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• ATTORNEY FEES Preliminary injunction suffices for attorney fees A Texas trial judge correctly awarded attorney fees to plaintiffs as the prevailing party in a constitutional challenge to a city ordinance, even though they only won a preliminary injunction before the case was dismissed, the 5th U.S. Circuit Court of Appeals held on March 10 in a first impression case. Dearmore v. City of Garland, No. 06-11007. Property owner Roy Dearmore was lead plaintiff in a suit challenging the constitutionality of Garland, Texas, City Ordinance No. 5895, which authorized warrantless searches of unoccupied private homes. The complaint alleged that the inspection procedures violated the Fourth Amendment of the U.S. Constitution, and sought a declaratory judgment, injunctive relief and attorney fees and costs. A Texas federal trial judge issued a preliminary injunction blocking enforcement of the ordinance, which required a property owner who rents or leases a single-family dwelling to allow an inspection of the property as a condition of issuing a rental permit or pay a fine. After the judge’s ruling, the city amended the ordinance, removing the provisions at issue. The city then filed a motion to dismiss the suit. The judge dismissed with prejudice, and awarded attorney fees to the plaintiffs as the prevailing party. The 11th Circuit affirmed. The first impression question is whether a plaintiff who obtains a preliminary injunction counts as the prevailing party if a defendant subsequently moots the case in direct response to the preliminary injunction. The circuit court said that Dearmore was the prevailing party. First, Dearmore had won a preliminary injunction. Second, by granting the injunction, the court had assessed that he would succeed on his Fourth Amendment claim. Third, the grant of the injunction forced the city to amend the offending ordinance.   Full text of the decision • CIVIL PRACTICE Appeals court majority is needed to nix trial court An en banc appellate court judgment that fails to issue a majority decree regarding the amount of damages has the effect of affirming the trial court award, the Louisiana Supreme Court ruled on March 14. Parfait v. Transocean Offshore Inc., nos. 2007-C-1915 and 2007-C-1998. The Merchant Marine Act, 46 U.S.C. 688, the so-called Jones Act, allows injured sailors to obtain damages from their employers for the negligence of the shipowner, the captain or fellow members of the crew. In a Jones Act personal injury case, a Louisiana state jury awarded a plaintiff damages of $1.7 million. A five-judge state appellate court panel could not reach a majority decision on all issues. The state Supreme Court remanded for en banc consideration. The en banc court was also unable to render a majority decision on all issues. The state high court again remanded and ordered the lower court to render a majority decision on each issue. Misconstruing the higher court’s order as an order for the judges to change their opinions for the sake of a majority vote, the appeals court left its opinion as originally written. La. Const. art. V, � 8(B) states that a “majority of the judges sitting in a case must concur to render judgment.” The Constitution also states, “in civil matters only, when a judgment of a district court is to be modified or reversed and one judge dissents, the case shall be reargued before a panel of at least five judges prior to rendition of judgment, and a majority must concur to render judgment.” A jury’s damages award may be disturbed only if there has been a clear abuse of discretion, the Supreme Court said. Before a trial court judgment can be reversed or modified, a majority of an appellate court must be in agreement, which didn’t happen here, the court said. • COMMUNICATION Toll-free number deal didn’t breach FCC rule An agreement to route a toll-free “vanity” number to another company for a set fee is not an impermissible “sale” of the number under Federal Communications Commission regulations, the 3d U.S. Circuit Court of Appeals ruled on March 11. The Business Edge Group Inc. v. Champion Mortgage Co. Inc., No. 07-1059. The Business Edge Group Inc. acquired the toll-free telephone number (800) 242-6740, which transformed into the vanity number of “1-800-Champi0[n].” Callers were routed to an unnamed mortgage company. Business Edge informed Champion Mortgage Co. Inc. it had the number, which was similar to Champion’s toll-free number: (800) 242-6746, or 1-800-Champio[n]. Business Edge rejected Champion’s offer to buy the number for $60,000, instead insisting on an agreement, according to which Business Edge would route misdialed calls to Champion for 10 cents a minute, plus $3 for each unique customer. After a trial period, the parties modified the agreement so that Champion would pay Business Edge $25,000 per month for five years. After three years, it informed Business Edge that the agreement violated a Federal Communications Commission regulation, 47 C.F.R. 52.107, prohibiting the brokering, “hoarding” and sale of toll-free numbers. Champion sued Business Edge in a New Jersey federal court. The court found that Business Edge had sold Champion the number, and was thus in violation of Rule 52.107. The 3d Circuit reversed and remanded, finding that Business Edge had not sold the number. Since phone number subscribers do not actually own the numbers, they can only sell the interest they have in them. Under the agreement, Business Edge retained its interest in the number and continued to pay the toll charges itself. And because it did not sell the number, Business Edge did not impermissibly broker the number, either. Finally, though Business Edge “violated the spirit” of the regulation, more evidence needs to be offered on remand to see if Business Edge has hoarded more numbers than it intends to ever use. • CONSTITUTIONAL LAW Library may sometimes test employees for drugs A public library’s policy of drug testing all prospective employees was unconstitutional as applied to a part-time page, but other employees can be tested if a special need for it is shown, the 9th U.S. Circuit Court of Appeals held on March 13. Lanier v. City of Woodburn, No. 06-35262. Woodburn Library, a public library in the city of Woodburn, Ore., gave Janet Lanier a conditional offer of employment as a page, shelving books and manning the desk in the youth section of the library. The offer was conditioned on Lanier’s successful completion of a background check and a drug screening, a library requirement for all prospective employees regardless of any suspicion of drug use. Lanier refused to undergo the drug screening, and the library rescinded the offer of employment. Lanier sued in an Oregon federal court, arguing that the policy violates the Fourth Amendment to the U.S. Constitution and the Oregon Constitution. The court granted summary judgment to Lanier and issued a declaratory judgment that the policy was unconstitutional “to the extent the policy is warrantless, suspicionless, and is unsupported by a special need that outweighs reasonable expectations of privacy. Affirming, the 9th Circuit held that the policy was unconstitutional. However, the court rejected Lanier’s argument that the policy was unconstitutional as applied to any employee. Holding that the library had to establish a special need to test, the court said, “Woodburn posits that it has a substantial and important interest in screening library pages for three reasons: drug abuse is one of the most serious problems confronting society today, drug use has an adverse impact on job performance, and children must be protected from those who use drugs or could influence children to use them. No doubt these problems are worthy of concern, but there is scant, if any, indication that on account of them, the City has ‘special needs’ of sufficient weight to justify an exception to the Fourth Amendment’s requirement of individualized suspicion.” • CRIMINAL PRACTICE Not told of penalty, pro se defendant wins new trial Despite a criminal defendant’s insistence on representing himself and a trial court’s admonition against it, the trial court’s failure to advise the defendant what potential sentence he could face constituted ground for a new trial, the Connecticut Supreme Court held on March 25. State of Connecticut v. T.R.D., No. SC17865. T.R.D., a convicted sex offender, was required to register and keep authorities apprised of his address. When he allegedly failed to do so, he was charged with failure to register in violation of Conn. Gen. Stat. � 54-250, known commonly as Megan’s Law. Dissatisfied with the performance of his court-appointed attorney, T.R.D. sought to represent himself or have another attorney appointed for him. The trial court refused to provide substitute counsel, and T.R.D. acted pro se. Although the court canvassed T.R.D., it failed to inform him that the sentence upon conviction could be from one to five years in prison. Following conviction, the court sentenced T.R.D. to three years in prison. T.R.D. appealed, arguing that his waiver of his Sixth Amendment right to counsel was not knowing and intelligent due to the court’s failure to advise him as to the possible range of sentences. Reversing, the Connecticut Supreme Court held that the trial court’s failure to include the possible range of sentences in its canvassing of T.R.D. constituted a ground for a new trial. Citing its earlier decision in State v. Diaz, 878 A.2d 1078 (2005), the court said, “In the present case, as in Diaz, there is simply no evidence . . . in the record from which we could infer that the defendant had any meaningful appreciation of the period of incarceration he faced if convicted of the charges he faced. In such circumstances, it cannot be said that the defendant ‘received a realistic picture from [the court] regarding the magnitude of his decision [to proceed to trial without counsel].’ ” Closing argument waiver is ineffective counsel A defense lawyer’s waiver of closing argument during the sentencing phase of a death penalty trial counts as ineffective assistance of counsel and suffices for the granting of a habeas petition, the 11th U.S. Circuit Court of Appeals held on March 11. Lawhorn v. Allen, No. 04-11711. An Alabama state jury found James Charles Lawhorn guilty of the murder- for-hire shooting death of William Clarence Berry and recommended the death sentence. After exhausting state court appeals, Lawhorn filed a federal habeas corpus petition. An Alabama federal judge granted Lawhorn’s petition, holding that his confession several days after his arrest should have been suppressed and that Hank Fannin, his defense lawyer, was ineffective in failing to present a closing argument. The 11th Circuit reversed the suppression ruling, but affirmed on the deficiency of the defense attorney. The court said that the decision not to give a closing argument was “based on a gross misunderstanding” of Alabama criminal procedure. “Because one of the most important functions of the capital sentencing process is the opportunity to humanize the defendant, the importance of the defense’s closing argument cannot, therefore, be overstated,” the court said. Dual sovereignty applies to right to counsel Dual sovereignty � the common law doctrine that a federal crime and a state crime are separate offenses even if otherwise identical because they are violations of the laws of separate sovereigns � applies to the Sixth Amendment right to counsel, the 11th U.S. Circuit Court of Appeals held on March 13 in a first impression case. U.S. v. Burgest, No. 06-11351. The state of Florida had charged Earl Burgest with cocaine possession. In the state proceedings, Burgest was represented by counsel. He was subsequently interrogated by federal agents. During interrogation, he waived his Miranda rights and made self-incriminating statements. A federal grand jury indicted him on two counts of possession of crack cocaine with intent to distribute. A Florida federal trial judge denied Burgest’s motion to suppress his statement. The judge held that Burgest committed two distinct offenses under state and federal law, and that his right to counsel did not attach to the federal charges at the time federal agents questioned him. He was convicted and sentenced to 30 years in prison. Affirming, the 11th Circuit said there was “no question” that Burgest’s Sixth Amendment right to counsel had attached to the state drug charge at the time the federal agents interviewed him. But invoking his right to counsel for the state charges did not also attach to the yet-uncharged federal drug offenses. “We hold that where conduct violates laws of separate sovereigns, the offenses are distinct for purposes of the Sixth Amendment right to counsel,” the court said. • MEDIA LAW Craigslist not liable for discriminatory postings Craigslist Inc. is not liable for hosting discriminatory real estate postings, the 7th U.S. Circuit Court of Appeals held on March 14. Chicago Lawyers’ Committee for Civil Rights Under Law Inc. v. Craigslist Inc., No. 07-1101. Craigslist, the popular online classifieds site, includes notices of properties available for sale or rent. The Chicago Lawyers’ Committee for Civil Rights Under Law sued Craigslist Inc. for carrying notices that stipulate “No minorities” and “No children.” The committee claimed that Craigslist was in violation of 42 U.S.C. 3604(c), which makes it unlawful to “make, print, or publish, or cause to be made, printed, or published” any real estate notice that indicates any preference based on race, color, religion, sex, or national origin. An Illinois federal court ruled that there is no liability if a Web host or Internet service provider refrains from filtering content on its sites. The 7th Circuit affirmed. The committee claimed that Craigslist can be liable as one who “cause[d] to be made, printed, or published any [discriminatory] notice, statement, or advertisement.” But the court said that this is a misinterpretation of the word “cause.” An interactive computer service “causes” postings only in the sense of providing a place where people can post. Causation, as required by Section 3604(c), refers to causing a particular statement to be made. Nothing in the service Craigslist offers induces anyone to post any particular listing or express a preference for discrimination.

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