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CIVIL PRACTICE Statute of limitations not tolled if executor is minor In a wrongful death action, the statute of limitations is not tolled during the time a personal representative of a decedent’s estate is a minor. the Washington Supreme Court held on Aug. 30. Atchison v. Great W. Malting Co., No. 80034-1. William Atchison, an elevator utility worker for Great Western Malting Co., died on June 29, 2000, of lymphoma. He was unmarried and was survived only by his 15-year-old daughter, Kaela. Kaela turned 18 on March 19, 2003. After being appointed personal representative of her father’s estate on Nov. 9, 2005, Kaela brought a wrongful death action against Great Western on Feb. 10, 2006. The trial court granted Great Western’s motion to dismiss, finding that the statute of limitation had expired on June 29, 2003, three years after Atchison’s date of death. The Washington Supreme Court affirmed. Under Washington’s statutory scheme, only personal representatives may bring wrongful death suits. However, minors are disqualified from being appointed personal representatives of decedent’s estates. Wash. Rev. Code � 4.16.190 tolls the statute of limitations for “persons entitled to bring an action” during periods of personal disability or minority. The court concluded that because Kaela was not a “person entitled to bring an action” while she was a minor, the statute of limitations was not tolled during her minority. Thus, the complaint was not filed in a timely fashion. Full text of the decision Court can insist law firm get its OK for ADA suits It is within the discretion of a federal district court to sanction a law firm and its client for engaging in vexatious litigation by requiring them to obtain leave of court before filing any future Americans With Disabilities Act claims, the 9th U.S. Circuit Court of Appeals held on Aug. 31. Molski v. Evergreen Dynasty Corp., No. 05-56452. Jarek Molski, who was paralyzed from the chest down and required a wheelchair for mobility, filed more that 400 lawsuits in California federal courts. Molski sued Evergreen Dynasty Corp., owner of the Mandarin Touch Restaurant in Woodland Hills, Calif., claiming violations of the Americans With Disabilities Act (ADA) on account of its restroom door’s not being wide enough for his wheelchair. Evergreen moved to have Molski declared a vexatious litigant, requiring him to obtain leave of court before filing more ADA complaints. The court granted the motion, ordering that both Molski and the law firm representing him, Thomas E. Frankovich of San Francisco, obtain leave of court before filing any ADA cases in the Central District of California. Affirming in part, the 9th Circuit held that requiring both Molski and the Frankovich firm to seek leave of court to file any ADA lawsuits was within a district court’s discretion. The court said, “[T]he pre-filing order imposed in this case is adequately tailored to punish the past sanctionable conduct of the Frankovich Group, and, more importantly, to protect the courts and the public from any future misconduct by that law firm.” CONSTITUTIONAL LAW Academic-standards law breaches school’s rights A Texas state law requiring anything called a “seminary” to meet certain prescribed standards of religious education and training violates the religious freedom clauses of the U.S. and Texas constitutions, the Texas Supreme Court ruled on Aug. 31. HEB Ministries Inc. v. Texas Higher Education Coordinating Board, No. 03-0995. In an attempt to shut down “diploma mills,” Texas enacted legislation to set minimum standards for educational institutions awarding post-secondary degrees. In 1998, the law expanded to require schools to get a certificate of authority before awarding degrees or using specific academic terminology. One of the requirements for getting a certificate of authority was that every faculty member have an associate’s or a bachelor’s degree. Without getting the certificate, the Tyndale Theological Seminary and Bible Institute, run by a Fort Worth, Texas-based church, HEB Ministries Inc., offered what it called “equivalent” diplomas. The commissioner of higher education sent Tyndale a letter saying it was violating the state law, for, among other things, using the word “seminary.” HEB sued the state for a declaratory judgment that the law as applied to a school like Tyndale violates the establishment and free exercise clause of the First Amendment to the U.S. Constitution as well as Texas Const. art. I, � 6. The state trial court ruled for the state, and an intermediate appellate court affirmed. The Texas Supreme Court reversed, holding, “It is hard to imagine a more active involvement in religious training that in determining whether it meets the comprehensive standards [of the law], and equally hard to imagine a more direct state sponsorship of religious education than by indicating in every institution’s name and on every academic award whether the State approves the program of study.” Court wrong to abstain from video poker lawsuit A federal district court erred in dismissing a constitutional challenge to two South Carolina statutes regulating video poker on the basis of abstention under the U.S. Supreme Court’s 1943 decision, Burford v. Sun Oil Co., because the challenge neither required the federal court to adjudicate difficult questions of state law nor disrupted state efforts at complex regulation of matters of substantial public concern, the 4th U.S. Circuit Court of Appeals held on Aug. 29. Martin v. Stewart, No. 06-1829. Jimmy Martin and Lucky Strike LLC challenged certain sections of South Carolina’s video poker law in federal court. They claimed that provisions of the law banning certain games of chance and authorizing a court to destroy the machines violated the equal protection clause of the 14th Amendment to the U.S. Constitution and the Fifth Amendment’s due process clause. The court granted the state’s motion to dismiss based on abstention under the U.S. Supreme Court’s decision in Burford v. Sun Oil Co., 319 U.S. 315 (1943), according to which courts may abstain when the availability of an alternative, federal forum threatened to frustrate the purpose of a state’s complex administrative system. Burford permits abstention when federal adjudication would “unduly intrude” upon “complex state administrative processes” because either: (1) “there are difficult questions of state law . . . whose importance transcends the result in the case then at bar”; or (2) federal review would disrupt “state efforts to establish a coherent policy with respect to a matter of substantial public concern.” Reversing, the 4th Circuit held that the video poker challenge was outside the narrow category of cases to with the Burford abstention applied. The court said, “federal adjudication in this case would not require a federal court to ‘answer disputed questions of state law,’ nor would the relief sought establish ‘parallel federal and state oversight.’ Although the statutes challenged here regulate gambling . . . issues of federal law � the constitutionality of those statutes under the Fourteenth Amendment � dominate this action . . . . Burford abstention is ‘inappropriate’ in such a situation . . . [A]djudication of Martin’s claims . . . neither presents difficult questions of state law . . . nor threatens the State’s interest in uniform regulation.” Parts of Texas bail bond law are unconstitutional Portions of a Texas statute restricting how bail bond companies may seek new customers violates commercial free speech rights, the 5th U.S. Circuit Court of Appeals held on Aug. 28. Pruett v. Harris Co. Bail Bond Board, No. 05-20714. Bail bondsmen Carl Pruett and Scott Martin filed a civil rights suit in a Texas federal court against Harris County, Texas, and the Harris County Bail Bond Board challenging, on a variety of state and federal constitutional grounds, including the First Amendment, a 2003 Texas statute governing solicitation of customers, Texas Occ. Code Ann. � 1704.109. At issue were two sections: Section (b)(1), which prohibits any solicitation regarding an outstanding warrant unless the subject of the warrant is a previous customer; and Section (b)(2), which bans solicitation in person or by phone between 9 p.m. and 9 a.m. and within 24 hours of an arrest. The trial judge granted the bondsmen’s motion for summary judgment, holding both sections of the statute to be unconstitutional. The 5th Circuit affirmed in part and reversed in part. The court held that government may restrict commercial speech if the state asserts a substantial interest achieved by the speech restrictions and the restriction directly advances the state interest. But if the governmental interest could be served just as well with less restriction on commercial speech, the excessive restrictions cannot survive. The circuit court affirmed on Section (b)(1), holding that, as far as prevention of solicitation was concerned, Harris County has not yet engaged in the narrow tailoring demanded by the First Amendment. On Section (b)(2), the circuit court reversed, holding that a ban on in-person and late-night telephone solicitation “directly and substantially” furthers privacy and the prevention of harassing solicitation, and is narrowly tailored to furthering that goal. CRIMINAL PRACTICE Refusal to testify at trial didn’t violate plea deal A trial court erred in voiding a defendant’s plea agreement based on his use at trial of his Fifth Amendment protection against self-incrimination, given that he had already provided testimony in a previous hearing and that the government had received the benefit of its bargain, the Connecticut Supreme Court held on Sept. 4. State v. Rivers, No. SC17665. Jonathan Rivers entered into a plea agreement with prosecutors in which he agreed to cooperate against an accomplice in a murder case. The agreement did not provide specifically that such cooperation would include testimony at trial. Although Rivers provided testimony at the accomplice’s probable cause hearing, he refused to testify at trial, invoking his Fifth Amendment protection against self-incrimination. Nevertheless, prosecutors were able to use Rivers’ testimony from the probable cause hearing, and the accomplice was convicted. Prosecutors then reinstated all charges against Rivers, arguing that he violated the plea agreement, making it null and void. Rivers countered that the agreement did not require testimony at trial and that, in being able to use Rivers’ testimony from the probable cause hearing, the government received the benefit of the bargain. A trial court denied Rivers’ motion, ruling that he had acted in bad faith. Reversing, the Connecticut Supreme Court said that Rivers was entitled to specific performance on the plea agreement. The court said, “[I]t is undisputed that the defendant testified truthfully at the probable cause hearing, that the state was able to use that testimony . . . .In light of these facts and the omission of an express requirement that the defendant testify, we reject the trial court’s conclusion that the defendant acted in bad faith.” CRIMINAL PRACTICE Refusal to testify at trial didn’t violate plea deal A prosecutor violates due process rights by vindictively refusing to request a reduced sentence for a defendant who not only substantially helps authorities prosecute other criminals but also invokes his own constitutional right to a jury trial, the 11th U.S. Circuit Court of Appeals held on Aug. 31 in a case of first impression. U.S. v. Dorsey, No. 06-16698. James Dorsey was convicted for drug conspiracy and drug distribution. His sentencing range under the Federal Sentencing Guidelines was between 14 and 17 1/2 years. At sentencing, he argued that the government had promised to file a motion for a reduced sentence under U.S. Sentencing Guidelines Manual � 5K1.1, but then refused to do so as punishment for his invoking his Sixth Amendment right to a jury trial. Under Section 5K1.1, the government can request a below-guidelines sentence for defendants who provide “substantial assistance” with the investigation or prosecution of other crimes. Dorsey claimed that he provided such assistance, then exercised his right to a jury trial. A Florida federal trial judge denied Dorsey’s motion without explanation. The 11th Circuit affirmed in part, vacated and remanded. The court noted that it had not previously considered whether it is unconstitutional for the government to punish a defendant for exercising his right to a jury trial by refusing to file a Section 5K1.1 motion. The court said that, though a judge can’t grant a reduced sentence without a government motion, the court can review a prosecutor’s refusal to file a substantial-assistance motion and can grant a remedy if the refusal was based on an “unconstitutional motive.” The government can refuse to seek a reduced sentence, but to punish a defendant for exercising a clear legal right “is a due process violation of the most basic sort.” However, the court found that there were insufficient facts to determine whether a constitutional violation had occurred in the present case. IMMIGRATION LAW Attack on in-state tuition rates for illegals is nixed Legal U.S. residents who are not Kansas residents and are ineligible for resident tuition rates at Kansas state universities lack standing to challenge a Kansas statute that entitles illegal aliens to resident tuition rates, the 10th U.S. Circuit Court of Appeals held on Aug. 30. Day v. Bond, No. 05-3309. Kansas Stat. Ann. � 76-731(a) permits certain illegal aliens to qualify for in-state tuition rates at state universities. Some Kansas students who were undocumented, illegal aliens and who did not otherwise qualify for Kansas resident tuition paid resident rates to attend state universities. Some students at state universities in Kansas and some parents sued, claiming the statute unlawfully discriminates against U.S. citizens who are not Kansas residents, in violation of the 14th Amendment’s equal protection clause and is pre-empted by 8 U.S.C. � 1623, according to which, an illegal alien “shall not be eligible on the basis of residence within a State . . . for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit (in no less an amount, duration, and scope) without regard to whether the citizen or national is such a resident.” The plaintiff students were not legal Kansas residents and did not qualify for resident tuition under Kansas law. A Kansas federal court granted summary judgment against the plaintiffs, saying they lacked standing on their pre-emption and equal protection claims and that Section 1623 doesn’t offer a private right of action for enforcement of its terms. Affirming, the 10th Circuit held that the plaintiffs’ alleged injuries � which mostly involved the fiscal differential between nonresident tuition rates they paid and resident tuition rates paid by the illegal aliens � did not satisfy the “injury” prong of the standing inquiry because they did not show that their injuries were concrete, and they could not show that their injuries were caused by the challenged statute or that their injuries could be redressed by a decision in their favor. The court said “none of these Plaintiffs would be eligible to pay resident tuition under � 76-731a even if the allegedly discriminatory test favoring illegal aliens were stricken.” Tenn. may deny driver’s license to legal resident Tennessee’s driver’s license law limiting licenses to U.S. citizens and lawful permanent residents is constitutionally sound, 6th U.S. Circuit Court of Appeals ruled on Aug. 28. League of United Latin American Citizens v. Bredesen, No. 06-5306. Enacted in 2004, Tennessee’s driver’s license law conditions receipt of a license or an identification card on an applicant’s proof that he is a U.S. citizen or a lawful permanent resident. If neither can be established, the applicant can still get a certificate for driving. The League of United Latin American Citizens challenged the law, arguing that it violates aliens’ right to equal protection and their right to travel. Though lawful temporary resident aliens may obtain a “certificate for driving,” this is not an adequate substitute, the plaintiffs claimed, because unlike a driver license, a certificate is “not valid for identification.” A Tennessee federal court dismissed the suit. The 6th Circuit affirmed. Because neither illegal aliens nor lawful temporary residents are suspect classes for purposes of equal protection analysis, the court said, the Tennessee law may be subjected to “rational basis” scrutiny. The distinction between lawful permanent and lawful temporary residents mirrors the federal government’s decision to grant permanent resident status to some aliens but not to others. Also, the plaintiffs haven’t alleged any actual harm from the law, only the possibility that the certificate may not be acceptable to law enforcement personnel in some circumstances. TORTS No attractive nuisance if child mostly at fault In attractive nuisance cases, the nuisance doesn’t have to be the thing that lures a child onto the premises, but the child cannot be mostly to blame, the South Carolina Supreme Court ruled Aug. 27. Henson v. International Paper Co., No. 26374. A 10-year-old boy and his friends were walking along a canal, owned and operated by International Paper Co., on the way to what was described as a “dirt jumping hill.” The boys used a “pipe bridge” to cross from one side of the canal to the other. The boy slipped and, unable to swim, drowned. The boy’s parents filed a wrongful death action against International Paper alleging negligence, attractive nuisance and unguarded dangerous condition. The state trial court directed a verdict for International Paper, saying the attractive nuisance doctrine doesn’t apply unless the injured child was attracted onto the defendant’s property by the nuisance that caused the injury. Because Terry was attracted onto the property by a “dirt jumping hill” and not by the canal, there was no basis for the attractive nuisance claim. The jury attributed 25% of the fault to International Paper and 75% of the fault to the boy. An intermediate appellate court affirmed. The South Carolina Supreme Court affirmed, holding that, though the trial court erred in finding that the attractive nuisance doctrine requires the injured child to be attracted onto the defendant’s property by the very temptation that caused the injury, the error was harmless. Because the jury had allotted to the boy the majority of the fault for his injury, recovery under the attractive nuisance theory was not possible. Attractive nuisance and unguarded dangerous condition are exceptions to the general rule that there is no cause of action when a trespasser is injured by a dangerous condition on another’s land. However, the court said, “we believe that by recognizing a duty to protect children from dangers to which they will not be attracted, and by disregarding the element of the child’s attraction onto a landowner’s property, any significant distinction between attractive nuisance and unguarded dangerous condition has outlived its usefulness.”

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