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CIVIL PRACTICE Nonattorney-signed claim isn’t legal nullity A complaint signed by a nonattorney was valid after it was amended by the addition of an attorney’s signature, the Minnesota Supreme Court held on June 23. Save Our Creeks v. City of Brooklyn Park, Minn., No. A03-1794. William Barton, a nonattorney, filed a complaint against the city of Brooklyn Park, Minn., as the representative of Save Our Creeks, a nonprofit, following the city’s denial of Save Our Creeks’ petition for environmental review. The city filed a motion to dismiss based on the fact that an attorney had not signed the summons and complaint. The trial court allowed Brian Bates, an attorney, to sign the complaint, and then denied the motion to dismiss because it allowed the attorney’s signature to relate back to the date of the complaint’s filing. The court certified to an intermediate appellate court the question of whether a complaint filed and signed on behalf of a corporate entity by a nonattorney is a legal nullity. The appellate court answered that it was not. The Minnesota Supreme Court affirmed, holding that dismissing a case based on a technicality such as the lack of a signature does not promote the resolution of cases on their merits. Addition of an attorney’s signature to a corporation’s complaint should be allowed if, upon notice, the corporation diligently corrects its mistake by obtaining counsel, if the nonattorney’s participation in the action is minimal; and the nonattorney’s participation results in no prejudice to the opposing party. Full text of the decision CONSTITUTIONAL LAW ‘Lawrence’ doesn’t cover state anti-incest law Recent U.S. Supreme Court law on sexual behavior among consenting adults does not render a law criminalizing incest unconstitutional, the 7th U.S. Circuit Court of Appeals held on June 22. Muth v. Frank, No. 03-3984. Allen Muth and his sister married and had three children. The state of Wisconsin petitioned to terminate their parental rights, and the courts approved. Both parents were convicted of incest and sent to prison. In his petition for a writ of habeas corpus, Muth argued that the incest statute is unconstitutional insofar as it seeks to criminalize a sexual relationship between two consenting adults. Before the completion of briefing by the parties, the U.S. Supreme Court issued its decision Lawrence v. Texas, 539 U.S. 558 (2003), holding that a Texas statute prohibiting homosexual sodomy was unconstitutional insofar as it applied to the private conduct of two consenting adults. A Wisconsin federal court denied Muth’s petition. The 7th Circuit affirmed, holding that Muth is not a beneficiary of the rule announced in Lawrence, pointing out that Lawrence did not address the constitutionality of incest. The court said that Lawrence did not announce “a fundamental right, protected by the Constitution, for adults to engage in all manner of consensual sexual conduct, specifically in this case, incest.” Full text of the decision State can restrict change to school aid amendment A Massachusetts constitutional amendment forbidding the popular initiative method of amending its prohibition of public support for religious schools is constitutional, the 1st U.S. Circuit Court of Appeals held on June 24. Wirzburger v. Galvin, No. 04-1625. The Massachusetts Constitution allows for amendment by popular initiative. Parents of children in religiously affiliated schools submitted an initiative petition for certification to the Massachusetts attorney general, to change Article 18 of the Massachusetts Constitution, the “anti-aid amendment,” which prohibits public financial support for private primary or secondary schools. The parents proposed to add a sentence stating that the anti-aid amendment shall not prevent state loans, grants or tax benefits to students attending private schools, regardless of the schools’ religious affiliation. The AG denied certification because Article 48 of the constitution prohibits amendment of the anti-aid amendment by initiative and excludes from the initiative process amendments that relate to “religious institutions.” The parents challenged the constitutionality of the two exclusions. A Massachusetts federal court granted the AG summary judgment. The 1st Circuit affirmed, holding that the exclusions are narrowly drawn to further a significant state interest and thus survive intermediate scrutiny. On free speech, “[c]learly, plaintiffs have been prevented in engaging in the sort of activity that implicates the First Amendment,” said the court, but while such exclusions “eliminate a valuable avenue of expression” about the generating of laws, “the speech restriction is no more than an unintended side-effect of the exclusions.” Full text of the decision LEGAL PROFESSION Legal malpractice action needs proof of innocence In a legal malpractice action against a criminal defense attorney, the attorney’s client must prove that he or she is innocent of the underlying criminal charges, the Washington Supreme Court held on June 23. Ang v. Martin, No. 74698-2. The government indicted Jessy Ang, a psychiatrist, and his wife, Editha, on 18 counts, including conspiracy to defraud the United States, bank and tax fraud, and filing false statements. On the fifth day of trial, upon the recommendation of their attorneys Richard Hansen and Michael G. Martin, the Angs pleaded guilty to two of the 18 counts. After retaining other attorneys, the Angs successfully moved to withdraw the pleas. The case once again went to trial, and the Angs were acquitted on all 18 counts. The Angs sued Hansen and Martin for legal malpractice. The trial court denied the defendants’ motion for summary judgment. However, the jury returned a verdict in favor of the defendants because the Angs had not proved by a preponderance of the evidence that they were innocent of all the criminal charges brought against them. An intermediate appellate court affirmed. The Washington Supreme Court affirmed, holding that the Angs had to prove their actual innocence and not just their legal innocence by a preponderance of the evidence. The court said that to hold otherwise would mean that the plaintiffs would be unable to establish that the alleged negligence of the defense attorneys was the legal cause of their harm. Full text of the decision Prosecutor’s employees can sue over retaliation Although they had absolute immunity for their decision not to prosecute cases referred by a former employee, prosecutors did not have such immunity for their alleged retaliatory conduct against that employee, the 9th U.S. Circuit Court of Appeals held on June 23. Botello v. Gammick, No. 03-16618. After physicians determined that a nurse who testified frequently as an expert in sexual abuse cases had committed “gross error” in finding that children had been abused, Washoe County Sheriff’s Office investigator Rene Botello suggested to the district attorney, Richard Gammick, and his deputy, John Helzer, that the sexual assault program should be audited. According to Botello, Gammick and Helzer ordered him to remain silent, and after he reported his concerns to the Nevada Attorney General’s Office and the FBI, they defamed him and tried to get him fired from his subsequent job as a school investigator by refusing to accept any cases he referred for prosecution. Botello sued the county, Gammick and Helzer under 42 U.S.C. 1983, but a Nevada district court dismissed the suit, holding that the prosecutors had absolute prosecutorial immunity. Reversing, the 9th Circuit conceded that prosecutors have absolute immunity for their decision not to prosecute, but said that the district court erred in dismissing the suit because the prosecutors did not have absolute immunity for the alleged retaliation. “Their defamatory comments about Botello were simply an attempt to disrupt an employment decision,” the court said. Full text of the decision TAXATION Use-tax statutes do not breach commerce clause State statutes allowing cities to impose local use taxes do not violate the U.S. Constitution’s commerce clause, the Missouri Supreme Court held on June 21. Kirkwood Glass Co. Inc. v. Director of Revenue, No. SC86347. The city of Kirkwood, Mo., charges “use taxes” on goods purchased outside Missouri and delivered to its local jurisdiction. Such taxes are meant to eliminate incentive to buy from out-of-state sellers to avoid local sales taxes. A Missouri statute permits use taxes provided that the jurisdiction’s local use tax is less than or equal to its local sales tax. Kirkwood Glass applied for a refund of use taxes paid to the city, alleging, among other things, that the state statutes permitting cities to impose local use taxes violate the commerce clause of the U.S. Constitution. The director of revenue denied the application. The administrative hearing commission upheld the denial. Kirkwood Glass sought review. The Missouri Supreme Court affirmed, saying that the commerce clause does not prohibit all state or local use taxes. “Rather, it requires that the use tax be truly compensatory and that the burdens imposed on interstate and intrastate commerce be equal.” The court noted that here the use tax was less than the local sales tax, thus complying with the mandate in Associated Industries of Missouri v. Lohman, 511 U.S. 641 (1994). Full text of the decision TORTS County has no duty to protect voluntary patient A county has no duty to protect a voluntarily committed mental patient from harm, the Montana Supreme Court held on June 21. Eves v. Anaconda-Deer Lodge County, No. 04-764. Zachary Eves Bear Don’t Walk, a voluntarily committed patient at Montana State Hospital, left the hospital grounds one day without notifying anyone. It was about 37 degrees outside with snow on the ground. When the hospital staff noticed his disappearance, the nursing supervisor called local law enforcement to ask for help in locating him. The police dispatcher told the supervisor that the police had no legal basis to stop and detain Eves because he was voluntarily committed. The police did not search for Eves but kept a lookout for him. Several weeks later, Eves’ body was found about six miles from the hospital. Helen Eves, Zachary’s mother, brought a complaint against Anaconda-Deer Lodge County. The trial court granted the county’s motion for summary judgment. The Montana Supreme Court affirmed, concluding that that no special relationship existed between the county and Eves to create a duty on the part of the county to protect him from harm. Full text of the decision

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