Latest 7 Cases This Week: Stockdale v. Helper (6th Cir.), Ex parte Alabama Department of Revenue. (Ala.), Ex parte The Terminix International Co., ...

Pope Francis’s Statement Endorsing Same-Sex Civil Unions Undermines the Moral Legitimacy and Legal Arguments in Fulton v. City of Philadelphia

DAVID S. KEMP, CHARLES E. BINKLEY

David S. Kemp, a professor at Berkeley Law, and Charles E. Binkley, MD, the director of bioethics at Santa Clara University’s Markkula Center for Applied Ethics, consider the implications of Pope Francis’s recently revealed statement endorsing same-sex civil unions as they pertain to a case currently before the U.S. Supreme Court. Kemp and Binkley argue that the Pope’s statement undermines the moral legitimacy of the Catholic organization’s position and casts a shadow on the premise of its legal arguments.

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Stigma and the Oral Argument in Fulton v. City of Philadelphia

LESLIE C. GRIFFIN

UNLV Boyd School of Law professor Leslie C. Griffin explains why stigma is a central concept that came up during oral argument before the Supreme Court in Fulton v. City of Philadelphia. Griffin points out that some religions have long supported racial discrimination, citing their religious texts, but courts prohibited such discrimination, even by religious entities. Griffin argues that just as religious organizations should not enjoy religious freedom to stigmatize people of color, so they should not be able to discriminate—and thus stigmatize—people based on sexual orientation.

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Stockdale v. Helper

Court: US Court of Appeals for the Sixth Circuit

Docket: 20-5269

Opinion Date: October 30, 2020

Judge: Jeffrey S. Sutton

Areas of Law: Civil Rights, Constitutional Law, Labor & Employment Law, Legal Ethics

Williamson County District Attorney Helper told other officials that she distrusted Fairview Police officers Stockdale and Dunning and that she would not “take their cases.” Helper wrote to the city manager (Collins): “per our discussion, this Office has concerns about reports initiated/investigated solely by” Dunning or Stockdale and that defense counsel would be entitled to a copy of an earlier investigation report concerning the officers. Helper stated, “[w]ithout independent corroboration from another law enforcement officer and/or independent witness, the[ir] testimony . . . may be impeached.” Collins disputed Helper’s assessment but Helper refused to back down. Collins fired the officers, explaining the email provided the “sole reason.” Stockdale and Dunning sued. They settled their claims against the city, leaving a First Amendment claim and state law claims against Helper. The district court denied Helper’s claim of absolute immunity and her claim for qualified immunity from the federal First Amendment retaliation claim. It also denied her summary judgment with respect to state law claims for official oppression and tortious interference with a business relationship. The Sixth Circuit affirmed in part. Because Helper’s actions were not closely tied to the judicial process, absolute immunity does not apply; because her conduct did not violate any clearly established law, qualified immunity protects her.

Ex parte Alabama Department of Revenue.

Court: Supreme Court of Alabama

Docket: 1190826

Opinion Date: October 30, 2020

Judge: Michael F. Bolin

Areas of Law: Civil Procedure, Government & Administrative Law, Legal Ethics, Professional Malpractice & Ethics

The Alabama Department of Revenue ("DOR") petitioned the Alabama Supreme Court for a writ of mandamus to order Judge Eddie Hardaway to recuse himself from an appeal challenging a decision of the Alabama Tax Tribunal in favor of Greenetrack, Inc. In 2009, the DOR determined Greentrack owed $75 million in sales taxes and consumer-use taxes for its electronic-bingo activities for the period from January 1, 2004, through December 31, 2008. In 2013, the Alabama Department of Revenue moved for Judge Hardaway to recuse himself, arguing that recusal was required because Judge Hardaway had recused himself two months earlier from another case on a related matter involving these same parties. In the present dispute, the DOR asked Judge Hardaway to recuse himself. This time the circuit court denied the request without providing any specific rationale or reasoning in its order, finding the "cases and authorities relied upon by the Alabama Department of Revenue do not support recusal under the facts and circumstances of this case." Finding the DOR demonstrated a clear, legal right to the recusal of Judge Hardaway in this matter, the Alabama Supreme Court granted its petition and directed Judge Hardaway to recuse himself.

Ex parte The Terminix International Co., LP, et al.

Court: Supreme Court of Alabama

Docket: 1180863

Opinion Date: October 30, 2020

Judge: Mitchell

Areas of Law: Civil Procedure, Consumer Law, Legal Ethics

Birmingham law firm Campbell Law, P.C., represented consumers in legal proceedings against pest-control companies, including The Terminix International Co., LP, and Terminix International, Inc. (collectively referred to as "Terminix"). After Campbell Law initiated arbitration proceedings against Terminix and Matthew Cunningham, a Terminix branch manager, on behalf of owners in the Bay Forest condominium complex ("Bay Forest") in Daphne, Terminix and Cunningham asked the circuit court to disqualify Campbell Law from the proceedings because it had retained a former manager of Terminix's Baldwin County office as an investigator and consultant. The trial court denied the motion to disqualify. Terminix and Cunningham petitioned the Alabama Supreme Court for a writ of mandamus, arguing that the Alabama Rules of Professional Conduct required Campbell Law's disqualification. In support of their petition, Terminix argued the investigator/consultant possessed privileged and confidential information related to disputes between Terminix and parties represented by the law firm, and that Campbell Law violated the Rules of Professional Conduct. The Supreme Court concluded the petitioners did not demonstrate Campbell Law violated the Rules, thus did not establish they had a clear legal right to mandamus relief. The petition was denied.

McCluskey v. Henry

Court: California Courts of Appeal

Docket: A158851(First Appellate District)

Opinion Date: November 2, 2020

Judge: Petrou

Areas of Law: Arbitration & Mediation, Legal Ethics

McCluskey sought damages for the termination of her Airbnb account, alleging intentional infliction of emotional distress. The court granted a motion to stay the action and compel arbitration under the contract between McCluskey and Airbnb. McCluskey filed a claim for arbitration with the American Arbitration Association (AAA), which set deadlines for paying filing fees. McCluskey paid her fee; AAA acknowledged receipt. Airbnb sent the fee by wire transfer. AAA did not acknowledge receipt. In an April 9 email, AAA informed all counsel that it had closed the arbitration due to defendants’ failure to pay their filing fee. Defense counsel contacted AAA, and, on April 19, sent documentation of an April 5 wire transfer and an email explaining the payment had been sent together with another payment. On May 1, AAA emailed all parties that payment had been received and that AAA needed confirmation, by May 6, that they wanted the case reopened. Not having heard from McCluskey, on May 9 AAA sent “a final request for confirmation.” McCluskey again did not respond. On May 10, McCluskey sought to lift the stay, asserting that the defendants’ failure to pay their filing fee by April 5, constituted a default, waiver, or breach of the arbitration agreement. The court denied the motion. The defendants served a section 128.7 sanctions motion. The court of appeal affirmed an award of $22,159.50, as “reasonable” attorney fees for opposing the motion to lift the stay and declining to award fees incurred in bringing the sanctions motion.

People v. Reyes

Court: California Courts of Appeal

Docket: A158095(First Appellate District)

Opinion Date: October 30, 2020

Judge: Streeter

Areas of Law: Criminal Law, Legal Ethics

Reyes, a deputy public defender who began practicing law less than three years ago, was charged with witness tampering under Penal Code section 136.1(b)(1), which proscribes an attempt to dissuade any victim of or witness to a crime from reporting “that victimization” to law enforcement, and under section 137(b), which proscribes the attempted inducement of any person “by the use of fraud” to “withhold” “true material information pertaining to a crime” from law enforcement. The superior court granted Reyes’s motion to set aside the information. The court of appeal affirmed the dismissal of the section 136.1(b)(1) count. Neither the statutory text, the structure of the statute, nor the legislative history addresses whether, to constitute "dissuasion," the suppressed report of “victimization” must be of a past, completed crime or may be either a past crime or an ongoing course of criminal conduct expected to continue into the future; the court resolved the ambiguity in Reyes’s favor under the rule of lenity. The court reversed the dismissal of the 137(b) count. The statute has no language requiring, even arguably, that the withholding of testimony or information to which it is directed must involve a past crime. All it requires is that the attempt to induce the withholding must be made “by the use of fraud,” which was indisputably alleged.

Freirich v. Rabin

Court: Colorado Supreme Court

Citation: 2020 CO 77

Opinion Date: November 2, 2020

Judge: William W. Hood, III

Areas of Law: Civil Procedure, Legal Ethics, Trusts & Estates

When Louis Rabin died, he left everything to his widow, Claudine. She was also named as the personal representative to manage his estate in probate. Louis’s former wife, Suyue Rabin, made a claim against the estate based on a couple of promissory notes. These notes totaled $200,000 and were made payable to Suyue upon Louis’s death, and were executed while Louis was married to Claudine. Claudine didn’t know the notes existed until Suyue made the claim. Claudine asked Louis’s longtime attorney, Mark Freirich, for all of Louis’s legal files, most of which had nothing to do with the notes. He refused, citing confidentiality concerns. She then subpoenaed the files. When Freirich refused, a lawsuit was filed, reaching the Colorado Supreme Court. After review, the Court held: (1) Colorado’s Probate Code did not grant a personal representative a general right to take possession of all of a decedent’s legal files as “property” of the estate; (2) a decedent’s lawyer was ordinarily prohibited from disclosing a decedent’s legal files, even to the personal representative; but (3) a decedent’s lawyer could provide the personal representative with otherwise privileged or confidential documents if such disclosure was necessary to settle the decedent’s estate. The Court of Appeals erred in reversing the district court's order quashing the subpoena. That portion of the appellate court's judgment was reversed and the matter remanded for further proceedings.

Inquiry Concerning Judge David Craig Miller

Court: Florida Supreme Court

Docket: SC20-1073

Opinion Date: November 5, 2020

Judge: Per Curiam

Areas of Law: Legal Ethics

The Supreme Court held that the conduct of Judge David Craig Miller of the Eleventh Judicial Court violated the Code of Judicial Conduct and that the appropriate discipline was a public reprimand, concluding that the findings of the Judicial Qualifications Commission (JQC) were supported by clear and convincing evidence. In its findings and recommendation of discipline, the JQC found that Judge Miller violated Canons 1, 2A, and 3B(4) of the Code of Judicial Conduct. The JQC then recommended a public reprimand. In a stipulation, Judge Miller admitted to the alleged conduct, conceded that the conducts violated the Code of Judicial Conduct, and accepted the JQC's findings and recommendation of discipline. The Supreme Court approved the stipulation entered into by Judge Miller and the JQC and reprimanded Judge Miller for his misconduct.