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CIVIL PRACTICE Only plaintiff has right to cancel lien judgment A court lacks the jurisdiction to grant a motion to cancel a judgment from anyone other than the plaintiff, the Mississippi Supreme Court ruled on Jan. 11. Fitch v. Valentine, No. 2006-CA-00239-SCT. In his alienation of affection suit against Jerry Fitch Sr., Johnny Valentine received awards of $642,000 in actual damages and $112,500 in punitive damages. After Fitch filed a notice of appeal, the Bank of Holly Springs issued a letter of credit for him in a “sum not to exceed [$943,000]” that secured the judgment. The trial court approved the letter of credit in lieu of a supersedeas bond (a bond that suspends a judgment creditor’s power to levy execution) and stayed execution of judgment. Valentine did not object. Fitch then filed a motion to cancel judgment in order to facilitate the sale of land that he co-owned, claiming that the letter of credit would function as adequate security for the judgment. The trial court denied this motion. The Mississippi Supreme Court affirmed, holding that substitution of the letter of credit in lieu of a supersedeas bond does not affect the underlying judgment lien. Miss. Code Ann. � 11-7-189(2) authorizes only a plaintiff to remove a judgment lien from the judgment roll. Had the court granted Fitch’s motion to cancel judgment, it would have extended its prior order beyond a trial court’s jurisdiction.   Full text of the decision CIVIL RIGHTS Religious exception bars ADA suit against hospital The ministerial exception bars an Americans With Disabilities Act (ADA) claim against a religious hospital brought by a pastoral counselor, the 6th U.S. Circuit Court of Appeals ruled on Jan. 10. Hollins v. Methodist Healthcare Inc., No. 05-6301. As a resident in the pastoral education program at Methodist University Hospital in Memphis, Tenn., Millicent Hollins was required to initiate pastoral visits with patients and their families, and to be on call as a chaplain at other Methodist health care facilities. Following a psychiatric evaluation, the hospital terminated Hollins. She claimed she was fired because she was perceived as a threat to the hospital. She filed an ADA suit against the hospital in a Tennessee federal court. The court dismissed the case based on the ministerial exception, which bars discrimination suits involving religious institutions and their ministerial employees. The court rejected Hollins’ argument that the hospital, by signing a nondiscrimination form when it sought accreditation from the Association of Clinical Pastoral Education, had waived its right to invoke the ministerial exception. The 6th Circuit affirmed, and extended the ministerial exception from traditional religious organizations, such as churches and synagogues, to religiously affiliated institutions, such as hospitals, colleges or corporations. It also extended the exception from ordained ministers to those whose primary duties involve teaching, spreading the faith or participation in ritual and worship. The hospital fits the definition of religious institution, and Hollins fits the definition of ministerial employee, the 6th Circuit said. Though the hospital may have jeopardized its accreditation with the association, it has not waived its right to invoke the ministerial exception. CONSTITUTIONAL LAW Police roadblock evasion isn’t reasonable suspicion A trial court erred in failing to suppress evidence obtained from a police stop based on a motorist’s avoidance of a sobriety checkpoint because the driver’s evasion of the police checkpoint did not constitute reasonable suspicion for the stop, the Hawaii Supreme Court held on Jan. 11. State v. Heapy, No. 27375. The Maui (Hawaii) Police Department established a sobriety checkpoint. Police Officer Eric Correa’s job was to apprehend vehicles attempting to evade the checkpoint. As motorist Raymond Heapy approached, Correa noticed him turn down a road where only agricultural fields and an animal shelter were located. Though he observed no violations of the law, Correa stopped Heapy once he was past the animal shelter, believing that the only possible reason for driving down the deserted road was avoidance of the checkpoint. After being arrested for driving under the influence, Heapy moved to suppress evidence from the stop, arguing that Correa lacked reasonable suspicion for the stop. A trial court denied the motion. The Hawaii Supreme Court reversed. Although it acknowledged that the state had an important interest in combating drunken driving, the high court held that, because Correa observed no acts indicating violations of the law, the stop violated Hawaii Const. art. I, � 7, which is identical to the Fourth Amendment to the U.S. Constitution. Referencing the U.S. Supreme Court’s decision in Terry v. Ohio, the court said, “Today’s holding reaffirms the precepts established in Terry and its progeny . . . and the longstanding constitutional protections in our jurisdiction that have stood as a bulwark against unreasonable seizures.” No federal pre-emption of Georgia I.D. theft law Georgia’s identity fraud law is neither unconstitutionally vague, nor is it pre-empted by federal law, the Georgia Supreme Court held on Jan. 8. Hernandez v. Georgia, No. S06A1712. Nohe Hernandez, an illegal immigrant, misappropriated the Social Security number of Jason Smith, and used the number to obtain a Social Security card and a California driver’s license in Smith’s name. When Smith inquired about a tax refund he was expecting, the Internal Revenue Service (IRS) informed him that he owed approximately $12,000 in back taxes. When Hernandez’s activities were discovered, he admitted that he had used Smith’s Social Security number. However, after being convicted for identity fraud under Georgia’s identity fraud statute, Ga. Code Ann. � 16-9-121, Hernandez appealed, claiming that the statute was unconstitutionally vague and that it was pre-empted by federal law. Affirming, the Georgia Supreme Court held that the Georgia statute was not unconstitutionally vague as it applied to Hernandez because the law specifically forbade the use of appropriated Social Security numbers at banking institutions and that, by using Smith’s number to obtain a job, Hernandez was using Smith’s “account” with the IRS. Holding that the Georgia statute was not pre-empted by Section 1324c of the federal Immigration Reform and Control Act of 1986, the court said, “Nothing in the federal law explicitly overrides state law, and the two laws do not conflict in their operation or enforcement.” CRIMINAL PRACTICE Speculation cannot be basis for death sentence Evidence in the sentencing phase of a capital trial must be relevant to the character of the defendant or the circumstances of the crime, and a capital jury may not impose a death sentence following the state’s invitation to speculate about irrelevant matters, the South Carolina Supreme Court held on Jan. 8. State v. Burkhart, No. 26243. Troy Burkhart was convicted of murdering three people. During the punishment phase, the South Carolina Department of Corrections director of inmate classification testified for the prosecution that if Burkhart were given life in prison without parole, he would enjoy privileges such as access to the yard, work, education, meals, canteen, phone, library, recreation, mail, television and outside visitors. The jury imposed the death penalty. The South Carolina Supreme Court affirmed Burkhart’s conviction, but reversed on his punishment. Citing a 2005 case, State v. Bowman, decided after Burkhart’s case was tried, the high court reiterated its holding that the sentencing phase of a capital murder trial must contain evidence relevant to the character of the defendant or the circumstances of the crime. The evidence presented here only related to general prison conditions. The “entire subject matter injected an arbitrary factor into the jury’s sentencing considerations,” the court said. Jail escape is a felony for sentence-adding purpose Under Illinois law, a criminal’s failure to report to prison to begin his sentence is a “felonious escape” and counts toward a violent-crime sentencing enhancement, the 7th U.S. Circuit Court of Appeals held on Jan. 9. USA v. Chambers, No. 06-2405. Deondery Chambers pleaded guilty to being a felon in possession of a firearm. An Illinois federal judge, finding that Chambers had committed three previous crimes of violence, sentenced him to 188 months as an armed career criminal. Had Chambers been sentenced without the enhancement, his guidelines sentencing range would have been 130 to 162 months. One of his three convictions was for “escape.” Under federal law, an escape is considered an act of violence if it “involves conduct that presents a serious potential risk of physical injury to another.” Illinois law defines felonious escape not only as “intentionally escap[ing] from a penal institution or from the custody of an employee of that institution,” but also as “knowingly fail[ing] to report to a penal institution or to report for periodic imprisonment at any time.” Chambers had failed to report on schedule to a penal institution after being convicted for drug possession, robbery and aggravated battery. Chambers appealed his sentence. The 7th Circuit affirmed reluctantly, saying that it had to adhere to circuit precedent that held that any violation of the Illinois escape statute is a crime of violence for purposes of the federal Armed Career Criminal Act. The court said that it ought to be possible to divide escapes, for purposes of “crime of violence” classification, into jail or prison breaks on the one hand and walkaways and failures to report, on the other. Unconditional guilty plea waives speedy trial right A defendant’s right to a speedy trial is a nonjurisdictional issue that may be waived by an unconditional guilty plea, the 3d U.S. Circuit Court of Appeals ruled in a per curiam opinion on Jan. 11. Washington v. Sobina, No. 05-4599. Richard Washington’s first trial on kidnapping and murder charges ended in a mistrial. At his second trial, Washington was convicted of criminal conspiracy and robbery. He was found not guilty of first-degree murder. The jury was unable to reach a verdict on the kidnapping and lesser degree of murder charges. Washington was sentenced to a term of five to 10 years in prison. While awaiting retrial on the other charges, Washington filed petitions in Pennsylvania state and federal court alleging violation of his Sixth Amendment right to a speedy trial. The state petitions were denied. His third trial ended in a hung jury, and in 2005 the federal court issued a split decision for Washington and the state. Both sides appealed, but while the appeal was pending, Washington pleaded guilty to kidnapping and third-degree murder. The 3d Circuit dismissed the appeal as moot. It has been consistently held that nonjurisdictional issues may be waived upon the entry of an unconditional guilty plea. Jurisdictional claims are ones touching the fundamental rights protecting the establishment of factual guilt, or those that touch on a trial court’s statutory or constitutional power to hear a case. The circuit court held that a speedy trial challenge does not implicate either of these characteristics. MOTOR VEHICLES Military road open to public is state highway A road through a U.S. Naval facility that was open to the public was a Virginia “highway” for purposes of a conviction for operating a motor vehicle with a suspended license, the 4th U.S. Circuit Court of Appeals held on Jan. 10. U.S. v. Hill, No. 06-4092. While his driver’s license was suspended, Rodney Hill operated a vehicle on Nider Boulevard, a roadway on the U.S. Naval Amphibious Base Little Creek in Virginia Beach, Va. Although the roadway was on a U.S. Naval facility, it was open to the public. After being stopped at an identification checkpoint, Hill was charged under the Assimilative Crimes Act, 18 U.S.C. 13, with one count of driving a motor vehicle on a Virginia highway after being declared a habitual offender and one count of driving a motor vehicle on a Virginia highway while his driver’s license was suspended or revoked. After a trial court convicted Hill, he appealed, arguing that the base road was not a “highway” under Virginia law. Affirming, the 4th Circuit held that, because the base was open to the public, the base road was a Virginia highway under the law. Distinguishing Hill’s case from its 2005 U.S. v. Adams opinion, the court said, “Unlike the facts in Adams, there is no evidence in the instant case that the stretch of Nider Boulevard between Gate 4 and Shore Drive was closed or restricted at the time of Hill’s charged conduct.” TORTS Employee theft, tax fraud were separate offenses In sentencing, a court need not group the offense of defrauding one’s employer with the offense of fraudulent failure to report the income for tax purposes, the 7th Circuit U.S. Court of Appeals held on Jan. 12. USA v. Vucko, No. 05-4182. Susan Vucko stole more than $700,000 from her employer, Northwest Building Materials & Supply Co. She also falsely reported her income on her federal tax returns. When she was caught, she pleaded guilty to wire fraud and to making false statements on her tax returns. The court imposed concurrent sentences of two years’ imprisonment for each offense and three years of supervised release and ordered restitution. She appealed her sentence, claiming that the Illinois federal district court erred in failing to group the wire fraud and tax fraud charges under Section 3D1.2(c) or (d) of the Federal Sentencing Guidelines. The 7th Circuit affirmed, holding that grouping would have been inappropriate. The court said, “Grouping under the circumstances of Vucko’s case would seriously undercut the concept of ‘incremental punishment’ that underlies both the grouping rules and the Guidelines as a whole” by eliminating the “marginal punishment for her second offense.”

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