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ADMINISTRATIVE LAW Highway safety counsel can issue opinion letter A michigan federal court properly granted summary judgment to the government in an action brought by an automotive brake manufacturer seeking to enjoin the chief counsel of the National Highway Traffic Safety Administration (NHTSA) from posting an opinion letter on the agency’s Web site. The chief counsel’s action did not constitute “final agency action” subject to judicial review under the Administrative Procedure Act, the 6th U.S. Circuit Court of Appeals held on Feb 11. Air Brake Sys Inc. v. Mineta, No. 02-1682. Air Brake Systems Inc. manufactured nonelectronic anti-lock braking systems for use on trucks and trailers. In response to a question from an Air Brake customer about whether the brakes complied with an NHTSA standard, the acting general counsel of the NHTSA issued opinion letters stating that the brakes would not meet that standard. The agency posted the letters on its Web site and Air Brake allegedly suffered a loss in business. Air Brake sued, challenging the chief counsel’s conclusions and his authority to issue the letters. The district court granted summary judgment, and Air Brake appealed. Affirming, the 6th Circuit held that the opinion letters didn’t violate the Administrative Procedure Act because they were not final agency actions, and the chief counsel had authority to issue them. The court said, “The ability to receive NHTSA input . . . before investing resources in manufacturing and selling a product surely offers as much benefit to suppliers like Air Brake as it provides to the companies that build the vehicles and the consumers who buy them.” Full text of the decision CONSTITUTIONAL LAW Law on lewd acts is not unconstitutionally vague Holding that a trial court erred in quashing the indictment of a man who admitted he masturbated in the presence of his 10-month-old daughter, the Louisiana Supreme Court held that the state statute used to prosecute the father was not unconstitutionally vague. State v. Interiano, No. 03-KA-1760. After receiving a report from a pediatrician that a 10-month-old patient had tested positive for gonorrhea, police contacted the infant’s father, Cristhian Interiano, who admitted watching adult videos and masturbating while the child played or slept on the floor. Prosecutors charged Interiano with violating Louisiana Revised Statute 14:81(A), which prohibits lewd and lascivious acts in the presence of children. A trial court quashed the indictment, holding that the statute was unconstitutionally vague in failing to define clearly the presence requirement. The trial court asked if parents would be violating the statute by engaging in sexual relations with their child in the next room. The state’s high court granted review. Reversing, the Louisiana Supreme Court held that the statute was constitutional, and that the trial court’s hypotheticals were irrelevant because Interiano had admitted the child was present in the room. The court held that any vagueness in the statute could be cured by a limiting construction, specifically a construction requiring that the child “sees or senses that a sexual act is taking place.” Full text of the decision CRIMINAL PRACTICE Capital defendant must prove he is retarded A colorado statute outlining the procedures to be used when a defendant asserts the defense of mental retardation in a death penalty case is still valid after Atkins v. Virginia, the Colorado Supreme Court ruled on Feb. 9. State v. Vasquez, No. 02SA218. A 2002 U.S. Supreme Court ruling, Atkins declared that the execution of the mentally retarded violates the Eighth Amendment’s prohibition of cruel and inhuman punishment. Colorado brought first-degree murder charges against Jimmy Vasquez, then told him that it was seeking the death penalty. Vasquez filed a “notice of mental retardation,” pursuant to 6 Colo. Rev. Stat. � 18-1.1-1102(1), and a motion to challenge the constitutionality of the law, which requires a defendant to prove his retardation by clear and convincing evidence. The trial court granted the motion, ordering the state to prove that Vasquez was mentally retarded. The case came to the Colorado Supreme Court on a show-cause order. Colorado’s high court upheld the law and remanded the case for further proceedings. Noting that Colorado has barred the execution of the mentally retarded since 1993, it added that Section 18-1.3-1102 provides a procedural mechanism by which the court determines whether a defendant is mentally retarded. Also, while the Atkins court placed a substantive restriction on the state’s power to execute the mentally retarded, it nonetheless left it to the states to implement that restriction. Full text of the decision DAMAGES Wrongful death law does not cover med-mal suits Damages for a wrongful death case brought under the arbitration provisions of the Florida medical malpractice statute prior to 2003 legislative amendments should be calculated solely under the medical malpractice statute and not the state’s Wrongful Death Act, the Florida Supreme Court ruled on Feb. 12. Barlow v. North Okaloosa Med. Ctr., No. SC02-796. Evelyn Barlow sued the North Okaloosa Medical Center for medical malpractice following the death of her husband. The center admitted liability, and the parties agreed to arbitrate damages under the malpractice statute. The arbitration panel awarded Barlow more than $102,000 for economic damages, but refused to award anything for lost earning capacity and Social Security retirement benefits. Looking to the Wrongful Death Act’s provision for loss of prospective “net accumulations,” the arbitrators determined that the decrease in benefits would have been offset by Barlow’s lower expenses without her husband. An intermediate appellate court affirmed the award. Florida’s high court reversed, finding that the appellate court ruling conflicted with the high court’s 2000 decision in St. Mary’s Hosp. Inc. v. Phillipe. In that case, the Florida Supreme Court held that the arbitration provisions of the med-mal statute cover the damages available under the statute, regardless of whether the malpractice involves wrongful death. Full text of the decision ELECTION LAW Slash mark in option box evidence of voter intent A slash mark in the box next to an election option is evidence of voter intent, the Wisconsin Supreme Court ruled on Feb. 4. Roth v. LaFarge School Dist. Bd. of Canvassers, No. 02-0542. Voters in the LaFarge school district were asked to vote in a school improvement referendum. The first vote ended in a tie, which meant that the bill was defeated under Wisconsin election law. A recount yielded another tie, but with three fewer votes on each side. One of the yes votes was disqualified because of a procedural error by the poll workers. One of the no votes was disqualified because there was a slash mark (/) in the no box that had been erased. Patricia Roth, a yes-voter, challenged the results, and a no-voter intervened. The trial court ruled that the “no” vote was properly excluded under Wis. Stat. � 7.50(2)(c), which provides that a vote will be counted if a cross, slash or other mark similar to the eight examples listed in the statute is present in a qualifying place on the ballot. The court of appeals reversed, finding � 7.50(2)(c) to be ambiguous. The Wisconsin Supreme Court affirmed, finding that the no vote should be counted because there was a mark in the box next to the word no, which would be a qualifying place on the ballot, giving effect to the will of the voter. The court rejected Roth’s contention that there must be a mark and an intent to vote by the voter in order to qualify under � 7.50(2)(c). Full text of the decision FAMILY LAW Mom’s affidavit no basis for dad’s contempt order Although it affirmed a trial court’s denial of a father’s request to reduce his child support payments, the Georgia Supreme Court on Feb. 2 reversed the trial court’s contempt order against him, holding that an affidavit from the mother was insufficient to hold the father in contempt. Moccia v. Moccia, No. S04A0095. In 1999 divorce proceedings against his wife, Cristi, Ralph Moccia agreed to child support payments of $1,000 a month. In 2002, Ralph moved to reduce his support payments, alleging a decline in his financial situation. Cristi counterclaimed, and requested that he be held in contempt for failure to make the required payments. The trial court denied his request for modification, and ruled that if Cristi supplied an affidavit that payment had not been made by a specified date, Ralph would be held in contempt and incarcerated. Georgia’s high court affirmed the denial of modification, holding that the trial court correctly determined that Ralph’s financial status rather than his income should determine any modification. But it reversed the contempt order, holding that an affidavit from an ex-wife was insufficient evidence. The court said, “In effect, the order ‘placed the keys to the jail in [the mother's] hand in that there was no mechanism provided whereby an officer of the court would possess objective information as to whether the order at issue had been complied with.’ “ Full text of the decision INSURANCE LAW No liability for worker’s crash in company truck An employee’s out-of-town trip in a company pickup truck-during which a passenger in the vehicle was killed-deviated from the permitted use of the truck, relieving the vehicle’s insurance carrier from liability, the Texas Supreme Court held on Feb. 13. Old Am. Mut. Fire Ins. Co. v. Renfrow, No. 02-1087. Michael Renfrow, an employee of CD Consulting & Operating Co., had permission to use a company pickup truck after work. Though he didn’t have permission to use the truck for out-of-town personal business, Renfrow drove 40 miles on an outing with Mili Jo Roberts. During the trip, the truck left the highway, killing Roberts. Renfrow was indicted for intoxicated manslaughter. Roberts’ beneficiaries sued Renfrow and CD in a wrongful death action. A jury found Renfrow grossly negligent, but declined to find CD vicariously liable. CD’s insurer, Old American Mutual, filed suit seeking a declaration that it was not liable for Renfrow’s acts. Roberts’ beneficiaries countersued for the amount of the judgment against him. A trial court held for Old American, an intermediate appellate court reversed. The Texas Supreme Court reversed again, holding that Old American was not liable because Renfrow’s use of the vehicle for the out-of-town personal trip was not in accord with the use of the truck that CD had sanctioned. Full text of the decision INTELLECTUAL PROPERTY PTO anti-scam warnings not grounds for lawsuit An ad campaign run by the the U.S. Patent and Trademark Office (PTO) warning of invention-promotion scams was not a “final agency action” giving grounds for a lawsuit, the 4th U.S. Circuit Court of Appeals ruled on Feb. 11. Invention Submission Corp. v. Rogan, No. 02-2461. The PTO launched the campaign, which highlighted one inventor’s case, in January 2002. A later journalistic investigation revealed that the subject of that complaint was Invention Submission Corp. Invention Submission sued the PTO, alleging that the campaign drove it out of business. It also alleged that the ad was not authorized by the Administrative Procedures Act (APA) because it exceeded the Inventors’ Rights Act’s directive to publicize complaints on file with the PTO. A Virginia federal court dismissed the suit for failing to state a case. Vacating that ruling, the 4th Circuit remanded with instructions that the lower court dismiss the suit for lack of subject-matter jurisdiction. It said that for the campaign to constitute an APA violation, it would have to represent a final agency action before a court could review it. “Other than the administrative decision to conduct an advertising campaign at all-a decision that Invention Submission has not challenged-the content of the campaign was not the consummation of any decision making process that determined rights or obligations or from which legal consequences flowed,” it said. Full text of the decision LEGAL PROFESSION Cap on attorney fees for prosecutor misconduct In a first impression case, the 11th U.S. Circuit Court of Appeals held that where a criminal prosecution was “vexatious, frivolous, or in bad faith,” under the federal Hyde Amendment defendants are not entitled to attorney fees in excess of the $125 per hour fee cap provided in 28 U.S.C. 2412(d). United States v. Aisenberg, No. 03-10857. Federal prosecutors charged Steven and Marlene Aisenberg in the disappearance of the couple’s infant daughter. After a federal magistrate issued a report finding serious law enforcement misconduct in the Aisenberg prosecution, the federal government moved to dismiss the indictment. The government conceded that it was liable for the Aisenbergs’ attorney fees under the Hyde Amendment. Although provisions of the Equal Access to Justice Act at 28 U.S.C. 2412(d) limited attorney fees to $125 per hour except in special circumstances, a district court awarded the Aisenbergs $2,680,602, citing the range of hourly fees charged by the Aisenberg’s lawyers. Reversing and remanding for entry of an award within the $125 hourly limit, the 11th Circuit held that the subsection (d) cap applied. It said, “construing the Hyde Amendment to provide a narrow ground of recovery by incorporating the procedures and limitations of � 2412(d) is consistent not only with the principle of narrowly construing waivers of sovereign immunity, but also with the legislative history of the Hyde Amendment.” Full text of the decision TORTS Ant-attack patient’s kin can sue landscape firm The family of a nursing home patient who died from an attack of fire ants can sue a landscape company that contracted to treat ant colonies, but not the home’s builder or grounds designer, the Mississippi Supreme Court ruled on Feb 12. Rein v. Benchmark Construction Co., No. 2002-CA-01885-SCT. Gatha Nell Rein died after being bitten by fire ants as she lay in bed at a nursing home. The ants, attracted to moisture along the nursing home’s outer walls, came in through gaps in the wall. Rein’s family sued the home and the home’s pest control company, who both settled. The Reins also sued Benchmark, the company that built the home; the landscape company that originally designed the grounds and maintained the area until a month before Rein’s death (Growin’ Green Landscape); and the landscape maintenance company that took over from Growin’ Green, Natural Accents. The trial court granted summary judgment to all of the defendants. The Supreme Court affirmed the summary judgment for Benchmark and Growin’ Green, but reversed for Natural Accents. While Growin’ Green’s maintenance contract did not refer to fire-ant control, Natural Accents’ contract did provide for “ant bed control,” so a jury should have the chance to decide if it breached a duty owed to Rein. Full text of the decision

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