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APPEALS Payments were bribes, not marks of friendship Alleged infirmities in jury instructions regarding the distinction between friendly gifts and bribery were deemed insufficient to reverse wire fraud and conspiracy convictions involving attempts to bribe a Rhode Island legislative leader, the 1st U.S. Circuit Court of Appeals held on Sept. 8. USA v. Potter, No. 05-2676. A Rhode Island federal grand jury indicted Nigel Potter, Daniel Bucci and LPRI LLC, a Rhode Island gambling facility operator, for conspiring to deprive the citizens of Rhode Island of their right to honest services and for wire communications violations for purposes of executing the scheme. Subsequently, they were convicted of wire fraud and conspiracy. The alleged scheme was to bribe then-speaker of the Rhode Island House of Representatives, John Harwood, to influence state legislation in ways favorable to LPRI. Brucci, LPRI’s general manager, had pressed Potter, the CEO of LPRI’s parent company, Wembley PLC, to make millions of dollars in payments to Harwood’s law firm partner, Daniel McKinnon, who also represented LPRI on zoning matters. The 1st Circuit affirmed, rejecting the claim that the jury instructions had failed to distinguish clearly “between forbidden efforts to deprive the public of honest services and permissible efforts . . . merely to express friendship and assure a warm welcome.” The defendants sought an instruction that would say what conduct would not be a theft of honest services. Here, where the scheme was “aimed at providing millions of dollars in which Harwood would share, no jury could rationally believe that this was merely to cultivate friendship.”   Full text of the decision CIVIL PRACTICE Date of order, not date it was recorded, is critical An appeal from an order of condemnation entered by a probate court must be filed within 30 days from the date of the order, the Alabama Supreme Court found on Sept. 8. In re Boutwell v. State, No. 1050299. An Alabama probate court ordered the condemnation of land owned by James Craig Boutwell, signing the order on Jan. 26, 2004. The following day the order was recorded in the probate minutes and notice of his right to appeal was mailed to Boutwell. On Feb. 26, 2004, Boutwell filed a notice of appeal in the probate court. The state circuit court dismissed the action and denied Boutwell’s motion to reconsider. An Alabama intermediate appellate court reversed, finding that the order was made when it was recorded in the probate minutes. The Alabama Supreme Court reversed. Ala. Code � 18-1A-282 (1975) states that “[a]ny of the parties may appeal from the order of condemnation to the circuit court of the county within 30 days from the making of the order of condemnation.” The court determined that the “making of the order of condemnation” is “from the date of” the order and not from the date the order is recorded in the probate court. CONSTITUTIONAL LAW Ministerial exception bars discrimination suit The ministerial exception bars the discrimination lawsuit brought by a female chaplain fired from her Catholic university job, the 3d U.S. Circuit Court of Appeals ruled on Sept. 6. Petruska v. Gannon University, No. 05-1222. Lynette Petruska was hired as Gannon University’s first female chaplain. Subsequently, a female employee accused the university president of sexual harassment. Petruska was instrumental in bringing the claim to the attention of the chair of the board of trustees. The president was eventually forced to resign. Later, Petruska herself quit after her contract was revised to take away some of her duties. Petruska sued for sex discrimination and retaliation. A Pennsylvania federal court dismissed the suit, holding that under the ministerial exception, a religious institution cannot be sued under federal anti-discrimination laws. The 3d Circuit reversed, holding that the ministerial exception applies only when the alleged discrimination somehow relates to the religious beliefs, doctrine or internal regulations of a church. The opinion was written by the late Judge Edward Becker. After Becker’s death, Gannon sought rehearing en banc or before a reconstituted panel. The reconstituted 3d Circuit panel reversed, ruling that the ministerial exception prevents lawsuits that challenge a religious organization’s ability to choose who will perform particular spiritual functions on its behalf. Petruska’s job as chaplain was ministerial in nature and Gannon was exercising its First Amendment religious freedoms in deciding she was not appropriate for the job anymore. University can’t exempt itself from state law A state university’s effort to declare its no-firearms policy constitutional was rejected by the Utah Supreme Court on Sept. 8. University of Utah v. Shurtleff, No. 20030877. The University of Utah sued the Utah attorney general, seeking a declaration that its policy of forbidding possession of firearms on campus is not illegal. A Utah trial court granted summary judgment to the university. The attorney general appealed. The Utah Legislature then passed a law forbidding a local authority or state entity, including a university, from enforcing any firearms policy that in any way inhibited their possession or use on public or private property. The university contended that the statute was unconstitutional because the university enjoys institutional autonomy under the Utah Constitution. The Utah Supreme Court reversed, holding that the Utah Constitution does not confer institutional autonomy to the university such that it need not abide by state law. The high court held that the Legislature is the only entity authorized to enact legislation defining the lawful use of arms in Utah. The state constitution affirms the Legislature’s right to control and supervise the higher education system. CRIMINAL PRACTICE No privacy expectation on license plate numbers A motorist has no reasonable expectation of privacy in his license plate number, the 6th U.S. Circuit Court of Appeals ruled on Sept. 5. United States v. Ellison, No. 04-1925. A Farmington Hills, Mich., police officer, seeing a van parked in a shopping center fire lane, ran the van’s license plate number through a police database. The officer followed the van as it left the shopping center because the owner was wanted on an outstanding warrant. Pulling over the van, the officer told the driver, who was not the owner, that he was being stopped for a parking violation. Curtis Ellison, the van’s owner, was in the passenger seat. A police search uncovered two firearms. Ellison was charged with two counts of being a felon in possession of a firearm, but a Michigan federal court threw out the firearms as evidence because they were recovered in an illegal search. The 6th Circuit reversed, ruling that, under the Fourth Amendment, Ellison did not have a reasonable expectation of privacy as to his license plate number. “The very purpose of a license plate number . . . is to provide identifying information to law enforcement officials and others.” Court had no authority to remit restitution A federal district court erred in remitting the restitution it had ordered previously pursuant to the federal Mandatory Victim Restitution Act (MVRA) because the court had no authority to remit the required restitution under the act, the 4th U.S. Circuit Court of Appeals held on Sept. 7. U.S. v. Roper, No. 05-4236. In separate criminal proceedings, Carlton Roper and George Butler were convicted of conspiracy to commit bank fraud and other offenses. As part of their sentences, a federal district court ordered Roper to pay $281,914 in restitution and ordered Butler to pay $110,020. Because it later determined that neither Roper nor Butler would be able to pay the restitution, the district court remitted their restitution. Reversing, the 4th Circuit held that the district court had no authority to remit its previous restitution orders under the MVRA. The court noted that under previous federal law, the Victim and Witness Protection Act of 1982, district courts did have the authority to remit restitution orders. However, this was no longer the case. “[T]he fact that such orders are mandatory counsels strongly against a conclusion that the MVRA impliedly gives the district court the power to remit them.” FAMILY LAW Wife can prevent sale of divorcing couple’s house During a divorce, a court can order the sale of property over one spouse’s objection, but only in exceptional circumstances, the Alaska Supreme Court held on Sept. 8. Watega v. Watega, No. S-11652. Lesley and Craig Watega built a house while married and held it in both of their names. After Craig Watega filed for divorce, the court gave him possession for the divorce proceedings and required him to pay the existing deed of trust note arrearages and make all future payments. He did not do so, and the deed of trust holder threatened foreclosure. Watega petitioned the court to compel sale of the property to his acquaintances, the Drumms. The court granted his motion without a hearing, despite his wife’s opposition. The Drumms moved in, and Lesley Watega asked the court to award her the property based on a quitclaim. Craig Watega had allegedly quitclaimed his interest in the property to his wife. Watega claimed that his execution of the quitclaim deed was the result of duress. The Drumms intervened in the proceedings and received summary judgment when the court deemed them bona fide purchasers. When Lesley Watega refused to execute a deed conveying the property to them, the court issued a final judgment declaring that the Drumms had a valid and enforceable possessory interest. The Alaska Supreme Court reversed, holding that though courts do have the authority to permit the sale of property despite the objection of a party during a divorce, that authority must be exercised for pressing reasons only. Here, no pressing reason existed, so the trial court had abused its discretion when it permitted the sale. Watega’s claim that foreclosure was imminent if sale did not occur did not create an exceptional circumstance justifying compelled sale. GOVERNMENT Public has right to access official’s deposition The public has the right to access a public official’s deposition transcript in litigation against a county, the Montana Supreme Court held on Sept. 6. Yellowstone County v. Billings Gazette, No. 05-019. The Billings Gazette sought public records relating to several lawsuits brought against Yellowstone County in disputes involving the public defender’s office. The county filed a declaratory judgment action to determine what documents it should give the paper. After its specific request for copies of deposition transcripts went unanswered, the Gazette filed a motion to compel. The county finally produced redacted copies of the transcripts. The state trial court ordered the county to produce the documents in full, with authorization to redact five pages from the deposition transcript of an interim chief public defender. Reversing, the Montana Supreme Court found that because the information related directly to the public official’s professional judgment, management decisions and official conduct, the public had a right to the entire transcript of the interim chief public defender, as long as the names of nonparties were withheld to protect their privacy. INTELLECTUAL PROPERTY HBO’s ‘Six Feet Under’ didn’t infringe copyright Time Warner Entertainment and Home Box Office (HBO) did not infringe on the copyright of a screenplay about a family-owned mortuary with its show, Six Feet Under, because the two works were not substantially similar, the 9th U.S. Circuit Court of Appeals held on Aug. 30. Funky Films Inc. v. Time Warner Entertainment Co., No. 04-55578. Gwen O’Donnell and Funky Films Inc. owned the copyright to The Funk Parlor, a screenplay written by O’Donnell about a family-owned mortuary. With O’Donnell’s consent, her chiropractor forwarded the screenplay to an HBO executive. HBO denied that it had access to The Funk Parlor but later produced its own fictional program about a family-owned mortuary, Six Feet Under. O’Donnell and Funky Films sued Time Warner and HBO, claiming copyright infringement. A federal California court granted summary judgment to Time Warner and HBO. Affirming, the 9th Circuit held that, even assuming HBO had access to The Funk Parlor, the two works were not substantially similar enough to support a claim for copyright infringement. Rejecting the use of the lower legal standard of the inverse-ratio rule because HBO had access to their work, the court said, “No amount of proof of access will suffice to show copying if there are no similarities. Additional discovery will not change the fact that the two works lack any concrete or articulable similarities.” LEGAL PROFESSION Envelope used by lawyer did not breach bar rules The envelopes used by a lawyer to mail advertisements to prospective clients, which included references to traffic tickets and the slogan, “Don’t Just Roll Over, Fight Back,” did not violate a Florida Bar rule prohibiting solicitations that reveal the nature of a prospective client’s legal problem, the Florida Supreme Court held on Aug. 31. Florida Bar v. Gold, No. SC04-1661. After obtaining the names of people charged with traffic offenses, attorney Mark Gold solicited them as clients with mailings from his law firm, “The Ticket Clinic.” The envelopes for the mailings contained the name of the firm, a symbol resembling a traffic sign, a drawing of a roadway and the slogan, “Don’t Just Roll Over, Fight Back.” The Florida Bar filed disciplinary charges against Gold for allegedly violating several bar rules in his mailing of the solicitations, including a rule prohibiting solicitations revealing the nature of a client’s legal problem. A referee ruled that application of this rule to Gold would be an unconstitutional restriction on his commercial speech rights. The Florida Supreme Court affirmed, but held that a constitutional analysis was unnecessary because the envelopes did not reveal the clients’ legal problems. “While it is possible that someone seeing the outside of Gold’s brochure might guess that the recipient was being targeted by a law firm, there is nothing that would lead inescapably to the conclusion that the recipient had indeed been charged with a particular offense.” TORTS Res ipsa loquitur theory wrongly used for JNOV The doctrine of res ipsa loquitur, or “the thing speaks for itself,” though usable in products liability suits, was misapplied by the lower courts because the possibility that an accident was caused by the actions of others could not be excluded, the Louisiana Supreme Court ruled on Sept. 6. Lawson v. Mitsubishi Motor Sales of America Inc., No. 05-CC00257. Kelli Lawson broke both of her thumbs and injured her right wrist when the driver-side air bag in her 1996 Mitsubishi Galant deployed after she honked the horn. Lawson brought a products liability suit against the manufacturer and its insurer. At trial, it was determined that the air bag system is controlled through the use of a clock spring mechanism. Following the accident, the clock spring was removed from the car but its position prior to removal was not marked, making it impossible to determine whether it had been misaligned during the car’s assembly. A state trial jury returned a verdict in favor of the defendants. Invoking the doctrine of res ipsa loquitur, which allows an inference of negligence to arise from the common experience of the fact-finder that a particular accident would not have occurred in the absence of negligence, the court granted Lawson’s motion for a judgment notwithstanding the verdict (JNOV) on the issue of liability and ordered a new trial on the issues of causation and damages. An intermediate appellate court affirmed the JNOV and found in favor of Lawson on the issues of causation and damages, awarding her more than $1 million in damages. The Louisiana Supreme Court reversed and reinstated the jury verdict. Res ipsa loquitur applies when there is no direct evidence but the circumstances surrounding an event are so unusual as to allow a fact-finder to conclude that the defendant was negligent. The court said that it didn’t apply in this case because the direct evidence of a possible manufacturing defect was tampered with when the position of the clock spring was not marked prior to its removal. The clock spring could have been accessed by a third party.

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