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ATTORNEY FEES No fees for state judge cleared of ethics breach A state judge was not entitled to reimbursement of attorney fees for his successful defense of ethics charges before Florida’s Judicial Qualifications Committee because the Florida Constitution does not authorize such reimbursements, the Florida Supreme Court held on Dec. 7. In re Holder, No. SC03-1171. Gregory Holder, a Florida state judge, was also an officer in the U.S. Air Force Reserves. A few years after Holder had written a paper at the U.S. Air Force War College, an assistant U.S. attorney (also serving in the Air Force) came across an envelope containing Holder’s paper and a paper written years earlier from which Holder had apparently borrowed liberally without attribution. As a result of the alleged plagiarism, Florida’s Judicial Qualifications Commission (JQC) initiated an investigation. Holder claimed that the paper containing the plagiarized material was not the paper he submitted to the Air War College but a fabricated document made to look like his actual paper. After a hearing, a commission panel voted unanimously to dismiss the charges and recommended that Holder, as the prevailing party, be reimbursed for costs. Holder filed a motion with the Florida Supreme Court, arguing that he should be reimbursed for his attorney fees as well, a motion the commission opposed. Denying Holder’s request, the Florida Supreme Court held that judges were not entitled to reimbursement of attorney fees in JQC actions. The court said, “[I]n this case we recognize that the Florida Constitution does not grant this Court the authority to award attorney’s fees to a respondent in a JQC proceeding. Such an acknowledgement does not violate the principle that we should avoid constitutional questions when possible; rather, it acknowledges that before this Court can take action, the Florida Constitution must give us the power to do so.” Inmate’s attorney fees in suit win capped at $1.50 An inmate who successfully sued prison officials for retaliatory punishment, but won only &$1 in nominal damages, can only recover $1.50 in attorney fees, due to the Prison Litigation Reform Act (PLRA)’s damages-based fee cap, the 7th U.S. Circuit Court of Appeals held on Dec. 8. Pearson v. Welborn, No. 05-1068. Alex Pearson was just two days away from being transferred from a maximum-security prison in Illinois to a less restrictive one when he was ticketed for sexual misconduct, which delayed his transfer by more than a year. Charging that the ticket was trumped up to block his transfer, Pearson sued various prison officials, alleging violations of his First Amendment and due process rights. An Illinois federal court limited Pearson’s possible recovery to nominal damages, on the ground that he had not suffered “physical injury.” According to the PLRA, 42 U.S.C. 1997e(e), there is no recovery for mental and emotional distress without a showing of physical injury. The jury returned a verdict for Pearson and awarded him nominal damages of $1. The court held that the PLRA’s fee cap provision, 42 U.S.C. 1997e(d)(2), applied, limiting Pearson’s attorney fees to 150% of his recovery, or $1.50. Pearson appealed, arguing that the court erred in denying his request for a declaratory judgment that his punishment was illegal. Such a declaration would have made the fee cap inapplicable since it applies only if monetary damages are the only relief secured. Pearson claimed that he had sought a prison transfer and a judgment to clear his name. The 7th Circuit affirmed. The court said that Pearson had already been transferred, and that a declaratory judgment “would be doing nothing more than reiterating the jury’s conclusion.” Consequently, a “declaratory judgment” would not constitute “other relief” distinct from the nominal damage award. A plaintiff is entitled to a declaratory judgment if he or she can demonstrate that, without it, the alleged wrong will recur. Since Pearson had already been transferred, granting his “request for declaratory relief would serve no purpose-except perhaps opening the door on his request for attorney’s fees.” CIVIL PRACTICE Columbus Day is holiday for appeal purposes Columbus Day is a legal holiday for the purpose of determining the last day of an appeal period, the Minnesota Supreme Court held on Dec. 7. Commandeur LLC v. Howard Hartry Inc., No. A05-2014. A Minnesota trial court dismissed a lawsuit filed by Commandeur LLC and ACRO Business Finance Corp. against Howard Hartry Inc. The judgment was entered on Aug. 10, 2005. Under Minn. R. Civ. App. P. 104.01, an appeal may be taken within 60 days of the entry of judgment. Minn. R. Civ. P. 6.01 provides that the last day of the period is included in the 60-day count unless “it is a Saturday, a Sunday, or a legal holiday . . . in which event the period runs until the end of the next day which is not a [sic] one of the aforementioned days.” In this case, the 60th day of the appeal period was Oct. 9, 2005, which was a Sunday. The next day, Oct. 10, was Columbus Day. The appeal was filed on Oct. 11, which an intermediate appellate court dismissed as untimely. The Minnesota Supreme Court reversed, holding that the notice of appeal was timely. Minn. R. Civ. P. 6.01 states that “legal holiday” includes “any holiday defined or designated by statute.” While the treatment of Columbus Day under Minnesota Stat. § 645.44 may vary depending on the branch of government, in the interests of fairness and certainty, Columbus Day is a legal holiday under Minn. R. Civ. P. 6.01. ELECTION LAW Nev. ballot initiative rule violates U.S. Constitution A Nevada law that required signatures of 10% of the voters in 13 of the state’s counties in order to have an initiative placed on the ballot was unconstitutional because it diluted votes in more populated counties and did not survive a strict scrutiny analysis, the 9th U.S. Circuit Court of Appeals held on Dec. 8. American Civil Liberties Union v. Heller, No. 04-17033. An interest group, the Committee to Regulate and Control Marijuana, and others attempted to place the Regulation of Marijuana Initiative on the 2004 Nevada ballot. Nevada Secretary of State Dean Heller rejected the group’s petition, determining, among other things, that it had failed to satisfy Nevada’s so-called 13-counties rule, which requires that for an initiative to be placed on the ballot, its proponents have to obtain signatures from at least 10% of the eligible voters in at least 13 of Nevada’s 17 counties. The committee challenged the 13-counties rule in a Nevada federal court, arguing that the rule violated the equal protection clause of the 14th Amendment because it favored the residents of more sparsely populated counties and diluted the votes of more densely populated counties. The district court granted a permanent injunction regarding the 13-counties rule. Affirming, the 9th Circuit held that the rule was unconstitutional because it diluted the votes of residents of densely populated counties. Also, the court held that although the 2004 election had passed, the case was not moot. “In light of the short time frame and the reasonable expectation that the Committee will again be subject to this challenged rule, it is ‘capable of repetition, yet evading review.’ We therefore hold that this case is justiciable-the Committee had standing to bring this challenge and the case is not moot,” the court said. EVIDENCE Admission of document doesn’t exclude summary The prior introduction of documents at trial does not bar a court from also admitting document summaries into evidence under Fed. R. Evid. 1006, the 1st U.S. Circuit Court of Appeals held on Dec. 6. U.S. v. Milkiewicz, No. 06-1192. Steven Milkiewicz was convicted in a Massachusetts federal court of defrauding the court through a scheme in which he sold office supplies to the court at inflated prices and billed it for higher quantities than delivered. At trial, the government introduced several thousand pages of documents. The court allowed the government to show the jury a summary chart of allegedly fraudulent sales transactions and another summary chart of discrepancies in Milkiewicz’s income tax reporting. Milkiewicz claimed that he deserved a new trial because the summary charts were improperly allowed. The 1st Circuit affirmed, holding that summaries that are otherwise admissible under Fed. R. Evid. 1006 are not rendered inadmissible because the underlying documents have been admitted into evidence. Rule 1006 allows the contents of voluminous writings that cannot be conveniently examined in court to be presented in the form of a chart, summary or calculation. The court said that the fact that the underlying documents are already in evidence does not mean that they can be “conveniently examined in court.” IMMIGRATION LAW Military service doesn’t make alien U.S. national An alien subject to removal isn’t a national of the United States by virtue of his service in the U.S. military, the 4th U.S. Circuit Court of Appeals held on Dec. 4. Dragenice v. Gonzales, No. 05-7050. Olgens Dragenice, a Haitian national, entered the United States at age 18 and later joined the U.S. Air Force Reserves. Upon enlistment, Dragenice took an oath of allegiance. After Dragenice was convicted of robbery and assault, the U.S. Immigration and Naturalization Service informed Dragenice that because of his convictions he was subject to removal. An immigration judge directed that Dragenice be removed to Haiti. The Board of Immigration Appeals rejected his appeal. Dragenice also filed a habeas petition, arguing that he was not subject to removal because he was a “national of the United States,” having voluntarily enlisted in the Air Force Reserves and taken an oath of allegiance to the United States for that purpose. The federal district court transferred the habeas petition to the 9th Circuit, which treated it as a petition for review. Denying the petition for review, the 9th Circuit held that Dragenice was not a U.S. national under the Immigration and Nationality Act. Noting that the definition of a U.S. national in the INA required a permanent allegiance to the United States, the court said, “The oath Dragenice took upon enlistment does not establish that he owes permanent allegiance to the United States . . . .Military service is temporary by nature; it necessarily has a limit and the oath of allegiance lasts only as long as the duration of the military service.” LEGAL PROFESSION Counseling state agency and private client is OK A lawyer or law firm can represent both a governmental entity and a private client appearing before the entity, in certain limited circumstances, the New Jersey Supreme Court ruled on Dec. 8. In re Supreme Court Advisory Committee on Professional Ethics Opinion No. 697, No. A-98-2005. Upon inquiry from Wilentz, Goldman & Spitzer of Woodbridge, N.J., the New Jersey Advisory Committee on Professional Ethics issued an opinion stating that it would be a direct conflict if the bond counsel for the governing body of a municipality also represented a private client before other municipal boards or agencies. The advisory committee relied on a 2005 ethics opinion, No. 697, which concluded that any attorney or firm that represented a governing body subject to the body’s budgetary, membership or decision-making control could not represent an executive, a legislative or a policymaking official or body subsidiary to the governing body. The law firm asked the New Jersey Supreme Court to review the propriety of Opinion 697. The New Jersey Supreme Court reversed. Dispensing with an analysis based on the “appearance of impropriety,” the court held that a lawyer or firm whose representation of a governmental body was plenary would be completely banned from representing private clients before that body or its subsidiaries. On the other hand, if the lawyer represents only a subsidiary of the governing body, he is barred only from representing private clients appearing before the same subsidiary. And if the lawyer’s representation of a governmental entity is limited, it is up to the lawyer to determine if his representation of private clients would present a “substantial risk” to his responsibilities to the entity. SCHOOLS AND EDUCATION School funding breaches equal protection clause A school financing law that did not grant adjustments to some counties that diverted parts of their budgets to support local public libraries was unconstitutional, the West Virginia Supreme Court of Appeals ruled on Dec. 4. The Board of Education of the County of Kanawha v. West Virginia Board of Education, No. 33081. The West Virginia Board of Education provides funding to the state’s public schools based on a formula that encompasses both the level of need in each locality and the level of funding the locality can provide on its own. Under a 1957 law, Kanawha County distributes part of the money it collects for school funding to the Kanawha County Public Library, upwards of $2.2 million in the 2002-2003 and 2003-2004 school years. The county school board asked the state board of education to exclude its distributions to the public library when calculating how much the state would give to Kanawha County’s public schools. When the state board refused, the county board sued for a declaratory judgment that the statute setting out the school-funding formula was unconstitutional. The state trial court ruled for the state education board. The West Virginia high court reversed. The funding law violates equal protection principles because it treats county school boards that are required by law to provide financial support for nonschool purposes less favorably than county school boards that are not bound by such legal requirements. As a result, county school boards charged by law with diverting a portion of their local shares to support nonschool purposes have less funds from regular tax levies to expend directly on public schools. The $2.2 million “directed each year to the support of the library is money taken from the support of school children in the classrooms of Kanawha County schools,” the court said.

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