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ATTORNEY FEES Landowners can get fees in eminent domain suits Attorney fees may be awarded to landowners in eminent domain actions, the Nevada Supreme Court found on March 10 in an issue of first impression. Valley Electric Ass’n v. Overfield, No. 41858. Valley Electric Association, a nonprofit, filed a condemnation action for an easement over land owned by the Overfield family. After the Overfields rejected Valley Electric’s settlement offer of $6,000, the case went to trial, and a jury awarded them $15,045 and attorney fees. The Nevada Supreme Court affirmed. Although Nev. Rev. Stat. � 37.140 only explicitly authorizes attorney fees in condemnation proceedings involving construction of railroad facilities, Nev. Rev. Stat. � 18.010(2)(a) states that “[i]n addition to the cases where an allowance is authorized by specific statute, the court may make an allowance of attorney’s fees to a prevailing party when he has not recovered more than $20,000.” Full text of the decision CIVIL PRACTICE Gun dealers can’t fight county funding limits Gun dealers who sold their wares at gun shows at a private nonprofit facility-until a Maryland county government threatened to end its financial contributions to the facility if guns were sold there-were not the direct subjects of the government action, and had no standing to sue the county for alleged violations of state law and the U.S. Constitution, the 4th U.S. Circuit Court of Appeals held on March 11. Frank Krasner Enterprises Ltd. v. Montgomery County, No. 04-1030. Frank Krasner Enterprises Ltd. and other gun dealers had sold firearms at gun shows at the Montgomery County Agricultural Center in Gaithersburg, Md., a private, nonprofit facility, for a number of years. In 2001, Montgomery County amended its code to prohibit the use of county funds to support any organization allowing the sale of guns. The center, threatened with loss of county funding, informed the gun dealers that they could no longer sell their guns at the facility. The gun dealers sued the county, alleging violations of state law and of the First and 14th amendments. After a district court held for the gun dealers on the state law claims, the 4th Circuit vacated and remanded for a determination of the standing issue. The district court held for the gun owners. Reversing, the 4th Circuit held that the gun owners did not have standing because they were not direct subjects of the government funding decision. The court said, “Appellees have not cited, and we are unaware of, a single case granting standing to a plaintiff challenging a government’s decision not to subsidize a third party, not before the court, with whom the plaintiff does business.” Full text of the decision CRIMINAL PRACTICE Trial court can enforce legal financial obligation A trial court had jurisdiction to enforce a legal financial obligation stemming from a 1990 conviction, the Washington Supreme Court held on March 10. State v. Adams, No. 75561-2. In 1988, Gordon Adams was required to pay court costs and restitution in a criminal case. In 1990, Adams was ordered to pay victim assessment in each of two criminal offenses. When Adams was released from prison in Washington in 1993, he was immediately transferred to the Oregon Department of Corrections because of other pending criminal matters. In 1994, Adams was paroled in Oregon, but he paid nothing in the Washington cases. In 1995, following failure to appear for a hearing, the Washington Department of Corrections issued a bench warrant for his arrest. After his incarceration in 2002 on new charges in Washington, a hearing was held regarding his financial obligations in his previous cases. The trial court dismissed the causes, citing lack of jurisdiction. The court of appeals affirmed. The Washington Supreme Court reversed. The general legal financial obligations statute, former Wash. Rev. Code � 9.94A.145, which covers costs, fines and other assessments and was in place at the time of Adams’ 1990 conviction, provides that such obligations “may be enforced at any time during the ten-year period following the offender’s release from total confinement or within ten years of entry of the judgment and sentence, whichever period ends later.” Since Adams was released from prison on his 1990 conviction in 1993, the court found that the trial court had jurisdiction over his legal financial obligation in that case until 2003. Full text of the decision ‘Blakely’ isn’t retroactive to pre-’Blakely’ sentence The U.S. Supreme Court’s sentencing decision, Blakely v. Washington, 124 S. Ct. 2531 (2004), is not retroactive to convictions that were final before Blakely, the 10th U.S. Circuit Court of Appeals held on March 8. USA v. Price, No. 04-7058. In 2001, an Oklahoma district court denied Joshua Price Jr., convicted and sentenced for drug trafficking, relief under 28 U.S.C. 2255. He sought a certificate of appealability, which a 10th Circuit panel denied, in part because the U.S. Supreme Court had not extended Blakely’s holding to the Federal Sentencing Guidelines and because Blakely would not apply retroactively to initial � 2255 motions for collateral relief. Later, after the high court did extend Blakely to the sentencing guidelines, Price sought a rehearing, claiming that the court had to vacate the sentences because the jury never found the type and quantity of drugs for which the court sentenced him, and never found that Price killed a government witness, a factual finding the district court made in applying the sentencing guidelines to enhance Price’s sentence. The 10th Circuit denied Price’s petition for rehearing. In Blakely, the high court invalidated the state of Washington’s sentencing scheme, holding that it violated the Sixth Amendment by requiring a court to impose a sentence not solely based on facts reflected in the jury verdict or admitted by the defendant. The 10th Circuit here deemed the Blakely rule a procedural rather than a substantive one, and concluded that Blakely announced a “new rule.” The court held that Blakely does not apply retroactively to convictions that were already final at the time the high court decided Blakely. Full text of the decision FAMILY LAW Judge can’t have private custody talk with child A judge may not privately interview a child regarding her custody preference, if a parent objects to the interview, the Wyoming Supreme Court held on March 10. KES v. CAT, No. 04-39. In a divorce, the mother was awarded custody of her daughter. The couple later agreed to give the father temporary custody. When the father was called for active military duty, the child was returned to the mother, subject to monitoring due to psychological issues. When the father returned, the state court held a custody hearing and granted the father’s request, over the mother’s objection, that the court privately interview the 11-year-old child regarding her custody preference. She told the judge she preferred custody with the father. The court granted him custody. The Wyoming Supreme Court reversed and remanded. Wyoming has long allowed judges to interview children privately, subject to certain requirements. According to the court, however, due process issues arise when a parent objects to the private interview because “parents have no way of knowing the contents of the interview or of challenging the manner in which the interview was conducted or the reliability of the information revealed therein.” Thus, if a parent objects “to a private interview between the child and judge . . . no such interview should take place.” Rather, the parties or court “should fashion a suitable alternate procedure for obtaining evidence of the child’s custody preference.” Here, it was an abuse of discretion to conduct the interview over the mother’s objection without any safeguarding of her due process rights. Full text of the decision GOVERNMENT Ore.’s retirement system overhaul mostly upheld In a wide-ranging challenge to an overhaul of the state Public Employees Retirement System (PERS) the Oregon Supreme Court on March 8 upheld most of the provisions, but found the provision temporarily suspending annual cost-of-living adjustments to certain members is a breach of a PERS contract with employees. Strunk v. Public Employees Retirement Board, No. S50593. Legislation passed in 2003 made significant changes to the PERS, which provides public employees with various forms of retirement accounts. Part of the overhaul temporarily suspended annual cost-of-living adjustments to Tier One employees-those who joined the plan before 1996 and had certain earnings guarantees. Tier Two members-those who joined after Jan. 1, 1996-had no such guarantees. Several groups of public employees challenged the revised scheme in an original proceeding. The Oregon Supreme Court upheld most of the program, though it struck down the temporary suspension of cost-of-living adjustments to Tier One employees. The adjustments are part of the “fixed” service retirement allowance, and suspending that allowance violates a statutory promise not to eliminate fixed benefits. The statutory promise amounts to a contract, so the suspension amounts to a breach of contract. Full text of the decision IMMIGRATION LAW Gay Lebanese man had basis to fear persecution A gay Lebanese man with AIDS had a well-founded fear of persecution if forced to return to Lebanon, the 9th U.S. Circuit Court of Appeals held on March 7 in a petition for review of application for asylum and withholding of removal. Karouni v. Gonzales, No. 02-72651. Nasser Karouni, a gay man suffering from AIDS, applied for asylum, claiming that if forced to return to Lebanon, he would be persecuted for his homosexuality. He argued that, due to his AIDS condition and his family’s prominent status in Lebanon, it would be difficult for him to avoid the attention of Lebanese authorities or the Hizballah organization, which controls portions of Lebanon. Karouni argued that they had both persecuted him in the past because of his homosexuality. An immigration judge denied his applications, and the Board of Immigration Appeals affirmed without decision. Karouni petitioned the 9th Circuit for review. Granting the petition for review, the 9th Circuit reversed the immigration judge’s findings that Karouni had not demonstrated a well-founded fear of persecution in Lebanon due to his homosexuality. The court said, “the record demonstrates that Hizballah militants and certain factions of the Lebanese and local governments are a credible threat to homosexuals like Karouni.” Full text of the decision No derivative citizenship for adopted child A former immigration provision allowing for derivative citizenship to foreign-born children of alien parents who become naturalized does not apply to an adopted child who does not live with his or her parents at the time of naturalization, the 2d U.S. Circuit Court of Appeals ruled on March 9. Smart v. Ashcroft, No. 02-4505. Andre Smart was born in Jamaica and was adopted when he was 6. Smart’s adoptive mother became a U.S. citizen through naturalization the year before the adoption, and Smart’s adoptive father was naturalized six months after the adoption. Though Smart was not living with either parent when they were naturalized, he was allowed into the United States as a lawful permanent resident to live with his parents. Smart pleaded guilty to attempted robbery in 2001 and was notified he was to be removed because of his felony conviction. Smart’s defense that he had derivative citizenship from his parents was rejected by the immigration judge. The Board of Immigration Appeals affirmed. The 2d Circuit affirmed, ruling that the statute does not violate Smart’s equal protection rights. Though foreign-born biological children of naturalized parents can claim derivative citizenship even if they were not living in the United States at the time of naturalization, the adopted children cannot claim derivative citizenship unless they were living with their parents at the time of their naturalization. The prohibition is rationally related to a government interest in making sure immigrating individuals have a meaningful connection to the United States before they are granted citizenship. Full text of the decision LABOR LAW No overtime pay for compound pharmacists Compound pharmacists are “professionals” exempt from federal overtime pay requirements, the 1st U.S. Circuit Court of Appeals held on March 9 in an issue of first impression. Jesus-Rentas v. Baxter Pharmacy Services Corp., No. 03-2697. Five licensed compound pharmacists who facilitate Baxter’s manufacturing and distribution of intravenous antibiotics and chemotherapy drugs sought overtime pay pursuant to the Fair Labor Standards Act, which requires overtime pay for employees who work more than 40 hours per week, unless they are professionals. A Puerto Rico federal court held that they are professionals and thus exempt from the act’s overtime-pay requirement, and granted Baxter summary judgment. The 1st Circuit affirmed, disagreeing with the pharmacists’ contention that their work doesn’t require the consistent exercise of discretion and judgment necessary to deem them “professionals.” The court said that one of their primary tasks is to evaluate the safety and propriety of each prescription for the particular patient. The fact that disagreement between pharmacist and physician about a prescription’s appropriateness may result in consultation with colleagues and supervisors does not preclude a finding that they exercise discretion and judgment. The court also found it relevant that pharmacists supervise others while they are not closely supervised. Full text of the decision MEDIA LAW Paper can see records on reserve deputy sheriffs A newspaper was entitled to inspect records of the names and addresses of reserve deputy sheriffs because they were public records made or received by a public official, the Massachusetts Supreme Judicial Court held on March 8. Cape Cod Times v. Sheriff of Barnstable County, No. SJC-09288. The Cape Cod Times sought records containing the names and addresses of so-called “reserve deputy sheriffs” in Barnstable County, Mass.-private individuals who, although volunteers, had “all the powers, duties, authority, responsibility and honors of a Deputy Sheriff when called upon by the High Sheriff or the Special Sheriff.” The newspaper sued after the Barnstable County sheriff denied it access to the records. The sheriff argued that the records were not public, but belonged to a private sheriff’s association, and that releasing the records would violate the volunteers’ right to privacy under state law. A state superior court held for the sheriff, and the newspaper appealed. Vacating the lower court decision, the Massachusetts Supreme Judicial Court ordered the records released, holding that they were public records because the sheriff collected them in his official capacity. The court also rejected the privacy argument. The court said, “Any constitutional protection of individual privacy does not insulate the disclosure of the names and addresses of those who have applied to, and been appointed by, a public official, regardless of the scope of their subsequent responsibilities.” Full text of the decision No malice in newspaper criticism of DA’s office Prosecutors in a Texas district attorney’s office did not prove that a critical newspaper article about the office was published with actual malice, the Texas Supreme Court ruled on March 11. The Hearst Corp. v. Skeen, No. 04-0414. The Houston Chronicle published an article in June 2000 accusing the Smith County DA’s office of having a “win at all costs” attitude, driven by aggressive prosecutors who have been accused of suppressing evidence, encouraging perjury and practicing selective prosecution. The DA and two assistants sued the newspaper, claiming that the article was false. The DA also said the 10 cases discussed in the article represented only 0.04% of the office’s total number of indictments, and so the article’s assertions were made with knowledge that they were false. The trial court denied the DA’s motion for summary judgment, and the appeals court affirmed. The Texas Supreme Court affirmed. The fact that the paper had not reviewed every indictment during the DA’s service or discussed a larger number of problem cases is not evidence that the paper knew the article contained false statements. And because there was evidence that the reporter had interviewed several sources, including the prosecutors, and relied on multiple court records, the paper could not be accused of purposely avoiding conclusions contrary to the assertions made in the article.

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