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CIVIL PRACTICE Court error revives 1971 prison gang-rape case A woman claiming that she was gang raped in a Maine county jail in 1971 will not have her long-delayed civil rights claim against the county barred by the applicable statute of limitations, the 1st U.S. Circuit Court of Appeals said on March 11. Douglas v. York County, No. 02-2086. Reversing a Maine federal court decision, the circuit court ruled that the lower court had abused its discretion when it found ambiguity in an expert witness’s report and then, based on that ambiguity, reframed the issue before the court and granted summary judgment for the county. The lower court then denied the woman’s motion to reconsider. The woman, Kristin Douglas, filed suit 31 years after the alleged rape, asserting that the statute was tolled by her long-term mental illness. The county sought summary judgment, saying that Douglas was not so ill that she could not protect her rights. Douglas’ expert opined that she could not deal with the trauma of her rape until she received proper therapy. Focusing on Douglas’ mental state at the time of the rape, the court found her expert’s report to be ambiguous and granted summary judgment to the county. When Douglas moved for reconsideration, submitting an affidavit clarifying that her mental state at the time of the rape was not at issue, the district court denied the motion. Reversing, the 1st Circuit said it was “simply unfair . . . for the district court, after having switched the basic issue without giving the parties adequate warning, to refuse to accept the prompt proffer of material relevant to the newly raised issue.” Full text of the decision CONSTITUTIONAL LAW Birth control law doesn’t breach First Amendment The Women’s Contraception Equity Act, a California law which mandates that certain health and disability insurance contracts covering prescription drugs must also cover prescription contraceptives, does not violate the free exercise clause of the United States and California constitutions, the California Supreme Court ruled on March 1. Catholic Charities of Sacramento Inc. v. Superior Court, No. S099822. Catholic Charities of Sacramento offers health insurance to its employees, including coverage for prescription drugs, but not for prescription contraceptives. While church-affiliated, Catholic Charities is not considered a “religious employer” under the act because its purpose is not to inculcate religious tenets. Religious employers may exclude coverage for “contraceptive methods that are contrary to the religious employer’s religious tenets.” A trial court denied Catholic Charities’ request for a declaratory judgment that the act was unconstitutional and for an injunction barring its enforcement. Affirming, the state Supreme Court upheld the act, ruling that it serves the compelling state interest of eliminating gender discrimination. Women, during their reproductive years, spend as much as 68% more than men in out-of-pocket health care costs as a result of prescription contraceptives and unintended pregnancies, the court said. Full text of the decision Marijuana conviction survives faulty warrant Despite a defective warrant, which resulted in a search that violated the Fourth Amendment rights of defendants accused of manufacturing marijuana, a Tennessee federal court was right to admit unlawfully seized evidence because the police officers applying for the warrant had reasonable grounds to do so, the 6th U.S. Circuit Court of Appeals held on March 9. United States v. Carpenter, nos. 01-5368, 01-5370, 01-5446. Police conducting aerial surveillance spotted marijuana growing in fields near the property of Lonnie and Sheila Carpenter. Following the issuance of a warrant, police searched the Carpenter residence and seized marijuana. A trial court quashed the Carpenters’ motion to suppress unlawfully seized evidence. The Carpenters appealed their conviction, arguing that the warrant was not justified because the only information it contained was that the plants were near their residence. After a divided 6th Circuit panel affirmed in part and reversed in part, the court granted en banc review. Affirming, the 6th Circuit applied the good-faith exception to the exclusionary rule. Though the court conceded that the warrant had failed to set forth sufficient facts to indicate that incriminating evidence would be found at the Carpenters’ residence, it held that the trial court did not err in refusing to suppress because the officers’ belief that the warrant was justified was a reasonable one. Full text of the decision CRIMINAL PRACTICE Restitution sum is based on agreement of parties In a restitution sentence under the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. 3663A, the amount of restitution is based on the mutual understanding of the parties when entering a plea agreement, not on the language of the indictment, the 5th U.S. Circuit Court of Appeals held on March 10. United States v. Adams, No. 03-30219. Johnny Adams was charged with fraud for allegedly staging automobile collisions to collect insurance. During plea negotiations, Adams claimed that the accidents were not staged, and that his only crime was to fraudulently increase the amounts of the claims. The plea agreement was changed, and Adams pleaded guilty. A trial court ordered restitution of about $170,000 based on the offenses charged in the indictment. Adams appealed, arguing that his restitution should have been limited to $34,833, the amount of harm caused by the narrowed accusations. Reversing, the 5th Circuit agreed that in a plea agreement, unlike in a jury verdict, the amount of restitution under MVRA is based on the mutual understanding of the parties, not on the language of the charging documents. Full text of the decision IMMIGRATION LAW Judge wrong to question good faith of marriage There was enough evidence of intent to marry in good faith on the part of a Korean national and a Hawaiian citizen that an immigration judge was wrong to impose her own inferences and conjectures into the decision of whether to deport the wife, the 9th U.S. Circuit Court of Appeals ruled on March 11. Damon v. Ashcroft, No. 02-71677. Sung Hee Damon, a Korean national, met her future husband, Scott Damon, on a visit to Hawaii. Sung Hee returned to Korea, but came back six days later to marry Scott and live with him in Hawaii. The couple divorced five years later. Five years after Sung Hee’s application to remove her conditional permanent resident status, an immigration judge determined that Sung Hee and Scott had not entered into the marriage in good faith, and that she should be deported to Korea. The judge found it implausible that Sung Hee would marry someone she barely knew, especially someone without a common cultural or language background. The judge noted that the wedding ceremony was nonreligious and that Sung Hee did not take Scott’s last name. The 9th Circuit reversed and remanded. The court found evidence that the couple entered into the marriage in good faith, and not to procure an immigration benefit: they courted, had a wedding ceremony, shared a bank account and lived together for more than a year. The court noted that many women today don’t take their husbands’ last names, that civil ceremonies are common and that in America, unions are frequently between people of different backgrounds and ethnicities. Full text of the decision INSURANCE LAW Exclusion doesn’t apply to sex abuse alert failure The criminal act exclusion in a psychologist’s liability policy precludes coverage for claims of criminal failure to report sex abuse, but not claims of negligent failure to warn, the 8th U.S. Circuit Court of Appeals held on March 11. American Home Assur. Co. v. Pope, No. 03-2815. Lester Pope sexually abused his young daughter for nine years. The girl’s mother told Dr. Bruce Strnad, a now-dead psychologist who had been treating Pope. After admitting his behavior, Pope abandoned therapy and continued to abuse his daughter. The girl sued Strnad in Missouri state court, alleging negligent failure to warn of future danger of sexual abuse. Strnad reported the claim against his professional liability insurance policy, issued by American Home, which then filed a declaratory judgment in a Missouri federal court. The court granted American Home summary judgment, finding that the policy’s exclusion of coverage for criminal conduct precludes coverage for the victim’s entire suit. Reversing, the 8th Circuit held that the victim’s claim that Strnad had breached his common law duty to warn her of future danger of abuse did not fall within the policy’s criminal act exclusion. Failure to warn a victim of possible future abuse is not a crime, the court said. Full text of the decision INTERNATIONAL LAW Damages for mental pain require bodily injury In an action stemming from an aircraft mishap at New York’s John F. Kennedy International Airport, the 2d U.S. Circuit Court of Appeals held on March 8 that, under the Warsaw Convention, mental injuries sustained in an aircraft accident are compensable only when they are caused by bodily injuries. Ehrlich v. American Airlines Inc., No. 02-9462. Gary and Maryanne Ehrlich were on an American Eagle Flight from Baltimore to New York. Upon arrival, the plane overshot the runway and nearly plunged into the water, requiring the emergency exit of all passengers. The Ehrlichs sued American, claiming both physical and mental injuries, and arguing that nothing in the Warsaw Convention prevented damages from being awarded for mental injuries not stemming from bodily injuries. A district court granted partial summary judgment to American, and the Ehrlichs appealed. Affirming, the 2d Circuit held that, under the Warsaw Convention, mental injuries could be compensated only if they were caused by physical injuries. Noting that the only official text of the convention was French, the court said, “Although the Ehrlichs contend that nothing in Article 17 precludes carriers from being held liable for mental injuries that accompany, but are not caused by, bodily injuries, that argument ignores the phrase ‘dommage survenu en cas de . . . lesion corporelle.’ This phrase translates as ‘damage sustained in the event of . . . bodily injury.’ ” Such language requires a claim for damages under Article 17 to “ be predicated upon some . . . identifiable injury to the body,” the court said. Full text of the decision LABOR LAW National Guard techies can bargain as civilians 10 U.S.C. 976, which prohibits bargaining on behalf of members of the armed forces over the terms or conditions of military service, does not prohibit bargaining over a union proposal concerning military training duties assigned to National Guard technicians, the U.S. Circuit Court for the District of Columbia held on March 12. Association of Civilian Technicians v. Federal Labor Relations Auth., No. 03-1141. Civilian technicians in the National Guard serve as federal civilian employees and military members of the Guard. During collective bargaining, the union representing civilian technicians in the Kansas National Guard submitted a proposal regarding the assignment of military training duties to technicians. The Kansas National Guard refused to negotiate and the union appealed to the Federal Labor Relations Authority. The authority found that the duties in the proposal concerned a technician’s military, not civilian, status. The D.C. Circuit reversed. Conceding that the proposal involved military duties, the court determined that the important issue is the technician’s status at the time the duties are performed. There was no violation of the statute, it said, because the duties to be performed were during hours of civilian employment. Full text of the decision REAL PROPERTY City can condemn homes for economic benefit A city and its developer may exercise eminent domain over private homes for economic benefit, the Connecticut Supreme Court held on March 9. Kelo v. New London, No. SC16742. The city of New London, Conn., plan- ned with a private nonprofit development corporation to develop the Fort Trumbull waterfront area and revitalize an economically distressed city. Real property owners appealed from a trial court’s judgment denying their request for permanent injunctive relief to prevent condemnation by eminent domain of their property. The state Supreme Court affirmed, holding that economic development is a “public use” under the state and federal constitutions. According to the court, the public purpose of the condemned property is not altered by transfer of land to private entities. It held that delegation of eminent domain power to the development corporation was not unconstitutional, because the development corporation is the city’s statutorily authorized agent for the implementation of the development plan and is not acting to further its own operations. Although the property owners and their experts claimed there were alternatives that would permit office space intended for one of the parcels to be built as planned without taking homes, the high court found that the takings of those homes were not unreasonable. The court held that the takings were for reasonably foreseeable needs, were not impermissibly speculative and did not interfere with equal protection rights even though the development corporation spared an Italian dramatic club located on the property, but condemned certain homes. Full text of the decision

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