The following additional published opinions were released by the U.S. Court of Appeals for the Fifth Circuit on April 23, 2008:

• Roark & Hardee LP v. City of Austin (King, DeMoss, Southwick, JJ.; opinion by King, J.) (revision of opinion released March 27, 2008). Pursuant to a successful ballot initiative, in 2005 the City of Austin enacted a ban of smoking in public places; as part of that smoking ban, the ordinance provides that an owner or operator of a public place will be in violation if it “fails to take necessary steps to prevent or stop another person from smoking in an enclosed area in a public space.” Plaintiff bar owners brought suit to enjoin enforcement of the ordinance, claiming in part that the “necessary steps” provision was unconstitutionally vague. The district court upheld the constitutionality of the ordinance, with the exception of the “necessary steps” provision, and enjoined the enforcement of the “necessary steps” provision. The Fifth Circuit reversed the district court, finding the “necessary steps” provision to not be unconstitutionally vague, vacated the injunction of that provision’s enforcement, and otherwise affirmed the district court’s judgment. As a threshold matter, the Fifth Circuit held that the plaintiff bar owners have standing to bring the suit, as they faced a real threat of immediate prosecution under the “necessary steps” provision. The Fifth Circuit then rejected the plaintiffs’ argument that the “necessary steps” provision violated their First Amendment free speech rights by compelling them to verbally confront their patrons, relying on the U.S. Supreme Court’s upholding of the Solomon Amendment in Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 60 (2006). The Fifth Circuit then rejected the argument that the ordinance’s vagueness leads to unreasonable government interference with the conduct of the plaintiffs’ business, holding that the ordinance’s ban of smoking in public places and minimization of the effects of second-hand smoke do not threaten any constitutionally protected interest the bar owners may have in pursuing their chosen profession of providing alcohol and other entertainment. The Fifth Circuit based its reversal of the district court’s vagueness finding on the premise that the district court incorrectly held that the city “must delineate the exact actions a bar owner would have to take to avoid liability[;] this high degree of language precision exceeds the constitutional requirements for upholding a statute.” Slip op. at 26. The Fifth Circuit held that guidelines drafted by the city were sufficient to constitutionally fetter the enforcement discretion of the “necessary steps” provision.
• Cadle Co. v. Pratt (Wiener, Barksdale, Dennis, JJ.; opinion by Wiener, J.) (revision of opinion released April 8, 2008). Affirming denial of sanctions against debtor’s counsel, finding that creditor had failed to comply with service requirement of Rule 9011; declining to rule as to appeal of award of attorneys’ fees to debtor, on basis that district court had remanded that issue to the bankruptcy court, depriving the Court of Appeals of jurisdiction over that issue. Fifth Circuit held that informal notice was insufficient to satisfy the service requirement of FRCP 11, and thus Bankruptcy Rule 9011.
• Louisiana v. AAA Insurance Co., et al. (Higginbotham, Stewart, Elrod, JJ.; opinion by Higginbotham, J.) (revision of opinion released April 11, 2008). Affirming district court’s denial of State’s motion to remand to state court case brought by Louisiana as an assignee to homeowners’ insurance benefits for Hurricane Katrina damages against various insurers, which case had been removed under the Class Action Fairness Act; Louisiana argued that CAFA was inapplicable and that Louisiana enjoyed sovereign immunity from involuntary removal to federal courts. Fifth Circuit held that the state does enjoy “some measure of insulation” from involuntary removal of suits brought by it, but not insofar as some of the named defendants were classes of private citizens of the state, such as were included here.