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ADR Defense must show need for mediator’s testimony A criminal defendant must prove that his need for a mediator’s testimony outweighs the general interest in the confidentiality of mediation, the New Jersey Supreme Court ruled on July 28. New Jersey v. Williams, No. A-61-04. Pursuant to a harassment complaint sworn out by Carl Williams’ brother-in-law in municipal court against Williams, the municipal court appointed a mediator. When mediation failed, a grand jury indicted Williams for aggravated assault and possession of a weapon. The case went to trial. Williams said he acted in self-defense. To establish his defense, Williams asked the mediator to testify about his brother-in-law’s statements during mediation that he was carrying a shovel when Williams went to his car to get a machete. The trial court denied the request and Williams was convicted. An intermediate appellate court affirmed. The New Jersey Supreme Court affirmed. Relying on principles taken from the Uniform Mediation Act, which was not in effect at the time of Williams’ trial, the court held that the confidentiality of mediation should be protected unless a defendant can show a need for evidence that substantially outweighs the need for confidentiality, and where the evidence is shown to be otherwise unavailable. Williams failed to establish either factor. Full text of the decision CIVIL PRACTICE Suits against judge aren’t ground for his recusal A criminal defendant’s prior civil suits against the judge in his case didn’t require the judge to disqualify himself under 28 U.S.C. 455(a), the 7th U.S. Circuit Court of Appeals held on July 29 in a case of first impression. In re Taylor, No. 05-2357. Terry Taylor was a criminal defendant in a case before Philip Reinhard, an Illinois federal judge. Prior to the criminal matter, Taylor had filed multiple civil suits against Reinhard and others, often making spectacular claims, including an allegation that an eye care center had given him contacts to limit his vision so he would be unable to witness parts of an alleged police conspiracy. Taylor also accused Reinhard of being part of a judicial conspiracy against him. Reinhard dismissed Taylor’s civil suits as frivolous under 28 U.S.C. 1915(g). In the criminal action, Taylor moved to disqualify Reinhard pursuant to 28 U.S.C. 455(a). Reinhard denied the motion, and Taylor petitioned for a writ of mandamus. Denying the petition, the 7th Circuit held that Reinhard was not required to disqualify himself. Although the court conceded that Taylor had not filed his civil suits in an attempt to disqualify Reinhard from the criminal matter, a key consideration under Section 455(a), it nevertheless held that disqualification was not required because the suits were frivolous. The court said, “[a] well-informed observer, one who knew the details of the prior litigation, would not believe that the civil cases required recusal,” adding, “The claims against Judge Reinhard are one small part of a frivolous litigation pattern. Taylor, who apparently was not mentally stable when he filed these suits, may have sincerely believed that all local, state, and federal officials . . . were in a conspiracy against him. But this belief does not make his claims meritorious.” Full text of the decision CONSTITUTIONAL LAW Caricature of bishop isn’t First Amendment breach The municipally supported Washburn University did not violate the establishment clause in displaying a caricature of a Catholic bishop, the 10th U.S. Circuit Court of Appeals held on July 28. O’Connor v. Washburn University, No. 04-3103. Washburn University, a municipally supported school in Topeka, Kan., sponsored an art exhibition, which included a piece entitled, Holier Than Thou, a bronze depiction of a Roman Catholic priest with a contorted face and a miter that, some argued, resembled a phallus. Thomas O’Connor, a Catholic Washburn University professor, and Andrew Strobl, a Catholic student at the school, sued under 42 U.S.C. 1983, claiming that the university had violated the establishment clause of the U.S. Constitution by displaying the work, thus advocating an anti-Catholic message. A federal district court rejected the challenge. Affirming in part and vacating in part due to mootness, the 10th Circuit held that the university had not violated the establishment clause, combining the traditional Lemon establishment clause test with an analysis based on the U.S. Supreme Court’s recent decisions in McCreary County v. ACLU and Van Orden v. Perry. The court said, “Ultimately, this court need not determine the proper interpretation of Holier Than Thou. Regardless of whether the statue sends an anti-Catholic message, any reasonable observer viewing it in context would understand the university had not endorsed that message.” Full text of the decision CRIMINAL PRACTICE Court should suppress illegal-search evidence A trial court erred in failing to suppress evidence of 5 pounds of marijuana seized in a search after a traffic stop because the police detention and search violated both the United States and Wyoming constitutions, the Wyoming Supreme Court held on July 28. O’Boyle v. Wyoming, No. 2005 WY 83. A Wyoming state trooper stopped Kevin O’Boyle for driving 79 mph in a 75 mph zone. During the course of the initial traffic stop, the trooper interrogated O’Boyle, asking more than 30 questions, many not relating to O’Boyle’s travel plans. After issuing O’Boyle a warning and telling him he could leave, the trooper stopped O’Boyle as he walked in front of the trooper’s vehicle, and asked him another extensive series of questions, after which the trooper asked O’Boyle for permission to search his car. O’Boyle consented, and the trooper found 5 pounds of marijuana. At trial, O’Boyle moved to suppress the marijuana evidence, arguing that the detention and search were illegal. After initially suppressing the evidence, a trial court reversed itself after the state filed a motion for reconsideration, holding that recent 10th Circuit opinions held against such suppression. O’Boyle appealed. Reversing, the Wyoming Supreme Court ruled that the detention, interrogation and search violated the Wyoming Constitution and the Fourth Amendment to the U.S. Constitution. The court said, “Mr. O’Boyle’s consent to the vehicle search was not sufficiently voluntary to purge the taint of the first unconstitutional detention. Evidence obtained as a result of the search was fruit of the poisonous tree.” Full text of the decision IMMIGRATION LAW Limited asylum eligibility over forced birth control The parents or in-laws of individuals persecuted by a country’s coercive family-planning policies are not per se eligible for asylum based on the same policies, the 2d U.S. Circuit Court of Appeals ruled on July 26. Yuan v. U.S. Department of Justice, nos. 02-4632 and -4635. A Chinese couple were targeted for removal after overstaying their visas. They sought asylum under the U.N. Convention Against Torture, saying that both of their sons’ wives had suffered the ill effects of China’s coercive family-planning measures: one daughter-in-law had an intrauterine device implanted in her and was issued birth control pills against her will; another daughter-in-law underwent an involuntary abortion. The couple said they were targeted for their daughters-in-law’s resistance to government policy. Their home was ransacked and the father-in-law was fired from his job. The immigration judge denied asylum, finding that the couple did not have a well-founded fear of future persecution since one of their daughters-in-law now lived in the United States, and at least 12 years had elapsed since the incidents took place. The Board of Immigration Appeals affirmed. The 2d Circuit affirmed. Though 8 U.S.C. 1101(a)(42) only applies to individuals subject to the coercive family-planning policies, that statute has been interpreted to make spouses per se eligible, too. The court ruled that neither parents nor parents-in-law are per se eligible, but a grant of asylum is possible under the statute if they can show that they offered other resistance to the family-planning policies. The parents-in-law did not meet their burden in this case. Full text of the decision INTERNATIONAL LAW Saudis immune from payroll-deductions suit The government of Saudi Arabia was immune from a suit by a U.S. citizen who worked in Saudi Arabia and claimed that the Saudi government had unlawfully refused to return his payroll deductions because the worker’s suit did not fall under exceptions to the Foreign Sovereign Immunities Act (FSIA), the U.S. Circuit Court for the District of Columbia held on July 29. Peterson v. Royal Kingdom of Saudi Arabia, No. 04-7159. John Peterson worked in Saudi Arabia for various engineering companies from 1979 to 1990. Under Saudi law, he was required to contribute part of his salary to the kingdom’s General Organization of Social Insurance (GOSI), which provided retirement benefits for workers. However, in 1987, Saudia Arabia excluded foreign workers from receiving GOSI retirement benefits. Although the kingdom made refund payments to Peterson, he sued in U.S. district court, arguing that he was entitled to additional refunds, including GOSI contributions made by his employers. Peterson also argued that the U.S. court had jurisdiction because Saudi Arabia’s actions fell under the “expropriation” and “commercial activities” exceptions to the FSIA. A district court dismissed Peterson’s suit for lack of jurisdiction. Affirming, the D.C. Circuit held that Peterson’s claims did not fall under any of the exceptions to FSIA. On the issue of FSIA’s expropriation exception, the court noted that contributions were not placed in an individual account for Peterson and that the kingdom could have canceled the program for all workers. The court said, “Taken together, these factors rebut Peterson’s assertion that his and his employers’ contributions to GOSI constitute ‘rights in property’ of which he was deprived in derogation of international law.” Full text of the decision MEDIA LAW Court reinstates libel suit against New York Times A federal district court erred in dismissing a libel suit against The New York Times Co. stemming from a series of articles written by columnist Nicholas Kristof about the 2001 anthrax attacks, because the columns, taken together, were capable of defamatory meaning under Virginia law, the 4th U.S. Circuit Court of Appeals held on July 28. Hatfill v. New York Times Co., No. 04-2561. After anthrax-laced letters resulted in multiple deaths in the fall of 2001, New York Times columnist Nicholas Kristof wrote a series of articles criticizing the FBI for not conducting a more aggressive investigation of a subject Kristof called “Mr. Z.” Kristof eventually identified Mr. Z as Steven Hatfill, a germ-warfare specialist and former U.S. Army scientist. Hatfill sued the Times’ parent company and Kristof, alleging defamation and intentional infliction of emotional distress under Virginia law. After Hatfill dismissed Kristof on jurisdictional grounds, the court dismissed the action against the Times under Rule 12(b)(6), holding, inter alia, that the articles could not reasonably be read as accusing Hatfill of being responsible for the attacks. Reversing and remanding, the 4th Circuit held that Kristof’s columns were capable of defamatory meaning under Virginia law. Comparing Kristof’s columns with previous holdings, the court said, “For purposes of Rule 12(b)(6), the question is simply whether Kristof’s columns are capable of defamatory meaning under Virginia law, i.e., whether they imputed to Hatfill the commission of a crime involving moral turpitude. They did.” Full text of the decision WORKERS’ COMPENSATION Claim reopening doesn’t permit review of injury Under Nevada law, a prior determination that an injury was industrially related may not be reconsidered when determining whether to reopen a workers’ compensation claim, the Nevada Supreme Court held on July 28. Day v. Washoe County School District, No. 39884. Between 1986 and 1995, Alfred Day suffered several industrial injuries that involved his neck, back and hips. By 1995, he was diagnosed with degenerative osteoarthritis in both hips. Day’s orthopedist requested the reopening of one of his old industrial insurance claims, and recommended bilateral hip replacement surgery. CDS CompFirst, the third-party administrator, approved surgeries for each hip. Day had right-hip replacement surgery in 1995 but did not immediately have surgery on his left hip. In 1997, CDS closed Day’s consolidated claim and granted him a 21% permanent partial disability rating, declaring that Day’s hip condition was wholly the result of his industrial injuries. In 1999, CDS denied Day’s request to reopen his claim for surgery on his left hip. An appeals officer upheld the denial, stating that the medical evidence did not support the conclusion that the osteoarthritis was industrially related. The trial court denied Day’s petition for judicial review. The Nevada Supreme Court reversed the district court’s order denying the petition for judicial review and remanded the matter, instructing the court to direct the appeals officer to conduct a new hearing. In Nev. Rev. Stat. � 616C.390, a criterion for reopening an industrial insurance claim is if “the primary cause of change of circumstances is the injury for which the claim was originally made.” The statute does not allow the reconsideration of a prior decision that an injury was industrial in nature. The purpose of the appeals officer’s new hearing would be solely to determine whether the “primary cause” of the worsening of Day’s left-hip osteoarthritis was “the injury for which the claim was originally made.” Full text of the decision

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