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ADMINISTRATIVE LAW Director has no authority to revoke driver’s license The director of the Nebraska Department of Motor Vehicles (DMV) lacked the authority to revoke a driver’s license because of deficiencies in the arresting officer’s sworn report, the Nebraska Supreme Court held on July 15. Hahn v. Neth, No. S-04-560. Sergeant Dale Miller of the Sidney Police Department arrested Edward Hahn after he failed field sobriety tests at a traffic stop. Hahn also failed a chemical breath test at the police station. On the sworn report that Miller forwarded to the director of the DMV, he failed to check the boxes indicating that Hahn “was requested” to submit to the required test and the “type of test” to which he was submitted. Following an administrative hearing, the director revoked Hahn’s license for 90 days. The trial court vacated the revocation. The Nebraska Supreme Court affirmed. Neb. Rev. Stat. � 60-6, 205(3) requires that an arresting officer who submits an individual to a chemical test to disclose the presence of alcohol, and has the results available to him while the arrested person is still in custody, must forward a sworn report to the director that states, among other things, that the “person was requested to submit to the required test” and “the type of test to which he or she submitted.” An administrative body has only as much authority as a statute gives it to accomplish the plain purpose of the statute. Since administrative license revocation statutes give the DMV director the authority to revoke driver’s licenses, and since the sworn report plays an important role in administrative license revocation proceedings, the court determined that the minimum statutory requirements for the sworn report must be met before jurisdiction is conferred. Full text of the decision ATTORNEY FEES Dischargeability-action win gains fees for debtor A prevailing debtor in a dischargeability action brought by his creditor can recover attorney fees and costs if such recovery is due under an enforceable contractual right provided for by state law, the 11th U.S. Circuit Court of Appeals ruled on July 13 in a case of first impression. In re Martinez, No. 04-11760. Barnett Bank made a commercial loan of $50,000 to Carlos Martinez. Their contract provided that the creditor would be entitled to any attorney fees incurred in enforcement of the agreement. After the loan was assigned to the Cadle Co., Martinez filed for Chapter 7 bankruptcy. Cadle filed an adversary complaint in the bankruptcy case, arguing that the debt should not be dischargeable due to misrepresentations made in obtaining the loan. The bankruptcy court ruled that the loan was dischargeable and granted Martinez’s motion for attorney fees against Cadle. A Florida federal court reversed. The 11th Circuit reversed. Fla. Stat. Ch. 57.105(6) contains a reciprocal attorney fee provision stating that “[i]f a contract contains a provision allowing attorney’s fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney’s fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract.” The court found that disallowing the prevailing debtor attorney fees when a prevailing creditor would be entitled to such fees would go against the primary purpose of the bankruptcy statute “to relieve the honest debtor from the weight of oppressive indebtedness and permit him to start afresh.” Full text of the decision CONSTITUTIONAL LAW No right to counsel in parental rights case A mother in a termination-of-parental-rights case has no claim for ineffective assistance of counsel because no constitutional right to counsel exists, the Nevada Supreme Court held on July 11. In the Matter of the Parental Rights as to N.D.O., T.L.O. and T.O., No. 42937. Letesheia O. had three children. After a long history of arrests and convictions for theft to support her cocaine habit and of physical abuse and neglect of her children, the state removed the three children from her. The trial court granted the state’s petition to terminate the parental rights of Letesheia and the putative father. Upon appeal, Letesheia claimed ineffective assistance of counsel, due to the fact that her court-appointed attorney failed to object during trial to hearsay statements. The Nevada Supreme Court affirmed. Nev. Rev. Stat. � 128.100(2) allows the court the discretion to appoint counsel for indigent parents in termination-of-parental-rights cases. Applying a due process analysis, the court determined that there was no high risk of an incorrect decision because the evidence to which the attorney should allegedly have objected, would have been admissible over any objections. While the lower court exercised its discretion properly in appointing counsel, Letesheia had no absolute right to counsel. Full text of the decision CRIMINAL PRACTICE Private ‘Allen’ charge to one juror is improper Private delivery of an Allen charge to a single juror was impermissible, making a new trial necessary, the 10th U.S. Circuit Court of Appeals held on July 14. USA v. Zabriskie, No. 02-4228. Dean Zabriskie and his son were tried for several crimes. On the fifth day of deliberations, all of the jurors except for Melvin Graddy sent a note to the Utah federal judge complaining that one juror would neither deliberate nor change his position. The judge had an ex parte talk with Graddy, over the Zabriskies’ objection. She reminded him of his duty to deliberate with other jurors with a view to reaching an agreement. Graddy agreed to follow the instructions. Hours after deliberations resumed, the jury convicted the Zabriskies on some counts. The court denied their motions for a new trial due to an improper Allen charge-a jury charge named after Allen v. U.S., 164 U.S. 492 (1896) that encourages jurors to reach a unanimous verdict. The 10th Circuit reversed, holding that while it was appropriate for the judge to interview Graddy separately as part of her inquiry, “jurors in the minority position” shouldn’t “be coerced into yielding to the majority.” This is precisely what happens if “an Allen charge is delivered only to dissenting jurors and especially when it is done in private.” Since “the jury reached a verdict that very day contrary to prior persistent indications of intractable deadlock,” the “apparent anomaly” raises serious questions as to the independence of the jury and the propriety of the convictions. Full text of the decision GOVERNMENT FTCA suit not possible if U.S. uses contractor The Federal Tort Claims Act (FTCA) doesn’t allow suits against the U.S. government arising from alleged negligence of air traffic controllers employed by the government’s independent contractor, the 7th U.S. Circuit Court of Appeals held on July 13. Alinsky v. USA, No. 04-2877. Two planes crashed, killing all on board, while receiving air traffic services from Meigs Field Air Traffic Control Tower, operated by a private contractor to the Federal Aviation Administration. The estates of the deceased sued the federal government pursuant to the Federal Tort Claim Act. The FTCA provides a waiver of the federal government’s sovereign immunity for claims for death caused by the negligence of any employee of the government acting within the scope of his employment. The FTCA’s definition of employee includes federal agency employees but excludes contractors. The plaintiffs alleged that the government has a nondelegable duty to provide air traffic control services and was thus responsible for the negligence of the controller. An Illinois federal court granted the U.S. summary judgment on some claims and ruled in its favor on others after trial. The 7th Circuit affirmed, saying that the district court lacked jurisdiction to consider claims against the U.S. based on the controller’s negligence, because the controller wasn’t a government employee. The court also rejected the argument that the FAA lacked authority to contract with private organizations to provide air traffic control services. Full text of the decision INTELLECTUAL PROPERTY Wrong to bar trademark claim based on laches In a dispute between a group of Native Americans and the National Football League’s Washington Redskins over trademarks related to the team’s name, a district court erred in rejecting the claim of one of the plaintiffs based on laches because the court had failed to consider the plaintiff’s youth, the U.S. Circuit Court for the District of Columbia held on July 15. Pro-Football Inc. v. Harjo, No. 03-7162. In 1992, a group of Native Americans petitioned the Trademark Trial and Appeal Board (TTAB) to cancel the registration of various trademarks of the Washington Redskins, arguing that the term “redskin” and its variants disparaged them when the marks were registered, making the marks unregisterable under 15 U.S.C. 1052. Pro-Football Inc., owner of the Redskins’ marks, countered that the Native Americans’ delay in bringing their action barred their claim under the doctrine of laches. The TTAB rejected Pro-Football’s argument and canceled the marks. Pro-Football sued, challenging the TTAB’s ruling. A D.C. federal court granted summary judgment to Pro-Football, holding that laches barred the Native Americans’ claim. Reversing and remanding, the D.C. Circuit held that the district court erred in considering laches based on the 1967 registration of the first mark because one of the plaintiffs, Mateo Romero, was a 1-year-old at the time. Remanding, the court said, “Here, Romero has brought his own claim, and there is no reason why the laches of others should be imputed to him. In accordance with the context-specific approach required by equity, the district court should have measured both his delay and the resulting prejudice to Pro-Football based on the period between his attainment of majority and the filing of the 1992 cancellation petition.” Full text of the decision TORTS Abused children can’t sue parents’ church A child’s parent’s church does not owe a common law duty to the child to report actual or suspected abuse of that child, the New Hampshire Supreme Court ruled on July 15. Berry v. Watchtower Bible and Tract Society of New York Inc., No. 2003-779. When Sara Poisson told the elders of her Jehovah’s Witness congregation of 10 to 12 specific incidents of abuse by her husband against the couple’s children, the elders advised her to keep things within the church community. Soon afterward, Poisson’s husband, Paul Berry, was convicted of molesting one of the girls. The daughters later sued their parents’ church, as well as the regional Jehovah’s Witness organization, for negligence in failing to report the abuse under a state statute, and for breaching a common law duty to report the abuse. The trial court granted the church’s summary judgment, finding that the conduct alleged by the girls was in reality a “clerical malpractice” claim that was barred by the First Amendment’s establishment clause. The New Hampshire Supreme Court affirmed. The statute requiring individuals to report suspected child abuse does not create a civil remedy for failure to comply. There is no common law duty because the church’s relationship with the girls’ parents doesn’t create a special relationship between the congregation and the girls. Full text of the decision Risk-contribution applies to lead-pigment maker The risk-contribution theory extends to lead-pigment manufacturer defendants in a lead poisoning case, the Wisconsin Supreme Court held on July 15. Thomas v. Mallett, No. 2003-AP1528. J. Steven Thomas claimed that he sustained lead poisoning by ingesting lead paint at two different houses he lived in during the early 1990s. He sued the lead-pigment manufacturers alleging injury from white lead carbonate pigment, but was unable to identify the specific pigment manufacturer that produced the pigment he ingested. A lower court granted summary judgment to the lead-pigment manufacturers, holding that because Thomas had a remedy against his landlords for their negligence, there was no need to extend to the manufacturers the risk-contribution theory announced in Collins v. Eli Lilly Co., 116 Wis. 2d 166 (1984). In Collins, a plaintiff was injured by DES her mother had ingested decades earlier but could not prove its source. The court held that such plaintiffs can recover by proving that the mother took DES, that DES caused the injuries and that the defendant had produced or marketed the type of DES taken by the mother. The Wisconsin Supreme Court affirmed in part and reversed in part, ruling that Article I, � 9 of the Wisconsin Constitution does not insulate wrongdoers from liability simply because recovery has been obtained from an altogether different wrongdoer for an altogether different wrong. The white lead carbonate claims at issue were factually similar enough to Collins to warrant extension of the risk-contribution theory. Full text of the decision

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