NEWSLETTER AND LEGAL UPDATES: Summer 2012

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SUCCESS BASED ON LONG LASTING
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Fanning Harper Martinson Brandt & Kutchin, P.C. is pleased to provide you with our Summer 2012 Newsletter and Legal Update. Below you will find information regarding successes and activities of our attorneys.

Please click the hyperlinks for updates regarding Constitutional/Civil Rights, Local Government, Products Liability, School Law, Commercial Trucking Litigation, Premises Liability, Zoning, Land Use and Taking, and Insurance Law. Please call us with your questions or comments.

VICTORIES AND HONORS

US SUPREME COURT VICTORY

THOMAS BRANDT, JOSHUA SKINNER and DAVID UPHAM successfully represented two elementary school principals before the United States Supreme Court in the famous “Candy Cane” case. The successful outcome was particularly remarkable given the fact that it was obtained against a legal “dream team” which included two former solicitors general of the United States (Paul Clement and Ken Starr), numerous former Attorneys General for the United States, numerous United States Secretaries of education and numerous notable amicus organizations and legal scholars such as the American Center for Law and Justice and Jay Alan Sekulow. The plaintiffs sought review of the case by the Supreme Court in an effort to overturn the decision by the Fifth Circuit granting qualified immunity to two elementary school principals who were accused of preventing elementary school students from distributing religious materials to their classmates at school. The Fifth Circuit, sitting en banc with sixteen judges, held that the principals are entitled to qualified immunity from the lawsuit because the law involving religion and public schools was unclear. The plaintiffs sought Supreme Court review, but the Supreme Court rejected their request. As a result of our victory before the U.S. Supreme Court, we were able to secure dismissal of all of Plaintiffs’ claims against three individual educators.

VICTORY BEFORE THE US. COURT OF APPEALS

THOMAS P. BRANDT, JOSHUA SKINNER and DAVID UPHAM successfully represented a Texas County before the United States Court of Appeals for the Fifth Circuit. The case involved a claim of First Amendment retaliation by a former sheriff’s deputy. The plaintiff brought suit against the county alleging that his employment was
terminated in retaliation for making public comment critical of the county judge. Mr. Skinner orally argued the case before a panel of the Fifth Circuit. The Fifth Circuit panel affirmed the decision of the district court granting summary judgment to the county, concluding that the comments allegedly made by the plaintiff were not protected by the First Amendment.

VICTORY BEFORE THE FORT WORTH COURT OF APPEALS

THOMAS P. BRANDT and JOHN F. ROEHM III successfully represented several City councilmembers and City officials before the Fort Worth Court of Appeals in a case arising out of decisions made regarding a drilling permit. The case was orally argued by Mr. Brandt. The Court of Appeals agreed with our argument that the Plaintiffs lacked standing. As a result, the Court of Appeals affirmed the dismissal of our clients from the case.

JURY TRIAL VICTORIES IN FEDERAL COURT

THOMAS P. BRANDT, JOSHUA SKINNER and JENNIFER KELLEY successfully represented a North Texas county and justice of the peace in a case involving allegations of disability discrimination and FMLA retaliation. Mr. Brandt successfully tried this case before a federal jury with U.S. District Judge A. Joe Fish presiding.

The plaintiff, who had worked for the justice of the peace, claimed that he had been fired because of his disability and because he had taken medical leave under the Family Medical Leave Act (FMLA).

The unanimous jury rejected the plaintiff’s claims that he his employment was terminated based on his disability or medical leave rather than, as the justice of the peace explained, because of his poor performance at work.

ROCKY LITTLE of FHMBK and Charles Hanor of The Hanor Law Firm successfully defended an intellectual property lawsuit in Federal District Court in Dallas. Following a seven-day trial, a unanimous jury found that defendants did not infringe plaintiff’s trademark or trade dress rights under federal law, and also that plaintiffs’ state law claims for unfair competition and “palming off” were without merit. The plaintiff was seeking actual damages along with punitive damages for willful infringement.

DISTRICT COURT VICTORIES

THOMAS P. BRANDT and JOHN HUSTED successfully defeated malicious prosecution claims against a North Texas County prosecutor and another County employee.

THOMAS P. BRANDT and JOHN HUSTED successfully defended a Clerk of the Court of a West Texas County against various civil rights and conspiracy claims brought by a group of over 70 plaintiffs. The plaintiffs alleged that they were descendants of individuals who owned property in the County at the turn of the last century and that the Clerk’s predecessor in interest aided and conspired in the wrongful dispossession of their ancestors’ land. The Court agreed with our arguments and dismissed our clients from the case.

THOMAS P. BRANDT, JOSHUA SKINNER, and JOHN HUSTED successfully represented a North Texas school district, its superintendent, board of trustees and numerous employees against various claims of age and race discrimination, retaliation, and conspiracy brought by a former administrator with the district.

THOMAS P. BRANDT, FRANK VALENZUELA, and LAURA O’LEARY represented a North Texas school district which was sued in state court for various employment related claims, including national origin hostile work environment and retaliation. The school district prevailed on summary judgment on the hostile work environment and retaliation claims.

THOMAS P. BRANDT, JOSHUA SKINNER, and LAURA O’LEARY successfully defeated a challenge to the F-5 termination notice provided to a deputy constable when his employment was terminated by an east Texas county. The deputy constable challenged the official record of his termination maintained by the Texas Commission on Law Enforcement Officer Standards and Education (TCLEOSE), claiming that his employment was terminated in retaliation for reporting official misconduct by the constable rather than, as explained by the constable on the termination form, because of his poor performance at work. The county filed a motion to dismiss the challenge,
which was granted by the administrative judge responsible for overseeing the dispute.

THOMAS P. BRANDT and JOHN F. ROEHM III successfully represented a North Texas County and its Sheriff who were sued in federal court by a jailer for age and sex discrimination and unlawful employment practices. The Sheriff was dismissed from the suit and the court granted summary judgment for the County.

THOMAS P. BRANDT, JOHN F. ROEHM III, and LAURA O’LEARY represented a north Texas School Board President who was sued for business disparagement. We filed a motion for summary judgment which was granted. Plaintiff appealed and we filed a motion to dismiss the appeal which was granted.

SPEECHES, PUBLICATIONS, HONORS AND ANNOUNCEMENTS

Don Martinson published an article in the July 23, 2012 issue of Texas Lawyer entitled The Limited Legacy of Mid-Continent. Click here to read his article.

Thomas Brandt spoke at the Texas Association of School Board Risk Management Fund’s annual member’s conference in Austin, Texas on April 16, 2012. Mr. Brandt spoke about his victory in the famous “Candy Cane” case and about what the victory means for school districts and their officials and employees.

Josh Kutchin presented a two-hour CE program to Horace Mann Insurance Company in Irving, Texas, on August 23, 2012, addressing recent reform efforts in Texas, primarily covering the topics of judicial reform and tort reform. Josh explained that judicial reform has been far more successful in terms of fulfilling the stated goals and that tort reform has largely died on the vine despite an early high-profile push.

Joshua Skinner, John Husted, and Laura O’Leary co-authored a paper entitled “Religion in the Public Square.” The paper was published by the State Bar as part of its 24^th Annual Suing and Defending Governmental Entities Course.

Thomas Brandt spoke on the topic of Religious Liberty at the State Bar’s Annual Suing and Defending Governmental Entities seminar in August on July 26, 2012. Following his address, Mr. Brandt moderated a panel discussion regarding current issues in religious liberty which local governmental entities are facing.

Frank Valenzuela spoke on the topic of the Americans with Disabilities Act before the Texas Municipal League’s Intergovernmental Risk Pool’s Attorney Workshop held in Austin on August 24, 2012.

Joshua Skinner was featured on a podcast for the Federalist Society speaking on the Supreme Court’s recent decision Messerschmidt v. Millender, which turned on the application of the doctrine of qualified immunity to police officers involved in the search of a residence. The podcast is available at http://www.fed-soc.org/publications/detail/messerschmidt-v-millender-post-decision-scotuscast. (March 9, 2012)

Joshua Skinner spoke at the State Bar of Texas Bill of Rights Conference 2012 on May 18 on the topic of “Lawsuits Against the Government.”

Joshua Skinner spoke at the State Bar of Texas Government Law Boot Camp 2012 on July 25 on the topic of “The Basics of Qualified Immunity.”

Laura O’Leary spoke on the topic of “Americans with Disabilities Act – Employment Claims” at the State Bar’s annual “Suing and Defending Governmental Entities” seminar in Austin on July 26, 2012.

Frank Valenzuela spoke on the topic of “Religious Liberty: Current Issues” as part of a CLE seminar. The seminar entitled “Religious Liberty: America’s First Freedom” was held on June 22, 2012 and sponsored by the St. Thomas More Society, Catholic Lawyers Guild.

Frank Valenzuela spoke on the topic of “Religion in Schools: Morgan v. Swanson and Hosanna Tabor” at a luncheon CLE presentation at the Belo Mansion on February 2, 2012.

Frank Valenzuela and Laura O’Leary co-authored the paper titled “Americans with Disabilities Act – Employment Claims.” Ms. O’Leary presented the paper at the State Bar of Texas’ Suing and Defending Governmental Entities conference. (July 26-27, 2012)

Frank Valenzuela spoke to Terrell Independent School District on “Social Media Issues – Virtual Friends/Real Problems in Schools” on April 2, 2012.

Frank Valenzuela was featured on a podcast for The Federalist Society about the U.S. Supreme Court’s Filarsky v. Delia case which concerns qualified immunity issues. The podcast is available at http://www.fed-soc.org/publications/detail/filarsky-v-delia-post-decision-scotuscast-2. (August 14, 2012)

Frank Valenzuela appeared on CBS 11 Television news on May 21, 2012. Frank
was interviewed about the lawsuits which had just been filed by the Dallas Diocese and 42 other Catholic entities seeking to enjoin enforcement of the HHS mandate.

Frank Valenzuela made numerous appearances and presentations to various local community groups regarding legal issues involved with the Supreme Court’s decision regarding Obamacare and the litigation involving the controversial HHS mandate. These include the following:

Appeared on the “Good News” radio show on KATH 910 AM to discuss the Supreme Court’s Obamacare decision and what impact it would have on the currently pending HHS mandate litigation. (July 2, 2012)
Appeared on the “Good News” radio show on KATH 910 AM to discuss the HHS mandate and the lawsuits challenging it. (February 27, 2012)
Gave a presentation to the St. Basil Society of the University of Texas Southwestern Medical School “The HHS Contraception Mandate and the Legal Challenges.” (March 21, 2012)
Appeared on the “Good News” radio show on KATH 910 AM to discuss 12 recently filed lawsuits concerning the HHS contraception mandate. (June 4, 2012)
Spoke at the Diocese of Dallas’ diocese-wide Fortnight for Freedom event. Frank addressed religious freedom issues concerning the recent HHS mandate. (June 30, 2012)
Spoke at a Fortnight for Freedom event at Mater Dei Catholic Church and addressed religious freedom issues concerning the recent HHS mandate. (July 1, 2012)
Spoke at the Diocese of Dallas’ Catholic Pro-Life Committee’s Pro-Life Boot Camp on July 30, 2012. Frank spoke with high school students about the HHS mandate and religious freedom issues.

This newsletter is established for informational purposes only. Nothing in this newsletter should be construed as individual advice, and the use of the e-mail link for communications with the firm or any individual member of the firm does not establish an attorney-client relationship.