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CONSTITUTIONAL LAW Meeting planners can’t be asked to pay for policing A city ordinance requiring public-meeting organizers to reimburse the city for costs of policing and cleanup violates the First Amendment to the U.S. Constitution, the 3d U.S. Circuit Court of Appeals ruled on March 21. The Nationalist Movement v. City of York, No. 06-2184. Section 741.03 of the codified ordinances of the city of York, Pa., requires prospective users of public land within the city to file an application, pay certain fees and to sign an agreement promising “to bear all costs of policing, cleaning up and restoring the park.” In June 2002, the Nationalist Movement submitted an application to hold a protest on Jan. 20, 2003. On the application, it objected to the various fees as a violation of the First Amendment. The city denied the application as incomplete. The movement sued the city in a Pennsylvania federal court challenging the provisions of the ordinance. The city moved for summary judgment. The court ruled that the fee violated the First Amendment because it allowed the city to charge higher fees based on the content of the applicant’s message. The court upheld all of the other provisions as constitutional and granted summary judgment for the city. The 3d Circuit affirmed in part and reversed in part. Citing the U.S. Supreme Court’s 1992 ruling, Forsyth County v. Nationalist Movement, the court said that the fee the city charges is nominal, not content-based and narrowly tailored to allow the city to recoup the cost of processing the application. Hence, it is nondiscretionary and does not violate the First Amendment. However, the requirement that applicants agree to bear all the costs of policing and cleanup is unconstitutional. Such a fee is content-based because the anticipated cost would need to be determined by estimating the public’s reaction to the speech. Furthermore, the court said, “the reimbursement provision is ripe for abuse. In deciding how best to police the event and charge the speaker, the City is given unlimited discretion which could easily be used to punish . . . speakers based on the content of their messages.”   Full text of the decision CONSUMER PROTECTION Bad faith isn’t enough for harassment conviction Mere lack of good faith on the part of Republican Party workers in causing phones repeatedly to ring isn’t enough to constitute a violation of a federal law prohibiting phone harassment, the 1st U.S. Circuit Court of Appeals held on March 21. USA v. Tobin, No. 06-1883. Following the November 2002 midterm elections, a New Hampshire federal jury convicted James Tobin, New England regional director of the Republican National Committee, of conspiring to violate 47 U.S.C. 223(a)(1)(D), which makes it criminal to telephone someone repeatedly “with intent to harass any person at the called number.” Tobin was sentenced to 10 months’ imprisonment. In his instruction to the jury, the judge said, “A person uses the telephone to harass another if he or she intentionally employs the phone in a way that is not meant as a good faith effort to communicate with a person at the number called and is done with an unjustifiable motive.” Tobin appealed, arguing that the judge’s “good faith” and “unjustifiable motive” language broadened the statute beyond its permissible meaning. The 1st Circuit reversed and remanded, holding that “the district court’s ‘unjustifiable motive’ and ‘good faith’ language, used virtually to define ‘intent to harass,’ broadens the statute unduly.” The court’s instruction “would also include almost anything else of which the jury might disapprove including conduct that was solely designed to interfere with telephone communications. We think that a Congress that sought to reach and outlaw attempts wrongfully to disrupt communications would have used quite different language . . . along the lines of state statutes that are expressly so aimed.” CONTRACTS Dealer’s superior rights nix arbitration clause An arbitration clause that precluded the award of triple damages to a consumer and held that a car dealer’s judicial remedies superseded those of the consumer was unconscionable and, hence, unenforceable, the South Carolina Supreme Court held on March 26. Simpson v. MSA of Myrtle Beach Inc. d/b/a Addy’s Harbor Dodge, No. 26293. Sherry H. Simpson entered into a contract with MSA of Myrtle Beach Inc. d/b/a Addy’s Harbor Dodge, a car dealership, whereby Simpson traded in her 2001 Toyota 4Runner for a new 2004 Dodge Caravan. Subsequently, Simpson sued Addy, alleging violations of the South Carolina Unfair Trade Practices Act. Addy asserted that the contract contained an arbitration clause, and that Simpson’s only remedy was to file for arbitration. Addy filed a motion to stay the litigation pending arbitration. Simpson claimed the arbitration clause was unconscionable and unenforceable. The court denied Addy’s motion. The South Carolina Supreme Court affirmed. Unconscionability, the court said, is defined as the absence of meaningful choice on the part of one party due to one-sided contract provisions. The arbitration clause in this case provides that “[i]n no event shall the arbitrator be authorized to award punitive, exemplary, double, or treble damages . . . against either party.” This violates the unfair trade practices act, which stipulates the award treble damages in order to punish “acts that adversely affect the public interest.” Also, the arbitration clause provides: “Nothing in this contract shall require the Dealer to submit to arbitration any claims by Dealer against Customer . . . and any claims by Dealer for these remedies shall not be stayed pending the outcome of arbitration.” The court said that a provision “dictating that the dealer’s judicial remedies supersede the consumer’s arbitral remedies is one-sided and oppressive.” LABOR LAW NLRB lacked basis to say nurse was a supervisor The National Labor Relations Board erred in determining that a nurse was not protected by the National Labor Relations Act because she was a supervisor, the U.S. Circuit Court of Appeals for the District of Columbia held on March 23. Jochims v. NLRB, No. 05-1455. Lisa Jochims, a registered nurse who had been employed by Wilshire at Lakewood, a long-term care nursing home, filed a complaint with the National Labor Relations Board (NLRB), arguing that Wilshire had terminated her for engaging in protected activities. Initially, the board held that Jochims was not a supervisor and that her discharge violated the National Labor Relations Act. However, after reconsideration, the board issued a supplemental decision and order, holding that Jochims was a supervisor under the act and that, therefore, her dismissal was not an unfair labor practice. Reversing, the D.C. Circuit said none of the four factors the board cited supports a finding that Jochims was a supervisor. First, though Jochims had the authority to “write up” employees who violated work rules, the court said that the “bare authority as a charging nurse to write up employee infractions cannot, without more, be viewed as creditable evidence of supervisory status.” Second, though Jochims had sent home employees she suspected had been drinking, “authority that is limited to taking action in response to flagrant violation of common working conditions, such as being drunk, is insufficient by itself to establish supervisory status.” Third, though Jochims had allowed employees to leave early to attend to personal matters, the court said that, “Board precedent makes clear that supervisory authority does not necessarily lie where authority to let employees leave early was limited to emergency situations that did not require the exercise of independent judgment.” LEGAL PROFESSION Bar records aren’t public records under Mass. law A member of the public is not entitled to view and copy the Massachusetts Board of Bar Overseers records of a former judge because the bar records were not “public records” under Massachusetts law, the Massachusetts Supreme Judicial Court held on March 23. Kettenbach v. Board of Bar Overseers, No. SJC-09760. Michael Kettenbach requested to view and copy the records of the Massachusetts Board of Bar Overseers about a judge who had resigned from the bench and taken inactive status in the bar after having been found to have violated the commonwealth’s Code of Judicial Conduct. Bar counsel refused to comply with the request, and Kettenbach sued in county court, arguing that the board was obligated to produce the records because they were public records under Massachusetts law. Affirming, the Massachusetts Supreme Judicial court, the state’s highest court, cited regulations by the supervisor of public records, directing that records such as the bar records were not public records under the law. The court said, “Under these regulations, the public records law applies to only one of the three branches of State government, namely, the Executive branch.” Client confidentiality not license to conceal fraud Although an attorney has a duty to maintain client confidentiality, he or she may not help a client conceal fraud, the Montana Supreme Court held on March 22. In the Matter of Potts, No. 04-562. Steven T. Potts represented Evon Leistiko in a will contest involving the estate of her mother, Ernestine Stukey. Stukey executed a will in 1998 disinheriting Leistiko. Leistiko was appointed Stukey’s conservator after she became incompetent. Stukey supposedly made a second will on Feb. 12, 2001, giving most of the estate to Leistiko and her family. Stukey died on March 8, 2001. There were competing petitions to probate the 1998 and the 2001 wills. In inventories Leistiko filed in the conservatorship and probate proceedings, she reported a total estate value of approximately $1.2 million, including $270,000 in joint tenancy accounts. The parties settled the will contest through mediation, and an agreement was reached referring to division of “the estate.” While the parties assumed that “the estate” included the accounts, Leistiko secretly tried to secure these assets for herself. Potts was instructed not to disclose this information. The state courts held that Leistiko had no right to the accounts. In response to a complaint against Potts regarding his conduct, the Commission on Practice of the Supreme Court of the State of Montana found that he had violated his duty of candor by failing to disclose material facts to the court. The Montana Supreme Court affirmed. Rule 1.2(d) of the state rules of professional conduct prohibits a lawyer from assisting a client in fraud. While a lawyer may not reveal client confidences, he may also not use the duty of confidentiality to “shield himself from other potential misconduct.” If there is the potential for assisting a client’s fraudulent conduct, an attorney should simply withdraw. TORTS Loss of consortium claim tolled in child’s minority A parent’s derivative claims for loss of consortium and medical expenses are tolled during a child’s minority, the Ohio Supreme Court held on March 21. Fehrenbach v. O’Malley, No. C-040128. Gina and Thomas Fehrenbach brought medical malpractice claims against their daughter Tara’s health care practitioners after she suffered permanent injuries from bacterial meningitis. They also brought claims for loss of consortium and medical expenses. The accrual date for the injuries was December 1991, and the Fehrenbachs brought suit in January 1997. The state trial court granted the defendants’ motion for partial summary judgment, ruling that, under Ohio law, derivative loss of consortium claims are barred by the statute of limitations. An intermediate appellate court reversed, holding that “the interests of Tara and her parents were ‘joint and inseparable’ ” and that the tolling provisions of Ohio Rev. Code Ann. � 2305.16 “ inure to the benefit of parents pursuing a claim for loss of consortium and medical expenses.” Thus, the parents should be able to take advantage of the tolling provision. The Ohio Supreme Court affirmed. The term “interest” in Section 2305.16 means a “legal share in something.” The Fehrenbachs clearly have a legal share in Tara’s claim. Their damages and Tara’s physical injury both derive from the same alleged facts and wrongful acts of the defendants. The court said, “While the Fehrenbachs’ claim remains independent and separate in the sense that they alone control it, their claim is ‘joint and inseparable’ from Tara’s claim because the Fehrenbachs cannot recover damages from defendants if defendants are found not to be liable for Tara’s injury.” Medical monitoring for latent illness recoverable The costs of medical monitoring for latent diseases after exposure to toxins are compensable damages for class action plaintiffs unable to prove present physical injury, the Missouri Supreme Court held on March 20 on an issue of first impression. Meyer v. Fluor Corp., No. SC87771. Lani Meyer sought to certify a class action on behalf of more than 200 minor children exposed to toxic lead emitted by a lead smelter operated by Fluor Corp. and other entities in Missouri. Meyer did not seek compensation for personal injury, but sought compensatory damages to establish and pay for a prospective medical-monitoring program for class members, due to the undisputed fact that injuries from lead exposure are often latent for years. She sought class certification under the theory that questions of law or fact common to the class members predominate over those affecting only individual members, and a class action is superior to other available methods. A Missouri state court denied certification. The Missouri Supreme Court reversed and remanded, holding that the need for medical monitoring is among the potential damages sustained by a plaintiff who is exposed to a toxin. This does not create a new tort; rather, it is a compensable item of damage when liability is established under traditional theories of recovery. The court refused to adopt a requirement that physical injury be proved before medical-monitoring damages can be ordered. Liability offset only up to settler’s damages share A nonsettling defendant in a civil case is entitled to an offset only up to the settling defendant’s several-liability share of the damages, the Alaska Supreme Court held on March 23. Petrolane Inc. v. Robles, No. S-11042. An Alaska state jury found Petrolane Inc. and Gary Robles, but not Shoreside Petroleum, liable for a propane tank explosion that injured Robles and Gannaway. Before that trial, Gannaway and Petrolane had settled. Petrolane paid Gannaway for an assignment to Petrolane of 90% of any award Gannaway might obtain from Robles. There was a new trial as to whether Shoreside could have been liable under a negligence theory excluded by the trial court. The new trial maintained the first jury’s findings as to Petrolane, Robles and Gannaway. After the second trial, the trial court reduced Robles’ liability to Gannaway by the full settlement amount. The Alaska Supreme Court reversed, holding that under a pure several liability regime, the nonsettling defendant is entitled to an offset only to the extent of the settling defendant’s share of the damages. Here, that means Robles is entitled to an offset only to the extent of Petrolane’s share of the damages.

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