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ADMINISTRATIVE LAW Lower alcohol limit for young drivers permissible North Dakota law allows for the suspension of the driver’s license of a person below the age of 21 when the person is caught driving with a blood alcohol level of at least 0.02%, the North Dakota Supreme Court determined on April 6. Harter v. North Dakota Dep’t of Transportation, No. 20040281. A police officer arrested 20-year-old Clayton Harter after stopping him for speeding and noticing signs of intoxication. Testing indicated that his blood alcohol level was 0.05%. A North Dakota Department of Transportation officer suspended Harter’s driver’s license for 91 days. The trial court affirmed. The North Dakota Supreme Court affirmed. N.D. Cent. Code � 39-20-04.1(1)(a) provides that a person’s driver’s license shall be suspended for driving with a blood alcohol level of at least 0.08%, but that the driver’s license of a person younger than 21 shall be suspended for driving with a blood alcohol level of at least 0.02%. Section 39-20-04.1(1)(a) continues that such a suspension shall be for 91 days, but does not specifically mention people younger than 21. Looking to legislative history, the court determined that the legislature meant for part (a) to apply to those below 21 because at the time the provision covering people below 21 was added, federal highway funds would have been lost if anything other than a zero tolerance policy was adopted. Full text of the decision ATTORNEY FEES ‘Absurdity’ case permits fees in excess of $1.50 The Prison Litigation Reform Act’s (PLRA’s) attorney fee cap doesn’t apply to a case where the fee award would be just $1.50, the 10th U.S. Circuit Court of Appeals ruled on April 4. Robbins v. Chronister, No. 02-3115. Ralph Robbins prevailed in a 42 U.S.C. 1983 civil rights suit on the ground that police officer Larry Chronister violated his Fourth Amendment rights when he smashed the driver’s window of Robbins’ car with his baton while Robbins was in it. But Robbins subsequently pleaded guilty and was incarcerated for attempted aggravated assault on a law enforcement officer due to his behavior while subsequently trying to escape from the officer. A Kansas federal court awarded Robbins nominal damages of $1 in his civil rights suit because the officer did not injure him. Robbins moved under 42 U.S.C. 1988(b), which provides for reasonable attorney fees in Section 1983 cases. The officer opposed the motion under Section 1997e(d) of the PLRA, which caps fees at 150% of the damage award if the plaintiff is a prisoner when he brings his action. Thus Robbins’ attorney fees would have been $1.50, because he was a prisoner when he filed suit. But the district court awarded Robbins $9,680 in fees and $915 in costs. The 10th Circuit affirmed. Upon reviewing the legislative history of the PLRA and other analysis, the court applied the U.S. Supreme Court’s “absurdity exception,” because Robbins’ constitutional claim arose before he was incarcerated. Failing to distinguish between preincarceration cases and post-incarceration cases would lead to absurd results, the court said. Full text of the decision CIVIL PRACTICE Government entity can’t assert Section 1983 claim A district court erred in awarding attorney fees to the Virginia Office for Protection and Advocacy (VOPA) in a civil action because, as a government agency, VOPA was not entitled to assert a claim under 42 U.S.C. 1983, the 4th U.S. Circuit Court of Appeals held on April 6. Virginia Office for Protection and Advocacy v. Reinhard, No. 04-1795. VOPA sued James Reinhard, commissioner of the Virginia Department of Mental Health, Mental Retardation and Substance Abuse Services, under Section 1983 to obtain the names and contact information of patients the department had released from mental health institutions. A district court entered a preliminary injunction ordering the department to release the information and awarded VOPA attorney fees under 42 U.S.C. 1988 as a prevailing party under 42 U.S.C. 1983. Reinhard appealed, arguing that VOPA was not entitled to the attorney fees because, as a government agency, it could not assert a claim under Section 1983. Reversing, the 4th Circuit held that as a government agency, VOPA could not assert a Section 1983 claim. Noting that “persons” were entitled to bring suits under Section 1983, the court said, “VOPA has not presented us with . . . any affirmative evidence of statutory intent to allow suits by sovereigns under � 1983 that would overcome the general presumption that ‘person’ in a statute does not include the sovereign.” Full text of the decision CIVIL RIGHTS Teachers, cops immune in student strip search A district court erred in refusing to grant summary judgment to teachers and a police officer involved in the strip search of students because, while their actions were unconstitutional, the law regarding the reasonableness of strip searches under such circumstances was unsettled at the time, the 6th U.S. Circuit Court of Appeals held on April 4. Beard v. Whitmore Lake School Dist., nos. 03-1904, 03-1942. After a student reported that her prom money had been stolen during gym class, teachers strip searched students in search of the money, consulting with a local police officer. The students and their parents sued the school district, the teachers and the police officer for civil rights violations under 42 U.S.C. 1983. The teachers and the police officer moved for summary judgment, and a Michigan district court denied the motion. The teachers and police officer appealed. Reversing, the 6th Circuit held that the teachers and police officer were entitled to qualified immunity because, although their actions were unconstitutional, the law on the reasonableness of strip searches in such circumstances was unsettled. Although noting that the 7th Circuit had held similar strip searches unreasonable, the 6th Circuit said, “These cases were not sufficient to establish clearly the unlawfulness of the defendants’ actions in this case. In the ‘rare instance’ where it is proper to seek guidance from outside this circuit, the law will only be clearly established where the cases from outside this circuit ‘both point unmistakably to the unconstitutionality of the conduct complained of and [are] so clearly foreshadowed by applicable direct authority’ ” as to give notice, the court said, adding that the out-of-circuit cases did not meet this test. Full text of the decision CRIMINAL PRACTICE Inmate’s writings posed no threat to Bush’s life A district court erred in convicting a prison inmate for willfully and knowingly threatening the life of the president under 18 U.S.C. 871 because his writings about President George W. Bush did not constitute a true threat, the 9th U.S. Circuit Court of Appeals held on April 8. United States v. Lincoln, No. 04-30040. Prison inmate Jonathan Lincoln attempted to mail a letter making references to the death of President George W. Bush. After a one-day bench trial, a district court convicted Lincoln under 18 U.S.C. 871, holding that the letter-when considered along with threatening writings he made in a prison anger-management class workbook-constituted a “true threat.” Although his anger-management workbook writings were suppressed later under the patient-psychotherapist privilege, Lincoln’s conviction stood. Reversing, the 9th Circuit held that the contextual background did not turn Lincoln’s letter into a true threat to Bush. The court said, “Because � 871 criminalizes a form of pure speech, it ‘must be interpreted with the commands of the First Amendment clearly in mind.’ So interpreted, the letter in this case was Lincoln’s crude and offensive method of stating political opposition to the President, and such political hyperbole does not constitute a ‘threat’ under � 871. Although the language used was disturbing, Lincoln was exercising his constitutional right to endorse the violent actions of Bin Laden and Al Qaeda, which is protected speech.” Full text of the decision ENVIRONMENTAL LAW Minors have no standing under federal lead act A lessee’s minor children have no standing to sue a lessor for failure to disclose information regarding the hazards of lead paint pursuant to the Residential Lead-Based Paint Hazard Reduction Act, the 1st U.S. Circuit Court of Appeals held on April 7. Mason v. Morrisette, No. 04-1908. After a minor girl was found to have high levels of lead in her blood, the New Hampshire Division of Health Services inspected the apartment she lived in for lead paint and found significant lead contamination. The then-owner was ordered by the state to abate the lead hazards, but did not comply. The blood of the girl and her minor sibling were then tested and contained dangerous amounts of lead. The state gave them emergency housing with their mother. The children, through their guardian and attorney, sued, alleging that the two successive building owners had violated the act. A New Hampshire federal court requested briefing on whether the minor children of a lessee have standing to sue the lessor under the act, and dismissed the suit on the ground that they do not. The 1st Circuit affirmed, holding that the plain language of the statute limits the private cause of action to a “purchaser or lessee,” and that the children cannot be considered either. The court rejected the argument that because the language of the act as well as its legislative history and implementing regulations indicate that it was enacted to protect children residing in residential property from lead poisoning, Congress intended minor children of lessees to have standing under the civil liability provision. Full text of the decision FAMILY LAW Grandparent visitation law is unconstitutional The state’s grandparent visitation statute is unconstitutional, the Washington Supreme Court held on April 7. In re the Parentage of C.A.M.A., No. 75262-1. The paternal grandparents of a child petitioned for visitation under Wash. Rev. Code 26.09.240, which allows for visitation by persons other than a parent. The statute provides that “[v]isitation with a grandparent shall be presumed to be in the child’s best interests when a significant relationship has been shown to exist. This presumption may be rebutted by a preponderance of evidence showing that visitation would endanger the child’s physical, mental, or emotional health.” The trial court granted the father’s motion to dismiss the petition. The court of appeals reversed. The Washington Supreme Court reversed, finding that the statute violated the constitutionally required presumption that a fit parent acts in the child’s best interests. While such a presumption may be overcome by a showing of harm to a child, the statute unconstitutionally overrode a parent’s fundamental right. Full text of the decision JUVENILE LAW Ineffective counsel claim applies to criminal cases An ineffective assistance of counsel claim is not available in juvenile adjudication proceedings in which counsel is appointed pursuant to statute and in which appointment is not required under the federal Constitution, the Nebraska Supreme Court held on April 8. In re the Interest of Heather R., No. S-04-767. Three minor children were put into emergency protective custody, pending placement in a foster home, after the oldest child reported that her stepfather had hit her with a belt. At a hearing on the state’s petition alleging that the children were juveniles within the meaning of Neb. Rev. Stat. � 43-247(3)(a) because they lacked proper parental care, the juvenile court found for the state. The children were represented by a guardian ad litem, while the children’s mother and stepfather were jointly represented by court-appointed counsel. The juvenile court ordered continuation of out-of-home placement and scheduled a disposition hearing. The mother and the stepfather appealed, contending that they had received ineffective assistance of counsel because a pediatrician was not retained to give a second medical opinion. The Nebraska Supreme Court affirmed. The right to an ineffective assistance of counsel claim stems from the Sixth Amendment right to counsel. The court concluded that such a claim is not available in this case because the right to counsel, derived from statute and the Sixth Amendment, applies only to criminal cases. Appointment of counsel in a civil case where such appointment is not required by the federal Constitution need not be accompanied by a corresponding entitlement to effective counsel. Full text of the decision MEDIA LAW Venue change no reason for 911 tape nonrelease The financial cost of a possible change of venue resulting from the publicity caused by the release of a 911 tape of a killing was not a sufficient reason for denying a newspaper’s state Freedom of Information Act (FOIA) request for the tape, the South Carolina Supreme Court held on April 4. Evening Post Publishing Co. v. City of North Charleston, No. 25962. Four white men were beating a black man who escaped to a store. The store owner called 911. When police arrived, they saw the victim in the store and shot and killed him. The four white men were charged with lynching. The Post and Courier newspaper filed a FOIA request for the 911 tape, but the city of North Charleston, S.C., denied the request, citing S.C. Code Ann. � 30-4-40(a)(3)(B), which exempts from disclosure records of law enforcement agencies compiled during investigating of a crime if disclosure of the information would harm a prospective law enforcement action. The tapes’ release would result in additional publicity necessitating a change of venue, which the city could not afford. The newspaper’s parent company sued to compel release of the tape. A trial court held for the city, and an intermediate appellate court affirmed. Reversing, the South Carolina Supreme Court held that the cost of a change of venue was not sufficient reason to deny the FOIA request for the 911 tape. The court said, “The financial cost of a venue change, however, is not the type of harm that section 30-4-40(a)(3)(B) is intended to prevent. Rather, it is intended to prevent harms such as those caused by release of a crime suspect’s name before arrest, the location of an upcoming sting operation, and other sensitive law-enforcement information.” Full text of the decision

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