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COMMUNICATIONS Carrier’s fight with utility agency is a federal issue Federal courts have jurisdiction over a local telephone carrier’s claim that a state utility commission had misinterpreted interconnection agreement provisions on reciprocal compensation that are based on federal law, the 4th U.S. Circuit Court of Appeals ruled on Aug. 2, on remand from the U.S. Supreme Court. Verizon Maryland Inc. v. Global Naps Inc., No. 03-1448. Under the Telecommunications Act of 1996, existing local carriers are required to share their networks and services for reasonable rates and terms with competitors seeking to enter a local market. One of those terms is interconnection, which allows for calls between customers of each company within the same area. Verizon, in Maryland, signed several of these agreements with competitors, but disputes arose over the costs of calls made to Internet service providers. Verizon stopped paying for these calls, and companies like MCI and Sprint complained to the Maryland Public Service Commission. The commission ruled against Verizon, saying it had to pay for these calls. Verizon eventually sued its competitors and the commission. The district court dismissed the case, the 4th Circuit affirmed and the U.S. Supreme Court vacated, saying jurisdiction did not lie in federal court under general jurisdiction principles. A divided 4th Circuit held that the controversy does present a federal question, so as to confer federal jurisdiction. The court also held that state utility commissions have authority under federal law to impose reciprocal compensation terms in arbitration without violating the 10th Amendment.   Full text of the decision CONSTITUTIONAL LAW Webcams filming pretrial detainees are prohibited The use of cameras violates the 14th Amendment’s prohibition against the punishment of pretrial detainees, the 9th U.S. Circuit Court of Appeals ruled on Aug. 6, affirming the granting of a preliminary injunction to stop the use of Internet cameras (Webcams) in an Arizona jail. Demery v. Arpaio, No. 03-15698. The sheriff of Maricopa County decided to install Webcams in the Madison Street Jail, a facility used exclusively to house pretrial detainees. Images from the Webcam were first streamed to the Maricopa County Web site and then to a Web site called “Crime.com,” and were accessible to the public. Twenty-four former Madison Street Jail detainees sued the sheriff and the county. An Arizona federal court preliminarily enjoined the sheriff from operating the Webcams. The 9th Circuit affirmed, finding that Webcams are not reasonably related to a nonpunitive purpose. The Webcams did not increase security at the jail because there were already closed-circuit video cameras present. Moreover, deterrence is not a legitimate nonpunitive governmental objective, and while accountability and public scrutiny are legitimate governmental interests, they cannot justify the kind of broad public exposure the detainees underwent.   Full text of the decision Nurse may be guilty of failure to report abuse A nurse may be guilty of failure to report a child’s suspicious injury, in possible violation of a mandatory reporting statute that the majority of the Missouri Supreme Court upheld on Aug. 3 as constitutional. State of Missouri v. Brown, No. SC85582. Rescuers came to assist unconscious 2-year-old Dominic James. The rescuers noticed a series of small, round bruises running along his spine and noticed a red bruise under his eye. They shared these observations with the flight crew that airlifted Dominic to a hospital. The flight crew informed Leslie Brown, a hospital nurse. According to Brown, she did not document the bruises or call the child abuse hotline because the foster mother explained that the bruises resulted from the boy leaning back on a booster seat. Dominic recovered, but four days after his release from the hospital, he died of “abusive head trauma.” Brown was charged with the crime of failure to report child abuse under two sections of the Missouri Code mandating that a nurse who “has reasonable cause to suspect that a child has been or may be” abused must advise the division of family services and the physician in charge. Brown moved to dismiss, arguing that the statutes are vague in violation of the 5th and 14th amendments to the U.S. Constitution and art. 1, � 18 of the Missouri Constitution. The trial court agreed and dismissed the case. The Missouri Supreme Court reversed and remanded, holding that the “reasonable cause to suspect” language is “readily understandable by ordinary persons” and is thus not vague.   Full text of the decision CRIMINAL PRACTICE Long prison term OK to ensure drinker gets help Congress would support the confining of a drinker, who had violated his supervised release, long enough to be in a voluntary treatment program, the 10th U.S. Circuit Court of Appeals held on Aug. 2, affirming a sentence twice as long as indicated by the Federal Sentencing Guidelines for a drinker. USA v. Tsosie, No. 03-3209. Vernon Tsosie was drinking when he stabbed and injured two men. After pleading guilty, he served jail time, then had supervised release during which he was required to refrain from excessive drinking and criminal activity. When he violated those conditions, the probation office petitioned to revoke his supervised release. During his revocation hearing, Tsosie repeated his written position that he would not participate in the prison bureau’s voluntary 500-hour substance-abuse treatment program, even if his sentence was long enough to do so. A New Mexico federal court sentenced Tsosie to 18 months in prison with a strong recommendation that he be enrolled in the program. Tsosie appealed, claiming that it was wrong to lengthen his sentence beyond the three- to nine-month range indicated by the sentencing guidelines for the sole purpose of having him participate in the program. The 10th Circuit affirmed, noting that it had never before addressed the specific import of a federal statutory mandate to recognize “that imprisonment is not an appropriate means of promoting correction and rehabilitation,” when a court is determining the length of a term of imprisonment. The court described a legislative distinction between determining an initial term of imprisonment and determining a sentence upon revocation of supervised release, as in Tsosie’s case. The court concluded that Congress wanted courts to consider the medical and correctional needs of an offender in determining how much time he should serve in prison after violating supervised release. The court held it was not unreasonable to find that Tsosie “is more likely to successfully address his alcoholism in a prison setting.”   Full text of the decision HEALTH LAW Family spend-down plan for dementia patient OK A nonadversarial Medicaid spend-down plan for an incompetent beneficiary may be allowed, even when the beneficiary had not expressed a preference for the plan before becoming incompetent, the New Jersey Supreme Court ruled on Aug. 5. In the Matter of Mildred Keri, No. A-70-02. When Mildred Keri was diagnosed with dementia and recommended for full-time care in a nursing home, her two sons devised a plan to spend down Keri’s assets to accelerate her eligibility for Medicaid. They sought to sell her house and transfer her assets in equal shares to themselves, which they would then use to pay for her care until her Medicaid benefits kicked in. The trial court denied the application because Keri had not expressed interest in such a plan before she was rendered incompetent. The appeals court agreed. The New Jersey Supreme Court reversed. When a Medicaid spend-down plan does not interrupt or diminish an incompetent person’s care and does not contravene an expressed prior intent or interest, then the plan clearly provides for the best interests of the incompetent person and satisfies the law’s goal to effectuate decisions an incompetent would make if he or she were able to act.   Full text of the decision IMMIGRATION LAW INS can’t revoke visa of applicant already in U.S. A previously approved immigrant visa petition may not be revoked if the beneficiary is already inside the United States, the 2d U.S. Circuit Court of Appeals ruled on Aug. 2, in a case of first impression. Firstland Int’l Inc. v. United States Immigration & Naturalization Svc., No. 03-6139. The president of Firsthand, a U.S. subsidiary of a Chinese company, came to the United States in 1997 on an L-1A nonimmigrant visa for managerial employees of foreign-based companies. In 1999, Firsthand filed an application on behalf of the president for an immigrant visa petition, known as an I-140, which the U.S. Citizenship and Immigration Services (then called the U.S. Immigration and Naturalization Service) approved. However, when the president moved to adjust his status to lawful permanent resident, the INS did not move on the petition, and instead informed Firsthand that it was going to revoke the I-140 petition. A district court in New York affirmed the INS’ decision. The 2d Circuit vacated and remanded. Because 8 U.S.C. 1155 sets out mandatory notice requirements, courts retain jurisdiction to review whether those requirements have been met. The president did not receive notice from the secretary of state, as required, before he left country-since he was still present in the United States. The plain statutory language does not exempt from the notice requirements beneficiaries who are already in the United States.   Full text of the decision INTELLECTUAL PROPERTY Ex parte seizure order requires no show history Without evidence that a purveyor of counterfeit goods won’t appear in court or will disobey the terms of a temporary restraining order (TRO), an ex parte seizure order is unnecessary, the 3d U.S. Circuit Court of Appeals ruled on July 28. Lorillard Tobacco Co. v. Bisan Food Corp., No. 03-3151. Lorillard Tobacco Co. sued three retailers-all in fixed physical locations-in three separate actions, claiming that the retailers were selling stale, counterfeit versions of the company’s popular Newport menthol cigarettes. In all cases, Lorillard filed an application for a TRO and an ex parte seizure of the cigarettes. In all cases, the TROs were granted, but not the ex parte seizure orders, which were aimed at the cigarettes themselves, as well as any packaging, business records or materials related to genuine or counterfeit Lorillard trademarks. The 6th Circuit affirmed. Unlike the case of Louis Vuitton’s pursuit of street vendors selling knockoff Vuitton bags, where an ex parte seizure order was issued, there was no history here of repeated violations. The TROs provide an adequate remedy where the retailers have complied with their other court obligations, and there is nothing to suggest they would disobey the TROs’ terms.   Full text of the decision PRODUCTS LIABILITY Patients on Propulsid not part of single transaction The products liability claims of 10 patients who took Propulsid, a prescription medication used to treat gastroesophageal reflux disease, did not arise out of the same transaction or occurrence, the Mississippi Supreme Court held on Aug. 5, in a case of first impression. Janssen Pharmaceutica Inc. v. Bailey, No. 2002-CA-00736-SCT. Patients who took Propulsid sued manufacturers Janssen Pharmaceutica and Johnson & Johnson for injuries caused by the medication. The patients were prescribed the medication in different amounts for different ailments by different doctors. They alleged inadequate warnings of side effects and negligent misrepresentation of the medication’s benefits. The trial court entered a directed verdict in favor of the manufacturers on the misrepresentation claim. The jury awarded $10 million in compensatory damages per plaintiff. Reversing the judgment of the trial court, the state Supreme Court found that each plaintiff had a unique medical history and unique injuries. Therefore, no single transaction or occurrence existed to tie all of the plaintiffs together.   Full text of the decision TORTS City had duty to inspect residence construction Refusing to adopt the public duty doctrine, which holds that there is no enforceable duty in tort when a statute or common law imposes upon a public entity a duty to the public at large rather than to a particular class of individuals, the North Dakota Supreme Court found on Aug. 4 that a city had a duty to inspect properly the construction of a residence. Ficek v. Morken, No. 20030295. While a couple was building a two-story addition to their home, city building inspectors visited and inspected the house more than 40 times, ultimately issuing a certificate stating that the building met building codes. Almost six years later, the house was sold to another couple, who began noticing problems with the home’s construction. Experts found that it did not comply with the building codes in various ways and advised the couple either to fix the foundation immediately or to vacate the residence. The couple sued the city for negligence. A jury found the city liable. The North Dakota Supreme Court affirmed. N.D. Cent. Code � 32-12.1-03(1) provides that political subdivisions are liable for damages caused by an employee’s negligence “under circumstances where the employee would be personally liable to a claimant in accordance with the laws of this state.” The court determined that the public duty doctrine is incompatible with North Dakota law.   Full text of the decision TRUSTS AND ESTATES Investment isn’t personal property under will Invested money and “money equivalents” are not considered to be articles of personal property under the provisions of a will, the Montana Supreme Court ruled on Aug. 3. Hanson v. Estate of Bjerke, No. 04-127. A will stated that “[a]ny article of personal property not designated by [a list that was attached to the will] shall be determined to be a content of my house and shall be bequeathed to Teri R. Hanson.” Hanson filed a declaratory action, seeking to clarify her rights under the will and claiming that the will intended to give her all money that was not included on the attached list. The trial court granted summary judgment in favor of Hanson. On motion by the residuary beneficiary, the trial court vacated its summary judgment order. On renewed motions for summary judgment, the trial court determined that only money found inside the home was to be given to Hanson and not money invested outside the home or “money equivalents.” The Montana Supreme Court affirmed. Although the phrase “personal property,” as a legal term of art generally includes money, the court decided to honor the testator’s intent. Because the list included only items of tangible personal property and the will refers to “articles” of personal property, which also focuses on the tangible aspect of the property, only cash found inside the house is to be considered the testator’s personal property.   Full text of the decision

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