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CONSTITUTIONAL LAW Videotaped testimony violated Constitution A trial court’s admission into evidence of a videotaped interview of an alleged child molestation victim without giving the defendant to opportunity to cross-examine was an unconstitutional violation of the confrontation clause, the Idaho Supreme Court held on Aug. 11. State v. Hooper, No. 31025. Darren Hooper was convicted of lewd conduct with a minor regarding sexual contact with his 6-year-old daughter. At trial, the daughter was too scared to testify, so the judge admitted into evidence a videotaped interview of the child in lieu of live testimony. Hooper was convicted, but appealed, arguing that admitting the videotape without giving him the opportunity to cross-examine the child violated his rights under the confrontation clause of the Sixth Amendment to the U.S. Constitution. Reversing, the Idaho Supreme Court held that the videotaped interview constituted a testimonial statement, making its admission without opportunity to cross-examine a violation of the confrontation clause under the U.S. Supreme Court’s opinion in Crawford v. Washington. “This is not to say, however, that the only permissible method of child testimony is a live, in-court presentation at trial. What is necessary is an opportunity for cross-examination. Trial courts may be able to formulate alternatives that accommodate a child’s capabilities and fears while also protecting the accused’s constitutional rights.”   Full text of the decision New York City’s subway baggage search rule OK New York City’s policy of randomly searching subway baggage does not violate train riders’ Fourth Amendment rights, the 2d U.S. Circuit Court of Appeals ruled on Aug. 11. MacWade v. Kelly, No. 05-6754. After uncovering plots in 1997 and 2004 to blow up various parts of the New York City subway system, and after subways in Madrid and Moscow were bombed in 2004 and 2005, New York police initiated the Container Inspection Program that allowed them to conduct random searches of passengers’ bags at checkpoints near station-entrance turnstiles. Supervisors ordered searches of baggage, depending on time and crowds, and officers announced that searches were to be voluntary. Five subway riders subjected to searches within the program’s first two weeks sued to stop it. A New York federal court, after hearing testimony from three security experts, ruled that the program was constitutional under the special-need exception for warrantless searches under the Fourth Amendment. The 2d Circuit affirmed, holding the program to be reasonable because: (1) preventing a terrorist attack on the subway is a special need; (2) that need is weighty; (3) the program is a reasonably effective deterrent; and, (4) that even though searches intrude on a full privacy interest, they do so to a minimal degree. CONTRACTS Vehicle title obtained by fakery isn’t transferable A thief who acquired a vehicle using a counterfeit check cannot validly convey title to a bona fide purchaser for value, the Ohio Supreme Court ruled on Aug. 9. Allan Nott Enterprises Inc. v. Nicholas Starr Auto, No. 2005-0756. Edward L. Raifsnider purchased a Honda Accord from John and Debra Stone using a counterfeit check and obtained an Ohio certificate of title. Raifsnider sold the car to Nicholas Starr Auto (Starr Auto), which in turn sold it to Allan Nott Enterprises Inc. Nott ultimately sold the vehicle to Bradie Rice. After it was discovered that the vehicle was stolen, Nott returned it to the Stones and voluntarily gave Rice a replacement vehicle. When Starr Auto refused to reimburse Nott for the cost of the vehicle, Nott filed suit. The state trial court granted summary judgment in favor of Starr Auto. An intermediate appellate court affirmed. The Ohio Supreme Court reversed. Agreeing with case law holding that a thief cannot pass title of a stolen vehicle to even a good-faith purchaser, the state Supreme Court determined that stolen vehicles include thefts by deception, recognizing that the purpose of Ohio’s Certificate of Motor Vehicle Title Act is “[t]o prevent the importation of stolen motor vehicles and thefts and frauds in the transfer of title to motor vehicles.” The court concluded that valid title remained with the Stones, and Nott had a valid claim against Starr Auto. ELECTION LAW Initiative process usable to repeal existing laws The state constitutional provision allowing citizens to “propose measures” for a statewide vote extends to initiatives to repeal existing laws, the South Dakota Supreme Court ruled on Aug. 9. Brendtro v. Nelson, nos. 24139 and 24162. After a failed attempt to institute video lottery in South Dakota in the 1980s, a constitutional amendment allowing for it was put on a referendum that voters approved in 1994. A measure to repeal video lottery was defeated by voters in 2000, but in 2006 activists gathered enough signatures seeking to get “An Act to Repeal the Video Lottery” placed on the ballot. Similarly, a few years after the state Legislature approved a 4% sales tax on wireless telecommunications, activists got enough petition signatures to get a measure repealing the tax on the 2006 ballot. Relying on a 1995 state Supreme Court case that said initiatives couldn’t be used to repeal existing law, the state attorney general said that the measures were not constitutionally authorized, and the secretary of state said the measures would not appear on the 2006 ballot. The South Dakota Supreme Court overruled the 1995 case and granted a writ of mandamus to have both measures placed on the 2006 ballot. The power of the initiative is clear: The initiative allows the public to propose new laws and repeal current laws that have lost their desirability or necessity. To hold otherwise “would adopt a constitutional interpretation that would effectively relegate the initiative to the most insignificant aspects of our society and lives.” GOVERNMENT Nuisance abatement law violated due process A nuisance abatement ordinance that did not require a hearing prior to a nuisance determination denied property owners procedural due process rights, the Iowa Supreme Court found on Aug. 11. Kistler v. City of Perry, Iowa, No. 44/04-1459. The city of Perry, Iowa, sent Walter and Jean Kistler, the owners of three lots in the city, a notice to remove 12 vehicles located on one of the lots for being a nuisance. The notice did not provide for the opportunity for a hearing, and the city seized the vehicles after the Kistlers failed to have them removed. The Kistlers filed suit for temporary and permanent injunctions and damages. The trial court denied the injunctions and granted the city’s partial motion for summary judgment. The Iowa Supreme Court reversed. Section 50.50 of the city’s ordinance allows an administrative officer, without a due process hearing, to determine whether a nuisance exists and to either use the nuisance abatement procedure or issue a citation. Under the ordinance, “junk vehicles,” broadly defined to include such things as vehicles with broken glass or missing parts, are considered to be a nuisance. There is no evidence that the vehicles in this case were “palpably and undisputably” considered to be a nuisance, which would take them out of notice and hearing requirements. Secret tape of university meeting is public record Under the Wyoming Public Records Act, which allows any person to access public records, a secret recording of a university committee meeting is a public record, the Wyoming Supreme Court found on Aug. 9. Sheaffer v. State, No. 05-211. Corrine Sheaffer, the manager of transportation and parking services at the University of Wyoming, was terminated for “serious misconduct” after the school discovered that one of her subordinates had secretly taped a meeting of the university’s traffic appeals committee. The university denied her request for access to the tape. In response to Sheaffer’s filing of an application for order to show cause as to why inspection of a public record was denied, the trial court concluded the tape was not a public record. The Wyoming Supreme Court reversed. The state Public Records Act defines as a public record a record that is “received . . . in connection with the transaction of public business” and contains an exemption from disclosure for certain public records, including those relating to investigations of violations of internal personnel rules or policies. Because the university took possession of the tape in connection with the transaction of public business-an internal personnel investigation-and the exemption makes clear that records of such investigations are public records, the tape was a public record. LEGAL PROFESSION Filing without notice to adverse party actionable An attorney’s filing of a petition with a court without notice to the adverse party constituted an ex parte communication with the judge, sanctionable by a public reprimand, the Indiana Supreme Court held on Aug. 11. In re Ettl, No. 71S00-0503-DI-118. Attorney Frederick Ettl represented a wife in a marriage dissolution proceeding. Ettl filed a petition for provisional relief, seeking, inter alia, an emergency order granting his client custody of the couple’s minor child. Ettl failed to attempt to serve the husband. As a result, Indiana’s Attorney Disciplinary Commission charged Ettl with violating Indiana Professional Conduct Rule 3.5(b) by engaging in an ex parte communication with a judge. A hearing officer held that the commission had not met its burden of proof, and the commission filed a petition for review to the Indiana Supreme Court. Rejecting the hearing officer’s recommendation, the Indiana Supreme Court held that Ettl’s conduct constituted prohibited ex parte communication and recommended a public reprimand as discipline. “Respondent’s failure to provide notice resulted in a prohibited ex parte communication. If the respondent had attempted to notify the husband, but was not able to locate him, then he should have certified, in writing, to the judge the efforts that he had made in that attempt. If respondent did indeed have legitimate reasons for not giving notice, Trial Rule 65(B)(2) required him to certify to the court, in writing, his claim that notice should not be given and the reasons supporting this claim,” the court said. OK to suspend attorney over petition comments A one-year suspension and a $1,000 fine was an appropriate sanction for an attorney who filed a petition for rehearing in which the attorney used language highly critical of the court and its prior opinion, the Virginia Supreme Court held on Aug. 11. Taboda v. Daly Seven Inc., No. 051094. Attorney D. Stan Barnhill represented Lucky Seven Inc. in a premises liability action. Barnhill drafted a petition for rehearing to the Virginia Supreme Court in which he argued that the court’s prior opinion was “irrational and discriminatory” and that it constituted “dark and ill-conceived jurisprudence.” Among other derogatory comments, Barnhill also wrote, “George Orwell’s fertile imagination could not supply a clearer distortion of the plain meaning of language to reach such an absurd result.” The court directed Barnhill to show cause why it should not impose sanctions against him pursuant to Va. Code Ann. � 8.01-271.1, which prohibited court filings with an improper purpose. Barnhill apologized to the court for his language and requested leniency, citing his public service and lack of prior disciplinary history. Although the Virginia Supreme Court acknowledged Barnhill’s unblemished record during a legal career of more than 20 years, it noted what it called the “very serious nature” of Barnhill’s conduct and the “potential impact of that conduct upon the administration of justice.” Holding that a one-year suspension and a $1,000 fine was an appropriate sanction, the court said, “Barnhill interposed the petition for rehearing for an improper purpose which was to ridicule and deride the Court by the repeated use of intemperate language to express his displeasure with the Court’s opinion.” REAL PROPERTY No compensation over impeded billboard view The owner of billboards along a Los Angeles street was not entitled to compensation from the city of Los Angeles due to the city’s planting of trees that obstructed the view of the billboards, the California Supreme Court held on Aug. 7. Regency Outdoor Advertising Inc. v. City of Los Angeles, No. S132619. In preparation for the 2000 Democratic National Convention, the city of Los Angeles planted palm trees along Century Boulevard in an effort to beautify the major thoroughfare near Los Angeles International Airport. Regency Outdoor Advertising Inc., owner of billboards along the boulevard, sued the city, arguing that, under a theory of inverse condemnation, it was entitled to compensation due to the trees’ obstruction of the view of its billboards and the alleged reduction of their value. Regency argued also that it was entitled to compensation under Cal. Bus. & Prof. Code � 5412, which provided for compensation for billboard owners when their billboards were removed or their maintenance or use limited. A trial court and an intermediate appellate court held for the city. Affirming, the California Supreme Court held that Regency was not entitled to compensation. The court rejected the inverse condemnation theory, holding that there was no right to be seen from the roadway. The court held also that Regency was not entitled to compensation under Section 5412 because the city had not removed the billboards, nor was obstruction of the view its intent in planting the trees. TORTS Boarding school could be liable for sex abuse A boys’ boarding school is a “person” standing “in loco parentis” within the household and can be sued for liability under the Child Sexual Abuse Act, the New Jersey Supreme Court ruled on Aug. 8. Hardwicke v. American Boychoir School, No. A-17-04. Donald Hanson, music director for the American Boychoir School in Princeton, N.J., from 1970 to 1982, sexually abused John Hardwicke daily for five months in 1970 and 1971. At least five other school employees and Hanson’s friends also abused Hardwicke, according to Hardwicke’s 2001 lawsuit. By the time of Hardwicke’s suit, Hanson had been fired following other accusations of sexual abuse. Several other former students related stories of sexual abuse at the hands of other school employees. Hardwicke told the school of his abuse in 1999, but the school did not publicly admit to any past problems until 2000. Hardwicke sought damages under the sexual abuse act from both Hanson and the school. The state trial court dismissed the case against the school because the school, while it qualified as a “household” that stood “in loco parentis” to the students, was not a “person” who could be liable under the statute. An intermediate appellate court reversed that ruling, but affirmed the lower court’s ruling that the school was not immune from suit under the Charitable Immunities Act. The New Jersey Supreme Court reversed on the Child Sexual Abuse Act issue, but affirmed on the Charitable Immunities Act issue. An institution can be a “person” under the act because the legislative history indicates intent to expand the class of active and passive child abusers subject to suit. Additionally, because the school provided “necessary shelter, food, education, recreation, and succor,” it could also stand “in loco parentis” to the students. No statute of limitations delay via discovery rule A plaintiff who knows she’s been injured cannot use the discovery rule to prolong the statute of limitations until the time she says she realizes the full extent of her injuries, the 7th U.S. Circuit Court of Appeals ruled on Aug. 9. Hollander v. Brown, No. 05-3176. While on a business trip as a public relations assistant at a Georgia firm in 1988, Jacque Hollander’s boss beat, raped and psychologically tortured her in his car. Hollander did not tell anyone about the assault, fearing her boss would kill her. In 2000, Hollander was diagnosed with Graves’ disease, an autoimmune deficiency, and in 2003, her physician told her the cause of the disease was the 1988 attack. Hollander sued her former boss and his company in an Illinois federal court in January 2005, alleging false imprisonment, intentional infliction of emotional distress and sexual assault and battery. Hollander insisted that the two-year statute of limitations period should not apply to her case because she did not learn of the correlation between the attack and her disease until 2003. The court dismissed Hollander’s case for being filed too late. The 7th Circuit affirmed, distinguishing Hollander’s case from those involving repressed memories of sexual assault. The court said she had never alleged that she repressed memories or was unaware of some part of her ordeal. She may not have come to realize the full extent of her injuries until years later, but she immediately realized she had suffered injury and so can’t take advantage of the discovery rule.

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