NATIONAL ANTHEM PROTEST BANNED AT LOUISIANA SCHOOL—BUT IS IT LEGAL?

www.newsweek.com/louisiana-high-school-orders-athletes-stand-during-anthem-it-legal-673756

​US Court of Appeals for the Fifth Circuit Opinions
United States v. Moss

Docket: 16-30561
Opinion Date: September 27, 2017
Judge: Edith H. Jones
Areas of Law: Criminal Law, Admiralty & Maritime Law

The Fifth Circuit affirmed the district court's dismissal of the Outer Continental Shelf Lands Act (OCSCLA), 43 U.S.C. 1331 et seq., charges against the contractor defendants for failure to state an offense. The court assumed arguendo that section 1350(c) may expose contractors and subcontractors to criminal liability and held that the regulations did not apply to nor do they potentially criminalize defendants' conduct. The court also held that regulations that were specifically directed at lessees and permittees did not extend penalties to contractors and individuals; because the applicable regulatory definitions unambiguously exclude contractors, more general liability provisions did not control; and no prior judicial decision countenanced this action, which was at odds with a half century of agency policy.

​This Louisiana law is causing a dramatic drop in the number of tenured school teachers

www.theadvocate.com/baton_rouge/news/education/article_d14ea6a2-a0a3-11e7-b28c-b377d642cc7a.html

​US Court of Appeals for the Fifth Circuit Opinions
Mainali Corp. v. Covington Specialty Insurance Co.

Docket: 17-10350
Opinion Date: September 21, 2017
Judge: Costa
Areas of Law: Contracts, Insurance Law

Mainali filed suit against Covington for breach of contract, breach of the duty of good faith and fair dealing, fraud, and violations of the Texas Insurance Code and Texas Deceptive Trade Practices Act. The Fifth Circuit affirmed the district court's grant of summary judgment for Covington on all of Mainali's claims. The court rejected Mainali's contention that the appraisal award was incomplete because it excluded damage to items covered by the policy where Mainali cited nothing in the record to show that these items were not included. The court also held that Covington did not violate the Prompt Payment of Claims Act where Covington was not trying to avoid payment of the claim; it was invoking a contractually agreed to mechanism for assessing the amount it owed.

​US Court of Appeals for the Fifth Circuit Opinions
United States v. Kiekow

Docket: 14-40700
Opinion Date: September 19, 2017
Judge: Carl E. Stewart
Areas of Law: Criminal Law

The Fifth Circuit affirmed Defendant Kiekow, Uriarte, and Pierre's convictions for conspiracy to distribute or possess with intent to distribute cocaine. The court affirmed the denial of Pierre's motion for a new trial; affirmed Uriarte's sentence; but vacated Kiekow's sentence. The court held that the district court plainly erred by applying a two-level sentencing enhancement for maintaining a premises for the purpose of manufacturing or distributing a controlled substance under USSG 2D1.1(b)(12) (2012), because this enhancement did not exist during the period of the conspiracy, which ended around 2009. Rather than having an exposure of 97-121 as a level 30 offender, Kiekow faced a minimum exposure of 121 months and maximum exposure of 151 months as a level 32 offender. Because the plain error affected Kiekow's substantial rights by imposing a significant risk of a higher sentence, the court remanded for resentencing.

​11 things you need to know in Louisiana state news today (Sept. 20)

www.nola.com/politics/index.ssf/2017/09/louisiana_politics_sept_20_201.html
​

Supreme Court of Louisiana Opinions

Louisiana v. King

Docket: 2015-KP-1283
Opinion Date: September 18, 2017
Judge: Jefferson D. Hughes, III
Areas of Law: Constitutional Law, Criminal Law

Defendant Calvin King was tried by jury and convicted of second degree murder and armed robbery following the 2007 death of Javier Sanchez. The issue this case presented involved the trial court’s grant of a motion for new trial on the basis that the verdict was contrary to the law and the evidence pursuant to Louisiana Code of Criminal Procedure article 851(1). Defendant filed a motion for new trial, which focused on inconsistencies in the evidence presented to the jury, arguing that the testimony of the one eyewitness contained internal inconsistencies and was at least partially irreconcilable with the physical evidence. The trial court granted the motion, ordering a new trial for the defendant. The appellate court reversed. When a motion for a new trial is granted pursuant to Louisiana Code of Criminal Procedure article 851(1), the Louisiana Supreme Court held there is no threshold requirement that the trial court make a finding that an injustice has been done to the defendant that is reviewable as a matter of law. Nor may the court of appeal or the Supreme Court review the findings of fact of the trial court in granting such a motion based on the constitutional prohibition of the appellate courts reviewing factual findings in a criminal case. The Supreme Court reversed the appellate court’s judgment and the trial court judgment granting defendant’s motion for a new trial was reinstated.

​Louisiana Supreme Court Opinions
Louisiana v. Thompson

Docket: 2015-K-0886
Opinion Date: September 18, 2017
Judge: John L. Weimer
Areas of Law: Civil Procedure, Government & Administrative Law

During his second term as mayor of Jonesboro, the state filed a bill of information charging defendant Leslie Thompson with three counts of malfeasance in office by failing and/or refusing to maintain proper records and to supply them to the Louisiana Legislative Auditor; by taking public funds of the town to pay for retirement benefits for employees who were not eligible to participate in the Municipal Employee’s Retirement System; and by using public funds to pay for health insurance premiums for former employees. After reviewing the evidence, the Louisiana Supreme Court concluded the evidence was sufficient to find defendant guilty beyond a reasonable doubt as to Count I of the malfeasance in office charge; however, as to Counts II and III, the Court found no rational trier of fact could have found defendant guilty beyond a reasonable doubt. Pretermitting all other assignments of error, the Court additionally found the district court erred in denying defendant’s motion for a mandatory mistrial after the prosecutor directly referenced race in a comment before the jury that was neither material nor relevant and that could create prejudice against defendant in the minds of the jury members. Accordingly, the Court vacated defendant’s convictions and sentences, and remanded this case to the district court for further proceedings.

​US Court of Appeals for the Fifth Circuit Opinions
Adams and Associates, Inc. v. NLRB

Docket: 16-60333
Opinion Date: September 15, 2017
Judge: James Earl Graves, Jr.
Areas of Law: Labor & Employment Law

Adams and MJLM petitioned for review of the Board's order holding them liable for unfair labor practices in violation of the National Labor Relations Act, 29 U.S.C. 151 et seq. The Fifth Circuit denied the petition for review and granted the Board's cross-application for enforcement, holding that the record contained substantial evidence of antiunion animus; Adams's unilateral imposition of initial terms and conditions of employment violated the Act; the Board did not err in ordering Adams to recognize the union as the bargaining representative for the Residential Coordinators; the Board did not err in finding that Adams violated the Act by refusing to grant the union president access to the collective bargaining sessions; and the Board's finding that Adams and MJLM were joint employers was supported by substantial evidence.

​US Court of Appeals for the Fifth Circuit Opinions
Lyles v. Medtronic, Inc.

Dockets: 16-30517, 16-31044
Opinion Date: September 11, 2017
Judge: Keith Starrett
Areas of Law: Personal Injury, Products Liability

Plaintiff filed suit against MSD in Louisiana state court under the Louisiana Products Liability Act for both the Atlantis Plate and an Infuse Bone Graft Device that was surgically implanted in his body. The Eighth Circuit affirmed the district court's grant of summary judgment on claims dealing with the Atlantis Plate, holding that the district court did not create manifest error by considering the malpractice complaint and that plaintiff did not meet his burden under the res ipsa loquitur doctrine. The court also affirmed the district court's denial of plaintiff's motion under Federal Rule of Civil Procedure 60, holding that the district court did not abuse its discretion in concluding that plaintiff and his attorney did not exercise due diligence in pursuing the discovery of documents dealing with the Verte-Stack or Progenix, and that MSD's actions in answering plaintiff's interrogatory and production request were in good faith.

​US Court of Appeals for the Fifth Circuit Opinions
Burgess v. FDIC

Docket: 17-60579
Opinion Date: September 7, 2017
Judge: Priscilla R. Owen
Areas of Law: Banking

The Fifth Circuit granted movant's motion to stay the FDIC's order assessing a civil penalty against movant pending the resolution of the merits of the petition for review or further order of the court. Movant alleged, among other things, that the FDIC ALJ was an inferior "Officer of the United States" who holds his office in violation of the Appointments Clause. The court held that movant has established a likelihood of success on the merits of his Appointments Clause challenge, that irreparable harm would result absent a stay, and that both the balance of hardships and the public interest favor a stay.

​United States v. Guerrero

Docket: 16-41199
Opinion Date: September 6, 2017
Judge: Stephen Andrew Higginson
Areas of Law: Criminal Law

The Fifth Circuit denied defendant's motion to proceed in forma pauperis and dismissed his appeal as frivolous. Defendant asked the district court to reduce his sentence further according to Amendment 794 and challenged the district court's certification that his appeal was not taken in good faith. The court held that because Amendment 794 was not listed in USSG 1B1.10(d), the district court correctly determined that this amendment did not make defendant eligible for any sentencing reduction.

​US Court of Appeals for the Fifth Circuit Opinions
Maurer v. Independence Town

Docket: 16-30673
Opinion Date: September 5, 2017
Judge: Costa
Areas of Law: Civil Rights, Constitutional Law, Labor & Employment Law

The Fifth Circuit reversed the district court's grant of summary judgment to the town in plaintiff's action alleging that he was entitled to notice and an opportunity to respond before being terminated as fire chief. The court held that the evidence was sufficient to preclude summary judgment on the question whether plaintiff was a member of the Louisiana civil service and entitled to due process before losing his job. The court remanded for further proceedings.

​Stemcor USA Inc. v. Cia Siderurgica do Para Cosipar

Docket: 16-30984
Opinion Date: September 1, 2017
Judge: Stephen Andrew Higginson
Areas of Law: Civil Rights, Admiralty & Maritime Law, Real Estate & Property Law

Daewoo filed suit against AMT, seeking an order compelling AMT to arbitrate an attachment of pig iron, invoking both maritime attachment and the Louisiana non-resident attachment statute, La. Code Civ. Proc. art. 3542. After the district court's grant of Daewoo's attachment, TKM attached the same pig iron in Louisiana state court and intervened in the federal suit. The district court agreed with TKM and vacated Daewoo's attachment. The Fifth Circuit vacated, holding that Section 3502 allowed Daewoo to seek a Section 3542 attachment before commencing its confirmation proceeding, Daewoo followed Section 3502's requirements, and thus Daewoo's attachment was valid. The court remanded for further proceedings.

​US Court of Appeals for the Fifth Circuit Opinions
Lewis v. Secretary of Public Safety & Corrections

Docket: 16-30037
Opinion Date: September 1, 2017
Judge: Priscilla R. Owen
Areas of Law: Criminal Law

The Fifth Circuit affirmed the district court's grant of summary judgment to defendants in an action under 42 U.S.C. 1983, alleging that plaintiff was subjected to unconstitutional strip searches while incarcerated at the Winn Correctional Center (WCC). In this case, the policies at issue were aimed at preventing the flow of contraband from the outside truck drivers and others to inmates in the Garment Factory and to the main prison, as well as to prevent the removal of items from the Garment Factory that could be used as weapons. The court held that plaintiff failed to rebut this reasonable justification of the strip and visual body searches and thus the district court did not err in granting summary judgment to defendants. The court also held that the LaDPSC and CCA internal rules and regulations did not alone create federally-protected rights and a prison official's failure to follow prison policies or regulations did not establish a violation of a constitutional right; rejected plaintiff's various challenges to discovery; and held that the district court did not abuse its discretion by dismissing the complaint against three named defendants based on failure to serve them properly.