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• CONSTITUTIONAL LAW No FOIA information request for Va. inmate The Commonwealth of Virginia committed no constitutional violation in barring prisoners from making requests for information under the Virginia Freedom of Information Act, the 4th U.S. Circuit Court of Appeals held on March 25. Giarratano v. Johnson, No. 06-7890. Joseph Giarratano, an inmate of Virgina’s prison system, suffered from hepatitis C. Seeking information about prison system protocol for treating prisoners with hepatitis C, Giarratano filed a request for information under the Virginia Freedom of Information Act. His request was denied based on VFOIA’s specific exclusion of requests from prisoners. Giarratano sued, arguing that VFOIA’s prisoner exclusion was unconstitutional. A Virginia federal court dismissed the suit. Giarratano appealed, arguing that the prisoner exclusion violated the equal protection clause of the 14th Amendment to the U.S. Constitution both on its face and as applied to him because he had no history of filing frivolous requests. Affirming, the 4th Circuit held there was no equal protection violation because the request did not involve a fundamental right. Prisoners aren’t a suspect class and prisoner exclusion is rationally related to the state’s legitimate interest in preventing frivolous requests. The court said, “Giarratano’s conclusory allegation about the lack of a rational relationship between VFOIA’s prisoner exclusion and any legitimate state interest is insufficient to plausibly state a claim for relief in light of the strong presumption in favor of the legislation’s rationality and the readily apparent justification for the legislation.”   Full text of the decision City smoking ban is not unconstitutionally vague A trial judge wrongly struck as unconstitutionally vague a city ordinance banning indoor smoking in public places, the 5th U.S. Circuit Court of Appeals held on March 27. Roark & Hardee v. City of Austin, nos. 06-51670 and 07-50441. Owners of several Austin bars sued the city, seeking an injunction and a declaratory judgment striking a 2005 ordinance aimed at ending smoking in bars, restaurants, workplaces and other enclosed public places. A violation was punishable by a fine up to $2,000 or by revocation or suspension of a city license. At issue in the suit was a provision requiring owners or operators of public establishments to take “necessary steps” to prevent smoking. The ordinance specifically mentioned posting of “no smoking” signs and removal of ashtrays. The plaintiffs alleged the ordinance violated the U.S. and Texas constitutions. The city had twice issued guidelines to clarify the meaning of “necessary steps,” adding actions such as asking patrons to stop smoking, asking patrons to leave and denying service to smoking patrons. A Texas federal judge struck three portions of the ordinance and granted a permanent injunction, blocking the city from enforcing “necessary steps” provisions other than the posting of no-smoking signs and removal of ashtrays; suspension or revocation of licenses without judicial review; and fines exceeding $500. The judge upheld the constitutionality of the remaining provisions and denied the plaintiffs’ motion for attorney fees. The city and the plaintiffs both appealed. Reversing, the 5th Circuit found that the plaintiffs had failed to establish their claim that the necessary-steps provisions were unconstitutional. “These guidelines not only provide standards to those inspectors enforcing the ordinance but essentially provide Plaintiff bar owners and operators a clear ‘how to’ guide for avoiding a violation under the ‘necessary steps’ provision,” the court said. Because the trial judge erred in finding the necessary-steps provision unconstitutionally vague, it was an abuse of discretion to grant a permanent injunction blocking enforcement of the ordinance. • IMMIGRATION LAW Entrant on visa waiver can’t contest removal A foreign national who fails to leave the United States within the 90 days permitted for his stay under the visa waiver program can’t prevent removal from the country by marrying a U.S. citizen after the 90 days expired, the 9th U.S. Circuit Court of Appeals held on March 31. Momeni v. Chertoff, No. 07-55018. Kambiz Momeni, a German national, entered the United States without a visa, pursuant to a visa waiver program that allows citizens of certain nations to enter the United States without visas if those nations extend the same courtesy to U.S. citizens. 8 U.S.C. 1187. He didn’t leave within the 90-day period and subsequently married a U.S. citizen. Following notification that he was subject to removal, Momeni applied for status adjustment based on marriage. Because, other than asylum applicants, visa waiver program entrants aren’t eligible for administrative proceedings, Momeni filed a petition for a writ of habeas corpus. A California federal court dismissed the petition. Affirming, the 9th Circuit noted that visa waiver program entrants specifically waive the right to contest removal for any reason other than political asylum and held that Momeni’s subsequent marriage to a U.S. citizen did not constitute a ground for contesting his removal. The circuit court said that its prior decision, Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006), doesn’t apply to Momeni’s case. The court said, “Freeman married before the 90 days expired . . . whereas Momeni married after his 90 days expired; Freeman applied for adjustment of status during the 90 days, whereas Momeni applied after the 90 days expired. These distinctions disqualify Momeni from circumventing the Visa Waiver Program’s no contest clause by means of adjustment of status.” • INSURANCE LAW Insurer staff lawyer may defend insured in suit An insurer may use staff attorneys to defend a claim against an insured if the insurer’s and the insured’s interests are congruent, the Texas Supreme Court ruled on March 28. Unauthorized Practice of Law Committee v. American Home Assurance Co. Inc., No. 04-0138. Two Texas insurers, American Home Assurance Co. and Travelers Indemnity Co., sought a state trial court declaration that use of staff attorneys to defend insureds against liability doesn’t constitute “unauthorized practice of law.” The Texas Supreme Court-appointed Unauthorized Practice of Law Committee counterclaimed for declaratory and injunctive relief. The trial court ruled for the committee. An intermediate appellate court reversed, holding that an “insurer’s right, as an employer, to control the details of its employees’ work does not create an irreconcilable conflict with the interests of an insured represented by a staff attorney . . . .A company that employs lawyers to represent its own interests is not engaged in law practice, and the situation is no different when such lawyers also represent insureds with like interests, even though conflicts may arise.” The Texas Supreme Court affirmed as modified. Three factors determine whether a corporation engages in the practice of law by employing staff attorneys to represent third parties. First, is the company’s interest in the representation ongoing or only prospective? Second, does the company have a direct financial interest in the underlying matter? Third, is the company’s interest aligned with the third party’s? Here, the insurer’s interests are ongoing, namely, fulfillment of a contractual obligation. The insurer has a substantial financial incentive to avoid having to pay a claim on its insured’s behalf. Most important, the insurer and insured usually have the same interest in defeating a liability claim. However, if an insurer acquires confidential information it can’t use against the insured, or an insurer attempts to compromise a staff attorney’s independent, professional judgment, then the insurer can’t use the staff attorney to defend the insured without engaging in the practice of law. • LEGAL PROFESSION Lawyer misconduct may justify equitable tolling Serious attorney misconduct may entitle a Florida death row inmate to equitable tolling of the federal limitations period for habeas corpus petitions, the 11th U.S. Circuit Court of Appeals held on March 24 in a first-impression decision. Downs v. McNeil, No. 05-10210. Ernest Charles Downs was sentenced to death for a 1971 murder. Representing Downs were seven lawyers from Capital Collateral Regional Counsel, which provides post-conviction representation for Florida’s indigent death-row inmates. Downs’ one-year federal habeas limitations period began in October 1999. He repeatedly and unsuccessfully sought meetings with his lawyers. Downs reviewed a draft of a proposed state habeas petition, which the lawyers claimed they had filed, but in fact had not done so. Filing the state habeas petition would have tolled the federal habeas limitations period. On the last day to file a federal habeas petition, Downs’ lawyers filed the state habeas petition. Subsequently, two lead lawyers resigned and a new lawyer joined the case. The lawyers filed a federal habeas petition but more than a week past the deadline. Downs fired the lawyers and proceeded pro se in a Florida federal court, which denied the petition, saying attorney negligence is insufficient to warrant equitable tolling. Reversing and remanding, the 11th Circuit said, “We believe the fact-specific, case-by-case approach taken by the majority of our fellow circuits is better suited to an equitable inquiry than . . . the bright-line approach to egregious attorney misconduct adopted by the Seventh Circuit.” • MEDIA LAW County told to disclose sexual harassment report A county may not withhold from the press, under Utah’s Government Records Access and Management Act, a report of an investigation into an official’s alleged sexual harassment, the Utah Supreme Court held on March 28. Deseret News Publishing Co. v. Salt Lake County, No. 20060454. An employee of the Salt Lake County Clerk’s Office in Utah filed a sexual harassment complaint against the office’s chief deputy, Nick Floros. The clerk referred the investigation to the county District Attorney’s Office, which retained two independent attorneys to conduct an investigation. They prepared a 23-page report, which the DA’s office summarized. The summary was given to the media. A Deseret Morning News reporter submitted a request under Utah’s Government Records Access and Management Act for a copy of the full report. The county denied the request, citing its policy of withholding from public access records “that are considered protected, confidential and/or private.” The DA’s office called the information “protected” under the Utah statute, as it was “created or maintained for administrative enforcement [or disciplinary] purposes,” and said its release “reasonably could be expected to interfere with investigations undertaken for enforcement, discipline, licensing, certification, or registration purposes.” The newspaper brought suit. After conducting an in-camera review of the report, a Utah state court held that the county had properly withheld the report and granted it summary judgment. Reversing, the Utah Supreme Court said the court owed no deference to the county’s advance classification of sexual harassment investigative reports as “protected.” Further, under the Utah statute’s evaluative regimen, a governmental entity must weigh competing interests. Here, the county took a contrary view, insisting that the statute contemplated a preliminary review of the propriety of its initial classification of the report without weighing the public interest. The district court erred in adopting the county’s flawed analytical approach. • TORTS Host who didn’t serve minors alcohol not liable Social hosts who don’t provide alcoholic drinks to underage guests yet allegedly knew that minors were drinking alcohol on their property can’t be held liable under a common law negligence claim, the Wisconsin Supreme Court held on March 25. Nichols v. Progressive Northern Insurance Co., No. 2006AP364. Shannon Nichols and members of her family were injured when their car was struck by another vehicle. They sued Beth Carr, the driver of the car that hit them, alleging that Carr had consumed alcohol at a party at the home of Edward and Julie Niesen. The Nichols also alleged that the Niesens were aware that minors gathered at their home were consuming alcohol and that they were negligent in failing to “supervise and monitor the activities on their property.” A trial court dismissed the negligence claim against the Niesens, but an intermediate appellate court allowed the Nichols to proceed with their claim. Reversing, the Wisconsin Supreme Court said that on ground of public policy a common law claim for negligence can’t be maintained against social hosts who didn’t provide the alcohol yet might have known guests were drinking. “To hold otherwise would be a significant extension of common-law liability,” the court said. “Liability for a social host who did not specifically know of the particular person drinking and who did not provide the alcohol places too unreasonable of a burden on that social host.” • TRANSPORTATION Federal law pre-empts Passenger Bill of Rights The Federal Airline Deregulation Act of 1978 pre-empts New York’s Passenger Bill of Rights, the 2d U.S. Circuit Court of Appeals ruled on March 25. Air Transport Association of America Inc. v. Cuomo, No. 07-5771. Because of several high-profile incidents in which airline passengers were stranded on runways without food or water, the New York state Legislature enacted the Passenger Bill of Rights. One portion of the law required that, in the event of a three-hour delay prior to takeoff, airlines provide fresh air, adequate food and water, and waste removal for on-board restrooms. The Air Transport Association of America, a trade and service organization of the U.S. airline industry, challenged the law in a New York federal court, saying it violated the Airline Deregulation Act, whose express pre-emption provision governs “price, route, or service of an air carrier.” The court upheld the law, saying the federal law doesn’t pre-empt it because the New York law is not “related to a price, route, or service of an air carrier.” The 2d Circuit reversed, holding that it had “little difficulty” concluding that requiring airlines to provide food, water and adequate restrooms relates to air-carrier service. Pointing to the U.S. Supreme Court’s recent decision, Rowe v. N.H. Motor Transp. Ass’n, 128 S. Ct. 989 (2008), which held that federal law pre-empts two provisions of a Maine tobacco transport law, the 2d Circuit said that “service” should extend beyond airline prices, schedules, flight origins and destinations. If the New York law’s provisions were allowed to stand, “another state could be free to enact a law prohibiting the service of soda on flights departing from its airports, while another could require allergen-free food options on its outbound flights, unraveling the centralized federal framework for air travel.”

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