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• CIVIL PRACTICE Pretrial scheduling order tolls case-inactivity rule A trial court erred in dismissing a civil suit due to lack of activity for five years because the trial court’s two pre-trial scheduling orders � although not initiated by the parties � still tolled the state’s five-year rule on case inactivity, the Georgia Supreme Court held on Jan. 8. Zepp v. Brannen, No. S07A1320. Amy Zepp filed a medical malpractice action in a Georgia state court, but the case was dormant with the exception of two sua sponte pretrial scheduling orders. Perry Brannen Jr., the trial judge in the case, notified the parties that the case had been dismissed under Georgia’s “five-year rule.” The rule, passed to clear court dockets of dormant cases and codified as Ga. Code Ann. �� 9-2-60(b) and 9-11-41(e), provided for the dismissal of civil actions if no written order had been issued for five years. Zepp filed a writ of mandamus to reinstate the suit, arguing that the court’s scheduling orders tolled the five-year period. The court dismissed the petition, holding that the scheduling orders did not toll the five-year period because they were merely administrative “housekeeping” orders that had not been initiated by either party. Reversing, the Georgia Supreme Court held that there was no statutory basis for not allowing administrative “housekeeping” orders to toll the five-year rule. The court said, “an order tolls the running of the five-year rule if it is in writing, signed by the trial judge, and properly entered in the records of the trial court.” Full text of the decision • CONSTITUTIONAL LAW Religious freedom law doesn’t apply to aliens A federal trial judge was right to dismiss most of the claims filed by four former Guant�namo Bay, Cuba, detainees, but erred in ruling that the detainees could proceed on a religious freedom claim, the U.S. Circuit Court of Appeals for the District of Columbia held on Jan. 11. Rasul v. Rumsfeld, No. 06-5209. Four United Kingdom citizens � Shafiq Rasul, Asif Iqbal, Rhuhel Ahmed and Jamal Al-Harith � were captured in Afghanistan in November 2001 and transported in early 2002 to the U.S. Naval base at Guant�namo Bay, Cuba. They were held there for two years before being repatriated to Britain in March 2004. They claimed they were in Afghanistan for religious reasons or to provide humanitarian relief. In a suit filed in 2007, the detainees alleged they were systematically and repeatedly tortured throughout their detention. They also alleged that they were harassed while practicing their religion. They sued the secretary of defense and military leaders in a Washington federal court seeking damages. The plaintiffs’ complaint alleged seven causes of action under the Alien Tort Statute (ATS), the Geneva Conventions, the Fifth and Eighth amendments to the U.S. Constitution and the Religious Freedom Restoration Act (RFRA). The defendants argued that the ATS and Geneva Conventions claims were barred by the Federal Employees Liability Reform and Tort Compensation Act of 1988, and that they were entitled to qualified immunity on the constitutional and RFRA claims. The trial judge ruled that the Federal Tort Claims Act provided the only remedy for the allegedly tortious conduct and granted the defendants’ motion to dismiss the ATS and Geneva Conventions claims. The judge also dismissed the constitutional claims, holding that the defendants were entitled to qualified immunity from suit. However, the judge denied the defendants’ motion to dismiss the religious freedom claim, concluding that the RFRA applied to U.S. government action at Guant�namo. The D.C. Circuit upheld all of the trial judge’s dismissals but reversed on the applicability of the religious freedom law. The defendants had argued that the RFRA does not apply to nonresident aliens. But the trial judge said that the “RFRA expressly protects the religious exercise of ‘persons,’ a broadly applicable term, commonly including aliens.” The circuit court disagreed, holding “We believe that RFRA’s use of ‘person’ should be interpreted consistently with the Supreme Court’s interpretation of ‘person’ in the Fifth Amendment and ‘people’ in the Fourth Amendment to exclude non-resident aliens. Because the plaintiffs are aliens and were located outside sovereign United States territory at the time their alleged RFRA claim arose, they do not fall with the definition of ‘person.’ ” Modification of warning doesn’t breach ‘Miranda’ A hearing judge erred in suppressing a murder defendant’s statements to police because a police detective’s modification of the standard Miranda warning to indicate that an attorney would be provided “at some time” did not violate the defendant’s constitutional rights, the Maryland Court of Appeals held on Jan. 11. Rush v. Maryland, No. 31. Police arrested Cindi Rush in a murder and robbery investigation. The detective who interrogated her gave her the standard warning pursuant to the U.S. Supreme Court’s Miranda v. Arizona, 384 U.S. 436 (1966). However, although the police detective informed Rush she was entitled to counsel, he modified the Miranda warning to read, “If you want a lawyer and can’t afford one, one will be provided to you at some time at no cost.” After Rush made incriminating statements during the interrogation, she moved to suppress her statements, arguing that the modification of the warning violated her Miranda rights because informing her that a lawyer would be provided “at some time” created confusion as to whether she could have a lawyer during the interrogation. A hearing judge suppressed Rush’s statements, holding that the modification violated Miranda. An intermediate appellate court reversed. Affirming, the Maryland Court of Appeals, the state’s highest court, held that there was no constitutional violation. Referring to the U.S. Supreme Court’s decision in Duckworth v. Eagan, 492 U.S. 195 (1989), in which the justices held that police officers did not have to use the specific language of the Miranda decision so long as they reasonably conveyed to suspects their constitutional rights, the court said, “The modification of the advisements did not tie [Rush's] right to counsel to a future event or to her ability to obtain a lawyer herself; rather, as in Duckworth, the modified language only clarified, in a separate advisement, how and when appointed counsel would be provided. Read objectively, the modified language does not suggest, as Rush argues, that appointed counsel could not be present during questioning.” • CRIMINAL PRACTICE U.S. must prove mens rea of antiwar protester A magistrate judge erred in convicting antiwar activist Cindy Sheehan for protesting without a permit because the prosecution had proceeded on the erroneous premise that National Park Service regulations imposed strict liability and that mens rea wasn’t an element of the offense, the U.S. Circuit Court of Appeals for the District of Columbia held on Jan. 11. Sheehan v. U.S., No. 07-3002. Sheehan and several other protesters were arrested in September 2005 for demonstrating without a permit on the White House sidewalk. She was charged with violating 36 C.F.R. 7.96(g)(2), a National Park Service regulation that provides that demonstrations involving more than 25 people require a permit. At a bench trial, a U.S. magistrate judge held that the government was not required to prove mens rea under the regulation at issue and prevented Sheehan and the co-defendants from offering evidence of their intent and knowledge of the permit requirement. Sheehan and the co-defendants were convicted and assessed a $50 fine and a $25 administrative fee. A D.C. federal court affirmed, rejecting Sheehan’s argument that the regulations were unconstitutional and that the evidence was insufficient to support a conviction The D.C. Circuit affirmed on the rejection of the constitutional and evidentiary challenges, but held that the prosecution was still obligated to meet its burden of proving her mens rea, i.e., what Sheehan and her co-defendants knew, heard and intended on the day in question. The court said the magistrate judge committed two legal errors. First, the judge allowed the government to prosecute the case on the erroneous premise that the disputed regulations imposed strict liability, which eliminated the prosecutor’s burden of proving mens rea. “The prosecution’s ‘burden of proving all elements of the offense charged’ and obligation to ‘persuade the fact finder beyond a reasonable doubt of the facts necessary to establish each of those elements’ arise from the Due Process Clause of the Fifth Amendment.” Second, in preventing Sheehan from presenting a defense on the mens rea issue, the judge denied her the right to procedural fairness the Constitution requires. Jury, not judge, needs to see mitigating evidence A trial judge erred in failing to rule in favor of the defendant’s claim of ineffective assistance during the trial’s penalty phase, the Florida Supreme Court ruled on Jan. 10. Williams v. Florida, No. SC05-226. Ronald Lee Williams, who ran a statewide drug organization from Miami, was convicted for the first-degree murder of four people. During the trial’s penalty phase, Williams’ lawyer failed to present mitigating evidence concerning his abusive childhood, substance abuse and mental impairment. The jury recommended a life sentence. The judge overrode this recommendation and imposed the death penalty. In post-conviction proceedings, the judge denied Williams’ claim of ineffective assistance of counsel, holding that, because the defense lawyer had secured a life imprisonment recommendation from the jury, the only relevant question was whether the mitigating evidence would have made a difference to him as the sentencing judge. He found that the mitigating evidence would not have altered his decision to override the jury’s life recommendation. Hence, Williams was not prejudiced by his attorney’s failure to present mitigating evidence. The Florida Supreme Court reversed and reduced Williams’ sentence to life. The court held that the trial judge applied a “legally flawed” standard to his prejudice analysis. “It is of no significance that the trial judge stated that he would have imposed the death penalty in any event,” the court said. “The proper standard is whether a jury recommending life imprisonment would have a reasonable basis for that recommendation. If so, the trial judge could not override the jury’s recommendation.” The court said that, under Florida law, defense counsel in a capital proceeding has a fundamental obligation both to investigate and present evidence of mitigation in the penalty phase of the proceedings. • HEALTH LAW Wife of relative unable to care can be surrogate The wife of A relative qualifies as a health care surrogate for a mentally incompetent woman if the relative becomes unable to care for her, the Mississippi Supreme Court found on Jan. 10. Magnolia Healthcare Inc. v. Barnes, No. 2006-CA-00427-SCT. Barbara Jean Barnes, a mentally incompetent woman, was taken care of by her grandmother. Barnes had the mental capacity of a 3-year-old and could not live alone. When her grandmother was no longer able care for her, Atwood Grigsby, Barnes’ cousin, took over. In 2003, after Grigsby had become seriously ill and unable to care for Barnes, his wife Shirley secured Barnes’ admission to Arnold Avenue Nursing Home. She signed an admission agreement containing an arbitration provision. In 2005, Shirley Grigsby brought a lawsuit on Barnes’ behalf alleging negligent treatment, abuse and sexual assault of Barnes while she was a resident at the nursing home. The trial court denied the defendant’s motion to compel arbitration finding that Grigsby did not possess the statutory or agency authority to bind Barnes to the arbitration provision in the admission agreement. The state Supreme Court reversed and remanded. Miss. Code Ann. � 41-41-211 provides that “an adult who has exhibited special care and concern for the patient, who is familiar with the patient’s personal values, and who is reasonably available may act as surrogate” when there is no other relative available. The court concluded that Grigsby had the authority to bind Barnes to the arbitration provision in the agreement. Barnes had no relatives available to make decisions for her, and Grigsby, who took over the role of caretaker from her husband, was familiar with Barnes’ personal values. • INSURANCE LAW Insurer must cover if it’s immaterial policy breach An insurance company cannot deny coverage based on an insured’s failure to notify the company of a claim in a timely fashion when that failure didn’t prejudice the company, the Texas Supreme Court ruled on Jan. 11. PAJ Inc. v. The Hanover Insurance Co., No. 05-0849. PAJ Inc., a jewelry manufacturer and distributor, was required under its commercial general liability policy to notify its insurer, Hanover Insurance Co., of a claim “as soon as practicable.” Unaware that the policy would cover damages arising from a copyright infringement, it took PAJ at least four months to notify Hanover that it had been named as a defendant in a copyright suit. Hanover refused to defend, saying PAJ had not complied with the notice-of-suit language, though it admitted it had not been prejudiced by the delay. A state trial court agreed with Hanover, and an intermediate appellate court affirmed. The Texas Supreme Court reversed, holding that an immaterial breach does not deprive the insurer of the benefit of a bargain and thus cannot relieve the insurer of the contractual obligation of coverage. Only material breaches of the policy excuse an insurer’s performance under the policy, and the delayed notification was not material. It does not matter whether the particular policy language could be characterized as a covenant or a condition, an exclusion or a provision.

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