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CIVIL PRACTICE State with more at stake prevails in choice of law In a choice-of-law issue, the North Dakota Supreme Court ruled on Sept. 13 that North Dakota had more significant interests in the issues involved in an accident case. Nodak Mutual Ins. Co. v. Wamsley, No. 20030374. While in Montana, North Dakota residents Alan and Sharon Wamsley were killed when their Chrysler was struck by an oncoming vehicle. The at-fault driver’s insurer paid its policy limits of $25,000 per person to the Wamsleys’ estate. The Wamsleys owned three vehicles, including the Chrysler, each of which was insured with Nodak Mutual Insurance Co., a North Dakota insurer, with underinsured motorist coverage of $100,000 per person per accident. Under North Dakota law, unlike under Montana law, policy coverages may not be stacked. The Wamsleys’ heirs sued the at-fault driver’s estate and Nodak in Montana court. After Nodak paid $200,000 to the Wamsleys’ estate under the Chrysler policy, it brought a declaratory judgment action in North Dakota seeking a declaration that the Wamsleys’ other two policies do not apply to the accident and cannot be stacked. The trial court granted summary judgment in Nodak’s favor. The North Dakota Supreme Court affirmed. Based on predictability of results and advancement of the forum’s governmental interests, the court concluded that North Dakota law applied. All contacts other than the location of the accident occurred in North Dakota, and North Dakota was the state where the policy was applied for, negotiated, paid for and issued. Full text of the decision CRIMINAL PRACTICE Failure to obtain affidavit may be lack of diligence A person convicted in state court is not entitled to an evidentiary hearing in his application in federal court if he lacked the diligence to develop the facts with available means other than a hearing, such as affidavits, the 10th U.S. Circuit U.S. Court of Appeals held on Sept. 13. Cannon v. Mullin, No. 03-5008. Jemaine Monteil Cannon was convicted in Oklahoma state court of first-degree murder and sentenced to death. After the Oklahoma Court of Criminal Appeals denied his direct appeal and state petition for post-conviction relief, Cannon filed an application for relief under the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. 2254. An Oklahoma federal court rejected Cannon’s request for an evidentiary hearing and denied all relief. Cannon appealed to the 10th Circuit, claiming ineffective assistance of counsel, including a claim of improper juror contact that certain witnesses would testify about if given the chance at an evidentiary hearing. The 10th Circuit affirmed, noting that Cannon had failed to produce any affidavits. Section 2254(e)(2) of the antiterrorism act provides that the court shall not hold an evidentiary hearing on a claim if the applicant has failed to develop its factual basis in state court proceedings. A failure to develop the factual basis is only established if there is a lack of diligence attributable to the prisoner or his counsel. On this question of first impression, the 10th Circuit held that an applicant has demonstrated a lack of diligence if he fails to utilize a means other than a hearing to develop the facts. Full text of the decision RICO doesn’t apply to crime-family shootings The shootings of two members of the Genovese crime family were not motivated by the shooters’ desire to advance within the family, the 2d U.S. Circuit Court of Appeals ruled on Sept. 14, overturning convictions for murder in aid of racketeering. United States v. Bruno, nos. 03-1349 and -1351. Mario Fortunato and Carmine Polito were affiliated with a Genovese family crew. They played cards with Polito’s cousin, Sabatino Lombardi, and Michael D’Urso, at D’Urso’s social club. After spending time in prison for his part in an armed robbery, Polito was still heavily in debt to D’Urso and Lombardi, who were also loan sharks. A few days before Polito’s debt was due, he and Fortunato recruited three others for another card game with Lombardi and D’Urso, during which Lombardi was killed and D’Urso shot in the head. The five were charged with Racketeer Influenced and Corrupt Organizations Act-related offenses, and Polito and Fortunato were convicted of murder in aid of racketeering. The 2d Circuit reversed. Polito owed the victims large amounts of money, felt D’Urso had set him up in the robbery and wanted to switch crews. Fortunato’s contacts with the family were limited to tangential involvement in the robbery and a regular card game with family members. There was no evidence that the purpose of the shootings was to enable Polito or Fortunato to move up in the family, or to further the family racketeering business. Full text of the decision Moussaoui can confront, but faces death penalty In an opinion redacted for alleged national security reasons, the 4th U.S. Circuit Court of Appeals on Sept. 13 partially reversed and partially affirmed U.S. District Judge Leonie Brinkema’s rulings in the case of alleged Sept. 11 conspirator Zacharias Moussaoui. United States v. Moussaoui, No. 03-4792. Zacharias Moussaoui was arrested for immigration violations in August 2001. He was later indicted on conspiracy charges related to the Sept. 11, 2001, attacks. Sanctioning the government for its refusal to give Moussaoui access to witnesses it was holding, Brinkema refused it leave to seek the death penalty, ruling that the withholding of such information would deny Moussaoui the ability to defend himself against the charges. The district court also ordered that depositions be taken of some of the witnesses. The government appealed. Affirming in part and reversing in part, the 4th Circuit held that Brinkema was correct to hold that Moussaoui should have access to witnesses, though, for national security reasons, the statements of the witnesses could be introduced in lieu of their testimony. However, the 4th Circuit reversed on the death penalty issue, holding that the substitution of witness statements for testimony does not jeopardize Moussaoui’s rights. Full text of the decision ‘Blakely’ does not apply to prior convictions A jury was not necessary to enhance a sentence when that enhancement was based on a prior criminal conviction, the 9th U.S. Circuit Court of Appeals ruled on Sept. 13 applying the U.S. Supreme Court’s decision in Blakely v. Washington. United States v. Quintana-Quintana, No. 03-50254. The U.S. Supreme Court in Blakely held that facts increasing penalties for crimes beyond the statutory maximum must be presented to a jury and proved beyond a reasonable doubt. Oscar Quintana-Quintana was convicted of being a deported alien present in the United States. His sentence was enhanced based on a prior conviction for assault with a deadly weapon. The 9th Circuit affirmed. In the interim, the high court issued the Blakely opinion, and he moved for a rehearing en banc, arguing that, based on Blakely, his sentence enhancement should have been decided by the jury. In denying the motion for rehearing, the 9th Circuit held that Blakely did not apply to cases such as Quintana-Quintana’s, where the sentence enhancement was based on a prior conviction. The court said, “Quintana’s argument is foreclosed by the express terms of Blakely itself. In Blakely, the Supreme Court explicitly preserved its prior holding . . . that a sentencing enhancement based on a defendant’s prior conviction does not have to be presented to a jury.” Full text of the decision ELECTION LAW County election officials can’t reject vote initiative A county election commission exceeded its authority when it refused to place on the ballot a referendum ordinance regarding a privilege and payroll tax, the Tennessee Supreme Court held on Sept. 15. The City of Memphis v. Shelby County Election Comm’n, No. W2004-02182-SC-RDM-CV. The ordinance-passed by the Memphis City Council and signed by the mayor-would have taxed entities for the “privilege of engaging in certain vocations, occupations, callings and employment.” The Shelby County Election Commission, however, would not place the measure on the ballot because of an opinion from a state election official that so-called privilege/payroll taxes were unconstitutional unless authorized by the state Legislature. The city challenged the refusal, but a chancellor upheld the commission’s discretion to refuse to place the ordinance on the ballot. The Tennessee Supreme Court reversed, holding that the commission’s members were ministerial officers whose duties include ensuring that ballot initiatives fulfill technical requirements. They don’t, however, have the discretion to accept or reject initiatives based on their constitutional validity. The refusal to place the measure on the ballot violated the principle of separation of powers. Full text of the decision Court wrong to keep Nader off Florida ballot A trial court erred in issuing an injunction keeping Ralph Nader off Florida’s ballot for the 2004 presidential election because the Florida ballot access law it relied upon was so vague it did not give Nader’s affiliated party, the Reform Party of Florida, sufficient notice that its candidates would not qualify, the Florida Supreme Court held on Sept. 17. Reform Party of Florida v. Black, No. SC04-1755. Ralph Nader and his running mate, Peter Camejo, received the nomination of the Reform Party of Florida, and sought to be placed on Florida’s ballot for the 2004 presidential election. Various individuals filed suit, alleging that Nader and the party did not qualify under � 103.021(4)(a) of the Florida Statutes, because Nader and Camejo were not affiliated with a national party nominated by a national convention, a requirement for ballot access under the law. The plaintiffs also argued that there was no actual affiliation between the Florida Reform Party and the national party. A trial court issued a temporary injunction barring Nader from the ballot. The Florida Supreme Court reversed, holding that, in enacting the ballot access law, the Florida Legislature had failed to specify whether the terms “national party” and “national convention” should have a strict or broad interpretation. The law did not give the Reform Party adequate warning that it would not qualify for the ballot. The court said, “In the absence of more specific statutory criteria or guidance from the Legislature we are unable to conclude that a statutory violation occurred” when Nader and Camejo were placed on the ballot. Full text of the decision GOVERNMENT No FOIA exemption in 2003 appropriations bill The consolidated Appropriations Resolution does not create for ATF databases an exemption from the Freedom of Information Act’s (FOIA) general-disclosure obligation, the 7th U.S. Circuit Court of Appeals held on Sept. 16. City of Chicago v. ATF, No. 01-2167. The city of Chicago submitted a request pursuant to FOIA for information from a federal database maintained by the ATF, the U.S. Department of the Treasury’s Bureau of Alcohol, Tobacco, Firearms and Explosives, regarding the sale of firearms and the tracing of firearms that have been recovered by law enforcement. ATF refused to release the information, based on certain exemptions in FOIA. The 7th Circuit ruled that ATF must release the information, and the Supreme Court granted certiorari on ATF’s appeal. While the appeal was pending, Congress passed the Consolidated Appropriations Resolution of 2003, which said that “no funds . . . shall be available” for the release of the records in question. The city offered to cover all costs incurred in retrieval of the documents. The Supreme Court returned the case to the 7th Circuit for a determination of the effect, if any, that � 644 of the appropriations resolution had on the case. ATF argued that the effect of the law is to exempt the information in the databases from FOIA’s general obligation of disclosure. But the circuit court concluded that the statutes preclude the use of federal funds for the retrieval of the information, but do not substantively change the FOIA. The 7th Circuit ordered the ATF to give the city access to the databases. Full text of the decision PRODUCTS LIABILITY Flint suppliers have no duty to warn customers Suppliers of flint to the abrasive blasting industry have no duty to warn their customers’ workers of the dangers of inhaling silica dust, the Texas Supreme Court ruled on Sept. 17. Humble Sand & Gravel Inc. v. Gomez, No. 01-0652. Raymond Gomez contracted silicosis after working in the abrasive blasting industry for more than six years in the 1980s and 1990s. Gomez sued more than 20 parties, and settled with all but Humble Sand & Gravel Inc., a supplier of bags of flint on one of Gomez’s jobs. The bags contained a label warning that use of flint could be injurious to health without proper safety precautions. The labels did not warn that inhalation of silica dust could cause death or disability. A jury awarded Gomez more than $2 million. An appeals court affirmed. The Texas Supreme Court reversed and remanded, holding that suppliers have no duty to warn their customers that inhalation of silica dust is disabling because that fact is well known in the industry. Whether suppliers have a duty to warn their customers’ employees depends on the likelihood of serious injury from the failure to warn; the burden on the supplier in giving such a warning; the feasibility and effectiveness of a warning; the reliability of operators to warn their own employees; the existence and efficacy of other protections; and the social utility of requiring or not requiring suppliers to give the warnings. Full text of the decision

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