Adjunct Law Prof Blog

Texas: Facebook "Friendship" Alone Does Not Require Recusal

The Fifth Circuit Court of Appeals of Texas, located in Dallas, held last week that a trial judge's undisclosed Facebook  "friendship" with the victim's father in a criminal prosecution alone does not establish grounds for recusal or disqualification.  Youkers v. State of Texas, No. 05-11-01407-CR (Tex. App. -- Dallas, May 15, 2013). 

Defendant in the case pled guilty to assault of his pregnant girlfriend and received a 10-year sentence suspended for 5-years plus a $500 fine.  Three months, later, the State filed a motion to revoke.  Defendant entered an open plea of true to the motion's allegations at the revocation hearing.   The trial judge sentenced Defendant to eight-years in the state penitentary and later denied the motion for new trial.  The Defedant argued on appeal that he was entitled to the new hearing because the judge and the victim's father were undisclosed Facebook "friends" and that the judge had received an improper ex parte message (one favorable to the Defendant) via Facebook from the victim's father prior to sentencing.

The court analyzed the case facts, applicable canons, and further applied the recent ABA Standing Comm. on Ethics & Prof. Responsibity, Formal Op. 462 (February 21, 2013) (authorizing judges to participate in social networking providing such participation complies with relevant ethics rules).  The appellate court also examined other Texas cases involving cases where judges presided in cases where the judge had a seemingly close, public relationship with a party.  For example, in Lueg v. Lueg, 976 S.W.2d 308, 311 (Tex. App--Corpus Christi 1998, pet denied), cited by the Dallas court, another intermediate appellate court held that the mere fact that a party was a former campaign manager for the judge alone was insufficient to require the judge's recusal.  The court rejected Defendant's claim of actual and apparent impartiality on the record and affirmed that ground.

Not all states agree with the approach taken by the ABA (and this Texas court) on judges using social media.  Last September, for example, the Florida appeals court held that a judge's Facebook friendship alone presents grounds for disqualification.  Domville v. State of Florida, 103 So.3d 184 (Fla.Cir. Ct. 2012) (covered by this blog here).  Florida's state judicial ethics commission had previously rendered an opinion applying a restrictive approach to social media use for judges - a different approach than the one adopted by the ABA.

The permissive approach to judicial social media use adopted by the ABA and this Texas Court requires fact-intensive analysis into the relationship between the judge and the social media friend in recusal and disqualification issues.  For this reason this issue now of first impression is one likely to be revisited frequently in states applying the ABA's permissive guidelines as more judges enter the social networking world.

Craig Estlinbaum

Union Release Time In The Public Sector

A court in Arizona reportedly held that police could not use release time for union representationalwork. A newspapter article describing this case is available here. The plaintiff's theory appears to be that paying public employees for union business is a gift of public funds.

I do not buy this for a minute and it is just another example of anti-union animus that some people feel. I see this as no different than wages. A union also presents order in the workforce and that provides a benefit to the public. Preventing arbitrary employer action is also in the publics interest as most labor law statutes were enacted to reduce industrial strife. Public policy supports the right to organize and bargain collectively.

Law review commentary on this important topic would be most welcome.

Mitchell H. Rubinstein

Kentucky High Court Limits Grandparent Visitation Rights

In a major family law decision, the Supreme Court of Kentucky yesterday, relying on Troxel v. Granville, 530 U.S. 57 (2000), held that a fit parent is presumed to act in the best interest of the child and that a grandparent seeking child visitation against the parent's wishes must overcome the presumption by clear and convicing evidence that allowing the grandparent visitation is in the child's best interest.  Walker v. Blair, No. 2012-SC-000004-DGE (Ky., Oct. 25, 2012).

In this case, paternal grandparent filed for visitation of her grandchild after her son, the grandchild's father, committed suicide under a pre-Troxel state law.  Mother opposed the visitation.  The Supreme Court held the pre-Troxel grandparent visition statute to be constitutional and interpreted the law to comply with Troxel's requirement that fit parents be presumed to act in the child's best interest.  Because the trial and appellate courts in this case placed the parent and grandparent on equal footing and did not give the parent's decision to deny visition the special weight required by Troxel, the Supreme Court reversed and remanded for further proceedings.

See also:  Louisville Courier-Journal story here.

Craig Estlinbaum

National security trumps federal employee’s civil service protection

Various media reports

Newspapers and others have published articles about a United States Circuit Court decision that concluded that the federal Merit Systems Protective Board cannot consider appeals from federal workers demoted or terminated from their position based on their lack of  “security clearance.”

The Circuit Court held that ”the Board cannot review the merits of Executive Branch agencies’ national security determinations concerning eligibility of an employee to occupy a sensitive position that implicates national security.”

In response to a number of inquiries seeking a copy of the decision, the case is Berry [as Director, Office of Personnel Management] v Conyers and Northover and the Merit Systems Protective Board, # 2011-3207, Petition for Review of the Merit Systems Protection Board in Consolidated Case Nos. CH0752090925-R-1 and AT0752100184-R-1, US Circuit Court of Appeal, Federal Circuit.

The decision is posted on the Internet at:

http://www.cafc.uscourts.gov/images/stories/opinions-orders/11-3207.pdf

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

Arizona: Tattoo Artists Enjoy Free Speech Protections

In an important free speech case yesterday, the Arizona Supreme Court held that tattooing is protected free speech under the First Amendment and Arizona's state constitution.  The case is Coleman v. City of Mesa, No. CV-11-0351 (September 7, 2012).

Plaintiffs in the case sued the City after being denied a permit to open a tattoo parlor.  The city's controlling ordinance effectively bans certain specified uses, including tattoo parlors, unless the city council grants a permit for the use.  The Supreme Court, after finding tattooing to be constitutionally protected expression, held the city's permitting scheme vested unbridled discretion in city officials and failed the First Amendment's time, place and manner test.  The Court reversed the trial court's dismissal for failure to state a claim and returned the case to that court for further proceedings.

The Arizona Court considered three approaches to the issue:  (1) tattooing is purely expressive activity fully protected by the First Amendment; (2) tattooing is non-expressive activity not First Amendment protected; and (3) categorization on a case-by-case basis.  Notably, the Court cited a student comment, Ryan J. Walsh, Comment, Painting on a Canvass of Skin: Tattooing and the First Amendment, 78 U. Chi. L. Rev. 1063 (2011), for the third approach.

Craig Estlinbaum

California Abolishes the Release Rule

The common law release rule provides that a plaintiff’s settlement with, and release from liability of, one joint tortfeasor also releases from liability all other joint tortfeasors.

The California Supreme Court repudiated the common law release rule yesterday in Lueng v. Verdugo Hills Hospital, No. S192768 (Cal. August 23, 2012).  The unanamous court wrote:

The rationale for the common law release rule was “that there could be only one compensation for a joint wrong and since each joint tortfeasor was responsible for the whole damage, payment by any one of them satisfied plaintiff’s claim against all.”  That rationale assumes that the amount paid in settlement to a plaintiff in return for releasing one joint tortfeasor from liability always provides full compensation for all of the plaintiff’s injuries, and that therefore anything recovered by the plaintiff beyond that amount necessarily constitutes a double or excess recovery.  The assumption, however, is unjustified.  For a variety of reasons — such as the settling defendant’s limited resources or relatively minor role in causing the plaintiff’s injury — a plaintiff may be willing to release one tortfeasor for an amount far less than the total necessary to fully compensate the plaintiff for all injuries incurred.  As Dean Prosser observed in his criticism of the common law release rule:  “There is a genuine distinction between a satisfaction and a release.”

Craig Estlinbaum 

California: 110-year sentence overturned on Eighth Amendment Grounds

Last Thursday, the California Supreme Court unanimously overturned a 110-year to life sentence against a juvenile offender on Eighth Amendment grounds.  Citing Graham v. Florida, 130 S.Ct. 2011 (2010) (holding the Eighth Amendment prohibits states from sentencing a juvenile convicted of nonhomicide offenses to life imprisonment without the possibility of parole), the court held that such a sentence against a juvenile for a nonhomicide offense violates the juvenile's right against cruel and unusual punishment.

The case is People v. Caballero, No. S190647 (Cal. Aug. 16, 2012), and may be found here.

Hat tip:  Sentencing Law and Policy

Craig Estlinbaum

N.M.: Emancipated Daughter Entitled to Receive Child Support from Mother

Today, the New Mexico Supreme Court released a unanimous family law decision of first impression, holding that the New Mexico Emancipation of Minors Act  ("Emancipation Act") authorizes a district court to emanicpate a minor for some, but not all of the enumerated purposes in the act.  Applied to this particular case, the decision reversed the Court of Appeals and affirmed a district court's order emancipating the minor plaintiff while also awarding the minor monthly child support payments from her mother. Diamond v. Diamond, No, 32,695 (N.M. July 2, 2012).

Here, Jhette Diamond ("Daughter") filed for and won emancipation from her Mother at age 16 with the court reserving Daughter's right to collect child support (Daughter is now in her early 20's).  Mother did not participate in the hearing, but later filed a motion to set aside the judgment.  The trial court conducted a hearing on the motion and denied the Mother's relief, as well as Mother's objection to her duty to support the now emancipated Daughter (Mother conceived Daughter by artificial insemination, Id., fn 1, at 4).  The New Mexico Court of Appeals reversed.

The Emancipation Act describes nine puposes for which a minor may be emancipated by a court, and further provides that a court may emancipate a minor "for one or more" of those purposes.  One such purpose is the minor's "right to support by his parents."  The Supreme Court applied rules of statutory construction to concludes the Emancipation Act authorized a court to emanicpate a minor "for a single enumerated purpose, for all nine enumerated purposes, or for any intermediate number of enumerated purposes."  Id, at 6. 

The Supreme Court also rejected Mother's argument that Daughter could not prove she was "managing her own financial affairs" (a requirement for emancipation under the Emancipation Act) if she required or needed financial assistance from her.  The Supreme Court observed that the Emanicpation Act contemplated that the emancipated minor may require public assistance and expressly provides a minor may not be denied such benefits to which she may be entitled because of emancipation.   In rejecting Mother's argument, the Court pointed out further that the trial court did not emancipate Daughter from her support right.

The New Mexico court closed by examining a minor's right to support from her parents under common law and the laws of other states.  The several states offer mixed results often turning on statutory language, from all-or-nothing emancipation (California, Vermont), to all-or-partial emancipation (Montana, Nevada) to emanicpation that mandates continued parental support (Michigan).  The court found that courts created common law emancipation to protect a child's labor from the parents' creditors, and provided for partial emancipation where appropriate. Of particular note was P. J. Hunycutt & Co. v. Thompson, 74 S.E.628 (N.C. 1912), where the court held that where the father "ran off" the son, the son's later emancipation would not halt the father's support obligations.  Diamond, at 13-15.

Craig Estlinbaum

DC Circuit Upholds EPA Gashouse Regulations

In what on writer called a "stinging rebuke to industry and [the challenging] states," a three-judge DC Circuit court panel Tuesday upheld the Environmental Protection Agency's ("EPA's") greenhouse gas regulations.

The case, Coalition for Responsible Reg v. EPA, No. 09-1322 (D.C. Cir. June 26, 2012), following the United States Supreme Court's 5-4 decision in Massachusetts v. EPA, 549 U.S. 497 (2007) which compelled the EPA to regulate air pollutants under the Clean Air Act's ("CAA's") authority.  The EPA in turn issued an Endangerment Finding, determining that greenhouse gases may "reasonably be anticipated to endanger public health or welfare" (citing the CAA) and the Tailpipe Rule, setting emission standards for cars and some trucks. The EPA also ordered certain stationary greenhouse gas producers to obtain construction and operating permits.  Finally, the EPA issued a Timing and Tailoring Rule providing that only the largest stationary producers would be initially subject to the permit requirements.

The Petitioners which included some states and industry groups challenged the rules on ground that the EPA had improperly interpreted the CAA.  Yesterday, the appeals court panel consisting of Judges Sentelle (Reagan appointment), Rogers (Bush II) and Tatel (Clinton), rejected those challenges, allowing the EPA rules to stand.

The next meaningful step for the challengers in this case is the United States Supreme Court, as en banc review of this unanimous decision seems very unlikely.  The Massachusetts case was decided five-to-four, and four justices are required to grant certiorari. Inasmuch as the court's composition has changed with two justices from the Massachusetts majority (Stevens, the opinion's author, and Souter) having left the court, I would say there is some chance the Massachusetts dissenters will vote to grant certiorari in the case.

Craig Estlinbaum

Gov. Walker To Now Use Prison Labor

Remember Gov. Walker and Wisconsin. Whatever your views on the so called "Budget Repair Bill," you must admit that this guy is radical. He now wants to use prison labor to replace union labor with prison labor. The Cap Times reports:

Gov. Scott Walker ran for election on a promise to create 250,000 jobs during his first term in office. Now it seems some of that job growth has found its way to at least one county jail in Wisconsin.

Racine County Executive Jim Ladwig told several media outlets earlier this week he plans to add shoveling, landscaping and painting to the to-do lists of county inmates. Until recently, inmates were only allowed to cut the grass along highways.

That changed Wednesday when the state's controversial collective bargaining law took effect.

Read more: http://host.madison.com/ct/news/local/govt-and-politics/capitol-report/article_abc24a50-a362-11e0-bef3-001cc4c002e0.html#ixzz1Sqwooa8h

Mitchell H. Rubinstein

 

Superior reporting employee's misconduct had either absolute immunity or qualified immunity from liability

Taylor v Brentwood UFSD, CA2, 143 F.3d 679

A Brentwood school principal, Anne Rooney, alleged that district teacher, Charles B. Taylor, used corporal punishment in violation of district policy. After investigating the allegation, the district filed disciplinary charges against Taylor. The disciplinary panel found him guilty of the charges and he was suspended without pay for one year.

Taylor then filed a Section 1983 [Civil Rights] claim, naming Rooney and other district officials as defendants. He contended that his one-year suspension from teaching constituted race discrimination in violation of the Fourteenth Amendment (equal protection). A federal district court jury agreed with Taylor’s arguments and said that Rooney was liable for over $185,000 in damages. Rooney appealed and the Second Circuit Court of Appeals in New York reversed the lower court’s decision.

The court cited with approval Rooney’s arguments that:

1. Her action [reporting the alleged use of corporal punishment] was not the proximate cause of any injury sustained by Taylor;

2. She had either absolute immunity or qualified immunity from liability because she acted pursuant to her official duty to report complaints regarding the use of corporal punishment by teachers to her superiors; and

3. Taylor, having been found guilty by the disciplinary panel, could not relitigate the issue of whether he was treated differently from similarly situated Caucasian teachers in his Section 1983 action.

The Circuit Court commented that “Taylor had a history of physical confrontations with students ...” occurring throughout the administrations of three different principals. It also took notice of the District’s “Corporal Punishment Policy” and evidence showing that Taylor had been “repeatedly reminded” of the policy over a fifteen-year period and had received several reprimands regarding the manner in which he disciplined students.

The Circuit Court ruled that Rooney could not be held liable because she was not proximately cause Taylor’s suspension. That, said the Court, action resulted following an investigation and a due process hearing in which Taylor was found guilty. It said that its decision in Jefferies v Harleston, 52 F3d 9, controlled the outcome of this case.

In Jefferies, the Circuit Court ruled that “although the actions of certain defendants were unconstitutional, liability under Section 1983 did not attach because such actions could not be considered the cause of any injury sustained by the plaintiff.”

The Court said that it believed that the independent investigations of the incidents by school officials, together with the school board’s filing charges culminating in the decision of the disciplinary hearing panel to suspend Taylor, constituted a superseding cause of Taylor’s injury, breaking the causal link between any racial animus Rooney may have had and Taylor’s suspension.

Concluding that no reasonable jury could find Rooney’s actions to be the cause of Taylor’s injury, the Court said that no new trial was necessary. Accordingly, all that was needed was for the Circuit Court to remand the case to the district court with instructions to enter judgment for Rooney.

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

Big Brothers/Big Sisters of America cannot be held liable for the actions of a volunteer mentor, but there local affiliate can be

We have discussed the difficulty in determining who is and who is not an employee many times on this blog, and in particular with respect to whether volunteers can be treated as employees. Now comes another twist, can companies be liable in tort for the actions of volunteers. A recent New York lower court decision held that that parent companies could not.   Lamarche v. Big Brothers/Big Sisters of America, ___Misc. 3d___(Richmond Co. Jan. 23, 2009). The reasoning was one of duty. The court held that a parent organization had no duty to a member of the public serviced by its NYC affiliate.

However, that NYC affiliate could be responsible for the actions of one of its volunteers. The court essentially applied a negligent hiring type of analysis and concluded that summary judgment to the defendant was inappropriate because of the volunteer's alcoholism and emotional past.

A New York Law Journal article about this case is available here (registration required).

Mitchell H. Rubinstein

More and More Amicus Briefs Being Filed in the Supremes

The Supreme Court report contained in the November 2007 ABA Journal (copy not available on line) contains an article about the increasing use of amicus briefs in the Supreme Court by major law firms. This is due in part, says the article, because the Court is agreeing to hear less cases. Quoting Professor Kathleen Sullivan, the article states "with the shrinking docket, there are too may Supreme Court lawyers chasing too few cases on the merit."

Something to think about.

Mitchell H. Rubinstein

5th Circuit Holds No Insurance Coverage Owed For Flooding Caused By Katrina Levee Breaches

On August 2, 2007, the 5th Circuit decided  In re: Katrina Canal Breaches Consolidated Litigation, No 07-30119, ___F. 3d ___(5th Cir. 2007) which is a 52 page slip opinion holding that policyholders in Louisiana are not entitled to insurance coverage under homeowners, renters or commercial property policies for flood damages caused by breaches in New Orleans’ levees during Hurricane Katrina.

The panel reasoned that even if the policyholders could prove that the levees were negligently designed, constructed or maintained, the flood exclusions in the policies clearly preclude coverage regardless of what caused the flooding. Most insurance policies exclude coverage for floods

“Regardless of what caused the failure of the flood-control structures that were put in place to prevent such a catastrophe, their failure resulted in a widespread flood that damaged the plaintiffs’ property. This event was excluded from coverage under the plaintiffs’ insurance policies, and under Louisiana law, we are bound to enforce the unambiguous terms of their insurance contracts as written,” the panel said.

Mitchell H. Rubinstein

Breaking News! House Passes Ledbetter Amendment to Title VII, the ADA, ADEA and the Rehabiliation Act of 1973

On July 30, 2007, the House approved H. R. 2831 by a vote of 215-187 which amends Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the Americans With Disabilities Act of 1990, and the Rehabilitation Act of 1973 to clarify that a discriminatory compensation decision or other practice that is unlawful under such Acts occurs each time compensation is paid pursuant to the discriminatory compensation decision or other practice, and for other purposes.

This Bill is intended to legislatively over-rule the Supreme Court's decision in Ledbetter v. Goodyear, 550 U.S. __(2007) which I previously discussed here. In Ledbetter, the Supreme Court issued a  5-4 decision holding that the 180/300 day time period to file a charge of discrimination with the EEOC runs from the date the discriminatory decision was initially made as opposed to when the employee actually received her paycheck.

Before this Bill was passed, President Bush indicated that he will veto this legislation. The President's statement is available here. The President strongly oppposes this legislation, reasoning in part:

Meaningful statutes of limitations in these sorts of fact-intensive cases are crucial to the fair administration of justice. The prompt assertion of employment discrimination permits employers to defend against – and allows employees to prove – claims that arise from employment decisions instead of having to litigate claims that are long past. In such cases, evidence often will have been lost, memories will have faded, and witnesses will have moved on.

Moreover, effective statutes of limitations benefit employees by encouraging the prompt discovery, assertion, and resolution of employment discrimination claims so that workplace discrimination can be remedied without delay.

Mitchell H. Rubinstein

Washington Supreme Ct.-Felons Not Denied Constitutional Right to Vote

In many states convicted felons loose their right to vote-at least for a certain period of time. A July 26, 2007 Associated Press article which was picked up by Find Law entitled "WA Court: Felons Must Pay Fines to Vote" describes a Washington state Supreme Court case which held that felons who serve their full prison sentence must pay all of their court imposed fines before their right to vote will be restored.

This seems like a common sense ruling and it I find it surprising that this issue actually divided the court (6-3). Unfortunately, I do not believe that most convicted felons care much about their right to vote so I do not seem much practical utility with this court decision.

Mitchell H. Rubinstein

Family-Leave Values

The July 29, 2007, New York Times Magazine published an interesting article by Eyal Press entitled "Family-Leave Values" which is well worth reading. In this lengthly and comprehensive article, the author details real life employment problems that many parents have experienced because of their family responsibilities. As the article states:

Until recently, lawsuits claiming workplace discrimination because of family care-giving obligations were rare — in part because, however harsh it may seem to lose your job under circumstances like Deonarain’s, employers could often get away with it. The 1993 Family and Medical Leave Act guarantees workers some unpaid time off in the event of a serious health problem, after the birth of a child or to care for a sick family member, but the law’s scope is limited. (It doesn’t cover companies with fewer than 50 employees, for example. Computer Literacy World had just under 50 at the time.) And no federal antidiscrimination statute exists that explicitly protects family caregivers in the workplace.

But what constitutes discrimination in the eyes of the law is changing. And one reason it’s changing is that the ranks of people like Karen Deonarain have grown. Since the mid-1990s, the number of workers who have sued their employers for supposed mistreatment on account of family responsibilities — becoming pregnant, needing to care for a sick child or relative — has increased by more than 300 percent. More than 1,150 such lawsuits have been filed in federal and state courts, a trend that has not gone unnoticed in the business world, not only because companies are well aware of the negative publicity lawsuits can generate but also because numerous plaintiffs have walked away with hefty damage awards. In one case, a jury granted $11.65 million to a hospital maintenance worker who was penalized for having to care for his elderly parents. In Ohio recently, a jury awarded $2.1 million to an assistant store manager who was demoted because she has several kids.

The workers pressing such claims have invoked a dizzying array of laws to prove they were mistreated. Some have relied on Title VII of the 1964 Civil Rights Act, which a number of courts have ruled prohibits not only overt sex discrimination but also seemingly neutral policies that have a disparate impact on women. Others have invoked the 1990 Americans With Disabilities Act, which covers both individuals with disabilities and, to a lesser extent, the people who care for them. Others still have drawn on the many state and local laws passed in recent years to safeguard the rights of employees with families.

This article highlights the limits of the FMLA and the ADA and perhaps might lead some states to enact additional pro-family legislation. It is surely needed.

In May 2007, the EEOC issued enforcement guidelines Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities which researchers may also want to consult.

Hat Tip: Workplace Prof Blog where Professor Jeff Hirsch offers some additional insights about this important subject.

Mitchell H. Rubinstein

Mediation Confidentiality

  Wimsatt v. Superior Court, 152 Cal. App. 4th 137 (Cal. Ct. App., 2007), is an important decision where a California state appellate court held that mediation confidentiality barred discovery of mediation briefs and e-mails. The plaintiff had sought this information in connection with a malpractice action against his former lawyer. The plaintiff had alleged that the attorney breached his fiduciary duty by submitting unauthorized material during mediation. Relying on California law, which provided that mediation was confidential, the court held that the plaintiff was not entitled to this disclosure. Interestingly, the court did expressly stated that it was not recognizing a mediation privilege, but instead was recognizing mediation confidentiality.

Surprising there has actually been a number of cases in California, which the court reviews, concerning mediator confidentiality. The decision is lengthly and well written. It also cites to a number of law review articles concerning this topic.

For mediation to have any chance of working, the parties must be able to speak frankly. Confidentiality encourages such frank communications. I believe the court got it right. Though this case had nothing to do with labor relations, the same principles should apply to a labor mediation.

Mitchell H. Rubinstein   

Injured Ex-Cowboy, Chad Hennings, Not Entitled to Workers Compenation Benefits

In  Gulf Insurance Co. v. Hennings (Texas App. Dist. 2007), a Texas state appellate court, in a case of first impression, held that a former Dallas Cowboy ,who unquestionably was injured while playing, was not entitled to Workers Compensation benefits. This decision was based upon a provision in the Texas Workers Compensation statute which provides:

A professional athlete employed under a contract for hire or a collective bargaining agreement who is entitled to benefits for medical care and weekly benefits that are equal to or greater than the benefits provided under this subtitle may not receive benefits under this subtitle and the equivalent benefits under the contract or collective bargaining agreement. An athlete covered by such a contract or agreement who sustains an injury in the course and scope of the athlete's employment shall elect to receive either the benefits available under this subtitle or the benefits under the contract or agreement.

After Chad Hennings, who was a defensive lineman for the Dallas Cowboys, was terminated he accepted benefits under the collective bargaining agreement which amounted to approximately $87, 000 in severance pay and $225,000 under an injury protection clause.

Hennings argued unsuccessfully that because his medical benefits were limited by his contract to the term of [his] contract as the Club physician may deem necessary, the medical benefits provided by the contract were not equal to or greater than medical benefits as a matter of law. The majority, however, viewed this simply as an election of remedies type of case, reasoning:

  Hennings received $225,000 in "injury protection benefits" and medical expenses of $38,921.98 by virtue of his contract with the Dallas Cowboys and a collective bargaining agreement under the National Football League. Having received those benefits, he cannot now recover workers' compensation benefits as well.

This decision generated a dissent which would have allowed Hennings to collect because the contract was of limited duration.

Unfortunately, both the majority and dissenting opinion are very poorly written and reasoned. It is surprising that the court, which afterall was an appellate court, did not detail its reasoning, particularly since it acknowledged that a question of first impression was involved. 

In a July 23, 2007, Texas Lawyer article about this case (available here), Hennings vows to appeal. 

I do not know enough about Workers Compensation benefits to know whether this type of statute is unique to Texas law. What I do know is that every state has a Workers Compensation statute and the whole purpose of Workers Compensation is to eliminate a tort suit against employers in exchange for an administrative process which allocates benefits. If Hennings is not covered by Workers Compensation, he normally could sue his employer in tort.

However, my guess is that since there is some type of injury benefits clause under the NFL-Players collective bargaining agreement, he might not be able to sue since the terms and conditions of his employment are subject to the collective bargaining agreement. Because those benefits were not that high, Hennings was seeking Workers Compensation.   

Mitchell H. Rubinstein

FRCP Amendments-Stylistic or Substantive Change?

Columbia Law School Professor Michael Dorf, wrote an interesting July 18, 2007 article for Find Law entitled "Meet the New Federal Rules of Civil Procedure: Same as the Old Rules?" In this article he outlines the amendments to the FRCP which are scheduled to take effect this December. The FRCP has been extensively overhauled, but the intent was simply to make the rules simpler. With one minor exception, no substantive changes were intended. As Professor Dorf explains, however, these amended rules may wind up making certain changes:

Nonetheless, the increased clarity that the new Rules provide for civil procedure novices may come at the cost of decreased clarity for experienced practitioners. As I explain below, it may not be possible to re-write the law without changing its meaning, and if it is possible, then there is no clear point to the change. Whether the re-styled Rules lead to greater clarity or greater confusion will ultimately depend on how much common sense the courts use in interpreting them.

A copy of the proposed amended rules is available here. Prof. Dorf also follows up with his article on his blog which is available here.

Mitchell H. Rubinstein