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BANKRUPTCY Farmer can’t discharge infringement judgment A farmer must pay more than half a million dollars to Monsanto Co. for a patent infringement judgment that is nondischargeable, the 6th U.S. Circuit Court of Appeals Bankruptcy Appellate Panel said on Jan. 30, because his refusal to pay a seed-use license fee was “malicious.” Monsanto Co. v. Trantham, No. 02-27859. Monsanto makes “Roundup” herbicides, which kill weeds but sometimes also kill crops. Monsanto also patented a technology that makes Roundup-resistant cotton and soybean seeds. It sells that technology to seed producers who may only sell them to licensed end-users. Farmer William Trantham admitted using the “Roundup Ready” seeds without a license. A jury found that he willfully infringed on Monsanto’s patents and awarded Monsanto $87,022.50. Granting the company’s motion for trebled damages and attorney fees, the court entered a judgment of $592,677.89. After Trantham filed for Chapter 7 protection, Monsanto moved for a summary judgment, arguing that the debt was not dischargeable because Trantham had committed an intentional tort. A Tennessee bankruptcy judge denied the motion, ruling that because Trantham didn’t intend to harm Monsanto, the company had not met its burden under 11 U.S.C. 523(a)(6), which precludes discharge from any debt for “willful and malicious injury by the debtor.” Reversing, the bankruptcy appellate panel concluded that there was “malicious injury” under � 523(a)(6), because Trantham must have believed that the consequence of his use of the seeds without the license would be financial harm to Monsanto. Full text of the decision BUSINESS LAW Nude-dancing injunction found to be overbroad An adult club owner cannot sidestep city ordinances by semantic compliance, but it need not endure an injunction that is overbroad, the 8th U.S. Circuit Court of Appeals held on Jan. 30. Jakes Ltd. Inc. v. City of Coates, nos. 02-2931; 02-3835. The city of Coates, Minn., enacted an ordinance barring the cabaret Jakes from offering live nude dancing. Jakes sued, alleging First Amendment violations. A Minnesota federal court dismissed the cabaret’s complaint and enjoined it from operating a sexually oriented business. Jakes appealed. The 8th Circuit affirmed. Jakes then sidestepped that part of the ordinance that defines an adult club as a place where “admission is charged for entrance or . . . non-alcoholic beverages are intended for consumption . . . ” by replacing the cover charge with a parking fee and by selling soft drinks outside. The nude dancing continued, prompting the city to move for a finding of contempt. The lower court ordered the cabaret to close. Upon reopening, Jakes offered bikini-clad “ lap” dances but no live nude dancing. The court granted the city’s second contempt motion and Jakes appealed from both orders. Although it again affirmed, the 8th Circuit directed the district court to modify its “overbroad” injunction so that it would only prohibit the sexually oriented business at issue: live nude dancing. Full text of the decision CIVIL PRACTICE Court must state reasons for not reinstating suit A trial court erred in failing to articulate its reasons for denying a motion to reinstate a civil suit, the District of Columbia Court of Appeals held on Jan. 29. Brown v. Kone Inc., No. 03-CV-281. Beverly Brown alleged she was injured in 1999 when an elevator in a Washington building fell four floors. She sued Kone Inc., the building manager. A trial court granted Kone’s motion to dismiss. Brown, pro se at the time, claimed she never got notice of the motion and moved to reinstate the suit. The trial court then issued a single-sentence decision denying her motion. Reversing the lower court’s decision and remanding for further proceedings, the D.C. Court of Appeals held that the trial court erred when it failed to say why it denied Brown’s motion. It said that the trial court was required to consider five factors: Did the moving party receive notice of the proceedings, act in good faith, take prompt action, present an adequate defense and is there prejudice to the nonmoving party. Full text of the decision No diversity jurisdiction to review award of $0.00 a federal district court did not have diversity jurisdiction to review a zero-dollar arbitration award regardless of the amount of damages sought, the 9th U.S. Circuit Court of Appeals held on Jan. 30. Luong v. Circuit City Stores Inc., No. 02-56522. Vernon Vu Luong sued Circuit City Stores Inc. in a California federal court, alleging violations of the Americans With Disabilities Act (ADA), 42 U.S.C. 12101-12213. The court dismissed the suit, granting Circuit City’s motion to compel arbitration pursuant to an arbitration agreement. The arbitrator awarded $0.00, finding that Luong was not disabled and that Circuit City did not violate the ADA. Luong then moved to vacate the award in federal court based on the arbitrator’s alleged violations of the Federal Arbitration Act. But the lower court granted Circuit City’s motion to dismiss for lack of subject-matter jurisdiction. Luong appealed, asserting that the amount in controversy to establish diversity jurisdiction was the amount of his claim, not the award. Rejecting that argument, the 9th Circuit held that, in seeking to vacate an arbitration award, the award amount, not the underlying claim amount, was the sum in controversy. The court said, “Luong’s petition to vacate does not seek to recover damages for disability discrimination; that is what he seeks in the underlying action. His petition seeks to vacate an award with which he is unhappy.” Full text of the decision Privilege doesn’t apply to impeachment deposition Resolving a split between two Florida intermediate appellate courts, the Florida Supreme Court held on Jan. 29 that an expert’s deposition transcripts, which opposing counsel planned to use to impeach the expert at trial, were not covered by attorney work-product privilege. Northup v. Acken, No SC02-2435. Leonard Northup sued his wife’s physician, Howard Acken, for medical malpractice, arguing that his alleged failure to diagnose her cancer caused her death. During discovery, Northup moved to force Acken to produce transcripts of depositions of Northup’s expert from previous litigation. Acken’s counsel refused, arguing that he had collected the transcripts to impeach the expert, making them subject to the attorney work-product privilege. A trial court granted Northup’s motion to compel production. An intermediate appellate court quashed the order, but certified its decision as a conflict with another Florida intermediate appellate court, sending the issue to the state Supreme Court. In reversing the intermediate court and affirming the trial court’s production order, the Florida Supreme Court said, “We conclude and specifically announce today that all materials reasonably expected or intended to be used at trial, including documents intended solely for witness impeachment, are subject to proper discovery requests . . . and are not protected by the work product privilege.” Full text of the decision CONSTITUTIONAL LAW Voters may elect to free DAs from term limits District attorneys are subject to term limitations under a 1994 Colorado state constitutional amendment, but localities with contiguous political and judicial boundaries may vote on whether to eliminate the limit for their district, the Colorado Supreme Court ruled on Jan. 26. Davidson v. Sandstrom, No. 03SC287. The Pueblo County Board of County Commissioners submitted a measure to the voters of the 10th Judicial District of Colorado asking if they would like to exempt the area’s district attorney from the two-term limitation imposed by the amendment, which applies to all nonjudicial elected officials. The voters elected to exempt their district attorney, G.F. Sandstrom, from the term-limits rule, but Colorado’s secretary of state refused to certify the results. In a declaratory judgment action, a trial court ruled that district attorneys are subject to the constitutional measure, but that the board of county commissioners had the authority to refer a measure to exempt Sandstrom to the voters. Affirming, the Colorado Supreme Court held that a district attorney is not a judicial officer, but an elected official, and so fits within the definition of a “nonjudicial elected official” subject to the term-limit measure. The board thus had the authority to refer a term limits measure to the voters. “Because the boundaries of the Tenth Judicial District and Pueblo County are coextensive, with identical electors, we find that the Board validly referred the measure to the voters of the Tenth Judicial District.” Full text of the decision CRIMINAL PRACTICE Jurors allowed to submit questions to witnesses Joining 36 state courts, the District of Columbia and 10 federal circuits, the Vermont Supreme Court ruled on Jan. 30 that the practice of allowing jurors to submit questions, screened by a judge, to witnesses at trial, does not deprive a criminal defendant of a fair and impartial jury. State v. Doleszny, No. 2001-310. A judge in John Doleszny’s bribery trial proposed that jurors be permitted to submit questions to trial witnesses after attorneys for both sides concluded their examinations. Doleszny objected, saying that the practice would compromise the jury’s neutrality and reduce the state’s burden of proof. The trial court denied Doleszny’s objection. The court asked two juror questions of the state’s main witness, and four juror questions of Doleszny. Doleszny was convicted and he appealed. Affirming, the Vermont Supreme Court disagreed with the notion that the practice encourages jurors to form legal judgments prior to the close of evidence. Instead, it said, active jurors are more likely to learn and become more precise and qualified decision-makers. It added that the questions don’t lessen the state’s burden of proof because a judge is still required to review all of the evidence. Full text of the decision Sentence enhancement doesn’t need willful force Because the intentional use of force was not a required element in the prior criminal offense that triggered a 16-level “crime of violence” sentence enhancement under the U.S. Sentencing Guidelines, an en banc 5th U.S. Circuit Court of Appeals on Jan. 16 overruled a Texas federal court and vacated the sentence. United States v. Vargas-Duran, No. 02-20116. Enrique Vargas-Duran, a Mexican national, was arrested for driving while intoxicated and convicted of being in the U.S. unlawfully. At sentencing, a district court gave him a 16-level sentence enhancement due to a prior conviction for the Texas state crime of intoxication assault. The court held that intoxication assault was a “crime of violence” for enhancement purposes under the guide- lines. Vargas-Duran appealed, arguing that intoxication assault did not contain the element of intentional use of force, and was thus not a crime of violence under the guidelines. Remanding for resentencing in accordance with its opinion, the 5th Circuit said that its intent was to clarify the law with respect to enhancements that require, as an element, the use, attempted use or threatened use of physical force against another person. It also held that the “use” of force requires that a defendant intentionally avail himself of that force. It stated that the intentional use of force must be an element of the predicate offense if that offense is to enhance a guidelines sentence. Full text of the decision GOVERNMENT No duty to deliver sewer service to all residents A municipality has no constitutional or statutory duty to provide sewer service to all residents if it has provided service to any one resident, the South Carolina Supreme Court ruled on Jan. 27. Sunset Cay v. City of Folly Beach, No. 25774. Pursuant to a city ordinance, the island city of Folly Beach, S.C., built a sewer system for its commercial district in 1983. A 1984 ordinance placed the cost of operating, maintaining and expanding the system on user charges, and required that plans for extensions be approved by the city. In 2001, a developer planning to build eight residential duplexes outside the commercial district asked for a pipeline extension. The city told the developer that an extension would require an ordinance exception from the city council. The developer sued, seeking a declaration that the ordinance requiring city approval was unconstitutional because the city has to provide sewer service. A trial court dismissed the suit, ruling that the controversy was not justiciable. The state Supreme Court reversed the justiciability finding, but held that there was no constitutional provision that imposes a duty on a city to provide sewer service to all residents. “[T]he decision whether to grant a sewer extension request generally must be left to the sound discretion of municipal leaders, who are charged with considering all the various factors, including financial and economic implications, aesthetic and environmental concerns, feasibility of a particular plan, and the effect of an extension on the municipality’s long-range zoning, planning, or organization,” it said. Full text of the decision SCHOOLS AND EDUCATION Girls with spine defects can’t get special services Two girls who are physically impaired by scoliosis do not need the special services offered to “developmentally disabled” children, because the children are not cognitively impaired, the Washington Supreme Court held on Jan. 29. Campbell and Hurd v. State of Washington, Dep’t of Social and Health Services, nos. 74204-9 and 74206. Washington’s Division of Developmental Disabilities determined that two young children, Carmen Campbell and Savannah Hurd, were eligible for special services because of their risk of developmental disabilities. Both girls have progressive scoliosis that inhibits proper lung formation and has required, and will require, scores of life-saving operations over time. Neither child is cognitively or intellectually impaired. At age 6, the department routinely re-evaluates at-risk children and only continues special services if a child has a “developmental disability.” The state’s statute deems a disability “developmental” if it is “attributable to mental retardation, cerebral palsy, epilepsy [or] autism.” At their 6-year-old evaluations, Campbell and Hurd were found to have no “developmental disabilities,” and so became ineligible for special services. A trial court upheld the Campbell ineligibility ruling, but a different lower court held that Hurd’s equal protection rights were violated because there is no rational basis to treat 5-year-olds differently from 6-year-olds. The state’s intermediate Court of Appeals certified the cases to the Washington Supreme Court. The high court affirmed, holding that the girls aren’t eligible for special services. The court rejected the contention that different federal definitions of developmental disabilities pre-empted the state’s definition. It reversed the Hurd equal protection ruling, stating that the difficulty in evaluating children under 6 was a good reason to apply a different standard to children older than 6. Full text of the decision

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