Dear House Judiciary Committee: In Questioning William Barr, Employ the Ethics Complaint That 27 Distinguished DC Lawyers Filed Wednesday

FREDERICK BARON, DENNIS AFTERGUT, AUSTIN SARAT

Frederick Baron, former associate deputy attorney general and director of the Executive Office for National Security in the Department of Justice, Dennis Aftergut, a former federal prosecutor, and Austin Sarat, Associate Provost and Associate Dean of the Faculty and William Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst College, call upon the House Judiciary Committee to carefully read the ethics complaint by 27 distinguished DC lawyers against William Barr before questioning him today, July 28, 2020.

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Environment Texas Citizen Lobby, Inc. v. ExxonMobil Corp.

Court: US Court of Appeals for the Fifth Circuit

Docket: 17-20545

Opinion Date: July 30, 2020

Judge: Gregg Costa

Areas of Law: Civil Procedure, Constitutional Law, Energy, Oil & Gas Law, Environmental Law

Plaintiffs filed a citizen suit against Exxon, seeking to recover from more than 16,000 Clean Air Act violations arising from the Baytown, Texas complex. The Fifth Circuit held that Clean Air Act plaintiffs must prove standing for each violation in support of their claims. The court held that the evidence supports the district court's findings of injury, traceability, and redressability for a number of the violations. However, a limited remand is needed for the district court to determine what other violations could have contributed to plaintiffs' members' injuries and then to tabulate its findings. The court noted that it does not require line-by-line findings, but that the district court may group violations. Furthermore, plaintiffs have standing for at least some of the violations that Exxon asserts affirmative defenses against. The court remanded for findings on whether Exxon proved its Act of God defense for the relatively small number of violations occurring during Hurricane Ike. The court affirmed the district court's rejection of Exxon's Rule 52(b) motion, because Exxon failed to meet its burden in supporting its no-fault defenses by failing to identify evidence establishing that it met the relevant criteria for each individual emissions event. Because the court remanded for the district court to determine the number of violations for which plaintiffs have standing, as well as whether Exxon proved its Act of God defense for any violations, the court will also have to reassess the penalties.

United States v. Doe Co.

Court: US Court of Appeals for the Ninth Circuit

Dockets: 19-10187, 19-10261

Opinion Date: July 27, 2020

Judge: William A. Fletcher

Areas of Law: Business Law, Civil Procedure

This case arose from a federal grand jury investigation of the acquisition of one company by another company. The grand jury issued two indictments and subpoenas to a third company, Doe Company ("the Company"), and to Pat Roe, a former officer at the acquired company and a current partner at the Company. The Company appealed the district court's denial of the Company's motion to quash and order of compliance by both the Company and by Pat Roe. After the Company declined to produce the documents, the district court held the Company in contempt. The Ninth Circuit held that it lacked appellate jurisdiction to review the district court's enforcement order directed to Roe. The panel clarified under Perlman v. United States, 247 U.S. 7 (1918), that in seeking interlocutory review of a court order enforcing a grand jury subpoena, an appellant must assert a claim of evidentiary privilege or some other legal claim specifically protecting against disclosure to the grand jury. Because the Company makes no such claim, the panel held that it did not have jurisdiction under Perlman and dismissed in part. After determining that it had jurisdiction to review the district court's enforcement orders directed to the Company and holding the Company in contempt, the panel held that, taken together, the district court's findings adequately support its determination that it had in personam jurisdiction over the Company. Furthermore, service of process on the Company was proper where it was fair, reasonable, and just to imply the authority of the General Counsel to receive service on behalf of the Company. Accordingly, the panel affirmed in part.

Bunn v. Perdue

Court: US Court of Appeals for the Tenth Circuit

Docket: 19-2138

Opinion Date: July 28, 2020

Judge: Scott Milne Matheson, Jr.

Areas of Law: Civil Procedure, Civil Rights, Government & Administrative Law, Labor & Employment Law

In January 2011, plaintiff-appellant Virgin Bunn was hired for a one-year probationary period as a human resources assistant at the United States Forest Service’s (“USFS”) Albuquerque Service Center. Ten months into the job, Bunn's supervisor became concerned about Bunn's job performance. After his supervisor asked a colleague to oversee Bunn’s work, Bunn complained to his supervisor about the colleague’s comments to him. Bunn later contacted USFS’s Equal Employment Opportunity (“EEO”) Counselor Office about these comments. On January 6, 2012, Bunn was fired. Bunn thereafter filed an EEO complaint with the United States Equal Employment Opportunity Commission (“EEOC”) alleging harassment, a hostile work environment, and retaliation. An administrative law judge dismissed the suit, granting summary judgment to the agency on all claims. The USDA’s Office of Adjudication issued a final order implementing the EEOC’s decision. Bunn appealed. The Office of Federal Operations affirmed the USDA’s final decision. After its review of the matter, the Tenth Circuit Court of Appeals found: Bunn's appeal of the summary judgment order was untimely; and (2) there was no reversible error in the district court's order striking Bunn's motion to vacate.

Estate of Joseph Valverde v. Dodge

Court: US Court of Appeals for the Tenth Circuit

Docket: 19-1255

Opinion Date: July 30, 2020

Judge: Harris L. Hartz

Areas of Law: Civil Procedure, Civil Rights, Constitutional Law, Personal Injury

Denver Police Sergeant Justin Dodge fatally shot Joseph Valverde after he saw Valverde pull out a gun as a SWAT team arrived to arrest him after an undercover drug transaction. Plaintiff Isabel Padilla, as personal representative of Valverde’s estate, sued Dodge under 42 U.S.C. 1983, claiming Dodge used excessive force in violation of Valverde's Fourth Amendment rights. Dodge moved for summary judgment on qualified immunity grounds, but the district court denied the motion. The district court held: (1) a reasonable jury could find that Valverde had discarded the gun and was in the process of surrendering before Dodge shot him; and (2) the use of deadly force in that situation would violate clearly established law. Dodge appealed. After review, the Tenth Circuit reversed the district court. "Dodge is entitled to qualified immunity because he had only a split second to react when Valverde suddenly drew a gun. He did not violate the Fourth Amendment by deciding to shoot without waiting to see whether Valverde was merely taking the gun from his pocket to toss away rather than to shoot an officer. And to the extent that Plaintiff is arguing that Dodge should be liable because he recklessly created the situation that led to the apparent peril, Dodge is entitled to qualified immunity because he did not violate clearly established law."

Stokes v. United States

Court: US Court of Appeals for the Tenth Circuit

Docket: 19-7034

Opinion Date: July 29, 2020

Judge: Moritz

Areas of Law: Civil Procedure, Health Law, Medical Malpractice, Personal Injury

An employee of a federally supported health center failed to properly administer a drug to Alexis Stokes while she gave birth to Baby Stokes. As a result, Baby Stokes suffered from “cerebral palsy and spastic quadriplegia,” along with other disabilities, and his life expectancy was 22 years. The district court awarded damages to Baby Boy D.S. (Baby Stokes) and his parents, Alexis Stokes and Taylor Stokes, (collectively, the Stokes) in this Federal Tort Claims Act (FTCA) action. The government appealed, arguing that the district court erred in structuring damage payments. The Stokes cross appealed, arguing that the district court erred both by miscalculating the present value of a portion of the award and by awarding too little in noneconomic damages. After review, the Tenth Circuit: (1) vacated and remanded the portion of the district court’s order structuring a trust with respect to Baby Stokes’s future-care award, with instructions to fully approximate section 9.3 of the FTCA; (2) vacated and remanded the portion of the district court’s order calculating the present value of Baby Stokes’s future-care award, with instructions to apply Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523 (1983); and (3) affirmed the portion of the district court’s order regarding noneconomic damages. The matter was remanded for further proceedings.

Patel v. Hamilton Medical Center, Inc.

Court: US Court of Appeals for the Eleventh Circuit

Docket: 19-13088

Opinion Date: July 30, 2020

Judge: William Holcombe Pryor, Jr.

Areas of Law: Civil Procedure, Health Law, Labor & Employment Law

After the Medical Center suspended plaintiff's medical privileges, plaintiff filed suit against the Medical Center, an injunction against the suspension, and a declaration that the Health Care Quality Improvement Act provided no immunity from damages to the Medical Center. The Eleventh Circuit vacated the district court's judgment and remanded with instructions to dismiss plaintiff's complaint for lack of subject matter jurisdiction. Plaintiff contends only that federal question jurisdiction exists over his suit, but a request for declaratory relief that a federal law does not entitle the opposing party to a defense ordinarily does not raise a federal question under 28 U.S.C.1331. The court explained that, because the Declaratory Judgment Act does not enlarge the court's jurisdiction, plaintiff must still assert an underlying ground for federal court jurisdiction. In this case, plaintiff's complaint does not establish that the Medical Center could file a coercive action under federal law. Furthermore, a plaintiff cannot create federal question jurisdiction by seeking a declaration that a federal defense does not protect the defendant. Therefore, plaintiff's request for declaratory judgment does not establish federal question jurisdiction.

Gensetix, Inc. v. Baylor College of Medicine

Court: US Court of Appeals for the Federal Circuit

Docket: 19-1424

Opinion Date: July 24, 2020

Judge: O'Malley

Areas of Law: Civil Procedure, Constitutional Law, Education Law, Government & Administrative Law, Intellectual Property, Patents

Decker developed the patented inventions while employed at the University of Texas and assigned the patents to UT. Gensetix obtained an exclusive license in the patents. The license agreement provides that, Gensetix must enforce the patents. The parties agreed to cooperate in any infringement suit and that nothing in the agreement would waive UT's sovereign immunity. Gensetix sued Baylor, alleging infringement and requested that UT join as a co-plaintiff. UT declined. Gensetix named UT as an involuntary plaintiff under FRCP 19(a). The district court dismissed, finding that UT is a sovereign state entity, so that the Eleventh Amendment barred joinder of UT, and that the suit could not proceed without UT. The Federal Circuit affirmed in part. UT did not voluntarily invoke federal jurisdiction; the Eleventh Amendment prevents “the indignity of subjecting a State to the coercive process of judicial tribunals” against its will. It is irrelevant that the license agreement requires the initiation of an infringement suit by Gensetix or cooperation by UT. The court erred in dismissing the suit without adequate analysis of Rule 19(b)'s factors: the extent to which a judgment might prejudice the missing required party or the existing parties; the extent to which any prejudice could be lessened; whether a judgment rendered in the required party’s absence would be adequate; and whether the plaintiff would have an adequate remedy if the action were dismissed.

Adams v. Alaska Workers Compensation Benefits Guaranty Fund

Court: Alaska Supreme Court

Docket: S-17227

Opinion Date: July 24, 2020

Judge: Daniel E. Winfree

Areas of Law: Civil Procedure, Government & Administrative Law, Labor & Employment Law, Personal Injury

Virgil Adams, a self-described journeyman carpenter, worked sporadically from 2009 to 2011 at a house located on Snow Bear Drive in Anchorage. He suffered a “T12 burst fracture with incomplete spinal cord injury” when he fell from the house’s roof in 2011, and became permanently and totally disabled as a result of the fall. He filed a claim with the Alaska Workers’ Compensation Board, and, because the property owner for whom he worked had no workers’ compensation insurance, the Workers’ Compensation Guaranty Fund was joined to the workers’ compensation case. The Fund disputed whether the property owner for whom the carpenter worked was an “employer” as defined in the Alaska Workers’ Compensation Act and contended the worker’s intoxication caused the accident. The Board decided the injury was compensable based on two findings: (1) the property owner was engaged in a real-estate-related “business or industry” and (2) the worker’s alleged intoxication did not proximately cause the accident. The Fund appealed to the Alaska Workers’ Compensation Appeals Commission; the Commission reversed because, in its view, the Board applied an incorrect legal test in determining whether the property owner was an employer and no evidence in the record could support a determination that the property owner was engaged in a “business or industry” at the time of the injury. The Commission decided the intoxication issue was not ripe for review. After review, the Alaska Supreme Court reversed the Commission’s decision, finding the Board did not legally err and substantial evidence supported its employment-status decision. The matter was remanded to the Commission for consideration of the intoxication issue.

Alleva v. Municipality of Anchorage

Court: Alaska Supreme Court

Docket: S-17302

Opinion Date: July 24, 2020

Judge: Peter J. Maassen

Areas of Law: Civil Procedure, Government & Administrative Law, Real Estate & Property Law

Landowners Ronald and Annette Alleva settled a lawsuit against a the Municipality of Anchorage and organizations that operated a homeless shelter and a soup kitchen; the settlement agreement recited that the landowners accepted a sum of money in exchange for a release of present and future trespass and nuisance claims involving the organizations’ clients. Six years later the landowners filed this lawsuit asserting similar claims. Their complaint referred to the prior settlement, but they did not file the settlement agreement with the complaint. The defendants moved to dismiss, relying on the settlement agreement. The landowners argued that because the settlement agreement had not been filed with the complaint, it could not be used as a basis for dismissal under Alaska Civil Rule 12(b)(6). The superior court rejected the landowners’ argument, granted the motion to dismiss, and ruled in the alternative that the defendants were entitled to summary judgment. The landowners appealed. After review, the Alaska Supreme Court agreed with the superior court that the settlement agreement was properly considered on the motion to dismiss because it was addressed in the complaint and its authenticity was not questioned. The Supreme Court also agreed that the settlement barred the landowners’ current lawsuit.

Sampson v. Alaska Airlines, Inc.

Court: Alaska Supreme Court

Docket: S-17211

Opinion Date: July 24, 2020

Judge: Craig F. Stowers

Areas of Law: Civil Procedure, Personal Injury

In April 2015 Tracy Sampson was at the Kotzebue Airport, en route from Anchorage to her home in Selawik. She was walking from the Alaska Airlines terminal to the Bering Air terminal when she slipped and fell on ice. Paramedics brought her to the hospital emergency room. Medical staff took X-rays and told Sampson that she had fractured her kneecap and needed to go to Anchorage for surgery. Medical staff at the Alaska Native Medical Center in Anchorage informed Sampson that half of her kneecap was fractured and half was shattered. They subsequently performed surgery. After surgery, her knee was put in an immobilizer and a cast. She traveled back to Selawik around a week later and was bedridden for about two months. Sampson filed suit against the airline; a jury found the airline liable and awarded Sampson "substantial" damages. Sampson appealed, arguing the special verdict form contradicted the jury instructions. Because the verdict form was not plainly erroneous, the Alaska Supreme Court affirmed.

Golden Door Properties, LLC v. Super. Ct.

Court: California Courts of Appeal

Docket: D076605(Fourth Appellate District)

Opinion Date: July 30, 2020

Judge: Judith McConnell

Areas of Law: Civil Procedure, Environmental Law, Government & Administrative Law, Real Estate & Property Law, Zoning, Planning & Land Use

Under California Public Resources Code section 21167.6, documents "shall" be in the record in a CEQA challenge to an environmental impact report (EIR). The County of San Diego (County), as lead agency for the Newland Sierra project, no longer had "all" such correspondence, nor all "internal agency communications" related to the project. If those communications were by e-mail and not flagged as "official records," the County's computers automatically deleted them after 60 days. When project opponents propounded discovery to obtain copies of the destroyed e-mails and related documents to prepare the record of proceedings, the County refused to comply. After referring the discovery disputes to a referee, the superior court adopted the referee's recommendations to deny the motions to compel. The referee concluded that although section 21167.6 specified the contents of the record of proceedings, that statute did not require that such writings be retained. In effect, the referee interpreted section 21167.6 to provide that e-mails encompassed within that statute were mandated parts of the record - unless the County destroyed them first. The Court of Appeal disagreed with that interpretation, "[a] thorough record is fundamental to meaningful judicial review." The Court held the County should not have destroyed such e-mails, even under its own policies. The referee's erroneous interpretation of section 21167.6 was central to the appeals before the Court of Appeal. The Court issued a writ of mandate to direct the superior court to vacate its orders denying the motions to compel, and after receiving input from the parties, reconsider those motions.

King v. U.S. Bank National Assn.

Court: California Courts of Appeal

Docket: C085276(Third Appellate District)

Opinion Date: July 28, 2020

Judge: Ronald B. Robie

Areas of Law: Civil Procedure, Labor & Employment Law

A jury returned verdicts in favor of plaintiff Timothy King against defendant U.S. Bank National Association (U.S. Bank) for defamation, wrongful termination in violation of public policy, and breach of the implied covenant of good faith and fair dealing, awarding King almost $24.3 million in compensatory and punitive damages. King started in the position of senior vice president regional manager, market lead, and market president for U.S. Bank’s Sacramento area in January 2007. In 2012, two of King's subordinates contacted the Bank's human resources department, raising claims of gender discrimination and harassment. There was substantial evidence from which the jury found the subordinates were biased and hostile toward King, and thus there were "obvious reasons to doubt the veracity of the informant[s] or the accuracy of his [and her] reports." U.S. Bank moved for judgment notwithstanding the verdict on the ground that there was no substantial evidence to support the jury’s verdicts and the award of punitive damages. The trial court denied the motion. U.S. Bank also moved for new trial on the grounds that there was insufficient evidence to support the verdicts, the damages were excessive, and there was an irregularity in the proceedings that prevented a fair trial. The trial court conditionally granted the motion for new trial on the excessive damages ground conditioned upon King agreeing to a remittitur, but denied the motion on the other grounds asserted. King accepted the remittitur and the trial court entered judgment on the remitted award of over $5.4 million. U.S. Bank appeals, challenging the jury’s verdicts on each of the causes of action and the remitted award of punitive damages. King cross-appealed, challenging the trial court’s new trial orders on excessive damages. The Court of Appeal reversed the trial court’s new trial orders, but agreed with the trial court, following its own independent review, that a one-to-one ratio between compensatory and punitive damages was the constitutional limit under the facts of this case. The Court remanded with directions to modify the judgment accordingly.

Steciw v. Petra Geosciences, Inc.

Court: California Courts of Appeal

Docket: G057375(Fourth Appellate District)

Opinion Date: July 29, 2020

Judge: Raymond J. Ikola

Areas of Law: Civil Procedure, Construction Law

In 2014, plaintiffs filed suit against defendants Shappell Industries and Toll Brothers, Inc. (the Developer) for construction defects arising out of the construction of two residences in a community called San Joaquin Hills. The complaint also named Doe defendants, including two causes of action against unnamed engineers, Does 101-125. Plaintiffs claimed that in 2017, some two years and nine months after the suit was filed, the Developer produced discovery that identified Petra Geosciences, Inc. On August 2, 2017, while the matter was still stayed pending the judicial reference proceeding, plaintiffs filed an amendment to the complaint naming Petra as Doe 101. At the same time, it filed a certificate of merit as required by section 411.35 (certificate of merit required before serving the complaint in a malpractice action against an engineer). Plaintiffs personally served Petra with the summons and complaint on August 9, 2017, three years and 38 days after the complaint was filed. The trial court dismissed plaintiffs’ complaint against defendant Petra because plaintiffs had not served Petra with a summons and complaint within three years, as required by Code of Civil Procedure section 583.210. Plaintiffs appealed the subsequent dismissal, contending the court erred in computing the three-year period. The Court of Appeal found the trial court had stayed the matter for nine months while the parties engaged in a prelitigation alternative dispute resolution procedure mandated by a contract. The court did not exclude that period from the three-year calculation. The question was, did that stay affect service, thereby extending the time to serve Petra? The Court concluded it likely did, but that remand was necessary for further findings.

Neustadt v. Colafranceschi

Court: Idaho Supreme Court - Civil

Docket: 47201

Opinion Date: July 30, 2020

Judge: Stegner

Areas of Law: Civil Procedure, Contracts, Family Law

This appeal involved the enforceability of a premarital agreement between Julie Neustadt and Mark Colafranceschi. Before the two were married, they entered into a premarital agreement that required Neustadt to obtain a two-million-dollar life insurance policy naming Colafranceschi as the beneficiary. The agreement required Neustadt to keep the policy in force after termination of the marriage. During the divorce proceedings, Neustadt challenged the enforceability of this provision, arguing that the insurance clause was void as against public policy to the extent it applied after divorce. The magistrate court agreed that the contractual provision was void as against public policy. However, on appeal, the district court reversed, concluding the insurance clause did not violate any public policy in Idaho. Neustadt appealrf, arguing that the district court erred in finding the insurance clause valid and enforceable because, following the parties’ divorce, Colafranceschi had no insurable interest in Neustadt’s life. Colafranceschi also filed a cross-appeal, arguing: (1) the magistrate court erred in denying certain discovery requests; (2) the lower court erred by failing to address his objection to Neustadt’s motion in limine; and (3) the lower courts’ erred in their findings that Colafranceschi failed to prove he was fraudulently induced to sign the premarital agreement to get him to return to the couple’s marital home. The Idaho Supreme Court affirmed the district court decision in its entirety: (1) the Insurance Clause was not void as against public policy; (2) any error regarding discovery was forfeited; (3) there was no evidence that the magistrate court coerced Colafranceschi into withdrawing his extreme cruelty claim; and (4) substantial and competent evidence supported the magistrate court’s conclusions that Colafranceschi was not fraudulently induced regarding equity in the Osprey home.

Puckett v. Bergmann

Court: Idaho Supreme Court - Civil

Docket: 47074

Opinion Date: July 27, 2020

Judge: Moeller

Areas of Law: Civil Procedure

Royal Von Puckett made the winning $100 bid at a sheriff’s sale for two unsatisfied divorce judgments totaling over $230,000. His attorney, Vernon Smith, was the judgment debtor on both judgments. Sharon Bergmann, Smith’s ex-wife, was the judgment creditor on both judgments. The district court concluded that the sale should have been set aside because of grossly inadequate consideration and procedural irregularities associated with the sale. Puckett appealed that order. Finding the district court did not abuse its discretion in setting aside the sheriff's sale, the Idaho Supreme Court affirmed.

Bisio v. City of the Village of Clarkson

Court: Michigan Supreme Court

Docket: 158240

Opinion Date: July 24, 2020

Judge: Stephen J. Markman

Areas of Law: Civil Procedure, Government & Administrative Law

Susan Bisio sued the City of the Village of Clarkston for allegedly violating the Michigan Freedom of Information Act (FOIA). Bisio filed a FOIA request with Clarkston seeking documents related to city business, including correspondence between Clarkston’s city attorney and a consulting firm concerning a development project and vacant property in the city. Clarkston denied Bisio’s request with regard to certain documents in the city attorney’s file. The city attorney, a private attorney who contracted with the city to serve as its city attorney, claimed that the requested documents were not “public records” as defined by MCL 15.232(i). The city attorney reasoned that he was not a “public body,” as defined by MCL 15.232(h), and because the requested documents were never in the possession of the city, which was a public body, the requested documents were not public records subject to a FOIA request. The trial court granted summary judgment in favor of Clarkston, concluding that the documents at issue were not public records because there was no evidence to show that Clarkston had used or retained them in the performance of an official function or that the city attorney had shared the documents with Clarkston to assist the city in making any decisions. The Court of Appeals affirmed the trial court, finding the city attorney was merely an agent of Clarkston and the definition of “public body” in MCL 15.232(h) did not encompass an agent of a public body. After its review, the Michigan Supreme Court reversed, finding the documents at issue did satisfy the statutory definition of "public records."

Mays v. Snyder

Court: Michigan Supreme Court

Dockets: 157335, 157336, 157337

Opinion Date: July 29, 2020

Judge: Bernstein

Areas of Law: Civil Procedure, Environmental Law, Government & Administrative Law, Personal Injury

Water users and property owners in Flint, Michigan (plaintiffs) brought a class action at the Court of Claims against defendants Governor Rick Snyder, the state of Michigan, the Michigan Department of Environmental Quality (the MDEQ), and the Michigan Department of Health and Human Services (collectively, the state defendants) and against defendants Darnell Earley and Jerry Ambrose (the city defendants). Plaintiffs alleged the Governor and these officials had knowledge of a 2011 study commissioned by Flint officials that cautioned against the use of Flint River water as a source of drinking water. In 2014, under the direction of Earley and the MDEQ, Flint switched its water source from the Detroit Water and Sewage Department (DWSD) to the Flint River. Less than a month after the switch, state officials began to receive complaints from Flint water users about the quality of the water coming out of their taps. Plaintiffs alleged state officials failed to take any significant remedial measures to address the growing health threat and instead continued to downplay the health risk, advising Flint water users that it was safe to drink the tap water while simultaneously arranging for state employees in Flint to drink water from water coolers installed in state buildings. The state and city defendants separately moved for summary disposition on all four counts, arguing that plaintiffs had failed to satisfy the statutory notice requirements in MCL 600.6431 of the Court of Claims Act, failed to allege facts to establish a constitutional violation for which a judicially inferred damages remedy was appropriate, and failed to allege facts to establish the elements of any of their claims. The Court of Claims granted defendants’ motions for summary disposition on plaintiffs’ causes of action under the state-created-danger doctrine and the Fair and Just Treatment Clause of the 1963 Michigan Constitution, art 1, section 17, after concluding that neither cause of action was cognizable under Michigan law. However, the Court of Claims denied summary disposition on all of defendants’ remaining grounds, concluding that plaintiffs satisfied the statutory notice requirements and adequately pleaded claims of inverse condemnation and a violation of their right to bodily integrity. The Court of Appeals affirmed the Court of Claims. After hearing oral argument on defendants’ applications, a majority of the Michigan Supreme Court expressly affirmed the Court of Appeals’ conclusion regarding plaintiffs’ inverse-condemnation claim. The Court of Appeals opinion was otherwise affirmed by equal division.

Meemic Ins. Co. v. Fortson

Court: Michigan Supreme Court

Docket: 158302

Opinion Date: July 29, 2020

Judge: David F. Viviano

Areas of Law: Civil Procedure, Insurance Law

Meemic Insurance Company filed suit against Louise and Richard Fortson, individually and as conservator of their son, Justin Fortson, alleging that Richard and Louise had fraudulently obtained payment for attendant-care services they did not provide to Justin. In 2009, Justin was injured when he fell from the hood of a motor vehicle, necessitating constant supervision and long-term care. Richard and Louise opted to provide attendant care to Justin in their home on a full-time basis. Justin received benefits under his parents’ no-fault policy with Meemic, and from 2009 until 2014, Louise submitted payment requests to Meemic for the attendant-care services she and her husband provided, asserting that they provided full-time supervision; Meemic routinely paid the benefits. In 2013, Meemic investigated Richard and Louise’s supervision of Justin, and discovered Justin had been periodically jailed for traffic and drug offenses and had spent time at an inpatient substance-abuse rehabilitation facility at times when Richard and Louise stated they were providing full-time supervision. The underlying policy contained an antifraud provision stating that the policy was void if any insured person intentionally concealed or misrepresented any material fact or circumstance relating to the insurance, the application for it, or any claim made under it. Louise and Richard counterclaimed, arguing that Meemic breached the insurance contract by terminating Justin’s benefits and refusing to pay for attendant-care services. Meemic moved for summary judgment, and the trial court initially denied the motion, reasoning that under the innocent-third-party rule, Meemic could not rescind the policy on the basis of fraud to avoid liability for benefits owed to Justin, an innocent third party. Meemic moved for reconsideration of that decision after the Court of Appeals later concluded in Bazzi v. Sentinel Ins. Co., 315 Mich App 763 (2016), the innocent-third-party rule was no longer good law. On reconsideration, the trial court granted summary judgment in favor of Meemic. Louise and Richard appealed. The Court of Appeals reversed, first reasoning that Bazzi did not apply because the fraud in this case did not occur in the procurement of the policy and did not affect the validity of the contract. The court concluded, however, that the policy’s antifraud provision was invalid because it would enable Meemic to avoid the payment of personal protection insurance (PIP) benefits mandated by MCL 500.3105. The Michigan Supreme Court affirmed, holding that contractual provisions like the one asserted by Meemic, in the context of the mandate of the no-fault act, are valid when based on a defense to mandatory coverage provided in the no-fault act itself or on a common-law defense that has not been abrogated by the act. Because Meemic’s fraud defense was grounded on neither the no-fault act nor the common law, it was invalid and unenforceable. Accordingly, the Court of Appeals was affirmed on different grounds, and the case remanded to the trial court for further proceedings.

Progress Michigan v. Schuette

Court: Michigan Supreme Court

Dockets: 158151, 158150

Opinion Date: July 27, 2020

Judge: Michael F. Cavanagh

Areas of Law: Civil Procedure, Constitutional Law, Government & Administrative Law

Progress Michigan filed a complaint against then Attorney General Bill Schuette in his official capacity, alleging that defendant violated the Michigan Freedom of Information Act (FOIA), and failed to preserve state records under the Management and Budget Act. Plaintiff sought certain e-mail messages between Attorney General Schuette and his staff that were sent using personal e-mail accounts. Defendant denied the request on October 19, 2016, and on November 26, 2016, defendant denied plaintiff’s subsequent departmental appeal of that decision. Seeking to compel disclosure, plaintiff filed its complaint in the Court of Claims. Defendant moved for summary judgment, arguing that dismissal was appropriate because plaintiff failed to comply with the signature and verification requirement of MCL 600.6431 of the Court of Claims Act. Plaintiff amended its complaint which contained allegations identical to those in the original complaint, but was also signed by plaintiff’s executive director and sworn to before the Ingham County Clerk. Defendant again moved for summary judgment, this time arguing that the amended complaint was untimely because it was filed outside FOIA’s 180-day period of limitations. The Court of Claims dismissed plaintiff’s Management and Budget Act claim but denied the summary-judgment motion with respect to defendant’s FOIA claim, holding that plaintiff had complied with the MCL 600.6431 signature and verification requirement and that the complaint was timely filed within that statute’s one-year limitations period. The Court concluded that the amended complaint complied with FOIA’s statute of limitations because the amendment related back to the filing of the original complaint, which had been timely filed. The Court of Appeals reversed, reasoning that the Michigan Supreme Court’s decision in Scarsella v. Pollak, 607 NW2d 711 (2000), rendered plaintiff’s initial complaint a nullity, such that it could not be amended, and that the statutory period of limitations elapsed before the second complaint was filed. The Supreme Court reversed the appellate court, finding Scarsella did not apply in this context, and plaintiff complied with the statutory requirements necessary to sustain its claim under the FOIA.

Carrick v. Turner

Court: Supreme Court of Mississippi

Citation: 2019-CA-00617-SCT

Opinion Date: July 30, 2020

Judge: Leslie D. King

Areas of Law: Civil Procedure, Professional Malpractice & Ethics

Bettye Turner invested approximately $2 million into a securities brokerage account that was created and managed by David Carrick, an investment broker then employed with Morgan Stanley Smith Barney (Morgan Stanley). Carrick later worked for Stern, Agee & Leach, Inc. (Stern Agee). Turner and Carrick signed an Account Application in order to transfer Turner’s funds to a Stern Agee account. The Account Application incorporated by reference a Client Account Agreement that contained an arbitration provision. Eventually, Stifel, Nicolaus & Company, Inc. (Stifel), acquired and merged with Stern Agee. Turner filed a lawsuit against Carrick and Stifel alleging negligent management and supervision of her investment account. Carrick and Stifel moved to compel arbitration. The trial court denied their motion to compel arbitration, and Carrick and Stifel appealed. Because the trial court erred by failing to compel arbitration, the Mississippi Supreme Court reversed the trial court’s judgment and remanded the case to the trial court for further proceedings.

Stratton v. McKey

Court: Supreme Court of Mississippi

Citation: 2019-CP-00822-SCT

Opinion Date: July 30, 2020

Judge: James W. Kitchens

Areas of Law: Civil Procedure, Contracts

Robert Stratton, Sr. owned an antique truck and, in 2006, delivered it to John Shivers’s vehicle repair and restoration business in Liberty, Mississippi. Stratton and Shivers contemplated that Shivers would restore the truck at some point in the future, but they made no firm plans for the restoration, and they never agreed that Shivers would charge a storage fee. Stratton’s truck remained at Shivers’s shop until Jerry McKey bought the business from Shivers in May 2009. Shivers told McKey that Stratton owned the truck, but neither Shivers nor McKey notified Stratton of the change in the business’ ownership. When Stratton learned that the business had changed hands, he contacted McKey and requested possession of the truck. But McKey refused to let Stratton have his truck unless he paid storage fees. Stratton sued McKey for replevin, and the circuit court ruled that Stratton was entitled to possession of the truck conditioned upon his paying McKey $880 for storage fees within thirty days. Stratton appealed; the Court of Appeals affirmed. But the Mississippi Supreme Court reversed both the trial and appellate courts, rendering judgment for Stratton. When McKey failed to relinquish possession of the truck, Stratton filed another complaint against him, and McKey filed a counterclaim for fees for storing the truck. McKey conceded that because he had sold the truck during the pendency of Stratton’s appeal, he owed Stratton the truck’s value. After a bench trial, the Circuit Court of awarded Stratton $350, which represented the value of the truck after the deduction of $1,000 in storage fees owed to McKey. Stratton appealed, challenging the amount of damages and challenging the circuit court’s award of storage fees to McKey. McKey did not file an appellee’s brief. In this case's second trip before the Mississippi Supreme Court, the court affirmed in part and reversed in part. The Court found McKey's counterclaim for storage fees was untimely, and the circuit court erred in awarding storage fees.

State ex rel. Woodco, Inc. v. Honorable Jennifer Phillips

Court: Supreme Court of Missouri

Docket: SC98227

Opinion Date: July 28, 2020

Judge: Mary R. Russell

Areas of Law: Civil Procedure, Contracts, Real Estate & Property Law

The Supreme Court made permanent its preliminary writ of prohibition prohibiting the circuit court from ordering certain defendants to be joined as necessary parties, holding that Mo. R. Civ. P. 52.04(a) did not mandate that the added defendants be joined. After deficiencies in the construction of an independent senior living facility (the Project) were discovered, Plaintiff brought contract and tort claims against the architect, the structural engineer, the construction company, the framer, and the supplier, alleging construction defects. The masonry company hired to perform brick masonry work was not included as a defendant. Certain defendants moved to add the masonry company, arguing that the company must be added pursuant to Rule 52.04. The circuit court ordered the masonry company be joined. Plaintiff filed a petition for a writ of prohibition seeking to direct the circuit court to dismiss and remove the masonry company. The court of appeals denied the petition. The Supreme Court granted the petition, holding that the masonry company was not a "necessary" defendant, and therefore, the circuit court did not have the authority to require joinder.

Krile v. Lawyer

Court: North Dakota Supreme Court

Citation: 2020 ND 176

Opinion Date: July 30, 2020

Judge: Gerald W. VandeWalle

Areas of Law: Civil Procedure, Government & Administrative Law, Labor & Employment Law

Robyn Krile appealed from a district court order granting defendant Julie Lawyer’s motion to dismiss under N.D.R.Civ.P. 12(b)(6). In February 2017, Assistant State’s Attorney Julie Lawyer received an anonymous letter concerning a Bismarck police officer's destruction of evidence. Lawyer averred her decision to review the officer files was to ensure the state’s attorney’s office was fulfilling its disclosure obligations under Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). As part of her investigation, Lawyer reviewed the file of Sergeant Robyn Krile. In Krile’s file, Lawyer discovered two letters of reprimand and several performance evaluations, which Lawyer believed raised Giglio issues. Lawyer further investigated the incidents for which the letters of reprimand were issued, and concluded Krile had made false statements as a Bismarck police officer. Lawyer shared her belief that the letters of reprimand and performance evaluations raised Giglio concerns with Bismarck Police Chief Dan Donlin. Chief Donlin disagreed and advised Lawyer that he did not see the incidents for which the letters of reprimand were issued as amounting to Giglio issues. Despite Chief Donlin’s pleas, Lawyer continued to believe Krile’s conduct amounted to a Giglio issue. Lawyer informed Chief Donlin that the results of her investigation would have to be disclosed to defense in cases in which Krile was involved pursuant to Giglio and, as a result, the Burleigh County State’s Attorney’s Office would no longer use Krile as a witness in its cases. Because the Burleigh County State’s Attorney’s Office was no longer willing to use Krile as a witness in its cases, the Bismarck Police Department terminated Krile’s employment. Krile filed a complaint with the Department of Labor and Human Rights claiming the Bismarck Police Department discriminated against her. After review, the North Dakota Supreme Court reversed dismissal of Krile's defamation claims for Lawyer's disclosure of the results of her investigation (the Giglio letter) to Chief Donlin. The Court affirmed dismissal of Krile’s defamation claims for Lawyer’s disclosure of the Giglio letter and affidavits to the Department of Labor and Human Rights because the communications were absolutely privileged. On remand, the district court may decide whether Lawyer’s communications to Chief Donlin and the POST Board are entitled to a qualified privilege.

Sorum, et al. v. North Dakota, et al.

Court: North Dakota Supreme Court

Citation: 2020 ND 175

Opinion Date: July 30, 2020

Judge: Jerod E. Tufte

Areas of Law: Civil Procedure, Constitutional Law, Energy, Oil & Gas Law, Real Estate & Property Law

The Plaintiffs, in their individual capacities and on behalf of similarly situated taxpayers, sought declaratory relief regarding chapter 61-33.1, N.D.C.C., relating to the ownership of mineral rights in lands subject to inundation by the Garrison Dam, was unconstitutional. The district court concluded that N.D.C.C. 61-33.1-04(1)(b) was on its face unconstitutional under the “gift clause,” and enjoined the State from issuing any payments under that statute. The court rejected Plaintiffs’ constitutional challenges to the rest of chapter 61-33.1. The Defendants appealed and the Plaintiffs cross-appealed the trial court’s orders, judgment, and amended judgment. After review, the North Dakota Supreme Court reversed that portion of the judgment concluding N.D.C.C. 61- 33.1-04(1)(b) violated the gift clause and the court’s injunction enjoining those payments. The Supreme Court also reversed the court’s award of attorney’s fees and costs and service award to the Plaintiffs because they were no longer prevailing parties. The Court affirmed the remainder of the orders and judgment, concluding the Plaintiffs did not establish that chapter 61-33.1 on its face violated the North Dakota Constitution.

Lowman v. Unemp. Comp. Bd. of Review

Court: Supreme Court of Pennsylvania

Docket: 41 EAP 2018

Opinion Date: July 24, 2020

Judge: Donohue

Areas of Law: Civil Procedure, Government & Administrative Law, Labor & Employment Law

In a matter of first impression, the issue this case presented for the Pennsylvania Supreme Court's review was the appropriate test to determine whether a claimant who is otherwise entitled to receive unemployment compensation benefits due to a separation from employment becomes ineligible for those benefits as a result of being self-employed pursuant to Section 402(h) of the Unemployment Compensation Law (the Act, known as the self-employment exclusion). The Court held that Section 4(l)((2)(B), 43 P.S. section 753(l)(2)(B), contained the appropriate test for determining whether or not an individual is in self-employment. If an individual was not in “self-employment,” then he remained eligible for benefits. Applying that test to the facts of this case, the Supreme Court affirmed the Commonwealth Court's ruling that the claimant was not self-employed.

In re Mountain Top Inn & Resort, JO 1-391 (Hall, Appellant)

Court: Vermont Supreme Court

Citation: 2020 VT 57

Opinion Date: July 24, 2020

Judge: Carroll

Areas of Law: Civil Procedure, Environmental Law, Government & Administrative Law, Real Estate & Property Law

Katherine Hall appealed an Environmental Division decision granting summary judgment to Chittenden Resorts, LLC and RMT Associates, d/b/a Mountain Top Inn & Resort (the Resort). The Environmental Division concluded the Resort did not need an amended Act 250 permit to run a rental program where, pursuant to a contractual agreement, the Resort rented out private homes near the Resort. On appeal, Hall argued that the Environmental Division erred in determining that the Resort did not need an amended Act 250 permit. Specifically, she argued the Resort needed an amended Act 250 permit because under 10 V.S.A. 6001(14)(A), the Resort and owners of the homes involved in the rental program were a collective "person." Alternatively, she argued the Resort exercised "control" over the rental homes within the meaning of section 6001(3)(A)(i). The Vermont Supreme Court disagreed with Hall's characterization of the Resort and home owners as a collective "person." Further, the Court found the Resort did not control the rented homes contemplated by section 6001(3)(i). Therefore, the Supreme Court affirmed the Environmental Division's judgment.

McDill v. McDill

Court: Wyoming Supreme Court

Citation: 2020 WY 99

Opinion Date: July 29, 2020

Judge: Kautz

Areas of Law: Civil Procedure, Trusts & Estates

The Supreme Court dismissed this appeal from the district court's grant of summary judgment to Appellee, holding that because the district court's order granting summary judgment did not resolve all outstanding issues before it, it was not an appealable order under Rule 1.05 of the Wyoming Rules of Appellate Procedure (W.R.A.P.). Michael G. McDill, as trustee of the Phyllis V. McDill Revocable Trust, filed a petition for instructions seeking confirmation that the Trust's no contest clause prohibited Thomas P. McDill, Jr. from taking under the Trust. The district court granted Michael's motion for summary judgment and his petition for instructions. Thomas appealed. The Supreme Court dismissed the appeal, holding (1) the district court's order granting Michael's summary judgment motion was not an appealable order under W.R.A.P. 1.05, and therefore, this Court lacked jurisdiction to hear the appeal; and (2) Michael was entitled to attorney fees and costs under W.R.A.P. 1.03 and 10.05.