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• ADR Testimony in arbitration hearing enjoys immunity If an arbitration proceeding is functionally similar to a judicial proceeding, absolute immunity applies to testimony given during the proceeding, the 2d U.S. Circuit Court of Appeals ruled on Feb. 25. Rolon v. Henneman, No. 06-3890. Robert Henneman, acting chief of the Wallkill, N.Y., Police Department, suspended police officer Dennis Rolon without pay, citing a complaint involving nine charges of misconduct, based on incidents reported by a fellow officer, Ari Moskowitz. Rolon filed suit in a New York federal court, alleging violation of his due process rights. Rolon and Henneman reached a settlement but agreed to arbitrate Rolon’s claims for back pay. The arbitrator found that neither Henneman nor Moskowitz provided truthful or credible testimony and found Rolon innocent of all but three charges. Rolon sued Henneman and Moskowitz under 42 U.S.C. 1983, alleging they had caused him “anguish and injury.” Henneman and Moskowitz moved for judgment on the pleadings, claiming they were protected by qualified or absolute immunity. The court granted Henneman judgment on the pleadings, ruling that “absolute immunity attaches to Henneman’s testimony at the arbitration proceedings.” As for the malicious prosecution claim against Moskowitz, the court said it was invalid because such a claim is limited to the “criminal arena.” The 2d Circuit affirmed. Because the arbitration proceeding in this case was “materially indistinguishable” from a formal judicial proceeding, and because Henneman performed the same function as a witness in a judicial setting, Henneman is entitled to absolute immunity over his testimony during the arbitration.   Full text of the decision • CIVIL PRACTICE Indiana extends RICO liability to foot soldiers Civil liability under Indiana’s Racketeer Influenced and Corrupt Organizations Act (RICO) applies to ringleaders of a corrupt enterprise as well as foot soldiers, the Indiana Supreme Court held on Feb. 27. Keesling v. Beegle, No. 18S04-0704-CV-150. Indiana residents who purchased pay telephones sued payphone promoters, alleging fraud, conversion and theft; securities violation; and violations of Ind. Code � 35-45-6-2, the so-called Indiana RICO law. A trial judge granted summary judgment to the defendants, saying that the plaintiffs had not presented evidence that the defendants directed the enterprise. An intermediate appellate court reversed on the securities and racketeering allegations, but affirmed on the remaining counts. The court said that the state RICO law is more broadly written than the federal law. The Indiana Supreme Court affirmed. The federal RICO law imposes liability on those who conduct a racketeering enterprise. The Indiana law goes further, imposing liability on anyone who participates in a racketeering enterprise. “We conclude that the Legislature intended for the Indiana Act to reach persons ‘below the managerial or supervisory level’ as well as those who ‘exert control or direction over the affairs of [a racketeering] enterprise,’ ” the court said. • CRIMINAL PRACTICE Defendant’s mitigating evidence waiver invalid Defense lawyers’ failure to investigate and prepare for sentencing in a death penalty case warrants reversal of the death sentence, the Florida Supreme Court held on Feb. 28. Florida v. Larzelere, nos. SC05-611 and SC06-148. Virginia Gail Larzelere was convicted and sentenced to death for the first degree murder of her husband, a dentist. She arranged to have him shot by her son, who posed as a masked gunman. Prosecutors alleged that the two conspired to kill him to obtain $2 million in life insurance and $1 million in assets. A jury convicted Larzelere and voted for the death sentence. Following a post-conviction hearing, the trial judge upheld the conviction but vacated the sentence. The prosecutors appealed, claiming Larzelere had waived presentation of mitigating evidence. Affirming, the Florida Supreme Court said that defense counsel is obliged to investigate mitigating factors before agreeing with a defendant’s decision to waive presentation of such evidence. There was evidence that Larzelere was emotionally and sexually abused as a child and physically abused by a prior husband. The trial court correctly concluded that counsel was deficient also in failing to obtain an informed mental health evaluation of Larzelere before the penalty phase. “Given this evidence, we find that the trial court did not err in concluding that Larzelere’s waiver was not made knowingly and intelligently,” the court said. • EMPLOYMENT Firing of nurse with sick husband is ADA breach A jury should consider a fired employee’s claim that her employer had violated the Americans With Disabilities Act by firing her allegedly because the medical expenses of her cancer-stricken husband were too burdensome, the 7th U.S. Circuit Court of Appeals held on Feb. 27. Dewitt v. Proctor Hospital, No. 07-1957. Phyllis Dewitt worked as a nurse at Proctor Hospital. Her husband, Anthony, who had prostate cancer, received medical coverage from Proctor. Proctor was partially self-insured and paid members’ medical costs up to $250,000 per year. After questioning Dewitt about her husband’s continuing medical expenses, Proctor fired Dewitt and made her ineligible for rehire, without explanation. Dewitt sued Proctor, alleging that it had improperly terminated her on the basis of “association discrimination,” among other reasons. An Illinois federal court granted summary judgment to Proctor. The 7th Circuit reversed. Under the Americans With Disabilities Act (ADA), 42 U.S.C. 12112(b)(4), an employer may not discriminate against an employee due to the known disability of an individual with whom the employee associates. The circuit court had previously held that an employee, fired because her spouse has a disability that is costly to the employer due to the health plan, “is within the intended scope of the ‘associational discrimination’ section of the ADA.” Here, Dewitt has “fairly persuasive circumstantial evidence” suggesting that her case is best viewed as one relying on “direct evidence” of discrimination, so a jury should consider her claim. The evidence suggests that Proctor, which faced financial trouble, was very concerned about cutting costs. Race may be motive for black teacher’s firing A school administrator’s racial remark was direct evidence that race was a motivating factor in a teacher’s termination, the 8th U.S. Circuit Court of Appeals held on Feb. 29. King v. Hardesty, No. 06-4163. In 2001, Mary Virginia King, a black woman, began working as a substitute teacher at Bearfield School in the Columbia, Mo., public school district. Russell Hardesty, a district school administrator, made racial remarks to King, including a comment that “white people teach black kids . . . better than someone from their own race.” King reported this to human resources. Within a few months, the district terminated King and replaced her with a white teacher. King brought race discrimination claims against the district and Hardesty under 42 U.S.C. 1981 and 1983. A Missouri federal court granted the defendants’ motion for summary judgment. Reversing and remanding, the 8th Circuit concluded that a trier of fact could find that Hardesty’s comment that “white people teach black kids . . . better” is direct evidence of discrimination. The comment revealed that a discriminatory attitude was more likely than not a motivating factor behind Hardesty’s employment decision because he may believe that white teachers would do a better job than King. • EVIDENCE Police search of bag no one owns is contestable A home’s occupant has standing to challenge the warrantless search of a duffel bag found in the home and which he said he did not own, the New Jersey Supreme Court ruled on Feb. 26. State of New Jersey v. Johnson, No. A-81-06. Johnny Holloway Jr. went to his girlfriend’s apartment and threatened her with a gun. She filed a domestic violence complaint and a warrant was issued for Holloway’s arrest. Police went to his father’s home, where Holloway was living, and arrested him. Andre Johnson, who had a criminal record, was also there. He said he was visiting, and as he prepared to leave, officers saw him place a small cardboard box into a duffel bag. Asked if the bag was his, Johnson said it was not. Holloway Sr. also denied knowing to whom it belonged. An officer grabbed the bag, opened the cardboard box and found inside a loaded .45-caliber gun. Johnson was convicted of various charges related to unlawful possession of a gun by a felon. An intermediate appellate court ruled that Johnson’s trial attorney was ineffective because he had failed to file a motion to suppress the gun. At a new trial, the court denied the motion to suppress the gun and Johnson was again convicted. The appellate court reversed, ruling that the warrantless search of the bag was not incident to Holloway’s arrest, and rejected the prosecution arguments that Johnson’s disclaiming ownership of the bag justified the warrantless search and that he lacked standing to challenge the search of property that he was criminally charged with possessing. The New Jersey Supreme Court affirmed. Johnson has standing to challenge the search because the duffel bag had not been abandoned. Neither Johnson’s nor Holloway’s denial of knowing who owned the bag was enough to strip either of standing. “A defendant should not have to sacrifice his right against self-incrimination to assert his constitutional right to be free from an unlawful search.” • GOVERNMENT No need to repay county official for attorney fees A county is not obliged to reimburse a deputy for attorney fees he incurred defending himself against a charge of voluntary manslaughter that arose out of a shooting that occurred while he was on duty, the Iowa Supreme Court held on Feb. 29. Richter v. Shelby County, No. 21/06-1165. Chad Butler, a Shelby County, Iowa, deputy sheriff, shot and killed Dwayne Jen after a high-speed chase. Butler hired attorneys David Richter and Lori Falk-Goss to represent him. A grand jury indicted Butler on a charge of voluntary manslaughter. Butler was acquitted of voluntary manslaughter. The attorneys submitted a bill for $63,013.50 to Shelby County, but the Shelby County Board of Supervisors said it did not have authority to pay the bill. The trial court entered judgment in favor of the attorneys. The Iowa Supreme Court reversed. Iowa Code � 331.756(6) provides that a county attorney “shall . . . defend all actions and proceedings in which a county officer, in the officer’s official capacity, or the county is interested or a party.” The court found that Butler was not defending in his official capacity. Although the underlying incident arose while he was in his official capacity, Butler was named as an individual and not as an agent or representative of the county in the criminal action. • IMMIGRATION LAW Trademark fraud deemed crime of moral turpitude Counterfeiting A registered trademark is a crime of moral turpitude for purposes of an alien’s inadmissibility under U.S. immigration law, the 9th U.S. Circuit Court of Appeals held on Feb. 27. Tall v. Mukasey, No. 06-72804. Elimane Tall, a citizen of Senegal, arrived in the United States in 1981 without a visa and was later convicted in separate incidents of counterfeiting a registered trademark in violation of Calif. Penal Code � 350(a)(2). Tall applied for adjustment of his immigration status, but the application was denied. The government later charged Tall as inadmissible for being an alien convicted of a crime involving moral turpitude under the Immigration and Nationality Act based on his trademark counterfeiting convictions. An immigration judge ordered Tall removed. Tall appealed to the Board of Immigration Appeals (BIA), arguing that his crimes were not crimes of moral turpitude. The BIA affirmed. Affirming, the 9th Circuit held that trademark counterfeiting was a crime of moral turpitude. The court said, “[Section] 350(a) is a crime involving moral turpitude because it is an inherently fraudulent crime. Either an innocent purchaser is tricked into buying a fake item; or even if the purchaser knows the item is counterfeit, the owner of the mark has been robbed of its value. The crime is really a species of theft.” • LEGAL PROFESSION Court contempt charge must meet new standard An attorney can be held in contempt only after a court has found that the attorney’s statements and conduct actually interfered, or posed an imminent threat of interfering, with the administration of justice and that the attorney knew or should have known that the statements and conduct went beyond the bounds of permissible advocacy, the Georgia Supreme Court held on Feb. 25. In re Jefferson, No. S07G1208. Sherri Jefferson, an attorney licensed in Georgia, was representing a client in a juvenile court delinquency proceeding when the trial court charged Jefferson with contempt, citing eight instances of allegedly contemptuous conduct, including inappropriate facial expressions, disrespectful tone of voice and improper statements. After the trial judge recused himself, a new trial judge ruled that two of the eight instances were contemptuous, and sentenced Jefferson to 30 days’ imprisonment and a $500 fine. An intermediate appellate court affirmed. Reversing, the Georgia Supreme Court created a new standard for attorney contempt in Georgia. The court said, “[W]e hold that an attorney may be held in contempt for statements made during courtroom proceedings only after the court has found (1) that the attorney’s statements and attendant conduct either actually interfered with or posed an imminent threat of interfering with the administration of justice and (2) that the attorney knew or should have known that the statements and attendant conduct exceeded the outermost bounds of permissible advocacy.” • TORTS Pro se litigant can’t bring whistleblower action A pro se litigant can’t bring a whistleblower suit under the U.S. False Claims Act, the 11th U.S. Circuit Court of Appeals held on Feb. 27 in a first impression decision. Timson v. Sampson, No. 07-1279. Proceeding pro se, John Timson filed a whistleblower suit under the False Claims Act (FCA), 31 U.S.C. 3729-3733. The act permits an individual, called a qui tam relator, to file a civil action, and recover damages on behalf of the United States, against any person who knowingly presents a false record or statement that seeks fraudulent payment from the government. If the government proceeds with the suit, cases are filed in the name of the U.S. government. If the government elects not to proceed with the action, the person who initiated the suit has the right to continue the action, even though the government is the real party in interest. A Florida trial judge dismissed the suit, finding that a pro se relator may not maintain a qui tam action. Affirming, the 11th Circuit noted that it had yet to decide this question and that the False Claims Act is silent on whether a private individual can bring a qui tam suit pro se. Under 28 U.S.C. 1654, “in all courts of the United States the parties may plead and conduct their own cases personally or by counsel.” However, the court explained, “The provision appears to provide a personal right that does not extend to the representation of the interests of others . . . .Therefore, Timson does not have authority under 28 U.S.C. � 1654 to proceed pro se in this qui tam action, and is without any authority to do so unless the FCA authorizes relators to litigate a qui tam suit pro se.”

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