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CIVIL PRACTICE ‘Not prayed for’ judicial interest on award barred Judicial interest did not accrue because the interest was not “prayed for” or “allowed by law” in a case involving attorney fees awarded in a workers’ compensation judgment, the Louisiana Supreme Court held on Oct. 29. Smith v. Quarles Drilling Co., No. 04-C-0179. Following an award for workers’ compensation benefits, penalties and attorney fees, an employee contested the attorney fees amount. A Louisiana intermediate court increased the amount of the attorney fees. Both judgments were silent as to interest. After the employer paid the additional attorney fees, the employee filed a motion seeking judicial interest accrued on the award. The workers’ compensation judge denied the motion. The intermediate court reversed. The Louisiana Supreme Court reversed, holding that La. Code Civ. Proc. Ann. art. 1921 provides that “[i]nterest in the judgment shall be awarded as prayed for or as allowed by law.” Since the employee never asked for interest and, under La. Rev. Stat. Ann. � 23:1201.3, interest in workers’ compensation cases is allowed only on awards of compensation and not attorney fees, the high court reinstated the judgment of the workers’ compensation judge. Full text of the decision CIVIL RIGHTS AIDS patient’s ADA suit over yard upkeep is OK A district court erred in dismissing an AIDS patient’s suit claiming that a city had violated both the Americans With Disabilities Act (ADA) and the Fair Housing Amendments Act (FHAA) when it determined his yard to be a nuisance, cleaned it and placed a lien on his home to pay for the cleanup, the 9th U.S. Circuit Court of Appeals stated on Oct. 27. McGary v. City of Portland, No. 02-35668. The city of Portland, Ore., notified AIDS patient Richard McGary that trash and debris on his property constituted a nuisance in violation of city ordinances, and ordered him to clean his yard. The city deemed an AIDS advocacy organization’s cleanup to be insufficient, cleaned the yard itself and placed a lien of more than $1,800 on the property to pay for it. McGary sued the city, claiming violations of the ADA and the FHAA because he had not been given additional time to clean the property. A district court dismissed the suit. On the ADA claim, it held that McGary had failed to show that the city had acted “by reason of” his disability, because nondisabled residents were also subject to the nuisance-abatement ordinance. On the FHAA claim, the court held that McGary had failed to show that the city had denied him equal opportunity to “use and enjoy” his home. Reversing and remanding, the 9th Circuit held that the issue was not whether nondisabled residents were also subject to the ordinance or whether he was denied use of his home. The issue was whether the city provided McGary reasonable accommodation. The court said, “We have repeatedly recognized that facially neutral policies may violate the ADA when such policies unduly burden disabled persons, even when such policies are consistently enforced.” Full text of the decision CONSTITUTIONAL LAW Georgia hate crimes law unconstitutionally vague Georgia’s hate crimes law violated both the United States and Georgia constitutions because it was unconstitutionally vague, the Georgia Supreme Court held on Oct. 25. Botts v. Georgia and Piscotta v. Georgia, nos. S04A0798 and S04A0799. Christopher Botts and Angela Piscotta were charged with aggravated assault for the beating of a couple in Atlanta. Arguing that they were motivated by racial bias, state prosecutors sought sentence enhancements based on Georgia’s hate crime penalty statute, Ga. Code Ann. � 17-10-17, which provides for enhanced penalties where “the defendant intentionally selected any victim or any property of the victim as the object of the offense because of bias or prejudice.” Although Botts and Piscotta pleaded guilty, they challenged their sentence enhancements, arguing that the statute violated the First, Fifth, Eighth and 14th amendments to the U.S. Constitution, as well as the Georgia Constitution, because it was unconstitutionally vague. The trial court denied their motions. Reversing, the Georgia Supreme Court held that the law was unconstitutionally vague, violating due process by failing to define “bias or prejudice.” The court said that, under the law, “A rabid sports fan convicted of uttering terroristic threats to a victim selected for wearing a competing team’s baseball cap; a campaign worker convicted of trespassing for defacing a political opponent’s yard signs; a performance car fanatic convicted of stealing a Ferrari-any ‘bias or prejudice’ for or against the selected victim or property . . . can serve to enhance a sentence.” Full text of the decision CRIMINAL PRACTICE Victim’s mortgage losses must be made good Restitution for mortgage payments qualified as “pecuniary losses,” the Montana Supreme Court found on Oct. 26. State v. Good, No. 04-099. Brian Huseby was subjected to aggressive behavior by his neighbor, Danny C. Good. Huseby moved into a new home, but for a period of five months he had to pay the mortgage on both properties until he could find a renter for his former residence. Good’s threatening behavior culminated in an incident where he nearly ran Huseby off the road and threatened Huseby’s daughter with sexual assault. Good pleaded no contest to assault and disorderly conduct. In addition to regular sentencing, the trial court imposed restitution of $6,035 that included the costs of Huseby’s extra mortgage payments. The Montana Supreme Court affirmed, holding that Mont. Code Ann. � 46-18-241 requires “an offender to make full restitution to any victim who has sustained pecuniary loss, including a person suffering an economic loss.” Section 46-18-243(1) defines “pecuniary” as “all special damages . . . that a person could recover against the offender in a civil action arising out of the facts or events constituting the offender’s criminal activities.” The court concluded that Huseby incurred the dual mortgage payments directly as a result of his neighbor’s behavior. Full text of the decision ENVIRONMENTAL LAW Multistructure pig farm is one CERCLA ‘facility’ A two-lot pig farm housing 16 buildings and several lagoons constitutes one “facility” that must report releases of hazardous substances if the emission reaches the reportable minimum under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the 10th U.S. Circuit Court of Appeals held on Oct. 28. Sierra Club v. Seaboard Farms Inc., No. 03-6104. Ammonia was released from contiguous pig farms known as Dorman Farms North and South, both owned and operated by Seaboard Corp. Each farm includes eight buildings, which are separated by 40 to 100 feet. They use a common waste-management system. CERCLA’s Section 103 requires that the person in charge of a “facility” must report release of hazardous substances to the National Response Center. An Oklahoma federal court granted summary judgment to Seaboard on the Sierra Club’s claim that Seaboard had failed to report the release of ammonia in quantities exceeding the reportable minimum. Seaboard argued that each of the various lagoons, barns and land application areas was a separate facility, and that reporting obligations are only triggered when an individual facility on the site exceeds the reportable quantity. The 10th Circuit reversed on its first occasion to address this issue, citing CERCLA’s definition of facility as “any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located.” 42 U.S.C. 9601(9)(B). The court described part B as a “catch-all,” which unambiguously dictates that the entire contiguous Dorman site is one facility. Full text of the decision EVIDENCE Objective test applies to threat to kill president A letter threatening to kill the president is a “true threat” if it meets the objective standard, the 7th U.S. Circuit Court of Appeals held on Oct. 27. USA v. Fuller, No. 03-4081. Prison inmate Charles Fuller sent a letter to the FBI stating that, upon release, he and his friends “are going after all of Americas [sic] rulers” and that “Bush is first.” The letter concluded “I will kill him myself!” Fuller pleaded guilty to threatening to kill President Bush in violation of 18 U.S.C. 871, which provides fines and/or imprisonment for anyone who “knowingly and willfully deposits . . . in the mail . . . any threat to take the life of . . . the President of the United States.” Fuller appealed his conviction on grounds preserved in the plea agreement. To convict under the statute, the government must prove that the threat was a “true threat.” An Indiana federal court refused to allow medical-expert testimony regarding “institutionalization” offered to establish that rather than intend to kill the president, Fuller feared freedom and sought to prevent his release from prison. The 7th Circuit affirmed, holding as a matter of first impression that the objective standard is the appropriate standard for applying � 871. According to that section, a communication is a true threat “if a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily harm upon or to take the life of the President.” Full text of the decision FAMILY LAW No neglect if mother lets child witness her abuse The definition of a “neglected child” in the Family Code does not include instances where the sole allegation of neglect is that the parent or guardian allowed the child to witness abuse against that parent or guardian, the New York Court of Appeals ruled on Oct. 26 in response to a certified question from the 2d U.S. Circuit Court of Appeals. Nicholson v. Scoppetta, No. 113. Sharwline Nicholson filed a federal class action against New York City Administration for Children’s Services on behalf of mothers and their children who were separated because the mothers had allowed their children to observe domestic violence perpetrated against them. The district court found that the city agency unnecessarily and routinely charged mothers with neglect in those situations. The 2d Circuit postponed ruling on whether the agency’s policy was unconstitutional, pending resolution of the issue by the New York high court. The New York high court ruled that in deciding if a mother failed to exercise a minimum degree of care, the focus must be on whether she has met the standard of the reasonable and prudent person in similar circumstances. That degree of care may include such considerations as: risks attendant on leaving, if the batterer has threatened to kill her if she does; risks attendant on staying and suffering continued abuse; risks attendant on seeking assistance through government channels, potentially increasing the danger to herself and her children; risks attendant on criminal prosecution of the abuser; and risks attendant to relocation. Neglect is established not by evidence of abuse, but by evidence that the child was actually or imminently harmed. Full text of the decision HEALTH LAW ERISA plan can deny gastric-bypass surgery The administrators of an Employee Retirement Income Security Act (ERISA) welfare plan that excludes obesity surgery were reasonable to refuse coverage for a gastric-bypass operation for an obese participant who sought it for medical reasons, the 7th U.S. Circuit Court of Appeals held on Oct. 26. Manny v. Central States Welfare Funds, No. 04-1797. Terry Manny, carrying 470 pounds on a 6-foot-1-inch frame, suffered from a variety of serious health conditions, caused or exacerbated by his obesity. He asked the administrators of his ERISA welfare plan to cover the cost of a gastric-bypass operation. They ruled that the plan does not cover such surgery. An Illinois federal court affirmed. The 7th Circuit affirmed, holding that the only question to answer is whether the interpretation of the plan was “completely unreasonable.” The plan excludes cosmetic surgery, defining “cosmetic” as treatment, “the primary effect of which is to improve the physical appearance.” Though Manny did not want “the dangerous and painful procedure of a gastric-bypass . . . operation . . . to look better,” the court said, the plan specifically excludes “any surgery primarily for obesity, including gastric bypass.” Full text of the decision MILITARY LAW Reservist has no right to rest before return to job The Uniformed Services Employment and Reemployment Rights Act of 1994 does not confer on reservists the right to an eight-hour rest period between the time they return home from service until the time they must report back for work, the 3d U.S. Circuit Court of Appeals ruled on Oct. 28, in a matter of first impression. Gordon v. Wawa Inc., No. 03-3089. After a weekend of training duties with the U.S. Army Reserve in Virginia, Willie Gordon returned home to New Jersey, stopping at his employer, Wawa Inc., to pick up his paycheck. A Wawa supervisor told Gordon he would have to work that night’s late shift, which he did. Driving home from his shift, Gordon fell asleep, crashed his car and was killed. Gordon’s mother sued Wawa, claiming that the company had deprived her son of an eight-hour rest period before asking him to return to work. A New Jersey district court dismissed the mother’s case. The 3d Circuit affirmed. Section 4312(e) of the act merely requires an employee returning from uniformed duty to notify his employer of an intent to return to work within a specified time period in order to reclaim his former job. It does not confer a right on the employee to an eight-hour rest period, nor does it impose an affirmative duty on an employer to provide for one. Full text of the decision

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