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CONSTITUTIONAL LAW No witness-confrontation right in probation hearing A probationer did not have a Sixth Amendment right to confront witnesses in a probation revocation hearing, the Massachusetts Supreme Judicial Court held on Feb. 9. Commonwealth v. Wilcox, No. SJC-09513. Richard Wilcox was on probation for making lewd telephone calls, and a condition of his probation was that he have no contact with anyone below the age of 16. Police discovered that Wilcox had been following young girls in his car, and his probation officer issued a probation- revocation notice. Relying on hearsay evidence from police reports, a Massachusetts trial court revoked Wilcox’s probation, and an intermediate appellate court affirmed. Wilcox appealed, arguing that admission of hearsay evidence from police reports violated his Sixth Amendment right to confront his accusers. Affirming, the Massachusetts Supreme Judicial Court held that the Sixth Amendment right to confront one’s accusers did not extend to probation-revocation hearings. The court said, “The probation revocation proceeding is not a new criminal prosecution. The Commonwealth has already met its burden of proving beyond a reasonable doubt the person’s guilt on the underlying crime.” Thus, “[D]ue process is not offended by admission in a probation revocation hearing of hearsay evidence that a judge determines to be ‘substantially reliable,’ or for which ‘good cause’ is otherwise shown.” Full text of the decision No immunity for ordering arrest of council member A town council president who had a fellow council member arrested at a council meeting was not entitled to qualified immunity, a divided 3d U.S. Circuit Court of Appeals ruled on Feb. 8. Monteiro v. City of Elizabeth, No. 04-3756. At an April 2001 meeting, Elizabeth, N.J., Councilman Armenio Monteiro gave a lengthy speech opposing the proposed budget. Council President Patricia Perkins-Auguste reprimanded Monteiro for distributing fliers that used the threat of increased taxes to encourage residents to attend the meeting. She called the fliers “deception,” “propaganda” and “disgusting.” When Monteiro repeatedly interrupted her, she had him handcuffed and arrested. Monteiro sued in a New Jersey federal court. The court denied Perkins-Auguste’s motion for summary judgment because her entitlement to qualified immunity was dependent on a fact question about whether she had Monteiro removed from the meeting because of his view of the budget. The jury ruled for Monteiro. The 3d Circuit affirmed. The jury could have concluded from the testimony and video of the meeting that Perkins-Auguste acted with an intent to suppress Monteiro’s speech on the basis of his viewpoint. Her failure to follow established procedures and the speed with which she determined that Monteiro should be removed could be viewed as evidence that her decision to arrest Monteiro was based on emotion and personal animosity rather than a desire to maintain smooth operation of the meeting. CONTRACTS Unjust-enrichment claim against MCI may prevail MCI Telecommunications Corp. may have unjustly enriched itself through its last-minute agreement to bypass the middleman in a prepaid phone card deal with CVS Corp., the 1st U.S. Circuit Court of Appeals held on Feb. 8. APG Inc. v. MCI Telecommunications Corp., No. 02-1120. APG Inc., acting as middleman, initiated discussions with drugstore chain CVS Corp. to persuade CVS to buy, for resale in its stores, prepaid telephone cards provided by MCI Telecommunications Corp. Ultimately, CVS bypassed APG, contracting directly with MCI to buy thousands of prepaid cards. APG sued under tort and contract theories, claiming that MCI had deceitfully closed the deal at the last minute, taking advantage of APG’s efforts and depriving it of its commissions. A Rhode Island federal court granted summary judgment and judgment as a matter of law to MCI on all claims. The 1st Circuit affirmed in part, vacated in part and remanded. The court affirmed the district court’s grant of summary judgment for MCI on the tortious interference and misappropriation of trade secrets claims, but remanded for further proceedings on the unjust enrichment count. The court said that on the facts presented, a jury could conclude that APG had invested the time and effort needed to sell CVS on the MCI program, and that MCI then came along and collected the benefit. “The evidence of record thus appears sufficient to allow a finding that all three elements of the unjust enrichment claim were met: (1) a benefit (access to the CVS account) (2) of which the defendant was aware, and (3) that was accepted in circumstances in which failure to pay would be inequitable,” the 1st Circuit said. Contract with unlicensed employment agency void An employment agency may not conduct business in the state of North Dakota until it procures a license from the commissioner of labor, the North Dakota Supreme Court said on Feb. 8. Preference Personnel Inc. v. Peterson, No. 20050255. On July 12, 2002, Craig Peterson, an attorney and certified public accountant, entered into an employment agreement with Preference Personnel Inc., an employment agency, to help him find full-time work in the field of tax law. The agreement required the employer to pay the placement fee, which was 20% of one year’s gross salary. If the employee voluntarily quit within 90 days, he or she would be responsible for paying the placement fee. On Dec. 18, 2003, Preference Personnel placed Peterson with the Tax Law Office at an annual gross salary of $60,000. Peterson began working part-time on Feb. 2, 2004, but voluntarily quit at the end of that month. When he refused to pay Preference the placement fee, the agency sued him for breach of contract. At the time of their contract, Preference was not licensed as an employment agency with the North Dakota Department of Labor because it had forgotten to renew its license. However, in October 2002, the department issued Preference a retroactive license covering the period from Oct. 28, 2001, through Oct. 27, 2002. A trial court dismissed the complaint, finding the agreement to be unenforceable because Preference was not licensed at the time the parties entered into the contract. The North Dakota Supreme Court affirmed. N.D. Cent. Code � 34-13-02 provides that “[a] person may not open or carry on an employment agency if that person has a physical presence or location within the state, unless that person first procures a license from the commissioner” of labor. Since the statute does not provide for retroactive licensing, Preference Personnel was unlicensed at the time of the employment agreement. Although Peterson may have breached the employment contract, the court held that public-policy considerations require employment agencies to fulfill extensive licensing requirements in order to protect citizens, and may not conduct business unless they are so licensed. EVIDENCE Gun seized in illegal stop suppressed as evidence Evidence seized after an illegal stop should be suppressed despite police discovery of an outstanding arrest warrant before the evidence was seized, the Florida Supreme Court held on Feb. 9. State of Florida v. Frierson, No. SC03-1528. Anthony Frierson made a left turn without signaling, and a police officer noticed that his vehicle had a cracked taillight. The officer stopped Frierson, ran a warrant check and discovered that there was an outstanding arrest warrant for Frierson. The officer arrested him, searched his car and discovered a firearm. Frierson was charged with being a felon in possession of a firearm. Frierson moved to suppress the gun, arguing that the stop was illegal. A trial court agreed that the stop was illegal because neither failure to signal if causing no danger nor a cracked taillight violated Florida law. However, the court held that even though the warrant was erroneous, the officer had relied reasonably on it, making the search valid. An intermediate appellate court reversed, holding that, regardless of the warrant, the gun was still obtained as the result of an illegal search. Affirming, the Florida Supreme Court held that the warrant was not a sufficient intervening circumstance to overcome the illegal stop. The court said, “[a]lthough an individual may certainly be prosecuted for an offense on which he or she is arrested pursuant to an outstanding warrant discovered during an illegal stop, evidence acquired in a search incident to that arrest should be suppressed.” FAMILY LAW Grandparent-visit law is due process rights breach A Maine statute providing for grandparent visitation was unconstitutional as applied to a mother who objected to the visitation, the Maine Supreme Judicial Court held on Feb. 9. Conlongue v. Conlongue, No. 2006 ME 12. Kevin and Patricia Conlongue had a child in 2000, and Kevin Conlongue died in 2003. His parents, Herschel and Jane Conlongue, filed suit under Maine’s Grandparents Visitation Act, Me. Rev. Stat. Ann. tit. 19 �� 1801-1805, seeking visitation. Patricia Conlongue countered that the law was unconstitutional facially and, as applied to her, a violation of her due process rights to rear her child. A trial court dismissed the grandparents’ petition. Affirming, the Maine Supreme Judicial Court held that in some circumstances, such as where grandparents have reared a child, the state had a compelling reason to intrude on a parents’ rights. However, in this case there was no such compelling state interest. The court said, “We conclude that the death of one parent in itself is not an urgent reason that justifies forcing the surviving parent into litigation under the Act. Section 1803(1)(A) thus fails to serve a compelling state interest when it is applied to allow the deceased parent’s family to litigate visitation over the objection of a custodial parent like Patricia . . . .In the absence of a compelling state interest, forcing Patricia to defend against the grandparents’ visitation petition for the sole reason that her daughter’s father is dead would violate her substantive due process rights.” GOVERNMENT AG’s dismissal of claims under Nevada law is OK Trial courts wrongly applied the “good cause” standard by which the attorney general of Nevada may dismiss false claims actions brought by private plaintiffs based on tax deficiencies under Nevada’s False Claims Act (FCA), the Nevada Supreme Court ruled in an issue of first impression on Feb. 9. International Game Technology Inc. v. The Second Judicial District Court of the State of Nevada, in and for the County of Washoe, No. 43882. In February 2003, on behalf of himself and the state of Nevada, James McAndrews filed suit under the FCA against International Game Technology Inc., Anchor Coin Inc. and Spin For Cash Wide Area Progressive, alleging that the companies falsified tax records in order to conceal or decrease the amount of sales and use tax they owed the state. The Nevada attorney general intervened and moved to dismiss the actions. The trial courts denied the motions to dismiss, finding that the express language of the FCA does not bar tax-deficiency claims, and that the attorney general had not demonstrated good cause for dismissal. The Nevada Supreme Court reversed. The FCA allows people to become “private attorneys general,” granting them the right and financial incentive to sue on behalf of the state and its political subdivisions, “if money, property or services provided by the State [or its political subdivisions] are involved.” In this case, the attorney general asserted a legitimate government purpose for dismissal, namely, that the allegations in the complaint, which involved factual evaluations and legal interpretations of tax laws, would be better addressed by the tax agency statutorily responsible for administering such tax laws in order to maintain uniformity and consistency. HEALTH LAW Civil commitment status change can’t be reviewed Involuntarily committed civil patients transferred from a nonsecure facility to a secure one are not entitled to a rehearing and review of the propriety of that determination, the New York Court of Appeals ruled on Feb. 9. In the Matter of Jamie R., No. 12. Charged with assault for kicking a police officer in the groin, Jamie R., diagnosed as a paranoid schizophrenic, pleaded not responsible by reason of mental disease or defect. At his commitment proceeding, Jamie R. was deemed to be a “track two” patient, a midlevel assessment, and placed in a nonsecure facility. After being twice discharged and twice readmitted because of threatening behavior, the New York state Office of Mental Health instituted a hearing to review Jamie R.’s status, concluding that he suffered from a “dangerous mental disorder,” and that he should be reclassified as a “track one” patient and placed in a secure facility. Jamie R. petitioned for jury rehearing and review under N.Y. Crim. Proc. Law � 330.20(16). The New York trial court jury decided that he should remain a track-two patient. An intermediate appellate court reversed. The New York Court of Appeals, New York’s high court, affirmed. Jamie R. could have challenged the decision to commit him civilly, but once that commitment took effect, he had no right to rehearing and review of changes to that commitment. “If we were to recognize a right to rehearing and review of what is essentially a transfer decision, we would be granting to insanity acquittees a broader procedural right not generally available to civil patients.” IMMIGRATION LAW Visa curb is OK basis for limited PTO recognition When considering the extent to which it will recognize a foreign attorney to practice before it, the U.S. Patent and Trademark Office (PTO) may consider any restrictions placed on the attorney’s visa, the U.S. Court of Appeals for the Federal Circuit ruled on Feb. 6. Lacavera v. Dudas, No. 05-1204. Catherine Lacavera, a Canadian national, began working as an attorney in the United States in September 2001 under a one-year TN visa (a temporary work visa available only to Mexicans and Canadians under the North American Free Trade Agreement). The visa allowed her to prosecute patent applications at a New York law firm. Before taking the patent exam, Lacavera applied for recognition before the PTO. She was granted only limited recognition because of her visa restriction. Her visa was subsequently changed to H-1B status, allowing her to prepare and prosecute patent applications for Google Inc. only. Lacavera challenged the PTO’s decision not to grant her full recognition. A District of Columbia federal court granted summary judgment to the PTO. The Federal Circuit affirmed, finding the PTO’s decision to be a reasonable interpretation of the regulations governing registration. There was no abuse of discretion, nor did the PTO exceed its authority, because granting Lacavera full registration would have given her PTO approval to do work her visa prohibited her from doing. INTERNET LAW One e-mail can’t trigger Utah’s CAN-SPAM Act The state of Utah does not have jurisdiction over a Utah resident’s claim under the Utah version of the federal Controlling the Assault of Nonsolicited Pornography and Marketing (CAN-SPAM) Act of 2003, where the only Utah contact was the receipt of one e-mail in the state, the Utah Supreme Court held on Feb. 10. Fenn v. Mleads Enterprises Inc., No. 20041072. Mleads Enterprises Inc. is a closely held Arizona corporation which contracts with marketing companies that advertise Mleads’ services to customers through e-mail solicitations. Business activity in Utah produces approximately 1% of Mleads’ revenue. Mleads sent unsolicited e-mail to Brittney Fenn, a Utah resident. Fenn filed a complaint alleging that Mleads violated Utah’s Unsolicited Commercial and Sexually Explicit E-mail Act, which required the characters “ADV” in the subject line of unsolicited commercial e-mail. Utah’s act was later repealed after the federal government passed the CAN-SPAM Act, which pre-empted it. Mleads’ only advertisement in Utah was via unsolicited e-mail. A Utah trial court dismissed the case for lack of personal jurisdiction. An intermediate appellate court reversed, holding that Utah had jurisdiction. The Utah Supreme Court reversed. Both parties agreed that the Utah long-arm statute extends to Mleads’ actions and that Fenn’s claim arises from those acts or contacts. However, the court held that Mleads lacked the minimum contacts with Utah, and that an exercise of jurisdiction based on one e-mail would be unfair, unreasonable and a violation of due process. REAL PROPERTY Restrictions on land sale OK when freely agreed When evaluating the reasonableness of any agreement placing a restraint on the alienation of property, courts should be reluctant to invoke common law principles that invalidate a contract freely agreed to by the parties, the Washington Supreme Court held on Feb. 9. Alby v. Banc One Financial, No. 75001-7. Eugene and Susan Alby sold a part of their family farm that was worth $100,000 to their niece, Lorri Brashler, and her husband, Larry Brashler, for $15,000. To keep the property in the family, the Albys put clauses in the contract and deed providing for the automatic reversion of the property to the Albys if the property were ever subdivided, mortgaged or otherwise encumbered during either of their lifetimes. Despite these restrictions, the Brashlers obtained two loans on the property, one from First Union Mortgage Corp. for $92,000, and the second from CIT Group for $17,250. The second loan was later assigned to Banc One Financial. When the Brashlers defaulted on their first loan, the lender held a trustee’s sale, and Banc One bought the property for $100,822.16. After this sale, Susan Alby filed a quiet title action against Banc One, citing the original deed restriction. The trial court quieted title in Banc One. An intermediate appellate court reversed. The Washington Supreme Court affirmed, holding that “In determining whether a restraint is reasonable, we balance the utility of the purpose served by the restraint against the injurious consequences that are likely to flow from its enforcement.” Concluding that the potentially injurious consequences of not mortgaging or encumbering the property and reducing its marketability are outweighed by the utility of enforcing the limited restraint to keep the property in the family, the court determined that the parties here freely agreed to the restraint as part of the substantially reduced price.

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