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CIVIL PRACTICE Trial court has no role in decision to grant review A judge wrongly vacated and re-entered an order to help plaintiffs circumvent a deadline for their petition seeking interlocutory review of a denial of a class action certification, the 11th U.S. Circuit Court of Appeals held on July 2 in a case of first impression. Jenkins v. BellSouth Corp., No. 07-90008. Employees and former employees of BellSouth Corp. filed a putative class action against BellSouth alleging racial discrimination in pay and promotions. An Alabama federal judge denied class action certification. The employees petitioned the 11th Circuit to grant an interlocutory appeal under Fed. R. Civ. P. 23(f), under which appellate courts may grant a discretionary appeal from an order granting or denying class certification if application is made within 10 days of entry of the order. The plaintiffs filed their petition on Nov. 24, two days after the deadline. The 11th Circuit dismissed it as untimely. The plaintiffs asked the trial judge to vacate and re-enter its order denying their motion to reconsider class certification, alleging “excusable neglect” for missing the deadline. They argued that a courier service delivered the petition late though the plaintiffs hired the service to deliver the papers on the due date. The trial judge granted the plaintiffs’ motion, vacated the order and reissued it. The plaintiffs then filed a second petition with the 11th Circuit seeking interlocutory review. In dismissing the plaintiffs’ petition, the 11th Circuit said that a district court lacks the authority to circumvent the deadline because it plays no formal role in the decision whether to permit the appeal. That decision is in the sole discretion of the appellate court. “The court of appeals is given unfettered discretion whether to permit the appeal, akin to the discretion exercised by the Supreme Court in acting on a petition for certiorari,” the court said.   Full text of the decision Court order for new trial requires appellate review A trial court’s error in its order granting a new trial � failing to state its reasons for granting the new trial based on juror misconduct � required independent appellate review, the California Supreme Court held on July 2. Oakland Raiders v. National Football League, No. S132814. The Oakland Raiders, a member of the National Football League, sued the NFL, alleging it had acted tortiously in its negotiations over the building of a new stadium in Los Angeles, the team’s former home. The trial jury found in favor of the NFL. The Raiders appealed, arguing it was denied a fair trial due to the misconduct of two jurors. The court granted the Raiders’ motion. An intermediate appellate court reversed, holding that, because the trial court had failed to state the reasons for granting the new trial � in addition to stating simply that it was due to juror misconduct � the order was subject to independent appellate review rather than a review for abuse of discretion. The court ordered the trial court to enter judgment for the NFL. Affirming, the California Supreme Court held that independent appellate review is the correct standard for cases in which a trial court fails to state its reasons for granting a new trial. The court said, “The reviewing court should not, in a situation such as that presented here, defer to the trial court’s resolution of conflicts in the evidence, or draw all inferences favorably to the trial court’s decision, because in the absence of a statement of reasons, the record does not show whether the trial court resolved those conflicts or drew those inferences.” • CONSTITUTIONAL LAW Hate-crime law applies to speech that threatens In “selecting” a victim under the Delaware hate-crime statute, the speaker must both select the words and the person at whom those words will be directed, the Delaware Supreme Court ruled on July 2 on an issue of first impression. Andrews v. State, No. 408, 2006. Joshua Andrews, developmentally delayed and with a history of using verbal abuse against others, was a student in an alternative education program. On one occasion, Andrews called Walter Edmunds, an African-American teacher, racially charged names. On another occasion, Andrews repeatedly called Edmunds a “nigger” and said that he had cousins in the Ku Klux Klan, that he would hang Edmunds from a tree and that he would use a shotgun to “blow [his] brains out.” Edmunds contacted police, who eventually arrested Andrews for “terroristic threatening” and commission of a hate crime. A state trial court convicted Andrews. On appeal, Andrews argued that the trial court erred when it held that the First Amendment did not protect his speech because the “true threat” doctrine applies only to political speech. He also argued that he did not “select” Edmunds because of his race, an element of the hate-crime statute. The Delaware Supreme Court affirmed. The Delaware statute applies to speech made with the subjective intent to threaten, regardless of whether Andrews intended to carry out his threat. In this case, Andrews directed a “true threat” to Edmunds with the intent to place Edmunds in fear of bodily harm or death. Furthermore, Andrews had “selected” Edmunds because of his race because he had both selected the words he would use and the person at whom he directed those words. Billboard restriction is no First Amendment breach A municipality’s content-neutral ordinance restricting billboards does not violate the First Amendment, the 4th U.S. Circuit Court of Appeals held on July 6. Covenant Media of S.C. LLP v. City of North Charleston, No. 06-1894. Covenant Media of South Carolina LLP filed multiple permit applications with the city of North Charleston, S.C., seeking permission to construct billboards. After the city failed to issue a decision on the applications, Covenant sued the city under 42 U.S.C. 1983, arguing that the city had violated its First Amendment rights by failing to issue decisions on the applications in a timely manner. A South Carolina federal court granted summary judgment to the city. Affirming, the 4th Circuit held that, because a revised city ordinance was content-neutral, the city had not violated Covenant’s First Amendment rights by failing to act on the applications in a timely manner. The court said, “[T]he City’s purpose for the Sign Regulation was to address problems caused by signs wholly apart from any message conveyed. Thus, because North Charleston’s Sign Regulation ‘d[id] not facially distinguish between . . . messages based on content and because there is no evidence of a content-based purpose,’ we conclude that the City’s Sign Regulation was a content-neutral regulation. “ Instant-message icon use is not protected speech A student’s first amendment rights were not violated when he was suspended for using an icon on his Internet instant message buddy list depicting the shooting death of a named teacher, the 2d U.S. Circuit Court of Appeals ruled on July 5. Wisniewski v. Board of Education of Weedsport Central School District, No. 06-3394. Aaron Wisniewski liked to chat with his “buddies” using AOL Instant Messenger software on his parents’ home computer. The icon he used to identify himself depicted a hand-drawn pistol shooting at a person’s head, captioned, “Kill Mr. VanderMolen.” Philip VanderMolen was Aaron’s English teacher. He learned of the icon’s use and informed the school principal, who informed the superintendent, the police and Aaron’s parents. The school suspended Aaron for five days, though the police determined that Aaron did not pose any real threat to VanderMolen. Nonetheless, the superintendent recommended a semester-long suspension, concluding that even though the icon was used outside of school, it should be viewed as a threat that disrupts school operations by requiring special attention from school officials. Aaron’s parents sued the school district under 42 U.S.C. 1983, claiming Aaron’s suspension was retaliation for his use of First Amendment-protected speech. A New York federal court granted summary judgment to the school district. The 2d Circuit affirmed. Even if Aaron’s use of the icon could be viewed as an expression of opinion within the meaning of the U.S. Supreme Court’s 1969 school-speech case, Tinker v. Des Moines Independent Community School District, it crossed the boundary of protected speech and constituted student conduct posing a reasonably foreseeable risk that it would come to school authorities’ attention and “materially and substantially disrupt the work and discipline of the school.” • DAMAGES Interest can’t accrue until award is cut to judgment The prevailing party in an arbitration isn’t entitled to prejudgment interest from the time of the arbitration award to the date of judgment, the Washington Supreme Court held on July 6. Dep’t of Corrections v. Fluor Daniel Inc., No. 78290-3. The State of Washington Department of Corrections and Fluor Daniel Inc. were involved in litigation involving a contract to build a prison. Prior to trial, the parties agreed to resolve their dispute through binding arbitration. The arbitrator ruled in favor of Fluor Daniel, awarding it $5,997,645. Fluor Daniel reduced the award to judgment 21 days later. The trial court granted Fluor Daniel’s request for prejudgment interest from the date of the arbitration award until judgment, awarding $43,380.22. An intermediate appellate court reversed. The Washington Supreme Court affirmed. A party is only entitled to prejudgment interest for liquidated damages, or damages that can be calculated without the use of discretion. Despite the binding nature of the arbitration in this case, the parties did not contract to remove the trial court’s power to make modifications to the award under former Wash. Rev. Code � 7.04.170. Interest did not begin to accrue until the award was reduced to judgment. • LANDLORD/TENANT LAW Acceptance of federal subsidy is term of a lease A landlord’s decision to accept federal “Section 8″ rent-subsidy payments is a “term and condition” of the lease that must be continued with subsequent lease renewals, the New York Court of Appeals ruled on July 2. Rosario v. Diagonal Realty LLC, No. 95. For most of the 30 years Sonia Rosario rented a rent-stabilized apartment from Diagonal Realty LLC, the landlord accepted Section 8 payment vouchers Rosario obtained through a New York City Housing Authority program. The Section 8 system is a federal program that provides housing assistance to eligible low-income families by giving subsidies to landlords who rent apartments to them. In 2003, Diagonal told the authority it no longer wanted to accept Section 8 vouchers from certain tenants, including Rosario, and began eviction proceedings against them for nonpayment of rent. The tenants sued for a declaration that Diagonal couldn’t opt out of the Section 8 program and that it was obligated to continue accepting the rent subsidies. The trial court ruled for the tenants, and an intermediate appellate court affirmed. The New York Court of Appeals, the state’s highest court, affirmed. The New York Rent Stabilization Code says that when Section 8 payments are accepted, the terms are set forth in a “tenancy addendum,” the wording of which is prescribed by the U.S. Department of Housing and Urban Development. By requiring the tenancy addendum, the code makes acceptance of the subsidies a term of the lease. Consequently, the obligation to accept the vouchers must continue in a renewal lease. This is true even if a tenant was not eligible for Section 8 subsidies when he or she signed the first lease. • LEGAL PROFESSION Legal malpractice claims not subject to assignment A mortgagee that obtained its rights by assignment did not have standing to sue for legal malpractice in a foreclosure action occurring before it became an assignee, the Florida Supreme Court held on July 5. Law Office of David J. Stern v. Security Nat’l Servicing Co., No. SC06-361. UMLIC-SIX Corp. held a mortgage on a piece of property and filed a foreclosure action in 1997. The mortgage was sold multiple times, and Security National Servicing Co. eventually became the assignee. The Law Office of David J. Stern represented UMLIC-SIX in the foreclosure and continued representing the successive mortgagees, including Security National. The Stern firm filed two foreclosure actions. Through alleged legal malpractice, one was dismissed and the other resulted in summary judgment for the opposing party. Security National sued Stern for legal malpractice, but a trial court ruled for Stern, holding that Security National had no standing at the time the cause of action accrued. An intermediate appellate court reversed, holding that “the malpractice action was transferred incident to the transfer of the note and mortgage.” Reversing, the Florida Supreme Court held that Security National does not have standing to bring an action against Stern for legal malpractice either through an attorney-client relationship or by general assignment. Whereas the assignment of a mortgage conveys to the assignee the rights of the assignor under the mortgage, such an assignment does not implicitly assign the attorney-client relationship between the assignor and his attorney. The basis of a malpractice suit is a breach of duty in the personal relationship between an attorney and client. • WORKERS’ COMPENSATION Retaliatory demotion for filing claim prohibited An employer can’t demote an employee for filing a workers’ compensation claim, the Nebraska Supreme Court held on July 6. Trosper v. Bag ‘N Save, No. S-05-889. Kimberlee Trosper, a deli manager at Bag ‘N Save, was injured at work and filed a workers’ compensation claim. Her employer demoted her to the position of deli clerk, with a corresponding salary decrease from $30,100 to $22,500. Trosper sued for retaliatory demotion. Bag ‘N Save moved to dismiss for failure to state a claim upon which relief could be granted. The trial court dismissed. Reversing and remanding, the Nebraska Supreme Court said that a cause of action existed. The public policy behind the recognized exception to at-will employment for retaliatory discharge resulting from the filing a workers’ compensation claim applied to retaliatory demotions as well. Allowing such demotions would adversely affect an employee’s exercise of rights under the workers’ compensation laws and frustrate the duties behind those laws to protect injured workers.

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