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CIVIL PRACTICE Attorney fee law deems pretrial offer a ‘tender’ A prelitigation settlement offer that conditions payment on the plaintiff’s release of future claims against the defendant is an effective “tender” under the statute that bars the recovery of attorney fees when a trial verdict results in a lower recovery amount than what was tendered for settlement, the Oregon Supreme Court ruled on Oct. 21. Fresk v. Kraemer, No. S50443. A year after Miriam Fresk was involved in a car accident, she made a written demand on the other driver, Nathan Kraemer, for $5,500, plus attorney fees. Through his insurance company, Kraemer counteroffered to pay Fresk $3,806. The offer was conditioned on Fresk releasing Kraemer from further liability for her negligence claim. Fresk rejected the offer and, instead, filed suit. A jury awarded Fresk $2,930. The trial court granted Fresk’s later motion for attorney fees. The appeals court reversed, holding that Ore. Rev. Stat. � 20.080(1) bars recovery of attorney fees when a plaintiff recovers less at trial than what was tendered in a prelitigation settlement offer. The Oregon Supreme Court affirmed, finding that Kraemer’s conditional offer met the definition of “tender” in Section 20.080(1). Tender refers to an offer that is either made without conditions or is coupled only with conditions the party making the offer has a right to insist on. Kraemer had a right to insist before a lawsuit was filed that Fresk give up her right to sue him for negligence. Full text of the decision Manageability is a factor in class certification Manageability is a proper factor for consideration in class action certification, the 10th U.S. Circuit Court of Appeals held on Oct. 18. Shook v. El Paso County, No. 03-1397. Four people who were incarcerated in the El Paso County Jail in Colorado Springs, Colo., filed a class action complaint under 42 U.S.C. 1983 against the county Board of County Commissioners and the sheriff. They sought to certify a class of “all persons with serious mental health needs who are now, or in the future will be, confined” in the jail. They invoked the Eighth and 14th amendments to the U.S. Constitution, alleging a life-threatening lack of access to mental health care for inmates. A Colorado federal court denied class certification, stating that under the Prisoner Litigation Reform Act (PLRA) the relief sought was beyond the court’s jurisdiction. The 10th Circuit reversed and remanded, holding that Congress did not intend the PLRA to alter the class certification requirements under Fed. R. Civ. P. 23. The court held that elements of class action manageability and efficiency are not categorically precluded in determining whether to certify a 23(b)(2) class. Here, the federal court had found that the breadth of relief sought made the class action “not manageable” among other things. Nonetheless, the circuit court held, the district court erred by not addressing the traditional Rule 23 factors in denying class certification, and remanded the matter. Full text of the decision CRIMINAL PRACTICE Evidence nonsuppression shows ineffective counsel Counsel’s failure to raise a Fourth Amendment objection to certain evidence constitutes ineffective assistance, even if the evidence was reliable, the 7th U.S. Circuit Court of Appeals ruled on Oct. 19. Owens v. USA, No. 03-1507. Anthony Owens filed a motion under 28 U.S.C. 2255 to set aside his drug conviction and sentence because his trial lawyer fumbled what should have been a successful motion to suppress evidence seized from his house. An Indiana federal court denied the motion. Controlling 7th Circuit law was set forth in the 1996 decision in Holman v. Page, 95 F.3d 481 (1996), which held that a failure to make a Fourth Amendment objection to the admission of evidence, however meritorious the objection, cannot amount to ineffective assistance of counsel if the evidence was reliable. The 7th Circuit reversed and remanded, overturning Holman, and noting that in eight years no case has followed it, and that it had been undermined by subsequent Supreme Court decisions of Glover v. U.S., 531 U.S. 198 (2001), and Williams v. Taylor, 529 U.S. 362 (2000). The court said that the right to counsel is intended to place a criminal defendant in the approximate position that he would occupy if he were learned in the law and could thus defend himself effectively. Had Owens been so learned, he would have ensured that the evidence seized at his house was suppressed. Full text of the decision ENVIRONMENTAL LAW Marine animals have no standing to sue president Cetaceans-the group of aquatic mammals including whales, porpoises and dolphins-did not have standing to sue President George W. Bush under the Environmental Species Act (ESA) to challenge the U.S. Navy’s use of sonar that allegedly causes them serious injury, the 9th U.S. Circuit Court of Appeals held on Oct. 20, in a case of first impression. Cetacean Community v. Bush, No. 03-15866. An attorney sued on behalf of what he called the “Cetacean Community,” challenging the method by which the U.S. Navy used its Surveillance Towed Array Sensor System Low Frequency Active Sonar (SURTASS LFAS), alleging that the sonar system caused serious injury to the cetaceans. The cetaceans sought injunctive relief requiring the administration to subject the SURTASS LFAS to environmental regulatory review. A Hawaii federal district court granted the administration’s motion to dismiss, holding that the cetaceans had no standing. The cetaceans appealed, citing the 9th Circuit’s opinion in another ESA case, Palila v. Hawaii Department of Land and Natural Resources, in which the court held that the Hawaiian Palila bird has “legal status and wings its way into federal court as a plaintiff in its own right.” In affirming and denying the marine animals their day in court, the 9th Circuit held that its statement in Palila was mere dicta and not binding precedent. Without Palila as precedent, the court treated the case as one of first impression. Although the court acknowledged that nothing in Article III of the U.S. Constitution prevented animals from being parties to suits, it held that the ESA did not confer such standing. Full text of the decision EVIDENCE No no-knock warrant is OK for no-knock search Police officers’ “no-knock” search of a home was proper despite the lack of specific permission for a no-knock search in their warrant, the Maryland Court of Appeals held on Oct. 21. State of Maryland v. Carroll, No. 25. After receiving an informant’s tip that Kevin Carroll possessed a large supply of marijuana and several illegal handguns, police in Columbia, Md., obtained a search warrant. However, the requesting officer did not seek a warrant authorizing police entry into the premises to search without knocking-a so-called no-knock warrant. Police conducted the search, stating that, based on Carroll’s previous criminal record, they believed that they would be in danger unless they did the search as a no-knock. Police found firearms and marijuana in Carroll’s home, but Carroll moved to exclude the evidence obtained during the no-knock search. A trial court denied the motion, but the state’s intermediate appellate court reversed, holding that the no-knock search was invalid because police purposely did not seek a no-knock warrant. The state appealed. Reversing, the Maryland high court held that the controlling issue was not what police knew at the time of the warrant application, but what they knew at the time of the search, thus rejecting a rule requiring prior judicial approval for a no-knock entry. Following a U.S. Supreme Court precedent, the court said, “When the issue concerns the form of entry . . . the appropriate inquiry, and thus the decision to be reviewed, is whether the form used was reasonable in light of the facts as known to the officer at the time of the entry.” Full text of the decision HEALTH LAW Licensed doctor can be unlawful practitioner A licensed physician who aids and abets an unauthorized individual in the unlawful practice of medicine may also be prosecuted for unauthorized practice of medicine, the New York Court of Appeals ruled on Oct. 21. People v. Santi, No. 122. Dr. Peter Corines employed Ana Marie Santi as a “medical assistant.” Santi had been a licensed anesthesiologist, but her license to practice medicine was suspended in 1998. On three occasions, Santi performed procedures related to the administration of anesthesia, sometimes while Corines was present. The attorney general filed criminal charges against both Santi and Corines under N.Y. Educ. Law � 6512(1), which prohibits the unauthorized practice of medicine, and both were convicted. The intermediate appellate division affirmed. The New York high court affirmed, finding no exemption in the statute for licensed individuals. Reading an exemption into the statute would enable licensed individuals of all professions to engage in conduct that would otherwise be criminal. Full text of the decision INTERNATIONAL LAW Habitual residency is an intent to quit prior home The definition of habitual residency under the Hague Convention on the Civil Aspects of International Child Abduction is a shared, settled intent to abandon a previous residence, the 11th U.S. Circuit Court of Appeals determined on Oct. 19 in an issue of first impression. Ruiz v. Tenorio, No. 03-14850. A young American woman met a Mexican while she was an exchange student in Mexico. She got pregnant, and the couple married and moved to Minnesota. Their life together was rocky, and after seven years the couple decided to move to Mexico. However, their relationship continued to deteriorate and, after nearly three years of living in Mexico, the wife took her children to Florida, neither intending to return nor telling her husband. A Florida federal court denied the husband’s petition for wrongful removal under the Hague Convention. The 11th Circuit affirmed, determining that the couple never had a shared intention of abandoning their U.S. habitual residence. In addition, objective facts, such as the continuation of marital problems and the fact that no attempt was made to secure permanent legal status or Mexican citizenship for either the wife or the children, indicated that the move was meant to be conditional. Full text of the decision MEDIA LAW Neutral report privilege is not in U.S. Constitution The neutral reportage privilege is not encompassed in either the U.S. or the Pennsylvania constitutions, the Pennsylvania Supreme Court ruled on Oct. 20. Norton v. Glenn, No. J-122-2003. During and after a 1995 Parkersburg Borough Council meeting, one council member, William T. Glenn, accused fellow members James B. Norton and Alan M. Wolfe of being homosexuals and child molesters. The statements were reported in an article in the Chester County Daily Local. Norton and Wolfe filed defamation actions, naming Glenn and several newspaper-related entities as defendants. The trial court found Glenn liable, but determined that the neutral reportage privilege, which, the trial court said, derived from the fair report privilege, precluded recovery against the media defendants. The appellate court affirmed. The Pennsylvania Supreme Court reversed, ruling that the neutral reportage privilege has not been recognized by the U.S. Supreme Court as being grounded in the First Amendment. A concurring opinion agreed that judicial precedent did not support recognition of the privilege, but noted (a) the chill its ruling would have on reporters covering government proceedings, and (b) that the fair report privilege could still be raised on remand for a new trial. Full text of the decision SCHOOLS AND EDUCATION Religious schools can be denied public funding Maine’s exclusion of sectarian schools from its statutory subsidization of limited private school tuition is not an equal protection violation, the 1st U.S. Circuit Court of Appeals held on Oct. 22. Eulitt v. Maine Dept. of Education, No. 04-1496. By statute, Maine lets districts make tuition payments to private schools. But Maine law expressly bars school districts from paying tuition to “sectarian” private schools. The parents of Cathleen Eulitt, a high school student attending a Catholic high school, sued various state educational authorities, alleging that Maine Rev. Stat. Ann. tit. 20-A � 2951(2) violates the equal protection clause of the 14th Amendment because it discriminates on the basis of religion. On cross-motions for summary judgment, a Maine federal court held that the equal protection clause does not compel the provision of public funds for private sectarian schools, even when a school district has chosen to subsidize the payment of tuition to private nonsectarian schools. The 1st Circuit affirmed, concluding that � 2951(2) imposes no substantial burden on religious beliefs or practices and therefore does not implicate the free exercise clause, because it does not prohibit or prevent parents from choosing religious education for their children. The court said that Locke v. Davey, 124 S. Ct. 1307 (2004), confirms that the free exercise clause’s protection of religious beliefs and practices from direct government encroachment does not translate into an affirmative requirement that public entities fund religious activity simply because they choose to fund the secular equivalents. Full text of the decision TRUSTS AND ESTATES Creditor may pursue funds outside estate The North Dakota Department of Human Services may pursue funds outside of a community spouse’s estate that were transferred to avoid the decedent’s creditors, the North Dakota Supreme Court found on Oct. 20. In the Matter of the Estate of Bergman, No. 20030356. In 1993, a husband purchased a $50,000 single-payment annuity from Lutheran Brotherhood. In 1995, he transferred $5,000 from the annuity to a Lutheran Brotherhood joint money market account for himself and his wife. He applied for Medicaid benefits, but in order to qualify under the impoverished spouse rules, he transferred the money from the annuity and the money market account to his wife. She used the money to open a Lutheran Brotherhood money market account in her name and later transferred the bulk of the money into an investment account. In 1998, the husband died. When told by counsel that her estate may be responsible for reimbursing the Medicaid benefits provided to her husband, the wife transferred the money from her accounts into a personal checking account. Prior to her death in 2002, she wrote checks for almost the entire amount that was in her personal checking account as gifts to her four children. After her death, the department filed a claim against her estate for the Medicaid benefits provided to her husband. The trial court dismissed the action. The North Dakota Supreme Court reversed and remanded, concluding that the wife’s gifts to her children must be voided, that the department was a creditor and that the transfers were made without any reasonably equivalent value in exchange. Full text of the decision

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