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CIVIL PRACTICE Party’s claim can rely on adversary’s jury request A trial court erred in refusing to grant a jury trial to a litigant because, although the litigant had not demanded a jury trial, it was permitted to rely on its adverse party’s jury trial request in its counterclaim, the 9th U.S. Circuit Court of Appeals held on May 6. California Scents v. Surco Products Inc., No. 03-56116. California Scents, an air freshener manufacturer, sued Surco Products Inc., Pestco Inc. and others, alleging trade dress infringement in their marketing of “scratch and sniff” scented labels. When California Scents sued, it did not demand a jury trial, but when Pestco counterclaimed, it did demand a jury trial. A trial court denied California Scents’ jury trial request. The trial court conducted a bench trial, and held for Pestco. Reversing, the 9th Circuit ruled that California Scents was permitted to rely on Pestco’s jury trial demand in its counterclaim. The court said, “The substantial factual overlap underpinning the parties’ respective claims compels our conclusion that Pestco’s jury demand on its counterclaims was directed . . . to the same ‘issues’ as California Scent’s complaint. On this basis, we hold that California Scents’s reliance on Pestco’s jury demand to preserve its own right to a jury trial on its complaint was reasonable.” Full text of the decision CIVIL RIGHTS Racial profiling can be defense to drug charges Racial profiling can be a defense to drug charges arising from traffic stops under certain circumstances, the Arizona Supreme Court held on May 4. Jones v. Sterling, No. CV-04-0216-PR. Individuals, charged with drug offenses after discovery of drugs in their cars during traffic stops, claimed that the police officers were engaging in racial profiling and that the charges should have been dismissed on that basis. The trial court granted their request for document discovery on the racial profiling issue. But the court denied their motion to appoint as an expert witness on the subject Dr. Frederic Solop, director of the Social Research Laboratory at Northern Arizona University, who claims that data about the race of motorists stopped by the Yavapai County Department of Public Safety demonstrate a colorable claim of selective enforcement. The Arizona Supreme Court vacated, remanded and granted review, stating that the central issue is whether the selective enforcement claim can be a “defense” to the criminal charges. The court said that the availability of a 42 U.S.C. 1983 claim for selective enforcement does not make it the exclusive remedy, and held that a showing of selective enforcement can be a defense to a criminal prosecution, based on the equal protection clause. But the high court held that a trial court must determine whether the defendant has presented credible evidence of both discriminatory effect and intent before appointing an expert on the subject, and must consider whether the expert is “reasonably necessary.” Full text of the decision CONSTITUTIONAL LAW States can impose limits on right to bear arms The Second Amendment to the U.S. Constitution applies only to federal, not state, limits on the right to bear arms, the 2d U.S. Circuit Court of Appeals ruled on May 6. Bach v. Pataki, No. 03-9123. David Bach, who is described as a “model citizen” of Virginia, has a license in Virginia to carry a concealed handgun. Bach wanted to carry his gun when he traveled to New York to visit his parents. New York state police informed him that he couldn’t carry a concealed weapon in the state, and that nonresidents who are not employed in New York are ineligible for state licenses. There is no exemption under the state’s concealed weapon licensing scheme for nonresidents with otherwise valid licenses. Bach challenged the statute’s constitutionality. The district court ruled for the state. The 2d Circuit affirmed, ruling that the Second Amendment does not prohibit state regulation of handguns. Consequently, Bach’s facial challenge to the licensing statute failed. Nor did the scheme violate the privileges and immunities clause, because the discrimination against nonresidents is outweighed by the substantial interest the New York government has in restricting licenses to residents and workers within the state. Full text of the decision CRIMINAL PRACTICE Alcoholism no reason for continued commitment Alcohol dependence is a personality disorder, not a “mental disease or defect,” for purposes of the statute governing conditional releases of criminal defendants committed to psychiatric care, the Oregon Supreme Court ruled on May 5. Ashcroft v. Psychiatric Security Review Bd., No. S51508. Douglas Allen Ashcroft was found guilty, except for insanity, based on mental disease or defect, of attempted second-degree assault and placed in the care of the Psychiatric Security Review Board for five years. Ninety days later, the board held a hearing to determine if Ashcroft should be conditionally released. Ashcroft argued that he was entitled to release because his alcohol dependence was a personality disorder, not a mental disease or defect, and that he was eligible for release under the statute. The board rejected his argument, and ordered his commitment to continue. The appeals court reversed. The Oregon Supreme Court affirmed, relying on an earlier opinion declaring that drug dependence was a personality disorder rather than a mental defect, and remanded the case back to the psychiatric board for further proceedings. Full text of the decision DAMAGES Landowners entitled to three times timber value Landowners are entitled to three times the market value of the timber taken unlawfully from their property, the Louisiana Supreme Court determined on May 6. Hornsby v. Bayou Jack Logging, No. 2004-C-1297. While conducting logging operations for other landowners, Bayou Jack Logging accidentally crossed over onto the property of Larry and Barry Hornsby and Douglas and Bernadette Guidry and cut and removed trees without their consent. The Hornsbys and the Guidrys sued Bayou Jack for property damage. The trial court awarded the Hornsbys $224,000 and the Guidrys $154,000, which was greater than the value of the land and the trees. The award was subject to a 20% reduction for comparative fault due to the plaintiffs’ failure to put up a fence on their properties. The court of appeals affirmed as to the type and amount of damages but reversed due to comparative fault. The Louisiana Supreme Court reversed. Under Roman Catholic Church of the Archdiocese of New Orleans v. Louisiana Gas Service Co., 618 So. 2d 874, an award exceeding the value of the property may only be justified if the plaintiffs exhibit “personal reasons.” The court found that the plaintiffs’ self-serving testimony of their intent to develop the land at some point in the future did not justify an award greater than the value of the land and the trees. The proper measure of damages was under La. Rev. Stat. � 3:4278.1, the timber trespass statute, which imposes a penalty of three times the fair market value of any trees unlawfully removed without the landowners’ consent. Full text of the decision FAMILY LAW Divorced homemaker is not evading care duties A divorced mother is reasonable and not “shirking” if she chooses at-home mothering and thus requires child support, the Wisconsin Supreme Court held on May 6. Chen v. Warner, No. 2003AP288. A mother, Jane Chen, moved to amend the child support portion of a divorce judgment to require the father, John Warner, to pay $4,000 per month in child support, while Chen served as full-time child care provider for their children. Warner objected, arguing that Chen’s choice was “shirking,” and that her earning capacity as a physician, rather than her actual income, should be used to determine whether to award support. The court granted Chen’s motion. The appellate court affirmed, finding the mother’s decision to forgo employment as reasonable. The Wisconsin Supreme Court affirmed, holding that an appellate court must make an independent determination of reasonableness in such a case, giving appropriate deference to the trial court. The court held that Chen’s decision was reasonable, considering several factors, including: the parents’ agreement that, if feasible, it is better to have a full-time parent than two parents working outside of the home; Chen’s inability to find part-time employment nearby; and Warner’s ability make additional expenditures on the children without having a serious impact on his standard of living or his financial health. Full text of the decision GOVERNMENT Park employees aren’t immune from civil suit County parks employees, including the director of parks and the recreation supervisor, were not public officials for purposes of immunity from civil suit, the Maryland Court of Appeals held on May 5. De la Puente v. Frederick County, No. 50. Isabel de la Puente and Mark Willoughby sued Frederick County, Md., and various county employees after their minor daughter was injured in a sledding accident at a county park. Individual defendants moved to dismiss, arguing that, as public officials, they were immune from suit. A trial court granted their motion, and the parents appealed. Before the state’s intermediate appellate court rendered a decision, the state high court, the Maryland Court of Appeals, issued a writ of certiorari to review the case. Reversing, the Maryland Court of Appeals applied a four-pronged test for determining public official status for civil suits articulated by the court in its 1980 decision, James v. Prince George’s County, and held that the employees were not public officials-and were, thus, not immune from suit. The court said, “Applying the guidelines . . . we conclude that Appellees are not public officials. A position ‘created by law’ means that: (a) the office was created by Constitutional or legislative enactment, such as a statute or local ordinance; (b) an oath is generally prescribed; and (c) a commission is issued. There is nothing in this present record to indicate that the positions of Director of Parks, Capital Improvement Administrator, Recreation Superintendent, Park Superintendent and Safety Inspector, respectively, were positions ‘created by law,’ ‘have a definite term for which a commission is issued,’ or ‘require a bond or an oath.’ “ Full text of the decision IMMIGRATION LAW Reinstating deportation provision is retroactive The deportation reinstatement provision of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) is not impermissibly retroactive as applied to an alien who re-entered the United States before IIRIRA’s effective date but applied for adjustment of status after it, the 7th U.S. Circuit Court of Appeals held on May 4. Labojewski v. Gonzalez, No. 03-2755. Having been deported, Polish citizen Rafal Labojewski illegally re-entered the United States. In 1994, an alien relative visa petition was filed on his behalf. It was approved in 1995. Similarly, alien Faustino Chavez-Saldana illegally re-entered the United States before Congress adopted the IIRIRA, which became effective on April 1, 1997. Chavez-Saldana claimed that an alien relative visa petition was filed for him, which was approved in February 1997. The two aliens both applied for adjustment of status after IIRIRA’s enactment. IIRIRA’s � 1231(a)(5) requires the summary reinstatement of a prior removal order of an illegal alien who re-enters the United States illegally after any previous deportation. The Immigration and Customs Enforcement Bureau reinstated both aliens’ removal orders. They petitioned for review of the retroactivity issue. The 7th Circuit denied the petitions, holding that the permissibility of retroactivity turns on whether it would impair rights the party possessed when he acted, increase his liability for past conduct or impose new duties with respect to transactions already completed. The circuit court held that where an alien re-entered the United States and applied for adjustment of status prior to IIRIRA’s effective date, it was impermissibly retroactive. But here, the court said, there was no impermissible retroactivity because it applied to an alien who applied for adjustment of status after the statute’s enactment. Full text of the decision INSURANCE LAW Workers’ comp benefits get auto insurer off hook A worker whose injuries were covered under the workers’ compensation system wasn’t “legally entitled to recover” under the uninsured motorist provision of his automobile insurance policy, the Iowa Supreme Court held on May 8. Otterberg v. Farm Bureau Mutual Ins. Co., No. 30/04-0251. Darrin Otterberg, a paramedic with Jefferson County Ambulance, was injured during a single-vehicle accident while riding as a passenger in an ambulance driven by his co-worker. Otterberg received workers’ compensation benefits from his employer’s insurance company. He also made a claim under the uninsured motorist provision of his own automobile insurance policy with Farm Bureau Mutual Insurance Co., asserting that the ambulance was an uninsured vehicle, because the employer’s liability insurance policy that covered the ambulance did not cover him due to the applicability of the workers’ compensation laws. Farm Bureau denied the claim. Otterberg filed a petition for declaratory judgment. The trial court granted Farm Bureau’s motion for summary judgment. The Iowa Supreme Court affirmed. The uninsured motorist portion of Otterberg’s policy with Farm Bureau provided that the insurer “will pay damages for bodily injury an insured is legally entitled to recover from the owner or operator of an un-insured motor vehicle.” Although the phrase “legally entitled to recover” is liberally construed by the courts, the state high court concluded that it only applies to situations where the law provides for an underlying claim. Where, as here, the workers’ compensation statute is the exclusive remedy, Otterberg has no tort claim against his employer or his co-worker. Full text of the decision

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