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ADMINISTRATIVE LAW Key in the ignition means operation of the vehicle Both the trial and the intermediate appellate courts erred in overturning the suspension of a motorist’s driver’s license because a driver’s sleeping in a vehicle with the key inserted in the ignition constitutes operation of the vehicle for purposes of a license suspension, the Connecticut Supreme Court held on March 13. Sengchanthong v. Commissioner of Motor Vehicles, No. SC17606. A police officer discovered Indy Sengchanthong parked in a vehicle on the shoulder of an interstate highway with the vehicle’s turn signal flashing and the windshield wipers operating even though it was not raining. Sengchanthong was sleeping in the vehicle, and the car’s ignition was in the on position. Tests indicated Sengchanthong’s blood-alcohol level was over the legal limit, and he was arrested for operating a motor vehicle under the influence of alcohol. In accordance with Connecticut law, his driver’s license was suspended for 90 days. Seng-chanthong challenged the suspension, arguing that he was not operating the motor vehicle at the time of his arrest. A Department of Motor Vehicles hearing officer rejected Sengchanthong’s challenge. A trial court reversed, and an intermediate appellate court affirmed. Reversing, the Connecticut Supreme Court held that the act of inserting the key in the ignition constituted operation of the vehicle. Applying its holding in the criminal matter, State v. Haight, the court said, “[M]ere insertion of the key into the ignition is an act … which alone or in sequence will set in motion the motive power of the vehicle … and, therefore, itself constitutes operation of the vehicle.”   Full text of the decision ATTORNEY FEES State need not pay fees of grandparent’s attorney A court-appointed attorney is not entitled to attorney fees for representing a grandmother in a parental termination action, the Iowa Supreme Court ruled on March 9. State Public Defender v. Iowa District Court for Linn County, No. 14/04-2029. Attorney Judith Amsler was under contract with the state public defender to provide legal services to indigents. In 2002, the juvenile court appointed Amsler to represent Mary Snell, maternal grandmother and custodian of children in a “child in need of assistance” action. In 2003, the state moved to terminate the parental rights of Snell’s daughter and the children’s fathers. The juvenile court appointed Amsler to represent Snell in the termination proceedings. The court entered a termination order and Amsler represented Snell in an unsuccessful appeal. In 2004, Amsler submitted a fee claim of $4,360.48 to the state public defender for attorney fees and expenses incurred in representing Snell. The state public defender paid Amsler $2,802.52, explaining that he was denying that part of Amsler’s claim that related to the termination proceeding because only parents are entitled to court-appointed attorneys in termination actions. The juvenile court ordered the state public defender to pay all of Amsler’s fees. The Iowa Supreme Court reversed. Grandparents do not have a statutory right to an attorney in a termination action. Under Iowa Code � 232.113, only the parent and child identified in the termination petition have a right to counsel. Though a court may have inherent power to appoint an attorney when there is neither a statutory right nor a constitutional right to such an appointment, that power does not carry with it “the power to order the state to compensate counsel thus appointed.” Iowa Code � 815.11 expressly limits the types of court appointments for which costs incurred may be paid from the indigent defense fund to the original parties of an action-in this case the parent and child in the termination petition. CIVIL PRACTICE Advisory jury verdict doesn’t merit deference When a court impanels an advisory jury sua sponte, and adopts that jury’s judgment and award without making its own findings, the judgment must be vacated and remanded for the court to review the evidence and reach its own judgment, the 10th U.S. Circuit Court of Appeals held on March 7. OCI Wyoming L.P. v. PacifiCorp, No. 06-8026. OCI Wyoming sued PacifiCorp, alleging breach of agreement. Although both parties waived their rights to a jury trial, a Wyoming federal court impaneled an advisory jury. The jury found that PacifiCorp had breached the agreement, but calculated OCI’s damages to be a fraction of what it claimed. The court denied OCI’s motion to set aside the advisory jury verdict, treating it as a motion to amend the judgment under Fed. R. Civ. P. 52(b) and concluding that “substantial evidence” supported the advisory jury’s verdict. The court entered the judgment, and OCI appealed, contending that the district court had erred, first, when it impaneled an advisory jury in the absence of a motion from one of the parties, and, second, when it adopted the advisory jury’s verdict without setting out its own findings of fact and conclusions of law as required by Fed. R. Civ. P. 52(a), according to which, “In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon.” The 10th Circuit vacated the judgment but held that, while OCI suffered prejudice, a new trial wasn’t warranted. The court said, “What is missing is why the district court ruled as it did. The district court does not lay out, in any level of detail, the facts supporting its award.” It is the district court, not an advisory jury, that has the “ultimate responsibility” to decide the case’s legal and factual issues. The circuit court remanded, instructing the district court to “review the evidence previously presented and reach its own judgment, setting forth sufficient findings of fact and conclusions of law pursuant to Rule 52(a) without giving deference to the advisory jury’s verdict.” CONSTITUTIONAL LAW Religious objection to payment of taxes denied There is no basis under the First or the Ninth amendments to the U.S. Constitution for permitting a taxpayer to withhold a portion of his taxes in protest against military spending, the 2d U.S. Circuit Court of Appeals ruled on March 6. Jenkins v. Commissioner of Internal Revenue Service, No. 05-4756. Daniel Jenkins filed a petition with the tax court to withhold a portion of his federal taxes, on the basis of a religious objection to having his money go toward military spending. He claimed the First and Ninth amendments gave him a right to redirect that portion of his taxes to nonmilitary expenditures. The tax court rejected his argument and imposed a $5,000 penalty for bringing a frivolous claim. The 2d Circuit affirmed, finding Jenkins’ arguments without legal merit. The Ninth Amendment, which protects an individual’s nonenumerated rights, is not an independent source of individual rights. Citing 18th and 19th century cases, Jenkins had argued that the right to withhold taxes was an element of religious freedom at the time the Constitution was adopted. The court ruled that this interpretation was merely Jenkins’ own opinion, and a “mere recasting” of his First Amendment claim, which could not stand, given that it is well settled that the free exercise clause is not violated by the collection of tax revenues. CRIMINAL PRACTICE Defendant should have opportunity to allocute A federal court’s failure to allow a defendant to allocute at sentencing was a reversible error requiring resentencing, the 4th U.S. Circuit Court of Appeals held on March 6. U.S. v. Muhammad, No. 06-4516. Abdul Muhammad was convicted of wire fraud and money laundering. His original prison sentence of 121 months was vacated following the U.S. Supreme Court’s 2005 decision, U.S. v. Booker. On remand, a North Carolina federal court again sentenced him to 121 months. At no time during the resentencing hearing was Muhammad given an opportunity to allocute (to speak urging mitigation of his sentence). Though Muhammad failed to object to this allocution denial, he appealed, arguing that he was prejudiced by the court’s refusal. Reversing, the 4th Circuit held that, despite Muhammad’s failure to object, he must be resentenced because the court’s refusal constituted plain error. The 4th Circuit acknowledged that, in light of Muhammad’s having been sentenced twice at the top of the sentencing range, it was unlikely that allocution would result in a lesser sentence. However, the court said, “Because the ‘possibility remain[s]‘ that Muhammad could have received a lesser sentence had he been permitted to allocute at resentencing, he has sufficiently shown that he was prejudiced by the denial of allocution . . . .At the resentencing hearing, the district court must permit Muhammad to allocate before imposing sentence.” EVIDENCE Hearsay admissible only with disclosure of source A trial court erred in allowing an arresting officer to establish a habitual offender’s identity by reference to a criminal history’s description of the defendant’s scars and tattoos, the New Hampshire Supreme Court ruled on March 6. State v. Hammell, No. 2005-528. Michael Hammell was arrested in 2002 for driving after having been certified as a habitual offender. At trial, the court, in order to establish Hammell’s identity, allowed the arresting officer to testify that the various tattoos and scars he observed on Hammell’s body matched those described in his criminal history record. Hammell was convicted as charged. He appealed, arguing that the court should not have admitted the information from his criminal history record because it was hearsay. The state did not contest that the information was hearsay, but claimed that it was admissible under the public records and reports exception, which applies to “matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases, matters observed by police officers and other law enforcement personnel.” The New Hampshire Supreme Court reversed and remanded, ruling that the state, as the party seeking admission of the evidence, had to elicit “foundational testimony” to explain how the information was collected. The court rejected the state’s invitation to interpret the exception to include “routine, objective observations which were not gathered as part of an investigation,” noting that the exception focuses on “matters observed by police officers,” not merely the documents in which such observations are found. GOVERNMENT No sovereign immunity in lien interpleader action If two sovereigns are “defendants” in an interpleader action to resolve conflicting lien priorities, sovereign immunity does not apply, the 1st U.S. Circuit Court of Appeals held on March 5. Hudson Savings Bank v. Austin, No. 06-2043. Hudson Savings Bank held a mortgage on property owned by George Austin Jr., who owed taxes to the commonwealth of Massachusetts and the U.S. government. Both governments filed tax liens against the property. Austin defaulted on the mortgage note. Hudson foreclosed and sold the property for much less than the value of the liens. Austin died. Hudson filed an interpleader action against Austin’s executor and the two governments, seeking resolution of its payment obligations, discharge of any liability and payment for the costs of bringing the action. Pursuant to 28 U.S.C. 1444, which allows the federal government to remove to federal court interpleader actions in which it is named as a defendant, the U.S. government removed the case to a Massachusetts federal court. The commonwealth asserted that, under the 11th Amendment to the U.S. Constitution, it was immune from the bank’s action if it was to be prosecuted in federal court. The commonwealth also said that, since it was a necessary and an indispensable party to the interpleader action, 11th Amendment immunity required dismissal of the entire action. The federal court agreed, and dismissed the case. The 1st Circuit reversed and remanded, holding that the 11th Amendment would not be offended if a federal court were allowed to determine the relative priority of the federal and state tax liens. The 1st Circuit said the district court should have stayed Hudson’s request for relief as to the commonwealth, adjudicated the dispute between the two sovereigns, then remanded what was left of the interpleader action to state court for resolution. That court, unencumbered by the 11th Amendment, could then decide the issue of whether Hudson should be discharged from liability. Filming council meetings OK under common law There is a common law right to videotape municipal council meetings, subject to reasonable restrictions, the New Jersey Supreme Court ruled on March 7. Tarus v. Borough of Pine Hill, No. A-93-2005. A police officer for Pine Hill, N.J., removed Robert Tarus, a self-proclaimed borough government watchdog, from two council meetings because he refused to stop videotaping the meetings. Tarus was acquitted of disorderly conduct. The council later voted to allow videotaping of council meeting so long as there was no disruption. Tarus filed a 42 U.S.C. 1983 case in a New Jersey federal court, claiming malicious prosecution and violation of his constitutional and common law rights to videotape the meetings. The court granted summary judgment to the borough of Pine Hill. Tarus refiled in state court, which held that Tarus’ right of access under the state constitution did not include a right to videotape meetings. An intermediate appellate court affirmed. The New Jersey Supreme Court reversed, holding that New Jersey’s long-standing common law right to public information includes the right to videotape government meetings, a right that has been codified into the Open Public Meetings Act. The right is not absolute, and government bodies may impose reasonable guidelines to ensure that the recording of meetings does not disrupt the execution of the body’s business or interfere with other citizens’ rights of access. INSURANCE LAW No prejudgment interest if there is no judgment A settlement agreement was not a “judgment” for purposes of an insurance policy’s provision requiring an insurer to pay prejudgment interest in excess of the policy’s limits, the Maine Supreme Judicial Court held on March 2. State Farm Fire and Cas. Co. v. Haley, No. 2007 ME 42. Angela Haley was injured in an auto accident involving a driver insured by State Farm Fire and Casualty Co. Litigation between Haley and State Farm concluded with a $100,000 settlement. State Farm filed a declaratory judgment action, seeking a determination that it was not liable for prejudgment interest under a policy provision providing payment of interest on damages “due to a judgment.” State Farm said it was not liable for prejudgment interest because its settlement with Haley was not a “judgment.” A trial court held for State Farm. Affirming, the Maine Supreme Judicial Court agreed that State Farm was not liable, holding that the settlement did not operate as judgment. The court said, “The plain language of that paragraph clearly dictates that State Farm pay interest only in the instance of a judgment. A settlement is not a judgment and State Farm is not obligated to pay prejudgment interest in excess of its policy limit.” LEGAL PROFESSION Insured can’t sue insurer using insurer’s attorney Disqualification of a law firm representing an insured in an action against its insurer was warranted because an attorney at the firm had formerly worked at a firm retained by the insurer to defend the insured, the Nevada Supreme Court ruled on March 8. Nevada Yellow Cab Corp. v. The Eighth Judicial District Court of the State of Nevada, No. 46579. Insurance Co. of the West retained Vannah Costello Canepa Riedy & Rubino, a Las Vegas law firm, to defend its insured, Nevada Yellow Cab Corp., in a personal injury suit filed by Heather Nash. Three years later, Insurance Co. fired Vannah Costello and hired a different firm to represent Yellow Cab. When Nash offered to settle for the policy limits prior to trial, Insurance Co. told the new counsel to reject the offer. Subsequently, the case settled for $800,000 more than the policy limit, with Yellow Cab having to pay $500,000 out of pocket. Yellow Cab hired Robert Vannah, a former Vannah Costello attorney who had never worked on Yellow Cab’s case, to file a bad-faith action against Insurance Co. Insurance Co. filed a motion to disqualify Vannah and his firm for conflict of interest. The trial court granted the motion, and Yellow Cab filed a petition for a writ of mandamus. Denying the petition, the Nevada Supreme Court found that an attorney-client relationship was established between Vannah and Insurance Co., adopting the majority rule that counsel retained by an insurer to defend its insured also represents the insurer. Furthermore, a substantial relationship existed between that representation and the current one because the way that Insurance Co. handled the claim against Yellow Cab is the subject of the bad-faith action.

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