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CIVIL PRACTICE ‘Younger’ rule applies in prerecorded message suit A phone-dialing company that leaves prerecorded political messages may not challenge in federal court Indiana’s law barring the practice, since a state court case on the issue is pending, the 7th U.S. Circuit Court of Appeals held on Sept. 12. FreeEats.com Inc. v. State of Indiana, No. 06-3900. FreeEats.com Inc., a provider of prerecorded telephone messages, filed for a preliminary injunction and declaratory judgment in an Indiana federal court seeking to prevent Indiana from enforcing its Automated Dialing Machine Statute, which prohibits use of automatic dialing machines for sending prerecorded messages to Indiana telephone subscribers. Earlier, Indiana had filed suit in Indiana state court against one of FreeEats’ clients � the Economic Freedom Fund � and unknown prerecorded telephone message providers, seeking to enforce the statute. Indiana then sought to stay the federal proceedings pending the resolution of the state case pursuant to the U.S. Supreme Court’s ruling, Younger v. Harris, 401 U.S. 37 (1971). The district court denied Indiana’s motion, holding that the case involves important federal issues. The court also denied FreeEats’ motion for a preliminary injunction, holding that it had not shown a likelihood of success on the merits of its claim. Reversing, the 7th Circuit said the Younger abstention doctrine is applicable because Indiana filed its complaint in state court before FreeEats filed its complaint; Indiana’s state court complaint seeking to enforce the statute implicated important state interests; the Indiana courts offer an adequate opportunity for review of FreeEats’ federal pre-emption and constitutional claims; and FreeEats did not demonstrate the existence of “exceptional circumstances” that would exempt this case from the Younger holding. Full text of the decision CIVIL RIGHTS College can decline to certify all-male fraternity A college can deny official recognition to an all-male fraternity because its exclusion of female members violates the school’s anti-discrimination policy, the 2d U.S. Circuit Court of Appeals ruled on Sept. 13. Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City University of New York, No. 06-4111. Chi Iota Colony, an all-male fraternity that draws all but one of its nearly 20 members from the College of Staten Island student body, applied to the school for official recognition. Saying the fraternity’s all-male membership policy was at odds with the college’s nondiscrimination policy, the college refused to certify the fraternity unless it started accepting women. A New York federal court granted the fraternity a preliminary injunction, ruling that the school’s policy burdened the fraternity’s right to intimate association and that the school’s anti-discrimination policy was not narrowly tailored to serve a compelling state interest. The 2d Circuit reversed, holding that the lower court had wrongly applied the strict-scrutiny test because not all free-association claims are strongly protected by the First Amendment. The associational interest here is low because there is no limit on the group’s size, and, though it initially accepts only certain members each year, the fraternity also stops associating with members who graduated the previous year. Also, the fraternity’s purposes are generally inclusive, which belies a claim of intimate association, and many of its activities involve nonmembers. CONSTITUTIONAL LAW Bad warrant is no breach of Fourth Amendment A Texas judge wrongly denied immunity to police officers who searched a doctor’s home and seized a large cache of weapons and explosives, the 5th U.S. Circuit Court of Appeals held on Sept. 13. Zarnow v. City of Wichita Falls, No. 06-10693. Wichita Falls, Texas, police officers responded to a call from Clinics of North Texas employees who discovered a gun, ammunition and blasting caps inside the office desk of Dr. Allen Zarnow, who was on vacation. Police obtained a search warrant for a locked file cabinet at the clinic and for the doctor’s home. Arriving at Zarnow’s home to execute the search warrant, police discovered he had returned from vacation. Zarnow told police he had all the necessary documents for the weapons, including a dealer’s license. Zarnow showed the officers the papers and agreed to a search. The police seized several thousand rounds of ammunition, hundreds of firearms, silencers and a stun gun. Zarnow was jailed and bond was set at $500,000. A state grand jury refused to indict Zarnow, who demanded the police return the seized items. Some were returned but many were lost. He filed suit and sought damages under 42 U.S.C. 1983 and 1988, alleging that police violated his Fourth Amendment right against unreasonable search and seizure. The officers presented a qualified immunity defense. A Texas federal judge dismissed all of Zarnow’s claims except for the Fourth Amendment allegations. The 5th Circuit reversed, holding that, for Zarnow to overcome the officers’ qualified immunity defense, he must produce evidence showing that his Fourth Amendment rights were violated and that the violation was unreasonable. The court said the search of Zarnow’s home violated his constitutional rights because the warrant lacked probable cause; the blasting caps found in the doctor’s desk are not banned explosive devices under Texas law. However, that constitutional violation was not unreasonable. The court said, “Zarnow was a medical doctor, not a commercial miner or demolition expert. As such, these items were disconcertingly out-of-place inside a health care facility. Considering these facts together, it was not unreasonable for an officer to believe that Zarnow possessed the blasting caps and fuse materials with the intent to combine the components into an explosive weapon for use in a criminal endeavor.” CRIMINAL PRACTICE Not made for fighting, a box cutter isn’t a weapon A box cutter is not a weapon, the Virginia Supreme Court held on Sept. 14. Harris v. Commonwealth of Va., No. 061719. When Joseph H. Harris, a convicted felon, was arrested for public intoxication, a law enforcement officer found a box cutter in Harris’ pocket. He was indicted for possession of a concealed weapon by a felon, a violation of Va. Code Ann. � 18.2-308.2(A). At trial, the arresting officer testified that the box cutter contained two razor blades, one that extended and retracted by moving a lever on the handle. Harris’ sister testified that the box cutter belonged to her and that Harris had used it to install a carpet in her living room on the night of his arrest. Harris argued that the box cutter was not a weapon, but a tool. A Virginia trial judge disagreed, citing O’Banion v. Commonwealth, 33 Va. App. 47, 59, (2000), which held that a box cutter is a weapon that convicted felons may not legally possess. Harris was convicted, and an intermediate appellate court affirmed. The Virginia Supreme Court reversed, noting that Section 18.2-308.2(A) says a felon may not carry any hidden weapon, including knives, razors or “weapon of like kind.” The court said, “Merely because a box cutter contains a sharp edged, razor-type blade that is retractable does not mean that a box cutter meets the definition of the item ‘razor’ enumerated in Code � 18.2-308(A).” Nor is a box cutter a “weapon of like kind.” If it were, it would be designed for fighting or commonly understood to be a weapon. Probation terms aren’t final when imposed A trial court retains jurisdiction to modify the terms of a criminal defendant’s sentence even after the defendant’s case is concluded and the defendant has begun serving his sentence, the Connecticut Supreme Court held on Sept. 11. State v. Fowlkes, No. SC 17835. Alan Fowlkes pleaded guilty to second-degree assault after an altercation with his girlfriend, and was sentenced to five years in prison with part of the sentence suspended. After the conclusion of Fowlkes’ trial and after he began serving his sentence, the trial court granted the state’s motion to modify the terms of his probation to require him to pay restitution for his girlfriend’s medical expenses. Fowlkes appealed, arguing that, once he had begun serving his sentence, the trial court had lost jurisdiction to modify his probation. Affirming, the Connecticut Supreme Court said, “[T]he term of probation or conditional discharge, unlike the sentence of a term of imprisonment, does not become final when imposed. If a sentence of probation is ‘revocable’ and ‘tentative,’ and can be ‘altered or revoked’ without any temporal restriction in the statute itself, then it is difficult to see how a court lacks subject matter jurisdiction to modify the conditions of probation after the imposition of sentence.” Evidence from suggestive photo lineup admissible Although a photo lineup was impermissively suggestive, a trial court did not err in admitting an out-of-court identification based on the lineup, the 4th U.S. Circuit Court of Appeals held on Sept. 11. U.S. v. Saunders, No. 05-5238. After the robbery of a Baltimore liquor store, the store’s clerk, Tony Burton, gave police a description of the alleged robbers and their getaway vehicle. When police stopped a van matching the description, Rodney Saunders got out of the car and ran, dropping a gun in the process. Police arrested Saunders, an African-American, and used his photograph in a photo lineup with five other African-American men. However, Saunders’ photo had different background and lighting, causing him to look much darker than the men in the other photos. Burton identified Saunders. Saunders moved to exclude evidence of the lineup, arguing that it was impermissively suggestive. A Maryland federal court denied the motion. Affirming, the 4th Circuit said that, though the photo lineup was impermissively suggestive, the trial court did not err in admitting it as evidence. The court said, “Burton had sufficient opportunity to view Saunders during the robbery; his initial description of Saunders was generally accurate; the photo identification took place shortly after the robbery when Burton’s recollection was fresh; and there is other evidence connecting Saunders to the robbery . . . .Accordingly, the admission of evidence of the out-of-court identification did not violate Saunders’s right to due process” GOVERNMENT Governor’s invitation list to hunt isn’t public record The invitation list to the South Dakota governor’s pheasant hunt is not subject to public disclosure, the South Dakota Supreme Court ruled on Sept. 12. Argus Leader v. Hagen, No. 24191. The Sioux Falls, S.D., Argus Leader filed for a writ of mandamus to see the invitation list to the 2005 Governor’s Invitational Pheasant Hunt, an economic development event sponsored by the governor’s office and the state Department of Tourism and State Development. The trial court denied the writ, ruling that the governor had discretion on whether to make the invitation list public; the court also held that the list did not have to be open for inspection because no statute mandated its retention. The newspaper appealed, citing S.D. Codified Laws � 1-27 and arguing that, because the hunt is an official government function, the list is a public agency record open to public inspection. The statute says that if “the keeping of a record . . . is required of an officer or public servant under any statute . . . the officer or public servant shall keep the record . . . available and open to inspection.” The South Dakota Supreme Court affirmed, holding that the paper’s interpretation of Section 1-27 would make every document generated by or in the government’s possession, including “ephemeral notes and phone messages, a public record.” There is no statute requiring that an invitation list be maintained. And the department secretary has broad discretion in deciding whether to release any information given to the economic development office within the department. The secretary exercised his discretion here because he felt that disclosure could jeopardize some business prospects, and some people on the invitation list were worried about unwanted solicitations. Suit against Caterpillar on Israeli bulldozers fails The families of an American peace activist and Palestinians who were killed or injured by Israeli Defense Forces (IDF) as the Israelis bulldozed the homes of Palestinians using bulldozers supplied by Caterpillar Inc. had no cause of action against Caterpillar because the U.S. government paid for the bulldozers, making the issue a nonjusticiable political question, the 9th U.S. Circuit Court of Appeals held on Sept. 17. Corrie v. Caterpillar Inc., No. 05-36210. Rachel Corrie, an American peace activist, was killed by Israeli Defense Forces as she attempted to stop the Israelis from bulldozing Palestinian homes. Corrie’s mother and the families of Palestinians killed by or injured by the Israelis as they bulldozed Palestinian homes sued Caterpillar Inc., which supplied the bulldozers. A state of Washington federal court dismissed the suit for lack of jurisdiction, holding that � because the U.S. government paid for the bulldozers � the issue was a political question, and the courts have no jurisdiction over the matter. Affirming, the 9th Circuit said, “The decisive factor here is that Caterpillar’s sales to Israel were paid for by the United States. Though mindful that we must analyze each of the plaintiffs’ ‘individual claims,’ each claim unavoidably rests on the singular premise that Caterpillar should not have sold its bulldozers to the IDF. Yet these sales were financed by the executive branch pursuant to a congressionally enacted program calling for executive discretion as to what lies in the foreign policy and national security interests of the United States . . . .[I]t is not the role of the courts to indirectly indict Israel for violating international law with military equipment the United States government provided and continues to provide.” TORTS No duty on doctor to say embryo is human being A gynecologist does not have a duty to tell a pregnant woman that her embryo is an “existing living human being” before she receives an abortion, the New Jersey Supreme Court ruled on Sept. 12. Acuna v. Turkish, No. A-15-06. When Rosa Acuna, a 29-year-old mother of two, discovered she was between six and eight weeks pregnant, her gynecologist supposedly told her it was just blood inside her and that she would probably only have three months to live if she carried the pregnancy to term because of pre-existing kidney problems. Dr. Sheldon Turkish denied making these statements. Acuna signed an abortion consent form. The procedure Turkish performed was incomplete and, Acuna claimed, it was not until she went to the hospital with an “incomplete abortion” diagnosis that she realized there had been a baby inside of her, not just blood. The realization that the procedure killed “a human being” led Acuna to suffer post-traumatic stress disorder. Acuna sued for medical malpractice, claiming her consent was uninformed because Turkish should have told her she was carrying “an existing living human being.” The trial court held that Turkish did not have such a duty, but an intermediate appellate court reversed. The New Jersey Supreme Court reversed. A physician has a common law duty to provide a woman with material information concerning the medical risks of an abortion, but there is no common law duty to inform a pregnant woman that an embryo is an existing, living human being. The court avoided deciding the case on constitutional grounds � based on the undue burden on a woman’s right of self-determination and the physician’s right to free speech � and concluded that it would not impose a legal duty on a physician if there is no consensus on the issue in the medical community. Professional rescuer rule bars patrol trooper’s suit A patrol trooper’s injuries were within the scope of risks inherent to his duties and derived from the alleged negligence that required his presence at the scene of an accident, the Utah Supreme Court ruled on Sept. 14. Fordham v. Oldroyd, No. 20060260. Richard Fordham, a Utah highway patrol trooper, was injured while responding to an automobile accident to which Ryan Oldroyd’s negligence may have contributed. Fordham sued Oldroyd, alleging his negligence was the proximate cause of his injuries. Oldroyd said the “professional rescuer rule” barred the suit. Under this doctrine, a firefighter or police officer may not recover damages from a private party for injuries he suffered while performing his duties. A trial court granted Oldroyd summary judgment based on the doctrine, which Utah had not previously adopted, and an appellate court affirmed. Affirming, the Utah Supreme Court held that it would be “na�ve” to believe that rescuers only meet “those hazards brought on by prudence gone awry,” rather than those caused by negligence. Here, Oldroyd owed no duty to Fordham, because Fordham’s injury derived from his presence at the scene of the accident that was caused by Oldroyd’s negligence, and he acted within the scope of his duties as a professional rescuer.

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