Texas Lawyer Blog

En banc 5th Circuit will rehear controversial immigration case involving Farmers Branch ordinance

Today, the 5th U.S. Circuit Court of Appeals granted en banc review to Reyes, et al. v. City of Farmers Branch. The case involves a 2008 city ordinance that requires people to provide proof of citizenship before they can rent a residence in the Dallas suburb.

In 2010, a trial court judge found the ordinance unconstitutional because it was local "regulation of immigration" entrusted to Congress by the Constitution and therefore was pre-empted under the Supremacy Clause.

In a 2-1 decision on April 9, a 5th Circuit panel affirmed the trial court's ruling. Senior Judge Thomas Reavley, in a majority decision joined by Judge James Graves, wrote that the sole purpose of ordinance was to remove illegal immigrants from the city, which “contravenes the federal government's exclusive authority over the regulation of immigration and the conditions of residence in this country . . .”

Judge Jennifer Elrod concurred and dissented, writing that Supreme Court and 5th Circuit precedent should have yielded a different result. She wrote that, while the ordinance "no doubt concerns illegal immigrants, it is simply not a regulation of immigration as defined by the Supreme Court. . . ."

 --- John Council 

Supreme Court will hear oral argument in Fisher v. University of Texas at Austin, et al. in October

The U.S. Supreme Court is scheduled to hear oral arguments in Fisher v. University of Texas at Austin, et al. on Oct. 10, according to a court calendar posted July 23. On Feb. 21, the court announced that it would grant Abigail Fisher’s petition for writ of certiorari; Fisher claims she was denied admission to UT in 2008 and that racial considerations by UT admissions officials disadvantaged her.

In her merits brief to the high court, Fisher alleges that UT’s admissions policies — which take into account the race of applicants other than those automatically admitted because they were in the top 10 percent of their public high school class — violate the equal protection guarantee of the 14th Amendment. The "10 percent" plan began in 1998, and race was added as a "special circumstance" factor in 2004, after the high court issued its decision in Grutter v. Bollinger, permitting racial considerations in admissions for the purposes of achieving diversity at a public school, the University of Michigan School of Law.

In Fisher, UT defendants prevailed on Aug.7, 2009, before U.S. District Judge Sam Sparks of the Western District of Texas in Austin. The 5th U.S. Circuit Court of Appeals affirmed his ruling on Jan. 18, 2011.

Fisher and 17 amici have submitted briefs to the high court on her behalf. The university defendants must file their merits brief by Aug. 6, and amici for the defendants must file their briefs by Aug. 13, according to the website for UT’s Vice President for Legal Affairs Pat Ohlendorf.

"We think our brief will cover the issues and be very persuasive," says Ohlendorf.

Bert Rein, a partner in Washington, D.C.'s Wiley Rein, who represents Fisher, says he "looks forward to reading it."

Latham & Watkins partners Gregory Garre and J. Scott Ballenger and of counsel Maureen Mahoney have been hired to represent the university 
 
-- Miriam Rozen

Good news for some of the lawyers who couldn’t e-file yesterday

The state’s court-document electronic-filing system at Texas.gov is working again this morning, after a system upgrade this weekend caused an unexpected outage on Monday.

Texas Supreme Court spokesman Osler McCarthy says many “anxious lawyers” called the clerk’s office yesterday and said, “Oh my god, I’m trying to file . . . and it won’t take it.”

Erin Hutchins, director of portal operations for Texas.gov, says her company, Texas NICUSA, worked with e-filing service providers and Texas counties “through the night and into the morning” to undo the upgrade and return to the old system.

“Filings are processing this morning on the old system. We’ve had close to 400 at this point,” she says.

Hutchins says Texas NICUSA completed tests with e-filing service providers and counties before doing the upgrade. But when the company switched the e-filing system to the upgraded infrastructure, there were “communication issues” between different parts of the system and “people couldn’t log in.”

She says Texas NICUSA will continue investigating, complete more tests, and coordinate with counties and e-filing service providers to determine a “methodical way” to implement the upgrade. She doesn’t yet know when that will happen.

“We appreciate their patience with us, and again, we appreciate the work the EFSPs did, and the counties did. . . . We will continue to keep them up-to-date and provide the best service we can,” says Hutchins.

As to all those anxious lawyers who tried to file with the Supreme Court yesterday, McCarthy says, “We know what was due yesterday, and we will take on good faith they were trying to file to make the deadline when the system was down, and take it [the filing] today with that in mind.”

-- Angela Morris

San Antonio Bar Association wins national award for Community Justice Program

San Antonio Bar Association president Gary W. Hutton (pictured) says he hopes winning a national pro bono award will help the association to attract grant funding for its legal-aid program.

The American Bar Association is giving the 2012 Harrison Tweed Award to the San Antonio Bar for its Community Justice Program (CJP), which offers civil legal clinics for indigent Texans. Hutton and CJP leaders will accept the award on Aug. 3 at the ABA Annual Meeting in Chicago.

“We’re excited. Any time you get that kind of national recognition, it’s obviously really good for the program,” Hutton says. He thinks the CJP winning the award is “indicative of the work the San Antonio lawyers put into pro bono efforts.”

The CJP is a partnership between the San Antonio Bar and Texas RioGrande Legal Aid. Hutton explains the 10-year-old program involves multiple monthly legal clinics that bring together volunteer lawyers, judges, district-clerk personnel, bailiffs and notaries.

“Everything you need to transact business is handled. . . . It’s a great coordination effort,” Hutton says.

Robert Stein, chairman of the ABA’s Standing Committee on Legal Aid & Indigent Defendants, says the committee chose the San Antonio Bar to receive the award because the CJP is a collaborative effort between a bar association and a local legal-aid provider, it serves people well by offering evening-hours clinics and it successfully encourages lawyers to volunteer year after year.
 
“Things like that seemed to us to make a program that would both serve people well and could be a model for programs in other places: in Texas and outside. Those were things we found very attractive,” says Stein.

The committee and the National Legal Aid and Defender Association give the award to state and local bar associations that develop or expand programs to increase indigent legal aid and criminal-defense services, according to the ABA website.

-- Angela Morris 

Morning docket

Feds: Prosecutor bribed Texas judge to stop probe (Associated Press)

DA's Office asks for more time to hand over e-mails in Stern case (KHOU)

Law Schools Bargain with Students to Fill Seats (The Wall Street Journal Law Blog)

Appeals Court Rules Heat Can Violate Prisoner Rights (The Texas Tribune)

State fire marshal pledges to assist in innocence review of old arson cases (Grits for Breakfast)

State panel commends Tarrant crime lab for self-reporting problem (Fort Worth Star-Telegram)

Senate Blocks Tenth Circuit Nominee; Could Be Last Such Vote Until After Election (The BLT: The Blog of LegalTimes)

Poll: Majority fail SCOTUS quiz (Politico)

-- Angela Morris

Court document e-filing system experiencing technical difficulties

The court document electronic-filing system through Texas.gov is experiencing issues today after being down for a system upgrade over the weekend.

David Slayton, administrative director of the Texas Office of Court Administration, says some e-filed documents are entering the system and will be file-stamped, but not all e-filed documents are able to enter the system. "The filer will know that," he says, because the system will give them an error message.

Slayton says he has been communicating frequently with the vendor that runs the e-filing system, Texas NICUSA, but he’s unsure when the system will be working again.

“They’re still trying to identify what the issue is and get it corrected,” Slayton says.

Erin Hutchins, director of portal operations for Texas.gov, writes in an email: “We have all ‘hands on deck’ working now to resolve what is, in short, an issue that impacts login. Until it is resolved, it is impossible to eFile. . . . In the meantime, we have made court personnel aware of the eFiling issues. So, any lawyer or litigant that needs to complete a filing should 1) use the paper process if it is available; or 2) contact the court for further instructions.”

-- Angela Morris

Haynes and Boone's fast-track program brings first-year law students to Dallas for one-week introduction

Haynes and Boone associate Dawud Crooms (pictured) says he was skeptical when he was a law student and first heard in 2008 about the Dallas-based firm’s one-week summer initiative for 1Ls.

“It was a kind of strange, unique program, and no one had ever heard of it,” he says.

The firm launched what it calls the 1L fast-track program that year as a way to introduce itself and the city of Dallas to top law students from around the country.

This week, the firm is welcoming 24 first-year students to its Dallas office for its 2012 fast-track week. New Jersey native Crooms, a December 2009 graduate of the University of Michigan Law School, says he would not have ended up at the firm without the program.

“Not a chance,” he says. “Zero percent chance, primarily because I was at a national school and, not being from the Dallas area, had not heard of Haynes and Boone before.”

During the fast-track week in 2008, Crooms says he joined about 25 other 1Ls touring the city, having dinners in the homes of the firm’s lawyers and working on a pro bono project.

“I stayed for two to three days afterward with my wife to go around the city and get a feel for the city,” he says.

He returned to the firm's Dallas office as a summer associate in 2009 and a full-time associate in April 2010, after graduating from law school.

“Fast-tracking is unquestionably the reason I came back to Haynes and Boone as a 2L,” he says. “The fast track was absolutely the reason I ended up in Dallas.”

Now, as a second-year associate with the firm’s corporate/securities group, Crooms is a member of the firm’s fast-track committee.

His advice for the 1Ls spending the week with the firm?

“Focus less on how people treat you and more on how the attorneys treat each other,” he says. “Everyone is nice to you because you’re the focus of the week. You get a better feel about the firm by seeing how they treat each other.”

— Jeanne Graham

5th Circuit says world-class trash talking not enough to prove sex discrimination

There are plenty of ways to prove employment discrimination in the workplace, but apparently evidence that a construction supervisor is a “world-class trash talker and the master of vulgarity” is not enough to substantiate allegations of same-sex discrimination, according to a recent 5th U.S. Circuit Court of Appeals decision.

The background to the July 27 decision in Equal Employment Opportunity Commission v. Boh Brothers Construction Co. is as follows. In 2009, the EEOC brought an enforcement action against Boh Brothers in an Eastern District of Louisiana trial court, alleging sexual harassment and retaliation under Title VII. Specifically, Kerry Woods, a male construction worker on an all-male crew, claimed that his supervisor, Charles “Chuck” Wolfe of Boh Brothers, engaged in “same-sex” harassment against Woods by referring to him in raw homophobic epithets. The defendant denied the allegations. A jury found in the plaintiff’s favor on the harassment claim and in the defendant’s favor on the retaliation claim. The jury awarded Woods $450,000 in damages, a judgment that Boh Brothers appealed.

“There is no claim or evidence that either Woods or Wolfe is homosexual or effeminate. There is plenty of evidence that Wolfe is a world class-trash talker and the master of vulgarity in an environment where these characteristics abound,” wrote Judge E. Grady Jolly. “And there is Wolfe’s accusation that Woods was girlish because Woods used ‘Wet Ones’ when he went to the toilet. But that seems to be about all of the non-manly characteristics of which Woods was accused.”

The 5th Circuit reversed the jury’s verdict, finding that the evidence is insufficient to support the jury’s verdict that Woods was discriminated against because of sex.

“There is the question raised in this appeal whether sex stereotyping is a cognizable form of same-sex harassment under Title VII. As the facts allow for resolution on narrower grounds, we leave that question for another day,” Jolly concluded.

Paul Ramshaw, an attorney with the EEOC who argued the case on appeal, says the agency has not yet decided whether to ask for rehearing in the case. Walther Christy, a director in the New Orleans office of Coats, Rose, Yale, Ryman & Lee, could not be reached for comment.

--- John Council

Morning docket

Judge orders DA’s office to hand over e-mails in Stern civil case (KHOU)

Endorsements point to sharp differences in state Supreme Court hopefuls (Austin American-Statesman)

Appeals court halts execution over competency issue (Houston Chronicle)

A Tragic Accident and a Continuing Legal Battle (The Texas Tribune)

Forensic Science Commission ends investigation into Austin police crime lab (Austin American-Statesman)

The Next Debt Crisis (The Am Law Daily)

Startup Floats Cloud Storage for Lawyers (Law Technology News)

-- Angela Morris

This week in Texas Lawyer

All hands on deck: Houston lawyer Daniel Pipitone (pictured) looks back on 30 years of work with one client. Senior reporter Brenda Sapino Jeffreys talks with him and company leaders who have known him for decades. BONUS: Video.

The lawyer strikes back: If your clients sue plaintiffs lawyers, you just might wind up as a defendant. Senior reporter John Council speaks with one lawyer who did.

Un-bear-able: A law school applicant has filed an age discrimination suit against Baylor University. Reporter Miriam Rozen has more.

Lawyer sued: A Houston businessman and his company have filed a negligence and breach of fiduciary duty suit against solo Ronald J. Waska, alleging they hired him to file a “legal malpractice” suit against Winstead, but Waska failed to do so in a timely fashion. Senior reporter Brenda Sapino Jeffreys has the story.

Grave consequences: Houston's 14th Court of Appeals finds that a cemetery was not abandoned. Senior reporter John Council talks with Matt McCormick (pictured) about the win.

Fighting an effort to sever: An East Texas patent fight between Lodsys and a host of major IT players could have major implications for plaintiffs and defendants.

Greatest hits: The top 20 stories of 2012 (so far) on texaslawyer.com.

Deal of the week: Lawyers from Texas and around the country are involved in NRG Energy’s acquisition of GenOn Energy.

Appellate lawyer of the week: A San Antonio solo saved the day for his client when he defeated a federal declaratory judgment ruling from a judge known for rarely being reversed.

Law tech: The once-ubiquitous BlackBerry is losing space at the fruit stand to Apple and other smartphones.

Insurance law: Joe K. Longley examines the effect of eroding limits on Tilley counsel.

Appellate law: Don’t wait too long to think appellate strategy — that means before the trial, say R. Brent Cooper and Diana L. Faust.