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CONSTITUTIONAL LAW Office dating rule doesn’t breach association right A police chief’s order for an officer to stop dating a department administrative assistant did not deprive the officer of his constitutional right to intimate association, the 6th U.S. Circuit Court of Appeals ruled on June 16. Anderson v. City of LaVergne, nos. 02-6094, 02-6248. Fearing possible future claims of sexual harassment, Chief of Police Howard Morris ordered officer Michael Anderson and the assistant to cease their romantic relationship. The pair continued to see each other, but following their breakup, an altercation occurred between the two. Morris at first fired Anderson, then asked him to resign in lieu of making any note of the altercation in his personnel file. Anderson filed a civil rights suit against Morris and the city. A district court granted summary judgment for Anderson. The 6th Circuit reversed, finding that a reasonable jury could only conclude that the city’s general policy forbidding Anderson from dating an office employee of different rank furthered a legitimate governmental interest. Though the rule did touch on an intimate association Anderson had, it did not substantially interfere with his general right to form intimate associations.   Full text of the decision Living wage law is no equal protection breach The City of Berkeley’s Living Wage Ordinance, which requires certain employers to pay their employees wages equaling the cost of living in the locality, didn’t violate the equal protection clause of the Constitution, the 9th U.S. Circuit Court of Appeals held on June 16. RUI One Corp. v. City of Berkeley, No. 02-15762. Enacted in 2000, Berkeley’s Living Wage Ordinance, or Berkeley Ordinance No. 6548-N.S., mandates minimum hourly wages and employee benefits for certain employers that receive some financial benefits from the city. The ordinance was amended to include employers in the Berkeley Marina (the Marina Amendment). The Marina is held in the public trust by the city of Berkeley as trustee. In 1968, Manning’s Inc. made a lease agreement with Berkeley for land located in the Berkeley Marina. After being assigned and subleased on several occasions, the lease was finally assigned in 1996 to RUI One Corp., which agreed to an increase in rent and other stipulations. RUI One filed a declaratory and injunctive relief action alleging that the Living Wage Ordinance and the Marina Amendment were unconstitutional. A California federal court granted summary judgment in favor of the city. The 9th Circuit affirmed. In addressing RUI’s equal protection claim that it was unfair for the city to target the businesses in the Berkeley Marina, the court found that since businesses at the Marina receive so many benefits from the city, such as no competition due to a development moratorium, it is the businesses’ responsibility to give back to the community from which it receives such benefits.   Full text of the decision CRIMINAL PRACTICE Any breach of protective order is separate offense When a protective order states that there be “no contact” with a victim, repeated telephone calls to the victim constitute separate acts for purposes of sentencing, the Maryland Court of Appeals ruled on June 16. Triggs v. State, No. 118. David Triggs was prohibited by a protective order from having any contact with his estranged wife. Over a four-day period, Triggs made more than 50 phone calls to his wife, threatening to rape her and to murder her and the couple’s three children. Triggs was convicted of 18 counts of violating the protective order. A trial court imposed 18 consecutive one-year sentences for each order violation. The intermediate Court of Special Appeals affirmed the protective order sentences. The Court of Appeals affirmed. Triggs’ sentences should not be merged under the rule of lenity, the court concluded. For sentencing purposes, the statute refers to “each offense,” and the fact that the calls were made in rapid succession does not mean that they were part of a single course of conduct. Triggs was clearly not to have any contact with his wife, the court said, and a flurry of calls is no less violative of this restriction than calls placed over a longer period of time would be.   Full text of the decision FAMILY LAW Adoption of baby needs putative father’s consent Because a putative father legitimated a baby before the baby’s birth, the Arkansas Supreme Court decided on June 17 that it is necessary to obtain his consent before the baby may be adopted. In the Matter of the Adoption of SCD, No. 03-1283. A teenage girl gave birth to a baby and immediately put it up for adoption. Three days later, a married couple filed a petition for adoption, alleging that only the consent of the mother and her guardian ad litem were necessary for the adoption. The petition also stated that the putative father’s consent was not required because he had not “legitimated” the child, as required by Ark. Code Ann. � 9-9-206(a)(2). The baby’s putative father then filed a response to the petition for adoption as well as a petition for determination of paternity. The baby’s mother filed a consent to the adoption. In the paternity action, a paternity test showed a 99.99% probability that the putative father was the father, and the trial court declared him to be so. However, the court denied the adoption petition, finding that the putative father had legitimated the baby in accordance with � 9-9-206(a)(2), and that, therefore, his consent to the adoption was required. The Arkansas Supreme Court affirmed. Section 9-9-206(a)(2) requires the consent of the father of the minor if “he has otherwise legitimated the minor according to the laws of the place in which the adoption proceeding is brought.” The court determined that the father had legitimated the baby by filing with the putative father registry, initiating a paternity action and preparing for taking care of the baby should he be awarded custody.   Full text of the decision GOVERNMENT U.S. can invoke FOIA’s work-product exemption A government agency can invoke the attorney work-product exemption of the Freedom of Information Act to withhold a report prepared by a consultant, who is also a lawyer, giving his opinion on a contract dispute, the 4th U.S. Circuit Court of Appeals ruled on June 16. Hanson v. United States Agency for Int’l Development, No. 03-2305. Mark Hanson represents a member of a joint venture that was awarded a construction contract on a sewage treatment plant in Egypt by an agent of the U.S. Agency for International Development (USAID). When a dispute over the construction contract arose, USAID’s agent hired a neutral third party, Richard Roy, to prepare a report assessing the dispute. Hanson sought access to the report under the Freedom of Information Act (FOIA), but USAID refused, citing the attorney work-product exemption of FOIA. The Eastern District of Virginia granted summary judgment to USAID, and held that the document fell under the FOIA exemption for attorney work product prepared in anticipation of litigation. The 4th Circuit affirmed. So long as Roy was being asked to exercise his “extensive legal skills,” the fact that he was also being asked to use his engineering skills to evaluate the dispute did not disqualify him as an attorney, and USAID was allowed to invoke the exemption. The court noted that while FOIA exists to facilitate greater government transparency, “the government has as much right to undisclosed legal advice in anticipation of litigation as any private party.”   Full text of the decision JUDGES Creation of body to hear charges unconstitutional The legislation investing the Judicial Conduct Commission with exclusive authority to discipline judges is unconstitutional, the New Hampshire Supreme Court ruled on June 14. Petition of the Judicial Conduct Committee, No. 2003-798. The legislation creating the commission was amended in 2003 to state that all complaints made against judges shall be directed to the commission. The Judicial Conduct Committee, established through a rule of the state Supreme Court, challenged the constitutionality of the statute in an original proceeding before the high court, arguing that it violated the separation of powers. The state argued that because the statute does not simultaneously prohibit the courts from imposing discipline on judges, it does not encroach on the judicial branch of government. The New Hampshire Supreme Court agreed with the committee. The court’s oversight function entails more than just the power to impose discipline on judges; it also includes the authority to determine how best to regulate their conduct and to determine whether, when and how to impose discipline. The 2003 amendment interfered with that discretion.   Full text of the decision LEGAL PROFESSION Malpractice suit has to be within statutory period In a legal malpractice action brought by a criminal defendant, the Colorado Supreme Court ruled on June 14 that the statute of limitations continues to run while the defendant pursues appellate or post-conviction relief. Morrison v. Goff, No. 03SC116. In 1996, Attorney Richard J. Goff represented Cory A. Morrison in a criminal action where Morrison was convicted and sentenced. Morrison filed a complaint with the Office of the Supreme Court Disciplinary Counsel in 1997, resulting in Goff’s suspension from the practice of law. In 1998, Morrison’s conviction was affirmed. Morrison filed a motion for post-conviction relief alleging ineffective assistance of counsel. While his motion was pending, Morrison filed a legal malpractice action against Goff. The trial court granted summary judgment to Goff, finding that the two-year statute of limitations had elapsed. The intermediate Court of Appeals affirmed. The Colorado Supreme Court affirmed. Colo. Rev. Stat. � 13-80-102(1), 5 states that negligence actions must be brought within two years of when the action accrues. Adopting the two-track approach, which necessitates that a criminal defendant file a professional negligence action within the statutory period but may seek a stay in the action until his criminal matter is resolved, the court explained that the approach furthers the purposes of the statute of limitations by promoting justice, preventing unnecessary delay and avoiding the litigation of stale claims.   Full text of the decision REAL PROPERTY Public safety officer rule bars property injury suit A police officer cannot sue a property owner for injuries suffered while responding to an emergency that arose immediately after the crisis prompting the officer’s presence on the property was over, the Rhode Island Supreme Court ruled on June 16. Walker v. Prignano, No. 2003-631. Providence, R.I., Police Officer Michael Walker was responding to a security alarm call at the residence of Urbano Prignano, the former Providence chief of police, when he heard that an accident had taken place down the street. Running down the stone steps on Prignano’s property, Walker fractured his ankle. Walker sued Prignano for failure to maintain his property. A trial court granted summary judgment to Prignano, citing the public safety officer’s rule, which bars police officers from bringing tort actions against property owners for injuries suffered while confronting crises on the owner’s property. The Supreme Court affirmed, rejecting Walker’s contention that the injury was not a risk typically associated with responding to a security alarm crisis because at the time he was injured, the security alarm crisis was over and he was responding to a new emergency. The emergency compelled Walker to run down the steps, and there was no evidence that Prignano himself had expected Walker’s presence on his property.   Full text of the decision TRUSTS AND ESTATES Intestate stock passing isn’t considered giving When a shareholder of a corporation dies without a will, the Illinois Supreme Court found on June 17 that the shareholder does not give his descendants their inheritance so as to fall within the exception to the mandatory buy-sell provision of a stock-purchase agreement. Roth v. Opiela, No. 96862. Great Southwest Oil & Gas Corp.’s three equal shareholders entered into a stock-purchase agreement with the corporation. The agreement included a mandatory buy-sell provision that stated that when a shareholder dies, his estate would sell and the corporation would buy all the shares he owned at his death. In an amendment to the agreement, the parties added an exception to the buy-sell provision for a shareholder who dies “having specifically bequeathed or otherwise given” his shares of Great Southwest stock to a direct descendant or descendants. When one of Great Southwest’s shareholders died intestate, all his shares of the corporation’s stock went to his children, after their mother disclaimed any interest in her intestate share. In a declaratory judgment action brought by the deceased shareholder’s children arguing that the buy-sell provision did not apply to them, the trial court ruled against them. The complaint named the other shareholders as defendants. The appellate court reversed. The Illinois Supreme Court reversed. Determining that the exception to the mandatory buy-sell provision in the stock-purchase agreement did not apply, the court stated that intestacy cannot be considered an act of giving. The stock in this case was not given to the shareholder’s children but passed to them through the operation of the law.   Full text of the decision

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