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ADMINISTRATIVE LAW Criminal and civil processes are separate The outcome of a criminal proceeding should have no effect on a civil proceeding arising out of the same circumstances, the Iowa Supreme Court ruled on March 4. Lee v. Iowa Department of Transportation, Motor Vehicle Division, No. 11/04-0565. After being stopped by police for speeding and failing three field sobriety tests and two breath tests, Jason Lee was arrested for drunken driving. The state of Iowa prosecuted him for drunken driving, while the Iowa Department of Transportation brought civil administrative proceedings to revoke his driver’s license. Lee pleaded guilty in the criminal matter and received a deferred judgment pending a substance-abuse evaluation. In the civil matter, the transportation department decided to revoke Lee’s license for 180 days for failing the breath test. The Department of Inspections and Appeals and a reviewing officer both upheld the decision. The trial court stayed the revocation, finding that the department of transportation could only revoke Lee’s license for 90 days because of the deferred judgment in the criminal matter. The Iowa Supreme Court reversed. Iowa Code � 321J.4(3) provides that if the court defers judgment for a drunken driving conviction, a defendant’s driver’s license may be revoked for no more than 90 days. While a driver’s license in a criminal proceeding where there is a deferred judgment may not be revoked for more than 90 days, the court clarified that the license revocation here stemmed from the civil administrative proceeding over the breath-test failure. Full text of the decision CIVIL PRACTICE Attorney fees for Title IX litigant despite $1 award A female duke University football player who prevailed in a Title IX action, but whose damages were eventually reduced to $1, was still entitled to more than $349,000 in attorney fees despite her nominal recovery, the 4th U.S. Circuit Court of Appeals held on March 1. Mercer v. Duke University, No. 04-1191. Heather Mercer became the first woman to become a member of a men’s National Collegiate Athletic Association Division I-A football team when Duke University’s coach named her to its team in 1995. However, after extensive publicity and media coverage, the coach cut her from the squad. Mercer sued Duke under Title IX of the Educational Amendments of 1972, alleging gender discrimination. Reversing a district court, the 4th Circuit held that, once Duke let Mercer on the team, the university was not entitled to the contact-sport exemption to Title IX. On remand, a North Carolina jury awarded Mercer $1 in compensatory and $2 million in punitive damages, along with attorney fees, reduced to $349,000. On appeal, the 4th Circuit held that punitive damages were not available in Title IX actions. Duke appealed again, this time challenging the attorney fee award because Mercer’s recovery had been reduced to nominal damages. Affirming, the 4th Circuit held that, despite the nominal recovery, Mercer was entitled to attorney fees because her case served a significant public purpose. The court said, “Mercer’s claim was a novel one that established a new rule of law with regard to liability under Title IX. Because Mercer’s litigation . . . served an important public purpose, we conclude that the district court did not abuse its discretion by concluding that Mercer’s victory entitled her to an award of attorney fees even though she ultimately recovered only nominal damages.” Full text of the decision CONSTITUTIONAL LAW Closing argument denial is a due process breach A juvenile criminal defendant had a fundamental right to make a closing argument under the U.S. Constitution, the Arkansas Supreme Court held on March 3 in a case of first impression. S.S. v. Arkansas, No. 04-933. S.S., a juvenile, was charged with possession of a controlled substance. After both sides had rested at a bench trial, the judge immediately issued a guilty verdict. The defense counsel objected, arguing that S.S. had a constitutional right to have defense counsel give a closing argument under both the Sixth Amendment to the U.S. Constitution and Article II of the Arkansas Constitution. The trial court denied the objection. Reversing, the Arkansas high court held that both adult and juvenile criminal defendants had a constitutional right to make closing arguments. The court distinguished the case from its holdings that criminal defendants had no right to make opening statements nor a right to oral arguments at suppression hearings. Quoting from the U.S. Supreme Court’s opinion in Herring v. New York, the court said, “It can hardly be questioned that closing argument serves to sharpen and clarify the issues for resolution by the trier of fact in a criminal case. For it is only after all the evidence is in that counsel for the parties are in a position to present their respective versions of the case as a whole.” Full text of the decision CRIMINAL PRACTICE Parole officers ought to ensure decent conditions A paroled inmate has a claim for a civil rights violation over the parole authority’s decision to discharge him to housing that was allegedly unsuitable and to refuse to place him elsewhere, the 2d U.S. Circuit Court of Appeals ruled on March 1. Jacobs v. Ramirez, No. 04-3820. In anticipation of his release from prison on parole, Alonzo Jacobs requested that he be discharged to his mother’s home. The parole officers agreed, but Jacobs then balked, saying his mother’s house was unsafe and unsanitary. He requested to be placed in a homeless shelter, but his request was denied. Jacobs sued for a civil rights violation, saying that the state was compelling him to live in uninhabitable conditions, and refusing to place him in more suitable conditions. A New York district court dismissed Jacobs’ pro se petition for failure to state a claim. The 2d Circuit reversed, ruling that once it agreed to parole Jacobs to his mother’s home as he requested, the state assumed the “very limited” duty of ensuring that it was not requiring him to remain in a place that turned out to be uninhabitable. Full text of the decision FAMILY LAW Grandparent visit rights won’t survive adoption A grandparent visitation order does not survive the child’s adoption by the child’s other grandparents, the Wyoming Supreme Court held on Feb. 28 in an issue of first impression. Hede v. Gilstrap, No. 04-22. In 1999, a court ordered that a minor girl’s paternal grandparents could have visitation. But in 2002, the child was adopted by her maternal grandparents, who refused to allow visitation by the paternal grandparents. The paternal grandparents filed suit in a Wyoming district court, claiming that once they had been granted visitation rights under Wyoming’s grandparent visitation law, the rights could only be revoked for good cause. The court granted summary judgment to the maternal grandparents. The Wyoming Supreme Court affirmed. Wyoming statutes do not distinguish between relative adoptions and nonrelative adoptions, and the court declined to assume that the Legislature had intended such a distinction. The court said that the statutes do not expressly allow the visitation order to survive the adoption, and there is no indication that the Legislature intended it to survive. Full text of the decision LEGAL PROFESSION Insurer has no duty to pay insured’s law firm Despite having directed the litigation, an insurance company had no duty to pay the fees of the law firm hired by the insurance carrier’s bankrupt insured, the District of Columbia Court of Appeals held on March 3. Jordan Keys & Jessamy LLP v. St. Paul Fire and Marine Ins. Co., No. 03-CV-1380. Greater Southeast Community Hospital was a defendant in a medical malpractice suit, and retained the law firm of Jordan Keys & Jessamy of Washington to represent it. The hospital was self-insured for the first $1 million of liability, but had an excess coverage policy with St. Paul Fire and Marine Insurance Co. Although Jordan Keys had been retained by the hospital and had no representation agreement with St. Paul, St. Paul directed the litigation and demanded regular status reports from Jordan Keys. After the hospital declared bankruptcy, the malpractice plaintiffs agreed not to seek recovery for the first $1 million from the hospital, and to proceed only against St. Paul for the excess coverage. St. Paul decided to proceed with a different counsel, and demanded Jordan Keys’ case files. Jordan Keys sued St. Paul, demanding payment of its legal fees, arguing that it had an implied-in-fact contract with St. Paul. A trial court granted St. Paul’s motion to dismiss. The D.C. Court of Appeals affirmed, holding that there was no implied-in-fact contract nor any quantum meruit unjust enrichment because the parties had agreed that the hospital would pay the fees. The court said, “Jordan Keys had expected to be fully compensated by the Hospital, and its client’s bankruptcy shattered these expectations. Nevertheless, in the absence of some unanticipated and unjust enrichment of St. Paul, the loss resulting from the Hospital’s inability to meet its obligations must be borne by the party that contracted with the Hospital, namely, Jordan Keys.” Full text of the decision TORTS Illegal alien may bring lost-earning-ability claim An illegal alien is not precluded from bringing a claim for lost earning capacity, and in some cases, that capacity may be measured against U.S. standards, the New Hampshire Supreme Court ruled on March 4 in a case of first impression. Rosa v. Partners in Progress Inc., No. 2004-232. Wudson Rosa, an illegal alien from Brazil, was hired by a painting subcontractor on a job for Wal-Mart. Rosa was injured at the work site. He sued the subcontractor, the contractor and the company that supplied the equipment that injured him. Rosa sought lost earning capacity measured by U.S. wages. Upon the state’s motion to prohibit Rosa from seeking such compensation, the trial court transferred to New Hampshire Supreme Court, raising two questions related to Rosa’s status and his ability to request certain relief. The New Hampshire Supreme Court ruled that Rosa is allowed to make a claim of lost earning capacity, even though he is not legally entitled to work in the United States. The lost earning capacity should usually be measured by the standards of the alien’s home country, but U.S. standards can be used in cases like this one if the alien’s employer knew of the alien’s illegal status at the time of hiring. Consequently, evidence of Rosa’s illegal alien status may be admitted on the specific issue of his lost earning capacity at U.S. wage levels. Full text of the decision WORKERS’ COMPENSATION Only money obtained via false assertion is forfeited Under Colorado law, a worker only forfeits compensation that was obtained as a result of false statements, the Colorado Supreme Court found on Feb. 28. Wolford v. Pinnacol Assurance, No. 03SC472. While Charlene Wolford, a counselor who had been sexually assaulted on the job by a patient, was receiving temporary total disability (TTD) benefits as a result of the attack, she began working as a secretary for a law firm. Wolford then sought and received an order for permanent partial disability (PPD) benefits in the amount of $81,251.63 for the same injury. Around that time, she was charged with, and pleaded guilty to, one count of willfully making false statements to obtain workers’ compensation benefits under Colo. Rev. Stat. � 8-43-402. The criminal court ordered restitution of the TTD benefits paid after Wolford started working. When the workers’ compensation insurer disputed the PPD award because of Wolford’s criminal conviction, Wolford filed an action for enforcement of the order. The trial court determined that she had forfeited her PPD benefits when she was convicted. The court of appeals affirmed. The Colorado Supreme Court reversed. Section 8-43-402 states that a person convicted of willfully making a false statement to obtain workers’ compensation benefits “shall forfeit all right to compensation” under the act. By requiring a nexus between the false statements and the compensation forfeited, the court explained that the “remedial and beneficent” purpose of the workers’ compensation system would be served while at the same the deterrent effect of Section 8-43-402 would be preserved. Full text of the decision

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