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ADMINISTRATIVE LAW Suspended-license crime applies to license holders A person may not be convicted of driving with a suspended or revoked license under Montana law without having possessed in recent years a valid Montana driver’s license or statutory licensure exemption, the Montana Supreme Court held on Jan. 31. City of Billings v. Gonzales, No. 05-259. At various times in 2003 and 2004, law enforcement officers stopped five different drivers for traffic violations and cited each of them for driving with a suspended or revoked license under Mont. Code Ann. � 61-5-212. At the time of the citations, none of the drivers possessed a valid Montana driver’s license. The Billings Municipal Court denied the drivers’ motions to dismiss. The drivers entered pleas of nolo contendere and moved to consolidate their cases on appeal. The state district court consolidated the cases and affirmed the municipal court’s decision. The Montana Supreme Court reversed. Section 61-5-212 provides that a person “commits the offense of driving a motor vehicle during a suspension or revocation period if the person drives . . . a motor vehicle on any public highway of this state at a time when the person’s privilege to do so is suspended or revoked in this state or any other state.” The plain language of the statute requires that a person possess a privilege to drive granted by law either by a license or the privilege to do so without a license before the privilege can be suspended or revoked. Absent such a privilege, the court found that the state cannot convict a person under Section 61-5-212, but could still charge the drivers with the separate offense of driving without a license.   Full text of the decision Assigned authority gives deliberative-process right In litigation involving a government agency, a person who has been delegated with authority by the agency head may invoke the deliberative-process privilege, the U.S. Court of Appeals for the Federal Circuit ruled on Feb. 3 in an issue of first impression. Marriott Int’l Resorts L.P. v. U.S., No. 05-5046. Marriott International Resorts requested documents from the Internal Revenue Service related to its dispute over the IRS’ treatment of so-called short-sale transactions. The IRS, through its assistant chief counsel, produced some documents but withheld others, citing executive privilege. Upon a challenge by Marriott, the U.S. Court of Federal Claims ruled that the agency’s invocation of the privilege was procedurally flawed because only the head of the IRS could invoke such a privilege, and then only after becoming personally familiar with the documents and deciding that their release would adversely affect the agency’s vital functions. The Federal Circuit reversed. The deliberative-process privilege, which is one of several privileges under the umbrella of the executive privilege, can be invoked by one to whom the agency head has delegated authority. Such a rule promotes judicial efficiency and ensures more personal involvement in complex cases. The dissent would limit invocation of the privilege to the agency head: “Executive decisions should be made by accountable executives.” BANKRUPTCY Ponzi scheme guilt bars trustee’s RICO claims The doctrine of in pari delicto bars a bankruptcy trustee from pursuing claims on behalf of a bankrupt debtor under the Racketeer Influenced and Corrupt Organizations Act (RICO), the 11th U.S. Circuit Court of Appeals held on Jan. 30 in an issue of first impression. Official Committee of Unsecured Creditors of PSA Inc. v. Edwards, No. 05-12320. In October 1994, Charles Edwards started ETS Payphones Inc., a company that sold and leased back payphones as investment opportunities. Edwards was the sole shareholder of the company. ETS’ sale/lease-back program was actually a Ponzi scheme that ultimately defrauded investors of $300 million, with Edwards transferring the money earned to himself or to other companies he owned. In September 2000, ETS filed for bankruptcy, and Darryl S. Laddin was appointed trustee of the debtor estate. Laddin brought RICO claims against entities that, he alleged, assisted ETS in the operation of its fraudulent scheme. A Georgia federal court granted the defendants’ motion to dismiss based on the doctrine of in pari delicto, which provides that a wrongdoer may not profit from his wrongful acts. The 11th Circuit affirmed. 11 U.S.C. 323 states that “[a] trustee, as the representative of the estate, succeeds into the rights of the debtor-in-bankruptcy and has standing to bring any suit that the debtor corporation could have brought outside of bankruptcy.” The doctrine of in pari delicto may only be used as a defense to causes of action under federal statutes if the plaintiff actively participated in the violation and the policy goals of the federal statute are met. Since ETS actively participated in the Ponzi scheme and the policy of civil liability under RICO would be met by applying in pari delicto, the court said that ETS, and, as a result, the bankruptcy trustee, would have been barred from bringing a claim against its RICO co-conspirators. CIVIL PRACTICE Expert’s documents get work-product protection An expert witness in litigation need not disclose documents he used in forming his views if the documents are the attorney’s core or opinion work product, the Rhode Island Supreme Court held on Feb. 1 in a matter of first impression. Crowe Countryside Realty Assoc. Co. LLC v. Novare Engineers Inc., No. 2004-204-M.P. In litigation between Crowe Countryside Realty Associates Co. LLC and Novare Engineers Inc., Crowe retained three experts who were expected to testify at trial. Novare issued subpoenas duces tecum to all three, ordering them to bring all of their records pertaining to their forming of their opinions. Crowe moved for protective orders, asserting the work-product privilege. A Rhode Island trial court motion justice ruled that all of an attorney’s correspondence with an expert witness was subject to discovery. The Rhode Island Supreme Court reversed, saying that it must review the interaction of two fundamental principles underlying the adversarial system: “the liberal theory of discovery embodied in the Rules of Civil Procedure, and the work-product doctrine.” Quashing the trial court’s order and remanding for an in-camera review of the requested documents, the court held that the clear language in R.I. Sup. Ct. R. Civ. P. 26(b)(3) requires that a court “protect all core or opinion work product of an attorney, whether or not shared with an expert,” and that it applies to all discovery requests of materials prepared in anticipation of litigation. CONSTITUTIONAL LAW School policy on display of religious symbols OK A public school policy that allows a holiday display of a menorah and a star and crescent but does not allow the display of a cr�che does not violate the First Amendment of the U.S. Constitution, the 2d U.S. Circuit Court of Appeals ruled on Feb. 2. Skoros v. City of New York, No. 04-1229. Explaining that it wanted to eliminate religious symbols from holiday displays, New York City’s Department of Education said that the winter holiday display policy would be to allow the display of a Christmas tree from the Christian tradition, a menorah from the Jewish tradition and a star and crescent from the Islamic tradition. The Catholic League unsuccessfully petitioned the department to allow for the display of a cr�che. Andrea Skoros, a Roman Catholic mother of two, sued the city under 42 U.S.C. 1983 claiming that the holiday-display policy “impermissibly promoted and endorsed the religions of Judaism and Islam, conveyed the impermissible message of disapproval of Christianity, and coerced students to accept the Jewish and Islamic religions in violation of the Establishment Clause of the First Amendment.” A New York federal court rejected her claims. The 2d Circuit affirmed, holding that the department’s policy serves a secular purpose of teaching pluralism. Though the policy mischaracterizes the menorah and the star and crescent as secular symbols, in practice the policy ensures that they are only displayed in conjunction with other holiday symbols. And there is no excessive entanglement of church and state because the policy only limits government speech. The court said it was not deciding whether the department could ever include a cr�che in a public school winter holiday display. CRIMINAL PRACTICE Woman wrongly given life terms for bad checks A state court erred in convicting a woman for passing bad checks-for which it sentenced her to five life sentences as a habitual offender-because her bank was obligated to pay the checks under an overdraft agreement, the 9th U.S. Circuit Court of Appeals held on Feb. 1. Goldyn v. Hayes, No. 04-17338. Joni Goldyn had an account with the Nevada Federal Credit Union (NFCU) that came with a so-called check guarantee card, which informed merchants that the credit union would cover any checks even if there were insufficient funds in the account. Goldyn overdrew her account habitually and, after the bank had to cover multiple returned checks, a Nevada state jury convicted her of five counts of drawing and passing checks with insufficient funds on deposit. Because she had prior felonies for fraud, the court sentenced her to five life terms. After spending 12 years in prison, Goldyn filed a petition for a writ of habeas corpus in a Nevada federal court, arguing that because the credit union was obligated to pay the checks, she was not guilty of the offense. The court denied the petition. Reversing, the 9th Circuit agreed with Goldyn that because the bank was obligated to pay the checks, Goldyn had committed no crime. Noting that by giving Goldyn overdraft protection, NFCU was essentially giving Goldyn a loan, the court said, “NFCU can try to collect its money from Goldyn using the debt collection procedures it would employ for any other defaulted loan, including a civil lawsuit. But failure to repay a loan is not a crime; the days of imprisoning insolvent debtors are long gone.” Solicitation of burglary is itself a violent crime Solicitation of a crime of violence, including home burglary, is a crime of violence for purposes of sentencing a person who illegally re-entered the United States after deportation, the 10th U.S. Circuit Court of Appeals held on Jan. 30 in a matter of first impression. USA v. Cornelio-Pena, No. 04-3478. Raul Cornelio-Pena was convicted in a Kansas federal court of illegally re-entering the United States following deportation. The court sentenced him to 57 months’ custody, based in part on an enhancement for prior deportation after a conviction for a felony crime of violence. The court considered solicitation to commit burglary of a dwelling a crime of violence under U.S. Sentencing Guidelines Manual � 2L1.2(b)(1)(A)(ii) (2003). It also imposed an alternative 57-month sentence in the event that the guidelines were declared unconstitutional. The 10th Circuit affirmed finding that solicitation to commit burglary of a dwelling is a crime of violence under Section 2L1.2. The court said that the offenses listed in the guidelines’ Application Note are merely illustrative, and solicitation is sufficiently similar to the listed offenses to be encompassed within the Application Note. Thus solicitation of any offense that otherwise meets the definition of “crime of violence,” including burglary, is also a crime of violence. FAMILY LAW Child-support failure isn’t a continuing violation A felony charge of nonpayment of child support is subject to the same six-year catchall statute of limitations as other felonies are, and is not a continuing violation, a divided Michigan Supreme Court ruled on Feb. 1. People of the State of Michigan v. Monaco, No. 126852. In 1984, Vito Monaco was ordered to pay child support for his two minor children. Monaco missed many payments between then and when his youngest child turned 18 in 1994. In 2002, he was charged with felony failure to pay court-ordered child support under Mich. Comp. Laws � 750.165(1). Monaco moved to dismiss the charge as being barred by the six-year catchall statute of limitations for felonies. The trial court denied the motion, saying that the 10-year limitations period for civil proceedings to collect monetary obligations applied. An intermediate appellate court affirmed on different grounds, holding that the six-year statute of limitations applied, but that Monaco’s failure to pay arrearages was a continuing violation of Section 750.165(1). The Michigan Supreme Court affirmed the holding that the six-year period applied, but reversed the appellate court’s holding about a continuing violation. There is no continuing violation because the crime is complete when someone fails to pay the ordered amount at the ordered time. GOVERNMENT FBI need not amend file on Middle Eastern man A man with ties to the Middle East cannot compel the FBI to amend its file on him that relate to his First Amendment activities, because this record-keeping relates to “law enforcement activity,” exempted from parts of the Privacy Act, the 7th U.S. Circuit Court of Appeals held on Jan. 30. Bassiouni v. FBI, No. 04-3888. The Privacy Act, 5 U.S.C. 552a, requires that agencies that keep a system of records on individuals, including the FBI, must comply with certain rules. It prohibits the FBI from keeping records describing how an individual exercises his First Amendment rights unless the information is within the scope of an authorized “law enforcement activity,” which is undefined. Individuals may access their records and request their amendment. Mahmoud Bassiouni is involved in Arab-American groups. The FBI’s file on him includes portions of a speech he gave and documents mentioning a terrorist group, although the FBI concedes it does not suspect Bassiouni of ties to terrorist groups. Bassiouni sought to amend the FBI’s records on him pertaining to his Middle East activities. The FBI refused. He sued, claiming that the records violated the act. An Illinois federal court granted summary judgment to the FBI, holding that the records were exempt from the act’s amendment requirements. The 7th Circuit affirmed, citing assertions that the records are important for evaluating the continued reliability of FBI intelligence sources, as well as assertions that because of the breadth of Bassiouni’s contacts with the Middle East, the FBI will continue to receive information about him, for which the file will provide context. MEDIA LAW Parts of ‘Judith Miller’ opinion are unsealed Following a motion by Dow Jones & Co. seeking to unseal portions of the opinion pertaining to the subpoena of New York Times reporter Judith Miller, the U.S. Circuit Court of Appeals for the District of Columbia on Feb. 3 agreed to unseal portions of the opinion, but ordered that other portions remain redacted. In re Grand Jury Subpoena, Judith Miller, No. 04-338. Last year, the D.C. Circuit issued an opinion in which the court held that New York Times reporter Judith Miller and Time magazine reporter Matthew Cooper had neither First Amendment protection nor any common law privilege to excuse them from testifying in the investigation of the Bush administration’s release of the name of CIA agent Valerie Plame. The court redacted eight pages of the opinion to protect grand jury secrecy and classified information. Appearing as amicus curiae, Dow Jones & Co. moved to unseal the redacted portions of the opinion. Granting the motion in part and denying it in part, the D.C. Circuit agreed to unseal portions of the record because the indictment of a Bush administration official meant there was no need to keep redacted the portions of the opinion pertaining to him. However, because the investigation was continuing and because of grand jury secrecy issues, the court refused to unseal other portions of the opinion. The court said, “But just as some parts of the record may now be made public, others must remain secret. After reviewing the special counsel’s submissions, we agree that some information in the eight pages and in the special counsel’s affidavits unquestionably remains grand jury material that Rule 6(e) obligates us to maintain under seal. Its publication at this juncture could . . . damage the reputations of individuals who may never be charged with crimes.” TORTS Addiction claim barred if drug is obtained by fraud The “wrongful conduct rule” prevents a plaintiff from suing for addiction to a controlled substance that he obtained through his own fraud and subterfuge, the Mississippi Supreme Court determined on Feb. 2. Price v. The Purdue Pharma Co., No. 2003-CA-02101-SCT. Ernest Price suffered from sickle cell anemia and was prescribed the strong narcotic pain medicine OxyContin for pain related to his illness. From 1997 through 2002, Price saw three different doctors at overlapping times in order to receive multiple prescriptions for OxyContin, which he filled at different pharmacies. After one doctor refused to continue prescribing the drug for Price when he learned of Price’s behavior, Price brought a lawsuit for negligence, products liability, malicious conduct, fraud and malpractice against various caregivers, pharmaceutical companies and laboratories. He claimed that OxyContin was addictive, its addictive nature caused him injury, and that the defendants took part in producing, prescribing or distributing the drug to him. A Mississippi state court granted the defendants’ motions for summary judgment. The Mississippi high court affirmed. OxyContin is classified as a Schedule II controlled substance subject to criminal statutory penalties for attempts to acquire it fraudulently or dishonestly. The “wrongful conduct rule” states that no court will lend its aid to a party who grounds his action upon an immoral or illegal act. The court found that Price’s violation of the law in misrepresenting his medical history and ongoing treatment to caregivers was an essential and integral part of his case and the contributing cause of his alleged injury.

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