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CONSTITUTIONAL LAW Multiple-language test is no breach of constitution Offering the written driver’s license test in multiple languages does not violate the Alabama Constitution’s provision establishing English as the official language, the Alabama Supreme Court held, 5-4, on Oct. 19. Cole v. Riley, No. 1050662. R.W. Cole, a member of a nonprofit organization called ProEnglish based in Arlington, Va., sued Alabama Governor Bob Riley, arguing that the state’s practice of offering the written portion of the driver’s license test in languages other than English violates the Alabama Constitution. In 1990, Alabama voters passed Amendment 509, establishing English as the state’s official language. Cole admitted no evidence to the trial judge. The state sought summary judgment, arguing, among other things, that Amendment 509 does not require driver’s license examinations to be administered only in English. The judge granted summary judgment, saying that the plaintiff had failed to present evidence either that English-only testing for driver’s licenses is necessary to preserve and enhance English as the common language or that multiple-language testing is eroding English as the state’s common language. The Alabama Supreme Court affirmed, holding that the plaintiffs had failed to counter the state’s argument that permitting individuals with a limited knowledge of English to take the driver’s license test in their native languages helped them get a valid license and therefore assimilate better by increasing their access to education, employment and shopping.   Full text of the decision CONSUMER PROTECTION TILA requires explicit payment due dates A disclosure statement from which a consumer might infer the due dates or payment period, but which does not explicitly state them, fails the requirements of the federal Truth in Lending Act (TILA), the 7th U.S. Circuit Court of Appeals held on Oct. 17. Hamm v. Ameriquest Mortgage Co., No. 05-3984. Sarah Hamm and Shirley Jones entered into loan transactions secured by mortgages with Ameriquest Mortgage Co. They each signed a “Disclosure Statement,” which said that the “number of payments” is 359 in the amount of $541.92, “due beginning 03/01/2002″ as well as one in the amount of $536.01, “due beginning 02/01/2032.” There was no indication that the payments are to be made monthly over 360 months. Hamm and Jones sued Ameriquest and related companies under TILA. They claimed that the original lender violated TILA by failing to state explicitly the payment period in the disclosure statements. They claimed damages and the right to rescind their mortgages. On the payment-period issue, different Illinois federal district court judges heard the cases, resolving Hamm’s claim in favor of the defendant but Jones’ claim in favor of Jones. The 7th Circuit affirmed Jones’ case and reversed on Hamm’s, holding that the disclosure statements failed to state explicitly the payment period of the loans, as required by TILA. The court said that “it does not take much calculation to realize that the time between the first entry . . . and the last entry is just shy of thirty years, or 360 months.” But TILA explicitly requires that a lender include the “due dates or period of payments scheduled to repay the total of payments,” which was not done here. TILA is not satisfied if the form “provides only enough information from which the consumer might infer either the due dates or the payment period.” CRIMINAL PRACTICE Not guilty by reason of insanity is an acquittal A determination of not guilty by reason of insanity is equivalent to an acquittal and may not be subject to appellate review, the Illinois Supreme Court held Oct. 18. Illinois v. Harrison, No. 102859. Dwight Harrison pleaded not guilty to two counts of first-degree murder for the 1998 beating death of Theotrie Archie. He raised the insanity defense and waived a jury trial. Harrison was found not guilty by reason of insanity. Two psychiatrists had determined that Harrison was schizophrenic and unable to appreciate the criminality of his conduct. He was committed to an in-patient mental health facility until 2028 or until he no longer needs in-patient mental health services. Harrison appealed, contending that his trial counsel was ineffective for failing to move to suppress his confession and that the evidence was insufficient to establish his guilt beyond a reasonable doubt. An intermediate appellate court dismissed the appeal as moot, finding that the trial court judgment was an acquittal and that no appellate court could grant any relief greater than acquittal. The Illinois Supreme Court affirmed, noting that a defendant found not guilty by reason of insanity is completely absolved of the crime. “If a person lacks substantial capacity to appreciate the criminality of the conduct, then all criminal responsibility is negated,” the court said. Harrison had argued that the issue of guilt is not moot and is subject to appellate review, citing appellate decisions from Texas, Connecticut and Louisiana. But the Supreme Court said that those states, unlike Illinois, do not have express constitutional prohibitions against appeals of judgments of acquittal. The Illinois Constitution states that “after a trial on the merits of a criminal case, there shall be no appeal from a judgment of acquittal.” EVIDENCE Though hearsay, police lab report is admissible A police laboratory report can be admitted under the business-record exception to the hearsay rule, the Pennsylvania Supreme Court ruled on Oct. 17. Commonwealth v. Carter, No. J-59-2006. During Alfonso Carter’s trial for drug possession with intent to deliver, the court let a police lab manager introduce a lab report saying 11.6 grams of cocaine had been seized from Carter. The manager was allowed to testify about the report’s contents under the business-records exception to the hearsay rule, and because the forensic scientist who conducted the test and prepared the report was unavailable. Carter was convicted, and an intermediate appellate court affirmed. Carter then filed for post-conviction relief, claiming the report should not have been let into evidence. The trial court rejected his claim, but an en banc appellate court reversed, finding the business record exception inapplicable because the report was prepared in anticipation of litigation. The Pennsylvania Supreme Court reversed. “Police lab reports are not documents prepared for the purpose of avoiding hearsay objections, and are not prepared ‘in anticipation of litigation’ in the traditional sense; the information they contain is crucial in determining whether to prosecute at all.” No cause of action over spoliation of evidence There is no cause of action in the state for third-party negligent spoliation of evidence, the New York Court of Appeals ruled on Oct. 16. Ortega v. City of New York, No. 118. Castalia Ortega’s used minivan burst into flames just days after she bought it from a private owner. The attorney for Ortega’s passenger was denied access to the vehicle at the towing lot because he was not a title owner; he was also told the vehicle would be destroyed within a set time if the owner did not claim it. The passenger, Manuel Peralta, obtained a court order directing the police and the city’s impound lot to delay the van’s destruction. The order was either misplaced or ignored. Thus, following its usual procedure, the pound lot sent letters to Ortega and the van’s former owner letting them know the van was set for destruction. The former owner sent a signed return receipt, agreeing to the demolition. However, Ortega never received her letter because the address listed on the police report was insufficient. After the van was disposed of, Ortega and Peralta sued the city for negligent spoliation of evidence because, without being able to inspect the van, the plaintiffs could not sue the manufacturer, the former owner or the inspection company. The trial court dismissed the claim and an intermediate appellate court affirmed. The New York Court of Appeals, the state’s highest court, affirmed, thereby joining the courts of other states across the nation that have refused to recognize a negligent spoliation of evidence claim on the ground that the injury is speculative: “[T]here is no way of ascertaining to what extent the proof would have benefitted [sic] either the plaintiff or defendant in the underlying lawsuit.” Furthermore, though the city’s action interfered with the plaintiffs’ interests, other remedies exist under state law to compensate them, such as contempt proceedings. INTELLECTUAL PROPERTY Suit arising from bungled patent suit will be federal If a patent infringement issue is a necessary element of a legal malpractice claim, removal of the malpractice claim to federal court is warranted, the U.S. Court of Appeals for the Federal Circuit ruled on Oct. 15 on an issue of first impression. Air Measurement Technologies Inc. v. Akin Gump Strauss Hauer & Feld LLP, No. 2007-1035. In 2000, Air Measurement Technologies, represented by Gary Hamilton, then of Akin Gump Strauss Hauer & Feld, filed a patent infringement lawsuit against a competitor. Air Measurement dismissed Hamilton. Its new counsel found various errors in Hamilton’s prosecution and litigation of the patent. In 2003, Air Measurement sued Hamilton and his law firm for legal malpractice in Texas state court. Akin Gump removed the case to a Texas federal court, which rejected Air Measurement’s attempt to remand. Under 28 U.S.C. 1338, the court certified an interlocutory appeal question: “[w]hether a Texas state-law legal malpractice claim arising out of underlying patent prosecution and patent litigation necessarily raises a question of federal patent law.” The Federal Circuit affirmed, holding that “where, as here, establishing patent infringement is a necessary element of a malpractice claim stemming from alleged mishandling of patent prosecution and earlier patent litigation, the issue is substantial and contested, and federal resolution of the issue was intended by Congress, there is ‘arising under’ jurisdiction under � 1338.” Despite infringement, no damages for logo creator Although licensees of the logo of the National Football League’s Baltimore Ravens infringed on the copyright of the logo’s designer, he was not entitled to actual damages due to the doctrine of claim preclusion and because he had failed to register his copyright before the infringement began, the 4th U.S. Circuit Court of Appeals held on Oct. 17. Bouchat v. Bon-Ton Dep’t Stores Inc., nos. 03-2173, 03-2174, 03-2389 and 04-1008. In 1995, Frederick Bouchat, a security guard and amateur artist, designed a logo for the Baltimore Ravens and sent it to the team, asking only for a letter of acknowledgement and an autographed helmet in return. When the Ravens began using a logo very similar to Bouchat’s without an acknowledgement, Bouchat sued the Ravens and NFL Properties Inc. (NFLP). Though he obtained a judgment for copyright infringement, no damages were awarded. Bouchat filed four separate suits against hundreds of licensees that sold merchandise featuring the infringing logo. A Maryland federal court granted summary judgment to Bouchat, holding that the licensees had infringed on Bouchat’s copyright. Again, no damages were awarded. Affirming, the 4th Circuit held that, under the doctrine of claim preclusion, Bouchat was not entitled to actual damages because the earlier judgment that had awarded no damages blocks him from seeking damages in an identical suit. In addition, the court held that Bouchat was not entitled to statutory damages because, although the licensees’ conduct occurred after Bouchat’s copyright registration, he had failed to register his copyright before the original infringement by NFLP began. The court said, “The statute thus subjects a licensor-licensee pair to the same tracing rule that would apply to either one as an individually liable infringer. Here, then, we must trace the licensee’s post-registration infringing conduct back to NFLP’s pre-registration conduct and thereby deny statutory damages to Bouchat.” REAL PROPERTY Eminent domain doesn’t apply to business losses While an owner of land taken by eminent domain is entitled to compensation, the proprietor of a business located on the land is not entitled to compensation for his business losses, loss of business goodwill or consequential damages, the District of Columbia Court of Appeals held on Oct. 18 in a case of first impression. Mamo v. District of Columbia, nos. 06-CV-845 and 06-CV-1007. Eyob Mamo and his company, DAG Petroleum III Inc., operated a gas station and convenience store in the District of Columbia under a lease agreement with BP Products North America Inc. The district filed a condemnation suit against BP and others for the purpose of taking the land on which Mamo’s business was located. Mamo filed an answer and counterclaim, arguing that, although he did not own the land, he was entitled to compensation for the loss of his business. After a lengthy procedural history, the trial court awarded all compensation for the condemnation to BP and dismissed Mamo’s lawsuit. Affirming, the District of Columbia Court of Appeals held that, while BP was entitled to compensation for the taking of the land, neither the Fifth Amendment to the U.S. Constitution nor district law entitled Mamo to compensation for the loss of his business or consequential damages. Citing U.S. Supreme Court precedent, the court said, “[A]bsent a statutory mandate the sovereign must pay for only what it takes, not for opportunities which the owner may lose.”

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