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ADMIRALTY Plaintiff entitled to jury trial in maritime action A litigant is entitled to a jury trial in an admiralty action because, although the Seventh Amendment does not apply to admiralty actions, the “savings to suitors” clause of 28 U.S.C. 1333 gives litigants the right to a jury trial, the 4th U.S. Circuit Court of Appeals held on Sept. 27. In re Lockheed Martin Corp., No. 06-1344. A ship owned by Lockheed Martin Corp. and insured by National Casualty Co. was damaged at sea. Lockheed filed a claim with National, seeking $2.6 million under its policy. National filed a declaratory judgment action in a Maryland federal court, seeking a ruling that Lockheed’s claims were time-barred under the policy and designating its action as a nonjury admiralty claim. Lockheed counterclaimed, seeking payment under the policy and a jury trial for its claims. The court refused to grant Lockheed a jury trial, and Lockheed filed a writ of mandamus in the 4th Circuit, arguing that it was entitled to a jury trial. National countered that granting Lockheed’s request for a jury trial based on a counterclaim would eviscerate National’s right as a plaintiff to choose an admiralty bench trial. The 4th Circuit reversed and granted Lockheed’s petition for a writ of mandamus. While the Seventh Amendment creates no constitutional right to a jury trial of maritime claims, the “saving to suitors” clause, 28 U.S.C. 1333, applies to admiralty cases. This says “district courts shall have original jurisdiction, exclusive of the courts of the States, of: (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.” The saving-to-suitors clause preserves a plaintiff’s right to a common law remedy “in all cases where the common law is competent to give it.” By virtue of the saving clause, a plaintiff may sue at law in a state or federal court. “Perhaps the most important aspect of an admiralty plaintiff’s right to proceed ‘at law’ in state or federal court is the right to demand a jury trial,” the court said.   Full text of the decision BANKRUPTCY No need to pay into plan for five years for debtor Despite the statutory requirement that the duration of an above-median debtor’s reorganization plan be 60 months, a debtor may obtain confirmation of a plan that extends over 48 months if the debtor has no disposable income, the 8th U.S. Circuit Court of Appeals held on Sept. 24. In re Frederickson, No. 07-6025EA. Debtor Craig Matthew Frederickson filed for Chapter 13 bankruptcy. His Form 22C showed that, even though he was an “above-median debtor,” meaning his annual income was above the applicable median family income of his home state of Arkansas, his monthly expenses exceeded his monthly income by $95.49. He proposed a reorganization plan under which he would pay $600 a month for 48 months, with 75% to unsecured creditors. The trustee objected to the duration of the plan, arguing that 11 U.S.C. 1325(b)(4) requires the term of the plan to be 60 months for an above-median debtor. An Arkansas federal bankruptcy court overruled the objection, finding that under the circumstances of this case, namely, the negative disposable income, the Bankruptcy Code does not require the debtor to pay into the plan for five years. The court said an above-median debtor who has no disposable income can propose a confirmable plan whose duration is less than five years. The 8th Circuit affirmed. Under 11 U.S.C. 1325(b), if a trustee objects to a plan, it may only be approved if all of the debtor’s projected disposable income is received in the applicable commitment period, defined as being five years for an above-median debtor. Under 11 U.S.C. 1325(b)(2), as amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, disposable income means “current monthly income received by the debtor,” less reasonably necessary expenditures for living expenses. The applicable commitment period is that period of time a debtor must pay disposable income to the trustee for payment to unsecured creditors. The court said that, for a debtor with negative disposable income, there is no applicable commitment period. CIVIL PRACTICE Out-of-state attorney’s complaint rightly erased A litigant whose complaint was signed by an attorney not licensed in the state did not file in a timely manner, the Mississippi Supreme Court held on Sept. 27. Mitchell v. Progressive Ins. Co., No. 2006-CA-01542-SCT. Carl Mitchell, a Mississippi resident, was involved in a car accident with Patrick Benfatti, a Louisiana resident, on Nov. 27, 2002. On Jan. 16, 2003, Mitchell’s attorney, Karl Wiedemann, informed Mitchell’s insurer, Progressive Insurance Co., that Benfatti was uninsured. Mitchell attempted to file a complaint against Progressive in Wayne County, Miss., on Dec. 5, 2005. The county circuit clerk denied the complaint because it was signed by Wiedemann, a member of the Louisiana bar, but not of the Mississippi bar. In February 2006, Mitchell filed another complaint in the same court against Progressive. This complaint was signed by a new attorney, Jeffrey L. Ellis, a member of the Mississippi bar. The trial court dismissed the complaint with prejudice. The Mississippi Supreme Court affirmed. Miss. R. Civ. P. 11(a) provides that “[e]very pleading or motion of a party represented by an attorney shall be signed by at least one attorney of record.” Miss. R. of App. P. 46(b) requires that pleadings from foreign attorneys who have not complied state legal requirements be stricken from the record. The court found that Mitchell’s complaint was not filed by the expiration of the three-year limitations period, on Jan. 16, 2006. His first complaint was properly stricken from the record for not complying with Rule 46(b). CRIMINAL PRACTICE No need to prove felon possessed particular gun When prosecuting a felon for possession of firearms, the government doesn’t need to prove that the defendant possessed a particular gun as an element of the crime, the 5th U.S. Circuit Court of Appeals held on Sept. 25 in a case of first impression. U.S. v. Talbert, No. 06-31233. The federal government indicted Frederick Talbert on one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. 922(g)(1), alleging that Talbert possessed two guns at the time of his arrest. At trial, a Louisiana judge instructed the jury that it was not necessary for the government to prove that Talbert possessed both guns. The judge also instructed jurors that they could convict Talbert even if they were not unanimous as to which gun the defendant possessed knowingly. The jury convicted Talbert. The 5th Circuit affirmed. On the gun possession charge, the court noted that simultaneous possession of multiple firearms constitutes only one crime under Section 922(g)(1). The court adopted the 1st Circuit’s reasoning in U.S. v. Verrecchia, 196 F.3d 294, 297-98, which said that Congress did not intend possession of a particular firearm to be an element of a Section 922(g)(1) violation, and that there is no error in the trial judge’s failure to give an instruction requiring jury unanimity on any particular firearm the defendant allegedly possessed. EMPLOYMENT No leave for mother of postpartum daughter A worker is not entitled to leave under the Family and Medical Leave Act to care for her adult daughter suffering postpartum depression, the 6th U.S. Circuit Court of Appeals ruled on Sept. 28. Novak v. Metrohealth Medical Center, No. 06-3036. When she exceeded the “point” limit for days off from work, Donna Novak was asked to explain her absences. Novak said she was entitled to leave under the Family and Medical Leave Act (FMLA) because of back pain and a need to look after her 18-year-old daughter, whose postpartum depression left her unable to care for Novak’s grandchild. Her employer rejected Novak’s explanations and fired her. Novak filed a lawsuit against her employer citing FMLA violations, which an Ohio federal court rejected. The 6th Circuit affirmed, though it also ordered Novak’s state-law claims remanded to an Ohio trial court. The court said that Novak’s daughter’s postpartum depression does not qualify for FMLA leave: Novak did not provide certification that her daughter could not care for herself or her baby; FMLA does not allow medical leave to take care of a grandchild; and FMLA’s coverage of leave for a “mental and physical disability” does not include postpartum depression. Such a condition did not “substantially limit” the daughter’s major life activities. EVIDENCE Campus police officers are not state actors Despite the presence of campus security officers who had special police commissions from the District of Columbia, a warrantless search of a university dormitory room did not violate the Fourth Amendment rights of the student resident, and there was no error in admitting evidence of marijuana seized in the room, the District of Columbia Court of Appeals held on Sept. 27. Limpuangthip v. U.S., No. 05-CM-951. After campus police received an anonymous tip about illegal drugs, Penny Davis, a George Washington University official, used a master key she obtained from the campus police to obtain access to the dormitory room of student Jason Limpuangthip. Davis was accompanied by campus police, who were commissioned as special police officers by the government of the District of Columbia. As the university official searched the room, the campus police waited. Davis seized marijuana she found there, and the campus police transported it from the room. After he was convicted of possession and distribution of marijuana, Limpuangthip appealed, arguing that the campus police were state actors, making their participation in the warrantless search a violation of the Fourth Amendment. Affirming, the Court of Appeals, the district’s highest court, said that, when private security guards have the powers of the police, Fourth Amendment restrictions on their actions can apply. However, not all private security police with special police commissions are state actors. Holding that the special police at the university were not state actors, the court said, “The trial court found based on record evidence that the University initiated the search and that the purpose of the search was to enforce the University’s private policies . . . [t]he participation of the [campus police] was peripheral and secondary to that of the University administrator who carried out the search. Thus, we conclude that the Fourth Amendment was not implicated.” FAMILY LAW Children can’t intervene legally in parents’ divorce Children do not have a statutory or constitutional right to intervene in their parents’ divorce if they are already represented by a guardian ad litem, the New Hampshire Supreme Court ruled on Sept. 28. In the Matter of Stapleford, No. 2006-730. After a trial court awarded temporary custody of a couple’s two children to the mother, a guardian ad litem submitted a report recommending the same custody arrangement, though the children’s preference was to live with their father. When the father asked to modify the temporary order to grant him custody, the children attempted to intervene. The trial court rejected their argument that they had a due process and statutory right to be heard when the guardian ad litem’s recommendation is contrary to their preference. The trial court agreed with the mother that the children’s interests were already represented by the guardian ad litem. The New Hampshire Supreme Court affirmed, finding no due process violation under the 14th Amendment. Even assuming that the children have a legally protected liberty interest in the outcome of their parents’ divorce, there is little risk of an erroneous outcome for the children absent their intervention because courts don’t have to accept, and parents can oppose, the recommendations of guardians ad litem. Furthermore, “chaos . . . would ensue” if children were allowed to intervene: They could participate in discovery, conduct depositions and cross-examine witnesses, plus there could be disagreement among siblings that would complicate the proceedings “exponentially.” GOVERNMENT City council ordinance is subject to referendum City council ordinances are all subject to the referendum process, assuming all other criteria are met, regardless of whether they are legislative or administrative in nature, the New Jersey Supreme Court ruled on Sept. 26. In re Referendum Petition to Repeal Ordinance 04-75, No. A-94-2006. In September 2004, the Trenton City Council passed an ordinance that reorganized the city’s police department. Nearly three weeks later, the city’s clerk confirmed that it had accepted a referendum petition to repeal the ordinance and that it would be placed on the next election ballot. The City Council filed a complaint to declare the referendum petition void. A state trial court ruled that the administrative parts of the ordinance could not be challenged by referendum, but that the legislative parts had to be submitted for voter approval. An intermediate appellate court reversed, finding that the whole ordinance needed to be submitted to the referendum process. Finding a split among the state’s appeals panels on characterizing actions as legislative or administrative, the court ruled that in close cases there should be a policy preference for public participation through referenda. The New Jersey Supreme Court affirmed. There is no statutory support for the judicially created exception to the state’s referendum statute for administrative ordinances. The plain language of the statute says “any ordinance” can be challenged through the referendum process, and the body of law exempting administrative ordinances from that statute is not supported by legislative history. The Legislature itself has made exceptions to the statute, such as for zoning ordinances, but has not made such a distinction for administrative ordinances: “It is the function of the Legislature, not the courts, to determine how much direct democracy through referendum should be conferred on the voters of a municipality.” IMMIGRATION LAW Court can review issue BIA tackled sua sponte An issue that an immigration petitioner failed to raise before the Board of Immigration Appeals is preserved for circuit court review if the BIA sua sponte addressed it, the 10th U.S. Circuit Court of Appeals held on Sept. 21. Sidabutar v. Gonzales, No. 06-9576. Tingkos Sidabutar and his wife are natives and citizens of Indonesia living in the United States. Sidabutar applied for asylum, restriction on removal and protection under the U.N. Convention Against Torture. As a Christian in predominantly Muslim Indonesia, he claimed past beatings and robberies at the hands of Muslims and expressed fear of returning, based on his religion. An immigration judge (IJ) denied the couple’s application for asylum. They appealed to the BIA, challenging only the IJ’s determinations regarding the denial of asylum. They argued the judge erred in concluding they were ineligible for asylum based on their failure to comply with the application’s one-year filing deadline under 8 U.S.C. 1158(a)(2)(B). The BIA affirmed, and also concluded that the IJ properly denied Sidabutar’s restriction on removal and U.N. Convention applications. The couple appealed to the 10th Circuit, claiming that the BIA had engaged in improper fact-finding in determining that Sidabutar had not suffered persecution in the past, and that he was ineligible for protection under the U.N. Convention. The 10th Circuit asserted jurisdiction, but denied the petition for review. In their appeal, the petitioners had failed to challenge the IJ’s decision to deny them restriction on removal or protection under the U.N. Convention. Ordinarily, this would be considered failure to exhaust administrative remedies. However, in this case, the BIA sua sponte addressed and ruled on both the restriction on removal and the U.N. Convention claim. The BIA affirmed the IJ’s finding that Sidabutar had failed to show past persecution. “In sum, because the BIA sufficiently considered Sidabutar’s two unraised claims in its final order and that final order was properly appealed in this petition for review, we assert jurisdiction over the matters directly ruled on by the BIA.” The 10th Circuit affirmed the BIA’s finding that it is unlikely that Sidabutar would “face future persecution at the hands of the government or a non-governmental group that ‘the government is unwilling or unable to control.’ ” The court also said that it’s “ against the odds that he would be tortured by the government or a proxy for the government.” Consequently, he was ineligible for protection under the U.N. Convention. JUVENILE LAW Right to counsel waiver must be free, intelligent A juvenile facing charges may waive the right to counsel, but only if the waiver is voluntary, knowing and intelligent, the Ohio Supreme Court held Sept. 27. In re C.S., No. 2006-1074. Nearly 14 years old, C.S. was brought to juvenile court to face multiple charges. C.S. allegedly told police he and a friend had stolen and destroyed two cars, stolen electronic equipment and a gun, bought and used alcohol and cocaine-laced marijuana, engaged in sexual relations with an adult woman, and shot a cow and a horse. A magistrate told C.S. and his mother that C.S. had the right to be represented by a lawyer. C.S. and his mother said they understood that right and waived it. Without counsel, C.S. admitted to the charges and was sentenced to 12 months in youth prison. C.S. appealed, arguing that the trial judge violated his right to counsel. An intermediate appellate court rejected the claim. The Ohio Supreme Court reversed and remanded. Ohio Rev. Code Ann. � 2151.352 holds that counsel must be provided for a child not represented by the child’s parent, guardian or custodian. The court rejected C.S.’ constitutional challenge to the statute, holding that a juvenile may waive his right to counsel “if he is counseled and advised by his parent, custodian, or guardian.” If a judge determines that counsel may be waived, the judge must determine if the waiver is voluntary, knowing and intelligent by engaging in a dialogue examining the juvenile’s intelligence, education, experience in the court system and emotional stability. The court said C.S.’ waiver was not valid. There was “ample evidence” that he waived counsel and admitted the charges so he could be with his brother in youth prison. That rationale was not intelligent because the brothers would not be housed together.

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