Texas Federal Judge Halts Gay-Friendly Medical Leave Rule Change

March 27, 2015
By David Lee
WICHITA FALLS, Texas (CN) – A Texas federal judge halted implementation of a Department of Labor rule forcing anti-gay marriage states to recognize same-sex couples married in other states.
U.S. District Judge Reed O’Connor granted Texas’ motion for a preliminary injunction on Thursday.
The state sued the Labor Department on March 19, claiming its extension of Family and Medical Leave Act benefits to same-sex couples would violate the Texas Constitution because it redefines the definition of a “spouse .”
Arkansas, Louisiana and Nebraska have joined the lawsuit.
Texas voters banned gay marriage when they approved a constitutional amendment in November 2005, defining marriage as being between a man and woman.
Scheduled to begin Friday, the Department of Labor’s rule requires employers to allow the same FMLA leave rights given to heterosexual couples. Under the FMLA, eligible employees can take up to 12 weeks of unpaid, job-protected leave each year for family or medical reasons, including family emergencies or childbirth.
Texas Attorney General Ken Paxton claimed the rule violates the Supreme Court ruling in United States v. Windsor, which “struck down federal interference with state law governing domestic relations.”
Judge O’Connor concluded the states have “met their burden” to show the public interest supports the injunction.
“The court recognizes the burden that individuals requesting spousal leave encounter, and this order does not prohibit employers from granting leave to those who request leave to care for a loved one,” the 24-page opinion states. “However, a preliminary injunction must issue to prevent the Department from mandating enforcement of its Final Rule against the states. The public maintains an abiding interest in preserving the rule of law and enforcing the states’ duly enacted laws from federal encroachment.”
O’Connor found the states demonstrated a “substantial likelihood of success” on their claims that the rule violates the full faith and credit statute.
“The [statute] affirms Congress’ intention to reserve the power to define marriage and accompanying rights and benefits to the states, and Windsor cabins Congress’ authority to aggrandize that power,” the opinion states.
“Thus, Congress could not have delegated to the Department the power to define marriage in a way as to override the laws of states prohibiting same-sex marriages. For the foregoing reasons, plaintiffs have shown the Final Rule is likely to be found to be contrary to the statute.”
Paxton applauded the ruling, saying the Obama administration is forcing Texas agencies to either violate state law or federal regulation.
“We are pleased that the Department of Labor’s effort to override our laws via federal rulemaking has been halted, and we will continue to defend our sovereignty in this case,” Paxton said in a statement Thursday.
Department of Justice spokeswoman Nicole Navas said Friday that the agency is reviewing the opinion.

From Courthouse News.

Texas Sues Federal Government Over Gay-Friendly Labor Rules

March 19, 2015
By David Lee
WICHITA FALLS, Texas (CN) – Texas sued the United States on Wednesday, challenging Department of Labor rules that would make it recognize same-sex couples who were married in another state.
Attorney General Ken Paxton claims that extending Family and Medical Leave Act benefits to same-sex couples would violate the Texas Constitution.
Paxton sued the United States and the Department of Labor in Federal Court.
Texas voters banned gay marriage via a constitutional amendment in November 2005, defining marriage as between a man and woman.
The Department of Labor recently changed its rule defining what a spouse is under the FMLA to recognize same-sex unions from out-of-state. Set to begin on March 27, the rule requires employers to allow the same FMLA leave rights given to heterosexual couples.
Enacted in 1993, the FMLA allows eligible employees to take up to 12 weeks of unpaid, job-protected leave per year for family or medical reasons, including family emergencies or childbirth.
“By attempting to sideline Texas law by agency rule and require Texas employers grant FMLA spousal care benefits to individuals in relationships not recognized as marriage in Texas, the Department’s action flies in the face of the Supreme Court’s ruling in [United States v.] Windsor, which struck down federal interferences with state law governing domestic relations,” Paxton’s lawsuit states.
“The rule is also contrary to the federal full faith and credit statute, invalidly attempts to abrogate the states’ sovereign immunity and invalidly attempts to preempt Texas domestic-relations law.”
Earlier versions of the rule defined a “spouse” as “a husband or wife” defined under state law “for purposes of marriage in states where it is recognized,” Texas says.
It claims the federal full faith and credit statute gives Texas the right to disregard same-sex marriages under state policy, but the new rule forces the state’s employers to acknowledge them.
Texas claims the rule “places an enormous burden” on employers to decide on same-sex couple leave requests that have been made without the guidance of the U.S. Supreme Court or 5th Circuit.
U.S. District Judge Orlando Garcia in San Antonio struck down the state’s gay marriage ban in February 2014. The case is on appeal.
“Employers in Texas will be called upon to decide issues that the Supreme Court has not yet decided, and those employers do so without the benefit of briefing and oral arguments for the full presentation of the issues on both sides,” Paxton’s complaint states.
Paxton said the lawsuit is about “defending the sovereignty of our state” against the “unlawful overreach” of the federal government.
“The newly revised definition of ‘spouse’ under the FMLA is in direct violation of state and federal laws and U.S. Constitution,” Paxton said in a statement. “Texans have clearly defined the institution of marriage in our state, and attempts by the Obama Administration to disregard the will of our citizens through the use of new federal rules is unconstitutional and an affront to the foundations of federalism.”
Texas seeks temporary and permanent injunctions, and declaratory judgment under the Administrative Procedure Act.

From Courthouse News.

Alumni of Shamed OU Fraternity Hire Attorney

March 16, 2015
By David Lee
NORMAN, Okla. (CN) – The racist chants of Sigma Alpha Epsilon fraternity members at the University of Oklahoma are “seriously flawed,” but its members have constitutional rights that cannot be violated in a “rush to judgment,” an attorney for SAE alumni said.
The 9-second video posted to YouTube on March 8 shows fraternity members on a bus chanting “there will never be a nigger in SAE.”
Condemnation was swift. University of Oklahoma officials expelled two members and threw the rest out of the fraternity house.
Attorney Stephen Jones, with Jones Otjen & Davis in Oklahoma City, said at a news conference Friday that he was hired by members of the local chapter’s board of directors and does not represent the expelled students.
Jones said the fraternity has been unfairly “painted” with a “tar brush as bigots.”
“There are issues about First Amendment rights, due process rights and real estate issues, but we are still gathering documents,” Jones said.
Jones declined to say whether a lawsuit against the school was imminent, expressing hope for a solution without litigation.
He said the bus where the video was recorded was on its way to a Founder’s Day party at an Oklahoma City country club on March 7.
“We are talking about one incident with nine seconds of video, on one of five buses,” Jones said.
Members of the OU SAE chapter have received death threats since the video was posted and are afraid to go to class, Jones said.
“We believe that working together in a positive manner we can find a solution that is acceptable to everyone and make this a teachable moment and an educational moment for what is a seriously flawed incident,” he said.
Evanston, Ill.-based SAE said Friday that the national organization was not involved in hiring Jones and has “no further information about his intentions.”
“Our priority now remains squarely focused on making sure we continue to proactively address this issue in a way that reflects our zero-tolerance for any kind of discrimination and upholds the values of our fraternity,” SAE said in a statement.
The American Civil Liberties Union of Oklahoma expressed sentiments similar to Jones, saying OU “must also respect First Amendment principles that are central to the mission” of every school.
“Any sanction imposed on students for their speech must therefore be consistent with the First Amendment and not merely a punishment for vile and reprehensible speech; courts have consistently and rightly ruled as such,” the ACLU said in a statement Thursday. “Absent information that is not at our disposal, it is difficult to imagine a situation in which a court would side with the university on this matter.”
Jones previously defended Oklahoma City federal building bomber Timothy McVeigh.

From Courthouse News.

NFL Loses Super Bowl Ticketholder Lawsuit

March 12, 2015
By David Lee
DALLAS (CN) – The National Football League breached contracts by failing to provide Super Bowl XLV ticketholders correctly installed unobstructed seats, but did not commit fraud, a federal jury ruled Thursday.
The eight-person jury ordered the NFL to pay seven plaintiffs for breaching the terms of their game tickets – each will receive $5,600 to $22,000.
The jury was not persuaded to rule in favor of two plaintiffs who claimed the NFL committed fraudulent inducement.
Several hundred ticketholders to the 2011 game between the Pittsburgh Steelers and Green Bay Packers at Cowboys Stadium sued the league.
They claim that many temporary seats were not installed by kickoff and that fans were taken outside the stadium or given seats with obstructed views. They dispute NFL claim that it offered them equitable compensation, because they it not cover all their expenses or their frustration at the experience.
The seven ticketholders, represented by Michael Avenatti, with Eagan Avenatti in Newport Beach, Calif., were the first to take the NFL to trial. Avenatti said his clients have “waited four long years for vindication.”
“Any effort by the NFL spin machine to now claim victory in this case is nothing short of putting lipstick on a pig,” Avenatti said after the verdict.
NFL attorney Thad Behrens, with Haynes Boone in Dallas, disagreed. He told reporters the league is “pleased” with the verdict.
“We appreciate the time and attention the jury paid in this case,” Behrens said. “We are pleased because the NFL did not defraud any of its fans.”
During the two-week trial, NFL attorneys told jurors the league accepted responsibility for the problems from the beginning and that the issue is only how much of the plaintiffs’ expenses the league should pay.
NFL Commissioner Roger Goodell testified in a video deposition that the league “accepts responsibility” for the seating failures.
U.S. District Judge Barbara M.G. Lynn said she would give plaintiffs’ attorneys until March 18 to subpoena Scott Suprina, president of seating contractor Seating Solutions.
Before jury deliberation began Wednesday, Suprina told ESPN.com that the NFL had pressured him before trial not to throw it “under the bus,” in exchange for the reinstatement of a multimillion-dollar furniture-licensing deal.
Avenatti asked the judge on Wednesday to halt the jury’s deliberations or declare a mistrial based on the allegations.
“Suprina alleges that the NFL successfully influenced his testimony through the promise of financial gain (aka witness tampering),” the plaintiffs’ motion for subpoena stated.
“As the court is well aware, Mr. Suprina was the very first witness called by the NFL in its case in chief and is one of two primary witnesses the NFL relies on to prove that the NFL did not engage in fraud as it relates” to two of the plaintiffs, the motion said.
The verdict came two days after Dallas Cowboys owner Jerry Jones faced tough questions on the witness stand about whether his quest to set the Super Bowl attendance record at the game affected the displacement of fans.
The Cowboys and Jones are no longer parties to the lawsuit.
In a separate lawsuit in August 2014, Judge Lynn dismissed the Cowboys as a defendant because the game ticket “is a contract only between the NFL and a ticket purchaser.”

From Courthouse News.

NFL Accused of Witness Tampering in Super Bowl XLV Seating Trial

March 12, 2015
By David Lee
DALLAS (CN) – The National Football League was accused of tampering with a seating contractor witness as a federal jury began deliberations Wednesday in a lawsuit over botched seating at Super Bowl XLV at Cowboys Stadium.
U.S. District Judge Barbara M.G. Lynn told the eight-person jury it must reach a unanimous verdict.
Seven ticketholders to the 2011 game between the Pittsburgh Steelers and Green Bay Packers sued the league for breach of contract, claiming many temporary seats were not installed by kickoff.
Some fans were taken to areas outside the stadium, while others were given seats with obstructed views.
The plaintiffs claim the league’s offers of compensation do not reimburse them for all of their expenses, nor for their disappointment and frustration.
Soon after the jury left the courtroom to deliberate, plaintiffs’ attorney Michael Avenatti, with Eagan Avenatti in Newport Beach, Calif., asked the judge to stop deliberations and filed a motion to subpoena Scott Suprina, president of seating contractor Seating Solutions, to testify.
Avenatti filed the motion hours after ESPN.com reported that Suprina had stated his company was not to blame for the seating issues and that he was “encouraged to not tell the whole story” by the league.
The NFL “reinforced what my position should be before the deposition,” Suprina said, according to ESPN.
A video recording of Suprina’s deposition was played for jurors during trial, in which he “deflected blame” from the NFL and blamed icy weather during Super Bowl week. Suprina said he was told it would be in his best interests to “stay in their favor.”
Suprina said he was “led to believe” that if he did not “throw the NFL under the bus,” a sister company of Seating Solutions would get its multimillion-dollar license reinstated to put NFL logos on furniture. His application to the league was denied last year when the company reapplied, ESPN.com reported.
“Suprina alleges that the NFL successfully influenced his testimony through the promise of financial gain (aka witness tampering),” the 4-page motion states. “As the court is well aware, Mr. Suprina was the very first witness called by the NFL in its case in chief and is one of two primary witnesses the NFL relies on to prove that the NFL did not engage in fraud as it relates” to two of the plaintiffs.
Avenatti asked the judge to reopen the case or declare a mistrial.
Lynn declined to halt deliberations but did not deny the motion. She said she could withhold a final judgment, giving the plaintiffs more time to investigate the new claims.
During closing arguments, Avenatti said the NFL told the displaced fans “nothing,” despite knowing the temporary seats would be an issue. He told jurors the NFL tried to blame the Dallas Cowboys for the debacle.
Representing the NFL, attorney Thad Behrens, with Haynes Boone in Dallas, told jurors the league has accepted responsibility for the problems from the start. He said the only issue at hand is how much of the displaced fans’ expenses the NFL should pay.

From Courthouse News.

Dallas Cowboys Owner Gets Testy at Super Bowl Ticket Trial

March 10, 2015
By David Lee
DALLAS (CN) – Dallas Cowboys owner Jerry Jones faced harsh questioning Tuesday about his determination to set the all-time attendance record at Super Bowl XLV, where scores of fans were booted from the stadium or given seats with obstructed views.
Lead plaintiff Bruce Ibe and six other ticketholders to the game between the Pittsburgh Steelers and the Green Bay Packers at Cowboys Stadium sued the National Football League in 2011.
They claim temporary seats at the stadium were not installed and cleared by the Arlington fire marshal by game time, resulting in fans being reassigned to areas outside of the stadium or to seats with obstructed views of the field.
They claim the NFL’s offers for compensation are not enough, as they do not reimburse them for travel costs, disappointment and frustration.
Their attorney Michael Avenatti, with Eagan Avenatti of Newport Beach, Calif., called Jones to testify on the seventh day of trial.
Jones appeared relaxed when answering questions about his role with the team and the league, smiling broadly and looking at jurors as he spoke. But he quickly became tense and combative, focusing on Avenatti as the attorney began interrupting Jones’ answers.
U.S. District Judge Barbara M.G. Lynn interjected repeatedly during the testy exchange, warning both men to be quiet when she was speaking, and saying, “This is not hand-to-hand combat.”
Jones told jurors he did not know of the problem with the temporary seats until just before kickoff.
He said he was aware that the first deadline for installation had passed, but was used to being “put on short notice.” Jones said it was the NFL’s responsibility to make sure the seats were installed properly, but acknowledged that public perception would hold him responsible.
“No matter what happens at the stadium or with the Cowboys, I will be accountable,” he said.
Jones’ testimony echoed that of NFL Commissioner Roger Goodell, who told jurors last week the league “accepts responsibility” for the seating failures.
The Cowboys and Jones are no longer parties to the lawsuit.
In a separate lawsuit in August 2014, Judge Lynn dismissed the Cowboys as a defendant because the game ticket “is a contract only between the NFL and a ticket purchaser.”
Jones said that his desire for the Super Bowl attendance record did not matter, because the stadium was designed to hold up to 111,000 people.
“You won’t accept my answer,” Jones said. “The record was automatically broken when we built the stadium.”
A record 103,985 attended Super Bowl XIV at the Rose Bowl in Pasadena in 1980 – a number the 2011 game failed to beat by approximately 700 people.
Jones agreed that he had told league officials he wanted to break the attendance record, but said the NFL refused his requests to sell more standing-room tickets, as the team does during Dallas Cowboys games.
He did not deny sending an email message that compared ticket-buyers to “a shark hitting red meat” and that “however many tickets we print, people will buy.”
“I do not recall saying that,” Jones said. “But it is a true statement.”
Jones said he did not recall being involved in selecting the game’s temporary seating contractor. He told jurors his son, Cowboys executive vice president Stephen Jones, stayed at the stadium the night before the game to observe the seat installations.
Jones said he is one of the more “hands-on” owners in the league, but that “at the end of the day, all the owners vote” on selecting Super Bowl hosts.
The tense exchange was punctuated by periods of laughter from the gallery. When first asked about the stadium, Jones deadpanned that it has a football field.
Judge Lynn teased Jones that he would not be in danger of perjury for calling Avenatti a “sweetheart” for helping him find a passage in an exhibit.
NFL officials testified last week that they thought all the temporary seats would be installed by kickoff.
Frank Supovitz, the league’s former senior vice president of events, said the NFL was forced to redirect workers installing 800 seats on game day to work on 2,400 other seats that the fire marshal rejected as unsafe. About 2,000 of those seats were installed and approved, leaving 1,200 incomplete seats.

From Courthouse News.

Atheists Lack Standing In Ten Commandments Case

March 10, 2015
By David Lee
OKLAHOMA CITY (CN) – An atheist group lacks standing to sue Oklahoma officials to force them to remove a Ten Commandment monument at the state Capitol, a federal judge ruled Tuesday.
American Atheists et al. sued 15 state officials, including members of the State Capitol Preservation Commission, in January 2014.
The plaintiffs claimed the 5-foot-tall stone monument violates their civil rights and “indirectly compels participation” by non-Christians.
U.S. District Judge Robin J. Cauthron dismissed the lawsuit without prejudice Tuesday, granting the defendants’ motion for summary judgment.
Cauthron noted that plaintiff Aimee Breeze saw the monument just once before filing the lawsuit and that the sole purpose of that contact was to seek out the monument.
“Indeed, the location of the monument in relation to the Capitol building and plaintiff Breeze’s use of that building would require her to walk around the Capitol to find the monument,” the 6-page opinion states.
“For this reason, assuming that she did see the monument in January of 2014, that act would not, in and of itself, establish standing, as plaintiff does not have a ‘special license to roam the country in search of governmental wrongdoing.'”
Breeze failed to establish the type of personal contact with the monument sufficient to show the “direct injury required for standing,” Cauthron wrote.
The ruling is the second defeat for the monument’s opponents in the past six months. In September 2014, an Oklahoma County district judge tossed a separate lawsuit backed by the American Civil Liberties Union of Oklahoma.
That lawsuit, now on appeal to the Oklahoma Supreme Court, argues that the monument “marginalizes” Oklahomans of other faiths and of no faith “by sending a distinct message that they are less welcome” at the Capitol.
The Plano, Texas-based Liberty Institute and Oklahoma Attorney General Scott Pruitt defended government officials in the new case.
Liberty Institute general counsel Jeff Mateer said the group is “pleased that the court has rejected this constitutional challenge.”
“Today’s ruling reaffirms the constitutional principle that a person who goes out of his way to take offense does not have a constitutional claim under the Establishment Clause,” Maheer said in a statement.
Pruitt said the ruling is “another victory” and “one more affirmation” that the monument will stand.
“The historical relevance of the Ten Commandments and the role it played in the founding of our nation cannot be disputed,” Pruitt said in a statement.
American Atheists spokeswoman Danielle Muscato told Courthouse News the group is “surprised and disappointed” by the dismissal.
“Oklahoma is breaking the law and cannot hide behind standing,” she said. “This monument remains unconstitutional and we will return.”
Installed in 2009 through private donations, the monument was destroyed in October 2014 when a motorist drove his car onto the Capitol grounds and smashed into it.
Michael Tate Reed, of Roland, Okla., said Satan told him to urinate on and destroy the monument. A replacement monument was erected in January.
Several other religious groups have asked to install their own statutes on capitol grounds, including the New York City-based Satanic Temple. The group wants to erect a 7-foot-tall goat-headed Satan sitting on a pentagram throne with two smiling children standing nearby.

From Courthouse News.