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ADMINISTRATIVE LAW Nuclear agency should consider terrorist threat The federal Nuclear Regulatory Commission (NRC) erred in denying a petition challenging the grant of a license to California’s Diablo Canyon nuclear power plant because it failed to consider the environmental impact of a terrorist attack on the facility, the 9th U.S. Circuit Court of Appeals held on June 2. San Luis Obispo Mothers for Peace v. Nuclear Regulatory Comm’n, No. 03-74628. Pacific Gas and Electric Co. (PG&E) filed an application with the NRC under 10 C.F.R. Part 72 for a license to construct and operate an interim spent fuel storage installation at PG&E’s Diablo Canyon power plant in San Luis Obispo, Calif. The NRC granted the license, but the San Luis Obispo Mothers for Peace, the Sierra Club and others challenged the license, arguing, inter alia, that the NRC should have considered the environmental impact of a terrorist attack on the facility and that its failure to do so violated the National Environmental Policy Act (NEPA). The NRC countered that the threat of a terrorist attack was so remote that such a review was unnecessary. The 9th Circuit reviewed the petition. Although it denied parts of the petition, the 9th Circuit granted the petition as to the NEPA claim regarding consideration of the terrorist threat. The court said, “If the risk of a terrorist attack is not insignificant, then NEPA obligates the NRC to take a ‘hard look’ at the environmental consequences of that risk.”   Full text of the decision CRIMINAL PRACTICE Accused’s autobiography is evidence of intent A federal district court did not err in admitting into evidence a book a defendant wrote detailing the exact scheme for which he was on trial, the 6th U.S. Circuit Court of Appeals ruled on June 1. United States v. Fraser, No. 05-1423. In 2001, Aaron Fraser, a/k/a Asante Kahari, met a woman on an Internet dating chatroom and persuaded her to deposit $38,929 in checks he sent her. The woman then withdrew the money and Kahari flew from New York to Michigan to retrieve it. Despite assuring the woman he wanted to start a family with her, Kahari left the next day and did not contact the woman again. Because the checks Kahari sent were counterfeit, authorities in Michigan charged Kahari with bank fraud, uttering, mail fraud and possession of counterfeit securities. At trial in a Michigan federal court, prosecutors attempted to enter into evidence excerpts from a book that was advertised on Kahari’s Web site as “the new autobiography of Asante Kahari.” The Birth of a Criminal, published in 2002, included a chapter that detailed the same scam Kahari used on the Michigan woman. The district court allowed the excerpts into evidence as proof of Kahari’s “intent and modus operandi.” Kahari was convicted. The 6th Circuit affirmed, ruling that the book was properly admitted into evidence to demonstrate Kahari’s intent, since Kahari argued in his defense that the Michigan woman had tricked him, not the other way around. Had there been any unfair prejudice, it did not substantially outweigh the book’s probative value. The court disagreed, though, that the book could be admitted as proof of Kahari’s modus operandi, which is generally used to demonstrate identity, a fact not at issue here. Pledge to obey law is no defense in murder plot A white supremacist leader’s conversations with a person who offered to kill a judge for him constituted solicitation, despite the leader’s stated assertions that he himself would act only within the law, the 7th U.S. Circuit Court of Appeals held on May 30. USA v. Hale, No. 05-1922. Matthew Hale was the “pontifex maximus” of a white-supremacist organization formerly called World Church of the Creator. In a civil suit, U.S. District Judge Joan Humphrey Lefkow entered an order unfavorable to the church. Hale e-mailed a follower known to be interested in killing Hale’s enemies, Tony Evola, and asked him to locate Lefkow’s home address. Hale said that “any action of any kind” against her “is entirely up to each . . . Creator according to . . . his own conscience.” When Evola asked whether he should “exterminate” the “Jew rat” judge, Hale said that he personally would fight within the law, but that if Evola wished to do anything himself, he could. Hale was charged with soliciting the judge’s murder and obstructing justice, and was convicted in an Illinois federal court. The 7th Circuit affirmed. Hale argued no rational fact-finder could have found beyond a reasonable doubt that he solicited Evola to murder Lefkow, since he had never asked Evola to kill her and had said he personally would stay within the law. The court said a jury could have found that Hale had tried to persuade Evola to act, and that he had not simply engaged in a passive failure to intervene to stop another’s crime. The court found it believable that the roundabout nature of Hale’s recorded communications were attempts to insulate himself from blame because he knew he was being monitored. In view of his relationship with Evola and the past history of the church, it was clear that he was soliciting the murder. LABOR LAW OK to fire unprotected worker for picketing The National labor Relations Board (NLRB) erred in ruling that a company committed an unfair labor practice by firing an employee for picketing because, as a single-employee unit, the employee was not protected by the picketing provisions of the National Labor Relations Act (NLRA), the U.S. Circuit Court of Appeals for the District of Columbia held on June 2. International Transportation Services Inc. v. NLRB, No. 05-1063. Deanna Tartaglia was an employee of International Transportation Services Inc. at one of its facilities at the port of Long Beach, Calif. She was a nonunion employee working in a single-person office as a payroll and billing representative. Tartaglia-seeking to be represented by the International Longshore and Warehouse Union (ILWU)-picketed in front of the company facility with union representatives, demanding to be allowed to be part of the union. Many employees refused to cross Tartaglia’s picket line, resulting in costly problems at the facility. The company terminated her. The union filed an unfair labor practice charge against International Transportation, arguing that it had violated the NLRA in firing Tartaglia. The NLRB held that the firing violated sections 8(a)(3) and (1) of the act. Section 8(a)(1) says that an employer may not “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in” Section 7 of the act. Section 8(a)(3) makes it an unfair labor practice for an employer to terminate an employee to “discourage membership in any labor organization.” The company claimed that Tartaglia’s recognitional picketing was not protected by Section 7, which grants employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing.” Section 7′s right to collective bargaining, the company said, doesn’t cover single-employee bargaining units. The D.C. Circuit reversed, holding that as a single-employee unit, Tartaglia was not protected by NLRA Section 8′s picketing provisions. The court said, “[T]he Board has demonstrated no relationship between [her] individual action and any effect on, or authority from, fellow employees. Tartaglia did not engage in concerted activity and therefore does not receive [NLRA] Section 7 protection for her picketing. Neither does Section 7 protect her for assisting the Union’s wrongdoing.” LEGAL PROFESSION City attorney disqualified from case of ex-client The San Francisco city attorney and the entire city attorney’s office were disqualified from litigation involving the city attorney’s former client because an ethical wall was insufficient to guard against a conflict of interest where the conflicted attorney was the head of the office, the California Supreme Court held on June 5. City and County of San Francisco v. Cobra Solutions Inc., No. S131048. Cobra Solutions Inc. and TeleCon Ltd., two California corporations providing computer services, retained the law firm of Kelly, Gill, Sherburne and Herrera to represent them regarding computer contracts with San Francisco. Dennis Herrera, a name partner in the firm, was later elected San Francisco city attorney. Continuing an investigation started before Herrera was elected, the city attorney’s office added Cobra and TeleCon as defendants in a civil suit, and the companies moved to disqualify the city attorney’s office. A trial court ruled that Herrera and the entire city attorney’s office were conflicted, and ordered the appointment of an independent counsel to try the case. San Francisco appealed, arguing that an ethical wall keeping Herrera away from the case would suffice. An intermediate state appellate court affirmed. Affirming, the California Supreme Court held that because Herrera was the head of the office, having control over personnel and other administrative decisions, an ethical wall would not suffice. The court said: “[A] former client may legitimately question whether a government law office, now headed by the client’s former counsel, has the unfair advantage of knowing the former client’s confidential information when it litigates against the client in a matter substantially related to the attorney’s prior representation of that client.” Clients can’t consent in advance to settlement An attorney representing multiple clients cannot seek his clients’ consent to a settlement until after the settlement’s terms are known, the New Jersey Supreme Court ruled on May 31 in an issue of first impression. The Tax Authority Inc. v. Jackson Hewitt Inc., No. A-24-05. Prior to the 2000 tax season, Jackson Hewitt Inc. gave rebates to its franchisees when they offered their taxpayer-customers “refund anticipation loans.” When Jackson Hewitt discontinued the practice, 154 Jackson Hewitt franchisee holders sued. Because the franchise agreement prohibited a class action, the franchisees collectively retained Boston attorney Eric Karp to represent them in a mass lawsuit. Each of the 154 plaintiffs entered into an identical retainer agreement: The plaintiffs agreed that the fees would be shared by each plaintiff and that the matter could be resolved by settlement upon the vote of a weighted majority. Eventually a weighted majority of the plaintiffs approved the settlement. Karp notified the franchisees that if they did not want to be part of the settlement, then he would file a motion to withdraw from representing them. A New Jersey trial court granted both Karp’s motion to withdraw as counsel for 18 nonsigning plaintiffs and Jackson Hewitt’s motion to enforce the settlement agreement against all franchisees. The Tax Authority Inc. appealed. An intermediate appellate court reversed, saying a majority-rules settlement violated N.J. Rules of Professional Conduct Rule 1.8(g), which prohibits a lawyer who is representing two or more clients from making an aggregate settlement unless each client gives informed consent. The New Jersey Supreme Court reversed. The court held that Rule 1.8(g) forbids an attorney from obtaining consent in advance from multiple clients that each will abide by a majority decision in respect of an aggregate settlement. Before a client may be bound by a settlement, he or she must have knowledge of the terms of the settlement and agree to them. However, the court said that its holding should only be prospectively applied, and ruled in favor of enforcement of the settlement against The Tax Authority. TORTS State agency immune for crash on road shoulder The shoulder of a highway is not part of the highway and thus falls outside the highway exception to governmental immunity, the Michigan Supreme Court ruled on May 31. Grimes v. Michigan Department of Transportation, No. 127901. While traveling in the far left lane on Interstate 75 in Michigan, Alan Thisse’s car was forced onto the highway’s shoulder, which was made up of a paved portion of the same grade as the travel lane and a two-foot-wide strip of gravel. Thisse lost control of his car, and crashed into a car driven by Michael Grimes, rendering Grimes a quadriplegic. Grimes sued the Michigan Department of Transportation in state court, alleging negligence in its maintenance of the shoulder. The department asserted government immunity and moved for summary disposition, arguing that the shoulder fell outside the scope of the highway exception because it was not an improved portion of the highway designed for vehicular travel. The trial court denied the motion. An intermediate appellate court affirmed, holding that a shoulder is part of the improved portion of the highway designed for vehicular travel. The Michigan Supreme Court reversed, denying that a shoulder is “designed for vehicular travel.” A shoulder may be capable of supporting some form of vehicular traffic, but it is not a travel lane and it is not “designed for vehicular travel.” The highway exception only applies to areas “designed for vehicular travel.”

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