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BANKRUPTCY Public entitled to list of fallen judge’s creditors A list of attorneys who loaned money to a judge who indulged a gambling addiction may not be withheld from the public under a provision intended to protect parties from being cast in a “scandalous” or “defamatory” light, the 8th U.S. Circuit Court of Appeals ruled on Aug. 29. In re Neal, No. 06-1878. After being caught in a raid on a casino, Kansas City, Mo., Municipal Court Judge Deborah Alice Neal confessed to a gambling addiction and to taking but not disclosing loans from local attorneys. Amid the resulting scandal, she denied granting favors in return, but pleaded guilty to federal charges of mail fraud and nondisclosure and drew a prison term. She also disclosed a list of the attorneys as creditors in her Chapter 7 bankruptcy. A federal bankruptcy judge sealed the list on the ground it might harm the reputations of the attorneys and violate the confidentiality of state disciplinary investigations of the attorneys. A U.S. district judge granted a motion by the Kansas City Star and overruled the bankruptcy judge. The 8th Circuit affirmed the district court. The law strongly favors openness of court records, although it seeks to prevent filings from being used to cast slurs on people. Here, the list was made to help the court resolve Neal’s bankruptcy. “The unintended, potential secondary consequence of negative publicity to attorney creditors is regrettable but not a basis for sealing the filing,” the court said. The shield for attorney disciplinary proceedings covers only those proceedings, not bankruptcy filings.   Full text of the decision Mortgage lender shield hinges on meaning of ‘is’ A safeguard for home mortgage lenders in bankruptcy proceedings does not apply if the mortgage covers a multi-unit building and if the debtor lives in one unit and rents out another, the 3d U.S. Circuit Court of Appeals ruled on Aug. 28. In Re: Scarborough, No. 04-4298. Frances Scarborough took out a mortgage on her Philadelphia duplex when she bought it in 1988. The debt was secured with liens against the property and income from the rental unit. After filing for Chapter 13 bankruptcy in 2001, she attempted to shift a portion of the debt to unsecured status. The federal bankruptcy judge refused, citing U.S. Bankruptcy Code �1322(b)(2). The provision, which was intended to encourage lenders to enter the home-lending market, bars modification of such debts when the property at issue “is the debtor’s principal residence.” A federal trial judge affirmed. The 3d Circuit reversed, in a matter of first impression that hinged on the meaning of the word “is.” “By using the word ‘is’ in the phrase ‘real property that is the debtor’s principal residence,’ Congress equated the terms ‘real property’ and ‘principal residence,’ ” the 3d Circuit explained. “ Put differently, this use of ‘is’ means that the real property that secures the mortgage must be only the debtor’s principal residence in order for the anti-modification provision to apply.” CIVIL RIGHTS T-shirt wasn’t offensive enough to merit sanction A middle school in Vermont violated a seventh-grader’s free-speech rights when it censored his T-shirt lambasting President Bush as a “chicken hawk” and substance abuser, the 2d U.S. Circuit Court of Appeals ruled on Aug. 30. Guiles v. Marineau, nos. 05-0327-cv(L) and 05-0517-cv(XAP)10 . Zachary Guiles often came to school wearing a shirt, which, among other insults, superimposed Bush’s head on a picture of a chicken’s body, with one wing holding a martini glass and the other a straw for snorting cocaine; three lines of cocaine also were pictured. After another student and her mother complained, school authorities concluded that the garment violated a dress code ban on drug and alcohol references. The boy was disciplined. A U.S. district court judge in Vermont concluded that the images were “plainly offensive” as defined in the U.S. Supreme Court ruling in Bethel School District No. 403 v. Fraser, but that the school had violated Guiles’ free-speech rights by censoring the word “cocaine.” Both sides appealed. The 2d Circuit ruled for Guiles on both points. The images of the martini glass and cocaine may have been in poor taste, but they are not “plainly offensive,” like the sexually charged innuendo at a graduation ceremony at issue in Fraser, the court said. Rather, the images constituted a constitutionally protected anti-drug message. Moreover, the shirt caused no disruption to the school’s mission, so the censorship of the shirt’s message was “unwarranted.” The panel rejected the 6th U.S. Circuit Court of Appeals precedent in Boroff v. Van Wert City Board of Education, which granted schools broad authority to suppress speech “inconsistent with its basic educational mission.” CRIMINAL PRACTICE Officer guessed right about driver’s identity A police officer was justified in pulling over a pickup truck after a computerized vehicle check revealed that its owner had a suspended driver’s license and was the same sex as the driver, the Maine Supreme Judicial Court ruled on Aug. 28. State v. Tozier, No. 2006 ME 105. The officer saw the truck drive by, noticed the driver was male and ran a registration check. He learned that the owner was Donald Tozier, whose license had been suspended. He pulled over the truck, identified the driver as Tozier, and cited him for driving with a suspended license. A trial court granted Tozier’s motion to suppress all evidence from the stop, holding that articulable suspicion did not exist solely because a vehicle owned by a suspended driver was being operated on a public road by a driver who was of the same sex as the owner. The Maine Supreme Judicial Court, the state’s highest, reversed. “Although it is possible that a driver under suspension could register a vehicle and that others of the same gender could drive it, it is reasonable for an officer to suspect that the owner is driving the vehicle, absent other circumstances that demonstrate the owner is not driving,” the court said. Police peeked through the back windows Police did not violate a homeowner’s rights by entering his house without a warrant after looking through a window and seeing a teenager passed out drunk with what looked like blood on his hands, the 6th U.S. Circuit Court of Appeals ruled on Sept. 1. Hardesty v. Hamburg Township, No. 05-1346. Police staked out a house after 2 a.m. after arresting an underaged girl for drunken driving nearby. They watched the dark house for some two hours, and then knocked on the door and tried to telephone but got no response. They entered a back deck and peered through a window, spotting beer cans and the unresponsive teenager. They used a garage door opener they found in a parked car to enter the house and made three arrests for underage possession of alcohol. The prosecutions collapsed after a Michigan state trial judge ruled the entry illegal. The homeowner filed a federal civil rights complaint, but a U.S. district court judge dismissed that case. The 6th Circuit affirmed, saying that the police could knock on the back door after their attempts to talk to someone at the front door failed; the medical emergency doctrine also permitted entry. A dissent questioned the exigent circumstances, given the long stake-out and that the blood actually was scabs. “To allow officers effective access to the entire home merely based on non-responsiveness to a knock at the front door flies in the face of the historic privilege extended to curtilage,” the dissent said. GOVERNMENT Records of sex assault must be made public The father of a child victim of sexual assault cannot be denied access to records relating to his daughter’s case on the ground that in identifying her by name he violated her right against public disclosure, the Washington Supreme Court ruled on Aug. 31. Koenig v. City of Des Moines, No. 75889-1. The father of minor Jane Doe tried repeatedly to secure Des Moines, Wash., police records concerning the sexual molestation of his daughter, reportedly by her stepfather, using her real name and case number. He eventually brought suit to compel production. The city secured an injunction to shield its records from production. Later, a state trial judge ordered the records released subject to redaction of the victim’s name, address and relationship to the assailant. An intermediate state court of appeals affirmed, but ordered the additional redaction of “sexually explicit descriptive information” concerning the crime. Affirming in part, the Washington Supreme Court said the plain language of the statute in place at the time shields identifying information of child victims of sexual assault-defined as the child victim’s name, address, location, photograph and, in some cases, the relationship between the child and the assailant-but not the entire record. The court overruled the lower appellate court regarding disclosure of the details of the crime and said that the father was entitled to attorney fees and statutory damages of up to $100 for each day he was denied the records. In a case that attracted considerable attention from groups representing victim advocates, the news media, prosecutors and civil libertarians, the dissent argued that acceding to a request using a minor’s real name necessarily makes her identity public. IMMIGRATION LAW Cultural ignorance cited in asylum ruling reversal Fed up with immigration judges’ credibility findings in asylum cases when they do not know enough about the home country, the 7th U.S. Circuit Court of Appeals on Aug. 28 again urged the hiring of asylum experts to testify about relevant aspects of other nations’ cultures. Kantoni v. Gonzales, No. 05-4135. Tomadjah Kantoni sought asylum citing numerous threats and attacks that she attributed to her political differences with the leadership of her home country, Togo. An immigration judge ruled that she had failed to prove persecution based on her political views. The Board of Immigration Appeals affirmed. Reversing, the 7th Circuit cited numerous errors by the immigration judge, including that he viewed her claims in isolation instead of as a pattern and betrayed ignorance of Togolese culture. “If immigration judges want to base their findings on insights into the political or military or social culture of the asylum seeker’s country, that is fine, but they must indicate a knowledge of the culture,” the court said. “We repeat our recent suggestion that an asylum equivalent of the Social Security Administration’s vocational experts be retained to testify about relevant aspects of national culture.” INTERNATIONAL LAW Sudan must go to trial on Cole bombing claims Sudan’s alleged material support for al-Queda’s attack on the U.S.S. Cole gave a federal district court jurisdiction over a lawsuit by relatives of the victims, the 4th U.S. Circuit Court of Appeals held on Sept. 1, citing the terrorism exemption to the Foreign Sovereign Immunities Act. Rux v. Republic of Sudan, No. 05-2003. Sudan cited the act in moving to dismiss claims by the survivors of the 17 service members who died in the Oct. 12, 2000, bombing of the warship in Yemen. The law says that foreign governments cannot be sued in U.S. courts, but allows lawsuits against state sponsors of terrorism, defined as lending “material support or resources.” A federal trial judge in Virginia’s Eastern District rejected Sudan’s motion to dismiss. Sudan asked the 4th Circuit to exercise pendant appellate jurisdiction and throw out the case. The 4th Circuit affirmed, citing evidence that Sudan provided al-Queda with extensive financial and logistical aid, including use of diplomatic pouches to ship explosives. It rejected Sudan’s argument that “safehouse” should be defined narrowly under the exemption, following the D.C. Circuit precedent involving the bombing of U.S. embassies in Africa. The court said “it is entirely consistent with this definition to construe the statutory term to include the making available of locations within a country that serve as a base of operations for terrorists.” LABOR AND EMPLOYMENT Arbitrator’s employee reinstatement stands An arbitrator’s finding that a firing was not for “just cause” trumps a provision in a union contract allowing the “immediate discharge” of employees who engage in sexual harassment, a divided 10th U.S. Circuit Court of Appeals ruled on Aug. 29. LB&B Associates Inc. v. International Brotherhood of Electrical Workers Local No. 113. No. 05-1110. The company sought to invoke the provision against an employee accused of harassing a female worker. The contract also allows for arbitration of employee grievances. On the union’s initiative the matter went to an arbitrator, who ruled that the company lacked good cause to fire the employee because he had a good record and could be rehabilitated. A U.S. district court judge in Colorado refused the company’s request to vacate the arbitration award, which included reinstatement and back pay. The 10th Circuit affirmed ruling, 2-1, that the arbitrator’s finding that the “just cause” provision applies to all discharges was a “plausible reconciliation” of conflicting contract provisions. The court followed the 3rd and 6th circuits on the point; the 11th Circuit has ruled that a violation of a specific provision authorizing discharge is de facto just cause for termination, mandating vacation of an arbitrator’s award to the contrary. MEDIA LAW Label of ‘informer’ is found not defamatory A newspaper’s description of a radio executive and spokesman as an “informer” was not defamatory, the District of Columbia Court of Appeals ruled on Aug. 31. Clawson v. St. Louis Post-Dispatch, No. 04-CV-486. For her article on the 2001 anthrax postal attacks, St. Louis Post-Dispatch reporter Karen Branch-Brioso interviewed Patrick Clawson, a radio executive and self-described broadcaster, investigative reporter and private investigator. In the article, Branch-Brioso described Clawson as a “1970s-era St. Louis journalist turned private eye turned FBI informer.” Clawson sued for defamation, arguing that the story was libelous because referring to him as an “informer” instead of a “whistleblower” destroyed his reputation. A trial judge dismissed the case, holding that labeling one an “informer” was not defamatory. Affirming, the Court of Appeals, the highest court in the capital district, ruled that, taken in context, the article’s reference to Clawson as an informer did not libel him. Relying on precedent from other jurisdictions and dictionary definitions, the court held that calling one an informer was not defamatory. “Nothing in these definitions remotely suggests that an informer or a citizen informant is perceived as ‘odious, infamous and ridiculous,’ ” the court said, applying a standard derived from District of Columbia case law. REAL PROPERTY Duty to warn clarified in soil subsidence action A builder can be sued for failing to disclose to a homebuyer anything he knows about potential problems with the property, even if it concerns land not directly at issue in the transaction, the Utah Supreme Court ruled on Sept. 1. Yazd v. Woodside Homes Corp., No. 20050444. Woodside Homes sold Ali Yazd and Parvin Yousefi a home near a parcel where soil conditions had been deemed unsuitable for constructing a large Mormon church. It was not clear that the company had seen a soil study to that effect, but it conducted its own study and graded its property to correct problems that it uncovered before constructing the Yazd-Yousefi house. The effort failed to completely fix the problems, and the house eventually sank into unstable soil. The homeowners sued Woodside for fraudulently concealing what it knew about soil conditions. A Utah trial court granted Woodside summary judgment; an intermediate state court of appeals reversed. The Utah Supreme Court affirmed the reversal of summary judgment, ruling that a seller has a duty to disclose to a buyer “material” information about a property’s suitability. Conceding that its earlier pronouncements on the point had been vague, the court offered this definition: “To be material, the information must be ‘important.’ Importance, in turn, can be gauged by the degree to which the information could be expected to influence the judgment of a person buying property or assenting to a particular purchase price.” That includes “property other than that conveyed to the buyer, when that information is material to the condition of the property purchased by the buyer,” the court continued. It remanded the matter for findings of fact on whether the builder knew about the original soil study and its materiality to the Yazd-Yousefi claim.

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