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ADMINISTRATIVE LAW Trust beneficiary may collect Medicaid benefits The beneficiary of an irrevocable, discretionary testamentary trust is entitled to Medicaid benefits, the Nebraska Supreme Court ruled on March 10. Pohlmann v. Nebraska Dep’t of Health and Human Services, No. S-04-1327. Herman Pohlmann in his will provided for the creation of a family trust to be funded by the amount of his property that was equal to the unified credit that is available in determining federal estate tax liability. Pohlmann’s wife, Ruth, was to receive the income from this trust as well as any principal that the trustee determined was appropriate for health or support. Following her husband’s death, Ruth Pohlmann applied to the Nebraska Department of Health and Human Services for Medicaid benefits. The department denied the request because her resources exceeded the $4,000 program standard. A Nebraska trial court affirmed. The Nebraska Supreme Court reversed and remanded. Under 42 U.S.C. 1396a(a)(17)(B), a state participating in the Medicaid program must establish resource standards for the determination of eligibility that take into account “only such income and resources as are . . . available to the applicant or recipient.” In a discretionary trust, only the distribution of income or principal or both actually made to the beneficiary can count as available assets because the trustee has uncontrolled discretion over payment. Because Ruth Pohlmann could not compel income distribution, the court ruled that the family trust corpus was discretionary and not an available asset in determining eligibility for Medicaid.   Full text of the decision CIVIL PRACTICE Preview of evidence in voir dire can be halted a trial court doesn’t abuse its discretion when it refuses to allow an attorney to pose questions on voir dire that preview relevant evidence, the Texas Supreme Court ruled on March 10. Hyundai Motor Co. v. Vasquez, No. 03-0914. Four-year-old Amber Vasquez was killed in an auto collision when the passenger-side air bag deployed. The girl was not wearing a seat belt. Her parents filed a products liability suit against Hyundai Motor Co. Two jury panels were dismissed when, in response to questions from plaintiffs’ counsel, many prospective jurors indicated that their verdict would be determined by whether or not the girl was wearing a seat belt at the time of the accident. During voir dire for the third panel, the judge said that she would permit questions about prospective jurors’ seat-belt-wearing habits, but not questions disclosing that the girl wasn’t wearing a seat belt. A panel was seated and it returned a verdict for Hyundai. The Vasquezes appealed, contending that the court erred in disallowing voir dire inquiry into whether the jurors would be predisposed against the plaintiffs if they learned that the girl wasn’t wearing a seat belt. An intermediate appellate court reversed. The Texas Supreme Court reversed. While voir dire questions that test jurors’ external biases are proper, those that test their possible verdicts based on case-specific relevant evidence should not be allowed. Such questions cannot be ameliorated by instructions to be fair and impartial. CIVIL RIGHTS Political affiliation not a recognized class for suit Political affiliation is not a recognized class under a statute that prohibits conspiracies to deprive individuals and classes of people of their equal protection rights, the 3d U.S. Circuit Court of Appeals ruled on March 8. Farber v. City of Paterson, No. 04-4498. When Democratic candidate Jose Torres was elected mayor of Paterson, N.J., he fired Roberta Farber, a supporter of his Republican opponent, as administrative assistant. Farber asked her government employees’ union to file a grievance on her behalf, but the union refused on the ground that Farber was an at-will employee. Farber sued the city and the union under 42 U.S.C. 1985(3). She alleged that the two conspired to deprive her of her First Amendment political-affiliation rights. A New Jersey federal court denied the union’s motion to dismiss, then granted its motion for interlocutory appeal, certifying a question for the 3d Circuit asking if shared political affiliation constituted a cognizable class under Section 1985(3). The 3d Circuit reversed, holding that shared political affiliation was not a cognizable class under Section 1985(3). Congress’ acknowledgement in 1871 that Republicans were victims of racially motivated Ku Klux Klan violence does not mean that Section 1985(3) was intended to give victims of political discrimination a cause of action. Discrimination against a political class is not the same type of “invidious” discrimination that Section 1985(3) was intended to reach. COMPUTER LAW Secure-erase program is ‘transmission’ under law Loading a secure-erase program on a company-loaned computer with the intent to destroy data is “transmission” within the meaning of the Computer Fraud and Abuse Act, the 7th U.S. Circuit Court of Appeals held on March 8. International Airport Centers LLC v. Citrin, No. 05-1522. International Airport Centers LLC (IAC) alleged that they had lent former employee Jacob Citrin a laptop computer to record data he had collected in the course of his work. Citrin quit IAC, but before returning the laptop, deleted the data he had collected. He loaded into the laptop a secure-erase program which writes over deleted files to prevent their recovery. IAC filed suit claiming that, according to the Computer Fraud and Abuse Act, whoever “knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage . . . to a protected computer” violates the act. Citrin argued that merely erasing a file from a computer is not a “transmission.” An Illinois federal court dismissed the suit for failure to state a claim. The 7th Circuit reversed, and directed that the suit be reinstated. The court noted that Citrin had “transmitted” the secure-erase program to the computer, which constitutes “transmission” within the meaning of the statute. [See "Erasing e-mails brings liabilities," Page 9.] CONSTITUTIONAL LAW Student’s Jesus sign on parade enjoys protection A district court erred in granting summary judgment to school administrators who confiscated a student’s parade sign and suspended him because the sign, reading “Bong Hits 4 Jesus,” was protected speech, the 9th U.S. Circuit Court of Appeals held on March 10. Frederick v. Morse, No. 03-35701. Joseph Frederick, an 18-year-old senior at Alaska’s Juneau-Douglas High School, attended a parade to celebrate the passing of the Olympic torch. At the parade, Frederick unfurled a flag reading, “Bong Hits 4 Jesus.” Deborah Morse, the school’s principal, confiscated Frederick’s flag and suspended him for 10 days. Frederick sued Morse and the school board under 42 U.S.C. 1983, claiming that Morse’s actions violated his First Amendment rights. An Alaska federal court granted summary judgment to the school administrators, holding that they had not violated Frederick’s First Amendment rights, and that even if they had, the school administrators were entitled to qualified immunity. Reversing, the 9th Circuit held that Frederick’s sign was constitutionally protected speech and that the law was so well-settled, a reasonable school administrator should have known the sign was protected. Thus, the administrators were not entitled to qualified immunity. The court said, “The law . . . is so clear and well-settled that no reasonable government official could have believed the censorship and punishment of Frederick’s speech to be lawful. In fact, there is nothing in the authorities that justifies what the school did, and no reasonable official could conclude otherwise.” Construction damage is not a property taking Construction damage rendering a building unusable does not rise to a taking of a private property interest, the Iowa Supreme Court held on March 10. Kingway Cathedral v. Iowa Department of Transportation, No. 14/03-2066. Kingsway Cathedral owns a church building and property in Des Moines, Iowa. Two construction projects over which the Iowa Department of Transportation and the city of Des Moines had jurisdiction caused vibrations that damaged the church building. The city notified Kingsway that the building was a public hazard and ordered it vacated. Unless repaired, the building was to remain unoccupied. Since the cost of repairing the building was at least $3.9 million and its fair market value before the damage was only $580,000, it was not financially feasible to restore the building. Since neither the city nor the department was prepared either to repair and restore the building or to condemn the property, Kingsway filed suit, alleging that their actions constituted a taking under the Fifth Amendment of the U.S. Constitution. An Iowa state court denied the defendants’ motions to dismiss. The Iowa Supreme Court reversed. The U.S. Constitution provides that “private property [shall not] be taken for public use, without just compensation.” Here, however, the damage was caused by vibrations that were of a temporary nature. As a result, there was no servitude and the only recovery Kingsway may have is through a tort action. CRIMINAL PRACTICE Federal guidelines must start sentencing process A sentencing judge should use the Federal Sentencing Guidelines as a starting point, and then consider if there are persuasive reasons to sentence outside the guideline range, an en banc 1st U.S. Circuit Court of Appeals held on March 9. USA v. Jim�nez-Beltre, No. 05-1268. A little more than a month after the U.S. Supreme Court issued its U.S. v. Booker opinion, a Massachusetts federal court had the task of sentencing Lenny Jim�nez-Beltre, who had pleaded guilty to illegal re-entry into the United States. The judge said that he would consider the Federal Sentencing Guidelines to be advisory, not mandatory. He said he would give them substantial but not controlling weight, and that if there were “clearly identified and persuasive reasons why [he] should not impose a Guidelines sentence,” he would consider them and sentence accordingly. The court found “no clearly identified and persuasive reasons to impose a non-guidelines sentence” and sentenced Jim�nez-Beltre to 46 months. The 1st Circuit affirmed, holding that sentencing from scratch in every case would defeat the congressional objective of rough equality. DAMAGES Teacher replacement costs are recoverable When a teacher resigns without giving the 30 days’ notice required by law, the “ordinary and necessary expenses” that a school district can recover from the teacher are limited to actual expenditures incurred in finding a replacement, the Colorado Supreme Court ruled on March 6. Klinger v. Adams County School District No. 50, No. 04SC724. After working as a teacher for the Adams County School District No. 50 for 12 years, Mary Klinger submitted a letter of resignation on Aug. 10, 2001, ten days before the start of her assigned teaching schedule for the 2001-2002 school year. The terms of her employment contract contained a provision giving the district the right to recover damages, not to exceed one-twelfth of her annual salary, in securing a replacement teacher if she failed to perform services for the district under the agreement. According to Colo. Rev. Stat. � 22-63-202 (2) (a), the district’s right to such damages was limited to “ordinary and necessary expenses.” The district withheld Klinger’s entire last paycheck, totaling $1,426.50, one-twelfth of her net annual salary, to cover costs related to finding her replacement. Klinger sued the district, and the jury reimbursed her for $133.50-the district’s claimed advertising and recruitment costs, since the district did not advertise the position. An intermediate appellate court affirmed. Reversing, the Colorado Supreme Court held that “ordinary and necessary expenses” in the statute applies only to actual cash outlays and doesn’t include expenses for overhead. This definition fulfills the Legislature’s goal of ensuring that liquidated damages provisions are a reasonable estimate of actual damages. EVIDENCE Police-shooting plaintiff entitled to discovery A district court erred in granting summary judgment to police officers in a civil rights case without giving the plaintiff the opportunity to conduct discovery involving alleged videotapes of the incident, the 4th U.S. Circuit Court of Appeals held on March 8. Ingle v. Yelton, No. 05-1556. Asheville, N.C., police officers shot and killed Christopher Ingle after an alleged altercation involving his father and sister. Ingle’s estate sued the city and police officers involved in the incident in state court under both state law and 42 U.S.C. 1983. The city and the officers removed the action to federal court, and a federal district court granted them summary judgment. The estate appealed, arguing that the district court should have allowed it to conduct additional discovery concerning alleged videotapes of the police shooting of Ingle. Reversing in part, the 4th Circuit held that the district court erred in granting summary judgment without the videotape discovery. The court said, “Because there was a sufficient basis to believe such videos existed, and because this evidence represented Ingle’s principal opportunity to contradict the assertion that the district court found dispositive, the court should have allowed discovery as to the videos.” FAMILY LAW Poor parents facing jail can get assigned counsel Indigent parents facing jail for child support arrears are constitutionally entitled to have appointed counsel, the New Jersey Supreme Court ruled on March 8. Pasqua v. Council, No. A-131-04. A mother and two fathers were arrested for not complying with their court-ordered child support obligations. They were incarcerated for between 15 and 56 days, but were released without making any payments. The three filed suit in state court, claiming that they had a due process right to appointed counsel under the 14th Amendment of the U.S. Constitution and the New Jersey Constitution. The trial court agreed, but held that they were not entitled to attorney fees, and found that funding for representation under these circumstances rested solely with the Legislature. An intermediate appellate court reversed, holding that indigent parents in child support arrearage cases did not have a right to appointed counsel. The New Jersey Supreme Court reversed. Because these indigent parents faced loss of their physical liberty, they were entitled to appointed counsel. The parents’ interests are insufficiently protected by a trial court’s thorough investigation into their ability to pay. The court said that coercive incarceration in child support arrearage cases isn’t an option until the Legislature provides funding for constitutionally mandated counsel. INSURANCE LAW Coverage reduction valid despite use of wrong font A trial court erred in holding that a commercial insured’s request to reduce its coverage was invalid because the insured failed to use the 12-point font required by state law, the Connecticut Supreme Court held on March 7. Kinsey v. Pacific Employers Ins. Co., No. SC 17182. Jerome Kinsey was involved in a motor vehicle collision while operating his employer’s vehicle. Kinsey’s employer, Friedkin Companies Inc., was insured by Pacific Employers Insurance Co., and, after Kinsey had exhausted the insurance coverage of the driver who hit him, he filed a claim with Pacific under his employer’s underinsured motorist coverage. Shortly before Kinsey’s collision, Friedkin had requested a reduction in the amount of its insurance. Though the request contained the informed-consent language required by Conn. Gen. Stat. � 38a-336(a)(2), it was prepared in eight-point font instead of the 12-point font required by the statute. An arbitrator ruled in favor of Kinsey, and a trial court affirmed. Reversing, the Connecticut Supreme Court held that the font error did not render the reduction in coverage invalid because the law was intended to protect individual insureds, not sophisticated corporate clients such as Friedkin. The court said, “[T]here is no reason to require strict adherence to the twelvepoint type requirement of � 38a-336 (a) (2) in the context of a commercial fleet policy. Friedkin, which had more than 2,700 employees and was insured under a commercial fleet policy covering more than 1,000 vehicles, is not a member of the class of consumers that the legislature sought to protect when it enacted that typeface requirement.”

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