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CIVIL PRACTICE Complaint against official needn’t specify capacity Where a complaint against a government official fails to state the capacity in which he or she is sued, the “course of proceedings” test decides whether the official had fair notice of potential individual liability to punitive damages, the 1st U.S. Circuit Court of Appeals held on Nov. 24. Powell v. Alexander, No. 02-2218. Kathleen Alexander was a city solicitor when Walter Powell, a police officer, sued the city for race discrimination that led to his termination. Alexander entered into a settlement agreement on the city’s behalf, promising to reinstate Powell under certain conditions. Some years later, Powell sued Alexander and others under 42 U.S.C. 1983. His complaint did not expressly state in what capacity he was suing Alexander. A Massachusetts federal court found that Alexander had choreographed a campaign of obstruction designed to pressure Powell into abandoning his plan to return to the force, and awarded punitive damages against her for $10,000. On appeal, Alexander claimed that she did not have adequate notice that she was being sued in her individual capacity. The 1st Circuit affirmed, on an issue that has split the circuits, rejecting the “bright line” approach to resolving a complaint’s ambiguity on capacity, whereby government officials are presumed to be sued solely in their official capacity absent an express indication in the complaint to the contrary. The court adopted the majority’s “course of proceedings” test, which examines “the substance of the pleadings and the course of proceedings.” Some factors include the nature of the claims, requests for compensatory and punitive damages and the nature of defenses raised, including qualified immunity. Here, Alexander had fair notice of her capacity in the suit. Full text of the decision CIVIL RIGHTS Speech must be on civic issue for retaliation claim The speech of officers of the Texas Department of Public Safety (DPS) is not protected by the First Amendment, the 5th U.S. Circuit Court of Appeals held on Nov. 23. Alexander v. Eeds, No. 03-51369. A group of DPS officers brought a 42 U.S.C. 1983 suit against their supervisors for being denied promotion from lieutenant to narcotics service captain after a competitive examination process. The plaintiffs alleged that their failure to win promotion was the result of retaliation because of constitutionally protected statements they had made, involving objections to the policy of prohibiting narcotics officers from wearing identity-concealing masks and complaints about the promotion process. A Texas federal court granted the defendants’ motion for summary judgment on the retaliation claims. The 5th Circuit affirmed, holding that neither the objections to the policy nor the complaints about the promotion process was a matter of public concern, as no one outside the DPS was contacted about them. Also, the concerns about promotion were about each individual’s situation and not about the policy in general. Full text of the decision CONSTITUTIONAL LAW N.H. abortion law breach of ‘undue burden’ rule New Hampshire’s Parental Notification Prior to Abortion Act is unconstitutional, the 1st U.S. Circuit Court of Appeals held on Nov. 24, applying the “undue burden” standard. Planned Parenthood of Northern New England v. Heed, No. 04-1161. The New Hampshire Legislature passed the Parental Notification Prior to Abortion Act, which requires parental notification before an unemancipated minor can have an abortion, unless a state judge authorizes it after a hearing. Violation would be a misdemeanor and an affected parent could sue for civil penalties. But before the act took effect, a New Hampshire federal court found it unconstitutional and permanently enjoined its enforcement, in a 42 U.S.C. 1983 suit brought by Planned Parenthood and others. The state’s attorney general appealed. The 1st Circuit affirmed, choosing, for the first time, the applicable standard, and thereby joining the majority of circuits in holding that the “no set of circumstances” standard of U.S. v. Salerno, 481 U.S. 739 (1987), was superseded by the “undue burden” standard of Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833 (1992). While mentioning that a state’s decision to require parental notification is not unconstitutional “per se,” the circuit court found the act facially unconstitutional for lack of an explicit or implied health exception, and for failure to protect minors who need life-saving abortions. Full text of the decision CRIMINAL PRACTICE 3-year-old’s assertion not admissible in murder trial The federal confrontation clause prohibits a Department of Human Services (DHS) caseworker from testifying to statements that a 3-year-old child made to her during a police-directed interview, the Oregon Supreme Court ruled on Nov. 26. State v. Mack, No. S51395. William Mack was arrested for the murder of his girlfriend’s 2-year-old son, Lucas. A DHS caseworker conducted three videotaped interviews with Lucas’ 3-year-old brother, Shaydon, with police present. Though many of Shaydon’s answers were inconsistent, he did say that Mack was angry at Lucas and had rubbed him on the floor. The trial court ruled that Shaydon was not competent to testify, and that, though his statements were admissible under a hearsay exception, admission of his statements would violate the confrontation clause. The Oregon Supreme Court affirmed. Since the DHS worker was working as a proxy for the police, Shaydon’s statements to her were testimonial in nature. However, the confrontation clause prohibits testimonial statements from being entered without a defendant’s being allowed to cross-examine them. Full text of the decision EVIDENCE Personal knowledge only basis for lay testimony For a lay witness to testify on a technical matter, the witness must have personal knowledge of that matter, the Pennsylvania Supreme Court ruled on Nov. 22. Gibson v. Workers’ Compensation Appeal Board, No. J-5-2004. Patric Gibson died of lung cancer in October 1994. His wife filed a fatal claim petition with the state workers’ compensation agency against two of his former employers, both steel plants, asserting that Gibson’s condition was caused by continuous exposure to various plant gases, dusts and particles, including asbestos. At a hearing, one of Gibson’s co-workers testified about material he saw at the plant that he surmised was asbestos. A doctor testified that Gibson’s lung showed signs of asbestos exposure, though there was no evidence of actual exposure. The judge granted the petition, the board of appeals reversed and the trial court reversed that decision. The Pennsylvania Supreme Court reversed, thus agreeing with the appeals board that there was no substantial evidence to support a finding of long-term asbestos exposure. The lay witness’s testimony was not sufficient to establish that Gibson had suffered continuous, long-term exposure. Although the Workers’ Compensation Act provides for a relaxation of the rules of evidence, it cannot include an untrained person identifying a workplace substance without personal knowledge or specialized training. Full text of the decision Incident to arrest search can be warrantless one Under the incident to arrest search exception to the Fourth Amendment’s ban on warrantless searches, a warrantless search of a vehicle incident to an arrest may precede the arrest, the 9th U.S. Circuit Court of Appeals held on Nov. 23, in an apparent case of first impression. United States v. Smith, No. 04-50046. California Highway Patrol officers stopped Kory Ray Smith while he was speeding. Smith said that he did not have his drivers’ license or other identification with him, and that his name was “Vernon Paul Smith” of Mesa, Ariz. When a computer check revealed that Vernon Paul Smith’s physical description differed substantially from Smith’s, one officer questioned Smith while the other searched the vehicle. Smith was arrested for false impersonation. During the search of the vehicle, counterfeit currency was discovered, and Smith was charged with knowingly possessing counterfeit currency. Smith moved to suppress the currency, arguing that it did not fall under either the search incident to arrest or automobile exceptions to the Fourth Amendment’s prohibition against warrantless searches. After granting the motion initially, the federal district court denied Smith’s motion to suppress. Affirming, the 9th Circuit held that although the officers had not arrested Smith at the time of the search, it was still a valid search incident to arrest because it was “roughly contemporaneous with the arrest,” and because the officers had probable cause to arrest Smith before the search. The court said, “The arrest followed the search of Smith’s car, but probable cause for the arrest preceded the search. There was no significant delay in the series of events from the moment probable cause arose, to the initial search of Smith’s car, to his arrest. Thus, the search of Smith’s car was a ‘contemporaneous incident of [a lawful] arrest.’ “ Full text of the decision JUVENILE LAW Delinquent to undergo psychosexual evaluation A juvenile delinquent must undergo a psychosexual evaluation prior to his placement in an appropriate facility, the Montana Supreme Court held on Nov. 24. In the Matter of D.M.B. v. Montana 13th Judicial District Youth Court, No. 04-684. The Montana 13th Judicial District Youth Court adjudicated D.M.B. to be a juvenile delinquent after his admission that he had committed the misdemeanor offenses of assault, criminal mischief and obstruction of a police officer. A report by a youth court services officer revealed that D.M.B. had committed a sex offense eight years earlier and had lived in three different residential psychiatric facilities and three different group homes. The officer recommended a psychosexual evaluation prior to the court’s dispositional order. Over D.M.B.’s objection, the youth court ordered an evaluation. The state Supreme Court affirmed. Mont. Code Ann. � 41-5-1512(1)(g) and (i) allows the youth court, as part of its disposition, to “require the medical and psychological evaluation of the youth,” and to “order further care, treatment, evaluation or relief that the court considers beneficial to the youth and the community.” Given that the officer’s report indicated that no licensed facility would accept D.M.B. into its program without the evaluation, the court found the evaluation to be essential to fulfillment of the statute’s purpose. Full text of the decision LABOR LAW Similarly titled jobs do not entail equal work Female county department supervisors who were paid less than male supervisors in other departments were not doing “equal work” for purposes of the Equal Pay Act, the 4th U.S. Circuit Court of Appeals held on Nov. 22. Wheatley v. Wicomico County, No. 03-2406. Sandra Wheatley and Jane Grogan supervised the Emergency Services Department for Wicomico County, Md. The county conducted a study, and, based on its results, instituted a new pay system with the stated purpose of ensuring that county employees were paid equally for equal work. Wheatley and Grogan sued the county, arguing that under the new pay system, they were paid less than male supervisors in other departments in violation of the Equal Pay Act (EPA). A Maryland federal court granted the county’s motion for judgment as a matter of law, holding that Wheatley and Grogan had failed to establish sufficient comparability between their jobs and those of the male supervisors. Affirming, the 4th Circuit held that Wheatley and Grogan had failed to establish that their supervisory work constituted “equal work” to that of the male supervisors in other departments. Noting that some supervisors in other departments were required to have graduate degrees, while Wheatley and Grogan were not, the court said, “In actuality, plaintiffs present a classic example of how one can have the same title and the same general duties as another employee, and still not meet two textual touchstones of the EPA-equal skills and equal responsibility.” Full text of the decision LEGAL PROFESSION Malpractice proof doesn’t require expert testimony Expert testimony is not necessary in a bench trial to establish that a lawyer breached the appropriate standard of care, the Connecticut Supreme Court held on Nov. 23. Dubreuil v. Witt, No. SC 17143. Alphonse and Marilyn Dubreuil sued their attorney, Otto Witt, for legal malpractice alleging that he had failed to appear at court proceedings on three separate occasions, resulting in a $67,277 judgment against them. A trial court held for the Dubreuils. Witt appealed, arguing that the trial court erred by limiting his cross-examination of Alphonse Dubreuil, and by holding that Witt had committed legal malpractice without requiring the Dubreuils to present expert evidence as to whether Witt had breached the standard of care. The state’s intermediate appellate court reversed on the cross-examination issue without considering the expert-witness issue. On remand, a second trial court held for the Dubreuils, once again without hearing expert testimony. The trial court held that Witt’s conduct “was such an obvious and gross want of care and skill that the neglect would be clear even to a layperson.” The state’s intermediate appellate court affirmed, holding that expert testimony was unnecessary. Affirming, the Connecticut Supreme Court held that in a bench trial, expert testimony was not necessary to establish legal malpractice. Adopting the opinion of the intermediate appellate court, the court said that it had not been improper for the trial court to conclude�without the benefit of expert testimony�that Witt had violated the standard of care because a trial judge would be aware of the rules of practice and the standard of care that applies to attorneys practicing in that court. Full text of the decision TORTS No criminal negligence in child’s air bag death A mother’s decision to hold her child in her lap in the front seat of a car was not criminally negligent, even though the child was killed when the passenger-side air bag deployed, the Tennessee Supreme Court ruled on Nov. 23. State v. Jones, No. E2002-00893-SC-R11-CD. In November 1998, Latrece Jones and her 2-year-old son were two of nine passengers in a car rented by the driver as part of the driver’s day-care business. The car was hit by another vehicle and the air bag deployed, breaking the neck of the boy and killing him. Jones was charged with criminally negligent homicide. At her trial, the state introduced evidence of a statewide ad campaign to promote the use of child restraints in cars, as well as evidence that Jones received pamphlets about restraints when she gave birth. Also, warnings against riding with children in one’s lap were posted in the rental car. Jones was convicted, and an intermediate appellate court affirmed. The Tennessee Supreme Court reversed, finding Jones’ conduct to be negligent only. There was no evidence that Jones read or saw any of the campaign material. Also, in 1998, passenger-side air bags were just starting to be standard, and the dangers of small children and air-bag deployment were just starting to be promoted. The very fact that there was a need for a large-scale public information campaign aimed at educating parents about child car safety is an indication of the number of people who were not using child safety restraints at the time of the accident. Full text of the decision

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