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ADMINISTRATIVE LAW No federal pre-emption of Calif. appliance rules The Federal Energy Policy and Conservation Act (EPCA) does not pre-empt California regulations requiring appliance manufacturers to submit data about their products to state regulators, the 9th U.S. Circuit Court of Appeals held on June 3. Air Conditioning and Refrigeration Inst. v. Energy Resources Conservation and Dev. Comm’n, No. 03-16621. Congress enacted the EPCA in 1975 to reduce energy consumption, and said that the law superseded state regulations requiring disclosure of energy-consumption information of covered products in certain circumstances. Since 1977, the state of California has required appliance manufacturers to submit data to the state on the energy consumption of their products. Four appliance trade associations challenged the regulations, arguing that they were pre-empted by EPCA. A district court enjoined the state from enforcing the regulations, and the state appealed. Reversing, the 9th Circuit said that the regulations were part of what it called an “extensive and laudable appliance efficiency program,” and held that they were not pre-empted by EPCA. The court said further that the pre-emption analysis demanded a narrow interpretation of the federal law. The court added: “There is no indication that Congress, in the preemption provision of EPCA as amended by subsequent Acts, intended to preempt state regulations requiring the submission of data to state government agencies. The legislative history instead demonstrates that Congress intended to preempt state energy efficiency standards, testing procedures, and consumer labeling requirements.” Full text of the decision CIVIL PRACTICE Attachment to probate pleading isn’t pleading Attaching a contract containing an attorney-fees clause to a creditor’s petition for a demand against an estate wasn’t an adequate and timely claim for such fees, the Kansas Supreme Court held on June 3 in an issue of first impression. In the Matter of Estate of Wolf, No. 91,225. Francis J. Wolf and Jasper Marino owned Marino and Wolf Inc. (M&W), an insurance brokerage company. Wolf and Marino became parties to an option agreement that contained a clause stating that the prevailing party in any action to enforce the terms of the agreement would be entitled to attorney fees and costs. Wolf died on Sept. 24, 1998, and his wife Nancy was named executor of his will. Wolf’s estate included 333 shares of M&W stock. After she issued a notice to creditors, M&W filed a petition seeking to buy the 333 shares of M&W stock under the option agreement, attaching copies of the option agreement to the petition. The petition itself did not contain any mention of attorney fees. Wolf disputed the validity of the option agreement, and the trial court ruled in favor of M&W. M&W won attorney fees under the option agreement, as the prevailing party in the litigation. An intermediate appellate court reversed. The Kansas Supreme Court affirmed. Kan. Stat. Ann. � 59-2239, the nonclaim statute of the probate code, states that “[a]ll demands . . . against a decedent’s estate, whether due or to become due, whether absolute or contingent . . . not exhibited as required by this act within four months after the date of the first published notice to creditors . . . shall be barred from payment.” Finding M&W’s attorney-fees claim barred by the four-month statute of limitations, the court held that merely attaching the option agreement to the petition didn’t serve to include the attorney-fees claim in the petition. Full text of the decision CONSTITUTIONAL LAW Va. abortion law violates 14th Amendment A Virginia law prohibiting “partial-birth” abortions was unconstitutional because it did not contain any exception for consideration of the health of the mother, the 4th U.S. Circuit Court of Appeals held on June 3. Richmond Medical Center for Women v. Hicks, No. 04-4353. In 2003, the Virginia General Assembly passed a law codified at Va. Code Ann. � 18.2-71.1, making it a felony to perform “partial birth infanticide.” The law prohibited abortions where the fetus was “substantially expelled or extracted” from the mother, and although it contained an exception for procedures to prevent the death of the mother, it did not contain any exception to protect the health of the mother. A Virginia women’s clinic and an obstetrician sued, challenging the law as unconstitutional under the 14th Amendment because it did not contain any health exception. A federal district court granted summary judgment to the plaintiffs and invalidated the law. Affirming, the 4th Circuit cited the U.S. Supreme Court’s decision in Stenberg v. Carhart, which invalidated a Nebraska abortion law that didn’t provide for a health exception. The 4th Circuit quoted the high court as saying that “the governing standard requires an exception ‘where it is necessary, in appropriate medical judgment for the preservation of the life or health of the mother,’ for this Court has made clear that a State may promote but not endanger a woman’s health when it regulates the methods of abortion.” Full text of the decision CRIMINAL PRACTICE Convict’s banishment from county disallowed It is not proper to sentence a man convicted of battering his girlfriend to banishment from the county, the Wyoming Supreme Court held on June 3. Crabtree v. State of Wyoming, No. 04-13. Ollie Jenning Crabtree was convicted of battering a household member. As part of his sentence, a Wyoming trial court banished him from Natrona County. The Wyoming Supreme Court affirmed the conviction but reversed the sentence, saying that to “permit one state to dump its convict criminals into another is not in the interests of safety and welfare.” In addition, the “rehabilitative purposes of sentencing” are best served if the conditions are specifically tailored to address the particular defendant and the crime, not simply an “arbitrary geographic boundary like an entire county.” Full text of the decision GOVERNMENT Conference committee may meet in private Members of a legislative conference committee may meet privately to negotiate a bill without violating the state’s constitutional provision mandating public access to government meetings or the state’s “right-to-know” law, the New Hampshire Supreme Court ruled on June 2. Hughes v. Speaker of the New Hampshire House of Representatives, No. 2005-215. The two houses of the New Hampshire Legislature worked up bills dealing with school financing. Though all committee meetings where the bills were discussed were open to the public, the speaker of the House and the president of the Senate decided to hold the conference committee in private. A Republican member of the House who had been excluded from the conference committee sought to discharge the committee for violating the state’s right-to-know rule and the state constitution. He asked the trial court to invalidate the committee’s final report and void the bill that was finally passed. The trial court granted the relief sought. The New Hampshire Supreme Court reversed, finding that the constitutional importance of free legislative debate outweighs the public’s right of access to the negotiations. The court also ruled that even though the right-to-know law generally applies to the legislature, the court ruled, it was a nonjusticiable political question as to whether the body complied with the act. Full text of the decision LABOR LAW Davis-Bacon Act doesn’t pre-empt state wage law In assessing truckers’ wages on a joint state and federal construction project, Wisconsin’s prevailing wage law is not pre-empted by federal wage law, the 7th U.S. Circuit Court of Appeals held on June 3. Frank Bros. Inc. v. Wisconsin Dept. of Transportation, No. 03-3207. A Wisconsin construction company entered into contracts with the Wisconsin Department of Transportation (DOT) that were funded by both federal and state funds. Frank Bros. hired independent trucking contractors and subcontractors to transport and haul certain materials. DOT ordered Frank Bros. to comply with Wisconsin’s prevailing wage law. Frank Bros. filed a complaint seeking a declaratory judgment and injunctive relief, arguing that provisions of the Davis-Bacon Act, 40 U.S.C. 3141-3148, and the Federal-Aid Highway Act, 23 U.S.C. 101, et seq., pre-empt application of Wisconsin’s prevailing wage law, Wis. Stat. � 103.50, to truck drivers who perform transportation and delivery work pursuant to joint federal-state highway contracts. A Wisconsin federal court dismissed the complaint. The 7th Circuit affirmed. The Davis-Bacon Act requires contractors and subcontractors on federal construction projects to pay qualified employees the prevailing wage rate, but the law did not require Frank Bros. to pay prevailing wages to truckers, who were not “qualified employees.” However, Wisconsin’s prevailing wage statute expressly includes truck drivers, and Frank Bros. contracts require compliance with both the federal and state schemes. The court concluded that federal law did not pre-empt Wisconsin’s regulation, which, in any case, was in accord with federal law. Full text of the decision TORTS No public nuisance suit over personal injuries There is no common law cause of action under the doctrine of public nuisance for purely personal injuries, the South Carolina Supreme Court ruled on May 31 in an issue of first impression. Overcash v. South Carolina Elec. and Gas Co., No. 25990. Karl Overcash was severely injured when he crashed his boat into a privately owned dock, which spanned the navigable waters of Lake Murray, connecting the owners’ property to a small island more than 200 feet away. Overcash sued the utility for granting a post-construction permit for the dock. He said the dock was a public nuisance. The trial court granted the utility’s motion to dismiss, holding that there was no private cause of action for public nuisance. An intermediate appellate court reversed. The South Carolina Supreme Court reversed, holding that the addition of personal injury to public nuisance actions would “perpetuate the erosion of any semblance of doctrinal consistency in the common law of nuisance.” No such right exists in South Carolina statutory law. A provision relating to public nuisances and obstruction of navigable waters does not include a private cause of action. Full text of the decision TRUSTS AND ESTATES Surviving spouse entitled to homestead for life A surviving spouse is entitled to the homestead she shared with her husband for life or until she remarries, the North Dakota Supreme Court ruled on June 2. In the Matter of the Estate of Kimbrell, nos. 20040226 and 20040322. Gerald and Phyllis Kimbrell married in 1990 and lived on Gerald’s homestead throughout the duration of their marriage. In 2002, Gerald Kimbrell died, leaving his estate to his three adult children from a previous marriage as specified in a 1986 will. He did not specifically devise his homestead, which was appraised at $65,000. Out of a net augmented estate valued at $742,075.76, Phyllis Kimbrell received $394,354.92 in nonprobate transfers, $10,000 in exempt property and an $18,000 family allowance. The trial court granted her a “homestead estate with right to possession, care, control, income and rents for life or until she remarries in the [homestead] property.” The North Dakota Supreme Court affirmed, citing North Dakota law. N.D. Cent. Code � 30-16-02 provides that “[u]pon the death of a person in whom the title to real property constituting a homestead is vested,” the homestead estate shall go to “the surviving spouse for life or until the surviving spouse again marries.” In addition, Section 30-16-01 defines the homestead estate as “the right to the possession, use, control, income, and rents of the real property held or occupied by the decedent as a homestead at death.” Full text of the decision

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