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CIVIL PRACTICE No heightened pleading standard under PLRA A district court erred in dismissing a prisoner’s civil suit based on the prisoner’s failure to allege in his complaint that he had exhausted his administrative remedies, the 4th U.S. Circuit Court of Appeals held on May 17. Anderson v. XYZ Correctional Health Services Inc., No. 04-6885. After Rodney Anderson broke his arm during his incarceration in a Virginia prison, he sued various prison officials under 42 U.S.C. 1983, alleging violation of his Eighth Amendment rights. A federal district court dismissed Anderson’s suit because he had failed to allege in his complaint that he had exhausted his administrative remedies, holding that, because the Prison Litigation Reform Act (PLRA) required Anderson to exhaust his administrative remedies, he was required to allege exhaustion in his complaint. Reversing, the 4th Circuit acknowledged that the district court’s holding was in line with decisions of the 6th and 10th circuits. However, following the 1st, 2d, 3d, 7th, 8th, 9th and D.C. circuits, the court held that although the PLRA did require Anderson to exhaust his administrative remedies before filing suit, it did not create a heightened pleading standard requiring him to allege exhaustion in his complaint. The court said, “In our view, the language and structure of the PLRA make it clear that an inmate is not required to allege exhaustion of remedies in his � 1983 prison-conditions complaint. Instead, an inmate’s failure to exhaust his administrative remedies must be viewed as an affirmative defense that should be pleaded or otherwise properly raised by the defendant.” Full text of the decision CIVIL RIGHTS Nonlawyer parents can’t represent their children Nonlawyer parents may not represent their child in an action brought under the Individuals with Disabilities Education Act (IDEA), the 6th U.S. Circuit Court of Appeals ruled on May 18. Cavanaugh v. Cardinal Local School Dist., No. 03-4231. Bonnie and David Cavanaugh filed a pro se IDEA suit against their disabled son’s school district, saying that the district had not provided their son with a free appropriate education as required by the act. The Cavanaughs filed their suit on behalf of themselves and their son. The district moved to dismiss on the ground that the Cavanaughs cannot appear pro se in asserting rights under the IDEA. The parents replied that they may represent their son’s interests, and that the IDEA grants them their own cognizable right to seek a free appropriate education for their son. An Ohio district court sided with the school district. The 6th Circuit affirmed. Nothing in the IDEA abrogates the common law rule that nonlawyers cannot represent other litigants in court. The right of a disabled child to a free, appropriate education claim belongs to the child alone, and is not a right shared jointly with his parents. Therefore, any right on which the Cavanaughs could proceed on their own behalf would be derivative of their son’s right and wholly dependent upon the Cavanaughs’ proceeding, through counsel, with their appeal on their son’s behalf. Full text of the decision CONSTITUTIONAL LAW U.S. justified in defending unconstitutional law Although the U.S. Supreme Court held the Child Pornography Protection Act (CPPA) to be unconstitutional, a district court erred in awarding attorney fees to an adult entertainment industry trade association for its challenge to the law because the government was “substantially justified” in defending the law, the 9th U.S. Circuit Court of Appeals held on May 23. Gonzales v. Free Speech Coalition, No. 04-16172. Congress passed the CPPA in response to virtual child pornography. The law expanded the definition of child pornography to include visual depictions that appear to be minors engaging in sexual activity. The Free Speech Coalition, a trade association for the adult entertainment industry, filed suit in federal court, arguing that the law was unconstitutionally vague and a violation of the First Amendment. The district court granted summary judgment to the government, but the 9th Circuit reversed. Eventually, the U.S. Supreme Court held that the CPPA was unconstitutional. The coalition then moved for an award of attorney fees in district court, which was granted in the amount of $143,423. The court held that the government was not substantially justified in litigating the matter because “the constitutional flaw in the CPPA was recognizable from the start.” Reversing, the 9th Circuit held that the fees were not warranted because the government was substantially justified in litigating the case. The court said, “Multiple objective indicia support the reasonableness of the government’s position, including the novelty of the issue involved and the government’s string of successes in defending the CPPA against constitutional attack.” Full text of the decision State damages cap is no equal-protection breach A limit on damages recoverable in suits against the state or its political subdivisions does not violate the U.S. or Utah constitutions, the Utah Supreme Court held on May 17. Tindley v. Salt Lake City School District, No. 20030581. An assistant debate team coach employed by the Salt Lake City school district negligently caused an accident while driving a minivan to a competition, which resulted in the death of two students and serious injuries to three others. The district and its insurer settled with the injured students and the families of the deceased students, agreeing to pay them collectively $500,000, which was the maximum recoverable under the Utah Governmental Immunity Act. The plaintiffs reserved the right to challenge the constitutionality of the act, which caps the damages recoverable from the state or its political subdivisions. They filed suit, alleging that the cap violates the Utah Constitution, as well as the equal protection clause of the U.S. Constitution. The school district won on summary judgment. The Utah Supreme Court affirmed, holding that the cap violates neither constitution. The cap “was intended to preserve the treasuries of the state and its political subdivisions,” and “protects an entity’s operating budget from the possibility of substantial damages awards and the financial havoc they may wreak,” which is a legitimate governmental purpose. Further, a school’s operation of a student debate team, including transporting it to competitions, is fairly within a district’s “core activities.” Full text of the decision CRIMINAL PRACTICE Malice needed for proof of third-degree murder The mere sale of drugs is not evidence of malice aforethought under the “drug delivery resulting in death” statute, a divided Pennsylvania Supreme Court ruled on May 19. Commonwealth v. Ludwig, No. J-205-2004. Gregory Ludwig sold three double-dosed pills of the drug Ecstasy to 17-year-old Michelle Maranuk, who, in turn, had collected money from 15-year-old Brandy French, for the purchase. As it was the first time Brandy had ever taken Ecstasy, Michelle advised her to take only half the pill, but Brandy took the whole pill. Brandy eventually died from an overdose, and Ludwig was charged with drug delivery resulting in death, which is characterized as third-degree murder. Ludwig filed a habeas corpus petition arguing that the statute he was being tried under was unconstitutionally vague because it did not define the requisite mental state. The trial court granted the petition and dismissed the charge. The Pennsylvania Supreme Court affirmed. Though the drug-delivery statute does not include a mens rea element, the default position had to be employed, which, like other third-degree murder statutes, is malice. So the drug-delivery statute is not unconstitutionally vague. The state, however, failed to prove malice. Ludwig did not conceal the fact that the pill was a double dose, and Brandy took the whole pill, even though she was cautioned against doing so. Full text of the decision FAMILY LAW Alimony, asset division are calculated differently In determining income from a closely held corporation, there is no requirement that the same method be employed in fashioning an award of alimony and in distributing a corporation’s assets, a split New Jersey Supreme Court ruled on May 18. Steneken v. Steneken, No. A-100-2003. Marilyn and Gary Steneken divorced in 1995 after 24 years of marriage. Marilyn Steneken was awarded alimony, while assets from her husband’s company, Esco Corp., a closely held corporation, were divided. The trial court, however, calculated the value of the company differently for each purpose, and Marilyn Steneken appealed. An intermediate appellate court reversed, ruling that the trial court had improperly used what was called Gary Steneken’s “normalized” income, rather than his actual income, when computing his wife’s alimony. The New Jersey Supreme Court affirmed. For purposes of computing alimony, the actual income of the paying spouse is the lodestar for determining the final amount to be awarded. For the purpose of valuing a closely held corporation in dividing property, various techniques, including the normalization of excess salary expenses, may be included at the trial judge’s discretion. Full text of the decision INSURANCE LAW Surgeon unable to do surgery is fully disabled An orthopedic surgeon was totally disabled after an accident rendered him unable to perform surgery but still able to conduct routine office visits, the 8th U.S. Circuit Court of Appeals held on May 19. Dowdle v. National Life Ins. Co., No. 04-2628. National Life Insurance Co. insured Dr. John A. Dowdle Jr. under a disability income policy that defined total disability as the inability “to perform the material and substantial duties of an occupation.” Dowdle listed his occupation as orthopedic surgeon and stated that his duties were seeing patients, performing surgery, reading X-rays and promoting referrals. In addition, Dowdle performed independent medical examinations (IMEs). As a result of injuries from a 2000 plane accident, Dowdle could no longer perform orthopedic surgery because he couldn’t stand at an operating table for long periods of time. While National Life initially paid Dowdle the maximum in total disability benefits, it determined that the doctor was only residually disabled after he resumed performing office visits and IMEs. A Minnesota federal court found Dowdle to be totally disabled. The 8th Circuit affirmed, finding that performing surgery was the most important material and substantial duty of Dowdle’s occupation. While he was still able to perform office visits and IMEs, his disability prevented him from performing the most important part of his job. Full text of the decision LEGAL PROFESSION Law firm partnership contract is unenforceable Provisions of a law firm’s partnership agreement, which required departing partners to compensate the firm for legal work done for firm clients the partners took with them, violated public policy and were unenforceable, the Massachusetts Supreme Judicial Court held on May 16. Eisenstein v. Conlin, No. SJC-09358. Ronald Eisenstein and David Resnick were partners in the law firm Dike, Bronstein, Roberts & Cushman (DBRC) when they left to join a predecessor firm to Nixon Peabody, where they began doing legal work for former clients of DBRC. After Eisenstein and Resnick sued DBRC, seeking an accounting of amounts due them under the partnership agreement, DBRC counterclaimed, arguing, among other things, that Eisenstein and Resnick had violated provisions of the firm’s partnership agreement requiring departing partners to compensate the firm for legal work done for the firm’s clients for four years after leaving the firm. A trial court granted a motion for summary judgment by Eisenstein, Resnick and Nixon Peabody. The Massachusetts Supreme Judicial Court reviewed the case on its own motion. Affirming, the state high court held that the provisions were unenforceable because they created economic disincentives to competition that couldn’t be justified by any legitimate interest DBRC had in its survival. The court said, “[i]f enforced, these provisions would provide clear disincentives for former DBRC partners to provide legal services to current or former DBRC clients, even where those clients have determined that their own interests would best be served by such representation.” Full text of the decision

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