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CONSTITUTIONAL LAW Horse racing law is an impermissible special law A Florida state law governing broadcasting of horse racing is an unconstitutional special law enacted in the guise of a general law because there is no reasonable possibility the law would ever apply anywhere but one area of the state, the Florida Supreme Court held on Sept. 6. Florida Dep’t of Bus. And Prof’l Reg. v. Gulfstream Park Racing Ass’n Inc., nos. SC05-2130, SC05-2131. Fla. Stat. ch. 550.615(6) prohibited horse racing tracks from selling broadcasts of their events in their market area if they held a thoroughbred racing permit and were within 25 miles of at least two other horse race permitholders. Florida’s Department of Business and Professional Regulation filed an administrative complaint against Gulfstream Park Racing Association Inc., alleging it had engaged in an unauthorized exchange of intertrack wagering signals. Gulfstream challenged the law, arguing that it was an unconstitutional special law because there was no reasonable possibility that the law would ever apply anywhere in the state other than where Gulfstream was situated. A trial court and an intermediate appellate court held for Gulfstream. Affirming, the Florida Supreme Court said “Section 550.615(6) prohibits thoroughbred permitholders from engaging in intertrack wagering in ‘any area of the state where there are three or more horse race permitholders within 25 miles of each other.’ [The courts] concluded that at the time the statute was amended in 1996, these conditions existed only in the area where Gulfstream was located, and there was no reasonable possibility that they would ever exist in another part of the state . . . .As a result, we conclude that section 550.615(6) is an unconstitutional special law enacted in the guise of a general law.” Full text of the decision Enforce AA attendance First Amendment breach A parole officer is not entitled to qualified immunity from a parolee’s civil suit that alleges the parole officer violated his First Amendment rights by forcing him to attend Alcoholics Anonymous and Narcotics Anonymous meetings, the 9th U.S. Circuit Court of Appeals held on Sept. 7 in a case of first impression. Inouye v. Kemna, No. 06-15474. Ricky Inouye, a methamphetamine addict, was convicted of various drug crimes. As a condition of his parole, his parole officer, Mark Nanamori, required him to attend Alcoholics Anonymous (AA) and Narcotics Anonymous (NA) meetings. Inouye refused because of the religious nature of the AA and NA programs. Inouye’s parole was revoked. Inouye sued Nanamori and others in state court under 42 U.S.C. 1983, arguing the compulsory AA and NA attendance violated the establishment and the free exercise clauses of the First Amendment. The case was removed to federal court, which ruled for Nanamori, holding that, while he did violate Inouye’s First Amendment rights, he was entitled to qualified immunity because the law was unsettled at the time. Reversing, the 9th Circuit held that the law was clearly established that compulsory attendance at religious-based programs violated the First Amendment. Citing Kerr v. Farrey, 95 F.3d 472 (7th Cir. 1996), the court said, “Nanamori’s mistake as to the law was not reasonable. An officer in Nanamori’s position, having available near-unanimous judicial invalidation of religious coercion in this and similar contexts, with a lawsuit in progress against the prison system for mandating participation in a similar program, and having Kerr in hand, should not have reasonably repeated the same mistake.” CRIMINAL PRACTICE Waiver of jury trial right must be in open court A waiver of the right to a jury trial must not only be made in writing, signed by the defendant, and filed in the record, but must also be made in open court, the Ohio Supreme Court held on Sept. 5. State v. Lomax, No. 2006-0899. Keith Lomax was indicted for murder and signed papers waiving his right to a jury trial. An Ohio judge conducted a bench trial, during which Lomax was convicted and sentenced to 15 years-to-life in prison. On appeal, Lomax argued that his jury waiver was not properly executed because it was not made in open court before a trial judge, as required by Ohio Rev. Code Ann. � 2945.05. An intermediate appellate court agreed with Lomax, holding that merely mentioning the waiver was insufficient to comply with the open-court requirement. The state asked the Ohio Supreme Court to find that there was no constitutional requirement for a colloquy in open court to make an otherwise valid jury waiver binding. The Ohio Supreme Court affirmed. To be valid, a waiver must be in writing, signed by the defendant, filed, made part of the record and made in open court. Lomax’s waiver met four of the five requirements. To comply with the open-court requirement, a trial court does not need to engage in a lengthy exchange with the defendant, the court wrote. “There must be, however, some evidence in the record of the proceedings that the defendant acknowledged the waiver to the trial court while in the presence of counsel . . . .Because there is no indication from the transcript, nor any other evidence in the record, that Lomax waived his right to a jury trial in open court,” the statute’s requirements were not met. Hobbs Act doesn’t cover conspiracy to pay official A person who bribes a public official cannot be convicted of conspiring to extort property from himself in violation of the Hobbs Act, the 6th U.S. Circuit Court of Appeals ruled on Sept. 6. U.S. v. Brock, nos. 05-6621, -6622, -6623 and -6645. Gary Brock and his brother Jerry ran a bail bonding company in Chattanooga, Tenn. In 2001, one of their clients skipped town. Jerry Brock paid a county courthouse clerk $100 to remove the forfeiture hearing from the docket so the Brocks would not lose their bond money. The Brocks and the clerk, Scott Simcox, kept this arrangement, as well as a traffic ticket-fixing scheme, going for more than two years. Federal agents pressured Simcox into wearing a wire in a meeting with the Brocks about the fixing of another case. Based on the wire evidence, the Brocks were charged under the Hobbs Act with conspiring with Simcox to extort money. A Tennessee federal court sentenced the Brocks to 21 months in prison. The 6th Circuit reversed. The Hobbs Act is meant to prohibit public officials from obtaining property from others by extortion. However, the Brocks didn’t commit extortion, because they didn’t “obtain . . . property from another” person. Also, not being public officials they couldn’t have obtained any property “under color of official right.” To be covered by the act, the court said, the “conspirators” � Simcox and the Brocks � would have to have formed an “agreement to obtain property from someone outside the conspiracy.” Yet that didn’t happen. “These three people did not agree, and could not have agreed, to obtain property from ‘another’ when no other person was involved � when the property, so far as the record shows, went from one co-conspirator (one of the Brocks) to another (Simcox).” Forfeiture law preempts Fla. Homestead exemption A provision of the federal criminal forfeiture statute pre-empts the Florida Constitution’s homestead exemption, allowing the federal government to seek surrender of a defendant’s assets that otherwise would be exempt from civil or criminal forfeiture, the 11th U.S. Circuit Court of Appeals held on Sept. 5. U.S. v. Fleet, No. 06-12454. For his role in a fraud scheme bilking $11 million from two investors, David Fleet was convicted of wire fraud, money laundering, conspiracy and lying to the FBI. Under the money laundering statute, 18 U.S.C. 1957, the government may seek forfeiture of any property involved in, or traceable to, the crime. However, if the defendant made the subject property unavailable, the government may seek forfeiture of any other property of the defendant’s, under the statute’s asset-substitute provision, 21 U.S.C. 853(p). A Florida federal judge ordered Fleet to forfeit $295,000 in cash, but the defendant couldn’t pay it. Prosecutors filed a motion under the forfeiture law’s property-substitute provision, asking the judge to compel forfeiture of Fleet’s interest in his house and three cars. Fleet owned one car outright, but he and his wife jointly owned the other two cars and the house. Fleet opposed the motion, arguing that the homestead exemption in Fla. Const. art. X � 4 forbids civil or criminal forfeiture of homestead property. The trial judge ruled that the defendant’s half interest in the marital property was a substitute asset subject to forfeiture. The 11th Circuit affirmed. In 21 U.S.C. 853(p)(2), Congress said that “the court shall order the forfeiture of any other property of the defendant.” The court said, “The word ‘shall’ does not convey discretion . . . .The word ‘any’ is not susceptible to fudging either. It does not mean some or all but a few, but instead means all. Congress did not say that some or most substitute property could be forfeited, but instead said that ‘any’ of it could be, up to the value of the missing assets that were used to facilitate, or were derived from, the crime. There is no stated exception for homestead or entireties property.” Unlike civil forfeiture, the criminal forfeiture statute “contains no innocent owner exception. Carving one out by judicial action not only would usurp the legislative role but also would ignore an important distinction between civil and criminal forfeiture.” FAMILY LAW Adoptive parents must show mother’s consent A child’s adoptive parents have the burden of providing prima facie evidence of the birth mother’s consent to the adoption, the Kansas Supreme Court held on Sept. 7. In the Matter of the Adoption of X.J.A., No. 96,003. Three days after the birth of her child, a mother signed an adoption consent form agreeing to the adoption of the newborn by a couple. The signature was not signed before a notary but was separately attested to by a notary the same day. The couple filed a petition for adoption, attaching a copy of the consent form. Some months later, the trial court found the couple fit to care for the child. Shortly after the fitness hearing, the birth mother filed a motion to withdraw consent to adopt. Denying the mother’s motion for summary judgment, the trial court granted parental rights to the adoptive parents because the birth mother had failed to meet her burden of showing that her consent was involuntary. An intermediate appellate court reversed, ruling that because there had been no substantial compliance with Kansas’ Uniform Law on Notarial Acts, Kan. Stat. Ann. � 53-501, the trial court had unconstitutionally shifted the statutory burden of proof to the mother to show that the consent was not given freely and voluntarily. The Kansas Supreme Court reversed, holding that the trial court had correctly placed the burden of providing prima facie evidence on the adoptive parents on the issue of the birth mother’s signature. The trial court had also correctly placed the burden of rebutting this prima facie evidence on the mother. The court also correctly determined that the mother had failed in her rebuttal and that the signature was therefore established as hers. But the court erred in shifting the burden of proving involuntary consent to the mother once the adoptive parents had established her signature on the consent because the prima facie evidence that the consent was voluntary was missing. No prima facie case on the voluntariness of the consent had been presented. The court remanded for the district court to determine whether the adoptive parents had made their prima facie showing as to the voluntariness of the mother’s consent. GOVERNMENT Reporter must testify about public meeting There is no qualified privilege to protect a reporter from testifying about events he witnessed at a public meeting, the Vermont Supreme Court ruled on Sept. 7. Spooner v. Town of Topsham, No. 2007 VT 98. The members of a town selectboard interviewed in closed session several candidates for the position of road foreman. They announced the winning job candidate’s name in a meeting open to the public. One week later, Journal Opinion, a weekly newspaper based in Bradford, Vt., published an article by Hank Buermeyer, who had attended the meeting as a reporter for the paper. The article quoted two of the selectboard members as saying they went with the winning candidate because he was younger. James Spooner, who was passed over for the job, filed an age-discrimination suit against the town. The town claimed Spooner didn’t get the job because he was related to several members of the town’s government. Spooner issued a subpoena to depose Buermeyer. The court held that the reporter was entitled to assert a qualified privilege to withhold his testimony unless the plaintiff could show that the information sought was relevant to a significant issue in the case, and was not reasonably obtainable from other sources. Disclosure, the court said, would exert a “chilling” effect on the “willingness of journalists to attend certain public meetings.” The Vermont Supreme Court reversed, saying the information the plaintiff sought not only lacked confidentiality, it was also available to virtually every other member of the public who attended the selectboard hearing and heard the statements made by the selectboard members. The court said, “A number of courts have concluded that, where the information sought derives from the reporter’s eyewitness observations of a public event, virtually no First Amendment interests are implicated and the qualified reporter’s privilege simply does not apply . . . . Others, while applying the qualified privilege, have recognized that the First Amendment interest is particularly weak where the information sought consists of nonconfidential observations of events open to the public.” Compelling the reporter’s testimony in this case will not unduly burden the newsgathering function of the press. The court said, “No confidential sources or materials are at risk. No unpublished information, notes, or other resource materials that might infringe on the newspaper’s editorial autonomy are sought by plaintiff. Indeed, plaintiff seeks only to question the reporter about statements which the reporter heard at a hearing accessible to every other member of the public.” IMMIGRATION LAW Alien able to reopen his case after he’s removed The Board of Immigration Appeals erred in refusing to allow an immigration applicant to reopen his proceedings after he had been removed from the United States because the federal regulation on which the BIA based its decision conflicted with clear statutory language, the 4th U.S. Circuit Court of Appeals held on Sept. 6. William v. Gonzales, No. 06-1284 Tunbosom William, a Nigerian national, became a permanent legal resident of the United States in 1996. However, he pleaded guilty to a Maryland state charge of receipt of a stolen credit card, and the former Immigration and Naturalization Service (INS) deemed him removable as an aggravated felon. An immigration judge held William to be removable, and the BIA affirmed. He was removed in 2005. William moved to reopen his proceedings, but the BIA refused, holding that, because William had already been removed from the United States, 8 C.F.R. 1003.2(d) barred the filing of a motion to reopen. Granting William’s petition and vacating the BIA’s order, the 4th Circuit held that 8 C.F.R. 1003.2(d) was invalid. Specifically, the regulation conflicted with the clear statutory language of 8 U.S.C. 1229a(c)(7)(A), which provided that “[a]n alien may file one motion to reopen proceedings under this section.” Rejecting the government’s argument that, because the statute was silent on the issue of whether the alien had to be in the United States, the government was free to promulgate regulations with such a requirement, the court said, “We find that � 1229a(c)(7)(A) unambiguously provides an alien with the right to file one motion to reopen, regardless of whether he is within or without the country. This is so because, in providing that ‘an alien may file,’ the statute does not distinguish between those aliens abroad and those within the country � both fall within the class denominated by the words ‘an alien.’ ” TORTS Suit against doctor over his ex parte meeting fails A plaintiff failed to prove that an alleged violation of the physician-patient privilege � his doctor’s ex parte communications with opposing counsel � was the cause of his emotional distress, the Louisiana Supreme Court ruled on Sept. 5. Coutee v. Beurlot, No. 06-C-2943. Delton Ray Coutee was injured in a slip-and-fall accident while working as a roughneck for Global Marine Drilling Co. Coutee brought a maritime action under the Jones Act against Global. (The Jones Act permits injured seamen to seek compensation for injuries resulting from the negligence of their employers or co-workers during the course of their employment on a vessel.) Coutee saw Dr. Rayland K. Beurlot, a specialist in physical medicine and rehabilitation. Beurlot concluded that he could perform only light- to medium-level work. Prior to trial, Beurlot was deposed and reiterated the conclusions from his examination. After the deposition, Beurlot met with Lawrence R. DeMarkay, Global’s attorney, to discuss documents that contained information revealing that Coutee had been performing heavy labor for his new employer without ill effect. Based on this new information, Beurlot testified at trial that Coutee’s work capacity was of a medium-to-heavy level, prompting the trial court to award Coutee only maintenance and cure benefits without general damages. Coutee sued Beurlot, alleging that his change of testimony came about as a direct result of Beurlot’s ex parte meeting with DeMarcay, and that Beurlot had breached the physician-patient privilege. Coutee claimed damages for the invasion of his privacy, as well as the intentional infliction of emotional distress for damages, based on the breach of the physician-patient privilege. The trial court awarded Coutee $20,000 in damages for emotional distress. An intermediate appellate court affirmed, but reduced the damages to $10,000. The Louisiana Supreme Court reversed, holding that any emotional distress that Coutee may have suffered was caused by Beurlot’s testimony at trial, which is clearly not privileged, rather than by the ex parte meeting between him and Global’s attorney. Further, the damages he claims are those that are the result of the inherent characteristics of the adversarial nature of trial. Most litigants who lose at trial suffer some form of mental anguish or emotional distress. The court said, “Because we have determined that the plaintiff failed to prove two necessary elements, causation and damages, of any claim that he might have made against Dr. Beurlot, we find it unnecessary to discuss whether or not Dr. Beurlot’s giving of a new, different opinion at the ex parte meeting constituted a violation of the doctor-patient privilege.”

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