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CIVIL PRACTICE Arbitration methods do not need judicial review Judicial intervention is inappropriate to determine minor issues such as the number of arbitrators in an arbitration proceeding, the 4th U.S. Circuit Court of Appeals held on Jan. 3. Dockser v. Schwartzberg, No. 05-1273. Martin Schwartzberg executed a settlement agreement with William Dockser and others to settle a dispute over a real estate partnership. The agreement contained a clause providing for arbitration of disputes. Believing Dockser had violated the agreement, Schwartzberg sought arbitration from the American Arbitration Association, and requested a panel of three arbitrators. Dockser and his associates sued in a Maryland federal district court, arguing that a three-arbitrator panel would violate the settlement agreement. The court dismissed the complaint. Affirming, the 4th Circuit held that it would be inappropriate for the courts to intervene to decide “minor issues of this type.” The court said, “We conclude that judicial intervention on this issue would be inappropriate. The parties have agreed that arbitrator selection should follow the rules and procedures of the American Arbitration Association, and the number of arbitrators is a procedural question to be answered exclusively in that forum. The [Federal Arbitration Act] promotes the efficient resolution of disputes through arbitration, and this goal would be undermined if we were to allow arbitration proceedings to be stalled or nullified by ancillary litigation on minor issues of this type.”   Full text of the decision CONSTITUTIONAL LAW Florida school voucher plan is unconstitutional Florida’s Opportunity Scholarship Program, a school “voucher” program enabling parents to use state funds to pay for the education of their children in private schools, violates the Florida Constitution, the Florida Supreme Court held on Jan. 5. Bush v. Holmes, No. SC04-2323. The state of Florida established a “school voucher” system, known as the Opportunity Scholarship Program (OSP), enabling parents whose children attended underperforming public schools to receive state funds to send their children to private schools. Parents of elementary and secondary school children and several public interest organizations sued, alleging that the program violated the Florida and U.S. constitutions. After an initial remand, a trial court held that OSP was unconstitutional. An intermediate appellate court affirmed. Affirming, the Florida Supreme Court held that OSP violated Fla. Const. art. IX � 1(a). The court said, “The OSP contravenes this constitutional provision because it allows some children to receive a publicly funded education through an alternative system of private schools that are not subject to the uniformity requirements of the public school system. The diversion of money not only reduces public funds for a public education but also uses public funds to provide an alternative education in private schools that are not subject to the uniformity requirements for public schools.” Waste-disposal rule is no commerce clause breach A regulation mandating that solid waste must be disposed of at either in-district or out-of-state landfills doesn’t breach the U.S. Constitution’s commerce clause, the 8th U.S. Circuit Court of Appeals held on Jan. 5. IESI AR Corp. v. Northwest Arkansas Regional Solid Waste Management District, No. 05-1299. The Northwest Arkansas Regional Solid Waste Management District regulates solid waste management in six counties. Under regulations promulgated by the district, a formal written request must be made before solid waste is transferred out of the district but not out of the state. The district has only one landfill. Arkansas-based IESI AR Corp., which operates a landfill in a county outside of the district, bought an in-district transfer station that takes waste from in-district haulers and transfers it to its out-of-district landfill. Although IESI had authorization to transport waste outside the district, the district told two in-district haulers that they must stop using IESI’s landfill unless they applied for a formal written request. Neither did so, and, instead, began using the in-district landfill. IESI sued the district, claiming that the regulations violated the commerce clause. An Arkansas federal court granted the district’s motion for summary judgment. The 8th Circuit affirmed. The dormant commerce clause prevents states from regulating interstate commerce. The court concluded that the regulation does not discriminate against interstate commerce because it does not favor in-state economic interests over out-of-state interests, and any burden placed on interstate commerce is not clearly excessive in relation to putative local benefits. Lease doesn’t diminish eminent domain power The mere fact that a condemning authority chooses to exercise its power of eminent domain rather than negotiate with a landowner does not make this taking an abuse of the authority’s condemnation power, the Minnesota Supreme Court ruled on Jan. 5. Lundell v. Cooperative Power Association, No. A04-1045. Cooperative Power Association (CPA) and Great River Energy (GRE) are cooperative associations that sell and distribute electricity and possess the power of eminent domain under Minn. Stat. � 308A.201, subdiv. 13 (2004). In 1980, CPA entered into a land-lease agreement with Howard and Luella McKinley to use 4.5 acres of their land to house a telecommunications tower for a rent of $450 per year. In 1999, CPA entered into a management services agreement with GRE, giving GRE the right to act on behalf of CPA. CPA paid rent but no property taxes. In 2001, the McKinleys sold the land to Danny and Mary Lundell, who asked CPA to pay property taxes and suggested a rent increase. GRE said it would be willing to pay a higher rent, but not the property tax. Threatened with eviction, GRE decided to take ownership of the tower site through eminent domain. CPA petitioned a district court to take title and possession of the site by the quick-take procedure under Minn. Stat. � 117.042. The court granted CPA’s petition, with the court-appointed commissioners concluding that the fair market compensation for the taking was $154,005, which CPA paid to the Lundells. An intermediate appellate court affirmed. The Minnesota Supreme Court affirmed. Before condemning private land, a condemning authority, such as CPA, must determine that there is a public use for the land and that the taking is reasonably necessary for the furtherance of that public use. The public purpose of this taking was to facilitate the transmission and distribution of electrical power. Although CPA already had use and possession of the property under the lease, the court held that it did not need to show an additional determination of public necessity in order to increase its property interest from a lease interest to a fee interest. The determination in either case is the same, and the existence of the lease does not prevent CPA from exercising its eminent domain rights. Graffiti-painted clothes vendors need license New York City should not have been enjoined from enforcing the General Vendors Law against merchants selling clothing painted with graffiti because application of the law to the merchants does not violate their First Amendment rights, the 2d U.S. Circuit Court of Appeals ruled on Jan. 5. Mastrovincenzo v. City of New York, No. 04-2264. Unlicensed street vendors of graffiti-painted clothing challenged application of the General Vendors Law, which prohibits the selling of nonfood goods and services on city sidewalks without a license. They claimed that the 2d Circuit’s 1997 ruling in Bery v. City of New York-that the vendors’ law breaches the First Amendment rights of streetside purveyors of “expressive merchandise” such as paintings, photographs, prints and sculptures-applied to sellers of graffiti-painted clothing. A New York federal court granted an injunction against the city. The 2d Circuit reversed, holding that, according to Bery, only certain items-”paintings, photographs, prints and sculptures”-automatically trigger First Amendment review because the sale of these items “always communicate[s] some idea or concept” to viewers. Though graffiti-painted goods do serve a predominantly expressive purpose, and though their sale is protected by the First Amendment, that doesn’t mean that the city’s licensing requirement violates the vendors’ First Amendment rights. The law is a valid content-neutral restriction that is narrowly tailored to achieve the governmental interest of reducing urban congestion. REAL PROPERTY Parties’ intent is key to land-restriction analysis Courts should interpret restrictive covenants so as to give effect to the intention of its parties as determined from the language of the document, the Arizona Supreme Court held on Jan. 5. Powell v. Washburn, No. CV-05-0186-PR. Thomas Washburn recorded a Declaration of Covenants, Conditions and Restrictions (CC&Rs) for an aviation-related planned community-an airpark. A zoning amendment made recreational vehicles (RV) acceptable in a manufactured home subdivision. Some airpark property owners, including Powell, sued, seeking an injunction against the use of RVs as single-family residences within the airpark. The trial court granted Powell summary judgment, finding that the CC&Rs did not permit the use of RVs as residences. An intermediate appellate court reversed. An en banc Arizona Supreme Court reversed. Some Arizona dicta hold that when a restrictive covenant is ambiguous, courts must strictly construe its terms to favor the free use of land. Here, the covenant wasn’t ambiguous, the court said, holding the Restatement to be consistent with Arizona’s “cardinal principle” of enforcing the parties’ intent when interpreting restrictive covenants, and with “the contemporary judicial trend of recognizing the benefits of restrictive covenants.” The court said that though the CC&Rs neither expressly prohibit nor permit RVs as residences, the plain intent of the restrictions was to limit residences in the airpark to certain enumerated home types, not including RVs. SCHOOLS AND EDUCATION Pro se IDEA suit can’t be brought on child’s behalf A parent may bring an Individuals with Disabilities Education Act (IDEA) action on her own behalf, but may not proceed pro se in an IDEA action on her child’s behalf, the 7th U.S. Circuit Court of Appeals held on Jan. 4. Mosely v. Bd. of Ed. of Chicago, No. 03-4074. Lillian Mosely disagreed with the Chicago Public Schools’ treatment of her son, Melvin, who was in a special education class, and she sought to get more involved in his education and in the general practices. She brought suit under IDEA, claiming that the Board of Education of the City of Chicago retaliated against her and against Melvin for her involvement. She also sued separately under 42 U.S.C. 1983, asserting that her own civil rights had been violated by the board’s retaliatory acts. An Illinois federal court dismissed both suits. The 7th Circuit reversed, finding the dismissals to be premature. The court held that the IDEA confers different rights on children and parents: both substantive and procedural rights for the child and procedural rights only for the parents. Parents have enough of a procedural interest to entitle Mosely to sue on her own behalf for the IDEA violations she alleges. She cannot, however, represent Melvin as long as she remains pro se.

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