial court erred in certifying a class action by Cadillac DeVille owners against General Motors because the plaintiffs had failed to present an extensive analysis of the impact state law variation would have on their claims, the 5th U.S. Circuit Court of Appeals held on April 10. Cole v. General Motors Corp., No. 05-31070. In September 2000, General Motors sent a recall notice to owners and lessees of the 1998 and 1999 Cadillac DeVille, identifying a defect in the side-impact air bags’ sensor modules, which led to inadvertent deployment of air bags. GM further explained that it was working to obtain replacement side-impact sensing modules and that it would contact DeVille owners again when these became available so that owners could take their DeVilles to a dealership for the installation of new devices. The plaintiffs, who are also the class representatives, received the recall notice, but they weren’t among those whose DeVille air bags deployed inadvertently. They filed a class action alleging that the DeVilles they bought were not the ones promised. They sought class certification in a Louisiana federal court. The court-appointed special master recommended class certification, which the court accepted. The 5th Circuit reversed. The plaintiffs had sought certification as a Fed. R. Civ. P. 23(b)(3) class, namely, one for which “questions of law or fact common to [its] members . . . predominate over any questions affecting only individual members.” Thus, if different states’ laws apply and these laws vary, common issues of law and fact might not predominate among class members. It is incumbent upon the party seeking certification to provide an extensive analysis of state law variations to show that these pose no insuperable obstacles, the 5th Circuit said. Here, the plaintiffs’ assertion that the applicable laws of 51 jurisdictions are “virtually the same” isn’t based on any “extensive analysis” of variations in state laws concerning their claims, but on textual similarities of each jurisdiction’s applicable laws and on the general availability of legal protection for express and implied warranties. However, this glosses over the glaring substantive legal conflicts among the applicable laws of each jurisdiction that would require, among other things, multiple versions of jury instructions. Full text of the decision CIVIL RIGHTS Different admission rules must serve valid interest A school activities’ association may not apply different membership application rules to public and nonpublic schools, if the differences are not rationally related to legitimate purposes, the 10th U.S. Circuit Court of Appeals held on April 9. Christian Heritage Academy v. Oklahoma Secondary School Activities Association, No. 04-6342. The Oklahoma Secondary School Activity Association (OSSAA) regulates interscholastic activities, including determining athletic divisions and holding athletic championships. Christian Heritage Academy, a private religious school, applied for membership in OSSAA but was denied by a vote of OSSAA member schools. The OSSAA has different application procedures for public and nonpublic schools, including the majority-vote requirement. Christian Heritage filed suit under 42 U.S.C. 1983, alleging that OSSAA’s membership requirements for nonpublic schools violated the equal protection clause of the U.S. Constitution. An Oklahoma federal court granted summary judgment to OSSAA. The 10th Circuit reversed and remanded. The court said that OSSAA identified legitimate purposes for distinguishing between public and nonpublic schools in regard to their admission, including the fact that nonpublic schools must declare a geographic area for eligibility purposes. However, the requirement that nonpublic schools obtain majority approval in order to be admitted is not rationally related to any legitimate purpose. Here, “OSSAA’s refusal to admit Christian Heritage was motivated in large part by a dislike for nonpublic schools generally and Christian Heritage in particular.” Such a dislike, the court said, “is not a legitimate state interest.” CRIMINAL PRACTICE Accessory before fact not eligible for death penalty A person charged with being an accessory before the fact in a murder is not eligible for the death penalty, the South Carolina Supreme Court ruled on April 9. State v. Bixby, No. 26308. Rita Bixby was charged with two counts of being an accessory before the fact in the murder of a county deputy sheriff and a state constable by her husband and son. The state served notice that it intended to seek the death penalty against Bixby. State law says that someone convicted as an accessory before the fact must be punished in the same manner as the principal felon, yet the death penalty applies only to someone who has been convicted of murder. The trial court found Bixby to be ineligible for the death penalty as an accessory before the fact. The South Carolina Supreme Court affirmed. The plain language of the capital murder statute requires conviction or adjudication of guilt on a murder charge. Plus, the Legislature has not shown intent to make the crime of accessory before the fact death-worthy. The dissent said that someone who counsels, hires or otherwise procures a felony to be committed can be charged either as a principal or as an accessory before the fact, so whether a defendant who counseled, hired, or otherwise procured a murder is eligible for the death penalty ultimately comes down to whether the state decides to prosecute the defendant as an accessory before the fact to murder or for the murder itself. The Legislature “certainly did not intend such an illogical result.” Nonviolent escape is held to be violent felony Despite being designated specifically as a crime without violence, a conviction for “escape without force or violence” is a violent felony for sentencing purposes under the federal Armed Career Criminal Act, the 4th U.S. Circuit Court of Appeals held on April 13. U.S. v. Mathias, No. 06-4109. Linwood Mathias pleaded guilty in a North Carolina federal court to being a felon in possession of firearms for his involvement in the robbery of a payday loan company. At sentencing, the court held that Mathias’ three prior convictions � two for burglary and one for felony escape � were violent felonies under the Armed Career Criminal Act (ACCA). The court designated Mathias an armed career criminal and sentenced him to the statutory minimum of 15 years’ imprisonment. Mathias appealed, arguing that, because there was no violence involved in his case � he simply walked away from a work-release program � that conviction should not count as a violent felony. Affirming, the 4th Circuit held that, despite Mathias’ conviction being for “escape without force or violence,” the conviction was nevertheless a violent felony under ACCA because of the inherently dangerous nature of prison escape. The court said, “[T]he fact that Mathias’ conviction is labeled ‘nonviolent’ by state law is beside the point. The point is simply that Congress, in enacting the ACCA, spoke in terms of risk, not result. Under the Armed Career Criminal Act, ‘it is not necessary that the defendant’s specific conduct actually resulted in physical injury to another.’ To the contrary, we examine only whether the nature of the offense presents ‘a serious potential risk of physical injury to another.’ ” Common issues of fact is basis of double jeopardy Under the double jeopardy clause of the Fifth Amendment to the U.S. Constitution, an acquittal on an attempted drug offense charge requires the dismissal of a drug conspiracy charge on which the jury had been unable to reach a verdict, the 11th U.S. Circuit Court of Appeals held on April 12. U.S. v. Ohayon, No. 05-17045. Binyamin Ohayon, an Israeli citizen in the United States, was tried on two federal drug charges: attempt to possess with intent to distribute and conspiracy to possess with intent to distribute 100,000 ecstasy tablets. Ohayon was arrested in March 2005 after removing one of three drug-filled duffel bags from an Atlanta hotel room occupied by a confidential informant, then placing the bag in the trunk of a car. At trial, the sole disputed fact was whether Ohayon knew that the bags contained drugs. Ohayon said he believed the bags contained the personal effects of a man he had met in Canada. A Georgia federal jury acquitted Ohayon of the attempt-to-possess count but was unable to reach a unanimous verdict on the conspiracy count. The government sought to retry Ohayon on the conspiracy count, but the district court dismissed the charge, concluding that Ohayon’s acquittal collaterally estopped the government from retrying him on the conspiracy charge. The 11th Circuit affirmed, holding that because the jury found there was reasonable doubt as to whether Ohayon knew he was acquiring drugs, and because a conviction for conspiracy to possess with intent to distribute would require the government to prove beyond a reasonable doubt that Ohayon knew he was acquiring drugs, the government is collaterally estopped from retrying Ohayon. The court said, “When the jury found reasonable doubt that Ohayon was aware of the contents of the bags, it resolved in his favor a fact that is an essential element of the charge of conspiracy to possess with intent to distribute.” LEGAL PROFESSION Fees not available under Idaho Human Rights Act An award of attorney fees is not an available remedy for a prevailing party in litigation under the Idaho Human Rights Act, the Idaho Supreme Court ruled on April 12 in a case of first impression. Stout v. Key Training Corp., No. 32881. Anissa Stout sued her former employer, Key Training Corp., alleging that Key violated the Idaho Human Rights Act by discriminating against her based on gender and pregnancy. The jury awarded Stout $50,927 in damages, and Stout moved for an award of attorney fees. The trial court denied Stout’s motion. Affirming, the Idaho Supreme Court held that attorney fees are not available under the Idaho Human Rights Act because the Legislature chose not to include attorney fees in its remedy provision. The court said that “No language in the Idaho Human Rights Act indicates that the legislature contemplated remedies which go toward the legal expense of enforcing the act. As demonstrated by the language in the Idaho Consumer Protection Act, when the legislature intends to provide for an award of attorney fees, it does so.”

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