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CONSTITUTIONAL LAW Partial-birth abortion act of 2003 unconstitutional The partial-birth Abortion Ban Act of 2003, which outlaws abortions where a fetus is partially delivered for the purpose of killing the fetus, is unconstitutional because it does not contain an exception to preserve the health of the mother, the 8th U.S. Circuit Court of Appeals ruled on July 8. Carhart v. Gonzales, No. 04-3379. The federal partial-birth abortion act sentences physicians who knowingly perform partial-birth abortions to up to two years’ imprisonment. It covers procedures used in late-term procedures, specifically dilation and evacuation (D&E) and dilation and extraction (D&X). In both, a physician dilates a woman’s cervix, reaches in with an instrument, and pulls out the fetus after collapsing its skull. The act allows an exception for a “partial-birth abortion that is necessary to save the life of the mother.” The U.S. Supreme Court in Stenberg v. Carhart required a health exception whenever substantial medical authority supports the medical necessity of a banned procedure. While there is no consensus in the medical community as to the safety and necessity of the banned procedures, there is also no new evidence to distinguish this case from Stenberg. The 8th Circuit concluded that substantial medical authority supports the medical necessity of a health exception. Full text of the decision Union’s grievance is not a First Amendment matter A union failed to show that it had engaged in conduct protected by the free speech clause of the First Amendment, the Nebraska Supreme Court determined on July 8. Fraternal Order of Police v. County of Douglas, No. S-04-611. The Fraternal Order of Police, Lodge No. 8 represents employees of the Douglas County Department of Corrections. Corrections officers in Douglas County are covered under a collective bargaining agreement between the union and the county. According to the terms of the agreement and long-standing practice, the union president and other union officers could be excused from work without loss of pay to attend meetings of the Douglas County Board of Commissioners or to meet with individual county commissioners. On Jan. 28, 2003, the union held an emergency meeting to direct the union’s executive board to seek relief from the board for alleged contractual violations by the department. The following day, the department issued a memorandum stating that no union employee would be allowed time off to meet with county commissioners during work time unless vacation time was used. The union filed a petition for declaratory and injunctive relief, claiming that the issuance of the memorandum violated the freedom-of-speech rights of the union and the union president. The trial court granted the county’s motion for summary judgment. The Nebraska Supreme Court affirmed. The union’s emergency meeting and other disputes within the facility were not matters of public concern because they did not relate to political or social issues in the community. Similarly, the policy addressed in the memorandum was not a matter of public concern but dealt with internal job-related grievances. Further, union members were not limited in their right to meet with county commissioners, as they could do so outside of work hours. Full text of the decision CONSUMER PROTECTION AG can’t sue over faulty investment reports The state attorney general can’t sue under the Consumer Credit and Protection Act (CCPA) based on conduct that is ancillary to the general business of buying and selling securities, the West Virginia Supreme Court of Appeals ruled on July 7. West Virginia ex rel. Darrell V. McGraw v. Bear, Stearns & Co. Inc., No. 32515. The West Virginia AG sued several companies that provided stock and securities research analysis, alleging that, in violation of the CCPA, the companies’ investment banking services manipulated their supposedly independent research analysts into issuing false forecasts to promote debt and equity securities issued by companies with whom the companies had undisclosed banking relationships. The trial court granted the financial companies’ motion to dismiss, which was based on the companies’ argument that the AG did not have authority to bring such a case. The AG had argued that even though the CCPA did not directly cover the buying and selling of securities, it did cover the sale and distribution of fallacious research reports. The trial court asked via certified question whether the AG has authority to bring this kind of action. The West Virginia high court answered the certified question with a “no.” Providing investment advice and analysis is “so ancillary or subsidiary” to the buying and selling of securities, that such conduct cannot be reasonably interpreted as falling within the scope of the consumer-type transactions governed by the CCPA. Full text of the decision CRIMINAL PRACTICE Records remain sealed for sentencing purposes A trial court can’t make sealed records available to prosecutors for the purpose of sentencing recommendations, the New York Court of Appeals ruled on July 6. In the Matter of Katherine B., No. 113. Sixteen individuals were convicted in criminal court of obstructing governmental administration and disorderly conduct for participating in a demonstration that shut down Fifth Avenue in midtown Manhattan. The prosecution was directed to provide the trial court with criminal histories on the individuals for sentencing purposes. The records of four of the individuals had been sealed. The trial court granted the prosecution’s motion to unseal the records. The prosecution then submitted a sentencing recommendation based on information gleaned from the sealed records. The court denied the four defendants’ motion to vacate the unsealing order, and an intermediate appellate court affirmed. The New York high court reversed. State law specifically gives prosecutors the right to view sealed records in only one procedural instance in a misdemeanor marijuana case. A broader right exists for a “law enforcement agency,” but the court ruled that the legislative history and the statute’s provisions “strongly suggest” that the statute’s primary focus is on unsealing records for investigation, not sentencing. Full text of the decision EVIDENCE Inmate’s discussion with therapist isn’t privileged An inmate’s conversation with a prison therapist in which he admitted mailing an assassination threat to President George W. Bush was not privileged because it did not take place during the course of diagnosis or treatment, the 9th U.S. Circuit Court of Appeals held on July 5. United States v. Romo, No. 04-30131. Robert Romo, an inmate at a Washington state prison, told Donald LaPlante, a licensed counselor at the prison, that he had mailed a letter to the White House in which he said someone should put a bullet in the president’s head and that he was willing to do so. LaPlante testified about the conversation at Romo’s trial for threatening the president in violation of 18 U.S.C. 871(a). After he was convicted, Romo appealed, arguing, inter alia, that the trial court erred in denying his motion to suppress LaPlante’s testimony because his communications to LaPlante were covered by the psychotherapist-patient privilege. Affirming, the 9th Circuit held that the conversation was not privileged because it didn’t take place during the course of diagnosis or treatment. Deferring to the trial court, the court said, “When LaPlante met with inmates, he sometimes provided counseling, but the purpose of the encounters varied from visit to visit. This variety of duties precludes an assumption that LaPlante’s meeting with Romo was a psychotherapy session or that Romo and LaPlante had established an exclusive psychotherapist-patient relationship.” Full text of the decision LAND USE AND PLANNING Determination of impact fees is subject to statute The imposition of impact fees as a condition on the issuance of a building permit is a land-use decision subject to the procedural requirements of the Land Use Petition Act (LUPA), the Washington Supreme Court held on July 7. James v. County of Kitsap, No. 73747-9. In October 1995, the Central Puget Sound Growth Management Hearings Board (GMHB) invalidated Kitsap County’s 1994 comprehensive plan as being noncompliant with the Growth Management Act (GMA). The GMHB also invalidated the county’s 1996 comprehensive plan for the same reason. The plans contained a capital facilities plan element providing the capital facility improvements necessary for new development. In 1998, GMHB adopted the county’s third comprehensive plan. In 1991, Kitsap County had adopted an impact fee ordinance to help fund capital facility improvements. From 1992 to 1995, before GMHB invalidated the 1994 comprehensive plan, the county collected impact fees for roads and parks from any applicant for a residential, commercial or mobile-home building permit. After GMHB’s 1995 decision, the county had applicants for building permits sign an agreement promising to pay impact fees when the county had a comprehensive plan that complied with the GMA. In 1999, developers sought a refund of the impact fees. The trial court granted the developers’ motion for summary judgment and awarded them $3,346,506. The Washington Supreme Court reversed and remanded. The LUPA requires that a land-use petition must be filed within 21 days of a land-use decision in order to qualify for judicial review. Case law holds that building permits are ministerial decisions subject to judicial review under the LUPA. The court found that the process of determining impact fees is inextricably bound with the issuance of building permits. As the imposition of impact fees was a land-use decision, the developers’ claim was barred for failure to file a petition within the 21-day period required by the LUPA. Full text of the decision TORTS ‘Economic loss’ bars bad-milk tort claim A purchaser of milk replacement for livestock, whose livestock died of malnourishment, is barred by the economic loss doctrine from pursuing tort claims, the Wisconsin Supreme Court held on July 8. Grams v. Milk Products Inc., No. 2003-AP801. Gerald and Joliene Grams purchased milk replacement for livestock from Milk Products Inc. Some of their livestock died. The Grams filed suit sounding in tort. A Wisconsin trial court granted summary judgment to Milk Products, finding that the tort claim was barred by the economic loss doctrine, which is intended to preserve the distinction between contract and tort by preventing a party from using tort remedies to get compensation for purely economic losses arising from a contract. An intermediate appellate court affirmed. The Wisconsin Supreme Court affirmed, holding that if claimed damages are the result of disappointed expectations of a bargained-for product’s performance, the economic loss doctrine applies to bar tort claims of the plaintiff, who must rely upon contractual remedies alone. There is an “other property” exception to the doctrine, which does not preclude a product purchaser’s claims of personal injury or damage to property other than the product itself. However, the court said, “[b]ecause we find that this tort claim is, at bottom, based on disappointed performance expectations, we hold that it does not fit within the ‘other property’ exception and is therefore barred by the economic loss doctrine.” Full text of the decision ‘BMW v. Gore’ doesn’t affect arbitration punies A $300,000 punitive damages award without any finding of compensatory damages in an arbitration proceeding over Subway sandwich store franchises did not violate due process under the U.S. Supreme Court’s decision in BMW of North Am. Inc. v. Gore, the Connecticut Supreme Court held on July 12. Hadelman v. DeLuca, No. SC 17124. Gerald Hadelman and other franchisees of Doctor’s Associates Inc.-the franchisor of Subway sandwich stores-entered an arbitration proceeding with Doctor’s and Frederick DeLuca, a founder of Subway and 50% owner of Doctor’s, alleging that DeLuca violated the franchise agreement in preventing the franchisees from being elected to the Subway Franchise Advertising Fund Trust. After a trial court confirmed an arbitration award in favor of the franchisees, awarding them $300,000 in punitive damages without any finding of compensatory damages, DeLuca and Doctor’s appealed, arguing that the punitive damages award was excessive and thus in breach of due process under the U.S. Supreme Court’s Gore decision. Affirming, the Connecticut Supreme Court held that the Gore due process analysis did not apply to arbitration awards. The court said, “[B]ecause an arbitration award does not constitute state action and is not converted into state action by the trial court’s confirmation of that award, an arbitration panel’s award of punitive damages does not implicate the due process clause, regardless of how excessive the award may be.” Full text of the decision

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