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CIVIL PRACTICE Computer glitch can’t be used to deny jury trial Although demands for juries are required to be in writing, a trial court erred in denying a tenant a jury trial in a landlord’s action for possession when the litigant was unable to file her written demand due to a courthouse computer malfunction, the District of Columbia Court of Appeals held on July 26. King v. Berindoague, No. 05-CV-879. Fidelia Berindoague and fellow owners of a residential property sued for possession of a unit. Michelle King and Luong Le, tenants in the unit, attempted to file an answer containing a jury demand. The courthouse computers were malfunctioning. A trial court asked the tenants what arguments they made in the answer, and they said their defense was illegal retaliation over complaints they had made about the property. The court ruled for the landlords from the bench. Reversing, the District of Columbia Court of Appeals, the district’s highest court, noted that tenants had a right to a jury trial in actions for possession by landlords. The court said, “Even though the computers were ‘down,’ everyone was aware that the tenants were demanding a trial by jury. Appellants asserted that they had put their demand in writing, and counsel for appellees acknowledged that he had a copy of that document. Counsel did not object at that time that the document was defective in any way, and the court did not make any such findings. Appellants certainly cannot be held responsible for the inoperable state of the computers in the clerk’s office . . . .Under these unique circumstances, we deem the appellants to have filed their written demand for a jury trial.” Full text of the decision Oral deal is integrated into the written contract All rights to reacquire the Salt Lake Tribune that were orally guaranteed to the family that had long controlled it were integrated into the written agreement, the 10th U.S. Circuit Court of Appeals held on July 27. MediaNews Group Inc. v. McCarthey, No. 06-4132. Although members of the McCarthey family had long held controlling stock in the Salt Lake Tribune, they approved a merger of its holding company into Tele-Communications Inc. in exchange for TCI stock. Some written documents that contained integration clauses memorialized the merger. Collectively, they attempt to ensure the family’s right to uninterrupted control of the Tribune and its right to regain ownership after five years � the “option agreement.” TCI later merged with AT&T Corp., which sold the Tribune to MediaNews Group Inc. The McCartheys filed suit in a Colorado state court, asserting an independent right to reacquire the Tribune, derived from a premerger oral agreement � the “family agreement.” After that litigation was stayed, MediaNews sought a declaration that the McCartheys have no independent rights in the Tribune outside of the option agreement. A Utah federal court granted MediaNews summary judgment. Affirming, the 10th Circuit applied Utah law because federal jurisdiction in the case was based on diversity of citizenship. The parol (oral or unwritten) evidence rule in Utah excludes contemporaneous conversations or representations offered for the purpose of adding to, or changing, the terms of an integrated contract. The court said that all of the terms of the family agreement were integrated into the written contracts. CONSUMER PROTECTION Synthetics can be used in organic food production Regulations promulgated by the U.S. secretary of agriculture approving synthetic substances for certain uses in certified “organic” products, which were partially deemed invalid by the 1st U.S. Circuit Court of Appeals, were deemed valid by the same court on July 24, due to revisions of the statute. Harvey v. Johanns, No. 06-2738. Under the Organic Foods Production Act, a product “must be produced and handled without the use of synthetic substances in order to be labeled or sold as organic.” But the OFPA allows for a National List of nonorganic substances that can be approved for use in organic products. Arthur Harvey claimed that certain sections � including 7 C.F.R. 205.600(b) and 205.605(b) � of the rules relating to the National List contravened the OFPA by permitting the use of synthetic substances in the processing of organic foods. Section 205.600(b) lists criteria for determining whether a synthetic “processing aid or adjuvant” should be included on the National List, while Section 205.605(b) enumerates synthetic substances already approved for inclusion on the National List. The 1st Circuit invalidated the regulations, ruling that they were contrary to the OFPA’s general prohibition against adding synthetic ingredients in handling operations. Subsequently, Congress amended the OFPA, specifically authorizing the use in handling operations of synthetic ingredients if they appear on the National List and clarifying that the National List relates to processing and handling as well as production. Harvey sued for enforcement of the 1st Circuit’s order. A Maine federal court granted the secretary’s cross-motion for relief from judgment. Affirming, the 1st Circuit said the congressional amendments make it inequitable to enforce its prior judgment. The court said Congress had clearly intended to resurrect the invalidated regulations by clarifying those sections the 1st Circuit had relied upon in its initial ruling. CRIMINAL PRACTICE Harsher penalty for killer than murder-planner OK Sentencing the triggerman in a murder-for-hire scheme to death is not unconstitutionally disproportionate to the life imprisonment the instigator of the plot received, an en banc 6th U.S. Circuit Court of Appeals ruled on July 25. Getsy v. Mitchell, No. 03-3200. John Santine concocted a plot to kill Chuckie Serafino in order to take over his lawn-care business. Jason Getsy broke into Serafino’s house and shot both Serafino and his mother; Serafino lived, but his mother died. Santine and Getsy were tried separately, but both were convicted of murder and attempted murder. Santine received a life sentence, while Getsy received the death penalty. The Ohio Supreme Court affirmed Getsy’s conviction, and his state habeas relief was denied. In his federal habeas petition, Getsy argued that it was unconstitutionally arbitrary and disproportionate to sentence him to death when Santine, the plot mastermind, received a life sentence. An Ohio federal court denied the relief, but a 6th Circuit panel reversed. The en banc 6th Circuit reversed, holding that the Ohio Supreme Court’s determination that Getsy’s death sentence was not arbitrary or disproportionate was not contrary to, or an unreasonable application of, clearly established federal law. The U.S. Supreme Court and circuit court precedent say that a defendant cannot prove a constitutional violation merely by comparing his sentence to that of similarly situated defendants. Suspect isn’t seized until he follows police orders A driver who pulls over at police insistence, only to flee the scene, has not been “seized” for purposes of the Fourth Amendment, the 2d U.S. Circuit Court of Appeals ruled on July 23. U.S. v. Baldwin, No. 06-4265. Acting on an anonymous tip that two men driving a car with Virginia license plates were carrying firearms, New Haven, Conn., police activated their car lights to pull over a car matching that description. As an officer approached, the car suddenly sped away. After a chase, the car slammed into an embankment, and two men jumped out and fled on foot. Police caught up with Jerome Baldwin, the driver, and handcuffed him. A subsequent search yielded several guns, drugs and drug “paraphernalia.” Charged with being a felon in possession of a firearm, possession with intent to distribute and using a firearm to further drug trafficking, Baldwin moved to suppress the seized evidence on the ground that the police officers lacked reasonable suspicion when they initially ordered him to stop. The state countered that, by speeding away, Baldwin had disobeyed an order and had not been seized. A Connecticut federal court denied Baldwin’s motion and he eventually entered into a plea agreement. The 2d Circuit affirmed. To comply with an order to stop � and thus become seized � a suspect must do more than come to a fleeting stop; he must submit to police authority. It is the nature of the interaction, and not its length, that matters. Baldwin’s momentary stop did not constitute submission to police authority. EVIDENCE Mental patient faces a lower evidence standard A fair preponderance of the evidence is the appropriate legal standard for a court considering a civilly committed mental patient’s application for discharge or transfer to another facility, the Massachusetts Supreme Judicial Court held on July 30. In re Andrews, No. SJC-09777. Frank Andrews was found not guilty by reason of mental illness of the crimes of rape and incest, and he was committed to Massachusetts’ Bridgewater State Hospital. Andrews filed an application for discharge pursuant to Mass. Gen. Laws ch. 123, � 9(b), seeking a transfer from Bridgewater to a less secure facility. A trial court rejected the application, and ruled that the burden of proof was on Andrews to show that his transfer would not create a likelihood of harm. The standard of proof was beyond a reasonable doubt. Affirming in part and reversing in part, the Massachusetts Supreme Judicial Court, the state’s high court, rejected the trial court’s beyond a reasonable doubt standard and held the fair preponderance of the evidence standard to be appropriate. The court said, “The use of the beyond a reasonable doubt standard has . . . been confined to instances where its employment protects individual liberty or has symbolic value. In the few instances where we have seen fit to transpose the standard into the civil realm, it has been to achieve one or the other of these goals. In this instance, the judge employed the standard as the best means of conserving government resources . . . .This use fits neither with the traditional instances of proof beyond a reasonable doubt nor with the history of the statute in question. Indeed, given that the applicant in a � 9 (b) proceeding bears the evidentiary burden in seeking his own transfer or discharge, the use of the beyond a reasonable doubt standard here would be in significant tension with the values for which it is normally employed.” IMMIGRATION LAW Forced abortion in China is political persecution A Chinese woman who had been subjected to a forced abortion in China qualifies for the withholding of removal from the United States, the 5th U.S. Circuit Court of Appeals held on July 23. Zhu v. Gonzalez, No. 05-60891. Yuqing Zhu, a native and citizen of China, applied for asylum in the United States and the withholding of removal, claiming she was subjected to a forced abortion in China. In 1994, Zhu, who was single, became pregnant by her boyfriend. China’s family-planning policies prohibit unmarried women from having children. Zhu concluded that she had no choice but to have an abortion. In 1997, Zhu became pregnant again. Believing she faced possible imprisonment and even sterilization if she did not have an abortion, she obtained a business visa through her work and entered the United States, where her child was born in 1998. In 2000, she sought asylum and withholding of removal. An immigration judge denied Zhu’s application, concluding that the asylum application was untimely and that her abortion was not forced but voluntary. The Board of Immigration Appeals (BIA) affirmed. The 5th Circuit vacated and remanded to the BIA with instructions to clarify its holding. On remand, the BIA again affirmed, finding that Zhu “chose to have an abortion.” The 5th Circuit reversed and remanded, instructing the BIA to enter an order withholding removal. The court said that though that it didn’t have jurisdiction to review the ruling on the asylum application, it could review the denial of the withholding of removal. The court found that Zhu’s abortion was clearly forced. “We are left with no doubt that a reasonable person in Zhu’s position would objectively believe these potential harms to be very real and genuine,” the 5th Circuit wrote. “Federal cases are replete with examples of Chinese women in Zhu’s position being forced to abort their pregnancies or being forcibly sterilized.” This harm, “if carried out, would rise to the level of persecution.” INSURANCE LAW Insurer must defend oral surgeon sued over joke An insurer has a duty to defend an oral surgeon from a lawsuit stemming from a practical joke he played on one of his employees, the Washington Supreme Court ruled on July 26. Woo v. Fireman’s Fund Ins. Co., No. 77684-9. Dr. Robert C. Woo, an oral surgeon, decided to play a practical joke on Tina Alberts, one of his dental surgical assistants. Alberts’ family raised potbellied pigs. During a surgical procedure he performed on Alberts, Woo inserted temporary partial bridges, or “flippers,” shaped like boar tusks into her mouth in place of regular ones and took pictures while she was under anesthesia. Although Woo decided in the end not to show the pictures to Alberts, Woo’s staff gave Alberts the pictures on her birthday. Alberts sued Woo for multiple tort injuries. Woo asked his insurer, Fireman’s Fund Insurance Co., to defend him. The insurer refused, and Woo sued it for breach of duty to defend. The trial court granted Woo’s motion for partial summary judgment on the duty to defend. An intermediate appellate court reversed. The Washington Supreme Court reversed. The professional liability provision of Woo’s policy covers all claims resulting from the practice of dentistry. Wash Rev. Code � 18.32.020 defines a dental practice as including a person who “owns, maintains or operates an office for the practice of dentistry.” The court said that Woo’s act of inserting boar-tusk flippers into Alberts’ mouth occurred during the operation of a dental practice. INTERNATIONAL LAW Plan to distribute cocaine abroad isn’t crime in U.S. A drug conspiracy hatched in Miami involving cocaine distribution in other countries is not a crime in the United States, the 11th U.S. Circuit Court of Appeals held on July 26 in a case of first impression. U.S. v. Lopez, No. 05-15021. A Miami federal jury convicted Doris Mangeri Salazar and Ivan Lopez-Vanegas of conspiracy to distribute hundreds of kilograms of cocaine. Prosecutors had alleged that the two had brokered a deal between a Colombian drug trafficking organization and a Saudi Arabian prince, Nayef Al-Shaalan, to transport the cocaine on the prince’s airplane from Caracas, Venezuela, to Paris, for distribution in Europe. The deal was planned in Switzerland, Spain, Saudi Arabia, Colombia as well as Miami. The court sentenced Lopez and Salazar to 280 and 292 months’ imprisonment, respectively. The 11th Circuit vacated, finding that Salazar and Lopez had committed no crime against the United States. The court that neither statute at issue � 21 U.S.C. 841 (possession with intent to distribute) and 21 U.S.C. 846 (conspiracy) � expressly requires that the outlawed conduct occur in the United States. A silent statute is presumed to apply only domestically, but may apply to “extraterritorial” conduct if the nature of the law permits it and Congress intends it. The court cited U.S. v. Baker, 609 F.2d 134 (1980), which said that the drug possession with intent to distribute law does not apply to possession outside of the United States unless the possessor intends to distribute the drugs inside the United States. “Because the Court holds that 21 U.S.C. �� 841 and 846 do not apply extraterritorially, the conduct of Lopez and Salazar does not violate those statutes,” the court said. LANDLORD/TENANT LAW Landlord can take gang members as tenants A landlord doesn’t have a duty to reject prospective tenants who were gang members, the California Supreme Court held on July 30. Castaneda v. Olsher, No. S138104. Ernest Castaneda, a tenant in a mobile home park owned by George Olsher and others, was a bystander during a gang altercation at the park. He was shot and injured. Castaneda sued Olsher, contending that he had breached a duty not to rent to known gang members. A trial court granted Olsher’s motion for nonsuit, but an intermediate state appellate court reversed. Reversing, the California Supreme Court held that a landlord does not have a duty to bar gang members as tenants. Although the court conceded that a tenant’s behavior and known criminal associations may create a high level of foreseeable danger, mere gang membership does not require a landlord to reject a rental application. The court said, “Landlords, including mobilehome park owners, ordinarily have no duty to reject prospective tenants they believe, or have reason to believe, are gang members. To recognize such a duty would tend to encourage arbitrary housing discrimination and would place landlords in the untenable situation of facing potential liability whichever choice they make about a prospective tenant.” TORTS No immunity from suit for school peace officer A peace officer hired by a school board is not immune from tort liability, the Mississippi Supreme Court ruled on July 26 in a case of first impression. Knight v. Terrell, No. 2006-CA-00753-SCT. Eljean Knight, a teacher at Heidelberg High School in Heidelberg, Miss., was involved in an altercation with a student, which resulted in Knight’s death. The teacher’s son, Keith Knight, brought suit against the school and Greg Terrell, an independent contractor doing business as Terrell Security Services who had been hired by the school board as a peace officer. The trial court granted Terrell’s motion for summary judgment and dismissed the case, finding that he was immune from suit under the Mississippi Tort Claims Act. The Mississippi Supreme Court reversed. Miss. Code Ann. � 37-7-321 allows schools to hire peace officers to provide security on school campuses and Miss. Code Ann. � 37-7-323 grants these peace officers the powers of a constable. While independent contractors are generally not given immunity under the state torts act, a constable’s duties are generally immune from liability under Miss. Code Ann. � 11-46-9(1)(c). The court determined that, absent an express grant of immunity, constabulary immunity does not apply to independent contractors. Ford owes no duty to shield contractor’s family Ford motor co. does not owe a duty to protect the stepdaughter of an independent contractor from exposure to the asbestos fibers the worker carried home on his shirt, the Michigan Supreme Court ruled on July 25, in answer to a certified question from an intermediate Texas appellate court. Miller v. Ford Motor Co., No. 131517. Cleveland Roland worked for an independent contractor at a Ford plant in Dearborn, Mich. Roland’s stepdaughter, Carolyn Miller, sometimes washed Roland’s clothes from 1954 to 1965. Miller, who was never on or near the Ford plant, died in 2000 from mesothelioma. Her estate sued Ford in a Texas state court, alleging that Miller contracted the deadly disease from exposure to asbestos fibers in Roland’s clothes. The jury awarded Miller’s estate $9.5 million. An intermediate Texas appellate court asked the Michigan Supreme Court to answer a certified question on whether Ford owed a duty to Miller. The Michigan Supreme Court ruled that Ford did not owe a duty to Miller. Emphasizing that Roland worked as an independent contractor and that Miller was never at, or near, the Ford plant, the court called the relationship between Ford and Miller “highly tenuous.” And while the nature of the risk is serious, the foreseeability that someone like Miller would contract mesothelioma was low, and the burden imposing a duty on Ford in these circumstances would be great.

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