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ADMINISTRATIVE LAW Slow driving did not justify traffic stop Agreeing that a driver’s license should be reinstated, the North Dakota Supreme Court found on June 29 that traveling at a slower pace than usual did not justify the traffic stop that ultimately resulted in the driver’s arrest for driving under the influence of alcohol (DUI). Johnson v. Sprynczynatyk, No. 20050449. A police officer stopped a vehicle being driven by Robert Johnson because it was traveling at eight to 10 miles per hour in a 25 mph zone. The officer noticed the smell of alcohol and Johnson’s bloodshot eyes. After administering five field sobriety tests, all of which Johnson failed, the officer arrested Johnson for DUI. A hearing officer suspended Johnson’s driver’s license for 91 days. A trial court reversed and reinstated Johnson’s driving privileges. Affirming, the state Supreme Court ruled that the officer had no reasonable and articulable suspicion to stop Johnson’s vehicle for DUI or other illegal activity. Johnson was not exhibiting erratic driving or sharp veering, and there was no minimum speed limit on the road.   Full text of the decision CIVIL RIGHTS Off-duty jailer was nevertheless a ‘cop’ Although off duty and out of uniform, a county jail commander was operating under the color of state law when he allegedly attacked another driver after an automobile accident, and therefore can be liable for damages, the 9th U.S. Circuit Court of Appeals ruled on June 26. Anderson v. Warner, No. 04-15505. Thomas Anderson was participating in a parade when he rear-ended an antique pickup driven by Charles Warner, an off-duty sheriff’s lieutenant who ran the county jail. Warner allegedly began punching Anderson, identified himself as “a cop” and instructed the crowd to move back while he prevented Anderson from leaving. Anderson sued Warner and Mendocino County, Calif., under 42 U.S.C. 1983, alleging civil rights violations. A district court granted summary judgment to Warner and the county, holding that he was a “custodial officer” rather than a “peace officer.” Reversing in part, the 9th Circuit said it was enough that Warner abused his status as a law officer. The court noted that he invoked his status as a “cop” and that the bystanders obeyed him. ” ‘Cop’ is a generic, non-technical term,” the court said. “ It can, of course, refer to a ‘peace officer’ under California law. But it can also encompass and refer to Warner’s status as a ‘custodial officer.’ “ EMPLOYMENT LAW Discrimination claim survives technical error When an employer has actual notice of a discrimination charge against it and chooses to respond to the Equal Employment Opportunity Commission (EEOC) on the merits of the claim without challenging technical deficiencies in the charge, the employer waives its right to later seek dismissal over the failure, the 3d U.S. Circuit Court of Appeals ruled on June 30 in a matter of first impression. Buck v. The Hampton Township School District, No. 05-2373. Kathleen Buck was a school district secretary who who alleged that a new superintendent unfairly forced her to quit or be fired. Although she filed a charge with the EEOC against the school board, she did not follow the verification requirements by signing it “under penalty of perjury.” Nonetheless, the school board and the superintendent filed a joint response denying that Buck had been discriminated against. The EEOC issued Buck a right-to-sue letter, but a Pennsylvania federal district judge dismissed the complaint for lack of subject-matter jurisdiction, concluding Buck had not complied with the verification requirements. The 3d Circuit agreed that since the verification requirements were mandatory, Buck’s charge was deficient. The court added, however, that the requirements were equitable in nature, intended to protect employers from having to respond to unverified complaints. They are not jurisdictional requirements, so when an employer files a response on the merits without contesting the technical failure of the charge, it waives its right to later seek dismissal for that failure. FAMILY LAW ADA does not apply in child dependency cases In a case of first impression in the state, the Rhode Island Supreme Court held on June 30 that the federal Americans With Disabilities Act (ADA) does not apply to parental rights termination proceedings. In re Kayla N., No. 2003-400. Dawn and Irving N., two adults suffering from mild mental retardation, appealed the termination of their parental rights to their daughter, Kayla. Dawn and Irving argued that a family court judge erred in holding that the ADA does not apply to family law proceedings. Quoting a Florida intermediate state appellate court, the Rhode Island high court said that parental rights termination proceedings were “held for the benefit of the child, not the parent. Therefore, the ADA is inapplicable when used as a defense by the parent(s) in proceedings such as here under review.’ “ GOVERNMENT Court-appointed referee not a public employee A private-practice lawyer appointed by a court to supervise a foreclosure sale is an independent contractor, not a state employee, the New York Court of Appeals ruled on June 29. In the Matter of Stephen L. O’Brien, No. 94. As part of a property foreclosure proceeding, a trial court named Stephen O’Brien to serve as a referee to supervise sale of the property. The property owner sued in federal district court alleging the foreclosure and sale violated his rights. The New York state attorney general refused to represent and indemnify O’Brien, saying that he was an independent contractor and not entitled to either a defense or indemnification under state law. A trial judge agreed to annul the attorney general’s decision, and an intermediate state appeal court agreed. The Court of Appeals, New York’s highest court, ruled that state law requires the attorney general to provide a defense for an “employee,” meaning “any person holding a position by election, appointment or employment in the service of the state.” As an independent contractor who worked without close supervision, set his own hours, and was not subject to state tax withholding or workers’ compensation coverage, O’Brien was specifically excluded from coverage. Unambiguous waiver of immunity is required Language in state statutes, local ordinances, city charters or municipal bylaws that a government entity can “sue or be sued” or “plead or implead” do not, by themselves, waive an entity’s immunity from lawsuits, a divided Texas Supreme Court ruled on June 30. Tooke v. City of Mexia, No. 03-0878. Mexia, Texas, awarded a contract to Judy Tooke’s company to collect brush and leaves. After the first year, the city notified Tooke that it was canceling the contract because of budget problems. Tooke sued in state court for breach of contract. The trial court rejected the city’s assertion that it was immune from suit, finding that as a home-rule city, Mexia could “plead and be impleaded in any court.” An intermediate appeals court reversed, saying that the contract covered a governmental function and that Mexia had not waived immunity. In affirming, the state Supreme Court majority overturned its own 1970 precedent. It noted that language about suing and pleading can mean that the entity has waived immunity, but also simply that it has the capacity to sue and be sued in its own name. Clear legislative intent is required to waive immunity from suit. The court noted that the Legislature had recently required a clear waiver of immunity, and said that language should be applied retroactively. INSURANCE LAW Uninsured driver policy limits are restricted “Limit-to-limit” restrictions on underinsured motorist (UIM) policies constitute illegal reducing when, because of injury to a third party, they mean that the injured policyholder will recover less than her total damages, the Wisconsin Supreme Court ruled on June 30. Welin v. American Family Mutual Insurance Company, No. 2004AP1513. A driver caused an auto accident that injured her passenger and the driver of another car. The first driver carried $300,000 in insurance; the second driver, Alison Welin, had a $300,000 UIM policy. She suffered $300,000 in damages; the passenger suffered $50,000. Welin’s insurer argued that because the first driver’s insurance limit equaled Welin’s, the first driver was not an underinsured motorist, so the company did not have to pay its share of Welin’s damages. The trial and intermediate appeals courts agreed with the insurer. Reversing, the state Supreme Court said that argument would apply only if the policyholder recovered her full damages. In cases like Welin’s, with more than one claimant against the other driver’s policy, “a definition of an underinsured motor vehicle that compares the injured person’s UIM limits to the limits of a tortfeasor’s liability policy without regard to the amount the injured person actually receives from the tortfeasor’s insurer is invalid” under Wisconsin law. LABOR AND EMPLOYMENT Union granted a role in mine disaster inquiry The United Mine Workers of America may represent employees in the investigation of the explosion that killed 12 miners at a nonunion coal mine at Sago, W.Va., the 4th U.S. Circuit Court of Appeals ruled on June 28. Department of Labor v. Wolf Run Mining Co. Inc., No. 06-1129. Federal law permits mine workers to participate in the Mine Safety and Health Administration investigation of the Jan. 2 disaster, and two employees designated the union as their agent. The mine owner objected because the union had no collective bargaining agreement at the facility. A federal judge ordered the mine to cooperate with the union all the same. The 4th Circuit said there was nothing to block the union under the circumstances. “Despite the potential problems created by the designation of the [union] as a miners’ representative, we can find no legal limitation in the statute or the regulations that deny such an organization from representing two or more miners as a miners’ representative,” the court said. All of trooper’s children to share death benefits Finding the Nebraska State Patrol Retirement Act ambiguous, the Nebraska Supreme Court ruled on June 23 that the noncustodial minor children of a state trooper were entitled to their share of his retirement death benefit. Zach v. Eacker, No. S-05-290. Mark Zach, a Nebraska state trooper, died on Sept. 27, 2002, and was survived by his wife, Loree Zach, and seven children under the age of 19. Four of the children had lived with Mark and Loree, while the other three lived with their mother, Patti Eacker, Mark’s former wife. Loree applied with the Nebraska State Patrol Retirement System (NSPRS) for benefits for her four children and began receiving 100% of Mark’s death benefits. Soon thereafter, Eacker applied for benefits on behalf of her three children, and an NSPRS director found that the benefit must be divided equally among Mark’s seven children. The Public Employees Retirement Board denied Loree’s appeal. The Nebraska trial court affirmed. Nebraska law provides that upon the death of an officer before retirement, benefits go “[t]o the surviving spouse, regardless of the length of time the spouse and officer had been married, and dependent child or children of the officer under the age of nineteen years in such spouse’s care,” and also to any child of the officer under the age of 19. Affirming the lower court’s decision, the Nebraska Supreme Court concluded that excluding Mark’s three minor children from a previous marriage would be inconsistent with the legislative intent behind the statute of providing for all survivors. LEGAL PROFESSION Judge’s pay can’t be cut following his re-election A trial court erred in allowing a judge’s pay to be lowered following his re-election to a new term, the Maine Supreme Judicial Court held on June 28. Because the judge’s service had been continuous, reducing his pay violated the Maine Constitution. Voorhees v. Sagadahoc County, No. 2006 ME 79. John Voorhees was an elected, part-time probate judge in Sagadahoc County, Maine. After Voorhees had served several years, Sagadahoc County decided to lower the pay of part-time elected officials. He sued, citing the state constitution’s compensation clause, which forbids pay cuts for officials continuing in office without interruption. A trial judge agreed with the county that his re-election and commencement of his new term constituted an interruption. Reversing, the state’s highest court held that the constitution’s “continuance in office” requirement includes multiple terms. “Voorhees has remained in the office of probate judge since 1992,” the court said. “He has been continuously reelected since that time and has never relinquished his office. For these reasons, Voorhees has continued in office for the purposes of the Compensation Clause, and therefore, his compensation may not be reduced.” Prosecutor reinstated in controversial case No appearance of impropriety requires the recusal of a district attorney who campaigned on a promise to “do the right thing” in a controversial homicide case, a split Colorado Supreme Court ruled on June 26. In the Interest of N.R., No. 05SA273. The accused, identified in court records as N.R., 16, was a passenger in a truck driven by an intoxicated Mallory Funaro, 15, when the truck rolled, ejecting Funaro. N.R. left the scene and did not report the accident. Police discovered the wreck two hours later, but Funaro died after 17 days. The sitting district attorney declined to press charges over Funaro’s family’s strong objections. The case became a political issue and the prosecutor was defeated for re-election by Robert Watson, who charged N.R. as a juvenile with the equivalent of second-degree murder and related charges. A trial judge disqualified Watson on the ground of an appearance of impropriety. A narrow majority of the state Supreme Court found that Watson had no “personal or financial interest” or “special circumstances . . . that would render it unlikely that the defendant would receive a fair trial.” In a partial dissent, Justice Michael L. Bender said that the relevant statute unconstitutionally infringed the court’s authority to recuse prosecutors in the interest of justice. In this case, he said, there was a strong inference “that Mr. Watson was somehow beholden to the victim’s family, leading to a political payoff in this case.” Old conviction bars attorney from practice Denying the application to practice law of an attorney long ago convicted of attempted murder, the Arizona Supreme Court held on June 28 that the man has failed to satisfy his burden of showing complete rehabilitation. In the Matter of King, No. SB-03-0152-PR. While working as a reserve deputy constable in 1977, Lee Keller King was indicted on two counts of attempted murder for the shooting of two convicted felons following a barroom argument while off duty. King pleaded guilty to one count of attempted murder and was sentenced to seven years in prison. Four months after he began serving his term in June 1979, the trial court suspended his sentence and placed him on probation. The court set aside his conviction in February 1985. King went to law school and was admitted to the Texas bar. He practiced law in Texas, got married and had children. In 2003, he moved to Arizona to work in his firm’s Phoenix-area office. Although he passed the Arizona state bar examination, the state’s Committee on Character and Fitness denied his application for admission because of the old conviction. The Arizona Supreme Court denied King’s petition for review. In a reapplication for admission six months later, the committee recommended King’s admission to the practice. Rejecting the committee’s recommendation, the state Supreme Court found that King had failed to prove that he has accepted responsibility for his past criminal conduct because he seemed to infer that only circumstances beyond his control prevented him from mounting a successful defense. Furthermore, King has not overcome the weakness that led to the unlawful conduct because he failed to provide evidence to assess whether he has an alcohol addiction problem that may have led to his crime. TRUSTS AND ESTATES Child not entitled to a share of father’s estate Finding no ambiguity in the state’s pretermitted child statute, the Alabama Supreme Court concluded on June 30 that a testator intended to omit a child born after his will was executed. Gray v. Gray, No. 1050143. John Merrill Gray II executed a will in 1981, leaving his entire estate to his wife, Mary, and excluding his two children from a prior marriage. In 1984, John and Mary gave birth to their own child, John Merrill Gray III, identified in court records as Jack. When John and Mary divorced in 1989, the divorce judgment and property settlement included a trust for Jack that consisted of one-half of all assets John received from his mother’s estate. John died in 2004 without having changed his will. Under Alabama law, the divorce prevented Mary from inheriting anything under John’s will. The executor of John’s estate petitioned the Alabama probate court to probate John’s will. The probate court granted Jack’s petition for an order finding that he was entitled to an share of John’s estate. Alabama state law excludes an omitted child from taking from a decedent’s estate if “[w]hen the will was executed the testator had one or more children and devised substantially all his estate to the other parent of the omitted child.” Although John’s children at the time he made his will were children from a prior marriage, and Jack-the omitted child in this case-was not born at the time the will was executed, the state Supreme Court ruled, 5-3, that it would be an impermissible judicial rewriting of the statute to infer that John might not have wanted to exclude Jack based under the circumstances. “The fact that John’s other children were from a prior marriage is immaterial,” the court said.

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