• CIVIL RIGHTS
Paper currency design violates disability law
The government’s failure to create paper currency distinguishable to visually impaired people violates their rights under 504 of the Rehabilitation Act, a split U.S. Circuit Court of Appeals for the District of Columbia ruled on May 20. American Council of the Blind v. Paulson, No. 07-5063.
The American Council of the Blind and two visually impaired people sued the U.S. Treasury Department under the Rehabilitation Act, which was designed to help disabled people live independently. They alleged that the design of U.S. paper currency makes it impossible for millions of Americans to recognize the denomination of bank notes absent help from others or expensive electronic devices. A federal district judge ruled that it was feasible to design around the problem and ordered hearings into how best to do so, but allowed the government an interlocutory appeal to the D.C. Circuit.
The D.C. Circuit affirmed. Even the government acknowledged the burden on sightless people, it said, but could not show that remediating the problem would unduly burden taxpayers. The government has already put considerable resources into design changes mandated by Congress to combat counterfeiting and has no less duty to do so here. The dissent argued that there wasn’t enough evidence on record to warrant an interlocutory appeal.
Full text of the decision
Arrest of nearly nude protesters defensible
Police officers who arrested thong-clad protesters who attempted to recreate the Abu Ghraib prisoner-abuse photos during a visit by President Bush were protected by qualified immunity, the 3d U.S. Circuit Court of Appeals ruled on May 22. Egolf v. Witmer, No. 06-2193.
Iraq War protesters gathered along the route that the president would travel during a 2004 appearance in East Lampeter, Pa. When they thought the presidential motorcade was near, seven men stripped down to thong underwear and attempted to recreate the photos of the naked prisoners at Abu Ghraib. The crowd broke into cheers and protests, but officers did not intervene until ordered to by a state trooper new to the scene. The officers arrested all but one of the men for disorderly conduct. The protesters later sued in federal district court, alleging civil rights violations. The district court ruled that the officers were entitled to qualified immunity from suit.
The 3d Circuit affirmed. The incident developed quickly, amid loud cheers and objections from the crowd, and at a time when officers were most keenly aware of their immediate responsibility to keep the crowd safe as the motorcade passed. “The officers did not have the luxury of ignoring the brewing anger,” the court said. Although sudden crowd disruption does not itself justify an unreasonable arrest, it does factor into the assessment of the officers’ behavior. The court noted that the protesters acknowledged that their near-nudity would be “brushing closely to the boundaries of a [publicly] indecent act.”
• COMMUNICATIONS
Network access doesn’t extend to fiber-optics
Local telephone companies must let competitors connect to their local copper-wire networks to serve customers, but may restrict access to their optical fiber systems and may limit the uses to which competitors put their hybrid copper-optical networks, the 7th U.S. Circuit Court of Appeals ruled on May 23. Illinois Bell Telephone Co. v. Box, No. 07-3557.
The Telecommunications Act of 1996 directs established local phone companies to lease parts of their networks to rivals on an à la carte basis. Particular circuits or services, called unbundled network elements, must be furnished pursuant to Federal Communications Commission (FCC) rules. State public utility commissions are allowed to decide conflicts over access and pricing. The Illinois Commerce Commission ruled that Illinois Bell Telephone Co. must allow rivals to use its network “entrance facilities” to transmit voice and data traffic at a price tied to the cost of that service. The commission also held that the local provider must lease its fiber-optic circuits to deliver voice and data services to rivals’ business customers, but not to “mass-market customers” with fewer than four lines. An Illinois federal district judge affirmed regarding the entrance facilities but reversed on the fiber-optic loops. The company and the commission appealed.
The 7th Circuit affirmed. The FCC has been clear regarding local providers’ duty to grant competitors entry to their “local loop” copper-wire networks in order to connect to all customers. It also has been clear that it expects the competitors to invest in their own optical-fiber networks, so as to encourage competition in providing that service, and has restricted their access to hybrid loops. “The regulations mean what they say,” the court noted.
• CONTACTS
If contract is invalid, so is its arbitration clause
A contract’s arbitration clause isn’t enforceable unless the contract itself is valid — and that’s for a court to decide, the Montana Supreme Court ruled on May 20. Thompson v. Lithia Chrysler Jeep Dodge of Great Falls, No. DA 07-0066.
Corey and Kimber Thompson signed a contract to buy a truck and a financing agreement that was contingent on the dealer arranging a 3.9% interest rate. Both agreements contained arbitration clauses. A week later, the dealer notified the Thompsons that they’d have to pay 4.9%. They returned the new truck and demanded their old one back, but the dealer had already sold it, and refused to return their down payment. They sued, and the dealer moved to enforce arbitration. The trial court granted the motion and the Thompsons appealed.
The Montana Supreme Court reversed. The question is whether the parties ever reached a binding contract, and a court is the appropriate venue for that. “If the formation of a contract never occurred, then the parties never agreed to arbitrate and it would be inappropriate to submit the matter to arbitration,” the court said.
• CRIMINAL PROCEDURE
Judge lacked power to enforce registration law
A trial court overstepped its authority by applying a federal sex offender registration law retroactively, because Congress left that decision to the U.S. attorney general, the 11th U.S. Circuit Court of Appeals ruled on May 23, in a case of first impression. U.S. v. Madera, No. 07-12176.
Wilfredo G. Madera was convicted in New York in 2005 of misdemeanor sexual abuse. He was released on probation on condition that he notify authorities within 10 days of any interstate move. He moved to Florida, obtaining a driver’s license there in June 2006. In July 2006, Congress passed the Sex Offender Registration and Notification Act, which left it up to the U.S. attorney general whether offenders convicted before July 2006 must register. The attorney general concluded in February 2007 that they should. Meanwhile, in October 2006, Madera had been arrested for failure to register. The trial court ruled that notwithstanding the statute’s language, it had the authority to apply the law retroactively. Madera entered a conditional guilty plea and appealed. Madera registered as a sex offender on March 8, 2007.
The 11th Circuit reversed, saying that under the law’s clear language the lower court “clearly erred by usurping” the attorney general’s role. Since the law was unsettled when Madera failed to register, his conviction cannot stand. For that reason, the appellate court did not address Madera’s broader constitutional challenge to the law. The ruling, the first by a federal circuit on the point, applies only to offenses committed during the narrow window at issue.
Despite home detention, prisoner was a prisoner
An electronically monitored prisoner granted home detention has little, if any, reasonable expectation of privacy against a suspicionless search of his residence, the 6th U.S. Circuit Court of Appeals ruled on May 22. U.S. v. Smith, No. 07-1375.
Rickey Smith was released from prison on his fourth offense to live with his sister for the remaining few years of his sentence, but only if he stayed in the house and wore a transmitter on his ankle. Five months later, acting on a tip, police forcibly entered the house, searched the basement where Smith stayed and found two loaded guns under a mattress. Smith pleaded guilty in federal district court to being a felon in possession of a firearm, but reserved the right to appeal the denial of his motion to suppress the guns.
On appeal, Smith argued that the police violated his Fourth Amendment right to be free of an unreasonable search of his residence.
The 6th Circuit affirmed. Even though he lived with his sister, Smith was still being treated as a prisoner. He was being electronically monitored, he needed official permission to leave the home and prison officials had made it clear to him that even though he wasn’t inside an actual prison, they retained as much authority to enter his home as they did to enter his prison cell.
• EVIDENCE
Court takes lenient view of evidence’s relevance
Even slight evidence that an intersection was inherently dangerous was relevant to charges that a driver’s criminal recklessness caused an accident, the Georgia Supreme Court ruled on May 19. Dunagan v. Georgia, No. S07G1798.
Aaron Dunagan was driving his truck when he ran a red light and struck another vehicle, leaving one of its passengers severely brain damaged and quadriplegic. Dunagan told police that he had tried to “beat the light.” He tested positive on two alcohol breath tests. At trial, the court refused to consider evidence that the intersection was dangerous. He was convicted of reckless driving, running a red light and reckless driving causing severe injury. An intermediate state appellate court affirmed, ruling that any history of collisions at the intersection had nothing to do with whether Dunagan acted with reckless disregard. Dunagan appealed.
The Georgia Supreme Court reversed. “The admission of any relevant evidence is favored, even if its probative value is slight; evidence of questionable or doubtful relevancy or competency should be admitted and its weight left for the jury to determine,” the court said.
• IMMIGRATION
Removal not mandatory for identity theft
A state identity-theft statute encompassed several possible activities not contemplated in a generic theft offense, and therefore was not an aggravated felony theft offense for purposes of removal of an alien under the federal Immigration and Nationality Act, the 9th U.S. Circuit Court of Appeals ruled on May 22. Mandujano-Real v. Mukasey, No. 06-74186.
Miguel Mandujano-Real, a Mexican national and lawful permanent resident of the United States, was convicted of identity theft under Oregon Revised Statute 165.800. The U.S. government moved to deport Mandujano-Real, arguing that his conviction rendered him removable under federal law, and that because it was an aggravated felony he was ineligible for cancellation of his removal. Appearing pro se, Mandujano-Real conceded he was removable for the conviction, and an immigration judge ordered him deported. The Board of Immigration Appeals affirmed, and Mandujano-Real, now represented by counsel, filed a petition for review with the 9th Circuit.
Granting the petition for review, the 9th Circuit held that, because the Oregon identity theft statute broadly included offenses not contemplated in theft statutes, such as possession of a fictitious Social Security card, a conviction did not qualify as a aggravated felony offense under the Immigration and Nationality Act. Noting the varying crimes that could be included under the identity theft statute, including using a false address for school registration purposes, the court said, “An intent to deceive a third party by using another’s address is not akin to an intent to deprive the owner of the property of the rights and benefits to which his ownership entitles him.”
• INSURANCE
Survivors’ suffering wasn’t a physical injury
Damages in a wrongful death action are subject to an insurance policy’s limit for “each person” and not “each accident,” because the emotional injury didn’t meet the policy definition of the kind of “physical injury” covered, the Louisiana Supreme Court ruled on May 21. Hebert v. Webre, No. 2008-CC-0060.
Christopher Hebert was killed in a car accident involving a vehicle driven by Scotty Webre. Hebert was survived by his wife, Tara, and three minor children. Webre was insured by Progressive Security Insurance Co. with policy limits of $25,000 for each person and $50,000 for each accident. Hebert was insured by State Farm Mutual Automobile Insurance Co. with uninsured/underinsured motorist benefits of $100,000 per person and $300,000 per accident. State Farm offered $100,000 to Tara. At trial, the court granted summary judgment, finding Hebert’s survivors were entitled to coverage of $300,000 under the “each accident” provision. An intermediate state court of appeal denied State Farm’s writ application on two occasions. The insurer appealed.
The Louisiana Supreme Court reversed. The insurance policy at issue defines “bodily injury” as “physical bodily injury to a person and sickness, disease or death which results from it.” Coverage for “each accident” is for all damages due to bodily injury to two or more persons in the same accident. Here, “the injuries suffered by a wrongful death claimant, i.e., loss of love, affection, and companionship, mental pain, suffering, and distress, do not constitute ‘physical’ bodily injury as required by the policy,” the court said. Furthermore, “these claims could not be subject to the ‘Each Accident’ limit in any event because they were not suffered in the ‘same accident’ as the decedent.”
• JUDGES
Neglect of docket is ground for discipline
A judge violated the judicial canons by allowing cases to languish unjustifiably on his docket for up to two years, the Ohio Supreme Court ruled on May 20, in a case of first impression. Disciplinary Counsel v. Sargeant, No. 2008-2330.
Judge Harry A. Sargeant Jr. of the Sandusky County, Ohio, Court of Common Pleas allowed a large number of cases to sit on his docket without action. Litigants complained to the state judicial oversight panel. Following negotiations, the panel and Sargeant agreed that the judge would accept a public reprimand in six of the cases at issue.
The Ohio Supreme Court approved the agreement, but declined to restrict its review to the six cases. It noted that between 2001 and 2007, Sargeant left as many at 21% of contested divorces involving children and 43% of divorces not involving children on his docket beyond the established guidelines, to the severe detriment of litigants. Notwithstanding his otherwise clean record, and the fact that his term ends in December, he deserves a public reprimand, the court said. Previously, neglect had been a consideration but never the sole reason for disciplining a judge in Ohio.
• NATURAL RESOURCES
Sand, gravel are still off-limits ‘minerals’
Sand, gravel and rock on a parcel of land in Utah are considered minerals under a federal law intended to benefit homesteaders. They therefore belong to the U.S. government and cannot be removed by mining companies, the 10th U.S. Circuit Court of Appeals ruled on May 20. Sunrise Valley LLC v. Kempthorne, No. 06-4188.
In 1925, Zera P.T. Hunt homesteaded property in southern Utah under the Stock-Raising Homestead Act (SRHA) of 1916. His patent reserved to the United States all “minerals” in the lands and the right to prospect them. Western Rock Product and Sunrise Valley now own hundreds of acres of the Hunt homestead. Western Rock operated open pit sand and gravel mining there from 1974 until 1999, when the U.S. government claimed ownership of the sand, gravel and rock. Sunrise Valley’s plans to mine those material also have been blocked. The companies brought suit under the Quiet Title Act to claim the sand, gravel and rock. A Utah federal district court granted the government’s motion to dismiss for failure to state a claim.
The 10th Circuit affirmed. The SRHA was intended to allow graziers and farmers to use the surface land to support their families, but the government reserved all rights to underlying minerals. The U.S. Supreme Court ruled in Watt v. Western Nuclear, 462 U.S. 36 (1983), that sand, rock and gravel are minerals. Although the Supreme Court in BedRoc Ltd. v. U.S., 541 U.S. 176 (2004), allowed such mining, that was under a 1919 law, the Pittman Underground Water Act, that pertained only to Nevada, and all nine justices expressly declined to overrule Western Nuclear.
• TORTS
Negligence wasn’t cause of young man’s suicide
Medical providers aren’t liable for failing to assess the suicide risk for a patient with self-destructive tendencies who hanged himself 33 hours following his discharge, because there was no evidence that he would have consented to hospitalization, a divided Texas Supreme Court ruled on May 23. Providence Health Center v. Dowell, No. 05-0386.
Lance Dowell put a gun to his head in 1997, was taken to Providence Health Center and consented to spending five days in a psychiatric center. Two years later, at age 21, he cut his wrist and was returned to the hospital for treatment. A doctor talked briefly with Dowell, but did not conduct a comprehensive suicide-risk assessment. Instead, Dowell signed a no-suicide contract and promised to talk with family members if he had suicidal feelings. Later, friends found Dowell’s body hanging from a tree. His parents sued for wrongful death, alleging failure to conduct an adequate risk assessment. A jury awarded Dowell’s family $800,000 in damages. An intermediate appeals court affirmed.
The Texas Supreme Court reversed. The defendants, even if negligent, were not a proximate cause of death. There was evidence that Dowell would not have consented to hospitalization, and there was no evidence that hospitalization would have prevented his eventual suicide. Dowell’s discharge was too remote in time from his death. A dissent said the majority was constructing an insurmountable legal hurdle by requiring evidence that Dowell would have consented to hospitalization.
