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ADR Arbitration legal despite illegal damages exclusion An arbitration provision in an employment contract is enforceable despite the severance of its illegal restriction on certain damages, the 5th U.S. Circuit Court of Appeals held on Sept. 11. Hadnot v. Bay Ltd., No. 03-40325. Shortly after Edmond Hadnot accepted Bay’s offer of employment, he signed an agreement that contained an arbitration clause, but which excluded punitive and exemplary damages from the kinds of damages that the arbitrator can award. Subsequently, Hadnot filed suit in a Texas federal court alleging that Bay violated Title VII of the Civil Rights Act of 1964. When Bay moved to compel arbitration, the court found the arbitration provision enforceable, but severed it from the punitive and exemplary damage exclusion, which the court found illegal under Texas law. On appeal, the 5th Circuit affirmed, disagreeing with Hadnot’s contention that the agreement was not supported by valid consideration on the part of Bay. The agreement specified that Bay’s acceptance of Hadnot’s job application was “in exchange for” Hadnot’s willingness to arbitrate all employment disputes. The 5th Circuit found that the arbitration provision without the severed restriction was capable of achieving its goal. Full text of the decision ATTORNEY FEES Special counsel’s target gets half of her fees back The subject of a Clinton-era independent counsel investigation is entitled to reimbursement of a portion of the attorney fees she incurred during the probe, the U.S. Circuit Court for the District of Columbia held on Sept 9. In re Espy, No. 94-2. As part of a broader probe into the activities of former agriculture secretary Mike Espy, Ellen W. Haas, his undersecretary for food, nutrition and consumer services, was investigated over allegations that she received improper gratuities from persons subject to regulation by the U.S. Department of Agriculture. Those gratuities included dinners with a principal target of the investigation. Never indicted, she filed a petition under the Ethics in Government Act of 1978 for reimbursement of the $31,099.66 in fees she incurred during the investigation. The D.C. Circuit granted 50% of the fees she requested. The court agreed with Haas that it was unlikely that a regular prosecutor, faced with the constraints of a finite budget, would have spent a significant amount of time and money investigating relatively small gratuities. On the other hand, the court observed, Haas would probably have been called as a witness and her questionable grand jury testimony may well have caught a regular prosecutor’s attention. Full text of the decision CIVIL PRACTICE Trial court right to allow foreigners to sue Ford The trial court in a massive defective-tire-design lawsuit did not abuse its authority to justify a writ of mandamus on the forum non conveniens issue with respect to certain South American plaintiffs, the 7th U.S. Circuit Court of Appeals wrote in a Sept. 12 opinion. In re Ford Motor Co. and Bridgestone/Firestone NA Tire LLC, No. 02-3111. The suits were filed against Ford and Bridgestone/Firestone alleging defective designs of certain tires used on the Ford Explorer sport untility vehicle. The matters were consolidated before an Indiana federal court. One hundred and twenty-one of these cases were originally filed by Venezuelan or Colombian nationals. Ford and Firestone moved to dismiss, claiming forum non conveniens. After the district court denied the motions, The defendants petitioned the 7th Circuit under 28 U.S.C. 1651(a) for a writ directing the district judge either to grant their motions or to certify the order denying them, for interlocutory appeal. The 7th Circuit denied the application, finding that the petitioners had failed to demonstrate an error so serious that it was “an abuse of the trial court’s authority.” In deciding a forum non conveniens motion, according to the opinion, a court must consider whether an adequate alternative forum is available and whether private and public interest indicate that the alternative forum is superior. The trial court had used its discretion to credit an expert opinion that the Venezuelan courts would lack subject-matter jurisdiction, and to conclude that neither private nor public interest indicated superiority of alternative forums. Full text of the decision Bankruptcy filing doesn’t stay alimony proceeding A bankruptcy filing does not automatically stay proceedings relating to marriage dissolution, custody and support, but does stay discovery requests and trial subpoenas in a divorce case, the Maryland Court of Appeals held on Sept. 8, 2003. Klass v. Klass, No. 125. Kathy Klass filed for “limited divorce” from her husband, Lawrence, in a Maryland trial court. A consent order included the granting of custody of the three children to Kathy and the establishment of dollar amounts for child support and alimony. Lawrence failed to comply with the consent order and filed for absolute divorce. A week before trial, he filed for Chapter 7 bankruptcy. The divorce trial was postponed. Although 11 U.S.C. 362 automatically stays certain proceedings during bankruptcy, Kathy mailed Lawrence discovery requests and notice of the divorce trial date. Lawrence declined to attend the trial and appealed portions of the judgment. Maryland’s Court of Special Appeals affirmed. Maryland’s high court noted that, although no stay was in effect at the time of the actual trial, the stay precludes the “continuation of a judicial proceeding” against a debtor that was commenced before a bankruptcy filing. Nevertheless, because � 362(b) holds that proceedings relating to alimony, maintenance or support are excepted from the stay, the court affirmed the judgment concerning dissolution of the marriage, child custody award and limits on Lawrence’s access to the children. However, Kathy’s monetary award was void, because action concerning that matter would violate the stay. The same applied to discovery requests and subpoenas for trial attendance, which were issued during the stay. Full text of the decision CONSTITUTIONAL LAW Ballot filing fee statute violates equal protection Concluding that the lack of a reasonable alternative means of ballot access burdens indigent candidates’ rights, the 3d U.S. Circuit Court of Appeals on Sept. 12 ruled that the mandatory ballot access law violates the equal protection clause. Belitskus v. Pizzingrilli, nos. 01-3747, 01-3824. In a � 1983 claim, candidates for various public offices alleged that the Pennsylvania ballot access law violates the equal protection clause. The ballot access law requires candidates to pay a filing fee to have their names placed on the general election ballot. A Pennsylvania federal court enjoined the commonwealth from applying the fee to candidates who could not afford it. The lower court granted summary judgment in favor of the commonwealth against candidates who could not demonstrate entitlement to relief. The 3d Circuit held that the commonwealth’s failure to provide a reasonable alternative means of ballot access makes economic status a decisive factor in determining ballot access. Neither of the commonwealth’s stated justifications for the fee, which were to regulate the number of candidates and to defray election costs, were narrowly enough drawn to achieve a compelling interest. Full text of the decision Recovery of gay officer’s tuition may violate rights A district court erred in granting summary judgment to the U.S. Air Force in a case in which it ordered recoupment of a gay former officer’s medical tuition because factual issues remained as to whether the policy was applied only against gay violators of the military’s prohibition of homosexual conduct, the 9th U.S. Circuit Court of Appeals held on Sept. 12. Hensala v. Department of the Air Force, No. 01-16791. The Air Force funded John Hensala’s education at Northwestern University in exchange for his promise to serve on active duty after graduating. Shortly before he was to begin service, Hensala informed the Air Force that he was gay, but that he still wished to serve. The Air Force discharged Hensala and ordered him to repay his educational expenses. Air Force policy is that a “coming out” statement is ground for recoupment of tuition if it was made with a view to seeking separation. Hensala sued, arguing that his stated intent to serve negated any obligation to repay the tuition. A district court granted summary judgment to the Air Force, and Hensala appealed. The 9th Circuit affirmed in part, holding that, based on the timing of Hensala’s statement, the Air Force could have determined that Hensala made the coming-out statement so as to seek separation. However, the court reversed the summary judgment on Hensala’s equal protection and First Amendment claims, holding that factual issues remained as to whether Hensala’s recoupment was ordered because of his gay status or because of actual misconduct. Full text of the decision ENVIRONMENTAL LAW Clean Water Act holds wetlands are U.S. waters In a case involving developers ditching and draining a Virginia wetlands area, the 4th U.S. Circuit Court of Appeals on Sept. 10 ruled that the U.S. Army Corps of Engineers had jurisdiction over a civil enforcement action because the wetlands-which were adjacent to tributaries of navigable waters-were “waters of the United States” for purposes of the Clean Water Act, Treacy v. Newdunn Assocs. LLP, nos. 02-1480; 02-1594. Newdunn Associates LLP and other developers began ditching and draining a wetlands area that Newdunn owned near Newport News, Va., without obtaining a permit from the corps of engineers or the Virginia State Water Control Board. The corps brought a civil enforcement action in federal court and the board sued in state court. Newdunn removed the state action to federal court where it was consolidated with the corps’ suit. The district court ruled for the developers, holding that the corps lacked jurisdiction over the wetlands and that the state’s jurisdiction coincided with that of the corps under the Clean Water Act. Reversing, the 4th Circuit held the district court erred on both the state and the federal questions. First, the court held that there was no federal jurisdiction because Virginia’s law went beyond the federal law. Second, the court held that the corps had jurisdiction over the Newdunn wetlands. The court said, “In sum, the Corps’ unremarkable interpretation of the term ‘waters of the United States’ as including wetlands adjacent to tributaries of navigable waters is permissible under the CWA because pollutants added to any of these tributaries will inevitably find their way to the very waters that Congress has sought to protect.” Full text of the decision EVIDENCE Asking sex abuse victim leading questions is OK The use of leading questions during direct examination of a rape victim did not violate the defendant’s Sixth Amendment right to confrontation, the 8th U.S. Circuit Court of Appeals held on Sept. 12. U.S. v. Grassrope, No. 02-2820. During a trial for aggravated sexual abuse, the victim, a 17-year-old babysitter who cared for the defendant’s children, was asked leading questions by the prosecutor regarding the exact details of her alleged rape. The defendant admitted that he had both vaginal and anal intercourse with the victim, but claimed that the sex was consensual. The defendant was convicted on two counts of sexual abuse by force. He appealed, claiming violation of his Sixth Amendment right to confront his accuser. He contended that the victim’s testimony that sexual contact included penetration came in response to improper leading questions, and that he would not have testified to the penetration had the victim not already done so. The 8th Circuit found that the trial court had not abused its discretion in allowing the leading questions. The court explained that leading questions may be used to elicit the testimony of sexual assault victims in order to determine precise physiological details. In addition, the defendant had never disputed that there had been sexual penetration. The only issue in question had been whether the sexual act was consensual or not. Full text of the decision GOVERNMENT City workers’ right to veto privatization limited In a case of first impression, the Louisiana Supreme Court held on Sept. 9 that, while the city of New Orleans’ civil service commission had the power to review city contracts that privatized city services and displaced city employees, that power was limited to ensuring that such contracts were not politically motivated. Civil Serv. Comm’n of New Orleans v. City of New Orleans, nos. 02-C-1812; 02-C-1815. After the city-owned New Orleans Cultural Center ran budget deficits, the city decided to privatize its operation. The city’s civil service commission sued, arguing that since privatization would result in the displacement of city workers, the city could not enter into a contract without the approval of the commission, as required by the Louisiana Constitution. A trial court enjoined the city from terminating employees without commission approval. An intermediate state appellate court affirmed, and the Louisiana Supreme Court granted review to determine whether the commission’s rules exceeded its authority under the state constitution. Recognizing what it called “the tumultuous history of civil service in Louisiana,” the court held that the state’s constitutional provisions for the civil service system are there to protect against political influence. However, citing an Alaska opinion that held that the primary goal of state government was “to govern, not to employ, and to govern effectively, the state must govern efficiently,” the court argued that the commission’s veto power was limited to determining if workers were displaced for political reasons or not. Full text of the decision MEDIA LAW Malice alleged, reporter must disclose his source The Minnesota press shield law does not protect a reporter from disclosing the identity of a confidential source, even when all other elements of the statute have been met, when revelation of the identity will lead to relevant evidence of actual malice, an en banc Minnesota Supreme Court on Sept. 11 said. Weinberger v. Maplewood Review, No. C7-01-2021. High school football coach Richard Weinberger sued the school district and several individual administrators for defamation over an article that appeared in the Maplewood Review. The story contained several allegedly false and defamatory statements attributed to unnamed sources. Weinberger deposed the individual defendants, but none admitted to making the remarks. Weinberger also attempted to compel the reporter of the article to reveal his confidential sources. The trial court granted the motion to compel, but an appellate court reversed, saying the Minnesota Free Flow of Information Act protected the reporter from disclosing his confidential sources. Reversing, the high court noted that, while the shield law generally protects reporters from having to reveal confidential sources, there is a defamation exception to this rule when disclosure of the source will lead to evidence of actual malice. “The statute requires only that the plaintiff establish that the identity of the source will lead to relevant evidence on the issue of actual malice.” Full text of the decision

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