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CIVIL RIGHTS No city liability for police response to Seattle riots The city of Seattle was not liable for injuries sustained by members of the public during the city’s 2001 Mardi Gras riots because the city had no constitutional duty to protect the public from violence by members of a riotous crowd, and its police department’s action did not trigger the “danger creation” exception to the rule against liability, the 9th U.S. Circuit Court of Appeals held on Jan. 18. Johnson v. City of Seattle, No. 06-1840. In 2001, riots occurred during the annual Mardi Gras celebration in Seattle. Although the celebrations had been peaceful in previous years, the crowds became violent in the days leading up to the Mardi Gras. Fearing that the presence of police would cause the crowd to become more violent, the Seattle Police Department altered its operational crowd-control plan and elected to keep its officers on the perimeter of the crowd. After being injured in the riots, Michael Johnson and others sued the city of Seattle and others in state court, arguing that the city violated both state and federal law in failing to protect them from the violent crowd. The case was removed to a Washington federal court, which granted summary judgment to the city. Affirming, the 9th Circuit held that members of the public had no constitutional right to sue state actors who failed to protect them from harm inflicted by third parties and that the police department’s change to its operational plan did not trigger the “danger creation” exception to the rule against liability. Though the police’s original plan might have controlled the crowds more effectively, it doesn’t mean that a change to this plan placed the plaintiffs in any danger. “Even if proved not the most effective means to combat the violent conduct of private parties, the more passive operational plan that the police ultimately implemented did not violate substantive due process because it ‘placed [the plaintiffs] in no worse position than that in which [they] would have been had [the defendants] not acted at all,’ ” the court said.   Full text of the decision CRIMINAL PRACTICE Consolidation hearing isn’t a ‘critical stage’ Because a hearing to consolidate two criminal trials is not a “critical stage” of the criminal process, the absence of counsel for a defendant does not violate his Sixth Amendment rights, the 6th U.S. Circuit Court of Appeals ruled on Jan. 16 in a matter of first impression for any circuit court. Van v. Jones, No. 04-2277. Roeur Van was charged with assault with intent to commit murder for his part in a gang attack. The state moved to consolidate Van’s case with the cases of three of the seven others involved in the attack. Though the other three defendants and their attorneys appeared with Van at the hearing (and objected to consolidation), Van’s attorney did not attend. The trial court granted the motion to consolidate. Two of the defendants entered pleas, while the other two, including Van, went to trial. Van was convicted as charged. Two Michigan appellate courts upheld his conviction. Van petitioned for habeas corpus relief in a Michigan federal court, arguing that his Sixth Amendment rights were violated when the trial judge allowed Van’s case to be consolidated without the presence or input of Van’s attorney. The court denied Van’s petition for relief. The 6th Circuit affirmed, holding that the consolidation hearing is not a critical stage of criminal proceedings. Whether the particular proceeding is a critical stage depends on whether significant consequences might result from an attorney’s absence. In the consolidation context, a motion to sever could have cured any harm Van may have suffered from consolidating his case with that of the others. EMPLOYMENT Maryland ‘Wal-Mart’ law is pre-empted by ERISA Maryland’s Fair Share Health Care Fund Act, a law designed to force Wal-Mart Stores Inc. to provide health benefits to its employees, was pre-empted by the federal Employee Retirement Income Security Act (ERISA), the 4th U.S. Circuit Court of Appeals held on Jan. 17. Retail Indus. Leaders Ass’n v. Fielder, No. 06-1840. Following a nationwide campaign to force Wal-Mart Stores Inc. to increase health insurance benefits for its 16,000 Maryland employees, Maryland enacted the Fair Share Health Care Fund Act, which required employers with 10,000 or more Maryland employees to spend at least 8% of their total payrolls on employees’ health insurance costs or pay the amount their spending fell short to the state of Maryland. The Retail Industry Leaders Association, of which Wal-Mart is a member, challenged the law in a Maryland federal court, arguing it was pre-empted by ERISA. The court granted summary judgment to the association. The 4th Circuit affirmed. Referring to the enactment of the Fair Share Act, the court said, “Not disguised was Maryland’s purpose to require Wal-Mart to change . . . its employee benefit plans and how they are administered. This goal, however, directly clashes with ERISA’s preemption provision and ERISA’s purpose of authorizing Wal-Mart and others like it to provide uniform health benefits to its employees on a nationwide basis.” ENVIRONMENTAL LAW CERCLA allows cleanup volunteer to sue for costs An entity that voluntarily cleans up polluted land when it had not been ordered to do so may still sue others for contribution under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the 7th U.S. Circuit Court of Appeals held on Jan. 17. Metropolitan Water Reclamation District v. North American Galvanizing & Coatings Inc., No. 05-3299. Section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9607(a), imposes liability for the costs of cleaning up hazardous waste. Under Section 113(f) of the Superfund Amendments and Reauthorization Act, 42 U.S.C. 9613(f), responsible parties may bring contribution suits against others to apportion fault. Metropolitan Water Reclamation District of Chicago sued in an Illinois federal court to recover costs it had voluntarily incurred in cleaning up a parcel of property that it had leased for 50 years to Lake River Corp. Lake River’s parent, North American Galvanizing & Coatings Inc., moved to dismiss for failure to state a claim. The court granted the motion to dismiss the Section 113(f) claim but allowed the Section 107(a) claim to go forward. The 7th Circuit affirmed. Section 107(a) states that “a responsible party . . . shall be liable for (A) all costs of removal or remedial action incurred by the United States Government or a State . . . ; [and] (B) any other necessary costs of response incurred by any other person.” The court said it is clear from this language that a potentially liable party, such as Metropolitan Water, may sue under Section 107(a) to recover necessary response costs since it can be considered as “any other person.” GOVERNMENT Court can’t meddle in state Senate process A trial court does not have authority to grant an alternative writ prohibiting a legislative body from proceeding to discipline one of its members, the South Dakota Supreme Court ruled on Jan. 18. Gray v. Gienapp, No. 24407-DG. A South Dakota state Senate page alleged in February 2006 that Senator Dan Sutton made inappropriate sexual advances toward, and contact with, him. Prompted by a letter from the page’s father, the president pro tem of the Senate wrote Sutton to advise him that he could be impeached if he did not resign. Sutton did not resign, and he was re-elected in November 2006. He resigned from the 2006 Senate the next week, but showed up in January for the 2007 Senate and took the oath of office. The Senate immediately amended its rule to address implicit and explicit issues raised by Sutton’s case, including adding a mechanism for holding discipline and expulsion hearings. Before a committee to investigate Sutton’s conduct could be formed, Sutton petitioned a state trial court for an alternative writ of prohibition ordering the Senate from holding any hearings on his case. The trial court granted Sutton’s request, so the Senate applied for a writ of prohibition from this court. The South Dakota Supreme Court granted the Senate’s application for a writ of prohibition, finding that the trial court had encroached on the Legislature’s powers by issuing an alternative writ prohibiting the Senate from conducting hearings on the discipline of one of its members. Sutton had not been excluded from taking his new seat, and his potential removal from office was speculative, so the mere holding of hearings would harm neither Sutton nor his constituents. The court also said that the trial court did not have authority to preclude disclosure of any prehearing investigation materials. INSURANCE LAW Insurance policy liability limits can’t be prorated Insurance limits cannot be prorated when applied to a claim for asbestos liability against a policy that was cancelled during the policy year, the 1st U.S. Circuit Court of Appeals held on Jan. 18. OneBeacon Ins. Co. v. Georgia-Pacific Corp., No. 06-1993. Georgia Pacific Corp. had a standard comprehensive general liability insurance policy issued by Employers Surplus Lines Insurance Co., designed primarily to protect itself from claims by third parties. The policy, whose coverage period was set at three years beginning on Jan. 1, 1967, had a $10 million annual aggregate limit of liability and a $10 million per occurrence limit. Georgia Pacific canceled the policy, effective on April 1, 1967, and replaced it with one issued by a different insurer. The cancellation endorsement shortened the policy period, refunded a prorated amount of premium to Georgia Pacific, and stated that all other terms and conditions remained unchanged. Decades later, Georgia Pacific presented the successor on the policy, OneBeacon Insurance Co., with a claim for $10 million of asbestos products liability losses. OneBeacon sought a declaratory judgment that its liability was capped at $2.5 million, prorating the limits since the policy was only in effect for one-quarter of the year. A Massachusetts federal district court granted summary judgment to Georgia Pacific. The 1st Circuit affirmed, holding that the asbestos injuries at issue are likely to be continuing occurrences that straddle the effective periods of the Employers policy and OneBeacon’s replacement policy. The court said that “the problem of allocating a continuing loss among the many insurers who were on the risk for the loss is not peculiar to short term policies, nor is it an excuse to alter express policy limits.” Here, the policy language does not provide for prorating.

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