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CIVIL RIGHTS Federal law not triggered by city’s use of U.S. grant A governmental authority’s use of $5 million in federal block grants to construct a shopping center does not trigger provisions of the National Historic Pres�ervation Act, the 2d U.S. Circuit Court of Appeals ruled on Nov. 22 in a matter of first impression. Business and Residents Alliance of East Harlem v. Quinones, No. 04-4493. Tiago Holdings LLC proposed the project in New York City’s East Harlem neighborhood, part of the area included in the New York City Empowerment Zone and the Upper Manhattan Empowerment Zone Development Corp. A state historic-impact study ruled in favor of the project, finding that the Washburn Wire Factory (built in the 1900s, but unused since 1976), which would be demolished, had not been placed on the National Register for historic sites. Tiago received some funding from the two empowerment zones. When demolition of the factory began, local residents sued to require review under federal historic-impact standards, noting that the funds the empowerment zones gave to Tiago came from federal block grants for economic development of distressed areas. The district court denied the plaintiffs’ request for a preliminary injunction. The 2d Circuit affirmed. Because all approval and funding decisions on the project are made at the state and local level, the federal statute is not triggered. That act is triggered only when a federal agency has jurisdiction of licensing authority over a project. Full text of the decision CRIMINAL PRACTICE ‘Crawford’ not applicable to revocation hearings The U.S. Supreme Court’s prohibition against use of out-of-court testimony in certain circumstances does not apply to supervised-release revocation hearings, the 1st U.S. Circuit Court of Appeals held on Nov. 23. USA v. Rondeau, No. 05-1054. Corey Rondeau pleaded guilty to drug-related charges and served his prison sentence. During his subsequent five-year supervised-release period, he was arrested again and the U.S. Probation Office sought to revoke his release. Two individuals gave written statements in support of the revocation, but did not testify at the hearing. A Massachusetts federal court entered final judgment revoking Rondeau’s supervised release. The 1st Circuit affirmed. It noted that, in Crawford v. Washington, 541 U.S. 36 (2004), the high court held that in a criminal prosecution the Sixth Amendment forbids introduction of out-of-court testimony unless the witness is unavailable and the defendant has had an opportunity to cross-examine. However, Crawford does not apply to supervised-release revocation proceedings because it involves the confrontation clause, which pertains to “criminal prosecutions.” EMPLOYMENT Work restroom use isn’t job duty under ERISA Using the restroom during the work day is not within the scope of an employee’s duties for Employee Retirement Income Security Act purposes, the 7th U.S. Circuit Court of Appeals held on Nov. 21. Sisto v. Ameritech Sickness & Accident Disability Benefit Plan, No. 03-4126. Elvira Sisto, a customer service representative for Ameritech Corp., was injured when she slipped and fell in the company’s restroom after turning on her computer to start her day. She sought benefits under the Ameritech Sickness & Accident Disability Benefit Plan. The plan awarded her full sickness benefits but denied accident benefits on the ground that her accident did not occur during the course of her employment. Sisto’s suit was removed to federal court, because it involved denial of benefits under ERISA. An Illinois federal court granted summary judgment to the plan. The 7th Circuit affirmed, holding that the plan promises accident benefits only when the injury has resulted solely from an accident “during and in direct connection with the performance of duties” to which the employee is assigned. Sisto’s duties of sitting at a desk, working on computers and answering the phone did not include a duty to use the restroom. INTERNATIONAL LAW No sovereign immunity for Air France in tort suit Despite being majority-owned by the French government, Air France was not immune from suit under the Foreign Sovereign Immunities Act because a personal injury claim fell under the law’s commercial activity exception, the U.S. Circuit Court for the District of Columbia held on Nov. 22. Kirkham v. Soci�t� Air France, No. 04-7209. Elisabeth Kirkham bought an airline ticket from Air France for travel from the United States to Bastia, France. She sustained an injury while on a layover at d’Orly Airport. She sued Air France’s parent company, Soci�t� Air France, in a D.C. federal court, but Soci�t� Air France claimed sovereign immunity under the Foreign Sovereign Immunities Act because the airline was majority-owned by the government of France. The court ruled that Air France was not immune because the purchase of the airline ticket triggered the act’s commercial activity exception. Soci�t� Air France appealed, arguing the commercial activity exception did not apply because Kirkham’s �alleged injury occurred in the public �airport, not on her commercial flight. Affirming, the D.C. Circuit agreed that the purchase of the ticket placed the matter under the commercial activity exception. The court said, “Because Air France concedes the ticket sale constituted a commercial activity in the United States, and because Kirkham must establish that sale in order to prevail on the merits, the commercial activity exception applies.” LEGAL PROFESSION Lawyer can advise client against internal inquiry An attorney didn’t commit malpractice by advising a client not to participate in an internal investigation because of the possibility that her statements could be used in subsequent criminal proceedings, the Colorado Supreme Court held on Nov. 21. Hopp & Flesch LLC v. Backstreet, No. 04SC697. Raquel Backstreet, a nurse in the Arapahoe County Sheriff’s Department, made a mistake in administering medication to an inmate. The inmate sued the county and Backstreet for medical malpractice. The state filed felony criminal charges against Backstreet, who was suspended without pay. Backstreet hired an attorney, Kevin Flesch, to represent her. The sheriff’s office wanted Backstreet to participate in an internal investigation, sending her a written advisement that any information obtained could not be used against her in the criminal investigation, but that failure to participate could lead to her termination. Upon the advice of Flesch, Backstreet declined to cooperate. The criminal charges were dismissed against Backstreet, but she was recommended for termination due to her refusal to cooperate with the internal investigation. Although she was eventually reinstated with back pay, Backstreet was required to forfeit 30 days of back pay. She sued Flesch for professional negligence. The trial court dismissed the claims on summary judgment, finding no legal malpractice. An intermediate appellate court said that the issue was inappropriate for resolution on summary judgment. The Colorado Supreme Court reversed. The Fifth Amendment privilege against self-incrimination is automatically invoked when a public employee is unconstitutionally coerced into making a statement under threat of job loss. In this case, it is unclear whether the sheriff’s advisement was coercive enough to trigger the protection of the Fifth Amendment. Given these circumstances, Flesch acted within the standard of care owed to his client in choosing to protect her against possible felony charges. Debt mediation is not proper practice of law The business of a debt mediation firm consisting of nonattorneys who represented debtors in collection matters constituted unauthorized practice of law, the Georgia Supreme Court held on Nov. 21. In re UPL AdvisoryOpinion 2003-1, No. S03U1732. A member of the State Bar of Georgia requested an advisory opinion on whether the activities of a hypothetical “non-attorney mediation firm” constituted the unauthorized practice of law. The firm would review court records of civil debt-collection suits and contact the debtors, offering to mediate and establish payment plans with creditors. The Georgia bar’s Standing Committee on the Unlicensed Practice of Law ruled that the activities constituted unauthorized practice of law, and the Georgia Supreme Court reviewed. Approving the advisory opinion of the committee, the Georgia Supreme Court said, “[T]he company is required to exercise legal judgment to assess the validity and value of a creditor’s claim, evaluate procedural and evidentiary issues which may affect the outcome of the litigation, and advise clients as to their legal rights and obligations with regard to the debt and reasonableness of a settlement offer. Thus…the company and non-lawyer representing the company are engaging in the unauthorized practice of law.” SCHOOLS AND EDUCATION Texas school financing system unconstitutional The Texas state system for funding its schools amounts to an unconstitutional imposition of a property tax, a divided Texas Supreme Court ruled on Nov. 22. Neeley v. West Orange-Cove Consolidated Independent School District, No. 04-1144. The Texas public school system, which covers 4.3 million students in 1,031 districts, relies solely on local property taxes for its funding. Various formulae have been developed over the years to even out the disparity between land-rich and land-poor districts, as well as for economic disparities. Two groups of school districts, representing half of the state’s public-school children, challenged the finance system, saying: (1) it violated the Texas constitutional provision against ad valorem taxes; (2) it violated another Texas constitutional provision requiring efficient (or adequate) funding for statewide school operations and facilities; and (3) it violated the same provision’s requirement that the public schools supply a “general diffusion of knowledge.” The trial court agreed with the schools on (1) and (3), but not on (2). An injunction stayed the ruling while the Legislature tried but failed in one regular and two special sessions to pass compromise legislation on funding. The Texas Supreme Court affirmed the ruling on (1), finding the scheme to be unconstitutional because it was a de facto property tax. The high court affirmed also on (2), but reversed on (3). The court also remanded for consideration of attorney fees. TORTS Theater staff don’t need to aid sick patron to seat A theater owner does not owe a duty to escort a patron with an obvious infirmity to his seat in the dark, a divided New York Court of Appeals ruled on Nov. 22. Gilson v. Metropolitan Opera, No. 160.As the house lights dimmed at the end of intermission at a performance at the Metropolitan Opera, Estelle Neeley got up from her aisle seat to allow Donald Taitt and his wife to get to their seats next to her. Taitt suffers from Parkinson’s disease and walks unsteadily. As he moved past Neeley, he lost his balance and fell onto her, causing Neeley to fall down four steps into the balcony railing and injure herself. She sued the Met for premises liability. The trial court refused to grant the Met summary judgment. An intermediate appellate court reversed, ruling that the Met did not breach any recognized duty to Neeley. The New York high court affirmed. The duty Neeley would impose on theater owners would place an undue burden on them, going beyond the limits of the general duty they have to maintain their premises in a reasonably safe condition. Utility does not have to notify of de-energizing An electric company has no duty to tell emergency workers at an accident scene that it has de-energized power lines there to make a quick rescue safer, the Missouri Supreme Court held on Nov. 22. Hoffman v. Union Electric Co., No. SC86716. A car in which Tiffany Hoffman was riding struck an electric pole owned by Union Electric Co. and caught fire after an energized power line fell on it. In response, less than a minute later, Union Electric’s monitor locked open the electrical circuits so no current flowed through them. When emergency personnel arrived at the scene, they did not immediately extricate Hoffman because the line was looped over the car’s undercarriage and they thought it dangerous. About 25 minutes later, a Union Electric supervisor arrived and removed the power line from the car with a fiberglass stick. Emergency personnel then removed Hoffman from the car, but she later died. Her parents filed a wrongful death suit against Union Electric, claiming that they had negligently failed to advise the emergency personnel promptly that it was safe to give Hoffman medical care at the scene. The trial court granted summary judgment to Union Electric. The Missouri Supreme Court affirmed, holding that because Union Electric had no duty to inform emergency personnel that the power line was de-energized, there was no negligence. The court said that federal regulations require employees to treat de-energized power lines as energized parts, prohibiting them from working on exposed de-energized parts until a qualified worker has tested them to verify that they are de-energized.

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